From Godwin Tsa, Abuja

Protests had erupted in two Northern states of Kano and Plateau with the demonstrators denouncing the judgment of the Court of Appeal that sacked Governors Abba Yusuf of the New Nigeria Peoples Party (NNPP) and Caleb Mutfwang of the Peoples Democratic Party(PDP).

 

Indeed, the sack of the two governors had invoked widespread condemnation and demonstrations denouncing the court decision.

The protesters who accused the Court of Appeal of miscarriage of justice are all demanding that the mandate of the affected governors be restored by the apex court through a fair judgment.

They resolved that nothing short of their demand for a fair judgment would bring peace to the two states.

In  Kano State, the governorship dispute is between Abba Yusuf and the candidate of the All Progressives Congress(APC), Nasir Gawuna, while Governor Mutfwang is in battle with the candidate of the APC, Mr. Nentawe Goshwe.

The two governors are presently on their knees before the Supreme Court seeking the setting aside of the judgments that nullified their election victories.

On December 21, 2023, the Supreme Court reserved judgment in the appeal filed by Governor Yusuf, while that of his Plateau state counterpart, Mutfwang, was deferred to January 9, 2024.

The question, however, is whether the judgment of the Supreme Court can quench the political fire that has been ignited by the protesting supporters in the two states.

In this regard, it’s important to examine the issues that have been canvassed before the Supreme Court as it relates to the two appeals.

Kano

In Kano, the political crisis started when the State Governorship Election Petitions Tribunal in its virtual judgment delivered on September 20, sacked Governor Yusuf of the  NNPP, from office and declared Nasiru Gawuna of the All Progressives Congress, APC, as the valid winner of the governorship poll that held in the state on March 18.

The three-member panel tribunal, led by Justice Oluyemi Akintan-Osadebay, held that some ballot papers that were relied upon to declare Yusuf as the winner of the gubernatorial contest, were neither signed nor stamped by the INEC.

Thereafter, it proceeded to declare 165,663 of the votes that were credited to the NNPP candidate as invalid.

Following the deduction of the said invalid votes, Yusuf, who was initially declared winner of the governorship poll with a total of 1,019,602 votes, had his tally reduced to 853, 939 votes.

With the development, his closest rival and candidate of the APC, Ganuwa, emerged as the winner of the election with 890,705 votes.

However, dissatisfied with the judgment, Governor Yusuf approached the Court of Appeal, which on November 17, upheld the verdict of the tribunal.

The intermediary appellate court, in a unanimous decision by a three-member panel of justices, held that Governor Yusuf was not a valid candidate in the gubernatorial election that was held in the state on March 18.

It maintained that proof of evidence that was adduced before it established that the governor was not a member of the New Nigeria Peoples Party, NNPP, at the time the election was held.

According to the court, Yusuf, under section 177(c) of the 1999 Constitution, as amended, was not qualified to contest the governorship election since he was not validly sponsored by the NNPP.

“A person must be a member of a political party before he can be sponsored for an election.

“Sponsorship without membership is like putting something on nothing,” the court held in its lead judgment that was delivered by Justice M. U. Adumeh.

It held that the Constitution stipulated that a person shall be qualified for the office of a governor of a state if he is a member of a political party.

The court held that sections 77 (2) and (3) of the Electoral Act made it mandatory for political parties to maintain a register of its members, which it must make available to the Independent National Electoral Commission, INEC.

It added that the tribunal was wrong not to have disqualified the Appellant after his name was not found in NNPP’s membership register.

The court held that the party’s decision to sponsor a candidate who was not its member in the governorship contest was fatal to its interest.

Consequently, it declared that Governor Yusuf’s participation in the election without valid sponsorship by a political party was “nothing but a mere nullity,” and awarded N1 million cost against him.

However, controversy trailed the certified true copy of the judgment of the appellate court, after it was discovered the concluding part, affirmed Governor Yusuf’s election.

The court had since dismissed it as a “clerical error”, insisting on its judgment that sacked the governor and declared Gawuna of the APC as the valid winner of the governorship poll.

Issues Before the Supreme Court

In his appeal before the apex court, Governor Yusuf and his party urged the court to set aside the decision of the Court of Appeal and tribunal and restore his mandate.

Yusuf submitted through his legal team led by Chief Wole Olanipekun (SAN), that there were inconsistencies in the Certified True Copy (CTC) judgment of the Court of Appeal that invalidated his election and granted him N1 million in damages.

The appellant passionately pleaded with the five-member apex court panel to determine whether or not, the guidelines of the Independent National Electoral Commission (INEC) would be a basis for nullifying the election victory of a candidate who won the election by a margin of over 100,000.

Olanipekun argued that this is the first time in the annals of electoral jurisprudence that an election was nullified because ballot papers were not signed or stamped at the back. According to him, INEC guidelines do not envisage that the courts would nullify an election based on INEC’s purported failure to stamp ballot papers at the back.

He maintained that Governor Yusuf’s membership of the NNPP is a pre-election matter and that the Court of Appeal lacked jurisdiction to entertain the matter. His words: “The judgment of the lower courts is very unfair to the appellant and we urge your lordships to upturn it.

“Nobody raised the legality or illegality of the ballots. They tendered the ballot from the bar. Nobody spoke to it. The ballot papers were legal because they were issued by INEC officials.”

On his part however, counsel to the All Progressives Congress (APC), Chief Akin Olujimi (SAN),  maintained that the Electoral Act mandates INEC’s Presiding Officers to sign the back of ballot papers to make them legal and lawful.

Chief Olujinmi said the findings of the tribunal were simply that the ballot papers were not signed at the back and not dated and proceeded to cancel the election where the ballots were used.

He argued that the electoral irregularities are manifest on the disputed ballot papers. On the issue of party membership, Chief Olujinmi argued that the NNPP membership register did not show the name of Alhaji Abba Yusuf on it.

Counsel for the INEC, Mr. A. B. Mahmoud, SAN adopted and supported the arguments canvassed by Chief Olanipekun.

Mahmoud went further to argue that the testimony of a subpoenaed witness(PW32) which the tribunal relied on to sack Alhaji Abba Yusuf was not front-loaded along with the petition at the tribunal contrary to the Electoral Act.

“They were our ballot papers issued by INEC,” Mr. Mahmoud said, adding that it was not the duty of a voter to check if ballot papers were signed or not but that of the party agents.

Mahmoud said INEC contends that the tribunal went far beyond its powers in vetting each of the ballot papers in their chambers and not in open court.

He said that membership of a political party was an internal affair of a political party and Alhaji Abba Yusuf’s name was forwarded to INEC before the election while his party membership card was tendered in evidence at the tribunal.

Counsel for the NNPP, Chief Adegboyega Awomolo (SAN) said ballot papers were cast at the polling units but the APC legal team did not specify the polling units affected at the Tribunal in line with the rules of court.

Chief Awomolo said ballot papers not signed ought not to affect the validity of an election.

“My submission is that election is the decision of the people. Tribunal was wrong to recount the ballots in its chambers” stressing that not a single witness told the Tribunal that ballot papers were not stamped.

He urged the Apex Court to restore the 165,165 canceled votes of Abba Yusuf and affirm his election.

Plateau

The INEC had declared that Caleb Mutfwang of the PDP won the gubernatorial contest. He got 525,299 votes, ahead of the APC candidate, who polled 481,370 votes.

Dissatisfied with the outcome of the election, Goshwe went before the Plateau State Governorship Election Petition Tribunal.

He, among other things, contended that the PDP lacked a political structure in the states. He said they were incapable of validly nominating or sponsoring any candidate for the governorship poll.

Besides, he argued that the election of Mutfwang was not conducted in compliance with the Electoral Act. He insisted that Mutfwang did not win the majority of lawful votes cast during the election.

Meanwhile, a three-member panel of the tribunal headed by Justice R. Irele-Ifijeh, in a unanimous decision, dismissed Goshwe’s petition as lacking in merit.

Dissatisfied, with the judgment of the tribunal, Goshwe brought the case before the appellate court. He maintained his ground that the PDP candidate, Governor Muftwang, lacked the platform and legal qualification to contest the election.

He further alleged that the election was marred by over-voting and non-compliance with key provisions of the 2022 Electoral Act.

Delivering its judgment on the matter, the appellate court upheld the appeal and nullified the election of Governor Mutfwang.

In a unanimous judgment rendered on November 19, 2023, a three-member panel of Justices, held that Mutfwang was not validly nominated and sponsored by the Peoples Democratic Party, PDP, to participate in the gubernatorial contest that was held in the state on March 18.

It held that all the votes that were credited to him and the PDP after the election amounted to wasted votes.

Indeed, the same panel had on November 7, sacked a Senator and three members of the House of Representatives.

The panel based its decision on the failure of the PDP to fully comply with a court order that was made in 2022, which it said directed the party to conduct congress in the 17 Local Government Areas in the state.

It held that evidence the PDP produced to prove that it complied with the order, showed that 12 LGAs were excluded in a purported congress it held to select its candidates for the 2023 general elections.

The appellate court, therefore, held that though the lawmakers won their respective seats during the National Assembly election that was held on February 25, all the scores that were credited to them, amounted to wasted votes as they were not valid candidates.

Consequently, the appellate court panel, led by Justice Elfrieda Williams-Dawodu, ordered the INEC to withdraw the Certificate of Return that it earlier issued to Mutfwang of the PDP as the winner.

It ordered that the candidate that got the second majority of lawful votes at the election be sworn in as governor.

While many commended the decision as being the true reflection of the law, others have criticized and consequently pointed a faulty finger at the appellate court on grounds of inconsistency in terms of delivery of judgment in what they considered as double standard and political favouritism.

PDP, Gov Mufwang cry foul

The PDP claimed it conducted its primaries peacefully from the State House of Assembly, the National Assembly, and the Governorship primaries which produced Governor Caleb Manasseh Mutfwang.

The party said the emergence of Mufwang as the PDP flag bearer brought a sigh of relief to Plateau people due to his competent and renewed commitment to drive the peace and unity of the state. To many, including some members of the opposition, his emergence marked the beginning of the PDP taking over the state in 2023.

However, some commentators were of the view that the said judgment of the Plateau State high court went to the root of the capacity of the PDP to validly nominate and sponsor candidates in the state until the said judgment cum order was given effect completely.

They noted that this judgment was upheld by the court of appeal in two separate appeals with the supreme court in SC/CV/1341/2022 equally dismissing a further appeal and upholding the decision of the Plateau State high court.

Issues before the Supreme Court

The above judgments have raised controversy, particularly within the PDP, which strongly believed that the subject matter before the court bordered squally on the issue of nomination and sponsorship of candidates by a political party, which they argued, rightly so, that is an internal affair of the party and therefore outside the jurisdiction of the court.

This is because it’s an established principle of law that pre-election matters are purely internal affairs of political parties and opposition parties have no right to meddle into them.

The Governor’s legal team headed by a former Attorney General of the Federation and Minister of Justice, Kanu Agabi (SAN) had argued that the issue of nomination and sponsorship of a candidate for an election was purely an internal affair of a political party which no court had the jurisdiction to wade into.

Moreso, he contended that the Appellant lacked the locus standi to query a nomination and sponsorship of the candidate of another political party.

Likewise, the counsel for the PDP, Mr. Emeka Etiaba, SAN, urged the court to strike out grounds 1 and 8 of the appellant’s grounds of appeal, saying they lacked competence.

Etiaba, SAN, argued that governor Mutfwang emerged as gubernatorial flag-bearer of the PDP, through a validly conducted primary election he said was duly monitored by INEC.

Like in Kano State, youths from across the 17 local government areas of Plateau State, under the aegis of Plateau Support Network, PSN, took to the streets calling on the judiciary to reverse the judgment of the Court of Appeal that sacked Governor Caleb Mutfwang.

PSA’s spokesman, Sokshak Shikse, said: “We only ask that the courts recognise and respect the mandate given by the people to this administration and strictly adhere to the provisions of the constitution regarding the process of its judgments at the petitions tribunal.

“We have faith in the hallowed chambers of the judiciary of the Federal Republic of Nigeria and believe that her worthy justices will execute temperance and an unwavering sense of justice while hearing and judging the election petition case at the Supreme Court, God helping them”.

Others who picked holes in the judgment of the Court of Appeal accused the court of contradictions and Legal misinterpretations. They faulted Justice Abdulaziz Waziri’s alleged claim that the Plateau State PDP case is not a pre-election matter, contradicting legal precedents like Uduma v. Arumsi (2012) and Kente v. Bwacha (2023), which establish that nomination and sponsorship issues are pre-election matters.

The appellate court was equally accused by critics of engaging in selective jurisdiction and impartiality, saying the Court of Appeal’s selective application of pre-election jurisdiction in the Plateau State PDP case raises concerns about impartiality.

“Justice Waziri’s emphasis on alleged disobedience of a court order and lack of party structures as grounds for disqualification overlook the Supreme Court’s position in Kente v. Bwacha (2023), which emphasizes that internal party matters are outside the court’s jurisdiction.”

According to a human rights activist, Steve Daniels, “Evidence of PDP Compliance with the Justice  Gang Court Order: Contrary to Justice Waziri’s claims, evidence exists that the PDP complied with the Plateau State High Court’s order for a repeat congress. The order in PLD/J304/2020 was complied with, and the repeat congress took place on September 25, 2023 and was monitored by the INEC.  However, the court could not have concluded that PDP did not comply with the judgment of 2020 delivered by Justice Gang without rubbishing the repeated congress, which the court eventually tagged as not full compliance, but partial compliance with the judgment of Justice Gang. In doing so, the Court (sitting at an election Tribunal) found itself venturing into the propriety/validity or otherwise of the repeated congress.

The issue now is not that of lack of compliance with the judgment of Justice Gang but that in complying with the judgment, certain things were not done properly. Does the Court, sitting as a Tribunal, have the jurisdiction to look into the propriety/validity or otherwise of the repeated congress, including how it was done? Only a regular court, as opposed to the Election Tribunal, has the jurisdiction to entertain the issue of validity or otherwise of a party’s congress. Under section 285 of the constitution, the jurisdiction of the Election Tribunal is very restricted, and, like Mount Gibraltar, cannot be expanded.

As it stands, all eyes are on the Supreme Court to do substantial justice on the appeals.