Appeal court’s decision in Plateau and the supreme court’s dissent

Before the Supreme Court of Nigeria, last Friday, delivered final judgments on eight (8) gubernatorial appeals arising from the last general election, one of those appeals had elicited a particular public interest having regard to the far-reaching implications it might have elsewhere, and it was not Kano’s.

On the 7^thof November 2023, a 3-man panel of the Court of Appeal presided over by Hon. Justice Oluwayemisi Williams-Dawodu (JCA) and Holden in Jos, had sacked not less than 23 Plateau State lawmakers elected on the platform of the People’s Democratic Party (PDP) in both the State and Federal Legislative Houses. The State Governor -Mr. Caleb Muftwang was also not spared as his declaration and return by INEC was also nullified by the same Court on 19^th November 2023. Some of the affected lawmakers include Timothy Datong (Riyom); Rimyat Nanbol (Langtang); Moses Sule (Mikang); Salome Waklek (Pankshin); Bala Fwangje (Mangu South); Maren Ishaku (Bokkos); Dagogot (Quaanpan North); Nannim Langyi (Langtang North); Nimchak Rims (Langtang South); Danjuma Azi (Jos North-West); Gwottson Fom (Jos South); Abubakar Sani Idris (Mangu North); Happiness Akawu (Pengana); Ibrahim Abalak (Rukuba/Irigwe); Philip Jwe (Barkin Ladi); and Cornelius Deyok (Qua’apan South).

A common thread ran through the reasons for nullifying their victories; namely, irregularities in the manner in which they were nominated and sponsored by their Political Party. In upholding the appeals of the Petitioners-Appellants, the Court of Appeal had held that not having duly emerged as candidates of their party-PDP, it follows that they were not candidates on the ballot whereupon the majority votes polled by them were declared wasted. In the circumstances, the candidates of the All-Progressives Congress (APC) were returned to fill these seats. It was a bizarre decision, to say the least.

In reaching the above conclusion, their Lordships had not only, with a stroke of the pen, nullified the collective will of the people of Plateau State against the basic tenets of democratic rule, but they had also, willy nilly uprooted settled judicial precedent on the question of who can challenge alleged irregularity in the manner of emergence of a candidate at an election tribunal, and perhaps more fundamentally, whether such a complaint can be cognized by an Election Petition Tribunal having regard to its very narrow jurisdiction under Section 285 (1) &(2) of the 1999 Constitution as amended.

But more concerningly, in reaching the above conclusions, the Court of Appeal had unwittingly set up the Judiciary for potential ridicule and public opprobrium.

Under Nigeria’s extant electoral jurisprudence, appeals out of parliamentary elections terminate at the Court of Appeal, rightly or wrongly. Whilst those arising from gubernatorial and presidential elections, go all the way to the Supreme Court. It thus emerged that whilst Governor Caleb Muftwang had the opportunity to challenge this gross act of injustice further to the Supreme Court, the fates of his counterpart in the federal and state legislative houses who lost their seats for the same reason were sealed.

In the days after these controversial decisions, I had taken to my LinkedIn page to express my worry and concern at the state of affairs, in the event the Supreme Court upholds the appeal of Governor Muftwang. I was particularly concerned about what implication it would be for the sacked lawmakers and the perceptions of the judiciary in the public eye in the circumstances. I wrote:

“I think the much-criticized decision of the Court of Appeal with respect to the Plateau State gubernatorial seat potentially puts the Supreme Court in a rather difficult situation. 

Assuming their Lordships of the Apex Court are minded to, on larger policy grounds, allow the appeal of the PDP on the basis that the grounds upon which the Court of Appeal set aside the decision of the Tribunal bordered on pre-election issues, it will however lead to the unintended consequence of leaving the 5 members of the National Assembly elected under the platform of the PDP, and who were sacked for similar reasons, without any remedy.

Whereas under the 1999 Constitution, the Court of Appeal sits as a final Court over appeals arising from National and State House of Assembly elections, those from Governorship and Presidential elections go all the way to the Supreme Court. 

This therefore, gives the embattled Governor – Caleb Muftwang, one more role of the dice as against his peers at the National Assembly whose fates have been sealed for life.

But then again, if the Apex Court in a bid to avoid this controversial outcome, dismisses PDP’s appeal and upholds the Court of Appeal decision, it would have unwittingly dethroned what has been the long-standing jurisprudence, to the effect that matters appertaining to the modality of emergence of a candidate are pre-election issues which cannot be ventilated at an election tribunal.

It is not my knowledge that our Apex Court have found itself in this jurisprudential cul de sac in recent history; a situation that brings to the fore, once again the problem with our adjudicatory process. 

The outlook does not look good at all, and it’ll be interesting to see how the drama unfolds”.

In a seeming confirmation of my fears; last Friday, a five-man panel of the Supreme Court, led by Hon. Justice. Emmanuel Akomaye Agim JSC, unanimously set aside the decision of the Court of Appeal that sacked Governor Muftwang describing it as perverse, “because the issue of primary election that produced Muftwang was outside the jurisdiction of the lower Court” and not one of the valid grounds to void an election.

But it was the concurring Opinion of Hon. Justice Inyang Okoro JSC that captured the larger implications of the decision the Court had just reached. “My only worry is that a lot of people have suffered because of this judgment”, said the eminent jurist, in a veiled reference to all the lawmakers who were victims of the unfortunate judicial malfeasance. In her concurring decision. Hon. Justice Helen Moronkeji Ogunwumiju JSC was unsparing as His Lordship berated the Court of Appeal for going “into the issue of nomination and sponsorship despite several decisions of the apex court to the effect that another political party cannot challenge the primary election of another”.

In the final analysis, the Supreme Court affirmed the decision of the Trial Tribunal which had given Governor Muftwang’s election a clean bill of health.

The sheer implication of the Supreme Court’s ruling in the matter of Plateau is perhaps a very graphic case of judicial corruption; one which is unfortunately without a remedy having regard to the sui generis nature of our electoral jurisprudence. A further scan of the decisions out of the Court of Appeal within the last election cycle, reveals with concern, similar occurrences elsewhere. One case particularly stands out. On the 4th of November 2023, a 3-man panel of the Court of Appeal led by Hon. Justice Georgewill Biobelle JCA, sitting in Lagos had sacked the Senator representing Abia Central Senatorial District in the National Assembly, and the then Minority Whip- Sen. Darlington Nwokocha (LP) who had scored 92,116votes, replacing him with Mr. Augustine Akobundu (PDP) who had come second, with 41, 477 votes.

The Court of Appeal’s decision was anchored on the same reason as those for which the Plateau lawmakers were sacked; namely, issues around membership and/or sponsorship which are clearly pre-election matters outside the remit of an election tribunal.

Senator Nwokocha’s attempt to challenge his sacking afterward at the Supreme Court, last year proved abortive. The Court dismissed the motion and slammed a heavy cost of 2 million Naira against the Senator describing the process filed by his Counsel as an abuse of its process – a clear indication that any attempt by the affected lawmakers to confront the Supreme Court to reverse the decision of the Court of Appeal on the matter, would meet a similar brick wall.

Now, the question of what can be ventilated before an election petition tribunal and any appeal arising therefrom is very settled. Matters bordering on internal affairs of a political party, membership, sponsorship, nomination et al, have been held ad nauseam to be ultra vires the jurisdiction of the Court. Assuming Counsel can be forgiven for presenting such questions before the Court, it is our submission that such immunity cannot inhere to the Judex, much less- a 3-man panel of appellate court Jurists who ought to know and should know.

It is within this broader context, in my view, that legitimate inferences of foul play and judicial corruption can be founded, as have been argued by Scholars such as Professor Chidi Odinkalu who contends that the situation in Plateau “was not a mistake”, but a “judicial malpractice on a very corrupt scale”.

To this end, one would expect that this issue receives the serious attention it deserves having regard to the sheer scale of its implications within the life of this democratic dispensation. Thus, the job of the President of the Court of Appeal, Hon. Justice Monica Dongban- Mensem JCA – under whose nose this shambolic show set sail, and the National Judicial Council (NJC) should be well cut out: at the very minimum, a special panel should be set up to investigate the circumstances under which the bizarre decisions were reached subject to the rules of immunity governing the exercise of judicial discretion. This is very important for deterrent purposes in a sociopolitical environment where impunity has become something of an article of faith.

As we expect the rightly embittered lawmakers and their Constituents to heal from this ugly episode, it is only fitting that those whose professional misjudgment made it possible are brought to account.

A welcome silver lining; the Supreme Court’s protest judgement couldn’t have been better served. It is hoped that it would help to invigorate confidence in the Judiciary amongst a very disaffected population for whom its essence remains questioned, as well as put to bed once and for all, the needless controversy on the jurisdictional ambit of the Election Petition Tribunal.

A lawyer and a public policy analyst, Nkannebe can be reached at [email protected]