Ortom’s Victory at the Benue Guber polls cannot be snatched as rumoured

SEBASTINE HON, SAN, FCIArb.

I feel strongly impelled and overly burdened to respond to the rumour gaining fast ground that if the All Progressive Congress, APC, persists in the Dr. Samuel Ortom candidacy, his victory will after all be pyrrhic, because his opponents at the general elections will easily ‘collect’ it from it. This unfounded rumour is based on alleged malpractices at the APC primary elections of 11/12/2014.

Since I am chief counsel to the APC in the ongoing litigation filed by Dr. Ortom’s colleagues, I will not at all comment on the strength of the case put forward by the APC in Dr. Ortom’s defence. However, by His grace, we have a ROCK-SOLID DEFENCE in that matter. The rest is for the courts to determine. I will not comment further.

I will not, on the other hand, refrain from offering my opinion on the rumour that even if Dr. Ortom wins at the general elections in March, 2015, the candidate of any of the other political parties who comes second in terms of votes cast and coverage will have Dr. Ortom’s victory nullified at the election tribunal and will easily ‘collect’ that victory for keeps. THIS IS A TOTAL FALLACY!

The history of our electoral jurisprudence had always being that the question of selection or nomination of candidates for elections was an internal political party affair. See, for instance, Dalhatu vs. Turaki (2003) FWLR (Pt. 174) 247 S.C.

However, the National Assembly, in a show of legislative activism, enacted, in 2010, for the first time in our history, a provision that provided some sort of remedy for aggrieved aspirants who participated in a primary election and felt aggrieved – by permitting them to approach the courts for remedy. The said provision is section 87(9) of the Electoral Act, 2010, as amended, which is to the following effect:

87(9) Notwithstanding the provisions of the Act or rules of a political party, an aspirant who claims that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State of FCT, for redress. [Emphasis ours]

The above subsection talks of “an aspirant” only being the complainant and not other persons. This means that only such “aspirant” and none other shall be clothed with locus standi to sue pursuant to the said section 87(9).

Thus, commenting on the provisions of this subsection, the Supreme Court held in Olley vs. Tunji (2013) All FWLR (Pt. 687) 625 at 661A S.C., as follows:

The jurisdiction vested by the above provision is circumscribed, so as to shield the court from being enmeshed in the murky waters of politics.

His lordship, after explaining further the import of the said subsection and after discussing briefly other issues, held on page 661C thus:

The court cannot exercise its general jurisdiction in a claim brought pursuant to section 87(9) of the Electoral Act, 2010 (as amended). [Emphasis ours]

The legal implications of the above dicta are: (a) that section 87(9) is of limited application and cannot be invoked generally by any Tom, Dick and Harry; (b) that the said subsection can only be invoked by the person(s) named therein (namely, aspirants at the primary election); (c) that the subsection cannot be utilised to invoke the “general jurisdiction” of the court; because the court would not want to be “enmeshed in the murky waters of politics.”

The Supreme Court reached a similar decision in the case of Nwaogu vs. Atuma (2013) All FWLR (Pt. 669) 1022 at 1039, per Mohammed, J.S.C., as he then was, now the Chief Justice of Nigeria, where it held that only the aspirants can sue to enforce section 87(9) and not other persons.

The apex Court continued with this reasoning in several other cases. For instance, the views of the Justices of that Court in Adebayo vs. PDP (2013) All FWLR (Pt. 695) 203 S.C., on the only instances when section 87(9) of the Act can be invoked will be reproduced here as follows:

Commenting on its earlier decision in Lado vs. CPC (2012) (Pt. 607) 598 S.C., Onnogehn, J.S.C., who delivered the lead judgment, held on page 220G-H, refusing to overrule the said decision, thus:

What we should understand is that a party, in an action founded on party nomination for elections who fails to bring himself within the provisions of section 87 of the Electoral Act, 2010, as amended, has no cause of action to be enforced in the courts and as such, the courts will have no jurisdiction to entertain such an action particularly as the issues as to who should be a candidate of a political party remains a political question within the domestic jurisdiction of the political parties and as such not justiciable. [Emphasis supplied]

The word party in the above dictum includes any person or political party that sues challenging the election, in March 2015, of Dr. Ortom and basing his/its legal challenge on the primary election of the APC conducted on 11/12/2014. This submission will gain more strength from the concurring judgment of Justice Galadima, on page 247, as follows:

It has been decided that a party in an action founded on party nomination for elections who fails to bring himself within the provisions of section 87 of the Electoral Act, 2010 (as amended), has no cause of action to be enforced in the courts and as such the court will have no jurisdiction to entertain such an action, particularly as the issue as to who should be a candidate in a political party still remains a political question within the domestic jurisdiction of the political parties, and therefore not justiciable. [Emphasis supplied]

Justice Peter-Odili, on her part, was even more incisive, when she held on page 258 thus:

The provisions of section 87 of the Electoral Act only come to play where an aspirant is aggrieved that the provisions of the Act [have] not been complied with in the process of the selection of a candidate. [Emphasis supplied]

The question now is: Was any of the political parties warming up to challenge Dr. Ortom’s possible victory at the general election in March 2014 an aspirant in the APC primary election of 11/12/2014? The answer is a capital NO!

Of grave importance is the case of CPC vs. Ombugadu (2013) All FWLR (Pt. 706) 406 at 444B-C S.C., where Ngwuta, J.S.C., delivering the lead judgment of the Supreme Court, after quoting the provisions of section 87(9), held in emphatic terms as follows:

Two conditions must be satisfied before the jurisdiction donated by the section reproduced above can be ignited:

  • The plaintiff is not at large, he/she must be an aspirant.

(2)       In the same vein, the complaint is not at large, it must be founded “in the selection or nomination of a candidate for an election.” [Emphasis supplied]

Peter-Odili, J.S.C., in her concurring judgment, held on pages 468F-469C, as follows:

I would like to refer to the case of P.D.P. vs. Sylva (2012) All FWLR (Pt. 637) 606, (2012) 13 NWLR (Pt. 1316) 127 at 126 and 148 in circumstances similar to the present. This court had this to say:

Section 87(9) of the Electoral Act confers jurisdiction on the court to hear complaints from a candidate who participated in a party’s primaries and the conduct of the party’s primaries. The facts in this case are conclusive that the 1st respondent did not participate as a candidate in the PDP primaries which held on 19th November, 2011, to choose the party candidate for general elections for Governor of Bayelsa State which was fixed for 12 February 2012. The 1st respondent, not being a candidate at the primaries cannot be heard to complain about the conduct of the primaries. Section 87(9) of the Electoral Act is thus not applicable.”

The court went on to emphasise thus:

……..”for any member of a political party to question any results of party primaries conducted under the Act of 2010 (as amended) he must bring himself within the ambit of an aspirant i.e. a member who has participated in the said party primaries otherwise his action is not maintainable for want of locus standi.”

The above quote from this court really says it all….. [Emphasis supplied]

The Supreme Court reached the same decision in Emeka vs. Okadigbo (2012) All FWLR (Pt. 651) 1426 S.C.

From all these decisions above, the highest court of the land has been consistent not only in holding that a person or party that did not participate in a political party’s primary election cannot invoke the courts’ jurisdiction for want of locus standi, but also that the courts would lack of jurisdiction to delve into the internal affairs of the political party that conducted the primary election! This effectively embargoes or eclipses any possible challenge by any other person/political party against Dr. Ortom’s emergence as the APC candidate after the March, 2015 general elections!

The second reason why such a legal challenge will not be possible is that it will be stale by the time general elections are conducted in March, 2015. Thus, in Salim vs. CPC (2013) All FWLR (Pt. 677) 613 S.C., the Supreme Court unanimously held in very emphatic terms that issues about the disqualification, nomination, substitution and sponsorship of candidates for an election precede the general election; hence are pre-election matters. It concluded that if any person sues after a candidate has been sponsored and has participated in the general election, the suit will be declared as being stale.

Similarly, Mohammed, J.S.C., (as he then was – now Chief Justice of Nigeria), held in Nwaogu vs. Atuma (2013) All FWLR (Pt. 669) 1022 at 1039, in refusing to join to the suit other persons who were not aspirants in the disputed PDP primary election, held in emphatic terms, inter alia, thus:

I wish to emphasise that the dispute between the parties in the appeal being a pre-election dispute cannot be expanded or be transformed into an ordinary civil case to accommodate the applicants…. [Emphasis once again supplied]

It must be noted that the proponents of the theory that the issues surrounding Dr. Ortom’s candidacy are both pre and post-election issues rely on the obiter dicta of Onnoghen and Peter-Odili, JJ.S.C., in Dangan vs. Usman (2013) 6 NWLR (Pt. 1349) 50 at 89-90E-H and 106F-107D S.C., where both Justices, delivering concurring judgments, held that such issues are both pre and post-election issues.

To all such arguments, I submit, in firma terra (“on firm grounds”) that the opinions of these two respected Justices in that case were obiter because the only issue that went to the Supreme Court was the issue of jurisdiction. In law, only ratio decidendi (reasons for decision) bind as settled law and not obiter dicta (other statements that have no bearing on the reasons for decision). See firmly on this: Dairo vs. UBN Plc (2007) All FWLR (Pt. 392) 1846 at 1900 S.C.

Secondly, it is settled law that concurring judgments which materially differ from the lead judgment are not binding precedents to be followed. See firmly on this: Oloruntoba-Oju vs. Abdul-Raheem (2009) All FWLR (Pt. 497) 1 S.C. In Dangana’s case, Justice Adeleke delivered the lead judgment and she did not touch on the question whether or not dispute in a primary election is both a pre and post-election matter! The passing remarks made by Justice Onnoghen and Peter-Odili, JJ.S.C., are therefore, with due respect, not binding precedents to be followed.

Thirdly – and this will definitely sweep the carpet off the feet of those protagonists of ‘Dr. Ortom’s victory will be snatched’ – in many of the decisions of the Supreme Court already discussed above, both Onnoghen and Peter-Odili, JJ.S.C., delivered lead judgments, which rank superior to the obiter dicta they offered in Dangana’s case, supra. Most importantly, it was Justice Odili who delivered the lead judgment in Salim vs. CPC, supra, where the Supreme Court held emphatically that issues of nomination or selection of candidates are strictly pre-election matters that cannot be raised after general elections! Beloved Benue State indigenes, does this not settle all these issues?

In conclusion, questions might be asked on the prospects of the current suit wherein the aspirants in the 11/12/2014 primary election of the APC are the plaintiffs. I will still, as a senior lawyer, refrain from commenting on the issues in that suit; but I can assure all that we have a ROCK SOLID DEFENCE THEREIN! Just wait for the courts!

I must emphasise that political hawks who are not well-informed will definitely rise up to react to this piece. I sincerely welcome them and hope they will refer to decisions of courts which are superior to our dear Supreme Court!

Au revoirre!

SEBASTINE HON, SAN, FCIArb.

(Legal Practitioner and author)

 

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