The judiciary as the third estate of the realm is a sacred institution laden with the moral responsibility of strengthening and preserving the nation’s democratic experience.
As a matter of fact, the principle of checks and balance places a sensitive role on the judiciary to call to order the two other arms of government: the legislature and the executive, in the event that any or both strayed off the track.
Unfortunately, the recent problem of conflicting court injunctions by courts of coordinate jurisdictions over political matters, however, casts shadows on the integrity of the judiciary vis-a-vis its the role in strengthening the nation’s hard-earned democratic practice.
While it is on record that there have always been disagreements in the selection of candidates at primary elections of political parties in most states in the country, it is disturbing to imagine that the judiciary could allow itself to be used or manipulated at the whims and caprices of politicians to undermine the nation’s democracy which some nationalists labored expensively to secure.
Whereas this is not the first time such controversial actions of the courts have threatened the nation’s democracy, this time around, it has generated real worries about the future of the country’s civil rule.
Of interest here is the recent role played by the courts in the selection of candidates for the forthcoming November 6 governorship election in Anambra State and the ongoing leadership crisis in the Peoples Democratic Party, PDP, which has become an interesting major point of national discourse all over the Nigerian media.
While the Victor Oye-led faction of All Progressives Grand Alliance, APGA had elected Professor Charles Chukwuma Soludo as its governorship candidate, the euphoria was short-lived as a high court in Jigawa State declared Hon. Chuma Umeoji as governorship candidate of Jude Okeke-led faction.
The Independent National Electoral Commission, INEC, in its wisdom, choosed to publish the name of Umeoji instead of Soludo as the candidate of APGA.
A few days later, the Oye faction obtained its own judgement from an Awka High Court affirming Soludo as the authentic candidate of the party.
The Court of Appeal (Kano Division), has however set aside the judgment of the High Court of Jigawa State which declared Umeoji as APGA candidate and Okeke as the leader of the party by pronouncing Victor Oye as the authentic national chairman of APGA and Chukwuma Soludo as the validly elected governorship candidate.
In recognition of this judgement, the elector umpire INEC has since replaced Umeoji’s name with that of Soludo while the parties await the final ruling on the matter from the Supreme court.
Interestingly, a similar scenario played out in the Peoples Democratic Party, PDP as while the faction that produced Mr. Valentine Ozigbo as its standard-bearer was still holding victory party, the faction loyal to Chris Uba announced Ugochukwu Uba as the PDP candidate. The two factions eventually ended up in court and obtained conflicting judgements.
While the Federal High Court in Awka declared Ozigbo the valid candidate of the PDP, a State High Court also in Awka declared Uba as the valid candidate. The PDP later accused the State High Court Judge, Obiora Nwabunike, of seizing the case file so as to frustrate the notices of appeal filed by the party and her candidate against the judgement.
The leadership crisis rocking the national secretariat of PDP witnessed its own share of conflicting court rulings which analysts have now code-named forum shopping.
On Monday 23rd of September 2021, a Rivers State high court in Degema gave an order barring Prince Uche Secondus from parading himself as a member or National Chairman of PDP.
Monday’s court order appeared to be the height of a crisis that has been brewing within the party.
But by Thursday, Secondus resumed in his office parading a counter order from a Birnin kebbi court reinstating him as the national Chairman of the party.
Prince Uche Secondus on Friday resumed office following the order from another court of coordinate jurisdiction in Kebbi on Thursday that reinstated him as the National Chairman of the Peoples Democratic Party (PDP).
On Friday, another high court in Calabar, Cross River State, restrained Secondus from presiding over the NEC meeting of the party.
In the face of these conflicting judgements, analysts on both the mainstream media and social media berated the decay in the judiciary, often occasioned by indiscriminate granting of court orders and injunctions by some pliable judges who have by their dishonourable conduct brought the Bench to disrepute.
The analyst complained bitterly on the huge embarrassment caused the Nigerian judiciary by the actions of those who issued the conflicting orders upon ex-parte applications by some politicians which is becoming a real threat to Nigeria’s democracy.
This jolted the Chief Justice of Nigeria, CJN, to summoned six Chief Judges of State High Court linked to the menace, an action experts also criticised as being antithetical to the ethics of the legal practice.
Some of the States Chief Justices invited before the NJC include that of Rivers, Anambra, Jigawa, Kebbi, Imo and Cross River.
They were to explain what warranted issuance of conflicting orders by courts of coordinate jurisdiction.
While the High Courts of Imo, Jigawa and Anambra need to explain their roles in the Anambra governorship election, the High Courts of Rivers, Kebbi and Cross River on the other hand are involved in the case of the PDP Chairman, Prince Uche Secondus.
Similarly, the Nigerian Bar Association (NBA), which shared same position as the CJN, has also condemned the now rife development, saying it would be willing to sanction any member found wanting.
But in the view of a senior lawyer, Barr. Akugbe J. Osayande, it would be unfair to place the entire judiciary on trial whenever there is a judicial infraction of this nature.
Osayande posited that it is not the entire judiciary that should be carpeted or painted with the same brush whenever there is a noticeable judicial infraction.
He admitted that though it is bad enough to say judges have brought themselves below the standard expected of them but that doesn’t mean the whole judiciary is being used to truncate democracy.
The learned fellow maintained that “When some judges at the lower runk of the ladder gave some judgements which may be right or wrong, we should not just criticize the entire judiciary.
“When you talk of the judiciary, you are looking at the whole architecture of dispute resolution as done by the court. So, you do not carpet the entire judiciary because there are self-regulating safeguards in the judiciary to deal with such actions by persons who would ordinarily be involved in multiplicity of actions.”
The legal practitioner absolved the judges of any blame insisting that the judge himself cannot be guilty of forum shopping, rather the lawyers and the political class should receive the blame.
According to him, “Forum shopping can only be committed by lawyers. It is the lawyers who select where they know will favour them to institute cases. That blame shouldn’t be put on the judges because judges don’t file cases, it is the lawyers that file cases.
“So that for me puts the blame first on the lawyers who filed that case including the politicians because assuming the politicians don’t know, the lawyers should know.”
On the contrary, a fellow experienced senior lawyer, Barr. Pat Ediale disagreed that lawyers should be held liable for issues of conflicting court injunctions.
On his part, Barr. Ediale reckoned that , “If you want to begin to blame lawyers, it will run against the training of the lawyers.”
Ediale hinted that the blame should rather be passed unto the Politicians from whom originated these frivolous cases.
“The lawyers don’t sit in their offices and advance or kill the case that is brought by their clients. He is not the court, he is not the judge. It is left for the lawyer to push forward the case given to him by the client. That is how the law develops. Then, when he gets to the court, the judge looking at the circumstance of the case will reprimand him.
“What if a client comes to you as a lawyer and opened up to you that he killed somebody come and represent me, would you tell the client, No, you killed somebody I can’t represent you. Would that be fair? Even a man who commits murder and doesn’t have money to hire a lawyer, the government would still get a lawyer for him to go and defend him. So why would you now blame the lawyer whose client has come saying let’s go and do this, would he say no it’s not possible?
Instead, the learned legal practitioner argued that the electoral umpire INEC should be blamed.
In absolving the also from the blame, Ediale stressed that, “The judge cannot be blame because he may never know, he only deals with evidence and materials presented before him. It Is INEC Nigerians should hold responsible because INEC is always joined in all these proceedings.”
“The court is open to everyone. To both those who have good cases and those who have frivolous ones. If INEC approach the judge after giving the exparte order and lay bare the facts of the matter that see, this matter is already a subject of litigation in another court, the judge can still set aside or reverse the exparte order.”
On his part, Ediale maintained that it is the duty of INEC to hint the judge of the presence of a similar suit in another court of coordinate jurisdictions, because INEC is always a party to all these proceedings.
“What stops INEC from alerting the judge that this issue has already come up before another judge that doesn’t even have jurisdiction. The judge would ask what am I supposed to do, you will say stay action pending the time that that issue is determined in the other court.”
However, In substantiating his position further, Osayande further argued that the root of the problem lies in the blanket nature of the jurisdiction of the federal high court at inception, which gave politicians the impression that they can file their cases in any federal high court of Nigeria regardless of where the cause of action arose.
“Now this is the root of the problem, this is where the whole thing started from, initially at the beginning of federal high court in Nigeria, there is a blanket provision under the federal high court act that states that the jurisdiction of federal high court in Nigeria is one, that the federal high court in Nigeria has jurisdictions everywhere. That was how it all started that the federal high court is federal high court of Nigeria.
“This was because at the inception, the divisions of the federal high court in Nigeria were very view, as we only had in Lagos, Abuja and maybe Port Harcourt. It is only recently that we started having more divisions all over the States of the federation. This is one area that people have exploited negatively. From that point, you could file a case anywhere in Nigeria.”
The intervention of the CJN on the other hand has also generated talking points as political observers expressed worry over the summoning of six chief judges by the CJN.
They claimed such action of the CJN undermined the independence and freedom judges enjoy at the temple of justice in dispensing justice without fair of retribution by any higher authority.
The argument is premised on the fact that the Chief Justice was pushed to take an unconventional measure but because he needed to take such drastic action, the public applauded him because of the public outcry the matter generated.
They argued further that on the other hand, if a judge had given a judgment against president Muhammadu Buhari and the CJN summoned the chief judge of the State, would the public be happy?
However, the explanation given to that was that the CJN was acting in his capacity as the chairman of National Judicial Council, NJC, and not as the Chief Justice of Nigeria.
According to Barr. Osayande, the CJN was acting in his regulatory capacity as the chairman of NJC who on establishing a prima facie case of multiplicity of decisions which some of the judges should have noticed, swung into action to safe the face of the judiciary.
He argued that nobody can question the judgment of a judge as each judge distinctly took oath to defend the constitution, to do his job independently.
“Each judge is not accountable to anybody but to the law and unto God. That is the independence of the judiciary.
“By the time you narrow the principle of separation of power which states that each arm of government shall be separate and independent down to the judiciary, it then means that each judge in the temple of justice is also given absolute independence not to be controlled by the chief judge.
” The chief judge of a State has administrative supervision of the workings of the judiciary but he does not have controlling jurisdictions over the judges. The chief judge of a State or the judge of a State is not answerable to the Chief judge on any matter that is on his ducket. That is how the system works.
“The CJN cannot call a judge on a particular suit before him to dictate how to resolve it. The system does not allow that. That is why there are systemic layers of review of the judgment of the judge by way of appeals.
“You can’t even question a judge if he makes mistake in his judgement because he is also human, it is only where there is obvious case of malfeasance on the part of the judge that is backed with evidence that you can hold him for that.”
In corroborating this view, Barr. Ediale noted that the action of the CJN was only administrative, and nothing more, and perhaps a fact-finding measure to know exactly what transpired.
He admitted that no judge takes instructions on how to judge his case as He only took oath of office to preserve the constitution and he is only answerable to God and his conscience.
What then could be the way forward to safe Nigeria’s democracy from collapse?
Barr. Osayande, in his view, admitted that what is responsible for conflicting injunctions is multiplicity of actions and there are judicial safeguards against multiplicity of actions but because election cases are very juicy everyone wants to get a share of the cake.
He noted that is what prompted politicians to engage in sending a team of lawyers to a particular court and send another team to another court all on the same matter. But the law itself is against multiplicity of actions.
He said this is what is called multiplicity of actions otherwise known as abuse of court process.
According to him, apart from several case laws available to back that, the federal high court law states that if a lawyer is filing a fresh suit at the federal high court, he should depose to an affidavit that there had not been any similar suit pending anywhere other than the one he is filing.
“So, if these lawyers know that there are similar matter being filed somewhere else, are they not supposed to be blamed? So, the system is self-preserving and self-regulating,” he said.
As a way of defending the judiciary, Osayande said, “The same judiciary that people are vilifying today have over the years modified this issue of territorial jurisdiction. Recent decisions of superior courts in Nigeria have tried to situate or localize to the effect that even when you are filing your case in the federal high court, try as much as possible to stay within the territorial space where your cause of action has arisen.”
On the Way forward, he said, ” We should be able to hold people accountable and liable to their actions that is those who are found to have abuse court process should be made to pay heavily.
“The provision in the court rule that says each party should depose to an affidavit should be strongly adhere to and implemented.
On his part, Barr. Ediale mooted that, “In the age we live now, deploying Information Technology, IT, would go a long way in saving the judiciary from such embarrassment.
He said, “In all the States, if the judgments coming from their courts are put on the website, then at the press of a button, the judge can find out has this case comes up before any judge before? Otherwise, how will a judge sitting in Jigawa know that this issue has been litigated in another court.”
In the final analysis, the menace of indiscriminate issuance of injunctions and orders, if not checked could derail the country’s hard-earned democracy as the 2023 general election began to gather momentum.
It is, therefore, imperative to warn that INEC should be circumspect and recognise only those duly elected by their political parties as their candidates for the election, as this is the time to demonstrate its independence.
On its part, the judiciary should be very careful in handling pre-election matters. There is no reason for courts of coordinate jurisdiction to be giving conflicting judgements on the same matter. They should bear in mind that the judiciary is the last hope of the aggrieved and should not abuse it.
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