The judiciary and the menace of ‘black market’ injunctions

The phrase, “abuse of judicial process”, is probably one of the most popular expressions in the realm of adjectival law. Though incapable of a precise definition given its diverse manifestation, it has come to be associated with any unwholesome or unscrupulous use of the process of Court to achieve nefarious ends often at the irritation or embarrassment of an adversary. To this end, our case law is replete with admonitions on judges to invoke their inherent powers where expedient, to prevent the abuse of the judicial process so as not to bring the administration of justice to ridicule. 

Yet, no matter how this salutary admonition has been chorused through the leaves of our Law Reports, our experience, unfortunately, shows that it is often observed in the breach. And nowhere has this judicial menace reared its head more, than in political cases.

Recent developments in the polity seem to suggest that we are again, at that ugly, but a familiar curve. And as 2023 approaches, we’re likely to see more of it. Two days ago, it was widely reported in the media that the Chief Justice of Nigeria— Ibrahim Tanko Mohammed had summoned the Heads of Courts of six states of the Federation; namely Anambra, Kebbi, Imo, Cross River, Rivers, and Jigawa States over recent controversial Ex-parte Orders that have proceeded from their domains in some political cases.

In Rivers, Kebbi, and Cross River States, for example, we saw how conflicting Ex-parte Orders by Courts of Coordinate Jurisdiction in the ongoing People’s Democratic Party’s (PDP) leadership crisis within a six-day period, created a jurisprudential crisis that has only served to deepen the crisis within the party.

In one judgment, a High Court sitting in Port Harcourt granted an Ex-parte order restraining Prince Uche Secondus from acting as the Chairman of the PDP and adjourned the substantive suit to a later date to be heard on Notice. However, no sooner had the order been granted than another Judge of coordinate jurisdiction in far away Kebbi State; some 1,114 kilometers from Port Harcourt entered another Order setting aside the Orders of the Port Harcourt Court and equally adjourning the substantive suit to a later date. But like a game of Roulette; before the enrolled order of the Kebbi Court could be sealed, yet another Court of Coordinate Jurisdiction; this time in Calabar, Cross River State, delivered another ruling in an Ex-parte application, restraining the self-same Prince Uche Secondus from parading himself as the Chairman of the PDP, and stopping him from seeking re-election as the National Chairman of the Party.

On the other hand; in Anambra, Imo, and Jigawa States, some High Courts have issued controversial judgments and rulings over the forthcoming Anambra State gubernatorial election thereby throwing the Electoral Commission into a state of confusion such that at least the names of two Top Contenders in the said election, is yet to be published as the Commission in its wisdom has adopted the wait-and-see attitude in order not to run into a cul de sac. Starting from Jigawa, a High Court sitting in Birnin Kudu, some 1000 kilometers from Anambra State, had given a controversial judgment in the matter of the leadership of the All Progressive Grand Alliance (APGA) and made far-reaching orders against parties that were not before it in breach of one of the cardinal pillars of Natural Justice: audi alterem partem.

It would take the intervention of the Court of Appeal sitting in Kano, for that judgment to be upturned for good measure but not without Justice Nwosu Iheme who sits in the Awka division of the Court, excoriating Justice Ubale of the Birnin Kudu Court while determining another appeal where that controversial judgment had reverberated. In Imo and Anambra States, the political gladiators in the imminent Anambra polls have been having a free-for-all in the Courts procuring one Ex-parte order after the other and making the arena of justice an extension of their political playground.

In one case, a particular candidate and the faction of his political party paraded three separate Court orders from different Courts purportedly recognizing their faction of the party. Each of these orders, like in the PDP case, was rendered by Courts of Coordinate Jurisdiction on the same subject matter in the most bizarre case of abuse of the judicial process.

The eponymous concept of Ex-parte Orders is a by-product of our Common Law heritage as it forms an integral part of the English common law which was introduced into Nigeria by the English colonial masters. By its nature, it is used in situations of extreme urgency or emergency to forestall an imminent danger or act which would have become nugatory by a judicial intervention after the occurrence of the event. By custom, it is seldom granted by the Courts since the other party against whom reliefs are being sought, is usually not present in Court. The reason for this is to extenuate the tendency for its use by unscrupulous litigants to achieve inequitable objectives. In the case of Dingyadi v INEC (No. 2) (2010) 18 NWLR (Pt. 1224) 154 the Supreme Court of Nigeria gave judicial insight on the nature of Ex parte orders, and the need for judges to exercise the greatest circumspection when faced with such application thus:

“…There is no doubt that the jurisdiction of this Court to grant an injunction is exorbitant. However, when an injunction is sought as prayed for in the present proceedings from taking or prosecuting actions, it is a jurisdiction that must be exercised with great caution and after strong grounds have been shown to justify a restriction on an individual’s right of access to the Court for the determination of his rights. The Court must be satisfied that the party sought to be restrained has embarked upon a course of abuse of process of the Court and an abuse of freedom of access to the Court. An instance of such abuse is in the form of vexatious and oppressive actions. Another instance is when an action is instituted deliberately to circumvent the cause of justice and to bring the judicial process into ridicule and contempt. The Constitution can never be seen to be protecting the use of the judicial process to undermine respect for law and integrity of the Courts. Any action or course of conduct that is seen designed to introduce anarchy into the judicial system must be dealt with appropriately. In the instant case, the plaintiffs while the order of this Court still subsists rushed to the Court below to seek orders which are in direct conflict with the Court. The plaintiffs’ conduct in this case prima facie shows that they have manifested scant regard for the proper use of the judicial process and may have determined to abuse that process. The readiness of the Federal High Court to issue ex parte injunctions in such a case as this shows that Courts need to be more alert in safeguarding the judicial process from abuse. To issue far-reaching ex parte orders without regard to its consequences and without adequate inquiry does not show due to apprehension of a Court’s responsibilities in the awesome powers vested in it in making orders of injunctions. In my view, this Court will be remiss in its duties if it does not bring it home to parties that while all sorts of unethical behavior may be regarded as cleverness in the marketplace, such is not permissible in the legal system of our country”.

However, it would seem that both Judges and Lawyers alike, who are partners in this unholy and grossly unethical conduct, are motivated by other parochial objectives at the expense of the integrity of the institution of administration of justice. Today, ex parte orders have become an item of trade often ready-on-demand to the party with the deepest pocket. It has been used as a political weapon in some cases to embarrass occupants of some high offices out of office in flagrant abuse of the provisions of the Constitution which is supposed to be the grundnorm. Indeed, it may be recalled that a former Chief Justice of Nigeria was embarrassed out of office by one of such ‘over-night’ orders by some persons who felt his continued superintendence of the Judiciary posed a threat to their vaulting political ambitions.

It is an open secret that litigants who are involved in this deleterious practice often pay special fees for the procurement of these Orders outside the Lawyer’s professional fees, for facilitating the process. It is such an entrenched practice within the realm of legal practice and unfortunately often masterminded by the most Senior Lawyers in the system.

On the part of the Bench, the jurisprudential case often presented is that a Judge is limited to the facts presented before him, by a litigant in the exercise of his discretion one way or another. Judicial ethics dictates that he must not go outside the four corners of the case presented before him to sharpen his discretion, otherwise, he’d be seen as descending into the arena of conflict which a judge, in our adversarial system cannot be seen. But this is rather a simplistic argument. While it may be an availing alibi of sorts to escape liability, it nonetheless answers to crass irresponsibility and bankruptcy of the expected sharp sense of perception which any judge worth their onion should possess.

The considerations that go into the grant or otherwise of an Ex-parte Order are self-prohibiting, such that the diligent Judge who is committed to the higher ends of justice,  would know when one is necessary and when wool is merely pulled over his eyes by Counsel the nature of whose job, is to urge the semblance of the truth. For example, what was the emergency or urgency attending the application that led to the sacking of Prince Uche Secondus by the Port Harcourt Judge ab initio, that needed to be forestalled in the context of PDP leadership? As much as I have reviewed the circumstances from the facts available to me, I’ve not been able to find any.

And assuming there was one, from whence did the Kebbi and Calabar Courts derive the jurisdiction to set aside the Orders of Courts of the same jurisdiction as theirs? The normative principle of our judicature is that courts that sit on the same level, cannot exercise appellate or oversight jurisdiction over the other. Only a Higher Court has such powers in this country and at least throughout the Commonwealth. But we saw the desecration of this cherished principle that has preserved the institution of justice administration for over 5 centuries by the Calabar and Kebbi High Courts with aplomb.

If the judges claim not to know of other factors or developments that might have influenced their discretion in the cause before them per time, can the same defence enure to the Lawyers who are literally the drivers of this unwholesome outcome?  The in-built rule of our adjectival law is for a party against whom an ex parte order is made, to approach the Court making the order, to have it set aside upon good cause shown. It is not an avenue for such a party to retain his or her own Counsel, and go in search of a Court, Mungo-Park-style, to get a counter-Order in what is called forum shopping. That is what the Supreme Court bemoaned in the Dingyadi case. Yet, most of the Lawyers involved in the PDP and Anambra cases; including Senior Advocates, committed this Original Sin as it were.

The Nigerian Bar Association is therefore spot-on, in its diagnosis of the situation. By clearly pointing out that Senior Members of the Association are mostly responsible for this unabashed desecration of our Temples of Justice, the Association was striking at the heart of the matter. But it must go beyond the threat in a statement signed by its President— Olumide Akpata on 30^th  August 2021 to investigate the implicated cases and ensure that all the Counsel involved in precipitating this ugly outcome, face disciplinary actions as provided in the Legal Profession’s Rules of Ethics. That is the only way any deterrent value can emerge from that intervention.

On the other hand, the National Judicial Council (NJC) at its scheduled meeting would do well to equally investigate the judges who played a hand in this most embarrassing episode of justice administration and ensure that adequate sanctions are meted. The Council has over the years shown its capacity and willingness to discipline its own irrespective of the status of the judicial officer involved. It cannot afford to do less this time. And it is heartwarming, that the CJN as the Head of the National Judicial Council has already initiated that process with the summoning of the Heads of Courts of the States involved. That is the way to go.

Justice Administration is a very serious business. And the judiciary as an institution derives legitimacy from the implicit confidence reposed in it by the masses over whom it sits in judgment. When the impression, real or perceived, is created that high net-worth individuals can approach the Courts to procure judgments and orders at the expense of lesser members of the Republic, then the foundations of the justice system would have been eviscerated. This is the ugly danger posed by this menace. And the earlier it is nipped in the bud, the better for our Democracy and claims to civilization.

Raymond Nkannebe, Legal Practitioner, writes from Lagos. He tweets @Raynkah