By Levi I. Shaapera, Esq.
“In Nigeria, wrongdoers get away with impunity because the system offers no immediate remedy.” – J.S. Okutepa, SAN
The Supreme Court of Nigeria, established under Section 230(1) of the 1999 Constitution (as amended), is the apex court in the nation’s judicial hierarchy. Its composition, as prescribed by Section 230(2) of the Constitution and Section 3(2) of the Supreme Court Act, allows for a maximum of 21 Justices. With a retirement age set at 70, these Justices adjudicate appeals from the 20 divisions of the Court of Appeal, which has 87 Justices, as well as cases originating from the Legal Practitioners Disciplinary Committee (LPDC) and matters within the Court’s original jurisdiction.
Despite its esteemed role, the Supreme Court struggles with a growing backlog of cases, undermining the timely dispensation of justice. Litigants and senior members of the Bar have repeatedly expressed concerns over these delays. For instance, J.S. Okutepa, SAN, remarked:
“My brother, I represented Elder Simon Achuba, the former Deputy Governor of Kogi State, in 2018. Although the investigative panel found the allegations against him unproven, the State House of Assembly removed him anyway. A court later ordered his reinstatement, but the Assembly appealed. His tenure expired, and to this day, the Supreme Court has yet to hear the appeal. In Nigeria, wrongdoers get away with impunity because the system offers no immediate remedy.“
Another Senior Lawyer lamented, “Despite the recent appointment of Justices, the delays persist. My case was heard this week, and after dealing with procedural applications, it was adjourned—to February 2028! How did we get here?” Similarly, O.J. Opawale, Esq. expressed frustration, stating, “My case, a homicide matter, was adjourned from January 2025 to January 2028—three years adjournment!“
Indeed, the Supreme Court’s congestion, as lamented above, is undeniable. Even the procedure for checkmating frivolous or vexatious appeals, aimed at reducing the backlog, as provided under Section 32 of the Supreme Court Act, appears to be overwhelmed, necessitating key innovations in the Supreme Court Rules, 2024. Under Order 12, Rule 4, the Court now imposes penalties as follows: ₦2,000,000 for a successful party in a civil appeal, ₦1,000,000 for delaying the hearing of a civil appeal, ₦500,000 for applications heard in open court, and ₦2,000,000 for abuse of the Court’s process.
It is important to recognize that the Justices are not the cause of the problem. Rather, they bear the burden of an overstretched system that requires urgent reform. This article aims to answer the question, ‘How did we get here?’ by diagnosing the issue and proposing a workable solution to the current quagmire.
Career-Driven Appeals: The Root Problem
The Supreme Court’s primary mandate is to adjudicate cases of constitutional importance, legal uncertainty, and national significance. However, the requirement that applicants for the privileged rank of Senior Advocate of Nigeria (SAN) must have acted as lead counsel in at least three Supreme Court cases is a key driver of the Court’s congestion.
Originally designed to ensure that only seasoned advocates attain the prestigious rank, this requirement has instead created an artificial demand for Supreme Court appeals. Legal practitioners often escalate cases that should have been conclusively resolved at the Court of Appeal—not for their legal significance but merely to satisfy SAN qualification criteria. In reality, most cases before the Supreme Court, particularly criminal cases, are sponsored by lawyers rather than litigants. This diverts judicial resources from pressing constitutional and public interest matters, resulting in protracted delays for truly significant cases.
Why More Justices and Constitutional Amendments Won’t Solve the Problem
A common argument suggests that increasing the number of Supreme Court Justices to the constitutional maximum of 21 will resolve the backlog. However, this approach fails to address the root cause: the incentive structure driving unnecessary appeals.
Nigeria has an estimated 197,015 lawyers (subject to verification), and if each aspiring Senior Advocate of Nigeria (SAN) requires three Supreme Court cases, this would amount to 591,045 cases before the apex court. Even if only 10% of lawyers pursued SAN, the Court would still face nearly 60,000 career-driven appeals. Assuming all 21 Justices were appointed at the earliest age of 45 and served for 25 years, each would have 28,145 cases to adjudicate. This translates to 1,126 judgments annually—three per day, including weekends and public holidays. Given that the Supreme Court primarily delivers judgments on Fridays, this would require issuing 441 judgments every Friday, even during vacations. This is an untenable burden for any judicial system, making it clear that increasing the number of Justices will not alleviate the crisis unless the incentive structure fueling the backlog is dismantled.
Furthermore, while many advocate for a constitutional amendment to limit the types of cases reaching the Supreme Court, the real issue has little to do with constitutional provisions. The overwhelming caseload is not primarily driven by client insistence but by lawyers seeking to fulfill personal career milestones. If the three-case requirement for SAN were removed, cases would naturally conclude at their appropriate levels, with appeals pursued based on legal merit rather than professional ambition.
Realistically, how many convicts can and are willing to sponsor their appeals to the Supreme Court beyond a mere “Please, sign here”? In many cases, these appeals are not client-driven but lawyer-driven, with legal practitioners financing them solely to meet the SAN qualification. While a constitutional amendment might reduce the Supreme Court’s caseload, it cannot address the root cause unless the SAN requirement is reformed.
Why Punitive Costs in SCR 2024 Won’t Solve the Problem
While the newly imposed costs aim to curb frivolous appeals, they fail to deter career-driven litigation. Lawyers seeking SAN as I said earlier, often finance Supreme Court cases themselves, and an additional ₦6,000,000 cost for abuse of the Court’s process across three cases is unlikely to dissuade those already committed to the process. Without eliminating the three-case requirement, these costs merely increase the financial burden without addressing the root cause of the congestion.
A More Effective Alternative to the 3-Case Requirement
The first step in reforming the SAN qualification process is addressing the structural flaw in the 3-case Supreme Court requirement. A more effective approach, in my view, is to allow Supreme Court cases to be counted together with those from the Court of Appeal and other superior courts when assessing SAN applications. Instead of requiring applicants to appeal at least three cases to the Supreme Court, they should be required to have a total of 19 significant cases across all superior courts, with at least 10 at the trial court level and 9 at the appellate level. This would mean that all 9 appellate cases could come from the Court of Appeal, without the unnecessary pressure to push 3 cases to the Supreme Court.
By adopting this approach, candidates would still gain substantial appellate experience, while allowing the Supreme Court to focus on its core role as the final arbiter of law, rather than being burdened with cases pursued solely for SAN qualification.
Rethinking the SAN Qualification Process
The broader SAN qualification process itself demands re-examination. Does merely appearing before the Supreme Court equate to legal brilliance? The reality is that legal incompetence has been repeatedly exposed in Supreme Court judgments, with the Court frequently reprimanding inadequate legal practitioners. For instance, in Akeem Abiodun v. The State (2022) LCER-46641(SC), Uwani Musa Abba Aji, JSC, criticized a lawyer in the following words:
“It is highly lamentable and regrettable that the Appellant has to suffer this setback in his appeal because of the incompetence and quackery of his legal practitioner…”
Under the current system, an advocate who has been criticized for poor advocacy could still qualify for SAN simply by being labeled ‘incompetent and quack’ in three cases. This raises a crucial question: does the system genuinely recognize excellence, or does it merely reward procedural compliance?
Overhauling the Process: A Merit-Based Nomination
Elevation to the inner bar is said to be a privilege, not a right. In this context, a privilege is a special honour bestowed based on merit, discretion, or qualification. If SAN is truly a privilege and not an entitlement, why should it be acquired through an application process? In my view, the merit-based nomination process outlined below will restore the prestige and credibility of the rank of Senior Advocate of Nigeria:
1. Nomination from Superior Courts
Instead of self-application, the Heads of the 36 State High Courts, the Federal High Court, and the National Industrial Court should, upon the request of the Legal Practitioners Privileges Committee (LPPC), recommend advocates who have consistently demonstrated outstanding advocacy and ethical compliance. Judges who have observed a lawyer’s work over time should initiate nominations, ensuring that selections are based on professional excellence rather than career-driven appeals.
2. Vetting by Presiding Justices of the Court of Appeal
Presiding Justices of the Court of Appeal, who oversee appeals from the jurisdiction of the nominees, should, upon the request of the LPPC, review these nominations to attest to the nominees’ appellate competence. Their evaluations should then be submitted to the LPPC, ensuring that only candidates with genuine expertise at the appellate level are considered.
3. Evaluation by the NBA and Supreme Court Justices
To ensure further scrutiny, both the Nigerian Bar Association (NBA) and Supreme Court Justices should conduct independent reviews of nominees:
a) Confidential Supreme Court Assessments: Justices should provide feedback on nominees who have appeared before them, assessing their legal acumen and advocacy skills. Poor performances should weigh against applicants.
Some lawyers specialize in complex trial and appellate advocacy without ever handling Supreme Court cases. These practitioners should not be excluded from SAN consideration simply because they lack Supreme Court appearances.
b) NBA Peer Review: NBA branches should conduct confidential peer evaluations, assessing nominees’ ethical standing, courtroom performance, and contributions to legal development.
4. Processing Fees
Nominees who pass Stage 3 should be formally informed of their selection and required to pay a processing fee to cover administrative costs related to the final evaluation.
5. Scrutiny by the LPPC
The LPPC should move beyond a numerical approach and conduct oral and written interviews assessing:
- Depth of Legal Knowledge: Candidates must demonstrate mastery of legal principles, procedural rules, and judicial precedents.
- Ability to Handle Complex Litigation: Evaluation of courtroom skills, legal strategy, and case analysis.
- Contributions to Legal Development: Consideration of scholarly publications, mentorship, and law reform efforts.
- Ethical Standing: Assessment of professional conduct, adherence to ethical guidelines, and reputation among peers and judges.
At all stages, a nominee’s commitment to ensuring justice in the cases they handle should be a top priority. Unnecessary delays through frivolous objections should significantly impact the nominee’s chances of success. This measure will discourage legal practitioners aspiring to the honour from deliberately delaying cases in court, thereby promoting the speedy dispensation of justice.
Conclusion
This refined selection process would eliminate the artificial demand for Supreme Court appeals while ensuring that SAN remains a mark of true legal excellence. By shifting from a rigid numerical system to a merit-based approach, the SAN rank would be awarded only to those who have demonstrated genuine expertise, ethical integrity, and substantive contributions to the legal profession—without burdening the judiciary with unnecessary litigation.
Levi Shaapera, Esq.
Legal Practitioner, Commentator on Legal and Public Affairs, and Founder & Editor-in-Chief, LawCompass
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