Date Published: 02/09/10
Wamakko Vs Dingyadi: Nigerian Judiciary on Trial! By Abdullahi Usman Jabo
The race for the control of Sokoto state politics between PDP and DPP rages on. While in a number of states, electorates are warming for 2011, the 2007 gubernatorial election tussle is yet resolved in Sokoto state. The on-going legal between PDP and DPP is adversely has seemed to stale any meaningful development in the state. Disappointedly, energy, time and resources are daily expended at war of vendetta and name tarnishing. On their own part, electorates in the state are yearning for an end to this legal battle so that the state could be in its right track to peace and development.
Ever since the 2007 general elections, many legal practitioners are of the opinion that Sokoto state PDP and its gubernatorial candidate are only living on borrowed robes, having not met the requirements of the provisions of the Electoral Act, the quashing of their claimed victory during the 2007 election as well as the conduct of a re-run election based on the controversial Appeal Court judgement in 2008.
For the sake of review, the legal tussle between PDP and DPP in the state centres around the critical issues of nomination and sponsorship candidates by political parties to contest the April 2007 general elections and the re-run election ordered by the Appeal Court Kaduna on April 11, 2008. The petition and counter petition were based on shortcomings and outright contradictions relating to eligibility for gubernatorial contest as enshrined in 2006 Electoral Act.
At both Election Tribunal and Court of Appeal Kaduna, it was petitioned that there was a case of dual sponsorship of one of gubernatorial candidates. That in on a certified copy of Form EC 4B (IV) of INEC filled by the affected candidate on February 12, 2007, two (2) parties – ANPP & PDP - were entered in the Column reserved for the name of sponsoring political party.
There were also issues bordering on same dual sponsorship and substitution. Wamakko had presented a letter to INEC Sokoto from the National Secretary of PDP, then Chief Ojo Madueke, dated February 5, 2007, substituting Mukhtar Shagari with Wamakko as the party’s gubernatorial candidate. When ANPP national scribe was invited by the Tribunal, the petitioner’s claim was admitted that Wamakko was up to that February 5 a bonafide member of ANPP, having attended and signed the register of the ANPP meeting held in Abuja on February 8, 2007. If PDP had substituted Shagari with Wamakko on February 5, why should same Wamakko attend the ANPP meeting on February 8? It was thus contended that 3 days after the receipt of Madueke’s letter, Wamakko was still enjoying dual party membership.
Another issue raised in the petition revolves deputy governorship; that on a certified copy of Form EC 4B of INEC, Wamakko entered the name of senator Bello J. Gada as his deputy. However, in the section reserved for the name and signature of the deputy gubernatorial candidate, the name of Muhtar Shagari was entered. As for the signature column, neither Gada nor Shagari signed.
Other charge brought before the Tribunal was that Shagari did not undertake an oath of contest for the deputy governorship post, as prescribed by the 2006 Electoral Act. That Shagari claimed to have taken the Oath at Nasarawa State High Court in Lafia on February 12, 2007. However, a certified copy of the receipt of payment made showed that Shagari undertook the Oath on April 27, 2007. It was, therefore, contended the Oath was taken some 2 weeks after the gubernatorial election, not before the election as required by Law.
On April 11, 2008 the Court of Appeal Kaduna gave a verdict on the Sokoto election case, in which the Court was satisfied that Wamakko’s nomination by PDP was a clear breach of Section 187 (1) of the 1999 Constitution and Section 38 of the 2006 Electoral Act and the nomination of Shagari as deputy gubernatorial candidate was not in conformity with the 2006 Electoral Act. Thus, it was established that Wamakko had enjoys dual party sponsorship while Shagari falsely backdated Oath of Contest document.
Accordingly, the Court nullified the election on the grounds of substantial irregularities and non-qualification of Wamakko and Shagari to contest the April 14, 2007 gubernatorial election. The Court showered much blame on INEC for allowing itself to be used by the ruling party in such shameful cover up. The Court further awarded a N50,000 cost against the respondents. It also ordered that the Speaker of the State House of Assembly be sworn in as acting governor pending a re-run election to be conducted within 90 days. Curiously, however, the Court ordered that only candidates and parties that participated in the annulled election were to contest the re-run election.
No sooner was the verdict passed than legal experts began to spot its grey areas. Prof Itse Sagay annoyingly protested that “The Court of Appeal in Kaduna made a serious mistake in not making a consequential order banning PDP and Wamakko from the election permanently having declared that Wamakko was disqualified ab initio.’’ Radical Lawyer, late Chief Gani Fawahenmi, echoed similar displeasure with the Court’s brazen contradictory verdict, opining that since Wamakko and Shagari were not validly nominated for April 14 2007 poll, there was no way they could contest the re-run election, since the time for documentation and screening of candidates by INEC had elapsed prior to the 2007 election.
When INEC and PDP insisted that Wamakko could contest the re-run election based on the Appeal Court order, DPP simply instituted a case at the Federal High Court Abuja demanding for the interpretation of the earlier Court of Appeal verdict on the matter and to issue an order disqualifying Wamakko and PDP from contesting the re-run election which INEC had scheduled for May 24, 2008. DPP participated in the re-run to enable it get the grounds upon which it could challenge the participation of Wamakko and PDP in the exercise.
On July 17, 2008 the Federal High Court rejected the DPP case for lack of jurisdiction and referred the matter to the superior court for consideration. Consequently, the DPP legal team moved to the Appeal Court Abuja, where verdict on the matter is still been awaited.
Pursuant to the re-run election of May 24, 2008, an Election Petition Tribunal was set up to address grievances that might arise thereof. The DPP presented two main issues to the tribunal for determination with regards to the re-run election which is the matter in contention. On February 18, 2009 the Election Tribunal passed its judgment, divided between Majority and Minority voices. The majority judgment by Honourable Justices A.M. Haliru, B.E. Agbatah, and G.K. Kaigama, dismissed the petition.
On the question of jurisdiction and abuse of Court processes as canvassed by the respondents, a majority judgement of the tribunal decided on the affirmative i.e that it had no jurisdiction to entertain the matter.
Also, the majority judgement decided that sitting on the same matter would amount on an abuse of court process, in view of the fact that another matter has been decided by the Federal High Court and now on appeal at the Court of Appeal Abuja seeking to know whether Aliyu Magatakarda Wamakko was qualified to contest in the May 24, 2008 re-run election.
On the other hand, a dissenting decision of two members of the Tribunal disagreed with the majority decision to say that it has no jurisdiction to entertain the matter by virtue of section 145 (1) (a) of the Electoral Act 2006 which gives the Tribunal the jurisdiction to inquire into whether a person whose election was questioned at the time of the election was not qualified to contest the election; in this case the 24th May 2008 election in Sokoto state. On the issue of abuse of Court process, the dissenting judgement also disagreed with the majority, as the issues before the Tribunal and those before the Federal High Court are radically different.
Having exhausted these preliminary issues, the tribunal in the in the dissenting judgement of Okonkwo and Ahamaije (JJ) went further to examine the issue of qualification of Aliyu Magatakarda Wamakko to contest the May 24, 2008 election, which is the main issue in contention. According to them, by virtue of the Court of Appeal’s decision which led to the re-run election, Aliyu Wamakko of the PDP was not qualified.
Their argument is not difficult to appreciate as the April 14, 2007 election was annulled due to irregularities in the form of multiple nominations, lack of proper sponsorship and lack of valid running mate with regard to the purported winner of the election, Aliyu Magatakarda Wamakko of the PDP. Therefore, a fresh nomination ought to have been made to INEC, if PDP had actually wanted him to be its candidate. This is by virtue of section 32 (7). The two judges also quoted section 177 and 187 (1) of the 1999 Constitution which they said apply to general election such as the April 14, 2007 election, which was annulled by the Court of Appeal and ordered a fresh election within 90 days. The new election ordered was in the opinion of the dissenting judgement a bye-election.
In arriving at their dissenting decision, Okonkwo and Ahamaije (JJ) listed some authorities some of which are Sections 32 (1) – 32 (7) of the 2006 Electoral Act to buttress their argument. Section 32, which contains the main reason, reads as follows:
Section (1) Every political party should not later than 120 days before the date appointed to a general election under the provisions of this Act, submit to the Commission in the prescribed forms, the list of candidates the party proposed to sponsor at the elections
Section (2) The list shall be accompanied by an affidavit sworn to by each candidate at the High Court of a state, indicating that he has fulfilled all the constitutional requirements for election into that office
Section (3) The commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election
Section (4) Any person who has reasonable ground to believe that any information given by a candidate in the affidavit is false may file a suit at the High Court of a State of Federal High Court against such a person seeking a declaration that the information contained in the Affidavit is false
Section (5) If the court determines that any of the information in the affidavit is false the court shall issue an order disqualifying the candidate from contesting
Section (6) A political party which presents to the commission the name of a candidate who does not meet the qualifications stipulated in this Section commits an offence and is liable to conviction to a maximum fine of N500, 000.
Section (7) Every political party shall not later than 14 days before the date appointed for a bye-election by the commission submit the list of candidates from the party for the bye-election
After a cursory look at the above Section, the dissenting judges in their decision believed that Section 32 (1) applied to only to a general election such as was held on April 14, 2007, but section 32 (7) applies to the case of bye-election or special election, that is where an election was cancelled and a new one held. Also, according to them section 32 (7) as opposed top section 32 (1) provides or affords the 1 st respondent and the political party sponsoring him very ample opportunity of remedying or rectifying whatever errors were found by the Court of Appeal in the nomination of 1 st respondent (Aliyu Wamakko) for the April 14, 2007 election and to correct same in the 24th May 2008; it is this opportunity which he did not take that made all votes cast to him null and void, because they were scored in favour of a party which has not actually sponsored any validly nominated candidate; hence decided that the petitioner’s petition succeeds.
Consequently, the judges made the following orders:
1. The 1 st respondent not being validly nominated as at May 24, 2008, was not qualified to contest the governorship election for Sokoto state held on May 24, 2008
2. The 562,395 votes recorded for the 1st respondent by the 3rd respondent and its agents at the said election are void and wasted
3. The 1st petitioner scored majority of lawful votes at the governorship election having scored 124,046 votes and also scored not less than one quarter of the lawful votes cast in at least two thirds of the Local Governments Areas of Sokoto state
4. 1st petitioner is entitled to be returned by the 3 rd and 4 th respondents as having been duly elected Governor of Sokoto state in the governorship election held on 24thth May 2008
5. The 1st petitioner shall forthwith be sworn in as Governor of Sokoto state
6. There shall be cost of N10, 000 for the petitioners
Dissatisfied with the decision in the majority judgement, the petitioner went on Appeal to the Court of Appeal for redress. While the case was lodged at Court of Appeal Kaduna, it was thereafter moved to Sokoto where a Court of Appeal was recently established to cater for judicial cases from Sokoto, Zamfara and Kebbi states. Interestingly, the case was entertained on January 18, 2010 and the judgement date would be determined by the Court, to be communicated to parties.
The judgement being awaited would finally resolved the contending issues of whether the lower tribunal had actually no jurisdiction to hear the case, and whether the 1 st respondent (Wamakko) was qualified to have contested the May 2008 re-run election in Sokoto state. Since Courts do not normally overrule themselves, Wamakko is already not qualified to have contested the April 14, 2007 election. What remains to be determined is whether he was qualified to re-run for the May 24, 2008 election. This is a gigantic task which only the learned judges can professionally and courageously undertake while at the same time maintaining their hard-earned integrity.
Surely, the So koto election case is but a case test for the Nigerian judiciary. As with all judicial pronouncements on election matters, the verdict to be given on Sokoto case would enrich the understanding of citizens in general and politicians in particular on the legal provisions of electoral laws as they practice the game of politics, moreso as 2011 is approaching.
Mal. Abdullahi Usman Jabo Esq,
(Former Speaker, Students Union Government, ABU-Zaria),
90, Abdullahi Kure Road,
P.M.B 1474 , Sokoto
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