By Martin Elerika
Since Thursday 31st December, when the Appeal Court siting in Abuja led by Justice Abdul Aboki delivered judgement on Taraba Gubernatorial Election petition, legal luminaries and political analysts have taken turns to x-ray the ruling and point out the absurdities and contradictions inherent in same.
The Justice Musa Danladi Abubakar-led election tribunal had earlier in November 2015 ruled in favour of the candidate of the APC, Senator Aisha Alhassan, by unseating Darius Ishaku of the PDP based on irregularities in the party primaries that produced him and non-compliance with the Electoral Act. Many had expected the Appeal Court to affirm the ruling of the Tribunal, but that did not happen.
To gain full perspective of the matter, let’s examine the 5 issues examined by the court, the rulings on each and how they contradict the final judgement that was delivered.
The first issue was on whether the statement on oaths filed by APC’s Aisha Alhassan at the tribunal complied with Section 13 of Oaths Act. The second issue was on whether or not Aisha Alhassan introduced strange law and regulations in her petition. The third issue was on whether or not decision of the tribunal on the non-qualification of PDP’s Darius Ishaku to contest the April 11 election was right. The fourth issue was on whether or not the tribunal failed to review the evidence of one of the witnesses of the PDP, while the fifth and final issue was on whether or not the tribunal was right to remove PDP’s Darius Ishaku and declare APC’s Aisha Alhassan as winner of the April 11 election.
The first issue was resolved against the PDP as the court ruled that the witness statements of Aisha Alhassan of the APC complied with the Electoral Act. The second issue on the alleged incompetence of the petition of Aisha Alhassan was also resolved against the PDP as the court ruled that the inclusion of the non-qualification of Darius Ishaku in APC’s petition was in line with Section 138(1) of the Electoral Act. On the third issue, Justice Aboki confirmed that the INEC officer who testified at tribunal affirmed that the PDP primary which produced Darius Ishaku as candidate violated Sections 85 and 87 of the Electoral Act, but the PDP argued that the same Section 87 of that Act prohibits both the APC and Aisha Alhassan from challenging PDP’s primary.
The Court in its final judgement ruled that the APC and Aisha Alhassan have no locus standi to complain about the improper conduct of the PDP primary and the party’s failure to give 21-day notice to INEC. The court said only the participants in a primary can complain about its improper conduct and the issue of conduct of primary cannot be subject of dispute for adjudication by election petition tribunal.
In summary, the court admitted that evidence before it points to the fact that the primary which produced Darius Ishaku did not comply with the Electoral Act, and thus he was not qualified to contest the election, but that the APC and Aisha Alhassan are not in position to challenge that.
Now let’s examine the judgement delivered by the same Court of Appeal, Abuja in a similar case on 6th August 2015. The judgement delivered by Tinuade Akomolafe-Wilson in the case between Hon Fiki Eric Olorunjuwon of the PDP and Hon Obaro Abayomi Pedro of the APC over the election for Mopa/Muro State Constituency, Kogi House of Assembly.
The election tribunal sitting in Lokoja had earlier ruled that indeed the candidate of one party cannot challenge the election of another candidate based on irregularities in the primary that produced him. Below is an excerpt of the Court of Appeal ruling on this matter:
…However, the nomination of a candidate who is otherwise not legally qualified as contemplated by law is actionable by a member of another political party, whose is a candidate; on the grounds of qualification as envisaged under Section 138(1) of the Electoral Act. I am therefore in agreement with the learned Senior Advocates for the Appellants that the lower Tribunal placed a restrictive interpretation on Section 138(1) of the Electoral Act by limiting the issue of qualification on Sections 106 and 107 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). By the careful interpretation of Section 138(1) (a) of the Electoral Act, 2010, the qualification of any candidate for an elective post also extends to compliance with the mandatory provisions of Sections 87(1) of the Electoral Act.
In other words, the qualification of a candidate to contest an election as a member of the House of Assembly are not limited to the provisions of Sections 106 and 107 of the Constitution, as erroneously held by the lower Tribunal. A candidate of a political party who perceives that a contending opponent from another political party was not qualified to contest an election due to violation of the procedure for nomination of candidates by holding primaries pursuant Section 87(1) and (2) of the Electoral Act can approach the Federal High Court or State High Court before the election or the appropriate Election Tribunal after the conduct of election on grounds of disqualification as encapsulated in Section 138(1) of the Electoral Act.
As clearly stated in that judgement, the candidate of one party can challenge the election of the candidate of another party based on irregularities in his party’s primaries. As such the Taraba Election Tribunal was not only right to have heard the petition of Aisha Alhassan against Darius Ishaku, it was also right, after verifying the validity of same, to remove Ishaku from his seat as he was never qualified to contest the April 11 election.
Now if the Appeal Court affirmed that the PDP did not conduct a valid primary and as such Ishaku was not qualified to contest the election, it cannot in the same breath rule that Aisha Alhassan had no locus standi to challenge Ishaku’s position as Governor based on same when the Electoral Act has given candidates the right to. The judgement as delivered amounts to a miscarriage of justice, and hopefully the Supreme Court will reverse that and allow the rule of law prevail.
Martin Elerika, a legal practitioner, writes from Jalingo.