Lawan in, Machina out: Supreme Court decision splits lawyers

With a split judgment of three to two, the Supreme Court, yesterday, nailed the aspiration of Bashir Sheriff Machina 18 days to the election, when it announced the Senate President, Ahmad Ibrahim Lawan, as the Senatorial candidate of the All Progressives Congress (APC) for Yobe North Senatorial District.

• Lawan hails verdict, says it’s victory for APC, democracy
• Yobe APC gets reconciliation committee to meet Machina

With a split judgment of three to two, the Supreme Court, yesterday, nailed the aspiration of Bashir Sheriff Machina 18 days to the election, when it announced the Senate President, Ahmad Ibrahim Lawan, as the Senatorial candidate of the All Progressives Congress (APC) for Yobe North Senatorial District.

The apex court in the majority judgment voided and set aside judgments of the Federal High Court and the Court of Appeal, which affirmed Machina as the candidate, having won the May 28, 2022 primary unopposed.
The Senate President did not participate in the primary for National Assembly elections, as he was at the time a presidential aspirant and contested for the ticket of the ruling party, which held on June 8, 2022.

The ground of voiding the two earlier judgments by the Supreme Court was that Machina adopted originating summons to invoke his case at the Federal High Court.

Justice Centus Chima Nweze, who delivered the majority judgment of the Supreme Court, held that Machina ought to commence his case at the Federal High Court with writ of summons in view of grievous allegations in his suit against the defendants.

Nweze said that hostile issues were involved in Machina’s matter that could not be resolved through originating summons.

However, Justices Adamu Jauro and Emmanuel Akomaye Agim, disagreed with the majority judgment and held that both the Federal High Court and the Court of Appeal were correct in their findings in declaring Machina as APC’s Senatorial candidate for the Yobe North.

According to them, Lawan never participated in the APC primary held on May 28, as he withdrew voluntarily to participate in the presidential primary held on June 8.

The minority decision held that the conduct of another primary on June 9, where Lawan emerged was in breach of Section 84 (5) of the Electoral Act and Section 285 of the 1999 Constitution, as the APC never cancelled the one held on May 28 before organising another.

Besides, they held that Lawan had in an undisputed letter to APC, voluntarily withdrew his participation in the May 28 primary election for the presidential primary.

They contended that INEC was specific that it witnessed the May 28 primary that produced Machina but did not witness that of June 9, because there was no notification from APC to that effect. They, therefore, dismissed the appeal by APC for being incompetent and unmeritorious.

Recall that Lawan lost the APC presidential ticket to former governor of Lagos State, Asiwaju Bola Tinubu. However, Machina was asked to step down for Lawan, but he insisted that he would not withdraw for the Senate President.
In the face of the controversy, APC submitted the Senate President’s name to INEC as its Senatorial candidate for Yobe North. Not satisfied with the decision of his party, Machina headed to court to seek redress.

The Senate President has, however, lauded the judiciary for the judgment. In his reaction, Lawan said: “The judgment is a victory for APC in Yobe and across the country. What happened was democracy at work. The courts gave their various judgments and of course the Supreme Court gave the final judgment.

“I want to thank the Supreme Court and of course the judiciary for making this kind of judgment to strengthen our democracy, because it is not only for politicians to work and strengthen democracy, it is for all the institutions to play their roles.”

He also thanked his party for taking the matter to the Supreme Court. “Actually, as an individual, I didn’t go to the Supreme Court to seek for a redress, but my party did for my people of Yobe North and Yobe State generally. So today, it is a victory for all of us involved. I am the symbol but the victory is for our party and for democracy.”

MEANWHILE, the Yobe chapter of APC has set up a reconciliation committee to reach out to Machina and his supporters.

Yobe APC chairman, Mohammed Gadaka, told newsmen that reconciliation is the immediate measure that the party would adopt at this moment instead of going about celebrating victory.

Gadaka noted the decision of the Supreme Court is victory for the party and not against any individual, stressing that the party will work very hard to deliver victory at the polls on February 25.

He said the deputy chairman of the party, Alhaji Mohammed Ala-Mai, will chair the reconciliation committee, while the Political Adviser to Governor Mai Mala Buni, Alhaji Aji Bularafa, will serve as secretary of the committee. APC Yobe Secretary, Abubakar Bakabe, will also serve as a member in the committee.

Efforts to speak with Machina failed. He did not pick up calls or respond to text messages. Also, his spokesperson, Hussaini Mohammed Isa, did not pick up calls put across to him.
REACTING to the judgment, former INEC state commissioner, Mike Igini, said: “I’m tired of warning repeatedly of the danger of the judiciary not showing courage to curb arbitrariness of party leaders on matters of party primaries. I’m sick and tired. I have nothing more to say. Is our judiciary still the last hope of the common party members denied victory by party leaders?”

Lagos-based lawyer, Stephen Azubuike, said: “Again, the Supreme Court has brought the weight of the judiciary to bear in the democratic affairs of the nation. It’s left for us to see how far the decision represents the core tenets of democracy. This will require a critical review of the judgment. Unfortunately, the outcome of that review—if it goes against the decision—may not have any immediate political impact because of the status of finality of the decisions of the apex court.”

In his comment, lawyer, arbitrator and civil rights activist, Kayode Ajulo, said APC should be blamed and not the Supreme Court because the apex court simply based its judgment on what was presented before it.

“The Supreme Court is not biased. They have only delivered judgment based on the case presented before them. And it is a sound judgment. The concept of justice is not about a crying baby who runs to his sweet mother. Unlike the empathetic mother, the Supreme Court has the obligation to decide any matter based on its peculiarities.

“To say in public, like some have been doing, that the judgment is ridiculous is contemptuous. A better appreciation of our justice system will reveal that what the court considers is cold facts and not emotions.

“If anyone should be blamed for the controversy this decision has generated, it is the political party, APC. The whole world is aware that Lawan participated in the APC presidential primary. And pursuant to Section 115(d) of the Electoral Act, a candidate cannot be nominated in two elections. So, it was the party that decided to forward Lawan’s name to INEC, that ironically Lawan as the Senate President and other lawmakers created.

“Machina, feeling cheated, was within his right to recover his mandate. However, the facts of the case remains that the grouse of Machina deals with fraud and should have been instituted by way of Writ of Summons and not Originating Summons like Machina did.
“Although the Federal High Court practice direction says that pre-election matters be instituted by way of Originating Summons, the Supreme Court has held in a plethora of authorities that the rules of court supersedes a practice direction. And by the rules of court, an allegation of fraud should be brought by way of Writ of Summons. This has been the consistent holding of the Supreme Court in a plethora of matters and it won’t stop now.”

In another reaction, a writer and columnist, Prof. Adebayo Williams, said he would want to hear the reason advanced by the Supreme Court for delivering what he described as “a terrible and absurd decision.”

According to him, “before I make any comment, I would like to know why the Supreme Court gave that kind of absurd judgment? It is so absurd that it is likely going to affect the reputation of the apex court. I want to know the reason, particularly at this very tense political period in the history of the country. The court knows that election is at the corner and tempers are already tense.”

An Abuja-based lawyer, Ekengba Oladimeji Felix, said the judgment seems to take everyone by surprise, but since it is a pronouncement of the apex court, it remains the law until it is set aside by the same Supreme Court. But looking at the moral perspective of the judgment, it will encourage politicians to gamble with double nominations in the future.

Another lawyer, Danba Pius, said the Supreme Court decision invoked the 13th century English, Common Law, which says no matter how good your case is, it can be thrown out on technical grounds.

“The Common Law was so rigid that judges refused to allow a man to stay in the house he built and planted trees in the garden. See Earl of Oxford’s case (1615) 1 Ch. R. 1. It was as a result of this harsh injustice occasioned by rigid rules of Common Law that the Law of Equity was developed to bring succour.

“By equity, it does not matter that rigid rules of Common Law was not followed, once conscience, good faith or law of God dictates in favour of a party then he should be served justice. Thus, Lord Ellesmere was reported to have decided that ‘by law of God, he that built a house must live in it’. This is to reduce the harsh application of rigid rules of Common Law. It was also to cure the conflict between rigid Common Law and Equity that the Judicature Act of 1873 was enacted to the effect that where there is conflict between rigid Common Law and Equity, then Equity should prevail.
“Similarly, Section 12 of Federal High Court Act has codified the position from English Law that where there is conflict between rigid Common Law and Equity, the rules of Equity should prevail. In logic, it is the battle of form and content.

“Be that as it may, the Supreme Court appears to now hold a firm position insisting on rigid rules on commencement of action. Their lordships appear to be unwavering on rigid rules on commencement of action that it must be followed. They are not interested in the merit of the case as long as rigid rules of commencement of action is not followed. This account for the decisions in APC v. Ebeleke, Edevie v. PDP, Nyameh v. INEC and now Lawan v. Machina. These cases were determined on technical points and not the real dispute between the parties.

“In my view, the mode or way or manner of commencing a court action ought not to defeat a case full of merit. In other words, if it is true that Mr. A won the election, does it matter that he file his case by petition or writ or summons? How does use of forms alter the facts of the case?

“To focus on forms of commencement of action instead of facts of the case is in my humble view a journey back to the 13th century English system where rigid Common Law holds sway while Equity, conscience, good faith and substantial justice is sacrificed.”

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