The Denning Law Journal


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Denning Law Journal 2019 Vol 31 pp 123-145

THE NIGERIAN SUPREME COURT AND THE 
POLITICAL QUESTION DOCTRINE

Ekokoi Solomon*  Ekereobong Essien**

* Ekokoi Solomon is a PhD candidate at the Faculty of Law, University of Calabar, 
Nigeria, and Lecturer in Law, Department of Public Law, Faculty of Law, University of 
Uyo, Nigeria. E-mail: emmanuelsolomon@uniuyo.edu.ng; ekokoisolomon@yahoo.com
** LLB (Hons), BL & LLM student at the Faculty of Law, Rivers State University, Port 
Harcourt, Nigeria. E-mail: ekyice1@gmail.com
1 L Tremblay, ‘The Legitimacy of Judicial Review: The Limits of Dialogue between 
Courts and Legislatures’ (2005) 3(4) International Journal of Constitutional Law 617.

ABSTRACT

This paper examines the attitude of the Supreme Court of Nigeria towards the 
political question doctrine. It examines the decisions of the Court in some landmark 
cases involving political questions since the First Republic up until the Fourth 
Republic, which commenced in May 1999. The paper identifies three core doctrines 
espoused by the Court in cases involving political questions: deference, necessity or 
exigency and avoidance or passive doctrines. This paper demonstrates the 
inevitability of the Court’s engagement in the adjudication of cases involving political 
questions. This is because by virtue of its role in the governance process, the apex 
court is both a political and legal institution. The paper, therefore, recommends that 
the Court should openly assert the ‘politicality’ of its decisions, whether they are 
predicated on the Court’s deference to the political branches of government, the 
necessity or exigency of the issues involved in the case at hand, and/or the need to 
avoid the political question involved in the case before it.

INTRODUCTION

Analyses of decisions of courts in cases which involve political questions are 
bound to raise the issue of institutional dialogue. The theory of institutional 
dialogue has been described as the engagement of the courts and legislature in a 
dialogue ‘regarding the determination of the proper balance between constitution-
al principles and public policies’.1 When dialogue occurs between courts and the 
legislature, both institutions place emphasis on different values. While courts 
emphasise the need to maintain fundamental procedural values, the legislature, on 
its part, concerns itself with promoting certain economic, social and political 

mailto:emmanuelsolomon@uniuyo.edu.ng
mailto:ekokoisolomon@yahoo.com
mailto:ekyice1@gmail.com


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ends.2 Institutional dialogue sometimes produces conflict between legality and 
legitimacy. When the decision of a court appears to conflict or actually conflicts 
with legislative intent or outcome, the former ‘can be reversed, modified, or 
avoided by a new law, [and] any concern about the legitimacy of judicial review is 
greatly diminished’.3 This is because the core substance of any new law will have 
to effectively address the consequence of the court’s decision.4

In a constitutional democracy, political questions are generally within the 
realm of the political branches of government (the legislature and executive). In 
Nigeria, the notion whether judicial self-restrain in cases involving political 
questions is a myth or reality, is arguably an issue for legal and scholarly debate. 
The divergent views on the issue may be attributed to two opposing conceptions. 
The first is the notion of the inherent powers of the courts to entertain any matter 
brought before them for judicial determination.5 The second is the conception 
that the inherent powers of courts are only meant to complement the powers which 
the Constitution and statutes confer on the courts, rather than conferring a separate 
and distinct jurisdiction on them,6 as inherent powers do not extend the 
jurisdiction of courts but merely lubricate it.7

Definition of concepts is a problematic academic enterprise, as there is 
practically no common ground to its conceptualisation. To this end, it is essential 
to adopt a pragmatic approach in defining any concept. Thus, in Onuoha v 
Okafor,8 the Supreme Court of Nigeria (the Court) laid down two considerations 
for the determination of what constitutes political question. The first pertains to 
the lack of satisfactory criteria for judicial determination of the issues before a 
court, and the second is the appropriateness of attributing finality to the action of 
the political department under the prevailing constitutional order.9 Therefore, the 
political question doctrine is the notion which assists courts to navigate within the 

2 Ibid., 633.
3 P Hogg and A Bushell, ‘The Charter Dialogue between Courts and Legislatures: Or 
Perhaps the Charter of Rights Isn’t Such a Bad Thing after All’ (1997) 35(1) Osgoode Hall 
Law Journal 75, 80.
4 Ibid.
5 Constitution of the Federal Republic of Nigeria, Cap C23 Laws of the Federation of 
Nigeria (LFN) 2004 [hereinafter CFRN 1999 or the Constitution] s 6(6)(a),(b); Adigun v 
Attorney General, Oyo State [1987] All NLR 328, 344; 2 NWLR (pt 56) 197; see also KM 
Mowoe, Constitutional Law in Nigeria (Malthouse Press 2008) 179–180.
6 The Young Shall Grow Motors Ltd v Okonkwo [2002] 38 WRN 98.
7 Akilu v Fawehinmi (No 2) [1989] 2 NWLR (pt 102) 122, 197.
8 [1983] NSCC 494.
9 Ibid., 507.



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confines of judicial tradition and by so doing avoid constitutional controversies. 
This means that in certain situations it will be inappropriate or injudicious for the 
courts to interfere, overtly or directly, with what properly should be within the 
realm of the political branches of government.10 Thus, a judicial matter contains 
a political question ‘when either the constitution has expressly vested jurisdiction 
over the issue [in a case] in the other two branches of the government or it is 
implicit in line with the concept of separation of powers that this should be so’.11 
It should be noted, however, that not all political and constitutional cases constitute 
political questions, even though all constitutional cases have political relevance. 
According to Ademola Popoola, political questions are distinguishable from 
political cases. This is because the characterisation of what constitutes a political 
question ‘does not lie in any possible effect which the decision may have on the 
political framework of the country’.12

When judicial decisions, in cases involving political questions, produce 
outcomes which are incongruous with the economic, social or political aspirations 
of society, such decisions can be considered as having the force of legality but 
lacking in legitimacy. This means that judicial decisions of courts may be legal (in 
as much as such decisions are elucidated based on rules that are discernible and 
implicit or inferred from the legal instrument upon which judicial interpretations 
are predicated) but lack overt acceptability. This is generally applicable to judicial 
cases involving political questions. This paper does not seek to critique the 
decisions of the Court for sake of it, even though it is trite that decisions of courts 
may be critiqued in appropriate forums such as this, albeit respectfully. In Adigun 
v Attorney-General, Oyo State, the Court noted that in view of the great powers 
which the Court wields, it is necessary to exercise such powers with care. 
Therefore, it is imperative for ‘pungent and constructive analytical criticism of 
every judgement of the Court in the law journals and similar fora. [For] [t]he 
judgement of a court should not be treated with sacred sanctity, once it gets to the 
right critical forum’.13 This is because the Court is not infallible but merely final.14

10 A Casties, ‘Justiciability: Political Question’ in LA Stein (ed), Locus Standi (Law 
Books Co 1979) 202; see also, RC Chandler, RA Enslen and PG Renstrom, The 
Constitutional Law Dictionary: Governmental Powers (ABC-Clio Inc 1987) 644.
11 A Popoola, ‘Politics of the Nigerian Judiciary’ in Proceedings of the Nigerian 
Association of Law Teachers Conference, 1994, 70; see also Chandler, Enslen, and 
Renstrom, ibid.
12 Ibid.
13 Adigun (n 7) 328, 344; 2 NWLR 214–215 (Eso JSC).
14 Adegoke Motors v Adesanya [1989] 3 NWLR (pt 109) 250, 274–275.



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Accordingly, this paper examines the attitude of the Court towards the political 
question doctrine and highlights the inconsistencies in the approach of the Court 
in some landmark cases which involved political questions. These inconsistencies 
undoubtedly constitute a major source of the legitimacy question with regards to 
the activity of judicial review in Nigeria.15 The paper asserts that the decisions of 
the Court, in cases involving political questions, have been shaped by (i) its 
deference to the political branches; (ii) the necessity or exigency of the moment; 
and (iii) the doctrine of avoidance. These factors are suggestive of the Court’s 
‘awareness of the events around [it] and the prevailing social and even political 
situations’.16 Certainly, the making of decisions based on the prevailing social and 
political situations set up the Court as a participant in the policy-making process 
and by implication a political institution, just as it is also a legal institution.17

THE COURT AND CONSTITUTIONAL ADJUDICATION

The Court is established in section 230 of the CFRN 1999. It is the highest court 
in the hierarchy of the judicature in Nigeria. All adjudications, with the exception 
of certain electoral cases,18 terminate at the Court.19 Apart from the general 
powers of the Court under section 6 of the CFRN 1999, the Court possesses both 
original20 and appellate21 jurisdictions. Cases go on appeal to the Court either as 
of right22 or with leave of the Court of Appeal, which decision is to be appealed, 
or with leave of the Court.23

15 E Nwauche, ‘Is the End Near for the Political Question Doctrine in Nigeria?’ in C 
Fombad and C Murray (eds), Fostering Constitutionalism in Africa (Pretoria, University 
of Pretoria Press 2010) 33; M Ikhariale, ‘Impeachment Proceedings and the Political 
Question Doctrine: The Nigerian Experience’ (1990) LASU Law Journal 45, 54.
16 Popoola (n 13) 68.
17 Ibid., 62, 64–65.
18 CFRN 1999, s 246(3); Abubakar v Usman [2017] 15 NWLR (pt 1587) 36.
19 CFRN 1999, s 235. There is, however, a proposal which was sponsored by the Judiciary, 
seeking to limit the jurisdiction of the Supreme Court of Nigeria in terms of appeals from 
the Court of Appeal to entertain only cases involving the death penalty, enforcement of 
human rights and interpretation of the Constitution. See, Policy and Legal Advocacy 
Centre, ‘Factsheet on Bills Seeking to Further Amend the Constitution to Reflect Proposals 
Initiated by the Judiciary’ (July 2017) Issue 3 Factsheet: Review of Relevant Information 
on Nigeria’s Democracy 1.
20 CFRN 1999, s 232; see also, Supreme Court Act Cap S15 LFN 2004, s 17.
21 CFRN 1999, s 233(1); Supreme Court Act Cap S15 LFN 2004, s 16(1).
22 CFRN 1999, s 233(2).
23 Ibid., s 235(3).

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In terms of the original jurisdiction of the Court, section 232(1) of the CFRN 
1999 empowers the Court, to the exclusion of any other court, to entertain cases 
involving ‘any dispute between the federation and a state or between states if and 
in so far as that dispute involves any question (whether of law or fact) on which the 
existence or extent of a legal right depends’. The Court is sometimes invited to 
decide cases which involve political questions that may emanate by virtue of the 
horizontal relations between the other two branches of government, or from the 
vertical relations between the federal and state governments, or from electoral, 
political party and other political activities.

Drawing from the above, the issue whether the Court can competently exercise 
its judicial powers in such a manner that limits or is capable of limiting the potency 
of positive law may be raised.24 Generally, courts cannot exercise judicial powers 
to defeat the intention of the legislature or write into legislation what was not 
intended by the legislature or to rewrite a legislation through judicial decisions. By 
virtue of the foregoing, the Court is not required to legislate from the bench – not 
even under the pretext of constitutional adjudication – as to do so would amount to 
exceeding its judicial powers and venturing into the realm of politics.

What Does Constitutional Adjudication Entail?

Constitutional adjudication entails judicial interpretation of the constitution. This 
is because written constitutions are not self-actualising and are inherently indeter-
minate.25 For this reason, written constitutions require interpretation and adapta-
tion to changing circumstances,26 which are themselves ‘both unavoidable and 
problematic’.27 Even so, James Madison hoped that in a constitutional democracy 
‘[a]mbition must be made to counteract ambition’,28 so that the law of the constitu-
tion could be made self-enforcing by aligning the interests of the departments of 
government with constitutional rights.29 According to Madison’s theory, 
self-enforcement of constitutional law is realisable through constitutional separa-
tion of powers between the legislative, executive and judicial branches of 

24 Dangana v Usman [2012] 2 SC (pt III) 103, 130.
25 C Lafont, ‘Philosophical Foundations of Judicial Review’ in D Dyzenhaus and M 
Thorburn (eds), Philosophical Foundations of Constitutional Law (OUP 2016) 265.
26 D Kommers, ‘Germany: Balancing Rights and Duties’ in J Goldsworthy (ed), 
Interpreting Constitutions (OUP 2006) 196.
27 Lafont (n 27).
28 J Madison, ‘Federalist 51’ in L Goldman (ed), Alexander Hamilton, James Madison, 
and John Jay: The Federalist Papers (New York, OUP 2008) 257.
29 Ibid.



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government.30 Therefore, in interpreting the constitution, courts must ensure that 
the meaning accorded to constitutional texts is true to the spirit of the constitution-
al order. This is because, first, according to Aharon Barak, a former president of 
the Supreme Court of Israel, ‘[e]very [constitutional] text has two meanings: an 
express meaning and an implied meaning’31 and second, wide power of construc-
tion, in John Taylor’s view, may allow courts to stretch constitutional adjudication 
in manners that render the activity more amenable to the attainment of purposes in 
view or predetermined objectives just ‘as synods do scriptures, according to the 
temporal interest of the predominant sect’.32

The CFRN 1999, like other written constitutions, is open-textured and allows 
for competing, conservative and liberal readings33 of the constitutional texts, and 
also commits to certain basic constitutional principles.34 As already noted, the 
open-textured nature of Nigerian Constitutions, including the CFRN 1999, gives 
rise to divergence in constitutional interpretation. While constitutional adjudication 
may be considered an inevitable and overlapping judicial activity, it is however 
important to ensure that decisions which emanate from the process are objective 
and based on positive law, as well as capable of promoting the economic, social 
and political aspirations of the society. This ensures that judicial decisions produce 
the best interpretation possible.35

It would appear the Court favours two main approaches in constitutional 
interpretation. The first is the minimalist approach. This approach in the 
interpretation of the constitution, to a large extent, has its origin in Nigeria’s 
colonial heritage.36 The Court applied the minimalist approach, for example, in 
Attorney-General, Ondo v Attorney-General, Federation (ICPC case),37 wherein 
the Court unequivocally pronounced its support for the anti-corruption policy of 

30 J Goldsmith and D Levinson, ‘Law for States: International Law, Constitutional Law, 
Public Law’ (May 2009) 122(7) Harvard Law Review 1792, 1832.
31 A Barak, ‘On Constitutional Implications and Constitutional Structure’ in D Dyzenhaus 
and M Thorburn (eds), Philosophical Foundations of Constitutional Law (OUP 2016) 53.
32 J Taylor, Construction Construed and Constitutions Vindicated (Reprint edn, The 
Lawbook Exchange Ltd 1998) 23.
33 T Roux, ‘Transformative Constitutionalism and the Best Interpretation of the South 
African Constitution: Distinction without a Difference’ (2009) 2 Stell LR 278.
34 E Solomon, ‘The Basic Structure Doctrine and Implied Limitations on the Exercise of 
Legislative Powers under the Nigerian Constitution’ (2016) 9 University of Uyo Law 
Journal 267.
35 Ibid., 279–280.
36 H Yusuf, ‘The Judiciary and Political Change in Africa: Developing Transitional 
Jurisprudence in Nigeria’ (October 2009) 7(4) ICON 654, 664.
37 [2002] 6 SC (pt I) 1.

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the federal government in spite of the unitary disposition of the Corrupt Practices 
and Other Related Offences Act38 which negates the principle of federalism under 
the Constitution, even as the Court struck down sections 26(3) and 35 of the ICPC 
Act for its violation of the fundamental right to liberty.39 The minimalist approach, 
it would appear, accounts for the Court’s reluctance to enforce, for example, 
certain provisions of the Fundamental Objectives and Directive Principles of State 
Policy provisions of the Constitution,40 and holding that the objective to eliminate 
corruption can be realised through the enactment and enforcement of legislation.41

The second approach to constitutional adjudication favoured by the Court is 
the structural or purposive approach. The purposive approach in the interpretation 
of the constitution involves the systematic analysis or inquiry into the structure 
and function or purpose of constitutional rules. It seeks to find guidance in 
constitutional history and the spirit of the constitution as a living document. This 
approach emphasises practicality over abstract analysis, structure over procedural 
considerations, efficiency over textuality and the end prevailing over the means.42 
The structural or purposive approach, therefore, ensures the unity and coherence 
of constitutional order.43 This approach seeks to entrench the existing constitutional 
order by going beyond explicit constitutional provisions to apply norms that may 
be implied from the constitutional texts.44

The Court has applied the structural or purposive approach in plethora of 
cases. For example, in Bronik Motors Ltd v Wema Bank Ltd,45 the Court held that 
a constitution is a living document which requires a purposive interpretation of its 
provisions in order to promote the objects of its provisions and intention of the 

38 No 5 of 2000, repealed by Corrupt Practices and Other Related Offences Act (No 6 of 
2003) Cap C31 LFN 2004 [ICPC Act] s 55.
39 This led to the repeal of the ICPC Act, No 5 of 2000 and the enactment of the ICPC 
Act, No 6 of 2003.
40 G Okeke and C Okeke, ‘The Justiciability of the Non-Justiciable Constitutional Policy 
of Governance in Nigeria’ (January–February 2013) 7(6) Journal of Humanities and 
Social Science 9–14.
41 ICPC case (n 39) 28–30.
42 J Madison, ‘Federalist 40’ in L Goldman (ed), Alexander Hamilton, James Madison, 
and John Jay: The Federalist Papers (OUP 2008) 194; see also Solomon (n 36).
43 Kommers (n 28) 199–200.
44 C Chandrachud, ‘Constitutional Falsehoods: The Fourth Judges Case and the Basic 
Structure Doctrine in India’ in R Albert and B Oder (eds), An Unamendable Constitution? 
Unamendability in Constitutional Democracies (Springer International Publishing AG 
2018) 149; see also Solomon (n 36).
45 [1983] ANLR 272.



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framers of the Constitution.46 In Dangana v Usman, the Court held that in 
constitutional adjudication, a judge should not only rely on the constitutional texts 
but also consider the historical evolution of constitutional practice and history 
prior to the enactment of the existing Constitution.47 In the same vein, in Rabiu v 
State,48 the Court held that it is not the duty of the ‘Court to construe any of the 
provisions of the Constitution as to defeat the obvious ends of the Constitution’,49 
or indeed to give an interpretation that will defeat the principles upon which a 
constitutional rule was established.50 Also, in Attorney-General, Abia State & 2 
Ors v Attorney-General, Federation (Revenue Monitoring case),51 a case in which 
the plaintiffs challenged the constitutionality of the Local Government Revenue 
Management Act, a legislation which was enacted to promote the economic and 
social well-being of the citizens in local communities. In this case, the Court was 
called upon ‘to respond to the dilemma presented by the need to secure a balance 
between a laudable policy objective with constitutional support and a fundamental 
black-letter constitutional principle’.52 In its decision, the Court held that the 
Revenue Monitoring case was not about the need to curb corruption but about the 
violation of a major constitutional principle, namely, federalism.53

It should be noted however, that there appears to be an emerging approach by 
the Court in constitutional adjudication. This approach is reflective of the passive 
disposition on the part of the Court towards constitutional adjudication to the 
extent of avoiding major constitutional questions brought before it for judicial 
determination.54 The following sections of this paper examine the attitude of the 
Court in the constitutional adjudication of cases with political questions.

46 Ibid., 291–292.
47 Dangana (n 26) 152.
48 [1980] 8–11 SC 130.
49 Ibid., 149 (Udoma JSC).
50 Attorney-General, Bendel State v Attorney-General, Federation & 22 Ors [1981] 
ANLR 85, 130–131.
51 [2006] 2 All NLR 24.
52 Yusuf (n 38) 663.
53 Revenue Monitoring case (n 53) 32.
54 In Attorney-General, Federation v National Assembly [April 2015] Unreported, Suit 
No SC/214/2015 <http://nationalmirroronline.net/new/fg-drags-nass-to-supreme-court/> 
accessed 11 January 2018, the Court avoided constitutional adjudication by failing or 
refusing to determine the constitutionality of the Fourth Alteration Bill 2015 passed by 
the 7th National Assembly, through the Constitution of the Federal Republic of Nigeria 
(Fourth Alteration) Bill 2015. Prior to the above case, the Court had avoided the 
constitutional issues raised in the case brought by the 36 state governments against the 
federal government of Nigeria over the latter’s unilateral operation of the Excess Crude 

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<http://nationalmirroronline.net/new/fg-drags-nass-to-supreme-court/


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THE COURT AND INSTITUTIONAL DEFERENCE

Institutional deference is a principle in judicial decision making which allows the 
courts to apply lower level scrutiny in the judicial review process.55 This is in 
contradistinction with the doctrine of separation of powers which ensures that 
courts ‘respect the role of the executive and legislature in formulating policy’.56 
While the doctrine of institutional deference ‘allows for an examination of the 
reasons which underpin a court’s deferential approach in choosing a lower stand-
ard of review’57 the separation of powers doctrine recognises that the courts have 
no role in shaping the political process.

In Nigeria, in the period immediately after independence, the judicial attitude 
of the courts and judges, in cases involving political questions, was highly reflective 
of the institutional deference principle rather than the separation of powers 
doctrine. This can largely be attributed to the colonial heritage of the Nigerian 
judiciary, which accepted the preeminent role of the political branches in the 
political process. Therefore, in the interpretation of the Constitution and statutes, 
the Court mostly shied away from making decisions that would suggest its 
participation in the political process under the cover of judicial review. While in 
some cases, the Court did not openly acknowledge its deference to the political 
branches, in other cases, however, the Court made it clear that it was unprepared to 
engage the political questions involved in such cases in deference to the legislative 
or executive branches.

In Akintola v Aderemi,58 for example, a case which arose out of a political 
crisis in the Western Region of Nigeria (as it then was) and which resulted in the 
removal of the premier by the governor, the Federal Supreme Court held that in a 
democracy institutions are required to imbue a spirit of tolerance, compromise 
and restraint. The Court acknowledged that under a parliamentary democracy, 
which was the system of government practiced in Nigeria at the time, if a premier 
realised that he and his government no longer commanded the support of a 
majority in the House of Assembly, the premier ought to resign or call for the 
dissolution of the Parliament and the conduct of a fresh election. The Court went 
on to hold that ‘[i]f a premier were to go on, although he knew that he did not 

Account (ECA), the withdrawal of USD 1 billion from the ECA and the establishment and 
funding of the Nigerian Sovereign Wealth Fund (SWF) in 2011.
55 K Mclean, Constitutional Deference, Courts and Socio-Economic Rights in South 
Africa (Pretoria University Law Press 2009) 61.
56 Ibid., 62.
57 Ibid.
58 [1962] 1 All NLR 442.



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command a majority he would be departing from democratic principle of majority 
rule which pervades the Constitution’, and such a situation would demonstrate 
nonconformity with public opinion, as well as the ideals contemplated by the 
framers of the Constitution.59

Regrettably, despite this clear finding which was based on the existing 
constitutional order, the Court went on to declare the removal of the premier of the 
Western Region by the governor null and void on the ground that the governor’s 
acceptance that the premier no longer commanded the majority support in the 
Western Region House of Assembly was a matter that could only be determined 
on the floor of the House and not otherwise. It should be observed that the Court, 
in this case, gave greater credence to procedural value over the substantive 
legitimising value of the case. It is not surprising that the Court’s decision was 
reversed by the Privy Council which agreed with the legal analysis adopted in the 
dissenting judgement of FJ Brett, which was based on a strict legal position of the 
case.

In Williams v Majekodunmi,60 the attitude of the Federal Supreme Court was 
based, it would appear, on the Court’s deference to the legislative branch, rather 
than the dictates of the law. In this case, the plaintiff challenged the validity of the 
state of emergency which was declared in the Western Region of Nigeria pursuant 
to the Emergency Powers Act of 1961. The Court was, therefore, invited to 
consider, among other things, whether the Federal Parliament had validly exercised 
its powers under the 1960 Constitution. In the view of the Court, the existence of a 
state of public emergency in the country is a political issue and ‘a matter within 
the bounds of Parliament and not one for this court to decide’.61 According to the 
Court, ‘once that state of emergency is declared[,] it would seem that according to 
the Constitution, it is the duty of the government to look after the peace and 
security of the State and it will require a very strong case against it for the court to 
act’.62 The Court therefore declined to determine the constitutionality of the 
exercise of the emergency powers in deference to Parliament. In a remarkable 
fashion, instead of inquiring into the validity of the exercise of the power to 
declare a state of emergency, the Court chose to focus on and address the aftermath 
(the effect) of the exercise of emergency powers.

Similarly, in Attorney-General, Eastern Nigeria v Attorney-General, 
Federation,63 the Court held that it is essentially a political matter to decide what 

59 Ibid.
60 [1962] 1 All NLR 324.
61 Ibid., 330.
62 Ibid.
63 [1964] 1 All NLR 224.

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margin of error is acceptable in a census. Consequently, the Court held that in the 
circumstance of the case, it was not competent to adjudicate on the matter64 and 
refused to make the declaration that was sought by the plaintiff, namely to 
invalidate the results of the census exercise. Also, in Lakanmi v Attorney-General, 
Western Nigeria,65 the Court, in essence, recognised a military government as a 
constitutional government, inferring that the military take-over of government in 
January 1966 was a voluntary hand-over of power by the executive branch of the 
civil government to the military. This appears to have been a pragmatic decision 
on the part of the Court, considering the despotic nature of many military 
governments. It is also possible that the Court’s decision was a deliberate attempt 
to defer to the action of the executive to voluntarily effect a change of government 
by handing over power to the military.

In Awolowo v Shagari,66 the Court restated that judges are not required ‘to 
apply their opinions of sound policy so as to modify the plain meaning of statutory 
words’.67 Therefore, in deference to the framers of section 34A (c)(ii) of Electoral 
Decree No. 73 of 1977 which came up for interpretation, the Court held that the 
‘Federal Military Government must be deemed to know that two-thirds of 19 
States will be 122/3 States’.68 This was in spite of the Court’s acceptance that the 
issue at the core of the case involved the interpretation of law, a function which the 
Court was required to undertake, as it succinctly noted: ‘with the minimum of 
direction from the legislature as to how it should set about this task’.69

In Onuoha v Okafor,70 both parties contested for their political party’s, 
nomination for a senatorial seat and the plaintiff was chosen by the party, Nigerian 
Peoples Party (NPP). The defendant petitioned the party against the plaintiff and 
a panel set up to consider the petition choose the defendant and dropped the 
plaintiff based on the petition. The plaintiff instituted a law suit to compel the NPP 
to nominate and sponsor him for election for the senatorial seat instead of the 
defendant. In its decision, the Court held that it lacked the jurisdiction to entertain 
the matter because under the 1979 Constitution, nomination and sponsorship of a 
candidate is a political matter solely within the discretion of a political party. The 
Court further held that, under the 1979 Constitution and the Electoral Act, the 
right to canvass for votes lies with political parties, and implicit in the right to 

64 Ibid., 231.
65 [1971] All NLR (pt II) 201.
66 [1979] All NLR 120.
67 Ibid., 140 (Simon, LC).
68 Ibid., 141.
69 Ibid., 139 (Fatayi-Williams, CJN).
70 Onuoha v Okafor (n 10).



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canvass for votes is the right to sponsor or not to sponsor a candidate for election. 
Thus, the Court refused to confirm the plaintiff (now respondent) as the candidate 
of the NPP, as to do so would, in the words of the Court, ‘instantly project or 
propel the Court into the area of jurisdiction to run and manage political parties’.71 
In a rhetorical manner, the Court held:

Can the Court decide which of the two candidates can best represent the 
political interest of the NPP? In all honesty, […] the Court will in so doing be 
deciding a political question which it is ill-fitted to do.72

It is surprising that the Court failed to make recourse to a constitutional 
provision which appears to have contemplated the conferment of unlimited powers 
on the Court to engage in judicial review of all matters between persons or between 
government or governmental authority and any person in Nigeria for the 
determination of any question as to civil rights and obligations.73 This 
constitutional principle was restated in Alegbe v Oloyo,74 wherein the Court held 
that, in Nigeria, when a superior court is called upon to interpret or apply any 
provision of the Constitution or the constitution of any organisation with respect to 
the civil rights and obligations of its members, the court is not dealing with a 
political question even if the subject matter of the dispute has political implications, 
as the court is merely performing its function under the Constitution.75

The preceding analysis illustrates the Court’s deference to the political 
departments with regard to cases involving political questions. Although these 
decisions were legally binding, they appeared to lack the standard of legitimacy 
required of courts. While legality pertains to validity of the decisions (which is a 
function of law), legitimacy entails the acceptability of the outcome (which is a 
function of the conscious or deliberate effort towards the satisfaction of economic, 
social or political aspiration of society).76 This means the fact that a decision of a 
court is legal does not make it right and acceptable to society. Even so, in all the 
cases examined above, the legislature did not take steps to reverse, modify or 
avoid the decisions of the Court. The situation is different under the Fourth 

71 Ibid., 501.
72 Ibid.
73 Constitution of the Federal Republic of Nigeria 1979, s 6(6)(b).
74 [1983] NSCC 315.
75 Ibid., 341–342 (Fatayi-Williams, CJN).
76 N Udombana, ‘Constitutional Restructuring and Fiscal Federalism’ (A paper presented 
at the Dinner Lecture organised by Godswill Akpabio Law House in collaboration with 
Akwa Ibom North-West Lawyers’ Coalition, Uyo, 23 December 2017) 6.

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Republic, as the National Assembly has used appropriate legislative measures to 
reverse and avoid decisions of the Court in some cases involving political questions. 
A case in point is the decision in Attorney-General, Federation v Attorney-
General, Abia State & 35 Ors (Oil Resource Allocation cases)77 with respect to 
the boundaries of the littoral states which was reversed and its effect avoided by 
the Allocation of Revenue (Abolition of Dichotomy in the Application of the 
Principle of Derivation) Act, which provides that:

[a]s from the commencement of this Act, the two hundred metre water depth 
Isobath contiguous to a State of the Federation shall be deemed to be part of 
that State for the purposes of computing the revenue accruing to the federation 
account from the State pursuant to the provisions of the Constitution of the 
Federal Republic of Nigeria, 1999 or any other enactment.78

Also, section 141 of the Electoral Act 2010 appears to reverse the outcome in 
Amaechi v INEC,79 to the extent that ‘[a]n election tribunal or court shall not 
under any circumstances declare any person a winner at an election in which such 
a person has not fully participated in all the stages of the said election’.80

THE COURT AND THE NOTION OF NECESSITY

In Attorney-General Bendel State v Attorney-General, Federation & 22 Ors,81 
the Court applied the principle of unlimited powers of judicial review under the 
1979 Constitution. In this case, the Court disregarded the provision of section 2 of 
the Acts Authentication Act which established a presumption of regularity and 
validity to Acts passed by the National Assembly on the grounds of the existential 
necessity to protect the Constitution from being derogated82 and the need to 
promote public interest.83 The Court distinguished the present case from the 
Census case, which it believed to be a special case considering the overall powers 
of the Court under the 1963 Constitution vis-a-vis the 1979 Constitution.84

77 (No 1) [2001] All NLR 12; (No 2) [2002] All NLR 72.
78 Cap A27 LFN 2004, s 1(1).
79 [2007] 1 All NLR 354.
80 No 6 of 2010, s 141 [emphases added].
81 [1981] All NLR 85.
82 Ibid., 110, 133 (Fatayi-Williams, CJN).
83 Ibid., 136 (Bello, JSC).
84 Ibid., 149, 155 (Idigbe JSC).



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In the Oil Resource Allocation case, the Court demonstrated its unlimited 
power of judicial review. In response to preliminary objections that the 
determination of the seaward boundary of a littoral state within Nigeria constituted, 
among others, a political question which should be determined by the legislature,85 
the Court held that by the provisions of sections 6(1), (6) and 232(1) of the CFRN 
1999, it has jurisdiction to interpret all provisions of the Constitution whether on 
appeal or in exercise of its original jurisdiction.86 However, only one dissenting 
judgement acknowledged that the case was within the political question doctrine.87 
And according to an amicus curiae in the case:

[t]he seaward boundary of a littoral state is a matter that has been settled by 
international law, especially the Geneva Convention on the Territorial Sea 
1958, and the Third United Nations Convention on the Law of the Sea, and 
[therefore] not a matter for determination by municipal courts.88

In its decision on 5 April 2002, the Court held that the boundary of the 
littoral defendant states is the low water mark of the seabed and not the Continental 
Shelf.

It is important to note that in 2001 when the federal government instituted 
the law suit, the Allocation of Revenue Decree No. 106 of 1992, which ended 
the dichotomy between on-shore and off-shore oil mineral for the purpose of 
sharing oil revenues in Nigeria, was an existing law.89 This is because when 
the CFRN 1999 came into force, the legislation was not repealed. In Ibidapo v 
Lufthansa Airlines,90 the Court held that a law did not cease to have effect and 
validity as an existing law in Nigeria simply because it was omitted in the 
course of the compilation of the laws of the federation. Accordingly, it held 
that where there is intent ‘to repeal legislation, this should be expressly so 
stated as the courts generally lean against implying the repeal of an existing 
legislation unless there exist clear proof to the contrary’.91 The implication is 
that an omission of a law or the presumption of repeal of a law is not tantamount 
to its repeal. As such, an omitted law or a law presumed to have been repealed 

85 Oil Resource Allocation case (No 1) (n 79) 137–138.
86 Ibid., 134, 141 (Uwais, CJN).
87 Ibid., 174, 192–193 (Karibi-Whyte, JSC).
88 E Osieke, ‘Case between the Federal Government and 36 States on the Issue of 
Derivation – Suit No SC/28/2001’ (Amicus Curiae Comments) 4.
89 CFRN 1999, s 315(1)(a),(b).
90 [1997–98] All NLR 88.
91 Ibid., 123 (Iguh, JSC).

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when in fact it was not, would continue to have the same force of validity 
and applicability as if it had not been omitted or presumed to have been 
repealed.92

Therefore, it is curious that the Court entertained the case in the first place 
when it was obvious that it would be impolitic or inexpedient to do so,93 even to 
the extent of relying on the colonial Orders-in-Council, common law principles, as 
well as foreign cases in order to determine the boundary of the littoral states, 
whereas both the 1960 and 1963 Constitutions had provisions which deemed the 
Continental Shelf as the boundary of the Southern Regions for the purpose of 
revenue allocation.94 It is submitted that besides involving a political question, the 
case was hypothetical in nature95 and akin to asking the Court for its advisory 
opinion – a practice that is not known to Nigerian law.96 It is further submitted 
that the Court should have relied on the provisions of sections 134(6) and 140(6) of 
the 1960 and 1963 Constitutions, respectively. This is because both Constitutions 
contain express provisions which deem the Continental Shelf as boundary of 
Southern Nigeria for the purpose of revenue allocation and the definition of the 
seaward boundary of the littoral states had, at the time, not been expressly or 
impliedly repealed by the 1979 and 1999 Constitutions which make no reference 
to the issue.

It is instructive to note that in Garnett v Bradley,97 the House of Lords stated 
an important rule of common sense which suggests that when a new enactment 
is couched in a manner that the previous law can well stand with it because there 
is nothing to suggest that the old law has been repealed, and there is no necessity 
to indicate a contradiction between the two enactments, the old law should 
remain valid.98 With great respect to the Court, it should not have entertained 
the case or in the alternative, it should have applied this rule of common sense. 
For, the true test of the rule is in the ‘just application of its conformity to’99 the 
social reality rather than yield to the political necessity to restate the federal 
government’s dominant position in Nigeria’s federal practice using comparative 

92 Revised Edition (Laws of the Federation of Nigeria) Act 2007, s 2.
93 Nwauche (n 17) 59.
94 It should be noted littoral states are bona fide successors in title to the former southern 
regions of Nigeria.
95 Saliu v State [1984] 10 SC 104, 113; Awoshima v State [2011] 6–7 SC (pt III) 1, 38.
96 Osieke (n 90) 3.
97 [1878] 3 AC 944.
98 Ibid., 966 (Lord Blackburn).
99 A Hamilton, ‘The Federalist 83’ in L Goldman (ed), Alexander Hamilton, James 
Madison, and John Jay: The Federalist Papers (New York, OUP 2008) 406.



138

constitutional analysis.100 The implication of the principle in Garnett with 
respect to the Oil Resource Allocation case, is that in so far as the definition of 
the seaward boundary of Southern Nigeria (as it then was) under the 1960 and 
1963 Constitutions is not expressly or impliedly repealed by the CFRN 1999, 
and there is no provision in the CFRN 1999 on the boundary of the littoral states 
which conflicts with the definition of the seaward boundary of the former 
southern regions of Nigeria under the 1960 and 1963 Constitutions, the provisions 
in the latter Constitutions remain valid and applicable for determining the 
boundary of the littoral states for the purpose of calculating the amount of 
revenue accruing to the federation account from oil derived from off-shore in 
favour of the littoral states.101

The Amaechi case is another good example of the Court’s inconsistency 
towards the political question doctrine. The facts of the case are that Rotimi 
Amaechi contested the primary election of the Peoples Democratic Party (PDP) 
for nomination as the governorship candidate of the party and scored the highest 
votes. The PDP (third respondent) thereafter substituted him for Celestine Omehia 
(second respondent) who did not participate in the nomination process. 
Consequently, Amaechi instituted a law suit at the Federal High Court, Abuja 
against the Independent National Electoral Commission (INEC) (first respondent), 
Omehia and the PDP. Amaechi lost at both the court of first instance and the Court 
of Appeal, hence his further appeal to the Court. It should be noted that the facts 
in the Amaechi case are similar to those in the Onuoha case. In its decision, the 
Court set aside the substitution of Amaechi by the PDP on the ground that it was 
illegal, as no ‘cogent and verifiable reasons’ were given as required under the 
Electoral Act 2006.102 In Onuoha, the Court decided that it was impolitic and 
inexpedient to take jurisdiction because it felt that the exercise of judicial power 
was inappropriate, but in Ameachi the Court not only exercised its power of 
judicial review, it ordered Omehia to vacate the office of Governor of Rivers State 
and in its consequential orders directed that Amaechi be sworn in as the Governor 
on the ground that he was deemed to have won the election. This decision 

100 B Silverman, ‘The Legitimacy of Comparative Constitutional Law: A Modal 
Evaluation’ (2016) 24(2) Michigan State International Law Review 315–345, 353–354.
101 E Egede, ‘Who Owns the Nigerian Offshore Seabed: Federal or States? An 
Examination of Attorney General of Federation v Attorney General of Abia State & 35 
Ors Case’ (2005) 49(1) Journal of African Law 75, 86.
102 Electoral Act 2006, Cap E6 LFN 2004, s 34(2).

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understandably attracted serious criticisms by lawyers and non-lawyers alike.103 
In justifying the Court’s meddling in an issue involving a political question, the 
Court noted that since:

the name of Amaechi was not substituted as provided by law, the consequence 
is that he was the candidate of the PDP for whom the party campaigned in the 
April 2007 elections not Omehia and since PDP was declared to have won the 
said elections, Amaechi must be deemed the candidate that won the election 
for the PDP.104

A justification such as the one given above was obviously problematic. It 
undoubtedly reinforces the view that hard cases make bad law which is bound to 
leave ‘a sour taste in the mouth’.105 Thus, to arrive at its decision, the Court chose 
to amplify the constitutional issue of the fundamental right of Amaechi,106 which, 
according to the Court, deserves to be determined conclusively and with finality in 
favour of the appellant.107

Equally important is the fact that the Court felt the necessity to send a strong 
warning to the political class and political parties. According to the Court, ‘[t]he 
vicious acts of the dramatis personae in this case that have led to this unfortunate 
and time-wasting court case must not be allowed to repeat themselves. No decent 
and polished characters can be credited with such vicious acts’.108 Instructively, 
the decision of the Court suggests a response necessitated by a growing and 
widespread impunity in the PDP, as was evident in other cases previously 
adjudicated by the Court.109

103 F Falana, ‘The Rule of Law or the Rule of the Law: Epoch Decisions of the Supreme 
Court of Nigeria under Review’ (Being a paper presented at the Annual General 
Conference of the Nigerian Bar Association, International Conference Centre, Abuja, 
27 August 2008) 8.
104 Amaechi (n 81) 408 (Oguntade, JSC).
105 Ibid., 517 [i] (Aderemi, JSC).
106 Ibid., 395 [h]–[i].
107 Ibid., 399 [g]–[i]; Ibid., 517 [d]–[f].
108 Ibid., 521[f]–[g] (Aderemi, JSC).
109 Ugwu v Ararume [2007] 12 NWLR (pt 1048) 367; Inakoju v Adeleke [2007] All NLR 
65. This also appears to have necessitated the decision of the Court in All Progressive 
Congress v Marafa & Ors (Unreported SC/377/2019, delivered on 24 May 2019) which 
renders the victory of all the candidates of the APC party in the 2019 general election in 
Zamfara State a nullity.



140

THE COURT AND AVOIDANCE OF CONSTITUTIONAL 
ADJUDICATION

When courts decline jurisdiction to entertain constitutional questions brought for 
their determination, a major reason for their action is that such issues are within 
the realm of the political branches. However, this approach is sometimes founded 
on the notion of constitutional avoidance.110 The notion of constitutional avoidance 
seeks to prevent the courts from becoming entangled in unnecessary controver-
sies, which may arise in the exercise of their power of judicial review, over consti-
tutional issues involving political questions. For this to be possible, courts are 
advised to acquire passive virtues and be inclined to return constitutional prob-
lems involving political questions to the political realm for resolution.111 However, 
it may be argued that by avoiding constitutional problems with political questions 
and remaining passive, courts might be abdicating their role of judicial review and 
that the notion of constitutional avoidance, in its original conception, was to be 
applied only to minor constitutional problems.112

In Nigeria, the Court under review has avoided major constitutional cases with 
political questions on two instances. First, the Court avoided to adjudicate on 
constitutional disputes instituted by the 36 state governments against the federal 
government in 2008 and 2011 over the latter’s unilateral operation of the Excess 
Crude Account (ECA) and alleged illegal withdrawal of USD 1 billion from the 
ECA to fund the Nigerian Sovereign Wealth Fund (SWF) respectively, in breach 
of the provision of section 162(3) of the CFRN 1999. In spite of the legal controversy 
surrounding the federal government’s operation of the ECA (an important 
constitutional issue), the Court has not deemed it necessary to make a judicial 
decision on the cases before it.113 Secondly, in Attorney-General, Federation v 
National Assembly (Constitution Amendment case),114 which pertained to the 

110 L Kloppenberg, ‘Avoiding Constitutional Questions’ (1994) 35(5) Boston College Law 
Review 1003.
111 A Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 
(2nd edn, Yale University Press 1986) ch 4.
112 Kloppenberg (n 112) 1016–1017.
113 The federal government’s decision, in April 2018, to withdraw another USD 1 billion 
for the purchase of military hard wares sparked off another round of controversy as to the 
constitutionality of maintaining the ECA. In fact, this issue has further raised the question 
of how funds in the ECA should be appropriated. See O Ogunmade and D Oyedele, ‘After 
Senate Rumble, Presidency Says Buhari Yet to Authorise $1bn Withdrawal from ECA’ 
This Day (Lagos, 10 April 2018) 1, 6.
114 [April 2015] Unreported, Suit No SC/214/2015.

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constitutional issue of constitutional alteration or amendment, the federal 
government sued the National Assembly for, as it claimed, unconstitutionally 
amending the Constitution pursuant to the latter’s powers in section 9(1) & (2) of 
the CFRN 1999. The alteration or amendment sought to, among other things, 
(i) alter the constitutional practice of presidential assent to Bills passed by the 
National Assembly in respect of alteration or amendment to the Constitution,115 
(ii) alter the extent of presidential power in respect of assent of ordinary Bills,116 
and (iii) alter executive powers of the president to appoint persons to certain public 
offices established under the CFRN 1999.117 The Court avoided to adjudicate on 
the disputed constitutional amendment Fourth Alteration Bill 2015, and instead 
returned the case to the legislative and executive branches for political resolution 
of the issues raised in the case. It merely observed that it is the president, and not 
the attorney-general, who ought to have been the plaintiff in the suit because he 
decided to exercise his constitutional power not to assent to the Bill.118

APEX COURTS AND POLITICAL QUESTION:  
A COMPARATIVE REFLECTION

There appears to be a consensus on the notion that courts are guardians of any 
genuine democratic enterprise.119 The only point of divergence, it would seem, is 
the extent of the courts’ guardianship of constitutional democracy, in view of the 
fact that legislative and constitutional provisions which empower the courts in this 
regard range ‘from the relatively specific to the extremely open-textured’.120 This 
situation creates room for contending models on how courts in a constitutional 
democracy should deal with political questions. According to John Ely, this is the 
basis for the debate between the proponents of interpretivist and non-interpretivist 
models.121 While the former holds that courts deciding constitutional issues should 
confine themselves to enforcing norms that are stated or clearly implicit in the 
constitution, the latter is of the notion that courts should go beyond the provisions 

115 Constitution of the Federal Republic of Nigeria (Fourth Alteration) Bill 2015, s 4, 
which sought to amend s 9 of the CFRN 1999 by adding a new ss 3A to s 9.
116 Ibid., s 14, which sought to amend s 58 of the CFRN 1999 by adding a new ss 5A to 
s 58.
117 Ibid., s 23, which sought to amend the CFRN 1999 by adding new s 84A–84F.
118 Solomon (n 36) 267–268.
119 J Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University 
Press 1980) 73.
120 Ibid., 13.
121 Ibid., 1.



142

of the constitution to make judicial pronouncements on norms that cannot be 
discovered within the confines of the legal document under review.122 This leaves 
constitutional theorists in a quagmire, as the former approach is characterised by 
analyses that are incapable of keeping faith with the spirit of written constitutions, 
while the latter approach simply ends up constituting constitutional courts as legis-
lative bodies.123 Interestingly, both conceptions appear to have left out in their 
arguments the interests of the parties (which are in some cases the citizens) whose 
expectations trigger the process of judicial review. This requires a broadened 
perspective which makes it imperative to establish a balance among the different 
branches of government.124 Therefore, when evaluating the legitimacy of the 
approach adopted by courts to political questions, it seems important to also 
consider the rationale and the justification for the action as understood by parties 
who are supposed to benefit from the outcome.

Yet, as earlier noted, in a constitutional democracy, the normative political 
view is that elected officials are solely responsible for issues constitutionally 
assigned to the political department. However, the crucial role of the courts in 
shaping such issues is undeniable (especially the apex courts, irrespective of the 
nomenclatures that are used to describe them).125 This practice has given rise to 
what has been described as the counter-majoritarian difficulty.126 In response, it 
has been argued that the notion of counter-majoritarian difficulty is an exaggeration, 
because courts’ participation in the policy-making process is quite negligible.127 In 
Germany, for example, where there exists a purely political mechanism in the 
selection of the justices of the Federal Constitutional Court,128 there is acceptance 
that the German Basic Law (Grundgesetz) is the interpretation given by the Federal 
Constitutional Court.129 In this regard, Donald Kommers asserts that:

[m]ost scholars and legal professionals accept the Court as a legitimate 
participant in the larger community decision-making process, [for which] 

122 Ibid.; see also Barak (n 33) 56–62.
123 Ibid., 73.
124 Lafont (n 27) 268.
125 M Bckenforde and others, Judicial Review Systems in West Africa: A Comparative 
Analysis (International Institute for Democracy and Electoral Assistance and Hanns 
Siedel Foundation 2016) 20–21.
126 Bickel (n 113) 16–17.
127 A Vermeule, ‘System Effects and the Constitution’ (November 2009) 123(1) Harvard 
Law Review 6, 38.
128 Kommers (n 28) 173.
129 Ibid., 212 (citing Smend).

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Germans realise that the Court walks a tight rope between law and politics, 
and the justices themselves are acutely aware of their political influence.130

This practice explains why a former president of the German Federal 
Constitutional Court noted that:

[i]ntellectual honesty compels us to state that there is no usable catalogue of 
criteria that could serve as signpost in the ridge-walking between law and 
politics. The two fields of action partly overlap, and cannot unambiguously be 
separated from each other. As the constitutional review body, the Court has a 
share in politics.131

The above practice is also applicable in India where the Supreme Court is 
acknowledged as a political institution,132 and its engagement in ‘astute political 
craftsmanship’ is very well reckoned with.133 The same might be said of the South 
African Constitutional Court, which origin is rooted in post-apartheid politics, 
with its mode of selection of its justices akin to the practice in Germany.134 The 
US Supreme Court has equally been described as a judicial institution with a 
mixture of political and policy-making functions.135

In Nigeria, by virtue of the structure of the Constitution (with the separation of 
governmental powers as one of its core principles), it would appear the Court is not 
empowered to attribute finality to a legitimate action or inaction which belongs in 
the political realm, as the mechanism for constituting the Court makes it incapable 
of proffering enduring answers to political questions. Also, the Court lacks the 
experience and facility to engage in the function of legislating. Yet, it is practically 
impossible for the Court to be completely insulated from such activity because of 
its role as guardian of the Constitution.136

130 Kommers (n 28) 212–213.
131 J Limbach, ‘The Law-Making Power of the Legislature and the Judicial Review’ in B 
Markesinis (ed), Law Making, Law Finding and Law Shaping: The Diverse Influences 
(OUP 1997) 174.
132 S Sathe, ‘India: From Positivism to Structuralism’ in J Goldsworthy (ed), Interpreting 
Constitutions: A Comparative Study (OUP 2006) 261–263.
133 Chandrachud (n 46) 152.
134 H Klug, ‘South Africa: From Constitutional Promise to Social Transformation’ in J 
Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (OUP 2006) 
282–285.
135 R McCloskey, The American Supreme Court (University of Chicago Press 1960) 20.
136 A Nnamani, ‘The Judiciary in the 1990s: Expectation and Challenges’ (1990) 1(3) 
Justice: A Journal of Contemporary Legal Problems 27.



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CONCLUDING REMARKS

From the analysis thus far, it has been shown that the Supreme Court of Nigeria 
exercises considerable power and control over issues which ordinarily belong in 
the political department, in the course of defining the legal rights and obligations 
of parties before it. In Inakoju v Adeleke,137 the Court was of the view that ‘[t]he 
political question doctrine is still in its embryonic stage in Nigeria. Let us not push 
it too had to avoid the possibility of a still-birth. That will be bad both for Nigerian 
litigants and the legal system’.138 Perhaps, this explains the Court’s restraint in 
some cases and why it ignores the age-long norm that courts should not legislate 
from the bench in others. By not exercising judicial self-restraint in matters which 
involve political questions, the Court follows in the path of its counterparts in 
other jurisdictions such as Germany, India, South Africa and the United States in 
walking a thin line between law and politics. More so, by entering the unfamiliar 
political department, the Court is more likely to over step the bounds of its 
judicial powers.

There is also a tendency for the Court to arm itself with the arguments that the 
cases brought before it involve questions of law and facts;139 that the political 
question doctrine does not justify the total and absolute preclusion of judicial 
review, as it would be resisted as a basis of lack of judicial review;140 and that there 
is a distinction between the process of adjudication, which is a non-political 
activity, and the effects of its decisions, which may sometimes be regarded as 
political.141 While adjudication is about finding the law, politics is, by contrast, an 
activity which involves making the law.142 However, because ‘constitutional 
adjudication [is] an inevitable political practice everywhere it occurs, there is one 
thing and one thing only that conscientious judges should do, and that is to openly 
declare the politicality of their decision-making practices’.143 In Nigeria, this has 
become imperative in view of the notion that under the exiting constitutional order 
the Court is deliberately meant and made to be a super Court to the extent of its 
decisions,144 especially in the context where cases involving political questions 
constitute veritable and potential land mines. This is because, in Nigeria, politics 

137 [2007] All NLR 65.
138 Ibid., 85, 117 (Tobi, JSC).
139 Oil Resource Allocation case (No 1) (n 79) 147.
140 Inakoju (n 111) 179, 183 (Musdapher, JSC).
141 Kommers (n 28) 213.
142 Limbach (n 133) 161.
143 Roux (n 35) 279.
144 Adigun (n 7) 344.

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appears not to be a tool for nation building and is yet to develop beyond the struggle 
by political actors to acquire political and economic power for self-aggrandisement. 
This is evident in the rampaging political arrogance145 that may not be unconnected 
with the cultural factor which conceives power ‘as being personal, permanent, 
mystical and pervasive’.146 To this end, in cases involving political questions, the 
Court must aim at making decisions which represent reasoned agreement in 
society.147 Otherwise, such decisions should be reversed, modified or avoided by a 
new law.

145 W Soyinka, Interventions (vol 1, Bookcraft 2010) 239; C Achebe, The Trouble with 
Nigeria (Heinemann Educational Publishers) 9.
146 B Nwabueze, Constitutional Democracy in Africa: Constitutionalism, 
Authoritarianism and Statism (Spectrum Books) 272–273.
147 Tremblay (n 3) 632.