Wednesday 30 December, 2015 Updated 14:00

Taraba Tribunal Tango and Common Sense

27 Dec 2015

Right of Reply By Nuhu Danfulani

In his THISDAY column of December 20, 2015, Simon Kolawole made a side comment on the legal battle in Taraba State between the governor, Arc. Darius Ishaku, of the Peoples Democratic Party (PDP), and his challenger, Hajia Aisha Alhassan, of the  All Progressives Congress (APC).

The case, which is now at the Court of Appeal, has become a subject of intense and sometimes emotional debate because the judgment by the Justice Musa Danladi Abubakar-led tribunal on November 7, 2015, was first of a kind. The tribunal ruled that the election was substantially free and fair but declared that since the PDP held its governorship primary in Abuja instead of Jalingo, the Taraba capital, then Alhassan, the APC candidate who came second, should be sworn in as the governor.


Since this verdict was delivered, I have been expecting Kolawole to comment on it. He had always played the role of an activist when it comes to electoral justice, and I still recall his articles when Mr. Peter Obi was robbed of his victory in the governorship election of Anambra State in 2003. These days, Kolawole tends to want to play the role of a statesman, refusing to take sides, pulling his punches and advising on the way forward rather than confronting the demons tormenting our democracy. While his new inclination has its advantages, the trade-off is that he will become less vocal about injustice. He cannot afford to do that. That Kolawole treated the perfidy in Taraba as one of those things under "Four Other Things" is not enough at all.


There are several issues in the Taraba judgment that need to be understood by Nigerians. The one people talk about the most is the fact that the candidature of Ishaku is a pre-election matter that should not have been entertained by the tribunal at all. However, there are several other issues that we cannot gloss over. The one that comes to mind immediately is the position of the law on the validity of nomination. According to Section 140 (2) of the Electoral Act (as amended), where an election is nullified on the ground that the person who obtained the highest votes was not qualified to contest the questioned election, the tribunal shall NOT declare the person with second highest votes as elected, but shall order a fresh election. That is the law. In this case, however, the tribunal said Ishaku was not qualified to run and still went to declare second-placed Alhassan as the winner.


Curiously, the Justice Abubakar-led tribunal declared on November 7: "We are not unmindful of the provisions of section 140 (1) & (2) of the Electoral Act, 2010 (as amended) on the appropriate order to make where an election is nullified on the grounds of irregularity, non-compliance or non-qualification to the effect of order of fresh election. However, where the issue of non-qualification is predicated on non-sponsorship or non-nomination of a candidate, the proper order to make is declare as elected the candidate with the second highest votes because the return winner cannot be said to have participated in the election and all votes cast on the said candidate are regarded as wasted votes." What is "proper order"? Who defined "proper order" under what statue? The law is so clear about non-qualification that it did not make an exemption for any "proper order".


The tribunal was clearly wrong when it disregarded the mandatory provision of Section 140 (1) and (2). The tribunal sought to justify its decision in adopting the approach of categorisation or redefinition of non-qualification. According to the tribunal, if the non-qualification is predicated on “non-sponsorship” or “non-nomination” of the candidate, the candidate with the second highest votes should be declared elected and returned. But where it is "any other form" of non-qualification", a fresh election may be ordered and any other relief granted. Evidently, the tribunal sought to change the wording of the electoral law with its pronouncement. Nowhere did the laws make such a distinction. Non-qualification is non-qualification, QED.


For emphasis, section 138 (1) (a) of the Electoral Act 2010 (as amended) which created non-qualification as a ground to question an election does not categorise the type and nature of non-qualification. Also, Section 140 (2) of the Electoral Act, which stipulates the relief to be sought and granted, did not categorise the type and nature of non-qualification that will result in ordering fresh election or declaring the person with the second highest votes the winner of the election. The Taraba Tribunal was only creating this previously unknown differentiation because it was determined to give victory to APC and Alhassan by any means. What the tribunal did was to grant a relief expressly forbidden by section 140 (2) of the Electoral Act, 2010 (as amended).


More importantly, by the logic of the law, if APC and Alhassan were arguing that Ishaku was not validly nominated by the PDP, the consequential prayer is to ask for a fresh election. This is clear in law. By failing to consequentially ask for a fresh election, Alhassan had already damaged her case. It had become a purely academic argument and should have been struck out by the tribunal. In Appeal No. CA/L/EP/GOV/763A/2015 (PDP v. INEC & 4 Others) delivered on August 26, 2015, the petition against Governor Akinwunmi Ambode (APC) on the ground that he was not qualified to contest the 2015 election did not contain a substantive prayer for fresh election. The Governorship Election Petition Tribunal of Lagos State promptly held that the petition was incompetent. It rightly struck it out. That is the position of law.


Indeed, this is the Lagos tribunal's conclusion: "So if for instance, the election is nullified, the people of Lagos state would be left in an anarchic situation as no order can validly be made for the conduct of fresh election, same having not been sought for [in PDP's petition]. A petition that is founded on disqualification of a respondent and an order of nullification of the election must of necessity contain a prayer for an order of fresh election. Where such a prayer is lacking, the petition will be incompetent and academic as even the resolution of such a petition in favour of a petitioner will not confer any utilitarian value on the petitioner(s). Where no relief for fresh election is claimed in a petition, a ground of petition founded on section 138 (1) (b) of the Electoral Act and the entire petition itself are incompetent and liable to be struck out." This is common sense.


The point raised by Kolawole on who can challenge the validity of a party's nomination is very important too. Alhassan and APC lack the local standi to challenge the nomination and sponsorship of Ishaku by the PDP because they are not members of the party. Only members of a party can validly question the nomination and sponsorship of a candidate. That is settled in law. However, we need to even look more at the implicit contradiction in the petition filed by Alhassan and APC. On the one hand, they pleaded that Ishaku was the nominated candidate of the PDP. On the other hand, they pleaded that he was not the nominated candidate. They recognised him as the valid candidate of the PDP in trying to prove alleged electoral fraud and then went ahead to say he was not the valid candidate. Ordinarily, a judge will strike out such a petition.


Alhassan and APC had in paragraphs 3, 4, 9 and 74 (6) of their petition pleaded that Ishaku was sponsored by the PDP for the April 11 and 25, 2015 election into the office of Governor of Taraba State. Particularly in paragraph 74 (6), they sought that the tribunal order INEC to conduct fresh elections in 13 Local Governments amongst the contestants, including Ishaku, who participated in the original election. In fact, the Taraba tribunal initially said in its verdict: “The 1st Petitioner (Alhassan) and the 1st Respondent (Ishaku) are among the 11 candidates who contested in the said election. While the 1st Petitioner (Alhassan) was sponsored by the 2nd Petitioner (APC), the 2nd Respondent (PDP) sponsored the 1st Respondent (Ishaku) in the said election conducted by the 3rd Respondents (INEC)." How then did the Tribunal turn round to say Ishaku was not a candidate "in the eye of the law"? Can this be explained logically and legally?
In law, a person who alleges contrary facts cannot be heard on such facts.

In Chris Ngige v. Peter Obi (2006), Aderemi JCA ruled that a person cannot be allowed to blow hot and cold with reference to the same transaction or insist, at different times, on the truth of each of two allegations or contentions according to the prompting of his private interest. Indeed, any person who alleges contrary facts in respect of the same transaction cannot, in the interest of society, be heard. Alhassan and APC clearly violated the ‘allegans contraria non est audiendus’ principle of law when they pleaded that Ishaku was sponsored by PDP and turned around to lead evidence to the contrary. The petition should have been struck out. This is common sense.


My biggest worry, which is what should worry analysts such as Kolawole, is that Nigeria is gradually moving from PDP shenanigans to APC tomfoolery. Relocating tribunals to Abuja is achieving its real purpose: to take all PDP states and hand them over to the APC, the ruling party. APC hopes to control the 36 states of the federation. History shows that it won't work. APC must learn from history.

PDP did all it could to subjugate the opposition, but it only ended creating mass enmity for itself. It lost power in a humiliating way. APC must choose a different path to domination. The people of Taraba wanted Ishaku and voted for Ishaku. There is no need to create crisis in a potentially volatile state like Taraba by forcing a candidate the people did not elect on them. PDP failed woefully in the last general election because of its folly and APC must avoid that horrible path.


I trust the Court of Appeal to do justice in the Taraba case and refuse to be intimidated by narrow sentiments. Nigerian judiciary needs to be respected for giving sound judgments, not all this "wuruwuru" to the answer that is now becoming the order of the day.

*Danfulani is a law undergraduate and public affairs analyst.

This APC government is the biggest fraud of the 21st century.


Topics like the above cannot make front page on this increasingly partisan forum.

This publication is PDP sponsored.

We are witnessing a curtail of judicial confusion and partisanship! The apc is so afraid of having viable opposition knowing well they are set on failure based on campaign promises. We are watching and vigilant. Chanji is a scam