The Judiciary and Abuse of Court Process

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By Onikepo Braithwaite

Respect begets respect. While some of us are fighting to restore the dignity and respect of the Judiciary, insisting that it must take its rightful place as the third co-equal arm of Government (not third position), some Judicial Officers are busy running down the Judiciary and its reputation, of course, with the collaboration and participation of Lawyers. Both are actively playing starring roles in bringing the Judiciary into serious disrepute. I guess this is simply a microcosm of what our society has become – shameless and lawless. This is the tale of two disgraceful examples of abuse of court process, which took place in the last couple of weeks. I am glad that the Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad, has publicly taken exception to this unacceptable practice, and summoned the Chief Judges of the States whose Judges have been involved in this abuse of court process. Enough is enough!

In a nutshell, an abuse of court process is “the improper use of the judicial process by a party in litigation, aimed on targeting on interference with due administration of justice”. See the case of  Allanah v Kpolokwu 2016 6 N.W.L.R. Part 1507 Page 1 at 27 per Sanusi JSC; Ogboru v Uduaghan 2013 13 N.W.L.R. Part 1370 Page 33 at 53 per Ogunbiyi JSC on the definition of abuse. One of the main forms of abuse of court process, is the institution of a multiplicity of actions with the same parties on the same subject-matter, a malaise which has unfortunately, become commonplace in Nigeria, especially in political cases. See also Ogoejeofo v Ogoejeofo 2006 3 N.W.L.R. Part 966 Page 205.

The Secondus Case

I felt more than embarrassed, when I saw what happened recently in the PDP leadership tussle. It was more than sad to see that, after an order had been made by a Rivers State High Court preventing the Chairman of PDP, Prince Uche Secondus, from parading himself as the Chairman of the Party having been suspended from the PDP at Ward level, an order which the whole of Nigeria was aware of because it concerned the leadership of the main opposition party, those who were not happy with that decision, still went ahead on a forum shopping spree to Kebbi State to obtain a counter-order restoring Prince Secondus to his position as Chairman of PDP (also irrespective of Kebbi’s lack of territorial jurisdiction). Of course, as one of my friends, a Learned Senior Advocate pointed out to me, you see political machinations here – Kebbi State is an APC political stronghold, and therefore, was more than willing to cause more confusion in the ranks of the PDP, by granting a conflicting court order! Anyway, conspiracy theory or not, there is absolutely no excuse for this type of bad behaviour on the part of the Lawyers and judicial officers, whether in Kebbi State or anywhere else.

Last year, in the Comrade Adams Oshiomhole case, in which upon his suspension from his Ward and the institution of legal proceedings against him, the Federal High Court Abuja ordered that he stop parading himself as Chairman. It is a logical consequence. How can you be the Chairman of a Party that you are not a member of? Comrade’s supporters immediately went forum shopping, and rushed to Kano to obtain a conflicting order which was favourable to him. The matter went up to the Court of Appeal, which upheld the judgement of Abuja Court. It is therefore, safe to say that the position of the law, unless it is upturned by the Supreme Court, is that, if an individual is properly suspended at Ward level, such a person is not a member of the Party for the duration of the suspension, and consequently, cannot hold any Party position.

In law, we have the Doctrine of Precedent; ‘Stare Decisis’ which simply means, “to stand by things decided”. A matter has already been decided, in this case, by a superior court; it is an authority for the courts to follow, particularly the lower courts.

The subsequent case filed at the Kebbi State High Court which restored Prince Secondus as the PDP Chairman, is an abuse of court process, because firstly, it is a duplication of an action already decided upon by a court of concurrent jurisdiction, and should have gone on appeal if there was any dissatisfaction with the decision; and secondly, the decision did not align with the judicial precedent already set by Comrade’s case at the Court of Appeal. The Kebbi decision was ‘Per Incuriam’ – perverse, that is a judgement which has been decided without reference to a statutory provision or earlier judgement which would have been relevant”. I submit that, Comrade’s case was definitely relevant to Prince Secondus’ case in this regard – in fact, it seemed to be on all fours with it, and the Kebbi State High Court was wrong to have departed from the Court of Appeal’s decision, aside from abusing court process by even entertaining the matter.

The Lagos High Court Case

There is a case pending at the Lagos High Court, which I am aware of. Having filed a matter, the Claimant obtained an order by way of motion ex-parte in one court. The matter was subsequently reassigned to another court because it was urgent, and the trial Judge in whose court the matter was pending, had travelled. The new Learned trial Judge, set aside and reversed the ex-parte order. Additionally, the Judge visited the locus in quo (the place where the cause of action arose; in this case, the subject-matter of the suit), and instructed that the status quo, in accordance with the reversal of the order, be maintained. The Claimant’s counsel then filed a notice of discontinuance of the matter.

The Claimant, within a few days of what he perceived to be an unfavourable ruling of the court, then went ahead to retain the services of a new Counsel, a Senior Advocate at that, who filed a new court process titled ‘Ex-Parte Originating Application’, a process that seems unknown to the Rules (with no proper originating process – writ of summons or pleadings), added the wife of the Claimant as a new party to the application to make it look like a fresh matter because a ‘new’ party was included, and moved more or less the same ex-parte motion that had been vacated by the previous court.

Since this was not a publicly known matter like that of the PDP matter, I imagined that the Judge who heard the new application, was unaware of the previous proceedings that had taken place in the matter, and the subsisting order of his brother Judge. How wrong I was! To my utter shock and disgust, I discovered that the two orders from the previous courts, that is, the one granting the first ex-parte order and the second one vacating, it, were attached to the Ex-Parte Originating Application (I had the benefit of perusing the court processes), meaning that both the new counsel and the new Judge who granted yet another ex-parte order in favour of the Claimant, were very much aware of the order that was subsisting in the matter. Furthermore, there was nothing urgent in the matter that required the use of a motion ex-parte, nor was there any res that would be destroyed if it was not granted; and this was crystal clear from the previous order granted, vacating the interim injunction. The Claimant was simply looking for a quick opportunity, to evict the Respondent from the disputed property!

It is more than trite, that when a litigant is dissatisfied with a ruling or judgement of a court, the proper step to take is to go on appeal to a superior court, because a court cannot sit as an appellate court on the decision of a court of concurrent jurisdiction. Instead of filing an appeal against the court’s ruling vacating the ex-parte order at the Court of Appeal, or moving a motion on notice for the same injunctive orders, which should have been filed alongside the motion ex-parte in the previous court, the Claimant abused court process by bringing a fresh application titled ‘Ex-Parte Originating Application’ brought pursuant to Order 43 Rules 1 & 3 of the High Court of Lagos State (Civil Procedure) Rules 2019, asking for the same prayers that had been vacated by the previous court. I even wonder about the practice of vacation of ex-parte orders, when Order 43 Rule 3(3) states that an injunction granted on an ex-parte order abates after seven days, unless the order is extended (Order 43 Rule 3(4)). Anyway, again, the ex-parte order was ‘vacated’ by the new court on Friday.

The actions of the Claimant and his Counsel, were wrong on several other levels. Assuming that the Claimant had the right to file this new action (which he didn’t), the Pre-Action protocol that is required before commencing the action wasn’t followed. Order 5 of the High Court of Lagos State (Civil Procedure) Rules 2019 provides only for either a Writ of Summons or Originating Summons, as the forms of commencement of an action. Therefore, any motion, whether ex-parte or on notice, cannot stand alone, but must be predicated upon the acceptable means of commencing an action, which in this case, would be a writ of summons, because it is a contentious matter that falls under the purview of Order 5 Rule 1(a)-(c) of the Civil Procedure Rules. No writ of summons seemed to have been filed at the time of moving the ex-parte originating application or at least, the Respondents were certainly not served with any writ of summons and statement of claim.

In case the Claimant did not file a writ of summons, or filed one but didn’t serve it on the Respondent, as the so-called ‘Preemptive Remedies Procedure’ (PEP) purportedly allows (a conclusion which I could not draw from a community reading of Orders 5 & 43 of the Civil Procedure Rules and the Practice Directions), here comes my argument against the use of the PEP.  The procedure allows a Claimant to file originating processes alongside a motion ex-parte for an injunctive order accompanied by an affidavit of urgency and a motion on notice. Upon the determination of the motion ex-parte, the originating process is then served on the Respondent with the motion on notice for the same injunctive orders. This is wrong. It is a clandestine, sneaky process which goes against the spirit of Section 36(1) of the Constitution (fair hearing). In this case, it was tantamount to deciding the substantive matter in favour of the Claimant without a hearing, based solely on the Claimant’s one-sided version of the story; asking a lawful occupant of a premises to vacate same, after the same court had previously restored the occupant to the premises having been unlawfully rendered homeless when the first motion ex-parte was granted.

I submit that, even if the PEP is not a faulty procedure, it was not applicable in this case, as there was no matter of urgency, nor anything that would cause irreparable damage warranting the grant of an ex-parte injunction. Judicial Officers must always use their discretion judiciously and judicially, in the interest of justice, and not flippantly.

Sanctions

Accordingly, it is time that Lawyers and Judges who engage in this unwholesome practice, be sanctioned by the Legal Practitioners Disciplinary Committee (LPDC) and the National Judicial Council (NJC) respectively. Zero tolerance for abuse of court process, must be adopted. The Rules of Professional Conduct must be amended, to expressly prohibit forum shopping and the filing of multiplicity of actions, and prescribe specific punishments for engaging in same (ditto for the Code of Conduct guiding Judicial officers). For now, for Lawyers, that kind of conduct amounts to infamous conduct under the Legal Practitioners Act, and can receive punishment as severe as disbarment. Judges can also face dismissal by the NJC. This kind of behaviour not only causes confusion and paints our judicial system in a bad light to the world, portraying it as flaky, unjust, unreliable and corrupt; foreigners who are interested in investing in Nigeria will certainly be discouraged by a system in which they run a high risk of being treated unfairly and possibly lose their investments, should they become litigants. My dear colleagues, kindly share your views on the issue of abuse of court process, the unnecessary use of the motion ex-parte and the PEP. Thank you.

Culled: Thisday

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