By JIDE AJANI AND Ikechukwu Nnochiri
At the time famous British Jurist, Lord Denning, held that “Something cannot be built on nothing,” little did he know that what male judges all over the world have failed to do within the past centuries could be achieved by a female High Court Judge in Nigeria.
Not only has the recent judgment that was delivered by Justice Gladys Olotu of the Abuja Division of the Federal High Court raised concerns regarding the jurisprudence of avalanche of judgments that are churned out by various courts in the land, but has further poked the supremacy of Supreme Court verdicts in the face.
No matter, Justice Olotu has consistently conducted herself with dignity. The grave concern, however, is that her judgment introduces more fog into the matter.
Without prejudice to the issue at hand, it is equally imperative to point out that judges are not aliens; they are human beings and ought not to be seen as demigods that are divinely insulated from the choky air of corruption that has made politics to remain a dirty game!
If cases are basically decided on the basis of peculiar facts and evidences adduced before a court of competent jurisdiction, where then lay the role of politics in resolution of legal disputes, especially election related cases?
The politics manifests when a lower court, acting outside its judicial mandate, tailors its judgment in such a way that rather than settle or answer legal question, further fans the embers of controversy. Justice must not be done, but must be seen to have been done!
Now, here is the background of the issues and recent high court judgment that has once again stirred the hornets’ nest.
Section 85(1) of the Electoral Act 2010 requires every registered Political Party to give a 21-day notice to INEC (“the Commission”) of its intention to conduct any convention, congress, conference or meeting convened for the purpose of nominating candidates for any of the elective offices specified under the Act (Electoral Act 2010).
In compliance with this provision, the Congress for Progressive Change (CPC) National Headquarters, wrote a letter to INEC on Dec 24th 2010 giving notice to the commission of its intention to conduct primary Elections for April 2011 National Assembly, State Assembly and Governorship Elections in Katsina State.
According to the time-table contained in that letter, all primary elections for Katsina State would conclude on 13th January, 2011 and submission of the list of successful candidates to INEC to be made the following day (January 14, 2011). The CPC also notified INEC of the constitution of a committee under Col Jibril Mohammed Hassan (Rtd), saddled with the responsibility of organizing the Primary Elections.
That election took place on that day (13th January, 2011) and Hon Aminu Masari and others vying for various National and State Assembly offices emerged victorious. On January 14th 2011, the CPC National Congresses Committee under Dr Lanre Tejousho submitted names of winners of the primary elections to INEC after ratification of the list by the NEC and Board of Trustees of the Party.
Nevertheless, dissatisfied with the process with the nomination process, 43 candidates of the party in the state, led by one Senator Lado Danmarke, dragged INEC, the party and its chairman, Prince Tony Momoh before a federal high court in Abuja, contending that they were the legally elected candidates of the party in the state.
On February 15, 2011, trial justice Abdul Kafarati granted the relief sought by the plaintiffs and okayed them for the April polls.
Following Kafarati’s judgment, CPC leadership went before the appellate court and upturned the lower court’s judgment.
In its notice of appeal filed on March 1, 2011, CPC anchored its suit on 8 grounds, among which were for the higher court to determine whether: a) the trial court was right in holding that the 1st to 43rd respondents have sufficiently proved that they are candidates of the CPC in Katsina State; b) a miscarriage of justice has not been occasioned by the wrong conclusion of the trial court; c) the trial court was right in granting all declaratory and injunctive reliefs sought by the Respondents regard being had to Sec 87 of the Electoral Act and the CPC constitution, d) the failure of the trial court to consider issues for determination raised by the appellants did not occasion a miscarriage of justice.
Delivering its judgment on April 20, 2011, the Court of Appeal sitting in Abuja agreed with all the arguments of the CPC and consequently set aside the judgment of the Federal High Court.
In a unanimous decision delivered by Justices Mohammed Lawal Garba who presided, Jimi Olukayode Bada and Regina Obiageli Nwodo (Mrs), the court held that by the provisions of the Electoral Act 2010 (as amended) and the 1999 Constitution (as amended) the party at the National Level was the only organ empowered to organize primary elections and not any of its branches and therefore the Katsina State Chairman of the CPC “cannot usurp the powers conferred on the National Executive committee….and any such act…without any evidence he was delegated to so act is outside statutory provisions and such act is invalid.”
The appeal Court equally noted that: “the trial court (Federal High Court) was wrong in relying on the primary elections of January 15, 2011, to hold that the 1st to 43rd respondents have sufficiently proved that they are the candidates of the CPC in Katsina State for the April 2011 general election.
“The decision of the trial court (Federal High Court) was not based on the overwhelming documentary evidence that the January, 13, 2011 primaries were sanctioned by the Board of Trustees of the appellants”.
Besides, the appellate court held that the issue of who should be candidate of a political Party at an election is a party matter which should be determined by the rules of its constitution and provisions of the Electoral Act.
“The court will normally be involved where the provisions in the electoral Act or the Party’s constitution has not been complied to”, they concluded.
Expectedly, the faction that previously secured favourable judgment at the high court level proceeded to the Supreme Court in an appeal marked SC/157/2011.
At the Supreme Court, there were three main issues for determination bearing in mind that it is the final court of the land. It was specifically invited to determine all the issues argued at the lower courts; i.e. the Federal High Court and the Court of Appeal.
It was consensus expectation that the apex court could decide that the trial Judge at the Federal High Court (Justice Abdul Kaferati) was right in his Judgment that Sen Yakubu Lado Danmarke & others were validly and legally nominated by the CPC as its candidates for the 2011 Elections for various constituencies in Katsina State.
Or, to uphold the judgment of the Court of Appeal or out rightly dismiss the appeal on any grounds; this would have meant that Sen Yakubu Lado Danmarke & others have lost their appeal and therefore were not the validly nominated candidates of the CPC in the 2011 Elections.
More so, the apex court had the latitude to decide to dismiss the appeal on the grounds that the Federal High Court, the Court of Appeal and itself lacked jurisdiction to entertain the matter as the nomination of candidates is the exclusive preserve of a political party (and NOT a court of law).
By implication, that would mean that the list of names submitted by the CPC on January, 2011 and duly received by INEC remained valid and legal. Expectedly, in its Judgment delivered on December 16, 2011, read by Justice Walter Nkannu Onnoghen (JSC) and unanimously agreed to by Justice Dahiru Mustapha (CJN), Justice John Afolabi Fabiyi (JSC), Justice Mary Odili (JSC) and Justice Olufunlola Oyelola Adekeye (JSC), the Supreme Court took the last option.
It clearly stated that the Federal High Court ought not to have assumed jurisdiction when Yakubu Lado Danmarke brought the matter to it for lack of jurisdiction.
According to the apex court panel, courts do not have right to nominate candidates for or on behalf of political parties, as that is one of the cardinal responsibilities of political parties as enshrined in the constitutions which stipulates that candidates to all elections must be members of and sponsored by a political party.
“In the instant case, the jurisdiction in question is statutory and very limited in scope. On the face of the claim it would appear that the courts have jurisdiction under section 87 (4) (b) (ii), (c) (ii) and (9) of the Electoral Act 2010 (as amended).
If the right being claim by the appellant and in dispute between the parties arose from the primaries of 15th January 2011 alone. Once there arises a dispute as to which of the two primaries a right of candidature on the parties to represent a political party in an election, the matter is taken outside the purview of Section 87(4)(b)(ii),(c)(ii)(9) of the Electoral Act 2010 (as amended).
”In conclusion, I hold the view that the courts have no jurisdiction to determine the matter in dispute. Consequently, suite no. FHC/ABJ/CS/126/2011 and appeal nos. CA/A/133/2011, SC/157/2011 and SC/334/2011 are hereby struck out for lack of jurisdiction,” the apex court held.
Sequel to that judgment, INEC decided to withdraw the Certificate of Election Return earlier issued to two Senators and 8 members of the House of Representatives who were the “others” in the Yakubu Lado Danmarke & others case.
It also promptly issued new Certificates of Return to members of the other faction of the CPC who had the support of the party leadership.
Not deterred, the faction that lost out in the political tussle, went back to the high court to challenge the action of the electoral body on the premise that the apex court did not categorically order that their Certificate should be withdrawn.
They contended that there was no consequential order against them, a move that still begs the question as to whether something can be built on nothing!
Meanwhile, in a judgment she delivered on January 11, Justice Olotu, said she had the jurisdiction to not only entertain the suit but to adjudicate on the issues—which by extension, means taking the legal baton to continue the race from the point where a 7-man panel of the Supreme Court got tired – more like continuing a 4 X 100metre relay after the tape had been breasted and the return time recorded.
In her judgment, she held that INEC lacked the constitutional powers to withdraw Certificate of Return issued to any person affirmed as the winner of an electoral contest by its returning officer – even though the Supreme Court had pronounced that the actions of the High Court relied on in the first instance was a needless absurdity.
Justice Olotu maintained that going by Section 68(1) and 75(1) of the Electoral Act 2010, the electoral body cannot revise its action when a certificate of return is issued to a winner of an election, without an order of a tribunal or a competent court of jurisdiction.
Besides, the Judge held that INEC acted ultra-vires its powers by withdrawing the certificates of return and subsequently re-issued fresh ones to other candidates.
The plaintiffs had prayed the court to nullify the Certificates of Return that INEC issued to Senator Abubakar Sadiq Yar’adua, Senator Abubakar Hadi Sirika and eight other members of the House of Representatives, as well as, order that the lawmakers vacate their seats in the National Assembly forthwith.
Listed as defendants in the suit were INEC, Senate President, Speaker of the House of Representatives, Clerk of the National Assembly, CPC and ten members of the National Assembly.
Meantime, Justice Olotu said INEC was bereft of the powers to cancel, nullify, review, withdraw, void, invalidate either directly or indirectly, the Certificates of Return validly issued to the Plaintiffs consequent upon their winning elections to represent their respective Federal Constituencies and Senatorial Districts in Katsina State, without an order of the court first sought and obtained.
According to her, “the Plaintiffs are the candidates that contested and won the April 9, 2011 general elections into the National Assembly to represent their various Federal Constituencies and Senatorial Districts of Katsina state and certificates of return were issued to them within seven days of the declaration of the election results as provided by the Electoral Act and not the 5th to 14th Defendants.”
The Plaintiffs had asked the court for a declaration that the sealed Certificates of Return issued to them upon their winning election into the National Assembly are still valid and that they are entitled to immediately repossess their seats in the National assembly to represent their respective Federal Constituencies and Senatorial District without hindrance from the 2nd (Senate President), 3rd (Speaker) or 4th (Clerk of the National Assembly) Defendants or any other person.”
In an affidavit in support of the originating summon, they averred that INEC purportedly withdrew their certificates of return and fresh ones were issued to the 5th to 14th Defendants without any order of any court of competent jurisdiction.
They further told the court that pursuant upon fresh certificates of return, the Defendants were sworn-in to take their various seats in the National Assembly without any court order to that effect, pointing further that the Defendants to whom fresh certificates of return were issued did not participate in the April 9th 2011 elections.
However, an a Preliminary Objection, the Defendants argued that the matter was a post election issue which they said ought to be handled by the election petition tribunal and not the federal high court.
The defendants also challenged the jurisdiction of the court to hear and determine the suit, contending that section 68(1) of the Electoral Act automatically terminated the seats which the Plaintiffs allegedly occupied in the National Assembly.
Nevertheless, Justice Olotu held that the court has jurisdiction to hear and determine the suit, maintaining that the action was not hypothetical, academic and constituting an abuse of court process as claimed by the Defendants in their preliminary objections.
Now that the judgment has been delivered, the question is what is INEC going to do?
What will the Supreme Court do?
Was the Supreme Court’s ouster judgment not enough to render every act from the very first trial a nullity?
What will the leadership of the National Assembly do?
Her judgment says INEC was wrong to have withdrawn the Certificates of Return because the electoral body does not have the right, powers or legal stamina to withdraw the certificates.
Now, would INEC be right to withdraw same from those it re-issued them to?
The world is watching!