Cracking the judgment reversal tough nut

Two Supreme Court judgments within a month sent reverberating shockwaves through the polity.

In the first judgment delivered on January 14, the Peoples Democratic Party (PDP) was at the receiving end.

The Supreme Court removed Imo State Governor Emeka Ihedioha and ordered the swearing-in of Senator Hope Uzodinma, All Progressives Congress (APC) governorship candidate in the last March 9 election.

The PDP has been protesting against the verdict, with its chairman Prince Uche Secondus and other leaders urging the highest court to “revisit, review and reverse” the judgment.

An application to that effect will be heard tomorrow.

While the PDP protests were yet to abate, the roles unexpectedly reversed with regards to the Bayelsa State governorship election.

APC’s David Lyon was warming up to be sworn in as the governor when the Supreme Court dashed his and APC’s hopes.

The apex court disqualified Lyon because of irregularities in his running mate’s names on his certificates.

PDP’s Douye Diri has since been sworn in.

APC National Chairman Adams Oshiomhole said the party will explore “viable legal windows” to reverse the verdict.

He added: “We affirm our confidence in the judiciary even with pain in our hearts.”

An option for APC and Lyon would be to seek the judgment’s reversal, but will the PDP and APC succeed where others have failed?

APC, Uzodinma oppose PDP, Ihedioha’s prayers

In a February 5 application, PDP and Iheodioha are praying for “an order setting aside, as a nullity, the judgment…”

Their application is based on five grounds, including that the judgment was obtained by fraud and that Uzodinma misled the court.

Ihedioha and his party also argued that the Supreme Court lacked the jurisdiction when it heard and decided Uzodinma’s appeal and that its decision was given per incuriam (lacking due regard to the law or the facts).

The applicants said: “The appellants/respondents (Uzodinma and the APC) fraudulently misled this court into holding that a total of 213,495 votes were unlawfully excluded from the votes scored by the first appellant/respondent (Uzodinma) in the gubernatorial election of 9th March 2019 in Imo State.

“The first appellant/respondent admitted under cross-examination that he was the person, and not the third respondent (INEC) or any of its officials, who computed the result that gave him the 213,495 votes alleged to have been excluded from his total votes in the election.

“The fraudulent nature of the additional votes was demonstrated by the fact that the total votes cast, as shown in the first appellant/respondent’s computation, was more than the total number of voters accredited for the election and in some polling units more than the total number of registered voters.

“The fraud was also demonstrated by the fact that the result computed by the first appellant/respondent showed only the votes of the first applicant and the first appellant/respondent without specifying the votes scored by the other 68 candidates who participated in the election.”

But, the APC and Uzodinma are praying the Supreme Court to hold that it was late for Ihedioha and PDP to request the court to revisit their case at the expiration of the 60 days allowed by the Constitution.

They are contending that it was not part of the Supreme Court’s functions to sit on appeal over its judgment as being demanded by PDP and Ihedioha.

The respondents argue that since January 14 when the Supreme Court gave its decision, it no longer had jurisdiction to adjudicate on the case.

Uzodinma and the APC also argued that the Supreme Court’s rule prevents it from reviewing its judgment once delivered, except to correct clerical mistakes or accidental slips.

They urged the highest court not to indulge in an academic exercise or provide answers to hypothetical questions.

Oputa’s words of hope

The words of the late Justice Chukwudifu Oputa are always referred to by those who believe the Supreme Court can make a mistake and reverse itself.

In the case of Adegoke Motors Ltd. v. Adesanya (1989] 13 NWLR (Pt.109) 250 at page 275, the late Justice famously said: “We are final not because we are infallible; rather we are infallible because we are final.

“Justices of this court are human beings, capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions.

“Similarly, the court can do incalculable harm through its mistakes. When, therefore, it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled.

“This court has the power to over-rule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.”

The late Oputa reportedly quoted a former American Supreme Court Justice, Robert H. Jackson, who said in the case of Brown v. Allen, 344 U.S. 443: ”Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts.

“However, reversal by a higher court is not proof that justice is, thereby, better done.

“There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed.

“We are not final because we are infallible, but we are infallible only because we are final.”

Some failed revsersal attempts: The Zamfara case

One of the most recent examples of a failed attempt to have a judgment reversed involves the APC and its candidates on the last Zamfara State elections.

Last July 22, the Supreme Court rejected a request to review its May 24, 2019 judgment voiding APC’s participation in the polls.

A five-man panel, led by Justice Olabode Rhodes-Vivour, struck out the application filed on behalf of APC and its candidates by a leading lawyer, Robert Clarke (SAN).

Clarke said the application was for the Supreme Court to reconsider its judgment which transferred APC’s victory to PDP, which came second in the poll.

But, the justices faulted the application, saying the APC and other applicants did not provide a valid basis for a review.

Justice Ejembi Eko noted that the application was wrongly brought under Order 8, Rule16 of the Supreme Court’s Rules.

Justice Amina Augie noted that the grounds on which the application was brought did not qualify for the court to review its earlier decision.

Justices John Okoro and Amiru Sanusi noted that since the case, on which the earlier judgment was given, was a pre-election case for which the Constitution allows the Supreme Court 60 days to determine, the court no longer had jurisdiction to revisit the case.

Justice Rhodes-Vivour said: “The Supreme Court has no jurisdiction over the matter because anything that has to do with pre-election matter must be brought within 60 days after a decision had been delivered.

“We don’t seat on appeal over our own decision. We have no jurisdiction over this matter.”

Ogboru vs Uduaghan

In 2014, former Democratic Peoples Party (DPP) governorship candidate in Delta State, Chief Great Ogboru, had, through his counsel Dr Dickson Osuala, sought a review of the judgment which upheld former Governor Emmanuel Uduaghan’s victory.

Osuala claimed that Section 285 (7) of the Constitution, which the Supreme Court relied on to dismiss his client’s case, was “fraudulently inserted by the National Assembly”, and that its addition did not follow due process.

The Supreme Court dismissed the case and awarded N8million cost to Uduaghan.

Former Chief Justice Walter Onnoghen held: “The said N8million is awarded as cost against the person of Dr Osuala and is to be paid from his pocket to the respondents.

“The plaintiff, through his counsel, wants to resurrect a dead and buried horse.”

Ogboru twice failed in his attempt to have the judgment reviewed.

Omehia vs Amaechi

Former Rivers State Governor Celestine Omehia, whose tenure was short-lived, sought a review of the Supreme Court judgment delivered on October 25, 2007, which replaced him with Rotimi Amaechi.

In December 2006, Amaechi contested and won the PDP primaries, but his name was substituted with Omehia’s.

In 2007, Amaechi filed a suit challenging the decision. The Supreme Court held that Amaechi was wrongly substituted with Omehia. It declared Amaechi as the governor.

Omehia’s counsel, James Esike, argued that the verdict was without jurisdiction as the highest court made an order not sought for.

On November 2, 2009, the apex court dismissed Omehia’s application for a review of its judgment and awarded N100, 000 cost against him.

Former Chief Justice of Nigeria (CJN), the late Aloysius Katsina-Alu told the lawyer: “In my view, your action here is serious professional misconduct. We have given our decision two years ago and you are here asking us to review it.

“Even if we stay here till December, you will get nothing. At best, you can attract punitive damages. Whether right or wrong, that judgment stands.

“You are treading a dangerous ground by asking us to reverse ourselves. We have no right to sit on appeal over our decision. Our judgment is not a nullity and you can go on and appeal to God.”

Uba vs Obi

A former President Olusegun Obasanjo’s aide Andy Uba and others twice sought a reversal of the Supreme Court judgment of June 14, 2007, which validated Peter Obi’s status as governor.

Dismissing the application, the late Justice Katsina-Alu said hearing the applications would amount to a wild goose chase.

At Uba’s second attempt, the Supreme Court said the application was a “thorough abuse of the judicial process.”

Then CJN, the late Idris Legbo Kutigi held: “This court held in its earlier judgment that the notice of appeal filed by Peter Obi at the Court of Appeal was valid.

“Yet, after our judgment, the applicant went straight back to the trial court to ask it to void the same notice of appeal which this court had declared valid. When he failed, he went back to the Court of Appeal and failed and has returned to us.

“What kind of country is this where Senior Advocates of Nigeria are used to mess up the judiciary? We will not allow this kind of practice. This is wrong.

“The appellant has been shuttling from one court to another on a matter that the Supreme Court had already delivered judgment.

“If the Supreme Court makes a mistake, there are procedures of correcting the mistakes; not this way, and we will not allow it.”

Rays of hope

There are, however, historical instances of the Supreme Court reversing itself. In a 1971 case filed by Kobina Johnson vs Irene Lawanson, the applicant reportedly questioned a section of the Evidence Act.

The Supreme Court had earlier maintained that for a deed to be competent as contemplated by Section 129 of the Evidence Act, it must be 20 years old as at the date of proceedings. But, on February 12, 1971, the Supreme Court reversed itself.

It held that for a deed to be competent, it must be 20 years old “at the date of the contract”.

Justice G.B.A Coker held: “When the court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision which was reached per incuriam and will, if followed, inflict hardship and injustice upon the generations in the future or cause temporary disturbances of rights acquired under such a decision, I do not think we shall hesitate to declare the law as we find it.”

A legal expert, Emeka Opara, noted that the United States Supreme Court had, in several instances, set aside its decisions.

In an article, he writes: “In Jones v. City of Opelika (II), 319 U.S. 103 (1943) the court vacated certain orders made in its judgment in Jones v. City of Opelika 316 U.S. 584 (1942), having found on the application and proper examination of the law, that it arrived at the earlier decision wrongly.

“This later decision was based on its decision in Murdock v. Pennsylvania, 319 U.S. 105 (1943) which had been brought to its notice.

“In the Civil Trials Bench Rules of Australia, it is noted (Note 2-6600) that a judgment or order can be set aside if entered or made irregularly, illegally or against good faith.

“Violi v. Commonwealth Bank of Australia [2015] NSWCA 152 and Chand v Zurich Australian Insurance Ltd [2013] NSWSC 102 are two examples.

“Coming home to Nigeria, in Oriker Jev & Ors. v. Iyortom & Ors. [2015] NWLR (Pt. 1483) 484, interestingly an electoral matter, the Supreme Court had in an earlier judgment ordered that INEC conduct run-off election in the case.

“Subsequently, 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 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.”

According to Opara, where the ground exists, “Supreme Courts of basically all jurisdictions will not shy away from setting aside their judgments or orders and substituting them with others”.

What the experts said

Senior lawyers believe it will be difficult to get the Supreme Court to reverse its judgment.

Chief Ifedayo Adedipe, Dr Olisa Agbakoba, Mr Ahmed Raji, Babatunde Fashanu and Dr Paul Ananaba, all Senior Advocates of Nigeria (SAN), held similar views.

They spoke with The Nation before the PDP and Ihedioha filed their application for the review.

Adedipe said: “The Supreme Court is the final court of the land. Its decisions can only be changed by legislation.

“The provisions in the Supreme Court Act for a review of judgment have to do with correcting clerical mistakes.

“Besides that, the court cannot revisit any decision it has rendered. The PDP’s call, with profound respect, is mischievous.”

For Agbakoba, PDP’s review demand is unrealistic. He said: “The demand is not feasible as it is a final judgment and not amenable to review.”

Raji said while the Supreme Court rules allow for a review in a very limited way, there are other factors to be considered.

“If their case can be accommodated under the rules and the decided authorities on the point, why not? But the greatest challenge will be the 60-day time-limit.

“The position of the court is that after 60 days from the date of the judgment of the Court of Appeal in an election petition, the Supreme Court ceases to have jurisdiction. That is the hurdle,” Raji said.

Fashanu said the Supreme Court was functus officio in the matter and cannot revisit the case.

“A court can only revisit a case in which it has delivered judgment if the judgment is a nullity e.g. if the court lacked jurisdiction to hear the case or if the judgment was obtained by fraud.

“Nothing like that is being alleged here. So, let the loser wait for another election,” he advised.

But, Dr Ananaba said there was no harm in trying.

“An aggrieved person can make such a request. It is left for the Supreme Court to grant it or not. It is only the Supreme Court that can review its judgment.

“Because they are human, they can change their minds on a particular principle of thought. They may agree or not agree. By and large, their decision is final.”