By J.S. Okutepa, SAN
The majority of Nigerian politicians are not democrats. They are majorly democratic despots and terrorists. They have destroyed every institution of democracy, including the rule of law and the judicial institution. The destruction of these vital democratic institutions is worrying me as a lawyer. I am worried that we are watching the reckless use of judicial institutions to kill democracy in the exercise of rights that are not recognised by law.
There is no dispute that the Nigerian Constitution, 1999, as amended, and the Electoral Act, 2022, have set out the types of political disputes that are justiciable in the Nigerian Courts. Nigerian courts of first instance must wake up and not be used to destroy democracy, no matter the level of temptation. The Nigerian Electoral Act 2022 has several sections that deal with pre-election matters. Specifically, Section 84(14) of the Electoral Act, 2022, provides that an aspirant who complains that any provisions of the Act or guidelines of a political party have not been complied with in the selection or nomination of a candidate may apply to the Federal High Court for redress. Those who purchased forms to contest political posts are not aspirants within the meaning of the law. Nigerian lawyers and judges know this, and nobody should claim ignorance of this.
Section 29(5) of the Electoral Act, 2022, also addresses pre-election matters, stating that any aspirant who participated in the primaries of their political party and has reasonable grounds to believe that any information given by their party’s candidate is false may seek relief. The Constitution of the Federal Republic of Nigeria, 1999, as amended, also provides for the provisions for pre-election matters under Section 285(14) thereof. Section 285(14) of the said constitution recognizes three types of pre-election matters.
The three pre-election matters recognized by law in Nigeria are: Non-compliance with the Electoral Act or party guidelines in the conduct of party primaries. Improper nomination of a candidate by a party and disputes over the eligibility of a candidate. These are the matters that can be addressed under Section 285(14) of the Nigerian Constitution and Sections 29(5) and 84(14) of the Electoral Act, 2022. In Nigeria, selections of candidates for party posts outside pre-election matters are generally considered non-justiciable, meaning courts should not and must not interfere with internal party affairs. The Constitution of Nigeria 1999, as amended, and the Electoral Act 2022 limit judicial intervention to specific pre-election matters. See Section 285(14) of the Constitution and Sections 29(5) and 84(14) of the Electoral Act.
The Supreme Court has, on many occasions, warned Nigerian Courts not to entertain disputes on internal party elections or selections for party posts, considering them non-justiciable. There are many judicial decisions. The Supreme Court has, on many occasions, deprecated the lower courts from following its decisions on this point. The case of Dalhatu vs Turaki is in point here. In that case, the Supreme Court was very hard on the trial court. Because of the significance of that decision, let me quote the views of their lordships of the Supreme Court then.
These are what their lordships said: “This court is the highest and final court of appeal in Nigeria. Its decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis, the courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sine qua non for certainty in the practice and application of law. A refusal, therefore, by a Judge of the court below to be bound by this court’s decision, is gross insubordination (and I dare say such a judicial officer is a misfit in the Judiciary”…I entirely agree with my learned brother Katsina-Alu that Onuoha V. Okafor and others (1983) 14 NSCC 494 was rightly applied to the facts of the case on hand by the Court of Appeal. This case was cited to the trial judge. He failed, rather, he refused, to apply it. He thought the Supreme Court was wrong in its decision in that case and arrogantly closed his judgment in these words “I also with great respect call on the Supreme Court to re-amend its position on the internal affairs of political parties.”
This, to my mind, is the height of judicial impertinence ever exhibited by a judge of a Court lower than the Supreme Court. The doctrine of stare decisis is fully entrenched in our jurisprudence to ensure certainty of the law. Had the learned trial judge in this case cared to read that case and the various dicta of their Lordships of this Court, he would not have exhibited such crass ignorance that ran through his judgment. I think enough said on this the better.”…”My general comment on the last sentence in the judgment of the learned trial judge which says-“I also with great respect call on Supreme Court to re-amend its position on the internal affairs of political parties.” is that it is rather daring and unfortunate. In my view it is a clear misconception of the well established principle of stare decisis in our judicial system. There is no doubt that the learned judge had at the back of his mind the decision of this court in Onuoha’s case (supra) and he did not realize that his duty like all other judges of the lower courts was to apply its ratio decidendi whether he agreed with it or not. See A.G. Ogun State V. Egenti (1986) 3 NWLR (pt. 28) 265; Emerah & Sons Ltd V. A. G. Plateau State (1990) 4 NWLR (pt. 147) 788. He could only avoid it where it was possible to distinguish the case he was dealing with from that of Onuoha. In this case, he could not do so and so it was not open to him to avoid applying it to the case before him nor could he “advise” the Supreme Court to change its position on it. It is well settled that the Supreme Court can only change its position in a case decided earlier by it where it considers, for good and substantial reasons, to overrule itself on an application where the need arises. Williams V. Daily Times (1990) 1 NWLR (pt. 124) 1; Rossek V. ACB Ltd (1993) 8 NWLR (pt. 312) 382; Johnson V. Lawanson (1971) All NLR 58. Judges of the lower court have no right under any circumstances to ask or advise this court to change its decision in any case.”….”The learned trial Judge refused to follow Onuoha. That was not all. He asked this court to re-amend its position in Onuoha. In his words: “I also with the great respect call on the Supreme Court to re-amend its position on the internal affairs of political parties”.
The word “re-amend” gives the impression that this court had earlier amended its position in Onuoha, whatever that means. I cannot remember the case in which this court amended its position in Onuoha. But that is not very important. The important thing is that a trial Judge would have the courage and the strength not to follow a decision of the Supreme Court merely because he feels that the decision is wrong. As if that is not bad enough, the Judge has called upon this court to “re-amend its position” to fall in line with his. This is an extremely unfortunate situation. Apart from the fact that it attempts to destroy the well settled principles of stare decisis, this court is invited to abandon its own correct decision to follow a wrong decision of a trial Judge. This is very serous.
On my part, I will not obey him. He is wrong in his judgment and this court is correct in Onuoha.” The doctrine of judicial precedent otherwise known as stare decsis is not alien to our jurisprudence. It is a well settled principle of judicial policy which must be strictly adhered to by all lower courts. While such lower courts may depart from their own decisions reached per incuriam, they cannot refuse to be bound by decisions of higher courts even if those decisions were reached per incuriam. The implication is that a lower court is bound by the decision of a higher court even where that decision was given erroneously: see Emerah & Sons Ltd V. Attorney-General Plateau State and ors (1990) 4 NWLR (Pt. 147) 788, Global Trans Oceanico S.A. V. Free Ent. (Nig) Ltd (2001) 5 NWLR. (Pt. 706) 426 at p.441; (2001) 3 SCM 35″
Nigerian Courts generally consider internal party matters, like selections for party posts, as non-justiciable, unless they directly impact electoral processes or violate the Constitution/Electoral Act in the party’s primary elections. And it is only aspirants who participated in the primary elections of the political parties that have locus standi and who can sue in the court and before the appropriate court with jurisdiction. One is completely at a loss at the kind of orders flying left and right centre by Nigerian Courts in sabotage of democracy and the rule of law, when, from the facts, there are no party primaries in all these cases.
The judiciary must not be ridiculed further. The sanctity of the judiciary must be preserved. The Nigerian judiciary must not be completely destroyed. Once it is destroyed, the hopes of Nigerians are destroyed forever. Democracy is heading to a calamitous end, given the despotic and thuggish approach to democracy by the majority of Nigerian politicians.
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
