By Abdulwahab Abdulah

The Issue of contradictory decisions from various courts in Nigeria has been on the front burner for some time. However, it got to its head recently when conflicting orders and judgments emanated from various High courts of concurrent jurisdiction.

Of particular interest are the Governorship tussle in Abia State and that of the aborted Peoples Democratic Party, PDP’s, national convention   in Port Harcourt where judges issued different directives to parties involved in same matter. In this interview, a senior advocate of Nigeria, Mr. Babatunde Fashanu, rendered his mind on the problems, its likely causes and proffer solutions.

Excerpts:

How has the Judiciary fared since the inception of democracy in 1999?

Mr. Babatunde Fashanu

The judiciary has fared fairly well. It has acted as a check and balance for the excesses of the executive arm of government, especially, in the area of elections. Many election results have been reversed after they were found to have been rigged or bedeviled with chronic irregularities.

The same goes for some legislatures, I remember the case concerning the former governor of Oyo State, Rashidi Ladoja, who was illegally impeached by the Oyo State House of Assembly, it was the Judiciary that came to his rescue and restored him to power.

I am satisfied with the performance of the judiciary generally, especially at the appellate level. However, while many Judges at the lower levels have performed excellently, some Judges at the High Court level ought to be more dispassionate in dispensing justice and avoid a situation where it appears as if they are being used by politicians or litigants when they make orders or give judgments that are obviously and blatantly contrary to the Laws and laid down rules and regulations they are supposed to apply.

Similarly, the appellate Courts, especially the Court of Appeal, ought to be more circumspect when acting as the last Court in electoral matters and not give the impression of just willy-nilly acting as a rubber stamp of whatever INEC has done without comprehensively tooth combing the complaints of the aggrieved parties. In relation to the other two arms of government, remember that the Judiciary plays a more passive role than the two.

It does not act unless a matter is properly put before it whether by the government or persons, be it corporate or individual. To that extent, the Judiciary does not need to be bothered with any relationship with them and just dispenses justice without fear or favour.

However, the Judiciary still needs to be funded through the executive, and that is the area where fundamental changes need to be made in our Constitution in favour of the Judiciary to avoid the impression of he who pays the piper dictates the tune. Obviously, the legislature has a big role to play in that too.

What infractions have you seen in the operation of the judiciary under this democratic process?

When you talk about infractions on the Judiciary, you are delving into the area of independence of the Judiciary.   Unlike during the military regimes, I have noticed less attempts at infringing on the operations of the Judiciary, especially from the executive arm of government, but a lot still needs to be done in the area of appointment of judges and Chief Judges of the states and the federal courts in which the executive arm is still involved one way or the other.

There have been tussles in some states where the Governor prefers one Judge to be the Chief Judge over the one recommended by the relevant Judicial Service Committee. This is not a problem that a good review of the relevant laws cannot resolve to give more independence to the judicial arm in such appointments. But talking about dispensation of justice generally, I think the judiciary is freer since 1999 and it is up to the individual Judges and courts to uphold their oath of office and reject any form or attempt at interference bold or subtle.

How then has judiciary arm of government contributed to the deepening of democracy?

No doubt, the Judiciary has acted as a check mate for the executive and legislative arms but I strongly believe it can do more by relaxing the rules relating to locus standi so that more Nigerians can approach the courts to right the wrongs in the society.

Conflicting court orders have been an issue of late. How have they served the cause of justice?

Conflicting court orders occur more at the lower hierarchies of courts mainly because the courts are sitting separately and they are of coordinate jurisdiction that have the same powers as to the effect or execution of their orders, be it a State High Court or Federal High Court or even different divisions of the Court of Appeal.

High Courts give conflicting orders due to duplication or multiplication of cases in different courts or before different Judges in the same jurisdictional court by litigants wittingly or unwittingly, and, most of the time, the Judges cannot be blamed because they are not aware of the pendency of a similar suit elsewhere. However, as soon as the aggrieved party approaches a court hearing a subsequently filed similar suit, the court ought to hands off the case by dismissing it being what is called abuse of court process.

Using Abia State and the aborted PDP convention as a case study, what went wrong that Judges at the same level didn’t seem to agree?

There are many conditions to be met before that can be done because the parties and the subject matter in both suits must be exactly the same and that is not usually easy to determine. In most cases, the aggrieved party needs to approach the Court of Appeal fast because a determination by the Court of Appeal is superior to those of the conflicting lower courts and settles the matter swiftly.

This manifested so well in the Abia Governorship tussle where a Judge removed the incumbent Governor and ordered that a certificate of return be given to the winner of the case to be sworn in but the incumbent Governor approached another court of coordinate jurisdiction who ordered that he should remain in office pending his appeal.

In that situation, just like that of the PDP leadership and convention saga, the parties choose which court order to obey as they are entitled to and definitely will choose that which best advanced their causes. In the Abia matter, the decision of the Court of Appeal effectively determined both cases and restored order to the State. I do not see an end to the PDP crises too except by the Court of Appeal. Of course, whilst the conflicting orders are extant, the possibility for anarchy is palpable.

At what point do you think the Chief Judge should have intervened?

There is little the Chief Judge can do because he has to assign all cases filed to Judges because everyone who files a case has a constitutional right to be heard. However, a Chief Judge, who is aware that a similar case is pending before a Judge in his state can assign the subsequent case to the same Judge hearing the earlier one, and, that way, that Judge can easily avoid giving conflicting orders but a more complex situation arises where the cases are in different jurisdictions like different states or in Federal and State Courts.

Some analysts blamed lawyers for the confusion. Where do you stand on this?

Yes, lawyers will be blamed if, being aware that their clients have been served with a court order, proceed and to file another suit in a different court of coordinate jurisdiction to counter that order. In such a situation, what a decent lawyer should do is to enter into that case in which an order has been obtained against his client and put his client’s case forward in order to vacate that order and if it goes against him, appeal to the court of appeal, meanwhile, obtaining stay of execution orders.

However, it is not in all cases that the lawyers know the true situation because the client might have been dodging service of the court order against him and approaches his own lawyer without disclosing that another case was pending against him.