On May 24, this year, a five-member panel of the Supreme Court headed by the Acting Chief Justice of Nigeria (CJN), Justice Tanko Muhammad nullified the elections of all the candidates of the All Progressives Congress (APC) in Zamfara State in the 2019 general elections and declared that the party with the highest number of votes cast at the election outside the appellants is the winner of the election. In this critique by Prof. Ijaodola, the Dean, Faculty of Law, Igbinedion University, Okada, Edo State, he is of the view that the Supreme Court was wrong in its decision and should not hesitate to review the judgment at the earliest opportunity provided in future.
The word ‘shall’ as used within the context of section 140 (2) is a word of command that ought to have been given effect by the Supreme Court. It was the decision of the Supreme Court in Bucknor-Maclean v. Inlacks Ltd that where the word ‘shall’ is used in a statute, it is a word of command that must be given “a compulsory meaning as denoting obligation”. It is most humbly submitted that the Supreme Court did not give effect to section 140 (1&2) of the Electoral Act 2010 (as amended). It ought not to have made an order allowing those who scored the second largest votes in the elections in Zamfara State to be declared as winners of the elections contrary to section 140 (2) of the said Electoral Act of 2010 particularly when they were not even parties to the suit and there were no prayers before the Court on the issue. It is also very clear that section 140 (1) envisages the need for a case before a court or tribunal and a determination in respect of a candidate, without doubt, who must be before the court as to whether or not the candidate was validly elected. Orders can only be made in respect of parties before a court and in respect of reliefs made before the court. These were not before the Supreme Court in respect of those who took the benefits of the decision of the Court.
It is again most humbly emphasized that the errors committed by the Supreme Court have been further demonstrated by the following facts: a. The PDP and the affected candidates who eventually took the benefits of the decision of the Supreme Court were not parties before the Supreme Court. b. There was no relief before the Supreme Court that persons with the second largest votes who were not parties in the suit should be declared as winners in the election conducted in Zamfara State. Therefore, a good analyst should be surprised about the rational for the decision of the Supreme Court. C. The PDP and its candidates did not fully participate in all the stages of the said election in line with section 140 (3) of the Electoral Act since they did not inform voters of the non qualification of the APC candidates for the elections and the consequences of voting for them during the campaigns but they kept mute like Shakespearian’s Patience “smiling at grief”.
(ii) The Position in England on the Issue
Although it is very clear that under the position in England a person who scores the second largest votes in respect of an election can be declared as winner upon the disqualification of a declared winner, it is very clear that the circumstances in the English cases that informed the decisions are different from the case before the Supreme Court. For example, in Bristol South East Parliamentary Election, it was held thus: Where the facts which constitute incapacity or disqualification by status of a candidate from election exist and are made known to the electorate before their votes are cast, and the voters are also made aware that the legal consequences of those facts might constitute disqualification, votes given to such candidates are given at the electors’ peril, and where disqualification in law is established, such votes are thrown away and are null and void, and the court is bound to declare that the candidate for whom the (next) highest number of valid votes was cast has been duly elected.
It is very clear from the above English decision that before a person who scores the second largest votes at an election can be declared the winner of the election, the following must exist: a. The declared winner of an election must not be qualified for the election, b. The non qualification of the declared winner should be made known to the electorates before casting their votes and C. The voters must be made aware of the legal consequences of proceeding to vote for a disqualified candidate.
It is most humbly submitted that steps in (b) & (c) above are stages in an election within the meaning of section 140 (3) of the Electoral Act, 2010 (as amended). It is only when the above facts are established before a court that votes given by electors to a disqualified candidate can be declared null and void or wasted votes. Further, it is submitted that the person that is expected to make the facts of disqualification and the consequences of voting for such person known to electors must be the person or persons who will benefit from the proceedings of a court upon disqualification of an elected candidate that should inform electors about the facts of disqualification and the consequences particularly during the conduct of campaigns. There was no such evidence on record before the Supreme Court that the Peoples Democratic Party and all the candidates who have now taken the benefits of the decision of the Supreme Court informed the electors during campaigns of the APC candidates disqualifications for the said elections. They could not have even informed electors of facts that did not exist because as at the time of the election there was a subsisting decision of a High Court in Zamfara State that the APC duly conducted a valid primary election and it was on the basis of this fact that the Independent National Electoral Commission (INEC) fielded the nominated APC candidates for the said election.
(iii) The Position in Nigeria from Previous Cases
The Nigeria courts also support the view as stated under the English electoral process. For example, in Raphael Omoruyi Ebogen v. Richard Oni Obadiaru, the Court of Appeal held as follows: In our view, on the authorities, the points which must all be present before a second candidate, at an election could be declared duly elected where there was another candidate who scored a majority vote are: (i) That there is a law which disqualifies the candidate from contesting the election if a certain set of facts exist; (ii) That the candidate who scored majority votes was in point of fact disqualified from being elected at the time of the election; and (iii) That the fact that he was so disqualified was either notorious or was brought to the notice of the voters in a form sufficiently definite before they cast their votes for the disqualified candidate who scored majority votes. Similarly, in Ameokoja v. Eyiowuawi, the rudiments of this position are emphasized in the following manner:…Where a disqualified person is elected, the votes cast for him are thrown away and his opponent is deemed to be elected if, but only if, the facts giving rise to the disqualification were so notorious as not to require proof that they were within the knowledge of the electors or the evidence clearly shows that the facts were brought to the knowledge of the electors; otherwise the election is void and a new election must be held.
The decision of the Court of Appeal in 1992 in Prince Kola Bukoye v. Rasheed Ijaodola did not have all the above rudiments required of voters, so one may not support the view of the Court of Appeal ordering a fresh election upon disqualification of the Appellant but for the express provision in the Electoral Decree of 1992 (section 42 (3) of Decree No. 18 of the 1992) to the effect that a court could only make an order of fresh election upon disqualification of an elected candidate. Section 140 (1&2) of the Electoral Act 2010 is on all fours with section 42 (3) of the said Decree. The Supreme Court in the APC’s case did not make such an order of fresh election although there is a clear provision in the Electoral Act 2010 (as amended) that provides for a fresh election only under the circumstances of disqualification of an elected candidate as indicated above.
(iv) Condition under which a person can be declared elected
Section 140 (3) of the Electoral Act 2010 (as amended) states that an Election Tribunal or Court “shall declare as elected the candidate who scored the highest number of valid votes cast at the election and who satisfies the requirements of the Constitution and the Electoral Act.” This can happen where a 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.” This section must have influenced the Supreme Court in arriving at its decision of awarding the benefits of an election to persons not before it and in the absence of a relief to the effect before the court. But this is also erroneous. It is most humbly submitted that section 140 (3) of the Electoral Act envisages a situation where a person who participated in an election but was declared as winner when he did not score majority of lawful votes and the votes of the rightful person who won the election is restored. Where the arithmetic calculation of the votes are effected and it is discovered that the person who scored the second largest votes was actually the winner of the election, justice demands that it should be so declared. The APC’s case at the Supreme Court did not fall within this ambit. It actually fell within the ambit of section 140 (1&2) because it was all about disqualification for the said elections as in Bukoye v. Ijaodola’s case already mentioned above and not a case of two qualified persons that contested an election and the results were declared in favour of the person who did not win the election. Indeed, with utmost respect, this is another error committed by the Supreme Court.
(v) Effect of the Inaction of the PDP
The PDP is a political party that fielded candidates in the Zamfara State elections. Without doubt, they were aware of the intra party disputes in the APC. After the conduct of the election the party and its candidates ought to have filed an application for joinder in the APC’s case in court. They ought to have stated that they were the rightful winners of the elections in Zamfara State because the APC could not be said to have fielded qualified candidates for the elections. The PDP and its candidates did not take such step. Equity aids the vigilant and not the indolent so the saying goes. They just sat in their homes and became beneficiaries of a court decision for which they were not parties in the suit. Also they ought to have fully participated in all the stages of the said elections by informing the electors in Zamfara State during campaigns of the non qualification of the APC candidates and the consequences of voting for them. These they did not do, thereby contravening section 140 (3) of the Electoral Act, 2010 (as amended). In view of these omissions, it is very safe to reason that the PDP candidates in Zamfara State did not fully participate in all the stages of the said elections as required by that section. For this reason and others already stated, they ought not to have taken the benefits of the decision of the Supreme Court. This is case of judicial imposition on electors of persons they did not vote for. In a democracy, it is a decision that will give effect to its values that matters and not otherwise. One of such values is to allow electors to perform their functions of electing representatives to govern them and not a court doing that for them in a democracy. It is contrary to its values.
(vi) The Issue of Justice
It should be stated that the Supreme Court was probably genuinely informed by the issue of the justice of the matter in respect of the parties before it. This might have been predicated in not declaring any of the combatants in the APC’s intra party dispute as winners in order to teach them lessons of not getting their disputes resolved properly at the political party level. A lesson, ought to be learnt by the APC. The Supreme Court must have reasoned in this line. However, be that as it may, justice of an electoral process must be to the electors. It is not justice, to impose on them persons they did not vote for, to govern them. The essentials of democracy emphasize “government of the people, by the people and for the people” and not government by imposition by the courts that lacks legal backing. With due respect, the Supreme Court’s decision in the Zamfara APC case is a good example of how not to treat electors with injustice within the ambit of true democratic traditions. A court is not expected to be a Father Christmas. This is exactly what the Court has done by allowing candidates who had second largest votes in Zamfara State to become leaders of the people when the facts of disqualification of the APC candidates electors voted for was not brought to their knowledge and the consequences of voting for such candidates was also not brought to their knowledge. An order for a fresh election within the ambit of section 140 (2) would have provided the justice of the matter.
(vii) The Correct Path
There is nothing wrong for the APC to return to the Supreme Court and to urge it to review its decision in the said case for the sake of the development of our laws. There should be no irritation about this step. It is a good and sweet development when you put to task the pronouncements of judges whose decisions are final when there are good reasons to do so. A court has jurisdiction to correct its own errors when they are made known to it. Issue of jurisdiction can be raised at anytime and anyhow. Obaseki JSC made a jurisprudential statement on this position when he declared in Paul Odi & Ors. v. Gbaniyi Osafile as follows: Man is fallible, so are the thoughts of man. This fallible nature of man demands that, whenever errors of thoughts and thought processes surface and are exposed and brought to the attention of its authors, there should be power of jurisdiction to depart from the errors and thread the correct path.
The fundamental errors in the Supreme Court’s judgment are very clear from the ratio of its decision which is couched in the following manner in the judgment delivered by Paul Adamu Galumje, JSC. For the avoidance of doubt, a party that has no candidates in an election cannot be declared the winner of the election. This being so the votes credited to the alleged candidates of the 1st Appellant in the 2019 general elections in Zamfara State are wasted votes. For that reason it is hereby ordered that candidates of parties other than the 1st Appellant with the highest votes and the required spread stand elected into the various offices that were contested for in Zamfara State in 2019 General Elections. The questions arising from the above decision are; whether the decision has support in the reliefs before the court and in respect of the parties before it and whether or not voters in Zamfara State were aware of the non qualification of the APC and its candidates they voted for massively in the said elections? If they were aware of the non qualification and they still went ahead to vote for the disqualified candidates, then their votes can be regarded as wasted votes within the judgment of the Supreme Court but there was no evidence on record that the facts of disqualification of the APC and its candidates were brought to the knowledge of voters and the consequences of voting for them by the eventual beneficiaries of the decision of the Supreme Court who were not even parties to the proceedings. There were even no reliefs for any declaration for their benefits in the suit.
This is a case of injustice to electors. It would have been better if they were allowed to exercise their franchise in re-electing candidates they wanted. This would have been the case assuming an order of fresh election was made. The electors in Zamfara did nothing wrong and they ought not to have been punished by not allowing them to vote in a fresh election. Instead, blame may be apportioned to the PDP for its inaction as indicated above and for the APC for its inability to resolve its crisis that arose from the conduct of primary elections in Zamfara State.
It is apparent that in the attempt by the Supreme Court to punish a political party for treating electoral regulations concerning primary elections with levity, it closed its eyes to the rights of electors in a democracy to elect candidates they wish should govern them. Why should they be denied these rights in the name of punishing a political party when there was no evidence on record that electors were also culpable in what actually happened within the APC in Zamfara State and on the political terrain? The focus in a democracy is on electors; they should be allowed to exercise their franchise without any hindrance. To deny them the right to vote under any guise is not true democracy.
That the Supreme Court’s intention was to punish the APC and its candidates in the Zamfara elections is very clear from the judgment of Paul Adamu Galumje, JSC when he said; The democratic system this country has adopted was borrowed from the United States of America and other Democratic Nations of Europe. Those from whom we borrowed this system are steadily forgoing ahead in all areas of endeavour in order to create a stress free and economically viable nations. For this great country, some politicians either are ignorant of what party politic is, or out of mischief, have continuously dragged this nation backward. If care is not taken, this class of politicians will drag this nation to the Stone Age, where all of us will be consumed. I once again, as this court has consistently preached, urge this class of politicians to play the game according to law and guidelines which they themselves have enacted. It is only when this is done that sanity will take center stage in the domestic and international affairs of this great nation.
It is not justice in a democratic system to punish electors by denying them the opportunity to elect their representatives for offences they did not commit. In the attempt to punish political parties for their inactions, it is not proper to close our eyes to the rights of electors that constitute the bedrock of a true democracy. The decision in Prince Kola Bukoye v. Rasheed Ijaodola that allowed electors to re-exercise the franchise by the ordering of a fresh election by the Court of Appeal in Kaduna in 1992 must have been motivated by the need to allow electors to vote for their true representatives. At best, what the Supreme Court did in the APC’s case in Zamfara State by allowing persons who were not parties in the suit before the Court to enjoy the benefits of the decision of the Court can be described as judicial imposition in a democracy. This is strange; it is not in the spirit of what true democracy entails. The Court even spoke of candidates with the second largest votes in the election and still refer to them as candidates with the highest number of votes having stated that all the votes of the APC were wasted votes. If there were candidates with the second largest votes that took the benefits of the decision the Court, then it becomes a subtle contradiction in terms to still refer to them as candidates who scored the highest votes in the election. Referring to them as persons who scored the second largest votes presupposes that there was an election in which some candidates who were disqualified scored highest votes.
Conclusion
It is very clear from all that have been stated above, that the following facts have been established: a. That electors in Zamfara State could not have been taken as having been informed about the disqualification of the APC candidates they voted for overwhelmingly and the effect of voting for them more so when there was a subsisting court order by a High Court in Zamfara State that the APC conducted a valid primary election. They ought not to have been punished, b. That there was no relief in the suit before the Supreme Court that the PDP or any other candidate that participated in the elections and scored the second largest votes should take the benefits of the election upon disqualification of the APC candidates, C. The PDP and its candidates that took the benefits of the decision of the Supreme Court in the Zamfara APC’s case were not parties to the proceedings before the Supreme Court. They ought to have filed an application for joinder as interested parties since the election concerned them too but they did not do this.
They should not have benefitted from their inaction, D. That the decision of the Supreme Court that benefitted the PDP and its candidates is not in line with section 140 (2) of the Electoral Act, 2010 (as amended) that provides for an order of fresh election only upon disqualification of an elected candidate, E. The persons who scored the second largest votes in the elections did not perform their duties to electors in Zamfara State before the elections of the disqualified APC candidates which is a condition necessary before a person can be declared as winner of an election upon disqualification of another in line with section 140 (3) of the said Electoral Act; they ought to have inform electors of the non qualifications of the ACP candidates for the elections and the consequences of voting for them. Their inactions were fatal and they ought not to have enjoy the benefits of the Supreme Court’s decision more so when they were not party to the suit, F. That the justice of the matter is not one that imposes on electors those they did not vote for as their leaders but one that gives them an opportunity to vote for the candidates they wanted in a fresh election.
In view of the above, it is a good case for a review by the Supreme Court itself when the errors are brought to its knowledge. The Court has jurisdiction to do so in the interest of real justice to all stakeholders in a true democracy. Electors in Zamfara State have been unfairly treated by denying them the rights to vote for persons they wanted to govern them, which would have been made possible by an order of fresh election as required by law.
Prof. Ijaodola is the Dean, Faculty of Law, Igbinedion University, Okada, Edo State.
