Dr. Muiz Banire SAN
This prompted another action in Abuja filed by Vigeo Power Limited before the Honourable Justice Emeka Nwite in which the court granted orders restraining the defendants in the suit from taking over the management of the BEDC. The court order, a copy of which I am privileged to see, also directs the directors appointed by PBE from parading themselves as directors of the company pending the hearing and determination of the motion on notice. The above orders have been observed more in the breach than observance as the Federal Government has deployed force through the police to take over BEDC and eject the board representatives of Vigeo Power Limited, the 60% shareholder of the company. The government has been carrying on as if the court order was a mere piece of toilet paper. When the police realized that there were court orders and the Inspector-General of Police chose to toe the path of rule of law, the defendants in the suit, who obviously have personal interests to satisfy, have not stopped at any act of self-help to wrest control of the company from its legitimate owners. Obviously, from the picture depicted by disobedience to court orders, the Nigerian legal system is not only embattled but battered. The question then is, how did we get here? It is a multifaceted answer. Nigerian courts themselves cannot be absolved of this complication. Most of the judges administering the laws are weak, they lack the courage to enforce their own judgments.
There is no doubt that our judges’ recruitment process is flawed in this respect. Somehow, judges without courage, integrity, competence, knowledge still find themselves on the bench or get appointed. This applies equally to our judicial elevation process. When they creep in, they compound the commotion on ground. In fact, on quite a sizeable number of occasions, judges are the ones that proffer excuses for the disobedience of court orders. The judges often forget the oath they took and the essence of their judgment. This misbehaviour, if it can be so characterized, to say the least, is not unconnected with the incompetence of some of them. They understand not the enforcement mechanism, nor the implication of their judgments being violated. Some are ab initio decapitated by their own thoughts. It is not unusual to hear judges asking questions in open court, will the government obey? Some of our judges have even become government apologists that they even deliberately render vague judgments impossible to execute. Again, some of the heads of courts and judges are also culpable. Some of the judges are reluctant to sign execution warrants, particularly when it concerns government or government associates. This certainly is traceable to the subjugation of the welfare of the judges to the whims and caprices of the executive. The judiciary still relies substantially on the executive for survival. Financial autonomy for the judiciary is still a mirage. Remember that the last agitation for the financial independence was even compromised and scuttled by some of the heads of courts. This has reduced the judges to being mere appendages to the executive.
Furthermore, the conditions and procedure of enforcements are oftentimes cumbersome and onerous such that they frustrate the victorious party. This is quite apart from the astronomical cost implication on the party seeking to enforce. In some other instances, you find judges unwittingly aiding and abetting disobedience by still entertaining the offensive party, for instance, granting the party discretionary remedy in another application or in the same suit. A rampant one again is where the court is unwilling to impose costs on the government whereas there is no law nor rule of courts that forbids same. All these are incentives to government and other disobedient parties to undermine judicial authority. The government unilaterally also frustrates the realization of judgments against it through the use of counter -force, for which it is the custodian, or the denial of the use of the enforcement agents which it controls.
The police force is deployed by the government at will. Culpable also in disregard of court orders are the Attorneys-General, Central Bank of Nigeria and other law enforcement institutions who frustrate the enforcement mechanism. In the same vein are lawyers generally who have perfected the acts. Apart from lawyers using the instrumentality of the law to frustrate the realization of judgments, they, at times, actively encourage outright disobedience of the court orders by their clients. What they, however, forget in the process of doing this, is that when the litigants lose confidence in the courts, as already happening, lawyers will lose their earnings and have nothing to fall upon.
What then is the solution to this continuous flagrant disobedience of court orders propelling anarchy in our land? First and foremost, since the breach of the rule of law is the crux of disobedience, it might well be apt to engage the political actors, ahead of the 2023 elections, on their perspectives and disposition to the rule of law, particularly on obedience to court orders. The good news is that the Nigerian Bar Association have taken the initiative in inviting the frontrunners to a session during the Annual General Meeting of the Association this month. It only remains that the conversation be centered around the rule of law and respect for the courts. As hinted above, government actually sets the stage for the society through the leadership’s disobedience to court orders. It is this mentorship that the followers embrace that has resulted into the confusion the country is in today. That is why the emerging leaders must demonstrate leadership by example, through the understanding and upholding of the rule of law, particularly obedience to court orders.
The change in narrative must commence with the government before the followership embraces the same. This is one urgent way of arresting the cankerworm undermining the judiciary. Following this is the urgent need to change the disposition of judges to obedience to court orders. Judges must realize that the essence of their judicial office lies in the obedience to their orders. This then requires strict command of obedience by them. To this end, there is the need for urgent overhaul of our judicial recruitment process. We need courageous judges. Courts must also be prepared and ready to hold in contempt parties, particularly government officials responsible for such disobedience to court orders. Going forward, court orders must henceforth be directed against a particular officer or occupier of an office in which the obedience is to be carried out.
Where this is done, it then becomes easier to hold someone culpable for such disobedience. In addition, we need to simplify the contempt procedure, particularly in point of service. This is where most contemnors hide. As canvassed earlier, beyond knowledge of the law that is fundamentally required as a qualification, we need judges that are upright in all ramifications and bold. The procedure for the enforcement of judgments equally needs to be simplified. As said above, it is currently cumbersome and complex, and sufficient to frustrate the victorious party seeking to enforce its judgment. The provisions of Section 287 of the Constitution that mandate all court judgments and decisions to be compulsorily enforced by all persons and authorities must be applied to quash the provision of Section 84 of the Sheriffs and Civil Process Act which has made enforcement of judgments against the government to be subject to the discretion of the Attorney-General.
The Constitution does not recognize such an odious and unconstitutional exception. Associated with the foregoing, is the need to review downwards the cost implication of enforcing a judgment. Currently, the cost of enforcing orders of court in Nigeria is prohibitive and discouraging, particularly the unofficial and unreceipted sums involved. There is a need for an independent department responsible for enforcement wherein you pay the official sum and withdraw while the execution takes its course. In this respect, there is a need for a technology-based process devoid largely of human interaction which breeds corruption. Stemming from the experience of Nigerians, particularly as it pertains to enforcement of judgment against the government, there is a need for the Courts to have its own armed enforcement agents independent of the police or any other executive enforcement agency.
In a place like America, I understand that there exist armed court marshals who execute enforcement. This might require constitutional amendment in case the fiat of the President and Commander-in-Chief is insufficient. As it relates to government again, there is need to start holding the Attorneys General accountable for the misdeeds of their governments as the chief law officers at their respective levels in cases of disobedience to court orders. This might require subjecting some of the Attorneys General to disciplinary measures by the Legal Practitioner’s Disciplinary Committee (LPDC). Any Attorney General that does not want such punitive measures, will ensure compliance with court orders or resign from the government.
By the time a couple of Attorneys General resign in a state or at the federal level, and no lawyer is willing to risk his career for any Governor, President or executive member, we will be heading somewhere. This might be helped further where the office of the Attorney General is separated from the office of Minister or Commissioner for Justice. This is one of the ways to tame the ineptitude of professionals in government. If all professional organizations start holding their members in government accountable, some measure of sanity will return to our governance system. Similarly, all lawyers acting equally as legal advisers in both corporate and public spaces, must be held responsible for any disobedience to court order.
Adjunct to this are lawyers generally. As remarked earlier, lawyers generally and largely also promote these acts of disobedience of court orders. Erring lawyers must be subjected to disciplinary measures before the Legal Practitioners Disciplinary Committee. Lawyers must know that if we do not urgently overhaul our regulation mechanism, we shall soon be externally regulated and that will not augur well for the profession. Self-introspection is therefore imperative now. Finally, with the hope that the country will one day have independent and focused legislators, since disobedience to court orders is a breach of the rule of law and by extension, the Constitution, it automatically becomes an impeachable offence.
Consequently, elected officials of state that disobey court orders must face removal procedure and where found guilty, be removed from the office they occupy. By the time some of them are made scape goats, sanity will start returning to the system and by extension, the country. The court by way of detriment must start punishing severely disobedience to court orders. To all of us that have formed the habit of disobeying court orders, either individually or officially, we cannot be heard to be complaining about the vices in the nation. We each continuously contribute to the problem as we disobey court orders. If we don’t realise this before, I am sure by now, the reality should have dawned on us.
Please let us desist from this act. That our country is not different from a jungle presently is an understatement. To tame the drift, therefore, it is imperative that we appreciate the nexus between the ugly development and trend of disobedience to court orders and the subordination of the rule of law. This will be a major step towards our quest to restore law and order in our society, a pre-requisite to the growth of the nation.