After forensically dissecting the text of the Supreme Court judgment, Senator Sola Akinyede a constitutional lawyer, published an article entitled Supreme Court and Imo: A Matter of Courage on the back page of ThisDay of January 27.
In it, he called for a review of the Supreme Court decision. His argument: “The decision of the Supreme Court in Imo goes beyond Ihedioha.
It goes beyond Imo. It goes beyond PDP or APC. It goes to the heart and foundation of the acceptability, credibility not just of the Supreme Court, but of our justice system and our democracy.
Amid its conflicts and contradictions, if this decision is allowed to stand, it will set a precedent, and under the doctrine of STARE DECISIS, the decision must be replicated in the different Election Petitions Tribunals and Divisions of the Court of Appeal across the country with each one picking any that fits its fancy.
With a loss of confidence in the justice system and disparate decisions by the various courts and Tribunals, the consequences could be grave, leading to a breakdown of law and order in different parts of the country in 2023/2024.
“By changing the time-honoured legal principles and accepting the results from a police officer who was not at the 388 polling units, the Supreme Court may not appreciate the serious implications of their decision.
But as a politician, I know that without knowing it, they have just given a licence to politicians to manufacture results from their bedrooms and call an army officer, Civil Defence officer or anyone to present the results in court.”
Nigeria is retrogressing, rather than progressing. In the years immediately following the Wind of Independence that blew across Africa, Nigeria played a leading role in supplying many newly independent eastern and southern African countries with judges. Dr. Udo Udoma was the Chief Justice of Uganda in the 1960s, for instance.
Justice Michael Onyiuke was a judge in Tanzania. Justice Emmanuel Ayoola was a Judge of the Appeals Chamber of the Special Court for Sierra Leone.
Nigeria’s renown as a centre of jurisprudential excellence was global. Justices Teslim Elias, Charles Dadi Onyeama, Bola Ajibola, and Clement Akpamgbo were judges of the World Court in The Hague.
But witness what is happening today. The Kenyan Supreme Court on September 1, 2017 nullified the re-election of President Uhuru Kenyatta, after finding that the presidential ballot held a month earlier were “tainted by irregularities.”
Only on February 3, a Malawi constitutional court nullified last May’s election of President Peter Mutharika on the grounds of “massive irregularities. Kenya gained Independence in 1963; Malawi gained Independence a year later.
But, in Nigeria that became Independent in 1960, the Supreme Court has foisted a governor on Imo State on the strength of fabricated results that are tainted by massive inconsistencies, illogicalities and irregularities.
It is welcome news that EmekaIhedioha promptly filed processes for the Supreme Court decision that unjustly ousted him from office to be reviewed.
People, however learned they may be, are wrong who claim that all Supreme Court judgments are set in granite. They are changeable. Here is the Hon Justice Chukwudifu Oputa, the Socrates of the Nigerian Bench, on the subject:
“We are final not because we are infallible; rather, we are infallible because we are final. Justices of this Court are human beings, capable of erring. It will be short-sighted arrogance not to accept this obvious truth.
It is also true that this court can do inestimable good through its wise decisions. Similarly, the court can do incalculable harm through its mistakes.
When, therefore, it appears to learned counsel that any decisions of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled.
This court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.” Justice Oputa was delivering the lead judgment in Adegoke Motors Ltd vs Adesanya in 1989.
Other congruent views are apposite here. Professor Ben Nwabueze is generally acclaimed as Africa’s foremost constitutional lawyer, with dozens of books and hundreds of scholarly papers to his name.
In a 2005 paper entitled When A Court Decision, As The Foundation Of The Rule Of Law, May Be Set Aside, Professor Nwabueze argued that “The general rule governing the latter (setting aside or reversing the outcome of a case) is that of stare decisis; past decisions should be followed in the decision of present or future cases in the interest of certainty, predictability and stability in the system.
But the rule allows for considerable flexibility in its application, a discussion of which is not appropriate here, except to say that even the Supreme Court, as the court of last resort, has laid it down that it will, albeit only sparingly, ‘depart from and overrule its previous decisions where, inter alia, (i) it is shown that the previous decision is erroneous in law; or (ii) the previous decision was given per incuriam; or (iii) it is shown that the previous decision is contrary to public policy or is occasioning miscarriage of justice or perpetuating injustice’: Att-Gen of the Federation v. Guardian Newspapers Ltd  9 NWLR (Pt 618) 187 at page 266, as per Iguh JSC delivering the lead judgment.”
Again! “…the Supreme Court has laid it down that such a power (to alter decision already taken) does inhere in every court. In Okafor v. Att-Gen of Anambra State (1991) 7 SCNJ )Pt 11) 345 at pages 360-361, it said, per Karibi-Whyte JSC: ‘There is no doubt that a court has the authority to declare its judgment or the judgment of another court of co-ordinate jurisdiction null and void if there is a fundamental defect in the proceeding which goes to the issue of jurisdiction and competence.”
It has been reported that all the 17 distinguished Supreme Court justices will sit to examine Governor Ihedioha’s plea for a reversal of the judgment that forced him from office.
Only one prayer is inevitable at this critical junction. It is this: That the cerebral, honourable and distinguished Supreme Court justices should bear in mind the forthrightness and impeccable moral and legal rectitude of Justice Oputa, their late, incorruptible member, to wit: “It is … true that (the Supreme Court) can do inestimable good through its wise decisions. Similarly, the Court can do incalculable harm through its mistakes.”
Justice Oputa was saying that, by its decisions, the Supreme Court could make or mar a nation, could preserve or pulverize a people, could develop or demolish an entity.
Would the apex court succumb to the allure of lending a hand to the dismantling of Nigeria, or would the cadences of its pronouncements constitute cornerstones for the enthronement of a society bound by truth, equity and justice? There is no doubt whatsoever that what Ihedioha got from the Supreme Court judgment of January 14, was a short shrift.
How could it ever be dreamt of, let alone be brazenly declared in the state of wakefulness, that during 2020, someone assumed the governorship of a Nigerian state on the untenability of 103,257 fictitious votes incongruously sanctioned by the Supreme Court of the Federal Republic of Nigeria?
Yet, still, to cite Senator Sola Akinyede one more time: “Justices of the Supreme Court are human beings and, therefore, fallible.
This is more so having regard to the workload thrust upon them not just by gubernatorial election petitions, but by pre-election matters in gubernatorial and other elections.”
The point of the above citation is to forcefully dissuade the proclivity to insinuate corruption as the launchpad of the bizarre anti-Ihedioha verdict.
I personally consider it a mistake, albeit a lamentably grievous one. What not to do? The Supreme Court must not shoot into the belly of permanent, inerasable records, a declaration that it is legally fitting and morally proper to index Nigerian electoral offices on fictitious votes illegally submitted by characters in uniform. What to do? The only sensible option for any sane person trapped in a pit is to stop digging.