Posted December 16, 2006

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Never before has the third Estate of the Realm, the judiciary in Nigeria, faced with the kind of challenges such as the ones that have confronted it in the past seven years of the present democratic government of Chief Olusegun Obasanjo. The judiciary, no doubt, must be commended with the renewed sense of courage and candour it is again exhibiting in discharging its noble responsibilities of interpretation of the law and resolution of conflicts.

Recent events in the country have thrown more light on the above. Without mincing word, the Court of Appeal decision in what is now known as “The Ladoja’s case” is an undoubtedly a celebrated one. And to cap it up, the decision of the Supreme Court upholding the earlier decision of the Court of Appeal on the same was really an icing on the cake of the new wave of judicial activism in the country. The decision of the Ibadan division of the Court of Appeal, and later that of the Supreme Court upholding, the nullification of the impeachment procedure adopted by the Oyo State House of Assembly members, was a bold step in the right direction by the judiciary in the discharge of its noblest responsibility, I dare say,: social engineering through the instrumentally of the law.

Hitherto, the judiciary had recoiled and shied away from inquiring into any dispute arising from matters, especially as it pertained to impeachment process, citing section 188(10) of the constitution as foreclosing any recourse to Court of law in the event of any such dispute arising there from. Thus in Balarabe Musa v. Auta Hamza (1982) 3 NCLR (Vol.3) page 229 the then Governor of Kaduna State got caught in the web of political intrigues and as a result impeachment proceeding was instituted against him by the House of Assembly. In his bid to stop what was clearly a stage-managed investigation committee appointed to investigate him of the various allegations of wrongdoings against the state, the governor approached the State High Court seeking the Order of Court to stay the proceedings of the Investigation Committee appointed by the Speaker of the House. The High Court declined jurisdiction, citing as excuse section 170(10) of the 1979 Constitution which is in pari materia with the Section 188(10) cited above.

On appeal, the learned Justice of the Court of Appeal, rather than stamping its feet courageously as it counterparts in Ibadan Division has demonstrated to curtail the excesses and political vendetta of the time and ultimately show the way, decided to act the Pontius Pilate by washing off their hands and thereby making the judiciary, until recently, a helpless bystander rather than an active participant in the scheme of things in the country.

As if the above was not enough, as recent as the year 2002 the judiciary timidly missed what would have been another golden opportunity to lead and engineer the society in the right path of governance when, in Abaribe v. The Speaker, Abia State House of Assembly & Or. (2002) 14 NWLR (pt. 788) page 466, the Court of Appeal was again called upon to intervene whether or not the refusal of the Abia State House of Assembly to give the time as required by the Constitution to enable the Deputy Governor respond to the allegations upon which the House had commenced impeachment proceedings against him, was not a violation of his fundamental Human right. Again, even while the Court of Appeal acknowledged and in deed articulated its power to “ensure that strict adherence to the spirit of the constitution for the endurance of a democratic regime”, yet it could not bring itself to muster enough will to take the bull by the horn. Thus, one was left bewildered, when in an unusual volte face, it asserted that “The Court should not however attempt to assume for itself power it is never given by the Constitution to brazenly enter into the miasma of the political cauldron and have itself bloodied and thereby losing respect in its quest to play the legendary Don Quixote de la mandie”. And with those words, the Court of Appeal again washed off its hands!

It is against the above background that the boldness and courage of the Honourable justice James Ogebe and the rest of his learned brothers at the Ibadan division for the Court of Appeal, and subsequently the decision of the apex Court upholding the decision of the former, must be roundly applauded. The decision has opened a whole lot of vista for subsequent judicial control of the maddening intrigues that characterize power politics in Nigeria.

It is imperative to point out that if we all are agreed that law is an instrument of social change, then that social change can only be achieved by systematic engineering of the building blocks of the social values of the society, using the law as an instrument of social control.

Thus, according to ROSCOE POUND, an early 20th Century legal philosopher, law as a form of social control, to be adequately employed in enabling just claims and desires to be satisfied, must be developed in relation to existing social needs. In his sociological school of jurisprudence, ROSCOE Pounds is of the view that the making, interpretation and application of law should take into account the prevailing social facts.

One cannot agree more with the view of Roscoe pound as expressed above, and to add too, that to ensure the continued relevance and public confidence in the judiciary, our judges must go beyond abstract application of legal rules and principles but of necessity, must concern themselves more with the adaptations of these rules and principles towards solving the problems and facts of social life. There is no greater and perfect cloning of divine work here on earth than the work of administration of law and justice which our judges are saddled with. Being so, our judges, with the greatest respect must not see their duties as ministerial as to preoccupy themselves with application of abstract propositions of law. It is only with this attitude of mind that judges nay, the judiciary can achieve the goal of social engineering using the instrumentality of the law.


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