By Ndahi Inusa, Maiduguri
THE Court of Appeal, sitting in Abuja Division on Friday affirmed Dr. Midala Usman Balami as the winner of Hawul/Askira- Uba federal House of Representatives election in Borno state.
The court, in a unanimous decision by a three-member panel of justices, dismissed the appeal before it by the candidate of the All Progressives Congress, APC, Hon. Tarpaya Asarya, now commissioner of Commerce, Trade and Investment in Borno state.
Dr. Balami is the only federal Lawmaker elected on the platform of the opposition Peoples Democratic Party, PDP in Borno state during the february 25th, 2023 general elections, while all other positions contested were won by the ruling All Progressives Congress, APC.
During the struggle, Balami had been a regular visitor to various Courts, even when his aspiration were challenged by his opponent in the PDP primaries, but won all his case up to the supreme Court when he was declared the authentic candidate.
The APC candidate, through his team of lawyers led by Yusuf Ali SAN, Ayo Olanrewaju Esq. amongst others in their submission at the Appeal Court, contended that the PDP and its candidate did not secure the majority of lawful votes cast at the 25th february 2023 election, even as they alleged that the process were marred by irregularities.
Additionally, they alleged that Balami was not duly qualified to be candidate of the PDP, asking the court to declare the petitioner the authentic winner of the election.
Recall that the APC and its candidate, Mr. Tarpaya Asarya (1st and 2nd Petitioners) had earlier dragged the PDP, its candidate, Dr. Balami and the Independent National Electoral Commission as 1st, 2nd & 3rd Repondents to the tribunal, seeking nullification of the election, alleging that the result declared by the 3rd respondent in favour of the 2nd respondent is not a correct representation of the outcome of the election, since elections was not conducted in one unit and also cancelled in 10 registered and accreditated Polling Booths/ Units across the two local government areas.
The petitioners further claimed that the result declared by the 3rd Respondent showed that the 2nd Respondent scored a majority of the votes cast with 28,203 votes, while the 2nd petitioner scored 25,383 votes and the difference in votes between them is only 2,820 votes.
But delivering the judgement, the three-man panel, under the Chairmanship of Justice M.E Anenih, Justice A.I. Ityonyman and Justice A.O. Adeniji held that the petition brought before the tribunal lacked merit.
The Tribunal also held that “the 2nd Respondent was qualified and validly sponsored to contest the election.
“It also held that the Petitioners did not discharge the burden satisfactorily that there was cancellation and none voting in the 11 Polling Units which the APC and its candidate, Mr. Asarya claimed has substantially affected the results declared.”
Specifically, the Tribunal held that the Petitioners did not prove the margin of lead principal having not led evidence on the Permanent Voters Card, PVCs collected in the alleged units.
To this end, the Petition therefore lacks merit, and the Tribunal on 25th August, 2023 accordingly dismissed the case.
Dissatisfied with the Tribunal’s judgement, APC and its Candidate, Asarya approached the appellate Court with No. CA/G/EP/HR/BR/01/2023 in the case of ASARYA TARPAYA & ANOR v HON. (DR.) MIDALA USMAN BALAMI & ORS.
Meantime, while upholding the verdict on Friday 20th October, 2023, the appellate court panel led by Justice Chioma Nwosu-Iheme, held that under section 285(1) of the 1999 Constitution, as amended, the tribunal had a special jurisdiction to only determine whether anyone was validly elected.
It held that the scope of the jurisdiction conferred on the tribunal by the Constitution could not be expanded to include the determination of the validity of the conduct of primary election or nomination of candidates by political parties.
The appellate court held that though the issue of eligibility of a candidate is both a pre and post election matter, “the Appellants however chose a wrong venue to ventilate their grievances,” it added.
It held that contrary to claim by the Appellants, INEC, confirmed that results were cancelled in only five polling units in the constituency.
The court held that whereas the margin of lead claim of the APC and its candidate was based on voters register, they, however, failed to indicate the number of Permanent Voters Card, PVCs, that were collected in the affected polling units.
It held that the Electoral Act 2022 introduced a new electoral regime that entail the use of collected PVCs and number of accredited voters to establish the voting population of every polling unit.
Consequently, it resolved the case against the Appellants and dismissed the appeal.
Reacting to the judgement, Hon, Dr. Balami lauded the judiciary which he described as the last hope of the common man which would ginger him to do more to the people in the constituency, Borno state and Nigeria as a whole.
Maintaining that his victory at the poll was an expression of the will of the electorates.
He then urged his opponent to sheath the sword and join him to move the constituency to a greater height.
Our Correspondent observed that, Hon. (DR.) MIDALA USMAN BALAMI’s formidable legal team was led by Chief Titus O. Ashaolu, SAN; Gbenga A. Ashaolu, Esq.,Llm, Fatima A. Shehu Esq., (Mrs.); Christopher O. Richard Esq., amongst others. While the PDP legal team was led by Tale Alabi Esq., Llm, Fcia, and Ibrahim H. Ngada Esq.; B. F. Folorunsho amongst others. While the team for Inec was led by M. S. Diri SAN.
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