EL – Rufai and disobedience of court orders

One of the fallouts of the Senate FCT Committee’s public hearing on the administration of the FCT between 1999 and 2007 is the persistent accusation that the El –Rufai administration disobeyed several court orders in its programme of removing illegal structures and squatter settlements in the FCT. Indeed, the Senate FCT Committee made this accusation one of the corner-stones of its investigation and public hearing by providing ample opportunity, platform and time to all manners of interest groups and individuals to ventilate their grievances on the issue.

Without a doubt, the grand design of this spate of accusations, which permeated the media and became a subject of back and opinion page commentaries, editorial opinions and letters to the editor, is to prove that El–Rufai was lawless, acted illegally and irresponsibly, and held the nation’s judiciary in utter contempt.

The obsessive hysteria and pompous noise that characterized these charges are aimed to reinforce in the minds, imagination and consciousness of the Nigeria public about how intolerant, inhuman and callous his attempt to reclaim and restore the FCT’s abused and violated master plan was. If the accusations were to stick, it would then provide ample ammunitions to elements in the senate committee, the current FCT administration and some of those, low and high, effected by demolitions with which to successfully demonize him, not to talk of “nailing” him.

Like all fictive works of imagination, these accusations on the disobedience of court orders started on a grand, elaborate note before petering out into a matter of relative insignificance upon close, critical examination and scrutiny. Initially, it was wildly and widely speculated that literally hundreds, if not thousands, of court orders were disobeyed. This figure was eventually adjusted to 76 court orders which were in contention, and after the careful report written by the FCTA Director of Legal Services and El-Rufai’s hand written and oral testimony at the public hearing, the court orders in questions were further pruned down to about 10.

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Indeed, El–Rufai’s powerful testimony pierced through the armour of these ridiculous charges and has virtually made the present effort almost an academic exercise. He averred that his administration was lawful and law – abiding; that all removals of illegal and offending structure followed due, legal process and laid down rules, guidelines, procedures and regulations; that he never violated or disobeyed any properly and legally served court order; and that the only case he could recall in which a contempt proceeding was instituted against the FCTA was by Bulet International LTD whose structures were removed, a proceeding that was terminated when the judge justly held that the case was without merit because the concerned authorities were improperly served. Till date, not a single counter claim has surfaced anywhere, either in the remaining part of the public hearing or in the media, disputing El–Rufai’s assertions and submissions.

Nevertheless, for the fuller and deeper enlightenment of the public on this subject, it may be imperative to provide additional clarification which will substantially validate El–Rufai’s submission. We will do this by examining in some details, the following issues: what a court order is, the service of a court order and enforcement of court orders, including contempt proceedings. At the end, it would become abundantly clear that the hullabaloo and hue and cry about the disobedience of court orders is indeed much ado about nothing.

What is a court order?

The Law relating to the issue of court orders, including the procedures governing their service and enforcement and punishment for their disobedience is contained in the one hundred and forty – seven page document captioned “Sheriffs and Civil Process Act CAP 407 Laws of the Federation of Nigeria 1990. This is a required reading not only for legal practitioners and other judicial officers, but also for the lay man seeking knowledge and understanding of the subject. In plain, simple language, a court order is a written instruction or directive issued by the judge to a party to refrain from taking certain steps with regard to the rights and privileges of another party until the substantive issues in a matter brought before the court are disposed off.

A court order which is also called an injunction, may endure temporarily, after which it is discharged even as the case before the court proceeds, or it may be perpetual in nature, in which case it endures till the matter before the court is resolved one way or the order.

There are generally speaking two types of court orders: an order that is issued with the full view and knowledge of the parties in dispute and the order that is issued “behind the back”, so to say, of one of the parties, who may not have knowledge of such an order till he is so served. It is apparent that most of the court orders in question with regard to the FCTA are of this second type; that is, an injunction procured by individuals or groups upon notification of a certain FCTA action who then take the notice before a judge to seek immediate redress via a court order. The idea is to temporarily halt such an intended action before the matter is properly joined in a judicial process.

Service and enforcement of court orders

Many judges are mindful of the unique particulars and contexts of the orders they issue. If an order is made with the full knowledge of both parties, then its service is necessarily simplified by that very fact, because the party which will be bound by the order is already aware of the issue at stake and the particulars of the matter. However, if an order is secured behind the back of a party, then its service is of a more rigorous nature because such a party must be put in proper notice of the order.

There are two reasons for this. The first is for the party not to violate or disobey such an order, properly and personally brought before it, while the second is for such a party, in full, personal possession of such an order brought before it, to take steps, if it so desires, to quash it or free itself from its effect.

As I have already pointed out, most of the court orders secured against the FCT administration under El–Rufai are of this second type, meaning that for such an order to have any legally binding effect it must be properly served. The cardinal issue in the Sheriffs and Civil Process Act is the service of the orders of court said to have been violated. This cannot be wished away because the law is constant, in that personal service of a court order is even more mandatory where such order is obtained at the back of the opposing party, that is, without his knowledge. Such an order will only be obeyed if it is served personally on the person whose obedience is required.

Service of such order on wife, clerk or servant is and has been held to be bad service. It can be argued that the minister of the FCT is difficult to see and is surrounded by guards who will make personal service practically impossible. That may well be so but the law always has a way out. The court in such circumstance will grant an order that the minister be served through a proxy. Until this is approved the requirement of personal service is not debatable.

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It is apparent that most of the persons and groups that secured court orders behind the back of the FCTA never attempted to ensure that those orders were properly and personally served. The main procurement of court order is not enough requirements for such an order to be obeyed. Defective or bad service of a court order renders it perpetually and irredeemably worthless, and I believe that most of the orders in question, being incurably defective from the point of service, suffered this grim legal fate.

Concerning the enforcement of a court order, including procedures relating to contempt matters, it is clear that the courts are not helpless is punishing violators of their order. To take the issue of violation of court orders to a public domain would give false impression that the courts are helpless, and this would be a fatal error of judgment.

The way and manner in which this matter was canvassed at the Senate FCT Committee Public Hearing is not only dismissive of the courts which are held to be helpless in enforcing their orders; not only amounts to an ugly invasion of judicial function by another arm of government, but also seems to suggest that the courts have been permanently dissolved, with all the judges on forced vacation or retirement! In another related sense, one wonders if our distinguished Senators are conversant with the provisions of the Sheriffs and Civil Process Act, and if their investigation of the disobedience of court orders followed the clear stipulations laid out in that document.

Much Ado About Nothing

The bottom line is that most of the hue and cry about the disobedience of court orders has no legal content. The courts are there to decide when their orders are disobeyed and have the necessary robust arsenal to enforce their orders. The issue of court orders has been politicized to score morally questionable point. It is meant to paint El–Rufai in bad light, to hold him up in public ridicule and to tarnish his image and reputation. This has failed, not only by his robust defence of his tenure at the public hearing; not only by his categorical, yet to be refuted, assertion that his administration never disobeyed a single court order, but also by our exposition of the implications of obtaining, serving and reinforcing court orders, a matter that both the Senate Committee, elements within the media and those brandishing all manners of court orders, seem out of touch with.

By Bar Ali Mustapha

Mustapha is an Abuja-based legal practitioner.