Overview Of The ‘Tsunamic’ Effects Of The Borno Case And High Hopes That The Supreme Court Will Do The Right Thing
by Friends of Steve
The Nigerian Judiciary has travelled a long way. Even during the military rule when ouster clauses were employed in decrees to oust jurisdiction of courts, the Nigerian Judiciary courageously found ways of circumventing those provisions by upholding the rights of citizens’ access to justice.
Under the current Nigerian Constitution, Section 6 vests judicial powers in the courts. S. 6(16) specifically vests all inherent matters between persons, or between government or authority, all actions and proceedings for the determination of any question as to the civil rights and obligations of that person ….
These no doubt are provisions that should be expected in any reasonable and democratic setting, and assures citizens that their access to justice is firmly entrenched.
Delay of Election Petitions
Adjudication of election petitions in Nigeria has equally witnessed progress over the years. As recently as 2003, the overturn of an election in which there was a declared winner unheard of. Similarly, elections were highly suspect due to brazenly overt irregularities. After the 2003 and 2007 general elections, with no improvements in the electoral process, the Judiciary decided to rekindle the hope of Nigerians in a nascent democracy by reversing several INEC returns thereby sending a clear message that the Judiciary would not be part of the rot. Even presidential elections were threatened by this judicial climate.
With the new refreshing attitude of the Courts, attention moved to the time for determination of election petitions. Before the current legal regime was ushered in by the 6th National Assembly through the amendment of the 1999 Constitution and the 2010 Electoral Act as amended, it was fashionable for some election petitions to outlast the tenure of the offices litigated against. The 6th National Assembly, driven by a patriotic zeal to have petitions determined expeditiously, amended the constitution to limit the period of determining election petitions before election tribunals to 180 days; and 60 days for appeals. See SS 285(6), 285(7) and 246(i)(c)(ii) of the 1999 Constitution.
Interpretation of 180 days
By the wordings of S. 285(6) of the 1999 Constitution, the computation of 180 days is from the date of filing of a petition before the election tribunal. Right of appeal from decisions of the Tribunal has been provided in S. 246(i)(b) while the right of appeal to the Supreme Court has been provided for in S. 233(i).
In the same vein, the amended constitution provides 60 days for determination of appeals whether in the court of Appeal or the Supreme Court see S. 285(7) of 1999 constitution as amended.
If taken literally, it may appear that once 180 days have elapsed from the date of filing a petition, whether or not it has been determined on merit, the lifespan of such a petition is spent.
Meanwhile, many petitions which either suffered a “technical knockout” or were wrongly determined were remitted back to the tribunals for retrial (most times after the initial 180 days had elapsed). In deciding whether S. 285(6) allows another 180 days where the previous cycle did not result in a valid judgment or where a retrial is ordered, most divisions of the Court of Appeal adopted the golden rule of interpretation. This rule says that where a literal interpretation of a statute would lead to absurdity or affect other provisions of the statute or constitution, the golden rule should be applied to give expression to the intention of the legislature. In this case, the intention of the legislature was only to expedite the trial of election petitions but not to deny litigants the right to be heard. This is why the spirit of the law has always guided the Supreme Court to do substantial justice.
The several divisions of the Court of Appeal ruled that:
- 180 days is only the life of judgment in a petition but not the life of a Tribunal
- Where a retrial is ordered, 180 days would recommence from the date of the order by an appellate court.
The Borno Case Twist
Just as it appeared settled that the golden rule of Interpretation of S.285(6) had come to stay, the Supreme Court dropped a bombshell. This was the consolidated judgment in appeal Nos. SC1/2012 SC2/2012 ANPP Vs Goni and Shetima Vs Goni delivered on 17th February, 2012 -hereinafter called the “Borno Case”.
In the Borno case, the Justice Onnoghen led panel simply declared that S.285(6) should be given a literal interpretation and any case that had not been completed within 180 days, was considered to have lapsed. The judgment went to the extent of declaring all orders of retrial invalid. This judgment had the “Tsunamic” effect of terminating all pending election petitions in Nigeria.
Unwittingly, this judgment not only had the effect of denying aggrieved candidates access to justice but also crippled the right of appeal provided for in the constitution and other legislations.
The Supreme Court has come to a crossroad, and the Borno case is an albatross that it must deal with to restore its image as the final court of justice in the land
The way out for the Supreme Court
The only way out for the Supreme Court, is to overrule its position in the Borno case where an opportunity presents itself. Thankfully, the Akwa Ibom and Benue governorship appeals, among others, are on their way to the Supreme Court for the performance of this historic salvage mission.
The following reasons, among others, are sufficient grounds for the court to overrule itself.
1. The Borno Case was a nullity
The combined effects of SS 234 and 233(2)(b)(c) of the 1999 Constitution provides for a Coram?? of seven (7) Justices whenever the Supreme Court sits on any appeal to interpret or apply the Constitution. However, only five (5) Justices decided the Borno Case even though it was for the interpretation of S. 285(6) of the 1999 Constitution as amended. The effect of this is that the five-man-panel-Court acted without jurisdiction.
Previously, the Supreme Court underscored the importance of proper constitution of a court when it (NIKI TOBI, JSC) held as follows in the case of SOKOTO STATE GOVERNMENT VS KAMDEX NIG. LTD (2007) ALL FWLR (pt 365) 469 AT 490:
“where the constitution provides for a minimum number of Justices to form a panel and sit in the Court of Appeal, anything short of that minimum will make the panel incompetent and will result in the nullity of the proceedings however ably conducted. A court is competent when inter alia, it is properly constituted as regards membership and qualification of the members of the bench and no member is disqualified for one reason or another. See Madukolu v Nkemdlim (1962) all NLR 587. See also Maiwa v Abdu (1986) 1 NWLR (pt 17) 437; Ajao v Alao (1986) 5 NWLR (pt45) 802; The Attorney-General of Anambra State v Attorney-General of the Federation (1993) 6 NWRL (pt302) 692.”
The Supreme Court has repeatedly held in a long line of decisions that a defect in the Constitution of the Court is fatal to its decision.
In the same case of Sokoto State Government vs Kamdex Nig. Ltd (Supra) Mahmed Mohammed JSC held at pp 485 – 486 thus
“Failure to comply with these fundamental requirements of the Constitution and the law as expounded in the various decisions of our courts, renders the judgment a nullity”
Similarly Ogbuagu JSC opined in the case of OSAKWE vs FCE (Technical) Asaba (2010 2-3 Sc (Pt 111) 158 at 176 thus
“It is now settled that the issue of jurisdiction is fundamental and crucial, it is in fact, a threshold matter. Where a court has no jurisdiction, any action taken will be a nullity however well conducted. The principles which define the competence of the court are stated in the case of Madukolu v Nkemdilim (1962) 1 ANLR (pt 4) 587; (1962) SCNLR 324.
Where a court on its own discovers that it has acted without jurisdiction, it has an inherent power to set aside its own decision in the matter. See the cases of Forfie v Selfah (1956) All E. Report 289 pp-c; and Western Steel Works Ltd & Anor v Iron and Steel Union of Nigeria (1986) 3 NWLR (pt 30) 617.”
2. The imperativeness of upholding the sanctity of S .36(1) of the 1999 Constitution as amended.
The Supreme Court needs to overrule itself because the effect of the Borno case is to shut out petitioners in the exercise of their Constitutional rights to fair hearing. All the terminated petitions were at various stages of completion. None had yet reached final judgment. Terminating the petitions midstream, left petitioners without a hearing and just determination as mandated in S.36(1) of the 1999 Constitution (as amended) which states thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is well settled that where a plea of breach of fair hearing has been successfully raised, established and upheld, the court lacks the necessary competence or jurisdiction to delve further into any issues of merit in the case: Araka v Ejeagwu (2001) FWLR (pt 36) 830, (2000) 15 NWLR (pt 692) 684 at 718 (Ayoola JSC); Okereke v. Nwankwo (2003) FWLR (pt 158) 1246, (2003) 9 NWLR (pt 826) 592 SC; Ewo v Ani (2004) All FWLR (pt 200) 1484, (2004) 3 NWLR (pt. 861) 610 SC. Once an appellate court comes to the conclusion that a party entitled to be heard before a decision was reached was not given the opportunity of hearing … the judgment thus entered is liable to be set aside: Bamayi v The State (2004) FWLR (pt 46) 956 at 974 (D-E) (Uwaifo JSC)
In the case of Mohammed v Kano N. A. (1968) 1 All NLR 424, it was held that fair hearing must involve a fair trial, and a fair trial consists of the whole hearing. In Obih v Mbakwe (1985) 6 NCLR 783 at 795 it was stressed that the primary duty of a court is to hear and determine issues before it on the merits. Justice, which is the goal of every trial, is the virtue by which the court gives to every man what is his due, opposed to injury or wrong. It was emphasized that the right of fair hearing must carry with it the right of the parties and their witnesses to be heard and the issues in controversy between them to be resolved on their merit. Any statute, which shuts out such a right from being pursued in a court of law when there is a violation or threatened violation of it is unconstitutional. This is why in Ibrahim v Osim (1988) 4 NWLR (pt. 82) 257, (1988) 6 SCNJ 203, the Supreme Court insisted that any party whose right is to be determined must be given a reasonable opportunity of being heard. Thus a plaintiff seeking justice before our courts will not be barred from the judgment seat by denying him a right to be heard except in the clearest cases.
Recalling the fundamental nature of fair hearing, the Supreme Court observed that even if S. 36(1) of the 1999 Constitution (as amended) had not made entitlement to fair hearing, a fundamental right, it is reasonably clear on the authorities that where a statutory tribunal (such as the trial tribunal herein) has been set up to decide final questions affecting parties’ rights and duties, if the statute is silent on the question, the courts will imply into the statutory provision, a rule that the principles of natural justice should be applied: LPDC v Fawehinmi (Supra). See also Wiseman v Borneman (1971) A.C 297 at 310 – 311, per Lord Guest.
Finally, it is submitted that Section 285(6) or non of the subsections of S.285 of the Constitution (as amended) can stand or withstand the force, weight and effect of S. 36(1) of the 1999 Constitution (as amended). Kariba-Whyte JSC made this abundantly clear in LPDC v Fawehinmi (Supra) where he made this authoritative statement:
“Although it is the common law concept that is in consideration, the scope and extent of the concept should be determined within the context of the section of the constitution in which it has been incorporated in the light of the provisions of the constitution as a whole. This section is an entrenched provision which has the privilege of nullifying any other constitutional provisions or any other legislation inconsistent with it. It has the distinction of being subject to amendment only in compliance with the provisions of section 10(3) of the Constitution” (Now Section 9(3) of the 1999 Constitution (as amended)). It therefore stands solidly behind a citizen who is legitimately apprehensive that in determination of civil rights and obligations there was a likelihood that his rights to natural justice might be denied him.
It follows that the trial Tribunal could certainly not be right to hoist S. 285(6) over the superior and entrenched provisions of S. 36(1) of the 1999 Constitution (as amended) by proceedings to strike out petitions without hearing them on their merit.
It is therefore submitted that the all embracing magnitude of the provisions of S. 36(1) of the 1999 Constitution (as amended) are still alive, active and potent and hover head and shoulders over the less potent S.285(6) of the same Constitution. As observed by Uwais CJN in Savannah Bank Ltd v Ajilo (2007) FWLR (pt. 75) 513 at 533-544:
“Now, for this court to perform its functions under the constitution effectively and satisfactorily, it must be purposeful in the construction of the provisions of the constitution. Where the construction bestows a right on its citizens and does not forfeitin the circumstances, we have a duty and indeed obligation to ensure that the tenure right is not lost or denied the citizen by construction that is narrow and not purposive. To this end the established practice of this court is where the constitutional right in particular, and indeed any right in general, of a citizen is threatened or violated, it is for the court to be creative in its decision in order to ensure that it preserves and protects the right by providing remedy for the citizen.”
It is further submitted that in specific cases (such as Akwa Ibom & Benue) where the Supreme Court and several orders by the Court of Appeal specifically ordered that the cases be heard and determined on the merit, such decisions are consistent with the pith and substance of S. 36(1) of the 1999 Constitution (as amended). The order in no way contravenes S. 285(6) of the 1999 Constitution (as amended) and ought to be obeyed to the letter by the trial tribunals. Besides, the Supreme Court decisions have not been set aside so they remain valid and subsistent.
3. The need for the Supreme Court to uphold the Constitutional right of appeal.
The judgment of the Hon. Justice Onnoghen led five-man panel of the Supreme Court amounted to rendering useless the right of appeal provided for in the Constitution and other statutes.
It is necessary to observe that Section 233(2)(e)(iv) of the 1999 Constitution (as amended) creates right of appeal from decisions of the Court of Appeal to the Supreme Court on any given question whether any person has been validly elected to the office of Governor or Deputy Governor under this Constitution. By dint of S. 246(1)(c)(ii) an appeal lies from decision of the Governorship Election Tribunals on any question whether any person has been validly elected to the office of a Governor or Deputy Governor. The respective periods for giving judgment in a petition is 180 days from the date of filing thereof while the period of 60 days has been allotted for the determination of appeals filed from the date of judgment of the subordinate Courts. This is the summary of S. 285(6) and 285(7) of the 1999 Constitution (as amended).
It is most respectfully submitted that nowhere in the Constitution is there any provision wresting from appellants, their constitutional right of appeal. Similarly, there is no stipulation anywhere in the same constitution that the 60 days set aside for determining an appeal are subsumed under the 180 days given to tribunals to give judgment on the pending processes i.e. the election petitions. S. 6(6)(a) & (b) of the 1999 Constitution (as amended) ordains that the judicial powers shall extend, notwithstanding anything contrary in the Constitution to all inherent powers and sanctions of a court of law and to all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as the civil rights and obligations of that person.
Commenting on the constitutional right of appeal and the doctrine of fair hearing in S. 36(1) of the 1999 Constitution (as amended), the Court of Appeal had this to say in Sambo v Aliero (2010) All FWLR (pt. 541) 1569 at 1590 (C-F);
“Besides, the doctrine of fair hearing as encapsulated in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 has provided for the right of the appellants to approach the courts and, on their being heard over their grief and establishing their case, obtain appropriate reliefs against any person, government or authority. This right must not be aborted midstream by peremptorily terminating their case. Declining jurisdiction over the instant appeals on the basis of the reason provided by the 1st and 2nd respondents is to deny the petitioners their constitutional guaranteed right of having the legitimate complaints heard and determined one way or the other. Democratic governance stands to suffer from such a negative approach. No court properly so called offers itself for such negative purpose. The right of the litigant to ventilate his grief including his right of appeal against a judgment given against him has always been jealously guarded by the Courts. The Courts do not in such moments allow their jurisdictions to be subjected to manipulations by the defendant: Adesosun v Fashogbon (2008) 17 NWLR (pt. 1115) 149 at 190 and H.D.P. v INEC (2009) 8 NWLR (pt. 1143) 297 at pages 324 and 330. 1st and 2nd respondents’ objection accordingly fails. It is overruled.”
The Supreme Court of Nigeria has eloquently declared that a party’s constitutional right of appeal is vested, entrenched, protected and not futile. The apex court also utilized the occasion to recognize the maxim ubi jus ibi remedium. This was in the decision of the full panel of the Supreme Court in Aliu Bello v A.G Oyo State (1986) 12 SC 1 at 9 – 18 (Bello JSC), 43-44 (Aniagolu JSC) 69-70, 87 (Karibi-Whyte JSC), 97(Kawu JSC) 103-108, 111-112, 113-114, 120-122 (Oputa JSC), (1986) NSCC 1257 at 1267, 1270, 1276, 1289, 1290, 1293, 1295, 1297, 1298, 1299 and 1301.
On p.103 of the report, Oputa JSC had this to say (p.1295 of the 1986 NSCC):
“The 1979 Constitution itself gave Nasiru Bello by its section 220(1)(e) an unconditional and an undisputed right of appeal to the Federal Court of Appeal…. And a further right of appeal if necessary to the Supreme Court of Nigeria. Section 213(2)(d) refers. Surely the right of appeal; conferred on Nasiru Bello by these two sections (S. 220(1)(e) and S. 213(2)(d) will be empty and meaningless if he is to be executed before his appeal is heard. The constitution cannot confer a right which cannot be exercised. This constitutional right of appeal of Nasiru Bello imposed on the defendant now respondent a public and statutory duty to ensure that Nasiru Bello was not disturbed in the exercise or enjoyment of that right. Nasiru Bello was not only disturbed in the enjoyment of his constitutional right of appeal but also his right to life pending the outcome of his appeal was completely and totally destroyed by his premature execution. This premature execution offended against section 30(1) of the 1979 Constitution. It did more than than. It paralyzed and destroyed Nasiru Bello’s constitutional right of appeal and foisted on the Federal Court of Appeal a situation of complete helplessness. There is no, and there cannot be any argument about the unconstitutionality of Nasiru Bello’s premature execution.”
Furthermore, His Lordship poured out this powerful lament – 1986 NSCC at p. 1297:
“The premature killing of Nasiru Bello in the surrounding circumstances of this case was both unlawful and illegal. It was wrongful in the sense that it was injurious to the rights primarily of Bello to life and secondarily of his dependents who by his death lost their bread winner; it was needless in the sense that it was premature and unconstitutional; it was unjust in the sense that he (Nasiru Bello) was not allowed a just determination of his appeal by the Federal Court of Appeal; it was reckless in the sense that it was done in complete disregard of all constitutional rights of the deceased, Nasiru Bello.”
In addition, pt.1298-12999 of (1986) NSCC, Oputa JSC continued:
“In this case on appeal, the fact that Nasiru Bello appealed against his conviction and sentence imposed a statutory duty on the defendant (to quote the memorable words of Coker, JSC in Vaswani Trading Company v. Savalaka (1972) 12 SC 77 at (pt.28) “not to destroy the subject matter of his appeal or foist on the Federal Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyze in one way or the other the exercise by the litigant (here Nasiru Bello) of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appeal succeeds in the Court of Appeal, there could be no return to status quo. The premature execution of Bellow did all these.”
His Lordship then concluded on his exposition of the maxim ubi jus ibi remedium. See 1986 NSCC at 1301.
“Finally, it is not correct that the mere fact that the appellants relied on the maxim “ubi just ibi remedium” shows that they never adverted their minds to the Torts Law and never based their claim on it. Holt, C.J., in the now famous case of Ashby v White (1703) 2 Ld. Raym. 938 postulated the principle that “if the plaintiff has a right he must of necessity have the means to vindicate it, and a remedy, if he is injured in the enjoyment or exercise of it; and, indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal.” The maxim ubi jus ibi remedium is simply a Latin rendition of the above principle. The maxim is so fundamental to the administration of justice that where there is not remedy provided either by the common law or by statute the courts have been urged to create one. The court cannot therefore be deterred by the novelty of an action. They usually look at the facts. If from those facts a court is satisfied:-
- that the defendant was under a duty to the plaintiff;
- that there was breach of the duty;
- that the defendant suffered legal injury;
- that injury was not too remote.
If all these factual situations exist, the court will surely provide a remedy. That was why Denning M. R in Packer v Packer (1954) p. 15 at 22 was able to assert:-
“What is the argument on the other side? Only this, that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.”
“The law is an equal dispenser of justice, and leaves non without a remedy for his right. It is thus a basic and elementary principle of the common law that wherever there is a wrong, legal wrong or injury that is, there ought to be remedy to redress that wrong. Ubi jus ibi remedium is thus essentially a common law principle.”
A synthesis of the position of the law laid down in the foregoing cases illustrate unequivocally that the constitutional right of appeal conferred by the Constitution is never futile or a case of fancy or poetic embrace. It has its bite and force.
Therefore, it is submitted that when the appellants in the pursuit and enjoyment of their constitutional right of appeal convinced the Supreme Court to allow their appeal, set aside the decision of the Court of Appeal and ordered the petition to be heard on the merits, this was within the enjoyment of their constitutional right of appeal which cannot be futile.
4. The need for the Supreme Court to be consistent (In Benue and Akwa Ibom Governorship cases)
On November 14, 2011, the Supreme Court specifically ordered that the Benue and Akwa Ibom Governorship election petitions be remitted for retrial on their merit. At the time of making this order the chronological number of days from filing of the petition was already beyond 180 days. The Supreme Court was aware of this fact because in Prof. Steve Ugba’s appeal in the Benue State Governorship Election Tribunal, the Respondents filed a motion to have the appeal dismissed for expiration of 180 days but the Supreme Court completely ignored their application which they consequently withdrew.
Curiously, here has been no order of the Supreme Court specifically overruling, vacating or setting aside those orders of November 14th 2011.
If anything, The Supreme Court has consistently maintained that a judgment/decision of a court remains subsisting and binding until set aside by the court itself or on appeal. Rossek v ACB (1993) 10 SCNJ 20 at 39-43 emphasised this point. On p.41 of the report, Ogundare JSC stated unequivocally –
“There is presumption of correctness in favour of a court’s judgment. And until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed.”
See also Aladegbemi v Fasanmade (1988) 3 NWLR (pt 81) 129.
It is further submitted that the order of the Supreme Court on 14/11/2011 to the effect that the petition be heard on the merit is consistent with the provisions SS. 36(1), 233(6) and 236 of the 1999 Constitution (as amended) as well as S. 6(6)(a) & (b) of the said constitution and Order 8 Rules 12(2) and (5) Supreme Court Rules 1999 (as amended). See also S.22 of the Supreme Court Act and the cases of Ladoja v INEC (2007) All FWLR (pt. 377) 934, Faleye v Otapo(1995) 3 NWLR (pt. 381) 1; Inakoju v FWLR (pt. 373) 81, Amaechi v INEC (2007) 18 NWLR (pt. 1065) 42 and Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (pt.144) 283 at 317 SC. See also Order 8, Rule 12(1) & 13 Supreme Court Rules: See Okomalu v Akinbode (2006) 9 NWLR (pt 985) 338 SC, (2006) 4 SC (pt. I)19.
It is our humble submission that nothing in S. 285(6) of the 1999 Constitution (as amended) has abrogated or whittled down any of the judicial powers which were validly exercised by the Supreme Court on November 14th 2011, when it duly ordered these petitions to be heard on their merit.
Finally, it is only the Supreme Court that is vested with the power to depart from its earlier decisions or to review them in appropriate circumstances or situations. See Order 6, Rule 5(4), Supreme Court Rules and Veepee Industries Ltd v Cocoa Industries Ltd (2008) 13 NWLR (pt 1105) 486 at 513; Johnson v Lawanson (1971) 1 All NLR 56 at 68; Associated Discount Houses v Amalgamated Trustees (No. 2) (2007) 7 SC 168 at 214-217 (Ogbuagu JSC), (2007) All FWLR (pt. 392) a781.