Nov 18, 2018

Disrespect for Orders of Courts: The Laker Airways Case and Some Lessons for Nigeria | Orji Uka


Donald J. Trump, the 45th President of the United States of America can be accused of a number of things, but disrespect for, or disobedience of, orders of court is not one of them. A very recent case in point is the no love lost between him and CNN’s Chief White House Correspondent, Jim Acosta which came to a head last week during a feisty press conference held by Mr Trump after the November 2018 mid-term elections. The saga culminated in the revocation of Jim Acosta’s White House press pass for allegedly using inappropriate force to resist a White House intern’s attempt to take a microphone away from him.



On Friday 16th November 2018, a US Federal Judge, Timothy Kelly in a preliminary ruling in a suit filed by CNN and Acosta, found that Acosta was not provided with the due process required to legally revoke his press pass and therefore ordered the White House to reinstate the press pass. On the same day of the ruling, the White House Press Secretary, Sarah Huckabee Sanders issued a statement in response to the ruling which read in part, “in response to the court, we will temporarily reinstate the reporter’s hard pass”. Just like that.
This is not the first time a court in the United States has ruled against the Trump administration and they promptly obeyed while also exploring the only constitutional avenue to challenge unfavourable rulings, which is to appeal to the higher courts. Earlier in the life of the administration, the courts in separate rulings struck down, in whole or in part, the so called ‘Muslim travel ban’ imposed by the Trump administration. Before the Supreme Court upheld one of the versions of the travel ban in June 2018, separate Federal Courts had held that the travel ban was unconstitutional in that it was, “tainted with animus towards Islam”. Despite the fact that [whether rightly or wrongly] the issue of imposing restrictions to immigrants entering the United States is very close to the President’s heart and those of his supporters, in all the instances where the lower courts injuncted or struck down the bans, the Trump administration either complied with the orders or tweaked the ban to conform with the rulings. Guess what, the heavens did not fall. It is also not the first time that Governments in other civilised societies have obeyed unfavourable orders of courts.
Regrettably, this is a stark contrast to the attitude of the successive executive arms of Government in Nigeria to judgments and orders of courts. While previous administrations, military and civilian (particularly under former President Olusegun Obasanjo) disobeyed orders of courts at various times in the past, the current administration of President Muhammadu Buhari has to go down in history as the most notorious democratic government in Nigeria in terms of wanton disregard for judgments and orders of courts.
There is no case more symptomatic of this attitude than the case of Ibrahim Yaqoub El-Zakzaky the foremost Shi’a Muslim cleric in Nigeria and the head of Nigeria’s Islamic Movement. Following a clash in December 2015 between the Shi’ites Group and the Nigerian Army that resulted in the death of hundreds of the group’s faithfuls, El-Zakzaky was ultimately arrested and incarcerated alongside his wife by the Nigerian authorities and they have remained behind bars till date. The Federal High Court in Abuja ordered their unconditional release and berated the Government for violating their fundamental rights. Rather than comply with the orders of court, the Nigerian Government has continued to advance different reasons, most of which border on the absurd and ridiculous to justify their continued defiance and disrespect for the courts. Sadly, this is neither an isolated case nor an exception to the rule.
There is also the case of the former National Security Adviser, Sambo Dasuki who was arrested on multiple charges of mismanaging public funds and charged before different courts in Abuja. Mr Dasuki remains in custody in spite of consistent and repeated orders of the different courts admitting him to bail. Even the judgment of the ECOWAS court ordering his release was disregarded. It has therefore become a signature of the Buhari administration to disregard and disobey lawful and valid court orders in the name of fighting corruption. Things are so bad that the human rights advocacy group, Socio-Economic Rights and Accountability Project (SERAP) in June 2018, petitioned the United Nations to prevail upon the Buhari administration to put a stop to the wilful disobedience of court judgments. According to them, the Government’s notorious habit of picking and choosing court judgments to obey would ultimately put the rule of law under siege.
One of the questions that must be asked is whether the Nigerian Government appreciates the adverse consequences of their willful disobedience of orders of Nigerian courts. Do they truly expect other countries to recognize and/or enforce Nigerian judgments for which they treat with disdain? Have they ever paused to consider the extent to which the governments of other civilized nations go to accord or demand respect for the judgments of their courts? This brings me to a consideration of the consolidated cases of British Airways Board v Laker Airways Ltd. and Others; British Caledonian Airways Ltd v Laker Airways Ltd. and Others; and Laker Airways Ltd. and Another v Secretary of State for Trade and Industry [1985] A.C. 58.
These cases involved different airlines including Laker Airways which went into liquidation as a result of the alleged predatory pricing activities of British Airways and other airlines. Lakers Airways then brought anti-trust proceedings against the other airlines before a US court. In response, the airlines brought proceedings in England to obtain an ‘anti-suit injunction’ to restrain Lakers Airways from continuing the US proceedings. Although the English High Court first granted the interim anti-suit injunction before rescinding it, the case ultimately got to the UK House of Lords, then the highest court in the United Kingdom. On its part, Laker Airways also obtained an injunction precluding the defendants from bringing proceedings in England to obtain antisuit injunction against it.
Acting on the basis that the US proceedings constituted an invasion of UK sovereignty, the British Secretary of State made an order prohibiting British airlines flying to the United States from giving the US authorities any documents or information relating to the case or from otherwise complying with any order under the US antitrust law made in the case. The case was ultimately settled through diplomatic channels when then British Prime Minister Margaret Thatcher intervened and requested the then US President, Ronald Reagan to drop an investigation being carried out by the US Department of Justice. Nevertheless, the case signified the extent to which the governments were willing to protect their judiciaries and the sanctity of their judgments and orders. It is partly because of cases like these that London has over the years served as the epicentre for the global financial market, while the English legal system serves as the dispute resolution capital of the world. Unsurprisingly, this has significant positive effect on the legal profession in England in particular and the economy of the United Kingdom in general.
Cases like these leave you wondering whether Nigerian governments have what it takes to go the same length to defend a judgment of Nigerian courts. The irony is that in July 1985 when the Laker Airways judgment was delivered by the UK House of Lords, the Nigerian Head of State was a certain Major Gen. Muhammadu Buhari. Unfortunately, when the activities of this administration are chronicled for the next generation, a chapter must be reserved for the wanton disregard for judgments and orders of court. What is worse is that the society appears to have accepted the status quo as normal. In the past, groups like the Nigerian Bar Association understood that the disobedience of court orders will result in the erosion of public confidence in the judiciary, and that being the case, the legal profession will be the direct victim and so they rose to condemn and take actions against disobedience of court orders. Why the group is mum today stretches credulity.
One of the inevitable conclusions that must be drawn is that this Government is unable to see beyond its nose and take cognizance of the adverse consequences of their action. For a government that has made the attraction of foreign investments and the improvement of the country’s ease of doing business ranking a cardinal policy thrust, the actions of the Buhari administration amount to cutting one’s nose to spite one’s face. And it is all the more ironic that this Government has arguably the largest number of lawyers in its ranks, including at least six Senior Advocates of Nigeria in one capacity or the other, including the Vice President. It simply beggars belief.
Orji is a Nigerian born legal practitioner currently undertaking a Masters Degree in International Business Law

Source: Medium.com 
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