The Chief Justice of Nigeria, Ibrahim Tanko Mohammed, recently summoned the Chief Justices of Rivers, Kebbi, Cross River, Anambra, Jigawa and Imo states over conflicting decisions on issues bordering on the chairmanship tussle of the Peoples Democratic Party, PDP, and the gubernatorial candidate impasse of the All Progressives Grand Alliance, APGA, in Anambra State.
In complaining about the “huge embarrassment” which such conflicting decisions have caused the judiciary, the CJN reportedly noted that the decision to summon the chief justices had become more compelling in light of the earlier warning of the NJC to judicial officers to be circumspect in granting ex parte applications.
Earlier this week, the CJN reportedly advised the chief judges to be current on the development in the polity and the judgments delivered by courts of various jurisdictions and to urgently issue practice direction to guide judges in their various courts to avoid giving conflicting decisions.
This is highly commendable as it demonstrates that the Chief Justice of Nigeria is very much aware of the huge responsibilities that come with his role as the Head of the Judicial arm of government and is ready to do all in his power to ensure that the integrity of the Judiciary is not compromised in any respect.
Ex parte orders, for the benefit of those unfamiliar with them, are orders made by courts upon the application of a party to litigation and without hearing from the other side. They are designed to deal with urgent matters which cannot wait service of the processes of court on the other side where incalculable damage is likely to be done to the party seeking the order or the subject of the litigation. Therefore, as has been decided numerous times by the courts in Nigeria, such orders should only be granted where there is a real urgency.
Regrettably, ex parte orders have over the years been abused by judges and lawyers alike. Going down memory lane, on September 17, 2018, the Chief Judge of the Federal High Court, announced that he had issued a directive to Judges of that Court barring them from granting ex parte orders in political cases.
Reporting the development, the Vanguard stated as follows: “Chief Judge of the High Court, Justice Abdul Abdu-Karafati, who gave the directives during a special session the Court held to mark the commencement of its 2018/2019 Legal Year, said the decisions were aimed ‘to forestall any hiccups and the blame of the court by the political gladiators’.
“He said a circular had already been issued to Judges, to the effect “that interim orders ex parte shall not be granted in any political cases brought before the court”. According to the CJ: “I believe that controversies, especially in political cases can be reduced when the court takes a decision after hearing all the parties in the case. It is also extremely important that all political cases that may affect any of the parties which are still pending in any of our courts be concluded without further waste of time to afford all candidates the opportunity to pursue their political ambitions.
Hon Judges before whom such cases are still pending must endeavour to conclude them before the end of October, 2018. I urge your Lordships to be wary in handling all cases and especially cases concerning political parties and the upcoming general elections. We should again use this court and the Constitution to regulate our society for the good of our children and mankind.”
The depth of the abuse of ex parte orders was captured as far back as 1985 when the then Chief Justice of Nigeria, Hon Justice Mohammed Bello, admonished practitioners and judges at The All Nigerian Judges Conference held in Abuja in 1985 in the following words: “The decisions on some of our courts on ex-parte injunction seem to put individual interest over and above the collective national interest in Nigeria.
Public functionaries have been restrained without being given a hearing from performing their constitutional and statutory duties at the instance of an exuberant individual. I had the occasion to point out early this year that it was only in Nigeria that a court of law would restrain a university by order on an ex-parte injunction from holding a convocation to award degrees to over a thousand students, who had passed their examinations.
A court of law denied its deserving students their degrees because two students who had failed the examinations had applied to the courts for a declaration that they too were entitled to be awarded degrees. Indeed, there is an urgent need among some of us, the judges should appreciate that ex parte injunction which was devised as a vehicle for the carriage of instant justice in proper cases should not be converted into a bulldozer for the demolition of substantial justice. We should all realise that justice should be done to public functionaries and public institutions.”
Sadly, the history of our country is replete with instances where the Judicial arm of government has been accused, on account of the grant of ex-parte orders, of having played an inglorious part in activities which have delayed, if not outrightly scuttled, the country’s aspirations to the enthronement of full democratic practices.
The most notorious of these instances, without doubt, are the events surrounding the cancellation of the June 12, 1993, presidential elections. Since that ignominious event, the Judiciary has tried to restrict itself to the impartial consideration of political disputes.
Thus, the interest of the Judiciary through directives such as that of the Chief Judge of the Federation to ensure that politicians do not unduly drag judicial officers into the murky waters of politics is not unfounded.
While it may be debated whether much has been achieved in this regard, what cannot be disputed is the resolve to place the judiciary and decisions of courts, well above political machinations and considerations.
Continued sensitisation
Indeed, this resolve was also underscored by the former Chief Justice of Nigeria, Hon. Justice Walter Onnogen, when at the ceremony of the Federal High Court to mark the start of the new legal year, he stated that:
“My Lords, as the election year draws closer, your courts will be flooded with applications bordering on pre-and post-election matters requiring adjudication. No doubt, election litigation is an inevitable part of the electoral process. While INEC has the responsibility to conduct and manage elections, the judiciary on its part is charged with the responsibility of resolving disputes arising from the process. We must, therefore, ensure that matters brought before our courts are determined on their merits, devoid of any external interference, to ensure the sustenance of the independence of the judiciary”.
However, despite the propensity of ex-parte orders to abuse, I am of the view that they should be retained and that judges should be permitted to grant them in exceptional cases. Numerous instances abound in which the intervention of the court must be sought and obtained to ensure that the subject matter of the case is not lost.
Therefore, what is required is continued sensitisation of judges regarding the yardsticks, well established through a long line of cases, upon which ex-parte orders can be granted. As stated earlier, the most important of these is the requirement that they must only be granted in cases of real urgency. Furthermore, lawyers should also be sanctioned where they run foul of these principles or where they demonstrate a clear intention to abuse the procedure.
In my book Injunctions and Enforcement of Court Orders published in 2002, I stated at page 26 as follows: “Notwithstanding the much-reviled abuse of the order of ex parte injunction by some judges and legal practitioners, the remedy of ex parte injunction remains part of civil procedure law in Nigeria. It is, therefore, wrong for a judge to have made up his mind against granting ex-parte order of injunction regardless of the merits of the ex-parte application. It is strongly suggested that every ex parte application be treated on its own merit.”
I remain of the same conviction and I join the Chief Justice of Nigeria in calling on judges and lawyers alike to continue to uphold, as they have largely done through the decades, the highest tradition and ethics of the profession.
VANGUARD
