Long Wait For Judicial Appointments
Posted: 20/Aug/2020

Nearly 10 months after the National Judicial Council (NJC) nominated four Justices of the Court of Appeal for elevation to the Supreme Court, President Muhammadu Buhari is yet to act on the recommendation. The NJC last Thursday recommended another 22 judicial officers, four of whom are for the Supreme Court. Will they suffer the same fate? Stakeholders warn that the President’s inaction is worsening justice delay, among other problems, writes ADEBISI ONANUGA.
 
THE National Judicial Council (NJC) last Thursday recommended the appointment of 22 judges and justices for the approval of President Muhammadu Buhari and subsequent confirmation by the Senate.

Among them are four justices of the Court of Appeal who were first recommended to the President on October 23, 2019, but he has not acted on the NJC’s nomination.

The four justices are: Adamu Jauro (Northeast), Emmanuel A. Agim (Southsouth), C. Oseji (Southsouth) and Helen M. Ogunwumiju (Southwest).

They bring to eight the number of justices awaiting the President’s approval for elevation to the Bench of the Supreme Court of Nigeria.

The other newly recommended justices for the apex court are: Tijjani Abubakar (Northeast), Justice Mohammed L. Garba (Northwest), Justice Abdu Aboki (Northwest) and Justice Mohammed M. Saulawa (Northwest).

The latest recommendation is part of the decisions of the NJC at its second virtual meeting held on August 11 and 12, and chaired by the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad.

Power to appoint apex court justices

Supreme Court justices are appointed by the President on the recommendation of the National Judicial Council (NJC), subject to confirmation by the Senate as required by Section 231(2) of the Constitution. However, President Buhari’s delay to approve the list of justices and judges and forward their names to the National Assembly for confirmation, to fill the vacancies in the apex court, has become a matter of concern to stakeholders.

Composition of Supreme Court Justices

Section 230(2)(b) of the 1999 Constitution (as amended) stipulates that the Supreme Court of Nigeria  “shall consist of such number of justices not exceeding 21.

The composition is to make for easy empanelment of the justices for disposition of cases.

But the Supreme Court has never had its full complement of justices over the years. At the moment, there are only 12 justices, including the CJN.

Concern over shortage of justices

One effect of the delay is overflowing dockets on the apex Bench, such that cases have already been fixed for 2022, although urgent matters such as election petitions are often granted preference.

CJ Muhammad lamented the problem at a special valedictory court session on December 12, 2019. He expressed same concern at the valedictory court session for Justice Amiru Sanusi on February 3.

Muhammad said: “Barely seven weeks ago, being Thursday, December 12, 2019, we assembled here to honour our brother, Justice Kumai Bayang Aka’ahs, JSC, OFR 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.”

He noted the increasing number of appeals flooding the court daily, stressing that “the highly-embarrassing litigious nature of Nigerians gives no space for the justices of the court to rest their nerves.

“We are daily inundated and suffocated with cases of different types that we can hardly have time for ourselves and our families.”

Effects of overburdened apex court

Last January 14, the Supreme Court was forced to adjourn a scheduled hearing in the appeal over the Benue State governorship election dispute and other similar cases on account of the court’s heavy workload. Justice Muhammad, who announced the adjournment, said the apex court was overburdened. He called for constitutional amendments to reduce the number of cases that end up at the apex court.
 
As at that time, the court had a 14-member panel, seven short of the maximum 21 recommended by Section 230(1).

Last February, a member of the House of Representatives, Onifiok Akpan Luk, joined the call for Buhari to appoint more apex court justices, noting that the problem was slowing down justice dispensation.

Adopting a motion of urgent public importance, Luk noted that with the present composition of the Supreme Court, it would be impossible to constitute two panels to sit on appeal.

He expressed the belief that some cases have stayed undecided in the Supreme Court for over 10 years as a result of the shortage of justices.

More apex court justices to retire

No less than seven of the 12 apex court justices will retire on or by 2023 on attainment of the 70 years mandatory retirement age.

CJN Muhammad will retire in 2023. He was born on December 31, 1953. Justices Amiru Sanusi and Paul Galumje left in February and April this year, respectively, after attaining 70 years. Justices Bode Rhodes-Vivour and Sylvester Ngwuta will retire in March 2021; Justice Mary Odili in 2022, while Justice Amina Augie will retire on September 3, 2023.

Anxiety in Justice sector over President’s delay

Even if President Buhari approves the two list of justices to be elevated to the Supreme Court and those of other judges, that won’t end the problem.  The fact that another set of two justices will retire by the middle of next year is causing concern in the justice sector, particularly given the President’s reluctance to approve the nominated names. Observers are worried that unless the President acts fast, the volume of appeals will continue to pile up.

What options are left to the NJC in terms of getting President Buhari to approve its nominees? What can be done to change the trend at the apex courts whereby successive governments fail to fill spaces left by retired justices?

Constitutional lawyers, including Seyi Sowemimo (SAN), Louis Alozie (SAN) and Dr. Fassy Yusuf, proffered solutions to the problem.

Sowemimo: Appoint competent lawyers directly from the Bar

Sowemimo, who welcomed the move to fill the vacancies at the Supreme Court, reasoned that it was long overdue and partly accounted for the court’s unusually high workload.

He said: “The need, however, is to diversify appointments to the Supreme Court by appointing senior lawyers directly from the Bar as we have done previously and as is the case in many countries.”

According to him, such a move “will broaden the perspectives from which judgments will be arrived at and inevitably enhance the quality of judgments emanating from the court.

“Candidates from the academia should also be considered. For instance, Prof Bora Laskin was appointed directly from the Law Faculty of the University of Toronto to the Court of Appeal, and about five years thereafter to the Canadian Supreme Court and became Chief Justice of Canada.”

Sowemimo noted that Justices Teslim Elias and Augustine Nnamani are closer examples of appointments from the Bar. He contended that appointments through promotions on the Bench will always provide a ready pool for appointments to higher courts, but that this should not be the only criterion.

“The Body of Senior Advocates has been canvassing this diversification for years, but we are very slow in this country to embrace reforms,” Sowemimo said.

Alozie: Supreme Court needs 50 justices

Like Sowemimo, Alozie welcomed the recommendation of four more justices for appointment, but argued that even that number was inadequate for an efficient Supreme Court.

He said: “We commend the NJC for the recommendation, hoping that the President will appoint them along with four earlier recommended ones without much delay. However, we believe that in the light of the volume of work facing justices of the Supreme Court, more justices are required in the apex court.

“We recommend that the Supreme Court needs at least 50 justices to minimise delays in dispensation of justice.”

Noting that “justice delayed is justice denied,” Alozie said a situation where appeals remained at the Supreme Court for many years before they are heard “was not encouraging at all.

“Many convicts who lodged appeals against their convictions have died before the appeals were considered ripe for hearing; this is to say the least unfortunate.”

Alozie further suggested that in appointing or elevating justices to the Supreme Court, “the NJC should look beyond serving justices, especially those at the Court of Appeal.

“Those now recommended for elevation to the Supreme Court are already advanced in age and have only a few years to serve before retirement. This is not good for the country. Young, articulate judges and practising lawyers can be appointed to the Supreme Court.

“There is nothing wrong with appointing justices of Supreme Court from the Bar provided those appointed are brilliant and healthy and of high integrity.

“To my mind, this is the only way to solve the problem of depletion in the number of justices of the Supreme Court because nobody can cheat nature. In terms of output of productivity, much younger justices would deliver faster justice.”

Dr. Yusuf also noted that the inadequate number of justices and judges to service the judiciary is a recurring decimal.

He said: “The Court of Appeal and all the High Courts are all short staffed. This scenario leads to delay in justice dispensation, and, as we say, justice delayed, is justice denied. The National Assembly should amend the Constitution to allow for more justices to come on board and ease the burden of those dispensing justice especially at the apex court.”

Yusuf tasked the NJC to reduce the bureaucracy in the appointment of justices. He argued that application for appointment including profiling and security clearance  of nominees could be done within three months.

Furthermore, he suggested that the President should be able to forward the list or names to the National Assembly within two weeks after due diligence.

“People can have hope in the judiciary if justice is expeditiously dispensed.

“Of course, the judiciary should adopt modern technology in justice administration and delivery. Anachronistic and archaic methods should be jettisoned. We have a lot to learn from saner climes. Without speedy and unassailable justice, the society would be brutish and people would be resulting to self-help”, he said.