ANATOMIZING THE POWERS OF THE JUDICIARY UNDER THE 1999 CONSTITUTION
The legal basis for the exercise of the judicial powers in Nigeria finds its original source under the constitution of the federal republic of Nigeria 1999. Section 6 creates superior court of records and empowers them to exercise judicial authority. The judicial is the third arm of government entrusted with the power to interpret laws made by the legislature.
In the 1999 constitution, the types, organization, jurisdiction, functions and powers of the judicature are highlighted in section 6 and covered in details under chapter viii. The organization of the court is hierarchical or pyramidal. Section 6 (2) of the 1999 constitution vest the judicial powers in the court. This section provides that “the judicial power of a state shall be vested on the court to which this section relates, being courts established, subject as provided by this constitution for a state’’
Idigbe JSC in Brovic Motors Limited. And Anor. V. Wema Bank LTD defined, judicial power to mean “the power to construct and apply the law.’’ It is important to note the distinction between judicial functions and judicial powers. While the former encompasses the role of the judiciary in resolving conflicts through resort to established rules, which can be exercised by non-judicial or quasi-judicial institutions, the latter is restricted to recognized judicial institutions, and is usually much wider than the general functions. The judiciary as an independent organ of modern government is vested with the role of interpreting the law through the various courts established and doing substantial justice without fear or favour to all and exercising the judicial power vested in it
Hierarchy of courts is often a creation of statutes which also to each hierarchy, commensurate power and jurisdiction. Nigerian courts are basically of two categories, namely: the superior courts of record made up of the Supreme Court, the Court of Appeal, the Federal High Court of the state, The Federal High Court of the FCT, the High Court the state, Sharia Court of Appeal of the state, Customary Court of Appeal of the state; and other courts lower in hierarchy which are not courts of record such as magistrate court, District Courts, Area Courts, Sharia court, Juvenile Court and Court Martial or Military Court etc.
It is important to note that the lower court which are not courts of records falls under the courts that is established through the instrumentality of the provision of Section 6(5)j of the constitution which state as follows: “such other courts as may be authorized by law to exercise jurisdiction on matters with respect to which the national Assembly may make law’’ and also the provision of section 6(5)k of the constitution which in turn provides thus: “such other courts as may be authorize by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws”
The power of the Judiciary in Nigeria of the Judiciary is contained in section 6(6) a, b, c and d of the1999 constitution of the Federal Republic of Nigeria. Section 6(6)a, b, c and d provides accordingly as follows:
The Judiciary powers vested in accordance with the foregoing provision
(a) Shall extend, not withstanding anything to the contrary in this constitution, to all inherent powers and sections of a court of law
(b) Shall extend to all matters between government or authority and to any person in Nigeria, and to all action and proceedings relating thereto, for the determination of any question as to civil right and obligation of that person.
(c) Shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of 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 II of this Constitution;
(d) 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 law.
However, the power of the Judiciary as regards section 6(6) c is limited. This section has to do with the enforcement of the provisions of Fundamental Objectives and Directives principles of State Policy provided for in chapter II of the 1999 constitution. Section 6(6) c. Provides clearly that: “the Judicial powers vested in accordance with the forgoing provisions of this section shall not except as otherwise provided by the constitution, extend to any issue or question 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 II of this constitution.”
In essence, the provisions of this section is non justiciable to the extent of the constitution per se making room for it justiciability. This goes further to highlight that the judiciary has no power to act or enforce or attain to matters that falls under chapter II of the constitution, except the constitution permits them to do so. That is to say that the jurisdiction of the judiciary is ousted as far as Chapter II is concern by virtue section 6(6)c of the same 1999 constitution. The non justiciability of Chapter II of the constitution has been judicially confirmed in several legal holdings and judgements. One of such case is the case of Archbishop Okogie V. AG. Lagos state where the courts held that:
while the constitution makes it a duty and responsibility of the judiciary among other organs of government to conform to and apply the provisions of chapter II, section 6(6) c of the same constitution make it clear that no court has jurisdiction to pronounce any decision as to whether the any organ of government has acted or is acting in conformity with the fundamental objectives and Directive principles of state policy.
However, the constitution has not made the non justiciability of the provisions of chapter II of the constitution sacrosanct. The wordings ‘except otherwise provided by the constitution,’ has created a leeway through which judicial powers can extend to the enforcement of chapter II.
In giving precision to how the judicial power of the judiciary extends to the enforcement of the provisions in chapter II which is undoubtedly made non-justiciable in section 6(6)c of the 1999 constitution, Niki Tobi JSC in the case of Federal Republic of Nigeria v. Aneche and 3 ors. Observed as follows:
In my view, section 6(6) c of the constitution is neither total nor sacrosanct as the subsection provides a leeway by the use of the words “except as otherwise provided by the constitution.” This means that if the constitution otherwise provides in another section, which makes a section or sections of chapter II justifiable, it will be interpreted by the court.
There are two ways by which the provisions of chapter II can be made justiciable in the light of the light of the exceptions contained in section 6(6) c.
First, when the constitution in it justiciable section directed that a particular section of Chapter II of the constitution shall be complied with in carrying out the provision of the section of the constitution. For instance, Section 147(3) of the 1999 of the constitution provides that any appointment under subsection 2 of this section by the president shall be conformity with the provision of section 14(3) of this constitution “in appointing the chairman and member of board of governing bodies of statutory corporation and government in which the government of the state has controlling shares or interest and council of universities, colleges and other institutions of higher learning, the governor shall conform with the provision of section 14(4) of the 1999 constitution.” Also while implementing the provisions of section 197(3) of the Constitution; compliance with section 14(4) of this constitution becomes mandatory, thus justiciable.
Second, where the constitution in it justiciable section empowers the National Assembly to implement the provision of Chapter II of the constitution via legislation. For example, Item 60 of the Exclusive legislative list under Part 1 of the Second Schedule to the 1999 constitution empowers the National Assembly to make law with respect to the “establishment and regulation of authorities for the federation or any part thereof…to promote and enforce the observance of the Fundamental and Directive Principle contained in the constitution’’
Commenting on the above, Justice Mohammed I. Uwais CJN (as he then was) observed that “the breathtaking possibilities created by this provision have sadly obscured and negated by non observance.’’ It was in this light that the supreme court held in Attorney General of Ondo State v. Attorney General of the Federation that the court cannot enforce any provision of chapter II of the constitution until the National Assembly has enacted specific act as it is done with respect to section 15(5) of the 1999 constitution of the Federal Republic of Nigeria. It is through the above process that the power of the judiciary will extend to cover the enforcement of the provision of chapter II as provided in section 6(6) of the constitution.
Furthermore, it is important to glaringly point out that the constitution openly denies the judiciary power in issues of cover under section 6(6)d of the constitution. This section provides:
The judicial power vested in accordance with the foregoing provision of this section shall not, as from the date when this section come into force extend to any action or proceedings relating to any existing law on or after 15th January 1966 for determining any issue or question as to competence of any authority or person to make such law.
This section in effect states that the judicial power of the judiciary shall not extend to actions or proceedings that tends to question the competence of the person or authorities that actually made or involved in the making of the enactments or promulgations that were in force in Nigeria on or before the 15th day of January, 1966. However, it is important to note that the powers of the judiciary in this section is only limited when it has to do with laws that where in existence in Nigeria from 15th January, 1966 till 1999 when the 1999 Constitution and section 6(6)d came into force. Therefore, the judiciary will have the power to question or investigate into the competence of the persons or authorities who made or makes other laws in Nigeria from the date section 6(6)d of the 1999 constitution became operative.
However, Section 6(6) d has attracted the critical scrutiny of judicial warlords. In the case of Prince Mustapha v. Governor of Lagos State Oputa JSC Echoed the view of Irikife JSC as h(as he then was) in Uwaifo v. AG Bendel State in his search for wisdom behind section 6(6) d of the 1979 Constitution which is pari material with the same provision in the 1999 constitution, stated that the military regime at the end of their rul sought to hand down a Constitution in which they made certain that future administration would not be given free hand to dig up skeleton of any legislation which they were involved for scrutiny.
Oputa JSC further stressed that it is worrisome to say at least that the judicial power which is by tradition vested on the judiciary can be displaced for such selfish proclivity of the military regime. His lordship concluded that there is no justifiability for the aberration section 6(6) d hold out. That it is most appropriate to allow the court to enjoy to interpret and pronounce on validity of laws.
Obiozor contended that it is unfortunate that the invidious contrivance in Section 6(6) d is repeated in the 1999 Constitution according to this scholar, it constitutes a calculated mischief aimed as emasculating the judiciary in the exercise of its interpretative authority under a constitutional democracy such as ours in which the rule of law is supreme.
However, the judiciary can exercise its power in relation to laws that were in force in Nigeria after 15th January 1966 to May 1999 where the provision of such law is seen to cause some manifest hardship on the citizen who upon encountering such hardship, challenges the provision of that law. The judiciary can call for repeal. In a nutshell, the judiciary cannot attain to issues that question the competence of the makers of those enactments that were in force in Nigeria after January 15th 1966 to May 1999, but it has thee jurisdiction to attain matters that flow from the provision of any of such enactments.
The above represent a thorough analysis of the powers of judiciary in Nigeria as documented in the 1999 constitution of the Federal Republic of Nigeria
Written and edited