Lanre Adewole and Yejide Gbenga-Ogundare consider precedents that bear verisimilitude to the Adamawa electoral crisis.
As of today, only Adamawa State in North East Nigeria, doesn’t have a conclusive gubernatorial election, despite the conduct of a supplementary election, meant to conclude the process, for a lawful winner to emerge. Unlike the other 27 states where governorship elections also took place and winners, announced, by the Independent National Electoral Commission (INEC), the attempt to conclude the process in Adamawa, has become a subject of litigation, the first of its kind.
The ongoing case over Adamawa governorship election is novel. While the victories of those declared winners in other 27 states are being challenged by their opponents, with INEC just standing behind those it proclaimed as governors-elect,in Adamawa, the electoral body is the main subject of litigation initiated by the governorship candidate of the All Progressives Congress (APC), Aisha Binani, who was said to have been illegally declared the winner of the election while the collation of the supplementary election result, at the weekend, was still ongoing.
Binani was declared the governor-elect by now-suspended Resident Electoral Commissioner of the state, Hudu Yunusa-Ari, in violation of the election regulation that places the responsibility on the Returning Officer in charge of the state. The Sunday declaration has led to a chain of reactions, with INEC suspending Hudu from office and halting the collation process as well as the announcement of the final result. Unconfirmed reports hinted the final result will likely be delivered tomorrow, and expected to favour the incumbent governor, Ahamdu Fintiri.
Regardless of the expected pronouncement, it is now certain that the judiciary is going to determine the lawful governor of the state, in another unprecedented case, but appearing as a repeat of the 1999 governorship in the state, when in another novel case, it took judicial pronouncements for a lawful governor to be seated in the state.
Binani, following the alleged illegal declaration, her acceptance of the “mandate” to serve and the invalidation of her “victory” by the national leadership of the Independent National Electoral Commission (INEC), had gone to court, to stop the electoral commission, from “tampering” with her “mandate”.
Binani’s case
Senator Binani, who is the candidate of the All Progressive Congress in the March 18 gubernatorial and April 15 supplementary elections, tabled an exparte application before a Federal High Court sitting in Abuja, praying the court for a judicial review of her declaration as the winner of the state governorship election.
Yesterday, the case, suffered a temporary setback, but still ongoing.
In the motion, she is also asking the court for a judicial review of the administrative decision of INEC on April 16, as it concerns her declaration as winner of the Adamawa state governorship election which was nullified by INEC.
Through her lawyer Hussaini Zakariyau, SAN, she is also praying for an order of court prohibiting INEC and its agents from taking any steps toward the declaration of the winner of the election pending the determination of her application for judicial review on the ground that a judicial review exists to enable the superior court, checkmate the actions and decisions of legislative and administrative arm of government.
The application was brought pursuant to Order 34 Rules 1a, Order 3(1) & 3(2) a, b, c, Order 6 of the Federal High Court (Civil Procedure Rules), 2019 and Section 251 (1)q & r of the 1999 Constitution, as well as Section 149 & 152 of the Electoral Act, 2022.
Giving grounds why the motion should be granted, Binani stated that after the collation of results, INEC declared her as the winner of the elections but the PDP and its candidate, Governor Fintiri, resorted to fighting and causing a public disturbance which led to the beating and manhandling of an INEC staff.
This crisis, she said, led INEC to cancel the initial declaration which it had no power to do as only the election petition tribunal was vested with such powers.
By cancelling her declaration, Binani contended that INEC usurped the powers of the election petition tribunal which was the only court vested with powers on a declaration from the conduct of an election.
Against arguments that in the face of the law, Senator Aisha Binani is the Governor-elect of Adamawa, until set aside by a court or tribunal of competent jurisdiction, lawyers have argued that this is an aberration.
Law, an ass?
Binani’s backers, especially Senator Elisha Abbo, have continued to trumpet Section 149 of the Electoral Act, 2022 (as amended) as the greatest weapon in their arsenal, in the judicial pursuit of her “mandate”.
The Section prescribes that “Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission (INEC) in relation to any notice, form or document, made or given, or other things done, by the official in pursuance of the provisions of the Constitution of this Act, or any rules made there under remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal”.
Those opposing the claim, are pointing to INEC’s power, to review declared results within seven days, as enshrined in Sections 64(6),(7)&(8), 66 and 65(1)(c) of the Electoral Act. The combined effect expressly authorizes INEC to review any result declared against law, which is widely believed to be the case in the knotty governorship election.
In the back and forth on the matter, certain facts have remained unchanged. One, the rerun result collation process was ongoing when a winner was announced by the Resident Electoral Commissioner. Two, election observers who monitored the exercise expressed the views that the process was truncated. Three, collation process suspended, not concluded. Four, The REC, Hudu Yunusa-Ari had no legal backing, to announce the winner of the election even if concluded. Five, that responsibility, belongs to the Returning Officer for the state, Mr Mele Lamido. Six, INEC agreed that the action of Yunusa-Ari is a usurpation of Lamido’s powers and Lamido was absent when the REC announced the APC candidate as winner of the election. Seven, INEC invalidated the announcement of Binani as null and void, and of no effect. Eight, before collation was suspended on Saturday night, results from 10 LGAs had been announced — and Binani was trailing Ahmadu Fintiri, the incumbent governor and PDP candidate with 10 more LGAs outstanding. Finally, Binani gave a hurried acceptance speech as the governor-elect of the state.
Lawyers’ take
Professor Mike Ozekhome, SAN
INEC REC is not constitutionally or statutorily empowered to announce or declare results. It is only the National Returning Officer appointed by INEC that can return a Governor. So, the so-called declaration made by the INEC REC in Adamawa last Saturday is null, void and of no effect whatsoever.”
Chief Bolaji Ayorinde (SAN)
INEC has disowned the declaration therefore there was no declaration in law.
Dave Ajetomobi, former chairman, NBA, Ikeja branch
The state of the law in 2004 has radically been altered as at today, so the position in Obi v. Abana can no longer be the law. The lex lata is that election results SHALL be declared by the returning officer appointed by the INEC chairman and not the REC. Once this is not followed strictly, it is deemed in law that no result has been announced, because it was not declared by the legally-recognized authority. Even if the RO refused to do so, it’s the prerogative of the INEC chairman to replace him with another person who will do the needful, it doesn’t lie in the mouth of the REC to take over the announcement and declaration of results. Hence it is said that: “ Bi oke ibadan ba fe gba malu, ki se enu igbira ni o ma ti jade”. Binani can only approach the appropriate tribunal not the regular court for post-election issues. Her lawyers should know better. She has just embarked on a journey to nowhere because the law is very clear on the issue. I am not aware that such situation has arisen before. I believe that judiciary can not be used in the case because the law is clear, it will not allow itself to be dragged through the mud by desperate politicians.
Foluso Olapo
In administrative law, there is what we call delegated powers wherein a principal delegates some of its powers to some other persons who are to perform such powers on the principal’s behalf.
In this instance, INEC is the principal who delegated some specific responsibilities to its officers.
The power of an INEC REC does not include declaration of election results, only an INEC Returning Officer is given that responsibility.
Since a principal will not be bound by the action of an agent which does not flow from the principal, then INEC cannot be bound by the REC action and thus, the case of ABANA v. OBI does not apply.”
Chief Yomi Alliyu (SAN)
This is subjudice! Let’s leave it to court to decide.
The 1999 challenge.
As observed by Ajetomobi, the Bunani challenge is unprecedented and it now rests squarely on the shoulders of the judiciary to set a precedent, just like it did in 1999 when the same Adamawa State, presented it with a novel challenge. The Nigerian judiciary had to wade in, to set the precedent that a deputy governor-elect can automatically become governor-elect, without having to stand for another election, if the governor-elect steps away.
Atiku Abubakar of the Peoples Democratic Party became the governor-elect, having been declared the winner of the January 9, 1999 election in the state, alongside his running-mate and eventual governor, Boni Haruna, defeating Bala Takaya of the All Peoples Party (APP). Before the victorious team could be sworn-in, Abubakar was selected as the running-mate to PDP’s presidential candidate, Olusegun Obasanjo and the ticket went ahead to win the presidential election, with Abubakar, becoming the vice-president-elect.
The question then arose if Haruna could automatically go to the top of the ticket, considering that the tag team had not been sworn-in, for him to become a legitimate beneficiary of the “promotion” of his boss.
The scenario was new to the Nigerian legal system, but it was eventually resolved in favour of Haruna, with the logic that since it was a joint ticket, it would be taken that all the votes recorded for PDP in the election, belonged to the duo.
Haruna eventually became governor and chose Bello Tukur as his deputy.
The 1999 precedent however didn’t come into play for James Faleke, running mate to now-late Abubakar Audu of the All Progressives Congress, in the November 22, 2016 governorship election.
The ticket was coasting to victory when Audu suddenly died, leaving the stakeholders with a head-scratching moment of deciding whether Faleke should inherit the ticket’s winning votes, heading into the supplementary election or the runner-up in the party primary that produced Audu; Yahaya Bello, should be promoted to the top of the ticket.
The latter was favoured and despite Faleke rejecting to be his running mate, heading into the supplementary election, which APC eventually won, a scenario that left Bello without a running mate, he was still declared the winner of the poll.
In another novel precedent, reminiscent of the Rivers’ case when Rotimi Amaechi was pronounced governor without being on the ballot at all, the Supreme Court, went ahead to seal Bello’s win, with judicial stamp, despite not having a running-mate as stipulated by the provisions of the Constitution specifying qualification criteria to run for governor.
Again, Adamawa is inviting the judiciary to set another precedent.
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