Now that the Supreme Court Has a Full Bench  -By Chidi Anselm Odinkalu

 Chidi Anselm Odinkalu

As Nigerians prepared for the holiday season to end 2023, the National Assembly in Abuja on 21 December hurriedly undertook and voted through the confirmation of 11 nominees for appointment to the Supreme Court. The installation of the new Justices in this elevated judicial role was delayed as the Supreme Court worked to wind down the appellate season on petitions from the 2023 election season, some of which challenged decisions involving some of the new nominees to the Supreme Court.

On 26 February, 2024, the Chief Justice of Nigeria (CJN), Olukayode Ariwoola, will administer the oaths on the 11 new Justices of the Supreme Court. This represents the largest single complement of new intake onto the bench of the court, beating the previous high water mark of eight justices who took their seats on the court in November 2020. It will also mark the first time in its history that the court will have the full complement of 22 Justices (21 Justices and the Chief Justice) as provided by Nigeria’s 1999 Constitution.

This situation will not last long though. If the court is not to suffer depletion in its numbers again, attention will have to be paid to the factors that got it to where it has been to begin with.

19 months after swearing in the eight new Justices of the Supreme Court in 2020, Ibrahim Tanko Muhammad abdicated as CJN, toppled in an unprecedented mutiny against what clearly was an extreme case of judicial mal-administration, if not malfeasance. He was the second CJN to be forced out of the office for being blemished unlike Caesar’s wife. The avoidable and premature loss of two Chief Justices in less than three years is not just careless; it is a pathology.

But this was not the only reason why the court was run down in both the numbers of its Justices and in its institutional reputation. 10 months after his swearing in as a Justice of the Supreme Court, Samuel Oseji died in September 2021. Six months earlier, Sylvester Ngwuta, one of the senior-most Justices on the Court, had died in March of the same year. 22 months after the passing of Justice Oseji, Chima Nweze, another Justice of the same court, died at the end July 2023. That brought to three the number of Justices of Nigeria’s Supreme Court who had died over a period of 27 months.

It is the case that an overwhelming majority of those who rise to become Justices of the Supreme Court in Nigeria get there north of the average life expectancy for the country. That notwithstanding, it remains the case that a situation in which the country suffers the death of a Justice of the Supreme Court at an average rate of one every nine months is a symptom of workplace dysfunction of the most morbid kind. The court must look at how it replaces departing Justices and even more at how it organizes and manages both work and wellbeing among them.

Let’s begin with replacement and appointment. Over the next three years, the court is guaranteed to lose at least five of the current complement to natural attrition. Chief Justice Olukayode Ariwoola will retire in August this year. In September 2026, Justice Ibrahim Mohammed Saulawa is due to retire to be followed in quick succession by Uwani Abba Aji two months later; Helen Ogunwumiju in March 2027 and Jonah Adah three months later.

These appointments to the Supreme Court will be the first since 2020. The only new appointment of any significance affecting the court was the replacement of Chief Justice Tanko Muhammad by the current incumbent in 2022. Indeed, no vacancy has been filled on the court since the resignation of Sidi Bage resigned in March 2019 to become the Emir of Lafia. Since then, in addition to the Justices lost to death, at least seven other Justices have retired from the court. There is no excuse for the delay and dithering that has followed in the wake of those retirements.

At least two successive attempts to appoint Justices before the latest were aborted because of low politics unbefitting of both the process and of the institution of the Supreme Court. It is to be hoped that the process of judicial elevations to the Supreme Court bench will become more transparent and less prone to base politics of the sort the court has recently endured. That will guarantee that replacements are both timely and fit for purpose.

Next is health and wellbeing on the court. Anthonia Ochei reports that “although retirement and resignation are reasons for which a judicial officer may leave active service, more often than not, justices of the Supreme Court have been forced to leave office as a result of ill health that have most times resulted in death.” For most of the past decade, Nigeria’s Supreme Court has laboured under a crippling burden of case work matched by an equally crippling loss of judicial personnel. These two trends may be related.

The Supreme Court is overwhelmingly a court of last appellate instance. It receives a few cases in its original jurisdiction as the only court empowered to decide disputes between states of the federation or between states and the federation.

The doctrinal position of the court to date is essentially that it has no control over the appeals that can be filed with it. Under the constitution, all persons under a penalty of death are entitled to appeal to the Supreme Court. No one could possibly quarrel with this.

Appeals also go to the Supreme Court in relation to disputes concerning presidential and governorship elections. A majority of voters in Kano and Plateau States will agree with this, surely. These account for only a fraction of the appeals that currently burden the dockets of the Supreme Court but for an inordinate proportion of judicial stress because they all get priority and must be decided on a short judicial calendar.

Litigants who have appeals on questions of law arising from decisions of the Court of Appeal can also proceed to the Supreme Court, irrespective of how trifling it may be. Last September, retiring senior Justice, Amina Augie, complained about how the court once sat on an appeal from a State in a case involving 12 burnt goats. A case of 12 goats could, nevertheless, raise legal issues of extraordinary significance although that does not appear to have been the case if it was the source of complaint in the court’s conference, as the retiring Justice reported. The dockets of the court are overrun by interlocutory appeals.

Supreme Court Justices insist that they can only be saved by a constitutional amendment limiting the kinds of cases that end up on their dockets. Such an amendment may no doubt help but the Justices are not as helpless as they imply. Better court administration can help. Fuller digitization of the court and its library could also assist with speed of judicial conferencing, court administration and decision making. Properly administered judicial clerkships can relieve the Justices of some of the tedium of research and writing. And they can also interpose by doctrine or rules a summary procedure (without the need or necessity for hearing) for appeals that are clearly without bases or justification other than attrition or time wasting.

It is courteous to wish the new Justices credible and successful tenures as Supremes but that wish can only come to fruition in a court that is administered humanely and is not in deficit of public trust. On both counts, Nigeria’s Supreme Court currently has a lot of work to do.

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu 


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