Decongesting The Supreme Court Of Nigeria

By Kenneth Okonkwo

The Supreme Court (SC) is the highest court in Nigeria. Its decision is final. Hundreds of thousands of cases lie in the SC for ages before even getting the attention of the court for consideration. Except election cases that are time bound, ordinary cases may take up to five years before even getting the opportunity to be heard by the court. Justice delayed is obviously justice denied because in some cases, some of the litigants do not even live to enjoy the fruit of their labour. I know of a case that spent 11 years at the High Court, 4 years at the Court of Appeal, and it’s preparing to head to the SC. Assuming it spends another 5 years at the SC, it then means that cases can linger more than 20 years before being resolved by the Nigeria judicial system and this is completely unacceptable in this modern world. Foreign businesses have avoided Nigeria because of the cumbersomeness of our judicial system. Indigenous companies have collapsed because of the untimely response of our judicial system to business disputes which are bound to arise in the day to day administration of businesses. We can’t continue like this.

This anomaly has caught the attention of practically every member of the society. It was gratifying to watch the Minister of Justice, Lateef Fagbemi, and the President of the Nigeria Bar Association (NBA), Yakubu Maikyau, come together recently to commence the process of decongesting the Supreme Court.

The causes of the congestion are not far fetched. There’s no doubt that there may be some need for some amendments or enactment of laws to guarantee the decongestion of the court, but the court should guard itself from being assaulted with all manner of frivolous cases that are meant to achieve all sorts of aims apart from the quest for justice. A perusal of the extant laws will show that the SC has not helped itself in shielding itself from frivolous cases. Other courts of the same powers in other jurisdictions had done a lot much better in this regard than our SC. In United States of America for instance, whenever a litigant comes to SC on a matter that he doesn’t have the power to appeal as of right, one Justice of the Court can look at the case to determine whether the case is even qualified to come before the court. If the Justice so determines and convinces other Justices of the court, the Court can deliver the judgment just in two words, “access denied”, and that’s the end of the case.

About more than 3/4 of all the cases pending at our SC are not there by right. They must require the consent of the SC to be allowed to be heard in the court. The Constitution stipulates in Section 233 that an appeal shall lie from decisions of the Court of Appeal to the SC as of right where the ground of appeal involves questions of law alone; questions as to the interpretation or application of the Constitution; questions as to whether any of the provisions of Chapter IV (Human Rights) of this Constitution has been, is being or is likely to be, contravened in relation to any person; decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court; decisions on any question whether any person has been validly elected to the office of or whether the term of office to the office of President or Vice-President, Governor or Deputy Governor, has ceased or become vacant. Any other issue, apart from these, requires the consent of the SC to be allowed to appear before it.

Our SC has even evolved some precedents that can be helpful in decongesting the court. One powerful precedent by the court is that the court is always reluctant to upturn any unanimous judgement by the trial court and appeal court except the judgement is perverse and, prima facie, was held in contrary to the law. With this precedent, the court can classify the cases before it into three: cases that had unanimous judgement by the two lower courts; cases that had different judgements between the trial court and the appeal court; cases that come to it by right. The first category should be consigned to a judge who will look at the judgement of the court of appeal and the notice of appeal to the SC. If there’s no recondite issue of law raised in the notice of appeal and the judgement followed well established, non-controversial precedents, the judge should recommend a refusal of access to the court, and if the justices agree with the judge, the case is ended at that stage.

In the second scenario, the single judge will determine what caused the difference in the judgement between the two lower courts and suggest whether the trial court or the court of appeal was right. If the court of appeal was right, the Supreme Court should also deny access to the appellant. But if the trial court was right, a full court should be constituted to hear the case to overule the judgement of the court of appeal. The appeals that are of right don’t need to be consigned to a judge. The full compliment of judges should just sit and expeditiously determine the case and settle it. Since most of them involve the interpretation of the laws and Constitution, they require short periods to conclude the case.

The court must realise that the reason Nigeria litigants embark on expeditious appeals to the highest court even when they know that they do not have any good case is the impression some of their corrupt legal advisers give them that they can always find some willing judges at the apex court to compromise in order to obtain dubious judgements. In fairness to some of those corrupt lawyers, they will point at some questionable judgements of the SC, like disqualifying Bashir Machina who legitimately won a senatorial primary election and qualifying a Senator Lawan, who did not even participate in the primary election, to represent his party in the general election. If the SC will purge itself of every questionable judgement, the volume of the cases before it will reduce by half, because it will be difficult for corrupt lawyers to convince their clients that they can bribe the SC Justices to obtain judgements which the clients know is impossible except the judges are compromised.

Another unfortunate reason lawyers bring frivolous cases before the SC, even when their clients refuse to pay them is to use the appearances as qualifying criteria for the award of the prestigious position of a Senior Advocate of Nigeria (SAN). In guideline 3(7)(1) of the qualification for the position of SAN, every candidate is required to provide particulars of 10 contested cases that the applicant considers to be of particular complexity, difficulty or sensitivity handled in superior courts or before an arbitrator. He doesn’t need to win those cases. Among the 10 cases that would be provided, 3 shall be cases decided by the Supreme Court; 3 by court of appeal; and 4 by the High Court. This requirement instigates frivolous cases by some desperate lawyers who want to attain the rank of SAN by hook or crook. In other jurisdictions, lawyers specialise in different fields of law. Appellate proceedings is one specialised area of law which lawyers embark in. Some lawyers specialise on trial courts proceedings. This criterion has compelled every lawyer in Nigeria not to specialise in specific fields. They need to engage in every field to be able to have enough cases to present for their qualification for SAN. This requirement should be removed immediately and the award of SAN should be based on quality of the achievement of the Lawyer in his chosen field of specialisation, not on whether he has presented 3 cases before the SC. Lawyers should allow the SC to breathe and not choke it with frivolous cases intended only to satisfy the requirement to become a SAN.

The SC has also not done enough to safeguard the restriction imposed on persons by the Constitution in accessing its original jurisdiction. The whole idea of restricting legal persons to access the original jurisdiction of the SC is to ensure that all manner of cases are filtered before landing on the court to avoid congestion. Recently the SC assumed original jurisdiction, according to it, based on public policy, to entertain a suit brought by some disgruntled state governments, purportedly on behalf of their citizens, to halt the naira redesign exercise embarked on by the Federal Government, on the spurious excuse that their citizens were suffering, but the real reason was that politicians were suffering from cash crunch as a result of the policy, with which they intended to use to buy votes during the 2023 general election. The issue of currency management is under the exclusive legislative competence of the FG and the states have no business interfering with it. Also the state can only invoke the original jurisdiction of the SC on matters that concern its own rights as a juristic person not on behalf of any citizen. Citizens have direct access to trial courts to ventillate their rights, not accessing the SC through their state governments which are using them to settle political scores not advancing their economic or social interests. Why have the state governments not gone to SC, on behalf of their citizens, to invoke the original jurisdiction of the SC to stop the suffering of their people on the astronomical increase in electricity tariff, removal of oil subsidy, insecurity, etc, or have the citizens not suffered enough? The truth is that the SC has no original jurisdiction to entertain such matters. While the legislature should make laws to assist in decongesting the SC, the SC should help itself in decongesting itself. No amount of legislative intervention can help the SC if it doesn’t have the judicial will to help itself. After all, the court has now erroneously established a precedent that it can assume original jurisdiction in any case based on public policy not based on extant laws.