Need for judicial federalism in Nigeria

An aspect of our federalism dysfunction, which hardly features in the federalism reform debate, is the unitarist structure of our judicial hierarchy. The system is overdue for change. 

By the current arrangement, all matters – I mean all – potentially end up in the Supreme Court! What then is the value of the distribution of power system established by our (un)federal Constitution? 

We need to reform the court hierarchy by establishing state court of first instance (High Court) and state court of appeal (by whatever name called) with jurisdiction to exclusively adjudicate upon matters of state legislative powers. Except in respect of strict constitutional questions bordering on fundamental rights, no matter within state legislative powers should proceed beyond state appellate court. 

The Supreme Court, as the – Court of the Federation – should be conferred jurisdiction to determine federal appellant matters (from the Federal High Court established as a court of first instance to adjudicate only matters concerning federal legislative powers); and upon appeals on fundamental rights coming from the state appellant court (this, in addition to power to adjudicate similar matters coming from the Federal High Court). 

The Supreme Court must reserve powers to control its docket. That is, the Supreme Court should at all times possess the prerogative to determine which appeals to hear or not to hear, irrespective of their nature. This is the cross-country experience of most apex courts globally. 

In essence, I advocate only one level of appeal, except on – fundamental right- matters coming from the states; in which case, the Supreme Court may exercise jurisdiction upon appeal from a state court of appeal. Except we institute these reforms, the Supreme Court will remain inundated with all kinds of appeals and the benefits of judicial federalism will continue to elude us. 

The first of such benefits is the decongestion of the Supreme Court docket. This has defied solution as the Supreme Court of Nigeria lacks the discretion to determine what matter to sit over. Currently, the Supreme Court must sit as a court to determine whether to hear or not to hear an appeal. My proposal is that such a decision should be taken administratively, guided by the constitutional provision which limits what matter should and should not be heard by the court. 

The second major benefit of my proposal is that the power distributed to the states will have meaning, with the result that matters of state legislative powers can be expeditiously decided since such matters will terminate at the court of appeal of each state. Currently, every matter from the state courts (Magistrate Courts, State High Court, etc) potentially ends up in the Supreme Court. 

My proposal is without prejudice to the existing original jurisdiction of the Supreme Court to hear and determine disputes between the Federal Government and the states and between the states.

Prof. Omoregie is a Senior Advocate of Nigeria (SAN).