For quite a while, I have always heard about ‘the judiciary’ being said as being the third arm of government. This statement is likely made consciously or unconsciously. The statement also seems justified by the situation the Nigerian judiciary has found itself and the way and manner with which it has been taken by either the executive or the legislature. This paper is of the humble view and submission that no one arm of government is supreme to the other and that each of all the three arms gains sovereignty on its own subject to the doctrine of checks and balances.

It is no doubt that ‘separation of powers’ is a characteristic of ‘democracy’. While separation of powers is defined as ‘the division of government powers into three branches of legislature, executive and judicial powers, each to be exercised by a separate and independent arm of government as a preventive measure against abuse of power, which will occur if the three powers are exercised by the same person or group of people’. See: Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page: 65. The word ‘Democracy’ (on the other hand) according to President Abraham Lincoln, the then President of the United States of America, is ‘a government of the people, by the people and for the people’. In other words, ‘Democracy’ is: (i) a government made up of the generality or representatives of the people; (ii) a government formed and installed by the people; and (iii) a government that exists for the welfare of the people’. See: Ese Malemi, (op. cit.) at page: 30. There is no doubt that in Nigeria, as of the moment, the types of democracy practiced is ‘the Indirect/Representative Democracy,’ which is a system of democracy where all persons of voting age are expected to vote to form the government by electing persons into government who will represent and act on their behalf, especially in the executive and legislative arms of government, which elected persons are expected to properly constitute all the other organs and agencies of government, and generally manage the affairs of government for the welfare of the people’. See: Ese Malemi (op. cit.) at page 31. As has been said above, government is then a joint functions of: (i) the Executive; (ii) Legislature; (iii) and the Judiciary.

In my view, I view that the derogatory word used for the judiciary as the third arm of government might have been because of all the three arms of government, only the judicial offices are not elected offices or politically interested. It could also be as a result of the numbering of the various sections of the three arms in the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- wherein the ‘Legislative powers’ are contained in section 4 of the Constitution; the ‘Executive powers’ are contained in section 5 of the Constitution while the ‘Judicial powers’ are contained in section 6 of the Constitution (the third powers and third arm of government as has wrongly been held). With due respect, I am of the firm view that all these arrangements should  not be taken beyond reasoning to assume that the judiciary ( as the last hope of the common man) is inferior and subservient to the other politically elected offices or arms of government. The arrangement should also not be taken to assume that the other two arms have the powers to control or intimidate or oppress or disobey the judiciary as they like and whenever they prefer! Each of the three arms is independent of the other subject to checks and balances.

Furthermore, the judicial powers of the Federation are vested in the courts established for the Federation by the Constitution is section 6(5) of the Constitution and by such laws that the National Assembly may pass. The judicial powers of a State is vested in the courts established for a State by the Constitution and by such laws that the House of Assembly of the State may pass. Also, in addition, the National Assembly is empowered by the Constitution to establish any other court with a jurisdiction subordinate to High Court and similarly, a House of Assembly is empowered by the Constitution to establish any other court to exercise jurisdiction, with respect to any matter on which a House of Assembly may make laws, though, those courts listed in section 6(5) of the Constitution shall be the only superior courts of record in Nigeria, and exercising all the powers therefore.

Furthermore, obedience to court’s orders is necessary for law and order to reign in Nigeria. This is a common attribute of democracy. The judiciary must not be treated with disdain or inferiority. This is important because there are consequences where the judiciary is not respected by obeying its orders made whether it is considered perverse, good or bad or unsatisfactory. In the case of Ezekiel-Hart v Ezekiel-Hart (1990) 1 NWLR (pt. 126), page 276 SC., Wali JSC cited with approval the dictum of O’Leary, in Canadian Metal Co Ltd v Canadian Broadcasting Corp (No. 2) (1980) AC 952 HL, where His Lordship said that: ‘ To allow court orders to be disobeyed would be to tread the road towards anarchy. If orders of court can be treated with disrespect, the whole administration of justice is brought to scorn … if the remedies that the courts grant to correct … wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the courts will quickly result in the destruction of our society’. Therefore, the issue of judicial sovereignty posits that the judicial orders must be respected and obeyed. The judiciary being an independent arm of government is to discharge judicial functions to all persons and authorities, without fears or favour.

Finally, I humbly submit that no one arm of government is supreme to the other and that each of all the three arms gains sovereignty on its own subject to checks and balances. Therefore, every other arm of government and private persons are bound to always obey the judicial orders made whether such judicial orders are good or bad or unsatisfactory until same are set aside by a higher court of law.

Email: hameed_ajibola@yahoo.com

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