Since section 285 (6) and (7) of the Constitution provides that a court in a pre-election matter shall deliver its judgment within 180 days and an appeal arising therefrom shall be determined within 60 days from the date of filing the appeal, it is submitted that any of the parties involved in the Bayelsa State pre-election case could have filed an application for interlocutory injunction restraining INEC from conducting the governorship election in the state pending the determination of the pending appeal in the matter.
More so, that the Court of Appeal had granted a stay of the execution of the order of the Federal High Court which had disqualified the APC governorship and deputy governorship candidates pending the determination of the appeal. I am of the strong view that the application to postpone the election would have been granted in view of the position of the Supreme Court in the case of Obi v INEC (2007) 45 WRN 1.
But once an election has been conducted and concluded, the results cannot be challenged in a trial court or appellate court via a pre-election matter. At that stage the challenge of the election could only be questioned at an election petition tribunal.
The appellate courts, no doubt, are empowered to exercise jurisdiction in respect of appeals arising from the decisions of the election petition tribunals. Hence, section 133 of the Electoral Act provides that “No election or return under this Act shall be questioned or in any manner other than by election petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of the Act and in which the person elected or returned is joined as a party.”
Indeed, the jurisdiction of any court to hear a pre-election matter has been completely ousted by section 285 (2) of the Constitution which provides that the governorship election petition tribunal shall, “to the exclusion of any court or tribunal have jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor of a State.” Therefore, the election petition tribunal is the only judicial organ that has the competence to annul an election based on disqualification of an elected governor or deputy Governor. If the election petition tribunal annuls an election on grounds of disqualification it shall order a fresh election so that the electorate can elect another candidate of their choice.
In Bayo v. Njiddah (2004) 8 NWLR (PT 876) 544 at 636-637 it was held by Ogbuagu JCA (as he was then) that: “Having nullified the election, it is now settled that where the winner is disqualified because of the failure to fulfill any of the statutory requirements, including the Constitution as in the instant case leading to three(3) appeals, the candidate who scored the next in majority votes cannot be declared as the winner. See UNCP & 2 Ors. v. DPN & Ors. (1998) 8 NWLR (PT 560) 90 at 95 CA.
“Secondly, although where a disqualified person is elected (not as in the instant case,) the votes cast for him, are thrown away, and his opponent, is deemed to be elected, but this can only be so, if the facts giving rise to the disqualification, were so notorious as not to require proof and such facts were within the knowledge of the electorate.
“In other words, where the disqualification is not notorious and depends on either legal argument or complicated facts, votes given for a candidate (even thought he might be unseated by reason of his disqualification), would not be thrown away, so as to give the seat to the candidate with the next highest number of votes. But instead there must be a fresh election.
“Put in another way, for the votes given for a candidate to be thrown away, the voters must before voting, either have had or be deemed to have had notice of the fact creating the candidate’s disqualification. See the case of Re: Bristol South East Parliamentary Election (1961) 3 All E.R 354 at 379 DC (1964) 2 Q.B. 257.”
In the same vein, in Mele v Mohammed (1999) 3 NWLR (Pt 595) 425 it was held that “where a person is disqualified after being elected naturally the votes cast for him at the election would not count for any purpose whatsoever. However, the other candidate who opposed him at the election cannot be declared automatically without more and this is notwithstanding that he secured the next highest number of votes. He is required to further show that the electors were aware of the factors that gave rise to the disqualification.”
From the foregoing, it is indubitably clear that the decision of the Supreme Court, in respect of the Bayelsa State governorship election was anchored on the assumption that a pre-election could be heard and determined after the conclusion of an election.
Although I fully agree with those who have argued that the Supreme Court is determined to halt the impunity of god fathers who impose candidates on political parties, the rights of voters which might have accrued ought to be considered.
In other words, in sanctioning political parties that breach the provisions of the Electoral Act or the Constitution the verdict of the courts must not be substituted for the franchise of the electorate.
Power of the Supreme Court to review its judgment
It is trite law that the Supreme Court has inherent powers to set aside its own judgment obtained on fraud or if it was reached per incuriam. In Johnson v Lawanson (1971) 7 NSCC 82 the Court overruled itself. In the leading judgment of the Court, Coker J.S.C. said, “When the court is faced with the alternative of perpetuating what it is satisfied is an erroneous decision, which was reached per incuriam and will, if followed, inflict hardship and injustice upon the generations in the future or of causing temporary disturbances of rights acquired under such a decision, I do not think we shall hesitate to declare the law as we find it.”
However, it is pertinent to point out that the case of Johnson v Lawanson (supra) and similar cases are inapplicable where the jurisdiction of the Supreme Court is ousted by any statute of limitation. Therefore, it is legally impossible for the Court to review its judgment in the Bayelsa State governorship pre-election case after the expiration of the 60 days prescribed by section 285 (7) of the Constitution as amended. Politicians who are planning to file all manners of applications for the review of the previous judgments of the apex court are advised to pay attention to the case of Prof Ugba v Suswam (2014) 14 NWLR (Pt 1427) 264.
In declining to review its previous judgment in that case, the Court held that its jurisdiction had been ousted by section 285 of the Constitution. According to Mary Peter-Odili JSC: “For emphasis, when the Constitution by the provisions of Section 285(6) and (7) imposed on this court and parties, the period within which whatever needs be done must be done and not outside that time frame, there is helplessness in those ouster clauses and nothing can be done about it.
“The implication is that the matter has died and is buried and attempting to go round that constitutional mortal blow is an act of desperation, which only lead to embarking on an academic journey best left for the Ivory tower of knowledge which our Universities are intended for and the court is not the right forum.”
Conclusion
A leading member of the ruling All Progressives Congress and the Minister of State in the Labour Ministry, Mr Festus Keyamo, has rightly said that the ruling party has itself to blame for its electoral misfortune in Bayelsa State. More importantly, the APC deserves condemnation for its opportunism, which has frustrated genuine electoral reforms. It is common knowledge that one of the principal recommendations of the Uwais Electoral Reform Panel is that all pre-election cases and election petitions be concluded before the inauguration of winners of elections.
Before 2015, the APC was in the forefront of the campaign for the implementation of such electoral reforms. But upon assumption of power, the party has frustrated all efforts to reform the electoral process. By manipulating enormous powers of the state to win dubious elections the APC has continued to behave like the Peoples Democratic Party, which once believed that it would rule the country for 60 years.
Credit: Femi Falana
If you missed part 1 of this essay, read it here: Why Pre-Election Cases Must Be Decided Before Polls (1), By Femi Falana