Bolstered by last Friday’s Supreme Court judgment that overturned the dismissal of Governor Caleb Mutfwang by the Court of Appeal, legislators who faced a similar ousting from the intermediate court are optimistic despite the legal constraints, writes ERIC IKHILAE.
The repercussions of the Supreme Court’s decision last Friday on the governorship election dispute in Plateau State are still rippling across the nation. The January 12 ruling nullified the November 19, 2023, judgment of the Court of Appeal, reinstating Governor Caleb Muftwang. Although this resolved the controversy surrounding the rightful governor of the state, the judgment has sparked a renewed contest over claims to several legislative seats in Plateau State. The aftermath of the Supreme Court’s decision seems to have reignited the debate surrounding a number of legislative seats in the state.
After the Supreme Court ruling, Plateau lawmakers elected under the banner of the Peoples’ Democratic Party (PDP), who had previously had accepted their removal by the Court of Appeal, are now reconsidering their stance. A shift in perspective has emerged among them and their supporters, as they entertain the prospect of a favourable turn of events. This shift is noticeable in the warning issued by Gabriel Dewan, the Speaker of the Plateau State House of Assembly, who expressed reluctance to acknowledge the All Progressives Congress (APC) legislators benefiting from the Court of Appeal’s rulings.
Dewan said the state assembly has only eight lawmakers that he recognises, arguing that the Friday judgement by the Supreme Court has reversed the position of the Court of Appeal. He said: “As it stands now, only eight lawmakers are recognised as members of the state assembly.” The Speaker vowed that the 16 APC lawmakers who were declared winners by the Court of Appeal would not be recognised for now pending the interpretation of the Supreme Court judgement.
Since the Friday verdict, the PDP has vowed to reclaim the seats it lost to the Court of Appeal judgments; while the APC is contending that the damage was irreversible. Part of the steps being considered by the PDP include returning to the intermediate court to seek review and approaching the National Judicial Council (NJC) with a strongly-worded petition. The party’s Deputy National Publicity Secretary, Ibrahim Abdullahi, was quoted to have said the PDP resolved to petition relevant institutions in the federal judiciary to review the Court of Appeal’s decisions regarding affected Plateau lawmakers from Plateau State.
Abdullahi said, “Certainly, yes, we have already commenced efforts in that regard. This is because what the Supreme Court justices did was an indictment on the Justices of the Court of Appeal. We have always maintained that line of argument. We are going to seek redress for the members of parliament concerned. Senate, House of Representatives and House of Assembly. The redress will focus on their respective offices.”
In a counter posture, the APC has insisted that the Supreme Court judgement has not changed the status of its members, who are beneficiaries of the decisions of the Court of Appeal. Its spokesman in Plateau State, Sylvanus Namang was reported to have said: “Our members are comfortable as they remain authentic members (of the national and state assemblies).” Namang argued that since the Court of Appeal is the final court on legislative election litigation, the matter cannot proceed beyond that level.
The dispute and casualties
The Court of Appeal primarily based its decisions on the contention that the Peoples Democratic Party (PDP) lacked a legitimate structure in Plateau State, which could produce valid candidates. The appellate court asserted that the Plateau PDP’s non-compliance with a directive from the state’s High Court, instructing it to conduct new ward, local government and state congresses to establish the party’s state executive, rendered it incapable of having a valid executive. Consequently, the court argued that the party had no valid executive to organise primaries for the nomination of candidates in the last election.
In all, the Appeal Court’s decision affected two PDP senators, three House of Representatives members and 11 members of the State Assembly. Some of the affected lawmakers, including Ms. Beni Lar, Joe Philip Gwom and Bala N Fwanje have expressed their determination to reclaim their seats. Lar, who lost her Langtang North/Langtang South seat in the House of Representatives, has argued that since their case is a novel one, they would do everything possible to reclaim their mandates.
She said: “We don’t know what the National Judicial Council (NJC) will say yet because this kind of thing has never happened before. There is no precedence to our case, but there is no harm in trying. The Supreme Court verdict is the first of its kind in Nigeria and has restored hope, restored confidence in the judiciary. They have upheld the rule of law. The Appeal Court robbed us of our victory. It’s a learning experience. The Appeal Court erroneously robbed us of the people’s mandate. It is a national disaster for an arm of the judiciary to rob 24 lawmakers of their mandates. It is gross abuse of power to do so. It should have never happened at all. It means 24 constituencies have been handed over to illegal occupants,” Lar said.
Gwom lost the Barkin Ladi constituency seat in the state Assembly. He said: “I am a victim of the Court of Appeal judgement. But as far as I am concerned, I am going back to the House of Assembly, because the pronouncement of the Supreme Court supersedes that of Court of Appeal. Not only me but all of us from the state assembly and national assembly. We are going back to our seats because the Supreme Court judgement supersedes that of the Appeal Court. That was injustice meted to us by the Court of Appeal.
“I believe that in the next few days you will see action. I don’t need to talk too much. All I know is that the Supreme Court said APC should not have taken PDP to court over an issue that was internal affairs of PDP. It then means that what the Court of Appeal did was an illegality against PDP. We are going back to take our seats as law makers based on the mandate given to us by our constituencies.”
On his part, Fwanje, who lost his Mangu South state constituency seat, said: “To God be the glory, the Supreme Court has given us victory. Our victory has been restored. The judgement means that my seat is not lost. The apex court has confirmed to us that the Court of Appeal was not supposed to entertain the case. It then means there was no case against us at all. In other words, what the Court of Appeal did was to defend an interest, not the law. But now the apex court has come out with the true position of the law. It means our case has to be reviewed and we are coming back strongly to claim our mandate
“Plateau is going to set a precedent for the growth of democracy in this case. That illegality done to us by the Court of Appeal cannot stand because there will be another election in 2027. Our cases and that of the governor are similar; hence our own has to be reviewed accordingly because that of the governor has been decided. So I can assure you the NJC will definitely review our cases to correct the injustice,” Fwanje said.
Any remedy in the eye of the law?
Lawyers, including Mike Ozekhome (SAN), John Baiyeshea (SAN), Joseph Nwobike (SAN), Akinlolu Kehinde (SAN) and Otunba Tunde Falola are of the view that the deed has been done and that there are no remedies for the sacked lawmakers in the eye of the law. They noted that since the Electoral Act makes the Court of Appeal the last court in legislative election litigation, it was impossible to reverse the decisions of the Court of Appeal. Others are also of the view that since the 180 days provided for the hearing of election petition and the 60 days for appeal have since lapsed, there was little the affected legislators could do to reverse their fortune.
Baiyeshea said: “In the case of the National Assembly members, appeal terminates at the Court of Appeal; so the injustice to them is permanent and irreversible. There is no remedy for them now for this monumental travesty of justice to them. It is quite sad that, before our very eyes, the representatives the people of Plateau State, voted for, have been replaced by those ‘selected’ by the Court of Appeal. Democracy has been obliterated, basterdised and the people shortchanged. That’s the tragedy of a nation like Nigeria that never gets anything right,” Baiyeshea said.
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Nwobike also noted that there was nothing the affected legislators could do in view of the provision of the law that made the Court of Appeal the final court in legislative disputes. The senior lawyer said: “I must start by commending the Supreme Court of Nigeria for always using the powers vested in it by the Constitution to defend the people’s choices whenever the occasion arises. The judgements delivered on Friday are a reflection of the cardinal role the Judiciary plays in deepening democracy in Nigeria.
“Regarding the options open to those who lost their legislative seats on account of the judgments of the Court of Appeal, sitting in Jos, I think that it must be recognised that the Court of Appeal is the final court for the determination of that level of electoral disputes in Nigeria. There are no clear legal or constitutional basis for them to seek for judicial review of those judgements in any manner that will not create a bad precedent in our jurisprudence. However, it is left for the lawyers to the persons affected to deeply consider the issues and the extent to which the equitable rule of ibi jus ibi remedium can be of any material help.
“Recall also that similar applications that were made to the Supreme Court recently was met with heavy cost against the counsel who filed the application on behalf of the parties. I will, therefore, advise that the matter should be treated as closed so as not to create confusion in the electoral jurisprudence with respect to the finality granted to the Court of Appeal by the Constitution,” Nwobike said.
On his part, Falola noted that by the provision of Section 246(1) of the Constitution, the Court of Appeal currently exercises the final jurisdiction on the decision of the election tribunal in respect of all legislative elections cases be it National Assembly or State Houses of Assembly. He added: “What that means is that once a candidate, who participates in Senatorial, House of Representatives or State House of Assembly elections and loses the election, he petitions the election tribunal.
“And when he loses the petition, his final destination, in terms of appealing against the tribunal’s decisions, ends at the Court of Appeal, being the final court. At that juncture, the only option open to him is to abide by the outcome of the decision of the Court of Appeal. If he loses the appeal, there is really nothing he can do than to wait for another election period, as no further right of appeal exists,” Falola said.
Criticisms of Court of Appeal
Baiyeshea, who expressed disappointment in how the Court of Appeal handled the case, said it was very sad that the appellate court justices chose to replace elected representatives with their selected ones. He said: “The judgment of the Court of Appeal in respect of National Assembly members that removed in Plateau State is quite unfortunate. This is one of the ugly scenarios in our Nigerian system and one of the irreversible errors in our legal/administration of justice.
“It is obvious now that, with the judgment of the Supreme Court yesterday affirming the election of the Governor of that state (who was removed by the Court of Appeal for the same reasons that the National Assembly members were removed), that the Court of Appeal’s judgment is a complete travesty of justice to those the National Assembly members. The governor was lucky that, by our present laws, appeal in governorship matters terminates at the Supreme Court; so he had his case reviewed by Justices of that court. Happily the unjust judgment of the Court of Appeal against him was set aside.”
Kehinde said what the Court of Appeal Justices did amounted to judicial rascality. He added: “I will encourage, especially the intermediate court – the Court of Appeal – to know that it has no choice, once a position has been laid down by the Supreme Court, it is judicial rascality to depart from it. This was what happened, with respect, in some of these states like Plateau, Kano and a number of other states. This was what they did, with respect, I am not castigating the whole bench of the Court of Appeal, but those involved got themselves involved in judicial rascality.
“What is good is good, and what is bad is bad. What they did has no basis in law. The Supreme Court has condemned it; I am not the one condemning it. And let them also have a rethink that they owe it to this country to ensure the survival of this democracy. This is a responsibility that we all owe to this country,” Kehinde said.
How to avert recurrence
Law experts suggested amendments to the Constitution and other relevant laws to allow National Assembly election cases terminate at the Supreme Court. Ozekhome noted that, in view of what happened in the Plateau case, he was reviewing his earlier stance that not all election cases should terminate at the Supreme Court. He said, “I was one of those who felt like the Supreme Court should not be bothered with too many of these; the House of Assembly, House of Representatives, and Senate (cases) could end at the appeal level, but from what we have seen particularly in the Plateau scenario, there was a great miscarriage of justice.
“The Supreme Court spared no words; they used legal and judicial koboko (cane) to flog the Court of Appeal for what they termed miscarriage of justice; perverse judgments. In many of the cases, particularly the Plateau State, two senators’ positions were reversed, three House of Representatives were reversed, and 11 House of Assembly were reversed. If all these cases had gone to the Supreme Court, all of them would have their seats retained. On what grounds were they reversed? The Court of Appeal surprisingly was saying the PDP had no structure in Plateau state. When did PDP structure, membership of a political party, nomination, congresses, and primaries become part and parcel of matters that the court can have jurisdiction?” he said.
Ozekhome added that “the Supreme Court said not even the election tribunal has jurisdiction, let alone the court of appeal. And they voided the decision of the governorship. They would also have voided the decision on the two senatorial candidates, three Houses of Representatives, and the 11 House of Assembly. Injustice has been done to them. What is the remedy now? That is why I am going to review my stance with all respect, humility as a constitutional lawyer, to say that, yes, these cases should go to the Supreme Court as a final court of the land. We saw grave injustice; people voted for by the electorates were removed by the Court of Appeal, which has no jurisdiction over the matter. I am sad about it and it should never happen again,” he said.
Baiyeshea urged relevant stakeholders to work on ways of altering existing laws, particularly the Constitution to prevent such unfortunate occurrence. He said: “I hope the National Assembly and other stakeholders in law making will do something to amend the Constitution and other laws to remedy this anomaly against the future because we cannot and must not continue like this. Our legal system should not, at our present state of development, present citizens with such helpless situation where there is no remedy for such a brutal wrong done to its citizens. This is why those who have the privilege of presiding over the affairs of others to determine their fate should be very careful not to abuse such privilege,” Baiyeshea said.
Kehinde advocated punishment for erring judicial officers involved in such brazen act of abuse of judicial powers. He noted that if it was in other clime, like the United Kingdom, the justices involved would have been penalised for deliberately ignoring earlier decisions of the Supreme Court on the issues raised in the Plateau cases. Kehinde urged lawyers, particularly the Senior Advocates, to realise that it is not every case that must be taken to court. “We have to be sincere to our clients and tell them the whole truth that a particular case will not fly,” he said, adding that lawyers should avoid cases that could ridicule them and subject the whole system of justice to disrepute.
According to Falola, “to address the several complaints against the decisions of the Court of Appeal in respect of the appeals in legislative matters in Plateau State, the option open to our legislature is to amend the Constitution and make the Supreme Court final court in appeals in legislative matters. Doing so will give the Supreme Court the opportunity to address the perceived perverseness of most of the decisions of the appellate court in deserving cases,” Falola said.