Section 140(1) (2) and (3) of the Electoral Act has since become a subject of contention among lawyers. While some argued that the tribunal erred and the judge goofed by not calling for a rerun election, others aligned themselves with the ruling of the tribunal, stating that it is apt that once a candidate has been found to be illegally nominated by his party, the person with the highest number of votes can be declared winner as a court had set this precedent.
In 2011, Justice Okechukwu Okeke of the Federal High Court sitting in Lagos had nullified Section 140(2) of the Electoral Act 2010 which provides that election tribunals cannot declare winners of elections on the ground that the Section was null and void and of no effect as it is inconsistent with the constitutional provisions which gives power to courts to make declarative injunctions.
Section 140 of the Act states that where an election tribunal or court nullifies an election on the ground that the person who obtained the highest vote was not qualified to contest or the election is marred by substantial irregularities or non compliance with provisions of the Act, the court shall not declare the person with the second highest votes as elected but shall order a fresh election.
The Justice Musa Abubakar led tribunal had held that the governorship primaries purportedly conducted by the PDP in the state was done in violation of Section 78 (b) (1)(2) of the Electoral Act which guides parties nomination of governorship candidate. The tribunal held that contrary to the provisions of the section, PDP conducted the purported primaries at its national secretariat, Wadata Plaza, in Abuja with no clear delegation from the local government areas in the state.
It also sustained the testimonies of the Head of Election monitoring of Independent National Electoral Commission that the commission was not aware of any primaries conducted by the party in line with the provision of the electoral act which produced Ishaku as the party’s flag bearer.
Speaking on the constitutionality of the verdict, Mike Ozekhome, told the Nigerian Tribune that the Taraba tribunal judgment is a monumental disaster.
“The entire judgement returning Senator Aisha Alhassan as the governor in place of Darius Dickson Ishaku is a monumental shame, a complete ruse and a total disaster bereft of any research or intellectual depth. To be sure, it is true that Section 87 (1) of the Electoral Act, 2010, as amended, provides that a political party seeking to nominate a candidate to represent it at an election must hold primaries. But, by virtue of Section 87 (9), anyone who complains that any of the provisions relating to nomination or selection of a candidate by a political party has not been complied with shall apply to the Federal High Court or the High Court of a state for redress. This, therefore, makes Darius’ alleged non qualification to contest the election, not being the product of any political party, in the absence of a primaries, to be a pre election matter.
“Even if we agree that such matter can be taken up as a post election matter at the tribunal, going by conflicting decisions of appellate courts, how can one excuse the final order made by the tribunal to the effect that the certificate of return be retrieved from Ishaku and given to Aishat who should be sworn in immediately?
“By virtue of Section 140 (1) of the Electoral Act, if the tribunal determined that Ishaku was not validly elected on any ground, it could nullify the elections as it did. But, the correct order to make is not to declare Aisha the winner who must be sworn in. The correct judgment is to order the holding of a fresh election between Darius and Aisha. This is by virtue of Section 140 (2) of the Electoral Act. This section provides that “where an election tribunal nullifies an election on the ground that the person who obtained the highest votes at the election (Darius), was not qualified to contest the election, or that the election was marred by irregularities, or non compliance with the provisions of the Electoral Act, the election tribunal shall not declare the person with the second highest votes (Aishat), or any other person as elected, but shall order a fresh election.
“The only time the tribunal shall order the swearing in of the challenger (Aishat) is provided for in Section 140(3) of the Electoral Act, and it is only when the governor in office (Darius), did not have a majority of the valid votes cast at the election. Section 140 (3) states that if the tribunal determines that a candidate who was returned as elected was not validly elected on the ground that he did not score a majority of the valid votes cast at the election, the election tribunal 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. This is where Aisha could fit in, but the tribunal itself didn’t fault Ishaku as having the highest number of votes. It indeed dismissed Aisha’s allegations that the election was marred by over voting. The Court of Appeal will definitely set aside this travesty of justice.”
Also supporting this assertion is Shuaib Alaran, who said that, “I have not had the opportunity of reading the tribunal’s judgment in full, but from the media reports, I think I will disagree with the consequential order of the tribunal that since the sitting governor was not validly nominated by his party, the candidate who scored the second highest votes becomes the winner of the election. To my mind, I think the appropriate order of the tribunal should have been the one calling for a fresh election with the exclusion of the PDP. My reliance is on Section 140(2) and (3). By virtue of those provisions, where the tribunal finds that a candidate who won in an election was not validly nominated by his party, the proper order is to direct the INEC to conduct a fresh election.
“The tribunal will only declare the person with the second highest votes winner, where it is established that the winner did not actually score the highest number of votes in the election. It could however be argued anyway that since the sitting governor did not participate in the election in the eyes of the law, consequent upon his invalid nomination, he wouldn’t have been seen to have scored the highest number of votes in the election that he did not contest and therefore the proper order will be to declare the second highest scorer the winner. This is the beauty of interpretation in the legal profession. At any rate, we have to wait to hear from the higher courts for their own interpretation.
Ugochukwu Osuagwu also believes the tribunal erred. He said, “If the ground for the annulment is that he was not validly nominated, it should be a pre election matter which the election tribunal has no jurisdiction over. The judgment must be wrong if that is the reason. But then he has a right of appeal and he remains governor if he files an appeal.”
However, it was not all knocks for the tribunal as some lawyers expressed the belief that nothing can be build on a vacuum. Taoheed Asudemade said, “In law, you cannot place something on nothing. And if he is not legally nominated, his candidacy is not valid. The law will not recognise him as taking part in the election. He was not a candidate. So, the first runner up will be declared winner.”
Credit: Nigerian Tribune
Credit: Nigerian Tribune
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