Supreme Court saved Kano, Plateau, Zamfara from boiling – Etiaba, SAN

From Jude Owuamanam, Jos

The Supreme Court might have settled the pending case in Plateau but the conversation around the national assembly and state assembly members that were sacked by the appellate court decisions have raised questions on the judiciary. A panel of the justices of the Court of Appeal led by Justice Elfrieda Williams-Dawodu had in a unanimous judgment delivered on November 7, 2023 ruled that Governor Caleb Mutfwang was not validly nominated by the Peoples Democratic Party(PDP) because the party had no structure in the state. The appellate court therefore nullified the election and declared the candidate of the All Progressives Congress APC, Dr. Nentawe Yilwatda Goshwe, as the governor of the state.

Emeka Etiaba ( (SAN), lead counsel to Governor Caleb Mutfwang in this interview with Arise TV x-rays the option open to the sacked lawmakers to obtain justice.

I will like to read two case law citations for you. The first law citation is on the jurisdiction of the Supreme Court over pre-election matters. The issue of substitution of candidates in the Nigerian WeeklyLaw Report of 14th March 2011, Ucha Vs Onwe 2011, NWLR 359: Although an election matter shall be determined by the Court of Appeal, election matters, which are pre election matters terminate at the Appeal Court and Supreme Court has jurisdictions to make pronouncement on such matters. Let’s start with that case law I read with regards to how this debacle on Plateau be remedied. Have you tried taking a cursory look at that case law and do you want to speak more as regards how this can be remedied?

Thank you for the question. I will start by saying that I was the lead counsel for the PDP and not the governor himself, though we worked in tandem. We took the matter from the tribunal, to the Court of Appeal and right to the Supreme Court and sadly when the Court of Appeal overturned the very sound judgment of the tribunal, we had our worries. I personally in an interview immediately after that judgment did say that my heart bleeds for the national and state assembly members whose elections and successes have been terminated. In fact, I used the phrase that they met their untimely death at the Court of Appeal because of the provisions of Section 246 (3) of the Constitution of the Federal Republic of Nigeria, which puts a ceiling on the challenge of every return made with respect to state and national assembly elections at the Court of Appeal. That is what it is. But in the case of the governor, I did mention that he had an option and an opportunity to get it right at the Supreme Court and thank God for the Supreme Court justices who decided to do justice not just in the case of Plateau State but in all the judgments, eight judgments that they delivered on Friday. Justice was met fully. In thanking the justices, I must also thank the president of Nigeria, who has allowed rule of law and has refused or has been seen not to have meddled with the work of the Supreme Court justices. I also praised the Chief justice of Nigeria for allowing and encouraging his court to do justice. It takes all these people to make justice happen. I now go to your question as to the case of Ucha and Onweh and what becomes of the fate of the sacked national and state assembly lawmakers whose elections were unduly and wrongly erroneously upturned by the Court of Appeal. I must tell you that this is an issue we have been trying to brainstorm to find solutions to. Yes, a respected colleague of mine did commend the case of Ucha and Onweh as a solution. Incidentally, in that case in 2011, I was a counsel in that case. I represented the third and fourth respondents in that particular case. But that case, as much as it allows for that case to get to the Supreme Court if it’s a pre-election matter, it may not be a wonderful authority for where we find ourselves. A reason being that, yes the Supreme Court held that the case of the first and second respondents are predicated on pre election matters but again you know that Ucha and Onweh would only hold if a challenge of those judgments were brought within 60 days because at that time, there was no time limit for the challenge. Where we are now is that that judgment was delivered well over 60 days ago. So that window may have been shut for the lawmakers. But of course, it’s a good authority but the time limit is an issue. I must also tell you that we are thinking of options and we have not come up with options. We have not made up our minds. We will make up our minds and Nigerians and the court will hear. But as much as I personally think the Ucha and Onweh would not be a good authority to rely on because of the time lag. I believe other options are available and will look at them. You know, in looking at the options that are available, one also has to make sure that a line is drawn between bringing an application that would be an abuse of the court process and doing the right thing. So we are also looking at options that are there. There are options. And like I would always say, where there’s an injury, there must be some way to rectify it, to assuage it. We are thinking of that remedy.

Thinking of remedy to assuage and rectify what has termed the Appeal Court error of judgment, the PDP had come out to say that they are petitioning the NJC, which Mr. Owonikoko we had as a guest and a few guests had opined that it might not be the right line of action. Having been part of the counsel representing PDP, is this from the PDP and would that be one of the many lines of options that you would take not just because yes the NJC cannot overturn the judgment of the Appeal Court but also because or perhaps to check the judges or to petition the NJC with regards to the judges or justices who sat on the case. Would that be the reason why you’re taking this line of action?

I am not aware of any petition so you won’t put it to me to ask me whether that was the reason why we are taking the decision. I am not aware, I am not on it and my clients have not briefed me that they want to write a petition but if I understand what my brother Owonikoko (SAN) said, he was not against writing petition but if the petition is geared towards bringing the lawmakers back, it will be futile. The petition would only call to question the actions of the justices with a view to punishing them. It does not bring the legislators back to office. So to that extent, that’s his arguments and that’s very sound. A petition will not bring them back to office and so we are looking at options that could bring them back to office not the one they would be punitive/administrative. We are not ruling out the fact that they have a right even as the victims to petition. They have a right to petition. PDP has a right even if I as a counsel is not aware. My clients also reserve the right because they are the greatest victims. All their legislators were swept away. Not even one was left. In a case that was so straightforward. In a case that the justices were exposed to the authorities that we also cited at the Supreme Court and even at the tribunal. They just decided to do what they did and you know it’s actually very sad having followed this matter from the tribunal to the Court of Appeal and the Supreme Court. When we got to the Court of Appeal, we realised that a panel had been dedicated for Plateau State alone. That was against the policy of this Court of Appeal. For all the election appeals that came up, as the appeals were ripe, the president created panels and instructed the justices that will handle them. And they went and handled them. So it became strange to us that a single panel could be created to handle all the appeals from one state. I don’t think the court was charitable in that and that’s what had played out. The first judgment came, it was in error and then they continued along that line.

In one breadth, you said the joy of a democracy is not about having winners or losers but about having lawmakers that are democratically-elected. In the light of this and in the light of your experience, what are the lessons, how do we manage this delicate balance. Well, we know that 95 per cent of the elections in the 2023 election cycle ended up in court. So, how do we balance the mandates of democratically-elected officials and the intricacies of the democratic process. What lessons have you taken away from this experience?

The lessons to be taken away is that Nigeria as a democracy pays less attention to the electorate that elect people to represent them. So with what has happened, no matter how wonderfully well INEC conducts an election, there will always be a petition. And so there should be a way to sanction people who bring up frivolous petitions. There must be a way to do that. There must be a way to compel judges and justices to pay attention to settled authorities. The Supreme Court has settled authorities in every aspect of our electoral jurisprudence. The Court has set it out. All those cases are there. In the case of the Court of Appeal, they were all cited and they meant nothing. So number one is that we must find a way to make the votes of the people count. Number two is that we must get a way of getting the justices answer to their wrong doings because it’s a wrong doing that a lawyer cites a Supreme Court authority to a Court of Appeal justice and he ignores it and goes on his own tangent because he’s My Lord. That’s very wrong. You know that desperation to be in the House of Assembly, to be at the National Assembly, to be at the Presidency, to be a governor; that desperation actually is because politicians know that there’s a lot of money to make not in terms of contribution to nationhood. There’s a lot of money to be made. The other day we were talking about every national assembly member going home with a jeep that’s worth N165 million. Where do you get such money, where do you earn it? So everybody strives by hook or by crook to get in. Now again with the judgments that the Supreme Court is churning out, it’s now obvious to politicians that it’s not business as usual. That’s also a lesson that by the time you go to tribunal, you know that the courts will scrutinize what you’re coming in with. It’s not an issue of your lawyer being brilliant or knowing the judge. It’s not about you having a deep pocket like in Plateau State where one ruffian, an id..ot was seen boasting. I saw it in the video.

“When we get to the Supreme Court, they will know who we know and we will know who they know”. That man should be arrested. By now he should be in Kirikiri Prison. He’s not supposed to be in any civilization. These are people who pollute the system. They will say just announce me as the winner and they will know who we know and they will know who they know. The man is on the streets and he’s free. So we should begin to question the actions of every stakeholder. We should be able to sanction even lawyers who know the position of the law but will prefer to canvass the other way. They should also be called to question.

That lawmaker that you’re talking that he said they will know who we know and we know who they know was in fact very vociferous. I think after or leading up to the Appeal Court ruling of this case, he defended his position. He was triumphant but I would also like to get him on now to get his position after the Supreme Court had decided. But let me ask you about something. I know that it will be a tough one. In all of these you stated something very deep. That specifically on the panel for Plateau, the president of the Court of Appeal, Justice Monica Dongbam-Mensem, was seen and a justice was seen defending their ruling and these were the reactions when people were saying all sorts about the ruling of the Court of Appeal. But they went on a defence. Number one, what’s your reaction to that? There was a video to that regard and there was another video, I think, of another Justice in Nasarawa trying to defend the judgment. What’s your reaction?

My reaction is that it’s a bad testament for Nigeria. Even a law school student knows that when a matter is in court, it’s subjudice. Nobody is supposed to comment on it. So for a judge to deliver a judgment and go to the marketplace, I mean the law week of Adamawa lawyers, I can refer to it as a marketplace the way we speak and he goes there and begins to canvass in favour of a judgment that he delivered and which is before the Supreme Court. That shows you where we are, but I will not say more because you know my farm is the court. When we finish at Arise (TV), tomorrow I will appear before the Court of Appeal and the Supreme Court and the high court. Let me leave it at that but I can assure you that it’s a bad one.

That’s why I said it’s going to put you in a tough place. But another question I will like to ask is this level of injustice that goes on in the country within the judiciary; you said something earlier on, you said after citing all the cases, they chose to do what they did. Would you want to hazard why because we don’t have any proof against the justices, would you want to hazard whether it was an oversight or a deliberate act?

I know where you’re coming from but the truth is that those authorities were cited and they thought little about them. I don’t know what one can blame it to be. I don’t know but a justice of the Court of Appeal is tried and tested. A justice of the Court of Appeal who decides to overlook an authority does it willfully and I can assure you that they ignored those authorities willfully. You see, it’s a funny one. Let me give you an example. At the tribunal, we led evidence that that court order was obeyed. After the tribunal, led by Hon. Justice Rita Irele-Ifijeh and her team had gone through our written addresses and trial, they concluded two things. One was that the court does not have jurisdiction to try that petition, the petition having been predicted on invalid nomination and sponsorship. But because they are a trial court and not the final court, they still had to make pronouncements on the substance of the petition and they said that the court order was obeyed. They also found out that Mutfwang was properly nominated and sponsored. These were there and the authorities were there. We went to the Court of Appeal and they assumed jurisdiction wrongly. And let me tell you there are authorities, including Oni and Oyebanji, the current governor of Ekiti State where the Supreme Court said that a political party whose leadership is in question does not lose the right to nominate and sponsor a candidate. We cited that. I personally cited the authority in my brief. It’s there. If the Supreme Court had said so, so be it even if you don’t believe in it. You don’t have a choice but to act on it. They said the congress was not properly conducted though that congress was not challenged. It took place in 2021; no single soul challenged it in court until they brought up their petition in 2023. And for you to challenge any pre-election matter, you have to do it within 14 days. Years later, somebody who is not a member of PDP and who does not have locus standi comes up to challenge this. And I challenged it. I orchestrated thus, agitated the minds of the Court of Appeal, but they refused to agree with us. And when we got the the Court of Appeal and they chose to assume jurisdiction and they did what they did probably because they didn’t realise that the Supreme Court will insist on their previous judgments, which obviously swept away whatever they thought was the true position of the law. It was so bad that one of the justices referred to the justices of the tribunal; what he wrote was that the tribunal ‘claimed’. A judge is writing about a fellow judge. He says that the tribunal claimed that……. He started saying what the tribunal held. Rather than saying that the tribunal erroneously found or concluded. How can a judge refer to the findings of another judge as claimed. That was where we were coming from and thank God for the Supreme Court. I will quote Damian Dodo (SAN) once again who said that but for the Supreme Court, Kano would have been boiling by now and Plateau and Zamfara will continue to boil and many others. But we thank God that the Supreme Court got it right and they’ll continue to get it right, we pray.