Sunday, August 14, 2016 10:41 pm
By Barr. Shadrach Omeiza, E.
Another legal conundrum was thrown into the sphere of already settled position of law in the case of Idris Wada & Other Vs. Alhaji Yahaya Bello & Others when Hon. Justice Obande Festus Ogbuinya curiously passed his “dissenting judgment” on the 4th August, 2016 at the Court of Appeal sitting in Abuja, not minding the unanimous judgment of the remaining four Justices.
The dissenting opinion of the Judge in the twinkling of an eye “annulled” the governorship election of Kogi State and unceremoniously ordered a new election within 90 days after his opinion. This is based on singular reason that, Alhaji Yahaya Bello (the second Respondent) did not “fully participate in all the stages of the said election,” relying on Section 141 of the Electoral Act, 2010 while resolving a monotonous issue of“Whether the Honourable Tribunal was right in holding that the 1st Respondent who did not participate in all the elections and in all stages of the election was duly returned as the candidate who secured majority of lawful votes casts in the election.”
With absolute due respect to the Honourable Justice, this is the most per incuriam judicial opinion ever formulated in the recent time. The dissenting opinion is smacked with needless academic exercise devoid of judicial depth and sound legal reasoning and application.
Before going further, it is pertinent to know that, a “dissenting opinion” according to Black’s Law Dictionary, is “An opinion by one or more or more judges who disagree with the decision reached by the majority.” A dissenting opinion is a minority opinion that does not form the judgment of the Court reached by the majority opinion.
In an attempt to x –ray the dissenting opinion of Justice Obande, the following issues which probably escaped the grasp and understanding of His Lordship will be canvassed:
On issue 1:
What is the proper context of section 141 of the Electoral Act considering the provision that, “An election Tribunal or Court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.”
To understand this provision of the law entails the proper meaning of the following:
“It is trite law that the concept of “election” denotes a process constituting accreditation, voting, collation, recording on all relevant INEC Forms and declaration of results. The collation of all results of the polling units making up wards and the declaration of results are therefore constituent elements of an election known to law.” (see, Ogunbiyi, JCA in INEC &Ors Vs. Onyimbah E.C Ray & Ors.(2004) 14 NWLR PT 892, 92 at 123).
Also, Edozie, JSC in Chief Chukwuemeka O. Ojukwu Vs. Chief OlusegunObasanjo & Ors (19 NSCQR 90 at 139 -140), held that, “I am of the view, that the word “election” in the context in which it is used in Section 137(1)(b) of the Constitution means the process of choosing by popular votes a candidate for a political office in a democratic system of government.”
According to Section 8 of the Interpretation Act, “person” includes any body of persons corporate or unincorporated. By the virtue of this definition, a Political Party being a corporate legal entity is classified as a person.
The law does not give what “full participation” in the said election entails. However, the concept of full participation in an election process is hinge on the primaries elections and eventual emergence of a candidate.
In the dissenting judgment page 10 -11, Justice Obande while buttressing the concept of “all stages of the said election” made reference to per M.D Muhammad JSC in the case of Yar’adua Vs. Yandoma (2015) 4 NWLR PT. 1448 at 177. He quoted the JSC thus:
“…an election is a long drawn out process with distinct stages ending in the declaration of a winner by the returning officer. It entails one’s membership of a political party, his indication of desire to be party’s candidate at the election, primaries for nomination of the party’s candidate, presentation of the party’s candidate to INEC, the event of the election, return of successful candidate at the election after declaration of scores and ends with the issuance of certificate of return to the successful candidate (underlining mine).”
It therefore follows that, the contextual import of section 141 of the Electoral Act contemplates the party and the candidate full participation in an election and all the stages in the said election have more to do with candidate in alignment with his or her political party, which of course Governor Yahaya Bello fulfilled. At this point, both the party and the candidate are inseparable. It thus follows that Governor Yahaya Bello fully participated in all the stages of the said election. The decision of the celebrated case of Amaechi supports this position. Therefore,Saying oth erwise is to give a different interpretation to the provision of the law which the Honourable Justice did in this case by his dissenting judgment.
Whether or not there was more than one election in Kogi State having stated by the Honourable Justice that, “…the first Respondent was not a candidate in the election conducted on 21st November, 2015” without faulting the election held on the 5th December, 2015 which he accepted as a valid election with Alhaji YahayaBello as a rightful candidate.
In page 10 of the dissenting judgment, Honourable Justice O bande intoned that:
“Indisputably, the feuding parties are ad idem on the fact that the first Respondent was not a candidate in the election conducted on 21st November, 2015. In other words, it is axiomatic that he did not participate in it…….” This clearly shows that His Lordship predicated his dissenting judgment on the inconclusive election of 21st November, 2015. This is having agreed that AlhajiYahaya Bello was rightly and legally substituted and upholding the supplementary election of 5th December, 2015.
To all intents and purposes the 21st November inconclusive election was wrongly used as a premise for the dissenting judgment. The only election known to law in the proper sense of it is the 5th December, 2015 election. His Lordship obviously turned blind eyes to this sacrosanct truth and thus commits a wanton judicial transgression that smells to high heavens.
In page 3 of the dissenting judgment, His Lordship labored to introduce the concept of an independent candidate; a concept diametrically opposed to the provisions of the Electoral Act and rudely violates every known judicial precedent. This he did when he opined that:
“At the end of the supplementary election, INEC added the votes garnered by the demised Prince Abubakar Audu in the election held on 21st November, 2015 to those earned by the first respondent and declared him the winner of the gubernatorial election of Kogi State.”
His Lordship unceremoniously closed his eyes to the plethora of judicial precedents that established the right of a political party to canvass and own votes cast and not the candidate and the recent decision of the Supreme Court in the case of Agbaje Vs. Ambode (2016) 4NWLR PT. 1501 at 166 which held that no individual candidate can contest an election without its political party and votes cast thereat belong to the party.
His Lordship religiously used a key word “Shall” in the provision of section 141 of Electoral Act to passed his dissenting judgment because in his view “The word “shall” is deployed in the provision, which in the eyes of law signifies command on the court.” He quoted Ugba Vs. Suswan to support his position. With due respect, His Lordship erred because the word “shall” may not be construed as being mandatory, but being directory. It all depends on the context in which it is used. See, Obadina JCA in Kamba Vs. Bawa (2005) 4 NWLR PT. 914, 43 at 72.
Moreover, if we are to agree without conceding to His Lordship interpretation of Section 141 of the Electoral Act, that “any person” includes the Respondents, with due respect, His Lordship stumbled in his dissenting judgment by not considering the salient position of the law that such “any person” must pray or seek to be declared a winner in the said election. The Court as it were is not a Father Christmas but his Lordship appeared to be a Father Christmas in his dissenting judgment.
In fact, the right decision in tandem with the provision of section 141 of the Electoral Act is to declare or not to declare “any person” a winner and not to “annul the said election.” This is in line with the setting aside of the consequential order made by the Supreme Court in the case of JEV & ANOR v. IYORTOM & ORS (2015) LPELR-24420(SC). For all it worth, Honourable Justice Oban deFestus Ogbuinya’s dissenting judgment left much to be desired.
As the appeal go before the Supreme Court, we can predict with an accurate precision of an eagle that such dissenting judgment will be frown at and hastily thrown into the dustbin of forgetfulness and uphold the judgment of the majority of the panel of justices of the Court of Appeal.
By Barr. Shadrach Omeiza, E.