By Afe Babalola
On the 17th of September 2018,, the Chief Judge of the Federal High Court, announced that he had issued a directive to Judges of that Court barring them from granting ex parte orders in political cases. Reporting the development, the Vanguard stated as follows:
“Chief Judge of the High Court, Justice Abdul Abdu-Karafati, who gave the directives during a special session the Court held to mark the commencement of its 2018/2019 Legal Year, said the decisions were aimed “to forestall any hiccups and the blame of the court by the political gladiators”. He said a circular had already been issued to Judges, to the effect “that interim orders ex parte shall not be granted in any political cases brought before the court”. According to the CJ, “I believe that controversies especially in political cases can be reduced when the court takes a decision after hearing all the parties in the case. “It is also extremely important that all political cases that may affect any of the parties which are still pending in any of our courts be concluded without further waste of time to afford all candidates the opportunity to pursue their political ambitions. “Hon Judges before whom such cases are still pending must endeavour to conclude them before the end of October, 2018. “I urge your Lordships to be wary in handling all cases and especially cases concerning political parties and the upcoming general elections. We should again use this court and the constitution to regulate our society for the good of our children and mankind.”
Interestingly, the announcement came a few days after a Judge of the High Court of the FCT had granted ex-parte orders relating to the qualifications of one of the candidates in the then upcoming gubernatorial elections in Osun State. The directive itself attracted much debate within and outside the legal establishment. While some were of the view that the directive was in order, others felt that it would unnecessary stifle the discretion which all Judges have in deciding when it is appropriate to grant such orders. Ex parter orders, for the benefit of those unfamiliar with them, are orders made by courts upon the application of a party to a litigation and without hearing from the other side. They are designed to deal with urgent matters which cannot await service of the processes on court on the other side where an incalculable damage is likely to be done to the party seeking the order or the subject of the litigation. Therefore as has been decided numerous times by the courts in Nigeria, such orders should only be granted where there is a real urgency. Regrettably ex parte orders have over the years been abused by Judges and Lawyers alike. The depth of the abuse was captured as far back as 1985 when the then Chief Justice of Nigeria, Hon Justice Mohammed Bello, admonished Practitioners and Judges at The All Nigerian Judges Conference held in Abuja in 1985 in the following words:
“The decisions on some of our courts on ex-parte injunction seem to put individual interest over and above the collective national interest in Nigeria. Public functionaries have been restrained without been given a hearing from performing their constitutional and statutory duties at the instance of an exuberant individual. I had the occasion to point out early this year that it was only in Nigeria that court of law would restrain a university by order on an ex-parte injunction from holding a convocation to award degrees to over a thousands students, who had passed their examinations. A court of law denied its deserving students their degrees course two students who had failed the examinations had applied to the courts for a declaration that they too were entitled to be awarded degrees.
The National Electric Power Authority was restrained by an ex parte injunction from commissioning the power house to supply electricity to a town because there was a dispute between two contractors as to whom the authority should paid the cost of minor works done in the construction of the power house.
A court of law denied electricity to the town simply because of the dispute between the two contractors. Indeed, there is urgent need among some of us, the judges should appreciate that ex parte injunction which was devised as vehicle for the carriage of instant justice in proper cases should not be converted into a bulldozer for the demolition of substantial justice, we should all realize that justice should be done to public functionaries and public institutions.”
Decades after this admonition, little appears to have changed. Recently, the Legal Practitioners Privileges Committee reviewed its initial decision to confer the rank on an applicant. The said applicant, despite the pendency of an appeal filed by him against an order refusing him the grant of an ex-parte injuction, had proceeded to file another action between the dame parties and sought and obtained an ex-parte order identical to that which was already the subject of the appeal. On the political front, the History of our Country is replete with instances where the Judicial arm of government has been accused, on account of the grant of ex-parte orders, of having played an inglorious part in activities which have delayed, if not outrightly scuttled the country’s aspirations to the enthronement of full democratic practices.
Impartial consideration of political disputes
The most notorious of these instances, without doubt, are the events surrounding the cancellation of the June 12 1993 Presidential elections. Since that ignominious event, the Judiciary has tried to restrict itself to the impartial consideration of political disputes. Thus the interest of the Judiciary through directives such as that of the Chief Judge of the Federal High Court to ensure that Politicians, do not unduly drag Judicial officers into the murky waters of politics is not unfounded. While it may be debated whether much has been achieved in this regard, what cannot be disputed is the resolve to place the judiciary and decisions of courts, well above political machinations and considerations.
Indeed this resolve was again underscored by the Chief Justice of Nigeria, Hon. Justice Walter Onnognen when at the ceremony of the Federal High Court to mark the start of the new legal year, he stated that:
“My Lords, as the election year draws closer, your courts will be flooded with applications bordering on pre-and post-election matters requiring adjudication.
“No doubt, election litigation is an inevitable part of the electoral process.
“While INEC has the responsibility to conduct and manage elections, the judiciary on its part is charged with the responsibility of resolving disputes arising from the process.
“We must, therefore, ensure that matters brought before our courts are determined on their merits, devoid of any external interference, to ensure the sustenance of the independence of the judiciary.”
Abuse of Ex-parte orders
However despite the widespread abuse of Ex-parte orders, I am of the view that they should be retained and that judges should be permitted to grant them in exceptional cases. Happily, the Chief Judge of the Federal High Court subsequently reviewed his earlier directive with the effect that Judges of the Federal High Court can now grant the order in exceptional cases. Numerous instances abound in which the intervention of the Court must be sought and obtained to ensure that the subject matter of the case is not lost. Therefore what is required is continued sensitisation of Judges regarding the yardsticks, well established through a long line of cases, upon which ex-parte orders can be granted. As stated earlier, the most important of these is the requirement that they must only be granted in cases of real urgency. Furthermore, Lawyers should also be sanctioned where they run foul of these principles or where they demonstrate a clear intention to abuse the procedure. In my book Injunctions and Enforcement of Court Orders I stated at page 11 as follows:
“Notwithstanding the much reviled abuse of the order of ex parte injunction by some judges and legal practitioners, the remedy of ex parte injunction remain part of civil procedure law in Nigeria… It is strongly suggested that every ex parte application be treated on its own merit.”
I remain of the same conviction and I join the Chief Justice of Nigeria and the Chief Judge of the Federal High Court in calling on Judges and Lawyers alike to continue to uphold, as they have largely done through the decades, the highest tradition and ethics of the profession.