On February 6, 2023, the Supreme Court stunned Nigerians when it ruled that Ahmed Lawan was the All Progressives Congress (APC) senatorial candidate for Yobe north instead of Bashir Machina. 

[Senate President, Ahmed Lawan. Daily Trust]

This was shocking because Machina had won APC’s ticket at a primary where Lawan was absent. A High Court and Court of Appeal upheld the victory. But the Supreme Court has dashed Machina’s hopes at the 2023 polls. 

There were divided opinions on the issue on social media, and even we couldn’t make much sense of it, so we spoke to a couple of experts who provided insight.

Franklin Ofodeme, Lawyer

“Machina lost today mainly on the grounds of technicality. The Supreme Court believes that Machina’s suit at the federal high court ought to have commenced using a writ of summons. However, Machina used originating summons. It’s that simple. 

“When you commence an action using originating summons, you’re merely asking the court to interpret a question of law. But when there are allegations of fact, you initiate the suit using the writ of summons so that you can call witnesses to prove your case.

“So, on technical grounds, Machina lost because the suit that gave rise to the appeal at the Supreme Court was commenced using the wrong originating process.”

[Bashir Machina. The Guardian Nigeria]

Festus Ogun, Constitutional Lawyer

“I’m surprised by the judgment of the Supreme Court. Interestingly, the decision was a split one, 3-2. Three justices of the apex court judged that the Senate President, Ahmed Lawan, is the rightful candidate of the APC. Two other justices based their judgment on the fact that the election that produced Lawan was illegal and was conducted in violation of the Electoral Act 2022.

“From the information publicly available, the basis of the majority decision of the Supreme Court was that the matter commenced by originating summons. Given that there were allegations of fraud by Bashir Machina, they ruled that they should have started with a writ of summons. 

“In my respectful opinion, I don’t subscribe to that view. The simple reason being that the matter before the court was an issue relating to the interpretation of the Electoral Act and whether APC’s action in submitting the name of another candidate — after it had conducted a primary election earlier where Machina emerged as a candidate — is valid in the eyes of the law.

“It’s expected that issues of fact will arise. They can be resolved using affidavit evidence, as far as I know. Interestingly, the federal high court pre-election practice direction 2022 by virtue of section 4, subsection 1, states that pre-election matters should be instituted by originating summons. The Supreme Court is saying the lawyers shouldn’t have initiated the action by originating summons but by a writ of summons. 

[Supreme Court of Nigeria, Abuja. BusinessDay]

“He (Lawan) didn’t participate in the earlier election. He withdrew his candidacy from the primary election conducted in May in pursuit of an ill-fated presidential ambition. If another election was conducted after a validly nominated candidate had emerged, then there isn’t much to be substantiated, even with an originating summons which requires the calling of witnesses.

“Tall and short, I align myself with the view of the (two) dissenting justices of the Supreme Court. For me, theirs represents the actual position of the law. But then, all I’m saying is academic because, under the law, the majority decision of the Supreme Court represents the true position of the law. There’s nothing we can do about it.

[Chief Justice of Nigeria, Olukayode Ariwoola. Premium Times]

“As a people, we must understand that equity follows the law. Equity won’t look at the form but the substance of the matter. The majority decision of the Supreme Court, which puts form over substance, adheres to a barren technicality.

“Beyond this judgment, many people have lost faith in our justice system. Because it’s porous, slow and largely inefficient — this is without prejudice to the Supreme Court ruling. Many of our people no longer see the judiciary as the last hope of the ordinary person. This is why some of us have advocated that we must fix the rot in our justice system for our country to move forward.

“The elite in this country make our laws. They find a way to get away with things and don’t, in the real sense of things, respect the law. They know that the inefficiencies in our laws are fertile enough for them to get around it, and they have the resources to get the best lawyers to manoeuvre their way. 

“I’ve read the Electoral Act, which is good legislation. I’ve written a lot about it. However, this judgment relating to Ahmed Lawan and Bashir Machina is a bad precedent. We must refrain from taking technicality over substantial justice. That’s the way I see it.”

Verdict

Machina lost his position because of a mistake his lawyers made. However, the Supreme Court’s position remains controversial, although it is the biggest court in Nigeria and, thus, binding.

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