- Legal luminaries differ on extension of assembly election cases to Supreme Court
- You lose relevance when you deviate from apex court’s precedence, Appeal Court, Tribunals told
Following the judgement of the Supreme Court which discountenanced the verdicts of the Court of Appeal and upheld the governorship election victories of eight state governors, some constitutional lawyers have advised the 16 sacked members of the Plateau State House of Assembly on the platform of the People’s Democratic Party and five National Assembly members on the next action to take.
While some lawyers argued that the affected parliamentarians could still approach the Court of Appeal in their states with an application to set aside its judgement in the interest of justice, others asked the sacked lawmakers to embrace their fate as the appellate court may not be able to reverse itself.
The Supreme Court, had last week Friday, confirmed Caleb Mutfwang of the PDP, as Governor of Plateau State.
Mutfwang led with a total of 525,299, while the All Progressives Congress candidate, Nentawe Yilwatda, garnered 481,370 votes during the governorship that took place on March 18, 2023.
The governor’s election was upheld by the Plateau State Governorship Election Petitions Tribunal in the state’s capital city, Jos.
Earlier, on November 19, 2023, the Court of Appeal in Abuja rejected Mutfwang’s victory in its judgement, which led him to file an appeal with the Supreme Court to contest the ruling of the lower court.
The Appeal Court had on November 26, 2023 sacked the Plateau State 16 PDP state lawmakers, five National Assembly members.
Since petition cases on State and National Assembly elections end at the Appeal Court, The Point asked some constitutional lawyers if there is anything that the PDP lawmakers who were sacked by the Elections Petition Tribunal and Appeal Court can do and they answered in diverse ways.
In an interview with The Point, a legal practitioner, Nurudeen Kareem, asked the sacked Senators and House of Assembly members in Plateau to go back to the same Court of Appeal with an application for the court to set aside the judgement on the ground that the court, ab initio, lacked jurisdiction to entertain the case.
Justifying his opinion, Kareem said, “The aphorism that says two heads are better than one is what we have seen in the judicial imbroglio that the whole world is complaining about. You will remember that prior to 2011 or 2012, even the governorship election, the Court of Appeal used to be the last and final court. It was in 2012 or 2011 that the National Assembly amended the law to give allowance for any governorship candidate aggrieved with the decision of the Court of Appeal to go to Supreme Court and it is that law that has favoured the Governor of Plateau State today.
“Now, on what would be the fate of the National Assembly members in Plateau State who were voted by their people but who the Court of Appeal ruled that their candidature was not valid as a result of which their adversaries on the platform of another party were ordered to be given the Certificate of Return. Yes, it is the law that conferred jurisdiction but when the law says the Court of Appeal will be the final court, it means that whatever that court decides, it is final and there is no room to go higher to complain about the judgement of the court.
“As a lawyer, that is the law. But, in this case, in my own opinion, I think we have a special case. Had it been that the case of the governor of Plateau State had not gone to the Supreme Court and the Supreme Court had not been able to make pronouncement on the case, we would have agreed, probably, that the Court of Appeal was right in its reasoning and judgement. But, the Supreme Court did not just upturn the judgement of the Court of Appeal, but also went ahead to blast the judges of the Court of Appeal for total disregard and abandonment of the fundamental principle in our legal system that says the lower court must always ensure that it follows the judgement of the higher court in its judgment.”
Explaining how the Court of Appeal sitting in Plateau goofed on its verdict that removed the lawmakers, the lawyer opined that, “Now, on the issue of primary nominations and sponsorship, there is a plethora of authorities by the Supreme Court to the effect that anything that has to do with the nomination of the candidate or sponsorship, it is the internal affairs of that party and the court does not have any business to dabble into it. The court will not assume or usurp the power of the party to nominate a candidate for the party, that the party leadership has the right, power, and authority to nominate any candidate for any election in which that party wants to participate.
“If you look at the Plateau State matter, the argument maintained by counsel to Governor Caleb was that the tribunal did not have jurisdiction to even look into the issue and that if at all the court will have jurisdiction to look into it, it would be a pre-election matter. They maintained that at the tribunal, they lost, they maintained that at the Court of Appeal, they lost. But, because of the opportunity the law gives to the governor to go to the apex court, which is the Supreme Court to hear his grievances against the judgement of the lower court, when the matter got to the Supreme Court, the Supreme Court upheld the submission of the counsels to the governor of Plateau State that the court lacked jurisdiction to even look into the case because it has to do with the internal affairs of the party.
“Apart from that, the Supreme Court even found that the congress, the order of court that was purportedly flouted; you know the APC candidate claimed at the court that there was an order of a competent court violated by the PDP in Plateau State. They claimed that the order was to the effect that a fresh congress is to be conducted. It was the finding of the Supreme Court that even the PDP as a party never violated any court order as the congress ordered by that court was actually conducted by the PDP; meaning that all what the Court of Appeal and the Tribunal did were perverse.
“So, the advice I will give in my opinion is that even though the matter could not be taken to the Supreme Court, the National and State Assembly members sacked in Plateau State should go back to the same tribunal for the tribunal to set aside its judgement because ab initio, the tribunal and the Court of Appeal never had jurisdiction to entertain the case.”
He added, “I understand the fact that once a Tribunal or Court delivers judgment, the matter could not be held again by the same court. Everybody that is dissatisfied with the judgment can go to the higher court, but this principle of law is not without some exceptions. One of the exceptions is that if the judgement given by that court was obtained by fraud, one can go back to the same court with an application for that court to set aside its own judgment.
“Another exception is that if the court did not have jurisdiction at all to even look into the case before it, the person dissatisfied with the judgement can go back to the same court with the prayer that the court should set aside the judgement.
“I think in this legal impasse, in my opinion and in the interest of justice, the Court of Appeal, which sat on the matter in Plateau State and declared that the National and State Assembly members were not duly nominated by their party should go back and set aside that judgment on the basis of lack of jurisdiction to even look into the matter ab initio because the matter cannot go to the Supreme Court.
“Another issue is the limitation of time. You know that election petitions are limited by time. My opinion is that the National Assembly members should apply before the Court of Appeal to set aside its judgement on grounds that it does not have jurisdiction right from the beginning to even look into the matter at all. It is only the issue of time that I see as a setback for that. But, in the interest of justice, the Court of Appeal sitting in Plateau State should set aside the judgement on ground that it never had jurisdiction ab initio to entertain the case being a matter that is within the internal affairs of the party and the Supreme Court had handed down a plethora of authorities to the effect that when any matter that has to do with nomination and sponsorship of candidate is an internal arrangement of political parties and no court has jurisdiction to dabble into it. So, the affected lawmakers should make an application to the Court of Appeal to set aside its judgement.”
Warning against violation of judicial precedent by lower courts, Kareem stated, “The people of Plateau State voted for these lawmakers and the Court of Appeal should do this in order to sustain the faith and trust of the Nigerian men in the judiciary. The judiciary should not make it look as an institution that is usurping the electoral power of the citizens to impose who rules the state and who would be at the National Assembly on them.
“Though, it is an impasse, it might have never happened, it is my opinion that those Senators, those House of Assembly members should go back to the same Court of Appeal with an application for the court to set aside the judgement on the ground that the court ab initio lacked jurisdiction to entertain the case.”
Asked if there should be a review of the Constitution to allow the extension of National and State Assemblies election cases to go up to the Supreme Court, he said such an act would cause more crises in the judiciary.
“I will not advocate for a review of the Constitution to allow petitions, appeals arising from National or House of Assembly elections to go to the Supreme Court. Do you even know the reason why the Supreme Court now stays firm on the principle that the court should not dabble into the internal affairs of the party? It is to decongest the courts, to limit litigations that arise before and after our general elections. So, making a case for allowing appeals from National and State Assembly elections to go to the Supreme Court will create other problems.
“We have a single Supreme Court. Just look at the resources required to pursue cases up to that level. We do not need that. If you look at the judgement delivered by the Supreme Court on Plateau State, you will notice that Hon Justice Emmanuel Agim sounded a strong warning to the lower court that they should be careful if the legal profession, that is the bar and the bench do not want to lose the relevance of the legal profession.
“There was an amendment to the Electoral Act in 2022, one of the mischiefs that the amendment removed was the plethora of cases arising from elections before and after the elections. Before the Electoral Act of 2022, the position was that even the candidates of other parties would come and challenge the primaries conducted by other parties. But, with the amendment to the Electoral Act of 2022, only aspirants who participated in the primaries are the ones that can go to court to contest the primaries conducted by his party. The reason for that is to reduce the number of cases that arise from elections.
“Now, whenever we make a case for appeals from National Assembly Election petitions and State House of Assembly petitions to go to the Supreme Court, imagine the number of cases that will land in the Supreme Court within a period of one year. How many are our judges at the Supreme Court? Even as we speak, we are complaining and people are advocating a review and reform for the Supreme Court, maybe if we can have the Supreme Court dotted over the geo-political zones because presently, we have only one Supreme Court sitting in Abuja,” he said.
Speaking in a different perspective, another lawyer, J. P. Jones, said there was nothing the sacked lawmakers could do other than to embrace the judgement of the Court of Appeal.
Jones, however, called for an amendment of the Constitution to allow cases arising from National and State Assemblies to be finally decided by the Supreme Court.
“I am calling for the law to be amended so that that matter can at least get to the Supreme Court because the Supreme Court is infallible. There are some things that may not go right at the level of the Appeal Court. We have seen a lot of judicial authorities being churned out by the so-called Courts of Appeal. There is no coherence among them. This Court of Appeal will say A is for Apple, the other Court of Appeal will say, no, A is for Abdulahi. It is called for checkmating and that is why I am calling that petitions arising from National and State Assembly elections should get to the Supreme Court so that the apex court will have a better look at it and whatever be the outcome at the Supreme Court, we can now be bound by it. Putting it at the level of the Appeal, we still have a long way to go.
“For now, the law is not there for them (sacked lawmakers) to pursue the case to the Supreme Court. So, they have no other choice than to embrace it,” he contended.
The National Coordinator of the Human Rights Writers Association of Nigeria, Emmanuel Onwubiko, who spoke to The Point on the vexed issue said, “There is no need for any constitutional amendment. That is not the solution because even in the Supreme Court itself, they have produced what Imo State people call “Supreme Court Governor”.
“Hope Uzodimma did not win the election. He came fourth in Imo State in 2019 but the Supreme Court, through the (Kudirat) Kekere-Ekun-led panel, produced him as governor.
“Amending the law will allow for legislative elections litigations to get to the Supreme Court and it is not the solution. It will rather compound the problem and give the Supreme Court much more than what it can handle.
“Already, too, the cases they have in the Supreme Court right now, if they are to sit on them every day, it may take 10 to 15 years to be able to dispose of those cases. If you now add more responsibilities to them, it will be too much. And you know Nigerians, when they contest elections and lose legally, they will still want to go to court.”
