THE SUPREME COURT REVIEW OF ITS DECISIONS: A BOON OR A NECESSARY EVIL?
Following the decision of the Apex Court on the 14th of January, 2020 in respect of the Imo State Gubernatorial Elections, which saw the Supreme Court set aside the victory of Honourable Emeka Ihedioha of the All Progressive Congress (APC) as the winner of the 9th March 2019 governorship election in Imo State and ordered the Independent National Electoral Commission to issue Senator Hope Uzodinma a certificate of return and that he be sworn in as Governor of Imo State immediately, The People’s Democratic Party (PDP) filed an Appeal with the Supreme Court on the 14th January 2020, seeking a review of its decision to oust Mr. Emeka Ihedioha as the Governor of the State. The Application for review was dismissed by the Supreme Court on the 18th of February, 2020 on the grounds that the Court lacked the Jurisdiction to entertain such an appeal. In delivering its Judgment, the Court held thus:
“The general law is that the Court has no power under any provision order to review any application unless to correct an error. This Court has on each occasion stated that it lacks jurisdiction to do that. We cannot sit as an appeal Court. We have no hearing power in respect of the matter.
“The Court does not have the competence and lacks the jurisdiction to review its own judgment. The finality of the Supreme Court is inherent in the constitution.
“To ask us to set it aside means an appeal for us to sit on our own decision, which we have no jurisdiction over.
The Court further awarded the Cost against the Counsel for the People’s Democracy Party’s Candidate, as it viewed the filing of the application for the review of its Judgment as an abuse of Court process in circumvention of the provisions of the Constitution. Naturally, the apex Court’s attitude to the review process in this case has brought about a plethora of opinions and insights from the legal community and the general public alike. It perhaps then would be sagacious to critically evaluate the potential impact of a Supreme Court review system.
2020 Bridget ChieduOnochie, AzimaziMomohJimoh, TerhembaDaka, SodiqOmolaoye , Charles Ogugbu, Leo Sobechi, SeyeOlumide and Olawunmi Ojo: “How Ihedioha’s appeal split Supreme Court” The Guardian Newspaper Nigeria. https://guardian.ng/news/how-ihediohas-appeal-split-supreme-Court/.
THE POWER TO REVIEW.
One of the fundamental principles of the judicial system is the necessity for checks and balances on each arm of the Judiciary. The need for checks and balances, for accountability in general, is critical to the effective dispensation of justice, as without this, the virtues the Court seek to espouse would erode away and give way to the whims of the every man . The right of appeal, borne primarily out of this desire for accountability, provides redress, when required, in instances where a party is convinced that the Court has failed to adequately dispense justice on the merits of the preponderance of evidence placed before it.
However, in practice, for the system of checks and balances to work, the hierarchy of the Courts must be respected. The constitutionally prescribed pre-eminence of the decisions of the Supreme Court must be accepted. While the argument on the non-appeal ability of the Supreme Court judgement could seem legally irrefutable, it is not to the negative argument that the facts of individual cases could thwart that assertion. To that end, this author seeks to explore where the power to set aside its own judgement by is derived from and instances when the Apex Court of Nigeria has had occasion to consider setting aside its judgements .
It is important to note the rarity of the Supreme Court, in any jurisdiction, to set aside an earlier decision made in the determination of the same case. This is because, there exists no constitutional provision for the Supreme Court to review its judgement. This should be differentiated from instances where a new decision of the Supreme Court overrules a previous one. The enacting provision of the Supreme Court, Section 235 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) connotes the intention for an air of finality to the decisions of the Supreme Court. However, the Supreme Court in a plethora of decided cases has gone out of its way to establish that it possesses the inherent power to set aside its judgement when it is deemed appropriate.
It remains trite that the power of the Supreme Court to set aside its own judgement is not derived from any legislative instrument, but from its inherent powers as a Court of competent jurisdiction. These powers go beyond any scope of legislation. Whilst the Court is quick to point out, as it did in the Uzodinma Case, that such inherent powers does not impose on it the powers to treat such instances as though it were an appellate jurisdiction, or as if the matter before it is another appeal intended to afford yet another opportunity to restate or re-argue appeals, it is without doubt that where the ground exists, the Supreme Court will not hesitate to set aside its judgements or orders and substitute them with more prudent ones.
2020 Emeka U. Opara “When Supreme Courts Set Aside Their Own Judgements” Thisday Newspaper Nigeria. Published on the 14th of February, 2020. https://www.thisdaylive.com/index.php/2020/02/14/when-national-supreme-Courts-set-aside-their-own-judgements/.
TO REVIEW OR NOT REVIEW.
As evident in the case to determine the gubernatorial elections of Imo State, the Supreme Court, whilst versed with the inherent powers to review its judgment, more often than not abstains from engaging in any exercise to set aside its judgment, unless it is substantially compelled to do so. The recent election cases of Bayelsa and Imo state have shown the apex Court’s reticence to entertain any application to review to its recent decisions. In dismissing the application filed by the All Progressives Congress (APC) asking it to reverse a judgement that sacked David Lyon as governor-elect of Bayelsa State, the seven-member panel of the apex Courtheld, just as it did in a similar application filed in the Imo State gubernatorial election dispute, that the application by the APC and Mr Lyon lacked merit and that the Court lacked the jurisdiction to review its own judgement.In a further punitive measure, the apex Court awarded the costs of N10 million to be personally paid by Mr Lyon’s lawyer, Afe Babalola, and APC’s lawyer, Wole Olanipekun to each of the three respondents – The People’s Democratic Party, the Current Governor of Bayelsa, and the Deputy Governor of Bayelsa State, Lawrence Ehruojakpo.
The availability of the inherent powers to review of the Supreme Court decisions divides opinion amongst scholars and interested parties. There is an argument to be made that the supremacy of the apex Court is not immune to the fallibility of human error. The argument that the absence of specific provision giving the Supreme Court the power to review its obviously bad judgement precludes the Court from setting aside same is necessarily flawed. This position was shared by Justice Chima Centus, a member of the panel which heard the Application for review filed on behalf of Mr Uzodinma who in a dissenting tone maintained that the Supreme Court had the inherent power to revisit its judgment, and asked his colleagues to do so in the interest of justice and to redeem its image, adding that except the judgment recently delivered was set aside, it would continue to hurt the nation’s electoral jurisprudence.
However, there remains a convincing school of thought that believes that if the apex Court is consistently implored to review its decisions, there would be no end to litigation. The argument in this case supposes that if the apex Court is robbed of the air of superiority and finality that accompanies its decisions, the floodgates would open and litigation would never end. The theory of law, expressed in the well-known legal maxim,“Interest republicaeut sit finis litium” which translates to “it is in interest of the state that there be limit to litigation would be defeated as would the doctrine of res judicata ,the fundamental doctrine that espouses that at all Courts there must be an end to litigation.
The Court in ADEDAYO V. BABALOLA (1995) LPELR-85(SC) held thus:
“The doctrine of res judicata of which issue estoppel is a specie, is a fundamental doctrine of all Courts that there must be an end to litigation. Public policy also demands that once a Court of competent jurisdiction has settled by final decision, the matters in contention between the parties, they should leave the Courts alone. The Courts should not encourage prolongation of a dispute and must also discourage proliferation of litigation hence the latin maxims: Interest reipublicaeut sit finis litium (Co. Litt. 303) and Nemo debetbisvexari, siconstat curiae quo sit pro una et eadem causa”
The recent decisions of the Supreme Court, with respect to applications for a review of its decisions show that the Apex Court’s attitude towards review is more in line with the second school of thought. It can be the only conclusion that can be made, in light of the punitive measures, (vis-a vis the awarding of exorbitant costs against the parties seeking for a review) the apex Court has taken to discourage a promulgation of applications of this nature. Nevertheless, one has to hope that as it is in many other jurisdictions, the Nigerian Supreme Court’s primary obligation is to the truth and is more vested in the interest of Justice over the preservation of the image of the Court.
2020 YahayaHalimah “Bayelsa: Why Supreme Court dismissed APC’s review application” Premium Times Nigeria Newspaper. Published on the 26th of February, 2020. https://www.premiumtimesng.com/news/headlines/379249-bayelsa-why-supreme-Court-dismissed-apcs-review-application.html.
The decision to review a decision of the supreme Court of any jurisdiction is one that should be taken with great poignancy. The apex Court is the number one Court in the land for a reason and that reason should be respected and its decisions should, in principle be final. However, it would be against the principles of the justice system if a party is denied the opportunity to seek redress for a decision foisted upon him, if he is genuinely convinced that the said decision was arrived at in error. While there conceivably could be merits to the argument that the appearance of an increase in the review of cases of the Supreme Court could lead to the opening of the floodgates and potential abuse of Court processes, the overriding need to protect the right to justice in litigation should supersede such fears. The recent attitude of the Courts might suggest a pattern of rigidity with respect to applications for review, however, there remains hope that maintaining the integrity of the Court would remain of significant importance to the apex Court and if it would take a review of a few of its decisions with considerable appearances of error, then so be it.
WRITER: TEMILOLUWA TAYO TIWO
EDITOR: MOTUNRAYO OLALEYE ACArb
PUBLISHER: BA LAW LLP