By Afe Babalola
The Judiciary is the third arm of government in a democratic society. It is expected to dispense justice without fear or favour. It is essential in any constitutional democracy that the rule of law and constitutionalism to be guaranteed. This requires, among other things, according fair trial to the citizens under procedural regularity, adhering strictly to the laws of the land and checking arbitrary and capricious use of power by the executive, or its agencies.
To permit any interference with or usurpation of the authority of the court, as aforestated, will be tantamount to striking at that bulwark which the constitution in any democratic state or society gives and guarantees to the citizens in terms of fairness to him against all arbitrariness and oppression. The preservation of and non-interference with, the independence of the judiciary and the jurisdiction of the court are so important, if not indispensable, that most constitutions have specifically and expressly provided that neither the legislature nor the executive shall enact or purport to make any law that oust or purports to oust the jurisdiction of a court of law or judicial tribunal established by law.
The judiciary in Nigeria: Pre and Post-Independence Era
Nigerian legal system is derived from English Law. It, however, does not mean that there was no legal system in existence before the arrival of the colonialists. The autochthonous legal system in what is today, Nigeria, varies from societies to societies, but on the inception of colonialism, the common law principles, the doctrines of equity, together with the statutes of general application which were in force in England and on or before January 1, 1900; were made applicable to Nigeria as a Colonial territory of England. The various reception laws; first enacted in 1863 in respect of the Colony of Lagos, now contained in S.45 of the Law (Miscellaneous Provisions) Act 1964, transplanted from England to Nigeria, the English Common Law and doctrines of equity as well as statutes of general application in force in England on January 1, 1900.
This historic reception meant the application in Nigeria of principles of law and equity informed by the traditional social, economic and political conditions of England at the time. Some of the earlier judicial decisions cast clear reflections on the English feudal class structure and its influence on the power relations between ordinary Nigerians. The courts were set up by the colonialists to administer these laws. It has been queried whether indeed we can talk of Nigerian common law aside from the inherited law. It may be no more than an academic question but it is a legitimate one. English Judges were appointed to administer law and justice in Nigeria.
The Judiciary hierarchy remains basically the same as in England except that the administration of the received English Law took into account the native Laws and customs of the colonial territorial called Nigeria. In this regard, the judiciary in pre-independence Nigeria was empowered to administer both the English Law and Native Laws and Customs of the Colonial territory in so far as those native laws and customswere not repugnant to natural justice, equity and good conscience. Putting it another way, they must pass the “Repugnancy test”.
However such law-creating customs must be consistent, reasonable and certain.
The courts in Nigeria before independence include the Magistrate Courts, the Supreme Courts, the West African Court of Appeal, WACA, and the Privy Council, which until 1963 was Nigerian’s court of final appellate Jurisdiction. Up to independence 1960, the Nigerian Supreme Court exercised original Jurisdiction as a Supreme Court of records until we abolished the privy Council and set up our own Supreme Court with final appellate Jurisdiction and a new High Court was created to exercise original and unlimited Jurisdiction over both Criminal and Civil matters as a Court of Supreme records, this replacing the former Nigerian Supreme Court. To a very large extent, the Judiciary in pre-independence Nigeria fared reasonably well as they operated under the auspices of England and suzerainty of the English Colonial Masters. The spectre of Judiciary during the colonial era performed credibly well.
The English Judges were learned men who administered justice/ law accordingly, and the Colonial masters, both in their homeland and in the colony, did not overly interfere with administration of justice in their colonial territory, Nigeria. For example, cases, both civil and criminal, were tried in a timely manner and Judges of that era did not tolerate excessive and inordinate delay in the administration of Justice.
Nigeria gained her independence from colonial masters on October 1, 1960, and the Judiciary after independence assumed their role with robust passion and their role was expanded and more courts were created in various regions of the federation of Nigeria.
There are three basic considerations in looking at the competence of the Courts. These are: it must be properly constituted with respect to the number and qualification of its members, it has jurisdiction over the subject matter and the action is initiated by due process of Law.
There are also specialist courts established after Nigeria’s independence in 1960. For instance, the national Industrial Court (NIC) was established in 1979 by the Trade Dispute Act. Section 19 provides:
There shall be a National Industrial Court for Nigeria (in this part of this Act referred to as “the Court” ) which shall have such Jurisdiction and powers as are conferred on it by this or any other Act with respect to the settlement of trade dispute, the interpretation of collective agreements and matters connected therewith.
It is interesting to note that the Constitution in force when this specialised Court was established in 1976 was the 1963 Constitution, and there was no problem relating to the status of the court because the 1963 Constitution was amended to give Constitutional backing to the Court. But section 6 of the 1979 Constitution which conferred the judicial powers of the federation on the Courts, expressly stated that the only superior Courts of record in Nigeria were the ones listed in the section.The National Industrial Court was not one of them; it, therefore, came under section 6 (5), namely:
“Such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the national Assembly may make laws.”
This unfortunate omission created a loophole which parties often exploited to challenge the jurisdiction of the NIC and thereby hampered its effectiveness. The defect was apparently cured by the Trade Dispute (Amendment) Decree 1992, which legislation expressly made the NIC a superior court of record. It can be seen from the foregoing that the role of a strong and independent judiciary in Nation-building cuts across of every segment of the society or the Nation’s life as can be seen in relation to the role proactive and progressive of the NIC as a specialist court in Nigeria.
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