Femi Falana, senior advocate of Nigeria (SAN), says the supreme court cannot sit to hear the application by Emeka Ihedioha for the review of its judgment on Imo governorship election if six justices recuse themselves from the case.
Before the adjournment on the hearing of the review application on Tuesday, the Peoples Democratic Party (PDP) wrote to Ibrahim Muhammad, chief justice of Nigeria, demanding that he and five other justices withdraw from the matter.
In a letter signed by Uche Secondus, the national chairman, and Umar Ibrahim Tsauri, national secretary, dated February 14, 2020, the party demanded that a new panel be set up to hear Ihedioha’s application.
The party said it feared “likelihood of bias” and “denial of right to fair hearing”.
The other justices the party asked to recuse themselves along with Mohammed are: Nwah Sylvester Ngwuta, Olukayode Ariwola, Kudirat Kekere-Ekun, Amina Adamu Augie, and Uwani Musa Abba Aji.
But Falana told TheCable that there are currently 11 justices of the apex court and that if six of them recuse themselves from the case, the court would not be able to form a quorum to hear the matter.
”The PDP has asked CJN Mohammad Tanko as well as Justices Nwah Sylvester Ngwuta, Olukayode Ariwola, Kudirat Kekere-Ekun, Amina Adamu Augie, and Uwani Musa Abba Aji to recuse themselves from the application for the review of the judgment of the court in the Imo governorship case,” he said.
”If the application is granted the court may not be able to hear the application again. In other words, if 6 out of the remaining 11 Justices of the Court recuse themselves the Court will not be able to form another quorum of 7 Justices to hear the constitutional matter. By the time the Court is reconstituted by the federal government the time for the review of the judgment would have long expired.”
The lawyer cited a similar application filed by the late MKO Abiola against nine justices out of the 16 members of the court in 1995.
He said as the nine justices recused themselves from hearing the case, the appeal for the bail of Abiola was never heard because the Abacha junta refused to reconstitute the court.
”See Chief MKO Abiola v Federal Republic of Nigeria (1995) LPELR-SC.274/1994,” he added.
The supreme court is expected to make its position known on the matter on Tuesday.