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‘Introduction of new practice direction will resolve problem of conflcting judgments’

By Joseph Onyekwere
23 August 2016   |   4:26 am
The drama of courts of concurrent jurisdiction churning out conflicting decisions on the same subject-matter got to a crescendo last week, when a federal high court in Abuja gave an order ...
Ananaba (SAN)

Ananaba (SAN)

The drama of courts of concurrent jurisdiction churning out conflicting decisions on the same subject-matter got to a crescendo last week, when a federal high court in Abuja gave an order, halting the proposed national convention of the Peoples Democratic Party (PDP) in Port Harcourt. It was contrary to an earlier order by the same court in Port Harcourt directing security agencies to ensure a smooth and peaceful conduct of the exercise. Dr. Paul Ananaba (SAN), in this interview with JOSEPH ONYEKWERE, said the way out of the embarrassing situation is to develop a new practice direction that ensures judges do not adjudicate on cases already in another court.

The issue of conflicting judgments has now assumed a greater dimension due to the PDP crisis. What do you think is the implication of such developments in the Nigerian judiciary?
It is worrisome, confusing and a very wrong development in our laws. The judiciary is the last hope of the common man and should remain so. Even when all other arms of government are failing, it should not be the judiciary, particularly when you have such issues that have very wide implications like the PDP case. A decision has been giving by a federal high court sitting in Port Harcourt, approving the convention. One would have expected that the convention should go on, since it has been approved by that court. Even if there are issues, they could have been resolved in other ways. A restraining order few days to the convention, when you know what is involved such as contracts, logistics and hotel accommodations have been booked is worrisome. This puts the judiciary in some form of ridicule, because people are saying; look at what your judges are doing? Since both judges are of the federal high court, they are deemed to have taken judicial notice of earlier judgments. I expect that that should not continue. It should be discouraged. Incidentally, the same has happened in Abia.

So it happens too often, too soon. One would have expected that what happened in Port Harcourt, should not have happened. The Police condoned off the venue of the PDP convention and said that they were acting on court orders. As a result, the convention could not hold on the advertised venue. So the blame is now being shifted to the judiciary, which is a highly respected arm of government. So the implication is that you can pick and choose the particular orders to obey. So, if you obey any of the orders, you would not be held in contempt. So when there are conflciting judgments or rulings of courts of concurrent jurisdiction, you can choose which one to obey.

That is the implication for litigants, but what of the implication to the system?
I have made the point that it ridicules the judiciary. Even those who know what the judiciary is and those who don’t know, are full of negative commentary about the judiciary. And not long ago, the federal government had blamed the judiciary as responsible for failure in most of what they do.

What do you think is the solution?
National Judicial Council (NJC) should go to work. Any judge found culpable in this kind of thing should be sanctioned to serve as a deterrent. Two, there should be a practice direction that similar cases like that should be transferred to where the previous one is on, to avoid such developments and judgments of each divisions of the court should be electronically transmitted to all the judges, so they would not claim that they dont know. Also, lawyers in all those matters have the duty to bring to the knowledge of a judge all known judgments relating to a matter.

In all these, has not the Supreme Court made any decision in respect of conflicting decisions in the past?
These are not regular occurrences. It used to happen at the various divisions of the court of appeal, but the Supreme Court would promptly correct it. Some lawyers argue that it is the last judgment that would prevail. But my position is that it shouldn’t happen at all. The judiciary should speak with one voice, give one direction so that there would be certainty in law and there is no ridicule of the judicial process. The judiciary remains the last hope of the common man. If people lose faith in the judiciary, anarchy will loom. That is not what we expect from a country as Nigeria. The two recent conflicting decisions have political undertones. They are in respect of electoral and political affairs.

You are saying NJC should sanction erring judges, how do you find a judge culpable when he might argue that he is adjudicating on what was brought before the court?
None of those cases were ex-parte. Each of the judges knew because it was in the public domain.

So who withdrews for the other? It appears there are ego issues here?
There is no ego issue in the judiciary. The federal high court that we are discussing has a chief judge, who can come in under such circumstances.

What would the chief judge do, because he might also be careful not to be seen as interfering in the process of adjudication?
It is not a matter of interference. Judges are brothers. They are not there to compete about who is bigger than the other. The chief judge (CJ) is there like a captain; they are all team members. There are issues and files are being transferred everyday. So, I would be surprised, if a judge should query while a file should be transferred from him. Naturally, what the chief judge should do is: my brother judge is hearing this matter already, let’s take the file to him to complete? Matters should not be heard in piecemeal.

What do you think is the reason these are happening?
Perhaps, we have not been taking the questions of conflicting judgments from courts of concurrent jurisdiction very seriously. Remember, it can only happen in the court of appeal or the federal high courts. In the states, their geographical area is smaller. It may not likely happen.

Are you saying wide geographical division is a factor?
It affects the matter. Like I said, we need to develop practice direction for the judges, that once a matter is before a brother judge, and the judge is informed, he hands off and return the file to the CJ. In that case, nobody is interferring but complying with a practice direction.

Must a judge need a practice direction to know that he needs to hands off matters existing in a sister court?
Since we have seen that that assumption has not worked out, practice direction will do. We have had instances where judges returned files because the matter is before another judge. I have seen several of such. So, since it is not happening in political related cases, practice direction should come to the rescue. Then, it becomes mandatory.

Will it be right to say that ex-parte orders are being abused in this jurisdiction?
Yes, injunctions are being abused on daily basis, despite all that superior courts have been saying. I am not for complete abrogation of ex-parte orders, but they are used in appropriate circumstances; not to steal a match, not to void a process. Even after a process has taken place, the court can still interfere without unnecessary injunctions. Sometimes, accelerated hearing becomes a remedy. Rather than granting an injunction, matters can be heard on a day to day basis and judgment delivered.

With this development, what is your view of the disciplinary role of the NJC?
They are working and I expect them to look into this. In the last two months, some judges have been dismissed and others are still facing panels, though not to the knowledge of the public. You only hear when they are indicted.

Can you make a distinction between forgery and false declaration?
If false declaration is on oath, it is a criminal offence. It’s pejury. Both of them are criminal offences.

If there should be a legal action, what is the best way to approach it?
The person’s right to freedom could be restricted by that process. So, the person is arraigned and the charge is read. He pleads guilty or not guilty and the trial is taken. But it needs to be proven by evidence. There are defences under the criminal code or the administration of criminal justice Act, as the case may be.

What if it occurs for someone who has immunity?
Of course, except it happens in a place where immunity is not recognised, otherwise, immunity in Nigeria extends to both civil and criminal offence. Immunity is not only for civil offences, it includes criminal offences.

Will you support immunity for principal officer of the parliaments?
I am not a supporter of absolute immunity even for governors and president. My prescription is that immunity should be there, even for leaders of the National Assembly. But this immunity will not be absolute. For civil actions, immunity will be absolute, but for criminal offences, which are capital offences and corruption offences, the immunity could be waived by the Supreme Court. That is, if there is a criminal offence, the prosecuting agency would bring application to the Supreme Court and seek for orders to waive the immunity of that individual at that instance and give grounds why such immunity should be waived. Once the Supreme Court does that, the person will stand trial. What is the essence of immunity? To avoid distractions through frivolous litigations. But that can be stemmed easily by making the immunity subject of waiver by the supreme court and I think that is reasonable. So, I have nothing against immunity for principal officers of the parliaments. From what we have seen in respect of the prosecution of the principal officers of the national assembly, it has become necessary that they should have their own immunity. The executive and judiciary leaders have immunity, so they should have theirs and each of them not absolute, subject to a waiver by leave at the Supreme Court.