Kwara South: Ajadi Battles to Retain Seat
One year after the last general election, petitions are yet to be disposed of. In Kwara State for instance, the incumbent Senator representing Kwara South, Sulaiman Makanjuola Ajadi, whose election was upturned by the election tribunal in favour of Chief Simeon Ajibola has headed for the Court of Appeal to retain his seat in the Senate, reports Tunde Sanni
Mixed reactions in Ilorin, the Kwara State capital and in some strategic areas in Kwara South Senatorial District trailed the judgement of the Ekiti and Kwara states Elections Petition Tribunal which on Thursday, March 18, invalidated the mandate of senator Sulaiman Makanjuola Ajadi of the All Nigeria Peoples Party (ANPP) and in his stead declared his main challenger and petitioner, Chief Simeon Jibola as the elected candidate.
Reading the judgement, Justice Abdulah Yusuf, the chairman of the five-man tribunal, after a review of the pleadings, testimonies and submissions had cancelled elections in four of the five polling stations after some deductions and additions concluding that Ajibola, the Peoples' Democratic Party (PDP) candidate in the election ought to and should be declared winner in the said election.
The tribunal had cancelled elections in Ilupeju, Adio, Koko and Oko-Ode polling stations, saying "we hereby resolve issue number one in favour of the petitioner and declare that the votes in the four polling stations of Ilupeju, Adio, Koko and Oko-Ode are unlawful and nullified". The trial tribunal however held that there was no over voting in the contentious fifth polling station in Sekun.
In conclusion, the lower tribunal said, "the total number declared by INEC is 66,978 for the ANPP and 66,318 for PDP, deducting the invalid votes 2,216 from the four polling units for the ANPP and the 229 added from exhibit NI, in the course of the judgement, the new total figure will be 64,623 for ANPP while (from) the total number declared for the PDP by INEC is 66,318 (and) deducting 156 invalid votes also nullified in the course of the judgement from the four polling units, the new total figure will be 66,612.
"In view of this new figure, the petitioner ought to be declared as the duly elected candidate in the Kwara South Senatorial Election held April 12, 2003 and is hereby declared as the duly elected candidate, having scored the majority of the lawful votes cast at the above said election".
The tribunal had hardly made the last pronouncement when the motley crowd of Ajibola's supporters gathered outside singing and jubilating and in a matter of minutes, loud shouts of joy and ovations resonated in near and far places where Ajibola and chieftains of his party hold sway.
But the ANPP camp was thrown into a mourning mood. Supporters of Ajadi who had thronged the tribunal expecting judicial victory left in desolation, sad over the fate of their senator.
Ajadi however vowed to fight on and promptly instructed his counsel to file an appeal against the tribunal judgement at the Court of Appeal, Ilorin Division.
At the initial hearing of the appeal petition, counsel to Ajadi, Yusuff Alli (SAN) had sought the reconstitution of the Appeal Tribunal as two of the appellate judges, Justices Walter Onnoghen and Jubril Mikhail had early in the year sat in judgement in the same petition on an appeal filed by Ajibola against the judgement of the initial election petition tribunal headed by Justice Mshelia who had upheld the election of Ajadi. The appeal court which consisted the two Judges had ordered a retrial of the petition de novo.
Alli (SAN) had argued that, "this appeal was heard fully on the facts that Onnoghen and Mikhail, JCA were on panel. I think this time around, a panel without the two Justices should hear it. Secondly, having regard to the first issue on our brief, I suggest a full court to be empanelled.
Citing Abiola V FRN reported in 1995 NWLR pt 405 @ pages 16 and 17, the legal luminary said, " I must say that I have every confidence in this panel, even in the Justices that sat on the earlier panel. However, the matter goes beyond my confidence, there are other considerations. I insist that the case was heard on merit on the first occasion".
In his submission, lead counsel to Ajibola, Chief Wole Olanipekun (SAN) argued that he was not bothered by any panel that hears the case, stating that it was needless reconstituting the panel.
"I do not mind any panel that hears the appeal. However, none of the justices on that panel heard the case on which judgement on merit was given. In the circumstances, I do not think the panel needs to be changed. With regards to the second prayer, I see nothing that the court, as constituted at the moment, can not take", he submitted.
On Abiola's case cited by his colleague-in-silk, Olani-pekun said the case was distinguishable, stressing, "in that case there was evidence that Abiola did not have confidence in the SC panel because of the case his company had with some members of the panel". Ruling on the oral objection of the appellate tribunal, lead judge, Justice Jonathan Ikoughen said the panel had no objection it only would enhance confidence in the judicial system, "the members of this panel concerned have no objection to be excused if this will enhance confidence in the system. In the circumstance, we think the appeal should be adjourned to another date to enable the president of the court reconstitute a panel that would meet the justice demand by all".
The panel was indeed reconstituted and on Tuesday June 22, legal fireworks formally commenced with Alli contending that the lower tribunal was not constituted in line with provisions of the 1999 constitution. Citing section 285(1) and (2) of the constitution, the appellate counsel argued that there are two types of election tribunal namely, National Assembly Tribunal and Governorship and Legislative Tribunal and posited that, "it is clear from the above provisions that a National Assembly Election Tribunal is different from a Governorship and Legislative Houses Election Tribunal. He also cited Ishola V Ajiboye reported in 1994 GNWLR pt 352 506 and Rabiu V the state reported in 1981 2 NCLR 293 and submitted that constitutional language is to be given a reasonableconstruction and ambigous consequences are to be avoided. He submitted on the totality of the citations that the lower trial tribunal was unknown to the constitution, and citing Uttah V Independence Brewery Ltd (now Golden Guinea) reported in 1974 ANLR vol 1 358, and argued that, "it is submitted that where a court is unknown to law or the constitution, then its decision will be a nullity. We therefore pray your Lordships to hold that the judgement delivered by the trial tribunal is a nullity".
Citing yet another authority in Onwuanumkpe V Onwuanumkpe reported in 1993 8 NWLR pt 310 186 @205-206, Alli prayed that, "it is our humble submission that this infraction is fundamental enough to lead to the nullification of the judgement. We therefore pray your Lordships to resolve this issue in favour of the appellant".
On the tribunal's cancellation of votes in four polling units due to violence, malpractices and electoral fraud, the counsel submitted that the tribunal failed to properly evaluate the pieces of evidence tendered- both oral and documentary, "this is a proper case for this court acting judiciously and judicially by virtue of Section 16 of the Court of Appeal Act to intervene".
Alli argued that before an election tribunal nullifies any election which is the gravest punishment that could be meted out to a winner in an election, there must be compelling and compellable pieces of evidence. "we therefore pray your Lordships to resolve this issue in favour of the appellant and against the first respondent."
Alli also disagreed with the election tribunal on the deduction of 229 votes from the total votes haul of the appellant based on arbitrary inflation of the appellant votes by INEC and urged the appellate court to disregard the testimony of PW 9 (the petitioner) which the trial tribunal relied upon to arrive at the conclusion, arguing that "it is settled that the only competent person that can give evidence of the inflation of electoral figures is the agent of the candidate who was present when the said act was being perpetrated" and prayed the court to order the restoration of the said 229 votes to the lawful votes of the appellant.
Concluding his submission, Alli said that the trial tribunal lacked the vires, the competence and jurisdiction to entertain and decide the petition while the trial tribunal was wrong in the way and manner it treated the case of the appellant.
"The declaration of the first respondent winner was a clear usurpation of the statutory powers of INEC and a substitution of the prerogative of the electorate by the discretion of the court".
Counsel to Ajibola who is the first respondent in the case, Chief Wole Olanipekun (SAN) disagreed on the jurisdiction of the trial tribunal and submitted that there is no factor which has robbed the lower tribunal of the jurisdiction to entertain the petition.
The legal luminary who is also the president of the Nigerian Bar Association (NBA) argued that the heading employed by the tribunal is merely a matter of form not an issue that can present a valid cause for nullification of the judgement. Citing section 23 of the Interpretation Act, he surmised that, "by virtue of that provision, the judgement can not be invalidated for the wrong heading employed in the judgement and that all authorities cited by the appellant counsel are inapposite." Olanipekun urged the appeal court to sustain the nullification of votes in the four polling units annulled by the lower tribunal as well as to uphold the deduction of 229 votes by the tribunal.
"On the basis of the foregoing, your Lordships are urged to dismiss this appeal in its entirety," he pleaded.
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