Basically, “Lex non deficere protest in justitia exhibenda”, is a Latin legal maxim which implies that the law cannot fail in dispensing justice.It is expected that the primary aim of any adjudicating process ought to be geared towards occasioning a harmonious marriage between judgement and justice. Consequently to achieve the end of justice, the law not only requires that all parties to any given dispute be heard (audi alteram partem), but insists on strict adherence to the principle of “Fiat justitia ruat caelum”, another Latin maxim that means “Let justice be done though the heavens fall.”
While saluting the industry deployed by their Lordships in arriving at the judgement of the Apex Court on 21st February,2014 in the Kogi gubernatorial tussle, I cannot help admitting that I do not share the views of the honourable Supreme Court Justices as a careful analysis of the judgment reveals that the Supreme Court committed several errors in both facts and law and also overlooked the vast amount of evidence presented before it , while arriving at the decision.
My Lords held in paragraph two (2) of the lead judgement written by Bode Rhodes Vivour,JSC that: “The facts are these: On the 9th day of January,2011 the PDP conducted its primaries to decide who it’s candidate would be for gubernatorial elections in Kogi State slated for April 2011. The appellant,and the 2nd respondent,both members of the PDP participated in the primaries”
With respect I submit that, it amounts to delivering a judgement without justice by relying on a ‘fact’ that is non-existent and farcical Let me emphasize here that, none of the parties to the suit made such averment. So, how did their Lordships arrive at that conclusion?Why would my Lords render an opinion on facts that were not before them nor averred by any of the parties?
What is more serious is the confidence and certainty with which the Justices relied on the said non-existing ‘fact’ throughout its Judgment to dismiss the case. It was simply a clear reminder of the many dramatic twists and intrigues the case suffered at the level of the Appeal Court; as the date for the judgement on the case at the appellate court suffered up to four adjournments.
It was initially fixed for 20th Dec.2012 , rescheduled to 16th Jan., 2013 and was again postponed to Tuesday 28th January,2013 before the court finally delivered the judgement on 31st January 2013; making it the fourth time the judgement would be postponed and the first time such a thing will happen in the history of the Court of Appeal.
The Supreme Court ap
peared to also be in serious error when it held that,the appellant was not a party in Marwa v Nyako and as such could not derive any benefit from the judgement.
With much respect to their Lordships decision, the Supreme Court, by the decision in Marwa v Nyako invalidated the decisions of the two lower courts, set aside and nullified all rights or interest that may have accrued from the decisions and of course restored whatever and whichever interest that was suspended or put in abeyance during the subsistence of the of the decisions of the lower courts.
Against the foregoing we submit that it was the decisions of the Federal High Court and Court of Appeal (that were set aside by the Supreme Court in Marwa v Nyako) that stalled and hindered Appellant’s already restored rights to contest election as governor of Kogi State since his name had already been forwarded to INEC (the 1st Respondent) as its candidate for the said election. Legally and logically, if it was the decision of the Court of Appeal and Federal High Court that hindered the Appellant from contesting; the setting aside of those decisions by the Supreme Court revived his already vested right.
Put differently, since all parties are ad idem that is was the decisions of the Federal High Court and the Court of Appeal (giving rise to the appeal and decision in Marwa v Nyako) that frustrated Appellant’s already vested right to context election as governor, it will amount with all respect to standing logic on its head to argue that a setting aside of those decisions would not confer any benefit on the Appellant irrespective of whether he was a party to the proceedings or not.
With much respect, I assert that, the setting aside of those decisions mandatorily conferred appellant with benefits qua locus, because the law is clear that the effect of an appellate court setting aside the decision of a lower court is that in the eyes of the law the decisions of the lower court did not exist. See, Waziri & Anor v Ali & Anor (2009) 4NLWR (Pt. 1130)178 at 221 and 227 where the court held that a judgment delivered in respect of an appeal from the decision of a trial court, being one in continuation of the case before the trial court is deemed to have started from the date of the decision of trial court.
Decision of trial court
The court further held that no legal consequence can be derived from the judgment of the lower court which has been set aside or declared a nullity. Which was why, in compliance with the January 27, 2012 decision in Marwa Vs Nyako, INEC held governorship elections in Adamawa State on February 4, 2012, in Bayelsa State on February 11, 2012, in Sokoto State on February 18, 2012 and in Cross River on February 25, 2012.
But INEC refused to hold fresh governorship election in Kogi State after the judgement. Therefore, it is crystal clear that the nexus between the Supreme Court judgment in Marwa v Nyako and the Appellant is evidently clear,unassailable and cannot be impeached by any impartial and unbiased panel.
With much respect to their Lordships decision in this matter, I am of the view that their Lordships failed to distinguish between “facts” and own interpretations and thereof making it look as if it were for the purpose of arriving at a predetermined conclusion when they held that, the appellant(Jibrin Isah) participated alongside 2nd respondent( Idris Wada) in the September 2011,that was conducted during the pendency of INEC’s appeal at the Supreme Court in Marwa vs Nyako.
The fact is that,the falsity of the assertion of their Lordships is confirmed in a document in respect of the said 2nd Primary Election prepared by the 1st respondent(INEC) titled: “REPORT OF THE SPECIAL STATE CONGRESS OF THE PEOPLES DEMOCRATIC PARTY (PDP) HELD ON 22ND SEPTEMBER, 2011 AT THE MINI STADIUM, LOKOJA, KOGI STATE” ,which was tendered before their Lordships (certified true copies on pages 1906-1909 of the records) where it was clearly stated as follows: “It is noteworthy to observe that only 3 out of the 7 cleared aspirants addressed the delegates at the venue.
Second primary election
They were Addulrazaq Isa Kutepa, Capt. Wada Idris and Mr. Philip Salawu (Deputy Governor of Kogi State), and the remaining four (4) were absent.” Besides,the records before their Lordships puts it beyond doubt that the appellant through his counsel intimated the 1st respondent (INEC) vide a letter of 17th November, 2011 of the illegality of the second primary election and the subsequent general election.
In view of the germane facts drawn from the records, it is without doubts that the Appellant abstained from the second illegal primaries which was held on the basis of the Federal High Court and Court of Appeal decisions and which was set aside by the Supreme Court in Marwa vs. Nyako (supra).
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