BY; KABIR AKINGBOLU
In the last few days, the media, both electronic and the conventional media have been awash by all sorts of reports and analysis about the recent judgment of the Election Petition Tribunal that nullified the governorship election and return of Alhaji Yusuf Abba as the governor of Kano state. To my mind, I think and believe that this judgment and series of opinion or analysis that followed have all failed to decipher the real position of the law with regard to the major reasons why the Tribunal nullified the election.
As shall be demonstrated anon, the Tribunal lacked jurisdiction to declare the APC candidate in the election as the winner after nullifying certain votes, given the state of our electoral jurisprudence. Before going further, it is pertinent to state that the jurisdiction of any court, including an election petition tribunal, is determined by the statute, a fortiori, an Election Petition Tribunal, whose jurisdiction is not only donated but also circumscribed by the statute, that is, the Electoral Act, 2022 and the 1999 constitution (as amended).
This means that a court of law cannot act outside the statute that established it. See Alhassan V. Ishaku (2017) All RWLR (pt 866) 209 at 297-298, where the Supreme Court held that the jurisdiction of a tribunal is circumscribed and limited in power by the enabling statute or law. Therefore, looking at the major ground or reason given by the tribunal in nullifying 165,673 votes, it will be observed that it was based on the failure of the Presiding Officers of the affected polling units to sign, date and stamp the results issued, according to the tribunal.
Now, the question to ask are: can the mere omission to sign or stamp an election result constitute a ground to nullify same? Assuming it can (which is not conceded) does the tribunal have the jurisdiction to declare APC candidate the winner in the circumstances? It is submitted most humbly that the Tribunal’s order declaring the APC candidate the winner of the election completely turned the law upside down, for undisclosed reasons.
This is because section 60 (1) and (2) of the Electoral Act, 2022, upon which the judgment was based is not sacrosanct. For ease of reference, section 60 (1) and (2) of the electoral Act 2022 provides:
(2) The presiding officer shall, after counting the votes at polling unit, enter the votes scored by each candidates in a form to be prescribed by the commission as the case may be.
(2) The form shall be signed and stamped by presiding officer and counter signed by the candidates or their polling agents where available at the polling units.
It is submitted that non adherence or observance of the above provision cannot render the result of an election invalid because looking at the provision, it commanded two major obligations, namely: The presiding officer shall sign and the candidates or his agents shall sign. Fair enough, but there had been several instances where agents of the candidates were available but refused to sign the results of the election and the court held that it is not mandatory neither did it nullify the results of the election. See Ikpeazu V Otti (2016) 8 NWLR (Pt.1513) at 54.
That being the case, if the failure of an agent to sign an election result is held not sufficient to nullify an election result, it then follows that non signing by the presiding officer or stamping is not fatal, especially given the fact that the presiding officers’ names are subscribed to the foot of every result and that suffices to give it validity. That apart, in Ishola V. Ajiboye (1998) 1 NWLR (Pt. 532) at 71, the court held that similar provision should be interpreted in the same way.
Therefore; the courts overtime having interpreted that the failure of the agents not signing results to be of no moment cannot now hold that non signing and stamping of same by presiding officers is fatal because the two obligations are provided for by same statute and in the same section. How then will the court give two different interpretations to the same provisions? It is impossible.
Moreover, the Electoral Act, 2022 in Section 60 (6) prescribes punishment of N500,000 or six months imprisonment for any presiding officer that fails to comply with the provision of section 60 relating to failure of the presiding officers to sign and stamp the results in the polling units. It follows to reason that since the electoral Act has prescribed a sanction and consequence for the delinquent act, the court or tribunal cannot do otherwise.
It is submitted that if the framers of the law had wanted the results not so signed and stamped to be invalid, they would have so provided expressly in the law. Be it noted, however that Section 60(6) of the Electoral Act, 2022 is an innovation which was not provided for in section 63 of the Electoral Act, 2010 which ended at sub section (4). For emphasis, section 63 (1, 2, 3 and 4) of the Electoral Act, 2010 is ipsissima verba with section 60 (1, 2, 3 and 4) of the 2022 Electoral Act but with the addition of two new subsections, namely sub sections 5 and 6 of the Act.
Being a new innovation, it means that is the remedy provided by law which is punishment and not cancellation that is relevant.
Also, in section 120 of the Electoral Act, 2022, the failure by presiding officers to stamp is also criminalized. And what is more? Section 63(1) and (2) states further that a ballot paper that fails to bear official mark prescribed by the commission shall not be counted but section 63(2) whittled down the extensive provision by giving the officer the latitude to make use of any ballot paper without official mark. For clarity, section 63(2) reads” if the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which votes was cast for use at the election in question he or she shall notwithstanding the absence of the official mark, count the ballot paper.
A close look at the above provision would reveal that what the law gives to the returning officer is a blanket power which may be exercised anyhow because it is the exclusive preserve to perform the obligation so imposed by law. In doing this, his discretion is needed which the law did not provide. In Menkiti V Menkiti (200) 8 NWLR (Pt.667) 154, it was held that exercise of discretion cannot be subjected to any rule or procedure neither can it be circumscribed by human made guidelines, though it must be in compliance with natural justice. See also University of Lagos V Aigoro (1985) NWLR (Pt.1) at 143.
Stretched further, a more analytical dissection and justapositing of sections 60 and 63 of the Electoral Act 2022 would reveal that while section 60 deals with election results, section 63 deals with ballot papers.
Unfortunately, the tribunal applied section 60 which deals with stamping, signing and dating of election results and not ballot papers. For this, we submit that the tribunal misapplied the law and therefore, its findings are perverse, unjust and cannot stand.
Although, the electoral Act did not specify what an “official mark” means, it is submitted that any mark or name of any official of INEC suffices. In Aiki V Idowu (2006) 9 NWLR (Pt.984) at 49, or Aiki V Idowu (2006) All FWLR (Pt.293) 361 at 375,the court held that any mark constitutes a signature Also, by virtue of clause 5, of the INEC Regulation and Guidelines for the election, upon collation of results, INEC ward collation officer is deemed to have resolved any discrepancies.
It is submitted that by parity of reasoning, once the result of the election is taken and announced by the electoral officers, it is deemed that the result is valid.
In any case, clause 36 of the Manual and Guidelines on the election seems to suggest that water mark constitutes official mark. We submit that if that were to be taken, then, the tribunal was wrong to rely on the CTC or copies of the result because water mark can only be seen in original copies of ballot papers because water mark is a hidden security features in the ballot. What is more? Our courts over the years have reiterated the point beyond any peradventure that there is presumption of regularity in favour of any result declared by INEC. See Livinus Gwaza Ujumatyu V Titus Tyoapine uba & Ors. (2019) LPELR 48859.
Although, the presumption of regularity which enures in favor of INEC results by virtue of section 168 of the Evidence Act is a rebuttable one, the burden of proving otherwise is squarely on the person alleging any irregularity. Unfortunately, the Tribunal got it wrong in this regard when it held at pages 215-216 of the judgment thus: “The 1st Respondent, in demonstrating that the ballot papers were valid, ought to have pleaded and further called the returning officer to give more particulars as to the validity of the official mark and also the 1st Respondent ought to have identified before the tribunal thumb printed ballot papers which the hoodlums brought”.
Ditto no evidence was led by the 1st Respondent to show that the Returning officer was satisfied that the ballot papers used in the aforementioned local government areas which did not bear the official marks, was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast or use at the election in question. The tribunal was left with no option but to work (SIC) the ballot papers tendered and relied upon by the petitioner. It is the view of this tribunal, that election petition results and reports are very important documents, as held by the Court of Appeal on the implication of undated election results and election report in the case of Adihige V. Nwogu (2010) 12 NWLR(Pt. 1209) 419 at 481.
Without having the name, signature and date of exception on Exhibits P5, P6-P16c, P18-P34a, how can the tribunal know that it was made contemporaneously with the date the results were declared? It may be of probative value if the maker gives parole evidence of date it was executed. Having not offered further explanation, this honorable Tribunal cannot engage on a voyage of discovery, to know why those ballot papers in respect of the local governments aforementioned, which did not bear the official mark, were counted or not”.
We submit, most respectfully, that the Tribunal completely went off the radar and misplaced the burden of proof by supposing that the INEC and other respondents in whose favour the legal presumption enures are to disprove the legal presumption. This is because the law on he who asserts must prove has not changed. Therefore, by misplacing the burden of proof, the judgment of the tribunal is perverse and unjust. See Atolagbe V Shorun (1985) 1 NWLR (Pt.2) pg. 360 at 375.
Stretched further, section 135 (3) of the Electoral Act, states that, “no election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the commission.”
We submit that this provision says it all. This is because, it is safe to argue that the law itself knows that there is no way an election may be conducted without any mistake or shortcoming at all. Thus, the word “mistake” has been judicially defined in Bello v. State (2016) LPELR-45601 (CA) as follows “I have consulted the Black’s Law Dictionary for the definition of mistake.
Black’s Law Dictionary (supra) defines mistake on page 1001 as: “some unintentional act omission or error arising from ignorance, surprise, imposition or misplaced confidence”.
Therefore, omission of dates, even official marks or step, cannot make an election to be invalid more so, that the court can take judicial notice of the date of election.
Furthermore, it is surprising that the tribunal that held that it cannot go on a voyage of discovery to know why the ballot papers which did not bear official mark were credited or not, somersaulted 360 degrees and held that it had no choice than to look at the results tendered and make use of them.
We submit that the tribunal was also wrong to have held that the hallowed principle of dumping of documents did not arise in the case based on section 137 of Electoral Act. This is because section 137 of the Evidence Act cannot override the provision of section 128-133 of the Evidence Act on burden of proof.
More interestingly, is the fact that this section was recently interpreted to be of no moment if a party fails to lead evidence on the documents tendered in court. We rely on the unreported decision of the presidential election delivered by the Court of Appeal on 6th September 2023.
Therefore, section 137 of the Electoral Act, even though an innovation, according to the tribunal, we submit that documents tendered before the tribunal or court must be spoken to and linked with the case of parties. Assuming without conceding that the findings of the tribunal that those results that bear no official mark are invalid and properly voided is correct, it is our submission that the tribunal cannot make a return of the APC candidate as the winner for the simple reason that the complaint against non affixing of official mark, non dating, non signing and non stamping of election results and/or ballot papers raised in the petition and decided by the court are grounds of non-compliance with the provision of the Electoral Act.
What is more? This was confirmed by the tribunal at page 206 where the tribunal held that “By way of conclusion, this issue, may we point out for the umpteenth time that section 137 of the Electoral Act and paragraph 46(4) of the first schedule to the Electoral Act, 2022, have changed the law on the hallowed doctrine of dumping in election petition litigation, so much so, that in a narrow sphere of proof of non-compliance, can now be proved by documents alone.”
It is submitted that by admitting expressly that the allegation of non- signing, non-dating non-use of official mark belong to the realm of non- compliance, the tribunal missed the point by declaring APC candidate as the elected governor of Kano State. This is because under our electoral jurisprudence, once a party based his petition on non-compliance with the provision of Electoral Act, the only order the tribunal or court can make is nullification of the election and not an outright return.
This means the tribunal should have cancelled the results and order for fresh election in the affected areas. See section 136 of the Electoral Act, 2022, which provides:
(1) Subject to subsections (2) and (3), if the tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or court shall nullify the election and order the commission to conduct a fresh election not later than 90 days after the-
(a) Decision if an appeal is not filed against the decision; or
(b) Nullification of the election by the court having final appellant jurisdiction in respect of the said election.
Before dilating on the above provision, we reproduce section 136(2) and (3) which states thus;
(2) Where an election Tribunal or Court nullifies an election an the fund that the person who obtained the highest votes at the election was not qualified to contest the election, the lection tribunal or court shall declare the person with the second highest number of valid votes cast at the election who satisfies the requirements of the constitution and this Act duly elected.
Provided that the person with the second highest number of valid votes cast at the election remains a member of the political party on which platform he contested the election otherwise, the candidate with the next highest number of vote in the election and who satisfies the same conditions shall be declared the winner of the election.
(3) If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the found that he did not score the majority of lawful votes cast at the election, the election tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the constitution and this Act.
Looking at the above provision of the law in section 136 (1) (2) and (3), it is crystal clear that the tribunal will only have power to declare anyone the winner of an election where the petition succeeds on section 134 (1) (a) and (c) which deal with non-qualification of candidate and failure to obtain majority of lawful votes cast at the election respectively.
Therefore, section 136 (1) of the Electoral Act, 2022 has pinned down the specific order a tribunal can make where the petition succeeds on any ground other than the two grounds mentioned in section 134 (a) and (c) of the Electoral Act, 2022.
To do otherwise therefore, is an offshoot of the law. Put differently, the petitioners on one hand wanted the election to be nullified on the ground of corrupt practices or non-compliance, while on the other hand they want the tribunal to declare the 1st Petitioner as the winner of the election having allegedly scored majority of lawful votes cast at the election.
Considering the reliefs sought at the tribunal here, it can be concluded that the reliefs sought are mutually exclusive or inconsistent and incongruous.
In OBIEKWE & ANOR V. AYINLA & ORS (2019) LPELRN-50785 the court held that, “The complaint of the appellants under this issue centered on the reliefs sought by the Appellant as petitioner for the mollification of the election of the grounds that same was marked by substantial irregularities non-compliance with the provision of the Electoral Act 2010 (As Amended) and the reliefs seeking for declaration of the 1st Appellant as duly elected by majority of lawful votes cast are mutually exclusive, and cannot be granted.
I agree with the learned Judges of the Tribunal that in law the Appellants are entitled to make alternative claims in the petition but the Appellants have to make a choice which of the claims to pursue. The 1st Appellant cannot claim that he won the election by scoring majority of valid votes cast and at the same time seek for the nullification of the election. The reliefs are clearly incongruous and rightly, in my view, discontenanced by the Tribunal. See also, AMOSUN V. INEC (2010) LPELR 4943 (CA).
It is submitted that in a petition alleging and founded on substantial non-compliance with the Electoral Act or corrupt practices, no winner ought to emerge. In other words, the consequences of proof of such allegation, which is the only relief available to a Petitioner relying on such grounds, is the nullification of the election and order for fresh election. No more, no less. Meaning that a petitioner cannot pray to be returned as the winner of the election he alleged to have been flawed by substantial non compliance as it is not only incongruous but also sign post his insincerity in the claim he is making before the Tribunal.
CONCLUSION
From the foregoing, it is undoubtedly clear that the judgment of the Tribunal is a total miscarriage of justice.
In the analysis of the facts of the case and interpretation of the law, the Tribunal took over the case of the Petitioners in arriving at its indefensible conclusion. In as much as the Tribunal tried to hide its unbelievable bias, one of the members employed such foul and vulgar language in attacking the 1st Respondent and members of the New Nigeria Political Party. In arriving at a predetermined position the Tribunal cancelled 165,000 votes because of the mistake of INEC officials who failed to mark and stamp the ballot papers.
Thus, in an undisguised manner, the Tribunal clearly showed sentiment and emotion in support of the APC in the language used in the judgment. A member of the Tribunal, Justice Benson Anya let the cat out of the bag when he said, “I use this opportunity to condemn the gang of Red Cap wearers who like a violent and terrorist cult chased us out of Kano and put us in the fear of our lives.
We believe that only Allah is the giver of power. Those who believe in Allah must bow to his will and submit to the authority of Governmental power. Resort to anarchy, violence and killing can never be a source of lawful power. Threatening to put Honourable Judges in the danger of their life as done in Kano by some disgruntled bandits parading as politicians is hereby condemned.”
In descending to the arena and subjecting the entire members of the NNPP to collective punishment the Tribunal did not deem it fit to give them fair hearing before condemning them. However, we agree with the Tribunal that “only Allah is the giver of power.” But since Allah has through the electorate of Kano State given power to Governor Abba Yusuf, we are confident that the Court of Appeal will dismiss the unjust judgment of the Tribunal and res tore the confidence of Nigerian people in the judiciary.
Kabir Akingbolu, Esq, a legal practitioner, human rights activist and constitutional law expert, writes from Lagos, Nigeria
