By P. D. Pius, Esq
Someone is reported to have said, the case has proceeded from Tribunal to the Court of Appeal and now in the Supreme Court, that is where we will know who they know and they will know who we know . What an interesting play with words. In my thoughts, the Supreme Court should be about laying sound legal principles that can last a generation at least. The law should have the character of being predictable such that a similar case will attract similar judgement and not otherwise.
While commending the Supreme Court for not departing from the earlier decisions when deciding the Plateau Governorship and Kano Governorship, yet I am concerned with the precedent laid by Supreme Court. A wrong without consequence or penalty is a recipe for anarchy. Legislative law making is more preferable than judicial law making.
Legislative law is when the law is actually made by elected representatives called law makers. Judicial law making is when courts ultimately decide what the law is irrespective of what the law makers write or state in the law. I am afraid that recent decisions of Supreme Court are more tilted to judicial law making.
Take Plateau Governorship petition for instance, there is a part where the Supreme Court held that the order of Plateau State High Court for fresh congresses in Plateau State was against PDP plateau state and not PDP national that eventually nominated the Governor. Much as the decision is final, I don’t think that from the letters of the law there is any difference between PDP plateau chapter and PDP National. PDP is PDP as one political party given one legal personality by the Constitution of Nigeria. When Plateau State chapter commits wrong, you cannot go to Court suing PDP Plateau State chapter, you will go to Court suing PDP because only one PDP is recognized in law. An order against PDP is an order against PDP. Laying a precedent that an order against a political party can be compartmentalize to National, State and probably Local Government is not good for our democracy.
There is also the point that it is PDP NEC that nominate Governorship aspirants and not State Congress. While it is true that Supreme Court has given this decision in many previous cases, I don’t think that Courts are supposed to rewrite the Constitution of political parties. From article 25(2)(c) of PDP Constitution, it is State Congress that has power to elect the party’s Governorship aspirant and not PDP NEC. The fact that NEC has been usurping the powers of State Congress does not change the provision of PDP Constitution and the courts are not supposed to rewrite the Constitution of political parties.
That is by the way. The vex issue is whether a non party member should be allowed to challenge nomination processes of another political party. Before 2022 Electoral Act, every Nigerian whether a party member or not can challenge the qualification of a candidate based on nomination processes. It is for this reason that PDP ousted APCs victory in 2020 Bayelsa Governorship election. Remember that since then there is no constitutional amendment on this point, so you can’t say the provision of the Constitution has changed. The only change is Electoral Act, 2022. Let’s focus on it.
When you read the Electoral Act, while the Act has now taken away the power of all members of public to challenge qualification of candidates, it also confers that right on candidate of other political parties to challenge qualification as post election matter even on nomination ground. See section 134(3) of the Electoral Act 2022. The Electoral Act was clear here that the factors of qualification that a none party member can challenge as post election matter includes nomination and sponsorship mentioned in section 177 of the Constitution.
The Court of Appeal has correctly interpreted this provision in respect to 2023 National Assembly and State Assembly elections in many states including Abia, Imo and many other states where lack of valid nomination was used to disqualify winners and runner up declared winners. In fact My Lord justice Georgewill JCA did wonderful job interpreting these provisions.
Here is an excerpt from one of such beautiful judgments:
“I am therefore, truly satisfied, and I so hold, that by a community, and not an isolated, reading of the provisions of Sections 134(3) of the Electoral Act 2022 and Sections 65, 66, 106, 107, 131, 137, 177 and 182 of the Constitution of Nigeria 1999 (as amended), it would be crystal clear, to every discerning mind, including my humble self, that there is a dual or concurrent jurisdiction to both the lower Tribunal and the Federal High Court over issues of qualification depending on the peculiar fact of any given case and the stage in which it was raised. It can be canvassed at the Federal High Court within 14 days after the primaries by a member of the political party involved and who himself was a candidate at the questioned primary election of that political party. It can also be canvassed before the Election Tribunal after the question elections as issue of non-qualification of a person who was declared and returned as winner of the said election by INEC. This is no rocket science as it is very clear. The law cannot and would not bar a person from another party from raising the issue of non-qualification by reason of invalid sponsorship or nomination of a person from another political party as a result of a flawed primary election before the Federal High Court for lack of locus standi, and yet turn around to again bar the same person from raising the issue of non-qualification of another person, of another political party, with whom he contested the questioned election and who was declared and returned as the winner of the said election. The law cannot be this brazenly inconsistent as to give a right with one hand and then when the right is invoked, to take it away with the other hand.” See Okeke & Anor v. Nwachukwu & Ors.
Wow! This is exactly the intention of the legislature by enacting section 134(3) of the Electoral Act 2022. Note that this provision is new and there is no similar provision in 2010 Electoral Act. I don’t know how the Supreme Court missed this provision or faulted this provision. I think that our courts should just stick with what is stated in law as made by National Assembly without modification.
Now, people are agitating about National Assembly members and state Assembly members from Plateau State who lost their seats. How about those in Abia, Imo and other states who lost their seats on same issue. There can other grounds of challenge but I don’t think it should be on the Supreme Court judgment.
In fact, there are many other cases won at Court of Appeal being final court on a principle that was overturned by Supreme Court in subsequent cases. In 2015 for instance, so many National Assembly elections and House of Assembly were nullified by Court of Appeal on failure to comply with card reader in the elections. However, Governors whose cases got to Supreme Court like Wike, Umana, etc survived.
The Supreme Court held that card reader is not part of our Electoral Act. So, we ended up with many people losing their seat based on what the Supreme Court says is not part of our law. Only Governors survived. It was a case of one county, two different justice system.
No one called for the head of the Court of Appeal Justices then.
To be continued!
Drop your comment, questions!
P. D. Pius, Esq., ACIArb.(UK)
Abuja, Nigeria
www.pdpiusandassociates.com
