‘Political matters have made Nigerian judiciary one of the worst in the world’  

Vocal advocate, Chief Robert Clarke (SAN) in the interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, examines the constitutionality of approaching the Supreme Court for a review of its judgment as well as the debate for restructuring and producing autochthonous constitution for Nigeria.

What is your view about the Supreme Court decision on Imo State governorship election?
As a lawyer, it would be difficult for you to have a view about a judgment when you have not had the privilege of reading the judgment. But I have had the privilege of listening to many commentators on the judgment. I have been privileged to appear in two television stations on this judgment. I am a bit conversant with all the facts of the case. I do not think that there is any reason to fault the judgment of the supreme court because the facts of the case was that certain evidence was laid at the tribunal and the tribunal admitted those documents on the basis that they have no evidential value.

When it got to the court of appeal, one of the judges faulted the decision of the tribunal, saying it should have looked at the documents. The judge said they did not evaluate the evidence on technical grounds. The Supreme Court preferred the dissenting judgment of the appeal court. The Supreme Court agreed to sit as an original court, which the law allows them to look at the evidence. And that was what they did. It would be difficult to fault their judgment because they had the opportunity of looking at all the figures that were being disputed and they decided solely on the figures.

But the figure threw up other issues. For instance, the total number of accredited voters became lower than the total number of votes cast?
Independent National Electoral Commission (INEC) is really at fault at that election tribunal. At the stage the petitioner brought that evidence, INEC on its own should have challenged it, rather than claiming that it is not relevant. What the petitioner is saying is that INEC as an umpire should not have nullified those votes. It was an indictment against INEC. INEC lawyer should have at that stage allowed the court to look at the document and challenge those figures. But they never did so. They were relying on technicalities – that the documents were dumbed on the tribunal, forgetting that documents speak for themselves. If at the stage the petitioner dropped those documents INEC did not challenge it, the Supreme Court now said we want to look at it since they are relevant. They looked at it and got those figures. You can’t challenge how they got those figures.  

Now the Peoples Democratic Party (PDP) has approached the Supreme Court praying that it reviews the decision. What is the constitutional basis for that?   
All over the world, where the common law is being practiced, the apex court allows people to review their judgment. In Nigeria also, the Nigerian Supreme Court allows people to come and review judgment. But not to challenge a judgment as if you are appealing against their judgment, because if they make the mistake to allow anybody to always come to the court to challenge their decisions, they would open a floodgate, where everybody will want to take advantage.  And that is why in Nigeria today, I don’t think there are more than three cases that have gone to the Supreme Court for review.  I am lucky I have done two of those cases in the history of the three that has returned to them. I am doing one presently. The apex court says we can come when it makes a mistake, acknowledging that they are not saints. They are mortals like us, but they gave conditions.

What are the conditions?
They said (1) if the decision was not based on the constitution, you could challenge them. (2) If have no jurisdiction to sit on any matter, you can challenge them. (3) If consequential orders of the court were made when they are functus officio, then you can go back. (4) If it is full of fraud or mistake, you can go back, but you must be able to show these things, if not they would not allow you. So the court allows people to come back. The doctrine is that the Supreme Court judgment is the final of all finals, but they will still allow you, but it is very rare all over the world and in Nigeria. I don’t think we have more than three cases in Nigeria. I did one three years ago and I lost it.  I am doing one now. The Supreme Court is highly tolerant to ask you to come back.

What is the basis for the review? Is it in the Supreme Court practice rules or the constitution?  
It is in the Supreme Court law and the constitution. The rules of the supreme court, which are made in consonance with the constitution are all there, that they can review their decisions, but they would not open a floodgate because once they do that, many people will be coming back. That is why in the history of the Supreme Court, it has only reviewed its decision two or three times.

The PDP is now contending that the person ordered to take over the reins of government was not a candidate of the All Progressives Congress (APC) as decided by the same Supreme Court earlier December?
You should ask yourself, was this canvassed at the lower tribunal? The Supreme Court is a court of an appeal from the lower court and it can only determine what was canvassed at the lower court. So, whoever is raising such now, is just raising a red flag over nothing. The question is: the point you are making now, did it arise from the appeal? If it didn’t arise from the appeal, then the Supreme Court has no right to look into it. It only has right to look at the issues canvassed at the tribunal and the court of appeal.

Can a party ask the Supreme Court to review its decision based on this prayer?
They cannot. They can only ask to review the fact before them, which they have determined. If that is a new fact, they cannot determine it because it did not arise from the judgment.  You can only ask them to look into matter that has arisen from their judgment.

If that were the case, where are the complainants going to start to canvass the new point, which borders on the eligibility of the candidate? Will they go back to the tribunal or to the court of appeal?
All those are pre-election matters. The law says you must have brought them up even before the elections, that if you do it before election and judgment has not been delivered, even if the elections were held, the result of your case will affect the election. So, the question of whether you are eligible is pre-election matters. It has nothing to do with the conduct of an election, which the constitution says solely belongs to a tribunal.

Election petition matters are time bound. Now, is the review not caught up with time allowed by law or will that demand commence on a fresh timing?
Many people are getting it wrong. The 180 days, which the law says a petition must be dispensed with relate only to the tribunal. That is the court that the law restricts its activities to 180 days. So when a tribunal is seized of a petition, from the day the petition is presented and to the date it will deliver judgment, it must not be more than 180 days. It has nothing to do with appeals. So, that rule only applies to tribunals that are handling election petition cases. The 180 days no longer applies once the matter proceeds to the appellate courts.

In your view, PDP has a whole lot of mountains to climb in asking for a review?
Not only the PDP. Anybody, who is asking the Supreme Court to review its decision, has a big mountain to climb. You must have a clear case that is based on the violation of constitutionality. For instance, are you going to say in Imo State, that the Supreme Court was not properly constituted?  No! They have seven members, which is what the constitution says. Would you say that that court has no right to listen to an appeal from a tribunal? No! What I will advise the PDP to do is to get a group of clever lawyers who will look at the judgment of the court. My mentor, the late Chief Fani-Kayode told me that no matter how brilliant a judge can be, if you read his judgment, you would see one mistake. So, let them get group of lawyers, maybe, by chance, they would find a mistake relating to those fundamental points I told you. Nobody knows, nothing tried, nothing gained and nothing ventured; nothing lost.

In reviewing the judiciary in 2019, what are the highpoints for you?
For me, political matters have made the judiciary in Nigeria to be one of the worst in the world to have litigation. We discovered that 80 percent of the cases, either in the Supreme Court, Court of Appeal or the High Court were all election or political matters, therefore denying the courts the privilege of doing other matters. Criminal, matrimonial, admiralty and others were relegated because of politics. So, one disadvantage in Nigeria today, which we have to look into, is how to curb the excesses of these politicians. They have ruined the judiciary.  I feel sorry for them. In Nigeria, once you lose and election, you go to petition.

And Nigerian Supreme Court judges are the most busy and overworked in the world, even though I have my reservation for that because it is a self-inflicted injury. The law, constitution or the electoral act never provided for the Supreme Court to handle gubernatorial cases and that is the problem they have today. The law says, only presidential election would go to the Supreme Court. During the tenure of the Chief Justice Katsina-Alu, he had a saga with the president of the court of appeal then, Justice Ayo Salami and they decided that all election petitions should now terminate at the Supreme Court. Senatorial elections that were never going there now go there.

Fortunately, we can change it. Let us have a constitutional court. A constitutional court that would be between the court of appeal and the supreme court in status, where eminent judges would sit to handle all constitutional or political matters would bypass the court of appeal and the supreme court and go to it. Let that court deal with election matters and allow the normal court to deal with their duties. Another thing I found out is that during the election petitions, the judiciary is partially closed. Why? Because they are moving judges from different states on election petition duties, allowing so many other cases in their courts to suffer. Why not bring retired judges and justices to handle the tribunal so that you don’t disrupt the smooth running of the courts.

There are people who argue that we need to create special court for electoral offenders and corruption. Don’t you think appointing more judges would go a long way in addressing the issue?
I don’t believe in the special court thing. We already have divisions within our courts. The general courts are okay. Each judicial division of a state high court has courts for different cases. For instance, in Lagos there are about eight judges that handle criminal cases. So you don’t need to create another court because the judiciary in itself has already created the special courts. There are about four judges who are on matrimonial matters and admiralty courts are also there. It is only that politics since 1999 has disrupted everything in Nigeria. We must find a solution to that because it is destroying Nigeria and it is a cankerworm. We must do something about it.

The judiciary is highly revered, but would you consider the circumstances that resulted in the resignation of the former Chief Justice of Nigeria, Walter Onnoghen, especially the role of an administrative tribunal was self-inflicted?
He knows why he resigned and we leave that to him. I will not give opinion about the circumstances because it is neither here nor there. It depends on who is saying what and where the fellow’s interest lies.

Are you saying that the judiciary is politicized?
In fact the judiciary of every civilized country is politicized. Are you saying the American judiciary today is not politicized? It is and you cannot run away from that. However, it is politics within the law, not partisan politics. It must not be smeared with partisan politics. Politics is a social pattern of life. Every aspect of our life is politicized.

Would you subscribe to the idea that we unbundle the Supreme Court, such that they sit in different geo-political zones?
There is only one Supreme Court. They can move to locations because in the past, they moved. What I am saying is that we have created a situation whereby every case goes to the Supreme Court. We should have a procedure that terminates certain cases at the appeal court level. For instance, if the law is amended to say where two consecutive courts have already made profound findings of fact, you cannot go to the Supreme Court. Today, the Supreme Court will tell you, we cannot set aside any judgment that two lower courts have already agreed with.

We don’t want to touch it because if the high court agrees with you on point of fact and the court of appeal agrees with you, the supreme court will just tell you we will take our hands away. So why not by law limit appeals to the appeal court? For instance, you go to the high court and say he has duped me. The court says he didn’t dupe you. You go to the court of appeal and say the same and the court says you are not duped, trust Nigerians, the fellow will be proceeding to the supreme court. When these two courts have determined the facts, you have no need to go to the Supreme Court.  

There is this restructuring debate. People have been agitating that we should find a solution to our myriads of problems. Some says let us set up a constitutional conference to develop autochthonous constitution and go back to regional government. Recently, the Southwest region has come up with a security outfit calledAmetokun to secure their region. What is your opinion on that?
We have to restructure Nigeria. That is quite clear. And to enable us to restructure Nigeria, we cannot rely on the 1999 constitution because the people who are sitting on the 1999 constitution are the same people. At the end of the day, the document for restructuring is going to go before them.

Are you telling me that senators will agree to abolish the senate? Are you telling me that governors will abolish getting security votes? These are people who will not do anything to tamper with it. We need a constitutional body. Former president Goodluck Jonathan did one in 2014. I said it at that time that that conference will fail and it failed. Jonathan failed to create a legal background to enable whatever decision the conference comes out with to become law. So my advise is that; if president Muhammadu Buhari wants to set up a constitutional conference, he must first send to the National Assembly a bill that he intends to invite all shades of opinions to discuss about restructuring; that once they give me their report, I will send it to a referendum. I want you to pass a bill that once the referendum is taken, it becomes the law for you to certify. By then, you have tied the hands of the National Assembly because they don’t know what will come out of it. There must be a legal basis whereby the decision of that conference will become law by virtue of the law they are to pass.

So you don’t believe the president can pick from what Jonathan had done?
Jonathan never laid a legal foundation for it. That document is in the archives and it will be there forever. Although, it can be revalidated! When Buhari sets up a new one, they can borrow from it and adopt some of its recommendations, but first, that conference never talked about restructuring. They were talking about amending the constitution. I always say it that the 1999 constitution is a rotten egg. It can never be cured by any amendment. It is very deficient and it is not the voice of the people. It is the voice of the Army, which was imposed on us.

Let us restructure and get Nigeria into fewer states than we have. What are we doing with 36 states? Nigeria is not up to one-tenth of the size of America and they have only 50 states. America as a state is a sub-continent by itself. How can we manage 36? Where is the money? We have to sit down and reduce the number of states and forget about these things that are based on ethnicity. It will never grow.  Let us have eight geopolitical zones where a Kanuri man in the North East would be in the same house of assembly with the Akwa Ibom or Rivers man. Let us find something out of the rot of the 1999 constitution.