The National Judicial Council (NJC) has had cause to sanction judges who did not exercise proper discretion in granting ex-parte orders, which are made without waiting for a response from the other party to a case. The political crisis in Rivers State has again brought to the fore the need for judges to exercise caution in granting orders in which those affected are not heard or put on notice, writes Assistant Editor ERIC IKHILAE
As the political crisis in Rivers State remains unabated, law experts argue that the December 12 ex-parte ruling by Justice Monina Danagogo of the High Court of Rivers State has further compounded an already difficult situation.
The development has reignited the call for stiffer sanction for judges found to have abused the exercise of their judicial discretion by granting frivolous ex-parte injunctions.
The smouldering political crisis assumed a more intense dimension last week with the latest intervention of the Judiciary on December 12.
The Rivers State House of Assembly has remained unstable since late October when the House issued impeachment notice on Governor Siminalayi Fubara.
The House was subsequently polarised, with 27 of the 32-member Assembly, acting in opposition to the Governor, with four, led by Edision Ehie, supporting Fubara.
A section of the House of Assembly building was set ablaze on the night of October 29.
The next day, Ehie, who was the majority leader of the House, was sacked on the allegation that he knew about the fire that destroyed part of the Assembly complex. The proceeding was supervised by Martin Amaewhule and Dumle Maol as Speaker and Deputy Speaker.
Before the sun could set on Ehie’s suspension, about eight members of the House announced the sack of Amaewhule and Maol. They later announced Ehie as the Speaker.
Shortly after he was made Speaker, Fubara issued a directive, relocating the sitting of the House to allow for the renovation of the burnt structure.
The 27 members, led by Amaewhule, rejected the Governor’s directive, describing it as an attempt by Fubara to muzzle the legislative house. They vowed to continue to conduct legislative business with the Assembly complex.
But, in a bid to prevent the Amaewhule-led faction of the Assembly from carrying out it’s threat, Ehie filed a suit before the High Court of Rivers State.
He accompanied the suit, marked: PHC/3030/CS/2023 which he filed in his name and that of the state Assembly, with an ex-parte application, seeking interim injunctive reliefs against Amaewhule and other defendants in the suit.
On December 12, Justice Danagogo heard the ex-parte application and issued restraining injunctive reliefs against Amaewhule and others.
Justice Danagogo recognised Ehie as the Speaker and restrained Amaewhule and Maol from further parading themselves as Speaker and Deputy Speaker or interfering with the activities of Ehie as Speaker of the Assembly.
The judge cautioned the defendants against using thugs and policemen to forcefully access the Assembly complex.
The December 12 ruling by Justice Danagogo emboldened Ehie to conduct proceedings with just four members, with the exclusion of 27 others, believed to be close to Wike.
Defectors’ seats declared vacant
At a sitting of the House supervised by Ehie on December, 13 the Assembly declared vacant the seats of the 27 members, who announced their defection from the Peoples Democratic Party (PDP) to the All Progressives Congress (APC).
Also on that day, the four-member Assembly, led by Ehie, argued that the decision to declare the seats vacant was in compliance with Section 109 (1) (g) and 2 of the Constitution.
Ehie, who read the names of the lawmakers affected, urged the Independent National Electoral Commission (INEC) to conduct fresh elections within the time frame provided by law to fill “the vacant seats.”
On the same say, Fubara presented the 2024 budget of N800billion before the five-member Assembly, an Appropriation Bill the Governor signed the next day.
On the same December 14, while Fubara was assenting to the Appropriation Bill, the other 27 members, led by Amaewhule were also conducting legislative businesses on behalf of the state.
By a motion unanimously adopted, the Amaewhule-led faction converted the auditorium of the House of Assembly to its chamber in view of the demolition, which was carried out the previous day by Fubara.
The 27 lawmakers condemned what they described as the heartless and brazen demolition of the legislative complex by the governor without their approval or knowledge.
In another motion sponsored by 26 members and moved by Ofiks Kabang, representing Andoni constituency, the legislature urged the Federal Government, the Inspector-General of Police (IGP) and the international community to beam their searchlight on the alleged constant attack by the state Executive on the Legislature.
They passed the Rivers State House of Assembly Funds Management (Financial Autonomy) Bill, 2023 and the Rivers State Local Government Law, No. 5 of 2018 (Amendment) Bill, 2023 into law.
The 27-member members also passed the Rivers State Local Government Law, No. 5 of 2018 (Amendment) Bill, 2023 after a debate on the Report of the House Committee on Local Government, which was presented by the Chairman of the Committee, Ignatius Onwuka.
Previous judicial interventions
Before the December 12 ruling, the court had issued two ex-parte rulings in favour of the gGovernor.
On November 1, Justice Ben Whyte of the High Court sitting in the Isiokpo division in Ikwerre Local Government Area, issued an ex-parte interim order, restraining the state House of Assembly and Amaewhule from carrying out any actions concerning Fubara’s impeachment.
The ruling was on a motion ex-parte filed through his lawyer, Damian Okoro (SAN) the same say along with a motion on notice and other originating processes.
The order was also directed at the Maol (Deputy Speaker), the Clerk of the House and the Chief Judge of the state, Justice Simeon Chibuzor Amadi.
Justice Whyte ordered parties to maintain status quo pending the determination of the motion on notice and adjourned to November 14, 2023.
Also on the same November 1, Justice Phoebe Ayua of the Federal High Court sitting in Port-Harcourt issued a similar order restraining the state’s House of Assembly and others from taking any further steps in respect of the planned impeachment of Fubara.
The order was on an ex-parte motion filed in a suit instituted against the Assembly and eight others by two PDP members – Amadi Madubuochi and Goya Oluka.
Specifically, Justice Ayua said: “An order is made, directing that all parties on record respect the court and should not take any step concerning the subject matter in this matter, since the matter is already before this court (sub judice) pending the hearing and determination of the motion on the notion.”
The judge also ordered that the respondents be notified about the pending suit, marked: FHC/PH/CS/234/2023, and motion on notice for interlocutory injunctions.
He then adjourned till November 9 for a hearing of the motion on notice.
Listed as respondents/defendants in the suit are the Rivers State House of Assembly, the Speaker, Deputy Speaker, the state’s Chief Judge; Commissioner of Police, Rivers State; Director, Department of State Services (DSS), Rivers State; the Governor of Rivers State; Deputy Governor of Rivers State and the Inspector General of the (IGP).
Ex-parte orders worry lawyers
Law experts, including Chief Wole Olanipekun (SAN), Dr. Monday Ubani and Otunba Tunde Falola expressed concern over the ease with judges issue ex-parte injunctions of highly contenteous political cases.
Olanipekun, in an interview with The Nation long before the Rivers crisis, said: “Ex-parte injunctions are becoming an albatross and an Achilles’ heel of a sort for us.
“When Justice (Mohammed) Bello was CJN, there were suggestions that apart from the prerogative writs, we should abandon ex-parte applications and orders generally.
“The abuse of ex-parte orders, which should elapse after seven days, is threatening.
“Those involved should be disciplined. The Supreme Court has also said it. It’s mind-boggling.
“Very soon, I hope we’ll not be going to Ghana to obtain ex-parte orders against Nigeria and Nigerians over subject matters in Nigeria.”
Ubani noted the Supreme Court Justices, including the Chief Justice of Nigeria (CJN), had always deprecated this issue of abuse of ex-parte orders.
He added: “I am not saying you cannot use ex-parte. You can use ex-parte only in exceptional circumstance, where it creates an emergency situation that if you do not make that order, the res (subject matter) will be destroyed.
“It is in that instance that you can make an ex-parte order to preserve the res from being destroyed.
“It is always given to last for a certain period, maybe seven days.
“But, what we are seeing now is the abuse of that process. Some people will obtain an ex-parte order and hang on to it for as long as he/she can.”
Falola noted that the grant of such ex-parte order is subject to the discretionary power of the court.
According to him, the abuse of this exercise of judicial power is more pronounced in political cases.
“There are many reasons why this abuse of judicial power still persists unabated. Most of the politicians in Nigeria are greedy.
“For instance, for those who want to remain in power perpetually, they usually find ex-parte injunction as a ready made tool to outsmart their political adversaries in their political contest.
“We also have a situation where aspirants of the same political party approach few corrupt judicial officers with a view to using the instrumentality of the interim injunction to truncate the ambition of their co-contestant.
“The abuse of this ex-parte injunction occurs in so many forms, the most prominent among them is when a judicial officer recklessly grants an injunction even though the judge concerned is aware of a similar suit within or outside its jurisdiction over the same subject matter and in the process, subject the Judiciary to avoidable ridicule.
“There is no doubt the fact that one of the major reasons why the confidence the general public has in the Judiciary and administration of justice generally is being eroded is this reckless abuse of judicial power by some corrupt judicial officers in active connivance with some few elements of the members of the legal profession.
“However, let it be made clear and direct that notwithstanding the activities of these few elements, Nigerian Judiciary and the Nigerian Bar are still part of the best institutions and professional associations in the world.”
Curbing reckless issuance of ex-parte orders
Worried by the disturbing spate of conflicting ex-parte orders issued by some judges in 2021, the then CJN, Justice Ibrahim Tanko Muhammad was forced to summon heads of Chief Judges of the Federal Capital Territory (FCT), Rivers, Kebbi, Cross River, Jigsaws, Anambra and Imo states for an urgent meeting.
The meeting held on September 6, 2021, during which Justice Muhammad was said to have read the riot act to the Chief Judges (CJs).
He vowed to penalise the judges involved in granting reckless ex-parte orders.
In a statement issued after the meeting, the Director (Information) of the National Judicial Council (NJC), Soji Oye, said each of the CJs was separately quizzed.
CJN was quotes to have said: “A damage to one jurisdiction is a damage to all.
“We must therefore put an end to indiscriminate granting of ex-parte orders, conflicting judgements or rulings occasioned by forum-shopping.
“Your job as heads of court is a sacred one, and it therefore includes you vicariously taking the sins of others. There must be an end to this nonsense.
“You shall henceforth take absolute charge in assigning cases or matters, especially political personally.
“We shall make example with these three Judges and never shall we condone such act.”
Justice Muhammad warned the CJs to avoid unnecessary assumption of jurisdiction in matters with similar subject and parties already before another court, protect the court from lawyers who are out for forum shopping and work in tandem with all their judges to salvage the image of the Judiciary.
He also warned the CJs from making newly appointed judicial officers vacation judges and assigning complex cases to inexperienced Judges.
The CJN said the Judiciary would no longer condone indiscipline or allow any judge to tarnish the image of the Judiciary.
He assured that three of the judges who granted conflicting exparte orders were invited to appear before the NJC to show cause why disciplinary action should not be taken against them for granting the conflicting exparte orders.
The sanctions
True to the CJN’s promise, the NJC, at its meeting held between December 14 and 15, 2021 penalised three of the judges involved in issuing reckless ex-parte orders after considering the recommendations of the investigation committee it set up in September 2021on the issue.
The NJC accepted the committee’s recommendation that Justice Okogbule Gbasam of the High Court of Rivers State be barred from elevation to higher Bench for two years whenever he is due, as he failed to exercise due diligence in granting the ex-parte order in suit No: PHC/2183/CS/2021 between Ibealwuchi Earnest Alex and four others against Prince Uche Secondus and another.
The NJC found that there was no real urgency in the circumstances of the matter, that would have required an ex-parte order.
It also issued him with a warning letter to be circumspect in granting such ex-parte orders in the future.
The NJC resolved that Justice Nusirat I. Umar of the High Court of Kebbi State be barred from elevation to higher Bench for two years whenever due, having found fundamental defects and non-compliance with the law in granting the ex-parte order in suit No: KB/HC/M.71/2021 between Yahaya Usman and two others against Prince Uche Secondus.
It also issued Justice Umar with a warning letter to be circumspect in granting such ex-parte orders in the future.
The NJC also resolved that Justice Edem Ita Kooffreh of the High Court of Cross River State would not be promoted to higher Bench for five years for allowing himself to be used as a tool for “forum shopping” and abuse of Court process in suit No: HC/240/2021 between Mr. Enang Kanum Wani and Uche Secondus.
It found that it was evident that, in granting the ex-parte order, Justice Kooffreh was seised of earlier orders of the High Courts of Rivers and Kebbi States, being courts of coordinate jurisdiction.
Justice Kooffreh was warned to be circumspect in granting such ex-parte orders in the future.
The NJC also placed him on its watch-list for a period of two years.
Way out
Ubani, a rights activist and former Vice President of the Nigerian Bar Association (NBA) said: “My advice for judges is to always ensure that the other parties are put on notice so that you can resolve the matter once and for all.
“As a way out, it might seem there is the need for some legislative intervention in this.
“There must be a law that will specifically make provisions as to instances when ex-parte order could be issued.
“I have noticed that where you always have this abuse are in political cases.
“So, the Electoral Act or any other law we can come up with to say these are specific areas where we can use ex-parte, especially in political cases.
“I think that intervention is absolutely necessary at this juncture,” Ubani said.
Falola, an Abuja-based legal practitioner, noted that one of the ways of preventing judges from abusing their judicial powers is to ensure that stiff penalties are imposed on any erring judicial officers if it is later discovered, after investigation, that the order granted, ought not to have been granted in the first place.
“Again, the NJC, the institution saddled with the power to discipline erring judicial officers, should also set up a committee with sole responsibility of monitoring most of these cases where ex-parte orders are being abused particularly in political cases and make necessary recommendations.
“Continuous legal education of our judges is also paramount in this regard.
“This will further educate and expose our judicial officers to the danger inherent in the abuse of exercise of Judicial powers .
“As for the penalty for a judge who abuses ex-parte injunction, I believe a compulsory retirement and in deserving cases, outright dismissal from service should be imposed to serve as a deterrent to other erring Judicial officers after thorough investigation must have been conducted and the judge corned afforded opportunity to defend himself,” Falola said.
