By Abdulhameed M. Aliyu Esq
On 9th February, 2023, BarristerNG.com via https://barristerng.com/download-judgment-machina-vs-lawan-the-controversial-supreme-court-decision/ published an unsigned and uncertified copy of the lead judgment of the Supreme Court of Nigeria delivered on 6th February, 2023 in Appeal No. SC/CV/1689/2022 – All Progressives Congress Vs. Bashir Sheriff & 2 Ors.
From the online copy of the lead judgment, it revealed that five (5) Justices of the Supreme Court empanelled the Court namely Honourable Justice Chima Centus Nweze (who read the lead judgment), Honourable Justice Mohammed Lawal Garba, Honourable Justice Helen Moronkeji Ogunwumiju, Honourable Justice Adamu Jauro and Honourable Justice Emmanuel Akomaye Agim. As stated above, the Appellant in the Appeal is the All Progressives Congress (APC) while the Respondents are Bashir Sheriff, Ahmed Lawan and Independent National Electoral Commission (INEC).
It was an Appeal from the Court of Appeal, Abuja, which upheld the judgment of the Federal High Court, Damaturu Judicial Division in Yobe State.Since the delivery of the judgment of the Apex Court, the social media space has been agog with mixed emotional and analytical expression of concerns both for and against the three ratio two verdict. Courtesy of the above referenced online lead judgment, the writer was opportune to read through and appraise the reasoning and findings of the Honourable Justices of the Supreme Court. One of the striking parts of the judgment was at page 9 where the Appellant (APC) formulated issue number six (6) to be canvassed at the Appeal and it reads thus;“6.
Whether in the circumstances of the primary election of the Appellant held on June 9, 2022, the third Respondent’s deliberate failure to monitor the primary election of the Appellant held on June 9, 2022 could in law invalidate the result of the said primary election held on June 9, 2022?”
Although, the online copy of the lead judgment of the Apex Court currently making the rounds only resolved Appellant’s formulated issue number one in the appeal, thereby leaving out the other five issues of the Appellant as well as the two formulated issues of the 1st Respondent.However, it is the writer’s personal conviction that the aforestated issue number 6 of the Appellant (APC) amounts to an explicit admission to the effect that the acclaimed primary election of the APC for Yobe North Senatorial District conducted on 9th of June, 2022, which allegedly produced Sen. Ahmed Lawan as the APC candidate was done in flagrant breach of Section 84(1) of the Electoral Act, 2022 in the sense that INEC did not monitored the alleged primary election.
For clarity sake, the said Section 84(1) of the Electoral Act, 2022 provides thus;“A political party seeking to nominate candidate for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.” The operative word in that provision is ‘SHALL’ as emphasised above and I need not belabour this article with replete of judicial decisions about the mandatory and compelling effects of the word SHALL in a statute, which commands compliance/strict adherence and any violation thereof has fatal consequences on acts committed or omitted.It is indeed immaterial whether or not the failure of INEC to monitor the said election was deliberate or otherwise as intelligently coined by the Counsel to APC in their formulated issue number 6.
This is because Section 84(13) of the Electoral Act, 2022 further provided thus:“ Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”Certainly, the legal team of the APC are aware of the resultant grave consequence of not having INEC to monitor the acclaimed primary election of the party for Yobe North Senatorial District conducted on 9th of June, 2022 which allegedly produced Sen. Ahmed Lawan as its flag bearer, hence the need to raise the issue amongst the determinations of the Apex for judicial sanctioning against INEC.
Unfortunately, Honourable Justice Nweze who delivered the lead judgment cast off the issue and made no pronouncement on it.The question therefore is – will INEC accept the nomination of Sen. Ahmed Lawan as the candidate of the APC for Yobe North Senatorial District in respect of a primary election which it never monitored on 9th of June, 2022? Certainly, the answer will be in the negative, except if INEC chooses to also act in violation of the express wordings and dictates of the Electoral Act, 2022, and create a bad and unlawful precedence in Nigeria’s polity.
Besides, the judgment of the Apex Court merely set aside the decision of the Court of Appeal, which affirmed the judgment of the Federal High Court, Damaturu Division in Yobe State and by extension struck out the suit of the 1st Respondent Bashir Sheriff as Plaintiffc at the trial Court. The reason was simply that Bashir Sheriff commenced the suit via a wrong mode i.e. originating summons as against writ of summons due to the hostility of facts and allegations of fraud.To my mind, the victory of the judgment of the Apex Court favours the 1st Respondent Bashir Sheriff because parties were merely reinstated back to status quo ante bellum, a Latin phrase meaning ‘the condition that existed before the battle’.
Expectedly, INEC has the right to grandstand and statutorily refuse to recognise Sen. Ahmed Lawan as the candidate of APC for Yobe North Senatorial District because he was a product of a primary election allegedly conducted on 9th of June, 2022, which INEC never monitored contrary to the express provision of Section 84(1 & 13) of the Electoral Act, 2022.
Abdulhameed M. Aliyu Esq., an Abuja Based Legal Practitioner07036114698
