THE ADVOCATE WITH ONIKEPO BRAITHWAITE
Upgrading our Judiciary
In considering Judicial reforms, apart from implementing better working conditions for our judicial officers and increasing the budget of the Judiciary – if the Judiciary is to become up-to-date like its contemporaries in some other jurisdictions, the courts have to be physically upgraded; the Judiciary obviously has to massively embrace modern technology (for recording court proceedings instead of taking notes in long-hand, virtual proceedings, online filing of court processes and so on); and certainly, investment in technology, comes at a cost. So, talk of cutting the Judiciary’s necessary and inadequate budget should not arise, when there are many other areas where the cost of governance is exorbitant and unnecessary, and yet, and has not been cut.
A Judge once told me that when they travelled to an Asian country for a judicial retreat, they were taken to their rest rooms during the tour of the court premises. He said a person could have comfortably sat down to eat a meal, in any of the public restrooms within their court premises. Ours, on the other hand, usually have no running water, and you literally have to hold your nose and breath when walking past any rest room, to protect yourself from the stench! In the case of our own courts, it’s best to go on a dry fast prior to your court appearance, so that there will be absolutely no reason to hear, let alone have to answer the call of nature when appearing in any court! Ebun Adegboruwa, SAN, felt so strongly about it, that he made a pledge to God to construct new toilets at the Federal High Court, Lagos; a pledge which he has since redeemed.
Our judicial officers at all levels, must be able to travel to more advanced jurisdictions on judicial retreats whenever possible, to see what their contemporaries are doing, learn and cross-pollinate. All this costs money, and it is money well spent, because the courts have always been seen to be the last hope of the common man. We need judicial officers to be able to administer justice comfortably, and not irritably, taking out their frustrations on litigants and counsel!
Abuse of Court Process
But, hand in hand with all that upgrade, there must also be an upgrade in the level of responsibility and comportment on the part of all judicial officers, which is expected of those holding such exalted positions. My following comments, are with all due respect to all the judicial officers who comport themselves with the requisite respect and dignity, and do not engage in any unwholesome practices, including the abuse of court process – they are much appreciated, commended and obviously, excluded from these submissions.
Forum Shopping and Multiplicity of Actions
The issue of judicial officers allowing forum shopping and participating in it with gusto and aplomb, must stop. It is embarrassing when the public hears that courts of concurrent jurisdiction are giving conflicting rulings on exactly the same cases, with more or less the same parties on the same subject-matter. I always feel somewhat ashamed, when non-Lawyers question me about it! Participating in Forum shopping, for one, shows partisanship on the part of judicial officers who are meant to be objective and fair; and worse still, it shows that they have thrown caution to the wind, breached their oath of office, and descended fully into the arena.
Sadly, such behaviour which should normally be unheard of in our court system, has been rearing its ugly head more than occasionally, especially when it comes to political cases. And, the fact that some of those cases are so celebrated that no judicial officer in Nigeria can feign ignorance of their prior existence before taking them on, is irrelevant on the part of those who hear abusive matters. This type of behaviour must be discouraged and sanctioned, not just on the part of counsel as the NBA (Nigerian Bar Association) has done to some of its erring members, but also on the part of judicial officers who engage in this unwholesome practice, by the NJC (National Judicial Council). Judicial officers found guilty of partaking in forum shopping cases, can be demoted in terms of hierarchy, for example, from Court 8 to Court 11 and so on, depending on the gravity of their misdeed. This will go a long way in discouraging this bad practice, as I doubt that anyone would want to lose their seniority and ranking.
It is an abuse of court process by the litigants (probably on the advice of their counsel), their counsel and the judicial officers who engage in it. If such matters are immediately dismissed by serious judicial officers and costs awarded against litigants for such abuse; and counsel may also be sanctioned by the Legal Practitioner’s Disciplinary Committee of the NBA, why should erring judicial officers go scot free, when they are also guilty of the same abuse by entertaining abusive matters which they have no jurisdiction to?
In Ibori v F. R. N. 3 N.W.L.R. Part 1128 Page 283 at 320, Amina Adamu Augie, JCA (as she then was) defined ‘Forum shopping’ thus: “when a party attempts to have his action tried in a particular court or jurisdiction, where he feels he will receive the most favourable judgement or verdict”. It is an improper use of the court process. See the case of Minister for Works v Tomas (Nigeria) Ltd 2002 2 N.W.L.R. Part 752 Page 740 at 785. In Okorodudu v Okoromadu 1977 3 S.C. 21, the Supreme Court cited the institution of a multiplicity of actions on the same subject-matter, against the same opponents on the same issues, before one or more courts of competent jurisdiction, as an example of an abuse of court process.
Comrade Adams Oshiomhole’s Abuse of Court Process
I recall some cases that were heard earlier this year, involving the former Chairman of the All Progressives Congress (APC), Comrade Adams Oshiomhole, upon his suspension from his Ward 10 Etsako local government area of Edo State; the decision to suspend him was ratified at the Ward, Local Government and State levels of the APC; accordingly, on March 4, 2020, a Federal High Court in Abuja on the institution of an action against him, ordered his suspension as Chairman of the Party.
The next day, March 5, another division of the same Federal High Court, this one sitting in Kano, then purported to issue a counter-order, that is, an interim order halting Adams Oshiomhole’s suspension as Chairman of APC. This is a classic case of abuse of court process, as the issue of Oshimhole’s suspension had already been decided upon by the Abuja court. The proper step open to Adams Oshimhole to take on the issue of his suspension, would have been to file an appeal against this decision at the Court of Appeal, as a court of concurrent jurisdiction certainly did not have the jurisdiction to entertain the matter again. It is trite that, a court cannot sit as a court of appellate jurisdiction over its own judgement. And, since it was a case that was already in the public space, the Kano Judge could not have claimed that he was unaware of it. He should therefore, have dismissed the matter immediately for being an abuse of court process. And, even if there were other issues which were subsequently freshly raised in the Kano case (that had not been raised before), they could easily have been consolidated and heard with the matter in the Abuja court.
It was however, obvious that the reason for Oshiomhole’s forum shopping all the way to Kano, was that he knew that he would receive a more favourable outcome there, which he did! See Ibori v F.R.N. (Supra). This kind of reprehensible behaviour not only casts aspersions on the integrity of the Judiciary, but lowers its estimation in the eyes of the public. It shows how extremely desperate most of our Politicians are; whether they ruin the court system or not – they couldn’t care less, as long as they win, by hook or by crook. But, surely, officers in the temple of justice, that is, counsel and judicial officers, should not be seen as collaborators in the abuse of court process, encouraging such bad behaviour.
Other Types of Abuse of Court Process
While other issues also constitute abuse of court process, the issue of multiplicity of actions seems to take centre stage! Central Bank of Nigeria v Ahmed & Ors 2001 1 1 N.W. L.R. Part 724 Page 369, where the Apex Court summarised ‘abuse of court process’ to mean that “the process of the court has not been used bona fide and properly”. See Saraki v Kotoye 1992 9 N.W.L.R. Part 264 Page 156 at 188 per Karibi-Whyte JSC.
Where a court process raises no reasonable cause of action, and is founded on frivolity or recklessness; it also constitutes an abuse of court process – per Niki Tobi JSC in Ntuks v NPA 2007 13 N.W.L.R. Part 1051 Page 392 at 419-420. Initiating law suits with malice, or simply to harass or frustrate opponents; or to delay the inevitable which should rightfully happen from happening; or trying to maintain an action with no law to support it; or one that the claim is rife with falsehood; going on interlocutory appeals on issues which can be taken with the main appeal, thereby further delaying the matter; or where a party has no locus standi to initiate an action; re-litigating an issue that has already been decided upon by one court in another court of concurrent jurisdiction instead of going on appeal, are all examples of abuse of court process – the list is inexhaustible and depends on the circumstances of the case; It is a rather elastic and wide concept, which is not always just an irregularity, but can be a fundamental defect, the consequence of which should be the dismissal of the abusive matter(s). See the case of Adesanoye v Adewole 2000 9 N. W. L. R. Part 671 Page 127.
In making judicial reforms and restoring the Judiciary to the enviable and revered position that it once occupied, the approach must be holistic. It is not only about the injection of funds, and making the Judiciary independent with adequate funds. Judicial officers must also play their own part with regard to their attitude, and the role that they are meant to play in society. Many judicial officers play their role admirably, but there are still some that are, sadly, lacking.