LEGAL IDEAS FORUM

OPINION BY O. G CHUKKOL- NIGERIA JUDICIARY:MATTERS ARISING

Anchor: with the widespread of coronavirus scare, would you say that the order given by the CJN on shutting down the courts is a good initiative given the fact that many crimes and cases are piled up for hearing?

OG Chukkol: Permit me to first of all say that the Chief Justice of Nigeria has no power under the law to shut down the courts. Under the Nigerian constitution, each court has its head. The Chief Justice of Nigeria heads the Supreme Court, the President of the Court of Appeal and Chief Judges of High Courts head their respective Courts, the President of the National Industrial Court also heads it court.
Therefore, it’s the head of each court that can validly shut down its court. That is why despite the directive of the CJN, heads of courts have been issuing their respective directives. I think the directive is good, though illegal.
We all know how fast the virus is spreading. This directive is just to implement a recommendation made by the Nigerian Centre For Disease Control (NCDC) and World Health Organization (WHO)
Thirdly, the courts are not totally shut down. From all the directives that I read, courts are to hear exparte applications, bail applications etc. So the directive is good. Our health first and Judges cannot hear those cases if they are dead. On a final note, it’s a good initiative
Anchor: Would you say objectively that the Judiciary as the third arm of government is living up to its responsibilities giving to recent events in the country.
OG Chukkol: Yes sir. The Judiciary is doing well in Nigeria. It is the last hope of the common man. We saw how Sambo Dasuki and Sowore got their freedom. A cases abound.
However, there is a problem and citizens are at the receiving. I will highlight some of these challenges and back them up with decided cases
CONFLICTING DECISIONS
Most positions in law today are not certain. And the reason is simple, the decisions of courts are not unanimous. They are always contradicting themselves. 
In Agbaje vs Fashola (2008) 6 NWLR Pt 1082 at Page 127-128 paras d-f)  Lagos Governorship Election Petition Tribunal dismissed the use of a particular colour of ink for accreditation of voters other than the one prescribed in the Manual for 
conduct of election as inconsequential. But in FAYEMI VS. Oni Fayemi vs Oni, (2010) 17 NWLR (PT.1222) 326 CA. the Court of Appeal  nullified the Ekiti State
Governorship elections in 63 out of the 177 Wards in Ekiti State just because accreditation was done with a RED INK instead of blue stipulated by the Manual for the conduct of election. 
In AMOSUN VS. DANIEL, Ogun State Governorship Election Petition, the Court of Appeal held that one Tunde Yadeke was not an expert in the examination and analysis of electoral materials. But, in the AREGBESOLA VS. OYINLOLA. Osun State Governorship Election Petition, the same Court of Appeal ruled that Tunde Yadeke was an expert. These are two cases  with similar facts but on which different judgments were delivered. The irony is that some members featured in the two panels of the Court in these two cases.
In FRN v. ALKALI & ANOR (2018) LPELR-45237(CA), the Court of Appeal, Sokoto Division held that a person standing trial can be a beneficiary of pardon whereas in FRN v. ACHIDA & ANOR (2018) LPELR-46065(CA), a judgment delivered by the same Sokoto Division of the Court of Appeal held that only a person who has been convicted can be pardoned
Today one cannot approach a particular court for enforcement of fundamental rights with certainty that he is approaching the right court. Why? Because of the conflicting decisions on the point. 
In NWEKE v. NWEKE (2018) LPELR-44824(CA) it was held that Federal High Court lacked jurisdiction because the right which the applicant sought to enforce arose from a MATRIMONIAL DISPUTE and as such only State High Court can enforce rights arising from such subject matter. However, in KOLO v. NPF & ORS (2018) LPELR-43635(CA), the police at the instigation of her husband invited the applicant and she feared her right to dignity of human person might be infringed upon. When she approached Federal High Court for the enforcement of her right, it was held that Federal High Court had jurisdiction notwithstanding the fact that the subject matter is purely on matrimonial dispute.
Let us give another example. In HI-QUALITY BAKERY LTD & ANOR v. LONGE & ORS (2018) LPELR-45173(CA) the applicant was arrested and detained at the instigation of her employer, when she approached Federal High Court for the enforcement of her right to personal liberty, the court granted her prayers but on appeal it was held that the Court ought to have declined jurisdiction on the basis that though the police officers were federal government agencies, the employer who instigated them to arrest the applicant was not. That the applicant should have approached State High Court. This is clearly contrary to the decision in the case of BENSON AGBULE VS. WARRI REFINERY AND PETROCHEMICAL CO. LTD. (2013) 6 NWLR (PT.1350) 318 where it was held that only a Federal High Court is vested with the requisite jurisdiction to entertain cases of fundamental rights where a federal government agency is a party.
The decisions of courts above show that in cases of fundamental rights enforcement, a particular court (be it a State or Federal High Court) may not be approached today with substantial certainty that it is the appropriate court.
TECHNICALITIES
I have said it times without number that technicalities have already found its root in our administration of justice system and our citizens are in trouble. They will suffer. Imagine the Supreme Court of Nigeria voiding the decision of an Election Petition Tribunal simply because one of the members of the tribunal who delivered the judgment was absent during one of the proceedings. Mind you, the Supreme Court is legally correct because there a plethora of judicial authorities on the point including NYESOM v. PETERSIDE & ORS (2016) LPELR-40036(SC), Sokoto State Govt v. Kamdex (Nig) Ltd (2007) 7 NWLR (Pt.1034) 492-493 and the recent one delivered in respect of Osun State governorship election.
But with respect I do not see anything wrong in a judge being absent in just one sitting. No damage will in actual sense be done. 
Another example where our courts have taken technicalities too far to the detriment of citizens they are meant to protect is the case of NBC PLC v. AJOGWU (2018) LPELR-44829(CA). In this case, AJOGWU​ bought Sprite drink from the manufacturer, drank same directly from the bottle and fell sick. The bottle had some shiny substance in it. Ajogwu’s brother had consumed a full bottle of the Sprite and fell ill and died, while Ajogwu who did not finish his drink was taken to the hospital. He was thereafter referred to Enugu State University of Science and Technology Teaching Hospital where he was treated. He was treated there for about four years. As a result of his sickness, he lost four years in medical School. He also suffered partial permanent incapacity.
Ajogwu brought an action in negligence against the NIGERIAN BOTTLING COMPANY PLC, who are manufacturers of the Sprite drink and also distributors of the said drink. After the trial in the Court, Ajogwu was given judgment in the sum of FIFTY MILLION (50, 000, 000) NAIRA as General Damages. This is quite commendable. But is not over yet. 
The company appealed against the decision to the Court of Appeal on the ground that the Enugu State High court had no jurisdiction to hear the suit when the writ of summons by which the suit was commenced was not signed by the plaintiff or his legal practitioner. Enugu Division of the Court of Appeal in its judgment delivered on the 8th of June this year agreed with the company and held that since Ajogwu or his lawyer did not sign the originating process they filed before the Enugu State High Court, the decision was a nullity and was therefore set aside. In other words, the Fifty Million given by the Enugu State High Court in favour of Ajogwu was reversed simply because he or his lawyer did not sign the case he filed before the Enugu State High Court. This means the mistake of his lawyer counted against him.
With all due respect issues of signing court process has now been stretched to a limit that does not accord with common sense. I am fully aware that any process filed before the court without signature is a worthless piece of paper, but I suggest the courts should henceforth treat it as an irregularity that can be regularised by filing a motion to that effect. When would we prove the world wrong that the law is an ass?
The one I find even more bizarre is the case of CUTRA INTL (NIG) LTD v. ADELE (2018) LPELR-44631(CA) delivered on Tuesday the 6th of February, 2018 by the Court of Appeal in Porthacourt Judicial Division. In this case the appellant appealed against the decision of the Rivers State High Court delivered on the 2rd day of February, 2012. In his Notice of Appeal the appellant mistakenly mentioned that the judgement appealed against was delivered on the 22nd of February, 2012 instead of 23rd of February, 2012. Because of the differences in the date, the Court of Appeal held that the said notice of appeal is targeted at a non-existent ruling/judgment for which reason the appeal was struck out.
With profound respect this is to say the least a height of technicality and a blind application of the dry letters of the law without regard to its spirit. This is a manifest miscarriage of justice.
INDEPENDENCE OF THE JUDICIARY.
Our judiciary is not independent so they must dance to the tune of the executive. It appeared funny to the citizenry when Atiku approached Election Petition Tribunal challenging the Victory of President Buhari. The reason is simple! Judiciary has become a toothless bull dog, people do not have confidence in the Judiciary any more. In fact, the judiciary is now at the mercy of the executive.
What do you make of a situation where a citizen of this country is detained for years even when court had ordered for his release? What do you expect when it is the executive that prepares budget for the judiciary? What do you expect when a judge is looking for employment opportunity from a governor for his brother or relative? What do you expect when security agencies can boldly raid the house of a judge in the middle of the night and try him in the media?
By Sections 81(2); 84(1), (2), (3), (4) and (7);  162(9); 153(1)(i) of the constitution and paragraph 21 (e) & (h) of the third schedule thereof, the Judiciary is supposed to prepare its budget itself. See the case of Olisa Agbakoba Vs Attorney General of the Federation and Others with SUIT No. FHC/ABJ/CS/63/2013 delivered by Justice A.R. Mohammed of the Federal High Court Abuja in May 26, 2014.
but in practice their budget is being prepared by the executive. With this you don’t expect judges to perform very well. 
All is not well and that has been the position since 1999. Our judiciary of 1960s to 1990s who dared even the military is not the judiciary today.
But I think if a change is effected in the manner of appointing judges in this country, the judiciary would be better than it is now. Integrity, passion, competence and courage matters a lot. We need people with such qualities in the judiciary.
To conclude on this point, I must reiterate the fact that I find it quite terrible that up until today the budget of the Judiciary is being prepared by the executive arm of government and then sent to the Senate to be passed into law.
The implication is that Judiciary cannot on its own prepare its budget. It is only the Executive and the Legislature that have the advantage of deciding for themselves.
Of course the Senate always review its own once the budget reaches its table. But the Judiciary has no such opportunity. It means the Executive can even decide to punish the Judiciary by cutting down the budget of the Judiciary.
For God sake for how long would we continue in this shame? I weep for the Judiciary. No one bites the finger that feeds it and Nigerians will continue to suffer injustice
Anchor: There is this popular parlance that Law has no emotion, don’t you think emotions should be aroused sometimes, like in the pronouncement of judgement, like the purge of corporal punishment, in the Nigerian legal system. This actually brought controversy during the recent judgement of Maryam Sanda.
OG Chukkol: Well, that has been the impression and I will not fault the citizens for holding that opinion. The decision of the Supreme Court on Imo governorship election has elicited diverse opinions including that of Zamfara and Bayelsa.
Since the decision of the Supreme Court is final by reason of section 235 of the constitution, then any other statement is at best an academic exercise.
That notwithstanding, I disagree with the Justices of the Supreme Court. It is unfortunate that instead of the Supreme Court Justices to respond or examine the merit of the matter when approached by Kanu Agabi, SAN on behalf of Emeka for review, they hid under the Finality of the judgement of the Supreme in refusing the application filed by Emeka. This matter is simple:
(1) Hope Uzodinma did not have the geographical spread as required by section 179(2)(b) of the constitution. We have 27 states in Imo. The 2/3 majority 27 is 18 states. Hope Uzodinma got 2/3 of just two states, instead of 18 yet he was declared a winner. Why? Does it mean that the Supreme Court is superior to the constitution even when it was established by the same constitution? Supreme Court refused to explain.
Mind you even Emeka Ihedioha did not have that required geographical spread. So Supreme Court ought to have ordered for rerun, not declaring Hope Uzodinma as governor.
(2) the votes of all the 388 Polling units allegedly omitted by INEC where allocated to APC (meaning, no any other party scored even a single vote from those Polling units. How possible is that?) In fact, the scores from the 388 Polling units which were given to APC were even more than the total number of registered voters. Where did they get the extra from? The Supreme Court refused to explain
3.  In Atiku Abubakar’s election petition against Buhari, the Court held that only those who input figures in the results sheet of various Polling units can be called as witnesses to tender the said results. Consequently, the results sheets of about 700 Polling units tendered by Atiku were rejected. Mind you, the decision was made ust a month before the decision of the Court on Imo.
However, in the Imo case, the result of the entire 388 polling units were tendered by a police officer, not even an INEC official, in a bag and the same Supreme Court accepted them as evidence. Is this not contradiction and confusion? 
Instead of them to justify their decisions when approached by Emeka Ihedioha, they dodged and were busy emphasizing the Finality of the Supreme Court decision.
Hon. Justice Centus rightly observed that “This decision of the Supreme Court will continue to haunt our electoral jurisprudence for a long time to come.” In EZE v. STATE(2017) LPELR-42006(CA) it was held as follows:
“A trial Court must be careful to sift facts from sentiment in adjudication. He must stay off the miasma of sentiment and use the clean lens of the law to scrutinize the facts before him. Sentiments are poisonous to rational thinking. They becloud reasoning.” Per AWOTOYE, J.C.A. (P. 35, Paras. D-E)
I agree. We don’t need emotions in our administration of justice system. Has Maryam no sympathy too? Justice is not a one way traffic, or two way traffic. Is a three way traffic.
Anchor: what is your take on the rising cases of disobedience to court orders and directives?
OG Chukkol Esq: It is very unfortunate. The constitution is very clear
287. (1) The decisions of the Supreme court shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the supreme Court.
(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the court of Appeal.
(3) The decisions of the Federal High Court, the National Industrial Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other courts, respectively.
It shows the level of respect our leaders have for the constitution they swore in oath to protect. in the case of Nigerian Army v Mowarin (1992) 5 NWLR Pt 235 P. 345 CA. the Nigerian army detained Mowarin. On application by OLISA AGBAKOBA, ESQ (now SAN), the court ordered for her release but the Army refused to release her. Rather, they filed an appeal against the order for her release and also filed a motion for stay of execution. The Court of Appeal held to the effect that a flagrant flouting of an order of the court by the executive (now DSS) is an invitation to anarchy.
“The same contemnors have come with very unclean hands supplicating before this Court for a grant of favor that would, as it were, legalise their contempt. I would like the applicants to a sinner who prays to God to assist him in the commission of his sins. Just as God will not listen to such supplication, this Court would not grant such a prayer.”
It is submitted that disobedience to court orders is an anathema and desecration of the sanctity of rule of law. It is an aberration in a democratic setting. Perhaps there is no better way of putting it than calling in aid the words of Wali J. S. C. In the case of EZEKIEL HART V. EZEKIEL HART (1990) NWLR (Pt.126) 276 wherein the eminent law lord observed:
“To allow Court orders to be disobeyed would be to tread the road toward anarchy. If orders of the Court can be treated with disrespect, the whole administration of justice is brought into scorn. if the remedies that the courts grant to correct. wrongs can be ignored, then there will be nothing left for each person but to take the law into his own hands. Loss of respect for the Courts will quickly result into the destruction of our society.’
An erudite judicial icon, Nnaemeka J. S. C. in his concurring judgment in the same Hart’s case above said and I quote:
“I would like to state that obedience to orders of court is fundamental to the good order, peace and stability of the Nigerian nation. The ugly alternative is a painful recrudescence of triumph of brute force or anarchy – a resort to our old system of settlement by means of bows and arrows, matchets and guns or, now, even more sophisticated weapons of war. Disobedience to an order of court should, therefore, be seen as an offence directed not against the personality of the Judge who made the order, but as a calculated act of subversion of peace, law, and order in the Nigerian society. Obedience to every order of court is therefore a duty which every citizen who believes in peace and stability of the Nigerian State owes to the nation.”
The conclusion about this is that, it is bad and cannot be justified in any circumstance
About the speaker
Oliver Gift Chukkol is a law student of Ahmadu Bello University, an avid legal author and researcher.
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