Off-season elections will continue with disputed polls – SAN

From the look of things, there is a need to amend the constitution in line with the jurisdiction of the Supreme Court. It’s not all appeals that get to the Supreme Court in the civilized clime. Even in South Africa, some appeals will not go beyond the cupboard. The Supreme Court nowadays is a policy court that should be saddled with constitutional issues. We recall that some years ago, governorship petitions were terminated at the Court of Appeal. At that time, the jurisdiction of the Supreme Court had not been expanded to also hear appeals from Election Petition Tribunals as regards governorship elections.

So, we currently have appeals from Election Petition Tribunals to the Court of Appeal and then to the Supreme Court. That is one of the problems. The constitution has to be amended to ensure that the jurisdiction should be streamlined. If you look at the Nigerian constitution, we have the High Court, the Court of Appeal, and the Supreme Court. Some matters are settled and it is not every matter that should go to the Supreme Court. Where the issue of law is well settled, why must the Supreme Court hear everything? In other civilized climes, if the appeal is won where the issue is settled, you have to write a brief argument to convince the Supreme Court why a panel must be constituted to hear the appeal. A typical case is a case on injunction.

When you want to obtain an injunction, the Supreme Court has already laid the guidelines for what any court must look at for either granting or refusing an injunction. If the principles are applied and the applicant is found wanting, the injunction is refused. Why go on appeal? You appeal to the Supreme Court which has already laid down the guidelines or the procedures for the grant or refusal of the injunction. So, the problem is not in the rules or regulations.

We are our problems and the cause of our challenges. It is just unfortunate that we have found ourselves in this mess and that the burden of the Supreme Court is increasing by the day. Even if you increase the number of justices to 21, the court will still be overstretched. The constitutional number is 21. They (justices) increased the number to 21 because we are in a litigious society.

As I said, the only thing for that to work is the need to amend the constitution and this needs to be done to take certain powers away from the Supreme Court and limit it to the Court of Appeal, but Nigeria is also a unique environment in the sense that if for some reasons you suspect that the justice of the case has been mortgaged, how then do you review that decision? We live in a country where our system is prone to abuse. I hope you are aware that the original jurisdiction of the Supreme Court is well defined and oftentimes, it bothers on major constitutional matters involving a state and another state, the state, and the Federal Government. In other words, the original jurisdiction of the Supreme Court is as regards constitutional interpretation, and disputes between the federal and the state governments. So, it is well-defined.

Again, that is another problem. If you are going to suggest that the Supreme Court must have divisions, we have 36 states in the federation, and if you want to do it along the geo-political zones, what will then happen to the Courts of Appeal? What will happen to the number of justices? It will increase. When you have the financial capacity to cope and handle that, you will see how they do it in other civilized climes. I was privileged to appear in some matters in England, and to be candid, if you go on appeal in a manner that they consider to be frivolous, you will pay a humongous cost. You can also be recommended for disciplinary proceedings; for professional misconduct because some matters do not even need to go on appeal.

Some matters can even be terminated at the High Courts. Before you can cross the hurdle of the High Court to get to the Court of Appeal, you will sweat not to speak of getting to the Supreme Court. You can only go there under a special lane; so, you must convince the Court of Appeal what the issue is before you can take it to the Supreme Court because this is the policy court. At that level, you probably have academicians; those who are seasoned tutors of the law.

I will tell you why I believe strongly that the constitution should be amended. Now, if you go to the hierarchy of court, let’s look at Section 6 of the 1999 Constitution, particularly Sub-section 5. It says that this section relates to the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, and the High Court of the states, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the states, the Customary Court of Appeal of the Federal Capital Territory, Abuja, and the Customary Court of Appeal. Such other courts may be authorised by law to exercise jurisdiction at first instance or on appeal on matters concerning which a House of Assembly may make laws.

So, in this section of the constitution from sub-section 1, it talks about judicial power. The judicial powers are vested in this hierarchy of courts and at the top is the apex court; the Supreme Court of Nigeria. We should now go to the section creating the Supreme Court itself and the power vested in it. I’ll take you to Section 230 Chapter 7 which says there shall be a Supreme Court of Nigeria which shall consist of the Chief Justice of Nigeria, such number of the Justices of the Supreme Court not exceeding 21.

So, if you now decide to create divisions in the Supreme Court, whatever the divisions you create, the number of justices must not exceed 21. Now, how many appeals do we have? Where are all the appeals coming from? We have 36 states, the FCT, and the Federal Government of Nigeria. So, when you look at all of these provisions, you can see why the burden on the Supreme Court is heavy. Appeals from election petition tribunals as regards the presidential election, appeals from the Court of Appeal, the Federal High Court, the Court Marshal, and State High Courts will go to the Supreme Court. So, for us to ensure that the docket of the Supreme Court is free, there is a need to amend the provisions of the constitution. There is no doubt about it because the Supreme Court is overburdened and this burden has been placed upon it by the constitution.