EMMA ALOZIE looks at how the many conflicting verdicts from the Court Appeal have put the burden of judiciary redemption on the Supreme Court

 

To put it simply, the Appeal Court, which is the second in the three tier hierarchy of courts in Nigeria, has become somehow notorious, especially in the ongoing election petitions arising from the 2015 general elections.
Of the three-court hierarchies, the Appeal Court has been the most inconsistent and this has given stakeholders in the judiciary sector a cause for concern. The Chief Justice of Nigeria, CJN, Justice Mahmud Mohammed, in the recent Annual Conference of the Court of Appeal held in Abuja, poured out his mind to the justices of the Appeal Court, reminding them that they are putting the judiciary in an unnecessary spotlight.
“My Lords, it bears reminding that the overriding objective of every legal system in the world is to do justice. However, this cannot be achieved where there is confusion as to the state of the law as pronounced by the court.
“As your lordships will agree, where an aggrieved person perceives, whether rightly or wrongly, that they will not receive justice, such a situation can indeed bode ill for the community in which he lives and can lead to acrimony and anarchy.
“We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal. Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials,” the CJN said.
To put an end to a situation where a division of the Court of Appeal delivers a judgment that contradicts the one delivered by another division, the CJN advised the Court of Appeal to “have an internal law report for justices to access either electronically or in print in order to reduce the avenue for conflict in its jurisprudence.”
He equally advised them that “immediately a decision is given in one division, it should be sent to other divisions without delay.”
And true to the admonitions of the CJN, rulings/verdicts coming out from different divisions of the Appeal Court have left many wondering on what has gone wrong. For instance, in the case involving the Taraba State Governor, Darius Ishaku, of the Peoples Democratic Party, PDP, and Senator Aisha Alhassan of the All Progressives Congress, APC, the Appeal Court sitting in Abuja upturned the election petition ruling that nullified the election and upheld the election of Ishaku.
The five-man appeal panel led by Justice Abdul Aboki, held that the decision of the tribunal was a nullity. “We have duly read the submissions made by parties to the appeal and found out that the tribunal erred in its decision.
“The Electoral Act and in fact the constitution have not given such power to the tribunal to annul the victory of the appellant on the ground of improper conduct of primaries by his party. The PDP has admitted to have sponsored the appellant in its deposition. Therefore, the argument of the APC and its candidate of non-qualification of the PDP candidate are baseless,’’ he said.
Aboki said INEC and any aggrieved contestant in the primaries of the party were the ones that had the locus standi to challenge the conduct of the primaries.
“INEC is superintendent when it comes to issues of who is qualified to contest an election not the respondent. Respondents have no locus standi in this matter. They cannot challenge the primaries because none of them is a member of the PDP,” Justice Aboki said.
However, the Appeal Court, Enugu Division, in setting aside the judgment of the election petition tribunal that upheld Uche Ekwunife’s election for Anambra Central Senatorial election said the former senator was not validly nominated by the PDP. This ruling was based on an appeal brought by Victor Umeh, a candidate of the All Progressives Grand Alliance, APGA, and not by a member of the PDP, who contested the primary election with Senator Ekwunife. Whereas the Appeal Court in Taraba abhorred this practice, the one in Enugu upheld it.
Also the discordant tones of the Court of Appeal became most prominent in the case of Lagos and Rivers election petitions. Whereas in Lagos, the Appeal Court ruled that the use or non-use of card reader should not have any effect on the outcome of the election, in Rivers, the same Appeal Court said the improper or non-use of card readers was a violation of the Electoral Act.
Specifically, Justice Obande Ogbuinya, in arriving at the decision in that of Lagos said, “Paragraph (13b) displays a vitriolic attack on the irregularities germinating from the improper or non-use of smart card readers in the polling units.
“As it is, it has no life of its own as a ground. It endeavours to introduce the defects in the use of smart card readers. The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election.
“The extant Electoral Act (2010) which predates the concept (of card reader) is not its parent or progenitor, since it is not the progeny of the Electoral Act, fronting it as a ground to challenge any election does not have its (the Electoral Act’s) blessing, nay Section 138 (1). Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election. It does not qualify as one.”
However, while ruling on the appeal brought by the PDP in the case of Rivers State, Justice Dongban-Mensem, agreed with the tribunal that the Electoral Act was grossly violated and that the election was manipulated when the card reader failed on election day. The appellate court disagreed with Wike that the use of card reader was unknown to the Electoral Act, adding that the electoral body was vested with enormous powers to fashion out rules and regulations and use any equipment for the purpose of having free, fair and credible elections.
The Appeal Court, which resolved all the seven issues formulated in the appeal against the appellants, ‎held that the non-usage of the smart card reader and disregard by officials of INEC in Rivers State on the commission’s directive on the mandatory use of the card reader machine was a direct violation of the Electoral Act.
With the many conflicting rulings emanating from the appellate court, the burden now rests with the Supreme Court to right the many wrongs of the justices of the Appeal Court and rescue the battered image of the judiciary.


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