Time to Tackle Judicial Impertinence
Posted: 02/Jan/2018

As the election year draws near, Davidson Iriekpen calls on the Chief Justice of Nigeria, Walter Onnoghen to come up with new rules that will guide judges handling election-related matters

An aspirant of the Peoples Democratic Party (PDP) for the Anambra Central senatorial district in 2014, Dr. Obiora Okonkwo, last week returned to the Federal High Court in Abuja, seeking to stop the Independent National Electoral Commission (INEC) from conducting the rerun for the district scheduled for January 13, 2018. He is also praying the court to sentence the Chairman of INEC, Prof. Mahmoud Yakubu, to jail for his alleged refusal to obey its order.

Recall that John Tsoho of the same court had recently added a new dimension to the protracted legal tussle for Anambra Central senatorial seat when he, in a judgment he delivered in a pre-election case filed in 2015 by Okonkwo against the PDP and three others, held that the plaintiff was validly nominated by the PDP in its primary election of December 2014 for the senatorial district. The judge ordered the Senate President to immediately inaugurate Okonkwo to fill the vacant seat. He consequently, ordered that the Certificate of Return earlier issued to Uche Ekwunife be withdrawn and that a fresh one be issued to the plaintiff by INEC, a decision INEC is yet to comply with.
The Anambra Central Senatorial seat has been vacant since the nullification of Ekwenife’s election by the Court of Appeal in Enugu in an election dispute on December 7, 2015. The court voided her election on the grounds that she was not “the product of a valid primary and was therefore not duly and legitimately nominated.” The court consequently nullified the election and ordered for a fresh election by INEC. It also excluded the PDP from participating in the rerun election.

The PDP rejected the decision of the appellate tribunal. First, Ekwunife went to the Supreme Court to seek a review of the Appeal Court’s judgment, but the apex court turned down her request, insisting that the Court of Appeal was the final court for all senatorial election disputes.

Soon after the apex court’s decision, the party, hoping to substitute Ekwunife with Peter Obi, filed a suit before Justice Anwuli Chikere of the Federal High Court in Abuja. Rather than tow the path of both the Court of Appeal and the Supreme Court which had decided and rested the case, in what many analysts had considered as a gross abuse of the doctrine of stare decisis, the judge not only entertained the suit, but ordered INEC to include PDP in the rerun election.

This development angered the All Progressives Grand Alliance (APGA) and its candidate, Chief Victor Umeh, who swiftly filed an appeal at the Court of Appeal in Abuja. More annoying was the fact that the same Justice Chikere had in four separate judgments in similar cases in Kogi State, upheld the disqualifications of the All Progressives Congress (APC) candidates in elections in the state.

But in her judgment, Justice Tinuade Akomolafe Wilson who led a three-man panel of the Appeal Court, dismissed PDP’s preliminary objections challenging APGA and Umeh’s locus standi and the court’s jurisdiction to entertain the suit. She went further to uphold the earlier decision of the Court of Appeal banning PDP from participating in the rerun election and ordered that a re-run election be conducted in the senatorial district within 90 days.

In determining the main substance of the appeal, the appellate court relied on the judgment of the Supreme Court. It held: “The rationale therefore, is correct as submitted by the appellants that the principle of guiding who can participate in a court ordered re-run election following the nullification of general election has been established in Labour Party Vs. INEC, and it remains the law.

“Where a court nullifies an election and orders a fresh election, a political party which participated in the annulled election at whose instance the election was nullified cannot field a new candidate to contest in the fresh election. This is because the fresh election does not entail an entirely new process; rather it takes the place of the annulled election, because the period of nomination of candidates has lapsed.”

This is why many observers considered Justice Tsoho’s judgment not only as an abuse of the doctrine of stare decisis, but the height of judicial impertinence which they believe the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, must urgently and seriously tackle as the country gradually moves into the build up to the 2019 general election.

To confirm the decision of the appellate tribunal which held that Ekwunife was not a product of a valid primary and therefore not duly and legitimately nominated, Senator Annie Okonwko who is in another faction of the party is still in court challenging her recognition as the candidate of the party in 2014 by INEC. Recently, he issued a statement faulting Justice Tsoho’s judgment, saying it was a miscarriage of justice.

Even recently, an Abuja High Court held that the PDP faction which nominated Ekwunife did not hold primary election, leaving everybody to wonder how Obiora Okonkwo emerged as the candidate of the party.

Is Justice Tsoho not aware that the same primary election he ruled that Obiora Okonkwo won, another high court in Abuja had asked the PDP headquarters to refund the expression of interest fee and amount paid by an aspirant for the nomination form purchased because the party failed to organise primary election? Many analysts are worried that if a court had ruled that the party did not organise primary in Anambra Central, on what basis did Justice Tsoho hold that Okonkwo won the primary?

One elementary rule of Nigeria’s judiciary is that decisions of superior courts are binding on all persons and authorities including all courts with subordinate jurisdiction. But many analysts are worried over the disturbing development in the justice sector where some courts particularly the high courts subvert the principle of stare decisis, one of the most sacred pillars in the administration of justice.

On a number of occasions in recent past, superior courts have had to openly lambast lower courts for refusing to treat matters with the seriousness they deserve. They have also come down heavily on lower courts delivering contradictory judgments on matters that are similar in law and in fact.

A survey recently conducted by THISDAY revealed that in the last two years, many Nigerians are not satisfied with the way the courts have handled cases pertaining to elections. They wonder if the court is serving other ends than ensuring that litigants obtain justice. Legal pundits who spoke with THISDAY expressed apprehension over the effect of this on the development of law and on the overall well-being of the society.

When a superior court has determined a case, lower courts are barred from reopening the cases. But any more. Some cases which had been handled by superior courts, especially on election matters, find their way back to lower courts, leaving many observers wondering whether these courts are serving other interests than ensuring that litigants obtain justice.

So bad has the situation become that INEC recently accused the courts of aiding electoral impunity in the country by refusing to follow the principles laid down by the Supreme Court. In a position paper it submitted to the CJN, INEC said the judiciary was in the habit of helping politicians to act with impunity and subvert the electoral process.

It also accused the courts especially the Court of Appeal and the various high courts of deliberately subverting the democratic system by refusing to follow and apply precedent already set by the Supreme Court. It stated that apart from their refusal to apply the authorities already established by the apex court when deciding cases of similar facts, some judges deliberately give orders that were unclear.

In the position paper, INEC said: “Where political parties and their candidates are aware of the consequence of non-compliance with any electoral procedure, they will do well to avoid such certain consequence. It is however observed that if the consequence of non-compliance with electoral procedures are subject of conflicting judicial pronouncements, neither the judiciary nor the election management body will be spared of impunity by political actors.

Failure of the courts to adhere to the doctrine of stare decisis in the determination of election related cases lead to loss of public confidence in the judiciary and consequential loss of confidence in the electoral process. Such cases have confused stakeholders as they created uncertainty in the body of the law by introducing elements of arbitrariness.

“Endless litigation resulting from unclear and ambiguous decisions/orders. Where judgments are delivered without the court making clear orders or consequential orders, interested parties can leverage on the lacunae to make the judgments ineffectual. This, in some cases have created misapprehension and mischief in the polity in terms of enforcement.”

It is against this background that INEC asked that its role in the nomination process be strengthened. It therefore asks that: “A variant of the provision in Section 87(9) of the Electoral Act (before amendment) should be re-introduced, thus: – ‘where a political party fails to comply with the provision of the Constitution or this Act in the conduct of the primaries or nomination of any candidate for any election under this act, its candidate shall not be included in the list of nominated candidates for the election.’ This is because INEC is constrained to accept the list submitted by political parties having regard to the proviso to Section 31 of the Electoral Act.”

According to the commission, conflicting decisions in election matters can be categorised into: the circumstances where the courts failed to be bound by decisions of superior courts or their own decisions on similar facts; and circumstances where courts of co-ordinate jurisdiction give conflicting decisions/orders on similar set of facts. It stated: “Either of these pose significant problems to the electoral process. Where the courts depart from precedence, it creates uncertainty as to the state of the law and consequence of particular conduct. Where courts of coordinate jurisdiction give conflicting decisions/ orders, it can lead to disobedience of court orders, cause confusion in the polity and to the election management body.”

This is why many analysts are urging Justice Tsoho to totally hands off the case in order not to further put the judiciary in disrepute. They also urged INEC to ignore the clamour not to conduct election in the central senatorial district come January 13.

INEC said the judiciary was in the habit of helping politicians to act with impunity and subvert the electoral process.
This Day