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Author: Chukwudi Nwokoye Esq.
Posted to the web: 5/8/2009 3:42:12 PM

WITHDRAWAL OF ANDY UBA'S SUPREME COURT CASE
 
By Chukwudi Nwokoye
 
 
I received the news of withdrawal of Andy Ubaâ's case against Governor Peter Obi of Anambra State at the Supreme Court with mixed feeling. I was relieved that the shame and black-eye that would have been visited on the Supreme Court if the justices had kowtowed to one single personâ's whims and caprices. I was also relieved that the case would be behind us as Anambra prepares for the next election.
However, I was also concerned that since the case was not decided upon by the Supreme Court even though the matter has been previously decided; the applicant, Andy Uba, could come back later when he sees a weak link at the Supreme Court bench, and re-prosecute the case. He could recycle the case anytime he sees fit and keep the matter alive thereby causing some stirs to the psyche of the already traumatize citizens of Anambra State. For starters, I wish to give a brief run down of the events leading to the latest state of affairs. A governorship election was conducted in Anambra State in April 2003. Dr. Chris Ngige of Peoples Democratic Party (PDP) was declared the winner of the election by virtue of the massive rigging supervised by the discredited kingmaker, Chief Chris Uba. Peter Obi, the flag-bearer of APGA, challenged the monumental fraud in the Election Petition Tribunal. As Mr. Obiâ's challenge at the tribunal was going on, Dr. Ngige was sworn-in as governor of the state on the 29th day of May, 2003. Mr. Obi fought for the return of his mandate for 3 years and later won at the tribunal. Dr. Ngige appealed to the Court of Appeal, but the latter court upheld the decision of the tribunal on 15th March 2006 to the effect that it was Mr. Obi and not Dr. Ngige was the winner of the election since Obi scored the highest number of votes. After winning at the Court of Appeal, Peter Obi was sworn in on the 17th day of March, 2006. As Dr. Ngige had ruled for 3 years, leaving barely 1 year for Peter Obi, the latter headed to the Federal High Court Enugu, for interpretation of Section 180 (2) of the Constitution with regard to his tenure of office. Section 180 (2) in a nutshell stated that a governorâ's term of office starts when he takes an oath of office and oath of allegiance. The Federal High Court declined jurisdiction and struck out his case. He appealed to the Court of Appeal, but the latter court also declined jurisdiction. Obi headed to the Supreme Court and on the 14th day of June 2007, the Supreme Court gave a ground-breaking judgment declaring that Obiâ's tenure was still subsisting and that his tenure ends on the 17th day of March, 2010, and not on March 17, 2007; having been sworn in on the 17th day of March 2006. It should be noted that as Obiâ's appeal to the Supreme Court was going on, Maurice Iwu-led INEC hurriedly conducted another sham governorship election in the state and installed Andy Uba on 29th May, 2007. When on 14th June, 2007 the Supreme Court found for Gov. Obi, the apex court ordered Andy Uba to vacate the Anambra State Government House immediately for Gov Obi as the latter tenure has not ended. According to Tabai JSC (Justice of the Supreme Court): “The decision that the appellant, Mr. Peter Obi, is still the governor; and remains the governor until March 17, 2010; supersedes, cancels and nullifies the purported election or inauguration of the fifth respondent (Andy Uba) as the governor of Anambra state. The fifth respondent was therefore not the appellantâ's successor in office to have taken the oath of office within the meaning of Section 180 (1)(a) of the Constitution”. The Supreme Courtâ's decision was express and uncomplicated. By virtue of that decision, there was no vacancy at the Anambra Government House at the time of the said election. That being the case, the so-called election of Mr. Uba was an exercise in futility. There was this notion that Andy Uba is a governor-in-waiting. Wherever that notion came from, there is nowhere in our constititution that a provision was made for governor-in-waiting. So the delusion of Mr. Uba and his crowd that he is a governor-in-waiting is not know in our law and therefore unconstitutional. However, Andy Uba, not taking ‘no’ for an answer headed to the Supreme Court for it to reverse itself. On February 2008, the Supreme Court dismissed his application for reversal. Again, not satisfied with the dismissal of his case, and desperate to rule Anambra State, Andy Uba went back to the Supreme Court to have it reverse itself. Many people thought the case would not even be listed or made it through the Supreme Court Registry. However, we were proved wrong again, and we were forced to believe that even in the Supreme Court, everything is possible. The case was listed and both parties were ordered to file their briefs of argument in court, which was done. On the day the application for reversal came up for hearing, counsel to Gov Obi, Dr. Onyechi Ikpeazu filed a preliminary objective bringing to the notice of the court that the matter before the court has already be dealt with by the court and has already been dismissed by the court. That being the case, he argued, the Supreme Court is barred from entertaining the matter again as the parties are caught up by the principle of estoppel par rem judicatam-the principle of law that a party cannot bring an action to court which same matter has been previously decided by the court. The decision of the court is binding to all parties to the case and no party, his privy or assigns could come back to court on that same issue. In other words, the principle of law states that there has to be an end to litigation. The Supreme Court adjourned the matter sine die and advised the parties to be prepared to address seven justices of the Supreme Court. This was only last week. But on the 7th May, 2009; Andy Ubaâ's counsel, Mr Taiwo Abe, applied to withdraw the case, under Order 8 Rule 6 of the Supreme Court Rules which stated that an appellant might at any time before the appeal was called, file a notice of discontinuance at the Registry of the apex court, a notice that he did not intend to prosecute the appeal. The options available to the Supreme Court are either to strike the case out, or the applicant ordered to continue with the case or alternatively dismiss the case. If the case is struck out, the applicant, Andy Uba, can wake up anytime and feel like going back to court to re-litigate the matter. In that case, his opponents are under his whims and caprices and the justices have to be ready to entertain his antics anytime he feels like exercising his so-called right to court. Also, the flood-gate would be opened for trouble-makers to come to court and withdraw anytime they want. The court would be a forum for disgruntled and frustrated individuals to bring frivolous and vexatious cases to court on the pretext that they are exercising their constitutional rights. The next option is for the court to compel the party to continue with his case even though through words and actions, the party has already signaled that he is no longer interested in the case as a result of the weakness or outrageous nature of his case. For the court to compel a party to continue with a matter he is no longer interested in would amount to trying to force a he goat to mate. It would not work. In the words of Justice Obiesie in the case of Nnebedum & Ors Vs. Onyesoh (Suit Number AA/24/88) where a similar issue was before him: “In the exercise of my discretion, the case will not be struck out in order to allow the plaintiffs to retain the right of bringing another action when their case has been demolished. On the other hand, justice would not be achieved by compelling the plaintiffs to continue with the case in which they have affirmed they want to withdraw as evidence subsequently given in their absence will not be properly evaluated and quantified.” The last and the best option for the court is to dismiss the case with substantial costs to act as a deterrent to others that would think that they would use the Supreme Court to play a game of chicken. This matter has dragged on for a long time and has reached an advanced stage. Briefs have been filed and exchanged between the parties and the five justices of the Supreme Court have been addressed. On 22nd April, 2009, when the case was called up, the case was adjourned indefinitely and the parties were told that they should be prepared to address the full court of seven justices. That was the position until yesterday 7th May, 2009. My hunch is that the Uba Team must have seen an impending fiasco that was destined to befall his latest bid to have the court reverse itself. The option left for the court is to dismiss his latest quest without much ado. As stated by Chitty L. J. in the case of Fox Vs. Star Newspaper Company (1988) 1 QBD 636 at p.639 in considering a similar application: “The principle of the rule is plain. It is that after the proceedings have reached a certain stage, the plaintiff who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is no longer dominus litia and it is for the judge to say whether the action shall be discontinued or not and upon what terms” Following the words of Chitty L.J. and the rules of court, it could be inferred that this leaves the whole decision at the discretion of the Supreme Court. This discretion, however, has to be exercised bona fide and not be influenced by irrelevant considerations. The discretion should not be exercised arbitrarily, either, considering the nature of the case and the fact that the outcome of the decision has a lot of implications towards the forthcoming Anambra governorship election. That being the case, the discretion of the court must be exercised judiciously and judicially. See Njedi Vs. Chukwu (1988) 3 NWLR (Pt.81) 184 and University of Lagos Vs. Anore (1985) 1 SC 265. In the case of Rodrigues & Ors Vs. The Public Trustee & Ors (1977) 4 SC 29, pleadings were ordered and duly delivered by both parties and the case fixed for hearing. On the day of hearing, learned counsel for the plaintiffs applied to withdraw the action on the ground that the principal witness was out of the country and some vital documents were missing. The trial judge dismissed the case and was confirmed by the Supreme Court which concluded as follows (pages 42-43) “…we have reached the inflexible conclusion that the order of the learned trial judge dismissing the case was unimpeachable. It is right. It is the result of a proper discretion judicially exercised.” Also in the case of Eronini Vs. Iheuko (1989) 2 NWLR (Part 101) 46, the plaintiff started to give evidence, he contradicted his pleadings and the capacity in which he sued as well as the traditional history pleaded. His counsel applied to discontinue the action. The learned trial judge struck out the case and this was confirmed by the Court of Appeal. However, one of the parties appealed to the Supreme Court which allowed the appeal and dismissed the action and stated inter alia, per Obaseki JSC at page 61, that: “It is not a question of asking for leave to discontinue before calling evidence. It is a question of the evidence demolishing the case pleaded….In that case, it is my opinion that an order of dismissal is the proper order. The part of litis contestio has been reached. There was a divergence of the evidence led from the facts pleaded which were fundamental issue” See also Emeghara Vs. Health Management Board Imo State (1987) 2 NWLR (Part 56) 330. However, by virtue of Order 8, Rule 6(5), an appeal which has been withdrawn under this Rule shall be deemed to have been dismissed. By this Rule, it is a mere supplusage for the Supreme Court to make a ruling in this issue since the matter is deemed dismissed by virtue of withdrawal of the appeal by Andy Uba. However, since this issue has caused a lot of stir in the polity especially since it involves a substantial issue of law, the Supreme Court should take a desicive stand. From the case laws above and the Rule 6 (5) cited above, the proper action the Supreme Court should take is to take a final stand on this matter irrespective of what Order 8 Rule 6 (5) stated. There should be no room for conjesture or second-guessing the meaning of the Rule. The court should expressly and with necessary implication make a sweeping decision. To assert it independence and impartiality, the apex court should give another ‘final’ judgment on this matter and make it really final. As I said earlier, they should as a matter of principle, dismiss the matter with a substantial costs in the tune of millions of naira to fore-stall situation where the apex court would be subjected to ridicule. The integrity of the hallowed court is at stake even if some of the justices would not care to tarnish their own names and reputations. But this is not the justices alone that would be tarnished. The reverence of that hallowed chamber, that temple of justice would be desecrated if the justices do not take the bull by the horn and re-state that justice is not for sale. There has to be an end to litigation. That principle of res judicata would be waved goodbye to if the court has accented to the delusional wishes of one man to rule a state that had thoroughly rejected his services. The flood-gate would be open for sore losers to head to court and re-litigate cases that were already dealt with in the past. The Supreme Court cannot afford to start what it could not finish. So it is submitted that the apex court hit a death knell on this issue and let us put it behind us.
*Chukwudi Nwokoye writes from Maryland, USA.
nwokoyeac@hotmail.com