This treatise is intended as a legal analysis of the stay of proceedings issued by CJN Katsina-Alu/Supreme Court on the matter of the ‘second’ Sokoto governorship election petition (Dingyadi vs. Wamakko) still lying before the Court of Appeals. The Supreme Court waded into the case because, just about when the case became ripe for final decision, Wamakko raised a constitutional issue under
Sections 295 and 36 of the Constitution in addition to the weighty allegations of partiality he brought before the National Judicial Council (NJC) against the President of the Court of Appeals (Justice Salami) and five other Justices. The Supreme Court action has ignited a cesspool of controversy, pitting lawyers against lawyers; and most worryingly, CJN Katsina-Alu against PCA Salami.
Now, you may ask: How did this case come to this pass? Well, the case has come two full cycles from when it first began in 2007 with Dingyadi’s ‘first’ challenge of Wamakko’s electoral victory in court; and ultimately succeeded in getting the election annulled on his pleadings that the election was marred by irregularities and that Wamakko was unqualified to contest. However, the court also ordered that Wamakko was eligible to contest in the re-run election. The re-run came and Wamakko prevailed (again). But it riled Dingyadi that the same Wamakko that was ruled unqualified for the 2007 election was also, by the same judgment, permitted leave to be a candidate in the re-run election. So, rightly or wrongly, Dingyadi proceeded to the High Court to test the efficacy of the judgment.
So, in effect, and as was revealed by the particulars of his pleadings, Dingyadi was asking the High Court to amend, reverse, vary (or interpret) the judgement of a higher court – the Court of Appeals – by striking out Wamakko’s name as a candidate in the rerun. Thus, by its very nature, it is not in dispute that Dingyadi’s High Court action raised myriad ‘questions as to the interpretation or application of the Nigerian Constitution’, as it bears on the important question of jurisdiction and hierarchy of Federal Courts. You might also add other ‘questions of law’, such as the principle of ‘res judicata’ (simply put: the matter is closed); ‘collateral estoppel or issue preclusion’ (we have decided this issue before or another court has); and the ‘doctrine of finality’. Expectedly, therefore, for one or more of these reasons, the High Court declined jurisdiction (or dismissed Dingyadi’s pleadings as lacking merit). Whereupon, Dingyadi proceeded to the Court of Appeals, thereby raising another ‘question as to the interpretation or application of the Constitution; and that is: Whether a Court of Appeal of coordinate jurisdiction (the Sokoto Division) breached the Constitution by admitting and proceeding apace with judgment on a case that contained issues finally and previously resolved by another (and sister) Court of Appeal (the Kaduna Division)?
With these rapid-fire developments in view, something had to give and it did, just recently. Something had to give because, in the first place, Dingyadi (and the Sokoto Division of the Court of Appeal), have, by the many “question(s) of interpretation and application of the Constitution” lying before the court, opened the door to a possible trigger of special Supreme Court proceedings under Section 295 (3) of the Nigerian Constitution. And because, from the many of his objections overruled by the Court of Appeals and more, Wamakko now formed credible grounds to suspect partiality; plus, he tagged along a serious claim, under Section 36 of the Constitution, that a breach of his fundamental rights to fair hearing was afoot. You can’t beat all these combinations. Rather, you have to address them. And that was precisely what CJN Katsina-Alu was trying to do.
We all know that a litigant takes one or two actions when he suspects partiality or breach of his fundamental human rights. For one, the litigant may approach the administrative head of the court (in this case, Justice Salami, the President of the Court of Appeals or the one before him) to request recusal of the Justice(s) he suspects. This, Wamakko did but he was, again, overruled; and to make matters worse, the Court of Appeals announced a near date certain for rendering a final (and un-appealable) judgment. And hear this: there was potent (and credible rumours, if you will) that Wamakko, by the dint of the imminent judgment, will fall as Governor and Dingyadi will take his place, which, by all means, is a serious legal injury any reasonable Governor will take lawful steps to prevent by even going as far as asserting a claim un Section 36 of the Constitution. And because Wamakko felt frustrated by the Court of Appeals, he proceeded to take another action allowed a litigant under the Nigerian Constitution – he brought petition before the NJC against the President of Court of Appeals and the five Justices he suspects. That brought the integrity of the court into serious question. And that cannot be left hanging in any responsible society that cares about law and order (or rule of law). So, here again, someone in authority has to address those issues. That someone is CJN Katsina-Alu, acting under the colour of his ‘dual’ authority as Chief Justice and Chairman of the National Judicial Council (NJC).
At the meantime, Wamakko had moved the Court of Appeals under Section 295 of the Constitution to ‘refer the question(s) of interpretation and application of the Constitution’ to the Supreme Court. It was plausible that a summary reference on the considered motion of the court or prayers of Wamakko would have sufficiently addressed Wamakko’s concerns with partiality or integrity of the proceedings. Yet, in a very unwise and troubling move, the Court of Appeals denied Wamakko’s Section 295 motion, which thus set the stage for Wamakko to be within his rights to bring two separate actions before the Supreme Court. First, he can invoke and sustain Supreme Court ‘appellate’ jurisdiction to review the Court of Appeals denial of his Section 295 ‘request for a reference’. Under Section 295 (3), such a denial is an ‘opinion’ and thus immediately appealable to the Supreme Court. And second, Wamakko can invoke and sustain Supreme Court ‘original’ jurisdiction under Section 36 of the Constitution. Any two of these actions, once the Court of Appeals is on express (or even constructive) notice, will operate as automatic stay of further proceedings lying before it. Yet, on the hackneyed theory that it had ‘exclusive’ jurisdiction, the Court of Appeals ignored all these (plus the live NJC petition) and proceeded with the case; thus forcing CJN Katsina-Alu to spell things out by ordering a stay. The CJN is in order.
In contra, Dingyadi now argues (to the Court and the Nigerian public) that the Supreme Court/CJN erred by asserting jurisdiction over a ‘governorship election petition upon which the Constitution says it has no jurisdiction’. Facially, an objection raised against Supreme Court jurisdiction on grounds of this plain (and trite) constitutional provision of ‘exclusive jurisdiction’ would appear to have some merit. But as we will presently see, perhaps, the sole purpose of a Section 295 (and 36) proceeding is in direct opposite, and that is: Both Sections (or at least 295) are meant as an occasional and limited exception to the exclusive jurisdiction of the Court of Appeals as the final court for hearing certain cases, not just a governorship election petition. This is because Section 295 is both narrow and broad in its provisions (and application). Narrow, because once the Supreme Court addresses the ‘limited’ Section 295 issue raised, it sends the parent (or substantive) case back to the Court of Appeals. No usurpation there. So, Dingyadi and those holding brief for Justice Salami are dead wrong. On the other hand, Section 295 is broad because, once the conditions for its invocation are met; no case that lies before the Court of Appeals is excluded or saved, including a governorship election petition case, as in this instance.
By now, you might be wondering what this Section 295(3) is all about. So, let us see what it says, which goes like this: “Where any question as to the interpretation or application of this constitution arises in any proceedings in the Court of Appeal and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Supreme Court which shall give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate”.
Keep in mind that the process Wamakko filed under Section 295 before the Supreme Court is not a direct and absolute appeal of a ‘governorship election’ petition over which it is not in dispute that the Supreme Court has no jurisdiction; rather it is a single-issue, narrow appeal of Court of Appeals decision or opinion on a ‘question that borders on the interpretation of the constitution’, which immediately triggered Supreme Court jurisdiction regardless of any other constitutional provision purporting to the contrary. But in fairness to Dingyadi, it would appear (again) that simply because Supreme Court has no jurisdiction over governorship election petitions simpliciter, it also means (to him) that such ouster of jurisdiction is total and absolute to the point of leading Dingyadi, on the assumption that he was poised for victory, to argue that the Supreme Court has wrought him injustice by admitting Wamakko’s appeal. I will disagree, and here is why:
Section 233(2) says: “An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases – (a) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal; (b) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this constitution; and (c) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been; is being or is likely to be contravened in relation to any person”.
Now, if you rewind back to the wording of Section 295 reproduced above, you will agree that the Supreme Court is in order to assert limited appellate jurisdiction in this matter because the Court of Appeal’s denial of Wamakko’s Section 295 request is a ‘decision (or opinion) made in a civil proceeding on questions as to the interpretation or application of the constitution’. Additionally, Wamakko’s instant appeal ‘involves question of law alone’ under Section 233(2) (a), which, once it is disposed off, can no longer disturb the exclusive jurisdiction of the Court of Appeals to still determine the underlying governorship election petition. Recall that Section 295(3) requires the Supreme Court to “give its decision upon the question and give such directions to the Court of Appeal as it deems appropriate”.
Another pertinent fact to keep in mind, as we go along, is that Section 295 (like Section 233(2) (b) also began by saying that “Where any question as to the interpretation or application of this constitution arises in any proceedings in the Court of Appeal”. So, both Sections are in companion and in pari materia, employing the use of similar wordings throughout. Besides, they are clearly meant to be a limited constitutional exception to the exclusive jurisdiction of the Court of Appeals on governorship election petitions, provided the specific conditions enumerated therein are met. Upon due consideration, I dare say that, without more, Wamakko squarely met all those conditions. Thus, under the tenor of Section 233(2) (b) alone, and interlocutory appeal clearly lies to the Supreme Court on the narrow ‘question of law alone’ raised by Wamakko. Therefore, at this juncture, I will again resolve this issue in favor of CJN Katsina-Alu and urge Justice Salami to stand down and tarry awhile.
Additionally, and to the glory of Wamakko, under Section 233(2) (c) quoted above, the Supreme Court can assert a narrowly tailored original jurisdiction over an issue arising from a governorship election petition, provided that such issue involves a “question as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person”. Chapter IV includes Section 36 of the Constitution which protects the fundamental right to fair hearing. Wamakko has asserted that the refusal of the President of Court of Appeals to empanel another set of Justices, other than the five he petitioned against, and other setbacks he suffered before the Court of Appeals, have denied him his ‘fundamental right to fair hearing’ under Section 36 of the Constitution. Here again, an action to the Supreme Court lies. So, CJN Katsina-Alu is, yet again, in order.
And there is more. Section 295 (2) – the section just preceding 295 (3) at issue here allows the Court of Appeals a similar exceptional jurisdiction over matters upon which the Constitution also gave Federal High Courts exclusive jurisdiction. That section says that: “Where any question as to the interpretation or application of this constitution arises in any proceedings in the Federal High Court or a High Court, and the court is of opinion that the question involves a substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the Court of Appeal; and where any question is referred in pursuance of this subsection, the court shall give its decision upon the question and the court in which the question arose shall dispose of the case in accordance with that decision”. In case you don’t know, it is this very provision that leads to all those interlocutory appeals you hear litigants taking before the Court of Appeals while their case is still pending before the High Court. So, now you might ask: if Dingyadi (or the Court of Appeals – by proxy) now claims that Supreme Court erred by admitting a Section 295 (3) process from Wamakko, why was the same Court of Appeals, since the founding of ‘constitutional’ Nigeria, admitting similar processes from the High Court on cases that can also said to be within the exclusive jurisdiction of the High Court? I am sure you have heard lawyers say it before that you cannot approbate and reprobate at the same time.
Finally, under the Third Schedule to the Constitution, the Chief Justice, sitting as the constitutional Chairman of the National Judicial Council, has disciplinary powers over the President and Justices of the Court of Appeals. And this often arises when a litigant before them raises allegations of partiality or breach of other judicial code of ethics. The disciplinary control of the NJC over the Court of Appeals and its President includes the authority to receive and determine petitions against them and recommend their removal from office. Every reasonable person living in Nigeria knows that the President of Nigeria (including the military ones) hardly ignores the recommendations of the National Judicial Council as they bear on appointment, removal or discipline of Judges or Justices. Such President will do so to his political peril. So, the ‘recommendation’ as used here is, in practice, virtually mandatory. Another thing every reasonable Nigerian knows is that, though NJC has other members, its decisions are normally swayed by the force of character of its Chairman, just as is the case with all the organs enumerated in the Constitution. Part of the reason being what our law says, besides the conventions and the presidential regime we operate. CJN Katsina-Alu is a new Chief Justice looking to assert himself (and infuse discipline), like those before him, in the difficult and dicey task of administration of the Nigerian judiciary. Justice Salami is a member of the NJC; so that makes him familiar with what I am talking about here.
So, here we are, with a spate of petitions pending against the President and five Justices of a Court of Appeals, believed by a party-opponent (Wamakko) before them to have lost their impartiality, besides his grave consternation that a wanton breach of the Nigerian Constitution was afoot. What to do? Simple – put the Court of Appeals case on hold, hear the Sections 295 and 36 actions, dispose of the damning petitions, and bam: the case goes back to the Court of Appeals, which, if it ultimately renders a decision in favor of Dingyadi, heavens will not fall in the Caliphate because everyone would have been rest assured that the proceedings passed all the necessary ‘integrity tests’.
Aloy Ejimakor wrote in from email@example.com