By Alex Enumah
The Governor of Bayelsa State, Senator Duoye Diri, has asked the Court of Appeal, Abuja, to set aside the majority judgment of the Bayelsa State Election Petition Tribunal which on Monday nullified the election that brought him to office.
The panel had in a two-to-one judgment delivered on August 17, 2020 held that the election that produced Diri as Governor of Bayelsa State was illegal and should be annulled owing to the exclusion of a political party from the poll.
The appeal which was predicated on 12 grounds argued that the two Justices ( Yunus Musa and S. Owodunni) erred in law when they concluded that the case of the petitioners had merit and accordingly granted the reliefs sought in their petition.
The majority judgment had on the basis of unlawful exclusion claimed by the petitioners, the Advanced Nigerian Democratic Party (ANDP) and its governorship candidate, Mr King George, nullified the November 16 governorship poll in Bayelsa State and ordered the Independence National Electoral Commission (INEC), to conduct a fresh election in the state within 90 days.
According to the majority judgment, the petitioners were able to establish that they were unlawfully excluded from the governorship poll by INEC.
They also held that INEC did not have the powers to disqualify any person or political party from contesting in an election conducted by it.
However miffed by the majority judgment, the governor, in a Notice of Appeal dated August 18 and filed by his lawyers led by Chief Chris Uche (SAN), is asking the Court of Appeal to quash the majority judgement of the tribunal and uphold the minority decision by Chairman of the tribunal, Justice Muhammad Sirajo which had affirmed his election as governor of Bayelsa State.
Justice Sirajo had dismissed the petition of the ANDP on the grounds that it was statute barred and also not within the jurisdiction of the tribunal being a pre-election matter.
The minority decision also held that INEC has powers to disqualify any person or party that does not meet requirements provided by the constitution and Electoral Act, adding that the issue of under-age upon which the ANDP was excluded from the November 16 poll was a legal ground for disqualification.
Among the issues Diri however anchored his appeal on is that the case of the respondents had become statute barred since it was filed out of time and ought not to be entertained by the tribunal in the first instance.
“From the date, the 1st Respondent had 21 days within which to file a petition against the alleged unlawful exclusion from the election.
“There was no election on the February 14, 2020 held by INEC to ground the 1st Respondent’s petition filed on February 26, 2020, more than five months after the declaration of results, as the ground of complaint of unlawful exclusion is a complaint against an election, not a declaration.
“The case of the 1st Respondent is not hinged on the nullification of the votes of APC candidate, David Lyon, nor on the declaration of results by the 2nd Respondent on the 14th day of February 2020; nor on the return of the Appellant as the Governor of Bayelsa State, but on its alleged unlawful exclusion from the election held on November 16, 2019.
“The 1st Respondent’s petition is statute-barred, in breach of the provisions of section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)”, he submitted.
Diri in another ground claimed that the majority judgment was wrong in law when the two Justices held that ANDP’s candidates were validly nominated, whereas being under-age they could not participate in the November 16 governorship election.
“The names of the candidates of the 1st Respondent forwarded to the 2nd Respondent were manifestly invalid for being below the constitutional age of 35 years.
“The 1st Respondent’s witnesses admitted under cross-examination that the said candidates were only 34 years of age.
“The nomination of a candidate in breach of the provision of the constitution, the Electoral Act and the INEC timetable and Schedule of Activities for 2019 General Elections (as in the instant case) cannot be termed a valid nomination.
“The mere proposal of a person as to its candidate by a political party in an election to INEC through a letter is insufficient and does not amount to a valid nomination.
“The 1st Respondent failed to plead and tender the party nomination forms filed by their candidates, the Report of the primary election for all positions, which was monitored by the 2nd Respondent and which was officially sent to the 2nd Respondent”, he said.
He further claimed that the ANDP’s candidates could not have been validly nominated since they did not tender any document stating whether the primary election through which they emerged was by direct or indirect election.
“The 1st Respondent failed to state the date of the primary election from which its said candidates purportedly emerged as to prove valid nomination of the candidates in compliance with section 87(1), (2), (3) and (4b) of the Electoral Act”.
He contended that the two Justices, in the majority judgement, erred in law when they held that INEC unlawfully excluded ANDP’s candidates.
In another ground, the governor submitted that the majority judgment was legally defective when it held that ANDP had the locus standi to maintain its petition, on the assumption that the case was not a pre-election matter.