By Hope Azinuchi Azeru-Oziri
INTRODUCTION
The Nigerian judiciary
refers to the entire structure and machinery for the administration of justice
according to laid down laws, whether written or unwritten in Nigeria.[1] The judiciary is an indispensible
tier of government established under Chapter 7 of the 1999 Constitution as
amended. Section 6 of the Constitution vests judicial powers in the courts of
which the Magistrate Court is one. The issue of whether or not a
magistrate is a judicial officer has been a subject of debate amongst jurists
and authors. While majority argue that a magistrate is not a judicial officer
and as such cannot be denied right of audience in any court of law; others are
of the view that a magistrate is a judicial officer. The crux of this paper is
to establish the fact that magistrates are judicial officers and should be
denied right of audience in any court of law.
Meaning of Judicial
officer:
The Black’s Law
Dictionary,[2] defines judicial officer as a judge
or magistrate. A person who is charged with upholding the law and administering
the judicial system is a judicial officer. A judicial officer is a person with
the responsibilities and powers to facilitate, arbitrate, preside over and make
decisions and directions in regard to the application of the law. The Code of
Conduct for Judicial Officers states: in this Code, the term “Judicial
Officers” shall mean a holder of the office of Chief Justice, a Justice
of the Supreme Court, the President or Justice of the Court of Appeal, the
Chief Judge or Judge of the Federal High Court, the President or Judge of the
National Industrial Court, the Chief Judge or Judge of the high Court of a
State and of the Federal Capital Territory, Abuja, the Grand-Kadi or Kadi of Sharia
Court of Appeal of a State and the Federal Capital Territory, Abuja,the
President or Judge of the Customary Court of Appeal of a State and of the
Federal Capital Territory Abuja and every holder of similar office in
any office and Tribunal where the duties involves adjudication of any dispute
or disagreement between person and person (natural or legal) or person and
Government at Federal, State, and Local Government levels including the Agent
and privies of such any person. (Emphasis mine) Section
318(1) of the 1999 Constitution as amended defines a judicial officer
to include the Chief Justice of Nigeria, a Justice of the Supreme
Court, the President or Justice of the Court of Appeal, the Chief Judge or
Judge of the Federal High Court, the President or Judge of the National
Industrial Court, the Chief Judge or Judge of the high Court of a State and of
the Federal Capital Territory, Abuja, the Grand-Kadi or Kadi of Sharia Court of
Appeal of a State and the Federal Capital Territory, Abuja, the President or
Judge of the Customary Court of Appeal of a State and of the Federal Capital
Territory Abuja. Section 1(1) of The Criminal Code Act[3] also defines Judicial
officers to include a magistrate.
Functions of judicial
officers:
1. To compel the attendance of persons to testify
in a case therein;
2. To compel obedience to its judgment;
3. To preserve and enforce order in its immediate
presence;
4. Hear cases;
5. Decide questions of law etc.
Judicial officers and right of audience in
court in Nigeria:
In Nigeria, a judicial
officer is denied right of audience in court during and after his tenure as a
judicial officer. Section 292(2) of the Constitution
provides that any person who has held office as a judicial officer shall not
on ceasing to be a judicial officer for any reason whatsoever thereafter appear
or act as a legal practitioner before any court of law or tribunal in Nigeria. Similarly, Rule 6(3) of
the Rules of Professional Conduct for Legal Practitioners, 2007 provides
that a
judicial officer who has retired shall not practice as an advocate in any court
of law or judicial tribunal in Nigeria. In the case of Hon. Justice Atake v.
Chief Afejuku[4] the
Supreme Court held that a retired judicial officer cannot practice as a legal
practitioner in Nigeria. This is also the position in England as judges are not
permitted to return as advocates when they retire. In India, a retired Supreme
Court judge cannot argue in any court in India, but a retired High Court Judge
is only prohibited from practicing law in a State where he has been a High
Court Judge. The reason for this restriction is simply to prevent partiality,
bias and prejudice in the administration of justice. Ian Binnie, a Justice of
the Supreme Court of Canada stated that retired judges should be prohibited
from returning to court as counsel altogether. It is difficult to imagine any
exceptional circumstance where the appearance of a retired judge as counsel
would not taint a litigant’s perception of impartiality. Retired judges should
be permitted to provide strategies and practical advice but should be kept out
of court rooms where justice must be seen to be done.
Retired Magistrates and Right of Audience in
Court:
The Magistrate Court is a
court of summary jurisdiction. The civil jurisdiction of the Magistrates court
varies in Nigeria. In Lagos State, the civil jurisdiction of Magistrates’ court
is N10 Million as provided in Section 28 of
the Magistrates’ Court Law of Lagos State, 2009. In Rivers State, the civil
jurisdiction of Magistrates’ Court is N5 Million.[5] A
magistrate is a judicial officer with strictly limited jurisdiction and
authority. [6].
Magistrates are judicial officers of the State. The jurisdiction of magistrate
court is guided by its enabling law,[7] for
example Magistrate Court Law of Rivers State. By virtue of Section 6(4)(a) of
the 1999 Constitution (as amended) the National Assembly and the State Houses
of Assembly have the power to establish courts with subordinate jurisdiction to
that of a High Court to wit:- magistrate court. Section 6(4) provides
as follows: Nothing is the foregoing provisions of this section shall be
construed as precluding:- (a) The National Assembly or any House of
Assembly from establishing courts, other than those to which this section
relates, with subordinate jurisdiction to that of a High Court. Although
the Constitution did not expressly mention magistrates as judicial officers
in Section
318; it
did expressly empowers the National Assembly and State Houses of Assembly to
establish a Magistrate Court in Section 6. One paramount guiding
principle in the interpretation of statute is that the intention of the
legislature predominates.[8] A
statute must be read holistically; not in isolation.
In Liverpool Borough Bank
v. Turner,[9] Lord Campbell L.C. stated inter alia: it is the duty of the
courts of justice to try to get at the real intention of the legislature by
carefully attending to the whole scope of the statute to be construed. The
courts are entitled and indeed bound when construing the terms of any provision
found in a statute to consider any other parts of it that throw light upon the
intention of the legislature which may serve to show that the particular
provision ought not to be construed as it would be if considered alone apart
from the rest of it.[10] Section 318 of
the 1999 Constitution should be read in conjunction with Section 6 to
arrive at the true intention of the legislature. To say that a magistrate is
not a judicial officer will amount to impeding the intention of the
legislature. A Magistrate Court is a creation of the Constitution because the
power to establish Magistrates Courts is derived from the Constitution. Looking
at the jurisdiction of Magistrates’ Court, will it be correct to say that a
person who can impose fourteen years imprisonment on a convict and also hear a
suit where the claim does not exceed N10 million (as in the case of Lagos
State) is not a judicial officer? Clearly, this was not the intention of the
legislature. It is unequivocally stated that the 1999 Constitution as amended
as well as the Criminal Code Act and The Code of Conduct for Judicial Officers
recognize magistrates as judicial officers, therefore the restriction placed on
judicial officers in Section 292 of the Constitution and Rule 6 of
the RPC is also applicable to retired magistrates.
[1] Chukuma
A.J. Chinwo, The Nigerian Judiciary in Contemporary Times: A Critical Review,
page 5.
[2] 8th edition,
page 1118
[3] Cap
C38, LFN 2004
[4] (1994)
9 N.W.L.R. part 368 at page 379
[5]See Section 14,
Rivers State Magistrate Courts Law, No.2, 2004
[6] Black’s
Law Dictionary, 8th edition, page 970
[7]Okafor v.
Akanonu (2002) 3 N.W.L.R. part 753 page 112
[8]Utih v. Onyivwe (1991)
1 N.W.L.R part 166, page 166
[9] (1860)
De G.F.&J. 502 at 507-508
[10]Fasakin v.
Fasakin (1994) 4 N.W.L.R. part 340, page 597]]>
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