Ngwuta’s death begins another decline in number of Supreme Court justices

Six of the 20 justices of the Supreme Court of Nigeria will retire in the next 33 months, adding to a vacuum created by the death of Sylvester Ngwuta.

Only in November last year did the court recover from a downward trend that had brought the number of justices of the court to an all-time low in 2020.

Within five years, President Muhammadu Buhari’s lukewarmness towards judicial appointments helped the number of judges of the court to fall to 12 with the retirement of Paul Galumje in April 2020.

Although five judges were appointed to the country’s highest bench between November 2016 and January 2019, the number was just half of the 10 that retired between February 2016 and the time Mr Galumje retired.

With a backlog of cases dating back to 2010 still in the court’s docket, some of the few remaining judges, including the Chief Justice of Nigeria (CJN), Tanko Muhammad, began to seize various opportunities to speak publicly about their heavy workload and the need to urgently fill the vacancies on the bench.

The downward trend was, however, stemmed in November 2020 when eight justices were inaugurated at a go, drastically jerking the number up to an unprecedented 20.

The appointment ignited hope that the apex court would soon, for the first time in history, attain the full complement of 21 justices.

But instead of reaching the full complement, the number, four months later, is slipping back into a reverse trend, starting with Justice Sylvester Ngwuta’s death on Sunday.

Six more judges to exit

Unlike in the United States where the appointment is for life, justices of the Supreme Court of Nigeria statutorily retire when they reach 70 years in age.

Mr Ngwuta died three weeks before his retirement was due on March 30. He will be followed out of the court by the second most senior judge of the court, Olabode Rhodes-Vivour, who will be 70 on March 22.

As Mr Rhodes-Vivour bows out on that date to bring the number of judges of the court to 18, five of his colleagues, including the CJN, Mr Muhammad, will also be exiting within the next 33 months.

Mary Odili, who will become the second most senior justice of the court when Mr Rhodes-Vivour leaves, will also retire on May 12, 2022.

Just 11 days after Ms Odili’s retirement, Ejembi Eko will follow her out of the door on May 23, 2022.

The CJN himself will retire on December 31, 2023, about seven months after President Buhari would have completed his second term in office.

If Mr Buhari’s tardiness in treating judicial appointments persists till the end of his tenure, it means that by the time the president who inherited a Supreme Court with 17 Justices in May 2015 is leaving office in May 2023, the number of the justices would have again plummeted to 14.

Persistent delays

The appointment of judges for federal courts has seen major delays under Mr Buhari’s administration.

His handling of the appointment of the last set of eight justices of the apex court typifies it.

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In June 2019, when the court had 16 justices, the president wrote the CJN, asking him as the chairman of the National Judicial Council (NJC) to “initiate in earnest the process of appointing additional five Justices of the Supreme Court of Nigeria to make the full complement of 21 Justices” as contained in the Nigerian Constitution.

The NJC immediately swung into action, and by the end of October 2019, the body had recommended four Justices of the Court of Appeal to the President for elevation to the apex court’s bench.

Mr Buhari refused to act on the list for almost one year.

While the list of four nominees was still pending, the NJC recommended another four candidates to the president for appointment to the Supreme Court bench in August 2020.

Mr Buhari still did not take any action until September when he merged the old and new lists and sent the eight names to the Senate for confirmation.

The Senate confirmed the appointments on October 13, 2020, but they would not be sworn in until about three weeks later on November 6 due to what our reporter understood to be a communication gap between the NJC and the presidency.

By the time the eight justices were inaugurated in November, they were not enough to push the number of judges on the apex court bench to the full complement of 21 that Mr Buhari had set out to achieve in 2019.

The appointment of the immediate-past CJN, Walter Onnoghen, also followed the same pattern of delay.

While the NJC recommended Mr Onnoghen to the President on October 13, 2016, Mr Buhari refused to forward his name to the Senate till the retirement of then outgoing CJN, Mahmud Mohammed, who retired on November 10, 2016.

The president subsequently named Mr Onnoghen as the acting CJN and refused to act on the NJC’s recommendation for months.

It took the Vice President, Yemi Osinbajo, who was then Acting President during Mr Buhari’s medical vacation abroad, to forward Mr Onnoghen’s name to the Senate for confirmation.

The Senate subsequently confirmed Mr Onnoghen’s appointment on March 1, 2017, and he was subsequently sworn in by Mr Osinbajo on March 7.

The appointments of the incumbent President of the Court of Appeal, Monica Dongban-Mensem, the Chief Judge of the Federal High Court, John Tsoho, his predecessor, the late Adamu Kafarati, and the present President of the National Industrial Court, Benedict Kanyip, also suffered months of unexplained delays caused by the president.

The last set of 12 justices of the Court of Appeal waited for about seven months before their recommendation by the NJC was approved by President Buhari and they were subsequently inaugurated in June 2018.

Impact of delayed appointments

The delay in the appointment of judges has a direct negative impact on the justice system.

The CJN, Mr Muhammad, made this point at the valedictory court session held in honour of then retiring justice of the apex court, Amiru Sanusi, on February 3, 2020.

As of that time, Mr Sanusi was leaving 13 justices behind on the bench, while the recommendation of four candidates to fill the vacancies was pending and unattended to by Mr Buhari.

The CJN warned that retirement without due replacements would leave the court more overburdened as the court received more cases on a daily basis.

The CJN said, “You will recall that barely seven weeks ago, being Thursday, December 12, 2019, we assembled here to honour our brother, Justice Kumai Bayang Aka’ahs, in a similar valedictory session.

“That ceremony painfully occasioned the depleting of our ranks at the Supreme Court.

“In a similar fashion, this session, too, is billed to further drastically reduce the number of Supreme Court justices as low as 13.

“This is not cheering news in view of the ever-increasing number of appeals that floods the court on a daily basis.”

Who is next CJN after Muhammad?

Going by the succession by seniority tradition that dictates who is appointed the heads of various courts in Nigeria, Olukayode Ariwoola currently the fourth most senior judge of the apex court with Mr Ngwuta’s demise, is positioned to emerge as the most senior after the incumbent CJN retires on December 31, 2023.

Born on August 22, 1958, Mr Ariwoola, who hails from Iseyin in Oyo State, is currently next in rank to Ms Odili, who is due to retire in May 2022.

The 62-year-old who was appointed to the apex court bench on November 22, 2011, will be the second most senior judge of the court for over a year and half till the retirement of the CJN in December 2023.

Barring any unforeseen circumstance, he should emerge as the CJN when Mr Muhammad retires and should hold the office till August 2028.