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2007 GUBER: ALL EYES ON SOKOTO AS SUPREME COURT DECIDES NEXT THURSDAY

By NBF News
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As the people of Sokoto State wait for October 14 for the Supreme Court to rule on the withdrawal of the interlocutory appeal motion filed by the Democratic Peoples Party (DPP), lawyers have been speaking on the matter. While some people say that the apex court has power to have stopped judgment in the 2007 governorship election petition, others say the directive was a miscarriage of justice.

The Court of Appeal in Sokoto Division had written its judgment arising from the May 24, 2008 re-run election in the state. The judgment was scheduled to be delivered on February 24, but the Chief Justice of Nigeria (CJN), Justice Alousius Katsina-Alu, suspended it on grounds that he was investigating a petition written against one of the justices of the Sokoto panel.

March 16 was scheduled for the judgment, but the Supreme Court, upon oral application by a counsel to Peoples Democratic Party (PDP) stopped the appeal court's judgment, which prompted the Nigeria Bar Association (NBA), under the leadership of Rotimi Akeredolu ( SAN), to describe the action as an 'unfortunate precedent.' The group said that such order not only posed a threat to the judiciary but has also eroded public confidence in the Supreme Court.

The DPP and its governorship candidate, Alhaji Maigari Dingyadi, had applied for the withdrawal of an interlocutory appeal motion, which the apex court upheld after its panel, led by Justice Niki Tobi, gave a nod on March 10. However, Chief Wole Olanipekun, lead counsel to the Peoples Democratic Party (PDP) and Sokoto State Governor, Alhaji Aliyu Wamakko, had, on Monday, March, 12, filed a motion asking the apex court to stop the appeal court's verdict in Sokoto as well as set aside the withdrawal of the interlocutory appeal by DPP. Justice Mustapha granted Olanipekun's plea by stopping Sokoto Appeal Court from delivering judgment on the petition

On June 4, the Supreme Court reversed itself, by ruling that the DPP did not properly withdraw the appeal. Again, DPP filed a fresh motion withdrawing the appeal. Curiously, instead of giving it expeditious hearing, the matter was adjourned to October 14, 2010.

The bone of contention in the Sokoto governorship election is Governor Wamakko's eligibility to stand for the polls. The DPP said that he was not qualified to be PDP's candidate. He was, first, governorship candidate of the All Nigerian Peoples Party (ANPP), with Senator Bello Gada as his running mate. Second, he defected to PDP, where he also entered for the election, with Alhaji Mukhtari Shagari as running mate. Though double candidature is a contravention of the Electoral Act 2006, the Independent National Electoral Commission (INEC), under Professor Maurice Iwu, ratified Wamakko's nomination.

Wamakko was also accused of going into the election without a validly nominated running mate, as Shagari allegedly filed his nomination papers (INEC Form CFOO1) on April 27, 2007, 13 days after the polls.

The DPP, which fielded Dingyadi, had challenged the result of the election at the Sokoto Governorship/Legislative House of Assembly Election Petitions Tribunal and lost. It went to the appellate court sitting in Kaduna and got victory. The justices, led by Justice Zainab Bulkachuwa, unanimously upheld that Wamakko and Shagari were not qualified, ab nitio, to stand for the April 2007 election because they were not validly nominated. The appellate court declared on pages 57 and 58 thus:

The appeal court had annulled the election and ordered a re-run election, which was fixed for May 24, 2008 by the INEC. Before the re-run, DPP approached the Federal High Court, Abuja to stop Wamakko from contesting and INEC from allowing him to contest. The court declined jurisdiction on the grounds that doing so would amount to interpreting the judgment. The appeal court gave the same ruling on the matter. Having turned down the appeal, the DPP approached the Supreme Court for interlocutory appeal, seeking to amend the appeal before the Abuja appellate court.

While the legal fire works on the pre-election matter was going on, re-run elections were held on May 24, 2008 and Wamakko was again declared the winner.

Dingaydi and DPP yet challenged the return of Wamakko at the reconstituted Governorship and Legislative House of Assembly Election Petitions Tribunal. The tribunal declined jurisdiction, in a split decision on February18, 2009. The majority judgment of Justices A.M Haliru, B.E Agbatah and G.K Kaigama dismissed DPP's petition on the grounds that it was an abuse of court process, since there is a pre-election matter filed at the Federal High Court before the re-run election was held, while the other two, Justices, N. Okoronkwo and E.O Ahamioje, upheld the DPP petition and directed the swearing in of Dingyadi as the duly elected governor of Sokoto State.

Dingyadi and his party appealed against the majority judgment to the Court of Appeal in the Kaduna Division and when the new division of the Court of Appeal in Sokoto was opened, the appeal was sent there for determination. The then President of Court of Appeal, Justice Umaru Abdullahi, refused to constitute a panel to hear the matter until late 2009 when his successor, Justice Ayo Salami, set up a five-man panel led by Justice Musa Mohammed Dattijo. On January 18, 2010, the panel heard the appeal and fixed February 24, 2010 for the delivery of judgment. At this point, the DPP applied to the Supreme Court for the withdrawal of the appeal.

INEC had, through its lawyer, Yahaya Mahmood Esq, petitioned the National Judicial Council (NJC), which has Justice Aloysius Katsina-Alu, Chief Justice of Nigeria, as its chairman. He accused the panelists of bias and asked the NJC to wade into the matter. It was on the basis of this petition that the CJN wrote to the appeal court in the Sokoto division asking it not to deliver the judgment until it finished the investigation of the petitioner. Having investigated the matter and saw no substance in the allegation, the NJC permitted the Sokoto appellate court to fix a new date and Tuesday, March 16 was rescheduled for the delivery of judgment in Sokoto before the apex court capitalised on Olanipekun's oral application to put ruling on hold.

As October 14 approaches, lawyers have been commenting on the matter.

According to Emeka Ngige, a Senior Advocate of Nigeria (SAN), the Supreme Court can suspend a judgment at the Court of Appeal. He said that any order the apex court made should be obeyed.

'In this case, an order has been made in this regard by the highest court and it has to be obeyed,' he said.

On the position of the NBA in this regard, Ngige said that he is a lawyer and 'so supported the position our president who is the spokesman of the association.

'It's a long time he spoke on that; we have another president. The issue is that an order has been made and until the order of stay of proceedings is removed before the judgment can be delivered. Nothing would be done by the both parties until the appeal is disposed off,' he said.

For Fred Agbaje, a Lagos lawyer, the Supreme Court could suspend a judgment.

He said: 'If there was an appeal to the Supreme Court and irrespective of the merit of that appeal, the Court of Appeal cannot go ahead with the judgment until the outcome of the judgment at the Supreme Court. The Supreme Court cannot just arrogate itself to any judgment unless there is an appeal as the case with the Sokoto State. The Court of Appeal is a lower court to the Supreme Court and so if a matter is before the Supreme Court all lower courts, including appeal court, must wait until it is disposed off at the apex court.'

Against the position of NBA, Agbaje said he didn't see anything wrong in what the Supreme Court has done and remarked that he would not be a party to indicting the apex court. He also said that kudos should be given to Supreme Court for intervening in the Sokoto State case.

The issue of Shagari not filling the nomination as at time due, he said is an issue for the Supreme Court to decide if it is presented to it. The Supreme Court, he said, has done very well in trying to ensure sanity and stability in the system if not, Governor Chubuike Amaechi and Governor Peter Obi etc would not have been governors today.

Mr. Ben Sweet said that Section 246 of Nigerian Constitution confers exclusive and final jurisdiction on the Court of Appeal with regards to decisions from the National Assembly, governorship and legislative elections. He said it was 'unconstitutional and unlawful for the Supreme Court, even as the foremost apex court within the judicature, by virtue of its own specific jurisdiction under section 230, to entertain appeals against final decisions of the Court of Appeal, in such cases.'

He, however, said that the Supreme Court has supervisory jurisdiction and power to determine any specific issue brought before it, to ensure overall justice.

Sweet said that the Supreme Court had the power to stop controversial Sokoto State governorship election judgment.

'We most not forget that the question before Supreme Court is not an appeal stemming from the appeal court decision but an aspect, which must be settled avoid miscarriage of justice to the respondent at the lower court. However, given the general circumstances and antecedents of that case it is glaring that the respondents are intent on frustrating the Court of Appeal and delay justice in the matter. As such, the Supreme Court ought to have immediately considered the respondents application for stay as a frivolous abuse of the court's process and dealt with it expeditiously,' he said.

Another lawyer, Eke Uche, believes that Supreme Court is right in the Sokoto State matter.

He said: 'The Supreme Court has both the original and appellant jurisdiction over the Court of Appeal under the constitution, even though the Court of Appeal is the final appeal court over governorship election. In the case of Agbaso versus Ohakim, the same matter went to Supreme Court, which directed the Court of Appeal to hear the matter in its original instance.'

George Opara said: 'The point is that certain issues could be determined by Supreme Court as it happened on Rotimi Amaechi and Ararume matters. The Supreme Court has the jurisdiction and power to halt the judgment of Sokoto election petition tribunal.'

Commenting on the position of the Nigerian Bar Association (NBA) on the matter, Opara said anyone is free to interpret anything the way he or she wants but remarked that the Supreme Court is the highest court in the land and that if any matter is properly brought before the Supreme Court and it properly assumes jurisdiction of that matter, there is no problem. He doesn't believe that the position of the Supreme Court on the Sokoto election petition tribunal would, in anywhere, erode public confidence in the judiciary or affect the dispensation of justice.

'The people that are running commentary on the matter should first of all understand the issues that were brought before the apex court', he said, adding that it was wrong for INEC to have cleared Alhaji Shagari for the election since he obtained his nomination form on April 27.

Also, Barrister Emeka Iredu said the Supreme Court has the legal right to halt any judgment if there is an appeal before it in that direction.