WHEN SHOULD LAWYERS BE MADE APPELLATE JUSTICES?
Three Court of Appeal justices were sworn in recently to move to the Supreme Court of Nigeria. They are Justice Sylvester Ngwuta, the presiding Justice of the Court of Appeal, Akure Division; Justice Mary Peter-Odili of the Kaduna Division and Justice Tajudeen Olukayode Ariwola of the Lagos Division.
At the beginning of the new legal year, Justices Bode Rhodes-Vivour and Suleiman Galadima from the Court of Appeal were sworn in as justices of the Supreme Court of Nigeria.
This raises once again the argument by some stakeholders in the judicial sector that deserving lawyers should be moved on first appointment as appellate justices of the Court of Appeal and Supreme Court to strengthen the judiciary.
They cite in support of their position precedents where such appointments had produced eminent jurists like Dr. Teslim Elias, who on first appointment as a judge became justice of the Supreme Court and Chief Justice of Nigeria. They also mention Dr. Augustine Nnamani who on first appointment became a Supreme Court justice and illuminated the law reports with his awesome pronouncements.
In addition, they rely on the constitution of Nigeria, which provides that after 12 years of qualification as a lawyer, a person can be made a justice of the Court of Appeal and for Supreme Court Justices, the minimum requirement is 15 years post-call.
On the other side of the argument, they contend that there are enough Court of Appeal justices from which justices of the Supreme Court can be chosen. The Court of Appeal by statute has a capacity for 70 justices while the Supreme Court has a maximum number of 21.
As at now, the Supreme Court has 13 justices and the Court of Appeal has 66. The justices of the Court of Appeal are chosen from judges of the 36 states and the Federal Capital Territory High Courts, Customary Courts of Appeal and Sharia Courts of Appeal.
There has never been a case of a judge who got to the Court of Appeal on his first appointment as a judge from 1976 to date. There were only two instances where justices of the Supreme Court came down to become presidents of the Court of Appeal: Justice Dan Onuorah Ibekwe in 1976 and Justice Mamman Nasir in 1978.
We may digress to look at the resume of lawyers who became Supreme Court justices on first appointment as Judges: Teslim Elias (1972), Dan Ibekwe (1974), Mamman Nasir (1976) Buba Ardo (1976) and Augustine Nnamani (1979).
Before 1962, one did not require a law degree to qualify as a lawyer. As is the tradition in England where we borrowed our legal system, on leaving secondary school, youngsters got articled to practising lawyers, learning the trade and writing relevant examinations and are called to bar thereafter.
Dr Elias, one of those elevated to the Supreme Court bench from the bar was unique in so many ways. He had five academic degrees, including two doctorates. He was called to bar in 1946 alongside Chief Obafemi Awolowo. He taught law in England and India. He was Attorney-General of Nigeria from 1960 to 1972 except from January to July 1966 when Chief Gabriel C.M. Onyiuke (QC, SAN) held the office.
He combined the job of Attorney-General of the Federation with his duty as dean of Faculty of Law, University of Lagos, between 1966 and 1972. He became QC in 1960 at 13 years post-enrolment; so on appointment as a Supreme Court Justice, Dr Elias had pursued academics from being Doctor of laws to professor and dean of the law faculty with numerous books to his credit. As an advocate, he became a member of the Inner Bar (Queen's Counsel) 13 years post-enrolment and as a member of the executive he made input in all federal legislations from 1960 to 1972. Such people do not come every day!
Next is Dr. Nnamani who, before he went to study of law, was a qualified pharmacist. He also had a doctorate degree in law. He was Commissioner for Lands in the defunct East-Central State and later in old Anambra State (a subdivision of ECS) from where he was moved to the centre as Attorney-General of the Federation in 1976. He was there at the crucial constitution making that gave birth to the second republic and 1979 constitution. In 1978, he became a member of the Inner Bar as a member of the second set of Senior Advocates of Nigeria with the likes of Professor Ben Nwabueze, who with one South African and Dr. Elias, were the only three Africans that got LLD of the University of London by examination as at 1993.
It is no wonder that his illustrious career was crowned with appointment as a Justice of the Supreme Court. But for his untimely death, he would have done more for the judiciary. The others are no less endowed: Justice Ibekwe was called to the bar in 1952 and had a meteoric rise.
He practised with J.I.C. Taylor in Lagos, became Chief Law Officer to Dr. Nnamdi Azikiwe as premier of Eastern Region in the 1950s, and later became Commissioner for Works in East-Central State and was appointed to the Supreme Court. At the creation of the Court of Appeal in 1976, he was appointed its pioneer president. He was at a time the Attorney-General of the Federation.
Also on the list is Justice Ardo. He was very distinguished and he later moved to become Chief Judge of the then North-Eastern State, which was subdivided into today's Borno, Yobe, Bauchi, Adamawa, Gombe and Taraba states.
Justice Nasir was the Attorney-General of North-Central State (now Kaduna and Katsina States) from where he was appointed to the Supreme Court. In 1978. He moved down to become the president of the Court of Appeal after Justice Ibekwe. He held the office admirably until retirement in 1995.
There is need to evaluate the pros and cons of each divide. Progressives who want more lawyers moved to appellate courts on first appointment and those who think lawyers get to the High Court as trial judges and gradually move on to the Court of Appeal and the apex court.
The former group is right that some of the appointees rose to eminence in their duty posts. But it is forgotten that not all of them were so celebrated. At the early times of our post-colonial bench, there were not many capable hands to choose from. In 1965, the pioneer Attorney-General of Eastern Nigeria, Michael Ajaegbo, was made a Justice of the Supreme Court. But for the civil war, he would have made a brilliant career in the apex court.
In the American system, certain category of judges comes into office by election. The other levels of court, including the Supreme Court of the United States, with a capacity for nine justices, sometimes pick lawyers to the Supreme Court on first appointment. However, most of the appointees to the US Supreme Court are extraordinary and leave their imprints on the court. Even the present Chief Justice of the US Supreme Court was a clerk/research assistant to a former Chief Justice and got the position in his mid-fifties.
Sometime ago, former CJN, Justice Mohammed Uwais, said that the days of lawyers getting to the Supreme Court on first appointment seemed to be over. Those clamouring for appointment of outstanding lawyers straight to the Supreme Court do not seem to agree with him. However, in England, most of their judges who sit on the High Court bench are taken from lawyers who have already attained the rank of Queen's Counsel (equivalent to our Senior Advocate of Nigeria). Even our own Oba Nsugbe (QC, SAN), is on the way to that, sitting now as an associate judge.
In our own history, Justice Chuba Ikpeazu was a QC before he became a judge of the Lagos State High Court. Also Dr. Elias became a QC in 1960, 12 years before he became a justice of the Supreme Court in 1972. Dr. Nnamani followed suit by becoming a SAN in 1978 and a judge in 1979.
There are about 319 SANs appointed from 1975 to date; about 80 percent of them are alive. A good percentage of this number is below 50 years and is a good population from which to appoint judges of the High Court.
It will be good for the system if the Senior Advocates can accept the offer and the government should pay enough for their loss from their lucrative practice.
Lord Denning, acclaimed to be the greatest lawyer of the last century throughout the commonwealth, made a first-class degree with honours in both Mathematics and law and became a High Court Judge after achieving silk at 15 years post-call.
Barrister Vincent Uko, a notary public for Nigeria is also former National Assistant Publicity Secretary of the Nigeria Bar Association (NBA).