Daniel Bwala, constitutional lawyer served as a spokesman to
Atiku Abubakar in the 2023 Election Campaign, and before then, had dispensed
legal expertise to the Senate Committee on Constitution Review.
In this interview monitored on Arise News Television, he
brings his perspectives on the unfolding constitutional questions arising from
the conflicting judgments of the Court of Appeal in certain jurisdictions
across the country.
He particularly brings to bear the intriguing question of
how the Supreme Court will approach the settled law on pre-election matters
that were reopened by the Court of Appeal in Plateau State.
issues emerging from the election petition cases
In 2023 election we
have had the worst of the judgments of court. We have not had so much of
conflicting decisions by one tier of government because if you look at the
election tribunals this year, you will notice that there were inconsistencies
in one or two tribunal cases at the trial level and at the Supreme Court,
probably one or two complaints. But at the Court of Appeal is where almost all
of these conflicting judgements have been experienced.
For the records, the Court of Appeal is one court, so even
if it were in Maiduguri at the Court of Appeal it can be relied upon by the
Court of Appeal in Lagos because it is the same court.
The court is one and the court should be appraised of the
various judgements it delivered and be consistent in its judgments especially
when the judgments are founded on the principle of law. Facts can differ but
the principle of law is constant and wherever you turn, when the principle
falls on a direction, the judgment has to be consistent and constant.
But we have (now) seen conflicting decisions of the Court of
Appeal especially where they affect the Peoples Democratic Party, PDP.
There was the judgement of the Court of Appeal in Plateau
State that removed the governor and the appellate court delved into the merits
of a pre-election matter and they said that it also qualified as a main
election matter and delivered a judgment.
The same Court of Appeal in Ebonyi State, the same
pre-election was canvassed, the Court of Appeal in Ebonyi said that it is a
pre-election matter and we cannot delve into pre-election.
In Benue State, pre-election matter was raised in terms of
forgery the Court in Benue said that it is a pre-election matter and we are
guided by the judgment of the Supreme Court.
In all these places where judgment was delivered either in
sustenance of pre-election matter in tribunal or in the rejection of the
pre-election matter in the tribunal, who has been the beneficiary?
Supremacy of the judgments of the Supreme Court on
This is where the concern comes. Section 287 of the
Constitution of Nigeria makes it clear the position of stare decisis and
judicial precedence that the judgment of the Supreme Court is binding
throughout Nigeria on all authorities and on courts that are subordinate to it.
In this 2023 election, the Supreme Court of Nigeria settled
the issue of pre-election matter in the case brought by APM, in the case
brought by APC and in the case brought by Labour where pre-election matters
were canvassed and they were joined together with fundamental provisions of the
Constitution to suggest that this is so germane that you cannot close your eyes
from it and the Supreme Court made pronouncements, in fact, with anger and
vehemence that anybody who is not a member of a political party and even if you
are a member of a political party and where the issue borders on pre-election,
it cannot be brought and that that party is a busybody.
Zamfara in 2019 and Plateau in 2023
People say in 2019 that in Yari’s case the Supreme Court
sacked APC and that why is PDP crying? They fail to realise that in 2019 apart
from the fact that it was a decision decided on the old order on both the
amendment to the Constitution and the Electoral Act, it was a case brought by a
member of the All Progressives Congress, APC. It was an intra-party matter. In
this year, the Supreme Court said you are a busy body to try to question even
where the legality of what you are challenging is genuine if you are not a
member of the party.
Issues on Plateau
You will see that there is no disobedience as a ground (for
annulment of election) Even in Plateau where they say that there was no valid
congress, that they didn’t even have a structure that will warrant for them to
sponsor a candidate. What is the structure of a party as recognized by law?
The National Working Committee, NWC is the soul and the
spirit of a political party. When you sue a party, you are suing the National
Working Committee. Even if there is no any structure at all in a state, it
cannot give rise to the decision of a court that there is no conduct of
Even the order they claimed was violated, the order was
In election tribunal if the time passes you, even the
Supreme Court said they cannot exercise jurisdiction. The character of a
pre-election matter no matter the gamut in which it arises can never be
entertained by an election tribunal or an appellate court
Justice Tobi and
Justice Niki Tobi and the various justices of the Supreme
Court that have served and have retired always in their judgments always
decided that any decision by a court lower than them that tends to run away
from their decisions is judicial rascality. They said that you are embarking on
a frolic of your own. They said that this constitution says in Section 287 that
the judgment of the Supreme Court binds all courts in Nigeria that are
subordinate to it and in this case, it is the judgment of the Supreme Court
that pre-election matters cannot be determined by an election tribunal.
Plateau State as an interesting case for the Supreme Court
Our hope now lies on how they would interpret the case. This
case of Plateau State when it gets to the Supreme Court it would be the case of
Supreme Court versus Court of Appeal. It has more to do with the sanctity and
integrity of that Supreme Court itself because the Supreme Court will have to
determine whether that judgment they delivered in the Presidential Election
Tribunal is to be carried out by subordinate courts in Nigeria.
They made it clear that a decision by a final court is
called a settled law. Once a case is not determined by the final court it is
not a settled law. But once it is determined by a final court it is cast on
stone. So, the Supreme Court will have to determine whether the Court of Appeal
is above it or it is above the Court of Appeal.
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