Opinion: Why pre-election cases must be decided before polls (1) – By FEMI FALANA

In a unanimous judgment delivered on February 14, 2020, the Supreme Court of Nigeria sacked the Bayelsa State Governor-elect, David Lyon and his Deputy, Biobarakuma Degi-Eremieoyo who had run on the platform of the All Progressive Congress.

The judgment was nullified on the grounds that Degi-Eremieoyo presented false information to the Independent National Electoral Commission in his nomination form for the governorship election held on November 16, 2019.

Consequently, the court directed INEC to declare the results of the election, following the cancelation of the votes scored by the APC in the election. Barely 24 hours later, INEC declared the candidate of the People’s Democratic Party, Senator Duoye Diri as the new Governor-Elect.

No doubt, the pre-election matter filed by the PDP against the APC and its governorship candidates in the Bayelsa Stare has been rested by the judgment.

It has since continued to generate reactions from a cross-section of the society. With respect, majority of the people, who have reviewed the judgment, have not paid attention to the line of dichotomy that has been drawn between pre-election and election petitions by section 285 of the Constitution, as amended by Alteration Act No 8 of 2017.

Contrary to the belief of some lawyers the said amendment has altered the electoral jurisprudence of the country. This review is essentially anchored on the implications of the effect of the amendment on pre-election matters.

Penalty for fielding unqualified candidates by political parties

By virtue of section 31 of the Electoral Act, disputes arising from the information contained in the nomination form of a candidate contesting any election shall be resolved before the election is conducted by the Independent National Electoral Commission. In other words, it is a pre-election matter, which cannot continue to be heard once the election has been held.

Indeed, the penalty for fielding unqualified candidates by political parties has to be meted out to those who are found to have violated the provisions of the Electoral Act before the election. I am referring to Section 31(5-8) thereof which states:

“5. Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court; High Court of a State or FCT against such persons seeking a declaration that the information contained in the affidavit is false

“6. If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the elections.

“7. A candidate for an election shall, at the time of submitting the prescribed form, furnish the Commission with an identifiable address in the State where the intends to contest the election at which address all documents and court processes from either the Commission or any other person shall be served on him.

“8. A political party which present to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, commits an offence and is liable on conviction to a maximum fine of N500, 000.”

Since an unqualified candidate is expected to be disqualified from contesting the election, the pre-election matter praying for his or her disqualification has to be decided before the election. A candidate cannot be disqualified from participating in an election that has been held and concluded.

Having regards to the fact that the nomination of a governorship candidate and deputy governorship candidate is a joint ticket, section 182 (1) of the Constitution provides that no person shall be qualified for election to the office of Governor of a State if he or she fails to meet the conditions stipulated in the section, including the presentation of a forged certificate to the INEC. The same prerequisites are applicable to a deputy governorship candidate pursuant to section 187 (2) of the Constitution.

As far as section 285 of the Constitution is concerned, a pre-election matter can no longer be turned into a post election matter and determined after the election.

Ex abudanti cautela, section 285 (14) of the Constitution, as amended in 2017, defines a pre-election matter as a suit filed by an aggrieved aspirant or political party “….in respect of the selection or nomination of candidates for an election” or “……in respect of preparation for an election.” It is crystal clear from the novel provision of the Constitution that a pre-election case filed “in respect of preparations for an election” cannot metamorphose into a post election case.

Right of appeal by parties in pre-election matters

It was generally believed in legal circles that a pre-election could be continued after an election being challenged has been held. The practice was questioned by the Supreme Court in the case of Toyin Obayemi v People’s Democratic Party (unreported Suit No SC. 308/2018), wherein the appellant had filed a pre-election case at the Federal High Court on 10th April 2015 to challenge the nomination of the 3rd respondent on the ground that he forged the WAEC certificate submitted to INEC.

Before the determination of the case, the respondent won the election to the Ekiti State House of Assembly. Thereafter, the learned trial judge granted the relief sought by the appellant and ordered the appellant’s removal from the assembly. The appeal filed at the Court of Appeal by the Respondent was allowed. Dissatisfied with the decision the appellant filed an appeal at the Supreme Court on March 13, 2018.

In a judgment delivered on 18th January 2019, the Supreme Court dismissed the appeal on the ground that it was filed after the 60 days stipulated by section 285 of the Constitution, notwithstanding that the said amendment which limits the time for pre-election matters came into force on June 18, 2018, i.e. during the pendency of the appeal.

In fact, the amendment took effect three months after the filing of the appeal. In justifying the position of the Court, Tanko Muhammad JSC, as he then was, held that “Thus, once an appeal comes outside the time set out for its determination, the court has no jurisdiction to entertain it. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 31 WRN 179; (2006) 9 NWLR (Pt. 84) 189, Ogun State Govt. v. Dalami (Nig.) Ltd. (2017) 9 NWLR (Pt. 1035) 66.

It is clear that this appeal has been caught up by the limitation of time in section 2 (13)) of the Constitution afore stated. That section renders the appeal a nullity. By this reason alone, the appeal is rendered incompetent and it is hereby struck out.”

In applying the law with retrospective effect to the pending appeal the Supreme Court was desirous to put an end to the pre-election matter pursued after elections. It is on record that the definitive pronouncement of the Supreme Court in the appeal ended all pre-election matters pending in the various high courts and appeallate courts at the material time.

Although the law did not extinguish the right of aggrieved persons to exercise their right of appeal to finality the Supreme Court did so in order to discourage them from turning such matters into post election cases. Punch