The Supreme Court on Thursday reserved judgment in the appeal by Governor Abba Kabir Yusuf of Kano State challenging the ruling of the Appeal Court that sacked him from office.
The Justice Inyang Okoro-led five-member panel of judges reserved their decision after hearing closing arguments from both parties.
Yusuf and the New Nigeria People Party had filed an appeal against the Court of Appeal’s November 17 ruling, which declared the candidate of the All Progressives Congress, Yusuf Gawuna, as the winner of the March 26, 2023 governorship poll.
Yusuf, whose sacking by the electoral tribunal was upheld by the Court of Appeal, vowed to reclaim his mandate at the Supreme Court.
The appeal court sitting in Abuja upheld the ruling of the tribunal that sacked Yusuf and declared Gawuna of APC as the winner of the March 18 election.
The Tribunal led by Justice Oluyemi Osadebay had nullified the election of Yusuf by declaring 165, 663 of his votes were invalid.
The tribunal held that the ballot papers were not signed nor stamped by the Independent National Electoral Commission.
Displeased by the tribunal verdict, Yusuf appealed against the judgment.
Delivering judgment on the matter on Friday, the appeal court held that Yusuf was not qualified to contest the election.
The three-member panel led by Justice M.A Adumeh held that Yusuf was not in the membership register of his political party.
Citing a provision of the electoral act, he said a party must have the names of its registered members both in hard and soft copies.
He also said that Yusuf did not put up any resistance against the allegation.
“If you claim you are a member of a party is not logical to say so yourself rather than by proxy? the judge asked.
He said Section 134 of the electoral act allowed the court to entertain an averment on the qualification of a candidate in an election.
However, at the proceeding on Thursday, Yusuf’s counsel, Wole Olanipekun (SAN), urged the court to set aside the decision of the appeal court and tribunal.
He asked the apex court to determine whether or not, the guidelines of INEC would be a basis for nullifying the election victory of his candidate who won the election by a margin of over 100,000.
Olanipekun argued that this is the first time in the annals of electoral jurisprudence that an election was nullified on the grounds that ballot papers were not signed or stamped at the back.
He said INEC guidelines do not envisage that the courts would nullify an election on the basis of INEC purportedly failing to stamp ballot papers on the back.
The lawyer also faulted the decision of the appeal court on its verdict on Abba’s membership of the NNPP.
He said, “The judgment of the lower courts is very unfair to the appellant and we urge your lordships to upturn it. The issue of Abba’s membership of the NNPP is a pre-election matter. The appellate court lacked jurisdiction to entertain the matter.”
The five-man panel led by Justice John Okoro asked Olanipekun if the issue brought before the apex court was raised or determined at the lower courts.
“I have one question for you. At both courts, was the issue of the source of ballot papers determined or raised at all?” Okoro asked.
“Nobody raised the legality or illegality of the ballots. They tendered the ballot from the bar. Nobody spoke to it,” Olanipekun replied.
“What I want to find out is if the ballots were illegal,” Okoro asked again, adding that “They were not illegal,” Olanipekun replied, saying the ballot papers were issued by INEC officials.
The All Progressives Congress counsel, Akin Olujimi, maintained that the Electoral Act mandates INEC presiding officers to sign the back of ballot papers after the conclusion of the election.
The apex court then asked Olujimi what the findings of the tribunal on the ballots were.
Olujinmi said the findings of the tribunal were simply that the ballot papers were not signed at the back, and not dated.
He said electoral irregularities are manifest on the disputed ballot papers.
On the issue of party membership, Olujinmi argued that the NNPP membership register did not show the name of Abba Yusuf on it.
Counsel for INEC, A.B Mahmoud, a Senior Advocate of Nigeria, supported the arguments of Olanipekun.
He submitted 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 Yusuf was not frontloaded along with the petition at the tribunal contrary to the Electoral Act.
“Those ballot papers, do they belong to you?, the justice asked.
“Yes, they were our ballot papers issued by INEC,” Mahmoud replied saying it was not the duty of a voter to check if ballot papers were signed or not, but that of the party agents.
He said INEC’s contention was that the tribunal went far beyond its powers in vetting each of the ballot papers in their chambers and not in open court.
Mahmoud contended that membership is an internal affair of a political party and Yusuf’s name was forwarded to INEC before the election while his party membership card was tendered in evidence at the tribunal.
Counsel for the NNPP, Chief Adegboyega Awomolo, said ballot papers were cast at the polling units but the APC legal team did not specify the polling units affected at the tribunal in line with the rules of the court.
Okoro asked him what should be the effect going forward when ballot papers that are issued by INEC are not stamped by its officials.
“Who should suffer? Is it the guy that voted, INEC or the person voted for?” Okoro asked.
Awomolo said ballot papers not signed ought not to affect the validity of an election.
“My submission is that election is the decision of the people,” Awomolo said, insisting that the tribunal was wrong to recount the ballots in its chambers.
The NNPP counsel urged the apex court to restore the 165,165 canceled votes of Yusuf and affirm his election.
Again, Olujimi rose and said the tribunal cross-checked the disputed ballot papers based on evidence argued upon at the open court.
After hearing the parties’ argument, the apex court reserved its judgment on the matter.
