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Published On: Thu, Jan 30th, 2020

Imo and the apex court’s power of review

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THURSDAY Column with Mohammed Adamu

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Everyone who had followed events before, during and after former Ekiti State’s Governor Ayo Fayose’s 2014 second term bid knew that an incumbent Jonathan’s PDP Government had openly deployed its might and its money to rig out Fayose’s incumbent opponent, Kayode Fayemi. We all saw how on the eve of, and on election day, candidate-Fayose himself, clad in bullet-proof combat kit and chaperoned by a host of masked Army, Police and DSS operatives, was his own electoral war commander, deciding who was to be arrested, who to be detained and who to be allowed to go about their civic duty. At the end, neither Osun’s controversial post Aregbe election, nor Kano’s last Ganduje’s, nor yet as recently as Kogi’s Bello’s, with all the contrived notoriety that dogged the heels of their conduct, were half as barefacedly brazen as PDP’s Ekiti’s, to re-elect Fayose. And although the Judiciary, from the Election Petition Tribunal up to the Supreme Court, had proceeded to validate that travesty of an electoral process, yet the opposition then, neither poured out on the streets to protest, nor called the judiciary and judges unprintable names.
And in fact, soon, after the Supreme Court’s verdict validating that charade, two separate damning confessions, one by a politician (a former Ekiti State’s PDP Secretary, Dr. Tope Aluko) and the other, by an army captain (Sagir Koli, who had accompanied his Commanding Officer Brig. Gen. Aliyu Momoh on election duty to Ekiti), would reveal how that very election was massively rigged in a virtual gangster, coup-like fashion, with the young officer, Koli particularly revealing a 37-minute audio recording of the secret meeting in Ado Ekiti where the rigging arrangements were planned. Koli would also expose a long list of names of some of the regime’s top political and security officials who attended the said meeting at a certain Spotless Hotel in Ado-Ekiti, including he also exposed a rank-promotion reward, promised his Commanding Officer Brig. Gen. Aliyu Momoh for the role he was to play in the Ekiti rigging expedition. When the shit of that State-organized, State-sponsored and State-executed electoral fraud hit the fan, many Nigerians thought that the revelations were not only fresh enough evidence against Fayose’s election, no evidence could be more lurid to warrant a judicial review by the Supreme Court. In fact considering that election’s unique signature of notoriety, many believed that the Supreme Court (even before Aluko’s and Koli’s revelations) should’ve erred on the side of mercy’ by giving it to Fayemi, rather than erring on the punitive side by rewarding obvious electoral fraudsters.
If memory serves right, every PDP supporter insisted that Ekiti did not merit a review by the Supreme Court. In fact many –mostly partisan- legal practitioners, as usual were are at daggers-drawn over whether or not in the first place, the Supreme Court could revisit any matter at all which it had already concluded; and if it could, whether or not Alluko;s and Koli’s fresh evidence were compellable enough to merit that review. One of the proponents of no-review who insisted that a revisit of the Ekiti case by the Supreme Court was impossible, was Emeka Ngige, SAN who cited Ukachukwu v. Ugochukwu Uba in which the Supreme Court had ruled in favor of the latter but afterwards fresh evidence emerged indicating that the judges who presided over the matter had compromised themselves and were, in fact, even dismissed on that charge by the National Judicial Council, NJC. Ngige argued that even as a review of that case seemed obviously a fait accompli, the apex court rebuffed the idea on the grounds that the evidence of compromise by the dismissed judges was merely of historical and not legal significance.
Such was PDP’s fierce anti-judicial-review posture then that some lawyers in fact vehemently insisted that the Supreme Court had no such powers of judicial review –their reason being that this power cannot expressly be located either in the Constitution or in any act of parliament. Yet, the opposition then, rather than carry placards on the streets or resort to hauling obscenities at the judges of the Supreme Court, decided instead to advance jurisprudential reasons in support of the existence of that power –a path that (especially with PDP and its myopic members) was, as Shakespeare would say, like ‘holding opinion with Pythagoras’. Many of us argued that if the Supreme Court, at any time becomes seized of new evidence which point to the fact that it may have erroneously travestied justice in a previous judgment, (or that fresh evidence indicating that its judgment may have been vitiated especially by fraud), it should, with profound sense of ‘equity’ and without rigid adherence to letters of the law, proceed to revisit such a case; and where the fresh evidence is compelling enough, review its judgment. in the interest of justice. We said that it should be both legally and ‘morally’ wrong to say that for the reason merely that a judicial self-review by the Apex Court would dent both its presumed ‘infallibility’ and its attribute of being the ‘final’ court, therefore even erroneously-settled matters should be allowed to abide -especially where manifest injustice to innocent persons are likely to be done. We said that it was absolutely necessary that the Apex Court did not miss any such opportunity to demonstrate this unique ‘unwritten power’ of judicial self-review even if merely to give vent to that maxim which assures that ‘Equity (unlike ‘law’) is not a closed shop’.
In fact I remember Itse Sagay’s argument then, that although the judgment of the Supreme Court was final on any matter, there was a compelling necessity for judicial self-review inherent even in the legal maxim which posits that ‘fraud vitiates all’. Meaning that where the Supreme Court was misled by fraudulent evidence to give a particular judgment which is tantamount to a miscarriage of justice, that judgment stands ab initio vitiated by the very fraud by which it was obtained. Allied to this also is the legal maxim which says that no person will be allowed to profit from his own wrong doing –meaning that the fresh evidence presented by PDP’s Dr. Aluko and Capt. Koli was merely calling the attention of the Supreme Court to the fact that Fayose was a beneficiary of his own wrong doing, and that therefore he should be removed. In spite of all these though, the Supreme Court did not review its verdict on Ekiti. And the heavens did not fall. The opposition took it in its stride as jthe way, sometimes, the judicial cookie crumbles! Just like it had to take Zamfara’s too, where over 500,000 people voted for APC but the Supreme Court –on technical grounds- judicially installed a PDP candidate who scored only about 200,000, and also refused to grant a review. And just like the APC also took it as one of those judicial things when the Supreme Court, against the grain of the Administration of Criminal Justice Act, ACJA, granted Saraki’s prayer for a stay of the proceedings of the Code of Conduct Tribunal, an obnoxious tradition which the new ACJA had just outlawed. The Apex Court, by implication, had counter-stated what the law should be without any written law empowering it to so do. No one took to the streets; no one called anyone names, even though it was obvious that the Supreme Court had overreached its constitutional power by granting a relief contrary to the express provisions of a subsisting Act of parliament, in favor of Saraki at a time he constituted the greatest threat to the APC government. Nor has the Supreme Court revisited this brazen abuse of its power, yet. But we take it as one of those judicial things.
And why? Because we know that, that species of judicial review, by the Supreme Court, is a privilege and not a right that it must grant even when it does not deem it necessary by itself, to reverse itself. And because we know too, that the ‘finality’ ascribed to the decisions of the Supreme Court is not necessarily from the fact that no ‘legal reasoning’ can possibly take place beyond the Rubicon of its ruling. Rather we know that, that ‘finality’ is merely the elastic point of the judges’ forbearance on any matter brought before them. Conversely the ‘infallibility’ attributed to the Supreme Court is not from any inherent angelic in-ability of its judges to make mistakes. Rather it is from the fact that being the last judicial bus stop, any judgment of this Court whether ‘sound’ by law or even if ‘sullied’ by illogic, has to represent the ‘final’ position of the law on any given subject. We took it because we know that that as the king in Medieval times is said to ‘do no wrong’ even though the king does, in fact, do wrong, the Supreme Court is always ‘right’, judiCIAlly even when its decisions appear to be ‘wrong’, judiCIOUSly –and which explains the saying that “the Supreme Court is not ‘final’ because it is infallible, but that it is ‘infallible’ only because it is ‘final’.
The Sureme Court alone, of all other courts, may rule with the overarching objective of either achieving justice, or at the very least, of ending litigation –which itself is another species of justice, to the extent that it puts the system out of the misery of unending litigation, –because there has to be an end to litigation.

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