Bayelsa: Who is Afraid of the Supreme Court?


Anayo Okolie, who was in Yenagoa recently, writes on the Bayelsa State governorship election dispute, which is pending at the Supreme Court

If there is any single institution on which the minds of the people of Bayelsa State are currently concentrated, it is the Supreme Court of Nigeria. The highest court in the land will in November hear and deliver the final judgement on the disputed Bayelsa State governorship election. At present, the raging political battle between the incumbent governor, Henry Seriake Dickson of the Peoples Democratic Party, and his challenger and former governor of the state, Timipre Sylva of the All Progressives Congress, has crossed two lower courts – the Bayelsa State Governorship Election Petition Tribunal and the Court of Appeal. Both courts ruled in favour of Dickson.

In his petition at the tribunal, Sylva and his party, APC, challenged the declaration of Dickson and his party, PDP, as winner of the governorship election held in Bayelsa State on December 5 and 6, 2015 and January 9, 2016.
Sylva’s case is: that Dickson was not duly elected by majority of lawful votes cast at the election; that Dickson’s election is invalid by reason of non-compliance with the Electoral Act 2010 (as amended); and that Dickson’s election is invalid by reason of corrupt practices.

A major area of contention in the case is Southern Ijaw Local Government Area where elections were rescheduled to take place on December 6, 2015. As it happened, the elections held and results were announced at the unit and ward levels and collation was being undertaken at the local government when the exercise was cancelled by the Resident Electoral Commissioner on December 7, 2015.

The petitioner contends that the REC lacked the powers to annul an election that has already been concluded. Sylva, therefore, wants the results of December 6, 2015 from Southern Ijaw added to those of December 5, 2015 from other parts of the state, and declared winner of the election. He submits that when that is done, the supplementary election of January 9, 2016 in Southern Ijaw would become unnecessary. Accordingly, the supplementary election of January 9, 2016 would have been limited to selected units in Brass, Ekeremor, Nembe, Ogbia, Sagbama and Yenagoa local government areas.
In the alternative, Sylva wants a fresh governorship election in the state.

But in a unanimous judgement, a three-man panel led by Justice Kazeem Alogba dismissed the case for lacking in merit. The five-man panel of the appellate court, headed by Justice Jimi Bada, also dismissed the appeal for lacking in merit, as it resolved all the five issues raised in the appeal by Sylva and APC in favour of Dickson and PDP. The court held that Sylva and his party failed to prove and sustain the allegations of corruption, non-compliance, gross violation of the Electoral Act and other malpractices in the conduct of the election.

The court rejected the argument of counsel to the appellants, Sebastine Hon (SAN), that section 26 (1) of the Electoral Act, 2010 was breached by INEC when it cancelled the December 6, 2015 polls in Southern Ijaw. Sylva had argued that the Bayelsa State REC lacked the powers under the operations of section 26 (1) of the Electoral Act to unilaterally cancel the polls.

But the Court of Appeal held that there was no cancellation of election as argued by the appellants but a postponement of election.
Bada, who delivered the lead judgement, held, “From the evidence of the petitioners’ witnesses, there was no election known to law in Southern Ijaw local government and the decision to hold future election can only mean a postponement and not a cancellation.

“Section 26 (1) of the Electoral Act 2010 will not accommodate a situation where there was no result returned to INEC and that collation of results did not take place.
“The results sheets tendered by the appellants were duplicate copies of forms EC8 which were not certified by INEC but a Magistrate Court. They were not demonstrated and tested in court by witnesses but were dumped on the court.

“Where a party seeks declaratory reliefs the burden is on him to strengthen his case and not rely on the weakness of the defence as declaratory reliefs are not granted on the platter of gold.

“From the foregoing, the foundation upon which the appellants ‎rested their case is eroded by the contradictory evidence of their witnesses. It is my view that the tribunal cannot pick and choose from the contradictory evidence of the witnesses since the court has no mechanical tools to repair any evidence.”
The court held that the evidence of some of the appellants’ witnesses contradicted the position of the appellants that election took place on December 6, 2015 in Southern Ijaw Local Government Area.

But a resolute Sylva, who felt there was miscarriage of justice both at the state election tribunal and the Court of Appeal, has approached the apex court to overturn the earlier pronouncements and verdicts of the lower courts. Armed with an avalanche of legal authorities and case laws in his arsenal to support his mission, Sylva through his legal team anchored by a constitutional lawyer and author, Sabastine Hon (SAN), raised 27 solid grounds of appeal in urging the Supreme Court to remove Dickson from office, on the grounds that the election that brought him to office was illegal.
In his appeal papers, Sylva also wants the Supreme Court to set aside the judgement of the Abuja Division of the Court of Appeal, which dismissed his appeal seeking to overturn the decision of the state election tribunal.

Sylva and his party contend that elections had taken place in Southern Ijaw before the REC cancelled them on the grounds of alleged but unproven irregularities. They accuse the Court of Appeal justices of standing the law on its head by relying on hearsay to arrive at the conclusion that election did not take place in Southern Ijaw.
The appellants further tell the apex court that the justices of the Court of Appeal shut their eyes to documentary evidence they tendered, showing that elections actually took place in the area in question, and that INEC went beyond its powers when it decided to cancel the election.

They contend, “There was a body of oral and documentary evidence, particularly the unchallenged evidence of PW23 and the Southern Ijaw Local Government Area Collation Officer that election had taken place in the local government area, and that collation had taken place in eight of the 17 wards before it was truncated by the cancellation.”
They also accuse the justices of the Court of Appeal of erroneously placing the burden of proving that election was duly conducted in the disputed area on them when the burden should have been placed on INEC.
The appellants hold, “From the state of the pleadings, the first burden of proof was on INEC and not on the appellants.”

During the hearing of his petition, the election tribunal did not hide its bias and disdain against Sylva and his legal team, as most of the evidence brought before the tribunal by the petitioners were never considered. For instance, it took both the Court of Appeal and the Supreme Court to compel the tribunal to play a video tape brought by Sylva to prove that the election was cancelled in Southern Ijaw Local Government Area of the state.

It was the concurrent findings of both the Court of Appeal and the Supreme Court that the tribunal misapplied section 84 [a] [b] [c] of the Evidence Act, which laid down conditions for admissibility of electronically generated evidence and not section 251 of the Act, as erroneously held by the tribunal.

The apex court in its judgement on the interlocutory appeal, lashed out at the tribunal for “allowing itself to be derailed into unwarranted exercise,” adding, “This is the most fallacious piece of reasoning by the tribunal, as section 84 of the Evidence Act does not provide for the production of two certificates.”
This explained the decision of Sylva to go to the Court of Appeal, where he thought he and his party will get justice, but that was not to be.

Good Reason
From the forgoing, it can be seen that Sylva’s appeal before the Supreme Court raises serious, germane and fundamental constitutional issues that have the capacity to sway the minds of the justices of the Supreme Court in his favour.

All through the gamut of his argument, right from the tribunal to the Court of Appeal, Sylva and his legal team have been consistent with the point that the December 6, 2015 governorship election in Southern Ijaw was unilaterally cancelled by the REC, which they argue lacked the powers under section 26 [1] of the Electoral Act to do so, as such powers only reside with the Returning Officer. It was on this basis that they faulted the judgement of the tribunal on the interpretation of section 26 [1] because the provisions talk of postponement and not cancellation.

They argue further that the cancellation of the election by the REC rendered any other decision taken by INEC as regards the governorship election in the state null and void.
On the arguments that having participated in the January 9 rescheduled election in Southern Ijaw Local Government Area, he has automatically waived his right to challenge the cancellation of the December 6, 2015 election, Sylva had argued that the issue of waiver does not arise, as there was a protest letter against the cancellation and, besides, there was no opportunity to go to court as at that stage of the election.

Given the pedigree of the Supreme Court in dishing out substantial justice, fear has started creeping into the minds of some elements in the state. And in their desperation to frustrate the appeal before it is heard, they have resorted to smear campaign against the integrity of the apex court. Apparently afraid of the Supreme Court, some politicians in the state, operating under some pseudo groups, have begun a campaign of calumny to pre-empt and try to browbeat the court, even before the appeal is heard.

For instance, in a desperate display of anxiety and fear, a group called Niger Delta Peace and Justice Movement has accused Sylva of playing games with the judiciary. In a statement by its general secretary, Stephen Ebibofa, it claimed that Sylva was hell-bent on intimidating and blackmailing the judiciary using the Presidency to delay proceedings at the apex court, even when all parties have already accepted service and filed their respective papers.

In opposition to that claim, the APC in the state has similarly accused the Dickson administration and the PDP of attempting to compromise the up-coming Supreme Court judgement. The PDP was already boasting that most of the judges were loyalists appointed by former President Goodluck Jonathan, APC’s state publicity secretary, Fortune Paniebi, noted in a recent statement.

In a follow-up to the intimidation campaign run and what experts have called an utter display of ignorance of the law, the PDP in the state in a press release issued by its chairman, Chief Moses Cleopas, called on Sylva to stop desecrating the judiciary.
Cleopas stated, “It is clear that Sylva and the APC have no case. All they are banking on is the dangerous propaganda that President Muhammadu Buhari will secure judgement for them by intimidating the judiciary to deliver judgement in his favour. But this proposition is certainly untenable in the face of what we went through in that election and indeed the facts in our favour.”

But a political analyst based in Yenagoa, Mr. John Ayebaralate Okhai, blames Dickson for the needless tension in the state ahead of the Supreme Court hearing and ruling on the disputed election.

Okhai said, “Those who have made a culture of bribing judicial officers to win controversial victories against Sylva in court have always been the first to point accusatory fingers in his direction in a desperate bid to divert attention from their devilish plot. Thanks to the compromising posture of some of the judges, the plan has run like clockwork.”

He recalled that before the election petitions tribunal gave its verdict, Dickson and his group were all over the place accusing Sylva of attempting to bribe the judges. The same scenario played out before the Court of Appeal gave its ruling.

“Of course, the thinking public now know better, particularly with the controversial nature of the tribunal and appeal court rulings, where flimsy technicalities, rather than the substance of the matter, formed the basis of the verdicts,” Okhai observed.
He added, “Dickson should stop embarrassing the country’s judiciary with his bribery scheme.”

Many in the state believe it is important for all groups and their sponsors to allow the eminent jurists of the apex court go through the appeal papers and take a decision one way or the other, rather than trying to cheaply blackmail and cast aspersions on them. This, they say, is because under a democratic and constitutional government, any person who feels aggrieved or that his or her right has been impinged, trampled upon, or that he has suffered injustice, has the right to approach a court of law for redress.

That is what the former governor has demonstrated as a peaceful and law-abiding citizen, many Bayelsans say. By approaching the Supreme Court to ventilate his grievance, he has simply exercised his constitutional right to appeal against the judgement in which he felt, rightly or wrongly, that some injustice has been done to him.

To demonstrate that he is a democrat and firm believer in the rule of law, Sylva has taken his grievances concerning the election and subsequent judgements of the tribunal and Court of Appeal to the highest court of the land, to see if the victory awarded to Dickson by INEC can stand up to judicial scrutiny. His expectation of justice from the bench of the apex court is rooted on his belief that the honourable justices would be guided by the letter and spirit of the law.

One thing that seems to come out clearly from Sylva’s attitude of recourse to legal action in the face of perceived political wrongs is that despite the misdemeanour of some judicial officers, he believes the judiciary as an institution is not on trial. He believes the country’s judges are among the finest in the world.

“This is a constitutional and noble path to toe, instead of resorting to violence by calling his teeming supporters to the streets,” said Mr. Faye Jacob, a lawyer. “By this exemplary act, Sylva deserves commendation and not condemnation.”