A renowned constitutional lawyer, Professor Auwal Yadudu, in an interview with Daily Trust yesterday, said politicians, not judges, should be blamed for the abuse of ex parte orders.
“To begin with, judges don’t look for people to seek ex parte orders. It is the politicians who come to them, and a courtroom is such a sacred place that those who preside over it have no right to turn away litigants without hearing them.
“Of course, ex parte orders are meant for emergencies where rights would be irreparably damaged if the party was not heard urgently, but now they are being abused by the politicians. That’s why I think it is inappropriate for those who take advantage of the system to now come and point accusing fingers at the judges,” he said.
He added that lawyers who present these motions before the judges, knowing and concealing other facts from the judges so as to get the court to grant the order, are also to blame for the bastardisation of the otherwise noble legal invention to protect against irreparable abuse of rights.
Asked if this is the practice in other jurisdictions, the legal luminary said the practice is different in other jurisdictions, adding that the idea behind ex-parte order is to protect fundamental rights that could be irreparably threatened before the conclusion of the substantive suit.
“The judges are the wrong people to be accused of excessive use of ex-parte orders because people take advantage of the position of the court never to turn people away without hearing them. In this place, they are blaming the victims.
“Obviously, the lawyers were not circumspect in filing these motions. It is the politicians, in concert with their lawyers, that are bringing the process into disrepute. I will think lawyers will take some of the blame.”
On what can be done to address this problem, Yadudu noted that ex-parte order abuse is just one of the many issues in the justice system that need to be addressed.
He said although the NJC could not just sit back and stop judges from granting ex-parte orders, it should look at ways of providing safety measures for the sort of issues that should qualify for this order.
“For example, these are political cases. It is not like someone is being arrested, locked up, or threatened with some physical harm or deprivation of rights. The system can itself be adjusted if it has become so rampant and unrestrained,” he added.
The Attorney-General of the Federation and Minister of Justice, Lateef Fagbemi, emphasised the significance of the revised draft national policy on justice.
He said building a national consensus on the advancement of the justice sector had become necessary.
In his keynote address, a former Chief Justice of Kenya, Dr Willy Mutunga, looked at constitutional and overall justice sector reforms in Kenya and Nigeria, and repositioning for an African justice system.
Analysing issues in the Kenyan and Nigerian justice sectors, specifically citing the Sharia law system in Nigeria, Mutunga said the development of an Africa-based jurisprudence would go a long way in restoring people’s confidence in the judiciary.
A Senior Advocate of Nigeria, Dayo Akinlaja, said ex parte orders are meant to be most sparingly issued when it becomes necessary and unavoidable to prevent the occurrence of a potential and imminent danger or injury of grave proportions and irreparable nature.
He said, “However, what we often now see is a scandalous scenario of random issuance of ex-parte orders in circumstances that are tellingly less than candid.
“The situation cannot and should not be allowed to continue unchecked. On account of this, I am in support of every legitimate mechanism that may be deployed to stem the tide of this highly distressing situation.”
Another lawyer, Emmanuel Anene, said arbitrary ex-parte orders “Can only be curbed by the NJC through the instrument of discipline or by the court itself, insisting that the other party be put on notice.”
