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Applications for review of supreme court judgments: Pushing mother luck too far?

By Joseph Onyekwere (Assistant Editor, Law & Foreign Affairs)
01 March 2020   |   8:12 am
As it is, I cannot believe, and I say this with tears in my eyes, I cannot believe that in my lifetime I would see very senior members of the Bar bring applications of this nature to this court, which are aimed at desecrating the sanctity of this court...

“As it is, I cannot believe, and I say this with tears in my eyes, I cannot believe that in my lifetime I would see very senior members of the Bar bring applications of this nature to this court, which are aimed at desecrating the sanctity of this court; violating the well-known principle that decisions of the court are final; and destroying the esteem, with which this court is held.
“The two applications filed by the two sets of applicants are vexatious; they are frivolous; and they are without doubt a gross abuse of court process. In the circumstances, the said two applications are hereby dismissed. Costs of N10 million each are awarded against the first and second applicants and the third applicant respectively, and in favour of the first, second and third respondents, to be paid personally by their respective counsel.”
With the above emotional and strong-worded quotes in the lead judgment delivered by Justice Amina Adamu Augie, the supreme court last Tuesday dismissed the application for the review of the judgment of the same court on Bayelsa state filed by the All Progressives Congress (APC) and its candidates for the office of governor and deputy governor in the state and awarded a punitive costs against the applicant’s lawyers.  

The court used the opportunity to sound a warning that it was not ready to tolerate abuse of court processes and desecration of its hallowed chambers. Continuing in the said judgment, justice Augie said: “The decision of this court in appeal No.SC. 1/2020 is final for all ages; it is final in the real sense of the word, final; and no force on earth can get this court to shift its decision regarding the Bayelsa pre-election appeal No.SC.1/2020. To do otherwise is to open a floodgate of litigation on appeals that have already been settled by this court. There is no even guarantee that if these two applications are granted, the other side will not come with a fresh application to review the ruling on the ground that this court did not consider certain aspects of the arguments in its ruling. There would be no end in sight.”
Section 235 of the 1999 constitution provides: “Without prejudice to the powers of the president or of a governor of a state with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination from Supreme Court.”

Also, Order 8, Rule 16 of the Supreme Court Rules states: “The Court shall review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.”

As a result of all these clear provisions of the law, the apex court held that the application for review was not in sync with the conditions for review and subsequently dismissed it. Before this landmark decision, many Nigerians were concerned about the flurry of agitations by politicians approaching the court for a review of decided appeals and wondered what such portend for justice delivery in the country.

Following the public outcry and controversy generated by the decision of the apex court on the governorship election in Imo State, whereby ex-governor Emeka Ihedioha of the Peoples Democratic Party (PDP) was sacked and replaced by the candidate of the APC, Hope Uzodinma, who came a distant fourth at the polls, the party and its candidate decided to return to the apex court for a review.
Consequently, the action opened up a window of opportunity for disgruntled politicians, who promptly indicated interest in trying their luck by filing for review of settled cases before the court, despite the fact that it is constitutionally the final court in the land.

When the court disqualified the candidates of the APC in Bayelsa on a pre-election matter at the eve of their swearing in and vitiated their votes, the PDP candidate, who was the runners up at the election benefited from it, prompting the incensed APC to seek for review. Seeing that the APC had asked for a review on the Bayelsa matter, the PDP also indicated interest in filing for a review of the 2019 presidential appeal, which it lost to the APC controversially too, at the apex court. 

Notwithstanding the present review surge by politicians, there are few occasions where the Supreme Court has been asked to review its decision in Nigeria and in those few occasions, only a couple of them were successful. According to Chief Robert Clarke (SAN), there have been about four instances, and he participated unsuccessfully in two of them.
“All over the world, where the common law is being practiced, the apex court allows people to review their judgment. In Nigeria also, the Nigerian Supreme Court allows people to come and review judgment. But not to challenge a judgment as if you are appealing against it, because if they make the mistake to allow anybody to always come to the court to challenge their decisions, they would open a floodgate, where everybody will want to take advantage. And that is why in Nigeria today, I don’t think there are more than three cases that have gone to the Supreme Court for review. I am lucky I have done two of those cases in the history of the three that has returned to them. I am doing one presently. The apex court says we can come when it makes a mistake, acknowledging that they are not saints. They are mortals like us, but they gave conditions,” he told The Guardian.
One of the successful reviews was in the case of Bar Oriker Jev & Ors. v. Iyortom & Ors. [2015] NWLR (Pt. 1483) 484. Interestingly it was an electoral matter too. The Supreme Court had in an earlier judgment in the matter ordered that INEC conduct run-off election. During the review, the court discovered that it made the said order based on a wrong interpretation of Section 133(2) in conjunction with Section 141 of the Electoral Act 2010 (as amended). On a post-judgment application by one of the parties, the Court set aside the earlier order. It instead ordered the Independent National Electoral Commission (INEC) to issue the applicant a certificate of return.
The Court further held: (1) That there is no constitutional provision for the Supreme Court to review its judgment as section 235 of the Constitution gives a stamp of finality to any decision of the Supreme Court. (2) That there is, however, as the Supreme Court has decided in several cases, an inherent power to set aside its judgment in appropriate or deserving cases but that such inherent jurisdiction cannot be converted into an appellate jurisdiction as though the matter before it is another appeal intended to afford the losing litigants yet another opportunity to restate or re-argue their appeal. (3) The Supreme Court avoided any direct holding on whether it acted per incuriam (without regard to existing law or precedent) in making the former consequential order, which it was called upon in the application to set aside. Rather, the Court said that it had inherent power to set aside the consequential order, which it had made on the basis of a wrong interpretation of Sections 141 and 133 of the Electoral Act. In holding so, the Court sidestepped the question of whether section 141 of the Electoral Act was unconstitutional, an issue that was raised by the applicant relying on a Federal High Court ruling in Labour Party v. Attorney-General of the Federation in suit No. FHC/ABJ/CS/399/2011. The Court instead held that section 141 does not apply to them and other courts engaged in a pre-election matter.
However, the case of Olorunfemi v. Asho in suit No. SC. 13/1999 presents some particularly interesting aspects similar to the case of Uzodinma Vs Ihedioha. In that case, the Supreme Court is said to have in its unreported ruling dated March 18, 1999 set aside its judgment delivered on January 8, 1999 (reported in Olorunfemi v. Asho [2000] 2 NWLR (Pt. 643) 143) on the ground that it failed to consider the respondent’s cross-appeal before allowing the appellant’s appeal. It ordered that the appeal be heard de novo by another panel of justices of the Court.
It is therefore evidently clear that where the ground exists, Supreme Courts of basically all jurisdictions will not shy away from setting aside their judgments or orders but not sitting on appeal against its own judgment as politicians want it done today.
Ebun-Olu Adegboruwa (SAN) reacting to this development said: “Interest Rei Publicae Res Jidicatas Non Rescindi (it is in the interest of the state that things decided are not rescinded). Let all candidates and their parties wait for the next election. We cannot
because of a four-year political tenure denigrate the most sacred institution of democracy. I hail the Justices of the Supreme Court for their courage and sagacity, which should be replicated in all other frivolous applications still pending for review.”
Condemning the plethora of political applications for review, former deputy director general, Nigerian Law school, Prof. Ernest Ojukwu (SAN), said the applications mainly represent the quest for an average Nigerian politician to dishonestly seize power. His words: “It is not good especially because these cases simply relate to the average Nigerian leaders’ dishonest struggle for power just to corruptly seize our resources for their selfish use. If the cases were matters concerning human rights of citizens, socio-economic issues or death penalty one would have had sympathy. Unfortunately the cases that are being championed for review are those concerning political leaders who have brought our nation down on her knees by their very corrupt model of election and governance.” 
These cases, he pointed out, rather than help with rebuilding confidence in the judiciary as being propagated by some lawyers would actually have a direct opposite effect of ridiculing the judiciary and justice process.  “I think that the Supreme Court of Nigeria will and should treat these cases with the greatest contempt they deserve,” he declared.
Warri-Delta state based lawyer, Chief Albert Akpomudje (SAN) described the development as unfortunate and warned that if it is not nipped in the bud, it would destroy the entire fabric of the judiciary. According to him, since the Constitution has said that the Supreme Court is the final court for appeals, a vanquished litigant should accept the outcome in stoic resignation. 
“What is happening is very unfortunate. If not nipped in the bud it can destroy the entire fabric of the judiciary. The Supreme Court has never claimed to be infallible. They always acknowledged that they are not perfect in all their judgments but because the Constitution has made the court final irrespective of how good or bad their judgments may be, parties are left with no option but to accept it whether good or bad.
“This new trend by our politicians aided by members of the legal profession in asking the apex court to review their judgments in the same case and come to a contrary decision like an appellate court has a dangerous implication such that litigation will never come to an end in our legal system. It is most unfortunate if allowed to happen.”
According to him, the conditions under which the Supreme Court can review its judgments are very limited, which does not include sitting on appeal over its judgments. Another way the apex court can overrule itself on a principle of law, he noted, is to refuse to follow its earlier decision if it comes to the opinion that it is bad law. “That cannot happen in the same case but a subsequent matter on the same subject matter,” Akpomudje quipped. 
For Kano based legal practitioner, Abubakar Sani, the reasons for the upsurge in requests for review of the apex court’s decisions are not far-fetched. “They are ill-motivated, irresponsible and smack of abuse of judicial process. In this, lawyers must take the lion-share of the blame, because, as officers of the court, they ought to know better. But, we live in interesting times, where our values are seemingly as fluid and changeable as the weather; they have been so abased that it is not an exaggeration to describe them as an admixture of political gangsterism/cynicism and economic opportunism/ desperation- at least among the political class,” Sani stated.
He wants the court to punish more of the lawyers who bring such frivolous applications before it. “In my view, what is needed to address the drift is for the court to reassert itself, possibly by making a scapegoat or scapegoats of a few of those presently daring it’s authority with such frivolous applications. The ball is in its court. It is high time it wielded the ‘big stick’. No one can do it except the court itself, as it would tantamount to crying more than the bereaved,” he suggested. 
Immediate past president of the Campaign for the Defence of Human Rights (CDHR), Mr. Malachy Ugwummadu, also a practising lawyer said the trend smacks of desperation of politicians to challenge the constitutionality and inherent jurisdiction of the apex court. 
His words: “The ruling re-asserts the supremacy of the Supreme Court in a manner that clears every ambivalence around the finality of the decisions of the court. It is, indeed, this finality that sustains the notion of its infallibility. Thus, in a way, the Supreme Court has reasserted itself in a profound way by awarding punitive cost against the senior counsel that brought the application outside the narrow twin grounds under Order 8 rule 16 of the Supreme Court Rules dealing with correction of clerical mistake or error arising from accidental slip or omission.”
Having said that, Ugwummadu added that the dismissal of the review application does not completely remove the anxiety and confusion created in the mind of the people of Nigeria, particularly Bayelsans on the operation of the justice system. “This is also serious considering that the notion of justice itself is rooted in the confidence of the people,” he asserted.
In his own intervention, constitutional lawyer and author, Chief Sebastine Hon (SAN) noted that section 235 of the 1999 Constitution as amended provides that decisions of the Supreme Court are final. However, the Supreme Court itself, he said has held in several cases that it can reverse itself if and when: “(a) it needs to correct a clerical error, which will make its judgment synchronised and well-aligned, and not self-contradictory; or (b) there are fundamental issues like want of jurisdiction or breach of fair hearing; or (c) any of the following vitiating factors exists – fraud, misrepresentation or collusion.”
From experience, Hon said, the apex Court stoutly (call it violently) rejects applications to set aside its judgments when the argument is just about the apex Court allegedly committing blunders or errors of law, as opposed to want of jurisdiction. “In so refusing, the Supreme Court always insists that as between the disputing parties, its judgment, no matter how seemingly erroneous, remains binding until the Court itself, in a later case, either refuses to follow the said decision or sets it aside completely. That has been the reasoning of the Supreme Court over time; and I see them, broadly speaking, toeing any of the applicable lines in these review applications,” he stressed. 
National coordinator, Access to Justice (A2J), Mr. Joseph Otteh agreed that never in the history of the Supreme Court has it been so bombarded with requests to review its verdict by political litigants. Commenting on what triggered the surge for review, Otteh said it is obviously the feeling of disillusion and despair over the judgments and the willingness of those who push for it to take a risk or gamble to see whether, by some chance, there will be a reversal of fortune. 
“On the part of the Court, it is its duty to hear every application, regardless of its merit. There have been calls to adopt a procedure used by the US Supreme Court, where it chooses which matters it will hear and which ones it will not, given its thinking of whether a review will make a significant contribution to the resolution of particular issues,” he said.
Otteh, who had consistently advocated a proactive and decisive judiciary that inspires, expressed the view that confidence in the court would further wane if it panders to the whims and caprices of interested litigants. His words: “I think it will wane further – we must regretfully accept that some level of public confidence has waned in the judiciary as a whole! Yet, at the same time, some decisions have caused considerable public disaffection with people thinking there was an error in the final verdicts. On balance, it will be worse for the judiciary if the Supreme Court were to reverse itself whimsically. The judiciary needs to do a lot of introspection and soul searching if you ask me and there are many who would say the judiciary brought this upon itself.” 
The lawyer pointed out that entertaining all those reviews would amount to waste of court’s time, which would also lead to a delay in addressing other important cases that are before the court. According to him, entertaining such reviews would have a negative and unfortunate impact on the speed at which the Supreme Court hears and disposes cases before it. 
“The fact that many elite lawyers know that it is a great risk they take when they ask the Supreme Court to review their cases, and yet choose to take the risk, says something about the fear that this won’t go away quickly. Nigeria really needs to rethink the ways its courts should function if we are to avoid worse things to come,” he warned.