By Oliver Azi

Yesterday, the Supreme Court of Nigeria gave a judgment declaring the Senate President as the “lawful” candidate of the APC Senatorial race in Yobe North. It hinged its judgment on the fact that the Respondent—Bashir Machina—did not commence his case at the Federal High Court with the proper mode of commencing such action.

WHAT ARE THE MODES OF STARTING A LEGAL CIVIL CASE?

Not all means of transportation are used for any journey, you cannot go to America with a car, instead, flight. So, under Nigerian law there are different ways to start a legal journey. This ways of commencing an action can be like “the means of transportation” to start a legal journey in court. There are four ways to do this.

1. Writ of Summons
2. Originating Summons
3. Originating Motions
4. Petitions

According to the Supreme Court, Machina started his legal action with an “originating summons” as against a “writ of summons” at the Federal High Court.

The difference is that, a “writ of summons” is used for contentious cases; while an “originating summons” is used for issues that requires the court to interpret the section of a law when it is not clear or being argued.

TECHNICAL JUSTICE

By standing on this argument to give justice to Ahmad Lawan, the Supreme Court led by Justice Centus Nweze has used what is called “technical or procedural justice”. This way, the fact of the case is not considered at first whilst the procedure upon which the case is done is giving attention. This argument favored Ahmad Lawan.

SUBSTANTIVE JUSTICE

There were two justices who gave a dissenting or opposing judgment. Justice Adamu Jauro and Justice Emmanuel Agim; both men chose to lean on the arguments that Ahmad Lawan was not duly elected as APC Flagbearer under the provision of the Electoral Act and because of this, he was unqualified. This argument favored Bashir Machina.

Why?

Machina, at a primary election organized by the party in May 2022 won unopposed. The senate president did not participate in the primary election. APC claimed it conducted another election.

Lawan emerged as the candidate of the second primary election held by the APC which was in breach of Section 84 (5) of the Electoral Act as APC never cancelled the election that held on 28 May before organizing another. And so, INEC did not monitor the primary election that produced Ahmad Lawan as its flagbearer.

THE TEST OF DEMOCRACY

The Supreme Court also operates like a democratic election. In this case, three justices as against the other two had supported the technical justice argument. And so, since majority-carry-the-votes, so did the final judgment of the Supreme Court play out. This was unlike the Federal High Court and the Court of Appeal that leaned on the substantive justice argument.

In conclusion,

“Good law, in my opinion must have a human face; good law should not patronize technicalities that will give rise or room to undeserved victories in litigation. Good law should discourage technicalities … good law will not encourage a situation where a party in litigation will only return home with pyrrhic victory which in reality is no victory at all”

Those were the words of Hon. Justice Okoro JCA in the case of BALOGUN V. E. O. C. B (NIG.) LTD (2007) 5 NWLR (1028) 584

“Justice does not reside in the form of the processes of the court. Where there are sufficient provisions in the Rules of the court to sustain an action, the rules of natural justice demand that parties should be heard with a view to resolving their dispute once and for all. It is in the interest of justice that parties are not shut out prematurely from being heard in accordance with the laid down procedures in the court’s Rules”

Those were the words of the Supreme Court in BONIFACE EBERE OKEZIE & 3 ORS. V. CENTRAL BANK OF NIGERIA & 5 ORS. (2020) 15 NWLR (PT.1747) 181.

Oliver Azi
University of Jos