Judicial federalism under the Nigerian constitution

Being text of a paper presented by His Excellency, Mr. Babatunde Fashola (SAN), at the 8th Annual General Conference of the section on legal practice of the Nigerian Bar Association in Uyo, Akwa Ibom state, recently.

Protocol
I am most delighted to have been asked to present a paper on Judicial Federalism under the Nigerian Constitution. I thank the organizers of this event for the invitation extended to me to address this very distinguished body on this august occasion.
Judiciary is universally acknowledged as the cornerstone of a civilized society. It is that arm of Government that is constitutionally empowered to adjudicate on disputes and frictions between persons and persons and authorities in a country. Without an organised means of dispute resolution, a society is nothing but a glorified forest.
The attributes which mark judicial power apart from other governmental powers are not to be found in its compulsive character nor in the power of the court to determine disputed facts or interpret the law. No, the attributes lie in the power of a court to create enforceable rights and obligations by a binding decision between parties.1 A discussion on judiciary is therefore of importance not only to members of the legal profession, but to every citizen in the country.
Nigeria is Federation. This is much evident from the provision of Section 2(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides that: “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.” The defining feature of federalism is the recognition of the separateness and independence of each government that makes up the Federation. In his seminal book on the subject: Federalism in Nigeria under the Presidential Constitution, Professor Ben Nwabueze states that:
“Federalism is an arrangement whereby powers of government within a country are shared between a national, country-wide government and a number of regionalised (i.e. territorially localised) governments in such a way that each exists as a government separately and independently from the others operating directly on persons and property within its territorial area, with a will of its own and its own apparatus for the conduct of its affairs, and with an authority in some matters exclusive of all the others. Federalism is thus essentially an arrangement between governments, a constitutional device by which powers within a country are shared among two tiers of government.”
I believe the question that we need to ask is this: How federal is Nigerian Judiciary under the Constitution of the Federal Republic of Nigeria?
The starting point of any discussion of the Judiciary is to be found in the provisions of section 6 of the Constitution of the Federal Republic of Nigeria. It appears from the provision of the section that the Constitution intended that the Judiciary should be truly federal as pragmatically defined in the above quotation by Prof. Nwabueze. The Constitution draws a sharp line of distinction between the ‘Judicial Powers of the Federation’ and the ‘Judicial powers of a State’.
According to section 6(1) of the Constitution, “The Judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.” On the other hand, section 6(2) provides that: “the judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State.”
That however is not the end. The Constitution further underscores the separateness of Federal Courts and State Courts by the delimitation it provided in its Chapter 7 which is headed ‘The Judicature’. Whilst Part I of the Chapter is headed ‘Federal Courts’, Part II is headed ‘State Court’. Under the Federal Courts, we have the Supreme Court of Nigeria, the Court of Appeal, the Federal High Court, the National Industrial Court of Nigeria, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the FCT and the Customary Court of Appeal of the FCT.
For the State Courts, which are listed under Part II, these are; the High Court of a State, the Sharia Court of Appeal of a State and the Customary Court of Appeal of a State.
The federal structure of the Judiciary is however not limited to the Courts. The Constitution also delineates the administration of the Court between the Federation and the States. One of the bodies created for the Federation under section 153 of the Constitution is the Federal Judicial Service Commission. This is the body vested with the power to advise the National Judicial Council in nominating persons for appointment to ‘federal judicial offices’.
At the State level, we have the State Judicial Service Commission, which is one of the bodies established under section 197 of the Constitution, to exercise similar power as its federal counterpart.
From the foregoing, it appears, from parallel existence of the Judicature at the Federal and State levels, that there is judicial federalism in the Nigeria under the 1999 Constitution. Is that really the case?
Distinguished members of the Nigerian Bar, the answer to that seemingly simple question is not as elementary as it appears to be. Unlike the Legislature and the Executive which have clear and stated mandates under the Constitution as between the Federation and the State, the judiciary does not benefit, in my humble opinion, from such precision.
A cursory look at the Constitution reveals that whilst sections 4 and 5 of the Constitution sets out in precise terms, the scope of legislative and executive powers as between the Federation and States, same cannot be said for the Judicature. Subsections 1 to 5 of section 4 expressly provide for the scope and extent of the federal legislative powers in sharp contrast to subsections 6 and 7 which deal with legislative powers of the State House of Assembly. The same scenario is to be found in section 5 where another line of distinction is drawn between the Executive power of the Federation (see section 5(1) ) and the Executive powers vested in a State (see section 5(2)).
We can now compare the above with what is obtainable under section 6 of the same Constitution. After the structural delineation, which I referred to above, what we have in section 6(6)(a) and (b) of the Constitution is omnibus judicial powers which are vested in both Federal Courts and State Court. For purpose of clarity, the sub-sections provide that:
“The judicial powers vested in accordance with the foregoing provisions of this section – shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law…to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of 6 any questions as to the civil rights and obligations of that person.”
It is arguable from the above that the framers of the Constitution did not intend a surgical separateness between the Federal Courts and State Court as we have with the Legislature and the Executive. This is also the view of Professor Nwabueze who opined that the provision:
“…is not a definition of the extent of federal or state judicial powers. It is rather a definition of the nature of judicial powers, as a power for the determination of the civil rights and obligations of persons in justiciable matters brought before the courts by such regular proceedings as are recognized by law.”

To be concluded next week