Conflicting verdicts by courts of concurrent jurisdiction keep recurring. Last week, two judges of the Federal High Court gave conflicting rulings on the Peoples Democratic Party (PDP) convention. There seems to be no end in sight to this problem. How can it be avoided? ADEBISI ONANUGA sought lawyers’ views.
Conflicting verdicts by courts of concurrent jurisdiction remain a problem. The development has, again, drawn attention to the judiciary which already has its hands full, battling other problems.
The problem did not begin today. Addressing Justices of the Court of Appeal (JCAs) in Abuja, during their annual conference few months ago, Chief Justice of Nigeria (CJN), Mahmud Mohammed, cautioned judges against giving conflicting judgments.
He said: “Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials.”
To put an end to a situation where a division of the Court of Appeal delivers a judgment that contradicts the one delivered by another division, the CJN advised the Court of Appeal to “have an internal law report for Justices to access either electronically or in print in order to reduce the avenue for conflict in its jurisprudence.”
He further reminded them of the advice of a former Justice of the Supreme Court, Niki Tobi, who suggested that, “immediately a decision is given in one division, it should be sent to the other divisions without delay.”
Abang vs Watila
Last week, Justice Okon Abang of the Federal High Court in Abuja stopped the Peoples Democratic Party (PDP) from holding its national convention. He warned that there would be consequences should his order be flouted.
His colleague in the court’s Port Harcourt Division, Justice Ibrahim Watila, gave the greenlight for the convention, directing the police to provide security.
While Justice Abang ordered the suspension of the PDP convention because it was being held in contravention of his order, Justice Watila ordered the convention to go on because there was no application before him seeking to stop it.
Ali Modu Sherrif and other members of the PDP National Working Committee (NWC) had approached the court seeking an interim order suspending the convention pending the determination of their motion on notice for interlocutory injunction.
Justice Abang granted their prayers, which included restraining the Independent National Electoral Commission (INEC) from monitoring the convention.
Justice Watila’s orders followed a motion brought by the Convention Planning Committee secretary, Senator Ben Obi, to compel the police, Department of State Security Services (DSS) and INEC to do their jobs whenever the convention is held pending the hearing of the motion on notice or the originating summons.
Justice Watila held that no injunction stopping the convention was brought to his notice, adding that a judgment delievered on July 4, recognising the May 21 national convention that produced the Makarfi-led caretaker committee had neither been appealed nor set aside. According to him, there was need to protect the judgment.
Justice Abang described the suit filed by Obi as “unlawful and unfortunate” saying a court of coordinate jurisdiction cannot make an order that will neutralise the proceedings in another court. “The Port Harcourt division of this court cannot make an order to neutralise proceedings in this court.
“Any court of coordinate jurisdiction that takes delight in making ex-parte orders in frustrating another court of coordinate jurisdiction’s proceedings is entirely on its own,” Justice Abang noted.
While Justice Abang, in one of his rulings, granted the prayer of Makarfi and others to be joined as joinders in the suit filed by Sherrif, the defendants were not present in court when Justice Watila gave his orders.
A recurring issue
Prior to last week’s conflicting orders, two judges of the Federal High Court, Justice Abdullah Liman of the Port Harcourt Division and Justice Ibrahim Buba of the Lagos Division had issued conflicting orders when the PDP wanted to hold a convention in May.
Three persons had laid claim to the leadership of the party – Senator Makarfi, Prof. Jerry Gana, the Interim chairman picked in Abuja and Sherriff, who was removed by the governors.
In the first order, Justice Liman issued an ex-parte order, following an application by the PDP in its suit against Sherriff, Prof Adewale Oladipo, INEC, the Inspector-General of Police (IGP) and the DSS.
He ordered: “The first and second respondents (Sherriff and Oladipo) or any and/or all of the national officers, the members of the National Executive Committee and the members of the National Working Committee, who were removed from office by the national convention of the plaintiff held on Saturday, the 21st of May, 2016, in Port Harcourt, Rivers State, be and are hereby restrained from parading/holding out either individually or collectively as the chairman, secretary or national officer or member of the National Executive Committee or National Working Committee of the plaintiff, nor do anything howsoever to negate or frustrate the decisions reached at the said convention pending the hearing and determination of the motion on notice.”
In the second order, Justice Buba, while ruling in a suit by Sherriff, Oladipo and Alhaji Fatai Adeyanju against INEC and the PDP, directed the IGP to enforce an earlier order he made on May 12 barring the party from conducting elections into offices of national chairman, national secretary and national auditor.
Problem of multiplicity of suits
Last month, Justice Oluwatoyin Ipaye of a Lagos High Court, Ikeja chided an Economic and Financial Crimes Commission (EFCC) lawyer, Mr. Babatunde Shonoiki, for going before another high court to obtain a forfeiture order in respect of a matter pending before her.
Chastising the EFCC lawyer, Justice Ipaye said: “It appears that you are keen on taking the laws into your hand. Why would you go before another court for this kind of order when the matter is before me? This kind of action is what is giving the judiciary a bad name.”
Justice Ipaye said she would institute a disciplinary action against the EFCC lawyer before the appropriate authority.
A former Abia State Attorney-General, Prof Awah Kalu (SAN), said conflicting verdicts would remain inevitable so long as parties are allowed to file multiple suits on the same matter.
“It is multiple suits that lead to multiple verdicts. If there is only one suit, there can not in any way, be multiple verdicts. And at times, far from what the public imagines, the facts are not always the same. It’s the facts that lead to judgment. That’s the difficulty. Putting it as a blemish on the judiciary is not always correct.
“It is difficult for one judge to know what is before another judge. In the first place, it will compromise their independence. It is the fact that comes directly in court that the judge has to deal with. A judge has no business nosing around behind the scene to find out whether there are similarities in another pending case,” he said.
Way out of conflicting judgments
Justice Helen Ogunwumiju of the Court of Appeal suggested, among others, the need for an active Court of Appeal website, where decisions of each division could be published, to be easily accessed by other divisions, to eliminate conflicting decisions.
Two former Nigerian Bar Association (NBA) presidents – Chief Wole Olanipekun (SAN), and Joseph Daudu (SAN), Vice President-elect of NBA Monday Ubani, Abayomi Omoyinmi, Samson Omodara and Yemi Omodele also suggested ways to tackle the problem.
Olanipekun said judges should not be too eager to grant every ex-parte application brought by lawyers.
“Law is not that an ass as people think, and assuming it even has the semblance of an ass, those who administer or practice it, that is the lawyers and judges, aren’t asses.
“Decisions of courts should be based primarily on precedents and the imperatives of relevant statutes and not really on whims and caprices of judges and lawyers.
“We even see instances of judges granting ex-parte orders where the statutes clearly forbid them from doing so. Some lawyers have also thrown caution to the winds by applying for ex-parte orders on behalf of clients in clearly ridiculous situations.”
Olanipekun believes that conflicting orders on ex parte applications as well as conflicting judgments from the Court of Appeal are an extension of indiscipline and failure to follow precedents.
He said divisions of appellate courts should have a means of exchanging and studying each other’s judgments.
Daudu said conflicting orders were avoidable if “forum shopping” based on selfish interests is jettisoned.
“Conflicting judgments are avoidable and are usually the product of either a selfish interpretation of the law or forum shopping, i.e. going to obtain orders from favourably disposed judex. Either way it is objectionable and condemnable,” Daudu said.
George Oguntade (SAN) said by the doctrine of “stare decisis”, a High Court is bound to follow decisions of the Court of Appeal and the Supreme Court, being superior courts. It is, however, not bound to follow a decision of a court that has co-ordinate jurisdiction, as such decisions, he said, are only of persuasive authority.”
In the case of PDP suits, he said the conflicting decisions are “indubitably the consequence of a brazen abuse of process by the parties involved.”
Senior lawyers have urged the National Judicial Council (NJC) to take urgent steps to stem increasing cases of conflicting verdicts by judges of the same court.
Chief Felix Fagbohungbe (SAN) decried what he called a chaotic and embarrassing situation and urged the NJC to step in. He warned judges against playing politics with judicial power.
He said: “The judiciary is playing into the hands of the political class. I’m sure the National Judicial Council (NJC) will look into the matter. It doesn’t augur well for the judiciary, it’s very embarrassing.”
Another senior advocate, Dr Paul Ananaba, agreed that the NJC’s intervention was needed.
He said: “I expect the National Judicial Council to step in and ensure that sanity is brought into the judicial system.”
Dr Joseph Nwobike (SAN) said courts should design a system of monitoring cases before other judges.
“The court has to quickly develop an internalised mechanism that would prevent the opportunity to issue conflicting decisions in respect of the same issues and causes of action.
“One of such ways may be to direct that all related matters or disputes must come before the same judge regardless of the territorial jurisdiction where it is filed,” he said.
For Mr Sylva Ogwemoh (SAN), anyone found to have breached judicial rules should be sanctioned.
“Forum shopping for favourable judicial redress to a perceived grievance is an abuse of process of the court and should be discouraged by well-meaning Nigerians.
“In any event, the legal profession and the judiciary have self-disciplinary machinery and these should be invoked at the appropriate time to deal with breaches of laid down rules and regulations.”
Ubani lamented that conflicting judgments has thrown the judiciary into confusion.
“The question people should ask is, why is it that this issue of delivering conflicting judgments is very rampant with political and corruption cases involving the high and mighty in Nigeria? Could it be that justice is dispensed based on the personality of the individuals involved?” he asked.
He said the consensus amongst the members of the legal profession that with this rising trend, it may get to a stage where these political and corruption cases will not be cited as precedents in subsequent cases contrary to the well established rules of “stare decisis”.
He said: “What determines decisions of court are the facts of the cases and reliefs sought from the court. If ‘A’ approaches a court and presents his facts and seeks reliefs different from ‘B’ on a seemingly similar situation, then the courts should not be blamed if what appears to be a conflicting judgement is given.
“The fault should not be attributable to the court, but to parties who precipated the crisis in the first place in presenting facts and in the seeking of their remedies wrongly.”
Ubani suggested that a general practice directive should be issued by the Chief Justice of Nigeria to the judges to the effect that all similar matters involving similar subjects and parties should always be consolidated for hearing by one judge at a time.
He said on no account should a similar matter already being handled by a judge either at the state or federal high court be handled by another judge of equal jurisdiction.
“The Chief Judge of the State or the Federal High Court should ensure this harmonious relationship exist in all cases that have similar facts and parties. Any division that breaches this directives should be severely punished to act as a deterrent.
“We must establish order and stability in the legal profession to avoid erosion of confidence by the members of the general public,” he said.
A member of the Ogun State Judiciary Commission, Abayomi Omoyinmi remarked that the situation at hand may destroy the confidence of people about our justice system.
He observed, however, that facts put before the courts are not similar and the courts are bound to pronounce on the facts as presented, not facts as viewed by the public or read on pages of newspaper.
“Nevertheless, the cases in which the conflicting decisions arose can be appealed against to higher courts up. Where there are two conflicting decisions of the Court of Appeal, for example, the principle is that the lower courts should follow the later of the decisions, but ultimately it is the apex court that has the final say. The decisions of judges will continue to vary and differ due to perceptions of issues and experiences,”he noted.
Omodara, former NBA Ikeja Branch Welfare Secretary said conflicting verdicts were disheartening.
Omodara said the NJC and Legal Practitioners Disciplinary Committee should swing into action to decisively deal with this issue and nip such further acts in the bud.
Omodele said conflicting orders could arise because judges only decide on facts before them. He urged any dissatisfied parties to appeal. According to him, it behoves the Court of Appeal and the Supreme Court to set matters straight.
“So, if it gets to the Court of Appeal, it would be streamedlined, hence it would not be conflicting again because that is the purpose of having appellate courts.
“They will make sure that the conflict is corrected. But one cannot say that the judges who made those rulings made a mistake,” Omodele said.
