On the 24th day of May 2019, the Supreme Court, in its well considered judgment, voids the APC participation in the Zamfara State election, when it held 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 votes and the required spread stand elected into the various offices that were not contested for in Zamfara State in the 2019 General Election.”

However, there have been mixed reactions from different quarters of the country challenging the said judgment. Unsatisfied with the said judgment, the professor of law and Chairman of the Presidential Advisory Committee against Corruption, Itse Sagay, in his reasoning also faulted and condemned the judgment of the apex court by making assertions and asking series of questions which were published in the national newspaper on the 4th day of June, 2010. Among the several comments and questions credited to the learned SAN include:

“The Zamfara and Rivers State judgments are a national tragedy. We should not allow our legal system to throw up such unimaginable injustice.”

“Their Lordships ought to be given an opportunity to reverse this unprecedented tragedy.

“The prefix ‘Justice’ preceding the names of Supreme Court and Court of Appeal judges is significant, for it prescribes what they stand for and what they represent: justice!”

“By this judgment, the landslide APC victories in the governorship, Senate, House of Representative and House of Assembly elections are transferred to the PDP.”

“Should the judiciary replace the electorate’s decision and install losers in office?

“Can the APC officials not be punished, for their lapses without denying the electorate their democratic rights? Should the judiciary take over the electoral rights of the electorate? Is this not a clear case of technical law completely overthrowing justice?

“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 the registered voters as the judicial electorate?

“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.”

Firstly, I must state that the learned the Professor of law conflicts his interest with the law, and attempt to introduce empathy to the interpretation of law  by condemning the Supreme Court’s judgment, describing same as “unimaginable injustice”. Having x-rayed some of the said assertions and questions quoted above, this piece responds accordingly thereto.

It is important to state that the law regulating elections in Nigeria are made by the people through their representatives at the national and state level, as the case be. This representation culminated in the establishment of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the Electoral Act, 2010 (as amended). Similarly, the Independent National Electoral Commission (INEC), as a body duly constituted to regulate the conduct of elections, draws its functions and powers under the aforesaid statutes. Therefore, the sources of law regulating election are the 1999 Constitution, Electoral Act, INEC guidelines and of course, case laws.

On this background, political party in its activities to participate in election must strictly adhere to the provisions of statutes such as the 1999 constitution and electoral act/guidelines from which it derives its purpose, powers and functions. Allowing political parties to undermine the extant electoral laws would amount to political anarchy. Therefore, the Electoral Act, 2010 (as amended) stipulates different consequences for different contravention of the law. Section 87 (9) of the Act is one of such consequences to conducts contrary to the applicable laws during party primaries. The said subsection provides that-

Where political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.

Sagay SAN, in his remarks, was quoted as saying “This major judicial disenfranchisement of the Zamfara and Rivers electorate should be reversed.” “I advise the APC legal team for a review of the two judgments.”“If the APC primaries were defective, should the electorate be deprived of their democratic and constitutional rights to vote? Is the electorate to be punished for the transgressions of party officials?”

The learned professor did not contend the findings of the apex court as regards the invalid nomination of the APC candidates for failure to conduct its primaries in accordance with the law rather, he challenged, with keen interest, the conscience of the court for not substituting the votes of the Zamfara electorates and rule otherwise. In other words, the learned professor of law condemned the apex court’s decision for refusing to overlook the APC’s flagrant disobedience of law which the judiciary is called to uphold.

I respectfully submit that the electorates, and by extension, the people, who gave mandate to their representatives at the National Assembly to enact the Electoral Act, lack the power to support any political party fielding any candidate against the provisions of such Act. Therefore, to recon with the electorates’ votes for unlawful candidates into power, will amount to the electorates approbating and reprobating at the same time. Yes, the electorate may have voted in ignorance but this is not an excuse in law. It may be human to empathize with the Zamfara State electorates’ wasted votes, but to hold that such votes are enough to cure the invalid nomination, is to set a bad precedent, encourage disobedience of law and order and on the long run, strengthens the will powers of political gladiators and godfathers to prevail.

The Zamfara State electorates were never disenfranchised because they were allowed to participate and casted their votes throughout the election. However, the “valid votes” of some electorates is not a panacea to cure the unlawful nomination of the APC candidates. The law is settled that a party cannot be allowed to benefit from his own wrong. With due respect, the phrase “judicial disenfranchisement” as coined by the learned professor is legally unacceptable and the attempt to introduce same should immediately be discouraged. This is because the judiciary serves to interpret and protect the extant laws and not be driven by emotions to acquiesce unlawful conducts. If emotions were allowed in the interpretation of laws then, our laws become completely impotent and I need not emphasize the magnitude of its consequences.

The repetition of “validly nominated” and “duly nominated” as contained in the relevant provisions of the Act, particularly sections 38, 39, 40, 41, 110 and 138, emphasizes the importance of the interpretation of the phrases to the letter, and to that extent, cannot be overlooked or substituted for “valid votes” of some electorates. The failure of the leadership of APC in Zamfara State to toll the requisite procedure for valid nomination of candidate for the election suggests that the party did not field any candidate for the general election. It is unjust for an unlawful candidate to benefit in his own wrong against a lawful candidate who satisfied the constitution and the Electoral Act because he who seeks equity must do equity and he who seeks equity must come with clean hands.

I have no doubt that the learned professor knows the meaning of disenfranchisement but has either allowed his partisanship and/or interest to becloud his legal reasoning under the guise of sympathy for the Zamfara state electorates’ wasted vote. Remember that disenfranchisement of electorates is not even an issue for determination before the court thus, the Zamfara electorates were given the opportunity to cast their votes and for their choice of candidates unfortunately, the ignorance of the electorates as regards the invalid nomination their candidates is no excuse in the circumstance.

On reference to section 140 of the Electoral Act, 2010 (as amended)

It is important to mention that qualification of candidate is different from valid nomination of candidate. The yardstick for their assessment is different but the purpose is driven towards the same goal. While qualification of candidate is largely governed by the provisions of the Constitution, valid nomination of candidate is governed by the Electoral Act and INEC Guidelines.

The learned silk referred to Section 140 of the Electoral Act and was of the view that the apex court erred in law when it transferred the victory of the APC candidates to PDP candidates instead of nullifying same; while some others also agree that the court should have ordered a fresh election in accordance with the said section. With due respect, I disagree with these submissions. It must quickly be pointed out that the section 140 (2) only covers where an election has been nullified on ground that a person who obtained the highest votes at the election was not qualified to contest the election.  The section envisages a situation where a candidate is validly nominated by a political party but does not satisfy the requisite qualification to contest for election.  In that case, the court or tribunal shall order fresh election. However, the section does not cover a situation where a person who obtained the highest votes at the election was invalidly nominated hence, section 140 (2) is not applicable in the instant case.

Assuming that a petition was even filed before a tribunal in its original jurisdiction, or the Court of Appeal, either in its original or appellate jurisdiction, I still hold the view that section 140 (3) would have equally been enough to declare the PDP candidates as winners of the election if one of the questions for determination is whether APC candidates validly participated in the election and the court/tribunal found the answer to be in the negative. Section 140 (3) of the Electoral Act, 2010 (as amended) provides as that-

If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid vote cast at the election and satisfy the requirement of the constitution and this Act.

The wordings of the above cited provision mean that a tribunal or court can only declare a candidate who is validly elected by majority votes as winner in an election. I am of the considered view that the word “and” as used in the section is conjunctive. See the case of Kayode v The State (2008) 2 All FWLR (pt.402) 1014 at 1032. Therefore, the two conditions which must be satisfied conjunctively under the said section are that the candidate- (a) must scored the highest number of votes and (b) must have satisfied the constitution and the Electoral Act. Nullification of election is not envisaged as a consequence that a tribunal or court can order, given the existence of the circumstance contemplated under subsection (3) thereof, notwithstanding the provision of subsection (1). In other words, nullification of election in this circumstance will not be an option if the court or tribunal found that an acclaimed winner did not participate in the election let alone crediting majority “valid votes” in his favour. To nullify and conduct fresh election at the instance of a defiant party in such circumstance, is to render the consequence stipulated under section 87 (9) of the Act ineffective. It trite that courts cannot permit or allow any party or person, to benefit from his own wrong.

Furthermore, it is noteworthy that the apex court does not have original jurisdiction on election petitions and cannot give orders which are within the exclusive powers of the tribunal and the Court of Appeal. However since the matter before the Supreme Court is not to determine the validity of the election, it lacks the jurisdiction to nullify same. The apex court dismissed the APC’s appeal in its judgment on the ground that APC violated the mandatory provisions of section 87 of the Electoral Act, 2010 and that the State Executive Committee of the APC in Zamfara State lack the power to conduct primaries and submits list of candidates to INEC and therefore held that the APC candidates participation at the elections were invalid and illegal. Section 87 (1) provides that “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions”. The mandatory compliance to section 87 of the Act is not negotiable. Therefore, the intendment of the legislature can be inferred from the use and consistency of the word “shall” throughout the provisions of the subsections thereof.

From the evidence before the apex court, the leadership of APC failed to conduct primaries to nominate candidates in Zamfara State for the general election as required by law, it means that the party did not field any candidate for the said election, and to that extent, did not contest in the election held on the 9th March, 2019 in Zamfara State. With due respect, it is trite that one cannot put something on nothing and expect it to stand. See the cases of Saleh vs. Monguno & Ors (2006) 7 SC (Pt. 11) 121 and Macfoy vs. UAC (1961) 3 WLR 1409. That being the case, it can safely be concluded that the APC candidates purportedly declared winners of the election were not validly elected by majority votes cast because they are deemed not to have participated in the election at all and no vote could have validly been allotted to non existing candidates. Hence, the court was apt by declaring the PDP candidates who scored the highest number of valid votes cast at the election and satisfy the requirement of the constitution and the Electoral Act, winner of the election.

If the learned professor has described the judiciary’s effort and responsibility to do justice as “undemocratic calamity”, “unimaginable injustice”, “shocking the conscience of humanity”, how best would he describe the APC’s contravention of the extant laws? Therefore, I do not subscribe to the judgment of the apex court in the aforesaid election being described as such. No lawyer is expected to cast aspersions or be resentful in his remarks to court judgment regardless of perceived errors rather, an aggrieved party may appeal or review same (as the case may be) within the available legal options.

Having attained the peak of the profession, the learned silk should exercise caution and tread softly. It is not out of place to criticize a court judgment but such criticism must be constructive on grounds of law and not sentiments. Consequently, I advise the learned SAN in his “fight against corruption” not to allow his furious interest, personal or political, to desecrate the most revered court of the land by making resentful comments to describe the efforts of the learned justices of the court.

In my opinion, the Supreme Court decision in this case is apposite to give effect to our electoral laws with a view to indoctrinating intra and inter party democracy and regulating the activities of political parties, being the only platform through which Nigerian leaders emerge in elective positions. It is a national concern which goes beyond political or personal interest hence, it is ridiculous to ascribe the role of the judiciary to do justice as a “national tragedy” and/or its responsibility to uphold the law as an “unimaginable injustice”.

A. E. ATOLAGBE ESQ.
Barrister and Solicitor

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