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Delta Gov Election: Why Supreme Court may reverse itself (Parts 1 & 2) By Abdulsalam Ajetunmobi

March 23, 2012

The recent Supreme Court of Nigeria’s unanimous decision, setting aside the appellate courts’ judgments that (1) upheld the last year’s election of Kebbi State Governor, Alhaji Usman Seidu Dakingari and (2) affirmed the election of Delta Sate Governor, Dr. Emmanuel Uduaghan, in Sokoto and Benin respectively, has provoked controversy. The Lordships of the Supreme Court reached their conclusion on the grounds that the two appellate courts (in Sokoto and Benin) delivered their judgments contrary to provisions of section 287(7) of the 1999 Constitution, as amended, thereby making the matters of complaint by the appellants unworthy of being pursued at the Supreme Court.


Significantly, one of the appellants, Chief Great Ogboru, is reported to have filed an action before the Supreme Court for a possible reconsideration anew of the Court’s decision to strike out his appeal against the election of Uduaghan. I suppose Ogboru is alleging that the Supreme Court’s decision was sufficiently at variance with the principle of treating like cases alike. In other words, the allegation is that the Supreme Court rather based its decision against Ogboru’s petition solely on the competence/jurisdiction of the lower court pursuant to the constitutional 60 days limitation, whereas in a similar Kebbi State Governorship election petition case, two issues were, nonetheless determined, i.e., competence/jurisdiction of the lower court and the merit of the decision appealed against. Hence, the need for an action for a fair treatment before the Supreme Court in order to give the same legal effect to his petition as was done in the Kebbi case.


One may consider Ogboru’s suit as an act of desperation, of indignation, of discontentment or, indeed of all the three, but one should not consider it as an excuse for unnecessary protraction of legal matter. It needs to be observed that, treating like cases alike is central to the notion of justice. The principle of like treatment is invoked as a safeguard against apparent or potential arbitrariness, prejudice, preference, sentiment and discrimination. To act justly is to provide the same treatment to those individuals who come under the same category, or in other words, to those who are equal from that point of view. The importance of this principle of like treatment may be better illustrated by a mathematical proposition with a variable:


For instance, an act or decision of individual A (a judge) providing a certain treatment for individual B (a petitioner) may be considered by B as unjust either because of an infringement by A of the principle of equal treatment or because of a disagreement between A and B as to the proper formula (or the correct interpretation of a particular formula) to be applied in a given set of circumstances. Given this proposition, it means that in order to hinder a prima facie impartiality and favouritism, the formal principle of justice should, therefore, be understood as treating like cases alike, unless there is a legitimate (i.e. substantively just) reason to it. After all, if the constitutional right to be heard and treated fairly exits, nobody would wish to be denied of that basic right. In that respect, Ogboru, I think, is entitled to approach the Supreme Court to determine his expectation arising from, in the words of Uwaifo JCA (as he then was) in S.G.E (Nig) Ltd v. Okpanum (1989) 4 NWLR (115) 373, “the rehearing of a case on the printed record” (at 385), pursuant to the constitutional right of the litigant to be heard and treated fairly in any courts of law in Nigeria (more on this later).


That said: While the above analogy of treating like cases alike may seem intuitively clear, one might indulge in saying that the apparent object of the statutory restrictions of the time frame for elections petitions in the Constitution is to prevent the protraction of litigation of electoral disputes to an indefinite period. In Okoriji v. Ngwu (1992) 9 NWLR (PT. 263) 113, Ndoma-Egba JCA (as he then was), stated with compelling clarity that: “It now appears as a matter of general knowledge that defeated candidates in some elections are unwilling to concede defeat. They take the opportunity even on sliding stones to fight on until they drown. If some of them had the courage to acknowledge the success of their opponents, the transitional arrangement would have clinched and the country, set on the path of ‘true greatness’ unity and prosperity” (at 128). We need to remember that it took more than two years to reach final decision in July 2005, in the case of Buhari v. Obasanjo, before upholding the election of Chief Olusegun Obasanjo. Similarly, the case of Obi v. Ngige dragged on for a long time until the Court of Appeal finally nullified the election of Ngige after about three years in office of four-year tenure.


By setting aside the judgments of the two appellate courts on account of breaching the provision of the statute, one may want to argue, therefore, that the Supreme Court has, in effect, sent a clear message to, on the one hand, the citizen-litigants to face up to the failure of their electoral performances and avoid reiteration of unnecessary applications for an exercise of the revisory powers of the appellate courts and on the other hand, to the judges handling election petitions to ensure that they deliver their judgment and the reasons for that judgment within the time stipulated by law to relieve the litigants of uncertainty that could prevail until the judgment is delivered.


Yet, there is a regrettable difficulty with the construction of the statute by the Supreme Court in its decision to dismiss matters of complaint by the appellants on the grounds that there has been a violation of the time requirement in the Constitution. While it is essential that statutory provisions are observed to the letter, without doing violence to their intention and spirit, to my mind, the provision of s. 287 (7) are so deficient in providing adequate fault requirements or defences of liability that it is seriously unjust to punish, in this instance, those appellants whose cases have been affected by this constitutionally prescribed limitation period.


It is simply impractical to predict every contingency in the drafting of legislation, nonetheless, it is necessary not only that the laws be detailed, and that the hierarchical relations between laws be clear and unmistakable, but also that they be complete enough to apply straightforwardly to all possible cases. For present purposes, it is important to observe that, if this deficiency which resulted in setting aside of the appellate courts’ judgments as highlighted above is not rectified, it could be a recipe for injustice to all citizen-litigants currently affected by it. Besides, it has the danger of turning a statutory provision designed to remedy cunning protraction of litigation into a potential trap, and one which moreover be exploited by prospective litigants who may not wish to enter into election petitions altogether in good faith. And that will be a disaster, both for the justice system and its purpose for the country.


The plausibility of this argument rests, I think, on the assumption that no one is to be condemned in any judicial or quasi-judicial proceeding unless one has had an opportunity of being heard by an unbiased court or tribunal. As Onu, JSC observed in Edet Effiom v. State (1995) 1 NWLR (Pt 373), 507, the right to be heard is an important element of fair hearing (at 576), and this right is, as noted by Lord Reid in Ridge v Baldwin (1964) AC 40, “of universal application, and founded upon the plainest principles of justice,” (at 69). This observation may seem trite, but the point is this: Where court proceedings are stayed or dismissed by the higher court on the grounds of delay to issuing judgment by the lower court, the prejudice caused to the defendant, as a result, may have to be compensated. The stance required is a difficult one. But we must recognise that, whatever we say, this delay has been brought about, not by the appellants, but by the appeal courts’ lack of readiness in delivering their reasons for judgment pursuant to the provision of the legislation.


I want to point out, however, that the Supreme Court also declined its consent, as argued, rightly so, by the representative of Chief Great Ogboru, to invoke Section 22 of the Supreme Court Act 1990, so as to exercise natural justice and compensate for the prejudice caused by reason of the delay. The Supreme Court anchored its position on the phraseology of Section 287(7) of the 1999 Constitution and ruled that this has been firmly fixed like the Rock of Gibraltar. The precise wording, per Justice Mary Ukaego Peter-Odili, JSC, was: “It is settled law that the time fixed by the constitution for doing of anything cannot be extended. It is immutable, fixed like the Rock of Gibraltar. It cannot be extended, elongated, expanded, or stretched beyond what it states.” (Ogboru & or. v Uduaghan & or. (2012) SC 18/2012, p. 14)

But earthquake could avail to disturb the firmest of the rock. It seems to me that appealing to the concept of metaphysical absolutism, as is normally placed upon any theological creed by any ecclesiastical assembly to law, may seal off the dynamics of law growth in the country, though in the midst of a changing world. It is generally recognised among analytical legal scholars that when basic rights of citizens are offended, there is no reason of principle that the settled questions of law cannot be reopened, reargued and reconsidered in order to avoid the perpetuity of harmful error or prejudice.


Indeed, it is worth noting here the flexibility of the Supreme Court to reverse its previous decisions in order to correct injustices, as Oputa JSC has stated in Adegoke Motors Ltd. v  Adesanya & Odesanya (1989) 3 NWLR (pt 109) 250 S.C.: “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 incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per incuriam, such decision shall 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” (at 274-275).


Therefore, as a court of justice, the Supreme Court has the power to control its own procedure so as to prevent its being used to achieve injustice. It is no exaggeration to say, yet again, that the Justices of the Supreme Court are responsive to the call of justice and ever sensitive to the realistic perception of the stresses and strains of the contemporary Nigerian society. Indeed, the fact that the Supreme Court can overrule or explain away its earlier decisions is an indication that the law is a living idea that is concerned not so much with the logic of words but with the logic of realities. In this respect, it is useful to recall Lord Diplock observation, in Bremer Vulkan Schiffbau und Maschinenfabrik Respondents v South India Shipping Corporation Ltd. [1981] A.C. 909, that:


“Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory” (at 977).

In the circumstances, I want to suggest judicial re-examination of 60-day-limit petitions. I believe that the Supreme Court is composed of Justices who occupy a respected role in a growing global community of top jurists. The high level of intellectual ability and integrity of these Justices require that they consider to what extent they can compensate for the prejudice caused by the lower courts’ delay in issuing their judgment and reasons for that judgment within the time frame stipulated by the law. It must be remembered that the prejudice caused by inordinate delay in judgment by the lower courts is relevant to the question whether urgent circumstances exist for departure from the rule by the Supreme Court, in order to arrive at a just decision of the electoral disputes that have been struck out due to delay beyond the 60 days allowed by the statute.


By re-examining the decision setting aside the appellate courts’ judgments, this will strengthen the legitimacy of a powerful and high-profile Supreme Court in the end. True it is that, correction of constitutional decisions depends upon amendment of the constitution rather than mere court relief. But it should be observed that legislative remedies are slow, cumbersome and cautiously exercised with deference to the judiciary. But the English rule of relegating correction to the legislature should not be invoked. This is because the British Parliament, which possesses unlimited power, is free to overrule any judicial decision, and the remedy is quickly available and frequently exercised.


I also believe that the Supreme Court, like its counterparts in other jurisdictions, is equipped to develop a remedy to fill the gaps and uncertainties in the legislation as described above, thereby meeting the requirements of justice, though not by changing the law but by avoiding its effect in the special circumstance of particular case, in particular of Ogboru. For example, the equitable remedies of rescission, rectification, lien and specific performance which are part of Nigerian legal systems were previously judicial creations to fill the vacuum, the hole, the gap in the law which would otherwise be unsalvageable without recourse to the legislative assembly. Therefore, since the Supreme Court has not been timid in reversing its decision and maintaining a vigorous sifting process to keep the law free of archaic, unjust applications as well as ill-conceived precedents, arguably, equity should be seen as a remedy which it might apply if the law is deficient. It is imperative that Supreme Court’s decision setting aside the appellate courts’ judgments is considered anew.


•Dr. Ajetunmobi, Lecturer in International Law, University of Portsmouth, United Kingdom, wrote in via

Culled from Punch Nigeria, 16th and 23rd March 2012


One Comment leave one →
  1. Akpona Ejo permalink
    April 26, 2012 10:29

    Makes alot of sense. Nigeria we hail thee! For the Supreme Court to push the case aside because of the incompetence of the lower courts, is a very sad precedent being created by the apex court. Instead of correcting this abnormally, it wants to make such a case-study. We hail thee ever again!

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