PROBLEMS AND PROSPECTS OF JUDICIAL ADMINISTRATION IN NIGERIA

CHAPTER TWO

REVIEW OF LITERATURE

2.1 INTRODUCTION

Our focus in this chapter is to critically examine relevant literature that would assist in explaining the research problem and furthermore recognize the efforts of scholars who had previously contributed immensely to similar research.

2.2 CONCEPTUAL FRAMEWORK

JUDICIARY

The word “Judiciary” has been defined as the court system of a country. It is the branch of Government vested with the judicial powers.

Wikipedia, the free encyclopedia (2013) denotes the judiciary (also known as the judicial system) as the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the legislature) or enforce law (which is the responsibility of the executive), but rather interprets law and applies it to the facts of each case. This branch of the state is often tasked with ensuring equal justice under law. It usually consists of a court of final appeal (called the "Supreme court" or "Constitutional court"), together with lower courts. Regarding this paper the word “Judiciary” is defined as the court of a country. It is the branch of Government vested with judicial powers. It is generally regarded as the third arm of government. The function of the judiciary is the interpretation of the laws enacted by the legislature.

In Nigeria, It is the third arm of government. The function of the judiciary is the interpretation of the laws enacted by the legislature. While the legislature is responsible for making laws and the executive is charged with the implementation of such law, the judiciary is responsible for the interpretation of such laws in accordance with the provisions of the constitution. In line with the doctrine of separation of powers, which is a cardinal feature of a democratic system, the Nigerian Constitution guarantees the independence of the judiciary. By virtue of Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), the Judiciary is vested with the power/authority and jurisdiction to adjudicate on all matters between citizens inter se, citizens and government and government against government. This responsibility is daunting and awesome. Judges hold justice in trust for God Who is the ultimate Judge. Justice is so central to man as well as to democratic norms and governance (Jones M. & Eucharia S. 2017).

Pursuant to the above provision, of our Constitution, the Courts recognized as constituting the judiciary are the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory Abuja, the Customary Court of Appeal, Abuja, the States High Courts, the Sharia Court of Appeal of the States, National Industrial Court, and the Customary Court of Appeal of the states. These courts are vested with the functions or duties of dispensing justice, in accordance with jurisdiction vested in them.

The Judiciary and its Roles

The principle of separation of power recommends three branches of government namely; the executive, legislature and the judiciary. The executive for instance is responsible for the day to day running and administration of the entire country, the legislature drafts and passes bills into law and the judiciary is responsible for justice administration and enforcement of the law. Black’s Law Dictionary defines the term ‘judiciary’ as ‘the branch of government responsible for interpreting the laws and administering justice. A system of courts. A body of judges’(Black's Law Dictionary, 1999). By virtue of Section 6 (1-3) of the 1999 constitution (as amended) of the Federal Republic of Nigeria, all cases (civil or criminal) including economic and financial crimes must be referred to the court of law for adjudication. For this reason, no institution or body can condemn anyone or organization based on any investigation or evidence except the court or tribunal established by the law. The judiciary is therefore enriched by the law not only with the power to deliver judgment and settle dispute through the court but also to enforce, uphold and protect the constitution and the civil and fundamental rights of the citizens. Garner in Ghai, (2016) observed the indispensability of the judiciary in a well organised society by saying that; ‘a society without legislature is conceivable, indeed, legislative organs did not make their appearance in the state until modern times, but a civilized state without a judicial organ and machinery is hardly conceivable’.

The legal system therefore plays a very critical role in the maintenance of law and order to ensure peace, justice and development. In order to maintain peace and justice adequately, the judicial arm of government is charged with the responsibility of defending and upholding the rule of law and the entire structure and institutions that form or make up the legal system. Thus, the fundamental role of the judiciary (through the court) is to uphold the constitution and protect the constitutional rights of every single individual of a nation by integrating, constructing and applying laws in resolving disputes and checkmating any transgresses. Lobo, (2012) noted that judiciary is the ultimate interpreter of constitution and it is also an institution that clearly defines the scope and limit of powers of other arms of government. Bayır, (2013) also noted that the judiciary is the last hope of a common man because it is an institution that guarantees equal access to justice. Onyekachi (2012) gave a comprehensive description and function of judiciary by saying that it plays an unquantifiable role in the administration of justice, decides the outcomes of elections if challenged by defeated and aggrieved candidates, determines the legality of various kinds of behaviour referred to it by litigants, plays an active role in impeachment proceedings, actively participate in corruption investigation and prosecution.

An independent judiciary is universally acknowledged as one of the hallmarks and definitive features of a functional democracy. Many, in fact, see it as an essential bulwark against abuse of power, authoritarianism and arbitrariness. How it functions as well as how the various stakeholders in a democratic government appropriate its interventions and role in the polity, are critical indicators of the vibrancy of a nation's democracy. There seems to be nowhere in the world presently, where this reality is more apt as it is in Nigeria, one of the world's largest democracies with a population of over 160 million people.The judiciary has played the following role in the democratic system of Nigeria

Upholding the Rule of Law

Nigerian judiciary, in the last 16 years, has tremendously helped to shape democracy. As the third arm of the government, it has clearly played its role in deepening democracy with several landmark decisions. The centrality of the judiciary in the scheme of democracy is manifestly acknowledged where and when there is a deeply ingrained tradition of fidelity to the rule of law. Even decisions of inferior courts remain the law until set aside by a higher court, Where and when there is a consensus on the rule of law, everyone quite easily comes to terms with the vibrant role of the judiciary. Failure by misguided elements to pay credence to the overarching role of the courts, more often than not, leads to a state of anarchy or lawlessness, with dire consequences for the entire polity. The reason for this is obvious: rule of law is the glue that holds society together and when this fact is ignored, the tendency is for a reversion to anarchy. Yet, it hardly needs emphasis that the interests of a developing country, such as ours, are better served by untrammeled and unwavering commitment to the rule of law. The more people avail themselves of the judicial process, the brighter the prospects for democratic governance, social stability and general wellbeing of the polity. Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its fit course.The courts expect the utmost respect of the law from the government itself which rule by law.

Protection of Fundamental Rights

Another notable feature of democracy is the protection and preservation of fundamental human rights. The judiciary plays a more important role than any other form of individual, group or arm of government in this connection. In a line of authorities the Judiciary has demonstrated its resolve to enthrone democratic values in the system. The judiciary is not resting.

The judiciary especially the Supreme Court in particular, is an essential integral arm in the governance of the nation. It is the guardian of the Constitution charged with the sacred responsibility of dispensing justice for the purposes of safe guarding and protecting the Constitution and its goals. The judiciary, when properly invoked, has a fundamental role to play in the structure of governance by checking the activities of the other organs of government and promoting good governance, respect for individual rights and fundamental liberties and also ensuring the achievement of the goals of the Constitution and not allow the defeat of such good goals and intendments. It is the duty of the Court to keep the government faithful to the goals of democracy, good governance for the benefit of the citizens as demanded by the Constitution. The Supreme Court has the sacred duty to translate into actuality the noble ideas expressed in the basic law, give flesh and blood, in fact life, to the abstract concepts of freedom, liberty, transparency, a society free from corruption, abuse of power and all the noble goals articulated and reiterated in the Constitution.” It is noteworthy that the Nigerian judiciary is at the vanguard of our quest to attain the ideal democracy. As the harbinger of hope and repository of trust and confidence, has worked assiduously in ensuring that Nigeria's nascent democracy is rooted in the rule of law.

Protection of democratic values

Of all the three arms of government, the judiciary in Nigeria has remained the most disciplined, sober, reflective, diligent, patriotic, committed to the goal of democracy and, indeed, it is the glue that is holding Nigeria together. The judiciary has stood its ground and stood on guard for Nigeria and Nigerians on one hand and the preservation of Nigeria's nascent democracy on the other hand. The crucial role of the judiciary in the protection of democratic values is further illustrated by reference to the mad spate of impeachment of Chief Executives at the State level that took place under the Obasanjo Presidency. Rashidi Ladoja of Oyo State, Joshua Dariye of Plateau State and Peter Obi of Anambra State were removed from office in flagrant and arrogant breach of the clear provisions of the Constitution, as contained in Section 188 to the effect that certain mandatory and peremptory conditions must be fulfilled by the Legislature before a Governor can be impeached/removed.

INDEPENDENCE OF THE JUDICIARY

An independent, impartial and informed judiciary holds a central place in the apprehension of a good, transparent and accountable government. This is necessarily made possible by the provision that charges the judiciary with the function and responsibility to determine all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating to the determination to any question as to the civil rights and obligations of any person [Ibid].

Judicial independence can be defined as the total freedom of the judicial arm from the other two arms (Executive and Legislature) of government. The purpose of this is to ensure the entrenchment of democracy.

Independence protects the judicial institution from the Executive and from the Legislature. As such, it lies at the very heart of the separation of powers. Other arms of governance are accountable to the people, but the Judiciary – and the Judiciary alone – is accountable to a higher value and to standards of judicial rectitude(UN 1985 cited in Oladotun G. 2016).

It is on this basis that the United Nations adopted basic principles on the independence of the judiciary. That is, before it can be held that the judiciary is truly independent, these principles have to be in place. These principles are;

• 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 governmental and other institutions to respect and observe the independence of the Judiciary.
• The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
• The judiciary have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
• There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the court be subject to revision. The principle is without prejudice to judicial review or to mitigation or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
• Everyone shall have the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.
• The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
• It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.

The process of judicial administration

The relationship between law and the court is perhaps similar to that between siamese twins. One can hardly be discussed without the other. Indeed some jurists have defined law almost exclusively in terms of the decision of the court. Salmon defined law as “the body of principles recognized and applied by the state in the administration of justice”1 . Gray (1921) is even more radical in his reliance upon the court for his conception of law. According to him, “the law of a state or any organized body of men is composed of the rules which the court that is, the judicial organs of that body, lay down for the determination of legal rights and duties”. Holmes (1887) defined law in terms of the „prophesies‟ of what the court would decide. Although these perspectives of the eminent jurists have been criticized as being unduly restrictive, as they ignore other critical dimensions of the phenomenon4 , it does show the pivotal role of the court in the administration of justice. The process of adjudication involves a decision for one of two value choices. In common law legal systems, disputes are generally determined by the practice of following earlier decisions based on similar facts and principles. In other words, law and justice are administered in accordance with what have been done in previous cases (Karibi-Whyte, 1993) . But there may be situations where previous principles are not exactly applicable. In such cases, the existing principles are to be adopted or extended in reaching a solution in deciding the new situation. This practice is described as analogical extension from previous decisions that results in the ability of the judge to decide any dispute before him. It is the logical plentitude of the law6 The process of judicial reasoning may take the form of inductive approach as in the common law system or deductive method of the civil or code system. In the latter, the law is deduced from the general legal rules in the code and applied to the particular circumstance before the judge. The decision is not necessarily based on any previous decisions of court or tribunal, superior or coordinate. Thus in the code system, individual principles do not constitute authority for the subsequent cases. In case of inductive approach, as said earlier, the judge applies the principles in previous cases with similar facts to the present case. The use of this method is closely linked with the hierarchical structure of the court system, stare decisis, the doctrine of binding precedent and efficient law reporting system. A judge is also mandatorily required by the common law concept of ubi jus ubi remedium not to refuse to decide a case before him on the ground that the existing law does not cover it .

In these circumstances, the court will have to adapt or extend existing principles in reaching a solution in deciding the new situations , or fall back on the general principles of equity, doing what is fair and just to the parties. The inductive approach has been criticized as slow and inefficient in developing the law. Judicial process founded on inductive reasoning has also been assailed as fallacy. Poet Tennyson has observed in his own criticism: “the lawless science of our law that codeless myriad of precedent That wilderness of single instances”. It seems now widely accepted that law cannot do away with methods of logic if it must maintain its hold on rationality, this is because “law consists of abstract rules which attempts to reduce to order the unconnected facts of life”. Methods of logic become indispensable to achieve this goal. Discretion is also an element of the process of adjudication. Even though law is regarded as a body of rules the use of discretion will ensure that the rules are administered to meet the demands of justice in varying circumstances. It enables the judge to do justice within the limits of the rules of law, “the elastic nature of general standards and the rational application demands the exercise of discretion in the administration of justice” The exercise of discretion outside the ambit of existing rules of law has however been a subject of controversy.

Professor Hart (1961) has expressed the view that in cases in which the established legal rules fail to provide a single clear answer either because no rule seems to cover the case or because the applicable rule is vague, the judge should exercise his discretion. But Dworkin, another academic in Jurisprudence at Oxford University, countered, saying the exercise of this type of discretion is politically undesirable for judges and that in any event, there was no need for them to do so. He contended that a mature legal system has implicit legal principles which could be deduced from the general principles of the legal system.

According to Dworkin (2013) conception of the judicial function, the good judge is that who understands in- depth his legal system and is able to distill the principles which are embedded in it and gives effect to these principles in his judgment.15An approach which radically departs from the method of logic stated earlier was advanced by a popular movement for free law. It was an approach spurred by disenchantment with the methods of logic and its attendant rigidity. A leading exponent of the school explained its object as follows: What we are striving is that the court may find the right judgment on the merits by practical sense and true comprehension of facts, instead of correct legal deduction by the help of scholastic subtleties. The view has not gained popular acceptance as it has been described as “so dangerously wide as to deprive the law its logical core of rules”. Scrutter L.J in Hill v Aldershot Corp put the matter as follows: Liberty to decide each case as you think right without any regard to principles laid down in previous similar cases would only result in completely uncertain law in which no citizen would know his rights and liabilities until he knew before what judge his case would come and could guess what view that judge would take on a consideration of the matter without any regard to previous decisions.

In crypto-Sociological method, the judgment is expressed in a perfect chain of logical reasoning, concealing the true reason for the decision. The case is decided on merits, and the court searches for legal authorities to justify the result.18 Gery,19 propounded the scientific research theory. It is only applied in cases of primae impressions and where no assistance can be found in the sources. It encourages the judge to study the moral conscience and other factors to enable him understand the real nature of the problem.20 Having briefly discussed the main principles that govern the process of adjudication, it is pertinent at this junction to examine some other variables which influence judicial decisions.

Thus, for any judicial arm of government to meaningfully carry out its assigned responsibilities (i.e. administration of justice) based on rule of law, it has to operate independently without any influence, control or interference from any institution or other arms of government, without this; the system will be more or less dictatorship. Montesquieu quoted in George, (2005: 1347) noted that 'there is no liberty, if the power of judging be not separated from the legislative and executive powers'. 1 Moreover, an independent judiciary as the American Bar Association’s Commission on Separation of Powers and Judicial Independence rightly noted would enable the judiciary to render impartial decisions in individual cases and check over-concentrations of power in the political branches.2 Furthermore, Burkaa, (2012) noted that an organized and independent judiciary lies on the following: a. Appointment of qualified and experienced operators of law (i.e. judges), b. Its ability to detect and prevent excessive use of power by other organs of government, c. Ability to protect and defend the constitution and as well as the fundamental rights of every citizens, d. Appointment, removal and remuneration of judges should be completely free and above all, e. Ability to ensure less expensive and fair justice system for the ordinary citizens, since it is the last hope of a common man. Nevertheless, a complete decisional independence of the judiciary that gives free hands to the courts to decide on all cases should be put to check through judicial accountability. The court should be accountable to the general public and other arms of government; this will ensure a complete operation of rule of law (Burbank et al., 2002). However, the role of the judiciary in combating corruption cannot be overemphasized. The judicial ability to investigate and prosecute largely depends on the legal and institutional frameworks put in place to work alongside the judicial arm of government.

Problem of Judicial Administration in Nigeria

A primary indicator that corruption is spiraling out of control is a dysfunctional judicial system. Hence, the need for the Rule of Law is absolute (Sylvester S. 2018). The weaknesses identified with the judicial set-up that can hamper its independence and ability to perform its functions impartially are the methods delay justice proceeding, executive lawlessness, corruption

Administration of justice proceeding

A popular saying goes thus; ‘justice delayed is justice denied.’ The real question actually is, is justice really delayed?

The main issues about the administration of justice are allegation of perversion of justice, excessive delay in its administration, the high cost of justice and the dominance of corruption in the judiciary and other agencies concerned with the administration of justice.

Allegation of perversion of justice and corruption in the judiciary is widespread. Bound to this fact, many people are doubtful about the justice system. For this reason, many judges are castigated and rebuked for giving judgments even when right ones are pronounced. This definitely is an issue and challenge of judicial independence as judges are skeptical about giving judgments for fear of being rebuked.

In an ideal state, where provisions of the law are clearly stipulated in simple language, the independence of judiciary is upheld as even a layman will understand such judgments that are pronounced.

Executive Lawlessness

Executive lawlessness can be described as the inability of the Executive arm of government to cooperate with judicial orders. This is one of the major challenges that pose a threat to Judicial Independence in Nigeria. This can take a variety of forms ranging from disrespect of court orders and non compliance with due process. However, it should be noted that no person should flout a positive order of a court while seeking an appeal at a higher court. The essence of the rule of law is that it should never operate under the rule of fear. To use force to affect an act and while under the marshal of that force, seek the court’s equity is an attempt to infuse timidity into court and operate a sabotage of the cherished rule of law. It must never be.,It is however safe to posit that for judicial independence to be fully ensured, Executive lawlessness must be curbed and abolished. An independent, impartial and informed judiciary holds a central place in the apprehension of a good, transparent and accountable government. This is necessarily made possible by the provision that charges the judiciary with the function and responsibility to determine all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating to the determination to any question as to the civil rights and obligations of any person [Ibid].

The Judiciary and Corruption

judicial corruption may be defined as acts or omissions that constitute the use of public office for the private benefit of judges, court personnel, and other justice sector personnel that result in the improper and unfair delivery of judicial decisions. Such acts or omissions include bribery, theft of public funds, extortion, intimidation, influence pedaling, the abuse of court procedures for personal gain, and any inappropriate influence on the impartiality of the judicial process by an actor within the court system (Igbanugo, 2013). Judicial corruption covers any indecent act or omission perpetrated by any court official or personnel with the intent to maneuver the court procedure to cause impartiality in the judicial process for personal financial or material gain and non-material gain. Reports from Human Rights Watch, Transparency International and Anti-Corruption agencies in Nigeria have clearly revealed that the judiciary in Nigeria is a highly corrupt institution. All sort of corrupt practices such as misplacement of case files, bribery, extortion, financial compensation are common not only among the judges but also the entire judicial system including the administrative offices. Gafar and Odukoya, (2014) reported that the bulk of judicial corruption lies in the court clerks, registrar and prosecutors working with judges. The clerks for instance, have the responsibility of keeping judicial activities such as registering case files and preparing cases. In many situations court clerks are bribed to delay case registration, make sure that a particular case is allocated to a particular judge of interest, delay proceedings, alter, destroy or even remove document from the file or obtain a copy of document without any approval from the appropriate office and sell it to the other party. Reports also revealed that getting common documents such as certificate of citizenship or nationality, affidavits for loss of one’s property from the courthouse requires certain amount of unofficial charges to be paid to the person in charge without any evidence of payment or receipt. Anyone not willing to pay is not in need of such document.

All these corrupt acts are not easy to detect and have great impact in the dispensation of justice. Bond, (2008) in his argument also noted that when talking about corruption in the judiciary, professionals or experts should not be excluded from the picture. Experts according to Danilet, (2009) are persons who have professional knowledge in a particular area, superior to that of the court, and help the court clarify a case(s). He further explained how experts’ knowledge can assist and influence the court decision. In a case regarding financial crimes or value-added tax money for instance, the court will need an expert in this specialization to clarify the actual amount involved in the case and likely amount to be repaid. Reports submitted by expert on a particular case may constitute evidence and serve as guide for the judge. Corrupt Experts in some cases are influenced by taking bribe to falsify report in favour of the briber.

Danilet, (2009:24) identified the following as the forms of corruption common in the judiciary and other public offices: a.

• Bribe giving and taking: this involves giving or taking money for the legal or illegal completion of an action which is part of one’s job description.
• Trading in influence: this relates to benefits offered to an individual who promises to persuade a public agent or official to carry out (or fail to carry out) an action that is part of his job description.
• Gift receiving: this takes the form of receiving benefits while exercising one’s duty, not necessarily intended to distort the handling of that proceeding, but which may facilitate the establishment of unethical relations
• Greasing: involves benefits offered to official agents in exchange for speeding up the progress of a legal procedure or in order to prevent the opposing party from intervening first. e. Fraud: this relates to falsifying data, in the form of logical fraud, forgery, aiding and abetting.
• Blackmailing: comprises obtaining benefits by means of pressure, force or threat of a particular outcome if one fails to carry out a particular activity or try to reveal a secret.
• Preferential treatment: consists of giving assistance to one’s friends, associates, relatives etc. This may occur with the transfer of judges to other courts, promotion of High Court judges, or appointment and/or promotion to senior court clerks in courts;
• Nepotism: is a form of preferential treatment that consists in facilitating the employment in the system of one’s spouse or relatives; - embezzlement: refers to the misappropriation of public funds;
• Kickbacks: this takes the form of reciprocating an action. It occurs when an individual provides an illegal favour to another and the latter does the same in return.

PROSPECT

Nigerian judges need to eschew strict constructionist approach of law, an ideology that does not advance social justice and national development. Majority of the judges still cling to this archaic ideology; yet they claim to subscribe to liberal approach. A few of the judges have recognized the correlation between liberal approach to legal interpretation, social justice and national development. The words of Pats-Acholonu, J.S.C in NdoamEgba v Chukwuogor are apposite. I make bold to state that strict adherence by the law courts to the Austinian theory of legal positivism was what brought about 2nd World War where the villainous and delvish dictator succeeded in emasculating the courts and the people by spewing out laws that had horrendous effect not only on Germans but more particularly on the Jews.63 The Nigerian judges must give „serious thought to the question of justice as part of the definition of law‟64. They must be reminded that unjust law is a perversion of justice65. They must strive to emulate Lord Denning who approached law mainly from the perspective of the rightthinking members of the society.

Ayoola J.C.A. stated the approach clearly in Agbakoba v The Director DSS66 The error…is probably in not realizing that the constitution cannot condescend to details in its description of the fundamental rights and freedoms it guarantees. The constitution is an organic document which must be treated as speaking from time to time. It can therefore, only describe the fundamental rights provisions with contents such as would fulfill their purpose and infuse them with life. A narrow and literal construction of the human rights provisions in our constitution can only make the constitution arid in the sphere of human rights.

Anyone brought before a judge for litigation expects a fair outcome. For this to happen, the apparatus of law should be strictly governed by the rule of law that ensures and guarantees judicial independence. An independent judiciary is fundamental for the adequate protection of constitution and human rights and as well ensures impartiality and transparency in the administration of justice. Hence, fighting corruption in the justice system should not be handled with levity; this is because the effects of judicial corruption are many and far reaching for the principle of rule of law such as equality, impartiality, integrity, transparency and prosperity.

2.2 THEORITICAL FRAAMEWORK

Marxist Theory

Marxist theory has a profound impact on sociological thinking about power and social organization as human being relate in the society. The exponent of the theory is Karl Marx (1818-1883) in his views he maintains that, the central aspects of human behaviour involved the need to produce goods and services in order to survive. The ultimate aim of Marxist theory is that a classless society, i.e., a society in which all enjoy more or less equal wealth and power. Marx said history is basically about the struggle between classes for dominance. "The history of all hitherto existing society is the history of class struggles". Marxist observed that resources are scarce and divisible particularly privilege, prestige and power positions where people find themselves in conflict as they pursue their goals. If no bonds other than the pursuit of immediate self-interest were to unite people, society would quickly degenerate in a Hobbesian nightmare in which “war against all” prevails. Some agency like police, judiciary and prisons are required sufficiently strong to contain conflict within tolerable limits and the agencies are the state to control it people (Goode, 1972). Marx maintained that the motor of historical change is the process of production. The social relations of production involve different classes. The basicdeterminant of one's class is one's relationship to the means of production. For example in capitalist society the two basic classes remaining are the owners of the means of production, i.e., capitalists, and those who own only their labour, i.e., the workers or proletariat. So in any historical period dominant and subservient classes can be identified (Hughes and Kroehler, 2008).

Marx further posits that new institution, of the state like judiciary with its powers is required by the capitalist to enforce the unequal distribution of social and material rewards in order to preserve their position to oppressed less privileged class in the society. Marxist maintained further stated that the powerful elites do reach out itself and strategies on how to dominate the less privilege group in the society. The theory is of the opinion that the judiciary is the executive of modern state a committee for managing the common affairs of the whole bourgeoisie. Seen in this manner, the judiciary is an instrument that is manipulated virtually at will, by the capitalist class (Beirne 1979). Marxist theorists contend that the judiciary apparatus exercises “relative autonomy” in its relationship with the capitalist class. They say that the judiciary is not simply the instrument of the capitalist class, but is an instrument with its own interests and capacities that affect the entire society (Scolpol, 1980; Quadagno, 1984). The judiciary’s actions therefore, are not always in the interests of any particular class or of the society at large (Barkey and Parikh 1991). According to this view, relentless class conflict between capitalists and workers, boom and bust economic cycles, and inter corporate conflict place limits on the ability of the capitalist class to manipulate political institutions at will. Although the judiciary may promote a climate favourable to capitalism, it must also legitimate the sanctity of the social order and maintain internal peace through few judgments (O’Connor, 1973). Whitt (1979 and 1982) holds that political processes must be understood in terms of the ways in which the major social institutions are organized. Rather than focusing primarily upon the individuals who control the seats of power elites. Whitt looked to the biases inherent in social institutions like police, judiciary and prisons as shaping political outcomes. He portrayed society as structured in ways that place constraints on decision markers and render their formulation of policy largely a foregone conclusion. Given the capitalist logic of institutions in Nigeria, the ruling class usually need not take direct action to fashion outcomes favourable to its interests.

The inequality in wealth and power is fundamental moral concern to Marx. Some groups come to dominate others and to win for themselves a disproportionate share of the society such as wealth, power and privileges. The political outcomes are built within the capitalist ordering of affairs by the way agendas are set and alternatives are defined. One does not need to be a lawyer to know that Nigerian laws and their judicial interpretation unabashedly favour the rich and powerful (Anele, 2013). These attributes are the rule of law, equality before the law, majority rule, justice and equity, minority right, free press, fundamental human rights, independent judiciary, access to economic and social opportunities, accountability and transparency are fallacy. Hence, the most privilege group and their cohorts are right the government has done well because rich people are actually benefiting from our democracy of the rich, by the rich, and for the rich. What the masses have to do is thus to support them for their misdeals in the society. Based on the foregoing discussion the Marxist theory is adopted as theoretical guide for the study of Judiciary and Democracy in Contemporary Nigerian Society

2.3 EMPIRICAL STUDIES

Habeeb & Hossein (2017) conducted a study on Corruption in the Nigerian judicial system: an overview. The opined that the fundamental role of the judiciary is to uphold the constitution and protect the rights of every single individual of a nation by integrating, constructing and applying laws in resolving disputes and checkmate any transgresses. Judiciary is often referred to as the last hope of a common man because it guarantees equal access to justice. However, these roles have been a subject of debate and questioning.Ameh S.A 2012 maintains that independence of the judiciary is an arm of Government in which the courts in modern era should have freedom to adjudicate without any person interfering. He excludes financial independence because the judiciary relies on fund appropriated annually by the legislature.

Yakubu J.A (2003) maintains that a country is governed through law hence each government should respect rights of every individual through the rule of law. Besides, effective instruments should be provided to enforce the law. He adds that judges need proper guidance of the rule of law which they are to use to insulate and enforce fearlessly and without any encroachment by party politics or any government that intervenes. The contrary, according to him must be resisted. Lawyers globally protect the independence attached to their profession and uphold protection of rights of the people embedded in the rule of law while ensuring that application of fair hearing is sacrosanct because every individual is entitled to it. With reference to declaration of Delhi of January 1959 which affirmed Act of Athens, the author adds educational and cultural framework to civil and political right.

Akintola (2010) maintains that separation of powers is an attribute of the rule of law. When adjudicating, law should be separated from government, politics and religion. This will give room for the purpose of law to be achieved as regulator of powers of the government.