The Independent National Electoral Commission’s Resident Electoral Commissioner, REC, for Adamawa State, Hudu Yunusa Ari, Esq, mni, has called on the Nigerian Bar Association, NBA, to stay action on the alleged moves to refer him to the Legal Practitioners Disciplinary Committee for disciplinary action.
Hero Hudu, in a petition to the umbrella body of lawyers, argued that the subject matter of his actions is pending before the Adamawa State High Court in Charge No. HC/ADSY/15/2023, which was filed on July 5, 2023, and that the move to discipline him would amount to double jeopardy since the matter is before a court of competent jurisdiction.
Hudu, who does not seem to agree with his suspension as REC, said referring him to the Legal Practitioners’ Disciplinary Committee might amount to a breach of his right to a fair hearing contrary to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as Amended.
Hudu, who is a lawyer, said the NBA has been at the forefront of advising against comments or taking steps on matters pending before courts of law in the overall interest of justice.
Read below the full text of the petition:
Dear Mr. President,
RE: FALLOUT CONCERNING MY ROLE AS RESIDENT ELECTORAL COMMISSIONER CONCERNING THE 2023 ADAMAWA STATE GOVERNORSHIP ELECTION. REQUEST FOR STAY OF ACTION THERETO.
Kindly refer to the above subject matter.
- As a member of our revered Nigeria Bar Association (NBA) and a law-abiding citizen of the Federal Republic of Nigeria, it is imperative for me to write this letter following wide spread reports in dailies, publications and the social media that I would be referred to the Legal Practitioners Disciplinary Committee, LPDC, following my role at the Adamawa State supplementary Gubernatorial Elections of the 15th April, 2023.
- Mr. President, the circumstances which led to my actions as the Resident Electoral Commissioner of the Independent National Electoral Commission (INEC), hereinafter referred to as the Commission, which is allegedly the loadstar of my reference to the Disciplinary Committee is also the subject matter in Suit No. FHC/ABJ/CS/935/2023; Charge No. HC/ADSY/15/2023, and Election Petition No. EPT/AD/GV/01/2023 are all pending before superior courts of record in Nigeria for the interpretation of sections 144 and 145 of the Electoral Act, 2022, regarding the proprietary or otherwise of my declaration of Aishatu Ahmed Dahiru as winner of the Adamawa Gubernatorial Elections. Indeed, on 22nd July, 2023, I would have had an opportunity of presenting those facts at the Adamawa State Governorship Tribunal, for the benefit of the whole public and for posterity’s sake, but for the sustained objection of the Respopondents who objected to my being a witness in the Petition of Aishatu Ahmed Dahiru.
- Mr. President, as legal practitioners, we have been admonished to refrain from making comments on issues that are still pending before the courts so as not to prejudice them. With the preceding in mind, I am constrained, out of my deepest respect for the NBA and the rule of law, to only, briefly, state the facts, in order keep you abreast with the events that led to the subject matter of the alleged intention to bring me before the Disciplinary Committee and which, as I earlier mentioned, is still subject of various litigations.
- I would continue to maintain the position, due to documents available to me and now before the Tribunal that on the 15th April, 2023, I was compelled by the prevailing circumstances at the time and for the need to uphold the integrity of the Commission to declare Aishatu Ahmed Dahiru as winner of the Adamawa Gubernatorial Election based on the vacuum created as a result of the complicity of the Returning Officer and two National Electoral Commissioners aimed at thwarting the transparency of the said elections.
- It is pertinent to note that the Commission, who is the 1st Respondent in the Election Petition, which basically revolves round the lawfulness or otherwise of my declaration, resulting to my suspension from duty, litigations and the speculations of disciplinary action against me, listed 25 witnesses but could not produce any. The same applies to the 3rd Respondent, PDP, who listed 15 witnesses. Similarly, the 2nd Respondent, His Excellency, Governor Ahmadu Umaru Fintiri listed 15 witnesses but was only able to secure one hostile witness who gave evidence in support of the Petition.
- Sir, the provisions of sections 144, 145 and 149 of the Electoral Act, 2022, which deals with the prosecution of offences, those entitled to prosecute and the validation of actions by INEC officials is yet to be determined by the Federal High Court in Suit No. FHC/ABJ/CS/935/2023, which seeks the determination, inter alia, of:
“WHETHER having regard to the provision of Section 144 of the Electoral Act 2022, the Defendant can initiate and/or continue to prosecute electoral offenders under the Act when the said prosecution is with regard to the subject matter of an election petition pending before the Governorship and States Houses Election Tribunal sitting at Yola, Adamawa State.”
- For the benefit of doubt, sections 144,145 and 149 of the Electoral Act, 2022 provides that:
“144. The Commission shall consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offence disclosed in any election petition. 145(1) An offence committed under this Act shall be triable in a Magistrate Court or a High Court of a State in which the offence is committed, or the Federal Capital Territory, Abuja.
(2) A prosecution under this Act shall be undertaken by legal officers of the Commission or any legal practitioner appointed by it.”
“149. Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or things done by the official in pursuance to the provisions of the Constitution or of this Act, or any rules made thereunder remain valid, unless otherwise challenged and declared invalid by a competent court of law or tribunal.”
- Mr. President, as earlier stated, the subject matter of my actions is pending before the Adamawa State High Court in Charge No. HC/ADSY/15/2023 which was filed on 5th July, 2023, and your alleged anticipated referring me to the Legal Practitioners Disciplinary Committee may result in double jeopardy against me and a breach of my fair hearing contrary to the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999, as Amended.
- We are optimistic that the alleged plans to refer me to the LPDC will remain only an allegation as our dear Nigeria Bar Association, has been in the forefront of advising against comments or taking steps on matters pending before courts of law in the overall interest of justice.
- It is in the light of the above, especially the pending cases and Criminal Charge on the same subject matter, THAT I REQUEST that you stay any action regarding the subject matter of my duties as Resident Electoral Commissioner during the Adamawa Gubernatorial Elections and to refrain from referring the matter to the Legal Practitioners Disciplinary Committee, as to do otherwise would violate sections 144, 145 and 149 of the Electoral Act; Section 36 of the Constitution and; will grossly undermine the proceedings in the various courts.
- Please accept the assurances of our highest regards
Yours faithfully,
HUDU YUNUSA ARI, ESQ.
Resident Electoral Commissioner, Adamawa State.