Supreme Court: Bayelsa Ruling Sends Signal To Other Applications

By John Chuks Azu & Clement A. Oloyed

Following the verdict of the Supreme Court in the application of the All Progressives Congress (APC) seeking a review of the February 13 judgement which sacked its governor-elect, David Lyon and his deputy, Biobarakuma Degi Eremionyo in Bayelsa State, many observers are wondering if the fates of other moves to seek the review of various judgements have been sealed.

A seven-member panel of justices of the Supreme Court, led by Justice Sylvester Ngwuta, on Wednesday, ruled that the application by the APC and Lyon lacked merit, was vexatious and constituted an abuse of court process.

The panel awarded a total sum of N60million against lawyers to the APC and Lyon, Afe Babalola and Wole Olanipekun, both Senior Advocates of Nigeria, to the Peoples Democratic Party (PDP), Governor Duoye Diri and his deputy, Lawrence Ewhrudjakpo.

A lead judgement read by Justice Amina Augie stated that granting the application would open the floodgate of such applications. She affirmed the finality of the court’s decisions, which they stated could only be changed by legislation.

The APC and David Lyon, former Bayelsa governor-elect, had sought to review the judgement of the Supreme Court which upheld the judgement of an Abuja Federal High Court, which in November 12, 2019, disqualified Lyon’s running mate, Degi Eremionyo for having multiple names in his academic certificates submitted to the Independent Electoral Commission (INEC) in form CF001.

Cases for review
In 2019, a total of 807 election petitions were filed in the aftermath of the elections, according to the INEC. Some of these include senatorial, House of Representatives and state assembly petitions, which by the provisions of the constitution ends at the Court of Appeal.

Of these election petitions, political parties in 22 states challenged the governorship elections. The cases decided include Osun, Rivers, Lagos, Oyo, Akwa Ibom, Ebonyi, Kaduna, Katsina, Lagos, Nasarawa, and Ogun.

Others are Abia, Delta, Niger, Taraba, Adamawa, Bauchi, Benue, Imo, Kano, Plateau, and Sokoto.

Following the conclusion on these appeals, political parties, especially the APC and PDP protested the decisions. The APC filed applications for the review of Supreme Court decisions in Rivers, Zamfara, and Bayelsa states, while the PDP filed for a review of the Imo decision.

The PDP, on February 23, went further by announcing to seek reviews in the presidential election petition judgement involving its candidate, Atiku Abubakar and President Muhammadu Buhari.

The publicity secretary of the party, Kola Ologbondiyan, also announced that the party would seek review in the decisions of Osun, Katsina, Kano and Kaduna states.

The APC also sought a review of the February 8, 2019 decision of the Supreme Court, which upheld the decision of a High Court in Port Harcourt, to the effect that the party did not conduct a valid primary ahead of the March 9, 2019 governorship election after a dispute between the Tonye Cole and Magnus Abe factions in the state.

A seven-member panel of justices, led by Justice Dattijo Muhammad, dismissed the applications for being “defective” and lacking in “merit.”

In the Zamfara case, members of the APC believed to be loyal to a former governor of the state, Abdulaziz Yari, brought an application for the review of the May 25, 2019 judgement of the Supreme Court, which held that the party failed to conduct a valid primary ahead of the March 9, 2019 governorship election.

In the second application for review brought by the counsel to the APC, Robert Clarke, a Senior Advocate of Nigeria (SAN), the party is contending that the apex court lacked jurisdiction in the consequential order made in the appeal number Sc. 3772019, which was read by Justice Adamu Galinje, declaring the votes polled by the party in the governorship, Senate, House of Representatives and state assembly as “wasted” and declared the party with the second highest valid votes (PDP) as winner of the election.

The case is expected to be heard tomorrow after the Supreme Court agreed with the counsel to the Senator Kabiru Marafa-led faction of the APC, Mike Ozekhome (SAN) that processes of the application have not been served on other members of the party in the matter from the 141st to the 178th respondents.

In the Imo application brought by Kanu Agabi (SAN), the PDP is asking the Supreme Court to set aside its judgement of January 14, which nullified the election of Emeka Ihedioha and declared Hope Uzodinma of the APC as winner after admitting results of 388 polling units, which he said were excluded.

But the PDP and Ihedioha are contending that the Court of Appeal had earlier struck out the petition by Uzodinma and the matter was not alive as at the time it was decided by the Supreme Court. They added that Uzodinma and the APC “fraudulently misled the court into holding that a total of 213, 495 votes were unlawfully excluded from the votes he scored in the March 9, 2019 election.”

Historical context of the reviews

The position of the Supreme Court in the Bayelsa review application supports the provisions of sections 1, 233 and 235 of the 1999 constitution, that it is the final court of the land. Section 235 provides thus: “Without prejudice to the powers of the president or governor of a state, with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.”

However, there are lawyers who believe that the apex court can reverse itself. For instance, Ugochukwu Ezekiel said the court could review itself in any matter, citing Adegoke Motor Ltd versus Adesanya (1986) 3 NLWR (Pt. 109) 250 at 274. He added that Mudiaga Odjei in a case got the apex court to reverse itself.

Olanipekun had cited the case of Oker Jev and Iyortorm and others (2015), NWLR Part 1483, 487 as one of the cases in which the Supreme Court reversed itself when it realized that it gave judgement based on a wrong interpretation of Section 133 (2), together with section 141 of the Electoral Act, 2010. It, therefore, ordered a run-off election in Benue State.

Olanipekun had recalled that the Supreme Court, in a criminal case, Uwazurike versus AGF, 2007 LPER 3448, said its judgement should not perpetuate injustice.

But Taye Oyetibo (SAN) argued that the application for review is “an undisguised application to violate section 235 of the constitution” on the finality of the Supreme Court.

Review could undermine credibility, stability of justice system – Yadudu, Ajulo

Reacting to the issue, Auwalu Yadudu, a professor of law, said it was a sad commentary on how litigants respond to losing a case at the highest court of the land.

“On one hand, they accuse the court of being compromised; on the other hand they come around to ask the court to review a decision it has taken,” he said, adding that the Supreme Court is not a court of first instance that one can keep coming back for a review of its decision.

He said if the apex court reviewed its earlier judgement, it would “completely undermine its credibility and the stability of our justice system.”

Speaking further, Yadudu said what the Supreme Court did in the case of Bayelsa was to give a notice. He added that the language of the justice that read the lead judgement “was really depreciating the role even senior lawyers play in leading politicians to ask for what they know the rules will not permit. It is a pointer to how it views such request. Also, the punitive award of damages on the lawyer sends a signal.”

“It is possible that the court can make mistakes. As they (Supreme Court) themselves have said, they are infallible but they are final. You can only wait for an opportunity in another case to seek for the court not to follow its earlier decision, which you consider to be wrong. But litigants who feel rather rightly or wrongly, that the decision was wrong cannot just come to the court again. This will mean that there is no end to litigation and the judicial system will be under a total disrespect,” he said.

Also speaking, a civil rights lawyer, Kayode Ajulo, said the Supreme Court was right to dismiss the application seeking to review the Bayelsa judgement. He said it would “serve as a guideline for counsels in the future.” He added that there was a difference between appeal and review, based on the original jurisdiction assigned to the Supreme Court by the constitution.

“Although a party has a right of appeal, that right ends upon the pronouncement of the judgement of the Supreme Court on the issues he submitted to the Court of Appeal.

“This is the position of the law as established by the long line of decided authorities. And it is so elementary that second year Law students are taught this as one of the foundational principles of law. What the counsels sought to do by the application is tantamount to asking the Supreme Court to tell the whole world that our entire jurisdiction is a joke,” he said.

All eyes are on the pending applications for reviews. Will they be withdrawn ahead of the proposed hearing, or the parties who filed them would pursue them with the belief that they fall within the bounds provided by Order 8 Rule 6 of the Supreme Court, which states that such applications must be for corrections on fraudulent presentation, clerical errors, accidental slips or to vary a part of the judgement.