By Bello Galadi
On Wednesday, 20th September, 2023, the three- member panel of the Tribunal delivered its ruling and resolved all the three (3) grounds of the petition in favour of the Petitioners.
The grounds were: (1) That Abba Kabir Yusuf was not qualified to contest the 18th March, 2023 Governorship Election of Kano State because he was not a member of the NNPP as at the date of the election.
(2) That there was substantial non- compliance with the Electoral Act as regards over- voting, cancellations due to violence, destruction of electoral materials, willful obstructions, threats to lives of electoral officers and disenfranchisement.
(3) That Abba did not receive the majority of the lawful votes cast. The two (2) leading political parties at the election were APC and NNPP respectively. The Gubernatorial candidate of the APC was Nasir Yusuf Gawuna {hereinafter called “Gawuna”} while that of the NNPP was Abba Kabir Yusuf {hereinafter called “Abba”}.
At the close of the election, INEC declared Abba as the winner of the election with 1, 019, 602 votes, defeated Gawuna who polled 890, 705 votes. The margin of lead between the duo as announced by INEC was 128, 897 votes.
The Tribunal had resolved issue No. 1 in favour of the Petitioners. In other words, the Tribunal agreed with the Petitioners that Abba was not a member of the NNPP because his name was not on the membership register of the NNPP as at the date of the election.
With greatest respect to the Learned Judges, I find it difficult to agree with their reasoning. In politics, mere public declaration is sufficient to qualify one to be a member of a political party even if his name is not on the membership register.
The Tribunal had also agreed with the Petitioners that there was substantial non- compliance with the Electoral Act during the election. In other words, the Tribunal agreed with the Petitioners that there were incidents of over- voting, cancellations due to violence, destruction of electoral materials, willful obstructions, threats to lives of electoral officers, disenfranchisement and other irregularities, which was why the Tribunal cancelled the election of some Polling Units involving 231, 843 Permanent Voters’ Cards.
It is so elementary that, whenever a case of substantial non- compliance with the Electoral Act is successfully established by the Petitioner, the appropriate order to make by the Tribunal is fresh election, not declaration of winner. Why is this case different?
The Tribunal had equally agreed with the Petitioners that Abba did not receive the majority of the lawful votes cast. The Tribunal agreed with the Petitioners that Gawuna received the majority of the lawful votes cast. The Tribunal held that the 165, 663 ballot papers entered in favour of Abba’s votes in Tarauni LG were invalid for lack of authentication- no stamp, no signature, no date on them. The Tribunal therefore deducted the 165, 663 votes from the 1, 019, 602 votes of Abba and held that the lawful votes for the Abba was 853, 939 as against Gawuna’s 890, 705 votes. The margin of lead between the duo as declared by the Tribunal was 36, 766 votes.
I personally disagree with the Judges that an unauthenticated ballot paper is invalid. Section 63(2) of the Electoral Act, 2022 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 the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper”.
Where were the APC’s Polling Agents when the ballot papers were being sorted? How did they allow unauthenticated ballot papers to be counted in the first place? Where were the INEC’s officers when the unauthenticated ballot papers were allegedly being smuggled into the boxes?
Assuming that the Tribunal was right that the actual valid votes for Abba was 853, 939 and Gawuna 890, 705 votes, then the total cancelled votes of 231, 843 is greater than the margin of lead of 36, 766 votes between the two (2) candidates.
That being the situation, in my humble opinion, the election was inconclusive. It is a clear case of rerun. Why did the Tribunal declare Gawuna instead of ordering for rerun in the affected Polling Units?
Section 24(4) & (5) of the Electoral Act, 2022 is sacrosanct. No return for the election until polling has taken place in the affected areas. A return for the election can only be made if it is satisfied that the result of the election will not be affected by voting in the areas concerned. IN THIS CASE, THE RESULT OF THE ELECTION WILL BE AFFECTED BY VOTING IN THE AREAS.
Another serious issue that attracted my attention was the way the Tribunal made orders involving Gawuna who was not a party to the action. Initially, he chose not to contest the victory of the NNPP, which was why he congratulated Abba. He is therefore not eligible to benefit from the outcome of the action. He is caught by the doctrine of Estoppel of standing- by.
In the case of AZUBUIKE VS. PDP & ORS. (2014) 3, SCM, 1, the Supreme Court held that: “A judgement with an order, against a person who is not a party to a suit is to no avail”.
Another interesting issue is the fact that INEC and NNPP did not call a single witness by virtue of their positions as Respondents in the case, rather, they rested their cases on the cases of the Petitioners.
That was highly suicidal. Why should the two (2) Counsel to the INEC and NNPP take the bull by the horn? Election petition cases are so delicate, as such, they need to be handled with due diligence. Some Counsel who adopted the same pattern of practice in the past are still regretting their actions.
Abba called a single witness, one, Baffa Bichi. Why should Abba lead a single witness in a case of this magnitude of which he is the major beneficiary? Was it over-confidence?
I believe, the Appeal Courts will remedy the wrongs, place the laws in their proper perspectives and come up with sound and valid pronouncements that will pass the test of time.
Galadi is a former Chairman of the Nigerian Bar Association (NBA), Gusau Branch (covering Zamfara State). He is the President of Bello Galadi Foundation.
