The June 6, 2016 judgement of the Kogi State Election Petition Tribunal subjected to close examination. Bimbo Adewole, LL.M. raise pertinent questions from a judgement that neither pretends to embrace logic nor dispense justice.
- Augustine, the ancient philosopher and theologian once said: “[t]he ignorance of the judge is the calamity of the innocent.” G.F.G. Mathison expatiated upon this immortal statement by saying that “an ignorant judge brings the law into contempt and will press and hurry on to judgment, so as to stifle all fair inquiry; but an able judge will detect the sophistry of advocates, and prevent its being made the cause of oppression”. Nothing validates these statements better than the judgment of the Kogi State Election Petition Tribunal in the case of James Abiodun Faleke v. INEC & Anor. (2016, unreported).
On Monday, 6th June, 2016, the tribunal gave its much awaited judgment in the case. With a bang, the tribunal surprisingly upheld the election of Alhaji Yahaya Bello as Governor of Kogi State. Not a few Nigerians were shocked by the judgment. Indeed, the judgment of the tribunal can best be described as a judicial coup d’état as it has subverted some fundamental elements of our Constitution and principles of law.
The judgment of the tribunal brings to light, once again, issues relating to the quality and capacity of some men and women who now adorn the sacred temples of justice in this country. The 1999 Constitution of Nigeria (as amended) is an organic document. It is necessarily dynamic and has the ingredient of a document that shows progressive tendencies. Therefore, it is expected that judges should be seen to be in the vanguard in expounding the horizon of the contents of the Grundnorm to give meaning and life into it without fear or favour. It is expected that the judges should use their awesome power to assuage the yearnings of the people who hope for a society where no one is oppressed or unjustly treated by the powers that be. Such conceptualization envisages a judiciary that galvanizes brilliant minds minds that are open to reasonable application of intellect to exploring or finding a remedy or solution to a problem that besets anyone who comes to seek refuge before them. Judges are to adjudicate based on the tenets of the constitution as epitomised in the nature of their oath of office. The judiciary, as established by the constitution, is to exercise its judicial powers to give strength and teeth to the notion and prescription that it alone is to state what the law is.
The judgment of the Kogi State Governorship Election Petition Tribunal headed by Justice Halima S. Mohammed exemplifies clearly the decline in the intellectual quality of our judges. The direct effect of this trend is the inevitable calamitous tendency of witnessing a spectacle of miscarriage of justice in many instances. After reading the judgment, an objective mind is bound to go away with a lingering question: “Did the tribunal really understand the case that was brought before it?” There is nothing to indicate that the tribunal understood the facts and issues presented before it. To put the matter most gently, the judgment is simply flabbergasting. The judgment is lacking in depth of knowledge, robust consideration of issues, scholarship, courage and independence of mind. It is, with due respect, an advertisement of gross ignorance and incompetence. In a most horrifying and disgusting manner, the tribunal adopted hook, line and sinker, the submissions of the respondents’ counsel and transformed same as its judgment. It did this at the expense of the dexterous submissions of the petitioner’s counsel. What can be seen is nothing short of a voyage in judicial adventurism where the substance of the case brought before the tribunal was deliberately ignored and the tribunal chose to pursue shadows.
The President of the Court of Appeal, Hon. Justice Zainab Adamu Bulkachuwa, who constituted the tribunal, must now, surely, be ashamed of the quality of the judgment that emanated from the tribunal she set up, especially having regard to the serious nature of the constitutional issues involved and the attention the case attracted not only in Kogi State and Nigeria but the whole world. Indeed, the judgment is nothing to write home about as it diminishes the Nigerian Judiciary in no mean measure. My task here is to examine some of the issues discussed in the judgment, the decisions of the tribunal on them and attempt to analyse them against the settled principles of our law. This is by no means a herculean task as a mere fleeting reading of the judgment reveals that virtually every pronouncement of the tribunal is erroneous and appealable. It is nauseating.
BACKGROUND FACTS
Hon. James Abiodun Faleke, the petitioner, contested the November 21, 2015 Kogi State Governorship election as a deputy-governorship candidate on a joint ticket with the late Prince Abubakar Audu (the governorship candidate) on the platform of the All Progressives Party (APC). At the end of the polls, the joint ticket of Audu/Faleke scored majority of lawful votes of 240,867. They (Audu & Faleke) also satisfied the constitutional provision of section 179 (2), by scoring the highest number of votes and not less than one-quarter but of all the votes cast in all of, not just two-thirds, the local government areas in Kogi State. Significantly, the results in all the 21 local government areas were announced by the Independent National Electoral Commission (INEC). INEC, however, declared the election inconclusive on the sole ground that the margin of win between Audu/Faleke’s 240,867 votes and Wada/Awoniyi’s 199,514 votes was 41,353, which votes were less than the number of registered voters in 91 polling units where votes were cancelled for various reasons. The returning officer stated that by INEC guidelines, no return could be made for the election until a supplementary election was held in the areas where election was cancelled. It is to be noted that INEC never attributed the inconclusiveness of the election to Prince Audu’s death. Meanwhile, the supplementary election held on 5th December, 2015 where Alhaji Yahaya Bello’s name featured as a governorship candidate of APC, he was made to substitute the late Prince Abubakar Audu. At the end of the day, Alhaji Yahaya Bello was returned as Governor of Kogi State after winning just 6,885 votes in the supplementary election. He contested the election without a deputy governorship candidate.
HON FALEKE’S CASE.
The case of Hon. James Abiodun Faleke is simple and straightforward. He filed a petition seeking a declaration that election to the office of Governor of Kogi State, held on November 21, 2015 was already conducted, completed and concluded by the INEC. He further sought to declare that INEC’s proclamation that the governorship election held in Kogi State on November 21,2015 was inconclusive is unconstitutional, illegal, unlawful, arbitrary, null and void and ultra-vires the power of INEC. The fundamental question before the tribunal for determination, therefore, was whether or not the election of November 21, 2015 was conclusive. The petitioner predicated his assertion of the conclusiveness of the election on the following facts established in evidence:
- That all the results of the 21 local government areas in Kogi State were duly recorded in the requisite forms and declared by INEC. Form ECA8Cs that contained all the results of the local government areas, duly filled, signed and certified were tendered and admitted as Exhibit P19
- That the joint ticket of Prince Audu/Hon. Faleke already scored 240,867 votes as against Wada/Awoniyi’s score of 199,514 votes with a margin of 41,353 votes.
- That in the 91 polling stations where election was cancelled, there were less than 38,000 eligible voters which cannot alter the success already recorded by Audu/Faleke ticket.
- At the end of the supplementary election, less than 15,000 votes were recorded for all the parties.
- That the scores announced by INEC at the November 21, 2015 election satisfied the provision of section 179(2) of the constitution which already deemed Prince Abubakar Audu as duly elected.
- That INEC ought to have applied the provision of section 181(1) of the constitution that entitled him to be sworn in as Governor, following the demise of Prince Audu.
It is compelling here to note that INEC, against who allegations in the petition were made, called no witness to proffer evidence in rebuttal or denial of the facts stated by the petitioner. The commission also never controverted nor contradicted the petitioner’s evidence. The position of the law is clear in such a circumstance. The petitioner would be entitled to judgment, the effect being that, INEC’s averments in its reply would be deemed to have been abandoned while the petitioner’s averments deemed admitted. (See: section 132 of the Evidence Act and Ndayako v. Dantoro) (2004).
Essentially, the issue as to whether or not the election of November 21, 2015 was conclusive was the fundamental point the tribunal was called upon to determine. The way the tribunal resolved this crucial issue is, however, shocking. It simply held that:
“There is no evidence before the tribunal that the said election was concluded… The implication of the election of 21/11/2015 being declared inconclusive by the 1st Respondent is that no declaration nor return was made as to the winner of that election; hence in the absence of a declaration or return the petitioner remained a deputy governorship candidate in the inconclusive election and no right can be said to have enure to him nor can he benefit from the provisions of section 181(1) of the 1999 constitution which provides for stepping into the shoes of an elected candidate as he claims”.
It is easy to see how the tribunal muddled up issues here. The fact that the judgment was not based upon a sound appreciation of issues and arguments is also manifest. It is also clear that the evidence of the petitioner, particularly, Exhibit P19 (Form EC8Cs) the results of the local government areas never came up for consideration. The tribunal shut its eyes against the undisputable and unassailable evidence of the petitioner. The tribunal avoided section 197 (2) of the constitution like a plague, let alone giving any consideration to its application. It simply jumped to section 181 (1), without any foundation. It is, indeed, most disappointing.
A judgment of court or tribunal, for that matter, ought to demonstrate that the court or tribunal understood the case before it, and elicit an open and full consideration of the issues properly raised by the parties on their pleadings, as supported by evidence. The conclusions reached ought to reflect and justify such an exercise. Once a court or tribunal has misapprehended the nature of the case in respect of which it is required to give a dispassionate and rational decision, the chances are that the decision, otherwise reached will be perverse, as it is in this case. This is because when an adjudicator fails to discern the real question which he or she is to consider and decide or answer, his or her reasoning will inevitably be addressed to collateral matters which are irrelevant, or to an aspect beside the point in issue. Such an adjudicator is said to suffer from “ignoratio elenchi”. This is the fairest assessment of what happened at the Justice Halima Mohammed tribunal. I proceed to consider few of the issues.
LOCUS STANDI.
The tribunal held that the petitioner had no locus standi to institute the petition. In coming to its warped decision, it declared:
“Contrary to the conten tion of the petitioner, the provisions of section 181 and 187 of the 1999 constitution to our mind do not enure to the petitioner. As the petitioner not having presented the petition as a deputy governor-elect within the provisions of section 181 of the constitution cannot be properly defined as a candidate within the meaning of section 137 of the Electoral Act 2010 (as amended) the election being inconclusive”
Still on locus standi, but for another reason, the tribunal held as follows:
“Having analysed as above and the reasoning in the above cases, it is therefore this tribunal’s considered view that the Petitioner who has not been shown to have participated as an aspirant in the primaries of the APC for the choice of a gubernatorial candidate for the 21/11/2015 and 5/12/2015 elections lacks the locus standi to challenge the nomination, sponsorship and substitution of the late gubernatorial candidate of the APC with the 2nd Respondent”.
From a legal standpoint, the tribunal’s stance on locus standi is ludicrous. The petitioner contested the November 21, 2015 election as deputy governorship candidate. Indeed, it is laughable that a candidate who contested an election would be held to lack locus standi to challenge the person wrongly declared winner of the election. Locus standi is no longer an inscrutable concept to be twisted and convoluted as the tribunal did. Locus standi simply means “an interest in a suit” (Inakoju v. Adeleke (2007); Thomas v. Olufosoye (1989). And, it is well known that the 1999 Constitution of the Federal Republic of Nigeria does not require a deputy governorship candidate to undergo process of primaries. He is to be nominated by a governorship candidate as a running mate and associate (Section 187(1) of the Constitution refers). For the tribunal to have imposed an additional burden on the petitioner to acquire locus standi smacks of travesty of justice.
The petitioner’s locus standi is located both in the Constitution and the Electoral Act. First, section 137(1) of the Electoral Act stipulates the persons who may present a petition. They are: (a) a candidate in an election and (b) a political party that participated in the election. Second, the locus standi of a deputy governorship candidate to institute a petition is also clearly established under section 187 of the Constitution, which acknowledges a deputy governor as a candidate in a governorship election,without whom a governorship candidate cannot be duly elected. There was evidence before the tribunal that the petitioner was the associate/deputy governorship candidate in the November 21, 2015 election. Going by the provision of section 187 of the Constitution, two persons must jointly contest a governorship election, one as governorship candidate and the other as deputy governorship candidate. The constitution and all INEC forms recognise and acknowledge both of them as candidates. Indeed, the constitution describes a deputy governorship candidate as “another candidate”. (Section 187 (1) of the constitution refers)
What is more, there are judicial authorities which have affirmed that a deputy governorship candidate has locus standi to present a petition. One of such authorities is Waziri v. Danboyi (1999), where the Court of Appeal unequivocally held that a deputy governorship candidate had locus standi to present the petition in that case. It is curious to note that all the judicial authorities were cited before the tribunal, but the tribunal did not do as little as mentioning them, let alone allowing itself to be guided or bound by them.
Furthermore, logically, the reason why the tribunal stripped the petitioner of locus standi is the very basis upon which his locus rests. He contested an election that he believed was conclusive but which INEC declared inconclusive. He felt aggrieved and approached the tribunal. Good enough, the tribunal affirmed that election tribunal was the proper venue for him to complain but illogically held that because INEC declared the election inconclusive the petitioner cannot complain! INEC is not omnipotent. It is a statutory body which actions and declarations are subject to challenge.
It is also baffling that the tribunal denied the petitioner locus standi because he did not present the petition as a deputy governor-elect. There is no law which says that a petitioner must be declared deputy governor-elect before he has a right to present a petition. It is sufficient in the eyes of the law that he is a candidate in the election. In Sunday v. INEC (2008) the Court of Appeal explained:
Locus standi in election petitions is statutorily defined and leaves no room for hide and seek. Election petitions are sui generis, distinctively from other civil proceedings. The right to present petition under the unique procedure is sensu stricto as provided by the relevant statutes. A petitioner’s locus standi is established by averments in the petition showing prima facie evidence that the petitioner falls within the class of persons entitled to present an election petition. A court or tribunal is therefore bound by the averments in the election petition as the sole source and only avenue for determining the petitioner’s locus standi.
In paragraphs 2, 3, 4, of the petition, the petitioner deposes as follows:
“2.Your petitioner was qualified to vote, and did vote; had a right to contest and did contest for the governorship election of Kogi state, as the Deputy Governorship candidate of the APC at the Kogi State Governorship Election held on 21st November, 2015 on a joint ticket with Prince Abubakar Audu (now deceased).
- Your petitioner was a candidate at the said election pursuant to section 187 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
- By virtue of section 187(1) of the Constitution and section 137 (1) (a) of the Electoral Act, 2010 (as amended) your petitioner has a right to present this petition having contested and participated in the said election on November 21, 2015 Kogi State governorship election.
The pertinent question here is, if in the face of these laws and facts the petitioner is held not to have locus standi, who else has?
ISSUES OF NOMINATION, SPONSORSHIP, SUBSTITUTION, INTRA-PARTY DISPUTE AND PARTY PRIMARIES.
In its bid to arrive at a pre-meditated destination, the tribunal kept veering off from the track by pronouncing on issues relating to nomination and sponsorship of candidates; substitution of candidates, party primaries and intra-party disputes. On a general note, the point must be made here that these issues never arose from the petition. With due respect, the petitioner did not raise issues of sponsorship, nomination or intra-party disputes in his petition. The tribunal was, therefore, without jurisdiction to formulate issues outside his petition. In Ahmed & Anor v. Idris & Ors (2014) the Supreme Court unambiguously stated that it is the case of the plaintiff/petitioner that determines the jurisdiction of the court.
It is elementary law that a tribunal like a court is bound by the claim of the petitioner. The generosity or charity of a tribunal must be confined to the facts in a petition very strictly. The rationale behind this is that it is the petitioner who knows where the shoe pinches him and, therefore, knows the limits of the complaints he brings. It is not for the respondents or tribunal to expand or enlarge the scope for him. The tribunal is supposed to be an unbiased umpire and cannot claim to know more than the petitioner. It is not for the tribunal to embark on a voyage of discovery. The tribunal is not Vasco da Gama, the Portuguese explorer, who discovered the sea route to India. The tribunal is not Christopher Columbus, the Italian explorer, who made four voyages across the Atlantic Ocean and discovered the New World, the Americas, when he landed on an Island in the Bahamas archipelago. Coming nearer home, the tribunal is not Mungo Park, the Scottish explorer, who led the failed expedition to find the source of River Niger. It is the duty of the tribunal to inquire into facts placed before it. The law forbids the tribunal from going outside the petition, in the absence of a cross-petition, in search of more facts with a view to discovering greener pastures for the 2nd respondent (Alhaji Yahaya Bello).
Tagging the petition as intra-party or pre-election matter is the height of ignorance or mischief of the tribunal. It demonstrates the length to which the tribunal went in supporting the case of the respondents and supplanting the case of the petitioner. It also shows how deeply the tribunal misconceived or misunderstood the petitioner’s case. The tribunal overlooked the simple fact that the petition was, essentially, directed at the declaration of the returning officer that the election of November 21, 2015 was inconclusive. No dispute arose and no complaint was lodged against the nomination or sponsorship of the candidates to the election. Indeed, the fact that the APC sponsored both the late Prince Abubakar Audu and the petitioner as candidates at the election is not in dispute.
The complaint of the petitioner against the 2nd respondent was that, apart from the fact that the supplementary election was unconstitutional, the 2nd respondent was not qualified to contest same without a running mate. How the tribunal interpreted that to mean an intra-party dispute is extraordinarily astonishing. And, for the tribunal to have come to the conclusion that the petitioner had no cause of action, in the face of the facts presented before it is remarkably startling and stunning. There is nothing esoteric in the term ‘cause of action’. It simply means a cause of complaint. The Supreme Court, in Afolayan v. Ogunrinde (1990) summarizes what is involved in cause of action: “A dispute in respect of which a court of law is entitled to invoke its judicial powers. It consists of every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to judgment” Certainly, there were facts before the tribunal that called for adjudication. So, the petitioner had a cause of action, contrary to the jaundiced view of the tribunal.
PARTY PRIMARIES.
The hub or gravamen of the decision of the tribunal is based on the fact that, because Alhaji Yahaya Bello participated in the primaries in which he was the runner up, he was the appropriate person to take over from him. In the words of the tribunal:
“…It is the tribunal’s considered view that the 2nd Respondent participated in the APC primaries and was the 1st runner-up as shown in exhibit R2(8) to the late Prince Audu, the gubernatorial candidate of APC, participated in the 5th December 2015 election, and not having been disqualified by the conditions as stated above to contest the said election, it naturally follows that on the exigency of death of gubernatorial candidate of the party, the party’s 1st runner-up in its primaries in the person of the 2nd Respondent will be an appropriate choice of candidate to substitute its deceased candidate in the circumstances, more so when APC was invited by INEC to substitute its candidate” (underlining mine).
The first remark to make here is that the decision of the tribunal on this point is not based on law or any section of the constitution but nature. Apparently, the tribunal is unmindful of the purpose and scope of political party primary elections. A primary election is not valid for all purposes and at all times. It is circumscribed in scope and purpose. The Supreme Court was categorical on this point when it held in CPC v. Ombugadu (2012) that “the sole purpose of a party’s primary election is the emergence of one of the contestants as the party’s candidate at the election”. It follows that once the primary election has produced a candidate, its purpose is served. There is no law, or any section of the constitution for that matter, that permits any political party to revert back to the result of a primary election to pick “a first runner-up” for a supplementary election. As a writer once put it, “it is jurisprudentially unthinkable that a primary election would be made to produce two candidates at different times”. The truth is that, while political parties are allowed to substitute their candidates, this right is only exercisable before the commencement of an election. Aspirants who flunked at primaries are dropped and remain so.
NON-JOINER Of APC
The tribunal turned the law upside down when it held that the failure of the petitioner to join APC was fatal to the petition. In coming to the decision, it rationalized that the presence of the party “will assist this tribunal in effectively and effectually determining the dispute between the petitioner and the 2nd respondent.” The tribunal relied on Green v Green (1987). But the decision of the Supreme Court in Green v Green (Supra) is quite distinguishable from the petitioner’s case. One distinguishing feature between the two cases is that Green v. Green (Supra) is not an election petition. It has been said times without number that election petitions are sui generis, bearing their peculiar characteristics, very much unlike ordinary civil or criminal proceedings. (Onnoghen, JSC in Hassan v. Aliyu, 2010). One of the peculiar characteristics of election petition is that the parties that constitute them (petitioners and respondents) are statutorily prescribed. Section 137 (2) of the Electoral Act, 2010 (as amended) prescribes who the respondent in an election tribunal shall be. It stipulates:
Section 137 (2):
A person whose election is complained of is, in this Act, referred to as the respondent.
By this provision, the only statutory respondent that is required to make an election petition properly constituted is the “person whose election is complained of.” A petitioner is neither obliged nor obligated under section 137 of the Electoral Act 2010 (as amended) to make a political party a respondent as the law does not consider it a necessary party. In Bello & Anor v. Mohammed & Ors (2008), the Court of Appeal stated that: [t]here is no authority for the proposition that a victorious political party whose candidate was successful at an election is a statutory or necessary respondent. By operation of law, the Tribunal was right to have struck out the PDP from the petition in its judgment”. The Supreme Court in Buhari v. Yusuf (2003 held that political parties are not necessary parties to an election petition. Also, the Court of Appeal in Ngige v. Obi (2006), held that it is not necessary to join a party when no complaint is made about it.
The pronouncement of the Supreme Court in Buhari & Anor v. Yusuf & Anor (supra) is instructive. The apex court said:
“It is manifest that Section 133 of the Act places no obligation on a petitioner (s) to make any candidate who lost an election, or any political party, whether of a candidate elected or returned or a candidate who lost or which may not have fielded any candidate for the particular seat, a respondent other than the statutory respondent envisaged under subsection (2) as identified in this judgment. As a matter of strict adherence to procedure, all such persons or political parties can neither be respondents nor are they necessary parties.” (Uwaifor JSC)
From the foregoing, it is clear that it is now a matter well established that the petitioner is not bound to join the APC as respondent. In any event, under cross-examination, the petitioner explained that it was not necessary for him to join APC that sponsored him for the November 21, 2015 election as he had no relief against the party.
One can go on and on highlighting and analyzing the bizarre, farcical and incongruous judgment of Justice Halima Mohammed tribunal without end. Before I am done, let me quickly bring out one of the many outlandish conclusions of the Tribunal. The Tribunal held that there was no satisfactory evidence produced by the petitioner to show that the election was conclusive. The tribunal came to this conclusion because:
“…the petitioner having not scored the alleged highest votes and ¼ votes cast in all the local government (sic) of Kogi state cannot be legally correct since there are available facts to show that the election was declared inconclusive…..” P. 147
The farcical reasoning of the exceedingly biased tribunal is that the petitioner could not have won majority of lawful votes and ¼ of all the votes cast in all the local government areas of Kogi State. Apparently, the tribunal was referring to the provision of section 179 (2) of the Constitution. But then what the tribunal stated is not what is contained in that section. The relevant section of the constitution specifies two conditions to be satisfied in order to deem a candidate as duly elected. They are (i) scoring the highest number of votes where there are two or more candidates and (ii) having ¼ of all the votes cast in 2/3 of the local governments of the State and not in all local governments as stated by the tribunal. In any event, Audu/Faleke ticket won ¼ of all the votes cast in all the local government areas in Kogi State.
The tribunal stated that there was no satisfactory evidence produced to prove this. Nothing can be further from the truth. Exhibit P19 that contained all the results of the local government areas was before the court. For reasons best known to the tribunal, it refused to look at it. Since it did not look at the said document, it certainly does not lie in the mouth of the tribunal to say that there was no satisfactory evidence produced by the petitioner. Interestingly, the same tribunal had earlier quoted the pronouncement of the Supreme Court affirming the authenticity of results declared by a returning officer. The tribunal quoted the Supreme Court thus:
“It is trite that there is a rebuttable presumption that any election result declared by a returning officer is authentic and correct and the burden of rebutting that presumption is on the person who is challenging it. See the case of NGIGE V. INEC (2015) 1 NWLR (PT. 1440)317 318 paras H-A ABUBAKAR V. YAR’ADUA (2008) 18 NWLR 9pt. 1120)1.
The pertinent and germane question here is, why did the tribunal not hold the results of the Kogi State Governorship election held in November, 2015 that were presented before it sacrosanct, authentic and correct as required by law, in the absence of any rebuttable evidence?
Finally, if there was ever a petition devoid of understanding, proper consideration, dispassionate and rational reasoning and conclusions, the case under consideration is one. The facts presented before the tribunal now cry to high heavens for justice!
– Bimbo Adewole is a legal practitioner
