I have seen and read the following statement on more than four different
Social Media platforms within the last 24 hours:
“Meanwhile, section 140 (2) of the Electoral Act, 2010 (as amended) does
not permit the Tribunal to deduct votes and declare a winner.”
With due respect, I am unable to agree with those who hold or disseminate
such an opinion. I do not think that statement represents the true state
of Nigeria’s electoral laws pertaining to powers of an Election Tribunal.
Meanwhile, beyond reports in the newspapers, I have not read the detailed
decision of the Osun State Governorship Election Tribunal, as delivered on
22 March, 2019. So, I would restrict myself to commenting on just the
import of the provisions of section 140 (1), (2) and (3), as well as on
some other relevant sections, of the Act on powers of an Election Tribunal
to deduct/cancel votes cast in some areas/portion in an election and still
declare a candidate winner of an election based on the un-cancelled
votes/areas.
I first reproduce the entire section 140 (1), (2) and (3) of the Electoral
Act, 2010, as amended:
“(1) Subject to subsection (2) of this section, if the Tribunal or the
Court as the case may be, determines that a candidate who was returned as
elected was not validly elected on any ground, the Tribunal or the Court
shall nullify the election.
(2) Where an election tribunal or court nullifies an election on the
ground that the person who obtained the highest votes at the election was
not qualified to contest the election, or that the election was marred by
substantial irregularities or non-compliance with the provisions of this
Act, the election tribunal or court shall not declare the person with the
second highest votes or any other person as elected, but shall order a
fresh election.
(3) If the Tribunal or the Court determines that a candidate who was
returned as elected was not validly elected on the ground that he did not
score the majority of valid votes cast at the election, the Election
Tribunal or the Court, as the case may be, shall declare as elected the
candidate who scored the highest number of valid votes cast at the
election and satisfied the requirements of the Constitution and this Act.”
I respectfully submit that section 140 (2) of the Electoral Act, as
amended is NO longer part of the Act, having been declared null and void
in 2011 for its inconsistency with the Constitution of the Federal
Republic of Nigeria, 1999, as amended. In the case of LABOUR PARTY V. INEC
& ORS, the Federal High Court, sitting in Abuja had on Thursday, 21 July
2011, had declared that sections 140 (2) and 141 of the Electoral Act,
2010, as amended, were null and void for being inconsistent with sections
134 and 179 of the Constitution which imbues the judiciary/court with
powers to declare the person with majority votes winner of an election
process Constitution. The court had then ordered that the two sections of
the Electoral Act should not be binding on any Election Tribunal.
Delivering judgment on the matter, the presiding trial judge, Hon Justice
Gabriel Kolawole, had held that the National Assembly of the Federal
Republic of Nigeria was bereft of any legislative competence to dictate to
the Court of law decision the Court should take over a suit filed before
it. Describing sections 140(2) and 141 of the Electoral Act, 2010 as an
affront on the concept of separation of powers, the judge stated that the
two sections smacked of legislative tyranny, in the sense that they
removed the constitutionally guaranteed powers of the court to declare any
candidate winner of an election. The judge further stated that what the
National Assembly had done in this instance was to deliberately interfere
with judicial affairs. While noting further that the two sections were
nothing but legislative judgment, the judge had concluded thus:
“Sections 140 (2) and 141 of the Electoral Act 2010 delimits power of the
court to adjudicate dispute between parties in an Election Petition. It,
therefore, derogates powers enshrined in Sections 4 [8] and 6 (1) of the
1999 Constitution. The decision a court can arrive at in any dispute is
based on the peculiar facts and evidences presented before it, it is not
what any parliament can technically determine. Once an Election Tribunal
is seised with a matter in line with provisions of section 239 and 385 of
the constitution, it can no longer reside with the legislature to curtail
or abridge the powers of that court. I, therefore, find Sections 140 (2)
and 141 needless and an unnecessary intrusion, it is my view that Election
Tribunals can operate effectively without these two provisions.
Consequently, it is hereby declared inconsistent with the provisions of
the 1999 Constitution and, therefore, null and void. The various election
tribunals shall not be bound by the provisions of Sections 140 (2) and
141, it is thus accordingly struck-down, same being unconstitutional.”
(See
<http://www.vanguardngr.com/20
accessed on 23 March 2019);
(<https://allafrica.com/storie
2019)
There has not been any judgment on appeal in this case. It is doubtful it
was ever appealed against. So, the 2011 judgment of the Federal High Court
remains and represents the law on the subject till today; the decision a
court can arrive at in any dispute is based on the peculiar facts and
evidences presented before it, the court having, as the Federal High court
said, the constitutionally guaranteed powers to declare any candidate
winner of an election in line with sections 134 and 179 of the 1999
Constitution. It must however be noted that in the case of JEV v. IYORTYOM
& 2 ORS (2014) 5-6 SC. PT III), the attention of the Supreme court was
drawn to the 2011 judgment of Kolawole, J. in Labour Party v. INEC and
this is what Fabiyi JSC had to say about the judgment:
“EXHIBIT 2, the judgment of the Federal High Court, delivered on the 21st
July 2011 is a ‘joker’ relied upon by the applicant to initiate his
application. I dare say that this court was unaware of same. I do not
agree with senior counsel to the applicant that the court was ignorant of
same. A Judge is not a robot. Once an exhibit is placed before him, he
must read and carefully consider it. I took time to read Exhibit 2 very
well. The learned trial Judge did not touch on the non-joinder of the
National Assembly as well as the locus standi of Labour Party. Since the
judgment is not on appeal before this court, I maintain a stoic stance and
hereby keep my peace.”
I think the crucial part of this orbiter dictum by Fabiyi, JSC, in this
case is that “since the judgment is not on appeal before this court, I
maintain a stoic stance and hereby keep my peace.” I therefore submit that
the Supreme court in the case of JEV v. IYORTYOM & 2 ORS did not upturn
the 2011 judgment of Kolawole, J. The judgment still subsists, even if one
considers it bad law, until set aside or overruled. A slightly similar
scenario had played out in MAYAKI & OTHERS v. REGISTRAR, YABA MAGISTRATE
COURT, (1996) 2 NWLR (Pt 130) 43 where the Court on appeal had described
the judgment of the trial Magistrates’ Court as a “judicial rascality,”
but nevertheless refused to set the judgment aside.
On the other hand, I submit that section 140 (2) of the Electoral Act,
even if it is held to still be effective, is IRRELEVANT to the majority
decision in Osun. This is because, in my humble opinion, section 140 (2)
can only be USED or be applied in these three instances:
(1) Where an election tribunal or court nullifies the ENTIRE election on
the ground that the person who obtained the highest votes at the election
was not qualified to contest the election, or
(2) Where an election tribunal or court nullifies the ENTIRE election on
the ground that election was marred by substantial irregularities or
(3) Where an election tribunal or court nullifies the ENTIRE election on
the ground that there was SUBSTANTIAL non-compliance with the provisions
of this Act.
Based, on that section, I think it is only where ANY ONE of the above
three options applies that the election tribunal or court is mandated to
not declare the person with the second highest votes as elected, but to
order a fresh election. In my humble view, none of those three instances
WAS PRESENT in the OSUN State scenario. Accordingly, section 140(2) does
not apply. Reasons:
a) In Osun State, the Tribunal’s decision DID NOT nullify the ENTIRE
election as invalid. Only the rerun election was canceled; so, section
140(2) is inapplicable;
b) In the Osun State case, the Tribunal’s decision did not declare that
the person earlier declared winner (Oyetola) was not qualified to contest.
So, Section 140(2) is irrelevant here;
c) The Tribunal’s decision in Osun did not declare that there was
substantial non-compliance of the entire election, with the Electoral Act.
The Tribunal’s decision was only that some part (namely THE RERUN ELECTION
in 7 wards) did not comply with the Electoral Act. It was only the seven
(7) wards adversely affected, and NOT THE ENTIRE GOVERNORSHIP ELECTION,
that was canceled and deducted So, section 140(2) has no relevance here.
Second, it is respectfully submitted that section 140 (1) of the Act
applies to only situations where the Tribunal determines that the entire
election has to be voided/nullified on grounds that the candidate who was
returned (by the electoral umpire) as elected was not validly elected on
any ground. Such grounds that could give rise to a decision
voiding/nullifying the entire results of an election include the
following, as set out by section 138 (1) (a), (b), (d) & (e) of the
Electoral Act:
a)that a person whose election is questioned was, at the time of the
election, not qualified to contest the election;
b)that the election was invalid by reason of corrupt practices or
c) noncompliance with the provisions of this Act; and ….
d)that the petitioner or its candidate was validly nominated but was
unlawfully excluded from the election.
e)that the person whose election is questioned had submitted to the
commission affidavit containing false information of a fundamental nature
in aid of his qualification for the election.
It must however be note that as provided by section 139 (1) of the Act,
“an election shall not be liable to be nullified/invalidated by reason of
non-compliance with the provisions of this Act if it appears to the
Election Tribunal or Court that the election was conducted substantially
in accordance with the principles of this Act and that the non-compliance
did not affect substantially the result of the election.” A plain
interpretation of the actual import of section 39 (1) of the Electoral Act
(as amended) is, in my humble opinion, that an Election Tribunal clearly
possesses the power to decide that:
a)Although the conduct of an election is not wholly/entirely in compliance
with the Electoral Act, yet, the election is sufficiently valid to produce
a winner on grounds that the conduct of the election has substantially
complied with the Act. In other words, the Tribunal is entitled to decide
that a portion of the election IS in compliance while the other portion IS
NOT. Accordingly, where the Tribunal holds that the portion that is in
compliance with the Electoral Act is substantial to produce a winner, the
Tribunal can validly declare as winner, the person with majority of the
votes cast in the portion in which the Tribunal finds that the election
was validly conducted. For this purpose, where the Tribunal in exercise of
its powers under section 139(1) finds that a particular portion of the
election or its conduct IS NOT in compliance with the Electoral Act, the
Tribunal has the power to nullify the affected portion and thereafter
determine whether the other portion, the SAVED, un-nullified portion, is
sufficiently substantial to ground a declaration that a person has won the
election. I think, respectfully, this is what the Osun State Governorship
Election Tribunal did on 22 March 2019 when it found in its wisdom
(rightly or wrongly) that a certain portion of the conduct of the
gubernatorial election in Osun State (specifically, the re-run portion of
the election) had violated the law and as such was liable to be nullified
with the consequence that all votes cast in the affected portion/areas be
deducted from the total votes cast while the other portion (the areas not
adversely affected) was now relied upon to determine the winner of the
election. It is therefore clear, I submit, that an Election Tribunal
possesses the power to cancel or deduct the votes cast in an election
conducted in any area in violation of the Electoral Act. However, whether
the Tribunal properly applied the powers to deduct votes in a cancelled
area and whether the tribunal’s reasons for cancelling elections conducted
in the area it cancelled is now a matter which depends of the facts of
this case, and in respect of which the appellate Courts are in the best
position resolve.
b)Even though the tribunal found that a portion of the areas/ conduct of
the election did not comply with the provisions of the Electoral Act, and
was therefore nullified, such nullified area and votes cast within the
area which were deducted from the total votes cast as a result of such
non-compliance “did not substantially affect the result of the election.”
Accordingly, where the ‘illegal” votes cancelled/deducted as a result of
partial non-compliance is not sufficient to “substantially adversely
affect the result of the election, the tribunal is entitled to declare any
person winner based on the un-affected, the un-cancelled, votes. Please,
note that whenever the tribunal cancels and deducts the votes cast in
elections conducted in a portion of the State in breach of the Act, the
necessary implication is that the un-canceled portion would now be deemed
to be the only valid votes for the purpose of application of section
140(3) of the Act.
Respectfully, therefore, I think section 139(1) impliedly gives the
Tribunal powers to cancel part of an election (found to be against law)
and to declare a person winner based on the un-canceled part of the
Tribunal finds that the votes secured in the un-canceled part
substantially complied with the Electoral Act!
Further, section 140 (3) of the Act empowers the Election Tribunal to
declare as elected the candidate who scored the highest number of valid
votes cast at the election conducted in the portion where no such
cancellation as a result of illegality happened if it finds that the votes
cast in the portion where conduct of elections is held to have “satisfied
the requirements of the Constitution and of this Act” were substantial
enough to justify such a declaration. Besides, section 138(1) (c) provides
as a ground for an election petition that the petitioner could be declared
winner if the tribunal finds “that the respondent was not duly elected by
majority of lawful votes cast at the election.” This is a clear
indication that the Tribunal could declare some votes unlawful and
invalid, and proceed to rely on the “lawful, valid votes” to determine the
winner.”
One may hence reasonably conclude that by combined effects of section 138,
139 and 140 (1) and (3) of the electoral Act, as amended, an election
Tribunal possesses powers to cancel or nullify a part of an election it
find does not comply with the provisions of the Act, and, may indeed
declare any person winner of an election based on the un-cancelled
portion, if it appears to the Election Tribunal or Court that the election
was conducted substantially in accordance with the principles of this Act
and that the cancellation of votes in some part as a result of
non-compliance did not substantially adversely affect the overall result
of the election. Accordingly, the statement being circulated by my
friends, to the effect that “section 140 (2) of the Electoral Act, 2010
(as amended) does not permit the Tribunal to deduct votes and still
declare a winner” is obviously unfounded, baseless, and, as the Court had
held in Labour Party v. INEC (supra), an Election Tribunal “shall not be
bound by the provisions of Sections 140 (2).”
However, speaking specifically of the Osun State case, the Governorship
Election Tribunal had on 22 March 2019 declared as winner, the candidate
of the People’s Democratic Party (PDP), Senator Ademola Adeleke, holding
that the candidate of the All Progressives Congress (APC), Mr. Gboyega
Oyetola, was not validly returned. It would be recalled that in the first
ballot in the Osun State Governorship Election, the PDP candidate had won
majority valid votes (254,698) while Mr. Oyetola of the APC had come a
close second (with 254,345 votes). However, the INEC Retuning Officer had
declared that Mr. Adeleke’s margin of lead (354 votes) was lower than the
total number of cancelled votes (which were put at 3,498). This was what
led to the Independent National Electoral Commission’s (INEC’s) decision
to conduct a re-run election in the affected seven polling units. What the
tribunal did in its majority judgment of 22 March 2019 was to declare that
the rerun election that was held on September 27, 2018 was illegal. The
Tribunal consequently cancelled/deducted all the votes scored by both the
APC candidate and the PDP Candidate at the areas affected by the rerun.
With the cancellation of the rerun election by the tribunal, the initial
ballot/result was recognized thus leading the Tribunal to declare Mr.
Adeleke of PDP the winner of the election. (see
https://www.premiumtimesng.com
accessed on 23 March 2019).
Based on my explanation above and in view of the facts of the case and the
ratio decidenci for the judgment as reported in the newspapers on 22 March
2019, I believe the main business before the appellate courts in this
case, if the APC Candidate goes on appeal, as he is expected to, would be
to determine whether the majority decision of Tribunal was right in having
decided that it had found sufficient evidence of non-compliance with the
Electoral Act to justify the cancellation of the rerun elections and
deduction of the votes scored therein. I leave that question for the
appellate courts to decide.
Respectfully,
Sylvester Udemezue
(23/March/2019)