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On the 4th day of August, 2016, in the hallowed wombs of the Court of Appeal, sitting in Abuja, their Lordships delivered judgment in the election appeal arising from the Petition filed at the trial Tribunal by the trio of Captain Idris Wada, Architect Yomi Awoniyi and the Peoples Democratic Party, PDP, against the return and declaration of Alhaji Yahaya Bello as the duly elected Governor of Kogi State.
It is no longer news that the majority of their Lordships (Hon. Jummai H. Sankey, JCA; Hon. Mojeed A. Owoade, JCA and Hon. Ita G. Mbaba, JCA) affirmed the decision of the trial Tribunal and dismissed the said appeal. It is however noteworthy that their Lordships Hon. Obande Ogbuinya, JCA and Hon. Tijani Abubakar, JCA dissented and gave a dissenting opinion. The dissenting opinion of the said jurists may ordinarily be overlooked but then, a quick glimpse into yesterday will reveal that the said Hon. Obande Ogbuinya (then of the High Court) in association with Hon. Justice A. Adebara were the duo who dissented against the judgment of the trial Tribunal in Dr. Kayode Fayemi’s Petition against Engr. Segun Oni. The rest is history, as the appellate Court returned Dr. Kayode Fayemi as being the duly elected Governor of Ekiti State. This amongst others makes it desirable to assess the recent dissenting judgment by sieving it through a plethora of judicial precedents.
A quick, albeit brief understanding of how the law views a dissenting judgment has an immediate appeal to this writer. Generally, a dissenting judgment is an expression of disagreement with the lead judgment. According to my Lord, Chima C. Nweze (now JSC in P.I.P. Ltd v. Trade Bank (2009) 13 NWLR (Pt. 1159)577 @ 626, Paras.B-D)), a dissenting judgment is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a latter decision may possibly correct the error into which the dissenting opinion believes the court to have been betrayed”. A dissenting judgment thus believed an error has been made by the majority and that the Court has betrayed the cause of justice. The Judge who delivers a dissenting judgment thus appeals to a future date when the said error will be corrected. This presupposes that an appeal will be filed against the decision of the majority. The future date may however wait till when another matter with similar facts comes up before the same Court for adjudication wherein the Court will be prayed to depart from its future decision.
From the foregoing, it is easy to conclude that a dissenting judgment, however articulate, learned and powerful is not the decision of the Court and therefore not binding. The only binding judgment of the Court is that of the majority. As such, the binding judgment of the Court of Appeal in the election appeal filed by Captain Wada and Co. is that delivered by the majority, per Owoade, JCA. It is however, instructive to note that the Supreme Court may however make reference to and agree with a settled principle of law, or a sound reasoning and conclusion contained in dissenting judgment. This necessitates a brief insight into the dissenting Judgment, per Ogbuinya, JCA and examine whether same contains settled principles of law, sound reasoning and conclusion that may warrant a setting aside of the majority judgment per Owoade, JCA.
Before embarking on a voyage to discover whether the dissenting judgment was premised on settled principles of law, sound reasoning and conclusion, it is imperative to note that the majority decision (that is, the binding judgment of Court) was decided upon the issues formulated by the Appellant. Without seeking to bore you with too many details, permit me to recite the issues as formulated by the Appellant, that is, Captain Idris Wada. The said issues borders on whether Alhaji Yahaya Bello contested the election without nominating an associate to run with him as Deputy-Governor; Whether the trial Tribunal can rightfully hold that the All Progressive Congress rightfully replaced the late Prince Audu with Alhaji Yahaya Bello when the Trial Tribunal had agreed that there exists a lacuna in the law relating to replacement of a candidate who died in the course of an election; Whether the return of Alhaji Yahaya Bello was right in law, having not fully participated in all stages of the election; Whether the preliminary objections raised by the Alhaji Yahaya Bello, APC and INEC was rightly considered by the trial Tribunal; Whether the trial tribunal was wrong in its interpretation of alleged non-compliance with the provisions of the Electoral Act; Whether the trial Tribunal rightly dismissed Captain Wada’s Petition in view of overwhelming and unchallenged evidence.
A proper appreciation of the dissenting judgment, per Ogbuinya, JCA (particularly, at pages 6-7 thereof) will make it explicit that the dissenting Judgment was premised solely on issue 3 as formulated by Captain Wada and the All Progressive Congress. Not being the final Court on this electoral appeal, the negation of their dissenting Lordships to dissent to the remaining issues raises a supposition that they concurred with the majority decision on issues 1, 2, 4, 5 and 6. A little expose on the areas of concurrence will not be out of place.
Impliedly, their dissenting Lordships concurred with the majority that the issue of nomination of an associate to run with Alhaji Yahaya Bello as well as the issue of alleged wrongful substitution are not contemplated as issues of qualification and/or disqualification in the 1999 Constitution. Furthermore, their dissenting Lordships are taken to have concurred with the majority that Section 33 of the Electoral Act, 2010 (as amended) allowed the All Progressive Congress to substitute its candidate in the event that its initial candidate died. Their dissenting Lordships thus agreed that the late Prince Audu was rightly in statute substituted by the All Progressive Congress and the Independent Electoral Commission (INEC) with Alhaji Yahaya Bello.
The failure of their dissenting Lordships to dissent on other issues as formulated by the Appellant (Captain Wada) implies that their dissenting Lordships concurred with the decision of the Majority of the Court of Appeal that Captain Idris Ichalla Wada, Architect Yomi Awoniyi and the Peoples Democratic Party lack requisite locus standi to challenge the nomination, sponsorship of Alhaji Yahaya Bello by the All Progressive Congress as well as concurring that Captain Wada lacks locus standi to challenge the substitution of the demised Prince Abubakar Audu with Alhaji Yahaya Bello. Finally, their dissenting Lordships are in law deemed to have concurred with the majority Justices of the Court of Appeal that Captain Wada failed to prove alleged non-compliance with the provisions of the Constitution and the Electoral Act.
Premised on the foregoing, it thus appears that the dissenting judgment should not be celebrated as creating an opportunity for the Supreme Court to set aside the majority decision, per Owoade, JCA. I am further strengthened in this position as I will make effort to demonstrate below that the dissenting decision will fail the test of settled principles of law, sound reasoning and conclusion where relied upon strict sensu in a foreseeable appeal to the apex Court.
Section 141 of the Electoral Act, 2010 (as amended) relied upon in the dissenting judgment was a legislative intervention to checkmate the ‘perceived injustice’ alleged to have been perpetrated by the decision in Amaechi’s case wherein a candidate who did not market himself to the people vide election campaign was declared winner of election into the office of Governor of Rivers State. The law makers thus felt such a situation wherein a person who has not presented himself at all stages of an election should be barred from being declared as winner of the said election. In actual point of law, upon the enactment of Section 141 of the Electoral Act (supra), the decision of the Supreme Court in Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 had been set aside by the National Assembly (C.P.C. v. Ombugadu (2013) 18 NWLR (Pt. 1385)66 @ 119).
It is instructive to note that in Ombugadu’s case in 2013, the apex Court held that its decision in Amaechi’s case has been set aside upon enactment of Section 144 Electoral Act. However, in Agbaje v. INEC (2016) 4 NWLR (Pt. 1501)151 @ 168, the same apex Court affirmed the decision in Amaechi’s case. Agbaje’s case represents the current position of the law on the said issue. One may thus be tempted to state that upon the demise of Prince Audu, the vote shifted to whoever the party’s candidate was at the said election since the votes casted on 21/11/2015 belongs to the political party, that is, All Progressive Congress. It is thus clear that the operation of Section 141 Electoral Act is not yet a settled principle of law. In the expected appeal to the Supreme Court, it is expected that Counsel on both sides of the divide will call on the Supreme Court to determine the constitutionality or otherwise of Section 141 Electoral Act, 2010.
It is the opinion of this writer that Section 141 of the Electoral Act is inconsistent with provisions of the Constitution. For instance, where a Governor-Elect is appointed into the office of Vice-President prior to taking the office of Governor as it happened in Atiku’s case (PDP v. INEC) can it be said that in view of Section 141 Electoral Act, the Deputy-Governor elect cannot move in to take up the position? Putting it more aptly, where a person has been returned as Governor-Elect and he dies prior to taking the oath of office, can it be the trite constitutional position that the person returned as Deputy-Governor elect cannot move into that office in view of the fact that he did not participate in all stages of the election, particularly primaries as envisaged by Section 141 Electoral Act, it does appears to this writer that Section 141 of the Electoral Act is inconsistent with Section 181(1) of the 1999 Constitution and should to the extent of such inconsistency be declared null and void.
It is trite law that in interpretation of statutes, the Electoral Act, 2010 (as amended) inclusive, the whole Statute should be taken into consideration. It thus follows that in a judicious construction of the provisions of Section 141 of the Electoral Act, 2010, the apex Court must be urged to embark upon a community interpretation of Sections 33, 36, 69 and 141 of the Electoral Act. Section 33 thereof allows a political party to substitute its candidate in the event of death, Section 36 relates to where the death of candidate occurs prior to commencement of polls. Section 69 contemplates a situation whereby votes are cast for candidates. Section 141 contemplates that the votes recorded must be for a candidate who had participated in all stages of the election. It may thus appear that the blanket permit issued to any party to substitute a dead candidate is conflicting with Section 141 which forbids declaration of a person who has not participated in all stages of the election as winner. This is much more so where the candidate dies after commencement of poll and the substituted candidate had not participated in the campaigns.
It is a necessary canon of statutory construction that the latter provision of a Statute takes into consideration the earlier provision. Applying this canon, it thus appear that in enacting Section 141 of the Electoral Act, the National Assembly took into consideration Section 33 thereof yet went ahead to bar persons who had not participated in all stages of the election from being declared as winner by the Tribunal or Court. It may thus not be out of place upon a community construction of sections 33, 36, 69 and 141 of the Electoral Act to hold that the applicable Electoral Act do not contemplate a situation where a Political Party will substitute its candidate after commencement of poll. This constitutes a lacuna in our electoral law and calls for legislative intervention. Where this interpretation is allowed, the dissenting judgment, per Ogbuinya, JCA may enjoy life and the apex Court may set aside the majority decision and order conduct of fresh election. This however is not yet a settled principle of law until same is brought before the apex Court for specific determination.
The Electoral Act did not define who a ‘Person’ is. A ‘Person’ in law will however include persons natural and persons artificial such as incorporated entities and Trustees. Applying this to Section 141 in issue will yield an interpretation to the effect that what the law maker did contemplates includes the fact that the political party is a person who participated in political campaign. To call this absurd is to negate the provisions of Section 221 of the 1999 Constitution. In the face of the said section 221, it is only political parties that canvass for vote for any candidate. The Constitution does not contemplate a situation where the candidate canvasses for votes for himself. Where we are all agreed that the process of campaign is included in “all stages of the election” and the only person who does campaign in law in Nigeria is the political party for its candidate then a judicious community construction of Section 221 of the 1999 Constitution and Section 141 of the Electoral Act must not be held to bar a candidate from being declared winner if his political party canvassed for votes at the election in issue. That being the case, the dissenting judgment, per Ogbuinya, JCA will not avail the trio of Wada, Awoniyi and the Peoples Democratic Party.
It is thus the position of the present writer that the dissenting judgment, per Ogbuinya, JCA is not premised upon settled principles of law, sound reasoning and conclusion. It will not, in my opinion operate alone to persuade their Lordships of the apex Court to set aside the decision of the majority. What is more, the majority of their Lordships of the Court of Appeal had held that Captain Wada and crew lacks locus standi to challenge the substitution which brought in Alhaji Yahaya Bello and their dissenting Lordships are in law deemed to have concurred with this decision.
Having said this much, without seeking to bore you with further details as we (with baited breath) await the legal fireworks at the Supreme Court, I must yet conclude that the majority decision per Owoade, JCA affirmed the decision of the trial Tribunal. In law, this is referred to as concurrent decisions of the two lower Courts. The settled position of law in this regard is that the Supreme Court will not necessarily interfere with concurrent decisions of two lower Courts except where the Appellant establishes miscarriage of justice or violation of known principles of law or procedure or where the concurrent decisions are perverse (Akeredolu v. Mimiko (2014) 1 NWLR (Pt. 1388)402 @ 466). Premised on this, it thus becomes clear that the dissenting judgment is not enough to set aside the majority decision. The decision of the majority which concurred with the decision of the trial Tribunal will only be set aside where there is manifest miscarriage of justice.
Can it then be said that the concurrent decisions of the trial Tribunal and Court of Appeal has occasioned miscarriage of justice to Captain Wada and the crew? While we leave this to their Lordships of the Supreme Court to decide if and where the appeal comes before them, I can only muse that where it is held that the votes belong to a Political Party, can the decision of the trial Tribunal and Court of Appeal be said to have occasioned miscarriage of justice to Peoples Democratic Party which scored 199,514 votes when compared with 240,867 votes scored by the All Progressives Congress on 21/11/2015. I am not sure that any miscarriage of justice has been done to the Peoples Democratic Party which also scored 5,383 votes on 5/12/2015 compared with the All Progressives Congress which scored 6,885 votes. I think the primary concern in the conduct of an election is the decision of the people. The interest of justice in determining whether the two lower Court have occasioned any miscarriage of justice, In my opinion, should be premised on the fact on both 21/11/2015 and 5/12/2015, the good people of Kogi State rejected the Peoples Democratic Party and its candidates. Until, the Captain and its crew satisfies the requirement of law that the said elections were marred with irregularities and that its mandate was in actual point of fact and law stolen, I hold the believe that the two lower Court have not occasioned any miscarriage of justice to Captain Wada and his crew!
Finally, Finally, the dissenting opinion, per Ogbuinya, JCA is not a cause for celebration.
– Lawyers for Change Initiative
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