INDEPENDENCE OF THE JUDICIARY AND PUBLIC PERCEPTION A CASE STUDY OF JUSTICE WALTER ONNOGHEN

CHAPTER TWO

LITERATURE REVIEW

HISTORICAL DEVELOPMENT OF NIGERIAN JUDICIAL SYSTEM AND ANALYTICAL DISCOURSE

2.1 Introduction

The territories that made-up Nigeria had a very rich political and judicial system even though some were less formal like the Hausa/Fulani‟s Emirate system while others were not formal like the Igbo's and Yoruba's. These judicial systems have helped through the process and the eventual development of what seem to be the judiciary in present day Nigeria. Although, through the history of the various traditional judicial systems, the roles of the executive and the judicial arm were interwoven, as it is the executive that exercises judicial control, and he is seen a supreme in the chiefly territories like in the case of the Yoruba pre-colonial system.

However, these systems were structured in such a way that dispute settlement and orders were served with justice. Eventually, the colonial masters imported the British ways into these territories as a means of consolidating and legitimising colonial rule in Nigeria.[1] When these colonialists came into these territories, they set up their own judicial system so as to have firm control of the territories and final judicial decisions were reached by the Judicial Committee of Privy Council in England. These new structures were in place alongside the Native Courts system which was modified and the warrant Chiefs could now appoint judges and members of the Native Courts. They remained so until Nigeria attained her independence in 1960 and also became a Federation in 1963.

One spectacular development which took place in 1960 was the drafting of a

Constitution, even though it was made after the West Minster model and this now gave the Nigerian Judiciary its independence from the Executive and also, recognised it as a distinct arm of government. Although, appeals from the Federal Supreme Court still went to the Judicial

Committee of the Privy Council for final decisions until 1963 when Nigerian finally became a Federal Republic. One cannot forget to mention the historic case of Akintola v Aderemi which brought about the turnaround in the judiciary and finally in 1963 Nigeria amended its Constitution thereby removing the position of a final appeal to the Privy Council and subsequently the principle of stare decisis. Nevertheless, the Judges still reflected the colonial history until Justice Adetokunbo Ademola was appointed being the first indigenous Chief Justice and this brought about a new dawn in that, indigenous judges were now appointed. This development progressed until the various military interventions which occurred in the country at different periods in the history of the country. Nigeria endured eight (8) military coups having the first one in 1966, during these periods, the Constitutions were variously suspended and the independence of the judiciary were undermined,[2] as the Military Juntas were both Executives and Legislature, this caused an incessant executive lawlessness hence they promulgated decrees which ousted the powers and jurisdiction of the Court.

It does appear that this period caused a huge decay in the judiciary as some of the Judges got so corrupt and bowed to the pressures of the Military governments while the ones who were courageous stood still and went out of their way to preserve the Judicial sanctity and observance of the rule of law and also ensured the respect and upholding of the fundamental rights of all Nigerians.[3] Despite all these hindrances, the judiciary has thrived in the development of justice and has continued to live up to its Constitutional and historic role as the citadel of democracy and fundamental rights.

2.2 Historical Development of Nigerian Judiciary

The historical development of Nigeria Judiciary will be divided and discussed as thus:

i. History of the judiciary prior to colonialism ii. History of the judiciary during Colonial period iii. Post colonial period history

2.2.1 History of the Judiciary Prior to Colonialism

Before the advent of colonialism there seem to be nothing which existed as “Nigeria” as it was a large geographical area which covered areas such as the plains and seas of the territories now known as Nigeria. Nigeria in its current form is a combination of over 350 ethnic groups and 500 dialects.[4] These various ethnic groups had their different legal and justice systems even though some were informal while others semi-formal. The era marked a period where the people in different territories and geographical locations governed themselves by their traditional means and these systems varied from one region to another due to their linguistic and ethnic differences.[5] Although, some of the administrative systems were centralized or chiefly such as the Yoruba and the Hausa/Fulani whereas the others were decentralized or chief less and stateless such as the Igbo.[6] Broadly speaking, the traditional political systems prevalent in these regions prior to colonialism were in different categories:

1. Those ruled by strong men whether Emirs, Paramount Chiefs, Chiefs and Elders like the Hausa/Fulani and the Yoruba because in this political arrangement power was centralized in either individuals or ruling groups.
2. Regions where power was concentrated in any individual of which the people govern themselves like a mini-republic, a typical example of this is the Igbo clan system. Their mode of leadership made them appear more democratic.
3. A mixture of chiefdoms and republican system. Here power was sometimes concentrated and sometimes dispersed.[7]

The history of the judiciary will be discussed in three divisions viz:

1. The Northern Nigeria Judicial System;
2. The Igbo Judicial System;

(iii)The Yoruba Judicial System.

1. The Northern Nigeria Judicial System

The administrative structure which was dominant in Northern Nigeria (the Hausa/Fulani) was the Emirate System.8 Although, some areas like the Tiv areas who were more of a minority group were not ruled by the Emir as they were not Islamic converts.

The Emirate system was introduced in the 19th century by Usman Dan Fodio who was a

Fulani. The Fulani‟s were pastoral people who resided in the North and other parts of Africa, they were generally herdsmen and were into cattle rearing. They would travel distances in search for water and grazing land, hence, they get into contact with other ethnic groups.[8] In ancient times judicial duties were carried out by “Maudo Laawol Pulaaku” (Guardian of the Fulani way) who exercised judicial control over the clan. The “Fulani Way” consisted of a few major principles:

1. The right conduct which is essentially the practice of family virtues, and;
2. Fulfillment of duties towards elders, wives which enables smooth operation of the family and linage as economic and corporative units.[9] The Guardian of the Fulani Way was the judge and he had the power of banishing anyone who disobeys the Fulani Way.[10]

Following the Fulani Way, Usman Dan-Fodio who was a Fulani migrated to the Hausa Region to spread Islam, as the Hausa‟s were the more powerful ethnic groups and also dominated the Fulani. Usman Dan Fodio then waged a Holy war (Jihad) against the Hausa and conquered them and he established his empire therein.[11] The empire was shared among his two sons: The Sokoto Empire (East) and the Gwandu Empire (West) and subsequently other emirates were created and new emirs appointed by either the Sokoto or Gwandu Emirs. During this period until the advent of colonialism the Supreme law of the Emirate was the Islamic or Sharia Law (Laws of God). Where the laws are clear, they are enforced but where Islamic Law was silent, the Emir could make laws to ensure peace, order and good governance.13

The Emir was also a religious leader hence, he interpreted the Islamic laws to his people together with those laws as circumstances arose.[12] The judicial system in the Emirate was special, in that, its laws were Islamic religious laws including those enacted by the Emir and its interpretation could only be made by persons who are specially trained for that purpose and as such, those who were educated in Islamic Laws and principles were called “Alkalis” (for they interpreted Islamic or Sharia Laws).[13]

The Alkali Courts were set up in every Emirate with the purpose of performing judicial functions and interpreting Sharia Laws, they punished offenders according to Islamic/Sharia Laws. Although, in some circumstances, the Emir would sit in Court to settle land disputes or other issues not covered by Sharia Laws.[14] The Alkalis sit to hear and decide matters including matrimonial causes, inheritance, theft, debt, slander while the Emir tries such heinous crimes such as murder in his Court and the Emir‟s Court is the Supreme Court.

1. The Igbo Judicial System

Although, the origin of the Igbo still proves to be uncertain and open to research. The Igbo still had a very rich form of governance and conflict management despite its egalitarian nature. However, there existed different institutions tagged with judicial functions in pre-colonial Igbo places. The Igbo judicial system was practiced in land matters, inheritance issues and sundry issues.[15] The Igbo‟s had an “Informal Adjudicatory System”, their justice system was at different cadres; the Court having original jurisdiction in the Igbo land was the family Court also known as the „Court of the father (husband) or household Court[16]. In the family, the father being the head of the family adjudicates on matters arising from within his family including acts or omissions done by his wife(s) or children. The children are taught from birth on the way of life and the dos and don‟ts in the village and family. The father would convene a hearing on the matters arising in the family having the children and wives listen to his judgment and the person accused would call witnesses from within or outside the immediate family. Punishments were meted on them if found guilty such as denial of food, a slap on the cheek, rubbing of pepper in the eye, a knock on the head as this depends on how serious the offence was, the father‟s

authority was never questioned.[17]

Also, there was the Council of Elders or Ndi Amala, they adjudicated on certain matters which were beyond the family. In the Igbo places, each village was united by ties of consanguinity.[18] The Elders in Council sat to hear and decide matters which were inter-family and it could be civil or criminal. Where the matter was civil, the Council of Elders would mediate on it and make sure it settled it peacefully but where it had to do with a criminal offence, there are serious penalties attached to them, examples of such are; for issues involving theft and burglary, the culprit would be made to repay the victim by restoring back what he has stolen from the victim or compensate the victim; where it involves robbery and other like offences, the culprit would be made to dance naked in the village square and he would be beating seriously in the presence of the entire villagers then he would be allowed to go home.[19] The Council of Elders usually conducts the trials in the village square and it is usually open to all the villagers both young and old. Also, where it involves serious offences such as murder, manslaughter and other serious offences, the guilty person and his family may be permanently expelled from the village or be sent on exile for a period of time after wards they will return to the village or they could even be ostracized in the community as they would be required to buy from no one and no one would buy from them, neither would they be spoken to, either ways, their properties could be collected from them or be razed down by the youths as a means of appeasing the gods of the land.[20] Where there were issues of doubt and facts to be proved, the diviner or priest may be sought so as to ascertain the truth or identify the offender afterwards, the diviner would either use trial by ordeal to reach his conclusions or deliver the guilty person back to the hands of the elders in council.[21] The highest order of justice was the Oracle, where persons who have been adjudged by the Council of Elders who were not satisfied with the judgment, they could move to the Oracle, as the Oracle was believed to have supernatural powers which transcends to the supernatural realms to get answers to questions.[22] Sometimes, the Council of Elders could summon its accused before the Oracle for justice. The most famous Oracles before the coming of the colonial masters was the Long Juju (Ibini-Ukpabi) of Arochukwu.25

1. The Yoruba Judicial System

The Yoruba‟s had more organized system although it was not strictly formal but they had structures put up to settle their civil and criminal issues and these informal Court systems were used appropriately.[23] Although, it would be difficult to summarise the entire Yoruba System as they vary from group to group, even though they all claim their origin from Oduduwa.[24] It would worthy of note that before the coming of the colonialists Yoruba had a highly structured form of government consisting of the Executive, Legislature and Judiciary. The Oba was the highest in authority and serves as the executive, he was seen as a direct representative of Olodumare (God Almighty) and he is called Kabiyesi (who should we challenge or question?). He is the Supreme and he administers with his Chiefs in Council. They collectively promulgate laws and these laws are approved by their deities (Imale) and their ancestors (Osi)28 and these laws were widely accepted and obeyed by the people and thus given divine sanctions. Hence, anyone who flouts these laws were punished. Nevertheless, the enforcement of the laid rules was not solely done by the Oba and his Council of Chiefs, the Chiefs of various grades in specific towns and villages enforced these laws as well.[25]

The Yoruba hierarchy was recorded as forming from the Oba and his Igbimo (Council Chiefs) to the Adugbo (quarters) which was headed by the Olori Adugbo or Olori Itun, then the Agbo-Ile (extended family compound) headed by the Olori Ebi (head of the extended family) then the nuclear family headed by Baba (father) because the family makes up the administrative unit in traditional Yoruba, it is also a judicial branch of the Yoruba Traditional Society.[26] As a matter of fact, contentious matters were referred to the head of the family and where he could not settle the dispute, the matter would be taken to the Agbo-Ile and where the parties are dissatisfied with the outcome or there seem to be no solution, it would be taken up to the Oba.[27]

The traditional Court system which existed among pre-colonial Yoruba society could be divided into:

The first being the Court presided over by the father of the household. He settles disputes among his family members and maintained orderliness in the family. He would give his judgement after listening to both parties because the Yoruba‟s do not believe in apportioning blames on any individual rather to settle the matter amicably, based on this he would not declare anyone guilty and the other innocent.[28] But in civil matters, he would identify the wrong person and ask him to apologise to the other or he would tell the two of them to desist from bad behaviours, but where the parties are not satisfied with his judgement, they could move higher to the Olori Ebi‟s Court and this is done by reporting the matter to the Olori Ebi.

The second which is the Olori Ebi‟s Court, usually, the Olori Ebi is the oldest man in an extended family and the Oba does not influence his position or appointment. The Olori Ebi‟s

Court functioned as today‟s Court of Appeal to the Father‟s (Baba) Court.[29]The Olori Ebi would allow the accuser or appellant to state his case and witnesses and also the accused to witnesses. The Olori Ebi usually hears all the parties and would then give his judgment based on the contributions of all the persons present. He has jurisdiction to hear and determine civil cases.[30]

The third is the Olori Adugbo‟s Court, cases which involves members of two or more extended families would be transferred to his Court. The Adugbo is a combination of several compounds (Adugbo meaning Quarter) whether they are related or not by blood or marriage. The

Olori Adugbo served as a representative of his ward in the Oba‟s Council of Chiefs. He has the right to conduct preliminary investigations in criminal cases and he also has the approval and recognition of the Oba.[31]

The Olori Adugbo has jurisdiction to entertain mild criminal offences ranging from theft, adultery and witchcraft and also all appeals from the Olori Ebi‟s Court.[32] He gives judgment in conjunction with other Olori Adugbos whose members were not parties to the case at hand. Before judgment is passed every adult present, both male and female had the right to question or cross examine the both parties and their witnesses and these contributions are then summarised by the Olori Adugbos (quarter Heads) and of cause the matter would be settled amicably and the

Yoruba‟s would say „Enu agba lobi ti ri gbo‟ (Elders have the final say).[33] He would also place

fines on the parties or punish the one having more guilt.

The fourth is the Oba‟s Court, appeals from the Olori Adugbo goes to the Oba for final verdict. The Olori Adugbo is also a member of the Oba‟s cabinet but on appeal he would have to allow the other chiefs to make judgements on the matter since it is from his quarter but he would be the one to introduce the parties concerned.[34] After the Oba would have listened to the parties and the opinions of the Chiefs he would then give his judgement which is usually final and binding.[35]

(a) The Ogboni Cult as Judicial Organ in Pre-Colonial Yoruba

The Ogboni cult which was headed by the Oluwo is also responsible for judicial administration in some Yoruba places. The Ogboni Cult is a powerful secret society which was highly feared and revered because of its secret nature. It was made up of political and religious leaders and special priests.[36] They were also made up of elderly or senior citizens as the name goes (eni-ogbo or eni-agba) and they worshipped the „earth spirit‟ and their main function was judicial.[37] They had unlimited power to impose fines on criminals and to sanction any member who errs or reveals its secrets or procedures to others.[38]

2.2.2 History during Colonial Period

It has been stated in the course of this research that the territories that made up the country Nigeria had their various administrative and judicial structures even though some were purely informal while others were partly formal, but these systems were developed by the colonialists who laid the foundations for a contemporary adjudicatory system in Nigeria. These traditional Courts have now culminated into the modern Court systems that we have today. These traditional adjudicatory systems posed problems for these aliens when they came, as they were not used to the ways of life of these territories neither were they happy with being subject to the panels presided over by these natives, as a result, they introduced the „Consul Courts‟ overseen by the British government who appointed consuls to adjudicate on issues pertaining the indigenes and aliens.[39] The British government left the traditional Courts to settle disputes involving only indigenes while the consular Courts were to oversee treaties and control the British subjects in those territories.[40] However, after the cession of Lagos to the British Crown in 1861 by King Dosemu, the Europeans set up these counts of which some were by statutory provisions while the others by administrative arrangements.[41]Between 1843-1913, the British government, using the Foreign Jurisdiction Act of 1843 and 1893 respectively in the southern protectorate of Nigeria, promulgated laws establishing the Courts of Equity in 1854.[42] The main functions of the Courts of Equity was to administer commercial transactions between British subjects and non-British subjects and among the British subjects themselves, they were different from the Consular Courts as they were less technical and administer trade activities, while the Consular Courts administer justice and governance.[43] Prior to the amalgamation of the Southern and Northern Protectorates with the Colony of Lagos, the Supreme Court Ordinance of 1863 created the Supreme Court in the territory of Lagos but it was later replaced with the Court of Civil and Criminal Justice, which became the highest Court in the land, of which appeals from it goes to the West African Court of Appeal (WACA) seated in Sierra Leone and from which appeals further went up to the Judicial Committee of the Privy Council.[44] Subsequently, the British government established the Gold Coast Colony which comprised of Lagos and the Gold

Coast and also established a Supreme Court for the Colony by the Supreme Court Ordinance of

1876. This Court applied the Common Law, the Doctrines of Equity and the Statutes of General Application which came into Force on July 24, 1874. There was a three-tier hierarchy in the Court system comprising of the District Commissioner‟s Court, the Divisional Court and the Full Court and appeals went up in this order.[45]

In 1886 Lagos was removed from the Colony of the Gold Coast and there was the Colony and Protectorate of Lagos having surrounding territories added to it and a new Supreme Court was established for them with similar provisions with that of 1876.50 As a result of the dominance of the colonialists in trade activities which also resulted in political domination, the Royal Niger Company which was formally the National African Company and which carried on business in the territories along the River Niger through the Royal Charter guaranteed in 1886, was given the power to establish Courts to administer justice and govern its territories in cause of its operations, this lasted until the Charter was removed in 1899.[46] It is worthy of note that despite these Courts‟ creation, traditional African Courts still adjudicated on matters involving their indigenes even though, some of the indigenes had adopted the British ways of life and they were allowed to function so long as their activities were not repugnant to natural justice equity and good consciousness.

As a matter of fact, the difference between the Courts established in Lagos and that of the Northern and Southern protectorates was that in these protectorates, proclamations were introduced to establish Courts to administer English Laws while Natural Laws were administered by Native Courts which were established by separate proclamations. Nevertheless, both English and Native Courts were established and administered under the English law, apart from the native Courts in Lagos which was allowed to function without the interference or influence of English law.[47]

Also, the Supreme Court of Lagos had both civil and criminal jurisdiction, while the Supreme Court for the Southern Protectorate exercised the same authority and jurisdictions vested in Her Majesty High Court of Justice in England.[48] Nevertheless, in 1906, both the Colony and Protectorate of Lagos and the Protectorate of Southern Nigeria were unified and the Native Court System was established in Lagos by virtue of the Native Courts Ordinance of 1906, they exercised both civil and criminal Jurisdiction. Although the non-existence of the native control in the Southern Protectorate lessened the efficacy of the Native Court System, whereas the Emirs in the Northern Protectorate were in charge and appointed members of the Native Courts and this strengthened the system.[49] But a combination of all the territories (the Northern and Southern Protectorate was done in 1914 and this ended the old era and there were also established a Supreme Court, a Provincial Court and Native Court through proclamations. These Native Courts were given the authority to administer civil and criminal matters involving

Natives, with the exemption of some classes of natives who were subjected to the Native Court‟s Jurisdiction only if they or their residents concedes to it and it is usually in terms of civil matters or where it involves criminal matters if they or the lieutenant Governor consents to it.55

These persons would include: (a.) Government Servants (b.) Natives who are not necessarily subject to the Courts‟ authority and who were residing permanently in the territories under the Courts authority.[50] Subsequently, in 1933 the Provincial was repealed and replaced with the Protectorate Courts Ordinance of 1933 which now established a High Court and Magistrate Courts while the Supreme Courts still remained for the colony. These Courts had original and appellate jurisdiction in matters which relates to English law.57

Appeals from the Native Courts went to the Magistrate Court or High Court while appeals from the Magistrate Court went to the High Courts and appeals from the High Court went to the Supreme Court and that of the Supreme Court went to the West African Court of

Appeal (WACA) and appeals from the West African Court of Appeal went to the Privy Council[51]. However, the sub-division still existed between the Native Courts and English Courts system and as such certain matters especially those relating to customary law, the English Courts did not administer[52]. But there were changes by 1943 and Magistrate Courts were created in all parts of the Country and the Court systems in all parts of the Country were unified. The British government now created a Supreme Court of Nigeria to administer the entire country.[53] Nevertheless, the Native Courts continued to exercise exclusive jurisdiction over matters such as marriage, family status, custody of children, inheritance and estate administration.[54]

In 1945, the Federal Supreme Court now presided over by the Chief Justice of the Federation was created and there were established High Courts for Lagos and for the three regions and also Magistrate Courts for the different parts of the nation. The High Courts were presided over by a Chief Judge respectively. Appeals lay from the Regional Courts to the Federal

Supreme Court while appeals from the Native Court Grade A in the North and Customary Court in the South went to the Regional High Courts.[55] Also there were established the Sharia Court of Appeal to administer Islamic Laws and appeals went from the Native Courts to the Sharia Court of Appeal and in the event where conflict arises between the High Court and the Sharia Court of

Appeal, a Court of Resolution was created by virtue of the Court of Resolution Law (No. 17) 1960 to resolve the conflict.[56]

2.2.3 Post-Colonial Period History

Nigeria gained its independence in 1960 after its Nationalist struggle and this gave rise to structural change in the administration of affairs but the structures laid down by the colonialist remained. However, each region had its own High Court, Magistrate Courts and Customary or Native Courts while there was a Federal Supreme Court which administered the entire country, although the Judicial Committee of the Privy Council still remained the highest Court. Subsequently, there was enacted a Constitution (Independence Constitution 1960) and it abolished the criminal jurisdiction under customary law and it stipulates that no one shall be convicted of any offence which is not contained in any written law except for contempt of Court, and this still remains the current position in Nigeria.[57][58]

Thus in 1963, Nigeria became a Republic and was completely liberated from the claws of England, and as such a new Constitution was enacted[59] and this Constitution now made the Supreme Court of Nigeria, the highest Court in Nigeria, hence, the Mid-Western Region which was created from the old Western Region came into existence and then the Native Courts in the Northern Region were changed to “Area Courts”.[60] After these periods, the whole structures

were affected by Military coups in January and July 1966 respectively.67

Hence in 1967, Nigeria became a Federation of 12 states with each having its own judiciary, under the States (Creation and Transitional Provisions) Decree No. 17 of 1967. And by virtue of the Court of Appeal Edict No. 15 of 1969, the Western States created a Regional Court of Appeal. Also by the Federal Revenue Court Decree No. 13 of 1973 the Federal Revenue Court was established to administer cases resulting from the Federal Government Revenue all over the country.[61]

2.2.4. Judiciary under the 1999 Nigerian Constitution

The 1999 Constitution of the Federal Republic of Nigeria ushered in a new era in the dispensation of justice in Nigeria. The 1999 Constitution of Nigeria, provides for the Judiciary and defined what we have now as Judiciary in Section 6 and Sections 230-296 (Chapter VII) respectively.

The Constitution placed on the Judiciary the duty and function of administering justice in

Nigeria and it is also one of the three arms of government alongside the Executive and Legislature. The Constitution provides in section 6 thus:

1. The judicial powers of the Federation shall be vested in the Courts to which this Section relates, being Courts established for the Federation.
2. The judicial powers of a state shall be vested in the Courts to which this section relates, being Courts established, subject as provided by this Constitution, for a State.
3. The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) - (i) of this Section shall be the only superior Courts of record in Nigeria; and same as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each Court shall have all the powers of a superior Court or record.
4. Nothing in the foregoing provisions of this section shall be constrained as precluding:
5. The National Assembly or any House of Assembly from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court.
6. The National Assembly, which does not require it, from abolishing any Court which it has power to establish or which it has brought into being.

(5) This section relates to-

1. The Supreme Court of Nigeria
2. The Court of Appeal
3. The Federal High Court
4. The High Court of the Federal Capital Territory, Abuja
5. A High Court of a state
6. The Sharia Court of Appeal of the Federal Capital Territory, Abuja
7. A Sharia Court of Appeal of a State.
8. The Customary Court of Appeal of the Federal Capital Territory, Abuja
9. A Customary Court of Appeal of a State
10. Such other Courts as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which House of Assembly may make laws; and
11. Such other Courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.

(6) The judicial powers vested in accordance with the foregoing provisions of this section-

1. Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law.
2. Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating there to, for the determination of any question as to the civil rights and obligations of that person.
3. Shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directives Principles of State Policy set out in Chapter II of this Constitution.
4. Shall not, as from the date when this Section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such laws.

Section 6(6) of the Constitution therefore stipulates the extent of the judicial powers of the Courts and these powers were further explained in Ladejobi vs Oguntayo[62] Therefore, under the 1999 Constitution, the Courts recognised as making up the Nigerian Judiciary are the Courts as mentioned in the Constitution, but it is noteworthy that the establishment of a Sharia Court of Appeal or a Customary Court of Appeal by a State is optional.[63]

Although, the 1999 Constitution was modeled after its predecessor, the 1979 Constitution which was short lived, the 1999 Constitution provides for the establishment of the National

Judicial Council which recommends Justice and Judges for appointment by the Executive, the Council also recommends the removal of these Judicial Officers from office and exercise disciplinary authority over them. It also collects, manages, disburse money, capital and revenues for the Nigerian judiciary.[64] There is also the Federal Judicial Service Commission, they act as advisers to the National Judicial council in the nomination of Judicial Officers and also recommend the removal of these officers from office. It appoints, dismisses and disciplines the

Chief Registrars and Deputy Chief Registrars of the Supreme Court, Court of Appeal and the Federal High Court and there is also the State Judicial Service Commission.[65]

2.3 An Overview of Nigerian Courts

The Nigerian Judiciary so far has thrived tremendously in its administration and development. It does appear that Nigerian Judiciary has grown to its state of independence under the 1999 Constitution (as amended) but this has not fully been attained.

The regular Court System comprises of the Federal and State Courts, and as a result, the

Court of first instance includes the Magistrate or District Courts, Customary or Traditional Courts, Sharia Courts and some other Special Courts for specified cases.[66] While the Legislature is responsible for making laws and the Executive responsible for the implementation of these laws, the Judiciary is charged with the responsibility of interpreting these laws in line with the provisions of the Constitution, following the doctrine of separation of powers, which stands as the foundation of every democracy. The Constitution guarantees the independence of the Nigerian Judiciary and prohibits the promulgation of any laws that would oust its powers.[67]

The Constitution provides for the establishment of Federal Courts and State Courts as well as Election Tribunals and other Courts.

1. The Federal Courts include:

1. The Supreme Court
2. The Court of Appeal
3. The Federal High Court
4. High Court of the Federal Capital Territory, Abuja
5. The Sharia Court of Appeal of the Federal Capital Territory Abuja
6. (f) The Customary Court of Appeal of the Federal Capital Territory Abuja

2. The State Courts comprise of:

1. The High Court of the 36 States of the Federation
2. The Customary Court of Appeal
3. Sharia Court of Appeal
4. The Election Tribunals
5. Other Courts could include:
6. Magistrate Courts
7. Area Courts
8. Sharia Courts
9. Customary Courts

The President appoints with the recommendation of the National Judicial Council and subject to the confirmation of the National Assembly, the following Officers: The Chief Justice of Nigeria, the President of the Court of Appeal, the Chief Judge of the Federal High Court and the Chief Judge of the High Court of the Federal Capital Territory Abuja, the Grand Khadi of the

Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President of the Customary Court of Appeal of the Federal Capital Territory Abuja and all other Judicial appointments into the Federal Courts.[68]

While the various State Governors appoints with the recommendations of the National Judicial Council and the confirmation of State House of Assembly, the President of the customary of Appeal the Grand Khadi of the Sharia Court of Appeal of their states, (where applicable) and all other Judicial appointments in the state.76

[1] Nkum, K.J.(2015)„Evolution and Achievements of the Judiciary‟

[2] Ibid

[3] Ibid.

[4] National Open University of Nigeria, „Nigerian Legal System II‟ (Law 212, 2011)

<http://www.nou.edu.ng/uploads/NOUN_OCL/pdf/Laws/Law%20212%20Nigerian%20Legal%20System%20II.pdf> accessed 16/10/2016.

[5] Oyediji O.B, (2014) „Nigeria Before Colonialism: re-Colonial Administration in Nigeria‟

<https://profseunoyediji.wordpress.com/2014/03/16/Nigeria-before-colonialism-pre-colonial-administration-in-Nigeria/> accessed 17/10/2016.

[6] Ibid.

[7] Leo Dave and Anthony Oyewole,(1983)A’ Level Government Text Book for West Africa, Oribonoje Press and Book Industries Nig. Limited, p. 66. 8Ibid.

[8] Ayittey, G.N. (2012) „STATELESS SOCIETIES: The Igbo, The Fulani, The Somalia‟

<https://seunfakze.wordpress.com/2012/02/21/stateless-societies-the-igbo-the-fulani-the-somali-by-prof-g-n-ayittey/> accessed 17/10/2016.

[9] Carlston, K. S. (1968) Social Theory and African Tribal Organisation. University of Chicago Press, p. 151.

[10] Ibid.

[11] Leo D. and Anthony O. (1983) A’ Level Government Text Book for West Africa. Onibonoje Press and Book Industries Nig. Limited, p. 67. 13Ibid.

[12] Ibid.

[13] Ibid.,p. 68.

[14] Ibid.

[15] Oreagbunam, I.K.E. (2009) „The Principle and Practice of Justice in Traditional Igbo Jurisprudence‟ (6) (1) OGIRISI: A New Journal of African Studies, <file:///C:/Users/Udodirim/Downloads/52335-80363-1-PB.pdf> accessed 18/10/2016.

[16] Chris, D. „POLITICS: Using any Pre-Colonial African System, Discuss the Interplay between Politics and Law‟ (Politics: Contemporary Political Issues Updates, 3/3/2015) <http://www.chrisdonasco.blogspot.com.ng/2015/03/using-any-pre-colonialafrican-system.html?m=1> accessed 18/10/2016.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid. 25 Ibid.

[23] Onadeko, T. (2008) Yoruba Traditional Adjudicatory Systems. African Study Monographs, pp. 15-28.

[24] Ibid. 28Ibid

[25]Ibid.

[26] Ibid.

[27] Ali, Y. (2001)The Evolution of Ideal Nigerian Judiciary in the New Millennium. Nigerian Bar Journal. Vol. 1, pp. 39 – 56.

<http://www.yusufali.net/articles/THE_EVOLUTION_OF_IDEAL_NIGERIAN_JUDICIARY_IN_THE_NEW_MILLENNIUM.pdf> accessed 21/10/2016.

[28] Onadeko, T. (2008) Yoruba Traditional Adjudicatory Systems. African Study Monographs. pp. 15-28.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33]Ibid.

[34] Ibid.

[35] Ibid.

[36] Yorupedia, Yoruba Culture: Political Culture,<http://yorupedia.com/subjects/yoruba-culture/political-culture/> accessed 21/10/2016.

[37] Settling of disputes which are grave especially where it involves the shedding of blood on earth.

[38] Yorupedia, Yoruba Culture: Political Culture, op.cit.

[39] Ojomo, E. (2012) History of the Nigerian Judicial System: Introduction to Law (JIL 001). University of Lagos, 5<http://www.yararena.org/uploads/Topic%20Two%20%20History%20of%20the%20Nigerian%20Judicial%20System.pdf> accessed 21/10/2016.

[40] These consular Courts were frantically modeled after the British system.

[41] Duru, O.W.C. (2012) The Role and Historical Development of the Judiciary in Nigeria.

<https://www.academia.edu/5185440/THE_ROLE_AND_HISTORICAL_DEVELOPMENT_OF_THE_JUDICIARY_IN_NIGERIA> accessed 21/10/2016.

[42] Ibid.

[43] Ojomo, E. Op.cit.

[44] Duru, O.W.C. The Role and Historical Development of the Judiciary in Nigeria (2012) 4 <https://www.academia.edu/5185440/The_Role_and_Historical_Development_of_the_Judiciary_in_Nigeria> accessed 21/10/2016.

[45] Ojomo, E.Op .cit. p.5 50 Op.cit.

[46] Duru, O.W.C. Op.cit. p.4

[47] Ibid.

[48] Obilade, A.O., (1979) Nigerian Legal System. Sweet and Maxwell. p. 27. This period covers the period between 1863 and 1900.

[49] Ibid. 55 Ibid.

[50] Ibid. 57 Ibid.

[51] There were Native Court Ordinances and West African Court of Appeal Ordinance of 1933 respectively.

[52] Obilade, A. O. (1979) Nigerian Legal System. Sweet and Maxwell, pp. 29 - 31.

[53] Ibid.

[54] Ibid., p. 32.

[55] The Native Courts in the North and Customary Courts in the South administered Customary law while the Regional Courts applied English Laws and the Native Courts were established by laws enacted by the various regions.

[56] Obilade, Op.cit., p. 35.

[57] Ojomo, E. History of the Nigerian Judicial System: Introduction to Law (JIL 001) (University of Lagos,

[58] )8<http://www.yararena.org/uploads/Topic%20Two%20%20History%20of%20the%20Nigerian%20Judicial%20System.pdf> accessed 21/10/2016.

[59] The new Constitution enacted was the 1963 Constitution.

[60] Ojomo, E. Op.Cit. p.5 67 Ibid.

[61] Duru, O.W.C. (2012) The Role and Historical Development of the Judiciary in Nigeria. 5

<https://www.academia.edu/5185440/The_Role_and_Historical_Development_of_the_Judiciary_in_Nigeria> accessed 21/10/2016.

[62] (2001) F.W.L.R. pt.45, 793

[63] Ali, Y. „The Evolution of Ideal Nigerian Judiciary in the New Millennium‟ (2001) (1) (1) Nigerian Bar

Journal,6<http://Www.Yusufali.Net/Articles/The_Evolution_of_Ideal_Nigerian_Judiciary_in_the_New_MillenniuM.pdf> accessed 21/10/2016.

[64] Sections 153 (1) i and Sections 162(1) a, and the Third Schedule Part 1, Paragraph 20, Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[65] Sections 153(1) (e) and 197 (1) (c), and the Third Schedule, Part 1, Paragraph 12. Constitution of the Federal Republic of Nigeria, 1999 (as amended) See also, A M Sani, „The Nigerian Judiciary Trends since Independence‟ (2009) (5)The University of

Ilorin Law Journal<https://www.unilorin.edu.ng/ejournals/index.php/uilj/article/view/998/553>

[66] Section 6 (a – k) Constitution of the Federal Republic of Nigeria, 1999 (as amended).

[67] Ibid. Section 4 (8)

[68] Efevwerhan D. I. (2007). Principles of Civil Procedure in Nigeria. Enugu: Chenglo Limited. p. 6276Ibid.