The Judiciary

This is the third arm of the realm of government. It is the only branch not made up of elected representatives, but of persons appointed to perform the very fundamental role of adjudication in society. According to Black's Law Dictionary, the Judiciary is that branch of government invested with judicial power, which is intended to interpret, construe and apply the law. Per Justice Nnamani, the Judiciary is the guardian of our Constitution, the protector of our cherished governance under the Rule of law, the Guardian of our Fundamental rights. All of these definitions, inter alia, serve as pointers to the role of the Judiciary in societies, as the custodian of Judicial power, the scope and extent of which differs from society to society.

Judicial powers

Section 6(1) and (2) provide that that the Judicial powers in a Federation and State shall be vested in the courts established for the Federation and the State respectively. In defining what is meant by "Judicial Power", Nnaemeka Agu JSC in Senate v Momoh, described judicial power as the authority exercised by the department of government that is charged with declaration of what the Law is and its construction.

Scope of powers

Constitutions, especially written ones, in vesting judicial powers in the courts, automatically grants to them the power of Judicial review of the actions of the other arms of government, their agencies and generally. The exercise of this power is further emphasized under the 1999 constitution which, like its predecessors, prohibits the ouster of the jurisdiction of the courts by any Federal or state legislature (See Section 4(8)), and further extends these judicial powers given under section 6(1) and (2) to:

(a) ...to all inherent powers and sanctions of a court of law
(b) ...to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;

See section 6(6)(b) for the provision above. In Adigun v AG Oyo State, the Courts described inherent Powers as that power which is itself essential to the very existence of the court as an institution and to its ability to function as such institution. On the power of the court to adjudicate on matters between persons, government, inter alia, the court can by virtue of these powers, make pronouncements on the actions of the Legislature, the Executive and other organs. Thus, in AG Bendel State v AG Federation, the Court held that the procedure for passing the Appropriation bill by the National Assembly was unconstitutional and could not be waived.

Judicial independence

In the light of the very fundamental role that the Judiciary performs in society, there is no doubt about the importance of ensuring its independence and impartiality in carrying out its functions. Per Winston Churchill, "the principle of complete independence of the Judiciary... is the foundation of many things in our Island life... It is perhaps one of the deepest gulfs between us and all forms of totalitarian rule."

Composition, constitution and qualifications

Section 6(3) of the 1999 constitution provides that the courts to which the section relates are the only 'Superior Courts of Record' in Nigeria. Thus, only the Courts established by the Constitution are 'Superior Courts of Record'. The composition and qualifications required of members of the courts established by the Constitution is as follows:

1. The supreme court

The Supreme Court is made up of the Chief Justice of the Federation and other Justices, the number of which is to be prescribed by an Act of the National Assembly, but which must not exceed 21. At least five of the Justices must be seated during the ordinary conduct of business of the Court and at least seven when the Supreme Court is hearing appeals as of right under section 233(2)(b) or (c) or is exercising its original jurisdiction under section 232.

Before a person can be appointed as a Chief Justice or Justice of the Supreme Court, he must be qualified to practise as a legal practitioner in Nigeria, and must have been so qualified for at least 15 years.

2. The court of appeal

The Court of appeal is composed of a President as the head of the Court and other justices who must not be less than 49 in number, and three of whom must be learned in Islamic Law, and another three in Customary Law. The Court of Appeal seats in almost all the States of the Federation which is probably why the number of justices is this many. The Court must be composed of at least three justices at any of its sittings.

The required number of years for qualification as a legal practitioner here is 12 years.

3. The federal high court

This Court is headed by a Chief Judge, assisted by such number of Judges as may be prescribed by an Act of the National Assembly and it is duly constituted with at least one judge seating. A judge of the Court must have been qualified to practice as a legal practitioner in Nigeria for at least ten years.

4. The high court of the federal capital territory, Abuja

This Court is headed by a Chief Judge, assisted by such number of Judges to be prescribed in an Act of the National Assembly. The Court is duly constituted with one Judge seating.

5. The sharia court of appeal

By virtue of section 260 of the Constitution, it is headed by a Grand Kadi to be assisted by such number of Kadis as may be prescribed by an Act of the National Assembly.

6. The customary court of appeal

This Court is headed by a President, assisted by such number of Judges as may be prescribed by an Act of the National Assembly.

The above stated Courts are the Federal courts. The Constitution however also created some State Courts as Superior Courts of record and information on these Courts are as follows:

1. High court of a state

The Court is headed by a Chief Judge, assisted by such number of Judges assisted by such number of Judges as may be prescribed by a Law of the House of Assembly and the Court is duly constituted with one Judge seated. The qualification required is ten years pre-appointment practice in law in Nigeria.

2. The sharia court of appeal of a state

This is headed by a Grand Kadi, assisted by other Kadis, the number of which is to be prescribed by the House of Assembly. To be qualified as a Kadi, a person must fulfill either of the following conditions.

(a) he is a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years and has obtained a recognised qualification in Islamic law from an institution acceptable to the National Judicial Council; or
(b) he has attended and has obtained a recognised qualification in Islamic law from an institution approved by the National Judicial council and has held the qualification for a period of not less than ten years; and
- he either has considerable experience in the practice of Islamic law, or
- he is a distinguished scholar of Islamic law.

3. Customary court of appeal

This is headed by a President assisted by other Judges, the number of which is to be prescribed by the House of Assembly. To be qualified as a Judge here, a person must satisfy either of the following conditions.

(a) he is a legal practitioner in Nigeria and he has been so qualified for a period of not less than ten years and in the opinion of the National Judicial Council he has considerable knowledge and experience in the practice of Customary law; or
(b) in the opinion of the National Judicial Council he has considerable knowledge of and experience in the practice of Customary law.

Federal court appointments

The method of appointment of members of the Judiciary, especially in the light of the very fundamental role they perform in Society, is very important. The method has a direct bearing on the integrity and independence of the Judges. Under the 1999 constitution, there are two methods of appointment in relation to the Federal courts:

Appointment by the President, on the recommendation of the National Judicial Council, subject to confirmation by the Senate. The Chief Justice and Justices of the Supreme Court, all the heads of the various courts such as Court of Appeal, Federal High court, High Court of the FCT Abuja, Sharia Court of Appeal Abuja and Customary Court of Appeal Abuja. The heads of these Courts stated are appointed in this manner. The Federal Judicial service advises the National Judicial Council on these recommendations except in relation to Courts of the FCT Abuja.
Appointment by the President on the recommendation of the National Judicial Council. All other members of the various Courts stated above except their respective heads, see appointed in this regard. Here also, the National Judicial Council is to act on the advice of the Federal Judicial Service Commission.

Dismissal

Section 292(1) of the 1999 constitution provides that a Judicial officer cannot be removed from office before the age of retirement except by virtue of the two methods laid down in the section, depending on the level of the Judicial officer:

(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances -
(a) in the case of -
(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja, by the President acting on an address supported by two-thirds majority of the Senate.
(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State,
Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;
(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

Remuneration and conditions of service

Section 80 of the 1999 constitution provides for the creation of the Consolidated Revenue Fund. Section 84(1) provides that the National Assembly is to prescribe the salaries of some public officers including Judges of the Superior Courts of record, but the amount must not exceed what the RMAFC have determined. Such salaries are to be charged on the Consolidated Revenue Fund. This is to ensure the Executive does not tamper with it in any way.

Tenure

Section 291 of the Constitution provides that Judges of the Supreme Court and Court of Appeal may voluntarily retire at the age of 65 and compulsorily at Seventy years. In relation to other Judges, the ages are sixty and sixty-five respectively. Worthy of note also is the provision of section 292(2) which states that after retirement, a Judicial officer cannot for any reason whatsoever, appear or act as a legal practitioner before any Court of Law or Tribunal in Nigeria.

Conduct of business

The Constitution in various provisions, gives the heads of the various levels of the Court the power to make rules for regulating the practice and procedure of their courts, subject to the provisions of any Act of the National Assembly. As has been stated, "practice and procedure" means the mode of proceedings by which a legal right is enforced as distinguished from the Law which gives or defines a Right. Thus, where there is a laid down procedure in relation to proceedings before a particular court, an accused person can insist on the particular procedure as a matter of right.

Jurisdiction

Jurisdiction is basically the power of a court to hear or try a case and a court can only exercise judicial powers within an authorized jurisdiction. Under the 1999 constitution, jurisdictional issues can be divided into Original, Exclusive and Appellate jurisdiction among the various levels of courts. Generally, before a court can exercise jurisdiction, it must satisfy certain conditions prescribed by the Court in Madukolu v Nkemdilim. That is: It must be properly constituted as regards number and qualification of Judges, the subject matter of the cause must be within its jurisdiction and the case must come before the Court initiated by due process of law.

1. Original jurisdiction

The word "original" in normal parlance means the beginning of something. It is in this sense that the Constitution confers original jurisdiction on some of the courts recorded. Section 232(1) of the Constitution confers original jurisdiction on the Supreme Court in disputes between the Federation and a State, or between states if, and in so far as the dispute involves questions on which the existence or extent of a legal right depends and also in (2), in relation to other matters in which original jurisdiction may be conferred on it by an Act of the National Assembly. The Jurisdiction conferred on the Supreme Court here is to the exclusion of any other Court.

In relation to the Court of Appeal, the Constitution confers original jurisdiction under section 239 in relation to questions as to the valid election to office of a President or Vice President under the Constitution, or whether their term of office has ceased or whether their office has become vacant. The Supreme Court in Awuse v Odili held that the decision of the Court of Appeal is final in cases of election petition.

2. Exclusive jurisdiction

The effect of Exclusive Jurisdiction is to make a particular Court the only arbiter of a particular matter to the exclusion of any other Court. Thus, the Supreme Court has the exclusive jurisdiction to hear appeals from the Court of Appeal. Under section 240 of the Constitution also, the Court of Appeal has exclusive jurisdiction to hear and determine appeals from all superior courts of record including a Court Martial or any other tribunals as may be prescribed by an Act of the National Assembly. The effect of this is to make the Court of Appeal the Court of first instance in relation to such appeals.

The Federal High Court exercises exclusive jurisdiction in civil and criminal causes and matters, in relation to matters specifically stated in section 251(1) and (2) of the Constitution. This, on the face of it, limits the jurisdiction of the State High Court in such civil causes and matters.

3. Appellate jurisdiction

An appeal has been described as the Judicial examination of the decision of an inferior court by a Superior Court. In other words, the appeal Court performs a judicial review of the decision of the lower Court. It is however not every slip committed by a court that will result in an appeal against the judgement being allowed. An error or slip that may have the result of the appeal being allowed must be fatal in the sense that it must occasion a substantial miscarriage of justice. Under the Constitution, the appellate jurisdiction of the Courts can be divided into two: Appeals as of right and Appeal with leave of Court.

Appeals as of right: This type of appeal is a Constitutional right, which does not require the leave or permission of the trial Court or the Court against whose decision a party is appealing. Section 233 and 241 of the Constitution provides the instances in which appeals will lie as of right to both the Supreme Court and Court of Appeal respectively
Appeal with leave of Court: In all other cases where appeal is not as of right, it must be with leave of the appellate court or the court whose decision is to be appealed against. The appellate court may however dispose of any applications for leave to appeal if after consideration of the record of the proceedings, it is of the opinion that the interests of justice does not require an oral hearing of the application.

Other jurisdiction

Section 262 and 267 confer on the Sharia Court of Appeal and the Customary Court of Appeal of the FCT appellate and supervisory jurisdiction in civil proceedings in relation to matters of Islamic personal law and customary law respectively. The High court of Abuja exercises similar jurisdiction in civil and criminal proceedings brought from lower courts under section 257.

Finality of decisions

Worthy of note here is the finality of the decision of the Supreme Court as the highest court in the land, and an appeal cannot lie to anybody or person from its determination. This also means the Supreme Court cannot sit on appeal over its own judgement. Such final decision is binding on all lower courts on issues of law and fact. The lack of ability of courts to overrule their previous decisions is embedded in the principle of functus officio, which means that courts should not revisit their decisions or sit on appeal over their own decisions. The exceptions are when the judgment was gotten by fraud or in an undefended action, the defendant can provide a good reason why the court should revisit the decision in the interest of justice. The Supreme Court can however overrule an earlier decision. The Court of Appeal can also exercise similar Powers in relation to cases where its decision is final.

State courts

The highest court established by the Constitution for the States of the Federation is the High Court, though the Constitution in section 6(5) preserved the power of the Houses of Assembly to establish other courts to exercise jurisdiction at first instance. Appeals lie to it from lower district customary courts, and area Courts, by the operation of law. The jurisdiction of the State High Court is similar to that of the High Court of Abuja.

Composition, qualification and constitution

1. The high court

This is the highest court in the state. It is headed by a Chief Judge assisted by other judges, the number of which is to be prescribed by State law. The Qualification required here is practice in Nigeria for at least ten years. A High Court is duly constituted if it consists of at least one Judge.

2. The sharia court of appeal

This is headed by a Grand Kadi assisted by other Kadis, the number of whom is to be prescribed by a Law of the House of Assembly. The qualification required here is similar to that of the Sharia Court of Appeal, Abuja. The Court is duly constituted with at least three Kadis.

3. The customary court of appeal

This is headed by a President assisted by other Judges, the number of whom is to be prescribed by a law of the House of Assembly. The qualification required is also similar to that of the Customary Court of Appeal, Abuja. The Court is duly constituted with at least three judges of the Court.

Appointment

The Constitution lays down two modes of appointments in relation to the State Courts:

Appointment by the Governor on the recommendation of the National Judicial Council, subject to confirmation by the House of Assembly. The Heads of the various courts are appointed in this manner.
Appointment by the Governor on the recommendation of the National Judicial Council. The assisting Judges/Kadis are appointed in this manner.

The National Judicial Council is advised on its recommendations by the State Judicial Service Commission established in section 197 of the Constitution.

Dismissal

In relation to the removal of Judges before retirement, the method is similar to that of Federal Judges and is two-fold:

Removal by the Governor, acting on an address, supported by two thirds majority of the House, praying for removal for inability to discharge the function of his office, or for misconduct or contravention of the Code of conduct. All the heads of the various Courts are removed in this manner.
Removal by the Governor, acting on the recommendation of the National Judicial Council that the Judicial officer be removed for the same reason. This applies to every other judicial officer not covered by the first method.

The State Judicial Service Commission has the power, subject to the provisions of the Constitution, to recommend to the National Judicial Council, the removal from office of any Judicial officer.

Remuneration

In relation to State Judicial Officers, section 84 of the constitution provides that their salaries, remuneration and allowances shall be prescribed by the National Assembly but must not exceed the amount determined by the RMAFC.

Conduct of business

Before he can function, a State Judicial officer must declare his assets and liabilities and swear to the Judicial oath and oath of allegiance on the 7th Schedule to the Constitution. Like his Federal counterpart, the Chief Judge of the High Court can make rules regulating the practice and procedure of the High Court, subject to any Law of the House of Assembly. In addition, State judges are also immune from prosecution for acts done or words spoken in their judicial capacity.

Tenure and pension rights

By virtue of section 291(2), State judicial officers may retire at the age of sixty but must retire at sixty five years. Any person who has held office as a judicial officer -

(a) for a period of not less than fifteen years shall, if he retires at or after the age of sixty-five years in the case of the Chief Justice of Nigeria, a Justice of the Supreme Court, the President of the court of Appeal or a Justice of the Court of Appeal or at or after the age of sixty years in any other case, be entitled to pension for life at a rate equivalent to his last annual salary and all his allowances in addition to any other retirement benefits to which he may be entitled;
(b) for a period of less than fifteen years shall, if he retires at or after the age of sixty-five years or sixty years, as the case may be, be entitled to pension for life at a rate as in paragraph (a) of this subsection pro rata the number of years he served as a judicial officer in relation to the period of fifteen years, and all his allowances in addition to other retirement benefits to which he may be entitled under his terms and conditions of service; and
(c) in any case, shall be entitled to such pension and other retirement benefits as may be regulated by an Act of the National Assembly or by a Law of a House of Assembly of a State.

Jurisdiction

As has been stated above, jurisdiction generally restricts the judicial powers of a court to particular cases and circumstances. Jurisdiction here can be divided into two classes. Firstly, there is the jurisdiction which pertains to the court as a court of first instance, or of original jurisdiction, and secondly, in the appellate or supervisory role of the Court.

1. Original jurisdiction

Subject to the provisions of S. 251 which deals with jurisdiction of the Federal High Court and other provisions of the Constitution, the State high court has the jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.

2. Appellate and supervisory jurisdiction

Note that section 272 of the 1999 constitution which provides for the original jurisdiction of the High Court also states that the High Court has similar jurisdiction in relation to its appellate and supervisory jurisdiction. The Sharia Court of Appeal of a State has appellate and supervisory jurisdiction in relation to lower Sharia Courts which is to be set up by the State. The Customary Court of Appeal also has similar jurisdiction in civil proceedings involving questions of Customary Law and any other jurisdiction which may be prescribed by the House of Assembly of the State.

Note that by virtue of the power conferred on State legislators to establish Courts in section 6 of the Constitution, Sharia Courts, Customary Courts and magistrate Courts have been established as Courts of subordinate jurisdiction to those established by the Constitution and from which appeal lies as of right to the higher courts.

Supplementary judicial issues

1. Referral of questions of law

This deals with certain general jurisdiction of some courts in relation to interpretation of the Constitution. Section 295 of the Constitution provides that:

Where any question as to the interpretation or application of this Constitution arises in any proceedings in any court of law in any part of Nigeria (other than in the Supreme Court, the Court of Appeal, the Federal High Court or a High Court) and the court is of the opinion that the question involves a substantial question of law, the court may, and shall if any of the parties to the proceedings so requests, refer the question to the Federal High Court or a High Court having jurisdiction in that part of Nigeria and the Federal High Court or the High Court shall
(a) if it is of opinion that the question involves a substantial question of law, refer the question to the Court of Appeal;
(b) if it is of opinion that the question does not involve a substantial question of law, remit the question to the court that made the reference to be disposed of in accordance with such directions as the Federal High Court or the High Court may think fit to give.
(2) Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision.
(3) Where any question as to the interpretation or application of this constitution arises in any proceedings in the Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate.

2. Determination of causes and matters

Section 294 of the Constitution provides generally that every court must deliver its decision or judgement in writing within ninety days of the conclusion of evidence and final addresses, and authenticated copies must be made available to all parties to the case within seven days of such delivery. The purpose of this section is to eradicate the denial of justice through unnecessary lengthy days of trial and judgement. As was noted concerning Ariori v Elemo, delay of over one year before judgement made the Court give a Judgement unrelated to the issue before the Court. See also the case of Alhaji Mika' ilu v The State where the court of appeal allowed an appeal against a judgement delivered Seven months after the tabling of the case.

3. Enforcement of judgment

Section 287 of the Constitution provides that the decisions of the Supreme Court shall be enforced in all parts of the Federation by all authorities and persons and subordinate courts. Notethat the only part of the decision of a Higher Court that is binding is the principle upon which the decision is based, is the ratio decidendi.

In the case of Dalhatu v Turaki, where the trial court refused to follow an earlier decision of the Supreme court, the Supreme Court stated that the action of the lower court amounted to gross insubordination, judicial rascality, recklessness and judicial impertinence.

4. Limitation to exercise of judicial powers

Apart from the general limitations imposed on all authorities and persons under the provisions of section 1 of the Constitution which makes the provisions of the Constitution supreme and all acts contrary to it null and void, section 6(6)(c) and (d) also specifically limit the jurisdiction of the courts. These two paragraphs provide that the judicial powers of the courts:

(c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution;
(d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

Jurisdictional issues also have already limited the powers of particular courts in relation to certain subject matters. This jurisdiction is further Limited by issues such as justiciability of the case and locus standi (standing to sue).

The provisions of section 308 which restricts legal proceedings or service of court processes on executive heads of the various levels of government and their deputies and other laws which make similar provision in relation to members of the Legislature, and the diplomatic community, also have the effect of temporarily limiting the exercise of the judicial powers of the court.

5. Immunity

The question of immunity of judges in the discharge of their functions is not a direct constitutional matter but embedded in Common law and Statute and the courts follow closely the English law development in this area.

The case of Taaffee v Downes was an action against the Lord Chief Justice of the Queen's bench of Ireland. He declined to plead any form of justification for his actions and relied on his position as a Judge to have the action dismissed. The Court, led by Fox J., accordingly struck out the suit based on the provisions of the Immunity Clause.

The position concerning the immunity of judges was also stated in Miller v Senate by De Grey CJ. and by Kelly CB. in Scott v Stansfield. Also, in the case of Sirros v Moore, Lord Denning MR. stated thus: " Ever since the year 1613, if not before, it has been accepted in our Law, that no action is maintainable against a Judge for anything said or done by him in the exercise of a Jurisdiction which belongs to him."

The position under Common law was thus put forward by Lord Denning in the same case where he stated, "Every Judge of the Courts of this Land from the highest to the lowest, should be protected to the same degree... So long as he believes honestly, a case to be within his jurisdiction, he should not be liable." This position has been approved and followed by the Nigerian Courts as seen in Fred Egbe v Justice Adefarasin & Anor.