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Role And Impact Of Conflicting Judgements (I)

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PREAMBLE

I must register my appreciation to President of the Court of Appeal, Justice Zainab A. Bulkachuwa for once again giving me an opportunity to express my thoughts on this vexed topic which is sensitive and germane to the judiciary. It is sensitive because the public have expressed their views on this subject rightly or wrongly. It is worrisome because some sentiments expressed have been without knowledge of the actual workings of the judiciary. It is of great concern because some other views with deep knowledge of the inner workings of the judiciary have also expressed their concerns on this topic.

The sensitivity of this topic is further buttressed by the fact that I am saddled with the responsibility of addressing the effect of such conflicting judgments. This to me is a call to a self-appraisal of the work that we have had to do pre and post the conduct of the 2015 elections. This is quite a tough task, attempting to balance the reality of the existence of conflicting judgments, why there are conflicts and what need to be done to prevent such conflicts without interfering with the independence of the judicial officer in the discharge of his duties.

Herein lies the importance of this workshop or more appropriately, a discourse which will afford us, the judicial players in the electoral process to once again, draw attention to the fundamental and very important role we are called to exercise in the electoral process. This for me represents an acknowledgement of the role of the judiciary in giving support to the credibility of the electoral process thereby upholding the tenets of democracy and the hallmark of a society.

We are again in a season of elections. The mood of the nation revolves round the elections.  Politicians are crisscrossing the Country, their States, their Senatorial Districts, their wards and units depending on which office they seek, in search of votes. The objective of every Politician is to win the election for the office he contests. In many democracies across the world, once the results are declared, the loser congratulates the winner. Sometimes even before the result is declared where the outcome of the election is obvious, the loser congratulates the winner. In Nigeria however, with the exception of the last presidential election where the loser conceded defeat, the outcome of an election is hardly determined with finality with the announcement of the result. More often than not, it is the Courts that decide the ultimate winner. This is why the role of the Courts and particularly the judgments they deliver are often the subject of interest, and rightly so.

THE ELECTORAL PROCESS

The Black’s Law Dictionary 9th Edition simply defines an “electoral process” ‘as the method by which a person is elected to public office in a democratic society. By this definition, it can be safely stated that an electoral process includes actions and steps that include selection of candidates, campaign by candidates, voting, and collation of results, declaration of results and the immediate aftermath of the declaration of results.

In some democracies, the electoral process terminates with the announcement of the winner of an election. Seldom do post-election issues such as the contest of the outcome of the election in Court, arise. In the United States of America, the Country we modelled our presidential system of government after, examples of contest of the outcome of an election are few and far between.

The most famous one perhaps, was the dispute over the outcome of the presidential election of November, 2000 between AI Gore the Democratic Party candidate, and George W. Bush the candidate of the Republican Party. The outcome of that election was such that the winner was not obvious. Indeed, AI Gore received 547, 398 more popular votes than George W. Bush. However, Presidential Elections in the United States are not determined by popular vote but by the most votes in an Electoral College. The contest between AI Gore and George W. Bush was to be determined by the result from the State of Florida where the margin between them was razor thin.

By Dec 8th 2000, there had been multiple court decisions regarding the Presidential Election in Florida which led to the ordering of a recount by the Florida Supreme Court but by December 9th the United States Supreme Court by 5-4 votes, ordered the stay of the recount. Thus, the winner was decided by the Florida Electoral College which allowed the vote certification to stand. Bush was the winner of the Electoral College votes. Ultimately, the outcome of that election was not the pronouncement of any Court as to who won the election. More recently in the United States, that is to say, just last year, there was a dispute over the outcome of the Senate race in the State of Alabama.

A Court in that State ordered election officials to preserve digital images of the ballots cast by voters. However the Supreme Court of the State of Alabama overturned decision of the said Alabama Court and ordered the election officials not to preserve electronic ballot records that could form the basis of a recount. Thus, the outcome of that election was also not the result of a judicial pronouncement as to who won. In both examples from the United States therefore, the outcome of the elections was as determined by the Electoral umpire. It can be argued that the situation in the United States was so because the opportunities for electoral malpractices have been virtually eliminated by the electoral system. This is not to say that the Electoral process in the United States is without problems. There are emerging allegations of voter suppression especially among Blacks and Hispanics in the United States.

In Nigeria however, after the conduct of the election and declaration of the result by the electoral body, more often than not, the loser heads to the Election Tribunal or the Court as the case may be, seeking the annulment of the election or similar orders.

For the electoral body, its concern is how to deliver on a free and fair election. For the judiciary what is of utmost concern is how to ensure that the adjudicatory process in the resolution of election disputes achieve the aim of a credible election that will enhance the democratic culture. Every sector is relevant for the delivery of a credible democratic system. Even more so, is the judiciary which is the last bastion of the Electoral process and the last hope of the common and uncommon man.

The Constitution of the Federal Republic of Nigeria recognizes the Election Petition Tribunals with specific provisions in respect of the jurisdiction of the Tribunals to deal with election petitions. It vests the powers to adjudicate electoral disputes on the Election Petition Tribunals, the Court of Appeal in respect of Presidential election, and in respect of appeals against the judgment of the Tribunals, and the Supreme Court to hear appeals in respect of Governorship cases.

As the litigants- Petitioners and Respondents gear up and approach the judicial system for the resolution of their election disputes, of paramount concern to them should ordinarily be a fair and unbiased determination of their disputes. The desire of every litigant is the enthronement of a judicial system where electoral legal disputes are resolved on the platform of an integrity guaranteed judicial system.

The integrity of the judicial system forms the hallmark of the confidence that the people entrust in the system which can only be guaranteed where the litigants approach the Court with the assurance that their disputes will be resolved with certain extent of consistency and exactitude. Sadly, the judiciary has come under a lot of review, appraisal, and criticisms by both judicial and non-judicial actors. One area that has been a focus of increased commentaries is the aspect of conflicting judgments in the resolution of election disputes.

In this presentation, we shall attempt an over view of the basis for the anxieties, the  worries or comments expressed by many, mindful of the fact that elections and electoral system are sensitive in nature and attracts more of public attention or interest. This presentation seeks to highlight the context in which it can be said that conflicts exist in the resolution of election disputes, factors responsible for conflicting  decisions of  Election Tribunals or Courts, the effect such conflicting judgments (if any) have on the system and proffer suggestions on how to stem the tide or bring it to the barest minimum.

There is no pretension about the obvious that there has been growing concern and apprehension by both the stake holders and the public at large over conflicting judgments especially over election matters.

In addressing this topic, I find two key terms interesting, these are- “conflicting judgments” and “impact”. For me, this topic, as carefully chosen and couched by the organisers,   already concludes that the Courts/Tribunals in the fall out of the 2015 election petitions had conflicting judgments. Working on this premise therefore, I intend to examine the question whether there actually exists conflicting judgments of the Courts in the fall out of the 2015 election petitions and   attempt to appraise the impact of such conflicting judgments on the electoral process.

To me, what this topic seeks to examine and address is the negative corrosive effect of conflicting judgements or decisions on the image and integrity of the judiciary.

To do this, I shall underscore this point by reference to public perceptions on this issue and an appraisal of the decisions that actually or seemingly create the impression of such conflicts. I will at the end of this presentation leave you to determine whether indeed, such conflict exist in the decisions of the courts, and if yes what the impact of such decisions could or might be in the forthcoming elections.

To enable me situate this topic properly, I seek the indulgence of the organizers to permit me take the liberty to use the word “judgment’’ interchangeably with the word “decision” as used in several provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) since Section 318 of the Constitution now interprets or defines a decision to include a judgment or order, so as to accommodate other determinations which do not amount to judgments, such as rulings. This is particularly so as the possibility of conflicting rulings exist very well in the determination of disputes before the courts/tribunals.

(A)          Public Perception:

The Chairman of the Independent National Electoral Commission (INEC), a stakeholder in the electoral process, is one person that cannot be ignored when matters regarding the elections come into discourse. I have chosen to make reference to him within the context of public opinion, not necessarily for the purpose of ascertaining the correctness or otherwise of his view on the subject. His comment at the conference convened by the President of Court of Appeal, on the subject under review, as quoted by ’’This Day newspaper’’ of 16th May 2016.

“The Chairman of the Independent National Electoral Commission (INEC), Professor Mahmood Yakubu, hit the nail on the head during the opening ceremony of the conference when he declared that, contrary to the subsisting judgments of the Supreme Court, there were indeed conflicting decisions by the appeal courts arising from the 2015 general elections. He added: ‘We are made to understand that the courts have a principle of obeying the decisions of superior courts by what lawyers call the doctrine of stare decisis’.”

On the 18th January 2018, the Chairman further lamented:  “Within three months, we received 11 court judgments and orders, almost all of them conflicting. In fact, in two days, the 15th and 16th of this month, we received one judgment and three court orders of coordinate jurisdiction. It is really a very big challenge. “

Also reviewing the address of the former Chief Justice of Nigeria, Justice Mahmud Mohammed, the Newspaper stated;

“Though, the Chief Justice of Nigeria, Justice Mahmud Mohammed was not at the forum in Abuja yesterday, but his earlier remarks about conflicting judgments will be of immense benefit to the appeal court justices/tribunal judges as they continue the review of the 2015 election petitions. The CJN, who admonished the justices of the court of appeal to be consistent, added: “As the guardians of the law, we must not only be just but also convey certainty in our justness. My Lords, it bears reminding that the overriding objective of every legal system in the world is to do justice. However, this cannot be achieved where there is confusion as to the state of the law as pronounced by the court.

“We are not allowed to continue to shift the goalposts when the game is on. We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal. Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials.”

(B)          Newspapers Commentaries:

Editorial commentaries and articles have also x-rayed the performance of the judiciary particularly in relation to election petitions. One seemingly common area of expression appears to be with regards to the issue of conflicting judgments. This day Newspaper reporting on the conference convened by the President of the Court of Appeal, in 2016, in its publication of 18th May 2016 had its headline;

“Election Petition Judgments Come under Scrutiny”, And proceeded to state as follows;

“A step in the right direction: Perhaps, this is how best to describe the conference convened during the week in Abuja by the President of the Court of Appeal, Justice Zainab Bulkachuwa, for justices of the Court of Appeal and Election Petition Tribunal judges. The meeting essentially was to x-ray the 2015 election petitions handled by tribunals and various divisions of the court. It is sad and a great pity to note that the Appeal Court suddenly became the most inconsistent court in Nigeria with different divisions giving different interpretations to the use or non-use of card reader machines during the 2015 general elections.”

Similarly, the Vanguard Newspaper undertook an Editorial view on the conference and stated, thus;

“Interestingly, the 2015 general elections and the colour of judgments emanating from the Court of Appeal have somewhat lent credence to the wisdom that informed the Electoral Act amendments. In the last couple of months, the Appeal Court had delivered what can best be termed conflicting judgments in some of the National Assembly and governorship election petitions brought before them. Curiously, some of the facts and principles of the petitions are similar. While we will refrain from commenting on some of these cases in adherence to ethical standards we, however, commend the timely intervention of the Chief Justice of Nigeria CJN, Justice Mahmud Mohammed.

In its recommendation or counsel the Vanguard urged thus;

“That is why we are adding our voice to that of the CJN to urge the three wise men (including women) on the Court of Appeal bench to employ deeper jurisprudential perspectives in their judgment delivery, especially in cases with similar facts. As it is the practice in court system, the Appeal Court, in deference to the Supreme Court as the highest court in the land, should be guided by and follow the latter’s precedents. This is so because as Justice Mohammed observed, there cannot be justice, where there is confusion as to the state of the law as pronounced by the court. We also recommend the CJN’s piece of advice on the need for the Court of Appeal to have an internal Law report for Justices use either electronically or in print. Equally important is the wise counsel of Niki Tobi JSC (as he then was) that immediately a judgement is delivered in one division of the Court of Appeal, it should be sent to the other division instantly. This will engender uniformity and consistency in judgments.

Earlier, Comrade Chima Ubeku, is quoted to have said in his article titled “Conflicting Judgments in the Nigerian Court and the CJN’s lamentations: Matters Arising” the following words;

“It would be recalled that during the conferment of Senior Advocate of Nigeria (SAN) honours on 17 lawyers in April, 2010, former NBA President, Oluwarotimi Akeredolu (SAN) had said: “The bar has noticed with increasing discomfiture the conflicting decisions emanating from our appellate courts.

“The Court of Appeal has found itself in an embarrassing quagmire arising from the disparate pronouncements on matters which are, as lawyers will say, ‘on all fours’ with all decisions reached by the same court.”

I have deliberately taken this route of reviewing or making reference to statements, opinion and views expressed in different fora to show that the subject matter is a reality at the public domain. This leads to the poser:

When are judgments said to be conflicting?

In my opinion, Judgments are said to be conflicting when two different decisions are arrived at or reached in a situation where the same facts or the same provision of a statute is interpreted. A judgment is literally said to be in conflict with another (possibly) a previous judgment where an earlier judgment has made a pronouncement on a particular issue, and a subsequent judgment on the same facts, makes a contrary pronouncement on the same issue in a subsequent case.

Where the statute or law under interpretation in a subsequent case is the same that was interpreted in the previous case and the facts of the present case are the same, “on all fours”, as is commonly referred to, with the facts of the previous case or almost so, the later decision will be said to be in conflict with the previous if it decides differently or makes a different pronouncement.

Therefore one judgment will be said to conflict with the other only when the later decision interpreting same law, statutes or Rules of court based on the same or similar facts and circumstances with the previous, decides differently. A later judgment cannot be said to conflict with the previous if the law or statutes under consideration is different or the facts and circumstances differ from the previous.

On the other hand the word “impact” as defined by Merriam Webster Dictionary include: “to have a strong and often bad effect on something or someone; “the force of impression of one thing on another: a significant or major effect.

There is no doubt that actual and not imagined instances of conflicting judgments of Courts, impact negatively on the integrity and image of the judiciary. This than leads me to the poser:

2. CONFLICTING JUDGMENTS- A New Vista?

Are conflicts in court decisions new in our legal jurisprudence?

I dare say without equivocation that the answer to the above poser is clearly in the negative. Conflicting decisions in the judgments of Courts of concurrent jurisdiction are not new.

Conflicting judgments or decisions have been with us in Nigeria for perhaps as long as elections have held in recent times. It is undoubtedly such conflicts that informed periodic amendments of the Electoral Act. One such amendment has made it possible for election in Governorship cases to now terminate at the Supreme Court instead of the Court of Appeal.

What seems to have led to the public outcry is the frequency of such conflicts and the brazen dimension such conflicts have assumed lately in respect of the same subject matter particularly as it touches on election petitions.

Before the 2015 elections, we had the problem of conflicting decisions of not only the Election Petition Tribunals but also of the various Divisions of the Court of Appeal.  I will make reference to a few here.

(i)            Applications for issuance of pre-hearing notice.

This provision predated the 2011 provision of the First Schedule, but never received such attention until the 2011 era of election petitions as judicial authorities reveal. The Supreme Court held that failure to comply with para. 18 First Schedule of Electoral Act was a jurisdictional issue and would lead to a dismissal of a petition. (OKEKE V YAR’ADUA) . In 2011, the Court took the view that failure to comply with the pre-hearing requirement in para 18 of First Schedule of Electoral Act was not a jurisdictional point. (ABUBAKAR V NASAMU)

Paragraph 18 of the First schedule had provided for how pre-hearing sessions are to commence. The first time this provision was tested was in the post 2011 general elections. Different interpretations were given to this provision. While some divisions of the Court of Appeal held that a letter to the secretary of the Tribunal suffices, see LABOUR PARTY V INEC & ORS , PDP V DANLELE & ORS , some other Divisions held otherwise, see AYUBA & ORS v INEC &ORS . This was eventually settled by the Supreme Court using the judicial process.

(ii)           When time to file petition starts to run.

Until the Constitutional amendment of section 285 (5), the provisions regarding time for filing election petition was a matter of the Electoral Act as provided in  Section 134 (1)of the Electoral Act.

Some judicial decisions included the date of declaration as forming part of the dates to be counted . The Court of Appeal, interpreting similar provisions of the section 285(5) of the Constitution, held that the date of declaration of the result is inclusive of the computation for the date of filing an election petition.

Other decisions excluded the date of the declaration. See PDP V AYEDATAWA &ORS

(iii) INEC Guidelines on accreditation.

In AGBAJE V. FASHOLA , there was an issue of the ink colour used for accreditation of voters which was found to be different from the one prescribed in the manual for the conduct of the election. The Court of Appeal held in that case that the issue of difference of the ink was inconsequential and not substantial to nullify the election. However, in the case of Fayemi v. Oni   delivered on February 15th 2010, the Court of Appeal nullified  the election in 63 out of 177 wards in Ekiti State because the colour of ink used was different from that stipulated in the manual for the conduct of the election. In the case of the Ogun State Governorship Election- AMOSUN V. DANIAL , the issue was one of an expert witness called to examine and analyse electoral materials. The Court of Appeal held in that case that one TUNDE YADEKE who was called as an expert was not an expert.

wever in the case of AREGBESOLA V. OYINlOLA , the Court of Appeal held that the same Tunde Yadeke who was also called as an expert in the case was an expert (See paper titled conflicting judgments of Appellate Courts in Election matters by OIadipo Okpeseyi Esq SAN).

(iv)  Accompanying witness statements on Oath.

In IBRAHIM VS. INEC, it was held that, the absence of the exact words in the concluding part of an affidavit is not enough to render the deposition invalid, inadmissible or incompetent. However in a subsequent decision in OBUMNEKE VS. SYLVESTER, the question was whether a witness statement on Oath, must use the exact words in the First Schedule of the Oaths Act 2004, for it to be admissible and valid. Here, the Court held that failure to use the exact words or format prescribed by the legislature in the First schedule to the Oaths is fatal.

(vi) Status of disqualification of candidate in a re run election.

There were also conflicting judgments on the eligibility of the political party that sponsored a disqualified candidate to participate in a re-run election until that was settled by the Supreme Court .In LABOUR PARTY VS INEC , the Supreme Court held that where an election is nullified and a fresh or re-run election ordered, the political party cannot nominate another candidate to contest in the fresh or re-run election in that the time for nomination had elapsed. It follows therefore perforce of that decision, that the political party cannot participate in the re-run or fresh election since it cannot participate without a candidate. This judgment was followed by the Court of Appeal in ISIAQ v. SONIYI .

Unfortunately, conflicts in judgments did not end with the 2011 elections. There were also conflicts in judgments that were given in respect of disputes that arose from the 2015 elections.

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