INDEPENDENCE OF THE JUDICIARY – A CONTEMPORARY

ANALYSIS OF THE NIGERIAN EXPERIENCE

BY
DR ISAAC OLUTOYIN BABATUNDE.

LL.B ( Hons) Benin, LL.M, M.Phil, Ph.D (Ife) B.L; Senior Lecturer/Ag. Head,
Department of Public Law, Ekiti State University, Ado-Ekiti; Barrister and Solicitor
of the Supreme Court of Nigeria. E- mail address eruks63 @yahoo.co.uk.

Introduction

The title “Independence of the Judiciary” is not strange to any law student
talk less of a Lawyer no matter his age at the bar. Judges and legal writers have at
one time or the other delivered or written articles that bother on the
Independence of the Judiciary.1 It must be said with all sense of responsibility
that the last may not have been heard on the independence of the judiciary in
Nigeria including this one. I must quickly add here that the opinion expressed in
this paper is entirely mine.
The recent happenings over the “Sack of Salami” by the relevant authority 2
and the furore the issue generated accounted for the choice of the topic as an
opportunity to ruminate over the issue of independence of judiciary and examine
how independent is the judiciary in democratic setting or better still; how
independent is independence of the judiciary?
This paper will examine the subject in a holistic manner without
necessarily adopting a particular stereotyped method.

1
See for example Oputa C (1993) “The Independence of the Judiciary in a Democratic Society – Its Need, Its
Positive and Negative Aspects” in Elias. T.O and Jegede M. I (eds) Nigerian Essays in Jurisprudence, MIJ
Publishers Limited, Lagos P 222; Essien E (2006) “The Judiciary and Democracy in Nigeria: A case for
Independence of the Judiciary.” in Yusuf F. A.O (ed) The Nigerian Judiciary – Perspectives and Profile. F H L
Publishers, Lagos. P. I.
2
See Odebode N et al (2011) “Salami: Jonathan under Fire” The Punch, Tuesday August 23. P2, Chidozie. I
and Adesomoju A (2011) “PCA: CJN Swears in Adamu Amid Tight Security” The Punch, Ibid. P2. Utebor C
(2011) “Soyinka Denounces NJC, Lawyers Boo Adoke” The Punch, op cit P. 12; Chidozie I (2011)” NJC Asks
Court to Dismiss Salami’s Suit” The Punch, Thursday September 8. P. 8. Chidozie 1 (2011) “Salami’s Counsel
Secure leave for substituted service” The Punch, Friday, August 26. P 6.

1
 Law, Judiciary and Administration of Justice
The law, the judiciary and administration of justice are so intertwined that
they comprise of what is known as a legal system, 3 although other participis in
the administration of justice include the police, the prisons, officers of the courts
and others not expressly mentioned. For the purpose of this discussion we will
limit our discussion to the judiciary.
Law
While it is easy to define the first law of Demand and Supply as “the higher
the price; the lower the quantity demanded, 4 to satisfy the aspiration of
economists world over, a lot has been said and written about the term “Law”, its
genesis, and the role it is expected to play in the organization and development of
man from his primitive times till today. 5 However, to embark on a satisfactory
definition of law has not been easy.
As the maxim goes, Quot homines tot sententiae – Nobody, including the
lawyer has offered, nobody including the lawyer is offering, nobody including the
lawyer will ever be able to offer a definition of law to end all definitions 6. This is
premised on the fact that several schools of thought exist through which various
definitions were proffered. For instance, we have the Historical School 7, the
Positivist School8 the Sociological School9, American Realist10 and the Natural
Law School11 and so on.

3
See Malemi E (2009) The Nigerian Legal System Text and Cases 3rd ed, Princeton Publishers, Lagos
P. 2
4
Lawal O.A O/Level Economics for West Africa.
5
See Agenda T A (1986) Nigeria in Search of Social Justice Through Law. Occasional Paper 1 NIALS
Lagos, P.I
6
See Okunniga. A.A O. (1984) Transplants and Mongrels and the Law: The Nigerian Experiment.
Inaugural Lecturer Series 62.University of Ife Press, Ile-Ife P 1.
7
This school of thought opined that law is better understood by examining the historical
antecedent of the polity concerned. This school has Von Savigny as its protagonist See
Dias R.M.W (1976). Jurisprudence. 4th ed. Butterworths , London. Pp 513-532.
8
This school has Hans kelsen as its protagonist and based his idea of law an norms; are
giving validity and existence to other norms until the grundnorm is reached. See Kelsen H (1961)
General Theory of Law and State; New York P. 111.
9
This school of thought tries to study systematically what the different people involved in the legal
system actually do and to discover the real influences on their behaviour. See Elegido J M (1997)
Jurisprudence. Spectrum Law Publishing Co, Ibadan P 4.
10
This school sees law as “Social engineering” used to satisfy as many interests as
possible with the least friction and waste. The major protagonist not this school was Dean
Roscoe Pound (1870 – 1964). See Elegido, Op cit. P 94.
11
See generally Ijalaye D. A. (1993) “Natural Law and the Nigerian Experience” in Elias T.O and
Jegede M.I (eds) Nigeria Essays in Jurisprudence. M I J Publishers Ltd, Lagos. P 25.

2
 I must admit that I am in line with the idea of law as propounded by the
positivist school of thought to which John Austin was a major protagonist. The
positivist defines law as a command of the sovereign (political supervisor and
uncommanded commander) to a political inferior to act or forbear to act and in
case of disobedience he is visited with an evil called sanction 12. The view of Austin
is however not free from criticism because of the now known problems associated
with an “uncommanded commander”.
Whichever way law is defined, its importance in any society cannot be
overemphasized. For life to be meaningful in any polity it must be regulated by
law if not, then life in a lawless society is likely to be tyrannical, nasty, brutish
and short. Premised on the above, a society which lacks a minimal code would
certainly be a suicide club13.
Describing the impossibility of any meaningful society to exist without
law, one learned writer posited thus:
Fiction provides us with numerous examples of utopian societies
where congruence of norm and ideal is such that there is perfect
harmony and no need for law or lawyers to emerge. History teaches
us the unhappy truth that no such Society has ever existed. In all
societies, socialization is an unequal process, there is always
deviance and conflict, and law can be seen to emerge as a norm –
asserting authority with the coercive power to sanction those guilty
of violating the norm. It is difficult to escape the fact that law is
necessary. If a society should ever come about where it is not, it may
be predicted with certainty that it will be a society different from
anything we have known.14
Apart from the above, Law has the following roles to perform in any
polity15.
1. It ensures that persons, bodies and society coexist orderly and peacefully.
2. It specifies the structure, framework and the order for all aspects of life
and society.
3. It is a means of resolving and settling disputes peacefully.
4. It is an instrument of political, economic and social change and
stability.

12
See Generally Hart HLA (1961) The Concept of Law; Bentham J (1970) Of Laws in General. Hart
HLA (ed) P. 18.
13
See Hart. HLA Supra at Pp. 189-195.
14
Freeman (1974) The Legal Structure. Longman P 1 quoted by Jegede M.I. (1993) What’s
wrong with the Law. NIALS Annual Lecture Series 12. NIALS Publisher, Lagos P. 5
15
See Malemi E (2009) Supra at Pp 8 – 10

3
5. Law grants remedies and justice to those who have been wronged just
to mention a few.
For this law to be meaningful in any society, its making, execution and
interpretation were placed in different organs viz; the legislature, the executive
and the judiciary. This is otherwise known as the doctrine of separation of power.
The function of the legislature is the making of laws; the executive is saddled with
the responsibility of administering and application of the laws so passed by the
legislature while it is the duty of the judiciary to interprete the laws made and
applied by the legislature and the executive respectively. In shorts the duty of the
judiciary is jus dicere et non jus dare. That is to declare the law and not to make
it 16 .
This legal position was led credence to in part by Hon. justice Obaseki who
posited that:
By the constitution, the role of the judges is not that of law-makers,
yet their role and function as interpreters of laws… has earned
them the appellation, the guardian of the constitution and the laws
as well as that of the Chief Law-Maker17
However, the second part of the above quotation has shown that apart
from the fact that judges’ primary role is the interpretation of law, they are also
involved in law-making which was considered an aberration as this is outside the
ambit of their legal duty.
For instance, where a matter comes up before a court, and the court could
not immediately find a principle of law that is applicable to the case in court, the
court would not ask the litigants to go back home, for the matter to be referred to
the legislature to pass the necessary law and thereafter come back to court to re
litigate their matter. Rather, the court would find and apply appropriate law to
cater for the situation or create a new law to take care of the problem.
For example until 1932, if there was no direct link between the
manufacturer and the ultimate consumer, no cause of action could be sustained

16
See Bairamian JSC in Okumagba V Egbe (1965) 1 All NLR 62, Awogu JCA in Ogbonna V The
President of Nigeria and 14 Ors (1990) 4 NWLR (pt 142) P. 130 Onalaja JCA NEPA V. Atukpor
(2000) FWLR (Pt 20) p 622 at 639; Atolagbe V. Awuni (1997) 9 NWLR 536 and PDP V. INEC (2001)
FWLR (Pt 31) P 3735 at 2829
17
Obaseki A.O (1990) Judicial Lectures; Continuing Education for the judiciary.MIJ
Publishers, Lagos P 1.

4
in negligence18. When the case of Donoghue V. Stevenson19 came before the
House of Lords, a different tune came from Lord Akin when he posited thus:
The rule that you are to have your neighbour becomes in law that
you must not injure your neighbour and the lawyer’s question:
Who is my neighbour receives a restricted reply… The answer
seems to be … persons who are so closely and directly affected by
my act that I ought reasonably to have them in contemplation as
being so affected, when I am directing my minds to the acts or
omissions which are called in question20.

In addition to the above, the strict liability principle was laid down by
Blackburn J in Ryland V Fletcher21 while the corporate personality principle was
laid down in Salomon V. Salomon & Co22. This is just to mention a few.
There are other instances when judges do change the existing position of
the law through a process called judicial activism. For instance by the doctrine of
sovereign immunity in International Law, the position of the law was that a
foreign sovereign cannot be summoned, subpoenaed or make a party against his
will23. For instance in Prins Frederick,24 an armed ship of war belonging to the
king of Netherlands was arrested on a claim for salvage. The court laid down the
principle that all matters extra commercium,… are exempted from all private
rights.
This principle was adopted in plethora of cases 25 until the principle of law
was changed in an in rem matter in the Philippine Admirals Case26 in 1976 and
in an in personam matter in the case of Trendtex Trading Corporation V.
18
See Le Lievre v. Gould (1893) 1 QB 491.See further Fatula O.A. (2009) Jurisfat Fundamentals of Torts.
Jurisfat Publications, Ile-Ife. Pp 62-63.
19
(1932) AC 562
20
Ibid at p 580. Several Nigerian cases follow the principle so laid down in this case. See Osemobor v.
Nigeria Biscuits
21
.(1863), L.R. 3 H.L 330. The rule is that any person who for his own purposes brings on his
land and collects and keeps there anything likely to do mischief if it escapes must keep it in at his
peril. If he does not do so, he is prima facie answerable for all the damage which is the natural
consequence of its escape.
22
Marina Nominees Ltd v. FBIR(1986) 2 NWLR pt. 20 p 45
23
This is based on the principle par in parem non habet imperium (one sovereign cannot
exercise jurisdiction over the other but only after inferiors) or alternatively par in parem non
habet jurisdictionem (legal persons of equal standing cannot have their dispute settled in the
courts of one of them. See Marshall e.g. in The Schooner Exchange and MC Faddon (1812) 7
Craunch P. 46.
24
2 Dod 451.
25
Compania Naviera Vascongado V. S.S Christina (1938) A C 481, The Parlement Belge (1879) 4
P & D 129, Porto Alexandre (1920) P 30.
26
(1976) 1 All E.R 78

5
Central Bank of Nigeria27 Legislation reflecting this position did not come into
being in the US until 1976 28 and in the UK until 1978 29 and globally until 200730.
If the judiciary has not taken the bull by the horn, it would have meant that no
action on sovereign immunity would be entertained until 1976, 1978 or 2007
respectively in those jurisdictions.
From the above, the importance of a “just and virile” judiciary in any
setting must not be compromised. It was this that prompted that erudite and
eminent justice; Lord Alfred Denning (MR) to chronicle that:
It is no use having just laws if they are administered unfairly by
bad judges or corrupt lawyers. A country can put up with laws
that are harsh or unjust so long as they are administered by just
judges who can mitigate their harshness or alleviate their
unfairness31

In Nigeria, Oputa J (as he then was) put this in a different way in the
following manner:
If all Doctors in government service resign their appointments with
governments they can still, as private medical practitioners, save
the dying and attend to the sick in the society. If all Architects and
Engineers employed by governments resign their appointments,
they can still as private professionals plan our towns and cities, and
build our roads and bridges. In either case, there will not be a
complete break-down in the services they rendered to the society….
But if all Justices, judges of all denominations (including customary
court judges, District or area court judges and Khadis) and
Magistrates of all grades resign, since these cannot operate from
their homes as private professionals – as private Magistrates and
private judges-there will surely be a breakdown of law and order
and it is absolutely necessary for the continued peace and progress
of our society that law and order is maintained, as break-down of
law and order will lead to anarchy. It is to prevent this lawful and
dreadful situation that we should do our utmost and strive to the
utmost to give our country a judiciary capable of maintaining law
and order and the peace and progress of our society; a judiciary
that is independent, fearless and courageous… our people should be
able to understand and appreciate the place and role of the judiciary
in our society32.

27
(1977) QB 529 ; (1977) 1 ALL ER 881
28
Foreign Sovereign Immunity Act of 1976 by the United States of America
29
Sovereign Immunities Act of 1978 of the United Kingdom
30
. United Nations Convention on Jurisdiction Immunities of States and their property.
31
. Denning A. Road to Justice.
32
Oputa C A (1976) “Understanding the Place and Role of the Judiciary in our Society” Being a paper
presented at a seminar organized by the Bench and Bar in Port Harcourt.

6
 Administration of justice is entirely the major function of the judiciary and
in doing this, the court is enjoined to ensure that justice is not only done but
manifestly seen to have been done, the assessor being the ordinary member of the
society33.This is better achieved when the principle of fair hearing is adhered to.
The Judiciary: Meaning and scope
Judiciary is defined by the Chambers dictionary34
as relating to judgment, judges or courts of law; branch of
government concerned with the legal system and the
administration of justice; a body of judges, a system of courts.

It is also defined in Bouviers Law Dictionary35 thus:

The system of courts of justice in a country, the department of
Government charged or concerned with the administration of
justice. The judges taken collectively, as the liberties of the people
are secured by a wise and independent judiciary. The term is in
very current use in designating the method of selecting judges in a
state or country. As an adjective of or pertaining to the
Administration of Justice or the Courts.

Black’s Law Dictionary36 Defines the judiciary as

That branch of government invested with the judicial power, the
system of courts in a country, the body of judges, the bench. The
branch of government which is intended to interprete, contrive
and apply the law. Adjective–pertaining or relating to the courts
of Justice, to the judicial department of Government or to the
administration of justice.

Within the Nigerian context therefore, the judiciary is that branch of

Government Department that is saddled with the responsibility of administering
justice37. Better put, when we talk of the judiciary, we basically have in mind the
judicial officers. i.e. the justices of the Supreme Court, Court of Appeal, the
judges at the Federal and State High Courts, Judges of the Federal Capital
Territory, the Khadis and judges of the Sharia Courts of Appeal and Customary

33
Per Lord Hewart C J in R V. Sussex Justices ex parte McCarthy (1924) IKB 256 at 259; R.V
Camborne Justices ex parte Pearce (1955) 1 Q B 41 at 51
34
Brooks I et al (eds) (2006) The Chambers Dictionary 10th ed. Chamber, Harrap Publishers
Ltd. Edinburgh P 807-808.
35
Bouvier Law Dictionary. 3rd ed .
36
Garner B A et al (eds) (2004) Black’s Law Dictionary. 8th (ed) West Publishing Company,
USA. P 864.
37
See Onalaja M.O (2008) “The Role of the Judiciary in the Third Republic” In Onalaja M.O (ed)
Commentaries from the Bench. Revised ed. Lifegate Publishing Co Ltd. Ibadan P. 16.

7
Court of Appeal respectively38. There are of course other judicial officers in the
Magistrates Courts and the Customary/District Courts as well as Area Courts.39
Historical Evolution
The judiciary has an ancient history with the appointment of judges dating
back to Moses and recorded in the advice of Jethro, his father-in-law in the book
of Exodus40 in the following manner:
20. Though shalt teach them ordinances and laws and shalt shew them them
the way wherein they must walk and the work they must do.
21. Moreover these shalt provide out of all the people able men of truth hating
covetousness41 and place such over them to be rulers of thousands and
rulers of hundreds, rulers of fifties and rulers of tens.
22. And let them judge the people at all seasons and it shall be that every great
matter they shall bring unto thee but every small matter they shall judge,
so shall it be easier for thyself and they shall bear the burden with thee….
23. So Moses hearkened to the voice of his father-in-law and did all that
he said.
Having appointed the judges, Moses enjoined them on the administration of
justice as it was recorded in Deuteronomy42 as follows:
16 … Listen to the disputes that come up among yours people. Judge every
dispute fairly whether it concerns only your people or involves foreigners
who live among you.
17. Show no partialities in your decisions; judge everyone on the same basis,
no matter who he is. Do not be afraid of anyone, for the decisions you
make come from GOD…

38
See Essien E 92006) “The Judiciary and Democracy in Nigeria: A Case For Independence of the
Judiciary” in Yusuf F.A.O (ed) The Nigeria Judiciary – Perspectives and Profile. FHL
Publishers, Lagos P 2.
39
The Judges of these Courts are not captured in the definition of Judicial officers contained in
Section 318 of the 1999 constitution, whereas they are partners in progress in the wheel of
Administration of Justice in Nigeria.
40
See Holy Bible (1986) Exodus 18-20-24 Authorized King James Version, World Bible
Incorporation, USA P 119. See Further Onalaja M.O. (2008) “Christian Ethics, Judges and
Lawyers in the Administration of Justice” in Onalaja M.O (ed) Commentaries form the Bench
Part II Op cit. P44.
41
This is one of the most important qualities to be put into consideration before elevating
somebody to the prestigious position of a judge.
42
Holy Bible. (1986) Deuteronomy; Chapter 1 V 16-27 op cit. p 282. See Further Onalaja M.O
(2008) “Nigerian Judiciary in the Next Millennium: Some Prognosis” In Onalaja M.O (ed) P
Commentaries form the Bench part III op cit. P 8 at p. 10.

8
 Since the quality of justice and judicial sustenance of democracy thus
depend more on the quality of men who administer the law than on the content
of the law they administer; the appointees must be competent, upright and free to
judge without fear or favour43 . They are not to be unjust or show partiality in
their judgments, and they are not to accept bribes for gifts blind the eyes
even of wise and honest men and cause them to give bring decisions44.
Speaking in support of this, Oputa JSC had this to say:
Money they say is the root of all evils. The Bench is definitely not the
place to make money. A corrupt judge is thus the greatest vermin, the
greatest curse ever to afflict any nation. The passing away of a great
Advocate does not pose such public danger as the appearance of a
corrupt and/or weak judge on the bench for in the latter instance the
public interest is bound to suffer, and justice interest is thus
depreciated and mocked and debased. It is far better to have an
intellectual average but honest judge than a legal genius who is a
rogue45
Continuing, the learned justice added that:
nothing is as hateful as renal justice, justice that is auctioned,
justice that goes to the highest bidder. Our people are not fools.
They are not blind. No. They see and know. They know all the
judges who are corrupt. That knowledge is good but it is still better
for them to summon up courage to expose these bad eggs. This will
leave the country with an honest and trustworthy judiciary. It is
this type of judiciary that can then confidently claim and assert its
independence. Every care and attention should therefore be taken
and exercised in making appointments to the bench - any bench.
From the lowest to the highest bench of the land46.
In essence, whosoever wishes to take bench appointment at any level – whether
lower or higher bench must search himself and if he finds out that he may not be
able to resist the temptation of being an “incorruptible judge”, he should
disqualify himself from going through the rigour of examination and interview
before being so appointed. It is better not to be so elevated rather than to be
elevated and fall from that pinnacle of leadership and family name that was built
in several years will be dragged into the mud in matter of seconds. A word they
say is enough for the wise.
Independence of the judiciary

43
Essien E Supra P. 3
44
See Deuteronomy 16 verse 19. Holy Bible. (1986) Op cit P. 282.
45
Oputa C (1993) ,“The Independence of the Judiciary in a Democratic Society – Its Needs, its Positive
and Negative Aspects’. In Elias T.O and Jegede M I (eds) Nigerian Essays in Jurisprudence. MIJ
Publishers Limited, Lagos P 222 at 231.
46
Ibid.

9
 Rule of law as a legal principle became more popularized after the treaties
postulated by A. V. Dicey47. In summation, Dicey’s postulation centres on the
absence of arbitrary power but promoting the supremacy of the law, equality
before the law and the independence of the judiciary 48. For the above stated
principles to be meaningful, realistic and achievable in any polity, its judiciary
must be fully independent49.
Independent of the judiciary means so many things to different persons.
For instance, Sogunle opined that:
Independence of the judiciary implies that judges, in the exercise of
their judicial functions are not subject to control by the executive,
or even the legislature, the aim being to ensure that judges
dispense justice impartially as between the government and the
subjects50.
Essien not differing from Sogunle sees independence of judiciary from this
perspective.
Basically, it (Independence of judiciary) simply means that the
judiciary should not be dependent on or controlled by the legislature
or/and the executive so that the judiciary will have freedom of
action, freedom of thought, unfettered by any unseen hands51.
I am of the view that independence of the judiciary entails that the
judiciary should be able to dispense justice without fear of favour, be free from
external influence and control from giving judgment with the fear of God,
without being remotely controlled by Government that appointed him, his wife
who is his jewel of inestimable value, from his children who he cannot resist, his
friends who has been his childhood friend, his “godfathers” whose request he
cannot turn down and finally “money” when is the root of all evils. I must say at
this juncture that the list is not closed. It must be stated that any of the above
mentioned subject is capable of influencing the mind of a judge in the

47
The idea of the rule of law predated A. V. Dicey. In fact jurists like Aristotle, Socrates, and
Bracton just to mention a few had at one time or the other discussed this idea but was only
popularized by A. V. Dicey. For a detailed discussion on this see Oyewo A.T (1997) Administrative
Law in Nigeria. Jator publishing Co. Ibadan, p 43, Malemi E (2008) Administrative Law.3rd ed
Princeton Publishing Co, Lagos. Pp 80-112.
48
.See Akinbiyi S (2006) “The Operationalization of the Rule of Law” In Yusuf FAO (ed) The
Nigerian Judiciary – Perspectives and profile . supra, P. 441.
49
See generally Akande J (1999) “The Rule of Law and the Independence of the judiciary in
Nigeria” in Akande J Miscellany at Law and Gender Relation. MIJ professional Publishers
Limited, Lagos. P 27.
50
Sogunle A O (2006) “The Supreme Court in Nigeria (1960 – 2004): An Assessment” In Yusuf F.
A O. (ed) The Nigerian Judiciary –Perspectives and Profile. supra P. 70 at 81.
51
Essien .E Supra at P 5.

10
dispensation of justice and where it does; such a judge is not independent in the
dispensation of justice.
Independence of judiciary does not entail that that the judge can sit at any
time he likes, bully the member of the bar at will, decide a case using his own
manufactured law (that is not existing in any legal statute) and does not mean
that he has unlimited powers. In fact he should give judgment according to law52.
Judicial independence cannot exist where the appointment of the
candidate is tainted with fraud or illegality or where merit has given way to
mediocrity in terms of appointment. If a candidate that does not merit the
appointment into the exalted position of the bench is appointed, such as judge
has mortgaged his conscience to the government that appointed him and such a
judge will find it difficult to decide a case against the power that made him.
Therefore, it is advisable that any person who aspires to come to the bench
should rely on his erudition, industry and reputation for honesty.
The United Nations Congress on the prevention of crime and treatment of
the offenders adapted the underlisted as some of the basic principles on the
independence of the judiciary. They are:
1. It is the duty of the government to respect the independence of the
judiciary.
2. It is the duty of the judiciary to decide mattes impartially.
3. judges must not be subject to or accept
(a) Restrictions
(b) Improper influence
(c) Inducements
(d) Pressures
(e) Threats or interference of any kind with the judicial function.
4. Judges have the exclusive authority to decide all issues that come
before them.
5. Judges should be properly trained and selected without any
discrimination.
6. The appointment of judges should be guaranteed up to fixed retirement
age, or the end of their term of office.

52
See Oputa JSC (1993) op cit.

11
 7. Judges may only be removed for incapacity, or behaviour that makes
them unfit to discharge their duty53.
Factors that affect the independence of judiciary in Nigeria
The principle of independence of the judiciary is one of the legacies
bestowed on Nigeria by Britain – her colonial master 54. Upon her independence,
in 1960 the Constitutional provision and protection entrenched became part of
our law. The area where constitutional provisions are provided to safeguard the
independence of the judiciary will be discussed below and whether those
provisions are adequate or not is a different ball game.
(a) Appointment
The mode of appointment of judicial officers has a serious implication for
the independence of the judiciary. The 1999 constitution which is an
improvement on the 1979 constitution made some remarkable improvements on
the mode of appointment of judicial officers. Under the 1999 constitution, the
National Judicial Council is responsible for recommending candidates for
appointment to the higher bench55 . The Chief Justice of the Federation, Justice
of the Supreme Court, President of the court of Appeal and the Chief Judge of the
Federal High Court are appointed by the president from a list submitted to it by
the National Judicial Council, subject to confirmation by the Senate 56. In case of
State Judicial Officers, the Governor makes the appointment, on the
recommendation of the National Judicial Council and subject to the confirmation
of the State House of Assembly in the case of the Chief Judge. 57 So also for the

53
See Alagbe K (2006) “The Role of an Independent judiciary in an Emerging Democracy” in Yusuf
F.A.O (ed) The Nigerian Judiciary – Perspectives and Profile; Supra P. 158 at 162
54
Before Nigeria assumed her present name, she was “conquered” by Britain in 1862 when the
then Oba of Lagos; King Docemo Signed a treaty of Cession with the Queen of England thereby
transferring her territory to her. Upon assumption of administration, the concept of common law,
doctrine of equity and statutes of general application was introduced by Supreme Court Ordinary
1863. After the amalgamation of 1914 of the Southern protectorate and the Northern protectorate
by Lord Luggard and series of Constitutional developments in 1922, 1946, 1951 and 1954, the
country became Independent in 1960 and given a Republican status in 1963. See Tobi. N (1996)
Sources of Nigerian Law, MIJ Publishers, Lagos p 59.See also Babatunde I.O (2009) “English
Jurisprudence and African Law: Need to Revisit R v. Udo Aka Eka Ebong”1 OOULJ p. 201.
55
All the judges listed in section 318(1) of the constitution.
56
Sections 231, 238 and 250 of the constitution
57
Section 271

12
Guard Khadi of the Sharia Court of Appeal, 58 and the President of the Customary
Court of Appeal59.
This development as reiterated earlier is an improvement on the 1979
constitution which allowed the president to appoint the Chief Justice of the
Federation without recourse to the Federal Judicial Service Commission. Under
the aforesaid 1979 constitution, the president could appoint his crony thereby
posing a serious threat to the independence of the judiciary. Though under the
1999 constitution, there is a marked departure from that position that does not
completely eradicate the politicization of the appointment of judicial officers-
which may thus compromise their independence.
A judicial officer lamented that ‘the appointment of judges at both State
and Federal levels has in some cases been turned into a geo-political affair which
brings all sorts of traditional rulers, chairman of town unions, leaders of thought
or other social formations into the fray 60. This is possibly to fulfill the
requirement of Federal Character61. As a result, many of these judges owe their
appointment to these non-legal geopolitical cleavages rather than to merit or
quality62. Their allegiance is neither to law nor to justice, let alone to democracy.
It was suggested that the duty of the Executive in the appointment scheme
should be minimal or perhaps limited to the swearing in ceremony. 63 The bulk of
the appointment process should be handled by the National Judicial Council. As
laudable as this suggestion is, this process is capable of being abused because of
the “Nigerian factor” will always come to play.
It was equally suggested64 that positions into the office of the Chief Justice
of Nigeria, President of the Court of Appeal, State Chief Judges, Chief Judges of
the Federal High Court should be by election 65. The question that readily comes
58
Section 276
59
Section 281
60
Umezurike A I (2000) “An Incorruptible Judiciary as an Accelerant to Eradication of
Corruption in Nigeria” quoted by Essien supra
61
Section 14(3) of the 1999 Constitution.
62
Umezurike; Loc cit.
63
See Oragbon S. I ( 2006) “Mode of Selection of Judges Prone to Abuse” in Yusuf F.A.O (ed) The
Nigerian Judiciary – Perspectives and Profile, Supra P. 188 at P 192.
64
Ibid at P 200
These were part of the proposal made by the National Assembly joint Constitutional Review
65

Committee (sub- committee on judiciary) to form what should be included in the proposed
amendment to the 1999 Constitution. Could these legislators be thinking that since the President

13
to mind is who will constitute the electorate? Would this further guarantee their
independence? Assuming that the electorate for the office of the Chief Justice of
the Federation is to be carried out by Supreme Court Justices, there would still be
the need for rigorous electioneering campaign and election to be held, there is no
how “money politics” would not be introduced. The result is that the best
candidate may not emerge, the principle of Federal Character will be defeated,
popular election will not lead to a highly qualified judiciary and consequently the
independence of the judiciary will be compromised.
2. Security of Tenure
The security of tenure is an indispensable index for the independence of
the judiciary. Classical common law practice is that English judges serve durante
bene placito – i.e. at the pleasure of the crown. This practice can in no way
guarantee the independence of the judiciary because he who pays the piper
dictates the tune. Contemporary practice however is that English judges’ serve
quanmdiu se bene gesserint- i.e. during good behaviour. On attainment of
independence by Nigeria, the common law tradition regarding the tenure of
judicial officers became our inheritance as a former colony of Britain. Thus a
judge could only be removed if he was unable to discharge the functions of his
office for misbehaviour.
The 1999 Constitution66 of the Federal Republic of Nigeria deals with the
removal of judicial officers. The power of removal of judicial officers was shared
by the legislature and the executive respectively. It is however submitted that if
judges are to be hired and fired at will by the legislature and the executive there is
no way this will not undermine the independence of the judiciary.
Under the constitution, there are two types of procedure for removal.
Firstly, the Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge
of the Federal High Court, Chief Judge of the High Court of the Federal Capital
territory, Abuja and President Customary Court of Appeal of the Federal Capital
territory, Abuja shall be removed by the President acting on an address
supported by two-thirds majority of the senate67, the Chief judge of a State, Grand

came to power through election by Nigerians, the President and speakers of the National Assembly
and that of the various States Houses of Assembly came by way of election (through among
themselves) members of the judiciary should now come to office through election. Well let us wait and
see.
66
See Section 292 (1)
67
See Section 292 (1) (a) (1)

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Kadi of a Sharia Court of Appeal or president of a Customary Court of Appeal of a
State by the Governor Acting on an address supported by two-third majority of
the House of Assembly of the State, praying that he be so removed 68 . The second
category are those whose appointments are removable by the President or the
Governor acting on the recommendation of the National Judicial Council 69. It
must be stated here that Magistrates, Area and Upper Area court Judges,
Presidents and member of the Customary and Sharia Courts are not mentioned 70.
It could be rightly assumed that the security of their tenure is not protected by
the constitution; yet they all participate in the administration of justice. It could
equally be rightly assumed that their employment is not tainted with statutory
flavour71. The constitution should be amended to cater for this anomaly.
In the same vein, it is submitted that in order not to politicize the
judiciary, the senate and the Houses of Assembly should be divested in the
appointment and removal of judges. The tyranny of judges’ removal rears its
head in the issue of Anya v. A G Borno72 In 1982 the Borno State House of
Assembly commenced impeachment procedure against the Chief Judge, who had
fallen out of grace with both the legislature and the executive because of his
judgments against the State Government. The situation was saved by the Court of
Appeal which held that unless misconduct was established before a Tribunal or
Court, the House of Assembly could not validly pass a resolution seeking for his
removal.
To ensure adequate security of tenure of judicial offices, the class
distinction of one set of judges’ removal by the president or government upon an

68
Section 292 (1) (a) (ii).
69
Judges that fall within thus category are all those not specifically mentioned in sections 292 (1) (a)
(i) and (ii) of the constitution
70
As iterated elsewhere in this paper, all the judicial officers not specifically mentioned in section
292 have no.
71
Appointment that is tainted with statutory flavour is that which is not only regulated by the
common law principle of law of contract, the determination of such contract of employment has
to be carried out in line with the provision of the statutes setting it up. Where the provision of
such statute is not religiously followed in the determination of such contract of employment, it’s
severance will be declared null void and unconstitutional. See Olaniyan V Unilag (1985) 2
NWLR,pt.9 p 599;UNTHMB v. Nnoli (1992) 6 NWLR pt. 250 p 752, Federal Civil Service
Commission V. Laoye (1989) 2 NWLR (Pt 106) P. 652; See also Nwazuoke .A.N (2001)
Introduction to Nigerian Labour Law. Lucky Udoni Publications, Ijebu Ode; Erugo Sam(2007)
“Security of Employment in Nigeria: A Case for Statutory Intervention.” Vol. 1 No 1 Labour Law
Rewiew. P 57.
72
Suit No FCA/K/141/82

15
address by the 2/3 majority of senate or House of Assembly and the others being
removed upon the recommendation of the National Judicial Council be abolished
and rather all of them should be allowed to pass through the same procedure for
removal that is, removal by the president our Government upon recommendation
of the National Judicial Institute.
3. Remuneration and Improved Working Condition
Rivers State new High Court Complex, in Port Harcourt is good to behold.
It is an epitome of how a good Court Complex should be It is conducive for
adjudication and highly sophisticated. For an independence judiciary to be
sustained, the remuneration and improved working condition must be superb. It
is reasoned that generous conditions of service, coupled with good and attractive
salaries and allowances will attract the right caliber of men to the judiciary.
Thank God, the era of when Nigerian judges (especially Supreme Court Justices)
earned N17,500 per annual is gone73.
Now, the salaries and allowances of judges in the higher bench are better.
Although their salaries and allowances are now charged directly from the
consolidated revenue fund to the National Judicial Council, it appears that the
funds available are in sufficient. To augment for this, State Judiciaries are being
funded by both the State and Federal Government. Some states have had to
provide suitable vehicles for their judges while making available also other
additional stipends beyond the meager sum under the approved salary scale74.
The situation just discussed is unfortunate as it is capable of undermining
the independence of the judiciary by the executive. The executive may hide under
financial canopy to strangulate the judiciary that fails to give judgment in its
favour or that is too antagonistic of its policies.
It was equally suggested and I agree with it that judge who knows that the
provision for his financial support will lapse once he leaves office may have his
independence affected against his will 75. This is why some of them are corrupt
apparently in a bid to save for a rainy day. The constitutional provision that
prohibits a judicial officer from appearing as a counsel before any court once he is

73
See Oputa C (1993) op cit. at P. 232.
74
See Ibidapo – Obe A (2006) “Judicial Sovereignty under Nigeria Constitution since 1960” In
Yusuf F.A.O (ed) The Nigerian Judiciary – Perspectives and Profile Supra P 21 at 62.
75
See Essieu E; Op cit P. 12

16
out of office76 does not help the matter. To worsen the matter, the way the
pension and gratuity of judicial officers are being delayed also contributes to the
factors that are capable of influencing judicial officers when dispensing justice.
Apart from the above, the disparity in remuneration and in social standing

between judges of the lower bench and that of the higher bench on one hand and

that of the High Court and that of the appellate Courts on the other hand has had

an unsavoury effect of making some of the affected officers to be conscious of

promotion and be more executive-minded than the executive itself. 77 It is

suggested that the remuneration of judges at the lower bench should be

tremendously improved and even if there will be disparity between their salaries

and allowances and those of the higher bench, it should be minimal and if this is

done the “Craze” for Judicial promotion /elevation may be drastically reduced.

General Appraisal of the Independence of Judiciary in Nigeria

Nigeria, starting from the time it was colonized, has largely been observing
the principle of independence of Judiciary. The New Delhi Declaration of 1959
on the independence of the judiciary was still very fresh on the country’s
attainment of independence, the good, the bad and the ugly in terms of judicial
administration were inherited from the colonial masters
Since independence and as enshrined in the 1960 constitution, idea of an
independent judiciary has been part of its history in terms of its entrenchment
and implementation, even though with some limitations. Some of our justices are
fearless that cases were decided irrespective of whose ox is gored. There are still
people like Coke78 in this country who are courageous and fearless. It must be
realized that in every twelve disciple, there may be a Judas Iscariot. Some judges
are so corrupt that they have no minds of their own and even have no conscience
at all. To them, justice is on cash and carry basis but some of those judges have
76
Section 292 (2).
77
Akande J, Op cit. P 37
78
Coke , the Chief Justice of the Common Pleas, resisted the interference of the Stuart Kings with their
perverted claim to the divine right of Kings to govern even wrongly and to be accountable to no one, and what
was more, to insist that judges did what pleased the king and not otherwise. Coke opposed this interference
with Judicial independence at great cost to himself. He was ultimately sent to the Tower of London where he
was executed for defying the king and for insisting that the independence of judges far outweigh the wishes of
the king and the exigencies of royal power. See Oputa C.A op cit, p 233

17
been shown the way out. Some of the Judges do suffer from the hands of the
executive for some of their official functions but which are not palatable to them.
Under the Military however, the promulgation of Decrees ousting the
jurisdiction of the court was considered inimical to the independence of the
Judiciary system. Initially, the court demonstrated courage by resting to give
effect to such clauses,79 but later had to surrender to the overbearing influence of
the military.80
Salami Issue
Several comments have been elicited by the public over the imbroglio between
the Chief Justice Nigeria –Justice Katsina-Alu and the suspended President of
the Court of Appeal –Justice Isa Salami. Although, I have been tempted to make
my comments on this issue but I have warned myself that “it is unsafe to
comment on a matter that is already before the court.” The issue is subjudice and
I rest my case.
Conclusion
As rightly observed, the Judiciary is the last hope of common man, the only hope
of government and concepts such as the rule of law,81 separation of power, just to
mention a few. Modern democratic society will collapse where the confidence is
lost in the judiciary thereby dashing the hope of the common man. Therefore the
need for an independent judiciary is an indispensable aspect of good governance
in the administration of justice.
This paper has successfully shown that government on its part and
particularly in the 1999 Constitution made provision for at least in principle and
partly in practice for the sustenance of the judicial independence, certain factors,
intrinsic and extrinsic, are responsible for the diminished independent judiciary
that we are witnessing in Nigeria today
No doubt, appointment, promotion and removal of justice officers are in
the hands of the legislature and the executive. Independence of the judiciary may
be predicated in part on the manner and nature of their appointment and the

79
See Lakanmi v A.G (West) (1971) I UILR 201
80
The Federal Military Government nullified the judgment by the promulgation of another Decree meant
specially to attack the judgment of the court.
81
See Daudu J.B (2011)” The Independence of the Judiciary in the Light of Emerging Socio-Political and
Security Challenges.” Being a Keynote address by the president of NBA delivered in Maiduguri Borno State on
15th April 2011.

18
security of tenure of its members.82It is for the members of the judiciary to resist
any attempt that will undermine their integrity and independence especially from
government,
Regrettably, one of the major impediments to the independence of the
Judiciary in Nigerian is corruption. It was admitted by the Nigerian CJN that all
was not well with Nigerian Judiciary as several petitions were being received by
the National Judicial Council against Judges.83This is too bad. Corruption has
eaten deep into our system and it has permeated almost every part of our system
including the judiciary. Empirical evidence has shown that judgment is
“purchasable” and in some instance made available to the highest bidder. This
situation does not portend the corrupt judicial officer in good light but the other
way round. It should be remembered that one day, we shall account for our
stewardship on this earth and when called upon to do so, what shall we say?
It is not compulsory that one should take bench appointment if you know
that you cannot resist the temptation of corruption. It is expected that those
saddled with the responsibility of recruiting to the higher bench should handle
the exercise painstakingly. The best guarantee against removal is to make sure
that the wrong persons are not appointed only to complain later if such a corrupt
official behaves true to type.
Like Thomas Arnold said84 that there cannot be a satisfactory definition of
law to end all discussions on nature of law, so also there cannot be a discussion
on the Independence of the Judiciary that will address fully all the incidences
thereof, therefore, the discussion continues.

82
See Ajomo M.A (1993)” Human Rights and the Nigerian Judiciary” in Elias T.O and Jegede M.L (eds)
Nigerian Essays in Jurisprudence. op cit p 350
83
See Oyesina T (2011) “Petitions Flood NJC Against Judges –CJN” Nigerian Tribune Tuesday 20
September .p 1
84
See Okuniga A A O(1984) op cit. p 1.

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