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Why the Delta state governorship election tribunal upheld Uduaghan’s election

By Innocent Anaba

The judgment of the Delta State Governorship Election Tribunal which dismissed the petition filed by the Action Congress’ governorship candidate for the state, Mr. Peter Okocha against the election of Dr. Emmanuel Uduaghan, the Peoples Democratic Party’s candidate came to mane as a surprise.

This is because not many people knew the facts of the case. In dismissing Okocha’s petition, the tribunal had held thus, “The sum total of our views which we hold very firmly is that the Petitioners have not been able to establish that the 1st Petitioner was validly nominated to contest the April 14, 2007 gubernatorial election in Delta State.”

Without considering the fact of the case, some people  think that the judgment was a radical departure from the line of cases where it had been held that when a candidate was validly nominated by his party but was excluded by the Independent National Electoral Commission (INEC) the election must be nullified and a fresh election ordered.

Some of these cases include, the Adamawa State governorship election and that of Kogi  States.  Those who hold the above view strengthened their views with the Supreme Court’s judgment in the case of Action Congress V INEC reported in (2007) 12 NWLR (pt.1048) 222 where the apex court held that INEC has no power to disqualify a candidate  based on constitutional qualification.

Definitely, the choice of who flies a political party’s flag in an election ordinarily remains,  the business of that political party and not INEC. At the same time, the petition filed by Okocha challenging INEC declaration of Uduaghan as the winner of the Delta state governorship election raises other issues which did not arise in the other exclusion cases listed above.

By Section 145 (1)  (d) of the Electoral Act 2006, one of the grounds for filing a petition to challenge an election is that the petitioner was validly nominated by his party but was excluded. However, to succeed on this ground, the petitioner who claims that he was validly nominated but was unlawfully excluded in an election  must prove the following: (a) that he was validly nominated by his party. (b) that the election was conducted and concluded. (c) that a winner was declared and (d) that his name was not included in the list of the contestants. All these ingredients must be proved before a petitioner will be entitled to judgment.

It will be noted that Okocha was the candidate of the AC in the 2007 governorship election in Delta State. At the end of the election, IENC declared Uduaghan, the PDP candidate as the winner of the election. Dissatisfied with this declaration, Okocha filed a petition before the Delta State Governorship Election Tribunal asking that the election be nullified on the following grounds: (a) That he was validly nominated as the AC’s candidate for the election of the state but was unlawfully excluded from the election by INEC.

He had argued that election in the state was a nullity by reason of the unlawful exclusion and that the return of Uduaghan by INEC as winner of the governorship election of the state was illegal because he was unlawfully excluded.

He prayed the tribunal to nullify the election because he was excluded. He also asked that the results of the election be cancelled and an order be made for the conduct of fresh elections in the state.

INEC challenged the petition, contending that the Okocha was not qualified for the election to the office of governor of Delta State and that he was not validly nominated for the election to the office of Governor of Delta State and that he lacked the locus standi to institute the petition, amongst others.

During trial,  many issues arose for determination, but they did not form the basis for the dismissal of the petition. The petition was dismissed on the ground that Okocha did not discharge the burden placed on him the rules of evidence that he was validly nominated by his party.

Justice B.S. Mohammed; chairman of the tribunal captures the issue calling for resolution thus, “if it is found that the 1st Petitioner was not qualified to contest the said election by not having been validly nominated, then his exclusion would have been lawful. On the other hand if it is resolved that he was qualified to contest the said election then his exclusion would be unlawful.”

The  petitioner had argued that nomination of a candidate to contest an election was a matter that came before the date of an election and therefore a pre-election matter in which only state and federal high courts have the jurisdiction to inquire into.  Okocha’s counsel, Mr. Niyi Akintola(SAN) had argued that having proved that his client was validly nominated, the tribunal would be acting outside its jurisdiction by choosing to scrutinize the nomination. The tribunal accepted the fact that issue of nomination was a pre-election matter but said that the position did not apply all the time.

The tribunal said, “a petition grounded on exclusion such as this petition is one of such exception to the general rule.” Rightly n our view, the tribunal said that before a petitioner could prove unlawful exclusion, he must first prove valid nomination. Citing the case of Idris V ANPP, the tribunal held that it was before the election tribunal which has the power to declare unlawful exclusion that a petitioner must prove valid nomination. While agreeing with the petitioner that nobody has the right to question the decision of a party to pick anyone as its candidate, the tribunal noted that mere nomination of a candidate for election by a political party does not necessarily make the nomination valid.

After resolving  the powers of an election tribunal to inquire into whether a nomination was valid or not, the tribunal then proceeded to examine the validity of the nomination of Okocha by AC for the governorship election. Justice Mohammed said, “to be validly nominated a candidate must show that he has complied with all statutory provisions relating to nomination that qualify him to become a valid candidate in the election.”

INEC and Uduaghan had in their objections said that AC and Okocha did not prove that they complied with the provisions of section 187(1) of the 1999 Constitution which reads, “In any election to which the foregoing provisions of this part of this chapter relate, a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of the Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.”

They argued that AC sponsored one Charles Ufoma Obule as its deputy governor but that Obule subsequently decamped to the PDP and thereafter withdrew his nomination as deputy governorship candidate before the election. However, the Electoral Act stipulates a time limit within which a candidate may withdraw his candidature.

It was their contention that the time limit for the withdrawal and replacement of candidates had elapsed before AC replaced Obule. Following the withdrawal of Obule, AC replaced him with Dr. Obonofiemro Itorho. However, the tribunal found that the Form or the nomination of Governor which AC submitted to INEC clearly showed that the time limit for the submission of the form had lapsed before it was submitted.  First, It was stamped with a date December 13, 2006 by AC. The oath attached to it was shown to have been administered on  December 12, 2006.

Then the voters cards of the 12 nominators who nominated Okocha showed that they were issued with their voters cards after December 15, 2006, the date Okocha claimed his nomination forms were submitted to INEC. But when the tribunal examined the Governorship Nomination Form submitted to INEC by Okocha, it found as a fact that the Form was submitted to INEC  not earlier than February 13,2007 sixty clear days to the election of April 14, 2007 contrary to the claim by the petitioners that he submitted it on December 15, 2006. Justice Mohammed after examining the form said, “Exhibit P2 (Okocha’s Nomination Form) clearly and unequivocally and to the hearing of everybody, that it was not submitted to INEC on December 15, 2006 and in fact that it was not submitted to earlier than February 13, 2007 sixty clear days to the election of April 2007.”

He cited section 32(1) and (2) of the Electoral Act  which states, “32 (1) Every political party shall not later then 120 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections. Similarly section 33 (1) of the Act reads, “(1) A candidate for an election under this Part of the Act shall be nominated in writing by such number of person as prescribed by the commission whose names appear on the register of voters in the constituency.”

The tribunal relying in the above section, concluded that submission of nomination form of the petitioner and his running mate, their affidavits of fulfillment of constitutional requirements for election, evidence showing nomination in writing by such number of constituents as prescribed by the commission must take place not later than 120 days to the date of the election. “Until the petitioners comply with all these statutory requirements, Okocha can not be said to have been validly nominated,” the tribunal said.

It was also the conclusion of the tribunal that no evidence was led to show who was Okocha’s running mate between Obule and Itorho. It was also not shown if any of the two submitted his nomination form to INEC 120 days to the date of the election. With this, the tribunal came to the conclusion that the petitioners failed to show that the 1st petitioner was validly nominated. Consequently, they could not claim a valid nomination and unlwful exclusion. The petition was dismissed on this ground.


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