The Court of Appeal, in a judgment delivered by Justice Obande Festus Ogbuinya, in Agbaje vs Ambode (APC), declared categorically that the Card Reader has no Life of its own, and as a result, cannot be used to determine the result of an election, since it is not contained in the Electoral Act, 2010, as Amended.
The other justices on the Court of Appeal panel were A. J. Abdulkadir, Mohammed Danjuma, Emmenuel Agim and Saidu Hussaini.
Agbaje, the PDP, the Independent National Electoral Commission (INEC), Ambode and the Resident Electoral Commissioner (REC) were the cross-respondents.
A copy of the Appeal Court judgment, delivered on August 26, 2015, and obtained by FLASHPOINT NEWS ONLINE, noted that both the High Courts and the tribunal have concurrent jurisdiction over the issue of a candidate’s qualification/disqualification.
On the Card Reader issue specifically, the appellate court’s judgment, delivered by Justice Ogbuinya held that: “The paragraph (13b) displays a vitriolic attack on the irregularities germinating from the improper or non-use of the smart card readers in the polling units.
“As it is, it has no life of its own as a ground. It endeavours to introduce the defects in the use of smart card readers. The evolution of the concept of smart card reader is a familiar one. It came to being during the last general election. On this score, it is a nascent procedure injected into our infant and fledgling electoral system to ensure credible and transparent election.
“The extant Electoral Act (2010) which predates the concept (of card reader) is not its parent or progenitor. Since it is not the progeny of the Electoral Act, fronting it as a ground to challenge any election does not have its (the Electoral Act’s) blessing, nay Section 138 (1) of it.
“Put simply, a petitioner cannot project the non-presence or improper use of smart card reader as a ground for questioning an election. It does not qualify as one.
The Court of Appeal then upheld the Governorship Election Tribunal’s decision which struck out Agbaje’s petition and upheld Ambode’s victory, in the April 11, 2015 Lagos State Governorship election.
Informed legal experts and analysts have interpreted this Court of Appeal judgment to mean that any Petition or matter brought before an elections petition Tribunal or the Court of Appeal, based on the use of the Card Reader as the fundamental basis of its argument, is already doomed to fail, according to the Court of Appeal judgment in Agbaje vs Ambode (APC).
They also opine that, the Court of Appeal judgment in Agbaje vs Ambode (APC), will be the subsisting judgment on the card reader issue, and is superior to any Tribunal judgment on the matter, since it is a higher court of competent jurisdiction, until the Supreme Court as the most superior court in the land, decides finally on it.
A top legal expert and strong member of the Nigerian Bar Association in Asaba had this to say: “Without prejudice to any existing processes or matters presently before the tribunals of even the Court of Appeal, it is the groundnorm in our legal profession that the Court of Appeal is a superior and higher Court to the Tribunal and therefore, the judgment by Justice Oguinya in Agbaje vs Ambode, has laid to rest the issue of the card reader in the April 11, 2015 governorship election across the country and will now be the subsisting judgment on the matter for now.
“The Card reader was a good argument before the Court of Appeal judgement in Agbaje vs Ambode (APC) in the Lagos state governorship election was delivered, but many election petition counsels and lawyers did not or were not expecting that Lagos Governorship judgment before hinging their cases on the card reader. What has simply happened is that the learned Appellate court Judges have interpreted the law accordingly. The card reader is not recognized in the electoral Act, therefore any matter on which it serves as the fundamental basis of its case is doomed to fail.
“There is a truism in law that you either swim or sink with your arguments and pleadings. The lawyers who based their cases on the card reader took a calculated risk by attempting to give the Card reader the legal authority it did not have. INEC is a non-legislative body so it cannot even make a law, let alone one that supercedes or overrides the electoral act. It can only give directives and the Agbaje vs Ambode judgment has placed such directives in its proper context in relation to the law. The card reader is not known in the electoral act and that settles the matter for now until a superior court rules otherwise, which may not even happen until next year, when most of these 2015 election matters get to the Supreme Court,” the Delta NBA top man concluded.
The Delta State governorship elections petitions tribunal sitting in Asaba and headed by Justice Nasiru Gunmi, has set Monday, October 26, 2015, as judgment day in the petition brought before the tribunal by the All Progressives Congress, APC, and its governorship candidate Olorogun O’tega Emerhor, on one hand and the Labour Party, LP and its governorship candidate, Chief Great Ovedje Ogboru on the other hand, challenging the declaration of Senator Ifeanyi Okowa of the Peoples Democratic Party, PDP, by the Independent National Electoral Commission, INEC, as the winner of the April 11, 2015 governorship election in Delta State.
The facts have been presented, the arguments marshaled, the final addresses adopted and the propaganda levels and permutations raised to electrifying levels. It is now left to see whether the Justice Nasiru Gunmi led three-man Delta State election petition tribunal, will toe the line of the Justice Suleiman led Rivers State elections tribunal, which is a lower court of jurisdiction, or align with the higher court judgment of Justice Festus Ogbuinya in the Court of Appeal judgment on the Lagos state Governorship elections petition.
Justice is on trial and Deltans, Nigerians and indeed the whole world is watching keenly.
SUMMARY OF JUDGMENT
ALL PROGRESSIVES CONGRESS v. MR JOSEPH OLUJIMI KOLAWOLE AGBAJE & ORS
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of August, 2015
Before Their Lordships
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
ALL PROGRESSIVES CONGRESS
(CROSS-APPELLANT) – Appellant(s)
MR. JOSEPH OLUJIMI KOLAWOLE AGBAJE
PEOPLES DEMOCRATIC PARTY
INDEPENDENT NATIONAL ELECTORAL COMMISSION
MR. DAPO AKINWUMI AMBODE
THE RESIDENT ELECTORAL COMMISSIONER FOR LAGOS STATE, INEC
(CROSS-RESPONDENTS) – Respondent(s)
This case borders on Election Petition.
FACTS This cross appeal is against the decision of the Governorship Election Tribunal of Lagos State. The third cross-respondent, the Independent National Electoral Commission (INEC, for short), a body constitutionally assigned with the onerous task of conducting election in Nigeria, conducted election into the office of the Governor of Lagos State on 11th April, 2015.
In the said election, the fourth cross-respondent was the flag bearer of the cross-appellant, All Progressives Congress, (APC): a registered political party in Nigeria.
The second cross-respondent, Peoples Democratic Party, (PDP), another registered political party in Nigeria, had the first cross-respondent as its standard bearer during the election.
At the end of the election exercise, the third cross-respondent, INEC, via the fifth cross-respondent, declared and returned the fourth cross-respondent as the winner of the election. The first and second cross-respondents were displeased with the result of the election.
Hence, on 30th April, 2015, they beseeched the trial tribunal, by dint of a petition, located at the threshold of volume 1 of the record, at pages I-II of it, and solicited for the following reliefs.
1) That it may be determined and doth declared that the 3rd respondent cannot validly present a candidate for the election into the office of the Governor in the gubernatorial election of Saturday, 11th April, 2015, having failed to comply with the mandatory provisions of Sec. 85 of the Electoral Act, 2011 (as amended). 2) That it may be determined and doth declared that the 2nd respondent, Mr. Dapo Akinwumi Ambode being the candidate presented by the 3rd respondent was not qualified to have contested the Lagos State gubernatorial elections conducted on Saturday, 11th April, 2015, as the process of his nomination was not in compliance with the mandatory provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria 1999 as amended. 3) That the 2nd respondent be disqualified as a candidate for the gubernatorial election held in Lagos State on the Saturday, 11th April, 2015 as the process of his nomination was not in compliance with the mandatory provisions of the Electoral Act and the Constitution of the Federal Republic of Nigeria as amended. 4) That it may be determined and doth declared that the 1st Petitioner, Mr. Joseph Olumimi Kolawole Agbaje being the candidate with the highest number of votes cast amongst the lawful and the valid candidates for the gubernatorial election held in Lagos on Saturday, 11th April, 2015, be declared as the winner of the said election. 5) AN ORDER nullifying the act of the 4th respondent in declaring the 2nd respondent, Mr. Dapo Akinwumi Ambode as the Governor-Elect in the gubernatorial election held in Lagos State on Saturday, 11th April, 2015. 6) That it may be determined and doth declared the 1st petitioner is winner of the gubernatorial elections held in Lagos on Saturday, 11th April, 2015, being the candidate with majority votes cast amongst the lawful and valid votes cast at the said elections. 7) AN ORDER mandating the 1st respondent, through the 4th respondent, to declare and return the 1st petitioner; Mr. Joseph Olumimi Kolawole Agbaje being the candidate of the 2nd petitioner as the governor-elect of Lagos State. 8) AN ORDER nullifying the Lagos State gubernatorial election conducted by the 1st respondent in Lagos State on Saturday, 11th April, 2015 in the following areas: 1. Epe, 2. Badagry, 3. Mushin, 4. Ikorodu, 5. Eti Osa, 6. Alimosho, 7. Ikeja, 8. Ibeju Lekki, 9. Lagos Island, 10. Apapa, 11. Ifako Ijaiye, 12. Kosofe, 13. Mainland, 14. Agege 15. Somolu as same is invalid for non-compliance with the provisions of the Election Act. In expected reactions, the cross-appellant and the fourth cross-respondent and the third and fifth cross-respondents filed their respective replies which joined issues with the petition. At the closure of pleadings, the petition and replies, the cross-appellant brought an application, filed on 20th May, 2015, found at pages 293-312, volume 1, of the record wherein it entreated the trial tribunal to strike out or dismiss the petition for lack of jurisdiction.
On 26th June, 2015, the trial tribunal ruled that all the notices of preliminary objections and motions “shall be heard and determined in the pre-hearing session”. Sequel to that, the trial tribunal consolidated the cross-appellant’s application with other preliminary objections and fused their hearing.
In a considered ruling, delivered on 1st July, 2015, the trial tribunal struck out the petition. Dissatisfied, the cross-appellant’s appealed against part of the judgment.
ISSUES FOR DETERMINATION: The cross-appellant formulated two issues for determination to wit: 1. Whether the Tribunal was right in its decision when, having held that paragraph 14 of the petition is a challenge against the nomination of the 4th cross-respondent, still went ahead to hold that the said paragraph 14 of the petition is valid ground for presenting a petition. 2. Whether the Tribunal did not err in law when it held that paragraph 13(b) of the petition, which complained of “Irregularities in respect of the use of the card reader during the election”, is a ground recognized under Section 138(1)(b) of the Electoral Act, 2010 (as amended). All the cross-respondents, who filed briefs of arguments, adopted the two issues formulated by the cross-appellant.
HELD In the final analysis, the cross-appeal was allowed in part. Accordingly, the portion of the trial tribunal’s decision declaring paragraph 14 of the petition as competent and triable by it was affirmed. Its part of the decision which approved paragraph 13(b) as a competent ground for presenting the petition was set aside. In lieu of it, the paragraph 13(b) of the petition on account of incompetence was struck out. The Court of Appeal further held that parties shall bear the respective costs they incurred in the prosecution and defence of the partially-successful cross-appeal.
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