Reformative Justice System (RJS): Need To Revisit Manipulative Judicial Approaches In Judicial Activism

By Prince Ahmed Aderoju Adewoyin, LL. B, LL.M. BL., CSE

Activism could be defined as a doctrine that highlights specific course of actions for or against a side of a controversial issue.

Admittedly ,in practice, activism could be socially propelled or politically channelled but the unique characteristic of activism, as a concept, is inherent dynamism.

However, applying the above definition to judicial actions or official acts of judicial officers in an empirical manner, Black’s law Dictionary,¹ defines judicial activism as:

‘’Judicial philosophy which motives judges depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of appellant judges. It is commonly marked by decisions calling for social engineering and occasionally these decisions represent intrusions in the legislative and executive matters.’’
Judicial activism is ‘an approach to the exercise of judicial review, or a description of a particular judicial decision in which a judge is generally considered more willing to decide constitutional issues and to validate legislative or executive actions.’¹a
Evolutionarily, judicial activism, stemming from the US Supreme Court judicial review in Marbury v Madison², was first introduced in Nigeria by the Supreme Court in January 1947³.

This doctrine was earlier applied in Adegbenro v Akintola⁴. In other words, judicial activism is a judicial philosophy to the effects that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is antithetical to judicial restraint.

For instance, the growing spate of the Nigerian justice system shows that judicial activism is required in order to achieve the desired object of justice.

Though it is believed that judicial activism could lead to transcendence by the judiciary, of the statutory boundary to strictly adhere to interpretation and/or adjudication of plain meaning of statutory wordings rather than seek to innovate, super-impose or supplant legislative intents, but in the Nigerian disposition and justice system, if allowed to thrive, it will be the harbinger of plethora of innovative feats in that: –

It will serve as a veritable access to desired justice in cases before the court.

2. It will enable courts to further create new laws where principles are applied to facts arising from new situations.

3. It will be used as a counter balance to judicial indolence.

4. It will enable the judiciary to make reviews when necessary.

5. It will enable the judiciary to depart from ‘’ lex lata ’’ (the law as it exists) and interpret the law as it ought to be where strict application is likely to subvert justice or end in injustice.

6. For instance, it must be noted that section 6 of the constitution of the Federal Republic of Nigeria 1999, as amended, empowers the judiciary to interpret the laws.

Interpretation of the law is part and parcel of the vital responsibilities of the judiciary as the third arm of government.

The basic approaches include:-

Literal rule approach: – observe ordinary and natural meaning of the words of the law. See Bronic Motors Ltd & Anor v Wema Bank Ltd⁵.

B. Mischief rule approach: – looks at what was the law before the legislation so as to discover the gap or mischief the legislation intended to address. See Balogun v Salami⁶.

C. Golden rule approach: – gives an implied interpretation where plain or ordinary meaning of law will result in absurdity. See Becke v Smith⁷ and Council of University of Ibadan v Adamolekun⁸.

D. Ejusdem Generis rule approach: – postulates that where particular words of the same class are followed by a general word, the meaning of the general word will be limited to things similar to the class of things earlier enumerated. For instance, in Nasr v Bouari⁹, Supreme court in deciding whether premise used partly as a living accommodation and partly as a night club were within the meaning of section 1 of Rent control (Lagos) amendment Act 1965. The Act defined premises as a building of any description occupied or used by persons for living or sleeping or other lawful purpose as the case may be, whether or not anytime it is also occupied or used under any tenancy or as a shop or store. The court held that ‘’other lawful purposes must be confined to purposes similar to living or sleeping’’ and further held that premises partly used as nightclub were not premises within the meaning of the said law not withstanding it was also partly used for living.

E. Broad and wholly rule approach (of constitution): – states that make provisions of the constitution must be wholly and broadly interpreted and not in isolation in case of any dispute. See AG Rivers State v Federal Internal Revenue Service & Anor¹⁰.
F. Beneficial rule approach: – indicates that where possible interpretation is wider in meaning and another is narrow, the wider in meaning is always adopted by the court being more beneficial for the development of the law. See Savannah Bank of Nig Ltd v Ajilo¹¹.
G. Specific provision rule approach: – is to the effect of court being faced with conflicting interpretations, one specific and one general, it gives credence to specific over general interpretation.

H. Expression Unis Est Exclusion Alterius Rule Approach: – means express mention of one thing excludes another that is where an Act specifically mention one or more members of a class means deliberate exclusion of those not mentioned. See Udoh v Orthopaedic Hospital Management Board¹².
Therefore, based on the ordinary meaning of the legal text, the judges endeavor to secure the appropriateness of a particular verdict within the larger structure of the gamut of the law with the use of textualism to interpret the law. This is jurisprudentially referred to as manipulative interpretation of the law in the art of judicial activism.


60th Ed. (centennial Ed 1891-1991)
by Arthur Schlesinger.
(1963) All NLRL
(1983) LLJR SC, Per Nnamani JSC
(1963)1 SCNLR, 229
(1836) 2 M & W 191
(1967) ANLR 225 SC
(1969) LCN/1734, SC
FHC/PH/CS/149, 2020 Judgment delivered on 9 August 2021.
(1989) NWLR (pt 97) 305
(1993) 7 SCNJ (pt 11) 442-443.

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