Essay
By Prof Mike Ozekhome, SAN
Introduction
ERROR is becoming a norm in Nigeria. It has become our tradition. We have become a country of oddities; a country of one error per minute! We have become unshockable. Sadly, we spend the bulk of our time discussing inanities that ordinarily should not be heard in any serious forum. When some of us speak out boldly about these issues, some bootlickers, fawners and ego masseurs who seek favours from government of the day accuse us of partisanship; or of attacking national leadership; or Justices of the Court. Last year, in Kano State, for example, we read about a certified True Copy of a judgment of the Court of Appeal, affirming a judgment and simultaneously overruling it at the same time. The said judgment not only created great uncertainty, it also cast aspersions on the Judiciary and the legal profession, which are expected to set professional standards for others to follow. The earlier we addressed, boldly, these unfortunate anomalies emanating from our courts, the better for the legal profession and the entire Judiciary. Those who know or follow my works as a constitutional lawyer, human rights activist and Pan- Nigerian very well know that I defend the Nigerian judiciary passionately with every fiber in me. This is because the judiciary is the only and last hope of the common man and woman. But we must be careful not to allow sentiments becloud our true sense of judgement and thus get consumed by the ricocheting consequences. Some persons insist we are still learning. I thought learning leads to improvement? Like late legendary proverbsmith, Bashorun M.K.O. Abiola once metaphorically and laconically asked, if it takes a man 20 years to learn madness, how many years will he require to practise it? The focus of this write-up concerns not only about the serious implications of the recent Supreme Court judgement in Mutfwang & Anor v. Nentawe & Ors; SC/CV/1179/2023, (unreported), delivered on 12th January, 2024, to the effect that the nomination and sponsorship of a candidate are pre-election matters which constitute internal affairs of political parties, but also how the judgement highlights the grave injustice done to about 22 Legislators of Plateau State whose victories were snatched by the Election Tribunals and the Court of Appeal and handed over on a platter of gold to the APC losers. This is one judgement, aside the cases of Sen. Hope Uzodinma & Anor v. Rt. Hon. Emeka Ihedioha & Ors (2020) JELR 86967 (SC) and APC V. Sherriff & Ors (2023) LPELR – 59953 (SC), that have sparked national debates and which will never melt away in a hurry.
The article seeks to know how the said Supreme Court judgment in respect of the gubernatorial election in Plateau State re-iterating that the nomination and sponsorship of a candidate for any election is a pre-election matter and an internal affair of a political party, impinged on the earlier judgements of the intermediate court nullifying victories of 22 PDP Legislators and handing them over to APC Legislators.
THE BACKGROUND
Recall that the Court of Appeal had held that the failure of the Peoples Democratic Party (PDP) to comply with the orders of the High Court of Plateau State, Jos, directing it to conduct valid ward, local government and state congress elections before nominating its candidate for the various elective posts in the state was an incurable fundamental flaw. Relying on this finding, the Election Tribunal, under a petition brought by the All Progressives Congress (APC) and its members sacked many lawmakers elected on the platform of the PDP. Under Section 246 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Court of Appeal is the final Court of last resort on appeals emanating from the decisions of Election Petition Tribunals in disputes arising from the conduct, outcome and legality of National Assembly and States House of Assembly elections. The implication of this is that no appeal can be filed before the Supreme Court after the Court of Appeal had decided on the matter. However, as noted by the apex court in the recent judgment involving Governor Caleb Mutfwang of Plateau State, both the tribunal and the Court of Appeal were in grave error when they entertained the matter and the appeal respectively, as they lacked the requisite jurisdiction in the first instance.
GROUNDS FOR REMOVING LEGISLATORS
Can disobedience to a court order (which in any case was not correct, as found by the apex court in the Mutfwang Governorship appeal), be a ground to remove a legislator in the face of the clear provisions of sections 106 and 109 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which respectively deal with qualification and disqualification for the office of members of the House of Representatives and Assembly? I think not. A long line of cases vindicates me. See for example, Onor & Anor v. INEC & Ors; SC/CV/1194/2023; (Unreported), delivered on 12th January, 2024. Thus, as found by the Supreme Court both in the Muftwang case and Onor & Anor v. INEC & Ors (Supra), disobedience to an earlier order made by a court (which was not even the case in the two matters) is not one of the qualifying or disqualifying factors of a Governor or Legislator. In the Onor & Anor v. INEC & Ors (Supra) which I handled, the apex court held that the punishment for a disobedient party is to take up contempt proceedings as provided for in the Sheriff and Civil Process Act, CAP 407; LFN 1990; not to use it to disqualify an elected person and take away his victory. Thus, brings us to the issue of jurisdiction.
WHAT IS JURISDICTION?
Jurisdiction is the authority of a court to proceed with the adjudication of a dispute. In Attorney General of Anambra State vs. Attorney General of the Federation (2005) FWLR (PT. 268) 1557, I.T Muhammad, JSC, held that:
“Jurisdiction to a court of law is equated to blood in a living animal. Jurisdiction is the blood that gives life to the survival of an action in a Court of law, without which the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an exercise in futility.”
APC’S GROUSE BEFORE THE PLATEAU STATE ELECTION TRIBUNAL
The grouse of the APC and its members before the Plateau State Election Tribunal and the Court of Appeal was premised on what they alleged to be invalid primaries conducted by the PDP. They had argued that the PDP had no structure in Plateau State (whatever that meant). But the trite position of the law now is that the issue of membership, nomination, submission of forms and sponsorship of candidates for elections are internal affairs of a political party as clearly provided for in Section 84(1) & (14) of the Electoral Act, 2022. Section 84(14) of the Electoral Act makes provisions before whom and where any issue emanating from the conduct of the primaries can be determined. It is an Aspirant that participated in the primaries that can complain to the Federal High Court. No other party has the vires to. Thus, section 84(14) of the Electoral Act, 2022, provides:
“Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
The appellate courts, in ringing tones, have upheld this trite position of the law in a plethora of cases: Enang v. Asuquo & Ors (2023) LPELR – 60042 (SC); Onubogu v. Anazonwu & Ors (2023) LPELR – 60288 (SC); Olabisi & Anor v. APC & Anor (2023) 59640 (CA); Odey v. APC & Ors (2023) LPELR – 59695 (CA); and Dickson v. LP & Ors (2023) LPELR – 60837 (CA). Indeed, the appellate courts have gone ahead to hold that a person or political party that attempts to peep through the fence to query the internal affairs of another political party wherein he /it was not a candidate in the primaries is nothing but a mere busy body and meddlesome interloper. See the cases of APC V. JEGA & Ors (2023) LPELR – 59866 (SC); Akpatason v. Adjoto & Ors (2019) LPELR – 48119 (SC); Daniel v. INEC & Ors (2015) LPELR – 24566 (SC); APGA & Ors V. APC & Anor (2023) LPELR – 59914 (CA); and PDP V. Edede & Anor (2022) LPELR-57480 (CA). Matters such as the Plateau Legislators cases where victories were snatched from the PDP winners and handed over to their opponents in the APC on a platter of gold were therefore carried out without the requisite jurisdiction of the Tribunals and the intermediate court. The Supreme Court said this much in the case of Mutfwang & Anor v. Nentawe & Ors (Supra).
CONSEQUENCES OF A COURT DETERMINING A MATTER WITHOUT JURISDICTION
It is trite law that any exercise carried out by a court of law without jurisdiction is a complete nullity. The tests for determining whether a court has the jurisdiction to adjudicate on a claim were laid down by the apex court in the causa celebre of Maduokolu vs. Nkemdilim (1962) 2 SCNLR 341. The apex court held in that case that a court is competent to adjudicate a claim when:
a. It is properly constituted concerning the number and qualification of its membership;
b. The subject matter of the action is within its jurisdiction;
c. The action is initiated by due process;
d. Any condition precedent to the exercise of its jurisdiction has been fulfilled.
ONLY A CO-ASPIRANT HAS THE LOCUS STANDI TO COMPLAIN
As clearly provided in Section 84(14) of the Electoral Act and Section 272 (3) of the 1999 Constitution, it is the Federal High Court and not an election tribunal that has the jurisdiction to adjudicate on pre-election issues and this must be carried out within 14 days. Also, it is only a co-aspirant in the primary being disputed that has the locus to challenge the conduct of the said primary; and not his opponent in another party. See the cases of Alahassan & Anor v. Ishaku & Ors (2016) LPELR – 40083 (SC); Otegbeye & Anor v. APC & Anor (2023) LPELR – 60030 (CA); Labour Party v. INEC & Ors (2023) LPELR – 60548 (CA); YPP V. APGA & Ors (2023) LPELR-59799 (CA); and Usman v. APC & Ors (2020) LPELR – 50308 (CA). Delivering his own judgement in the Mutfwang appeal (it was unanimous), Justice Emmanuel Agim held that the APC and its candidate who had challenged Mutfwang’s election were not members of the PDP and so could not competently challenge the primary elections held by the PDP. He also held that the tribunal and Court of Appeal lacked jurisdiction to have entertained the matter in the first place. He lectured further:
“The petition by the APC and its candidates is an abuse of the court process. I wonder why the matter came to court at all. This appeal is allowed. The legal profession should wake up or render itself irrelevant. The judgment of the Court of Appeal is set aside. My only worry is that a lot of people have suffered as a result of the Court of Appeal’s decision. It was absolutely wrong. The appeal is allowed.”
CHALLENGE TO PRIMARY ELECTION IS A PRE-ELECTION MATTER
Section 285(14) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, particularly (a), (b) and (c), delineates the circumstances which come under pre-election matters and; which can be challenged within the electoral framework. It encompasses an Aspirant’s grievance regarding non-compliance with the Electoral Act; or National Assembly regulations during political party primaries; disputes by Aspirants concerning their participation; and compliance issues with the Independent National Electoral Commission (INEC). It also includes legal actions by political parties challenging INEC’s decisions, including disqualification of candidates; and complaints related to non-compliance with electoral laws in selection or nomination of candidates; election timetable; voter registration; and other preparatory activities for an election. See the cases of Anyakorah v. PDP & Ors (2022) LPELR-56876 (SC); APM V. INEC & Ors (2021) LPELR – 58375 (SC); Akpamgbo-Okadigbo & Ors v. Chidi & Ors (2015) LPELR – 24564 (SC); Salim v. CPC & Ors (2013) LPELR – 19928 (SC); Akinremi & Anor v. Suleiman & Ors (2022) LPELR – 56903 (CA); and APC V. Suleiman & Ors (2023) LPELR – 59911 (CA). (T o be continued).
THOUGHT FOR THE WEEK
“Justice consists not in being neutral between right and wrong, but finding out the right and upholding it, wherever found, against the wrong”. (Theodore Roosevelt).
LAST LINE
God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Prof Mike Ozekhome, SAN, CON, OFR, FCIArb., LL.M, Ph.D, LL.D, D.Litt, D.Sc. kindly, come with me to next week’s exciting dissertation.
A.
-March 04, 2024 @ 10:55 GMT|
Tags: Prof Mike Ozekhome
