Zamfara : The Judiciary As Alternative Electorate ― Professor Sagay (SAN)

In two recent cases, the Nigerian Judiciary, particularly the
Supreme Court as the Apex Court, has taken over the role of
electors and denied the real electorate either of their right to
vote, or set aside clear, unchallengeable voters’ decisions and
handed over victory to the clear looser.

In Rivers State, the APC electorate was deprived by the
Judiciary of their right to vote.  The result was that
the PDP was effectively returned unopposed.  The effect
of this is that the PDP not only has a “walk in” Governor, but all
the members of the Rivers State House of Assembly, all the members
of the National Assembly (Senate and House of Representative) are
100% PDP, in a State where the voting preference of the electorate
is about 50:50.

In Zamfara State, there was an election in which the APC had a
landslide victory over the PDP, in the Governorship, Senate, House
of Representatives and House of Assembly elections.  In a
decision handed down on Friday, 24th May, 2019, the Supreme Court
transferred all the victories of the APC to the
PDP.  Thus, the PDP Governorship candidate who lost
woefully to the APC candidate was in effect, declared Governor by
the Supreme Court.  In other words, the Supreme Court has
set aside the decision of the electorate and installed the losers
in both the Executive and Legislative Arms of Government in Zamfara
State.  The verdict of the electorate has thus been set
aside and replaced with that of the Supreme Court.

This is the latest bizarre twist in Nigerian Democratic
practice.

To further bring home the gravity of  the situation in
the Governorship election in Zamfara State, the APC candidate
scored well over 500,000 votes whilst the PDP candidate scored,
just over 100,000 votes.  The APC won all 3 Senate seats
in the State, 7 House of Representative seats and 24 State House of
Assembly seats.  By this judgment, the landslide APC
victories in the Governorship, Senate, House of Representative and
State House of Assembly are transferred to the PDP.

If the APC primaries were defective, should the electorate be
deprived of their democratic and Constitutional rights to
vote?  Is the electorate to be punished for the
transgressions of party officials?  Should the Judiciary
replace the electorate’s decision and install losers in
office?  Could the Judiciary not have drawn on the deep
recesses of its intellectual capacity, authority and its inexorable
commitment to justice, to prevent this undemocratic
calamity?  Can the APC officials not be punished, for
their lapses without denying the electorate their democratic
rights?  Should the Judiciary take over the electoral
rights of the electorate?  Is this not a clear case of
technical law completely overthrowing justice? Have the members of
the Supreme Court not achieved a level of creativity and authority
to provide a solution without burying democracy and taking over
from the registered voters as the judicial
electorate?  If this judgment had been an international
one, it could have been described as “shocking the conscience of
humanity”.  In this case, it shocks the conscience of
Nigerian humanity.

In dealing with any case before it, the primary concern of a
Judge should be the achievement of justice.  If a
mechanical application of the law to facts would result in
injustice, then a Court must avoid that course.

The correct approach to the adjudicating of matters before a
Court was laid down by the Supreme Court itself in 1987, in
Engineering Enterprise Contractor of Nigeria v. Attorney-General of
Kaduna State [1987] 1 NSCC 601 at 613 in which Eso, JSC
representing the views of the Court laid down this historic
principle.

“One stream that permeates all these decisions and I hold the
view that this is a good sign for the administration of justice in
this country, is the clear, unadulterated water filled with great
concern for the justice of the case.  The signs are now
clear that the time has arrived that the concern for justice must
be the overriding force and actions of the court.  I am
not saying that ex debito Justiciae by itself is a cause of
action.  It is to be the basis for the operation of the
court, whether in the interpretative jurisdiction or basic attitude
towards the examination of a case.”

The sum total of the recent decisions of this court is that the
court must move away from the era when adjudicatory power of the
court was hindered by a constraining adherence to
technicalities.  This often results in the loser in a
civil case taking home all the laurels while the supposed winner
goes home in a worse situation than when he approach the
court.”

In Aliu Bello v. Attorney-General of Oyo State [1986] 5 NWLR
(Pt. 45) 828, the Supreme Court Panel composed of Hon. Justices
Chukwudifu Oputa, JSC, Muhammed Bello, JSC, Karibi-Whyte, JSC,
Aniagolu, JSC, Coker, JSC, Alfa Belgore, JSC, and Saidi Kawu,JSC,
declared as follows:

“It was contended that invoking the general principle ubi ius
ibi remedium is a clear demonstration that appellants have left the
Court at large to devise a remedy.  I have already stated
that the writ of summons and the statement of claim sufficiently
discloses that the claim can be founded under the Torts
Law.  Even if this is not the case, I think the Court has
attained a stature in the pursuit of justice that a claimant who
has established a recognized injury cannot be turned back on the
ground that he has not stated the head of law under which he was
seeking a remedy”

The key word here is that the Court has attained a stature in
the pursuit of JUSTICE to provide a remedy even if one did not
already exist.

The Court also adopted a statement made by Lord Denning M. R. in
Packer v. Packer [1954] P. 15 at p. 22, thus:

“What is the argument on the other side?  Only this,
that no case has been found in which it had been done
before.  That argument does not appeal to me in the
least.  If we never do anything which has not been done
before, we shall never get anywhere. The law will stand still,
whilst the rest of the world goes on and that will be bad for
both”

In The State v. Gwonto [1983] 1 S.C.N.L.R., 142, this Supreme
Court declared thus:

“The Court has for some time now laid down as guiding principle
that it is more interested in substance than in mere
form.  Justice can only be done if the substance of the
matter is examined.  Reliance on technicalities leads to
injustice.”

And in the earlier case of Chinwendu v. Mbamali, [1980] 3-4
S.C., 31, the same Court declared:

“Care must be taken always, not to sacrifice justice on the
alter of technicalities.  The time is no more when
disputes are dealt with rather on technicalities and not on
merit.”

This general theme of placing justice above technicalities was
noticeable in the practice of the Supreme Court right from the
early days of the 1979 Constitution.  Thus, in Okeowo v.
Migliore, [1979] 11 S.C. 138, Aniagolu, JSC, declared that “the
laws of our land enjoin us that while respecting procedural
regularity, we must dosubstantial justice, with power to make
amendments which we deem fit or not to make as the occasions
demands”

What these legal giants were saying again and again, is that the
Supreme Court is specially endowed with the power and authority to
do JUSTICE and to ignore law when it is technical and would create
injustice, and to avoid at all cost a mechanical approach to the
interpretation of the law.

Now, has justice been served in Rivers and Zamfara
States?  No!  In one case innocent electorate
in their hundreds of thousands were prevented from voting for their
party by judicial order.  In Zamfara, where voting took
place, the verdict of the electorate was taken away from the
victorious party and awarded by the Judiciary to the woeful
losers.  In the next four years, Zamfara State will be
governed by a party and politicians rejected by the
electorate.  This indeed shocks the conscience of
Nigerian humanity.

I have so far omitted a discussion on the provisions of Section
140(1) – (3) of the Electoral Act, which prohibits any Court from
declaring a loser of an election elected even if the person with
the highest votes was not validly elected.  That Section
provides as follows:

“140. – (1) Subject to subsection (2) if this section, if the
Tribunal or the Court has as the case may be, determines that a
candidate who was returned as elected was not validly elected on
any ground, the Tribunal or the Court shall nullify the
election.

(2)  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.

(3)  If the Tribunal or the Court determines that a
candidate who was returned as elected was not validly elected on
the ground that he did not score the majority of valid votes cast
at the election, the Election Tribunal or the Court, as the case
may be, shall declare as elected the candidate who scored the
highest number of valid votes cast at the election and satisfied
the requirements of the Constitution and This Act.”

However, I am not interested in the provisions of the Electoral
Act 2010.  I am only deeply concerned and interested in
the fundamental and peremptory principle of Justice.  No
Judge should announce his judgment until he is satisfied
thatJustice has been served, no matter how strong the pull of
mechanical and technical law.

The Zamfara and Rivers State judgments are a national
tragedy.  We should not allow our legal system to throw
up such unimaginable injustice.  This major judicial
disenfranchisement of the Zamfara and Rivers electorate should be
reversed.  I advise the APC legal team to apply for a
review of the two judgments.  Their Lordships ought to be
given an opportunity to reverse this unprecedented tragedy.

The prefix “Justice” preceding he names of Supreme Court and
Court of Appeal Judges is significant, for it prescribes what they
stand for and what they represent, JUSTICE!

Professor Sagay (SAN), Chairman of
the  Presidential Advisory  Committee Against
Corruption (PACAC) writes from Lagos

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