There is nowhere in the public service in Nigeria where vacancy positions are kept for long before replacement more than the Supreme Court bench. Perhaps, it has also witnessed the highest turn-over of leadership; with four Chief Justices exchanging hands within a decade. Most Justices are appointed into the Supreme Court bench at the twilight of their careers, say 2,3, 4, or 5 years to mandatory age of retirement at 70 years.
Take for instance, since the Supreme Court of Canada was established in 1875, only 18 persons have so far served as Chief Justice at the retirement age of 75 years. Justice Beverley McLachlin who retired in 2017 served for 17 years, 341 days, while that country’s current Chief Justice, Justice Richard Wagner shall serve for 15 years and retires in 2032.
The last time President Muhammadu Buhari appointed a justice for the Supreme Court Bench was in January 2019. That was the appointment of Justice Uwani Musa Abba-Aji who the former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, swore-in as a Justice of the Supreme Court on January 9, 2019.
Justice Abba-Aji replaced Justice Clara Bata Ogunbiyi who retired on February 27, 2018 on attainment of 70 years mandatory retirement age as a Supreme Court Justice.
NJC recommended Justice Abba-Aji as replacement for Justice Ogunbiyi on October 5, 2018, while President Buhari requested the Senate for Justice Abba-Aji’s confirmation on December 6, 2018.
In the President Buhari’s letter which was read by the then Senate President Bukola Saraki at the plenary, he said the appointment was according to the advice of the NJC. “In line with 1999 constitution upon the advice of the National Judicial Council, I hereby refer for confirmation the appointment of Justice Musa Abba-Aji as the Justice of the Supreme Court of Nigeria. While hoping that this is expeditiously considered by the Senate, accept the assurances of my highest regard,” the letter read.
However, Saraki, praised the members of the senate committee for their swift legislative treatment/consideration judging by the fact that the request came from the executive on December 6, 2019 and urged other arms of government to replicate such effectiveness.
“Let me also commend our members; we received this communication from the president on December 6, 2019 and today, December 20, 2019, we have treated this matter and showed our view on how important it is to ensure that the Judiciary is functional and efficient,” Saraki said.
“I hope that the Judiciary and Executive will take a cue from this and improve on the time frame to ensure that we do not delay in replacing our Justices who are newly retired,” he added.
Since Justice Abba-Aji was appointed in January 2019 to make up the 17th on the apex court bench, five other Justices thereafter have retired or resigned at the Supreme Court and also yet to be replaced.
First was Justice Sidi Dauda Bage who retired from the Supreme Court bench on March 26, 2019 to become emir of lafia, Nassarawa state.
President Buhari received former Chief Justice of Nigeria, Justice Walter Onoghen’s voluntary resignation letter which is effective from May 28, 2019.
By December 10, 2019, Justice Kumai Bayang Aka’ahs also retired from the Supreme Court’s Bench, while Justice Amiru Sanusi retired on February 3, 2020; just as Justice Paul Adamu Galinje bowed out on April 21, 2020, bringing the number of justices on the Supreme Court bench to 12 currently.
On June 9, 2019 when President Buhari formerly wrote to accept Justice Onnoghen’s resignation letter, the President also asked the then Acting Chief Justice of Nigeria, Justice Tanko Muhammad, to initiate the process of appointing four new justices of the Supreme Court.
The President’s decision was contained in a statement issued by his Senior Special Assistant on Media and Publicity, Garba Shehu.
The statement quoted Buhari’s letter thus, ‘‘Pursuant to the provisions of Section 230(2) A&B of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), I am pleased to request that you initiate in earnest the process of appointing additional four Justices of the Supreme Court of Nigeria to make the full complement of 21 Justices as provided by the aforementioned provisions of the Constitution.
‘‘This is in line with the government’s agenda of repositioning the Judiciary in general and Supreme Court in particular for greater efficiency, with a view to reducing the backlogs of appeals pending at the Supreme Court’’.
Consequently, the National Judicial Council had on October 24, 2019 recommended the appointment of Justices Adamu Jauro (North-East); Emmanuel A. Agim (South-South); C. Oseji (South-South); and Helen M. Ogunwumiju (South-West).The recommendations were sent to President Buhari who has the powers to appoint the justices after the senate confirmation.
But for more than eight months after the NJC’s recommendation, President Buhari is yet to act on it, neither has he requested the senate for confirmation.
In a letter dated June 9, 2020, the activist lawyer, Femi Falana (SAN) publically wrote urging President Buhari to urgently ratify NJC recommendation because of the shortfall in the apex court number of justices.
According to Falana, ‘’But for reasons best known to Your Excellency the names of the 4 Justices have not been forwarded to the Senate for confirmation as required by Section 231(2) of the 1999 Constitution as amended.
‘’However, it may interest Your Excellency to know that the number of Justices on the Supreme Court bench has been depleted to 12 contrary to Section 230 (2) (b) of the 1999 Constitution (as amended) which stipulates that the Supreme Court of Nigeria “shall consist of such number of Justices not exceeding 21 as may be prescribed by an Act of the National Assembly.”
‘’The need to ratify and forward the names of these Justices to the Senate for confirmation becomes more crucial and urgent if viewed against the backdrop of the clamour for prison decongestion being championed by Your Excellency.
‘’ Just last month, Your Excellency forwarded a letter to the Chief Justice of Nigeria requesting that measures be taken by the judiciary to decongest prisons and detention facilities across the country amid the COVID-19 pandemic.
‘’From the information at our disposal, one of the main causes of prison congestion is that the Supreme Court has not been able to hear and determine many criminal appeals due to lack of enough Justices.
‘’ We are persuaded that Your Excellency would be furthering the cause of prison decongestion by expeditiously ratifying the names recommended by the NJC and forward same to the Senate for confirmation.
‘’ In other words, the workload and the number of civil and criminal appeals pending at the Supreme Court would be significantly reduced if the four Justices are appointed without any further delay’’.
Most of the total 240 prisons in Nigeria were 70 to 80 years old and lacked basic facilities such as potable water, inadequate sewage facilities, and severe overcrowding which often resulted in dangerous and unsanitary conditions. The 240 prisons were designed to hold 50,153 inmates, but recent statistics indicate that they held 73,995 prisoners. Agodi Minimum Security Prison in Oyo State for instance had 1,189 inmates despite a maximum capacity of 390. Besides, about 68% of inmates in the country were in pretrial detention or remanded.
These conditions are adversely related to protocol to keep prisoners stay safe and healthy under the COVID-19 pandemic regime. It is against this backdrop the President asked the CJN to take steps to decongest the prisons by deciding their cases expeditiously. But the President has at the same time tied CJN’s hands at his back by delaying to appoint the four justices of the apex court who are already nominated by the NJC for eight months running.
According to a source close to the judiciary who craved anonymity, ‘’at the time of budgeting the Supreme Court for instance makes provision for the replacement of its justices retiring in the preceding year. It is not only that the budgeted figure is grossly reduced, but the fund is never released when needed. Even when released, most times it has no cash-backing.
‘’The apex court spend a lot for the newly appointed justices. They require logistics, good accommodation (resident) and good offices spaces (chambers) with equipped library and legal or research aides.
‘’Without provision of funds in sight, the courts won’t initiate moves for replacement of retired justices, and if that is not done, justice system suffers in the country’’, the source stated.
On October 8, 2018, the former CJN, Justice Walter Onnoghen announced that the Supreme Court diary was full with appeals set down for hearing from 2018 till year 2021.
This was just only appeals filed between 2006 and 2009 that have dates of hearing/determination from 2018 till the end of 2021. Whereas, appeals or cases brought to the Supreme Court from 2010 till 2018 (8 years running) were yet to get dates of hearing, but set to be assigned hearing dates from 2022 and beyond. Cases affected were civil in nature. By mere simple projection or extrapolation then, it was going to take up to 2028 to clear those 8 years cases.
However, further media reports showed that the pending civil appeals adjourned for hearing/determination between 2018 and 2021 were 215 appeals filed in 2006, 253 in 2007, 235 in 2008 and 243 appeals of 2009.
Besides, pending appeals by 2018 which was to be given dates for hearing with effect from 2022 included 308 appeals from 2010, 324 of 2011, 351 of 2012, 503 of 2013, 597 of 2014 and 675 of 2015.
Others were 725 appeals of 2016, 743 of 2017 and 726 fresh appeals filed within the two quarters of 2018,
Besides, while a total of 8935 appeals were filed from 2006 till 2018, 3037 of that represented political and criminal matters; just as 5898 from the sum total were civil in nature that were pending in the Supreme Court docket as at 2018. The trend has not changed, but rather escalating with barely half of the required number of the Supreme Court justices in place presently.
By virtue of the ‘’Certain Political, Public and Judicial Office Holders (Salaries and Allowances, etc.) (Amendment) Act, 2008’’, CJN’s annual basic salary is N3,353,972.50 (or N279,497.71 monthly), while other Justices of the Supreme Court and the President of the Court of Appeal receive N2,477,110.00 as basic annual salary or N206,425.83 monthly.
The Act also dictates the allowances and fringe benefits payable to the judicial officers and they are even predicated on the annual basic salaries on percentage basis.
By the time the basic salary, allowances and fringe benefits are posted, the CJN and other Justices of the Supreme Court receive monthly salary alert of N480, 766.89 and N751, 000 in their bank accounts respectfully. The CJN’s net monthly salary is even lower than his brother Justices because of deductions made on account of other monetary and material provisions such as food items, which are provided to him by the Federal Government.
These are the positions for the past 12 years without review; while the workloads before them are increasing day-in day-out, and at the same time the number of justices available to clear the Augean stable are decreasing accordingly.
Incidentally, judges have peculiar circumstances because they are the only set of civil servants who are not entitled to salary scales since there are no junior or senior judges at the High Court, neither are there junior or senior judges at the Court of Appeal and the Supreme Court.
This is why the period for review of salaries of judges has to be specified in absolute terms by the constitution because of the ever fluctuating rates of inflation, just as the 2007 salary figures have been torn into shreds by inflations. This is just as it has become imperative to remove the fixing of the judges’ salaries in the same docket, Act or legal instruments with other public officers because of judges’ peculiarity.
It has been a considered view of some stakeholders that since President Buhari declined assent two years ago to the Judiciary Reform Bill, otherwise known as the Constitution (Fourth Alteration) Bill No 20 (Submission from the Judiciary), the bill should be reviewed to provide for specific period for judges’ salary review. In the same vein, they want a time lag be set for the NJC to recommend for replacement of retired justices of the Supreme Court, and time lag for the President to forward same to the senate for confirmation.
A senior advocate who didn’t want to be mentioned urged the President to save justice system in the country by sending names of the four justices recommended by NJC to senate for confirmation and ordered release of fund for their appointments and replacement of five justices that retired without further delay.