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Controversial Supreme Court judgments redirect public attention to its image

By Joseph Onyekwere
25 February 2020   |   4:20 am
On February 13, 2020, the Supreme Court delivered a judgement in the case between Peoples Democratic Party (PDP) and two others verus Biobarakuma Degi-Eremienyo and three others. In its 24 pages lead judgment delivered by Justice Ejembi Eko...

The last time the apex court gained so much public attention similar to the current brouhaha was when the former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, was accused of breach of code of conduct by a seemingly unknown group. He was tried by quasi-judicial tribunal and finally suspended from office by President Muhammadu Buhari, a situation that led to his premature exit. Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE, in this report examines the recent controversial decisions by the apex court, tries to draw the distinctions as well as the impact of the judgments on the already battered image of the highest court in the land. 

On February 13, 2020, the Supreme Court delivered a judgement in the case between Peoples Democratic Party (PDP) and two others verus Biobarakuma Degi-Eremienyo and three others. In its 24 pages lead judgment delivered by Justice Ejembi Eko, the court made a consequential order, directing the 4th respondent, which is the Independent National Electoral Commission (INEC), to withdraw the Certificate of Return earlier issued to the governorship and deputy governorship candidates of the All Progressives Congress (APC), Mr. David Pereworimin Lyon and Mr. Degi-Eremienyo respectively, and to issue a fresh Certificate of Return to the candidate who had the highest number of lawful votes cast in the governorship election and who also had the requisite constitutional geographical spread. By this decision, the apex court killed the dream of Mr. Lyon, who was already hours away from being sworn in as governor. Expectedly, while the victors rejoiced, the vanquished mourned and the public bewildered. 
Before this judgement, the same court had on January 14, just a month earlier, sacked the governor of Imo State, Emeka Ihedioha of the PDP and replaced him with Hope Uzodinma of the APC in an equally controversial circumstance, the outcome of which is now before the apex court again for review. Prior to those two decisions, the apex court had had the opportunity of delivering a ruling on the appeal by the PDP and it’s candidates in Osun State, where issues bordering on the power of INEC officials cancelling elections results featured prominently but was unsuccessful in technical ground of the absence of one of the judges in the panel. Similarly, in that of the presidential election, issues about multiple names and candidates certification were raised and resolved differently. Closely tied to the Bayelsa case was that of Kogi State, where a running mate to late Abubakar Audu, Mr. James Faleke failed to convince the Supreme Court to allow him become the APC’s governorship flag bearer for the reason that it was a joint-ticket. 
There is no doubt that the apex court decisions on those political cases and subsequent outcry are all an indication that they did not meet the expectations of the majority of Nigerians. The effect, ultimately is a brewing negative perception about the image of the final court in the land. However, the issues arising from all those judgments may be best appreciated if one is seized of the relevant facts, findings and conclusions which birthed the consequential orders made by the apex court.

In the Bayelsa case, there is no doubt that Degi-Eremienyo had a bad case. The Supreme Court reasoned and rightly so, that he gave false information to INEC. It is one thing for a person to bear multiple names, but becomes a legal problem when the multiple names appear on different official documents, and the efforts to explain the contradictory names leads to more contradictions. The major challenge in the decision here was whether it was right to punish Lyon for the “sins” of his running mate? Section 187 (1) and (2) of the Constitution of Nigeria, 1999 (as amended) provides as follows:
“(1) In any election to which the foregoing provisions of this part of this Chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions. (2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor.”
According human rights lawyer, Inibehe Effiong, the implication of the foregoing constitutonal provisions are apposite in the instant case. A governorship candidate, he said, must nominate an associate (or running mate) who is to occupy the office of deputy governor. “A political party cannot participate in a governorship election except it has validly nominated her governorship and deputy governorship candidates who must satisfy the constitutional requirements for the election.

Section 187 of the Constitution reproduced supra provides for a joint ticket; the governorship candidate and his deputy will swim or sink together.“As far as the November 2019 gubernatorial election is concerned, their destiny was conjoined. It should be emphasized that a governorship candidate and his deputy are subject to the same qualification – in terms of citizenship, age, educational attainment and membership of a political party,” he stated. He argued that the Supreme Court could not have ordered INEC to conduct a fresh or bye election, instead of ordering INEC to issue Certificate of Return to the candidate with the highest number of valid votes cast in the election because was a pre-election matter. Pre-election cases, he said usually raises issues affecting the propriety of a candidate’s or political party’s participation in an election.Effiong noted that although arguments for a fresh election or rerun are founded on the idea that it is the electorates and not the courts that should determine who should lead a state, the law sees the candidates as not qualified to participate in the election in the first place. 

“The Supreme Court at page 22 of its lead judgment specifically declared that both the governorship candidate and his running mate are “deemed not to be Candidates at the Governorship Election conducted in Bayelsa State”. In essence, the doctrine of wasted votes enunciated by the Supreme Court in several pre-election cases, including its recent judgment in Appeal No. SC/377/2019 between (APC) & ANOR. V. Garba Marafa & 179 others delivered on May 24, 2019 in respect of the 2019 elections in Zamfara State was applied in the Bayelsa case,” he argued.

Legal distinctions 
The major distinction in the case of Kogi State borders on the death of a running mate. Although Bayelsa and Kogi issues are both pre-election matters. The difference is that in  the case of Bayelsa, the running mate didn’t die unlike in Kogi. Imo’s case is a post election matter, which has different facts.Law lecturer, Babcook University, Dr Abangwu Nzeribe said the judicial outcome of the governorship election of both Imo and Bayelsa states has generated intense legal and political controversy. Explaining the basis for the challenge of the qualification of the APC deputy governorship candidate in Bayelsa, Nzeribe said: “It should be noted that Section 31(5) of Electoral Act 2010(as amended) provides that: “A person who has reasonable grounds to believe that any information given by a candidate or any document submitted by that candidate is false may file a suit at the High Court of a state or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false”.He added that section 31(6) of the said Electoral Act gives the court the power to disqualify such candidate if the court discovers that the information submitted is false.

“It was based on the provision of the law that PDP candidate challenged the qualification of Mr. Degi-Eremienyo and by extension the qualification of the APC governorship candidate, Mr. Lyon in line with section 187(1)(2) of the Constitution of Nigeria (as amended), which provides for a joint candidateship wherein the governorship candidate and his running mate will swim or sink together.
“So, by a community reading of section 187(1)(2) of the constitution and section 31(5)(6) of the Electoral Act 2010 (as amended), the Supreme Court specifically declared that both the governorship candidate of the APC and his running mate were deemed not to be candidates at the governorship election conducted in Bayelsa state in November 2019, the duo having ab initio not qualified to stand for the said election.
“It is my opinion that this decision reflects the long standing principle of law as adumbrated in the old case of Mcfoy v.UAC, where the erudite Lord Denning declared that one cannot build something on nothing and expect it to stand. I dare say, such a labourer labours but in vain.“Therefore, the governorship candidate of APC and his running mate, having been disqualified in the first instance, were not and could not, in the sharp eagle eye of the law be candidates to that election how much more winning same,” he stated. 
Comparing the governorship election of Imo state with that of Bayelsa state, he said may appear to be comparing two parallel lines. “This is because Imo state was a post election matter while Bayelsa case was a pre election case. It should be understood that pre-election cases usually raise issues affecting the propriety of a candidate or a political party’s participation in an election. Thus, the case of Bayelsa state was predicated on the issue of forged certificate which invariably affected the governorship candidate due to their joint ticket. 

“The case of Imo state hovers on the proprietiness or otherwise of adding disputed votes from 388 Wards to APC by the Supreme Court. Bringing the Supreme Court decision in James Faleke pertaining to 2015 governorship election in Kogi state to the current arena of combat with regard to the Bayelsa state governorship election is inappropriate because no two cases are the same. 
“Sometimes there may be some distinctions without a difference or differences without much distinction. What matters most, as clearly stated  in INEC & Anor. v. Ray (2004)14 NWLR (part 892)129, is that a case is only an authority for what it decides. Kogi state election had not been concluded before the death of the governorship candidate, Abubakar Audu. But before his death, he was coasting home to victory. So many issues were raised including whether his running mate could step into his shoes or whether the party could conduct fresh primaries to pick another governorship candidate and whether the votes already cast for the dead governorship candidate could be inherited by a new governorship candidate. It was that that threw up the current governor of Kogi state in 2015,” he recalled. 
For Lagos attorney, Mr. Kunle Adegoke the Supreme Court decisions on Imo and Bayelsa governorship elections attracted lots of criticisms and public agitations. According to him, the more vocal section of the Nigerian populace on this issue seems to be most uninformed unfortunately. There is nothing wrong with the decisions of the Supreme Court in the two cases, he said. 
According to him, what played out in the Imo case is that a petitioner complained that results from a number of polling units in the State were excluded in the final result by which the winner was declared. Adegoke said: “He sought the intervention of the Court to have such results collated in order to finally declare the winner. The two parties had the opportunities to present their cases and the apex court came to the conclusion that if the results excluded were added, the APC candidate actually won the election.
“What transpired in that case is similar to the locus classicus decision of the Supreme Court in Omoboriowo v. Ajasin [1984] NSCC 81 in which the petitioner alleged that wrong results were used in declaring the winner of the election; urged the court to add the true results together and declare him the winner. This was accepted by the trial Court and was upheld by the Supreme Court. There is nothing wrong with the court admitting genuine and authentic results produced from the field in declaring a winner.“It would amount to electoral injustice for the Court to have held otherwise. This is what the Supreme Court has done in the recent Imo case and any attempt by the Supreme Court to review itself in this same case would only open the floodgate of such applications for the court to review itself in all cases it has ever handled.”
In the Bayelsa case, Adegoke stated that the Supreme Court would only be perpetuating injustice if it had held that the elections of the APC candidates were valid despite the non-qualification of the deputy governorship candidate of the party. He explained that it is a joint ticket and the invalidity of one leads to the nullification of the other and that has always been the correct position of the law. “If the party fields an incompetent candidate and the court nullifies its candidate, the court is not wrong. It is the party that is wrong. That scenario is different from the Kogi case when Alhaji Abubakar Audu died and his deputy governorship candidate could not step into his shoes. The reason is that the election was still on and was not yet concluded when the governorship candidate died. Nobody had been declared winner of the election. The governorship candidate had no shoes into which the deputy could step. The unfortunate demise of Audu necessitated the party being allowed to complete the election by nominating another candidate and in the circumstance, the person who came second in the primary election.
“The case of Bayelsa is different in this wise. The election was already concluded and the winners were already declared only to discover that a leg of the ticket was broken and the ticket could not stand. A party that fields such an incompetent ticket is the one to bear the loss. That is also different from what happened in Adamawa in 1999 when Alhaji Atiku Abubakar, who had won the governorship election was nominated as the vice-presidential candidate of PDP. He and his deputy, Boni Haruna, had been declared winner and the election was concluded. Neither of the two legs was faulty or broken as the two of them were qualified and competent. The only situation that confronted the law was the non-availability of the governor-elect to assume office and the Supreme Court in PDP v. INEC interpreted the word “die” in Section 37(1) of Decree No. 3 of 1999 to include “disappearance” “non-availability” etc. and by which the deputy was allowed to step into the shoes of the governor. See PDP v. INEC [1999] 11 NWLR (Pt. 626) 200 @ 256 (per Kutigi JSC),” he explained.
Adegoke added that no court would declare a fresh election to be conducted simply because a party failed to field a competent candidate. For him, it is like nullifying the entire election simply because an errant participant failed to comply with the rules and by which he fraudulently emerged winner. “Where an athlete is found to have won a race or game by reliance on abuse of substance, he would be stripped of the medals and the competition would not be organised afresh among other participants. It would amount to punishing other participants by saying that the election should be conducted afresh. People who are advocating such a course of action are not only mischievous but unconscionable,” he declared.
National publicity secretary of the Nigerian Bar Association (NBA)), Bar Kunle Edun said even though the Supreme Court is the apex court in Nigeria and its decisions final, it does not mean that it cannot make mistakes. His words: “We understand that the decisions in Imo and Bayelsa States elections are now under review by the Supreme Court. We have to thread carefully here, so that the Supreme Court does not end up hearing applications for review of all appeals. There may be obvious cases where a review would be the right thing to do. In such a situation, the injustice sought to be remedied must be very obvious and real, not flimsy.”
Edu complained that the justices of the apex court are over worked. “It is not a secret that the Supreme Court Justices are over worked. The Court is yet to have its full complement of Justices inspite of the recommendations of the NJC to the President for the appoinment of more Justices. These are issues of great concern that can impact on the productivity of the Justices of the Court,” he said.
For Lagos lawyer, Bar Stephen Azubuike the events that took place in Kogi, Imo and Bayelsa are quite distinct, although they all sent similar wave of shock to the public. In Kogi, he noted, the Supreme Court was persuaded to overlook the running mate to a deceased governorsip aspirant in favour of another who came second at the primaries, all in the same party. 
“In Bayelsa, the disqualification element of a running mate was held to contaminate the status of a governorship candidate who won the election and became a governor-elect. This development benefited an opposition party. It will take a long time for us to comprehend the justice, if any, in the position taken by the Supreme Court.

While we do not strictly contend that Kogi should be followed (because the facts are distinguishable), we find it difficult to willingly bow in agreement with the Supreme Court’s decision in Bayelsa,” Azubuike stressed, adding that the court must be at the receiving end for sending electrifying shocks across the country.

“The clamour is not what troubles the conscience of the apex Court but the compelling duty to do justice to all without fear or favour. Only by this, shall we judge the Supreme Judges of the nation.”Also on the issue, renowned constitutional lawyer, Chief Mike Ozekhome (SAN) argued that the legal effect of the disqualification of the deputy governorship candidate of the APC in Bayelsa State under the Constitution and the Electoral Act, simply means that the APC has no governorship candidate at all in the November 16, 2019 gubernatorial elections. 
“By virtue of section 187(1) of the 1999 constitution, ‘a candidate for the office of governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of governor, who is to occupy the office of deputy governor and that candidate shall be deemed to have been duly elected to the office of deputy governor if the candidate who nominated him is duly elected as governor in accordance with the said provisions’.
“Section 186 which precedes this section 187 creates the office of deputy governor. Section 187(2) emphatically states that all the provisions regarding qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and oath of governor shall equally apply to the office of deputy governor as if references to governor were references to deputy governor.
What this simply means is that any ticket devoid of a joint running mate is automatically invalid, null, void and of no effect whatsoever, because it is simply unconstitutional.“The constitution envisions and has deliberately made a governorship candidate to be a siamese twin with the deputy governorship candidate in any election, sharing the same unbreakable umbilical cord.

One without the other is not competent to contest. It will tantamount to a futile attempt to play Hamlet without the Prince of Denmark or to argue that six is not the same as half a dozen. Where a governorship candidate cannot therefore produce a deputy governorship candidate, his candidature lapses into historical electoral oblivion. His aspiration abates and dies prematurely and completely. As dead as dodo. This is the law. No sentiments about it. No lachrymal effusion. No politics,” Ozekhome stressed. 

Reps seeks appointment of more Supreme Court justices
The supreme court justices are seen as being over worked due to the combination of the work-load of appeals in its docket and shortage of adequate manpower. Those may have added to stir the House of Representatives up to request the appointment of more justices to the Supreme Court in order to accelerate the determination of cases and dispensation of justice.The decision followed the adoption of a motion initiated by Mr. Onofiok Akpan Luke under matters of urgent public importance at the plenary presided by the Deputy Speaker of the House, Ahmed Wase.
Luke (Akwa Ibom PDP) argued that the initiative was in line with the provision of section 230(2)(b) of the 1999 Constitution which prescribes the maximum number of the justices of the Supreme Court to be 21. The lawmaker claimed that he was aware that the number of justices of the Supreme Court has been reduced to 13 with the recent retirement of Justice Amiru Sanusi from the court, adding that the situation will become worse owing to the impending retirement of another justice of the court in few months from now.
Luke expressed concern that the reduction in the number of justices will slow down the dispensation of justice and affect the pace at which matters are meant to be determined, and will put the available number of justices of the court under immense pressure as there are many cases to be decided by the court.
He further stated that some cases stay undecided in the Supreme Court for over 10 years and that as of now, the diary of the Supreme Court is full with no date for a new appeal until 2021. He thereby maintained that appointing new justices to the Supreme Court will accelerate justice dispensation, expand the course of justice and increase citizens’ access to justice.

Lawyers react to appointment of more justices for Supreme Court
Former director general, Nigerian Institute of Advanced Legal Studies (NIALS), Prof. Epiphany Azinge (SAN) said the appointment of more justices of the supreme court, to a very large extent, it is long over due. He said section 230(2) of the constitution prescribes the composition as Chief Justice of Nigeria and such number of Justices of the Supreme Court not exceeding 21 as may be prescribed by an Act of the National Assembly. 
“Two options now: either an amendment to the constitution increasing beyond 22 or enactment of an Act of National Assembly increasing to 22 in the first instance. We have never enjoyed the full complement of the constitutional provision as regards the number of Justices that is required. Even the challenging dockets they have has made it difficult for them to expedite action in that court. One would expect that the only way forward now is to have a full complement as far as the constitutional provision is concerned. 
“The thinking is that, should that be the case, we can have about three panels of the court sitting simultaneously when the panels are constituted. In other words, if we have three or four panels of five justices, excluding the chief justice, that would go a long way. If we are saying that we are entitled to have 21 as the case maybe, if we have five justices in four panels, excluding the chief justice, in circumstances where constitutional issues come up, a seven man panel can sit.  
“We cannot under emphasis the importance of having a full court and while we are unable to achieve this over a period of time is what I cannot say.  The constitution says at least 21 and we have never exceeded 15 at any point in time. The last proposition is that they should get them to about 17. All I am trying to say is if you ask questions on why they have refused to appoint full complements of the justices, all they will tell you is that they don’t have money for their accommodation, supporting staff and all the rest of that. I keep telling them that that argument does not fly at all in the face of commonsense. The judiciary is not an arm of government that one should toil with,” he warned.
Azinge declared that the cases that are being heard now, apart from constitutional and political cases are cases that are filed 10 years ago. “In other words, the Supreme Court at this point in time has just begun to hear cases of 2010 or below. Any body filing any case now is not sure that that case would be heard until 2030. It is unbelievable! And we kept saying that justice delayed is justice denied. Within this period, you can be sure that we will be having scattered elections across the country and we will still clog the Supreme Court with such matters, especially in situations where governorship elections are involved,” he stated.
He advocated the creation of constitutional court. The constitutional court, he said can now take away all the challenges of political cases by hearing such matters and save the Supreme Court from hearing those matters. Supreme Court, according to him, can now become the final court in terms of presidential elections, so, the constitutional court would become the tribunal of first instance in presidential cases, while the final arbiter would be the Supreme Court. 

Lagos lawyer, Mr. Theophilus Orumor
citing section 230(2) of the 1999 constitution noted that the constitutonally prescribed number is 21, regretting that the court is presently far less. His words: “The political/constitutional cases have taken up about 80 percent of the current schedule of work of the Supreme Court. I therefore support the move for the appointment of more justices, as this would greatly lessen the burden of work on the present justices. Section 230(2)(b) should even be amended to increase the number of justices to like 39 instead of 21. There is need for other matters that are not political or constitutional to make progress.”
Adebayo Akinlade, Chairman of the NBA, Ikorodu branch reiterated that the Supreme Court of Nigeria needs its full compliment of the numbers of Justices to deal with the hundreds of backlogged cases before it, because the current justices are over worked already.But thinking differently, Charles Adeyemi Candide-Johnson (SAN) described the Supreme Court as the broken crown of a broken and utterly dysfunctional justice system. “It’s not about the number of seats, or the number of ethnicities that you can cram into the space. It is about fixing a process, which does not elevate the best minds, the most skilled and the most competent lawyers to the higher benches. And it’s about reforming procedures and processes so that they are simple, accessible and efficient. It is about infusing a philosophy of service to the public who are dangerously ill served by the present broken system,” he stressed.