In July 2017, the National Assembly (“NASS”) voted to pass over 22 bills for the alteration of different sections of the 1999 Constitution of the Federal Republic of Nigeria as amended (“Constitution” or “CFRN”). The alterations cut across the spectrum of the three arms and tiers of government.
This article focuses on legislative alterations seeking to reform the Judiciary. The alterations touch on various issues, including right of appeal to a decision of the Court of Appeal, stay of proceedings, pre-election matters, Federal Judicial Service Commission (FJSC), National Judicial Council (NJC), National Industrial Court (NIC), Investment and Securities Tribunal (IST).
Appeals from the Court of Appeal to the Supreme Court
Section 233 of the Constitution is being altered such that the decisions of the Court of Appeal will no longer be appealed as of right, but with the leave of Court.
This differs from the current regime where an appeal from a decision of the Court of Appeal is of right if the appeal (a) is on points of law only; (b) involves interpretation of the Constitution; (c) involves a breach of fundamental rights; (d) is over a death sentence; and (e) involves a decision as to the Office of President or Vice-President. Under the alterations, all appeals are with leave of Court. Second, 3 justices of the Supreme Court can sit in chambers to consider and grant an application for leave to appeal. The Court of Appeal can also do so. We note that having removed the right to appeal as of right to the Supreme Court, the NASS should have also altered subsections 5 and 6 of section 233 of the Constitution to bring them in line with the alterations being made. These subsections still presume the existence of an appeal as-of-right.
Section 237 is to be altered such that the constitutional limit for the minimum number of Court of Appeal Justices is moved from 49 to 100 justices. This amendment would work better if the law goes further to stipulate a minimum number of panels each of the Division of the Court of Appeal should have —in my view, at least a minimum of 3 panels per Division or per courtroom. The Court of Appeal Act should be amended to capture this as well.
No Stay of Proceedings
Section 241 of the Constitution is to be altered to totally outlaw stay of proceedings where there is an appeal over an interlocutory decision. By virtue of the alteration to section 246, this will also apply to interlocutory decisions made during election-petition hearing. For criminal proceedings to which the Administration of Criminal Justice Act is applicable, the principle is already operational. This will greatly assist in speeding up delivery of judgments in many cases which are being bedevilled by appeals over interlocutory or intermediate decisions.
Appeals from the National Industrial Court
Under the extant Constitution, a decision of the National Industrial Court can only be appealed as of right where such decision borders on enforcement of fundamental rights in a labour-related dispute. The courts had long interpreted this to mean that there is no right of appeal over the decisions of the NIC. But the Supreme Court recently held in Skye Bank Plc. v. Victor Anaemem Iwu. that such decisions can be appealed against but with the leave of Court.
Section 243(3) of the Constitution is now being altered to clarify that the decisions of the NIC can be appealed against. But the Court of Appeal will be the final appellate court in respect of decisions from the National Industrial Court. Perhaps in response to the recent Supreme Court decision in Skye Bank’s case. This is commendable as it will shorten the hitherto lifespan of labour-related disputes. One flipside to this is the apparent knack by the Court of Appeal of different divisions to give conflicting decisions and the state of confusion this will cause regarding the position of law on matters that need clear judicial authority. The alteration above will in effect mean that it will no longer be possible to turn to the Supreme Court to settle the law on such matters.
Appointment of CJ and President of the Customary Court of Appeal
Under the alteration to section 250 of the Constitution, the Chief Judge of the Federal High Court is to be appointed by the President based on the “recommendation” of the National Judicial Council. Likewise, the President of the Customary Court of Appeal (CCA) will be appointed by the Governor on the “recommendation” of the NJC. This is to forestall the recurrence of the situation in Rivers State between 2014 and 2015 where the entire judicial machinery in the State grinded to a halt as a result of the impasse between the then Governor and the NJC over the discretionary powers to appoint any Judge to be the President of the CCA in the State.
Pension for Judicial Officers
Any judicial officer who has held officer for not less than ten years will be entitled to pension for life. The current period is fifteen years.
Federal Judicial Service Commission
Section 12 of the Third Schedule to the Constitution is being altered such that the President of the Court of Appeal will be the Deputy Chairman of the Federal Judicial Service Commission. Also, the Attorney General of the Federation (AGF) will no longer be a member of the Commission, but be replaced by the Minister of Justice.
Since the proposal to separate the offices of the AGF and the Minister of Justice (which is the plank upon which this was to rest) has been rejected by the House of Representatives, this amendment also automatically fails. Lastly, the Chairman of the IST will now be a member of the FJSC.
Shakeup of the NJC
The membership makeup of the NJC under section 20 of the Third Schedule to the Constitution is being altered.
Under the alteration, instead of 5 retired Justices of the Supreme Court and Court of Appeal, 3 retired justices of the Supreme Court and two retired justices of the Court of Appeal will be appointed to serve a term of 3 years only.
The President of the NIC will now become a member of the NJC; likewise, the Chairman of the IST will join the NJC.
The number of legal practitioners who are members of the NJC has now being reduced from “five members” of the NBA to “four senior members” of the NBA. The lawyers need not be Senior Advocates of Nigeria and must be at least 10 years at the Bar (not the present 15 years). The proviso to section 20(i) has also been removed by the National Assembly. This means the lawyers will now sit as members of the NJC to consider any matter, including sitting “for the purposes of considering names of persons for appointment to superior courts of records”.
Bill No. 21 seeks to alter section 285 of the Constitution. Some of the changes being proposed here are:
- when a preliminary objection is raised during the pendency of a case before the election tribunal or Court (in a pre-election matter), the Court is required to decide the preliminary objection along with its final judgment. For instance, where a party is challenging the competence of an election tribunal, the tribunal can only decide on this while giving its final judgment;
- introducing a limitation period for the filing of pre-election matters to 14 days after the occurrence of the event complained of;
- the Court before whom a pre-election matter is brought is required to give its final decision within 180 days after commencement of the pre-election matter and
- an appeal over such decisions must be brought within 14 days of the decision;
- the Court of Appeal is required to determine such appeal within 60 days—(effectively reducing the life span of a pre-election dispute up to the Court of appeal to approximately 9 months); and
- the alteration defines what cases qualifies as a “pre-election matter”.
Accordingly, a pre-election matter is any of the following:
- a dispute where an aspirant in a political party’s primaries complains that the procedure of the Electoral Act or procedure in the party constitution has not been followed;
- a dispute where an aspirant in an election contends that the Independent National Electoral Commission (INEC) has not complied with the law in excluding him from participating in such an election; or
- a dispute where a political party challenges INEC’s decision to exclude or disqualify its candidate from participating in an election or that the law was not complied with in the process of nomination of candidates of political parties for an election, timetable for an election, registration of voters, and other activities of the Commission in respect of preparation for an election.
The Investments and Securities Tribunal
There is a proposed amendment to make the jurisdiction of the IST consistent with the Constitution. The IST is a special tribunal established under section 274 of the Investment and Securities Act 2007 (ISA) to adjudicate on capital market disputes and the decisions of the Securities and Exchange Commission. But the jurisdiction of the IST as established by the Act is frequently subject of dispute as it seems to be in conflict with section 251 of the Constitution that sets out a broad spectrum of jurisdiction for the Federal High Court over virtually all corporate matters.
Under the ISA, the IST is made of 10 persons appointed by the Minister of Finance—5 legal practitioners and 5 non-lawyers who are knowledgeable in corporate and capital market matters. Under the proposed alterations, the Chairman of the IST is to be appointed by the President on NJC’s recommendation subject to the confirmation of the Senate (not the Minister of Finance as it obtains presently). Qualification for the position of IST Chairman is that the person must be a legal practitioner of 10 years cognate experience. IST members will be regarded as judicial officers—even if they are not legal practitioners.
Under the alterations, the jurisdiction of the IST covers matters involving a decision of SEC; dispute between SEC and self-regulatory organisations (such as NSE); SEC and a capital-market operator, investor, or issuer; and disputes on the management of collective-investment schemes. The proposed amendment confirms the jurisdiction of the IST as stated under section 284 of the ISA. But this jurisdiction is being granted under the Constitution to the exclusion of any other court. This means in the matters above, the Federal High Court’s decisions are subject to the IST’s. The IST will also have jurisdiction to enforce arbitral awards on capital market and related issues and adjudicate on international treaties and conventions in matters related to its jurisdiction.
The Appeals from the IST to the Court of Appeal will now be final. By the way, the wording of certain aspects of this Bill needs clarity.
Though these reforms are critical and commendable, some issues were left out. The vexed issue of a Special Court for corruption-related offences was not addressed. This may be a golden opportunity missed. There is currently an “EFCC Court” Bill before the National Assembly. Entrenching such a Special Court for corruption-related offences in the Constitution would have solved the jurisdictional hurdles that await the “EFCC Court” upon its establishment, similar to those that befell the National Industrial Court and the IST. Also, the Tax Appeals Tribunal (TAT) presently suffers a similar fate. It is strange that the amendment proposals are silent as to the status of the TAT.
The kind of changes being proposed for handling pre-election matters will significantly impact the cause lists of the Federal High Courts and the various division of the Court of Appeal (especially those in Abuja) during election cycles. Perhaps the National Assembly should begin to consider the creation of special “constitutional courts” to handle these pre-election matters to ensure that speedy determination of such disputes is not detrimental to the speedy resolution of other cases.
What Lawyers Should Know
- Lawyers will no longer bombard the Supreme Court with frivolous appeals especially those dealing with already settled principles of law. All appeals to the Supreme Court will be by leave of Court. It is my view that the Supreme Court and Court of Appeal should adopt a hard-line approach in deciding to grant leave to appeal. Since, it is already established that the Supreme Court will not disturb the concurrent findings of fact(s) of the High Court and Court of Appeal except where there is manifest breach of justice, the Courts should only grant leave were the points of law involved are: (1) very recondite; (2) involves an issue of national importance or national security or clear cases of breach of fundamental rights; and (3) where there are conflicting authorities on a particular points of law.
- Being the Court with the widest appellate jurisdiction in the land, the Court of Appeal can now have as much as a 100 justices to dispense justice quicker. The Court of Appeal is now required to have justices who are vast in employment and industrial-relations matters. Lawyers handling appeals in these areas should equally tighten their seat belts.
- NIC disputes now end at the Court of Appeal—as the final appellate Court on such matters; likewise, appeals arising from IST decisions of the IST. But will matters with “cross-border causes of action” be treated? For example, where a labour-related matter has elements of criminality or where the issues also bother on the fundamental rights of the citizen under Chapter IV or the African Charter on Human and Peoples’ Rights Act.
- If you’re not heading to the Federal High Court and Court of Appeal for pre-election and election matters, cases related to politically-exposed persons, corruption-related, terrorism-related, revenue-related, and a few other similarly fast-track cases, expect to be at the these courts for a longer period of time. There will be more pressure on the judges and justices to deliver, especially during election cycles. Lawyers and litigants may also expect some rather “inconsistent” decisions as it is often the case from various divisions these days.
- Lawyers can no longer ’harass’ the IST with the jurisdictional magic wand. The IST has now been elevated to the status of a superior court, with coordinate jurisdiction as the FHC.
- Lawyers might find one or more of their learned friends interviewing you before you cross to the bench. This is as a result of the amendment to the composition of the NJC. This shouldn’t be unusual. After all, all judges today were once learned colleagues anyway.
 Alteration to section 247 of the Constitution.
 Skye Bank Plc. v. Victor Anaemem Iwu SC. 885/2014. Judgment delivered on 30th June 2017.
 Alteration to section 291.