The Supreme Court, Public Policy, And Justice: A Review Of The Supreme Court Decision In APC v. Bashir Sheriff & Ors.

By Emmanuel Bassey

Introduction

On 6th February 2023, the Supreme Court of Nigeria divided public and legal opinion after it delivered its judgment in the case of APC v. Bashir Sheriff & Ors.¹ The judgment came as a shock to many Nigerians who rightly or wrongly felt that the Supreme Court failed to do justice in the case, which many had expected the Supreme Court would decide differently.

In that case, the Supreme Court set aside the decision of the Court of Appeal, Gombe Division, affirming the decision of the Federal High Court, Damaturu, that Bashir Sheriff (not Ahmed Lawan whom the APC sort to present) was the validly nominated candidate for the All Progressives Congress (APC) in the Yobe North Senatorial District primary election.

The Supreme Court, in its lead judgment, without considering the case on its merits set aside the proceedings of the two lower courts and struck out the suit on the ground that the case was not suitable for trial by originating summons. The Court came to this conclusion because the Plaintiff/1st Respondent (“Bashir Sheriff”) had made allegations of fraudulent practices against the Appellant (“the APC”) in the affidavit in support of his originating summons, and there were irreconcilable conflicts in the parties’ affidavit at the trial court.

The decision generated some very critical debate and threw up many unanswered questions. Chief amongst the questions was whether the Supreme Court in relying on technicalities to strike out the case instead of deciding it on the merits really appreciated its historical standing as a policy-making court whose decisions should help to shape social order and deepen internal democratic ideals whilst entrenching respect for the rule of law in our body politic. This question becomes more germane given the allegations of outright violation of due process which the case threw up and the interest that it had generated among Nigerians.

This article sets out to interrogate the Supreme Court decision in APC v. Bashir Sheriff & Ors., to determine the reasoning behind the decision, the justice of the case and what impact the decision is likely to have on the society’s perception of judicial justice in particular and the society’s social order in general.

A Review of the decision in APC v. Bashir Sheriff & Ors.

The suit was commenced by Bashir Sheriff against the All Progressives Congress (APC), the 2nd Respondent (“Ahmed Lawan”) and the 3rd Respondent (“the Independent National Electoral Commission” (INEC)) at the Federal High Court, Damaturu by way of originating summons, as stipulated by Rule IV(1) of the Federal High Court (Pre-Election) Practice Directions 2022. Bashir Sheriff in that suit, among other things, asked the court to restrain the APC from removing his (Bashir Sheriff’s) name or recognizing the name of Ahmed Lawan as the candidate of the APC in the Yobe North Senatorial District election on the ground that he (Bashir Sheriff) was the validly nominated candidate of the APC for the Yobe North Senatorial District election.

The APC in response argued that the primary election that produced Mr. Sheriff was not a legitimate primary election of the party because the primary election which took place on 28th May 2022 was conducted by a certain “Planning Committee” instead of its National Working Committee, and in respect of a non-existent “Zone C” instead of Yobe North Senatorial District.

The APC stated that after it reviewed the said primary election of 28th May 2022 and discovered the legal issues surrounding it, it resolved to “reschedule” the primary election for Yobe North Senatorial District for 9th June 2022, and that it was at that primary election that Ahmed Lawan was elected as the party’s candidate for the Yobe North Senatorial District election. Thus, it was right to have presented the name of Ahmed Lawan to INEC as its candidate for the Yobe North Senatorial District.

Mr. Sheriff argued that Mr. Lawan did not take part in a valid primary election for the Yobe North Senatorial District under the APC since he was a candidate in the presidential primary election of the APC which took place on 7-8th June 2022, whilst the primary election that purportedly produced him as the candidate of the APC in the Yobe North Senatorial District election was allegedly conducted on the 9th of June 2022.

The case raised many critical questions regarding how Mr. Lawan emerged as the Yobe North Senatorial District candidate of the APC at a primary election, which purportedly took place on 9th June 2022 when he was as of 8th June 2022 still contesting the APC presidential primary election.

These questions include: Was INEC given the requisite 21 days’ notice of the primary election as required by Section 82(1) of the Electoral Act 2022 to enable INEC to monitor the election? Did the APC violate laid down procedures as contained in the Electoral Act, 2022 in nominating Mr. Lawan as its candidate for the Yobe North Senatorial District election to replace Mr. Sheriff who had earlier been nominated as the Party’s candidate?

These were questions that Nigerians were looking up to the Supreme Court to answer. Unfortunately, the Supreme Court dodged these questions and chose instead to strike out the case based on the technical ground that the suit was not fit for trial by originating summons since allegations of fraudulent practices were raised by the parties and the parties’ affidavits contained irreconcilable conflicts.²

The Supreme Court in nullifying the entire proceedings that led to the appeal significantly noted that it did so because there was a miscarriage of justice against APC when the two lower courts decided to adjudicate over matters which were not suitable for determination by originating summons. The Supreme Court did not, however, state exactly how the APC suffered a miscarriage of justice in the case.

Given the foregoing, the question that would agitate the mind of any objective observer in the circumstance is whether the Supreme Court in trying to avoid what it perceived to be a miscarriage of justice against the APC did not cause a miscarriage of justice against the other parties to the case.

Justice or Miscarriage of Justice?

Justice, they say is not a one-way traffic, but a three-way traffic – in this case, justice to the APC and Ahmed Lawan, justice to Bashir Sheriff and justice to the society. Whilst it is highly debatable whether the APC indeed suffered a miscarriage of justice when the two lower courts proceeded to determine the issues raised in the case on the merits despite the said allegations of fraud and irreconcilable conflicts in the parties’ affidavit.

It is without a doubt that Mr. Bashir Sheriff suffered a greater injustice when the Supreme Court decided to strike out his suit because he cannot go back to ventilate his grievances at the Federal High Court since pre-election matters are strictly time-bound by Section 285 (10) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That provision stipulates that the Court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.

Even if Mr. Sheriff were, for the sake of argument, able to refile his suit outside the constitutionally prescribed time frame, what other mode would he employ to refile the suit given that Rule IV(1) of the Federal High Court (Pre-Election) Practice Directions 2022 specifically states that pre-election matters must be commenced by originating summons? Interestingly, the Supreme Court did not make any comment on the propriety or otherwise of Rule IV(1) of the Federal High Court (Pre-Election) Practice Directions 2022. The Supreme Court practically left Mr. Sheriff without any remedy for his perceived grievances, making nonsense of the now clichéd Latin maxim ubi jus ibi remedium.³

Additionally, the Supreme Court missed an excellent opportunity to entrench the rule of law and internal democracy in political party politics and strengthen our obviously ailing democracy by making a definitive pronouncement on the need for political actors to follow due process of law. This reticence on the part of the Supreme Court will in the long run do more damage than good to our democracy because politicians once they suspect that they have a chance of getting away with all sorts of impunity and shenanigans will institutionalize lawlessness in the democratic and electoral processes and hope to come to court to place a judicial imprimatur on their acts of impunity by raising technical objections to frustrate the hearing of the case on its merits.

This sort of situation, if allowed to prevail, will further undermine the already waning public confidence in the judicial system because if the common man senses that the courts are more inclined to throw out his claim on technical grounds than decide it on its merits might feel that ‘might indeed is right’ and he is better off serving jungle justice than come to court to have injustice waved at him in the name of justice according to law.

Could the Supreme Court have acted differently?

There are precedents to support the view that the Supreme Court was not caught in a cul-de-sac where the only option open to it was to strike out the suit and thereby deny Mr. Sheriff of any pretention of a remedy in law by placing a judicial imprimatur on the candidacy of Mr. Ahmed Lawan. Based on the ordinary course of events and the requirements of the law Mr. Lawan could not have practicably participated in a valid primary election as the candidate of the APC for the Yobe North Senatorial District election.

The Supreme Court could have invoked Section 22 of the Supreme Court Act to order the parties to call oral evidence to determine the real issues in controversy in the case and avoid a miscarriage of justice to any of the parties. Section 22 of the Supreme provides that:

“The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal…. and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part….”

In Obi v. INEC & Ors,⁴ the Supreme Court held that the following conditions must be present in a case before Section 22 of the Supreme Court Act can be invoked:

“(1) the lower court or trial court must have the legal power to adjudicate in the matter before the appellate court can entertain it; (2) the real issue raised up by the claim of the appellant at the lower court or trial court must be seen to be capable of being distilled from the grounds of appeal; (3) all necessary materials must be available to the court for consideration; (4) the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and (5) the injustice or hardship that will follow if the case is remitted to the court below, must clearly manifest itself.”

The case of APC v. Bashir Sheriff & Ors., appears to have met all the requirements set out in the above case, but the Supreme Court preferred to toe the line of technical justice contrary to some of its more prominent pronouncements on what a court of law should do when faced with the option of either doing justice or deciding a case on technical grounds. See, FGN & Ors v. Zebra Energy Ltd,⁵ a case which threw up a similar question as to whether the suit was properly commenced by originating summons and the apex court per Belgore, JSC, stated as follows:

“Procedure is a guide to smoothen the passage of suit; to direct the parties what to do and to guide the Court to arrive at the justice of a case. The question of initiating the proceedings by Originating Summons was never a big issue at the trial Court; neither was it at the Court of Appeal and in this Court. This Court shall never be shackled by procedure; the case is not made for the procedure, it is the other way round. Once the procedure employed has brought into focus the issues the parties contest and there is no miscarriage of justice it will not matter that the procedure is not the correct one. Getting to the destination is what is important; it does not matter the means used… It is my view that it does not matter whether by writ of summons or by originating summons a writ was initiated, what is relevant in a case of this nature is the question of the justice of the case….”

The Supreme Court, unfortunately, failed to heed its own rallying cry in the above case but rather chose the path of technicalities. The Supreme Court as a policy court should be seen to do much better because its decisions set the tone and a binding precedent for all lower courts to follow. The signal that the Supreme Court apparently sent to the lower courts and society is that technical justice is more important than substantial justice.

Conclusion

The case of APC v. Bashir Sheriff & Ors., created a situation which required a delicate balancing of the interest of justice for each and all the parties involved – justice for the APC and Mr. Lawan, justice for Mr. Sheriff and of course justice for the democratic process and the society in general. What better court to do that than the apex court in the land? Although the APC and Mr. Lawan went home with a sense of justice, Mr. Sheriff and the society are really struggling to see justice in the Supreme Court decision. Justice, they say, must not only be done, it must be seen to be done. In Buhari v. INEC,⁶ the apex court stated that “Justice of a case cannot be determined in vacuo but in relation to the facts of the case. Justice so to say, which is not done within the facts of a case is not justice properly so called but justice in inverted commas and therefore injustice.” Probably, the reason that many are struggling to see justice in the Bashir Sheriff case is that it is in inverted commas.

Footnotes

* Emmanuel Abasiubong Bassey, Senior Associate in the Dispute Resolution Department of S.P.A. Ajibade & Co., Lagos, Nigeria.

1. APC v. Sheriff & Ors. (2023) LPELR-59953(SC).

2. It is worthy of note that the concurring judgment of Hon. Justice Ogunwumiju, JSC touched on the merits of the case and in the end dismissed the case instead of striking out same. The reasoning and the conclusion in the concurring judgment runs parallel, and to some extent contrary, to the reasoning and conclusion in the lead judgment of Hon. Justice Nweze, JSC. Given the circumstances of this review, the lead judgment of the Court is relied upon in this article because of the position of Nigerian law that where there is a conflict between the lead judgment and the concurring judgment the lead judgment prevails.

3. Ubi jus ibi remedium is a Latin maxim which means “wherever there is a right, there is a remedy.” The underlying principle demands that for every legal wrong, the law should provide a remedy to assuage the wrong.

4. Obi v. INEC & Ors (2007) LPELR-2166(SC) (pp. 47 – 50 paras A – F).

5. FGN & Ors v. Zebra Energy Ltd (2002) LPELR-3172(SC) (pp. 33 – 33 paras D – F).

6. Buhari v. INEC (2008) LPELR-814(SC) (pp. 84 – 84 paras E – F).

Source:mondaq