Special Report

January 18, 2024

S’Court verdict on Plateau: Senior lawyers disagree on lawmakers’ fate, electoral reforms

virtual court system in Nigeria

By Ise-Oluwa Ige & Henry Ojelu

Senior lawyers among them Chief Mike Ahamba, SAN, Prof. Awa Kalu, SAN, Olisa Agbakoba,
SAN, John Baiyeshea, SAN, Prof Sam Erugo, SAN, Prof. Edoba Omoregie, SAN, Prof. Chidi Odinkalu, have expressed divergent views on the fate of Plateau State lawmakers sacked by the Court of Appeal-a judgment set aside last week by the Supreme Court as it relates to the state governor, Caleb Mutfwang. Recall that the Supreme Court had reinstated Mutfwang who had earlier been sacked by the Court of Appeal along with 16 lawmakers in the state.

While some lawyers argue that the fate of the lawmakers is forever sealed, others insist that the sacked lawmakers can still approach the Appeal Court in light of the recent apex court judgment. They were however unanimous in suggesting sanctions for judges involved in the Appeal Court decision.

Sacked lawmakers may still get justice—Ahamba, SAN

Speaking on the issue, Mike Ahamba, SAN, said: “It is not the business of the Tribunal or Court of Appeal to pry into nomination of candidates by parties. The Supreme Court was very right because the opponent must have belonged to another political party. And I don’t think such a person will have a locus standi to challenge what the party had done. If at all it is to be challenged, it could only be done by a member of the same party before the election. I totally agree with them.

“The Supreme Court, in the case of Plateau, has corrected the injustice done to the state governor by the Court of Appeal. But that judgment cannot benefit the Plateau lawmakers. That is unfortunate. The Court of Appeal is the final court of law on state and national assembly elections. The case of the affected lawmakers is therefore complex. However, I think what they can do now is to go back to the Court of Appeal and asked the court to set aside its decision in view of the judgment of the Supreme Court under an exceptional ground and let’s see if they will succeed.”

Indicted judges should be sanctioned—Agbakoba SAN

Former President, Nigerian Bar Association, NBA, Dr. Olisa Agbakoba said: “What happened in the case of Plateau lawmakers is final and nothing can be done. What has actually played out is that the electoral process failed us. The original idea given to us by INEC was that they were going to conduct a free, fair and transparent election.

It is because of their failure that the courts have now become a voting stations. The court became where to go and vote which is not its function. In my view, courts in Nigeria should not have any involvement in deciding electoral cases. People who go to vote are those who decide the outcome of any election but we have seen in several cases like the Kano case which the Court of Appeal mangled; the decisions of the courts was not what the people voted for.

“For the apex court to criticize the lower court is a very serious indictment. My first recommendation is that those judges that presided over those cases should resign or the National Judicial Council, NJC, should be proactive and invite them to explain why they made a thorough mess of a case and decided that two parties in the same matter won the case. That is the height of descent in our judicial history. I have never heard of a case where the judge decided that both the plaintiff and the defendant won the case.

“We should focus on the lessons learnt from this and how we can correct the mistakes and errors. The first point of call is the INEC. INEC needs to be completely overhauled so that they can have a narrow function. Printing of ballot papers and other things that doesn’t concern them should be removed from them. The petition process should also be changed. It should not be for instance, Peter Obi Vs Tinubu. The law should change to call the electoral umpire to account.”

S’Court’’ll be asphyxiated by NASS Appeals if—Kalu, SAN

Former Attorney-General of Abia State, Prof Awa Kalu, SAN, said: “This is a very tricky situation both for Plateau State and the nation as a whole in the sense that the Plateau situation has occasioned grave miscarriage of justice to the Plateau lawmakers. It is now in the open that the Plateau State House of Assembly members were in the same boat as the Governor. While the lawmakers sink in the ship, the Governor is afloat. The Governor, as a politician, must know what to do, i.e., how to work with those members of his party who were separated by judicial error.”

On the suggestions that the Constitution should be reviewed to allow appeals in National Assembly election to get to the Supreme Court, he said: “If the House of Representatives is fully complemented, there will be 360 members in existence. In addition, there will be 109 Senators, making the membership of both houses 469. If in one election season, half of the members of the National Assembly are fighting in Tribunals or Court that would leave the Supreme Court with 234 appeals to adjudicate. For that reason, the Court will be further asphyxiated, and I do not agree that the Supreme Court should at any time have that number of appeals to be dealt with within sixty days as the law stands.”

NASS appeal should terminate at S’Court— Erugo, SAN

Law Professor, Sam Erugo, SAN, said: “I believe that the issue of membership vis a vis non-compliance by political parties with the provisions of the Constitution remains largely unresolved. Once there is non-compliance with the Constitution, it takes the dispute beyond the internal affairs of a political party. The apex court’s rebuke is remarkable because of the current penchant of the lower courts to refuse to apply the doctrine of judicial precedent in political cases.

“This is the reason for the controversial decisions of the lower courts. In view of recent experience, it has become very important that appeals in election petitions, particularly for elections into the National Assembly, should go up to the Supreme Court for proper judicial review. A lot of injustices were done in so many cases that ended at the Court of Appeal, and there is no remedy. It is obvious that the Supreme Court has been doing well in her review of appeals from the lower courts.”

Willful miscarriage of justice should be punished—Prof Odinkalu

An erstwhile Chairman of the National Human Rights Commission, NHRC, Professor Chidi Odinkalu, SAN, is of the view that the error in the decision of the Appeal Court in the Plateau cases were willfully committed and should be punished.

According to him, “You don’t have judicial review of the decision of a final court which the Court of Appeal is in parliamentary election disputes. However, it is possible for the court to review its own decision in exceptional cases.

“The scale of the willful miscarriage in Plateau State is extraordinary. It calls for extraordinary measures. I personally believe that the current President of the Court of Appeal who is from Plateau State is complicit in the injustice. She comes from the same LGA – Shendam – as the immediate past governor whom they have now installed as Senator for Plateau Central. I would go as far as to say she has been privy to everything that happened in these Court of Appeal violations.

“But there is a way for her to show she is not: She can constitute a different panel of the Court of Appeal to hear applications for review of the decisions. That is the least she can do.”

Plateau lawmakers’ fate irreversible—Omoregie, SAN

Constitutional law expert, Prof Edoba Omoregie, SAN, said: “Unfortunately, the Court of Appeal decision cannot be reversed. This is because the court is the final forum in such matters. The bigger issue raised by the entire scenario relates to the problem of judicial rascality being displayed by the Court of Appeal and the lower courts or tribunals which manifests in their unacceptable failure to follow previous Supreme Court decisions such as in Jegede v. APC.

“Lower courts are obliged to follow previous decisions of the Supreme Court in similar circumstances. In the particular issue at stake, those previous decisions had made it categorically clear that matters of the nomination of candidates by political parties are internal affairs of political parties outside the concern of other political parties.

“The only remedy open now is for the legislature to consider legislative action to right the wrong. This can only be by fresh legislation which will be effective in the next election cycle.”

No remedy for the travesty of justice —Baiyeshea, SAN

Also contributing, John Baiyeshea, SAN said the Appeal Court’s decision particularly on Plateau has done incalculable harm to the affected lawmakers in the state and democracy in the country.

He said: “This is one of the ugly scenarios in our Nigerian system and one of the irreversible errors in our legal/administration of justice. It is obvious now that with the judgment of the Supreme Court affirming the election of the Governor of that state (who was removed by the Court of Appeal for the same reasons that the National Assembly members were removed), the Court of Appeal’s judgment is a complete travesty of justice to those National Assembly members.

“There is no remedy for them now for this monumental travesty of justice to them. Our legal system should not at our present state of development, present citizens with such helpless situations where there is no remedy for such a brutal wrong done to its citizens.

“This is why those who have the privilege of presiding over the affairs of others to determine their fate should be very careful not to abuse such privilege. It is quite sad that before our eyes, the representatives the people of Plateau State voted for have been replaced by those ‘selected’ by the Court of Appeal. Democracy has been obliterated, bastardised and the people shortchanged.”

Its irreversible grave injustice—Ebute, SAN

Also contributing, a former Chairman of the Abuja Branch of the Nigerian Bar Association, NBA, Moses Ebute, SAN said the Court of Appeal being a final court, its decision cannot be appealed against.

“It is final and binding, not minding the latest decision of the Supreme Court in the governorship appeal in respect of Plateau State which is consistent with all of its earlier or previous decisions on who has the locus standi to challenge the outcome of a party primary or nomination of a candidate of a political party.

“Unfortunately, the Court of Appeal defiantly refused to follow the decision of the Supreme Court and thereby visited grave injustice on other PDP candidates involved in national and state legislative houses election in Plateau State.

“More worrisome, surprising and embarrassing is the fact that the same Court of Appeal had held and pronounced in the Presidential Election Petitions that whoever is not a member of a political party or is not an aspirant in the primary election of a political party, cannot challenge the nomination of a candidate of another party. Why the Appeal Court didn’t follow its own decision leaves much to be desired.”

Nothing can be done —Akinlaja, SAN

According to Dayo Akinlaja, SAN, “There is nothing that can be done about the sack of Plateau lawmakers. Since their cases have terminated at the Court of Appeal, it is the end of the road for them.
“As it were, the people concerned would have to bear their fates with equanimity. There has been a fait accompli here.”

No legal basis to seek review—Nwobike, SAN

Also contributing, Dr Josep Nwobike, SAN said, “Regarding the options open to those who lost their legislative seats on account of the judgments of the Court of Appeal, sitting in Jos, I think that it must be recognised that the Court of Appeal is the final court for the determination of that level of electoral disputes in Nigeria. There is no clear legal or constitutional basis for them to seek judicial review of those judgments in any manner that will not create a bad precedent in our jurisprudence.”

Affected lawmakers should consult widely—Raji, SAN

Mr Ahmed Raji, SAN said: “The fate of the Plateau State’s lawmakers is similar to a situation where the law under which a person is convicted is subsequently pronounced unconstitutional. Will the convict continue to remain in jail or will he be set free? There are two schools of thought on the issue. Perhaps the affected parties should consult widely on the pronouncements of my noble Lord Okoro JSC against the finality of the Court of Appeal’s judgment in the state and National Assembly seats.”