On Friday, the Supreme Court gave the final position on the return of Mr. Samuel Ortom of All Progressives Congress (APC) as governor of Benue State. Aggrieved at the declaration of the APC candidate by the Independent National Electoral Commission (INEC) as winner of the April 11 governorship poll in Benue, Mr. Terhemen Tarzoor of Peoples Democratic Party (PDP) petitioned the Governorship Eletoral Petition Tribunal. Among other reliefs, he urged the tribunal to declare that Ortom was not validly nominated as APC’s governorship candidate and therefore was not properly returned as winner of the poll.
Tarzoor’s petition failed to fly. Justice Elizabeth Karatu, who delivered the judgement of the tribunal, held that the petitioner failed to prove that Ortom was not qualified to contest the election. The petitioner was dissatisfied and took his case before the Court of Appeal. Again, he lost. The appellate court upheld the tribunal’s decision and struck out Tarzoor’s petition for lacking in merit.
Yet dissatisfied, Tarzoor approached the Supreme Court to speak on his grievance. Expectedly, tension soared in Benue. Then, after the legal fireworks by parties to the appeal, the apex court finally spoke. A non-member, the Supreme Court held, lacked the locus standi (legal standing or right) to complain about the nomination of the candidate of a political party for an election.
While the judgement has since settled the legal clash over the governorship in Benue, it is beginning to create tension in some other states.
And the reason for this tense state of affairs is not far-fetched. Tarzoor’s grievance on Ortom’s nomination is not an isolated case altogether. It bears similarity to the situation in Taraba, where Hajia Aisha Alhassan of APC has been fighting hard to unseat Governor Darius Ishaku of PDP. After the declaration of Ishaku as winner of Taraba governorship poll, Alhassan approached the Governorship Election Petition Tribunal to void the former’s return by INEC on grounds of non-qualification. The APC candidate insisted that PDP breached the law on nomination of candidates to contest election. The conduct of PDP’s governorship primary for Benue in Abuja, the petitioner contended, was a violation of the law. She urged the tribunal to hold that Ishaku was neither validly nominated by PDP for the election nor lawfully elected in the poll.
The tribunal upheld Alhassan’s submissions, declaring that PDP had no qualified candidate for the election. The tribunal, which sat in Abuja on grounds of the precarious security situation in Taraba, dismissed PDP’s argument that it was compelled by insecurity in Taraba to hold its governorship primary in the Federal Capital Territory. The tribunal did not stop there. It ordered the swearing in of Alhassan, who scored the second highest number of votes, in Ishaku’s stead.
Shocked at the verdict, Ishaku rushed to the Court of Appeal with a plea to save his mandate. He got lucky. The appeal panel led by Justice Abdul Aboki found merit in PDP’s excuse that it moved its governorship primary for Taraba to Abuja because of insecurity. The Court of Appeal also held that Alhassan, a member of APC, was a busybody in complaining about how PDP nominated its candidate.
The issue of nomination of a candidate by a political party, the appellate court stated, “is clearly a pre-election matter which no tribunal has the jurisdiction to entertain.”
It added: “There is no dispute whatsoever in this case that the 1st and 2nd respondents (APC and Alhassan) have not said that the appellant (Ishaku) is not a member of a political party. From the pleadings and facts, it is obvious that the appellant is a member of the PDP.
“The right to complain is severely limited to participants in the primary election. Whether the primary election was done rightly or wrongly cannot be subject of an election petition. The most important question to be asked here is, was the appellant a member of a political party or sponsored by a party to participate at the election? “All evidence before the tribunal pointed to the fact that the appellant was duly sponsored by the PDP and INEC duly received his nomination. INEC did not at any time query his eligibility to participate in the election …
“I hold that the 1st and 2nd respondents have no right to challenge the primary election at which the appellant emerged as none of them is a member of the PDP. “Nomination of a candidate to participate in an election is the sole responsibility of a political party. Issue of nomination of candidate is within the domestic affair of a political party.”
The Court of Appeal also held that where the election of a candidate is nullified on grounds of non-qualification, a tribunal can only order a fresh poll and refrain from declaring anyone the winner.
But the Court of Appeal panel that heard the petition filed by All Progressives Grand Alliance (APGA) candidate for Anambra Central Senatorial District, Chief Victor Umeh against the return of Mrs. Uche Ekwunife, who was sponsored by PDP, took a conflicting course with respect to whether the candidate of a party has the legal standing to complain about the nomination of the candidate of an opposing party. The Court of Appeal upturned the decision of the National and State Houses of Assembly Elections Petition Tribunal for Anambra State, which dismissed Umeh’s case. The appellate court went on to nullify Ekwunife’s election on the basis that she was not a product of a lawful primary election.
With this confused state of affairs, it is easy to see why the judgement of the Supreme Court in Tarzoor’s petition cannot just be for Benue alone. Although the facts of Tarzoor and Alhassan’s petitions are not exactly the same, the issues of law the apex court pronounced on in the former’s appeal certainly will shape what to expect in other similar petitions that are now pending before the Supreme Court.
But it is not just the conflicts thrown up by the judgements of the Court of Appeal in Tarzoor, Alhassan and Umeh’s petitions the apex court will finally settle.
Many other petitions also present intriguing judicial conflicts the Supreme Court will handle in the next few days. The apex court is expected to finally resolve the conflict created by the judgement of the Court of Appeal in the petition filed by APC governorship candidate in Rivers State, Mr. Dakuku Peterside against the election of Governor Nyesom Wike of PDP. The justices of the Supreme Court will also state the correct position of the law when they pronounce on the petitions filed by APC and Labour Party governorship candidates in Delta State, Olorogun O’tega Emerhor and Chief Great Ogboru respectively, against the election of Governor Ifeanyi Okowa of PDP.
And one of the most serious crises caused by the conflicting judgements of the Court of Appeal is the place of the card reader innovation in the validity of elections in the country. The issue first arose for determination in the petition filed by PDP governorship candidate in Lagos, Mr. Jimi Agbaje against the return of Mr. Akinwunmi Ambode of APC as governor. The PDP candidate had alleged non-use of the card readers in most areas of Lagos, urging the Governorship Election Petition Tribunal to declare that the situation invalidated the governorship poll in the state. The tribunal declined and dismissed Agbaje’s case. Agbaje was dissatisfied and took his case to the Court of Appeal in Lagos. The appellate court, however, agreed with the tribunal and dismissed Agbaje’s case. Justice Obande Festus Ogbuinya of the Court of Appeal held: “The concept of smart card reader … is a nascent procedure injected into our infant and fledging electoral system to ensure credible and trasparent election … Since it is not the progeny of the Electoral Act, a ground in a petition fronting it as a ground to challenge any election does not have its blessing, nay section 138(1) of it. Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election.”
Still not satisfied, Agbaje subsequently approached the Supreme Court to pronounce on the card reader matter. But the opportunity of making a specific pronouncement on the issue was aborted when the apex court struck out the appeal on technical grounds. Having struck out the appeal, the apex court refused to go into and settle the card reader issue. That occurrence left the decision of the Court of Appeal in Lagos as the extant judicial authority on the matter.
So, when Peterside made the alleged non-use of card readers in Rivers governorship poll as one of the grounds for seeking the nullification of Wike’s election, the latter sought refuge in the judgement of the Court of Appeal in Lagos. But the Rivers Governorship Election Petition Tribunal, which sat in Abuja, refused to stay by the decision of the appellate court. It said the alleged non-use of card readers in the Rivers governorship poll was a reason to nullify the election in the state. Wike appealed the decision. But he got a shocker. Members of the Court of Appeal in Abuja refused to toe the path of their brother justices in Lagos. They rather upheld the decision of the Rivers tribunal, nullifying Wike’s return for the alleged non-use of the card readers in the state.
Justice Peter Olabisi Ige of the Court of Appeal held: “Both smart card reader and voter register are to be used by election officials in all polling units for proper and valid accreditation of voters. They are inter-dependent as both are indispensible in (the) accreditation process before actual casting of ballot or voting by elgible voters … I agree with the tribunal when it said: ‘We therefore consider any subsequent act of non-compliance with the contents of exhibits …. on the efficacy of the card reader for the election as an act which will render the election a nullity.”
That, perhaps, is the only issue now sustaining the judgement of the Rivers tribunal, as the Court of Appeal had earlier expunged evidence of violence during the election pleaded by Peterside.
But that would not be the end of the card reader conflict at the Court of Appeal. Delivering judgement in the appeal filed by Emerhor against the decision of the Governorship Election Petition Tribunal upholding the election of Governor Okowa of Delta, the Court of Appeal in Benin stood with the decision of the Lagos division of the appellate court. The appeal panel in Benin dismissed the APC candidate’s contention that non-use of the smart card reader was a ground to nullify an election. The appellate court in Benin reemphasised the law on the matter in the petition filed by Ogboru against the return of Okowa. Delivering judgement in the petition, Justice Uwani Musa Abba Aji of the Court of Appeal stated: “The appellants have fruitlessly laboured to prove over-voting by data obtained from the card readers. As held in APC v. Agbaje … the card reader is not progenitor of the Electoral Act, 2010, it cannot replace the provision of the statute to make its use or not as a ground for questioning an election or rather to prove over-voting pursuant to section 138 of the Electoral Act, 2010 (as amended).”
Now, there is confusion in the land because the Court of Appeal decided to sing discordant tunes. Most petitions over elections into state and federal assemblies have run their full course and terminated at the Court of Appeal on a conflicting note. One of them is the petition Umeh of APGA filed against Ekwunife, who was sponsored for Anambra Central Senatorial District poll by PDP. For people in Ekwunife’s category, even if the apex court finally settles all the issues arising from the conflicting judgements of the Court of Appeal in a manner that favours them, there may be little or nothing to benefit. And the reason is simple. They have exhausted their rights of appeal at the Court of Appeal. Except for pre-election matters, disputes over elections into state houses of assembly and the National Assembly end at the Court of Appeal.
On the contrary, disputes over governorship and presidential elections go all the way to the Supreme Court. And now, most of those who were dissatisfied with the decisions of the Court of Appeal in their cases have gone before the apex court to utter the final words on their complaints.
Although it has finally settled the Benue governorship dispute, will the Supreme Court re-affirm its position on who has the legal standing to challenge the process leading to the nomination of the candidate of a party when it eventually determines Alhassan’s appeal over Taraba’s governorship? Will the apex court insist it is a party affair non-members lack the locus to challenge? Will it say it is a pre-election matter tribunals lack jurisdiction to deal with like the Court of Appeal held in Alhassan’s case? In the cases of Rivers, Delta and Akwa Ibom, will the apex court place the use of card readers above manual accreditation? In other words, will the justices of the Supreme Court say non-use of card readers invalidates an election? The questions are many, the parties are edgy and the Supreme Court cannot but be circumspect for one obvious reason: its words are final and once uttered they become the stream of law all courts in the land must drink from.
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