The Act of Judging in Nigeria: A Matter of Interpretation and Judicial Discretion
AdvisorMarsh, Shawn C.
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Since the formation of the Nigerian judiciary, courts have operated using the common law system with the doctrine of stare decisis (i.e., judicial precedents). This doctrine has shaped the context of judging in Nigeria, especially as strict adherence to precedent somewhat impacts the use of judicial discretion in the interpretation of statutes. Judging is not static and does not happen in a vacuum. Rather, judging should change over time and respond to context as strict adherence to precedent alone may interfere with the advancement of justice. Therefore, this thesis seeks to redefine the act of judging in Nigeria to embrace the context of social realities. Its aim is to encourage judges to interpret statutes and apply judicial discretion within important social contexts that are considerate of relevant social views, values and interests (thus interweaving law and society). This thesis examines various judicial approaches to interpretation of statutes and established canons of statutory interpretation and emphasizes that it is now more important than ever for judges to use ‘appropriate’ discretion from a social perspective when interpreting statutes. This is especially the case with ambiguous statutory provisions and constant changes in the law and society. While recommending that legal jurisprudence change as culture and social values changes, this thesis explicitly opposes judging stereotypically based on strict common law principles of precedent currently used most often in Nigeria. The contention that judges should be guided more/as much by social interests, social empathy and changing social circumstances in the interpretation of statutes – and less/as by the established canons of interpretation and judicial precedent – will hopefully engender a necessary and robust debate that could lead to a change in practice in Nigerian courts.
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