Despite Justice Ambrosa-led Tribunal judgement on Rivers State Governorship Election, behold the position of the Court of Appeal on Card reader which the hatchet tribunal based its judgment; Agbaje v Ambode: Court of Appeal says Non-use of card reader or malfunctioning of card readers cannot invalidate an election.
Appeal Court explains that the Electoral Act predates the card reader
The Court of Appeal sitting in Lagos upheld the election of Lagos State Governor, Akinwunmi Ambode stating that the non-use of the card readers or the dysfunctional nature of the card readers cannot invalidate the Lagos State Governorship Election.
The court held that the Electoral Act (2010) as amended does not recognize the malfunctioning of a card reader as one of the factors that can lead to the nullification of an election.
This, the appellate court held, is because the Electoral Act predates the introduction of the card reader.
The Court of Appeal stated this in a verdict on a cross-appeal filed by the All Progressives Congress (APC) challenging parts of the Governorship Election Tribunal’s verdict in the case of Jimi Agbaje versus Governor Akinwunmi Ambode and others.
APC filed the cross-appeal on two grounds. In the first ground, it said the tribunal erred in law when, having held that Paragraph 14 of Agbaje’s petition challenged Ambode’s nomination, went ahead to hold that it was a valid ground.
The party said any complaint about a pre-election issue falls within the jurisdiction of the Federal or Lagos State High Court, therefore, the tribunal ought to have declined jurisdiction.
The party also asked that Agbaje’s petition be struck out because its paragraph 13b which complained about faulty card readers did not qualify as a ground to challenge the April 11 election.
The Court of Appeal, in a judgment by Justice Obande Festus Ogbuinya, resolved the first issue in Agbaje and PDP’s favour, and the second issue in APC’s favour.
A copy of the judgment, delivered on August 26, was obtained by our correspondent yesterday. Other justices on the 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.
The appellate court held that both the High Courts and the tribunal have concurrent jurisdiction over the issue of a candidate’s qualification/disqualification.
Justice Ogbuinyi held: “The cross-appellant (APC) implored this court to declare the paragraph 14 a pre-election matter cognisable only in the regular courts because it alluded to 21 days’ notice decreed in Section 85 (1) of the Electoral Act. The cross-appellant made heavy weather of this point.
“The paragraph 14 of the petition qualifies as a valid ground for querying the qualification of the fourth cross-respondent (Ambode) to contest the election.
“The trial tribunal is the forum competens for the first and second cross-respondents (Agbaje and PDP) to ventilate their grouse on his (Ambode’s) qualification/disqualification. Put simply, the trial tribunal was clothed with jurisdiction over paragraph 14 of the petition.
“In the end, I have no option than to resolve issue one against the cross-appellant and in favour of the first and second cross-respondents.”
Resolving the second issue in APC’s favour, the appellate court held: “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.
“On the whole, having resolved the two issues for and against the cross-appellant, the fate of the cross-appeal is obvious. It is partially-meritorious and succeeds in part. Consequently, I allow the cross-appeal in part.
“Accordingly, I affirm the portion of the trial tribunal’s decision declaring paragraph 14 of the petition as competent and triable by it. I set aside its part of the decision which approved paragraph 13 (b) as a competent ground for presenting a petition.”
From Busayo David
Coordinator Advocate For Good Governance