The newspaper report that over 5,000 cases are pending in the Supreme Court, should worry every Nigerian. The sobering report claimed that appeal cases at the apex court last for about 10 years. That is justice delayed; which is justice denied. The report gave the history of some cases that lasted over 30 years in its journey from the lower courts to the apex court.
In one classical instance, a dispute over the ownership of Nwayal pond in Taraba State, which started in an area court in 1989 went through an upper area court, to a high court, to the Court of Appeal until it was finally determined by the Supreme Court in 2015. The case which was decided at the high court by Justice Mahmud Mohammed when he was the chief judge of the state, came before the Supreme Court when Mohammed was the Chief Justice of Nigeria, 15 years after.
That case lasted for 26 years; but a land case between the Anglican Church and the Iwaya community lasted for 33 years, starting at the Ikeja High Court in 1984 and determined by the Supreme Court in 2017. There is also a 1989 case over a vehicle attached in the execution of a judgment, allegedly belonging to a third party, which now has a December 2018 date for hearing. There are other cases which lasted several decades in their journey to the Supreme Court.
According to the report, the Supreme Court currently has 16 justices. That number will constitute an average of three panels of the court, since a full panel of the apex court is made up of five justices. Perhaps that partly explains why many of the cases last so long, such that most likely, some of the litigants may have died before their disputes are determined by the apex court.
We note the provisions of Section 230(2) of the 1999 Constitution that: “The Supreme Court of Nigeria shall consist of (a) the Chief Justice of Nigeria, and (b) such number of Justices of Supreme Court not exceeding twenty-one, as may be prescribed by an act of the National Assembly.” With only 16 justices currently at the apex court, there is still a maximum vacancy of five justices left to fill the constitutional limit, subject to an act of the National Assembly, which could it make lesser.
The implication of that provision is that at its fullness, the Supreme Court shall consist of four panels of five justices. With the entire country beholden to the Supreme Court of a maximum of 21 justices, that would still not be enough to deal with the clog up of 5,000 cases. At its current manpower of just three panels of five justices, each panel would have to deal with roughly 1,666 cases to decongest the court’s cause list, while a panel of four will deal averagely with 1,250 cases per panel.
Notably, the appellate jurisdiction of the Supreme Court is provided under section 233 of the 1999 constitution (as amended) and its sub-section 2 provides instances where appeal shall lie as of right, to include: “where the ground of appeal involves question of law alone, decisions in any civil or criminal proceedings before the Court of Appeal.” It also includes: “questions as to the interpretation or application of this constitution.” Furthermore, questions on contravention of the fundamental human rights and a sentence of death by the Court of Appeal. Where appeals do not lie as of right, as enumerated above, it lies with the leave of court.
So, the court is overwhelmed with cases. For us, this staggering delay in getting justice in our country is one more reason why Nigeria should go back to the practice of federalism. Why should nearly all cases have the chance to get to the Supreme Court? We recall that there was once a Court of Appeal in Western Nigeria. In our view, there is nothing wrong with having different jurisdictions for federal and state courts, such that matters exclusively within the purview of a state end up in appellate courts in the state.
In the immediate, the Supreme Court must rev up its efforts to bring technology to aid its performance. We acknowledge the ongoing effort of the Supreme Court in this regard and urge for accelerated action. Also, the vacancies in the court should be filled immediately. Another cause of the congestion is the requirement for appearances at the Supreme Court to become a senior advocate. We urge the relevant agencies to change that requirement, more so with the limited number of SANs elevated every year.
The current speed of cases across the hierarchy of courts does not meet the basic requirement of justice, and if we lay claim to being a democracy, we must wake up to this national challenge.