Supreme Court’s Controversial Judgment on Lawan

Last week’s judgment of the Supreme Court affirming the Senate President, Dr. Ahmad Lawan, as the All Progressives Congress senatorial candidate for Yobe North, has left a sour taste in the mouth of those who thought that the justices would uphold the sanctity of the provisions of Section 115(d) of the Electoral Act, which forbids a person from signing a nomination paper or result form as a candidate in more than one constituency at the same election, Alex Enumah writes

Many Nigerians were shocked last Monday when the Supreme Court affirmed the Senate President, Dr. Ahmad Lawan, as the All Progressives Congress (APC) senatorial candidate for Yobe North.

In the majority decision, the apex court also set aside the decision of the Court of Appeal in Abuja, which affirmed the judgment of the trial court that declared Bashir Machina as the senatorial candidate for Yobe North.

Justice Centus Nweze who read the apex court’s majority judgment, held that Lawan’s major challenger, Machina, was wrong to have commenced his suit at the trial court via an originating summons in view of his allegations that the APC acted fraudulently in submitting Lawan’s name to the Independent National Electoral Commission (INEC) as its candidate.

 “The bedrock of the suit shows that there were allegations of fraudulent practices against the appellants. The 1st respondent accused the APC of fraudulently substituting his name with that of Lawan. Where there is an allegation of fraud it should not be commenced by an originating summons. There was a need to call witnesses to prove allegations of fraud.”

But in a minority judgment by Justices Emmanuel Agim and Adamu Jauro, the apex court said Lawan never participated in the APC primary held on May 28, as he withdrew voluntarily to participate in the presidential primary held on June 8, 2022.

In his lead dissenting opinion Justice Jauro faulted another primary held on June 9, 2022, where Lawan emerged, saying it was in breach of Section 84 (5) of the Electoral Act as the APC never cancelled that held on May 28 before organising another. He dismissed the appeal by the APC and awarded a cost of N3 million against the party and in favour of Machina.

Justice Agim, who also disagreed with the majority decision, said: “I affirm the brilliant judgment of the appellate court as to the appropriateness of the use of originating summons,” Agim said.

Justice Agim noted that relevant facts showed the withdrawal of the senate president from the senatorial race to pursue his presidential bid. He further noted that facts in the case showed that Machina won the senatorial primary, adding that the APC did not give INEC 21 days’ mandatory notice before going ahead to conduct another primary election on June 9. He said the APC did not cancel the May 28 election before going ahead to conduct another primary election, adding that INEC did not monitor the June 9 primary election.

“The appellant has not contradicted that findings of fact are perverse or unreasonable. The failure to challenge the findings of facts defeats the entire appeal,” Agim said.

Trouble started when on May 28, 2022, APC conducted primary election to determine the senatorial candidate for Yobe North Senatorial District and Machina participated. Lawan did not because he contested for the party’s presidential ticket and lost to Senator Bola Tinubu.

After the primary, Machina was declared the winner. But surprisingly, APC later cancelled the primary on the alleged grounds that the person that conducted/monitored the primary election was not nominated by the National Working Committee (NWC).

The party thereafter refused to submit Machina’s name to INEC. He cried out that the Senate president and some forces within the party were trying to clinch the ticket from him.

Accordingly, on June 9, 2022, APC’s NWC conducted another primary election. This time around, Machina did not participate. But Lawan participated and was declared the winner.

The confusion left the electoral body with no choice but to leave the senatorial district candidacy empty when it released the full list of candidates across the country.

This prompted Machina to file a suit at the Federal High Court in Damaturu wherein they challenged the actions of the APC and praying the court to declare him as the authentic senatorial candidate.  In September 2022, the court declared him as the winner and ordered both the APC and INEC to recognise him as the candidate.

When Lawan appealed the judgment, the Court of Appeal in Abuja affirmed Machina as the authentic candidate.

After losing at both levels, the ruling party took the case to the Supreme Court where it argued that the primary election held on May 28 last year which produced Machina was in breach of the Electoral Act 2022.

The counsel to the party, Sepiribo Peters, contended that one Danjuma Manga who conducted the said primary election was not nominated by the National Working Committee of the party. He told the court that the APC cancelled the primary on account of the irregularities observed during the exercise. The lawyer argued that the other primary held on June 9 was conducted by the APC NWC, and produced Lawan as the party’s authentic candidate.

However, Machina’s lawyer, Sarafa Yusuf, prayed the Supreme Court to dismiss the appeal for lacking in merit on the ground that the Senate President did not challenge the suits at both the trial and lower courts.

After the Supreme Court’s judgment, which was in his favour, Lawan commended the judiciary for strengthening democracy, stating that the ruling showed that “democracy is at work.”

Addressing journalists, Lawan said, “What happened was democracy at work and the courts gave their various judgments and of course, the Supreme Court gave the final judgment. I want to at this point commend the Supreme Court and of course the judiciary generally for making this kind of judgment to strengthen our democracy because it is not only for politicians to work and strengthen democracy. All institutions have their roles to play. So, I commend them.”

Many have been wondering how the “judgment strengthened our democracy” when it was clear that the judgment was perverse and a total miscarriage of justice.

To many Nigerians, the judgment was not “democracy at work”.

Lawan participated in the APC presidential primaries. And pursuant to Section 115(d) of the Electoral Act, a candidate cannot be nominated in two elections. So, it was the party that decided to forward his name to INEC, ironically against the law which he as the Senate president and other lawmakers created. To ensure that Lawan emerged successful, the Supreme Court resorted to the use of technicalities.

Reacting to the judgment, a constitutional Lawyer, Dr. Kayode Ajulo, said most of the counter comments targeted against the Supreme Court’s decision were misconceived, particularly from the perspective of the law, adding that the apex court’s decision was sound.

He said the APC should be blamed for any controversy the apex court decision had generated.

“It baffles me how people demand substantial and fair judgment but still frown at technicality, whereas, the same technicality is the law.

“The concept of law is based on a technicality and that’s what those who seem uncomfortable with the apex court ruling must understand.

“The whole world is aware that Lawan participated in the APC presidential primaries and pursuant to the provisions of Section 115(d) of the Electoral Act; a candidate cannot be nominated in two elections.

“So, it was the APC that forwarded Lawan’s name to INEC, that ironically created a Lawan as President and another as a lawmaker.”

He said Machina, feeling cheated, was within his right to recover his mandate, adding however, that the facts of the case remained that the grouse of Machina bothered on fraud.

He added that this should have been instituted by way of Writ of Summons and not Originating Summons as Machina did.

Many have however faulted Ajulo’s position, recalling that the Supreme Court had on several occasions cautioned the lower courts against sacrificing the merits of cases on the altar of technicalities.

A lawyer, who did not want his name in print, also described the judgment as judicial summersault because the same court issued practice direction that all pre-election matters must be resolved with originating summons.

“Their judgment was based on technicalities. What happened to judicial activism for what is right in the eyes of the public?

 “This is simply judicial abracadabra. It’s disheartening and worrisome that our Supreme Court is still like this in the post-Tanko Muhammad era. Some of us thought we turned the corner after Tanko’s exit. It’s the same court that issued the practice direction that all pre-election matters must be resolved with originating summons that’s doing this summersault!”

A political affairs analyst, Samson Weynu, not only described the verdict as ridiculous, he said the verdict makes him feel ashamed to be a Nigerian.

“This is one reason I don’t believe that APC is anywhere different from PDP. They’re two sides of a coin. They have surely compromised the Supreme Court judges to ensure that both Akpabio and Lawan remain on the ballots. Just read the details of the so-called split judgment (3 to 2) and you will feel ashamed of being a Nigerian.”

Also, another lawyer wondered why the apex court wanted Lawan, who didn’t participate nor win the primary , to be made the authentic candidate.

 “How can you declare Senator Lawan who didn’t participate nor win the primary as the authentic candidate? It is also very glaring that Lawan contested the presidential and lost to Tinubu. How then did the Senate ticket go to him? It is just ridiculous.” 

The lawyer recalled that the Supreme Court had warned the lower courts against the use of technicalities to deny litigants justice.

“ To know that the same justices of the Supreme Court use technicalities on many occasions is baffling.  Why they used technicalities to judge this particular case only God knows. It is completely unfair to use technicalities to deny Machina justice,” he said.

Just like the same Justice Nweze said in his dissenting judgment when the same Supreme Court sat on a matter between Senator Hope Uzodimma and a former governor, Hon. Emeka Ihedioha that the court’s decision “will continue to haunt our (Nigeria’s) electoral jurisprudence for a long time to come,” the Bashir Machina and Ahmad Lawan’s case will also continue to haunt the Supreme Court and Nigeria’s electoral jurisprudence.