Meeting the Supreme Court Half Way
The general aversion of most legal systems to repeated and protracted litigation is such that, courts may not only throw out claims subject to res judicata or issue estoppel, but also claims in respect of issues that were never litigated upon before, if they could have been properly brought in earlier proceedings. Such actions or issues may be struck out as an abuse of process; although, unlike res judicata, the jurisdiction is discretionary. It is a rule of public policy based on desirability that litigation should not drag on forever, and a Defendant should not be oppressed by successive suits. However, in the recent Supreme Court case of Senator Hope Uzodinma & Anor v Rt. Honourable Emeka Ihedioha & 2 Ors, the Apex Court in a blaze of publicity which has probably outshone all other electoral cases decided upon this year, was faced with the dilemma as to whether or not to set aside as a nullity, its own judgement perceived as perverse and delivered on the 14th of January, 2020 emanating from an appeal and cross appeal of a decision of the Court of Appeal below.
The Imo State Supreme Court Judicial Review Decision
The Supreme Court in a majority judgement of 6 to 1, held that it lacked powers to sit on appeal over its own judgement. The Court held that, the application by Ihedioha’s legal team asking the court to set aside its judgement of 14th January, 2020 on the grounds that it is a nullity, was an invitation for it to sit on appeal over its own judgement, which the Court could not do. Ihedioha and his legal team had, in an application brought before the Apex Court, prayed the Court to reverse its judgement removing him as Governor of Imo State, and asking the Independent National Electoral Commission (INEC) to issue a Certificate of Return to Senator Uzodinma. Ihedioha and his legal team faulted this decision, on the ground that the judgement was a nullity since it was obtained by fraud and deceit.
Ihedioha in an application by way of motion on notice filed by his Lawyer, Chief Kanu Agabi (SAN), said the judgement should be set aside, because the Supreme Court was misled into arriving at the decision that removed him from office. They claimed that Senator Uzodinma presented his case without the record of accredited voters, and that this misled the Court. In a majority ruling delivered by Olukayode Ariwoola JSC, the Supreme Court held that, granting the request of the applicants would open the floodgates by parties to all kinds of litigation. The Supreme Court also said that by the provisions of Section 235 of the 1999 Constitution, its decision on any judgement based on merit is final and shall not be reviewed once delivered under any guise, except for clerical errors.
The Supreme Court also stated that other than by Order 8 Rule 16 of the Supreme Court Procedural Rules 2015, the general law is that it has no power to alter any judgement, and that such judgment once delivered on merit, shall remain forever.
Ariwoola JSC said, “Certainly, this Court has no inherent power to grant what is being sought, it is beyond the powers of this Court.
There is no constitutional provision for this Court to review its own judgements.To say the least, this Court has no competence and lacked power to sit on appeal over its own decision”. He further stressed that finality of Supreme Court decisions is also entrenched in the Constitution, and its inherent power can only be invoked where there is a law to do so. He then stated that “This Court cannot, under any guise, alter any judgement under any inherent power, as doing so would bring the Court into disrepute and ridicule. The application is liable for dismissal, and is hereby dismissed for want of jurisdiction
and competence”. Each party was ordered to bear its own costs.
Essentially therefore, a decision of the Supreme Court is final. This is so, unless perhaps an Act of National Assembly reverses it.
The Imo State Governorship tussle was first initiated at the State Election Tribunal, which went on appeal to the Court of Appeal before ending up in the Supreme Court. The Supreme Court sat upon the appeal and delivered its verdict on 14th January, 2020, thus completing the appeal process, but if the Supreme Court regards that decision as something from which it cannot ‘depart’ what cause of action remains? It is important to note that, the Supreme Court’s self-granted power to ‘depart’ when deciding an appeal presupposes a case actually in being which has reached the stage of an appeal to the Supreme Court, but in this particular case there was no longer any case in being, since the case in question had already been completed by Supreme Court’s decision a few weeks earlier. A lis before the Supreme Court or before any other court for that matter, cannot at one and the same time be a previous case to be ‘departed from’.
The Stanbic IBTC Supreme Court Decision
What then is the answer to this conundrum? It perhaps lies in the words of Abba Aji, JSC in the Supreme Court case of Stanbic IBTC Bank Plc v L.G.C. Ltd (2020) 2 NWLR
(Pt. 1707) 1 – 17 which was handed down earlier this year. Abba Aji, JSC held inter alia that the Supreme Court has the power to set aside its judgement, and rehear same under the following circumstances:
(i) Where there is a clerical mistake in the Judgement or Order.
(ii) Where there is an error arising from an accidental slip or omission
(iii) Where there arises the necessity for carrying out its own meaning and to make its intention plain.
(iv) Where any of the parties obtained judgement by fraud and deceit.
(v) Where it is obvious that the Court was misled into giving the decision under a wrong belief that the parties consented to it.
(vi) When the judgement was given without jurisdiction.
(vii) Where the procedure adopted was such as to deprive the decision or judgement of the character of a legitimate adjudication.
(viii) Where the writ or application was not served on the other party, or there is denial of fair hearing.
(ix) Where the decision/judgement is contrary to public policy and will perpetuate injustice.
If this is indeed, the most recent position of the law, why the variance with Ihedioha’s case? Why a departure from the guidelines laid down in Stanbic IBTC Bank Plc v L.G.C. Ltd (Supra)?
Petition
In this case, an aggrieved party was said to be at liberty to apply to the Supreme Court for its jurisdiction to invoke its inherent powers to be exercised. Regardless of this fact, if we are to be critical of Ihedioha’s legal team, their application to the Supreme Court, even if they followed the above guidelines and criteria in Stanbic IBTC Bank Plc v L.G.C. Ltd (Supra) should not have been, in my humble opinion, by way of Motion on Notice. An application by way of Motion on Notice presupposes that there is a case in being, that there is lis before the Court. Unfortunately, there was no longer a lis before the Court. The Supreme Court Justices delivered their judgement on 14th January, 2020 and as such, became functus
officio. Why then would Ihedioha’s legal team attempt to invoke the inherent jurisdiction of the Supreme Court, by way of Motion on Notice? By adopting this procedure, they made their case a lot more complex, and at same time, made it massively more difficult for the Supreme Court to look upon their application favourably. In truth, the application was couched as if the Supreme was rehearing the case, and no such jurisdiction exists in law!! What Ihedioha’s legal team ought to have done instead, was to Petition the Supreme Court to invoke their inherent powers of jurisdiction. In petitioning the Supreme Court, they would, of course, still list the grounds within the petition for invoking the Supreme Court’s inherent jurisdiction. Furthermore, in adopting this approach the Supreme Court wouldn’t feel as if they were rehearing an appeal in which they had already delivered judgement. From a tactical viewpoint therefore, Ihedioha’s legal team’s approach before the Supreme Court gave the impression that they were rearguing their case, and that the Supreme Court was being asked to sit on appeal over its own judgement. This impression was unmistakable, from the ruling of Ariwoola JSC
Order 8 Rule 16 - Through No Fault of the Litigant
Secondly, it also needs to be made clear that, the Supreme Court other than in circumstances provided for under the slip rule and outlined under Order 8 Rule 16 of the Supreme Court Rules 2015 will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. See R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet
Ugarte (No 2) (1999) (1 All ER 577). In this English Common Law case, upon a decision of the House of Lords allowing the appeal of the Commissioner of Police of the Metropolis and the Spanish Government against the decision of the Divisional Court to quash the warrant referred to, it almost at once became known to the Senator and his Lawyers that a Law Lord who had participated in the decision on 25th November, 1998 was closely connected with the charity, Amnesty International. The Law Lord in question, was Lord Hoffmann. Lady Hoffmann had been working in the international secretariat of Amnesty International, since 1977. Lord Hoffmann himself, had in recent years, become a Director of Amnesty International Charity Ltd. The case itself was decided on a split decision of 3 to 2. Lord Hoffmann was one of the majority, though he did not deliver a judgement of his own, but simply stated that he agreed with the majority speeches of Lord Nicholls and Lord Steyn. The House of Lord’s dilemma was that if his decision could not stand, obviously the decision of the House itself could not stand, because, apart from anything else, there was no longer a majority for reversing the Divisional Court’s decision. The aggrieved party in this case argued that, through no fault of theirs they had been subjected to an unfair procedure. The unfair procedure alleged was the participation in the House’s 3:2 decision of a Law Lord, who was not truly impartial.
When we say through no fault of a party, what we are in fact referring to is that the petitioning party could not possibly have argued this particular point at the initial hearing.This applies in public law, as well as in private law cases, and is therefore, equally important in constitutional law and electoral petition cases. In this regard, the petitioning party would need to demonstrate to the Court that, this was a point that could not have been taken in the initial proceedings before the Court. If the Court is not convinced that the point could not have been taken at the initial hearing, the petition asking the Supreme Court to invoke its inherent jurisdiction after delivering judgement on a case would fail, as this can only be deemed to be a rehearing of the case, and that is precisely what the Supreme Court would never do, whether or not the initial judgement handed down is flawed or not.
A good example of such a situation would be in a murder trial where a man is condemned to death for murdering his wife, only to subsequently find that the said wife is alive and well, but living with another man. It would be absurd for any Court not to invoke its inherent jurisdiction and listen to the surrounding circumstances as to why the execution of the man who allegedly killed his wife should be put off, but do these circumstances apply in a Ihedioha’s case? These are the issues we need to carefully address and review, before we castigate the Supreme Court.
Finally, it is noteworthy to point out that, a major aspect of Ihediora’s application for a review of his case before the Supreme Court was based on alleged fraud and deceit committed by Senator Hope Uzodinma, in tampering with the Imo State Gubernatorial Election result sheets. The Supreme Court however, are not really competent to handle issues of fraud or deceit, in the sense that evidence usually has to be led to prove such allegations. In effect this would mean that the Supreme Court would ordinarily have to remit the case back to the Election Tribunal for trial on the merits of these allegations, but the time limits imposed on the Election Tribunal (180 days) and (60 days) for Appellate Courts under the Electoral Act 2010 to dispose of any electoral case that comes before them, means in effect that the Supreme Court are helpless in reality to effectively handle issues of fraud and deceit, in as long as the time limits imposed by the Electoral Act 2010 are still in force.
Conclusion
An application to the Supreme Court for it to invoke its inherent powers and rehear a case in any situation similar to that of Ihedioha, ought to be by way of petition. The circumstances under which we can invoke the Supreme Court’s inherent powers is by no means open ended, neither is it wise to simply trawl through all the possible grounds for invoking such powers almost as if it’s a re-argument of the initial appeal. Such an approach, can only put the Supreme Court off. In an age where scholarship and analysis is now rare, a simple and concise approach as in the English Common Law case of Pinochet (Supra) might just do the trick, because whether or not the initial judgement of the Supreme Court is perceived to be flawed or not, the overriding public policy of putting an end to litigation would always outweigh all other arguments, particularly if the opportunity to properly present and argue a case was not by any means hindered in the initial proceedings before the Court. The Electoral Act 2010 also needs to be amended, because whether we like it or not, it indirectly imposes statutory limitations on the inherent powers of the Supreme Court, in constitutional and electoral matters to dispense justice.
“IN TRUTH, THE APPLICATION WAS COUCHED AS IF THE SUPREME WAS REHEARING THE CASE, AND NO SUCH JURISDICTION EXISTS IN LAW!! WHAT IHEDIOHA’S LEGAL TEAM OUGHT TO HAVE DONE INSTEAD, WAS TO PETITION THE SUPREME COURT TO INVOKE THEIR INHERENT POWERS OF JURISDICTION”