Will Supreme Court Reverse Rivers, Zamfara Judgements? – TheNigerialawyer

By Ahuraka Yusuf Isah

On Thursday May 29, 2019, Chairman of the Presidential Advisory
Committee on Anti-corruption (PACAC), Professor Itse Sagay (SAN)
lodged an unexpected attack on the Supreme Court for the judgements
it delivered in the disputed All Progressives Congress (APC)
primaries in Rivers and Zamfara states.

The Supreme Court had on February 12, 2019 finally struck out
all pending appeals challenging the judgement of the Port Harcourt
Division of the Federal High Court which barred the APC from
fielding candidates in the 2019 general elections.

Justice Olabode Rhodes-Vivour led 5-man panel followed the apex
court judgement of February 8, 2019 which upheld the order of a
Federal High Court, Port Harcourt, nullifying the APC primaries in
Rivers State.

The trial court had held that the primaries were held in
disobedience to a court judgement barring the party from conducting
congresses pending the determination of a suit filed by 22
aggrieved members of the party.

Again, Supreme Court on May 24, 2019 nullified the elections of
all the candidates of the APC in Zamfara State in the 2019 general
elections.

Delivering a unanimous judgment of the five-man panel led by the
Acting Chief Justice of Nigeria, Justice Tanko Muhammad, the apex
court declared the first runners-up in the 2019 general elections
in the state as the winners of all the posts earlier declared to
have been won by the APC and its candidates.

Justice Paul Galinje, who read the lead judgment upheld the
decision of the Sokoto Division of the Court of Appeal to the
effect that the APC did not conduct any valid primary election and
as such had no candidate for any of the elections in the state.

He described the votes polled by the APC candidates in the
elections as wasted, adding that the party and the candidates with
the second highest votes and the spread in the various elections
were the valid winners.

In other words, the 36 positions including governor and his
deputy’s seats, 3 senate, 7 Reps members and 24 state House of
Assembly seats were lost in one swoop to the PDP by the APC.

Professor Sagay however described the separate Supreme Court
judgements, although in pari material, or on the same subject
matter (appeal) which is the invalid conduct of primary elections
in Rivers and Zamfara states by the APC at the build up to 2019
general elections, as ‘’travesty of justice’’.

Professor Itsejuwa Esanjum Sagay (SAN), simply known as
Professor Itse Sagay is a distinguished legal scholar, Professor of
Law and human rights activist and the former Dean of the Faculties
of Law at Universities of Ife and Benin respectively, a
constitutional law expert and Senior Advocate of Nigeria. He is
unarguably fast becoming the greatest critics of institutions and
individuals not courting President Buhari’s political interest.

The Delta state (Ugheli) born and Supreme Court of Nigeria
Amicus Curia was appointed by President Muhammadu Buhari in August
2015 as the Presidential Advisory Committee on Anti-corruption
Chairman to advice his administration on prosecution of the war
against corruption and the implementation of required reforms in
Nigeria’s criminal justice system.

Sagay began the scathing remarks on institutions or individuals
while serving under the Buhari administration when on April 16,
2016 he delivered a paper titled “A Farewell to Election
Petitions”, which he referred to as ‘’a Summary of his review of
the Supreme Court decision in the Rivers State Governorship Case of
Wike v. Peterside.

Wike Vs Peterside Judgement Attack

Supreme Court heard and delivered judgement in appeal number
SC.1002/2015, between Wike Ezenwo Nyesom and Hon. (Dr) Dakuku Adol
Peterside & 3 Ors on January 27, 2016; with reason for the
judgement subsequently given on February 12, 2016.

In his lead judgement, Justice Kudirat Motonmori Olatokunbo
Kekere-Ekun dismissed the concurrent judgments of the Tribunal and
the Court of Appeal and consequently return Nyesom Wike as the duly
elected Governor of Rivers state.

‘’The generalized evidence led by mobile policemen, officers of
the Department of State Security and Military Officers were against
unidentified individuals and unidentified PDP thugs.

‘’For the evidence of disruption, violence and corrupt practices
to warrant the nullification of the entire election in Rivers
state, the 1st and 2nd respondents had to first prove the
non-compliance polling unit by polling unit, ward by ward. They
must also establish that the non-compliance was substantial and
affected the result of the election. It is only when this is done,
that the respondents are to lead evidence in rebuttal. The 1st and
2nd respondents herein failed to bring their cases within these
parameters.

‘’It is my view that the Tribunal and the court below were
unduly influenced by the alleged failure of INEC officials to
adhere to INEC’s Manual, Guidelines and directives on the exclusive
use of the Card Readers for accreditation and heresay evidence and
thereby, with due respect, came to the wrong conclusions. I hold
that the appellant has shown sufficient reason for this court to
interfere with the concurrent findings of the Tribunal and the
court below’’.

But Sagay argued otherwise. He said ‘’the Wike v. Peterside
Supreme Court decision constituted the most devastating judicial
blow on Democracy, the Rule of Law and Free, Fair and Credible
Elections this country has ever seen. Not only have incredibly high
and insurmountable barriers against election petitions been erected
by that decision, it also gives an indomitable rock like status to
anyone, who by blood, mayhem, violence, massive irregularities,
fights his way on to the governorship seat; indeed, any electoral
office. He is assured of unshakeable, solid tenure for 4 years. The
full implication of the Supreme Court’s decision in Wike v.
Peterside is: “when you prepare for Elections, prepare for War”.
This judgment constitutes, “A Farewell to Election Petitions”.

The Electronic Card Reader Machine for accreditation of voters
was provided for in the Approved Guidelines and Regulations for the
conduct of the 2015 General Elections. Prior to the authorization
of its use by the Guidelines, Sections 49 (1) and (2) of the
Electoral Act 2010 (as amended) had adopted analogue procedure for
the accreditation process. The National Assembly perhaps went to
sleep by not amending the Electoral Act in order to replace the
Voters’ Register (analogue procedure) with the Card Reader Machine,
in order to serve as the sole determinant of valid accreditation
process.

The 7-man panel of the Supreme Court led by the Chief Justice of
Nigeria, Justice Mahmud Mohammed in the appeal number SC.1004/2015
in the matter between EDWARD NKWEGU OKEREKE (APPELLANT) AND NWEZE
DAVIDUMAHI AND OTHERS (RESPONDENTS), held that; ‘’…since the
Guidelines and Manual which authorized the use and deployment of
the electronic card Reader Machine were made in exercise of the
powers conferred by the Electoral Act, the said Card Reader cannot,
logically, depose or dethrone the voters’ Register whose judicial
roots are firmly embedded in the selfsame Electoral Act from which
it (the Voters’ Register), directly, derives its sustenance and
currency’’.

Hon. Justice Chima Centus Nweze, who delivered the lead judgment
said “the lower court was right in holding that the Card Reader
Report was incomplete, unreliable and incapable of proving the
appellant’s allegation of improper accreditation/over-voting’’.
Should Voters’ Register or Card Reader Machine Report be the
determinant of valid accreditation? This had been the basis of
conflicting judgment amongst the Court of Appeal Divisions
recently.

But, again felt otherwise. He said in his same paper, “A
Farewell to Election Petitions”, that the Supreme Court, in
rejecting the use of the Card Reader adopted its earlier views on
the matter in Okereke v. Umahi S.C. 1004/2015, that the use of the
Card Reader would ‘dethrone’ and ‘depose’ the Voters’ Register
“whose judicial roots are firmly embedded or entrenched in the
selfsame Electoral Act from which it (Voters’ Register) directly
derives its sustenance and currency” – per Nweze, JSC. The question
may be asked, how does the Card Reader ‘depose’, or ‘dethrone’ the
voter’s Register.

‘’The sum total of the role of the Card Reader is that it is
complimentary to the usage of the Voters’ Register.” So where in
all this did Nweze, JSC, discover the ‘deposition’, and
‘dethronement’, of the Voters’ Register by the Card Reader?
Absolutely nowhere. What Nweze, JSC, had simply done was to give
the Card Reader a bad name in order to subject it to judicial
execution.

‘’Section 15 of the Electoral Act clearly empowers the INEC to
issue Regulations, guidelines and manuals for the purpose of giving
effect to the provisions of the Act and its Administration thereof.
Introduction of Card Readers is doing exactly that. By law, the
guidelines thus issued are as potent as the permitting law, i.e.,
the Electoral Act itself.

‘’It follows that if all the Card Reader does is to enhance,
improve and promote the capacity of the Voters’ Register to ensure
or guarantee, free, fair, credible and transparent elections, the
Card Reader could NOT in any sense have ‘deposed’, ‘dethroned’ the
Voters’ Register as Nweze, JSC, wrongly asserted in Okereke v.
Umahi

‘’ The Voters’ Register could only be regarded as having been
dethroned and deposed if its purpose in the Electoral Act was to
promote fraud, rigging and massive irregularities. In other words,
it is only when its role and purpose is in conflict with that of
the Card Reader, that it can be said to have been dethroned and
deposed by the Card Reader, because the two would then be working
at cross-purposes with each other.

Rivers And Zamfara Judgement Attack

In a statement he sent to journalists titled, ‘’Supreme Court
Judgement on Zamfara APC: The Judiciary As Alternative
Electorate’’, Sagay stated that the Zamfara and Rivers state
judgments are a national tragedy. We should not allow our legal
system to throw up such unimaginable injustice.

“This major judicial disenfranchisement of the Zamfara and
Rivers electorate should be reversed. I advise the APC legal team
to apply for a review of the two judgments. Their Lordships ought
to be given an opportunity to reverse this unprecedented tragedy.
The prefix ‘Justice’ preceding the names of Supreme Court and Court
of Appeal judges is significant, for it prescribes what they stand
for and what they represent: justice!”

Sagay pointed out that in the governorship election in Zamfara,
the APC candidate scored well over 500,000 votes while the PDP
candidate scored just over 100,000 votes. He noted that the APC won
all three Senate seats in the state, seven House of Representative
seats and 24 state House of Assembly seats.

The statement reads in part: “By this judgment, the landslide
APC victories in the governorship, Senate, House of Representative
and House of Assembly elections are transferred to the PDP. If the
APC primaries were defective, should the electorate be deprived of
their democratic and constitutional rights to vote? Is the
electorate to be punished for the transgressions of party
officials?

“Should the judiciary replace the electorate’s decision and
install losers in office? Could the judiciary not have drawn on the
deep recesses of its intellectual capacity, authority and its
inexorable commitment to justice, to prevent this undemocratic
calamity? “Can the APC officials not be punished, for their lapses
without denying the electorate their democratic rights? Should the
judiciary take over the electoral rights of the electorate? Is this
not a clear case of technical law completely overthrowing
justice?

“Have the members of the Supreme Court not achieved a level of
creativity and authority to provide a solution without burying
democracy and taking over from the registered voters as the
judicial electorate? If this judgment had been an international
one, it could have been described as ‘shocking the conscience of
humanity.’ In this case, it shocks the conscience of Nigerian
humanity.”

Citing several authorities, Sagay said the Supreme Court is
specially endowed with the power and authority to do justice and to
ignore law when it is technical and would create injustice, and to
avoid at all costs a mechanical approach to the interpretation of
the law. Now, has justice been served in Rivers and Zamfara states?
No! In one case, innocent electorate in their hundreds of thousands
were prevented from voting for their party by judicial order.

“In Zamfara, where voting took place, the verdict of the
electorate was taken away from the victorious party and awarded by
the judiciary to the woeful losers. In the next four years, Zamfara
state will be governed by a party and politicians rejected by the
electorates. This indeed shocks the conscience of Nigerian
humanity,” Sagay stated.

Curiously, lawyers are divided on legality or illegality of the
law professor’s arguments. While some disagreed on seeking Supreme
Court review of the judgements in Zamfara and Rivers states, others
dismissed such urge as odious or mere academic exercise to waste
apex court’s precious time.

CONDITIONS FOR SUPREME COURT TO REVERSE
SELF

Given the doctrine of stare decisis (judicial precedent), can
the Supreme Court overrule itself in particular after proceedings
have been concluded and are final (res judicata)?

If the decision is based on a law that National Assembly has
passed, parliament can simply change the law. If the decision is
based on the Constitution, the Constitution can be amended.
Finally, Supreme Court can decide that a certain decision was
wrong. For example, the Supreme Court’s decision in Brown v. Board
of Education (USA) effectively overruled the decision in made 58
years before in Plessy v. Ferguson.

According to a columnist, Barr Omoba Oladele Osinuga, in his
article titled, ‘’Revisiting the Supreme Court decision in Engineer
Goodnews Agbi, Anthony Alabi and Chief Audu Ogbeh & ors in
light of the decision of Southwark Crown Court in R v Ibori’’,
opined that conditions precedent for the apex court to reverse is
very limited; this he espoused with the decided cases in
question.

The decision of the Supreme Court in Engineer Goodnews Agbi,
Anthony Alabi and Chief Audu Ogbeh & ors S.C. 63/2005 is
surmised by the following remarks by Dahiru Musdapher, J.S.C (as he
then was) the case, an appeal against the decision of the Court of
appeal, Abuja Division delivered on 21st day March 2005, wherein
the Court of Appeal dismissed the appellants’ appeal and affirmed
the decision of the trial High Court.

The crucial issue is whether the 4th respondent herein, Governor
James Onanefe Ibori of Delta State has been properly and adequately
identified by the appellants, during the trial in the High Court,
as the James Onanefe Ibori who was convicted by the Upper Area
Court, Bwari in case No CR-81-95, C.O.P vs. James Onanefe Ibori on
the 28th September, 1995 for the offences of negligent conduct and
criminal breach of trust and sentenced accordingly.

The matter started this way: On the 28th of September, 1995, the
Upper Area Court Bwari FCT in a criminal case No CR-81-95 convicted
one James Onanefe Ibori for the offences of negligent conduct and
criminal breach of trust under Summary Trial Procedure under the
provisions of Section 157 of the Criminal Procedure Code of the
former Northern Region of Nigeria, applicable to the Federal
Capital Territory, Abuja. The said convict was sentenced to a fine
of N1000 or one year imprisonment on the information.

The issue before the Supreme Court in this was whether James
Onanefe Ibori then Governor of Delta State was the same James
Onanefe Ibori who had been convicted by the Upper Area Court, Bwari
in case No CR-81-95, C.O.P vs. James Onanefe Ibori on the 28th
September, 1995. In his pleading before the Supreme Court and at
every stage of the proceedings which commenced by way of
Originating Summons brought by the (plantiffs in the High Court and
Appellants in the Supreme Court case Engineer Goodnews Agbi and
Anthony Alabi) in the High Court of the Federal Capital Territory
(hereinafter referred to as FCT) against Chief Audu Ogbe, Chief
Vincent Ogbulafor, Peoples Democratic Party and Independent
National Electoral Commission (later struck out as a defendant on
the application of the plaintiffs) seeking a declaration that James
Onanefe Ibori is by virtue of the conviction aforesaid at Bwari
Upper Area Court is not qualified to contest election as the 3rd
respondent’s gubernatorial candidate for the 2003 Delta State
Governorship Elections. In its decision the Supreme Court affirmed
the decisions of the lower courts and dismissed the appeals.

In the Queen v. James Onanefe Ibori (Case No. T20117192) on 17
April 2012 at Southwark Crown Court, London before Justice Anthony
Pitts having pleaded guilty James Ibori was convicted and sentenced
to 13 years imprisonment with a likely release of 17 October 2012
on 7 counts of money laundering contrary to Section 93 of the
Criminal Justice Act 1988 and Sections 327, 328 or 329 of the
Proceeds of Crime Act 2002, 1 count of Conspiracy to defraud under
the Common Law and contrary to Section 12 of the Criminal Justice
Act 1987, 1 count of Dishonestly obtaining property by deception
contrary to Section 15 of the Theft Act 1963 as amended from 15
January 2007 by the Fraud Act 2006 and 1 count of conspiracy to
launder money contrary to the Sections 327, 328 or 329 of the
Proceeds of Crime Act 20021 count of forgery – making a false
instrument, with the intention to induce somebody to accept it as
genuine contrary to Section 1 of the Forgery and Counterfeiting Act
1981.

Furthermore the Crown Court at Southwark took judicial notice in
the distinguishing features and facts of James Ibori previous
conviction in the UK of theft from a Wickes Store Ruislip,
Middlesex (where he worked as a cashier) in 1991 and for credit
card fraud in 1992, facts which he lied about when standing for
public office in Nigeria.

The Southwark Crown Court in doing so placed reliance on the
submission of learned Counsel for the Crown Ms Sacha Wass Q.C who
made copious references to James Ibori’s violations of Sections 182
and 185 of the Constitution of the Federal republic of Nigeria
(CFRN 1999). The court’s stance going at great lengths to rebut the
argument advanced by the learned Counsel for the defence Nicholas
Purnell Q.C that James Ibori did not violate CFRN 1999 since the
Prisoners Rehabilitation of Offenders Act of 1984 nullified such
convictions after five years. In the course of this discourse I
shall examine the provisions of Sections 182 and 185 of CFRN 1999.
Importantly Section 182 of the Constitution is the casus belli of
the Supreme Court case of Engineer Goodnews Agbi, Anthony Alabi and
Chief Audu Ogbeh & ors though curiously there is no express
reference to this section in the Supreme Court judgement of this
case but as noted in the learned Dahiru Musdapher, J.S.C (as he
then was) summary of the case stated above implicit references are
made to this section during the course of the proceedings given
that this was the rationale for the appellants in initiating the
suit in the first place.

The decision in Queen v. James Onanefe Ibori in my view has a
significant impact of the ‘safety’, fairness and the interests of
justice given the outcome and decision of Engineer Goodnews Agbi,
Anthony Alabi and Chief Audu Ogbeh & ors. Given the principles
of finality of proceedings (res judicata), stare decisis judicial
precedent binding the court, the dispensation and administration of
justice rests on the foundation of enduring truth, fairness and
equity.

Reopening a previously decided Supreme Court
case

The Supreme Court generally in following the doctrine of stare
decisis is bound by its previous decisions. This principle of
judicial precedent is not unique to our Supreme Court but is a
common feature of Superior Courts of record in Common law
jurisdictions. It is also related to the principle which ensures
that there is a finality of proceedings (res judicata) in the
matter that is being adjudicated. This rule that the judgement
being final and conclusive having being determined by the court
with jurisdiction is however subject to in some cases to certain
rare exceptions. Thus under this general rule there are indeed
occasions when the Supreme Court departs from being bound by its
previous decision.

The exceptions to the Supreme Court from departing from its
previous decisions as judicial precedent or in an existing case
setting it aside can be done for a number of limited reasons. These
include if it is in the interests of justice to depart from such
decision, the original and initial decision has been obtained by
dishonest and fraudulent means by the parties and the decision was
such that if was allowed to subsist and prevail it would have a
grave and detrimental impact and effect on the administration and
delivery of justice.

These reasons are eloquently expressed in obiter dictum remarks
of P. Nnaemeka-Agu J.S.C who delivered the judgment in Francis
Asanya and The State (1991) SC.43/1990, 3 NWLR (Pt.180), (1991) 4
SCNJ 1, (1991) 4 S.C 42. The learned P. Nnaemeka-Agu J.S.C
reasoning has been the guiding principle of the Supreme Court in
respect of previous decisions of the Court.

P. Nnaemeka-Agu J.S.C states that, “Previous decisions of this
Court are binding on this Court until overruled or departed from.
Departing from previous decisions is not a matter to be lightly
embarked upon. The court can only be persuaded to depart from
previous decisions if the previous decisions were proved wrong
given per incuriam, and perpetuating injustice.”

“This court respects precedent, even though it is not a court
bound by precedent. It is, as here as in many other parts of the
Commonwealth, essential for the certainty of the law that it should
generally follow its previous decisions. But, as a court of
ultimate resort, it need not do so when the interest of justice
dictates otherwise. So it will not hold itself hamstrung by
precedent when it has been shown that an established principle is
beset with a substantial error such that to follow it will amount
to furthering injustice.” (see at P.31, paras. E – G and Pp. 18-19,
paras. G-B)

The learned Justice citing the cases of Odi v. Osafile (1985) 1
S.C. 1 (1985) 1 NWLR. (Part 1) 17; Bucknor-MacLean and Anor. v.
Inlaks Ltd. (1980) 8-11 S.C. 1 stated that,’’The court has a twin
duty to see that (1) justice is founded on the correct view of the
law and (2) justice is not slaughtered on incorrect interpretation
and application of the law and equity. The pursuit of these ideals
are to go hand-in-hand with the pursuit of the ideal of certainty
in the law.

This court respects precedent, even though it is not a court
bound by precedent. It is, as here as in many other parts of the
Commonwealth, essential for the certainty of the law that it should
generally follow its previous decisions. But, as a court of
ultimate resort, it need not do so when the interest of justice
dictates otherwise. So it will not hold itself hamstrung by
precedent when it has been shown that an established principle is
beset with a substantial error such that to follow it will amount
to furthering injustice. (Pp. 18-19, paras. G-B)

The learned Nnamani, J.S.C. also encapsulated these principles
in James Orubu v. National Electoral Commission & 13 Ors.
(1988) 5 NWLR (Pt.94) 323 (also in (1988) 12 S.C.N.J. 254 (at page
276). In the same case the learned Uwais, J.S.C opined that.

“It is indeed well-settled that this Court does not ordinarily
depart from its decision unless it is shown that the decision has
over a period of time perpetuated injustice through the doctrine of
stare decisis or it has impeded the development of law or it is in
fact against public policy or the decision was given per incuriam.
(James Orubu v. National Electoral Commission & 13 Ors. (1988)
5 NWLR (Pt.94) 323 P.35, Paras.D-E).

Celestine Omehia Vs Chibuike Rotimi Amaechi
Case

On November 2, 2009, Supreme Court dismissed Celestine Omehia’s
application seeking for review of its judgement of October 25, 2007
which removed him and declared Rotimi Amaechi as the governor of
River state.

Amaechi who won Rivers state PDP governorship primary in
December 2006 was substituted with Omehia, and early in 2007,
Amaechi filed a suit challenging his substitution against the April
14, 2007 elections.

Supreme Court in this case of AMAECHI v INEC [2008] 5 NWLR
[PT.1080] 227 resolved the issue of the wrongful substitution of
candidates of Political Parties during elections. The Court held
that Amaechi was wrongly substituted with Omehia by PDP and that in
the eyes of the law, Amaechi who didn’t contest the election was at
all times the legal candidate of PDP at the elections, and
proceeded to declare him as Governor of Rivers State.

But Omehia re-appealed saying the apex court made a mistake and
the judgement contradicted some provisions of the 1999
Constitution.

But 7-man panel led by Justice Alloysius Kastina-Alu described
the suit as frivolous and an act of judicial rascality, and
accordingly dismissed it with N100,000 cost, saying even if it was
a mistake, the apex court has a right to make a mistake. They
insisted Amaechi remained the legitimate governor, and that was
final regardless of whether it was rightly or wrongly entered and
that there was nothing anybody could do about it. He said that if
anybody was aggrieved by the court’s decision, the proper place to
appeal was in heaven where God Almighty reigns supreme and not in
Nigeria where they held sway; adding that “only God can reverse the
October 25, 2007 verdict.”

Culled from Leadership

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