{"id":65738,"date":"2019-03-23T22:22:12","date_gmt":"2019-03-23T21:22:12","guid":{"rendered":"http:\/\/pointblanknews.com\/pbn\/?p=65738"},"modified":"2019-03-23T22:22:12","modified_gmt":"2019-03-23T21:22:12","slug":"a-brief-reflection-on-section-140-related-sections-of-the-electoral-act-2010-as-amended","status":"publish","type":"post","link":"https:\/\/pointblanknews.com\/pbn\/articles-opinions\/a-brief-reflection-on-section-140-related-sections-of-the-electoral-act-2010-as-amended\/","title":{"rendered":"A Brief Reflection on Section 140 & Related Sections of the Electoral Act, 2010, as Amended"},"content":{"rendered":"
\n
<\/div>\n
\n
(By Sylvester Udemezue)<\/p>\n

I have seen and read the following statement on more than four different
\nSocial Media platforms within the last 24 hours:<\/p>\n

\u201cMeanwhile, section 140 (2) of the Electoral Act, 2010 (as amended) does
\nnot permit the Tribunal to deduct votes and declare a winner.\u201d<\/p>\n

With due respect, I am unable to agree with those who hold or disseminate
\nsuch an opinion. I do not think that statement represents the true state
\nof Nigeria\u2019s electoral laws pertaining to powers of an Election Tribunal.
\nMeanwhile, beyond reports in the newspapers, I have not read the detailed
\ndecision of the Osun State Governorship Election Tribunal, as delivered on
\n22 March, 2019. So, I would restrict myself to commenting on just the
\nimport of the provisions of section 140 (1), (2) and (3), as well as on
\nsome other relevant sections, of the Act on powers of an Election Tribunal
\nto deduct\/cancel votes cast in some areas\/portion in an election and still
\ndeclare a candidate winner of an election based on the un-cancelled
\nvotes\/areas.<\/p>\n

I first reproduce the entire section 140 (1), (2) and (3) of the Electoral
\nAct, 2010, as amended:<\/p>\n

\u201c(1) Subject to subsection (2) of this section, if the Tribunal or the
\nCourt as the case may be, determines that a candidate who was returned as
\nelected was not validly elected on any ground, the Tribunal or the Court
\nshall nullify the election.<\/p>\n

(2)\u00a0 Where an election tribunal or court nullifies an election on the
\nground that the person who obtained the highest votes at the election was
\nnot qualified to contest the election, or that the election was marred by
\nsubstantial irregularities or non-compliance with the provisions of this
\nAct, the election tribunal or court shall not declare the person with the
\nsecond highest votes or any other person as elected, but shall order a
\nfresh election.<\/p>\n

(3)\u00a0 If the Tribunal or the Court determines that a candidate who was
\nreturned as elected was not validly elected on the ground that he did not
\nscore the majority of valid votes cast at the election, the Election
\nTribunal or the Court, as the case may be, shall declare as elected the
\ncandidate who scored the highest number of valid votes cast at the
\nelection and satisfied the requirements of the Constitution and this Act.\u201d<\/p>\n

I respectfully submit that section 140 (2) of the Electoral Act, as
\namended is NO longer part of the Act, having been declared null and void
\nin 2011 for its inconsistency with the Constitution of the Federal
\nRepublic of Nigeria, 1999, as amended. In the case of LABOUR PARTY V. INEC
\n& ORS, the Federal High Court, sitting in Abuja had on Thursday, 21 July
\n2011, had declared that sections 140 (2) and 141 of the Electoral Act,
\n2010, as amended, were null and void for being inconsistent with sections
\n134 and 179 of the Constitution which imbues the judiciary\/court with
\npowers to declare the person with majority votes winner of an election
\nprocess Constitution. The court had then ordered that the two sections of
\nthe Electoral Act should not be binding on any Election Tribunal.
\nDelivering judgment on the matter, the presiding trial judge, Hon Justice
\nGabriel Kolawole, had held that the National Assembly of the Federal
\nRepublic of Nigeria was bereft of any legislative competence to dictate to
\nthe Court of law decision the Court should take over a suit filed before
\nit. Describing sections 140(2) and 141 of the Electoral Act, 2010 as an
\naffront on the concept of separation of powers, the judge stated that the
\ntwo sections smacked of legislative tyranny, in the sense that they
\nremoved the constitutionally guaranteed powers of the court to declare any
\ncandidate winner of an election. The judge further stated that what the
\nNational Assembly had done in this instance was to deliberately interfere
\nwith judicial affairs. While noting further that the two sections were
\nnothing but legislative judgment, the judge had concluded thus:<\/p>\n

\u201cSections 140 (2) and 141 of the Electoral Act 2010 delimits power of the
\ncourt to adjudicate dispute between parties in an Election Petition. It,
\ntherefore, derogates powers enshrined in Sections 4 [8] and 6 (1) of the
\n1999 Constitution. The decision a court can arrive at in any dispute is
\nbased on the peculiar facts and evidences presented before it, it is not
\nwhat any parliament can technically determine. Once an Election Tribunal
\nis seised with a matter in line with provisions of section 239 and 385 of
\nthe constitution, it can no longer reside with the legislature to curtail
\nor abridge the powers of that court. I, therefore, find Sections 140 (2)
\nand 141 needless and an unnecessary intrusion, it is my view that Election
\nTribunals can operate effectively without these two provisions.
\nConsequently, it is hereby declared inconsistent with the provisions of
\nthe 1999 Constitution and, therefore, null and void. The various election
\ntribunals shall not be bound by the provisions of Sections 140 (2) and
\n141, it is thus accordingly struck-down, same being unconstitutional.\u201d
\n(See
\n<http:\/\/www.vanguardngr.com\/2011\/07\/court-rejects-sections-of-2010-electoral-act\/<\/a>>
\naccessed on 23 March 2019);
\n(<https:\/\/allafrica.com\/stories\/201107260828.html<\/a>> accessed on 23 March
\n2019)<\/p>\n

There has not been any judgment on appeal in this case. It is doubtful it
\nwas ever appealed against. So, the 2011 judgment of the Federal High Court
\nremains and represents the law on the subject till today; the decision a
\ncourt can arrive at in any dispute is based on the peculiar facts and
\nevidences presented before it, the court having, as the Federal High court
\nsaid, the constitutionally guaranteed powers to declare any candidate
\nwinner of an election in line with sections 134 and 179 of the 1999
\nConstitution. It must however be noted that in the case of JEV v. IYORTYOM
\n& 2 ORS (2014) 5-6 SC. PT III), the attention of the Supreme court was
\ndrawn to the 2011 judgment of Kolawole, J. in Labour Party v. INEC and
\nthis is what Fabiyi JSC had to say about the judgment:<\/p>\n

\u201cEXHIBIT 2, the judgment of the Federal High Court, delivered on the 21st
\nJuly 2011 is a \u2018joker\u2019 relied upon by the applicant to initiate his
\napplication. I dare say that this court was unaware of same. I do not
\nagree with senior counsel to the applicant that the court was ignorant of
\nsame. A Judge is not a robot. Once an exhibit is placed before him, he
\nmust read and carefully consider it. I took time to read Exhibit 2 very
\nwell. The learned trial Judge did not touch on the non-joinder of the
\nNational Assembly as well as the locus standi of Labour Party. Since the
\njudgment is not on appeal before this court, I maintain a stoic stance and
\nhereby keep my peace.\u201d<\/p>\n

I think the crucial part of this orbiter dictum by Fabiyi, JSC, in this
\ncase is that \u201csince the judgment is not on appeal before this court, I
\nmaintain a stoic stance and hereby keep my peace.\u201d I therefore submit that
\nthe Supreme court in the case of JEV v. IYORTYOM & 2 ORS did not upturn
\nthe 2011 judgment of Kolawole, J. The judgment still subsists, even if one
\nconsiders it bad law, until set aside or overruled. A slightly similar
\nscenario had played out in MAYAKI & OTHERS v. REGISTRAR, YABA MAGISTRATE
\nCOURT, (1996) 2 NWLR (Pt 130) 43 where the Court on appeal had described
\nthe judgment of the trial Magistrates\u2019 Court as a \u201cjudicial rascality,\u201d
\nbut nevertheless refused to set the judgment aside.<\/p>\n

On the other hand, I submit that section 140 (2) of the Electoral Act,
\neven if it is held to still be effective, is IRRELEVANT to the majority
\ndecision in Osun. This is because, in my humble opinion, section 140 (2)
\ncan only be USED or be applied in these three instances:<\/p>\n

(1)\u00a0 \u00a0 \u00a0Where an election tribunal or court nullifies the ENTIRE election on
\nthe ground that the person who obtained the highest votes at the election
\nwas not qualified to contest the election, or
\n(2)\u00a0 \u00a0 \u00a0Where an election tribunal or court nullifies the ENTIRE election on
\nthe ground that election was marred by substantial irregularities or
\n(3)\u00a0 \u00a0 \u00a0Where an election tribunal or court nullifies the ENTIRE election on
\nthe ground that there was SUBSTANTIAL non-compliance with the provisions
\nof this Act.<\/p>\n

Based, on that section, I think it is only where ANY ONE of the above
\nthree options applies that the election tribunal or court is mandated to
\nnot declare the person with the second highest votes as elected, but to
\norder a fresh election. In my humble view, none of those three instances
\nWAS PRESENT in the OSUN State scenario. Accordingly, section 140(2) does
\nnot apply. Reasons:
\na)\u00a0 \u00a0 \u00a0 In Osun State, the Tribunal\u2019s decision DID NOT nullify the ENTIRE
\nelection as invalid. Only the rerun election was canceled; so, section
\n140(2) is inapplicable;
\nb)\u00a0 \u00a0 \u00a0 In the Osun State case, the Tribunal\u2019s decision did not declare that
\nthe person earlier declared winner (Oyetola) was not qualified to contest.
\nSo, Section 140(2) is irrelevant here;
\nc)\u00a0 \u00a0 \u00a0 The Tribunal\u2019s decision in Osun did not declare that there was
\nsubstantial non-compliance of the entire election, with the Electoral Act.
\nThe Tribunal\u2019s decision was only that some part (namely THE RERUN ELECTION
\nin 7 wards) did not comply with the Electoral Act. It was only the seven
\n(7) wards adversely affected, and NOT THE ENTIRE GOVERNORSHIP ELECTION,
\nthat was canceled and deducted So, section 140(2) has no relevance here.<\/p>\n

Second, it is respectfully submitted that section 140 (1) of the Act
\napplies to only situations where the Tribunal determines that the entire
\nelection has to be voided\/nullified on grounds that the candidate who was
\nreturned (by the electoral umpire) as elected was not validly elected on
\nany ground. Such grounds that could give rise to a decision
\nvoiding\/nullifying the entire results of an election include the
\nfollowing, as set out by section 138 (1) (a), (b), (d) & (e) of the
\nElectoral Act:<\/p>\n

a)that a person whose election is questioned was, at the time of the
\nelection, not qualified to contest the election;
\nb)that the election was invalid by reason of corrupt practices or<\/p>\n

c) noncompliance with the provisions of this Act; and\u00a0 \u00a0\u2026.<\/p>\n

d)that the petitioner or its candidate was validly nominated but was
\nunlawfully excluded from the election.
\ne)that the person whose election is questioned had submitted to the
\ncommission affidavit containing false information of a fundamental nature
\nin aid of his qualification for the election.<\/p>\n

It must however be note that as provided by section 139 (1) of the Act,
\n\u201can election shall not be liable to be nullified\/invalidated by reason of
\nnon-compliance with the provisions of this Act if it appears to the
\nElection Tribunal or Court that the election was conducted substantially
\nin accordance with the principles of this Act and that the non-compliance
\ndid not affect substantially the result of the election.\u201d A plain
\ninterpretation of the actual import of section 39 (1) of the Electoral Act
\n(as amended) is, in my humble opinion, that an Election Tribunal clearly
\npossesses the power to decide that:<\/p>\n

a)Although the conduct of an election is not wholly\/entirely in compliance
\nwith the Electoral Act, yet, the election is sufficiently valid to produce
\na winner on grounds that the conduct of the election has substantially
\ncomplied with the Act. In other words, the Tribunal is entitled to decide
\nthat a portion of the election IS in compliance while the other portion IS
\nNOT. Accordingly, where the Tribunal holds that the portion that is in
\ncompliance with the Electoral Act is substantial to produce a winner, the
\nTribunal can validly declare as winner, the person with majority of the
\nvotes cast in the portion in which the Tribunal finds that the election
\nwas validly conducted. For this purpose, where the Tribunal in exercise of
\nits powers under section 139(1) finds that a particular portion of the
\nelection or its conduct IS NOT in compliance with the Electoral Act, the
\nTribunal has the power to nullify the affected portion and thereafter
\ndetermine whether the other portion, the SAVED, un-nullified portion, is
\nsufficiently substantial to ground a declaration that a person has won the
\nelection. I think, respectfully, this is what the Osun State Governorship
\nElection Tribunal did on 22 March 2019 when it found in its wisdom
\n(rightly or wrongly) that a certain portion of the conduct of the
\ngubernatorial election in Osun State (specifically, the re-run portion of
\nthe election) had violated the law and as such was liable to be nullified
\nwith the consequence that all votes cast in the affected portion\/areas be
\ndeducted from the total votes cast while the other portion (the areas not
\nadversely affected) was now relied upon to determine the winner of the
\nelection. It is therefore clear, I submit, that an Election Tribunal
\npossesses the power to cancel or deduct the votes cast in an election
\nconducted in any area in violation of the Electoral Act.\u00a0 However, whether
\nthe Tribunal properly applied the powers to deduct votes in a cancelled
\narea and whether the tribunal\u2019s reasons for cancelling elections conducted
\nin the area it cancelled is now a matter which depends of the facts of
\nthis case, and in respect of which the appellate Courts are in the best
\nposition resolve.<\/p>\n

b)Even though the tribunal found that a portion of the areas\/ conduct of
\nthe election did not comply with the provisions of the Electoral Act, and
\nwas therefore nullified, such nullified area and votes cast within the
\narea which were deducted from the total votes cast as a result of such
\nnon-compliance \u201cdid not substantially affect the result of the election.\u201d
\nAccordingly, where the \u2018illegal\u201d votes cancelled\/deducted as a result of
\npartial non-compliance is not sufficient to \u201csubstantially adversely
\naffect the result of the election, the tribunal is entitled to declare any
\nperson winner based on the un-affected, the un-cancelled, votes.\u00a0 Please,
\nnote that whenever the tribunal cancels and deducts the votes cast in
\nelections conducted in a portion of the State in breach of the Act, the
\nnecessary implication is that the un-canceled portion would now be deemed
\nto be the only valid votes for the purpose of application of section
\n140(3) of the Act.<\/p>\n

Respectfully, therefore, I think section 139(1) impliedly gives the
\nTribunal powers to cancel part of an election (found to be against law)
\nand to declare a person winner based on the un-canceled part of the
\nTribunal finds that the votes secured in the un-canceled part
\nsubstantially complied with the Electoral Act!<\/p>\n

Further, section 140 (3) of the Act empowers the Election Tribunal to
\ndeclare as elected the candidate who scored the highest number of valid
\nvotes cast at the election conducted in the portion where no such
\ncancellation as a result of illegality happened if it finds that the votes
\ncast in the portion where conduct of elections is held to have \u201csatisfied
\nthe requirements of the Constitution and of this Act\u201d were substantial
\nenough to justify such a declaration. Besides, section 138(1) (c) provides
\nas a ground for an election petition that the petitioner could be declared
\nwinner if the tribunal finds \u201cthat the respondent was not duly elected by
\nmajority of lawful votes cast at the election.\u201d\u00a0 This is a clear
\nindication that the Tribunal could declare some votes unlawful and
\ninvalid, and proceed to rely on the \u201clawful, valid votes\u201d to determine the
\nwinner.\u201d<\/p>\n

One may hence reasonably conclude that by combined effects of section 138,
\n139 and 140 (1) and (3) of the electoral Act, as amended, an election
\nTribunal possesses powers to cancel or nullify a part of an election it
\nfind does not comply with the provisions of the Act, and, may indeed
\ndeclare any person winner of an election based on the un-cancelled
\nportion, if it appears to the Election Tribunal or Court that the election
\nwas conducted substantially in accordance with the principles of this Act
\nand that the cancellation of votes in some part as a result of
\nnon-compliance did not substantially adversely affect the overall result
\nof the election. Accordingly, the statement being circulated by my
\nfriends, to the effect that \u201csection 140 (2) of the Electoral Act, 2010
\n(as amended) does not permit the Tribunal to deduct votes and still
\ndeclare a winner\u201d is obviously unfounded, baseless, and, as the Court had
\nheld in Labour Party v. INEC (supra), an Election Tribunal \u201cshall not be
\nbound by the provisions of Sections 140 (2).\u201d
\nHowever, speaking specifically of the Osun State case, the Governorship
\nElection Tribunal had on 22 March 2019 declared as winner, the candidate
\nof the People\u2019s Democratic Party (PDP), Senator Ademola Adeleke, holding
\nthat the candidate of the All Progressives Congress (APC), Mr. Gboyega
\nOyetola, was not validly returned. It would be recalled that in the first
\nballot in the Osun State Governorship Election, the PDP candidate had won
\nmajority valid votes (254,698) while Mr. Oyetola of the APC had come a
\nclose second (with 254,345 votes). However, the INEC Retuning Officer had
\ndeclared that Mr. Adeleke\u2019s margin of lead (354 votes) was lower than the
\ntotal number of cancelled votes (which were put at 3,498). This was what
\nled to the Independent National Electoral Commission\u2019s (INEC\u2019s) decision
\nto conduct a re-run election in the affected seven polling units. What the
\ntribunal did in its majority judgment of 22 March 2019 was to declare that
\nthe rerun election that was held on September 27, 2018 was illegal. The
\nTribunal consequently cancelled\/deducted all the votes scored by both the
\nAPC candidate and the PDP Candidate at the areas affected by the rerun.
\nWith the cancellation of the rerun election by the tribunal, the initial
\nballot\/result was recognized thus leading the Tribunal to declare Mr.
\nAdeleke of PDP the winner of the election. (see
\nhttps:\/\/www.premiumtimesng.com\/news\/headlines\/321637-breaking-tribunal-declares-pdps-adeleke-winner-of-osun-governorship-election.html<\/a>
\naccessed on 23 March 2019).<\/p>\n

Based on my explanation above and in view of the facts of the case and the
\nratio decidenci for the judgment as reported in the newspapers on 22 March
\n2019, I believe the main business before the appellate courts in this
\ncase, if the APC Candidate goes on appeal, as he is expected to, would be
\nto determine whether the majority decision of Tribunal was right in having
\ndecided that it had found sufficient evidence of non-compliance with the
\nElectoral Act to justify the cancellation of the rerun elections and
\ndeduction of the votes scored therein. I leave that question for the
\nappellate courts to decide.<\/p>\n

Respectfully,
\nSylvester Udemezue
\n(23\/March\/2019)<\/p>\n<\/div>\n<\/div>\n

<\/div>\n<\/div>\n
<\/div>\n","protected":false},"excerpt":{"rendered":"

(By Sylvester Udemezue) I have seen and read the following statement on more than four different Social Media platforms within the last 24 hours: \u201cMeanwhile, section 140 (2) of the…<\/p>\n","protected":false},"author":1,"featured_media":37584,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","footnotes":""},"categories":[7],"tags":[],"class_list":["post-65738","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles-opinions"],"yoast_head":"\nA Brief Reflection on Section 140 & Related Sections of the Electoral Act, 2010, as Amended - Pointblank News<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/pointblanknews.com\/pbn\/articles-opinions\/a-brief-reflection-on-section-140-related-sections-of-the-electoral-act-2010-as-amended\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"A Brief Reflection on Section 140 & Related Sections of the Electoral Act, 2010, as Amended - 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