When a doctor errs, he increases the population of the cemetery. When a judge errs in a criminal case, he increases the prison population. Think of the men and women who went to hospitals to be saved by doctors but left there in coffins, not by God’s will or the handiwork of enemies who had done their worst, but because a doctor misdiagnosed their illnesses and prescribed wrong medications.
Then think of the men and women who are victims of incompetent, wrongful, mischievous or wilful misinterpretation of the law by judges. Tens or hundreds of them? No matter.
Mistakes, be they of the head or of the heart, are human weaknesses. Mankind is still paying for the mistake of our parents, Adam and Eve, who mistook God’s order not to eat the forbidden fruit as a divine joke. They lost the paradise, and so have we.
Mistakes, being they of the head or the heart, are costly, very costly. Men and women lose their liberty and freedom because of mistakes. Because of mistakes, the innocent suffers and the guilty is rewarded.
Families break up because of mistakes. Nations fight civil wars because of mistakes. Nations wage wars against other nations because of mistakes.
Religion tears people and nations apart because of the mistaken interpretation of divine injunctions. Political ambitions are scuttled by judges because of judicial mistakes in the interpretation and the application of the law. Quite often because of this, the sun sets just as it rises for many a politician because a judge mistook the letters of the law for typographical errors.
We take one case.
In the general elections of 2023, the eligible voters in Plateau State had to choose between two formidable political rivals, APC and PDP. The former was the ruling party in the state. PDP was its determined challenger. At the polls, the people took a dim view of the performance of the APC government in the state and decided it was time to change horses. They gave their thumbs up to fewer APC candidates, and more to PDP candidates. PDP won the governorship election, one senate seat and 16 seats in the state House of Assembly.
APC, like Donald Trump, refused to accept their loss. This is customary in our country. Disputing election results is a democratic right none wants to give up. It makes our democracy tick. The party that had ruled the state for eight years could not stomach its rejection by the people and being so casually tossed to the rubbish heap of Plateau State politics.
Under our laws, judges at two or three levels of election petitions must vote to either certify or decertify the people’s choice. There are two levels for legislative elections: the Election Tribunal and the Court of Appeal; two levels for the presidential election: the Court of Appeal and the Supreme Court; and three levels for governorship elections: the Election Tribunal, the Court of Appeal and the Supreme Court of Nigeria.
The wisdom of this arrangement is unimpeachable. It is to ensure that the mistake at one judicial level is corrected by wiser heads at a higher judicial level. At this point, the people and their ballot papers matter less, the law matters more.
APC took their case to the court of first instance in election cases – the governorship election tribunal, to challenge the victory of the PDP governor-elect as well as the legislative election tribunal to challenge the election of a PDP senator and 16 members of the state House of Assembly. In the three cases, the tribunal certified the results certified by INEC. PDP savoured bowls of mos.
APC disagreed with the tribunal and went to the next set of voters, the Court of Appeal. And there the law developed k-legs. There, the three-man panel of the Court of Appeal voted out the governor, one PDP senator and the PDP 16 legislators. The winners at the polls changed places with those the people rejected at the polls. And there the sun set for the legislators just when it rose.
Professor Chidi Odinkalu, a senior lawyer and a law teacher, and a very sane but angry voice in matters of law and good governance in our country, was apoplectic.
Caleb Mutfwang, the newly elected state governor, was in better luck than the legislators in his party because his case would end, not at the Court of Appeal, but at the Supreme Court. And thither he went. Their lordships voted him in. He snatched victory from the jaws of defeat.
We take it that when the law speaks, it speaks the truth and puts the devil to shame. But the PDP case in Plateau State raises the possibility that when judges at one level interprets the law differently from judges at another level, the devil snickers and is happy to see the law make an ass of itself. Here is what was in contention before their lordships at the three levels.
APC contended that the PDP candidates were not qualified to contest the elections because their candidates were not properly elected at their party primaries since the party failed to comply with a Plateau State High Court order to conduct fresh congresses to nominate its candidates for elections into the executive and the legislative branches of government in the state.
This was clearly inter-party interference. But the Court of Appeal panel agreed with the APC and nullified the elections won by all the PDP candidates. The five-man panel of the Supreme Court tossed out their decision. It ruled that the three-man panel of the Appeal Court erred badly in law.
As reported by Ameh Ejekwonyilo, the superior court said that “the order of the High Ccourt had nothing to do with the party’s power to conduct a primary election (and that) there is evidence showing that the order of the Plateau State High Court was complied with by the party.”
Justice Emmanuel Agim, who read the lead judgment of the Supreme Court, said: “We have held in a plethora of cases that the sponsorship of a candidate for election is an internal affair of a political party.” Surely, the Appeal Court judges cannot claim to be unaware of these decisions by the apex court.
Odinkalu was angry because it amounts to a crass rape of justice. He believes that the Court of Appeal panel was constituted by the President of the Court of Appeal, Justice Monica Dongban-Mensem, to do the hatchet job they did in her state.
His contention may or may not be true, but the Appeal Court decision was a breach of judicial tradition in which lower courts are bound by the decisions of higher courts. There is no room for ignorance here; there is only room for judicial mischief. Judges at the level of the Court of Appeal are senior men and women in the profession and ought to be seen to act like senior men and women, steeped in the law and the tradition established in the judiciary for all time.
It is always easy to conclude that when things go this awry, there are external factors, with the possibility of corruption in cash or kind not excepted. It is not a laughing matter. Justice is the business of the law. Judges who refuse to subscribe to this have no reason to hang in there and pollute the system and put our freedom and liberty at risk. When justice is wanting because judges choose to do a hatchet job, they do worse than desecrate the temple of justice. They ridicule the judiciary and erect a roadblock against the seekers of justice, not only in election cases but in all cases.
It is said that the ignorance of the law does not excuse its breach. We don’t expect judges to be ignorant of the law. When they show such crass evidence of ignorance of the law, there is reason to believe that some extra-judicial influence must have caused them to bend the arc of justice to an external influence.
The damage caused by wilful or incompetent judicial decisions have wide and deep repercussions. In this case, the Appeal Court panel has destroyed the political ambitions of a senator and 16 state legislators with their mischievous interpretation of the facts in dispute.
More importantly, it has raised issues once again about the current wisdom of empowering judges to be the superior electors in our jaga-jaga democracy. When protests greet judgments in election cases, as in Nasarawa State, know ye that the courts have gone against the expressed will of the people. Whatever the legal technicalities may say, the people know who they chose and who they rejected at the polls.
Justice Inyang Okoro, who chaired the Supreme Court panel, spoke to our collective worries when he said: “My only worry is that a lot of people have suffered as a result of the Court of Appeal’s decision.” The senator and the 16 legislators have suffered. They have no remedy. Justice has not been served.
The losers are in, and the winners are out. Tragic. A lot of people will continue to suffer this way as long as the ballot paper is subordinated to the judicial votes.
