By Chidi Anselm Odinkalu
In 1954 Sir John Verity lost his job because he won an argument. It was in his ninth year in office as Chief Justice of colonial Nigeria. Sir John arrived in Nigeria in October 1945 from the British Guyana, where he had served in a similar position since 1941. At the time, Nigeria was still a unitary system under colonial rule.
Two years before Sir John’s arrival in Nigeria, the Native Courts (Colony) Ordinance of 1943 had created a “Supreme Court of Justice” for the Colony and Protectorate of Nigeria. Taslim Elias, the distinguished academic who was destined to play a significant role in the administration of law and courts in post-colonial Africa, described the structure of the colonial court system that Sir John met on arrival in Nigeria as comprising “a Supreme Court, which is the highest court for the territory. It consists of two parts, a Divisional Court and a Full Court (as in the West African colonies), or a High Court and a Court of Appeal (as in several other colonies such as Jamaica, Singapore and Kenya), or simply a High Court (as in Uganda and Northern Rhodesia).”
That system had existed with modest adaptation since the Amalgamation in 1914. In his Amalgamation Report in 1919, Frederick Lugard, Nigeria’s founding Governor-General, pointed out that it was made up of a Chief Justice and Puisne Judges who “sat at certain places and visited on Assize the ‘District Courts.’”
Six years into Sir John’s tenure as Chief Justice, in 1951, the colonial government turned the country into a federation. Two years later, one of the issues to engage the constitutional conference that began in London was the implication of this new structure for judicial administration. As the conference began, the delegates – mostly politicians who preferred in the language of the day to be called “nationalists” – advocated the decentralisation of the judiciary. Sir John opposed the proposal, venturing with what proved to be accurate foresight, that such a step “might lead to judges and magistrates becoming tools in the hands of politicians” and “might eventually lead to the control of the judiciary by the Executive.”
The conference relocated to Lagos in 1954 where the politicians overwhelmingly approved the proposal to regionalize the judiciary. Having lost the fight over the future of the judiciary that he led, Sir John opted to take early retirement from the office of Chief Justice. He was the penultimate English man in the role.
In the reorganisation of the court system that followed upon the conclusion of the constitutional conference, the Federal Supreme Court (FSC) was created in 1954. The regions had high courts from which appeals could go to the FSC. The highest court for the country remained the Judicial Committee of the Privy Council in London.
By 1963, the nationalists fighting for independence one decade earlier had metamorphosed into political incumbents seeking control of the courts (like their colonial predecessors). The Privy Council had effectively ruled in favour of the opposition Action Group (AG) on the question whether the regional governor could remove renegade premier, Ladoke Akintola, without a formal vote in the regional parliament.
Confronted with the loss of a prized ally helpfully decimating the ranks of a loathed political foe (like a certain minister is doing today for the ruling party), the then ruling federal coalition led by the Northern Peoples’ Congress (NPC), legislated the Privy Council out of existence, abolished the Judicial Service Commission, and made the Supreme Court Nigeria’s apex court. Sir John’s prophecy had become reality.
Although the 1963 Constitution enabled the court to sit “in such other places in Nigeria as the Chief Justice of Nigeria may appoint,” the Supreme Court has functioned from its seat, first in Lagos when it was the capital city for the first three decades after independence and, thereafter, from Abuja, the current federal capital. The fortunes of the court have waxed and waned in symmetry with the political economy of Nigeria. Unlike other courts in the country, there are no divisions of the Supreme Court.
For much of its life, the Supreme Court was an all-comers affair for appeals “on questions of law.” As the claims on the court’s judicial bandwidth rose and the political economy of the country grew more complex, it was predictable that its docket would increase. The sensible thing to do was to reform the law governing access to the Supreme Court – as well as its doctrine – to keep pace with the increasing demand for the rarefied attention of the court and preserve its authority. This was not done.
Instead, since the onset of the current elective dispensation in 1999, the Supreme Court became preoccupied with electoral and political disputes. Among the many consequences from this, two are notable. First, the preoccupation of the court (and of the judiciary below it) with political and electoral disputes increasingly tasks its credibility. Second, the resulting prioritization accorded by the court to political cases has created an intolerable backlog to which there is no sensible solution under the current system of judicial administration. The result is that appeals not involving senior politicians or election results vegetate interminably in the bowels of the Supreme Court with no reasonable chance of getting heard.
It is right that this situation should engage the attention of senior lawyers and senior politicians. Manu Soro, the member of the House of Representatives representing Darazo/Ganjuwa Federal Constituency of Bauchi State, has decided to bell the proverbial cat. On World Anti-Corruption Day, 9 December 2024, his bill for Supreme Court reform was gazetted.
The bill proposes – among other things – to authorise the establishment of five regional divisions of the Supreme Court, with the one in Abuja serving as the headquarters. The bill comes complete with a political geography of the proposed divisions: Umuahia (Abia State) to serve the South-East; Bauchi (Bauchi State) for the North-East; Uyo (Akwa Ibom) for the South-South; Lagos (Lagos State) for the South-West; and Kano (Kano State) for the North-West. The declared objective of the bill is “to enhance access to the highest justice, to minimise the logistical cost of accessing justice and to ensure timely dispensation of matters brought before the apex court.”
Commendable as it is for initiative, this bill is plainly misguided for many reasons. First, it misconceives and mis-characterises the mission of the Supreme Court. Second, it has no diagnosis for the problems that ail the Supreme Court and, to the extent that it evinces any, offers no reasonable solution to them. Third, it offers a misplaced geographical and genealogical solution for a crisis of jurisdictional sclerosis and unimaginative judicial administration that it is unable to see.
The most charitable anyone can be about this bill is that it is hare-brained. The solution that it offers is guaranteed to make the situation worse, not better. It will also dis-establish the court because a “Supreme Court” that sits in judicial divisions will be neither apex nor supreme.
The crisis of appellate throughput and its consequences which presently afflicts Nigeria’s Supreme Court is too serious to be banished to post-codes defined by geographies of genealogy. To address it, the supply of appeals to the court will need to be constrained significantly. The administration of the court needs to be overhauled and professionalized; and case management needs attention too. The one thing the court cannot afford is precisely what this bill seeks – to cannibalise it into a collection of judicial Bantustans.
A lawyer & a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu
