Nseobong Okon-Ekong and Segun James examine the legal implications of the ruling of the Bayelsa State Governorship Election Tribunal which may result in a fresh poll
It is not yet time for the Bayelsa state governor, Senator Douye Diri to sleep easy. The Bayelsa Governorship Election Tribunal ruling yesterday has forced a rude awakening on him. Until now, Diri was comforted by providence which turned the table in his favour in a last minute Supreme Court judgement which removed Chief David Lyon of the All Progressives Congress (APC) who was presumably elected as governor. Lyon was sacked on the eve of his swearing in, this change of circumstance foisted the nickname, Ted ‘Miracle Governor’ on Diri.
The tribunal in its verdict delivered in Abuja by a three-member panel of justices presided by Justice Ibrahim Sirajo, said that the election of Governor Diri and that of his deputy, Lawrence Ewhrudjakpo has been nullified following a petition filed by the Advanced Nigeria Democratic Party (ANDP).
The tribunal asked INEC to conduct a bye-election within 90 days. According to the tribunal, election was nullified on the grounds that the ANDP, being one of the registered political parties, was unlawfully excluded from participating in the November 16, 2019 governorship election. The tribunal said it found merit in the petition and consequently nullified the election. The tribunal ordered the Independent National Electoral Commission (INEC) to conduct a bye-election in the state within 90 days.
Following the disquiet that the annulment created in the state, Diri quickly came out to say he would appeal the ruling.
In a statement signed by his acting Chief Press Secretatary, Mr. Daniel Alabah, Diri said he will appeal ruling of the state election petition tribunal sitting in Abuja and has consequently instructed his lawyers to file the necessary papers.
Governor Diri, who spoke shortly after the tribunal ruled that the Independent National Electoral Commission (INEC) wrongly excluded the Advanced Nigeria Democratic Party (ANDP) governorship candidate from the November 16, 2019 election, said he has implicit confidence in the judiciary that he would triumph in the end.
“We trust in the judiciary and we are appealing the judgement. With God on our side, we will get justice. This is a court of first instance and I have instructed our lawyers to file an appeal. We have a right of appeal even up to the Supreme Court.”
It will be recalled that Diri publicly acknowledged that he embarked on a season of fasting and prayers that apparently won God’s heart and brought about what was seemingly impossible in the eyes of many.
So far, Diri has won all litigations against his governorship, both from the opposition and from within his party, especially the hard fighting Chief Timi Alaibe. But ruling by the election tribunal nullifying his election is now ruffling feathers in the state.
The governor urged members of the Peoples Democratic Party (PDP) and his supporters not to panic and to continue to remain calm and law-abiding.
The ANDP case that which led to the annulment of the governor’s election preceded his ascension to the governorship. Until the Supreme Court nullified the election of Mr. David Lyon of the All Progressives Congress (APC) as the duly elected governor, the ANDP had instituted its case against the Independent National Electoral Commission (INEC), insisting that it has no power to exclude it from the election.
The ANDP never sued any other party but the INEC. Now that the tribunal has nullified the Governor’s election, can he appeal in a case that he was not a party to? In the event that the Commission decides to abide by the ruling, who will participate, and would the governor and his deputy be asked to step aside pending the outcome of a new election? That is the question as the battle for the soul of Bayelsa state take a new dimension.
According to Lagos constitutional lawyer, Mr. Morenikeji Saliu, Diri has no right to appeal the judgment. Instead, his only recourse is to be joined as an interested party in the case.
He stressed that for that to happen, he must make an application for a joiner because the judgment has negatively affected him.
Saliu however opines that the Doctrine of Standing By states that if you know that a court action may adversely affect you, it is incumbent on you to show interest in the matter so that the court can hear and adjudicate on the matter completely.
He said that if the Governor had chosen to standby while the case goes on in the tribunal, he cannot complain of any iniquity as he was a quest to the matter while it goes on.
Saliu stressed that while the PDP and Diri can participate in the event of an election, both the APC and Its candidate in the election, Mr. David Lyon cannot.
According to him, while the ineligibility of Lyon and his deputy has been decided by the Supreme Court, the APC cannot replace him or nominate another candidate.
He said that the only recourse left for the supporters of the party is to move to another party and support the candidate to win.
Not minding their peculiar circumstance, supporters of the APC trooped out on the streets of Yenagoa, the Bayelsa State capital in celebration of what they consider the loss of a political foe who robbed them of joy on the verge of victory when Governor Diri was miraculously pronounced governor of the state on the eve of the swearing in of Chief David Lyon of the APC who supposedly won the governorship election. However, many of these APC supporters do not yet know that they may not have a candidate even if another election is held.
Meanwhile, the Governor’s legal team has said that by section 143(1) of the Electoral Act, if the Tribunal determines that a candidate returned as elected was not validly elected, then if notice of appeal is filed within 21 days from the date of the decision, the candidate returned as elected shall notwithstanding the contrary decision remain in office pending the determination of the appeal. The Commission is not obligated to give effect to the said judgement of the Tribunal till the parties exhaust their right of appeal as provided in the law.
They insisted that there are germane constitutional issues raised by the judgement and the Commission will take a position when it receives the certified true copy of the judgement. This is because the issues raised in the petition revolve around the invalidity of the nomination of the Deputy Governorship candidate.
“Furthermore, the issue of nomination and substitution of candidates raised in the petition fall within the ambit of pre-election issues covered by the 4th alteration to the Constitution that must be filed within 14 days of the occurrence of the event. From the records in the Commission, the Advanced Nigeria Democratic Party (ANDP) was one of the political parties that signified its intention to contest the Bayelsa Governorship Election that took place on the 16th day of November 2019. From our records, the party conducted party primaries and at the end of the exercise it submitted the name of one Peter Esinkuma
David as its Deputy Governorship candidate.
“From the affidavit evidencing age and the affidavit sworn to by the candidate, the age of the candidate at the time of the submission of their nomination was 34 years contrary to section 177(b) of the Constitution that makes it mandatory that only those who are 35 and above can contest the election. In the candidate’s statutory declaration of age and affidavit attached to his form, the party stated that the candidate was born on the 10th day of February 1985.
“On the 13th day of September, 2019, the Commission wrote to the party drawing their attention to the constitutional agerequirement of 35 years for Governorship/Deputy Governorship candidates as stipulated in section 177(b) of the Constitution.
“The Commission also informed them of the invalidity of their nomination for the 16th November 2019 Governorship election in Bayelsa State.
“On the 21st day of September 2019 and in response to the letter of the Commission dated the 13th September 2019, the Advanced Nigeria Democratic Party wrote to the Commission acknowledging the invalidity of their nomination and forwarding the name of one Miss Inowei Janeth as their new Deputy Governorship candidate.
“On the 27th of September 2019, the Commission informed the party that the deadline for the submission of nominations as provided for in the Timetable and Schedule of Activities released by the Commission on 16th May 2019 was 9th September 2019. The Commission also informed the Party that since they did not submit valid nomination, they couldn’t validly substitute any candidate. Consequently, the name and logo of the Party did not appear and was not reflected in the ballot paper.”