–Hameed Ajibola Jimoh Esq.
The Nigerian Judiciary has been established by virtue of section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- just as the other two arms of the government have been established pursuant to sections: 4 and 5 of the Constitution. I have observed that of all these three arms of government- the Executive, the Legislature and the Judiciary, only the Judiciary is more of a professional arm of government which makes it permanent than the other two arms.
The Judiciary is also an appointment based arm of government rather than elective office. The other two arms being elective are temporary and just for a maximum of two terms (each term being only for a four year period). Elected candidates to the other two arms are elected for such particular term and they vacate the office when the term expires. However, the judiciary is a different arm in that it continues till retirement or resignation or death of the judicial officer. This paper is a thought on the permanent nature of the judiciary as an arm of government.
First and foremost, in my humble view, the Nigerian judiciary is one of the arms of government (as in my humble view, it is legally wrong and underestimating (or derogatory) to regard or refer to the judiciary as the third arm of government as some persons misconceive it to be because neither the Constitution nor any law having effect in Nigeria has categorized the judiciary as such and therefore, the Judiciary is not different from the status and or rank as given to it by the Constitution i.e. just an arm of the government and that is all!).
Furthermore, the creation of all courts in Nigeria is made pursuant to section 6 of the Constitution with courts being categorized as Federal Courts and States Courts. Section 6(1), (2) and (3) of the Constitution is clear on this position where it provides thus
‘6.—(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) to (i) of this section shall be the only superior courts of record in Nigeria; and save 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 of record.’.
From the above provision of the Constitution, the courts therein listed under section 6(5) of the Constitution are specifically categorized under different headings in Chapter VII Judicature (under the Constitution).
Also, it is no doubt that ‘separation of powers’ is a characteristic of ‘democracy’. While separation of powers is defined as ‘the division of government powers into three branches of legislature, executive and judicial powers, each to be exercised by a separate and independent arm of government as a preventive measure against abuse of power, which will occur if the three powers are exercised by the same person or group of people’. See: Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page: 65. The word ‘Democracy’ (on the other hand) according to President Abraham Lincoln, the then President of the United States of America, is ‘a government of the people, by the people and for the people’. In other words, ‘Democracy’ is: (i) a government made up of the generality or representatives of the people; (ii) a government formed and installed by the people; and (iii) a government that exists for the welfare of the people’.
See: Ese Malemi, (op. cit.) at page: 30. There is no doubt that in Nigeria, as of the moment, the types of democracy practiced is ‘the Indirect/Representative Democracy,’ which is a system of democracy where all persons of voting age are expected to vote to form the government by electing persons into government who will represent and act on their behalf, especially in the executive and legislative arms of government, which elected persons are expected to properly constitute all the other organs and agencies of government, and generally manage the affairs of government for the welfare of the people’. See: Ese Malemi (op. cit.) at page 31. As has been said above, government is then a joint functions of: (i) the Executive; (ii) Legislature; (iii) and the Judiciary. In Nigeria, the judiciary has been saddled with, among other roles, the role of adjudicating on disputes between and or among disputing parties and to interpret the law.
Every citizen of Nigeria also enjoys equal right of accessing the court of law for necessary remedy (ies).
In my view, I view that the derogatory word used for the judiciary as the third arm of government might have been because of all the three arms of government, only the judicial offices are not elected offices or politically interested.
It could also be as a result of the numbering of the various sections of the three arms in the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- wherein the ‘Legislative powers’ are contained in section 4 of the Constitution; the ‘Executive powers’ are contained in section 5 of the Constitution while the ‘Judicial powers’ are contained in section 6 of the Constitution (the third powers and third arm of government as has wrongly been held).
With due respect, I am of the firm view that all these arrangements should not be taken beyond reasoning to assume that the judiciary ( as the last hope of the common man) is inferior and subservient to the other politically elected offices or arms of government. The arrangement should also not be taken to assume that the other two arms have the powers to control or intimidate or oppress or disobey the judiciary as they like and whenever they prefer and having regard to their temporary nature while the judiciary is permanent! Each of the three arms is independent of the other subject to checks and balances.
Furthermore, in my humble view, the permanent nature of the judiciary would require that the judiciary should be protected by the other two arms of government. Also, the emoluments of the judiciary should be upgraded and or improved upon having regards to the sacrifices of that office in both private, academic and professional lives of the judicial officers.
Furthermore, I must restate that obedience to court’s orders is necessary for law and order to reign in Nigeria, especially by the other two arms of government as an example of good ambassador for the members of the public.
This is a common attribute of democracy. The judiciary must not be treated with disdain or inferiority. This is important because there are consequences where the judiciary is not respected by obeying its orders made whether it is considered perverse, good or bad or unsatisfactory. In the case of Ezekiel-Hart v Ezekiel-Hart (1990) 1 NWLR (pt. 126), page 276 SC., Wali JSC cited with approval the dictum of O’Leary, in Canadian Metal Co Ltd v Canadian Broadcasting Corp (No. 2) (1980) AC 952 HL, where His Lordship said that: ‘ To allow court orders to be disobeyed would be to tread the road towards anarchy. If orders of court can be treated with disrespect, the whole administration of justice is brought to scorn … if the remedies that the courts grant to correct … wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result in the destruction of our society’.
Therefore, the issue of judicial sovereignty posits that the judicial orders must be respected and obeyed. The judiciary being an independent arm of government is to discharge judicial functions to all persons and authorities, without fears or favour.
Finally, I humbly submit that despite the permanent nature of the judiciary, no one arm of government is supreme to the other and that each of all the three arms gains sovereignty on its own subject to checks and balances. Therefore, every other arm of government and private persons are bound to always obey the judicial orders made whether such judicial orders are good or bad or unsatisfactory until same are set aside by a higher court of law!
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