Barring any last minute change of decision, a list of eight candidates to be recommended by the National Judicial Council, NJC, to fill available vacancies on the Supreme Court bench, will hit the table of President Muhammadu Buhari in the next two or three weeks.
A top judicial officer and strong member of the NJC who preferred anonymity told Vanguard's Law and Human Rights on Tuesday that the Council is wrapping up the processto enable President Buhari seek the assent of the senate required for his appointment of the top judicial officers before he quits office on May 29, this year.
Vanguard reliably learnt that the NJC got the hint that President Buhari is willing to hand over a Supreme Court with full complement to his successor.
This, according to the source, is aside the fact that the court is not only evidently overstressed following its increasing workload and the depletion of its workforce but also because the exercise was long overdue having commenced almost two years ago.
The court presently has 13 serving justices.
The source said it is more compelling to fill the slots because two of the 13 serving justices--Justice Musa Datijo Muhammad and Justice Amina Adamu Augie, would be retiring from the apex bench before the end of the year, a situation that would leave only 10 justices in the court.
The serving 13 justices of the apex bench are Justices Olukayode Ariwoola, Musa Datijo Muhammad, Kudirat Kekere-Ekun, Chima Centus Nweze, Amina Augie, Uwani Musa Abba Aji, John Inyang Okoro, Lawal Garba, Helen M. Ogunwumiju, I.N. M. Saulawa, Adamu Jauro, Tijjani Abubakar and Emmanuel A. Agim.
The Justice Ariwoola-led Supreme Court
Of the 13 serving justices, three are from the North West, three are from the North-East, one from the North Central, one from the South East, three from the South West and two are from the South-South.
The demography of the top judicial officers showed that while two of them are due to retire during the year, one in 2024, two in 2026, one in 2027, three in 2028, two in 2029, another two will retire in 2030.
The details of justices of the court are captured below:
1.Justice Olukayode Ariwoola, South West, August 22, 1954 -August 22, 2024
2. Justice Amina Augie, North West, September 3, 1953-September 3, 2023
3.Justice Musa Muhammad, North Central, October 27, 1953-October 27, 2023
4. Justice Uwani Aji, North East, November 7, 1956-November 7, 2026
5. Justice Kudirat Kekere-Ekun, South West, May 7, 1958-May 7,2028
6. Justice Chima Nweze (PhD), South East, September 25, 1958-September 25, 2028
7.Justice John Okoro, South South, July 11, 1959- July 11, 2029
8. Justice Lawal Garba, North West, November 11, 1958-November 11,2028
9. Justice Helen Ogunwumiju, South West, March 23, 1957-March 23, 2027
10.Justice I.N. Salauwa, North West, September 29, 1956-September 29, 2026
11.Justice Adamu Jauro, North East,June 26, 1959-June 26, 2029
12. Justice Tijani Abubakar, North East, April 15, 1960-April 15, 2030
13. Justice Emmanuel Agim,South South,April 26, 1960 -April 26, 2030
Vanguard reports that the composition of the Supreme Court at any time is governed by constitutional and other statutory provisions.
According to Dr Mojeed Alabi, the Supreme Court was to consist of the Chief Justice, two Federal Judges or such greater number as might be prescribed by the Federal legislature and such number of acting Federal Judges as might be appointed under section 139 (3) of the 1954 Constitutionat the inception in 1954.
"Under the 1960 Constitution, the composition of the Supreme Court was slightly modified as the constitution provided for a Chief Justice of the Federation and not less than three justices.
"The 1963 Constitution also modified the composition to include a Chief Justice of the Federation and not less than five justices even though the Supreme Court Act of 1960 provided that number of Supreme Court justices shall be nine.
"Two Acts of the Federal Parliament passed in 1964 increased the minimum to eight. It was however raised to ten in 1977 and twelve in 1979.
"Under the 1979 Constitution, the maximum number of justices was increased to 15 excluding the CJN," he added.
But with the promulgation of Decree 24, which heralded the 1999 Constitution, the membership of the Supreme Court was increased to a maximum of 21 justices excluding the CJN while section 231(3) of the 1999 Constitution provides that " a person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years."
Notwithstanding the constitutional provision, the highest number of justices appointed to the Supreme Court was 17 all through the tenure of Justice Muhammad Lawal Uwais (1995-2006) and the first quarter of 2020 during the tenure of the immediate past Chief Justice Tanko Muhammad (2019-2022).
However, most times, the number of justices on the Supreme Court oscillated between 11 and 14 while all through the 1995 and 2022 legal years, no lawyer in private practice or academia was appointed to the Supreme Court as it used to be in the past.
But for the first time in the history of the court, the number of justices appointed to the Supreme Court bench hit a record high 21 in the first quarter of 2020 legal year under Justice Ibrahim Tanko Muhammad, but death, retirement and resignation depleted the figure to 13 justices as at today.
Specifically, Vanguard reports that between the first quarter of 2020 and June 27, 2022, four of the Supreme Court justices had retired for clocking the mandatory retirement age of 70 years, two died in office owing to protracted illness while the Chief Justice of the court himself, Justice Tanko resigned on account of ill-health even though he was said to have been ousted from the bench by the powers-that-be.
Presently, a credible source at the NJC told Vanguard that the Council is reviewing the list of candidates sent to it by the Federal Judicial Service Commission,FJSC, last year.
"I can confirm to you that we are at shortlisting stage now. The shortlisted candidate would be interviewed at NJC before final recommendation to Mr President. The process would be concluded in about two to three weeks," the source said.
Another source at the NJC told Vanguard that before now, NJC rarely tinkers with the list that came from the Federal Judicial Service Commission.
"But things have since changed. For appointment of judges and chief judges of high courts, NJC now does a fresh interview from the pool where FJSC picks its shortlisted candidate to ensure that the most competent hands are recommended for appointment.
"This is because it was discovered that the FJSC mostly uploads the names of candidates on the preferred list even when better candidates are on the reserve list. The discovery was done during interviews of some of the candidates on the preferred list. The NJC had at one time or the other rejected candidates on the preferred list on grounds of merit while those on reserved list were recommended for appointment.
"What the NJC does now is to give equal opportunities to all the candidates before recommending names of successful candidates to the chief executive for appointment into the bench," the source added.
It is, however, not immediately clear if the NJC would restrict itself to the names contained in the one-year-old FJSC short list produced by the administration of Justice Ibrahim Tanko Muhammad for more reasons than one.
The Vanguardsource who though did not confirm if NJC would go outside the FJSC list however explained that the new Chief Justice, Ariwoola is aware that there has been a persistent and mounting clamour by stakeholders that the composition of the Supreme Court should be allowed to enjoy sound legal minds from private practice and academia to improve the quality of the court's judgments which some pundits felt has gone down.
Besides, the source reminded Vanguardthatexisting FJSC short list did not accommodate the North East where the immediate past Chief Justice of Nigeria, Justice Tanko Muhammad who resigned his appointment, hailed from.
It will be recalled that for the resignation of Justice Tanko, he was billed to remain on the Supreme Court bench till December 31, 2023 when he would have clocked the mandatory retirement age of 70.
But his premature resignation has left another vacancy for competent candidates from the North East region of the country.
On-going efforts to fill available vacancies at the Supreme Court
Vanguard reports that before the Chief Justice Tanko Muhammad resigned his position on June 27, 2022, the process of appointing justices into the Supreme Court had commenced and was already in top gear.
Vanguard recalls that Chief Justice Muhammad (as he then was) had on January 19, 2022 requested stakeholders including the NBA to nominate suitable candidates for the said positions.
He had promised the NBA that only six suitably qualified lawyers would be selected from a pool of applicants from five of the country's geopolitical zones.
Following this, the NBA had nominated 23 lawyers, including seven Senior Advocates of Nigeria,SANs, and two women, for the job.
The CJN's proposal responded to years of pressure by stakeholders, particularly the Body of Senior Advocates of Nigeria,BOSAN, for its members and distinguished academics to be appointed to the topmost echelon of the nation's judiciary.
The proposal was not implemented by successive CJNs since the tenure of Justice Muhammadu Uwais who served between 1995 and 2006.
Justice Tanko had released a provisional list of candidates for consideration for the top job of Associate Justice of the Supreme Court.
The list which was sent to the Nigerian Bar Association for scrutiny contained 29 Justices of the Court of Appeal from five geopolitical zones.
None of the senior lawyers including seven SANs, that applied for the vacancies at the apex court was on the list.
Vanguard recalls that previous efforts to bring in some SANs to the apex bench in 2017 also failed during the tenure of Chief Justice Walter Onnoghen.
The former NBA President A. Mahmoud, had in a letter sent to the e-mails of all registered lawyers invited applications from suitably qualified legal practitioners to be appointed to the Supreme Court as provided for in Section 231(3) of the Constitution of the Federal Republic of Nigeria (as amended).
The process was on-going when Justice Onnoghen was thrown out of the bench with an exparte order from the Code of Conduct Tribunal.
Judges shortlisted by FJSC for appointment into the Supreme Court bench
The one-year-old FJSC document before the NJC presently for the recommendation of competent candidates to fill the existing vacancies on the Supreme Court's maximum 21-man bench includes five jurists each from the North-Central, North-West, South-South and South-West, while the South-East has a nine-man jurist team.
The candidates, all justices of the Court of Appeal, who made the list from the North Central zone are Justices Jummai Sankey, Stephen Adah, Sa'idu Hussain, Ridwan Abdullahi and Mohammed Idris, while the Justices of the Court of Appeal, who made the list from the North West Zone are Justices Ali Gumel, Tani Hassan, Mohammed Shuaibu, Jamilu Tukur and Balkisu Aliyu.
Also, the candidates, all justices of the Court of Appeal, who made the list from the South East are Justices Uzoamaka Ndukwe-Anyanwu, Chidiebere Uwa, Chioma Nwosu-Iheme, Theresa Orji-Abadua, Obande Ogbuinya, Uchechukwu Onyemenam, Onyekachi Otisi, Ugochukwu Ogakwu, and Kenneth Amadi, while the justices of the Court of Appeal, who made the list from the South South are Justices Moore Adumein, Biobele Georgewill, Frederick Oho, Dr Abimbola Obaseki-Adejumo, and Ebiowei Tobi.
The justices of the Court of Appeal from the South West that made the FJSC list are Justices Oyebisi Omoleye, Tunde Omotoye, Habeeb Abiru, Peter Ige and Joseph Oyewole.
The calculation at the time was that apart from the Southeast which was billed to get two out of available six slots then, other zones were billed to get one slot each on the apex court bench.
The mantle of leadership had since changed but what is left to seen is how the new leadership of the court and Chairman of both the FJSC and the NJC, Justice Ariwoola would fill the available vacancies at the Supreme Court.
The constitution allows appointment of qualified persons into the bench and not mere promotion of Justices of the Court of Appeal to the Supreme Court bench.
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Vanguard recalls that top lawyers had protested the FJSC short list on the account that it did not have any name of sound lawyers and academics who showed interest in the bench.
For instance, a Professor of Public Law, Prof Akinseye George, SAN, had said shortly after the FJSC list came out: "From all indications, it appears that for now, the Supreme Court does not want to open its doors for non-justices of the Court of Appeal. If you are not at the Court of Appeal, they don't want you there. That is the impression that I get, he said, adding that the list however cognized federal character.
A respected member of the inner bar, Chief Benbella Anachebe, SAN, said the Supreme Court should align with the constitutional provision for federal character. In doing so, it should be reminded to pick quality best brains from each of the zones even if they will not pick the most senior justices of the lower court.
Another prominent member of the inner bar, Chief Mike Ahamba, SAN, said he was also in support of merit as yardstick to appoint justices into the Supreme Court but that he would not give any opinion contrary to the constitutional provisions.
The pioneer Attorney-General and Commissioner for Justice of Osun State, Asiwaju Gboyega Awomolo, SAN, in his own view said "we have been agitating, urging that the appointment into the Supreme Court should not be restricted to justices of the Court of Appeal and that other qualified Nigerians in the academia and private legal practice be considered.
"Unfortunately, in the current exercise going on, Justice Tanko administration restricted the recommendation again to justices at the Court of Appeal. Appointment into the Supreme Court now depends on the CJN who is the chairman of the NJC and the general thinking of the members of the NJC.
"However, I really do not want to bother myself with the number of justices from each region. I want the appointment of the Supreme Court to be simply on merit.
"Emphasising character will amount to compromising standard and that has been the major complaint of the NBA: when you start looking for federal character compliance, you are more or less compromising the principle of meritocracy," he said.
But another top lawyer who does not want his name in print said that the present situation at the apex bench requires emergency situation.
He said pending the time the Supreme Court would sort itself out regarding the proper persons to appoint into the apex bench, he said the following measures must be taken urgently:
a) Amicus Curia role and officers should be introduced and standardized in the Supreme Court. An Advocate General Office should be set up to manage, consider, and participate in all public and constitutional law litigation.
b) Standards of legal assistants employment should be re-assessed. There should be evidence of a strong research capacity with a minimum number of publications spread across reputable journals in constitutional law, public law, business law and international law. "I agree that in our federal system, the Supreme Court must reflect federal character so that all Nigerians will have a sense of representation in the court. However, federal character must be applied along with the principle of meritocracy.
