In two recent cases, the Nigerian Judiciary, particularly the Supreme Court as the Apex Court, has taken over the role of electors and denied the real electorate either of their right to vote, or set aside clear, unchallengeable voters’ decisions and handed over victory to the clear looser.
In Rivers State, the APC electorate was deprived by the Judiciary of their right to vote. The result was that the PDP was effectively returned unopposed. The effect of this is that the PDP not only has a “walk in” Governor, but all the members of the Rivers State House of Assembly, all the members of the National Assembly (Senate and House of Representative) are 100% PDP, in a State where the voting preference of the electorate is about 50:50.
In Zamfara State, there was an election in which the APC had a landslide victory over the PDP, in the Governorship, Senate, House of Representatives and House of Assembly elections. In a decision handed down on Friday, 24th May, 2019, the Supreme Court transferred all the victories of the APC to the PDP. Thus, the PDP Governorship candidate who lost woefully to the APC candidate was in effect, declared Governor by the Supreme Court. In other words, the Supreme Court has set aside the decision of the electorate and installed the losers in both the Executive and Legislative Arms of Government in Zamfara State. The verdict of the electorate has thus been set aside and replaced with that of the Supreme Court.
This is the latest bizarre twist in Nigerian Democratic practice.
To further bring home the gravity of the situation in the Governorship election in Zamfara State, the APC candidate scored well over 500,000 votes whilst the PDP candidate scored, just over 100,000 votes. The APC won all 3 Senate seats in the State, 7 House of Representative seats and 24 State House of Assembly seats. By this judgment, the landslide APC victories in the Governorship, Senate, House of Representative and State House of Assembly are transferred to the PDP.
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? Should the Judiciary replace the electorate’s decision and install losers in office? 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? 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.
In dealing with any case before it, the primary concern of a Judge should be the achievement of justice. If a mechanical application of the law to facts would result in injustice, then a Court must avoid that course.
The correct approach to the adjudicating of matters before a Court was laid down by the Supreme Court itself in 1987, in Engineering Enterprise Contractor of Nigeria v. Attorney-General of Kaduna State [1987] 1 NSCC 601 at 613 in which Eso, JSC representing the views of the Court laid down this historic principle.
“One stream that permeates all these decisions and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the court. I am not saying that ex debito Justiciae by itself is a cause of action. It is to be the basis for the operation of the court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.”
The sum total of the recent decisions of this court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than when he approach the court.”
In Aliu Bello v. Attorney-General of Oyo State [1986] 5 NWLR (Pt. 45) 828, the Supreme Court Panel composed of Hon. Justices Chukwudifu Oputa, JSC, Muhammed Bello, JSC, Karibi-Whyte, JSC, Aniagolu, JSC, Coker, JSC, Alfa Belgore, JSC, and Saidi Kawu,JSC, declared as follows:
“It was contended that invoking the general principle ubi ius ibi remedium is a clear demonstration that appellants have left the Court at large to devise a remedy. I have already stated that the writ of summons and the statement of claim sufficiently discloses that the claim can be founded under the Torts Law. Even if this is not the case, I think the Court has attained a stature in the pursuit of justice that a claimant who has established a recognized injury cannot be turned back on the ground that he has not stated the head of law under which he was seeking a remedy”
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.
The Court also adopted a statement made by Lord Denning M. R. in Packer v. Packer [1954] P. 15 at p. 22, thus:
“What is the argument on the other side? Only this, that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still, whilst the rest of the world goes on and that will be bad for both”
In The State v. Gwonto [1983] 1 S.C.N.L.R., 142, this Supreme Court declared thus:
“The Court has for some time now laid down as guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.”
And in the earlier case of Chinwendu v. Mbamali, [1980] 3-4 S.C., 31, the same Court declared:
“Care must be taken always, not to sacrifice justice on the alter of technicalities. The time is no more when disputes are dealt with rather on technicalities and not on merit.”
This general theme of placing justice above technicalities was noticeable in the practice of the Supreme Court right from the early days of the 1979 Constitution. Thus, in Okeowo v. Migliore, [1979] 11 S.C. 138, Aniagolu, JSC, declared that “the laws of our land enjoin us that while respecting procedural regularity, we must dosubstantial justice, with power to make amendments which we deem fit or not to make as the occasions demands”
What these legal giants were saying again and again, is that the Supreme Court is specially endowed with the power and authority to do JUSTICE and to ignore law when it is technical and would create injustice, and to avoid at all cost a mechanical approach to the interpretation of the law.
Now, has justice been served in Rivers and Zamfara States? No! In one case innocent electorate in their hundreds of thousands were prevented from voting for their party by judicial order. In Zamfara, where voting took place, the verdict of the electorate was taken away from the victorious party and awarded by the Judiciary to the woeful losers. In the next four years, Zamfara State will be governed by a party and politicians rejected by the electorate. This indeed shocks the conscience of Nigerian humanity.
I have so far omitted a discussion on the provisions of Section 140(1) – (3) of the Electoral Act, which prohibits any Court from declaring a loser of an election elected even if the person with the highest votes was not validly elected. That Section provides as follows:
“140. – (1) Subject to subsection (2) if this section, if the Tribunal or the Court has as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.
(2) Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election.
(3) 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 votes cast at the election and satisfied the requirements of the Constitution and This Act.”
However, I am not interested in the provisions of the Electoral Act 2010. I am only deeply concerned and interested in the fundamental and peremptory principle of Justice. No Judge should announce his judgment until he is satisfied thatJustice has been served, no matter how strong the pull of mechanical and technical law.
The Zamfara and Rivers State judgments are a national tragedy. We should not allow our legal system to throw up such unimaginable injustice. This major judicial disenfranchisement of the Zamfara and Rivers electorate should be reversed. I advise the APC legal team to apply for a review of the two judgments. Their Lordships ought to be given an opportunity to reverse this unprecedented tragedy.
The prefix “Justice” preceding he names of Supreme Court and Court of Appeal Judges is significant, for it prescribes what they stand for and what they represent, JUSTICE!
*Professor Sagay (SAN), Chairman of the Presidential Advisory Committee Against Corruption (PACAC) writes from Lagos
