2016 Global Review of Constitutional Law

ions, or even merely a statement aligning
with the primary opinion. Dissents are rare.
This strong consensus norm is, however,
weakened by occasional dissensus on justification
even where there is agreement on
whether the appeal is allowed or refused. All
judgments are read in open court.
The business of the Court is mainly private
law (including commercial law), criminal
law and civil procedure. While rights cases
are uncommon, constitutional rights are
sometimes considered in criminal appeals.
That said, the Court’s output is low in rights
jurisprudence, international law and social
policy.
THE CONSTITUTION AND THE
COURT
The jurisdiction of the Supreme Court is
set out directly in the Nigerian Constitution
(sections 222, 223). While it has no advisory
jurisdiction (abolished since 1963), it has
limited original jurisdiction. But its purely
appellate jurisdiction is the source of at least
99 percent of caseload annually (100 percent
in 2016). The Supreme Court has the exclusive
jurisdiction to hear appeals from the
Court of Appeal, every decision of which is
potentially appealable to the Supreme Court,
at least with leave of either Court. Leave is
not required for any appeal from decisions
of the Court of Appeal in any civil or criminal
proceedings on any question of law, or
any question as to the interpretation or application
of the Constitution. In addition, the
Supreme Court must hear an appeal on any
question as to whether any of the fundamental
human rights provisions have been, are
or are likely to be contravened in relation to
any person, or an appeal for review of a death
sentence imposed by a lower court. It may
also hear appeals from the Court of Appeal
on any question as to whether a person has
been validly elected under the Constitution
to the office of President, Vice President,
Governor, or Deputy Governor, or whether
the term of office has expired or has ceased,
or whether the office has become vacant.
The original jurisdiction enables direct access
to the Supreme Court in legal disputes
between the central government and the
States, or between the central legislature and
the President or a State or a State legislature.
This jurisdiction therefore serves federalism
and the separation of powers functions. In
addition, there is a quasi-original jurisdiction
to entertain reference of ‘substantial
questions of law’ from the Court of Appeal. 3
Because of its extensive jurisdiction, the
business of the Supreme Court consists
mostly of mandatory appeals. It has no effective
means of regulating the volume or
content of its docket, and hence has almost
no influence on its agenda. The result is that
the Court is under severe caseload pressure
and has significant arrears of work, mostly
routine appeals. Except for criminal appeals
and a few other categories, it takes perhaps
up to ten years before an appeal is heard.
DEVELOPMENTS AND
CONTROVERSIES IN 2016
Appointments to the Supreme Court, including
the Chief Justice, are made by the
President on the recommendation of the
National Judicial Council (NJC). This twenty-member
body, established by the extant
Nigerian Constitution (1999), has a mandate
that includes recommending persons for
appointment to the superior courts and the
headships of the courts, including the Chief
Justice of Nigeria. In October 2016, on the
eve of the retirement of the 15th Chief Justice,
the Council recommended to the President
to appoint the ranking Justice, Walter
Onnoghen, as the sixteenth Chief Justice. It
has been a consistent practice since the appointment
of the fifth Chief Justice in 1979
for the recruitment of the Chief Justice to be
made from within the Supreme Court strictly
based on seniority. Ten successive appointments
of Chief Justices spanning democratic
rule and military dictatorship (1983, 1985,
1987, 1995, 2006, 2007, 2009, 2011, 2012,
and 2014) have adhered to the seniority preference.
It was a surprise, therefore, that the
President delayed accepting the recommendation
of the NJC for four months (although
in the meantime he appointed Justice Onnoghen
as Acting Chief Justice immediately,
the fifteenth Chief Justice retired in November
2016).
Although the government did not make its
position officially known, it was clear that
its view was that the recommendation of the
NJC on the appointment of a Chief Justice
was not necessarily binding. While it had
some support within the legal profession and
the public, the government’s position was
generally considered unfavourably as a thinly
veiled attempt to take control the judiciary.
Even if the position taken was noble, it
was clearly misguided. Section 231(1) of the
Constitution provides that,
The appointment of a person to the office
of the Chief Justice of Nigeria shall
be made by the President on the recommendation
of the National Judicial
Council subject to confirmation of such
appointment by the Senate.
Before the present Nigerian Constitution,
which created the NJC, the appointment of
the Chief Justice was firmly in the hands of
the executive. Under the 1960 Independence
Constitution, the appointment was made by
the Governor General on the advice of the
Prime Minister, 4 and in the 1979 Constitution
the appointment was ‘made by the President
in his discretion.’ 5 The difference between
the two was that the former was a Westminster-type
constitution, with executive power
vested in the Prime Minister and his cabinet,
while the latter is a presidential constitution.
There is, however, a clear shift in the present
Constitution. The President is merely the titular
appointor with only the power of formal
appointment. He no longer has a free hand
to select the Chief Justice, and indeed has no
discretion at all since the NJC recommends
only one person for appointment. In such a
system, the best practice is that the recommendation
is binding and where, in excep-
3
Constitution, s 295(3).
4
S 105(1).
5
S 211(1).
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