The jurisdiction of the Supreme Court under section 233 of the Constitution cannot be traded under the guise of 180 days. That jurisdiction, on its own, encapsulates, by constitutional imperative, the entirety of proceedings from the trial court, to the court of Appeal and issues raised before the Supreme Court, even if for the first time. It is the law that an appeal is a continuation of the hearing. See Trustees, A.O. N. vs N.A.M.A. [2014] 8 NWLR (Pt. 1408) 1 at 30 paras. G-H.

In Adegoke Motors Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 266, his lordship Oputa, JSC as he then was now of blessed memory held that: “Generally, an appeal is regarded as a continuation of the original suit rather than the inception of a new action. Because of this, in an appeal, parties are normally confined to their case as pleaded in the court of first instance. They are not allowed to make a new and different case on appeal. They are not allowed to raise in such appeals new issues without the express leave of the court or to proffer new evidence without such a leave. An appeal, being a judicial examination by a higher court of the decision of an inferior court, follows that such examination should normally and more appropriately be confined to the facts and issues that came before the inferior court for decision.”

Since an appeal is a continuation of the case as instituted in the trial court it is submitted that any errors can and should be corrected by the Supreme Court. That is the basis of the Appellate jurisdiction donated to this the Court of Appeal and the Supreme Court by the Constitution. See Ezomo vs. A.G. Bendel State (1986) 4 NWLR (Pt. 36)448; Ogunremi vs. Dada (1962) 1 ALL NLR (Pt. 4) 663, 2 SCNLR 417; Adewoyin vs. Adeleye (1962) 2 NLR (Pt. 1) 108; 1 SCNLR 91. 

The point being made is that the combined reading and construction of the appellate jurisdiction of the Supreme Court as donated by the Constitution read together with section 22 of the Supreme Court Act, does not admit that those who approached the Supreme Court should not be sent home with barren justice as it appears to be the policy of the Supreme Court presently. Section 22 of the Supreme Court Act as an Act of parliament draws strength and constitutional force from section 233 of the Constitution and therefore and it does not a stand-alone. 

In the exercise of its constitutional jurisdiction of the appeal, the Supreme Court can do what the trial court can do within the 60 days window granted by the Constitution even if section 22 of the Supreme Court Act does not exist, or had not been enacted. The Supreme Court is not only the highest Court of the land but a court of policy and it does not accord with the logic of justice for the construction being advanced that once 180 days had expired then in the exercise of its appellate jurisdiction the Supreme Court cannot do what the trial court failed to do. 

The Supreme Court has in the most admirable quest for justice done what it appears it does not want to do now in many deserving cases. There are decisions of the Supreme Court that do not support the current stand of the Supreme Court. For instance in Appeal No: SC/CV/1353/2022,  Nwite vs PDP & Ors, delivered on 9th December 2022, the Supreme Court even though 180 days had passed, acting under its appellate jurisdiction and in aid of justice reviewed the evidence and reached a different conclusion from the trial court, thereby allowing the appeal.

In election petition appeals the Supreme Court had in aid of justice heard and determined issues that the trial tribunal failed to adjudicate on. See Nyesom vs. Peterside (2016) LPELR – 40036(SC) at 22-23. In this case, Mr. Ukala, SAN, had urged it upon the Supreme court that substantive issues were not pronounced on by the lower courts. The Supreme Court, having expressly found that the 180 days the lower court had elapsed held that:

“I, therefore, agree with learned counsel for the appellant that the ruling delivered on 9/9/2015 was without jurisdiction. It is a nullity. It therefore follows that the appellant’s right to a fair hearing was breached as there is no resolution of the issue submitted for determination in the application. Having found that the ruling delivered on 9/9/2015 was a nullity, it constitutes good ground for setting aside the entire proceeding before the tribunal. However, having regard to the fact that this is an election matter which is sui generis and time-bound and the fact that it would not be possible for the parties to return to the tribunal having regard to section 285(6) of the 1999 Constitution, I deem it proper in the interest of Justice to consider the appeal on the merits. 

Again in Mato vs Hember (2018) 5 NWLR (Pt.1612) 258, it was a matter where the 180 days allotted to the trial court had not only lapsed, the trial court had refused to consider the merit of the appellant’s case. The Court of Appeal in that case also refused to enter the merit of the appeal, dismissing the same on technical grounds. On appeal to this court, the appellant invoked section 22 of the Supreme Court Act and at 288-289 of the report, the Supreme court set out the conditions an appeal must meet before section 22 of the Supreme Court can be invoked. 

This is what the Supreme Court said: “Certain conditions must exist before the Supreme Court can exercise the wide power conferred on it by Section 22 of the Supreme Court Act. The conditions include the following:
(a) availability of the necessary materials to consider and adjudicate in the matter;
(b) the length of time between the disposal of the action at the trial court and the hearing of the appeal; and
(c) the interest of justice by eliminating the further delay that would arise in the event of remitting the case back to the trial for rehearing and the hardship such an order would cause on either of both parties in the case”

Thereafter, the Supreme court invoked its powers and their lordships in the most admirable candor in delivering justice in the judgment held that:

“The situation in the instant case makes it imperative for this court to invoke its powers under section 22 of the Supreme Court Act to hear this case”

I have gone this length to demonstrate the need for the Supreme Court to revisit the policy that Once 180 days have passed and the trial court in breach of the constitution decided not to consider the merit of the case in a judgment or rulings in interlocutory applications or the trial courts raised issues that truncated the merit of the case or wrongly held that because it upheld jurisdictional points, there will be no need considering the merit of the case, the Supreme Court in the final appeals to it should and ought to assume jurisdiction to determine the merit of the case. This is the only way the Supreme Court will not unwittingly grant unbridled judicial policy or license to the trial courts to continue to engage in judicial terror or tyranny.

Concluded

Okutepa is a Senior Advocate of Nigeria (SAN).