Making the Supreme Court, Supreme 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Is it a Question of Increasing the Number of Supreme Court Justices? No!

Is the Supreme Court of the Federal Republic of Nigeria (SCN) the highest court of the land, or has there been a concerted effort to turn it into a glorified High Court or even Magistrate Court, over the years? This question, as insulting as it may sound, has now become pertinent and urgent, not just because of the sheer magnitude of the number of appeals that go the Supreme Court as if it is a Magistrate or High Court, but also because of a news report that I read last week, that Senator Orji Kalu has sponsored a Bill in which he seeks the amendment of Section 230(2)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), to increase the number of Supreme Court Justices from 21 to 33. Why didn’t he even suggest 37, one Justice per State and FCT, Abuja or 3 from each Senatorial zone plus Abuja to make 109 like the Senators? Of course, I am being sarcastic! I’m sorry to say that half of the problem we have in Nigeria, is that people that have absolutely no clue about issues are the ones that are able to get into positions, in which they are able to influence those same issues that they know nothing about! And, we wonder why Nigeria appears to be in a mess! Senator Orji Kalu wants to turn the SCN into a ‘Taja Tèran’ Supreme Court’! That is a not-so-nice way of saying Senator Kalu wants to turn the Supreme Court into a free-for-all, come-one-come-all, take every appeal, including the nonsense ones, Supreme Court! That is not the essence of an Apex Court of any land.

The UK legal system, on which that of Nigeria is based upon, has 12 Supreme Court Justices; USA has 9; Ghana had 15; Kenya, 7; Canada, 9; Australia, 7. This shows that a Supreme Court, which is usually the highest court in any land, certainly couldn’t have been established to carry out the duties of an everyday court, and hear every appeal from the lower court; but, rather, it is a Policy Court that is meant to hear a limited amount of cases that touch on areas like constitutional matters, issues of public policy/interest and disputes between certain levels of government. Sadly, there has been a concerted effort over the years by legal practitioners, to reduce the Supreme Court to just the most superior appeal court that hears every appeal emanating from the lower courts. This is certainly not the purpose and function of the SCN. Apart from the Supreme Court of India which sits as an appeal court and a constitutional court, and can have up to 34 Justices including the Chief Justice (it currently has 32), Nigeria appears to have one of the highest number of Supreme Court Justices at 21. 

When India had 31 Supreme Court Justices, it still had a huge backlog of cases, which points to the fact that it is not necessarily the number of Justices that is the issue or the cause of the backlog of cases at an Apex Court, but other reasons, for instance, the number and type of cases that are able to get to a Supreme Court for hearing, and inadequate use of technology that can ease and hasten justice delivery. 

Low Hanging Fruit? No!

I’m sure we all know the literal meaning of the phrase ‘low hanging fruit’ – a fruit that hangs so low that it makes it the easiest fruit to pluck from the tree. You don’t have to climb the tree and risk breaking your bones when trying to pluck the fruit, because it is hanging so low on the tree that you can just stretch your hand and pluck it. In today’s parlance, it is used to describe the easiest option that could maybe be used to achieve a goal. But, no one said the seemingly lowest hanging fruit is necessarily the juiciest, or the best fruit, or even a good fruit to eat from that tree! My point? Just like Government believes that taxing people to death is the lowest hanging fruit for generating revenue, and it obviously isn’t, particularly when Nigerians are currently facing so much financial hardship that there’s barely anything left in their pockets to use to pay tax; in this case, increasing the number of Supreme Court Justices may also seem like a low hanging fruit to some who are not abreast with all the facts, but it isn’t the way to address the backlog of cases at the Apex Court. 

In order to solve a problem, one must be able to identify its causes. For example, the reason for rascality on the part of Lawyers and judicial officers, aside from greed, corruption and determination to win cases for clients whether by fair or foul means on the part of some, is that Lawyers are not sanctioned for bad behaviour. If Lawyers had been properly and effectively sanctioned by the LPDC (Legal Practitioners Disciplinary Committee), they would not have developed the bad habit of bringing frivolous appeals to the Supreme Court, filing cases in courts that have no jurisdiction, and indulging in all manner of abuse of court process. 

In the case of judicial officers, we have seen the elevation of a few Justices to the higher Bench following their perverse decisions, almost as if their bad behaviour was the stimulant for their promotion. If the NJC (National Judicial Council) continues to allow such erring judicial officers to get through the cracks and be elevated instead of being sacked, then we shall continue to be served with “the unpalatable cocktail of misleading and conflicting judgements” that the Chief Justice of Nigeria, Hon. Justice Olukayode Ariwoola, GCON recently referred to at a Workshop for the Judiciary, along with other forms of abuse of court process. It is trite law, that it is the NJC that is empowered to discipline erring judicial officers. Even when they may be alleged to have committed a criminal offence, the disciplinary powers of the NJC must first be exercised. See the cases of Opene v NJC & Ors (2023) LPELR-60656 (CA); FRN v Nganjiwa (2022) LPELR-58066 (CA). 

Backlog of Cases at the Supreme Court: Causes

The main reason for the backlog of cases at the Supreme Court of Nigeria (SCN) is that by virtue of Section 233(1) & (2)(a)-(e) of the Constitution, almost everything plus the kitchen sink can be appealed to the SCN as of right. And, for those that cannot be appealed as of right, leave of court can be sought and obtained from the Court of Appeal or SCN, to appeal to the SCN (see Section 233(3) of the Constitution). The National Assembly (NASS) can also enact laws on other cases of appeals, that the SCN can hear. Does this not all translate to an overburdened SCN that hears all manner of appeals, including Landlord and Tenant Matters? Hundreds of important cases involving millions of Nigerians, or Billions of Naira that impact the Nigerian economy are languishing, because the SCN must take cases in chronological order; and so, some of these crucial appeals do not see the light of day for years, while appeals concerning chieftaincy matters of an unknown village hierarchy, or customary land tussle, or a shop in Wuse Market, Abuja are heard, because they are first in time! I am convinced that this cannot be the role of a Supreme Court! This is aside from exercising its original jurisdiction, which NASS has now expanded to include disputes, whether they be of law or fact, between NASS and the President, NASS and any State House of Assembly, and NASS and any State of the Federation (see Section 232 of the Constitution and Section 1 of the Supreme Court (Additional Original Jurisdiction) Act 2002.  

According to Ballopedia, during its 2023-2024 term, the U.S. Supreme Court (SCOTUS) heard 62 cases; between 2007 and 2022, that is, a period of 15 years, SCOTUS gave 1,118 opinions, an average of 74.5 cases per annum. Out of about 10,000 petitions for a writ of certiorari, that is, a writ to seek the judicial review of the lower court’s decision, SCOTUS grants and hears only about 75-80 cases, According to the UK Supreme Court (UKSC) website, the UKSC decided 54 cases in 2023, 43 in 2022, 77 in 2021, and 57 in 2010. The UKSC receives about 230 applications, and hears an average of about 90 cases a year. In Nigeria, over a period of 15 years, assuming that 100 Advocates apply annually to be elevated to the rank of Senior Advocate of Nigeria, each one requires 6 SCN Judgements, that’s something in the region of 9,000 SCN Appeals for SAN Applicants alone, not to mention other appeals! And, the truth of the matter is that, half or more of those appeals do not enrich our jurisprudence in any way. Compare that to SCOTUS’s 1,118 cases, over the same period of 15 years. 

In the Online Law Dictionary, the term ‘Leave of Court’ is defined as “Permission obtained from a court to take some action which, without such permission, would not be allowable…..”. In the context of this discourse, ‘some action’ is being able to appeal to the SCN. Even interlocutory applications that can be determined with the substantive suit, instead are taken all the way to the SCN by Counsel while the substantive suit languishes at the court of first instance; and when the substantive suit is finally concluded, that is also appealed up to the Supreme Court! 

In Petgas Resources Ltd v Louis N. Mbanefo SC.129/2018 Ruling delivered on 20/12/2021 per Helen Moronkeji Ogunwumiju, JSC, Her Lordship stated thus: “The provision for leave to appeal as provided in the Constitution, is a means to screen frivolous criminal and civil appeals from being heard by…..the Supreme Court of Nigeria….There was the prospect that the Appellate Courts would be overburdened….the effectiveness of the purpose of the provision for leave, has been rendered minimal….”. Her Lordship, Ogunwumiju, JSC, further stated: “The provision for leave to be granted in the Constitution, particularly in relation to the Supreme Court, is a policy enshrined so that the Supreme Court would determine only questions of law involving issues of general public interest, where there are conflicting judgements of the court below, and where there is no settled position yet on that issue of law by the Supreme Court. Also, leave may be granted when a decision of the Supreme Court would provide clarity or helpful information for future development of the law, and finally provide guidance for lower courts in their adjudication on such subject-matter”. I concur with this reasoning. 

Unfortunately, instead of it being a means to screen frivolous appeals, Section 233(3) of the Constitution has been abused by Lawyers as a means to bring frivolous appeals to the Supreme Court, cunningly trying to couch their prayers for leave to appeal to fit into what Her Lordship, Ogunwumiju JSC described above, when they don’t fit at all, or many a time, tabling issues that have already been well settled by a plethora of SCN authorities and need no further clarification. Why should everybody’s time be wasted on rehashing old settled principles? It appears that the SCN Justices must exercise the powers donated to them in Sections 11 & 32 of the Supreme Court Act as a matter of course and regularity, to be able to dispose of frivolous appeals summarily and swiftly.

Conclusion 

It is time to consult the leadership of the Judiciary on how best to handle the backlog of appeals at the SCN, and prevent any unnecessary build up in the future. There must be a holistic resolution to this hydra-headed problem, which must include adequate funding to embrace technology in the SCN. Nevertheless, it is bizarre for a Senator to believe that he is in a position to decide how best to make the Supreme Court function optimally, and that resolving the issue is as superficial as simply increasing the number of Supreme Court Justices. It is not. 

I would say that one of the lowest hanging fruits, or fruit that has already fallen on the ground and can be picked up to help to fix this backlog problem, is streamlining the appeals that can lie before the SCN; for Lawyers to stop filing frivolous appeals, be it interlocutory or substantive; for Lawyers to stop re-litigating matters that have already been settled by the SCN, up to the SCN again; and for there to be clear sanctions available for Lawyers who breach the guidelines. 

As one that has edited Law Reports for almost eight years on a weekly basis, and mostly SCN cases too, I must say that a good number of them are not issues that are being decided for the first time, nor do they benefit the public in any fantastic way; in fact,  many of them are dismissed. As Her Lordship, Ogunwumiju JSC put it in Petgas Resources Ltd v Louis N. Mbanefo (Supra): “There can be no public advantage for the Supreme Court in repeating ad nauseum the same principles of law, or dealing with narrow issues of little impact on the general public….Neither can it be to the public advantage for the system to be clogged with interlocutory appeals which hang the substantive cases at the lower courts for decades in some instances”. Some of the solutions to the backlog problem, lie in addressing the observations made by Her Lordship.