Critical Appraisal On The Procedure For The Appointment Of Judicial Officers

Introduction

1.0. Background to the Study

The theme of this work is apt in the light of the current national discourse, bothering on the judiciary and justice delivery. One of such discourse is the unresolved appointment of the chief Judge of Rivers State[1]caused by the row between the Rivers State Government and the National Judicial Council. To every human being, all over the world; justice is the oxygen of a good life. Socio-political and economic existence depend on proper delivery of this invaluable commodity.1

The evolvement of the judiciary can be traced to the principle of separation of powers. John Locke and Baron de Montesquieu dominated the early formulation of the doctrine of separation of powers[2]. In fashioning this political formulation, the renowned jurist, Locke having observed the prevailing political conditions in England in the 17th century, concluded that arbitrariness in governance was a product of concentration of all governmental powers in one authority. The diffusion of authority among different centers of decision making is the “thesis to totalitarism or absolution”.[3] The doctrine clearly provides for the three arms of government; the executive, the legislature and the judiciary and their independence.

The Nigerian Judiciary has in recent times come up against a bulwark of onslaught against its integrity and an erosion of its public image ranging from accusations of financial material compromise, manipulations from the political elitist class and weak agencies. Against the backdrop of recent public perceptions on the judiciary, the following are the key areas upon which this essay shall be built: separation of powers, the general process appoints of the Nigerian bench; tenure of judges and independence of the judiciary as well as the nature of judicial power.

1.1 Separation of Powers

The doctrine of separation of powers, developed in the 17th century in an effort to ensure division of state authority into legislative, executive and judicial function and the performance of such functions by separate branches of government. Among the components of separation of powers are the triaspolitica doctrine and the establishment of checks and balances on the actions of the various branches of government. Motesquieu argues that the reason for the separation of powers is that there can be political freedom in a country where one and the same person or body of persons makes the laws, implements them, and acts as arbiter when they are contravened.[4] In his words he posits: [5]

Political liberty is to be found only when there is no abuse of power. Experience shows that every man invested with power will abuse it by carrying as far as it will go. To prevent this abuse, it is necessary from the nature of things that one power should be a check on another… When the legislature, Executive and Judicial power are united in the same person or body…, there can be no liberty…Again there is no liberty if the judicial power is not separated from the legislative and executive… There would be an end of everything if the same person or body, whether of the nobles or of the people, were to exercise all three powers.

Separation of powers means that different persons or different bodies of persons should exercise the powers of the three arms of government i.e., the legislature, executive and judicial arms. Our own form of separation of powers is fashioned after the American system. The idea of this system is the provision of effective checks and balances in the government structure itself. Under the principles of separation of powers enshrined in our constitution, the three organs of government are independent, equal and co-ordinate. No organ is controlled by the other, although each acts as a check on the other. By virtue of sections 4, 5 and 6, the powers of the federal Republic of Nigeriaare shared among the Legislature, Executive and Judiciary respectively[6].

Separation of powers as enshrined in our constitution has been applied by the courts in the celebrated case of Lakanmi& Anor. V A.G Western State[7] the Supreme Court observed:

We must here revert again to the separation of powers, which the learned Attorney-General himself did not dispute, is still the structure of our system of government. In this absence of anything to the contrary it has to be admitted that the structure of our Constitution is based on the separation of powers –the Legislature, the Executive and the judiciary. Our Constitution clearly follows the model of the American Constitution. In the distribution of powers, the courts are vested with the exclusive rights to determine justiciable controversies between citizens and the state.

The Court of Appeal formulated some fundamental principles to explain why separation of powers is desirable, in these words.

The doctrine of separation of powers as enshrined in the constitution ensures the independence of each of the arms of government, that is, the legislature, the executive and the judiciary. Each acts separately but within the confines of the Constitution”[8]

Since the government of Nigeria, pursuant to the 1999 Constitution, which is founded on the principle of separation of powers, the executive cannot usurp the legislative powers of the legislature, nor can the judiciary do so. In Ikhariale v Okoh[9] the need for the court not to engage in legislative function was stated. It was held that the court at what ever level in the judicial hierarchy is not authorized, and is ill-equipped to embark on the execution of a duty constitutionally and exclusively reserved for the legislature. It cannot do so in a pretended interpretation of words which are clear and unambiguous in their natural, grammatical and literal meaning, with reference to the context in which law makers use them.

Accordingly neither the executive nor the legislature is expected to usurp the judicial functions/powers. The court of appeal per Agho J.C.A states this position thus:

The constitution is clear as to who should perform judicial acts. And since it is the exclusive function of the judiciary to exercise judicial function, any member of the executive who interferes with those functions must be prepared to face the consequence of such interloping conduct by way of an action by a person aggrieved.[10]

The judiciary should not also usurp the powers of the executive arm. In Ohaji v Unamka[11] it was held that where there is a statutory provision for making an order or a declaration and making same is reposed in a named office, whether minister or a commissioner, or indeed whether the President of the Republic or Governor of a State, such function cannot be usurped by the court. The furthest a court can go is to declare as to the validity or otherwise of an order or declaration of a public officer, but the court has not got the jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.

However a court will strike down a law or act of the legislative or executive respectively, where the legislative or the executive in the exercise of their legislative or executive duties, breaches any constitutional provision in respect of a particular matter they are dealing with[12]. This is called judicial intervention which is used to prevent breach of the constitution. Yakubu J.C.A posits:

It is because of the non-compliance with the provision of section 100(5) of the 1999 constitution by the appellants as contended vide the 1st-22nd respondent’s notice, in enacting the Law no. 6 of 2008, that the said law can be faulted.[13]

There is an extent to which separation of powers is desirable. Although powers may be separated, the interest or order and progress demands that such powers be at the same time co-ordinate. It is only essential that one organ of government does not have a controlling influence over another. As it has been said, the theory of predominance is the controlling factor. As long as one organ of government does not and cannot dominate the proceedings of another organ of government, there is separation of powers.[14]

The constitution and indeed the other Republican Constitutions of 1963 and 1979 of the Federal Republic of Nigeria adopts in principle the concept of separation of governmental powers and the exercise of these powers by three organs, namely; the Legislature, the executive and the Judicature.[15] As earlier stated chapter 1, part II, of the constitution deals with this separation of powers.
I shall now consider the workings of the doctrine in our legal system.

1.1.1 Checks and Balances

The role played by the system of checks and balances is a very important one in a democratic state as it guarantees that no single branch of government can become too powerful and end up usurping the functions or powers of the other branches. Moreover, no single branch of government can function in complete independence between the three branches. In other words, an “absolute” theory of separation of powers in which one branch functions in complete isolation is not viable.[16] The most interesting aspect of this system is that the powers of one branch can be challenged by another branch and this is what the system of checks and balances is all about, i.e., one branch serves as a watch dog or safeguard against any form of irregularity by the other branch (es).[17]

The legislature checks over the judicial arm as for example, it has power to ratify the appointment of some members of the judiciary. It also checks on the executive in various ways. For instance, it may override the executive vetoes on bills passed and may remove members of the executive arm through impeachment.[18]

The executive exercise checks on the legislature in a number of ways. It also has the ability to check the judiciary, the President or Governor as the head of the executive, as the case may be, is vested with powers to appoint judges in the courts.[19]

The courts may exercise checks and balances on the executive when it gives an order or judgment as to the constitutionality of executive actions. It also checks over the legislature with its power to determine the constitutionality of legislature acts.[20]

Politics in Nigeria has been largely characterized by lack of respect for rule of law. The actions or inactions of other arms of government are subject to judiciary review. The court is required to police the activities of there organ or arms if our constitutional democracy must be entrenched.

1.1.2 Judicial Review

Judicial review is the power of a court to examine the acts of the other organs of government, and uphold them or invalidate them as may be necessary.[21] The court exercises this power on the ground of unconstitutionality, illegality, irrationality or procedural impropriety and so forth.[22] A good example where the courts have review executive action is illustrated in the case of A.G. Lagos State v. A.G. Federation,[23] where it was alleged that the president withheld the statutory allocation that was due to Lagos State from the Federation Account. The Supreme Court in exercise of its powers of judicial review, declared the presidential act as unconstitutional, null and void.

The current situation in Nigeria shows that judicial review is most appropriately the bedrock of democracy and without it, not only the lives and liberty of the people would be in jeopardy, the right or competences of one arm may be put in jeopardy or rendered ineffectual by another arm of government.[24] A good example which illustrate where the court has reviewed legislative actions is gleaned from the politics of impeachment carried out by the legislature unconstitutionally.[25]

Nigeria’s constitutional democracy guarantees the place of the judicial arm among the three arms of government through a system of checks and balances that guarantees separation of powers among the three arm of government. This is to enhance democracy. However, judges should protect judicial power from political intrigues of the executive and legislative arm of government.[26]

1.2 Judicial Power

Judicial power is the power which the state exerts in the administration of sjustice, in contra-distinction from the power it possesses to make laws and the power of executing them.[27] The judicial powers of Nigeria are vested in Nigeria’s judicature comprising of tribunals or courts established under the nations constitution and other laws made pursuant to the constitution.[28]

Since the judicial power of the Nigerian State is vested in the courts. I will examine the historical antecedent of court in Nigeria before a full examination of the nature of judicial powers.

1.3 Historical Origins of the Judicial System in Nigeria

Before the coming of the Europeans, the various indigenes people of Nigeria had difficult method of dispute resolution mechanism. After 1842, the power to administer and dispense justice in Nigeria was mainly vested in native courts with the entrance of the colonialist pursuant to the Foreign Jurisdiction Act of 1843 and 1893, the British established courts among which the earliest were the courts of equity. The consular or other administrative officers acted as judges by the Royal Niger Company. The British courts and the native courts functioned but the native courts were not to administer native law and custom repugnant to natural justice, equity and good conscience.[29]

In 1863, by Ordinance No 11 of that year, the Supreme Court of Lagoswas established. And later in 1900, via the Supreme Court Proclamation Order No. 6 a Supreme court was established for the Southern Nigerian Protectorate.

The court exercised the same powers as were vested in Her Majesty’s High Court of Justice in England. The courts were to apply the common law, doctrines of equity and statutes of general application inEngland in so far as local circumstances permitted.[30]

After the amalgamation of 1914, provincial courts were abolished and in its place the High Courts was established, below it were the Magistrate court and Native court, which remained at the bottom of the judicial hierarchy. The Supreme Court exercised appellate jurisdiction over the High court…until 1954, appeals from the Supreme Court lay at the West African Court of Appeal, but later lay directly after that year to the Privy Council. In that same year a Federal Supreme Court was established presided over by a chief justice of the federation.

In 1975, in order to meet the need for cases involving the revenue of the federal Government, the Federal Revenue Court was established.[31]Presently under the 1999 constitution, the courts recognized as constituting the judiciary are the Supreme Court at the apex, followed by the Court of Appeal, the Federal High Court, the High court of the FCT Abuja, High Courts of the states, Customary Court of Appeal Abuja, court of Appeal of the States, The Sharia Court Of Appeal of the various Northern States The National Industrial Court of Nigeria[32] followed by the Court of Appeal in the Judicial hierarchy.

Against this historical background of the Nigerian judiciary, I now proceed to deal with the subject matter of judicial power. As highlighted above the judicial power of the federation pursuant to s.6 of the constitution is vested in the judicature exclusively.

It is imperative at this stage to know what is meant by judicial powers. In Nabarumal v Offordili the court of Appeal opined that “judicial power refers to the ability, the function of the court”.[33] Judicial power according to Edeko “means the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”[34]

In Bronik Motors v WemaBank[35] Idigbe J.S.C saw the need to differentiate between judicial power and jurisdiction of a court. He said:

“Although the terms judicial power and jurisdiction are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit there is a clear distinction between the two concepts,… judicial power which is the totality of powers a court exercise when it assumes jurisdiction and hear a case.” Judicial power, as is well known is … also co-existence with power of the state to administer public justice and make laws and execute them as well.

Nwabueze on his part observed that judicial power necessarily implies a power to give a binding decision or determination. He further posits that proceedings, whatever their nature, if they do not result in a determination or decision, the function is not judicial.[36]

Nwabueze forever argued that:

The definition of judicial power purely from the standpoint of courts strictusensu may be objectionable on the ground that it imposes a narrow conception which is out of harmony with the classification of functions for the purposes of administrative Law.[37]

The above notwithstanding a definition purely from the stand point of the courts is apt, because as this work is concerned with the role of the judicial arm in government. Secondly for the purpose of differentiating judicial powers from executive power and legislative power, only a strict definition of judicial power is apt.

The purpose of judicial power is to administer Justice in individual cases between litigants. Traditionally, judicial power must be exercised so as to do justice in individual cases. “The judge must not allow himself to be influenced by any other consideration at all”.[38] This view is too rigid, it fails to distinguish the various dimensions of public policy, and the proportions in which it may be combined with legal principles or objective standard in any given case. Public policy is not subjective, it is capable of objective ascertainment as the community’s collective sense of right and wrong. A just application of public policy in decisions of courts may eventually establish a body of principles to be used in the determination of future cases.[39]

On a final note, judicial powers are exclusive to the court. If a power is exclusively judicial, then without specific authority in the constitution, it cannot be conferred on any person or authority other than the court,[40] for otherwise will amount to a usurpation of judicial power which is unconstitutional and contrary to the doctrine of separation of powers.

However the constitution itself imposes a number of limitations on the judicial powers of the courts. Under s.6 (6) (L) (d) of the constitution, the judicial powers of the court shall not except as otherwise provided by the constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principle of state policy set out in chapter 2 of the constitution. What that means is that if the judiciary must exercise its powers on matters before it, it must be a matter that is justiciable.

One must note that separation of powers is not absolute, it does not mean that each arm of government must operate in a watertight compartment. Though the judicial arm ought to be manifestly detached from the other two arms, the legislature and the executive as a matter of necessity need to work in close and harmonious collaboration with each other in other to serve the interests and welfare of the citizenry.

If we must guard against ills like avaricious and ambitions self-serving behaviour and inefficient performances of functions as well as abuse of power, separation of powers doctrine is the answer. The doctrine will not only justify but will also ensure independence of the Judiciary. It provides a basis for the checks and balances which protects liberty now and in the future.[41] What is clear is that like the American model the doctrine of separation of powers as practiced in Nigeria is a modified form unlike the theory in its purest form.

In Nigeria though the judiciary is a separate arm of government, the appointment if its officers is done by the executive arm with legislative ratifying such appointment. Having this in mind set the tone for a discussion of the procedure for the appointment of judicial officers in the next chapter….