Nigeria: Senior Lawyers Weigh in On Conflicting Orders

28 September 2021

With conflicting orders taking the centre stage in the judiciary in recent times, senior lawyers and jurists assembled on Thursday in a virtual meeting organised by the Nigerian Bar Association (NBA) Section on Public Interest and Development Law (SPIDEL) titled 'Contradictory Ex Parte Orders: Implications and Consequences'.

In attendance were retired Justice of the Supreme Court Rhodes Vivour and former NBA president J.B. Daudu (SAN).

Other participants were senior advocates of Nigeria Lateef Fagbemi, Justina Anayo Offah, Paul Ananaba, President of NBA Olumide Apata, and Monday Onyekachi Ubani Esq., and Ondo State Governor Rotimi Akeredolu (SAN).

Akeredolu, who is a former president of the NBA, dropped the bombshell that the Federal High Court ought to re-define its extra-territorial jurisdiction to end the procurement and grant of 'black market ex-parte orders' which ultimately achieve nothing other than obfuscate the democratic process.

The recent Anambra governorship election primaries had culminated in the issuance of conflicting orders on the same subject matter just as the leadership tussle of the Peoples Democratic Party (PDP) elicited multiple litigations that resulted in divergent court decisions.

The Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, consequently summoned chief judges of states; queried judges who granted conflicting orders and referred them to the NJC to face probe for allegedly falling short of what was required of them.

According to Akeredolu, every politician wants to take advantage and has a right to bring any matter before his lawyer, but it is for the lawyer, if he has a name, to decide whether or not to file a case in court.

NBA President Olumide Apata said the association is extremely worried, over the situation, adding that the absence of sanctions has made it possible for members of the NBA responsible for that show of shame.

He, however, promised that any lawyer found to be involved in the show of shame will face the music.

Apata said, "The NBA is extremely worried with a deep sense of shame. The Bar and the Bench have been called out. It is an existential issue, our profession is threatened."

According to Rhodes-Vivour, the resurgence of ex parte orders is seen during the run-up to elections on primaries and this is because the stakes are too high.

He listed six conditions under which ex parte orders injunctions should be granted.

He noted that the court should "grant ex parte order if reparable or serious mischief will result if it is refused. Also, if satisfied that delay caused by proceedings in ordinary ways might entail reparable or serious mischief, the court may make a temporary order.

"It must be an exceptional case, which is serious and unjust. It should only last for a short time, between five and seven days, and the judge should do well to state it. Unnecessary adjournment should not be granted to the beneficiaries of ex parte order.

"Finally, ex parte orders should be granted only after the writ of summons or originating processes have been issued. The only exception is if the circumstances of the case are very urgent," Rhodes-Vivour noted.

Justice Rhodes-Vivour, who wrote the lead judgment in the case of PDP vs Sheriff in 2017, said in 1990, the then Chief Justice of Nigeria (CJN) Mohammed Uwais, set up the Kayode Eso panel.

Rhodes-Vivour also said legal practitioners, who make it a practice to file suits outside jurisdiction or obtain ex parte orders knowing that a similar order had already been obtained, should be sanctioned for infringing the rules of professional conduct.

"Judges and lawyers know these guidelines very well. But why is there a resurgence of ex parte orders? There is a resurgence of ex parte orders during the period of run-up to an election. Primaries are held. They are hotly contested. The stakes are too high," he noted.

According to Daudu, very stringent punishment of a deterrent nature ought to be agreed upon and scrupulously applied by the gatekeepers of the two branches of the legal profession - the National Judicial Council (NJC) for judges and the Legal Practitioners Disciplinary Committee (LPDC) for legal practitioners - without exception.

"The principle that lawyers are ministers in the temple of justice is anchored on the ability of those who serve in the temple of justice to keep the house of justice pure and unpolluted. Indeed, the phrase is that both lawyers and judges are co-ministers in the temple of justice. Therefore, none of them can or ought to exhibit bad behaviour.

"Where a legal practitioner knowingly advises his client to seek ex parte order when he knows that the circumstances do not envisage, contemplate or support such an application, or when counsel engages in forum shopping by going to a court totally lacking in territorial or even subject matter jurisdiction or one with jurisdiction but 'recruited' to resolve a substantive dispute through ex parte order etc, these conduct, and they are legion, do not only pollute the system but also amount to a breach of the Rules of Professional Conduct for Legal Practitioners 2007.

"Rules 1, 15, 24, 30 and 34 of the RPC 2007 are applicable to these variants of misconducts," he said.

The former NBA president said "where there is a complaint based on any of the identified variants of misconduct, the legal practitioner is liable to be tried by his peers in the LPDC.

"After the LPDC has finished its work in the case of suspension or admonition as punishment for the affected legal practitioner, who is also a Senior Advocate of Nigeria and it is not satisfied, as the punishment is compatible with the continuous wearing of the rank even after the period of suspension, the (LPPC) may then meet to withdraw the rank, whether permanently or for a specified period of time," he averred.

He stressed that only the LPDC and the Supreme Court, through the office of the CJN, can exercise disciplinary powers over an erring legal practitioner accused of running afoul of the Rules of Professional Ethics for Legal Practitioners 2007.

"On the part of the judge, it is the gravity of the misconduct or its frequency or its rampancy that will determine which sanction will be imposed. In an event that the misconduct involves allegations of bribery, the participants may also be subjected to criminal prosecution and punishment in a court of law.

"Also, a judge before whom a frivolous application is brought has the powers to cite counsel who filed such action/application for professional misconduct.

"But alas, how do we discourage the political class from interference with both the Bar and the Bench? The truth is that the politician is beyond or outside the professional disciplinary control/jurisdiction or regulation/mechanism of both the Bar and the Bench.

"Therefore, all that can be done, apart from imposing very stiff punishment on the lawyer and the judge found wanting or making themselves available for political manipulation, is to enter their names into a roll of dishonour."

This, according to Daudu, will serve as a deterrent such that when a similar situation arises in the future, other lawyers and judges will be hesitant from burning their fingers.

Fagbemi on his part said there is total unanimity on the issue, adding that the two professions - law and medicine- are very difficult to enter but very easy to get out of because they are regulated.

The only situation you can approach the court for ex-parte order in election matters, according to him, is when you want to serve the opponent by substituted means. He also called for sanctions against erring lawyers.

According to Mrs. Justina Anayo Offiah SAN, the problem is not in the ex parte order in itself but in the manner in which the process is employed.

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