The rapidly depleting number of justices and judges, following the Federal Government’s failure to fill Supreme Court and Court of Appeal vacancies or appoint the constitutionally required number of judicial officers, is giving stakeholders cause for concern, writes ADEBISI ONANUGA

 

On February 15, the Lagos Division of the Court of Appeal held a special valedictory session for the outgoing President of the Court of Appeal, Justice Zainab Bulkachuwa.

Bulkachuwa is due to retire on March 6, having strapped the saddle of the second highest court for six years. She was appointed as president of the court by President Goodluck Ebele Jonathan on April 17, 2014 and sworn in by the former Chief Justice of Nigeria and first woman Chief Justice of Nigeria, Justice Aloma Mariam Mukhtar. Justice Bulkachuwa is the first woman president of the Court of Appeal in the history of the appellate court.

At the event held at the Court of Appeal complex in Lagos were some Senior Advocates of Nigeria (SANs), including the Nigerian Bar Association (NBA) President, Paul Usoro (SAN); a former NBA President Wole Olanipekun (SAN); Attorney-General of Lagos State, Moyosore Onigbanjo (SAN) and first woman Attorney-General of Lagos State, Hairat Balogun (SAN).

The platform provided opportunities for them to rub minds on developments at the appellate court.

 

An over-burdened Court of Appeal

The SANs told the government that the Court of Appeal was severely overburdened with cases and that the development was forcing it to delay cases because of shortage of justices to hear them. They advised the government to appoint more justices, especially for the Lagos, Port Harcourt and Abuja divisions.

The lawyers spoke in Lagos at the special valedictory court session/reception in honour of the President of the Court of Appeal, Justice Zainab Bulkachuwa, who retires on March 6.

Usoro, who was represented by a former Attorney-General of Lagos State, Mr. Adeniji Kazeem (SAN), noted that inadequate number of appellate court panels was crippling justice delivery and affecting faith in the judiciary.

He canvassed the appointment of more justices. “Justices in Lagos are overworked. Lagos should have not less than three panels. The NBA calls for immediate appointment of more justices,” he said.

The NBA president urged the National Assembly to amend the Court of Appeal Act “so that no division should have less than six justices, while Lagos, Abuja and Port Harcourt should have not less than between 10 and 15 justices”.

He noted that some divisions of the court “have less than three justices,” adding that access to justice would be affected, if justices were unable to hear cases due to lack of quorum.

The position of the NBA president was echoed by the Attorney General of Lagos State, Moyosore Onigbanjo (SAN) who requested the retiring President of the Court of Appeal, Justice Zainab Bulkachuwa, to create more judicial divisions in Lagos State.

“On behalf of Lagos State, we recognise that Court of Appeal Lagos Division is over-burdened.

“Cases are already adjourned until 2021. We, therefore, urge my lord to create more panels (judges) for Lagos so that those who sit in Lagos will not be over-burdened. And to ensure that appeals are speedily determined.”

Onigbanjo said creation of additional panels would lessen the workload of justices who sit in Lagos courts.

He noted that having more justices would reduce frustrations experienced by both litigants and their counsel, especially when appeals were given long dates.

Mrs. Balogun urged the Lagos State government to donate land on the Lagos Mainland for the expansion of the appellate court.

Olanipekun, who spoke on behalf of the Body of Senior Advocates of Nigeria (BOSAN), backed the call for creation of more divisions of the appellate court.

He urged the executive arm of the government to provide adequate infrastructure for the courts to have an atmosphere that would be conducive for lawyers and litigants.

“I will align myself with the initial speaker that Lagos needs more justices, even the other divisions,” he said.

Olanipekun lamented that the Judiciary was being unfairly attacked by segments of society, warning that this was a dangerous trend. The judiciary is being accused and bruised in the media. We need to salvage it,” he said.

Olanipekun told Bulkachuwa: “As you are retiring, we should have known who you are handing over to. There cannot be a vacuum in the Judiciary. It leads to destabilising the judiciary.”

 

Constitutional court will reduce burden, says BOSAN

It was not the first time stakeholders would engage the government on the need for adequate personnel for the judiciary.

Last September 19, BOSAN called for the establishment of a constitutional court to determine election related cases.

The body argued that the move will help to decongest and reduce the workload of the regular courts which it said would focus on other civil and criminal matters.

It made the suggestion at a valedictory court session in Abuja in honour of the retired Chief Judge of the Federal High Court, Justice Abdul Abdu-Kafarati.

Speaking through Chief Adegboyega Awomolo SAN, BOSAN lamented that a similar proposal it made earlier was turned down “due to lack of foresight”.

It argued that establishment of constitutional courts should be revisited and reintegrated into the constitution in compliance with Section 250.

According to the body, all political matters, including pre and post-election issues and election petitions will be effectively handled by the court, while all appeals from the court will terminate at the Court of Appeal.

As laudable as the recommendation of BOSAN was, it would require appointment of more justices.

 

State of the Court of Appeal

There are currently 72  Nigerian courts of appeals across the six geopolitical zones of Nigeria. There are 12 North-Central, 10 in Northeast, 10 in Northwest, 10 in South-south, 9 in Southeast and 11 in Southwestern Nigeria. The headquarters of the Court of Appeal is located at Three Arms Zone, Abuja.

 

Dwindling number of Supreme Court Justices

Inadequate number of justices is also a concern at the Supreme Court.

Presently, there are only 16 Justices of the Supreme Court, including the Chief Justice of Nigeria.

Until the appointment of Justice Olukayode Ariwola and Mary Odili, there were 14 Justices of the Supreme Court, including the CJN.

But the Constitutional recommends that the Supreme Court should be composed of not more than 21 justices, appointed by the President on the recommendation of the National Judicial Council, (NJC) and subject to confirmation by the Senate.

The House of Representatives has spotted the problem.

Twelve days ago, it asked the Federal Government to immediately appoint more justices for the Supreme Court to expedite the dispensation of justice in the country.

A member of the House of Representatives, Onifiok Akpan Luk, adopting a motion of urgent public importance, said with the present composition of the Supreme Court, it was extremely impossible to constitute two panels to sit on appeal.

Luk said the Supreme Court of Nigeria has original and appellate jurisdiction to adjudicate on disputes and controversies arising from any subject matter.

He said as a result, the court is faced with the huge responsibility of handling a high volume of cases with minimal number of justices.

He noted that the number of justices of the Supreme Court had been reduced to 13 with the recent retirement of Hon. Justice Amiru Sanusi from the court, adding that the situation will become worse owing to the impending retirement of another justice of the court in few months.

He said further that Section 230(2)(b) of the 1999 Constitution prescribes the maximum number of the justices of the Supreme Court to be 21, stressing that the court in its history has never had a full complement of the prescribed 21 number of justices.

Luk said while not asking the government to make the justices 21, it was evident that “the reduction in the number of justices will slow down the dispensation of justice and affect the pace at which matters are meant to be determined, and will put the available number of justices of the court under immense pressure as there are many cases to be decided by the court.”

He stressed that some cases have been undecided at the Supreme Court for over 10 years as a result of the shortage of justices of the court, adding that the diary of the Supreme Court is full with no date for a new appeal until 2021.

He maintained that appointing new justices to the Supreme Court will accelerate justice dispensation, expand the course of justice and increase citizens’ access to justice.

 

How are Justices of Court of Appeal appointed?

Justices of the Court of Appeal are appointed by the President and must all be qualified legal practitioners who have been practising for at least 12 years.

The appointment is at the recommendation of the National Judicial Council (NJC). In some other cases, they are appointed from amongst judges of the High Courts to serve in line with constitutional provisions.

This is also subject to the recommendation of the NJC to the President.  However, the President, in the case of Justices of the Supreme Court, is expected to forward names of those so recommended for appointment, to the Senate for screening and confirmation.

 

Past failed attempts at appointing appellate court justices

While stakeholders are agreed on the need to fill vacant positions in the Appellate courts, there has been a lingering controversy over who is to be appointed justices of the two levels of the upper courts.

In 2017, former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen courted controversy when he requested recommendations from the bar.

The NBA took challenge and forwarded names of nine candidates to Onnoghen.

Following a rigorous screening process, a select committee chaired by the former president of the NBA, Abubakar Mahmoud, with eight other eminent lawyers as members, nominated nine eminent and respected members of the bar including a former President of the association, Chief (Dr) Olisa Agbakoba (SAN), Anthony Ikemefuna Idigbe (SAN), Yunus Ustas Usman (SAN), Babatunde Fagbohunlu (SAN), Miannayaaja Essien (SAN), Awa Uma Kalu (SAN), Professor Awalu Hamish Yadudu, Tajudeen Oladoja and Ayuba Giwa.

The nominees were shortlisted from a total of 89 expressions of interest that were scrutinized.

Expectedly, the experiment failed as it attracted criticisms from members of the public. Most of them were of the view that lawyers who were defending corrupt politicians in court should not be appointed to the apex court.

Although most of those recommended made efforts to clear themselves, they never got appointed as justices of the apex court,

In June 2019, President Muhammadu Buhari, through his spokesman, Garba Shehu, wrote Justice Ibrahim Tanko Muhammad,  then an acting CJN, on the need appoint five additional Justices at the Supreme Court pursuant to the provisions of Section 230(2) A&B of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

The request was made in line with the government’s agenda of repositioning the Judiciary in general and Supreme Court in particular for greater efficiency, with a view to reducing the backlogs of appeals pending at the Supreme Court

Eight months after the NJC sent a list of four Justices of the Court of Appeal to the President for elevation to the Supreme Court, President Buhari is yet to act on the recommendation in spite of the diminishing number of those retiring on the account of age.

With less than four days to the exit of the PCA, Justice Zainab Bulkachua, what are the options available to fill vacant positions in her court?

 

What the lawyers say

The CJN, Justice Mohammad, during a session of the court recently ruled out the suggestion that practicing lawyers be appointed Justices of the Court of Appeal and Supreme Court.

He said those campaigning for the appointment of judges to the Court of Appeal and Supreme Court from the Bar, were not considering the drawbacks inherent in such move.

While admitting pressure to make appointment from the bar, he insisted on retaining the old practice of making appointment from judges of the high courts.

He said it would amount to an act of injustice against career judges and Justices who have committed years to the Bench and have no other options, like practising lawyers have.

But there are those who disagreed with him on the matter. They include Chief Louis Alozie (SAN), Chief (Dr.) Fassy Yusuf and Executive Director, Crime Victims Foundation of Nigeria (CRIVIFON), Dr (Mrs) Gloria Egbuji.

Read Also: The courts are not to blame

 

‘Appoint younger Justices’

Alozie said the problem of depletion in the number of justices of the Court of Appeal, which also applies to the Supreme Court and other courts, stem from the manner of their appointments.

“Most of them appear to be age mates. They were appointed when they ought to be retiring if they were in civil service,” he said.

According to Alozie, “The solution lies in appointing young judges, not those already tired. The constitution stipulates the number of justices of the Court of Appeal at 49. That number is inadequate to deal with appeals from hundreds of High Courts, Customary Courts of Appeal and Sharia Courts of Appeal nationwide.

“More judges should be appointed, after constitutional amendments. Their lordships are overworked and overstressed most of the time thereby compromising their health. That ought not to be.

“We are happy more divisions of the Court of Appeal have been created by the outgoing President.  But a situation where some divisions have only three justices, being the constitutional quorum, does not help matters.

This is because anytime one of them is indisposed, there will be no court sitting. Our leaders should appreciate the place of the judiciary in a democracy and work towards strengthening that very important arm of government,” he stressed.

Yusuf said it is lamentable that the judiciary, indeed, the Supreme Court and the Court of Appeal were not proactive enough to ensure that the vacancies that existed were filled without any harm befalling the sacred institution.

He noted that presently, there are eight vacancies in the Supreme Court as the present number of justices is 13 as against the constitutional provision of 21.

“Also, there are many vacancies in the Court of Appeal, paradoxically while more divisions of the court are being established. The situation would be worse very soon when the Supreme Court is further depleted owing to retirements.

“Furthermore, when justices from the Court of Appeal are elevated to the Supreme Court (to fill the gaps or vacancies), as it is the convention in recent times, the former (Court of Appeal) would be the worse for it”, Yusuf said.

According to him, of the three branches of government – the Executive, the Legislature and the Judicature/Judiciary, the most starved of manpower and funds is the judiciary.

“This is unacceptable. The situation is contributing to the erosion of confidence and belief in justice administration or delivery in the country”, he stated.

He noted that unless you are handling a political case that is given accelerated hearing, any other case could spend up to four years at the Court of Appeal and six to 10 years at the Supreme Court!

To reverse this trend, he advised that the NJC and Council must think outside the box.

“Apart from the traditional route of appointments from the High Court to the Court of Appeal and then to the Supreme Court; senior lawyers in practice and academics should be motivated to come on board directly to the Court of Appeal and or to the Supreme Court.

“If this is not done as a matter of urgent national exigency, sooner than later, the judiciary would lose relevance and litigants may start resorting to self-help.

“And, to be able to attract competent, capable and incorruptible judges and senior lawyers into the Court of Appeal and the Supreme Court, the conditions of service of justices and judges, and the operating environment of the temple of justice must be quite clement”, he advised.

Yusuf further stated: “The judiciary generally, requires proper funding and adequate staffing. Technology in the judiciary must be given fillip. Research personnel must be available to justices along with other tools that would enhance productivity and performance. Further disobedience of court orders and the desecration of the judiciary must be permanently halted.

“Lastly, officers in the temple of justice must also assist the judiciary to flourish by being sincere to their conscience and the nation, and not engaging in frivolous litigations for pecuniary and or primordial interests.

“We are all critical stakeholders in the judiciary and our actions and inactions are bound to dictate its survival or destruction”, he said.

Egbuji regretted that the dwindling number of Justices of the Court of Appeal has made getting dates for trial stressful and that cases waiting to be given dates are numerous.

She noted that one golden reason for this has been due to the fact that interlocutory appeals are too numerous, adding that appeal that ought to be filed with the final judgment are filed because of the qualification to be a SAN which required that you show the cases that you have appeared in at the appellate court and not cases that you have won.

Egbuji said: “Even if you appoint judges beyond the number stipulated by law, the appellate court will still be bugged down with unnecessary appeals and the solution lies in abolishing interlocutory appeals’’.

She advised that an appearance in the appellate court should not be the requirement to be qualified to be a SAN but rather successful prosecution or defence of an appeal should be benchmark to be a SAN.