The Oracle

The Oracle: The Plateau State Legislators’ Debacle: Between Law and Justice (Pt. 2)

Published

2 years ago

March 9, 2024

Eric

By Mike Ozekhome

INTRODUCTION

In the first part of this piece, we considered the background and grounds for removing legislators and posed the question: what is jurisdiction? We then examined APC’s case at the Election Tribunal after which we reviewed the consequences of determining a mater without jurisdiction. We further restated the reason why only a co-aspirant is competent to complain about primaries which produced a party’s candidate in an election. We reinstated the trite principle of law that a challenge to the conduct of a party primary ids a pre-election matter.
Today, we shall examine the following: the status of the court of appeal as the final court in legislative appeals, the refusal of the court to review the PDP law makers’ case and why the court cannot review or vary its own order made without jurisdiction. We shall also critically the plateau fiasco vis-à-vis the power of a court to review its own judgement given reasons why the Court of Appeal should have done same in the case of the Plateau state legislators. Enjoy.

COURT OF APPEAL AS FINAL COURT ON LEGISLATORS’ MATTERS

It appears that the Court of Appeal being the Court of last resort in respect of all appeals from the decisions of election petition tribunals in disputes arising from the conduct, outcome and legality of National Assembly and States House of Assembly elections becomes functus officio once it delivers its judgement and cannot reopen a matter it has pronounced upon with finality. In other words, a judgment once delivered by the intermediate court on National and State Houses of Assembly matters cannot be varied where it correctly represents what the Court decided. Nor shall the operative or substantive part of such judgement be varied or substituted. See the cases of Oyetibo & Anor v. Oyinloye (1987) LPELR-2883(SC) at 11-13. Dingyadi & Anor v. INEC & Ors (2011) LPELR 950 (SC); Udende v. Suswam & Ors (2023) LPELR-61304 (CA); and Owoo & Ors v. Edet & Anor (2013) LPELR – 22042 (CA).

THE COURT OF APPEAL’S RECENT DISMISSAL OF THE APPLICATION FOR A REVIEW INSTITUTED BY THE SACKED PDP PLATEAU LAWMAKERS

The sacked Plateau Legislators in an attempt to reclaim their lost positions in the light of the Supreme Court’s judgement in the Caleb Mutfwang case and it’s obiter pronouncement on the legislators’ injustice, filed a fresh application before the same Court of Appeal that had dismissed their appeal from the Plateau State Election Tribunal, requesting a review of the said judgement that sacked them. The appellate court however, as expected, on 28th February, 2024, dismissed the suit, describing it as a waste of judicial time, frivolous and lacking in merit. It further slammed a fine of N128 Million Naira (N8 Million per Applicant) on the already beleaguered Applicants.

BUT CAN A COURT THAT ACTS WITHOUT JURISDICTION IN THE FIRST PLACE NOT VARY ITS OWN JUDGEMENT DELIVERED WITHOUT SUCH JURISDICTION BY WAY OF A REVIEW?

The apex court had observed (on the Plateau Legislators’ case, albeit obiter), while delivering the judgment in the Governor Caleb Mutfwang appeal, that the lower tribunal and Court of Appeal erred as they acted without jurisdiction to have entertained the petitions sacking the lawmakers from the PDP over a matter bothering on internal affairs of their party. Couldn’t this issue of lack of jurisdiction as observed by the apex court have been further explored and subjected to the jurisdiction of the same Court of Appeal that delivered the judgement by way of review? Were the legislators wrong to have asked for a review? Let us have some guidance from earlier decisions of the Appellate courts. In Iteogu v. LPDC (2018) LPELR-43845(SC) 18-26, the Applicant had asked the apex court to revisit its decision concerning him which had been decided by the apex court in 2009. This application for revisitation stemmed from the fact that on the 12th July, 2013 and the 13th May, 2014, respectively, the Supreme Court had held in the cases of Aladejobi v. NBA (2013) 15 NWLR (Pt. 1376) 66, and Rotimi Williams Akintokun v. Legal Practitioners’ Disciplinary Committee that it had no jurisdiction to entertain an appeal directly from the LPDC. The Applicant’s posture in his case was that in those cases, the apex court had held that it lacked the jurisdiction to entertain appeals directly from the LPDC. He had therefore urged that there was the need to revisit his own case and declare that the decision or judgment of the apex court delivered in 2009 pertaining to him was given without vires and so set it aside and have his status restored as a legal practitioner. The apex court, per Justice Mary Ukaego Peter-Odili, JSC, while dismissing the application for review, held at pages 18 -26, inter alia, that aside the exception of the “slip rule”, the Supreme Court may only depart from its earlier decision in subsequent cases and thereby overrule itself. She emphasized that this:
“does not however mean that the previous decisions in those earlier cases differently decided would be given a new lease of life on account of this new development. The reason for this is self-evident as Oputa JSC stated in Adegoke Motors Ltd v Adesanya & Anor. (1989) 5 SCN113: (1989) 3 NWLR (Pt. 109) 250 at 274 thus:”We are final not because we are infallible, rather we are infallible because we are final.” …. In other words, the Supreme Court enjoys the finality of its decisions. Except for clerical mistakes, accidental slips, or omissions, it seldom re-visits its decisions by way of review, variation or setting aside. Once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever. The law may in the future be amended to affect future matters on the same subject, but for cases decided, that is the end of the matter.” (Emphasis supplied)
See also Anyagham v. FBN PLC (2021) LPELR – 55905 (CA); Emezie & Ors v. Linus & Anor (2016) LPELR – 40514 (CA); and Onuh & Anor v. Ogbe (2019) LPELR-48361 (CA).

THE PLATEAU LEGISLATORS’ FIASCO

In the light of the above judgment of the Supreme Court, was there no remedy for those legislators who were wrongly sacked by the Court of Appeal? It is important to note that 22 PDP members in both chambers of the Nation’s and Plateau State Legislature were sacked by the Election Tribunals and the Court of Appeal, a development that left tongues wagging and ruckus generated across Nigeria. The legislators affected included two Senators – Simon Mwadkwon and Napoleon Bali; four members of the House of Representatives – Dachung Bagos, Beni Lar, Isaac Kwalu, and Peter Gyendeng Ibrahim; and 16 members of the Plateau State House of Assembly. They were all in PDP. Their constituents overwhelmingly voted for them. But the tribunal, supported by the Court of Appeal, felt otherwise. They took away the legislators’ victories and donated same on a platter of gold to the APC legislators who were roundedly trounced at the polls. The Plateau State people’s votes were rightly counted but the courts refused to make the votes count. This is what I have termed “Judocracy” in my OZEKPEDIA neologism, “as a genre of government practised only in Nigeria, where Presidents, Governors, Legislators and LG Chairmen are thrown up as having ‘won’ in an election. Their victory is immediately challenged. They get enmeshed in these legal calisthenics for the next 2 to 3 years of their corruption-ridden governance. Then, suddenly, they are conceived, incubated and delivered in the hallowed Chambers and precincts of our law courts, rather than through the ballot box. The will of the people is thereby subsumed in the decision and judgement of courts of law, the non-representatives of the people”. (https://www.youtube.com/watch?v=Yg8ByKVWWj)

SHOULD THIS PLATEAU STATE LEGISLATORS’ DEBACLE HAVE BEEN ALLOWED TO THRIVE UNREMEDIED?

Our case laws are decided based on precedents. Precedent is retrospective and ensures that a given posture is maintained even at the risk that harm may be caused by it.

The apex court in the Mutfwang’s case noted (albeit, by way of obiter), that the Court of Appeal was wrong when it sacked those legislators lawfully elected under the platform of the PDP, as it lacked jurisdiction to do so. However, precedent is saying, “Yes, we admit that there was an error. Nothing can be done about it.” I humbly disagree with this perpetuation of injustice under the thin guise of “my hands are tied”, or “that nothing can be done about it”. Surely, something can be done about it. I agree with Emmanuel Agim, JSC, when he noted in his judgement that, “it is high time the legal profession woke up before it became irrelevant”. This admonition is in tandem with the admonition of venerable Justice Chukwudifu Oputa (JSC), in Adegoke Motors Ltd v. Adesanya & Anor (1989) 3 NWLR (Pt. 109) 250 at 274, 275, to the effect that “When therefore it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision be overruled”. I also find solace in the complimentary and immortal words of Lord Denning in PARKER V. PARKER (1954) 2 All ER 22, where he illuminated thus:
“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both.”

Afterall, law is but a mere handmaid to deliver justice, which is why “ubi jus ibi remedium” (Bello v. AG Oyo State (1986) 5 NWLR 820). Going by this, I humbly submit that when it comes to the critical issue of the court deciding a case in which it lacked jurisdiction in the first instance, then certainly, such a court has jurisdiction to revisit the said judgement and review it under certain laid down conditions. This is not a blanket or open-ended cheque for exhumation of buried cases. No.

A COURT CAN REVIEW ITS JUDGMENT

Thus, by reason of a long line of decided cases by the Supreme Court itself, a court has the constitutional power to enforce, review or set aside its own judgements under special circumstances as provided for by law. This is not tantamount to the court sitting on appeal over its own judgements. In Stanbic IBTC Bank Plc v. L.G. C. Ltd (2020) 2 NWLR (Pt. 1707), pp. 17-18, paras. D-C, the Supreme Court, per Abba Aji, JSC, held that the court has the power and leeway to set aside its own judgement and rehear a case, inter alia, under the following circumstances:
“…where any of the other parties obtained judgement by fraud or deceit…. When judgement was given without jurisdiction…”.

WHY THE PLATEAU STATE LEGISLATORS’ JUDGEMENT OUGHT TO HAVE BEEN REVIEWED BY THE COURT OF APPEAL

Surely, the judgement in the Plateau Legislators’ matter was dubiously obtained as there was no disobedience to any court order at all as rightly found by the Supreme Court in the sister Mutfwang case. All the cases had emanated from the same facts and circumstances. Secondly, both the Election Tribunal and the Court of Appeal lacked the requisite jurisdiction to have entertained the Legislators’ case the way they did in the first instance.

The reason or rationale behind this position in the above Stanbic IBTC case was graphically painted by Oputa, JSC, in Adegoke Motors Ltd v. Adesanya & Anor (1989) 3 NWLR (Pt. 109) 250 at 274, 275, inter alia, thus:
“We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings, capable of erring. It will certainly be shortsighted arrogance not to accept this obvious truth. It is true that this court can do inestimable good through its wise decisions, similarly, the court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision be overruled. This court has the power to overrule itself (and had done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.” (Emphasis supplied).
Thus, where a judgment of a court was obtained without jurisdiction; or is tainted with illegality; or was obtained by fraud, the court surely has the vires, constitutional power and jurisdiction to revisit such judgement, even if time had since elapsed. This is because time cannot and does not run against illegality or fraud. A party cannot be allowed to benefit, or continue to benefit from the product of its own illegality and void conduct. This position was emphasized by the Supreme Court in Nwosu v. APP & Ors (2020) 16 NWLR (PT 1749) 28, where it held thus, through many of its justices as follows:

Per Eko, JSC: “No person is allowed to benefit from illegality as illegality confers no right”

Per Peter-Odili, JSC: “It is difficult in the light of the damming facts well pushed in this appeal wherein illegality was enthroned to be surveyed into endorsing of such acts and to allow the perpetrator of such profane acts to derive or profit from his own wrong.”

Per Amina Augie, JSC: “The court cannot close its eyes to it (illegality) and allow itself to be used as a tool to perpetuate illegality, in whatever form or guise”

See also the cases of GTB V. Innoson (Nig.) Ltd (2022) LPELR-56657 (SC); Enterprise Bank Ltd v. Aroso & Ors (2015) LPELR – 24720 (SC); Oladosu & Anor v. Olaojoyetan & Anor (2012) LPELR – 8676 (CA) and Eco Bank v. Teak Naturale Investment Ltd & Ors (2017) LPELR – 42389 (CA).

The Court of Appeal which was approached by the grieving PDP Legislators sure had the power and jurisdiction to have calmly looked at and reviewed its judgements which have since been irretrievably punctured by the Nigerian people and the apex court itself (albeit, obiter). It should have meticulously reviewed its earlier judgements, all of which were delivered without following judicial precedents as laid down by the Supreme Court on the very issues dealt with in those appeals. Law is about justice. Being Siamese twins, one without the other is an orphan. The Plateau Legislators’ cases hallmarked a dangerous precedent where neither the law nor justice was followed or attained. The Court of Appeal ought to have seized the opportunity of the fresh application to correct itself. If for nothing else, at least for the sake of posterity, justice, fairplay, equity and good conscience. I so humbly submit.

(Concluded).

The Oracle

The Oracle: The Independence of the Judiciary in a Democratic Dispensation (Pt. 4)

Published

7 days ago

July 10, 2026

Eric

Prof Mike Ozekhome SAN

Introduction

In the last part of this intervention, we examined the abuse of ex-parte orders as part of our survey of the independence of the judiciary. We then moved on to political pressures exerted on the judiciary. We continues with this theme today and extend economic/fiscal pressures which undermines judicial independence. We shall also x-ray the intellectual dimensions of the judicial remit as well as the relevant legal codes for their appointment. Come with me.

POLITICAL INDEPENDENCE (continues)

The duty of maintaining a Judiciary that is free from political influence, an independent and impartial Judiciary in line with section 17(2)(e) of the 1999 Constitution, rests on the honourable men and women on the bench, the political class, the other two arms of government and all and sundry. An independent Judiciary that inspires confidence is a sine qua non for sustainable democracy. Judges have a special role to reject any attempt to undermine the independence of the Judiciary in this dispensation. It is sacred! The admonition of Hon. Justice (Prof.) A.F.D. Kuti in this wise is instructive.

“Of course, judges make laws by interpretations, as judges, by nature and training do not succumb to partisan considerations they are political, they should be abstinat a fabia. They must not allow themselves to be torn apart by any form of differences in our societies… The judges have a duty to chart an independent course and let it be known that the independence of (the) judiciary is of vital importance to the democratic process to maintain Human Rights Provisions and to maintain the non-adoption of sate Region… The Judiciary itself must be like Cinderella living in a glass house, above board like Caesar’s wife, also above suspicion”.

Economic/Fiscal Independence

It is a trite warfare strategy that the easiest way to weaken an army and overrun it is to cut off its supplies and starve it. Vital in the question of independence of the Judiciary is the issue of fiscal autonomy, and proper funding. As soon as we institutionalize the practice of judicial officers going cap in hand to beg for funds from the Executive, the idea of independence of the Judiciary has been trampled upon and blown into smithereens! Independence must involve economic ‘self-reliance’ and fiscal autonomy. By these, we mean that the Judiciary under this dispensation should always be able to have the funds due to it constitutionally falling directly to it without having to approach the Executive for any form of lobbying before funds can be released to it. The Constitution has substantially taken care of this area. It only remains for the frontiers of fiscal autonomy to be widened so that the Judiciary, (especially State Judiciaries) would be able to carry out capital projects so as to maintain befitting physical infrastructure for the Judicial institution. Agbakoba has argued that:

“Judicial Independence is meaningless if it is not accompanied by economic independence. Dishonest judicial staff has no credible claim to judicial independence. It is necessary to take steps to ensure that judges and magistrates can enjoy a professional status capable of guaranteeing them the required amount of professional independence coupled with an adequate remuneration package that can effectively isolate them from pecuniary pressures.”

In Nigeria and under this democratic dispensation, some jurisdictions have had to contend with dilapidated office buildings, inadequate supplies and regular power outages. Starvation of funds is a weapon used by the Executive, the keeper of the Federation purse, to achieve a balance of judicial power by giving judicial officials a sense of economic/fiscal dependency.

To stave off starvation of funds, many countries have had to increase budgetary allocations significantly in favour of the judiciary both to provide adequate physical facilities and to allow for the continuing education of judges, magistrate and their staff. In some cases, as in Madagascar, this new approach has resulted in the establishment of a school solely dedicated to the training of judicial personnel.

The poor state of fiscal ability of the Judiciary in Nigeria today aptly depicts the observation of the Federalist, Alexander Hamilton that:

“The Judiciary is beyond comparison the weakest of the three departments of power. It has no influence over either the sword or the purse; no discretion either of the strength or the wealth of the society; and can take no active resolution whatever. It may be said to have neither FORCE NOR WILL, but merely judgment.”

Although the salaries and recurrent expenditures of the Judiciary are constitutionally charged upon the Consolidated Revenue Fund, it does not appear that the Constitution specifically ensures the provision for the capital expenditure of the Judiciary. This is another ploy to still keep the Judiciary low and check its ferocity in holding the balance over government excesses. There are other pockets of ploys and half-truths.

It has, for example, been argued from the Bench that the concept of accountability has often been relied upon to justify restricting the administrative independence of the Judiciary. The Executive must, in this democratic dispensation, allow unfettered fiscal independence for the judiciary by freeing its funds from all restrictions so that judges do not have to continue to go to the Executive to seek for funds for capital projects and recurrent expenditure or extra budgetary expenses.

Judicial accountability, in fact, complements and reinforces judicial independence by creating the public confidence on which judicial independence ultimately depends. There is no gainsaying that the point is sometimes made that in relation to their judicial functions, judges are subject to a higher degree of accountability and transparency than any other public officers, or even with the present democratic dispensation, than indeed any holder of political office, be they ministers or special advisers or chairmen or members of parastatals.

It has also been argued from the Bench that financial independence of the Judiciary can only be guaranteed where the ‘order’ allows physical projection and administrative control of finances by officers accountable to the Judiciary.³⁹ The notion of Independence of the Judiciary would remain mere rhetoric without complete fiscal autonomy for the Judiciary.

Intellectual Independence

This subhead is used here in a technical sense as an issue of judicial independence. But, it can best be described by the story in the Bible of Israel’s sojourn in the land of Egypt. A wicked king that hated the Hebrews and was afraid of their independence and prosperity had given an instruction to midwives in this manner,

“When ye do the office of a midwife to the Hebrew women….if it be a son, then ye shall kill him but it if be a daughter, then she shall live…Every son that is born ye shall case into the river, and every daughter ye shall save alive.”

Pharaoh preferred Hebrew females because he was afraid of male power in the event of war with the Hebrews. The same stratagem has been employed to destroy the intellectual vibrancy of the judiciary so as to weaken its independence. The calibre of judges that can stand their ground against assault on judicial independence are those imbued with high independent, incorruptible and analytical mind laced with profound intellectual fecundity. While the High Court Bench has a mixed multitude of judges, the Court of Appeal and the Supreme Court are filled with such high calibre of intellectually vibrant and independent-minded justices. This would explain why the Court of Appeal and the Supreme Court have not only set impressive records of independent-mindedness and incorruptibility. Those two courts can hardly be faulted in the area of independence and absence of external influence. The problem of intellectual freedom mainly lies at the High Court Bench, and the lower benches.

Appointment

By virtue of section 250(3), 256(3) and 271(3) Constitution of the Federal Republic of Nigeria 1999, a person shall not be qualified to hold office of Chief judge or a judge of the Federal High Court, Chief Judge or a judge of the High court of the Federal Capital Territory and a judge of a High Court of a state, respectively:

“Unless he is qualified to practise as legal practitioner in Nigeria and has been so qualified for a period of not less than ten years”.

We are not really concerned here about the procedure for appointment of High Court judges. What has threatened the system with collapse is the bare assumption in these constitutional provisions that tends to imply that once a person has spent ten years on earth since he/she was called to the Bar, the person automatically has all the intellectual capability to be appointed a judge.

More than anything else, judicial incompetence (encompassing law intellectually, law productively etc) has contributed to rob the Judiciary the necessary intellectual freedom it needs to assert and guard its independence. According to Schewart:

“The quality of justice….depends more upon the quality of the men who administer the law then on the content of the law they administer.”⁴¹

In his keynote address at the recent Bar Conference at Enugu, Chief Afe Babalola, SAN, observed on the constitutional qualification for appointment as a judge as follows:

“This allows great latitude for the appointment of ‘any lawyer’ who has met the ten years requirement regardless of where he is prior to his appointment. This explains why a new wig from the Nigerian Law School who, immediately after his call (and probably Youth Service) went straight to work in a company, multinationals and the life without any experience whatsoever in practice could be and are being appointed as High Court Judge”.

At the swearing in of the new Senior Advocates of Nigeria on Monday, September 8, 2003, the Honourable Attorney-General of the Federation and Minister of Justice, Chief Akin Olujinmi, SAN hinted that more stringent criteria for appointment of judges would be introduced. According to the Chief Law Officer of the Federation:

“We will propose that only those who can furnish evidence of contentious cases they handled in the Supreme Court, Court of Appeal and the High Court within, say, three years preceding their application should be considered for appointment. By so doing, it will be possible to select only seasoned practitioners to occupy positions on the Bench.” (To be continued).

Thought for the Week

“I believe that an independent judiciary is the crown jewel of our constitutional republic. Brett Kavanaugh”. (Charles Evans Hughes).

The Oracle

The Oracle: The Independence of the Judiciary in a Democratic Dispensation (Pt. 3)

Published

2 weeks ago

July 3, 2026

Eric

By Prof Mike Ozekhome SAN

Introduction

Another public outrage attended the ex parte order granted by a Lagos High Court against the Nigeria Labour Congress (NLC) restraining it from calling out workers on a planned nationwide strike to protest the hike in price of petroleum products by the Federal Government. An Abuja High Court had refused the application because there was no genuine case of urgency. The Federal Government went down to Lagos and surprisingly a Lagos High Court, which had co-ordinate jurisdiction with the Abuja High Court granted the order. The NLC president, Adams Oshiomhole had to tell the whole world that the order was not binding on the NLC as it was obtained from the “Black market”. The strike went on as planned and the image of the Judiciary was worse off and its independence seriously put in question.

Another controversial ex-parte order was that made by a judge in the Abuja Division of the Federal High Court restraining the governor of Anambra State Dr. Chris Ngige from parading himself as governor. The order (which, apart from the questionability of the perceived extreme urgency attending it) could not be reconciled with the state of immunity enjoyed by the governor under the Constitution. The governor had to borrow the “Black market” appellation from Oshiomhole. Even more controversial and outrageous ex parte orders were dished out by the same court on the Anambra crisis alone.

At the heart of the issue of abuse of ex parte orders (especially in political issues) is the attendant erosion of public confidence in the independence and impartiality of the Judiciary. The ugly implications were rightly summed up by a writer as follows:

“In these instances of judicial recklessness, there was always the palpable belief that unseen hands moved the court to issue such controversial ex parte orders. That is the meaning of the ‘black market’ reference made by Oshiomhole and Ngige. None of them was prepared to obey a ‘black market’ order obtained outside the ‘official market’! They never obeyed and nothing happened!

Abuse of ex parte injunction aside from the grave implications it has on the independence of the Judiciary, is also capable of wide scale socio-political disaster as was the case with the annulment of the June 12 Presidential Election. The Judiciary set the key note of the disaster that followed when an Abuja High Court presided over the late Hon. Justice Bassey Ikpeme made an ex parte order restraining the conduct of the presidential election.

In the popular case of Kotoye V C. B. N 24 the Supreme Court settled the principles governing the grant of ex parte injunctions. Principally, the order can be made,

When there is a real urgency but not a self-induced or self-imposed urgency.
Where it is necessary to preserve the res which is in danger or imminent danger of being destroyed, and
Where there is a real impossibility of bringing the application for such injunction on notice and serving the other party.

When these factors are inapplicable, a wise judge that imbibed good judicial milk would exercise his/her discretion by turning down the application and asking the applicant to put the respondent on notice. The institution has always stood against the menace of this abuse over the years. The former Chief Justice of Nigeria, Hon. Justice Mohammed Bello once bemoaned,

“indeed, there is urgent need among some of us, the judges, to appreciate that ex parte injunction which was devised as a vehicle for the carriage of instant justice in proper cases should not be converted into a bulldozer for the demolition of substantial justice, we should all realize that justice should be done to public functionaries and public institutions.

It has also been reiterated that lawyers equally have a role to play in the war against abuse of ex parte injunction. In this direction, the Hon. Justice C. P.N. Selong opined thus:

“In as much as the speech of the learned Chief Justice was directed at judges, I beg to opine that the same caution should apply to legal practitioners, after all both judges and legal practitioners are Ministers in the Temple of Justice. It is my humble view that an honest lawyer who abides by the ethics of the profession should not bring an application which is manifestly unjust”.

The need for restraint from both the Bench and the Bar on the issue was reiterated at the Annual Bar Conference, Enugu by the then Chief Justice of Nigeria, Honourable Justice Mohammadu L. Uwais, who counseled thus:

“I think it is not out of place to appeal to legal practitioners at large to exercise more restraint in and desist from advising their clients to bring absurd applications to court for ex parte injunctions. You will agree with me that unless such applications are brought, the inconsiderate and reckless judges amongst us will not find the opportunity to embarrass the judiciary and the profession in general’’.

It must be noted, that it is not in all cases where a judge grants an order perceived to be wrong that an actual case of influence arises. However, the perception of the public about justice is important – whether such perception is rightly or wrongly placed. This is because the standard of justice has always been objective: based on the notion of the reasonable man. Justice must not just be done, but manifestly be seen to be done. As one writer aptly put it:

“The role of the Judiciary in maintaining socio-political order cannot be compromised and once the citizen believes that somebody, other than the law and his judicial conscience, tells the judge what to say or do, then, the dangers of a system break down and institutional failure becomes real”.

Accordingly, the resolve of the National Judicial Council (NJC) to henceforth deal with judges who grant ex parte orders with recklessness cannot but be supported and encouraged. Charity begins at home. The filthy Augean stable must be cleansed.

We have concentrated on the issue of in-house cleaning by the Judiciary itself because we realize that the most ready and devastating blow to the independence of the Judiciary in the mind of the public is usually struck by the inability of some of the judges themselves to conduct the affairs of the Bench so judicially and judiciously as to inspire public confidence in their independence from external influence. Even some lawyers themselves fall into the league of those members of the public who doubt the independence of the Judiciary on the ground of questionable judicial orders. In this regard, Uche Onyegorocha, a lawyer and member of the House of Representatives while responding to a question from the press on the unpopular pronouncements of a Federal High Court judge, said:

“I see undue influence in the whole process. I see a person that is not acting independently. Like I said earlier I see people playing the drum for him in the bush and he is dancing on the street”.

But beyond the question of conduct of the members of the Bench in handling cases brought before them are more technical and political issues of political, economic/fiscal and intellectual independence. These we shall presently address.

POLITICAL INDEPENDENCE

The Judiciary ought to be apolitical in a democratic dispensation to safeguard its independence. Accordingly, judges should not only be free from political affiliation, but the system should be organized in such a manner as to ensure that a judge does not give a decision biased in favour of a political party, especially the ruling party. Accordingly, Nwabueze identified two forms of judicial involvement in politics (i.e organized politics) as:

decisions biased in favour of a ruling party, and
judicial membership of political parties.

It is submitted that Nigeria’s adoption of multiparty democracy is healthy for the protection of the ‘political independence’ of the Judiciary. The term ‘political independence’ should be understood to mean the freedom of the Judiciary from having any form of political influence exerted ion it as to undermine its independence from any individual, group or another arm of government. Nigeria should strive to refuse any attempt to reduce the country into a one-party democracy since the political independence of the Judiciary would obviously be difficult to be achieved therein. The concept of an apolitical judge is utopian in a one-party system. According to Mr. Justice Georges, a former Chief Justice of Tanzania,

“The concept of the judge as neutral, belonging to no party in the multiparty democracy, can have no meaning …. Where there is one party”.

It has been argued that the involvement of the Executive in the appointment of Judges undermines the imperatives for the freedom of the Judiciary from political influence. It is however, our view that the system of appointment under the Constitution is the best we can have at present. If more caution is employed in the appointment of judges, no problem of want of independence would be posed by the appointment method. Nigeria is not yet ripe for election of judges or else the system would be thoroughly polluted by politics. (We shall look at the issue of appointment of judges subsequently).

Indications that a cross section of Nigerians believe that a section of the Judiciary might have compromised their judicial oath can be gleaned from this passage from a major national daily:

“The Chief Justice of the Federation, from indications, prefers his colleagues to stand above the fray of Nigeria’s turbulent political process. This position may have been informed by the ignominious role played by the judiciary in the country’s chequered political history. But despite the goodwill enjoyed by the judiciary due to a mature handling of suits, that sought to stop the recent general elections, the (sic) a section of the bench may have unwittingly placed this third arm of government in the dock”. (To be continued).

Thought for the Week

“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution” – Charles Evans Hughes

The Oracle

The Oracle: The Independence of the Judiciary in a Democratic Dispensation (Pt. 2)

Published

3 weeks ago

June 26, 2026

Eric

By Prof Mike Ozekhome

Introduction

Last week we commenced this series with some operational definitions, today we shall continue and conclude on the definitions and take a critical look at some cases – their good parts, deficiencies and worst case scenarios. Read on.

Definition of Terms (continues)

During the colonial and military regimes, the Executive always attempted to undermine the Judiciary, erode its independence and powers of coercion and have a field day with illegality and impunity. On those occasions, the Judiciary always stood up courageously to uphold the rule of law. In Eshugbayi Eleko Vs. Government of Nigeria the Judicial Committee of the Privy Council declared null and void and of no effect whatsoever the deportation of the Oba of Lagos from his domain to an entirely different part of Nigeria on the ground, inter alia, that the Governor had no such power inspite of the fact that the Governor was then vested with both executive and legislative powers. It held:

“No member of the executive can interfere with the liberty or property of a subject except on the condition that he can support the legality of his action before a court of justice.”

In Lakanmi & Another Vs. A-G, Western State, the Supreme Court courageously declared null and void Edict No. 5 of 1967 promulgated by the Western State Government and Decree No, 48 and 45 of 1968 promulgated by the Federal Military Government, on the ground that they were ad hominem legislations. The legislations dealt with forfeiture of assets. The Supreme Court held that the 1963 Constitution clearly provided for separation of powers between the Judicial and the Executive and that Decree No. 45 of 1968 was a clear usurpation of the Judicial powers of the courts. Chief Rotimi Williams has then argued that the Decree which named specific people and confiscated their property were ad hominem and unconstitutional. The Supreme Court held that the legislations amounted to judicial rather than legislative acts and struck them down. In reply, the Federal Military Government of General Yakubu Gown promulgated Decree No. 28 of 1970 to undermine the Judiciary. The Decree was audacious and even brutal in its title: “The Federal Military Government (Supremacy and Enforcement of Powers Decree No. 28 of 1970.” The Decree restated the sacredness and unquestionability of any Decree or Edict promulgated or purported to be promulgated by the military government. But the Adetokunbo Ademola-led Supreme Court at the time was not intimidated.

In Governor of Lagos State Vs. Ojukwu Kayode Eso,JSC emphatically declared that:

“Under the Constitution of the Federal Republic of Nigeria, 1979, the Executive, the Legislature (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the constitution to these organs by Section 4 (Legislative Powers), Section 5 (Executive Powers) and Section 6 (Judicial Powers) are classified under an omnibus umbrella known under part II to the Constitution as Powers of the Federal Republic of Nigeria’. The organs wield those powers and one must never exist in sabotage of the other or else there is chaos, Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers, to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the constitution it is to uphold. Executive lawlessness tantamount to a deliberate violation of the constitution.”

There are many cases decided during the military era and under democratic environment that underscore the relentless efforts by other arms of government, especially the Executive to erode the independence and vibrancy of the Judiciary as a way of expanding their own frontiers of influence, unquesitonability and impunity.

Since the Executive has considerable (if not total) influence over the wealth of the State and over the appointment of Judges, it continuously seeks to make the Judiciary dependent by starving it of funds and by influencing the enthronement of mediocrity on the Bench. Issues in independence of the Judiciary may thus be broadly classified into three, viz, political independence, economic independence and intellectual independence. Before looking at these issues in detail, we may take a look at the face of Nigeria’s Judiciary so that the issues can simultaneously be matched with the ease.

The Case (The Good, The Bad, The Ugly)

“Since I made the order of the remand of the accused person last Thursday and up till about 10 minuets before I sat this morning, I have been under untold pressure and threat from many quarters urging me to arrive at a particular decision ever before I listen to the accused. Let me make it that as a Muslin, the teaching of my religion is clear about death being the ultimate. I am therefore not bothered about any such threat. I am, however, worried about the untold pressure coming, as it were, from unexpected quarters… To continue with this case will…..be a breach of the solemn pledge I made when I became a judge (i.e) to administer justice without fear or favour and without ill-will or affection. In view of the foregoing, I hereby remit this case file to the honourable chief judge for re-assignment to another judge.”

In this way, Honourable Justice Mashood Abass of the Oyo State High Court washed his hands off, like Pontius Pilate, of the trial of Otunba Iyiola Omisore and other accused persons standing trial for the murder of Late Chief Bola Ige, SAN (Slain Attorney-general of the Federation). After the controversial withdrawal of the judge, allegations of undue pressure, bribery, arm-twisting tactics, threats and promises directed against the judge inundated the media.

Before, the breaking of this unpalatable story, a sordid allegation of bribery had been trailing the Election Tribunal that sat in Akwa Ibom State over the petition of Dr. Imeh Umanah, against the election of the then incumbent governor, Obong Victor Attah.

In Enugu State, matters came to a head when an Election Tribunal had to relocate to Abuja to complete its job after alleging that Enugu State was no longer safe for its honourable members. These are bad times for the Judiciary!.

But in Anambra State, the State Chief Judge, Honourable Justice C. J. Okoli proved to be a pride of the Judiciary when he smartly ‘made himself unavailable’ during the July 10, 2003 abduction of the governor of Anambra State, Dr. Chris Ngige by his political enemies. The House of Assembly had passed a motion asking the Chief Judge to swear in the Deputy Governor as incumbent governor, but the Chief Judge was not available to carry out the resolution. By that act, his lordship saved the Judiciary from being enmeshed in the dirty politics of the state, which almost consumed the other arms of government.

More than any other factor, the abuse of ex-parte injunction by some judges has immensely contributed to the erosion of public confidence in the Judiciary under this democratic dispensation. Most of the ex parte orders granted under controversial circumstances involved situations where the Executive was either the direct beneficiary or had an interest which the public believed (rightly or wrongly) the Judiciary merely ‘co-operated’ to protect. This perception is a dangerous omen for independence of the Judiciary, because the Justice must not only be done but must be manifestly seen to have been done.

During this democratic dispensation, an Abuja High Court granted an ex parte order stopping the national convention which of the All Nigeria Peoples Party (ANPP) when preparation for the convention had already gulped millions of naira and party members had already converged at the venue in Abuja. Most Nigerians did not believe that the Judge was not acting in the interest of the rival ruling Peoples Democratic Party (PDP) given the controversial and damaging circumstances under which the order was made. The resulting outrage cost the judge his job.

Another, Abuja High Court made an order restraining the National Assembly from further deliberating on a bill before it to amend the Independent Corrupt Practices and other Related Offences Act 2000. The Executive was interested in killing the bill. The order was made in defiance of the trite principle of the doctrine of separation of powers which precludes the courts from assuming jurisdiction over a bill that has not become law. In articulating the position of the Court of Appeal on the question of Judicial interference in the law making process purportedly under section 4(8) of the 1999 Constitution, Hon. Justice Mamman Nasir, P. said:

“though the courts have been given very wide powers under the subsection, the intention is not to authorize the Judiciary to interfere with the legitimate exercise of the powers of the legislature or the procedure to be followed in such exercise at power given to the courts comes into action after the legislature has enacted the law…”.

A similar controversy trailed the ex parte order given by the same Abuja Federal High Court which directed the Independent National Electoral Commission (INEC) to issue a certificate of return to Chief Adolphus Wabara (PDP) as Senator representing the Abia South Senatorial Zone. INEC complied (apparently reluctantly) and Wabara became the president of the senate the next day. The source of the controversy was that INEC had earlier declared Elder Dan Imo (ANPP) as the winner of the seat. As Ogbham-Emeka, a counsel in Mike Ozekhome’s Chambers observed about the controversy in ThisDay Law,

“The question how the Abuja Federal High Court assumed jurisdiction over the matter and how the issue became one suitable for an ex parte order raked up a lot of dust. When the dust subsided not a few people concluded that it was the court and not the electorate that gave Senator Wabara the Abia South Senatorial ‘mandate’. But that was not to be the end of the regime of such demonstrable judicial anarchy that force litigants to choose which court order to obey and which not to obey, a situation that spells doom for a regime of law and order”. (To be continued).

Thought for the Week

“A functioning, robust democracy requires a healthy, educated, participatory followership and an educated, morally grounded leadership”. (Chinua Achebe).