THE NATURE OF THE JUDICIAL PROCESS IN ANGLO-NIGERIAN JURISPRUDENCE

THE NATURE OF THE JUDICIAL PROCESS IN ANGLO-NIGERIAN JURISPRUDENCE

Author by Mr. Babatunde Adeyemi

Language: English

Abstract

Much jurisprudential ink is spilled over the inner workings of the judicial system globally. This article examines the judicial process in Anglo-Nigerian horizon with a view to determining what the functions of the Judge is, in reality, and to see how these functions were accomplished. The separation of the judicial form, from other forms of constitutional power, rests on the need to preserve judicial independence and prevent arbitrary power by those in government, in line with Montesquieu doctrine of separation of power. In the performance of this function, a number of interrelated issues come to the fore, like judicial discretion; public policy; judicial precedent; ratio decidendi; stare decisis versus res judicata; distinguishing and overruling; judge-made law; the gap-controversy; judicial activism and judicial passivity; among others. Under the umbrella of judicial activism and passivity, case law authorities in Nigeria were found to oscillate between one end and the other. The merit, or otherwise of ‘judicial creativity’ was examined and it was apparent that there is need for a balance to avoid ‘judicial recklessness’ which can arise if judges were to be given unfettered power to exercise their discretion in cases before them, or judicial trepidity as a consequence of rigid adherence to precedent, or literal interpretation, that may result in injustice to those who seek refuge in the altar of justice.


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