By Jibrin Samuel Okutepa

On the 16th day of July 2024, I received a WhatsApp message from Yusuf M. Dantalle, National Chairman of Inter-Party Advisory Council (IPAC) inviting me to be the Keynote Speaker at this occasion. The topic he said I should speak on is: The role of the Judiciary in Nigeria’s Democratic Sustainability. This was followed by a letter dated 22nd July 2024. I initially did not want to accept the invitation given that there is nothing to be said on this occasion that had not been said by me and many Nigerians who are lovers of democracy.

But then, I decided to accept to speak on the topic. I was excited about this topic. It is relevant. It is current. It is topical. The topic also underscores the role of the Nigerian Judiciary in contributing to the growth and development of democracy in our dear nation Nigeria. This topic therefore needs to be truthfully and frankly interrogated at the gathering of political juggernauts and heavyweights like those gathering here today. 

Let me start by thanking the Leadership of IPAC for this roundtable talk and for the privilege and opportunity extended to me to present the keynote address on this occasion. I cannot hazard a guess as to why I was found worthy to be called upon to present this keynote address, given the array of Nigerians who can do better than me.  I am just an ordinary legal practitioner. To be invited by politicians populated by IPAC is as frightening and intimidating as it is challenging. Let me confess here. I am not a politician. I do not belong to any political party in Nigeria or elsewhere. So, I will not speak like a politician here. I will speak as a Nigerian who loves democracy and desires its sustainability in Nigeria for the greatest good of the greatest happiness of the greatest numbers of Nigerians.

Be that as it may, all I can say is that whatever informed your choice of me to present this keynote address, has humbled me. I am humbled to be invited to present this address before this well-informed audience and expert players in the field of politics and political games.  I am humbled because, in the kingdom of men and women of knowledge and industry in Nigeria’s political field, I consider myself the least qualified to be the keynote speaker at this auspicious occasion and in this august gathering in the month of August. I thank you all for this rare privilege. If I do well in presenting this address, then let God take the glory. But in case I did not meet your expectations, forgive me. After all, to err is human and to forgive is divine. Thank you all in anticipation of your forgiveness.

In this address, I will try to be blunt, truthful, and speak out to the practical realities of our situation. I am not going to spare the truth. We all know the truth. I may not please some people here. Forgive me if I hurt you or anyone close to you. After all, the truth is always bitter. I have always believed that the judiciary populated by members of the legal profession, hold the key to democratic growth, development and sustainability. 

Perhaps, it is necessary to remind ourselves here and to assume that IPAC and its leadership want Nigerians to hear and want me to interrogate how the judiciary has fared so far from 1999 till date in the evolution, growth, development and sustainability of our democratic experiment. Can it be said that in the strict sense of the word and given the decisions coming out of our Courts and Tribunals, since 1999 till date, whether those decisions can be said to have aided the growth, development and sustainability of a democratic system and culture that has produced good governance for the good of all or for the greatest happiness of the vast majority of Nigerian people. 

In other words, has the judiciary in Nigeria been able to hold the political class accountable since 1999 or has the judiciary in Nigeria become part and parcel of the retardation of democratic growth, development and sustainability of governance in Nigeria. The answers to these questions require no deeper thinking by any objective and fearless Nigerian who has not had his vision beclouded by partisan considerations. I will leave it to all of you to judge whether, since the inception of the civilian regime on May 29th 1999, the Nigerian judiciary, and indeed the legal profession, have been able to contribute positively or negatively to democratic good governance in Nigeria.

All over the world, historical jurisprudence has shown that members of the legal profession, who are the producers of the judiciaries in their respective countries, play significant roles through the judicial institutions for good governance and accountability. Lawyers, as we all know, are social engineers. Indeed, members of the legal profession have played significant roles in the growth and developments of the most developed nations in the world. When I speak of members of the Legal Profession, I mean the Bar and the Bench. The legal profession is the only profession that has exclusive right to appoint legal practitioners as judicial officers that head the judicial arm of the Government. These legal practitioners are lawyers with defined code of conduct. The code of conduct of these legal practitioners is rooted in set standards of conduct that should not admit of partiality in judicial adjudications.

These give the legal profession and or the judiciary the opportunities and privileges to shape and or retard democracy and democratic growth and development in Nigeria. These the legal profession can do by the principles of law members of that profession propound and uphold through the judiciary. As we all know, the public perception of the judiciary and its role in democratic governance, including trust and confidence levels, has become very low in recent times. How has judicial arm of government’s performances affected the overall democratic growth and governance in Nigeria. Has the judiciary in Nigeria been able to shape the democratic norms and growth through their adjudications in electoral disputes since Nigeria returned to civil rule. I will discuss this as we progress in this address.

APPLICABLE ELECTORAL LAWS & ROLE OF THE JUDICIARY IN DEMOCRACY.

For those who are familiar with the history of democracy in Nigeria, the freest election in the annals of Nigeria history was the June 12th 1993 elections. That election was nullified by the military. As we all know, the June 12th 1993 election was nullified and the judiciary in Nigeria cannot escape the blame. We are all familiar with Association of Better Nigeria led by late Senator Arthur Nzeribe who secured orders that led to the annulment of June 12th Presidential elections. Nigeria experienced a series of military coups and military rules from 1966 to 1999.

During this period, electoral laws were largely suspended, and the military governments ruled by decree. Elections were often cancelled or manipulated to maintain military control. The history of electoral laws in Nigeria is marked by a series of reforms and changes aimed at improving the country’s electoral process and ensuring free and fair elections. Nigeria gained independence from British colonial rule in 1960. Initially, the electoral laws were based on the British model, with a parliamentary system and a Governor-General as the ceremonial Head of state.

The first Electoral body in Nigeria was the Electoral Commission of Nigeria (ECN) which was inaugurated to conduct the 1959 Federal elections. After which the Electoral Act of 1960 governed the conduct of elections during this period. In 1963, Nigeria became a Republic with a President as the Head of state. The Republican Constitution of 1963 introduced significant changes to the electoral laws. The Electoral Act of 1963 established the framework for conducting Federal and regional elections.

In the early 1990s, Nigeria began transitioning from military rule to democracy. General Ibrahim Babangida initiated a transition programme, which culminated in the annulled presidential elections of 1993. However, this period saw the enactment of the Electoral Decree of 1993, which outlined guidelines for the conduct of elections. In 1999, Nigeria returned to civilian rule with the inauguration of President Olusegun Obasanjo. The Electoral Act of 2002 was enacted to regulate the electoral process during this period.

The Independent National Electoral Commission was first established by Decree No.17 of 1998. See section 1 of that Decree. Then the 1999 Constitution re-established the Independent National Electoral Commission in section 153(1) (f) of the said constitution. In the discharge of its functions as set out in part 1 of the 3rd schedule to the Constitution, the commission was not to be subject to control and direction of anybody. As to whether or not that is being observed in true and in reality, is a fact well known to us that INEC is just simply INEC in name and not in fact.  I do not see INEC as independent in the discharge of its duties. That, to me, is the bane of our democracy.

There are several electoral Acts that re-established the Independent National Electoral Commission (INEC) as an independent body responsible for conducting elections. There were subsequent amendments made to the Electoral Acts in 2006, 2010, 2015 and 2022 to address emerging challenges and improve the electoral processes. Over the years, Nigeria has witnessed several electoral reforms and enactments like the INEC Regulations and guidelines for the conduct of Elections 2019, together with various sections of the Constitution of the Federal Republic of Nigeria, aimed at addressing electoral irregularities and enhancing transparency and democratic growth and developments.

Such reforms include the recommendations for the establishment of the Electoral Offences Commission and Tribunal Act, 2010, amendments to the Electoral Act in 2015 to allow for the use of card readers, and the 2022 Act that introduced electronic transmission of results. These are some of the applicable recommendations and laws that have helped shape Nigeria’s democracy and have brought about a dynamic shift from how the country operated under military rule to the current democratic system. However, these laws were mainly obeyed in breach by those we trusted with the responsibility of operating them. The judiciary is said to be the last hope of the common man. How has the judiciary lived to the expectations of Nigerians in democratic growth, development, and governance in Nigeria? This will be interrogated shortly hereunder.

THE ROLE OF THE JUDICIARY IN DEMOCRATIC GOVERNANCE AND

SUSTANABILITY IN NIGERIA.

Democracy is a cornerstone of modern governance. It is characterized by free and fair elections that allow citizens to express their will and choose their leaders. The Supreme Court spoke about the meaning of democracy in Rt. Hon. Rotimi Chibuike Amaechi vs Independent National Electoral Commission & Ors (2008) LPELR-446(SC) when Dahiru Musdapher, JSC, as he then was, later CJN and now of blessed memory at P.104, paras. A-F, said that: Democracy’s word is rich and multifaceted. Democracy should not be viewed from a one-dimensional vantage point. Democracy is multidimensional. It is based both on the centrality of laws and democratic values, and, at their center, human rights. Indeed, democracy is based on every individual’s enjoyment of rights of which even the majority cannot deny him simply because the power of the majority is in it hands. Roland Dworkin in A Bill of Rights for Britain 1990, Pages 35 – 36 stated:- ” ….true democracy is not just statistical democracy, in which anything, a majority or plurality wants is legitimate for that reason, but communal democracy, in which majority decision is legitimate only when it is a majority decision within a community of equals. That means not only that everyone must be allowed to participate in politics as an equal through the vote and though freedom of speech and protest, but that political decisions must treat everyone with equal concern and respect, that each individual person must be guaranteed fundamental civil and political rights no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life.

In Nigeria, as in many democratic nations, Nigerians and our laws expect the Nigerian judiciary to play crucial roles in preserving and protecting democratic governance and the integrity of democracy through election tribunals and courts by adjudicating electoral disputes. The 1999 Constitution of Nigeria vests the judicial powers of the federation in the courts established by the Constitution. This means that all disputes, including election disputes, are to be submitted to the courts for adjudication and resolution. The judiciary, often referred to as the ‘last hope of the common man,’ holds the responsibility of safeguarding the rights of every individual, organization, and entity, especially against any abuses of power by the influential figures in society.

This is what the Supreme Court did in Amechi’s case supra. The Supreme Court underscored the powers of the judiciary in that case when his Lordship, Oguntade JSC as he then was who delivered the lead judgement held at PP. 80-82, Paras. E-A that: This 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. Section 6(6)(a) of the 1999 Constitution provides: “(6) The judicial powers vested in accordance with the foregoing provisions of this Section (a) shall extend, notwithstanding anything contrary in this Constitution to all inherent powers and sanctions of a Court of law.” And Section 22 of the Supreme Court Act provides: “22. The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a Court of first instance and may rehear the case in whole or in part or may remit it to the Court below for the purpose of such rehearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court.” In view of the above provisions, there can be no doubt that there is a plenitude of power available to this Court to do which 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.

The existence of judicial institutions worldwide is justified by their foundational role, which includes the establishment of election tribunals in Nigeria. These tribunals are established to hear and determine petitions regarding the validity of elections for various offices, including Senators, Members of the House of Representatives, Governors, Deputy Governors, and Members of the State House of Assembly. These tribunals have a unique nature, referred to as “sui generis,” with procedural rules and laws set out in the Electoral Act and the Election Tribunal and Court Practice Directions. See for instance section 285 of the 1999 constitution that established these election Petition Tribunals. The Court of Appeal acts as the Presidential Election Petition Court to hear petitions to the office of the President of Nigeria.

The judiciary in Nigeria has been assigned roles by the Constitution and the Electoral Act to address pre- and post-electoral disputes in the country’s democratic processes. Prior 2006, for instance, nominations of candidates for various political offices were not subject to judicial scrutiny. The Courts were castrated from entertaining disputes arising from nominations of candidates by the various political parties, as these disputes were regarded as domestic affairs of the political parties and were not justiciable.

Indeed, authorities are legion on this point. This was settled by the Supreme Court in the case of Onuoha vs. Okafor & Ors. (1983) 14 NSCL 494 at 499-507 that, where the relief sought is on leadership or intra-party dispute between members of the same political party, only the party can resolve the dispute. Again, in Utuama vs. INEC & Ors. (2017) 13 NWLR (Pt. 1582) 175, the Supreme Court per Ogunbiyi, JSC as he then was held as follows: “By the nature of the claims put forward by the appellant, there is a clear invitation to the trial Court to determine leadership dispute in the 2nd Respondent. Thus, clearly and rightly submitted by the learned counsel for the 2nd and 4th Respondents, is not an exception to Onuoha vs. Okafor (1983) 2 SCNLR 244… In other words, it is not open for a Court to inquire into, the membership/leadership of a political party”. No doubt, Courts of law do not make the practice of interfering with the way and manner political parties, run their internal affairs. This is so because, the general rule is that, a political party is a voluntary organization or association. Persons join such political parties of their own choice. That being so, any dispute over its internal affairs is not justiciable and therefore no Court has jurisdiction to entertain such dispute. This is based on the commonly known principle or rule in FOSS v. Harbottle (1843) 2 Tave 461. The rule postulates that, where there is a dispute between members of an association, it must be resolved by a majority decision of the members. The principle is relevant and applicable in the running of political parties.

But over the years our law makers in their wisdom saw that judiciary who by training is not in law and in theory a political institution, should be given some roles to play in democratic evolution and governance in Nigeria. Thus, the various Electoral Acts from 2006, 2010 and 2022 and even the 1999 constitution have given the judiciary authority and jurisdiction to determine electoral disputes, which are political in nature. The role of the Election Petition Tribunal and Court is to protect the sanctity and sustenance of democracy. It ensures that electoral processes adhere to laid-down rules and regulations, determining matters arising from elections, and act as a watchdog on the electoral roads to democracy. The Election Tribunals are neither criminal nor civil Courts, though essentially civil in nature, that is why it’s usually described as “sui generis” which means “in a class of its own”.

The Court of Appeal in the case of Orji vs. PDP (2009) 14 NWLR (Pt.1161) 310 described the peculiar nature of an Election Petition tribunal as follows; “As rightly submitted by the appellants’ learned senior counsel therefore, with the sui generis nature of Election Petition case, the procedural rules and the law applicable are distinctly set in the Electoral Act, 2006, (now Electoral Act, 2010) and the Election Tribunal and Court practice directions 2007, made pursuant to the 1999 Constitution, Section 246 (1) of the Constitution has given the scope of when an appeal can be brought as of right against a decision of an Election Tribunal”.

The judiciary, particularly election tribunals, play a pivotal role in correcting anomalies in Nigeria’s electoral history. However, there are mixed perceptions among Nigerians about their activities, with some viewing the tribunals as performing creditably and others perceiving intra-personal conflicts within the judiciary. The decisions of election tribunals set legal precedents, guiding future elections and contributing to the development of electoral jurisprudence in Nigeria. This ongoing legal evolution is essential for maintaining consistency and fairness in the electoral process.

THE FUTURE OF DEMOCRACY AND DEMOCRATIC SUSTAINABILITY IN NIGERIA

True democracy is far from Nigeria. The news making rounds in our elections since the advent of civilian rule in most cases are worrisome and frightening to say the least. Nigerian brand of democracy is too complex to understand. It appears that while Nigerians like and love democratic governance as practiced in other civilized nations, some Nigerian politicians and their supporters seem to be too far from democracy and democratic ideals. The brand of democracy most of our political actors loved and practised is government of the selected by the selected for the selected.  Democracy in the true sense of government of the people by the people for the people is far from Nigeria. Political leaders and moneybags have played very dangerous and undermining roles in our democratic journey so far. 

In most elections, some people are always procured to thumb-print ballot papers a day to the election or on the election days and they had the guts and effrontery to take these thumbs printed results to collation centres and INEC always accept these results and announce it.  Some Nigerian politicians have no respect for sovereignty of the people. They have nothing to show in governance, yet they want to still lord it over Nigerians. A lot is going on in Nigerian brand of democracy. It is sad that even those who ought to be civilized behave worse than the most illiterate persons one can imagine.

Our democracy has been militarized and thuggish prone. We allowed what the law prohibited as instrument of installing leadership in power. Today people have been impoverished and poverty has become the lots of our people. When are we going to hold people accountable for the atrocities they commit in the name of governance. I think the ideas behind the periodic holding of elections is for accountability and renewal of mandate or punishing those who failed to do well. Law makers also made provisions in our laws and then donated power to the judiciary to checkmate political delinquency and misbehaviors. Despite all these checks, Nigerians suffered political manipulations in the hands of political actors.

In all of these, the judiciary institution that has the duty to hold politicians accountable appears to have been unable to do so for reasons not far from Nigerian factors. It is sad and terrible that the brand of democracy in Nigeria is by getting power through the barrel of the guns and thuggery and punish people by looting and bragging as saint but worse than Satan in actions and decisions. That is Nigerian brand of democracy. Nothing is done decently. The future is bleak for democracy and electoral jurisprudence in Nigeria. Nigerian democracy may head to a calamitous end unless the judiciary and legal profession retrace their steps in the kind of judgments being delivered in electoral matters by the Nigerian judiciary. I am not a prophet of doom but truth needs to be told.

The legal profession seems to be losing its rightful place in Nigerian society. In those days when judges of immaculate character and courage manned the judiciary in Nigeria, there was consistency in judicial precedents. High courts were bound by their previous decisions. The Court of Appeal was bound by its previous decisions unless there were reasons to depart from it. In departing their lordships will give convincing reasons. The Supreme Court was the alpha and omega of the judiciary and it gave sound decisions rooted in good and logical jurisprudence that produced justice in judgments. Its decisions bind all the courts below it and it’s bound by its own decisions unless over ruled or departed from. It was not consistently inconsistent in decisions. Lawyers were sure that with certainty of precedents of previous decisions, they could give legal advice and be sure that their advice would be correct and almost accurate.

As at now in all honesty and with profound respect, can we say that our revered Supreme Court is not consistently inconsistent in decisions, particularly when it comes to decisions in electoral jurisprudence. I do not with respect think so. There are so many inconsistent decisions and precedents in electoral matters and or jurisprudence in Nigeria coming from the Apex court. This is a fact too notorious to require citation of authorities here. The leadership of the legal profession at various levels are aware of these inconsistent judicial decisions. Many of these inconsistent jurisprudences have created road blocks to not only attainment of justice but certainty of precedents and democratic growth, sustainability and development. Many precedents that are being set in our electoral jurisprudence are in aid of electoral rascality and these are clearly not good attributes of democracy and democratic sustainability.

I believe that gradually, there is no hope of getting justice in electoral jurisprudence by those who are robbed of victories at the polls either by thuggish approaches or by outright INEC collusion with those they are ordered to be declared in breach of the sovereignty of the people. That is what I can deduce from the kind of judgments and decisions being given by our courts, especially the final court of the land. You work so hard and cite decisions in similar cases, but by the stroke of the pen, your efforts, which are not properly appreciated, are dismissed with the waves of hands. What kind of country is Nigeria. Many decisions are at variance with legal logic and constitution and previous decisions of our courts. What is the need for those declared losers of elections in Nigeria going to court when it is cleared that nothing presented in aid of proof of electoral fraud matters to the judex.

Many of the decisions of our courts in electoral matters have elevated rules of court far more superior and supreme to the extent now that in trials of election petition cases, roadblocks mixed with concrete made of iron rods have effectively been erected on the ways of proof of election petitions. Yet we retained rights to file election petitions before the Election Petition Tribunal or Court in our electoral jurisprudence. The right of appeal in election petitions is also donated by the Constitution. There is no doubt that most Nigerians are worried about most of the judgments in election petitions cases.

That is why judgments coming out of courts in election matters are being revolted and ignored by those who are bound to obey them. People are revolting because they see no justice and good logic in those judgments. People know that such decisions are delivered against all known facts, which facts even when presented are overlooked and ignored under the guise of hybrid legal technicalities rooted in the rules of court but not even the substantive laws that permit receptions of such evidence.

Judgments of courts and or Tribunals ought to contain and serve the end of justice, the interest of those who were wrongly denied opportunities at the polls and those who voted for them. But alas, that is not the case in most cases of judgments in electoral matters. And because the logicality of the reasonings behind some of these judgments are of very doubtful jurisprudence, political actors no longer campaign on issues. Democracy in its purest meaning of government of the people by the people in which Sovergnity resides in the people is gone from Nigeria. In reality Nigerian brand of democracy almost sanctioned by our courts are government that is based on selections by the mighty and powerful and not based on elections in which the people freely chose those to govern them. Once you are selected and announced, it becomes difficult to remove you through judicial processes due to combinations of factors not rooted in democratic decency. That is why the phrase go to court has become more popular in our democratic journey so far. They know when you go to court after you have been robbed of victory you are not likely to get justice in judgment.

Many Nigerian politicians used all manners of manipulative antics and tactics to impose themselves in power knowingly fully well that there will be no remedy and consequences at the end of the day. It is time Nigerian courts take a hard look at some of the principles of electoral jurisprudence that are aiding and abetting the rigging and imposition of people duly rejected at the polls but wrongly announced and imposed by the electoral body. Are the judgments retaining virtually all the people announced, evidence of a free, fair and credible elections in Nigeria. I do not think so. To see these judgments as evidence of free, fair, and credible elections in Nigeria is a deception too far grievous to be practised. Democracy needs to be saved and served in Nigeria. It needs to be sustained too.

I think the kind of electoral judgments from our courts which in most cases are devoid of justice has made many people to lose hope in the potential good and purpose of justice and democracy in the Nigerian State. Any justice system that does not produced proportional fairness and quality justice to the vast majority of the people in the society cannot be described as justice. In any society where only, the few enjoyed arid and coloured quick justice dished out by those who are paid to give pure and undiluted justice cannot enjoy peace. There are laws in Nigeria to give pure and undiluted quick electoral justice to Nigerians. But these laws are being administered in most cases in the most unjust manner and in the most inhuman ways that the poor and the lowly in Nigeria know that there is no justice in Nigeria’s democratic journey.

As it is with everything the hopes of the people in the judiciary who have constitutional roles to play in the determination of the electoral disputes seemed to have been dashed. Many people have openly expressed frustrations that nothing good will come from the judiciary again. As a strong believer in the integrity and impartiality of our judiciary institution I have hope that our judiciary are not deaf and dumb not to appreciate the need to ensure that the rights things are done. The facts of rascality of our political actors are too notorious to be ignored by our judiciary.

The primary duty of the judiciary is to interpret the law and not to dabble into political partisanship in the consideration of matters before them. I believe that as a nation the judiciary is the light that must shine in darkness and not allow darkness to overcome it in its constitutional role of adjudication. Nigerian judiciary must be ready to do what it is set up to do in deepen democracy given the controversies trailed the conduct of elections in Nigeria. Many have cast doubts on the capacity of the judiciary to be above board given, many controversies that attended to some decisions in some political cases.

This should not be so. The role of the judiciary, particularly through election tribunals, is indispensable for upholding democratic principles in Nigeria. The judiciary ensures the fair resolution of electoral disputes, upholds the rule of law, promotes accountability, safeguards democratic values, boosts public confidence in democracy, and sets legal precedents for the future. The commitment of the judiciary to these responsibilities is crucial in securing a robust and thriving democracy in Nigeria, where the voice of the people is respected, and the democratic process is transparent and just.

Our electoral jurisprudence needs to be looked deeply into by our judiciary. The old orders and some archaic precedents and principles that put road blocks to democratic growth and development must be departed from and new set of rules to guide the political behaviours of our political class must be set. The innovations introduced by the BVAS accreditation and uploading of elections results at the polling units to ensure transparent democratic processes must be given the correct interpretation to ensure the sanctity of our democratic sanity. Electronic evidence in section 84 of the Evidence Act and the use of Technology must be giving prominent pride of place to avoid old and analogue requirements of calling polling units by polling units evidence in proof of electoral malpractices. The Supreme Court itself has acknowledged the need for the use of technology in our electoral jurisprudence.

His Lordship Abba Aji JSC put the point more pungent in his contributory judgment in the case of Atiku vs INEC and Ors (2023) 19 NWLR (Pt.1917) 761 at 876-877, Paras. F-C., when his Lordship stated that: Modernity and technology stare us in the face, and we cannot turn back the hand of time. To go against the use of technology or electronic transmission or transfer of election results in this hi-tech time and period is to be an enemy of democracy and to stick to the vicious cycle of election rigging, manipulation, falsification and subterfuge. Sincerely, the enactment of the 2022 Electoral Act was greeted with much relief and celebration, because we thought it would put things right and Nigerians will have their legitimate mandates delivered to them. In fact, the use, ease, fastness, security, convenience, accuracy, betterment and comfort of the use and deployment of electronic gadgets and devices in elections and transmission/transfer of results cannot be overemphasized nor compared with the old, rugged, uncertain and insecure system of manual voting and transmission of results. Surely and I believe that the new Electoral Act came in to address and cure the mischief that bedevilled the old Electoral Act, by introducing electronic voting and transmission/transfer of votes which ought to have been adhered to by the commission, considering the promises and presentations in connection thereto the Electoral Act made by INEC to Nigerians and billions of Naira released for that purpose. I will also encourage that the Legislators should nip to the bud the issue of laxity and latitude given to the Commission to choose whichever method of transmission it wants; but adhere to a mandatory, clear and unarguable duty and obligation to be carried out by INEC via a clean and unambiguous status.

Nigerian judiciary must move from the analogue jurisprudence to digital jurisprudence where the use of technological devices to resolve electoral disputes are welcome and deeply encouraged. No one needs to be physically present in Zamfara, Lagos, Enugu, Edo, and Rivers for instance to see what goes on in those states and others states on election days given the abilities of our technological devices that has made the world a global village. Nigerian judiciary and Judges have been given grave constitutional responsibilities under the constitution to determine disputes between persons and institutions and government and individuals. The job of adjudication is complex. But to do so the judex must be neutral and impartial. No judge who knows or had reasons to know that he is closely related to any of the parties in political dispute or any dispute at all or has been approached by proxy by any of the parties in litigation should accept to sit and adjudicate. 

Judicial officers are not politicians. Partiality is not part of the good attributes of a Judge. That is what Niki Tobi JSC as he then was said. Let me quote his Lordship, Niki Tobi JSC, as he then was in the case of General Muhammadu Buhari vs. Independent National Electoral Commission & Ors (2008) LPELR-814(SC) at PP.145-146, paras C-D where his Lordship in the most admirable fashion of judicial erudition said: I see from Exhibit EP2/34 the need for Nigerian Judges to maintain a very big distance from politics and politicians. Our Constitution forbids any mingling. As Judges, we must obey the Constitution. The two professions do not meet and will never meet at all in our democracy in the discharge of their functions. While politics as a profession is fully and totally based on partiality, most of the time, judgeship as a profession is fully and totally based on impartiality, the opposite of partiality. Bias is the trade mark of politicians. Non-bias is the trade mark of the Judge. That again creates a scenario of superlatives in the realm of opposites. Therefore, the expressions, “politician” and “Judge” are opposites, so to say, in their functional contents as above; though not in their ordinary dictionary meaning. Their waters never meet in the same way Rivers Niger and Benue meet at the confluence near Lokoja. If they meet, the victim will be democracy most of the time and that will be bad for sovereign Nigeria. And so, Judges should, on no account, dance to the music played by politicians because that will completely destroy their role as independent umpires in the judicial process. Let no Judge flirt with politicians in the performance of their constitutional adjudicatory functions. When I say this, I must also say that I have nothing against politicians. They are our brothers and sisters in our homes. One can hardly find in any Nigerian community or family without them. There cannot be democracy without them and we need democracy; not despotism, oligarchy and totalitarianism. They are jolly good fellows. The only point I am making is that their professional tools are different from ours and the Nigerian Judge should know this before he finds himself or falls into a mirage where he cannot retrace his steps to administer justice. That type of misfortune can fall on him if the National Judicial Council gets annoyed of his conduct. Ours are not theirs. Theirs are not ours. I will not say more. I will not say less too. So be it.

What else can I say. This admonition by his lordship is evergreen and Nigerian judges need to be constantly kept abreast of it. It is time I submit to us that the oaths of office of Nigerian judges should be held sacrosanct. The image of the judiciary is on trial in the eyes of reasonable men and women in Nigeria. The Nigerian judiciary must not disappoint the nation. The judiciary cannot continue to approve deliberate breaches of our rules and regulations in elections on the platform of substantial compliance.  Any substantial compliance with faulty foundations cannot be treated as substantial compliance. After all, if the foundation be destroyed what can be righteously built on it to produce the principle of substantial compliance. The judiciary must be ready to order the demolition of superstructure erected on faulty foundations to produce winners in the elections in Nigeria and to instil political sanity in our political system and to ensure democratic growth and sustainability.

No court worth it’s salts should approve barbaric conduct that produced winners of elections in democracy on the principle of substantial compliance that will continue to encourage brigandage and hooliganism as parts of Nigerian brand of democracy. Our courts must resist the temptations of encouraging the continued use of thuggery as parts of Nigerian democratic culture and values. Nigerians must not be seen as primitive in the comity of democratic nations.

There is no need celebrating technical victory or justice because in the long run those principles will turn around to hurt all of us. Part of the reasons why both the executive and legislative arms of government treat Nigerians with contempt and disdain is because we have electoral system that does not serve the people with pure and undiluted justice. For instance, if any one who is led to believe that the processes that produced political actors are being done or run in breach of the overall interest of the people and are contrary to law and constitution are allowed to ventilate such grievances without being denied a hearing on the basis of lack of locus standi or of not being a member of the political parties or of not having taken part in the primaries that produced the candidates or such stuffs, those who put themselves forward to run for positions in governments will behave well. But most causes and matters are always denied opportunity of merit-based hearing because of these and other anachronistic legal jargons that do not give justice to the Nigerian people.

The popular held beliefs of most Nigerians today outside of the legal profession is that the judiciary and our judges are not free from political and societal influences and that justice in Nigeria is for the highest bidders or those who have the means of production. Whether that is true or not is outside my power to conclude. But where people begin to think that the judex is compromised or that justice is not served or that judgments delivered go against facts that are too notorious to be denied, then the confidence of the people in the judicial processes is thus eroded. That is why it is said that justice is rooted in confidence and where right-thinking members of the society are led to hold the notion that the judex has been compromised, then justice is thereby denied.

Parliament seems to believe that demonstration of documents and calling of polling unit by polling unit agents in proof of electoral malfeasances may not be necessary again. That is why section 137 of the Electoral Act 2022 was enacted. Paragraph 46(4) of the 1st schedule to the Electoral Act 2022 speaks that documents tendered from the Bar are deemed demonstrated. But it appears the Supreme Court will have none of this. The Supreme Court seems not ready to give stamp of authority to the noble intention of parliament. It is still insisting that the old orders must prevail. See the case of Jibrin Mohammed Barde vs INEC and Ors (2024) LPELR-61647 (SC).

To underscore the point, I am struggling to make, it is necessary to quote the views of their lordships in this case which is the latest decision on this point. Let me start with what their lordships said in the lead judgment. This is what their lordships said at PP. 43-48, paras. E-A of the report: The third issue or ground of non-compliance is the contention that polling unit results (Form EC8A) were not signed, stamped, or dated in respect of 347 polling units. Proof of this complaint revolves around the Form EC8As tendered from the Bar by the appellants. The trial Tribunal held and the lower Court agreed that the documents were dumped on the Tribunal without being demonstrated or linked to any aspect of the appellant’s case. The appellants contend before us that the documents could not have been dumped on the Tribunal having regard to the fact that it was agreed at the pre-hearing session that the documents could be tendered from the Bar, and further that by virtue of Section 137 of the Electoral Act, oral evidence was not necessary where the documents manifestly disclose the non-compliance alleged. Section 137 of the Electoral Act, 2022 provides: “137. It shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance” The application of this section was considered in Oyetola Vs INEC (supra) and Abubakar Atiku Vs INEC (supra). In Abubakar Atiku Vs INEC, His Lordship, Okoro, JSC held thus: “… The above provision has not absolved a petitioner of the need to lead credible evidence to prove non-compliance. It states clearly that oral evidence may not be necessary if and only if on finals or certified true copies manifestly disclose non-compliance.” His Lordship, Jauro, JSC expressed a similar opinion in Oyetola Vs INEC (supra). The consistent position of this Court against the dumping of documents has always been to protect and maintain the integrity of the Court as an unbiased umpire. A Court is not expected to engage in an investigation of documents/evidence tendered by a party in the recess of its chambers which have not been demonstrated in open Court. To do so would reduce the Judge from his lofty height above the fray to the dust of conflict below. In Action Congress of Nigeria Vs Lamido (2012) ALL FWLR (Pt,630) 1316; (2012) 8 NWLR (Pt.1303) 560, His Lordship Fabiyi, JSC stated thus: “The basic aim of tendering documents in bulk is to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents. It is not the duty of a Court or Tribunal to embark upon cloistered justice by making enquiries into the case outside the open Court, not even by examination of documents which were in evidence but not examined in the open Court. A Judge is an adjudicator, not an investigator.” See also Ladoja Vs Ajimobi (2016) 10 NWLR (Pt, 1519) 87; Ogboru Vs Okowa (supra); Omisore Vs Aregbesola (2015) 15 NWLR (Pt. 1482) 205. It is noteworthy that the 1st appellant (PW1) was the appellants’ only surviving witness. It is also evident, as noted by the lower Court at pages 14100 – 14102 Vol. 25 of the record that having tendered their documents from the Bar, the appellants “…acted under an erroneous impression that they were immunized by Section 137 of the Electoral Act from adducing further evidence before the Tribunal. They had the most erroneous assumption of the very essence of Section 137 of the Electoral Act, 2022, which they indirectly believed relieved them of the imperative duty placed upon them by the Evidence Act to establish their case via concrete documentary evidence and eye witness accounts. … They relied on the case of Oyetola Vs INEC & Ors. (supra) where it was held that it shall not be necessary for a party who alleges non-compliance …to call oral evidence if originals or certified true copies manifestly disclose non-compliance. This assumption is absolutely wrong in law as they were required to adduce cogent and credible evidence where the non-compliance complained of is not manifest on the face of the documents tendered.” I have examined the record and I agree with the two lower Courts that the appellants’ documents were dumped on the Tribunal without being demonstrated. Section 137 of the Electoral Act, 2022 was seen as a saviour, absolving them of the need to properly link any of the bulk of documents tendered to specific aspects of their case. They expected the Tribunal to retire to chambers and scrutinize the documents one by one to determine which one supports a particular aspect of their case. This is not the duty of the Court. Besides, the appellants have the burden of proving that the alleged non-compliance substantially affected the outcome of the election. Under cross-examination, as observed by the lower Court, PW1 was unable to state how many Form EC8As were not signed, stamped, or dated in Akko, Dukku, Gombe and Balanga Local Government Areas. The appellants have failed to show that the two lower Courts erred in their findings on this issue.

Again at PP. 51-53, paras. D-C of the report the Supreme Court said that: Among other issues, the appeal has brought up in issues 3 and 4, the interpretation and application of the provisions of the new Section 137 of the Electoral Act and Paragraph 46(4) of the 1st Schedule to the Act to documents admitted in evidence from the Bar either with or without objection and the requirements for the proof of the allegation of overvoting as a specie of non-compliance with the provisions of the Electoral Act in the conduct of an election. These topical issues have been pronounced up in and determined conclusively by this Court in the case of Oyetola v. INEC (2023) 11 NWLR (pt. 1894) 125 and subsequent decisions on the issues to now make the binding position of this Court unequivocal and manifestly clear to all parties and counsel involved in election litigations before Election Tribunals or Courts. By the established principle of stare decisions, this Court and all other Courts below it are bound by and have a duty to apply the extant decisions, which are in rem, for being on interpretation of statutory provisions. See Kawawu v. PDP (2017) 3 NWLR (pt. 1553) 420 (SC), Kalejaiye v. L.P.D.C. (2019) 8 NWLR (pt. 1674) 365 (SC), Jev v. lyortom (2015)15 NWLR (pt.1483) 484 (SC), FBN, Plc. V. Maiwada (2013) All FWLR (pt. 661) 1433 (SC). I should emphasize that for documents tendered from the Bar to be of any use and help to the person relying on them, they must be identified and related to the specific aspect of the non-compliance alleged by evidence of the witnesses for the duty of the tribunal on Court to arise under and by virtue of the provisions in Section 137 of the Electoral Act and for the benefit under Paragraph 46 (4) of the 1st Schedule to the Act, to inure. It would be practically impossible and cloistered justice for a Court or Tribunal to embark on a search or investigation of the usually tons of documents tendered in bulk from the Bar in order to fish out which ones related to a particular species of the non- compliance alleged and in respect of which they were intended to prove. Investigation is not part of the duty of a Court or Tribunal. See Tunji v. Bamidele (2012) 12 NWLR (pt. 1315) 477, B.L.L.S. Co. Ltd. v. MV. Western Star (2019) 9 NWLR (pt. 1678) 489 (SC). There must be evidence of a link or connection between the documents and the identified non-compliance alleged otherwise the documents would remain dead without a voice and be deemed to be dumped on the Court or Tribunal.

The views of their lordships cited above run contrary to section 137 of the Electoral Act 2022. It also runs contrary to Paragraph 46(4) of the 1st schedule to the Electoral Act 2022. Their lordships had in other cases held themselves bound by the provisions of the schedule to the Electoral Act 2022. While at one point the court seems to find ways to ignore the demands of law on the judiciary in electoral matters, at another point the same judiciary appears to ignore the sacred duty placed on it by law. This has given the members of the public the audacity to insinuate and make all manner of guesses. Why is it that in elections petition cases our judges will be insisting and demanding that you call polling unit by polling unit agents to give evidence when in most cases the violence and thuggery associated with elections are so obvious that even the blind and the deaf know what politicians do in our elections.

The pretences of our judicial system to deal frontally with real issues in cases that have come before the courts is gradually and almost killing our practice of democracy. The brand of democracy being encouraged by our legal system seem to me to be completely different from the kind of democracy we copied from the civilised world. Nigeria is about the only country I know where wrong doers dared you to go to court because they knew or have reasons to know that to get justice in our unjust system is like a camel going through the eyes of the needle. I think the judiciary has the burdened duty to show the light for others to follow for overall development of our nation Nigeria. Why should courts not look at documents tendered before it to see the complaints of non-compliance made by the petitioners? In my view and with profound respect, doing so does not turn the judex investigators. No, it does not.

There are several decisions of the Supreme Court and the Court of Appeal that said that it is the duty of the court to examine documents tendered before it. That is the duty parliament has placed on the courts and or tribunals in section 137 of the Electoral Act 2022. Paragraph 46(4) of the 1st schedule to the Electoral Act 2022, made away with the requirements of demonstration of documents tendered. The Supreme Court in the case of United Bank for Africa Plc vs. Btl Industries Ltd (2006) LPELR-3404(SC) held that it is the duty of courts to consider all relevant exhibits before them. My lord Tabai, JSC, as he then was in his contribution at PP. 104-105, paras. C-A, of the report made the point that: “…The above is a fairly detailed analysis of the specific documentary exhibit about which non-evaluation, the appellant complained. The documents together constitute an integral part of the defence of the appellant and the trial court had no reason whatsoever not to consider them. The trial court and indeed the Court of Appeal had a duty to carefully consider them. See Akeredolu v. Akinremi (1989) 3 NWLR (Pt. 108) 164; Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275; Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426. There is nothing on the record to show that these documents on which the appellant relied so heavily were given the due consideration they deserved. The appellant thus had good cause to complain. The Court of Appeal appears to have also fallen into the same error of not considering the exhibits. This court has a duty to examine these documents and that is what I have done. See Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 159; Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1.

In Mohammed vs. Abdulkadir (2008) 4 NWLR Part 1076 page 111 at 156- 157, it was held that: A trial Court has the onerous duty of considering all documents placed before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comment or act on it. Documents are not tendered merely for the sake of tendering but for the purpose of examination and evaluation.

In Rev. Amos Kumai Yohanna & Anor vs. Ishaku Elisha Cliff & Ors (2023) LPELR-61169(CA), Nwosu-Iheme, JCA, now JSC at PP. 17-19, paras. E-C, held that: “Despite all these, the Courts and Tribunals have a duty to examine the contents of all relevant documents tendered in evidence before them. Paragraph 46(4) 1st Schedule Electoral Act, 2022 provides: “Documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open Court and the parties in the petition shall be entitled to address and urge argument on the content of the document and the Tribunal or Court shall scrutinize or investigate the content of the document as part of the process of ascribing probative value to the documents or otherwise.” In NAGOGO V. CONGRESS FOR PROGRESSIVE CHANGE (2013) ALL FWLR (PT 685) 272 at 307 (SC) cited by learned counsel for the Appellants at page 13 of his brief, the Supreme Court, per Tabai, JSC held thus: “A Court cannot pretend not to see a document before it, particularly when such document is germane to the justiciable resolution of the issue in contention”. Having overruled the objection raised by the Respondents to the admissibility of the documents, the Tribunal had no reason or justification not to examine and/or scrutinize the polling unit result forms and the collation result forms which were properly admitted in evidence. The failure by the Tribunal to perform this all-important function bestowed on it has resulted in fatal consequences. In ARABAMBI V. A. B. I. (2005) 19 NWLR (PT 959) PG 1 at 29, the Supreme Court, per Mukhtar, JSC (as he then was) held as follows; “… A trial Judge whilst evaluating evidence is at liberty to examine and peruse most carefully documents and oral evidence before him that is part of his judicial function and if he fails to do so, then he is failing in his duty. In fact, even where necessary a Judge ought to comb any crucial evidence before him with the finest tooth comb to ensure that credible and reliable evidence is ascertained and applied towards the just determination of the case.

In the same Rev. Amos Kumai Yohanna & Anor vs. Ishaku Elisha Cliff & Ors (supra) his lordship Nwosu-Iheme, JCA as he then was, now JSC made the points clearer at PP. 19-22, paras. E-A, that: Having tendered the Result forms of the polling units complained of, the Appellants were not expected to call further witnesses of even their party Agents as there was nothing that they could have said on alterations, cancellations, and adjustments of entries which were manifest and apparent on the face of the documents. Section 137 of the Electoral Act 2022 relieves a party the burden of calling oral evidence if the originals or Certified True Copies of the documents tendered manifestly disclose the non-compliance alleged. The Tribunal ought to have taken advantage of provisions of this nature as provided under the Electoral Act, 2022. For the sake of emphasis, the said Section 137 of the Electoral Act, 2022 is reproduced. It provides as follows: “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.” It is therefore clear from the above provisions of Section 137 of the Electoral Act, 2022 that the said section applies only where the non-compliance alleged is manifest on the originals or Certified True Copies of documents relied on. This case is therefore in my humble view a typical example where Section 137 of the Electoral Act, 2022 is available to the Petitioner (Appellant herein) and I so hold. Let me state with humility that the case of OYETOLA & ANOR V. INEC & ORS. (supra) decided by the Apex Court did not in any way diminish the potency of Section 137 of the Electoral Act 2022. The said section is statutory, it is also clear and unambiguous. It was introduced to cushion the uphill task expected from the petitioner to also call witnesses even when the non-compliance complained of is glaring, clear, obvious, manifest and stirring the Courts or the Tribunals on the face. To jettison the use of Section 137 even when the petitioner had labored to produce the originals or Certified True Copies of documents in proof of the non-compliance complained of is to throw away the mischief which Section 137 of the Electoral Act was introduced to cure. It will also encourage the Respondent, particularly the Electoral Umpire (INEC) to get away with electoral blunder and thereby making a mockery of our electoral process. It will in, turn create the erroneous impression that our Judges are not only helpless but also toothless bull dogs. We must refrain from creating the impression that when petitioners throng our Courts and Tribunals crying for justice and seeking to ventilate their grievances that they are on a mission impossible and searching for the legs of a snake which in fact do not exist.

It is hoped that the Supreme Court will take a second look at its decisions in electoral jurisprudence and then save the embarrassing situations that make the public think that the judiciary has been pocketed. Today, our justice system has developed some principles of law that have constantly and consistently denied justice to the people who seek justice at the seat of justice. Democracy in the manner it is being practised today in Nigeria is far from the ideas of the founding fathers of democracy.  The judiciary has huge responsibilities for developments and sustainable democracy in Nigeria.

I think the legal profession and Nigerian lawyers and judges must be careful not to use technicality to destroy democracy in Nigeria. In any society the judiciary is the most important arm of government. The judiciary is so important for the maintenance and sustenance of democracy. Where the judiciary and the legal profession abdicate their responsibilities on the altar of technicality, democracy will suffer shipwreck. Nigerians are worried that the legal profession is not living up to its responsibility in upholding defending the rule of law. Before now, the Nigerian Supreme Court has always said that technicality should be avoided in judgment and in litigation. 

This is what the Supreme Court said: 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 PDP. What benefit will such a declaration confer on Amaechi? Now in Packer v. Packer (1954) P.15 at 22, Denning F 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 act anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.” The Supreme Court in Nigeria has followed the same approach. In Engineering Enterprises Contractor Company of Nigeria v. Attorney-General of Kaduna State (1987) 1 N.S.C.C 601 at 613; (1987) 2 NWLR (Pt. 57) 381, Eso, J.S.C. observed: – “One stream that permeates through all these decisions, and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force, and action of the Court. I am not saying that ex debito justiciae, by itself is a cause of action, it is to be the basis for the operation of the Court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.” 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.” Per Oguntade, JSC, as he then was at PP. 67-68, paras. D-E, in Rt. Hon. Rotimi Chibuike Amaechi vs. Independent National Electoral Commission & Ors (2008) LPELR-446(SC).

It is sad that today, technicality has overshadowed the purity of legal practice and justice in Nigeria. We have decided to close our eyes to what is wrong and our democracy suffers from this. Judgments must hold those violate democratic principles on the road to power accountable otherwise democracy in Nigeria is heading to freedom for gunshots democracy where the mighty will be the winner of elections and sovereignty of the people castrated forever. The brand of democracy practiced in Nigeria is self-centred and anti-people. For me democracy in Nigeria revolves around the interest and welfare of the politicians and their cronies. That is why politicians have no respect for law and order. If Nigerian democracy fails, it is the legal profession that kills it. I said this because the responsibility to decide and determine electoral disputes either pre – or post arising out of the practice of democracy has been handed over to the legal profession by lawmakers. 

This is evident in the constitution section 285 thereof and the relevant provisions of the Electoral Act. The lawmakers know that rationality is always not the good attribute of political actors. Political actors, in most cases, act irrationally. That is what leads to disputes to be resolved by the judiciary made up of members of the legal profession. The legal profession all over the world is seen as a profession of light, which ought to be populated by men and women of integrity and honest disposition. The legal profession is made up of the bar and the bench. The bar and the bench hold the knife and sword to repair or to mar democracy in Nigeria by the way and manner it propounded, pronounced and interpreted our electoral laws.

As for political class, they have no set standards of boundaries in politics. Anything that advances their selfish political interests is legal and legitimate for them. That is why even those you expected civility from in most cases behaved so unruly and uncivil to the irritation of rationality. In the Nigerian brand of democracy loyalty is to the power that be and not to the law and the constitution. That is why you see political actors behave anyhow. But, the ethical codes for the bar and the bench have no room to tolerate irrationality and wayward behaviour. And I think that is why parliament and our lawmakers set a department of legal technicians with set codes to decide electoral disputes.

While partiality is the hallmark of political philosophy of politicians, impartiality and rationality rooted in purity of justice are the attributes of the legal profession. For the legal profession to be seen to be relevant and save Nigerian democracy from hitting the rock and ultimate dictatorship, the judiciary must avoid giving coloured and jaundiced interpretations to our laws that have the potential and possibility of retaining in power those who disregard and disrespect our democratic process with audacity of arrogance rooted in arbitrariness. If the legal profession in conspiracy with itself decides to sanction breaches of democratic principles in the guise of coloured and jaundice interpretations to sustain partisan interests, then democracy will be in danger and may head to calamitous end. In all, both the political class and the legal profession will be ruled in the state of nature where life will become so brutish, shortish, and nasty. That will be so bad for the greatness happiness of the greatest number of Nigerians.

It is on this plank that I charge the legal profession in Nigeria to have a serious rethink of the kind of principles of law it propounds and interprets in electoral disputes. Nigerians are worried, and the legal profession needs to be careful not to make itself the enemy of rational thinking Nigerians. Nigerians are tired of wayward adjudications in electoral disputes, and they want purposeful adjudication that enhances and promotes healthy democratic growth and development in Nigeria. That is the plea of rational thinking members of Nigerian society.

Let me say that the Nigerian judiciary holds the fundamental and vital key to the growth and sustainable democracy. Its decisions can encourage democratic growth and development. It can also mar sustainable democracy. For the judiciary to be seen and to continued to contribute to the growth and sustainable developments of Nigerian democracy, it must avoid technical justice that does not addressed the monumental electoral frauds being funded and encouraged by Nigerian political actors.

Mbaba JCA, articulated the views I hold in the case of Umar & Anor vs Sokoto & Ors (2023) LPELR 61356 CA, where his Lordship who presided in the panel that heard the appeal made profound erudite statements that resonate with justice and my own understanding of justice. Because of the importance attached to his lordship’s view, permit me to quote him in extenso. 

This is what the erudite jurist said: “The decision of the Tribunal was predicated on the evidence that the PW29, PW30 and PW31, being subpoenaed witnesses, did not have frontloaded statements on oaths filed with the Petition within 21 days, pursuant to Paragraph 4(5) of the First Schedule to the Electoral Act; and that there was no dichotomy between an ordinary witness and a subpoenaed witness, with regards to the need to frontload evidence within the required timeframe. This issue has become quite a topical and thorny one, in this dispensation of election cycles. Before this time, opinion appeared to favour the reasoning that demanding a subpoenaed witness to have frontloaded his statement on oath, with the Petition, before being qualified to give evidence, was to demand for an impossibility, especially where the subpoenaed witness belonged to the opposite camp and would not willingly volunteer his evidence on oath, for obvious reasons, and that within 21 days the Petitioner is mandated to file his Petition. Of course, it is a known fact that where the opposite camp is required to give evidence, or to produce vital document, needed to decide the case in favour of an opponent (the Petitioner), it is certain that the witness would gladly decline to do so, and would frustrate the Petitioner in the process to get justice. Thus, in my view, it amounts to asking for the impossible, to expect some subpoenaed witness to frontload their evidence with the election Petition. And that would enthrone denial of fair hearing. See the case of Hamisu vs Abacha & Anor (2023) LPELR – 60476 CA, where it was held: “There are two types of subpoena and a witness may either be subpoenaed to testify, or to tender documents. A witness can also be subpoenaed to tender document and testify. PW1 is clear was subpoenaed to tender documents and he was cross-examined by the Appellant on the documents so tendered. There is nowhere that a witness subpoenaed is obligated to have a written statement on oath.” Per HASSAN, JCA (P. 31, paras. C-E) See also the case of Isah Bashir & Anor Vs Kurdula & Ors (2019) LPELR – 48473 CA, where my Lord Wambai, JCA extensively considered the issue as follows: It is my firm belief that the Electoral Act would not have contemplated a scenario where a petitioner would be expected, nay, required, to frontload the deposition of his adversary or that the adversary will willingly without any collusion or illegality, depose to a statement in favour of the petitioner. Since the Respondents are mandated by law to defend the petition. “It cannot be within the estimation of the law, in a normal situation, that a respondent will actively take deliberate steps or actions in support or proof of his opponent’s case. I believe strongly, that it cannot be the intendment of the 1st Schedule or the Practice Direction that a Respondent in an election petition will voluntarily make a deposition on Oath in favour of the petitioner for frontloading or to require a Respondent at any stage of the trial to voluntarily make any such deposition in favour of the petitioner. This is more so that statutorily, a Respondent in an election petition is mandated to defend and not to support the petition. The law commands that which is reasonable and possible and not what is illogical or naturally impossible. Thus, the legal maxim “lex non cogit ad impossibilia” “the law does not command the impossible” applies here. It follows that the Respondent can only testify for a petitioner if compelled to do so by a subpoena. This is the import of the Appellant’s application for the issuance of “subpoena duces tecum ad testificandum” to compel, through the instrumentality of the subpoena, the subpoenaed witnesses to testify on their behalf, a function which the subpoena is intended to perform. It is to be noted that a subpoena is a Court process commanding any person to attend to Court and produce a document or evidence before it. In his explanation of a subpoena, Kekere-Ekun JCA (as he then was) in Omidiran vs. Patricia Etteh (supra) held thus to say: – “A subpoena is a formal document issued by the Court commanding a person required by a party to a suit to attend the Court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party as evidence or for both purposes.” Let me say here that the question thrown up by the scenario in this appeal is not novel. It is a scenario upon which this Court has spoken and it did so eloquently through Ogunbiyi, JCA (as he then was) in the case of Lasun vs. Awoyemi and Kekere-Ekun, JCA (as he then was) in the case of Omidiran vs. Patricia Etteh (Olubunmi) (supra). Ogunbiyi, JCA (as he then was) in his characteristic manner succinctly held inter alia: – “It cannot therefore be within the contemplation of the Practice Directions that the respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent.” In respect of such a Respondent subpoenaed by the Tribunal at the instance of the Tribunal, his lordship continued: “By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined. The authority in the case of Onyemelukwe v. Alberto [2001] All FWLR (Part 83) 2166 at 6184 is relevant…” See also the case of Muhammad Bashir Olatunji Ibrahim vs. Olatunji Adende Ogunleye & Ors (2010) LPELR-4556(CA) per Adumein, JCA. It follows that the provisions of Paragraph 4(5)(i)(b) and 41(3) of the 1st Schedule of the requirement of frontloading witnesses’ deposition on Oath only contemplates willing and voluntarily witnesses who elect out of their volition to testify for the petitioner. They do not and cannot be contemplated or intended to apply to witnesses who are compelled by an order of Court through a subpoena duces tecum ad testificandum, to testify before the Tribunal, as it is not logical to expect such subpoenaed witnesses who are Respondents to the petition to prepare witness deposition to aid the case of his adversary. Any such expectation will go beyond the realm of any reasonable logic. Of course, the above position and concern appear to have been overthrown by the latest decisions of this Court and of Apex Court in the case of Obi Vs INEC & Ors: CA/PEPC/3/2023 delivered on 6/9/2023, (and affirmed by the Supreme Court) which the Tribunal had relied on to hold as follows: “In this case, the Court of Appeal reviewed the various decisions of the Court on this and concluded that the Supreme Court’s decision in the case of Oke V Mimiko (No.1) (2014) 1 NWLR (Pt.1388) 225 represents the position of the law. And that is in an election Petition a witness cannot testify if his deposition on oath was not frontloaded at the time of filing the Petition. We therefore hold that PW29, PW30 and PW31 are not competent to testify and their testimonies before the Tribunal are expunged from the record. The objection to this effect is upheld and sustained (Page 3389 of the Records of Appeal). See also Atiku Abubakar & Anor Vs INEC & 2 Ors: SC/CV/935/2023, where the Apex Court held that by Section 285(5) of the Constitution of the FRN, 1999; Paragraphs 4(5) and 14(2) and 41(3) of the First Schedule to the Electoral Act, 2022, a witness must be listed in the Petition or Reply and his deposition frontloaded in the Petition or Reply before he can testify before a Tribunal in support of a party. Of course, the Apex Court had added that the requirement to frontload a witness statement (whether ordinary or subpoenaed witness) along with the Petition, filed within 21 days of declaration of winner of an election, is mandatory in election Petition. That is the settled position of the law, for now, notwithstanding the fears, concerns and worries discussed by my Lord, Wambai JCA in Bashir Vs Kurdula (supra), and discussed above. This Court is bound by that latest position of the law. And with that decision, the proverbial fear of “throwing away the baby with bath water”, appears to be permitted as the evidence and the documents (Exhibits) produced by the said witnesses PW29, PW30, and PW31 and the documents they produced stand rejected and expunged from the Records! Thus, despite the fact that the PW29 and PW30 were officers of the 4th Respondent, and the documents they produced would have been relevant to the trial, and presumed under Section 137 of the Electoral Act, 2022, the said documents have been defiled by means of the virus of the incompetent witnesses, who produced them, unfortunately! The decision of the Apex Court had explained that the requirement of frontloading of subpoenaed witness statement on oath, applies to Elections Petition and may not apply to other civil causes, and that is because of the sui generis nature of Election matters. I respectfully opine that the phrase, sui generis, which also applies to Fundamental Right actions, sometimes appear to be employed, unfortunately, as euphemism for injustice and enthronement of undue technicalities, as opposed to doing substantial justice. See Obisi Vs Chief of Naval Staff (2004) LPELR – 2184 (SC); Omoju Vs FRN (2008) LPELR – 2647 (SC), where it was held: “Courts of law have long moved away from the domain or terrain of doing technical justice to doing substantial justice. This is because technical justice, in reality, is not justice but a caricature of it. It is justice in inverted comas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy. See generally State v. Gwato (1983) 1 SCNLR 142; Union Bank of Nigeria Plc v. Ikwem (2000) 3 NWLR (Pt. 648) 223; Sha v. Kwan (2000) 8 NWLR (Pt. 670) 685; Adebayo v. Okonkwo (2002) 8 NWLR (Pt. 768) 1; Asims (Nig.) Limited v. Lower Benue River Basin (2002) 8 NWLR (Pt. 769) 349; Afro-Continental (Nigeria) Ltd. v. Co-operative Association of Professionals Inc. (2003) 5 NWLR (Pt. 815) 303.” Per TOBI, JSC (Pp. 14-15, paras. D-B) Section 137 of the Electoral Act, 2022 says: “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.

There is nothing more useful I can add to the views expressed by their Lordships of both the Court of Appeal and the Supreme quoted hereof by his Lordship Mbaba JCA as referred to above. Sui generis nature of election petition can not and must not make justice subservient to doing of substantial justice.  No, it should not and must not. I feel the Supreme Court has a duty and responsibility to set precedents in aid of justice and not in slaughtering it on the altar of technicalities. That in the words of Niki Tobi JSC as he then was will be caricature. See Afro-Continental (Nigeria) Ltd. vs. Co-operative Association of Professionals Inc (2003) 5 NWLR (Pt. 815) 303 at PP.14-15, paras.

My arguments on the Courts doing substantial justice are not new invention by me. No, the Supreme and the Court of Appeal have in many of their decisions warned about resort to technicalities in proceedings including election petition cases. His lordship, Oguntade JSC as he then was spoke extensively on this point in Amechi vs INEC (2008) LPELR-446(SC) at PP.67-68, when his Lordship made it clear that: “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 PDP. What benefit will such a declaration confer on Amaechi? Now in Packer v. Packer (1954) P.15 at 22, Denning F 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 act anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.” The Supreme Court in Nigeria has followed the same approach. In Engineering Enterprises Contractor Company of Nigeria v. Attorney-General of Kaduna State (1987) 1 N.S.C.C 601 at 613; (1987) 2 NWLR (Pt. 57) 381, Eso, J.S.C. observed:- “One stream that permeates through all these decisions, and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force, and action of the Court. I am not saying that ex debito justiciae, by itself is a cause of action, it is to be the basis for the operation of the Court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.” 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.

In Inakoju vs Adeleke (2007) LPELR-1510(SC), the Supreme Court spoke clearly on the need to avoid technical justice in our courts. This is what Niki Tobi JSC as he then was now of blessed memory said at 124-125 paras C-A of the report: For quite some time now, this Court has moved from the regime or domain of doing technical justice to the regime or domain of doing substantial justice. This is in keeping with the jurisprudence of the wider world and its legal system. The need for court of law to do substantial justice becomes more imperative when considering the provisions of the Constitution, the fons et origo of any democracy. In Attorney-General of Bendel State v. Attorney- General of the Federation (1982) 3 NCLR 1, Idigbe, JSC, said at page 68: “I incline to the view that in suits calling for decisions on issues relating to the Constitution this court ought not unduly to allow technicalities to deter it from making vital pronouncements.” Nnamani, JSC, added at pages 112-113: “If the plaintiff is entitled to be heard by this court how he comes to be heard may be immaterial. I do not agree that in a complex suit such as this touching on matters which lie at the very foundations of the stability of this country this court should be unduly bogged down by technicalities. This court has in many recent decisions, while affirming the importance of observance of Rules of Court, stated that it is more concerned with doing substantial justice between the parties.” The statement by Nnamani, JSC, is germane to this case when the learned Justice mentioned the stability of the country. The plethora of removal proceedings in respect of Governors is not only frightening but is capable of affecting the stability of Nigeria. It is almost like a child’s play as some State Legislatures indulge in it with all the ease and comfort like the way the English man sips his coffee on his breakfast table. Unless the situation is arrested, Nigerians will wake up one morning and look for where their country is. That should worry every good Nigerian. It does not only worry me; the idea frightens me so much. With the above parenthesis, I take the case of Famfa Oil Limited v. Attorney-General of the Federation (2003) 18 NWLR (Pt. 852). 453 where Iguh, JSC, said at pages 471 and 472: “I should perhaps mention in the above regard that this court for quite some time now has consistently shifted away from the narrow technical approach to justice which characterized some earlier decisions of courts on various matters and now pursues, instead, the course of substantial justice. Accordingly, courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with more technical procedural irregularities that occasion no miscarriage of justice.

CONCLUSION

In conclusion, the need to avoid technicality in electoral jurisprudence has been emphasized over and over again by the Supreme Court and the Court of Appeal prior now. It is not my invention. To underscore the points sought to be made, it will be necessary to refer in conclusion to the case of Osigwelem vs INEC and Ors (2008) LPELR-4805 (CA) at 25-28, where the point was made by the Court of Appeal that: Again, in a more recent case, concerning scores at an election this Court insisted on need of Court to eschew technicalities and substantial justice to the parties before it. This Court per Ikongbeh, JCA of blessed memory held thus: “I must repeat what I said in my contribution in WILLIAMS v TINUBU & ORS (unreported No. EPT/CA/L/03/03 decided on 18-07-03 regarding the increasing incidence of over-dependence on technicality in election petitions: – Indubitably an election petition is a matter sui generis and need to be disposed of as expeditiously as possible. That, with all due respect, is not an invitation to adopt the most cavalier method of dealing with it. The need for speedy disposal of the petition must be weighed against the wider need not only to do justice but also to be seen to be doing it, taking into consideration the nature of an election petition and what the entire process entails for the body polity. In this regard I would like to recall the words of wisdom and caution issued by Holden, J., DOGARAI v GWARZO & ORS (1985) NNLR 9 at 10 on this point.’ ‘If this were an ordinary civil action, I would have no hesitation in refusing the application. In a civil action, if the parties or their Counsel cannot take the trouble to get their application right, the Court shows them no mercy, but in an election petition we are not concerned with the interest and claims of private individuals. It has been alleged that the election in this constituency was not properly conducted. That is a matter in which the interest of the community is seriously concerned, and in which public interest completely over-shadows the interests of the individuals involved. It is necessary that the allegations of impropriety in the conduct of the election be enquired into and pronounced upon judicially, and no technicalities can be allowed to stand in the way of that injury. Accordingly, I will overlook the fact that this application is in the wrong form and without notice and without any supporting affidavits or reasons of any sort, and I will do-what I think best for the purpose of bringing this petition on for hearing, in spite of the mistakes of Counsel for the Petitioner.’ That decision was given under a different electoral law, but the same principle that was embodied in it has run through all electoral laws that we have had since, including the present one. Unhappily one cannot pretend to be unaware of the growing tendency in recent time among judges who are called upon to hear and determine election matters to shy away from this sacred duty of hiding behind technicalities. The Nigerian society is a very delicate one. There is nobody can honestly dispute this, widespread discontent. In my view, the best panacea for creating a peaceful and conducive atmosphere is to keep all avenues of ventilating grievances as wide open as possible. While we must work according to and within the provisions of the law and the rules, we must do all we can to avoid enthroning technicality above everything else, even, ray, especially in election petition matters.” (Underlining supplied for emphasis.) Not done yet, the erudite Jurist went on to hold that in the case of AJUDUA V. NWOGU No. 1 (2004) 16 NWLR (Pt.898) as follows:- “If what one reads in the press today is anything to go by, then we in the judiciary need urgently to look inward with a view to reversing the uncomplimentary views the people hold of us. One can hardly quarrel with Harry Nwana who warned that ‘Where a people are willfully injured by men in power, and they have no recourse to turn to for redress, it aggravates the injury. Such people can behave irrationally and may take it out on neither have nor their person. See Vanguard of Wednesday, 23-07-03 p.13.” He no doubt echoed the view of a great majority of Nigerians when he lamented and advised that- “If a revolution should occur in Nigeria, it may not be because injustice was done, but because no civilized legal redress is available to the injured. If and when that happens our judiciary and the politician who impede justice must hold themselves accountable. The politicians may do as they like, and their parties may abuse the system as they think fit but let it be known that when the judiciary is suffocated and the poor and lowly cannot look up to it for basis justice, the last hope of the common man would have been extinguished….” Election grouses should not be resolved on the same principle as those that govern civil complaints…. Facts should take precedence over legal jargon… The danger in, as it were, gagging those who feel aggrieved by throwing them out of the Tribunal or Court on technical grounds is that the grievance, real or imagined, is bottled up. When the bottle burst, the whole messy trouble will come spewing on us all, especially the poor. It is better to let all who feel aggrieved have their say on the substance of their complaint. If there is no substance in it then let them be so told after they have been heard unless, of course the non-compliance is so glaring as justify the premature termination of the hearing. The avoidable tension will then have been diffused.” I am of the firm view that though the Petitioner had not made the scores of the parties an issue in his petition even if he had done so, the law has gone beyond the times of strict interpretation of the provisions of Paragraph 4(1)(c). This is the attitude modern Courts now adopt to election petitions. Hear the parties who have come to the Tribunal with a grievance. I am of the further view that if the Election Tribunal had read these warnings from this Court as spelt out in the cases supra; they would in reluctant to strike out the petition.

It is therefore necessary in the light of all that I have said above, for the Supreme Court to revisit some of its decisions that are rooted in technicalities in electoral jurisprudence and in particular on subpoenaed witnesses in election petition cases. It is also necessary for all Nigerian courts and or Tribunals dealing with electoral disputes  to avoid technicality because in the words of the Supreme Court technical justice, in reality, is not justice but a caricature of it. It is justice in inverted comas and not justice synonymous with the principles of equity and fair play. Caricatures are not the best presentations or representations. Substantial justice, which is actual and concrete justice, is justice personified. It is secreted in the elbows of cordial and fair jurisprudence with a human face and understanding. It is excellent to follow in our law. It pays to follow it as it brings invaluable dividends in any legal system anchored or predicated on the rule of law, the life blood of democracy.   

Thank you all for listening to me.

Okutepa a SAN, Bencher spoke at the first Inter-Party Advisory Council (IPAC) Roundtable held at the Ladi Kwali Hall, Abuja Continental Hotel, FCT Abuja on the 8th August, 2024