Inibehe Effiong: A legal examination of the judgment of the Taraba State Governorship Election Tribunal.

The decision of the Taraba State Governorship
Election Tribunal delivered on Saturday, 7th
November, 2015 has a lot of implications for our
electoral jurisprudence. The judgment has laid
down a radical, novel and insightful precedent in
Nigeria. There is no judicial authority known to
me whose facts are on all fours with this case.
Let me admit that I have not read the judgment.
Therefore, my opinion on the judgment is neither
infallible nor sacrosanct. However, the report of
the News Agency of Nigeria (NAN) on the ratio
(reason) for the epochal judgment is instructive.
The material part of the report is reproduced
below:
“The Tribunal, sitting in Abuja, declared the
candidate of the All Progressives Congress (APC)
and a Minister designate, Mrs Aisha Alhassan, as
the winner of the April 11 governorship election in
the state. In a judgment the three-member
tribunal held that Ishaku was not validly
nominated as candidate of the PDP and therefore
was not qualified, ab-initio, to contest the
governorship election.”
“Specifically, the tribunal 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 to the position of
governorship candidate. It held that contrary to
the provision 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.”
“The tribunal sustained the testimonies of INEC
head of election monitoring 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 flagbearer.”
“Section 78 (b) (1)(2) of the Electoral Act states:
In the case of nomination to the position of
Governorship candidate, a political party shall
where they intend to sponsor candidates:
(i) hold special congress in each of the Local
Government Areas of the States with delegates
voting for each of the aspirants at the congress to
be held in designated centres on specified dates.
(ii) the aspirant with the highest number of vote
at the end of the voting shall be declared the
winner of the primaries of the party and aspirant’s
name shall be forwarded to the commission as
the candidate of the party, for the particular
state.”
“The tribunal held that the defence by the PDP
that the primaries were shifted to Abuja because
of security challenges in the state was rejected by
the tribunal. It sustained the evidence of the INEC
official that there was no primaries election in the
state and the emergence of Ishaku through the
purported election in Abuja was after the statutory
stipulated time for party primaries had elapsed.”
“It held that since Ishaku was not duly sponsored
by the PDP, the party had no candidate in the
governorship election in the eyes of the law. The
tribunal therefore voided the votes of the PDP and
Ishaku in the election saying “it is a waste’’ and
declared the APC and its candidate, which came
second, as the valid winner of the April 11
election.”
It is wrong to relate or compare this case with the
locus classicus case of Amaechi v. INEC (2008) 5
NWLR (Pt. 1080) p. 227. Whereas the issue in
Amaechi’s was on who was the lawful and rightful
candidate of the Peoples Democratic Party (PDP)
as between Mr. Celestine Omehia and Mr. Rotimi
Amaechi. The question in the Taraba’s case is
whether the PDP participated at all in the election
in the eyes of the law.
By the provisions of Section 140 of the Electoral
Act 2010 (as amended), where an Election
Tribunal or Court determines that a candidate who
obtained the highest votes was not qualified to
contest the election, it shall not declare the
candidate with the second highest votes as
elected, but it shall order for a fresh election. On
the other hand, where the Tribunal or Court
determines that the candidate who was returned
as elected did not score majority of valid votes at
the election, it shall declare the candidate with
the highest valid votes as elected.
The law is now settled that qualification/
disqualification is both a pre-election and post-
election matter with concurrent jurisdiction
exercisable by both the Election Tribunal and the
High Court. The process of nomination of a
candidate touches on qualification of the
candidate and qualification is one of the four
grounds cognizable by Section 138 of the
Electoral Act upon which an election may be
questioned at the tribunal. See the recent cases
of Gwede v. INEC (2015) 242 LRCN 138 and
Akpamgbo-Okadigbo v. Chidi (No. 2) (2015) 10
NWLR (Pt. 1466) 124.
Thus, the law has endorsed the hybrid status of
qualification/disqualification of a candidate in an
election. Accordingly, it is wrong for anyone to say
that how the PDP nominated her candidate does
not concern the petitioner and her party – the
APC.
If the issue was solely on the qualification of the
PDP candidate then the Tribunal’s order declaring
the APC candidate as duly elected was arrived at
per incuriam (in error) as the proper order would
have been an order for a fresh election.
However, I need to restate that the main issue in
this case is beyond the qualification of the PDP
candidate, Mr. Darius Ishaku. Did the PDP as a
political party participate in the April 11th, 2015
gubernatorial election in Taraba State in the eyes
of the law? That is the crux of the matter.
Although the Supreme Court held in the Amaechi’s
case that it is a political party that is voted for in
an election and not the candidate, the law is
explicit that a party cannot participate in an
election without validly nominating a qualified
candidate.
The fact that the purported PDP primary election
was held outside the stipulated time as stated by
an INEC staff whose testimony was accepted by
the Tribunal is conclusive of the fact that the PDP
never validly nominated a candidate as required
by law. In essence, the PDP did not participate in
the election. It has been argued by some that it
amounts to “double standard” for the Tribunal
which sat in Abuja because of the security
situation in the State to invalidate the PDP
primary election which was taken to the party
secretariat in Abuja also because of “security
concerns”.
On the surface, this argument appears logical.
However, the point should be made that the
Tribunal was not the proper forum for the PDP to
raise such a defence. If INEC that is vested with
the constitutional power to monitor and supervise
primary elections of political parties did not admit
or agree with the defence of the PDP on why it
held Its purported gubernatorial primary in Abuja
instead of Taraba State as stipulated by the
Electoral Act, there is no justification for inviting
the Tribunal to consider, accept or agree with that
defence.
Also, it should be emphasised that even If the
primary was held in Taraba State it would not
have altered the decision of the Tribunal since it
was held outside the stipulated time. The Court of
Appeal and possibly the Supreme Court is open
for the respondents who are dissatisfied with the
findings of the Tribunal to test whether indeed the
purported primary was held outside the stipulated
time.
Having regard to Section 143 of the Electoral Act,
Mr. Ishaku will vacate office as the governor of
Taraba State for the swearing in of Mrs. Alhassan
of the APC except he appeals against the decision
of the tribunal within 21 of the delivery of the
judgment.
I firmly believe that the decision of the Tribunal is
legally defensible. Since the PDP cannot be said
to have participated in the election, the Tribunal
rightly held that the votes casted for the party and
its candidate were invalid and wasted. The
Tribunal’s consequential order declaring Mrs.
Alhassan of the APC as the winner of the election
is plausible, inviolable and in obedience to the
provisions of Section 140 of the Electoral Act
given that she scored majority of valid votes at
the election.
The judgment is an audacious precedent against
arbitrariness and impunity by political parties in
the selection and nomination of their candidates.
It is hoped that the PDP and other parties will be
humbled by this judgment and refrain from
political rascality and lawlessness in the interest
of justice and democracy.
Inibehe Effiong, Esq. is a Legal Practitioner.

Source:-Daily news.