THE SUPREME COURT - ENGAGING DEFINING MOMENTS
A FOREIGN PERSPECTIVE ON ANAMBRA STATE

On 24 October 2007, the Supreme Court, interpreting, amongst other provisions, section 34(2) of the Electoral Act 2006, nullified the outcome of the April 2007 governorship elections in Rivers State by declaring that Rotimi Amaechi, then the outgoing Speaker of the House of Assembly and the winner of the PDP governorship primaries, was the validly elected governor of the state in place of Celestine Omehia, the candidate who, in fact, won, was declared winner, sworn in and acted as the governor of the state until this decision. Between primaries and election, Amaechi’s name had been substituted with that of Omehia on the ballot upon premises that Amaechi has now successfully challenged. The court has indicated that it will give its decision on 18 January 2008. Those reasons are eagerly awaited, following which there will, of course, be detailed analysis by a growing rank of commentators.

This is the court’s third major intervention in the April governorship elections, the first occurring in the Ararume against Charles Ugwuh case pertaining to the Imo State gubernatorial election and the second in the Anambra State elections upon which this paper is based. To complete the picture, the elections of Saidu Usman Dakingari and Ibrahim Idris, the erstwhile governors of Kebbi and Kogi States respectively, have been correspondingly annulled by Election Tribunals. Both decisions are being challenged in the Court of Appeal.

The significance of these interventions, prompted by appeals to it, is that now, more than ever in the development of Nigeria’s fledging jurisprudence, the role that the Judiciary is playing in the defining the investiture of political power has never been more prominent. Clearly, results and swearings-in, previously viewed as political foreclosure of electoral exercises, no longer offer that comfort if founded upon fragile legal premises. The courts have now assumed greater influence in the ultimate destination of political power especially in the face of judicial challenge such that greater care must now, of necessity, be taken by those involved in the electoral arena, both as participants and organisers. It is for that reason that the basis of judicial intervention must be more fully appreciated by those that are affected by its outcome. The Anambra State situation is a classic illustration of this intervention and such a desirable example, demonstrated by the considerable analysis of its import, that further critical appraisal of its circumstances remains overwhelmingly important. How, then, has this come about?

On 14 June 2007, the Supreme Court delivered its reserved judgement in the proceedings brought by the Anambra State Governor, Peter Obi and the Independent National Electoral Commission and others. This was an appeal against the judgment of the Court of Appeal, dismissing an appeal from the Federal High Court in which the Court had declined jurisdiction in an action seeking, inter alia, declaratory reliefs that the tenure of office of a Governor, having regard to section 180(2) of the 1999 Constitution begins to run when he takes the Oath of Allegiance and Oath of Office. In the proceedings at first instance, the Plaintiff sought a number of other reliefs including injunctive relief preventing INEC and others from conducting any elections or participating in any elections.

Those proceedings were not determined before the 14 April 2007 gubernatorial elections in that state. Those elections saw the emergence of Andy Uba as Governor. He was consequently sworn in on 29 May 2007. On 13 July 2007, the decision to which reference has been made was delivered. In reaching that decision, the Supreme Court considered and interpreted several sections of the 1999 Constitution; the Electoral Act and the Supreme Court Act. It came to the conclusion that Obi had not exhausted his electoral mandate and that INEC ought not to have conducted the April 14th governorship election of the state. The court decided to set aside the outcome of the April 14th elections and to reinstate, in post, Peter Obi as Governor of the State. That is the position that remains in relation to the leadership of that state.

This decision, delivered by the Supreme Court in its role as the final appellate court, would have been considered by many to have brought about finality to the determination of the electoral issues in relation to the gubernatorial exercise in Anambra state. Andy Uba, as he is entitled to, felt otherwise. Using, amongst others, the provisions of section 6(6) (b) of the 1999 Constitution, he seeks to bring those circumstances before the Supreme Court. He is seeking, amongst others, an order setting aside the judgment that the Court itself gave on 14 June 2007 and also seeks, amongst other reliefs, an order that the application be heard by a panel other than that which gave the said judgment and orders. Uba alleges that the orders made by the Court were without jurisdiction and that, quite critically, the panel of the Supreme Court that heard those proceedings was improperly constituted as one of the learned Justices, Honourable Justice P O Aderemi, had sat on the hearing of the appeal as one of three Judges of the Court of Appeal, Electoral Tribunal, Enugu Division (when His Lordship was a Justice of the Court of Appeal) in the case between Chris Ngige – who had been declared victorious in the 2003 elections and had served as governor of the state till that hearing - and Obi in which the Court of Appeal held INEC had wrongly upheld Ngige as victorious in those elections. That decision led to the reinstatement of Obi as governor on 17 March 2006. This allegation of bias is founded on the premise that His Lordship, Justice Aderemi, had full knowledge of the facts of Obi’s case in circumstances that would not have guaranteed him, Uba, a fair hearing and this situation therefore created and led to a serious miscarriage of justice evident in the outcome of the decision of 14 June 2007.

There is, understandably, a high degree of speculation about the finer details upon which this application is based. Some of the premises upon which these views are expressed are those that have emerged from the public domain. The motion before the Supreme Court, doubtless, comprises a wide variety of premises and legal arguments. Fuller ventilation of the key issues in relation to this application is circumscribed for two main reasons. First, the process by which the application is determined is a matter for the Supreme Court alone. In consequence, only the Supreme Court can, at the appropriate time, comment, as it considers it appropriate, in determining the outcome of that application. Second, there is an innate responsibility that pending proceedings import in that they are, for all intents, sub judice. This situation limits the range of permissible comment to, understandably, the framework saved by the appropriate sections of the 1999 Constitution guaranteeing free speech. As is common knowledge, whilst a case is under consideration, its details cannot be disclosed otherwise. In consequence, no analysis of the actual case before the Court can be legitimately undertaken or intended.

However, there are two key aspects central to a clearer appreciation of what the proceedings are all about that fall for further consideration especially given the similarity of the occurrence of issues raised in the case, elsewhere. These are issues of considerable public interest and policy, the purport of which must concern all those keen to see the development of democracy in Nigeria, and with it, the evolution of the judiciary as a cornerstone of such societal progress. The first is the novelty of the highest court in the land being asked to review its own decision on developments first arising in that court. The second relates to an allegation of bias imputed to one of its judges, raised after it has handed down its decision. Both developments are unprecedented and, as far as is known, neither is an experience that has occurred at that level. It is these features that not only create but heighten the uniqueness of these proceedings and with it, the necessity for clearer appreciation of its significance in the body of law that would emerge from its outcome.

Rightly, this case has attracted attention and sustained commentaries by lawyers and non-lawyers alike. While some of the comments have been imbued with incisive thought and analysis, others have, clearly, been tainted by their political leaning. Unique as this development is in Nigeria, there are accomplished illustrations of similar circumstances elsewhere. Of particular significance is the example of its occurrence in the United Kingdom, this being, historically, a legal jurisdiction of comparable composition. The illustration of this kind of situation in English law demonstrates, in very instructive terms, the critical significance that this type of development brings about in the transmutation of the judiciary in any country. This situation occurred in the very highly publicised case involving General Augusto Pinochet Ugarte, the former Military dictator of Chile from 11 September 1973 to 11 March 1990. This case was unique and interesting for the publicity that it attracted and the enormity of the legal issues that arose within it including issues similar to those occurring now in Nigeria.

In October 1998, two international warrants of arrest issued by a Spanish Judge, led to the arrest of General Pinochet in London where he had visited from Chile to receive medical treatment. For reasons to which this article will return, the arrest could not have been acted upon by the Chilean government if Pinochet remained in Chile. This arrest triggered a highly controversial sequence of events, which was to raise significant issues in international law. The warrant alleged that Pinochet was responsible for the torture and murder of thousands of Spanish citizens during the Chilean “Dirty War” in the 1970’s and early 80’s. It alleged that at least 3,000 people were said to have disappeared or have been killed under his orders, without any of those people having been involved in any form of judicial proceedings to determine their guilt. The arrest, which took place on 23 October 1998, led to an immediate application by Pinochet to set aside both warrants upon the premise that, as a former head of state and consistent with the dictates of international law, he was entitled to immunity from prosecution for any action he took whilst head of state of a sovereign nation.

The political issues engaged by this development were enormous as was demonstrated by reactions outside the courtroom. The Chilean Government, in response, suspended official visits and meetings with British officials. In the UK, there was divided response. Whilst many considered the dictators like Pinochet should have to pay for their crimes, others took a different view. The doctrine of immunity in International Law is well known and was loudly asserted by people as influential as the former Prime Minister, Margaret Thatcher who called for his immediate release. A former Conservative Home Secretary, Kenneth Clarke, suggested that it would be bad for the democratic environment in Chile and for international relations with Chile, a friend of Britain.

Within the courtroom, the legal issues were even more engaging. The genesis of the problems emanated from the international warrants of arrest issued in Spain to enable his extradition from the United Kingdom to take place. These derived their legitimacy in Spanish law following a decision by the Spanish Supreme Court that the courts in Spain had jurisdiction to try him. It was to give effect to the extradition requests that the London Metropolitan Stipendiary Magistrate issued the two provisional warrants dated 16th and 23rd October 1998, pursuant to section 8(1) (b) of the United Kingdom’s Extradition Act 1989. He immediately replied to the Queen’s Bench Divisional Court (the appropriate division of the High Court) to quash the warrants. The first warrant of 16 October 1998 was squashed. The second warrant of 23 October 1998 was quashed by an order of the Divisional Court of the Queens Bench Division made up of three eminent Judges, including the Chief Justice. However, the quashing of the second warrant was stayed to enable an appeal to the House of Lords on a question as defined by the Divisional court namely, as to the proper interpretation and scope of the immunity enjoyed by a former Head of State from the arrest and extradition proceedings in the United Kingdom in respect of acts committed while he was head of state. All these steps were taken within defined, statutorily-provided procedure.

The matter proceeded to the House of Lords with amazing despatch. It was heard on the 4th, 5th 9th-12th November 1998 by a Committee of 5 Law Lords. Before the hearing of that appeal, Amnesty International, one of two Human Rights bodies and three individuals, petitioned for leave to intervene in the appeal. The House of Lords granted the leave sought. At this stage, the nature and extent of public interest was now overwhelming, not only within the United Kingdom, but worldwide. The issues of public interest were considerable. In this regard, three fundamental positions emerged. There were those that believed that the conduct of Pinochet had been highly contentious and emotive and that it was necessary for him to answer for offences committed whilst in post. There were many others who were also anxious to bring him to trial other than Chile where, given his previous position and subsisting influence, a fair trial may not have been possible. And there were others who believed that he was the “saviour of Chile” and that whatever the situation was, it was a matter for Chile to sort internally and not for third parties outside Chile to seek this form of intervention in Chilean politics by seeking to have him tried outside that country.

On 25 November 1998, the House of Lords handed down its decision. The appeal was allowed by a majority of 3:2 and the House of Lords restored the 2nd warrant of 23 October 1998. Of those who comprised the panel, Lord Nicholls and Lord Steyn each delivered speeches holding that Pinochet was not entitled to immunity. Lord Hoffman agreed with their speeches, but did not give separate reasons for allowing the appeal. Lord Slynn and Lord Lloyd dissented, each giving separate reasons for his position. As a consequence of this decision, Pinochet was now required to await, in the United Kingdom, the decision of the then Home Secretary as to whether or not they would authorise the continuation of the extradition proceedings. The Secretary of State had until 11 December 1998 to make that decision. In the intervening period, he was required to invite representations from anyone interested in doing so, such representations to reach him by 30 November 1998.

It was at this stage that one of the most significant features of the Pinochet litigation emerged. Controversial as it was, this centred on the antecedents of one of the Law Lords, Lord Hoffman. First, unbeknown to many of those involved in the proceedings, Lady Hoffman, Lord Hoffman’s wife, had been employed at the International Secretariat of Amnesty International since 1977. The sequence by which this information became available, is something of some interest. The representations to the Home Secretary were made on 30 November 1998 drawing attention to Lady Hoffman’s position at the time. This position was affirmed and clarified by Amnesty International in confirming that she had always been employed in administrative positions primarily in their department dealing with press and publications. Amnesty International confirmed that she provided administrative support to the programme including some reception duties, but had never, at any time, been consulted or otherwise involved in any substantive discussions or decisions by Amnesty International including those in relation to the Pinochet case. By 7 December 1998, the position had changed, quite significantly. Assertions were made at this stage, that Lord Hoffman was a director of Amnesty International Charitable Trust. The questions were put to Amnesty International who then confirmed that Lord Hoffman was a Director and Chairperson of Amnesty International Limited (AICL), itself a registered Charity incorporated to undertake those aspects of Amnesty International Work which were charitable under United Kingdom Law. They also confirmed that he was neither employed nor remunerated by AICL or AIL. They confirmed that neither Lord Hoffman nor his wife had been consulted and they had had no other role in Amnesty’s International’s intervention in the case of Pinochet. They confirmed that Lord Hoffman, at that time, was not a member of Amnesty International. They explained that the only involvement that he had was in relation to a fund raising appeal for a new building for Amnesty International UK. In doing so, he was able to assist in procuring the involvement of other senior legal officers including the Lord Chief Justice, Lord Bingham. Finally, they confirmed that whilst at the Bar, in 1982, Lord Hoffman, had made one appearance for Amnesty International UK in the Chancery Division of the High Court of Justice.

Given this development, Pinochet returned to the House of Lords by way of a petition. The position in relation to appealing to the House of Lords is regulated by statute and subject to statutory restrictions. The legal framework includes the Administration of Justice (Appeals) Act 1934; the Administration of Justice Act 1960; the Administration of Justice Act 1969; the Judicature (Northern Ireland) Act 1978 (for Northern Ireland); the Court of Sessions Act 1988 (for Scotland) and the Access to Justice Act 1999. It is indisputably trite law in England that every applicant for leave to appeal must comply with the statutory requirements before the application can be considered by the House. Additionally, the Human Rights Act 1988 applies to the House in its judicial capacity but not confer any general right of appeal to the House of Lords, or any right of appeal in addition to or superseding any right of appeal provided for in Acts passed before the coming into force of that Act. Ordinarily therefore, there is no other means by which an appeal can be entertained by the House of Lords.

In argument before the House of Lords in Pinochet, the Law Lords; the parties and all counsel accepted that there was no exact precedent by which the House of Lords could have been approached on this subject. It was contended, conceded and accepted by all the parties, despite the admitted absence of precedent, that the House of Lords must have jurisdiction to set aside its own orders where they have been incorrectly made since there is no other Court which could correct such impropriety. This was the contention advanced on behalf of Pinochet imbuing the court with power to revoke its earlier order. In the lead judgment, Lord Browne-Wilkinson accepts that the concession was rightly made by the parties both in principle and on authority. In doing that, he said:

“In principle, it must be that your Lordships, as the ultimate Court of Appeal, have power to correct any injustice caused by an earlier order of this house. There is no relevant statutory limitation on the jurisdiction of the house in this regard and therefore its inherent jurisdiction remains unfettered ....”

Lord Browne Wilkinson was at pains to state that the House of Lords will not reopen any appeal save in a circumstance where, through no fault of the party, he/she has been subjected to an unfair procedure. This position emanated, therefore, from the quite difficult considerations about which the Appellant in that case complained. First, the question as to the composition of the panel arose, for the first time, in the House of Lords. Given its position in the hierarchy, it is clear that no appeal against that issue could legitimately flow to any higher court because, there is, in fact, none in existence. Second, there was no opportunity for any of the parties to have addressed the issues at all before the Court. Third, this position emerged, very much after the decision was handed down. What is crucial here is not so much the manner in which the House of Lords dealt with the actual complaint when presented with it, but the basis upon which it felt that there was a necessity to revisit its initial intervention and resolution of the issues. This position is steeped essentially in the recognition of the importance of public confidence in the judiciary and was based, clearly, on a matter of the widest possible public interest. The House of Lords sits at the highest Court in the United Kingdom. Never before had any one of them been accused of any form of bias and clearly, no procedure existed for an appeal or intervention of this kind. The British Constitution is not a written one, but rather, uniquely, a collection, mostly unwritten and therefore inherently flexible, of customs, rules and conventions. The British Constitution is based on a long tradition of the Rule of Law and it is this maturity and inherent flexibility that made it possible for the Law Lords to fashion the new procedure that it followed. It directed and constituted, a new panel of five Judges to hear arguments concerning an issue that had been raised in relation to one of them. By doing this, they effectively modified the constitution by recognising that even they themselves, the Law Lords, were not above the legal system, over which they preside.

At the base of every allegation of the presence of bias, critical issues of public confidence in the judiciary are raised. The necessity for public confidence in the administration of justice cannot be understated. Lord Denning in Metropolitan Properties Co (FGC) –v- Lannon [1969] 1QB577 observed that:

“Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking “the Judge was biased”. The joint judgement in R -v- Watson ex parte Armstrong stated that “it is of fundamental importance that the public should have confidence in the administration of justice. If fair minded people reasonably apprehend or suspect that the Tribunal has misjudged the case, they cannot have confidence in a decision”.

In Webb v R (1993)181CLR 41, Mason, CJ and McHugh, J gave force to this position when they said:

“The premise upon which the decision in this Court is based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts the test if the Court adopts the test that reflects the action of the ordinary reasonable member of the public to the irregularity in question”

These principles were all neatly captured in the famous dictum of Lord Hewart in R –v- Sussex Judges, ex parte McCarthy [1924] KB 256 when he said famously, that:

“.... of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”

All these authorities clearly recognise that allegations of bias go to the very root of integrity not only of the Judges, but of the judicial system itself, such that any challenge, however bleak, must be given a thorough, comprehensive and dispassionate airing and that a judiciary approached, uniquely, with this situation is compelled, in the wider public interest, to see that considered reflection is applied in the determination of any such complaint.

Allegations of bias are not lightly made and as such, in developed jurisdictions like the United Kingdom, a body of law of common appreciation has since developed. The law in the United Kingdom is fairly straightforward. Usually, the allegation is based on what is sometimes referred to as “interest bias” or “apparent bias”. Interest bias arises where the Judge has an interest in the outcome of any litigation. In that situation, the disqualification is automatic. A Judge will be disqualified if he has any pecuniary or proprietary interest in the litigation save where this is of a de minimis proportion (Locabail Body (UK) Limited –v- Bayfield Properties [2000] IRLR 96).

This concept was, by the Pinochet case, extended beyond pecuniary or proprietary interest. The rationale is that a man cannot be a judge in his own Court and therefore, in those circumstances, it may extend beyond purely financial or economical consideration. Apparent bias however, is somewhat different. Again the rationale is not only similar to that which precludes interest bias but also extended by the related principle that justice must be seen to be done. Central to the development of this principle is the all-important necessity to enshrine public confidence in the system of administration of Justice. The public interest is paramount and, as Lord Steyn observed in Lawal-v- Northern Spirit Ltd [2003] ICR 836

“public perception of the possibility of unconscious bias is the key”.

The basic test would be whether a fair minded and informed observer, having considered the facts, would conclude that there is a real possibility that the Tribunal was biased.

Pinochet extended the parameters of bias substantially. In the words of Lord Browne- Wilkinson in Pinochet:
“.... the rationale of the whole rule is that a man cannot be a judge in his own Court. In civil litigation, the matters in issue will normally have an economic impact: therefore a judge is automatically disqualified if he stands to make a financial gain as a consequence of his own decision of the case. But if, as in the present case, the matter and issue does not relate to money or economic advantage, but is concerned with the promotion of a cause, the rationale disqualifying a judge applies just as much if the judge’s decision will lead to the promotion of a cause in which the judge is involved together with one of the parties ....”

He continued by stating:-

“if the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a Judge who is involved, whether personally or as a director of a company, in promoting the same causes in the same organisation as is a party to the suit ....”

How the application before the Supreme Court is determined is a matter for that Court. Ultimately, the Learned Justices will determine those issues before them in accordance with Nigerian Law and will be guided by influences and perceptions that they have gathered from their distinguished careers. The Supreme Court is sufficiently experienced to deal with, amongst key arguments that will confront them in this particularly difficult case, many of the issues that will emerge including those that continue to be forcefully ventilated in the court of public opinion. It is for the public good that there is a strong and proactive judiciary. It is for this reason that the importance of these proceedings cannot be understated. So also is the importance of comments that are made in the public domain. However, what undermines the quality of some of the comments that have been made since the proceedings were launched is the keenness with which many have tried to abort its outcome even before the judicial challenge takes root. This posture, coming from, evidently, several accomplished lawyers, causes concern for the contemporary development of our law, especially with the impetus given to the Rule of Law and independence of the judiciary by the government of President Yar’ Adua. Leaving the political issues to one side – as must be the case in the appropriate legal environment – this case presents the Supreme Court with an ideal, engaging and desirable framework to extend its intervention in the clarification of quite complex legal issues which contemporary Nigeria has to deal with if its laws (and lawyers) are to attain modern day noteworthiness in world jurisprudence. The Supreme Court must be permitted, without distraction, to deal with a case that, in administrative law, will no doubt mark a memorable watershed in the development of the rule of law in Nigeria in circumstances that Funke Aboyade (This Day, 10th August 2007) has called “A Defining Moment” for our Supreme Court.