The Superior Courts

THE SUPREME COURT OF NIGERIA

Established under section 230 of the 1999 constitution, the Supreme Court consists of the Chief Justice of Nigeria and such number of Justices of the Supreme Court, not exceeding 21, as may be prescribed by an Act if the National Assembly.

Appointments

The appointment of the justices of the Supreme Court is made by the President on the recommendation of the National Judicial Council and subject to confirmation of such appointment by the Senate. The Chief Justice of the Supreme Court is also appointee through the same procedure, and section 231 of the constitution makes this provision.

A person may only be qualified to the office of the Chief Justice of Nigeria or a Justice of the Supreme Court if he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than fifteen years. Constitutionally, actual experience is not required to be so appointed, but the practice is usually that whoever is to be appointed must have had substantial experience in the bench or the bar. In appointing the justices of the Supreme Court, there should be justices learned in Islamic personal law and customary law amongst them. A person is deemed learned in Islamic personal law if such a person has a recognized qualification from an institution acceptable to the National Judicial Council, while a person shall be deemed to be learned in customary law if in the opinion of the National Judicial Council, he has considerable knowledge of and experience in the practice of Customary law.

No legal practitioner shall be qualified for appointment as a justice of the Supreme Court whole such a person is a member of the National Judicial Service Commission, the Federal Judicial Service Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja or a Starr Judicial Service Commission. Such a disqualification remains until after a period of three years since the legal practitioner ceased to be a member.

If the office of the Chief Justice of Nigeria becomes vacant, or the incumbent is unable to perform his functions, the President is required to appoint the most senior Justice of the Supreme Court to perform the functions until a permanent replacement has been chosen or until the incumbent resumes office. The appointment shall lapse after three months unless the National Judicial Council advises otherwise, and the president may not re-appoint a person whose appointment has lapsed.

Jurisdiction

As the highest court in Nigeria, the Supreme Court is in the most basic aspect a court of appeal. However, it exercises some original jurisdictions in civil matters. Section 232 of the constitution provides that the Supreme Court shall have exclusive jurisdiction in the settling of disputes between states and between any state and the federal government. Additionally, the constitution vests the National Assembly with the authority to include other matters in the jurisdiction of the Supreme Court, so long as those matters are civil in nature and not criminal. The National Assembly enacted the Supreme Court (Additional Original Jurisdiction) Act in 2002 to add to the jurisdiction of the Supreme Court. The Supreme Court shall also settle disputes between:

• the National Assembly and the President
• The National Assembly and the State House of Assembly
• The National Assembly and the State of the Federation.

It should also be noted that the Supreme Court may only act to settle legal dispute in the exercising of its jurisdiction, and has no power to give merely advisory or academic opinions however beneficial.

In its appellant jurisdiction, the Supreme Court has the authority to entertain appeals from the Court of Appeal in the following cases where an appeal shall lie as of right.

1. Decisions in any civil or criminal proceeding, where the ground of appeal involves questions of law alone.
2. Decisions in any civil or criminal proceedings in questions as to the interpretation or application of the constitution.
3. Decisions in any criminal proceedings in questions as to whether any of the provisions of Chapter IV, dealing with fundamental rights, has been, is being, or is likely to be contravened in relation to any person.
4. Decisions in any criminal proceedings in which any person has been sentenced to death by the Court if Appeal, or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.
5. Decisions in any question-
   1. whether any person has been validly elected to the office of President or Vice-President under the constitution.
   2. whether the term of the office of President or Vice-President has ceased.
   3. whether the office of President or Vice-President has become vacant.
6. Such other cases as may be prescribed by an Act of the National Assembly.

In all other cases, any party who seeks to appeal to the Supreme Court must be granted leave by either the Court of Appeal or the Supreme Court.

Constitution

In exercising its jurisdiction conferred upon it by the constitution or any law, the Supreme Court shall ordinarily be duly constituted if it consists of not less than five justices of the court. However, the court shall be constituted by seven justices in the following special cases.

• Where the court is sitting to consider an appeal on questions as to the interpretation or application of the constitution.
• Where the court is sitting to consider an appeal as to whether any of the provisions of Chapter IV of the constitution, dealing with fundamental rights, has been, is being or is likely to be, contravened in relation to any person.
• Where the court is sitting to exercise its original jurisdiction in accordance with the constitution.

While not constitutionally required, the court will sometimes use seven judges while sitting over some other important cases or when considering whether to overrule a previous decision by the court.

THE COURT OF APPEAL

Section 237 of the constitution establishes a Court of Appeal comprising of the President of the Court if Appeal and such number of justices of the Court of Appeal not less than forty-nine as may be prescribed by an Act of the National Assembly. At least three of the justices must be learned in Islamic law and at least three learned in customary law.

Appointments

The President of the Court and all other justices of the Court if Appeal are appointed by the President on the recommendation of the National Judicial Council. In the case of the President of the court, the appointment is subject to confirmation by the senate, while no such conformation is required for other justices. To be qualified for appointment as a justice of the Court of Appeal, such a person must be qualified to practise as a legal practitioner and must have been so qualified for twelve years.

As with the Supreme Court, a legal practitioner is not qualified to be appointed as a justice of the Court of Appeal while still a member of the National Judicial Service Commission, the Federal Judicial Service Commission, the Judicial Service Committee of the Federal Capital Territory, Abuja or a State Judicial Service Commission. Such disqualification remains for a period of three years since the legal practitioner ceased being a member.

If the office of the President of the Court of Appeal becomes vacant, or the incumbent is unable to perform his functions, the Executive President is required to appoint the most senior Justice of the Court to perform the functions until a permanent replacement has been chosen or until the incumbent resumes office. The appointment shall lapse after three months unless the National Judicial Council advises otherwise, and the president may not re-appoint a person whose appointment has lapsed.

Jurisdiction

The Court of Appeal is a court of appeal, just as its name suggests. However, it has limited original jurisdiction in election cases. It has originally jurisdiction in the following.

• Whether any person has been validly elected to the office of the President or Vice-President under the constitution.
• Whether the term of office if the President or Vice-President has ceased
• Whether the office of the President or Vice-President has become vacant.

In its appellate jurisdiction, the Court of Appeal has exclusive jurisdiction to hear and determine appeals from the federal high court, the high court of the federal capital territory, the high court of a state, the sharia court of appeal of the federal capital territory, the sharia court of appeal of a state, the customary court of appeal of the federal capital territory, the customary court of appeal of a state and a court martial or other tribunals as may be prescribed by an Act of the National Assembly.

Appeals lie as of right to the Court of Appeal from the decisions of the Federal High Court or the High Court of a State in the following cases.

1. Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance.
2. Decisions in any civil or criminal proceedings, where the ground of appeal involves questions of law alone.
3. Decisions in any civil or criminal proceedings on questions as to the interpretation or application of the constitution.
4. Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of the constitution has been, is being, or is likely to be, contravened in relation to any person.
5. Decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a death sentence.
6. Decisions made or given by the Federal High Court it a High Court-
   1. where the liberty of a person or the custody of an infant is concerned
   2. where an injunction or the appointment of a receiver is granted or refused
   3. in the case of a decision determining the case of a creditor or the liability of a contributory or other officer under any enactment relating to companies in respect of misfeasance or otherwise
   4. in the case of a decree nisi in the matrimonial cause of a decision in an admiralty action determining liability and
   5. in such other cases as may be prescribed by any law in force in Nigeria.

In all other cases, any party that desires an appeal must seek the leave of either the high court or the Court of Appeal.

Appeals lie as of right from decisions of a Sharia Court of Appeal to the Court of Appeal in civil proceedings with respect to any question of Islamic personal law which the Sharia Court of Appeal is competent to decide. Similarly, appeals lie as of right from the decisions of a customary court of appeal to the court of appeal in any civil proceedings with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly.

Constitution

The Court of Appeal is duly constituted by a panel of not less than three justices of the court of appeal. Where it is to pronounce over an appeal from the Sharia Court of Appeal, it must consist of three justices learned in Islamic personal law. Where it is to pronounce on an appeal from the customary court of appeal, it is to have three justices learned in customary law sitting on the panel.

FEDERAL HIGH COURT

The Federal High Court is established under section 249 of the constitution, and it consists of the Chief Judge of the Federal High Court and such number of judges of the Federal High Court as may be prescribed by any Act of the National Assembly. There is only one Federal High Court, divides into Judicial Divisions as may be determined by the Chief Judge of the Federal High Court.

Appointments

Appointment to the office of the Chief Judge is made by the President, on the recommendation of the National Judicial Council and with confirmation by the Senate. For the other judges of the Federal High Court, the appointment is to be done by the President on the recommendation of the National Judicial Council. To be qualified for the office of Chief Judge or as a judge of the Federal High Court, such a person must be qualified to practise as a legal practitioner in Nigeria, and must have been so qualified for not less than ten years.

If the office of the Chief Judge of the Federal High Court becomes vacant, or the incumbent is unable to perform his functions, the President is required to appoint the most senior judge of the Court to perform the functions until a permanent replacement has been chosen or until the incumbent resumes office. The appointment shall lapse after three months unless the National Judicial Council advises otherwise, and the president may not re-appoint a person whose appointment has lapsed.

Jurisdiction

The jurisdiction of the Federal High Court is contained in section 251 of the constitution. Dispute has arisen over the exclusivity of the jurisdiction of matters contained in paragraphs (q), (r) and (s). In interpreting a similar provision in the 1979 constitution, the court held in Ali v Central Bank of Nigeria that there was nothing is paragraphs (r) and (s), equivalents of paragraphs (q) and (r) in the 1999 constitution, to suggest that both the Federal High Court and the State High Court have concurrent jurisdiction to entertain matters specified in that section. According to the Supreme Court in National Electric Power Authority v Edegbero, the aim of paragraphs (q), (r) and (s) was to vest exclusive jurisdiction in the Federal High Court in matters in which the Federal Government or any of its agents is a party. This exclusivity means that the State High Courts would no longer have Jurisdiction in civil causes or matters arising from the administration, management and control of the Federal Government, the operation and interpretation of the Constitution as it affects the Federal Government as well as any action or proceedings for a declaration or injunction affecting the validity of any executive or administrative action or decisions by the Federal Government.

It was also held in Jamal Steel Structures Ltd v African Continental Bank Ltd that while actions for banking measures can only be brought in the Federal High Courts, actions relating to customer-bank relations may be brought in State High Courts.

Constitution

For the purpose of exercising any jurisdiction conferred upon it by the constitution or as may be conferred upon it by an Act of the National Assembly, the Federal High Court has all the powers of the High Court of a State. Also, it requires only a single judge of the court to exercise its jurisdiction.

HIGH COURT OF A STATE

Section 270 of the constitution establishes a High Court for each State of the Federation. A state Hugh Court consists of a Chief Judge and such number of Judges as may be prescribed by a Law of the House of Assembly of the State.

Appointments

The appointment into the office of the Chief Judge of a State High Court is made by the Governor of the State concerned in the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State. Appointment to the office of a judge of a State High Court is made by the Governor on the recommendation of the National Judicial Council, with need of ratification by the State House of Assembly. To be qualified as a judge of a State High Court, such a person must be qualified to practise as a legal practitioner, and must have been so qualified for at least ten years.

If the office of the Chief Judge of a State High Court becomes vacant, or the incumbent is unable to perform his functions, the Governor of that state is required to appoint the most senior judge of the Court to perform the functions until a permanent replacement has been chosen or until the incumbent resumes office. The appointment shall lapse after three months unless the National Judicial Council advises otherwise, and the Governor may not re-appoint a person whose appointment has lapsed.

Jurisdiction

Subject to the provisions of the constitution, the High Court if a State has jurisdiction to hear and determine any civil proceedings in which the existence of extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue. The court also has jurisdiction 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.

It should be noted that the jurisdiction of the State High Court is not “unlimited”, but is instead subject to limitation by section 251 of the constitution which provides for the jurisdiction of the Federal High Court. The jurisdiction of the State High Courts is provided for in section 272 of the constitution. Also, the jurisdiction of the State High Courts with respect to election matters, status of political office holders and membership of legislative houses is non-existent under the 1999 constitution.

Constitution

For the purpose of hearing a matter which comes before the court, the court shall be duly constituted if there is at least or judge of the court.

SHARIA COURT OF APPEAL OF A STATE

The existence of the Sharia Court if Appeal of any state which requires it is provided for by section 275 of the constitution. The court consists of a Grand Kadi and any such other number of Kadis as may be prescribed by the State House of Assembly.

Appointments

The Grand Kadi of the Sharia Court of Appeal is to be appointed by the Governor of the state based on the recommendation of the National Judicial Council and to be confirmed by the State House of Assembly. For the appointment of other Kadis, it follows the same process as for the Grand Kadi but without the confirmation by the State House of Assembly.

A person is not qualified to hold office as a Grand Kadi of the Sharia Court of Appeal of a State unless:

1. 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 recognized qualification in Islamic law from an institution acceptable to the National Judicial Council; or
2. he has attended and has obtained a recognized 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
   1. he either has considerable experience in the practice of Islamic law, or
   2. he is a distinguished scholar of Islamic law.

As can be seen from (b) above, a person may be appointed as a Kadi in a Sharia Court of Appeal even though such a person is not qualified to practise as a legal practitioner.

If the office of the Grand Kadi of a State Court of Appeal becomes vacant, or the incumbent is unable to perform his functions, the Governor of that state is required to appoint the most senior Kadi of the Court to perform the functions until a permanent replacement has been chosen or until the incumbent resumes office. The appointment shall lapse after three months unless the National Judicial Council advises otherwise, and the Governor may not re-appoint a person whose appointment has lapsed.

Jurisdiction

The jurisdiction of the Sharia Court of Appeal of a state is listed in section 277 of the constitution, with its jurisdiction being appellate and supervisory in nature. The State House of Assembly may also confer additional jurisdiction upon the court.

The jurisdiction of the court is subject to the existence of a connecting factor linking one of the parties to the action to Islamic law. Where there is no connecting factor, then the parties may not be judged using Islamic law by the Sharia Court of Appeal, and so the court cannot entertain such cases.

Constitution

The Sharia Court of Appeal of a State shall be duly constituted when it has at least three Kadis of the court presiding over a matter which has been brought before it.

CUSTOMARY COURT OF APPEAL OF A STATE

The customary court of appeal for any state which so requires one is provided for under section 280 of the constitution. The court consists of a president and such number of judges as may be prescribed by the House of Assembly of the State.

Appointments

The Governor of the state appoints the President of the court based on the recommendation of the National Judicial Council and the confirmation of the State House of Assembly. The other judges of the court are appointed through the same process, but without the need of confirmation of the State House of Assembly.

A person shall not be qualified to hold the office of a President or a judge of the Customary Court of Appeal of a state except:

1. he is a legal practitioner in Nigeria and 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
2. in the opinion of the National Judicial Council he has considerable knowledge of and experience in the practice of customary law.

If the office of the President of a Customary Court of Appeal of a state becomes vacant, or the incumbent is unable to perform his functions, the Governor of that state is required to appoint the most senior judge of the Court to perform the functions until a permanent replacement has been chosen or until the incumbent resumes office. The appointment shall lapse after three months unless the National Judicial Council advises otherwise, and the Governor may not re-appoint a person whose appointment has lapsed.

Jurisdiction

A customary court of appeal of a state exercises appellate and supervisory jurisdiction in civil proceedings involving questions of customary law. Such appellate and supervisory jurisdiction covers such questions as may be prescribed by the House of Assembly of the State for which it is established.

Constitution

A Customary Court of Appeal of a state shall be duly constituted if it is comprised of at least three judges of the court.

NATIONAL INDUSTRIAL COURT

The National Industrial Court was established pursuant to section 20 of the Trade Dispute Act 2004. It was originally an inferior court; however, it became a superior court in 2010 through constitutional amendment. The court exists to settle trade disputes and to interpret collective agreements. The court comprises of the President of the court and not less than twelve judges. All members must be of good standing and be well-acquainted in or vast in employment conditions in Nigeria.

Appointment is made by the President if Nigeria in conduction with the Federal Judicial Service Commission. The President of the court must have either been a judge of a court of unlimited jurisdiction in civil and criminal matters in some part of the commonwealth or be qualified for admission as an advocate in Nigeria and must have been so qualified for not less than ten years. For ordinary judges of the court, there is no additional requirement besides being of good standing and being well acquainted with employment conditions in Nigeria.

Jurisdiction

The Court has exclusive jurisdiction in civil causes and matters arising from workplace, the conditions of service including health, safety and welfare of employees. The court also has exclusive jurisdiction in civil matters relating to or connected with or arising from Factories Act, Trade Dispute Act, Trade Unions Act, Workmen’s Compensation Act it any other act or law relating to labour, employment, industrial relations, workplace or any other enactment replacing the acts or laws.

Appeals on the decision of the court lie as of right to the Court of Appeal on questions relating to Chapter IV of the 1999 constitution.