On May 28, 2022, the All-Progressive Congress conducted a primary election to nominate a senatorial candidate. Bashir Machina was declared the winner unopposed in the primary election.
On the other hand, Ahmed Lawan, the incumbent Senate President, was at the time of the primary election a presidential Aspirant. Ahmed Lawan lost the primary election.
For ease of reference, section 115(d) of the Electoral Act 2022 provides that:
(1) A person who signs a nomination paper or result form as a candidate in more than one constituency at the same election commits an offence and is liable on conviction to a maximum term of imprisonment of two years.
This provision of the law prevented Ahmed Lawan from obtaining the two forms at a time.
Ahmed Lawan haven lost the bid to emerge as a presidential candidate of the All Progressive Congress, the refusal of Bashir Machina to step down for him led to the conduct of another APC primary election on June 6 2022, for Yobe North Senatorial Candidate where Ahmed Lawan was declared as a winner.
Dissatisfied, Bashir Machina filed a case against Ahmed Lawan in the Federal High Court. Machina was affirmed as the Yobe North Senatorial Candidate in the Federal High Court and the Court of Appeal respectively. On February 6, 2023, the Supreme Court upturned the two decisions of the lower courts and declared Ahmed Lawan as the winner.
The Crux of the Supreme Court Judgment
In law, there are different ways of commencing an action in a court via
1. Writ of Summons is a formal document addressed to the defendant requiring him to appear before the court if he/she wishes to defend himself against the plaintiff’s claim. It is the most common way of instituting court actions and is used for contentious matters.
2. Originating Summons: This is used to commence an action with undisputed facts. Here the court is tasked to interpret a document or law.
3. Originating Motion: where statute/rules mandate its use. usually for prerogative orders (habeas corpus, mandamus, prohibition, and certiorari)
4. Petition: This is used to initiate cases like custody of a child, divorce etc
Every court in the Nigerian legal system has rules that bind the Court, Litigants and Legal Practitioners. The provisions of the Court Rules must be strictly followed when instituting/commencing an action in the court.
In the supreme court judgement of Machina v. Lawan, Justice Centus Chima Nweze, who delivered the majority judgment of the Supreme Court, held that Machina ought to have commenced his case at the Federal High Court with a writ of summons given allegations made against the defendants in his suit. He said that hostile issues were alleged in Machina’s matter that could not be resolved through originating summons. It is noteworthy that Justices Adamu Jauro and Emmanuel Akomaye Agim disagreed with the majority judgment and held that both the Federal High Court and the Court of Appeal were correct in declaring Machina as APC’s Yobe North Senatorial candidate.
“Although the Federal High Court practice direction says that pre-election matters be instituted by way of Originating Summons, the Supreme Court has held in a plethora of authorities that the rules of court supersede a practice direction. And by the rules of court, an allegation of fraud should be brought by way of a Writ of Summons. This has been the consistent holding of the Supreme Court in a plethora of matters, and it won’t stop now”
Technical justice is a wheel in the clog of social justice. Technical justice pays more attention to the procedure that has to be followed at the expense of the substance of the case. Due to procedural technicality, Machina lost his case with the court holding that Machina’s case ought to have commenced by way of writ of summons and not originating summon due to the presence of contentious allegations. Any contentious matter ought to be initiated by Writ of Summons.