The Judiciary: Unequal ‘Co-Equal’ Arm

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Last Thursday, I attended the Valedictory session held in honour of Honourable Justice Amina Adamu Augie, CFR, Justice of the Supreme Court, who stepped down from the Apex Court having attained the mandatory retirement age of 70 on September 3, 2023, after 45 years of meritorious service on the Bench, in accordance to Section 291(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). Hearty congratulations Your Lordship, not just on your retirement, but on retiring with your reputation intact. 

Judicial Remuneration, Pension et al vs That of the Executive & Legislature 

I have always maintained that the Judiciary is the third co-equal arm of Government, and must be treated as such (see the Doctrine of Separation of Powers propounded by Baron de Montesquieu, and Sections 4, 5 & 6 of the Constitution) along with the Executive and the Legislature, but several things make it seem otherwise. 

The  provision of Section 291(3)(a) of the Constitution, makes one wonder. Aside from the fact that it is no longer news that, of the three arms of Government, the Judiciary is the worst paid, for example, with the Chief Justice of Nigeria taking home about N480,000 monthly and the other Supreme Court Justices, N751,000 (when a friend of mine saw how much JSCs are paid, he commented that “So, na only Police dem get! Dem no dey pay dem better money” – “So, it is only their Police Orderlies they have! They are not well paid”), the aforementioned Section 291(3)(a) stipulates that only a judicial officer who has served on the Bench for at least 15 years and retires at at least the discretionary retirement age of 65 or more (formerly 60 for High Court Judges, but with the recent increase in their retirement age, which some have questioned I might add, their discretionary age will also be 65 too), be entitled to a life pension at a rate equivalent to their last annual basic salary, allowances and whatever retirement benefits which are applicable. Section 291(3)(b) at age 65 of the Constitution includes a proviso that where the judicial officer hasn’t served for up to 15 years and retires at the discretionary age or more, the pension etc shall be prorated for the number of years served in relation to 15 years. That means that a Lagos State High Court Judge who for instance, goes home with about N500,000 monthly, and retires after four years (like the tenure of a Legislator), will get about N133,000 as pension monthly!

This condition of the number of years of service is not given for the President, Vice President, Governor and Deputy Governors (the Executive) who only serve for a maximum of eight years, and they end up with fabulous retirement packages that the Judiciary cannot dream of. Legislators also get a fabulous bulk severance package payment after serving for only four years at the end of one National Assembly, regardless of whether they return in the next one! While Supreme Court Justices’ vehicles may be used for the duration of their service at the Apex Court, a Legislator who is elected to the National Assembly gets a new vehicle at the beginning of his/her tenure, and on return to the following National Assembly, is taken as a ‘Fresher’ and gets another new vehicle, even if it’s only four years later. 

It certainly makes one wonder how equal co-equal is, in the Nigerian setting!

The Role of the Supreme Court & Causes of Its Unnecessarily Heavy Workload 

Hon. Justice Augie in her interesting Valedictory Speech, referred to the workload of a Supreme Court Justice with some adjectives like burdensome, difficult, harsh, intolerable, hard and wearisome, and noted that the Supreme Court is a policy-making court which should not be burdened with hearing some of the type of appeals that are brought before them. Her Lordship gave the example of an appeal about the arson of 12 goats which were set ablaze, that was brought before the Apex Court. She said she couldn’t help but voice her astonishment to her brother Justice during the proceedings, that such a matter should be brought before them. In a conversation with a JSC, his Lordship talked about an appeal concerning a one-room shop in a market in Abuja, which they had to hear! (Landlord and Tenant matter). Unfortunately, Section 233 of the Constitution covers a wide scope, and for now, the Supreme Court is burdened with the hearing of all manner of appeals, be it one that originates from a case concerning the theft of one chicken or goat, or that of murder which carries the death penalty, or election petitions down to constitutional matters. 

Hon. Justice Augie seconded the earlier call by the Chief Justice of Nigeria, Hon. Justice Olukayode Ariwoola, GCON, at the Special Session to mark the commencement of the 2022/2023 Legal Year, in which his Lordship asked for a constitutional amendment to restrict the circumstances under which appeals can reach the Supreme Court. Her Lordship called upon her  former student at the Law School where she lectured earlier on in her career, the Senate President, Godswill Akpabio and the 10th National Assembly, to make the necessary constitutional amendments, in order to free the JSCs from constraints “that impede their ability to fulfil their mandate of upholding the rule of law, justice and democracy”.

In the UK, the Supreme Court (UKSC) is the final court of appeal for all UK civil matters, and criminal matters in England and Wales, and Northern Ireland. Unlike our Supreme Court, the UKSC cannot overturn legislation. The court system in Scotland is different, and though the process of civil appeals from the Scottish Court to the UKSC is substantially the same as the other UK civil appeals with some exceptions, there is no right of appeal to the UKSC from the Scottish High Court of the Justiciary in criminal matters. To be able to get permission to appeal to the UKSC, however, there must be “an arguable point of law on a matter of general public importance”. In R (Eastway) v Secretary of State for Trade & Industry [2000] UKHL 56 per Lord Bingham, the Court explained that the role of the Supreme Court was to “….necessarily concentrate its attention on a relatively small number of cases recognised as raising legal questions of general public importance. It cannot seek to correct errors in the application of settled law, even where such are shown to exist”. 

In contrast, in Nigeria, many trivial cases go to our Supreme Court; and other appeals go to the Apex Court not even to correct errors, but for the restatement of already established legal principles, which the Apex Court has pronounced upon times without number. See for example, the cases of Ucha & Anor v Elechi & Ors (2012) LPELR-7923(SC) per Olabode Rhodes-Vivour, JSC & Wike v Peterside (2016) LPELR-40036 (SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC making the same pronouncements on what a Petitioner must show clearly in evidence, to prove noncompliance in the conduct of an election, in order to satisfy the provision of Section 135(1) of the Electoral Act. Since, for example, Section 285(14) of the Constitution has defined ‘pre-election matter’ to include the issue of nomination of candidates, restricting parties who can institute proceedings in that regard to fellow aspirants in the same political party, or the political parties of the aspirants/candidates themselves, and this has been pronounced upon several times by the Supreme Court, how come such matters still end up as part of the post- election petitions at the Tribunals going all the way to the Supreme Court? See the case of Wada & Ors v Bello & Ors (2016) LPELR-47015(SC) per Nwali Sylvester Ngwuta, JSC on the nomination of candidates being an intra-party matter, with non-party members or party members who didn’t participate in the party primaries lacking locus standi to raise this  issue which should be instituted at the Federal High Court. Also see Nwite v PDP & Ors (2022) LPELR-59192(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC.

The Apex Court of the land, should not be a playground for trivial matters that can be settled at the court of first instance. The aforementioned case of the arson of 12 goats, should have ended at the Magistrate Court! Should appeals also lie to the Supreme Court, in cases where the questions of law arising therefrom have already been settled by the Supreme Court? If Registry Clerks in the Lagos State Judiciary are able to sift through court processes to check if litigants have completed the pre-action protocol before they are qualified to file their court processes, surely a system can be put in place at the Supreme Court level where “Masters” sift through grounds of appeal, at least in civil cases, to affirm their qualification for filing at the Supreme Court. Again, the fact that costs are not punitive enough, makes it easier for vexatious appeals to be filed.

We also have the issue of our learned colleagues who have to garner the requisite number of Supreme Court cases, in order to qualify to apply to take Silk. This increases the burden of the Apex Court, as this exercise occurs annually. Section 14(5)(c) of 2023 Guidelines for the Conferment of the Rank of Senior Advocate of Nigeria provides that where a legal practitioner conducts a case from the High Court all the way to the Supreme Court, only three Supreme Court judgements are required in that category to be qualified to apply for the rank; but, where the Applicant only conducted the cases at the Supreme Court, six Supreme Court judgements are required for the application. If for example, there are 100 Applicants, and only 25 have conducted their cases from the High Court to the Supreme Court, their total number of Supreme Court judgements is 75, while the other 75 Applicants require six judgements each, which amounts to 450 Supreme Court judgements – a total of 525 Supreme Court judgements. Many of these cases may have nothing to do with any public interest or policy, nor be of public or constitutional importance or contain novel questions of law. But, because unlike the UK, there is no stipulation that the appeals lying to the Nigerian Supreme Court must raise questions of law of public legal importance, but only that they involve questions of law, and it matters not that the questions of law may already have been settled by the Apex Court, practically every case can qualify for appeal to the Supreme Court! The recent Naira Currency Redesign case for instance, was one that raised questions of public importance. 

There are also restrictions on the right of appeal to the UKSC. For instance, by virtue of Section 54(4) of the Access to Justice Act 1999, if the UK Court of Appeal refuses to grant leave to appeal to it from a lower court, such refusal cannot be challenged at the Supreme Court. Here, it is the opposite, as if such application is refused by the Court of Appeal, the Applicant is permitted to further appeal to the Supreme Court. 

Conclusion 

The sum and substance of it all is that, our judicial process needs urgent review, while our Judiciary must be strengthened. Hand in hand with any amendment restricting the type of matters that go to the Supreme Court, must be an improvement in the quality of Judges appointed at all levels of the courts and Magistrates too, along with a marked and satisfactory improvement in their conditions of service, so that litigants are sure that the decision arrived at by the court at whichever level of adjudication they end up, are fair and just, especially if their matters are not qualified to go before the Supreme Court. One reason why some litigants prefer to exhaust all avenues of appeal, is because their confidence in some of the lower courts has been eroded, and they want to hear a final pronouncement from the final court. The Nigerian Judiciary has an extremely heavy and onerous workload, with possibly the busiest dockets in the world, but, yet, the co-equal arms of government who receive better remuneration and allowances, do not have the same heavy workload, because even if they do, they have multiple levels of support – Ministers, Special Advisers, Special Assistants, Departments, to mention but a few. I’m not sure that a Supreme Court Justice, has more than one Research Assistant!