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The Supreme Court of Controversies

Eric
October 29, 2023
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By Eric Elezuo

When on October 25, 2023, the Supreme Court fixed Thursday, October 26, to deliver final judgements in the two surviving petitions challenging the legality or otherwise of the declaration of President Bola Tinubu as winner of the last presidential election, many Nigerians received the news with mixed feelings as a result of the muffled belief that justice will not be done. It was circulated in many quarters that the ability of the Supreme Court to deliver justice was more of utopic feeling. This is because of the obvious, which points to the fact that many had lost faith in the judiciary, the Supreme Court most especially; no thanks to the myriad of controversial judgments it has delivered in recent times.

The petitions in question were those filed by the presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar, and his counterpart in the Labour Party (LP), Peter Gregory Obi.

A 7-man panel of Justices of the Court led by Justice John Inyang Okoro had earlier taken final arguments from lawyers to the parties in the petitions. The Justices had thereafter reserved their judgments.

As foreseen, the seven-man justices dismissed all the appeals including the fresh evidence of tinubu’s alleged certificate forgery, thereby upholding the lower court’s September 6, 2023 judgment. They ruled that the opposition appeals over claims of fraud, electoral law violations, and Tinubu’s ineligibility to run for president lacked merit.

Thereafter, reactions trailed the judgment of the Supreme Court affirming the electoral victory of President Bola Tinubu. The Labour Party (LP) alleged that the legislative and judicial arms of government have been hijacked by the ruling All Progressives Congress (APC) while the PDP dismissed the judgment as disappointing and concerning.

At a press briefing hours after the apex court dismissed the appeals, LP’s Chairman, Julius Abure said the party is disappointed but has decided to charge on and remain optimistic for what the future holds for the nation.

According to Abure, what happened from the day of the 2023 presidential election to now showed that the nation was sliding towards dictatorship.

“We are indeed very shocked and surprised that even the apex court will toe the line of an earlier judgement in spite of all the flaws associated with the judgement delivered by the Presidential Election Appeal Tribunal.

“Having conclusively exercised our fundamental rights as gifted to us by the laws of the land, we have no other choice but to move on. We may be disappointed and dismayed by the outcome of the exercise but we have chosen to trudge on and to remain optimistic of what the future holds for the nation.

“We weep for our institutions that cannot rise to the occasion and courageously defend democracy and the voices of our people.

“However, there are great lessons to be learnt. What transpired in Nigeria since the February 25 presidential election is a clear testament that our institutions are not working and that we may be sliding towards dictatorship. It is very clear that the executive has hijacked both the judiciary and the legislature. This is so unfortunate for our democracy and it is even more for the people of Nigeria.

“All what our forbearers taught us has been destroyed within a short space of time because of the unbridled ambition of a few. The founding fathers fought with their lives to achieve independence for the country.

“People lost their lives for the struggle to keep our democracy and all these years people have been struggling to achieve electoral and constitutional reforms. Regrettably, all of these efforts and struggles have been destroyed today,” Abure said.

On its part, the PDP expressed disappointment over the Supreme Court judgment, saying that the apex court has failed Nigerians.

The party expressed its reservations over the judgment through a press statement signed by its National Publicity Secretary, Hon. Debo Ologunagba, and made available to The Boss.

The party holds that the majority of Nigerians are “alarmed, disappointed and gravely concerned with the reasoning of the Supreme Court which the PDP believes is against the express provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2022, the Guideline and Regulation issued by INEC under which the election was conducted”.

The party further “asserts that it is indeed a sad commentary for our democracy that the Supreme Court failed to uphold the provisions of the law. Instead, it trashed the expectation of majority of Nigerians who looked up to it as a Temple of Impartiality to deliver substantial justice in the matter having regards to the laws and facts of the case.

“Nigerians earnestly expected the Supreme Court to uphold and defend the clear provisions of the 1999 Constitution in terms of qualification and minimum requirement for a winner to be declared in a Presidential election in Nigeria especially with regards to the required statutory 25% of votes in the FCT as well as issues of violation of electoral Rules and Guidelines, brazen manipulations and alterations of election results by the APC.

“Nigerians are still at a loss as to how the Supreme Court condoned the serious issues of forgery, falsehood and perjury on the altar of technicalities.

“The general gloom, melancholy and sense of despondency across the country upon the delivery of the judgment is an ominous sign of eerie situation which portend grave consequences because of the disappointment embedded in the judgment.

“This judgment by the Supreme Court has evidently shaken the confidence of Nigerians in the judiciary, especially the Supreme Court as the last hope of the common man.

“The PDP remains undeterred and charges Nigerians not to be discouraged or allow the judgment to detract from their collective quest for the entrenchment of a credible electoral system that can guarantee a government that truly derive its legitimacy from the people.”

More legal practitioners have also lent their voices to what many Nigerians have labeled a travesty of justice at the Supreme Court, using the judgment that affirmed Tinubu as Duly Elected as case study.

One of these legal icons is the just retired justice of the Supreme Court, Hon. Justice Musa Dattijo Muhammad, who bowed out on Friday having attained the statutory retirement age of 70, with not less than 47 years in the judiciary, 10 of which was as a Supreme Court justice.

His retirement day speech opened up a can of stinking worms in legal practice, especially at the apex court. He also exposed the Chief Justice of Nigeria, Kayode Ariwoola and the Supreme Court as a whole as an institution of bias and ineptitude.

In his speech, the justice opened a new conversation on the enormous powers the office of the Chief Justice of Nigeria (CJN) wields, and how the present CJN has deliberately starved some regions, especially the South East of representation in the apex court among other revelations.

With no holds barred, His Lordship systematically dissected the politics of ethnicity in the apex court, saying that he is leaving the Supreme Court worse than he met it.

Dattijo, among many other accusations alleged as follows:

“As presently structured the CJN is Chairman of the NJC which oversees both the appointment and discipline of judges, he is equally Chair of the Federal Judicial Service Commission (FJSC) which recommends those selected for appointment to the NJC, the National Judicial Institute (NJI) and the Legal Practitioners Privileges Committee (LPPC) which appoints Senior Advocates of Nigeria. In my considered opinion the oversight functions of these bodies should not rest on an individual alone. A person with absolute power, it is said, corrupts easily and absolutely.

“As Chair of NJC, FJSC, NJI, and LPPC, appointments as council, board and committee members are at his pleasure. He neither confers with fellow justices nor seeks their counsel or input on any matter related to these bodies. He has both the final and the only say. The CJN has the power to appoint 80 percent of members of the council and 60 percent of members of FJSC. The same applies to NJC and LPPC. The power of being appointed a judge of any court rests squarely on him. Such enormous powers can be abused. Such enormous powers are effortlessly abused. This needs to change. Continued denial of the existence of this threatening anomaly weakens effective judicial oversight in the country.

“By the provision of Paragraph 20 of Part One of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended, the NJC shall comprise the following Members: the Chief Justice of Nigeria, who shall be the Chairman; the next most senior Justice of the Supreme Court who shall be the Deputy Chairman. Regrettably, the next most senior Justice of the Supreme Court like Deputy Governors of States, shorn of any official function except at the pleasure of the Governor, is neither consulted on anything nor does he have any official function. His job as No. 2 is purely as the CJN pleases. It is incumbent that the system provides for more inclusion and consultation among stakeholders.

“The conversation about the diminishing number of justices of Nigeria’s Supreme Court has become a refrain. As I bow out today, the number is further reduced to 10 against the Constitutional requirement of 21 justices. That this avoidable depletion has affected the court and will further affect the court and Nigerians is stating the obvious.

“We are in an election season where the Election Tribunals and appellate courts are inundated with all manner of petitions and appeals. The Supreme Court is the final court in the Presidential, Governorship, and National Assembly election appeals. Yet, there are only 10 justices left to determine these matters. Constitutionally, each of these appeals requires a panel of seven justices to sit on them. When a panel of seven justices is constituted to sit on a particular appeal, only three justices are left out. Even when regular appeals are being heard in the Supreme Court, a panel of five justices is required to sit.

“We must not forget that the Supreme Court, being the highest court in the land receives all manner of appeals from the court below. Presently, there is neither limit nor distinction to the manner of appeals that come to the apex court. Again, beside election matters which are seasonal, the Supreme Court’s docket is overflowing with civil and criminal appeals, some of which took many years to arrive. Most of these are still pending. Several have not even been assigned hearing dates. The court also exercises original jurisdiction.

“As the justices who hear these matters are grossly overstretched, unable to meet the demands of their onerous assignment, the appellants who came to us seeking justice are left in limbo; waiting endlessly for justice to be served. These as I said before, are avoidable.

“When I exit today, the North Central region that I represent will cease to have any representation until such a time new appointments are made. My Lord Hon. Justice Ejembi Eko who also represented the zone retired on the 23rd of May, 2022. It has been a year and five months now. There has not been any replacement. With the passing of My Lord, Hon. Justice C.C. Nweze on 30th July 2023 the South East no longer has any presence at the Supreme Court. My Lord, Hon. Justice Sylvester Nwali Ngwuta died on 7th March 2021. There has not been any appointment in his stead for the South East.

“To ensure justice and transparency in the event of presidential appeals from the lower court, all geo-political zones are required to participate in the hearing. It is therefore dangerous for democracy and equity for two entire regions to be left out in the decisions that will affect the generality of Nigerians. This does not demonstrate federal character as required by our laws.

“Although it can be posited that no one expected the sudden passing of Justice Nweze, JSC, yet, it has been two years and seven months since the previous Justice from the South East died and no appointment was made. Ditto for the replacement of Justice Eko of North Central who exited nearly two years ago. Hon. Justice Sidi Bage, JSC, how His Royal Highness the Emir of Lafia, from the North Central, had earlier voluntarily retired. He is yet to be replaced.

“Also, it was clear ab-initio that I would be leaving the court this day on attaining the statutory age of 70. It is then not in doubt that there has been sufficient time for suitable replacements to have been appointed. This did not occur.

“When on the 6th of November 2020 the Supreme Court for the first time in its history got a full complement of 21 justices with the swearing-in of eight justices, little did anyone know that we were only a few steps to unimaginable retrogression. As it stands, only four geo-political regions —The South-West, South-South, North-West, and North-East are represented in the Supreme Court. While the South-South and the North-East have two serving justices, the North-West and the South-West are fully represented with three each. Appropriate steps could have been taken since to fill outstanding vacancies in the apex court.

“Why have these steps not been timeously taken? It is evident that the decision not to fill the vacancies in the court is deliberate. It is all about the absolute powers vested in the office of the Chief Justice of Nigeria and the responsible exercise of same.”

SEE THE FULL TEXT BELOW:

SPEECH-BY-HON.-JUSTICE-M.-DATTIJO

The reverred justice further stated:

“At the Court of Appeal, it is also asserted, presiding Justices are now being appointed out of turn. And there is the further issue of the unpredictable nature of recent decisions of the courts as well.

“A number of respected senior members of the bar inter alia, citing the Ahmed Lawan, the former President of the Senate and the Imo Governorship appeals, claim that decisions of even the apex court have become unpredictable. It is difficult to understand how and where, by these decisions, the judicial pendulum swings. It was not so before, they contend.

“In some quarters the view is strongly held that filth and intrigues characterize the institution these days! Judges are said to be comfortable in companies they never would have kept in the past. It is being insinuated that some judicial officers even campaign for the politicians. It cannot be more damnifying!”

In his reaction, Mike Ozekhome, a Senior Advocate of Nigeria and lawyer to one of the petitioners, Atiku Abubakar raised concerns about the lopsided composition of justices of the Supreme Court.

He specifically cited the recent presidential election appeal involving Atiku Abubakar and Peter Obi against President Bola Ahmed Tinubu.

Ozekhome questioned the ability of the Supreme Court to perform its duties effectively with such limited numbers and called for a deeper analysis of the court’s verdict on the case, as it carries significant policy implications.

He also criticized the disregard for the technological advancements in the 2022 Electoral Act, which he believes have been undermined by the court’s decision.

SOME CONTROVERSIAL JUDGMENTS OF THE SUPREME COURT 

LAWAN VS MACHINA

In the build up to the 2023 elections, Bashir Machina and the then Senate President,  Ahmed Lawan, had shown for the Yobe North senatorial seat ticket of the APC, but Lawan had gone to contest for the presidential ticket of the party, leaving Machina to the senatorial ticket.

Machina won unopposed during the senatorial primary organised by the party in May 2022.

But the senate president was said to have participated in another primary organised by the APC after he contested the presidential ticket unsuccessfully in June.

Machina was reportedly asked to step down for Lawan but he insisted that he is the rightful candidate.

Amid the controversy, the APC submitted the senate president’s name to the Independent National Electoral Commission (INEC) as the candidate for Yobe north.

The electoral commission subsequently refused to list any candidate for the district.

Aggrieved, Machina instituted a suit asking the court to declare him as the authentic senatorial candidate. His petition was upheld at the Appeal Court, but dismissed by the Supreme Court.

In a majority judgment delivered, the apex court allowed the appeal filed by the APC against Bashir Machina’s candidature.

Delivering the judgment, three out of a five-member panel agreed with the position of the APC that the suit at the trial court ought not to have commenced via an originating summons since it contained allegations of fraud.

“The bedrock of the suit shows that there were allegations of fraudulent practices against the appellants,” Centus Nweze, who led the five-man team, said.

UZODINMA AND IMO ELECTION

The Supreme Court in January 2020, nullified the election of Emeka Ihedioha of the PDP as the governor of Imo State.

The apex court declared Hope Uzodinma of the All Progressives Congress (APC) as the winner of the March 9 governorship election in the state. Uzodinma came fourth in the election.

In the unanimous judgment of the seven-member panel, read by Justice Kudirat Kekere-Ekun, the apex court agreed that results in 388 polling units were unlawfully excluded during the collation of the final governorship election result in Imo State.

Justice Kekere-Ekun said with the results from the 388 polling units added, Mr Uzodinma polled a majority of the lawful votes and ought to have been declared the winner of the election by the Independent National Electoral Commission, INEC.

The judge did not provide the details of the new votes scored by each of the candidates after the addition of the results from the 388 polling units.

Consequently, she voided and set aside the declaration of Mr lhedioha as the winner of the 2019 governorship election in the South-East state.

VALIDATION OF AKPABIO’S CANDIDACY

The apex court, in a unanimous decision by a five-member panel of Justices, upheld an appeal Senator Godswill Akpabio filed to challenge the Court of Appeal judgement that nullified his candidacy.

In the lead judgement that was read by Justice Ibrahim Saulawa, the apex court, held that the appellate court lacked the jurisdiction to meddle in the issue of nomination of candidate for an election, which it said was within the purview of an internal affair of a political party.

The apex court panel resolved 10 issues Akpabio raised before it in his favour and accordingly vacated the November 14, 2022 judgement of the Court of Appeal in Abuja, which directed the Independent National Electoral Commission, INEC, to recognize Mr. Udom Ekpoudom as the authentic candidate of the APC for the senatorial contest.

It would be recalled that Akpabio was contesting the presidential ticket of his party when Ekpoudom was recognised the party flag bearer.

While it appears that the Nigerian Supreme Court is always hesitant in upturning clear classes of judiciary misinterpretation as has been noticed in recent times, especially when it involves high profile political figures, instances abound where the US Supreme Court acted otherwise.

Below is a list 8 major instances where the US Supreme Court took the bull by the horns, according to www.history.com

  1. Hammer v. Dagenhart (1918)
  2. Minersville School District v. Gobitis (1940)
  3. Plessy v. Ferguson (1896)
  4. Betts v. Brady (1942)
  5. Bowers v. Hardwick (1986)
  6. Austin v. Michigan Chamber of Commerce (1990)
  7. Baker v. Nelson (1972)
  8. Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992)

Stakeholders and observers await to behold what becomes of the Nigeria’s apex court. Can it still stand as the last hope of the common. Time will tell!

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