*Cites NJC Precedent Where Three Judges Were Barred from Promotion for Conflicting Orders
Senior Advocate of Nigeria Femi Falana has fired back at Prof. Ernest Ojukwu SAN following his public disagreement over the conflicting INEC timetable judgments, revealing that Justice Omotosho himself had previously taken the position in another matter that he could not overrule the decision of a colleague of coordinate jurisdiction a stance Falana says is directly inconsistent with the judge’s decision to deliver a contradictory ruling in the INEC timetable case.
Falana also cited a documented precedent where the National Judicial Council (NJC) sanctioned three judges for issuing conflicting orders in matters involving the same parties and subject matter directly countering Ojukwu’s argument that calling for an NJC investigation amounts to harassment.
Responding to Ojukwu’s defence of Justice Omotosho, Falana disclosed a personal professional experience involving the same judge.
“My dear Prof, I am going to take up this matter because his Lordship once made it clear to me in another matter that he could not overrule the decision of his learned brother. He therefore asked us to apply for a certified true copy of the earlier decision of the same court,” Falana stated.
The revelation is potentially damaging because it suggests that Justice Omotosho has previously applied a judicial philosophy of deference to coordinate courts declining to contradict a colleague’s decision and instead directing counsel to use the appellate process. If accurate, it raises the question of why the judge departed from that approach in the INEC timetable case, particularly when SDP’s own counsel had filed a motion asking the court to strike out the suit on the basis of Justice Umar’s earlier judgment.
Falana directly addressed Ojukwu’s objection to the call for an NJC probe by citing a concrete precedent where the Council took disciplinary action against judges for precisely the same conduct.
“The NJC has had cause to sanction high court judges for issuing conflicting orders,” Falana stated.
The precedent he referenced involved three judges from courts of concurrent jurisdiction who were sanctioned by the NJC for granting conflicting ex parte orders in matters with the same parties and subject matter specifically in litigation surrounding the leadership of the PDP involving Prince Uche Secondus.
In that case, the NJC without any written petition, allegation of corruption, or complaint of impropriety initiated an investigation on its own motion pursuant to its inherent disciplinary powers under the Constitution. The investigation committee’s recommendations were adopted at a meeting chaired by the then Deputy Chairman of the NJC, Justice Mary Peter-Odili.
Justice Okogbule Gbasam of the Rivers State High Court was barred from elevation to the higher bench for two years for failing to exercise due diligence in granting an ex parte order where there was no real urgency. He was also issued a warning letter.
Justice Nusirat I. Umar of the Kebbi State High Court was barred from elevation for two years after fundamental defects and non-compliance with the law were found in the granting of an ex parte order. She also received a warning letter.
Justice Edem Ita Kooffreh of the Cross River State High Court received the harshest sanction a five-year bar from promotion for allowing himself to be used as “a tool for forum shopping and abuse of court processes.” The NJC found that Justice Kooffreh was aware of earlier orders of the Rivers and Kebbi high courts, being courts of coordinate jurisdiction with his, when he granted his own conflicting order. He was also placed on the NJC’s watch list for two years.
Falana’s citation of the Secondus precedent is strategically significant because the NJC’s harshest punishment the five-year promotion bar imposed on Justice Kooffreh was specifically because the judge was found to have been aware of earlier orders from coordinate courts when he issued his own conflicting order.
In the current INEC timetable dispute, the parallel is direct: SDP’s counsel filed a Motion on Notice with Justice Umar’s judgment attached, formally bringing the earlier ruling to Justice Omotosho’s attention before the court proceeded to deliver its contradictory judgment. If the NJC applied the same standard it used in the Secondus case where awareness of earlier orders from coordinate courts was the aggravating factor that attracted the harshest sanction the implications for the current situation are clear.
The Falana-Ojukwu debate now crystallises around two fundamentally different views of judicial responsibility.
Ojukwu’s position is that judicial independence means judges of coordinate jurisdiction are free to reach different conclusions on the same legal questions, that conflicting interpretations of new legislation are normal and expected, that both judges should be commended for their bold decisions, and that the appellate system exists to resolve such conflicts without the need for disciplinary intervention.
Falana’s position is that the NJC has already established a precedent for sanctioning judges who issue conflicting orders with awareness of earlier decisions from coordinate courts, that Justice Omotosho himself previously applied a philosophy of deference to coordinate courts in another matter, and that the circumstances of the current case warrant investigation not as harassment but as accountability consistent with the NJC’s own standards.
The matter remains unresolved pending the Court of Appeal’s determination of INEC’s appeal against Justice Umar’s judgment. Whether the NJC will initiate any investigation as it did suo motu in the Secondus case remains to be seen.
