Umeh vs. Ekwunife: the mystery judgment that cannot stand the scrutiny of an appeal – TOTAL POLITICS with Clem Aguiyi

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Since after that judgment delivered by the Anambra State National and State Assembly Election in the case of Victor Umeh vs.  Uche Ekwunife, my phone has been inundated with phone calls from concerned readers who wish to know my take on the Tribunal’s decision given my earlier forceful submissions on the issue.

I had restrained from making any comment on the judgment until I could have the opportunity of reviewing the 68 page document, especially the reasons given by the tribunal.

Having studied the judgment, I am personally dissatisfied as I found the reasons advanced by the tribunal as very weak and not connected to the issues pleaded which bothers strictly on Section 285 (13) of the 1999 Constitution as amended and S141 of the Electoral Act 2010 as amended.

Recall that, I had previously submitted in this column that it will take a mystery for a court to rule against the constitution, and unfortunately that was exactly what happened in the instant case where the three man tribunal drawn from Adamawa, Bayelsa and Ebonyi states high courts mysteriously abandoned the serious but not too difficult issues before it and chose to decide the case outside the pleadings and based on their conjectures.

Why? The devil, nay the mystery lies in the details. Did the state executives of the states where the judges were serving as high court judges teleguide the thoughts and decisions of the tribunal? Was the fact that these judges were from PDP controlled states have any influence in the final outcome?  Any discerning mind can easily connect the dots.

The good news is that such a bad judgment cannot stand the scrutiny of an appeal.  My position is vindicated by what played out in Akwa Ibom tribunal. Thank God for Justice Hafiz who revolted against his colleagues and against the mendacious interference of some elements desperate to teleguide and programme the decision of the tribunal. Justice Hafiz not only resisted their bribery he exposed it, and deserved a monument erected in his name.  The widely reported allegation against Justice Akanbi led tribunal in AkwaIbom is now subject of a petition before the NJC.

In the case of Umeh vs. Ekwunife, the Tribunal in her considered opinion held that Umeh failed to lead credible evidence to the effect that return of 1st Respondent (Ekwunife) by 2nd Respondent (INEC) who scored majority of lawful votes at the election was marred by corrupt practices.

My answer: This evidence was sufficiently proven by the petitioner. There were cancellations and mutilations in some areas due to violence. Elections were not conducted in some areas. All these facts were presented before the Tribunal with witnesses.  Besides, scoring majority of votes is of no consequence where the person having such votes was an interloper in the first instance. This was the case in Zamfara APC.

On the issue that Umeh failed to prove that the second respondent was not sponsored by a political party in the election.

My response; The issue before the tribunal which is Umeh’s grouse is that the 1st respondent did not participate in all stages of the election and is therefore in breach of Section 285(13) of the 1999 Constitution as amended in the 4th Alteration, and as such should not be declared winner by the Tribunal.

The petitioner by her admission did not participate in all stages of the election. When you have done things illegally it is not the duty of the court to aid you to benefit from illegality.  Laws are made to be obeyed by all concerned including political parties. Therefore the law shall take its cause where a party fails, neglects or refuses   to comply with the mandatory provisions of the electoral Act and the constitution on the nomination and submission of the names of its candidate for a general election. Such a political party shall be deemed or taken in law to have fielded no valid candidate in that particular election. The respondent participation at best muddled the process. This is the position of the law.

On the declaration of 1st Respondent, as duly elected and returned as Senator of Anambra Central Senatorial District.

My response is a follows: section 285(13) renders every other contrary laws or contrary judicial pronouncements irrelevant. “An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all the stages of the election.” In other words a  ‘person to be declared and returned as a winner of an election by court or a tribunal must have been a person who have participated as a candidate in all stages of the election.

The Supreme Court clarified the meaning of ‘all Stages of Election’ in Agbaso v Ohakim and ANPP v Osiri where it upheld the stages of election to entail, ones membership of a political party, indication of desire to be party’s candidate, primaries for the nomination of the party’s candidate, presentation of the candidate to INEC, the event of the election, return of the successful candidate after the election’.

Section 141 of the Electoral Act , now 285(13) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, provided that “An election tribunal or court shall not in 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 election.”

PDP I must admit has a right to conduct nominate or substitute its candidates for election and there is nothing wrong in being a substitute candidate. However, such a candidate must be eligible for substitution, meaning the candidate must have participated in the primary election which is a sine qua nom or condition precedent to either becoming a substitute or participation in the general election. You do not just metamorphose from nowhere to become substitute candidate. This is not the intention of the law when it makes participation in all stages of the election a compulsion.

The Supreme Court upheld this position in the case of Abiodun Faleke v INEC, where it ruled as follows “a person seeking to contest an election into the office of Governor of a State must be a member of a political party and must be sponsored by that party. Furthermore, he must have participated in the party’s primary elections. However, in the circumstances of the case, the appellant could not metamorphose into the Governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office.

See the recent judgment of Kano State Election Petition Tribunal in the case of Abdurrahman Kawu Sumaila where the tribunal dismissed the election of Sumaila on the ground that he did not participate in all stages of the election.

If the Tribunal or court found out that a candidate did not participate in any stage of the election process, the tribunal will be left with no option than to declare the next candidate with the highest number of vote as winner in the election or in the least nullify the election and order a fresh election.

I will encourage Chief Umeh to approach the Appeal Court to determine the specific issues whch the tribunal abandoned. I have implicit confidence in the Judiciary especially at the level of Appeal Court where we have many fine judges who are doing their level best to exact the independent mind that for long made our Judiciary a great institution.

I believe the judiciary has important role to play in the implementation of electoral reforms and stabilization of democracy in Nigeria. Democracy will survive and stabilize if we have independent minded judges who will dispense justice to all manner of men irrespective of political party affiliation and without fear or favor..

Democracy will elongate if the independence and vibrancy of the judiciary particularly the non interference with the thoughts and decision making processes of the courts are protected and guaranteed. The role of the Judiciary will be defeated if judges constitute themselves into business men auctioning judgment to the connected, rich and powerful.

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