The
black’s law dictionary, defines judiciary as “the branch of government
responsible for interpreting the laws and administering justice”[1]
The dictionary of the social sciences,
defines judiciary thus “the term judiciary designates a judicial system,
comprehending structure and jurisdiction of courts, appointment and tenure of judges
and judicial proceedings. In current usage the term judiciary specifically
refers to the function of the judge in judicial process.”[2]
Similarly, in his book, Nwabueze gives a
broader definition as follows:
“The judiciary refers to the whole
body of lawyers who preside at the courts. The term therefore embraces judges
of the superior courts and those of the junior courts, Magistrates and district
judges.”[3]
Judiciary may be defined simply as a
system of courts of law and the judges. This definition includes, in this
regard, any person duly appointed to preside over a cause or matter.
Judiciary, as we
use to hear, is one of the branches governments which is treated as “the
judicature” under Chapter VII of 1999 Constitution of the Federal Republic of
Nigeria.
Judiciary covers the personnel and institutions through which the laws of country are interpreted in the determination of the rights and obligations of the citizens as well as that of the government. It is, without doubt, said to be the last hope for the common man in whatever system of government that is in place. This actually gingered the mind of honourable Justice Nnamani when he said:
Judiciary covers the personnel and institutions through which the laws of country are interpreted in the determination of the rights and obligations of the citizens as well as that of the government. It is, without doubt, said to be the last hope for the common man in whatever system of government that is in place. This actually gingered the mind of honourable Justice Nnamani when he said:
“It has been generally acknowledged
that the judiciary is the guardian of our constitution the protector of our
cherished governance under the rule of law, the guardian of our fundamental
rights, the enforcer of all laws without which the stability of society can be
threatened, the maintainer of public order and public security, the guarantee
against arbitrariness and generally the only insurance for a just and happy
society.”[4]
For proper
understanding and appreciation, we cannot talk about the judiciary without
looking at what we mean by ‘judicial powers’. The Black’s Law Dictionary.[5] Defines
judicial powers as:
The authority vested in courts and
judges to hear and decide cases and to make binding judgments on them; the
power to construe and apply the law when controversies arise over what has been
done or not done under it. Under federal law, the power is vested in the U. S. Supreme
Court and in whatever inferior courts congress establishes.
Similarly, in the U.S case of MUSKRAT
V. UNITED STATES,[6]
court defined it as
“The right to determine actual
controversies arising between diverse litigants duly instituted in courts of
proper jurisdiction.”
Coming back home,
our own Supreme Court of Nigeria, also, had in the case of SENATOR
ABRAHAM ADESANYA V. PRESIDENT
OF THE FEDERAL REPUBLIC OF NIGERIA[7]
given its own impression of what is judicial power”. The Apex Court said:
The words judicial powers as used in
Constitution means the power which every sovereign authority must of necessity
have to decide controversies between its subjects, or between itself and its
subjects, Whether the rights relate to life, liberty or property. The exercise
of this power does not begin until some tribunal which has power to give a
binding authoritative decision (whether subject to appeal or not) is called
upon to take decision.
The totality of the power given to the Nigerian
courts is so wide that it covers judicial review of the acts of the other arms
of government. In fact, the power goes to the extent that the legislature is
prevented from making laws that may tamper with court’s jurisdiction.
The judiciary,
according to the Hon. Justice C. A. Oputa is by nature of its function and role
the citizens’ last line of defence in a free society, that is, the line
separating constitutionalism from totalitarianism. The court is thus a
significant theatre where the battles over infringement of rights and denials
of freedom are vigorously fought out. But, the courts act only when these issues
are before them; this is after people have exercised their rights and gone or
are brought to court to justify their action. The activists are thus the first
line of defence. Those who become litigant in court form the second line of
defence. Then lawyers form the third line with juries and jurors forming the
fourth line. The media, exercising communication skills to inform public
opinion, form the fifth line. The courts become the sixth and final line of
defence. If this line of defence is overrun, then, one is safe anymore. The
first act of any dictator always is to silence the courts. As the Honorable
Justice Thurgord Marshall once observe;
“Tyranny cannot flourish where government recognize
the worth of every individual, as the courts do every time they resolve a law
suit” (peace through law).
The judiciary deals with the people and
their individual problems in law suits. If the laws passed by the legislature
are inequitable or are contrary to the constitution, then judges are likely to
be the first to know since they are the ones called upon to send innocent accused
person to prison or deny legal claims which in justice should be granted. Without
the judiciary, neither can there scarcely be any effective challenge to
oppressive laws nor can there be any check at all, on laws that offend the
constitution or that derogate from the fundamental rights of the citizen. The
judiciary is the might fortress against tyrannous and oppressive laws. It is
the judiciary that has to ensure that the state is subject to the law; that the
government respects the right of the individual under the law, example under
the constitution. The courts adjudicate between the citizens inter se and also between the citizen
and the state. The courts, therefore, have to ensure that he administrator
conforms to the law; they have also to adjudicate upon the legality of the
exercise of executive power. The importance of the judiciary, in a free and
democratic society, cannot, therefore, be over-estimated probably due to lack
of understanding of its role. It is not an over statement to assert that an
independent judiciary is the greatest asset of a free people.
[1] The
Black’s Law Dictionary, Ninth Edition, Edited by Bryan A. Garner, p.294
[2] The
Living Webster Encyclopedia Dictionary of English Language 1977, Chicago, USA
[3] B. O.
Nwabueze: Machinery of Justice in Nigeria 1963 p. 262
[4] The judiciary in the 1990s: expectation and challenges”
in justice: a journal of contemporary legal problems.
[5] The
black’s law dictionary Ninth Edition, p. 294
[6] 219 us
346, 361 (1911)
[7] (1981) 5
sc 112; (1981) 2 NCLR 385. See, also Senate v. Momoh (1983) 4 NCLR 269