Supreme Court And New Electoral Jurisprudence In Nigeria

By Femi Falana SAN

Last Friday, the Supreme Court delivered 8 judgments in appeals arising from governorship election disputes. While 5 judgments of the Court of Appeal were upheld, 3 were upturned. The upturned judgments pertain to the cases of the governors of Kano, Plateau and Zamfara States. Many stakeholders have commended the Supreme Court for the landmark judgments. Apart from the concurrent judgments of the Tribunal and Court of Appeal in the Kano State governorship election petition which cannot be justified as voters were illegally penalised for the negligence of electoral officers, the Court of Appeal may be said to have relied on judgments of the Supreme Court in the other two cases.

Specifically, the controversial theory of inconclusive elections became part of the nation’s electoral jurisprudence in the case of Faleke v independent National Electoral Commission (2016) 18 NWLR PT.1543. The Faleke’s case justified the finding of the Court of Appeal to the effect the governorship election in Zamfara State was inconclusive. While the decision of the Court of Appeal was rightly set aside on the ground that the APC and his candidate did not adduce sufficient evidence to prove the allegations of electoral malpractice, the Supreme Court did not jettison the guideline of inconclusive elections which the Independent National Electoral Commission has continued to appy in a number of governorship elections.

In upturning the judgment of the Court of Appeal in the case of Plateau State, the Supreme Court stated that it was perverse because the issue of the primary election that produced Governor Mutfwang was outside the jurisdiction of the lower court. In particular, the apex court pointed out that the validity of nomination and sponsorship is not a valid ground to void an election. In the leading judgment of the apex court, the Honourable Justice Agim held that the Court of Appeal lacked jurisdiction to entertain it, besides the issue of sponsorship has elapsed long ago, adding that the petitioners not being members of the Peoples Democratic Party (PD) have no locus to challenge the party’s primary election.

Apparently worried about the role of judges and lawyers in subverting the democratic process the Supreme Court impugned the integrity of the Court of Appeal and caitioned the legal profession to wake up or else it would render itself irrelevant to the society. It is however doubtful if the Court of Appeal can be sanctioned for relying on the case of Jegede & Anor v Independent National Electoral Commission & Ors (2022) 1 WRN 1 where the Supreme Court (in a split decision of 4-3 Justices) held that the primary that produced Oluwarotimi Akeredolu SAN (now of blessed memory) as the Governorship candidate of APC was valid even though it was conducted by a Caretaker Committee headed by a sitting Governor.

The apex court did not dismiss the appeal of Eyitayo Jegede SAN and PDP for want of locus standi in accordance with section 285(14) of the amended Constitution. Indeed, the Honourable Justice Agim who read the leading majority judgment of the Supreme Court held that “From the foregoing, I hold that the 3rd and 4th respondents were sponsored by the 2nd respondent, the political party, in which they are members, and therefore were qualified for election to the office of the Governor as required by section 177(c) of the 1999 Constitution which provides that ‘A person shall be qualified for election to the office of the Governor of a State if (c) he is a member of a political party and is sponsored by that political party.’ ”

In view of the fact that the issues of the congresses, nomination and sponsorship of the governorship candidate of the APC were determined in the Jegede’s case the Supreme Court ought not to have turned round to insist that the issue of primary is an internal matter of political parties which both the Tribunal and Court of Appeal lacked jurisdiction to determine. However, the judgment of the Court of Appeal was rightly set aside by the Supreme Court which found that contrary to the claim of the petitioners and the judgment of the appellate court the order of the Plateau High Court was not disobeyed by the PDP as evidence showed that a fresh primary was conducted.

No doubt, the decision of the Supreme Court on party primary was anchored on Section 285(14) of the Constitution, it is submitted that the question that a candidate who did not participate in a primary can be raised by his/her opponent in an election petition by virtue of section 285(13) thereof which provides that “An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.” In the Jegede’s case the Supreme Court correctly came to the conclusio that the PDP and its governorship candidate did not prove that the APC governorship candidate did not participate in a valid primary.

The point that I am struggling to make is that the qualification of a candidate who did not take part in a valid primary can be challenged by a rival political party in an election petition by virtue of section 285(13) of the Constitution. In a number of cases, it has been decided by the Supreme Court that qualification is a pre-election and post election matter. In John Kayode Fayemi vs. Adebayo Segun Oni & Ors (2019) LPELR-49291(SC), Galumje, JSC, as he then was, held that, ” I do not agree with the learned counsel that qualification to contest primary election is an internal affair of the party. On the contrary qualification of a candidate is both pre and post-election matter that can be challenged either in the Federal or State High Court or the Tribunal. In Dangana & Anor vs Usman & Ors (2013) 6 NWLR (pt. 1349) 50 this Court, per Onnoghen JSC (as he then was) held:- “An issue of qualification of a candidate to contest an election under the Electoral Act, 2010 (as amended) is both a pre-election and an election matter which both the High Courts and the relevant Election Tribunals have jurisdiction to hear and determine.”

In the case of Governor Muftang, the Supreme Court lamented that a lot of people have suffered because of the wrongful judgments of the appellate court which had sacked several legislators who won elections under the platform of the PDP. With respect, their Lordships should have refrained from commenting on the case of the legislators who lost their seats as it was not before them as it is trite law that a court lacks the vires to determine a matter that is not before it. Since section 246(3) of the Constitution provides that the decisions of the Court of Appeal in respect of appeals arising from legislative election petitions shall be final, the Supreme Court ought not to have commented on the decisions of the Court of Appeal on the legislative elections in Plateau State.

In criticizing the Court of Appeal for annulling the elections of legislators in Plateau State it is pertinent to recall that in 2019, the Supreme Court removed APC legislators who had won elections into the National Assembly and the Zamfara State House of Assembly while PDP candidates who had lost the elections were installed. The justification for the decision of the Court was that the APC did not conduct a valid primary. As if that was not enough, the Supreme Court also removed the governor who had won the gubernatorial election in Zamfara State and installed a candidate had been rejected in the polls by the electorate.

It is unfortunate that notwithstanding that the Supreme Court has validated the primaries conducted by the PDP in Plateau State, the legislators who lost their seats cannot approach the Court of Appeal or any other court to reinstate them. However, I do not share the views of lawyers who have advised the affected legislators to accept their fate in good faith. Therefore, I agree in toto with Mr. J.S. Okutepa SAN who has opined that a new matter be filed in the Federal High Court against the Federal Government (that appointed the Justices of the Court of Appeal) for the payment of the salaries and allowances of the legislators for their 4-year tenure. The action should not be based on the obiter dicta of the Justices of the Supreme Court but on their unanimous finding that the PDP conducted a valid primary in Plateau State.

It is however curious to note that instead of commending the Justices of the apex court for the judgments delivered last week, some top political leaders have been thanking President Bola Tinubu for not interfering in the judicial process. This speaks volumes about the total lack of confidence in the autonomy of the courts by the political class.But the most worrisome aspect of the case of Muftang is that the politicians who are hailing the Supreme Court for the landmark judgment will rely on it to manipulate the primaries of political parties in 2027 elections and thereafter since they are said to be internal affairs of political parties that cannot be questioned by rival candidates in election petition tribunals and appellate courts.

Finally, in view of the fact that some appeals arising from governorship election petitions have not been concluded, the Supreme Court is urged to review some of its decisions on political cases and discard them without any further delay. It is only then that we can begin to celebrate the new electoral jurisprudence promoted by the apex court. At the same time, the national assembly is called upon to study the decisions of the tribunals and the appellate courts on the 2023 general elections with a view to amending the Electoral Act and the relevant provisions of the Constitution to ensure that election results are determined by voters and not by Judges.