Unanswered Questions for Supreme Court
Happy Belated International Women’s Day to all of us women (March 8, 2020).
BMutual Respect efore I wrote my piece of today, I gave it a lot of thought and serious consideration. This is because I have the utmost respect for the Supreme Court and its Justices, and all judicial officers too (and of course, for all my Learned Senior colleagues), and I do not want anyone misconstruing what I say. But, in the end, I concluded that some things cannot be left unsaid. Just like Honourable Chukwudifu Akunne Oputa (of blessed memory) who himself was a respected Justice of the Supreme Court, renowned for his wisdom, eloquence and prose, I do not think Supreme Court Justices or anybody else for that matter, are infallible (Adegoke Motors v Dr Babatunde Adesanya 1983 3 N.W.L.R. Part 109 250 at 274) - only God is. I was therefore, taken aback when I heard some of the comments made by Honourable Justice Amina Adamu Augie JSC, who delivered the lead decision in the application for judicial review in the Bayelsa case - Senator Douye Diri & Anor v Biobarakuma DegiEremienyo & Ors SC.1/2020. To state that “No force on earth can force the court to change its decision”, gives the impression, not just of finality (we know that the Supreme Court is the highest and final court of the land), but infallibility and omniscience.
To refer to Learned Senior Counsel in such a scathing and undesirable manner: “With tears in my eyes, I feel sad that Senior Counsel in this case would ever bring this kind of frivolous application during my lifetime”, is as unacceptable as those who go out in public to vilify and insult Supreme Court Justices, call them unprintable names and attack their homes, when they deliver judgements which do not favour them. ‘Awa lagba ni le o’ (we have elders at home). I even wondered why the floodgate of tears which were opened during the Bayelsa State review decision, did not flow to that of the Imo
State, in which the dry eyed Honourable Justice Chima Centus Nweze JSC, gave a dissenting judgement! So much for infallibility!
Chief Afe Babalola CON, OFR, SAN, is an accomplished, respected Lawyer and Educationist, over 90 years old. I do not think he would have left his house in Ado Ekiti to go to Abuja to appear in the Bayelsa matter, if he did not believe that he had a legal point to advance, whether rightly or wrongly, a point which was not even considered on its merit by the Apex Court. Ditto for Chief Wole Olanipekun OFR, SAN, a former President of our esteemed NBA, also accomplished and well respected, especially for his intelligence. His case was also not considered on its merits, nor was it even distinguished from that of Chief Babalola, even though they sought to advance different legal points! To treat them with such discourtesy and then fine them, is objectionable. We are all stakeholders in the justice delivery system, and we must accord ourselves reciprocal respect at all times.
I stand by my earlier analysis in my piece of 18/2/2020, ‘Bayelsa: A Vote for the Supreme Court Decision’, that the decision in the Bayelsa case (Supra) was sound, at least to the extent that it had to disqualify the Lyon ticket on the basis of it being invalid, due to the Deputy Gubernatorial candidate’s multiple identity issue. According to the grundnorm, the ticket is a joint one, meaning that the disqualification of one candidate, is automatically the disqualification of both. My analysis was based on my perusal of relevant constitutional provisions - that is, Sections 187 and 182 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). Those provisions, are clear and unequivocal. And, if the Supreme Court had handed down any other decision to the contrary in the past, I believe that, on this issue of disqualification, it corrected itself in the Bayelsa case. For instance, as a Notary Public myself, I found it bizarre, ludicrous and extremely laughable that Mr Degi-Eremienyo sought to validate the name on the secondary school certificate which he presented to INEC, with a document purportedly averred to in the presence of an ‘unnamed Notary Public’! Obviously, an invalid document. Notarising is a personal act where the deponent swears before the Notary Public, who then identifies his/herself on the document, signs and seals the document with his/her seal. For the avoidance of doubt, I even have a stamp which bears my name and address, which I also append adjacent to my signature.
Reasoning for the Bayelsa and Imo Judicial Review Applications’ Decisions
Having said that, with all due respect to the Supreme Court, I question the reasoning behind the decisions in both the Bayelsa and Imo judicial review cases, obviously except the dissenting decision of Honourable Justice Nweze JSC, for several reasons.
First, Section 235 of the Constitution provides inter alia that “...... no appeal shall lie to any other body or person from any determination of the Supreme Court”.
It is elementary that the Supreme Court itself is excepted or exempted here, as it cannot be included in the ‘any other body or person’, and that this provision does not preclude the Apex Court from reviewing its decisions. Therefore, to rely on Section 235 as the omnibus basis for deciding that the Supreme Court lacks the jurisdiction to review its decisions, in my opinion, cannot be correct, with all due respect.
In my piece ‘Supreme Court Review: To Be or Not to Be’, I cited the Supreme Court case of Iteogu v LPDC 2018 LPELR-43845 in which the Apex Court held that, it has the discretion to set aside its own judgements in exceptional cases (which I believe is also the position in Ghana), and enumerated some of the circumstances in which it can review its judgements. For instance, if the Court has been misled, or the judgement is not based on the facts of the case or law, or the judgement is perverse or visits injustice, the decision can be reviewed. The results declared by a third party and not INEC, which ended up being higher than the number of accredited voters and the permanent voters cards distributed by INEC in Imo State, with all due respect, doesn’t sound quite right.
While I cannot dream of telling the Supreme Court how to write its judgements, as a practicing Lawyer, I would have found it acceptable if the Supreme Court had given cogent reasons why, in its view, the Bayelsa and Imo cases did not fit into any of the categories enumerated in Iteogu v LPDC (Supra), to qualify for review, instead of coming under the faulty premise that it lacks the jurisdiction to review its decisions. Do we now disregard Iteogu’s case? Or Stanbic IBTC Bank Plc v L.G.C. Ltd 2020 2 N.W.L.R. Part 1707 at 1-17?
Second, if for example, the Supreme Court upheld the decision of the lower courts sentencing someone to death, and while the convict was on death row, new evidence and analysis of some biological samples by the Lagos State DNA Forensic Lab emerge, proving incontrovertibly the innocence of the convict who had maintained his guiltlessness all the while, insisting that he was in Abakaliki and nowhere near the murder scene in Lagos at the time the offence was committed, and therefore, could not possibly have committed the murder, will the Supreme Court not set aside its previous conviction based on the fact of this new evidence? Or will it maintain that, ‘no force on earth’ can make it change its decision, because by virtue of Section 235 of the Constitution it lacks the jurisdiction to review its decisions, and therefore, send an innocent man to the gallows? I think not.
Third, it is a source of worry when legal practitioners are no longer able to advice clients on the possible outcomes of their cases, based on established law and precedent, because the courts have become unpredictable with their decisions!
Fourth, being not just the final court of adjudication in the land, but a policy making court, it behoves on the Supreme Court to create sound judicial precedent, because of the doctrine of stare decisis, that is, courts are bound to follow decisions of the Supreme Court in cases which have similar facts and diegesis. Where a mistake may have been made, it should be corrected, to avoid the creation of a string of bad decisions which may follow.
Conclusion In conclusion, while all reasonable people believe that it is unacceptable for Politicians or anybody else to seek to rubbish the Supreme Court, or seek to convert it to a Magistrates or High Court where appeals lie from to higher courts, by filing applications for incessant judicial reviews because the court did not decide in their favour and they want victory at any cost, in exceptional cases in which justice demands that there be a review, there must be. As the saying goes, justice must not only be done, it must be seen to be done. After all, ‘atrium autem quod essentia facere iustitiam’ - the essence of a court is to mete out justice.
“TO REFER TO LEARNED SENIOR COUNSEL IN SUCH A SCATHING AND UNDESIRABLE MANNER: “WITH TEARS IN MY EYES, I FEEL SAD THAT SENIOR COUNSEL IN THIS CASE WOULD EVER BRING THIS KIND OF FRIVOLOUS APPLICATION DURING MY LIFETIME”, IS AS UNACCEPTABLE AS THOSE WHO GO OUT IN PUBLIC TO VILIFY AND INSULT SUPREME COURT JUSTICES ....... ”