Supreme Court reserves judgement on Kano governorship appeal

The Supreme Court on Thursday reserved judgement on an appeal filed by Kano State Governor Abba Yusuf challenging his sacking from office by two lower courts.

Mr Yusuf, a member of the New Nigeria Peoples Party (NNPP), was declared winner of the Kano State governorship election held on 18 March by Nigeria’s electoral commission, INEC.

But the All Progressives Congress (APC) governorship candidate at the poll, Nasiru Gawuna, challenged the outcome of the election, alleging electoral malpractices.

The Kano State Governorship Election Petitions Tribunal and the Court of Appeal in Abuja, upheld Mr Gawuna’s case, and nullified Governor Yusuf’s election.

Thursday’s hearing

At the hearing of the substantive appeal on Thursday, a five-member panel of the Supreme Court headed by John Okoro adjourned the suit for judgement after taking strenuous arguments from lawyers to the parties to the appeal.

A date for the judgement is to be communicated to the lawyers to the parties as soon as the verdict is ready for delivery.

Earlier, Governor Yusuf’s lawyer, Wole Olanipekun, said there was no legal basis for the tribunal and the appellate court to invalidate his client’s election on account of non-compliance with electoral guidelines.

“This is the first time in the annals of Nigeria’s electoral jurisprudence that an election was nullified on the basis that ballot papers were not stamped, dated and signed by INEC,” Mr Olanipekun, a Senior Advocate of Nigeria (SAN) told the court.

He said the electoral guidelines did not envisage the cancellation of an election on the grounds that the electoral umpire failed to stamp or sign the ballots.

At the trial of the case, the tribunal set aside Mr Yusuf’s victory after declaring 165,616 of his votes invalid. The Court of Appeal affirmed the tribunal’s decision.

But while arguing before the Supreme Court on Thursday, Mr Olanipekun said an expert witness testified at the tribunal that only a fraction of votes – 1,886 ballots – were not signed, yet the courts nullified 165,616 votes.

Inquiring into the issue, Mr Okoro, leading the five-member panel, asked Mr Olanipekun whether the issue bordering on the source of the disputed ballots was raised at the tribunal.

“Nobody raised the legality of the ballots. Ballot papers cannot be invalidated. Ballot papers are in a bundle; there is no way any forgery can arise because it is from the same booklet,” Mr Olanipekun explained.

The lawyer wondered why the governor should be punished for the failure of the electoral commission to stamp, date and sign the ballots that were used for the conduct of the March election.

“Assuming without conceding that INEC was wrong in not stamping, dating or signing the ballot papers, would you visit the sin of the electoral commission on the litigant?

“The judgement of the lower court was unfair to the appellant (Mr Yusuf). We urge this (Supreme) court to upturn the judgement and upheld the election of Mr Yusuf,” Mr Olanipekun said.

On the issue of Mr Yusuf’s membership of the NNPP, Mr Olanipekun referenced a plethora of cases where the Supreme Court held that the membership of a political party cannot be challenged by another political party.

“The tribunal said it is not justiceable. It is a pre-election matter. There is a predicate complaint that Mr Yusuf’s membership card was forged. The lower court found that the card was not forged, yet the appellate court held that he was not a member of the NNPP.”

INEC claims ownership of disputed 165,616 votes

Addressing the Supreme Court panel on Thursday, INEC lawyer, Abubakar Mahmoud, a SAN, said all the ballots used in the conduct of the Kano State governorship election were provided by the electoral commission.

“The ballot papers belonged to INEC. Those were our ballot papers in the area where the election took place,” Mr Mahmoud said, replying to Mr Okoro’s question about the source of the disputed ballots.

He contended thay the appel court’s decision was at variance with the position of the Supreme Court on Peter Obi and Atiku Abubakar’s case against INEC, and President Bola Tinubu.

Mr Mahmoud further argued that it was not the duty of the electorate to check the source of a ballot at the polls before casting their ballots.

“The tribunal went beyond its powers in this adventure. The overriding duty of the court in election dispute is to give effect to the wishes of the electorate. What the court did was very upsetting and should not be allowed to stand.”

Speaking on the issue of Mr Yusuf’s membership of the NNPP, Mr Mahmoud said, “this clearly is an internal affair of the party; it is not a constitutional breach.”

He pointed out that the APC did not challenge the membership of Mr Yusuf when INEC published his name on its website prior to the 18 March polls.

“I submit that this appeal should be allowed; it is meritorious because it is a reflection of the will of the people of Kano State,” Mr Mahmoud said.

APC defends lower courts’ decisions

However, Mr Gawuna’s lawyer, Akin Olujinmi, a SAN, prayed the Supreme Court to dismiss the appeal and affirm the concurrent findings of the courts.

Citing Section 42 of Electoral Act and regulation 19 of INEC, Mr Olujinmi argued that the electoral umpire ought to have stamped, dated and signed the ballots that are being disputed.

He said the returning officers at the Kano State polls should have stamped, dated and signed the 165,616 ballots.

Mr Olujinmi disagreed with Mr Olanipekun that only 1,886 votes were said not to have been endorsed by INEC.

“When the witness was cross-examined at the tribunal, the expert witness said 165,616 votes. That evidence remains unchanged. The findings were that many of the ballot papers were not signed.”

Mr Olujinmi noted that “these were irregularities that were manifest in the conduct of the election. This amounts to non-compliance with the Electoral Act.”

Referencing section 177 (c) of the Nigerian constitution, Mr Olujinmi contended that the lower court had jurisdiction to hear and determine the issue of Mr Yusuf’s membership of the NNPP.

“The NNPP produced that membership register of Mr Yusuf and his name was conspicuously absent. Mr Yusuf did not address the court on the issue.

“When the issue has to do with the constitution, the court has a duty to look at the issue and determine it.

“It is no longer an internal affair of a political party because it touches on a provision of the Nigerian constitution – membership of a political party,” Mr Olujinmi said.

The appeal lapses on 14 January, 2024. Therefore, the Supreme Court must deliver judgement on the suit within the statutory 60 days it has to determine appeals on governorship election disputes.

Reacting to the controversy that trailed the Court of Appeal verdict where the concluding portion of the certified copy of the decision upheld Mr Yusuf’s election, Mr Okoro said “any order that will serve the justice of the case will be made” in the substantive case.

Background

On 17 October, a three-member panel of the Court of Appeal in Abuja led by Moore Adumein sacked Mr Yusuf as governor of Kano State.

Mr Adumein declared Mr Gawuna of the APC winner of the 18 March governorship election in the state.

The tribunal had declared Mr Gawuna the winner of the election after invalidating votes cast in favour of Mr Yusuf.

But the Court of Appeal, in addition to that, disqualified Mr Yusuf as a candidate in the election, on the grounds that he was not a member of the NNPP as of the time of the election.

The court added without being a member of a political party, Mr Yusuf could not have been validly nominated to run for the election in March.

“Yusuf Abba was not a member of the NNPP as of the time he was purportedly sponsored for 18 March Kano State governorship election,” Mr Adumein had ruled.