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Disobedience of Court Orders, Form of Intimidation, - Pats Acholonu, JSC.

It took time before that press was opened leaving one with the speculation as to whether it was opened because of the long standing order of the-court or because the owners pleaded with the Respondent, the Head of the State to reopen the Newspaper Company.

A state of affairs in which the Executive that is headed by someone who swore an oath, that is, made a covenant with God that he would respect and obey the constitution, and which includes total and unwatered obedience of the orders of the court, turns round to mock the constitution by refusing to be faithful to court orders, or indulging in cheap tactics or being begged by the stakeholders to use his "good offices" to obey the order of the court is indeed a respice for denouement, desecrating, denouncing and dethroning the rule of law, and an onward march towards anarchy. I feel troubled, and I tremble whenever I read in the Newspapers how various chief executives and their minions spurn and treat the orders of the courts with levity....leaving the impression that since the courts have neither the police nor guns nor the army to enforce whatever orders they make they could treat such orders with impunity. By so doing, the courts are considered useless. Our Constitution vests the enforcement of the orders of the court in appropriate cases in the Executive. It is the executive disobedience that is very worrisome. I here cite the case of ATTORNEY-GENERAL OF LAGOS STATE v ATTORNEY-GENERAL OF THE FEDERATION 2004 N.W.L.R. In that case the plaintiff had complained to the Supreme Court of the failure or refusal by the Federal Government to pay into its account its constitutionally guaranteed and entitled funds. The Supreme Court found in favour of plaintiff's action. Almost all the reliefs claimed were granted, but applicable only to the Local Government Areas specified in Part 1 of the first schedule to the Constitution. It is now a moot question whether the order of the Supreme Court has up till now been complied with.

NEGATIVE IMPACT Of DISOBEDIENCE OF COURT ORDERS
One of the most ignoble and injurious effects of disobedience to court orders by any Chief Executive of a Government is that the pronouncement of the court is ignored leaving the impression that the court may well bark but it cannot bite thereby making it a worthless bulldog. Recently, in fact only last year, the Chief Justice of Nigeria The Hon. Justice M.L. Uwais had this to say at the opening of all Nigeria Judges Conference

That someone who is put in a position of authority to be the Great Servant of the people whether of the Federation or State or Local Government or a Ministry et al which post is not intended to translate himself into a "god" - (an Africa god for that matter) would in fact proceed to do so. It therefore comes squarely to the proverbial saying that "All powers tend to corrupt but absolute power corrupts absolutely". (Lord Acton). Where then is the spirit of the law that rules us? Am I not right in saying that it is the spirit embedded in the Constitution that commands and' enjoins all who are committed to enforce the orders and decisions of the court in order to make the society one ruled by laws to which all the mighties must bow to. The refusal or disinclination of the Executive arms of the government to obey the orders of the court is a subtle or disguised form of intimidation which attitude can be understood to mean. "We dare you. Your court can do nothing to our disobedience". It must be emphasized that all orders of the court must be obeyed regardless of whether the order was made on an erroneous ground or even in bad faith. There is an appropriate way to get rid of obnoxious or a bad order of the court.

Recently the Deputy Governor of Abia State Dr. Chima Nwafor was said to have been impeached by the Abia State House of Assembly and a new Deputy governor was said to have been appointed in his stead was reported in THISDAY that just about the time the Governor of Abia State Chief Orji Uzor Kalu was about to swear in the new Deputy Governor the erstwhile Deputy Governor had already obtained an injunctive order of the court restraining the Governor from swearing the New Deputy Governor. The Governor, Chief Orji Uzor Kalu promptly complied with the order stating that the court has spoken and therefore the order of the court should obeyed by all and sundry.
What is the import of the expression "the court has spoken".

This is an expression popularized in Western democracies which means that once the courts have said what the law is, that is final. It means or connotes that once the court has made an order in exercise of its interpretative powers, all parties who should or ought ordinarily be bound or affected by the court order cannot strive to explore by devious or dubious act to circumvent and render nugatory the true intention of the order of the court. Where do we proceed from here if an order made by the court should be callously and ignomiously treated. The resultant effect is better imagined than said. Indeed it would portend dangerous dimension in the conception and belief of the citizenry on what a civilized nation means. If you treat the courts' order as useless by refusing to obey them, then anarchy may set in and in a developing country like ours where many people particularly the illiterates or ignoramuses are literally itching to take laws into their hands, then of course, we will lapse into dark ages and become once again the dark continent or dark country for which we were as recently as the 19th century known and described.

Is this what we want? In the "Second Part of King Henry IV by Shakespeare, The Earl of Westmoreland addressing the Archbishop of York who along with his train came in a warlike manner to the Palace and were rebuked for doing the opposite of what was expected of them that was to bring peace and not war in the land said:

The moral of this is; Should the people entrusted with the duty to ensure that orders of the court are obeyed turn round to indirectly declare war on court orders. Not quite long ago a party sought access to this Court in respect of a matter which is tangentially connected with a case for which a decision had been given by the Supreme Court. When the court asked the leading Counsel for that party whether their client had obeyed the order of the court, Counsel dithered but noticing the mood of the Court equivocated, and stuttered then he withdrew the process filed and beat a hasty treat. The above conjures the image of people who are looked upon to uphold the Constitution who are deliberately violating it by turning their backs on the orders of the court. The Guardian Newspaper recently published an excerpt from a paper presented by Anambra State Government to the Committee on Constitutional Review which among other recommendations states thus, "That the Commitment of all organs of Government including the Presidency to unqualified obedience to court orders should be forcefully restated in the New Constitution. There ought to be clear sanctions provided against any functionary of government found to be in disobedience to any subsisting court order". Ordinarily disobedience of courts' orders is punishable by court by way of contempt procedure. How can in this society where the big ones and those close to powers that are laws unto themselves be punished for contempt. The Executive would merely cackle with laughter and disdain. There is nothing the courts can do. The media may try to inform the public but where the rule of law is viewed with contempt and suspicion, and some people believe that they are above the law or regard themselves as the very embodiment of the state, quo vadis? Just on March 3, 2006 CNN announced that U.S. Government had duly complied with the Order of an American Court that some of the detainees in Guantanamo Bay should be released because the Court has spoken. There are no two ways about it. What is really wrong with African? How can power intoxicate us so much that we fail to remember that all powers come from God and that no condition is permanent and we do not live for eternity on earth. A situation in this country where an appellate Court has given a final judgment in an election matter and the National Assembly dithers or shows reluctance to admit the new member does not show obedience to the orders of the Court. That attitude does not portend something good or edifying.

THE ROLE OF THE CHIEF LAW OFFICERS
At common law and by the Constitution, the Attorney-General is not just the conscience of the State, he is the Chief Legal Officer of the State. In other words his appointment is presumed to be owed to a deep knowledge of the law which implicitly means that the person who appoints him to that office has the confidence that he would discharge his, responsibility as the Chief Counsel of the State professionally and with all sense of decorum and be a slave of the law. I In that case where the court makes an order affecting the Government he is serving and the Government refuses to obey the order, it then means that the Chief Law Officer, that is, the Attorney-General should after advising the Government to obey the order of the court and the Chief executive fails to heed his advise, his pride and, professional ethics should make him resign as his advice in law means nothing and it will be dishonest to continue to regard him or describe him as the Chief Law Officer of the State. If he should refuse to resign but unashamedly cling to the office then he is a disgrace to the profession as by his continued stay he would have done incalculable harm to the Bar and the great historical office of Attorney-General. Being a lawyer he must confine himself to law so as to be able with the assistance of numerous of legal officers in his department tender a well considered worthy and unimpeachable legal advice. He is not a civil servant. It will be a shame for him to continue to be there when his advice is being ignored. He has dual position, to wit - Minister of Justice and Attorney-General. Being a member of the Executive body cabinet should not make him turn a blind eye when the Government he is serving as the Chief Law Officer proceeds to embark on the unconstitutional act of disobeying court orders.

DISOBEDIENCE TO COURT ORDER AND COMMITTAL
Generally speaking disobedience to the order or decree of the Court is a contempt matter for which the person disobeying is liable to be committed for contempt. However care must be taken to state that casual or unwiful disobedience to an order will not justify an order for committal for contempt as there is clear absence of intention to disobey. See FAIRELOUGH v MANCHESTER SHIP CANAL CO. (897) W.N.7C.A. and STEINER PRODUCTS LTD. v WILLY STEINER LTD. (1966) 1 W.L.R. In case of corporate body disobeying the order of the court the Directors in appropriate cases may be punished otherwise the corporate body would be fined for flouting the order of the court. See R v HAMMOND & CO. LTD. (1914) 2 K.B. 866. Where Darling J. said:

"This matter comes before the court upon a rule which was obtained against J. G. Hammond & Co. Ltd., Modern Society (1911). Ltd., and one Frank Harris On behalf of the two limited companies the point has been taken that this procedure is inapplicable because the rule calls upon them to shew cause why they should not be attached for contempt of court. The court cannot, it is true, order a writ of attachment to issue against them and commit them to prison, for the simple reason that the officer of the court would not be able to put his hand upon that which has no corporeal existence, but that does not prevent the court from availing itself of the remedy which it possesses. The fact that the rule calls upon a limited company to shew cause why it should not be attached does not prevent the court from inflicting the appropriate punishment, namely, ordering the company to pay a fine and the costs of the application."

Recently the Nigerian Bar Association embarked on a 2 day strike to protest against disobedience of Court Orders. If we have reached a stage in this country where the Bar would ask the courts to close shop for 2 days to demonstrate its grievance against disobedience to Court Orders, then we are in for a high jump.

Let us pray that we turn into a new leaf and be in tune with other civilized countries or are we not one of them?