Events of recent have shown
several seismic and qua-tsunami decisions of our courts on several matters of national
importance, the apex court inclusive; particularly on teething issues touching
on various elections across Nigeria. This is evidenced by sudden twists in
order events and natural protocols occasioning controversies and majour
division on opinions cum reactions hovering from those decisions. Part of such
is evidenced by massive protests across-board and massive filing for review of
those decisions.
By this piece, I would focus
more on the Bayelsa State verdict but as matter of course mention states with
similar or comparable circumstances.
Taking a look at the recent
Zamfara State, Rivers State, Cross River state, Imo State, and Bayelsa State
election verdicts of the apex court. Without mincing words, I must commend the
said judgments’ to the extent that the end-effect is aimed at retribution and
correction of the rots and decadence in our electoral system, instilling sanity
in our political gladiators to be conscious of ‘consequences’ and bringing
about a sturdy, credible and fantabulous electoral institution.
On the other hand, I most
heartily condemn the said judgements and verdicts on the basis and precincts
that, by law, equity and justice, a stone in my Lords at the apex Court hands could
have been used to kill multiple birds, yet achieving same result as stated in
the preceding paragraph.
The essence of law is
justice. Justice has three constant dragonal heads; (1) Justice to litigant (who sued), (2) Justice to the Defendant (who was sued) and (3) justice to the society. For all
purposes, the utilitarian / benefit to the majourity values is rooted in
democratic and just societies. Utilitarian principle appreciates justice that
aligns with the majourity interest. Justice which satisfies the majourity
interest is paramount for a healthy, democratic, stable, peaceful and great
society. Mind you, justice as gotten by any of the litigant and the Defendant could
always align with that of the society.
Supreme Court is the apex
court of the land; she wears every toga of nobility which is rooted in Law,
equity and Justice; all of which is further rooted in ‘CONFIDENCE’. The words
‘Law’ ‘Equity’ and ‘Justice’ are arranged in order of preference from the
lowest to the highest because when the
interpretation of ‘law’ is too harsh, unreasonable or when strict adherence to
same would occasion injustice, The Courts are allowed to explore ‘equity’ which
at all time follows the law and SUPERCEDES same. Equity is seeing as better, dynamic
and preferable means to Justice when law fails or would occasion injustice. For
this reasons, the maxims of equity avails in all trials and circumstances as
important element of Justice. The reasons we are always welcomed to Court of “Law, Equity and Justice” by inscription on
the billboards of all court entrances of the commonwealth and same is universal.
In all spheres of human affairs, Justice is the ultimate goal of every judicial
process, otherwise, self help, societal breakdown and destruction is imminent.
On the vitality of equity and justice; My Lords at the
Appellate and apex courts have these to say in the following cases: AIKABELI V. AFRICAN PETROLEUM PLC. (2005) 1 FWLR Pt. 245, page
380, (2004) LPELR-12510(CA) ( P. 21, paras. B-C );
“… the
term “equity” denotes the spirit and habit of fairness, justness, and
right dealing which would regulate the intercourse of men with men – see Blacks
Law Dictionary 6th Ed.” Per AUGIE C. A.
The noble Lord of
all time, Per KARIBI-WHYTE ,J.S.C has
this to say on the applicability of equity where application of law would
produce injustice, the case of AKILU V. FAWEHINMI (NO.2) (1989) LPELR-339(SC) P. 82 Para
A
“Equity follows the law and is applied to
ameliorate the rigidity and inflexibility of the common law.”
On the meaning and application of equity, see
also AMECHI V. INEC (2008) 5 NWLR PART
1080 PG. 228; (2008) 2 FWLR PT. 414 PG. 1443; (2008) LPELR-446(SC) ( Pp. 278-279, paras. A-E
Apart from the doctrine of
equity which assists the law in doing justice, Several canons of Interpretation
of statutes have being in place for centuries to assist our courts in
interpreting words from its mere and ordinary meaning to achieving the legislative
intentions, utilitarian purpose and justice. In due time, I shall do a full
article in favour of this paragraph and the preceding paragraphs.
Supreme
Court Verdicts on Nazarawa, Rivers, Cross River And Bayelsa States
Of the recent decisions of
the current political dispensation is Zamfara case; wherein the Supreme Court
invalidated the entire votes cast for APC, the party who clearly won and swept
all political roots of the state during the general election; the fulcrum of
the said judgement was premised on the ground that there was no valid and/or
credible primary election for APC candidates before the said candidates were
presented for election. This same issue reared its ugly head at Rivers State
election verdict, when all votes cast for APC candidates were thrown out in
same line and declared as wasted. Although, the earlier scenarios are quite
different from that of recent Bayelsa Election where the APC candidate David
Lyon was disqualified as Governor-elect owning to the sin of his deputy /
running mate who was said to have presented credentials (not proven fake, but
assumed fake) based on disparity of names as contained in different credentials
submitted to INEC for the purpose of the election. I must state here
categorically, going by our societal values and flairs for title and names; honest mistake rooted in ignorance is
possible. Whereas, the trend now is parents giving 20 or more names to a
new born baby. If the baby grows up to love all the names or love more names,
he may ignorantly behave like Biobarakuma Degi-Emerieyo, by making ill-informed
and ignorant decision of inserting each of the names in his every of his
credentials. Does that mean he forged? Proof of forgery is criminal and must be
proven beyond reasonable doubt. See Alake
v. State (1993) 9 NWLR (Pt 265), section 265 of the Criminal Code Act.
The Zamfara and Rivers state
scenario is partially understandable to an extent that parties must ensure
discipline and fair process in the emergence of its candidates. Yet, the damage
occasioned by that judgement is mostly calamitous and reeking on the people of Nigeria
as whole, and people of Zamfara, Rivers and Cross River in particular; it is
agreed that the sponsoring party shot themselves on the foot by failing in due
diligence before presentation of its candidates. Yet, It must be noted that a lot
are committed towards ensuring the conduct of any election; ranging from (1) releasing funds in billions from the
national coffers, (2) printing of ballot papers in preparation, (3) campaign
and all hazards that come with same (4) training of personnel, (5) mobilization
and logistics, (6) continuous registration and giving of voters cards to
eligible voters (7) conduction of the election proper by citizens who would
stand and line up in the sun all day long, (8) the citizens wait in the sun or
rain for hours at the polling units to make sure the election is not rigged
and/or at least counted, (9) the results are later transmitted from one level
to the other for collation and (10) citizen would thereafter expect results by
keeping sleepless night till same is announced; all these (none exhaustive)
amidst the facts that some people would suffer from shocks, panics, and anxiety,
all time poverty, stroke, illness that comes with election, some would even lose their lives or get permanently injured.
If at the end of the above
entire tedious process, the people elected their leaders upon assessment and
trust, out of several considerations and considerables; how would it be justice
to the people of those states, if all
the efforts made toward having an election turns out rubbish and of no
significance. If the five wise men panel of the Supreme Court invariably set
aside the people’s decision and directly foist the supposed enemy and/or
someone they never wanted on them to rule over them; if someone who could not win
election from his people is brought from behind to rule over people who never
voted him, of what benefit is the
purpose of such tedious process called election cum democracy?
The essence of law is justice;
and what is justice? It has been interpreted in plethora of authorities as
fairness and being just in dealings. In UCH
BOARD OF MGMT V. MORAKINYO (2014) LPELR-23416(CA) the appellate court in
jurisprudential approach to the word
justice made reference to Aristotle viz;
“Aristotle defined justice as a concept
of what is lawful, fair or equal. He classified justice into two, distributive
and remedial justice. He defined distributive justice as: “Injustice
arises when equals are treated unequal and also when unequal are treated
equally” To him, just action is a means between acting unjustly and being
unjustly treated. The common saying is that justice should not only be done, but should manifestly and
undoubtedly be seen to be done. Justice must be rooted in confidence and
confidence is destroyed when right minded people go away thinking, the judge
was biased.”
In the circumstance
of those cases, could it be said by any right minded person and/or the
majourity who witnessed the election, participated and expected judicial
pronouncements, that the judgments emanating from the aforementioned appellate
verdicts made them feel there was not a bias? The answer is no! And such is
corroborated by several protests than jubilations, and unprecedented filing of
review of the said judgments in large number.
What
Could Have Been Justice On Bayelsa Matter
The law is trite, that it is
the political party and not an individual that wins election, Section 221 of the constitution
provides that
“No association, other than a political
party, shall canvass for votes for any candidate at any election or
contribute to the funds of any political party or to the election expenses of
any candidate at an election” see also EWII & ANOR V. PDP & ORS(2010) LPELR-4131(CA) ( Pp. 45-47,
paras. F-E ) where the appellate court in affirming the Supreme court decisions
in Amaechi v. INEC held as follows:
“ …The lower Tribunal was
also right by relying on the provision of Section 221 and the dictum of
Oguntade, JSC, in the case of Amaechi
vs. INEC (supra) to the effect that the provision of Section 221 of the
1999 Constitution: “Effectually removes the possibility of independent
candidacy in our elections and places emphasis and responsibilities in
elections on political parties. Without a political party a candidate cannot
contest. The primary method of contest for elective offices is therefore
between parties. If as provided in Section 221 above, it is only a political
party that canvasses for votes. It follows that it is a party that wins an
election…”
Before
a party can contest and win election, it must produce credible and good
standing candidates see EWII & ANOR
V. PDP & ORS(2010) supra
by section 187(1) of the constitution
of Nigeria, nomination of candidate for the office of a Governor is not valid except a running mate known as
Deputy governor is jointly nominated with him. Also by section 187(2) of the
constitution, it states further that all fact relating to qualification and
disqualification of Governor shall apply to Deputy Governor and vice versa. The
reason both the Governor and the deputy must rise and sink together.
looking at the direct
interpretation of the law above, it could be harsh and absurd if given direct
meaning and I make bold to state categorically that same would lead to manifest
injustice; as manifestly seen when the will of the people of Bayelsa was thwarted
and imposition was made on them to be led by the person they never chose or
wanted as their leader, despite the rigorous process they went through to elect
such leader.
The Golden rule of
interpretation imposes duty on the court to interpret statutes to suit justice
when a literal interpretation and application of same would lead to absurdities,
inconsistencies, ambiguity and/or miscarriage of justice. See Attorney General of Ondo State v. Attorney
General of the Federation (1983) 2SCNLR 269. Lawal v. Olivant (1972) 3 SC,
Adesanya v. President (1982) 1 NCLR 236 at 267.
In the locus classicus
English case of Beck v. Smith (1836) 150
E.R. 736, Parke B. remarked that it is a very useful rule in the construction
of a statute to adhere to the ordinary meaning of the word used, and to the
grammatical constructions, unless that is at variance with the intention of the
legislature to be collected from the statute itself, or leads to any manifest
absurdity or repugnance, in which case the language may be varied or modified
so as to avoid such inconvenience. See also Grey v. Pearson 91857) 6 H.L Cas 61; {1843-60} All E.r. Rep. 1
In Re Singsworthe (1935) Ch. 89, a son that murdered his mother was
disallowed from succeeding to the estate of the deceased as ‘the issue’ in
order to ensure that he did not benefit from his crime. Thence, the word “and” a conjunctive word as used in
section 7 of the English Official Secret Act, 1911, was taken to mean “or” a disjunctive word in order to
make sense of the section. Also in the case of R. v. Federal steam Navigation co. Ltd. (19740 1 W.L.R 505; (1974) 2
All E. R. 97; Owner “or” master
was interpreted conjunctively, to render both the owner and the master liable
under the oil in Navigable Waters Act, 1955.
I must state that the above
is the power of my Lords in doing justice to deserving situations. Laws must be
interpreted at all time to suit the interest of justice.
Were
the laws interpreted in the nasarawa, rivers, bayelsa judgements to give true
legislative meanings not leading to absurdities, inconsistencies, ambiguity
and/or miscarriage of justice?
I would answer the above in
the negative and in full capital letter exclaimed NO! The judgement is conundrum. Of the gargantuan provisions for
election as contained in our constitution, electoral act and other laws, no
legislature or draftsman of these laws would ever imagine that a party not
voted for is imposed on the people. No legislature or draftsman of those laws
would ever imagine that all lawfully cast votes would be declared as wasted or
useless by the court. No legislature or draftsman of those laws would ever
imagine that anyone or party could win an election via backdoor when people has
not voted for same or want him as their leader. No legislature would have
intended that the whole tiring efforts put in an election is wasted, dashed and
rubbished by interpretation of law in order to impose people’s ‘enemies’ to
rule over them. ‘Enemies’ as used in this instance means someone you never
chose, desired or wanted when given the choice to choose.
Could
the provisions of law have been interpreted with the aid of several canons of
interpretation, equitable principles and public policy to give a deserving
result?
I answer the above in the affirmative.
Like earlier said, the end product of all judicial process is justice;
especially in order to serve utilitarian purpose and advance public policy.
Justice is rooted in confidence and our nation would be greater for same.
I have in the preceding
paragraphs addressed issues relating to the best canon of interpretation of
statute suitable for the instant cases in the interest of justice. I posited
that the golden rule of interpretation would have best suit the purpose of
justice, especially to the people of the affected states, whose wishes and will
was truncated via the judicial process.
Without much ado, I would
briefly address why equity ought to have been invoked in the interest of public
policy, rule of law and democratic standards expected of a civilized society, besides
the canons of interpretation; all which end result is to aid justice: the
doctrine of Equity has been expatiated in the case of CYPRIAN V. UZO (2015) LPELR-40764(CA) Per ABIRU ,J.C.A ( Pp. 33-36,
paras. F-A ) has this to say on
equity.
“Equity is a source of
law, which has always retained the characteristics of infusing elements of
fairness or justice into the legal system as a whole by the very process of
mitigation of strict legal rules. It must however be realized that this
characteristic, if care is not taken, is
very often suppressed by technical legal reasoning or even worse still,
nullified in preference for a rigid rule-based system of justice, This is a
serious defect, which to my mind, always stems from two sources;
narrow conception of property law and our much often adherence to legal
positivism. That law in its raw form, is rigid, admits no argument. It is
equitable principles that do water down this rigidity. It therefore seems
to me that maxims of equity, if properly understood, constitute parameters for
the legal determination between conscionable and unconscionable conduct”
Strict application of the principle of privity of contract to the case at hand
in the face of the totality of the facts and evidence before the lower Court,
will definitely work avoidable injustice to the present case. This Court is of
the firm view that if the two principles (i) that equity looks to the intent,
rather than to the form; (ii) that equity imputes an intention to fulfill
obligations, are applied in this case, and they must be applied if it is agreed
that equity concerns itself with standards of good conscience, fairness and
justice, and that it protects relationships of trust and confidence and invests
the Court with power to grant a relief where the justice of a case demands,
then the finding of the lower court that the terms of Exhibit 3 were binding on
the Appellant must be upheld – National Insurance Corporation of Nigeria Vs.
Power and Industrial Engineering Co. Ltd (1986) 1 NWLR (Pt 14) 1 Yusuf Vs.
Adegoke (2007) 11 NWLR (Pt 1045) 332.”
Also in the case of AMAECHI V. INEC & ORS (2008)
LPELR-446(SC) ( P. 281, paras. B-D ) Per ADEREMI, Justice of the Supreme
Court expatiated on the doctrine of equity as assisting the law viz;
“That is why I have had
resort to equitable principles for one purpose alone and that is to assist law.
After all, equity does not make law, it is only there to assist law. As was
said by Eso, J.S.C. in Trans Bridge Co. Ltd. v. Survey Int. Ltd. (1986) 4 NWLR
(Pt.37) 576, Law Lord said at page 597 and I quote him:- “Equity is not a
warlord determined to do battle with the law. It is part of a legal system
which has mixed with the law and the admixture is for the purpose of achieving
justice. The well known Maxim is: “Aequitas non facit jus, sed juri;
auxiliatur”Per ADEREMI ,J.S.C ( P. 281, paras. B-D )
It is trite that the court
is permitted to invoke equity when law is harsh, raw and the end result would
lead to injustice; that is the essence of equity. Invocation of the maxims of
equity in deserving situations is allowed in the interest of justice.
Therefore, why would the Supreme Court not use these same equity principles in
the interest of the people of Nasarawa, Rivers, Bayelsa States and Nigerians
who funded the election as a whole. With due respect to my Lords at the apex
court, much more was expected in the administration of justice in such lines;
as justice to the state and/or the people is ranked paramount and most
important, all round the universe. Same is rooted in the popular democratic
principle it itself. Public or utilitarian satisfaction is of utmost importance
in all spheres.
What
Should The Supreme Court Have Done In Deserving Situations Of These States
I am of the subtle opinion,
that by combined effects of law, equity and justice, instead of the Supreme
Court voiding and wasting the votes owning from state efforts, resources and
the efforts made by the entire affected people towards conducting elections to
elect their leaders, now replaced with undemocratic verdict of placing or
imposing persons they never voted for on them as their respective rulers,
violates every sense of fairness, public policy, good conscience, equity and
justice.
Three
suggested way out in Bayelsa situation
I hereby suggest three
majour way out of the ugly incident; 1.
That in consideration of efforts made towards conducting such election, the
manifested will of the people in play, and in the interest of equity and
justice, the provision of section 187 of the constitution ought to have been
interpreted in such a way that only the deputy Governor candidacy would have
been voided and with a consequential order that same be replaced by the party
forthwith with a more acceptable candidate within a specified limited period of
time. 2. Since the swearing-in of
the candidates as Governor and deputy is less than 24 hours to the time of
verdict, the Supreme Court could have invoked necessary provisions of the constitution
ordering the Speaker to take charge of the state pending the ordered resolve on
valid candidacy and/or fresh election 3.
The court could have read together the provisions of section 187 of the
constitution and section 140 of the Electoral Act and order a fresh election,
in order to re-assert or revalidate the will of the people as done in Muazu
case.
At this point, I must make
mention of the provision of Section 140(2)
of the Electoral Act which states as follows;
“Where an
election tribunal or court nullifies an election on the ground that the person
who obtained the highest votes at the election was not qualified to contest the
election, the election tribunal or court shall not declare the person with the
second highest votes as elected but shall order a fresh election.”
Going by the above provision of law, it is important to make
mention categorically that an order for fresh election can only be made after
an order nullifying the election has first been made. See AGBAJE V. INEC (2015) LPELR-25651(CA). it is therefore
sacrosanct to ask this vital question; can the supreme court suo moto make a
consequential order flowing from reliefs sought in the interest of justice,
even when such order was not asked for by any of the parties? The answer is YES!
See the case of AMAECHI V. INEC & ORS (No. 3)
(2007) 18 NWLR Part 1065 pg. 105; (2008)
2 FWLR pt 414 pg 1443; (2008) LPELR-446(SC), P.
113, paras. A-B where the apex
court decided on whether court can grant a consequential order even when it has
not been asked for or contained in the reliefs sought by party(ies) in a suit
as follows:
“It is the law even where a
person has not specifically asked for a relief from a Court, the Court has the
power to grant such a relief as a consequential relief. A consequential order
must be one made giving effect to the judgment which it follows. It is not an
order made subsequent to a judgment which derails from the extraneous judgment
or contains matters.” Per MUSDAPHER
,J.S.C
In the circumstance the Supreme court
should have given live to the provision of section 140(2) of the electoral Act
and do justice accordingly.
Also by
precedent, in the case of BALEWA V.
MUAZU (1999) 5 NWLR (PART 603) PAGE 636., BALEWA v. MUAZU & ORS (1999)
LPELR-6515(CA) at page 14, paras. A – C, the appellant Alhaji Adamu Tafawa
Balewa who was the candidate of the then All People’s Party (APP) challenged
the return of the PDP candidate Alhaji Ahmed Adamu Muazu and his running mate,
Alhaji Kaulaha Aliyu in the Bauchi State Governorship election conducted on the
9th of January, 1999 on the ground that his running mate was disqualified on
grounds of dismissal from the civil service. In that case, the Election
Tribunal dismissed the petition but the Court of Appeal allowed Balewa’s appeal
and declared the election null and void. The Court held that the
disqualification of the Deputy Governor elect also disqualified the Governor
Elect since they were elected on a joint ticket. INEC conducted a bye-election.
Balewa
brought an application before the Court of Appeal for a review of its judgment
and sought “An order to clarify or direct whether the applicant is not entitled
to be returned as Governor elect of Bauchi State, the election of the 1st and
2nd respondents having been nullified as per the judgment of this honourable
court delivered on 20/3/99. He also sought “A consequential order nullifying
the Bye Election conducted on the 10th April. 1999.”
The Court
of Appeal in refusing Balewa’s application further held that:
“To do otherwise and accede to the
request of the applicant to declare him as elected will certainly amount to an
imposition on the electorate. To do that will negate all the known principles
of democracy. Democracy demands that any person wishing to rule must get the
mandate of the people. There are no two ways about it. “
The Bayelsa situation which
ought to serve utilitarian purpose and which is in line with the provisions of
the electoral act is on all four with that of Bauchi earlier decided in 1999;
although by the Court of Appeal, therefore not binding on the supreme court but
same seems better in application to law and justice in deserving situation. We
hope by the current review application, same would be looked into.
In appreciation of the jurisprudential
position of justice as a disablement to societal anomalies vis-à-vis the
retributive necessity of same, it is sacrosanct to note that where the
punishment of few would lead to manifest injustice and sadness of the
majourity, retributive justice should sparingly and reluctantly be used and/ or
used in the utilitarian interest.
Inconsistent
History Of Governors And Running Mates From Judicial Process
From all indications, law is
failing on daily bases, we should be more concerned with justice; it is worrisome
that by same judicial process bothering on governors and running mate, the
court had in the last 20 years of our democracy blow hot and cold, Viz;
a.
In 1999, the running mate of
Governor Muazu of Bauchi State was dragged
before the appellate court for fake certificate, same court nullified the
election and order a fresh election in line with the provision of section
140(2) of the electoral Act
b.
In 2007 the Supremem Court
scaked Governor Celestine Omehia but retained his deputy Tele Ikiru
c.
In 2015, James Faleke of the
then APC was not allowed to inherit Abubakar Audu votes, when he droped dead
before being announced winner, despite the fact that they are on joint ticket.
d.
In 2019, David Lion of APC
was punished by the Supreme court for the sin of his deputy because they are on
joint ticket
From
the above, It is crystal clear that there have not been consistency on judicial
pronouncements touching on our electoral system, especially as regarding
Governors and deputy Governors. Yet, in all, I advocate for justice geared
towards utilitarianism.
I
part with the words of my Lord in the case of INAKOJU & ORS V. ADELEKE & ORS (2007) 4NWLR pt
1025 pg 423, ( 2007) 2 FWLR Part 366 pg 2403;
(2007) LPELR-1510(SC) (
Pp. 123-124, paras. E-C ) where Per NIKI TOBI, J.S.C has this
to say (dictum):
“Justice
is not only one loud and large term, it is a most important expression in the
judicial system and the administration of justice, and here I emphasize justice
in the context. Justice in its simplistic content means quality of being just,
fair play and fairness. It has an element of quality of egalitarianism in its
functional context. Lord Denning, a very fine Judge, in his very well written
book, Family Story, said at page 174: “My root belief is that the proper
role of a Judge is to do justice between the parties before him. If there is
any rule of law which to do justice in the instant case before him. He need not
wait for the legislature to intervene; because that can never be of any help in
the instant case. I would emphasize, however, the word ‘legitimately’; the
Judge is himself subject to the law and must abide by it.”
We all desire a
justice inclined judiciary than technicalities prone and only law inclined one,
wherein interpretations of statute would most often occasion injustice. It only
by this our society can be well engineered towards trust, confidence, and
healthy nation.
By several
applications filed, I hope a lot would be corrected by the review applications
pending before my Lords.
Richarmond O. Natha-Alade is a legal
Practitioner and Principal Partner at
Sun Natha-Alade &
Partners (SNATHAP)
lordricharmond@gmail.com
