Candidate Shagari: The Critical Point The Tribunal Missed In Sokoto

By: Aloy Ejimakor

Under the general rules of evidence, a court does not admit an item of evidence and then fail to adequately weigh its impact on the final judgment. A piece of evidence is admitted for a number of the many reasons that have either a direct or indirect bearing on the material facts at issue presented to the court for final adjudication. For instance, evidence is admissible simply because it is relevant, material, probative or for reasons of impeaching an opposite evidence, to rehabilitate an impeached evidence or just for identification. And once admitted a piece of evidence must be fully analyzed (not glossed over) and must appear to have been given its due evidentiary weight by the trier of fact before reaching a legal or factual conclusion on the opposite propositions in the case. The next big thing is adequate consideration of any existing legal precedent (and other laws of the land) known to be germane to the case. It therefore follows that any final ruling must represent the factual, legal (or constitutional) and even equitable conclusions logically drawn from a well-reasoned analysis of all the evidence adduced, nothing more, nothing less. Thus, any judgment seeming by its scanty analysis to have ignored admitted material evidence or minimized its legal impacts without cause, especially one that is weighty is likely to be summarily reversed or remanded on appeal brought for egregious error or abuse of discretion. And ditto for ignoring extant precedents and statutory provisions on point.

In the just concluded Sokoto governorship election petition, the learned tribunal appeared to have erred by either ignoring or failing to give due weight to competent evidence that carried the prospects of profound legal and equitable impacts on the final order. Further error is found in the tribunal’s amazing failure to develop corroborative evidence probative of the material issue of duality of party membership clearly barred under pertinent laws of the Federation of Nigeria. And by so doing, the tribunal may have missed certain critical elements present in the case, comprised of the following: a Supreme Court precedent; the Nigerian constitution (and the Electoral Act); and of course, a consequential party-in-interest, Muktar Shagari, previously the PDP candidate of record and now the deputy governor of Sokoto State. Let us now discuss all the points and elements in seriatim:

The robustly corroborated (and un-impeached) best evidence demonstrating that Governor Wamakko attended a members-only ANPP NEC meeting a clear two days after he was put on express notice that he has replaced Shagari as the PDP governorship candidate is critical parole evidence preponderating in favor of whether or not Wamakko was a bonafide member of PDP (and not ANPP) and therefore a lawful (or unlawful) candidate for the election. And here is why. Nigeria has a strict political party membership system, meaning that our laws do not yet recognize or tolerate candidates belonging to two different political parties at the same time (call it the ‘single party membership’ doctrine, if you will). Or a candidate who vacillates between two political parties with such alacrity that he can be held at law to have lost his membership of both parties. Thus, any evidence of record demonstrating that an individual presented as the candidate of one party continued thereafter to hold out to the whole world as simultaneously belonging to another party should, without more, immediately provoke a quaint material question of fact and law as to whether that candidate met the strict constitutional mandate of ‘single party membership’ or the implied prohibition against duality of party membership. Thus, Wamakko’s pre- and post-nomination appearance of dual or zero party membership is damning evidence likely to prove fatal to his claim of one membership in the PDP. But whether it is totally and solely dispositive of the issue as of the date nominations and substitutions closed is another conclusion to be drawn from other relevant and probative direct and confrontational evidence. Let us now examine some questions the tribunal should have posed in order to bring such other evidence to light.

First: Did ANPP disavow Wamakko as one of its own or expel (or even suspend) him subsequent (or even prior) to his celebrated adoption by the PDP as its governorship candidate? If the answer is no, then it becomes further evidence damaging to Wamakko’s self interest on the simple premise that it partly reveals the presence of simultaneous membership in two parties at the time his name was forwarded to INEC. Simple logic: You cannot use PDP as a sword and ANPP as a shield all a once as Wamakko seemed to have done affirmatively in writing by listing both parties as sponsoring him on an INEC form admitted into evidence. A joint candidate? No chance because that too is unknown to Nigerian black letter law, except to the extent that a party is free to engage in the legally harmless puffery of disowning their own candidate and telling their ranks to vote for another party’s candidate, such as in Imo, yet Ohakim was smart to have avoided the legal blunder of stating on INEC form that he was a joint candidate of PDP and PPA.

Second: Did Wamakko himself, upon learning of his adoption by the PDP immediately resign his membership of ANPP by some open and public declaration or through a contemporaneous correspondence to the ANPP to the point that can be held to have legally perfected such resignation? If no, then this too disproves or even directly impeaches any claim of a single membership in the PDP for Wamakko. Third: Did Wamakko contemporaneously accept his nomination as the PDP candidate either by an affirmative correspondence to the PDP or by other open and notorious method such as a public declaration, as is the convention with politicians running for office in Nigeria? Or did the ANPP promptly replace or drop Wamakko on the record with INEC consequent upon and subsequent to PDP’s adoption of him? If no, then that too detracts from perfecting his nomination and impeaches Wamakko’s defense-in-chief and thus escalates the proof that his nomination is fatally hit by the strict provisions of Section 177(c) of the Constitution. Fourth, and most importantly, the tribunal should have looked to the PDP constitution to determine whether Wamakko met the core conditions of membership in the PDP (as of February 5 and counting) in accordance with the contemplation of strict and perfected political party membership for all candidates as expressly mandated by Section 177(c) of the Constitution, which true meaning also implies that a candidate cannot be deemed a member unless he constitutionally met the conditions of membership as stipulated in the subject political party’s constitution; or as some might say - one is not to be regarded a member of a party simply by mere acclamation since every party’s constitution specified strict conditions to be met before anyone can be said to be a member.

The strict requirement of party membership being first in time is clear and unambiguous and therefore does not lend itself to the ‘chicken and egg’ puzzle. In other words, party membership is a condition precedent (not subsequent) for a nomination to pass constitutional muster. For instance, the PDP constitution contains clear provisions on how long one must be a member before qualifying to fly the party’s flag. It is likely that the party may itself flout this provision in other instances without consequences but where an election petition makes party membership of a returned candidate a central and legal issue, our adversarial system of justice demands further development of the evidence to determine where in fact the truth lies because the disputed victory will likely stand or fall on the sufficient proof of one of the two opposite claims. I do not concur with the tribunal’s self-ouster, because as a High Court by other name, the tribunal had clear jurisdiction to reach this issue and thus could have confidently embarked on a course to elicit rich and admissible evidence through direct and cross examination of qualified witnesses from the ANPP, PDP, and the DPP – the frontline party-opponents with standing and directly affected by the issue of where Wamakko’s membership in fact lies. And further corroboration should have been sought through judicial notice of media reports and other trustworthy contemporaneous information available in the public domain or through the many relevant records maintained by the ANPP and PDP on the subject of who met their constitutional definitions of membership and when such membership began or ceased. Chances are that once the tribunal takes this path, hostile evidence and other admissions against self interest from the PDP alone may stark against Wamakko to the point that he may no longer be able to rebut or admit of rehabilitation.

Therefore, assuming arguendo that answers to the foregoing questions are weighty and preponderated in favor of a subsisting membership by Wamakko in the ANPP and a concurrent absence of legal (or consummated) membership in the PDP, then the unrebutted record evidence-in-chief demonstrating that Wamakko held out to still be an active and principal member of ANPP two and more days after he was nominated by the PDP is at once irrefutably corroborated to the point that his nomination could be held to be violative of both the Constitution and the Electoral Act both in their letters and spirit, and therefore must fail as a matter of law. Recall the case of Kebbi, in which in the ordinary course of rendering a judgment compliant with the record evidence, a nomination faulted solely on grounds of a clumsy cross-carpeting formed the grounds for nullification and a judgment for a new election.

Now, the further question that arises is whether nullification of Wamakko’s victory on grounds of duality of (or zero) party membership should lead to an order for a new election between him (again?) and the other candidates; or between Muktar Shagari (whose substitution might now become nugatory by Wamakko’s fall) and the other candidates? Though not fully addressed by the briefs and arguments before the tribunal, PDP’s awkward substitution of Shagari is a dormant but the real equitable (or even legal) issue that immediately becomes preeminent once Wamakko falls on the murkiness of his true party membership. And the unchallenged evidence that Shagari was the PDP candidate of record with INEC before Wamakko came into play makes Shagari the sole consequential party-in-interest, though somewhat arguable by his failure to challenge his substitution or file a joinder. Therefore, in my view and in accordance with the laws of the land and the logics of the case at bar, a ruling that Wamakko was not a bonafide member of PDP as of the date of his nomination or within the statutory time-line must lead to a final order that he never existed as a candidate as a matter of law and thus constitutionally barred from contesting in any new poll. Any opposite view will lack merit unless it points to a clear and pre-existing political party platform, because our laws do not have room for independent candidates either. And there is more.

In Amaechi versus Omehia, which is partly in pari materia with Wamakko, a companion precedent was set that left undisturbed the status quo ante in relation to Ikuru (the Rivers deputy governor), who was the record deputy gubernatorial candidate to Amaechi with the INEC before transmuting to deputize Omehia. The court did so despite absence of any specific pleadings filed by Ikuru to recognize and preserve his legal status. The legal rationale is simple, and that is: throughout the pendency of the action, Ikuru remained to benefit one way or the other because, at law, he was seen to be a consequential party-in-interest simultaneously riding on the coattails of two adversaries – Omehia and Amaechi. As for Shagari, a win by Wamakko preserves his current status but if Wamakko lost, Shagari’s status rises on that account. You can say that Ikuru (and now Shagari) has best of both worlds, but I believe they deserved it because of their clean hands. It follows therefore that upon the tenors and reach of the Kebbi ruling and aspects of the Amaechi judgment as applied to Ikuru, there was only one choice left to the tribunal (once Wamakko falls) - a choice that is clearly within its original jurisdiction because as constituted, the tribunal bears the true statutory character and the wide jurisdictional reach of a High Court. Thus, the tribunal could have cited the ratio in the Kebbi case as a persuasive authority issuing from a tribunal of coordinate jurisdiction to nullify the elections, and proceed next to a companion ruling, half-relying on the equitable principles enunciated in Amaechi, to hold that Shagari (and not Wamakko) is retroactively the valid PDP candidate in any new election, keeping all the key kernels of the preceding arguments in view.   

Keep in mind also that the Amaechi judgment broadly created a new set of laws or clarified existing laws that all Nigerian courts hearing election petitions are bound to apply in making their rulings. Should any tribunal choose not to be so bound, then it must explain why, and no reason other than clear and profound differences in fact situations can hold water. Therefore, in accordance with the Constitution and the Electoral Act, it appears that Wamakko was never a lawful candidate for the governorship election. Shagari is the candidate on the temporal reach and authority of laws of Nigeria as set forth in Amaechi versus Omehia. That’s the law, not sentiments, thanks to a dogged DPP whose gutsy litigation provided yet another opportunity to develop our laws and deepen democracy. As a necessary aside, Professor Iwu should not again be the one to be blamed for what happened in Sokoto because had Iwu cited provisions of the statute to block Wamakko, every Nigerian would have fought him to a standstill for lacking the legal authority. And so, just like the elections the tribunals so far nullified, the facts of this case clearly strengthens the growing notion that it was not Professor Iwu that should carry the blame for election issues brought by an inadequate legal order and plenty of sly politicians intent on taking advantage if it.

Aloy Ejimakor is of Law Group International, Washington, DC. alloylaw@yahoo.com

Robot  # 1 | 28.11.2007 08:45

The tribunal may have missed certain critical elements present in the case, comprised of the followi...Read the full article.