Politicians are it again. In their quest to triumph – by hook or crook – at party primaries, they have resorted to a familiar gimmick: forum shopping. In the last two months, they have, aided by their lawyers, left courts in their states and obtained conflicting restraining orders from courts in other states or the Federal Capital Territory (FCT). ADEBISI ONANUGA examines the problem and solutions.

 

The last two months have seen lawyers embarking on forum shopping for restraining orders in judicial divisions other than the ones the event took place, thereby undermining the integrity of judges and bringing the courts to ridicule.

The 2023  elections may be over a year away,  but politicians are already scheming at the party level ahead of the poll.

As usual, they are,  through their lawyers, involving the courts in their trickery.

Imo and conflicting orders

A Federal Capital Territory (FCT) High Court on Friday, July 30 restrained the Imo State chapter of the All Progressives Congress (APC) from holding the party’s congress scheduled for Saturday, July 31, in the state.

Justice Valentine Oriji, who gave the ruling, ordered that all action regarding APC congresses in the state should be stayed, pending the hearing of the application slated for August 10.

The judge warned the APC not to proceed with the congresse, pending hearing of a suit brought before the court by an applicant, Okey Anyikwa.

Anyikwa, who is the APC chairman of Ideato South Local Government Area, had approached the court for an injunction restraining the APC from going ahead with the congress because of an Appeal Court judgment that upheld the tenure of the state executives of the party elected in 2018.

On Monday, August 2, just two days after Justice Oriji’s ruling, Justice Babatunde Quadri of the Federal High Court, Abuja, restrained the Independent National Electoral Commission (INEC), the APC and its National Chairman from conducting any congress in Imo State until August 21.

The court also ordered the plaintiffs, Osita Izunaso, Ben Uwajimogu, Matthew Omegara, Hilary Ekeh and Patrick Uzoukwu to maintain status quo until August 21.

The order restraining the defendants followed an application by Ahmed Raji, counsel to the plaintiffs.

Raji had asked the court to order that all parties be restrained from conducting any primaries in the state, ward or local government until the next adjourned date of the suit.

He said if such order was not made and the defendants went ahead to conduct the primaries before the next adjourned date, the suit would become an academic exercise.

Raji told the court that although the defendants were duly served with an order of court stopping them from conducting congresses on July 20, they went ahead to conduct the congresses.

Raji, on behalf of the plaintiffs, on July 23, filed a motion ex-parte praying the court to set aside the purported congresses of the party in the state.

He asked the court for an order of injunction restraining APC and its chairman from recognising and swearing in those purportedly elected at the congresses.

Justice Quadri, in a short ruling, ordered all parties in the suit to maintain status quo and not conduct any primaries.

“All parties are restrained from conducting any primaries in the state, ward or local government until August 21,” he said.

Gale of conflicting orders hits Anambra State

The quest for restraining orders from Abuja spread to Anambra State last month as a chieftain of the All Progressives Grand Alliance (APGA), Okoye Nwabuogo, on July 6, also approached the Federal High Court (FHC), Abuja seeking an order to set aside the election and nomination of former Central Bank of Nigeria (CBN) Governor Prof. Charles Soludo, as the candidate of the party.

The suit marked FHC/ABJ/CS/596/2021, was filed on July 6, 2021 by Nwabuogo’s counsel, Okoro Nkemakolam.

The APGA chieftain prayed the court to restrain Soludo from parading himself as the flag bearer of the party for the election scheduled to hold November 6, 2021.

He also prayed the court for an order of injunction against INEC from accepting or recognising Soludo as the candidate of APGA for Anambra State.

But an Anambra High Court sitting in Awka ignored the Abuja order and ordered INEC to restore Soludo as APGA’s candidate.

Justice Charles C. Okaa, who made the order on Monday, July 19, also held that Soludo and his running mate were the authentic choices of the party.

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To add to the confusion, Justice Musa Ubale of the Jigawa State High Court sitting in Birnin Kudu on June 30, 2021, gave another order mandating INEC to accept any person brought by one Jude Okeke as the All Progressives Grand Alliance (APGA) candidate in the November 6, Anambra State governorship election.

Without APGA being joined in the suit and without the national chairman, Chief Victor Oye, being made aware of the suit, Justice Ubale ruled that Okeke had taken over from Edozie Njoku as the APGA chairman.

The suit filed in Jigawa, according to observers, was to oust Soludo from the governorship race in Anambra State.

Appeal Court to the rescue

On August 4, the Court of Appeal, Awka Division, dismissed an application challenging the judgment of an Awka High Court, which declared Soludo the rightful APGA candidate.

Justice Chioma Nwosu-Iheme made the ruling on a motion by Chike Onyemenam, counsel to Jude Okeke, who claimed to be the APGA National Chairman.

Okeke sought to stop the execution of the order made earlier on July 18, by Justice Charles C. Okaa of the Anambra State High Court.

The appellate court further recommended punishment for Justice Ubale of Birnin Kudu, and his counterpart in the Imo State judiciary, Justice B. C. Iheka.

It described as unprofessional conduct their act of dabbling into the Anambra State governorship election controversy and going ahead to give consequential judgments on it.

The Court of Appeal justice accused Anambra politicians of forum shopping for judgments to enable them to contest in the November governorship election.

She regretted that some judges and lawyers indulged such politicians and as a result bring the legal profession into public contempt.

Conflicting jurisdiction

Like in other jurisdictions, courts are established to adjudicate over matters that occurred within their jurisdiction as provided for under the law. However, observers, while blaming lawyers and judges for ignoring procedures, also noted that incidences of conflicting decisions and wrongful assumption of jurisdiction on cases were common with political matters. The assumption is fuelled by the unbridled activities of politicians who, for selfish reasons, go outside known jurisdictions to shop for orders and judgments in  courts over matters and events that took place in other places in total disregard to subsisting rules on courts’ jurisdiction.

Past efforts to curb judicial recklessness

Conflicting jurisdiction by courts has become common place in the judiciary, giving the institution a bad name. It is in an attempt to redirect and change the face of the judiciary that informed several directives being issued be heads of courts..

To curtail discretionary use of judicial power, former Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, in 2020, issued a directive to all heads of courts to dissuade the grant of ex-parte orders in political cases.

Justice Mohammed also directed heads of courts to impress it on their judges not to disqualify any candidate under any guise and that courts should not incapacitate any candidate.

Earlier on, a former Chief Judge of the Federal High Court, Justice Adamu Kafarati, directed judges to stop the use of ex-parte orders in political cases.

Justice Kafarati, who issued the directive at the opening of the 2018/2019 legal year, explained that his decision was motivated by the need to curb the hiccups blamed on the courts from the actions of political gladiators.

“I have during this vacation issued a circular that interim orders ex-parte shall not be granted in any political cases brought before the court. I believe that controversies can be reduced when the court takes a decision after hearing all the parties especially in political cases,” he said.

Aside these directives, a plethora of judgments has also been delivered to curtail litigants going outside jurisdictions to obtain court orders.

Lawyers’ reaction

Stakeholders in the justice sector expressed worry over the growing trend of forum shopping for restraining orders and judgments in Abuja by litigants. They advocated sanctions against judges and lawyers found to be involved in such acts. To them, the heads of courts and the National Judicial Council (NJC) should rise to the challenge of restoring the sanctity of the judiciary.

Those who spoke with were former President of the Nigerian Bar Association (NBA), Dr Olisa Agbakoba (SAN), Rotimi Jacobs (SAN), Kabir Akingbolu and activist Debo Adeleke.

Agbakoba – No will power to discipline lawyers, judges

Agbakoba noted that the Supreme Court had consistently ruled that parties and counsel who engaged in forum shopping outside the territorial jurisdiction of the subject matter of litigation do so in blatant violation of the rules relating to appropriate fora to begin litigation.

He regretted that in spite of a plethora of decided cases that this is wrong, the practice has continued. Agbakoba observed that the problem seemed to be caused by “the extremely inefficient legal and judicial framework and lack of will to enforce discipline in relation to counsel and Judges that flout the rules.”

Agbakoba added: “Should it not readily occur to a Judge sitting for instance in Onitsha, that there is something fundamentally wrong when a suit giving rise to disputes arising from  Dogon Dutse, suddenly appears on his docket on a Monday morning? The proper course open to that Judge is to strike out the case, brevi Manu, without further ado, and direct counsel to the proper forum.”

Jacobs – National Assembly to blame

Jacobs regretted the abandonment of the old judicial policies that insulated the court from political issues and questions. Jacobs noted that courts in the First Republic, up to the commencement of the 1999 Constitution, always declined jurisdiction to entertain any case that had to do with pre-election matters and who was to become the executive member of a political party. He said their reason,.then, was that it was not for the court to dictate to the political parties who to sponsor into political offices and that the courts lacked jurisdiction to intervene in the internal affairs of a political party.

He blamed the National Assembly which he said made the court to depart from its age-long policy of non-interference, by amending the Electoral Act in 2007 and 2010 conferring jurisdiction on the High Court to entertain pre-election matters and disputes.

“These powers have put the court in a murky water of politics and has greatly embarrassed the judiciary. We now have a system where parties can no longer determine their own candidates for elective offices until there is a judicial sanction.

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“This is quite unfortunate as we now have ‘courtocracy’ as opposed to democracy. The courts are now saddled with the responsibility to decide who become the candidates for the parties and the leadership of political parties”, he said.

Jacobs observed that it was common practice for aggrieved politicians, who were unsuccessful in the primaries conducted in their states, to rush to the Abuja High Court (either Federal or FCT) to obtain restraining orders against primaries conducted outside Abuja.

According to him, they do this hiding under the guise that, the INEC headquarters and the headquarters of political parties are in Abuja.

He said: “These politicians and their counsel knew that the proper high court in the state where the primaries were conducted would not readily grant the restraining order, hence, they engage in forum shopping and proceed to Abuja where the system is more ‘liberal’ and amendable to their wishes.

“The appellate courts have condemned these practices and abuse of process of court in many cases but politicians and their counsel will not desist from this unprofessional conduct and illegality.”

As to how to check the practice, Jacobs made three suggestons.

He said political parties’ internal democracy or intra-party democracy must be strengthened, to enable the parties to learn how to conduct their internal affairs without any need for the court to interfere.

Jacobs also recommended that a legal practitioners involved in such professional misconduct should be reported to the Legal Practitioner Disciplinary Committee for sanctioning. Once the Supreme Court has decided against such practice in one case, any counsel who repeatedly abuse the process of court should be sanctioned by the disciplinary committee.

On the other hand, he said the judicial officer who granted a restraining order without jurisdiction should likewise be reported to the National Judicial Counsel for necessary sanction.

Litigants ‘foisting’ jurisdiction on Abuja courts

For Akingbolu, the rush to Abuja is borne out of the fact that litigants foist jurisdiction on Abuja courts by hook or crook. He noted that they achieved this by joining a federal agency, especially, INEC, headquartered in Abuja.

“So, once this is done, they file in Abuja and obtain orders to be served on the party and members in their states,” he said.

According to him, the consequence of this is that the opponent or candidate against whom the order was obtained with his supporters, followers and well-wishers, especially those in the party hierarchy “will also start their own war.

“They will go to a court within their own locality with a view to obtaining a counter order that speaks a parallel language to the initial order of the Abuja order.”

He noted that though there was only one Federal High Court in Nigeria with one jurisdiction, “the truth is that a practice has evolved over the years whereby what  we call territorial jurisdiction had crystallised to the effect that every Federal High Court has an area or extent of coverage.

“With this, the courts are prohibited from entertaining matters that are outside its territory. Unfortunately, the judges sometimes shut their eyes against this ominous and deliberate attempt to mislead the court and undermine its integrity.”

To solve the problem, Akingbolu noted that judges owed a duty not to allow the court to be manipulated at will. “This is the only way the sanctity of the court can be maintained and guaranteed. Let the court start turning back litigants to the appropriate locality where their suits and grievances ought to be ventilated. That way, the indiscipline and corrupt tendencies of some politicians would be curbed.

He said: “The fear of punishment is what makes any law to be effective. Or put differently, effective enforcement of rules is the reason why people obey the law. Therefore, if sanctions are imposed against erring judges in very clear terms, judges will sit up and observe strict compliance with the rules of court and practice.”

He said a lawyer that deliberately filed his client’s case outside the territorial jurisdiction ought not to be spared and the best way to do this was by invoking the jurisdiction of the Legal Practitioners Disciplinary Committee to try such erring lawyer.

“With the prevalence of conflicting court judgment and orders, I think the time has come for judgment of courts at the high court level should be publicised so much so that they become known by at least a sizable number of practising lawyers and the judges too.

“This could be achieved through electronic circulation of judgments by the courts once it is delivered. This admonition had been given by Niki Tobi long before his death,” Akingbolu said.

Litigants do no wrong

Adeleke, on the other hand, said if an action was initiated at a Federal High Court, Abuja by a litigant, the litigant and his lawyers were in order because Federal High Court was one in Nigeria.

“Having different branches in all the states is purely for administrative convenience. In other words, the Federal High Court in Uyo, Ibadan, Maiduguri and Sokoto is one and any litigant can initiate an action in any one without running foul of court process,” Adeleke said.

“If  the matter is instituted in a state high court in Abuja i.e. (FCT) by a litigant, it could still be valid for the following reasons: if the litigant resides in Abuja although the party secretariat is in Ekiti. He could still initiate court proceeding at FCT High Court because he resides in Abuja.

“If the other party equally resides in Abuja, even though the party secretariat is outside Abuja, he could initiate the action in the FCT high court to avoid the rigour of bringing an application to court either for a substituted service and or application to serve outside the jurisdiction.”

He argued that the issue of jurisdiction depended on the litigants involved.

“If both of them at the end of the day subject themselves to the jurisdiction of FCT Federal High Court in Abuja, it will still not be seen as abuse of court process,” he said.

Nevertheless, he noted that this was not to say the other party could not challenge the jurisdiction of Federal High Court, Abuja in a matter that meant to be initiated outside Abuja.

He said the practice by some politicians showed how desperate they were to win their case at all cost to the disadvantage of their opponents.

“The problem is that our administration of justice is loose-ended to encourage this act of shenanigan. That is why some people are advocating for review of our judicial system to checkmate what people could see as an abuse of court process.

“The position of the Electoral Law is that intra-party dispute should be resolved within the party without the  court. That is why internal party squabbles or disputes are usually regarded as ‘non-justiciable’. Therefore, going to court is purely time-wasting and oan rchestrated attempt to frustrate the other party.”

He noted that most state judges were appointed by the governors of the states and as such, might not be courageous to call a spade a spade in a political matter.