By Segun Dipe
The suit instituted by Kayode Ojo against the emergence of Biodun Abayomi Oyebanji (BAO) in the January 27, 2022 shadow poll of the All Progressives Congress, APC, has come and gone. Even when it did not cast any iota of doubt on the landslide victory recorded by BAO both at the primary and the general stages, it still left something for posterity to chew. Now, the story of the ruling party and democracy in the state in general will not be complete without mentioning the KO matter.
The Nigerian legal system inherited the supremacy of the apex court from the English law. The Supreme Court is the highest court in the land, meaning, it has authority over all other courts in the land. As there is no court in the land with more authority than the Supreme Court, a Supreme Court ruling cannot be overturned by any other court.
In the words of George William Norris, a notable American politician who lived between July 11, 1861 and September 2, 1944, people can change Congress but only God can change the Supreme Court. The import of this is that any matter adjudicated upon by the Supreme Court comes with a note of finality.
Prior to the December 5, 2022 final dismissal of the Kayode Ojo suit by a 7-man panel of the Supreme Court, it had suffered technical hitches both at the trial and appellate courts. Also, a 5-man panel of the same Supreme Court had on November 24, 2022 told the appellant’s counsel that the case was technically frail and, at best, would end up as mere academic exercise.
However, at the insistence of Kayode Ojo’s lead counsel, Dr. Alex Aigbe Izinyon, that the merit of the case was not determined by the trial court, thus would like the Supreme Court to overrule itself, first by vacating the 180 days statutory deadline and second by assuming the jurisdiction of the Federal High Court and rule on the substantive matter, the 5-man panel advised the appellant to write directly to the Chief Justice of Nigeria, Olukayode Ariwoola, who, in their words, was the only person that could invoke the Supreme Court rule in constituting the right panel to look into the merit of their request.
The Federal High Court sitting in Ado-Ekiti had struck out the suit instituted by Kayode Ojo for what it cited as technical deficiency. The Presiding Judge, Justice Babs Kuewumi averred that the maker of the signature on the writ of summons and the plaintiff’s statement of claims could not be ascertained, the irregularities, he said, made the process defective. The Judge thus did not bother himself with the substance of the suit and held that since the preliminary objection of the defendant had been upheld, any process on the suit would amount to a mere academic exercise. “You cannot build something on nothing,” Kuewumi said.
Dissatisfied, Kayode Ojo and his legal team proceeded to the Court of Appeal, where the suit suffered yet the same fate. Apart from upholding the decision of the trial court, the appellate court also knocked the suit for being filed out of time. This is what Izinyon and the legal team took to the Supreme Court, with the belief that the Apex Court would assume jurisdiction of the trial court and rule on the substance of the case. Alas, this was not meant to be, as the 7-man panel constituted to hear the matter equally dismissed it on the ground of lacking in merit and merely an academic exercise.
From the chronicles of the Supreme Court of Nigeria, it is on record that decisions of the apex court have always been held as final and irreversible, and only on very rare occasions, which would bother mainly on clerical errors, would it overrule itself. Broadly speaking, the decisions of the Supreme Court are not subject to further review by any other court. The apex court functions primarily as an appellate court, hearing appeals from decisions of lower/ trial courts, or from intermediate-level appellate courts.
Section 230 to 236 of the 1999 Constitution of Federal Republic of Nigeria mentions all about the supremacy of the Supreme Court as attested to by Norris. It is the highest court within the hierarchy of courts in the country, as in most legal jurisdictions. Section 235 of the 1999 CFRN specifically gives a stamp of finality to any decision of the Supreme Court.
But what if the Supreme Court errs or is outrightly misled? Will it be right to flexibly reverse itself? Constitutionally, No. But discretionary, Yes. Justice Chukwudifu Akunne Oputa of blessed memory, while delivering a leading judgment (to which Obaseki, Nnamani, Karibi-Whyte and Agbaje, JJSC all agreed) on Friday 19th day of May, 1989, noted that the discretion by the Supreme Court to overrule itself or not was entirely that of the court and not a matter of constitution. In the words of the esteemed Justice, the court is final not because it is infallible; rather it is infallible because it is final. The Justice further said that it was far better to admit an error than to persevere in error.
The above serves the argument for both for and against the Supreme Court reversing/overruling itself. Interestingly, two cases, which gave support to the postulations (for and against) in recent times had the input of the Chief Justice of Nigeria, Justice Olukayode Ariwoola himself. The first was that of Emeka Ihedioha whose election was unanimously annulled and Hope Uzodimma who came fourth was declared winner in his stead. Ihedioha’s counsel, Chief Kanu Agabi, SAN, approached the Supreme Court, believing it could overrule itself and declare the judgement as a miscarriage of justice. The CJN led five other members of the panel, including Sylvester Ngwuta, Kudirat Kekere-Ekun, Amina Augie and Uwani Abba-Aji, to dismiss the application on the ground that the court’s decision was final and it could not reverse itself.
While reading the judgement of the majority, Justice Ariwoola held thus: “Generally, by the provision of the Rules of this court, it shall not review any judgement once delivered by it, save to correct any clerical mistake or some errors arising from any accidental slip of omission, or to vary the judgement or order so as to give effect to its meaning or intention.”
The same request, but with a different judgement was made by GTBank early this year against a N2.4 billion judgment given in favour of Innoson Motors Nigeria Limited. Unanimously, the same Supreme Court reversed the judgement given in favour of Innoson Motors Nigeria Limited by the Court of Appeal in Ibadan, Oyo State. The 5-man panel, again led by the same CJN Ariwoola held this time that the Supreme Court could actually reverse itself and that it erred when, in a ruling on February 27, 2019, it dismissed the appeal filed by the bank.
There is no doubt that the above must have informed the “try-your-luck” move of the Izinyon-led counsel of Kayode Ojo to demand that the Supreme Court should reverse itself. And there is no doubt that the apex court confirmed its status as the most important institution in safe-guarding Nigeria’s democracy while ensuring the supremacy of the rule of law.
For, if the Supreme Court had reversed itself in the case of Kayode Ojo and many other errant ones before it, it would smack of judicial rascality, rendering the Supreme Court functions lacking in any form of finality. Also it would be tantamount to institutional breach of Section 235 of the Constitution, thereby allowing some political opportunists to use the breach to achieve their parochial interests.
My sincere take.