The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Outrageous Expenditure
I have not yet read the 2023 Supplementary budget, but the first few figures I have seen being peddled about concerning expenditure on things like State House vehicles and renovations, are simply outrageous. How can the Executive and Legislature be looking after themselves so wonderfully, while the Judiciary and the rest of Nigerians are left to their harsh fate? US President, Joe Biden is using the same armoured Cadillac Limousine aka the ‘Beast’ (American made), which Donald Trump used from 2018. The armoured Range Rover (British made) purchased in Boris Johnson’s time in 2019, was also used by Liz Truss during her 45 days as British PM, and is still being used by Rishi Sunak. Here in Nigeria, Government makes the excuse that luxury cars like the Land Cruiser that the Senators use are sturdy and durable, yet they replace them every four years! If two American Presidents can use the same vehicle over a period of five years and still counting, what is the excuse of a country that finances its budget and does almost everything by borrowing, for living so extravagantly? It’s not just the optics that are bad, the needless, insensitive and imprudent expenditure is worse. These humongous amounts could have been put to better use for the security and welfare of Nigerians, to pursue laudable goals like education, health and other social objectives contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). It will indeed, be extremely disappointing, if it’s going to be business as usual with reckless and unjustifiable expenditure under the Tinubu administration. Nigeria simply cannot continue to borrow, for needless consumption. It makes no economic sense. Which sensible country buys state-of-the-art vehicles for their Government Officials every time a new administration resumes? Certainly, not the countries where we borrow money from! It is a bad policy; a beg, stop am! The other day, I saw a video of little school children being taught standing, in an uncompleted, roofless classroom with no desks and chairs. Isn’t it sad that the $150 million recovered Abacha loot should be spent on a fruitless venture like luxury vehicles for Government Officials, instead of equipping schools for the children who are our future?
Demesuoyefa Kolomo v Timipre Sylva
Now, to the business of the day! Though the more Section 29(5) of the Electoral Act 2022 (EA) is tested in various electoral cases during this 2023 election season, it seems to fail, the other side of the argument is that, without it, the courts would be even more overwhelmed and overburdened with frivolous cases about constitutional qualifications and disqualifications of candidates. A recent example of a frivolous case about constitutional qualifications, is the recent one involving former Governor of Bayelsa State and now APC Bayelsa Gubernatorial candidate, Timipre Sylva.
The failure of the aforementioned Section 29(5) is as a result of the fact that when there are meritorious cases which have not been instituted the way this law provides, which is: 1) only after the Party Primaries, 2) by a Co-Aspirant who participated in the same Party Primaries, 3) instituting an action at the Federal High Court that information supplied by a co-Aspirant either in an affidavit or a document provided in relation to constitutional requirements is false; or the Candidate is not constitutionally qualified for some reason (also see Section 285(9) of the Constitution).
When such matters are not so instituted, even if the case has merit, the court rules that it has no jurisdiction to hear such a matter and dismisses it. And, truly, even though this is the present position of the law, it sometimes sounds like a cop out or excuse on the part of the court to let the Respondent get off the allegations levelled against him or her. On the issue of how matters of constitutional qualifications should be instituted, see the cases of Akinlade & Anor v INEC & Ors (2019) LPELR-55090 (SC) per Ejembi Eko, JSC; Atiku Abubakar v INEC 2020 12 N.W.L.R. Part 1737 Page 37; Atiku Abubakar & Anor v Bola Ahmed Tinubu & Ors SC/CV/935/2023 judgement delivered on 27/10/2023.
Jurisdiction
Again, it is therefore, true, that the jurisdiction of a court is ousted, when such cases are not brought properly. In Okolo & Anor v Union Bank of Nigeria Limited 2004 3 N.W.L.R. Part 859 Page 87 per Niki Tobi, JSC the Apex Court held thus: “Jurisdiction is the pillar upon which the entire case stands. Filing an action in a court of law, presupposes that the court has jurisdiction. But, once the Defendant shows that the court has no jurisdiction, the foundation of the case is not only shaken, but is entirely broken. The case crumbles. In effect, there is no case before the court for adjudication. The parties cannot be heard on the merit of the case. That is the end of litigation, unless the action is filed in a court of competent jurisdiction, in which case the action is resuscitated de novo”. Jurisdiction is simply “the power of the court to decide a matter” – see the case Obi v INEC (2007) LPELR-2166(SC) per Fedode Tabai, JSC. It is trite that it is the Constitution and Statute that confer jurisdiction on courts, and that is why I have called upon the Legislature to take a second look at the Electoral Act. Until they do so, the hands of the Judiciary will remain tied. See the case of Sylva v INEC & Ors (2015) LPELR-24447(SC); Williams & Anor v Adollo/Stamm Intl (Nig) Ltd & Anor (2017) LPELR-41559(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC. It is also trite law that, lack of locus standi, robs a court of jurisdiction.
The public is always annoyed when a court dismisses a case without hearing it on its merit, because it lacks jurisdiction to do so. The court actually has no choice, but to do so in that circumstance. The public starts to scandalise the Judiciary with the assistance of litigation losers, and say all sorts of unpalatable things about Judicial Officers, especially when it is a case where they believe that there is merit in the claim. It is trite law that jurisdiction is the life blood of a case, and no matter well tried a case is, if the court lacks jurisdiction to hear it, all the proceedings therein are null and void and of no effect. See the case of Madukolu v Nkemdilim 1962 2 SCNLR 341.
In the recent case against Timipre Sylva, brought by Mr Kolomo, a fellow APC Party member, it is surprising that Mr Kolomo’s Counsel failed to inform his client that the court had no jurisdiction to hear the case, because Mr Kolomo lacked the locus standi to institute it, not being a co-Aspirant with Mr Sylva. It is trite law that a random member of the same political party does not have the locus standi to institute such proceedings. So, why do Nigerian Lawyers, both Senior and Junior, continue to deceive their clients and institute actions that the law doesn’t empower them to pursue? See the case of Wada & Ors v Bello & Ors (2016) LPELR-47015(SC) on party members who didn’t participate in the Primaries, lacking the locus standi to sue on matters of nomination and qualification. In a country like UK, Mr Kolomo’s Lawyer bringing such a frivolous case which is an abuse of court process, could face the Bar Standards Board for professional misconduct. But, here in Nigeria, curiously, we blame the courts and say they are delivering technical justice, they are compromised etc, instead of recognising the fact that the law doesn’t permit the action to be brought in that manner.
Kolomo v Sylva on its Merits
Even though the court is not empowered to look into a matter when it has no jurisdiction to hear it, let us look into the merits of the claim against Timipre Sylva. The Claimant’s case was that Mr Sylva was disqualified because he has already been sworn in twice as the Governor of Bayelsa State, from May 29, 2007- April 15, 2008 and May 27, 2008 – January 27, 2012 covering a period of almost five years, and that if he is elected again in the upcoming election, he would end up being sworn in thrice and spending more than eight years as Governor – see Sections 180(2A) & 182 (1)(b) of the Constitution.
Firstly, the fact that Mr Sylva’s first election was declared null and void by the Court of Appeal, is extremely pertinent, as Mr Sylva would claim that contrary to Section 182(1)(b) of the Constitution, he has only been elected once since the first 2007 election was nullified by the court. In Amgbare & Anor v Sylva & Ors (2007) LPELR-8089(CA), the Court of Appeal nullified the 2007 poll in which Mr Sylva was elected as Governor of Bayelsa State. The then Speaker of the Bayelsa State House of Assembly was ordered by the court to be sworn in as Governor, pending the conduct of a fresh election. Mr Sylva subsequently won the 2008 election, and was sworn in as Governor in 2008. In Ladoja v INEC (2007) LPELR-1738(SC) per George Adesola Oguntade, JSC, the Supreme Court held thus: “It is settled law that when an act is declared null and void, the position is 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…When an appointment is declared null and void, all it means is that the appointment was never made, and all acts of the purported appointee when he de facto held the appointment, are unlawful”. I believe this decision is self-explanatory – that, in law, Mr Sylva’s 2007 election as Governor never took place. The law only recognises Mr Sylva’s election and term in office from 2008-2012, as his first and only term as Governor of Bayelsa State.
Secondly, aside from the fact that the case of Marwa & Ors v Nyako & Ors (2012) LPELR-7837 (SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN) which the trial Judge in the recent Sylva case relied on, seems to draw a distinction between the annulment of an election and an act being declared null and void (a story for another day), Section 180(2A) which Mr Kolomo relied on, is an alteration to the Constitution that took place in 2010, three and two years after the nullified and subsequent elections of Mr Sylva in 2007 and 2008, and is therefore, inapplicable; that is, Section 180(2A) which provides that the time spent in office before the annulment of the first election shall be taken into account, cannot be applied to events that took place before the law was enacted. It is trite that, a law cannot be retrospective. In Adesanoye v Adewole 2006 14 N.W.L.R. Part 1000 Page 253, the Apex Court held that Section 4 of the Constitution empowers the National Assembly to make laws with retrospective effect and that such laws are generally not unconstitutional, but it should be stated in clear terms that the law is retrospective. In Afolabi v Governor, Oyo State 1985 2 N.W.L.R. Part 9 Page 734, the Supreme Court held inter alia that a retrospective law is prima facie questionable policy, as it deprives an individual of an accrued right. Section 180 (2A) of the Constitution doesn’t state that it is retrospective. In fact, Section 2(2) of the Interpretation Act 2004 provides that when there’s no provision as to the time an enactment is to come in force, it will come into force either when the enactment was made, or on the day it is passed. It seems more logical for it to be the day it is passed, which in the case of Section 180(2A) is 2010.
Conclusion
It is therefore, highly unlikely that even if Mr Kolomo’s case was heard on its merits, it would have succeeded against Mr Timipre Sylva. Again, like in the case of the Presidential Election Petitions where no costs were awarded, the N1 million cost awarded against Mr Kolomo, is insufficient to act as a deterrent to the filing of frivolous and vexatious cases.
Finally, the winning combination for elections in Nigeria are the enactment of good electoral laws, INEC conducting satisfactory elections, and Lawyers taking into serious consideration the laws and authorities pertaining to election matters, before they institute actions.
