By Tobi Soniyi in Abuja
Justice Obande Festus Ogbuinya of the Court of Appeal Abuja who gave a dissenting judgment last Thursday in the appeal challenging the decision of the Kogi State Governorship Election Tribunal has said that Yahaya Bello of the All Progressives Congress did not participate in all the processes of the election.
The justice who wrote a minority judgment said that the declaration of Bello as the duly elected governor of Kogi by the Independent National Electoral Commission (INEC) was in breach of section 141 of the Electoral Act 2010.
Based on this, the learned justice voided the declaration.
Justice Ogbuinya held that INEC ought to have opted for a fresh election immediately Bello was nominated by the All Progressive Party (APC) to replace the late Prince Abubakar Audu who died towards the tail end of the November 21, 2015 gubernatorial election
In his dissenting judgment, the Appeal Court justice held that Bello was not duly elected in the eyes of the law because he did not participate in all the stages of the election as compulsorily demanded by section 141 of the Electoral Act.
Justice Ogbuinya in the minority judgment specifically held that since Bello did not participate in the November 21, 2015 election but only in the December 5, 2015 supplementary poll, he could not be said to have participated in all the stages of the Kogi state governorship election as envisaged by the required law.
“For the avoidance of doubt I hereby reproduce section 141 of the Electoral Act. “An election tribunal or court, shall not under any circumstances, declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.
“This provision is obedient to clarity in that, it is unambiguous. Interestingly, it has fallen for interpretation before the apex court in avalanche of cases.
“In proceedings, germinating from pre-election matters based on intra-party disputes, the regular courts are allowed to declare a person who did not partake in all the stages of the election as a winner. Contrariwise, the tribunals and the court, especially the Court of Appeal exercising first instance jurisdiction in presidential election petition proceedings, are not permitted to declare any person who has not fully participated in all the stages of the election a winner.
“Put simply, while the regular courts are not bound by the provision of section 141 of the Electoral Act 2010, the tribunals must willy-nilly, bow to the peremptory injunction in the provision of section 141 of the Act”.
Justice Ogbuinya said that in the instant case, the appellant (Captain Idris Wada) complained that Bello did not take part in the election of November 21, 2015 and his return should not have been upheld by the trial tribunal.
More to follow