LEGAL IDEAS FORUM

THE CONTROVERSY BETWEEN THE JUDGEMENTS OF THE SUPREME COURT AND EXTANT LEGISLATION: A PLAGUE IN OUR LEGAL SYSTEM FOR URGENT JUDICIALISM

 
MBANG CONFIDENCE


The Supreme Court is the highest court of the land embodies with the power to interpret the law as made by the legislature to all intent and purposes. They reserve  the sole right to interpret laws, but this is without prejudice to their powers and authority to make judge made laws through the instrumentality of the doctrine of pecedents expressed in the Latin maxim as “stare decisis et non quieta movera.” (See Nepa V. Onah (1997)1 NWLR 680, at 688.

The constitutional and legal implication of the judgements of the Supreme Court is like the mount of jilbratar that cannot be shaken., However, there are some judgement of the supreme court that are to all intent and purposes controversial to the intention of the drafters of the laws, and this in essence has raised polemical argument; conflict of opinions and legal disasters for the court, legal practitioners, law teachers and students alike. The reasoning of some commentators is that as Bairamian J.S.C. has stated in Okumagba V. Egbe (1965) 1 ALL NNR 62-“the office of a judge is jus decere, not jus dare,  to  state the law, not to give law,” 
Therefore, it is a usurpation of the duties of the legislatures to so do. In the midst of an inferno and the red sea, I ponder and wonder as to the law to give credence and due recognition in times of legal clash, it is the enigmas that this conundrum portends that has led the writer on a voyage of discovery and certainty as to the right attitude to put up in times of such controversies.
It is settled law that by virtue of section 4 of the 1999 constitution of the federal republic of Nigeria, the legislature reserves the right to make laws and by section 6  judiciary interprets the law as made, but de die in diem the laws are being given interpretation by the courts and in some occasion, the judgement of the supreme court tends to contradict the extant laws where the decision is predicated, this is a plague in our legal system laid bare without an open intervention for certainty.

Happily, there are arguments in favour of the Supreme Court to be the pathway of followership, but before I dabble into that, it is pertinent to disclose the fact that many times argument has been procured that the law is and should be what the legislature says and this is in tandem with the positive school of thoughts. However, I take the liberty to differ and align my reasoning’s with the realist school of thoughts. For purposes of scholarship, I shall take solace form the words of justice Oliver Wendell holmes, when he stated that “the law is what the judge`s say, and nothing more pretentious”.

This assertion was not laid to rest as Nna-Emeka Agu on one occasions was pungent to say that the law as made by the legislature are just like bare skeleton which must be given flesh by the courts of law. Before I move further it is expedient to examine a decision of the supreme court that was given without the intention of the legislatures. In Mbanegen Shande V. the state (2005)12 NWLR (Pt.939)301 –A married woman murdered her husband friend, a female, by setting her on fire with kerosene leading to her death, upon an information filed against her, on appeal to the supreme court, she pleaded the defence of provacation, the learned justices of the supreme court in a unanimous decision through EJewunmi J.S.C delivering the led judgement of the court held that,

’’ the trial judge and the court below failed to consider exhibit 5 of the accused testimony and entered a verdict of discharge and acquittal in favour of the accused’’ 
The reasoning of the court was that considering the fact of the case which dealt with the agony of a married woman who had suffered such neglect and reckless abandoned by her husband because of the lady who was so confident to even sleep beside her on her matrimonial bed, such act made the accused to lose her mind and self-control thus leading to the commission of murder contrary to section 221 of the penal code.
Positively speaking, it is observed that this is an equity judgement which goes contrary to the law, but the question that begs for an answer is, is that above case not a law (case law)? I answer this question in the affirmative that is it a law. For in the immortal words of Kayode Eso J.S.C in Trans- bridge co Ltd v. security international Ltd(1986)4 NWLR pt.37) 576 On relationship between equity and law, hear him;


’’For it be noted that equity should not be treated as a tyrannous  phenomenon threatening the law, it does not exist in vacuo or supposedly to roam about pouring water on  the  fire of the law. It is part of a legal system which has been mixed with law and the admixture is for the purpose of achieving justice’’

 

It is my submissions that the equity judgement of the supreme court whether anchored on public policy is law and remains the law until expressly overruled by the court itself or a legislation on that matter in question, this is so irrespective of the fact there are recent authorities of the supreme court on the same subject matter that are in line with the Act or law, so implied repeal should not be contemplated at all. For this purpose, I take the liberty to hide under the words of Kayode Eso J.S.C in Adigun V. Attorney-General of Oyo state and Ors (1957)2 N.W.L.R 197, hear him;
 “the decisions of the supreme court is final, final in the sense of real finality in so far this particular case before that court is concerned it is final for ever, except there is a legislation to the contrary and it had to be a legislation ad-hominem. The supreme court may depart from the principle laid down in their decision in future cases, but does not alter the right, privileges or detriment of the parties concerned arising from the original case”. May I lay emphases on the phrase “real finality”, the implication of that phrase is that any judgement of the supreme court is the law for the time being in force.

In conclusion, it is submitted that the decisions of the supreme court is the law, and the attitude of the court and academian should be that it is what the court says is law that is law because they are the custodians of the law, laws are made for men and not men for laws.
ABOUT THE WRITER.
Mbang Confidence (S.A.S) is a final year student of the faculty of law University of Calabar, a paralegal of the Godwinson Churchill and co law firm Calabar, he has passion for exploring the law with his Articles and Agitations.for more info :mbangconfidence714 @gmail.com
        
                        Copyright Reserved
                                   ©2020
For knowledge and Justice

 548 total views,  2 views today

Leave a Reply

Your email address will not be published. Required fields are marked *

error

Enjoy this blog? Please spread the word :)

Open chat