Chukwudi Nweje
Last Wednesday, February 26, a seven man-panel of Supreme Court justices led by Justice Sylvester Ngwuta dismissed a petition filed by the All Progressives Congress (APC) and David Lyon, the party’s candidate in the November 16, 2019 governorship election for the apex court to reverse a February 13,2020 judgement that disqualified Lyon as Governor-Elect of Bayelsa State.
A five-man panel of the Supreme Court led by Justice Mary Odili, had disqualified Lyon as Governor-Elect of the state hours to his scheduled inauguration. According to the court, Senator Biobarakuma Degi-Eremieoyo, the Deputy Governor-Elect presented a forged certificate to the Independent national Electoral Commission (INEC).
Recall that a Federal High Court in Abuja had on November 12, 2019, four days to the November 16 governorship election disqualified Degi-Eremieoyo over the said forged certificate. However, the APC and Degi-Eremieoyo approached the Court of Appeal which vacated the Federal High Court verdict and cleared the joint ticket of Lyon and Degi-Eremieoyo to contest the November 16 governorship election.
However, an apex court panel led by Justice Odili set aside the Court of Appeal judgement and reinstated that of the Federal High Court. The court held that since Lyon and Degi-Eremieoyo shared a joint ticket, the disqualification of Degi-Eremieoyo invalidated their nomination by the APC ab initio.
Section 187 (1) to (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is explicit that “(1) In any election to which the foregoing provisions of this part of this Chapter relate a candidate for the office of governor of a state shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as governor in accordance with the said provisions. (2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of governor shall apply in relation to the office of Deputy Governor as if references to governor were references to Deputy Governor.”
The Justice Ngwuta panel which reviewed Justice Odili’s judgement dismissed APC and Lyon’s application for a review in a unanimous judgement for lacking merit and that the apex court lacks the jurisdiction to review its own judgement. Justice Amina Augie, a member of the panel also noted that, “No force on earth can force the court to change its decision.
The apex court has also fixed tomorrow, March 2, 2020 to hear another application brought by the Peoples Democratic Party (PDP) and Emeka Ihedioha for a review of the January 14 judgement of a seven-man panel of the court led by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, which sacked Ihedioha as Governor of Imo State and awarded victory of the 2019 governorship election in Imo to Senator Hope Uzodinma.
These are not the only two applications before the apex court for review of judgements passed by justices of the court. Also lined up for review are other petitions filed by the PDP and the APC. Nearly four months after the apex court confirmed the election victory of President Muhammadu Buhari and the APC over former Vice President Atiku Abubakar and the PDP in the 2019 presidential election, the PDP is seeking a review of that judgement. The party also seeks a review of the judgements on Kano, Katsina, Kaduna and Osun gubernatorial elections.
The APC on its part, has filed an application for review of the 2019 pre-election judgement of the apex court that disqualified the party from contesting for elective positions in Zamfara State. Daily Sun recalls that the APC did not field candidates for any elective position during the 2019 elections in Zamfara because the Supreme Court and the Sokoto division of the Court of Appeal had delivered judgements to the effect that the party did not conduct valid primary election to nominate candidates for any elective position in the state.
As the Supreme Court battles to deal with applications for review of existing judgements, analysts have expressed divergent views on whether there is need for reversal and what the consequences of doing so will be on the judicial and legal system. The Supreme Court is not just the highest Court of Justice in Nigeria, it is the last court of arbitration and its judgements are final and is binding on all parties to litigations that come before it.
To some analysts, the applications for review will afford the apex court the opportunity to correct mistakes that may have been made in the original judgement, but for others, the applications are merely a power tussle between the PDP and the APC to outdo each other in a struggle of which party will control more states.
Analysts have also called for caution in the ongoing reviews as the outcome may shake the foundations of the apex court as ‘the temple of justice.’
Correcting flawed judgements
Among those who believe the applications for review of some of the judgments of the apex court is necessary is Martins Onovo, a former National Chairman of the National Conscience Party (NCP), who also contested the 2015 presidential election on the platform of the party.
Onovo argued that the applications for review of judgements of the apex court will afford the court opportunity to possibly correct badly delivered judgements. He cited the example of Imo State judgement, which he described as a travesty that must be reversed.
He said, “There are things in that judgement that on the face seem perverse. According to the results released by the INEC, the APC came a distant fourth. Again, the so-called 380 polling stations that were omitted were tended to by a policeman, not by an INEC agent. These results were rejected by the Governorship Election Tribunal and the Court of Appeal. The Supreme Court has to set up another panel of judges who were not part of the first, using their seniority as the basis for selection. If they agree with the first panel, we will accept it. We know what happened with the composition of the first panel. The new panel should be selected strictly on the seniority of judges that did not participate in the first panel, that way, we will know nobody influenced it.”
The 2019 presidential candidate of the NCP, Dr Yunusa Tanko, shares similar view. He said the fact that people are asking for review of some of the judgments delivered by the apex courts is an indication that they may not have been as forthright as expected.
He said, “Quite frankly, it means that our judicial system is polluted and due diligence is put to dustbin. To simply even ask for review shows that various interest has come to play in the ruling in the first place and people are not happy. I must also add that people are starting to lose faith in the system that must be seriously protected by all. This is because the judiciary is the last hope of the common man. And the political party rushing for the review are only trying to gain more or protect their strong base in anticipation for the 2023 elections. It is my sincere hope that the Supreme Court will be more decisive and firmer in its pronouncement so as not to be taken for granted.”
Onovo agrees that perhaps due diligence was not taken in some of the apex court’s judgements. Laying more emphasis on the Imo State case, he added: “Normally, the Supreme Court does not contradict consistent judgement. The Election Petition Tribunal rejected results from those polling units (polling areas awarded to Uzodinma), the Court of Appeal also rejected it, why did the Supreme Court accept it? So, the implication is that the Supreme Court is discrediting the judiciary.”
Threat to sanctity of judiciary
Some analysts have argued that the volume of application at the apex court for review pose a threat to sanctity of judiciary and the doctrine of finality of judgement of the Supreme Court.
A lawyer, Dr Kayode Ajulo said the applications for the apex court to review its decision are “quite worrisome, disappointing and poses a threat to the doctrine of finality of judgement of the Supreme Court.”
He said, “It is disappointing in the sense that the parties involved are represented by eminent members of the bar who are familiar with the principle of law guiding appellate jurisdiction of the Supreme Court. It is worrisome in the sense that the grant of this strange indulgence may open a window of uncertainty and in fact corruption of the age-long legacy of the Supreme Court as enshrined in the doctrine of finality of judgement of the court and the desirability of putting an end to litigation.”
He further said that while the verdict of the apex court, may like other human contraptions, suffer imperfection, the judgement of the court remains final.
“In fact, in the celebrated case of Adegoke Motors v. Adesanya, Oputa JSC, of blessed memory, stated in clear terms that while reiterating the finality of the decision of the Supreme Court on issues submitted to it for determination that like other human contraption, the justice system may be susceptible to minor imperfection in some material particular, there must still be an end to litigation”, he added.
According to him, what is presently playing out in the several applications for a review of judgements is a ploy to ridicule the judiciary. “The only interpretation which may be given to the scenario which is currently playing out is that it is an attempt to rewrite the law, cow the Supreme Court to the ill-conceived public opinion sentiment which is currently being branded out in both the print and the social media by some persons; and an attempt to ridicule the Nigerian justice system”, Ajulo said.
New evidences not allowed at appeals
Ajulo further said that courts of appellate jurisdiction are meant to review the merit of facts presented at the lower court and not for presenting fresh evidenced.
He said, “One thing is clear in the circumstances of these application for review. There is a seeming attempt by counsel to resubmit issues which have been or ought to have been submitted to the court for determination but which was not. The law neither contemplates nor envisages a situation where a party who has every opportunity to submit to the court all issues arising from the facts of his case but failed to do so, to now bring an application to the court to resubmit those issues under the guise of an application for review contrary to the age-long established principle of law as established in decided cases. This, in my considered opinion, is what the influx of the application for review is all about and I still maintain the position that there must be an end to litigation and that end is reached upon the pronouncement of the judgment of the Supreme Court.”
Supreme court can’t reverse itself
In what seems to support the positions of the Supreme Court panel that reviewed the APC and Lyon’s application on Bayelsa, Ajulo argued that the Supreme Court cannot reverse its judgements. Justice Ngwuta in his verdict said the apex court “lacks the jurisdiction to review its own judgement”. Justice Augie, who was on the panel put it more explicitly that, “No force on earth can force the court to change its decision.”
Ajulo further said, “it is also important to state that the Supreme Court has the inherent powers to set aside its decision as decided in a long line of decided cases where there is fraud, mistake and where the decision is reached in the absence of or in excess of jurisdiction. All these instances have already been covered by the decision of the Supreme Court in the recent case of NBA v Iteogu.
“In the entire gamut of the Nigerian law, it is not provided anywhere that the Supreme Court can review its decision but rather correct mistake under the slip rule as provided in Order 8 Rule 16 of the Supreme Court Rules.”
Review vs appeal
According to Ajulo, review and appeal of cases are two different issues that should not be confused.
“A distinction needs to be made between a review and an appeal. An appeal is a judicial examination of the decision of a lower court by a higher court. While a review is re-examination of a case previously decided with a view to correct a particular mistake and not an avenue to correct a view or substitute or abandon an earlier position. It is necessary to put it on record the law did not provide for review but rather correction pursuant to the slip rule as stated in Order 8 Rule 16 of the Supreme Court Rules”, he said.