A PAPER PRESENTED BY JUSTICE M. I. SIRAJO AT THE ANNUAL NATIONAL CONFERENCE OF MAGISTRATES’ ASSOCIATION OF NIGERIA AT KADUNA ON THE 29TH DAY OF JULY, 2004
PREAMBLE
From the draft programme made available to me, Justice J. H. Sankey was to be the presenter of this paper. At noon on the 23rd day of July, 2004, Justice Sankey approached me with a request to prepare and present the paper on her behalf as she was indisposed due to ill-health. I was transfixed. My initial reaction was to reject the request for the following reasons:- (1) the time was too short for me to prepare any meaningful paper, and (2) I was working on another paper to be presented on the 4th day of august, 2004 during the law week of the NBA, Jos Branch. But on the immediate realization that the papers is meant for this particular audience, members of my primary constituency, this assemblage of legal minds who preside over the bulk of the cases in our law courts coupled with the very high esteem with which I hold my learned brother, Justice J. H. Sankey, I decided to accept the challenge despite the short notice and my other engagements.
It is not my intention in this paper as the topic prima facie seems to suggest, to provide an answer with mathematical correctness to the vexed question of the proper status of Magistrates in the judicial scheme. Rather, I will attempt to provide a general framework that will provoke purposeful contribution and comments by the participants. In so doing, I will also express my views and share my thoughts with you so that together we may fathom an answer to the thorny and recurring question of the classification of the office of a Magistrate.
THE MAGISTRATE
A Magistrate is an officer of court designated to preside over and determine criminal and civil matters. He is an official who acts as a judge in the lower courts of law.1 In another sense, the word “Magistrate” is used to describe the highest ranking official in a government, such as the king in a monarchy, the president is a republic or the governor in a state.2 A Magistrate is a judicial officer with limited jurisdiction and authority, often on the local level and often restricted to criminal cases.3 For the purpose of this paper a Magistrate is an official of the State Judiciary or the Judiciary of the FCT who presides over a court with limited jurisdiction over criminal and civil matters. His duties ranges from criminal trial for certain defined offences to adjudicating in limited civil causes and matters. He is also an administrator in the sense that he supervises his subordinate staff. He interprets the law and punishes violators. He also adjudicates in disputes between parties, be they individuals, groups, corporations or government. The nature of the offences triable and the type of civil causes and matters adjudicated upon by a Magistrate are determined by the grade of the Magistrate so also is the type and severity of punishment to be imposed on offenders who are found guilty. But whatever be the grade of a Magistrate, his primary duty is the performance of judicial function.
As stated in the preceding paragraph, Magistrate Courts are state courts established by the respective states and the FCT. The Courts are not direct creation of the Constitution though their establishment is allowed by section 6(4) of the Constitution of the Federal Republic of Nigeria, 1999. In the same vein the mode of appointment of the officers that preside over these courts (i.e. the Magistrate), their tenure as well as remuneration are not provided for in the constitution.
In the Northern States, Magistrates’ Courts are established as criminal courts by the Criminal Procedure Code Law4 and as civil courts known as District Courts by the District Courts Law5. In his criminal jurisdiction, the presiding officer of a Magistrate Court in the Northern states is called a “Magistrate” but is referred to as “District Judge” in his civil jurisdiction and his Court, a “District Court”. Even though several states in the Northern part of the country have now promulgated their Magistrate and District Courts laws, the provisions of these laws remains substantially the same with the provision of the Criminal Procedure Code Law and the District Courts Law6 which, for example, are still the applicable laws in Plateau State. In the Southern part of the country, however, this dichotomy in the nomenclature of a Magistrate between his civil and criminal jurisdiction is non-existent. Whether presiding over a criminal or civil matter the nomenclature of a magistrate or that of his court does not change. He is for all purposes referred to as “Magistrate” and his court “Magistrate’s court”..
The appointment of a qualified person to the office of a Magistrate in a state is the responsibility of the state judicial service commission. Similarly, appointment of magistrates for the FCT falls within the ambit of the judicial service committee of the FCT7. The powers of disciplinary control as well as dismissal are also vested in the judicial service commissions. For the avoidance of doubt paragraph 6(c) of part II of the third schedule to the 1999 constitution provides in reference to the state judicial service commission as follows:-
“The commission shall have power to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary Courts and all other members of the staff of the Judicial service of the state not otherwise specified in this constitution”.
I need to add that the judicial service commission is one of the only three constitutionally established Executive bodies whose composition and powers are clearly spelt out therein. Finally on this segment, I need also to state that under the various laws creating Magistrate courts, the chief judges are vested with powers to delineate the territorial jurisdiction of each court.
PUBLIC SERVANT?
Historically, the appointment of Magistrates like all other appointments in the public service was done by the public service commission. Now, that function has been taken over by the JSC. By the nature of his onerous duties and responsibilities there is no doubting the fact that a Magistrate discharge a public function. He it is whom, upon proof, punishes societal miscreants and adjudicate between disputing parties. Without the Magistrate and his co-travellers in the daunting task of adjudication and interpretation of laws peace will flee and the society will be open to anarchy and subsequent disintegration. By the performance of this function he is a strong pillar for societal peace and harmony.8
In defining the public service of the federation and of the state the constitution categorized, inter alia; members of staff of all the courts established by the constitution or by an Act of the National Assembly or by the law of the House of Assembly of a State as belonging to the public service of the federation or the public service of a state, as the case may be. Magistrates are omitted in the categorization. However the Code of Conduct for Public Officers contained in the fifth schedule to the 1999 Constitution defines a public officer for the purposes of the code of conduct to include Chief Justice of Nigeria, Justice of the Supreme Court, President and Justices of the Court of Appeal, all other judicial officers and all staff of Courts of Law9. Therefore, for the purposes of the code of conduct a Magistrate is a public officer, nay a public servant. That is to say, the same constitution that did not classify a Magistrate as belonging to the public service of the federation or of a state now recognized or classified him as a public officer for the purposes of observance of certain ethical conduct while in service and even after retirement.
Query: are there conflicts in the Constitutional provisions under reference? Public service is a service provided or facilitated by the government for the general public’s convenience and benefit and as a corollary, the provider of such service is a public servant. As posited herein before, the duties performed by Magistrates are not only for the public’s convenience and benefit but also for the peaceful co-existence of the society. Magistrates are also employees of government and are remunerated and catered for from the public funds. Are these not sufficient justification to classify Magistrates as public servants? But what about their primary duty- the performance of judicial functions? Some food for thought!
CIVIL SERVANT?
A civil servant is a person who works in the civil service and civil service comprises of government departments except the Armed Forces and those who work for them. Civil servants are employees of government and are subject to the direction and control of the government ministry or department that employs them. Under the 1999 Constitution the Federal and States Civil Service Commissions are vested with the powers to appoint, dismiss and exercise disciplinary control over persons in the respective employments of the Federal Civil Service and State Civil Service. The powers conferred on the federal civil service commission is without prejudice to the powers vested in the president, the National Judicial Council and the Federal Judicial Service Commission among other federal executive bodies. As for the State Civil Service Commissions the power vested in them is without prejudice to the powers vested in the governor and the State Judicial Service Commission10. We have earlier on seen that it is the responsibility of the State Judicial Service Commission to appoint, dismiss and exercise disciplinary control over Magistrates. Similar power is vested in the judicial service committee of the FCT with respect to Magistrates in the FCT. Does this fact preclude the Magistrate from being classified as a civil servant? From the definition of the civil servant given above and the fact that the powers of the civil service commission is without prejudice to the powers vested in the judicial service commission, one would be tempted to answer this question in the negative. Besides, there are several similarities in the scheme of service governing employees of civil service commission and those of the judicial service commission. For example, both employees are employed on probation and such employments are only confirmed after the successful expiration of the period of probation. They are both employed on salary scale depending on qualification and experience at the point of entry and promotions to the next grade are subject to satisfactory performance after the officer has spent a number of years on the existing grade. The performance of officers in both the civil and judicial services are assessed via the instrumentality of the Annual Performance Evaluation Report (APER). The tenure of office as well as the gratuity and pension rights of employees of the civil service commission are equally applicable to employees of the judicial service commission. Nonetheless, to conclude outrightly that Magistrates are civil servants simpliciter undermines the very essence of their appointment – the performance of judicial functions. Conversely, it will equally be undermining the scheme of service of the Magistracy and the Constitution of the Federal Republic of Nigeria to classify the Magistrates as anything other than civil or public servants.
JUDICIAL OFFICER?
At the beginning of this paper I defined a Magistrate as an official of the judiciary who presides over a court with limited jurisdiction over criminal and civil matters. His main duty is adjudication. The Black’s Law Dictionary11, defines a Magistrate as a judicial officer with limited jurisdiction and authority while the Oxford Advanced Learner’s Dictionary describes him as a “Judge” in the lower courts of Law12. Therefore the word “Magistrate” as used in the English Language denotes the holder of a judicial or quasi-judicial office. But what connotation is attributable to the word and the holder of the office of a Magistrate in the Nigerian legal and judicial parlance? The starting point for this segment of the paper shall be the Nigerian grundnorm. In defining judicial office and judicial officer, the 1999 constitution states:-
“Judicial office” means the office of chief Justice of Nigeria or a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the office of the Chief Judge or a Judge of the Federal High Court, the office of the Chief Judge or Judge of the High Court of the Federal Capital Territory, Abuja, the office of the Chief Judge of a State and Judge of the High Court of a State, a Grand Kadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja, a President or Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja, a Grand Kadi or Kadi of the Sharia Court of Appeal of a State, or President or a Judge of the Customary Court of Appeal of a State; and a reference to a “Judicial officer” is a reference to the holder of any such office”13.
In enumerating the categories of Judicial officers the constitution clearly excludes the holder of the office of a Magistrate. By virtue of the aforementioned Constitutional provision therefore a Magistrate is not a Judicial officer and I find no such reference made to him or his office in the entire Constitution. Even the Code of Conduct for public officers contained in the fifth schedule to the Constitution merely referred to him and all other staff of Courts and all judicial officers as public officers and no more. Inspite of the adjudicative role of the Magistrate the only official reference made to him as a Judicial officer is in the “Code of Conduct for judicial officers of the Federal Republic of Nigeria”. The Code of Conduct was published in 1998 by the National Judicial Institute under the Chairmanship of the Chief Justice of Nigeria, Hon. Justice M.L. Uwais GCON. The Code contains the “dos” and the “don’ts” of members of the Bench in Nigeria. It is published for the guidance of Judicial officers in the performance of their duties and to intimate them of what will be regarded as judicial misconduct on their part for which disciplinary action may be taken against them. The importance of the Code of Conduct is underscored in the preamble when it states:-
“And whereas a Judicial Officer should actively participate in establishing, maintaining, enforcing, and himself observing a high standard of conduct so that the integrity and respect for the independence of the judiciary may be preserved.
And whereas the judicial duties of a Judicial Officer,, which include all the duties of his office prescribed by law, take precedence over all his activities:”
The Code is applicable to all categories of judicial officers throughout the federation. A judicial officer for the purposes of the Code means the holder of the office of Chief Justice of Nigeria, a Justice of the Supreme Court, the President or Justice of the Court of Appeal, the Chief Judge or Judge of the Federal High Court, of a State and of the Federal Capital Territory, Abuja, the Grand Kadi or Kadi of a Sharia Court of Appeal of a State and of the Federal Capital Territory, Abuja, the President or Judge of a Customary Court of Appeal of a State and of the Federal Capital Territory, Abuja and includes the holder of a similar office in any inferior Court whatsoever14. An inferior court for the purposes of the Code includes Magistrate and District Courts, Area Courts, Customary Courts and Sharia Courts and the holders of similar office in these inferior Courts are the Magistrates, Area Court Judges and Members, Customary court Judges and Members as well as Sharia Court Judges and members (where applicable). The Code of Conduct is no more than an attempt at codifying existing judicial ethics. As it is, the definition of Judicial Officer in the code is more comprehensive than that in the Constitution. The Code did not exempt any Judge of any court from its application. Therefore, for the purposes of the Code of Conduct, a Magistrate is a Judicial Officer. That is to say, for the purposes of observance of ethical standard of behaviour for the good of the Magistrate, the society and in particular the Nigerian Judiciary, the Magistrate is a Judicial Officer, but without the requisite Constitutional and financial benefits in terms of security of tenure, pension rights and benefits as well as improved salaries and allowances as enjoyed by other judicial officers, properly and constitutionally so called.
Under Decree No. 28 of 1991 which established the National Judicial Institute, the Institute is vested with power to issue guidelines to govern the conduct of Judicial Officers and all categories of staff of the Judiciary. It is in pursuance of this power that the Institute Codified and published the Code of Conduct for Judicial Officers. However, the Code does not on the face of it appear to me to be a law. It only appears to be a clear and definite statement in writing of the duties of a Judicial officer and guidelines to follow in performing them. Although there is nothing objectionable in the Code, it would appear to me that it be given a legal and constitutional backing as the Code of Conduct for public officers contained in the 5th Schedule to the Constitution. And until that is done, it can safely be argued that the definition of a judicial officer in the Code is inconsistent with the provision of the Constitution. We all know the legal effect of such inconsistency. But for the time being observance of the Code of Conduct is compulsory by all Judicial officers as defined therein.
CONCLUSION
Since the publication of the Code of Conduct for Judicial officers in 1998 the question as to whether or not a Magistrate is a Judicial Officer featured prominently and continued to dominate discussions in all workshops and conferences organized for Magistrates or Chief Registrars and their Deputies or organized by the Magistrates themselves, such as the present one. No end appears to be in sight yet to the vexed question. I am not competent, as I posited in the preamble to this paper, to provide a definite answer. It is my hope, however, that the foregoing discussion has provided the participants with general framework upon which vibrant and fruitful contributions will follow. If the paper has satisfied this purpose then my aim and desire is achieved.
Before I sign off, permit me to endorse and adopt the popular saying that “To whom much is given, much is expected” and also to add conversely that “to whom much is expected, much is given or ought to be given”. I believe it is only fair that whoever is made to suffer some detriment for the good of the judiciary should equally be accorded some benefits in compensation for his deprivation. In one breadth the Magistrate is a judicial officer and in another, he is not. I respectfully think the time has come for our policy makers in the Nigerian Judiciary to define clearly the status of a Magistrate. But until that is done, I will urge you to strive in the pursuit of propriety, dignity and decorum in the performance of your judicial functions through strict observance of the Code of Conduct for judicial officers and other unwritten ethics of the Bench. You stand to benefit tremendously from the observance of the Code.
Thank you for listening.
JUSTICE M.I. SIRAJO
High Court of Justice,
Jos- Plateau State.
REFERENCES
