TABLE OF CASES
A.G.
Cross Rivers State V Esin (1991) 6 N.W.L.R (Pt. 197) 365
A.G.
Federation V. Atiku Abubakar (2007) All F.W.L.R (pt. 375) 405
A.G.
Lagos State V. A.G. Federation (2004) 18 N.W.L.R (pt. 904).
A.S.H.A
V Tijani (2012) 8 N.W.L.R. (pt. 1303) 483
Adebayo
V Kolawole (1985) 6 NCLR 709
Agakaiye
V. Idehai (1994) 18 N.W.L.R (Pt. 364) 504
Amaechi
V. INEC (2008) 5 NWLR (pt. 1080) 227
Biishi
V Judicial Service Commission (1991) 6 N.W.L.R. (Pt. 177) 331
Bronik
Motors V Wema Bank (1985) 6 NCLR 1
Buhari
V INEC (2008) 19 N.W.L.R (pt. 1120) 246
Commandclem
Nig. Ltd V Mobil Producing Nigeria Unlimited (Unreported) Suit No: S.C. 69/2011
decided April 8, 2013
Egbuniwe
V. F.G.N (2010) 2 N.W.L.R. (Pt. 1178) 348
Erelu-Habeeb
V National Judicial Council (2012) 13 NWLR (pt. 1318) 423
Ikharaiale
V. Okoh (2009) 12. N.W.L.R. (Pt 1154) 1
Inakoju
V. Adeleke (2007) 27 NSCRR 958
Ladoja
V. INEC (2007) NWLR (pt. 1047) 115
Lakanmi
& Anor V. A.G. Western State (1971) I.U.L.R. 201
N.N.P.C
V Lutin Investment Ltd & Anor (2006) 2 N.W.L.R (pt. 965) 506
Nabaruwal
V Offordili (2005) 1 FWLR (pt. 248) 858
Obi
V INEC (2007) 11 N.W.L.R (Pt. 1046) 565
Ohaji
V. Unamka (2011) 4 N.W.L.R. (pt. 1236) 148
Olisa
Agbakoba V F.G., NJC & National Assembly, Unreported Suit No. FHC
(ABJ/CS/63/2013).
SBM
Serv. (Nig.) Ltd & Ors V Okon & Ors (2004) 9 N.W.L.R (pt. 879) 529
Sirros
V Moore
The
Secretary, Iwo
Ugwu
V. Ararume (2007) 12 NWLR (Pt. 1048) 367
Umanah
V Attah (2006) 17 N.W.L.R (Pt 1009) 503
TABLE OF STATUTES
Constitution
of the Federal Republic
of Nigeria
Foreign
Jurisdiction Act, 1843, 1893
National
Judicial Council Guidelines and Procedural Rules 2003
Ordinance
No. 11 1863
Supreme
Court Proclamation Order No. 6, 1910
United
Nations Basic Principles.
ABBREVIATION
All
F.W.L.R All Federation Weekly Law Reports
CFRN Constitution of the Federal
Republic of Nigeria
CJN Chief Justice of Nigeria
FJSC Federal Judicial Service Commission
FWLR Federation Weekly Law Reports
J.S.C Judicial Service Commission
N.J.C National Judicial Council
NBA Nigerian Bar Association
NCLR Nigeria
NICN National Industrial Court of
Nigeria.
NSCQR Nigerian Supreme Court Quarterly Reports
NWLR Nigerian Weekly Law Reports
U.I.L.R University
of Ife
ABSTRACT
The Nigeria
This research will focus on the procedure
for the appointment of Judicial Officers in Nigeria
and therefore intended to critically examine the Judicial arm of government and
Laws regulating Judicial officers in Nigeria
Chapter one which is the introductory
chapter will consider the three arms of government i.e. separation of powers
and the Nature of Judicial Power.
Chapter two will bother on the
qualification and procedure for the appointment and removal of judicial
officers and the challenges they face in the course of duty.
Chapter three will dwell on the
independence of the Judiciary.
Chapter four which is the concluding
part summarizes this research and includes some recommendation to remedy the
situation substantially if not totally.
CHAPTER
ONE
INTRODUCTION
1.0. Background to the Study
The theme of
this work is apt in the light of the current national discourse, bothering on
the judiciary and justice delivery. One of such discourse is the unresolved
appointment of the chief Judge of Rivers State [1]caused
by the row between the Rivers State Government and the National Judicial
Council. To every human being, all over the world; justice is the oxygen of a
good life. Socio-political and economic existence depend on proper delivery of
this invaluable commodity.1
The evolvement
of the judiciary can be traced to the principle of separation of powers. John
Locke and Baron de Montesquieu dominated the early formulation of the doctrine
of separation of powers[2].
In fashioning this political formulation, the renowned jurist, Locke having
observed the prevailing political conditions in England
The Nigerian
Judiciary has in recent times come up against a bulwark of onslaught against
its integrity and an erosion of its public image ranging from accusations of
financial material compromise, manipulations from the political elitist class
and weak agencies. Against the backdrop of recent public perceptions on the
judiciary, the following are the key areas upon which this essay shall be built:
separation of powers, the general process appoints of the Nigerian bench;
tenure of judges and independence of the judiciary as well as the nature of
judicial power.
1.1
Separation of Powers
The doctrine
of separation of powers, developed in the 17th century in an effort
to ensure division of state authority into legislative, executive and judicial
function and the performance of such functions by separate branches of
government. Among the components of separation of powers are the trias politica
doctrine and the establishment of checks and balances on the actions of the
various branches of government. Motesquieu argues that the reason for the
separation of powers is that there can be political freedom in a country where
one and the same person or body of persons makes the laws, implements them, and
acts as arbiter when they are contravened.[4]
In his words he posits:
[5]
Political
liberty is to be found only when there is no abuse of power. Experience shows
that every man invested with power will abuse it by carrying as far as it will
go. To prevent this abuse, it is necessary from the nature of things that one
power should be a check on another… When the legislature, Executive and
Judicial power are united in the same person or body…, there can be no
liberty…Again there is no liberty if the judicial power is not separated from
the legislative and executive… There would be an end of everything if the same
person or body, whether of the nobles or of the people, were to exercise all
three powers.
Separation
of powers means that different persons or different bodies of persons should
exercise the powers of the three arms of government i.e., the legislature,
executive and judicial arms. Our own form of separation of powers is fashioned
after the American system. The idea of this system is the provision of
effective checks and balances in the government structure itself. Under the
principles of separation of powers enshrined in our constitution, the three
organs of government are independent, equal and co-ordinate. No organ is controlled
by the other, although each acts as a check on the other. By virtue of sections
4, 5 and 6, the powers of the federal Republic of Nigeria
Separation
of powers as enshrined in our constitution has been applied by the courts in
the celebrated case of Lakanmi & Anor. V A.G Western State[7]
the Supreme Court observed:
We
must here revert again to the separation of powers, which the learned
Attorney-General himself did not dispute, is still the structure of our system
of government. In this absence of anything to the contrary it has to be
admitted that the structure of our Constitution is based on the separation of
powers –the Legislature, the Executive and the judiciary. Our Constitution
clearly follows the model of the American Constitution. In the distribution of
powers, the courts are vested with the exclusive rights to determine
justiciable controversies between citizens and the state.
The Court of Appeal formulated some
fundamental principles to explain why separation of powers is desirable, in
these words.
The
doctrine of separation of powers as enshrined in the constitution ensures the
independence of each of the arms of government, that is, the legislature, the
executive and the judiciary. Each acts separately but within the confines of
the Constitution”[8]
Since the
government of Nigeria
Accordingly
neither the executive nor the legislature is expected to usurp the judicial
functions/powers. The court of appeal per Agho J.C.A states this position thus:
The
constitution is clear as to who should perform judicial acts. And since it is
the exclusive function of the judiciary to exercise judicial function, any member
of the executive who interferes with those functions must be prepared to face
the consequence of such interloping conduct by way of an action by a person
aggrieved.[10]
The judiciary
should not also usurp the powers of the executive arm. In Ohaji v Unamka[11]
it was held that where there is a statutory provision for making an order or a
declaration and making same is reposed in a named office, whether minister or a
commissioner, or indeed whether the President of the Republic or Governor of a
State, such function cannot be usurped by the court. The furthest a court can
go is to declare as to the validity or otherwise of an order or declaration of
a public officer, but the court has not got the jurisdiction to take over the
functions of such public officer by making its own order or declaration as
against the statutory provisions.
However
a court will strike down a law or act of the legislative or executive
respectively, where the legislative or the executive in the exercise of their
legislative or executive duties, breaches any constitutional provision in
respect of a particular matter they are dealing with[12].
This is called judicial intervention which is used to prevent breach of the
constitution. Yakubu J.C.A posits:
It
is because of the non-compliance with the provision of section 100(5) of the
1999 constitution by the appellants as contended vide the 1st-22nd
respondent’s notice, in enacting the Law no. 6 of 2008, that the said law can
be faulted.[13]
There is an
extent to which separation of powers is desirable. Although powers may be
separated, the interest or order and progress demands that such powers be at
the same time co-ordinate. It is only essential that one organ of government
does not have a controlling influence over another. As it has been said, the
theory of predominance is the controlling factor. As long as one organ of
government does not and cannot dominate the proceedings of another organ of
government, there is separation of powers.[14]
The
constitution and indeed the other Republican Constitutions of 1963 and 1979 of
the Federal Republic of Nigeria adopts in principle the concept of separation
of governmental powers and the exercise of these powers by three organs, namely;
the Legislature, the executive and the Judicature.[15]
As earlier stated chapter 1, part II, of the constitution deals with this
separation of powers.
I shall now consider the workings of
the doctrine in our legal system.
1.1.1 Checks and Balances
The role
played by the system of checks and balances is a very important one in a democratic
state as it guarantees that no single branch of government can become too
powerful and end up usurping the functions or powers of the other branches.
Moreover, no single branch of government can function in complete independence
between the three branches. In other words, an “absolute” theory of separation
of powers in which one branch functions in complete isolation is not viable.[16]
The most interesting aspect of this system is that the powers of one branch can
be challenged by another branch and this is what the system of checks and
balances is all about, i.e., one branch serves as a watch dog or safeguard
against any form of irregularity by the other branch (es).[17]
The
legislature checks over the judicial arm as for example, it has power to ratify
the appointment of some members of the judiciary. It also checks on the
executive in various ways. For instance, it may override the executive vetoes
on bills passed and may remove members of the executive arm through
impeachment.[18]
The
executive exercise checks on the legislature in a number of ways. It also has
the ability to check the judiciary, the President or Governor as the head of
the executive, as the case may be, is vested with powers to appoint judges in
the courts.[19]
The
courts may exercise checks and balances on the executive when it gives an order
or judgment as to the constitutionality of executive actions. It also checks
over the legislature with its power to determine the constitutionality of
legislature acts.[20]
Politics
in Nigeria
1.1.2 Judicial Review
Judicial
review is the power of a court to examine the acts of the other organs of
government, and uphold them or invalidate them as may be necessary.[21]
The court exercises this power on the ground of unconstitutionality, illegality,
irrationality or procedural impropriety and so forth.[22]
A good example where the courts have review executive action is illustrated in
the case of A.G. Lagos State v. A.G. Federation,[23]
where it was alleged that the president withheld the statutory allocation that
was due to Lagos State from the Federation Account. The Supreme Court in
exercise of its powers of judicial review, declared the presidential act as
unconstitutional, null and void.
The current
situation in Nigeria
1.2 Judicial Power
Judicial power
is the power which the state exerts in the administration of sjustice, in
contra-distinction from the power it posseses to make laws and the power of
executing them.[27]
The judicial powers of Nigeria
are vested in Nigeria
Since the
judicial power of the Nigerian State is vested in the courts. I will examine
the historical antecedent of court in Nigeria
1.3 Historical
Origins of the Judicial System in Nigeria
Before the
coming of the Europeans, the various indigenes people of Nigeria Nigeria
In 1863, by
Ordinance No 11 of that year, the Supreme Court of Lagos England England
After the amalgamation
of 1914, provincial courts were abolished and in its place the High Courts was
established, below it were the Magistrate court and Native court, which
remained at the bottom of the judicial hierarchy. The Supreme Court exercised
appellate jurisdiction over the High court…until 1954, appeals from the Supreme
Court lay at the West African Court of Appeal, but later lay directly after
that year to the Privy Council. In that same year a Federal Supreme Court was
established presided over by a chief justice of the federation.
In 1975, in
order to meet the need for cases involving the revenue of the federal
Government, the Federal Revenue
Court
Against this
historical background of the Nigerian judiciary, I now proceed to deal with the
subject matter of judicial power. As highlighted above the judicial power of
the federation pursuant to s.6 of the constitution is vested in the judicature
exclusively.
It is
imperative at this stage to know what is meant by judicial powers. In Nabarumal
v Offordili the court of Appeal opined that “judicial power refers to the ability,
the function of the court”.[33]
Judicial power according to Edeko “means
the power of a court to decide and pronounce a judgment and carry it into
effect between persons and parties who bring a case before it for decision.”[34]
In Bronik
Motors v Wema Bank[35]
Idigbe J.S.C saw the need to differentiate between judicial power and
jurisdiction of a court. He said:
“Although the terms judicial power and
jurisdiction are frequently used interchangeably and jurisdiction is defined as
the power to hear and determine the subject matter in controversy between
parties to a suit there is a clear distinction between the two concepts,…
judicial power which is the totality of powers a court exercise when it assumes
jurisdiction and hear a case.” Judicial power, as is well known is … also
co-existence with power of the state to administer public justice and make laws
and execute them as well.
Nwabueze on
his part observed that judicial power necessarily implies a power to give a
binding decision or determination. He further posits that proceedings, whatever
their nature, if they do not result in a determination or decision, the
function is not judicial.[36]
Nwabueze
forever argued that:
The
definition of judicial power purely from the standpoint of courts strictu sensu
may be objectionable on the ground that it imposes a narrow conception which is
out of harmony with the classification of functions for the purposes of
administrative Law.[37]
The above notwithstanding
a definition purely from the stand point of the courts is apt, because as this
work is concerned with the role of the judicial arm in government. Secondly for
the purpose of differentiating judicial powers from executive power and legislative
power, only a strict definition of judicial power is apt.
The purpose of
judicial power is to administer Justice in individual cases between litigants.
Traditionally, judicial power must be exercised so as to do justice in
individual cases. “The judge must not allow himself to be influenced by any
other consideration at all”.[38]
This view is too rigid, it fails to distinguish the various dimensions of
public policy, and the proportions in which it may be combined with legal
principles or objective standard in any given case. Public policy is not
subjective, it is capable of objective ascertainment as the community’s
collective sense of right and wrong. A just application of public policy in decisions
of courts may eventually establish a body of principles to be used in the
determination of future cases.[39]
On a final
note, judicial powers are exclusive to the court. If a power is exclusively
judicial, then without specific authority in the constitution, it cannot be
conferred on any person or authority other than the court,[40]
for otherwise will amount to a usurpation of judicial power which is
unconstitutional and contrary to the doctrine of separation of powers.
However the
constitution itself imposes a number of limitations on the judicial powers of
the courts. Under s.6 (6) (L) (d) of the constitution, the judicial powers of
the court shall not except as otherwise provided by the constitution, extend to
any issue or question as to whether any act or 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 principle of state policy set out in
chapter 2 of the constitution. What that means is that if the judiciary must
exercise its powers on matters before it, it must be a matter that is justiciable.
One must note
that separation of powers is not absolute, it does not mean that each arm of
government must operate in a watertight compartment. Though the judicial arm ought
to be manifestly detached from the other two arms, the legislature and the
executive as a matter of necessity need to work in close and harmonious collaboration
with each other in other to serve the interests and welfare of the citizenry.
If we must
guard against ills like avaricious and ambitions self-serving behaviour and
inefficient performances of functions as well as abuse of power, separation of
powers doctrine is the answer. The doctrine will not only justify but will also
ensure independence of the Judiciary. It provides a basis for the checks and
balances which protects liberty now and in the future.[41]
What is clear is that like the American model the doctrine of separation of
powers as practiced in Nigeria
In Nigeria
[1]
Okey Wali, President of the Nigeria Bar Association, being a welcome address
delivered at the opening ceremony of the NBA Judiciary Committee, Judicial
Reforms Conference holiday at Transcorp Hilton Hotel, Abuja
[2] Edeko, S.E., Fundamental Issues
in Nigerian Constitutional Law ,
Benin
[3]
Guobadia, Osahon O., “The Relevance of the Judiciary in a Democratic Nigeria
[4] Edeko op
eit, 65
[5] Espirit
Des Lois (Spirit of the Law) chapter 11, 3-6, cited in Ese Malenii, The
Nigerian Constitutional Law, Lagos
[7] (1971) 1
U.I.L.R 201
[8] A.S.H.A
v Tijjani (2012) 8 N.W.L.R. (Pt. 1303) 483 at 513, Paras. A-B
[9] (2009)
12 N.W.L.R (Pt.1154) I at 36 Paras. G-H per Shoremi, J.C.A.
[10]
Egbuniwe v F.G.N (2010) 2 N.W.L.R (Pt. 1178) 338 at 368
[11] (2011)
4 N.W.L.R (Pt. 1236) 148, see also Agakaiye v. Idehai (1994) 18 N.W.L.R (Pt.
364) 504
[12]
A.S.H.A. V Tijjani supra
[13] ibid
[14] Ben, O.
Nwabueze, Judicialism in Commonwealth Africa, London
[15]
Udeechukwu, U.N., “The Courts and Politics in Nigeria Today”, Being the text of
paper presented at the National Conference on Nigerian Government and Politics,
1999-2004, at the University of Nigeria, Nsukka on the 22nd day of
April, 2004,1
[16] Obafemi
Awolowo, Separation of Powers Among the Three Arm of Government,” Voice of
Courage, 172-175 in Ese Malemi opcit.
[17] Kelly
Marti, “American History a Constitutional Checks and balances”, available at
http: americanhistory.about.com/od/usconstitution/a/checksbalance.htm (accessed
15/08/2014).
[18] See ss.
100(5), 188, 58(5) and 143of the 1999 Constitution.
[19] See ss.
231, 238 and 271 of the Constitution
[20]
A.S.H.A. V Tijjani Supra
[21] Ese
Malemi, opeit, 314
[22] Ajepe,
Taiwo Shehu and Mohammed, M.Akanbi, “Modelling Separation For Constitution: The
Nigerian Approach”, Journal of Law, Policy and Globalisation, vol. 3 (2012) 24
[23] (2004)
20 NSCQR 99, (2004) 18 NWLR (Pt. 904) 1, A.G. Federation v. Atiku Abubakar
(2007) All F.W.L.R (pt. 375) 405
[24] Ajepe
and Mohammed opcit, 27
[25]
See Inakor v. Adeleke (2007) 27 NSCQR 958, Lodga v INEC (2007) N.W.L.R (Pt. 1047) 115
Discipline in Nigeria
(2012) 171.
[27]
B.O Nwabueze Opcit, 1
[28] See s.6
of the Constitution.
[29] Yusuf
Ali, “The Evolution of Ideal Nigerian Judiciary in the New Millennium”, Nigeria
[30] Ibid
(see Yusuf Ali generally for the history of the judiciary)
[31] Federal Revenue Court
[32] The
Third Alteration Act, 2010 established the NICN as a Supreme Court of record
with Concurrent Jurisdiction with the High Courts.
[33] (2005)
1 FWLR (Pt. 248) 858 at 878
[34] Edeko,
Opacit , 185
[35] (1985)
6 NCLR 1
[36]
Nwabueze opcit, 2
[37] Ibid,
14-15
[38] Ibid, 7
[39] See the
decision of the Supreme Court per Ogbuagu J.S.C in N.N.P.C v Lutin Investment
Ltd & Anor (2006) 2 NWLR (Pt. 965) 506; Comandelem Nig. Ltd v. Mobil
Producing Nigeria Unlimited, Suit No: S.C. 69/2011 decided April 8, 2013. Available
online at cominity.vanguardngr.com (Accessed September 8, 2014)
[40]
Nwabueze opcit, 10
[41]
Ogoloma, Fineface, “ The Theory of Separation of Powers in Nigeria
CHAPTER
TWO
2.0 Appointment of Judicial Officers
There
is a need for the judge to possess the necessary professional skill,
impartiality as well as integrity. These are qualities that are essential to
the successful discharge of the judicial function expected of him. S. 291 (1)
of the Constitution States that judicial officers in Nigeria
2. The General Process of Appointment
Section
230 of the Constitution of the Federal Republic of Nigeria 1999 states as
follows:
1.
There shall be
Supreme Court of Nigeria
2.
The
appointment of a person to the office of a justice of the Supreme Court shall
be made by the President on the recommendation of the National Judicial Council
subject to confirmation of such appointment by the senate.
3.
A person shall
not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court,
unless he is qualified to practice as a legal practitioner in Nigeria
4.
If the office
of Chief Justice of Nigeria is vacant or if the person holding the office is
for any reason unable to perform the functions of the office, then until a
person has been appointed to and has assumed the functions of that office, or
until the person holding the office has resumed those functions, the president
shall appoint the most senior justice of the Supreme Court to perform those
functions.
237 (1) There shall be a Court of
Appeal.
238
(1) The Appointment of a person to the office of President of the Court of Appeal
shall be made by the President on the recommendation to the National Judicial
Council subject to confirmation of such appointment by the Senate.
Subsections (2) and (3) of S. 238 have
substantially similar provisions with S. 230 (2) (3) except that it provides
post call qualification of twelve years for justices of the Court of Appeal.
Sections
250, 256, 261, 266 and 271[2]
makes a similar provisions in respect of judges of the Federal High, High
court, FCT, Sharia or Customary Court of Appeal and States High Courts. One
common thread that runs through these provisions is that the appointment to the
specified cadre of the Bench is made by the relevant Executive (President or
Governor), on the recommendation of the National Judicial Council (NJC) and subject
in certain instances to confirmation by the Legislature, State or Federal.
The
appointment of a person to the office of a Justice of the Supreme Court or
Court of Appeal, a judge of the Federal High Court, the High Court of the FCT, Abuja Customary Court of Appeal FCT , Abuja
By
virtue of paragraph 21 of the 3rd schedule to the 1999 constitution,
the Federal Judicial Service Commission (FJSC) shall submit a list of persons
for appointment to the offices of the Chief Justice of Nigeria, the justices of
the Supreme Court, the President and Justices of the Court of Appeal, the Chief
Judge and Judges of the Federal High Court. The Judicial Service Committee of
the Federal Capital Territory (FCT), Abuja shall also submit a list of persons
for the appointment to the offices of the Chief Judge and the Judges of the
High Court of the FCT, Abuja, the Grand Kadi and the Kadis of the Sharia Court
of Appeal of the FCT, Abuja, and the President and judges of the Customary
Court of Appeal of the FCT, Abuja.
It
must however be noted that any person who is being appointed by the required
body must have satisfied the criteria laid down by the Constitution as to the
number of years he/she must have spent as a legal practitioner[4].
It
is important to point out that the National Assembly or a State House of
Assembly may prescribe additional qualifications for a period to be appointed
to the office enumerated above[5].
It is a member of the NJC, FJSC or Judicial Service Committee of the FCT, Abuja
A
point for immediate modification is the qualification for appointment as a
judge of Customary Court of Appeal or Sharia Court of Appeal. It is regrettable
that a person would be appointed a judge of a superior court of record for that
matter, without any serious academic qualifications other than having a
considerable knowledge of and experience in the practice of customary law[7].
It is however hoped that the NJC in exercise of its discretion be wary of this
provision. It is suggested that S. 261 (3) (b) and S. 264 (3) (b) be expunged
from the constitution.
2.1 Summary of Guidelines for Appointment in
States
We
choose to treat the appointment of State Judicial Officers separately because
of the current controversy over-shadowing the time legal framework of
appointment of judicial officers in the federating states if we consider the
events in Rivers State
i. The Chief
Judge is to get the approval of the NJC to appoint a specified number of judges
based on need.
ii. Once
the approval is given by the NJC, the Chief Judge notifies the Governor of his intention
to commence the process of appointment.
iii. The
Chief Judge will call for nomination from serving judges in and outside the
state.
iv. Short listing
of candidates who have applied
v. Circulation of
short listed candidates to the Nigeria Bar Association (NBA) branches in the
state and to the State Security Service.
vi. The Chief
Judge would present to the judicial Services Commission the short listed candidates
and their NJC’s Form a duly filled with its attachments completed.
vii. The
outcome of the Judicial Service Commission (JSC) meetings and its
recommendation to be forwarded to the NJC with the assurance that the duties of
the judge are specified.
viii. Two lists-
Priority and Reserve are to be sent to the NJC with the comment of every member
of the JSC on each of the candidates[8].
According
to the NJC Guideline, the members of the JSC shall consider petitions or
protest against any of the short listed candidates, their certificate of
fitness issued by a government hospital or institution. The JSC shall also
consider the following:
a.
Successful practice at the Bar;
b.
Satisfactory presentation of cases in court as a
Lawyer, either in private practice or as a legal officer in the Ministry of
Justice or Corporate institutions,
c.
Good character, reputation, maturity, honesty and
integrity.
d.
Sound knowledge of the law and ability.
A short-listed
candidate might not be recommended by the Commission when such candidate is
found to have any of the following disabilities: disreputable character in or
out of court; none or very little practical experience in the conduct of cases
in the High Court, he solicited for or lobbied for the appointment directly or
indirectly; or has a record of impecuniosity.[9]
The NJC may,
where it is satisfied that the Rules for the Appointment of Judicial Officers were
complied with during the selection and nomination of the candidates, recommend
such candidates for appointment to the Governor of the State[10].
Okoye has
questioned the procedure for appointment of judicial officers where power to
nominate persons for screening and the eventual appointment is vested in
surviving judicial officers alone[11].
The NBA is only allowed according to the Guideline to make comments on the
short-listed candidates forwarded to it, on their suitability or otherwise for
appointment as judicial officers.[12]
Okoye opined
that the power of nomination should not have been so restricted to serving
judicial officers only. Other members of the Legal profession, particularly the
NBA and other persons, should have been permitted to make such nominations. He
pointed out that restriction of the nomination to serving judicial officers may
hinder many qualified persons who are interested in the job, or they may be
permanently shut out. Since such persons may have no access to any serving
judicial officer, or even when the access is available, the Judicial Officer
still has the discretion to nominate of the person he so chooses.[13]
According to Uthman the process of appointment in Nigeria
“…
shrouded in secrecy and is from commencement and almost to conclusion an act of
judges nominating and choosing new members of their club. [14]
He further noted that:
“This
process of nomination by serving judges is awkward, restrictive, limiting in
nature and forecloses other constituencies like the Magistracy, the Ministry of
Justice and Private Practitioners as relevant in the exercises.[15]
However,
the appointment of judicial officers should be made open and merit based. The
appointment should be reference to sound, objective criteria, on the basis of
each candidate. Personal merit, experience, competence, performance, skills and
abilities.
2.2 Power to Appoint Chief Judges
The
constitution empowers the President or Governor to appoint the Chief Judge of
the Federal High Court or State High Court as the case may be one the
recommendation of the NJC, subject to the confirmation of such appointment by
the Senate or State House of Assembly as the case may be[16].
Contrary to
the above, the NJC appears to have arrogated power to itself or exercised it
beyond its constitutional limit, if we consider the current controversy in
Rivers State on the appointment and nomination of the Chief Judge, the NJC was
in 2012 involved in such controversies when the Governors of Osun State, Kwara
State and Adamawa State had their choice nominees as Chief Judges in their
respective States. For example in the Rivers State
If
the Office of Chief Judge of State is Vacant or if the person holding the
office is for any reason unable to perform the functions of the office, then until
a person has been appointed to and has assumed the functions of that
office, or until the person holding the office has resumed those
functions, the Governor of the State shall appoint the most senior judge of the
High Court to perform those functions.
What
is envisaged here, if subsection 5 of section 271 is also read, is a temporary
appointment which shall lapse at the expiration of three months. This does not
concern appointment of the substantive chief judge. Umezulike a former Chief
Judge in Enugu State
Send
only the name of the most senior judge in the list and insist that such judge
must be appointed by the Governor is an unwarranted obligation which NJC may
have imposed on itself. It is neither supported by any law nor by the
provisions of the constitution.”[18]
The provisions of paragraph 21, Part 1
of the 3rd Schedule to the constitution conclusively shows that it
is within the power of the Governor to appoint the Chief Judge of the State,
the NJC’s responsibility is only to recommend. The provision states:
The
National Judicial Council shall have power to
(1) recommend to the Governors from the list of
persons submitted to it by the State Judicial Service Commissions persons for
appointments to the Offices of the Chief Judges of the States…[19]
2.3 The Impact of the Selection Process on Judicial
Process
A strong and
vibrant judiciary is a sure guarantee for peace, stability and an orderly
society. The role of the judiciary may be undermined. But we are not to forget
that this body either makes or mars a life depending on its decision. A judge
on appointment to the bench might some personal characteristic which might or
might against performance which a cautious disposition might discourage
activism. A judge who displayed great volur contribute to the protection of
political and civil right[20].
The selection
and appointment process has enthroned some judges whose actions have brought
total loss of confidence in the judiciary by Nigerians because of the level of
incompetence exhibited by such judges. For example Justice Charles Archibong of
the Federal High Court dismissed the 26 count charge against Mr. Erastus
Akingbola, former Managing Director of the defunct Intercontinental Bank
without taking his plea; gave judgment in a case commenced by originating
summons without written address filed by the parties[21].
However, with such glaring errors the NJC recommended his compulsory
retirement. The process of selection and appointment has indeed opened a leeway
for lawyers who are incompetent or of questionable character or who lack the
knowledge of the law to find their way to the bench.
The present
process of selection and appointment is liable to abuse and may not encourage
the appointment of persons of honour and outstanding competence as judicial
officers. The process has the tendency to expose serving judicial officers to
intense pressure from aspirants to the bench. Some of these aspirants may
resort to all forms of enticement which may include monetary gifts and other
amoral gestures in order to secure nomination[22].
A point to note
is that the process of appointment has exposed the judiciary to corruption. In
fact, some of the judges are of doubtful integrity. This is apt in the call by
the current Chief Justice of Nigeria. Honourable Justice Aloma Muktar during
her screening by the Senate in July 2012 for petition. For the eventual
cleansing of the bad eggs by the NJC based on such petitions.[23]
President Goodluck Jonathan once expressed concern over the widespread
perception of a growing crisis of integrity in the judiciary. He remarked thus:
A
partisan judge compromises his or her oath of office and acts unfairly. A
corrupt judge disgraces the Bench on which he or she sits and the title that he
or she wars.[24]
What is clear from the above is that
the current selection and appointment process of judicial officers is in great
need of review to meet the current challenges facing the Nigerian Judiciary and
the Nigeria factor of “who no man”.
2.4 The National Judicial Council under the 1999
Constitution
The National
Judicial Council as known today did not feature in the Nigerian Constitution
until 1999.[25]
Its basic functions is to recommend to the President or Governor of any state
for the appointment and removal of Judicial officers in Federal or State
Superior Courts. It is also one of its functions to exercise disciplinary
control over the persons who constitute the total number of the Federal and
State Judicial officers in Nigeria
The National
Judicial Council as established under the constitution was first constituted in
the year 2000 under Hon. Justice Muhammadu Lawal Uwais, the then Chief Justice
of Nigeria
The NJC is
established under the 1999 constitution as a “Federal Executive Body” under S.
153 (1) (i). As an execution body which is responsible for discipline of
judicial officers who are members of another arm of government; one wonders how
the much desired independence of the judiciary could be achieved. The
appointment and composition of its membership calls to question the practice of
the doctrine of separation of powers as it stands under the constitution. The
question of the independence of the judiciary will be properly examined in the
next chapter. That notwithstanding the problem may have been caused by the very
fact that the constitution was imposed on us by the military regime. Although
the constitution states that we practice federalism, the truth is that the
creation of the NJC for both federal and states Courts negates the principle of
the Federalism which we purport to borrow from the USA
2.4.1
Composition of the National Judicial Council
The 1999 constitution makes a
comprehensive provision for the composition of the NJC as follows:
The
National Judicial Council shall comprise of the following members:
a.
The Chief Justice of Nigeria who shall be the
Chairman,
b.
The next most senior justice of the Supreme Court
who shall be the Deputy Chairman;
c.
The President of the Court of Appeal;
d.
Five retired justices selected by the Chief
Justice of Nigeria from the Supreme Court or Court of Appeal;
e.
The chief judge of the Federal High Court;
f.
Five Chief Judges of States to be appointed by the
Chief Justice of Nigeria from among the Chief Judges of the States and of the
High Court of the Federal Capital Territory, Abuja in rotation to serve for two
years;
g.
One Grand Kadi to be appointed by the Chief
Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to
serve in rotation for two years;
h.
One President of the Customary Court of Appeal to
be appointed by the Chief Justice of Nigeria from among the Presidents of the
Customary Courts of Appeal to serve in rotation for two years;
i.
Five members of the Nigerian Bar Association who
have been qualified to practice for a period of not less than fifteen years, at
least one of whom shall be a senior Advocate of Nigeria, appointed by the Chief
Justice of Nigeria on the recommendation of the National Executive Committee of
the Nigerian Bar Association to serve for two years and subject to
re-appointment, provided that the five members shall sit in the council only
for the purposes of considering the names of persons for appointment to the
superior courts of records; and
j.
Two persons not being legal practitioners, who in
the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.[27]
The NJC is made up of twenty three
(23) members, inclusive of the Chief Justice of Nigeria, who is the Chairman.
Fourteen (14), out of the twenty three members are singularly appointed by the
Chief Justice as the Chairman and such appointment is not subject to any
control or consultation with any person or body. The Chairman also appoint the
five members from the NBA but on the recommendation of the NBA. This brings the
number of members appointed to 19 out of 23. This trend according to Abeni is
not too democratic”.[28]
Under the current position of the Law on appointment of the NJC membership,
Okpoko opined that the tendency will be that majority of the members will
perform their duties with predetermined mind-set of the Chairman.[29]
He who pays the piper dictates the tune.
A
bigger problem with the current arrangement deals with the discipline the Chief
Justice of Nigeria where he/she errs. The apparent mischief inherent in such
bizarre arrangement was brought to the fore in what is now known as “Hon.
Justice Isa Ayo Salami Saga”.
Another
issue with the membership of the Council is the five-member representatives of
the NBA’s in the council. The members are only allowed to sit in the council
when it is considering names of persons for appointment as judicial officers.
It therefore follows that the NBA representatives in the council would not be
in the council when it is performing other functions. For example, the
disciplining of Judicial Officers. “The
Reason for this restriction by the constitution cannot be fathomed”.[30]
What is clear is that such restriction cannot be reasonably justified. Members
of the NBA ought to be independent members of the council outside the bench who
might check possible abuses of its powers watched the NJC which is constituted
under the constitution as the “bencher’s club”. If we consider the fact that
two members of the council who are non-legal practitioners will participate
without restrictions, the rationale for restricting the representation of the
NBA becomes more subject to criticism.
It
is clear that there is need for change in the appointment of members of the
council. An understanding of the role the NJC is expected to play in building
an independent judiciary calls for a review of its composition.
2.4.2
Tenure of the Council
The
provisions of S. 155 on the tenure of the members of the NJC, also applies to
members of other executive bodies established by S. 153 (1) of the
constitution. The tenure of the members of the council as provided in section
155 (i) of the constitution reads:
A
person who is a member of any of the bodies established as aforesaid shall,
subject to the provisions of this part, remain a member there of-
(a)
in the case of an ex-officio member, whilst he holds the office by virtue of
which he is a member of the body.
(b)
in the case of a person who is a member by virtue of his having previously held
an office, for the duration of his life, and
(c)
in the case of a person who is a member otherwise than as ex officio members or
otherwise than by virtue of his having previously held an office, for a period
of five years from the data of his appointment.
From the above provisions, the Chief
Justice of Nigeria, who is the Chairman of the council, the next most senior
Justice of the Supreme Court, who is the Deputy Chairman, the President of the
Court of Appeal, the Chief Judge of the Federal High Court, will only remain as
members of the council while they hold the offices by which they became members
of the council. The vague provisions in paragraph (b) of subsection (1) of
section 155 appears to suggest that the five retired justices of the Supreme
Court or the Court of Appeal would remain in office for life[31].
It is also possible to construe the provision to include the CJN, President of
the Court of Appeal, the Chief Judge of the Federal High Court who were members
of the council by virtue of the office they previously held.
However
Okoye argued, that it could not have been the intention of the framers of the
constitution to include the five retired justices of the supreme Court or Court
of Appeal since they were only members of the council by virtue of their
appointment not by the office held strictly speaking. Accordingly he posited
that the correct interpretation should be that it only applies to persons whose
membership of the council is “automatic by virtue of their having previously
held a specified office.”
2.4.3
Qualification for Membership of the Council
Qualification
of members of the council is same as that of persons who seek election into the
House of Representatives. Section 156 provides:
1. No person
shall be qualified for appointment as a member of any of the bodies aforesaid
if-
a. He is not
qualified or if he is disqualified for election as a member of the House of
Representatives,
b. Within
the preceding ten years, he has been removed as a member of any of the bodies
or as the holder of any office on the ground of misconduct.
2. Any
person employed in the public service of the federation shall not be
disqualified for appointment as chairman or member of any of such bodies.
Provided that where such a person has been duly appointed he shall, on his
appointment, he deemed to have resigned his former office as from the date of
the appointment.
3. No
person shall be qualified for appointment to any of the bodies aforesaid if,
having previously been appointed as a member otherwise than as an ex officio
member of that body, he has been reappointed for a further term as a member of
the same body.[32]
Before an analysis of the above
provisions, let us consider the qualification for election into the House of
representatives. Section 65 of the constitution provides that a person shall be
qualified for election as a member of the House of Representatives, if he is a
citizen of Nigeria Nigeria
However
Okoye opined that for the purpose of appointment as a member of the council, a
person may or may not belong to a political party. Such person should not be
required to belong to a political party before he is eligible for appointment[34].
2.4.4
Powers of the National Judicial Council
The
National Judicial Council has power to recommend to the President or Governor
from among the list of persons submitted to it by the Federal Judicial Service
Commission or State Judicial Service Commission as the case may be, persons to
be appointed to the offices of the Chief Justice of Nigeria, Justices of the
Supreme Court, President and Justices of the Court of Appeal, Chief and Judges
of the Federal High Court Chief Judge and Judges of the High Court of the FCT,
Abuja, Grand Kadi and Kadis of the Sharia Court of Appeal of the FCT, Abuja,
the President and Judges of the Customary Court of Appeal of the FCT, Abuja,
submitted to it by the Judicial Service Committee of the FCT Abuja, on the one
hand; and Chief Judges of the States and Judges of the High Courts of the
States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States
and the President and Judges of the Customary Courts of Appeal of the States,
as the case may be.[35]
The
NJC shall also have power to recommend to the President or Governor, the
removal from office and exercise of disciplinary control over the judicial
officers specified above.
The
NJC has power to collect, control and disburse all moneys, capital and
recurrent, for the judiciary; advise the president and governors on any matter
pertaining to the judiciary as may be referred to the council by the President
or the Governors, appoint, dismiss and exercise disciplinary control over
members and staff of the council; control and disburse all monies, capital and
recurrent; for the services of the council, and deal with all other matters
relating to broad issues of policy and administration.[36]
The
National Judicial Council is one body that has been criticized as negating the
true principles of federalism. As honourable Justice A.G. Karibi-Whyte JSC said
with:
The
National Judicial Council is a very much misunderstood institution. Many state
governments are not happy with the institution because they argue it is a
negation of the tenets of true federalism and the independence of the
Judiciary.[37]
The
NJC as a body and its chairman wields too much power in the appointment and
composition of its membership, in the discipline of judges the NJC is the judge
and prosecutor. There is a need for restructuring and review of the laws
regulating the NJC. As in 22, 2011 Justice Dahim Mustapher thus former Chief
Justice of Nigeria said:
The
NJC should be repositioned and the Law governing NJC should be reviewed for
better performance… Considering the other responsibilities of the council in
formulating broad policies for the judiciary as well as judicial appointments,
it appears worthy for us to consider the merits of creating a separate
institution to specifically deal with complaints/petitions, discipline and
removal of judicial officers. Several commonwealth countries have such
specialized institutions specially responsible for complaints and discipline.[38]
2.5 Removal of Judicial Officers from Office
Any
member of the judex accused of corruption must be thoroughly investigated with
a view to determining the veracity or otherwise of the charge. If substance is
found in same, then the judge should not only be dismissed but must be turned
over to law enforcement agencies for onward prosecution. It is not enough to
dismiss him secretly.[39]
In Nigeria
A
judicial officer shall not be removed from his office or appointment before his
age of retirement except in the following circumstances.
(a)
in 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 of the
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.
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 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.
A dismissed
judicial officer who is aggrieved with the decision to compulsorily dismiss or
retire him may by convention apply to the Federal High Court questioning the
dismissal. The life span of service of judicial officers before retirement has
been fixed at 60-65 years, and 65-70years, for states and appellate judicial
officers respectively.[40]
Accordingly,
from the provisions of the constitution reproduced above, a judicial officer
may be removed from office on any of the following grounds:
1.
Misconduct;
2.
Breach of Code of Conduct,
3.
Inability to discharge the functions of his office
Misconduct
means “a dereliction of duty, unlawful or improper behaviour.”[41]
According to Obi Okoye, this may include abuse of office, recklessness in the
use of judicial powers e.t.c. The nature of corruption or misconduct which may
justify the removal of a judicial officer from office must be one which serious
and extensive and impairs his general perception of his duty as a public or judicial
officer and warrant his removal from office.[42]
In A.G. Cross River State v. Esin,[43]
it was held that misconduct by a judicial officer to warrant his dismissal is
not limited only to acts concerning his office, but also includes other acts of
the judicial officer in his private life which are such as to erode public
confidence in him as a judicial officer may amount to misconduct justifying his
removal.
It must be
pointed out that where the misconduct complained of is criminal in nature, say
for example an allegation of demand and receipt of gratification from a
litigant in the course of performing his judicial duties, the judicial officer
must be tried by the ordinary court of law not merely by a Judicial Service
Committee, if the removal on the basis of the criminal offence must stand.[44]
Inability to
discharge the functions of his office is another ground for the removal of a
judicial officer from office. This may include insanity, physical disability or
any other form of ailment which would prevent the said officer from discharging
the functions of his office.
Finally,
another ground for the removal of a judicial officer is a breach of the code of
conduct. The Code of Conduct regulates the conduct of all public officers in
the country including Judicial Officers.[45]
A breach of the code of conduct will include engagement in the running of
private business, profession or trade, but this does not include farming,
failure to declare his assets, false statement in the declaration, bribery
e.t.c.[46]
Apart from the code of conduct for public officers generally contained in the 5th
schedule to the constitution, there is also a code of conduct specifically for
judicial officers issued by the NJC pursuant to S. 22 (i) of 3rd
schedule Part 1, 1999 constitution.
2.5.1
Procedure for Removal of Judicial Officers
The
Third Schedule, part 1 to the 1999 constitution provides:
The National Judicial Council shall have
power to-
(a)-----------------------------------------------
(b)
Recommend to the President the removal from office of the Judicial officers
specified. In sub-paragraph (a) of this paragraph, and to exercise disciplinary
control over such offices.
(c)----------------------------------------------
(d)
Recommend to the Governors the removal from office of the Judicial officers
specified in sub-paragraph (c) of this paragraph, and to exercise disciplinary
control over such officers.[47]
Sub-paragraphs (a) and (c) contains
the particulars of judicial officers who should not be removed except on the
recommendation of the National Judicial Council. The President and the State
Governors cannot on their own dismiss a judicial officer except as recommended
by the Council. Suffice it to say that the perceived ambiguity in S. 292 (i) of
the 1999 constitution upon which some state Governors think they can dismiss a
judge without the impute of the NJC is self inflicted. To get the true intent
of the framers of the constitution, that section must not be interpreted in
isolation without a consideration of the Third schedule alongside.
The
Governors prefers an interpretation that the power of investigation and
recommendation for the removal of the Chief Judge of the State resides in the
House of Assembly of the State and not the NJC.[48]
This certainly does not represent the intention of the framers of the
constitution. In Erelu-Habeeb v. National Judicial Council,[49]
1st Appellant was the Chief Judge of Kwara State
Mohammed
JSC held:
…on
the interpretation and application of the provisions… That is to say for the
purpose of emphasis, the constitution of the Federal Republic of Nigeria 1999,
does not give the Governor of Kwara State acting in conjunction with the House
of Assembly of Kwara State absolute power to remove the Chief Judge of the
State from his/her office or appointment before the age of retirement without
the recommendation of the National Judicial Council.
This decision has made the true
position clear and it is hoped Governors will follow the proper procedure in
future cases when the need arises.
The
proper procedure would be where there is a complaint against judicial officers,
it is sent to the National Judicial Council which will set up a committee to
investigate the allegation. The judicial officer is notified in writing of the
allegation and is afforded reasonable time to react to the allegation where the
allegation is proved against the judicial officer, the NJC shall recommend to
the President or Governor as the case maybe, the removal of such Judicial
Officer.[50]
Where the judicial officer is the head of any court, the President or Governor,
may not remove him except on the address of the Senate or the House of Assembly
of the State with the two-thirds majority votes of members.
The
NJC may as well exercise other disciplinary measures other than removal of a
judicial officer. Such disciplinary measure may include suspension from office
pending the outcome of its investigation. This is essential to ensure that
corruption by Judges is detected, investigated and properly sanctioned.[51]
It
is argued by Abeni that the abatement of suspension and recall from suspension
of a suspended judicial officer fall within the exclusive powers of the NJC.[52]
We are of his view. But it is unfortunate that the suspension of Hon. Justice
ISA Ayo Salami, though the NJC passed a resolution sometime in May 2012 for his
recall and reinstatement, contrary to the constitution, the President disapprove
that, “when indeed the President lacks the vires to do so.[53]
It is my hope that in future cases the rule of law will reign supreme. And the
NJC will not even have recourse to the President or Governor when a suspension
is lifted.
[1]
Omotolani Akinwade, “The impact of the Selection and Appointment of Judges on
the Judicial Process: The Nigerian Experience”, Young African Research Journal,
vol. 2 (2013) 34
[2] CFRN
1999
[3] Ibid S.
238 (2), S. 250 (2), S. 256 (2), S. 266 (2)
[4] For the
Supreme Court see S. 231 (3), Court of Appeal 237 (3), High Court Judges see S.
249, 256 (3), and ten years is also maintained for Kadis and Judges of the
Sharia Court of Appeal, Abuja and Customary Court of Appeal, Abuja,
respectively.
[5] That is,
Judges of the Customary Court of Appeal of the FCT or of a State as the case
may be.
[6] S. 289
of the Constitution, 1999
[7] Ibid, S.
266 (3) (b)
[8] Kunle
Uttman, “The Reality and the Myth: How Independent are the JSC in Filling
Vacancies” a presentation made by the Honourable Commissioner, Lagos State Judicial
Service Commission. On July 4, 2014. Available online at access to
justice-ng.org/ (Accessed September 6, 2014), see also the NJC Guidelines and
Procedural Rules 2003 which took effect from January 1st 2004
[9] See Rule
4 (1-4) ibid
[10] The
above procedure is applicable to Federal Courts of Superior records but the NJC
recommendation is made to the President.
[11] Okoye,
A.O, “Issues in the membership, powers and autonomy of the National Judicial
Council in Nigeria in Abikan, A.I. and Ishola, A.S. (ed), Nigeria Judicial:
Contemporary issues in Administration of Justice. Essays in Honour of Hon.
Justice I.A. Salam, Ilorin Nigeria
[12] See
Rule 3 (4) of the Guideline
[13] Okoye
Op cit, 394
[14] Kunle
Uthman Op Cit, 7
[15] Ibid
[16] S. 250
(1) and S. 271 (1) of the Constitution
[17]
Umezulike Innocent, “The Judicial Integrity, Independence and Reforms: Essays
in Honour or Honorable Justice Mohammed Uwaise cited in Nigeria News Digest,
Governor’s Power to Appoint Chief Judge is Sacrosanct says Enugu CJ”, Available
online at
Nigeriannewsdigest.com/governors-power-to-appoint-chief-judge-is-sacrosant-says-Enugu-CJ/
(Accessed September 9 2004)
[18] Ibid
[19] See Para 21 (c), part I of the third schedule to the
constitution.
[20] Femi
Falana, “The Anti-Corruption War in the Nigerian Judiciary: The Journey So
Far,” in Abikan, A.I. and Ishola, A.S. (ed.) Nigeria
Judiciary: Contemporary Issues in Administration o f Justice: Essays in Honour
of Hon Justice Isa Ayo Salami, Ilorin : Nigeria
[21] Ibid, 310
[22] Okoye
Op. Cit, 394
[23] Falana,
Op. Cit, 309
[24] The
Nation, September 27, 2011
[25] Dadem,
Y.Y., “Removing the Judge: Challenges to Judicial Independence
in Nigeria ”, Nigeria
[26] Abeni,
O. Mohammed, “Constitutional Powers of the National Judicial Council,” in
Abikan, A.I and Ishola, A.S., (ed), Supra, 411
[27]
Paragraph 20, Part 1, 3rd schedule
[28] Abeni
Op. Cit, 416
[29] Okpoko,
T.J.O, “Reinvigorating National Judicial Council for a Stronger Judiciariy in Nigeria
[30] Okoye
op cit. 381
[31] Ibid,
384
[32] CFRN
1999
[33] Akande,
Jadesola O., Introduction to the Constitution of the Federal
Republic of Nigeria
1999, Lagos
[34] Okoye
Op. Cit, 386
[35] Para 21
Part I, Third schedule to the Constitution
[36] Ibid
[37] Quoted
in Azing Epiphany and Rapu, F. Judith, “Roadmap to Judicial Transformation:
Through the lens of Retired and Serving Jurists of the Supreme Court” Available
online at www.nials-nigeria.org/journals/
Azing and Judith-Roadmap to Judicial Transformation. Pdf. (Access September 6,
2014
[38] Ibid,
53
[39] Ibid,
54
[40] Azinge
and Judith Op. Cit 60
[41] Black’s
Law Dictionary, 9th ed., 1089
[42] Okoye
Op. Cit, 398
[43] (1991)
6 NWLR (Pt. 197) 365
[44] Biishi
v Judicial Service Commission (1991) 6 NWLR (pt. 197) 331
[45] See the
5th Schedule to the Constitution Part II, para. 5.
[46] See the
5th schedule, Part I, generally.
[47] See Paragraph
21 (a)-(d) of Third Schedule Part 1 to the 1999 constitution.
[48] Okoye
Op. Cit, 401
[49] (2012)
13 NWLR (Pt. 1318) 423
[50] Umanah
V. Attah (2006) 17 NWLR (pt. 1009) 503
[51]
Badejogbin, R.E. and Onoriode , M.E. ,
“Judicial Accountability and Discipline in Nigeria
[52] See
Subsection (1) of section 158 of the 1999 Constitution
[53] Abeni
Op. Cit, 420
CHAPTER
THREE
INDEPENDENCE
OF THE JUDICIARY
The
Judiciary plays a fundamental role in national development by efficaciously
resolving disputes and upholding civil rights and the rule of law. It creates a
stable environment that is indispensable to economic development and social
cohesion. Justice must be rooted in confidence and that confidence is destroyed
when right thinking people doubt the neutrality of the judge. The independence
of the judiciary must be exercised in a manner that is transparent for public
view. However it is important to as well as equally necessary to impose checks
on the exercise of judicial powers because the exercise of absolute power often
leads to abuse of power.[1]
The
term judicial independence embodies the concept that a judge decides cases
fairly, impartially, and according to the facts and law, not according to his
whims, caprices prejudice or fear of the legislature or executive or the public
opinion.
Professor
Nwabueze, pointed out that independence of the judiciary means much more than
just independence from the legislature and the executive. It means independence
from political influence, whether exerted by the political organs of government
or by the public or brought in by the judges themselves through their involvement
in politics.[2]
The
independence of the judiciary emanates from the doctrine of separation of
powers and it is a generally accepted concept globally as a vital ingredient of
a constitutional democracy. It is one of the foundations of the rule of law. It
has three basic features: impartial judicial decisions, obedience of judicial
decisions and non interference by then. Executive or legislative performance of
its duties.
This
independence means that both the judiciary as an institution and the individual
judges deciding particular cases must be able to exercise their professional duties
without being influenced by the Executive, the legislature or any other
inappropriate sources. It is imperative to point out that the principle of
independence of the judiciary or judges was not created to protect judges but
also to protect individuals against abuse of power. It therefore means that
judges cannot act arbitrarily in any way by deciding cases according to their
personal preferences, but that their duty is and remains to apply the law to
all manner and classes of persons.[3]
Accordingly like Caesar’s wife, our courts must not only be above board, but
they must at all times, be seen to be above board.
3.1 Constitutional
Guarantee of Independence
Section
17 (2) (e) of the 1999 constitution provides that the independence and the integrity
of courts of law shall be secured and maintained. The concept of judicial
independence contains many elements. Basically, a judge should have security of
tenure, and can only be removed for specific reason and by means of an adequate
procedure. The process of selection of judges should be free from political,
personal or other related consideration. Personal emoluments or salaries should
be guaranteed the rule of law and obedience to court orders are necessary for a
truly independent judiciary. Interest of funding which is also a necessary
factor is enshrined in the constitution.[4]
The
constitution can be regarded as the Supreme safeguard for the independence of
the judiciary since other mechanisms such as the National Judicial Council, appointment
procedures. The role of international law and how it is applied in terms of
municipal laws, usually find expression in the constitution.
3.1.1
Appointment of Judicial Officers
The
process of appointment of judicial officers definitely contributes to the
independence of the judiciary.[5]
For judicial officers to be impartial and independent in applying the law, they
must be appointed on merit, experience and qualification. Their appointment
should not be influenced by any connections or relations they might have with
the President or the ruling political party or members of the Judicial Service
Commission or the NJC.
It
is difficult to see how an appointee will not be influenced by the appointing
authority as it is the case in Nigeria
A
judge appointed by a commission consisting mainly of politicians and nominees
of politicians should hardly be blamed if, where circumstances present two
possible options, he lens in favour of politicians who appointed him.[9]
A good example of how the commission or NJC could work against independence of
the judiciary in the Katsina-Alu/Salami imbroglio. After the FJSC chaired by
the then Chief Justice of Nigeria, Justice Aloysius Katsina-Alu recommended
that Justice Isa Ayo Salami be promoted from the Court of Appeal to the Supreme
Court, the latter rejected the promotion and gave reason for his rejection in a
suit in court averring that the CJN had asked that the governorship election
petition in Sokoto State be decided in favour of the candidate of the ruling
party. Notwithstanding the suit, the NJC suspended him exonerating the CJN.[10]
But upon the retirement of the CJN, the matter was revisited and the outcome
exonerated Justice Salami. The impact of this controversy, no doubt weakened
the moral fiber of the judiciary. The crisis did an incalculable damage to the
image of a judiciary that has suffered from public confidence.
Apart
from the above, assuming the NJC and the Judicial Service Commissions do not
appear sufficiently to be independent. The NJC merely makes recommendation to
the President or Governor as the case may which they may reject. This is
evident in the crisis in Rivers
State
3.1.2
Security of Tenure
The
concept of judicial independence contains many elements. Basically a judge
should have security of tenure and can only be removed on specific grounds and
by means of an adequate procedure. A judge should not be afraid of being
removed from office if he is to discharge his expected duties without fear or
favour.[12]
The
security of tenure of the judicial officers is guaranteed by the 1999
constitution. It provides thus:
1.
A Judicial officer appointed to the Supreme Court
or the Court of Appeal may retire when he attains the age of sixty-five years
and he shall cease to hold office where he attains the age of seventy years.
2.
A judicial officer appointed to any other court,
other than those specified in subsection (1) of this section may retire when he
attains the age of sixty years and he shall cease to hold office when he attains
the age of sixty-five years.[13]
What is clear from the above provision
is that neither the Executive nor the Legislature has power to limit the period
of service of a judge, otherwise it will endanger the independence of the
judiciary. In the case of removal from office, the constitution made specific
provisions for the procedure applicable and the grounds for such removal.[14]
Where this provisions are properly applied and adhered to, the independence of
the judiciary will be ensured and the security of tenure of judicial officers
will be guaranteed.
Globally,
it is a recognized fact that unless there is security of tenure for judicial
officers, their independence may be compromised. Hence principle 11 of the
Basic Principle 1985 of the United Nations provides that:
The
term of office of judges, their independence, security, adequate remuneration, conditions
of service, pensions and the age of retirement shall be adequately secured by
law.
Principle 1
further provides that:
Judges,
whether appointed or elected, shall have guaranteed tenure until a mandatory
retirement age or the expiring of their term of office, where such exists.
This international law further makes
provisions covering questions discipline, suspension and removal of judges.[15]
Principle 17 speaks of “an appropriate procedure” and principle 20 recommends
that decisions in disciplinary or other procedures “should be subject to an
independent review.” It sums up the recognition for the independence of the
judiciary thus:
The
independence of the Judiciary shall be guaranteed by the state and enshrined in
the constitution or the law of the country. It is the duty of all government
and other institutions to respect and observe the independence of the
judiciary.[16]
3.1.3
Funding of the Judiciary
The next item which contributes
immensely to the independence of the judiciary is its funding. If the judiciary
is deprived of funds and the material to carryout its functions, its
independence will be endangered. If the judiciary is properly funded, it will
ensure its independence. Hon. Justice Akintola Olufemi Ejiwunmi, JSC, CON on 30th
May, 2006, on the occasion of his valedictory observed:
May
I also allude to one aspect of the condition under which judges are living and
working… There must be in my view proper rules that should govern the
entitlement of judges while alive and when he dies whether he is serving or
not. When it is men and women of proven integrity and character that are
appointed to the Bench and who are properly remunerated and protected, chances
are they would discharge their duties fearlessly.[17]
Financial
autonomy from the Executive and Legislature no doubt will entrench Judicial
independence.
According to Principle 7 of the 1986
Basic Principles:
It
is the duty of each member state to provide adequate resources to enable the
judiciary properly perform its functions.
The 1999 constitution makes provision
for the funding of the Judiciary it provides thus:
There
shall be paid to the holders of the offices mentioned in this section such
remuneration, salaries and allowances as may be presented by the National
Assembly, but not exceeding the amount as shall have been determined by the
Revenue Mobilization Allocation and fiscal commission.[18]
Subsection (2) of section 84 further
provides that:
The
remuneration, salaries and allowances payable to the holders of the offices so
mentioned shall be charge upon the Consolidated Revenue Fund of the Federation.
The Consolidated Revenue Fund
comprises of all revenues received by the Federation subsection (3) of that
section further guaranteed that remuneration payable to the holders of the said
offices shall not be altered to their disadvantage after their appointment. And
subsection (4) listed judicial officers among others as the holders of the
aforesaid offices. Subsection (7) specifically provides that the recurrent
expenditure of judicial offices in the Federation shall be a charge upon the
Consolidated Revenue Fund of the Federation.
However
it is a common knowledge that the funds of the judiciary are essentially under
the control of the Executive arm. They provide offices, court houses, human
resources etc without which the Judicial Officers will not perform their
functions effectively.[19]
The former Chief Justice of Nigeria, Honourable, Justice Dahiru Mustapher, GCON
on September 22, 2011 accused State Governors of violating S. 121 (3) of the
1999 constitution by their interference in the statutory allocations to state
judiciaries He said:
It
is a bit frustrating at the state levels because state governments violate
section 121 (3) of the 1999 constitution of Nigeria
Incessant interference with judicial
funds led to an action filed by Alisa Agbakoba against the Federal Government,
NJC and the National Assembly where he sought a declaration that the interference
was unconstitutional. The Federal High Court, Abuja
Remuneration
is an important matter in any given situation. Respective salaries are a
necessary element of judicial independence. According to Rosem, “the underlying
policy is to protect judges from financial retribution for rendering decisions
that displease the legislature or the Executive”.[22]
Section 84 (3) of the constitution protects remuneration of judicial officers,
providing that their remuneration and salaries should not be altered to their
disadvantage.
Azinge
and Ruth argued for a fair and adequate remuneration for the judiciary since it
may help attract qualified persons to the Bench and may also make judges less
likely to yield to the temptation of corruption and political or other undue
influences.[23]
To ensure judicial independence the legislature or the Executive should not use
remuneration of judicial officers against them. The Supreme Court of Canada in
the case of Manitoba Provincial Judges Assn V Manitoba (Minister of Justice)[24]
examined what constitutes violation of judicial independence. And held that the
refusal of the Manitoba Government to sign a joint recommendation to the Judicial
Compensation Committee “unless the judges agreed to forgo their legal challenge
of the law which led Government to impose deductions on their salary violated
independence of the judiciary. The court held that the government had its
policy imposed economic pressure on the judges so that they would concede the constitutionality
of the planned salary charges.”
3.1.4
Judicial Accountability
Judicial
accountability as it relates to the independence of the judiciary means that
judges or judicial officers must be subject to discipline if they fail to live
above board. However public interest requires that judicial officers, in the
exercise of their functions should be able to act freely without fear of
incoming liability for damages of defamation.[25]
This calls for an examination of judicial immunity.
Judicial
immunity as it relates to independence of the judiciary concerns acts done or
words spoken in the performance of judicial duties by judges. It can be traced
to the English Common Law[26].
It is also now provides for in the various High Court Laws. For e.g. the High Court
Law of Cross River State
No
Judge or person appointed under the provision of section 7 of the law to act as
a judge shall be liable for any act done or things said by him in the course of
any proceedings before him in the course of any proceedings before him,
provided that at the time he, in good faith, believed himself to have
jurisdiction in such proceedings.[27]
The general rule of the common law is
that persons exercising judicial functions in a court or tribunal are immune
from all civil liability whatsoever for anything done in their judicial
capacity.[28]
It is expressed in the Maxim “de fide et
officio judicis non recipitur quaestio, sed de scienta, sive sit error juris,
sive facti”, meaning the honesty and integrity of a judge cannot be questioned,
but his decision may be impinged for error, either of law or of fact. It is
necessary for the free and impartial administration of justice, that the person
administering it should not be uninfluenced by fear or unbiased by hope.[29]
Thus,
it is the law that no action is maintainable against a judge for anything said
or done by him in the performance of his duties. The words which he speaks are
protected, the order he gives cannot be made a subject of civil litigation
against him. No matter that the judge was under some gross error or ignorance,
or actuated by envy, or hatred, and malice and all uncharitableness, he is not
liable to any action.[30]
Judicial
impunity does not mean that a judge is protected from all wrongs. Of course, if
the judge has accepted bribes or being in the least degree corrupt, or has
perverted the course of justice, he can be punished in the criminal courts.
This is the place or role of judicial accountability. For the judiciary to
properly execute its functions, it must not only be independent but should be
subject to discipline accountable and discipline.[31]
A
feature of judicial accountability is that judges must be subject to discipline
(as provided under the constitution) if failed to live up to the expectation of
their vocation.[32]
However, the constitutional procedure for achieving this should not lose sight
of the primary aim of enforcing accountability. It should not impair judicial
independence.[33]
3.2 Press or Public Trial/Litigation
Bill
or public trial/litigation has the tendency of impugning on the independence of
the judiciary. The press may influence public opinion to the extent that public
opinion will influence properly constituted courts of the land, judges would be
afraid to deliver judgments according to the law and the dictates of their
conscience for fear of what the press may say or what aggrieved practitioners
and members of the public may choose to say through the press, and deliver
judgments in accord with public opinion.[34]
The
dangerous trend of press litigation in Nigeria
It
is sad that so much has been said in the newspapers of this country on the
case. The new technology of internet reporting has added to the comments, some
of them doubting our integrity to do justice according to the law. I regard
them as blackmail and I will not succumb to blackmail… And when they come to
the judges and the judges in their professional minds give judgment, they call
them all sort of names. To the party who wins the case, the judiciary is the
best place and the real common hope of the common man. To the party who loses,
the judiciary is bad… The judge who has given judgment in the light of the law must
not be castigated in the way it is done in this country.
That is a primitive conduct and I condemn
it… I feel very strongly that Nigerians judges should be allowed to perform
their judicial functions to the best of their ability.[35]
When
a case is in court, it is subjudice to comment on it in the press or by the
public because it is prejudicial
matters that are subjudice, commenting
on prejudicial. The court of Appeal in Bello V. A.G. Lagos[36]
held that:
Comments
on pending legal proceedings which purports to prejudice the issues that are to
be tried by the court are intrinsically objectionable as constituting a
usurpation of the function of the court… Trial by newspaper, television or
other medium other than court is not only unacceptable but also objectionable…
3.3 Impact
of Independence
An
independent judiciary is essential in the dispensation of justice and in
democratic system of government. Democracy is all about right and freedom of
every individual, these rights and freedom cannot be guaranteed if the
judiciary is not independent.[37]
A democratic system of government cannot thrive if the judiciary is impotent.
Therefore, it
is importance to examine Nigeria Nigeria Rivers
State
While
the matter was in process, the Governorship election was conducted in Rivers State Nigeria
In
Nigeria
3.4 Factors to Aid Independence of the Judiciary.[41]
a.
Courage, Competence and Integrity of Judex: This
implies that judicial officers must be courageous to apply the law as it is.
They must also show competence and have a corresponding integrity, for a judge
without integrity is a scandal to the bench and the nation.
b.
Support of the bar: The bar and the bench should walk
hand in hand in the sustenance of the judiciary. The bar must support the
Judiciary, fight for the protection of its integrity and the judiciary generally.
The former Chief Justice of Nigeria, Hon. Justice Dahiru Mustapher, CJN, GCON,
during his swearing in ceremony in clear tone stated that the role of the bar
thus:
Traditionally,
members of the Bar have always cooperated with the judiciary in educating the
public regarding judicial action. The bar has often stepped up in defense of
the judiciary at moments where our actions were perceived wrongly. The
degeneration of the healthy working relationship between the Bar and the Bench
has severed a necessary link in the symbiotic efforts to bridge the gap between
the law and society. This link must be restored immediately.[42]
c.
Discerning Public: The members of the public who
are very selective in judging, displaying good judgment and good taste, who are
astute and an important asset to the judiciary. And will help promote aid the
independence of judiciary.
d.
Financial autonomy: This was earlier discussed in
this chapter under funding of the judiciary. This factor will greatly aid the
independence of the judiciary.
e.
Fearless, Fair and Independent
Pres: Notwithstanding
the views expressed on press trial, a remarkable feature of the relationship
between the judiciary and the media is that the independence of the judiciary
and the independence of the media are both fundamental to the continued
sustenance of our democracy. Judicial independence and integrity is dependent
on the independence of the press. For the press to be helpful to the
independence of judiciary, it must be fearless, fair and independent.
f.
Willingness of the executive arm/support of the
legislature: The Executive must be willing to see that the judiciary is truly
independent, otherwise the practicability of the independence will be a doubt.
So also, the legislature must lend its support for the actualization judicial
independence. The willingness and support referred to concerns obedience to
court orders, respect of the rule of law. Regrettably, the practice today in Nigeria
g.
Strong sheriff department: Where a strong sheriff
department is put in place, it will aid the independence of the judiciary as it
will enforce court orders without necessarily resorting to the police as it is
the case now. For instance, if a court gives an order against a Commissioner of
Police, or is against the Inspector General of Police, if it is difficult to
enforce such an order. The police generally flout such orders with impunity, as
is the case in Nigeria
h. Wellbeing of
the Judges: This was earlier discussed in this chapter. There is no doubt that
when the remuneration of judges is satisfactory in any judges will resist the
temptation to be corrupt.
The effect of
such disobedience to court orders was aptly captured by the Court of Appeal per
Saulawa J.C.A when he held thus:
Not
too long ago, this court was recorded to have aptly and rather prophetically
re-echoed the antithetical effect of disrespect to courts of law vis-Ã -vis the
independence of the judiciary… its axiomatic that disrespect to a court of Law,
in whatever ramification, is antithetical to the rule of law, democracy and the
well cherished independence of the judiciary. And the importance of a
competent, independent and impartial judiciary in preserving and upholding the
rule of law cannot be overemphasized. There is no doubt that public confidence
in the independence of the courts, in the integrity of judges that man such
courts, and in the impartiality and efficiency of the administration of justice
as a whole, play a great role in sustaining the judicial system of a nation. I
think it was Mr. Justice Frankfurter, the eminent and fearless US
“the court’s authority… possessed of neither the
purse nor the sword… Ultimately rest on sustained confidence in its moral
sanction”. See Baker V Carr, Supreme Court of USA
(1962) 369 US
Indeed,
it’s trite that discourteous, insolent, or disrespectful disposition towards
the court is like an ill-wind. It blows nobody any good, at all.[43]
Indeed
judicial independence is necessary for the sustenance of democracy and
administration of justice as the last hope of the common man and the highly
placed in the society. Judicial independence is two-fold: independence for the
institution of the judicial as a whole and independence for the individual
judge at every point. If our liberties and freedom must be guaranteed, judicial
independence must be enhanced by all.
[1]
Badejogbin, R.E. and Onoriode, M.E., “Judicial Accountability and Discipline in
Nigeria: Imperatives for the New Democratic Order,” Justice Journal vol. 4
(2012) 17
[2] Nwabuze,
B.O, Judicialism in Common Wealth Africa, London: C. Hurst & Company, 1977,
280
[3] Azinge
Epipham and Rapu, F. Judith, “Roadmap to Judicial Transformation: through the
Lens of Retired and serving jurists of the Supreme Court.” Available online at www.nials-nigeria.org/journals/Azinge
and Judith. Roadmap to Judicial Transformation: pdf, 70 (Accessed September 6
2014)
[4] See
section 81 and 84 of the 1999 constitution.
[5] Femi
Falana, “Mukhtar and the Anti-Corruption war in the Judiciary”, The Punch
Newspaper, June 3, 2013, 68
[6] Akinwade
Omotolani, “The Impact of the Selection and Appointment of Judges in the
Judicial Process: The Nigerian Experience”, Young African Research Journal vol.
2 (2013) 38
[7] NJC
Guidelines and Procedural Rules 2003
[8] See
Paragraph E of Part II to the 3rd schedule to the 1999 constitution.
[9] T.A.
Aguda, The Judiciary in the Government of Nigeria ,
London
[10] Femi
Falena, the Anti-Corruption war in the Nigerian Judiciary: The Journey so far,”
in Abikan, A.I. and Ishola, A.S. (ed) Nigeria Judiciary: Contemporary Issues in
Administration of Justice: Essays in Honour of Hon. Justice Isa Ayo Salami, Ilorin : Nigeria
[11]
Umezulike Innocent, “Appointment of a Chief Judge of a State in Nigeria
[12] Agbelu
Oluseyi and Odewale, Olanike S. “The Employment Status of Judicial Officers and
its Effects on the Independence
[13] See S.
291 of the 1999 constitution.
[14] See S.
292 and the previous discussion on removal in chapter two of this work.
[15] See
principle 17-20 of the United Nations Basic Principles
[16]
Principle 1 of the 1985 Basic Principles
[17] Quoted
in Azinge and Judith Op. Cit, 79
[18] See
subsection (1) of section 84 of the constitution
[19] Yusuf,
O. Ali, “The Independence of Judiciary as a Panacea for Stability of Democracy
in Nigeria
[20] Dahiru
Mustapher JSC cited in Azinge & Judith Op. Cit 89
[21] Olisa
Agbakoba V. F.G, NJC & National Assembly, Unrep. Suit No.
FHC/ABI/CS/63/2013
[22] US
Agency for International Development, Guidance for Promoting Judicial
Independence and Impartiality, revised ed., 2002, 31
[23] Rosenn,
Keith S. “The Protection of Judicial Independence
n Latin America ,”Inter-American Law Review,
vol. 19 (1) (1987-1989) 15
[24] Azinge
and Judith, op cit, 90
[25] Ibid,
91
[26] Adebayo
V. Kolawole (1985) 6 NCLR 709, The Secretary, Iwo
[27] Edeka,
S.E, Fundamental Issues in Nigeria
Constitutional Law , Benin
[28] S. 56
(1), High Court Law of Cross
River State
[29] SBM
Serv (Nig.) Ltd & Ors V. Okon & Ors (2004) 9 NWLR (Pt. 879) 529
[30] Ibid
[31] See
Lord Denming M.R in Sirrros V. Moore (1974) 3 AER 776 at 782
[32] Ibid,
171
[33] Azinye
& Judith Op. Cit. 74
[34] Ibid,
82
[35] Buhari
V. INEC (2008) 19 NWLR (pt. 120) 246 at 412, 427-428
[36] (2007)
2 NWLR (Pt. 1017) 115 at 151-153
[37] Yusuf,
O. Ali, Op. Cit. 20
[38] (2008)
5 NWLR (Pt. 1080) 227, see also Ugwu V. Ararume (2007) 12 NWLR (pt. 1048) 367,
the case of Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 423 is another step to
sustaining democracy in Nigeria
[39]
Udechukwu, U.N., “The Courts and Politics in Nigeria today”, being a paper
presented at the National Conference on Nigerian Government and Politics,
1999-2004 at the University of Nigeria, Nsukka, April 22nd 2004, 110
[40] Ibid 13
[41] Yusuf,
O. Ali, Op. Cit., 26-27
[42] Cited
in Azinge & Judith Op. Cit, 87-88
[43] Salvador
CHAPTER
FOUR
4.1 Conclusion
This
essay has reviewed the process of appointment of judicial officers and the
process of independence of the judiciary cum Nigeria Nigeria
There
is need for judges who will make a positive impact on the whole process of
adjudication. To that effect, an independent appointing body is of great
importance as it will work judicial independence which men of all ages has
upheld to be sacrosanct.
In
chapter one the background of the study was given and key concepts like
separation of powers, checks and balances, judicial review and judicial powers
were discussed.
Montesquieu
argues that the reason for separation of powers is that there can be no
political freedom in a country where one and the same person or body of persons
make the laws, implements them, and act as arbiter when they are contravened.[1]
The doctrine of separation of powers is enshrined in our constitution to ensure
independence of each of the arms of government, that is, the legislature, the
executive and the judiciary. Each acts separately but within the confines of
the law or Constitution.[2]
There
is a general contention which I alluded to that an absolute theory of separation
of powers in which one organ of government function in complete isolation is
not viable. What is indeed practicable and desirable is a healthy relationship
between the three organs of government. In order to checkmate abuse of power by
one organ of government, the doctrine of checks and balances is apt. checks and
balances presupposes that one organ can challenge the exercise of power by
another organ where it is ultra vires. In other words one arm serves as a
watchdog or safeguard against any form of irregularity by the other branch (es).
While
discussing “judicial review, i.e., the power of the court to examine the
actions of other arms of government with a view to either uphold them or
invalidate them where necessary, I contended that judicial review is the
bedrock of democracy without which not only lives and liberty of the people
would be in jeopardy, the democratic rights and the effectiveness of one arm of
government may be rendered ineffectual by another arm of government.
Pursuant
to the provisions of the constitution, the judicial power of Nigeria
Though
Professor Nwabueze contended that a judge in the exercise of judicial power to
do justice, must not allow himself to be influenced by any other consideration
at all.[5]
A view too rigid in my view, he fails to consider the influence of public
policy in decisions of court and how it eventually establish a body of
principles to be used in the determination of future cases.[6]
The
judicial powers as exercised by the courts have its limitations. Under S. 6 (b)
(c) (d) of the Constitution, the judicial powers of the court shall not except
as otherwise provided by the Constitution, extend to any issue or question as
to whether any act or 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 2 of the constitution.
Chapter
two looked at the appointment process of judicial officers in Nigeria
The
appointment of judges is a function of the President or the Governor of a State
as the case may be. However the Judicial Service Commission and the National
Judicial Council assist in the process of appointing Judicial officers. The
role of the NJC is dependent on the wording of the appointment clause, namely
“on the recommendation of the National Judicial Council…”, “the National
Judicial Council shall have power to recommend to… from the list of persons
submitted by the State Judicial Service Commission…”.[7]
Though this provision appears clear enough, the NJC’s attitude in the
appointment process appears to go beyond recommendation. This is gleaned from the
facts of the current dispute in the appointment process of the Chief Judge of Rivers State
I
contended earlier that if the role of the NJC is merely to recommend in the
appointment process of judicial officers, the desire for judicial independence
may only remain myth. The notion of judicial independence finds expression in
the doctrine of separation of powers. If upon true construction of the
provision, the President or Governor is not bound by the recommendation of the
NJC, this raises many questions and poses as a threat to separation of powers
and judicial independence in particular. Thus, it is my opinion that it will
serve the best interest of the judiciary if the wordings of the constitution is
amended in a manner that will clearly bind the President or Governor to
consider the recommendation of the NJC because one can argue that what is the
use of recommending a judicial officer for appointment that will end up not
being appointed because the recommendation is not binding.
I
also questioned the composition of the NJC and the over-bearing power of the
Chief Justice of Nigeria to appoint about 19 members of the council out of the
23 which makeup its membership. The role which members of the Nigerian Bar
Association who are members of the council is to play as members of the council
also calls for question. I contended that the representatives of the NBA in the
council who were supposedly the true watchdog in the council should be given
greater role than what we have under the Constitution. I also questioned the
qualification for membership of the council as contained in S. 156 that the
same qualification for persons vying for membership of the House of
Representatives should be the qualification for its membership. This provision
is not only vague but also works against the independence of the NJC as well as
the judiciary.
Chapter
three examined the independence of the judiciary, the term judicial
independence embodies the concept that a judge decides cases fairly,
impartially and according to the facts and law, not according to whim,
prejudice or fear, the dictates of the legislature or executive or the latest
opinion poll.
The
judiciary is the third arm of government in accordance with our Constitution
and in accordance with the doctrine of separation of powers, independence of
the judiciary must be guaranteed and secured. To secure the independence of the
judiciary, government must grant to it true financial autonomy, and a full
self-accounting status. It is thus gratifying that the Federal High Court in a
case earlier referred to (Agakoba V. A.G. Federation, National Judicial Council
and the National Assembly) upheld the financial independence of the judiciary.
The
process of appointment of judicial officers definitely contributes to judicial
independence. To have an effective and efficient judiciary, the appointment of
judicial officers should be based on merit. But this is not the case in Nigeria
The
most alarming challenge which is recently impeding judicial independence is the
dangerous trend of press litigation in Nigeria
I
also examined factors that will aid independence of the judiciary. The factors
examined are:
a. Courage,
competence and integrity of the judex
b. Support
of the bar
c. Discerning
public
d. Financial
autonomy
e. Fearless, fair
and independent press
f. Willingness
of the executive arm/support of the legislature
g. Strong
sheriff department
h. Obedience
to court order by all and sundry including the executive arm unlike the current
trend in Nigeria
i. Wellbeing
of the judges.
The
independence of the judiciary is necessary for sustenance of democracy and
administration of justice and the rule of law. Judicial independence is two
fold: independence for the institution of the judiciary and independence for
the individual judge. Accordingly, the appointment of judicial officers should
be carefully carried out to secure independence of the individual judge. In the
same vein, the security of their tenure in office as enshrined in the Constitution
is sacrosanct.
There
is need for reform in the selection and appointment process of judicial
officers. This was my contention in chapters two and three supra. There is a
need for judges who will make a positive impact on the whole process of adjudication.
To that effect an independent appointing body is of great importance.
4.2 Recommendation
The
need for an independent appointment body is sacrosanct. The Judicial Service
Commission and the National Judicial Council should be manned by people of high
integrity who can be trusted to act independently.
In
the appointment process, the principle of equality and merit should be upheld;
accordingly the best amongst qualified people should be selected for
appointment. Thus nomination only by judicial officers as is the case today
should be reduced if not stopped. What should be the case is a full
participation of the NBA and the public in the appointment process, and it
should be open and transparent rather than the current process shrouded in
secrecy. It is therefore apt to recommend that practicing lawyers with sound
legal experience and knowledge couple with the required character should be the
ones considered for appointment. Distinguished jurist from the university or
academics should as well be considered as was the case with Dr. T.O.S. Elias.
Femi
Falana opined that the manner of appointment should be reviewed to prevent
lawyers of questionable character or who lacks the knowledge of law from
finding their way to the bench.[11]
In order to satisfy the requirement of sound legal knowledge, the entire
federation was called by Uthman to embrace the methodology currently applicable
in Lagos State
In
order to secure the necessary qualified persons for appointment as judicial
officers the NJC need to be independent and the persons manning the council
must possess the required pedigree. I will in this work adopt the
recommendation made by Abeni SAN where he sued for charges in the council. The
recommendations include:
1.
The person to be appointed as chairman of the Council
should be the immediate retired Chief justice in place of a serving Chief Justice
and such Chairman should serve till the time a serving Chief Justice retires
and assume the position of the Chairman of the Council.
2.
The five members from the Nigeria Bar Association
should participate in all activities of the Council.
3.
A standing investigating body of none-members of
the council should be constituted to carryout investigation.
4.
The number of appointees of the Chairman of the Council
should be reduced. Accordingly for independent of the members, the appointment
should be by a body other than the chairman of the Council.
5.
The power to appoint, suspend and discipline
judicial officers should be absolutely vested in the Council, thus the power of
recommendation to the executive for appointment and removal be removed from the
constitution.
I will also recommend that the Chief
Judges of states and the Chief Justice of Nigeria should not be based on
appointment by the Governor or President but on election either open to only
legal practitioners or the general public
It
is hoped that with the above recommendation if successfully entrenched in our
legal system we would have a better judiciary though not a perfect one.
[1] Espirit
Des Lois (Spirit of the Law) Chapt 11, 3-6, in Ese Malemi, The Nigerian
Constitutional Law, Lagos
[3] See S. 6
of the Constitution.
[4]
Nabaruwal V. Offordili (2005) 1 FWLR (pt. 248) 858 at 878
[5] Ben, O.
Nwabeuze, Judicialism in Commonwealth Africa, London
[6] See the
decision of the Supreme Court per Ogbuagu JSC in N.N.P.C V. Lutin Investment
Ltd & Anor (2006) 2 N.W.L.R. (pt. 965) 506, see also Commandclem Nig. Ltd
V. Mobil producing Nigeria Unlimited Suit No: S.C. 69/2011, decided April 8,
2013. Available online at community vanguardngr.com (Accessed September 8,
2014)
[7] See Para 21 (c) Part 1 of the 3rd schedule to the
Constitution.
[9] (2008)
19 NWLR (pt. 1120) 246 at 412, 427-428
[10] Bello V. A.G.
Lagos State
[11] Femi
Falana, “The Anti-Corruption War in the Nigerian Judiciary: The Journey So
Far,” in Abikan I. Abdulqadir & Ishola .S.
Abdullahi (ed.) Nigeria Judiciary. Contemporary Issues in Administration of
Justice: Essays in Honour of Hon Justice Isa Ayo Salami, Ilorin
[12] Kunle
Uthman, “The Reality and the Myth: How Independent are the JSC in filling
vacancies,” available online at accesstojustice-ng.org./ (accessed September 6,
2014)
BIBLIOGRAPHY
BOOKS
Akane,
Jadesola O., Introduction to the Constitution of the Federal
Republic of Nigeria
1999, Lagos
Ben,
O. Nwabueze, Judicialism in Common Wealth Africa, London
Edeko,
S.E., Fundamental Issues in Nigerian Constitutional Law , Benin
Ese
Malemi, The Nigerian Constitutional Law, Lagos
T.A.
Aguda, The Judiciary in the Government of Nigeria ,
London
U.S.
Agency for International Development, Guideline for Promoting Judicial
Independence and Impartiality, revised, 2002
Articles
Agbelu
Oluseyi and Odewale Olanike S., “The Employment Status of Judicial Officers and
its Effects on the Independence
Ajepe,
Taiwo Shehu & Mohammed, M. Akanbi, “Modeling Separation for
Constitutionalism: The Nigerian Approach,” Journal of Law, Policy and
Globalization vol. 3 (2012) 23
Azinge
Epiphany and Rapu, F. Judith, “Roadmap to Judicial Transformation: Through the
Lens of Retired and Serving Jurists of the Supreme Courts,” available online at
www.nials-nigeria.org/journals/AzingeandJudity-Roadmaptojudicialtransformation.pdf
(accessed September 6, 2014
Badejogbin,
Rebecca E. and Onoride Mercy Emetejide Judicial Accountability and Discipline
in Nigeria
Dadem,
Y.Y., “Removing the Judge: Challenges to Judicial Independence
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Femi
Falana, “Mukhtar and Anti-Corruption War in the Judiciary,” the Punch
Newspaper, June 3, 2013, 68
Guobadia,
Osahon O. “The Relevance of the Judiciary in a Democratic Nigeria
Kelly
Martin “American History a Constitutional Checks and Balances,” available
online at http://americanhistory. about.com/od/usconstitution/a/checksbalances.htm
(Accessed August 15, 2014)
Ogoloma
Fineface “The Theory of Separation of Powers in Nigeria
Omotalani
Akinwade, “The Impact of the Selection and Appointment of Judges on the
Judicial Process: The Nigerian Experience,” Young African Research, vol. 2
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Yusuf
Ali “The Evolution of Ideal Nigerian Judiciary in the New Millennium,” Nigerian
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CHAPTERS IN BOOKS
Abeni,
O. Mohammed “Constitutional Powers of the National Judicial Council,” in
Abikan, A.I. and Ishola, A.S., (ed.) Nigeria
Judiciary: Contemporary Issues in Administration of Justice: Essays in Honour
of Hon. Justice Isa Ayo Salami, Ilorin
Femi
Falana, “The Anti-Corruption War in the Nigerian Judiciary: The Journey so
Far,” in Abikan, A.I. and Ishola, A.S. (ed.) Nigeria
Judiciary: Contemporary Issues in Administration of Justice: Essays in Honour
of Hon. Justice Isa Ayo Salami, Ilorin
Okoye
A.O., “Issues in the Membership, Powers and Autonomy of the National Judicial
Council in Nigeria ,” in
Abikan, A.I., and Ishola, A.S. (ed)., Nigeria Judiciary: Contemporary Issues in
Administration of Justice Essays in Honour of Hon. Justice Isa Ayo Salami, Ilorin
Unpublished Articles
Kunle
Uthman “The Reality and the Myth: How Independent are the JSC in Filling
Vacancies,” a presentation made at the Lagos State Judicial Service Commission
Udechukwu,
U.N., “The Courts and Politics in Nigeria Today,” being the text of paper
presented at the National Conference on Nigerian Government and Politics,
1999-2004 at the University
of Nigeria
Yusuf
Ali “The Independence of the Judiciary as a panacea for Stability of Democracy
in Nigeria
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