It is painful for a lawyer to publicly levy a charge of judicial impunity on a judge, especially
one with the considerable seniority on a superior Court of Record. That is precisely what this writer sets out to do.
This charge is not made lightly. It is compelled by clear facts and justified by two good reasons.
First, the survival of Nigeria for those who live in or trace their roots to it depends on the credibility of the judiciary as an institution. This credibility is worth defending and those who trifle with it, irrespective of how high their office is, deserve to be called to account.
Second, the judiciary in a democracy cannot be immune from the central tenet of accountability that underpins the exercise of the powers of the institutions created by and founded on elective government. Abuse of judicial power is no less offensive for being confectioned in Ermined robes.
On 3 December 2010, Ibrahim Auta, sitting as the presiding judge in suit number FHC/ABJ/CS/816/2010, involving Bedding Holding Limited vs. Independent National Electoral Commission (INEC) and six others, issued an order indefinitely arresting all processes connected with the 2011 elections even before the first step had been taken in the elections. He did this after hearing only one side for a few seconds.
He also threatens ruination on the credibility of the Nigerian judiciary. For these, Ibrahim Auta must be held to account like the public officer that he is.
Bedding Holdings claims that it has patents on every material and system that could conceivably be used to conduct elections in Nigeria. It even claims to have exclusive intellectual property on ballot boxes bearing the logos of INEC. Someone at the Patents Office clearly mis-understands their job or chooses to abuse it.
Sometime in November 2010, Bedding Holdings sued before the Federal High Court to restrain INEC from ordering the materials needed to register voters for the 2011 general elections. The case was first assigned to Justice Adamu Bello of the Federal High Court in Abuja. But Justice Bello is widely reputed to be honorable.
So, inexplicably, around November 24, Bedding Holdings quietly withdrew the case from Justice Bello’s court.
Then on November 25, the same case re-appeared on the docket of Ibrahim Auta. It included an application, heard by the judge in the absence of (ex parte) INEC or any of the five other defendants, including the Chairman of INEC, Prof. Attahiru Jega, the Federal Attorney-General and the three companies contracted by INEC to supply the Data Capture Machines (DCMs) for the voter registration, seeking to restrain them from proceeding with the process.
Ibrahim Auta heard this application and, in seconds, granted it. On December 6, John Otu, the Court Registrar, certified and enrolled the order as follows:
“That the defendants/respondents either by themselves, agents, privies, contractors, surrogates or any other person or persons claiming through them, are restrained from continuing the process of considering proposals of tendering/bidding for, producing, procuring, supplying, selling, leasing, alienating, applying or otherwise using the Direct Data Capture Machines, laptops and/or any other equipment ancillary to, or associated with the process and application of the said machines/equipment about to be supplied or being supplied by the 4th-6th defendants/respondents to the 1st and 2nd Defendants/Respondents for the registration of voters and/or compilation, production and use of a Voters’ Register for the 2011 general elections or any other elections whatsoever, pending the hearing and determination of the motion on notice for interlocutory injunction filed before this Court.”
Thereafter Ibrahim Auta perfunctorily ordered that the INEC be put “on notice forthwith” and adjourned the case to December 13.
As a judicial order, this is worse than a scandal. It is a breath-taking abuse of judicial powers on an unfathomable scale. The underlying case filed by Bedding Holdings is, at best, a commercial dispute. Even worse, it is an ill_concealed legal expedition, a tactical ploy intended to finagle a share of the N87 Billion that the National Assembly approved for INEC to undertake voter registration. If it is the former, there is no justification for the order. If the latter, the case has no bases. Either way, not even Ibrahim Auta can explain how he could justify this order.
The casual audacity of this order breaches all cannons of judicial decision making as a deliberative process. A judicial order on this scale cannot be made without hearing the parties against whom it is sought and without giving them notice. Interim orders have to consider the balance of convenience of all parties.
And the party seeking them is usually asked to provide compensatory undertakings in case the order turns out to be unfounded or more injurious to other parties than justified by the facts. Ibrahim Auta is one of the most senior judges on the Federal High Court. He knows all this.
In making his order, Ibrahim Auta did not bother with these minimal niceties. If he had, he would have discovered that he made his order in the week that INEC expected to start taking delivery of the registration equipment. In the circumstances this was an egregious example of abuse of powers. The costs to the country are incalculable. By making it, he elevated private profit above public interest on judicial stilts and raises legitimate questions.
For these acts of judicial impunity, the National Judicial Council (NJC) has a duty to hold Ibrahim Auta accountable.
His order in this case is more than just a judicial act; it is also a Bill of indictment in an astonishing case of judicial impunity. If the NJC fails to act, it licenses an auction of judicial orders in the run-up to the 2011 elections. That is not a course that Nigerians can justify or afford.
* Odinkalu is a member of the Council of the Human Rights Institute of the NBA