By Nonso Anyasi
The judicial powers of the Federal Republic of Nigeria are vested in the Courts established by Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The courts are established for the primary purpose of resolving disputes amongst litigants who approach it for the determination of their civil rights and obligations.
There are three traditional arms of government, viz- the legislature, the executive and the judiciary. The legislature is that arm which is concerned with law making whilst the executive arm of government is concerned with the enforcement of laws and policies. The judiciary interprets laws and resolves disputes. Under the governmental doctrine of separation of powers, each arm of government is not expected to encroach into the activities of the other arms of government.
In the exercise of its constitutional role of dispute resolution, the courts resort to interpretation of existing laws and regulations which are applicable to that dispute. The courts interpret the laws made by the legislature and make pronouncements on the rights of the parties before it. In performing this legal duty of interpreting the law, the courts are expected to take particular care to ensure that it pronounces on the rights of only the parties before it. This is an inveterate doctrine that has taken root in our jurisprudence and the Supreme Court has emphasized in a plethora of cases that a court is not expected to make a pronouncement in favour of a person who is not before the court as a party/litigant or who was not given the opportunity of being heard. Please see the cases of Alhaji Mudashiru Kokoro-Owo & Ors v. Lagos State Govt & Ors (2001) LPELR- 1699 (SC) and Comrade Mike Alioke v. Dr. Victor Ike Oye & Ors (2018) LPELR-45153(SC).
How Does the Supreme Court Make/Shape Policy?
It is necessary to emphasize as a preliminary point that the Supreme Court of Nigeria is the highest court in Nigeria and its decisions are binding on every person and authorities breathing the air in Nigeria. Under our principle of stare decisis, or judicial precedence, the decisions of the Supreme Court of Nigeria are followed and obeyed by all subordinate courts in Nigeria. Therefore, the pronouncements of the Supreme Court are not only meant for the benefit of the litigants who approach that court, but are also meant for the benefit of all Nigerians including the unborn generations whose rights may be likely affected by the reasoning and logic of the Apex Court. Therefore, although most of the points raised hereunder apply to almost all superior courts of record, the peculiar position of the Supreme Court as the highest court of the land (with nationwide jurisdiction) places its decisions in a position to influence the policy of the entire nation.
A. By Interpreting the Law
Under the principle of separation of powers in our jurisprudence, judges are expected to refrain from “making the law” in the process of adjudication of disputes as this is the exclusive preserve of the legislative arm of government. The Court of Appeal explained this duty with clarity in the case of Action Congress of Nigeria v. Rivers State Independent Electoral Commission & Ors (2013) LPELR-21169(CA) where the Learned Lord Jonah Adah JCA stated the law thus:
“It is trite that Courts do not make laws. They interpret laws. Courts cannot amend the constitution or any part thereof. There is no doubt that under our constitution, the three arms of government in both the Federation and the States are distinct and separate, and each has its functions and powers clearly set out. The judicial powers of the Federation and the States are vested in the Courts established for the Federation and the States respectively. Although the traditional function of the Courts is to interpret, uphold and pronounce what the law is and not what it ought to be, very often judges make useful comments in the course of interpreting a law which later turn out to influence an amendment to that law. See the cases of Global Trans. Oceanica S.A. v. Free Ent. (Nig) Ltd (2001) 5 NWLR (Pt.706) 426; and Asari Dokubo v. F.R.N. (2007) 12 NWLR (Pt. 1048) 320.”
As a corollary to the above, the Supreme Court makes and shapes policy when it is called upon to interpret certain provisions of the Constitution. This is because the route which a court takes when interpreting the provisions of our sacred and organic constitution is different from the route it takes when it is interpreting a mere statute. The Supreme Court explained this role in the case of Marwa v Nyako (2012) 6 NWLR (Part 1296) 199 when it held thus:
“When interpreting the Constitution, the court must bear in mind that it is dealing with an instrument which controls and regulates the powers and functions of government, controls the rights and obligations of the citizen and controls the peace and order of the society upon which the Constitution is supposed to operate. While in an ordinary statute the normal rule is that the terms used must be given the meaning they bore at the passing of the statute, a constitution is intended to be permanent and must be interpreted by looking at the past and according to present conditions in order to fulfil the object and true intent of the Constitution. A Constitution must therefore be interpreted and applied liberally. A Constitution must always be considered in such a way that it protects what it sets out to protect or guides what it set out to guide. By its very nature and by necessity, a constitutional document must be interpreted broadly in order not to defeat the clear intention of its framers.”
Therefore, it is clear that the Court has a mandate to ensure that it interprets the provisions of the constitution in such a way that the fundamental rubrics of the society are protected. Although the administration of the country is the near-exclusive preserve of the executive arm of government, this country will also be governed by the pronouncements of the Supreme Court. The rights of every Nigerian would be affected by the interpretation which the Apex Court gives to the Constitution; whether liberal or restrictive.
In interpreting the laws of the land and the Constitution, the Courts employ several canons of interpretation. Ordinarily, Courts are enjoined to make use of the literal rule of interpretation when construing statutes. This is the ground rule. A Court of Law is meant to give statutes their literal and unambiguous meaning where same is clear.
However, there are times when the intentions of the draftsperson of a law (including the Constitution) is obfuscated and the courts may have to jettison the literal rule of interpretation and adopt other modes of interpretation. It is in the exercise of these constructive modes of interpretation that the policy-making role of the Supreme Court is emphasized. One of the canons of interpretation which accentuates the policy-making role of the Apex Court is the purposive rule of interpretation wherein the Courts embark on a jurisprudential odyssey to unveil the unclear purpose for which a legislation was enacted. In doing so, the Courts shape (judicial) policy by the application of this liberal rule which would be followed by the lower Courts through the inveterate doctrine of stare decisis and also binding on all persons and authorities in Nigeria.
One of the popular instances in which the Supreme Court made use of the purposive rule of interpretation to shape judicial (and labour) policy in Nigeria is in the celebrated case of Skye Bank v Iwu (2017) 16 NWLR (Part 1590) 24 wherein the Apex Court applied this rule of interpretation in unravelling the hitherto ambiguous intention of the framers of the Constitution of the Federal Republic of Nigeria, (Third Alteration) Act (Act No 3), 2010. Prior to this decision of the Apex Court, Nigerians were unclear and confused as to whether there was an existing right of appeal to the Court of Appeal against certain decisions of the National Industrial Court which did not involve questions of fundamental human rights. The Constitution was unclear on whether such right of appeal existed and how it was to be exercised. Litigants who were aggrieved by certain decisions of the National Industrial Court were at loss on how to appeal against these decisions, and the justices of the said National Industrial Court sometimes saw themselves as overlords of a final court whose decisions are not appealable in certain cases.
To further confuscate the problem, there were conflicting decisions of the Court of Appeal on this issue and there was a need for the Apex Court to step into the arena to clear the ambiguity for the benefit of our labour laws. The Court of Appeal then stated the case of Skye Bank v Iwu to the Apex Court for it to resolve this jurisdictional dilemma. In resolving the forensic issues case stated to it, the Supreme Court refused to share its primacy with the National Industrial Court and held that all decisions of the National Industrial Court of Nigeria are appealable to the Court of Appeal; as of right in matters involving complaints of fundamental rights, and with the leave of court in all other matters. The decision of the Supreme Court in this case of Skye Bank v Iwu helped shaped both labour and judicial policy in the Country. The Learned Justices of the Apex Court who delivered this judgment were mindful of the fact that the National Industrial Court was established to cater for the labour and industrial needs of the Country. Hence, the Apex Court did a fine job in balancing the need for speedy dispensation of justice in labour related disputes and also the need to protect the rights of access to court and fair hearing of litigants who approach the National Industrial Court.
B. By Enthroning Substantial Justice
The Supreme Court being the Apex Court in the land is clothed with jurisdiction to determine cases which are of general public interest and capable of shaping the policy of the country or of making policy for the country. The Justices of the Supreme Court wield a special power that enable them to give decisions/judgments that is capable of determining the rights of other Nigerians who are not even before the Court as litigants. For example, in the locus classicus case of Savannah Bank v Ajiloh (1989) 1 NWLR (Pt 97) 305, despite the fact that the forensic dispute at the Supreme Court was between Savannah Bank of Nigeria and David Oni-Orisan on the one hand and Ammel O. Ajilo and Ammels Photo Industries Ltd on the other hand, the Supreme Court essentially determined the rights of millions of Nigerians who hitherto owned statutory interests in land in Nigeria and also shaped the land registration policy which governed the rights of millions of Nigerians who would acquire interest in land in Nigeria after that decision was given.
Consequently, as a result of the far-reaching effect of the decisions of the Supreme Court, the Justices of the Apex Court have always been advised to ensure that they give effect to the enthronement of substantial justice at all times. In the case of Engineering Enterprises Contractor Company of Nigeria v Attorney General of Kaduna State (1987) 2 NWLR (Pt. 57) 381, the Noble Lord Kayode-Eso JSC observed as follows:
“One stream that permeates through all these decisions, and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filed with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force, and action of the Court. I am not saying that ex debito justiciae, by itself is a cause of action, it is to be the basis for the operation of the Court, whether in the interpretative jurisdiction or the basic attitude towards the examination of a case.”
The Nigerian Apex Court has adopted with commendable approval, the opinion of the erudite English Jurist, Lord Denning MR, in his book, Family Story, where he postulated at page 174 as follows:
“My root belief is that the proper role of a judge is to do justice between the parties before him. If there is any rule of law which impairs the doing of justice, then it is in the province of the judge to do all he legitimately can to avoid that rule – or even to change it – so as to do justice in the instant case before him. He need not wait for the legislature to intervene because that can never be of help in the instant case. I would emphasize however, the word ‘legitimately’ the judge himself subject to the law and must abide by it.”
Hence, there are instances where the Apex Court can choose to ignore a purported rule of law which would hinder the enthronement of substantial justice, and in doing so, they compel the legislature to make drastic amendments to the law which would favour the polity. A classic example is the decision of the Apex Court in the case of Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227 which prompted the National Assembly to introduce drastic reforms to the Electoral Act vide an amendment.
C. Judicial Review
Similarly, the judiciary is imbued with the power of judicial review. The Courts have the inherent power to strike down the provisions of any legislation or custom that is not in conformity with the constitution in the exercise of its interpretive jurisdiction. This exercise of judicial review is tantamount to policy making, as the decisions of the courts shape the lives of millions of Nigeria. For example, in the case of Mojekwu v Mojekwu (1997) 7 NWLR (Part 512) 283, the Court of Appeal struck down a rampant customary law in Eastern Nigeria which hitherto prevented females from inheriting the estate of their deceased fathers. In that case, the Noble Lord Niki Tobi JCA (as he then was) shaped the customary law policy of Nigeria when he held as follows:
“A court of law, being a court of equity as well, cannot invoke a customary law which is repugnant to natural justice, equity and good conscience. The “Oli-ekpe” custom is one of such customs as it permits the son of the brother of a deceased person to inherit the property of the deceased to the exclusion of the deceased’s female child.” (P. 305 @ paras. D-E)
This decision of the Court of Appeal was upheld and affirmed by the Supreme Court in the latter case of Mojekwu v Iwuchukwu (2004) 11 NWLR (Part 883) 196.
In addition, the Apex Court also exercises its power of judicial review over certain actions of the executive arm of government and shapes policy in doing so. For example, the Supreme Court was notorious for striking down certain ouster clauses in military decrees during the tumultuous decades of military administration in Nigeria, which has now formed the bedrock for the protection of the fundamental right of access to court which is now available to every Nigerian.
D. Political Doctrine/Political Tendencies
It is trite that the Judiciary is constitutionally empowered to checkmate the overzealous excesses of the other arms of government. The level of seriousness at which the judiciary would perform this checkmating function can be directly traced to the attitude which the Apex Court approaches such issues. For instance, the Apex Court made it clear by its decision in the cases of Inakoju v Adeleke (2007) 4 NWLR (Pt. 1025) 423 and Governor of Ekiti State & Ors v Prince Sanmi Olubunmo & Ors (2017) 3 NWLR Part 1551 Page 1 that the judiciary would no longer sit by and watch while some rogue elements in the legislature and executive respectively attempt to turn the law on its head or hijack a lacuna in the law to achieve an illegal or immoral purpose.
Prior to the decision in Inakoju v Adeleke (Supra), the courts were shy to dabble into matters dealing with the removal of a governor or deputy governor from office due to the ouster clause in Section 188 (10) of the Constitution and the earlier decisions of the Court of Appeal on this issue. This gave the members of some states Houses of Assembly the imprimatur to resort to all sorts of political trickery and gimmicks in order to remove a sitting Governor from office because they knew such activities would be unchecked by the judiciary. However, the Supreme Court in Inakoju v Adeleke refused to have any of this and laid down the principle that any legislative exercise which purports to impeach a sitting governor or deputy governor from office must be done in strict accordance with the law else the Courts will intervene and set same aside notwithstanding the ouster clause in Section 188 (10) of the Constitution. This decision had a tremendous effect on governance as it has shaped legislative policy against any arbitrary exercise of the powers of checks and balances under Section 188 of the Constitution. The Noble Lord Niki Tobi JSC remarked, quite commendably, in his leading judgment as follows:
“The Legislature is the custodian of a country’s Constitution in the same way that the Executive is the custodian of the policy of Government and its execution, and also in the same way that the Judiciary is the custodian of the construction or interpretation of the Constitution. One major role of a custodian is to keep under lock and key the property under him so that it is not desecrated or abused. The Legislature is expected to pet the provisions of the Constitution like the way the mother pets her day-old baby. The Legislature is expected to abide by the provisions of the Constitution like the way the clergyman abides by the Bible and the Iman abides by the Koran. And so, when the Legislature, the custodian, is responsible for the desecration and abuse of the provisions of the Constitution in terms of patent violation and breach, society and its people are the victims and the sufferers? and in this particular context, the Oyo State society and the respondents, particularly the third respondent. Fortunately, society and its people are not totally helpless as the Judiciary, in the performance of its judicial functions under section 6 of the Constitution, is alive to check acts of violation, breach and indiscretions on the part of the Legislature. That is what I have done in this judgment. I do hope that this judgment will remove the apparent wolf in the appellants as members of the House of Assembly of Oyo State.”
Similarly, in Governor of Ekiti State & Ors v Olubunmo & Ors (Supra), the Apex Court descended heavily on the executive arm of government when the Ekiti State Governor had purported to sack all constitutionally created Local Government Councils in Ekiti State replaced them with caretaker committee whilst relying on Sections 23B(i) and (ii) of the Ekiti State Local Government Administration (Amendment) Law, 2001 as the justification for his action. The Supreme Court in condemning this affront on the Constitution vouchsafed the inviolability of the provisions of Section 7(1) of the Constitution which provides for democratically elected local government councils. Therefore, by virtue of this decision of the Apex Court, no governor can purport to sack any democratically elected local government council in his state for any reason whatsoever without drawing the ire of the judiciary.
The attitude of the Apex Court in descending heavily on the other arms of government in cases like Inakoju and Olubunmo has set down a policy which guides these other arms of government that every exercise of their powers to checkmate the excesses of one another must be done with utmost fealty to the spirit and intendment of the Constitution.
Some Justices of the Apex Court have also unsuccessfully tried to shape (electoral) policy by their dissenting decisions. The recent Imo State and Zamfara State Supreme Court review cases wherein the Applicants in those cases had approached the Supreme Court to review its earlier decision on appeals emanating from the elections conducted in those states are classical examples. The decisions of the Supreme Court have always been immutable since time immemorial and the Apex Court has always been reluctant to review or set aside its own decision which it has earlier given, no matter the extenuating circumstances. However, the Noble Lord Chima Nweze JSC had dissented in both cases, and held on to the view that the Supreme Court should be able to review its earlier decision where it made an apparent error. The dissenting opinions of the Noble Lord Nweze JSC although unpopular at this time, may form the bedrock for a future change in electoral policy in Nigeria. The purpose of such dissenting opinions is to strengthen our law and the administration of justice.
The Justices of the Apex Court must ensure to always be guided by judicial restraint when exercising their policy making roles in the discharge of their duties. Many jurists are of the opinion that the democratic process and legislative enactments which represent the will of the people should direct changes in policy and not judicial activism. Justices of the Supreme Court (and other courts) are appointed and not elected. Hence they do not possess the sovereign will of the people unlike their counterparts in executive and legislative arm of government. However, the judges of the Court have a fundamental duty to right societal wrongs through their interpretation of the law.
This writer ultimately submits that the Justices of the Apex Court should be guided by the fundamental prescription that the Constitution being an organic document should be interpreted in the context of modern life and modern problems.