Adeleke V INEC: Discordant Judicial Tunes And The Dark Clouds Of Technical Justice In Nigeria’s Election Jurisprudence By Steve Austin Nwabueze

The Supreme Court of Nigeria, like that of every other legal system worth its salt is steeped in a policy-making role aside conducting its primary role as the judex in resolving disputes. As the apex court it is always looked upon to show the way when judicial interpretations from the Courts below become blurry and fuzzy.

In exercising this role, its decisions more often than not, forge a new path of national existence and has far-reaching economic and political implications. Nigeria’s well-documented dalliance with military rule has in a way, affected the policy-making role of the Supreme Court. In some notable cases, the Supreme Court has stood tall and exhibited commendable judicial intrepidity by interpreting the law, fearlessly.

Two notable cases where the Supreme Court demonstrated commendable judicial activism are the cases of Council of University of Ibadan vs. Adamolekun (1967) ANLR 225 SC and EO Lakanmi and Ors vs. Attorney General of the West and Ors. (1971 1 UILR 201

The Supreme Court was invited in Adamolekun’s case to interpret the provisions of S.6 of Decree no 1 of 1966: which provided:

“No question as to the validity of any decree, or edict should be entertained in any court of law in Nigeria.”

The Supreme Court in interpreting this section rejected the contention that it was an ouster clause against its jurisdiction. Rather, the court interpreted it to mean that the court could not question the competence of the military authorities to promulgate decrees and edicts. The Supreme Court was, however, not so diplomatic in Lakanmi’s case where it had gone on to declare another draconian decree of the military, decree no 45 of 1968 as null and void.

Justice Niki Tobi (of blessed memory) had in the case of Omoju v. Fed. Republic of Nig. (2008) 2-3 SC (Pt.1) 1 at 13 lines 15 – 30  recognized the eminent position of the Supreme Court as a policy-making court when he stated in the following resonant judicial tones thus:

The appellate system is there to correct mistakes of trial Judges. Where a mistake of a trial Judge does not affect the live issues, props or fundamentals of the matter, an appellate court will not allow an appeal. Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality, is not justice but a caricature of it. It is justice in inverted comas and not justice synonymous with the principles of equity and fairplay. Caricatures are not the best presentations or representations.”

Since emerging from the shadows of its dark military past, Nigeria’s Supreme Court has had a major highlight reel of case law principles that have gone ahead to enrich our jurisprudence. It is pertinent to mention that following the transition from military to democratic rule, emphasis has been placed on improving the democratic process in which the Supreme Court plays an integral role. A fundamental part of that role is the interpretation of our electoral laws. To this end, we have been regaled with a potpourri of judicial decisions ranging from the disappointing to the enriching. Expectedly, most of these decisions emanated from seriously contested election petition cases.  I would briefly comment on just a few of the decisions before delving into the pith of this article.

Obi vs INEC turned on the question of the commencement of the term of an elected Governor. It is worth mentioning that at the time of making this decision, there was no limitation of time for the determination of electoral disputes. Accordingly, this decision had implications for both the affected electorates and the INEC as a body.   The palpable poser was whether Peter Obi should complete Dr Chris Ngige’s tenure or start a fresh term of four years. There were concerns on the implication of a decision that tows the commonsense path of allowing him to start his own tenure even if it would undermine the electoral timetable of Anambra State. The Court stood tall in arriving at its decision and enriched our jurisprudence.

One of the most recent decisions on this point was in  Maihaja v. Gaida (2017) LPELR-42474(SC) the appellant was the plaintiff in an Originating Summons filed in Suit No. FHC/ABJ/CS/220/2015, dated 19th day of March, 2015 and filed at the Registry of the Federal High Court, Abuja. The suit sought a number of declaratory reliefs and sundry orders including nullification of the nomination of the 1st Respondent as the candidate of the 2nd Respondent in the 2015 Governorship election of Yobe State. The Supreme Court in upholding the nomination of the 1^st respondent, resolved the vexed issue on when the tenure of a Governor commences when it held as follows:

 Turning to the issue at hand, there is no dispute as to the fact that the 1st Respondent became Governor by operation of Section 191(1) of the Constitution (Supra) upon the demise of the then Governor of Yobe State. Put differently, the 1st Respondent did not assume office as Governor in 2009 as a result of his election into that office. He was constitutionally “holding”, and held the office in trust for the duration of the remaining tenure of the late Governor Senator Ali Mamman. Section 182(1)(b) of the Constitution does not affect or impact on when tenure is spent-out by operation of Section 191(1) of the same Constitution. A community reading of Sections 180(1), (a), (2)(a), 181(1), 182(1)(b), 185, 186 and 191(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) reveal that the 1st Respondent had not been elected into the office of Governor of Yobe State twice prior to the holding of the Governorship election on the 11th of April, 2015 in Yobe State.

Next came Hon. Faleke V Independent National Electoral Commission (INEC) & Anor (SC. 648/2016) [2016] NGSC 84 (30 September 2016) (SC. 648/2016) [1960] NGSC 1 (29 September 2016);

The facts

In preparation for the Kogi State Governorship Election scheduled for 21st November 2015, the All Progressives Congress (APC) held primary elections on 29th August 2015 to choose its flag bearer. Several members of the party, including the late Prince Abubakar Audu and the 2nd respondent, Yahaya Bello, contested the said primary whereat the late Prince Audu emerged the winner while the 2nd respondent came second. The appellant herein did not take part in the primary election.

Having won the primary election, the late Prince Audu nominated the appellant, Hon. Abiodun Faleke as his running mate and both names were submitted to the Independent National Electoral Commission (INEC), the 1st respondent herein, by the APC as its candidates for the Governorship Election. The election was held as scheduled on 21/11/2015. At the close of the polls, the late Prince Audu/Faleke ticket was leading with 240,867 votes while the People’s Democratic Party (PDP) was in second place with 199,248 votes. However, as a result of certain electoral malpractices discovered to have occurred in 91 polling units, the 1^st respondent, relying on its Manual for Election Officials (updated version) by a Public Notice issued on 22nd November 2016 declared the results of the election inconclusive on the ground that the total number of registered voters in the disputed 91 polling units where elections had been cancelled, which was 49,953, exceeded the margin of votes between the APC and the PDP, which was 41,353 votes and could therefore affect the final outcome of the election.

Unfortunately, Prince Abubakar Audu passed on, on 22nd November 2015 before the conduct of the supplementary election. The news of his demise was communicated to the 1st respondent (INEC) vide a letter dated 23rd November 2015.  By a letter dated 24th November 2015, the 1st respondent requested the APC to substitute the deceased with a suitably qualified candidate. The APC substituted the deceased with the 2nd respondent, Yahaya Bello, who had come second in the party’s primaries and notified the 1st respondent accordingly.

The supplementary election took place on 5th December 2015 in the 91 polling units. The APC, with the 2nd respondent as its new candidate, scored 6,885 votes as against 5,363 votes scored by the PDP, its closest rival. The votes were added to the votes earlier scored by the respective parties on 21st November 2015 and the 2nd respondent was declared the winner of the election and returned as the duly elected Governor of Kogi State.

The first litigation

However, before the conduct of the supplementary election and upon the declaration by the 1st respondent that the election was inconclusive, followed by the death of Prince Audu, the appellant instituted an action before the Federal High Court in Suit No. FHC/ABJ/CS/977/2015 vide an originating summons seeking an interpretation of Sections 1(2), 179(2) (a) & (b) and 181 of the 1999 Constitution (as amended). The appellant amongst other reliefs sought the setting aside of the declaration of the 1st respondent as the duly returned candidate for the election.  His contention was that the joint ticket of late Prince Audu and himself having scored 240,867 votes, which constituted a majority of the lawful votes cast and also constituted one quarter of the votes cast in each of the 21 Local Government Areas of the State, by virtue of Section 179(2) (a) & (b) of the 1999 Constitution (as amended), the election was concluded and the late Prince Audu and himself were deemed to have been duly elected. It was also his contention that by virtue of Section 181 (1) of the Constitution, he was entitled to step into the shoes of late Prince Audu as the Governor elect. The suit was however struck out upon successful objections thereto by the respondents on the ground that by virtue of Section 285 of the Constitution, only an Election Petition Tribunal had the jurisdiction to look into his complaints.

Election Petition

In arriving at its decision, the Supreme Court construed Section 153 of the Electoral Act to mean that the  Commission may,  subject to the provisions of the Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of the Act and for its administration thereof. In simple terms, the Supreme Court accorded the exalted status of subsidiary legislation to that section.

The Court had held in part as follows:

In my view, the two lower courts held rightly therefore that upon the declaration of the Kogi State Governorship election as inconclusive there was no return made; also with the death of Prince Abubakar Audu, being the All Progressives Congress Governorship candidate for Kogi State, the outcome did not render the 240,867 votes cast in favour of the Party wasted votes nor did it make the vote accrue to the appellant and thus making him the Governor-elect in the absence of any return made in respect of the election held on 21st November, 2015. For all intents and purposes, the APC, also by extension the 2 respondent both have an unimpeded legal interest in the said 240,867 votes. See the cases of Agbaje V. INEC 4 NWLR (Pt. 1501) page 157 at 165 – 166; Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489 at 558 – 559; also, Swede V. INEC (2014) 18 NWLR (Pt. 1438) 56 at 126.

With the declaration of the election as inconclusive, and the consequent death of Prince Abubakar Audu, the appellant can no longer lay any legal right in the said votes.  This is sequel to Section 187(1) of the Constitution 1999.

The Supreme Court thoroughly deserved every commendation it got on this decision. The Supreme Court had also taken the view that INEC was within its rights to conduct a supplementary election as it is empowered by its electoral guidelines and manuals.

Next came the issue of re-run election and this is where it got interesting

In making this analysis, it is pertinent to point out that the writer has not been privileged to read the judgments of the courts. This analysis is essentially derived from excerpts from the print and electronic media and therefore, does not represent the writer’s full grasp of the judgment. The writer hereby acknowledges his limited knowledge of the arguments canvassed before the courts and the ratios thereon.

ADELEKE V INEC – how the discordant tunes started

Factual Background to the consolidated appeals:

The PDP candidate in the September 22 and 27 elections, Ademola Adeleke, filed a petition at the election tribunal to challenge the victory of Mr Oyetola of the APC. The main election was held on September 22 while a supplementary election was held on September 27 in seven polling units. The electoral commission, INEC, declared Mr Oyetola winner of the election after the supplementary poll.

Mr. Adeleke, who claimed he polled the highest number of votes in the election, approached the tribunal and invited the tribunal to nullify the election of Adegboyega Oyetola and declare him the winner of the election. The Osun Governorship  election  tribunal ruled in Mr. Adeleke’s favour and declared him the winner of the election. In a split judgment of two to one, the tribunal ruled that INEC was wrong to have ordered a rerun election. It nullified the rerun. The court also ruled that INEC did not comply with its guidelines on results from 17 polling unit The tribunal then deducted the results of both parties from the declared total of votes in the affected 17 polling units. According to the tribunal, the PDP won the election with 254,698 votes, while the APC came second with 253,452 votes. The tribunal also said that the PDP would still have won the poll even if it had opted to validate the supplementary election.

The Court of Appeal decision

But in a swift move by the Court of Appeal, the Intermediate Court ruled that “the tribunal was in patent error when it set aside the rerun.”

The appellate court, which had also delivered its verdict in a split decision of four to one, ruled that the judge who issued the majority decision at the tribunal, Peter Obiora, was absent on February 6, 2019, when a major discussion on the issue of non-compliance was tabled before the tribunal; and could therefore not have viewed the issue squarely.

Apparently dissatisfied, Mr Adeleke challenged the decision at the Supreme Court.

A seven-man panel of the Supreme Court presided over by Acting Chief Justice of Nigeria (CJN), Justice Tanko Mohammed delivered judgment on the appeal filed by Ademola Adeleke against the majority decision of the Court of Appeal on July 5, 2019.

Adeleke’s four appeals, marked: SC/553/2019; SC/554/2019; SC/55/2019 and SC/556/2019, in the main, challenged the May 9, 2019 judgments of the Court of Appeal, Abuja which affirmed the election of Adegboyega Oyetola of the All Progressives Congress (APC) as the Governor of Osun State. The Supreme Court in a split decision of 5-2 affirmed the decision of the Court of Appeal and upheld the election of the APC candidate, Adegboyega Oyetola. It also set aside the majority judgment of the Election Tribunal which had allowed Adeleke’s petition and declared him winner of the election.

Personal reflections on the judgment

It is quite revealing that the majority judgment at the tribunal did not include the Chairman’s views, who, as stated above, dissented. Justice Peter Obiorah and a fellow member gave majority decision in the Tribunal returning Senator Adeleke as winner.  The Chairman, Justice Sirajo gave a minority decision which more or less upheld the decision of INEC to conduct a rerun, relying on its guidelines. The other two members of the panel handed down serious judicial excoriation to INEC for being in breach of its own guidelines. Again, the writer would refrain extensive comments on the decision of the tribunal until he receives the full judgments. In any event, excerpts of the judgment show demonstrable errors by all the panels involved in the determination of this dispute.

At the Court of Appeal, George Ita Mbamba JCA demurred from the majority views that allowed the appeal. Paul Galinje and Akhaaas JJSC dissented from the Majority decision at the Supreme Court. Thus from the Tribunal through to the Apex court there was no unanimous decision. The writer has no recollection of any election petition case in recent times where such an incident occurred. Curiously, the majority decision of the Supreme Court failed to address the propriety of the rerun conducted by INEC. Certainly, the Supreme Court cannot just affirm the decision of the Court of Appeal without more. There should be policy considerations on the conduct of our elections going forward with particular reference to where elections have been deemed inconclusive by the electoral umpire. After all, this was the major plank of the appeal in the first place. Apparently, Akaahs, JSC appears to be the only one who addressed the issue of the propriety of the rerun conducted by INEC. Ordinarily, the court’s opinion on the issue would guide the conduct of future elections. On the contrary, INEC may have just been issued the needed judicial imprimatur on rerun elections. How soon this issue would be revisited is unclear at the moment. Otherwise, this case would portend a dangerous precedent which would take us down the oft dreaded and perilous journey into technical Justice. It whets my appetite to find out how this issue would be eventually resolved going forward.

I would conclude with the immortal words of Oputa JSC in Bello v. Oyo State (1986) 5 NWLR (Pt 45) 826 at 886: when he pilloried the penchant for technical justice are worthy of reproduction as follows:

“The picture of law and its technical rules triumphant and justice prostrate may no doubt have its admirers. But the spirit of justice does not reside in forms, formalities nor in technicalities nor is the triumph of the administration of justice to be found in successfully picking one’s way between pitfalls of technicality. Law and its technical rules ought to be a handmaid to justice…”

By-line – Steve Austin Nwabueze is a Senior Associate in the law firm of Perchstone and Graeys LP, Lagos.