The appeal filed by the All Progressives Congress (APC) in Rivers State at the Supreme Court to reverse itself in the judgment it gave to bar the party from fielding candidates in the 2019 general elections was dismissed last Thursday for being incompetent. A legal egghead and university teacher, Prof. Edoba Omoregie, in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, examines the circumstances under which the apex court can over-rule itself. He also spoke on other topical issues.
Professor Edoba Bright Omoregie lectures at the department of private and property law, Faculty of Law, University of Benin.He earned his Bachelor of Laws (LL.B) in 1991, from the University of Benin, Benin City, attended the Nigerian Law School in Lagos and bagged his Barrister-at-Law (BL) in 1992. Omoregie subsequently earned a Master of Laws (LL.M) and Doctor of Philosophy in Law (PhD) of the same University of Benin in 1999 and 2010 respectively.Currently the Head, Legal Research Division, National Institute for Legislative and Democratic Studies, Omoregie is a member of various professional organizations such as Nigerian Bar Association (NBA), Nigerian Association of Law Teachers (NALTS), World Jurists Association (WJA), Federal Union (FU), American Society of Political and Legal Philosophy (ASPLP) and International Public Policy Association (IPPA).
Under what circumstances can the Supreme Court reverse or upturn its own decision?
The issue raised by the question borders on the principle or doctrine of judicial precedent. As a general rule, the Supreme Court (as all courts below it) is required to uphold its previous decisions. The Supreme Court alone may in exceptional cases reverse its previous decision in a subsequent matter where that previous decision was obviously wrong or given in ignorance, or what lawyers refer to as decision given “per incuriam” (Latin word for “in ignorance”). This is a very rare occurrence. The Nigerian Supreme Court first did this in a 1971 decision “Johnson & Sons v. Lawanson & Ano”, where the court overruled a line of previous decisions on the proper interpretation of section 129 of the old Evidence Act on presumption of correctness of recitals in a deed.
Aside from the 1971 example you cited, do we have a recent precedent where the apex court reversed its own verdict?
There are many other such decisions. The most recent is “Akeredolu v. Abraham” (2018) in which the Supreme Court implicitly overruled its previous decisions on the service of originating process “outside the jurisdiction of the Federal High Court” where the suit was commenced. The previous decision was to the effect that where a party to the proceeding is resident or domiciled outside the state where the court is located, the leave of court is required under section 97 of the Sheriff and Civil Process Act to effect service on the party. In fact, the Supreme Court in a 2008 decision “MV Arabella v. Nigeria Agricultural Insurance Corporation” held that the process to be served outside jurisdiction must be specially endorsed with certain remarks indicating that the process was being served accordingly. However, last year (2018), the Supreme Court held to the contrary concluding that “outside jurisdiction” provided in section 97 of the Sheriff and Civil Process Act only refers to “outside Nigeria” as far as processes to be served on persons in respects of matters originating from the Federal High Court since the entire territory of Nigeria constitutes the jurisdiction of the Federal High Court, and not only the state where the particular court is located. In order words, by the “Akeredolu v. Abraham” decision, leave of court is not required to serve an originating process from one state where a Federal High Court is located on a party resident or domiciled in another state!
The Chief Justice of Nigeria has reportedly resigned due to the charges of misconduct leveled against him by the executive and his subsequent suspension from office. Do you think that the procedure adopted by the government in suspending him was in order and in accordance with laid down laws on the removal of a CJN because there are different shreds of arguments and opinions on this?
The arguments are needless. The Chief Justice of Nigeria is the head of the judicial branch. He’s not inferior to the President or the Senate President. He is on equal footing with each of them as all three head respective branches of government. This is in tandem with our system of separation of powers, which is fully enshrined in sections 4, 5 and 6 of the Constitution. However, they can check and balance each other as provided in the Constitution. Where there’s no provision for such check including suspending the CJN, none can be exercised. The President clearly acted ultra vires his powers to claim that he has suspended the Chief Justice of Nigeria because he was asked by the Code of Conduct Tribunal Chairman to do so. It’s a dangerous precedent, which does not portend well for our nascent democracy. Unfortunately, the National Assembly was tepid in reacting to the sad episode. But we all know the political problems, which the legislative branch ran into when the episode happened. On the whole, the event is an acid test for our democracy. But it doesn’t bode well. Concerning the resignation of the CJN, I will rather reserve comments on that. The details are still not out officially. I think media reports are insufficient to make comments upon. Until we get official confirmation of the development, I would rather reserve comments.
You are aware that the NJC has submitted their report to Mr. President. Reports say the body absolved the acting CJN of any infraction and recommended the retirement of the CJN. How do we reconcile this decision in the light of the decision of the same NJC in the matter involving Justice Obisike Orji of Abia state judiciary who was recommended for dismissal for accepting to step in as Chief Judge and that of the acting CJN, Justice Mohammed Tanko who offered to serve in acting capacity?
Well, I think these are media reports. The NJC officially said it would not follow its usual practice of informing the public of its deliberation. As I said, I would rather await the official release of the outcome of NJC deliberation or its recommendations. Don’t forget that the NJC is actually an executive body under the Constitution (section 153) and it can only make recommendations, which may or may not be acted upon. Concerning its previous recommendations including the Abia episode, I think there’s nothing that says the NJC should stick to it if the facts are different. However, under the current circumstances, we should not have been talking of the issue of suspension of the CJN and appointment of an Ag. CJN if the President had exercised restraint in declining to act ultra vires, even under a purported “order” of a tribunal – which clearly lacks power to make such order.
We are trying to build a democracy after years of interruption. A lot is required of players in the political arena to look at the bigger picture in exercise of power, even power clearly vested by law, let alone one contrived. In any event, there’s a major constitutional directive that government shall abolish abuse of power (section 15 (5)) even while complying with the directive to abolish corruption in the same subsection. So, there’s a simultaneous responsibility on the part of government to abolish corruption and at the same time abolish abuse of power. The directive is to “government”, not any particular arm of government. So, we must be careful not to create an impression or a situation that only the executive branch has the obligation to implement or comply with section 15 (5), or that one leg of the directive in the section can be implemented while trashing the other. In my view, what has happened in the last few weeks since January 2019 calls for sober reflection. Do we truly believe in democracy or do we want to sustain democracy in our country? It’s something we should all reflect on. I say this because the judiciary is the only bulwark against democratic breakdown. If we strip it naked (pardon me) and destroy judicial independence, we would have dealt democracy a mortal blow, sooner than later. I hope we are not walking our way to that unfortunate end because ours is a very fragile democracy, which can easily unravel under the weight of arbitrary actions by those in power.
But some senior lawyers have expressed the view that the composition of the NJC needs review, that it does not inspire confidence because a sitting CJN usually chairs the body and when the issue of discipline of judges comes up, lawyers in attendance are asked to step out. The argument is that it is violating the canons of equity that says one cannot be a judge over his own case. What do you think of this?
I think the arguments are neither here nor there. The whole idea of the NJC is absurd in many respects. There’s absolutely no basis for the existence of the body in the first place. As I have said, the judiciary is a separate arm of government. It should not be infiltrated by any external body in its management. Who interferes with the executive branch or the legislative branch in their internal management? The NJC is a reinvention of the Advisory Judicial Council AJC, which was introduced by the military after the coup of 1983. That was the beginning of centralisation of the judiciary. It’s a strange contraption in the federal system as it is also an affront to the principle of separation of powers as it is an executive body charged with the responsibility of disciplining judicial officers and making recommendations to the President or Governors as the case may be. The clear impression you get is that the judiciary is subordinate to the executive branch. The NJC was not in the Independence (1960), Republican (1963) and even the 1979 Constitutions.
I believe the NJC should be abolished. Let the judiciary determine discipline on its own without interference. Where there are constitutional infractions by a judge, or justice of the Supreme Court, let the due process laid down in the Constitution be strictly complied with in the same way as seeking to impeach the President or Governor of a State. The idea of submitting disciplinary process in the judiciary to an executive body is a complete travesty. It defeats the principle of separation of powers, and in relation to state judiciary, which are also subject to the NJC, it offends basic principles of the federal system. There’s therefore a clear need for constitutional reviews on all these matters. Under the 1979 Constitution, each state has its own Judicial Service Commission, while the federal government has its Federal Judicial Service Commission. These were separate and independent bodies.
The Federal Judicial Service Commission had no control of State Judicial Service Commissions. We need to restore order in judicial administration. Unfortunately, I don’t think members of the legal profession are looking at these issues closely from the point of view of how the judiciary should be organised in terms of basic, indispensable principles of judicial organization; in terms of cross-country experience and practices; and in terms of our own judiciary history. I believe the current system creates too many opportunities for executive branch infiltration in the judiciary, from appointment to disciplinary processes. It’s unhealthy for judicial independence. All stakeholders should sit down to seriously confront these matters and set constitutional alteration agenda to restore proper independence to the judiciary. Otherwise, our democracy and the entire justice system may be damaged irreparably. The signs are there already.
Going by your proposal, which body will now be charged with the responsibility of disciplining erring members of the bench? And how is the NJC an executive body? Is it simply because it submits its report to the executive?
I think my point is clear enough. The judiciary is an independent, co-equal arm of government. If a judge violates his/her office, a procedure for disciplining the judge should be clearly set out in the Constitution for trying and ultimately impeaching/removing the judge, as is the case with elected members of the other branches. It should never be left to a permanent body. It must be a body, which can only be constituted whenever a serious allegation is made. And it must be a body of sitting justices whose recommendations should be presented directly to parliament. The executive branch should have nothing to do with disciplinary processes of judicial officers! Notice the emphasis I have put to my last sentence. It’s to emphasize the importance we should attach to it. Thus, a judge can be appointed by the recommendation of the executive branch, and confirmation of the legislative branch, but in disciplinary matters, the judge’s peers (fellow judicial officers) shall determine the fate of the judge, with parliament having the final say. This is the universal best practice.
The reason for this approach is to guarantee judicial independence, security of tenure for judicial officers, and to inspire confidence in judicial officers to be courageous (without fear or favour) in their judicial capacity. The current arrangements do not guarantee these. Judicial officers are too exposed to the manipulative influence of the executive branch in many, many ways. It must be said that litigants should be encouraged to pursue appeals against what they consider wrongly decided suits in which they are parties than always imputing bias or other allegations against judges. However, where the allegations are serious enough and are within those which can earn the judge removal, they can be taken through a process leading to removal. There have been too many cases of frivolous petitions against judges, which have generally diminished judges’ capacity to courageously dispense justice. I say this from my careful observation over the years. Section 153 of the Constitution lists NJC as such. And in exercising its powers, it acts accordingly – as an executive body!
We are just ending the national elections, obviously characterized by violence and irregularities. Do you on account of this subscribe to the idea of establishing a special court to try electoral offenders?
Yes I do. I think we should actually have a special prosecutorial body for them as well. This can be ad hoc and constituted by the CJN or CJ of the state depending on the offices involved after the elections just as election tribunals are constituted after elections. Details of this can be worked out. Currently, INEC is empowered to prosecute electoral offences. INEC hardly carries out this responsibility because it’s clearly overburdened. In any event, I think it’s simply awkward for INEC to be the arbiter and prosecutor at the same time. What if INEC officers are accused of infractions? Who will prosecute them?
The fundamental objective and directive principles of state policy in section 13 of the 1999 constitution is non justiciable. Will it be wrong to say that it is the reason lawyers have not sued the federal or state governments over the pervasive insecurity in the country since subsection 2(b) of that section said that security and welfare of the people shall be the primary purpose of government?
Well, I don’t think the intendment of the drafters of that Chapter is to elicit suits against government per se. If you read the title of the Chapter closely, it’s what we refer to as the policy provisions of the Constitution. It’s a road map for government, from where to formulate government programmes and to make laws, where necessary. In any event, the idea that Chapter II is necessarily unenforceable is not quite correct. It’s a misreading of section 6 (6) c of the 1999 Constitution, which does not create a total bar against enforcement of the chapter. If in other portions of the Constitution, matters contained in Chapter II are enforceable, they will be enforced.
Speaking pointedly about the issue of the security and welfare of the people, I think there are already obligations under the law compelling government to provide security for the people (section 11 of the Constitution). For instance, the police are required to maintain law and order. If the police are negligent in this regard, it can earn them civil liability and even criminal actions, depending on the circumstances. About welfare, there are a number of laws already enacted which guarantee welfare provisions for citizens. In making these laws, direct reference to Chapter II may not have been made, but rights may be vested in them. A good example is the right to be educated up to junior secondary education level free of charge in a public institution, under the Universal Basic Education Act. The reality is that many people are not conversant with many of these laws. Therefore, litigations over them are virtually non-existent.
Are you saying that even lawyers who can initiate legal actions are not conversant with those laws?
Well, with due respect to my colleagues, lawyers often limit their concerns to matters they have been briefed to handle. Live matters, usually where a party complains of breach of rights often well known. However, there are a number of activist lawyers who go beyond this, but they are now quite few compared to the days of military rule. It’s heartening to note that Dr. Olisa Agbakoba (SAN) who, together with some other brilliant lawyers, pioneered the Civil Liberties Organisation in the 1980s, has continued to be active in this regard. But generally, we haven’t seen much activism from many lawyers under the current democratic dispensation. We ought to see more of these, in order to have judges make definitive pronouncements on these matters. Currently, scholars have written on some of these matters, but there is a huge difference between scholarly writings based on the letters of the law, compared with one, which is based on judicial pronouncements.
Culled from The Guardian Interview with Prof. Edoba Omoregie