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The Existentiality of the Judiciary

The Existentiality of the Judiciary

By Asanawa Ghide kalava.

In one of his judgment, Kayode esho JSC , is reported to have stated that ” there is no justification for the existence of the judiciary, except in his existence for the defence of the citizen to put his views across with all potency, for him to vent his feelings and his success in the public for him to feel and breathe the air of freedom around him.


The Judiciary is commonly and rightly referred to as the last hope of the common man. This pre-supposes that it guarantees equal access to Justice and equity; and equally ensures that the rights of citizens are adequately accommodated, and judgements handed down in accordance with the dictates of the law and facts presented to the Court. By the virtue of section 6 of the 1999 constitution as amended; Courts are recognized and renowned as the hallowed chambers of justice. The 1999 Constitution (As Amended) created three arms of government – the executive, the legislature and the judiciary. By the provision of Section 6 of the 1999 Constitution (As Amended), judicial powers are vested in the courts. Courts are authorized by law to exercise jurisdiction at first instance and on appeals on all actions and proceedings relating to matters between persons, or between government or authority and any person in Nigeria to determine any question as to the civil rights and obligations of that person.
The Judiciary is the third organ of the government. It has the responsibility to apply the laws to specific cases and settle all disputes. The real ‘meaning of law’ is what the judges decide during the course of giving their judgements in various cases. From the citizen’s point of view, Judiciary is the most important organ of the government because it acts as their protector against the possible excesses of legislative and executive organs. Role of Judiciary as the guardian-protector of the constitution and the fundamental rights of the people makes it more respectable than other two organs. By the virtue of section 46 of the 1999 constitution as amended.
The statement attributed to Kayode Esho emphasizes the crucial role of the judiciary in defending citizens’ rights and ensuring their freedom of expression. Let’s break down the statement and discuss its implications.

“There is no justification for the existence of the judiciary, except in his existence for the defense of the citizen…”

This part highlights the primary purpose of the judiciary: to safeguard and protect the rights and interests of the citizens. The judiciary acts as a check and balance on the executive and legislative branches of government, ensuring that the rights of individuals are upheld and that justice is served.

“…to put his views across with all potency, for him to vent his feelings…”

This part emphasizes the importance of freedom of expression. The judiciary plays a vital role in providing a platform for individuals to express their opinions, views, and concerns without fear of reprisal. By protecting freedom of speech, the judiciary enables citizens to participate in public discourse and contribute to shaping the society they live in.

“…and his success in the public for him to feel and breathe the air of freedom around him.”

Here, the statement suggests that the judiciary ensures that citizens experience and enjoy the tangible benefits of their rights and freedoms. It implies that the judiciary’s existence is justified by its ability to secure justice and create an environment where individuals can freely exercise their rights, fostering a sense of freedom and autonomy.

In summary, Kayode Esho’s statement underscores the crucial role of the judiciary in defending citizens’ rights, enabling them to express their views, and ensuring they experience the tangible benefits of their freedoms. The judiciary’s existence is justified by its commitment to upholding justice and providing a platform for citizens to participate actively in society.
Fundamental rights under Chapter IV of the Constitution are viewed as inhering in every human being and exalted above any other rights available to human beings. Accordingly, they are recognized in individual countries as well as global institutions like the United Nations through charter. Kayode Eso, JSC in Ransome-Kuti vs. The Attorney General Federation (1985) 2 NWLR (PT. 6) 211, said: “… It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilized existence”.
In an application for the enforcement of fundamental rights, the applicant may include the following8;
a) Anyone acting in his own interest;
b) Anyone acting on behalf of another person;
c) Anyone acting as a member of, or in the interest of a group or class of persons;
d) Anyone acting in the public interest; and
e) Association acting in the interest of his members or other individuals or groups.
Notwithstanding the above, the law is remarkably settled that action for the enforcement of fundamental rights, cannot be jointly maintained. They are very personal in nature. In Udo v. Robson & Ors, the 1st, 2nd and 3rd Respondents were the applicants for the enforcement of their fundamental rights and that their story clearly showed that the violation of their rights allegedly took place in one place at the same time and in the same circumstance. The Court stated that here the act complained of is the arrest and detention without bail and without an arraignment in Court for any known offence. The Court held that “. I still believe that in the circumstance that the Court in the interest of justice and convenience can allow the parties to file their complaint together for the enforcement of their fundamental rights. However, since this provision is not in the rules, the Court are having difficulty in taking it up”. The Court in Udo’s case based its decision on the case of Kporharor & Anor. V. Yedi & Ors.
Where the Court of Appeal relying on the wordings of Section 46(1) of the 1999 Constitution, stated that the use of the word “any” denotes singular and does not admit pluralities of any form. It was thus held that fundamental rights are individual rights and not collective rights and any application filed by more than one person to enforce a right under the Fundamental Rights (Enforcement Procedure) Rules is incompetent and liable to be struck out. Also, in the case of Rtftcin v. Ikwechegh it was held among others that “if an individual feels that his Fundamental Rights or Human Rights has been violated, he should take out action personally for the alleged infraction as right of one differs in content and degree from the complaint of the other”.

The role of the judiciary in protecting human rights in relation to Nazism in Germany during the time it was in power (1933-1945) is a complex and controversial topic. While some judges and legal professionals in Germany actively supported and implemented Nazi policies, others struggled to uphold justice and human rights under the oppressive regime. It is important to note that the judiciary’s response to Nazism varied significantly, and not all judges can be painted with the same brush.

Under the Nazi regime, the judiciary was subject to significant pressure and interference from the Nazi Party. The independence of the judiciary was gradually eroded, and many judges were removed or replaced with individuals loyal to the Nazi ideology. The judiciary became an instrument of the Nazi state, facilitating and legitimizing its policies.

Some judges willingly embraced Nazi principles and participated in the persecution of various groups, including Jews, political dissidents, homosexuals, and others deemed undesirable by the regime. They issued judgments and imposed sentences that violated fundamental human rights, such as due process, equality before the law, and the right to a fair trial. The judiciary, in these cases, actively contributed to the erosion of human rights and the atrocities committed under the Nazi regime.

However, it is also important to acknowledge that not all judges complied with the Nazi regime’s directives. Some judges resisted and sought to protect human rights to the best of their abilities within the constraints imposed upon them. They sometimes used legal loopholes or applied the law in a more lenient manner to shield individuals from persecution. These judges were in the minority and faced significant risks themselves, as the Nazi regime punished any perceived resistance or deviation from its ideology.

Following World War II, many former Nazi judges and legal professionals faced trials for their complicity in human rights abuses. The Nuremberg Trials, held from 1945 to 1946, prosecuted prominent Nazi leaders, including judges, for their roles in the Holocaust and other war crimes. These trials aimed to establish individual accountability and emphasize the importance of protecting human rights, even in times of extreme political ideologies.

The experience of Nazi Germany serves as a stark reminder of the dangers of judicial compliance with an oppressive regime and the crucial role of an independent judiciary in safeguarding human rights. It underlines the importance of upholding the principles of justice, equality, and due process, even in the face of immense pressure and adversity.

Chapter 4 of the Constitution of Nigeria, titled “Fundamental Rights,” contains a comprehensive set of rights and freedoms guaranteed to every Nigerian citizen. These rights are essential for promoting individual liberties, social justice, and the overall well-being of the Nigerian society. Here is an analysis of the rights contained in Chapter 4:

1. Right to Life (Section 33): This section guarantees the right to life, stating that no one shall be deprived of their life except in the execution of a criminal offense for which the punishment is death. It prohibits extrajudicial killings and protects individuals from arbitrary deprivation of life.

2. Right to Dignity of Human Person (Section 34): This section prohibits torture, inhuman or degrading treatment. It emphasizes the protection of an individual’s dignity and prohibits any form of cruel, inhumane, or degrading treatment.

3. Right to Personal Liberty (Section 35): This section protects individuals from arbitrary arrest and detention. It states that no person shall be arrested or detained without being informed of the reason for their arrest and the right to challenge the legality of their detention.

4. Right to Fair Hearing (Section 36): This section guarantees the right to a fair hearing in both criminal and civil cases. It includes the right to be informed promptly of the charges against you, the right to legal representation, the right to call and examine witnesses, and the right to be heard in court.

5. Right to Private and Family Life (Section 37): This section protects the privacy of individuals and their family life. It prohibits the search of a person’s home, property, or correspondence without a lawful reason or warrant.

6. Right to Freedom of Thought, Conscience, and Religion (Section 38): This section guarantees the freedom of thought, conscience, and religion. It ensures that every person has the right to hold and express their beliefs, practice any religion of their choice, and change their religion.

7. Right to Freedom of Expression and the Press (Section 39): This section guarantees the freedom of expression, including the freedom to hold opinions and receive and impart ideas and information. It also protects the freedom of the press, ensuring that the media can operate independently and without undue interference.

8. Right to Peaceful Assembly and Association (Section 40): This section guarantees the right to peaceful assembly and association. It protects the right of individuals to gather and protest peacefully, as well as the right to form and join associations or political parties.

9. Right to Freedom of Movement (Section 41): This section guarantees the freedom of movement within Nigeria. It ensures that every citizen has the right to move freely throughout the country, reside in any part of Nigeria, and leave the country.

10. Right to Freedom from Discrimination (Section 42): This section prohibits discrimination on the grounds of ethnicity, religion, sex, or political affiliation. It ensures that all citizens are equal before the law and have the right to equal protection and treatment under the law.

11. Right to Acquire and Own Property (Section 43): This section guarantees the right to acquire and own immovable property anywhere in Nigeria. It protects individuals’ property rights, subject to lawful provisions.
These rights are considered fundamental and are enforceable by the courts in Nigeria. They serve as a critical framework for safeguarding individual freedoms, promoting social justice, and ensuring the rule of law in the country.


In Nigeria, the judiciary plays a crucial role in ensuring the enforcement of fundamental rights. The judiciary interprets and applies the law, including the provisions related to fundamental rights, and has the power to protect and enforce those rights through various mechanisms. Here are some ways in which the judiciary can ensure the enforcement of fundamental rights in Nigeria, along with relevant decided cases:

1. Judicial Review: The judiciary exercises the power of judicial review to ensure that laws and actions of the government are in conformity with the Constitution and do not violate fundamental rights. This power enables the judiciary to strike down laws or actions that are inconsistent with the Constitution.

Case Example: In the case of Attorney General of Ondo State v. Attorney General of the Federation (2002), the Nigerian Supreme Court held that the constitutional provision guaranteeing the right to freedom of movement prohibits the imposition of any form of taxation or levy on people moving across state boundaries. The court struck down a law that imposed a road tax on non-indigenes traveling within Ondo State.

2. Writ of Habeas Corpus: The judiciary can issue a writ of habeas corpus to protect the personal liberty of individuals who have been unlawfully detained or arrested. This writ compels the detaining authority to produce the detained person before the court to determine the legality of their detention.

Case Example: In the case of Onyegbula v. State (2018), the Court of Appeal of Nigeria emphasized the importance of the writ of habeas corpus in protecting fundamental rights. The court ordered the release of the petitioner who had been unlawfully detained beyond the maximum period allowed by law.

3. Public Interest Litigation: The judiciary encourages public interest litigation, which allows individuals or groups to bring cases on behalf of marginalized or disadvantaged communities. This mechanism enables the judiciary to address systemic violations of fundamental rights and promote social justice.

Case Example: In the case of SERAP v. Federal Government of Nigeria (2001), the Nigerian Supreme Court recognized the locus standi (legal standing) of the Socio-Economic Rights and Accountability Project (SERAP) to sue on behalf of the Nigerian people. This decision expanded access to justice and allowed SERAP to challenge corruption and human rights violations through public interest litigation.

4. Remedies and Damages: The judiciary provides remedies and damages to individuals whose fundamental rights have been violated. This includes the awarding of compensation or restitution to the aggrieved parties as a means of redress for the violation of their rights.

Case Example: In the case of Gani Fawehinmi v. Nigerian Bar Association (2007), the Nigerian Supreme Court held that the unlawful seizure of a person’s passport violated their fundamental rights to freedom of movement. The court awarded damages to the petitioner as compensation for the violation of his rights.

5. Judicial Activism: The judiciary can engage in judicial activism by adopting an expansive and progressive interpretation of fundamental rights, which strengthens their protection and enforcement.

Case Example: In the case of A.G. Abia State v. A.G. Federation (2002), the Nigerian Supreme Court declared that the rights to health, water, and education were fundamental rights derived from the right to life. This decision expanded the scope of fundamental rights in Nigeria and emphasized the government’s duty to ensure access to these basic necessities.

By exercising these powers and mechanisms, the judiciary in Nigeria can effectively ensure the enforcement of fundamental rights and safeguard the constitutional rights of individuals. These cases demonstrate the role of the judiciary in interpreting and enforcing fundamental rights, thereby strengthening the rule of law and protecting the rights of Nigerian citizens.
The judiciary through the bar, the bench and advocacy groups are key to this constant struggle for protection and enforcement of inalienable human rights.
Legal practitioners must be seen to be at the top of their game in their representation of litigants. The Courts must also be willing to water down technicalities in a bid to do justice. The merits of each case must be considered on its own peculiarities. Borrowing a hint from the decision of the Court of Appeal in Iheme v. Chief Of Defence Staff & Ors “a situation where an applicant will not have any Court of law to seek redress for the violation of his fundamental right definitely cannot be the intendment of the law makers in view of the common law principle that where there is a wrong there must be a remedy.”

About the Author

My name is Asanawa Ghide Kalava, a 300 level law student of Edo State University Faculty of Law, Department of Public and International Law. I have a keen interest in legal writing. I started writing in my first year at the university. Due to my passion for legal research and advocacy, I became one of the counsel at Justice Chamber winning an inter-chamber moot court competition in my first year. I have leadership qualities. I was nominated as a member of the Electoral Committee LAWSAN EDSU chapter in my first year and now the General Secretary of the Electoral Committee LAWSAN EDSU chapter. I have deep quest for knowledge in many arrears and this made to acquire certification in Graphic Design in 2023, Project certificate of the learned minds virtual courses and mentorship 2022, certificate of completion and active participation in the LIFIN mentorship and internship program 2022, certificate of active participation in a virtual training on advocacy and peace building 2022, certificate of participation of the BABU writing Masterclass sessions on the methodology of legal research , article and project writing 2022, certificate of participation of the BABU virtual moot and mock masterclass training 2022, certificate of participation of the BABU webinar on the rudiment of the client briefing in legal practice, certificate of participation in the SLAN law virtual class 2022.
I recently attended the just concluded Harlem Solicitors-5-days online webinar (telecommunication masterclass) 2023. I was awarded the most punctual in the set of 2021/2022 academic session last year. I also have a keen interest in Contract law, Human Right Law and Alternative Dispute Resolution (ADR).


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