We are often puzzled and agitated more often when we are told that judges do not make laws on one hand, and a law is not yet a law until it is interpreted by the courts on the other hand.
Paradoxically, the pronouncements of courts constitute laws yet it is still always argued especially by the proponents of the concept of Separation of Powers that judges do not make laws.
We then quizically ask, does the court make laws?
This is an attempt to place the round peg in the round hole in expounding the functions of the court, justifications for judge-made laws vis-a-vis the courts that are essentially allowed to make laws unquestionably.
The main function of the judicial body is to interprete the laws but in the course of interpreting the laws, the courts make certain pronouncements to which reference is made in subsequent cases provided they are not diametrically discrepant. These decisions and pronouncements of courts are known as case laws by which the lower courts are expected to abide.
Case laws refer to the body of principles and rules of law which over the years have been formulated or pronounced upon by the courts as governing specific legal situations. Case laws are derived from the legal principles decided in a particular judicial matter before a court of unquestionable jurisdiction.
This system of following the earlier decisions of the superior courts by the lower courts is known as stare decisis. It is sometimes referred to as ‘judge-made laws,’ as the law (the precedent) is created by the judges and not essentially by the legislature that is ordinarily charged with the responsibility of making laws for the peace, order and good government of the federation and/or the state.
Curiously still, does the court make laws?
The court makes an adorable attempt to succinctly proffer an answer to this in the case of GLOBAL TRANSPORT OCEANIC S. A v FREE ENTERPRISES NIGERIA LTD where the court held thus: “And although the traditional function of the courts is to interprete, uphold and pronounce what the law is and not what it ought to be, very often, judges make useful comments in the course of interpreting a law which later turns out to influence an amendment to that law”.
Anyone who is schooled by the writings of John Locke (1632-1704) on the concept of Separation of Powers will quite agree that: “It may be too great a temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands power to execute them….”
Locke only anticipated a situation where powers to make laws and execute them would be fused in one organ, this, he vehemently repulsed. However, he never arguably, contemplated an instance where the interpreter of laws would also sit in the course of interpreting the laws, not to only make another laws but to also expand the laws in such a way that it covers the scope which is outside the intendment of the draftmen.
But whether the courts over the time, stick to this antiquated concept that the function of the court is jus dicere (to merely interprete the laws) and not jus dare (to make the laws) is best fully appreciated by different cases wherein the courts did not only interprete the laws but also extended the frontiers of the laws to cover areas which were not hitherto covered by the relevant extant laws.
By way of illustrations, in SHAW v DEPARTMENT OF PUBLIC PROSECUTION , the court created the hitherto unknown offence of conspiracy to corrupt public moral.
In ARGERSINGER v HAMLY , the court despite the absence of a statutory provision, in a unanimous decision created the right to a counsel for every indigent person who is standing trial for a criminal offence.
While in the Nigerian case, on 4th of May 2020, in THE STATE v. OLALEKAN , the High Court sitting at Lagos State took the courage in virtually pronouncing death sentence by hanging on one Olalekan Hameed. Before this case, no virtual hearing had been held in Nigeria, let alone virtual hearing pronouncing death sentence.
Quite understandably, the law does not take notice and does not make any express provision for virtual hearing. Even, the ever indubitable remark of Blackburn, J which is now known as the rule in RYLANDS v FLETCHER was not made pursuant to an existing law or in the course of interpreting any extant law.
The court boldly merely made a new rule known as original precedent. The rationales behind this act of lawmaking of the courts could be that firstly, the Constitution donates or confers the powers of lawmaking on some of the judicial heads of each court in form of delegated legislation .
There may be a contention that such power of making laws is in relation to rules and regulations guiding the court; such an argument may be readily discountened due to the truism that the rules and regulations made by the court for the court are meant to be abided and obeyed by the court thus it becomes unequivocally clear that court must observe the court rules as such, such rules become laws afterall laws even encompass a body of rules!
More so, rule-making may be equivalent to lawmaking though rulemaking does not undergo the technical manner of lawmaking.
Secondly, the act of judicial activism which is different from judicial rascality in achieving substantive justice could also be the reason the courts sometimes ‘usurp’ the power of lawmaking.
Judicial activism is a theory which asserts that the courts can and should go beyond the applicable law to consider broader societal implications in interpreting the laws . About this, the Constitutional Law veteran, Ben Nwabueze submits thus: “Judicial law-making should be openly acknowledged, and its scope purposefully expanded.
The rule of law cannot be made effective by a rigid, doctrinaire insistence on the so-called declaratory theory of the judicial function, which asserts that, in adjudicating a case before it, the court is simply to act according to law which is supposed to exist and to be well-known; its role is to be the somewhat mechanical and passive one of merely declaring the law and applying it to the determination of the case.”
Thirdly, the principle expounded in the case of ASHBY v WHITE that : “If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it, and, indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal…”.
This is usually expressed in Latin maxim as ‘ibi jus ibi remedium’ meaning where there is a right, there is a remedy. This also influences the court to make laws even though it is not within the constitutional function of the court to make laws.
Fourtly, the novelty of the case, on this Lord Denning MR, was reported to have said in PACKER v PACKER that “if we never do anything which has not been done before, nothing will change; the entire world will move while the law remains the same and that will be bad for both world and law.
In an attempt to make innovations and hit a new ground running in the administration of justice, the court sometimes sit on the stool meant for the legislature.
Fifthly, the interference of court in political discombobulation influences the court to robe in legislative gowns. If not so, why is the court eager to show judicial activism in cases relating to civil and political rights of politicians, while the same activism is missing in cases which have impart on economic and social lives of the people? More so, the inability of the legislature to predict the future and make possible legislations which will fundamentally cover every possible future occurrence seems to be another reason the court makes laws or extend the existing laws to cover the emerging issues in cases where no legislations exist or where they do, they are inadequate.
Lastly, the court makes laws to check the excesses of political escapades. Had the politicians been left to frolic about by indecorously removing the heads of executives by the courts, they would have made a mockery of the intendment of the Constitution and even reduce the efficacy of the judiciary to a pawn.
In DAPIALONG V. DARIYE the court held thus: “It is true that section 188(10) of the 1999 constitution ousts the jurisdiction of the courts in respect of the impeachment of a Governor or a Deputy Governor but that must be subject to the rule that the legislature or the House of Assembly complied with all the constitutional requirements in section 188 needed for the impeachment as the courts have jurisdiction to determine whether the said constitutional requirements have been strictly complied with or not”.
Karl N. Llewellyn (1893-1962) was right when he posited that: “What officials do about disputes is the law.” are apposite. For, all the aforesaid are what the officials (the courts) do in disputes. It will be safe to humbly submit that whenever a dispute is brought before the court, it is the interpretation the court gives or how the matter is resolved that is “The Law” because no law is to be called a law until it is interpreted by the the court in that, the court knows the law.
Quite rightly, Oliver W. Holmes said, “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”
On this view, we at once see that it can no longer be asked whether or not it is the business of the court to make laws. What seems relevant is that, what is the hirarchical level of the court making the laws and on what point exactly is the judge making the law?
The exhibitions of the attitude of superior courts are found in the case of OKUMAGBA v EGBE, where the court frowned at judicial legislation by the lower trial court in the following words: “In effect he amended the regulation but amendment is the function of the legislature, and the courts cannot fill a gap which comes to light by altering the words of a regulation to make it read in the way they think it should have been enacted…. the office of a judge is jus dicere, not jus dare, to state the law not to give the law and courts below should not have gone for ‘judicial legislation.”
Also, DALHATU v TURAKI , Per Kutigi, JSC, “It is unfortunate that the trial Judge, deliberately and consciously refused to apply it, because he thought the Supreme Court was wrong. If the Supreme Court was wrong, the trial Judge was also wrong not to have followed the age long established doctrine of stare decisis, otherwise known as judicial precedent. Per Katsina-Alu, JSC said in critical words at page 207 thus: “Judges of the lower courts have no right under any circumstances to ask or advise this Court to change its decision in any case.
Their duty is to follow the principles of law enunciated by the Supreme Court in all cases, and apply them in similar cases before them. The implication of the above is that no matter how wrong the law is, (since it is coming from the Supreme Court), it has to be followed in toto by the lower courts.
Affirmatively, the court (Supreme Court) makes laws which must be unashamedly followed by the lower court.
In ABARIBE V. SPEAKER OF ABIA STATE HOUSE OF ASSEMBLY the respondents commenced removal proceedings on the Appellant who was the then Deputy Governor. The High Court raised the issue of jurisdiction and on further appeal to the Court of Appeal, Pats Acholonu JCA (as he then was) upheld the decision in Balarabe Musa v Kaduna State House of Assembly , struck out the suit and stated that:
“The worrying aspect of this all embracing provision seems to imply that the court may not even look into the issue as to whether the duly laid down procedures were followed” The holding of the learned Justice of Court of Appeal in this case was the truest interpretation of section 188(10) of Constitution of Federal Republic of Nigeria.
The Court of Appeal might not have done justice but the court followed the obvious interpretation of the Law. If this is so, then, can we say the Supreme Court comfortably violated the the provision of section 188(10) of Constitution of Federal Republic of Nigeria to do justice in the case of INAKOJU v ADELEKE when the court held that the court may entertain the procedures of the removal proceeding when subsection 1-9 of 188 of the Constitution are not complied with?
The reason given is that the court only entertains the procedures and not the proceedings?
One singular question that really readily comes to mind is that, is it possible for the Supreme Court to entertain the procedures of removal proceedings without going into the legislative power of removal proceedings?
In effect, the Supreme Court has arguably amended, altered, expanded and expantiated the Constitution even though the decision is against the Supremacy of the Constitution.
Thus, the words of the court remain the Law of the law that a legal practitioner is entitled to his fees ƙ. As a matter of judicial precedent, the decision of the Supreme Court remains binding on lower courts until and unless it is set aside. The meaning of the ouster clause in section 188(10) of the Constitution becomes understandable through the interpretation given by the Apex Court in Nigeria. Perhaps, it is not incorrect to conclude that a law is not yet a law until it is interpreted by the Supreme Court. Rather interestingly and quite ironically in ORJI KALU v. THE FEDERAL REPUBLIC OF NIGERIA where the choice was to choose between quick dispensation of justice and the Supremacy of the Constitution, the Supreme Court agreed with the Appellant, and found that Section 396(7) of Administration of Criminal Justice Act, 2015, was contrary to Section 253 of the Nigerian Constitution since the elevated judge had ceased to be a “judge of that court” and as such the court uphold the Supremacy of the Constitution in this case.
This too, is also Law! Why? It is because the government is not aware and such a decision must be loyally followed by the courts below. In conclusion, it is humbly submitted that though the function of the court is not to make laws, the court does sometimes extend the frontiers of the law when the need arises, and in fact, the court makes laws as the circumstances warrant irrespective of the constitutionality or otherwise of such decisions made by the courts.
However, this latter opinion is much truer about the Supreme Court being the Apex Court because the lower courts have always been warned to desist from lawmaking. This article has inexhaustibly outlined the justifications for judge-made laws and establish that the words of the court constitute the laws in that, a law is not yet a law until it has been interpreted by the courts, not any court but, of course, the Supreme Court.
Court as used in this article refers to the judges or judicial panel that sits on different cases brought before them/it. Although Court refers to judges but judges do not always refer to the courts because the judges may sometimes carry out non-judicial functions.
Section 6(1) and (2) of CFRN, 1999 confers judicial powers on the courts established for the federation and state respectively.
While section 6(5) of CFRN, 1999 enumerates the courts.
One of the earliest and clearest statements of the separation of powers was given by French commentator and political thinker Montesquieu in 1748 when he submitted that: “When the legislative and executive powers are united in the same person, or in the same body of magistrate, there can be no liberty….there is no liberty if powers of judging is not separated from the legislative and the executive… there would be an end to everything, if the same man or same body… were to exercise those three powers.”
See “The Contribution of Courts to Governance, A West African View” by ANE Amissah pg 1-33. Clarendon Press-Oxford 1981.
See also pg 255 of Black’s Law Dictionary, 9th edition, where it is defined as “the law to be found in the collection of reported cases that form all or part of the body of law within a given jurisdiction.”
In full, it is expressed as “stare decisis et non quieta movere” meaning to stand by previous decisions and not to disturb settled matters.
To adhere to the judicial precedents and not to depart from established principles. In WITT AND BUSCH LTD v. DALE POWER SYSTEMS, the court held that “In the absence of statutory authority except where the judgement or order is a nullity, one judge has no power to set aside or vary the order of another judge of concurrent and coordiny jurisdiction.” Ibid ii.
See ss. 4(2) and 4(7) of Constitution of Federal Republic of Nigeria, 1999 as altered.
ATTORNEY GENERAL OF FEDERATION v ATTORNEY GENERAL OF LAGOS (2013) AELR 2047 (SC).
PEENOK INVESTMENTS LTD V. HOTEL PRESIDENTIAL LTD (1982-LCER-2418-SC) (2001) WRN, Musa Hammawa Abba v JAMB (2014) AELR 5476 (CA).
Judicial powers under Section 6 of the 1999 Constitution are not vested in private persons, administrative tribunals or other authorities. The Constitution is clear as to who should perform judicial acts. And since it is the exclusive function of the Judiciary to exercise judicial function, any member of the executive or of an administrative body who interferes with those functions must be prepared to the consequences of such interloping conduct by way of an action by a person aggrieved. Most especially in Law of Tort.
See Donohue v Stevenson (1932) ALL ER REP 1, (1932) AC 562.
R v Ireland  3 WLR 534, R v Constanza  2 Cr. App. R. 492; . (1961)2 ALL ER 446 (1962) AC 220. 407 US 25 (1972).
See The STATE v. OLALEKAN ID/9006C/2019
Damilola Ekpo, ‘Quick Facts about Nigeria’s First Virtual Court Hearing’ (Ventures, 11 May 2020)
<http://venturesafrica.com/quick fact sabout-nigerias-first-virtual-court-hearing/> 1866) L.R 1. Exch 265 at PP.279, 280. The rule as follows: “
“The person who, for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes must keep it at his peril and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.”
Original precedent is a precedent that establishes a new rule of law and usually occurs in cases of first impression where no existing precedent is found.
46(3) of CFRN, , 236, 248, 259, 264, 269, 274, 279 and 284 of the Constitution of Federal Republic of Nigeria, 1999 as altered.
Fundamental Rights Enforcement Procedure Rule, 2009, Center for Oil Pollution Watch v NNPC. See pg 142 of Oxford Dictionary of Law 5th edition.
See: ORAEKWE v CHUKWUKA(2012) 1 NWLR, STOWE v BENSTOWE (2012) 9 NWLR (PT 1306) 450,
Arthur Schlesinger Jr. introduced the term “judicial activism” in a January 1947 Fortune magazine article titled “The Supreme Court: 1947”.
See pg 31 to 32 of Constitutional
Democracy in Africa Vol 3, (The Pillars Supporting Constitutional Democracy) by Ben Nwabueze.
(1703) 92 ER 126. (1953) 2 ALL ER 127.
See AWOLOWO v SHAGARI, (SC.62/1979)  49 (26 September 1979).
OKOGIE v AG LAGOS (1981) 2 NCLR.
BROWN v BOARD OF EDUCATION 347 U.S. 483. (2007) 8 NWLR (pt. 1036) 332. Holmes, Oliver Wendell.
“The Path of Law” (1897) 10 Harvard Law Review 457 at 461.
(1965) 1 ALL NNR 62. SC 31/2003)  7 (04 JULY 2003, ONUOHA v OKAFOR (1983) 14 NSCC 494.
OSSOM v OSSOM (1993)LCN/0157(CA).
(2002) 14 NWLR (Pt 788) 466, (1982) 3 NCLR 463. (2007) 4 NWLR (pt. 1035) Pg. 403.
Section 1(1) and (3) of CFRN, 1999 as altered.
A.G ABIA V. A.G FEDERATION (2006) 16 NWLR (pt. 1005) 265) at 381. (2019) LPELR-47480.
ABOUT THE WRITER JAMIU, Toheeb Aremu under the pseudonym Maítre Jammy, is a 300 Level student of Law at the prestigious Faculty of Law, University of Ilorin (Better by far). He is an astute and active member of the Students’ Union Bar who enjoys spending his ample time learning the diverse areas of Law and other arts such as poetry, spoken words and essay writings. He has keen interest in the areas of Constitutional Law, Criminal Law and other aspects of public laws and private laws.