On February 18, 2020 the Nigerian Supreme Court sat and called up for the first time the application by Rt. Hon. Emeka Ihedioha and the Peoples Democratic Party (PDP) to set aside the Court’s judgement of January 14, 2020 in which the Court had ousted Rt. Hon. Emeka Ihedioha from the governorship seat of Imo State. The matter was eventually adjourned to March 2, 2020 to enable the parties file and exchange all necessary processes.

It would be recalled that following the March 9, 2019 governorship election in Imo State the electoral umpire, INEC, declared Rt. Hon. Ihedioha elected. His rival of the All Progressives Congress (APC), Chief Hope Uzodinma, filed a petition in the Governorship Election Petition Tribunal. Uzodinma lost at the Tribunal and on appeal to the Court of Appeal, but on a further appeal the Supreme Court ousted Ihedioha and ordered that Uzodinma be sworn in immediately. It is the judgement of the Supreme Court that Ihedioha and his party, PDP, has applied to be set aside, on five major grounds.

The PDP had before the February 18, 2020 sitting by a formal letter made public requested the Chief Justice of Nigeria to convene a different panel other than the one that gave the decision of January 14, 2020. However, it appears that that request had, as at February 14, 2020, not been either granted or formally refused, but the sitting of the same panel on February 18 seems to portend an answer.

The purpose of this piece is to find out whether it would be proper under the circumstances and in accordance with the principles of fair hearing, the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the statute and rules of the Supreme Court if the same panel that gave the judgement of January 14, 2020 should sit to review it with a view to setting it aside if found worthy.

The Relevant Principle of Fair Hearing

A man shall not be a judge in his own cause. This principle, expressed in the Latin maxim nemo judex in sua causa, is one of the sacred pillars of fair hearing which is central to justice.

When the Constitution of the Federal Republic of Nigeria in Section 36(1) thereof demand that a court or tribunal shall be “constituted in such manner as to secure its independence and impartiality”, one of the things it is demanding is the application of the above principle.

Several authorities exist on what could make a judge be said to have an “interest” in a case. The major areas are where a judge:

(a) is a party to the cause, or

(b) has a financial interest in a party to the cause (for example a shareholder in a party to the cause, as in Dimes v. Proprietors of Grand Junction Canal (1852) 3 H.L. Cas. 759, or

(c) has an interest in the outcome of the cause, as in the Re Pinochet I [2000] 1 AC 61, explained in Re Pinochet II [2000] 1 AC 119.

On this last (c) aspect, there are different ways in which a judge may be said to have an interest in a cause or matter. Concerning a judge in any case, a judge can hardly be found to dabble into a case where he has an interest in the outcome or where he is so closely connected to one who has an interest in the outcome that he could rightly be seen or suspected to have an interest.

It is very clear that wherever a judge is so connected to a case or the outcome of a case that a doubt can objectively arise as to his impartiality, he ought to recuse himself. This principle, that a man should not be a judge in his own cause is also predicated on an equally important principle that justice should not only be done but should be seen to be manifestly done, and that the appearance of justice is equally important, and in some cases more important, than the substance of it. Our judges have over the years kept to this and its adjutant principle.

It is important that we keep to the narrow issue in this essay. Whereas there are cases where the issue is bias or likelihood of bias in a judge because of his interest or closeness to an interest, the issue of concern here is whether there is sufficient interest raised in a situation where a judge has to sit to review a judgement which he has earlier rendered, and whether the same panel which gave a judgement can avoid any objective charge of “interest” in reviewing a controversial judgement given by it.