Date Published: 03/31/10

SOKOTO GUBER APPEAL – WHY BAFARAWA, DPP HAS NO CASE By UMAR SANI , Abuja

I have no iota of doubt in my mind that going by the contents of his paid advertorial in the Daily Trust newspaper of March 15th 2010, the DPP’s Director of Media & Publicity, Abubakar Ateeku Yusuf, is not a member of the legal profession. The writer typifies the bane of Nigeria where everybody is an expert on everything!
 
Although I need to first educate the writer that appending a passport photograph to an affidavit is a requirement of the Federal High Court rules, I am impatient to take him on the legal issues that he raised in his article, viz. the Orders of the Court of Appeal and the conduct of Barrister Yahaya Mahmood vis-à-vis the integrity of the judiciary.
 
Except if Ateeku Yusuf was craving for a review of the Court of Appeal judgment delivered by Belgore JCA, the 6 Orders of that Court are very clear, unambiguous and require no further interpretation and/ or reminder. We however need to put the Court Orders in proper perspective since he was mischievous in refusing to mention the remaining three out of the six Orders. The missing Orders, I dare say, gave clue to the mind of the Court.
 
In the true tradition of the legal profession, the case was reported in the Nigerian Weekly Law Report as Dingyadi vs Wamakko (2008) 17 NWLR (Part 1116) page 395. The DPP ‘Goebbels’ mischievously emphasized on the Court’s Order 2 that the election was annulled ‘on the ground that Wamakko was not qualified to contest the election AS AT14th day of April 2007’. How mischievous! You can only appreciate Order 2 if contextualized against Order 3 and Order 4. The Orders, as contained on page 458 of the Reported case are reproduced hereunder:
 
“
1.     …………..
2.     The Sokoto State Governorship election held on the 14th day of April 2007 is hereby annulled for substantial irregularities in the conduct of the election and on the ground that the 1st respondent was not qualified to contest AS AT the 14th day of April 2007
3.     The Independent National Electoral Commission shall conduct fresh governorship election for Sokoto State within 90 days of the date hereof;
4.     The fresh election herein ordered shall be between the same parties and candidates as appear on Exhibit R8
5.     …………..
6.     ………….. ”
 
On careful analysis of Order 2, it is obvious that the election was annulled on two distinct grounds, namely, substantial irregularity in the conduct of the election andnon-qualification of Wamakko due to multiple and irregular nominations. These are very clear in the judgment and impliedly had different consequences.
 
The consequences that there was substantial irregularity in the election was Court Order 3 that INEC shall conduct a fresh election instead of asking the DPP’s candidate to be sworn in as the elected Governor. This Court Order is in line with many judicial authorities that a candidate who challenged an election on the ground that there was substantial irregularity could not be allowed to benefit from such an election.
 
On the other hand, the consequence of the non-qualification of Wamakko for breaching the Nomination-process was Court Order 4, which directed a fresh election between same parties and same candidates as appear on Exhibit R8. That Exhibit contained all the names of the candidates that contested the 14th April 2007 election including Wamakko and Dingyadi. There was nowhere in the judgment where Wamakko was excluded or ordered not to contest the fresh election. This is the correct position of the law and recognized the constitutional rights of Wamakko as a Nigerian citizen eligible to contest the election.
 
To appreciate the wisdom of the Court of Appeal, we need to understand the nature of the non-qualification of Wamakko. In the case of ANPP vs Usman (2008) 12 NWLR (Part 1100) page 1, the Court alluded to the distinction between disqualification as a result of constitutional bar and disqualification as a result of the breach of the Electoral Act. They are mutually exclusive in the sense that one is a disability inherent in the candidate, and the other is a disability inherent in the process.
 
Section 182of the 1999 Constitution listed, comprehensively, criteria for qualifications of candidates. The Electoral Act does not lay any criteria for qualification to contest any election outside those provided by the Constitution. It only provides the process of nomination of a candidate. The Court of Appeal, per Bulkachuwa JCA inANPP vs Usman (supra at pg 53), pointed out that the Electoral Act could not add to or subtract from the constitutional provisions on qualification to contest elections contained in the Constitution.
 
It may interest the DPP to know that Wamakko was found to be constitutionally qualified, by virtue of section 182 of the 1999 Constitution, to contest the April 2007 election, and by extension the 2008 fresh election. His problem in the 2007 election pertained to the process that threw him and his deputy as nominated candidates of his party in breach of the Electoral Act, which made his election void.

To disqualify Wamakko from contesting the 2008 fresh election is to add to the criteria of qualification contained in section 182(1) of the 1999 Constitution. This is never allowed in law. See ANPP vs Usman (supra) and Rimi vs INEC (2005) 6 NWLR (Pt. 895) 121. Thus, the judgment is a confirmation that Wamakko did not have any personal disability, as contemplated under section 182(1) of the Constitution, to contest the 2007 election. His disability was inherent in his nomination-process, and hence, rectifiable.
 
It is curious that the DPP kept on referring to the Court of Appeal judgment. That judgment, by the doctrine of functus officio, is final and cannot be reviewed. Whether it was delivered rightly or wrongly, it remains the judgment of the court and can never be reviewed directly, indirectly or through DPP’s subterfuge of ‘interpretation’. The judgment is clear and did not disqualify any person that appeared on Exhibit R8 from contesting the 2008 fresh election.
 
It is further curious that the DPP is only interested in the selective review of the judgment, desperately looking for the interpretation of the words that ‘Wamakko was not qualified to contest as at the 14th day of April 2007’. Why have they not brought to fore the Court’s contradiction as to whether or not the issue of nomination can be taken before an election Tribunal?
 
For instance, in Dingyadi’s case, the Court of Appeal said, “an issue of multiple nominations … is justiciable before an election tribunal”. (See page 449, paragraph G). The same panel of the Court of Appeal, on the same day, in the case of Saidu vs Abubakar (2008) 12 NWLR 201 held that “issues of nominations … are matters outside the competence of an Election Tribunal”. (See page 263, paragraph E).
 
Looking at the Supreme Court’s position on the issue in the case of Amaechi vs INEC (2008) 5 NWLR (Part 1080) 5, particularly the superiority of a political party in winning an election, can Wamakko demand that such conflicting positions be harmonized in view of its glaring injustice to him? The bitter fact is that that judgment, rightly or wrongly, remains the final judgment of the Court and cannot be reviewed.
 
I have taken pains to analyse the Court Orders as it relates to the non-qualification of Wamakko to show that Barrister Mahmood’s action was in order and largely influenced to avoid a miscarriage of justice and to uphold the integrity of the judiciary. He is a very senior and respected member of the bar and is well known at upholding the ambers of justice since his days as a Cheif Magistrate in Kaduna State Judiciary. He very well knows the age-old maxim that ‘equity helps the vigilant and not the indolent’, and therefore must strive to avert a miscarriage. He must be commended.
 
The issue before both the Supreme Court and the Court of Appeal are the same. It largely depends on the interpretation of the judgment in Dingyadi vs Wamakko (supra). Since the decision of the Supreme Court is binding on every court, authority or person in Nigeria as reiterated in the case of Idris vs ANPP (2008) 8 NWLR (Part 1088) pg 1 @ pg 120, Paragraph D, is it not tidier to await its decision before the Court of Appeal proceeds further? Imagine a situation where the Court of Appeal gives an Order based on an interpretation that turns out to be at variance with the interpretation of the Supreme Court.
 
How can the loosing litigant be compensated? How would the Court of Appeal, albeit the entire judiciary, look in the eyes of the ordinary Nigerian? The Amaechi’s embarrassment is enough for the judiciary! It is on this note that both the Chief Justice of Nigeria and the Supreme Court must equally be commended for their courage in taking the bull by the horns to safeguard the growing confidence being reposed by ordinary Nigerians in the judiciary as the savior of our nascent democracy.