Are technicalities bearing justice miscarriages in the apex court?

The Supreme Court has come under criticism in recent times following some of its decisions. With some of the judgements of the Supreme Court being questioned, legal experts are of the view that this may dwindle faith in the judiciary.

Of note is the decision of the Supreme Court in Ahmed Lawan v Bashir Machina which produced a senator who did not contest as a candidate in the senatorial primary elections.
Lawan, who first sought the presidential ticket did not participate in the May 28, 2022, primary election held for candidates contesting for his party’s (the All Progressives Congress) senatorial ticket for Yobe North for the 2023 general elections. The particular election was supervised and approved by the Independent National Electoral Commission (INEC). However, after withdrawing from the presidential race, Lawan later emerged winner of the Yobe North senatorial ticket at another primary election that was conducted.

Following this, Bashir approached the courts to reclaim his mandate as the senatorial candidate for Yobe North under the APC. He was declared the rightful candidate by both the trial court and the Court of Appeal. However, the Supreme Court allowed the appeal by Ahmed Lawan and declared him the senatorial candidate.
The apex court’s justification for this decision is that the action by Bashir Machina was first instituted at the trial court inappropriately. Bashir had come to the court by way of an Originating Summons instead of a Writ of Summons, a procedure used in controversial matters. Bashir had used a procedure meant for non-controversial cases.
While on the face of this, the decision of the apex court seems in line with the law, several precedents toe a different line.

The Supreme Court of Nigeria in the 2018 case of Akeredolu v Abraham stated that “technicality in the administration of justice shuts out justice”. Further, the court noted also that, “man denied justice on any ground, much less a technical ground, grudges the administration of justice, it is, therefore, better to have a case heard and determined on merit than to leave the Court with a shield of ‘victory’ obtained on mere technicalities”.

According to Justice Niki Tobi, “Good law, must have a human face; good law should not patronise technicalities that will give rise or room to undeserved victories in litigation. Good law should discourage technicalities… good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all”.
Also, in Balogun v E.O.C.B (Nigeria) Limited, it was noted that “the court is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice”.

Despite these assertions by the Nigerian judiciary at various levels, the courts especially the Supreme Court decisions seem to turn more on technicalities than merit.
Again, this will not be the first time a person who arguably lacked electoral merit will be given a judicial mandate into an elected office. Hope Uzodimma, Imo state governor also became governor after the result of the election, where Emeka Ihedioha of the Peoples’ Democratic Party (PDP) emerged as the winner with 273,404 votes, was overturned by the Supreme Court.

The Independent National Electoral Commission (INEC) declared him the winner, with Uche Nwosu as his closest rival with 190,364 votes, followed by Ifeanyi Araraume with 114,676 votes. However, Hope Uzodimma of the All Progressives Congress (APC), who came in fourth place with 96,458 votes, was declared the winner by the court after the votes from 388 polling units were added to his total votes. This brought Uzodimma’s total to 309,753 votes, while the votes of the other candidates remained unchanged. Even when Ihedioha of the PDP approached the apex court to review or reverse its January 14, 2020, ruling that nullified his initial victory in the election, the court refused. In fact, Justice Olukayode Ariwoola noted that “certainly, this court has no inherent power to grant what is being sought; it is beyond the powers of this court. There is no constitutional provision for this court to review its own judgment.”

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The court based this assertion on the Constitutional provision that “without prejudice to the powers of the president or a state with respect to the prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court”. It further based this on Order 8 Rule 16 of the Supreme Court Rules which states that “the court shall review any judgement once given and delivered by it save to correct any clerical mistake or some error arising from any clerical slip or omission, or to vary the judgement or order so as to give effect to its meaning or intention”.

“According to Olisa Agbakoba SAN, “There is a problem when everybody questions Supreme Court judgements”.
“The Supreme Court of Nigeria has become a bit unpredictable and a bit too technical, given the fact that the court is a policy court. A policy court is one which does not deal with technicalities.”

“Justice should not only be done but manifestly and undoubtedly seen to have been done”. This dictum as stated by the Lord Hewart, the then lord Chief Justice of England in 1924 has become an age-long guidance applied by lawyers and judges. And it is not that justice is only manifestly seen to be done when the judgement of the court conforms with the will of a majority of people but that “nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”.

Therefore, the court in the case Ahmed Lawan v Machina even where it had relied on the basis of a technical issue may have also interrogated whether such irregularity or technicality was so fundamental to the root of the case. If it were, the court may have also asked whether such an appeal allowed on such a basis will only bring a miscarriage of justice.
However, one must consider the role of lawyers in this. Perhaps, lawyers do not draft the right prayers or ask the court for the exact order that they want. It has often been said that it is what “the courts decide cases and serve justice based on the facts before them rather than what people think should be the likely outcome.”
Olisa Agbakoba SAN responding to this view is of the mind that the Supreme Court is a policy court and can engage its public policy jurisdiction to address the issues of technicalities.

“The Supreme Court is a policy court, and I do not think it is at that level the court should be denying the hearing of a case merely because, according to the Supreme Court, the person who brought it did not come by a proper procedure”.

Continuing, citing the example of the Naira redesign policy case, Agbakoba, SAN noted that the Supreme Court was wrong on the Central Bank of Nigeria case.
“When the states brought the case against the Federal Government, the proper cause of action was for the Supreme Court to throw it out, but they did not because being a policy court, they realised that the issue of lack of cash was a matter affecting every Nigerian. The Supreme Court invoked its public policy jurisdiction but overlooked the fact that it did not have jurisdiction and made the decision.”

In all of this, the stalwart position of legal stakeholders and the law itself is that the courts must work in the interest of justice when deciding cases. To do otherwise will be injuring the faith of the public in the last recourse of the common man.