To halt the judicial anarchy

By Eze Onyekpere

The judiciary is established in the constitution as the dispute resolution arm of government. It is stated to be the defender of rights and liberties, showing the way to the rule of law and constitutionalism. It is the arm of government that is expected to keep a cool head at a time other arms of government may lose their bearing. While the key personnel of the executive and legislature are elected, the judiciary is the arm run by experts with a high level of legal and ethical training, at least a first degree in law and law school certification. Legislators and elected members of the executive are merely required to have been educated up to at least school certificate level or its equivalent which practically means that they are not required to have passed the final examinations with distinction to qualify for election. Thus, with the backgrounds and qualifications of members of the judiciary, so much is expected from them.

The judiciary does not operate in a vacuum but is bound by law in the resolution of disputes. Section 36 (1) of the Constitution states that in the determination of civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. A fair hearing has two principal pillars, the first being the need to hear both sides to the dispute before arriving at a decision while the second is that no one should be a judge in his own case. These principles accord with commonsense and reason. There are also situations when courts can grant interim orders without hearing a party to the dispute to restrain the person from taking steps that grievously violates the rights of the applicant, to retain the status quo, preserve the subject matter of the dispute or restrain the respondent from taking unconscionable steps. Courts are graded in hierarchies and there is a clear channel of progression in the dispute resolution mechanism from courts of the first instance, up to appellate courts and the final court being the Supreme Court of Nigeria. These are matters of elementary knowledge for first-year law students and no one becomes a lawyer without a consummate understanding of these basics.

Recent developments in the polity in the exercise of judicial powers tend to portray the judiciary in a very negative light arising from the clear abandonment of these fundamental principles in the dispensation of justice. The first was the Anambra State governorship primaries and attendant flurry of contradictory orders and judgements from courts of coordinate jurisdiction. Applicants virtually traversed courts in all the geopolitical zones and orders were flying all over the place. Today, we have the chairmanship controversy in the Peoples Democratic Party. A court in Rivers State started the process by issuing an order based on the application and depositions of an applicant restraining the chairman of the party from parading himself as the chairman of the party or even parading himself as a member of the party. This raises a very straightforward poser: what was the urgency in the matter or what rights of the applicants would have been violated if the restrained party was put on notice? Putting the adverse party on notice and ordering an accelerated hearing of the suit would have made commonsense in the proceedings. Making such an order on the eve of a series of important meetings of the party and as such, debarring the respondent from participating in the meetings achieves a final verdict without hearing one party to the suit.

The ousted chairman and other members of the factionalised party have since been getting injunctions, restraining and mandatory orders from courts of coordinate jurisdiction in different states of the federation. The orders are contradicting each other and making a mockery of the judicial process. A poser once more comes to the fore: which order is superior or takes precedence since they are all from the high courts? The expectation in a democratic and civilised environment is that an appeal should have been filed and pursued against the initial order or the judge in the court of the first instance providing a clear and urgent opportunity for the adverse party to present his own side of the case to enable a more nuanced decision to be reached which would probably have led to the vacation of the restraining order.

Judges are not politicians and are not expected to give orders and judgements on the basis of political leaning or expediency. The assurance and ease with which politicians shop for judicial forums that will deliver judgements and orders favourable to their cause suggest that these orders are flawed and compromised. When a party to litigation is in a position to decide not to follow the normal judicial course of events but to shop for a favourable court, then such a judiciary in the eyes of the ordinary citizen stands discredited. Of course, litigants do not take these decisions themselves but are assisted by legal practitioners and indeed, very senior members of the Bar in the planning and execution of this summersault.

As we approach the 2023 elections, the likelihood of this level of contradictions in the adjudication of political disputes seems extremely likely to continue. If the politicians are permitted from time to time to lose their bearing and their sense of rationality, courts, judicial officers and legal practitioners are not allowed such luxury because this would be a clear template for anarchy and destruction of whatever is remaining of the current democratic dispensation. Judges should exercise great caution in acceding to requests of litigants for restraining orders or orders that debar some persons from political participation on the eve of major political events like primaries, elections, congresses, other meetings of political parties, etc.

The principle of hearing both sides to the dispute and the circumstances under which it can be temporarily dispensed with as well as when appeals should be filed is part of elementary law. Therefore, lawyers and judges who set out to be part of a process that rubbishes established principles of law should face sanctions. This seems to be the only reasonable approach to halt the denigration of the judicial process and the ensuing judicial anarchy that comes along with it.