Exparte Orders: Why erring judges, lawyers must be sanctioned – Jurists

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Leading jurists have canvassed for serious sanctions against erring judges and lawyers involved in the issuance of conflicting court orders to save the justice system from odium.

 

 

Speaking at a virtual conference by the Nigerian Bar Association (NBA) Section on Public Interest and Development Law (NBA-SPIDEL) themed “Contradictory ex-parte orders of courts over political cases: Implications and consequences,” 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, moreso 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 included former Supreme Court jurist, Justice 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, and leading election petition lawyers, 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.



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His words: “The court should grant an exparte (interim) injunction if irreparable or serious mischief would result if it is refused. If satisfied that the delay caused by proceeding in the ordinary way might entail irreparable or serious mischief, the court may make a temporary order exparte upon such terms as it thinks fit. It must be an exceptional case which is serious and unjust.”

He warns that ex-parte orders “should last for a short time (5-7 days) and the judge would do well to state it,” adding that “unnecessary adjournments should not be granted to beneficiaries of exparte (interim orders)” and that “An exparte injunction will generally be granted only after writ of summons (originating process) has been issued. The only exception is if the circumstances of the case are very urgent.”

The respected jurist observed that “Judges and lawyers know the guidelines very well,” adding that “There is always a resurgence of exparte orders during the period to a run up to an election” because the stakes are “too high.”

He cited the applications that came on the heels of the party primaries in Anambra State and stated that “Exparte injunctions were indiscriminately granted. What occurs in the courts by the filing of all manner of actions is an abuse of court process.”

Citing his judgment in Peoples Democratic Party v Sherrif 2017 SC, Justice Rhodes-Vivour advised heads of court 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, adding that “This was the period when judges were heard to say that the fear of the NJC is the beginning of wisdom.”

His words: “Legal practitioners who make it a practice to file suits outside jurisdiction or to obtain exparte orders knowing fully 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.”

Akeredolu stated that while a litigant has a right to bring up any matter, it the duty of the lawyer to advise his client on the merit or otherwise of the matter, adding that “where lawyers have failed, we must take responsibility for it. Every politician will want to take advantage. There is use for exparte order; but there is also an abuse.

“The court also has a duty, 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, it is for the judge to strike it out. If the lawyer persists by taking the matter to another court, that is abuse of process and he can be disciplined.”

He queried the purported extra-territorial jurisdiction of the Federal High Court, adding that “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 obtains with the Court of Appeal.”

In his contribution, Daudu deprecated frivolous exparte applications and orders, saying they “not only pollute the justice and judicial system but are a danger to our 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, to wit the National Judicial Council for the judges and the Legal Practitioners Disciplinary Committee for legal practitioners without exception.”

Fagbemi stated that conflicting exparte orders are a “product of a fundamental defect, of how we get people into the profession or appoint people into the Bench. Atimes the judges are not corrupt but it is, with all 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 argued that “Looking at the electoral law, the only situation where you can approach the court for an exparte order is when you want to serve by substituted means. The exhortation in the law reports and the statutes are so clear that some areas are no-go areas especially in election matters – whether election or pre-election. The issue of locus is also there. Subject matter and territorial jurisdiction issues have also been flogged. Unless in very extreme cases, there is no reason for the matters to travel offshore, that is, from the base the matter has arisen. The Chief Judge should also know the expertise of his judges as a guide in assigning cases.”

Fagbemi warned that there is need to “distinguish between display of scholarship and display of rascality,” adding that “that some cases are so serious that the NJC should not wait for anybody to complain. Given that the 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.”

Noting that undertaking should be given via bank drafts or bank guarantees, Fagbemi urged that in dire situations, the NBA Monitoring Committee “should spring into action while not witch-hunting any lawyer,” adding that “We need the will politically and otherwise to confront this menace.”

On her part, Offiah stated that exparte applications and orders “do not intrinsically infringe people’s constitutional right to fair hearing. The problem is not in the exparte order but in the manner it is being deployed to achieve purposes contrary to the rule of law.”

She deprecated exparte orders which are declaratory of the rights of parties, adding that 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 purpose of exparte 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 statues or rules of court or decided authorities on the purpose or use to which exparte orders can be put. We are not just doing the right thing.”

In his goodwill message, Akpata commended the NBA-SPIDEL leadership for putting together the virtual conference, adding that the NBA “is extremely, extremely worried by this 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 “will definitely be made to face the music. We shall implement with alacrity.

“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 because it is my belief that if the judges and if our members know that there are sanctions and consequences for their actions, they would sit up and do the right thing.”


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