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Bayelsa tribunal verdict evokes Judicial anarchy -By Damilola Olaleye, Esq

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Removal of state governors from office through electoral jurisprudence has become a child’s play in Nigeria. Nothing exemplifies this unwholesome development than the recent ridiculous majority decision of the Bayelsa State Election Petition Tribunal which nullified the election of Governor Duoye Diri upon a belated petition filed by the Advance Nigeria Democratic Party (ANDP), which claimed it was excluded from the 2019 election. Clearly, the majority Judges, the duo of Yunusa Musa, J., and Sikiru Owodunni, J., did a hatched job that is made to look good. The jurisprudential rationale behind the removal of Mr Diri by the majority judgment of the Tribunal defies all known laws and legal procedures. It is not only questionable and unreasonable but shady and disgraceful. It is an outrageous debasement and bastardization of the sacredness of the Judiciary and authority of the Supreme Court.

Election into the governorship seat of Bayelsa State was held on November 16, 2019. INEC declared and returned Lyon David Pereworimin winner of the election on November 17, 2019. Political parties and persons who felt dissatisfied with the outcome of the election filed petitions against the return and declaration of INEC. While the petitions were pending, the Supreme Court, on February 13, 2020 through a pre-election matter in Suit No. SC/1/2020-Peoples Democratic Party v. Biobarakuma Dei-Eremienyo & 3 Ors., nullified the declaration and return of Lyon and ordered INEC to withdraw his Certificate of Return and that of his deputy and declare the person with the highest number of votes and geographical spread the winner of the election, who happened to be Duoye Diri. By implication, all pending petitions against Lyon automatically abated by the Supreme Court’s unquestionable final pronouncement. They were accordingly withdrawn.

With the decision of the Supreme Court in Biobarakuma’s case and the refusal of the apex court to review same, one had thought that all issues relating to the 2019 governorship election in Bayelsa State had finally been laid to rest. Of course, there ought to be an end to litigation. It is recalled, it was on account of this case that two foremost Nigerian lawyers, Chief Afe Babalola, SAN and Chief Wole Olanipekun, SAN, were heavily penalized by the Supreme Court.
The case before the Tribunal was a pre-election matter regarding the validity or otherwise of the nomination of the candidate of ANDP but was railroaded and transfigured into a post-election matter. The case ought to have been declared dead on arrival at the Tribunal. Most regrettably, the Tribunal unjustifiably assumed jurisdiction over a matter constitutionally reserved for the High Court. The decision of the majority Judges itself constitutes an affront to the pre-eminence of the Supreme Court as the final court in the land, which already affirmed Duoye Diri as the duly elected governor of Bayelsa State. What the majority judgment of the Tribunal did, in removing Governor Diri from office, was simply to undo what the Supreme Court had done. The action of the Tribunal is nothing short of judicial recklessness and insubordination. It is indictable and condemnable as it is capable of introducing chaos and anarchy to administration of justice.

Some pertinent questions arise here: which election are we really talking about? Was it the November 16, 2019 election or was there another election? It is on record that the petition was filed on February 26, 2020 three whole months after a declaration was made by INEC on the election! It is important to note that ANDP’s petition was not against the declaration and return made by INEC or alleged malpractices at the election or invalid votes cast but against the party’s exclusion from the November 16, 2019 election. Where was ANDP in all those days between November 2019 when it was excluded from the election and February 2020 when it filed its petition? What cause of action was it pursing? When did the cause of action arise? These and other sundry questions render ANDP’s petition and the tribunal’s adjudication over same suspect and disturbing.

Certain facts about the case remain indisputable. The petitioner, ANDP, sponsored Lucky King-George as its governorship candidate at the 2019 governorship election in Bayelsa State. His name was submitted with that of David Peter Esinkuma as his running mate. INEC found the nomination of King-George defective because, his running mate, Peter, was underage. He was 34 years old as against the constitutional age requirement of 35 years. On September 13, 2019, INEC, in consonance with its constitutional duties, wrote the party, ANDP, drawing its attention to the constitutional affliction of its candidate. INEC’s power to do this is not in doubt. Paragraph 15 (a) of the Third Schedule to the Constitution, empowers it “to organize, undertake and supervise elections.”Having regards to the ordinary lexical meanings of the words used in paragraph 15 (i) of the 3rd Schedule, there is no way INEC could function effectively without being able to carry out rudimentary administrative screening of a candidate’s electoral qualification requirements, in order to satisfy itself that such particulars as presented by aspirants are in conformity with the provisions of the Constitution. This, clearly, was the essence of INEC’s letter of September 13, 2019. It was not a disqualification per se but an administrative step taken by INEC to draw the attention of ANDP to the constitutional deficiency of its candidate.

ANDP did not take advantage of the benevolence of INEC’s letter of September 13, 2019. It was not until September 21, 2019 that the ANDP forwarded the name of another underage deputy-governorship candidate, one Miss Inowei Janet, as substitute for David Peter. The fact that Janet was underage was not contested. The point duly established before the Tribunal was, as at September 21, 2019, when Miss Janet’s name was submitted as a substitute, it was no longer possible to make a new nomination for the position of the deputy governor. This fact was communicated to ANDP through a letter dated September 27, 2019. INEC wrote to the petitioner stating that the deadline for submission of nominations had expired. INEC’s letter further notified ANDP that in the circumstance, the name and logo of the party would not appear on the ballot. ANDP, upon the receipt of the letter responded, vide another letter dated October 3, 2019 urging INEC to rescind its decision. INEC, appropriately, did not. The election, therefore, held on November 16, 2019, without the logo and the name of the party on the ballot, and rightly so, as there was no valid nomination of a governorship candidate by ANDP.

From the foregoing, the core issue before the learned Tribunal was the validity or otherwise of ANDP candidate’s nomination: was the candidate of the petitioner validly nominated to contest the Bayelsa State governorship election of November 16, 2019 or not? For some inexplicable but curious reasons, the majority judgment failed to identify this crucial issue. It proceeded on a wrong course, blindly, in my view, by ascribing prominence to ANPP’s allegation of exclusion. Section 138(1)(d) of the Electoral Act, upon which the petition was predicated permits an election to be questioned on the ground that the petitioner or its candidate was “validly nominated but unlawfully excluded.” Basically, a candidate must be validly nominated in order to be eligible to contest an election. The position of the majority judgment, affirming INEC’s letter of September 13, 2019 as a disqualification of the petitioner’s candidate buttresses this fact. A suit arising therefrom will pass as a pre-election matter within the meaning of Section 285(14) (c) of the 1999 Constitution, as amended by the Fourth Alteration, which defines a pre-election matter as “a political party challenging the actions, decisions, or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election”.(underlining mine). Such a suit is constitutionally required to be filed within 14 days from accrual of a cause of action, which in this case, ran from September 27, 2019 when ANDP was informed of the fact that its name would not be included in the ballot. Section 258 (9) of the Constitution provides that: “Notwithstanding anything to the contrary, in this constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of event, decision or action complained of in the suit.”

The learned Tribunal gravely erred in treating ANDP’s case as a post-election matter cognizable by it and also holding that Section 285 (14) is inapplicable. Nothing can be more perverse. Upon the receipt of INEC letter of September 27, 2019, it was open to ANDP to proceed to challenge the decision of INEC on the matter. The party did nothing. Janet’s name was submitted outside the widow of substitution, as demonstrated through INEC’s letter of September 27, 2019.The majority Judges deliberately shut their eyes to the content of the letter and erroneously found that Janet was substituted within time! In any event, neither David nor Janet was qualified to contest the election, as both were underage.

The dissenting judgment of Justice Muhammad I Sirajo, J., is commendable. His Lordship came out boldly and resisted the misguided but avoidable errors, questionable postulations and pontification of his learned brothers. His dissenting judgment is an illustration of judicial courage and steadfastness, as against the shenanigan, chicanery and vulnerability or timidity demonstrated by their lordships, the duo of Justices Yunusa Musa and Sikiru. M. Owodunni that delivered the majority judgment. The dissenting judgment appreciated the facts in their right perspectives. It appropriately treated the case as a pre-election matter and correctly held that it was statute-barred.

The final point to address is the status of the All Progressives Party (APC), in the most unlikely event that a re-run election will hold in Bayelsa State in accordance with the order of the majority judgment. Surely, APC stands no chance of presenting any candidate at the re-run election, its candidate having been disqualified by the Supreme Court. INEC will have to conduct the election with the list of candidates used for the nullified election, excluding the APC candidate. The position of the law remains as it was in Labour Party v. INEC, to the effect that where a general election has been held and a candidate who ought to have been part of the election was unlawfully excluded and the election is subsequently either cancelled by INEC or nullified by an order of a court or tribunal and a re-run is ordered, the re-run refers to that election and does not admit of new candidates since the period for nomination has lapsed.

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