Breaking with tradition, the Chief Justice of Nigeria (CJN), Ibrahim Muhammad, last month threw open Supreme Court Justice job to lawyers, against the status quo whereby only justices of the Appeal Court are considered for elevation to the apex court bench. Lawyers believe the CJN’s move is a much-needed justice sector reform to bring Nigeria in line with global best practices, writes ADEBISI ONANUGA.
On January 19, 2022, the Chief Justice of Nigeria (CJN) Justice Ibrahim Tanko Muhammad included lawyers among those to be considered in the next round of appointments as Justices of the Supreme Court.
Justice Muhammad, who doubles as Chairman, Federal Judicial Service Commission, announced this offer in a January 19, 2022 letter to the Nigerian Bar Association (NBA).
The CJN is seeking to appoint six suitably qualified lawyers only from a pool of applicants from five of the country’s six geo-political zones. They will fill six present or future vacancies on the apex court bench.
There are currently 16 justices on the Supreme Court bench as against 21 recommended in the constitution, with some of them expected to retire soon.
Apart from the Southeast that will get two slots, and the Northeast which is excluded, the other zones will get one slot each.
The contents of the CJN’s letter were stated in a February 7, 2022 statement to lawyers signed by the Chairman, NBA Judiciary Committee, Dr. Babatunde Ajibade, SAN.
In the NBA’s statement issued by its Publicity Secretary Dr. Rapulu Nduka, the CJN called for the nomination of suitably qualified persons for appointment to the Supreme Court of Nigeria to fill the “present or imminent vacancies.”
The NBA statement reads: “ Dear colleagues, Re: Appointment of Six (6) Justices For The Supreme Court Bench: Call For Expression of Interest.
“The Chief Justice of Nigeria and Chairman, Federal Judicial Service Commission has
by a letter dated 19th January 2022 called for the nomination of suitably qualified persons for appointment to the Supreme Court of Nigeria to fill six present or imminent vacancies.
“The slots available for nomination are:
(a) Two slots for the Southeast geo-political zone.; (b) One slot for the Southsouth geo-political zone.; (c) One slot for the Southwest geo-political zone; (d) One slot for the Northcentral geo-political zone.; (e) One slot for the Northwest geo-political zone.
“Members of the Nigerian Bar Association (NBA) from the geo-political zones listed
above who are suitably qualified and are interested in applying for an appointment to
the Supreme Court Bench are enjoined to submit an expression of interest to the
National Secretariat of the NBA on or before 21st February 2022″.
The statement directed lawyers to address their interest letter to the NBA President and that it should include the following:
“A copy of the applicant’s Curriculum Vitae; A copy of the applicant’s Call to Bar Certificate; Evidence of payment of Bar Practising Fees (BPF) for the past 10 years; Evidence of payment of NBA Branch Dues for the past 10 years; Evidence of attendance at conferences of the NBA; Evidence of membership of Sections or Fora of the NBA; Judgments delivered in contested cases the applicant conducted in the five years preceding 2022 certified by competent authorities for Legal Practitioners in Private Practice.”
It should also include a letter of good standing from the Chairman of the applicant’s Branch confirming that he or she possesses the qualities set out in Rule 4(4)(1)(a), (b) and (d) of the NJC’s Guidelines for the Appointment of Judicial Officers for Superior Courts of Record.
According to the guidelines, the qualities are “a) Good character and reputation, diligence and hard work, honesty, integrity and sound knowledge of the law and consistent adherence to professional ethics; as may be applicable:
“b) Active successful practice at the Bar, including satisfactory presentation of cases
in court as a legal practitioner either in private practice or as a legal officer in any public service;
“d) Credible record of teaching law, legal research in a reputable university and publication of legal works …”
The statement added that upon receipt of the expressions of interest, the National Secretariat shall publish the names of the interested candidates and request comments thereon from members.
Past attempts at appointing lawyers to apex bench
The CJN’s proposal responds to years of pressure by stakeholders, particularly the Body of Senior Advocates of Nigeria (BOSAN), for its members and distinguished academics to be appointed to the topmost echelon of the nation’s judiciary.
The proposal was not implemented by successive CJNs since the tenure of Justice Mohammadu Uwais who served between 1995 and 2006.
As part of proposed reforms in the administration of the justice system, the NBA, in 2017, forwarded the names of six Senior Advocates of Nigeria (SANs) and three other lawyers to then-Acting CJN Justice Walter Onnoghen for consideration for appointment as Supreme Court Justices.
Then NBA President A.B. Mahmoud, had in a letter sent to the e-mails of all registered lawyers invited applications from suitably qualified legal practitioners to be appointed to the Supreme Court as provided in Section 231(3) of the Constitution of Federal Republic of Nigeria (as amended).
The section provides that: “A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period not less than 15 years.”
Consequently, nine silks were shortlisted by the umbrella body of lawyers from 89 expressions of interest that were received.
The nominees were – Olisa Agbakoba (SAN), Anthony Idigbe (SAN), Yunus Usman (SAN), Babatunde Fagbohunlu SAN, Miannayaaja Essien (SAN), Prof. Awa Kalu (SAN), Prof Awalu Yadudu SAN, Tajudeen Oladoja, SAN and Ayuba Giwa, SAN.
Why previous attempt failed
But the proposal did not sail through before Justice Onnoghen’s exit.
The nominees never got to the Supreme Court and Agbakoba raised the issue at a recent Justice Summit of the NBA in Abuja.
Agbakoba told the CJN’s representative at the event, Justice John Okoro of the Supreme Court, that the exercise was truncated.
“My Lord, you know that I was one of the lawyers who were nominated for appointment to the Supreme Court,” Agbakoba said.
“But that exercise never sailed through,” the former NBA President noted while making his remarks at the technical session of the justice summit in January in Abuja.
In his response, Mr Okoro said the appointment of judicial officers used to be a “secretive” exercise owing to the judiciary’s conservative nature.
“Outstanding lawyers used to be approached by judges for appointment to the bench, with most of them turning down such offers,” Mr Okoro explained.
“However, these days, the process of appointment of judges has become so competitive. If there are vacancies for appointment on the bench, there are judges who are already in the system. So, how do you go outside fishing for people (lawyers) to come in?,” Mr Okoro wondered while responding to Mr Agbakoba.
Past appointment from the bar to Supreme Court bench
The country has had some lawyers appointed to the apex bench from the bar since independence. Former head of State, General Yakubu Gowon appointed Justice Teslim Elias the CJN in 1972 and he was in office till 1975. Prior to that, he was Federal Commissioner for Justice. Augustine Nnamani SAN was also a practising lawyer before he was appointed a justice of the apexcourt.
Qualification for appointment to Supreme Court
To qualify for appointment to the bench of the Supreme Court , the fellow must be a legal practitioner of not less than 15 years. The same applies to whoever is to be appointed as the CJN.
Section 231 subsection (3) of the 1999 Constitution as amended states: “A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”
There have been exceptions under the military rule when lawyers were appointed to the apex court but observers argue that to turn such exceptions to a rule might be dangerous to the legal profession and the judiciary.
Pros, cons of bar to apex bench appointment
Some observers believe the planned appointment raises fundamental issues on the profession and the judiciary. They wonder if such action is not an indirect declaration that justices of the Appeal Court are unfit or unknowledgeable enough to be elevated to the apex court, some of whom have spent decades in the judiciary, rising from the high court.
Some said the decision might impact negatively on justices dedication, morale and commitment once it becomes a practice that lawyers can be appointed from the Bar to fill vacancies on the apex bench.
On the flip side, there are those who argue that the judiciary has become lame like a duck and has lost its valour amid controversial judgments, forum-shopping and that there is a need to inject new blood into it to change the status quo. Observers in this category point to the days of Justices Kayode Eso and Chukwudifu Oputa when the judiciary was vibrant and hold its own.
Former CJN, Justice Uwais explained his reservations about allowing lawyers to move straight to the apex bench in a 2016 interview with . He raised a key issue: integrity.
Uwais said: “Part of the problem is not just the ability of the judge you want. There is the issue of integrity. If you have been a judge at the High Court or Court of Appeal before coming to the Supreme Court, you would have done cases where whether you are a corrupt person would have been discovered. From your judgments also, the Court of Appeal would have known how good you are if you are at the High Court. But if you are a legal practitioner, you haven’t written any judgment. So, there is no way you can be assessed in that respect.
Again, you are not under supervision of anybody when it comes to integrity and those are the two points why we felt, anybody who is at the Bar who wants to go to the Supreme Court bench should start from the lower Bench.”
He emphasised the importance of monitoring a lawyer at close quarters.
“A lawyer is at large. He has his clients and he works for them. But if he is a judge, he is within the system. There are ways and means of knowing how he is getting on. That is the difference,” Justice Uwais added.
The late Chief Tunji Gomez was also vocal in his opposition to the idea when it was proposed by Justice Onnoghen.
Gomez, who was one of Nigeria’s oldest practising lawyers before his death in 2018 at 90, reasoned in 2017 that such appointment could mark entrance of political judges into the apex bench and erode judicial independence.
Gomez condemned the move as one aimed at killing the morale of the Justices of the Court of Appeal, who, according to him, had paid their dues over the years and were awaiting their turn to be elevated to the apex court.
“It is inimical to the judiciary; it is inimical to the profession. Besides, it creates an unfair trading….It is demeaning; it is a sign of condemnation to the Court of Appeal justices that they are not fit. And that is very bad. It is bad because people won’t respect them anymore.
He added, “If you are in the position, you rose from the high court to the Court of Appeal, now you are a senior judge of the Court of Appeal, then instead of elevating you to the Supreme Court, they went to pick a practising lawyer, how would you feel?
United Kingdom experience
The United Kingdom system permits lawyers to go straight to the country’s apex court bench.
The procedure for appointing a Justice of the Supreme Court of the UK is governed by Sections 25 to 31 and Schedule 8, of the Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013. This note sets out a brief resume of the process.
Section 25 of the 2005 Act sets out the statutory qualifications for appointment. Section 25 was amended by Sections 50-52 of the Tribunals and Enforcement Act 2007 so that the qualifications are:
“Applicants must have held high judicial office for at least two years. (‘High judicial office’ is defined to include High Court Judges of England and Wales, and of Northern Ireland; Court of Appeal Judges of England and Wales, and of Northern Ireland; and Judges of the Court of Session).
Alternatively, applicants must satisfy the judicial-appointment eligibility condition on a 15-year basis, or have been a qualifying practitioner for at least 15 years.
A person satisfies the judicial-appointment eligibility condition on a 15-year basis if he has been a solicitor of the senior courts of England and Wales, or barrister in England and Wales, for at least 15 years; and has been gaining experience in law during the post-qualification period.
A person is a qualifying practitioner if he is an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary; or he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.
A great move, say lawyers
Lawyers agreed with the CJN’s decision. They include the Vice Chancellor, Afe Babalola University, Ado Ekiti (ABUAD) Prof Damilola Olawuyi and Olukayode Enitan (SAN).
Prof Olawuyi said the 1999 Constitution, which is the supreme law of the land provides support for the direct appointment of senior lawyers to the Supreme Court.
He noted that this is in line with practice in other common law jurisdictions with similar legal cultures as Nigeria, including the United Kingdom, United States of America, Australia, Ireland amongst others.
He said: “For example, just about a year ago, Professor Andrew Burrows, QC was appointed directly from Oxford University to the UK Supreme Court without any previous experience on the Bench, and we have had several other similar appointments in Australia.”
The don noted further that the society is evolving, so our judicial appointments should reflect this contemporary reality and not remain static.
Olawuyi who is also the Global Vice Chair, International Law Association, explained that there are three key reasons why comparative global jurisdictions are appointing directly from the bar and legal academia.
“First is to promote institutional diversity in decisions. Multi-judge courts of appellate jurisdiction, such as the Supreme Court, should reflect a wider range of experience and deep expertise in niche and emerging fields of law.
“Secondly, lawyers and legal academics will bring theoretical and analytical soundness that will be a natural fit for the types of cases that arise in the Supreme Court.
“Third and most importantly, by widening the pool of eligibility, then we will never have to sacrifice merit for other irrelevant considerations.”
Olawuyi argued that like in other advanced societies, our topmost consideration should not be whether someone has been in the bench for decades, but on their intellectual capacity, personal qualities, ability to understand and deal fairly, contributions to legal jurisprudence, communication skills and technological efficiency.
For Enitan, there is no reason for disquiet as appointment to the Supreme Court Bench is guided by the provisions of Section 231(3) of the 1999 Constitution as follows: “A person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”
He argued that from this provision it is “crystal clear” that to be the CJN or a Justice of the Supreme Court, an individual needs not have been a Judge of any court at all but must have been a legal practitioner for at least 15 years.
The Silk reasoned that the only time that it is necessary to have been a Justice of the Supreme Court is as provided under subsection (4) to fill a temporary vacancy in the office of CJN.
Enitan said: “I am of the humble opinion that there is no problem with appointment of senior lawyers to the Supreme Court Bench and this will not be the first time it is happening;
“Justice Teslim Elias was AGF and later CJN and President of the International Court of Justice. Also Augustine Nnamani SAN JSC who moved from Federal AG to Supreme Court on mind.
“Furthermore, Judge Bola Ajibola of the International Court of Justice was also never a Judge in Nigeria, before getting that appointment; he was a Senior Advocate of Nigeria and Attorney-General of the Federation.
“There are many ‘young’, age wise, senior counsel that will benefit the Supreme Court Bench by appointment thereto as they will bring unto the Supreme Court Bench a new way of thinking more in tune with the modern world of commerce.”
Enitan said a Justice of the supreme or any other court “is to be classified as good or bad on the basis of decisions made on specific cases brought before him or her for adjudication, so it is non sequitur to say any one person is likely to be a better judge than another without them having been presented with cases to decide.
“As a matter of fact, most of those who are likely to apply for the appointment are those who have practised extensively as arbitrators in several International and local arbitrations rendering serious awards.
“I think its time we do away wholly with the notion that unless a Judge has gone through the three tiers of the judicial ladder he hasn’t been a success as a Judge when in fact the work of judging is the same at every level of the superior court bench to the extent that it is basically a review of evidence led in the matter.”
Nevertheless, he advised that the perks at the different levels should therefore be made even such that no one is seen as having been blindsided or neglected because he or she remained a High or Appeal Court Judge throughout the career as a Judge
