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 put 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).
COURT OF APPEAL AS FINAL COURT ON LEGISLATORS’ MATTERS
It appears that the Court of Appeal being the Court of last resort in respect of all
appeals 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 becomes functus officio once it delivers its judgement and
cannot reopen a matter it has pronounced upon with finality. In other words, a
judgment once delivered by the intermediate court on National and State Houses of
Assembly matters cannot be varied where it correctly represents what the Court
decided. Nor shall the operative or substantive part of such judgement be varied or
substituted. See the cases of Oyetibo & Anor v. Oyinloye (1987) LPELR-
2883(SC) at 11-13. Dingyadi & Anor v. INEC & Ors (2011) LPELR 950 (SC);
Udende v. Suswam & Ors (2023) LPELR-61304 (CA); and Owoo & Ors v.
Edet & Anor (2013) LPELR – 22042 (CA).
THE COURT OF APPEAL’S RECENT DISMISSAL OF THE
APPLICATION FOR A REVIEW INSTITUTED BY THE SACKED PDP
PLATEAU LAWMAKERS
The sacked Plateau Legislators in an attempt to reclaim their lost positions in the
light of the Supreme Court’s judgement in the Caleb Mutfwang case and it's obiter
pronouncement on the legislators' injustice, filed a fresh application before the
same Court of Appeal that had dismissed their appeal from the Plateau State
Election Tribunal, requesting a review of the said judgement that sacked them. The
appellate court however, as expected, on 28th February, 2024, dismissed the suit,
describing it as a waste of judicial time, frivolous and lacking in merit. It further
slammed a fine of N128 Million Naira (N8 Million per Applicant) on the already
beleaguered Applicants.
BUT CAN A COURT THAT ACTS WITHOUT JURISDICTION IN THE
FIRST PLACE NOT VARY ITS OWN JUDGEMENT DELIVERED
WITHOUT SUCH JURISDICTION BY WAY OF A REVIEW?
The apex court had observed (on the Plateau Legislators’ case, albeit obiter), while
delivering the judgment in the Governor Caleb Mutfwang appeal, that the lower
tribunal and Court of Appeal erred as they acted without jurisdiction to have
entertained the petitions sacking the lawmakers from the PDP over a matter
bothering on internal affairs of their party. Couldn't this issue of lack of jurisdiction
as observed by the apex court have been further explored and subjected to the
jurisdiction of the same Court of Appeal that delivered the judgement by way of
review? Were the legislators wrong to have asked for a review? Let us have some
guidance from earlier decisions of the Appellate courts. In Iteogu v. LPDC (2018)
LPELR-43845(SC) 18-26, the Applicant had asked the apex court to revisit its
decision concerning him which had been decided by the apex court in 2009. This
application for revisitation stemmed from the fact that on the 12th July, 2013 and
the 13th May, 2014, respectively, the Supreme Court had held in the cases of
Aladejobi v. NBA (2013) 15 NWLR (Pt. 1376) 66, and Rotimi Williams
Akintokun v. Legal Practitioners’ Disciplinary Committee that it had no
jurisdiction to entertain an appeal directly from the LPDC. The Applicant’s posture
in his case was that in those cases, the apex court had held that it lacked the
jurisdiction to entertain appeals directly from the LPDC. He had therefore urged
that there was the need to revisit his own case and declare that the decision or
judgment of the apex court delivered in 2009 pertaining to him was given without
vires and so set it aside and have his status restored as a legal practitioner. The
apex court, per Justice Mary Ukaego Peter-Odili, JSC, while dismissing the
application for review, held at pages 18 -26, inter alia, that aside the exception of
the “slip rule”, the Supreme Court may only depart from its earlier decision in
subsequent cases and thereby overrule itself. She emphasized that this:
“does not however mean that the previous decisions in those
earlier cases differently decided would be given a new lease of life
on account of this new development. The reason for this is self-
evident as Oputa JSC stated in Adegoke Motors Ltd v Adesanya
& Anor. (1989) 5 SCN113: (1989) 3 NWLR (Pt. 109) 250 at
274 thus:"We are final not because we are infallible, rather we are
infallible because we are final." …. In other words, the Supreme
Court enjoys the finality of its decisions. Except for clerical
mistakes, accidental slips, or omissions, it seldom re-visits its
decisions by way of review, variation or setting aside. Once the
Supreme Court has entered judgment in a case, that decision is
final and will remain so forever. The law may in the future be
amended to affect future matters on the same subject, but for
cases decided, that is the end of the matter.” (Emphasis supplied)
See also Anyagham v. FBN PLC (2021) LPELR – 55905 (CA); Emezie & Ors
v. Linus & Anor (2016) LPELR – 40514 (CA); and Onuh & Anor v. Ogbe
(2019) LPELR-48361 (CA).
THE PLATEAU LEGISLATORS’ FIASCO
In the light of the above judgment of the Supreme Court, was there no remedy for
those legislators who were wrongly sacked by the Court of Appeal? It is important
to note that 22 PDP members in both chambers of the Nation’s and Plateau State
Legislature were sacked by the Election Tribunals and the Court of Appeal, a
development that left tongues wagging and ruckus generated across Nigeria. The
legislators affected included two Senators – Simon Mwadkwon and Napoleon Bali;
four members of the House of Representatives – Dachung Bagos, Beni Lar, Isaac
Kwalu, and Peter Gyendeng Ibrahim; and 16 members of the Plateau State House
of Assembly. They were all in PDP. Their constituents overwhelmingly voted for
them. But the tribunal, supported by the Court of Appeal, felt otherwise. They
took away the legislators’ victories and donated same on a platter of gold to the
APC legislators who were roundedly trounced at the polls. The Plateau State
people’s votes were rightly counted but the courts refused to make the votes count.
This is what I have termed “Judocracy” in my OZEKPEDIA neologism, “as a
genre of government practised only in Nigeria, where Presidents, Governors,
Legislators and LG Chairmen are thrown up as having ‘won’ in an election. Their
victory is immediately challenged. They get enmeshed in these legal calisthenics
for the next 2 to 3 years of their corruption-ridden governance. Then, suddenly,
they are conceived, incubated and delivered in the hallowed Chambers and
precincts of our law courts, rather than through the ballot box. The will of the
people is thereby subsumed in the decision and judgement of courts of law, the
non-representatives of the people”.
(https://www.youtube.com/watch?v=Yg8ByKVWWj)
SHOULD THIS PLATEAU STATE LEGISLATORS’ DEBACLE HAVE
BEEN ALLOWED TO THRIVE UNREMEDIED?
Our case laws are decided based on precedents. Precedent is retrospective and
ensures that a given posture is maintained even at the risk that harm may be caused
by it.
The apex court in the Mutfwang’s case noted (albeit, by way of obiter), that the
Court of Appeal was wrong when it sacked those legislators lawfully elected under
the platform of the PDP, as it lacked jurisdiction to do so. However, precedent is
saying, “Yes, we admit that there was an error. Nothing can be done about it.” I
humbly disagree with this perpetuation of injustice under the thin guise of “my
hands are tied”, or “that nothing can be done about it”. Surely, something can be
done about it. I agree with Emmanuel Agim, JSC, when he noted in his judgement
that, “it is high time the legal profession woke up before it became irrelevant”.
This admonition is in tandem with the admonition of venerable Justice
Chukwudifu Oputa (JSC), in Adegoke Motors Ltd v. Adesanya & Anor (1989) 3
NWLR (Pt. 109) 250 at 274, 275, to the effect that “When therefore it appears
to learned counsel that any decision of this court has been given per incuriam,
such counsel should have the boldness and courage to ask that such decision
be overruled”. I also find solace in the complimentary and immortal words of
Lord Denning in PARKER V. PARKER (1954) 2 All ER 22, where he
illuminated thus:
“What is the argument on the other side? Only this, that no case
has been found in which it has 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 while the rest of the world goes on, and that will
be bad for both”.
Afterall, law is but a mere handmaid to deliver justice, which is why “ubi jus ibi
remedium” (Bello v. AG Oyo State (1986) 5 NWLR 820).
Going by this, I humbly submit that when it comes to the critical issue of the court
deciding a case in which it lacked jurisdiction in the first instance, then certainly,
such a court has jurisdiction to revisit the said judgement and review it under
certain laid down conditions. This is not a blanket or open-ended cheque for
exhumation of buried cases. No.
A COURT CAN REVIEW ITS JUDGMENT
Thus, by reason of a long line of decided cases by the Supreme Court itself, a
court has the constitutional power to enforce, review or set aside its own
judgements under special circumstances as provided for by law. This is not
tantamount to the court sitting on appeal over its own judgements. In Stanbic
IBTC Bank Plc v. L.G. C. Ltd (2020) 2 NWLR (Pt. 1707), pp. 17-18, paras. D-
C, the Supreme Court, per Abba Aji, JSC, held that the court has the power and
leeway to set aside its own judgement and rehear a case, inter alia, under the
following circumstances:
“…where any of the other parties obtained judgement by
fraud or deceit…. When judgement was given without
jurisdiction…”.
WHY THE PLATEAU STATE LEGISLATORS’ JUDGEMENT OUGHT TO
HAVE BEEN REVIEWED BY THE COURT OF APPEAL
Surely, the judgement in the Plateau Legislators’ matter was dubiously obtained as
there was no disobedience to any court order at all as rightly found by the Supreme
Court in the sister Mutfwang case. All the cases had emanated from the same facts
and circumstances. Secondly, both the Election Tribunal and the Court of Appeal
lacked the requisite jurisdiction to have entertained the Legislators’ case the way
they did in the first instance.
The reason or rationale behind this position in the above Stanbic IBTC case was
graphically painted by Oputa, JSC, in Adegoke Motors Ltd v. Adesanya & Anor
(1989) 3 NWLR (Pt. 109) 250 at 274, 275, inter alia, thus:
“We are final not because we are infallible, rather we are
infallible because we are final. Justices of this court are
human beings, capable of erring. It will certainly be
shortsighted arrogance not to accept this obvious truth. It is
true that this court can do inestimable good through its wise
decisions, similarly, the court can do incalculable harm
through its mistakes. When therefore it appears to learned
counsel that any decision of this court has been given per
incuriam, such counsel should have the boldness and courage
to ask that such decision be overruled. This court has the
power to overrule itself (and had done so in the past) for it
gladly accepts that it is far better to admit an error than to
persevere in error.” (Emphasis supplied).
Thus, where a judgment of a court was obtained without jurisdiction; or is tainted
with illegality; or was obtained by fraud, the court surely has the vires,
constitutional power and jurisdiction to revisit such judgement, even if time had
since elapsed. This is because time cannot and does not run against illegality or
fraud. A party cannot be allowed to benefit, or continue to benefit from the product
of its own illegality and void conduct. This position was emphasized by the
Supreme Court in Nwosu v. APP & Ors (2020) 16 NWLR (PT 1749) 28, where it
held thus, through many of its justices as follows:
Per Eko, JSC:
“No person is allowed to benefit from illegality as illegality
confers no right”
Per Peter-Odili, JSC:
“It is difficult in the light of the damming facts well pushed in
this appeal wherein illegality was enthroned to be surveyed into
endorsing of such acts and to allow the perpetrator of such
profane acts to derive or profit from his own wrong”.
Per Amina Augie, JSC:
“The court cannot close its eyes to it (illegality) and allow itself
to be used as a tool to perpetuate illegality, in whatever form or
guise”
See also the cases of GTB V. Innoson (Nig.) Ltd (2022) LPELR-56657 (SC);
Enterprise Bank Ltd v. Aroso & Ors (2015) LPELR – 24720 (SC); Oladosu &
Anor v. Olaojoyetan & Anor (2012) LPELR – 8676 (CA) and Eco Bank v. Teak
Naturale Investment Ltd & Ors (2017) LPELR – 42389 (CA).
The Court of Appeal which was approached by the grieving PDP Legislators sure
had the power and jurisdiction to have calmly looked at and reviewed its
judgements which have since been irretrievably punctured by the Nigerian people
and the apex court itself (albeit, obiter). It should have meticulously reviewed its
earlier judgements, all of which were delivered without following judicial
precedents as laid down by the Supreme Court on the very issues dealt with in
those appeals. Law is about justice. Being Siamese twins, one without the other is
an orphan. The Plateau Legislators’ cases hallmarked a dangerous precedent where
neither the law nor justice was followed or attained. The Court of Appeal ought to
have seized the opportunity of the fresh application to correct itself. If for nothing
else, at least for the sake of posterity, justice, fairplay, equity and good conscience.
I so humbly submit.
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