On Thursday May 29, 2019, Chairman of the Presidential Advisory Committee on Anti-corruption (PACAC), Professor Itse Sagay (SAN) lodged an unexpected attack on the Supreme Court for the judgements it delivered in the disputed All Progressives Congress (APC) primaries in Rivers and Zamfara states.
The supreme Court had on February 12, 2019 finally struck out all pending appeals challenging the judgement of the Port Harcourt Division of the Federal High Court which barred the APC from fielding candidates in the 2019 general elections.
Justice Olabode Rhodes-Vivour led 5-man panel followed the apex court judgement of February 8, 2019 which upheld the order of a Federal High Court, Port Harcourt, nullifying the APC primaries in Rivers State.
The trial court had held that the primaries were held in disobedience to a court judgement barring the party from conducting congresses pending the determination of a suit filed by 22 aggrieved members of the party.
Again, Supreme Court on May 24, 2019 nullified the elections of all the candidates of the APC in Zamfara State in the 2019 general elections.
Delivering a unanimous judgment of the five-man panel led by the Acting Chief Justice of Nigeria, Justice Tanko Muhammad, the apex court declared the first runners-up in the 2019 general elections in the state as the winners of all the posts earlier declared to have been won by the APC and its candidates.
Justice Paul Galinje, who read the lead judgment upheld the decision of the Sokoto Division of the Court of Appeal to the effect that the APC did not conduct any valid primary election and as such had no candidate for any of the elections in the state.
He described the votes polled by the APC candidates in the elections as wasted, adding that the party and the candidates with the second highest votes and the spread in the various elections were the valid winners.
In other words, the 36 positions including governor and his deputy’s seats, 3 senate, 7 Reps members and 24 state House of Assembly seats were lost in one swoop to the PDP by the APC.
Professor Sagay however described the separate Supreme Court judgements, although in pari material, or on the same subject matter (appeal) which is the invalid conduct of primary elections in Rivers and Zamfara states by the APC at the build up to 2019 general elections, as ‘’travesty of justice’’.
Professor Itsejuwa Esanjum Sagay (SAN), simply known as Professor Itse Sagay is a distinguished legal scholar, Professor of Law and human rights activist and the former Dean of the Faculties of Law at Universities of Ife and Benin respectively, a constitutional law expert and Senior Advocate of Nigeria. He is unarguably fast becoming the greatest critics of institutions and individuals not courting President Buhari’s political interest.
The Delta state (Ugheli) born and Supreme Court of Nigeria Amicus Curia was appointed by President Muhammadu Buhari in August 2015 as the Presidential Advisory Committee on Anti-corruption Chairman to advice his administration on prosecution of the war against corruption and the implementation of required reforms in Nigeria’s criminal justice system.
Sagay began the scathing remarks on institutions or individuals while serving under the Buhari administration when on April 16, 2016 he delivered a paper titled “A Farewell to Election Petitions”, which he referred to as ‘’a Summary of his review of the Supreme Court decision in the Rivers State Governorship Case of Wike v. Peterside.
Wike Vs Peterside Judgement Attack
Supreme Court heard and delivered judgement in appeal number SC.1002/2015, between Wike Ezenwo Nyesom and Hon. (Dr) Dakuku Adol Peterside & 3 Ors on January 27, 2016; with reason for the judgement subsequently given on February 12, 2016.
In his lead judgement, Justice Kudirat Motonmori Olatokunbo Kekere-Ekun dismissed the concurrent judgments of the Tribunal and the Court of Appeal and consequently return Nyesom Wike as the duly elected Governor of Rivers state.
‘’The generalized evidence led by mobile policemen, officers of the Department of State Security and Military Officers were against unidentified individuals and unidentified PDP thugs.
‘’For the evidence of disruption, violence and corrupt practices to warrant the nullification of the entire election in Rivers state, the 1st and 2nd respondents had to first prove the non-compliance polling unit by polling unit, ward by ward. They must also establish that the non-compliance was substantial and affected the result of the election. It is only when this is done, that the respondents are to lead evidence in rebuttal. The 1st and 2nd respondents herein failed to bring their cases within these parameters.
‘’It is my view that the Tribunal and the court below were unduly influenced by the alleged failure of INEC officials to adhere to INEC’s Manual, Guidelines and directives on the exclusive use of the Card Readers for accreditation and heresay evidence and thereby, with due respect, came to the wrong conclusions. I hold that the appellant has shown sufficient reason for this court to interfere with the concurrent findings of the Tribunal and the court below’’.
But Sagay argued otherwise. He said ‘’the Wike v. Peterside Supreme Court decision constituted the most devastating judicial blow on Democracy, the Rule of Law and Free, Fair and Credible Elections this country has ever seen. Not only have incredibly high and insurmountable barriers against election petitions been erected by that decision, it also gives an indomitable rock like status to anyone, who by blood, mayhem, violence, massive irregularities, fights his way on to the governorship seat; indeed, any electoral office. He is assured of unshakeable, solid tenure for 4 years. The full implication of the Supreme Court’s decision in Wike v. Peterside is: “when you prepare for Elections, prepare for War”. This judgment constitutes, “A Farewell to Election Petitions”.
The Electronic Card Reader Machine for accreditation of voters was provided for in the Approved Guidelines and Regulations for the conduct of the 2015 General Elections. Prior to the authorization of its use by the Guidelines, Sections 49 (1) and (2) of the Electoral Act 2010 (as amended) had adopted analogue procedure for the accreditation process. The National Assembly perhaps went to sleep by not amending the Electoral Act in order to replace the Voters’ Register (analogue procedure) with the Card Reader Machine, in order to serve as the sole determinant of valid accreditation process.
The 7-man panel of the Supreme Court led by the Chief Justice of Nigeria, Justice Mahmud Mohammed in the appeal number SC.1004/2015 in the matter between EDWARD NKWEGU OKEREKE (APPELLANT) AND NWEZE DAVIDUMAHI AND OTHERS (RESPONDENTS), held that; ‘’…since the Guidelines and Manual which authorized the use and deployment of the electronic card Reader Machine were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the voters’ Register whose judicial roots are firmly embedded in the selfsame Electoral Act from which it (the Voters’ Register), directly, derives its sustenance and currency’’.
Hon. Justice Chima Centus Nweze, who delivered the lead judgment said “the lower court was right in holding that the Card Reader Report was incomplete, unreliable and incapable of proving the appellant’s allegation of improper accreditation/over-voting’’. Should Voters’ Register or Card Reader Machine Report be the determinant of valid accreditation? This had been the basis of conflicting judgment amongst the Court of Appeal Divisions recently.
But, again felt otherwise. He said in his same paper, “A Farewell to Election Petitions”, that the Supreme Court, in rejecting the use of the Card Reader adopted its earlier views on the matter in Okereke v. Umahi S.C. 1004/2015, that the use of the Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register “whose judicial roots are firmly embedded or entrenched in the selfsame Electoral Act from which it (Voters’ Register) directly derives its sustenance and currency” – per Nweze, JSC. The question may be asked, how does the Card Reader ‘depose’, or ‘dethrone’ the voter’s Register.
‘’The sum total of the role of the Card Reader is that it is complimentary to the usage of the Voters’ Register.” So where in all this did Nweze, JSC, discover the ‘deposition’, and ‘dethronement’, of the Voters’ Register by the Card Reader? Absolutely nowhere. What Nweze, JSC, had simply done was to give the Card Reader a bad name in order to subject it to judicial execution.
‘’Section 15 of the Electoral Act clearly empowers the INEC to issue Regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and its Administration thereof. Introduction of Card Readers is doing exactly that. By law, the guidelines thus issued are as potent as the permitting law, i.e., the Electoral Act itself.
‘’It follows that if all the Card Reader does is to enhance, improve and promote the capacity of the Voters’ Register to ensure or guarantee, free, fair, credible and transparent elections, the Card Reader could NOT in any sense have ‘deposed’, ‘dethroned’ the Voters’ Register as Nweze, JSC, wrongly asserted in Okereke v. Umahi
‘’ The Voters’ Register could only be regarded as having been dethroned and deposed if its purpose in the Electoral Act was to promote fraud, rigging and massive irregularities. In other words, it is only when its role and purpose is in conflict with that of the Card Reader, that it can be said to have been dethroned and deposed by the Card Reader, because the two would then be working at cross-purposes with each other.
Rivers And Zamfara Judgement Attack
In a statement he sent to journalists titled, ‘’Supreme Court Judgement on Zamfara APC: The Judiciary As Alternative Electorate’’, Sagay stated that the Zamfara and Rivers state judgments are a national tragedy. We should not allow our legal system to throw up such unimaginable injustice.
“This major judicial disenfranchisement of the Zamfara and Rivers electorate should be reversed. I advise the APC legal team to apply for a review of the two judgments. Their Lordships ought to be given an opportunity to reverse this unprecedented tragedy. The prefix ‘Justice’ preceding the names of Supreme Court and Court of Appeal judges is significant, for it prescribes what they stand for and what they represent: justice!”
Sagay pointed out that in the governorship election in Zamfara, the APC candidate scored well over 500,000 votes while the PDP candidate scored just over 100,000 votes. He noted that the APC won all three Senate seats in the state, seven House of Representative seats and 24 state House of Assembly seats.
The statement reads in part: “By this judgment, the landslide APC victories in the governorship, Senate, House of Representative and House of Assembly elections are transferred to the PDP. If the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote? Is the electorate to be punished for the transgressions of party officials?
“Should the judiciary replace the electorate’s decision and install losers in office? Could the judiciary not have drawn on the deep recesses of its intellectual capacity, authority and its inexorable commitment to justice, to prevent this undemocratic calamity? “Can the APC officials not be punished, for their lapses without denying the electorate their democratic rights? Should the judiciary take over the electoral rights of the electorate? Is this not a clear case of technical law completely overthrowing justice?
“Have the members of the Supreme Court not achieved a level of creativity and authority to provide a solution without burying democracy and taking over from the registered voters as the judicial electorate? If this judgment had been an international one, it could have been described as ‘shocking the conscience of humanity.’ In this case, it shocks the conscience of Nigerian humanity.”
Citing several authorities, Sagay said the Supreme Court is specially endowed with the power and authority to do justice and to ignore law when it is technical and would create injustice, and to avoid at all costs a mechanical approach to the interpretation of the law. Now, has justice been served in Rivers and Zamfara states? No! In one case, innocent electorate in their hundreds of thousands were prevented from voting for their party by judicial order.
“In Zamfara, where voting took place, the verdict of the electorate was taken away from the victorious party and awarded by the judiciary to the woeful losers. In the next four years, Zamfara state will be governed by a party and politicians rejected by the electorates. This indeed shocks the conscience of Nigerian humanity,” Sagay stated.
Curiously, lawyers are divided on legality or illegality of the law professor’s arguments. While some disagreed on seeking Supreme Court review of the judgements in Zamfara and Rivers states, others dismissed such urge as odious or mere academic exercise to waste apex court’s precious time.
CONDITIONS FOR SUPREME COURT TO REVERSE SELF
Given the doctrine of stare decisis (judicial precedent), can the Supreme Court overrule itself in particular after proceedings have been concluded and are final (res judicata)?
If the decision is based on a law that National Assembly has passed, parliament can simply change the law. If the decision is based on the Constitution, the Constitution can be amended. Finally, Supreme Court can decide that a certain decision was wrong. For example, the Supreme Court’s decision in Brown v. Board of Education (USA) effectively overruled the decision in made 58 years before in Plessy v. Ferguson.
According to a columnist, Barr Omoba Oladele Osinuga, in his article titled, ‘’Revisiting the Supreme Court decision in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors in light of the decision of Southwark Crown Court in R v Ibori’’, opined that conditions precedent for the apex court to reverse is very limited; this he espoused with the decided cases in question.
The decision of the Supreme Court in Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors S.C. 63/2005 is surmised by the following remarks by Dahiru Musdapher, J.S.C (as he then was) the case, an appeal against the decision of the Court of appeal, Abuja Division delivered on 21st day March 2005, wherein the Court of Appeal dismissed the appellants’ appeal and affirmed the decision of the trial High Court.
The crucial issue is whether the 4th respondent herein, Governor James Onanefe Ibori of Delta State has been properly and adequately identified by the appellants, during the trial in the High Court, as the James Onanefe Ibori who was convicted by the Upper Area Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th September, 1995 for the offences of negligent conduct and criminal breach of trust and sentenced accordingly.
The matter started this way: On the 28th of September, 1995, the Upper Area Court Bwari FCT in a criminal case No CR-81-95 convicted one James Onanefe Ibori for the offences of negligent conduct and criminal breach of trust under Summary Trial Procedure under the provisions of Section 157 of the Criminal Procedure Code of the former Northern Region of Nigeria, applicable to the Federal Capital Territory, Abuja. The said convict was sentenced to a fine of N1000 or one year imprisonment on the information.
The issue before the Supreme Court in this was whether James Onanefe Ibori then Governor of Delta State was the same James Onanefe Ibori who had been convicted by the Upper Area Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th September, 1995. In his pleading before the Supreme Court and at every stage of the proceedings which commenced by way of Originating Summons brought by the (plantiffs in the High Court and Appellants in the Supreme Court case Engineer Goodnews Agbi and Anthony Alabi) in the High Court of the Federal Capital Territory (hereinafter referred to as FCT) against Chief Audu Ogbe, Chief Vincent Ogbulafor, Peoples Democratic Party and Independent National Electoral Commission (later struck out as a defendant on the application of the plaintiffs) seeking a declaration that James Onanefe Ibori is by virtue of the conviction aforesaid at Bwari Upper Area Court is not qualified to contest election as the 3rd respondent’s gubernatorial candidate for the 2003 Delta State Governorship Elections. In its decision the Supreme Court affirmed the decisions of the lower courts and dismissed the appeals.
In the Queen v. James Onanefe Ibori (Case No. T20117192) on 17 April 2012 at Southwark Crown Court, London before Justice Anthony Pitts having pleaded guilty James Ibori was convicted and sentenced to 13 years imprisonment with a likely release of 17 October 2012 on 7 counts of money laundering contrary to Section 93 of the Criminal Justice Act 1988 and Sections 327, 328 or 329 of the Proceeds of Crime Act 2002, 1 count of Conspiracy to defraud under the Common Law and contrary to Section 12 of the Criminal Justice Act 1987, 1 count of Dishonestly obtaining property by deception contrary to Section 15 of the Theft Act 1963 as amended from 15 January 2007 by the Fraud Act 2006 and 1 count of conspiracy to launder money contrary to the Sections 327, 328 or 329 of the Proceeds of Crime Act 20021 count of forgery – making a false instrument, with the intention to induce somebody to accept it as genuine contrary to Section 1 of the Forgery and Counterfeiting Act 1981.
Furthermore the Crown Court at Southwark took judicial notice in the distinguishing features and facts of James Ibori previous conviction in the UK of theft from a Wickes Store Ruislip, Middlesex (where he worked as a cashier) in 1991 and for credit card fraud in 1992, facts which he lied about when standing for public office in Nigeria.
The Southwark Crown Court in doing so placed reliance on the submission of learned Counsel for the Crown Ms Sacha Wass Q.C who made copious references to James Ibori’s violations of Sections 182 and 185 of the Constitution of the Federal republic of Nigeria (CFRN 1999). The court’s stance going at great lengths to rebut the argument advanced by the learned Counsel for the defence Nicholas Purnell Q.C that James Ibori did not violate CFRN 1999 since the Prisoners Rehabilitation of Offenders Act of 1984 nullified such convictions after five years. In the course of this discourse I shall examine the provisions of Sections 182 and 185 of CFRN 1999. Importantly Section 182 of the Constitution is the casus belli of the Supreme Court case of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors though curiously there is no express reference to this section in the Supreme Court judgement of this case but as noted in the learned Dahiru Musdapher, J.S.C (as he then was) summary of the case stated above implicit references are made to this section during the course of the proceedings given that this was the rationale for the appellants in initiating the suit in the first place.
The decision in Queen v. James Onanefe Ibori in my view has a significant impact of the ‘safety’, fairness and the interests of justice given the outcome and decision of Engineer Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors. Given the principles of finality of proceedings (res judicata), stare decisis judicial precedent binding the court, the dispensation and administration of justice rests on the foundation of enduring truth, fairness and equity.
Reopening a previously decided Supreme Court case
The Supreme Court generally in following the doctrine of stare decisis is bound by its previous decisions. This principle of judicial precedent is not unique to our Supreme Court but is a common feature of Superior Courts of record in Common law jurisdictions. It is also related to the principle which ensures that there is a finality of proceedings (res judicata) in the matter that is being adjudicated. This rule that the judgement being final and conclusive having being determined by the court with jurisdiction is however subject to in some cases to certain rare exceptions. Thus under this general rule there are indeed occasions when the Supreme Court departs from being bound by its previous decision.
The exceptions to the Supreme Court from departing from its previous decisions as judicial precedent or in an existing case setting it aside can be done for a number of limited reasons. These include if it is in the interests of justice to depart from such decision, the original and initial decision has been obtained by dishonest and fraudulent means by the parties and the decision was such that if was allowed to subsist and prevail it would have a grave and detrimental impact and effect on the administration and delivery of justice.
These reasons are eloquently expressed in obiter dictum remarks of P. Nnaemeka-Agu J.S.C who delivered the judgment in Francis Asanya and The State (1991) SC.43/1990, 3 NWLR (Pt.180), (1991) 4 SCNJ 1, (1991) 4 S.C 42. The learned P. Nnaemeka-Agu J.S.C reasoning has been the guiding principle of the Supreme Court in respect of previous decisions of the Court.
P. Nnaemeka-Agu J.S.C states that, “Previous decisions of this Court are binding on this Court until overruled or departed from. Departing from previous decisions is not a matter to be lightly embarked upon. The court can only be persuaded to depart from previous decisions if the previous decisions were proved wrong given per incuriam, and perpetuating injustice.”
“This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice.” (see at P.31, paras. E – G and Pp. 18-19, paras. G-B)
The learned Justice citing the cases of Odi v. Osafile (1985) 1 S.C. 1 (1985) 1 NWLR. (Part 1) 17; Bucknor-MacLean and Anor. v. Inlaks Ltd. (1980) 8-11 S.C. 1 stated that,’’The court has a twin duty to see that (1) justice is founded on the correct view of the law and (2) justice is not slaughtered on incorrect interpretation and application of the law and equity. The pursuit of these ideals are to go hand-in-hand with the pursuit of the ideal of certainty in the law.
This court respects precedent, even though it is not a court bound by precedent. It is, as here as in many other parts of the Commonwealth, essential for the certainty of the law that it should generally follow its previous decisions. But, as a court of ultimate resort, it need not do so when the interest of justice dictates otherwise. So it will not hold itself hamstrung by precedent when it has been shown that an established principle is beset with a substantial error such that to follow it will amount to furthering injustice. (Pp. 18-19, paras. G-B)
The learned Nnamani, J.S.C. also encapsulated these principles in James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 (at page 276). In the same case the learned Uwais, J.S.C opined that.
“It is indeed well-settled that this Court does not ordinarily depart from its decision unless it is shown that the decision has over a period of time perpetuated injustice through the doctrine of stare decisis or it has impeded the development of law or it is in fact against public policy or the decision was given per incuriam. (James Orubu v. National Electoral Commission & 13 Ors. (1988) 5 NWLR (Pt.94) 323 P.35, Paras.D-E).
Celestine Omehia Vs Chibuike Rotimi Amaechi Case
On November 2, 2009, Supreme Court dismissed Celestine Omehia’s application seeking for review of its judgement of October 25, 2007 which removed him and declared Rotimi Amaechi as the governor of River state.
Amaechi who won Rivers state PDP governorship primary in December 2006 was substituted with Omehia, and early in 2007, Amaechi filed a suit challenging his substitution against the April 14, 2007 elections.
Supreme Court in this case of AMAECHI v INEC  5 NWLR [PT.1080] 227 resolved the issue of the wrongful substitution of candidates of Political Parties during elections. The Court held that Amaechi was wrongly substituted with Omehia by PDP and that in the eyes of the law, Amaechi who didn’t contest the election was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.
But Omehia re-appealed saying the apex court made a mistake and the judgement contradicted some provisions of the 1999 Constitution.
But 7-man panel led by Justice Alloysius Kastina-Alu described the suit as frivolous and an act of judicial rascality, and accordingly dismissed it with N100,000 cost, saying even if it was a mistake, the apex court has a right to make a mistake. They insisted Amaechi remained the legitimate governor, and that was final regardless of whether it was rightly or wrongly entered and that there was nothing anybody could do about it. He said that if anybody was aggrieved by the court’s decision, the proper place to appeal was in heaven where God Almighty reigns supreme and not in Nigeria where they held sway; adding that “only God can reverse the October 25, 2007 verdict.”
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