Proposed Appointment of Lawyers to Appellate Courts Raises Concerns

Background

Exactly a month ago, the Nigerian Bar Association (NBA) requested members to apply to be appointed Judges of the Court of Appeal of Nigeria. In a message to Lawyers dated the 1st day of October, 2022, the President of the NBA, Yakubu Maikyau, SAN, informed members of a request by the President of the Court of Appeal of Nigeria requesting that the NBA recommend qualified members of the Bar to help fill 16 vacancies on the Bench in the Court of Appeal, which constitute both present and imminent vacancies.

The slots available for nomination are:

(a) Two slots for the North-Central geo-political zone

(b) Three slots for the North-East geo-political zone

(d) Three slots for the South-East geo-political zone

(e) Two slots for the South-West geo-political zone

(f) One slot for the South-South geo-political zone.

Circuit Judge/Recorder

I have long argued that this new approach hasn’t been properly thought through and that it would perhaps, be more ideal if we have a thorough and well thought out consultation process leading to substantive ideas for genuine reform, before embarking on such a far reaching process of change.

Admittedly, although there is a vast backlog of cases at both the High Court and Appellate Court levels of our judicial system that needs to be cleared, what the country really requires is the need to develop a circuit system as presently operates in England and Wales and some other common law jurisdictions. A Barrister or Solicitor who sits as a part-time circuit Judge is referred to as a “Recorder”. Since 1971, the term Recorder has been used for part-time Judicial appointments in England and Wales, designed to give experience of Judicial office to those deemed not yet ready to become full time Judges.

Significantly, it is now the practice to require all full time appointees to the Bench to first have some part-time experience as Judges. Barristers or Solicitors of at least 7 years standing may sit in either the criminal or civil divisions of the English Courts.

They are addressed by their usual title and in some instances as your Honour, paid a daily fee, and are expected to sit part-time as a Judge for between three to six weeks a year. Notably, retired Judges may also sit as Recorders. A similar system exists in Hong Kong, but the position of Recorder is usually restricted to Senior Counsels or Retired Judges, and just as in England and Wales they are expected to sit for between one to three months a year. The same applies in the USA/Canada, where part-time Judges hear misdemeanours, traffic violations and other petty criminal offences.

It will be most ideal to introduce a similar practice here in Nigeria, to help relieve our over burdened Judges of their heavy work load. It would also provide ideal experience for Lawyers desirous of becoming Judges later on in their professional careers, but many of whom due to economic considerations are not yet willing to make such a firm commitment. It would also provide some form of distinction for other senior and hardworking Lawyers who are not qualified to become SANs and, at the same time, are not ready to commit their professional careers to the Bench. Most importantly, this system will help in eradicating corruption from the Bench, since only committed Judges would now aspire to join the Bench full time.

Workings of the Circuit System

The system however, can only work in practice on a circuit basis, ideally within our six geo-political Zones. In other words, a Lawyer practising in Lagos will only be qualified to sit as a Recorder in a State away from his normal area of professional practice. For example, a Lawyer practising in Lagos may be sent to Ekiti to serve as a part-time Judge for about three months in the legal year, before later returning to his legal practice. Such a practice would help minimise instances of possible conflicts of interest. They would also assist our over-burdened Judges, particularly with interlocutory applications and other pre-trial issues.

Appellate Level

A similar practice may also be of benefit at the appellate level of our Judicial system, where SANs and other senior Lawyers may provide assistance to the Courts as Deputy Judges, but they should be restricted to interlocutory appeals and ideally have garnered experience in this regard sitting in the High Court. In short, it’s premature to start this process at the appellate level.

I think this would be a much better practice to adopt instead of appointing senior Lawyers directly to the Bench as appellate Judges, and as earlier indicated, there is already precedent for this practice in other common law jurisdictions. In the past here in Nigeria, the practice was to elevate the best of our Magistrates to the High Court to help clear any lingering backlog of cases, but unfortunately, standards have since dropped and a fresh approach is now required.

Some Lawyers have also argued that it is time again to re-invent the era when the likes of late Teslim Elias and late Augustine Nnamani who coincidentally were both Attorney-Generals of the Federation at different times, were appointed straight to the Supreme Court, with even Elias appointed as CJN. With profound respect this was a completely different era, when it was customary to have many talented Nigerians, many of whom were trained abroad, to fill the gaps left by the departing Colonialists. Those times have long gone, and with the abundance of talent trained either here in Nigeria or abroad, we have more than enough qualified Judges to fill any void in our appellate court system.

Having said that, the experience of our senior Lawyers should not be discounted, and could indeed, be useful on the Bench, but as earlier pointed out, only in a part-time capacity as is done in other common law jurisdictions.

Judge Richard Marks, KC

Only last week, a woman in England was sentenced to 34 years for murdering and decapitating her friend in a row over money. Jemma Mitchell, 38, became the first woman in England and Wales to be sentenced live on television for killing Mee Kuen Chong, 67, also known as Deborah, and dumping her headless body in some woodlands more than 200 miles away in Salcombe, Devon, England. Significantly she was sentenced by Judge Richard Marks KC ( the UK equivalent of SAN) who described her as “extremely devious”.

Interestingly Judge Richard Marks, KC, was appointed the 81st Common Serjeant on 3 March, 2015. That’s the second most senior Judge in the Crown Court. The Crown Court is a division of the High Court that deals with criminal matters.

Likewise Judge Anthony Kelly, KC who freed Novak Djokovic from detention on an application for judicial review (before he eventually lost on appeal) after his visa to compete at the Australian Open earlier this year had been revoked by the Australian Minister for Home Affairs. He was appointed to the Federal Circuit Court in 2017 after 30 years as a Barrister and 10 as a KC? What is therefore, obvious from the above examples cited, is that most practising Lawyers first of all gain experience on the Bench at the High Court level. Serving on the Bench is a call to service, and we must respect those who have committed and dedicated themselves to such service. It’s wrong to overlook many of our hardworking Judges who have already gained requisite and valuable experience on the Bench to serve as appellate Judges, in favour of members of the inner and outer Bar. The Bench ought not to be seen as a parallel career path, to that of a SAN or other Senior Lawyers. The Bench must always be viewed as higher, and it’s dignity maintained. It is for these reasons that Lawyers can’t go straight to the appellate courts, as some want to suggest. They should, and must start at an appropriate level of the High Court, in order to gain valuable experience. Perhaps, more significantly, their CV should also outline the cases they have handled. That way, we are all made aware of the requisite experience of the Lawyer elevated to the Bench.

Conclusion

The common law system is one great piece of heritage bequeathed to us by the departing colonial authorities, and although we are expected to modify the law to suit our peculiar needs and characteristics, we are equally expected as a country to stay abreast of changes that will aid the smooth and efficient administration of justice. A Federal circuit system which is even in use in the US, and which would aid the appointment of Judges and assist those already serving on the Bench, is a practice well worth considering.

There is no doubt that there is a need for a series of radical reforms to improve the efficiency of our judicial system, but whatever wide-ranging changes that is necessary to improve the delivery of our justice system, needs to be carefully thought out and considered.

Perhaps, more importantly, is the question – who should be in charge of the administration of our justice system, bearing in mind the need to retain the independence of the Judiciary at all times? The Judiciary, by making direct reference to the NBA to fill voids in its appellate structure, may indirectly be eroding its independence. In the same vein, it is not about Lawyers looking for a new challenge or motivation after making millions in legal practice, it is more about a call to service with the requisite and necessary experience.

A Law or Act establishing the part-time Judge will be one step towards garnering that experience, without the need to jump the queue by landing directly in the Court of Appeal or the Supreme Court, and in so doing, we will be developing a pragmatic approach, rather than a superficial approach to justice.