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I read an insightful, thought provoking and blunt [but not entirely controversy free] article titled, ‘If You Love Credible Elections, Then You Must Thank The Rivers State Governorship Tribunal’ written by my friend and former boss, Chinedu Ekeke, a digital Public Affairs Analyst and a trained Accountant. The article, which was written against the backdrop of what the writer referred to as, “very laughable pronouncements” emanating from the various Governorship Election Petition Tribunals, in turn inspired this riposte. As brilliant and well researched as Chinedu’s article was [and I admit that reading it should make any lawyer yellow with pride and the same time green with envy], it was nevertheless not without blemish, hence this follow up.
Unlike typical rejoinders, the central point of this work is not to disagree with the nucleus of the above referenced article, to the effect that the Rivers State Governorship Election Petition Tribunal rose to the defence of democracy in Nigeria by giving judicial imprimatur to the use of card readers at the last general elections, thus taking a clear departure from the decisions of other States’ Tribunals e.g. Akwa Ibom State. This work however states that the other Tribunals e.g. the Court of Appeal in the Lagos State Governorship election petition case of All Progressives Congress vs. Kolawole Olujimi Agbaje may not necessarily have been wrong when they held that the issue of non-use of card readers was not a valid ground for nullifying an election, a position which I understand has apparently been recently justified by the Supreme Court in Ihedioha vs. Rochas Okorocha.
In one of my previous interventions on whether wearing army uniforms by civilians is a crime or a mere moral wrong, I stated that there are certain fundamental principles that run through the jurisprudence of most constitutional democracies including Nigeria, for which there are hardly any departures. These principles, the consideration of which were understandably absent in the article, have been factored into this piece, consequent upon which this writer has arrived at the same conclusion as Chinedu’s central argument on the legality of the use of card readers but with significantly different reasons.
One of such principles is the principle of Supremacy of the Constitution and another, the doctrine of the Rule of Law. What these entail inter alia is that every person is equal before the law and everything must be done according to the law. Thus the Constitution/Laws serve as the scale to measure the validity of any action or decision such that where any action or decision is inconsistent with the Constitution or any other law, the courts will not hesitate to declare void such action or decision.
Another important foundation upon which the Nigerian constitutional system is built is that of Separation of Powers. By this principle, the powers of state are horizontally delineated among the three arms of Government, to wit: the legislature, the executive and the judiciary. The legislature makes the law, the executive implements and the judiciary interprets in the event of a dispute. Again, no arm of government is permitted to encroach upon the powers allotted to the other. It is on the strength of this that the Court of Appeal per Obande Ogbuinya JCA held in APC vs. Agbaje that:
It is trite that the sacred duty of a court is jus dicere and not jus dare: to declare the law and not to make one. See Ugwu vs. Ararume (2007) 12 NWLR (Pt. 1048) 365.
The last relevant principle worthy of consideration is the doctrine of Stare Decisis, in full stare decisis et non quieta movere which translates, “to stand by things decided, and not to disturb settled points.” The essence of this doctrine is that courts at a lower rung of the hierarchical ladder are bound by previous decisions of courts above them and are not in a position to depart from or ignore such decisions. Thus a High Court faced with a Court of Appeal decision on a point (no matter how erroneous), is “condemned to follow” the Court of Appeal decision, no matter how brilliant the submissions against such a decision.
Once again, the above principles, absent in Chinedu’s article have occasioned this writer’s departure from some of the reasoning in his article. For example, Chinedu writes that, “the kernel of the historic 2015 elections” were the card readers and the guidelines issued by the Independent National Electoral Commission (“INEC”) on their use. As attractive as this view sounds, from a strict legal standpoint, the only point of view the courts are duty bound to uphold is that the kernel of the elections were and will remain, the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2010 as variously amended.
Furthermore, Chinedu took umbrage with the holding of the Ebonyi State Governorship Election Petition Tribunal that a breach of the electoral guidelines is not a ground to nullify an election and of course the decision by the Akwa Ibom State Tribunal that the Manual for Election Officials 2015 issued by INEC as well as the INEC Press Release which made the use of card readers compulsory was null and void for contravening Section 49 of the Electoral Act 2010 as amended. I will address these two grouses in reserve order.
For the avoidance of doubt, the Akwa Ibom Tribunal indeed at page 130 of the judgment held that the INEC Press Release was null and void and of no effect whatsoever. I have tried painstakingly albeit unsuccessfully to wrap my head around the judgment but permit me to simply endorse Chinedu’s submission on the legality of the use of card readers at the last elections and adopt same as mine. My views on the merits of the judgment shall be the basis for another intervention.
For the Ebonyi Tribunal (which judgment I haven’t read) let us assume for the sake of argument that the Tribunal truly held that a breach of the electoral guidelines is not a ground to nullify an election. This finding is however without legal fault as I will demonstrate below.
The justification for the above view is found within the judgment of the Court of Appeal in APC vs. Agbaje. I must pause to state that a number of persons have sought to rely on the judgment of the Court of Appeal to justify the view that the use of card readers contravened the Electoral Act, this with respect, either stems from an inability to synthesise the decision of the Court of Appeal or an attempt at mischief or a combination of the two.
It is a trite principle in law, known by all and sundry (except those hell bent on mischief) that the decision of a court, or an opinion expressed by a Judge, must be taken within the context of the facts and peculiar circumstances of the case on which the pronouncement was made. As far back as 1989, the Supreme Court in the words of Oputa JSC of blessed memory observed in the case of Adegoke Motors vs. Adesanya (1989) 3 NWLR (Pt 109) 250 at pages 265-266 paras H-A thus:
It also appeared in rather bold relief that there is now a tendency among our lawyers, and sometimes among some of our Judges, to consider pronouncements made by the Justices of the Supreme Court in unnecessary isolation from the facts and surrounding circumstances of those particular cases in which those pronouncements were made. I think it ought to be obvious, that it is the facts and circumstances of any given case that frame the issues for decision in that particular case. Pronouncements of our Justices whether they are rationes decidendi or obiter dicta must therefore be inextricably related to the facts of the given case. Citing those pronouncements without relating them to facts that induced them will be citing them out of their proper context, for without known facts, it is impossible to know the law on those facts.
In APC vs. Agbaje the Court of Appeal stated the obvious, that election petitions are sui generis. The Court held:
Election petition is sui generis, see Oshiomhole v. Airhiavbere (supra); Ikechukwu v. Nwoye (supra); Oke v. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225; Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124. It is a specie of proceeding which does not condone ordinarily pardonable blunders arising from even fallibility of human errors.
The Electoral Act 2010 provides four grounds for challenging an election or the return of a particular candidate as the winner of an election. Section 138 (1) of the Act provides:
An election may be questioned on any of the following grounds, that is to say:
(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) That the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the petitioner or its candidate was validly nominated but was lawfully excluded from the election.
The provision donates to a party a right to challenge an election on any of the listed grounds, only. And in accordance with the special nature of election petitions, the courts have over the years held that the law mandates parties to election petitions to adhere strictly to the above statutory forms in drafting their grounds of petitions. See for example Ojukwu vs. Yar’adua (2009) 12 NWLR (Pt. 1154) 50; Oshiomhole vs. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376.
An example that will best illustrate the point being made is in matrimonial proceedings where the Matrimonial Causes Act provides only one ground for the dissolution of marriage to wit: that the marriage has broken down irretrievably. Thus even if a husband unsuccessfully attempts to kill his wife but fails, she cannot successfully seek to dissolve the marriage if she brings the petition on the ground that the husband tried to kill her. The only ground upon which the court will dissolve the marriage is if she claims that the marriage has broken down irretrievably, and then demonstrates that, with the action of the husband as the basis for the court to come to that conclusion. Why? Because the law says so.
Now back to election petitions, although the Court in Ojukwu vs. Yar’adua held that a petitioner is permitted to “use his own language to convey the exact meaning and purport of the subsection”, thus giving a petitioner the license to paraphrase the grounds upon which an election can be challenged, however the latitude is not without limit as the ground must still fall within the intendment of that section.
In the Lagos Governorship election case, the Respondents challenged paragraph 13(b) of the Petition as not qualifying as a ground to challenge the election of 11th April, 2015. The said paragraph 13(b) reads:
That there are so many irregularities in respect of the use of the card readers during the election, as many polling units did not have the card readers or make use of the said card readers even where available.
What the Court of Appeal merely held in APC vs. Agbaje, using Section 138(1) of the Electoral Act as the compass for determining the validity of the above paragraph, was that the said paragraph did not, in the least, fit into any of the grounds catalogued in the inviolate provision of Section 138(1) of the Electoral Act. On this score alone, one finds it extremely difficult to fault the finding of the Court of Appeal. In similar vein, one may also conclude that the Ebonyi Tribunal was right to hold that a breach of the electoral guidelines is not a ground to nullify an election except if the petition was couched in a manner that the breach of the electoral guidelines consequentially amounted to corrupt practices or noncompliance with the provisions of the Electoral Act.
Admittedly the Court of Appeal per Obande Ogbuinya JCA did not stop at that and proceeded to hold as follows on the card reader:
The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the Manual for Election Officials, 2015: Chapter 2, pages 35-42. Put the other way round, the extant Electoral Act, 2010, as amended, which predates the concept, is not its parent or progenitor. Since it is not the progeny of the Electoral Act, a ground in a petition fronting it as a ground to challenge any election does not have its blessing, nay Section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election it does not qualify as one.
It is the above dictum that has been bandied about by lawyers and litigants alike as the authority that the Court of Appeal overruled the use of card readers at the last elections. Nothing can be further from the truth. It is instructive to note that the Court of Appeal in fact held that the blame should be laid not at the feet of the Tribunal but at the lawyers who drafted the petition. The Court per Obande Ogbuinya JCA also held:
Before the final verdict, let me observe, obiter, that this cross-appeal brings to the fore the need for parties, qua counsel, to exhibit artistry, dexterity and meticulosity in drafting election petitions. The petition, which metamorphosed into the appeal, was poorly drafted disclosing lots of avoidable loopholes. That is not desirable in a keenly-contested poll like the one being challenged in the petition. The grounds, save that on qualification, were inapposite and wanting in the necessary reliefs. The petition, from its birth, was destined to fail in limine! It is very unfortunate!!
I cannot agree any less. In fact it can be stressed that intrinsic in the above admonition is the unstated view that if the petition had been properly drafted, such that the grouse with the non-use of card readers were relied on as facts to buttress either grounds (b) or (c) in Section 138(1) of the Electoral Act, then the court may have come to a different conclusion. Consequently, those celebrating the premature death of the card readers may be celebrating a tad too soon.
On the card readers the Court of Appeal specifically held:
The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election held in March and April, 2015 in Nigeria. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election. Specifically, it is aimed to concretize our fragile process of accreditation as the keystone of any suffrage. The concept, owing to its recent invention by INEC, a non-legislative body, traces its paternity to the Manual for Election Officials, 2015.
I should not end without pointing out the role of the legislature in all these. A trip down recent memory lane will reveal that in previous elections, the National Assembly either of its own accord, or at the instance of the Executive arm, amended the Electoral Act prior to elections to give legal backing to whatever innovations INEC introduced. Thus in 2010, the extant Electoral Act was passed in preparation for the 2011 general elections and prior to that, the Electoral Act 2006 was in place for the 2007 Elections and so on. One would therefore have expected a new Electoral Act for the 2015 elections or at least another amendment to give express legislative imprimatur to the card readers, permanent voters’ card and the other innovations introduced subsequent to the 2010 Electoral Act so as not to leave room for ambiguity and conjecture.
In the meantime, for the vast majority of Nigerians especially lawyers, there is need to make haste slowly before accusing the Tribunals of “a travesty of justice” or “legal summersault.” The unprecedented attack on the judiciary is an ill wind that blows no one any good. A judiciary absent in dignity is a recipe for total breakdown of law and order.
Orji Agwu Uka is a Lagos based Legal Practitioner and occasionally engages on Twitter as @OrjiUka