The Supreme Court , on Thursday, reserved its judgment in the appeal by the Kano State Governor Kabir Yusuf of the New Nigeria Peoples Party (NNPP), challenging his removal by the Court of Appeal which pronounced Dr Nasiru Gawuna of the All Progressives Congress (APC) as the winner of the governorship election in the state.
But the apex court reserved its verdict after six hours of fierce legal arguments between the lead lawyer to Governor Yusuf, Chief Wole Olanipekun (SAN) and the lead lawyer to Gawuna and the APC, Chief Akin Olujinmi (SAN).
Nine appeals and counter-appeals were filed in the matter, but on Thursday, the five-member panel elected to hear the main one filed by Governor Yusuf marked: SC/CV/1179/2023, saying that its decision in the appeal heard is to be applied to others on the grounds that the issues being canvassed are similar.
After lawyers in the case adopted their written briefs and made final submissions, Justice Okoro said the judgment is reserved till a date to be communicated to the parties.
In his appeal, Governor Yusuf is seeking to upturn the November 17 judgment of the Court of Appeal, which affirmed the September 20 decision of the Election Petitions Tribunal voiding his victory in the March 18 election.
When the matter came up on Thursday , Olanipekun asked the Supreme Court to set aside the decision of both the Court of Appeal and the Election Petitions Tribunal
The Senior Advocate specifically pleaded with the five-man panel of the apex court headed by Justice John Inyang Okoro to determine whether or not, the guidelines of INEC will be a basis for nullifying the election victory of a candidate who won the election by a margin of over 100,000 votes.
Olanipekun also argued that this is the first time in the annals of electoral jurisprudence where an election would be nullified on the grounds that ballot papers were not signed or stamped at the back.
According to the legal luminary, INEC guidelines does not envisage or contemplate that the courts will nullify an election on the basis of INEC purported failure to stamp ballot papers at the back.
He further argued that its client’s membership of the NNPP is a pre-election matter, insisting that the Court of Appeal lacked jurisdiction to entertain the matter.
Olanipekun said, ”The judgment of the lower courts is very unfair to the appellant and we urge your lordships to upturn it. Nobody raised the legality or illegality of the ballots. They tendered the ballot from the Bar. Nobody spoke about it. The ballot papers were legal because they were issued by INEC officials.
The Senior Advocate further recalled that an expert witness, who testified at the tribunal, said only a fraction of votes (1,886 ballots papers) were not signed, but the tribunal chose to cancel 165,616 votes.
When asked by Justice Okoro whether the issue bordering on the source of the disputed ballots was raised at the tribunal, Olanipekun said nobody raised the legality of the ballots.
He said, “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.
“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.”
Olanipekun therefore urged the apex court to allow the appeal, set aside the concurrent findings of the tribunal and the Court of Appeal and grant all the reliefs sought by his client.
But Olujinmi canvassed opposing argument, saying that the Electoral Act mandates INEC presiding officers to sign the back of ballot papers after the conclusion of the election to make them legal and lawful.
The Senior Advocate further urged the apex court to dismiss the appeal and affirm the concurrent findings of the two courts below.
He also cited Section 42 of Electoral Act and Regulation 19 of INEC Electoral Guidelines and argued that INEC ought to have stamped, dated and signed the ballots that are being disputed.
He said the Returning Officers deployed for the Kano governorship election should have stamped, dated and signed the 165,616 ballot papers.
Olujinmi faulted Olanipekun’s claim that only 1,886 votes were not signed and stamped by INEC.
He said: “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.
“These were irregularities that were manifest in the conduct of the election. This amounts to non-compliance with the Electoral Act.”
He further cited Section 177 (c) of the Constitution and argued that the Court of Appeal has the jurisdiction to hear and determine the issue of Yusuf’s membership of the NNPP.
He recalled that the NNPP produced its membership register but Yusuf’s name was conspicuously absent, adding that Yusuf did not address the court on that issue.
Olujinmi said, “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.”
But the lead lawyer tp INEC, Abubakar Balarabe Mahmoud (SAN), aligned himself with the argument of Olanipekun, saying that the decisions of the lower courts were flawed.
Mahmoud said the testimony of a subpoenaed witness (PW32) which the tribunal relied on to sack Abba Yusuf were not front loaded along with the petition at the tribunal, contrary to the Electoral Act.
The Senior Advocate also argued that the decision by the Appeal Court was at variance with the position of the Supreme Court in the cases of Peter Obi and Atiku Abubakar against INEC and President Bola Tinubu.
He further argued that it was not the duty of the electorate to check the source of the ballot papers at the elect before casting their votes.
Mahmoud said: “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.”
On Yusuf’s membership of the NNPP, Mahmoud noted it was clearly an internal affair of the party and did not amount to a constitutional breach.
He noted out that the APC did not challenge Yusuf’s membership of the NNPP when INEC published his name on its website before the March 18 election.
Mahmoud said: “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.”
Lawyer to the NNPP, Chief Adegboyega Awomolo (SAN) said ballot papers were actually cast at the polling units but the APC legal team did not specify the polling units affected at the Tribunal in line with rules of court.
Awomolo also said ballot papers not signed ought not to affect the validity of an election.
He said, “My submission is that election is the decision of the people. Tribunal was wrong to recount the ballots in its chambers.”
The Senior Advocate also argued that not a single witness told the Tribunal that ballot papers were not stamped and urged the apex court to restore the 165,165 cancelled votes of Abba Yusuf and affirm his election.
Having listened to the arguments of parties, Justice Okoro reserved judgment in Governor Yusuf’s appeal.
The tribunal had in September nullified Yusuf’s election, citing over 160,000 invalid votes due to missing signatures and stamps on the ballot papers.
The APC had challenged the election outcome at the Tribunal, alleging electoral malpractice.
Governor Yusuf, however, approached the Court of Appeal for redress, asking it to set aside the decision of the tribunal.
But the Court of Appeal in Abuja dismissed Governor Yusuf’s appeal against the judgment of the Tribunal which declared Gawuna as the winner of the state’s governorship poll held on March 18.
The tribunal had voided Yusuf’s victory after declaring 165,616 of his votes invalid, a decision a three-member panel of the Court of Appeal that sat in Abuja affirmed.
It is instructive to note that the appeal lapses on January 14, 2024. Therefore, the Supreme Court is expected to deliver judgement in the suit within the statutory 60 days it has to determine appeals on governorship election disputes.
