Law & Human Rights

July 14, 2016

Supreme Court cannot set aside own judgment- Akpedeye, SAN

Dafe Akpedeye SAN

By Onozure Dania

HOW do you see the move    by the Senate to commence the process of amending the 2010 Electoral Act to pave way for early primaries to strengthen electoral process?

This is a welcome development which is long overdue. Nigerians have been clamouring for the amendment of the Electoral Act. Even Nigerians in the diaspora have added their voice to the cry. Their inclusion in the process would be a positive development for many reasons. First of all it will represent true democracy and full inclusion of all Nigerian citizens stricto sensu.  However, the amendments should not only be focused on party primaries. There should be a holistic amendment of the Act.

Dafe Akpedeye SAN

Dafe Akpedeye SAN

Before the 2015 general election, the Independent National Electoral Commission, INEC, submitted proposals to the National Assembly for amendment of some sections of the Act, which it said, were making its works “ambiguous and confusing,” especially in dealing with the antics of political parties and other stakeholders. I believe the time has come to take another look at the Act.

Apart from this amendment, are there any other amendments you envisage that the Senate should  look into?

The National Assembly recently kick started the process of amending the constitution for the fourth time by inaugurating constitutional amendment committees to oversee the process which I believe is a step in the right direction. Going by the various security, economic and socio-political issues confronting the country, there is no gain saying that this is coming at the right time.

Yearnings and aspirations

The National Assembly should be looking at amendment which will grant some measure of autonomy and strengthen key institutions that support democracy such as the Courts, INEC, the Police, ICPC, EFCC and other key institutions. I will like to add that in carrying out the much needed Constitutional amendment, the National Assembly should take into consideration the yearnings and aspirations of Nigerians and also bear in mind the need to cut down the cost of governance in the country.

Can the Supreme Court reverse itself?

We are final not because we are infallible, rather we are infallible because we are final. – The late Justice Oputa.  This memorable quote by the late Justice Chukwudifu Oputa speaks volume about the powers of the Supreme Court. There is no power in the Supreme Court to set aside or review its own judgment given in the same case. The only exception relates to correction under the slip rule, which cannot be regarded as a review properly so called. Thus, the Supreme Court may revisit its judgment under Order 8 Rule 16, Supreme Rules to correct clerical errors or omissions or gabs to give meaning to the judgment or decision of the court and not to vary it. This is without prejudice to the inherent power of the Supreme Court to set aside its judgment in appropriate cases when; the judgment is obtained by fraud or deceit either on the court or by one or more of the parties.

Such a judgment can be impeached or set aside by means of an action which may be brought without leave, or where the judgment is a nullity. A person affected by an order of court which can properly be described as a nullity is entitled ex debito justitiae to have it set aside, and when it is obvious that the court was misled into giving judgment under a mistaken belief that the parties had consented to it. For example, the case of Johnson v Lawanson (1971) 7 NSCC 82 is regarded as the trail-blazing case in which the Supreme Court exercised the power to overrule itself.

Coker J.S.C. delivering the court’s judgment held that “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 of causing temporary disturbances of rights acquired under such a decision, I do not think we shall hesitate to declare the law as we find it.” Again in Olorunfemi v Asho the Supreme Court set aside its judgment delivered in January 8, 1999 on the ground that, it failed to consider the respondents cross–appeal before allowing the appellant’s appeal.

Panel of Justices

The court then ordered that the appeal be re-heard de novo by another panel of Justices of the Supreme Court. The Supreme Court has been inundated with appeals to review its decision given in the same case and there has been a consistent refusal on the part of the court to act as an appeal court over itself. A case in point is that of Dr Andy Uba, who had earlier gone to the Supreme Court to ask for the revalidation of his alleged victory at the April 14, 2007 governorship election and return him to office after the Supreme Court threw out his case, approached a seven man panel of the court to get the court to set aside its judgment which terminated his two weeks tenure as the Governor of Anambra State in 2007.

The court in its ruling delivered by the then Chief Justice of Nigeria, Justice Idris Kutigi, observed that Dr. Uba’s attempt at luring the court into setting aside its judgment which was delivered on June 14, 2007 was a gross abuse of the court process and maintained that there must be an end to litigation. This was again reaffirmed in the case of Prof. Steve Torkuma Ugba vs. Gebriel Torwua Suswam, where the issue for determination was whether, given the facts of the case, the applicants satisfied the conditions to warrant the Supreme Court to set aside its earlier ruling.

The advantage of this stance, is that it fosters stability, enhances development of consistent and coherent body of laws, preserves continuity and manifests respect for the past, assures equality of treatment for litigants similarly situated, spares the judges the task of re-examining rules of law or principles with each succeeding case and finally it affords the law a desirable measure of predictability.

The composition of the National Judicial Council, NJC, has been seen by many lawyers as unconstitutional. Do you share this view?

The National Judicial Council is one of the bodies created by virtue of Section 153 of the 1999 Constitution of the Federal Republic of Nigeria to insulate the judiciary from the whims and caprices of the executive; thus guarantying the independence of the judiciary. By the provision of Paragraph 20 of Part One of the Third Schedule to the 1999 Constitution as amended, the National Judicial Council shall comprise the following Members: –

The Chief Justice of Nigeria, who shall be the Chairman; The next most senior Justice of the Supreme Court, who shall be the Deputy Chairman; The President of the Court of Appeal; five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal; the Chief Judge of the Federal High Court; the President, National Industrial Court; five Chief Judges of State to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Territory, Abuja in rotation to serve for two years;

one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years; one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years five members of the Nigerian Bar Association, NBA, who have been qualified to practice for a period of not less than 15 years, at least one of whom shall be a Senior Advocate of Nigeria, SAN, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment:

Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of record; and two person not being Legal Practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity Going by the current membership of the NJC, I fail to see the unconstitutionality of its composition.