- Cautions against non-replacement of retired Supreme Court Justices
Hon. Justice Musa Dattijo Muhammad bowed out of the Supreme Court on Friday having attained the statutory retirement age of 70.
But His Lordship at the valedictory session attended by former Head of State, Gen. Abdulsalami Abubakar (Rtd.) and his wife Hon Justice Fati Lami Abubakar (Rtd.) a former Chief Judge of Niger state, Hon. Justice Sidi Bage, JSC (Rtd.), Emir of Lafia and one time Justice of the apex court, Attorney General of the Federation, Prince Lateef Fagbemi (SAN), President of the Nigerian Bar Association (NBA) Mr. Y.C. Maikyau ( SAN), Chief J.K Gadzama ((SAN), who represented the Body of Senior Advocates (BOSAN), a host of other dignitaries did not leave quietly without releasing a bomb that depicted his no-holds-bars personality.
The Powers of the Chief Justice of Nigeria
“As presently structured the CJN is Chairman of the NJC which oversees both the appointment and discipline of judges, he is equally Chair of the Federal Judicial Service Commission (FJSC) which recommends those selected for appointment to the NJC, the National Judicial Institute (NJI) and the Legal Practitioners Privileges Committee (LPPC) which appoints Senior Advocates of Nigeria. In my considered opinion the oversight functions of these bodies should not rest on an individual alone. A person with absolute power, it is said, corrupts easily and absolutely.
“As Chair of NJC, FJSC, NJI, and LPPC, appointments as council, board and committee members are at his pleasure. He neither confers with fellow justices nor seeks their counsel or input on any matter related to these bodies. He has both the final and the only say. The CJN has the power to appoint 80 percent of members of the council and 60 percent of members of FJSC. The same applies to NJC and LPPC. The power of being appointed a judge of any court rests squarely on him. Such enormous powers can be abused. Such enormous powers are effortlessly abused. This needs to change. Continued denial of the existence of this threatening anomaly weakens effective judicial oversight in the country.
“By the provision of Paragraph 20 of Part One of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended, the NJC shall comprise the following Members: the Chief Justice of Nigeria, who shall be the Chairman; the next most senior Justice of the Supreme Court who shall be the Deputy Chairman. Regrettably, the next most senior Justice of the Supreme Court like Deputy Governors of States, shorn of any official function except at the pleasure of the Governor, is neither consulted on anything nor does he have any official function. His job as No. 2 is purely as the CJN pleases. It is incumbent that the system provides for more inclusion and consultation among stakeholders.
Depleting Number of Justices at the Supreme Court
“The conversation about the diminishing number of justices of Nigeria’s Supreme Court has become a refrain. As I bow out today, the number is further reduced to 10 against the Constitutional requirement of 21 justices. That this avoidable depletion has affected the court and will further affect the court and Nigerians is stating the obvious.
“We are in an election season where the Election Tribunals and appellate courts are inundated with all manner of petitions and appeals. The Supreme Court is the final court in the Presidential, Governorship, and National Assembly election appeals. Yet, there are only 10 justices left to determine these matters. Constitutionally, each of these appeals requires a panel of seven justices to sit on them. When a panel of seven justices is constituted to sit on a particular appeal, only three justices are left out. Even when regular appeals are being heard in the Supreme Court, a panel of five justices is required to sit.
“We must not forget that the Supreme Court, being the highest court in the land receives all manner of appeals from the court below. Presently, there is neither limit nor distinction to the manner of appeals that come to the apex court. Again, beside election matters which are seasonal, the Supreme Court’s docket is overflowing with civil and criminal appeals, some of which took many years to arrive. Most of these are still pending. Several have not even been assigned hearing dates. The court also exercises original jurisdiction.
“As the justices who hear these matters are grossly overstretched, unable to meet the demands of their onerous assignment, the appellants who came to us seeking justice are left in limbo; waiting endlessly for justice to be served. These as I said before, are avoidable.
“When I exit today, the North Central region that I represent will cease to have any representation until such a time new appointments are made. My Lord Hon. Justice Ejembi Eko who also represented the zone retired on the 23rd of May, 2022. It has been a year and five months now. There has not been any replacement. With the passing of My Lord, Hon. Justice C.C. Nweze on 30th July 2023 the South East no longer has any presence at the Supreme Court. My Lord, Hon. Justice Sylvester Nwali Ngwuta died on 7th March 2021. There has not been any appointment in his stead for the South East.
“To ensure justice and transparency in the event of presidential appeals from the lower court, all geo-political zones are required to participate in the hearing. It is therefore dangerous for democracy and equity for two entire regions to be left out in the decisions that will affect the generality of Nigerians. This does not demonstrate federal character as required by our laws.
“Although it can be posited that no one expected the sudden passing of Justice Nweze, JSC, yet, it has been two years and seven months since the previous Justice from the South East died and no appointment was made. Ditto for the replacement of Justice Eko of North Central who exited nearly two years ago. Hon. Justice Sidi Bage, JSC, how His Royal Highness the Emir of Lafia, from the North Central, had earlier voluntarily retired. He is yet to be replaced.
“Also, it was clear ab-initio that I would be leaving the court this day on attaining the statutory age of 70. It is then not in doubt that there has been sufficient time for suitable replacements to have been appointed. This did not occur.
“When on the 6th of November 2020 the Supreme Court for the first time in its history got a full complement of 21 justices with the swearing-in of eight justices, little did anyone know that we were only a few steps to unimaginable retrogression. As it stands, only four geo-political regions —The South-West, South-South, North-West, and North-East are represented in the Supreme Court. While the South-South and the North-East have two serving justices, the North-West and the South-West are fully represented with three each. Appropriate steps could have been taken since to fill outstanding vacancies in the apex court.
“Why have these steps not been timeously taken? It is evident that the decision not to fill the vacancies in the court is deliberate. It is all about the absolute powers vested in the office of the Chief Justice of Nigeria and the responsible exercise of same.”
Click here to download the full judgment.
SPEECH-BY-HON.-JUSTICE-M.-DATTIJO