My Lord, The Honourable Chief Justice Of Nigeria Lacks The Constitutional Power To Direct Closure Of All Courts In Nigeria! B Hameed Ajibola Jimoh Esq.

As the Corona Virus Disease-herein after referred to as the Covid-19- was discovered in Nigeria on the 27^th day of February, 2020, and in response to such cases and the spread of same, the Honourable, the Chief Justice of Nigeria-herein after referred to as the CJN- had via a Circular No.: NJC/CIR/HOC/11/631, dated the 23^rd day of March, 2020, directed all Heads of Courts across Nigeria to suspend Court sittings for an initial period of two weeks from the 24^th day of March, 2020. There and then, in another Circular No.: NJC/CIR/HOC/II/656, dated the 6^th day of April, 2020, My Lord, the Honourable CJN directed and or extended the suspension of Court Sittings till further notice, given the lockdown measure put in place by the Federal and States Government to curb the spread of Covid-19 (as contained in the said fresh circular). The said Circulars had emanated from the National Judicial Council of Nigeria-herein after referred to as the NJC- whose Chairman is the CJN.

Having regard to the facts that the existence and functioning of a Court of law is a creation of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, by virtue of section 6 of the Constitution, I had asked myself whether the Honourable, the CJN, either in His Lordship’s capacity as the CJN or as the Chairman of the NJC has the power under the Constitution to issue such directive(s) on all Heads of Courts directing them to suspend Courts sittings for whatever duration?! More so, this is an issue of the constitutional law and administrative law. Having considered the relevant provisions of the Constitution, I arrived at a submission that legally and constitutionally, the Honourable, the CJN or the NJC lacks the Constitutional power to direct closure of all courts in Nigeria or to direct all Heads of Courts within their capacity as Heads of Courts to suspend all court’s sittings for whatever duration and for whatever reason, hence, this paper.

First and foremost, as said above, the creation of all courts in Nigeria is made pursuant to section 6 of the Constitution with courts being categorized as Federal Courts and States Courts. Section 6(1), (2) and (3) of the Constitution is clear on this position where it provides thus

‘6.—(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a State.

(3) The courts to which this section relates established by this Constitution for the Federation and for the States specified in subsection (5) (a) to (i) of this section shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.’.

From the above provision of the Constitution, the courts therein listed under section 6(5) of the Constitution are specifically categorized under different headings in Chapter VII Judicature Part I Federal Courts (under the Constitution). The Supreme Court of Nigeria has been categorized as a Federal Court, with the Honourable the CJN as the Chief Justice of Nigeria. See: section 230 of the Constitution. Also, the Part B categorized the Court of Appeal of Nigeria as a Federal Court with the President of the Court as the Head of the Court of Appeal. See: section 237 of the Constitution. Also, Part C of the Constitution created the Federal High Court of Nigeria and it has been categorized as a Federal Court with the Chief Judge of the Federal High Court of Nigeria as the Head of the Court. See: section 249 of the Constitution. Also, by virtue of section 6 of the Constitution’s Third Alteration, Act, 2010, the National Industrial Court of Nigeria under Part CC of the altered Principal Act, has been categorized as a Federal Court under section 254A with a President of the Court as the Head of the Court. Furthermore, the Part D of the Constitution has categorized the High Court of the Federal Capital Territory, Abuja, as a Federal Court with the Chief Judge of the High Court of the Federal Capital Territory, Abuja, as the Head of the Court. See: section 255 of the Constitution. Furthermore, the Sharia Court of Appeal of the Federal Capital Territory and the Customary Court of Appeal of the Federal Capital Territory, Abuja, have respectively been categorized as Federal Courts under Part E and F respectively.  The above are the Federal Courts created by the Constitution with each of the Courts having its constitutional powers and functions therein stated. Then, the Constitution by virtue of Part II of Chapter VII, creates State Court for each State of the Federation with the Chief Judge as the Head of the Court. See: section 270 of the Constitution. Furthermore, the Sharia Court of Appeal of the State and the Customary Court of Appeal of the State have been respectively created under Part B and C respectively. Each of these courts too, has its own powers and functions under the Constitution.

From the foregoing, 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.

Furthermore, the National Judicial Council through which the Honourable, the CJN had issued the two circulars on the heads of courts directing the suspension of courts is established by the Constitution under section 153(1)(i) of the Constitution. Paragraph I of Part I of the Third Schedule to the Constitution clearly states the powers and functions of the NJC, the CJN being the Chairman by virtue of item 21 of the Paragraph to in summary (as summarized by me due to insufficient space to quote in details), be in respect of: recommendation for judicial officers, appointment, dismissal, and exercise of disciplinary control over judicial officials and members and staff of the Council, the control and disbursement of all monies, capital and recurrent, for the judiciary and for the Council as well as the power to deal with all other matters relating to broad issues of policy and administration. Therefore, it is clear that the Honourable the CJN or the NJC has not been conferred any power of directing and or controlling the Heads of other Courts of Nigeria as to what and how to utilize their judicial and or administrative powers or discretion. More so, the issue of sitting or not of courts is an administrative discretion of each of the courts and each court has its own Rules of Courts and the National Assembly or the House of Assembly of each States have conferred the powers to make Practice Direction or Rules of Courts as the circumstance might dictate. Furthermore, section 287 of the Constitution has even stipulated the effect/enforcement of the decision of each of the courts of the Federation within the constitutional status of the courts.

Therefore on this, issue, it is my humble submission, with due respect to the Honourable the CJN and the NJC, that they both either jointly or severally lack the constitutional power to direct any or all of the Heads of Courts to suspend courts’ sittings or in whatever way, Covid-19 as a ground for issuing such directive or not! The discretion as to what to do is therefore an administrative discretion of each of the Heads of Courts. Therefore, each of the Circulars issued by the CJN and or the NJC by reference: NJC/CIR/HOC/11/631, dated the 23^rd day of March, 2020, directing all Heads of Courts across Nigeria to suspend Court sittings for an initial period of two weeks from the 24^th day of March, 2020, and the Circular No.: NJC/CIR/HOC/II/656, dated the 6^th day of April, 2020, directing all Heads of Courts of suspension of courts sitting until further notice are ultra vires of the CJN’s powers and functions, unconstitutional, unlawful, null and void and of no effect to the extent of their inconsistency. See: section 1 of the Constitution.

Furthermore, I humbly urged all Heads of Courts to disregard all the above circulars issued by the Honourable the CJN or the NJC as same are unconstitutional and it is the duty of the courts to uphold the Supremacy of the Constitution! Furthermore, in utilizing their administrative discretion of court’s sittings, I humbly appeal to all the heads of courts to consider lawyers who would be adversely affected by an indefinite suspension of courts’ sittings (and who might not be concerned with urgent matters) and the consequent economic effect on those lawyers in litigation whose sustenance hinges on their representation of clients in courts and are likely to be left with no opportunity for sustenance by making rules or practice direction: that is sensitive to those lawyers; that will put the interest of those lawyers into consideration and that will cater for all and sundry despite the Covid-19 spread’s preventive measures. This I believe will be in the interest of justice and the interest of the bar, especially in such pathetic situation that the Nigerian government has no palliative alternative for those lawyers in private practice while they lockdown their private practice business and while they stay at home as ordered by the Federal Government. The Nigerian Bar Association at the national body has been advised by me earlier to pay lawyers in private practice the sum of fifty thousand naira (N50,000.00) only especially from the 2020 bar practice fee (and other available sources) since the government has ordered the payment of salaries to Public officers/ civil servants.

Finally, I humbly submit without prejudice to all other submissions made above, that the Honourable the CJN and the NJC, that they both either jointly or severally lack the constitutional power to direct any or all of the Heads of Courts to suspend courts’ sittings or in whatever way.

Email: hameed_ajibola@yahoo.com