By Achilleus-Chud Uchegbu
The best Adelabu could do at this time is to take the free advice of Makinde and work towards another attempt in 2023. My position here takes bearing directly from the judgment of the Court of Appeal as delivered by Justice Abubakar Datti Yahya. After reading the entire judgment, one is sure that the court left Adelabu with no option. Let us consider the declarations.
Reliefs sought by Adelabu include: that Makinde was not duly elected as governor by majority of lawful votes cast; that Adelabu scored highest number of lawful votes cast; that he (Adelabu) be declared validly elected on account of scoring highest number of lawful votes cast. Alternatively, Adelabu asked that result of the election be nullified and an order for fresh election be made.
Those requests were refused by the Election Petitions Tribunal, which prompted an excursion to the Court of Appeal. The grounds upon which Adelabu appealed was that Makinde was not validly elected on account of lawful votes cast and as such his occupation of office as governor was invalid on grounds of corruption in the electoral process.
In the judgment, Justice Yahya declared: “However, in our further evaluation of the evidence led and the current position of the law, we cannot nullify the election. It is only when the election is nullified that the reliefs of order returning the 1st appellant (Adelabu), or ordering fresh election can be granted. Again, since we have re-evaluated the evidence and come to a conclusion, the issue of ordering a re-hearing of the petition does not arise, even if there is still time to do that.”
In his contribution to the judgment, Justice Mohammed Ambi-Usi Danjuma held thus: “The Election Petition Tribunal is a special court created for sui generis litigations of political disputes in elections which are time-bound in prosecution and their adjudication; and in this wise, within 180 days from the date of filing of the petition. The rules governing ordinary civil proceedings do not apply to the sui generis genre of election petitions and appeals. The time has so expired and no purpose will be served in ordering a rehearing of the petition, the subject of this appeal”.
Justice Danjuma also held that “we can neither peep into the status of the declaration and return as made nor order the tribunal to conduct a rehearing outside its limited period of mandate for the petition. After the set time for its determination, the tribunal has no jurisdiction to entertain any further action…the life span of the suit or petition has expired, it is lifeless as relating to its trial at the tribunal. There will be no cause of action and no jurisdiction at the tribunal.”
In the mind of Justices Yahya and Danjuma, Adelabu’s appeal is dead and no longer has any life. It also cannot be resurrected by any judicial pronouncement. With the time having lapsed, the only hope of resurrecting it would be to return to the legislature, not Supreme Court, to seek an amendment of the law establishing the tribunals and to extend their lifespan.
So, can the Legislature or the Supreme Court help Adelabu’s chase? The apex court had said this is not possible noting “an instance where a legislative re-jig or amendment is required to confer powers in a tribunal constituted to proceed to hear and determine matters, where a decision had been set aside, upon breach of fair hearing, -as if it were a new or fresh trial” amounts to tyranny and an aberration.” Who will commit these for Adelabu’s sake? The Supreme Court held in INEC v Nyako and others that “a constitutional power should not be used to attain an unconstitutional result.”
This simply means that even the Supreme Court, or legislature, cannot give life to the Election Petition Tribunal in order to re-hear, or, re-try Adelabu’s petition. Doing so, the Supreme Court also said, would “mean judicial tyranny and an aberration.”
Justices Isaiah Olufemi Akeju and Jamilu Yammama Tukur agreed with the above arguments and appended their signatures to it. And in his dissenting judgment, in which he disagreed with the opinion that Adelabu suffered unfair hearing, Justice Moore Aseimo Abraham Adumein held that even if votes which Adelabu contested were discounted from Makinde’s numbers, Adelabu would still not have been able to win the election.
According to Justice Adumein, “the votes scored by APC in the polling units where the petitioners called direct evidence to prove their allegations is as follows: APC 2,868 and PDP 5,302. If these votes were cancelled as suggested by the petitioners’case, the 2nd and 3rd respondents (Makinde and PDP) would still be in the lead as follows: APC 357,982 – 2,868 =355,114, while PDP is 515,621 – 5,302 = 510,319. The above finding has not been faulted by the appellants. There is no basis, therefore, for this court to nullify the election of the 2nd and 3rd respondents (Makinde and PDP).”
Justice Adumein further held that “the appellants claimed declaratory reliefs, which were earlier reproduced in this judgment. The law is that in a declaratory claim, the claimant, petitioner or plaintiff must succeed on the strength of his case not on the weakness of his opponents case. Therefore, the law recognises that the burden of proof does not shift to the defendant or respondent until the claimant, petitioner or plaintiff discharges the burden on him. In this case, the petitioner (Adelabu and APC) failed to prove their election petition. It is for this reason that I dissent from the decision of my learned brothers and hold that the appeal lacks merit.”
Summary of the above arguments is that Adelabu’s chase of the March 9, 2019 governorship election is judicially dead and cannot be resurrected. But he has a leeway-to save his energy for 2023 and allow Makinde focus on his assignment. As it is, no court will declare him winner of an election in which the valid votes did not favour him. Also, no court will order a re-trial or re-hearing because the tribunal that heard his petition initially no longer exists and cannot be brought back to life by a pronouncement of the Supreme Court. So, what exactly is he still chasing? Wind? Maybe.
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