By Ahmadu  Hammayaji, Abuja


It appears that the Taraba State Governorship Election Tribunal judgment may set off legal fireworks that would not be forgotten in a hurry going by the points of law raised by Taraba State Governor Darius Ishaku in his notice of appeal at the Court of Appeal, Abuja Division.

An interesting dimension to watch out for would be  the interpretation of the Court of Appeal to section 140(1) & (2) of the Electoral Act (as amended), which stated that  where an election is nullified on the grounds of irregularity or  non-compliance or non-qualification a  fresh election should be ordered.

Also a  worrisome question waiting to be answered is whether the  Tribunal went  beyond its brief by declaring the person with the second highest votes as elected when it  found that the  person who obtained the highest votes at the election was not qualified to contest the election?

In whatever manner this question and others  are answered,  the politics of Nigeria nay  the judicial process will not remain the same again as  the issues raised by the governor are too weighty to be ignored. Notwithstanding,  in his  notice of appeal  against the judgment filed   at the Court of Appeal, Gov Ishaku averred that the verdict of the Taraba State Governorship Election Tribunal nullifying his election was a miscarriage of justice.

 In the appeal filed at the Court of Appeal, Abuja division,  Gov Ishaku sought   two reliefs, namely: That the Court of Appeal allow the appeal,   and set aside the judgment of the  Tribunal delivered on November 7, 2015.

He further sought  the Court of Appeal to set aside all consequential orders made by the Tribunal and to strike out or dismiss the petition of   Senator Aisha Alhassan, the governorship candidate of the All Progressive Congress,  and the APC.

Named as respondents in the appeal includes Alhassan,  the APC; his own party, the Peoples Democratic Party, PDP; and the Independent National Commission, INEC as respondents.

Gov Ishaku laid  the foundation for his appeal in his third point, sub-titled error in law. In this point, which  thrust deep and sharp at the Tribunal’s verdict, he described as    error of law,  the  ruling   that he was not qualified to contest  for the office of governor of Taraba State having not being sponsored by a political party. He maintained that in his preliminary objection to Alhassan’s petition at the Tribunal, he had argued that he (Ishaku) was indeed sponsored by PDP and that in the event of a fresh election being ordered, should be the candidate of the PDP.

Building up his premise, Gov Ishaku submitted  that since Alhassan offered no response to his preliminary objection, that point in her petition ought to have been struck out by the Tribunal.

According to the notice of appeal: ‘’No evidence was required on the issue, but without waiting for any evidence, and without giving considerations to his  submissions on the issue, the Tribunal resolved the issue in favour of Alhassan and the APC.

‘’Having resolved the issue in favour of the Petitioners, the Tribunal did not  state the process of reasoning by which it came to the conclusion that the facts pleaded were not inconsistent with the ground that he was not sponsored by the PDP.

‘’The decision of the Tribunal resolving the issue in favour of Alhassan and APC did not take into account his, (Ishaku’s) preliminary objections.
‘’The failure to consider his (Ishaku’s) submissions on the issue constituted a failure of duty or of jurisdiction occasioning a miscarriage of justice’’ Gov Ishaku argued in his notice of appeal.

Further querying the competence of the Tribunal’s judgment, Ishaku, cited Obumneke V Sylvester & 179 Ors. (2010) ALL FWLR (PT 502) 1152, which held that a Commissioner of Oaths must append his signature to an oath or deposition to verify its authenticity and legitimacy. This reaction was in response to the Tribunal’s ruling that petitions not accompanied by sworn witness statements of depositions were acceptable or mere technicality once the necessary fees had been paid.

 Ishaku disputed this ruling,   arguing  that the Tribunal erred by accepting Alhassan’s petition even when it was not accompanied by sworn witness statements or depositions. He elaborated further with points as follows:  i. All the witness statements were not sworn to as no oath was administered; ii. The so-called witness statements did not bear the name or signature of the person purporting to administer the oaths; iii. Under paragraph 4(6) of the First Schedule of the Electoral Act, 2010 (as amended), a Petition should not be accepted for filing by the secretary of the Tribunal unless accompanied by witness statements duly sworn; iv. The petitioners themselves acknowledged that the witness statements were defective and indicated  in the pre-hearing information sheet their intention to amend same. ‘’Failure to swear to the witness statement is not a mere technicality’’ he affirmed.

Other contentious issues raised  by Gov. Ishaku in his appeal includes the argument  that the Tribunal erred by entertaining Alhassan’s petition that he (Ishaku) was not qualified to contest the election on the ground that he was not sponsored by a political party, even when  she failed to seek substantive relief for the Tribunal to order a fresh election.

‘’A ground of a petition to be competent and justiciable must seek a corresponding substantive relief. The failure to seek an order for a fresh election rendered the ground academic or hypothetical and therefore incompetent’’ he stressed.

Further picking holes in the judgment, Gov Ishaku tackled the Tribunal judges for not being mindful of the inconsistencies in the reliefs sought by Alhassan: “In one breath she sought for a declaration that she scored the majority of lawful  votes cast in the election, and in another breath argued that the same election was marred by corrupt practices and non-compliance to the Electoral Act, 2010 (as amended).” He noted.

Not done with tackling the Tribunal for erring in law, Gov Ishaku cited section 140(1) & (2) of the Electoral Act (as amended), arguing that the appropriate order to make where an election is nullified on the grounds of irregularity or  non-compliance or non-qualification is to order fresh election. He stressed that the power of the Tribunal when it is found that the  person who obtained the highest votes at the election was not qualified to contest the election is to order a fresh election. ‘’The Tribunal is forbidden from declaring the person with the second highest votes or any other person as elected, as acknowledged by the Tribunal itself’’ he stated

It would be recalled that  the  judgment of  the Taraba State Governorship Election Tribunal​ on November 7, 2015  nullified the election of Governor  Ishaku, and since then,  like the signs of an impending storm, political storm has been  gradually building up.

The Tribunal in its ruling maintained that  Gov Ishaku   did not emerge as PDP candidate via  valid primaries as required by the Electoral Act, 2010 and the 1999 Constitution.

The spontaneous  reaction to that judgment was the eruption of violence  in some parts of the already volatile State. No fewer than eight people were killed and more than 30 others were injured in the crisis which erupted  in Wukari,  Taraba  State  as a result of the  verdict.

Addressing the issues arising from the judgment  poignantly from partisan and judicial points of view, Ekiti State Governor, Ayodele Fayose maintained that Taraba people obviously voted for the PDP, and not for the APC which even after the re-run of April 25, still failed to garner the constitutionally required two-thirds majority. He insisted   it would  be a negation of the will of the majority to award the governorship to the party voted for by the minority.

However, determined to hold on to the popular mandate given him by Taraba people, Gov Ishaku  has since  identified  eleven (11) grounds or   eleven errors of law in the Tribunal decision  which he wants the Court of Appeal to adjudicate on, and finally throw out the Tribunal’s judgment which nullified his election. Tarabans and Nigerians are waiting with bated breath.
 
Hammayaji  is an Abuja-based  journalist and Public Affairs Commentator