Elections 2007 - Contradictions Between Tribunals And Appeal Tribunals July 19, 2008 | posted by Mobolaji Aluko (Archives)

 

GUARDIAN

 

Saturday, July 19, 2008              

Elections: Contradictions Between Tribunals And Appeal Tribunals
By Godwin Ijediogor

PUT on a scale, judgments from the various election tribunals and appeal tribunals have been a mix bag of sort. Above all, it has been marked by contradictions between the lower and appellate tribunals. Winners, no matter how hard or 'soft' earned their victories, went home clapping with both hands and legs and praising the Judiciary to high heavens. But losers, either rightly or wrongly, are left to heal their dripping political bruises, as they shout blue murder against the judicial process. In any case, the higher and appellate court is supposed to right where wrongs had been done at the lower court. But the current trend, some, especially losing litigants, fear, is the reverse in some cases, as they accuse the appellate court of being the black sheep of the judiciary.

IT has been different stories and mood in the aftermath of judgments for different election petitioners and appellants at the various state Election Petition Tribunals and divisions of the Court of Appeal.

For those on the losing side at whatever level, most soon become political orphans. But for winners, they gather more, even unsolicited, supporters and followership.

 

BENUE STATE

THE Benue State Election Petition tribunal is one that was bedeviled from inception by internal disagreements among members, particularly between its former chairman, Justice Ibrahim Bukar, on one hand and his colleagues on the other and it was no surprise that he was later replaced. It is obvious that that ultimately affected its judgments.

A lawyer and former vice chairman of the Makurdi branch of the Nigeria Bar Association (NBA), Mr. Jibrin Okutepa had accused the tribunal of relying on sentiments in arriving at its judgments rather than on the point of law. He told The Guardian then that he would not be surprised if the judgments of the tribunal are finally reversed at the higher court.

Even Governor Gabriel Suswam the reversal of the tribunal's judgments was enough indication that something was fundamentally wrong with it. And last Tuesday's ruling of the Court of Appeal judgment quashing the nullification of the election of Senate President David Mark to represent Benue South district appears to have vindicated them.

Like the case of Mark, the same appeal court had earlier quashed the nullification by the tribunal of the elections of former governor of Benue State (now a senator), George Akume. The same for Mr. Terseer Tsumba, Speaker of the state House of Assembly, Mr. Terkaa Mamwoo, representing Logo State Constituency in the House and Mr. Terngu Tsegba, Speaker Pro-tempore of the House of Representatives during the stalemate that consumed its former Speaker, Mrs. Patricia Etteh.

So it was not surprising that Mark's election was upheld by the court, rather, it would have been interpreted as injustice if it had not. The main contention was the cancellation of the results of Agatu and Okpokwu councils.

While the tribunal, in nullifying Mark's election, acknowledged the returning officer's cancellation of results from the two councils on the basis of irregularities and order fresh poll in the two councils before a winner could emerge, the appeal tribunal ruled that, "where an election has been concluded as in the instant appeal... such a result cannot be cancelled or invalidated by anybody."

Unlike the tribunal, it upheld Mark and the Independent National Electoral Commission (INEC's) submission that the said returning officer lacked the power and authority to do so without consultation and advice from the headquarters.

According to it: "The returning officer at the top of the electoral pyramid lacked the power to cancel the election. Section 69 of the Electoral Act 2006, which says that, 'declaration of scores of candidates and the return of a candidate shall be final subject to review by a tribunal or court in an election petition proceedings under this Act,' does not confer such power on him."

Justice Bulkachuwa ruled that the lower tribunal was, therefore, wrong to have held that he had such powers.

On the basis of the foregoing, the court said Mark's appeal had merits and allowed it. "The decision of the lower tribunal, which was given on February 28, is hereby set aside. The return of the appellant as senator representing Benue State South Senatorial District is hereby affirmed," it ruled.

On the flip side, the same court panel presided over by Justice Zainab Bulkachuwa dismissed the case of the African Democratic Congress (ADC) senatorial candidate, Mrs. Eileen Dali against the election of Senator Jubril Aminu of the Peoples Democratic Party (PDP) on the premise that the party had withdrawn the case, even when its National Chairman, Chief Okey Nwosu had intimated the court in writing that it had not.

 

SOKOTO STATE

THE case between Governor Aliyu Magatarkada Wamakko of the PDP and Democratic Peoples Party's (DPP) Alhaji Maigari Dingyadi presents another point of contradiction.

The Court of Appeal sitting in Kaduna on April 11 voided the April 14, last year election of Wamakko on the grounds of "substantial irregularities and non-qualification" and ordered the INEC to conduct fresh election within 90 days. Wamakko predictably, won that re-run.

This was against the lower tribunal's ruling dismissing Dingyadi's petition that Wamakko was not qualified to contest in the election, having crossed to the PDP from the All Nigerian Peoples Party (ANNP) less than the 60 days required by the constitution of PDP to qualify him for the election.

The lower tribunal had discountenanced this and dismissed Dingyadi's petition for lacking merit. But Justice Belgore, who read the unanimous judgment, held that Wamakko's candidacy for the polls was improper and in clear breach of Section 187(1) of the 1999 Constitution.

He ruled that Wamakko's letter of resignation from ANPP was submitted to the PDP seven days after his nomination by the party, an action it said contravened Section 38 of the 2006 Electoral Act.

It accused Wamakko of engaging in "multiple nomination," noting that one Senator Bello Gada ought to have run with Wamakko and regretted that INEC returned Wamakko as governor with Mukhtar Shagari as his deputy.

In addition, it observed that the waiver sought by Wamakko from PDP for qualification to run did not follow due process and procedure, as the PDP constitution stipulated that such a waiver for a member that had not spent up to 60 days and wished to run for a political office ought to be applied for on behalf of the member by the state chapter of the party to its national secretariat.

"The judgment delivered by the lower tribunal is hereby set aside and the governorship election of April 14, 2007 is hereby annulled. INEC is hereby ordered to conduct a fresh election within 90 days," it ruled.

 

KEBBI STATE

THE same court also reversed last year's nullification of the election of Governor Usman Dakingari of Kebbi State by the state Election Petitions Tribunal, which bore a lot of semblance with the Sokoto governor's case.

Unlike the unanimous removal of Wamakko, the reinstatement of Dakingari was a majority decision of three to one.

Justice Bulkachuwa, while upholding Dakingari's election, ruled that he was qualified to contest in the poll, saying there was no established case of double sponsorship of Dakingari, as claimed by the respondents, adding that by the provision of Section 177 of the constitution, it was clear that Dakingari was a member of a political party, which duly sponsored him for the election.

DPP candidate in the election, Alhaji Abubakar Malam, had prayed the appeal tribunal to declare him the winner, following the nullification of the governor's election by the lower tribunal, which

on October 20 last year ruled that Dakingari, a son-in-law of President Umaru Yar'Adua was not qualified to run as a candidate for the ruling PDP because he was not a member when it nominated him.

He had defected from the ANPP with his mentor and godfather, former governor, (now a senator, Alhaji Adamu Aliero a few weeks before the elections and was nominated by the PDP after it had disqualified its original candidate.

"The first respondent (Dakingari) was illegally placed on the ballot paper," Justice Aodover Kakaan ruled, and ordered a fresh election.

 

BAYELSA STATE

THE April 14, last year election of Governor Timipre Sylva of Bayelsa State was on April 16 nullified by the Court of Appeal sitting in Port Harcourt, the Rivers state capital, contrary to the judgment of the lower tribunal and upheld Amgbare/AC's appeal and ordered fresh poll.

The tribunal had on November 5 last year dismissed Prince Timi Amgbare/AC's petition on all counts for inability to substantiate that there was no governorship election in the state on April 14, last year, thereby upholding Sylva's election.

The appeal court hinged its judgment on what it termed clear evidence that there was no election in Bayelsa, as argued by Amgbare and AC. It described Form EC8A as the most important electoral material in an election but said this was conspicuously missing in the materials tendered as evidence to prove that the election actually took place. Justice Ibiyeye said the missing document was too weighty to be ignored in the case.

Amgbare had in his petition called for fresh election in the state, citing some electoral irregularities, including insufficient ballot papers, hijacking of electoral materials in some local councils and disparity between voters' registers and votes cast.

But Sylva and PDP countered and prayed the tribunal to dismiss the petition, insisting that the election was actually held in the state.

At the end, chairman of the tribunal, Justice Haliru Abubakar ruled all issues raised by the petitioner in his application could not be substantiated.

 

CROSS RIVER STATE

LITTLE attention was paid to the case involving former Cross River State governor Liyel Imoke until the appeal tribunal in Calabar upturned his election and upheld the appeal of the AC candidate against the lower tribunal ruling, dismissing his petition against the former Minister of Power and Steel's election in the April 14, last year election.

The nullification and setting aside of the lower court judgment was based on non-compliance with the 2006 Electoral Act and gross irregularities during the poll.

Justice Suleiman Galadima, in the judgment, cited anomalies such as allocation of scores and non-presentation of result sheets at the polling booths. He also said the petitioners were not given a fair hearing by the lower court.

The ANPP's candidate in the state, Paul Ukpo, Progressive Peoples Alliance's (PPA) Iheke Awah, African Renaissance Party's (ARP) James Ebri, and the AC had challenged Imoke's victory at the tribunal, which on January 23 affirmed the former governor's election in its judgment dismissing the petition of the five parties seeking to quash the outcome of the election on the grounds that the petitioners were not able to prove their case.

Ukpo proceeded to the Appeal Court, insisting that there was no election in the state and cited non-compliance with the Electoral Act of 2006.

 

ENUGU STATE

THE election of PDP's Governor Sullivan Chime of Enugu State was nullified by the election tribunal on January 19, barely 48 hours after he collapsed while laying a wreath to mark this year's Armed Forces Remembrance Day.

Justice Samuel Otta, who read the judgment, upheld that the candidates of DPP, Oscar Egwuonwu; Labour Party (LP), Chief Okey Ezea; and Dubem Onyia of AC proved that the conduct of the election in the state did not conform with the provisions of the Electoral Act 2006.

But in a unanimous judgment read by Justice Olufunmilayo Adekeye, the Court of Appeal, Enugu Division, on Friday, July 18 upturned the lower court's judgment and revalidated Chime's election.

The five-member appeal tribunal had earlier dismissed an appeal brought by another contestant, Mr. Ugochukwu Agballah, wanting the court to declare him winner, based on the valid votes he allegedly secured in the election.

The lower tribunal averred that there were enough evidences to show substantial irregularities, acts of non-compliance and non-voting by the majority of the electorates.

It stated its conviction by the evidences given by the 17 witnesses from the 17 local councils of the state who testified for the DPP candidate that materials for the elections did not arrive in time to allow for any voting and held that the election was not conducted substantially in compliance with the provisions of the Electoral Act 2006. It found merit in the petition and granted the petitioners' prayers.

But the higher court judges held that it is the responsibility of the petitioner(s) to prove that there were irregularities in the said election, which she stated were not caused by Chime, she added were not enough proof to nullify the election.

 

DELTA STATE

THE election tribunal in Delta State has been mired in controversy from the first governorship case. A simple matter of exclusion from the April 14, last year governorship election was mishandled by the tribunal. Its handling of AC' Peter Okocha and DPP's Great Ogboru's petitions had been anything but encouraging.

In August last year, the Justice Ayobode-Lokulo Sodipe-led Delta State Election Petition Tribunal ruled that disqualified AC candidate in the elections, Mr. Peter Okocha had the locus standi to be at the tribunal to challenge his exclusion from the said election that produced Governor Emmanuel Uduaghan. This followed INEC's insistence that he had no legal right to challenge the election, because he did not participate.

But the Benin Division of the Court of Appeal, returned the case to the tribunal for re-trial, saying Okocha's petition had merit. That has not being, especially as Justice Sodipe had been elevated to the higher court.

The delay in the constitution of an appeal tribunal to hear a simple case of INEC's unlawful exclusion of Okocha from the election by the President of the Court of appeal, Justice Umaru Abdullahi remains curious, especially for.

 

OGUN STATE

THE petition of Senator Ibikunle Amosun of the ANPP against the election of Governor Gbenga Daniel of Ogun State is one that has witnessed a contradiction between the Court of Appeal sitting in Ibadan, Oyo State and the Ogun State Election Petition Tribunal in Abeokuta.

Amosun's petition was thrown out by the tribunal on the technical grounds that he lacked the locus standi to file the petition, having failed to state in his petition on which party's platform he contested the election.

But the appellate court set aside the lower court's judgment and returned Amosun's petition to the tribunal for re-trial, saying it should be heard on its merit.

While the tribunal also upheld the arguments of Daniel that the petition was defective, following Amosun's claim that he was a voter and a candidate in the governorship election, saying the dual capacity was confusing, the higher counterpart after a consolidated hearing on February 21, in the lead judgment read by Justice J. B. Akaahs, ruled that said the supposed confusion in the identity of Amosun, as related to his petition, "only existed in the imagination of the tribunal members."

While dismissing Daniel's interlocutory appeal, Justice Akaahs held that since it had been established that there was no criminal collusion between court officials and Amosun, the appellant could not be punished for the non-issuance of receipt when payment was made.

As for the ANPP candidate's main appeal, Justice Akaahs said he had satisfied the provisions of Section 177 of the 1999 Constitution and Section 4 (1a and 1b) of the First Schedule of the Electoral Act, 2006 to prove that he was a candidate in the election.

He stated that the main issue for determination was whether the petitioner had locus standi to file the petition.

In a unanimous decision delivered on March 13, the five-member panel tribunal held the appeal filed by Amosun was meritorious and ordered the tribunal to hear the petition on its merit.

Daniel's interlocutory appeal, challenging the July 16, last year decision of the tribunal that allowed the amendment of Amosun's petition was also dismissed.

Back at the tribunal, Amosun, fearing bias of the judges in the case, called for a fresh tribunal to hear his petition, and since then, it has been a ding-dong affair regarding the matter.