For years, the Supreme Court has not had its full complement of 21 justices. Besides, no member of the apex court Bench has been appointed straight from the Bar since 1979. But, by seeking to appoint 10 more justices to join the existing 13, Chief Justice of Nigeria (CJN) Olukayode Ariwoola has an opportunity to break with tradition, reports ERIC IKHILAE.
Chief Justice of Nigeria (CJN) Justice Olukayode Ariwoola recently issued a notice calling for the nomination of lawyers for appointment justices of the Supreme Court. There are currently 13 justices on the court’s Bench, nine short of the constitutional maximum of 21.
The notice, issued on June 19, replaced the one he issued on June 14, indicating eight openings at the apex court. It also ended a similar process initiated by Justice Ariwoola’s immediate predecessor Justice Ibrahim Muhammad, who could not carry it through before his hasty exit.
Several Justices of the Court of Appeal were nominated in the last appointment process initiated by Justice Muhammad, which saw the Federal Judicial Service Commission (FJSC) producing a list of nominees, but which project can now be safely termed abandoned.
By his latest notice, the CJN indicated the number of judicial officer(s) to which each geo-political zone is entitled – Southeast (two); Southsouth (one); Southwest (one); Northcentral (three); Northeast (one) and Northwest (two).
However, like previous exercises, the new appointment process has again thrown up two key issues which are attracting debates.
The first is whether, this time, the Supreme Court plans to go the whole hog of attaining its full complement by completing the 21 Justices provided for in the Constitution.
The second issue relates to whether the appointing powers at the apex court are willing to appoint judicial officers for the court straight from the Bar, rather than appointing them from the Bench, as has become the tradition.
Attaining Supreme Court’s full potential
Section 230 of the Constitution provides that the Supreme Court shall consist of the CJN and “such number of Justices of the Supreme Court, not exceeding 21, as may be prescribed by an act of the National Assembly.”
The closest the court got to having 21 Justices at a time was on November 6, 2020, when eight new judicial officers mounted the apex court’s Bench upon their elevation from the Court of Appeal.
They were Justices Lawal Garba (Northwest), Helen Ogunwumiju (Southwest), Abdu Aboki (Northwest), Ibrahim Saulawa (Northwest), Justice Adamu Jauro (Northeast), Samuel Oseji (Southsouth), Tijani Abubakar (Northeast) and Emmanuel Agim (Southsouth).
By their appointment, the number of apex court justices rose from 12 to 20. But as of today, due to retirement and death, the number has fallen to 13, with two planning to retire this year.
Those who are to exit later this year are Justice Amina Augie from Kebbi State (Northwest), who will retire on September 3, and Justice Musa Dattijo Muhammad from Niger State (Northcentral), who is expected to retire on October 27.
With their exit, the court will be left with 11 justices, which no doubt, informed Justice Ariwoola’s notice.
If this ongoing process succeeds, all the 21 seats on the court’s Bench will be fully occupied by October.
Appointing appellate court justices from the Bar?
The argument for and against the propriety of appointing judicial officers for the appellate courts from the Bar has been on for some time now. While those in favour of such a possibility have cited past cases in the country, among other reasons, those against have also held on tenaciously to their position, adducing reasons to that effect too.
Past cases
Two major instances where lawyers were appointed straight to the apex court were during the military era when the rule of law was often accorded scant regard.
The first known case was that of Justice Teslim Elias, an academic, who was appointed the CJN by the then military Head of State, General Yakubu Gowon in 1972, after he had served as the Attorney-General of the Federation and Minister of Justice at various times since 1960.
The second instance was the appointment of Justice Augustine Nnamani (SAN), who was nominated by the then Head of State, General Olusegun Obasanjo, to the Supreme Court in 1979 from his position as the Attorney-General of the Federation and Minister of Justice.
Justice Nnamani served at the Supreme Court for 11 years subsequently.
Arguments for appointment of lawyers
Proponents of the appointment of lawyers to the appellate courts’ benches have continued to argue that bringing in legal practitioners, who have excelled in practice and academics, has the capacity of improving the quality of the system, enhancing competition, inject new blood and curbing unethical conduct, among others.
They have also argued that the law, particularly the Constitution, in Section 231(3) on qualification, does not support the current tradition of appointment by elevation.
To them, the reluctance on the part of the appointing authorities to accept the appointment from the Bar remains unjustifiable, which accounted for why the immediate past President of the Nigerian Bar Association (NBA), Olumide Akpata, had to question the rationale behind the decision of Justice Muhammad to exclude lawyers from the recruitment process he initiated in 2022.
Justice Muhammad had on January 19, 2022, like the June 19 notice by Justice Ariwoola, written to the NBA to nominate suitable candidates for consideration for appointment to replace six justices of the Supreme Court who had died, retired, or were about to retire.
But, when the list of those shortlisted was released, the CJN failed to accommodate any of the lawyers whose names were forwarded by the NBA, a development that prompted Akpata to write a letter dated, June 23, 2022, to Justice Muhammad.
Akpata noted that the then CJN, in his January 19 letter, specified the requirements that the nominees must have, drawing a clear distinction between the requirements for serving judicial officers, and the requirements for legal practitioners in private practice.
He said: “Following that invitation, the NBA reached out to its members on 7th February 2022 requesting for submission of expressions of interest from eligible members for nomination to the Supreme Court of Nigeria (SCN) Bench.
“The list of interested candidates, who met the specified requirements, was sent to your Lordship within the specified timeframe.
“We had been optimistic that my Lord’s invitation was an indication that legal practitioners in private practice, who are eminently qualified, and who responded to the request for expressions of interest would be considered for appointment to the SCN.”
Akpata went on: “Indeed, this is the clear intendment of Rule 3(1)(b) and Rule (3)(6) of the National Judicial Council’s Guidelines for the Appointment of Judicial Officers (the Appointment Guidelines).
“My Lord would therefore understand our dismay when we noted from the contents of your Lordship’s letter dated 27th May, 2022, that all the shortlisted candidates were justices of the Court of Appeal and that none of the legal practitioners in private practice, who expressed interest and whose names and enviable credentials were sent to your Lordship for consideration, was included in the provisional shortlist of candidates for appointment to the SCN.”
The erstwhile Bar leader said if indeed there was no intention to consider legal practitioners in private practice for such appointment, “we query the need for the invitation to the NBA to nominate candidates, inclusive of legal practitioners in private practice.”
He added that “if, however, the candidates nominated were found unsuitable or wanting in any material particular, we would appreciate some indication as to the criteria applied as required by Rule 3(8) of the Appointment Guidelines so that we can ensure that more suitable are put forward by the NBA next time the appointments are to be made.
“We strongly urge your Lordship to reconsider the nomination process in light of these observations.”
The Body of Senior Advocates of Nigeria (BOSAN) has equally consistently faulted the current appointment process for judicial officers for the Court of Appeal and Supreme Court through elevation.
A leader of BOSAN, Onomigbo Okpoko (SAN), also asked the National Judicial Council (NJC) to consider appointing appellate justices directly from the Bar as it is done in other countries.
“BOSAN does not see any justifiable and arguable opposition against the direct appointment of this class of candidates available for appointment to the Supreme Court and the Court of Appeal.
“The lawyers in the academia and of the Bar read and write books and conduct research just as the judges do. The skill to read and write legal opinions on appellate matters is undeniable.
“The lawyers from the private Bar who practise law on a daily basis in all courts and lawyers from the ministries of Justice who conduct government cases have necessary skills that can greatly enhance the works of the appellate courts.
“Today, the NJC ignores these sources of recruitment and prefers to appoint candidates on the basis that they have served as magistrates and Sharia Court and Customary Court judges as a condition for appointment into the appellate courts,” Okpoko said.
Arguments against appointment of lawyers
Opponents of the campaign for the appointment of appellate courts’ justices jfrom the Bar are of the view that it has the risk of not only polluting the system but serving as a disincentive to those who have committed their lives to the Bench from the inception of their legal career.
“How do you appoint a lawyer, who has made fortunes representing various political and business interests onto the Bench at the appellate level at the detriment of those who have been in the system and started from either the High Court or the magistracy?
“It is like handing out the best of both worlds to this set of lawyers, who have had the best of life either as a practitioner or in academics, at the detriment of those who chose the path of the Bench and have remained committed to it.
“What about the challenge of experience? Will you begin to train him/her at that level on the practices of a jurist or what? Those cases being cited occurred under the military, where decisions are taken at the whims and caprices of one or few individuals, without respect to what the rules or laws say,” a retired jurist said.
Justice Muhammad stressed this point while speaking at a conference of judicial officers as the CJN. He foreclosed the possibility of appointing justices for the Supreme Court from among practising lawyers.
He said although there was pressure and calls for a review of the current appointment process that gives priority to career judges and justices, he was not ready to yield ground on the matter.
Justice Muhammad argued that 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 a proposal.
He added: “I wouldn’t want to say much on the process of selecting justices from the Court of Appeal to the Supreme Court. But one thing on which I am positively assuring you, although there is a lot of pressure, is that we will retain the old regime.
“Those of us, who passed through the Court of Appeal, spent a number of years in the Court of Appeal, and we had a lot of experience and created a lot of relationships in the Court of Appeal. We will feel slighted if we are made to take anybody straight from outside.
“I don’t know. There are a lot of calls, a lot of insistence that we should take a look at the process we currently use in appointment to the Supreme Court and that we should not concentrate on the Court of Appeal alone. I say no.
“But, maybe it is because I am biased; because I am a son of the Court of Appeal, and I know the number of years that I spent in the Court of Appeal. And I know the experiences I gathered in the Court of Appeal. I know the number of Justices that I met and made friends within the Court of Appeal, and we still telephone each other till today.” Justice Muhammad said.
He noted that it would be an act of injustice against career judges and justices who have committed years to the Bench and have no other options, as practising lawyers have.
“This is somebody who has followed through the line. For example, myself. I started as a Magistrate Grade II. Going down the ladder, I wouldn’t want the authority to forget those of us who have been around.
“You grew up from the magistracy, rising through the ranks, and then they say we are not taking candidates for the Supreme Court from the Court of Appeal; we are taking from among the practising lawyer.
“We are not denigrating the practising lawyers. That is why I said let’s call a spade a spade. A practising lawyer may have a lot of openings. Tell me: what are your openings? What is the way forward for you? Please, let’s put our heads together. Don’t entertain that kind of thing.
“As far as I am concerned, the Supreme Court is the last stage. Anyone of us, who grew up with the system and has continued to grow, why stagnate him? We know that it is not every one of us that will get to the Supreme Court. That is destiny.
“If somebody is brought from outside, it will take time to train such a person to fit in. I am with the old regime that we should train those who are already on the line.
“If you want to be a judge, you should join at the High Court. But, most of them do not want to join at the High Court. That is the best place for you to start.
“I don’t think it will be the right thing to appoint somebody straight to the Court of Appeal, because you have to train and teach him/her.
“Let me pose this question: supposing you retire now; or, God forbid, something happens and they retire you compulsorily, or you are even dismissed. Nobody is praying for that. But, assuming any of these happens, can you go into practice?”
The gathering answered: No!
Why it may be possible for now
Although the Constitution does not discriminate against practising lawyers in its provision on qualification, the current appointment procedure exists to the detriment of those at the Bar.
Under the existing Revised National Judicial Council Guidelines for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria, which became effective on November 3, 2014, Justices of the Supreme Court and the Court of Appeal are required to write an assessment letter/note for wants appointment into the higher courts.
Since those who are against the alteration of the current practice are judicial officers, all they need to do is to refuse to nominate a lawyer or comment on the suitability of any legal practitioner for the purpose of appointment into the higher courts.
Even though the Guidelines allow the NBA to also nominate, such nomination must still be accompanied by the mandatory opinion of the judicial officers, without which no lawyer will meet the requirements for appointment as a judge.
For instance, Rule 3 of the NJC Guidelines states: “In the case of appointment of Judicial Officers for Court of Appeal and Supreme Court of Nigeria, the President of the Court of Appeal/Chief Justice of Nigeria shall as the case may be, write to Heads of Courts, serving Justices of Court of Appeal/Supreme Court of Nigeria and President of the Nigerian Bar Association asking for nomination of suitable Judicial Officers/Legal Practitioners for appointment as Justices of the Court of Appeal/Supreme Court of Nigeria.”
Rule 3(1)(b) of the Guidelines adds that “except a sitting judge supports a lawyer’s application for appointment as a judge, his application will fail.”
Rule 2, which equally applies, states: “Any person nominating a candidate must do so in writing and indicate clearly and in detail that he/she has sufficient personal and professional knowledge of the candidate’s requisite attributes for a reasonable period of time as would make him competent to make the nomination.
“He/she shall expressly certify that from his/her personal knowledge of the candidate, the candidate possesses the qualities set out in Rule 4 (4)(i)(a)-(b) of these Rules; and, where applicable the qualities set out in Rule 4(4)(i)(d) and/or (e).”
Under Rule 4, serving and retired justices are also requested to give their opinions on the suitability of persons seeking to be appointed a judicial officer. It is not clear whether all retired justices support the appointment of lawyers directly to the Supreme Court and the Court of Appeal.
Rule 4 equally states: “Soon after the closing date for the receipt of applications and or nominations, the Chairman of the Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits consisting of not less than twice the number of judicial officers intended to be appointed at the particular time and circulate the provisional shortlist together with a request for comments on the suitability or otherwise of any of the shortlisted candidates, as follows:
• (i) Among all serving and retired Judicial Officers of the Court to which an appointment of a Judicial Officer, other than the Head of a Court, is proposed to be made;
•(ii) Among all serving and retired Heads of the relevant State or Federal Court, including retired Chief Justices of Nigeria and retired Presidents of the Court of Appeal, in the case of appointment of a Head of Court.”
Except the provisions of the NJC Guidelines are altered, the chances of lawyers becoming judicial officers at appellate courts, straight from the Bar, appear slim for now.