Barristers & Solicitors
Supreme Court and challenge of Electoral Litigations

The motions and appeals, according to then Chief Justice of Nigeria (CJN), Justice Ibrahim Muhammad, were part of the 1,874 motions and appeals heard by the court that year.

Although the court had about 17 Justices then, some complained that the apex court was not thorough in its scrutiny of the cases, perhaps because of the volume and the constraint of time limitation – as provided in Section 285(7) of the Constitution – and, as such, could not do substantial justice.

If that was the case during the 2019 post-election season when the number of the court’s Justices was higher, one can only imagine what the case would be shortly after next year’s general elections, if the number of Justices of the apex court is not raised from its current 13 and the appointment of Ariwoola is not made substantive.

  • The importance of the Supreme Court in a democracy

In addition to the appellate jurisdiction conferred on the Supreme Court in Section 233 of the Constitution and its original jurisdiction under Section 232, it is also required, under Section 233(2)(e)(i) – (vi), to sit on appeals relating to presidential and governorship elections.

The Executive Director, Access to Justice, Joseph Otteh, noted the primacy of the Supreme Court in a democracy, when he described it as “a court of supreme legal and extra-legal importance.”

Otteh argued that, on paper, the role of the apex court “is legal or constitutional.”

He added that the court also possessed an extra-constitutional role, denoted as its ‘political’ or institutional role, and which is likely bigger in significance.

He noted that the reference to the Supreme Court as a policy court implies that it is imbued with power to “set out, in broad strokes, what is the direction of the law.

“Through its interpretation and exposition of law, it is able to set the tone for how law is interpreted by all courts in Nigeria.

“A literalist or textualist oriented Supreme Court will likely deliver a system of national jurisprudence that is constrictive and sterile, while a socially-conscious Bench will likely breathe life into the living texts of the Constitution and blend interpretation to suit the needs of justice,” Otteh said.

  • A troubled Supreme Court

In view of its importance to the sustenance of democracy, the need to ensure a well staffed Bench of a nation’s apex court needs not be overemphasised.

In this regard, the Federal Judicial Service Commission (FJSC) in July this year, published a list of 29 names of persons to be considered by the National Judicial Council (NJC) to fill the existing vacancies in the Supreme Court.

It is hoped that the FJSC completes the process before the end of the year in view of the likely consequences of a depleted Supreme Court in an election season.

The acting CJN, Justice Olukayode Ariwoola, saw this danger when he raised that alarm that it was not well with the apex court.

At the valedictory court session held in honour of the retiring Justice Abdu Aboki, Justice Ariwoola noted that the sudden depletion in the number of the court’s Justices will further emburden the court.

He 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.

“From a relatively encouraging number of 17 Justices at the dawn of 2022, just like a flash in the pan, the number has suddenly dropped to 13 Justices.

“Like we all know, a single drop in the number of Justices here brings about a sudden increase in our workload as the inflow of appeals to the court is ever on the increase due to the highly litigious nature of Nigerians,” Justice Ariwoola said.

The Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami made similar observation when he noted that, with Aboki’s exit, “the apex court has almost returned to its pre-2020 numerical strength, with just 13 Justices, as against the required 21 under the 1999 Constitution of the Federal Republic of Nigeria.”

He assured that “we would work with the Judiciary and to ensure that these vacancies are filled as soon as practicable, in anticipation of expected surge in numbers of cases as we approach an election year.”

Section 230(2) of the Constitution provides for a maximum of 21 Justices for the Supreme Court, but the closest the country has got to that number is 20.

This was achieved on November 6, 2020 when the eight newly appointed were sworn-in to complement the existing 12.

  • A troubled appointment process

Beyond the trouble of how to promptly raise the number of its Justices, the Supreme Court also faces the immediate problem associated with the process of nominating new Justices.

While some stakeholders prefer the retention of the status quo, where appointment to the Supreme Court’s Bench is limited to the Court of Appeal, others have demanded that the scope be broadened to include the Bar.

Among those who want the retention of the status quo are Justice Muhammad and Prof. Yemi Akinseye-George (SAN).

Onomigbo Okpoko (SAN), Prof. Paul Idornigie (SAN), Prof. Deji Adekunle (SAN) and Otteh are among those calling for a liberalised process for the appointment of Justices for the apex court.

While in office, Justice Muhammad made it clear that he was opposed to appointing Justices for the apex court from among practicing lawyers.

At a conference of Justices of the Court of Appeal, the then CJN argued that it would work injunctive against those, who have committed their life to the Bench from the magistracy, to bypass them and appoint lawyers, who have had the best of the Bar, to the apex court.

Prof. Akinseye-George said: “I do not subscribe to the idea of appointing legal practitioners to the Supreme Court, because the culture of a judge is different from a practitioner, the upbringing of a practitioner is different from a judge.

“Any legal practitioner that wants to join the Bench should start from the High Court.”

On his part, Okpoko faulted the recruitment process, which he argued, discriminates against the Bar and promotes mediocrity by unduly emphasising the quota system or federal character.

He argued that the method of selection of the candidates for appointment of Justices in the Supreme Court and the Court of Appeal is unsatisfactory in the extreme.

“The appointment process appears to have been designed and operated to exclude good and competent lawyers in the legal profession from being appointed Justices of our appellate courts.

“The appointing authority appears to have established a policy that the vacancies created by exit of Justices of Supreme Court or the Court of Appeal are to be filled by picking a candidate from the state of the vacating Justice only notwithstanding the availability of known better candidates readily at hand from other states or Local Government Areas in case of Judges at trial courts.

‘Another sore point on the appointment of Justices in our nation, is the continued resistance and/or rejection of the necessity of appointing appellate Justices directly from the Bar as is the practice in other countries,” Okpoko said.

Referring to the provisions of sections 231(3), 238(3) and 250(3) as it relates to the qualifications for appointment to the High Court, Court of Appeal and Supreme Court Benches, Idornogie argued that there is no legal basis for limiting the recruitment process to the Bench.

Prof. Idornogie, a Fellow, Nigerian Institute of Advanced Legal Studies (NIALS), added: “The Constitution provides for ‘appointment’ to the Supreme Court and not ‘promotion’ from the Court of Appeal.

“Why are we restricting ourselves to only those from the Court of Appeal? I think that the time has come for us to revisit the policy regarding appointment into the highest court of the land.

“In doing this, I think that we should reconsider the meaning of ‘practice of law’. Is it only those in active legal practice that practice law?

“For instance, I am an Arbitrator and I write arbitral awards regularly that are equal to judgements of the High Court [Section 31 of the Arbitration & Conciliation Act, 2004].

“If I am interested in joining the Bench, why should I, as a Professor of Law and Chartered Arbitrator, be subjected to starting from the High Court?

“Most academics will find this unattractive. I really do not want to talk of the quality of some judgements, and yet being able to write judgements is one of the reasons why only Justices of the Court of Appeal are ‘promoted’ to the Supreme Court.

“We all know what judgements of the appellate courts were in the past, and what they are today,” Idornigie said.

Otteh noted that although the current Judicial Appointment, which came into effect in 2014 provide that persons, who meet the constitutional qualifications and can demonstrate the requisite track record can be considered for appointment as Justices of the Supreme Court, appointments to the apex court are currently limited to serving Justices of the Court of Appeal.

He proceeded to argue that “this longstanding pattern of bias against the consideration of ‘outsiders’ for appointment into the Supreme Court even offend the Constitution of Nigeria, which in Section 17(2)(a) expressly states that “every citizen shall have equality of rights, obligations and opportunities before the law.

“The advocacy to diversify or amplify the backgrounds and credentials of candidates appointed to the Supreme Court is, in some sense, rooted in the belief that, as the Judiciary casts its net further ashore, it can attract those who represent its front foot, and offer the best possibilities for invigorating the court, and entrenching the vitality, scholarship, but more importantly, the spirit we want restored in that distinctive court of policy; a Judiciary that is unafraid of standing up to unruly governments,” Otteh said.

Former Director-General, NIALS, Prof. Adekunle Adekunle advocated a transparent appointment process that will allow the selection of the best.

He noted that although the process for nominating and interviewing candidates to the Supreme Court Bench has been thrown open, ” sections of the Bar, me included, have said that we can do better than that “What we have been seeing is the practice of giving the Bar and the public generally a fait accompli, by just announcing that a committee has met and these are the people that have been nominated.

“We don’t want the process to be booby trapped. Appointing a good candidate is critical because removing bad judge is difficult because of the process and sentiment,” Adekunle said.

  • Other troubles

Beyond the depletion on its Bench, the Supreme Court also faces the challenges of inadequate funding, poor welfare for judicial officers, poor infrastructure, huge workload and inadequate deployment of technologies.

  • Inadequate funding

The Supreme Court, being part of the nation’s Judiciary, shares from the effect of inadequate funding.

Justice Muhammad noted this when he said the gross underfunding and neglect of the Judiciary over the years have impacted negatively on the infrastructure and personnel within the system.

This, he added, is to a large extent, affecting productivity, increasing frustration and deflating morale.

“The welfare of judicial officers is another critical issue that we can’t afford to sweep under the carpet.

“The paltry sum of money being collected as monthly salaries is an issue that needs urgent redress. The annual budget has been on a steady decline; and that has adversely affected the state of infrastructure in our courts.

“Effort should be made by the relevant authorities to increase the salary and also work out measures to improve the welfare package of judicial officers, especially after retirement.

“The comfort of my brother justices in various courts across the country is one of my topmost priorities and I will pursue it with the seriousness it deserves.

“I deally, retired justices should be accorded the benefit of annual medical treatment locally and abroad, if the need arises to go for foreign medicare.

“The subsisting poor medical care has accounted for the increasing deaths of most of our retired justices, as they often retire into penury and even without any befitting accommodation to rest their pale nerves,” Justice Muhammad said.

On how to improve funding for the Judiciary, Malami assured of the Federal Government’s commitment to enhancing the funding of the Judiciary.

Malami challenged judicial stakeholders, particularly the Nigerian Bar Association (NBA), to lead the fight to ensure that state governments complied with constitutional provision guaranteeing financial autonomy for the Judiciary.

  • Huge workload

On how to reduce the current hugde workload of the apex court, Justices Muhammad and Aboki suggested the alteration of the Constitution and relevant laws to limit the number of cases that should be accommodated at the Supreme Court.

Justice Muhammad said: “Our laws have to be amended to make most appeals to end at the Court of Appeal, which is competent, dexterous and well-equipped with the right materials and manpower to adjudicate effectively and resourcefully.

“All Nigerians need to be admonished on the imperative of being less litigious and be more disposed to alternative dispute resolutions to free the courts of this unnecessary over-stretching of both human and material resources.

‘It is not every dispute that must find its way to the court and it is not every matter that must come to the Supreme Court.”

Justice Aboki advocated reforms, particularly the amendment of the Constitution to reduce the number of cases filed at the Supreme Court.

He said certain interlocutory applications should not be countenanced by the apex court, while other political cases, except that if the presidential election should terminate at the court below.

  • Enhanced deployment of technology

Although the apex court was working on improving on level of technology application, there is need to do more in view of its importance to prompt and effective justice administration.

Justice Muhammad equally emphasised this when he said: “It is no more secret that technology is fast changing the face of law practice across the world and we must rise up to face the reality.

“I don’t think we have invested much in legal technology to be counted among the frontline legal practitioners across the world.

“We must brace up to face the reality of the times so that we will not be sailing against the tide.”