Senior Lawyers Lament Depleting Number of Supreme Court Justices

* Seek constitutional amendment to increase apex court’s judges to 30

Gboyega Akinsanmi in Lagos and Alex Enumah in Abuja

Senior lawyers yesterday lamented the depletion in the number of Justices of the Supreme Court from the 21 stipulated in the Constitution to 13 and pointed out the adverse implications of such a shortage of access to justice in the country.

Consequently, the lawyers have challenged President Muhammadu Buhari; the National Judicial Council (NJC); Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, and the Federal Judicial Service Commission (FJSC) to expedite action on the process of elevating eight additional qualified persons to occupy the vacant seats in the apex court.

The call was predicated on the need to ease the justices of the heavy workload occasioned by the retirement of some of their colleagues in the last few months.
In their separate interviews with THISDAY yesterday, Chief Mike Ozekhome (SAN); Chief Joe Gadzama (SAN); Mr. Kunle Adegoke (SAN), and Professor Yemi Akinseye-George (SAN); Mr. Ejembi Eko (SAN); Mr. Dayo Akinlaja (SAN); and Rev John Baiyeshea (SAN), among others, expressed grave concern over the shrinking number of the apex court’s justices.

They argued that the appointment of more justices would bolster the apex court’s capacity to effectively deal with the volume of post-election cases in 2023.
The Supreme Court, which ought to have a maximum of 21 justices, had opened the year with 17.
The number has since dropped to 13 with the retirement of some justices.

Recall that the CJN, Justice Ariwoola, had recently raised the alarm over the depletion of the bench of the apex court, following the retirement of Justices Abdu Aboki, Justice Olabode Rhodes-Vivour, Mary Peter-Odili, Ejembi Eko, former CJN Ibrahim Muhammad, as well as the deaths of Justices Sylvester Ngwuta and Samuel Oseji, between 2021 and 2022.

The drop in the number of these judges has raised concerns about the huge workload the remaining justices have to contend with, going by the fact that in Nigeria almost all cases from the magistrate and high courts end up at the apex court.
On his part, Ozekhome said the shortage of justices at the apex court posed a great risk to the ability and capacity of the few remaining justices to handle the suits before them with election matters gradually coming up ahead of the 2023 polls.

The senior advocate said: “Only 13 Justices of the Supreme Court are left out of 21 stipulated in the 1999 Constitution. This is against the constitutionally permitted figure of 21. Even with 21 Justices, their dockets are still full with cases from 2002 to 2010 being not attended to.”

He further explained that most of the cases that normally get the attention of the Justices of the Supreme Court “are usually political cases because they are time-bound under the 1999 Constitution and Electoral Act. For example, if they do not file a pre-election matter within 14 days, it is gone.

“Once they do not decide certain political parties’ matters within 180 days from the lowest courts to the apex court, the cases become dead. The Supreme Court has also said such constitutional provisions cannot be elasticated or elongated. So, because of that, the Justices of the Supreme Court stretch themselves to attend to political cases,” the human rights activist explained.

Ozekhome lamented that the trend “hinders the apex court justices from attending other genuine cases, particularly cases that concern business and investors’ funds. Any country that cannot quickly decide cases concerning investors will encounter disinvestment,” he added.
He also pointed out that 21 justices “are not sufficient for a country of 217.6 million.”

The senior lawyer called for the amendment to the 1999 Constitution to expand the number of the apex court’s justices to at least 30 and also increase their retirement age from 70 to 80 years with a proviso that whoever wants to disengage after 70 years can do so voluntarily.
Also, reinforcing Ozekhome’s views, Gadzama said new justices should be appointed without further delay.
He said: “The current number of justices at the Supreme Court cannot cope with the avalanche of cases that will flow from the coming general election, while also attending to the already full dockets of the court.

“This would overwhelm the Supreme Court. When there is a shortage of Justices, the implication of this is that it would affect people’s access to justice and how their disputes are resolved by the legal system.
“There will be denial or delay in providing justice to the litigants as the current number of Justices is inadequate for the number of appeals and cases brought to the Supreme Court, how much with election petitions that would come in very soon. There would be many cases pending and due to a reduced number of Justices, timely justice would not be provided,” he explained.

Gadzama pointed out that any recommendation by the Nigerian Bar Association (NBA) should be subjected “to further scrutiny by an independent panel for the suitability, intellectual and character evaluation before their eventual appointment.”
For Adegoke, the depletion in the number of Justices of the Supreme Court is really disturbing.
He also pointed out the implication of their depletion to the health and productivity of the apex court justices, noting that the remaining senior jurists “are overworked with overflowing dockets daily.”

He attributed the slow adjudication of cases at the Supreme Court “to the expansion of its jurisdiction to taking appeals in governorship election petitions and all pre-election matters automatically ending up in the Supreme Court.”
With the fewer number of the justices currently sitting at the Supreme Court, Adegoke noted that the remaining senior jurists would become more overwhelmed with work as the election season of 2023 approaches

But unlike Ozekhome and Gadzama, Adegoke suggested that the jurisdiction of the Supreme Court ought to be streamlined to issues that matter.
He canvassed a bill for the amendment of the 1999 Constitution of the Federal Republic of Nigeria to reduce the jurisdiction of the Supreme Court.
“The Supreme Court cannot be an all-comers’ court where every matter, no matter how infinitesimal the economic value is, must receive the supreme touch. A one-room property dispute in the remotest part of Isale-Osun, Osogbo, must not necessarily end up in the Supreme Court,” he argued.

On his part, Akinseye-George also called on the CJN “to address the issue urgently because the justices are already overworked. At the moment, the Supreme Court only takes on a few cases on the list. So, we need the court to be fully constituted.”

While disclosing that some names had been already shortlisted, Akinseye-George said time should not be wasted in completing the appointment. They should quickly pass the names to the president through the processes so that by the end of this month or November we should have the full complement of the court”, the senior lawyer added.

Akinseye-George further noted that the justices should not just be appointed but that arrangements for their accommodation, vehicles, and offices should be settled alongside their appointment.

Another senior lawyer, Eko argued that the issue of more appointments is understated, adding that the court ought to have been given its full complement of 21.
“There should be an urgency in the replacement of the justices, not just replacement, they should give them the full complement as suggested by the Constitution. At no point should they be less than 18.”

Another senior lawyer, Akinlaja said it was probably too early in the day to conclude that nothing was being done, stressing that there is a process to be followed in the appointment of the Justices of the Supreme Court.

He noted that the process has to be kick-started by the judiciary itself.
According to him, there may be a need to speed up one or two things.
In his contribution,  Baiyeshea (SAN)  said: “I want to believe that the nominations have been concluded, and the process concluded by NJC”, adding that, “the candidates nominated are to be sent to the President by Section 231(2) of the Constitution.

 “You see how US Presidents who have the opportunity to appoint the Justices of the Supreme Court normally act swiftly and promptly. It is usually a big political issue in America. Unfortunately, our system here is somewhat dysfunctional,” he added.