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Supreme Court of Nigeria

LEGAL SCRUTINY OF THE PROPOSED SUPREME COURT ALTERATION BILL 2020 (SCAB)

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INTRODUCTION

The Supreme Court of Nigeria is the apex Court in Nigeria. Formerly, appeals from the then Federal Supreme Court went to the Judicial Committee of the Privy Council in England,but in 1963 such practices were abolished,consequently, the Supreme Court of Nigeria became the highest court in Nigeria.

Although the Supreme Court of Nigeria is the highest court, nevertheless, the Court has both original and appellate jurisdictions as it has the sole authority and jurisdiction to entertain appeals from the Court of Appeal. Also, decisions delivered by the court are binding on all courts in Nigeria.

In its current form, the establishment, composition, constitution and jurisdiction of the Supreme Court of Nigeria, is shaped by the extant provisions of the Supreme Court Act and by Chapter VII of the 1999 Constitution of Nigeria (as amended).The need to reposition the apex court for more effective service delivery has necessitated the reevaluation of the extant laws on the system, structure and composition of the court.

Presently, there is a Bill, known as the Supreme Court Alteration Bill 2020 (hereinafter referred to as “SCAB”), which seeks to alter Section 6(5) and Chapter VII of the Constitution of the Federal Republic of Nigeria 1999 (as amended)[1] (hereinafter referred to as the “Constitution”). The prime substance of the Bill (SCAB) is to alter the jurisdiction of the Supreme Court and to create a Federal and State Courts of Appeal, thus, changing the judicature system as presently structured. It is therefore the aim of this paper to critically examine the SCAB Bill vis-à-vis its intended benefits with a view to making practical recommendations on its proposed applicability in the judicial system in Nigeria.

BACKGROUND OVERVIEW OF THE SCAB PROPOSED BILL

A careful perusal of the explanatory memorandum of the proposed Bill highlights the issues the Bill seeks to address. These key issues the Bill focuses on are the jurisdiction of the Supreme Court and the Court of Appeal. The Bill also has implications for the appellate processes of other courts in the hierarchy of courts as elaborated in Section 6(5) of the Constitution (other than the Supreme Court and the Court of Appeal).

The major amendments as proposed by the SCAB are as follows:

  1. An alteration of the enumeration of the superior courts of records as prescribed in Section 6(5) of the 1999 Constitution (as amended). The proposed Section is altered by renaming the existing Court of Appeal as the “Federal Court of Appeal”. This proposed amendment leads the way for other alterations proposed in the amended Bill to follow.

For the purpose of clarity, the said section 6(5) of the Constitution provides thus-

Section 6(1) the judicial powers of the federation shall be vested in the courts to which this section relates, being courts established for the federation.

Section 6(5) this section relates to

  1. The Supreme Court of Nigeria
  2. The Court of Appeal
  3. The Federal High Court
  4. The High Court of the Capital Territory, Abuja
  5. A High Court of a State
  6. The Sharia Court of Appeal of the Federal Capital Territory, Abuja
  7. The Sharia Court of Appeal of a State
  8. The Customary Court of Appeal of the Federal Capital Territory, Abuja
  9. The Customary Court of Appeal of a State[2]

The proposed amended Section 6(5) of the SCAB introduces two new Superior Courts of Record to be known as:

  1. The Court of Appeal of the Federal Capital Territory, Abuja and
  2. The Court of Appeal of a State.

2. By Section 230 (2) of the proposed Bill, the Constitution would be altered to make it mandatory for at least two Justices of the Supreme Court to be Senior Advocates of Nigeria. It also provided that one of the Justices to be appointed as a Supreme Court Justice, must be a Professor of Law, with proficiency in Constitutional Law.

The current Section 230(2) of the Constitution simply provided that-

The Supreme Court of Nigeria shall consist of

  1. The chief justice of Nigeria; and
  2. Such number of justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.[3]

3. Section 233(1) of the Bill proposes a Federal Court of Appeal. It is proposed that this court shall be the only court from where appeals will lie to the Supreme Court of Nigeria (just as what we have presently, the Court of Appeal).

What is stated in Section 233(1) of the Constitution currently is that the Supreme Court shall have the jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.

4. Section 233(2) of the proposed amendment of the Constitution highlights the scope of the appellate jurisdiction of the Supreme Court. The proposed jurisdiction is limited basically to constitutional matters, fundamental rights enforcement, criminal matters involving death sentence and cases bordering on election into the office of the President or Vice President.

Whereas in the Constitution currently, Section 233 (2) dealing with the appellate jurisdiction of the Supreme Court in addition to what is stated in the Bill, covers matters such as; appeals involving questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal, decisions on questions as to the interpretation or application of the Constitution, whether any person has been validly elected to the office of the Governor or Deputy Governor, whether the term of office of the Governor or Deputy Governor has ceased or become vacant, such other cases as may be prescribed by an Act of the National Assembly.

5. Section 233(2) of the Bill provides that matters found therein shall not lie to the Supreme Court as of right, but with the leave of the Supreme Court. Whereas, under the current judicature stipulated in the Constitution particularly under the said section 233(2), the matters contain therein, lie as of right to the Supreme Court.

6. The proposed Bill also proposes to increase the number of Justices of the Supreme Court empanelled to preside over matters from five (5) to nine (9) justices. However, when an application for leave to appeal to the Supreme Court is to be considered, only five justices may preside over such matter.

Under section 234 of the Constitution, the prescribed number of justices required to form a quorum for the purpose of exercising its appellate jurisdiction is five (5), while for the purpose of exercising its original jurisdiction or determining appeals relating to the interpretation or application of the Constitution, or questions as to whether any of the provisions of Chapter IV of the Constitution has been contravened, seven (7) justices are required to properly constitute the court.

7. Section 237 of the Bill provides for the Federal Court of Appeal to consist of ninety-nine Justices.  A minimum of at least five of these Justices must be Senior Advocates of Nigeria and a minimum of another five must be Professors of Law.

However, Section 237 of the Constitution which established the Court of Appeal, prescribed that there shall be a president of the Court of Appeal and such number of justices not less than forty-nine (49), of which not less than three shall be learned in Islamic personal law, and not less than three be learned in customary law.

8. Interestingly by Section 241(1) and (2) of the Bill, the jurisdiction of the proposed Federal Court of Appeal is strictly limited to constitutional matters, fundamental rights enforcement matters, criminal matters involving death sentence and matters relating to the office of a Governor of a State and pre-election appeal. It is safe to say that the proposed Federal Court of Appeal will operate in the form of a specialized court established to entertain only specific matters.

Section 241 of the Constitution presently provides for matters that can lie from the Federal High Court to the Court of Appeal as of right.

9. By section 242 (3) of the Bill, the proposed Federal Court of Appeal will be a final court in relation to election petitions in respect of the office of the Governor of a state. This proposed provision in the SCAB has no similitude under the current Constitutional regime.

10. Section 242 (4) of the Bill provides that the proposed Federal Court of Appeal will be the final court with respect to appeals against any judgment and ruling of the Federal High Court, Court of Appeal of the Federal Capital Territory and the Court of Appeal of a State with respect to matters stated therein. This is also a novel provision in the SCAB.

11. Sections 245 and 249 of the proposed Bill establishes the Court of Appeal of the Federal Capital Territory and that of the different states of the federation. This court like the extant Court of Appeal, will have the inherent jurisdiction to entertain all appeals from the High Court of every state and that of the Federal Capital Territory. This is another novel provision in the SCAB.

The key thing worthy of note here is the fact that appeals from the proposed State Court of Appeal will lie directly to the proposed Federal Court of Appeal and not the Supreme Court. Notwithstanding that the proposed Federal Court of Appeal is to be structured in such a way that it will hear and determine appeals within 180 days after same is entered, it is tempting to conclude that in some instances, it will assume the position of the Supreme Court by being a final appellate court.

INTENDED BENEFITS OF THE SCAB

  1. There is the possibility of the decongestion of courts.
  2. Possibility of having expeditious trials.
  3. Considerable latitude of job creation within the judicial sector.
  4. Possibility of discarding frivolous interlocutory appeals.
  5. Creation of more Superior Courts of Records to foster the dispensation of justice.

LEGAL ANALYSIS/COMMENTARIES ON THE HIGHLIGHTED PROPOSED AMENDMENT SECTIONS OF SCAB

After a thorough review of the intrinsic provisions of the proposed SCAB, it is pertinent at this juncture to examine the essential issues the proposed amendment has thrown up. Commentaries will be imputed bearing in mind the present provisions of the Constitution in existence, while juxtaposing same with the proposed amendment of the futurity Bill vis-à-vis our current judicature regime and its inherent backlogs.

  1. NARROW NATURE OF THE PROPOSED BILL.

While it is highly commendable that the Supreme Court will be decongested to aid the expeditious hearing of cases. However, we submit that the object of the proposed amendment is too narrow. This is because the Bill focuses mainly on appellate matters while failing to take cognizance of some inherent matters facing some courts of first instance. As initially stated above, there is no doubt that the Bill has its full focus on Superior Courts of Record (particularly the present Supreme Court and the Court of Appeal).

It can be deduced from the Bill that its major aim is to decongest/shield the Supreme Court from the litany of appellate cases, but it has failed to take into consideration the fact that these cases emanate from the lower courts. These lower courts no doubt are already congested with cases despite the creation of multi-door court houses. The proposed amendment appears not to take into consideration the ordeal of these courts of first instance that undergoes the rigorous processes of full trials. Rather, it focused more on the Superior Courts of Record by providing a way forward to ease some of their presumed burdens but makes no real structural changes, thus leaving other superior courts of record to their fundamental issue of congestion to deal with this problem. The SCAB poses the question of why the proposed amendment if it does not effectively address the inherent issues of our current judicature?

Furthermore, it is also an inherent fear that all manner of appeals might still find their way to the Supreme Court under the guise of being a fundamental right matter or that which involves some allegation of a breach of a person’s fundamental right.

2. UNNECESSARY DELAY IN THE DETERMINATION OF CASES

A careful construction of the proposed amendment showcases the fact that it has escalated the appellate process for certain matters (e.g. constitutional and criminal appeals involving death sentence). This is because such appeals will have to pass through the State High Court, the existing Court Of Appeal, the proposed Federal Court of Appeal and the Supreme Court to obtain a final determination of such cases making it a tripartite process of appeals. This is indeed worrisome as litigants are already weary with the cumbersome process of litigation.

Justice delayed no doubt is justice denied.[4] Many litigants have casted doubts on our machinery of the administration of justice in Nigeria. The creation of more layers in the justice delivery food chain is no doubt a major setback for our judicial system.

3. OVER CONGESTION OF THE FEDERAL COURT OF APPEAL

Under the regime of the Bill, the proposed Federal Court of Appeal no doubt invariably assumes the position of the Supreme Court as the final court of appeal in some instances. However, where the proposed Federal Court of Appeal does not assume such jurisdiction, it is expected to hear appeals from the following courts:

  1. The Court of Appeal of the Federal Capital Territory
  2. The Court of Appeal of all 36 states of the federation
  3. The Customary court of Appeal
  4. The Federal High Courts in all 36 states of the federation
  5. The National Industrial Courts
  6. The High Court of the 36 States of the federation (in the enforcement of the fundamental rights actions and constitutional matters
  7. Professional bodies (such as the Legal Practitioners Disciplinary Committee).

4. LIKELIHOOD OFCONFLICT IN THE INTERPRETATION OF KEY CONSTITUTIONAL SECTIONS

There is a likelihood of conflict between some sections of the Bill. Section 241(1) of the proposed amendment to the Constitution provides that matters on which appeals will lie to the proposed Federal Court of Appeal shall include “such other cases as may be prescribed by an Act of the National Assembly.”

Ordinarily, while interpreting this section, it can be argued that the said section naturally covers cases emanating from Court Martials as provided for under Section 183 of the Armed Forced Act[5] and the Medical and Dental Practitioners Act under Section 16(6).[6]

However, these laws as of today, make reference to the present Court of Appeal as the court where an appeal can lie to and not the proposed Federal Court of Appeal. By necessary implication and to avert any foreseeable conflict, it appears to us that laws with similar provisions will have to be equally amended to reflect the actual position of the law bearing in mind the provisions of the Bill except a provision in the Bill incorporates these laws by reference in relation to the appellate process. The proposed amendment to be effected is certainly silent on this issue and several others that might follow, and if not properly addressed, will occasion miscarriage of justice or delayed justice.

It is also pertinent to point out that Section 12(5) of the Legal Practitioners Act[7] provides that appeals against the directions given by the Appeals Committee of the Body of Benchers should be lodged at the Supreme Court. The proposed amendment failed to take cognizance of this section as the amendment induces a limitative jurisdiction of the Supreme Court regarding constitutional matters, enforcement of fundamental rights, and criminal matters where a death sentence has been passed.

5. UNNECESSARY INFUSION OF PROCEDURAL ISSUES IN THE CONSTITUTION

The Constitution of the Federal Republic of Nigeria is the grundnorm. Being the grundnorm, it is from the Constitution that all other laws derive their validity and enforceability. The Constitution has been upheld, in a plethora of cases, to be a substantive law and not procedural law.[8]

A careful perusal of Section 286(5) of the Bill provides that where a matter is filed in the wrong court, it is the duty of the judge to transfer that matter to the appropriate court. This is a purely procedural matter which has been provided for in most rules of court.[9] Such procedural matters should not be infused into a substantive law such as the Constitution in other to avoid technicalities or complexity.

6. RIGHT OF APPEAL AND INTERLOCUTORY APPLICATIONS

It is now part of our reality within the judicature that going through a rigorous process of obtaining justice is not just the norm, but also unnecessarily prolonged without just cause.

Most often than not, this prolonged trials are triggered by unnecessary interlocutory appeals usually filed by an aggrieved party, under the umbrella of “right of appeal”.

It is a time-honoured aphorism that justice delayed is justice denied.[10] The delay in getting justice is usually initiated through various applications and counter applications that take ages to resolve even when the substantive issue in dispute is yet to be decided. Sadly, despite the fact that this is a crucial issue that need to be addressed, the Bill has failed to address the issue. Worse still, while an appeal is entered in the appellate court, the appellant may bring an application to stay proceeding in the substantive dispute pending the outcome of the appeal in other not to render the anticipated favourable judgment nugatory.

This was the case in Amadi v. NNPC[11]Uwais CJN (as he then was)

While lamenting the negative effect of such practice on our judicial system stated that;

“With the success of the plaintiff’s appeal before us, the case is to be sent back to the High Court to be determined, hopefully on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on merit in the proceedings as the case might be.”[12]

Although in the Bill, it is proposed that appeals will be heard within 180 days after being entered at the proposed Court of Appeal of a state (which we seriously doubt the feasibility of such considering the constant congestions the courts are experiencing), the mere opportunity of encouraging the filing of such appeals can serve as a hindrance to the possibility of expeditious trials.

7. LACK OF REDRESS IN APPEALS EMANATING FROM LOWER COURTS

The proposed SCAB as pointed out earlier focuses more on the Supreme Court with the intent of easing their burden. The Bill also provides that some appeals emanating from lower courts will be heard by the Supreme Court but they will not be as of right but with the leave of the court.

Furthermore, the Bill provides that the leave of court is to be granted at the sole discretion of the court without the need for any oral adumbration of arguments by counsel. In other words, appeals are to be determined by the court by construing the arguments therein to determine the merit of the appeals. If the court finds that such an appeal is frivolous, it is to discard same without the need to further waste the time of the court.

While this is a commendable development, it will be more effective if same practice can be extended to other Superior Courts of Record with appellate jurisdiction. The sole focus should not the on the Supreme Court as this might cause a stir flowing from the proposed amendment and raises difficult posers as well.

RECOMMENDATIONS

There is no doubt that there is no perfect law. However, in drafting a proposed enactment, the draftsman should avert his mind to loopholes in an existing law. The legislature also has to be meticulous and take into consideration practical implications of such a proposed enactment to ensure that the mischief is cured and the loopholes are filled.

Flowing from our analysis of the proposed SCAB vis-à-vis the enumerated potential loopholes, below are some proposed recommendations to close the impending lacuna that may arise with the passage of the Bill into law.

  1. The proposed tripartite process of obtaining justice at the appellate level should be expunged. This is to ensure that some appeals touching fundamental rights and criminal appeals involving death sentence should go directly to the Supreme Court from the proposed State Court of Appeals. This is to divert the unnecessary prolong essential nature of litigation.

2. The proposed Federal Court of Appeal should be a special court with specialized units (just like the Lagos State Sexual Offences Court) to hear and determine certain matters so as to decongest the court.

3. The SCAB should be implemented with the legislature taking proper cognizance of other existing legislations (e.g. The Medical and Dental Practitioners Act, Legal Practitioners Act etc.) in order to avoid potential conflicts.

4. The SCAB should also be implemented bearing in mind that the Constitution is a substantive (and not a procedural) law. Procedural matters should be expressly left for the rules of each court to handle.

5. The issue of right to appeal pending the final determination of the suit should be properly addressed. Leave to appeal as proposed to be applied by the Supreme Court, wherein the court considers the application without the necessary oral adumbration, should be applicable to all courts. It should not be reserved for only the Supreme Court. This will aid in checkmating frivolous interlocutory appeals and discarding same expeditiously without unnecessarily wasting the time of the court.

6. Decisions in interlocutory appeals should be given together with the final judgment of a suit. This should be made applicable to every Superior Court of Record.

7. Each state should have its own Supreme Court with its judicature established therein, thereby decentralizing the Supreme Court. However, we propose that there should only be one Supreme Court of the Federation (just like we have the present Court of Appeal and the Federal High Court).

8. If the above recommendation is accepted, then the appointment of more judicial officers to man State Supreme Courts becomes imperative. This will not only give room for job opportunities for those aspiring to join the Bench, but will also aid the elevation of some judicial officers. Such a move will also give an edge to our judicial system with respect to expeditious trials.

9. The age of retirement as contained in the Constitution[13]should be increased to 80 years but made to apply in individual cases depending on the capacity of each judicial officer. This is because some of these judicial officers still have more to offer the nation.

CONCLUSION

While the proposed amendment of the Constitution is a welcome development, the exercise must be done bearing in mind the various lacunae presently noted in the Constitution. The proposed amendments should address key issues facing the judiciary in all spheres and not just a secluded sub-sector of the judiciary.

While we hope that the SCAB will stretch itself to provide near-adequate positive solutions to issues rocking the judicature, it is also hoped that the SCAB will be all encompassing, taking into reasonable consideration all Superior Courts of Records in Nigeria.

By: Eze Nneka Oduada Esq.

Disclaimer:  This article is intended only to provide general information and does not by itself constitute or serve as legal advice. For further information, we are available to provide detailed legal advice. For more information contact us on info@asalawpractice.org or call 09084820000, 08067498777.

[1]  Constitution of the Federal Republic of Nigeria, 1999, (3rd and 4th alteration, as amended) Cap C23, Laws of the Federation of Nigeria, 2004.

[2] Constitution of the Federal Republic of Nigeria, 1999,(3rd and 4th alteration, as amended) Cap C23, Laws of the Federation of Nigeria, 2004.

[3] Supra

[4] PDP v. Abubakar (No. 1) (2007) All FWLR (Pt 386) 697 @ 709 Paras F-G (CA)

[5] Armed Forces Act, Cap A20, Laws of the Federation of Nigeria, 2004

[6] Medical and Dental Practitioners Act, Cap M8, Laws of the Federation of Nigeria, 2004

[7] Legal Practitioners Act, Cap L11, Laws of the Federation of Nigeria, 2004

[8] F.C.D.A v. Ezinkwo (2007) All FWLR (Pt. 393) 95@115, Paras C-D, Federal Republic of Nigeria v. Osahon (2006) 5NWLR (Pt. 973) Pg. 361.

[9] Section 22 of the Federal High Court Act, Cap F12, Laws of the Federation of Nigeria, 2004

[10]OgliOko Memorial Farms Ltd & Anor v Nigeria Agricultural and Co-operative Bank Limited & Anor (2008) LPELR-2306(SC), FRN v. Lawan (2018) LPELR-43973 (CA), PDP v. Abubakar (No. 1) (2007) All FWLR (Pt 386) 697 @ 709 Paras F-G (CA)

[11] (2000)10 NWLR (Pt. 674) Pg. 76

[12] Supra

[13] Section 291 of the Constitution of the Federal Republic of Nigeria, 1999, (3rd and 4th alteration, as amended) Cap C23, Laws of the Federation of Nigeria, 2004.

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