Home Constitutional Law II The Executive Powers of the Federation-Judicial Power

The Executive Powers of the Federation-Judicial Power

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The executive powers of the Federation is vested on the President of Nigeria, and he is at liberty subject to the provisions of any law made by the National Assembly to delegate such functions to the Vice-President and Ministers of the Government of the Federation or Officers in the Public Service of the Federation.

Also the executive powers of a State is vested in the Governor of that State and he may, subject to the provisions of any law made by a House of Assembly delegate such powers to his Deputy Governor and Commissioners of the Government of that State, or officers in the Public Service of the State. But note that the executive powers shall be so exercised as not to impede or prejudice the exercise of the executive powers of the Federation or to endanger the continuance of the Federal Government of Nigeria.

It should also be noted that the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly sitting in a joint session and except with the prior approval of the Senate, no member of the Armed Forces of the Federation shall be deployed on combat duty outside Nigeria.

Judicial Power

The judicial powers are vested in both the courts established for the Federation and the States. These courts are contained in section 6(3) (4) and (5) of the 1979 Constitution. 

And by section 6(6) (a) and (b) the judicial powers therefore vested has extended to all inherent powers and sanctions of a court of law.

It also extends to all matters between persons, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and of obligations of that person; it does not extend, except as otherwise provided by the constitution to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive principles of State Policy set out in Chapter II of the 1979 Constitution and shall not as from the date when the 1979 constitution was promulgated extend to any action or proceedings relating to any existing law made on or after 19th day of January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.

Comments

The constitution of Nigeria loaths to recognise the OUSTER of the court’s jurisdiction, but since a Military Decree is superior to the constitution more often than not, the ouster of court’s jurisdiction are prevalent and they constitute hair splitting occurrences in our statute books under the Military dispensation. 

For instance in Lakanmi and another Vs. A.G. (Western State) and other Edict No. 5 of 1967 (Western State) stated as follows:
“No defect whatsoever in respect of anything done by any person with a view to the holding of, or otherwise in relation to, any inquiry under that Decree and this Edict, shall affect the validity of the thing so done or anyproceeding, in the nature of quo warranto, certiorari, mandamus, prohibition, injunction or declaration or in any form whatsoever against or in respect of any such thing, proceeding, finding, order, decision or other act, as the case may be, shall be entertained in any Court of law.”

When this edict was challenged the Federal Government passed another Decree No. 45 of 1968 which validated all actions done under edict No. 5 of 1967. 

Similarly, the Failed (Banks) (Recovery of Debts) and Financial Malpractices in Bank Decree No. 18 of 1994 as amended provides in section 1(5) that the supervisory jurisdiction or power of judicial review of a High court shall not extend to any matter or proceeding before the tribunal under this Decree and that if any proceeding relating to the supervisory jurisdiction or power of judicial review of a high court on a cause or matter brought before the tribunal is before any High court after the commencement of this Decree, such action shall abate, cease or be deemed to be discontinued without any further assurance other than this Decree.

The Decree in fact went on to usurp the powers of the Court when it says in sections 2(1) (a) and (2) as follows:

Any part-heard proceeding, relating to a matter for which 
S. (1) under the tribunal has jurisdiction, which is pending before any Court on the date of the making of this Decree – (a) may, in civil case, be discontinued with the leave of that court and transferred to the tribunal for fresh hearing under the Decree.

(2) All proceedings shall be brought before the tribunal in accordance with the provisions of this Decree.

Such legislations may be replete in the statute books of Nigeria on close scrutiny, but the courts loath to see such Decrees pass as authentic without proper examination. Hence the Court will not allow such ouster clauses to go unchallenged when there are sufficient reasons so to do. The court guides jealously these ouster of court’s jurisdiction and usually views them with jaundiced eyes by subjecting them to the following acid tests:

For instance, in Anisminic Ltd V. The Foreign Compensation Commission & and another and Dr. S.D. Onabamiro V. Chief Bola Ige and others the Courts have tenaciously intervened in cases of patent irregularity. For instance the courts have intervened under the presumption of the law that justiciable issue is not to be denied the rights of trial by the Courts, save by clear words in a statute.

Also they have intervened in agreements which are contrary to public policy and which oust the courts in adjudicating on contract cases. The courts have intervened with the ouster of courts jurisdiction where their jurisdiction have been impliedly curtailed and not expressed in clear terms. For instance the courts have authority to determine whether a particular authority was the one really authorised to act as it was empowered to determine.

The courts will also be permitted to intervene and determine whether an authority has addressed itself to the matters properly put before him.

Lastly the Courts will intervene and decide on cases where the principles of natural justice have been violated.In the case of Onabamiro (supra) the decisions reached by Lord Pearce in Anisminic case (supra) were re-echoed as follows:

The lack of jurisdiction of a tribunal may arise in many ways notwithstanding the provisions of the ouster clauses to wit:

  1.  Where there is the absence of the formalities and conditions precedent that would confer jurisdiction on the said Tribunal before embarking on its inquiry, for instance where the tribunal could not form a quorum, or 
  2. Where the tribunal makes a decision or makes an order that it has no power to make; or 
  3. Where the tribunal departs from the rules of natural justice; or (d) Where the tribunal asks itself a wrong question; and 
  4.  Where the tribunal considers matters it ought not to consider. Also must be mentioned the case of Nigerian Ports Authority V. Panalpina Wood Transport Nigeria Ltd. and others which holds that matters which are not within the four walls of a Decree can not enjoy the protection of the ouster of the court’s jurisdiction. 

Lastly the cases of Agbaje V. C.O.P. and Re: Olayori and others should be remembered where legislative measure to oust the jurisdiction of the courts from reviewing administrative actions have been seriously rebuked for contravening the principles embedded in the rule of law.

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