¹ Braithwaite, Punch, 20 12 1983, 1.Google ScholarPubMed

² Yakubu, “The Judiciary under a Presidential system of Government” (1983) IABU LJ. 18 at 22.Google Scholar

³ Aguda, The Judiciary in the Government of Nigeria, Ibadan, 1983, 83.Google Scholar

⁴ Aguda, op. cit., at 86.Google Scholar

⁵ Shetreet “Judicial Independence: New Conceptual Dimensions and Contemporary Challenges” in Judicial Independence: The Contemporary Debate, ed. Shetreet, and Deschenes, , Netherlands, 1985, 598.Google Scholar See also The Role of the Judge in Contemporary Society (Publication No. 24 of the International Association of Judges in Venture with the United Nations Social Defence Research Institute, Rome, 1984, 11–23);Google Scholar and also, Article II, paragraphs 2:02 and 2:04 of the Universal Declaration on the Independence of Justice (“The Montreal Declaration”). Adopted at the First Plenary Session of the First World Conference on the Independence of Justice held at Montreal, Canada on 10 June 1983.

⁶ See “The Role of the Judge in Contemporary Society”, at 16.Google Scholar

⁷ Shetreet, 599. Institutional independence connotes the independence of the judiciary as a body, from the other arms of government. See Article II, paragraph 2:04 of the Montreal Declaration, and above, n. 6.

⁸ Oputa, The Law and the Twin Pillars of Justice, Owerri, Nigeria, 1981, 115.Google Scholar See also, Shetreet, above, 599.

⁹ Official Report of the Proceedings of the Constituent Assembly, Vol. 25 (Monday, 12 12 1977) at 9.Google Scholar

¹⁰ Mr. A. Adesanya, ibid., Vol. 13 (16 November, 1977), 35.

¹¹ Mr. E. J. Toro, ibid., Vol. 25 (14 December, 1977), 18.

¹² Oputa, All Nigeria Judges Conference Papers, 1982, London, 1983, 295.Google Scholar

¹³ Ibid., at 299.

¹⁴ Article II, paragraph 2:06(a) of the Montreal Declaration provides that “No ad hoc tribunals shall be established”. Paragraph 2:06(e) reads: “The jurisdiction of military tribunals shall be confined to military offences committed by military personnel. There shall always be a right of appeal from such tribunals to a legally qualified appellate court.” As will be seen, these provisions are followed more in the breach than in the observance in Nigeria.

¹⁵ Stephen, , “Judicial Independence—A Fragile Bastion” (1982) 13 Melbourne Univ.L.Rev. 334, 337.Google ScholarCompare, Nwabueze, A Constitutional History of Nigeria, London, 1982, 215Google Scholar where he refers to the establishment of tribunals to try certain offences as an encroachment on judicial power.

¹⁶ E.g. The Counterfeit Currency (Special Provisions) Decree (No. 22), 1984, under which a tribunal was set up to try currency offences, was passed in July 1984, but was deemed by s. 19(1) thereof to have come in force on 31 December 1983. Most of the offences thereunder incurred a death penalty. Also, the Special Tribunal (Miscellaneous Offences) Decree (No. 20), 1984, which provides capital punishment for certain offences was passed in July 1984, but was deemed to have come into effect on 31 December 1983 (s. 11).By s. 6(3) of the Recovery of Public Property (Special Military Tribunals) Decree (No. 3), 1984, there is a presumption of guilt for offences thereunder.

¹⁷ E.g. The Currency Offences Tribunal set up under s. 8 of the Counterfeit Currency (Special Provisions) Decree, the special tribunal set up under the Public Officers (Protection Against False Accusations) Decree (No. 4), 1984; and the special tribunal set up under the Special Tribunal (Miscellaneous Offences) Decree. The chairmen of all these tribunals are either serving or retired judges of High Court status, while all the other members of the tribunals are members of the armed forces.

¹⁸ E.g. Tribunals set up under the Recovery of Public Property (Special Military Tribunals) Decree (No. 3), 1984. The chairmen are members of the armed forces.

¹⁹ E.g. There is no appeal from the decisions of the tribunals under (1) The Public Officers (Protection Against False Accusations) Decree, (2) The Recovery of Public Property (Special Military Tribunals) Decree, (3) The Special Tribunals (Miscellaneous Offences) Decree; but the government has the power to confirm or revoke the decisions thereof.

²⁰ Above, n. 5.

²¹ (1971) 1 University of Ife L.R. 201.

²² The Federal Military Government (Supremacy and Enforcement of Powers) Decree (No. 28) of 1970.

²³ Suit No. 1D/14M/84 decided 6 April, 1984. Reported in Gani Fawelimi, Nigerian Law of Habeas Corpus, Lagos, 1986, 349.Google Scholar

²⁴ This writer was personally involved as counsel in the case, and so the events are within his personal knowledge. The detainees were finally released about six months later.

²⁵ See Article II, paragraph 2:02 of the Montreal Declaration; The Role of the Judge in Contemporary Society, 11; Shetreet, 598.Google Scholar

²⁶ Shetreet, 637.

²⁷ S. 211(2) of the Constitution.

²⁸ S. 211(1).

²⁹ See ss. 218, 229, 235, 241 and 246.

³⁰ Schedule 3, Part II, para. 9 of the Constitution.

³¹ Nwabueze, The Presidential Constitution of Nigeria, 303.Google ScholarCompare, Aihe, Selected Essays on Nigerian Constitutional Law, Benin City, Nigeria, 1985, 96.Google Scholar

³² Quaere whether a binding advice is not also a contradiction in terms.

³³ Nwabueze, loc. cit. The importance of this observation will appear later.

³⁴ S. 256 of the 1979 Constitution (as amended). The term “misconduct” is not defined.

³⁵ Ibid., s. 256(l)(a). This means that theoretically they cannot be removed without a recommendation to that effect. (Author's emphasis.) This provision harmonises with Article II, paragraph 2:33 of the Montreal Declaration.

³⁶ S. 256(l)(b) as amended by Decrees No. 1 of 1984, and No. 17 of 1985. Contrast England, where High Court judges are appointed by the Crown on the advice of the Lord Chancellor, but the Lord Chief Justice, the Master of the Rolls, President of the Family Division, Lord Justices of Appeal, and the Lords of Appeal in the Ordinary are appointed by the Crown on the advice of the Prime Minister; all hold office during good behaviour, and are removable by the Crown only upon an address by both Houses of Parliament, while inferior judges are appointed and removed by the Lord Chancellor. See, generally, Cecil, H., The English Judge, London, 1970, 12ff;Google ScholarShetreet, S., Judges on Trial, Amsterdam, 1976, 12ff.Google Scholar

³⁷ S. 14(1) of Decree No. 1 of 1984.

³⁸ S. 256(l)(b). Although, arguably, only “for cause”, i.e. for “misconduct”, infirmity or contravention of the Code of Conduct, but it is difficult to see how this can be enforced in practice. This provision is in breach of Article II, paragraph 2:33 of the Montreal Declaration.

³⁹ Schedule 3, Part 1, paragraph 8 of the Constitution. Judges of the state High Courts, Sharia and Customary Courts of Appeal were conspicuously left out, and this provision, which would have been helpful to the judges, was repealed by Decree No. 26 of 1986. Also, the former provisions of paragraph 9 of Schedule 3, Part II, which empowered the state Judicial Service Commissions to make recommendations with respect to the removal of these judges were repealed by Decree No. 1 of 1984 without any compensatory provision, and thus the Advisory Judicial Committee has no defined constitutional function with respect to their removal. This leaves the tenure of office to these judges in an extremely precarious position.

⁴⁰ Eso, in All Nigeria Judges Conference Papers, 1982, op. cit., 133. Author ' s emphasis.Google Scholar

⁴¹ Ibid., at 134.

⁴² Ibid.

⁴³ See Newswatch Magazine, 6 01 1986, 29:Google ScholarPubMed see also Aihe, above, n. 31, at 107–108 where the author reports the retirement of the Chief Judge and four other judges of a state “with immediate effect”, and without reason.

⁴⁴ The Chief Justice was reported to have said that he had no regrets about the purge of “some undesirable elements” and “some corrupt judges” from the nation's judiciary. See, Daily Times, Friday 28 06 1985, 32Google Scholar; Daily Sketch, Friday 28 06 1985, 9.Google Scholar The phrase “undesirable elements” is rather vague, especially where it appears to be a reason adduced for mass sackings of High Court judges, and the fact that the work “some” was used with respect to “corrupt” judges implies that not all of them were corrupt. In any case, this was only an ex post facto justification ofa fait accompli.

⁴⁵ See Griffiths, , The Politics of the Judiciary, London, 1981, 21;Google Scholar Henry Cecil, The English Judge, 12. This is not to say that there could not have, or have not, been since 1700 a single judge who has been regarded in certain quarters as “undesirable”.

⁴⁶ As has been shown, the military governments have displayed a propensity for, and an unrepentant habit of removing judges summarily and without reason. It is not clear why the military governments remove judges. It is not unlikely that some of the judges were rightly removed because of corruption or other misconduct. The Chief Justice referred to this as justification for the purge in 1985. (See n. 44, above.) But the absence of any formal procedure for testing allegations of misconduct or incompetence is objectionable. (See Article II, paragraphs 2:34 and 2:35 of the Montreal Declaration.) It is also not unlikely, however, that some judges have been removed just because they have not succumbed to pressures from the government.

⁴⁷ Above, n. 42, and accompanying text. In any case, very little comfort may be derived from the constitutional requirement for the recommendation of the Advisory Judicial Committee, as this can be amended or withdrawn at any time by a constitutional decree, should the requirement constitute a hindrance to the designs of the government.

⁴⁸ See Shetreet, at 598–599 and 630.

⁴⁹ See Nwabueze, Nigeria's Presidential Constitution 1979–83: The Second Experiment in Constitutional Democracy, New York, 1985, 433–444.Google Scholar

⁵⁰ Above, n. 49, at 444.

⁵¹ See West Africa magazine, , 28 04 1986, 901.Google Scholar The judge was dismissed for this by a subsequent government although he strenuously denied the allegations.

⁵² S. 78 of the Constitution.

⁵³ Ibid., s. 116.

⁵⁴ Above, n. 8 at 104. Compare Aguda, (former Chief Justice of Ondo State) in a paper titled “The Judiciary”, The Nigerian Association of Law Teachers Journal, 15 Annual Conference, 1977, 116, noting the same fact.Google ScholarPubMed

⁵⁵ According to Griffiths, circuit judges in England earned £22,000 p.a. in 1981 (see Politics of the Judiciary, 21).Google Scholar English circuit judges now earn £48,000 p.a. (See Gow, Neil, N.LJ., 18 11, 1988, 843Google Scholar). Justices of the Supreme Court of Nigeria were up till early in 1988 on a basic salary of N 17,500 p.a. Practising lawyers have been known to earn several times this amount from one single brief and although there was implemented in 1988 a new salary scale for judges which heralded an increase in judicial salaries of about 120% this was at a time when the naira had fallen in value by more than 700%. Thus, although the increase is more than welcome, the judges are actually not better off. Compare also the U.S.A. where in 1981, judicial salaries ranged from $44,600 a year for District Judges to $65,000 for the Chief Justice. (See Oputa, above, n. 8, at 104.)

⁵⁶ S. 255 of the Constitution. For similar pension provisions in the UK and the USA, see Shetreet, Judges on Trial, at 32–33.Google Scholar

⁵⁷ They are the only ones referred to as “judicial officers” under the Constitution. See s. 277(1) (the interpretation section).

⁵⁸ At least 34 judges were removed in Nigeria between April 1985 and April 1986. See n. 43, above, and nn. 92 and 93, below.

⁵⁹ Aguda, The Judiciary in the Government of Nigeria, at 38.Google Scholar Author's emphasis.

⁶⁰ Oputa, The Law and the Twin Pillars of Justice, at 115.Google Scholar Author's emphasis.

⁶¹ See Shetreet, at 623 and 631.

⁶² Holt, C. J. in Groenvelt v. Burwell, 91 E.R. 343 at 344.Google Scholar

⁶³ Lord Robertson in Haggart's Trustees v. Lord President (1824) 2 Shaws Rep. 125 at 134 (Quoting Lord Stair).Google Scholar

⁶⁴ J, Gee in Sparks v. Duval County Ranch Co., 604 F.2d 976 at 979–980 (5th Cir. 1979).Google Scholar

⁶⁵ J, Fox. in Taafe v. Downes, 13 E.R. 15 at 23–24.Google Scholar

⁶⁶ J, Mayne. in Taafe v. Dowries at 20;Google Scholar see also, Fray v. Blackburn, 122 E.R. at 217;Google ScholarAnderson v. Gorrie [1895] 1 Q.B. 668 at 670;Google ScholarThe United States Supreme Court in Randall v. Brigham, 74 U.S. 523 at 536;Google ScholarBradley v. Fisher, 80 U.S. 335 at 347;Google ScholarStump v. Sparkman, 55 L.Ed. 2d. 331 at 343.Google Scholar

⁶⁷ See J, Irikefe. (as he then was) in Boyo v. Atake (1970) M.W.S.N.L.R. 197 at 205;Google ScholarC.J.N, Elias. in Awosanya v. Board of Customs (1975) 1 All N.L.R. 106 at 116;Google ScholarJ.S.C, Karibi-Whyte. in Egbe v. Adefarasin (1985) 1 N.W.L.R. 549 at 567.Google Scholar

⁶⁸ See especially the decision of t h e Supreme Court in Egbe v. Adefarasin (1985) 1 N.W.L.R. 549:Google Scholar See also Boyo v. Atake (1970) M.W.S.N.L.R. 197.Google Scholar

⁶⁹ For similar provisions in other parts of Nigeria, see, e.g. The High Court Laws; Northern Nigeria, s. 115(1); Western Nigeria, s. 68(1); Eastern Nigeria, s. 55(1). See also, Sharia Court of Appeal Law (Northern Nigeria) s. 8; Customary Court of Appeal Edict (Bendel State) 3.32(1).

⁷⁰ See Egbe v. Adefarasin (1985) 1 N.W.L.R. at 564.Google Scholar

⁷¹ Egbe v. Adefarasin; Boyo v. Atake.

⁷² [1975] Q.B. 118.Google Scholar

⁷³ [1975] Q.B. at 132.Google Scholar

⁷⁴ See Onitiri v. Ojomo 21 N. L. R. 19;Google ScholarAwosanya v. Board of Customs (1975) 1 All N. L. R. 106.Google Scholar Examples of statutory provisions are; The Magistrate Courts Laws; Lagos State, s. 83(1); Western Nigeria, s. 57(1) Eastern Nigeria s. 76(1); District Courts Law (Northern Nigeria) s. 83(1); The Customary Courts Laws, Lagos State, s. 9, Western Nigeria, s. 10, Area Courts Law s. 9: But see the Customary Courts Edicts, Anambra State, s. 10, which differs from the other provisions relating to inferior courts in that it provides only for a qualified immunity (i.e. dependent upon good faith) and only for acts within jurisdiction.

⁷⁵ [1982] 3 W.L.R. 604 at 616; affd: [1983] 2 A.C. 237.

⁷⁶ Yakubu, , “The Judiciary under a Presidential System of Government.” (1983) I Ahmadu Bello University Law Journal, 18, 22.Google Scholar

⁷⁷ H. Cecil, The English Judge, at 4. See however, the case of Lord Bacon, a Lord Chancellor, who was convicted, fined and imprisoned for corruption, in Campbell, The Lives of the Lord Chancellor, 4th ed. Vol. III, 102–116.Google Scholar

⁷⁸ See Nwabueze, above, n. 49, at 439–440.

⁷⁹ Schwartz, Herman, “Judges as Tyrants” (1971) 7 Crim. Law Bulletin, at 129–130.Google Scholar An example of an instance where a Nigerian judge (a High Court Judge) vividly reflected this description is found in Boyo v. The A-G, Mid-West State (1971) 1 A.N.L.R. 342,Google Scholar a case where the judge had “tried” and convicted a lawyer for contempt. The judge not only withheld certain parts of the records of the contempt “proceedings” for the purposes of an appeal against his judgment, but had engaged during the contempt proceedings in dialogue with which the Supreme Court felt “dismayed” that a court should have thought it proper to engage in. Part of the conversation was reproduced in the judgment of the Supreme Court (at 349–351). Here are some excepts from the judge's speech: “Because he said I fumbled in my law I have prepared my case. I have 16 authorities in support of my case and in this trial I shall trade law for law … I completed my legal studies in 18 months and many people considered me a brilliant student”; “I used to think of Boyo as a brilliant lawyer.” The learned judge then went on to talk about his childhood days with Mr. Boyo, how they grew up together and the loyalty he expected from him. As he went on again about the allegation of fumbling in his law, Mr. Boyo got up from the dock to address him, upon which he snapped, “If you say anything from there, I will send you straight to prison. Sit down! Stupid” (see 350–351). The events therein led to an action by Mr. Boyo against the judge (Boyo v. Atake (1970) M.W.S.N.L.R. 197Google Scholar). (See above, nn. 67, 68 and 71.)

⁸⁰ Oputa, The Law and the Twin Pillars of Justice, at 9.Google Scholar

⁸¹ See Daily Times, Friday 28 06, 1985.Google Scholar Interestingly enough, there is a conspicuous dearth of prosecutions for corruption in Nigeria. There are a few reported cases of convictions for judicial corruption but they are old cases. See R. v. Olukolu (1939) 5 W.A.C.A. 118;Google ScholarR. v. Duruibe (1938) 4 W.A.C.A. 124.Google Scholar The judges in the USA do not seem to have a better image than Nigerian judges, as there have been numerous trial and convictions, for corruption by American judges. (See e.g. US v. Hastings 681.F.2d. 706 (Uth Cir. 1982);Google ScholarBraatelein v. US 147.F.2d. 888 (8th Cir. 1945);Google ScholarState v. Coruzzi 46O.A.2d. 120 (New Jersey, 1983).)Google Scholar

⁸² Also reported in (1981) 1 F.N.L.R. 179.Google Scholar This was a decision of the Supreme Court on a dispute (revenue allocation) between the government of Bendel State, and the government of the Federation.

⁸³ Aguda, above, n. 59, at 61.

⁸⁴ Yakubu, above, n. 76, at 28.

⁸⁵ Aguda, above, n. 59, at 70–71.

⁸⁶ Ibid., at 71.

⁸⁷ Oputa, above, n. 8, at 9.

⁸⁸ Aguda, above, n. 59, at 71.

⁸⁹ Ibid., at 83–84.

⁹⁰ Ibid., at 86.

⁹¹ Unreported. Suit No. LD/1396/75 (Lagos High Court).

⁹² The defendant, against whom the judgment went, appealed on the ground that it was unconstitutional, being out of time. The appeal was conceded by the plaintiff and the case was remitted to the High Court for retrial de novo. (Unreported appeal number: CA/L/47/84.)

⁹³ This led to the dismissal of the judge from office. See, West Africa, 28 04, 1986, 901.Google Scholar

⁹⁴ See Daily Times, 27 11, 1985, 1.Google Scholar Thejudge was later charged with the murder of the constable. He was acquitted after a long trial. (West Africa magazine, 15 12, 1986, 2596);Google Scholar it is reported that there are innuendoes that he might have been the victim of a frameup engineered by men of the underworld whose operatives he had put away in the past (ibid). Whether the innuendoes are true in fact, no one will ever know.

⁹⁵ See Aguda, The Challenge of the Nigerian Nation, at 55–56.Google Scholar

⁹⁶ Dhavan, , “Judges and Accountability”, in Judges and the Judicial Power (ed. Dhavan, , Sudarsham, and Khurshid, ), p. 169.Google Scholar

⁹⁷ Hand, Learned, CJ. in Gregoire v. Biddle, 177 F.2d. 579 at 581.Google Scholar

⁹⁸ Stewart, J., in Stump v. Sparkman 55.L.Ed.2d. 339 at 346 (US Sup.Ct. 1978).Google Scholar The opinion of Stewart, J., here is that judges should not be free so to act.

⁹⁹ See O'Bara, , “Judicial Immunity or Imperial Judiciary”. (1978–1979) 47 U.M.K.C. Law Rev. 81 at 94.Google Scholar

¹⁰⁰ See Cappelletti, “Who watches the watchmen? A Comparative Study in Judicial Responsibility”, in Shetreet & Deschenes, Judicial Independence: The Contemporary Debate, at 556.Google Scholar