“The problems of the Nigerian Supreme Court are not in decentralisation. The Supreme Court of Nigeria is about the only Supreme Court I know of that entertains all manners of appeals. The Supreme Court of Nigeria is overwhelmed and over-bloated by unreasonable and unnecessary appeals.”
By Lillian Okenwa
Although the Chief Justice of Nigeria (CJN), JHon. Justice Kudirat Kekere-Ekun, has explained the reasons behind conflicting judgments in the courts, blaming it on the lack of conferencing by various panels of the appellate courts, Nigerian lawyers have expressed concern over the plan by the House of Representatives to decentralise the apex court, some asserting that the case of conflicting decisions will worsen. Some others, however, applaud the idea.
The House of Representatives on 9 December 2024, introduced a bill seeking to create five divisions of the Supreme Court across the country, in addition to the headquarters, in Abuja. Abuja according to the bill, is expected to serve the North Central geo-political zone.
The bill, titled, “A bill for Act to amend the Constitution of the Federal Republic of Nigeria, 1999, to provide for the establishment of five divisions of the Supreme Court of Nigeria; to enhance access to the highest justice, to minimise the logistical cost of accessing justice and to ensure timely dispensation of matters brought before the apex court,” was sponsored by Manu Soro, representing Darazo/Ganjuwa federal constituency of Bauchi State.
The proposed legislation which has gone through the first reading, according to reports, is seeking the alteration of Section 230(1) of the 1999 Constitution (as amended) for divisions of the Supreme Court to be located in Umuahia for the South East, Bauchi for the North East, and Uyo for the South-South, Lagos for the South West and Kano North West.
Prof. R.A.C.E. Achara: “When the concept of a cohesive top court is misunderstood, the country’s Supreme Court is exploded into discombobulated blobs of distant division. I think this is one of the steps towards regionalization. But, even then! If we’re talking independence, okay. Anything less? A scattered SC in the face of already inconsistent panels is totally incomprehensible…
“When the concept of a cohesive top court is misunderstood, the country’s Supreme Court is exploded into discombobulated blobs of distant division…
“It seems slightly counterintuitive but the answer is to contract the number to 7 (1 CJN and 6 JJSC) of thoroughly grounded justices in the fundamental theory of Nigerian laws and procedural rules for their application (unfortunately theory has unwisely become almost a curse word in Nigeria).
“It is largely – how does one say this delicately to avoid offence? – it is largely a general disparity of capacity among members of our top court and its most influential advocates who serve to shape their decisions, on the one hand; and the decisional discrepancies that consequently arise and plague the current legal system, on the other hand, that principally cause the over-bloated dockets, not just in the SCN but in courts lower than it in the judicial hierarchy.
“When there is systemic or profuse uncertainty in SC decisions, litigants are motivated to gamble; and prudent counsel are forced to hedge their defences, multiply preliminary and interlocutory processes to pre-empt capricious adjudicators who are armed with the Janus of equally ranked conflicting judgments.
“It has not always been this atrocious. Read decisions of the regional High Courts of yore, for example, and marvel at how 4 pages of a judgment often make more judicial sense than 40 pages of internal and logical contradictions that many (I could even say most) of our superior trial and appellate courts bombard us with today.
“When the judge knows his onions, he can fairly narrow issues, speed up the trial, compress the judgment and thus provide a certain, logical, precedent that encourages future out-of-court settlements and therefore fewer court filings, et cetera.
“It is counterintuitive alright, but the deluge of dockets, especially at the SCN, has the best practical solution not in more justices and diverse territorial postings; but in fewer and better-grounded justices compelled to sit and ultimately decide en banc and only in one panel of all available justices (with a minimum quorum of 5 JJSC to take account, from time to time, of possible indispositions or recusals).
Prof. Anselm Chidi Odinkalu: “The Supreme Court will become like the Court of Appeal. We already have enough crisis of conflicting decisions. It will be cubed!
“I think we can all agree that the Supreme Court today is very overburdened. We should also be able to agree that it is impossible to prescribe a cure for a disease without a diagnosis.
“Why is the Supreme Court overburdened and (how) does regionalization of the Supreme Court constitute a cure for that? If you go to the Chambers of a Supreme Court Justice, it is like a dump. It is stacked with records of proceedings and it is difficult to walk. Anyone who thinks that they read those things is deluded.
“The Supreme Court is an all-comers affair & has no time for deliberation or contemplation. We all have to cover up for the deficiencies of the Court.
“Fact is a Supreme Court organized and run the way this one is can only run itself into the ground. There are sensible changes that could easily be made to massively crash the number of cases that go to the Court and dispense with many of the appeals there now that will never be heard.
“If you retain this Supreme Court as run now and create 36 state divisions, each with 21 Justices, you will still not be able to do anything about the Court being overworked. The problem is not the political-geography or genealogy of the Supreme Court; it is the geometry of its work and systems.”
“On the question of assizes or circuits around the various regions of the country as part of bringing justice closer to the ordinary man, Odinkalu said: “Sitting in assizes and having regional Supreme Courts are two different things. A travelling Supreme Court is one thing, regionalised Supreme Court is no longer ‘supreme.’
“Let’s start with getting the facts right: The ‘Supreme Court’ that held assizes in the past is the equivalent of the ‘High Court’ of today. The Federal Supreme Court did not do assizes in its 9 years of existence from 1954 and the present Supreme Court has not since it came into existence in 1963.
“Rather, it was the Chief Justices (as they were called then) of regional High Courts who were deputed ex-officio until 1960 or so to sit in the Federal Supreme Court. Justices of the Supreme Court have also stepped down to become state CJs. JIC Taylor in Lagos did it. Buba Ardo was the last in Gongola State to do it. Dan Ibekwe did that to head the Court of Appeal.
“On a more general point, no country develops backwards. The context in which assizes took place in the past was the under-development of both infrastructure and the legal profession. Lawyers could travel for days to get to hearings. The road infrastructure was poor. Telephony was hardly existent except for government higher-ups. But there was security largely.
“Today, communications have improved but there is no security. Interestingly, it is easier for a lawyer in Lagos or Enugu or Kano to get to Abuja than it is for a lawyer in Ife to get to Lagos; Benin to get to Port Harcourt; or Bauchi to get to Maiduguri. Indeed, it may even be easier than going between Wase and Jos or Orlu to Owerri or Barnawa to Malali.
“We can create divisions of a Supreme Court if we wish. But let’s not delude ourselves that it will thereafter remain Supreme. You will have Yoruba Supreme Court, Igbo Supreme Court, Middle-Belt Supreme Court… It may be that that is what we want – post-code, ethnocentric jurisprudence. If so, we should just say so and get it over with. “
Jibrin Okutepa, SAN: “Nigeria does not need to have a decentralised Supreme Court. The United States of America, with more states and population than Nigeria, has one Supreme Court.
“The U.S. Supreme Court is the highest court in the United States. Article III of the U S Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts.
“The Supreme Court of Nigeria by constitutional arrangements has 21 justices of that court. In the US, since 1869, the court consists of nine justices – the chief justice of the United States and eight associate justices – who meet at the Supreme Court Building in Washington, D.C.
“The problems of the Nigerian Supreme Court are not in decentralisation. The Supreme Court of Nigeria is about the only Supreme Court I know of that entertains all manners of appeals. The Supreme Court of Nigeria is overwhelmed and over-bloated by unreasonable and unnecessary appeals.
“For the Supreme Court to deliver quality judgments, we should think of restricting the appeals to that court. Those who think that the Supreme Court needs to have divisions and sit in divisions need to have a rethink. I would rather suggest that we have regional Supreme Courts and then have one Supreme Court of Nigeria where only appeals dealing with fundamental questions of constitutional construction and fundamental rights, death sentences and serious policy questions are brought before the Supreme Court on areas that are recondite or novel points of law of which the issues have not been notoriously settled.
In other words, all appeals should terminate at the Regional Supreme Court while only appeals of fundamental and significant constitutional importance should go to the Supreme Court of Nigeria either as of right or with leave of the Supreme Court of Nigeria. That, to me, is the rational thing to do.
Blessing Ekpere Ogbu, Esq, also shared his experience.
“In the buildup to the 2023 elections, I was involved in a research for a SAN who was representing one of the senatorial candidates in a pre-election matter. He summoned me to his office. When I arrived, he handed two law reports to me to read and advise. He wanted to know whether to file the pre-election matter in the FCT High Court, in the High Court of the State where the primaries are held, or in the Federal High Court (FHC).
“I studied the two judgments of the Supreme Court. One was an appeal from the House of Reps. primaries in Kogi State. The other was on a senatorial primary from Gombe State. Identical facts, as the dispute arose from alleged non-compliance with the party guidelines and whether INEC monitored the primaries. Both suits were filed in the High Court of the FCT. The two Judgments of the SC were delivered one week apart. At least, one JSC who sat on the panel for one was on the panel for the other. I said at least because I remember the name of one of them.
“Yet, the judgments were remarkably in conflict. In the earlier one, the SC held that the pre-election matter from Gombe State that was filed in the High Court of FCT was properly filed in the High Court of the FCT. One week later, the same SC, with at least one JSC from the earlier panel, held that the pre-election matter from Kogi State ought to have been filed in Kogi State and not in the FCT High Court.
“Now, imagine the effects of a decentralized SC on our jurisprudence.”
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