(By udems)
I read with shock a piece of news titled, “Falana Asks Afe Babalola, Olanipekun To Challenge N60m Fine, Says Supreme Court Lacks Powers To Impose Such On Lawyers,” published on https://thenigerialawyer.com/falana-asks-afe-babalola-olanipekun-to-challenge-n60m-fine-says-supreme-court-lacks-powers-to-impose-such-on-lawyers/. Therein, Mr Femi Falana, SAN, was reported to have argued that an application asking the court that delivered the judgment to set aside the judgment and replace it with another was not an application for review! His words:
“Both Applicants had prayed the apex court to set aside its judgment delivered on February 13, 2020 on the grounds that it was erroneously based on the belief that the Federal High Court had disqualified the governorship candidate of the APC whereas it only disqualified the deputy governorship candidate…. It is therefore submitted, without any fear of contradiction, that the Supreme Court lacks the power either under the Supreme Court Act or Rules of Procedure to impose costs against lawyers for filing appeal or application on behalf of their clients. To that extent, the costs of N60 million imposed on both senior counsel in PDP & 2 Ors. V. Biobara-Kuma Degi-Eremienyo & 3 Ors. (supra) ought to be challenged either at the African Commission on Human and Peoples Rights Commission in Banjul, The Gambia or at the Community Court of Justice (Ecowas Court). It ought to be pointed out that the violation of community citizens by any national court can be challenged at the Ecowas Court.”
Two questions arise from the above dictum of the learned silk: First, is there any difference between an application for setting aside a courts decision and an application for a review of the same decision of court? Second, before whom or which authority or body does Mr Falana expect Learned Silks, Chief Afe Babalola and Chief Wole Olanuipekun, to take their case against the Supreme Court to? To answer the first question, one is compelled to raise a related question, What are the results of a successful review application? Is it not for the court to either amend or to set aside outrightly, or, where the review-application fails, for the court to affirm the courts earlier stand? What then in effect is the difference between a review application and the application filed by Learned Silks (AFe Babalola and Wole Olanipekun) on behalf of the APC and David Lyon at the Supreme Court of Nigeria in February 2020, if one argues (as Mr Falana has) that the two are not for a review? With due respect, I see no difference. The two applications had clearly invited the supreme court to conduct a review of a decision I personally consider one of the finest decisions ever handed down by the apex court. See my opinion titled, “X-Raying The Supreme Court Verdict on Bayelsa Elections to Show How Mr. Femi Falana, SAN, Completely Missed The Point: A Rejoinder – By Sylvester Udemezue” (http://newswirelawandevents.com/x-raying-supreme-court-verdict-bayelsa-elections-show-mr-femi-falana-san-completely-missed-point-rejoinder-sylvester-udemezue/). The Oxford Advanced Learner’s Dictionary describes the word “review” as “a formal assessment of something with the intention of instituting change if necessary.” This is res ipsa loquitur! So, I leave it for the second question
Before whom or which authority or body does Mr Falana expect Chief Afe Babalola and Chief Wole Olanuipekun to take their case against the Supreme Court to? Mr Falana, SAN, is advising Chief Babalola, SAN, and Chief Olanipekun, SAN to “challenge” the decision of the apex court on cost – a cost of N60 million imposed to be paid by them — N30 million each —- as a result of the application they had filed at the Supreme Court, to “challenge” an earlier decision of the same court, which application the Supreme Court considered to be “frivolous” hence the punitive cost. The question now is, where now does Mr Falana want the duo of Babalola and Olanipekun to go to with the challenge he wants them to institute? Let us consider whether these are possible options, for arguments sake: Should they apply to the President of the Federal Republic for a review of the Supreme Court decision? No, the powers of the President to interfere with a decision of the Supreme Court is limited only to issues relating to exercise of his prerogative of mercy under section 175 of the Constitution – see section 235 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended; Should they apply to the “chief interpreter” and “chief reviewer” of Supreme Court decisions, who unilaterally decides how a decision of the apex court ought to be applied or should be obeyed and who to benefit or who would not benefit from court orders (see “Despite Supreme Court ruling, no one should be sworn in as Bayelsa Governor – Oshiomhole”) see https://www.premiumtimesng.com/news/headlines/377295-despite-supreme-court-ruling-no-one-should-be-sworn-in-as-bayelsa-governor-oshiomhole.html); Should they apply afresh to the Supreme Court for a second review of thet order for cost, which itself was as a fallout of the first review-application? Only God knows what the apex court would do this time in its fit of raging anger! Should they apply to the Nigerian Bar Association (NBA), the umbrella body of all lawyers in Nigeria? I understand the duo had earlier petitioned NBAs National Executive Committee (NEC). see “Bayelsa: Afe Babalola, Olanipekun drag Supreme Court justices before NBA over N60m penalty” (https://www.sunnewsonline.com/bayelsa-afe-babalola-olanipekun-drag-supreme-court-justices-before-nba-over-n60m-penalty/) But, with due respect, does this petition not appear laughable; reporting the Supreme Court of Nigeria, the highest court in the land, to the NBA? Exactly what is the NBA expected to do in the circumstances? Caution or warn the Supreme Court? Reverse the order as to cost? Assist the learned silks to pay their personal cost? Or What? Exactly what? Can someone help!
Should they apply to the National Judicial Council (NJC)? Unfortunately, this body, established by section 153 (1) (i) CFRN, 1999, has only the power to appoint, promote and discipline Judicial Officers, and does not have any jurisdiction to review or upturn any decision of the supreme court given in its judicial capacity.
Should they apply to the LPDC (Legal Practitioners Disciplinary Committee? but this body/Committee has power of discipline only over lawyers and not over judges and judicial officers. See section 11 and 12 of the Legal Practitioners Act, Cap L11, LFN, 2004.
Should they apply to the National Assembly of the Federal Republic of Nigeria? Unfortunately, this can only make laws which would apply to future situations and never retroactively. Besides, it has no powers to review any decision of the Supreme Court of Nigeria. Section 47 of the CFRN, 1999 establishes the National Assembly: “There shall be a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.” Section 4 (1) and (2) of the CFRN, 1999 then provides: “The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives. The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”
Should they apply to the Economic and Financial Crimes Commission (EFCC)? Unfortunately, this handles only corruption cases with a clear-cut mission to “to rid Nigeria of Economic and Financial Crimes and to effectively coordinate the domestic effort of the global fight against money laundering and terrorist financing.” (See https://efccnigeria.org/efcc/). The EFC cannot upturn a supreme court decision;
Should they apply to the Almighty Code of Conduct Tribunal (CCT)? This one appears to have arrogated to itself the power to do and undo. Nigeria’s CCT, practically, but not legally, speaking (a) has in the past granted order not provided for under any law, (b) has exercised powers not given to it by any law, (c) has granted annex parte application not moved nor argued in court by any lawyer, (d) has handed down orders the making of which was not seen nor done in open court, (e) has without any constitutional powers suspended/removed a Chief Justice of Nigeria (CJN) from his office. So, should we assume that CCT is now at liberty to act or fail to act irrespective of what the law says or does not say, and that if the application for “challenge of the N60 million order is taken before it, it would not mind sitting on appeal over a Supreme Court decision? Has it got that extent? I think not! So, I do not think Mr Falana had such in contemplation?
Should they apply to the African Commission on Human and Peoples Rights Commission in Banjul, The Gambia or to the Community Court of Justice (Ecowas Court), as suggested by Mr Falana? Unfortunately, there is NO right of appeal over Nigeria’s Supreme Court decision. See section 235 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which provides that “…no appeal shall lie to anybody or person from any determination of the Supreme Court” of Nigeria
Where then would these legal giants take their case against the apex court to? I think the answer lies in the declaration of his Lordship, Hon Justice Aminat Augie, JSC, who while delivering the Judgement that awarded the controversial N60 million cost, had accused the two senior counsel who filed the review-applications of “desecrating the sanctity of the court,” While declaring that no authority on earth has the power to review a judgement of the Supreme Court of Nigeria, His Lordship had concluded thus: “The decision of the court stands and is final in the real sense of the word, final, and no force can get this court to shift from its decision,” Besides, one has seen above, how section 235 CFRN has foreclosed any possibility of any appeal lying against a decision of the Supreme Court of Nigeria before any authority on earth: “…no appeal shall lie to anybody or person from any determination of the Supreme Court.”
I therefore respectfully submit with due respect that Mr Falana’s opinion and submission as reproduced above are completely misplaced. First, he’s aware of the declaration above by the supreme court, that no authority on earth has powers to sit in appeal over its decisions or orders. He is also aware of section 235 of the CFRN, 1999 on finality of Supreme Court decisions. Why then is he indirectly trying to stir up another round of confusion or controversy? I recall with respect that Mr Femi Falana’s earlier declaration alleging that the supreme court had delivered without jurisdiction, the 13/02/2020 judgment on Bayelsa State, was a major impetus for the filing of the two applications that had led to these heavy, punitive costs imposed against these learned silks. Mr Falana had then argued (and quite erroneously so) thus: “Bayelsa Election: Falana Says Supreme Court Is Wrong, Lacks Jurisdiction” (https://www.channelstv.com/2020/02/22/bayelsa-election-falana-says-supreme-court-is-wrong-lacks-jurisdiction/).
Shouldn`t Mr Falana at this point, advise these two legal giants (Chief Babalola and Chief Olanipekun) to just go and do the needful: obey a judgment of the highest court in the land, lest they each be accused of contempt of court in the form of a willful disobedience to a subsisting court order? In ATAKE V. AG, FEDERATION (1982) 11 S.C 175, Idigbe JSC explained what might amount to contempt of court: “any conduct which tend to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and or prejudice litigants
and/or their witnesses in the course of litigation.”. Also, in AGBACHOM V. THE STATE (1970) 1 All NLR 69 at page 77 (per Lewis J.S.C. citing with approval what Lord Russel laid down) contempt of court was defined thus: “any act done or writing published calculated to bring a court or Judge of the court into contempt or to lower his authority. This is one class of contempt. Further any act done or writing published calculated to obstruct or interfere with due course of justice or the lawful process of the Courts is a contempt of court. The former class belong to the category which Lord Hardwick L.C. characterize as range in scandalizing a court or a Judge: In Re Read & Huggonson (1742) 2 ARK 291, 469.” From the above, it’s clear that any willful disobedience to, or disregard of, a court order amounts to contempt of court.
In conclusion, although the courts are advised to always engage only in conducts and pronouncements that inspire, promote and sustain, rather than retard, public confidence and respect, yet litigants and their lawyers alike, involved in proceedings before the courts (as well as their partners and associates) must endeavor to cultivate and imbibe the appropriate manner of dealing with or responding to the courts and the judiciary as well as to valid or subsisting (especially unfavorable) court orders, bearing in mind what negative impact any contemptuous and disdainful conduct or stance (on their part) towards judicial orders and judicial officers, may have on the system of administration of justice and rule of law, without which democracy cannot survive. The rule of law demands that an order of court which is not subject of any appeal must be promptly obeyed. In Military Governor of Lagos State v. Chief Emeka Odumegwu-Ojukwu, the Supreme Court of Niger had warned that “it is a very serious matter for anyone to flout a positive order of a court…” Finally, in a paper titled, “Making and Breaking the Law: Justice In the Wake Of Disobedience of Judicial Orders – A Paper Presented at Law Society Conference on 14th August, 2014,” Gibson Kamau Kuria of the Kenyan Supreme Court had this to say on the need to promptly obey court orders: “ [One of the most patent features of a constitutional democracy is that] all individuals and institutions must obey court orders, that an order of the court must be obeyed and that those who wish to get rid of it must do so by the proper course of appeal or applying for it to be set aside. For as long as it exists, the order must be obeyed and obeyed to the letter. In a country where court orders are not obeyed, it is chaos, not order, which reigns.” Let he who has ears, hear!
Respectfully,
Sylvester Udemezue (udems)
(udemsyl@hotmail.com)
(22/03/2020)
