Kogi Guber: Has PDP Any Candidate?

As we approach the November16, 2019 Kogi State Gubernatorial Elections, it is now clear to keen watchers of politics in Kogi State that the election is clearly a two horse race between the candidate of the All Progressives Congress (APC) Alhaji Yahaya Bello the current Governor of Kogi State and the candidate of the People’s Democratic Party (PDP) Engr. Musa Atayi Wada. While the APC and its candidate, Alhaji Yahaya Bello appear to have gotten their acts right in terms of preparation for the election including the issues of qualification, primary elections, management of the outcome of the primary elections, and post primary election issues, same cannot be said of both the PDP and its candidate who appear to be enmeshed in major scandals and crisis right from the primary elections to post-election matters. The write up addresses the above topic from the viewpoint of legal challenges which portend doom for the PDP and its candidate possibly before or after the election of 16^th November 2019.

SUIT No. HCL/38/2019: ABUBAKAR MOHAMMED IBRAHIM V. (1) PEOPLES DEMOCRATIC PARTY (PDP) (2) ENGR WADA MUSA (3) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

The above captioned suit was filed at the High Court of Justice, Kogi State by Abubakar Mohammed Ibrahim, an Aspirant who contested the PDP primary elections held on 3^rd and 4^th of September 2019 to be the flagbearer of the PDP in the upcoming November 2019 Kogi State Gubernatorial elections in Kogi State. He claims that during the conduct of the primary elections  and while the election was at the stage of sorting of ballots, gunmen, numbering about 10 invaded the venue shooting at the venue and disrupting the exercise. He stated that everyone ran for dear lives abandoning the ballots and the entire exercise. That at about 2 pm on the 4^th day of September 2019 he received a notice for the completion of the election exercise at  Rock Garden Guest House/Hotel Lokoja. That the Committee led by Rt. Hon Fintiri assured the Aspirants, delegates and their agents that all ballots used in the election were retrieved and secured and that on this basis they consented that the exercise which only remained sorting, counting and declaration continue. That he was however shocked when the Chairman of the Committee at the new venue asked if any of the Agents had any Ballots with them and if so, they should bring them forward for addition and collation. That based on the foregoing, Engr Musa Wada informed the Committee that his Agent retrieved some ballots and was asked by the Committee to bring in same from his car which were added to 148 ballots already counted for Engr. Wada. That all the 600 ballots received from Engr Musa Wada were all thumb printed in favour of Engr. Musa Wada and were included and counted amongst his votes despite protests by the Claimant and the Agent of Senator Dino Melaye. That it was these mysterious 600 ballots/votes that were added to the 148 votes retrieved by the Committee that was used in declaring Engr. Wada Musa as the winner of the elections. That it was only in respect of Engr. Wada Musa thatretrieved ballots were received from a candidate and or his agent. He claims that looking at the lawful votes cast and already in the custody of the Committee, he scored the highest lawful votes (despite the 274 missing votes) cast at the election which is 710.Finally, he claims that though he appealed the result of the primary elections as provided in the guidelines for the election, the PDP Appeal Panel did not consider the appeal or invite him to ventilate his grievances till date.

Based on the foregoing, the Claimant claims10 declaratory and injunctive reliefs all geared towards declaring him as Winner of the primaries of 3^rd September 2019, nullifying the return of Engr Musa Wada’s  as winner of the election, and forwarding of the Claimant’s name to INEC as the Candidate of the PDP in the November 16^th 2019 elections in Kogi State.

The Defendants have since filed their responses to the suit and the matter is now at the stage of Defense, the Claimant having closed his case after testifying and tendering documents in support of his suit. While the matter has now been adjourned to 27^th November 2019, it does not affect the potency of the suit which could still have a devastating effect for Engr. Musa Wada, the PDP and also the Claimant even after the elections have been conducted and should the PDP win the elections. This is so because, should the PDP win the November 16th contest and the Court finds in favour of Abubakar Idris, he will be substituted for Engr, Musa Wada, the victory would however not mean much if the PDP lose the election to the APC except for the right to substitute Engr Musa Wada at the Election Petition Tribunal if parties approach one.

OPINION

Having reviewed the processes filed in the matter together with the evidences tendered so far, it is clear that the Claimant has a probable chance of success albeit that the trial has now thrown up evidence that is damning to both the Claimant and the Defendants as to the inconclusiveness of the PDP primary elections. It is pertinent to note that some portions of the INEC report/INEC/EPMC/08 Form on the conduct of the election stated that the election was not generally acceptable to the parties due to its inconclusiveness at the initial venue of the election. The Court has also been provided with evidence which shows the retrieval of Ballot Papers from agents of aspirants at the second venue even after the Panel Chairman had stated that they personallyretrieved all the ballot papers used for the election after the disruptions; and changing of the venue of collation, sorting, counting and announcement of results during the election process etc..

The aggregation of the emerging evidence stated abovemay present a scenario where the Court finds that the Claimant could also not be said to be the winner of the primary elections as the entire process of the elections had been compromised, flawed and marred or jeopardized by the events of 4^th September 2019 which events led to (a) arbitrary allocation of votes to parties including the Claimant (b) retrieval of ballot papers from agent(s) of candidates (c) retrieval of ballot papers from the venue of an election after abandoning same in an unsecure venue for hours (d) changing of the venue of the collation, sorting, counting and announcement of results etc.

The Court may therefore on the above basis refuse the prayers asking the Claimant to be declared as winner of the primary election while however also on the same basis granting the prayers nullifying the declaration and return of Engr. Wada as winner of the elections and other injunctive reliefs related thereto.The foregoing conclusions can conveniently be reached by the Court in the light of the averments in paragraphs 17(b), 17(c), 19 to 34, and 36 to 42 and the cogent evidence already supplied in proof of those averments.In the case of the foregoing findings by the Court, the Court is empowered to grant reliefs 2, 4, 5, 6, 8, and 10 respectively of the Claimant while consequently nullifying the primary elections held on 3^rd and 4^th September 2019 same having been marred by irregularities, undue allocation of votes, etc.

The catastrophic consequence for the PDP, Engr Wada Musa and Abubakar Idris is that an order of conduct of fresh primary election which would have been the most appropriate consequential order after the nullification would no longer be available to the Court or the parties as this would have been overtaken by the events of the conduct of the general election.

The question may arise, viz, whether the Court could validly nullify the primaries, the Claimant having not prayed for same. It is respectfully submitted the Court has inherent powers to grant any order or orders where the justice of the case so demands (such as in this case where the Court finds that the election did not live up to the standard prescribed by Section 87(4) b of the Electoral Act 2010 (as amended)).More specifically, Order 55 (1) of the Kogi State High Court (Civil Procedure) Rules 2006 empowers the Court to in all cases make any order which the Court considers necessary for doing justice whether the order has been expressly asked for by the person entitled to the benefit of the order or not. See also the Supreme Court cases of: Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550, Alhaji Mohammed Layinka & Ors v. Alhaji Baba Agba Gegele (1993) LPELR-1769(SC).

From all the foregoing, it is opined that the High Court in the instant case may grant some of the declaratory and injunctive reliefs prayed and also by way of consequential orders or other orders nullify the PDP primary elections which held on 3^rd and 4^th of September 2019 in Lokoja-Kogi State.It is believed that the PDP foresaw this possibility before the last adjourned date and immediately deployed delay tactics to push the conclusion of trial till after the elections to avoid any embarrassing situation before the election.

SUIT NO. FHC/ABJ/CS/1147/2019 FEMI JOSEPH V. (1) PEOPLE’S DEMOCRATIC PARTY (PDP) (2) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (3) ENGR MUSA WADA.

This suit was instituted vide an Originating Summons filed by the Plaintiff at the Federal High Court Abuja on 27^th September 2019 just after the publication of Forms CF001 (Particulars of persons seeking election to office) of all candidates of by INEC in Kogi State. The Claimant by virtue of Section 31(5) & (6) of the Electoral Act, 2010 (As amended) claims that he reasonably believes that the information supplied by the PDP Candidate, Musa Atayi Wada both in his Form CF001 and the attached First School Leaving Certificate as to his primary school education were false. He therefore prayed the Court to determine that the information was indeed false and, on that basis, disqualify the Plaintiff from contesting as the candidate of the PDP in the upcoming November 16^th, 2019 gubernatorial elections.

While the PDP as a Party has responded to the said suit, Engr Musa Wada has not responded to same.

OPINION

Having reviewed the documents filed by the Plaintiff and the attached documents, it is respectfully submitted that the case is a strong one with a real likelihood of success based on the particulars of fraud/false information provided by the Plaintiff together with the documents attached. While the Plaintiff is yet to file his response to the originating summons, rumour has it that the allegation is indeed true and accounts for why why Engr Musa Wada is finding it difficult to deliver his response in the suit even when the time within which to do so as ordered by the Court has expired. It is was also gathered that more revelations and documents are still surfacing which conclusively proves that Engr. Musa Wada’s Primary School Certificate is fake. Indeed, a quick perusal of the Primary School Certificate show that the Wada’s signature on the document obtained in 1975 is the same as his current adult signature which is appended on his form CF001. The serial number has also been discovered as belonging to another class of Certificates and not that of Engr. Musa Wada’s class. The Plaintiff in the Affidavit in support of the Originating Summons provided more particulars, evidencing his reasonable doubt that Engr. Wada supplied false information as to his primary education.

While the matter has now been adjourned to the 20^thday of November 2019 for hearing, it is believed that the matter still portends doom for the PDP and Engr Wada who faces disqualification whetherit wins the election or not. Where the Court disqualifies Engr Wada even after the elections, PDP/Engr Wada’s locus/right to challenge the election at the tribunal becomes shaky as they ought not to have participated in the election in the first place. Secondly it gives the chance to the wining party to cross petition based on his non-qualification to contest the election.

FHC/ABJ/CS/1078/2019: ABRAHAM JOHN V. (1) PEOPLES DEMOCRATIC PARTY (PDP) (2) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (3) ENGR. MUSA WADA.

The suit was instituted vide an originating summons filed on 17^th September 2019 at the Federal High Court, Abuja. Ironically, the suit was filed by the Vice Chairman of the People’s Democratic Party (PDP) at Ogugu Ward III in Olamaboro, Kogi State, Mr. Abraham John. The aggrieved Vice Chairman who was a delegate at the election is challenging the legality of the PDP Governorship Primary Election which held on the 3rd and 4th day of September, 2019, as being premised on invalid, null and void statutory Notices issued to INEC by the PDP i.e.less that the minimum 21 days and/or 7 days respectively, required by the Electoral Act, 2010 (As Amended) and INEC Guidelines and Regulations for Political Parties, 2013.He also alleges that the Notice rescheduling the Governorship Primary Election for the purposes of completing the Primaries, dated the 4th day of September, 2019, at a different venue, ought to have been issued not less than 7 days within which the rescheduled Governorship Primary Election was meant to hold. He is also aggrieved that the party did not conduct the rescheduled primary at the venue contained in the Notice rescheduling same but conducted same at an entirely different venue from that communicated to INEC, Aspirants and Delegates.

Based on all the above the Plaintiff invites the Court to determine questions as to the legality of those notices and the actions of the PDP in relation to the conduct of the primaries. He finally prays the Court amongst other reliefs for an order nullifying the PDP primary election of 3^rd and 4^th September 2019. The matter is now adjourned to 20^th November2019 for hearing.

OPINION

Section 85 of the Electoral Act 2010(as amended) specifically states that political parties shall give INEC at least 21 days’ notice prior to nomination of candidates. The Appellate Courts have held that this notice is a condition precedent to the nomination of candidates by political parties which must strictly be complied with. In the case of the PDP, its Notice of Primaries even by the admission of the PDP on its Notice of Change of venue dated 4^th September 2019 show that their Notice of Primary election was dated 15^th August 2019, a period less than the 21 days to the date of conduct of primary elections. In the same vein, the Notice of Change of Venue/Date of election of the PDP clearly violates the provisions of INEC Guidelines and Regulations for Political Parties, 2013 which stipulates that any such notice shall be served on INEC, 7 days before the stipulated date of the election. The Supreme Court has also held that Guidelines made by INEC pursuant to the Electoral Act is subsidiary legislation which carries equal force of law as the Electoral Act and therefore must be obeyed. PDP’s case is made worse by INEC’s admission that the Notice of Primary Election/Venue was issued on the 15^thAugust2019 and that the rescheduled election held at another venue different from that on the Notice.

This suit which has been adjourned to 20^th November 2019 remains a headache for the PDP and its Candidate whose primary election is liable to be nullified in the light of the infractions of the Electoral Act, 2010 (as amended).

FHC/ABJ/CS/1375/19: HONOURABLE SUNDAY JOSHUA EHIMONI V. (1) PEOPLES DEMOCRATIC PARTY (PDP) (2) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (3) ENGR. MUSA WADA

The suit was commenced by way of Originating Summons filed on 12^thNovember 2019. The Plaintiff prays the Court for the determination of the following questions, viz:

1. Whether in the light of 3^rd Defendant’s Medical Records which emanated from the Federal Neuro-Psychiatric Hospital, Yaba Lagos State, the 3^rd Defendant ought not to be declared a lunatic and /or a person of unsound mind.

2. Whether by virtue of Sections 182(1) (c) & (2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the 3rd Defendant is qualified for election to the office of Governor of Kogi State.

3. Whether having regard to the provisions of Sections 31 (2), (5) and (6) of the Electoral Act, 2010 (As Amended), Sections 182 (1) (c) & (2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), vis-a-vis 3rd Defendant’s INEC FORM CFOO1, submitted to the 2nd Defendant by the 1st and 3rd Defendants, particularly Part “B”, Article “E” Question “1”, the 3rd Defendant has not provided false information regarding his mental health and therefore liable to be disqualified from contesting the Kogi State Governorship election scheduled for the 16th day of November, 2019.

Upon the determination of these questions, the Plaintiff seeks amongst other reliefs, the following reliefs:-

1. that the 3rd Defendant is of unsound mind in view of the 3rd Defendant’s Medical Records which emanated from the Federal Neuro – Psychiatric Hospital, Yaba, Lagos State.
2. that by virtue of Sections 182 (1) (c) & (2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), the 3rd Defendant been a person of unsound mind is not qualified for election to the office of Governor of Kogi State.
3. that the 3rd Defendant’s INEC FORM CFOO1 submitted to the 2nd Defendant by the 1st and 3rd Defendants, particularly Part “B”, Article “E” Question “1”, contains false information regarding the mental health of the 3rd Defendant.
4. that having regard to the provisions of Sections 31 (2), (5) and (6) of the Electoral Act, 2010(As Amended), Sections 182 (1) (c) & (2) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), vis-a-vis 3rd Defendant’s INEC FORM CFOO1, submitted to the 2nd Defendant by the 1st and 3rd Defendants, particularly Part “B”, Article “E” Question “1”, the 3rd Defendant has provided false information regarding his mental health and therefore liable to be disqualified from contesting the Kogi State Governorship election scheduled for the 16th day of November, 2019.
5. disqualifying the 3rd Defendant for election to the office of Governor of Kogi State scheduled for the 16th day of November, 2019, for submitting to the 2nd Defendant false information regarding the 3rd Defendant’s mental health in INEC FORM CFOO1 particularly Part “B”, Article “E” Question “1.

OPINION

A comparison of the details of the Engr. Musa Wada including Age with those contained on the Medical Records obtained from the Federal Neuro-Psychiatric Hospital, show that the records are those of the PDP candidate. From the questions submitted for determination, the Exhibits attached to the Affidavit in support of the Originating Summonsand the reliefs sought by the Plaintiff, the suit presents yet another headache for the PDP and its candidate as it is meritorious and may be very damning for the PDP and its candidate.Should the Court find that Engr. Musa Wada based on the Medical Report ought to be declared as being of unsound mind, he stands disqualified from contesting the election either before or after the election.

WHETHER IN THE LIGHT OF THE HURDLES PRESENTED BY THESE CASES, THE PDP CAN BE SAID TO HAVE A CANDIDATE IN THE NOVEMBER 16, 2019 GUBERNATORIAL ELECTION.

The debilitating effect of the above cases on the PDP candidate and the party itself in the likely event of success cannot be overemphasized. Indeed, the possibility of the disqualification of the PDP candidate, Engr. Musa Wada and/or the nullification of its primary elections should be of concern to the PDP and the electorates who are campaigning and plan to vote for the PDP and its candidate at the forthcoming election. With the success of the cases stated above, voting for the PDP and its Candidate may at the end of the day amount to an exercise in futility as starkly seen in the case of Zamfara where all of the votes cast for a disqualified candidate were voided and the election given to a party which came a distant second. The possibilities which exist for the PDP and its candidate in view of the success of these cases are summarized as follows:

1. Disqualification of the Candidate due to his allegedly fake primary school certificate.
2. Disqualification based on his alleged declared unsoundness of mind.
3. Nullification of the PDP primaries of 3^rd and 4^th of September 2019 based on the invalid statutory notices of primary election and change of date and venue of primary election issued by the PDP.
4. Nullification of the PDP primaries which was marred by (a) arbitrary allocation of votes to parties(b) retrieval of ballot papers from agent(s) of candidates after almost 8 hours of abortion of sorting of votes (c) retrieval of ballot papers from the venue of an election after abandoning same for several hours.

While some may argue that the debilitating effect of the success of these cases could only be felt before the elections, it must be stated that they hold the same potency or even more painful consequences after the elections as illustrated by the Zamfara Case. These consequences include;

1. Where the PDP wins the election;removal of the Governor-elect, or Governor and swearing in of the Candidate/Party which came second. (Zamfara Case)
2. Where the PDP loses; disqualification of the PDP candidate which would affect the PDP and the Candidate’s locus standi at the election petition tribunal and a ground for the victor’s cross petition.
3. In both scenarios above and in the case challenging Engr. Wada’s sound mind and primary school certificate, permanent disqualification of the Candidate from ever contesting an election.
4. Prosecution of the PDP under Section 31(8) of the Electoral Act 2010 (as amended) for presenting a candidate who is not qualified.

With these, it is hoped that the PDP, its sponsors, members, candidate, supporters and well-wishers in Kogi State will be guided by the impending doom lurking around the corner awaiting them after the elections.

– Michael Aiyembo Esq., a Legal Practitioner, writes from Abuja.