By Dr.Muiz Banire SAN
That there is a correlation between disobedience to court order and anarchy seems to be a fact yet to be appreciated by most Nigerians. This probably informs the choice of topic by the recent NBA-SPIDEL organizing committee when it couched the conversation as “Disobedience to court orders and the slide to state of anarchy”. This presupposes the probability of a slide to anarchy should court orders be continuously disobeyed. I was privileged to be the lead speaker and I had to recalibrate the title of my presentation as above. This is simply based on my conviction that it is not when a country is in a state of war that there is anarchy. The Yoruba’s will say, ‘Ogede nbaje, eni o n pon’ (a banana piece is getting rotten you claim its getting ripe). Why are we camouflaging the reality in a different garb, just to satisfy the demand of courtesy? Aptly captured in the Yoruba proverb, ‘Nitori kini a se pon jebe ni akisa?’
I think we are at a point in the history of Nigeria that we have to call a spade a spade. Let us speak truth to power. As remarked by John Stuart Mill, “All it takes for a nation to decay is for the good people there to keep quiet and do nothing”.
Today, with the multifarious criminal vices existing in the country, it is difficult not to conclude that the country is in a state of anomie. If fact, as soon as the rule of law, which I shall discuss later, is displaced, chaos sets in. That the rule of law has taken flight from Nigeria is an understatement. This is the sorry state of our nation today. It is no news that as the country is battling terrorism, it is confronting banditry; insurrection still has a free rein, while kidnapping is becoming a way of life. What can we say about the entrenched practice of obtaining by false pretence prevailing among our youth, particularly in the South today? The list is definitely endless. As hinted above, up till date, a lot of us are still unable to link the consequence of the disobedience to court order with this disorderliness.
Disobedience to court order which is now becoming a permanent feature of our society, is a call for concern. For those ignorant of the connotation of disobedience to court order, it simply implies situations in which binding orders rendered by a competent court of law are ignored or neglected by a party to a litigation who is meant to obey the order through action or inaction. By way of background, it will be recalled that the courts are products of the social pact reached after the displacement of the state of nature. Under the state of nature as described by
Thomas Hobbes, life was generally short, nasty and brutish due to the fact that the society operated on the principle of the survival of the fittest. Due to the social pact, however, absolute rights of the members of the society were abridged by way of donation of some of the rights into a pool exercisable by the state. This is what gave birth to what, in contemporary times, is known as government. There are several variants of government universally but one of the commonest is ‘democracy’, described by Abraham Lincoln as the government of the people, by the people, for the people. This form of government thrives on the rule of law, an offspring of the principle of separation of powers. The latter means division of powers among the different arms of government in a manner that each serves as a check on another. Rule of law, on the other hand, connotes adherence to the rules and regulations as set by society. In general parlance, it means that no one must be subjected to any form of punishment for an offence not specified by law.
It also implies that all citizens, regardless of status in society, including the government, must be tried in the same courts established by the law of the land and, thirdly, that nobody is above the law of the land, including the constituted authority. The import of all the above is that the courts are products of the law. The law established the courts. In fact, in Nigeria, the grundnorm, which is the Constitution of the country established the courts. It is common knowledge that in Nigeria, by virtue of Section 6(6)b of the Constitution of Nigeria, 1999 (as altered), judicial powers “shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations”. The import of this is that all persons and authorities are subject to the judicial powers exercisable by the courts. There is no exception in this regard.
Thus, all persons in the country are subject to the binding authority of the courts which implies that when decisions are rendered by the courts, all parties must comply regardless of their perception of the decision of the court. Regrettably, today, we are addressing this aberration of disobedience of court order, not only because it is now rampant, but due to the multiplier effects on the nation. The ultimate implication of the neglect of court orders is the triggering of loss of confidence in the judicial institution. When the people lose confidence in the judiciary, self-help creeps in. The net effect is that people adopt whichever way that is convenient and efficient to them to remedy the wrong done to them. So, it is not accidental that all the vices alluded to above are thriving in the nation, since the people already conclude that they cannot get justice in our courts. By way of extreme narrative, if a set of people with certain ideological conviction feels that they can agitate same in a court of law and obtain justice, the likelihood of their taking up arms becomes remote.
If, however, they are convinced that justice cannot be obtained in the courts, the tendency is to find their own ingenious way of making their point. This accounts for the emerging scenario we are witnessing in Nigeria today. Just before I am crucified that the courts are still functioning and rendering decisions, let me promptly correct the impression of the inapt equation of judgment with justice. Justice occurs upon the realization of the fruits of judgments, which hardly obtains these days. Hence, judgments, by way of decisions, continue to be rendered by the courts but the aggrieved victorious parties are not getting justice.
What is the essence of judgment that is unrealizable? Call it pyrrhic victory. Thus, aggrieved people in the circumstances are constrained and motivated to venture into the remedial vices they consider potent to them. Again, vices soar in the country because the courts are seen to be weak and their judgments unenforceable. That this stultifies the growth of a nation is a no-brainer. No society progresses or develops in a state of anarchy, which disobedience to court orders spells. The further implication is that no serious investor, except crooks, would stay or invest in such a country where there is disobedience to court orders. The immediate effect of this is lack of job creation, which raises the unemployment rate. Today, unemployment looms around 50% in the country.
Even companies within the country are relocating as the legal system is no longer reliable. It should, therefore, not be any wonder if there is dearth of foreign currency in the nation, with the consequential devaluation of our currency. Direct foreign investment is on a fast decline. Disobedience to court orders, which is a consecration of the rule of law, continues to enliven insecurity. As Professor Finnis puts it, rule of law obtains only as “a state of affairs in which a legal system is legally in good shape”. A most recent example is the unilateral and arbitrary declaration by the Federal Government, acting through Bureau of Public Enterprises (BPE), dissolving board of directors of four electricity distribution companies, namely, Ibadan, Kaduna, Port Harcourt and Benin Discos, and appointing persons who are neither investors nor shareholders in the companies to sit on their boards.
The case of the Benin Electricity Distribution Company (BEDC) has stuck out like a sore thumb as parties involved in this case have been at war. I understand that a suit was pending between BEDC and its largest shareholder, Vigeo Power Limited and Fidelity Bank Plc, in Lagos in which parties had a claim and a counter-claim, respectively. While the case was pending before the Federal High Court in Lagos before His Lordship, the Honourable Justice Bogoro, the BPE unilaterally announced the dissolution of the boards of the Discos, BEDC inclusive. This is contempt of the proceedings pending in Lagos in the first place. It means the government does not care whatever is happening in any court.
(To be continued next week)
