By Lillian Okenwa
In days to come the election petitions battle will hit the Supreme Court notwithstanding that the apex bench is greatly depleted. Over the years litigants in regular matters suffer greatly during an election year in Nigeria and with fewer appellate court justices handling the 2023 elections matters, regular appellants are in for a long haul. Chief Mrs. Funke Adekoya, ace arbitrator and a Senior Advocate of Nigeria, notable rights advocate, Mr. Femi Falana, SAN, Prof. R. A. C. E. Achara, Millennial Chairman, NBA, Enugu and Bill and Melinda Gates Foundation Fellow and Prof. Solomon Ebobrah, Faculty of Law, Niger Delta University shared their thoughts on these matters and more.
“The election petitions cripple all the levels of our superior courts, not just the Supreme Court. Regular litigants already suffer from delayed court proceedings and taking judges ‘out of the system’ for three to six months to hear election petitions is a travesty of justice,” began Mrs. Funke Adekoya, SAN,
“We have more than enough retired judges at all levels who can handle election petitions if the legislation to allow them to do so is put in place. The election litigants should be made to fund the cost of hiring such judges at agreed daily rates to be stated in the empowering legislation [Electoral Act 2024?], she counselled.
“Presently ordinary litigants whose taxes fund our court system are treated as “inferior” to the election litigants who can well afford to pay the costs of special judges to be recruited only for election petitions.”
To Mr. Femi Falana, SAN: “Election petitions have adverse effects on all superior courts of record in Nigeria. It has been confirmed that no fewer than 257 judges have been deployed for election petitions across the country. The judges are going to be preoccupied with election petitions for 180 days or 6 months. Very soon, more judges will be appointed as tribunal members after the governorship elections in Bayelsa, Kogi, and Imo States. The implication is that the other cases being handled by the affected judges will be adjourned until the next legal year.
“The Federal High Court was saddled with the responsibility of attending to pre-election matters to the detriment of other cases including criminal ones and fundamental right applications since pre-election cases are time-barred. I was made to understand that about 1,800 pre-election cases were filed in the registries of the various judicial divisions of the Federal High Court.
“Meanwhile, the Court of Appeal has just concluded about 600 appeals arising from pre-election cases in the Federal High Court. Apart from the several presidential election petitions pending in the Court of Appeal, very soon, appeals from the Election Petition Tribunals in the 36 States will congest the docket of the Court of Appeal.
“Of course, the Supreme Court has concluded over 120 appeals pertaining to pre-election matters. The apex court will soon commence hearing appeals from the Court in respect of the various presidential election petitions and governorship election petitions in all 36 States of the Federation. The pressure is going to weigh heavily on the apex court because it has only 12 Justices. Again, all other civil and criminal appeals will have to give way to election-related appeals.
“The Court of Appeal is currently constituted by 77 Justices instead of 90 Justices. From the information at my disposal, not less than 3 Justices of the Court of Appeal are going to retire during the current legal year. In order to address the shortage of Justices in the Court, the bill to increase the number of Justices from 90 to 110 ought to be speedily passed by both chambers of the National Assembly. In view of the fact that election-related appeals are also time-bound, the National Judicial Council should ensure that the vacancies in the Supreme Court and the Court of Appeal are urgently filled in the interest of the nation’s justice sector. All stakeholders hold it a duty to ensure that enough Justices are appointed to man the appellate courts.
“However, it is high time the Nigerian Bar Association led the struggle for credible elections in the country. I mean credible local government elections, pre-election, and general elections. If fair and free elections are conducted by the Independent National Electoral Commission and state independent electoral commissions, the number of election petitions will be substantially reduced.
“The NBA should also campaign for the prosecution of electoral offenders including party leaders who impose candidates in breach of the Electoral Act. The full weight of the law should be made to descend on the few anti-democratic forces that subject our country to ridicule, from time to time.”
Likewise, Prof. Solomon Ebobrah noted that “having a Supreme Court of 21 Justices is better for the delivery of justice in our polity, where delivery is already painfully slow.
“That means, of course, that as a result of the depleted Court, the regular work of the Supreme Court will suffer as the 2023 Presidential petitions move to the apex Court.
“However, it would be unwise, in my view, for the Bar to advocate for the appointment of more justices at this time because any of the parties can misinterpret any new appointments even if those new justices do not sit over the matter. That notwithstanding, advocacy for a complete court is important for sustainable access to court and protection of the constitutional right to fair hearing. As such the Bar should not shy away from that advocacy as soon as the election season is over.”
Prof. R. A. C. E. Achara had a slightly different standpoint on the matter.
“Quality of delivery from any top court is more a function of individual depth than it is a matter of the number of justices.
“Indeed, the evidence suggests that where the best thinkers are watered down by a flotilla of shallower sailing vessels, the plurality rule for the identification of the court’s position tends to thus prioritize as precedent what should rather have deferred to the minority.
“Again, a larger pool of top court justices, unless all entitled to sit over all appeals, leaves the outcome of disputes to the vagaries of the presiding adjudicator who has the final say on the composition of particular panels. In times and jurisdictions where few elite schools and traditions tend to determine recruitment and thus substantially guarantee a certain uniformity of views and standards, this somewhat capricious power might be of little moment. In jurisdictions where faith has been shaken and trust no longer taken for granted, this power of selection is potentially even more system destructive when it is joined with hasty flooding of the court merely to anticipate election appeals.
“Again, and perhaps a bit counterintuitively, a fewer member Supreme Court with the most perceptive thinkers would probably create at least 2 conditions better than when that court runs on diluted membership numbers beyond a total of, say, 7 or 9.
“In the one, the court would better appreciate its role as essentially the setter of position for lower courts and for general guidance of the legal system as a whole. So understood and with the resultantly less inconsistency of its decisions, there’ll be substantially less number of cases that would, as seems the case now, gamble their way up the judicial ladder to our top court.
“This is because people would be reasonably sure of what the courts would do in litigations and the consequences in damages and costs of wasting time on unfounded flights of fancy where the philosophy if not immediate facts have long been established in the other direction.
“On the other, for the fewer cases that will come upstairs as a result of a legally or factually well-founded need for clarification or for reform, a leaner brighter number in any top court is more likely able to deal with and agreeably dispose of more appeals than when a bloated number of less-resourced justices have been appointed to bog down the court by the additional but counterproductive weight of unnecessary numbers.”
