After Justice Amina Augie called for a reduction in the number of cases that are decided by the Supreme Court in her valedictory speech, Chief Justice of Nigeria (CJN) Olukayode Ariwoola and the Attorney-General of the Federation (AGF) Lateef Fagbemi (SAN) restated the demand at the special court session to mark the 2023/2024 legal year. How exactly will that be achieved? What must give way? ADEBISI ONANUGA sought the views of legal experts.
A man was arrested for setting his neighbour’s goats ablaze.
The man was arrested and charged. Somehow, the case got to the Supreme Court.
It was an example of a case that perhaps should not even have ended up in court, let alone getting to the Supreme Court.
Retired Justice Amina Augie was one of those asked to decide the case.
Speaking during her valedictory court session, she said: “Allow me to share a perplexing example.
“One remarkable day, we found ourselves entertaining an appeal in an unusual criminal case.
“Surprisingly, it was not the accused or convict who had filed the appeal; it was the state.
“The case involved an incident of arson where 12 goats were set ablaze.
“As we grappled with the load of pending judgments and the stack of files awaiting review for our upcoming conference – a sacred ritual in this court – I could not help but voice my astonishment.
“I leaned over to my brother Justice, and whispered: ‘With all that is on our plate, why would such a case come before us? Our primary role here is to be a policy-making court.’”
She urged the National Assembly to review the Constitution to limit the number and type of appeals that get to the Supreme Court.
Justice Augie said: “I wish to use this opportunity to directly address the 10th National Assembly, through the Distinguished Senate President, Godswill Akpabio, who was once my student at the Law School.
“I had the privilege of teaching him Evidence, and I trust that he learned it well.
“Hence, it should be evident to him that swift action is needed from the 10th National Assembly to accomplish what others could not – amending the Constitution to enhance the functioning of our courts in Nigeria…
“I implore the National Assembly to undertake the necessary constitutional amendments.
“By doing so, this court and its Justices can be freed from the constraints that impede their ability to fulfil their mandate of upholding the rule of law, justice, and democracy.”
The call to limit what gets to the Supreme Court came up again during the special session to mark the 2023/2024 legal year and the swearing-in of 58 new Senior Advocates of Nigeria (SANs).
Chief Justice of Nigeria (CJN) Olukayode Ariwoola, said: “I have made it clear on different occasions that it is not every dispute that must find its way to the court; it is not every matter that must come up to the Supreme Court on appeal.
“Our laws have to be amended to make most appeals end at the Court of Appeal, which is competent, dexterous and well-equipped with the right materials and manpower to adjudicate effectively and resourcefully.”
Attorney-General of the Federation, Prince Lateef Fagbemi (SAN), also stressed the need to reduce what the Supreme Court decides.
He said: “We must begin to develop innovative solutions towards enhancing the working capacity of the Supreme Court, cutting down on the number of appeals that get to this honourable court, implementing critical judicial reforms, as well as adopting alternative dispute resolution mechanisms.”
Exactly 1,271 cases, including motions and appeals, were filed at the Supreme Court between September 12, 2022 and July 11.
Of the number, 388 were political, 215 were criminal and 464 were civil appeals.
The court considered 49 criminal, 153 civil and two political motions and delivered 251 judgments, among them 125 political, 81 civil and 45 criminal appeals.
The United States example
In the United States, the Supreme Court agrees to hear about 100-150 of the more than 7,000 cases that it is asked to review each year.
According to the Department of Justice, the Supreme Court has what is called “original jurisdiction” over appeals of cases and controversies that arise under the U.S. Constitution, laws enacted by Congress, cases related to federal admiralty law, cases involving treaties, and cases where the United States itself is a named party.
Most of the cases the Supreme Court hears are appeals from lower courts.
Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case.
The primary means to petition the court for review is to ask it to grant a writ of certiorari.
This is a request that the Supreme Court order a lower court to send up the record of the case for review.
The court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonise conflicting decisions in the federal circuit courts, and/or could have precedential value.
Typically, the court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue).
In 2022, the United States Supreme Court decided 47 cases.
What can be done, by lawyers
Senior lawyers agree that the number of cases that get to the Supreme Court must be cut.
Those who spoke with The Nation Law are Chief Wale Taiwo (SAN); Deputy Vice Chancellor, Afe Babalola University, Ado Ekiti (ABUAD), Prof. Damilola Olawuyi (SAN); law teacher and prosecutor Wahab Shittu (SAN), Dr Fassy Yusuf and Abayomi Omoyinmi.
Chief Taiwo said the appellate system is intended to provide a safeguard and ensure the integrity of the judicial system so that litigants are satisfied that their grievances have been adequately examined and that they have received justice.
If a party feels unsatisfied after the Court of Appeal has decided it, the apex court of five or sometimes seven justices would review the matter.
He noted, however, that the problem is the abuse to which the appellate system, especially at the Supreme Court, has been subjected.
The SAN regretted that the vast majority of the cases are filed to buy time or frustrate the party who has been right all along but the party in the wrong, knowing the snail speed of the system, rather ties the hands of the successful party under the guise of pursuing appeals.
He said this is where the calls for a reduction in the number or category of cases which reach the apex court become necessary.
Chief Taiwo said the Constitution has unwittingly created a loophole in the jurisdictional threshold of the Supreme Court, thus having all sorts of cases finding their way.
“Sadly, on virtually all issues of practice and procedure, the apex court has made sufficient pronouncements but we still have litigants piling up the court with appeals on those issues which have become settled.
“While we must understand the fact that no two cases are the same, they can only be impari materia and hence precedent can be established to decide cases when facts are similar in the future cases,” he said.
He, therefore, stressed the need for consistency in the pronouncements of the Supreme Court so that if the apex court has laid down the position on a matter, then the courts in the hierarchy can decide cases with similar facts on the threshold of the established principles of the law.
‘Allow only appeals on death penalty, life imprisonment’
The SAN suggested that for criminal cases, only those involving life imprisonment and the death penalty should get to the Supreme Court.
He noted that the Supreme Court (Original Jurisdiction) Act already stipulates some cases which the court can take as a matter of course in its original jurisdiction.
He also noted that the Constitution, in Section 233, specifies the appellate jurisdiction of the Supreme Court which is now prone to abuse, stressing that this needs to be addressed.
He advised that care must be taken to find a way to set limits so that only cases with issues of substance reach the apex court.
“Except for cases with the imposition of the death penalty or life imprisonment, no criminal appeal should reach the apex court.
“Even at that, it must be with the leave of the court by way of vetting or certification to ensure that the issue to be addressed dovetailed into the Constitution,” Chief Taiwo suggested.
‘Reject interlocutory appeal’
Chief Taiwo advised that no interlocutory appeal should reach the Supreme Court and if such an appeal is brought, it must be with the leave of the Court of Appeal and certified upon certain conditions.
He said fundamental rights cases may be entertained but care must be taken to ensure that constitutional interpretation or policy questions are in contention.
The SAN added: “More importantly, the intermediate appellate system should be revamped.
“We need to give each state of the Federation the powers to create their own Supreme Court so that issues which are purely within the remits of state law, after possibly going through the magistrate court then a high court, should end at the state Supreme Court.
“A system can also exist to grant permission for appeals to lie to the apex court upon certification that issues at stake have been recurrent in other states so that the apex court can lay down policy guidance.”
Restrict Supreme Court’s jurisdiction
Olawuyi said one way forward would be to limit the jurisdiction of the Supreme Court only to appellate cases that involve constitutional or federal law.
All appeals relating to private, non-federal and non-constitutional matters should terminate at the Court of Appeal, he suggested.
He said: “This is exactly the practice in true federal countries such as the United States of America. The U.S. Supreme Court only entertains cases that have federal or national significance.
“This includes cases that involve U.S. Constitutional or federal law; disputes between two or more states; or cases involving ambassadors and other federal ministers.
“This explains why the United States of America only has nine justices of the Supreme Court despite the huge size and population of the country, and does not perennially struggle with heavy workload and backlogs as much as our Supreme Court does.
“Calls to appoint many more Supreme Court Justices in Nigeria are, therefore, in my view treating the symptoms of a larger constitutional defect.
“It is simply impracticable for the highest court of the land to entertain all kinds of appeals, including matters of private transactions, such as land, contract, and family disputes, that have no federal or national significance.”
The professor of international law said the problem of backlog and institutional constraint facing the Supreme Court is therefore directly traceable to the lopsided 1999 Constitution and the form of federalism that it creates which fails to clearly and practically streamline the jurisdiction of the Supreme Court.
“What we urgently need is a true federal constitution that streamlines the jurisdiction of the Supreme Court.
“By so doing, not only will we reduce the traffic and backlog at the Supreme Court, but we will also be strengthening the Court of Appeal which has several divisions and is closer to the people in terms of logistics, location and reach,” Olawuyi said.
Shittu noted that the number of cases at the apex court is alarming compared to the number of justices available for adjudication.
“The other critical consideration is the need for practitioners to utilise their best practice to reduce the dockets of the Supreme Court by avoiding frivolous appeals,” he said.
According to Shittu, there is a need to look into the possibility of decentralising the operations of the Supreme Court by ensuring that divisional Supreme Courts are constituted in the six geo-political zones to adjudicate upon cases arising from the respective zones.
“Only constitutional matters should get to the Supreme Court,” he said.
Shittu said not all types of matters should terminate at the Supreme Court.
“Only matters of constitutional importance and other significant matters should be exposed to the apex court.
“The Supreme Court as a court of law, justice and a policy court ought to be strengthened in terms of capacity, funding and infrastructure to deliver on justice for the advantage of the citizenry,” he added.
Dr Yusuf said it was time to act.
“I think the action lies with the Supreme Court and the Federal Ministry of Justice on the one hand and the Federal legislature, the National Assembly.
“They should have met to discuss the Act establishing the Supreme Court and to decide the cases that should be brought to the apex court.
“In doing this, it is necessary for the judicial officers to weigh the various options available and to make appropriate recommendations or an Executive Bill.
“This further calls for the restructuring of the country because pre-1966, this was not the case.
“For example, there was the Western Region Supreme Court or Court of Appeal. Most of the regions had their own Court of Appeal and Supreme Court.
“But the unification decree of 1966 has brought us to where we are now. It is time to go back to the basics and to review the constitution in relation to the powers of the Supreme Court,” Yusuf said.
Omoyinmi also suggested that interlocutory appeals should terminate at the Court of Appeal.
Also to be restricted are substantive cases on which the Supreme Court has pronounced the principle of law.
“An example is cases involving state governments who are always in the habit of dissolving statutory boards and agencies that are operating under the constitution.
“The Supreme Court has pronounced on the illegality of such dissolution,” Omoyinmi said.
He said there was a need to review the appeals emanating from election petitions or pre-election disputes that get to the Supreme Court.
“The law should be amended to have the governorship petitions revert to terminate at the Court of Appeal.
“Chieftaincy matters should be made to finally terminate at the Court of Appeal.
“Once such cases are finally decided by the Court of Appeal, the Apex Court will be relieved of having to attend to all manner of cases that find their way there unnecessarily and which the court has pronounced on similar facts and legal principle on numerous occasions,” Omoyinmi added.
