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Access to Justice Expresses Deep Concern about Ex Parte Court Orders that Interfere with Efforts to bring former Public Officers to Account

 On Wednesday 10 October 2007, a Federal High Court in Benin City, Edo state reportedly issued an order of interim injunction restraining the Economic and Financial Crimes Commission (EFCC) from carrying out certain actions against Chief James Ibori, the former governor of Delta state, and other serving and erstwhile office holders in Delta state. The order, made pursuant to an ex parte application, and signed by Justice G.C. Okeke in effect forbids EFCC from taking any steps to arrest or detain Chief Ibori and the others. The EFFC is also restrained from freezing any of their accounts or compelling them to release any documents or information requested by EFCC in furtherance of its investigations into allegations of corruption against the parties.

Before now, several ex-governors who were also being investigated for alleged corruption by EFCC had benefited from similar orders obtained against the prosecuting anti-corruption authorities. The precedent was set by Orji Uzor Kalu, the former governor of Abia state who obtained a court injunction from a High court in Abia State restraining the EFCC from arresting and prosecuting him. Ayodele Fayose, erstwhile governor of Ekiti state also got a court injunction restraining the Inspector General of Police from arresting him. Former governor of Rivers State, Peter Odili also followed by getting a court order restraining the EFCC from arresting him.

Ex-parte orders have played a particularly pernicious role in our nation’s turbulent political history. It has been subject to recurrent abuse and politicization. What is basically a discretionary power of a Judge to use sparingly and in the most necessitous circumstances became almost freely available on what some have labeled the “black market”. The National Judicial Council had a particularly engaging time dealing with these forms of judicial abuses which not only spilled over to civilian rule, but continued to embarrass the judiciary as an institution, and undermine a hard-won democratic struggle. Many people have come to associate ex parte orders with prior, underhand consultation.

That is why Judges almost became frigid towards granting orders ex parte, even in patently deserving cases where human rights abuses were in question. Many judges have been known, even where life and limb were at risk, to order plaintiffs to serve the defendants with notice of proceedings and applications for injunctions even in those dire circumstances. It is not clear to many Nigerians what the exigencies were, objectively, in the Delta State case that necessitated the grant of orders reserved for situations of grave necessity, particularly given the length of time the plaintiffs had to dispute the legality of the process served on them by the EFCC, and it has often been understood that delays on the part of a plaintiff to institute proceedings will defeat any rights to the exercise of a Judge’s discretion to be heard ex parte for injunctive reliefs. Many Nigerians are now beginning to see the judiciary in rather blurred light - as active collaborators with those who have fleeced the country resources.

It is difficult to refrain, even at this stage, from passing critical commentary on the exercise of discretion by Hon. Justice Okeke. While judicial independence means that Judges must be allowed to decide their cases independent of outside influences, Judges themselves sometimes raise fears whether indeed, there have been outside influences on their decisions by the kinds of orders they have given in particular cases. The list of cases where courts are obstructing the work of anti-corruption agencies is expanding at the rate that gives room for grave concern. While it is important for government to obey the rule of law, it is perhaps of equal, if not more importance, for judges to exercise their powers in ways which promote public confidence in rule of law institutions, alongside preventing the opportunistic exploitation of the court process.

Access to Justice is concerned, without prejudging the facts, about the reputation which the growing incidence of ex parte court orders is having on the judicial branch and its officers in the light of the fight against corruption in Nigeria. The judiciary’s reputation is only just recovering from its many years of negative image standing. More recently, the judiciary has demonstrated, to popular ovation, how a robust judicial arm can significantly advance the nation’s struggle for constitutional democracy and the rule of law. “Questionable” ex parte rulings have the tendency to undermine renewed public confidence in the integrity, independence and impartiality of the judiciary. The courts were established to protect civil rights and uphold the rule of law. This function, however, should not be translated into providing a cloak of immunity for persons against whom serious corruption investigations are being conducted.

Access to Justice supports existing warnings by the NJC, that judicial officers exercise extreme circumspection before granting interim injunctions capable of causing disproportionate hardship on a party not heard. We urge the National Judicial Council to look into all such orders hitherto granted and ensure that such judicial officers were exercising their functions independently, impartially and properly. This will go a long way in strengthening public confidence in the authority and integrity of the judicial institution.

Signed

For: Access to Justice

Joseph Chu’ma Otteh                               Chinedu Yves Nwagu
Executive Director                                               Programme Attorney