Concerns Over Proposed Appointment of Lawyers to Our Appellate Courts

Introduction

The plans of the Nigerian Bar Association (NBA) through its Judiciary Committee calling for expression of interest from suitably qualified legal practitioners from specific geo-political zones for the appointment of six senior Lawyers directly to the Supreme Court, is a cause of consternation amongst Justices of the Higher Courts and the legal profession in general.

Concerns

Under the extant Revised National Judicial Council Guidelines for the Appointment of Judicial Officers to All Superior Courts of Record in Nigeria which came into force on 3rd November, 2014, Justices of the Supreme Court and the Court of Appeal are required to write an assessment for whoever seeks appointment to the Appellate Courts. However, since the opinion and assessment of Appellate Judges is mandatory, no Lawyer will be able to meet the requirement for appointment to the Appellate Courts without them. This however, is not the main issue of concern. What is more concerning, is the sudden haste. Wouldn’t it 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?

Part-Time Circuit Judge/Recorder in Other Common Law Jurisdictions

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 it is presently operated 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 a full-time Judge. 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 seven 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 like in England and Wales, they are expected to sit for between 1-3 months a year.

The same applies in the USA/Canada/Australia, where part-time Judges hear misdemeanours, traffic violations and other petty criminal offences. Recently, the Novak Djokovic case on entry into Australia for the Australian open last January, was heard initially by a Queen’s Counsel (QC) sitting on a Sunday before eventually going on appeal.

Advantages of the Circuit Judge System

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 would help in eradicating corruption from the Bench, since only committed Judges would now aspire to join the Bench full-time.

Making the Circuit Judge System Work

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 practice. For example, a Lawyer practising in Lagos may be sent to Ekiti to serve as a part-time Judge for about 3 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. This practice needs to be perfected at the High Court level, before introducing it at the Appellate level. It is only then, that we should modify this practice of appointing Lawyers to the Bench by nominating SANs and other senior Lawyers to provide assistance to our Appellate Courts as Deputy Judges, provided they are not conflicted. All in all, this would be a much better practice to adopt, instead of appointing senior Lawyers directly to the Bench as appellate Judges, and as already indicated, there is known 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.

Elias CJN & Nnamani JSC

Some Lawyers have argued that it is time again to re-invent the era when the likes of late Teslim Elias and Augustine Nnamani (but to mention a few 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. These 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. The experience of our senior Lawyers could indeed be useful on the Bench, but as earlier indicated, only in a part-time capacity as is done in other common law jurisdictions.

SANS

On the flip side, the Body of SANs, just like our Judiciary, is also in dire need of reform. Our senior Lawyers would be better advised to review and make better the mode of appointment of our SANs, rather than show undue ambition by adding extra feathers to their caps, by sitting in our Appellate Courts without the necessary and requisite experience. Furthermore, the mere fact that most of them are SANs, doesn’t necessarily mean they can add real value to our judicial system. Some of the Lawyers shortlisted are successful private Lawyers who have built up a vast array of commercial client bases and interests over the years, and it is not inconceivable that many of them will be severely conflicted as sitting Judges of the Supreme Court.

Conclusion

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 allowing 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. Both SANs and senior Lawyers have made their choice, early on in their professional careers. If they want a change in direction by becoming Judges they must show they have the right experience, which at the moment, none of them have. 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 Supreme Court, and in so doing, we will be developing a pragmatic approach rather than a superficial approach to justice.

Culled from Thisday