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SUPREME COURT SHOULD INFREQUENTLY USE ITS POWERS DONATED IN SECTION 22

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[W]e decided to hear counsel on both sides on the point, even though it was a point which could have been properly raised under a respondents’ notice. This course is of course permitted by the Rules (see, for example, Order 8 rule 3(6) of the Supreme Court Rules, 1985). Besides, our consideration of the point is necessary for the determination of the real question in controversy in the appeal within the meaning of Section 22 of the Supreme Court Act. Indeed it is envisaged by the subsidiary issue framed for the appellants in their brief. But let me emphasize that although such powers, no doubt, exist, they are such that this court does not want to make a habit of drawing therefrom constantly so that it does not give the wrong impression that it is taking sides in matters in controversy before it. A respondent’s counsel should always make his own decision and file a respondent’s notice whenever necessary, otherwise he may find that he cannot advance a certain line of argument. I am invoking the power in this case because it is necessary for my decision in the case and has been raised by the subsidiary issue and was fully argued.

— P. Nnaemeka-Agu JSC. Gbaniyi Osafile v. Paul Odi (SC 149/1987, 4th day of May 1990)

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NIGERIAN CASES WHERE THE SUPREME COURT OVERRULED ITSELF

Again where there is a real likelihood of injustice being perpetuated this court has, in the recent past had occasion to over-rule itself. See Bucknor-Maclean v. Inlaks Ltd. (1980) 8-11 S.C. 1) – wherein this court over-ruled its previous decision in Shell B.P. v. Jammal Engineering (1974) 1 ALL N.L.R. 543 and Owumi v. P.Z. (1974) 1 ALL N.L.R. Part 2-on the above ground.

— Irikefe, JSC. Odi v Osafile (1985) – SC.144/1983

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EXERCISING SECTION 22 OF THE SUPREME COURT ACT – A CONDITION IS THAT THE TRIAL COURT SHOULD ALSO BE ABLE TO ADJUDICATE

Now, if this court is to consider the merit of the suit, it will only be able to do so by invoking its power to step into the shoes of the trial court under Section 22 of the Supreme Court Act. For this court to invoke and exercise its powers under Section 22 of the Supreme Court Act, one of the conditions that must be fulfilled is that the court below or the trial court, as the case may be, must have the power or jurisdiction to adjudicate over the matter. In other words, under Section 22 of the Supreme Court Act, this court cannot make order or exercise the power that the trial court or the lower court cannot make or exercise. See DANLADI V. UDI (2022) 9 NWLR (PT. 1834) 185; EBEBI V. OZOBO (2022) 1 NWLR (PT. 1810) 165; IDIAGBON V. A.P.C. (2019) 18 NWLR (PT. 1703) 102; ARDO V. INEC (2017) 13 NWLR (PT. 1583) 450; ADAMU V. STATE (2017) 10 NWLR (PT. 1574) 463 … While this court is conferred with wide powers by Section 22 of the Supreme Court Act, the powers can only be exercised within the confines of the competence of the trial court or the lower court. Once the power of the court has ceased, the power of this court under Section 22 of the Supreme Court Act also automatically ceases. Hence, this court has no power to delve into the merits of the appeal. A similar issue came up for determination in two recent decisions of this court, and it was held that this court cannot exercise its jurisdiction under Section 22 of the Supreme Court Act once the trial court or the lower court as the case may be has lost its own jurisdiction. See SAMUEL V. APC & ORS (2023) LPELR – 59831 (SC); EZENWANKWO v. APGA & ORS (2022) LPELR 57884 (SC).

— A. Jauro, JSC. PDP v INEC (2023) – SC/CV/501/2023

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CONDITIONS FOR THE EXERCISE OF SECTION 22 OF THE SUPREME COURT ACT

In determining whether the conditions surrounding an appeal before the Supreme court are conducive to the exercise of its general power under section 22 of the Supreme Court act as if the proceedings had been instituted and prosecuted before it as a court of first instance, the court will consider the followings: (a) The Availability before it of all the necessary materials on which to consider the request of the party. (b) The length of time between the disposal of the action in the court below and the hearing of the appeal at the Supreme Court. (c) The interest of justice to eliminate further delay in the hearing of the matter and minimize the hardship of the party.

– Tobi JSC. Odedo v. INEC (2008)

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SUPREME COURT CANNOT THROUGH SECTION 22 OF ITS ACT DO WHAT THE TRIAL CANNOT DO

One of the most recent cases decided by this court is the case of Towowomo v Ajayi (unreported) Appeal No. SC/CV/152/2022 delivered on 27/1/2023 wherein this court stated as follows: “In the circumstances of this case, this court cannot activate section 22 of the Supreme Court Act 2004 since the 180 days provided by the Constitution to determine the Appellant’s claim at the trial court has lapsed since 1st January, 2023. The originating summons was filed on 5/7/22 and expired on 1/1/23 at the Federal High Court. This appeal was taken on 2/1/23 and there is no opportunity for the contentious issue offacts in controversy in this appeal to be sent back to the trial court. See Ezenwankwo v APGA & ors (2022) LPELR 57884 (SC). The issue of the merit of the allegations of false information was not tried by the two lower courts and cannot be tried by this court pursuant to section 22 of the Supreme Court Act. This court cannot do what the trial court is no longer 32 constitutionally permitted to do by virtue of section 285 of the Constitution.”

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THERE WILL BE NO REFERENCE TO THE SUPREME COURT WHEN THERE IS A CASE LAW ON THE POINT

With this principal issue resolved in favour of the appellant, the motion filed herein for reference to the Supreme Court becomes irrelevant. This is because from the argument of all learned counsel to the parties, reference to the Supreme Court can only be made by the Court of Appeal to the Supreme Court under section 295(3) of the 1999 Constitution, if there have been no guidance from the apex court on the point. This is not the position in the instant case where this point sought to be referred to the Supreme Court – the application of immunity by the principal officers named in S.308 of the 1999 Constitution in election petition matters – had been resolved by the Supreme Court in the Obih v. Mbakwe and Unongo v. Aper Aku set of cases cited by the appellants counsel supra. In the light of these authorities, I hold that this is not a point for reference for clarification to the Supreme Court as the apex court had done the necessary clarification. In consequence application dated 17/12/03 and filed on 18/12/03 is hereby dismissed.

— M.A. Okunola, JCA. AD v. Fayose (2004) – CA/IL/EP/GOV/1/2004

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THE SUPREME COURT AS A POLICY COURT HAS TO PREVENT VEXATIOUS APPEALS

This court is a policy court and it has a responsibility of ensuring that vexatious or manifestly incompetent appeals and actions are not brought before it or before any court at all. The Supreme Court as an institution must strongly stand against and discourage the filing of suits that ridicule the judiciary as a whole. The instant appeal and the suit that gave rise to it are a colossal and an unnecessary fool’s errand. Counsel should do better to advise and discourage their clients against filing these sort of actions in the future.

— A. Jauro, JSC. PDP v INEC (2023) – SC/CV/501/2023

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