A Comparative Analysis of the Court Structures in Nigeria and South Africa By Rebecca Emiene Badejogbin Submitted in fulfillment for the requirements for the degree LL.M. (Research) In the Faculty of Law, University of Pretoria June, 2012 Supervisor: Professor Christo J Botha i © University of Pretoria Research Summary This research is centered on carrying out a comparison between the current court systems (with particular reference to structures) in Nigeria and South Africa. A pertinent question that comes to bear in relation to court systems, is whether the current court structure in South Africa should be adopted by Nigeria? The response to this question is vital for the avoidance of the adoption of a court structure by Nigeria basically for the reason of its seeming successful implementation in South Africa without giving credence to other factors like the salient distinctiveness of their experiences and the legal systems that operate in both countries which I addressed in the dissertation. In this dissertation, I specifically concentrated on the various courts currently adopted by each country. In chapters three and four, I indentified and examined all the courts in the current court structure of each country, their composition, role, jurisdictions, operations, and other related means of adjudication vis a vis tribunals, arbitrations and even the Truth and Reconciliation Commission. I carried out a comparative analysis in chapter five between the Nigerian and South African court systems with particular reference to the structures of the courts to indentify the strengths and weaknesses of each structure and the indirect and direct threatened reorganizations i.e the proposed reforms in the two countries and their likely effects and repercussions in the enhancement of justice delivery. Prior to looking at the structures of the courts, I generally looked at the role of the judiciary in both countries and their application of judicial concepts like independence of the judiciary, doctrine of judicial precedents and principles of natural justice. I briefly looked at the history of both legal systems and the evolution of their court structures, the current make up of each legal system, which includes their form of government, democratic set ups and the interrelatedness of each organ of government with the judiciary. The relevance of looking at these legal conceptions is merely to create a background understanding and the appreciation of the makeup ii and contents of the courts in both countries on which the research is centered. In carrying out a comparative analysis of the courts of these two countries I identified their similarities and differences and concluded by making findings and proposals towards a more effective court system for Nigeria. In my conclusion in chapter six, I made observations, suggestions and proffered solutions for the way forward towards achieving a more viable court structure for Nigeria by adopting some strong points from South African court structure. iii Acknowledgments I express gratitude to the following: My supervisor Professor Christo J. Botha for his academic guidance on this study, and the Faculty and library staff for their assistance. The Management of the Nigeria Law School (my employer) for its encouragement to embark on this study. My colleagues and friends for moral and spiritual support during my studies. Specifically I mention M. E. Onoriode, A. O. Ordor, Y. Y. D. Dadem, A. O. Adegoke, S. Osamolu, Rev. & Mrs. S. O. Ojo, V. Lawal and Mr. & Mrs. S. Kputu. Udobong, Getrude & Miriam Idemetor for their support, encouragement, prayers and for providing a home away from home for me in Pretoria without which the success of my studies would have been hindered. My parents and siblings Mr. & Mrs. N. O. Omuh, Oowo, Oche, Onyeche, Oja, Owoicho and Olekwu for their love and support. My husband Toyin (for his immense encouragement) and our little ones T’Oluwanimi and AnretiOluwa without whom the success of this research programme would be dimmed. I embarked on this study during the busiest time of my life - a full time employment with an institution undergoing major overhauls and making twice as much demands on me, and the birth of two babies who were exposed to international travels from tender ages of two months and three months respectively on account of my studies. Ultimately, my profound gratitude goes to my Lord and Savior Jesus Christ. Rebecca Emiene Badejogbin June, 2012. iv Table of Contents Title Page i Research Summary ii Acknowledgements iv Table of Content vi List of Cases x Abbreviations xii Chapter One 1.1 Background to the Research 1 1.2 Literature Review 9 1.3 General Statement of Court Structures 11 1.4 Problem Statement 12 1.5 Thesis Statement and Research Questions 12 1.6 Definition of Terms 12 1.7 Scope of Research 14 1.8 Aims and Justification for Study 15 1.9 Significance of Study 17 1.10 Methodology 17 1.11 Outline of the Dissertation 19 1.12 Conclusion 20 Chapter Two 2.1 The Role of the Judiciary in Nigeria and South Africa 21 2.1.1 Judicial Independence in Nigeria and South Africa: A Brief Overview 23 2.1.2 Compliance with Requirements of Judicial v Independence by the Nigeria and South African Constitutions and Statutes 26 2.2. The Application of the Doctrine of Judicial Precedent by Courts in Nigeria and South Africa 55 2.3. The Rule of Law and the Judiciary in Nigeria and South Africa 58 2.4. Conclusion 64 Chapter Three 3.1 Brief History of South African Legal System 65 3.2 History and Evolution of some Courts in South Africa 68 3.3 Applicable Law for the Creation of Courts and Regulations of proceedings in Courts in South Africa. 71 3.4 The Current Court Structures in South Africa 73 3.4.1 Courts Established by the Constitution 76 3.4.1.1 Courts of High Jurisdiction 76 3.4.1.1.1 The Constitutional Court 76 3.4.1.1.2 Supreme Court of Appeal 77 3.4.1.1.3 High Court 78 3.4.1.2 Courts of Lower Jurisdiction 80 3.4.1.2.1 Magistrate Courts 80 3.4.2 Courts Established by Statutes 81 3.4.2.1 Courts of Superior Jurisdiction 81 3.4.2.1.1 Labour Court and Labour Appeal Court 81 3.4.2.1.2 Special Income Tax Court 83 3.4.2.1.3 Land Claims Court 83 3.4.2.1.4 Commercial Court 84 3.4.2.1.5 Special Consumer Court 84 vi 3.4.2.1.6 Electoral Court 85 3.4.2.1.7 Competition Appeal Court 85 3.4.2.2 Courts of lower Jurisdiction 85 3.4,2.2.1 Divorce Court 85 3.4,2.2.2 Maintenance Court 86 3.4,2.2.3 Children’s Court 86 3.4,2.2.4 Family Court 87 3.4,2.2.5 Short Process Court 87 3.4,2.2.6 Equality Court 87 3.4,2.2.7 Small Claims Court 88 3.4,2.2.8 Courts of Chiefs and Headsmen 89 3.4,2.2.9 Community Court 89 3.4,2.2.10 Child Justice Court 89 3.4,2.2.11 Sexual Offences Court 90 3.4,2.2.12 Special Criminal Court 90 3.4.3 Tribunals 90 3.4.4 Other Methods of Resolution of Disputes outside the Court Structures 92 3.4.4.1 Truth and Reconciliation Commission 92 3.4.4.2 Alternative Dispute Resolution Methods 93 3.5 Conclusion 94 3.6 Chart for South African Court Structure 96 Chapter Four 4.1 Brief Narration of Nigerian Legal System 97 4.2 History and Evolution of Court Structure in Nigeria 101 4.3 Applicable Law for the Creation of Courts and Regulations of proceedings in Courts in Nigeria 105 4.4 The Current Court Structures in Nigeria 108 4.4.1 Courts of High Jurisdiction 110 vii 4.4.1.1 Federal Courts 110 4.4.1.1.1 The Supreme Court 110 4.4.1.1.2 The Court of Appeal 113 4.4.1.1.3 Federal High Court 115 4.4.1.1.4 High Court of the Federal Capital Territory, Abuja 118 4.4.1.1.5 The Customary Court of Appeal of the Federal Capital Territory, Abuja 119 4.4.1.1.6 Sharia Court of Appeal of the Federal Capital Territory, Abuja 120 4.4.1.2 State Courts 122 4.4.1.2.1 State High Courts 122 4.4.1.2.2 Customary Court of Appeal of the States 123 4.4.1.2.3 Sharia Court of Appeal of the States 124 4.4.2 Courts of Lower Jurisdiction 125 4.4.2.1 Magistrate Courts 125 4.4.2.2 District Courts 128 4.4.2.3 Upper Area Courts 128 4.4.2.4 Area Courts 129 4.4.2.5 Customary Courts 130 4.4.2.6 Sharia Courts 130 4.4.3. Specialized Courts 131 4.4.3.1 National Industrial Court 131 4.4.3.2 Coroner’s Court 133 4.4.3.3 Juvenile Court 133 4.4.3.4 Military Court 134 4.4.4 Tribunals 135 4.4.5 Other Methods of Resolution of Disputes outside the Court Structures 137 viii 4.4.5.1 Truth and Reconciliation Commission 137 4.4.5.2 Alternative Dispute Resolution Methods 138 4.5 Conclusion 140 4.6 Chart for Nigerian Court Structure 141 Chapter Five 5.1 Comparative Analysis of the Current Court Structures in Nigeria and South Africa 142 5.1.1 Arrangement of Federal and State Courts 143 5.1.2 Responsibility for allocation of Jurisdictional Limits 145 5.1.3 Jurisdiction over Constitutional Questions 146 5.1.4 Appeals 147 5.1.4 Qualification of Judicial Officers 152 5.1.5 Jurisdiction 154 5.1.6 Geographical Spread of Courts 156 5.1.7 Specialised Courts 158 5.1.8 Customary Court of Appeal and Sharia Court of Appeal 160 5.1.9 Tribunals 161 5.1.10 The Truth and Reconciliation Commission 162 5.1.11 Alternative Dispute Resolution 162 5.1.13 Court Performance 162 5.2 Analysis of the Changes Proposed in Nigeria and South Africa to Enhance Justice Delivery 167 5.3 Conclusion 178 Chapter Six 6.1 Observations, Proposals and the way Forward 180 6.2 Conclusion 191 ix Bibliography 192 List of cases 1 Cranch 137 (1803) A.