Femi Falana’s involvement in the Kano governorship appeal

In Obi & Anor. V. INEC & 3 Ors. Appeal number SC/CV/939/2023, which was recently concluded and in which the Supreme Court upheld President Bola Ahmed Tinubu’s victory in the 2023 election, the court expressed disapproval at certain attorneys’ and litigants’ practise of bringing cases before the Court of Law to a media trial.

“Let me say a few words concerning issue number seven, which is whether the lower Court was right in its use of disparaging words against the Appellants in its judgement evincing hostility and bias against the Appellant thereby violating their right to a fair hearing and occasioning a great miscarriage of justice,” the Apex Court held, upholding the Court of Appeal’s earlier disapproval on the same issue. Having read the court’s decision below and considering the context in which such remarks were used, I believe that they were not intended to belittle the appellants or their legal representation. We will continue to use language carefully because it is part of our training as judges. When their cases are before the court, litigants are advised to have faith in the court. These days, it is quite inappropriate to do so while a case is pending in court. SPEAKER ANALYSES THE CASE AND REACHES A CONCLUSION DURING PRESS CONFERENCES.

Because of this, some of their adherents threaten justices and judges with messages. Court cases are considered subjudice, and as such, parties involved, as well as their counsel, ought to refrain from participating in media trials and rendering judgements. I don’t need to elaborate on this. For the wise, one word suffices.”

You may remember that the Labour Party intimidated the Justices of the Court of Appeal and used media trials while its petition against President Tinubu’s election was pending. The five-member panel of the Court of Appeal’s Justices was threatened, blackmailed, and coerced using a variety of strategies, including the dissemination of negative propaganda and blatant misinformation about the resignation of one of the Justices overseeing the case. The goal of sponsoring a number of media appearances and evaluations was to sway public perception. The Supreme Court made the aforementioned declaration in light of the aforementioned.

Interestingly, the strategies are also used by the New Nigeria Peoples Party (NNPP), which was proclaimed the victor of the Kano State gubernatorial election. In actuality, things became worse when senior party figures, including as the secretary of the Kano State government, commissioners currently in office, and other senior government figures, staged demonstrations during which they threatened to assassinate the tribunal’s judges should they rule against the NNPP candidate.

As everyone is aware, an appeal was filed after the verdict was rendered by aggrieved parties. However, NNPP must keep putting the matters brought before the Court of Appeal through media trials. It is not over yet. And our contentious Femi Falana SAN is none other than their willing spokesman. Recall that at the Supreme Court’s 2022 Legal Year Ceremony, Mr. YC Maikyau SAN, the President of the Nigerian Bar Association, called him out for his unethical behaviour. This was in response to his prior behaviour, in which he mocked the judiciary, albeit ignorantly, for no other reason than to gain quick notoriety and maybe some satisfaction. It is established that remarks regarding matters that are still pending before the court are forbidden by Rule 42(2)(b) of the Rules of Professional Conduct for Legal Practitioners. As they say, a leopard never changes its spots. Falana is unchangeable. He has made it his mission to defend the NNPP’s plea in public forums. He said that the Tribunal’s judges were incorrect and that it was illegal to expunge the NNPP votes since they were not signed and stamped.

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All that the aforementioned remark is is an explanation from the perspective of not knowing the relevant case law. Per ALI ABUBAKAR BABANDI GUMEL, JCA at p. 38-39, paras. C-E, the Court of Appeal, which at the time was the final court in election jurisprudence, held that the validity of votes cast on ballot papers that were neither stamped nor signed by the presiding officer was settled as far back as 2009 in the case of AMADASUN & ANOR V. ATIVIE & ORS (2009) LPELR-3761(CA).

Regarding the specific issue, learned Attorney Mr. Osifo argued vehemently on behalf of the First and Second Respondents that the votes in paragraph (a) are not included in the cancellation of votes. As previously said, there are 10,789 votes in paragraph (a). They were claimed to have originated from ballots that had not been signed or stamped by an official INEC officer. We’ve been informed that they go by the title “Presiding Officers.” It should be mentioned that a Presiding Officer is required by INEC’s Manual for Election Officers to prepare the ballot papers for each election by signing and stamping the back of each one. A Presiding Officer at an election must reject a ballot paper if it has not been stamped and signed by him or another INEC officer who has been properly authorised in that regard. This is another extremely important election rule. This is where I’m thinking pretty clearly. As previously inferred, any vote in an election that was not legitimately cast may be invalidated following complete verification.

Any ballot that is not signed and stamped has to be returned. A ballot that is returned unapproved is not valid for that particular election. Undoubtedly, a vote that is invalidated on a ballot cannot be considered valid. Therefore, it is absurd for learned Counsel Mr. Osifo to contend that paragraph (a) pertaining to and concerning “invalid ballot papers (by virtue of not being stamped and signed) I think the cancellation of the 10,789 votes duly and properly found to have been conveyed by invalid ballot papers was a necessary effect and consequence” is not included in the cancellation made by the lower court.

Mr. Femi Falana, SAN is therefore uninformed to argue that the Court’s decision is illogical. Mr. Falana further argued that, even in the event that it were legal, nullifying the votes would be equivalent to the court penalising the victor for INEC’s wrongdoing. It is significant to note that the possibility of importing ballots from another polling place to support the announced winner’s votes is one of the reasons why such ballots are deemed invalid. Therefore, it’s possible that INEC and the announced winner conspired to import the ballot papers. Therefore, it is incorrect to argue that the declared winner is receiving punishment for the incompetence of INEC. The law established a basis for contesting an election in the event that there was a significant violation of a legal provision during the election process. Furthermore, INEC is the only organisation authorised by the Constitution and the Electoral Act to oversee election administration. Therefore, it stands to reason that a challenge to INEC’s behaviour during the election is a challenge to its non-compliance with legal provisions. I am not aware of any clause in the Electoral Act that states that the court should not impose the consequences of non-compliance when it is demonstrated, unless the winner is shown to be at fault.
With all due respect to the Falana SAN, it is therefore absurd to argue that the Electoral Act contains no clause enabling INEC to subtract illegitimate votes from a candidate’s total number of votes cast.

The Electoral Act of 2022, sections 44 to 66, clearly show that the opinion is false. Given that Falana is not regarded as an authority on electoral petitions, one may not be shocked and may overlook his ignorance. As far as I am aware, Falana has never brought a case before the Tribunal or the Court of Appeal. As of right now, the best that NNPP can do is hire him as its media counsel rather than assigning him to one of the attorneys to handle the appeal.

Thus, I concur with the Supreme Court in directing Mr. Falana to permit the courts to carry out their duties. If the NNPP has faith in his abilities, he can present its case in court. Once the appeals procedure has been completed, he should write a well-reasoned paper demonstrating how the court’s decision and the authorities’ backing are inconsistent. That is the only way to progress the law; otherwise, his actions amount to nothing more than dishonest behaviour meant to degrade the judiciary by misrepresenting the relevant legal statutes to credulous and unwary members of the public. Law is debated in court and in well-written articles, not on political talk shows.

Hamza Lawal is a legal practitioner based in Kaduna state.