Editor’s Note: Today we publish the 2016 Report on Nigerian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Solomon Ukhuegbe, Department of Public Law, University of Benin, Nigeria; Ph.D. (Osgoode Hall), Barrister; Chima Cletus Nweze, Justice, Supreme Court of Nigeria; Ph.D. (University of Nigeria)
The Supreme Court of Nigeria currently comprises the Chief Justice of Nigeria and sixteen other Justices. Although the statute of the Court envisages as many as twenty-one, the present size is the largest in the history of the Court. Recent Chief Justices have resisted further expansion of the bench. Compulsory retirement age is set by the Constitution at seventy, but Justices may retire at sixty-five. Justices almost always serve out their tenure. Since 1999, for example, there has been only oneretirement before the age of seventy (illness). However, high membership turnover, because Justices mostly get appointed about the age of sixty (the average appointment age of the present bench is 59.5 years), means there are frequent vacancies on the bench. In 2016, membership turnover was about 20 percent. (Three Justices retired upon attaining seventy while four new Justices were appointed.) At present, only fifteen members are participating in the work of the Court due to recusal of two Justices because of corruption investigations.
The Supreme Court was established in 1956 (as the Federal Supreme Court) and was initially subject to the appellate jurisdiction of the United Kingdom’s Judicial Committee of the Privy Council, until 1963 when it became a final court of appeal in the Nigerian legal system. Nigeria has a two-tier appellate court structure comprising the Supreme Court and the Court of Appeal below it. During its sixty-year existence, 108 Justices have served on the Supreme Court. The current Chief Justice, Walter Onnoghen, the sixteenth, took office on 7 March 2017, although he had acted in that capacity since 10 November 2016 when the fifteenth Chief Justice retired. In 2016, there were four female Justices on the Court, the largest number ever. This is significant because only a half-dozen women have served on the Court, and the first appointment was only in 2005. However, women account for nearly a quarter of all appointments to the Court since that year.
The Court never sits en banc. It conducts most business in panels of five. However, seven Justices (‘Full Court’) are empanelled ad hoc by the Chief Justice for constitutional cases and for reconsideration of the Court’s precedents. In 2016, about 20 percent of all cases were heard by the Full Court, although this was rather peculiar as most of these were election-related (which usually involve constitutional issues) following the 2015 general elections in Nigeria. (In practice, the regular five-Justice panels sometimes also hear appeals raising constitutional issues, although it is not clear why this is so.) Every Justice on a panel is required to write an opinion in every case he participates in. This practice is a modified form of the seriatim opinions of English appellate courts because unlike the former, one Justice is assigned writing the primary opinion, which is circulated to other members of the panel. When the panel is split, the assignment is given to one of the majority Justices. Other Justices are required to write their own opinions as well, although frequently they are short concurring opinions, 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.
Read the rest of this entry…