Revisiting Kubor Vs. Dickson: Should The Supreme Court Take A Second Look? By Richard Turner Esq.

This article is not meant to appeal to lawyers alone, and for this sole reason, it will be written in plain English, devoid of legalese, and boring citations. Citations will be used only if absolutely necessary.

Kubor v. Dickson is well known for a number of reasons. To be clear, the full rendition of the case particulars is Dr. Imoro Kubor & Change Advocacy Party v. Hon. Seriake Henry Dickson, Peoples Democratic Party & Independent National Electoral Commission (SC.369/2012).

The mere mention of the case brings to fore the application of the provision of section 84 of the Evidence Act, 2011, including the need for certification of e-documents where the originals are public documents in order for those documents to be admissible in evidence. In other instances, it screams of the tacit endorsement of the usage of interim injunctions as final judgments of court, and a disregard for the rule of law; the Supreme Court itself lending credence to this in its judgment. I will concern myself with this latter part.

Let us take a journey back to where it all began, and why the Supreme Court reached the decision it pronounced on that fateful day.

The gubernatorial elections of 2012 in Bayelsa State was fast approaching. Political parties were in the process of conducting primaries and choosing their various standard bearers. Dr. Kubor was the standard bearer of the Change Advocacy Party (CAP), while, at the material time, H.E. Timipre Sylva was the incumbent governor of Bayelsa State, and standard bearer for the Peoples’ Democratic Party, and his name had been submitted to the Independent National Electoral Commission (INEC).

There was some infighting within the PDP, and Mr. Sylva had approached the Federal High Court for an injunction restraining the PDP from conducting a subsequent primary election to choose another standard bearer. The Court granted this restraining order.

Whilst the restraining order was still subsisting, Hon. Dickson (now H.E. the Governor of Bayelsa State) approached another court for the inclusion of his name in the ballot. That Court granted his request. Having been added to the ballot, Mr. Dickson became the standard bearer for the PDP.

In a move that still stuns me whenever I think about it, Mr. Dickson withdrew the substantive suit after he had obtained the exparte order; an interim injunction. Now, for those of you who are not lawyers, here’s what you should understand. An interim injunction has a lifespan. It is not a final judgment of court, and is usually made to last until the determination of another application for the same reliefs which must have been argued on notice amongst the parties to the suit. This never happened. H.E. Seriake Dickson withdrew the substantive suit.

What you should know is that an interim order lives an extremely short life, and during its life time, it derives breath from the substantive suit, the basis of which it was given in the first place. Where the suit is withdrawn, the plugs are pulled on the interim order, and it breathes its last, gives up the ghost, and is buried.

However, in Kubor v. Dickson, the Supreme Court of Nigeria, called forth the Lazarus in the interim order obtained by Hon. Dickson, and before our very eyes, we saw that order walk out of its tomb in grave clothes, drawing breath with every step, and receiving life, as my Lord, Justice Onnoghen penned the words of the lead judgment, which received the concurrence of the other Justices on the panel. The face of the law was changed forever.

My Lord, himself, would later suffer in the hands of an unjust interim order, made exparte, and given eternal life by another arbiter who wielded an unjust sword, but a sword nonetheless.

Never before had the Nigerian legal system experienced such needless disruption, with due respect to my Lords at the Apex Court. A long line of cases had consistently held the interim order to be what it is; an abiku, living just for as long, until an interlocutory injunction pronounces ‘him’ dead.

What was the said interim order?

The learned judge of the Federal High Court held as follows:

“(2) An order that the leave of this Honourable Court so granted shall operate as an order of interim injunction directing the respondent to restore the name of the applicant as the candidate of the Peoples Democratic Party (PDP) in the 2012 Gubernatorial Election in Bayelsa State scheduled to hold on the 11th day of February, 2012, pending the determination of the motion on notice… (emphasis mine)

(4) An order that the leave of this Honourable Court so granted shall operate as an order of INTERIM INJUNCTION restraining the respondent from further removing or excluding the name of the applicant and his running mate as the duly nominated candidates of the Peoples Democratic Party (PDP) in the 2012 Gubernatorial Election in Bayelsa State scheduled to hold on the 11th day of February, 2012, pending the determination of the motion on notice. (emphasis mine)”

The respondent referred to in the interim order above was the Independent National Electoral Commission (INEC).

As you have already noticed, I have emphasized the concluding parts in both orders. The effect of those parts is that the interim order of the Federal High Court was only meant to be in operation until the interlocutory application had been decided by the Court. That interlocutory application was never decided. In fact, the matter was withdrawn by Hon. Dickson.

What happens to the interim order made exparte after the substantive suit has been withdrawn? I am of the firm opinion, and this is supported by several judicial authorities, that the order is washed off, and becomes of no effect whatsoever. But the Supreme Court was of a different opinion. In fact, the Court asked its own questions, thus:

“The legal question in this issue is whether whatever such interim orders achieved in the interim can be ignored or considered nonexistent after the expiration of the time it was in operation particularly when the order is mandatory in nature and the command had been obeyed? Can the law undo what had been done in obedience of court order in the circumstances of this case?”

Great question, I must say. But the question seems to be unnecessary, again with due respect to the Court. For the records, the answer to the Court’s questions is a resounding yes. And this is because, when the law has prescribed what should be done, questions about whether the law should be obeyed are proscribed.  The law should simply be obeyed. Besides, an interim injunction is never a perpetual injunction.

I should ask a few questions of my own. Why was the Supreme Court eager to uphold the disobedience of the PDP to a subsisting court order? Why did the Supreme Court not frown at the abuse of court process perpetrated by Hon. Dickson, who went to shop for another court order in defiance of a subsisting order on the same subject matter?

What the Supreme Court seems to have established through Kubor v. Dickson is that when an interim order has been obtained, the substantive suit is useless. Because, according to the Court, the litigant in whose favour the order has been given, has the upper hand, and leaves us all helpless, and more helpless, it seemed, were my Lords at the Apex Court. For, to them, it was better to leave undisturbed, the ‘victory’ won by a disregard for the rule of law, than uphold the rule of law.

It is possible that the consequences were unintended, but this is what it is. Today, exparte orders are now being used indiscriminately because Kubor v. Dickson set a dangerous precedence.

Is there anything the Supreme Court can do?

Yes! The Supreme Court can overrule its decision in Kubor v. Dickson, and do what is right. I am not sure if the opportunity would present itself, since the Court will not move itself. The Court has to be moved by the litigant. Maybe Dr. Kubor should consider applying to the Court for a review of the decision.

We have, in recent times seen bold decisions given by the Supreme Court. Very bold decisions. Decisions given regardless of whose Ox was gored.

The Zamfara example was awe-inspiring, and irreproachable. This decision saw all the members of the All Progressives Congress (APC) who were earlier elected into different positions lose their seats to those who had second highest votes. The Supreme Court’s decision here was simple. APC could not have won the elections since it had no valid candidates in the said polls. The candidates with the second highest votes were declared winners.

It would interest you to know that the dynamics that played out in Zamfara State was also similar to what played out in Bayelsa State. There were internal tussles within the parties. INEC had to take tough stances against the parties. In Zamfara, INEC banned APC from submitting names of candidates. In Bayelsa, Hon. Dickson was excluded from the names published by INEC. INEC also did not take part in the subsequent PDP primaries that produced Hon. Dickson. In both instances, Court orders were obtained to force INEC to place the candidates on the ballot.

The Supreme Court gave a decision in Kubor v. Dickson, which it could not give in the Zamfara instance, despite the fact that both cases were almost on all fours when compared.

Rivers State presented a slightly different set of facts, but I will like to commend the Supreme Court for the judgment it gave. This should sanitize the political sphere in subsequent elections, sending the strong message that it will no longer be business as usual.

I think Dr. Kubor should approach the Supreme Court for a review of the 2012 decision. The Supreme Court needs to overrule this decision to expunge from our jurisprudence any blight that would make us look back in sadness and trepidation at the state of our judicial pronouncements.

I know I promised not to use unnecessary citations, but this is just too good to throw away. In Adegoke Motors Limited v. Adesanya & Anor. (1989) 3 NWLR (Pt. 109) 250 at 274 the Supreme Court per Oputa JSC (of blessed memory) said:

“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 inestimable good through its wise decisions. Similarly, the Court can do incurable harm through its mistakes. When therefore it appears to learned counsel that any decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such decision shall be overruled. This Court has the power to overrule 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.”

Where there is a wrong, there is a remedy. The Supreme Court needs to remedy the wrong which Kubor v. Dickson is, and this should be done timeously. I know you are asking many other questions, but I will leave the answers to those questions for Dr. Kubor, and his lawyers to answer, and act upon. I sincerely expect to see some legal fireworks soon.

God bless the Federal Republic of Nigeria.

Barr. Richard Turner

pastorrichardturner@gmail.com