Akeem Nafiu 
“As the saying goes, justice delayed is justice being denied. I don’t see any reason why there should be any impediment in appointing more Justices to the Supreme Court. “I hope that it will be sorted out very soon because now we have the election petition, and they would require seven of the Justices. I don’t see how they can run normally with that number when there are other matters to be adjudicated upon. So, it is just going to cause a delay in the dispensation of justice”, one of them said. Another one said: “With the depletion in the number of Justices, the CJN should comply with the constitutional requirement of 21 Justices. The vacant seats, in my humble view, should be filled so that we can have a speedy dispensation of justice in the country”. The above quotes were part of submissions by some senior lawyers while sharing their thoughts on the negative impacts the further depletion in the number of Justices at the Supreme Court will have on the justice delivery system. The lawyers spoke at the weekend on the heels of the retirement of Justice Amina Augie from the Supreme Court’s Bench, a situation that has further reduced the number of Justices at the apex court to eleven as against the constitutionally required twenty-one.
At a valedictory court session to mark her exit from the Bench after attaining the statutory retirement age of 70 years, Justice Augie, who was the sixth female Justice of the Supreme Court, called for a constitutional amendment that will restrict the apex court’s adjudication to policy issues. The retired jurist while lamenting the overwhelming caseload of Supreme Court’s Justices said the only way out is to amend the Constitution to restrict the circumstances under which appeals can reach the apex court. “This marks the final instance where my voice will be heard in any court and I wish to use this opportunity to directly address the 10th National Assembly, through the distinguished Senate President, Godswill Akpabio, who was once my student at the Law School. “I had the privilege of teaching him evidence and I trust that he learned well. Hence, it should be evident to him that swift action is needed from the 10th National Assembly to accomplish what others could not, amending the constitution to enhance the functioning of our courts in Nigeria,” Justice Augie said.
Speaking at the court session, the Attorney General of the Federation and Minister of Justice, Lateef Fagbemi (SAN), expressed Federal Government’s readiness to ensure that the Supreme Court is strengthened to attain the constitutional required number of Justices. Fagbemi said: “The President Bola Tinubu-led government shall guarantee excellent conditions of service and remunerations good enough to appreciate the onerous duties of judicial officers at all levels. “While we appreciate the urgency in reviewing the remuneration of judicial officers, which had not been done for over a decade, as an integral component of our judicial reforms, we are also appreciative of the greater goal of achieving true in dependence for the judiciary which can only be achieved through a comprehensive and sustainable reform process that requires attention to details”.
Constitutional provision for appointment to Supreme Court’s Bench In Section 231 (1) and (2), the Constitution provides that the appointment of Justices to the Supreme Court rests with the President of the Federal Republic of Nigeria on the recommendation of the National Judicial Council. This appointment is however subject to confirmation by the Senate. Besides, a person is only fit to be a Justice of the Supreme Court if he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years. Furthermore, the Constitution also provides for the composition of the court and for the persons eligible for appointment into the court. In Section 230 (2), the Constitution provides that the Supreme Court shall consist of the Chief Justice of Nigeria and such number of Justices not exceeding twenty-one, as may be prescribed by an Act of the National Assembly. To be properly constituted in the hearing of any case, the court shall consist of not less than five Justices.
However, the Supreme Court is only duly constituted when there are seven justices in any case where it exercises its original jurisdiction and where the nature of a case affects the fundamental rights of any person. Past attempt at filling Supreme Court’s Bench A former Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, had in January 2022 called for nominations to fill six vacancies on the Supreme Court Bench. At the time, the ex-CJN had in accordance with relevant rules sent out letters calling for nominations to fill the six slots to the Nigerian Bar Association (NBA), relevant judicial officers and heads of courts, among others. The CJN’s letter indicates that the six available slots are to be filled by nominees from five of Nigeria’s six geo-political zones. The zones with the number of slots allotted to each of them are: South-East – two (2); South-South – one (1); South-West – one (1); NorthCentral – one (1); and North-West – one (1). The call for nomination which was made at the time there were 17 Justices on the apex court’s Bench was reported to have been in anticipation of the imminent retirements of some of the existing Justices. However, nothing concrete came out of the exercise until the former CJN abruptly retired from the Supreme Court’s Bench in June 2022. New Telegraph Law findings revealed that in the last 16 months, the Supreme Court had lost about six Justices to either death or retirement.
It started with Justice Mary Peter-Odili who retired on May 13, 2022. Afterwards, it was the turn of Justice Ejembi Eko, who exited the Supreme Court’s Bench on May 23, 2022. A former Chief Justice of Nigeria (CJN), Tanko Muhammad, also left the Bench abruptly on June 27, 2022, while Justice Abdu Aboki also retired on August 5, 2022 after attaining the retirement age of 70 years. In a related but sad development, Justice Centus Chima Nweze passed away on 30th July, 2023 at the age of 64 years after a brief illness. The demise of Justice Nweze was followed by the retirement of Justice Amina Augie from the Supreme Court’s Bench on September 21, 2023. This has consequently reduced the number of Justices at the apex court to eleven. They are: Justice Kayode Ariwoola; Justice Musa Dajitto Muhammad; Justice Kudirat Kekere-Ekun; Justice John Inyang Okoro; Justice Uwana Abba Aji; Justice Lawal Garba; Justice Ibrahim Mohammed Saulawa; Justice Adamu Jauro; Justice Tijani Abubakar, Justice Helen Morenikeji Ogunwumiju and Justice Emmanuel Agim. Lawyers speak Speaking on what the depletion in the number of justices at the Supreme Court portends for the justice delivery system, a Senior Advocate of Nigeria (SAN), Seyi Sowemimo, posited that if there are fewer hands at the apex court, cases would not move as fast as they ought to. Sowemimo said: “As the saying goes, justice delayed is justice being denied. I don’t see any reason why there should be any impediment in appointing more Justices to the Supreme Court. “We have a lot of competent hands that can be elevated to the Supreme Court. So, I don’t see why there is so much delay. Before now, we could have done that, but hopefully, the new president of Nigeria will ensure that the issue is sorted out.
“I hope that it will be sorted out very soon because now we have the election petition, and they would require seven of the Justices. I don’t see how they can run normally with that number when there are other matters to be adjudicated upon. So, it is just going to cause a delay in the dispensation of justice”. Speaking in the same vein, another member of the inner Bar, Chief Mike Ahamba, argued that Justice Augie’s retirement from the apex court’s Bench might create problems. He consequently charged the Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola, to come up with plans to substitute retired Justices of the apex court and bring the number of required Justices to the figures recognized by the Constitution. Another silk, Babajide Koku, noted that there is already a problem even with the current number of Supreme Court Justices in the country. While stating that there is a lot of congestion of cases before the Supreme Court and that cases have be come protracted, Koku maintained that both litigants and lawyers are suffering the consequences of not having the required number of Justices at the apex court.
“With the depletion in the number of Justices, the CJN should comply with the constitutional requirement of 21 Justices. The vacant seats, in my humble view, should be filled so that we can have a speedy dispensation of justice in the country”, Koku said On his part, Victor Okpara (SAN), regretted that the few Justices left behind at the Supreme Court will be overburdened and overworked because a job meant for twenty-one Justices will now be done by about ten Justices. Okpara said: “Appeals are not reducing, the appellate rights of people cannot be truncated on grounds of insufficient judges. “So, certainly, there will be law of diminishing returns. Once you have overworked somebody, you are not going to get a good result. “The truth also is that the judges are aware of this burden and am sure that in no distant future, the vacancies will certainly be filled up.
“But, you don’t need anyone to tell you that if constitutionally, the job meant for 21 people is now been done by 10 people, they will certainly be overburdened and will not produce the best in terms of justice delivery because you have to look at the health of the judges. “The Justices will only take on cases that they can afford to take, they cannot overwork themselves and if they cannot overwork themselves, that means they can only take the number of cases they can attend to. This will make other cases suffer unnecessary delays”. In his submissions, a rights activist, Timothy Adewale, noted that before the present depletion, the Justices of the Supreme Court were not up to the number recognized by the Constitution. He expressed sadness that the development had affected the wheel of justice in the country.
“What we can say is that it is like a clog in the wheel of justice dispensation in Nigeria. The wheel of justice is not evolving as it ought to be. For example, I have a case of 2015 before the Supreme Court that has not even come up once for mention. You can imagine what that portends for the administration of justice or for justice itself. “If since 2015, an appeal has been filed at the Supreme Court and that same case has not even been given a date for mention, you can imagine that. I dont think we need any further explanation to show what that will portend to a litigant. “I must also say that when people become discontent with the administration of justice system, they will put law into their hands”, Adewale said. In his own comments on the issue, a senior lawyer, Ubimago Stephen, called for the elevation of judges from the Court of Appeal to fill up the vacuum that has been created as a result of the retirement of Justice Augie at the Supreme Court Stephen said: “What we expect is that the elevation will necessarily take place. Ordinarily, we must have a minimum of five Supreme Court Justices sitting on appeal when an appeal comes from the Court of Appeal to the Supreme Court.
“So, even if the Constitution says you must have up to 21 when the court sits on appeal, the constitutional requirement is that there should be a minimum of five and at the Court of Appeal, it is a minimum of three. “There is no time the entire number of Justices in the Supreme Court will sit in respect of any matter. Usually, what happens is that the CJN will empanel the number of the constitutionally required number of five justices of the court to sit in respect of a matter. “The real issue, therefore, is if a matter is brought on appeal and the court is expected to sit and you have less than five judges or fewer than five Justices of the court, that is when the issue of fair hearing arises, the constitutional issue of not having a quorum to sit will arise”. In his reaction to what the depletion in the number of Justices in the Supreme Court portends for the justice delivery system in Nigeria due to the retirement of Justice Amina Augie from the Supreme Court’s Bench , Chuma A Onwuasoeze, who initially declined to speak on the depletion in the number of justices in the apex court, argued that, “Where there is justice, there is justice, and where there is no justice, there is no justice, even where there are more than 21 Justices of the Supreme Court. “How many Justices of the Supreme Court does the Gambia have? As of 2015/2016, many lawyers in Nigeria were taken to the Gambia to establish a better Supreme Court for the people of the Gambia. “And even before then, the Supreme Court of the Gambia was dispensing fairness and justice as it adjudicates on matters.
“So, I wouldn’t say the depletion has any effect, but rather, it delays the true dispensation of justice to those seeking to get justice and fairness from the Supreme Court of Nigeria. “For instance, if you want to get a date at the Supreme Court, or if your matter is coming from the Court of Appeal to the Supreme Court in 2023, you may be given a 2025 date at the Supreme Court”. Speaking on calls to have the Supreme Court split into divisions, Onwuasoeze expressed concern that it could lead to conflicts in judgements as could be seen in the various Appeal Courts where there are what he termed disgraceful conflicting judgements. “As lawyers, we are continually embarrassed by the scarcity of justice system and fairness. “While people who do not understand the law are looking at it from the layman’s perspective, justice should not only be done, but should be seen to have been done. “Unfortunately, when people look like the bystanders waiting to see that justice was served, those who are expected to ensure that justice is served would just wake up from nowhere and allow technicalities to prevail against the people”, he added. Onwuasoeze however called on judges to be courageous and bold to deliver justice the way it ought to be, and not be subjected to intimidation and bullying, adding that Nigeria does not need one hundred (100) Justices in the Supreme Court before true justice and fairness is dispensed to the people. In his comments, a senior lawyer, Ganiu Imran, while expressing sadness over the development, stated that the depletion in the number of justices at the apex court to 11 as against the constitutionally required 21, has grossly affected the administration of justice system in the country. “We have only one Supreme Court in Nigeria, and the Justices as we currently have are overburdened with a barrage of cases coming from the 36 states of the federation” Imran noted.