ABSTRACT

The issue of jurisdiction is very vital in a legal system. It is the practical authority granted to a legal body (the court precisely) to administer justice within a defined field of responsibility. To this end, every established court has its jurisdiction properly spelt out in the law that established it. The jurisdiction of the court may be limited by way of ouster clause. Ouster clause seeks to exclude the jurisdiction of the court. Their provisions rob the courts of jurisdiction. The provisions of section 6(6) (c) of the Constitution of the Federal Republic of Nigeria, 1999, ousts the jurisdiction of the law courts in the enforcement of Directive Principles. The work considers whether the unification approach adopted in the Preamble to the African Charter, the Constitution of the Republic of South Africa and that of India, is not a better option for Nigeria in the enforcement of matters under the Directive Principles. It investigates whether the ouster of jurisdiction of the courts on pre-election matters and impeachment of the executive do constitute an absolute bar on the courts’ jurisdiction. The project recommends that the courts should adopt judicial activism as they review ouster of their jurisdiction, with a view of protecting human right and forestalling arbitrariness in governance. A court should then hesitate to unduly deny itself of jurisdiction on the provision that restriction should be strictly for the promotion of the interest of the state. There are detailed rules in different systems to control or limit or permit such clauses. The project is aimed at examining the major effects of these ouster clauses on the right of access to court in Nigeria.

CHAPTER ONE

INTRODUCTION

1.1              Background of the Study

The duty placed on the courts to maintain balance in the society and to do justice indicates a primary requirement for competence. Thus, the reliance on the courts underscores the fitness and proficiency. In other words, the courts so trusted must have the jurisdiction to entertain, as well as, determine the matter before them. Therefore, the maxim exnihitonihit fit (from nothing, nothing is produced) succinctly captures; it goes without saying that without jurisdiction, any court process is but a nullity. Ouster clauses exist to preclude the jurisdiction of the court. It primarily circumscribes the powers of a body to act in specified matters. Ouster clauses are usually regarded as antithetic to democracy and the judicial system. In Nigeria when ouster clauses are perceived in statutes, the courts usually invoke the Constitution[1]to police their constitutionality to entertain the suits.

It is no longer news that the 1999 Constitution, like its predecessor, the 1979 constitution, contains provisions which literally ousts the jurisdiction of the court of Nigeria from interfering with or intervening in matters relating to the removal of Executive heads by members of the Legislative arm[2]. It is of catholic application in the Nigerian Jurisprudence. The Constitution thus precludes the courts from entertaining suits relating to removal proceedings of the President or the vice-president conducted by the National Assembly under the section 143(10).[3]The provisions in the aforesaid section are mutatis mutandis with those aptly, in section 188(10) [4]which similarly obviates the courts from entertaining suits relating to removal of Governors and Deputy Governors.

Also, non-justiciability of Chapter II[5]means that the court cannot adjudicate on any provision of Chapter II[6], thus such provisions cannot be interpreted. This situation leads to limitation to development and accountability of the government. Non-justiciability presupposes limitations on the organ of government entitled to interpret the constitution which is the judiciary. It further amounts to denial of rights (albeit, the economic rights) of Nigeria citizens who upon infringement of rights as provided in Chapter II[7]ought to seek redress in court of law. Such is simply an aberration since the constitution is not just the Supreme law or grundnorm but also the organic law that must be progressive in order to achieve social justice, development as well as eschew corruption.

1.2              Statement of Problem

Ouster clauses are provisions in the statutes that take away or purport to take away the jurisdiction of a competent court of law. It denies the court the ability to make any meaningful contribution with respect to matters relating to sustainable development and good governance brought before the court. In fact, it seeks deny litigant any judicial assistance in respect of the matter having bearing on sustainable development and good governance brought before it. From independence, Nigeria has experienced witnessed series of intervention (especially the military) which made the concept of Human Rights a mirage. Grave violations of human rights took place during the military regimes. The whole of Chapter II of CFRN 1999(as amended) is non-justiciable by virtue section 6(6)(c)[8], is clearly is an ouster clause which is improper in a democratic regime. The purport of ouster provisions in decrees is clear that is, no court of law or tribunal should look into the matter. The courts are so prevented from looking into. The equity of justiciability of Chapter II of CFRN 1999 can never be over emphasized.

1.3              Scope of the Study

This research work will cover the whole of Nigeria and comparison may be drawn from some other countries like Australia, United Kingdom, Singapore who had their very different but the same view on ouster clause.

1.4       Significance of the Study

The purpose of this study is to examine the impact of ouster clause in Nigeria’s legal system. The contribution of this study to Nigerian society cannot be over emphasized. This research aims to breach the gap in the existing literature on ouster clause especially Chapter II of the CFRN 1999 and to provide a way in which courts must be accessed by citizens and when accessed ought to and demonstrate pro-activism on issues on provision of Chapter II of the CFRN 1999. The study will help legal researchers, students to understand the negative effect of ouster clause and ways in which it could be amended.

1.5 Objectives of the Study

The aims of this research work include;

1.      Unveil the various ouster clauses embedded in the Constitution;[9]

2.      Analyze the impact  of ouster clause in Nigerian Legal System

3.      Bring to knowledge the importance of Chapter II of the CFRN 1999 in the Nigerian Legal System.

4.      Identify the impediment to the enforcement of Chapter II of the CFRN 1999.

5.      This work will not only examine the concept of ouster clause but also takes steps in identifying how it could be amended.

1.6    Research Questions

In attempting to realize the above objectives, answers would be proffered to the following questions:

1.      To what extent has ouster clause affected the Nigeria’s legal system?

2.      What are the adverse effects of ouster clauses on the independence of the judiciary?

3.      What is the judicial attitude towards ouster clause?

4.      What are the impacts or effect of ouster clause in Nigeria’s legal system?

5.      Whether ouster clause impacts on the enforcement of Chapter II of the CFRN 1999?

1.7       Research Methodology

Both primary and secondary sources of law are the basis of this project work. In order to satisfy the objectives of this work, a qualitative research was held. It offers a complete description and analysis of the research subject without limiting the scope of the research. The project is also comparative and analytical in nature.

1.8      Organization of the Study

This work is organized in Five Chapters. Chapter1 deals with the background of the study, scope of the study, etc. Chapter 2outlinesand discusses the Nigerian Legal System, the Nature of the Nigerian Legal System, Main features, Hierarchy of courts in Nigeria and Role of court in Administration of justice. Chapter 3 reviews the Judiciary under the Military Interregnum and examines the historical Imperatives, the Constitutional outline of the Military and Ouster of Courts’ Jurisdiction in Nigeria through the Military Decrees (1966 – 1999). Chapter 4 examines the Judiciary in a Democratic Nigeria; the Constitutional outline of the Judiciary and Ouster of Court Jurisdiction vis-à-vis Chapter two of the Constitution and the connection between the Judiciary and Democracy. Chapter 5 gives the summary, conclusion, makes recommendations.

1.9       Definition of key Concepts

The research project is made up of key concepts. Thus, to appreciate discussion on the research topic, it is important to present a clarification of terms used in this work. The key terms used in this research project includes Ouster Clause, Right, Court, Access, and Effect. Their definition are given below;

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