Judicial interference in resolving electoral disputes generates detrimental consequences for democracy and electoral legitimacy, undermining the Judiciary’s role, endangering democratic governance, and suppressing popular sovereignty as the basis of legitimate government. To address this issue, there is an urgent need to recalibrate the Judiciary’s role in election oversight, confining its mission to enforcing electoral rules rather than assuming the role of election administrators or arbitrating electoral outcomes. The ongoing democratic recession in Africa particularly in Nigeria presents an opportunity to re-evaluate the Judiciary’s function in the democratic process, emphasizing remedies that restore power to the electorate. For instance, when the Supreme Court of Kenya invalidated the 2017 presidential election, it ordered the electoral management body (EMB) to conduct a fresh election in full compliance with constitutional and electoral laws—a decision echoed by Malawi’s Supreme Court in 2020, which upheld the annulment of the 2019 presidential election. While Kenya’s re-run reaffirmed the original result, Malawi’s overturned the incumbent. These examples underscore the importance of judicial remedies that empower citizens rather than undermining their democratic rights. Ultimately, jurisprudence that subverts the people’s will jeopardizes both democracy and the Judiciary’s credibility, a peril that must be avoided at all costs. It would bode Nigeria positive results if the Judiciary were to emulate such strength in adjudicating electoral cases.
Election petitions are classified as sui generis, a Latin term signifying ‘of its own kind’. While some contend that they are distinct from both ordinary civil and criminal proceedings, numerous judicial decisions have established that election petitions constitute a unique category of civil proceedings. In Orubu v NEC, (1988) 5 N.W.L.R. Part 94 Page 323, Uwais JSC (as he then was) noted that ‘an election petition is not identical to ordinary civil proceedings; it is a specialized proceeding, owing to the distinctive nature of elections…’. In Buhari v Yusuf (2003) 14 N.W.L.R. Part 841 Page 446 at 536 per Tobi JSC, the Supreme Court affirmed that election petitions bear no resemblance to any action recognized by common law.
Procedural technicality represents a significant impediment to the effective administration of justice in Nigeria. Procedural laws outline the specific steps required to judicially enforce rights or duties, as distinct from substantive laws, which define these rights and duties themselves. Consequently, the dismissal of a case due to a party’s failure to adhere to a particular procedural step constitutes a manifestation of procedural formalism.Conversely, substantial justice embodies the fair administration of justice according to the principles of substantive law, irrespective of procedural errors that do not impact the litigant’s substantive rights. In essence, substantial justice prioritizes a fair trial on the merits of the case and therefore should be prioritised.
It is evident from these definitions that decisions based on procedural errors, rather than the substantive merits of a case, exemplify procedural formalism. The Supreme Court of Nigeria has consistently advocated for the primacy of substantial justice over procedural formalism, although their stance tend to be fickle especicilly in electoral matters. The Court has emphasized that rigid adherence to technicalities is no longer tenable and that a shift towards prioritizing substantial justice between parties is necessary. This stance has been reinforced by numerous appellate court judgments in Nigeria and other African nations; Such as in a 2012 address to the Tanzanian Bar, the former Chief Justice of Tanzania highlighted the challenges posed by procedural technicalities to the administration of justice. He emphasized the importance of dispensing justice without undue procedural constraints and called for the elimination of “antiquated, time-consuming, and redundant procedures.” They serve no purpose. Substantive justice must be rendered without unwarranted or excessive procedures. Not every procedural requirement is essential or goes to the root of the cause or matter…” The Chief Justice underscored the need to prioritize substantive justice and to avoid excessive procedural requirements that do not contribute to the core issues of a case.
To expantiate, in HDP v. INEC [3-4 SC, 106 the appellant filed a presidential election petition before the Court of Appeal, incorrectly describing the Independent National Electoral Commission (INEC) as the “Independent Electoral Commission.” The respondents filed a preliminary objection, arguing that the incorrect description rendered the petition incompetent. The Court of Appeal upheld this objection, dismissing the petition on technical grounds.On appeal to the Supreme Court, the Court reversed the decision of the Court of Appeal. In his leading judgment, Hon. Justice Onnoghen, JSC (as he then was), emphasized that the Appellant’s clear intention was to sue INEC, and the use of the acronym “INEC” unequivocally identified the intended defendant.
The Court recognized that election petitions, though sui generis, are crucial for safeguarding the political rights of citizens and should be approached with a degree of flexibility to accommodate minor procedural errors. Ogbuagu, JSC, concurred, criticizing the Court of Appeal for its overly legalistic approach and its haste to dismiss the petition on technical grounds. He underscored the importance of prioritizing substantial justice over technicalities, a principle that has been repeatedly affirmed by the Supreme Court.This case demonstrates the Supreme Court’s commitment to upholding substantial justice and avoiding the pitfalls of excessive procedural formalism. By reversing the decision of the Court of Appeal, the Supreme Court ensured that the appellant’s substantive rights were protected and that their grievance could be heard on the merits. Other cases in which the apex court allowed substantive justice to override technicalities include Nosiru Bello V. AG Oyo State (1986) 5 NWLR Pt. 45 Pg. 828; Eze v. FRN (2017) 15 NWLR (PT 1589) 433; Dapianlong v. Dariye (2008) 8 NWLR (Pt 1036) 332, etc.
Triumph of technicalities over substantial justice
However, the Judiciary, including the Supreme Court, has repeatedly failed to uphold this principle in numerous cases. As emphasized in the case of Ajadi v Ajibola (2004)16 NWLR Pt. 898 p. 91 at 172, the focus should be on whether a procedural irregularity has had a material impact on the outcome of the case or led to a miscarriage of justice.
This case underscores the potential for procedural technicalities to overshadow substantive justice, thereby undermining the democratic process. Senator Abaribe, during the Senate hearing on the confirmation of the Chief Justice designate, posed a question regarding the Supreme Court’s decision to the then Chief Justice of Nigeria, Hon. Justice Tanko Muhammed, to which he responded that the decision is grounded in Section 36 of the Constitution, which safeguards the fundamental right to a fair hearing. He furhter adduced that a crucial aspect of this right is the tribunal’s ability to directly observe witness demeanor. This capacity enables the tribunal to assess credibility, discern nuances in testimony, and comprehend the broader evidentiary context. As highlighted in Woluchem v Gudi (1981) CLR 5(B) (SC), the trial judge’s firsthand observation of witnesses is pivotal in evaluating their testimony and forming informed conclusions. Depriving the tribunal of this opportunity in some appellate decisions undermines the principles of fair hearing and due process, potentially leading to unjust outcomes. The Supreme Court had held in Akeredolu V Abraham & Ors (2018) LPELR- 44067 (SC) that “Technicality in the administration of justice shuts out Justice. A man denied justice on any ground, much less a technical ground, grudges the administration of justice, it is therefore better to have a case heard and determined on merit than to leave the Court with a shield of ‘victory’ obtained on mere technicalities.”.
When the deux ex machina was supressed in machina’s case
The gensis of this conondrum emanated from Senator Ahmad Lawan contest for the highest office in the nation, the Presidency. To facilitate this endeavor, he procured the necessary nomination and expression of interest forms. Consequently, his continued occupancy of the senatorial seat became untenable. This strategic move presented an opportunity for Bashir Machina, who aspired to assume Lawan’s vacated position. On May 28, 2022, a primary election was conducted, resulting in Machina’s victory. Eleven days later, on June 8, 2022, the All Progressives Congress (APC) held its National Convention, culminating in the presidential primary election. Lawan, along with twelve other contenders, was unsuccessful in securing the party’s nomination, with Bola Tinubu emerging as the victor. Unbeknownst to the general public, the Senate President had a contingency plan. In executing this plan, the APC contended that Danjuma Manga, the party official who chaired and oversaw the May 28 primary election, lacked the requisite authorization from the party’s National Working Committee (NWC). Consequently, the primary election was annulled. A subsequent election was held on June 9, 2022, less than twenty-four hours after Lawan’s defeat in the presidential bid. The irregularities and questionable nature of these events are evident.
Machina, aggrieved by this apparent injustice, sought legal recourse by filing a suit at the Federal High Court of Nigeria, Damaturu Division. He petitioned the court to declare the May 28 primary election, which produced him as the candidate, as the sole legitimate and valid primary election, while nullifying the subsequent election that favored Lawan. This legal challenge ignited a complex and contentious situation. The judgment was a closely divided decision, with a majority of three justices (Hon. Justices Nweze, Hon. Justices Ogunwumiju, and Hon. Justices Garba) reaching a different conclusion than the dissenting minority of two justices (Hon. Justices Agim and Hon. Justice Jauro).
The Lead Judgment, surprisingly delivered by late Hon. Justice Nweze, JSC (who has critiqued his own Supreme Court in the Uzodinma v. Ihedioha appeal, centered on a singular, discernible ratio: “Whether, in the circumstances of the appeal before the court below, specially with the allegation of fraud in the midst of other irreconcilable conflicts in the numerous affidavits, further affidavits filed by the parties in support of their various conflicting positions, the court below was correct to hold that the trial court was right to have adjudicated the first respondent’s case on the first respondent’s originating summons.” (APC v. Machina SC/CV/1689/2022).
His Lordship embarked on an exposition of the evolution of Originating Summons and the appropriate circumstances for its use—as opposed to a Writ of Summons, which is more suitable for resolving legal questions when the facts are undisputed. His Lordship then opined that, “Where the issues of facts are contentious and border on the copious allegations of fraudulent practices as in the first respondent’s suit, it calls for caution on the part of the court from rushing to determine such a claim on affidavit evidence alone in an Originating Summons, as such a case is, in my view, one more suited and proper for determination on the pleadings and evidence of the parties under the procedure by way of a Writ of Summons.” Subsequently, His Lordship outlined specific paragraphs from the applicant’s supporting affidavit at the trial court, which, in His Lordship’s opinion, accused the appellant of “fraudulent practices.”
He then referenced the provisions of Order 3 Rule 2(b) of the Federal High Court (Civil Procedure) Rules 2019, which stipulate that suits based on allegations of fraud cannot be initiated via Originating Summons. For this reason, His Lordship concluded that the trial court “wrongfully purported to determine the suit.” However, a closer examination of the aforementioned paragraphs within the applicant’s affidavit reveals that the depositions therein do not in any way contain any fraudulent content or explicit allegations of fraud. These depositions, with respect, do not possess such a character. Consequently, one cannot help but question His Lordship’s characterization of the applicant’s adoption of an Originating Summons as “a sacrilegious affront”
credit:The Sun