Osun State Tribunal Judgment: Can A Tribunal Cancel Votes Cast In An Election And Still Declare A Person Winner?

Can a Tribunal Cancel Some Votes Cast in an Election and Still Declare a Candidate Winner of the Election based on the Un-Cancelled Votes? A Brief Reflection on Section 140 & Related Sections of the Electoral Act, 2010, as Amended

I have seen and read the following statement on more than four different Social Media platforms within the last 24 hours:

“Meanwhile, section 140 (2) of the Electoral Act, 2010 (as amended) does not permit the Tribunal to deduct votes and declare a winner.”

With due respect, I am unable to agree with those who hold or disseminate such an opinion. I do not think that statement represents the true state of Nigeria’s electoral lawspertaining to powers of an Election Tribunal. Meanwhile, beyond reports in the newspapers, I have not read the detailed decision of the Osun State Governorship Election Tribunal, as delivered on 22 March, 2019. So, I would restrict myself to commenting on just the import of the provisions of section 140 (1), (2) and (3), as well as on some other relevant sections, ofthe Act on powers of an Election Tribunal to deduct/cancel votes cast in some areas/portion in an election and still declare a candidate winner of an election based on the un-cancelled votes/areas.

I first reproduce the entire section 140 (1), (2) and (3) of the Electoral Act, 2010, as amended:

“(1) Subject to subsection (2) of this section, if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.

(2) Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or that the election was marred by substantial irregularities or non-compliance with the provisions of this Act, the election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election.

(3) If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.”

Irespectfully submit that section 140 (2) of the Electoral Act, as amended is NO longer part of the Act, having been declared null and void in 2011 for its inconsistency with the Constitution of the Federal Republic of Nigeria, 1999, as amended. In the case of LABOUR PARTY V. INEC & ORS, the Federal High Court, sitting in Abuja had on Thursday, 21 July 2011, had declared that sections 140 (2) and 141 of the Electoral Act, 2010, as amended, were null and void for being inconsistent with sections 134 and 179 of the Constitution which imbues the judiciary/court with powers to declare the person with majority votes winner of an election process Constitution. The court had thenordered that the two sections of the Electoral Act should not be binding on any Election Tribunal. Delivering judgment on the matter, the presiding trial judge, Hon Justice Gabriel Kolawole, had held that the National Assembly of the Federal Republic of Nigeria was bereft of any legislative competence to dictate to the Court of law decision the Court should take over a suit filed before it. Describing sections 140(2) and 141 of the Electoral Act, 2010 as an affront on the concept of separation of powers, the judge stated thatthe two sections smacked of legislative tyranny, in the sense that they removed the constitutionally guaranteed powers of the court to declare any candidate winner of an election. Thejudge further stated that what the National Assembly had done in this instance was todeliberately interfere with judicial affairs. While noting further that the two sections were nothing but legislative judgment, the judge had concluded thus:

“Sections 140 (2) and 141 of the Electoral Act 2010 delimits power of the court to adjudicate dispute between parties in an Election Petition. It, therefore, derogates powers enshrined in Sections 4 [8] and 6 (1) of the 1999 Constitution.The decision a court can arrive at in any dispute is based on the peculiar factsand evidences presented before it, it is not what any parliament can technically determine. Once an Election Tribunal is seised with a matter in line with provisions of section 239 and 385 of the constitution, it can no longer reside with the legislature to curtail or abridge the powers of that court.I, therefore, find Sections 140 (2) and 141 needless and an unnecessary intrusion, it is my view that Election Tribunals can operate effectively without these two provisions.Consequently, it is hereby declared inconsistent with the provisions of the 1999 Constitution and, therefore, null and void. The various election tribunals shall not be bound by the provisions of Sections 140 (2) and 141, it is thus accordingly struck-down, same being unconstitutional.”

(See < http://www.vanguardngr.com/2011/07/court-rejects-sections-of-2010-electoral-act/ > accessed on 23 March 2019); (< https://allafrica.com/stories/201107260828.html > accessed on 23 March 2019)

There has not been any judgment on appeal in this case. It is doubtful it was ever appealed against. So, the 2011 judgment of the Federal High Court remains and represents the law on the subject till today; the decision a court can arrive at in any dispute is based on the peculiar facts and evidences presented before it, the court having, as the Federal High court said, the constitutionally guaranteed powers to declare any candidate winner of an election in line with sections 134 and 179 of the 1999 Constitution.It must however be noted that in the case of JEV v. IYORTYOM & 2 ORS (2014) 5-6 SC. PT III), the attention of the Supreme court was drawn to the 2011 judgment of Kolawole, J. in Labour Party v. INEC and this is what Fabiyi JSC had to say about the judgment:

“EXHIBIT 2, the judgment of the Federal High Court, delivered on the 21st July 2011 is a ‘joker’ relied upon by the applicant to initiate his application. I dare say that this court was unaware of same. I do not agree with senior counsel to the applicant that the court was ignorant of same. A Judge is not a robot. Once an exhibit is placed before him, he must read and carefully consider it. I took time to read Exhibit 2 very well. The learned trial Judge did not touch on the non-joinder of the National Assembly as well as the locus standi of Labour Party. Since the judgment is not on appeal before this court, I maintain a stoic stance and hereby keep my peace.”

I think the crucial part of this orbiter dictum by Fabiyi, JSC, in this case is that “since the judgment is not on appeal before this court, I maintain a stoic stance and hereby keep my peace.”I therefore submit that the Supreme court in the case of JEV v. IYORTYOM & 2 ORSdid not upturn the 2011 judgment of Kolawole, J. The judgment still subsists, even if one considers it bad law, until set aside or overruled. A slightly similar scenario had played out in MAYAKI & OTHERS v. REGISTRAR, YABA MAGISTRATE COURT, (1996) 2 NWLR (Pt 130) 43 where the Court on appeal had described the judgment of the trial Magistrates’ Court as a “judicial rascality,” but nevertheless refused to set the judgment aside.

On the other hand, I submit that section 140(2) of the Electoral Act, even if it is held to still be effective, is IRRELEVANT to the majority decision in Osun. This is because, in my humble opinion, section 140(2) can only be USED or be applied in these three instances:

1. Where an election tribunal or court nullifies the ENTIRE election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, or
2. Where an election tribunal or court nullifies the ENTIRE election on the ground that election was marred by substantial irregularities or
3. Where an election tribunal or court nullifies the ENTIRE election on the ground that there was SUBSTANTIAL non-compliance with the provisions of this Act.

Based, on that section, I think it is only where ANY ONE of the above three options applies that the election tribunal or court is mandated to not declare the person with the second highest votes as elected, but to order a fresh election. In my humble view, none of those three instances WAS PRESENT in the OSUN State scenario. Accordingly, section 140(2) does not apply. Reasons:

1. In Osun State, the Tribunal’s decision DID NOT nullify the ENTIRE election as invalid. Only the rerun election was canceled; so, section 140(2) is inapplicable;
2. In the Osun State case, the Tribunal’s decision did not declare that the person earlier declared winner (Oyetola) was not qualified to contest. So, Section 140(2) is irrelevant here;
3. The Tribunal’s decision in Osun did not declare that there was substantial non-compliance of the entire election, with the Electoral Act. The Tribunal’s decision was only that some part (namely THE RERUN ELECTION in 7 wards) did not comply with the Electoral Act. It was only the seven (7) wards adversely affected, and NOT THE ENTIRE GOVERNORSHIP ELECTION, that was canceled and deducted So, section 140(2) has no relevance here.

Second, it is respectfully submitted that section 140 (1) of the Act applies to only situations where the Tribunal determines that the entire election has to be voided/nullified on grounds that the candidate who was returned (by the electoral umpire) as elected was not validly elected on any ground. Such grounds that could give rise to a decision voiding/nullifying the entire results of an election include the following, as set out by section 138 (1)(a), (b),(d) & (e) of the Electoral Act:

1. that a person whose election is questioned was, at the time of the election, not qualified to contest the election;
2. that the election was invalid by reason of corrupt practices or noncompliance with the provisions of this Act; and
3. ….
4. that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
5. that the person whose election is questioned had submitted to the commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.

It must however be note that as provided by section 139 (1) of the Act, “an election shall not be liable to be nullified/invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.” A plain interpretation of the actual import of section 39 (1) of the Electoral Act (as amended) is, in my humble opinion, that an Election Tribunal clearly possesses the power to decide that:

1. Although the conduct of an election is not wholly/entirely in compliance with the Electoral Act, yet, the election is sufficiently valid to produce a winner on grounds that the conduct of the election has substantially complied with the Act. In other words, the Tribunal is entitled to decide that a portion of the election IS in compliance while the other portion IS NOT. Accordingly, where the Tribunal holds that the portion that is in compliance with the Electoral Act is substantial to produce a winner, the Tribunal can validly declare as winner, the personwith majority of the votes cast in the portion in which the Tribunal finds that the election was validly conducted. For this purpose, where the Tribunal in exercise of its powers under section 139(1) finds that a particular portion of the election or its conduct IS NOT in compliance with the Electoral Act, the Tribunal has the power to nullify the affected portion and thereafter determine whether the other portion, the SAVED, un-nullified portion, is sufficiently substantial to ground a declaration that a person has won the election. I think, respectfully, this is what the Osun State Governorship Election Tribunal did on 22 March 2019 when it foundin its wisdom (rightly or wrongly) that a certain portion of the conduct of the gubernatorial election in Osun State (specifically, the re-runportion of the election) had violated the law and as such was liable to be nullified with the consequence that all votes cast in the affected portion/areas be deducted from the total votes cast while the other portion (the areas not adversely affected) was now relied upon to determine the winner of the election. It is therefore clear, I submit, that an Election Tribunal possesses the power to cancel or deduct the votes cast in an election conducted in any area in violation of the Electoral Act. However, whether the Tribunal properly applied the powers to deduct votes in a cancelled area and whether the tribunal’s reasons for cancelling elections conducted in the area it cancelled is now a matter which depends of the facts of this case, and in respect of which the appellate Courts are in the best position resolve.
2. Even though the tribunal found that a portion of the areas/ conduct of the election did not comply with the provisions of the Electoral Act, and was therefore nullified, such nullified area and votes cast within the area which were deducted from the total votes cast as a result of such non-compliance “did not substantially affect the result of the election.” Accordingly, where the ‘illegal” votes cancelled/deducted as a result of partial non-compliance is not sufficient to “substantially adversely affect the result of the election, the tribunal is entitled to declare any person winner based on the un-affected, the un-cancelled, votes. Please, note that whenever the tribunal cancels and deducts the votes cast in elections conducted in a portion of the State in breach of the Act, the necessary implication is that the un-canceled portion would now be deemed to be the only valid votes for the purpose of application of section 140(3) of the Act.

Respectfully, therefore, I think section 139(1) impliedly gives the Tribunal powers to cancel part of an election (found to be against law) and to declare a person winner based on the un-canceled part of the Tribunal finds that the votes secured in the un-canceled part substantially complied with the Electoral Act!

Further, section 140 (3) of the Act empowers the Election Tribunal to declare as elected the candidate who scored the highest number of valid votes cast at the election conducted in the portion where no such cancellation as a result of illegality happened if it finds that the votes cast in the portion where conduct of electionsis held to have “satisfied the requirements of the Constitution and of this Act” were substantial enough to justify such a declaration.Besides, section 138(1) (c) provides as a ground for an election petition that the petitioner could be declared winner if the tribunal finds “that the respondent was not duly elected by majority of lawful votes cast at the election.” This is a clear indication that the Tribunal could declare some votes unlawful and invalid, and proceed to rely on the “lawful, valid votes” to determine the winner.”

One may hence reasonably conclude that by combined effects of section 138, 139 and 140 (1) and (3) of the electoral Act, as amended, an election Tribunal possesses powers to cancel or nullify a part of an election it find does not comply with the provisions of the Act, and, may indeed declare any person winner of an election based on the un-cancelled portion, if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the cancellation of votes in some part as a result of non-compliance did not substantially adversely affect the overall result of the election. Accordingly, the statement being circulated by my friends, to the effect that “section 140 (2) of the Electoral Act, 2010 (as amended) does not permit the Tribunal to deduct votes and still declare a winner” is obviously unfounded, baseless, and, as the Court had held in Labour Party v. INEC (supra), an Election Tribunal “shall not be bound by the provisions of Sections 140 (2).”

However, speaking specifically of the Osun State case, the Governorship Election Tribunal had on 22 March 2019 declared as winner, the candidate of the People’s Democratic Party (PDP), Senator AdemolaAdeleke, holding that the candidate of the All Progressives Congress (APC), Mr. GboyegaOyetola, was not validly returned. It would be recalled that in the first ballot in the Osun State Governorship Election, the PDP candidate had won majority valid votes(254,698) while Mr.Oyetola of the APC had come a close second (with 254,345 votes). However, the INEC RetuningOfficer had declared that Mr.Adeleke’s margin of lead (354 votes) was lower than the total number of cancelled votes (which were put at 3,498). This was what led to the Independent National Electoral Commission’s (INEC’s) decision to conduct a re-run election in the affected seven polling units. What the tribunal did in its majority judgment of 22 March 2019 was to declare that thererun election that was held on September 27, 2018 was illegal. The Tribunal consequently cancelled/deducted all the votes scored by both the APC candidate and the PDP Candidate at the areas affected by the rerun. With the cancellation of the rerun election by the tribunal, the initial ballot/result was recognized thus leading the Tribunal to declare Mr.Adelekeof PDP the winner of the election. (see https://www.premiumtimesng.com/news/headlines/321637-breaking-tribunal-declares-pdps-adeleke-winner-of-osun-governorship-election.html accessed on 23 March 2019).

Based on my explanation above and in view of the facts of the case and the ratio decidenci for the judgment as reported in the newspapers on 22 March 2019, I believe the main business before the appellate courts in this case, if the APC Candidate goes on appeal, as he is expected to, would be to determinewhether the majority decision of Tribunal was right in having decided that it hadfound sufficientevidence of non-compliance with the Electoral Act to justify the cancellation of the rerun elections and deduction of the votes scored therein. I leave that question for the appellate courts to decide.

Respectfully,
Sylvester Udemezue
(23/March/2019)
.