Self-inflicted constraints on judicial government in Nigeria

Journal of African Law

Volumn 49, Issue 1, 2005, Pages 39-53

  Ogowewo, Tunde I ^a  

^a KING'S COLLEGE LONDON   (United Kingdom)

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EID: 70449444762     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855305000045     Document Type: Article

References (53)

1. Interview with Funke Aboyade, THISDAY newspaper, 30 November, 2003.
2. See “Judicial Panel on the Reform/Reorganisation of the Judiciary”, the report of the judicial panel inaugurated 29 December, 1993, for a discussion of many of these problems.
3. See also, Osita Okoro, “The Judiciary and the New Development Agenda”, THISDAY newspaper, 13 February, 2004, for a catalogue of some of these problems.
4. Speech of the Chief Justice of Nigeria (Chief Justice M.L. Uwais) at the opening of the 2003 “All Nigeria Judges Conference”, Abuja, 12 February, 2004.
5. A recent valuable contribution in this journal is A.A. Olawoyin, “The phantom of the Bills of Lading Act, 1855, lives on: enforcing ownership and contractual rights under Bills of Lading in Nigeria”, [2004] 48 J.A.L. 82.
6. An example of this is the important contribution of Muiz Banire, “Overcoming the difficulty in registering caution on Certificates of Occupancy in Lagos State”, [2003] 47 J.A.L. 244.
7. [1987] AC 460.
8. See “Survey on corporate governance”, The Economist, 29 January, 1994, for a discussion of this concept in the field of corporate governance.
9. [2003] 3 NWLR 72.
10. [2003] 3 NWLR 72, 150.
11. The analysis that follows is one that I substantially develop in J. Hatchard and T.I. Ogowewo, Tackling the Unconstitutional Overthrow of Democracies: Emerging Trends in the Commonwealth, Commonwealth Secretariat: 2003, 14–49.
12. G.N. Na'Abba, the Speaker of the House of Representatives in Nigeria, in his paper “Military Rule and the Parliament in Nigeria: 1966–2000” (paper presented at the conference on “Legal Deterrents to Coups, 15–16 January, 2001), noted that “the parliament is the institution that suffers most from the activities of the military”. Further down, he observed: “Whenever a coup is staged against a civilian administration it simply means the overthrow of the authority of the constitution and the destruction of the parliament.”
13. [1999] 9 NWLR 187.
14. T. Mahmud, “Jurisprudence of successful treason: coup d'etat & common law” (1994) 27 Cornell Int'l Law Journal 49.
15. 531 US 98
16. 148 L.Ed. 2d 388 (2000).
17. F. Hassan, “A juridical critique of successful treason: a jurisprudential analysis of the constitutionality of a coup d'etat in common law”, (1984) 20 Stan. Journal of Int'l Law 234.
18. Judgement of the Supreme Court of Pakistan on Petitions Challenging the Provisional Constitutional Order and Proclamation of Emergency (PLD 1999 SC 57).
19. Judgement of the Supreme Court of Pakistan on Petitions Challenging the Provisional Constitutional Order and Proclamation of Emergency (PLD 1999 SC 57).
20. (1966) SC 377/1966.
21. [1967] 1 All NLR 213.
22. [1971] University of Ife Law Reports 201.
23. University of Ife Law Reports at 222.
24. (1968) (2) SA 284, 429.
25. On the grundnorm fallacy, see Hatchard and Ogowewo, above, n. 16, at 27–33.
26. S. 233(2) of the Constitution.
27. Per Chief Justice Uwais. Interview with Funke Aboyade, 16 January, 2004, THISDAY newspaper. This view is confirmed by practitioners. For instance, Mr Charles Adeyemi Candide-Johnson SAN recently observed that “I don't think it will be unfair to suggest as many as 50% of the cases that go to the Court of Appeal and the Supreme Court are not taken there for the purpose of determining a genuine issue.”
28. See Interview with Funke Aboyade, 18November, 2003, THISDAY newspaper.
29. Odinkalu and Amadi, “Killing the Supreme Court” (unpublished manuscript).
30. The view of this writer is that the Constitution is not valid. See, T.I. Ogowewo, “Why the Judicial Annulment of the Constitution of 1999 is imperative for the survival of Nigeria's Democracy”, [2000] 44 J.A.L. 135. Since no court has dealt with the question, I assume that the Constitution is valid and therefore susceptible to an amendment. If this is the case, then it may be wise to begin by amending the amendment clause, since that clause makes it nearly impossible to amend the Constitution. Reducing the threshold necessary for an amendment is what is needed to implement a process of “content” reform.
31. “The reform that we should do is to go back again to the base of the structure. The lower court is the base of that structure. Strengthen the base, restore dignity, quality, efficiency to the Magistrates Courts.” Per Justice Ayoola in n. 1 above.
32. See Part 44–48of the Civil Procedure Rules of England and Wales (CPR).
33. Figures supplied by the Supreme Court, 13 February, 2004.
34. [1960] NSCC 135.
35. The recent decision of the Court of Appeal (Lagos Division) in International Offshore Construction Ltd v. Shoreline Lifebonds Nigeria Ltd [2003] 16 NWLR 157, 178–179, is an uncommon instance of a case where the principle of Rewane v. Okotie-Eboh has been followed.
36. Random examples are Ekanem Etenam v. Edoho Eket (1933) (10 guineas)
37. Amu v. Ohenren (1957) 35 guineas.
38. (1932) XI NLR 45, 46 (“applicant to pay the taxed costs of this action”).
39. (1926–1933) VI-X NLR 8, 18 (“costs to be taxed”).
40. (1926–1933) VI-X NLR 19, 23 (“costs to be taxed”).
41. [1961] All NLR 183, 185.
42. [1966] 1 All NLR 25, 31.
43. [1964] 1 All NLR 55.
44. [1970] 1 All NLR 86.
45. [1968] 1 All NLR 31.
46. See Odinkalu and Amadi, “Killing the Supreme Court” (unpublished manuscript).
47. Odinkalu and Amadi, “Killing the Supreme Court” (unpublished manuscript).
48. [1999] 4 All ER 583.
49. On the different function of section 6(6)(b) of the Constitution, see the judgement of Ayoola, J.C.A. (as he then was) in NNPC v. Fawehinmi (1998) 7 NWLR 598
50. approved by the Supreme Court in Owodunni v. Registered Trustees of Celestial Church and Bada and Ors (2000) 6 S.C (Part III) 60.
51. Although the scope of this freedom may differ. See D. Landes, The Wealth and Poverty of Nations, 1999.
52. See “The Selected World Development Indicators” section of World Development Report 2002: Building Institutions for Markets, 2002, 230–249 for global wealth and poverty figures.
53. See World Development Report 2002: Building Institutions for Markets, 2002. It has been noted (at 9) that “[a] growing body of research links institutional success (and failure) to economic growth and market development over time and across countries.”