‘No Arm of Government Has Absolute Powers’

Humphrey Oboh

Ugo Aliogo holds a discussion with a lawyer, Humphrey Oboh on the implications of the recent ruling by a Federal High Court in Asaba, pronouncing a faction of the All Progressives Congress in Delta State, which produced candidates for the 2019 national elections as illegal


What is the implication of the judgment of the Federal High Court in Asaba that sacked the Senator Ovie Omo-Agege faction of the APC?

The judgment by the Hon. Justice Adegoke of the Federal High Court Asaba covered the field. It was succinct and unassailable. The judgment has put a stop to the pyrrhic victory of not only Senator Omo-Agege, but the entire members of his faction in the APC who contested the 2019 general election.

The implication revolves and still rages as to whether section 140(2) & 141 of the Electoral Act 2010 is a legislative judgment or judicial legislation of the Electoral Act 2010. Michael Numa in an extensive analysis published in THISDAY of the 24th November, 2015 stated thus: ‘Legislative Judgment or Judicial Legislation-Section 140(2) & 141 of the Electoral Act 2010’, “After the Supreme Court of Nigeria delivered the landmark decision in Amaechi V INEC, declaring Ameachi the duly elected Governor of Rivers State, on the premise that he was the validly nominated candidate of his political party without necessarily participating in the general election, the National Assembly amended the Electoral Act 2010 for the sole purpose of the 2011 election and introduced Section 140(2) &141 in a bid to curtail the powers of the courts to grant such reliefs. Suffice it to say that the pronouncement in Amaechi v INEC received a lot of commendation, as well as, criticism within and outside Nigeria, most scholars in the Commonwealth jurisdiction and indeed law schools have embarked on extensive analytical studies on the rationale behind the decision. These sections provides thus: Section 140(2), “where an election tribunal or court nullifies an election on the grounds that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provision of this act, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election, Section 14.1, “An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”

These provisions have been widely described as provisions beyond the scope of the legislative competence as it tends to limit and/or define the scope of the powers of the court to make pronouncement in the adjudication, therefore running contrary to the principle of the separation of power and its ancillary concept of checks and balances, The powers of the court or to declare the winner of an election is constitutional vide Section 134, 179 and 285 in particular and carries with it the power to do justice in every case. It is trite that when the law or any of its provisions is or are found to be inconsistent with any of the provisions of the constitution, the court by virtue of Section 4(8) and (9) of the constitution is, and on strength of Section 1(3) of the same constitution; empowered to declare such legislation or any of its provisions inconsistent with the constitution and will nullify such legislation. One notable case is the Public Order Act, In Akinwolemina V Ondo State House of Assembly (1985) 6 NCLR 580; the court held that, “in order not to create a tyrannical and despotic legislature, the drafters of the CFRN, 1999 as amended specifically prohibit the National Assembly from making any law (s) that, “ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law.

By these provisions, the drafters of the constitution consciously set out to create a government that will be strictly limited by law and to be made subject to the constitutional authority of the judiciary in the exercise of its adjudicatory duties. No arm of government that has absolute powers, perhaps unreviewable powers. The pertinent question to ask is, whether or not the National Assembly in enacting the said Sections 140 (2) & 141 of the Electoral Act exceeded its constitutional mandate?’

That fact that Omo-Agege was not a party to the suit that gave rise to the judgment of the Justice Tosin Adegoke as it stands rules him out or the APC for that matter from participating in any fresh election.

Who do you think is the Senator-elect going by the judgment given the fact that Olorogun Emerhor of another APC faction and Hon. Evelyn Oboro of the PDP are laying claim to the seat?

I am surprised that counsel representing Olorogun Emerhor has not brought to his attention the provisions of Section 31 of the Amended Electoral Act 2010 which states inter-alia that a list of candidates submitted to INEC less than 60 days before election is invalid in which case the party concerned would be deemed to have fielded no candidate. See Senator Ehinlanwo v Oke & 2 others (2008) Vol. 36 (pail 1) NSCOR 1 at 53 and Section 141 of the Electoral Act which provides that for a candidate to be declared a winner he must have participated in every stage of the election, Olorogun Emerhor did not contest the election and his name was not on the ballot paper so he cannot lay claim to the Delta Central senatorial seat. It’s too late in the day. By virtue, of section 140 (2) which provides for a fresh election thus, “where an election tribunal or court nullifies an election on the grounds that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provision of this act, the election tribunal or court shall not declare the person with the second highest votes as elected but shall order a fresh election.” As a matter of fact, the APC is out of time to conduct another primaries and the implication is that they won’t participate in the fresh election if so ordered by INEC.

I can categorically state that the combined effect of Sections 13, 140 (2), 141 of the Electoral Act 2010 and the judgment of the Justice Adegoke places Evelyn Oboro as the likely Senator-elect of Delta Central constituency. Omo-Agege is no longer the Senator-elect for Delta Central going by the judgment of Justice Adegoke


What does the law really say in a situation such as this?


There are conflicting judgments as to APC having candidates in Zamfara and whether INEC can accept candidates presented by the APC for Zamfara elections in 2019. A high court sitting in Gusau, Zamfara State ruled that the governing APC actually conducted primaries in the state and should be allowed to present candidates for the electoral contest. An Abuja High Court, however, ruled otherwise. A Federal High Court in Abuja ruled saying INEC acted within its powers by refusing to accept the list of candidates from Zamfara State chapter of the APC, Justice Ijeoma Ojukwu said it was not the fault of INEC that APC failed to conduct a valid primary within the period scheduled by the electoral body.

Ojukwu said INEC’s action was intended to curb impunity among political parties and ensure that rule of law is adhered to. I have been informed that the matter is presently before the Supreme Court. I will not make further comments on the issue.

When Omo-Agege disobeyed an earlier valid order, what steps do you think other factions of the APC and the PDP should have taken?

The legal maxim says, “those who come to equity must come with clean hands.” In disobeying the valid court order which he was aware of, the Emerhor faction of APC did the right thing by following the due process of the law which gave rise to the judgment by the Justice Adegoke that dug the political grave of Omo-Agege as it stands. In their (Omo-Agege’s faction) contrived consensus judgment not once was the restraining order given by the Justice Adegoke mentioned. The PDP had no hand in it, it was an APC internal matter which infringed on the extant electoral laws.

What did you think INEC did wrong in all of this?

This case has brought to the fore INEC’s nonchalant attitude towards subsisting court orders. Hope it will be addressed soon because if INEC had enforced the restraining order earlier given by the Justice Adegoke, the Omo-Agege faction wouldn’t have contested the 2019 general election. The beneficiaries of this Justice Adegoke’s judgment as it stands are the PDP amazon Hon. Evelyn Oboro, Hon. Samuel Mariere and other PDP stalwarts who contested the general election. They will have another bite of the cherry without the APC.

Is this case related to the Zamfara’s where the Court of Appeal sacked APC candidates who participated in the general election?

To a large extent, yes. As things stand in the Zamfara matter, there are conflicting judgments of courts with coordinate jurisdiction. The Zamfara matter is presently before the Supreme Court and thus sub judice.