FEATURE ARTICLE

Monday, March 2, 2020
chris44488@icloud.com
London, UK
BAYELSA GUBERNATORIAL RACE: THE SUPREME COURT PRONOUNCEMENT ON REVIEW

he pronouncement couldn’t have come at a better time. That the final court cannot be asked to sit on appeal on its own judgment is trite law and practice, otherwise it would render superfluous and academic the finality of its judgments. As the Supreme Court rightly held there has to be finality to litigation(dispute). It is also exemplar, the punitive costs of N10m each awarded against the lawyers for the applicants. It is the opinion of this writer that the penalty did not go far enough. On top of the fines should have been added a referral to the NBA to consider striking them off for breach of lawyers’ code of conduct. They advised their clients to make the claims(applications) whereas they should be advising otherwise, they should be advising otherwise for they should know better. They went ahead because they hold Nigerians and their institutions in contempt. Their actions and advice had the potential to reduce Nigeria to a banana republic, that is, if it is not already a banana republic. A legal adviser worth his onions should advise his clients as to the propriety of certainty of law. The certainty principle is paramount otherwise there could be no paradigm against which advice is given. Without the certainty principle there is no law. Certainty of laws gives a lawyer the confidence to advise his client as to the merits of his potential claim. The lawyer is then able to advise his client that his instructions are not arguable and not winnable and give reasons why. The why on this occasion would have been the finality of the judgment of which the client seeks a review.

For a very long time some politicians in cohort with some lawyers who have nothing but contempt for Nigerians make frivolous applications to courts to upturn electoral results and more often than not the courts oblige them. The de facto situation has been that the courts became the electorate. They ended up hijacking the rights to elect their leaders from Nigerians. The likes of Chief Wole Olanipekun took it upon themselves to reduce Nigeria to a banana republic where anything goes. They went to Edo State and cancelled out the votes of Esan people in order to achieve a desired end for Oshiomhole. Where they knew that Edo Senatorial District made up of the Esans was the stronghold of Osunbor the opponent of Oshiomhole. Ever since they did not know when to stop. They must now stop. Enough is enough. The Supreme Court should give the guidelines, that frivolous cases should not even be issued in the first place. Such applications should not go beyond the court manager. The financing of political/electoral cases with the treasury at the expense of the people who wallow in poverty, misery without good health care, water, electricity and good schools must be revisited. A system that allows some few lawyers to unjustly enrich themselves with hundreds of millions of public funds must be re-visited ASAP. There should be additional guidelines to cap legal fees incidental to electoral petitions. Now let’s turn to the reasons for these cases in the first place in general and the Bayelsa governorship race in particular.

Bayelsa Governorship Race

The brief facts that I gather is that the running mate of Mr Lyon in the election, presented conflicting documents in different names purporting to be one and the same person. At any event the election went ahead, they won whereas the deputy should not have been given the clear to contest the election. Accountability should fall on some persons such as the APC’s screening body and even INEC. After victory PDP woke up to their responsibilities and challenged the results on grounds that the joint candidacy of Mr Lyon and his deputy is a nullity. The court/tribunal agreed and on final appeal the Supreme Court agreed. Then APC hawks and those who have in past benefited from the banana republic chaos that is Nigeria filed a petition/application at the Supreme Court to review its initial judgment in complete contempt for the principle of finality and sanctity of law. On this occasion, chaos and floodgates have been averted but knowing Nigerians they will rear their ugly heads again.

The constitution and/or the electoral law regarding minimum educational achievement as a requirement to candidate for an office.

Except for the reckless abandon in which some Nigerians carry themselves there should be no room for forgery or fake certificates. If not why is it necessary for a candidate to parade fake certificates when the constitution only prescribes education up to secondary level. Where in the books did it prescribe a formal WASC or O Level, where in the books did it prescribe a degree from Toronto or Chicago, where in the books did it prescribe NYSC discharge certificate? The answer is that some candidates in order to out compete others claim certificates that are irrelevant to the constitutional requirements. And more often than not those who parade numerous academic laurels are those who are fakes. Those who wish to achieve at the back door what they lost at the front door. I believe a Judge somewhere in Osun made a brilliant reasoned judgment over this matter in the case of Adeleke. Such a brilliant judge will rot away at the lower courts either because he lacks contacts in high places or his incidence of birth is a barrier. The judge argued that no formal certification was required. All that Adeleke needed to show was evidence that he went to school up to secondary level. In my judgment it is a brilliant interpretation of the law. I should add by way of emphasis that prospective candidates should instruct solicitors/ barristers to help them complete and submit applications to INEC. Where a prospective candidate applies through a lawyer and such candidate does not possess formal certificate(even if that was the law) in place of formal certificate, deemed qualified should be inserted in the relevant box. This in my opinion is what should have happened in the case of Buhari and Oshiomhole instead of having to end up with 100 lawyers at court. Now what is “deemed qualified”? In the case of Buhari it is ridiculous that there should be argument as to whether he has education up to secondary school level, for a candidate who has served at the highest levels of the land and has attended various military colleges. Deemed qualified means that the absence of a particular formal certificate does not mean absence of an equivalent certificate or even a certificate in excess. A few examples will suffice: in Nigeria of my generation most people with A level Economics did not possess O level Economics. Such people are not only deemed to possess O level Economics but in excess of O level. A Ph.D holder without an MA is deemed to have MA. It is my submission therefore that the likes of Buhari and Oshiomhole are not only deemed qualified but have qualifications in excess of secondary school by reasons of their previous high offices and various courses completed. Their problem was attempting to follow the crowd by arguing for formal certificates which were absent. Now going forward.

Going Forward

Prospective candidates seeking elective offices should only have to present evidence of secondary education. It is submitted a leaving school testimonial suffices or result of attempted WASC or O level suffices or evidence of deemed qualified. Where such evidence is attached to INEC application form it is for INEC to screen in or screen out. Where INEC rules out on grounds of insufficient educational standard then and only then should such prospective candidates seek judicial review of the decision by INEC. I should have thought that INEC decisions are subject to judicial review as a statutory body. I will not have done justice to this piece without revisiting the use of fake certificates by some prospective candidates.

The use of fake certificates:

The use of fake certificates is a criminal offence. Period. Henceforth any prospective candidate presenting fake certificates should be prosecuted in a criminal court and if found guilty should be sent to Kirikiri and keys thrown away indefinitely or until sanity returns to the political landscape. It is about time we cleared the Augean stable. During the saga of fake certificates or disputes as to the credibility of those who claimed to have lost their certificates or blamed third parties for their loss and resorted to 100 lawyers for representation it left me bemused as to whether Nigeria I knew was now in a different planet! I say so, because the Nigeria I know is efficient if it wants to and it’s institutions know best how to legalise certificates. For example in Nigeria of the writer’s generation bundles of WAEC records were freely available at the admission offices of universities and other institutions and rightly so. Once a prospective candidate for admission presents his statement of result or certificate the admission office will pick up the relevant bundle of WAEC records and check the result statement against it. By the mere presentation of a result, a candidate’s right to data protection is waived. Why can’t the same system applies at INEC office? Why are records of WAEC conducted exams not freely available at INEC offices to check off results presented by prospective candidates for elective offices? Why resort to sending hundreds of lawyers to courts to resolve authentication of results. Enough of the chaos and impunity otherwise very soon it will descend to parents applying to court for court orders in lieu of certificates for admission of their children to universities. Why should WAEC records freely available at admissions office all of a sudden disappear when it comes to INEC offices? The writer submits that INEC entry forms should contain a waiver clause of candidates right to data protection. In the alternative whether or not the forms contain waiver clauses, the mere presentation of a candidate’s application/form should automatically waive the right. Furthermore, the same Nigeria of the writer’s generation knew best how to legalise certificates for use abroad. The writer speaks from personal experience in this regard. Once an individual applies for legalisation at the Federal Ministry of Education, the ministry sends the individual to WAEC and his university of attendance to obtain letters of confirmation or accreditation of his certificates. At the WAEC office it takes them less than 5 minutes to produce the letter. WAEC only asks for three data: 1.what year was the exam? 2. was it June or November ? and 3. Surname. Once they have the data, the the official in attendance, walks over to the shelf, pulls out the relevant bundle, copies out and authenticates the letter in 5 minutes. Why can’t the same procedures apply to elective office candidates? The answer is simply beyond the writer. Only the puzzle that is Nigeria can answer the question. Why the courts and lawyers? It is a charade that must ?? Nigeria should stop descending into the abyss of failure. It is self inflicted.

Finally post-mortem of the main Supreme Court Judgment of Bayelsa’s Governorship Election.

All that scholars, professionals of law, students etc are left with after the finality of judgement by the Supreme Court is post-mortem. The write will now in all humility attempt a very brief post-mortem of that judgment.

The court tied Mr Lyon and his deputy with the same brush like Siamese Twins, joined in the hip and inseparable. The writer is deeply troubled by this conclusion of the court. In contract law it is the principle that where a term or terms of the contract are found to be incompatible with the law the incompatible term or terms will be struck off and the remaining terms will remain valid and enforceable. If the same principle is imported into electoral dispute then Mr Lyon’s deputy should have been struck off and the victory of Mr Lyon upheld. In the absence of the reasoned judgment or without the benefit of the reasoned judgment then the writer is left with this opinion. Nigerian courts are notorious when it comes to providing reasoned judgment. They are either delayed or not at all. The writer is unable to find a precedent for the decision. It may well be that a precedent is available within the Nigerian jurisprudence. Unfortunately the writer is an English lawyer. Applying some principles deduced from closely similar Nigerian cases and international episodes or judgments the following is submitted:

The case of Godwin Jonathan who was then a deputy governor in the same Bayelsa. It is not clear to the writer if the matter went to court but let’s look at the facts. When the then Jonathan’s boss was removed from office as the governor for misdeeds which happened here at Heathrow, Jonathan was not tied with the same brush instead he was promoted to Governorship which later gave him the opportunity to rise to presidency. Why can’t the same apply in the case of Mr Lyon? Take out his deputy and upheld his victory. Some commentators have sought to distinguish the two cases in that Jonathan’s case was a post election/inauguration matter and Mr Lyon’s was a pre-election matter. The distinction in the humble opinion of the writer is inconsequential and immaterial. Here is why- elections have been held and results declared. Mr Lyon is declared the winner. Mr Lyon is the principal and therefor able to stand on his own. He would then have made or choose a new deputy. It is the contention of this piece that it would have been right had the offending party been Mr Lyon for his deputy to fall with him. This being that the deputy cannot be deputy to nothing. Once the subject matter ceases then no legal basis for the deputy to stand. Deputy to whom? None. That is where the dichotomy between pre-election and post election applies. This being only in the case of the deputy. Hence the case of Fadeke of Kogi was rightly decided though the reasoned judgment was wrong. Fadeke had no case. He could not be a deputy who could second to the rights of his principal where the principal had not been sworn in and therefor not the governor. Once there was no governor in place then the subject matter did not exist to create a legal platform for Fadeke to become the governor. It was another case that should not have gone to court. It was a waste of legal fees and time. Had this writer been the adviser of Fadeke he would have been advised to keep his money and save his energy. As argued above the reasoning given by the Supreme Court was wrong even though the decision was the correct decision. In Fadeke’s case a re-run or do over to use the American parlance would have been the right outcome. The submission that votes are for the party is wrong. It is wrong for several reasons:

a) if votes were for political party then there would be no legal basis for a bye election. If it were right that votes belong to the party then rather than a bye election the party of the departed will be asked to simply fill the vacancy. What happens is that resignation or death triggers a bye election of which all parties field candidates to elect a new member. So in the case of Fadeke the election was inconclusive by reason of the death of his principal which in turn would have triggered a re-run(bye election)The conclusion is that Mr Lyon’s case was not one of bye election, neither was it a case of disqualification by reason of the fact that he was the principal and correspondingly the subject matter did not cease. It is the submission of this piece that Mr Lyon’s victory ought to have been upheld.

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