Constitutional Provision For Appointment Of Supreme Court Justices- Need For Amendment And Compliance

By Moses A. Ebute, Esq

The Supreme Court of Nigeria is the highest Court of the land and is a creature of the Constitution of the Federal Republic of Nigeria 1999 (as amended): See Section 230 (1) which provides;

“(1) There shall be a Supreme Court of Nigeria.”

The court exercises both appellate and original jurisdiction and must be composed of Justices to carry out its functions or jurisdiction and powers.

By virtue of Section 234 of the Constitution (supra), the Supreme Court shall consist of five justices in exercising its jurisdiction. See also Section 10 (1) of the Supreme Court Act which states;

“ 10 (1) The Supreme Court shall be duly constituted if it
consists of not less than five Justices.”

However, when the Court is sitting to consider an appeal brought under S. 233 (2) (b) or (c) of the Constitution, or exercise its original jurisdiction in line with S. 232 of the Constitution, it shall be Constituted by seven (7) justices.

The essence of this work is to decipher the minimum number of Justices that the court must have or consist of at every point in time. The statutory provision for this is as contained in Section 230 (2) of the Constitution. It provides;

“ 230 (2) The Supreme Court of Nigeria shall consist of-
The Chief Justice of Nigeria; and

Such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.”

See also Section 3 (1) of the Supreme Court Act, 1960 (as amended) which provides thus;

“ 3 (1) The number of Justices of the Supreme Court shall not
exceed 21.”

From the provisions above, it can be seen that the court may have up to twenty- two (22) Justices but certainly not more than that.
However, that is not to say that where the number of justices is less than 22, the court cannot function or exercise its jurisdiction.

One can see why today the Supreme Court is made up of only twelve (12) Justices. This is simply because unlike the Court of Appeal, the apex Court does not have a mandatory requirement or provisions for a minimum number of justices. In the case of the Court of Appeal, the law provides in Section 237 of the 1999 Constitution (as amended) thus;

“ (1) There shall be a Court of Appeal

(2) The Court of Appeal shall consist of-

a president of the Court of Appeal; and

such number of Justices of the Court of Appeal, not less than forty-nine of which not less than three shall be learned in Islamic personal law, and not less than three shall be learned in Customary law, as may be prescribed by an Act of the National Assembly.”

The only saving grace the apex court enjoys currently is the provision of Section 234 of the Constitution on the number of Justices that is required to hear a case (either 5 or 7 as the case may be).

By the said provision (S. 234), the court must at every point in time have a minimum of just eight (8) justices. This is even inclusive of the Chief Justice of Nigeria.

Therefore, in order to correct this anomaly, it is germane and crucial that Section 230 of the Constitution and Section 3 (1) of the Supreme Court Act be amended to specify the minimum number of Justices the court must consist of at any and every point in time as is the case with the Court of Appeal.

It is also suggested that the National Judicial Council (NJC) should nominate more Justices for appointment to the Supreme Court to meet up the maximum number of twenty-two (22) as provided in Section 230 of the Constitution.

By the combined provisions of paragraphs 13 (a) & 21 (a) of the 3rd Schedule Part 1, of the Constitution (supra), the NJC upon the advice of the Federal Judicial Service Commission has the statutory power to nominate and recommend the appointment of justices of the Supreme Court to the President.

Furthermore, the NJC should act like the Independent National Electoral Commission (INEC) and be proactive in its duty to nominate and recommend Justices for appointment to the Supreme Court. In this wise, the NJC needs not wait until a Justice of the Court retires before nominating and recommending a replacement. To wait until a Justice of the court retires before a replacement is nominated and recommended for appointment would be a serious draw back on the administration of justice system.

In the case of the INEC, it knows when the tenure of those elected into the executive and legislative organs of government, both at the Federal and state levels, are billed to expire. It fixes dates for the various elections, prepares for and conduct the elections ahead of time. Therefore, at every point in time both organs of government enjoy continuity as those elected are immediately sworn in to take over from those whose tenure would have expired.

The retirement age of every justice of the Supreme Court is known to the NJC even before their appointment and swearing in. See Section 3 (2) of the Supreme Court Act.

“(2) Any person holding the office of Chief Justices of Nigeria or a Justice shall vacate that office when he attains the age of seventy years.”

Therefore, nothing stops the same NJC from setting the necessary machinery in motion to nominate and recommend the replacement of a soon-to-retire Justice of the Supreme Court even months or weeks ahead.

Therefore, if this feat is achieved, both retirement of a serving Justice and his immediate replacement can be done the same day or the same week.

It is instructive to note that executive and legislative organs both have their full complements of officers and members to carry out their functions at every point in time. It is only the judicial arm that suffers from deficit of officials/ judges/ justices and at times this deficit is self inflicted. Let us learn to do the right thing at the right time.

One would recall that by virtue of the provisions of Section 147 (1) (2) and (3) of the Constitution, the President of the Federal Republic of Nigeria is mandated to appoint a Minister from each of the 36 states of the Federation. The said Section 147 (1) (2) and (3) provides;

“(1) There shall be such offices of Minister of the Government of
the Federation as may be established by the President.
(2) Any appointment to the office of Minister of the Government of the Federation shall, if the nomination of any person to such office is confirmed by the Senate, be made by the President.

(3) Any appointment under subsection (2) of this section by the President shall be in conformity with the provisions of section 14 (3) of this Constitution: –

Provided that in giving effect to the provisions aforesaid the President shall appoint at least one Minister from each State, who shall be an indigence of such State.”

In practice however, apart from appointing 36 ministers as provided by law, the President has the luxury of going the extra mile to appoint a minister from each of the six (6) geo-political zones of the country. Thereby making a total of at least 42 ministers.

It is said that what is good for the goose is good for the gander. The Supreme Court should not be an exception in this regard. It may not be able to have more than 22 justices but at least it should have up to that number at every point in time. This will correct the current and persistent anomaly and guarantee better and more efficient dispensation of justice by the Court.

Moses A. Ebute, Esq., Principal Partner, M. A. Ebute & Co.