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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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