Appeal Court and a Judicial Somersault

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Justice Zainab Bulkachuwa

Can a Court of Appeal with the same panel of judges contradict its judgment, and override the decision of the Supreme Court on the same case? Davidson Iriekpen Asks

Can the same panel of the Court of Appeal contradict its judgment, and override the decision of the Supreme Court in the same case? This is the question a member of the House of Representatives representing Lere Federal Constituency, Kaduna State, Suleiman Aliyu Lere, wants both President of the Court Appeal, Justice Zainab Bulkachuwa and the Chief Justice of Nigeria (CJN), Justice Ibrahim Tanko Muhammad, to answer.

Lere had participated in the primary election conducted by the All Progressives Congress (APC) for the Lere Federal Constituency of Kaduna State on October 7, 2019. After the election, he emerged winner.

The APC, however, submitted the name of one Ahmed Mohammed Munir to Independent National Electoral Commission (INEC) as its candidate for the federal constituency.

Aggrieved with the decision, Lere went to the Kaduna State High Court, where he filed a suit to challenge the APC and INEC’s decision. The state High Court declined jurisdiction on the grounds that the dispute was an internal party affair.

Not satisfied, the lawmaker proceeded to the Court of Appeal, which first assumed jurisdiction. Two days to the 2019 general election, precisely on February 21, 2019, the appellate court in a unanimous judgment, ordered INEC to recognise, accept and treat him as the candidate of the APC for Lere Federal Constituency in the election.

The court added that it was not lawful for the APC to recognise and forward the name of any candidate other than the appellant (Lere) to INEC as its candidate for Lere Federal Constituency. It further held that it was unlawful for the APC to change the result of the primary election in which the appellant emerged winner and was so declared by the party.

It equally restrained the 2nd respondent in the appeal, Ahmed M. Munir, from parading himself as the candidate of the party for the federal constituency in the 2019 general election, and awarded a cost of N500,000 each against the APC and Munir in favour of the appellant.

At the end of the general election, which held on February 23, 2019, the APC scored 64,442 votes to emerge victorious while PDP came second with 29,709 votes.

But Munir and the APC appealed the decision at the Supreme Court. On May 10, 2019, the apex court in its judgment, upheld the decision of the Court of Appeal that Suleiman Lere was the candidate of the APC.

The court concurred with the order of the Court of Appeal asking INEC to recognise, accept Suleiman Lere as the candidate of the APC for Lere Federal Constituency at the 2019 general elections cannot be faulted.

Consequent upon the decision of the Supreme Court, the INEC issued a certificate of return, which was hitherto withheld pending the judgment of the Supreme Court dated May 14, 2019 to Suleiman Lere.

While the pre-election dispute was being resolved at the Supreme Court, the PDP and its candidate, Lawal Muhammed Rabi’ufiled, filed a petition before the National and State Houses of Assembly Tribunal in Kaduna, challenging the outcome of the general election.

They, however, did not join the lawful candidate of the APC, Suleiman Aliyu Lere as a respondent in the petition, instead they joined Ahmed Munir who as at the time of filing the petition, was not only a disqualified candidate, and had also been restrained by the courts from parading himself as the APC candidate.

Even though the main grounds of the petition before the tribunal was premised on nomination and candidature of Munir vis-à-vis his disqualification by the Court of Appeal, the petitioners vehemently opposed a motion filed before the tribunal seeking to join Suleiman Lere, who was recognised by the electorate and presumed by law to be the APC candidate, as a necessary party in the petition.

In its ruling delivered on June 1, 2019, the tribunal agreed with the petitioners and rejected the application seeking to join Suleiman Lere as the 4th respondent and a necessary party to the petition.

Upon Lere’s interlocutory appeal to the Court of Appeal, a full panel of the court presided over by Justice Hussein Mukhtar, with Justices Obietonbara O. Daniel Kalio, Saidu Tanko Hussaini, Oludotun A. Adefope-Okojie and James Gambo Abundaga, gave a unanimous judgment and held that Suleiman Lere was a necessary party and his joinder application in the petition was essential to the proper adjudication of the matter before the tribunal.

At pages 19 to 20 of the judgment of the Court of Appeal delivered on July 26, 2019 in Appeal No: CA/K/EPT/NA/4/2019 between Suleiman Lere Vs. Rabiu Muhammad Lawal, the Appeal Court according to Justice Hussaini held thus:

“It is important to note that the judgment of the Court of Appeal under reference was delivered a day or two before the general election took place. The general election was held on February 23, 2019. The Court of Appeal judgment was delivered on the February 21, 2019. It goes without saying, flowing from the decision above that as at the 23rd February 2019, when the general election was held or took place.

“The 3rd respondent that is (Ahmed Muhammed Munir) was not the candidate of the APC rather the appellant, Suleiman Lere, was that candidate. The 5th respondent (INEC) was, by the reason of the judgment of this court put on notice to accept, recognise and treat the appellant herein as the candidate of the APC.”

The court concluded that based on the reasons above, Suleiman Lere participated in the general election of 2019 and contested for Lere Federal Constituency.”

The court further held: “Like the plaintiff in the case of Amaechi Vs. INEC (Supra), the appellant herein was an aspirant in the primary election organised by his party, where he secured the highest number of votes, but unlike in the case of Amaechi Vs. INEC (Supra) the appellant herein was a candidate in the general election held on the February 23, 2019, where the APC and indeed, it was the appellant that won in that election, for the seat of Lere Federal Constituency in the House of Representatives.

“By reason of the appellant being the candidate, he participated in the general election held on the February 23, 2019 and thus had fulfilled all the requirements set by section 285 (13) of the Constitution (as amended) in terms of his participation.”

The same Court of Appeal in Appeal No: CA/K/EPT/NA/12/2019 between Mohammed Shamsuddeen Bello Vs. Suraja Idris Kanawa presided over by the same Justice Hussein Mukhtar and comprising of Saidu Tanko Hussaini and Oludotun A. Adefope-Okojie delivered a judgment on October 25, 2019, relied on the judgment of the full penal of the court in Appeal No: CA/K/EPT/NA/4/2019 between Suleiman Lere Vs. Hon. Rabiu Muhammad Lawal & Others in holding that Mohammed Shamsuddeen Bello participated and won the election into Takai/Sumaila Federal Constituency.

The court in the judgment held: “This court had earlier in the judgment delivered on 19th June 2019 which affirmed the decision of the Federal High Court, held that the appellant herein is indeed the candidate of the APC in the general election. I take judicial notice of all those decisions.

“The appellant has by reason of one decision of the apex court in appeal No SC 813/2019 been the candidate, who participated and contested in the general election, had met the requirements set out in section 285 (13) of the electoral act. See the decision of this court in Engr. Suleiman Aliyu Lere vs Rabi’u Muhammad Lawal and 4 others. (Unreported) appeal no CA/K/EPT/NA/4/2019) delivered on the 20th July 2019.

“Victory secured by the appellant at the Supreme Court Vide SC 812/2019 and SC 813/2019 (supra) cannot be wished away as empty or barren victory rather, the victory by him is substantial and tangible and the Court, including this court have a duty under section 287 (1) (2) of the constitution of Federal Republic of Nigeria 1999 (as amended), to enforce the judgment of the Apex Court.”

However, in a dramatic somersault, the same Court of Appeal presided over by the same Justice Hussein Mukhtar in CA/K/EPT/NA/19/2019 set aside the decision of the Supreme Court on the basis of which the APC issued a Certificate of Return to Suleiman Lere and also set aside the decision of the full court of the Court of Appeal in Appeal No: CA/K/EPT/NA/4/2019.

The court in Appeal No: CA/K/EPT/NA/19/2019 with the same panel, reversed itself, saying that the APC which it hitherto adjudged to have sponsored a candidate and won the election for Lere Federal Constituency, did not now have a valid candidate in the February 23, 2019 general election. It consequently sacked Lere from House.

The decision has therefore raised many eyebrows. In the Nigerian judicial system, the principle of stare decisis, which provides the necessary certainty in the administration of justice, has long been established and entrenched.

By the provision of section 287 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the decisions of the Supreme Court shall be enforced in any part of Nigeria by all authorities and persons and by courts with subordinate jurisdiction to the Supreme Court.

Observers are wondering that the Supreme Court, having made a determination that Suleiman Lere was the candidate of the APC for Lere Federal Constituency and the full panel of the Court of Appeal having determined that he fully participated and won election for Lere Federal Constituency, where did the same panel derive the temerity to detract and deviate from the decision of the Supreme Court and the full panel of the Court of Appeal?

Many are completely at a loss to see the same court with the same justices delivering conflicting decisions on the same subject matter, wondering if the decisions of the Court of Appeal in CA/K/40/2019, CA/K/EPT/NA/4/2019, CA/K/EPT/NA/12/2019 and CA/K/EPT/NA/19/2019 were justified?

Lere has therefore called for self-appraisal and review of the conflicting decisions by the Court of Appeal in the matter. He also called on the National Assembly and the Supreme Court to intervene in the case in order to save the judiciary from being thrown into utter confusion and embarrassment.