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Nigeria Supreme Court and Judicial Review in the Imo Governorship Election

By Harry Fanon

THE NIGERIAN SUPREME COURT AND JUDICIAL REVIEW IN IMO STATE GOVERNORSHIP ELECTION PETITION (EMEKA IHEDIOHA VS. HOPE UZODINMA). — -By Harry Fanon (hfanon@yahoo.com)

Election petitions are timely and enjoy special protection. Election petitions are sui generis. They are in a class of their own and because of this; they are special, peculiar and unique in nature. The Supreme Court per se also shares in sui generis because it is an absolute entity. In their absoluteness, they cannot be compared to any other as there is nothing equivalent to or above her. It is needless to assert that the Supreme Court is a sui generis authority.

Just before the Supreme Court judgment in the Imo governorship election petition, 20th January, I had written “A Meta-analysis of Imo Guber election petition before the Supreme Court.” This was fairly circulated both in print and online media. In the said publication I pointed out that there will be precedence. Indeed, the Supreme Court spoke in her transcendental manner of finite elocution.

The position of this article is that the Apex Court anywhere in the world is capable of erring. Ihedioha and the Peoples Democratic Party PDP approaching the Supreme Court requesting for a Judicial Review are within their rights if and only if they satisfy the grounds for a Judicial Review. Did Chief Emeka Ihedioha and PDP satisfy the grounds for a Judicial Review? This is the focus of this article.

Judicial Review is a checks and balance instrument evidenced by separation of powers. It is an administrative convenient mechanism used by and for public bodies to correct and eradicate bad or mistaken decisions so as to avoid bad precedence. The judiciary and/or Supreme Court are a public body. For this reason any aggrieved person can approach the court and indeed the Supreme Court requesting a review of her decision.

Any bad law or perceived decision is often a cocktail for anarchy. No wonder in the history of Imo state, the Owerri capital has witnessed series of mass protest following the Supreme Court decision asserting Senator Hope Uzodimma as the authentic governor.

However, the1999 constitution and Electoral Act 2010 (as amended) did not expressly prescribe the use of Judicial Review in an election petition.
By the common law doctrine of stare decisis, the Supreme Court is bound by her previous decision. The Supreme Court has the power to over-rule itself (and has done so in the past) for it is better to admit an error than persevere in error (confer Adegoke Motors vs. Adesanya, 1989 13 NWLR, pt.109, 250 at page 275). It was in this landmark case that Justice Oputa averred that Supreme Court Justices are final not because they are infallible but because they are final.

The point for consideration is whether the Supreme Court Justices are capable of making mistakes since in their finality they are finite in infiniteness.

For a complainant to be successful with the Judicial Review, he would need to satisfy the substantive grounds for judicial review which are illegality, irrationality, proportionality, procedural impropriety/unfairness, and unreasonableness in fettering of discretion.

A decision can be overturned or reversed on the ground of illegality if the decision-maker, in this case the Supreme Court, did not have the legal power to make the decision by declaring Senator Hope Uzodinma the governorship winner. Illegality covers the excess use of power, relevant/irrelevant considerations in adjudicating the petition.

A decision can be reversed on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased.

A decision can be also reversed on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it.

On the other hand, irrationality is also concerned with the substantive content of a government decision or the Supreme Court in our material case. Irrationality focuses on the political or moral rather than (in the strict sense) legal character of the decision.

Proportionality grounds for Judicial Review can be explained as a constitutional construct that requires the Supreme Court to accept that the boundaries of moral superstructures are confined/discernibly less broad in substantive terms than those that apply in respect of irrationality grounds.

These are a very high bar to get over, and it is rare for the court to grant judicial review on these bases. Any law professional who frivolously brings an action in Judicial Review is often struck off.

The consequences for bringing frivolous Judicial Review can be indeed heavy. It is therefore proper for Ihedioha’s team of lawyers to be mindful of this.

Imo state citizens are circumspect as to how the Supreme Court will be persuaded to think. As the court pleases.

Harry Fanon is a philosopher and a jurisprudence lawyer writing from his Ahiazu Cave.

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