COMMENTS: Fayemi’s Final Triumph (1)

June 13, 2013

Ekiti State Governor, Dr Kayode Fayemi, acknowledging cheers from the mammoth crowd of Party members and residents of the State, on the Supreme Court victory, in Ado-Ekiti.

There is a joke in legal circle that where an unsuccessful appellant at the Supreme Court of Nigeria remains dissatisfied with the decision of the apex court, he can only take his case to the “court beyond” presided over by the Almighty Himself. This common joke is in reference to the finality of appeals at the Supreme Court level. However, one ‘itinerant’ appellant found out on Friday, May 31, that even the Supreme Court was out of his reach when the apex court dismissed his appeal.

Segun Oni, ousted governor of Ekiti State, had approached the Supreme Court to appeal the decision of the Court of Appeal sitting in Ilorin delivered on October 15, 2010, which nullified his election and on which basis he was sacked from office, and Kayode Fayemi, the candidate of the Action Congress of Nigeria, ACN, was sworn into office. That decision of the Court of Appeal went on to generate a lot of controversy that led to the investigation by the National Judicial Council (NJC) of the panel of the Court of Appeal that sat on the matter and the suspension of the then President of the Court, Justice Ayo Salami.

In the appeal he filed at the Supreme Court, Oni, through his counsel, Joe Gadzama, SAN, had urged the court to set aside the October 15, 2010 judgment of the Court of Appeal on the grounds of alleged likelihood of bias on the part of the panel of the Court of Appeal. Gadzama had argued that the suspended President of the Court of Appeal, Justice Ayo Salami, who constituted and presided over the panel and also wrote the lead judgment that sacked Oni from office, had a close affinity with Bola Ahmed Tinubu, the leader of Fayemi’s party, ACN. Gadzama cited section 36 (1) of the Constitution, which guarantees fair hearing of every party to a suit in a Nigerian court. He added that bias or likelihood of it makes a decision a nullity and is therefore a sufficient ground for the lower court to set aside its own judgment.

Fayemi, who was joined with his party, ACN, the Independent National Electoral Commission (INEC) and three of its Resident Electoral Officers as the first to sixth respondents, filed a notice of preliminary objection along with the other respondents where their lawyers countered the submission of Oni’s legal team and contended that as at the time the governorship election was conducted in 2007, the Court of Appeal was the final court empowered to determine governorship election matters. Fayemi’s team relied on the provisions of section 246 (3) of the Constitution and urged the court to decline the invitation to meddle into an appeal that had been successfully concluded. They argued that by that provision, the apex court lacked the jurisdiction to entertain an appeal that emanated from a governorship election that was held in 2007.

In a unanimous decision, the seven-man panel of justices of the Supreme Court led by Justice Mohammed Tanko struck out Oni’s appeal and held that the apex court had no jurisdiction to hear the appeal on the grounds that the matter emanated from a decision of the Court of Appeal arising from the 2007 governorship election to which section 246 (3) of the 1999 Constitution was applicable. The court reiterated the submissions of Fayemi’s lawyers and said that by the provisions of section 246 (3) of the 1999 Constitution, the Court of Appeal has the final decision on gubernatorial election petitions as at the time the appellate court sacked Oni from office.

The decision of the Supreme Court to uphold the preliminary objection of the respondents has put an end to the protracted legal tussle between Fayemi and Oni since the elections in 2007. Fayemi had, after the 2007 governorship elections in Ekiti State on April 14, gone to the Governorship and National Assembly/ Legislative Houses Election Tribunal to challenge the declaration of Oni by INEC as the validly elected governor of the state.

The tribunal, in its decision delivered on November 28, 2008, dismissed his petition.

Not satisfied with the decision, he approached the Court of Appeal, Ilorin, which, prior to the amendment of the constitution, was the last court in governorship elections. The Court of Appeal, on February 2, 2009, delivered its judgement and allowed the appeal in part and ordered a supplementary election in 63 wards, leaving the result in six wards intact and to be added to the result of the supplementary election in the 63 wards affected.

On May 5, 2009, both Oni and Fayemi contested the election with the candidates of other 11 political parties. When the result of the supplementary election was added to the result of the six uncontested wards, the first appellant (Oni) was declared the winner with 111,140 votes against the first respondent’s (Fayemi) 107,017 votes. Still not satisfied, Fayemi challenged the result of the election. In its majority decision rendered on May 5, 2010, the tribunal annulled the result of the supplementary election in some wards but dismissed the petition.

Fayemi appealed to the Court of Appeal, Ilorin against the majority decision of the tribunal and by its judgement delivered on October 15, 2010, the court allowed the appeal and set aside the majority decision and affirmed the minority decision which pronounced Fayemi the duly elected Governor of Ekiti State. From then on, Oni has been going from one court to another.

There are certain points to this Supreme Court decision, which must be pointed out. First, contrary to some reports in the media, the Supreme Court did not “uphold” the decision of the Court of Appeal so to speak or decide the matter on the merits in favour of any of the parties. The apex court merely withdrew itself from hearing the appeal at all on the basis that it had no jurisdiction to hear it. Another point that must be pointed out is that the 1999 Constitution has since been amended and the final appeals from gubernatorial election petitions now ends at the Supreme Court.

The crux of the Supreme Court’s decision is that at the time of the election, the amendment had not been made, and it would not be applied retrogressively. Oni’s lawyers tried to distance the issues on appeal from the 2007 election and focussed on the issue of fair hearing accorded to every citizen by section 36 of the Constitution. However, Justice Nwali Sylvester Ngwuta, in the lead judgment, noted that “the appellants’ entire case, when stripped of its extravagant build-ups and reduced to its proper frame, is simply an invitation to rely on Section 36(1) of the 1999 Constitution to strip the ruling of the Court of Appeal of the finality granted to it by Section 246(3) of the same Constitution.”

As expected, reactions have followed the decision of the Supreme Court, with Fayemi himself calling for the establishment of an electoral offences commission to punish electoral offenders and deter people who not only manipulate the electoral process but file frivolous applications to clog the judicial process. Femi Falana, the renowned activist who was part of Fayemi’s team, also took a jab at Oni’s lawyers by saying that their moral laxity had led to their encouragement of an appeal when they knew the law could not support it.

In the end, does one hail the judiciary which is not free of controversy for a ‘well-considered decision’ when in the past we have had judgements that seem to run against the tide of reason and justice? The law has been so mangled in the past to accommodate predetermined outcomes at all levels of court that one can only hope that this decision, sound as it appears, is the product of genuine legal considerations and not influenced by other unseen factors as has happened so many times before. Hopefully, Nigerians will get to the point where second guessing the justice of every case will be unnecessary.


By Dele Agekameh

This article was published in The Nations

Last modified: June 13, 2013

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