In
the thinking of the prominent civil Rights advocacy group – HUMAN RIGHTS
WRITERS ASSOCIATION OF NIGERIA (HURIWA), unless the members of the National
Judicial Council (NJC); the Nigerian Bar Association(NBA) and the International
Bar Association (IBA) collectively adopts constructive steps in protest against
the pattern of serial disrespect of court orders by president Muhammadu Buhari
and the State Security Service (SSS), the Nigerian Judiciary may collapse
anytime soon as litigants may think of opting for self-help measures which may
unleash chaos and anarchy on a grand scale.
HURIWA
said the nation's judiciary is hobbled by the internal contradictions and
credibility crises of the unedifying manner and circumstances that threw up the
newly sworn in Chief justice of Nigeria Tanko Muhammad and head of the Judicial
arm of government which accounts for the widespread disregard for orders of
competent courts of law by central government officials just as the Rights
group said external assistance is needed to rescue the judiciary of Nigeria
from implosion and collapse as a result of cocktails of self-inflicted
credibility problems. HURIWA said the NBA should drive the process and should
seek technical help from global legal bodies.
The
Rights group which spoke against the backdrops of the reported threats of the
Federal High Court to jail the Director General of SSS Alhaji Yusuf Bichi for
contempt of court for the SSS refusal to set free the duo of Omoyele Sowore and
Olawale Adebayo Bakare (mandate) on bail just as the Rights group charged the
chief justice of Nigeria to be courageous, grow balls enough and to order that
no courts of law should entertain any matter filed by the State Security
Services(SSS) until the agency comes clean and obey all subsisting bail orders
by releasing all illegally detained suspects.
HURIWA
said: “We in the human rights community have done extensive research on how to
rescue the judiciary from imminent collapse due to executive lawlessness and we
are aware that apart from contempt proceedings, a judge can set aside any act
done in disobedience of court orders and judgments. We learnt from the
scholarly writings of one of the retired but reputable jurist that this is the
decision of the Supreme Court in The Attorney-General of Ekiti State v. Prince
Daramola. The court of Appeal held that the Ondo State Government appointed
Warrant Chiefs in disobedience to an existing valid order of court. The defence
of this allegation was that the order was not properly served on the Attorney-General.
Although the Court of Appeal condemned the disobedience, describing the act as
“blatant, brazen and lawless”, the Supreme Court held that the order of intern
injunction against the Ondo State Government was not properly served on the
Attorney-General.
HURIWA recalled that according to our findings, the Supreme Court however held that a court can set aside act done in disobedience of order of court. The proper approach in setting aside act done in disobedience of order is by applying to the court in the same proceedings and not by filing an entirely new suit. That was what the plaintiffs did.Ogundare, JSC, in his concurring judgment, said at page 162: “If on being made aware, by service, of the order of the Government proceeded to appoint Warrant Chiefs in disobedience of the court’s order, the plaintiffs should have moved in the case (that is HCJ/24/91) for an order setting aside the appointment of the Warrant Chiefs and whatever action the Chiefs would have taken subsequent to their appointment. Rather than take such a course of action, the plaintiffs instituted a new action. The Chief justice of Nigeria should make a pronouncement stopping the entertainments of All pending cases by the SSS or DSS until the agency purges itself of the vexatious and serial disrespect of binding orders of courts of competent jurisdiction which has the Judicial powers of the federation in accordance with section 6 of the 1999 Constitution of the Federal Republic of Nigeria which states thus:” (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. (2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State. (3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record. (4) Nothing in the foregoing provisions of this section shall be construed as precluding:- (a) the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court; (b) the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being. (5) This section relates to:- (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (d) the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; (i) a Customary Court of Appeal of a State; (j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. (6) The judicial powers vested in accordance with the foregoing provisions of this section - (a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law (b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; (c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law. ”
HURIWA recalled that according to our findings, the Supreme Court however held that a court can set aside act done in disobedience of order of court. The proper approach in setting aside act done in disobedience of order is by applying to the court in the same proceedings and not by filing an entirely new suit. That was what the plaintiffs did.Ogundare, JSC, in his concurring judgment, said at page 162: “If on being made aware, by service, of the order of the Government proceeded to appoint Warrant Chiefs in disobedience of the court’s order, the plaintiffs should have moved in the case (that is HCJ/24/91) for an order setting aside the appointment of the Warrant Chiefs and whatever action the Chiefs would have taken subsequent to their appointment. Rather than take such a course of action, the plaintiffs instituted a new action. The Chief justice of Nigeria should make a pronouncement stopping the entertainments of All pending cases by the SSS or DSS until the agency purges itself of the vexatious and serial disrespect of binding orders of courts of competent jurisdiction which has the Judicial powers of the federation in accordance with section 6 of the 1999 Constitution of the Federal Republic of Nigeria which states thus:” (1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. (2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution, for a State. (3) The courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record. (4) Nothing in the foregoing provisions of this section shall be construed as precluding:- (a) the National Assembly or any House of Assembly from establishing courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court; (b) the National Assembly or any House of Assembly, which does not require it, from abolishing any court which it has power to establish or which it has brought into being. (5) This section relates to:- (a) the Supreme Court of Nigeria; (b) the Court of Appeal; (c) the Federal High Court; (d) the High Court of the Federal Capital Territory, Abuja; (e) a High Court of a State (f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja; (g) a Sharia Court of Appeal of a State; (h) the Customary Court of Appeal of the Federal Capital Territory, Abuja; (i) a Customary Court of Appeal of a State; (j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make laws; and (k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws. (6) The judicial powers vested in accordance with the foregoing provisions of this section - (a) shall extend, notwithstanding anything to the contrary in this constitution, to all inherent powers and sanctions of a court of law (b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person; (c) shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Constitution; (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law. ”
HURIWA
recalled that an Abuja Federal High Court threatened to jail the
Director-General of the Department of State Services, DSS, Yusuf Bichi over
failure to release convener of RevolutionNow Movement, Omoyele Sowore.
HURIWA
recalled that Justice Ijeoma Ojukwu-led court had issued a notice of
consequences of disobedience of a court order which is also known as form 48 on
the DSS, before Monday’s session even as Ojukwu stated that Bichi will be found
guilty of contempt of court if he refuses to comply with the court order on release
of Sowore.
HURIWA
recalled that the notice reads: “Take notice that unless you obey the direction
contained in the order of the federal high court of Justice, Abuja made on the
6th November 2019, which ordered you to release the defendants/applicants in
suit no: FHC/ABJ/CR/235/2019 forthwith, you will be guilty of contempt of court
and will be liable to be committed to prison. “A copy of the said order of
court earlier served on you is hereby annexed for your on the spot reference. “This
court has been informed that even as at today, Tuesday the 12th November 2019
you are yet to comply with the lawful order of the Federal High Court by
refusing to release the defendants/applicants namely: Omoyele Stephen Sowore
and Olawale Adebayo Bakare (Mandate) in your custody. “You are hereby directed
to comply with the court order forthwith or you will be guilty of contempt of
court.”
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