“I am surprised that lawyers can be so blind as to suffer the principles of law to be discredited.” – Ralph Waldo Emerson, The Fugitive Slave Law, 186 (1851)
There is a joke that when he or she wants an excuse to impress a client in order to finagle substantial earnings, a Nigerian lawyer resorts to Latin phrases. The objective is to make the lawyer sound profound beyond even his or her own understanding and it is immaterial that the speaker, like the person whom he or she seeks to impress, understands absolutely nothing of what s/he says.
This is not surprising. Very few people practicing law in Nigeria can possibly lay claims to any grounding in the grammar of Latin or a sense of the origins of most of the Latin expressions with which they seek to hold putative clients in thrall. But the want of meaning or grounding has never stood between that tribe and Latin vibe. Indeed, many will argue that Nigerian law these days – irrespective of the language in which it is rendered – has become mostly devoid of meaning.
It was the Normans, conquerors of England in 1066, who invented precedent as their central legal method. As Michael Glennon helpfully explains, “judges looked to earlier cases that presented similar facts, inferred holdings from these cases, pieced together those holdings in a single principle, and applied the principle to the current facts, thereby rendering it “common.” So it was that the “Common Law” evolved.
As they travelled around the world on an imperial mission of adverse territorial expansion centuries later, the British exported the methods of the Common Law around their acquisitions. They left it behind as a colonial legacy when they beat their final retreat in the decades after the Second World War. In post-colonial Nigeria, one of the territories weaned on this system, precedent was a recognised method of judicial decision making.
For this reason, law reports exist and law students, their teachers, practicing lawyers and judges, invest in them to divine the minds of judges and piece together principles of law on the basis of which to advise clients and litigants. The assumption is that with awareness of these cases and the principles that they reveal, lawyers can advise those who seek the benefit of their skills, knowledge and judgement, with reasonable confidence in their prognostications of what the inclinations of the law could be, if it came to be tested.
On the evidence of many recent renderings by courts in different parts of the country, however, this assumption that underpinned the practice of law and decision making by the courts in Nigeria can no longer be taken for granted.
On 17 April, 2024, for instance, Usman Na’Abba, a judge of the High Court of Kano State in north-west Nigeria, issued an interim order, without the benefit of hearing the side against whom the order was issued (ex parte), requiring Abdullahi Ganduje, national chairman of the ruling All Progressives Congress (APC), to “stop parading himself as a party member pending the determination of the suit.” The court also restrained Ganduje in the interim from presiding over the affairs of the National Working Committee (NWC) of the party.
The effect of this order was, of course, that the man could not be expected to be chair of a party to which he did not belong, as a matter of judicial reckoning. As egregious as it seemed, this kind of political sex work is not unprecedented it the annals of Nigerian judicial misconduct. Current Minister of the Federal Capital Territory (FCT), Nyesom Wike, successfully deployed it in August 2021 to oust then Chairman of the opposition Peoples Democratic Party (PDP), Uche Secondus.
This time, a worried Abdullahi Ganduje mustered proverbial loyal forces in an audacious counter-attack. A mere five days after he issued the order, without hearing one side, the same Usman Na’Abba, this time without listening to the side in favour of whom he had given the first order, issued “an order of interim injunction….staying the execution of the order of interim injunction contained in the ruling of this court delivered on the 17th of April, 2024.”
To translate this into language that is presumably intelligible, the judge, having first issued an ex parte order against Ganduje, suspending him from claiming to be a member of the political party of which he was national chairman, thereafter issued another ex parte order against his first order, using the second interim order to suspend the effect of the first one. In soccer humour, this would be a judge’s idea of a 1-1 scoreless draw!
But these kinds of excursions into the realm of judicial dystopian have become somewhat regular fare around the country. On 5 April, Inyang Ekwo, a judge of the Federal High Court in Abuja, purportedly sat on three cases against some leading members of the PDP from Rivers State, including Celestine Omehia, whose election as governor of the State in 2007 was later overturned by the courts; Augustine Opara, former deputy speaker of the House of Representatives; and Uche Secondus, whose experience with Nigerian judicial Jiu Jitsu is already the stuff of legend. The claimants, who said they were members of the PDP in Rivers State, sought interim orders to restrain these three, among others, from requisitioning, attending, participating in or being allowed to do any of these in connection with meetings of the governing organs of the PDP.
Again without pretending to hear them, Inyang Ekwo issued dispositive orders (not even interim) granting all that the claimants asked for. Thereafter, the files in the cases reportedly disappeared. Despite lodging appeals, Messrs Omehia, Opara and Secondus cannot find the files in order to process the records of proceedings for transmission to the Court of Appeal. On 2 May, they lodged complaints with the Chief Justice of Nigeria, Olukayode Ariwoola, in his capacity as chair of the National Judicial Council (NJC), asking him to discipline Inyang Ekwo. The Chief Justice himself has, however, been voluble about his personal devotion to Nyesom Wike, the FCT Minister who is the undisguised hand behind the machinations which seek to weaponise the judiciary in this loathsome manner. How he can pretend to handle these petitions with disinterest is anyone’s guess.
The day after the petitions against the invisible records in the cases before Inyang Ekwo, another of his peers on the same Federal High Court, Peter Lifu, issued yet another set of improbable orders ex parte restraining the PDP or any of its organs from meeting to consider a replacement of its national chairman, Illiya Damagun, or from recognising anyone other than him as its national chairman.
The Code of Conduct applicable to judicial officers in Nigeria specifically requires that a “judicial Officer must avoid the abuse of the power of issuing interim injunctions, ex parte.” Judges who issue these kinds of orders; chief judges who keep assigning these kinds of cases to a narrow and predictable cast of judicial recidivists and keep protecting their careers; as well as the lawyers who institute them, cannot pretend not to know that they are involved in a conspiracy to procure judicial transactions. As legal scholar, Tunde Ogowewo, once wrote in another context, “evidence of their guilt is furnished by the very decisions they gave.”
The only people rendered naked by these happenings are the lawyers whose claim to the discipline of the Common Law method of precedent is now in tatters. When Nigerian lawyers try these days to resort to Latin to describe the body of Nigerian law as corpus juris, the only word that can be used to complete that usage is “Abracadabra”.
Chidi Anselm Odinkalu, a lawyer, teaches at the Fletcher School of Law and Diplomacy.
