This is a rejoinder to the article titled: ‘MY LORD, THE HONOURABLE CHIEF JUSTICE OF NIGERIA LACKS THE CONSITUTIONAL POWER TO DIRECT CLOSURE OF ALL COURTS IN NIGERIA’ published on the website of the nigerialawyer.com on 7th April 2020. It is important to start by first clarifying that the Honourable Chief Justice of Nigeria (CJN) did not ‘direct closure of all courts in Nigeria’.

On the 23rd March, 2020, the Chief Justice of Nigeria (CJN) and Chairman, National Judicial Council (NJC) issued a circular with Ref. No. NJC/CIR/HOC/11/631 directing all head of courts, in both Federal and States Judiciary to suspend court sittings for an initial period of two weeks. In the circular, the CJN noted that in ‘view of the reality of the COVID-19 in the country and in order to take further preventive steps, all Heads of Courts are, from … 24th day of March 2020, directed to suspend court sittings for an initial period of two weeks at first instance, except in matters that are urgent, essential or time bound according to our extant laws.’ The CJN further directed that the content of circular be brought to the notice of all stakeholders in the justice administration.

Again, on the 6th April 2020, the CJN issued another circular with Ref. No. NJC/CIR/HOC/11/656. In the circular, the CJN noted that ‘…in tandem with the COVID-19 Regulations 2020 and as a preventive measures on the spread of the virus in the country, I had by circular No. NJC/CIR/HOC/11/631 dated 23rd March 2020 directed all heads of court to suspend court sittings for an initial period of two weeks.’ Considering, ‘…the lock down put in place by the Federal Government and some States Governments to curb the spread of COVID-19’and in view of the fact that the two weeks expired on 7th April 2020, the CJN then extended the period till further notice in the new circular. It is important to note that the CJN issued the two circulars in his capacity as the Chairman of the NJC. The relevant question to ask is whether or not the CJN, as the Chairman of the NJC, has the power under the constitution, and in view of the reality of the COVID-19 pandemic, to direct all heads of court both at the federal and states levels to suspend court sittings as preventive measures against the pandemic? In my view, this is the pertinent question.

Before I venture to answer this question, it is important to note that COVID-19 was, on 11th March, 2020, declared a pandemic by the World Health Organization (WHO). In the United States alone there are about 400,000 confirmed cases with 12,900 deaths. In Italy there are about 135,586 confirmed cases and 17,127 deaths and the numbers continues to rise across the world. Nigeria confirmed its first COVID-19 case on 27th February 2020. As at 7th April 2020, Nigeria has 254 confirmed cases, 44 discharges and 4 deaths. Need I also mention that COVID-19 has no known cure/vaccine yet and one of the disturbing news about it again is that it spreads through people who are symptomic and easily through asymptomatic people. Therefore, the reality is that COVID-19 is not a joke. It is a pandemic virus that has seen many powerful nations locked down and it has put the entire world in desperate situations and thus requiring desperate measures.

Now to the question whether the CJN has the power to direct heads of court to suspend court sittings in his capacity as the Chairman of the NJC. A critical but dispassionate look at Item I, Third Schedule, Part I of the 1999 Constitution spells out the composition and power of the NJC. Section 20 thereon makes the CJN the Chairman of the NJC. The membership of the NJC includes the next most Senior Judge of the Supreme Court, the President of the Court of Appeal, five selected retired Justices of the Supreme Court, Chief Judge of the Federal High Court, five Chief Judges of the states including that of the Federal Capital Territory etc. In section 21 (a), (b), (c) and (d) of the schedule, NJC is empowered to recommend to the President or the Governor (as the case may be) the appointment and removal of from offices of justices and judges including their appointment as heads of courts. NJC also exercises disciplinary control over them. Section 21 (e), (f), (g) and (h) of the schedule gives NJC the power to collect, control and disburse all moneys, capital and recurrent, for the judiciary; to advise the president and governors on matters pertaining to judiciary, to appoint, dismiss and exercises disciplinary control over member and staff of the Council; and under this the NJC also controls and disburse all monies, capital and recurrent, for the services of the Council.

If this is the case, where then does the CJN as the Chairman of NJC derive his power to issue the circulars directing the suspension of court sittings due to the outbreak of COVID-19? The answer is in section 21(e) of Item I, Third Schedule, Part 1 of the 1999 Constitution. This provision, in addition to other powers, confers the NJC with the power to “deal with all matters relating to broad issues of policy and administration.” It is crystal clear from the provisions of sections 20 and 21 of the Schedule that NJC is the regulatory body for the Judiciary in Nigeria. The word ‘administration’ as used in section 21(e) of the scheduled is defined using the free Dictionary online as:

“The act or process of administering, especially the management of a government or large institution.”

“Management of the affairs of an organization, such as a business or institution”

The Cambridge Online Dictionary also defined the word ‘administration’ as

‘The management or control of an organization’

The question now is: which institution’s matters relating to broad policy and administration is the NJC to deal with by virtue of section 21(e) of the Schedule? Administration of which institution? The administration of the NJC itself or the administration of the Judiciary in Nigeria or both? The combined provisions of sections 20 and 21 of the Schedule make provisions for functions and powers of the NJC itself and the power of control over and in relation to the Judiciary in Nigeria both state and federal. Using the ejusden generis rule, the phrase ‘all matters’ in the provision gives the NJC the power to deal with all matters and issues which, though not be specifically mentioned in the preceding provisions, relate to broad policy and administration of the Council (NJC) and the Judiciary over which the NJC is given regulatory powers. Therefore, section 21(e) invariably confers powers on the NJC to deal with all matters relating to broad issues of policy and administration of the NJC itself and the Nigerian judiciary. Thus, as the regulatory body for Judiciary in Nigeria, the NJC can invoke its power under section 21(e) of the Item I, Third Schedule, Part 1 to the 1999 Constitution to issue directive to the Nigerian judiciary at large and this directive can be communicated through the heads of the various courts both in the federal and in the states. This directive can also include that court sittings be suspended by judicial officers at this time due to the reality of COVID-19 in the country. Needless to say that the power of the NJC can undoubtedly be exercised through its Chairman which the CJN.

There is no doubt that the two separate circulars mentioned above were issued by the CJN not in his capacity as the CJN but in his capacity as the Chairman of the NJC. Thus, the submission of the author to the effect that the CJN and the NJC lack the constitutional power to either jointly or severally issue the circulars is a fatal misconception that has led the author to an erroneous conclusion. Had the author stopped there, the submission would have just been very bad. What makes it worse is the author urging all the heads of court to disregard the circulars. Again, venturing to appeal to all heads of courts to consider lawyers who would be adversely affected in the interest of justice is to be creatively insensitive and grossly unrealistic. By urging that the heads of courts should consider lawyers who would be adversely affected, did the author mean that courts should continue their normal sittings despite the provision of Regulation 1(7) of COVID-19 Regulations 2020 (made pursuant to Quarantine Act CAP Q2 LFN 2004) which validated the CJN’s circular Ref. No. NJC/CIR/HOC/11/631 issued on 23rd March 2020 and excluding only urgent matters as already directed by the CJN?

Almost everyone understands the economic implication of the lockdown and the regulations being put in place. But that has not made the CJN solely responsible for our collective woes in the legal practice! Should we begin to educate ourselves that COVID-19 does not know the Plaintiff or the Defendant neither does it care about who the Appellant or the Respondent is? In fact, it does not even give a damn about their counsel. The clients that lawyers desperately want to represent at the risk of CVID-19 would still prefer a healthy lawyer to a sick one, because a critically sick person cannot conduct court proceedings in court and it is only the living that can advocate before the court. Therefore, suspending court sittings at this period is not out of place. What we should begin to advocate is how the judiciary would key into Information and Communications Technology (ICT) so that both the bar and the bench can conduct their respective businesses devoid of physical interface, using ICT. It is submitted that the NJC has the power to issue the circulars suspending court sittings and the power can be exercised through its Chairman who doubles as the CJN. Thus there is nothing unconstitutional in what the CJN as done, as the Chairman of the NJC.

Kazeem A. Oyinwola writes from Abuja. He can be reached via [email protected]