by Jite Ogunye
There is a political crisis in Rivers State and obviously the PDP wants Amaechi out of power. The PDP will wish to have a deus ex machina. But the PDP is not even a party to this Appeal; and the Supreme Court has abundantly demonstrated in many cases that it is a court of law and justice and not a court of politics and partisanship.
When did the first term of Governor Rotimi Amaechi begin: Was it on 29th May, 2007 when his substitute in the 2007 Rivers State Governorship Election, Celestine Omeiha, who went on to win the 2007 Governorship election, took the oath of office, or when he (Amaechi) took the oath of office on the 26th of October, 2007, following the Judgment of the Supreme Court which ousted Celestine Omeiha from office?
The question must also be asked: When did the first term of Governor Amaechi end? Was it four years from the 26th of October, 2007, the date he belatedly took the oath of office after the Supreme Court declared him the rightful PDP Candidate in the 2007 Rivers State Governorship Election?
Note please that this was after he was wrongly substituted by his party, the PDP, having won the PDP primaries, and thus the legally deemed winner of the 2007 Governorship election, but, in fact was disallowed from contesting.
Was it four years from May 29th 2007, when Celestine Omehia who was sworn into office in his stead, took the oath of office?
In other words, could one say that Celestine Omeiha’s almost five month stay in office as governor of Rivers State was part and parcel of Governor Amaechi’s first four year tenure in office between 2007 and 2011, or did Amaechi’s tenure start from when he was sworn in, following the removal of Omeiha from office?
In the Appeal now pending before the Supreme Court for consideration, If the Supreme Court holds that the first term of Governor Amaechi ended four years after he took the oath of office and not four years after Celestine Omeiha took the oath of office, what consequence will that have on Governor’s Amaechi election for his second term in office,?
It is instructive to recall that his election that took place on 26th April, 2011, which is to say, on his current term, that commenced on May 29th, 2011, before the expiration of four years from when he was first sworn in as Governor, and which term is now more than half term spent ?
If on the other hand, the Supreme Court holds that the first term of Governor Amaechi ended not four years after he took the oath of office, but four years after Celestine Omeiha took the oath of office on the 29th of May, 2007, what will be the consequential order the Supreme Court could make, in the circumstances.
The foregoing questions are the issues that the Supreme Court will resolve in an Appeal that is now pending before it. Hearing in the Appeal comes up on the 11th of November 2013.
The facts of the Appeal are as follows: In 2010, INEC published the timetable for the conduct of the 2011 General Elections, and slated therein the holding of the Rivers State Governorship Election for August, 2011. The timetable also included staggered dates for the conduct of governorship elections in five other states whose governors then were seeking judicial determination ( or elongation) of their respective tenures, as a fallout of the protracted and elongated 2007 electoral disputes, which resulted in the nullifications of some governorship election results and ordered reruns of governorship elections which, again, were won by the governors. The INEC’s timetable would have resulted in the first term tenure of Governor Amaechi ending on October 25th, 2011, the eve of four years after his taking the oath of office as governor on the 26th of October, 2007, following his victory at the Supreme Court in Amaechi v INEC ( infra )
Disagreeing with the INEC’s timetable as it related to the conduct of the 2011 governorship election in Rivers State, Governor Ameachi’s Legal Adviser, Chief Cyprian Chukwu filed a suit at the Federal High Court in Abuja against Amaechi and INEC, contending that the date fixed by the INEC’s timetable was wrong. The gravamen of his suit was that since the SUPREME COURT ‘s decision which brought Amaechi to power in 2007 was that it was the Peoples Democratic Party (PDP) that won the April 2007 governorship election in Rivers State, Amaechi’s tenure started counting on May 29, 2007 and not on October 26th, 2007 when he was sworn in, after Omehia was sacked.
His contention was that since the Supreme Court ‘s decision was that Governor Amaechi, and not Celestine Omeiha was the one sponsored as candidate by the PDP, and was the one that must be deemed to have won the April 14th 2007 governorship election in Rivers State, Amaechi’s tenure started counting on May 29th, 2007, when Omehia was sworn in, and not when Amaechi was sworn in on October, 27th 2007..
Agreeing with this contention, the presiding Judge, Abdul Kafarati, J held that the period spent in office by Omehia, who was sacked by the Supreme Court, formed part of Amaechi’s tenure of four years, stating that the tenure would end on 28th May, 2011, since his election of April 14, 2007 under the PDP platform was never nullified by any court. The Court also clarified that the Supreme Court in its judgment in Amaechi v INEC only ordered Omehia to vacate an illegally occupied office for the rightfully elected person and did not cancel the result of the 2007 election or order a fresh election.
The Court stated that although Amaechi took the oath of office and oath of allegiance on October 26th, 2007, his tenure had started running from May 29th of 2007 when the PDP Candidate in the 2007 Election, Celestine Omeiha was sworn into office. Kafarati, J then ordered INEC to conduct a new governorship election in Rivers State leading to the commencement of a new tenure on 29th May, 2011 when Amaechi’s four-year tenure would have legally expired. The Rivers State Governorship election was subsequently held on April 26th, 2007, and Amaechi was sworn into office on May 29th, 2011, for a second term of office, having won the election.
Dissatisfied with the judgment, Amaechi and INEC appealed to the Court of Appeal (CA) in Abuja. It was at that stage that Omehia, who had unsuccessfully tried to get the Supreme Court to review its decision sacking him from office, applied, successfully, to be joined to the appeal. Dissatisfied with the CA’s decision joining Omeiha to the appeal, Amaechi filed an interlocutory appeal at the Supreme Court , contending that Omeiha was not a proper party to have been joined to the appeal and challenging the decision of the Court of Appeal to join Omehia as a party in the substantive appeal. Other parties in the appeal have, however, filed their separate appeals and applications at the Supreme Court.
Interestingly Omehia’s substantive relief in the CA, relying on the ratio of Obi v INEC (infra) and S. 180 (2) (a) of the Constitution, is to set aside the decision of Kafarati, J and declare that having regard to the fact that Governor Amaechi took the oath of allegiance and oath of office as the elected governor of Rivers State on October 26, 2007, his tenure of office ought to have ended on October 25, 2011, and not on May 29th, 2011. If the Court agrees with him, the consequence may mean that the 2011 Governorship Election in Rivers State that was held by INEC on 26th April, 2011, and the swearing in of Amaechi for a second term in office on 29th May 2011 were premature, illegal, unconstitutional, null and void, in that the first term of Amaechi had not yet ended when another election was conducted and another term (now two years old) was created. Instructively, Omeiha had contested as the APGA Governorship Candidate in the 2011 Rivers State Governorship Election. He lost.
Now, in resolving the questions in the substantive Appeal now before the Supreme Court, two previous decisions of the Court will certainly be revisited. These are the cases of Obi v INEC, 2007, 11 N.W.L.R (Part 1046), 565, and Amaechi v INEC, 2008, 5 NWLR, (Part 1080), 227.
In the case of Obi v INEC, reported in 2007 11 N.W.L.R (Part 1046) at page 565, the Supreme Court interpreted the provision of Section 180 (1&2) of the 1999 Constitution which governs the tenure of office of governor of a state. The Court stated emphatically that the tenure of office of Governor Peter Obi, who took the oath of office on 17th of March, 2006, as Governor of Anambra State, upon the nullification of the election of Dr. Chris Ngige to the said office, conclusively by the Election Petition Appeal Tribunal, would come to an end four years after Governor Peter Obi took the oath of office. The case arose, and was litigated up to the Supreme Court, when INEC, in 2007, declared that the tenure of Governor Peter Obi would end on 28th April 2007 and that the office would become vacant for the purpose of conducting election into same.
INEC’s contention was that Governor Obi would merely complete the “indivisible” tenure of office, which his “predecessor” Dr. Chris Ngige started enjoying on May 29, 2003, when he took the oath of office. This position was flatly rejected by the SUPREME COURT , when it stated in the leading Judgment of Aderemi, J.S.C. at page 644, para.C-E that: The arguments of the respondents here is very tenuous. When verdict of the Court of Appeal (Enugu Division) declaring the present Appellant as the rightful person to have been declared having won the gubernatorial election in April 2003, was handed down, the effect is that the return of Dr. Ngige as the person who won the election was null and void and of no legal consequence. So Ngige’s oath taking at the time cannot be a point of reference in calculating the four year term of the Appellant. Ngige was andcannot be a person first elected as Governor under the Constitution,his election having been declared null and void”
In Amaechi v INEC, 2008, 5 NWLR, (Part 1080), 227, a pre-election matter that lasted beyond the conduct of the election, the Supreme Court decided the legal right of Amaechi to stand as the governorship candidate of the PDP in the Rivers State Governorship Election in 2007. Following the conduct of the PDP primaries, won resoundingly by Amaechi, the PDP on the December 14th, 2006 forwarded his name to INEC as her candidate for the governorship election of 13th April, 2007. After the publication of the name of Amaechi, as the PDP Candidate, the PDP withdrew his name as a Candidate and on 2nd February, 2007 sent the name of Celestine Omeiha, who did not participate in the primaries at all as her substitute governorship candidate, claiming that Amaechi’s name was submitted in error. Before that development, however, Amaechi had approached the Federal High Court to seek an order, amongst other reliefs, restraining the PDP from substituting his name.
In disregard of the action, INEC did not only effect the substitution but also conducted the governorship election, and presented a certificate of return to Celestine Omeiha, when he won the election. Thereafter, he was sworn in as Governor on 29th May, 2007. When, eventually, the appeal arising from the Federal High Court and Court of Appeal’s determinations of Amaechi’s grievance got to the Supreme Court, the Court held that no cogent and verifiable reasons having been given for the said substitution, in accordance with the provision of S.34 (2) of the Electoral Act, 2006, the said substitution was null and void; and that in the eye of the law, Amaechi, and not Omeiha was the candidate who contested and won the governorship election and who must be deemed to have been sworn in. The Supreme Court then shrugged off the attempt to foist a fait accompli on it and made a consequential order removing Omeiha from office and directing that Amaechi be sworn in as Governor.
In the public commentary on this important Appeal, opinions are unnecessarily focused, in our view, on the SUPREME COURT revisiting its judgment. The Supreme Court can revisit its earlier decision, but in doing so, it cannot re-hear or re-adjudicate or re-determine the case wherein the decision was made. Revisiting a judgment does not imply undoing it. The Supreme Court can only revisit a previous decision for the purpose of judicially admitting that that decision was erroneous, in order to guide the determination of the current case under consideration and similar cases in the future.
The 1999 Constitution and the Rules of the Supreme Court, 1999 provide respectively for the finality of the determination of the Supreme Court. S. 235 of the Constitution states that “without prejudice to the powers of the President or of the Governor of a State with respect to prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court.” Order 8 Rule 16 of the Supreme Court Rules provides that “the Court shall not review any judgment, once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention.
A judgment or order shall not be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form be substituted.” This is why Eso J.S.C stated in Adigun v. AG, Oyo State (No.2) [1987] 2 NWLR (Pt. 56) 197 at 214 – 215 that “the decision of the Supreme Court is final. Final in the sense of real finality in so far as the particular case before that court is concerned. It is final forever, except there is legislation to the contrary, and it has to be a legislation ad hominem.” In Obioha v. Ibero (1994) 1 NWLR (Pt 322) 503, a full panel of the SUPREME COURT , comprising Uwais J.S.C (as he then was), who presided, and Belgore J.S.C, who read the lead judgment unanimously held that “there is no constitutional provision for the review of the judgment of the Supreme Court by itself; that there can be no appeal questioning the decision of the Supreme Court to itself or to anybody or person as there must be finality in litigation; and that where a court has decided an issue, and the decision is correctly embodied in its judgment, such a court cannot reopen the matter in order to substitute a different decision in place of the one which had been recorded as it must have become functus officio.” Belgore J.S.C, at page 520, paras. E-G of the Report stated that “once the Supreme Court has entered judgment in a case, that decision is final and will remain so forever. The law may in future be amended to affect future issues on the same subject, but for the case decided that is the end of the matter.”
The Supreme Court can however overrule its earlier decision in a subsequent case, under Order 6 Rule 5(4) of its Rules, if it is properly invited to do so. The court usually overrules its previous decision where it is shown that the previous decision is erroneous in law, or the previous decision was given per incuriam (wrongly decided) or it is shown that the previous decision is contrary to public policy or occasioning miscarriage of justice or perpetuating injustice (see Rossek v. A.C.B. Ltd (1993) 8 NWLR (Pt.312) 382 at 447 paras. B-E, AG Federation v. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 187 at 222 paras. E-F; 241 paras. A-B and 266 paras E-G). But this does not affect the legal rights and benefits created by the decision that is overruled.
Explaining the basis of power of the Supreme Court to overrule itself, Oputa J.S.C (as he then was) stated in Adegoke Motors v. Adesanya (1989) 3 NWLR (Pt.109) 250 at 274-275 that: “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 certainly be shortsighted 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 decision of this Court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be over-ruled. This Court has the power to over-rule 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.”
Contrary to some opinions being canvassed in the public, the issue to be resolved in this Appeal is not revisiting and overruling Amaechi v. INEC or Obi v. INEC. Both decisions were good and they have served their respective purposes. Our view is that this instant Appeal is about harmonizing the decisions in both Amaechi v. INEC and Obi v. INEC in determining when the first term of office of Amaechi started and when it ended. This is not the first time the SUPREME COURT will be called upon to decide the issue of tenure. In Ladoja v. I.N.E.C, 2007, 12 N.W.LR, Part 1047, 119, Governor Rasheed Ladoja, whose impeachment by the Oyo State House of Assembly was declared null and void, both by the Court of Appeal and the Supreme Court, was kept out of office for eleven months. He, therefore, sought the court’s declarative reliefs, amongst others, to the effect that the period of his absence from office be deducted from his four-year tenure, and that as such his tenure of office should extend beyond May, 29, 2007. The Supreme Court refused the prayers.
In refusing the prayers, the Supreme Court held that “Neither the Supreme Court nor any other court has power to extend the period of four years preSupreme Court ribed for a governor of a state beyond the terminal date calculated from the date he took the oath of office. In this case, the appellant whose tenure of office commenced on 29th of May, 2003 when he took his oath of allegiance and oath of office to serve his first term of four years in the office as Governor of Oyo State could not show anything on record by which the fixed period of four years under Section 180(2)(a) of the 1999 Constitution could be extended beyond 29th May, 2007″
The public apprehension, hysteria and interest that this case is generating is understandable. There is a political crisis in Rivers State and obviously the PDP wants Amaechi out of power. The PDP will wish to have a deus ex machina. But the PDP is not even a party to this Appeal; and the Supreme Court has abundantly demonstrated in many cases that it is a court of law and justice and not a court of politics and partisanship. The Court is a judicial and not a political arena. Commentators and publicists should, therefore, be restrained and objective in commenting on this Appeal, and while exercising their right to freedom of expression, trust that the Supreme Court will do a supreme job.
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