How has the judiciary fared?

Fifty-nine years after Nigeria got independence from British rule, how has the Judiciary fared? Has it lived up to its billing as ‘the last hope of the common man?’ ADEBISI ONANUGA and ROBERT EGBE highlight some of the landmark judicial decisions that have boosted nation building and helped the judiciary contribute to national cohesion and development

The judiciary can be said to be the most experienced of the three arms of government. The reason is simple: Whether under military rule or a democracy, the courts have always been on hand to moderate relationships between the government and the governed.

What many are also not aware, is that the judiciary, or at least forms of it, is also probably the oldest arm of government run by indigenous Nigerians.

 Evolution of the Judiciary in Nigeria

In an article titled, “The evolution of ideal Nigerian Judiciary in the new Millennium”, Yusuf Ali (SAN) stated that the judiciary has a history of four distinct eras, namely, the period before 1842, 1845-1912, 1914 to 1953 and 1954 to date.

Before 1842

Before the advent of the Europeans, the indigenous people of Nigeria had different methods of dispute resolution.

Among the Yoruba and Ibo, the system revolved around their traditional institutions. The Yoruba referred contentious matters to the head of the family. If he could not settle the dispute, the matter was taken to the head of the compound until a solution could be found up to the level of the King. Similarly systems existed among the Ibo.

In the North, the system was based on the Islamic legal system, the Sharia, the hub of which was the Alkali system and the emir was the ultimate appellate judge.

1845-1912

After 1842, Yusuf stated that the power to administer and dispense justice in Nigeria was mainly vested in native courts. These courts in dispensing  justice, fashioned out systems of taxation, civil laws and procedure, penal law and sentencing policies including death sentence. It should be noted that these Native Courts are the forerunners of the present Customary Area and Sharia Courts.

With the advent of the colonialists in the Southern part of Nigeria between 1843-1913, the British through a combination of Foreign Jurisdiction Act of 1843 and 1893 established law under which various courts were set up.

In 1854, the earliest courts called the Courts of Equity were established by the British in the Southern parts of Nigeria particularly Brass, Benin, Okrika and Opobo. The principal agents of trading firms, consular or other administrative officers constituted this court of equity, they acted as the judges.

Simultaneous in exercise with the courts of equity and consular courts were courts that were established by the Royal Niger Company. By a Royal Charter granted in 1886, the company had the power to govern and administer justice in its areas of operations, until the Charter was revoked in 1899.

Despite the establishment of British Courts, native courts were still allowed to function, in so far as the native law and custom they administered were not repugnant to natural justice, equity and good conscience.

According to him, in 1863, by Ordinance No 11 of 1863, the Supreme Court of Lagos was established, it had both civil and criminal jurisdiction.

In 1900, via the Supreme Court Proclamation Order No. 6, a Supreme Court was established for the Southern Nigerian protectorate. The Court exercised same powers and jurisdictions as were vested in Her Majesty’s High Court of Justice in England.

The common law, the doctrines of equity and status of general application in England were to be administered in the court in so far as local circumstances permitted.

Before 1892, Sharia Law in all its ramification was operative in most parts of Northern Nigeria. By the Northern Nigeria Order in Council of 1899, the British Crown claimed that by treaty, grant, usage, sufferance and other lawful means, Her Majesty had power and jurisdiction in the Northern territory.

1914 to 1953

According to Yusuf, when in 1914, the Northern and Southern Protectorate of Nigeria were amalgamated, Provincial Courts were abolished and in its place were established high courts which consisted of Chief Judges, Judges and assistant Judges. Below these High Courts were Magistrate Courts. Native Courts will remain at the bottom of the judicial hierarchy. The Supreme Court exercised appellate jurisdiction over the High Courts. Between 1934 and 1954 appeals from the Supreme Court went to the West African Court of Appeal. Appeals from the West African Court of Appeal went to the Privy Council. However from 1954, appeals from the Supreme Court of Nigeria went directly to the Privy Council.

The Era 1954 to date

In 1954, a Federal Supreme Court was established and was presided over by a Chief Justice of the Federation. Nigeria then consisted of three regions, each had a High Court presided over by a Chief Justice. Appeals from each of the High Court of the regions went to the Federal Supreme Court, while appeals from Magistrate Courts, Customary or Native Courts Grade A went to the regional High Courts.

When in 1967, Nigeria became a Federation of 12 States each with its own state judiciary, the Western State via the Court of Appeal Edict, No 15 of 1969 established a Regional Court of Appeal as a result of which the Supreme Court ceased to have direct jurisdiction to hear and determine appeals in any matter from the high court of the state (including appeals in any proceeding pending in any court in the State) except in any case in which notice of appeal to the Supreme Court had been filed as 1st  June 1967.

In 1970, 19 states were created in 1976 via the Constitution (Amendment No 2) Decree No 42 of 1976. Its function among others was to hear and determine appeals from the State High Courts. The law setting up the Western Court of Appeal was replaced.

Presently under the 1999 Constitution, the Courts recognised as constituting the judiciary are the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory Abuja, the Customary Court of Appeal, Abuja, the States High Courts, the Sharia Court of Appeal of the States and the Customary Court of Appeal of the states. These courts are vested with the functions or duties of dispensing justice, in accordance with jurisdiction vested in them. It should be noted that the establishment of a Sharia Court of Appeal or Customary Court of Appeal by a state is optional.

Historical cases that shaped national life from 1960 to date

Following the evolution of the judicial system, the courts have delivered and  will continue to deliver several landmark judgments that will determine how Nigerians co-exist. They affect all spheres of life, including business, human rights, politics, etc. Some of them are:

Darman Vs Minister of Internal Affairs

Perhaps, one of the court cases that became historical in the period under review was the suit challenging the deportation of Alhaji Abdurrahman Shugaba Darman by the Federal Government.

The incident happened during the tenure of President Shehu Shagari of the National Party of Nigeria (NPN).

Darman was a politician from Borno State, and a contemporary of the late Sir Ahmadu Bello. He was a founding member of the Great Nigeria People’s Party and was elected as a member of the Borno State House of Assembly in 1979 where he also became the House Majority Leader.

Deportation: Immigration officers, on January 24, 1980, arrested Darman on the strength of a deportation order signed by the then Federal Minister of internal affairs Alhaji Bello Maitama. The deportation order entitled ‘Shugaba Abdurrahman Darman’s Deportation Order 1980’, stated amongst other things that “…Shugaba Abdurrahman Darman at present in Nigeria ought to be classified as a prohibited immigrant” and also that he be deported from Nigeria by the first available means….”.

Darman was promptly deported to a village in Chad. In  response to the public outcry against the deportation, the government instituted a one-man tribunal of inquiry presided over by Justice P.C Okanbo. The NPN government and President Shehu Shagari in particular were quite concerned about the negative press that the issue was generating and also about allusions in the press to the partiality of the tribunal.

Darman’s troubles had allegedly started as a result of his being regarded as a threat by the ruling party of the time, the NPN.

He was a charismatic politician who attracted large crowds at political rallies; the crowds were drawn to his speeches in which he criticised the ruling NPN government. The government claimed that Shugaba’s father was a Chadian hence he was bundled up and deported to a village in Chad.

During the subsequent court case filed by the GNPP- led legal team of Chief D. O.A Oguntoye, to challenge the deportation order, the government brought a Chadian woman, weeping profusely, who claimed that Shugaba was her biological son whom she wanted back.

Shugaba denied knowing the woman and claimed that his mother was alive and well known in Maiduguri even though her sight was now poor.

The Maiduguri High Court ruled in Shugaba’s favour in the case of “Shugaba Darman vs Federal Minister of Internal Affairs and Others”, revoked the deportation order and awarded damages to the tune of N350,000 to Shugaba. The government appealed the verdict at the Court of Appeal in Kaduna and lost. The Supreme Court also ruled in Shugaba’s favour in a unanimous judgment by the four justices led by Justice Coker.

The case was later overtaken by the subsequent military coup and no compensation was paid. Shugaba  later forgave the Shagari- led government for his deportation.

The Awolowo v. Shagari case was a lawsuit between Chief Obafemi Awolowo and Alhaji Shehu Shagari in which Chief Obafemi Awolowo’s petition challenged the declaration of Shehu Shagari as the president-elect of the August 11, 1979, presidential election.

 Awolowo v. Shagari

One of the most contentious cases in Nigerian judicial history is the one involving Chief Obafemi Awolowo and Alhaji Shehu Shagari.

The suit was a presidential election petition between the Appellant, Chief Obafemi Awolowo and Alhaji Shehu Shagari of the NPN, where the court was required to interpret Section 34 A (i) (ii) of Electoral Decree No 73 of 1977.

According to the results announced on August 16, 1979 by the Federal Electoral commission (FEDECO), Shehu Shagari scored 5, 688, 857 votes nation-wide whilst Obafemi Awolowo had 4, 916, 651.

Awolowo, the applicant, did not dispute these figures but rather contended that Shagari’s scores were in-sufficient, because the law required a returned candidate must fulfil two conditions simultaneously; namely to have the highest number of votes, which Shagari had, but also have “…not less than one quarter of the votes cast at the election in each of at least two thirds of all the (19) states within the federation.” – which Shagari did not have, according to Awolowo.

By the declared results agreed, Shehu Shagari got 25% of the votes cast in 12 states; namely: Bauchi, Bendel, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. The 13th state was the issue. It was Kano State – where Shagari scored 243,423 votes, equivalent to 19.4% of the 1,220,763 votes cast in total.

On those agreed facts, the applicant prayed the Nigerian Supreme Court to declare as follows:- that although Shagari received 5,688,857 nationwide at the said election, Shagari still had less than 25% of the votes cast at the election in each of at least two thirds of all (19) states in the federation, and, the Election Tribunal was wrong to declare, based on the result in Kano State, that “…. 25% of two-thirds of the votes in Kano State is 203, 460.5 votes….,” and, therefore:

“The Supreme Court should now determine that the said Alhaji Shehu Shagari was not duly elected or returned and that his election or return was void.”

The applicant argued that the phrase “…in each of at least two thirds of all the states within the federation.” means thirteen (13) states because there is nothing either in the Electoral Decree of 1977 or the Electoral (Amendment) Decree of 1978 authorising fractionalisation of a state for the purpose of determining two thirds of its votes.

Further, he contended that insofar as fractionalisation of a state in this context is un-lawful, the phrase should instead be interpreted to mean that a candidate must score 25% of the votes in at least 13 out of the then 19 states in Nigeria.

It was wrong logic to determine two thirds of the votes in Kano by dividing the 1,220,763 total votes cast in Kano by two-thirds to arrive at 813, 842, and then declare Shagari’s own votes of 243,423 in Kano as greater than 25% of the total votes cast in Kano, since that will be tantamount to Shagari’s return as validly elected on the basis of one-sixth of the total votes in Kano State, contrary to law, he argued.

“The phrase ‘………in each of at least two thirds of all the states within the federation’ does not mean ‘in each of at least two thirds of all the votes within the federation’ “, Awolowo averred, “because states are not equivalent to votes in that phrase by any literal interpretation”.

But Shagari, the respondent disagreed and contrarily argued that the word “states” indeed means votes within that phrase.

Shagari submitted that his own total score of 243,423 in Kano State should therefore be held constant, whilst scaling down the total votes of 1,220,763 cast in all of Kano State by one third, to thereafter calculate and approve that he indeed scored 25% of the votes in Kano State.

Chief Justice Fatai Williams, who read the lead judgment of the Supreme Court observed that the Electoral Law as phrased was a “clumsily worded section”, but then rather oddly said “this clumsily worded section” is (nevertheless) “devoid of any semantic ambiguity”.

The court held that “Shehu Shagari won two-third of the total votes cast, having polled a total votes of 11.9 million votes ahead of Obafemi Awolowo who polled a total votes of 4.9 million out of a total 16.8 million with cast.”

Court prohibits law mandating policewoman to seek commissioner’s consent for marriage

Perhaps more historical is the federal high court decision which declared unconstitutional an archaic law, Regulation 124 of the Police Act on May 16, 2012.

Justice Steven Adah made the declaration while delivering judgment in a suit filed by the Women Empowerment and Legal Aid Initiative (WELA) challenging the constitutional validity of Regulation 124 made pursuant to the Police Act (Cap P19 ) Laws of the Federation of Nigeria.

The act stipulates: “A woman Police Officer who is desirous of marrying must first apply in writing to the Commissioner of Police for the State Command in which she is serving, requesting permission to marry and giving name, address and occupation of the person she intends to marry. Permission will be granted for the marriage if the intended husband is of good character and the woman police officer has served in the force for a period of not less than three years.”

ln her submissions to the court which led to the historical judgment, WELA Executive Director, Mrs. Funmi Falana, had argued that it was illegal to ban a woman police officer for three years before entering into a marriage and that seeking permission of a Police Commissioner is an infraction of her fundamental right to dignity and freedom of choice.

Falana had argued further since a male police officer is not subjected to the same inhibitions Regulation 124 is inconsistent with section 42 of the Constitution and Article 2 of the African Charter on Human and Peoples’ Rights which have prohibited discrimination on the basis of sex.

Falana urged the Federal High Court to expunge Regulation 124 from the Police Act as it is not reasonably justifiable in a democratic society like Nigeria which has domesticated the African Charter on Human and Peoples Rights and ratified the  Protocol to the African Charter on Human and People Rights on the  Rights of Women in Africa and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Responding, the Attorney-General of the Federation through his Counsel, Mr. B.R. Ashiru maintained that Regulation 124 is designed to protect women police officers from falling into the hands of criminals.

Ashiru further submitted that the purpose of the law is to prevent women police officers from marrying men of bad character.

He also defended the three-year ban on the ground that it is meant to ensure that a woman police officer is not pregnant “during the rigorous training she must undergo after her employment”.

Delivering judgment in the matter, Justice Adah rejected the arguments of the respondent.

The court held that Regulation 124 was illegal, null and void due to its inconsistency with Section 42 of the Constitution. Having declared it unconstitutional, the judge proceeded to annul Regulation 124 by virtue of Section 1(3) of the Constitution.

Supreme Court upholds right of female child to inherit properties in Igboland

On April 14, 2014, the Supreme Court voided the Igbo law and custom, which forbid a female from inheriting her late father’s estate, on the grounds that it is discriminatory and conflicts with the provision of the constitution.

The court held that the practice conflicted with section 42(1)(a) and (2) of the 1999 Constitution. The judgment was on the appeal marked: SC.224/2004 filed by Mrs. Lois Chituru Ukeje (wife of the late Lazarus Ogbonna Ukeje) and their son, Enyinnaya Lazarus Ukeje against Mrs Gladys Ada Ukeje (the deceased’s daughter).

Gladys had sued the deceased’s wife and son before the Lagos High Court, claiming to be one of the deceased’s children and sought to be included among those to administer their deceased’s father’s estate.

The trial court found that he was a daughter to the deceased and that she was qualified to benefit from the estate of their father who died intestate in Lagos in1981.

The Court of Appeal, Lagos to which Mrs. Lois Ukeje and Enyinnaya Ukeje appealed, upheld the decision of the trial court, prompting them to appeal to the Supreme Court.

In its judgment, the Supreme Court held that the Court of Appeal, Lagos was right to have voided the Igbo’s native law and custom that disinherit female children.

Justice Bode Rhodes-Vivour, who read the lead judgment, held that “no matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her later father’s estate.

“Consequently, the Igbo customary law, which disentitles a female child from partaking in the sharing of her deceased father’s estate, is in breach of Section 42(1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian.

“The said discriminatory customary law is void as it conflicts with Section 42(1) and (2) of the Constitution. In the light of all that I have been saying, the appeal is dismissed. In the spirit of reconciliation, parties to bear their own costs,” Justice Rhodes-Vivour said.

Justices Walter Samuel Nkanu Onnoghen, Claral Bata Ogunbiyi, Kumai Bayang Aka’ahs and John Inyang Okoro, who were part of the panel that heard the appeal, agreed with the lead judgment.

Lagos State Waterways Authority & Ors v Incorporated Trustees of Association of Tourist Boat Operators &Ors

Outcome: States have power to regulate inland waterways

Who has the right to make laws/regulate intra state waterways/inland waterways; the National Assembly or the State House of Assembly?

On July 18, 2017, the Court of Appeal sitting in Lagos upheld the argument of Lagos State Attorney-General Adeniji Kazeem that by virtue of sections 4(2), 4(4)(a), Sections 315 and Items 36 and 64 of the Exclusive List of the Constitution, that power belongs to the states.

The case, which is now before the Supreme Court, was instituted on May 22, 2012 at the Lagos Division of the Federal High Court by the Lagos State Waterways Authority and three others.

The defendants/respondents were The Incorporated Trustees of Association of Tourist Boat Operators & Water Transportation in Nigeria, Incorporated Trustees Dredgers Association of Nigeria Transport, National Inland Waterways Corporation, Nigeria Maritime Standard And Safety Agency, Minister of Mines & Steel Development and Minister of Transport.

The Appellate Court, in a unanimous decision, held that the Lagos State House of Assembly is competent to make laws in respect of the intra-Inland Waterways in Lagos State except inter-state waterways declared as international or interstate waterway under Item 5 in the 2nd Schedule to the National Inland Waterways Act.

In the leading judgment of the court, Justice Hussein Mukhtar held: “Item 64 is couched in no narrower scope as it deals with water from such sources declared by the National Assembly to be sources affecting more than one State.

“The inland waterways within Lagos State are not and cannot by any stretch of interpretation be covered by any item on the Exclusive Legislative List under Part 1 to the Second Schedule of the Constitution and I so hold.

The court also held that “the authority of the Lagos State House of Assembly to legislate in respect of all intra-state inland water ways is not in doubt” and all other inland waterways within Lagos State are within the legislative competence of the Lagos State House of Assembly and any revenue accruable therefrom is payable to the Lagos State Waterways Authority.”

CBN and Freedom of Information

In 2011, Nigeria passed the Freedom of Information Act, which seeks to guarantee citizens’ access to public information.

The law is revolutionary in the scope of information to which it grants access, and the safeguards contained therein are a welcome departure from the pervasive secrecy in Nigerian governance. The Lagos Federal High Court recently had the first opportunity to interpret and apply this law in Boniface Okezie v Central Bank of Nigeria.(1) The Central Bank is a government agency.

On August 1, 2009, the Central Bank, exercising its powers under the Central Bank of Nigeria Act, fired the executive directors of five Nigerian banks for borderline fraudulent acts and mismanagement of bank resources.

The affected bankers were also prosecuted by the Economic and Financial Crimes Commission which, in collaboration with the Central Bank, sought to recover some of the assets that they had allegedly stolen.

However, there were questions about the manner in which the recovery of the assets was being handled, particularly the apparent lack of consideration for the rights of the affected banks’ shareholders.

In 2012, the Progressive Shareholders Association of Nigeria, represented by its president, Boniface Okezie, wrote to the Central Bank requesting information relating to the recovery of Oceanic International Bank Plc’s assets.

The basis for the request was that taxpayers’ money was being used for the prosecution of the banks’ chiefs and the reform process. The association also believed the entire reform process to be a drain on the economy, benefiting only a few.

When the Central Bank refused to disclose the information  requested by the association, a suit was instituted against it under the Freedom of Information Act. The association requested the court to compel the bank to publish its handling of approximately N191 billion’s worth of assets forfeited by Ibru.

In a landmark ruling on the application of the Freedom of Information Act, the court held that the Central Bank, as a public institution, has a duty under the act to provide details of such information, and that the bank’s refusal to disclose the information on request by the association was unlawful.

Justice Mohammed Idris ordered the bank to comply with the association’s request by releasing the information sought. Stressing that it was unlawful for the bank to withhold the information, the court observed that:

“The Act is intended to promote transparency and prevent corruption, therefore all public institutions must ensure that they comply with the FOI Act in the interest of transparency, justice and development.”

Liberalisation of party registration

In Balarabe Musa v. INEC (2003) 10 WRN 1 the political space was liberalized when the Supreme Court struck down the stringent conditionalities imposed by Independent National Electoral Commission (INEC) on new political parties.

The right of private prosecution

In Fawehinmi v. Akilu (1987) 2 NWLR (PT 67) 767 the  Supreme Court relaxed the anachronistic doctrine of locus standi so as to permit the private prosecution of criminal offences by concerned individuals on the ground that “we are all our brothers’ keepers.”

The President, governors can be investigated

In Fawehinmi v. Inspector-General of Police (2002) 23 WRN 1 the Supreme Court declared that public officers covered by the immunity clause in Section 308 of the Constitution can be investigated while in office.