Re: “The Judiciary As Alternative Electorate.” Awomolo (SAN) Replies Prof. Sagay On Supreme Court Verdict Disqualifying APC In Zamfara State

A Senior Advocate of Nigeria, Asiwaju Adegboyega Solomon Awomolo SAN, has said that a candidate whose candidature is invalid and void cannot claim to have lawful votes.

The learned silk made this statement in a rejoinder to Prof. Itse Sagay’s article, titled, ”The Judiciary As Alternative Electoral”.

Faulting the position of his fellow Learned Silk, he said that the Judiciary is not the maker of the law but the Parliament, and that the Court can not interpret the law to suit any party.

RE: “THE JUDICIARY AS ALTERNATIVE ELECTORATE.” A REJOINDER

The two recent decisions of the Supreme Court in the cases of intra party disputes of the All Progressives Congress(APC) in Rivers State and Zamfara State have again brought the Supreme Court into the spot light and have attracted diverse commentaries.

Indeed the public statement of Professor Itse Sagay, a Senior Advocate of Nigeria (SAN) and the Chairman of the Presidential Advisory Committee on Corruption, a creation of the Executive arm of government, published in the Nation newspaper or Tuesday 4th June 2019 is seen in many quarters as a clear reflection of the inner caucus of the Executive arm of Government.

The learned Senior Counsel believed that in the case of Rivers State, “the Supreme court effectively returned unopposed The Peoples Democratic Party (PDP) and that the APC electorates in Rivers State were deprived of their rights to vote.”

For Zamfara state, “the Supreme Court transferred all the victories of the APC to the PDP”. He regarded the decision of the Supreme Court “bizarre” in Nigeria Democratic practice.
The fulcrum of the learned professor’s criticism of the judgment is reflected in the few questions he posed. He asked:

I. “if the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote?

II. Is the electorate to be punished for the transgressions of party officials?

III. Should the Judiciary place the electorate’s decision and install losers in office?

IV. Could the Judiciary not have drawn on the deep recesses of its intellectual capacity, authority and its inexorable commitment to justice, to prevent this undemocratic calamity?

V. Can the APC officials not be punished, for their lapses without denying the electorate their democratic rights?

VI. Should the Judiciary take over the electoral rights of the electorate?

VII. Is this not a clear case of technical Law completely overthrowing justice?

VIII. Have the members of the Supreme Court not achieved a level of creativity and authority to provide a solution without burying democracy and taking over from registered voters as the judicial electorate.”

He concluded his thought on the decision of the Supreme Court in these words “if this judgment had been an international one, it could have been described as “shocking the conscience of humanity” in this case, it shocks the conscience of Nigerian humanity.”

For the education of many Nigerians who read the deep opinion of the respected teacher of law but not the judgement of the court, I will in this rejoinder make a copious reproduction of the relevant parts of the judgement.

For the avoidance of doubt, the judgment of the supreme Court was in Appeal No. SC/344/2019 between All Progressives Congress (APC), Inuwa Abdulkadir 1st National Vice Chairman of North West Zone of APC as appellants Vs. Senator Kabir Garba Marafa and 180 others as respondents delivered on 24th May 2019.

The learned Justices who delivered the judgement were Hon. Justice Ibrahim Tanko Mohammad, the Acting Chief Justice of Nigeria, Hon.

Justice Olukayode Ariwoola, John Inyang Okoro, Paul Adamu Galumje and Uwani Musa Abba Aji. Justices of the Supreme Court, Few of our finest characters and best legal brains.
The fact of the case as captured in the certified true copy of the judgment are as follows.

“As part of its preparation towards the conduct of 2019 general elections, INEC prepared a time table in which it set out schedule of activities leading to the general elections. One of the activities was a directive to all the political parties to conduct their primary elections and submit the names of their candidates for the general elections to it between 18th August and 7th October, 2018.

In obedience to the directive of INEC, the National Working Committee of the first Appellant in line with paragraph 20 (a)(b) and (c) of the All Progressives Congress (APC) guidelines for the nomination of candidates for the 2019 general elections, set up a 7 member election committee headed by Engineer Abubakar Fari to conduction its primary elections in Zamfara State on the 3rd of October, 2018. On the 3rd of October, 2018 the primary elections which started and continued successfully in some areas was later halted and suspended by the committee due to escalation of violence and protests

The National Working Committee of the 1st Appellant rescheduled the primary elections to the 7th of October, 2018 and appointed a different committee, this time under the leadership of Major General Abubakar Mustapha Gana Rtd to conduct the primary elections. Due to tension and the shortage of time, the election could not hold. The committee suspended the election.

The 7th of October, 2018 was the closing date for party primaries and submission of names of candidates. This being so the State Government directed the State Party Executives to conduct the primaries at all levels before 12.00 midnight of 7th October, 2018.

This was purportedly done within the short period and the list of those elected were submitted to INEC. A letter from the Acting Secretary of INEC to the 1st Appellant stated clearly that for its failure to conduct primary elections in Zamfara State and submit list of candidates for the general elections within the stipulated period it has barred itself from fielding candidates for the Governorship, National Assembly and State Assembly Elections in Zamfara State for the 2019 General Elections.

Being apprehensive that the list submitted by the State party Executive to INEC may not be approved, the 141th -178th Respondents in this appeal, as plaintiffs at the trial court at paragraph 16 of their statement of claim dated and filed on the 30th of October, 2018 claimed the following reliefs:-

“a) An order declaring as lawful and valid the primary election conducted by the APC (herein plaintiff’s party) under the supervision of the 3rd Defendant and security agents on the 3rd and 7th for the purpose of producing candidates to vie forvarious election office which produce the plaintiffs under the platform of the 1st Defendant.
b) A declaration that any decision or steps taken toreverse the result of the primary election duly conducted on the 3d and 7h day of October, 2018 and monitored by the 3rd defendant is or will amount to a nullity, void and of no effect whatsoever.
c) A declaration that the 1st Defendant is bound torecognize, accept and forward to the 3rd Defendant the list of candidates that emerged winner in theGovernorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State held on the 3rd and 7thOctober, 2018 and monitored by the 3rd Defendant.
d) A declaration that the 3rd Defendant cannot refuse or shut out the 1st Defendant from presenting forwarding to it the list of candidates that emerged winners in the Governorship, National and State Legislative Houses Primary Elections in Zamfara State same having been conducted on 3rd and 7th October, 2018, before the deadline set by the 3rd Defendant for Political Parties to hold their Primary Elections.
e) A declaration that the 3rd Defendant cannot refuse to accept and publish the list of candidates that emerged winners of the Governorship, national and State legislative Houses Primary Elections of the 1st Defendant in Zamfara State submitted to it for the 2019 General Election
f) An order of this Honourable Court directing the 3rd Defendant Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State held on the 3rd and 7th October,
2018 and monitored by the 3rd Defendant
g) An order directing the 3rd Defendant to accept and accord due recognition to the list of candidates that emerged winners in the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State held on 3rd and 7th October,
2018
h) An order mandating or compelling the Defendants to recognize and accept the list of candidates that emerged winners in the Governorship, National and State Legislative Houses Primary Elections of the 1st Defendant in Zamfara State held on 3rd and 7th October, 2018
I) An order directing the Defendants to recognize only the result of the primary election of the 1st Defendant held on the 3rd and 7th of October, 2018 in Zamfara State
J) An order of perpetual injunction restraining the Defendants either by themselves, through their lawful agents, privies or assign from taken (six taking) any steps towards cancelling, rejecting the result of the primary election held on 3rd and 7th October, 2018 and monitored by the 3rd defendant.
K) The cost of filling and prosecuting this suit.”

(These are preemptive claims, Plaintiffs being fully aware of the law against them and the INEC position therein)

The trial court entered judgment in favor of the plaintiffs and directed INEC to accept the list of names of successful candidates of the APC for the Governorship, National assembly and State House of Assembly elections produced and submitted by Zamfara State Chairman and the Secretary of the APC.

The 1-140th Respondents appealed to the court of appeal and meanwhile INEC conducted elections and the APC candidates “won by majority of the landslide figures.”

The Court of Appeal allowed the appeal and set aside the Judgement of the trial Judge “When the case came up before the Supreme Court, learned counsel for all the parties argued their briefs. The Supreme Court – in its Judgment dismissed the appeal because

(1) APC violated and disregarded mandatory provisions of Section 87 of the Electoral Act 2010.
(2) The State Executive Committee of the APC in Zanfara State had no power to conduct primaries and forward the names of the party candidates to INEC, therefore the APC candidates participation at the elections were invalid and illegal.

In 1999 when Nigeria returned to constitutional democracy, the leadership of all the registered Political parties was in the hands of former political gladiators of the 1st, 2ND and 3rd Republic. They were former Ministers, Governors, political office holders and party chieftains. In fact, the practice of all the political parties reflected lacked of internal democracy, discipline, loyalty and party supremacy.

Indeed, nominations for elective positions were at the whims and caprices of the godfathers. Nominations of candidates for elective positions were arbitrarily changed depending on the mood of party leadership. The Parliament amended the Electoral Act to insist that to change a nominated candidate, the party must swear to an affidavit to show “cogent and verifiable reasons” for changing the nominated candidates.

The judiciary and the Supreme Court, in particular maintained the established principle that the nomination of candidates for an election is an internal affair of a political party and the Courts should have nothing to do with it. The amendment to the Electoral Act was given Judicial approval and enforcement until 2007 when the Peoples Democratic Party (PDP) in Rivers State, changed the nomination of Rt Hon. Rotimi Amaechi few days to the election and substituted him with Chief Celestine Omehia.

The Supreme Court in exercise of its powers as final court in the Land and in doing Justice restored Rotimi Amaechi as Governor of Rivers State even though it was after the election. That decision was criticized as usurpation of the rights of the electorate in Rivers State who voted for Chief Omehia and not Amaechi.

The parliament amended the Electoral Act to avoid a repeat of the Rivers State experience, which was replicated in few States. It enacted Section 87 of the Electoral Act with a view to upholding internal democracy, fairness, party discipline, loyalty and party supremacy. The section states thus:

87.-(1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries
(3) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members ofthe party
(4) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below
(a) …………
(i) ………
(ii) …………
(iii) ……………
(b) in the case of nominations to the position of Governorship candidate, a political party shall, where they intend to sponsor candidates
(i) hold special congress in each of the Local Government Areas of the States with delegates voting for each of the aspirants at the congress to be held in designated centres on specified dates
(ii) the aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and aspirant’s name shall be forwarded to the Commission as the candidate of the party for the particular State
(c) in the case of nominations to the position of a Senatorial candidate, House of Representatives and State House of Assembly a political party shall where they intend to sponsor candidates-
(i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates votingfor each of the aspirants in designated centres on specified dates
ii) The aspirant with the highest number of votes at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party and
(d) ………… (i) …………. (ii) …………
(5) ………..
(6) ………..
(7) ………..
(8)………..
(9) Where a political party fails to comply with the provisions of this Act in the conduct ofits primaries, its candidate for election shall not be included in the election for the particular position in issue. (Underline ours for emphasy)

The courts, particularly the Supreme Court gave judicial authority to this provisions political parties have in subsequent elections complied strictly with the law, and those who violated the law had their candidates nullified and the political parties with the highest votes were made to replace nullified candidates.

In the case under discuss, there is established breach and disregard for the provisions of the statute by the appellants due to internal indiscipline, disregard for party constitution, hierarchy and authority. There was manifested rivalry in both Rivers and Zamfara States by factious and irreconcilable differences that robbed the party of its success at the 2019 general election, except that of the President.

The learned Professor, with respect, argued as if judgment of the Supreme Court should be for the purpose of scoring debating points, with a view to achieving public applause and political patronage on the theory of justice in a democracy’

Nigeria is operating a Constitutional democracy where obedience to the Constitution and the laws of the National Assembly must be held sacrosanct and none should be persuaded by sentiment and theory of the concept of democracy, that has no place in the law.

The decision of the Supreme Court concluded with an order to the effect that “A party that has no candidates in an election cannot be declared the winner of the election. This being so the votes credited to the alleged candidate of the 1st Appellant in the 2019 general election in Zamfara State are wasted”.

The candidates of parties other than the 1st Appellant APC with the highest number of votes and the required spread stand elected into the various offices that were not contested for in Zamfara State in the 2019 General Election”.

The learned Professor did not throughout his statement fault the finding and conclusion of the court. The Supreme Court as the final court has the power to make consequential Orders to give effect to the judgment of the court.

Zamfara State has a population of over 3 million people with almost 2 million registered voters. It cannot be stated that all the 2 million registered voters in the state belongs to only one party. It cannot also be argued that all the registered voters are members and sympathizers of APC.

Every citizen of Zamfara State deserves to be governed in accordance with the Constitution of the Federal Republic of Nigeria 1999 as amended and the laws of the National Assembly.

The APC as a political party is bound by the Constitution and Laws of the National Assembly. Participation in an election and fielding candidate for offices in the 2019 General Election was a choice and the Supreme Court cannot force the party to respect the law or enforce discipline and decorum in the party.

The Electorates in Zamfara State were not deprived of their constitutional rights to vote. Those who voted for APC candidates had options and were not deceived or misled because APC leadership and their supporters in the State knew of the violation of mandatory provisions of the law. they knew the fruits of their decision, hence they rushed to court with preemptive prayers hoping the courts will cover their illegality.

The Judiciary did not replace the electorates’ decision and install losers on Zamfara citizens because the APC primary conducted by the State Executive Committee of the party, has s been pronounced upon in numerous cases as a nullity. The law has become established that where voters in the exercise of their franchise chose a candidate whose standing is void in law, such votes are regarded as thrown away. A candidate whose candidature is invalid and void cannot claim to have lawful votes. The votes cast for APC candidates were unlawful votes so the candidate with majority of lawful votes is bound to be declared the winner.

Learned Professor perhaps wished the Supreme Court, on the ground of theory of democracy had reversed its rules, depart and walk away from its well established principles, that Section 87 of the Electoral Act must be obeyed. The choice of the Zamfara State electorates which the law regarded as void cannot be a foundation for any benefit.

See EMINEKE V. D.P.P. (2012) NWLR (PT. 1315) 556 AT 594, 600, 602.,EMEKA V. OKADIGBO (2012) 18 NWLR (PT. 1331) 55 AT 88
The Judgement of the Supreme Court, is no doubt a corrective policy decision like they did in Rt. Hon. Rotimi Amaechi’s case and many others. Judgements of the Supreme Court address policies, institutional and not individuals. Corrective and retributive justice is an aspect of justice and the Supreme Court has never failed in this respect.

The learned Professor referred to Section 140(1), (2) & (3) of the Electoral Act (2010). With respect, that provision of the Electoral Act is relevant only in the Election Tribunal where the Court of Appeal is the court in respect of Presidential Election Petitions while the National Assembly, Governorship and House of Assembly Petitions are tried at the Tribunal. The Justices of the Supreme Court know the law sufficiently to have had no regards to the provision of Section 140 of the Electoral Act 2010. The facts of the case do not justify an order for fresh election; indeed such order would have been contrary to express provision of the Constitution.

Nigerians are fully aware that since the learned Professor became the Chairman of the Presidential Advisory Committee on Corruption, he has constantly found nothing good in the Judiciary and the Supreme Court in particular where he believes there is “corruption” even though none has been prosecuted or convicted by a court of law for corruption.

The Judiciary is not the makers of the law, that is the function of the Parliament. No court is permitted to interprete the law to suit any of the parties. The court is not creative as to make its decision suit the convenience of the parties in litigation. Indeed the Supreme Court in the case of Rt. Hon. Rotimi Chibuike Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 207 made very profound statement on the beauty and ramification of democracy.

Hon. Justice Dahiru Musdapher, JSC of blessed memory spoke the word of the court he said “Democracy’s world is rich and multifaceted Democracy should not be viewed from a one dimensional vantage point. Democracy is multidimensional, it is based both on the centrality of laws and democratic value and at their center human rights. Indeed democracy is based on every individual enjoyment of rights of which even the majority cannot deny him simply because the power of the majority is in its hands.

Roland Dworkin in a Bill of Rights for Britain 1990 pages 35 – 36 stated “ — true democracy is not just a statistical democracy, in which anything, a majority or plurality want is legitimate for that reason, both communal democracy in which majority decision is legitimate only when it is a majority decision within a community of equals. That means not only that everyone must be allowed to participate in politics as an equal through the vote and through the freedom of speech and protest, but that the decision must treat everyone with equal concern and respect that each individual person must be guaranteed. Fundamental civil and political right no combination of other citizen can take away no matter how numerous they are or how much they despise his or her race or morals or way of life” pages 339-340

With respect, the learned professor was right when he said “the key word here is that the court has attained a Stature in the pursuit of JUSTICE to provide a remedy even if one did not already exist.”

That proposition is not new, indeed the Supreme Court found appropriate remedy in Amaechi’s case where neither the Constitution nor Electoral Act provided one.
Hon. Justice Oguntade, JSC had this to say:

“this court and indeed all courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure that citizens of Nigeria, high and low get the justice which their case deserves. The powers of the court are derived from the Constitution not at the sufferance or generosity of any other arm of the Government of Nigeria. The judiciary like all citizens of this country cannot be a passive on- looker when any person attempts to subvert the administration of justice and will not hesitate to use the powers available to it to do justice in the case before it.”

One can read from the lines that the learned Senior Counsel intends that because APC had smuggled itself to contest the election, won by “landslide victories” it should retain its candidates in offices and thus be protected from the consequences of the party’s unconstitutional and invalid conduct. That in my view would have been inconsistent with the principle of rule of law, constitutional democracy and Justice.

Hon. Justice Pius Aderemi JSC (of blessed memory) in Amaechi’s case had a word for that direction of thought, He said :

“…..it is true that in modern democratic societies, judges occupy a privelleged position. Let me say that that privilege springs from public recognition that democratic government and society as a whole can only function fairly and properly within a framework of laws, justly, fearlessly and fairly administered by men and women who have no obligation save to justice itself. I hasten to enter a caveat, and it is that it does not of course mean that judges are licensed to do exactly as they like; quite opposite. They must allow themselves to be guided by well tested principles so fashioned that lead to justice…”

With respect, one fails to see the relevance of the argument of technicality, rather we see substantial justice having its roots on the clear facts of this case. The mandatory provision of section 87 of the Electoral Act and the trite law that only the National Chairman and Secretary of a political party that can submit nomination of the party candidates not state chairmen or such subordinate office, stuck to by the Supreme Court promote substantial justice.

Justice is no doubt an abstract concept and it is easier to describe than to define it. The formula of justice that has spanned world literature from Homer, through Aristotle and the Greek thinkers, Cicero, Antrose Augustine and Roman Jurists.

Justician Pandects equated justice with equity which is defined as Honeste viverer, alterum non laedere suum cuique tribuere – to give honestly, not to hurt another to give each his due.

Justice in my view, means justice to all political parties, Justice to the people of Nigeria whose taxes were spent on law makers who enacted the Act, which must be obeyed by all without exception, the INEC who enforce and carry out the laws.

Justice to all the people of Zamfara and Rivers States whose political rights were capriciously violated by the politic gladiators whose frittered away their votes by disobedience to the Constitution and the law. Justice of course to the Judges and Justices of our courts who are the greatest living assets of our race without whom our democracy would have been truncated by the politicians since 1999 when Nigeria returned to Constitutional democracy.

On the whole the lamentation of the learned Senior Counsel on principle of democracy, justice and political rights with respect, have no root in the facts of this case. The opinion expressed on the judgments is mere academic exercise, theories on justice, without relevance to the well thought out decision based on Constitution, Statute, basic principles of the Rules of Law in an egalitarian society.

Hon. Justice Chukwudifu Oputa, JSC counsel on the quality of fairness thus:

“ The quality of fairness and impartiality allow the judge to turn the wheels of justice objectively and not subjectively. In the chambers of the Legislature or the Executive, it may be necessary and at times politically expedient to listen to the sirens of power and influence. But in the halls of justice, the battle is against expediency, it is a battle for protection from power- the power of the Executive, the power of the police, the power of prosecution, the power of big business, the power of the wealthy status and influence, and the most subtle of all, the power of the majority”.

The statement believed that “the Zamfara and Rivers State Judgements are a national tragedy which should not be allowed to throw up the unimaginable injustice”. There was a call for application for a review of the two judgements.

It is conceded that every court has the power to set aside it’s decision where the judgement had been obtained by fraud. However, the attitude of the Supreme Court to review its decision has never been for the asking. This is because, where a Court has decided an issue and the decision of the court is truly embodied in some judgement or order that it has been made effective, then the court cannot re-open the matter and cannot substitute a different decision in its place, to alter it must in those circumstance invoke such appellate jurisdiction as may apply.

The Supreme Court restated the law succinctly in the case of TOMTEC (NIG) LTD VS. F. H. A. (2009) 18 NWLR (Pt 1173) 358 @ 382, it was stated thus:

“Courts of record have the inherent jurisdiction to set aside their judgments/decisions/orders, in appropriate cases, or under certain circumstances, which include when:
(a)the judgment is obtained by fraud or deceit either in the court or of one or more of the parties;
(b)the judgment is a nullity:
(c) it is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it:
(d) the judgment was given in the absence of jurisdiction;
(e) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication;
(f) where there is fundamental irregularity.

I end, as I borrow and adapt the words on Marble of Sir, Wiston Churchhill, which I believe reflect the popular feeling of Nigerians on the Nigerian Judiciary as the last hope of the common man.

“There is nothing like them in our land. They have to interprete the law according to their learning and conscience. They are distinguished from great officers of the State and other servants of the Executive high or low and from leaders of Commerce and Industry. The Nigerian Judiciary with its traditions and records is one of the greatest living assets of our race and people and its independence part of our message to the ever growing world that is rising swiftly around us”.

They deserve our respect and appreciation.

Asiwaju Adegboyega Awomolo, SAN,
6th June 2019