Justification for the Supreme Court Decision in the Zamfara APC Case – Nonso Robert Attoh


 “For the avoidance of doubt, a party that has no candidates in an election cannot be declared the winner of the election. This being so, the votes credited to the alleged candidates of the 1st Appellant in the 2019 general elections in Zamfara State are WASTED VOTES. For that reason it is hereby ordered that candidates of parties other than the 1st Appellant with the highest votes and the required spread stand elected into the various offices that were contested for in Zamafara State in the 2019 General elections. – Per Paul Adamu Galumje JSC in APC & Anor. V Senator Kabiru and Ors

The above ratio by the Supreme Court in the recently concluded case involving the APC candidates in Zamfara State has raised a lot of legal and academic furore with many commentators wading in either on the side of the Supreme Court decision or vociferously criticizing the Supreme Court decision as being wrong or unjust.

I offer this condensed opinion, not as a comprehensive exposition of the issues raised by this decision, but rather an attempt to stimulate further discourse and to throw some light on some neglected aspects of the issues under consideration.

My position is influenced by the fact that there are two Rules adopted by the courts all over the world in dealing with the issue of the effect of votes cast in an election for a person who is either dead or who has withdrawn from the election or a person who is disqualified. These are the American Rule and the English Rule.

In the Zamfara APC case, the Supreme Court adopted the minority English Rule and, in our opinion, in the light of our extant laws and the diverse ramifications of justice, it is inappropriate to allege that in adopting such a position they have resorted to technicalities and failed to do justice. The much-touted section 140(2) of the Electoral Act 2000 has also been interpreted by the Supreme Court and as we will see, it is not applicable in this case.

In accusing the Supreme Court justices of failing to do justice, one fails to realize that corrective or retributive justice is also an aspect of justice. Going by the obiter dictum of the court, one can distil the corrective/retributive justice orientation of the court in adopting the English Minority view. This is also not the first time the court has adopted this corrective/retributive approach to justice in dealing with wasted votes. When we insist that only our preferred concept of justice must be adopted by the courts, we only give credence to the idea of Hans Kelsen that justice is an irrational ideal,” representing nothing but the subjective predilections and value preferences of individuals and groups”.

We will therefore succinctly highlight these two views, consider the applicability of section 140 and also consider the suggestion that the APC should apply to the Court for a review of its judgment.


A statute may prescribe what would be the effect of votes cast for dead, withdrawn or disqualified candidates as we have in some American States, However, where there is no such statute, courts have placed reliance on case law to establish a precedent. The legal effect of votes cast for a deceased, withdrawn, or ineligible candidate is thus dictated by one of two competing philosophies: the majority, or American Rule, and the minority, or English Rule. Even though section 140 prescribes that where an election is annulled because the purported winner is disqualified, the American Rule should in effect be adopted in ordering a fresh election, the case under consideration was not brought in circumstances calling for the application of section 140.

The English Rule treats votes cast for known dead or withdrawn candidates as nullities because of the candidate’s ineligibility. The null votes affect the election’s outcome only if they were intentionally cast as protest votes. (this is a case where the voter knew that the candidate was dead or disqualified and still cast his vote for the candidate as a protest against the remaining candidates) Otherwise, they are treated as if the voter deliberately threw them away. The Rule is expressed in the case of State ex rel. Wolff v. Geurkind, 111 Mont. 417, 109 P.2d 1094, 1099, 133 A.L.R. 304[1] thus; “that a voter at the polls, unless he votes for some person, is not voting at all,” that such ballot “is a nullity, cannot be counted and cannot be given any effect in determining the result of the election.”

The American Rule counts votes cast for dead, disqualified, or withdrawn candidates to determine if the living candidate with the most votes received enough votes to be declared the winner. Under the American Rule, votes cast for a dead, disqualified, or withdrawn candidate are considered to have been cast with the intention of leaving the office vacant and filling the vacancy as statutes direct rather than allowing the second place finisher to take office, regardless of whether the voter knew his chosen candidate was dead or ineligible.

According to the Supreme Court of California in 1859, in Saunders v. Haynes, 13 Cal. 145, the reason for rejecting the English Rule can be summarized in the few statements below;

  • An election is the deliberate choice of a majority or plurality of the electoral body which is evidenced by the votes of the electors.
  • But if a majority of those voting, by mistake of law or fact, happen to cast their votes upon an ineligible candidate, allowing the person next to him on the poll to receive the office may mean that a person might be elected who received only a small portion of the votes and who never could have been elected at all but for this mistake.
  • It is fairer, more just, and more consistent with the theory of American institutions, to hold the votes so cast as merely ineffectual for the purpose of an election, than to give them the effect of disappointing the popular will, and electing to office a man whose pretensions the people had designed to reject.”
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In Derringe v. Donovan, 308 Pa. 469, 162 A. 439, 441, the court’s reasoning was that a contrary rule would be “repugnant to the principle of majority rule, which is the cornerstone of orderly government.”

Despite the recognition of the American Courts that there are difficulties inherent in applying the English Rule, it is incontrovertible that the English Rule is a valid rule which can be applied where the circumstances so require, especially as our Supreme Court is not bound by any foreign precedent but can only be persuaded by them. Thus, in view of these considerations, it is inappropriate to suggest that the Supreme Court erred in its decision to adopt the English Rule in preference to the American Rule.

Reading the obiter of the court that immediately followed the decision, the court clearly warned that those countries we borrowed our democracy from, like the United States and other democratic nations of Europe are steadily forging ahead in all areas of endeavour in order to create a stress free and economically viable nation while some politicians are dragging the nation backward and may likely drag the nation to the stone age if care is not taken. The court thereafter concluded by urging the politicians to play the game according to the law and guidelines which they have created as it is only when this is done that sanity will take centre stage in the domestic and international affairs of the nation. The Court had equally earlier, on page 48 of the judgment, stated that the resort of the APC to court “barely a day after the so called primary election is a reflection of the attitude of combative politics of politicians who think they can commit illegality and hope to procure court’s protection”

Thus, by these unambiguous statements, the court had made it clear that it was applying corrective/retributive justice to ensure that the Respondents do not benefit from their illegality. Corrective justice is equally an accepted form of justice which depending on the prevailing circumstances may trump other forms of justice.


From an analysis of s.140 and from the decisions of the Court, the following points are to be noted

  1. An order of fresh elections cannot be made without an order nullifying the election having been first made – MR JOSEPH OLUJIMI KOLAWOLE AGBAJE v. INDEPENDENT ELECTORAL COMMISSION & ORS (2015) LPELR-25651(CA)).
  2. The appropriate court cannot grant the relief of nullification of an election and ordering of a fresh election where the petitioner has not specifically prayed the court for that relief. – MUSTAPHA v.BULAMA & ORS (1999) 3 NWLR (PT 595) 376 AT 384, MR JOSEPH OLUJIMI KOLAWOLE AGBAJE v. INDEPENDENT ELECTORAL COMMISSION & ORS (2015) LPELR-25651(CA).
  3. The jurisdiction to declare the election invalid is vested in an election tribunal not in the Supreme Court – Rotimi Amaechi v INEC (2008) 5NWLR (Pt.1080) 227, GOODLUCK NANA OPIA v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ANOR (2014) LPELR-22185(SC).
  4. Even the tribunal has no jurisdiction to nullify an election without hearing the parties in the petition or even go further to make consequential orders UBA v. ETIABA & ORS (2008) LPELR-5039(CA).
  5. For a fresh election to be ordered, the nullification of the election must be on the ground that the candidate was disqualified to contest the election, see SALEH v. ABAH & ORS (2017) LPELR-41914(SC) or (under the Act as amended), that the election was marred by substantial irregularities or non-compliance with the provisions of the Act.
  6. Section 141 of the Electoral Act only applies in cases of post-election cases at the Election Tribunal as against pre-election matters. To hold otherwise would mean allowing ineligible persons to contest and win an election and thus deploy dilatory tactics to reap from his or her fraud to the fullest until the expiration of the tenure procured by fraud SALEH v. ABAH & ORS (2017) LPELR-41914(SC).

According to the Court the Act intends that a petition must contain prayers for the reliefs in S.140 of the Act, depending on the ground for the petition and by the principle that a Court cannot grant a relief not asked for, a condition precedent to the exercise of jurisdiction to grant the reliefs in S.140 of the Act is that these reliefs must be asked for. Where there is no prayer in the petition for them, the tribunal or court cannot grant them.

According to the court by virtue of S. 140 (1) and (2) of the Electoral Act 2010 (as amended), an order of fresh elections cannot be made without an order nullifying the election having been first made. Thus where it is glaring that the appellant was not interested in the nullification of the entire election and the ordering of fresh elections and was only interested in being declared winner of the election and returned as Governor Elect and so did not seek the nullification of the election and the ordering of fresh election, proceeding to try the petition on the basis of the grounds held by the Tribunal to be valid would serve no beneficial purpose to the petitioners and would amount to an idle and vain exercise.

The Court in Rotimi Amaechi v INEC arrived at its decision that only the Tribunal can nullify an election, by an interpretation of the identical provisions of section 147 of the Electoral Act 2006 and Paragraph 27 of the First Schedule to the Electoral Act 2006 and thus stated;

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“The combined effect of section 147 and paragraph 27 above is that this court has no jurisdiction to nullify an election and order a fresh one. All that I can do it to declare whether or not Amaechi was the candidate validly nominated and to grant him the reliefs which on the evidence he is entitled to. The jurisdiction to declare the election invalid is vested in an election tribunal.”

However, the same effect is achieved by construing the provision of section 133(2) of the Electoral Act 2010 which provides that: In this part, “tribunal or court” means-

(a)    in the case of Presidential or Governorship election, the court of Appeal; and

(b)    in the case of any other elections under this Bill, the election tribunal established under the Constitution or by this Bill.

In other words, the only courts that can nullify an election on the ground set down in section 140(2) and order a fresh election is either the Court of Appeal in the case of presidential or governorship election, or the specific election tribunal set up for that election.

We will wish to state in a blanket manner that none of the five preconditions identified above exist in this Zamfara case to warrant an order for a fresh election – there has been no order nullifying the election, there has been no prayer seeking for a nullification, or order of fresh elections, the case was not before the prescribed election petition Tribunal, but began at the High Court and ended at the Supreme Court on an issue totally unrelated to the question of disqualification of the candidates. The case before the court was questioning the election on the grounds of the qualification of the APC candidates to contest the election. In fact, it was a pre-election matter.

As you may recall, it was the APC etal. that applied to the High Court to declare its state primaries conducted by its state party executives as valid and was successful at the High Court. However, the Court of Appeal reversed the judgment of the High Court and declared the purported primaries as invalid. Thus, the issue before the Court was about the validity of the APC state primaries not about the nullification of the election based on the lack of qualification of the APC candidates. Based on this alone, the condition precedent for ordering a fresh election does not exist in this situation.


We will open our treatment of this issue with the immortal words of Justice C. Oputa regarding the Supreme Court that “We are final not because we are infallible, rather we are infallible because we are final”.  Thus, it has been recognized by the Court in quite a number of cases that being the Apex Court in Nigeria, it cannot sit on appeal over its own judgment. It may be important as an aid to understanding the legal position, to make a distinction between the Supreme Court overruling a previous decision which it has found to be a vehicle of injustice, against public policy or decided per incuriam etc, and a case requiring the Supreme Court to change its decision in a current case. The first case has always been possible and has occurred many times in the Supreme Court Jurisprudence such as in the case of Adisa v. Oyinwola (2000) 10 NWLR pt 674 at 116 where it overruled its previous decision in Oyeniran v. Egbetola (1997) 5 NWLR (504) 122, etc.

However, the second scenario is frowned at by the court as an attempt to make the court sit on appeal over its judgment. There are myriad cases on this issue but I will take as very apposite the decision of Justice Taslim Elias in the case of Minister of Lagos Affairs Mines And Power & Ors v. Chief Akin-Olugbade & Ors SC.83/1970 SC.369/1970, decided on 8th November 1974.

In that case the learned justices of the Supreme Court had allowed the applicants to demonstrate to it that the Court had jurisdiction to entertain the applications which among other things prayed the court to “to review the decision of this Honourable Court delivered in the above matter on Friday, 21st June, 1974, pursuant to the provisions of Order VII rule 29 of the Supreme Court Rules 1961 in the manner and on the grounds set forth in Schedule 1 to this Motion on Notice”

The learned counsel for the applicant thus submitted that the court has power to review its judgment in two instances (a) where the order of the Court has not been drawn up at the time of the application for a review, and (b) where the decision sought to be reviewed was given without jurisdiction.

The Supreme Court had previously in Ashinyanbi and Ors. v. Adeniji (1967) 1 ALL N.L.R. 82, examined the circumstances in which it will review its own previous judgment, in the case of applying the “slip rule” for the correction or modification of an order or orders embodied in a judgment on the ground that the order as drawn up did not represent what the court had intended to record.

The slip rule as applied by the Court in that case merely envisages clerical mistakes and errors arising from any accidental slip or omission

The Court equally referred to the dictum of Lord Halsbury concerning the operation of the slip rule thus “If by mistake or otherwise an order has been drawn up which does not express the intention of the court, the court must always have jurisdiction to correct it. But this is an application to the Vice-Chancellor in effect to re-hear an order which he intended to make but which it is said he ought not to have made. Even when an order has been obtained by fraud it has been held that the court has no jurisdiction to re-hear it. If such a jurisdiction existed it would be most mischievous.” (See per Halsbury L.C. in Preston Banking Co. v. William Allsup & Sons (1895) 1 Ch. D. at page 143)

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The court finally held conclusively that “We are firmly of the view that O.7, r. 29 of our Supreme Court Rules, 1972 envisages only an application for the invocation of the “slip rule” as adumbrated in Ashinyanbi’s Case and that it does not enable an application to be brought for the review of any fact or law in a previous judgment of this Court. To allow that to be done would amount to treating the application as an appeal and this could not be in view of the provisions of Section 120 of the Constitution of the Federation, 1963…. For, were we to accept the submission of counsel for the applicants that we can exercise jurisdiction to entertain these motions to look into complaints about the law or the fact in the judgment being attacked, there would be no finality about any judgment of this court and every dis-affected litigant could bring further appeals as it were ad infinitum. That is a situation that must not be permitted.”

However, the court in closing referred to its earlier decision in Patrick J. Osoba v. The Queen F.S.C. 141/1961 decided by the Court on May 19, 1961 which, though a criminal case, was probably the first of its kind to be brought asking the Federal Supreme Court to review an earlier decision. The dictum of the court raises further academic questions about the future developments in the Court since 1974 as to the power of the court to review its judgments in cases of judgments obtained by fraud.

In refusing to entertain the motion, the Federal Supreme Court said inter alia: “Mr. Khambatta has suggested that as a result of Section 110 of the Constitution of the Federation the Court has an inherent power to prevent a miscarriage of justice by making whatever order justice may require even at this stage, but the Court is not entrusted by the Constitution with any general supervisory functions, and in the exercise of its appellate jurisdiction it is bound by the ordinary restrictions on the setting aside of a judgment once pronounced and perfected. We will decide what powers the Court possesses in relation to a judgment obtained by fraud, such as was said to have occurred in Flower v. Lloyd, when the case arises. This is not such a case and no circumstances are alleged which would justify the Court either in treating its previous decision as a nullity or in assuming power to set it aside.”

However, this Zamfara case is not one where the judgment was obtained by fraud so, and as such we may as well spare our self that academic drudgery However, if you are interested in following  up the inquiry into the circumstances when the Court can review its judgments beside the slip rule situation, you may see the cases of Alao V. ACB (2000) 9 NWLR (Pt 672) 264, Tomtec (Nig.) Ltd. V. FHA. (2009) 16 NWLR (Pt 1173) 358 SC, and Jev V. Iyortom (2015) NWLR (PT. 1483) 484, ELIAS V ECOBANK NIGERIA PLC (CA/L/873/2014)[2016] NGCA 62 (8 APRIL 2016) etc.

Finally we repeat the dictum of  Morris, L.J., in Thynne v. Thynne (1955) 3 All E.R. 129, at page 146: as reproduced by the Justice Elias in the case above “Where a court has decided an issue and the decision of the court is truly embodied in some judgment or order that has been made effective, then the court cannot re-open the matter and cannot substitute a different decision in place of the one which has been recorded. Those who seek to alter must in those circumstances invoke such appellate jurisdiction as may apply.”

There is no such applicable appellate jurisdiction over the judgment of the Supreme Court.

POSTSCRIPT: You may wish to note that even the Indian constitutional system which gives the Supreme Court power of review also recognizes that it may not be exercised on the ground that the decision was erroneous on merit.” (Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (AIR 1979 SC 1047). The Indian Supreme Court has clarified that a review is by no means an appeal in disguise and stated that the basic philosophy inherent in review is the universal acceptance of human fallibility and as such rectification of an order stems from the fundamental principle that justice is above all. Review is exercised to remove the error and not for disturbing finality. (S.Nagraj vs State of Karnataka (1993)).

We suggest that it is wisdom for the APC to rest this case, even though there are nuances to the application of section 140 that may be explored by other aggrieved individuals subject to the discretion of the court to overrule itself on the consequential order made in this case. Unless those nuances are explored, we can only wait until a better opportunity appears for the application of section 140 or for legislative overruling of the decisions of the court adopting the English Rule.

Nonso Robert Attoh is a law lecturer and writes from Enugu State Nigeria


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