Kaduna state governorship election judgement: Head or tail Uba Sani wins

Head or tail, Isa Ashiru Kudan, the Peoples Democratic Party (PDP) governorship candidate’s appeal of the judgement of the Justice Victor Oviawe Governorship Election Tribunal Panel is dead on arrival. Before delving into the substance of my submission as to why this is so, it’s important to stress that the confusion on the well considered judgement of the tribunal, and the consequences of its various pronouncements, is strictly and unfortunately the making of some partisan online journalists and overzealous party supporters; who displayed their ignorance and poor understanding of the provisions of the Electoral Act, just because they wanted their candidate declared winner at all cost.

I must, however, commend the media houses whose reports rescued the profession from the initial embarrassing reports that had created confusion as to the true situation of things, which could have led to a breakdown of law and order, though the misinformation led some supporters of the PDP candidate to call on Governor Uba Sani to immediately vacate the Government House, preparatory to the run off election. If not for the commendable efforts the media houses and their knowledgeable reporters, the profession and its practitioners would have been subjected to further ridicule.

One of the PDP lawyers, Barrister Baba Aliyu, equally deserves some credit, for helping to clear the air over the needless controversy. He acknowledged that while Isa Ashiru Kudan’s petition found some merit, the tribunal decision amounts to absolutely nothing, if the PDP is unable to vacate the consequential judgement that declared its petition abandoned and thus dismissed it. He said: “We cannot activate the majority decision that declared the election inconclusive, unless we successfully vacate the decision that declared our petition abandoned”. Without doubt, the PDP has a tall mountain to climb.

Clearly, the wide interest in the Kaduna state governorship judgement further confirmed the continued strategic position of Kaduna state in the politics of Nigeria, and the fact that it has successfully retained the powers it acquired from its days as the headquarters of the defunct Northern Region, whose powerful premier, Sir Ahmadu Bello, preferred to remain in Kaduna, while his deputy, Abubakar Tafawa Balewa, presided over the country.

The interest confirmed the statement that when Kaduna state, the undisputed heartbeat of Nigeria’s politics, sneezes, the rest of the country catches cold.

Barrister James Kanyip, the Deputy Chief of Staff to Governor Uba Sani, a very clear headed lawyer, characteristically, interpreted the judgement of the tribunal in a manner that helped everyone understand it.

Kanyib’s simple question that helped clear the ambiguity, for the good people of Kaduna state and, indeed, all Nigerians, as to who won and who lost at the tribunal is: “between the PDP and Isa Ashiru Kudan, its governorship candidate, and the APC and Governor Uba Sani, who would lose out if no appeal is filed at the Court of Appeal, challenging the tribunal’s judgement?”

For Kanyip, going by the decision of the tribunal, Isa Ashiru Kudan is the logical loser if he doesn’t appeal and get the Court of Appeal to upturn the 2:1 majority judgement, which dismissed his petition, due to the inexplicable failure of his lawyers to fully comply with the provisions of paragraph 18 of the First Schedule to the Electoral Act, 2022 and not Governor Uba Sani. It is noteworthy that Baba Aliyu, one of the PDP lawyers, wholesomely agrees with this position.

So, the first burden, which seems a bridge too far, which the PDP and Isa Ashiru Kudan have to cross, is ensuring that the 2:1 judgement is set aside by the Court of Appeal. If and when it crosses this bridge, then it can start worrying about the rerun. Failure to convince the court, would definitely have sealed their ambition to unseat Uba Sani.

The truth is that head or tail, it’s difficult, as things stand today, to see Isa Ashiru Kudan’s pathway to victory, because a thorough examination of the run off scenario doesn’t equally look favourable to the PDP and Isa Ashiru Kudan, assuming the Court of Appeal and the Supreme Court agree with the 2:1 judgement that the election was inconclusive.

Meanwhile, it’s important to stress that based on the tribunal judgment, the victory of Uba Sani as the governor of Kaduna state thus subsists unencumbered, and INEC would have no power whatsoever to conduct any governorship rerun election in Kaduna state.

The confusion that trailed the judgement for many Nigerians was due to the lack of awareness of the new standing rule by the Supreme Court that insists on election tribunals, in spite of failure by petitioners to file their petitions in accordance with the Electoral Act, to still go ahead and look at the merits of petitions, as in the case of Isa Ashiru Kudan.

It’s this rule of the Supreme Court that informed the decision of the tribunal to inquire into the merit of the case, despite having dismissed the PDP and Isa Ashiru Kudan’s petition, based on their proven failure to comply with the provisions of the almighty paragraph 18 of the Electoral Act of 2022. The tribunal simply decided, out of the abundance of caution, to look into the merit of the petition, in the event that the Court of Appeal or the Supreme Court, the final arbiter, in its wisdom decides to overrule its well considered decision to dismiss the petition.

Before now, the only option left for the tribunal, having agreed that the petitioners failed to fully comply with the law, was to have terminated the petition, especially as having declared the petition abandoned, and dismissed it, the tribunal would at that point be functus officio.

Going forward, the Supreme Court has a duty to enlighten Nigerians on the provisions of the Electoral Act. It’s in the interest of the judiciary and indeed all Nigerians that the apex court embarks on this enlightenment campaign, otherwise Nigerians will continue to question the judgement of the various courts, which has continued to impugn on credibility of the judiciary and confidence in the electoral system. For instance, the impression of many Nigerians who couldn’t understand why the tribunal delved into the substantive matter having earlier declared the petition abandoned, was that the tribunal spoke from the two sides of its mouth, because the judges had “been settled”.

But, assuming the Supreme Court rules that the rerun election will hold, Kaduna state has 4,164,473 registered voters, of which only 2,498,683 collected their Permanent Voters Card (PVCs). And only 1,468,312 participated in the governorship elections. So, while in the opinion of the tribunal, 16,300 votes are substantial enough to affect the election outcome, the reality is that only about 5,868 voters of the 9,780 voters who collected their permanent voters card are eligible to participate in the rerun election. And of the 5,868 voters that are eligible to participate in the rerun, the turnout might even be lower, taking into consideration the expected voter apathy, those that might have died, and those that have relocated.

The tribunal was obviously denied the benefit of this fact, because the APC, didn’t file a cross petition.

This explains why Isa Ashiru Kudan, the PDP candidate, intends to vigorously challenge the entire judgement, because as it stands, head or tail, he is still miles away from achieving his dream. Assuming, without conceding, that Isa Ashiru Kudan manages to get the 5,868 voters in question, assuming none of them has relocated or died, the rerun will also not in anyway change the outcome, as Uba Sani, with his over 11,000 votes lead would still comfortably win the election to be declared elected as governor.

This writer is of the firm belief that the Court of Appeal will most certainly agree with the tribunal that the PDP petition was, indeed, abandoned, going by decided cases and in the light of the new facts that the Court of Appeal will discover. We are equally convinced beyond doubt, that the appellate court will without any hesitation set aside the tribunal’s judgement declaring the election inconclusive.

This confidence stems from the fact that, at the material point, when the tribunal declared the election inconclusive, it lacked further jurisdiction to entertain the matter, because the application for pre-hearing notice is a condition precedent. And that’s what Paragraph 18 (4) in a nutshell is saying to the PDP; you can’t build something on nothing, because you woefully failed to activate the condition precedent for the tribunal to hear your petition on its merit.

There is no doubt that APC and Uba Sani, the respondents, were generous in putting the PDP and Isa Ashiru Kudan on notice at the commencement of the petition that it was going to heavily build its case around its Notice of Preliminary Objection, which challenged the competence and, by extension, the jurisdiction of the tribunal to hear and determine the petition.

The APC Preliminary Objection was predicated on several grounds, one of which was that the petitioners’ failure to apply for the issuance of the mandatory pre-hearing notice within the prescribed time, as stipulated in paragraph 18 of the First Schedule to the Electoral Act, 2022, deemed it as abandoned, which if the tribunal agreed with, would lead to only one decision: outright dismissal of the petition of the petitioners. The court is not a Father Christmas.

The provisions of Paragraph 18 are mandatory; they are clear and unambiguous that the effect of failure to file pre-hearing notice is the dismissal of the petition. To show how serious this provision is, the Act makes no provision for any extension of time for petitioners to remedy any lapse(s).

It must be stressed that APC didn’t ambush the PDP, rather it brilliantly capitalised on this fundamental error by the PDP and Isa Ashiru Kudan. And to show the seriousness that it attached to the legal goof by the PDP and Isa Ashiru Kudan, the APC and Uba Sani strategically refused to cross petition. If the APC had cross petitioned, it would have asked for the cancellation of Chikun local government area results, where the PDP posted an unprecedented 71,000 votes. The mutilated Chikun local government area results wouldn’t have withstood a judicial scrutiny, because the PDP operators, who managed the operation did a bad job.

It must also be stressed that justice has not been, and will not be, sacrificed on the altar of technicality, if the Court of Appeal or the Supreme Court throws out the PDP case. The blame for the outcome lies squarely on the PDP’s failure to pursue its case with diligence, knowing that paragraph 18 is unforgiving.

Technicalities, it must be stated, is an integral part of the electoral law, otherwise, the lawmakers would not have given it the weight they gave it. Governor Uba Sani, who took part in drafting the law, has clearly showed a good grasp of the Electoral Act.

There are strong reasons for optimism that the Court of Appeal will not ignore the procedural breach by the petitioner, because the law is the law. But assuming the Court of Appeal agrees with the tribunal’s voyage that the election was inconclusive and that the electoral commission ought not to have declared a winner until it had conducted elections in the 22 polling units that were cancelled, its order, for a re-run in 24 polling units of seven wards in four LGAs, will certainly not change the outcome of the election.

The law only requires Uba Sani to score a simple majority of the votes cast and the requisite spread to win, which said requirements he has already gotten in the event of any rerun. In 2019, Abdullahi Ganduje was declared governor of Kano state after the rerun with a margin of less than 300 votes, same with Gboyega Oyetola of Osun state.

In my humble view, the rerun will be a precious waste of resources.

Though head or tail, Isa Ashiru Kudan would lose, he, nevertheless, deserves credit for his abiding faith in the judiciary, having never called his supporters into the streets.

Ado writes from Kaduna.