‘SCAB’: A Step in the Right or Wrong Direction?

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A Bill, known as the Supreme Court Alteration Bill 2020 (SCAB), to alter Section 6(5) and Chapter VII of the Constitution of the Federal Republic of Nigeria 1999 (as amended), is in the offing. The major purport of this crucial amendment, is to regulate the jurisdiction of the Supreme Court and to create the Federal and State Courts of Appeal, thereby changing our Judicature as we presently know it to be. Kemi Pinheiro, SAN and Sola Akanni x-ray the Bill and what it seeks to do, and how it will affect justice delivery at the Appellate Courts. The question is, is it a good innovation or not?

Review of the Proposed Amendments to Section 6(5) and Chapter VII of the Constitution

Kemi Pinheiro, SAN

Introduction

My attention has been drawn to the draft of a Proposed Bill for the amendment of Section 6(5), and some salient sections of Chapter VII (The Judicature) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended). The provisions sought to be amended relate to the judiciary, hence my careful consideration of the provisions of the proposed Bill, because as it is often said “the judiciary is the last hope of the common man”. My immediate expectation was therefore, that major amendments as would promote a more effective and efficient judiciary and address the teething problems facing the judiciary would have been addressed, but is that the position? Are the proposed amendments likely to make the country’s judiciary more efficient?

It is pertinent to also state that, the United States Constitution of 1787 has been in existence for 230 years, with only 27 alterations. Similarly, the Canadian Constitution of 1867 and 1982 (both in operation in Canada), have been altered only nine times. Those countries have only been faced with little, or no constitutional crisis. The Nigerian Constitution on the other hand, is 21 years old, and has been altered five times within its short life span. It appears that the Nigerian Constitution, is fast becoming an encyclopaedia of volume and convoluted amendments.

My task here however, is to review the salient features of the proposed Bill, with a view to assessing its likely impact on justice delivery in Nigeria. I will consider each of the vital points I have observed from the provisions of the proposed Bill, under distinct heads. Let us first glance through the provisions of the proposed Bill, for a better understanding.

Overview of the Proposed Bill

A calm reading of the explanatory memorandum of the proposed Bill, immediately reveals that it seeks only to address and/or regulate the jurisdiction of the Supreme Court and the Court of Appeal. It therefore, does not make provisions bordering on the operations of other courts within the hierarchy of courts in Nigeria, but only affects those other courts as it relates to the appellate process. Consequently, the amendments proposed begins with the alteration of the enumeration of the superior courts of records as stated in Section 6(5) of the 1999 Constitution (as Amended).

Section 6(5) of the 1999 Constitution was altered in the proposed Bill to rechristen what was formerly known as the Court of Appeal as “Federal Court of Appeal”, and then introduces two new superior courts of record to be known as “the Court of Appeal of the Federal Capital Territory, Abuja” and “a Court of Appeal of a State”. This alteration sets the tone for the other alterations which are proposed in the draft Bill.

Section 230 (2) of the 1999 Constitution was altered in the Bill to make it mandatory that at least two of the Justices of the Supreme Court shall be Senior Advocates of Nigeria, and a third, a Professor of Law with proficiency in Constitutional law. Immediately following that alteration, is the alteration of Section 233 (1) to reflect the Federal Court of Appeal, as being the only court from which appeals will lie to the Supreme Court.

In the proposed Section 233(2) of the Constitution, the scope of the jurisdiction of the Supreme Court is stated, and limited basically to constitutional matters, fundamental rights enforcement, criminal matters involving death sentence and cases bordering on election into the office of the President or Vice President. All appeals to the Supreme Court as proposed in Section 233(3) are not of right, but by leave of the Supreme Court. Whilst this is commendable, it is my hope that all manner of appeals will not go to the Supreme Court under the guise of being a fundamental right matter, or involves some allegation of breach of fundamental right. The quorum of Justices of the Supreme Court to preside over a matter is now increased to nine, but when an application for leave is to be considered, only five Justices may preside over same.

Similarly, Section 237 of the proposed Bill provides for the Federal Court of Appeal consisting of Ninety-Nine Justices, out of which minimum of five shall be Senior Advocates of Nigeria and another minimum of five Professors of law. Notably, by the proposed Section 241 (1) & (2) of the Bill, the jurisdiction of the Federal Court of Appeal as distinct from the extant Court of Appeal is circumscribed and limited to constitutional matters, enforcement of fundamental rights, criminal matters with a sentence of death, matters relating to the seat of the Governor of a State and pre-election appeals. The Court of Appeal will by the proposed Section 242(3) be a final court in relation to an election petition in respect of the office of the Governor of the State, and by Section 242(4) be a final court in relation to appeals against any judgement and ruling of the Federal High Court, Court of Appeal of the Federal Capital Territory and the Court of Appeal of a State. Thus, except for those matters for which an appeal may by leave be lodged at the Supreme Court, the Federal Court of Appeal has been accorded the status of a final Court.

Sections 245 and 249 as proposed in the draft Bill established the Court of Appeal of the Federal Capital Territory and of the different States, they have jurisdiction to hear all appeals form the High Court of the FCT and the respective States. They have jurisdiction just like the extant Court of Appeal, but appeals however, lie directly from the State Court of Appeal to the Federal Court of Appeal and not the Supreme Court.

Remarkably despite that the qualification to be a Justice of the State Court of Appeal is same as the Federal Court of Appeal and higher than the qualification to be a Judge of the Federal High Court, appeals from the State Court of Appeal go to the Federal Court of Appeal in same way as appeals from the Federal High Court. The Court of Appeal of a State and of the Federal Capital Territory, are also to hear appeals within 180 days of the appeal been entered in the Court.

Having examined the provisions of the proposed Bill, let us proceed to consider vital issues regarding the proposed amendments.

Legal Assessment of the Proposed Bill for the Amendment of the Constitution

(1) The Object of the amendments sought, is too restrictive and limited

My first major concern with the provisions of the proposed Bill, is that laudable as it seems, its scope is too narrow and restrictive. It only seeks to address the appellate process as though that is only what needs to be reconsidered, and makes no real structural changes.

In fact, the amendments proposed seem to suggest that it seeks only to protect the Supreme Court from litany of cases, whilst the other courts can look for a way to sort out their own problems. No doubt, one would have expected better, particularly when many are beginning to cast doubt on the process of justice delivery in the country.

(2) It attacks the concept of Federalism

Another major failing of the proposed amendments, is its attack on the concept of Federalism. This becomes apparent in the first instance by the fact that the appointment of the Justices of the State Court of Appeal is to be made by the Governor of a State on the recommendation of the National Judicial Council. See proposed Section 249(3). The question that immediately agitates the mind is, why create a State Court of Appeal, is it to cede some judicial powers to the State courts to determine their issues, or for the Federal Government to intrude into the affairs of a State?

Why must appeals lie from the Court of Appeal of a State to the Federal Court of Appeal? Why should cases which do not bother on constitutional issues, not be terminated at the State level? What would have been expected is that, appeals even on constitutional matters should go directly from the Court of Appeal of a State to the Supreme Court, and not to the Federal Court of Appeal as proposed by the amendment.

I am of the view that within a federating system, the State Courts should have its own internal control mechanism as distinct from the Federal Courts, but all courts may have a united structure as its relates to constitutional issues, and that is where the National Judicial Council may come in. This is the type of practice in other countries operating a Federal System of Government such as the United States, where you have the State Courts and the Federal Courts.

(3) Delay in determination of Cases will be prolonged by the amendment

Another important observation from the proposed amendments is that, it has increased the Appellate process for constitutional matters and criminal cases involving death sentence. This is obvious in the fact that for such matters, an appeal may now pass through a triple appellate process, rather than the extant two appellate process.

Granted that a period of 180 days is prescribed for the hearing of appeals, but if a case will normally take a period of 10 years to be determined through the appellate process, is it not safer to say that the amendments proposed has added an additional four years, having regard to the unprecedented workload which the Federal Court of Appeal is now saddled with? Let me further demonstrate this point.

(a) Congestion of the Federal Court of Appeal

The Federal Court of Appeal under the proposed amendments will now take appeals from the following courts; (i) the Court of Appeal of the Federal Capital Territory (ii) the Court of Appeal of the States (36 States) (iii) Customary Court of Appeal (iv) The Federal High Court (v) National Industrial Courts (vi) the High Court of the different States in enforcement of fundamental rights actions and Constitutional matters (vii) the Court Martial and other professional bodies such as the Legal Practitioners Disciplinary Committee.

The implication therefore, is that the Federal Court of Appeal will be so congested with appeals that the prescription of 180 days for hearing appeals, will be observed more in breach than in compliance. This would have been avoided if appeals do not lie from the State Court of Appeal to the Federal Court of Appeal, but nay, the proposed amendments say otherwise.

(b) Likely Constitutional Interpretative Crisis may be occasioned

In the proposed amendment of Section 241(1) of the Constitution, it would be observed that the matters for which an appeal will lie to the Federal Court of Appeal include; “such other cases as may be prescribed by an Act of the National Assembly”. This would ordinarily cover such cases as appeals from the Court Martial under Section 183 of the Armed Forces Act and Section 16(6) of the Medical and Dental Practitioners Act.

However, those other laws as they stand today, make reference to the Court of Appeal and not the Federal Court of Appeal. Will all those laws now have to be equally amended, or will they simply be deemed to be referring to the Court of Appeal of a State? The proposed amendments are silent on this point, and will certainly occasion a crisis if not expressly addressed.

Also, in relation to the Supreme Court, the amendment sought is to limit the jurisdiction of the Court to constitutional matters, enforcement of fundamental rights and criminal actions involving death sentence, which shall all be with leave and not as of right. What the happens to the provision of Section 12(5) of the Legal Practitioners Act which provides that appeals against the direction given by the Appeals Committee of the Body of Benchers should be lodged at the Supreme Court? Again, the proposed amendments ignored the provision in other statutes like this.

(4) Procedural Issues infused into the Constitution

It has also been observed that in the proposed alteration to Section 286 (5) of the Constitution that a procedural issue as to what a Judge should do when a matter has been wrongly filed in his court has been infused into the Constitution, by directing that the Judge of the court in question should transfer the suit to the appropriate Court as allowed under the rules of that court. Firstly, as at today, not all courtsw allow for transfer of cases wrongly filed to another court, so it is not practicable.

Furthermore, the Constitution is the organic law of the country from which other laws derives their validity; it is therefore, in the realm of substantive law and not procedural law. See the cases of FRN v Osahon (2006) 5 NWLR (Pt. 973) 361 and F.C.D.A. v Ezinkwo (2007) ALL FWLR (Pt. 393) 95 at 115, paras. C – D.

Therefore, infusing procedural issues into the Constitution is not necessary, as it makes the Constitution too clumsy and bulky to comprehend.

(5) Issues causing delay in justice delivery such as interlocutory appeals have not been addressed

The proposed amendments did not address the issue of unnecessary interlocutory appeals, which stall the progress of a case at the trial court. This usually happens when, at the slightest unfavourable interlocutory ruling, a party exercises a right of appeal and causes the appeal to be entered at the Appellate Court, with the attendant effect that the case before the trial court is adjourned indefinitely to abide the outcome of the appeal. This leads to the rather disturbing trend that a case may end up staying in the courts for ten years, only to be returned to the trial court for determination as lamented by per Uwais, CJN (as he then was) in the case of Amadi v N.N.P.C. (2000) 10 NWLR (Pt. 674) 76 to the effect that:

“With the success of the Plaintiff’s appeal before us, the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgement on merit in the proceedings, as the case might be”.

Although it is observed that by the amendments proposed, appeals will be heard within 180 days of it being entered at the Court of Appeal of a State, but the opportunity for such appeals to be lodged can itself be a hindrance to the possibility of a hearing within 180 days, as the filing of many of such appeals will further burden the courts, with the attendant effect that it may not be able to surmount the pressure of the workload within the specified period.

It is therefore, safer to prescribe that such appeals be made to abide the final determination of the suit and determined together with any appeal arising therefrom, but again the amendments only focuses on the Supreme Court and Court of Appeal, whilst other Courts are left to their fate.

Conclusion

It is my view that a Constitution should not be an unduly wieldy document which is difficult to comprehend, or another encyclopaedia of amendments. In this regard, the proposed amendments to the Constitution as contained in the draft Bill, leave much to be desired. Amendments which will address all issues affecting the effectiveness of the Judiciary and be precise, as opposed to those which merely address the appellate process and will soon require further amendments, is preferred.

Kemi Pinheiro, SAN, FCIArb., Founding Partner, Pinheiro LP