Supreme Court setting aside of governorship judgements of the Court of Appeal in three states of the federation as called for the need for the amendment of the law terminating parliamentary election at the appellate court has become imminent. Besides, it’s high time judges and justices who were not meticulous in their dispensation of justice are severely punished for judicial rascality and travesty of justice, writes Alex Enumah
The nation’s judiciary has been battling image crisis for some times now with many doubting its ability to serve as “hope for the common man”. Many, including lawyers and some retired justices believes that the bench of Nigeria’s judiciary is not only corrupt but manned by incompetent judicial officers who got their appointment and elevation through nepotism and favouritism rather than merit.
Recall that Justice Musa Dattijo Muhammad at a special court session on his exit from the bench of the apex court had bemoaned the high level of corruption in the Nigerian judiciary and had advocated for urgent reforms to remedy the situation.
According to him, corruption runs high from the point of appointment of judicial officers and up to the quality of judgments judges and justices at all levels deliver. Dattijo said that it has been in the public space that court officials and judges today are easily bribed by litigants, “to obviate delays or obtain favourable judgments”.
Muhammad on a sad note had lamented that, “the judiciary I am exiting from is far from the one I voluntarily joined and desired to serve and be identified with. The institution has become something else”.
Speaking further, the Retired Justice of the Supreme Court alleged that appointments have been polluted by political, selfish, and sectional interests. “It is asserted that the process of appointment to judicial positions are deliberately conducted to give undue advantage to the children, spouses and mistresses of serving and retired judges and managers of judicial offices.
“At the Court of Appeal, it is asserted, presiding justices are now being appointed out of turn. And there is the further issue of the unpredictable nature of recent decisions of the courts as well.
“A number of respected senior members of the Bar inter alia, citing the Ahmad Lawan, the former President of the Senate and Imo governorship appeals, claim that decisions of even the apex court have become unpredictable. It is difficult to understand how and where, by these decisions, the judicial pendulum swings. It was not so before, they contended.
“In some quarters the view is strongly held that filth and intrigues characterize the institution these days! Judges are said to be comfortable in companies they never would have kept in the past. It is being insinuated that some judicial officers even campaign for the politicians. It cannot be more damnifying!”
The above situation is best appreciated from the judgments of the Court of Appeal nullified and set aside last Friday by the apex court for being a flagrant abuse of court, travesty of justice and and a threat to democracy.
Presiding Justice of a five-member panel of the Supreme Court, Justice John Okoro, while lamenting the pain brought by the wrongly judgments of the appellate court and tribunal urged justices, particularly those of the Appeal Court to be “meticulous in doing their job” to avoid the kind of “mess” that the Kano governorship matter was.
Recall that in three separate judgments the appellate court justices had voided the election of Governors Abba Yusuf, Caleb Mutfwang and DaudaLawal of Kano, Plateau and Zamfara states respectively on grounds of alleged unlawful nomination and sponsorship and deduction of alleged illegal votes.
The problem here was not just that the justices of the appellate court erred in their understanding of the law and subsequent decisions but that they deviated from their own settled judgments as well as that of the Supreme Court to the effect that issues of party primary, nomination and sponsorship of candidates are not something the tribunal, appeal court and even the apex court can look into.
Like a former Chairman of the Nigerian Bar Association (NBA), Abuja Branch, Mr Moses Ebute, SAN observed, “Unfortunately, the Court of Appeal defiantly refused to follow the decision of the Supreme Court and thereby visited grave injustice on other PDP candidates involved in national and state legislative houses election in Plateau State.
“More worrisome, surprising and embarrassing is the fact that the same Court of Appeal had held and pronounced in the Presidential Election Petitions that whoever is not a member of a political party or is not an aspirant in the primary election of a political party, cannot challenge the nomination of a candidate of another party.
“How and why it didn’t follow its own decision leaves much to be desired”, he queried, just as he stated that, “in a plethora of judicial authorities, the Supreme Court had held that a refusal to follow its decision as the apex court of the land on similar issues by a lower court tantamount to judicial rascality. I say no more.
The lawyers were not alone in the condemnation of the justices of the appellate court.
The Supreme Court also lambasted the Appeal court justices over the quality of their judgments in the election petitions brought before them. Justices of the apex court including John Okoro, Emmanuel Agim and Helen Ogunwumiju, regretted that despite several decisions of the Supreme Court that tribunals and courts lacked the jurisdiction to dabble into the internal matters of political parties, some justices could still go ahead and sack a winner of an election on grounds of political parties’ primaries, nomination and sponsorship.
Delivering judgment in the appeal of Yusuf, a five-member panel of the apex court led by Justice John Okoro, in reversing the sack of the New Nigerian People’s Party (NNPP’s) Kano state gubernatorial candidate held that the Court of Appeal was wrong in affirming the judgment of the tribunal which held that Yusuf did not win majority of lawful votes cast at the March, 2023 election in Kano State.
The apex court in determining the case raised two issues; whether the lower court was right in deducting the 165000 votes and whether the lower court was right in entertaining the issue of membership of political parties.
According to Justice Okoro, the tribunal was wrong in deducting 165,616 votes accrued to Yusuf at the election on grounds that the ballot papers were not signed and stamped by officials of INEC.
In addition, the court held that Section 71 of the Electoral Act relied upon by the lower court to deduct the alleged disputed votes does not apply in the instant case.
“The provision does not refer to any regulation or action at the polling units”, he said, adding that the provision was to the exclusion of ballot papers.
Having so held, the apex court went ahead to restore the deducted 165,616 votes to reinstate the victory of Yusuf at the governorship election.
“The decision of the trial court cannot stand, all the ballot papers are hereby restored”, adding that the evidence did not show that the appellant interfered with the ballot papers not signed.
On the second issue, the apex court also faulted the Court of Appeal for holding that Yusuf was not a member of the NNPP as at the time he contested the election, adding that the issue of nomination and sponsorship is a pre-election matter and outside the jurisdiction of the court.
Besides, Okoro observed that contrary to the appellate court, the tribunal never held that Yusuf was not qualified to contest the poll but that his name was not in the NNPP’s membership register submitted to INEC.
The apex court subsequently set aside the judgment of the two lower courts for being perverse and restored the electoral victory of Yusuf.
Similarly, the apex court also set aside the judgment of the Court of Appeal, which voided the election of Governor Caleb Mutfwang of Plateau state, on the same grounds that the appellate court lacked the jurisdiction to entertain the issue of nomination and sponsorship.
According to the apex court, the decision of the appellate court was “perverse”.
“We have held in a plethora of cases that the sponsorship of a candidate for election is an internal affair of a political party”, the court lamented.
Besides, the apex court pointed out that the issue of sponsorship has elapsed long ago, thereby robbing the court jurisdiction of entertaining the matter in the first place.
In addition, Agim further held that the petitioners not being members of the PDP have no locus to challenge the primary election of the PDP. He said: “Since they are not members of the PDP, the tribunal and Court of Appeal have no right at all to look into the issue”.
On the issue of whether the order of the Plateau State High Court can affect the National Executive Committee (NEC) of the Peoples Democratic Party, the apex court held that the appellate court was wrong in holding that the order affects the NEC.
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“The order of the High Court of Plateau State had nothing to do with power of the NEC of the PDP”, he said, while stressing that contrary to the claim of the petitioners and the judgment of the appellate court, the order of the Plateau High Court was not disobeyed by the PDP because evidence showed that a fresh primary was conducted.
While expressing worries over the image of the judiciary, Agim warned the legal profession to wake up or else it would render itself irrelevant.
“The judgment of the Court of Appeal is set aside, the election of the appellant is restored and the judgment of the tribunal affirming the election of the appellant is hereby affirmed”, he declared.
Meanwhile, Presiding Justice, John Okoro, who agreed with Agim that “the whole case is a clear abuse of court process” lamented that a lot of people have suffered because of the wrongful judgments of the appellate court which had sacked several legislators who won elections under the platform of the PDP.
Justice Helen Ogunwumiju also berated the appellate court for going into the issue of nomination and sponsorship despite several decisions of the apex court to the effect that another political party cannot challenge the primary election of another.
Like Kano and Plateau, the apex court also restored the election victory of DaudaLawal at the March 18, 2023 governorship election in Zamfara State for not being in tandem with the law. The apex court held that the judgment of the appellate court which nullified the judgment of the tribunal that affirmed election of Lawal as governor was perverse and ought to be set aside.
“The judgment of the Court of Appeal have no evidential foundation and it is hereby set aside. The order setting aside the judgment of the tribunal and order for fresh election are hereby set aside.
“The judgment of the tribunal dismissing the petition of the petitioners for lacking merit is hereby affirmed”, the apex court held.
While the restoration of the election victories of the three governors have been commended, it is however disheartening to know that the fate of 11 lawmakers in Plateau State who suffered similar wrong judgment from the appellate court cannot be reversed. This is so because of the finality of the judgment of the Court of Appeal as it relates to parliamentary elections.
Constitutional lawyer and rights activist, Professor Mike Ozekhome, SAN, in reacting to the issue called for an urgent review of the electoral laws.
He lamented the fate of the legislators who lost out because their case ended at the appellate court and was not privileged to get the wrongful judgments against them reversed.
While commending the apex court for rising in “defense of the mandate of the people”, by ensuring that “the votes of the people don’t just count but shall be allowed to count”, he urged for a review of the law to prevent similar situation in future.
He recalled how he advocated that not all cases should get to the Supreme Court because of the heavy workload there.
“We saw great injustice today and my heart has been bleeding”, he said, “we should look at the law again, whether the election of the lawmakers should be terminated at the Court of Appeal”.
While observing that he does not have the habit of petitioning judges to the National Judicial Council (NJC), Ozekhome however said that the disciplinary body for judicial officers “should take cognizance of this very same matter”, which, according to him, has brought the judiciary to further disrepute and disrespect.
However, the former Chairman of the NHRC, Professor ChidiOdinkalu, on his part, called on the President of the Court of Appeal, Justice Dongban-Mensem to resign her position. He described the case of Plateau State as extraordinary and a willful miscarriage of justice which requires extraordinary measures.
While admitting that decisions of a final court which the Court of Appeal in parliamentary election disputes is not possible, he argued that the appellate court can review its judgments in exceptional cases.
“The scale of the wilful miscarriage in Plateau State is extraordinary. It calls for extraordinary measures. I personally believe that the current President of the Court of Appeal who is from Plateau State is complicit in the injustice. She comes from the same LGA – Shendam – as the immediate past governor whom they have now installed as Senator for Plateau Central. I would go as far as to say she has been privy to everything that happened in these Court of Appeal violations.
“But there is a way for her to show she is not: She can constitute a different panel of the Court of Appeal to hear applications for review of the decisions. That is the least she can do,” he added.
For Professor EdobaOmoregie, SAN, “the only remedy open now is for the legislature to consider legislative action to right the wrong. This can only be by fresh legislation which will be effective in the next election cycle”.
Another lawyer, Reverend John Baiyeshea, SAN, while lamenting that there is no remedy for the Plateau lawmakers over the monumental travesty of justice done to them, observed that, “our legal system should not at our present state of development present citizens with such helpless situation where there is no remedy for such a brutal wrong done to its citizens.
“This is why those who have the privilege of presiding over the affairs of others to determine their fate should be very careful not to abuse such privilege.
It is quite sad that before our very eyes, the representatives the people of Plateau State voted for have been replaced by those ‘selected’ by the Court of Appeal.
Democracy has been obliterated, basterdised and the people shortchanged.
“That’s the tragedy of a nation like Nigeria that never gets anything right” he said.
He urged the National Assembly and other stakeholders in law making to do something to amend the Constitution and other laws to remedy this anomaly against the future as the country cannot and must not continue like this.
For Mr Ahmed Raji SAN, the fate of the Plateau lawmakers is similar to a situation where the law under which a person is convicted is subsequently pronounced unconditional.
“Will the convict continue to remain in jail or he will be set free. There are two schools of thought on the issue. Perhaps the affected parties should consult widely on the pronouncements of my noble Lord OkoroJsc against the finality of the Court of Appeal’s judgment in the state and national assembly seats”.
According to Raji, the issue appears moot in the realm of testable legal hypothesis.
It therefore behoves on the sacked legislators as well as the electorates who voted for them to ‘test the waters” by commencing legal action to seek redress over their loss.