Adeleke V INEC: Discordant Judicial Tunes And The Dark Clouds Of Technical Justice In Nigeria’s Election Jurisprudence By Steve Austin Nwabueze

The Supreme Court of Nigeria, like that of every other legal
system worth its salt is steeped in a policy-making role aside
conducting its primary role as the judex in resolving disputes. As
the apex court it is always looked upon to show the way when
judicial interpretations from the Courts below become blurry and
fuzzy.

In exercising this role, its decisions more often than not,
forge a new path of national existence and has far-reaching
economic and political implications. Nigeria’s well-documented
dalliance with military rule has in a way, affected the
policy-making role of the Supreme Court. In some notable cases, the
Supreme Court has stood tall and exhibited commendable judicial
intrepidity by interpreting the law, fearlessly.

Two notable cases where the Supreme Court demonstrated
commendable judicial activism are the cases of Council
of University of Ibadan vs. Adamolekun (1967)
ANLR 225 SC and EO Lakanmi and Ors vs.
Attorney General of the West and Ors. (1971 1 UILR
201

The Supreme Court was invited in
Adamolekun’s case to interpret the
provisions of S.6 of Decree no 1 of 1966: which provided:

“No question as to the validity of any decree, or
edict should be entertained in any court of law in
Nigeria.”

The Supreme Court in interpreting this section rejected the
contention that it was an ouster clause against its jurisdiction.
Rather, the court interpreted it to mean that the court could not
question the competence of the military authorities to promulgate
decrees and edicts. The Supreme Court was, however, not so
diplomatic in Lakanmi’s case where it had
gone on to declare another draconian decree of the military, decree
no 45 of 1968 as null and void.

Justice Niki Tobi (of blessed memory) had in the case of
Omoju v. Fed. Republic of Nig. (2008) 2-3 SC (Pt.1) 1
at 13 lines 15 – 30  recognized the eminent
position of the Supreme Court as a policy-making court when he
stated in the following resonant judicial tones thus:

The appellate system is there to correct mistakes of
trial Judges. Where a mistake of a trial Judge does not affect the
live issues, props or fundamentals of the matter, an appellate
court will not allow an appeal. Courts of law have long moved away
from the domain or terrain of doing technical justice to doing
substantial justice. This is because technical justice, in reality,
is not justice but a caricature of it. It is justice in inverted
comas and not justice synonymous with the principles of equity and
fairplay. Caricatures are not the best presentations or
representations.”

Since emerging from the shadows of its dark military past,
Nigeria’s Supreme Court has had a major highlight reel of case law
principles that have gone ahead to enrich our jurisprudence. It is
pertinent to mention that following the transition from military to
democratic rule, emphasis has been placed on improving the
democratic process in which the Supreme Court plays an integral
role. A fundamental part of that role is the interpretation of our
electoral laws. To this end, we have been regaled with a potpourri
of judicial decisions ranging from the disappointing to the
enriching. Expectedly, most of these decisions emanated from
seriously contested election petition cases.  I would briefly
comment on just a few of the decisions before delving into the pith
of this article.

Obi vs INEC turned on the question of the
commencement of the term of an elected Governor. It is worth
mentioning that at the time of making this decision, there was no
limitation of time for the determination of electoral disputes.
Accordingly, this decision had implications for both the affected
electorates and the INEC as a body.   The palpable poser
was whether Peter Obi should complete Dr Chris Ngige’s tenure or
start a fresh term of four years. There were concerns on the
implication of a decision that tows the commonsense path of
allowing him to start his own tenure even if it would undermine the
electoral timetable of Anambra State. The Court stood tall in
arriving at its decision and enriched our jurisprudence.

One of the most recent decisions on this point was in
 Maihaja v. Gaida (2017)
LPELR-42474(SC) the appellant was the plaintiff in an
Originating Summons filed in Suit No.
FHC/ABJ/CS/220/2015, dated 19th day of March, 2015
and filed at the Registry of the Federal High Court, Abuja. The
suit sought a number of declaratory reliefs and sundry orders
including nullification of the nomination of the 1st Respondent as
the candidate of the 2nd Respondent in the 2015 Governorship
election of Yobe State. The Supreme Court in upholding the
nomination of the 1^st respondent, resolved the vexed
issue on when the tenure of a Governor commences when it held as
follows:

 Turning to the issue at hand, there is no
dispute as to the fact that the 1st Respondent became Governor by
operation of Section 191(1) of the Constitution (Supra) upon the
demise of the then Governor of Yobe State. Put differently, the 1st
Respondent did not assume office as Governor in 2009 as a result of
his election into that office. He was constitutionally “holding”,
and held the office in trust for the duration of the remaining
tenure of the late Governor Senator Ali Mamman. Section 182(1)(b)
of the Constitution does not affect or impact on when tenure is
spent-out by operation of Section 191(1) of the same Constitution.
A community reading of Sections 180(1), (a), (2)(a), 181(1),
182(1)(b), 185, 186 and 191(1) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended) reveal that the 1st
Respondent had not been elected into the office of Governor of Yobe
State twice prior to the holding of the Governorship election on
the 11th of April, 2015 in Yobe State.

Next came Hon. Faleke V Independent National Electoral
Commission (INEC) & Anor (SC. 648/2016) [2016] NGSC 84 (30
September 2016) (SC. 648/2016) [1960] NGSC 1 (29 September
2016);

The facts

In preparation for the Kogi State Governorship Election
scheduled for 21st November 2015, the All Progressives Congress
(APC) held primary elections on 29th August 2015 to choose its flag
bearer. Several members of the party, including the late Prince
Abubakar Audu and the 2nd respondent, Yahaya Bello, contested the
said primary whereat the late Prince Audu emerged the winner while
the 2nd respondent came second. The appellant herein did not take
part in the primary election.

Having won the primary election, the late Prince Audu nominated
the appellant, Hon. Abiodun Faleke as his running mate and both
names were submitted to the Independent National Electoral
Commission (INEC), the 1st respondent herein, by the APC as its
candidates for the Governorship Election. The election was held as
scheduled on 21/11/2015. At the close of the polls, the late Prince
Audu/Faleke ticket was leading with 240,867 votes while the
People’s Democratic Party (PDP) was in second place with 199,248
votes. However, as a result of certain electoral malpractices
discovered to have occurred in 91 polling units, the 1^st
respondent, relying on its Manual for Election Officials (updated
version) by a Public Notice issued on 22nd November 2016 declared
the results of the election inconclusive on the ground that the
total number of registered voters in the disputed 91 polling units
where elections had been cancelled, which was 49,953, exceeded the
margin of votes between the APC and the PDP, which was 41,353 votes
and could therefore affect the final outcome of the election.

Unfortunately, Prince Abubakar Audu passed on, on 22nd November
2015 before the conduct of the supplementary election. The news of
his demise was communicated to the 1st respondent (INEC) vide a
letter dated 23rd November 2015.  By a letter dated 24th
November 2015, the 1st respondent requested the APC to substitute
the deceased with a suitably qualified candidate. The APC
substituted the deceased with the 2nd respondent, Yahaya Bello, who
had come second in the party’s primaries and notified the 1st
respondent accordingly.

The supplementary election took place on 5th December 2015 in
the 91 polling units. The APC, with the 2nd respondent as its new
candidate, scored 6,885 votes as against 5,363 votes scored by the
PDP, its closest rival. The votes were added to the votes earlier
scored by the respective parties on 21st November 2015 and the 2nd
respondent was declared the winner of the election and returned as
the duly elected Governor of Kogi State.

The first litigation

However, before the conduct of the supplementary election and
upon the declaration by the 1st respondent that the election was
inconclusive, followed by the death of Prince Audu, the appellant
instituted an action before the Federal High Court in Suit No.
FHC/ABJ/CS/977/2015 vide an originating summons seeking an
interpretation of Sections 1(2), 179(2) (a) & (b) and 181 of
the 1999 Constitution (as amended). The appellant amongst other
reliefs sought the setting aside of the declaration of the 1st
respondent as the duly returned candidate for the election.
 His contention was that the joint ticket of late Prince Audu
and himself having scored 240,867 votes, which constituted a
majority of the lawful votes cast and also constituted one quarter
of the votes cast in each of the 21 Local Government Areas of the
State, by virtue of Section 179(2) (a) & (b) of the 1999
Constitution (as amended), the election was concluded and the late
Prince Audu and himself were deemed to have been duly elected. It
was also his contention that by virtue of Section 181 (1) of the
Constitution, he was entitled to step into the shoes of late Prince
Audu as the Governor elect. The suit was however struck out upon
successful objections thereto by the respondents on the ground that
by virtue of Section 285 of the Constitution, only an Election
Petition Tribunal had the jurisdiction to look into his
complaints.

Election Petition

In arriving at its decision, the Supreme Court construed Section
153 of the Electoral Act to mean that the  Commission may,
 subject to the provisions of the Act, issue regulations,
guidelines, or manuals for the purpose of giving effect to the
provisions of the Act and for its administration thereof. In simple
terms, the Supreme Court accorded the exalted status of subsidiary
legislation to that section.

The Court had held in part as follows:

In my view, the two lower courts held rightly therefore
that upon the declaration of the Kogi State Governorship election
as inconclusive there was no return made; also with the death of
Prince Abubakar Audu, being the All Progressives Congress
Governorship candidate for Kogi State, the outcome did not render
the 240,867 votes cast in favour of the Party wasted votes nor did
it make the vote accrue to the appellant and thus making him the
Governor-elect in the absence of any return made in respect of the
election held on 21st November, 2015. For all intents and purposes,
the APC, also by extension the 2 respondent both have an unimpeded
legal interest in the said 240,867 votes. See the cases of
Agbaje V. INEC 4 NWLR (Pt. 1501) page 157 at 165 – 166;
Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489 at 558 – 559; also,
Swede V. INEC (2014) 18 NWLR (Pt. 1438) 56 at
126.

With the declaration of the election as inconclusive,
and the consequent death of Prince Abubakar Audu, the appellant can
no longer lay any legal right in the said votes.  This is
sequel to Section 187(1) of the Constitution 1999.

The Supreme Court thoroughly deserved every commendation it got
on this decision. The Supreme Court had also taken the view that
INEC was within its rights to conduct a supplementary election as
it is empowered by its electoral guidelines and manuals.

Next came the issue of re-run election and this is where it got
interesting

In making this analysis, it is pertinent to point out that the
writer has not been privileged to read the judgments of the courts.
This analysis is essentially derived from excerpts from the print
and electronic media and therefore, does not represent the writer’s
full grasp of the judgment. The writer hereby acknowledges his
limited knowledge of the arguments canvassed before the courts and
the ratios thereon.

ADELEKE V INEC – how the discordant tunes
started

Factual Background to the consolidated
appeals:

The PDP candidate in the September 22 and 27 elections, Ademola
Adeleke, filed a petition at the election tribunal to challenge the
victory of Mr Oyetola of the APC. The main election was held on
September 22 while a supplementary election was held on September
27 in seven polling units. The electoral commission, INEC, declared
Mr Oyetola winner of the election after the supplementary poll.

Mr. Adeleke, who claimed he polled the highest number of votes
in the election, approached the tribunal and invited the tribunal
to nullify the election of Adegboyega Oyetola and declare him the
winner of the election. The Osun Governorship  election
 tribunal ruled in Mr. Adeleke’s favour and declared him the
winner of the election. In a split judgment of two to one, the
tribunal ruled that INEC was wrong to have ordered a rerun
election. It nullified the rerun. The court also ruled that INEC
did not comply with its guidelines on results from 17 polling unit
The tribunal then deducted the results of both parties from the
declared total of votes in the affected 17 polling units. According
to the tribunal, the PDP won the election with 254,698 votes, while
the APC came second with 253,452 votes. The tribunal also said that
the PDP would still have won the poll even if it had opted to
validate the supplementary election.

The Court of Appeal decision

But in a swift move by the Court of Appeal, the Intermediate
Court ruled that “the tribunal was in patent error when it set
aside the rerun.”

The appellate court, which had also delivered its verdict in a
split decision of four to one, ruled that the judge who issued the
majority decision at the tribunal, Peter Obiora, was absent on
February 6, 2019, when a major discussion on the issue of
non-compliance was tabled before the tribunal; and could therefore
not have viewed the issue squarely.

Apparently dissatisfied, Mr Adeleke challenged the decision at
the Supreme Court.

A seven-man panel of the Supreme Court presided over by Acting
Chief Justice of Nigeria (CJN), Justice Tanko Mohammed delivered
judgment on the appeal filed by Ademola Adeleke against the
majority decision of the Court of Appeal on July 5, 2019.

Adeleke’s four appeals, marked: SC/553/2019;
SC/554/2019; SC/55/2019 and SC/556/2019, in the main,
challenged the May 9, 2019 judgments of the Court of Appeal, Abuja
which affirmed the election of Adegboyega Oyetola of the All
Progressives Congress (APC) as the Governor of Osun State. The
Supreme Court in a split decision of 5-2 affirmed the decision of
the Court of Appeal and upheld the election of the APC candidate,
Adegboyega Oyetola. It also set aside the majority judgment of the
Election Tribunal which had allowed Adeleke’s petition and declared
him winner of the election.

Personal reflections on the
judgment

It is quite revealing that the majority judgment at the tribunal
did not include the Chairman’s views, who, as stated above,
dissented. Justice Peter Obiorah and a fellow member gave majority
decision in the Tribunal returning Senator Adeleke as winner. 
The Chairman, Justice Sirajo gave a minority decision which more or
less upheld the decision of INEC to conduct a rerun, relying on its
guidelines. The other two members of the panel handed down serious
judicial excoriation to INEC for being in breach of its own
guidelines. Again, the writer would refrain extensive comments on
the decision of the tribunal until he receives the full judgments.
In any event, excerpts of the judgment show demonstrable errors by
all the panels involved in the determination of this dispute.

At the Court of Appeal, George Ita Mbamba JCA demurred from the
majority views that allowed the appeal. Paul Galinje and Akhaaas
JJSC dissented from the Majority decision at the Supreme Court.
Thus from the Tribunal through to the Apex court there was no
unanimous decision. The writer has no recollection of any election
petition case in recent times where such an incident occurred.
Curiously, the majority decision of the Supreme Court failed to
address the propriety of the rerun conducted by INEC. Certainly,
the Supreme Court cannot just affirm the decision of the Court of
Appeal without more. There should be policy considerations on the
conduct of our elections going forward with particular reference to
where elections have been deemed inconclusive by the electoral
umpire. After all, this was the major plank of the appeal in the
first place. Apparently, Akaahs, JSC appears to be the only one who
addressed the issue of the propriety of the rerun conducted by
INEC. Ordinarily, the court’s opinion on the issue would guide the
conduct of future elections. On the contrary, INEC may have just
been issued the needed judicial imprimatur on rerun elections. How
soon this issue would be revisited is unclear at the moment.
Otherwise, this case would portend a dangerous precedent which
would take us down the oft dreaded and perilous journey into
technical Justice. It whets my appetite to find out how this issue
would be eventually resolved going forward.

I would conclude with the immortal words of Oputa JSC in
Bello v. Oyo State (1986) 5 NWLR (Pt 45) 826 at
886: when he pilloried the penchant for technical justice
are worthy of reproduction as follows:

“The picture of law and its technical rules
triumphant and justice prostrate may no doubt have its admirers.
But the spirit of justice does not reside in forms, formalities nor
in technicalities nor is the triumph of the administration of
justice to be found in successfully picking one’s way between
pitfalls of technicality. Law and its technical rules ought to be a
handmaid to justice…”

By-line – Steve Austin Nwabueze is a Senior Associate in
the law firm of Perchstone and Graeys LP, Lagos.