On Black Market Injunctions
The Verdict By Olusegun Adeniyi, Email: olusegun.adeniyi@thisdaylive.com
FLASHBACK, SEPTEMBER 2002:
I have not confirmed this report but we know that in Nigeria today anything is possible. The story goes that a lavish society wedding had just taken place and after concluding the legal and social rites, the couple retired to their house. At bed time, the wife withdrew from under her pillow a court injunction perpetually restraining the husband from performing ‘his duty’. What made the story believable for me is that the said injunction was reportedly obtained from an Abuja Court!
That the judiciary is becoming a source of concern especially as we move to the crucial elections is no longer in doubt. The situation is so bad that politicians now find it far cheaper to use the court to scuttle their opponent’s campaign than to procure the services of thugs for such enterprise. Spurious injunctions now surface at events that Nigerians are no longer certain that the naming ceremony of their child, the graduation of their ward or the holding of their company’s AGM would not be disrupted as Judges device ‘home-grown’ solution to the biting economic situation.
A court injunction that should be openly sought and received has become a secret weapon of mischief. The latest of such was the court injunction that necessitated the cancellation of the All Nigeria Peoples Party (ANPP) Convention of 27th July, 2002. The injunction was served on the party by the National Legal Adviser of the Independent National Electoral Commission (INEC), which had the responsibility of supervising the convention on the day in question.
The Chief Justice of Nigeria (CJN), Justice Mohammed Uwais recently decried the incessant indiscreet granting of ex-parte applications for interim or interlocutory injunctions. He cited examples of Judges who grant injunction to stop a State House of Assembly from passing bills as well as those who grant injunction on matters already settled by the Supreme Court. According to Justice Uwais “…the only inference one can draw from such behaviour is that the judicial officers so involved cannot feign ignorance but are acting or acted deliberately in bad faith for improper motives…I have heard it said that some legal practitioners act as agents for litigants in giving bribe to Judges…”
I don’t think one can add more to what the highly respected CJN has said. But it is sad that injunctions have now become to some Judges what ‘handouts’ are to hungry university lecturers…
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The foregoing, excerpted from my column 18 years ago titled, “Can You Get Me a Court Injunction?”, is a sad reminder that nothing seems to have changed in the judicial sector in our country. Today, a political event in Benin can be stopped by a midnight ex-parte order obtained from a Judge in Port Harcourt! And from Kano could come another counter injunction from a court of the same jurisdiction.
Apparently disturbed by the development, the Chief Judge of the Federal High Court (FHC), Justice John Tsoho last week warned Justices of the FHC to avoid being used as tools for “political maneuvering”. In a circular made public, Justice Tsoho wrote: “It is of common knowledge that elections will be held in some states in Nigeria in the nearest future. The normal party conventions and primaries with attendant political maneuvering have already commenced amongst various political parties, which very often culminate in the institution of cases in the courts. In this regard, Your Lordships are strongly advised not to grant an ex-parte injunctive order in any political matter brought before Your Lordships. Furthermore, Your Lordships are equally advised not to entertain matters of which the course of action has arisen from outside your Judicial Divisions.”
Also last Friday, the Independent National Electoral Commission (INEC) expressed similar concern about the manner courts were being manipulated to circumscribe the electoral process. A statement by INEC National Commissioner in charge of Voter Education and Public Information, Mr. Festus Okoye, pleaded with the Nigerian Bar Association (NBA) “to impress on senior members of the Bar to put the country’s interest and the judiciary above every other interest and not allow personal considerations to outweigh their commitment to the profession, the rule of law and due process.” Of particular concerns to the commission is the growing number of conflicting orders on similar grounds and from courts of coordinate jurisdiction on issues pertaining to the administration of political parties and conduct of their primaries.
We understand the nature of the challenge. When politicians cannot agree among themselves, they often seek the intervention of the judiciary to define and determine their legal rights. This intervention, which is legitimate, sometimes comes in the form of injunctions restraining the other party from taking certain steps or compelling such actions. So, an injunction is either prohibitory or mandatory. But the rapidity and recklessness with which this powerful judicial tool is being used in Nigeria is unknown to the legal system where the concept originated from.
This ‘equitable remedy’ is meant to be granted by a Judge to prevent a threatened breach that could pervert the course of justice. However, for the remedy to be available, the applicant is also expected to climb the hurdles of ‘coming with clean hands’. This, unfortunately, is not the case in Nigeria as crooked politicians, their lawyers and collaborators use injunctions to ambush justice. The problem is often compounded when the affected party or their proxy rather than appeal decide to approach a different court of coordinate jurisdiction to obtain a counter injunction. The result is uncertainty, confusion and abuse of the judicial process. With that, what was designed to serve the end of justice has been turned into an instrument for doing exactly the opposite.
Perhaps because of its possible abuse, there has always been a contention about ex-parte order which is said to mean ‘without notice to the other party’ or in Latin, ‘one side to a dispute’. A famous quote by Sir John Fortescue, a former Chief Justice of England, says it all: “The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam (and Eve) before (they) were called upon to make (their) defence.” But there are strong arguments as to the necessity of court injunctions which were actually designed to enthrone justice.
In a 1912 case in the United Kingdom, CJ Griffith explained the rationale for an interim injunction thus: “There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard on defence. But instances occur where justice could not be done unless the subject matter of the suit were preserved and, if that is in danger of destruction, by one party, or if irremediable or serious damage be imminent, the other may come to the court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action.”
In their paper in Seattle University Law Review titled ‘Remedies for Wrongfully-Issued Preliminary Injunctions: The Case for Disgorgement of Profits’, Ofer Grosskopf and Barak Medinat amplified that further by looking at the American legal system. They argued that “preliminary injunction is a pre-trial order issued with an explicit awareness of the possibility that it will be proved wrong” hence “this awareness is reflected not only in the courts’ reluctance to issue such orders, but also in the demand for the moving party to post a bond that would cover the harms inflicted on any party who is found to have been wrong-fully enjoined or restrained.”
Injunctions are extraordinary, both in timing and effectiveness because they empower courts to preserve the subject matter which is commonly referred to as the ‘Res’. Granting injunction is therefore sometimes necessary and expedient so that the court would not be put in a position of helplessness. Such orders also help to ensure that the person seeking redress is not put in a position of securing ‘meaningless’ justice. But in other climes, injunctions are usually granted sparingly, for compelling reasons and in exceptional circumstances. Sadly, that is not the case in Nigeria where court injunctions have become a political weapon and are now two for ten kobo!
Many people may forget but the ‘June 12 crisis’ was contrived with the active participation of the judiciary and at the centre of it were spurious court injunctions. I once recounted on this page my experience on 14th June 1993, two days after that historic election. Following the suspension of the announcement of results by the National Electoral Commission (NEC) in deference to a court injunction obtained by the Chief Arthur Nzeribe-led Association for Better Nigeria (ABN) from the late Justice Bassey Ikpeme’s court, three Social Democratic Party (SDP) Governors, (one from South-West, another from South-South and the third from the North-East) made calls to their respective states. I witnessed the drama at the then NICON Noga Hilton (now Transcorp Hilton) hotel. Even when I did not know the people with whom these governors were speaking, the instruction was for them to go and meet certain named Judges to obtain ex-parte orders that would compel the electoral commission to release the result of the presidential election that everybody knew had been won by the candidate of their party, the late Bashorun M.K.O. Abiola.
In simple term, what the governors decided was that since the Prof. Humphrey Nwosu-led NEC was relying on an Abuja court order to stop the release of the election result, they too could procure such order from their states to get the Commission to release the result. And within hours, the said judicial orders came from two states and were well publicized for the attention of NEC which predictably ignored them. As it would happen, that was what General Ibrahim Babangida capitalised on to annul the election to “save the judiciary from anarchy”. As he claimed, he “could not continue to watch the various high courts carry on their long drawn out processes and contradictory decisions while the nation slides into chaos.”
For me, the real issue in the fiasco of that period is not that the governors wanted and got the court injunctions they requested but rather that each was specific as to which judge whoever they were sending should go to. Nothing seems to have changed. Any discerning observer of the fight to finish in the ruling All Progressives Congress (APC) would also have noticed that each of the principal characters got his injunction from the state governed by a friend. So, at the end, we had orders from courts of same jurisdiction cancelling out one another. Meanwhile, because of the crisis of confidence created by the way many Judges got entangled in the politics of June 12, one of the first things the late General Sani Abacha did on assumption of office was to establish the late Justice Kayode Eso panel. Inaugurated on 29th December 1993, the panel submitted its report on 5th July 1994, indicting no fewer than 47 judges. But the report was never implemented. And with that, Judges continue to peddle and trade injunctions.
A former CJN, Justice Aloysius Katsina-Alu, once decried this situation, saying “Rule 2(a) (ii) of the Code of Conduct for Judicial Officers provides that a judicial officer must avoid the abuse of the power of issuing interim injunctions ex-parte” at a conference of Judges. He added, for emphasis: “Permit me to also caution you all to avoid indiscriminate granting of ex-parte applications for interim injunctions, especially without regard to the likely inconveniences that may be caused as a result of such orders. You are all advised to stay on the side of caution. Any judicial officer proved to have contravened this rule will summarily be disciplined by the NJC. A word is enough for the wise.”
Ordinarily, the legal procedure for redressing any injustice (perceived or real) is an appeal to the same court to review its decision or an appeal to the higher hierarchy of court. But our courts have become a pawn in the political chess game. Because of that, many of our politicians now do ‘Forum Shopping’ by seeking injunctions from ‘sympathetic Judges’. Yet, what proliferation of injunctions indicates is that justice is now for sale and that bodes ill for the rule of law in Nigeria.
It is indeed interesting there is hardly any former CJN that has not spoken against the abuse of ex-parte order. But indiscriminate granting of injunctions isn’t going to disappear until the judiciary takes the bold step of owing the problem and confronting it head on. There is therefore an urgent need to review the rules of our courts with regard to political cases so as to block the loopholes that judges exploit. Those who will not follow the rules should be sanctioned. But I must also add that it is not as simple as many think. We cannot classify all interim injunctions as bad. Each case will have to be considered on its merit.
The National Judicial Council (NJC), clothed with power to discipline erring Judges, is obviously not doing enough. Perhaps because the council does not want to be seen to be stifling judicial discretion. There is a strong point for that. To do justice without fear or favour, judges must not be intimidated. But it should also be clear to the leadership of the judiciary that something is wrong with the way and manner our courts, including the Court of Appeal and the Supreme Court, now handle political cases. For instance, while the high courts are culpable in abuse of injunctions, the various divisions of the Court of Appeal can also not agree among themselves when deciding similar political cases. The situation is worse in the Federal High Court where Judges are practically sitting on appeal over orders granted by colleagues in other divisions. That’s why Justice Tsoho’s admonition is very timely.
In my book, ‘Against The Run of Play: How an Incumbent President Was defeated in Nigeria’, President Goodluck Jonathan recounted a meeting he had with the leadership of both the National Assembly and the judiciary on how to find an institutional framework to combat corruption in the country. He told me: “…I also invited Chief Judges from one state in each of the six geopolitical zones. I specifically requested for Lagos and Anambra to represent their zones. My choosing Anambra was because that is one state where every political aspirant goes into election with at least two court orders in his pocket. You cannot fight corruption without dealing with such issues.”
As I have argued on several occasions on this page, the role of the court as the resolver of disputes and defender of the constitution, requires that Judges abide by their oath at all times, and in all circumstances. And for that reason, a judiciary debilitated by, or prone to, mercantile political manipulation is a danger to any society. The NJC must intervene to rid the judiciary of transactional Judges who have commercialised court injunctions and are causing instability in the system.
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