A former Attorney-General of Oyo State, Michael Lana, speaks with DARE ADEKANMBI on the Court of Appeal judgment, saying there is no ambiguity in the judgment as claimed in many circles and that the Supreme Court will determine what the Court of Appeal has pushed to it.
Although I have not seen the full judgment, I have read the enrolment order therefrom. Confusion appears to have trailed the judgment. What is your take about the decision of the Appeal Court Justices?
I have seen and read the full judgment. The major take on it is about what order the Court of Appeal should make, having found out that the judgment of the tribunal was perverse. Normally, in all situations, when the Court of Appeal says the judgment of a lower court is perverse, it must set it aside, which was done in the case we are talking about. The question now is: what consequential order was made? What the Court of Appeal is saying now is that when the Court of Appeals was the final court in this situation, especially in the case of Fayemi versus Oni, once there is non-compliance with the guideline and regulations made by INEC, it is equivalent with non-compliance with the Electoral Act. Therefore, the order that should be made is to nullify the election and order a rerun. That was the practice before the Supreme Court was given the jurisdiction to be the final court in governorship election petition, the Apex court, according to the Court of Appeal, has now said that non-compliance with guidelines is not enough to nullify an election. The Appeal Court is also saying that until the Supreme Court revisits the issue, they have no power to overrule the Supreme Court. Based on that, they only have to set aside the judgment of the lower court without granting any order. They did not refuse the prayers asked for by the appellants, but they did not grant same.
In one of the orders enrolled from the judgment, the Justices of the Appellate Court said the reliefs sought by the appellants could not be granted because that is not the current position of law and that their further evaluation of the evidence led also made the granting of such reliefs impossible.
If you read the full judgment, you will see that it is the registrar of the court that did not really couch that place very well. You know the registrar that prepared the enrolment of order is not a judge.
But Justice M.A Danjuma’s signature was on it, which means he read it before signing the document.
Yes, he probably did. What the Justices said was that they have reviewed the evidence, but in view of the new status of the law now, that is, the Supreme Court judgment referred to, they can’t nullify the election. That is, they could have nullified it on their review of the evidence led by the appellants. Previously, the Court of Appeal had held that non-compliance with election guidelines is equivalent to non-compliance with the Electoral Act. But the Supreme Court held in latter cases that this should not be so because non-compliance with the guidelines is different from non-compliance with the Electoral Act. So, the Appeal Court can’t nullify the election if the complaints border on non-compliance with election guidelines.
In actual fact, that is not what the Supreme Court said in any of those cases, especially Ikpeazu versus Otti referred to. I was involved in that case. What the Apex court actually said was that if election guidelines contradict the Electoral Act, the guidelines become irrelevant.
Do you think the Appeal Court did a good job in its decision on the matter?
I think the Appeal Court did.
But they left the judgment hanging
No, they did not leave it hanging. It is the false rumour that made it look like it is hanging. What they have said is that they have found in the appellants’ favour that there was an infringement of their fundamental human rights. So, based on that, they set aside the judgment of the tribunal which was against them. The next thing would have been to nullify the election and order a rerun. But the Supreme Court has said they can’t do that anymore. So, the Appeal Court is saying unless the appellants take the matter to the Supreme Court, they can’t do it. They even stated it in the judgment that unless the Supreme Court revisits the matter. They can’t review the judgment of the Supreme Court, so they have thrown it back to the Apex court. It is like saying our hands are tied. Only the Supreme Court can overrule itself. The judgment given by the Court of Appeal is only asking the two parties to go to the Supreme Court.
What do you see the Supreme Court doing with the case?
It depends on the arguments put forward by the Supreme Court, which has always said that they can depart from their previous decisions. But the parties before the court have to convince them why they should depart from their previous position. If you remember the case of Inakoju versus Adeleke [Ladoja’s impeachment case], the Supreme Court gave a judgment [restoring Ladoja as Oyo State governor]. But in latter cases, the court reversed itself. So, the battle for Oyo governorship is not before the Supreme Court. The appellants will try to convince the Supreme Court that the Court of Appeal was wrong in its decision and that the Apex court should correct itself in this case. The respondents will also try to convince the Supreme Court. What the Supreme Court will now do, nobody can say. It depends on the arguments put forward by both parties.
Tribunals usually accuse petitioners of dumping evidence on them without the petitioners demonstrating same. What did the Appeal Court say on this in the judgment?
The Appeal Court said in the judgment that it used to be the law that petitioners have to demonstrate their evidence. They now said the Supreme Court, in a 2019 judgment, a little bit veered away from that strict rule. They are now saying, once you have frontloaded your evidence, you have demonstrated it because the documents are already referred to in the petitioners’ statement on oath. So, what kind of demonstration does the tribunal want again? That is what the Appeal Court is saying. Whether the Appeal Court is right or wrong is for the Supreme Court to decide. The rule applied when the issue of frontloading had not started.