On Wamakko’s eligibility and other matters
What is regrettable is the insinuation that judges have been compromised. Fortunately, the Body of Benchers has beamed its searchlight and we shall encourage it to take severest punishment against such persons, especially lawyers. It is against this background that issues arising from the judgment of the Appeal Tribunal in respect of the Sokoto gubernatorial […]
What is regrettable is the insinuation that judges have been compromised. Fortunately, the Body of Benchers has beamed its searchlight and we shall encourage it to take severest punishment against such persons, especially lawyers. It is against this background that issues arising from the judgment of the Appeal Tribunal in respect of the Sokoto gubernatorial election need to be discussed in their proper context. The basic issue that elicited so much reaction including physical violence in Sokoto on Sunday, April 13th 2008, is whether or not the PDP flag bearer, Alhaji Aliyu Magatakarda Wamakko, is eligible and entitled to contest the fresh election.
The opposition parties, in particular the DPP and the ANPP, had individually taken full page advertisements in some national dailies to argue that Wamakko is not qualified to participate in the fresh election.
On the other hand, the PDP as well as INEC have maintained that the judgment of the Appeal Tribunal is very clear and that those people who contested the election on April 14th 2007 and whose names appeared on Exhibit R8 are eligible to contest the fresh election. Wamakko, being one of those whose name appeared on the said Exhibit is therefore eligible to contest.
Varying degree of sentiments have been expressed on the matter. But as a lawyer, one has to rise above these sentiments to appraise the position of the law on the controversy. The controversy boils down to the correct interpretation to be given to the judgment of the Appeal Tribunal and, in particular, to the Enrolment Order of the Court. Fortunately the confusion as to what Order was issued by the Court has now been laid to rest with the Court’s clarification which essentially reproduced the Orders contained on pages 67-68 of the Judgment as the Enrolment Order of the Court. In any case, the controversy on the Enrolment Order was needless, since the position of the law is very clear. The Supreme Court in the case of Akinyemi v Soyanwo (2006) 9 MJSC 149 stated that whenever an Enrolment Order is at variance with the Orders in a Judgment, the actual Orders in the Judgment are to supersede and prevail. The opposition parties should have ignored the Enrolment Order if they believed that it was materially at variance with the Orders contained in the Judgment of the Court. After all, they have the certified true copy of the Judgment.
At the outset it must be noted that it is elementary law that where a statute or order is clear, the duty of the Court is to give the clear provisions literal or ordinary interpretation. See the case of Nnonye v Anyichie (2005) 3 MJSC 1. It would not be allowed of anybody to introduce words that are not part of that order or statute. Tobi JSC in Macaulay v Raiffeisen (2004) 2 MJSC 159 observed that while Counsel may look out for favourable interpretation, the Court will stick to the plain words of the statute and interpret it to indicate the clear intention of the maker. In the same vein, each independent section of a statute or order must be construed separately. See the lead judgment delivered by Kalgo JSC in Macaulay’s case.
On a careful analysis, the following scenarios and realities can be extracted from the Orders: that the 14/4/07 election was annulled; that there were substantial irregularities in the 14/4/07 election; that Wamakko was not qualified to contest the 14/4/07 election as at that date; that there shall be fresh election; that same parties on Exhibit R8 shall participate in the fresh election and that same candidates on Exhibit R8 shall be the candidates for the fresh election. Conversely, the Order did not state that Wamakko shall not contest the fresh election. In the same vein, it closes the door against the other parties to participate in the fresh election in the same way as it prohibits any possible substitution of candidates with those in Exhibit R8. Any addition is extraneous to the Order.
Based on the Orders of the Court and the basic rule of interpretation as enunciated in the Supreme Court case of Nnonye v Anyichie (2005) 3 MJSC 1, Wamakko is very well eligible to contest the fresh election. This position is not only logical and consistent with international jurisprudence, but is backed by many Nigerian judicial pronouncements, which for clarity I shall explain. First and as stated earlier, in the interpretation of a statute or order or judgment of the court, the words used shall be given their ordinary meaning. The analysis above has shown that the Orders are clear and unambiguous.
Secondly, to take the position that Wamakko is not eligible to contest the fresh election is to unwittingly take away his fundamental right to contest an election which is guaranteed by the Constitution. It is settled law that penal orders or statutes are to be construed strictly to the benefit of a citizen and that where there is a reasonable construction that avoids restriction to a person’s right, the court must adopt that construction. In the case of Navy v Lambert (2007) 11 MJSC 1, the Supreme Court said that in the interpretation of statutes or orders which restrict the citizens rights, any doubt, gap, duplicity or ambiguity as to the meaning of words used in the enactment or judgment should be resolved in favour of the person who would be liable to the penalty or a deprivation of his right.
Thirdly, the point on his eligibility to contest the fresh election has not been raised and argued in the course of proceedings. Was he given the opportunity to state the reasons on why he or his party thinks that he is eligible to contest the fresh election? If the Court was to so ruled, is his right to fair hearing not breached? It is trite law that a judgment must be based on and confined to the issues joined by the parties in their pleadings. See the case of Ogunyade v Oshunkeye (2007) 12 MJSC 157 where the Supreme Court said that a judgment unrelated to the issues joined by the parties cannot be sustained. Therefore even if the Order is to be interpreted as the DPP want us to do, can it stand in the face of Wamakko’s right to fair hearing.
In the case of Ndukauba v Kolomo (2005) 2 MJSC 1, the Court said the denial of fair hearing to a party is often fatal to the judgment of the Court and that that judgment must be set aside even if it is delivered by the Supreme Court. The wisdom of the Appeal Tribunal in not ordering for the disqualification of Wamakko is to save its judgment and make it effective having found that there was irregularity in the 14/4/07 election. Otherwise, it would open a window for Wamakko’s lawyers to move for the setting aside of the entire judgment, the consequence of which is that Wamakko would continue in his position as the Governor of Sokoto State. I am not sure whether that is what the DPP and ANPP wanted.
Mohammed wrote in from Wuse 11, Abuja.