Until recently, I have held the view that judges are immune against judicial attacks, but this view tends to be wrong given the happenings in our polity in recent times whenever the counts give decisions not favourable to some political class.
Like nature, law it is said, does not act in vain. See Ezenwaji V. University of Nigeria (2007) All FWLR (Pt348) 954 at 970. This age-long statement of the law was exactly what the Court of Appeal did in the case of Dr N.Y, Goshwe & Anor V .INEC&2 Ors, wherein the election of Governor Caleb Muftwang of Plateau state was upturned and the candidate of the All Progressive Congress (APC) was pronounced the winner the governorship election in Plateau state in the election conducted on 18th March, 2023.
Surprisingly, immediately after the judgment was handed down by the Court of Appeal in Jos, torrents of criticisms flooded the media waves to condemn the judgment and the justices who presided over same.
To worsen the situation, the matter went to the apex Court and the Supreme Court turned the table around and lashed at the Court of Appeal justices, describing them with all sorts of languages.
It is submitted that the essence of the appellate judicial system is to ensure that justice is served to all in equal measure as transparently as possible, so much so that where a single judge sitting as a judge of first instance can get his judgment reviewed and analyzed by a more experienced three-member panel at the Court of Appeal who in turn will have their judgment reviewed and revisited by a more experienced 5 member judicial Panel or 7 members as the case may be.
This process was consciously and deliberately put in place by the Constitution. See sections 270, 237, and 230 of the 1999 constitution which established the High Court, the Court of Appeal and the Supreme Court respectively.
That being the case, the law itself, a fortiori, the constitution is not oblivious to the fact that judges are mortals who are not infallible.
That is to say, it is expected that some of the judges or justices as the case may be, may commit some unintentional judicial faux pax in the discharge of their duties.
What this then means is that it is in the right of a judge to make a mistake and where it occurred, they cannot be castigated unjustly. This is the very essence of the independence of the judiciary.
Having said that, was the Court of Appeal wrong when it nullified the election of the governor of Plateau state in appeal number CA/J/EP/PL/GOV/52/23? It is submitted that the Court of Appeal was not only right but on a firma terra when it nullified the election of Governor Muftwang. This shall be demonstrated anon.
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It is not in doubt that after the governorship election that took place on 16th March 2023, Dr N.Y. Goshwe & APC filed an election petition challenging the return of Governor Muftwang on three grounds especially on the ground of non-qualification.
The petition proceeded to trial and at the end of the day, the Court found as a fact that the nomination of Governor Muftwang was invalid, or at best, he was not sponsored by the People’s Democratic Party (PDP) in line with the law, meaning that he was not qualified to Contest the election as he did.
It needs to be pointed out that the decision to void the returns and election of Governor Muftwang was further reinforced by the decision of the High Court of Plateau State in Suit no: PLD/J/304/2020 between Kaze & 11 Ors V PDP&24 Ors which found that the PDP did not conduct a valid primaries and directed that it should conduct a fresh congresses to enable it validly sponsor candidates for elections.
The finding of the Plateau State High Court that the PDP had no lawfully constituted congress to conduct proper primaries to sponsor candidates for election was relied upon by the Independent National Electoral Commission (INEC) which disqualified the PDP from sponsoring candidates for the bye-election conducted on 26th February 2022.
The decision of INEC disqualifying the PDP’s candidates based on Suit No: PLD/J/304/20 was challenged by the PDP in Suit No: PLD/J/250/21 between PDP V. INEC and it lost the case.
It appealed the decision to the Court of Appeal in Appeal No: CA/J/196/21 and lost whereupon it further appealed to the apex court vide appeal No: SC/CV/1342/22, but again, the Supreme Court dismissed the appeal of the PDP on 7th December, 2022.
Based on this, two other decisions of the Court of Appeal in appeal No CA/J/EPT/PL/NA/215/22 between PDP V. Alkali delivered on 28th October 2022 and CA/J/EPT/PL/HOA/216/22 between Dasat V. INEC delivered on 28/10/22 confirmed and affirmed the point that the PDP has failed to comply with the order of the High court in Suit No: PLD/J/304/20, has no right to field candidates for election especially so because the court of Appeal had thrown away the PDP challenge to the judgment in Appeal No: CA/J/196/21 and upheld by the apex court.
Back to the basics, with the above background and the avalanche of evidence evinced through the analytical dissection of these cases which the Petitioners tendered before the election tribunal to give effect to the judgment which all speak the same language, can anyone reasonably condemn or attack the Court of Appeal for any impropriety? I think not, That apart, can the Court of Appeal be said not to be right in nullifying the election of Governor Muftwang? Not at all. I will come back to this later.
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Having said that, a critical and dispassionate consideration of the judgment of the Court of Appeal in appeal No: CA/J/EP/PL/GOV/52/23 between Dr N.Y. Goshwe V. INEC & 2 Ors would reveal that the Court of Appeal followed the decisions of the Supreme court in Jegede V. INEC(2021) 14 NWLR (Pt 1797) 409, Fayemi V Oni (2018) LPELR 49291 SC,…..Dangana V. Usman (2013) 6 MVLR (Pt1349) 50 and Faleke V. INEC (2016) 18 NWLR (Pt1543) 61, by restating the law as expounded, espoused and expanded by the Supreme Court in quick succession or progression that the issue of qualification is both a pre-election and post-election matters and as such, it can be pursued at either an election Tribunal or at the regular court.
Therefore, by doing this, the Court of Appeals has once again upheld the sanctity of the rule of law by strictly adhering to judicial precedent or the principle of stare decisis.
It is submitted most humbly that the Court of Appeal would have been wrong if it had not nullified the election of Governor Muftwang because its decision would have expressly contravened those of the Supreme Court and stood at the parallel line to it and this would have amounted to judicial rascality. See Dalhattu V. Turaki Tobi JSC captured the position of the law thus………..
In fairness to the justices of the Court of Appeal, they appreciated this print in the course of their judgment when Abang JCA in his admirable mien, had this to say.
“I also agree with the learned senior counsel for the Appellants that the failure of the Tribunal to countenance exhibit GI (judgment of the High Court) occasional and miscarriage of justice and brought the sanctity authority of court as well as the administration of justice into disrepute scorn and disrespect….. it was held in Emehuwa V Onigwe (2011) 13 MWLR PT 13 (Sic) NWLR Pt 1265 CA that the doctrine of stare decision mandates strict application of the decisions of a higher Court, no matter the purported level of ingenuity and wit professed by the lower Courts.
Regarding the weights to be attached to judicial precedent, the Supreme Court held in NEPA V. OMAH(1997) NWLR (Pt 484) 688, that the lower courts that also includes the election tribunal are inexcusably expected to follow the decisions of the higher courts, however wrong they are and whatever injustice they may afflict.
The tribunal’s failure to apply the decisions of this court though differently constituted in exhibits G3, G5 AND G6 and nullify the result of the 2nd Respondent was a total disservice to the administration of justice because the decision of this court in those 3 cases are conducive on the point decided by them that except PDP complies with exhibit G1.
It loses its locus standi to participate in any election, the Governorship election held on 18/03/2023 inclusive. Those decisions are conclusive on the points decided by them because this court is the final court in National Assembly elections.
In this case, the 2nd Respondent was not qualified to contest the governorship election that took place on 18/3/2023 having not been sponsored by a political party that had a structure on the ground.
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“Earlier in the judgment, his lordship had held thus;
“On this, it is my humble but firm view that the issue of sponsorship of a candidate by a political party to contest election under the 1999 constitution as amended is both a pre and post-election matter. The Apex Court in the case of Fayemi V. Oni (2018) LPELR 49291 held”……
“The successful conduct of the primary election as in this case is not a bar to question the qualification of a candidate who was declared as a winner since qualification is both apex and post-election Matter”
In INEC V. JEGEDE & ORS (2021) LPELR 54938 CA, it was held:
“That there is no disputing the fact that the issue of qualification is a pre-election as well as a post-election matter by virtue of section 138(1) of the Electoral Act, 2010 as amended”.
Looking at the above, it is crystal clear that the Court of Appeal was/is very right and on a firma terra in nullifying the election of Governor Muftwang and the same was in tandem with the apex court’s decision in the cases of Faleke V. INEC Supra, Dangana V. Usman Supra, Fayemi V. Oni Supra and Jegede V. INEC Supra. That being the case, how then can anybody blame the Court of Appeal for its decision in the matter?
That apart, another interesting point is the fact that by virtue of section 287 of the 1999 constitution, the Court of Appeal was right to enforce the decision of the Supreme Court by giving effect to it.
Therefore, the Court of Appeal merely gave judicial effect to the decisions of the apex court in the cases cited above which had decided the issue of non-qualification of a candidate as both a pre and post-election matter over which an election tribunal and indeed, the Court of Appeal in election matter, have full jurisdiction.
See also section 285(2) of the 1999 constitution which established the governorship election petition tribunal and donated the exclusive jurisdiction to adjudicate over petitions as to whether anyone has been validly elected to the office of governor or deputy governor of a state. It is submitted that by this provision, the tribunal, as well as the court of Appeal sitting in appellate jurisdiction, have the unquestionable vires to determine the qualification or otherwise of Governor Muftwang.
Again, since there is a subsisting court order on the status of the congress and purported primary conducted by PDP in Plateau state, any purported nomination in violation of such positive order of court will be illegal and that was the lethal virus that afflicted the nomination of governor Muftwang leading to the nullification of his election by the court of Appeal.
The reason for this is that the judgment of the court in suit No: PLD/J/304/20 which was given effect by the court of Appeal in appeal No: CA/J/EP/PL/GOV/52/2023, is a judgment in rem which is binding on all persons and authorities including the court of Appeal which did the right thing by nullifying the election after reviewing the decisions of the apex court on the point in other cases under the principle of stare decisis. On this point, the Court of Appeal observed on page 40 of the judgment that “Pursuant to section 287 of the 1999 constitution of the Federal Republic of Nigeria, all authorities and persons including this court are expected to observe and ensure the compliance of order/judgments of the court including High court particularly orders/judgment that are in rem.
One must quickly add that the relevant order here in suit No: PLD/J/304/2020, Exhibit G1 was made in rem and this court as earlier stated re-emphasized it in our judgment”. In Oyetola V. INEC (2023) 11 NWLR (PT1894) 182, the apex court defines a judgment in rem as; “a judgment contra mundum, binding on the whole world- parties as well as non-parties”. See also Kubor V Dickson (2013) 4 NWLR (Pt 1345) 534.
Thus, having regard to the duty imposed by section 287 of the 1999 constitution and the sanctity of the principle of stare decisis, the court was right and came to the right decision In nullifying the election of Governor Muftwang.
It needs to be pointed out however, that the case that gave rise to the decision of the court of appeal in this case sprang from an internal dispute amongst party members that is, by PDP members against other PDP members and not by APC members against PDP. Therefore, the issue of locus standi of APC cannot be raised.
What is more? In deciding the propriety or otherwise of non-qualification in the cases of Fayemi V. Oni Supra, Dangana V. Usman Supra, Folake V. INEC Supra and Jegede V. INEC Supra; the Supreme Court did not hold the view that the objectors or petitioners were not members of the Respondents political party.
To my mind, I believe allowing the election of a person not validly sponsored or sponsored against the order of a court of competent jurisdiction, is a great disservice to the administration of justice and will in the long run turn the judiciary into something else if parties are allowed to disobey a court order with so much impunity and disdain. May that day not come in our country when court orders no longer count or are obeyed.
One last point before I am done.
The PDP and its candidates for legislative houses that had been removed pursuant to the order of the court of appeal are claiming to be entitled to their seats.
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It is submitted that they have no right to so do because even though the apex court wrongly alluded to their removal, the court of appeal remains the final port of call on any question relating to state and National Assembly matters. See section 246(3) of the 1999 constitution.
Also, since the decision was based on an order of court which is still subsisting, the PDP and its candidates had no right to remain in the house more so that the Supreme Court had no jurisdiction on the case of National and State legislators. To appreciate this point, may I refer to the case of Kubor v. Dickson (2013) 4 NWLR (Pt 1345) 534, where the Supreme Court had this to say;
“in the instant case, the order was obeyed by restoring the name of the 1st respondent in the list of candidates and the election in question was subsequently conducted and the 1st respondent was declared winner thereof before the coming to an end of the reign of the order.
Unfortunately for the case of the appellants, exhibit “N” had achieved its purpose before becoming extinct. It was obeyed by the 3rd respondent as it was constitutionally required of every person or authority in the country to do so.
Thus, the extinction of exhibit “N” following the striking out of the suit in which it was made and after it was carried out did not retrospectively affect whatever the order secured of affected at the time it existed”
The same, taking a cue from the above decision, the PDP legislators have lost out completely because the court of appeal made the order within the 60 days allowed for it to determine election appeals.
Therefore, the legislators cannot be able to bring an action to set aside the order which is an extant one notwithstanding the non-binding observation of the Supreme Court. It is therefore suggested that the Supreme Court overrule the decisions in Fayemi V. Oni, Supra, Faleke V. INEC Supra, Dangana V. Usman Supra and Jegede V. INEC Supra to create a clear path to the status of non-qualification of candidates in an election, otherwise, those decisions will continue to be a point of reference by lower courts in future judicial deliberations and it will be difficult to sanction or vilify anybody for that.
Also, doing so will create a better understanding of the law on this point and obviate confusion in people’s minds.
