Rule of law entails having an independent and impartial judiciary whose orders must be obeyed. Anthony Mathew summarized the doctrine of the rule of law as: “that the law touching on the basic rights of citizens shall be narrowly and precisely drafted so as to constitute a clear guide to official actions and citizens’ conduct; and that the application and interpretation of such laws shall be under the control of impartial courts operating according to fair procedures”. Professor Wade added “that disputes involving legality of government actions must be decided by courts independent of the government”.
Ex-parte order is a ruling of court which, according to the law, should be obeyed, no matter how perverse, except it’s overuled by a higher court or vacated by the same court. However, the way our judges are chunning out ex-parte orders is climaxing to a situation where a judge will use the instrumentality of an ex-parte order to demand that a citizen be executed or hanged for committing an offence for which the citizen has not even be granted fair hearing. Don’t think this is an exaggeration. Adams Oshiomhole was removed as National Chairman of the All Progressives Congress (APC) through the instrumentality of an ex-parte order. Uche Secondus was removed as National Chairman of the People’s Democratic Party (PDP) through ex-parte order. Julius Abure was restrained as National Chairman of the Labour Party (LP) through ex-parte order based on allegations of crime for which he was not given fair hearing. Iyorchia Ayu was removed as National Chairman of PDP through ex-parte order. Abdullahi Ganduje was temporarily restrained and removed as National Chairman of APC through an ex-parte order. The rights of all these men were affected by ex-parte orders without the simplest courtesy of hearing their own side of the matter. What else is remaining other than using ex-parte order to call that a citizen should be executed. The use of ex-parte order has become so ridiculous that a High Court in Kano issued an ex-parte order restraining the execution of an ex-parte order of another court of coordinate jurisdiction. How did we get here?
This debacle is simply a manifestation of ignorance of the true meaning and essence of ex-parte orders and the obvious incompetence and corruption of the leadership class which have unfortunately permeated the judiciary. An ex-parte order is an interim order of a court issued by a court without notice to the other party to the suit. In the native legal parlance, it’s an order made without fair hearing. Every student of law knows as a matter of fact and law that a court has no jurisdiction to make any order that affects the interest of an adverse party negatively without hearing from him because this will infringe on his fundamental human right of fair hearing, whether it is a civil wrong or a criminal offence, and as such is void. Please see section 36(1)(4)(5) of the 1999 Constitution.
It’s to guard against the issuance of an ex-parte order against the interest of a party that has not been heard that the Supreme Court of Nigeria and subsequent Chief Justices of Nigeria warned stringently against the flagrant abuse of ex-parte orders by Judges, maintaining that ex-parte orders must be used sparingly and can only be granted, in cases of real urgency, and to prevent irreparable damage of a grave nature against a claimant or applicant before the court has time to hear from the other party. Some Judges have faced disciplinary measures for such abuse, which the Supreme Court describes as judicial rascality. So ex-parte order is meant to be a shield to protect a claimant from danger and damage, not a sword to deny or infringe on a person’s fundamental human right or kill or punish a person unheard. In Enekwe v. I. M. B. Ltd (2006) 19 NWLR (PT. 1013) 146 at 182, the Supreme Court concluded that while the making of ex-parte injunction is not unconstitutional, “the order must be made sparingly and only where the circumstances are urgent and compelling such as to leave the court with no other alternative in preventing an anticipated injury of a grave nature”.
What is so urgent in removing a national chairman of a party that cannot wait until you hear his own side of the story before issuing ex-parte orders against him. It is in this respect that all the judges who ill-advisedly issued ex-parte orders for the restraining of the national chairmen of political parties should be sacked immediately from the bench and investigated vigorously for corruption, because it is reasonably assumed that a sitting judge who gives an order that will affect the rights of a Nigerian citizen without hearing from the person must have done it under the undue influence of corruption.
The issuance of an ex-parte order by a Kogi State High Court, to shield Yahaya Bello, former governor of Kogi State, from arrest and prosecution by the Economic and Financial Crimes Commission (EFCC) and the subsequent ex-parte orders from a Federal High Court (FHC) in Abuja have raised some germane legal questions begging for answers. Let us admit that the granting of the ex-parte orders by the Kogi High Court and the FHC, Abuja are not as egregiously absurd as the ex-parte orders to remove the national chairmen of political parties without hearing from them. Yahaya Bello has the right by law to shield himself from persecution or infringement of his fundamental human rights with the instrumentality of ex-parte orders, pending the determination of the motion on notice. However, the Kogi High Court’s ex-parte order was fundamentally flawed for being issued pending the determination of the suit. It can only be issued pending the determination of the motion on notice and should die within 14 days. Issuing an interim injunction on 9th February, 2024 to last till 17th April, 2024 is an error in law. The EFCC ought to have been served a motion on notice to be heard before an interlocutory injunction is issued against it pending the determination of the suit. It’s important to note that the Kogi High Court also stated in its judgement that with the leave of court, EFCC can prosecute Yahaya Bello. No court has any legal right to stop a legitimate administrative institution from doing its job as assigned to it by law. By creating the leeway that EFCC can prosecute, by the leave of court, EFCC had the right also to approach the FHC to seek leave to prosecute Bello.
The major issue here may not even be the propriety or otherwise of the ex-parte orders but the propriety of the process by which the EFCC and “big men” do their things in Nigeria. The modus operandi of the EFCC in the past has raised sufficient doubt in the heart of every “big man” or politically exposed persons that their theatrical performance during arrests result in avoidable persecution of the accused persons. A case in point is that of Ayo Fayose, former governor of Ekiti State, who surrendered himself voluntarily to the EFCC immediately after his tenure as Governor of Ekiti for trial. EFCC had no business whatsoever to detain or restrict his movement for even a second. They should have interviewed him respectfully and if they believed he had questions to answer, filed charges against him, and invited him to come to court for his arraignment. This is the international best practice. There’s no law that said a citizen must be put in handcuffs and detained before being arraigned in court. Apart from unnecessary show of force and bravagado by EFCC there’s no other purpose of detaining or restraining any citizen who voluntarily submits to its authority.
The law is clear that anyone that voluntarily submits to authority should not be handcuffed or restrained. Section 4 of the Administration of Criminal Justice (ACJ) Act, 2015 puts it clearly that “In making an arrest, the police officer or other persons making the arrest shall actually touch or confine the body of the suspect, unless there is a submission to the custody by word or action”. While section 5 states that “A suspect or defendant may not be handcuffed, bound or be subjected to restraint except: there is reasonable apprehension of violence or an attempt to escape; the restraint is considered necessary for the safety of the suspect or defendant; or by order of a court”. Fayose submitted voluntarily, so why humiliate him by detaining and restraining him unnecessarily. The EFCC should change its operative guidelines to motivate other people to voluntarily submit themselves by avoiding unnecessary drama. Even Governor Obiano was unlawfully videoed by unscrupulous EFCC operative while in detention just to humiliate him.
Having said this, Yahaya Bello was wrong in evading arrest on the purported order of a court. Even if there’s an order of court restricting any agency from arresting him and they decide to disobey the order and come to arrest him, it’s not in his power to recruit people to challenge them. If your hands are clean, you should boldly surrender yourself and present the court order to them and explain why their action is legally wrong, after all, it’s still the court that they will eventually bring you to. It’s only the wicked that flees when nobody pursues, but the righteous is as bold as a lion. That a “lion” like Yahaya Bello is fleeing creates the impression that he has something to hide and this is not good for his image and that of Nigeria. He should have voluntarily surrendered himself to the EFCC and be interviewed and his lawyers and the court will take it up from there. If Yahaya likes, let him get a 1000 ex-parte orders from court, he will eventually be arraigned in court, except he flees out of Nigeria and officially becomes a fugitive, or except the EFCC changes its mind. Nobody is or should be above the law, even if the person is the President of the United States of America, the most powerful citizen in the world.