Like General Polls, Off-circle Gubernatorial Litigations Fail to Produce Upset

The curtains over legal dispute in the off-circle governorship polls was drawn last week when the Supreme Court delivered the final judgements in the Bayelsa, Kogi and Imo States governorship elections, without ordering the removal of any governor, indicating either that it is becoming nearly impossible to void INEC’s declaration of winners or simply that the judiciary is refraining from replacing the choices of the electorates. Alex Enumah reports.

In Nigeria, there are three categories of persons that decide the faith of political office seekers; first, the electorates who voted in an election, second is the electoral umpire that conducts the poll and lastly, the judges who decide the legality or otherwise of that election. So, any candidate going for an election in the country makes adequate preparation for these separate groups according to his or her understanding of the powers of each category.

Over the years, the claim that power belongs to the people has gradually waned as that power has been usurped by the Independent National Electoral Commission (INEC), which most times conduct shambolic elections and the courts which hold that allegations of non-compliance, rigging, ballot snatching, disenchantment of voters, violence, among others were not proved beyond reasonable doubt to warrant a verdict in favour of the petitioners.

The situation has become so bad that politicians now do anything to get INEC to declare them winners of an election and at the same time bold enough to tell losers to go to court.

And this is because they know the allegations of malpractice and other issues that marred the polls are very difficult to prove, going by our current legal laws or that they have a lot of money to buy the judges over.

One politician that seemed to have understood the development better is the candidate of the People’s Democratic Party (PDP) in the last governorship election in Kogi State, Senator Dino Melaye, who after losing at the poll to Usman Ododo of the All Progressives Congress (APC), stated that despite not being satisfied he would not be going to the court to challenge the declaration of Ododo as winner of the election. Although, the candidate of the Social Democratic Party (SDP), Mr Murtala Ajaka, initially refused to challenge the outcome of the poll, he, eventually did so up to the Supreme Court.

Ajaka and his co-candidates in Bayelsa and Imo States claimed that they won the election but that the outcome was rigged in favour of the governors. INEC had declared Ododo, winner of the November 11, 2023 governorship poll haven scored 446,237 votes to defeat Ajaka, who came second with 259,052 votes, and Dino Melaye who came distant third position with 46,362 votes.

Dissatisfied, Ajaka and the SDP had approached the tribunal to challenge the victory of the APC and its governorship candidate. Citing substantial non-compliance with the Electoral Act, over voting as well as other irregularities, Ajaka had asked the tribunal to nullify the declaration of Ododo as governor. But, the tribunal headed by Justice Ado Birnin-Kudu in its May 27, 2024 judgement held that the petition was bereft of substance and accordingly dismissed it.

According to the three justices, SDP and Ajaka failed to prove the allegations of over-voting and non-compliance with the Electoral Act, 2022 in the petition, because all the evidence tendered by their witnesses was incompetent and full of inconsistencies.

The three-member panel also agreed with the submissions of the respondents that the allegations of forgery raised in the petition were pre-election matter, which ought to have been raised 14 days after the documents were submitted to INEC, and as such not within the jurisdiction of the tribunal.

Not satisfied, Ajaka approached the appellate court but was told his appeal was incompetent. According to Justice Onyekachi Otisi, the appellants could not provide credible evidence that the judgement of the tribunal was perverse. The appellate court also pointed out that the tribunal was right to have expunged the evidence of the first witness called by the petitioners for being hearsay documents.

On the issue of forgery, the appellate court also agreed with the tribunal that the issue was a pre-election matter, which was outside the jurisdiction of the court. According to Justice Otisi, the allegation of forged document Ododo was said to have submitted to INEC was a pre-election matter which is handled by the Federal High Court and not the Tribunal. Having resolved all the issues raised in the appeal against the appellants, the court dismissed the appeal for lacking in merit and upheld the judgement of the tribunal.

Not deterred, Ajaka approached the apex court believing that both the tribunal and Court of Appeal erred and that their errors would be corrected and the declaration of Ododo as winner of the November 11, 2023 governorship election would be nullified. Unfortunately for him, this was not the case, as he and his die hard supporters that had accompanied him to the Supreme Court last Friday were not only disappointed but fully confronted with reality. That reality, which Ajaka admitted in a statement is that the 2023 Kogi governorship election has long been lost at the poll, hence the need to prepare for 2027.

“The world has witnessed the miscarriage of justice in our nation’s judiciary system, and we cannot help but feel a deep sense of disappointment and disillusionment. The judgement has left many questions unanswered and has further eroded the trust of the Nigerian people in the judiciary. We reject the outcome even though we have no other options available we will abide by the decision of the apex court”, the SDP candidate had said in a statement.

“However, we take solace in the fact that 2027 is around the corner, and we will know what to do. We will regroup, reassess, and come back stronger. We consider this chapter closed, but our focus now shifts to supporting the Economic and Financial Crimes Commission (EFCC) in bringing Yahaya Bello to book. We will provide all necessary support to ensure accountability and transparency in governance”, the statement added.

However, Ododo was not the only one who had his hope dashed in the off-circle governorship litigations. Former Minister of Petroleum Resources and former Bayelsa Governor, Chief Timipre Sylva also had his dream of getting a second shot at the state’s number one office evaporated at the apex court. Like Ajaka, he had challenged the election results from the tribunal up to the apex court. Recall that INEC had declared Senator Douye Diri of the PDP winner of the November 11, 2023 governorship election in Bayelsa State, haven polled 175, 196 votes to defeat his closest rival, Timiprey Sylva of the APC who scored 110,108 votes.

Sylva, in his petition had claimed that he won the governorship election but for the cancellation of results in three local government areas which were his stronghold. The affected local government areas were Southern Ijaw, Ogbia and Nembe.

However, INEC which conducted the poll maintained that elections did not hold in the said LGAs due to incidents of diversions of materials and disruption of the electoral process over alleged bypass of the BVAS machine. Besides, they tendered the Form EC40G to confirm that there were no elections in the said polling units as well as Certified True Copies (CTCs) of results from INEC to prove that the results brought before the court by the petitioners as evidence that election held at the polling units were forged.

Delivering ruling in May this year, a three-member panel of the Bayelsa State Governorship Election Petition Tribunal, led by Justice Adekunle Adeleye, dismissed Sylva’s petition for being incompetent and lacking in merit. According to the tribunal, the petitioners failed to prove their allegations against the re-election of Diri, adding that relevant witnesses were not called and relevant documents not tendered.

Besides, the panel struck out as incompetent, all the additional proof of evidence as well as statements on oath of some of the witnesses that testified for the petitioners, on the grounds that it was not filed within the 21 days stipulated by law. The tribunal held that such petition must at the time it was filed, be accompanied with written statements of all the intended witnesses.

The judgement observed that the decision of Sylva and his party to file their additional proof of evidence and statement on oath of witnesses, long after they had filed the petition, was “tantamount to a surreptitious attempt to amend the case of the petitioners.”

More so, the tribunal dismissed the allegation that the deputy governor,

Lawrence Ewhrudjakpo, tendered forged University Degree Certificate and NYSC Exemption Certificate, to the INEC, in aid of his qualification to contest the election.

It held that the allegation was a pre-election matter that ought to be litigated before the Federal High Court, adding that the matter had become statute barred since the petitioners failed to challenge the genuineness of the certificates, 14 days after it was submitted to INEC.

Besides, it held that the issue of Ewhrudjakpo’s educational qualification was previously determined by a court of competent jurisdiction. The tribunal said it took judicial notice of the fact that the 3rd Respondent, Ewhrudjakpo, is a legal practitioner, saying it was satisfied that he was eminently qualified to contest the election. Likewise, the tribunal noted that whereas Sylva and his party prayed it to declare that they were the valid winners of the governorship election, they equally applied for the same election to be declared invalid.

It held that the prayers of the petitioners were contradictory, adding that Sylva and APC did not tender any electoral material to show that any irregularity occured during the election. In addition the tribunal noted that the case of the petitioners failed because they could not show, polling units by polling units, the particulars of the non compliance they alleged and how it substantially affected the outcome of the election.

Unfortunately for Sylva, both the Court of Appeal and the Supreme Court in their respective judgements said they found nothing wrong with the findings of the tribunal and subsequently affirmed the declaration of Diri as winner of the November 11, 2023 Bayelsa governorship poll.

In Imo State, both Athan Achonu of the Labour Party (LP) and Samuel Anyawu of the PDP had challenged the declaration of Uzodimma as winner of the November 11, 2023 governorship election in Imo State, citing similar grounds like that of Ododo and Sylva. Not surprisingly, the courts from the tribunal to the apex court held that these allegations were not proved by Achonu and Anyanwu.

Besides the off-circle election, it should be pointed out that the apex court also during the 2023 general election litigations did not order the sack of any governor, over issues of irregularities, non-compliance, over-voting, violence and other malpractices unlike the past.

Recall that in 2020, the apex court had sacked Emeka Ihedioha of the PDP as Governor of Imo State on grounds that votes accrued to Hope Uzodimma of the APC were excluded by INEC from the final results.

INEC had declared Ihedioha winner of the March 11, 2019 governorship election in Imo State having polled 273,404 votes to defeat his closet rival, Uche Nwosu of the Action Alliance (AA), who scored 190,364 votes. While Ifeanyi Ararume of the All Progressives Grand Alliance (APGA) came third with 114,676, Uzodimma of the APC came fourth with 96,458 votes and Ikedi Ohakim of the Young People’s Party (YPP), fifth with 527 votes.

Both the tribunal and Court of Appeal had affirmed Ihedioha’s election until the apex court held otherwise and ordered his sack on January 9, 2020.

“Vote due to the appellant Senator Hope Uzodimma and the APC from 388 Polling Units were wrongly excluded from scores ascribed to the appellant (to them),” Justice Kudirat Kekere-ekun now acting Chief Justice of Nigeria (CJN) had held then.

“It is thereby ordered that the appellant votes from 388 Polling Units unlawfully excluded from the appellant vote declared shall be added and that the first respondent, Emeka Ihedioha, was not duly elected by a majority of lawful votes cast at the said election.

“His return as the elected governor of Imo State is hereby declared null and void and accordingly set aside.

“It is hereby declared that the first appellant (Mr Uzodimma) holds the majority of lawful votes cast at the governorship election held in Imo State on March 9, 2019.”

She subsequently ordered INEC to withdraw the Certificate of Return issued to Ihedioha and issue a fresh one to Uzodimma as duly elected governor of Imo State.

Besides Imo, the apex court also voided the election of David Leon of the APC as governor of Bayelsa State, on the eve of his swearing in, on account of forgery and non qualification of the deputy governor-elect, Biobarakuma Degi-Eremieoyo.

A five-member panel of the apex court led by Justice Mary Peter-Odili, now retired, held that Degi-Eremieoyo, was not qualified to participate in the 2019 governorship election in 2019, haven presented forged certificates to INEC in aid of his qualification for the election. She subsequently ordered INEC to withdraw the Certificate of Return issued to Leon and the APC and issue a fresh one to Douye Diri and the PDP, who scored the next highest number of votes during the election.

However, going by the outcome of litigations both at the 2023 general and off-circle elections, it appears the court is moving away from deciding who becomes a governor or even president. It would be recalled that both the election tribunal and the Court of Appeal in the general election had sacked governors Sule of Nasarawa, Gabriel Muftwang of Plateau and Abba Yusuf of Kano States, over alleged malpractices, but the apex court in the final judgements set aside their removal from office.

Whether this is an unwritten policy or simply the fact that it is very difficult to prove allegations of non-compliance, irregularities, forgery or provision of false information is not yet clear. But, a lot of people are of the opinion that it was high time the court removed itself from deciding who rules the people.