The apparent conflict in the orders of the Federal High Court, Abuja Division, presided over by Hon. Justice Okon Abang, and that of the Port Harcourt Division of the same Court, presided over by Hon. Justice Ibrahim Watila, in the Peoples Democratic Party leadership cases, respectively being adjudicated by the two judges, is, to say the least, embarrassing. The conflict, has, once again, brought the Nigerian Judiciary and the administration of justice in Nigeria into disrepute. Nigerians are bewildered and are asking the inevitable question: What is wrong with this Nigerian Judiciary?
In the quest for power and positions, either in public offices or in their political parties, politicians, who are nothing but power-mongers, will do anything. In this quest, they do not regard the judiciary as too important an institution, and the law court is too sacred a temple of justice to be desecrated. With lawyers who are willing and ready to sacrifice their professional integrity and ethics, politicians are always prepared to commit the worst form of abuse of judicial process. They do forum-shopping, seeking orders that will bolster their positions and checkmate their opponents. Acting alone, but usually with the assistance of hired senior lawyers, they actively corrupt judicial officers, especially those who are handling election petitions and appeals and conducting high profile anti-corruption cases. Some judicial officers have been given the boot and driven out of the judiciary with ignominy for not being able to resist the corrupt and corrupting practices of politicians.
Thus, in treating this exasperating issue of conflicting orders of the two Federal High Courts, we are not sad because of the antics of politicians. We are, because of the indiscretion of our courts and their seeming errand-running for politicians, thereby dragging the name of the judiciary into the muddy gutter of Nigerian politics. The courts appear to be surrendering the integrity of the judiciary to the whims, caprices, mischief and wiles of politicians.
The conflict in the orders of the said two Divisions of the Federal High Court easily could have been avoided if any of the three following steps had been taken by the Court or the judicial authorities concerned.
First, the suit before Hon. Justice Okon Abang of the Abuja Division of the Federal High Court was the first of the two cases to be filed. Upon the latter suit being filed in the Port Harcourt Division of the Court, Hon. Justice Ibrahim Watila ought not to have buried his head in the case that was filed before him, like an ostrich, pretending to be oblivious of the pendency of the earlier filed suit before Hon. Justice Abang of the Federal High Court. He ought to have taken judicial notice of that suit, and suo motu, declined to entertain and transferred it to the Chief Judge of the Federal High Court, Hon. Justice Ibrahim Auta, for onward reassignment to Hon. Justice Abang and consolidation of same with the suit, already pending before Justice Abang. Our judges rightly cannot feign ignorance of happenings in their judicial neighbourhood, particularly the pendency of notorious and highly celebrated cases in the Divisions of the same Court [Federal High Court or State High Court] on the Bench of which they serve.
Secondly, when Hon. Justice Ibrahim Watila failed to take that step, the Chief Judge of the Federal High Court, Hon. Justice Auta, who wields statutory administrative powers over the Judges and Divisions of the Federal High Court, ought to have called for, or withdrawn the case file of the Port Harcourt suit from Hon. Justice Ibrahim Watila, and re-assigned same to Hon. Justice Okon Abang. For good reason, the Chief Judge could also have withdrawn the two suits from the two Judges and reassigned same to another “neutral” Judge of the Federal High Court. By refusing or declining to exercise this power when it became absolutely necessary, but choosing to wait for the two suits, essentially on the same cause of action, to be litigated and adjudicated simultaneously, the Chief Judge has failed woefully in the discharge of his duty, and has contributed to bringing the name of the Judiciary into disrepute.
Order 49 of the Federal High Court [Civil Procedure] Rules, 2009, made by the erstwhile Chief Judge of the Federal High Court, Justice Abdullahi Mustapha, pursuant to the provision of Section 254 of the Constitution, 1999, provides in sub-rules 1, 2 and 3 as follows:
- A cause or matter may, before evidence is taken, and at the request of either party to the suit, be transferred by a judge before whom the cause or matter is pending to another court of the same Division;
- A cause or matter may at any stage of the proceedings be reassigned to another Judge of the same Division or of any other Division by the Chief Judge whether or not the cause or matter is being heard before him [that is, the Chief Judge, himself];
- If for any reason, a judge hearing a cause or matter and who has taken any step in the proceedings considers it necessary, either at his own opinion, or upon application of any party to the proceedings to have the cause or matter transferred to another Judicial Division, the Judge shall refer the cause or matter to the Chief Judge, who may direct that the matter be transferred to the appropriate judicial Division in accordance with these Rules.
By the above provisions of the Federal High Court [Civil Procedure] Rules, 2009, it can, thus, be seen that there are judicial and administrative powers to effect intra-division or inter-division transfer of the Port Harcourt action and reassignment of same. The reason the Chief Judge failed to exercise this power, when this matter was yet to come to a head, so as to save the judiciary from disgrace, is best known to him. The National Judicial Council should be dismayed enough to ask Hon. Justice Ibrahim Auta why he failed to act in this regard..
Thirdly, the National Judicial Council [NJC] could have waded into this matter and arrested the drift of the Federal High Court into the cesspit of ignominy, when the Chief Judge of the Federal High Court failed to act. For those who may be wondering how the NJC could have waded into this matter, we are of the humble view that the NJC creatively and pro-actively ought to rethink its complaint procedure and petition laying protocols in matters such as this one, where we have the aberration of two courts of concurrent or co-ordinate jurisdictions; courts of the same Federal High Court making conflicting orders and engaging in inter-divisional muscle-flexing. In matters such as this, we are of the considered view that if the NJC sticks to its prevailing practice of waiting for a petition to be first submitted by affected parties to trigger its disciplinary procedure against judges, the standing, esteem and integrity of the Judiciary might have been irreparably damaged by the time of arrival of such petition. We believe that the time, therefore, has come for the NJC, exercising its powers under paragraph 21 (b) & ( i) of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, to apprehend and arrest potentially damaging intrigues in the Judiciary without first waiting for petitions that will trigger its disciplinary jurisdiction. The NJC could issue directives and advisory to the Heads of Courts in circumstances such as this. The NJC needs not wait for the lady of justice to dance naked in the market, and belatedly start figuring out how the lady could have been clothed. That will be medicine after death. That will be treating an academic matter, that the courts say they do not waste their precious judicial time treating, not being a live matter. Under the said paragraph 21 (b) & ( i) of Part 1 of the Third Schedule, the NJC has the power to recommend to the president the removal from office of Federal High Court Judges, amongst others, and to exercise disciplinary control over them; and deal with all other matters relating to broad issues of policy and administration. Broadly, liberally and purposively interpreted, this power, in our view, should enable and entitle the NJC to wade into a grave misuse or abuse of judicial power, which is likely to impact very negatively on the image of the Judiciary, before that misuse or abuse of power becomes consummated and ripens into a clear-cut disciplinary conduct, warranting the wielding of the sanctioning hammer of the NJC.
It is clear in our mind that if any of these steps stated above had been taken, Nigerian lawyers and judges would have been saved from facing this latest embarrassment.
For those who are not interested in the larger implication of these conflicting orders for our judicial system, but who are focused mainly on what the law says on a situation of conflicting orders like the instant ones; and who may wondering what the parties to these two court orders and executive authorities in the federation ought to do in the circumstances, we will not leave you without stating what the law says. In doing so, however, we hold the firm view that the question of what the law says is not as important as the question of where the Judiciary is headed.
The law is that the Court of Appeal in Nigeria is one court, made up of divisions. If there are two conflicting judgments of the Court of Appeal on a point of law, the later in time is taken to be the current decision of the Court of Appeal. See Ojugbele v. Lamidi [ 1999] 10 NWLR [ Pt. 621], 167 at 171, para. E.
- Ogunye is a public interest attorney and legal commentator.
The two Federal High Courts are courts of co-ordinate or concurrent jurisdictions. Thus, they both have the same powers, and the decision of one cannot bind the other. The parties, and the executive authorities [the police and INEC] may, therefore, be tempted to choose either of the two orders to obey, or choose to obey neither. Our view is that they are not permitted to do so. While they may exercise their respective constitutional right of appeal by filing notices of appeal; and in addition file applications for stay of execution of the orders that have been made and the judgment has been granted, by the two courts, the latest decision in this sordid judicial circus and justice administration debacle is the interlocutory decision of Hon. Justice Okon Abang, which, indeed, noted and took into consideration the earlier Judgment of Ibrahim Watila, J. As stated by Eso J.S.C, of blessed memory, in Osafile v. Odi [No 1] [ 1990], 3 NWLR [Pt. 137], 130 at 171, a decision of the Supreme Court, the Court of Appeal in Nigeria is made up of “only one hand, and that hand knows and is expected to know and must be held to know what it does whether it has five fingers, or more or less”. It must, therefore, be presumed that Hon. Justice Okon Abang knew what he was doing when he “overruled” the Judgment of Hon. Justice Ibrahim Watila.
Therefore, until Hon. Justice Ibrahim Watila “countermands” or “counter-orders” Hon. Justice Okon Abang in this game of judicial tit-for-tat, Hon. Justice Abang, for now, has the last say, and his decision is the current and latest order of the Federal High Court, binding on all authorities an persons, by virtue of the provision of Section 287 of the Constitution, 1999, until his decision is set aside, by him or by a higher, appellate court. What a Judiciary! What a Country!!
- Ogunye is a public interest attorney and legal commentator.