Justice Olukayode Ariwola, CJN.
Incontrovertible legal perspective.
The decision of the Supreme Court on 6th February, 2023 in the case of Machina v. APC has raised a lot of dust.
Much of the comments are largely made based on uninformed view of how the case played out and how civil proceedings work.
I will throw more light on these issues so that we can see how some of us are acting like the proverbial fowl’s neck that is keeping malice with the pot instead of the knife that killed it.
My comments however, will be limited by the fact that I have not read the full judgement to determine the full extent of the _ratio decidendi_ of the Apex Court.
On the 28th day of May 2022 APC conducted primary election to determine the Senatorial Candidate for Yobe North Senatorial District.
Lawan did not.
Machina was declared the winner.
APC later cancelled the primary election on the ground that the person that conducted/monitored the primary election was not nominated by the National Working Committee (NWC) of APC which is the only body that has the power to conduct primary election.
APC refused to submit his name.
Accordingly , on the 9th day of June 2022, APC’s NWC conducted another primary election.
This time around, Machina did not participate.
Lawan participated and was declared the winner. APC submitted Lawan’s name and this prompted Machina to file a suit at the Federal High Court wherein they challenged the actions of the APC and praying the court to declare him the candidate of APC.
Machina’s lawyer commenced the suit by way of Originating Summons.
Originating Summons as a mode of commencing suits is used when a party wants the court to construe or interpret a law, contract, agreement and actions and sets questions for the court to determine or answer.
It is usually used where the facts of the case are not contentious.
This is why cases commenced by way of Originating Summons are determined by use of affidavit evidence only wherein facts supporting the case of a party are set out.
In the affidavit filed by Machina’s lawyers in support of their case, they raised issue of criminality by making allegation of forgery against the APC.
Note that the case in question is a civil proceeding and the standard of proof for such proceeding is on the balance of probability.
Cases are won based on the person in whose favour the evidence preponderates.
However, in criminal proceedings or in civil proceedings where allegations of crime is made (as in this case), the standard of proof is beyond reasonable doubts.
Criminal allegations are not determined by affidavit evidence as oral evidence subjected to the test of cross examination is required.
Fortunately, for Machina, he won at the Federal High Court and at the Court of Appeal.
APC then appealed to the Supreme Court.
One of the grounds of appeal at the Supreme Court is whether Machina’s case was properly commenced by way of Originating Summons at the trial court in Damaturu, given that the Originating Summons contains allegations of crime and proof of same was merely done by way of Affidavit.
The lawyer to Lawan argued that the suit ought to have been commenced by Writ of Summons and not by Originating Summons.
That, given the allegation of crime, the only way to establish same was by commencing the suit by way of Writ of Summons, which will then give room for oral evidence with its attendant cross-examination.
Machina’s lawyer had no valid reply to this submission.
The Supreme Court therefore, agreed with the lawyer to Lawan; faulted Machina’s lawyer for commencing the suit by way of Originating Summons and without oral evidence to prove allegations of fraud; held that the suit was not properly commenced and; that having commenced same improperly, the trial court and by extension the Appellate Court had no jurisdiction to hear and determine same.
The Supreme Court consequently set aside the decision of the Court of Appeal which is to the effect that Machina was the candidate of APC.
Some have criticized this decision on the ground that it ignored the merit of the case and merely determined it based on ‘technicality’.
At this point, one may ask, what exactly is technicality?
The 6th edition of Black’s Law Dictionary, defined technicality to mean “immaterial, not affecting the substantial rights, without substance.”
The spirit of substantial justice is rooted in the Latin maxim _fiat justitia ruat caelum,_ which means “let justice be done though the heaven falls.”
In fact, English poet and philosopher Walter Savage Landor wrote many years ago, “when law becomes a science and system, it ceases to be justice.”
The opinion of Lord Denning is that the proper role of the judge is to do justice, that if there is any rule of law which impairs the doing of justice, then it is the province of the judge to do all he legitimately can to avoid the rule.
The keyword here is ‘legitimately’.
My point in the instant case is that the decision of the Supreme Court is not based on technicality.
In the case of Madukolu v. Nkemdilim, the Supreme Court laid down four ingredients for a court to possess jurisdiction to entertain a suit.
One of those ingredients is that an action must be initiated by due process.
It means therefore that failure to initiate an action by due process of law (as Machina’s lawyer did in this case) goes to issue of jurisdiction.
It should not be regarded as an anomaly if a court refuses to entertain a matter because same was not initiated by due process, as the rationale behind this condition is to ensure sanity and check in legal processes.
Rules are integral parts of the law and any attempt to downplay the rules will make the law lifeless and susceptible to the whims and caprices of any judge and if the court is not stringent on such, gross abuse of process and illegalities will become the order of the day.
Thus, if a substantive law spells out due process to be followed in filing an action, the litigants should not be so negligent as to neglect the rules and argue technicalities. (See FBN v Maiwada; Okafor v Nweke.)
This captures the legal maxim _vigilantibus et non dormentibus jura subveniunt,_ which is to the effect that the law will only help those who are watchful.
Thus, counsel should not make critical mistakes that can cause fatalities to their case.
Mode of commencing an action in court goes to the issue of jurisdiction and the issue of jurisdiction is a threshold issue. Jurisdiction grants you access to the temple of justice.
If for instance the password to your phone is ‘GenZ22’ and you type something else, there is no way your phone will grant you access to its content.
In all known legal systems, jurisdiction is the basis on which the power of the court is premised.
It is therefore a fundamental principle of law that any decision reached by a court of law without jurisdiction is null, void and of no legal effect whatsoever.
This vital and overwhelming importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal or to the Supreme Court; _a fortiori_ the Court can _suo motu_ raise it. (See Bronik Motors Ltd & Anor v WEMA Bank Ltd.)
In the instant case, Machina’s lawyer commenced the suit wrongly through Originating Summons instead of Writ of Summons.
The allegation of crime made in their case can only be resolved through oral evidence which is not allowed in Originating Summons.
Abdul Mahmud Esq. called it a school boy error on the part of Machina’s lawyer and I agree with him.
There is nothing technical about the fact that you commenced an action through an Originating Summons, made an allegation of crime vide an affidavit and became constrained to prove same through oral evidence which should be tested by cross examination.
The other party deserves an opportunity to examine the evidence of crime alleged against it and the only means to do so is through cross examination.
Unfortunately, Machina’s lawyer commenced the action through Originating Summons and therefore made it impossible for oral evidence to be given and for such evidence to be tested by cross examination.
Does this not affect substantial justice?
It certainly does.
No one should talk of technicality when a substantive provision of the law has been rightly invoked.
The decision of the Supreme Court reflects due process.
Some people have asked how someone who did not participate in a Primary Election can be declared the winner of the Primary Election.
This question is wrong in the sense that it assumes that Lawan did not participate in APC primary election.
As I said earlier, on the 28th day of May 2022 APC conducted primary election. Machina participated. Lawan did not.
Machina was declared the winner.
APC later cancelled the primary election on the ground that the person that conducted/monitored the primary election was not nominated by the National Working Committee (NWC) of APC which is the only body that has the power to conduct Primary Elections.
APC refused to submit his name.
On the 9th day of June 2022, APC’s NWC conducted another Primary Election. This time around, Machina did not participate.
Lawan participated and was declared the winner and APC submitted Lawan’s name.
Note that a staff of INEC Yobe testified at the High Court in Damaturu that INEC monitored the Primary Election that produced Lawan.
This brings me to the issue of tyranny of the political parties as Monday Ubani Esq. put it and the issue of Primary Election being an internal affair of a party.
It is very clear that APC wanted Lawan as its candidate and not Machina and therefore did everything it could to ensure Lawan’s emergence.
APC refused to submit Machina’s name after the first Primary Election.
They cancelled the first Primary Election on the ground that the person that conducted the primary election was not nominated by the National Working Committee of the party.
They, then, went ahead to conduct another one during which Lawan emerged and hurriedly went to submit his name.
Machina had very little chance against APC.
The party cancelled the earlier primary election on the ground that the person that conducted the primary election was not nominated by the National Working Committee of the party and went ahead to conduct a fresh one.
The little chance that Machina had, his lawyer messed it up.
All his lawyer needed to do was to file an Originating Summons stating that Machina was validly elected but wrongfully substituted; then prove that the first primary election was valid and that Machina won.
He didn’t do that.
He, instead, went ahead to make criminal allegations of fraud in the Originating Summons thereby taking his case out of the category of cases that could be commenced by Originating Summons.
Some have tried to exonerate Machina’s lawyer by referring to Section 4(1) of the FHC (Pre-Election) Practice Directions, 2022 which mandates that all pre-election matters shall be commenced by Originating Summons.
However, as compelling as this submission is, one must note that Practice Directions are inferior to Rules of Court.
So, where a Practice Direction contradicts the Rules of Court, such provision of the Practice Directions must give way to the superior provisions of the Rules of Court. (See the case of APC v. Elebeke)
I feel so sorry for Machina over this avoidable loss.
The Supreme Court could not have done the case for him.
The Supreme Court decided the case that was brought before it based on what Machina’s lawyer filed and argued.
If you are looking for who to blame, then blame APC for its tyranny, for not wanting Machina and doing everything possible to ensure the emergence of Lawan.
Then, blame Machina’s lawyer for sleeping in Law School when Civil Proceedure was being taught.
He had a golden opportunity to call APC to order but messed it up by flouting the basic civil proceedings rules on mode of commencement of matters.
I enjoin all us to however be patient until we read the full judgment before making uninformed comments and thereby heating up the polity.
Ladies and gentlemen, in all you do, please get a good lawyer so that you will not whip up unnecessary sentiment when your lawyer drops the ball.
Author is anonymous.
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