Judicial Powers, its Extent, and Restraints Under the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The meaning of the term ” judicial powers” has received a statutory flavour by virtue of Section 6(6)(1) of the 1999 Constitution, “Section 6(6)(1) of 1999, Constitution (as amended) which provides for the vesting of judicial powers in the superior courts of record set out in subsection 6(5)(a) to (i) thereof. “Judicial powers” means the authority of the court to adjudicate upon and decide any matter before it, which is within its jurisdiction.” Per IGE,J.C.A. (P.20, paras, C-E)

The judicial powers of the courts in Nigeria as enshrined in section 6 of the constitution (supra) and under the inherent powers of the courts as well as the provisions of chapter seven (7) of the constitution is not absolute but limited to certain grounds and actions which are clearly spelt out by the constitution itself, this writeup intends to explore some of these limitations to the judicial powers as contained in the constitution, some of these limitations are highlighted below.

RESTRAINT ON INTERFERING IN IMPEACHMENT PROCEEDINGS BY THE LEGISLATURE.

The constitution places a limitation on the courts from entertaining any matter with respect to impeachment proceedings in as much as it is done within the ambit of the law, the constitution in section 188 (10) provides thus:

“No proceedings or determination of the Panel or of the House of Assembly or any matter relating to such proceedings or determination shall be entertained or questioned in any court”

The court while giving life to this provision, held as follows,

“The impeachment of a Governor is a legislative constitutional affair outside the jurisdiction of the court. See Musa v. Kaduna State House of Assembly & ors 1982 3 NWLR p.450. Abaribe v. Abia State House of Assembly (2002) 14 NWLR (Pt. 788) p. 466.” Per RHODES-VIVOUR, J.S.C. (P. 114, paras. B-C).

Notwithstanding the above cited provision of the constitution which is in consonance with section 143 (10) in relation to the Impeachment of the president, the court is not completely barred from entertaining any matter which is in relation to an action done by the legislature which is tantamount to defiance of the express provision of the black letters of the constitution. The court is empowered under section 6(6)(b) of the constitution which empowers it to entertain matters as to question of interpretation of the constitution between all persons and authorities, the provision reads thus: that the judicial powers

shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person”

This section empowers the courts to jealously protect the sanctity and almighty sacredness of the constitution which is tailored towards ensuring the reign of rule of law and constitutionalism and as such, empowers the courts to declare any action done by the legislature which is not in compliance with the laid down inviolable lofty provisions of the constitution null and void, the courts had in a plethora of judicial authorities which all cannot be supplied here but only a few declared this position. In Okorocha v PDP ( 2014)57 NSCQR, 272, the Supreme Court emphasized on this duty when it stated that:

The court must do all it can to jealously guard its powers and the supremacy of our constitution as the grundnorm, which is above all other authorities. The court as the custodian of the constitution must not therefore be seen to ridicule the very institution that puts it in place”

The court while emphatically emphasizing on its duty to safeguard the maidenhood and unquestionable virginity status of the constitution, held as follows:

…I have limited my consideration of the appeal to the question as to whether section 188 of the 1999 Constitution, particularly subsection (9) thereof, had been complied with in the removal or impeachment of the 1st respondent primarily because there is no dispute as to the fact that only 8 out of 24 making up “all the members” of the Plateau State House of Assembly initiated and carried out the impeachment process of the 1st respondent. So on that point alone, which is a Constitutional requirement, it is clear that the Court of Appeal was right in coming to the conclusion that the said impeachment was not in conformity with the Constitutional provisions and consequently invalid. That holding is unassailable and is sufficient to sustain the decision of the lower court without more.” [Dapianlong & Ors v. Dariye & Anor (2007) LPELR-928(SC)]”

OUTSTER OF THE COURTS’ JURISDICTION FROM ENTERTAINING ANY MATTER UNDER CHAPTER II.

The constitution has donated to the Nigerian citizenry certain privileges called socio-economic and political rights which are the basic standard of political and economic development of the Nigeria’s nation with a view to making them actionable in court when they are subjected to certain conditions, but generally, these rights are not enforceable by virtue of Section 6(6)(C) of the 1999 constitution which places a limitation on courts from entertaining any matter that falls within same fundamental objectives and Directive Principle of State Policy, a verbatim reproduction of the wordings of the constitution would read as follows that the court,

shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution”

However, this limitation is not watertight as the subsection provided that “…except as otherwise provided by this Constitution…”, meaning that there are certain limitations provided by the constitution itself, the court gave credence to this assertion in its existential function as follows:

“The wordings of Section 14(3) are also clear and unambiguous and therefore should be given their plain and evident meaning. The purport of Section 14(3) is to ensure equality or fairness in the representation of each state in the conduct of the affairs of the Government of the Federation so that no one State or ethnic group will be deprived of participation in running the affairs of the Federal Government.

The wordings of Section 147(1) and (3) are also crystal clear and simple. They specifically express the need for the reflection of Federal Character in the appointment of Ministers so that each State has at least one Minister who shall be an indigene of the State. The proviso to Section 147 (3) is very crucial. … … … The raison d’etre for this proviso is to promote national unity and sense of belonging by all Nigerians. The essence of this provision, is made manifest by the directory that the appointment of minister must be in conformity with the provisions of Section 14(3) of the Constitution which is under Chapter II of the Constitution which covers Fundamental Objectives and Directive Principles of State Policy. I am conscious of the position of the law, that generally the provisions under Chapter II of the 1999 Constitution are not justiciable. See Sections 6(6)(c) of the 1999 Constitution, Archbishop Olubunmi Okogie v. Lagos State (1981) 2 NCLR 337 at 350, AG Ondo v. AG Federation (2002) 27 WRN 1 at 153. However, because of the importance of the reflection of federal character in the appointment of Ministers by the President, Section 14(3) was incorporated into the provisions for mandatory compliance. It is therefore absolutely important to note that the inclusion of S.14(3) for its compliance by the President in Section 147(3) now makes Section 14(3) in relation to Ministerial appointment justiciable.[Panya v. President, FRN & Ors (2018) LPELR-44573(CA)]”

3 LIMITATIONS AS TO THE QUESTION OF THE LEGITIMACY OF THE PAST MILITARY ADMINISTRATIONS AND LAWS MADE BY THEM.

It has been an indisputably notorious fact that the Nigerian polity had recorded a series of military interregnum and infiltrations since after attaining independence from the British imperialists in 1960, and the period between 15th January, 1966-29th May 1999 has been historic with the involvement of the able-bodied men in khaki and this led to the promulgation of a lot of obnoxious Decrees and Edicts passed by the military. Some of these decrees have played some significant roles in the development of the country. Virtually all the second generation Universities and the Trunk A highways that link many states in Nigeria are some of the good initiatives of the military, it is based on this premise that the drafters of the constitution cleverly and elegantly absorbed and retained those military laws as existing laws under section 315 of the constitution and the meaning of which is encapsulated under subsection 4(b) of the same section to mean:

Existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date”

Having seen what existing laws are, it is pertinent to look at the limitation as to question of the legality of the authority or the personality that made such an existing law, section 6(6)(d) of the constitution provides for the limitation and it provides as follows: that the court,

“shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law”
For proper appreciation of this provision, “…the date when this section comes into force…” refers to the commencement date of the constitution as provided under section 320 of the same constitution which is to the effect that,
“The provision of this Constitution shall come into force on 29th day of May 1999”

This limitation has immuned any act done by any person or authority done between the period of 15th January 1966 and 29th May 1999 which is the period in which series of military interventions were recorded, there is a lot of wisdom behind that as if this protective clause is not inserted in the constitution, many meddlesome interlopers (busy body lawyers) would have dragged the government to court to challenge all those nice innovations of the military governments. This limitation is also not absolute as section 315 (3) provides that,

Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law…

Nothing in this section bars the court from declaring any act or any existing law as inconsistent with the Constitution as the constitution always prevails based on the supremacy clause contained in section 1(3) of the constitution as,

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”

The court further went ahead to interpret the phrase ‘if any other law ‘ to mean,

‘‘If any other law’ – “Therefore any law, whether an Act of the National Assembly or Law of a House of Assembly, any Rules of Court like the First Schedule to the Electoral Act or even case law that conflicts with the Constitution is to the extent of the inconsistency void and of no effect. … In OBASANJO V. YUSUF (2004) 9 NWLR (PT 877) 144 AT 183 the Supreme Court held that “it is admitted that the Constitution being the supreme law of the country, is not subject to the Electoral Act or any law at all rather, it is the Act that is made subject to the Constitution. The Constitution is only subject to itself.” In keeping with the provisions of Section 1(3) of the 1999 Constitution, I hereby declare the said paragraph 27(1) of the First Schedule to the Electoral Act, void.” [Ngige & Ors v. INEC & Ors (2014) LPELR-25413]”

CONCLUSION

The rationale behind placing restraints on the judicial powers is solidly built on the track of foresight, wisdom and based on public policy on the premise that, power corrupts, and an absolute power corrupts absolutely, hence, the limitations.

Biography

Muhammad Ibrahim Usman( police) is a 300 level pupil of law and a research enthusiast, his area of interest includes taxation, ICT and artificial intelligence and constitution law, he can be reached via,
08145101965 or [email protected]

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