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Saturday, 3 August 2019

Disobedience To Court Orders; Individual Rights, Public Interest And Malami’s Circumlocutions

Disobedience To Court Orders; Individual Rights, Public Interest And Malami’s Circumlocutions
By K.P Nwodo

Democracy as a system of government has certain features that can not be altered anywhere it is truly practiced as far as the entirety of the political composition has proper orientation and appreciation of pure political culture divorced from sentimental affiliations, party loyalties and God father syndrome.

These practices are so important to the existence and survival of every democracy irrespective of whether it is just burgeoning like ours or full-grown, and wittingly neglecting any of them (especially by institutions of the state) is always noxious to the harmonious existence of the state.

For a donkey period of time, even up till date, our nation been plunged into avoidable turmoil as a result of the callousness of some who choose to contravene these practices that go pari passu with what is adjudged by pundits as the best system of government.

Prominent amongst these indispensable practices are true separation of powers and obedience to court orders.

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It must be stated that when an arm of government flagrantly disregards court orders pronounced pursuant to the letters of the constitution, it is inadvertently concomitant to breaching the principle of separation of powers which is a fundamental democratic principle and such acts ought to be condemned and not excused as it has the tendencies of implicitly or explicitly undermining a democratic system- especially one as fragile as ours.

To cut the cackles and proceed to the horses, few days ago during the traditional screening process for ministerial nominees the immediate past Attorney General of the Federation, Abubakar Malami SAN appeared before the Senate to be screened.

During the screening process, The Senate’s Minority Leader, Sen Enyinnaya Abaribe (PDP Abia South) questioned the ministerial nominee with regards to the Federal Government’s palpable and overt disregard of several pronouncements of courts with competent jurisdiction under his tenure as AGF.

Abaribe’s question was hinged around sections 36, 37 and 39 of the 1999 Constitution of the Federal Republic of Nigeria which espouses individual liberties of which the Attorney General is expected to palisade patriotically.

It was in attempting to exonerate himself and the government he served that the learned senior advocate fanned the embers of another cut and thrust in our political milieu as his response left quite a number bones to pick.

He said “I concede as argued by the Minority Leader, that a Minister of Justice and Attorney General as stipulated by sections 36, 37 and 39 of the constitution, is supposed to protect the rights of any citizen from being violated even by the state, but where such rights conflict with the public interest, the latter overrides the former.

The Office of the AGF has the exclusive responsibility to uphold the public interest above personal interest of anybody”. He explained further by citing the ruling of the Supreme Court in FGN V. Asari Dokunbo where on the grounds of public interest, the court refused him bail.

Having attained the revered position of a SAN prior to his political appointment, it is the ingenuous belief of many including this writer that Mr.Malami is a legal connoisseur and he has on several occasions not failed to exude his adept knowledge of the law which justifies why his opinions on several subjects are held in high esteem. However, it remains true that as humans we are all susceptible to mistakes from time to time irrespective of how experienced or knowledgeable we may be.

Therefore, without indicting the learned SAN or being prejudicial, as Malami might have meant something other than the message his words conveyed, perharps this writer may not have attained the level of intelligence required to adequately decipher and comprehend what the ex-AGF was saying, this writer craves your indulgence to enumerate his reservations with his asseverations. Before proceeding, it is apropos to allude to a blip on the radar of cases where the courts have emphasized on the need to obey court orders.

In Governor of Lagos state v. Ojukwu (SC.241/850) 1986, Uwais.JSC posited succinctly “I think I should stress that it is a matter of grave concern that the military government of lagos state should be seen to disregard a lawful order by a court of law. If anyone should be wary or orders of court it is the authorities: for them, more than anyone else, need the application of the rule of law in order to govern properly and effectively.”

Nwodo JCA opined in Kalu v FRN. “In general, orders of a competent court should not be flagrantly disobeyed. Our nascent democracy and constitutional provision enjoins orders of a court to be respected. This is corollary to strict adherence to the rule of law. Obeying of courts orders is not just a legal but also a moral obligation.”

In Hart v Hart Nnaemeka-Agu enthused thus “Disobedience to an order of court should therefore be seen as an offence directed not against the personality of the judge who made the order, but as a calculated act of subversion of the peace, law and order of court is therefore a duty which every citizen who believes in peace and stability of the Nigerian state owes to the nation.”

From the foregoing, it is seen that disobedience to court orders acts as threat to the sanctity of our judicial system, deflects the sacrosanct nature of our court system and brews dissatisfaction which fosters anarchy and break down of law and order in the larger society. Hence, it should not be encouraged by anyone who has the peaceful coexistence of our dear nation at heart.

Coming back to Malami’s answer, the ex-AGF like a whirlwind swiftly held fast to protection of public interest as the major reason for the FG’s defiance to court orders, which is where my objections begin.

With the way Malami’s words were construed, it seemed like an indictment on the learned members of our judiciary, especially the bench. He clandestinely insinuates that the honorable and venerable members of the third-arm of government have been acting against public interest with their decisions.

Was the learned Senior Advocate saying that Justice Hussein Baba Yusuf of the FCT High Court who granted Sambo Dasuki bail four years ago acted against public interest and that Justice Ifeoma Ojukwu of the Federal High Court, Abuja who granted him bail on the 2nd of July 2018 followed suit? What about the most recent judgment of the Court of Appeal on the 13th of July 2019?

These are just but a few of the numerous judgments that have been disregarded by the Federal Government under Malami’s watch as Minister of Justice. Does Malami’s office as Attorney General of the Federation and Minister of Justice confer him with the powers to overrule a court’s ruling? Has the SAN suddenly become amnesiac to the well-established legal principle of the binding effect of a court’s judgment?

Let me therefore remind Mr Malami that in Edilcon (Nig) Ltd v. UBA PLC the Supreme Court reaffirmed “the law is settled beyond any argument that a judgment or ruling of court of law, no matter how incorrectly arrived at is valid, binding and subsisting until it is set aside by the same court through a judicial review or by appellate proceedings.”

If Malami and his cohorts believe the decisions of the courts were delivered per incuriam and portends danger to public interest what they ought to have done as custodians of justice was to appeal the judgments whilst sticking to the earlier judgment as it remains binding until overruled.

Section 174 (3) of the 1999 CFRN was quoted halfway by the minister and recalibrated to suit his interests and that of his head honchos. That provision states thus “In exercising his powers under this section, the Attorney-General of the federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.

As I have perspicuously opined, to say several learned and honorable judges like in an act of conspiracy or collusion gave orders that undermine public interest is in itself a miasma not expected from Malami who has been a minister in the temple of justice since 1992.

As a matter fact, if anyone should be indicted of going contrary to public interest it is Malami and the Federal Government as their defiance to court orders is a greater threat to the sacrosanctity of our constitution which enshrines the principle of separation of powers. Section 6 (6) (b) of the 1999 CFRN vests on the courts judicial powers 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.

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Malami ululating that he defied court orders because they were against public interest is therefore an usurping of the powers of the judiciary which is detrimental to Nigeria as a democratic state. Section 174 (3) also states that the AGF shall have regard to the interest of justice. Will Malami also say that defying orders of the court was in the interest of justice?

If yes, then we will have to dedicate another dissertation to clearing the air on what justice entails. The continued detention of persons set free by the court is a blatant negation of the axiom of justice. It is highly prejudicial, as it compromises the presumption of innocence of an accused contemplated by section 36 (5) of the constitution. Lastly, can Malami say that defying orders of the court was intended to preclude an abuse of the legal process?

Let’s pause and ponder on this a bit… On the contrary, the executive has abused the legal process by charging suspects to court with a predisposition not to heed to any pronouncement of the court that does not favour them. The executive has pummeled our judiciary; it has made ridicule and mockery of her and it has soiled her once glowing visage.

It must also be stated that the case of Asari Dokunbo v. FRN referred to by Malami is incongruous with what we have at hand, that analogy is fundamentally defective. In that case, the Supreme Court denied Dokunbo bail on grounds of public interest.; here, the court granted an accused bail and the AGF has taken it upon himself to become a Supreme Court by overruling the judgment of the court.

Dokunbo’s case did not endow the AGF with the powers to overrule a court’s judgment on grounds of public interest; that remains the exclusive responsibility of the court to determine.

To end these hums and haws, it is sincerely believed being a patriotic Nigerian that Malami should have either admitted and apologized to Nigerians for desecrating the judiciary or should have put forward a better reason rather than waffling around the cogent question put forward by distinguished Senator Abaribe.

However, as was stated in the exordium of this paper, there is no intention in anyway to demean the impeccable and astute personality of the SAN, as he is one greatly admired but would love him to do our nation the good of ensuring that the executive which he is a cabinet member of, heeds to court orders and uphold the constitution and all the principles cardinal to the running of a smooth democracy.

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