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The Cost Of Conflicting Judgements To INEC, Candidates (Part 1)

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By and large, conflicting judgement is a situation in which one has two opposite feeling or is at variance with an opinion one forms in final determination of the rights and obligations of the parties in a case.
On March 16, 2016, Chairman of the Independent National Electoral Commission (INEC) Prof. Mahmood Yakubu, berated the Judiciary, even as he described as worrisome, the level of conflicting judgments emanating from various divisions of the Court of Appeal in respect of the 2015 general elections.

Professor Yakubu who raised the alarms during the opening ceremony of the National Conference on Election Petitions Tribunals and Appeals, held at the Abuja Court of Appeal said the development has the potential to negatively impact upon the credibility of the Judiciary and by extension, the electoral system and conduct of elections in Nigeria.
Yakubu said there was need for certainty in the laws governing the resolution of electoral conflicts, noting that some of the reasons given by courts on why some elections were annulled and re-run ordered, were highly disturbing.

INEC boss gave an instance where a particular division of the appellate court ordered INEC to conduct fresh election, “in which only the duly qualified candidates participated”, only for another division of the court, under similar circumstance, to nullify the election, disqualified the candidate and allowed the political party to submit the name of another candidate for a re-run poll. “Yet in another division, the Court of Appeal nullified the election, ordered INEC to conduct fresh election, but remained silent about the status of the disqualified candidates, thereby giving room for endless commentary and new rounds of litigation on the eligibility of the disqualified candidate to participate in re-run elections.”

The INEC boss decried that conducting re-run elections places a heavy financial burden on the commission. He said there were instances where elections were nullified and INEC was ordered to conduct a re-run simply for the sake of conducting elections in a specific polling unit. He said after wastage of time and resources, the outcome of such elections do not make any material difference to the original result that was declared by INEC in substantial compliance with the Electoral Act.
This is just as Yakubu led members of the commission to pay courtesy visit to the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen on January 18 this year ahead of the 2019 general elections.

Yakubu again asked the CJN to help address the spate of conflicting judgments on electoral cases in the country; saying the recurring decimal among courts of coordinate jurisdiction on the same subject-matter, especially in cases related to pre-election, post-election and leadership crises in political parties is nerve-wracking.
By the doctrine of judicial precedent, also called stare decisis, a situation under which a court must follow its earlier judicial decisions when same point arise again in litigation. The decisions of the Supreme Court are binding on all courts in Nigeria including the Supreme Court itself which can only depart from its earlier decisions if certain conditions are satisfied. This is the provision in Order 8 Rule 6 of the Supreme Court Rules 1985 (as amended).

The principle of stare decisis has helped the courts to streamline their decisions such as to avoid conflicting decisions on the same matter. Recent decisions by the judiciary in Nigeria seem to create the impression that the time honoured principle of law has been in the breach to some extent, because it is observed that there are departures from the principle especially on election matters.
Of course, a candidate who is disqualified by law from participating in a re-run election cannot do same, nor can his political party validly nominate another candidate to replace him. The Supreme Court aptly held same in Labour Party Vs INEC (2009) 6 NWLR (Part1137) 315, to the effect that where an election is nullified and fresh or re-run election ordered, no political party shall be allowed to substitute its candidates for the fresh or re-run election, the said judgement is binding on all courts in Nigeria with no exception.
The Court of Appeal applied the above decision in the case of Isiaq Vs Soniyi (2009) All FWLR (Part 498) 347 at 384. The Court of Appeal in the earlier laid it bare in ALWA’U AND ORS. V. YAKUBU AND ORS. (CA/K/EP/SHA/30/2003) where the Justices (per Isa Salami JCA, as he then was), ipsissima verba, held at page 31 of the lead judgment, as follows:
“I therefore order that the Independent National Electoral Commission conducts a fresh election to the Kaduna State House of Assembly Zaria Kewaye Constituency with all the candidates who sought election to the house from the Zaria Kewaye Constituency excluding I repeat excluding first respondent who was not qualified to stand the election at the close of nominations for the election of 3rd of May 2003”.

The rationale behind these decisions in Labour Party is because election is a process which starts with the issuance of time table to the declaration of winner which means is time bound. Curiously, the Court of Appeal decisions, arising from the 2015 general elections considered similar provisions with those considered in Labour Party Vs INEC but arrived at different conclusions.
In the case of Michael Kuforo Zidon Vs Kwamoti Bitrus La’ore & Ors (unreported) Appeal No. CA/A/EPT/577/2015 delivered on November 27, 2015, the appellate court nullified the election of the Respondent and ordered INEC to conduct fresh election within 90 days from the date of the judgement between the appellant and other qualified candidates of the political parties that contested the election held on March 28, 2015. Similar decision was arrived at by the Court of Appeal in the case of PDP & Anor Vs Barambu Umaru Kawuwa & Ors (unreported) Appeal No. CA/YL/EPT/GMB/HR/76/2015 delivered on October 29, 2015 where the court stated thus, ‘’I shall make an order for the conduct of fresh election by the 3rd Respondent, INEC, in which only duly qualified candidates shall participate within 90 days from the date of this judgement’’.

In the case of Muhammed Kabir Ibrahim & Anor Vs Hon. Matoh Dary Dogara & 2 Ors (unreported) Appeal No. CA/K/EPT/SHA/7/2015 delivered on December 4, 2015, the appeal court nullified the election, disqualified the candidate whose election was nullified and ordered INEC to conduct fresh election with the political party that sponsored the disqualified candidate.
In the case of Ibrahim Abdulmumini Alhaji & APC Vs Ahmed Mohammed, PDP & INEC (CA/A/EPT/632A/2015), the Court of Appeal, having found that a Candidate was lawfully disqualified by a Tribunal sitting in Lokoja, Kogi State, then proceeded as follows”
According to Justice James Shehu Abiriyi of the Court of Appeal; “On issue 3, I do not hesitate to disagree with the learned counsel for the 1st and 2nd Respondents that the Tribunal was right when it ordered the return of the 1st Respondent as winner of the election. This is because the Tribunal nullified the election. See page 474 of the record of appeal paragraph 1. After nullifying the election there was nothing on which it would declare the 1st Respondent winner; this issue is therefore resolved in favour of the Appellants. (With) issues 1 and 2 having been resolved in favour of the Respondent the appeal is dismissed. The decision of the tribunal nullifying the election is hereby affirmed. The Independent National Electoral Commission is however hereby ordered to conduct fresh elections for the ANKPA I constituency within 90 days”. The final Judgment of the Court was unfortunately bereft of the necessary consequential orders, which should have expressly precluded the 2nd Appellant Party from the contest, its candidate having been disqualified.

It is also strange that various Panels and Divisions of the Court of Appeal repeated the practice of not making a consequential order excluding a disqualified candidate from an election.
This is the case in Hon. Yusuf Ahmed Tijani Damisa & Anor V. Rt. Hon. Abdullahi Bello, APC & Anor (CA/A/EPT/648/2015): here, the Court was asked to consider whether the Tribunal at first instance, was right in dismissing the Petition of the Appellants challenging the election of the 1st Respondent, inter alia, on the grounds that no valid Primaries were held wherein the 1st Respondent was elected. Thus, they contended that the 1st Respondent was unqualified to stand for elections to any office as stipulated by Section 138 (1) (a) of the Electoral Act, 2010. Sequel to the provisions of Section 140 (2) of the Electoral Act, they prayed for the election to be nullified. Justice J.S Aribiyi of the Court of Appeal who read the lead judgment, in allowing the appeal, held that: “as the 2nd Respondent held no primary election the 1st Respondent was not qualified to contest the election. The appeal is allowed on this ground. The Judgment of the Tribunal is hereby set aside. In the circumstances, the election should in my view be nullified and a fresh election ordered…the Independent National Electoral Commission is ordered to conduct fresh election within ninety days from today for the Okene/Ogori Magongo Federal Constituency of Kogi State.” This decision, though on the face of it appears correct, however, no consequential order was made as to the status of the 1st Respondent or whether the 2nd Respondent was permitted to hold Primaries in order to substitute or legitimize its disqualified candidate, thus leading to confusion.



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