In this piece, Ise-Oluwa Ige examines the background facts of the lawsuit filed by Mr. Bashir Sheriff Machina at the Damaturu Division of the Federal High Court to challenge the decision by the All Progressives Congress, APC to forward the name of a presidential aspirant, Dr Ahmad Ibrahim Lawan to INEC as its candidate for the February 25, 2023 Yobe North Senatorial election when he never participated in the party’s primary poll, reviews lawyers’ views on the law applicable to the facts of the case and the logic in the majority decision entered by the apex bench and argues that the Supreme Court decision in the instant case not only stood logic on its head but also portrays the apex bench as a court under amnesia for elevating technicalities over substantive justice in the instant case as against its 2007 precedent in Amaechi vs Omehia’s pre-election case.
By a split judgment of three to two, a five-member panel of the Supreme Court of Nigeria on February 6, 2023, declared the incumbent Senate President, Ahmad Ibrahim Lawan as the senatorial candidate of the ruling APC for Yobe North in the upcoming February 25 senatorial election in the country.
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That was after the court quashed the concurrent judgments of both the Damaturu Federal High Court and the Abuja Court of Appeal which had earlier confirmed Bashir Sheriff Machina as the candidate of the APC for the Yobe North Senatorial poll.
Yobe North is one of the three senatorial districts in Yobe State, comprising Bade Local Government Area, Jakusko Local Government Area, Karasuwa Local Government Area, Machina Local Government Area, Nguru Local Government Area and Yusufari Local Government Area.
The two other senatorial zones in the state are Yobe South and Yobe East.
The apex bench, in its majority decision delivered in the case by Justice Centus Chima Nweze, held that it found it difficult to uphold the concurrent judgments of the lower courts which declared Machina as the flag bearer of APC for the senatorial election because he wrongly approached the Federal High Court by an originating summon instead of commencing the suit by writ of summons.
The court further explained that the lawsuit filed by Machina was laced with grievous allegations of fraud against both the APC and Lawan which cannot be resolved by originating summon but by writ of summons.
Vanguard reports that a civil action before a higher court (High court, Federal High Court or National Industrial Court) is commenced by either a writ of summons where the dispute is contentious, or by an originating summons where the dispute is non-contentious, or by an originating application depending on the nature of the dispute.
It is trite that where a party in a case inappropriately commences a contentious lawsuit by way of originating summons, the trial judge can suo motu convert the originating process to writ of summons to enable the court do justice in the case instead of delivering mere judgment devoid of justice.
Vanguard, however, reports that Machina knew that the best method of approaching the court in his case was by way of writ of summons but had to sue by originating summons because a Practice Direction by the Chief Judge of the Federal High Court in July 2022 required that.
Machina stated the fact before the Supreme Court and had added that if he had failed to comply, the trial court would have declined his case.
But in the majority decision of the Supreme Court, Justice Nweze insisted that given the contentious nature of the case filed by Machina which bordered on allegations of fraud against the APC and Lawan and which required calling of witnesses to prove same, it was inappropriate for his case to be commenced by originating summons meant for non-contentious issues of facts and law.
Two other justices on the five-member panel of the court concurred with the leading judgment of Justice Nweze.
However, Justices Adamu Jauro and Emmanuel Akomaye Agim, disagreed with the majority judgment and wrote a dissent.
In their dissent verdict, they held that given the totality of the facts before the court, both the Federal High Court and the Court of Appeal were correct in their findings in declaring Machina as APC’s Senatorial candidate for Yobe North.
The two Justices held that Machina was lawfully nominated because the primary election of May 28, 2022, which produced him was lawfully conducted in line with the provisions of the law.
Justices Jauro and Agim insisted that APC conducted an unlawful primary election because the May 28 primary election was not cancelled before that of June 9, 2022, that purportedly produced Lawan, describing it as illegal, unlawful and a breach of section 285 of the 1999 Constitution.
Besides, they held that Lawan had in an undisputed letter to APC voluntarily withdrew his participation in the primary election for the presidential election.
They contended that INEC was specific that it witnessed the May 28 primary election that produced Machina but did not witness that of June 9, 2022 because there was no notification from APC to that effect.
They therefore dismissed the appeal by the APC for being incompetent and unmeritorious.
It was, therefore, not surprising that Machina’s case which itself split the five-member panel of the Supreme Court, also divided the polity into two opposing camps, one applauding the majority decision of the apex bench and the other hailing the minority verdict.
Facts of the case
Senate President, Ahmad Lawan has been in the National Assembly as a federal lawmaker for 23 unbroken years.
He is at liberty to re-contest the upcoming senatorial election but for whatever reason, Senator Ahmad Lawan, sometime last year, decided to give a shot at the country’s number one seat—the Presidency.
He bought the Presidential Nomination and the Expression of Interest forms.
Lawan’s purchase of the presidential nomination form automatically followed that he had no further interest in keeping his senatorial seat.
Bashir Machina, who himself, is not a neophyte in politics, had eyed the Yobe North Senatorial seat occupied by Lawan, seized the opportunity and aspired for Lawan’s seat.
Amid the pre-primary tension, the National Chairman of APC, Abdullahi Adamu, had announced Lawan as the consensus presidential candidate for the party.
But 13 APC governors from the Northern region pulled the rug from his feet, by declaring their support for a southern aspirant to fly the APC ticket.
The former Lagos State Governor, Bola Tinubu, eventually won at the primary, polling 1,271 votes to defeat 13 others in the race, including Lawan who came distant fourth with a lean 152 votes.
Unsure of clinching the APC presidential ticket, Lawan had to equally purchase the senatorial nomination form.
Amid horse-trading for the presidential ticket, the APC senatorial primary was conducted with Machina winning the ticket for Yobe North on May 8, 2022
In the primary, Machina, who was the sole candidate, got 289 votes.
But moments after losing out in the APC presidential primary election in June, Mr Lawan, sought to return to the upper legislative chamber in 2023.
Unfortunately, Mr Lawan did not participate in the original APC Yobe North primary held on May 28, 2022, because he was contesting to be the party’s presidential candidate.
Nevertheless, by a high-wire political gymnastics, the APC claimed that Mr. Danjuma Manga, the party’s official that chaired and officiated the 28th May primary election which produced Machina as Yobe North Senatorial candidate, was not authorised to do so by the party’s National Working Committee, NWC.
The party consequently conducted a fresh primary on June 9, 2022, without informing INEC of its decision to so do or inviting it to monitor the fresh primary poll.
Vanguard reports that the election held less than 24 hours after Lawan lost his presidential bid on June 8, 2022.
“A senior Nigerian lawyer called me tonight to lament that he felt trapped in a “scene of profound judicial hooliganism”. His turn of phrase captured the situation in cold relief. Sadly, I was unable to provide him with much comfort. Judges have burglarized election season.”
Odinkalu had wondered whether Justice Ariwoola-led Supreme Court was under amnesia to have quickly forgotten what the same apex court did in 2007 when in a judgment of unprecedented audacity, it sacked Omehia, affirming Amaechi as the winner in which he did not campaign on the account that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities which (technicalities) Supreme Court on February 6, 2023, elevated over substantive justice in the Machina case.
and by virtue of the provisions of Section 115(d) of the Electoral Act, Dr. Ahmad Lawan, could not, by any stretch of imagination be made a senatorial candidate of the APC without going through the primary, except by judicial abracadabra.
It is also not in doubt that cases are not decided by court simply by looking at mere facts presented by parties before it but also by applicable laws, however, the instant case of Machina appears to be sui generis in the sense that the Federal High Court practice direction rolled out by its Chief Judge mandated all aggrieved plaintiffs in pre-election suit to approach the court for redress by way of originating summons regardless of whether the case is contentious or not which Machina did. One would think that the majority decision of the Supreme Court would take judicial notice of the peculiar circumstance surrounding the case to dispense justice rather than hiding under narrow technicalism to deliver judgment in the matter.
Finally, it would appear apposite that the Supreme Court, in this case, ought to have guided itself by its precedent in the Amaechi V Celestine Omehia’s case when it pronounced that “judgments of this court must not be final only in name, but must be seen to be really final in the sense that they have legal bite that makes the judgments truly conclusive. All issues that will make its judgments reasonable and conclusive must be clearly addressed by the Supreme Court. This court has a standing and rigid invitation to do substantial justice to all matters brought before it. Justice to be dispensed by this court must not be allowed to be inhibited by any paraphernalia of technicalities.”