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Ruining the legacy of the Nigerian judiciary: A case study of the recent agitation of the decisions of the Supreme Court in pre-election and election by Kayode Ajulo, PhD

The recent applications by some persons to the Supreme Court for the review the decision of the apex court in the appeals which emanated from the decision of the Tribunals in the recently concluded elections is quite worrisome and disappointing to say the least.

It is disappointing in the sense that the parties involved are represented by eminent members of the bar who are (more) than familiar with the principle of law guiding appellate jurisdiction of the Supreme Court.

It is worrisome in the sense that the grant of this strange indulgence may open a window of uncertainty and in fact and corruption of the age-long legacy of the Supreme Court as enshrined in the doctrine of finality of judgement of the court and the desirability of putting an end to litigation.

In fact, in the celebrated case of Adegoke Motors v. Adesanya, Oputa JSC, of blessed memory, stated in clear terms that while reiterating the finality of the decision of the Supreme Court on issues submitted to it for determination that like other human contraption, the justice system may be susceptible to minor imperfection in some material particular, there must still be an end to litigation.

The only interpretation which may be given to the scenario which is currently playing out is that it is an attempt to rewrite to law, cow the Supreme Court to the ill-conceived public opinion sentiment which is currently being branded out in both the print and the social media by some persons; and an attempt to ridicule the Nigerian justice system.

For the avoidance to doubts and at the risk of repetition, through the entire gamut of appellate procedure, one principle is seen to be constant, that is there must be an end to litigation.

It is recognition of this that the Apex Court in Order 2 Rule 26 and Order 8 Rule 16 of the Supreme Court Rules states as follows:
(1) An application to strike out or set aside for non-compliance with these Rules, or for any other irregularity arising from the rules of practice and procedure in this Court, any proceedings or any step taken in any proceedings or any document, judgment or order therein shall only be entertained by the Court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
(2) An application under this rule may be made by motion and the grounds of objection must be stated therein. See Order 2 Rule 29 Supreme Court Rules
(1) The Court shall review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention.

A judgment or order shall be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted. See Order 8 Rule 18 of the Supreme Court Rules.

It is also important to state that the Supreme Court has the inherent powers to set aside its decision as decided in a long line of decided cases where there is fraud, mistake and where the decision is reached in the absence of or in excess of jurisdiction. All these instances have already been covered by the decision of the Supreme Court in the recent of NBA v Iteogu.

In the entire gamut of the Nigerian law, it is not provided anywhere that the Supreme Court can review its decision but rather correct mistake under the slip rule as provided in Order 8 Rule 16 of the Supreme Court Rules.

One thing is clear in the circumstances of these application for review. There is a seeming attempt by counsel to resubmit issues which have been or ought to have been submitted to the court for determination but which was not.

The law neither contemplates nor envisages a situation where a party who has every opportunity to submit to the Court all issues arising from the facts of his case but failed to do so, to now bring an application to the court to resubmit those issues under the guise of an application for review contrary to the age-long established principle of law as established in decided cases.

This, in my considered opinion, is what the influx of the application for review is all about and I still maintain the position that there must be an end to litigation and that end is reached upon the pronouncement of the judgment of the Supreme Court.

Conducting a solemn matrimony between the foregoing stated position of the law and the fact of the cases based on which the Supreme Court is currently being inundated/flooded by application for review, there is a revelation of a dark agenda by a section of the bar in cahoot with some politicians to cow the Supreme Court and to introduce public sentiment into issues which have been settled by the Court.

Flowing from the foregoing, In one of the cases, Party A contested the Election and was declared winner affecting polling the highest number of lawful votes cast and the victory was upheld by the Supreme Court.

Meanwhile before the election, there was pre-election suit challenging the candidacy of the of the Party A candidate on the ground that the deputy gave false information in form CF0001 which was submitted to INEC.

In both suit culminating to the decision to the Supreme Court parties submitted issues to the court for determination and based on those issues the Supreme Court arrived at a decision and made requite pronouncements.

In a rather surreptitious scheme by the Applicant now before the Supreme Court, the applicant is attempting to resubmit further issues after the Court had already granted them all avenue to submit all issues. If this may even be spared as a mistake of counsel, which by law cannot be, such strange indulgence will usher in an era of uncertainty in adjudication or litigation generally and also erode the long established and sacrosanct doctrine of the finality of the decisions of the Supreme Court.

I deliberating resist the temptation of delving into the facts of these cases as doing is tantamount to falling into the same pit with the applicants before the Supreme Court.

Furthermore, on the ground of public policy, entertaining an application for judicial review will open a floodgate of applications from all the 36 states of the federations. This time around, it will not be limited to election petition alone.

A distinction need to be made between a review and an appeal. An appeal is a judicial examination of the decision of a lower by a higher court. While a review is re-examination of a case previously decided with a view to correction a particular mistake and not an avenue to correct a view or substitute or abandon an earlier position. It is necessary to put it on record the law did not provide for review but rather correction pursuant to the slip rule as stated in Order 8 Rule 16 of the Supreme Court Rules.

EDITOR’S NOTE: Dr. Kayode Ajulo is a senior lawyer at the Nigerian bar and a social critic.

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