THE era of conflicting orders by courts of coordinate jurisdictions has reappeared recently, mostly over political party power tussle, as seen in the cases of Mr Uche Secondus, stopped from parading as the national chairman of the Peoples Democratic Party, PDP, and All Progressive Grand Alliance, APGA, Anambra State governorship candidate in the November 6, 2021, poll, Charles Soludo.
This has prompted a worried Chief Justice of Nigeria, CJN, to summon six Chief Judges, of the state High Courts, namely Rivers, Kebbi, Cross River, Anambra, Jigawa and Imo over the development.
While the CJN must be commended for his prompt action, Vanguard Law and Human Rights sought the views of lawyers on how this trend can be stopped?
Those who spoke include: former Nigerian Bar Association, NBA, President, Dr Olisa Agbakoba, SAN; Mr Norrison Quakers, SAN; Mr Yemi Candide-Johnson, SAN; Prof Sam Erugo, SAN; Mr Babatunde Fashanu, SAN; Mr Yomi Alliyu, SAN; Chief Uche Onyeagocha; Mr Adindu Ugwuzor; Mr Yemi Omodele; Mr Gideon Okebu; and Sonnie Elimihe.
Excerpts:
NJC must take urgent step to stop this malpractice –Agbakoba, SAN
Dr Olisa Agbakoba, SAN, in his reaction, said: “This recurring trend of absolutely ridiculous conflict in rulings and judgments of courts of coordinate jurisdiction tarnishes the image of the judiciary. The strongest possible measures and sanctions must be applied to any judicial officer who violates the code of judicial conduct.
“In one of the cases, I have difficulty in understanding how a Judge sitting in Jigawa State will presume to have jurisdiction in respect of election matters arising from Anambra State politics. This is clearly prima facie evidence of gross judicial misconduct. The NJC must take urgent steps to stop this malpractice.”
NJC should start disciplinary actions against erring judges –Quakers, SAN
For Norrison Quakers, SAN, he submitted: “The intervention of the Chief Justice of Nigeria CJN, though commendable, but unnecessary when reviewed and examined against the existing directive of the National Judicial Council, NJC, the constitutional body responsible for the exercise of disciplinary powers over judicial officers and setting down and being responsible for policy issues and justice administration in micro and macro terms.
“There is an NJC directive on the granting of ex-parte applications by judges, which carries with it sanctions, as such any judicial officer found to have disregarded or brazenly flouted the directive must be made to bear the consequences. It was the great jurist, Justice Nike Tobi, JSC (of blessed Memory), who warned judicial officers to be careful of politicians and keep them away from the hallowed Chambers of justice, so as not to allow them pollute the stream of justice. What we are witnessing now is not just the pollution of the stream of justice but the stench oozing from the stream.
“As it is, the only remedy is for the NJC to kick start and deploy the disciplinary mechanism vested in it by the Constitution against the judges involved and for the Legal Practitioners’ Disciplinary Committee, LPDC, to deal with the erring lawyers for such scandalous and brazen disregard to ethics of our profession as encapsulated in our rules of professional conduct. This trend has continued because there are no consequences for bad behaviour in our clime. This is a major hindrance to investment, when a legal system is not vibrant, strong, efficient and effective.
“In the case of Buhari v. INEC (2008) 19 NWLR (PT.1120) [email protected] Justice Niki Tobi JSC stated thus; “the expressions “politician” and “Judge” are opposites, so to say, in their functional contents is above, though not in their ordinary dictionary meaning their waters never meet in the same Rivers Niger and Benue meet at the confluence near Lokoja. If they meet, the victim will be democracy most of the time. And that will be bad for sovereign Nigeria. And so Judges should on no account dance to the music played by politicians because that will completely destroy their role as independent umpires in the judicial process. Let no Judge flirt with politicians in the performance of their constitutional adjudicatory functions.”
“This statement is very apt as we are witnessing the flirtatious relationship between politicians and judges fuelled by those saddled with the responsibility to addressing the judiciary as advocates. The current situation is worrisome.”
This type of judicial confusion points to corruption, incompetence –Candide-Johnson, SAN
Yemi Candide-Johnson, SAN, in his response, said: “this is not a new phenomenon. The intervention of the CJN is not at all timely and I fear that it may be merely a photo opportunity. This type of judicial confusion points to corruption and incompetence and the fact that it is rife suggests that wide sections of the judiciary are willing to suborn their office for private profit.
“It’s a disgrace and a scandal and the CJN knows that massive dismissal of judges implicated in misconduct is the only solution.”
If there is abuse of process, there are provisions to deal with that –Fashanu, SAN
Babatunde Fashanu, SAN, is of the view, that “While one does not support such conflicting orders in such circumstances, are the Judges not entitled to make their respective orders based on what was put before them? If there is abuse of process, there are provisions to deal with that. A Chief Judge of a state summoning a Judge in his jurisdiction over an order, ruling or judgment he made in his court would be illegal if not horrific but for a CJN to do that to Chief Judges over their Judges’ orders is a big dip south in the nation’s search for a just and fair judicial system.
“I actually thought the CJN was misquoted until I confirmed it in major news media.
“This is not the first time Judges have issued conflicting orders in political cases, it dates back in time. A Judge sits alone and is not expected to do an ostrich over what another Judge is doing when it’s not before him. It happens sometimes at the Court of Appeal too due to the many divisions. Please, let the system sort it out and not through this sort of administrative interference with judicial independence.
“No doubt, on the face of it, some of the orders were nauseating for what is the urgency in Secondus sitting as Chairman of PDP or not to warrant the orders made ex-parte (without hearing the other side) that cannot wait for a few days to enable the other side be served and heard on the application before a decision is made or what is the interest of the applicants in the matter? “However, if there is abuse of the seat of the Judges involved, let due process ensue and not by administratively summoning the Chief Judges of the respective Judges. This sets a bad precedent which can lead to abuse in the future notwithstanding that the CJN’s motive may be pure and corrective.
“On a much wider note, all actors in the justice field from the CJN to the CJs to the Judges to the legal practitioners, NBA, BOSAN, law academicians and law administrators ought to come together at appropriate fora which can be engendered by the CJN, CJs and the bodies aforementioned among others to thrash out how to effectively prevent abuse of ex-parte orders and to dish out appropriate punishments to those found to be abusing them after due process.”
Regulatory bodies should take prompt action to punish erring members–Erugo, SAN
Prof Sam Erugo, SAN, is of the view that “The conflicting orders by courts of coordinate jurisdiction are embarrassing to the judiciary in particular, and the legal profession generally. It is an avoidable trend, but only if the judges who preside over the cases, and the lawyers who present the cases advert their minds to the ethics of the profession.
“I doubt that these are cases of incompetence, which are possibilities, but these are most likely cases of inducement and bad judges. Yes, we commend the CJN for his prompt invitation of the supervisory head of the courts from where the orders were procured and the NBA leadership that had condemned the development in strong terms. Nigerians expect them to do more as heads of the judiciary and NBA.
“The truth is that the trend can be checked. And this is simply by the regulatory bodies taking necessary and prompt action to punish erring members whenever the need arises. After all, crime and punishment are vital ingredients of the rule of law, and no proved case of impunity should go unpunished. The NJC and NBA both have capacity to discipline judges and lawyers involved in making and procuring orders, in established cases of abuse of judicial process. These bodies have been active, they have satisfactorily dealt with similar cases in the past, and probably need to be faster in handling the cases to check the trend in political cases.
“Again, there is need for continuous reminder, warning, training and re-training of our judges on value and ethics. There is also need for continuing legal education for legal practitioners, particularly on ethics because of the overwhelming ethical dilemma that lawyers face in the face of increasing economic pressure. It appears that the value component is gradually disappearing in the way and manner of many public officers in Nigeria, and lawyers as well. This is a dangerous dimension in the judiciary.”
We should not play to the gallery on ex parte orders –Alliyu SAN
Yomi Alliyu, SAN, on his part said: “Even the Supreme Court have split decisions and so the trend cannot stop, especially where the court have jurisdiction, because they are all courts of coordinate jurisdiction.
“Even at the Supreme Court, you have split decisions, the most recent been Ondo State gubernatorial election appeal. PDP like any other political party can be sued from anywhere in Nigeria where they have presence. PDP was always represented in these courts. Each judge decided the matter as he saw it. As such if he has jurisdiction, youu cannot query his decision.
“We should not play to the gallery on ex parte order of injunction. It was the same thing used to remove a sitting Chief Justice of Nigeria and that not even from a regular court.”
Judiciary should resist the temptation to be corrupt –Onyeagocha
Uche Onyeagocha, former House of Reps member, suggested “That the judiciary should resist the temptation to be corrupt and the only way to stop it is for the Superior Courts to be exemplary. A situation where the lower courts notice that the Supreme Court and other Superior Courts have been compromised and have become cash and carry courts, they simply copy and paste in their jurisdiction. This is simply captured by the principle of stare decisis, which principle has been thrown to the dogs.
“Rule of law requires a lot of discipline to implement. It does not discriminate according to parties. Courts must guard jealously the independence of the judiciary as an arm of government. At all times, the executive will want to have their way against the other arms. Independence of the judiciary can only be protected when the judiciary is not corrupt. The Executive and Legislative arms often aim at corrupting the judiciary. Unless the judiciary resists the temptation to be corrupt, road side and market place orders of Court will remain a common place in our polity.”
CJs should equally be reprimanded –Ugwuzor
Adindu Ugwuzor, on his part, said: “It can be stopped by immediate suspension of the Judges involved. Thereafter, NJC will issue queries and thereafter, recommend them for dismissal. The case of Egbo Egbo and others are still fresh in our minds. The Chief Judges should equally be reprimanded.
“They are to make sure that all politically motivated cases are brought to their attention before being assigned to a Judge. That way, they will know cases that are not within their territorial jurisdiction, hence, there will be no need to hear such matters in the state. Again, the lawyer that is forum shopping from one state to the other should be referred to LPDC for necessary action.”
Train judges on effects of conflicting judgments on integrity of judiciary –Omodele
Yemi Omodele, said: “With due respect to the bar and the bench, I think what brought about the so called conflicting orders made were as a result of what lawyers and litigants brought before the court.
“Cases are treated based on their merits. The steps taken by the CJN is in order; the Nigerian Bar Association, NBA, has also issued a statement on this development. These are necessary at this stage. To put an end to this ugly problem, I think there should be training and retraining of the judges and the litigation lawyers primarily on the effects of conflicting judgments and orders on the integrity of the judiciary.”
Erring judicial officers should be sanctioned –Okebu
Gideon Okebu, reasoned, “The legal system in Nigeria is built and remains reliant on the principle of stare decisis, which simply means stand by or follow the decision. This principle obligates lower courts to follow the decision and precedents of superior Courts. However, Courts of Coordinate jurisdiction are not bound by decisions of other courts of coordinate jurisdiction, those decisions merely have persuasive effects on the court.
“The later principle is what has given rise to the onslaught of conflicting decisions emanating from courts of coordinate jurisdiction. However, it is pertinent to note that in other climes such as the United States of America, decisions of courts of coordinate jurisdiction are entitled to what is called Full Faith and Credit and the full faith and credit clause is embedded in the US Constitution. This means that the judgment of another court of coordinate jurisdiction which exercised proper jurisdiction over a case, is entitled to have that judgment upheld in other courts.
“Conversely, in Nigeria, you find a situation where the “same court” e.g the National Industrial Court, is presented with an earlier decision of a judge of that same court on the same subject and relating to the same principles, but the later judge wilfully and disdainfully disregards the decision of his learned brother judge even though such judgment is not subject to appeal nor has it been upturned. This honestly has plunged the judicial system into chaos and confusion, one never knows what to expect on the same issues of fact and law before the same court.
“Recently, the chief justice of Nigeria in his address to justices of the court of appeal in Abuja during the annual Judicial conference, commented on the negative perception occasioned by conflicting judgments and reiterated the need for this development to be curbed. The Chief Judge of Nigeria also emphasized that contradicting judgments result in untold hardships to litigants in their quest for justice.
“In conclusion, my humble opinion is that some of the following steps can be taken to curb this menace: Step one: I suggest that all decisions of courts of coordinate Jurisdiction must follow applicable judicial precedents and where a court of coordinate Jurisdiction has delivered an earlier decision which hasn’t been set aside, and such decision is brought to the knowledge of the later Judge, such judge must give such decision Full Faith and Credit.
“Step two: That Judges who fail to accord Full Faith and Credit to decisions of courts of coordinate Jurisdiction, without good showing as to the reason for deviation, e.g lack of jurisdiction of the earlier court, should be sanctioned. Such sanctions can include dismissal in the event of repetition of such action.
“Step three: Another solution to the issue of conflicting decision of courts of concurrent jurisdiction is that all Attorneys must compulsorily only institute actions in judicial divisions where the cause of action arose or where the defendant resides, this would prevent or reduce multiplicity and conflicts at different courts in the state of Nigeria.”
The trend has become increasingly worrisome –Elimihe
Sonnie Elimihe, said: “In the past, the judiciary was the last hope of the common man and the ordinary citizen. Today, the Nigeria justice system is gradually becoming a shadow of itself. The grant of ex-parte or interim orders is necessary and relevant to our judicial system because it’s usually granted to protect the res of litigation in cases of extreme urgency or where there’s serious danger or triable issues that may likely be destroyed.
“But today, more especially in political matters, most Judges have constantly abused and continue to abuse the grant of ex-parte orders in order to favour or satisfy the interest of the calibre of the individual involved and thereby, leading to inordinate issuance and abuse of conflicting orders. This trend has become increasingly worrisome and if not urgently tackled, God forbid it will definitely destroy the sanctity of our judiciary.”