New Telegraph

November 28, 2023

A country undermines the judiciary at its peril (Part 2)


The judiciary, as the saying goes, is the last hope of the common man and woman. This claim is predicated upon its pre-eminent role in protecting the rights of every individual or organization, against violation by the strong in the society.

The role lies at the heart of every judicial institution in the world, hence, constitutes the justification for its existence.

The Nigerian judiciary, whether at the federal or state level, has ever since it came into existence, struggled very hard to assert its independence so as to perform this duty. For the realization of an ideal judiciary, the judiciary should not be burdened by some extraneous factors that nibble at its independence, or assault its integrity.

Factors that lead to disobedience to court orders

Some of the factors that contribute to disobedience to court orders as found out by SPIDEL in its August 2022 Annual Conference, include, but not limited to, abuse of discretionary powers by various courts; lack of judicial integrity and lack of judicial independence.

Disregard for the rule of law by the Executive; weak machinery for enforcement of court orders; and also the giving of unenforceable orders were also found to enhance disobedience to court orders. There is no doubt that the welfare of Judges must be paramount in justice delivery as this helps in combating corruption in the Judiciary.

Although the enforcement of court orders is essentially an administrative function of the Sheriff section of our courts, the Sheriffs and Civil Process Act, 2004, presents a formidable obstacle to the enforcement of court orders and judgements.

The reason is the requirement of consent of the Attorneys- General of the Federation and States prior to enforcement of judgments. This confusion and dilemma are further exacerbated by the spate of conflicting decisions of trial and appellate courts on the interpretation of Section 84 of the Sheriff and Civil Process Act (S & CPA).

Litigants therefore are confronted with bare judgements that they cannot enforce. All their labour goes in vain. The critical issue that also arises from section 84 of the S & CPA is whether the Central Bank of Nigeria is a “public officer” in the interpretation of the said Section 84.

Can an inanimate institution become a human being that occupies an office as a public servant? Not only are judgment enforcement units of our various courts confronted with serial cases of fraud, abuse of office and corruption, the introduction of the Single Treasury Account (STA) has virtually crippled enforcement of court orders.

Judgment creditors are not able to effectively and promptly attach properties or monies belonging to judgement debtors through garnishee proceedings. Added to this quagmire is the very slow pace with which appellate courts decide cases bordering on execution of judgements brought before them. Similarly, the courts have themselves not been quite firm in using the weapon of contempt proceedings to enforce their judgement.

The requirement for an application to the Commissioner of Police prior to enforcement of a judgement creates a fresh avenue for extortion. Many Police officers and court workers are known to tip off judgement creditors to hide their monies and properties, or rush to court with interlocutory applications to frustrate execution.

Some instances of attacks on the judiciary

When the office of Chief Justice Muhammadu Uwais was burgled in 2005, few could have imagined what lay in store for his brother Justices of the apex court and the Court of Appeal some years later, in October 2016.

On that infamous day, the homes of no less than seven Justices of both courts, including the Federal High Court, were savagely attacked and raided by armed hooded agents of the State (the SSS and the EFCC), on the ostensible ground of looking for evidence of official corruption and economic crimes.

In 2019, less than three years later, this brazen and unprecedented assault was reenacted when the then Chief Justice of the Federation, Hon. Justice Walter Onnoghen (rtd), was first suspended by President Buhari on the strength of a phoney ex-parte order made by the Code of Conduct Tribunal, after which he was charged before the same Tribunal for what was widely perceived to be spurious, pre-meditated and trumpedup charges.

He was subsequently forced into premature retirement from his exalted position as CJN, and promptly replaced by the government’s preference. The Hon. Justice Nganjiwa of the Federal High Court was similarly indicted and charged to court by the EFCC for corruption and was only reprieved by the Court of Appeal on the ground that, as a serving judicial officer, he enjoyed immunity from all infractions, except crimes allegedly committed by him outside the scope of his official duties and functions.

The court held that he (and other judicial officers) could only be prosecuted for official corruption by law enforcement agencies if they had first been stripped of “the toga of judicial immunity” by the body constitutionally charged with exercising disciplinary control over them – the National Judicial Council.

See Hon. Justice H. A. Nganjiwa vs. FRN (2017) LPELR-43391 (CA). Another infamous and even more egregious attack on the Judiciary was reportedly perpetrated by thugs led by a former Governor-elect of Ekiti State in September 2014.

The presiding Judge, Hon. Justice Adeyeye Ogunyemi, was reportedly physically assaulted and brutalised in the attack. This followed a similar attack a week earlier,    on another Judge in the State, Hon. Justice Olusegun Ogunyemi, by persons reportedly led by thugs loyal to the same Governorelect.

That judicial officer was reportedly so traumatised that he was forced to flee the State for dear life. Armageddon appeared to have been finally unleashed when on Friday, 29th October, 2021, the official residence of the now honourably retired Supreme Court Justice, Justice Mary Ukaego Odili, JSC (rtd)’ was brutally attacked by some armed faceless men believed to be security agents in a Gestapo-like manner.

It was believed their mission was to either kill or maim the amiable Judge, under the thin guise of executing a search warrant at an obviously wrong address, even when the situs of the supposed search was clearly stated on the Magistrate Court-endorsed search warrant.

There was nothing similar between No 9, Imo Crescent which was endorsed on the search warrant and No 7, Imo River Street, Maitama (Justice Odili’s residence). It was clear that this was a mission foiled by many Nigerians (including my humble self) who rushed to the scene and frontally confronted the hoodlums.


Non-violent interference with the judiciary

Instances of less direct targeting of the judiciary outstrip the few direct attacks narrated above.

While less physically and psychologically traumatising, they are, nonetheless, not the least acceptable by any stretch of the imagination. Indeed, in many ways, they are often worse, because being invidious; they are usually hidden from public view, unlike the others which were conducted in the full glare of cameras.

They include the following: The removal, in 2004, of the Oyo State Chief Judge, Hon Justice Isaiah Olakanmi, by the State’s Executive in spite of a letter from the National Judicial Council (NJC), advising the Government against it, and insisting that, under the Constitution, the NJC – and not the State Government – possessed such powers to remove him.

There was also an attempt by the then Governor of Kwara State, Dr. Bukola Saraki, and the State House of Assembly to remove the State Chief Judge, Hon. Justice Raliat Elelu-Habeeb. This was condemned in very strong words by the Supreme Court which declared her removal unconstitutional and also affirmed the decisions of the trial Court and the Court of Appeal.

The court re-asserted that under the Constitution, State Governors and State Houses of Assembly cannot exercise disciplinary control touching the removal of State Chief Judges or other State Judicial officers, except the NJC.


Disobedience to court orders

Instances of disobedience to court orders by the Executive aside those earlier highlighted, are legion.

The following are some of them: The refusal by the Federal Government, in 2004, to comply with the order of the Supreme Court to release statutory financial allocations due to Local Government Councils in Lagos State, which President Olusegun Obasanjo had withheld on the ground that the State Government allegedly unconstitutionally created additional local councils and intended to fund these new councils from funds solely meant for the pre-existing councils;

The then ruling Peoples Democratic Party (PDP) also disobeyed a court order to reinstate the Governor of Anambra State, Chris Ngige, whom the court had ruled in May, 2005, was illegally removed from office. Other institutions (such as the Independent National Electoral Commission) have also serially disobeyed court orders.

INEC has historically flouted judicial orders to withdraw certificates of return by which it endorsed the election of particular candidates; preferring to look the other way.

In August 2005, the then Chief of Naval Staff (who was appointed by the President and served at his pleasure), was adjudged to be in contempt of court for failing to obey orders to release an impounded shipping vessel.

Now This

Interference by the executive through nonfunding of the judiciary The aphorism, “he who pays the piper dictates the tune”, is seldom more apposite than in the subservient relationship between the Executive and the Judiciary in Nigeria – with the latter being the Piper, of course.

This historically skewed relationship has resulted in High Court Chief Judges as well as the Chief Justices of Nigeria, the Presidents of the Court of Appeal and those of the National Industrial Court having to go cap-in-hand, literally crawling before State Governors and the President for funding for everything. This ranges from recurrent expenditures (salaries, allowances, and running costs) to capital projects.

This situation is hardly ideal as its implications are all-too grave for everyone to see. This ugly situation persists despite numerous court orders (and even a Presidential Executive Order) which conferred financial autonomy on at least the Federal Judiciary. (To be concluded next week).

And this

Crack your ribs

“Dating a nurse is not romantic at all. Anytime she looks at you, all she will be seeing is malaria.”

Thought for the week

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are blowing”. (Caroline Kennedy).

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