Nigerian lawyers yesterday roundly opposed the call by a ministerial nominee for the setting up of regional Supreme Court to decongest the apex court of the series of cases pending before it.
Instead of zonal Supreme Court in the country’s six geo-political zones, the legal luminaries canvassed further amendment of the 1999 Constitution (as amended) to ensure not all matters or appeals lie or get to the apex court in line with international best practices.
A ministerial nominee from Delta State, Mr. Festus Keyamo (SAN), told the Senate last Friday during his screening that if appointed the attorney-general of the federation (AGF) and minister of justice by President Muhammadu Buhari in next cabinet, he would pursue the unbundling of the Supreme Court because it was “scandalous” to have only one apex court in Abuja, attending to the whole country.
Keyamo said that he would press for constitutional changes to create six regional Supreme Courts if he was appointed the minister of justice and AGF.
But in separate interviews with LEADERSHIP, several lawyers disagreed with Keyamo on the creation of six regional apex courts, warning that it could lead to anarchy in the judiciary.
The eminent lawyers included Chief Emeka Ngige (SAN), immediate past Deputy Director-General and Head of Campus of the Nigerian Law School, Augustine Nnamani Campus, Agbani Enugu, and also a 2018 Nigerian Bar Association presidential election contestant, Prof. Ernest Ojukwu (SAN), Former Nigerian Bar Association President, Olisa Agbakoba (SAN), Prof. Yemi Akinseye-George (SAN), Chief Mike Ahamba (SAN), and Muktar Abanika.
They contended that the establishment of the regional apex courts at present is impracticable because it will breed anarchy and confusion in the country’s court system.
The legal practitioners drawn from the Bar and the academics, noted that the judiciary leadership was yet to come up with initiatives to combat frequent conflicting judgements delivered at different jurisdictions of the Court of Appeal and warned that it would amount to ‘”judicial suicide” to create regional Supreme Courts.
They also pointed at the audacity of some High Court judges attempting to interpret or seize some judgements delivered by the Supreme Court, adding that such regional apex courts shall be highly affront of the current Supreme Court of Nigeria.
The lawyers said that the Supreme Court is overburdened because of the country’s constitution and the current system which allows automatic right of appeal in all matters to the Supreme Court and called for its review. They further held that there should be drastic reduction in the number and types of cases that should be heard in the Supreme Court even as they recommended that the appellate jurisdiction of the Supreme Court as provided for under Section 233 of the Constitution be altered for some appeals to terminate at the Court of Appeal.
According to Ngige, ‘’regional Supreme Court otherwise referred to as unbundling of the court is not the solution to the congestion of cases at the apex court.
‘’The full complement of 21 justices should be put in place as a matter of urgency. The Nigerian constitution should be amended to allow for the appointment of ad-hoc justices comprising of retired justices of the apex court and erudite SANs to sit and clear the backlog of cases. Appeals on customary or sharia related matters should end at the Court of Appeal,’’ he said.
Consequently, the lawyers said that only serious constitutional cases, human rights, litigation between arms of government and between the federating units, and criminal matters with capital punishment should go to the Supreme Court.
Similarly, issues relating to the election of the president of the country could be added to cases to be heard by the apex court.
In his response, Ojukwu said: ‘’No I do not support the creation of zonal Supreme Courts. We should rather drastically reduce the number and types of cases that should be heard in the Supreme Court.”
All other cases, according to Ojukwu, should stop at the Court of Appeal of a state that “we should create. The present Court of Appeal should also only have powers to hear such cases that the Supreme Court can determine.’’
Still countering the ministerial nominee’s proposal, the lawyers advocated that the Supreme Court should be given the powers to have a discretion on what cases or case that can be heard by the concurrence in chambers of not less than seven justices.
However, a fewer lawyers advocated for the devolution of power from centre to federating units rather than creating regional apex court. They said that the federating units could all have their appellate courts irrespective of how they styled them.
While endorsing the ad-hoc arrangement, the lawyers said that in the United Kingdom (UK), her Constitutional Reform Act 2005 provides for acting judges to be appointed from a pool of judges of lower courts or of retired jurists referred to as “supplementary panel” to sit with the regular justices if the need arises . A similar provisions in Nigeria, they averred would make the backlog of appeals in the Supreme Court to be cleared within two years.
In his contribution, Agbakoba said: “It’s a good call, and lies at the policy behind devolution of powers from centre to the federating units. So I will modify the policy behind unbundling to say what is needed is devolution of powers so that the federating units will have their appellate courts however styled.
‘’The appeal courts are all federal courts so unbundling is not the way to go but devolution of powers,’ he said’.
Prof. Akinseye-George said that “as a matter of urgency the backlog of cases pending at the Supreme Court must be reduced. Many appeals are filed for the purpose of delaying justice. There are several ways to prevent this.
“I do not subscribe to the idea of regional Supreme Courts.. Rather, the Supreme Court should issue new practice directions limiting the types of cases going before the court.
“Many interlocutory matters should end at the Court of Appeal. There should be a panel on restatement of settled principles of Nigerian law. Any appeal on such matters should not attract detailed judgements.
“Heavy costs should be awarded against parties bringing appeals on settled principles. There are several other ways. Creating regional Supreme Courts is a simplistic approach. It will not solve the problem”, Akinseye-George stated.
In Ahamba’s words, ‘’regional Supreme Courts cannot be created without the amendment of the constitution, because a body unlawfully established can be challenged over a decision taken. And at that time the truth shall be unveiled.
‘’However, the people complaining are not happy with the court system in Nigeria. Unfortunately, what the 2014 National Conference recommended was not practicable,’’ he said.
Abanika, an Abuja based lawyer, said: ‘’Regional Supreme Courts shall compound our current legal conundrum. You would find out later that the litigation journey would be lengthier and complicated. It will rather breed anarchy and confusion in the court system in Nigeria. The judiciary is still grappling with frequent conflicting judgements delivered at different jurisdictions of the Court of Appeal, hence it would amount to ‘judicial suicide’ to create regional Supreme Courts.
‘’Of course, Supreme Court is overburdened because of our constitution and the current system that allows automatic right of appeal in all matters to Supreme Court has to be reviewed.
‘’The appellate jurisdiction of the Supreme Court as provided for under Section 233 of the Constitution should rather be altered for some appeals to terminate at the Court of Appeal.
‘’Appeals should not be automatic but by leave of court to reduce inflow of appeals. Only cases that raise constitutional issues or point of law should be appealed to the apex court as practiced in USA, where they don’t sit on appeals more than 100 a year.
‘’If restrictions are so applied then, what now comes to the apex court can change law. Too many appeals lead to confusion in the law and frequent revision of the law’’, Abanika stated.
Justice Ibrahim Tanko Muhammad had said during his recent screening for confirmation as the chief justice of Nigeria (CJN) by the Senate that he would initiate a bill to amend the 1999 Constitution to further strengthen the judiciary for speedy dispensation of justice.
On October 8, 2018, the immediate past CJN, Justice Walter Onnoghen, disclosed that the Supreme Court diary was full with appeals set down for hearing up to the year 2021.
But LEADERSHIP findings showed that only appeals filed between 2006 and 2009 had dates of hearing/determination from then till the end of 2021. Whereas, appeals or cases brought to the Supreme Court from 2010 till that time (eight years running) were yet to get dates of hearing and shall be assigned hearing dates from 2022 and beyond. Cases affected are civil in nature. A source at the Supreme Court during that time said it would take up to 2028 to clear those eight-year-old cases.