Jurists urge sanction against lawyers, judges issuing frivolous ex parte orders
Worried about the incessant conflicting court orders from courts of co-ordinate jurisdictions in political matters, eminent jurists have urged the National Judicial Council (NJC) and the Legal Practitioner’s Disciplinary Committee (LPDC) to sanction erring judges and lawyers involved in the shameful acts to save the justice system from disrepute.
Speaking at a virtual conference organised by the Nigerian Bar Association (NBA) Section on Public Interest and Development Law (NBA-SPIDEL), the jurists warned that unless urgent steps are taken to curb the malaise, the justice sector risked losing public confidence.
Anchored by former NBA-SPIDEL Chairman, Prof. Paul Ananaba (SAN), the current Chairman, Dr. Monday Ubani noted that the conflicting orders are “clearly of grave concern to the Bar and Bench, more so, when members of the public are raising alarm that the judiciary has become complicit with politicians to truncate our political and democratic system.”
Speakers at the conference themed “Contradictory ex-parte orders of courts over political cases: Implications and consequences” included former Supreme Court jurist, Olabode Rhodes-Vivour (CFR); Ondo State Governor and former NBA President, Governor Rotimi Akeredolu (SAN); former NBA President, Mr. Joseph Daudu (SAN); NBA President, Mr. Olumide Akpata; Prince Lateef Fagbemi (SAN) and Chief Justina Offiah (SAN).
According to Justice Rhodes-Vivour, who gave the keynote address, while ex-parte order must remain a part and parcel of Nigeria’s justice system due to its utility, there are certain conditions that must be met before the grant. His words: “The court should grant an ex parte (interim) injunction if irreparable or serious mischief would result if it is refused. If satisfied that the delay caused by proceeding in an ordinary way might entail irreparable or serious mischief, the court may make a temporary order ex parte upon such terms as it thinks fit. It must be an exceptional case which is serious and unjust.”
He warned that ex-parte orders “should last for a short time, between five and seven days and the judge issuing it should do well to state it,” adding that unnecessary adjournments should not be granted to beneficiaries of ex parte (interim orders).
According to him, an ex parte injunction will generally be granted only after the writ of summons (originating process) has been issued. The only exception, he said, is if the circumstances of the case are very urgent.
He observed that judges and lawyers know the guidelines very well, adding that resurgence of ex parte orders occur mostly during the run-up to elections because the stakes are “too high.”
Justice Rhodes-Vivour advised heads of courts to “stop this annoying practice of assigning cases on the same subject matter to different judges, who very likely would render conflicting decisions, ending up making the judiciary a laughing stock. Trial judges must also be on the lookout, and refrain from proceeding with any case when aware that his brother judge is handling a similar matter.”
He noted that the Justice Kayode Eso Panel led to the imposition of sanctions against erring judges. “This was the period when judges admitted that the fear of the NJC is the beginning of wisdom. Legal practitioners who make it a practice to file suits outside the jurisdiction or to obtain ex parte orders knowing full well that a similar order had already been obtained but not favorable to him has clearly infringed the rules of professional conduct and should be sanctioned by the judge before whom he appears or reported to the disciplinary council of the bar,” he suggested.
Akeredolu stated that while a litigant has a right to bring up any matter, it is the duty of the lawyer to advise his client on the merit or otherwise of the matter.
He said: “Where lawyers have failed, we must take responsibility for it. Every politician will want to take advantage. There is use for ex parte order, but there is also abuse.
“The court also has a duty and a judge has a duty. Judges must put their feet down and indeed show that they are the masters of their courts; anybody can bring a useless application, but it is for the judge to strike it out. If the lawyer persists by taking the matter to another court, that is an abuse of court process and he can be disciplined.”
He queried the purported extra-territorial jurisdiction of the Federal High Court. According to him, the courts do not have extra-territorial jurisdiction.
“I believe the time has come for the Federal High Court to define its jurisdiction in a way that you cannot go beyond where you are located, just as it obtains with the Court of Appeal,” he suggested.
In his contribution, Daudu condemned frivolous ex parte applications and orders, saying that they not only pollute the justice and judicial system, they are a danger to the nation’s democracy.
He advised that very stringent punishments of a deterrent nature ought to be agreed upon and scrupulously applied by the gate-keepers of the two branches of the profession on erring judges and lawyers.
Fagbemi stated that conflicting ex parte orders are a product of a fundamental defect of how people enter the profession or are appointed into the Bench.
“At times, the judges are not corrupt, but it is, with due respect, a disease of the head. A disease of the heart or corruption is also there. We have to review this issue of appointment of judges. We must shun nepotism and allied vices,” he stated.
He argued that unless in very extreme cases, there is no reason for matters to travel offshore, that is, from the base the matter has arisen. “Chief Judges should also know the expertise of their judges as a guide in assigning cases,” he said.
Fagbemi warned that there is a need to “distinguish between the display of scholarship and display of rascality,” adding that some cases are so serious that the NJC should not wait for anybody to complain.
“Given that social media has made the world a global village, the NJC should immediately call the judges concerned for an explanation once they read about these reports and issue them with queries if they are not satisfied with the explanations.
“If the NJC is overwhelmed, the State Judicial Service Commission is also there. The public should also be involved in the appointment of judges. Decisions on complaints should be made public in a timely manner,” he suggested.
On her part, Offiah stated that ex parte applications and orders do not intrinsically infringe people’s constitutional right to a fair hearing.
“The problem is not in the ex parte order but in the manner it is being deployed to achieve purposes contrary to the rule of law,” he pointed out.
She condemned ex parte orders, which are declaratory of the rights of parties. “Such orders which conclusively determine the right of an aspirant to contest an election as a flagbearer of his political party clearly negates the principle of rule of law and negates the purpose of ex parte orders, giving a conclusive determination on the merit.
“Members of the bench and bar should review their attitude, as we do not lack guidance either by way of statutes or rules of court or decided authorities on the purpose or use to which ex parte orders can be put. We are not just doing the right thing,” he emphasised.
In his goodwill message, Akpata commended the NBA-SPIDEL leadership for putting together the virtual conference.
He added that the NBA is extremely worried by the state of affairs. He cited the “absence of sanctions” as a reason for the malaise, adding that the association has set up an investigative committee on the matter and that those found culpable would definitely be made to face the music.
“I am hopeful that the steps being taken by my lord, the Chief Justice of Nigeria so far through the NJC would also yield results. I believe that if the judges and our members know that there are sanctions for their actions, they would sit up and do the right thing,” Akpata declared.