How politicians employ ex parte applications to cause crises

Oladimeji Ramon

For the late MKO Abiola, June 12, 1993 was a day of hope. The tenacious businessman and flamboyant politician also succeeded in infecting Nigerians, across tribes and ethnicities, with his message of hope. Abiola built his hope on June 12, 1993 to become Nigerian President and liberate the most populous black nation from long years of autocratic rule by the military. This hope would have become a reality but for a late-night interim injunction by the late Justice Bassey Ikpeme which crushed it and killed Abiola’s dream. Today, June 12, in Nigeria, is remembered with nostalgia and regrets.

Interim injunctions, by their nature, are beautiful. They were designed as preservative orders to be granted by judges, confronted by ex parte applications, in cases of extreme urgency. They are to be granted to save an applicant from suffering irreparable or irreversible damages.

The beauty of interim orders has been exemplified in their use by the Economic and Financial Crimes Commission for the recovery of looted funds and assets.

Once the EFCC has traced looted funds into a bank account, they quickly file an ex parte application for an interim injunction to freeze the account.

Without such an interim injunction, the looter would easily empty such bank account and take the funds out of reach before the EFCC could conclude investigation and apply for a permanent forfeiture order.

But like many beautiful things that get corrupted in the hands of desperate Nigerian politicians, ex parte applications and interim orders have become a weapon of abuse and crises.

The crises are often worsened when antagonistic politicians approach separate courts of coordinate jurisdiction to get countermanding interim orders.

Immediate examples can be found in the power crisis currently brewing in the ruling All Progressives Congress.

Following the suspension of Adams Oshiomhole as the National Chairman of the APC, the party’s Deputy National Secretary, Victor Giadom, declared himself the acting National Chairman of the party, citing an interim order obtained from Justice Samira Bature of the High Court of the Federal Capital Territory, Abuja on March 16, 2020.

Justice Bature would later be moved on June 18 to further extend the interim order empowering Giadom to function as APC acting National Chairman.

But barely 24 hours after Justice Bature extended the order, Justice Florence Fiberesima of the Rivers State High Court in Port Harcourt on June 19 made an order of perpetual injunction restraining Giadom from parading himself as acting APC National Chairman.

Rather than help, these two conflicting orders have only deepened the crisis in the ruling party.

But Justice E. O. Obile of the Federal High Court in Port Harcourt saved the Peoples Democratic Party a major crisis when he refused to grant an ex parte application on Tuesday, seeking to stop Governor Godwin Obaseki from contesting in the governorship primary of the Edo State PDP scheduled for Thursday.

The circumspect Justice Obile directed the applicant to go and put the defendants on notice and for both sides to return to court on Wednesday.

On Wednesday, when the parties appeared in court, they eventually opted for an out-of-court settlement and withdrew the suit.

Perhaps with the APC crisis weighing on his mind, the Chief Judge of the High Court of the Federal Capital Territory, Justice Ishaq Bello, seized the occasion of the inauguration of the new executive committee of the Abuja branch of the Nigerian Bar Association last week, to reiterate that granting of ex parte applications relating to political cases had been banned in the courts under him.

Justice Bello said the policy was to encourage politicians to settle their disputes internally without court’s intervention.

The CJ said, “They (politicians) must have observed that this jurisdiction has demonstrated a sense of repose against granting ex parte injunction or any restraining order to forestall any electioneering activity.”

The immediate-past Chief Judge of the Federal High Court, Justice Adamu Abdu-Kafarati, had also in September 2018 ahead of the 2019 general election, barred judges under him from granting ex parte applications in political cases.

Justice Abdu-kafarati had said, “I believe that controversies, especially in political cases, can be reduced when the court takes a decision after hearing all the parties in the case.”

A Senior Advocate of Nigeria, Chief Ifedayo Adedipe, said Justice Bello’s decision deserves commendation because ex parte applications in political cases had done more harm than good.

Adedipe said, “If you go down memory lane, you will recall that the June 12, 1993 presidential election in this country was annulled as a consequence of an ex parte order and the involvement of the judiciary in a rather unsavory fashion, which caused more harm than good.

“Ex parte applications or injunctions are meant for cases of real urgency in which if the order is not made irreparable injuries will be caused to the applicant. It is not meant to thwart development in the political arena. Some of these ex parte applications are rather unfortunate. I am one with His Lordship for that directive.”

The President of the African Bar Association, Mr Hannibal Uwaifo, also hailed Justice Bello for his directive.

Uwaifo said, “Political cases, by their nature, are not meant for judicial interventions. Nigerian politicians always refuse to play by the rules and the judiciary has now become the only saviour.

“While it will be counter-productive for the judiciary to fold its hands and allow politicians to settle scores with their fits or guns and cutlasses, the judiciary has to be very careful in  granting orders that will affect a candidate or political parties only to find out later that these orders ought not to have been granted.

“So, insofar as the directive of the Chief Judge of the FCT High Court, Honourable Justice Ishaq Bello, is meant to deal with these problems, it is fully and honestly supported by the African Bar Association and by my humble self. And I also urge other state Chief Judges to replicate same, so as to save the country and the judiciary from embarrassments from the machinations of politicians.”

But another Senior Advocate of Nigeria, Mallam Yusuf Ali, and Lagos-based lawyer, Mr Ajibola Oluyede, said notwithstanding the CJ’s good intention, an administrative directive was not enough to stop judges from entertaining ex parte applications in political cases.

They argued that for such a directive to be enforceable, it must be backed up with amendments to relevant laws.

Ali said, “We must start from the basics. Every judge that is approached with any application, be it ex parte, be it on notice, has discretion to exercise in accordance with the law. And as long as the judge exercises the discretion judicially and judiciously, it will be above board.

“I do not think that the directive that judges should not grant ex parte applications can be done administratively except there is an amendment to the relevant laws, which expressly prohibits it. I think Section 6(6) of the Constitution will still be supreme, which gives all our courts of records the power to exercise their discretion.

“It is a good advisory from the CJ, given our experiences about what ex parte injunctions have done to us, starting from the annulment of the June 12, 1993 presidential election. But that notwithstanding, there must be a proper law to back up such a directive.”

Speaking in the same vein, Oluyede said, “I think a mere administrative order from a Chief Judge is not sufficient and except for the inherent threat of administrative disadvantages to an erring judge, it actually has no legal basis for enforcement.

“I however understand how frustrated many Chief Judges may be at a series of petitions against judges for a variety of reasons (including unjustifiable grants of ex parte orders) and the consequent desire to find a solution.

“The FCT High Court, in particular, has, in recent times, been a hotbed for some questionable judgments and orders and perhaps the CJ is seeing the cup running over now. I however see this as another vote of no confidence in the quality of some of our judges, particularly in the FCT High Court and would therefore find it sad that the same tarnish brush be applied to all judges when some will on their own not grant unnecessary ex parte orders anyway because of their maturity and wisdom.”

PUNCH

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