Settled Law: I Am Watching How Supreme Court Will Tame ‘Insubordination’ Of Appeal Court – Bwala

Mr Daniel Bwala, constitutional lawyer served as a spokesman to Atiku Abubakar in the 2023 Election Campaign, and before then, had dispensed legal expertise to the Senate Committee on Constitution Review and brings to light the issues between the Supreme Court and the Court of Appeal over settled law.

In this interview monitored on Arise News Television, he brings his perspectives on the unfolding constitutional questions arising from the conflicting judgments of the Court of Appeal in certain jurisdictions across the country. He particularly brings to bear the intriguing question of how the Supreme Court will approach the settled law on pre-election matters that were reopened by the Court of Appeal in Plateau State.

Perspectives on issues emerging from the election petition cases

In 2023 election we have had the worst of the judgments of court. We have not had so much of conflicting decisions by one tier of government because if you look at the election tribunals this year, you will notice that there were inconsistencies in one or two tribunal cases at the trial level and at the Supreme Court, probably one or two complaints. But at the Court of Appeal is where almost all of these conflicting judgements have been experienced.

For the records, the Court of Appeal is one court, so even if it were in Maiduguri at the Court of Appeal it can be relied upon by the Court of Appeal in Lagos because it is the same court.

The court is one and the court should be appraised of the various judgements it delivered and be consistent in its judgments especially when the judgments are founded on the principle of law. Facts can differ but the principle of law is constant and wherever you turn, when the principle falls on a direction, the judgment has to be consistent and constant.

But we have (now) seen conflicting decisions of the Court of Appeal especially where it affect the Peoples Democratic Party, PDP.

There was the judgement of the Court of Appeal in Plateau State that removed the governor and the appellate court delved into the merits of a pre-election matter and they said that it also qualified as a main election matter and delivered a judgment.

The same Court of Appeal in Ebonyi State, the same pre-election was canvassed, the Court of Appeal in Ebonyi said that it is a pre-election matter and we cannot delve into pre-election.

In Benue State, pre-election matter was raised in terms of forgery the Court in Benue said that it is a pre-election matter and we are guided by the judgment of the Supreme Court.

In all these places where judgment was delivered either in sustenance of pre-election matter in tribunal or in the rejection of the pre-election matter in the tribunal, the beneficiary has been the Peoples Democratic Party! Awesome!

Supremacy of the judgments of the Supreme Court on pre-election matters

This is where the concern comes. Section 287 of the Constitution of Nigeria makes it clear the position of stare decisis and judicial precedence that the judgment of the Supreme Court is binding throughout Nigeria on all authorities and on courts that are subordinate to it.

In this 2023 election, the Supreme Court of Nigeria settled the issue of pre-election matter in the case brought by APM, in the case brought by APC and in the case brought by Labour where pre-election matters were canvassed and they were joined together with fundamental provisions of the Constitution to suggest that this is so germane that you cannot close your eyes from it and the Supreme Court made pronouncements, in fact, with anger and vehemence that anybody who is not a member of a political party and even if you are a member of a political party and where the issue borders on pre-election, it cannot be brought and that that party is a busybody.

Distinctions between Zamfara in 2019 and Plateau in 2023

People say in 2019 that in Yari’s case the Supreme Court sacked APC and that why is PDP crying? They fail to realise that in 2019 apart from the fact that it was a decision decided on the old order on both the amendment to the Constitution and the Electoral Act, it was a case brought by a member of the All Progressives Congress, APC. It was an intra-party matter. In this year, the Supreme Court said you are a busy body to try to question even where the legality of what you are challenging is genuine if you are not a member of the party.

Issues on Plateau

You will see that there is no disobedience as a ground (for annulment of election) Even in Plateau where they say that there was no valid congress, that they didn’t even have a structure that will warrant for them to sponsor a candidate. What is the structure of a party as recognized by law?

The National Working Committee, NWC is the soul and the spirit of a political party. When you sue a party, you are suing the National Working Committee. Even if there is no any structure at all in a state, it cannot give rise to the decision of a court that there is no conduct of congress.

Even the order they claimed was violated, the order was obeyed.

In election tribunal if the time passes you, even the Supreme Court said they cannot exercise jurisdiction. The character of a pre-election matter no matter the gamut in which it arises can never be entertained by an election tribunal or an appellate court

Justice Tobi and judicial rascality

Justice Niki Tobi and the various justices of the Supreme Court that have served and have retired always in their judgments always decided that any decision by a court lower than them that tends to run away from their decisions is judicial rascality. They said that you are embarking on a frolic of your own. They said that this constitution says in Section 287 that the judgment of the Supreme Court binds all courts in Nigeria that are subordinate to it and in this case, it is the judgment of the Supreme Court that pre-election matters cannot be determined by an election tribunal.

Plateau State as an interesting case for the Supreme Court

Our hope now lies on how they would interpret the case. This case of Plateau State when it gets to the Supreme Court it would be the case of Supreme Court versus Court of Appeal. It has more to do with the sanctity and integrity of that Supreme Court itself because the Supreme Court will have to determine whether that judgment they delivered in the Presidential Election Tribunal is to be carried out by subordinate courts in Nigeria. They made it clear that a decision by a final court is called a settled law. Once a case is not determined by the final court it is not a settled law. But once it is determined by a final court it is cast on stone. So, the Supreme Court will have to determine whether the Court of Appeal is above it or it is above the Court of Appeal.

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