A Reply To Hameed Jimoh’s Article On “The CJN Lacks The Constitutional Power To Direct Closure Of All Courts In Nigeria” By Ebi Robert

I have taken my time to peruse the piece written by my learned brother, Hameed Ajibola Esq., titled: “My Lord, The Honourable Chief Justice of Nigeria Lacks The Constitutional Power To Direct Closure Of All Courts In Nigeria!”.

In the article which was published by TNL and dated the 7th day of April, 2020, my learned friend argued in summary that the Chief Justice of Nigeria’s circular No: NJC/CIR/HOC/11631 of 23rd March 2020, and the other circular dated the 6th day of April, 2020, are all unconstitutional, being that the CJN is but the head of only the Supreme Court of Nigeria, and so he does not have powers to control other courts in Nigeria. Excerpt of the piece states as follows:

“It is important for me to state here that the CJN in his capacity as the Chief Justice of Nigeria is only a head of the Supreme Court of Nigeria having his power and functions under the part of the Constitution establishing the Supreme Court and so has no power to control other courts or other heads of other courts either the Federal or the State courts.”

I must say that the argument of my learned friend is quite interesting, but I will like to disagree a little.

I agree with my learned friend, Hameed Jimoh that the CJN is not the head of other courts, if it only suggests that he is not the direct Heads of Courts other than the Supreme Court. But being the Chief Justice of Nigeria, he is the head of the Judiciary in Nigeria; after all, the Supreme Court is the Apex Court in the country, and not the FCT alone. The head of the Supreme Court is the head of the Judicial arm in Nigeria.

The first circular was made on the 23rd day of March, 2020, to take effect from the 24th day of March, 2020. By this date, the Regulation made by the CJN was a mere directive. Its unconstitutionality is certain if the constitution prohibits the CJN from giving directives to Courts in the land other than the Supreme Court. Yes, the Constitution may have not expressly said he is not the head of all courts in the land; it is not in dispute that the Constitution does not prohibit the CJN in any provision of the Constitution from making directives other than practice directions affecting all courts in the land. Note, not all Directives translate to practice directions. It should also be in record that the directive did not create any offence to make it fall under the web of Section 36 (12) of the Constitution; neither does it amount to any practice direction per se. It is a mere directive for court closure because of the looming pandemic ravaging the land. The heads of almost all courts then adopted the directive and closed down courts. I do not think the directive has become unconstitutional simply because he is not the direct head of the said courts.

Secondly, Sub-Regulation 7 of Regulation 1 of Covid-19 Regulations, 2020 made pursuant to the Quarantine Act, 1929, by the president has validated the circular made by the CJN.

The sub-regulation states as follows:

“Court matters that are urgent, essential or time bound according to our extant laws, are also exempted in line with the Chief Justice of Nigeria’s Circular No: NJC/CIR/HOC/11631 of 23d March, 2020. Such matters will be handled as the Chief Justice of Nigeria may from time to time direct”.

The said sub-regulation operates as an exception to the regulation on movement issued by the president on Lagos, FCT, and Ogun State. This by legal implication means that the Covid-19 Regulation, 2020, has given legislative recognition of the directive given by the CJN which means that it is not just a mere directive since it upheld the exception in the directive. Recall that the said Regulation is made on Quarantine as an item in the exclusive list. In so far as the Constitution has not prohibited the CJN from making such directive with respect to Quarantine that affects the Court, and so far as the Constitution did not give only the direct heads of courts the power to make such directives affecting the court on Quarantine, we cannot say that the Covid-19 Regulation, 2020 which now has the force of law as the Quarantine Act, 1929, is contrary to the Constitution, else we will equally say that the President cannot even by Sub-Regulation 7 of Regulation 1 restrict court sittings since he is not the Head of any of the Courts.

At most, we can only conclude that the circular of the CJN affects only FCT, Ogun and Lagos State since the Regulation-provision that deals with restriction of movement affects just the three states. To that extent, we can only say that the directive enjoys legislative flavour only on the three states. But I do not think for all purposes that the Constitution makes void the CJN’s directive on all state courts simply because he is not the heads of all courts. Legally, he is the head of the Judiciary in Nigeria.

This writer opinion welcomes rebuttal… By Ebi Robert