Judicial Banditry In Nigeria By Dr Kenneth Okonkwo
A bandit is a thief that is a member of a gang. Whoever extorts money from anyone by whatever pretence, influence, manipulation or compulsion is a thief and as such a bandit, whether from the bench or from the bush. Will it surprise you that in the days of philosopher Judges like Chukwudifu Oputa, the Supreme Court held that an errant judge is more dangerous than a thief because a thief can be reined in by the armed forces of the state but an errant judge can cause a major disaster that can turn the country upside down before anything can be done. This danger stems from the position of the law that any judgment of the court, no matter how erroneous it may be, must be obeyed, until set aside by a superior court of competent jurisdiction. Within the time of obedience of any weird judgment of a trial court and decision of an appellate court, the damage may have been done. Justice Mohammed Bello of the Supreme Court referred to those judicial bandits as judges without justice while the nearest synonym from the Supreme Court in description of judicial banditry is judicial rascality. Merriam Webster describes a rascal as a mean, unprincipled or dishonest person.
The reason that it’s apt to use the term banditry to describe these crops of unprincipled Judges is because they act in a team, gang or band. They find willing allies among some senior lawyers in Nigeria. Most times, it is these lawyers that forum shop to bring cases before their preferred Judges and courts that will give them favourable judgments, no matter how perverse in law. Justice Kayode Eso, JSC, as he then was, submitted that behind every allegation of bribery and corruption against a judge, there is a senior lawyer behind it. Of course, this should be obvious because the clients hardly have direct access to the Judges, so every act of dishonesty is always perpetrated through the medium of these unprincipled lawyers. They can also be referred to as the vampires in the temple of justice, not worthy to be addressed as ministers in the temple of justice, an honour reserved for only honest lawyers in Nigeria. There’s no doubt that some unprincipled politicians are also part of this gang with which they utilise to witch hunt and bring down their perceived political enemies.
The act of judicial banditry has been demonstrated eloquently by the indiscriminate dishing out of ex-parte orders which mostly are politically motivated not judicially expedient. Ex-parte order is an order made by a Judge in response to a motion ex-parte brought before the Judge. Motion ex-parte is an application for an order of court brought to court without notice to the other party to the suit. In other words, strictly speaking, a Judge delivers the order without hearing from the other party. Even if the other party against whom the order is sought is present in court, he is precluded from responding to the motion or filing a counter affidavit even where the facts as presented by the applicant are false. Owing to this seemingly lack of fair hearing on the other party, before the order is handed down by a Judge, very strict rules are observed.
Ex-parte order is a legitimate rule of court, meant to be a shield, intended to protect the subject matter of the case, pending the hearing from the other party. It is not meant to be a sword to attack the other party who has not been heard. Therefore, in law, ex-parte application is permitted in two main circumstances. First, where, from the nature of the application, the interest of the adverse party will not be affected negatively and second, where there are sufficient grounds to convince the court that time is of essence of the application of which any delay in granting the order sought would entail irreparable damage or serious mischief to the party moving. A practical example will be like a politician, who may be an opponent to a sitting Governor and whose property the Governor wants to unlawfully demolish to get back at the politician. If the politician gets wind of the intended illegal demolition of his property by the Governor, he may rush to court with an ex-parte application to demand an ex-parte order, also called interim order or injunction, to restrain the Governor from demolishing his house, pending the determination of the case on whether the Governor is doing the right thing or not. After hearing the application, the Court may refuse the application if it is not convinced that sufficient grounds have been placed before it to warrant granting it or it may grant the application if convinced that allowing the demolition may cause irreparable damage to the politician before hearing from the office of the Governor. The ex-parte order has a very limited life span of about 14 days, in which the other party would have been heard and elapses after that.
In Nigeria, this beautiful remedy in equity, designed to defend the defenceless, against superior powers, is now dishonestly being used to destroy the defenceless by superior, unprincipled, mean and dishonest persons, using judicial bandits on the bench to accomplish this nefarious act. The debacle of the National Chairman of PDP, Uche Secondus, and the conflict with his godfathers on his handling of the affairs of the party says it all. It has been a while now that there were rumours that Uche Secondus had fallen out of favour with Governor Wike of Rivers State. Nobody needed any prophet or familiar spirit to confirm this because at the inception of Wike’s regime, Secondus was permanently present in all the functions embarked on by Wike. Gradually, we started seeing less and less of him till his presence became extinct in all the functions of Rivers State government. With the exodus of PDP Governors from PDP to APC and allegations of corruption hurled left, right and centre against Secondus, it was believed that the opponents of Secondus led by the Governor of Rivers State decided that it was time for Secondus to quit. It led to the demand for his resignation or removal if he refuses to resign. A compromise agreement was reached in which the convention was brought forward to October, instead of the December due date. Secondus was said to have started strategising to ensure that he was not disgraced out of office before the expiration of his tenure. As the politics was raging, from the blues, a Rivers State High Court issued an ex-parte order restraining Secondus from functioning as the Chairman of PDP. To counter this ex-parte order, another court of coordinate jurisdiction in Kebbi issued a counter ex-parte order mandating Secondus to continue unhindered with the performance of his job as PDP National Chairman. Before this order could settle, another court in Cross Rivers State of coordinate jurisdiction issued yet a counter ex-parte order restraining Secondus from parading himself as Chairman.
This comedy of errors offend everything about due process of law and orchestrated one of the greatest abuses of judicial processes in Nigeria. The first abuse of judicial process is that of territorial jurisdiction. The determination of territorial jurisdiction is predicated mostly on where the defendant resides or where the cause of action arose. The facts of Secondus case reveal that his ward in Rivers State suspended/expelled him from his party, PDP, and a Rivers State Court issued an ex-parte order, based on his expulsion by his ward, to restrain him from parading himself as the National Chairman. The cause of action arose in Rivers and Secondus resides in Abuja/Rivers State. So what is the ex-parte order from Kebbi and Cross Rivers High Courts doing in this matter? The simple answer is judicial banditry. The position of the law is that once a court delivers a judgment, it becomes functus officio, and cannot entertain the same matter. This position binds every court of coordinate jurisdiction. The only option of any aggrieved party is to appeal the judgment in a higher court, in this case, the Court of Appeal. The High Courts of Kebbi and Cross Rivers ran foul of the rules of court by technically sitting on appeal against or for the judgment/ruling of the Rivers State High Court.
The most pathetic abuse of the ex-parte order was by the High Court of Rivers State which used an ex-parte order as a sword to attack Secondus and deny him of performing his legitimate duties as PDP National Chairman, without granting him fair hearing. At this stage of judicial process, the veracity or otherwise of his purported suspension/expulsion has not been decided by any court on merits. The applicants did not show how the ex-parte order sought by them is meant to shield them from irreparable loss from any action of Secondus, before hearing from him, rather the ex-parte order was sought to subtly remove Secondus from office, thereby causing irreparable damage on his career as PDP Chairman, without fair hearing. Moreover, what was so urgent in the removal of Secondus that the Judge could not wait to hear from him, in a motion on notice, before issuing an order to remove him. This is judicial banditry in its highest order and could only have been delivered by a Judge without justice. It is a shame to the judiciary, the bar and bench and a bad judicial precedent that is capable of interfering with the internal democracy and smooth operation of political parties. It is perverse in law.
There’s no doubt that the Chief Justice of Nigeria, who is also the Chairman of the National Judicial Council, the body responsible for the disciplining of Judges, was embarrassed by this cacophony of abuse of ex-parte orders by courts of coordinate jurisdiction going by his immediate summon of the Chief Justices of the three states involved in this judicial shenanigan. His instructions are clear, Judges must not deploy ex-parte orders to settle political scores and errant Judges should be reined in. We cannot agree less. We, however, note that from 1985, succeeding Chief Justices, from Mohammed Uwais JSC, have been hammering on the abuse of ex-parte orders and the need to punish errant Judges, yet the malaise has persisted. This can only continue because the punishment is not deterrent enough. We recommend strong punishment that will send strong signals to the whole world that Nigeria judiciary has zero tolerance for corruption and abuse of due process. From current events in the political parties, it is obvious that in a democracy, the Judiciary is not just the last hope of the common man, it is also the last hope of the uncommon man, indeed of everyone, so we must rise up in unison and fight for its purification and redemption.