Allowing NASS polls petitions terminate at S’Court dangerous — Adegoke, SAN

In this interview, Mr Kunle Adegoke, SAN, dissects the recent judgment of the Supreme Court which reversed the Appeal Court’s nullification of the electoral victory of Plateau State Governor, Caleb Mutfwang with emphasis on the miscarriage of justice occasioned by sacked lawmakers in the state and declared that the glaring error made by the lower court in the case should not warrant a review of relevant legislations to make election appeals in legislative election petitions end at the Supreme Court on the account that such step would not only be dangerous for justices of the apex court but also the entire judiciary.

How do you react to penultimate Friday’s judgment of the Supreme Court which reversed the nullification of the electoral victories of governors of Kano, Plateau and Zamfara states as they affect the integrity of the judiciary?

With the perverse judgment of the Court of Appeal in the three political cases involving the gubernatorial election of Kano, Plateau and Zamfara states, do you think it is not yet time for the discontinuation of the practice of elevating justices of the Appeal Court to the Supreme Court instead of appointing from both the bar and the bench?

I do not think that the three decisions above must affect the qualification of all Justices of the Court of Appeal from being elevated to the Supreme Court. It is not an automatic endorsement to justify appointment of members of the Bar or the academia to the Supreme Court. We must remember that Justices of the Court of Appeal were also appointed from the Bar and it may even be a disaster when someone from the academia whose knowledge of procedural law has not been tested by prosecution of cases, is appointed directly to the Supreme Court. The fact that it was done in the past with the brilliant examples of Professor Teslim Elias and Justice Aniagolu, will not confer a sterling endorsement on such practice in all cases.

It is imperative for us to make appointments and elevations of persons to the Bench generally to be based on merit, sound knowledge of the law and impeccable character. The same Justices of the Court of Appeal who were just elevated decided other cases that were probably endorsed on appeal to the Supreme Court. It is also the case that the law recognises the right of a party to appeal to the Supreme Court only in instances where one feels the Court of Appeal was wrong. The implication is that appeals to the Supreme Court will not ever be necessary save where parties believe that the Court of Appeal was wrong in its decision. It is not a conclusive point that Their Lordships of the Court of Appeal ought not to have been elevated to the Supreme Court because their decisions occasioned a miscarriage of justice in this instance. It is only desirable to reverse such elevation where it is established that their judgments were procured by some factors other than honest exercise of judicial discretion.

The Plateau State governor was lucky to have the perverse judgment of the Appeal Court against his election reversed. But both the national and state lawmakers whose elections were nullified on similar grounds were not lucky as they couldn’t get to the Supreme Court. What is your advice for them?

I doubt if there is anything anyone can do with respect to the decisions of the Court of Appeal in those cases of the lawmakers. Yes, it is clear that the decisions of the Supreme Court in the recent governorship appeals have shown that the lower court was perverse in its decision; that may not be a licence to approach the Supreme Court. This situation had a precedent in the case of Usman v. Dangana wherein the Court of Appeal, as the final court in senatorial election appeals, decided the case and a dissatisfied party took a step higher to the Supreme Court despite being aware that the Court of Appeal was the highest court in the matter. The Supreme Court, per Adekeye, JSC, as His Lordship then was, declined jurisdiction. That was in the leading judgment of the Supreme Court. Unfortunately, Onnoghen, JSC, in His Lordship’s concurring opinion, delved into the substance of the appeal failing to realise that the Court had no jurisdiction to pronounce thereon.

His Lordship, Onnoghen, JSC, later in Wambai v. Donatus, used the opportunity to pronounce His Lordship’s opinion on whether failure to give INEC 21 days notice of a party’s primary election amounted to invalid nomination and whether invalid nomination of a candidate was a ground for presenting election petition. His Lordship held that invalid nomination would go to qualification and hence a candidate not validly nominated could be disqualified for participation in an election thereby making same a ground for presenting an election petition.

Unfortunately, all those decisions of the Court of Appeal that followed Wambai v. Donatus went uncorrected and injustices done to the lawmakers would follow them to their graves. No remedy. The only thing that the National Assembly can do is to make election appeals in legislative election petitions to end at the Supreme Court. That will be suicidal for their Lordships of the Supreme Court as the burden would be too heavy. The injustice that will follow is much likely to be more than the one we are currently experiencing.

Do you agree with Prof. Mike Ozekhome, SAN, that the constitution should be reviewed to allow candidates that participate in both state and National Assembly elections to pursue their election appeals to Supreme Court?

I do not agree with this. There is no assurance that the Supreme Court itself cannot err in its decisions. Where the Supreme Court errs and occasions injustice, are we going to call for appeals to the House of Lords or another higher court to be established in that regard? No. I do not see that as a solution.

I believe that their Lordships of the Court of Appeal must learn a lesson from this unfortunate situation. They must be careful in interpreting the law and applying law to facts to avoid irremediable injustice like the one they just inflicted on the nation. It is not merely an injustice to the parties involved but also an injustice to the entire nation as anyone can be a victim of such wrongful application of the law.