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 Supreme Court 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 Becke 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 are the powers 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 doctrine of 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 www.snathap.com
