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Improving the efficiency of the judiciary 11 Oct 2022

The Senate on 21 September 2022 confirmed Hon. Justice Olukayode Ariwoola as Chief Justice of Nigeria (CJN) following his recommendation by the National Judicial Council (NJC) and nomination by President Muhammadu Buhari. Justice Ariwoola began to function in the role in an acting capacity on 27 June 2022 after the previous CJN, Hon. Justice Ibrahim Tanko Muhammad resigned on health grounds.

While answering questions during his screening before the Senate, the CJN highlighted several challenges faced by the Judiciary, especially the apex court, including inadequate funding, dwindling and insufficient number of justices, and the full docket of cases. The CJN in his comments regarding inadequate funding was reported to have asked the Senate to give expeditious approvals to the budgets of the Judiciary.

In order to tackle the challenges listed by the CJN, it is necessary for the executive arm of government to give full effect to the constitutional provisions guaranteeing the financial autonomy of the judiciary. The judiciary must not settle for expeditious approvals of its budget by the Senate, but it must continue to demand the direct payment of the monies standing to its credit in the Consolidated Revenue Fund to the Heads of the Courts concerned. Financial autonomy for the judiciary is a sine qua non to the independence and effectiveness of that arm of government.

The CJN, however, also highlighted an important action that must take place to increase the efficiency of our justice system – constitutional review and amendments. This current discourse seeks to highlight two major areas where the right constitutional amendments would make a huge difference in the systems and processes of the judiciary and greatly increase the efficiency of the system – subject matter jurisdiction and determination of number of justices of the Supreme Court.

One of the major factors affecting access to justice in Nigeria is the duration of determination of disputes in our courts. The fear of a court action is not enough to deter an obviously erring party. He can proceed with his wrong because as long as his constitutional right of appeal is still valid and he is inclined to explore – and in some cases exploit – the appellate process, he can reasonably expect, except for some matters like pre-election matters and election petitions, that it would take decade(s) for the matter to be fully and finally determined by the Supreme Court. If he or she is knowledgeable about court procedure or engages a lawyer who is willing to help him or her buy the time to escape justice, there could be multiple trips to the Supreme Court on interlocutory matters in the suit.

The CJN in his answers to the Senate suggested a constitutional amendment to review the kind of matters that are heard by the Supreme Court. This is a very prudent recommendation. The Supreme Court has original and appellate subject-matter jurisdiction. Disputes between the Federation and a state or between states are heard directly by the Supreme Court in its original jurisdiction. This means that such matters are filed at and determined only by the Supreme Court, being the apex and ultimate court in Nigeria, without any further process of appeal. The appellate jurisdiction of the Supreme Court, however, as it currently stands, is too wide.

It is important to state that the appellate system is a defining feature of an independent and impartial judiciary and thus a cornerstone of our judicial system. Litigants who are dissatisfied with the outcome of their cases at the court of first instance, i.e., the trial court, can appeal for a review of the record for possible errors. Admittedly, judges being human beings are fallible; the appeal process presents itself as an error correction process for the judiciary.  It thus is able to promote public trust and confidence in the justice system, as litigants are confident that deliberate or careless ‘errors’ made in the course of a matter can be corrected. The appellate process also enhances judicial accountability and is the process by which we establish judicial precedents, principles of law and legal doctrines in our jurisprudence. All of these benefits can, however, be quickly eroded by overburdened appellate courts.

Our current appellate system is unwieldy, greatly inefficient, and is capable of causing greater injustice to litigants by the delays currently clogging the system. The Supreme Court’s appellate jurisdiction covers appeals from the Court of Appeal in any civil or criminal proceedings involving questions of law alone, decisions relating to the interpretation or application of the Constitution, decisions on provisions relating to fundamental rights, and decisions in any criminal proceedings in which a person has been sentenced to death.

Except for some matters where the Court of Appeal is designated as the final court, the appellate jurisdiction of the Supreme Court covers just about any subject matter or cause of action as long as it involves questions of law alone. The matters where the Court of Appeal is designated as the final court for adjudication include civil cases from the National Industrial Court and appeals from the National and State Houses of Assembly Election Tribunals. Aside from the exempted subject matters, litigants in every other matter can approach the Supreme Court.

The Court of Appeal, being the penultimate superior court of record in Nigeria hears and determines appeals from all the superior courts of record - the Federal High court; the High Court of the Federal Capital Territory, Abuja; High Court of the states; sharia Court of Appeal of the Federal Capital Territory, Abuja; Sharia Court of Appeal of the states; Customary Court of Appeal of the Federal Capital Territory, Abuja; and Customary Court of Appeal of the states. The Court also hears and determines appeals from decisions of court martials and other statutory tribunals created by certain Acts of the National Assembly such as the Tax Appeal Tribunals and tribunals created under the Armed Forces Act, Institute of Chartered Accountants of Nigeria Act, and Medical and Dental Practitioners Act. Thus, in most of these cases, a further appeal can be filed at the Supreme Court. This is in addition to cases on questions as to the valid election, cessation, or vacancy of the offices of president or vice-president, governor or deputy-governor, which is heard directly by the Court of Appeal in its original jurisdiction with the Supreme Court exercising appellate jurisdiction.

It is important to note that a number of the courts of superior record listed above are not only courts of first instance but have appellate jurisdictions themselves over decisions of lower courts and tribunals such as magistrate courts, customary courts, sharia courts and rent tribunals. One can then imagine the impact of otherwise simple magistrate court cases or for example simple tenancy matters instituted in rent tribunals in the applicable states travelling the entire spectrum of the hierarchy of courts – appeal to the relevant High Court with jurisdiction, then to the Court of Appeal before the final appeal to the Supreme Court.

A constitutional amendment is required to shorten the appellate process of some of these cases. For example, the subject matters covered by the jurisdiction of magistrate and customary courts can on appeal be adequately dealt with at the High Court level and at most to the Court of Appeal on issues of law. This would make for greater efficiency without diminishing the value of the appellate process in these kinds of matters.

The second constitutional amendment recommended in the current discourse is the provisions on the composition of the justices of the Supreme Court. The Supreme Court of Nigeria constitutionally consists of the CJN and such number of justices, not exceeding twenty-one, as may be prescribed by an act of the National Assembly. When contrasted with the language used with respect to the Court of Appeal, it is obvious that a review is necessary.

While the maximum number of justices of the Supreme Court is limited by the Constitution, it merely provides a minimum number for the Court of Appeal. The Court of Appeal constitutionally consists of the president of the court and “such number of Justices of the Court of Appeal, not less than forty-nine.” This makes room for appointment of more justices to meet current needs and demands without the rigour of a constitutional amendment. The Constitution also provides for the composition of the justices of the Court of Appeal to include a minimum number of three justices learned in Islamic personal law, and not less than three learned in customary law.

The Constitution ought to create a framework for the establishment of the organs, arms and structures of government. Details and the fine prints should be left to the enabling Acts, which are easier to amend when the need arises. The current constitutional number of justices of the Supreme Court cannot meet the current needs. The number of justices, however, not ought to be increased by a constitutional amendment. The Constitution ought to be amended to give room to an act of the National Assembly to determine the minimum number of justices.
Furthermore, a constitutional amendment on subject matter jurisdiction ought to empower the National Assembly to make laws through the enabling Acts of the courts to determine the minimum number of subject matter experts required in each appellate court, and this must go beyond Islamic personal law and customary law.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).