03 Jan



This is the process by which rights and duties are determined. Baron de Montesque in Spirit of the Law looks at separation of power. A.V. Dicey advocates for an impartial and independent Judiciary. Section 4, 5 and 6 of the 1999 Constitution separates power among the Legislature (lawmaker), Executive (law executor) and Judiciary (law interpreter) respectively.

The vending machine theory sees Judges as priests in the temple of justice. The judicial process being a ritual. Blackstone remarked that the judges are “living oracles of the law.” The orders of the court must be obeyed. Lord Denning In Gouriet V Union of Post Office Workers remarked: “be you ever so high, yet the law is above you”. This is true as in Marbury V Madison, where President Nixon was ordered to submit a tape and he obeyed the court. Once the court has decided on a case, that is the end of the matter. This is couched in the doctrine of “Res Judicata”- Makun V Federal University of Technology.

Courts try to justify decisions through judicial reasoning. Judicial precedence and Hierarchy of courts facilitates the efficacy of the courts. Judicial precedence compels a lower court to follow the earlier decision of a higher court in a case similar to the present one. A judge that wishes to deviate can distinguish the present case from the earlier case. A dissatisfied litigant can appeal to a higher court. The court sometimes employ legal reasoning which entails applying the law to facts.

Nigeria (and most other common law countries) adopts an adversarial system where an impartial judge listens to the parties and is prevented from descending into the arena. Unlike the inquisitorial system (which most civil law countries adopt) Which allows the court to descend into the arena. In Civil law countries, less attention is placed on judicial precedence. More attention placed on the Civil Codes and expert opinion.


Justiciability involves filtering matters/action/cases. In essence, not all cases can go to the court. Lon Fuller argues that complex disputes should go to arbitration and special tribunals. Example election petitions, labour matters and so on. He posits that only “legal” matters should go to the court.

: Although Section 6(6)B of the Constitution provides for the wide powers of the court to look into issues and Section 46 enables a plaintiff to approach the court to determine his right… in certain instances, the court may not be able to (or would refuse to) hear a case. They include:

  • Non-Justiciability: there are certain rights that are non-justiciable. E.g. Chapter 2 of the 1999 Constitution. Although in SERAP V The Federal Government of Nigeria, the FGN was sued in the international court to provide access to education and learning for the citizens. It argued that such is contained in Chapter 2 which is non-justiciable. The international court held that it was the duty of the government to provide education. Notwithstanding that it is non-justiciable.
  • Locus Standi: this means interest to sue. Abraham Adesanya V The President. In Gani Fawehinmi V The First Lady, Gani Fawehinmi argued in court that there was no constitutional post for the first Lady to carry out certain projects. F.R.A Williams said he was a mere meddlesome interloper. A busybody putting his mouth in a matter that does not affect/concern him. In Olawoyin V G Northern Nigeria, the plaintiff was suing against Part 3 of the Children and Young Persons Law (which says that juveniles should not contest in political affairs) the court held that he was not a juvenile nor was he contesting in a political affair so how does the law affect him? Although in Fawehinmi V Akilu, the court noted that a man should be allowed to help his neighbour friend to plead his cause.
  • Jurisdiction: the court must have the ability to hear the case, it must be properly constituted and must also have jurisdiction in terms of territory and procedure.
  • Frivolity: There must be a substantial issue to be tried. Academic and vexatious issues would not be entertained (e.g. Court please tell Mr A that the square root of 4 is 2, Court please tell us the composition of gas and petrol and which one is better for our cars, Court Mr A did not greet me even after I paid for his child’s school fees) The court would usually strike out such frivolous cases.
  • Political Question: In Badejo V Minister of Education, the court held that it would not be involved in political questions (questions that are to be resolved politically. E.g. President Buhari must make me minister of petroleum, Unilag must admit my son, etc).
  • The Issue of Ripeness: A speculative or imaginary issue would not be tried by the court. However, where there is actual and imminent threat of danger and irreparable damage would be done if the court doesn’t interfere, the court would exercise its equitable jurisdiction and grant an injunction-American Cynamid V Ethicon, Buhari V Obeya Memoraial Hospital V AG Fed, Kotoye V CBN.
  • Orders that are in vain: the court would not make orders that cannot be enforced or orders that requires its constant supervision-Conway V Rimmer, Duncan V Cammel Laird.
  • Lapse of Time: A plaintiff must act in good time. Else, his rights may be caught by limitation statutes. There are various Limitation Laws of the States. Note however that there is no limitation in cases of fraud-Akpan Awo V Cookey Gam. Section 4 Limitation Act, Allcard V


The question here is: should the courts merely interpret or can they also make laws?

Bentham insisted that the common law was judge made law, therefore there is no argument that there is judicial legislation. In Shaw V DPP the court noted that gaps would always remain in the law and it is left for the court to fill. Article 1 of the Swiss Civil Code gives the court power to make laws. Lord Denning once remarked: “only timorous (timid) judges should be afraid of filling the gap when the legislature leaves a gap in law making”. Frankforter said that a judge applies his view of meaning to the interpretation of decision. Similarly, Austin recognised that judicial law-making is inevitable. Hart also remarked that “judges fill the gaps left by rules using their discretion”. However some writers like Dworkin believes that judges should be constrained within the limits of the law.

When the wording of the statute is clear and obvious, then the work of the court is simple, it just interprets. However, when the wordings are ambiguous the court is faced with the task of discerning the intention of the legislature/drafters of the law. See for example Awolowo V Shagari. The 1979 constitution required victory in 2/3rd states. Nigeria consisted of 19 States then. The question was; Should 2/3rd mean 12 or 13 States?

5.2.1 In interpreting, the court may apply the following modes of interpretation/Construction:

  • Strict interpretation: here the judges are slaves to the statute. They just interpret it based on the words. Justice Sowemimo once remarked “my hands are tied” in the case of treason against Awolowo. Strict interpretation leaves no room for intendment-Cape Brandy Syndicate V IRC.
  • Liberal/purposive: the courts here try to give meaning to the provision… iron out the rough edges and try to discern the spirit of the law. In Shell PDCN Ltd V FBIR, the court invoked the doctrine of equity and public policy to allow certain expenditure (on scholarship and social responsibility) which were ordinarily not allowed by the Petroleum Profits Tax Act. See also Phoenix Motors Ltd V National Prudent Funds Management Board.
  • Mischief Rule: The court tries to look at the malady which the particular law sought to curb/prevent. Lord Denning is a good example of a judge that has always discovered the mischief which a law sought to curb/prevent. His ingenuity was displayed in Trendtex V Central Bank of Nigeria. Also Shaw V In Mobil Oil Nigeria Limited V Federal Board of Inland Revenue, the court (in interpreting Section 30 CAMA) advocated “The Mischief Rule” where it noted that companies have become more rigorous in their tax avoidance techniques. Noting that the interpretation of the court should seek to remedy the ill which the provision sought to curb/remedy.

In addition to using rules of interpretation, the courts also look at intrinsic (the head note, preamble, interpretation Section of the statute, and so on) and extrinsic evidence (books, dictionary, expert evidence)

The question in jurisprudence is; How far can we allow the courts to go?

Kayode J.S.C in Ojukwu V Governor of Lagos State decried executive lawlessness and the need for the law to set them straight. We shall look at the various arguments and decide how far.

5.2.2 Arguments against Judicial Discretion and law making.

  1. Against the principle of Separation of power: that law is better made by legislative bodies since it is their function. The judiciary should interpret. Lord Simmonds in Magar and Sir Mellons Rural D.C V New Port Corporation noted that “if a gap is discovered, the remedy lies in an amending Act”. This phrase is true in relation to taxation. Similarly, in Rectif V Rectif, the court maintained that judges expanding the law may go against the principle of separation of power.
  2. Abuse of power: With great discretion, comes the high propensity to abuse. Lord Atkin has noted that power tends to corrupt and absolute power corrupts absolutely. Furthermore, courts may become partial, corrupt and politically partisan.
  3. Uncertainty: there is a tendency for the law to vary based on each judge’s discretion. In fact, Lord Eldon in Schedden V Goodrich remarked that it is better for the law to be uncertain than for every judge to speculate upon improvements. There could be great disparities in the decision reached by different judges when trying similar cases. E.g. In sentencing.
  4. Bias: Judges, being humans can be swayed by bias when exercising discretion and judicial law making.
  5. Limited power of law making: as noted by Coledrige J in Pollock V Pickering that the rule making power of the court is limited. E.g. courts cannot create bodies like ICPC, EFCC, CBN, ICAN, and so on to execute the law or rules it made.

Arguments in Favour of Judicial Discretion and legislation.

  1. Rules seldom envisage all possible circumstances of human conduct. In fact, Hart once remarked that “there is a limit inherent in the nature of language”. Therefore, the court would be required to fill in the gaps where necessary-Shaw V DPP.
  2. Judges are meant to temper justice with mercy even if it means exercising a reasonable amount of discretion or rule making.
  3. The Legislative process is time consuming and too formal. Therefore, it cannot meet up to the changing needs of the society. If judges cannot reform the law, then they are of no use.
  4. If it is paining the legislature, they should pass a statute to overrule or amend the decision. This has been seen in various laws. E.g. Section 61 which amends the rule in Kelner V Baxter against pre-incorporation contracts.

In conclusion: Readers, state your opinion. Should there be judicial discretion?



Quite eccentric really

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