Davidson Iriekpen
8 November 2009
analysis
Lagos — Can the Supreme Court ever reverse itself? This is one question Nigerians need not ask anymore as events in recent times have shown that it would be easier for a camel to pass through the eye of a needle than to get the Supreme Court to reverse itself.
Section 287(1) of the 1999 Constitution states it unequivocally and precisely that: "The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction"
But in the last two years, the apex court has defended and held on to its pronouncements, thereby foreclosing the impression that it would ever go back on its decision.
One of such attempts was by the former governor of Rivers State, Sir Celestine Omehia who filed an application before the court, seeking it to review its judgment delivered on October 25, 2007 between him and the incumbent governor, Rotimi Amaechi,
The former governor hired one James Esike, to pursue the case on his behalf at the apex court. When the application came up for hearing last week, it was not without drama.
Esike had told the court that he filed a motion on October16, 2009 and that having served other parties, it followed that he be allowed to state his reason why the earlier judgment of the court should be set aside. He said the judgment delivered on October 25, 2007 was a nullity on the grounds of lack of jurisdiction and competence to make the order not sought for, saying that the court was wrong.
The court then asked whether it had jurisdiction to hear the appeal in the first place and Esike answered in the affirmative but insisted that the court in the judgment in contention departed from its jurisdiction. This resulted in a heated argument between Esike and the court. Still trying to hold back his anger for the effrontery to file the application, Justice George Oguntade said: "If a court has jurisdiction to hear a matter, does it not expand to the right to make a judgment on it?" Replying, Esike, who alleged bias, said: "In the course of exercising your decision, you departed from the constitution. Section 22 (1) of the 1999 constitution provides for parties to nominate candidate and in your judgment you found that the suit brought before you by Amaechi wanting to be a candidate when election had been concluded."
It was at this juncture that Justice Oguntade advised that it was not enough for the applicant to allege that the apex court granted an order not sought for without telling the world the whole story as it relates to the case. He said: "This court is the final court in this country, we have a duty to make sure that justice is done. When we give our judgment, nobody can re-open it. Your mission here today is futile. Nothing will come out of it."
He traced the genesis of the case when he said "there was a primary election of the Peoples Democratic Party (PDP) in the state; Amaechi won by about 6,000 votes; and Omehia never contested. Along the line, Amaechi was alleged to have committed a crime and was stopped from contesting through expulsion. According to him, "all parties agreed to abide by the decision in Ifeanyi Araraume's case (that it is a party that contests an election and not the individual) and you all came before the court and it has a duty to do justice in all cases and that was what was done. Once we have given a judgment, whether right or wrong, your action is futile and you cannot get anything at the end of it."
Esike, who did not still get the handwriting on the wall, replied: "The law is that political parties should nominate candidates but by your judgment, you have amended that law. The final decision is yours but the lesson of history is different. Let me make my decision and you can overrule me; then I would take my medicine as a man. With regard to equity, none of Amaechi's claims is equitable. The court departed in that judgment. The issues brought before you was mute and you amended section 22 (1) of your rule."
But a furious Justice Katsina-Alu who could no longer tolerate the guts of the lawyer not only i dismissed the suit, he lashed out at Esike and his client. He said: "In my view, your action here is a 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 damage. Whether right or wrong, that judgment stands. You are threading a dangerous ground. 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. One thing I know is that God is not your client. If you persist trying that path, you won't go home today. You don't talk as if you are talking to some juniors in your chambers. You accused the Supreme Court of making law.
"This application is clearly misguided and ill-advised. But it affords us the opportunity to warn counsel to desist from bringing frivolous application before us. If a court has the jurisdiction to hear a case, it follows that it has the jurisdiction to be wrong or right in its judgment. This application is clearly an abuse of court process and it is accordingly dismissed".
With the ruling, Justice Oguntade took liberty to admonish lawyers to stop bringing frivolous applications to the Supreme Court. He told Esike to always avert his mind to the prevailing circumstances that led the court to give the judgment it gave in the Rivers State Governorship election tussle.
According to Justice Oguntade it was wrong for the litigants to want to turn the court to "a musical chair" that could be swerve anyhow, asking whether the applicant wanted the court to start replacing the governor with every application asking for it. He said "We are not sitting here as individuals; we are sitting as the final court of Nigeria. We don't have any friend among you. We would leave here and retire to our villages but the Supreme Court and the law live forever. What we did was the best way we can safeguard our democracy. We gave everybody the opportunity to contest the election, but some people in the Presidency said no. When we ordered that Ifeanyichukwu Ararume was the candidate of the Peoples Democratic Party in Imo State, the party rather than comply with the order, expelled him from the party to frustrate the judgment of this court."
For Justice Walter Sam Onnoghen, the only forum open to Omehia was with God. "Even if we are wrong our decision is final. You may appeal to God. You brought this application in contempt of court. You can go and appeal to God,"
Omehia is not the first person to thread the path of seeking the consent of the apex court to review its earlier judgment in recent times. Former Special Assistant to the former President Olusegun Obasanjo on Domestic Affairs, Mr Andy Uba did. Uba, the candidate of the Peoples Democratic Party (PDP) in the April 14, 2007 gubernatorial election in Anambra State, it would be recalled, had twice filed similar application before the court.
On the first occasion, Uba filed his application alongside the Independent National Electoral Commission (INEC) and the governorship candidate of the Nigeria Advanced Party (NAP), Mr. Ifeanyichukwu Okonkwo, seeking to set aside its earlier judgment delivered on June 14, 2007 which declared Mr. Peter Obi tenure still subsist.
Saying that it was an effrontery to ask it to reverse itself in a case it had determined, the court descended heavily on the plaintiffs with vituperations. In a unanimous judgment, it did not only dismiss the applications filed by the trio, the panel of justices presided over by Justice Iyorgher Katsina-Alu, concluded that hearing the applications would amount to chasing shadow or "embarking on a wild goose chase." While the court spared Uba, it however, lambasted Okonkwo who alleged that Obi had bribed him with the sum of N10million to compromise himself at the Court of Appeal. It described Okonkwo as a blackmailer who goes about extorting money from politicians and declared that he was "not fit to even live in the jungle."
According to Justice Kastina-Alu: "I have no doubt in my mind on the compliance with the rules of the Court of Appeal, the proceedings were commenced at the Federal High Court and in my own view, the non-compliance argued about come to no issue. Remarkably, the 5th respondent/applicant (Uba) had known of the irregularities complained of at the court below, but never complained and, therefore, the court below was led into giving judgment in his favour with the knowledge of the said irregularities. The court below thought little of the irregularities.
"The 5th respondent (Uba) cannot now be allowed to approbate and reprobate on the irregularity he had thought little of. He believed that he has a joker he can raise at any time; it is a wrong assumption. As at the time the appeal was filed, the records were before the Court of Appeal and the court ought to have told the appellant to go and file at the trial court. This court has given its final judgment on this matter. The jurisdiction to reopen it is on a narrow compass. The argument that we should hear the matter on its merit is an invitation for us to embark on a wild goose chase. It is clear that the court cannot revoke its jurisdiction, I, therefore, strike out all the applications with no order as to cost."
Before then, Justice George Oguntade had sought from Okonkwo, clarification on the purpose of N10 million bribe he allegedly received from Obi. He said he was paid the said sum to withdraw his preliminary objections to Obi's appeal and not to withdraw the main appeal. Oguntade, who could not contain his anger, said: "We want to maintain the highest standards of justice. Your position is that you accepted money to withdraw from the case but later turned around to blackmail the governor and say that you have been compromised and asking the court to set aside the judgment. I have a feeling that you are one of those exploiting politicians and making things difficult for them to rule this country."
As Okonkwo tried to interject, Oguntade shouted: "Shut up and listen. You are a common crook, I think very little of you. I don't know what my colleagues think of you, but you would be very lucky if you can go home from here today. I wonder where you derived the courage to come before us and ask us to set aside our judgment after you took bribe to compromise yourself."
Whereas Kastina-Alu preferred not to offer an opinion of Okonkwo, Justice Pius Olayiwola Aderemi was not that charitable as he said: "You (Okonkwo) are not fit for a decent society but the jungle among animals." Even Justice Tanko Mohammad who was visibly angry, told Okonkwo that "if I were alone I will jail you; you are a common crook. We ask you to come forward so that people can see the face of a crook."
The second time Uba attempted to push his luck again was last June. He hired a senior advocate, Mr. JB Daudu (SAN) to help persuade the apex court to review the judgment. But in the unanimous verdict, the seven-man panel of the court did not only dismiss his application, it described it as a "thorough abuse of the judicial process."
Before preparing the judgment, the Chief Justice of Nigeria (CJN)
Justice Idris Legbo Kutigi, who presided over the case fumed at the perceived effrontery of Uba in bringing the application before the court, which, according to him, was a mere attempt to rubbish the integrity of the judiciary in order to fulfill his gubernatorial ambition.
Justice 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 back to the trial court to ask it to void the same notice of appeal which this court (Supreme Court) had declared valid; when he failed, he went back to the Court of Appeal and failed and has returned to us", Kutigi observed.
Now referring to Uba's counsel, JB Daudu, Justice Kutigi lamented at a situation where very senior members of the legal profession would allow themselves to be used as tools in the hands of politicians. "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."
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