Kano Election Judgement: Setting the Record Straight
By Tijjani Yahaya
It is no longer news that the Governorship Election Petition Tribunal, Kano in Petition No. EPT/KN/GOV/01/2023 delivered its judgement in respect of the above-named petition on the 20th September, 2023. It is also no longer news that the Tribunal in its considered judgement delivered by Hon. Justice O. Akintam Osadebay declared as follows:
1. That Abba Kabir Yusuf (2nd Respondent) was not duly elected by a majority of lawful votes at the election.
2. That the Petitioner, Nasiru Yusuf Gawuna (curiously Gawuna is not the Petitioner in the Petition and was not even a party to it) having scored a majority of lawful votes and having met the requirement of the Constitution is hereby declared the winner of the election and returned elected as the Governor of Kano State.
3. That the Certificate of Return issued to Abba Kabir Yusuf is hereby set aside as invalid and a nullity.
4. That I.N.E.C. is hereby ordered to immediately issue and serve a Certificate of Return in favour of Nasiru Yusuf Gawuna as the winner of the 2023 Gubernatorial election for Kano State held on the 16th of March, 2023.
I am privileged to be a member of the legal team that defended this petition under the leadership of Chief Adeboyega Awomolo, S.A.N. a renowned, experienced and revered lawyer and the Vice Chairman of the Body of Benchers, the body of Legal Practitioners responsible for the regulation and control of legal education in Nigeria, together with six other Senior Advocates of Nigeria (S.A.N.’s) and about thirty other lawyers with varying years of post-call experience ranging from more that forty years downwards.
There have been endless reactions and comments that followed the delivery of the judgement of the Tribunal that sought to overturn the overwhelming choice of the people of Kano State, for the second time now, the first being during the 2019 Governorship election when the present Governor of Kano State was robbed of his initial election as Governor of Kano State.
So much has been written, many commentaries have been made mainly on print media, television, radio and also on social media through voice messages, videos and the likes by way of either applauding or condemning the Tribunal’s judgement depending on which side of the political divide one is.
Politics aside, this write up is an attempt to set the record straight from the vantage position of one who sat through the Tribunal’s proceedings and being a very senior and experienced lawyer who has been engaged in election petitions for more than twenty years and has been in active legal practice for more than forty years.
I therefore feel I can, with a certain sense of modesty, claim to be in a very good position to objectively analyse the Tribunal’s judgement, if not for anything but to enlighten the majority of the populace as to what transpired in this most controversial Gubernatorial Election Petition in Nigeria’s history.
The panel of judges of the Tribunal have carried out the most perverse, non justifiable, horrendous miscarriage of justice that has no basis both on the facts of the petition, law (both substantive and procedural) and cannot stand the scrutiny and test that would be foisted on it by the more refined minds of the Court of Appeal Justices that would sit on appeal over it.
As it has been announced, the legal team of the N.N.P.P. has meticulously studied the Tribunal’s jaundiced, biased and unmeritorious judgement and had laboriously prepared more than (20) grounds of appeal that have more than 99% chances of succeeding as they have clearly brought the flaws and grievous errors of law committed by the Tribunal judges that cannot stand the scrutiny of the Court of Appeal which is more disposed to ensuring that it dispenses justice to any deserving litigant in accordance with the tenets of the law, justice and fair play and in the spirit of the known maxim that, “the judiciary is indeed the last hope for the common man.”
2. THE ERRORS OF THE TRIBUNAL
The Tribunal erroneously held that Abba Kabir Yusuf was not a member of the N.N.P.P. at the time of the election and was therefore not qualified to contest the said Governorship election which he won.
The Tribunal contradicted itself by this declaration in the judgement after it had already ruled earlier on in its ruling on the preliminary objection, in line with a settled principle of law enunciated by the Supreme Court that once there is evidence of sponsorship of a candidate for an election by his party (as in this case), then it is not within the right of a third party to question the membership of that candidate.
See the cases of ISRAEL & ANOR. V. AMOSON 7 ORS. (2019) LPELR-48916 (C.A.),LADO V. C.P.C. (2012)18 NWLR (PT.1279) 689- where it was held “where a party forwards the name of a candidate it is sponsoring, there is a presumption that he is a member of that party and there is compliance with the provision of Section 66(1) of the 1999 Constitution.”
The Tribunal’s biggest and inexcusable error was when it failed, refused and neglected to consider and evaluate the evidence elicited under cross-examination of the Petitioner’s witnesses by the Respondents and which evidence clearly discredited the totality of the evidence of the 32 witnesses called by the Petitioner but went ahead to use the same in justifying it’s judgement when the evidence had no probative value and same should have been jettisoned by the Tribunal.
See: ONWUBUARIRI V. ONUOHA (2021) ALL FWLR 1517 at 1528
AKOMOLAFE V. GUARDIAN PRESS LTD. (2010) 3 NWLR (pt. 1181) 338 at 351
where it was held:
evidence elicited from a party or his witness goes to support the case of the party cross-examining, constitutes evidence in support of his defence.
If at the end of the day the party cross-examining decides not to call any witness, he can rely on the evidence elicited from cross-examination in establishing his case or defence.
This is exactly the principle that the team of lawyers for Abba Kabir Yusuf and the N.N.P.P. relied upon and decided to call only one witness whose testimony clearly and unambiguously discredited the testimony of the Petitioner’s witnesses.
The decision not to call any number of unnecessary witnesses was premised upon the fact that since the Petitioners have not led any cogent and reliable evidence to support their allegations, the Respondent can comfortably defend the Petition upon the failure of the Petitioner to establish his claim.
OKEREKE V. OMAHI & ORS (2016) 11 NWLR (pt. 1524) 438 AT 489B – Per KEKERE EKON, JSC who said, “it has been settled by a long list of authorities of this court that when a party seeks declaratory reliefs, the burden is on him to establish his claim.
He must succeed on the strength of his own case and not on the weakness of the defence (if any).
The Tribunal went on to erroneously hold that the Petitioner has proved its case without considering the evidence that was elicited by the Respondents during cross-examination which showed that the Petitioner did not prove its case when it called witnesses (who were not the officially recognised agents by I.N.E.C. and are merely imposters) in only 30 polling units after having listed 489 witnesses out of 11,222 polling units which were only across 16 out of 44 Local Government Areas thereby abandoning averments connected to 365 polling units.
The Tribunal erred in law when it held that the Petitioner had proved its claim of over-voting, violence and non-compliance with the electoral law by admission of I.N.E.C. in its pleadings and by virtue of Section 137 of the Electoral Act, 2022.
This is against the settled principle of law to the effect that in an election petition like this where the Petitioner is seeking for declaratory reliefs, such reliefs are not grantable merely upon the alleged admission of the adverse party but that the Petitioner must succeed on the strength of his own case and not on the weakness of the case of his adversary.
See: OKEREKE V. OMAHI & ORS (supra).
The Tribunal therefore clearly misunderstood, misquoted and misapplied the law when it held that the Petitioner need not call oral evidence if the originals or C.T.C.’s of election documents used in the conduct of the election manifestly discloses the infraction alleged.
The Tribunal wrongfully applied the dictum in the case of OYETOAL & ORS V. I.N.E.C. (2023) LPELR 60392 on the interpretation of the Electoral Act. 2022. Section 137 of the Electoral Act, 2022 did not shift the burden of proof of the allegation of non-compliance with the provisions of the Act.
By reason of the above, the Tribunal on its own, went into chambers and examined heaps and loads of documents tendered from the bar and which were not tested under the crucible of cross-examination by calling the makers to testify, and used these documents as the basis of its judgement, which is a clear case of denial of the right to fair hearing meted out on the Respondents as the documents were not demonstrated to prove the purported infractions which were not as manifest on the faces of the documents as claimed by the Tribunal.
It is settled in many decisions of the Supreme Court that documents must be tendered through their makers or if tendered from the bar, the maker or a witness with the knowledge of the documents must be called to give evidence on them.
Read Also:
A party who did not make a document is not competent to give any evidence on it.
IKPEAZU V. OTTI (2016) 8 NWLR (pt. 153) 38 at 93.
See also: NYESON V. PETERSIDE & ORS. (2016) 7 NWLR (pt. 1512) 452 at 522 where it was held that where the maker of a document is not called to testify, the document would not be accorded any probative value notwithstanding its standing as certified public document.
See also: ATIKU ABUBAKAR & ANOR V. I.N.E.C. & ORS. LER/2019/CA/PEPC/002/2019.
The Tribunal also committed another grievous error when it wrongly and solely relied on Exhibits tendered from the Bar as proof of allegation of non-compliance with the provisions of the Electoral Act, 2022 after it painstakingly combed through the exhibits page by page and concluded that because the Exhibits are certified true copies of I.N.E.C. forms, they are proof of allegations of violence, destruction and vandalization of election materials, over voting, cancelation of results for the areas affected, alleged vandalization of ballot boxes, malfunctioning of BVAS machines or non-use thereof and other copious reports.
The settled principle of law is still that the Tribunal must make its finding on facts pleaded and credible oral evidence in support of the facts pleaded.
That in cases where the Petitioner simply tendered documents from the bar (dumping), the Petitioner is expected to specifically relate documents, by calling the maker as a witness through whom he must show and link the documents to the allegation before the Tribunal.
The Tribunal however wrongfully analysed, scrutinized and relied on these documents that were simply dumped on it by the Petitioner without leading any witness that will link the same to the specific allegation in the Petition which action robbed the documents of any probative value and therefore discredited from being evidence to be relied upon by the Tribunal.
The Tribunal in a very grave, unmerited and serious error which occasioned a serios miscarriage of justice accepted and went on to rely on the report of a so called expert, who did not meet the basic text of an expert and which report he admitted was based on documents submitted to him by the Petitioner, which engaged him for a fee while the documents are copies of I.N.E.C. documents in respect of which he is not qualified to testify since he is not an I.N.E.C. official.
The said report which was not statistically, scientifically and mathematically correct contained obvious and simple mathematical mistakes which he could not explain or reconcile during cross-examination.
By his own admission the said figure of 165,616 so called invalid votes which were wrongfully deducted from the 2nd Respondent’s valid votes was shown to be 167,194 and yet the Tribunal went on to use those figures.
a) This most blatant error, committed by the Tribunal in going on a fishing expedition during which it allegedly discovered that these ballot papers certified by I.N.E.C., used during the election in some affected Local Government Areas and which were marked as Exhibit P5, P6-P16c, P18-P34a were either not signed, not named, dated not stamped or a combination of all of the above, which documents, also tendered from the bar, were never put forward to the Tribunal through their makers and put to the scrutiny of the Respondents by way of cross-examination were the same documents that the Tribunal claimed to have critically analysed, physically examined, behind the Respondent’s back and which was the basis upon which the Tribunal, contrary to the basic right to fair hearing and all known rules of natural justice, nullified Abba Kabir Yusuf’s votes totaling 165,616 out of his total score of 1,019,602 votes which made him the winner of the election with the highest number of votes cast during the election, without stating how exactly it arrived at the said figure.
The conduct of the Tribunal herein is a clear breach of the principle of fair hearing.
“Documentary evidence relied upon by a party must be specifically linked to the aspect of the case to which it relates.
A party cannot dump a bundle of documentary evidence on a Court or Tribunal and expect the court to conduct independent inquiry to provide the link in the recess of its chambers.”
See: UGWA V. ELECHI (supra), INIAMA V. AKPABIO (2008) 17NWLR (pt. 1116) 225 at 299D, A.N.P.P. V. I.N.E.C. (2010) 13 WLR (pt. 1212) 549.
Furthermore, the Tribunal also erred in law when it relied on Sections 71 and 63 of the Electoral Act, 2022 to nullify the ballot papers by which a total number of 165,616 lawful votes of Abba Kabir Yusuf were wrongfully deducted thereby reducing his total lawful votes of 1,019,603 down to 853,987 and wrongfully declaring Nasiru Yusuf Gawuna as the winner of the election.
There is nowhere, in the Electoral Act, 2022 I.N.E.C. Rules and Regulations for the Conduct of Elections, it is stated that ballot papers are required to carry date, stamp, signature and counter-signature.
The Tribunal apparently misread, misinterpreted and misunderstood Section 71 of the Electoral Act, 2022 which talks about the result form which is completed at the ward level, local government, state and national levels to be stamped, signed and counter-signed by relevant officers and poling agents at those levels.
The Tribunal made one of its biggest errors in the judgement when it stated that, “it is determined that the Petitioner NASIRU YUSUF GAWUNA” having scored a majority of lawful votes and having met the constitutional requirement, is hereby declared the winner of the election and returned elected as the Governor of Kano State” just as it had referred to him as the Petitioner in many instances in it’s judgement and which pronouncements are manifestly wrong, most perverse and is a gross miscarriage of justice as he is not the Petitioner herein.
The said NASIRU YUSUF GAWUNA is not a party to the petition and did not take part in it as either Petitioner or Respondent.
The Respondent led evidence by tendering Exhibit 3R2, which was a copy of the Vanguard Newspaper that reported that Gawuna conceded defeat at the polls and went on to congratulate the winner Abba Kabir Yusuf publicly and which was also widely reported by the electronic media and this evidence was not controverted and that he did not at any stage contest the election of Abba Yusuf Kabir as the Governor of Kano State.
The judgement of the Tribunal in its entirety is a nullity and same is vitiated by malice, bias and prejudice against the Respondents.
The closing statement of the Tribunal which was amplified by Hon. Justice Anya (member 2) in his concurring judgement and read out by the Presiding Judge against the 2nd and 3rd Respondents who were described in the most derogatory terms and utmost condemnation, sadly against the background of the isolated unguarded utterances of just two members of the 3rd Respondent allegedly carried out on social media.
The Tribunal ascribed the said utterances to the entire membership of the “Kwankwasiya Movement” which is simply the ideological arm of the members of the 3rd Respondent.
That not only were the members of the 3rd Respondent referred to in derogatory terms by the Tribunal, they were alleged to have chased the members of the Tribunal out of Kano with threats on their lives after they were harassed, intimidated and made to run under cover.
The long tirade of these allegations were baseless, have no merit and were unjustified and unsubstantiated.
That they were made in the course of the delivery of a judgement that was against the parties, in respect of whom such weighty allegations were being made, which allegations they were never confronted with and/or given the opportunity to defend themselves clearly spells out a clear case of malice, bias and prejudice which in turn is a complete negation of the principles of natural justice, negation of the parties right to fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.
The said malice, bias and prejudice against the 2nd and 3rd Respondents have beclouded the Tribunal’s sense of justice so much so that it failed to appreciate the fact that immediately the 2nd Respondent, Abba Kabir Yusuf became seised of the facts of these isolated cases of the unguarded utterances by his political appointees, he called a press conference and clearly and in no uncertain terms disassociated himself, the Government of Kano State and the 3rd Respondent (the N.N.P.P.) from these remarks adding that the two individuals spoke in their personal capacities and that they were not authorised to speak on behalf of himself, the party and their political associates.
The 2nd Respondent went even a step further and relieved the two individuals of their membership of his cabinet as Commissioner and Special Adviser respectively.
These steps under any normal circumstances would have vindicated the 2nd and 3rd Respondents from the apportionment of any blame, not that there is room for any in the circumstances.
The rest as they say is now history, as it is crystal clear that the Tribunal had already made up its mind to rob Abba Kabir Yusuf of yet another mandate from the teeming populace of Kano voters who overwhelmingly indicated their choice of who they want to govern them for the second term running, in the next four years.
As for the Tribunal it was an opportunity it has been waiting for, using same to condemn, castigate and give the 2nd and 3rd Respondents a bad name in order to hang them, which it did.
Tijjani Yahaya Esq.
