A Channels TV report, published on 22 February 2020 under the title, “Bayelsa Election: Falana Says Supreme Court Is Wrong, Lacks Jurisdiction.” (see https://www.channelstv.com/2020/02/22/bayelsa-election-falana-says-supreme-court-is-wrong-lacks-jurisdiction/), had quoted fiery lawyer and human rights advocate, Mr Femi Falana, SAN, as criticizing the Supreme Court of Nigeria over the apex court`s February 13, 2020 decision on the 16 November 2019 governorship election in Bayelsa State. Hear the Learned Senior Advocate:
“…the apex court treated a pre-election matter as a post-election case, the apex court lacked the jurisdiction to entertain the (Bayelsa) matter, and that the matter should have gone before the Election Petition Tribunal. What their Lordships ought to have done was to ask the lawyers, ‘can you address us with respect to our jurisdiction?’ “Because Section 133 of the Electoral Act stipulates that upon the conclusion of an election and once candidates are declared, any challenge of the conduct of the election, of the qualification of the candidates shall be heard and determined by an Election Petition Tribunal. The election was held on the basis of the judgement of the Court of Appeal which was to the fact that yes! Degi-Eremieoyo changed his name many times, not that he forged any of his certificates; there was no such proof. Therefore, he can contest the election. On the basis of that judgement, the people voted; which means by that judgement, the election was valid and legal.As of that date, there was no pending appeal before the Supreme Court whereby INEC could be accused of having violated the doctrines of lis pendens i.e. ‘since you knew a case was in court, why did you hold election? As was the case of Peter Obi and INEC,” he added…. it was after the conclusion of the election that the PDP filed an appeal in the Supreme Court. With profound respect, the attention of the Supreme Court was not drawn to the legality of that appeal; the case had become spent
With the greatest respect to Mr Falana, I think the Supreme Court rightfully exercised jurisdiction over the Bayelsa Governorship election matter. For the following reasons, I respectfully believe Mr Falana completely missed the point; the view he expressed in that report can hardly be supported by extant law:
(1) Meaning of a Pre-Election matter:
By virtue of section 285(14) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended, any of the following is a Pre-Election Matter: (a) Any suit by an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election; (b) Any suit by an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in an election; and (c) Any suit by a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election”
(2) Other forms of Pre-Election Matters:
Section 31 (4) of the Electoral Act, 2010, as amended, provides that “a person may apply to the Commission for a copy of nomination form, affidavit and any other document submitted by a candidate at an election and the Commission shall, upon payment of a prescribed fee, issue such person with a certified copy of the documents within 14 days.” This means that any document submitted to INEC by any candidate is accessible to any Nigerian (individuals and organizations), upon the latter`s application. By the provisions of section 31 (5) of the same Act, “a person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.”
(3) Time Within which A Pre-election matter Must be Filed In court:
Section 285(9) of the Constitution of the Federal Republic of Nigeria (CFRN), as amended in 2017, 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 the event, decision or action complained of in the suit.” Pursuant to the provisions of section 31(5) of the Electoral Act and section 285(9) of the Constitution, the Governorship candidate of the Peoples` Democratic Party (PDP) in the 16 November 2029 governorship election in Bayelsa State, Senator Douye Diri, and his running mate Senator Lawrence Ewrujakpor, had before the election approached a federal High Court sitting in Abuja, seeking the disqualification of the candidacy of the Deputy Governorship Candidate of the All Progressives Congress (APC), Biobarakuma Degi-Eremienyo. With due respect, Mr Femi Falana got it wrong when he tended to suggest that the Bayelsa matter was not a pre-election matter.
(4) Court that Has Jurisdiction to Hear & Determine Pre-Election Matters:
Generally, all matters arising before the conduct of the general election, such as conduct of party primaries, outcomes of primary elections of political parties, nomination of candidates or their deputies by Political Parties, are Pre-election Matters, and fall outside the jurisdiction of Election Tribunals — Duokpolagha v. George (1992) 4 NMLR (Pt 236) 444. Note however, that, issues of non-qualification could be raised in court before the conduct of the election, but must be raised in the Election Tribunal if raised after the election against a person already declared winner of the election. By virtue of the provisions of section 31(5) of the Electoral Act, it is clear beyond any shade of doubt that it is either a State High Court or the Federal High Court that has jurisdiction to hear and determine Pre-Election Matters. The Election Petition Tribunal does not possess any jurisdiction over such matters. See the case of Amaechi v. INEC (2008) 5 NWLR (Pt 1080) 227 at 296. It must be pointed out that any question as to whether a candidate is qualified to contest a general election is both a ground for a PRE-ELECTION suit (see section 31(5) Electoral Act) and also a ground for an ELECTION PETITION (see section 138(1)(a) of the Electoral Act, 2010). In the case of Wambai v Donatus (2014) 14 NWLR (Pt 1427) 223, Onnoghen, JSC held that “after the conduct of election, if a person wishes to challenge the result of the election on grounds of nomination/pre-election matter, he can legally do so before an election tribunal under section 138(1)(a) of the Electoral Act, 2010 (as amended). He observed further that where the Pre-Election matter is filed in the High Court BEFORE the conduct of the election, the jurisdiction of the High Court over the matter/case continues to be valid even after the election has been conducted. This is based on the doctrine of lis pendens. See also section 137 (1)(j) of the of the CFRN, 1999, as amended, which provides that the qualification of a candidate in an election may be challenged on grounds that the candidate has presented a forged certificate to the Independent National Electoral Commission (INEC).
(5) Differences Between a Pre-Election Matter and a Post-Election Matter:
The difference between the two is with respect to (i) the time of filing the case in court, (ii) the court before which the case may be filed, (iii) the person who has locus standi to file the case, and (iv) the mode of commencement of the action, and (v) the orders that the court may make when the matter is raised. These are now discussed in details as follows:
(i) The Time of filing the case in court — When issues of non-qualification are raised Pre-Election, that is, before the conduct of the election, the complainant must file the case not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit — section 285(9) of the CFRN, 1999, as amended). And the Court before which the case is filed has within a period of 180 days to hear and determine the case — section 285(10), of the CFRN, 1999, as amended). On the other hand, when issues of non-qualification are raised Post-Election (after the election has been conducted), the complainant must file the case not later than 21 days from the date of declaration of the result of the general election. Section 285(5) of the CFRN, 1999, as amended, in 2010 provides that an Election Petition shall be filed within 21 days after the date of the declaration of result of the elections.
(ii) The court before which the case may be filed — When issues of non-qualification are raised Pre-Election, it is either the Federal High Court or a State High Court that has jurisdiction to hear and determine the matter (section 31(5) Electoral Act, cited above). Conversely, when issues of non-qualification of a Governor Elect or Deputy Governor Elect are raised Post-Election, only the Governorship Election Tribunal has the jurisdiction to hear and determine the case. Section 285(2) of the CFRN, 1999, as amended provides that “there shall be established in each State of the Federation an election tribunal to be known as the Governorship Election Tribunal which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of the Governor or Deputy Governor of a State.”
(iii) The person who has locus standi to file the case – A Pre-Election Matter pursuant to section 285(14) CFRN, 1999, as amended, must be commenced by the person named in that section. However, a Pre-Election Matter under section 31(5) Electoral Act, 2010, as amended may be commenced by “any person.” This covers both individuals and organizations, including political parties and their candidates. On the other hand, a Post-Election Matter (known as “Election Petition”) may be commenced only by any one of the following persons, namely – (A) a person who was a candidate in the election –137(1)(a), Electoral Act; (B) a Political Party that sponsored a candidate (section 137(1), Electoral Act, 2010); and (C) a Person who complains that he was Validly Nominated by his political party but is unlawfully excluded by the INEC (section 138 (1)(d) Electoral Act, 2010, as amended). Please note that if the unlawful exclusion was perpetrated against the complainant by his own political party, such is a Pre-election and intra-party Matter and as such the Election Tribunal does not have jurisdiction to hear the case—Odede v. INEC (2008) 17 NWLR (Pt 1117) 554. Only a High Court has jurisdiction in such a case.
(iv) The mode of commencement of the action – A Pre-Election matter is commenced by any of the procedures acceptable to the court, depending on the circumstances. It is usually commenced by Originating Summons, since much of it deals with interpretation of provisions of legal documents and statutes. On the other hand, post-election matters over which the election tribunal has jurisdiction, must be commenced by way of petition – see section 133 of the Electoral Act, 2010, as amended.
(v) The order or orders the court may make when the matter is raised — When issues of non-qualification of a Governorship or Deputy Governorship Candidate are raised in a Pre-Election Matter, it does not and cannot lead to nullification of the entire general election. It is immaterial that the matter remains in Court and is not finally determined until after the conduct of the general elections. A pre-election case on non-qualification of a candidate may only lead to nullification of the CANDIDATURE of the affected person. The Court in a Pre-Election matter does not possess any jurisdiction to nullify the entire election. With particular reference to the Bayelsa case where it was alleged that the Deputy-Governorship Candidate had submitted documents containing “false information” to INEC, section 31(6) of the Electoral Act provides that “if the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.” Note additionally, that by section 31(8), a political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, is guilty of an offence, punishable with a fine. Put differently, when in a Pre-Election matter the court finds that a candidate in a general election or proposed general election is Not Qualified to contest, the court must make an order disqualifying such a candidate and declaring his candidacy ILLEGAL, null and of no effect — section 31(6), Electoral Act, 2010, as amended. Such order does not affect the validity of the general election. Where the Pre-Election Matter which was begun BEFORE the election, is determined AFTER the conduct of the general elections, and the candidate (whose qualification or the validity of whose nomination or candidacy is questioned in the Pre-Election Matter) is found to have already been declared winner of the election, the court before which the Pre-Election Matter is pending, is still obliged to make an order nullifying his candidacy in the election, if the court finds that such a candidate is not qualified or that his/her nomination is illegal – Amaechi v INEC (supra). The mere fact that the election has been conducted does not have any adverse effect on such pending Pre-Election matter; this is the proper interpretation and application of the concept of lis pendens, as explained in Wambai v Donatus (2014) 14 NWLR (Pt 1427) 223, (per Onnoghen, JSC). The effect of such order is that the affected candidate`s participation in the election (already conducted) would become illegal, and void. Consequently, all votes cast for the disqualified candidate during the elections would be regarded as wasted, unlawful and void. This means that all votes cast for him/her would no longer be taken into account in determining the winner of the election; all votes cast for him/her, being unlawful and void, must be deducted from the total valid votes cast in the general elections, after which the court or the electoral umpire (INEC) would now determine the new winner of the election based on the candidate with majority of the new total valid votes cast and satisfied other requirements of the constitution especially with respect to geographical spread. Exactly this is what happened in the Bayelsa case. On the other hand, when in a Post-Election matter (an Election Petition) the Election Tribunal finds that a candidate in a general election or the person who was declared winner of the general election was not qualified to contest the general election, the only order the tribunal can make in the circumstances, is an order nullifying the entire election and ordering a rerun. Section 140 (1) Electoral Act, 2010, as amended provides that “if the [Election] Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.”
(6) Time-Limit for Delivering Judgment in a Pre-Election Suit/Matter:
Section 285(10) of the 1999 Constitution, as amended, provides that “a court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.” On 12 November 2019 (four days before the date set for the Bayelsa Governorship elections), a Federal High Court sitting in Abuja, presided over by Hon Justice Inyang Ekwo, had disqualified the APC deputy governorship candidate (Biobarakuma Degi-Eremienyo) for lying in the affidavit he submitted to INEC. According to the Court, Senator Degi-Eremienyo had given false information in relation to his educational qualifications and later went ahead to depose to an affidavit to correct the discrepancies. Specifically, the court held that “there are discrepancies in the form CF 001, the Deputy Governorship candidate submitted to INEC for clearance in the 2019 Bayelsa State Governorship poll…. the INEC’s Form CF001 is a document validated by oath, and the consequence of lying on oath is grave. Where a candidate is found to have lied on oath, a court must issue an order disqualifying such a candidate from contesting the election”(see https://www.google.com/amp/s/www.channelstv.com/2019/11/12/court-disqualifies-bayelsa-apc-deputy-governorship-candidate/amp/%3ffbclid=IwAR20qyZSXXpKTH4Ex0cvYf_7z_iQTiB1G7o0JjP44L3CDw-y2O97EIU8ck4).
(7) Time of Filing & Hearing of Appeals in a Pre-Election Matter:
Section 285(11), CFRN, 1999, as amended, provides that “an appeal from the decision in a Pre-election Matter shall be filed within 14 days from the date of delivery of the judgment appealed against.” Such an appeal must be heard and determined within 60 days from the date of filing of the appeal — section 285(12) CFRN, 1999, as amended. While the Federal High Court (FHC) judgment was given on 12 November 2019, the APC and its Deputy Governorship candidate for Bayelsa (Senator Biobarakuma Degi-Eremienyo) appealed the next day, on 13 November 2019, and later obtained a Stay of execution of the judgment, pending the hearing and determination of the appeal filed at the Court of Appeal. It was precisely on 14/11/2019 that the Court of Appeal, Abuja granted a stay of execution of the November 12, 2019 judgment of the FHC. Specifically, the Court of Appeal had ordered: (i) That the status quo ante bellum which existed on or before the 19th September, 2019 when the suit was filed be maintained pending the hearing and determination of the Motion on Notice; (ii) An interim order for stay of judgment of the lower court delivered on 12th November, 2019 pending the hearing and determination of the Motion on Notice; and (iii) The Motion on Notice to be heard on 20th November, 2019 and the Respondents to be served with the Motion on Notice and copy of the Court Order. (see https://tvcnews.tv/updated-court-of-appeal-clears-apc-to-participate-in-bayelsa-gov-poll/).
(8) Involvement of the Court of Appeal and the Supreme Court:
It should be recalled that appeals from the Federal High Court go exclusively to the Court of Appeal by virtue of section 240, CFRN, 1999, as amended, while appeals from the Court of Appeal go exclusively to the Supreme Court pursuant to section 233, CFRN, 1999, as amended. Accordingly, on 24 December 2019, a Punch Newspapers report went thus in respect of the appeal earlier lodged at the Court of Appeal by the APC:
“The Court of Appeal, Abuja Division, has affirmed the candidacy of the deputy governor-elect of Bayelsa State (Senator Biobarakuma Degi-Eremieoyo) in the November 16, 2019 governorship election in the state. The Monday’s judgment set aside the November 12, 2019 verdict of Justice Inyang Ekwo of the Federal High Court in Abuja disqualifying Degi-Eremieoyo as the All Progressives Congress’ deputy governorship candidate in the poll…. a three-man panel of the Court of Appeal led by Justice Stephen Adah, on Monday, held that the Federal High Court judge erred in his decision disqualifying the APC’s deputy governorship candidate.
The appeal has merit and it is hereby allowed; the judgment of the lower court delivered on November 12 is hereby set aside. Order is hereby made dismissing the suit of the respondents, Justice Rilwan Abdullahi who read the appellate court’s lead judgment held.” (See https://punchng.com/appeal-court-affirms-candidacy-of-bayelsas-deputy-gov-elect/)
(9) Journey to the Supreme Court:
Dissatisfied with the judgment of the Court of Appeal, PDP and its candidates had appealed to the Supreme Court, which delivered its appellate judgment in the case on 13 February 2020. In its judgment, the Supreme court allowed PDP`s appeal, set aside the judgment of the Court of Appeal and reinstated the 12 November 2019 judgment of the Federal High Court presided over by Hon Justice Inyang Ekwo, disqualifying the Deputy Governorship candidate of the APC in the 16 November 2019 election in Bayelsa State. Newspaper reports on the apex court judgment went thus:
“The Supreme Court on Thursday sacked David Lyon and Sen. Biobarakuma Degi-Eremienyo, as the governor and deputy elect in the Nov. 16, 2019 Bayelsa governorship election. Justice Ejembi Eko, who delivered the lead judgement reinstated the Nov. 12, 2019, Judgment of the Federal High Court in Abuja that disqualified Degi-Eremieoyo from participating in the governorship poll. The court held that the trial court was right in finding the deputy guilty of presenting false information to INEC. The Justice Mary Odili-led panel held that no person shall be qualified to contest election if he presented false information for the purpose of election. The apex court ordered that the certificate of return be withdrawn immediately from the governor and his deputy and be issued to the candidate with the second highest votes in the Nov. 16, 2019 election.” (https://www.von.gov.ng/supreme-court-sacks-bayelsa-govenor-elect-deputy/)
(10) Why did the Supreme Court Sack the Governor-Elect of Bayelsa State (Mr. David Lyon)?
Section 187 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended, makes it mandatory for a Governorship Candidate to have a Deputy Governorship Candidate before his own candidature can be valid. If the candidature of the deputy governorship candidate is for any reason invalid, that of the Governor is adversely affected. Section 187(1) & (2) provides as follows;
“(1) In any election to which the foregoing provisions of this part of this Chapter relate a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.” (2)The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor.”
This is why on the 13 February 2020, in the Bayelsa appeal, the Supreme Court held that “the November 12, 2019 judgment of the Federal High Court in Abuja which had disqualified Degi-Eremienyo in the election for submitting forged certificates to INEC. The court ruled that Mister Degi-Eremienyo’s disqualification had infected the joint ticket with which he and the governorship candidate, Lyon, ran for and won November 16, 2019.”
(11) Why Didn`t the Supreme Court Give Mr. David Lyon a second opportunity to pick another Deputy Governorship Candidate (or Deputy Governor-Elect)?
Some persons have argued that since it was due to no fault of David Lyon that his deputy governorship candidate was disqualified, the Supreme Court should have given the Governor-Elect an opportunity of nominating another deputy to replace the disqualified deputy. Anyway, with due respect to this school of thought, the legal effect of the joint-ticket provision in section 187 of the Constitution is that anything that adversely affects the candidature of either of the Governorship candidate or the Deputy Governorship Candidate, necessarily adversely affect the other. No exception is provided by the constitution/law. Hence the hands of the Supreme Court were tied in the circumstances; the apex court had no other option than to pronounce the law as it is. Besides, there’s a legal deadline for such nomination. The deadline had since passed . The court has no power to extend the statutory deadline which the Electoral Act says cannot be extended. The duty of the Supreme Court is to interpret the law as it is, and not to make or re-make the law. Law-making power belongs to the legislature. Meanwhile, section 31 (1) Electoral Act 2010 provides that “every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.” Section 33 of the Electoral Act, as amended then provides: “a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 32 of this Act, except in the case of death or withdrawal by the candidate.” The effect of the foregoing is that, once a political party has nominated and submitted the name of its candidate, the political party is not permitted under any circumstances (save in the case of death or voluntary withdrawal by the candidate) to change or substitute its candidate for any election. Even in the case of withdrawal, a candidate who wishes to withdraw must deliver his notice of withdrawal to INEC at a date not later than 45 days before the date set for the general election — section 35, Electoral Act). Substitution as a result of death is taken care of by section 36 Electoral Act. Neither withdrawal nor death applies to the Bayelsa scenario. In the Bayelsa case, therefore, one may be right to suggest that the disqualification of APC’s deputy governorship candidate was entirely the fault of the affected deputy governorship candidate, and also of his party which had either fraudulently or negligently submitted his name to the INEC. The disqualification was neither due to withdrawal nor due to death. Hence, there was no legal bases whatsoever for the Supreme Court to have ordered the Governor-Elect to substitute the deputy. The legal principle is”one can’t be allowed to benefit from one’s own default/fraud.” There’s yet another maxim: “one cannot be allowed to use the provisions of the statute as an engine of fraud.” And yet another: “one is wholly responsible for the reasonable consequences of one’s deliberate actions.”
(12) Why Didn`t the Supreme Court Order Fresh Elections in the Bayelsa Case?
I have earlier referred to section 31(6) of the Electoral Act which provides that “if the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.” This means that while presiding over a pre-election matter, bothering on non-qualification of a candidate, the only order the court may make is to either disqualify the affected candidate or refuse to disqualify him/her. The court may then make consequential orders falling within its powers. In the Bayelsa Case, as an example, the Courts (the Federal High Court, the Court of Appeal & the Supreme Court) were presiding over a Pre-election matter challenging the qualification/candidacy of a person to stand for an election. The case before the court was not about the validity or otherwise of the November 16, 2019 governorship election in Bayelsa State. So, none of those three courts, in the Bayelsa Pre-election proceedings, could have nullified the general election held on November 16, 2019 or ordered a rerun. I am therefore surprised that some lawyers have argued that the Supreme Court should have ordered a rerun instead ordering INEC to give the Certificate of Return to the candidate who scored the next highest votes and also met the required constitutional geographical spread. As I have pointed out above, a court of law can only exercise the powers that it has; it could not have given any order it did/does not have powers to give. Any order made outside the court’s statutory or inherent powers is void. Only an Election Tribunal or election appeal tribunal, sitting on the Bayelsa governorship (general) elections could have validly exercised any powers to SET ASIDE a validly conducted general election in Bayelsa State. The Supreme Court was not sitting as an Election Appeal Tribunal when it gave the Bayelsa judgment on 13 February 2020. See section 140 (1) of the Electoral Act as amended (supra). In Amaechi v. INEC (supra) (a Pre-Election matter which went on appeal from the Federal High Court through the Court of Appeal to the Supreme Court), the PDP had prayed the Supreme Court to order fresh elections, in response to which the Court observed that “If this court falls into the trap of ordering a new election, a dangerous precedent would have been created that whenever a candidate is improperly substituted by a Political Party, the court must order a fresh election….”
(13). The ADAMU MUAZU Case versus The Bayesla Case: See Exactly Why The Adamu Muazu Case Is Completely Different from the BAYELSA State CASE ——
1⃣Adamu Muazu’s case under reference was an ELECTION PETITION, a Post-Election matter; so the Tribunal had the jurisdiction under section 140(2) Electoral Act (Supra) to NULLIFY the election and order a rerun.
On the other hand, the BAYELSA State CASE (involving David Lyon’s Deputy) was a PRE-ELECTION case; the court had NO jurisdiction (in a pre-election matter) to nullify the entire election or to order a rerun. Only an ELECTION PETITION TRIBUNAL, properly constituted can nullify a general election or order a rerun in a general election. The regular court HAS NO such power. 2⃣The ADAMU MUAZU case was an INTER-PARTY CASE (matter between two candidates of different political parties, arising from the general election)
The Election Tribunal in an inter-party perition/case has the power to nullify the general election and order a rerun. On the other hand , the Bayelsa case was an INTRA-PARTY case (a matter that relates entirely to the affairs of ONE political party, and not arising from the general elections). The court in an INTRA-PARTY case DOES NOT HAVE any jurisdiction to nullify a general election or order a rerun.
3⃣The ADAMU MUAZU case was a POST-ELECTION matter (a case instituted after the conduct of a general election and relating directly to the GENERAL election) while the Bayelsa case was a PRE-ELECTION matter (a case filed before the conduct of the general elections and not arising from the general elections)
4⃣The question relating to whether a candidate is qualified to contest a general election is both a ground for a PRE-ELECTION suit/case and also a ground for an ELECTION PETITION. When raised in a PRE-ELECTION MATTER, it can NEVER lead to nullification of the entire general election; it can only lead to nullification of the candidacy of the affected person. Exactly this is what happened in the Bayelsa case. On the other hand, when raised in an ELECTION PETITION, it can lead to NULLIFICATION of the entire general election; when in an ELECTION PETITION an election tribunal finds that a candidate in a general election or the person who was declared winner of the general election was NOT QUALIFIED to contest the general election, the only order the tribunal can make is to NULLIFY the election and order a rerun —- section 140(2) of the Electoral Act. Exactly this is what had happened in the ADAMU MUAZU case. 5⃣It is because the Election Petition Tribunal in the ADAMU MUAZU case had NULLIFIED the General election and ordered a rerun, that was why Mr. ADAMU MUAZU even had the opportunity and LOCUS to approach the Supreme Court before date of the rerun, to BEG the Supreme Court to permit him to nominate another Deputy and still be able to participate as a candidate in the proposed rerun election. On the other hand, in the Bayelsa case, the Supreme Court DID NOT nullify the Bayelsa governorship election and did not order a rerun. So, there is no way David Lyon can have the LOCUS standi to take an application before the Supreme Court asking to be allowed an opportunity to nominate another deputy. The order of the Supreme Court in the bayelsa case leaves no one in doubt: INEC should go and give Certificate of Return as Governor of Bayelsa State, to the next candidate that has the majority of LAWFUL votes and meets the constitutional requirements.” Note that lawful votes must exclude wasted votes. Wasted votes are votes cast for a nonexistent candidate or for an illegal candidate or for a political party that has no candidate or whose candidate is not qualified.
6⃣In the ADAMU MUAZU case, the Tribunal (a) disqualified the deputy governor-elect or deputy governor, (b) rightfully nullified the general elections and (c) ordered a rerun. On the other hand, in the Bayesla case, the court, not a tribunal disqualified the deputy governor-elect, but DID NOT (because it could not) nullify the general elections and it DID not order a rerun. In conclusion, on this this point, those who hold the view that the ADAMU MUAZU scenario is SIMILAR or the same as the Bayesla scenario are merely expressing their ignorance of the law. The fact that one is a Post-Election Matter while the other is a Pre-Election Matter leaves a a fundamental distinction between the two.
(14) The Federal Republic of Nigeria Operates, Not Just a Democracy, But a “Constitutional Democracy:”
Nigeria does not operate a democracy in vacuo; Nigeria operates a Constitutional Democracy, the true meaning of which is that, in order to be truly democratic, everything must be done in line with the Constitution and Rule of Law. Put differently, all actions, steps and decisions of all public or private persons, political parties and other organizations and authorities must at all times comply with the core requirements of Rule of Law as represented in the Constitution and the laws that the Constitution enables. Any action, step or decision that falls short of standards and conditions set by Rule of Law and or by the Constitution, must be struck down as being undemocratic and therefore void and of no effect. In Nigeria, democracy has two necessary component partners, namely: (1) Observance of the Rule of Law and (2) Respect for the Will of the Majority of the People. Please note that the former (Rule of Law) takes precedence over the latter in cases of conflict between the two. Hence any supposed expression of the will of the people, if not backed up by law, is ab initio void and of no effect. This is what happened in Rivers, in 2007 (when Amaechi had to replace Omehia: see Amaechi v INEC (supra)), and in Zamfara in 2019 (see https://www.thenigerianvoice.com/news/278703/prof-itse-sagays-comments-on-supreme-courts-verdict-on-zam.html), and now in Bayelsa State (see https://www.premiumtimesng.com/news/headlines/377269-why-supreme-court-sacked-bayelsa-apc-governor-elect-david-lyon.html). The Supreme court of Nigeria explained this point when it said (per Obaseki, JSC) in the Military Governor of Lagos State vs. Odumegwu-Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E): “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.” Also, in Whyte v. Kwande (APPEAL NO.CA/PH/161/99), in a judgment delivered on January 4, 2007, the Court of Appeal, Port-Harcourt division, (per His Lordship, Ibrahim Mohammed Musa Saulawa, JCA) was of the opinion that “respect for Rule of Law must be the major guiding motto and characteristic of the behaviour and standards of such men who found themselves in public offices. Thus, any deviation from rule of law is punished by the courts of law however compliant such deviation is with the Will of the people.” As Oliver Wendell Holmes, an American jurist, once put it (see The Path of the Law by Oliver Wendell Holmes, Jr., 10 Harvard Law Review 457 (1897), “the prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” May I respectfully submit that any expression of the so-called will of the people that fails to accord with the dictates of the Rule of Law must be struck down by the courts for being undemocratic and null. In other words, in my view, the Will of the People MINUS Rule of Law IS EQUAL TO Lack of Democracy, because it is not, and it cannot be said to be, the will of the people that the rule of law be subverted in favour of the wishes of the majority, Rule of Law being the greatest safeguard of the will of the people. Hence the decisions in Zamfara (2019), Rivers (2007) and Bayelsa (2020) are true, rightful and lawful expressions of the true will of the people as envisaged, not by the type of democracy that operates in vacuo, but by CONSTITUTIONAL DEMOCRACY which itself is founded on Rule of Law and as such is meaningless and nonexistent in the absence of respect for the Rule of Law. Like God in Heaven towards men on earth, the law (through the courts) does for the people that which is good for the people, and not necessarily what the people themselves want. That is the true meaning of Constitutional Democracy founded on Rule of Law, and that is what is practised in Nigeria” I have seen some people talk about democracy as the government of the Majority, without taking a minute out to consider the meaning of the majority envisaged by democracy. In my opinion, the “majority” envisaged by democracy is the majority of those who lawfully participate – that is, majority of the people/electorate who actually go out to validly cast their votes for lawful candidates in the elections! In other words, democracy represents governance by the party who wins/secures, not merely the majority of all votes cast, but indeed the majority of the valid, lawful votes cast in an election. No government in the history of Nigeria has ever been elected by the majority of Nigerians. Let us now do a bit of some illustration here, to prove this point: President Buhari who was declared winner in the 2019 elections in Nigeria, was said to have been voted in by about 15 million Nigerian voters. Now, I ask us, what’s the population of Nigeria? Some say 200 million. But many agree it’s over 180 million. What percentage of 180 million is 15 million? It has been reported that only about 85 million to 90 million Nigerians had registered to vote in the 2019 elections, then I ask this, are these 15 million voters in the majority when you put that number against the about 90 million registered voters? Again, I ask us, how many of the about 90 million registered voters actually “voted” in the 2019 presidential election? I answer: just a little above 27 million, as reported by INEC. This means that only about 27 million (about 29 percent) out of the about 90 million registered voters (and about 15% of the about 200 million Nigerian population) actually came out to vote in 2019! The questions may then be posed: (1) Did majority of the 90 million registered voters vote in the 2019 elections? (2) Did majority of the 200 million Nigerians vote in the 2019 elections? Answer to both is No, as illustrated above. Accordingly, can anyone validly say we have a government supported by the majority of Nigerians (or majority of Nigeria’s registered voters) at the federal level or in any state in Nigeria? The truth is there is NO majority-supported power-political Government or governance anywhere in Nigeria. This is supported by the famed declaration by Thomas Jefferson that “we in America do not have government by the majority. We have government by the majority who participate.” Is the Jeffersonian theory not truer of Nigeria`s type of democracy? Does this not support my postulations above?
(15) Conclusion & A Word of Advice to Nigerian Politicians:
I draw my conclusion from two major pronouncements of the Supreme Court of Nigeria. In Amaechi V. INEC & 2 ors (2008) 1 SCNJ 1; (2008) 5 NWLR (Pt. 1080) 227), His Lordship, Pius Olayiwola Aderemi, JSC, had this to say, towards this end: “in all countries of the world which subscribe to and operate under the rule of law, all actions of both private and public persons are always adapted to the laws of the land. We ought to allow this time-honoured principle to sink well into our heads and hearts.” Second, in PALI v. ABDU (2019) 5 NWLR( PT.1665)320 @ 326 ratio 8, Hon Justice Ejembi Eko, JSC, declared thus: “the suit, culminating in this appeal is one of the ploys politicians use, clearly an abuse of court’s process, to hoodwink the courts to endorse the illegalities they perfect in the field. But it should be drummed into every ear that the court as the last hope of the common man, should not be conversely turned to be the last hope of the corrupt and desperate politicians seeking to wield power by all means”
A major duty legal researchers and rule of law campaigners owe society in the practice of constitutional democracy for promotion and sustenance of responsible and responsive governance is to constantly offer legal opinions on issues of law to guide our leaders and institutions in the discharge of leadership responsibilities. I have done my humble bit. He or those who have ears, let him or they hear.
Sylvester Udemezue (udems)