by Sam Eleanya
On Thursday, 25 June, 2015, the Governor of Rivers State, Nyesom Wike, announced the ‘restoration’ of the ‘rights’ of Celestine Omehia as a ‘former Governor’ of Rivers State, the largest economy in the Niger Delta region of Nigeria. By that executive fiat, Governor Wike created a former Governor out of a man the full panel of the Supreme Court of Nigeria unequivocally stated was never a Governor under the laws and Constitution of Nigeria. Thus, not only was Omehia made entitled to have his portrait hung perennially in the pavilion of former Governors of the State and to have all the State’s official publications and history books amended to reflect that ‘fact’, he will also be entitled to a pension for a life at the same rate as the remuneration of any sitting Governor: all as reward for his brief 3 months of wrongfully, according to the Supreme Court, parading as Governor.
Why does Wike have to – or better – need to do that: ridicule and disembowel the effects of the judgment of a full panel of the Supreme Court of Nigeria in Rotimi Chibuike Amaechi V. Independent National Electoral Commission, INEC/Celestine Omehia/Peoples Democratic Party? Why is there suddenly a groundswell of seemingly wellorchestrated attempt by several politicians, lawyers and commentators to bring that judgment into disrepute in the public space? Part I of this series engages that by bringing excerpts of that judgment, rendered in the very word of the Jurist who gave the leading judgment – the revered Justice Oguntade – to Nigerians once again. The objective is to remind Nigerians why that judgment was a game changer in the political development of Nigeria – and why it needs to be defended. Enjoy the excerpts of Sam Eleanya interview of Justice Oguntade.
What was the nature of amaechi’s petition: was it an election petition?
Oguntade, JSC: Amaechi’s case [was] not an election petition as to whether [Celestine] Omehia has been validly elected to the office of Governor
Amaechi’s suit was filed on 26/01/07. The Governorship elections for Rivers State were not held until 14/04/07. Amaechis’ suit did not and could not have questioned anything about the election yet to be held. Amaechi, as a citizen had simply exercised his right of access to the court as guaranteed him under section 36 of the 1999 Constitution.
What were the moving facts behind this judgment?
Oguntade JSC: Amaechi, as a member of PDP, in his quest to be the Governorship candidate of the party, in the April, 2007 elections in Rivers State, contested the Party Primaries against seven other members of the PDP. They competed for a total of 6,575 votes. Amaechi had 6,527 votes to emerge the winner. Omehia was not one of the candidates at the PDP Primaries
Now, it is not in dispute that in the PDP primaries for the Governorship elections in Rivers State, Amaechi had 6,527 votes to emerge the winner. The individual who came second in the primaries was Senator Martyns Yellow J.S. who scored 28 votes. The 3rd candidate Samuel Horseful had 10 votes. The 4th and 5th candidates at the primaries had 6 and 4 votes respectively. Each of the three other candidates scored zero. It is no exaggeration to say that Amaechi won the primaries overwhelmingly.
[The] P.D.P. in an apparent deference to the results of its party primaries sent the name of Amaechi [on 14 – 12 – 2006] to Independent National Electoral Commission INEC as its candidate for the governorship elections in Rivers State.
[About 2 months later on 14 – 12 – 2006, PDP sent another letter to Independent National Electoral Commission,(INEC), Chairman, Prof. Maurice Iwu signed by Ahmadu Alli as Chairman and Ojo Maduekwe as National Secretary asking for the substitution of Amaechi with Omehia on the ground of ‘error’].
No court of law subsequently made an order disqualifying Amaechi from contesting the Governorship elections. PDP however substituted Omehia’s name for Amaechi’s without giving cogent and verifiable reason for the substitution as required by the Electoral Act, 2006.
I observed earlier that Amaechi’s case was that Omehia did not contest as a candidate in the P.D.P primaries. The question that arises is – what ‘error’ made [it] possible for a non-candidate at PDP primaries to be named the P.D.P. candidate in the place of eight candidates who contested and of whom Amaechi came first? It seems clear that the reason given by P.D.P for the substitution of Omehia for Amaechi was patently untrue and certainly unverifiable.
What was it that the supreme court really decided?
Oguntade JSC: In his argument in the brief filed for [the] People’s Democratic Party, PDP, J.K. Gadzama S.A.N, senior counsel argued that Amaechi who had not contested the election could not be declared the winner. He stated that such a declaration would amount to a negation of democratic practice. With respect to counsel, I think he missed the central issue which is that it was in fact Amaechi and not Omehia who contested the election.
Omehia remained no more than a pretender to the office. The one unchanging feature is that PDP was the sponsoring party.
As for the argument that it is a negation of democracy to declare Amaechi the winner, it must be borne in mind that this suit was brought to court as an intra-party dispute. At the time it was brought, the question concerning which party or candidate would win the Governorship election in Rivers State was irrelevant and not an issue. It simply had to do with the question which candidate would run for PDP.
Now section 221 of the 1999 Constitution provides:
“No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election.”
The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. I think that the failure of respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election.
I mentioned earlier that P.D.P did not provide cogent and verifiable reason for the attempt to substitute Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested right by his victory at the primaries and the submission of his name to INEC was never removed as P.D.P’s candidate. If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished. What P.D.P did was merely a purported attempt to effect a change of candidates. But as it did not comply with the only method laid down by law to effect the change, the consequence in law is that the said change was never effected. In the eyes of the law, Amaechi’s name earlier sent to INEC was never removed or withdrawn.
And the supreme court felt it had the powers to declare amaechi the governor in that circumstance?
Oguntade JSC: There can be no doubt that there is a plenitude of power available to [the Supreme Court] to do [what] the justice of the case deserves. It enables a court to grant consequential reliefs in the interest of justice even where such have not been specifically claimed. Having held as I did that the name of Amaechi was not substituted as provided by law, the consequence is that he was the candidate of the PDP for whom the party campaigned in the April 2007 elections not Omehia and since PDP was declared to have won the said elections, Amaechi must be deemed the candidate that won the election for the P.D.P. In the eyes of the law, Omehia was never a candidate in the election much less the winner.
Couldn’t the supreme court just cancel the election and order a fresh one with amaechi as pdp candidate for the sake of voters?
Oguntade JSC: I ought not allow my approach to this case to be influenced by a consideration of the fact that PDP eventually won the election. Even if Omehia had lost the election, this court would still be entitled to declare that it was Amaechi and not Omehia who was PDP’s candidate for the election. The argument that a new election ought to be ordered, overlooks the fact that this was not an election petition appeal before this court but rather an appeal on a simple dispute between two members of the same party. If this court falls into the trap of ordering a new election, a dangerous precedent would have been created that whenever a candidate is improperly substituted by a political party, the court must order a fresh election even if the candidate put up by the party does not win the election. The court must shut its mind to the fact that a party wins or loses the election. The duty of the court is to answer the question which of two contending candidates was the validly nominated candidate for the election. It is purely an irrelevant matter whether the candidate in the election who was improperly allowed to contest wins or loses. The candidate that wins the case on the judgment of the court simply steps into the shoes of his invalidly nominated opponent whether as loser or winner.
[Besides] the combined effect of section 147 and paragraph 27 [of the Electoral Act, 2006] is that [the Supreme Court] has no jurisdiction to nullify an election and order a fresh one. All that I can do is to declare whether or not Amaechi was the candidate validly nominated and to grant him the reliefs which on the evidence he is entitled to. The jurisdiction to declare the election invalid is vested in an Election Tribunal
So why did the supreme court refuse to order amaechi to go to the election tribunal?
Oguntade JSC: It has been argued that [the Supreme Court] has no jurisdiction to entertain this appeal. I think that such argument [was] an attempt to ‘kill’ Amaechi’s case.
It [was] apparent that based on [Sections 144 and 145 of the Electoral Act 2006], Amaechi would have been unable to have a platform upon which to make a case at the Election Tribunal. The nearest he could come to securing a platform before an Election Tribunal would have been under section 145(d) above. But his case would still have come to grief because that provision does not cover intra party dispute as in the instant case.
What was the supreme court’s business – in amaechi’s matter? Was it bribed to do justice?
Oguntade JSC: [The Supreme Court] and indeed all courts in Nigeria have a duty which flows from a power granted by the constitution of Nigeria to ensure that citizens of Nigeria, high and low get the justice which their case deserves. The powers of the court are derived from the constitution not at the sufferance or generosity of any other arm of the Government of Nigeria. The judiciary like all citizens of this Country cannot be a passive on-looker when any person attempts to subvert the administration of justice and will not hesitate to use the powers available to it to do justice in the cases before it.
But, is it not the truth that a political party has the final say on who its candidates for elections are – and not the courts?
Oguntade JSC: The respondents’ [PDP/INEC/Omehia] counsel in their briefs have strenuously argued that political parties have the right to put up as candidates for elective offices any persons they deem fit. They relied with a measure of confidence on the decisions of [the Supreme Court] in Dalhatu v. Turaki [2003] 7 SC. 1, [2003] 15 NWLR (P843) 300 and P.C. Onuoha v. R.B.K. Okafor [1983] SC NLR 244 and some others. Counsel would appear however to have overlooked the fact that there were no provisions of the Electoral Act similar to section 34(2) of the Electoral Act 2006 in force at the time these cases they relied upon were decided. Put simply, section 34(2) has altered the law and made those cases inapplicable in a case as this. It must be borne in mind that the Political Parties were a creation of section 221 of the 1999 Constitution. The same 1999 [Constitution] in section 222 imposes the duty on parties to file copies of their Constitution with Independent National Electoral Commission (INEC). Nothing in a party’s Constitution can override or be superior to the Constitution of Nigeria and the Laws validly enacted by the authority of the Nigerian Constitution.
It is certainly not the intention of the Act to gamble with an important aspect of the electoral process, such as primaries in the hands of a political party to dictate the pace in anyway it likes, without any corresponding exercise of due process on the part of an aggrieved person.
If a section of a statute contains the mandatory “shall” and it is so construed by the court, then the consequence of not complying with the provision follows automatically. I do not think I sound clear. Perhaps I will be clearer by taking Section 34(2) [of the Electoral Act]. The subsection provides that there must be cogent and verifiable reasons for the substitution on the part of [PDP]. This places a burden on [PDP] not only to provide reasons but such reasons must be cogent and verifiable. If no reasons are given, as in this case, not to talk of the cogency and verifiability of the reasons, then the sanction that follows or better that flows automatically is that the subsection was not complied with and therefore [would be] interpreted against [PDP] in the way I have done in this judgment. It is as simple as that.
What really was the big deal for the supreme court beyond amaechi becoming governor of rivers state?
Oguntade JSC: An observer of the Nigerian political scene today easily discovers that the failure of the parties to ensure intra-party democracy and live by the provisions of their Constitutions as to the emergence of candidates for elections is one of the major causes of the serious problems hindering the enthronement of a representative government in the country. If a political party was not to be bound by the provisions of its Constitution concerning party primaries, why would there be the need to send members of the parties aspiring to be candidates for an electoral offices on a wild goose chase upon which they dissipate their resources and waste time. Would it not have made better sense in that event for the political parties to just set out the criteria for the emergence of their candidates for electoral offices and then reserve to themselves (i.e. the parties) the ultimate power, to decide who should contest and who should not.”
The political parties in Nigeria are the creation of the Constitution. They therefore have an important stake in flying high and loftily the banner of the rule of law. In this case the P.D.P did not live up to that standard. It did everything possible to subvert the rule of law, frustrate Amaechi and hold the court before the general public as supine and irrelevant. Sadly INEC and Omehia also did the same.
These occurrences needlessly brought the administration of justice to disrepute and I am greatly alarmed by these developments. The result of this calculated and improper behaviour was that the respondents [INEC/PDP/Omehia] ensured that the elections for the Governorship office in Rivers State were held and Omehia sworn in as Governor before Amaechi’s appeal was heard. Before us in this appeal, the respondents who had improperly prevented the expeditious hearing of the appeal, argued that this court has no jurisdiction on the ground that elections had been held and further that because Omehia has been sworn in as Governor of Rivers State, he now enjoys immunity from civil suits. In other words they relied on their own wrong doing to oust the jurisdiction of this court.
Doesn’t the supreme court also have the duty to consider the case of the pdp, inec and celestine omehia with equal passion?
Oguntade JSC: The major [flaw] in the case of the respondents [PPDP/INEC/CELESTINE OMEHIA] throughout this case [was] the belief held by them that the right of political parties to decide who should contest an election as party candidates is superior to the provisions of the Constitution of Nigeria and the Laws. It is my view that a political party is able to control the affairs of the party only to the extent that the exercise of such control does not run against the provisions of the Constitution and Laws of Nigeria.
Section 178 above is a provision of the 1999 Constitution intended to ensure a smooth transition from one administration to another. It is not a provision to destroy the right of access to the court granted to a citizen under section 36 of the same Constitution. In the same way section 285(2)…cannot be construed to destroy the jurisdiction which the ordinary courts in Nigeria have in pre-election matters. Were the court to construe section 285(2) as having the effect of ousting the jurisdiction of the ordinary court in pre-election matters, all that a defendant would need to do to frustrate a plaintiff is to stall for time and obtain adjournment to ensure that a plaintiffs case is ‘killed’ once an election is held
As I shall shortly show, it is my view that the approach of the respondents to this case was to ‘kill’ Amaechi’s case in the misconceived notion that once elections were held the court would lose its jurisdiction. It is my firm view that the jurisdiction of the ordinary courts to adjudicate in pre-election matters remains intact and unimpaired by sections 178(2) and 285(2) of the 1999 Constitution.
Surely, that judgment was unprecedented. This is supposed to be the conservative supreme court of nigeria!
Oguntade JSC: As I stated earlier there is no doubt that the intention of Amaechi, to be garnered from the nature of the reliefs he sought from the court of trial, was that he be pronounced the Governorship candidate of the P.D.P for the April, 2007 election in Rivers State. He could not have asked to be declared Governor. But the elections to the office were held before the case was decided by the court below. Am I now to say that although Amaechi has won his case, he should go home empty-handed because elections had been conducted into the office? That is not the way of the court. A court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heavens fall. The truth of course is that when justice has been done, the heavens stay in place. It is futile to merely declare that it was Amaechi and not Omehia that was the candidate of the P.D.P. What benefit will such a declaration confer on Amaechi? [Lord] Denning M. R. in emphasizing that there ought not to be hindrances or constraints in the way of dispensing justice had this to say:
“What is the argument on the other side? Only this, that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.”
The sum total of the recent decisions of this court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than he approached the court.
Now in this court, Omehia never argued that he took part in P.D.P primaries. He therefore did not manifest a desire for the office of Governor of Rivers State. Amaechi vied in the primaries for the office. He won overwhelmingly. Amaechi’s name was sent to INEC as P.D.P’s candidate.
Did the trial court make similar findings as the supreme court?
Oguntade JSC: The case was heard by Nyako J of the Federal High Court on this state of pleadings. At the conclusion of pleadings, there was no dispute whatsoever as to the following facts [as at 15-03-07]:
(1) That Amaechi contested and won the PDP’s Primaries for the Governorship Elections in Rivers State.
(2) That Omehia never took part in such Party Primaries.
(3) That Amaechi’s name was first forwarded by PDP to INEC.
(4) That Omehia’s name was later substituted for Amaechi’s vide a letter sent to INEC by PDP on 2/02/2007.
(5) That the reason given by PDP for the substitution was ‘error’.
Why did the court of appeal come to a different conclusion?
Oguntade JSC: [Amaechi’s case was in the Court of Appeal when the Supreme Court considered Ugwu & Anor. v Araraume & Anor. [2007] 6 S.C. (Part 1) 88] The issue that was considered by the Supreme Court [in Ararume’s case] was whether or not the reason – ‘error’ – satisfied the requirement of section 34 of the Electoral Act in a situation where Engineer Ugwu who came 16th in the PDP primaries for the Governorship of Imo State was substituted for Senator Ifeanyi Araraume who came first. [Note:]
- The Court of Appeal had on 4-04-2007 stated that in the consideration of Amaechi’s appeal it would be bound by the judgment of this Court in the Ararume appeal.
- The Supreme Court [ruled on Ararume’s case a day after on 5-04-2007 affirming] the judgment of the Court of Appeal to the effect that ‘error’ as a reason did not satisfy the requirements of Section 34(2) of the Electoral Act, 2006 for the substitution of one candidate with another.
- On 5-04-2007 when this Court gave its judgment in the Araraurne case, the elections were still nine days away.
- On 10-04-2007, the P.D.P. published a notice expelling both Araraume and Amaechi from the party in reaction to the judgment given by this Court on 5-04-2007.
- Omehia and P.D.P. on 11-04-2007, three days to the election brought an application that Amaechi’s appeal be struck out following his expulsion from the party.
- On 16-04-2007, two days after the Governorship election, the Court of Appeal struck out Amaechi’s appeal [without abiding by the agreement to rule following the Supreme Court’s ruling in the Ararume’s case].
- On 11/5/07 – Amaechi dissatisfied with the Court of Appeal ruling approached the Supreme Court which via a full panel heard the appeal. In a short but expressive judgment, this court, per Katsina-Alu, J.S.C. who presided said: “Having heard all the arguments of learned counsel on all sides, I hold that the court of Appeal was in error in declining jurisdiction to hear the appeal and cross-appeal on the merit. It is now ordered that the matter be remitted to the Court of Appeal, Abuja to hear the two appeals expeditiously.
- On 21-05-2007 – [Instead of allowing the Court of Appeal to obey the new but clear directives of the Supreme Court] Omehia supported by both INEC and P.D.P brought an application before the Court of Appeal asking for stay of further proceedings until the Supreme Court makes available the certified copy of its proceedings and judgment in open court of 11th of May 2007. On 21-05-2007 when the said application [for stay] was filed, the Governorship elections for River State had been concluded and Omehia declared the Governor elect. However, his swearing-in as Governor was not to come until 29-05-2007. The Court of Appeal wrongly granted the application ordering that “the respondent/applicant [PDP/INEC/Omehia] is ordered to file his application at the Supreme Court within seven days from today.” It should not escape attention here that the 7 days allowed to Omehia on 25-5-2007 by the Court below would in effect ensure that he would have been sworn in as Governor of Rivers State on 29-05-2007 before the said application was brought.
- On 10-07-2007 – [following a new appeal brought before the Supreme Court by Amaechi, the Supreme Court gave a ‘repeat order’ that ‘the appeal be heard expeditiously by the court below’.
- On 16-07-2005 – the Court of Appeal finally heard the appeal on merit. This was after Omehia had been sworn in as Rivers State Governor on 29-05-2007”.
- On 20-07-2007: The Court of Appeal reached the following conclusions:
- That the facts in the Amaechi’s case were distinguishable from those in the Araraume case arising from the fact of Amaechi’s indictment as pleaded by 1NEC in paragraph 7 of its Statement of Defence.
- That Amaechi’s name was properly substituted with that of Omehia
[Clearly], the facts of [the Amaechi] case are similar to those in Araraume. Indeed the facts in the Araraume case are more favourable to Engineer Ugwu than those [in] Omehia’s case. Whereas Omehia did not contest P.D.P Primaries at all, Engineer Ugwu in the Araraume case contested and placed 16th. The court below should simply have followed its decision and the decision of this court in the Araraume case. The implication of the finding is that this appeal ought to be allowed: that the substitution of Omehia for Arnaechi was not done in accordance with the law and accordingly the judgment of the court below which was wrongly premised [ought to be] set aside.
In relation to Araraume, the message sent to the general public translated into saying that the P.D.P was not bound to obey the judgment of the court. The P.D.P. by publicly announcing that it had no candidate for Imo State Governorship election, clearly destroyed the efficacy of the judgment in favour of Ararume given by this Court in order to destroy his chances at the election. In relation to the Amaechi’s case., the message to the public was that whatever judgment the court gave was irrelevant. Worse still, the P.D.P went before the court below to ask that the appeal in Amaechi’s case be struck out on the ground that with his expulsion, the court had lost the jurisdiction to hear the case. Let me say for the’ avoidance of doubt that the expulsion of Amaechi from the P.D.P. at the time when his appeal was pending before the court below was unlawful and amounts to a ‘calculated attempt to undermine judicial authority.
But, there was also a court case upon which the court of appeal based its finding of ‘indictment’?
Oguntade JSC: The evidence sought to be called on appeal was the ruling which Kuewumi J gave on 30-3-2007 in a suit in which Amaechi had been challenging his “purported indictment”. Kuewumi J did not decide the case on the merits but rather on the narrow ground that the filing of the suit constituted an abuse of the court process.
The suit was dismissed but nothing was decided therein as to whether or not Amaechi was indicted. It would seem from the final judgment of the [Court of Appeal] that it was the said judgment of Kuewumi J. that was relied upon to arrive at the conclusion that Amaechi was indicted. Was the court below correct to have received the said judgment of Kuewumi J in evidence? Was the court below correct to have taken the said judgment as proof of indictment of Amaechi? Could the said judgment, which was delivered on 30-3-2007, be the basis of the substitution of Omehia for Arnaechi which was done on 02-02-2007? The answers to all the three questions must be in the negative.
Wasn’t pdp entitled to plead ‘error’ to substitute amaechi’s name?
Oguntade JSC: I observed earlier that Amaechi’s case was that Omehia did not contest as a candidate in the P.D.P primaries. The question that arises is – what ‘error’ made [it] possible for a non-candidate at PDP primaries to be named the P.D.P. candidate in the place of eight candidates who contested and of whom Amaechi came first? It seems clear that the reason given by P.D.P for the substitution of Omehia for Amaechi was patently untrue and certainly unverifiable.
Didn’t the economic and financial crimes indict amaechi?
Oguntade JSC: The EFCC is a statutory body created under the Laws of Nigeria. Its duties include the investigation and prosecution of a class of criminal offences. In essence, once its investigation has shown prima facie that a person has committed a criminal offence, the duty of EFCC is to have such offender prosecuted in a court of law. I know of no provision of the law which enables EFCC upon the conclusion of investigation in a criminal case to send the report or case file to either the Federal or State Government. I am surprised therefore to see that INEC pleaded that Amaechi was indicted by EFCC and that the report on the indictment was accepted by the Federal Government. That procedure is not backed by any law in force. Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences.
[In any case, could] the news concerning a report given to the Federal Government on 19 – 02 – 2007 or 13 – 02 – 2007 be the basis of Amaechi’s substitution on 02 – 02 – 2007?
The panel set up by the Federal Government only submitted its report on Monday 19th day of February, 2007 although the news of and its actual constitution came on Wednesday 13th day of February 2007.
The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever.
It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law. Judicial Commission of inquiry or an administrative panel is not the same thing as a court of law or its equivalent. Because a court of law operates within a judicial hierarchy any person wrongly convicted is enabled to contest his conviction to the Supreme Court of Nigeria.
It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country.
Sam Eleanya, Founder/Managing Editor of LawNigeria.com is the Director of Strategy, Children and Women Law Center. You can reach him at [email protected]
Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.
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