Reduction in the Number of Justices of the Supreme Court – The Implications

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Ade Adesomoju, in this piece, highlights the implications of the continued reduction in the number of Justices of the Supreme Court without appointment of replacements

The valedictory court session held in honour of Justice Amiru Sanusi at the Supreme Court on Monday is a two-sided coin for him and his former colleagues on the apex court’s bench.

The flipside of the event, marking the beginning of a rest time for the Funtua, Katsina State-born jurist, is more work for the other 13 Justices of the apex court he left behind.

The Nigerian Constitution provides for 21 Justices as the full complement of the Supreme Court, but the court has never attained this status.

The number of the apex court Justices sharply declined from 17, which it reached with the swearing-in of Justice Uwani Abba-Aji, on January 8, 2019, to 14 following the retirement of Justice Kumai Aka’ahs on December 12, 2019.

In-between Abba-Aji’s appointment and Aka’ah’s retirement within the year, the Supreme Court saw the controversial exit of the then Chief Justice of Nigeria, Justice Walter Onnoghen, and the retirement of Justice Sidi Bage, who voluntarily left the bench to take up a new role as the Emir of Lafia.

Justice Sanusi’s exit from the bench on attaining the mandatory retirement age of 70 earlier on Sunday (February 2), dropped the number of Justices of the Supreme Court to 13.

While congratulating Justice Sanusi at the valedictory court session held in his honour on Monday (February 3), the CJN, Justice Tanko Muhammad, who has been persistent in lamenting the workload which the Justices of the apex court have had to grapple with, expressed worry over the new low to which the number of the apex court Justices had sunk.

 He said, “You will recall that barely seven weeks ago, being Thursday, December 12, 2019, we assembled here to honour our brother, Justice Kumai Bayang Aka’ahs, in a similar valedictory session.

“That ceremony painfully occasioned the depleting of our ranks at the Supreme Court. In a similar fashion, this session, too, is billed to further drastically reduce the number of Supreme Court Justices to as low as 13.

“This is not cheering news in view of the ever-increasing number of appeals that flood the court on a daily basis.”

The CJN said as he and his colleagues “are daily inundated with cases of different types”, they “can hardly have time for ourselves and our families”.

More cases, less Justices

The workload of the apex court is such that Justice Muhammad’s predecessor, Justice Onnoghen, declared in a statement on October 8, 2018 that the Supreme Court’s diary was already filled till 2021.

It implied that no new appeals, except the ones relating to elections, could be accommodated in the court’s diary for hearing until 2021.

In the statement issued on his behalf by his then Special Assistant on Media, Mr Awassam Bassey, Justice Onnoghen warned that “the situation therefore leaves no room for unnecessary adjournments arising from lack of diligent prosecution, poor preparations or non-appearance by counsel.”

Onnoghen also made this point when, on January 8, 2019 during the swearing-in of Justice Abba-Aji as a Justice of the apex court, he said, “This means that everyone must come to the court fully prepared for the business of the day, including the Justices, more than anyone else.

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“What that means is that there is a lot of work waiting to be done here, especially with pre-election and post-election matters that will arise from the 2019 general elections.”

Two panels can’t sit simultaneously

With the concerns raised by the successive CJNs about the workload of the Supreme Court, one would have expected to have a Supreme Court with its full complement of 21 Justices pending when the more far-reaching legal reforms concerning the court and the judiciary at large, would see the light of the day.

Having 21 Justices of the Supreme Court would enable the court to have minimum of two panels sitting simultaneously.

This will fast-track the decongestion of the court with the attendant effect of reducing the agony of litigants who sometimes wait for a decade to have their cases mentioned at the apex court.

But under the current situation, the Supreme Court can hardly have two of its panels sit simultaneously, according to a Senior Advocate of Nigeria, Mr Kunle Ogunba.

In case of an emergency requiring an urgent intervention of the Supreme Court on constitutional matters, the apex court with only 13 Justices cannot form two full panels of seven Justices, each, that can sit simultaneously.

More Justices to retire

Without any urgent effort to fill the vacancies on the apex court’s bench, the situation will become direr as findings by our correspondent show that another Justice of the court, Justice Paul Galinje, will retire in less than three months’ time.

Justice Galinje’s profile on Wikipedia, which shows that he was born on April 21, 1950, implies that he will retire on April 21, 2020, a development which will plunge the number of the Justices of the apex court to 12.

This is as two more Justices of the court, Justices Olabode Rhodes-Vivour and Sylvester Ngwuta, who currently occupy the second and the third positions, respectively, on the apex court’s bench, are set to retire in 2021.

Stalled appointment process

The situation has raised concerns as to why the President, Major General Muhammadu Buhari (retd.), has yet to act on the National Judicial Council’s list recommending four Justices for appointment to the apex court bench since October last year.

Many had received it as cheering news when in June 2019,  Buhari wrote a letter requesting the CJN to “initiate, in earnest, the process of appointing additional five Justices of the Supreme Court of Nigeria to make the full complement of 21 Justices” as provided by the Constitution.

The NJC, which immediately swung into action, subsequently issued a statement through its Director, Information, Mr Soji Oye, stating that that it had at its meeting held on October 22 and 23, 2019 recommended Justices Adamu Jauro, Emmanuel Agim, Sam Oseji, and Helen Ogunwumiju to the President for appointment to the apex court’s bench.

But more than three months after, the President has yet to act on the list by sending it to the Senate for the screening of the nominees as required by the Constitution.

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Meanwhile, a civil society group, Access to Justice, on November 27, 2019, filed a suit before the Federal High Court in Abuja, praying for an order quashing the process of the recommendation of the four Justices for the appointment to the Supreme Court bench.

The group alleged that the Federal Judicial Service Commission did not fully comply with the Judicial Appointment Guidelines, particularly with respect to making a public call for expressions of interest in the vacant positions and notifying the Nigerian Bar Association of the vacancies and calling for nominations before it drew up a list of candidates it submitted to the NJC.

The FJSC, NJC, the President, the CJN and the Senate are the respondents to the suit.

It remains unclear whether the delayed action of the President on the NJC’s list relates to the suit filed in court.

But despite the pending suit, some lawyers have called for the urgent appointment of more Justices to the Supreme Court bench.

One of the lawyers, Dr Alex Izinyon (SAN), said with more divisions of the Court of Appeal being created, the Supreme Court was bound to have more workload to contend with.

He said having a full complement of 21 Justices would help the court to operate optimally, while the reduced number of Justices of the court would impact negatively on its efficiency and productivity.

He said, “Although the Constitution provides for 21 Justices as the full complement of the Supreme Court, we have never got to that 21 from day one, for reasons nobody knows.

“The full complement of the court will produce optimal level of performance, because the workload will be better shared.

“The Justices are now at 13, which is eight Justices away from 21. We know that the workload at the Supreme Court will be too much. I don’t see why the executive will not, as a matter of urgency, submit the names of the four that have been recommended for Senate screening and approval.

“Recently, we have now seen that many divisions of the Court of Appeal are being created, that means more appeals from the Court of Appeal to the Supreme Court, in which case, the workload at the Supreme Court will be double.

“The earlier we deal with this issue, the better. If people are overworked, the productivity and efficiency will reduce with the attendant health hazards.”

Another SAN, Ogunba, said “the number of Justices is too low considering the volume of work the Justices of the Supreme Court do.”

He added, “I think the National Judicial Council should take it as a matter of extreme urgency because if you look at it from the point of view that the Court of Appeal keeps expanding with new divisions and volume of cases it handles, it is killing to have only 13 persons to preside over the cases of over 200 million people.

“Appointing more Justices to the Supreme Court should be taken as an emergency. There is constitutional provision for the Supreme Court Justices to be up to 21 but the court has never attained that number.”

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Like Izinyon, Ogunba said the situation “calls for urgent attention, as you know that the quality of judgment is affected by the pressure of work”.

He also noted that with 13 Justices sitting on the court’s bench, it would be difficult for the court to have two panels sitting simultaneously.

He added, “If there are meant to be two panels of five Justices each, one thing or the other might take one or two of them out of jurisdiction, to form two panels becomes a challenge. Really, for speedy dispensation of justice, I think the number of Justices needs to increase urgently.”

A former Vice-President of the Nigerian Bar Association, Mr Monday Ubani, also expressed similar points, saying “It is not fair to the Justices to have such a reduced number of Justices presiding over cases at the Supreme Court.”

On the negative impact of low number of Justices at the Supreme Court, Ubani said, “At the Supreme Court, legal policies are made by their decisions.

“But when the caseload is much, they don’t even have the time to digest these cases and expand the law. This will stultify the growth of our jurisprudence.

“I think the President should be well advised to actually ensure the appointment of more Justices especially when four have been recommended to him for appointment to the bench since October last year.”

But he added that beyond appointing more Justices to the Supreme Court bench, there should be the establishment of “regional Supreme Courts, which will be the final courts for most cases from the various states and the Supreme Court of Nigeria, will only handle constitutional matters and other issues that don’t border on everyday litigation”.

He also called for the appointment of “very senior members of the Bar into the Supreme Court to bring fresh ideas to the development of our jurisprudence”.

Reacting to the continuous drop in the number of the apex court, the Nigerian Bar Association had, in an earlier report by The PUNCH, said the delay in the process of appointing the four Justices recommended by the NJC for the apex court’s bench, had “created unhealthy burden on the Supreme Court Justices who are now forced to over work themselves”.

The association’s National Publicity Secretary, Mr Kunle Edun, Edun, said in the interview with our correspondent that it was “worrying” that the Supreme Court had been unable to get its full complement of 21 Justices.

Calling on Buhari to act on the list sent to him by the NJC, Edun added, “In many cases appeals stay in the Supreme Court for 10 years before one can get a hearing date.

“This should not be the case. When justice is delayed it could propel litigants to resort to other options to settle scores, which would not help the society.”

Punch

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