If the current relationship between the judiciary and the populace is largely frosty, as many Nigerians are inclined to hold, the reason may be due to the conflicting and often seemingly illogical decisions emanating from the courtrooms, particularly on electoral and political matters. Sadly, the inconsistencies demonstrated by the Nigerian courts in recent times have been so consistent that they significantly diminish public trust in the dignity and integrity of the judiciary as presently constituted.
A remarkable instance is the decision of the Supreme Court in All Progressives Congress (APC) V. Bashir Machina in which the court held that Senator Ahmad Lawan, currently the President of the Senate (Nigeria’s federal upper legislative chamber) was the authentic APC senatorial candidate for Yobe North Senatorial District.
It is on public record that Machina won the Yobe North Senatorial Primary Election conducted by the APC under the supervision of the Independent National Electoral Commission (INEC) on May 28, 2022. It is also a fact of common knowledge that Senator Lawan did not participate in the said Senatorial primary but took part in the Party’s Presidential Primary that was held on June 8, 2022. However, the APC submitted the name of Senator Lawan to INEC as its candidate for the Yobe North Senatorial seat.
Justifying its action, APC claimed that Mr. Danjuma Manga, the party’s official that presided over the initial primary election, which produced Machina as the winner, was not authorised to do so by the party’s National Working Committee. Consequently, the party conducted a fresh primary on June 9, 2022, which then produced Lawan as the winner. It should be noted that APC did not furnish the required notice of the June 9 primary to both INEC and Machina before conducting the alleged second primary.
Aggrieved by the wrongful exclusion of his name, Machina approached the Federal High Court (FHC) in Damaturu, Yobe State for justice. In line with the principle of ubi just ibis remedium (where there is a right there is a remedy), the court ordered APC and INEC to recognise Machina as the authentic senatorial candidate. This decision was affirmed by the Court of Appeal. However, dissatisfied with this verdict, APC further appealed to the Supreme Court.
The totality of the arguments canvassed by the parties can be narrowed to a lone issue; to wit: Whether, in consideration of the provision of Section 115(1) (d) of the Electoral Act 2022, Senator Lawan could have lawfully participated in the 2022 Presidential and Senatorial Primary Elections of the APC? The cited Section provides as follows: “A person who signs a nomination paper or result form as a candidate in more than one constituency at the same election, commits an offence and is liable on conviction to a maximum term of imprisonment for two years.”
In delivering its majority decision (by three justices against two who dissented), the Apex court rather than resolve the fundamental issue that goes to the root of the case, appeared more fixated on the letters of the originating process instead. In the supporting affidavit, Machina had alleged that the APC “fraudulently” substituted his name with the name of Senator Lawan. The Apex Court, in a majority judgment of three to two simply held that since Machina’s allegation borders on fraud against the APC and Lawan, he ought to have initiated the action via Writ of Summons instead of Originating Summons. On this singular ground, and without delving into the merits of the appeal, the court declared Senator Lawan as the lawful candidate of the APC for Yobe North Senatorial District.
Civil actions are usually commenced either by a Writ of Summons where facts are disputed; by Originating Summons where the dispute is non-contentious; or by an originating application depending on the nature of the dispute. Actions commenced by Writ of Summons give litigants the opportunity to lead evidence in proof of every material allegation of facts contained in their pleadings; and also the right to cross-examine the other party or parties. Whereas, Originating Summons, are usually based on affidavit and documentary evidence.
It should be noted that in the instant case, Machina followed the laid down procedure in the institution of the action. The Practice Direction of the FHC specifically prescribes Originating Summons as the form of commencing pre-election matters. This may be because pre-election cases are time-bound, and are more likely to be promptly dispensed with (up to the highest appellate level) if they are initiated via Originating Summons.
However, because Machina had included ‘fraud’ in his allegation, the Apex Bench reasoned that he ought to have sought judicial intervention through a Writ of Summons because of the criminal nature of the allegation. While this position resonates with the law, because 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.
However, it is also trite that the failure of a party to initiate proceedings by the appropriate mode is not fatal to his case. It is a mere procedural irregularity that can be cured by simply converting the suit to the proper mode. The age-long principle of law (which ironically has been followed by the Supreme Court) is that where an action is commenced by the wrong form, the proper thing for a court to do in such circumstances is to order the Plaintiff to bring the matter by the appropriate mode and not to dismiss the matter.
Besides, what was uppermost in the mind of the litigants and Nigerians in the Yobe North case is the interpretation of section 115(1)d, regarding the propriety of Lawan contesting primary elections for the presidency and as a Senator. Unfortunately, and to the disappointment of Nigerians, the Supreme Court threw away the opportunity to pronounce on that substance, using the technicality of procedural rules.
Several contentious pre-election petitions have been routed through Originating Summons in the past without any procedural hiccups. Therefore, the recent judicial summersault in the respective cases involving David Umahi, Godswill Akpabio, and Ahmad Lawan all of whom participated in both the 2022 Presidential and Senatorial Primaries of the APC and were subsequently endorsed by the Supreme Court as the authentic senatorial candidates, is incredible.
The procedural issues raised in the case of PDP V. Degi-Eremeinyo are identical to that of APC V. Machina but in the former case, the Supreme Court reaffirmed the position of Justice Inyang Ekwo of the Federal High Court, Abuja that allegations of fraud can be dealt with by Originating Summons.
To be continued tomorrow.
The Guardian
