For most of last year, the general concern was about the ability of the Supreme Court to cope with the volume of cases it was being inundated with.
The concern was informed by two main factors – the significant depletion of its bench and the fact that it was post-election litigation season.
However, while the election disputation period is now over, and 11 Justices cleared for the apex court’s bench, the concern has now shifted to when the judicial officers will assume office.
Before now
The Chief Justice of Nigeria (CJN), Olukayode Ariwoola, drew attention to the depletion of the Supreme Court bench when, on September 15, 2022, he painted a distressing picture of the state of affairs.
Then, in an acting capacity, the CJN spoke at a valedictory session for ex-Justice Abdul Aboki.
Justice Ariwoola said: “His lordship’s (Aboki’s) exit from our fold has drastically depleted our ranks and opened a yawning gap that will hardly be filled.”
He recalled that their number dropped from 17 at the dawn of the year to 13 with Justice Aboki’s exit.
The CJN noted that “a single drop in the number of justices here brings about a sudden increase in our workload.”
He restated this concern when the number dropped to 10 in October last year with the retirement of Justice Musa Dattijo Muhammad.
Justice Ariwoola said: “With Justices Musa Dattijo leaving us today after the retirement of Hon. Justice Adamu Amina Augie a few weeks ago, we are now left with just 10 Justices on the Supreme Court Bench; being the lowest we have ever had in contemporary history of the court.”
House of Reps’ intervention
The concern also drew the attention of the House of Representatives, whose members called for urgent action.
At a session on October 19, 2023, the lower legislative chamber noted that the deficit should be urgently addressed for effective and efficient justice delivery.
The House passed a resolution to that effect after the adoption of a motion of urgent public importance sponsored by Patrick Umoh, a lawmaker representing Ikot Ekpene/Obot Akara/Essien Udim federal constituency in Akwa Ibom.
Leading the debate on the motion, Umoh observed that the few number of judicial officers on the apex court’s bench were under “immense mental and physical pressure” due to the deficit.
“This is the post-election season where the court has to hear and determine electoral matters from different parts of the country within a short period as mandated by the constitution.
“The Supreme Court’s docket is full for the year 2023 as parties cannot have hearing dates for matters filed within the year, except in election petitions, owing to a considerable volume of matters pending before the court.”
Deputy Speaker, Benjamin Kalu, who presided over the plenary, said the Supreme Court requires “more hands to get the job done.”
NBA’s intervention
The Nigerian Bar Association (NBA) also lent its voice to the call for the fortification of the apex court with the appointment of more hands.
National Publicity Secretary, Akorede Habeeb, said: “The NBA President noted that it has become imperative that the Nigerian Constitution be amended to increase the threshold for the number of Justices to be appointed to the Supreme Court and to reduce the number of matters that get to the Supreme Court by limiting the jurisdiction of the Supreme Court to certain constitutional matters.”
Justice Muhammad blames CJN
In a rather unusual intervention, Justice Muhammad laid the blame for the sorry state of affairs at the doorstep of the CJN.
He blamed the CJN for not being proactive, claiming that the head of the court tarried when he ought to have acted.
Justice Muhammad said: “The conversation about the diminishing number of justices at the Supreme Court has become a refrain.
“As I bow out, the number is further reduced to 10 against the Constitutional requirement of 21 justices.
“That this avoidable depletion has affected and will further affect the court and litigants is stating the obvious.
“We are in an election season where the tribunals and appellate courts are inundated with all manner of petitions and appeals.
“The Supreme Court is the final court in the presidential and governorship election appeals. Yet, there are only 10 justices left to determine these matters.
“Constitutionally, each of these appeals requires a panel of seven justices to sit on them.
“When a panel of seven justices is constituted to sit on a particular appeal, only three justices are left out.
“Even when regular appeals are being heard in the Supreme Court, a panel of five justices is required to sit.
“We must not forget that the court, being the highest in the land, receives all manner of appeals from the court below.
“Presently, there is neither limit nor distinction to the manner of appeals that come to the apex court.
“Again, besides seasonal election matters, the Supreme Court’s docket is overflowing with civil and criminal appeals, some of which took many years to arrive.
“Most of these (cases) are still pending. Several have not even been assigned hearing dates.
“As the justices who hear these matters are grossly overstretched, unable to meet the demands of their onerous assignment, the litigants who approach the court seeking justice are left in limbo; waiting endlessly for justice to be served.”
The ex-justice also faulted the non-representation of all the zones on the Bench.
Justice Muhammad continued: “These, as I have said before, are avoidable. When I exit today, the Northcentral zone that I represent ceases to have any representation until such a time new appointments are made.
“My lord Hon. Justice Ejembi Eko JSC, who also represented the zone retired on the 23” of May, 2022. It has been a year and five months now. There has not been any replacement.
“With the passing of my lord, Hon. Justice Chima Centus Nweze JSC on 29th July 2023, the Southeast no longer has any presence at the Supreme Court.
“My lord, Hon, Justice Sylvester Nwali Ngwuta JSC died on 7th March 2021. There has not been any appointment in his stead for the Southeast.
“Although it can be posited that no one expected the sudden passing of Hon. Justice Nweze JSC, yet, it has been two years and seven months since the previous Justice from the Southeast died and no appointment was made.
“Ditto for the replacement of Justice Eko JSC of North Central, who exited two years ago. Hon Justice Sidi Bage JSC, now His Royal Highness, the Emir of Lafia, from the Northcentral, had earlier voluntarily retired. He equally is yet to be replaced.
“Also, it was clear ab initio that I would be leaving the court this day on attaining the statutory age of 70. It is then not in doubt that there has been sufficient time for suitable replacements to have been appointed. This is yet to occur.
“As it stands, only four geo-political regions – the South-west, Southsouth, Northwest and Northeast – are represented in the Supreme Court.
“While the Southsouth and Northeast have two serving justices, the Northwest and Southwest are fully represented with three each.
“Appropriate steps could have been taken since to fill outstanding vacancies in the apex court. Why have these steps not been timeously taken?
“It is evident that the decision not to fill the vacancies in the court is deliberate.
“It is all about the absolute powers vested in the office of the Chief Justice of Nigeria and the responsible exercise of same.”
CJN’s reassurance
In an encouraging move, Justice Ariwoola, shortly before the end of last year, assured that the shortage would soon be a thing of the past.
He promised to leave a legacy of ensuring the court attains its full complement of 21 Justices for the first time in the history of the Supreme Court.
The CJN spoke at a court session to mark the commencement of the Supreme Court’s 2023/202 legal year.
He said: “Efforts were made by my predecessor to increase the number but that was unsuccessful before he left office.
“However, the cheering news is that as soon as I assumed office on the 27th day of June 2022, I immediately got down to work on this urgent and immediate need in particular.
“Though we have not gotten them on board yet, I can convincingly assure the litigant public that within a very short while, the Supreme Court of Nigeria will, for the very first time in its history, get the Constitutionally-prescribed full complement of 21 Justices.
“That is one of the legacies I have been working assiduously to leave behind as it now seems that the court has been somewhat ‘jinxed’ from meeting its constitutional requirement since that piece of legislation was enacted several years ago.”
As things stand
True to the CJN’s words, before the end of last November, the Federal Judicial Service Commission (FJSC) submitted a list of 22 Justices of the Court of Appeal to the National Judicial Council (NJC).
On December 6 last year, the NJC after its 104th meeting, announced the recommendation of 11 of the 22 to the President for appointment.
President Bola Tinubu wasted no time in sending the names to the Senate for confirmation, as required.
Without delay, the Senate announced their confirmation on December 11, thereby paving the way for their appointment.
The 11 Justices are Haruna Tsammani (Northeast), who chaired the Presidential Election Petition Court (PEPC); Moore Adumein (Southsouth), Jummai Sankey (Northcentral), Chidiebere Uwa (Southeast) and Chioma Nwosu-Iheme (Southeast).
Others are Justices Obande Ogbuinya (Southeast), Stephen Adah (Northcentral), Habeeb Abiru (Southwest), Jamilu Tukur (Northwest), Abubakar Umar (Northwest) and Mohammed Idris (Northcentral).
With the speed at which their appointment was processed, many had anticipated their prompt assumption of office.
However, the 11 Justices are still expected to assume office, thereby igniting another wave of concern and queries about the cause of the delay.
Amidst the uncertainty, the news hit the streets that the new Justices would be inaugurated on January 16.
But, in a statement on January 11, the NJC, via a statement from its Director, Information, Soji Oye denied the rumoured inauguration date.
The NJC spokesman was however silent on the true state of affairs, leaving many in the dark.
Oye said: “The attention of the NJC has been drawn to a trending story purportedly informing the public that the newly appointed 11 Supreme Court Justices would be sworn in on Monday 16 January 2023.
“The council, by this medium, expressly denies the news as it did not emanate from the council or the office of the CJN and Chairman of the NJC, Justice Ariwoola.
“The date for the swearing-in of the Justices will be made public at the appropriate time. Members of the public should please disregard the trending news.”
Possible causes of delay
As of last Friday, there was no formal position on the issue by the NJC and the authorities at the Supreme Court on when the inauguration will happen.
On inquiry, it was learnt that the delay was intended to allow the apex court to conclude all pending post-election appeals which emanated from the decisions of the newly appointed Justices while they were at the Court of Appeal.
“We know that everybody wants them to resume promptly in view of the depletion on the Supreme Court bench.
“I think those in charge want to prevent a situation where they would be made to sit on the cases they had handled while at the lower court.
“That, among other reasons, including logistics may account for why the inauguration appears to be delayed,” a senior official of the court said.
AGF: no time to waste
The Attorney General of the Federation (AGF) and Minister of Justice, Lateef Fagbemi (SAN), has told the authorities apex court that there was no time to waste in addressing the deficit on the court’s bench.
He suggested that the process of getting new hands on the apex court’s bench should be promptly handled.
The AGF said: “I am aware that the process of filling the vacancies for the Justices of the Supreme Court has begun.
“I would however like to use this opportunity to urge the leadership of the NJC to fast-track the process of achieving a full complement of the Supreme Court and to also concurrently put in place the process of filling the consequential vacancies that will be occasioned at the Court of Appeal to avoid undue delay and minimize disruptions at that level.”
Lawyers: more hands needed
Senior lawyers, including Chief Mike Ozekhome (SAN), Prof. Yemi Akinseye-George (SAN), Dr. Daniel Makolo and Otunba Tunde Falola were of the view that the earlier more Justices mount the bench of the apex court, the better.
Ozekhome said there was no doubt that more hands were urgently required at the Supreme Court, noting the current deficit “hinders the apex court Justices from attending to other genuine cases, particularly cases that concern business and investors’ funds.”
He warned that “any country that cannot quickly decide cases concerning investors will encounter disinvestment.”
Ozekhome noted that even if the new Justices assume office, the maximum 21 Justices allowed for the court by the Constitution “are not sufficient for a country of about 217.6 million.”
He suggested an amendment to the Constitution to raise the number of Justices of the court to, at least, 30 and to increase the retirement age from 70 to 80 years, with a proviso that whoever wants to disengage after 70 years can do so voluntarily.
Akinseye-George said much as it is desired that Justices assume the Supreme Court bench, efforts should also be directed at promptly addressing the logistics needed to make them settle in.
He added it should not just be about appointing new Justices, arrangements for their accommodation, vehicles and offices should be settled alongside their appointment.
Makolo and Falola who hailed the speed with which the President and the Senate handled their parts in the appointment process, said the litigating public cannot wait to have the new Justices on board.
“The delay could be in the area of logistics. And, as speculated, the court may want to do away with the election cases that passed through their courts.
“It is only the management of the court and those involved that can say exactly what is responsible for the delay.
“I don’t think it is anything unusual that people should be concerned about,” Makolo said.
