By Sylvester Udemezue
A news report of March 05, 2020 under the headline, “Showdown In Bayelsa As ANDP Drags INEC To Court Over Exclusion” had it that:
“It seems the last has not yet been heard in the Bayelsa State governorship election tussle as the Advanced Nigeria Democratic Party [ANDP] has dragged the Independent National Electoral Commission [INEC] to court for excluding it from the election held on November 12 last year. This was disclosed in a document showing that ANDP asked the court to put an end to nascent term of the Senator Douye Diri and order a fresh election in Bayelsa.The case has its Petitioners as Advanced Nigeria Democratic Party [ANDP], Hon. Lucky King-George, Mr. Daid Peter Esinkuma and Miss Inowei Janet. The Respondents in the case, on the other hand, are the Independent National Electoral Commission [INEC], People`s Democratic Party [PDP] and Douye Diri who was just sworn in less than two weeks ago.”).
Duly stamped court documents accompanying the news report show that the said petition was filed on 26 February 2020 at the Bayelsa State Governorship Election Tribunal. (see https://rediceblogspot.wordpress.com/2020/03/05/showdown-in-bayelsa-as-andp-drags-inec-to-court-over-exclusion/). The Independent National Election Commission (INEC) had on 14 February 2020 declared Senator Duoye Diri of the People`s Democratic Party (PDP) winner of the November 16, 2019 Bayelsa State Governorship election, following the Supreme Court judgment of 13 February 2020, which had nullified INEC`s earlier declaration of APC`s David Lyon as winner and ordered INEC to make a fresh declaration based on the next party with the majority votes and requisite constitutional geographical spread. (see (https://punchng.com/breaking-inec-declares-pdps-diri-as-winner-of-bayelsa-election/).
However, the entire Nigerian legal community was thrown into palpable tension when the Bayelsa State Governorship Election Tribunal on 17 August 2020, nullified the election of Governor Douye Diri, and ordered the INEC to conduct a fresh election within 90 days. The Supreme Court verdict had followed the petition filed by ANDP, which, as pointed out above, had claimed that the party`s candidate was unlawfully excluded from the November 16, 2019 governorship elections in Bayelsa State. In a split judgement of two-to-one, the Tribunal held that that INEC “does not have the power to disqualify any candidate for an election.”
While Governor Douye Diri has indicated his plans to appeal the tribunal`s judgment, the present commentator has chosen to take a look at some of the many issues thrown up by this particular case in relation to election petition generally and on issues pertaining to nullification of elections. So many questions arise, including those relating to whether or not ANDP`s petition was not filed out of time, whether allegations bothering on wrongful exclusion by the INEC are pre-election or post-election questions or both; locus standi in such pre-election or post-election matters; courts with jurisdiction; proper orders to make; time for commencement of such actions; controversy surrounding questions as to which date is legally cognizable as the date of declaration of the results of the 2019 Bayelsa gubernatorial elections, the fate of a governor whose election is so nullified, pending appeal; chances of success on appeal in view of the constitutional questions thrown up and the split-nature of the Tribunal`s verdict; the fate or place of Mr. David Lyon, nullified candidate of the All Progressives Congress (APC) especially in the event of a re-run election becoming inevitable; powers of the INEC, acting without a court order, to disqualify, exclude or to reject (on grounds of non-qualification) candidates of any political party whose names were submitted before the deadline for submission of names; among many other issues.
Before we proceed, since the bone of contention in the ANDP petition is the alleged “unlawful rejection/exclusion/disqualification by INEC” of the party`s candidate, this commentator would like to proceed on his belief (and he so respectfully submit) that allegations bothering on “unlawful rejection/exclusion/disqualification of a party’s candidate by INEC” are both a pre-election matter and a post-election matter, and thus could be litigated before or after the affected election. See P.D.P. V Daniel Sarror & ors Suit No SC/381 and SC/383/2011 (per Dahuru Musdapher CJN); Dangana V. Usman (2013) 6 NWLR Pt 1349 page 50 at 89-90 (SC); and PDP V INEC (2014) LPELR-22892(CA)
(1) WRONGFUL EXCLUSION OF A POLITICAL PARTY`S CANDIDATE BY INEC AS A PRE-ELECTION MATTER: Wrongful exclusion of a political party`s candidate is a pre-election matter by virtue of section 285 (14) (b) & (c) of the Constitution of the Federal Republic of Nigeria (CRFN), 1999, as amended, which provides as follows:
“For the purpose of this section, ‘pre-election matter’ means any suit by – (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) COURT WITH JURISDICTION IN A PRE-ELECTION MATTER BOTHERING ON ALLEGED UNLAWFUL EXCLUSION BY INEC: Generally, Pre-election Matters fall outside the jurisdiction of Election Tribunals. See Duokpolagha v. George (1992) 4 NMLR (Pt 236) 444. By virtue of the provisions of section 31(5) of the Electoral Act, it is either a State High Court or the Federal High Court that has jurisdiction. See the case of Amaechi v. INEC (2008) 5 NWLR (Pt 1080) 227 at 296; and Wambai v Donatus (2014) 14 NWLR (Pt 1427) 223. 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.”
(3) LOCUS STANDI IN A IN A PRE-ELECTION MATTER BOTHERING ON ALLEGED UNLAWFUL EXCLUSION BY INEC: In cases of wrongful exclusion by INEC as a pre-election matter, it is either the candidate allegedly excluded/disqualified by INEC or his/her political party that has the locus standi to file the suit. See section 285(14)(b) and (c) CFRN, 1999 (supra)
(4) TIME WITHIN WHICH TO FILE A PRE-ELECTION MATTER BOTHERING ON ALLEGED UNLAWFUL EXCLUSION BY INEC: A pre-election suit/case in a High Court challenging alleged wrongful exclusion by INEC, must be filed 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) CFRN, 1999, as amended, 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.” The date of such occurrence could be the date the INEC wrote the political party notifying it of INEC`s rejection, exclusion or disqualification of the political party`s candidate or the date INEC published a notice excluding the candidate from the list of qualified candidates for the election.
(5) WRONGFUL EXCLUSION OF A POLITICAL PARTY`S CANDIDATE BY INEC AS A POST-ELECTION MATTER — As a post-election matter, such rejection/disqualification/exclusion by INEC is covered by section 138(1)(d) of the Electoral Act, 2010 which provides that “an election may be questioned on any of the following grounds, that is to say — that the petitioner or its candidate was validly nominated but was unlawfully excluded from the Election” by INEC.
(6) LOCUS STANDI IN A POST-ELECTION MATTER BOTHERING ON ALLEGED UNLAWFUL EXCLUSION BY INEC: 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); or
(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).
(7) PROPER ORDER TO MAKE IN A POST-ELECTION MATTER BOTHERING ON ALLEGED UNLAWFUL EXCLUSION BY INEC: 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.”
(8) COURT WITH JURISDICTION, MODE OF COMMENCEMENT & TIME WITHIN WHICH TO COMMENCE, A POST-ELECTION MATTER BOTHERING ON ALLEGED UNLAWFUL EXCLUSION BY INEC: The right of the allegedly excluded candidate (or of his political party) to challenge this action of the INEC as a post-election matter does not arise EXCEPT as provided under section 133(1) and section 134(1) of the Electoral Act, 2010, and under section 285 (2) & (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Section 133(1) of the Electoral Act, 2010 provides that “no election or rerun election under this Act shall be questioned in any manner other than by a petition … (in this Act referred to as ‘election petition) presented to the competent tribunal or court in accordance with provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.” Section 133(2)(b) of the Electoral Act, 2010 provides that “in this part, “tribunal or court” means … the election tribunal established under the Constitution or by this Act.” Section 134(1) of the Electoral Act, 2010 provides that “an election petition shall be filed within 21 days after the date of declaration of results of the elections.” Section 285 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides that “”an election petition shall be filed within 21 days after the date of declaration of results of the elections.” Note that there is no room for any extension of the time limited for filing an election petition. Further, 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.”
(9) WHICH IS THE LEGALLY COGNIZABLE DATE OF DECLARATION OF THE RESULTS OF THE 2019 BAYELSA STATE GOVERNORSHIP ELECTION? – Major news report on 13 February 2020 had it that “The Supreme Court on Thursday sacked David Lyon of the All Progressive Congress (APC) as governor-elect of Bayelsa State, barely 24 hours to his inauguration. A five-member panel of the apex court led by Justice Mary Odili nullified the election of Mr Lyon on the grounds that his deputy, Biobarakuma Degi-Eremienyo, presented false information to the Independent National Electoral Commission (INEC) in aid of his qualification for the November 16 governorship election in State. The Supreme Court agreed with an earlier ruling of the high court on the matter. The apex court in the judgment delivered by Justice Ejembi Eko consequently ordered INEC to withdraw the certificate of return issued to Messrs Lyon and Degi-Eremienyo. The judge also ordered that INEC should immediately declare the party with the highest number of lawful votes and geographical spread” (see https://www.premiumtimesng.com/news/headlines/377254-supreme-court-sacks-bayelsa-apc-governor-elect-lyon.html). It was his Lordship, Ejembi Eko, JSC, who read the lead judgment, and he had specifically ordered INEC to declare as winner and issue the certificate of return to the candidate of the party with the next highest number of lawful votes and with the required constitutional geographical spread in the election. As pointed out above, following the directive of the Supreme Court, INEC had on 14 February 2020, declared Duoye Diri of the People`s Democratic Part (PDP) winner of the election and had issued the certificate of return to him. Another media report on 14 February 2020 under the headline, “INEC declares PDP’s Diri as winner of Bayelsa election,” had had informed as follows:
“The Independent National Electoral Commission, on Friday, declared the candidate of the People`s Democratic Party, Douye Diri, as the winner of the November 16 governorship election held in Bayelsa State. The chairman of INEC, Prof. Mahmood Yakubu, said the commission would give him the Certificate of Return in compliance with the order of the Supreme Court, which sacked David Lyon 24 hours to his inauguration. INEC has subsequently presented his Certificate of Return to him.” (https://punchng.com/breaking-inec-declares-pdps-diri-as-winner-of-bayelsa-election/)
From the aforesaid, it appears obvious that the relevant and valid date of declaration of the results of the 2019 governorship elections in Bayelsa State is 14 February 2020 when INEC declared PDP`s Douye Diri the Governor-elect as well as issued him the Certicate of Return. On 13 February 2020, the Supreme Court had nullified the 18 November 2019 declaration of results (declaration of David Lyon as winner) and ordered INEC to make a fresh declaration of results/winner excluding APC whose candidate was nullified for being not qualified. On 14 February, INEC made a fresh result declaration, declaring Duoye Diri winner of the November 16, 2019 Election and issuing him the certificate of return. In the case of Ladoja v INEC (2007) LPELR-1738(SC), the Supreme Court said that: “when an act is declared null and void, the position is settled that from the angle of the law, the act never took place. It is completely wiped off and considered as extinct and deemed never to have existed.” 14 February 2020 is the lawful and relevant date of declaration of results of the 2019 Bayelsa Governorship Elections.
(10) WAS ANDP`S PETITION FILED WITHIN TIME? The court papers sited by the present commentator show that the petition was filed on 26 February 2020, just 12 days after the date INEC declared Senator Duoye Diri the duly elected Governor of Bayelsa State. (see https://rediceblogspot.wordpress.com/2020/03/05/showdown-in-bayelsa-as-andp-drags-inec-to-court-over-exclusion/).
(11) COULD ANDP HAVE FILED THE PETITION BEFORE THE LEGALLY COGNIZABLE DATE OF DECLARATION OF RESULT OF THE EOLECTION? – Since there was an earlier date of declaration of results (David Lyon of the APC had previously been declared winner on November 18, 2019), the ANDP could have filed the petition within 21 days from the 18 November 2019 date. (see https://www.youtube.com/watch?v=Ub9mYkaewOM&app=desktop). But even if the party or its candidate had filed a petition based on the earlier date of declaration of results (18 November 2019), they must, upon the happening of the events of 14 February 2020, withdraw the petition, and, in line with section 285 (5) of the Constitution of the Federal Republic of Nigeria, file a new petition within 21 days after 14 February 2020, since the earlier result declaration date (18 November 2019) had been set aside and therefore become void, and non-existent. As Hon Justice Nikki Tobi of blessed memory once said, you can’t put something on nothing and expect it to stand; it would not stand.” See also Macfoy v UAC (1962) AC 158. Further, Section 285 (5) of the Constitution requires that an “election petition” must be filed within 21 days after the date of declaration of result of the election complained of, and not before then. Besides, section 133(1) of the Electoral Act, 2010 provides that “no election or rerun election under this Act shall be questioned in any manner other than by a petition … (in this Act referred to as ‘election petition) presented to the competent tribunal or court in accordance with provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.” Since Senator Douye Diri was/is the duly elected Governor of Bayelsa State, pursuant to the result declaration date of 14 February 2020, any election petition challenging his election, in order to be valid, must join him as a Respondent, he being a necessary respondent to the petition. And if he was a necessary respondent, how could anyone expect the ANDP or its candidate to have filed the petition before the 14 February 2020 which was the date Senator Duoye Diri was declared winner of the election? Lex non cogit ad impossibilia is a fundamental fundamental principle of statutory interpretation (meaning “the law does not command the doing of what’s impossible”). See the case of Lasun v. Awoyemi (2009) 16 NWLR (pt. 1168) 548.
(12) THE FATE OF GOVERNOR DOUYE DIRI, PENDING FINAL CONCLUSION OF THE LEGAL BATTLE OVER THE ELECTION: By virtue of section 143(1) Electoral Act, 2010, as amended, “if the election tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, then if Notice of Appeal against that decision is given within 21 days from the date of the decision, the candidate returned shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the determination of the appeal.” See also section 143 (2) Electoral Act. There is a right of further appeal to the Supreme Court, which is the final court of appeal in governorship election petition. Furthermore, an appeal from the decision of an Election Tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal. See section 285 (7) CFRN, 1999, as amended.
(13) WHAT IF GOVERNOR DIRI LOSES AT THE SUPREME COURT? – If the Supreme Courts reverses the decision of the Election Tribunal, it means Senator Duoye Diri remains in office as the Governor of Bayelsa State, until the expiration of a period of four years from 14 February 2020. See section 180(2)(a), CRFN, 1999. Governor Duoye says he is confident; may God and the law help him out and answer his prayers. Amen. However, if the Governor loses up to the Supreme Court, the next step would be for Governor Duoye Diri to vacate office for the Hon. Speaker of the Bayelsa State House of Assembly who shall hold the office as the Acting Governor while the INEC must conduct a fresh election within 90 days from the date of the Supreme Court verdict. If Governor Duoye Diri still wins the rerun election, his new tenure shall take effect from the date of his fresh swearing in (see section 180(2)(a), CRFN, 1999), provided that the period he had previously spent in office before his election was nullified, would be taken into account in calculating his new four-year tenure. Consequently, if he wins the re-run and gets sworn in afresh, he shall spend a fresh period of four years less the period he had previously spent in office before the nullification of his earlier election. Section 180 (2A) of the CFRN, 1999, as amended provides that “in the determination of the four year term, where a rerun election has taken place and the person earlier sworn in wins the rerun election, the time spent in office before the date of the election was annulled shall be taken into account.”
(14) CHIEF DAVID LYON`S PLACE IN A POSSIBLE RE-RERUN ELECTION – If a rerun governorship election becomes inevitable for Bayelsa State, the position of extant law is that Chief David Lyon, the erstwhile candidate of the APC, having been disqualified alongside his deputy (and barred from participation in the 2019 governorship election of Bayelsa State; indeed, Chief David Lyon’s candidacy/participation in the 16 November 2019 Governorship election was quashed), by virtue of the Supreme Court verdict of 13 February, 2020, he is not entitled to participate in any rerun election in relation to the same 2019 election. Only candidates and political parties who were qualified and entitled to participate in the November 16, 2019 Governorship election in Bayelsa State, would be legally permitted to participate in any such rerun elections. And since the candidacy of the APC candidate (David Lyon) was nullified by the apex Court, and unfortunately for his party (APC), the time for submission of names of candidates having elapsed in respect of that election, the APC is not entitled to field any candidate in any rerun arising from the 2019 governorship elections in Bayelsa.
(15) WHAT IS MY HUMBLE OPINION ON LIMITS OF INEC`S POWERS TO REJECT, DISQUALIFY, OR EXCLUDE A CANDIDATE`S NAME WITHOUT A COURT ORDER. Coming shortly. Watch out in Part Two thereof. Lol!
(17 August 2020)