By Ibe Ikwechegh
At no stage in Nigeria’s history has the judiciary witnessed such high level of constant and sustained bombardment as has been at this time.
Very recently a very senior Judge of the Federal High Court, Abdullahi Liman faced the worst type of excoriation and castigation for assuming jurisdiction in a matter, the crusaders believed was outside of his jurisdiction. Last week had a publication on the online news of Vanguard and that of Premium Times among others and titled ‘Abdullahi Liman, and the making of a judicial scandal…’ The story was that the judge entertained a Fundamental Rights matter which had the effect of nullifying the re-appointment of Muhammadu Sanusi II as the 16th Emir of Kano.
It is said that Liman made it clear in his ruling that the orders do not affect the validity of the Kano Emirates (Repeal) Bill 2014 which was passed by the Kano State House of Assembly. But the orders, nonetheless, were perceived as having an effect and indeed had an effect on the issue of the offices of the Emir of Kano. The critics further asserted that the judge delivered a 22 paged ruling purporting to nullify every step taken by the Kano State government under the Kano State Emirate Council (Repeal) Law assented to by the Governor on 23 May 2024. Part of what was emphasized as the grouse with this order of Liman was that it was made virtually and that his court does not have jurisdiction in chieftaincy matters.
In all of these narratives there is no word mentioned on the illegality of virtual orders of the Federal High Court. We know that from covid 19 times, many courts adopted the rules permitting judges to hear cases virtually. Nothing in all of the objections has clearly asserted that virtual hearing was no longer part of the procedure of Liman’s court, nor has it been clearly shown that the rules dictated what must be the limits of the Judges geographic location at any such virtual proceedings. Therefore, when it is simply stated that the Judge was not present in court, it may seem that it is to offer through the powers of suggestion to the public that virtual proceedings were not permissible in our courts and such an assertion must be less than ingenuous.
The criticisms seem to suggest also that if we consider a judgment of the court to have been tainted with any vice, then we should go ahead to disregard it. It was the highly respected Lord Denning in a case called Macfoy v. UAC Ltd that once said that “if an act is void, then it is in law a nullity…there is no need for an order of the court to set it aside…” Yet this prosaic statement of Denning has been roundly rejected, both in England and in Nigeria. An English case of Isaacs v. Robertson in 1984 said that Dennings statement was made per-incuriam, a nice latin word used by judges to say that something was ‘made in neglect’. Yes, indeed because Denning made the statement in neglect of a 1846 case called Chuck v. Cremer where a then English Lord, Lord Cottenham had said that if a party knows of an order “…whether null, invalid, irregular cannot be permitted to disobey it..”
Here in Nigeria, our courts adopted the same approach. Our dear Supreme Court in a 1993 case called Rossek v. African Continental Bank Ltd enjoins us to obey decisions of courts and treat them as binding upon us until the courts say otherwise. One of the Justices of that court said ‘to hold otherwise is to clothe a party …with the discretion to decide, in his wisdom, that the judgment is invalid… an invitation to anarchy’. Does this not make sense?
And again, to put it out to the public that there was no jurisdiction of the Federal High Court in Chieftaincy matters was stating a correct statement of law in a context that misleads the reading public to conclude that the proceedings were a chieftaincy claim for which the Federal High Court indeed had no jurisdiction.
Personal jurisdiction and subject matter jurisdiction are known to be the two main factors that give courts anywhere the powers to sit over cases. The court’s power over the persons or entities who were parties in the case has not been called to question. And so, the problem was not with the in-personam jurisdiction of Mr. Justice Liman. Therefore, what must have been left to debate was his subject matter jurisdiction. And yet the subject matter in that case for all that we know was a fundamental right application.
Our courts have said it time and time again that what determines subject matter of the case is never the effect of the decision but the claims that is presented to it. It is indeed the specific kind of claim that has been brought to the court, presided over by Liman that determines the jurisdiction and not the effect which the claim may have. A claim, for instance, that a legislation violates a fundamental right under the constitution does not translate to anything else merely because the said law deals with a subject matter that is outside the jurisdiction of a court. The requirement that a court have subject matter jurisdiction simply means that the court can only assume power over a claim which it has authority to hear under the law.
Unlike the High court of our states, the law limited the subject matter jurisdiction of the Federal High Court and that is why lawyers say it is not a court of general jurisdiction. For that reason, whenever they approach the Federal High Court, they do not approach it with the same general presumption as they do with the state courts, because they know that the law has limited that court’s jurisdiction to specific matters. This is no lecture to the judges of that court; they know this too well and know the limits of their jurisdiction. If the subject matter of the case before Mr. Justice Liman were a fundamental Rights claim, which is agreeably within his jurisdiction, what difference then would it make that incidental to the claim is a chieftaincy matter? Judges have always used as a best indication of their subject matter, the complaint and the claims as providing the strongest indication of the subject matter and not the appendage issues. The statute under which a claim is made is also another strong indication.
We do not deny altogether that the effect which a judgment would have may be an indication of subject matter jurisdiction but it is not always so. Judges still interrogate with these effects on a case-by-case basis and there has never been any martinet rule on this.
Doubtlessly, as one must expect in real life situations, there come times when a case before a court of limited jurisdiction such as Justice Liman’s court may be so intertwined with other subject matters which are not within its jurisdiction. Such situations can present real dilemma to a judge. In a certain appeal case in the early 2000s, dealing with the jurisdiction of the Federal High Court and which involved oil spillage, Justice Aboyi Ikongbeh had asked what would be the outcome if an oil company stored a tank with two compartments, one holding oil and the other holding water and it falls mixing both water and oil and spilling unto the plaintiff’s farm. Then he asked what court in such circumstance would have jurisdiction and whether the plaintiff would carry the burden of ascertaining the damage caused by the oil and take that to the Federal High Court and that caused by the water and reserve it for the State High Court under the tort of Rylands v. Flethcer. As dramatic as this poser may have seemed, it underscores the dilemma which judges sometimes face in jurisdictional problems where the subject matters are interwoven.
Other legal systems, such as the United States have evolved solutions to these types of problems by creating supplemental jurisdiction for federal courts which allows them to hear claims for which it would not have had subject matter jurisdiction if they arose out of a common nucleus of operative facts as the one in which they have jurisdiction.
I do not here mean to suggest that Mr Justice Liman was actually faced with intertwined subject matter situation nor that he had any dilemma in the Fundamental Right Case that confronted him and I can’t find one, but just to say that even if it was such an occasion, he does, like all other of our judges, deserve support and guidance from the depth of the resources which we may have as lawyers and scholars. Our duty should be to help and not to castigate.
The truth remains that excessive criticism of our judges and their decisions may not have yielded much benefit to the system. Those who criticize court’s decisions unduly do more harm to society by fostering suspicion and lack of confidence in judicial process. They think, perhaps in good faith, that they serve as watch dog for inappropriate judicial behaviour but they indeed hurt society’s psyche and trust in the legal system. And they serve to ominously intimidate judges and cajole them to decide with the greatest trepidation and anxiety.
Independence of the judiciary would be greatly undermined, if each individual man and woman who sits on the bench must after clearing that his or her decision passes the legal test, further self sensor to be sure it will not draw to him or to her any personal attack. A judiciary is not independent if it cannot freely decide cases without first being sure that its decision would be appreciated by the more vocal pundits, ever ready to pick holes with their decisions, howsoever industrious it may be, but as long as it does not fit into the most usual mould to which the society have been accustomed.
Even if the Liman decision seemed unfamiliar, yet unusual and iconoclastic decisions have never been a taboo in a common law system. And so, while we critique such decisions, we must be fair to insert for public enlightenment, stories like the Mareva injunction which were not jurisdiction conferred by parliament but which was created out of expediency in in the United kingdom’s case of Mareva Compania Naviera S.A. v. International Bulk Carriers S.A. That the English court developed this form of interim injunction which prevents a defendant to an action from dealing with or dissipating its assets so as to frustrate a potential judgment has today become widely recognised in all civilized legal systems and yet no charge was ever made on that 1975 court in England for absence of a clear black and white letter law, conferring such an enormous jurisdiction. No doubt the court laid claim to the 100year old Judicature Act of 1873 giving courts power to grant interlocutory orders where it appears just or convenient. Nevertheless, that is so general in terms for bright line jurisdictional purposes. Today Mareva is in the English Civil Procedure Rules 1998 titled as Freezing Order. So much thanks to the ingenuity of the Judges in the Mareva Case.
A departure from the mould of what we imagine to be the law was not limited to England alone, it was part of the judicial method in Nigeria and continued even after independence. Judges recognised their unique roles as common law judges and implicit in common law tradition was not only to be bound by precedent but to extend it, where it is expedient.
As far back as in 1898, when Cole v. Cole was decided, the law was that the inheritance of the estate of a person who, though subject to customary law but contracts marriage under the Marriage Ordinance will be governed by section 36(1) of the Ordinance. Cole was subject to customary law but did marry under the Ordinance rather contracted a “Christian Marriage” in Sierra Leone where he domiciled. Even though his marriage was not under the Act, Justice Griffitt said he would base his decision on “broad grounds which will cover all cases of native persons in Lagos who have since 1876 contracted Christian marriages outside the colony”. Reasoning that a man who had married in the Christian way clothes his offsprings with a status unknown to native law said that it will be contrary to the principles of justice to decide his inheritance according to such Native Law and therefore held that English Law would apply. There is no record that the Protectorate of Lagos was agog with agitation for Griffith’s head for assuming a jurisdiction with which he had not been specifically clad by the Marriage Ordinance. And yet Cole’s case became a principle in Nigeria’s law of intestacy.
In 1957, Sir Mbanefo as a High Court judge in Ikeanyi v Adighogu, ordered annual tributes by customary tenants for the first time without clear cut jurisdiction in that behalf. It is today part of our land law.
We do not propose that judges may act without jurisdiction, that will be whimsical. But we must always in all sense of decency approach judgments and orders of the court with an unbiased view and a presumption that even if a judge was mistaken, that he was so mistaken in good faith and that his decision, strange as they may be, must have been a product of his conscientious effort to do justice. We must believe that judges do their best in good faith to do justice and that must involve interpreting their jurisdictional powers. Should they be mistaken, we must be comforted that at any rate, the system also has the appellate process as its own internal mechanism for checkmating any infusion of adverse judicial opinions.
In other words, that the judiciary is sufficiently self cleansing. And that we must balance the benefits, if any, of our vitriolic criticisms against the harm they do to the public faith in the judiciary. And when we must publicly criticise courts’ decisions, we must be fair enough to present to the public a cocktail of views on the issue and not just the views which we favour. For all judicial methods that judges adopt, there are many theories supportive of them. To be able to advance alternative theories and perspectives to a legal situation is to me the glory of academia. If there is any discipline in which there is no one answer to a situation, the law is one ready example.
The effort here has not been to do a eulogy for judges nor to justify any particular judgment which may have come under the bombardment of critics nor to provide any exoneration. The effort is to invite a deeper reflection on the new but inimical culture of subjecting decisions of the courts to undue censure and disparagement with the apprehension of the greater harm that inheres in it.
Chief Ibe Ikwechegh
Lawyer and Author
