Following the March 25, 2019 judgment of the Court of Appeal sitting in Sokoto, which set aside the decision of a Zamfara High Court that allowed the All Progressive Congress (APC) to field candidates for the March 9 elections in Zamfara, the Independent National Electoral Commission (INEC) said it had suspended the issuance of Certificates of Return to winners of the March 9, governorship and House of Assembly elections in Zamfara State. The commission disclosed this in a notice on INEC twitter handle, @inecnigeria, posted on Tuesday.
According to the commission, “INEC has been served with the judgment of the Court of Appeal, Sokoto concerning the sponsoring of candidates by the APC in Zamfara and is studying same.
“Consequently, the presentation of Certificates of Return for the Zamfara Governorship and state House of Assembly scheduled for Wednesday 27 has been suspended.”
INEC had earlier said the APC would not contest in the state election, but a Zamfara State High Court directed INEC to accept the APC’s candidates just a few days to the elections.
However, the Court of Appeal sitting in Sokoto on Monday said the Zamfara State High Court failed to evaluate wholly all evidence presented before it before giving its verdict on the APC primaries in the state.
Justice Shaibu Yakubu who delivered the Court of Appeal lead judgment said all evidence placed before the court had shown that the APC and others respondents did not conduct primary elections, saying it contravened the electoral law. But Zamfara State chapter of the APC, the state Governor-elect, Muktar Shehu, and other winners of the 2019 polls on the platform of the APC in the state wrote to the Independent National Electoral Commission to counter the position of the commission.
In a letter to the INEC Chairman dated March 26, 2019 written on behalf of the governor-elect and 38 others by their counsel, Magaji Mahmmud (SAN), the APC members said the Court of Appeal in Sokoto in its March 25 judgment did not “make any positive consequential order.” The lawyer said his clients “have taken positive steps towards exercising their constitutional right of appeal to the Supreme Court.”
He said his clients drew his attention to a letter written by counsel to Senator Marafa’s lawyer, Mr. Mike Ozekhome (SAN), wherein he stated, “there is absolutely no legal basis for any of the APC candidates that allegedly emerged victorious from the said sham elections to be issued with any certificate of return.”
Faulting INEC decision to withhold the APC candidates’ certificates of return, he said: “We wish to state that issues of law of this nature are regulated by an order of court or court of law and not by opinion of counsel via a mere letter from chambers.
“May we further emphasise that in the entire judgment of the Court of Appeal, there was neither a positive order made against our clients nor in favour of the appellants. Thus, it will be wrong of the commission to rely on the mere speculative letter of the appellants’ counsel at this stage when elections have already been concluded and winners have emerged. The only institution that is empowered to make a positive order in respect of this subject matter is the court of law, and no court of law has made or given an order to that effect.”
Quoting section 235 (3) of the 1999 Constitution as amended, the solicitor states, “the law is trite, right of appeal to the Supreme Court is constitutional and no court or any person can take it away by mere letter. We urge you and the entire commission to discountenance the letter of Mike Ozekhome (SAN), wherein there was no position order at the court of appeal.”
Mahmud also argued that the judgment of their Lordships, which did not contain any positive order in favour of the appellants, was supported by the provisions of section 285 (13) of the 1999 Constitution (4th alteration as amended).
Counsel for the APC candidates, in his letter to INEC, said the Court of Appeal did not make such an order.
He said: “at the risk of repetition and emphasis, it’s bad practice for counsel to resort to letter writing, thus misleading a responsible organisation like the INEC by twisting facts. The judgment of their lordships, which did not contain any positive order in favour of the appellant is supported by the provisions of Section 285 (13) of the 1999 Constitution (4th alteration as amended).
“Finally, we challenged the appellant counsel (or any other person) to show anywhere in the judgment of the Court of Appeal wherein the learned justices made a positive order in favour of the Appellants or against the Respondents.”
Senator Kabiru Marafa, Chairman of the Senate Committee on Petroleum (Downstream) and 129 others through his counsel, Mike Ozhekome, SAN, filed appealed against the judgment of the Zamfara state High Court. Respondents are Kabiru Liman-Danalhaji and 139 others represented by Mr. Mahmud Magaji as lead Counsel.
Delivering the lead judgment, which was adopted by two other justices, Tijjani Abubakar and Jamilu Tukur, Justice Tom Yakubu held that the lower court failed in its duty to properly evaluate the evidence before it. Justice Yakubu said judges have the legal power to produce judgment and reach decisions with reason, noting that in the instant case, it was not done.
“I am convinced that the lower court has failed to evaluate the evidence before reaching the decision. The Appeal Court has power in law to access pieces of evidence on appeal, which we have done. Based on available facts the respondents did not contradict the INEC evidence on conducting the said primary election.”
Justice Yakubu held that the plaintiffs, being card-carrying party members and aspirants in the said primary election, had the legal capacity to institute the suit. He added that federal, states and FCT High Courts have jurisdiction to entertain such matter.
The judges agreed that the judgment should serve as “bitter lesson” for political parties as they ought to follow legitimate guidelines and rules.
“Domestic affairs of political party activities must act within the confines of the law in dealing with party members and elections,” the judges agreed.
A Zamfara High Court recognised the primary election that produced governorship, state and national assembly candidates held by APC in the state and declared that INEC should accept the party candidates for the elections.
Unsatisfied with State High Court decision, the appellants, approached the appeal court challenging the decision on the grounds that the State High Court lacked jurisdiction to entertain the suit among others.
The Supreme Court has attempted to define “Consequential Orders” in the case of Frederick Obayagbona & Anor v. D. Obazee & Anor (1972) 5 S .C.247 at 254. Sowemimo, J.S.C. (as he then was) delivering the judgment of the court on consequential orders after the judge had given judgment in favour of the plaintiff “as claimed,” made consequential orders, which detracted or derogated from the judgment itself said: “We think that by the very nature of the term ‘consequential’ any ‘consequential orders’ must be one giving effect to the judgment. In its ordinary dictionary meaning, the word ‘consequential’ means ‘following as a result, or inference; following or resulting indirectly.’
“A consequential order is not one merely incidental to the decision but one which necessarily flow directly and naturally there from; it is inevitable and consequent upon the decision made by the court: It must in other words give effect to the judgment already given and not a granting of fresh and unclaimed or un proven relief. It can only relate to matters adjudicated upon. Where it flowed from nothing decided, as it is in the case at hand, die subsequent orders made must be nullified.” PER CLARA BATA OGUNBIYI, JSC
Olajide Olatawura, JSC had in his lead judgment in “The Registered Trustees of the Apostolic Church Vs. Mrs. Emmanuel I. Olowoleni” held that ‘”it is a misconception to submit that consequential order made by a court must of necessity be based on the reliefs claimed.
“The basis for an order made by the court must be looked for from the evidence before the court. It is trite law that a court cannot award more than is claimed. It is equally misconceived that an order cannot be made in favour of a defendant simply because he has not filed a counter-claim.
“An order made in favour of a defendant even where he has not counter-claimed must flow from the evidence and more so if the justice of the case demands.
“In this case, the defendant agreed that a defined parcel of land was granted to the plaintiff. After the plaintiff had issued its writ and before the case was heard, it erected a wall fence enclosing not only the area granted to it but also enclosing more than was granted to it. The judge was right to have ordered the demolition of the wall fence.
“This order is a consequential order that flows from the evidence. It is not a separate head of claim expected to be found in a writ. It is covered by order 34 rule 1 of the Kwara State High Court Rules: Garba V. University of Maiduguri (1986)1 N.W.L.R. (Pt. 18) 550.”
Where a consequential order is not made, it can only be inferred by virtue of relief sought but in the very Zamfara appeal, counsel to the APC , Mahmud Magaji (SAN) said it would amount to mere speculation to infer such from the Court of Appeal judgment.
