Author: The Nation

• By Henry Adebola Olusiyi

With the successful conclusion of the 2023 general elections, which have, quite naturally, thrown up winners and losers, the next stage is the resolution or determination of election petitions arising therefrom.

By the provisions of section 239 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Court of Appeal shall, to the exclusion of any other court of law in Nigeria, have original jurisdiction to hear and determine, inter alia, any question as to whether any person has been validly elected to the office of president or vice president under the said constitution.

By the provisions of section 285 of the 1999 Constitution, as amended, Election Tribunals are to be established to hear and determine petitions as to whether any person has been validly elected as a member of the National Assembly; or any person has been validly elected as a member of the House of Assembly of a state, or as to whether any person has been validly elected to the office of governor or deputy governor of a state.

By subsection 1 of section 285 of the 1999 Constitution, as amended; there shall be established for each state of the federation and the Federal Capital Territory one or more election tribunals to be known as the National and State Houses of Assembly Election Tribunals.

By subsection 2 of section 285 of the 1999 Constitution, as amended, there shall be established for each state of the federation an election tribunal to be known as the Governorship Election Tribunal.

It is important to note that the election tribunals as created by and provided for by the 1999 Constitution, as amended, are known as election tribunals, simpliciter. Nowhere in the 1999 Constitution, as amended, or in the Electoral Act, 2022, are they referred to as Election Petition Tribunals or interpreted as such.

By the provisions of section 246 of the 1999 Constitution, as amended, an appeal from any decision of a national and state Houses of Assembly Election Tribunal shall lie as of right to the Court of Appeal and shall terminate there.

By the provisions of section 233 of the 1999 Constitution, as amended, an appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right on any question as to whether any person has been validly elected to the office of president or vice president, or as to whether any person has been validly elected to the office of governor or deputy governor under the constitution.

While appeals from decisions of the Governorship Election Tribunals may go right up to the Supreme Court of Nigeria, those from the National and State Houses of Assembly Election Tribunals cannot go beyond the Court of Appeal.

The finality of the decisions and determinations of the Supreme Court on any matter is enshrined in section 235 of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which clearly provides that no appeal shall lie to any other body or person from any determination of the Supreme Court. Once the Supreme Court has spoken on any matter, Rome has spoken, as it were, and it is finished.

“The finality of the decisions of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation. The Justices that man the Court are of course fallible but their judgments are, as the constitution intends, infallible.”

These are the words of wisdom of Uwais, J.S.C, as he then was, in the case of Adigun & Ors.v. the Governor of Osun State & Qrs (1995) LPELR-178(SC)

There is no doubt whatsoever that all eyes are now on the election tribunals and courts which are saddled with the various election petitions pending before them.

While an election petition shall be filed within 21 days after the date of the declaration of result of the election, an election tribunal shall deliver its judgment in writing within 180 days from the date of filing of the petition, as provided for by subsections 5, 6 and 7 of section 285 of the 1999 Constitution, as amended.

An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgment of the tribunal or Court of Appeal, as provided for by subsection 7 of section 285 of the 1999 Constitution, as amended.

There is no doubt whatsoever that expectations concerning the outcomes of the various election petitions are very high, but we must not lose sight of the fact that cases are won in court, not on the basis of public opinion or media hype, but by the quality or probative value of the evidence proffered by the parties. No reasonable tribunal or court will turn in a judgment in favour of a party or litigant who has not clearly made out a good case.

An election tribunal or court is not expected to give its judgments on the basis of sentiments, emotions or public opinion; but according to the evidence before it and the applicable law. In the case of Ezeugo v. Ohanyere (1975) 6-7 S.C. 17 at page 184, Obaseki, JSC, of blessed memory, admonished thus: “Sentiment commands no place in judicial deliberation for if it did, our task would be infinitely more difficult and less beneficial to the society.”

It is in the best interest of the society that our courts should not be put under pressure in the discharge of their duties.

No matter how good a case may look like in the eyes of the public, if it is not supported by concrete and solid evidence before an election tribunal or court, it will amount to nothing, as findings of fact or conclusions arrived at must be based on solid legal evidence before the court, and not on mere speculations, possibilities assertions or conjectures. In the case of Orji  v. PDP (2009) 14 NWLR (Pt. 1161) 310 at 331, the Supreme Court held: “the role of a trial court is to hear evidence, to evaluate that evidence, to believe witnesses who testified and to decide the merits of the case based on the findings. When a trial court acts on speculations rather than on the evidence then it has abandoned its proper role. No trial court has a right to draw conclusion of fact outside the available evidence. Such conclusion will be regarded as perverse.’’

 I do know from my little experience that the task before a petitioner, who is alleging corrupt practices or non- compliance with the provisions of the Electoral Act, is not a leisurely walk in the park, having regard to the heavy burden placed upon him to prove his case by cogent and compelling evidence, within a tight time – frame. See the cases of 1. Ihute v. INEC & Ors (1999) LPELR-6707(CA),

2. Andrew & Anor v. INEC & Ors.(2017) LPELR-48518(SC)

3. Fasuwa & Anor v. Otukoya & Ors. (2015)LPELR- 41802(CA)

In due course, the election tribunals and courts will begin to roll out their rulings and judgments, after a painstaking exercise. The judgments should run down as waters, and righteousness as a mighty stream. Aggrieved parties or litigants should exercise their right of appeal without casting aspersions on the integrity of the judges who are on oath to do justice without fear or favour. See the case of Association of Senior Civil Servants of Nigeria v. the Governor of Bayelsa State (2019) LPELR-47261 (CA).

 •Hon. Justice Olusiyi is a retired Chief Judge of Kogi State.  

Curtains will fall on the administration of President Muhammadu Buhari and some 20 state governors in about a  week from now, and all manners of exit rites have been on parade. Some of the rites can be rationalised and fall within the mould of government being a continuum. But others are downright grotesque or curious, to say the least. It’s like the local wisecrack that on the day an elephant dies, you get to see all shades of blades brandished to carve up the huge carcass.

At the central level, there’s the proposed $800million loan from the World Bank that the Buhari presidency recently sought leave of the National Assembly to apply for. According to the presidency, the loan is meant for social investment programme aimed at succouring  the poorest of the poor when petroleum subsidy gets removed. But the subsidy will be in place until after the Buhari administration leaves office, and you would wonder why it should fall on the administration to determine how to disburse intended remediation fund regarding a policy that will kick in outside of its tenure. Besides, the criteria for applying the borrowed funds aren’t in consensus, because ascertaining deserving beneficiaries is best done when the practical impact of the subsidy removal policy is encountered; meaning the incoming administration may be better placed to articulate interventions to cushion the aftereffects.

And neither is the wisdom of Nigeria incurring the indebtedness generally agreed upon – not when the outgoing administration’s own appointees lately said the country was bursting reasonable limits in her debt portfolio. Meanwhile, the Senate only recently approved the president’s request to restructure the N22.7trillion loans that the Central Bank of Nigeria advanced the federal government under its ‘ways and means’ policy that allows government to borrow from the apex bank when it needs short-term or emergency funding amidst delay in expected cash receipts or fiscal deficits. The Buhari administration said it relied heavily on ‘ways and means’ funding when the country started experiencing  significant shortfall in revenue, edging the indebtedness to N22.7trillion as of mid-December 2022.

Another rite of exit the central government has had to explain is the award of multi-billion naira contracts barely two weeks to handover. After the Federal Executive Council meeting last week, Transportation Minister Mu’azu Sambo said government would continue to function optimally up till 28th May. Responding to a question on why contracts were being awarded at the instance of outgoing ministers who wouldn’t be in office to execute those contracts owing to tenure expiration on 29th May, Sambo told journalists that the government was elected to function from 2019 to 29th May, 2023. “Should we now stop functioning one month before the next administration because we are coming to the end of our tenure? This government must work. We expect the next government to also work until the very last day of their tenure,” the minister said. His Water Resources counterpart, Sulaiman Adamu, further explained that contract award by government is a long and technical process that typically spills across administration tenures. “We do not control the process, but when it is completed and we are still in office, we are duty-bound to bring these memos to Council for approval. Government is a continuum. There are still a lot of memos pending, “ he said inter alia, adding: “Some of the very first memos we brought to Council in 2015, for me, I had no idea when they started, but I had to be briefed on them. So, government is a continuum and it should be seen as such.”

You really can’t fault the argument that government is a continuum and  business must carry on until the last day of a particular administration’s tenure. But there are some moves, especially at the state level, that do not fit with the notion of government just being a continuum. In Ebonyi State, Governor David Umahi swore in four new commissioners into his cabinet 18 days to the expiration of his second and final term of office as governor. Like everyone else whose tenure falls within the general election cycle, the governor leaves office on 29th May and will be taking a seat in the 10th National Assembly as senator representing Ebonyi South district. But he, penultimate Tuesday, administered oath of office as commissioners on four cabinet newcomers who until their new appointment were his aides: three as senior special assistants and the fourth a special assistant. During the oath-taking at Government House in Abakaliki, Umahi charged the new commissioners to use the brief opportunity they have to leave a legacy of service to the state and humanity. You could say the brevity of time available to them was further underscored by the fact that at the same forum, the governor also swore-in members of the 29th May handover committee.

The Ebonyi governor must have his reasons for considering it important to install new commissioners simultaneously with preparing for exiting office, but those reasons aren’t self-evident. It is highly debatable that the new appointees have enough time to settle into office, much less do anything in exercise of the office. Interestingly, reports about the commissioners’ swearing-in didn’t even indicate what specific portfolios they were assigned, who they were replacing and what happened to those being replaced. Chances are the outgoing cabinet was being enlarged and the new appointees given the commissionership as sinecure jobs to enhance their exit package when the government winds out soon. This, apparently, would be in payment for their loyal services hitherto to the governor. Only the governor isn’t paying with his money, Ebonyi people are with their commonwealth.

Government is a continuum and late-term appointments aren’t in themselves objectionable, especially where these are career or tenured appointments that fall due in the closing days of the appointer’s own tenure. In the last week of April, Umahi swore-in six permanent secretaries and seven members of the state’s anti-corruption body. At the oath-taking, he assured the appointees they would not be removed by incoming Governor-elect Francis Nwifuru, even as he vowed not to interfere with the new administration. And he didn’t post the perm secs: “Go back to your respective places of work, your tenure is not ending with me. The only person I am posting now is the permanent secretary, Lagos Liaison; the rest will be done after I have consulted the governor-elect,” he told them. In all those, the governor was on good ground. But the appointment of commissioners two weeks to exit can’t be likewise rationalised.

In Delta State, Governor Ifeanyi Okowa last Tuesday sent a N71billion supplementary appropriation bill to the state assembly for legislative approval. In his letter to the assembly, the governor described the bill projecting N5.6billion for recurrent expenditure and N65.5billion for capital expenditure in 2023 as vital for appropriation to fund ongoing projects, and as well pay for some important government plans and activities. He said there had been actual and projected increases in fiscal receipts and he would appreciate if the bill was given immediate approval. Put bluntly, Okowa was saying the state government already realised and expected more revenue than was earlier on envisaged, and now needed the money through supplementary appropriation to urgently spend. The curious thing is: even if the state was making more money than earlier envisaged, why must it be the lot of the outgoing administration to spend it 13 days to the end of its tenure? But the Delta assembly obliged Okowa’s request for urgent consideration of the supplementary bill and passed it within 24 hours! The bill was read a second time on Wednesday and passed into law by the legislature, just 12 days to the end of Okowa’s tenure. It was one grand ticket to last-minute spending spree by the outgoing administration.

The Economic and Financial Crimes Commission (EFCC) was reported to have indicated to outgoing state governors that it was waiting in the wings to screen their financial records once their tenure, and by extension immunity, expires. The anti-graft body reportedly wrote in to some governors and their commissioners to come submit to investigation. Zamfara State Governor Bello Matawalle, who confirmed receipt of the agency’s letter, objected to what he considered a witch-hunt of governors and tasked the commission to beam its searchlight on federal officials as well. He’s absolutely right there. It will be interesting to see how accountability rites play out when the rites of exit conclude.

•Please join me on kayodeidowu.blogspot.be for conversation.