An Open Letter to the Chief Justice of Nigeria; Honourable Justice Dahiru Musdapher on the State of Election Petitions in Nigeria as it affects Benue State
By Benue Watch
Your Lordship: We, the members of BenueWatch, after a prolonged silence, would again want to raise the issues of the most barbaric and corrupt regime of Governor Gabriel Torwua Suswam, of Benue State. Governor Suswam is hell bent on frustrating all efforts to hear and determine the election petitions filed by the Action Congress of Nigeria (ACN) and her Candidate, Prof Steve Torkuma Ugbah, challenging his re-election. We note also the re-election challenge of Governor Suswam by the All Nigeria Peoples Party (ANPP) and its Candidate, Senator Prof Daniel I. Saror that has also languished. To date, these cases are yet to be determined on their merit, a denial of the fundamental and basic right of the individual to be heard.
We commend you, the Honourable Chief Justice of Nigeria, for the milestone achievements recorded in the judicial reforms you promised Nigerians upon assumption of office, and would encourage you to deepen those reforms even as your tenure comes to an end in a few months. The separation of powers, in a democratic dispensation such as ours, allocates to the judiciary role of the final arbiter and a respite to the downtrodden and the dispossessed. BenueWatch supports your efforts to actualize the role of the judiciary in this regard, and to regain the confidence of the people, by helping them get justice irrespective of who or which political party is involved. A point you emphasised when fielding questions from State House correspondents soon after your swearing in ceremony - by assuring you would do justice to all for the common good of the country. It is also worth to mention what you said when you presented the NIALS 2011 Fellows Lecture on November 10, 2011. Here, you urged Judges to note that as they sat at trials, they also stood in trial.
Your Lordship, it is in this respect that BenueWatch would like to raise the recent Supreme Court judgment in the consolidated Appeal Nos. SC1/2012, SC2/2012 ANPP v Mohammed Goni, Kashim Shettima v Mohammed Goni delivered on 17th February 2012. That ruling has left so much to be desired. Because of that ruling, Election Tribunals rightly or wrongly applied the judgment across the country thereby terminating all election petitions pending before them, including those of Benue and Akwa Ibom States, where the Supreme Court previously made de novo retrial orders on November 14, 2011. Our constitution constrains Government from encroaching on the rights of its citizens; but if they did, there was an independent judiciary to keep those rights safe. This then begs the question of why the judiciary would not hear and determine the ACN and ANPP Governorship Election Petitions in Benue State.
Senator, Prof Daniel I. Saror and his party, the ANPP had approached the Tribunal under Section 138(1)(a) of the Electoral Act 2010 (as amended) which provides thus: “(1) An election may be questioned on any of the following grounds, that is to say: (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election”, to question the qualification of Governor Suswam as ground for his petition. The Justice Munir Ladan-led Tribunal erroneously dismissed the petition that the issue of qualification was a pre-election matter as canvassed by Governor Suswam’s Counsel. This decision was set aside by the Court of Appeal, Makurdi Division, which ordered a retrial of the petition. Being dissatisfied with the decision of the Court of Appeal, Suswam appealed to the Supreme Court and the decision of the Court of Appeal was upheld. Instead of coming back to prove his innocence at the Tribunal as ordered by the Supreme Court presided over by the Honourable Chief Justice of Nigeria, his counsel filed a motion that 180 days had lapsed. The decision of the Supreme Court in the Borno State case came handy as an escape route for the Benue State Elections Tribunal who had concluded hearing and adopted written addresses of Counsel, and waiting to deliver judgment. The petition was subsequently dismissed on the 28th day of February 2012.
The following questions arise from this action:
a) If a litigant has done all that is statutorily required of him by filing his petition within 21 days but the court or Tribunal errs in arriving at a decision, can the sins of the Court be meted on the litigant?
b) If a Tribunal delivers its judgment within 180 days as envisaged by Section 285(6) of the 1999 Constitution (as amended), is a litigant not entitled to a Constitutional right of appeal under section 246 and 285(7) of the same Constitution?
c) Should section 285(6) be applied so as to deny potential litigants their constitutional right to fair hearing guaranteed under section 36(1) of the 1999 Constitution (as amended)?
d) If a litigant succeeds on appeal, wouldn’t the litigant be entitled to reap the fruits of their appeal?
e) Under the new order, is the Tribunal the final court in election adjudication?
f) Can the legislature enact laws so as to inhibit the judicial powers/independence or oust the jurisdiction of the courts under section 4(8) and 6(1) of the 1999 Constitution (as amended)?
g) Is statute of limitation applicable to the courts as we are made to believe in the Borno State case? If not, the only statute of limitation should be section 285(5) of the 1999 Constitution (as amended) which provides that an election petition must be filed within 21 days from the date of declaration of results which is capable of taking away the right of action from a litigant once he fails to comply by filing his petition within 21 days.
h) Are constitutional provisions read disjointedly so as to render others moribund?
i) Can certain provisions of the Constitution such as section 285(6) be used to cover non-qualified candidates to contest and be declared under sections 177(d) and 182(1)(j) of the 1999 Constitution (as amended)?
j) Should a respondent in an election petition benefit from mischief he has created by stalling proceedings in a Tribunal and turning round to say 180 days have lapsed?
Your Lordship, the whole world is watching as the Supreme Court would attempt to answer the posers above come May 31, 2012 when the cases of Prof Steve Torkuma Ugbah and the ACN in Akwa Ibom State will come up for hearing. We at BenueWatch are comforted by your words when you said in the open court on November 14, 2011, at the instance of Prof Steve Torkuma Ugbah and the ACN appeal hearing that came before you:
”The justice of the matter is that the petition be remitted back for hearing on the merits. I don’t know why Judges should go on with the basis of pre-hearing conference alone to dismiss a petition without hearing it on its merit. Matters must be decided on their merits. It is too early for me to start losing my head. What is the difference between a letter or ex-parte motion? Everybody is watching us. I am begging you, in the name of justice; matters should be decided on their merits and not technicalities. Our responsibility to whoever comes before us is to do justice without technicalities. Where is justice after the tribunal itself issued the pre-hearing notice, the same tribunal has fixed hearing and after some days, somebody now brought an application for the dismissal of the petition? Where is the justice in that situation? They just want to take an easy way out to finish the matter. We will say no to it. Democracy is the number of people who voted for A or B; let justice be done. The appeal succeeds and it is hereby ordered that the tribunal should hear the petition on the merits.”
It is judicial precedent and section 287(1) of the 1999 Constitution (as amended) enjoins everybody in Nigeria to comply with the decisions of the Supreme Court especially courts of lower jurisdiction. We also know as of law that once a Court order is made, whether rightly or wrongly, such an order remains subsisting, valid, extant and binding on all parties including the court that made such an order until set aside by a court of competent jurisdiction. It is therefore, strange that in the case of Prof Steve Torkuma Ugbah whose retrial order was made on November 14, 2011 for the petition to be heard on the merits by the Supreme Court could not just be reviewed by the Tribunal and Court of Appeal, but set aside. That is shocking, to say the least. What kind of precedent are we setting for the judiciary in Nigeria?
The Supreme Court has also decided in a plethora of cases that once an order is made in a particular case, it cannot be set aside by an order in another case except an appeal against that very order is made. It therefore beats our imagination hollow, how a specific order of the Supreme Court could be set aside because of the judgment in the case of Borno State when Governor Suswam, his party and INEC had the opportunity of going back to the Supreme Court to ask that the decision of November 14, 2011 be set aside.
Your Lordship, may we use this medium to also thank you for ordering an inquest into a petition against Hajia Hafsat Sadiq Soso of the Magistrate Court 2, Wuse Zone 2, Abuja by Counsel to Mr. Chidozie Ukpabi, Mr. Alex Oketa Esq. The Magistrate is trying Mr. Chidozie Ukpabi for alleged defamation of character of Governor Gabriel Suswam over certificate forgery. The young man who was in the employment of the West African Examinations Council (WAEC) had in 2005 forged a GCE/O’Level Certificate for Governor Gabriel Suswam as confirmed by the Police investigation report at the instance of the Governor’s complaint to the Magistrate. It is alleged that Governor Suswam gave the Magistrate, Hafsat Soso the sum of N20million to give Mr. Ukpabi to address a press conference, and to tell the world that he did not forge a certificate for Governor Suswam, but was rather being used by political opponents to defame Governor Suswam. This proposal was allegedly turned down by Mr. Ukpabi, which infuriated the Magistrate who threatened to send Mr. Ukpabi to jail at all cost.
May it please your Lordship to know that Prof Steve Tokuma Ugbah of the ACN and Senator, Prof Daniel Saror of the ANPP are challenging the qualification of Governor Gabriel Suswam who, in his reply to the petition and that of his party, the PDP, admitted that he did not submit any certificate to INEC and was not under any legal obligation to do so. The recent development only confirms the reason why Governor Suswam vehemently refused or neglected to submit his certificates to INEC for fear of being challenged.
We make bold to state however that, if all the antics employed by the Governor Suswam to frustrate the hearing of these two election petitions against him and such a negative approach yields a positive result in his favour, we shall regard same as a direct attempt to deny us our fundamental right. The endorsement of constitutionally unqualified candidates such as Governor Suswam of Benue State will indeed be insidious and dangerous to the sanctity and purpose of the Constitution and the hallowed principles of democratic governance.
Finally, BenueWatch salutes and appreciate the Honourable Chief Justice of Nigeria for rebuffing the inferior blackmail put together by Governor Suswam to induce you and some of your colleagues, financially in order to pervert the course of justice. BenueWatch salutes you and look forward to your courageous determination of the Benue State case that is before your court.
Thank you, your Lordship, for your attention.
May 28, 2012
The Chief Justice of Nigeria
Supreme Court Complex
Three Arms Zone, Abuja.
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