Yes, that’s right. That part of the ruling that awarded the governorship to Amaechi can be said to be untenable at law, as strictly interpreted in its present form, yet sound in equity, and it is not by any stretch. And here is why. The Supreme Court of Nigeria and that of most common law jurisdictions are not just courts of Law but also courts of Equity. Any student of British medieval jurisprudence will recall that the earliest courts were delineated into two broad categories – courts of law and courts of equity, in terms of the nature of relief issuing from them. This quaint practice persevered until recently; and wherever the British went with their colonialism, they also went with this distinct but complementary system of administration of justice. Even in America, with her abhorrence of wholesale mimicry of the British legal system was not immune to this practice until their Emancipation, which brought them a written constitution, yet vestiges remain to this day as we will see presently. In the colonies of Nigeria and India, departure from this practice was slower because it was largely dependent on nuanced versions introduced into our laws piecemeal at the same pace the practice was undergoing modifications in Britain. That was when the courtroom mantra favored by lawyers of the time comprised of the popular refrain: ‘justice according to equity and good conscience, if not according to law’. In other words, while courts of law can very well proceed with the strictest interpretation of the law even when that portended absence of appropriate remedies, courts of equity were the ones that went beyond the black letter laws and resolved cases in accordance with ‘equity and good conscience’. Recall that it was the law and not equity that used to be called an ass. Today, we have a unified system that has abolished courts of equity as a distinct branch but retained the powers formerly inherent in them in the courts of law of the present time. In other words, you can still go to a court of law with the expectation that equitable remedies are also available to address your injuries where the letter of the law is hamstrung to go far enough. That is not to say that judges are no longer instinctively averse to equity because as lawyers, they are trained to interpret and apply the law, often leaving the task of riding society of bad law to the legislature.
In Amaechi versus Omehia, the issue before the court was a plain legal question, not the collateral equitable question that ultimately carried the day. And the legal question was not even an issue of first impression because the same court has resolved an identical question in Ararume versus Ugwu in favor of the proposition that such clumsy substitutions were violative of our Electoral Act and therefore must fail. So, to most legal analysts, Amaechi was more likely than not to prevail on the clear legal question raised on his substitution, as a matter of law, and any companion ruling was expected to be restricted to an order for a fresh ballot that would now have his name as the PDP candidate. The other issue, wholly equitable and unaddressed by the briefs before the court, was whether the votes cast for Omehia in the election could be held in equity to have been cast for Amaechi, given that Amaechi’s substitution could not hold water? That was the point where the Supreme Court turned activist by departing from a pure court of law and looked to its inherent equitable jurisdiction to issue that part of the ruling that awarded the governorship to Amaechi. The rationale offered by the court is so far unknown to Nigerian law as presently enacted, but is clearly consistent with sound but unwritten equitable principles underpinning our common law system for the past century. There is nothing in the Nigerian constitution or the Electoral Act – the two substantive laws by which electoral disputes are resolved that expressly mandated that ‘where a substitution fails by court order, the victory garnered by the interloper candidate must be awarded to the candidate so wrongfully substituted’. The only situation where such victory could be legally awarded in accordance with the express provisions of the law is one in which the wrong candidate was declared elected and returned, such as in the case of Obi versus Ngige, which is not in pari materia with Amaechi versus Omehia. Instead, what the law contemplated both in its express provision and spirit was for a failed substitution to lead to new elections where the candidate so wrongfully substituted but now prevailing in court will have the opportunity of standing as the candidate of the offending political party. The legislative history of our electoral laws and judicial precedents amply support this proposition. And the reason is simple. Nigeria has a political party system and our laws do not yet recognize independent candidates (like America) nor elections without candidates (like Britain). It therefore follows at logic that any vote cast in our elections is assumed at law to have been cast not only for the political party but also for the candidate. This means that the votes cast in the gubernatorial elections in Rivers State were not just for PDP standing alone but also for Omehia, as a natural person, who in a well ordered electoral system, could have lost the election for his party if Rivers people did not like him or his agenda. Conversely, if Amaechi was never substituted, he also could have lost the election not as a consequence of any voter disdain for the PDP but as a rejection of Amaechi simpliciter - as a person. Therefore, our electoral laws in their present form demands two broad requirements for validation of votes in any election. One is that there is a candidate (identifiable in his physical characteristics as an intelligent being, as opposed to a chicken or cow or even a tree); and the second, is that such candidate must be sponsored by a political party. In the case at bar, the intelligent being who met the first requirement was Omehia, not Amaechi, and the requirement of a political party was also met when PDP submitted Omehia’s name, and again, not Amaechi’s. In other words, the votes cast in the governorship elections cannot be divisible or separated from Omehia, the physical person just as same votes cannot be separated from PDP, the sponsoring party. Both of them – candidate and party, are joint owners of the votes (or entitled to them) by the entireties, analogous to being tenants by the entireties in real property law, each tenancy or entitlement inseparable in their entireties from one tenant or the other. Thus, what the court has done is blind to this legal logic and therefore tantamount to yanking the votes from Omehia as if he was never present on the ballot and then creating a new third party equitable interest (in the person of Amaechi) in the votes cast for Omehia and PDP. Think Siamese twins. Therefore, without more, the judgment would have been unassailable had it simply ordered new elections with Amaechi as the PDP candidate. The judgment courted controversy by going as far as declaring Amaechi the duly elected governor in an election that did not have his name on the ballot. So, the objections raised by those criticizing the judgment can be sustained on the plain construction of the law but not in equity.
Now to the equitable side of the coin – the gray zone where justification for declaring Amaechi governor can be found aplenty. As was said before, Nigeria is a common law country, and therefore must look to common law principles of equity, not just law in the resolution of disputes amongst her citizens. This is without question, including even disputes implicating complex constitutional questions. In the United States, their own Supreme Court looked to equity, and not plain law in resolving the election dispute in Gore versus Bush. The lower courts that ordered a manual ballot recount in Florida and thus held re-declaration of a clear winner in abeyance were not in error, as a matter of law, because America’s electoral laws expressly mandated a manual recount wherever you have substantial evidence of voidable votes. America is used to relying on mechanical devices for counting ballots and the devices are calibrated to recognize only votes (or physical marks) that conformed to what the machine can read. It is much like what you see in multiple choice questions where you have boxed fields that must be shaded, and properly so. In Florida, there was real evidence that thousands of ballots had hanging chards, off-mark shadings, and other mutilations that made it impossible for a machine to recognize which candidate should be allotted the votes. Thus, the only reasonable means of ascertaining the intent of the voter was to do a manual recount where humans, and not machines, visually examined the ballots and applied their power of observation and ordinary discretion in determining which candidate got the vote. In the recount that ensued, Gore was winning and Bush was losing votes by the droves but it was tedious and stressful for an America that wanted finality to avoid a looming constitutional crisis. Recall that the first tabulation of the ballots, done in accordance with the usual way Americans had always counted their ballots (by machines) had awarded victory to Bush. So, the Supreme Court of the United States, sitting as a court of equity considered this and more and intervened with a ruling that stopped the recount in its tracks. And, although the court acknowledged that the election was seriously flawed, it declined from ordering fresh elections but went beyond the strict expectation of the law to re-award victory to Bush, thus seeming to have sustained the popular will by judicial fiat. The lead judgment was read by CJ William Rehnquist who waxed very eloquent on the many reasons that informed that extraordinary ruling. Reasons were not found in law but in doctrines of public policy (machines are blind and therefore more trustworthy than bias-prone human discretion), and above all, equity in so many words or ‘substantial justice’, as the court called it Amaechi versus Omehia. Strict constructionists railed, but only for the record because they knew that a Supreme Court ruling is final in the United States, much like it is in Nigeria.
More extreme examples of equity rather than pure law can be found in the case of District of Columbia versus Marion Barry, mayor of Washington DC. In that case, following a very unfair but lawful FBI sting operation where Barry’s unstable mistress, Rasheeda Moore was used to entrap him to do hard drugs on camera sequel to a sexual romp, an outraged District of Columbia jury dismissed all but the least counts in Barry’s narcotics grand jury indictment and gave him a slap on the wrist by ordering a mere six-month term for an offense that surely brings hard time under America’s tough drug laws. Americans accepted the outcome with equanimity because they know that the precepts of equity will always stalk their system of justice as an alternative route out of what they saw in this case to be an intolerable prosecutorial overkill of Barry. It helped that Barry was black, a maverick mayor, and a Democrat in a Republican-led investigatory climate. Another example, though somewhat troubling is that of OJ Simpson’s acquittal for the gruesome murder of his ex-spouse and her lover, primarily because a jury of his peers, representing the disapproval of the moral (or equity-aware) majority refused to convict him because they sensed a police investigatory overzeal that unfairly targeted Simpson because of his race and perhaps for daring to procreate with a popular white female and murdering her to boot. It helped that there was evidence that Simpson’s enviable stature as a wealthy sports hero ignited the racial jealousy of Mark Furman, the shockingly bigoted white lead investigator. So, in the United States, when courts overlook or go beyond the express letters of the law in the resolution of disputes –criminal or civil, equitable principle or its garden variety, mostly found in community standards of fairness is the stark reason; and when juries do the same, it is called jury nullification, which is nothing but application of equity or community standards of fairness by lay citizens. Thus, in Jim Crow America, equity (or jury nullification) was deployed to great success by judges and jurors to freeing America from her ‘lawful’ but inequitable adherence to the letter of the written law to justify discriminatory practices against her black minority. And whenever that happens, we should understand that the court or jury is not crazy but merely using its long-arm jurisdiction as a fact-finder to right flagrant wrongs and make new laws at the same time, if not asserting its common law role as part of the grundnorm. Amaechi’s surprising victory is no exception, and so, though patently untenable in law, the ruling declaring him the duly elected governor is sound in equity and it is final. It shall remain the law of the land until the National Assembly upturns it by legislation, but not retroactively.
Aloy Ejimakor is of Law Group. Washington, DC alloylaw@yahoo.com
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