By Ise-Oluwa Ige

In this piece, Ise-Oluwa Ige examines the background facts of the lawsuit filed by Mr. Bashir Sheriff Machina at the Damaturu Division of the Federal High Court to challenge the decision by the All Progressives Congress, APC to forward the name of a presidential aspirant, Dr Ahmad Ibrahim Lawan to INEC as its candidate for the February 25, 2023 Yobe North Senatorial election when he never participated in the party’s primary poll, reviews lawyers’ views on the law applicable to the facts of the case and the logic in the majority decision entered by the apex bench and argues that the Supreme Court decision in the instant case not only stood logic on its head but also portrays the apex bench as a court under amnesia for elevating technicalities over substantive justice in the instant case as against its 2007 precedent in Amaechi vs Omehia’s pre-election case.

Introduction

By a split judgment of three to two, a five-member panel of the Supreme Court of Nigeria on February 6, 2023, declared the incumbent Senate President, Ahmad Ibrahim Lawan as the senatorial candidate of the ruling APC for Yobe North in the upcoming February 25 senatorial election in the country.

That was after the court quashed the concurrent judgments of both the Damaturu Federal High Court and the Abuja Court of Appeal which had earlier confirmed Bashir Sheriff Machina as the candidate of the APC for the Yobe North Senatorial poll.

Yobe North is one of the three senatorial districts in Yobe State, comprising Bade Local Government Area, Jakusko Local Government Area, Karasuwa Local Government Area, Machina Local Government Area, Nguru Local Government Area and Yusufari Local Government Area.

The two other senatorial zones in the state are Yobe South and Yobe East.

The apex bench, in its majority decision delivered in the case by Justice Centus Chima Nweze, held that it found it difficult to uphold the concurrent judgments of the lower courts which declared Machina as the flag bearer of APC for the senatorial election because he wrongly approached the Federal High Court by an originating summon instead of commencing the suit by writ of summons.

The court further explained that the lawsuit filed by Machina was laced with grievous allegations of fraud against both the APC and Lawan which cannot be resolved by originating summon but by writ of summons.

Vanguard reports that a civil action before a higher court (High court, Federal High Court or National Industrial Court) is commenced by either a writ of summons where the dispute is contentious, or by an originating summons where the dispute is non-contentious, or by an originating application depending on the nature of the dispute.

It is trite that where a party in a case inappropriately commences a contentious lawsuit by way of originating summons, the trial judge can suo motu convert the originating process to writ of summons to enable the court do justice in the case instead of delivering mere judgment devoid of justice.

Vanguard, however, reports that Machina knew that the best method of approaching the court in his case was by way of writ of summons but had to sue by originating summons because a Practice Direction by the Chief Judge of the Federal High Court in July 2022 required that.

Machina stated the fact before the Supreme Court and had added that if he had failed to comply, the trial court would have declined his case.

But in the majority decision of the Supreme Court, Justice Nweze insisted that given the contentious nature of the case filed by Machina which bordered on allegations of fraud against the APC and Lawan and which required calling of witnesses to prove same, it was inappropriate for his case to be commenced by originating summons meant for non-contentious issues of facts and law.

Two other justices on the five-member panel of the court concurred with the leading judgment of Justice Nweze.

However, Justices Adamu Jauro and Emmanuel Akomaye Agim, disagreed with the majority judgment and wrote a dissent.

In their dissent verdict, they held that given the totality of the facts before the court, both the Federal High Court and the Court of Appeal were correct in their findings in declaring Machina as APC’s Senatorial candidate for Yobe North.

The two Justices held that Machina was lawfully nominated because the primary election of May 28, 2022, which produced him was lawfully conducted in line with the provisions of the law.

Justices Jauro and Agim insisted that APC conducted an unlawful primary election because the May 28 primary election was not cancelled before that of June 9, 2022, that purportedly produced Lawan, describing it as illegal, unlawful and a breach of section 285 of the 1999 Constitution.

Besides, they held that Lawan had in an undisputed letter to APC voluntarily withdrew his participation in the primary election for the presidential election.

They contended that INEC was specific that it witnessed the May 28 primary election that produced Machina but did not witness that of June 9, 2022 because there was no notification from APC to that effect.

They therefore dismissed the appeal by the APC for being incompetent and unmeritorious.

It was, therefore, not surprising that Machina’s case which itself split the five-member panel of the Supreme Court, also divided the polity into two opposing camps, one applauding the majority decision of the apex bench and the other hailing the minority verdict.

Facts of the case

Senate President, Ahmad Lawan has been in the National Assembly as a federal lawmaker for 23 unbroken years.

He is at liberty to re-contest the upcoming senatorial election but for whatever reason, Senator Ahmad Lawan, sometime last year, decided to give a shot at the country’s number one seat—the Presidency.

He bought the Presidential Nomination and the Expression of Interest forms.

Lawan’s purchase of the presidential nomination form automatically followed that he had no further interest in keeping his senatorial seat.

Bashir Machina, who himself, is not a neophyte in politics, had eyed the Yobe North Senatorial seat occupied by Lawan, seized the opportunity and aspired for Lawan’s seat.

Amid the pre-primary tension, the National Chairman of APC, Abdullahi Adamu, had announced Lawan as the consensus presidential candidate for the party.

But 13 APC governors from the Northern region pulled the rug from his feet, by declaring their support for a southern aspirant to fly the APC ticket.

The former Lagos State Governor, Bola Tinubu, eventually won at the primary, polling 1,271 votes to defeat 13 others in the race, including Lawan who came distant fourth with a lean 152 votes.

Unsure of clinching the APC presidential ticket, Lawan had to equally purchase the senatorial nomination form.

Amid horse-trading for the presidential ticket, the APC senatorial primary was conducted with Machina winning the ticket for Yobe North on May 8, 2022

In the primary, Machina, who was the sole candidate, got 289 votes.

But moments after losing out in the APC presidential primary election in June, Mr Lawan, sought to return to the upper legislative chamber in 2023.

Unfortunately, Mr Lawan did not participate in the original APC Yobe North primary held on May 28, 2022, because he was contesting to be the party’s presidential candidate.

Nevertheless, by a high-wire political gymnastics, the APC claimed that Mr. Danjuma Manga, the party’s official that chaired and officiated the 28th May primary election which produced Machina as Yobe North Senatorial candidate, was not authorised to do so by the party’s National Working Committee, NWC.

The party consequently conducted a fresh primary on June 9, 2022, without informing INEC of its decision to so do or inviting it to monitor the fresh primary poll.

Vanguard reports that the election held less than 24 hours after Lawan lost his presidential bid on June 8, 2022.

Unfortunately, despite intense pressure on him to relinquish the ticket, Machina insisted he would not step down for Lawan as the APC Senatorial candidate for Yobe North.

“As far as I’m concerned, I contested for the Yobe North Senatorial ticket and I won the election,” the candidate said.

“I was confirmed elected because there were other contestants but I was the one that was qualified. I happened to be unopposed.

“I am still the candidate; I have not withdrawn and I will not withdraw for anybody. I am being approached by some persons but I will not withdraw, Insha Allah.”

However, rather than submit the name of the elected candidate, Machina, the ruling APC submitted the name of the Senate president to the INEC, a move that led to the deliberate omission of their names from the published particulars of candidates late June 2022.

To clarify the brewing controversy around the seat, INEC, on at least two different occasions, said it rejected the Senate president’s name because he had not been validly nominated for the Senatorial seat, and urged the duo to resolve their issues internally or seek redress in court.

Since Machina refused to kowtow to Lawan, the battle for the Yobe North Senatorial ticket moved to the law court.

Machina goes to Court

That was why sometime in June, 2022, Machina invoked the original jurisdiction of the Federal High Court, Damaturu for a judicial relief declaring him as the authentic Yobe North Senatorial candidate.

He had sued the APC, the Independent National Electoral Commission, and Ahmad Lawan whom the ruling party wanted to use to supplant him.

Machina, therefore, specifically asked the court to declare him as the authentic senatorial candidate of the APC for the 2023 election.

He invited the court to hold that the May 28, 2022 primary election that produced him was the only legitimate and valid primary election while the parallel one held on June 9, 2022 that produced Lawan was fraudulent and therefore null and void.

In defence of the suit, APC came to court to claim that Machina was not its candidate for the Yobe North Senatorial seat.

It argued that the May 28, 2022 primary election for the Yobe North seat which Machina won was invalid on the account that Danjuma Manga, the party’s official that chaired and officiated the 28th May primary election, was not authorised to do so by the party’s National Working Committee, NWC.

The trial court, after hearing out parties in the matter, upheld Machina’s prayer as it held that the purported primary election held on 9 June, 2022 for the Yobe North Senatorial seat was not monitored by INEC and therefore invalid.

The case was decided on September 28, 2022 by the presiding judge, Justice Fadimatu Murtala.

The verdict, however, aggrieved the APC which filed an appeal at the Abuja Division of the Court of Appeal.

APC had approached the appellate court seeking to set aside the judgment of the lower court, insisting Ahmad Lawan, Nigeria’s Senate President, was the authentic Senatorial candidate for Yobe North in the upcoming election.

Because of the nature of the case and the urgency it desired, the case was heard and decided by the intermediate appellate court within two months.

Specifically, the Abuja Division of the Court of Appeal on November 28, 2022 upheld the judgement of the trial Federal High Court.

The three-member panel of the Court of Appeal in Abuja led by Monica Dongban-Mensem, who is the president of the court, held that the appeal by APC was an abuse of court process.

“The 1st respondent (Machina) remains the Appellant (APC’s) candidate for Yobe North Senatorial District,” Mrs Dongban-Mensem said.

She said: “The lower court was right when it held that the purported primary election held on 9 June was not monitored by INEC,” even as the panel condemned the conduct of parallel primaries by political parties.

Citing Section 84 (1) of the Electoral Act, Mrs Dongban-Mensem said: “The law is designed to check political parties’ act of impunity in the conduct of parallel primaries.

“I find that the lower court properly evaluated all the issues raised before it. Therefore, all the issues are resolved against the appellant,” Mrs Dongban-Mensem said.

The appellate court however, awarded N1 million against the APC in favour of Mr. Machina.

But the APC further took the case to the Supreme Court which annulled, on February 6, 2023, the concurrent decisions of the lower court and declared Lawan as APC’s candidate for the Yobe North Senatorial seat on the technical ground that Machina commenced his lawsuit at the Federal High Court by way of originating summons rather than by way of writ of summons.

Justice Nweze, who delivered the majority judgment of the Supreme Court, held that hostile issues were involved in Machina’s matter that could not be resolved through originating summons.

Reactions to

judgment

The verdict of the court has triggered a lot of reactions from stakeholders who had painstakingly followed the case from inception till the final decision was handed down by the Supreme Court on February 6, 2023.

Majority of the stakeholders felt that the decision stood logic on its head while others felt it was in order.

For instance, a Nigerian-American Professor of Journalism, Farooq Kperogi who disagreed with the ratio decidendi (reasons for judgment) of the apex court decision had harsh words for the Supreme Court for deciding the case the way it did.

S’Court, a rotten gaggle of useless, purchasable judicial bandits—Prof Kperogi

“I was awoken on this side of the world by news of the reversal by the Nigerian Supreme Court of Senate President Ahmed Lawan’s primary election loss.

“I was already mentally prepared for it after the same Supreme Court affirmed Godswill Akpabio’s fraudulent primary win a few days ago. It’s a well-planned judicial choreography.

“The Nigerian Supreme Court is straight-up the most hopeless Supreme Court in the history of the world’s supreme courts.

“The same Court violated common sense and the will of voters and gave us a “Supreme Court governor” in Imo State who never even pretended to have won an election.

Now it has given Yobe and Akwa Ibom states “Supreme Court Senate candidates” in Lawan and Akpabio. Lawan was too busy trying to be APC’s presidential candidate to even participate in the Senate primaries in Yobe and unsuccessfully begged Machina to stand down for him, but the Supreme Court just declared him the winner of a contest he didn’t participate in anyway.

“It’s a blatant case of justice for sale. Nigeria’s Supreme Court is, without a doubt, a rotten gaggle of useless, purchasable judicial bandits. The highest bidder gets their judgement.

“And they’re not even hiding this. Against the judicial oaths they swore, they openly cavort with politicians whose cases they sit in judgement over. They are greedy, grasping, unprincipled curmudgeons who need money, and anybody who gives them the most money gets the most favourable judgement.

“I think it is Akpabio who popularized the saying that whatever money cannot do in Nigeria more money can do it. He knows Nigeria really well.

S’Court on Yobe North senatorial seat surprised me—Ozekhome, SAN

Although he was temperate in his choice of words to reject the Supreme Court verdict, a renowned constitutional lawyer and stout defender of the judiciary institution, Prof. Mike Ozekhome, SAN, said the judgement surprised him.

“Electoral Act is clear. Look at sections 83 and 84. If a candidate dies for example, the political party can bring forward another candidate for them to hold fresh primary elections. The same way, a candidate may decide to resign. All that a political party can do is to hold another primary. Coming to this case between Machina and Lawan, Lawan contested for presidency in the primaries of the APC. He did not win. If Machina had withdrawn voluntarily under Section 33 of the Electoral Act, then a fresh primary will be held within 14 days. But the facts that are in public domain is that barely a day after the presidential primary of the APC in Abuja, Machina who had already won was said not to be the candidate of the party, but it was now the senate president, Ahmad Lawan.

“The question is: when did APC give notice to INEC that they would be going to another primary? Did Machina himself who was already elected say he had withdrawn? You cannot have two Obas in one palace.”

S’Court judgment on Lawan’s case stands logic on its head—Prof Odinkalu

Reacting to the judgment, Odinkalu said, “What judges cannot do does not exist: they can make the 4th to come 1st. And those who withdrew from a primary to become winners. There is breakfast everywhere.

“Let me put it this way. There are some judgments that should no longer be dignified with a lot of long grammar. How does a court, Supreme no less, decide this matter on the basis of form of action?

“Something interesting is happening in Nigeria’s Supreme Court: When the Court awarded victory to the 4th in Imo State, Justice Nweze from Enugu, who knew the fallouts, dissented. Now the court has made an absentee candidate in Yobe, Justice Jauro from neighbouring Taraba dissents.

“A senior Nigerian lawyer called me tonight to lament that he felt trapped in a “scene of profound judicial hooliganism”. His turn of phrase captured the situation in cold relief. Sadly, I was unable to provide him with much comfort. Judges have burglarized election season.”

Odinkalu had wondered whether Justice Ariwoola-led Supreme Court was under amnesia to have quickly forgotten what the same apex court did in 2007 when in a judgment of unprecedented audacity, it sacked Omehia, affirming Amaechi as the winner in which he did not campaign on the account that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities which (technicalities) Supreme Court on February 6, 2023, elevated over substantive justice in the Machina case.

and by virtue of the provisions of Section 115(d) of the Electoral Act, Dr. Ahmad Lawan, could not, by any stretch of imagination be made a senatorial candidate of the APC without going through the primary, except by judicial abracadabra.

It is also not in doubt that cases are not decided by court simply by looking at mere facts presented by parties before it but also by applicable laws, however, the instant case of Machina appears to be sui generis in the sense that the Federal High Court practice direction rolled out by its Chief Judge mandated all aggrieved plaintiffs in pre-election suit to approach the court for redress by way of originating summons regardless of whether the case is contentious or not which Machina did. One would think that the majority decision of the Supreme Court would take judicial notice of the peculiar circumstance surrounding the case to dispense justice rather than hiding under narrow technicalism to deliver judgment in the matter.

Finally, it would appear apposite that the Supreme Court, in this case, ought to have guided itself by its precedent in the Amaechi V Celestine Omehia’s case when it pronounced that “judgments of this court must not be final only in name, but must be seen to be really final in the sense that they have legal bite that makes the judgments truly conclusive. All issues that will make its judgments reasonable and conclusive must be clearly addressed by the Supreme Court. This court has a standing and rigid invitation to do substantial justice to all matters brought before it. Justice to be dispensed by this court must not be allowed to be inhibited by any paraphernalia of technicalities.”