Basically, “Lex non deficere potest in justitia exhibenda”, is a Latin legal maxim which implies that the law cannot fail in dispensing justice.
It is expected that the primary aim of any adjudicating process ought to be geared towards occasioning a harmonious marriage between judgment and justice. Consequently to achieve the end of justice, the law not only requires that all parties to any given dispute be heard (audi alteram partem), but insists on strict adherence to the principle of “Fiat justitia ruat caelum”, another Latin maxim that means “Let justice be done though the heavens fall.”
While saluting the industry deployed by their Lordships in arriving at the judgement of the Apex Court on 21st February,2014 in the Kogi gubernatorial tussle, I cannot help admitting that I do not share the views of the honorable Supreme Court Justices as a careful analysis of the judgment reveals that the Supreme Court committed several errors in both facts and law and also overlooked the vast amount of evidence presented before it , ‘manufactured’ new evidence,while arriving at the decision.
My Lords held in paragraph two (2) of the lead judgement written by Bode Rhodes Vivour,JSC that:
“The facts are these: On the 9th day of January,2011 the PDP conducted its primaries to decide who it’s candidate would be for gubernatorial elections in Kogi State slated for April 2011. The appellant,and the 2nd respondent,both members of the PDP participated in the primaries”
With respect I submit that, it amounts to delivering a judgement without justice by relying on a ‘fact’ that is non-existent and farcical Let me emphasize here that, none of the parties to the suit made such averment. So, how did their Lordships arrive at that conclusion?Why would my Lords render an opinion on facts that were not before them nor averred by any of the parties? What is more serious is the confidence and certainty with which the Justices relied on the said non-existing ‘fact’ throughout its Judgment to dismiss the case. It was simply a clear reminder of the many dramatic twists and intrigues the case suffered at the level of the Appeal Court; as the date for the judgement on the case at the appellate court suffered up to four adjournments. It was initially fixed for 20th Dec.2012 , rescheduled to 16th Jan., 2013 and was again postponed to Tuesday 28th January,2013 before the court finally delivered the judgement on 31st January 2013; making it the fourth time the judgement would be postponed and the first time such a thing will happen in the history of the Court of Appeal.
The Supreme Court appeared to also be in serious error when it held that,the appellant was not a party in Marwa v Nyako and as such could not derive any benefit from the judgement.
With much respect to their Lordships decision, the Supreme Court, by the decision in Marwa v Nyako invalidated the decisions of the two lower courts, set aside and nullified all rights or interest that may have accrued from the decisions and of course restored whatever and whichever interest that was suspended or put in abeyance during the subsistence of the of the decisions of the lower courts. Against the foregoing background, we submit that it was the decisions of the Federal High Court and Court of Appeal (that were set aside by the Supreme Court in Marwa v Nyako) that stalled and hindered Appellant’s already restored rights to contest election as governor of Kogi State since his name had already been forwarded to INEC (the 1st Respondent) as its candidate for the said election. Legally and logically, if it was the decision of the Court of Appeal and Federal High Court that hindered the Appellant from contesting; the setting aside of those decisions by the Supreme Court revived his already vested right. Put differently, since all parties are ad idem that is was the decisions of the Federal High Court and the Court of Appeal (giving rise to the appeal and decision in Marwa v Nyako) that frustrated Appellant’s already vested right to context election as governor, it will amount with all respect to standing logic on its head to argue that a setting aside of those decisions would not confer any benefit on the Appellant irrespective of whether he was a party to the proceedings or not. With much respect, I assert that, the setting aside of those decisions mandatorily conferred appellant with benefits qua locus, because the law is clear that the effect of an appellate court setting aside the decision of a lower court is that in the eyes of the law the decisions of the lower court did not exist. See, Waziri & Anor v Ali & Anor (2009) 4NLWR (Pt. 1130)178 at 221 and 227 where the court held that a judgment delivered in respect of an appeal from the decision of a trial court, being one in continuation of the case before the trial court is deemed to have started from the date of the decision of trial court. The court further held that no legal consequence can be derived from the judgment of the lower court which has been set aside or declared a nullity. Which was why, in compliance with the January 27, 2012 decision in Marwa Vs Nyako, INEC held governorship elections in Adamawa State on February 4, 2012, in Bayelsa State on February 11, 2012, in Sokoto State on February 18, 2012 and in Cross River on February 25, 2012. But INEC refused to hold fresh governorship election in Kogi State after the judgement. Therefore, it is crystal clear that the nexus between the Supreme Court judgment in Marwa v Nyako and the Appellant is evidently clear,unassailable and cannot be impeached by any impartial and unbiased panel.
With much respect to their Lordships decision in this matter, Ia m of the view that their Lordships failed to distinguish between “facts” and own interpretations and thereof making it look as if it were for the purpose of arriving at a predetermined conclusion when they held that, the appellant(Jibrin Isah) participated alongside 2nd respondent( Idris Wada) in the September 2011,that was conducted during the pendency of INEC’s appeal at the Supreme Court in Marwa vs Nyako.
The fact is that,the falsity of the assertion of their Lordships is confirmed in a document in respect of the said 2nd Primary Election prepared by the 1st respondent(INEC) titled: “REPORT OF THE SPECIAL STATE CONGRESS OF THE PEOPLES DEMOCRATIC PARTY (PDP) HELD ON 22ND SEPTEMBER, 2011 AT THE MINI STADIUM, LOKOJA, KOGI STATE” ,which was tendered before their Lordships (certified true copies on pages 1906-1909 of the records) where it was clearly stated as follows:
“It is noteworthy to observe that only 3 out of the 7 cleared aspirants addressed the delegates at the venue. They were Addulrazaq Isa Kutepa, Capt. Wada Idris and Mr. Philip Salawu (Deputy Governor of Kogi State), and the remaining four (4) were absent.” Besides,the records before their Lordships puts it beyond doubt that the appellant through his counsel intimated the 1st respondent (INEC) vide a letter of 17th November, 2011 of the illegality of the second primary election and the subsequent general election. In view of the germane facts drawn from the records, it is without doubts that the Appellant abstained from the second illegal primaries which was held on the basis of the Federal High Court and Court of Appeal decisions and which was set aside by the Supreme Court in Marwa vs. Nyako (supra).
In another breadth,my Lords at the supreme court willfully ignored the evidence in a manner inconsistent with the records before the court and proceeded to make another grossly incorrect finding when it held in paragraph 8 of the lead judgement that:
“This suit was filed by appellant on 9/2/12. That is,it took the appellant over two months to complain about an election he did not take part in…”
With much respect to their Lordships,Suit no. FHC/ABJ/CS/807/2011 – UMAR LAWAL & ALHAJI JIBRIN ISAH V. INEC, PDP & CAPTAIN IDRIS WADA before the Honourable Justice B.B Aliyu of the Federal High Court, Abuja was filed before the illegal primary election in September,2011. So,how did my Lords arrive at the mathematics of appellant filing the suit 2 months after the election?
Permit me to also pointedly state that, their Lordships decision to uphold the lower courts decision on the issue of jurisdiction conflicts with the decision of the apex court in ORHENA ADUGU GBILEVE & ANOR v. MRS. NGUNAN ADDINGI & ANOR (SC.193/2012) ,where, his brothers Justices, declared in that case that, Addigi as one of the aspirants in the primary election, had acquired the right to approach the Federal high Court, Makurdi as she did in her originating summons to seek redress in that court which was vested with jurisdiction by virtue of the provisions of section 87 (4)(c) (i) (ii) and (9) of the Electoral Act 2010, the federal high court, Makurdi had the jurisdiction to hear and determine the case as it was determined by it in favour of Addigi on the 31st of January,2014. Are they now different rules for different classes of people?
Finally, let us assume without conceding that the Supreme court was tangentially right in restricting itself to the purported election that produced Idris Wada on 3rd December 2011,the Supreme Court is duty bound by the Nigerian Constitution and the statutes to let Nigerians and the international community know what section of the constitution or under which provision of the electoral act, the said election conducted. INEC would not have deliberately acted to overreach an appeal it filed by taking a pre-judicial step during the pendency of that appeal. Put more pointedly, it was because INEC was convinced that the provisions of the Sections 180(2) and (2a) of the Constitution were clear and unambiguous that it filed an appeal in SC/357/2011. The Supreme Court agreed with INEC as per INEC’s appreciation of the clear and unambiguous provisions of these Sections. INEC is therefore estopped from avoiding the clear and unambiguous provisions of Section 287 of the 1999 Constitution with regard to the effect of that judgment of the Supreme Court and also forbidden from taking pre-judicial steps during the subsistence of the said appeal.
The questions I am constrained to ask their Lordships are: If, by constitutional imperative and a judicial pronouncement of the Apex court,the tenure of the last holder of the office of Governor of Kogi State ended on May 28,2011,was the election conducted after May 28,2011 during the pendency of INEC’s own appeal before the Supreme Court,constitutional? If Wada was actually a Governor-in-waiting after the judgement of the Supreme Court on 27 January,2012,why did the PDP approach the same Court vide an application on 1st. February,2012 praying the Supreme Court to exempt Kogi State from the effect of the judgement of the Supreme Court on 27 January 2012? Recall that the Supreme Court in a ruling on 16th February 2012, dismissed the said application.
On another leg, when the facts in this case are assessed and properly distilled, it will be safe to also conclude that, the primary elections of the People Democratic Party (PDP) Which held in Kogi State on the 22nd day of September, 2011 as well as gubernatorial elections that was held in Kogi State on the 3rd day of December, 2011 were held in utter disregard and contempt of the orders of the Federal High Court, Abuja. The orders referred to the above are the orders of the Federal High Court, Abuja Judicial Division contained in the judgment delivered on the 23rd day of February, 2011 by Hon. Justice A. Bello in Suite No. FHC/ABJ/CS/651/10 which was also up-held by the Court of Appeal, Abuja Division.
The judgment of the Federal High Court, Abuja and that of the Court of Appeal were all subsisting and building when in a show of unbridled and arrogant impunity, the PDP and INEC decided to engage in frolics of their own when they organized the primary elections and the gubernational elections respectively that produced the Capt. Idris Ichalla Wada as the Governor of Kogi State.
For all purposes and unequivocally, the judgment of the lower courts subsisted until the 27th day of January, 2012 when the judgment of the Supreme Court was delivered. It is therefore an elementary law to say that all things done in disobedience to the clear orders contained in the judgment of the Federal High and Court of Appeal are to the extent of their inconsistency thereto improper, unlawful and illegal and the product of such illegality and illegitimacy must be dismantled.
From the foregoing,it is clear that the verdict of the apex court was based on non-existing facts and wrong legal foundations. So,its validity remains questionable. It is my considered opinion this action amounts to an established case of bias vide an abuse of judicial powers which the Chief Justice of Nigeria must investigate to bring sanity to the Judiciary. It is hoped that the Supreme Court will have another opportunity to reverse the highly erroneous judgment so as to restore the confidence of the common man in the judiciary
Ogbonna V Ogbonna, is of The lawyers for Justice and Equity,Lagos