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6 Int'l Legal Prac. 62 (1981)
Judicial Independence in Nigeria

handle is hein.journals/ilp6 and id is 66 raw text is: International Legal Practitioner, 19B1, VoI. 6(i) Printed in Great Britain Judicial Independence in Nigeria NIKI TOBI, Dean, Faculty of Law, University of Maiduguri, Nigeria INTRODUCTION The British formally colonised Nigeria in 1861. This was followed by the introduction of English law and the English Legal System in the country. English Law and its Legal System was introduced into the country by means of local statutes. Thus by section 45 of the Law (Miscellaneous Provisions) Act,' the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, became applicable in Nigeria,2 in so far as the limits of local juris- diction and local circumstances permitted and subject to any federal law.3 The imperial laws were to be read with such formal verbal alterations not affecting the substance as to names, localities, courts, officers, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.4 In conformity with the above reception statute, the nomen- clature of the courts of the country were not the same as their British counterparts, although the traditions of the Judiciary remained formally the same. Thus in addition to the native courts,5 other courts of the British tradition were created. These included Magistrates courts, High Courts, the Supreme Court6 and the West African Court of Appeal. The West African Court of Appeal was the highest court in the terri- tory. Appeals however went to the Privy Council.8 This is not surprising because the appellate jurisdiction of the Privy Council in Nigeria as in other Commonwealth Colonial Coun- tries derived from the prerogative of the King, as the fountain of justice, to receive petitions from his subjects who had failed 'to get justice from the ordinary courts of law. 9 Nigeria became an independent country in October, 196010 and attained a republican status three years later.' The change from the 1960 Constitution to the 1963 Constitution was to move away from the independent but monarchical status to a republican status, Under the 1960 Constitution, the Governor-General acted for and on behalf of the British Queen, who, by virtue of her dominium, was the Sovereign Head of State of Nigeria.12 In 1963, the post of Governor-General was replaced by that of the President,13 who had neither legal nor political links with the British Queen in relation to the administration of the country. The legal implication of this was that by 1963, the legislative functions exercised by the British Queen terminated, and they were taken over by the Nigerian Parliament.'4 The highest court of the country was named the Supreme Court.1s Accordingly, there were no further appeals to the Judicial Committee of the Privy Council. The country had a Military Government between 1966 and 1979, a Government which introduced some changes in the structure of the court system in the country.16 But more importantly, the Government, by its many statutes, threatened the independence of the Judiciary to some extent, a situation which could not have been totally avoided in any military regime.17 In October, 1979, a new Constitution was enacted for the Country; a Constitution which ushered in the Presidential System. The Constitution of the Federal Republic of Nigeria, 1979, like its predecessor, provides for the separation of powers. Section 4 provides for the legislative powers of the Legislatures,18 while section 5 deals with the executive powers of the Government.19 The Judiciary, which is the focus of this paper, is provided for in section 6.20 Although there are few areas of overlapping of powers between the Legislature and the Executive,2 the Constitution maintains separation of powers between the Legislature and the Executive on the one hand,22 and the Judiciary on the other.23 THE COURT STRUCTURE Nigeria is a federation of nineteen States.24 In the true tradi- tion of a federal system, the country has two tiers of courts: Federal and State Courts. Section 6(5) of the Constitution provides for the establishment of six courts as superior courts of record. Three of the courts are federal courts,25 while the other three are state courts.26 The Constitution establishes at the federal level the Supreme Court,27 the Federal Court of Appeal28 and the Federal High Court.29 The Federal High Court was established to replace the Federal Revenue Court.30 The Courts established in the Constitution at the State level are the High Court,3' the Sharia Court of Appeal,32 and the Customary Court of Appeal.33 In addition to the above, other courts may be established to exercise jurisdiction on matters in respect of which the National Assembly or the State Assembly have powers to make laws.34 In conformity with the provisions of section 6(4) of the Constitution, the States establish Magistrates Courts, Area and Customary Courts. In other words, the Constitution does not establish the above category of courts. What is the rationale for not establishing Magistrates Courts in the Constitution? The bulk of litigation in the country is handled by Magistrates' courts. Although they are not superior courts of record, the rationale for their exclusion can hardly be seen. While the State Government can establish Magistrates' Courts by virtue of section 6(4) of the Constitution, the status so conferred on the courts is not commensurate with the important role they have played over the years and still play in the administration of justice in the country.3s Closely related to the exclusion of Magistrates' Courts in the Constitution is the definition of Judicial Office and Judicial Officer under section 277 of the Constitution; a definition which again excludes Magistrates' Court and

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