By William Jumbo
Why?
It is not ethical to discuss pending issues in court. However, the barrage of recent misleading, fallacious, defamatory, frivolous reports being fed the public by the deregistered Liberation Movement and its candidate, Vijah Opuama, and their sponsors in All Progressives Congress (APC) led by Chief Timipre Sylva and Timi Alaibe, an opposition chief in Peoples Democratic Party (PDP), are calculated to whip sentiments against the PDP, Governor Douye Diri, and his deputy, Sen. Lawrence Ewhrujakpo. Clearly, these tissue of lies are primed to mislead the tribunal into making a perverse judgement and misinform the public to believing that they have a viable and strong petition at the tribunal.
This, including the need to put the issues in perspective - as well as stop a lie which if been repeatedly told might become garbed as the truth- necessitated this piece to state the facts as they are.
To begin with, the Nigerian Constitution and Electoral Act clearly listed those who can be parties to an election petition. Also, the powers of an election tribunal are clearly defined. Election tribunals have no constitutional powers to deal with pre-election matters. These are matters to be determined by High Courts. In the case of Atiku Abubakar vs Muhammadu Buhari, the Supreme Court stated unequivocally that issues bordering on supplying false information in form CF 001 are issues of pre-election and should be determined by High Courts before the elections and not election tribunals.
Even at that there's a time frame that such a matter can be heard.
Early May, in the case of Musa Wada & others, Justice Ngwuta of the Supreme Court reiterated that by Section 31 of the Electoral Act, anybody challenging the presentation of false information in form CF 001 has 14 days within which to file an action challenging the qualification of the candidate for providing false information.
Therefore, bringing issues of alleged presentation of false certificate before an election tribunal is clearly an exercise in futility as this clearly is a pre-election matter, and tribunals are not empowered to deal with pre-election matters.
Similarly, in the unreported case of Jeremiah Useni vs INEC and Simon Lalong where the petitioner alleged that Lalong had several conflicting names is a case in point.
General Useni listed Lalong's name as follows; school certificate Sule Simon. IJMB A'Level Certificate Simon Lalong. ABU law certificate Simon Lalong Sule, and 1991 call to Bar certificate Simon Lalong Sule.
He further listed NYSC discharge certificate Sule Simon Lalong; Affidavit of change of name from Sule Simon Lalong to Lalong Simon Lalong Bako; Change of name in newspaper from Simon Lalong Sule to Simon Bako Lalong, LLM Unijos degree Bako Simon Lalong; and MBA practice licence Lalong Simon Bako.
As damaging as Lalong's case appeared- in comparison to the case of Bayelsa State deputy governor which, without conceding, is a spelling error, the election petition tribunal, the Court of Appeal, and the Supreme Court as per Paul Galunje JSC held that in so long as the issue relate to affidavits and information in form CF 001, General Useni's petition cannot be determined by a tribunal as it had become statue barred. That, since all the information on Lalong were published before the Plateau governorship election, the petitioner and his witnesses, especially a certain Mr. Yaba Kudu who testified as to the content of Lalong's form CF 001 can no longer be heard.
Also, it is pertinent to state that for an allegation of false information and forgery to warrant a disqualification of a candidate in an election, either pre or post, it must be made with the intention of aiding the qualification of the candidate presenting the information or document. The question then is, (a) Is NYSC certificate one of the requisite qualifications for contesting elections in Nigeria by virtue of Sections 177, 186, and 187 of the Nigerian Constitution? The answer is No.
Therefore, all the noise about alleged forgery of NYSC certificate, and false information is just cheap media blackmail by Opuama and his sponsors. Such cannot in any way affect the chances of any governor or his deputy.
For the purposes of reminding those who may have been carried away, the conditions to be met by a person seeking election as governor or deputy governor known to the Constitution and Electoral Act are four. They are
(a) The person must be a citizen of Nigeria by birth.
(b) Must have attained the age of 35 as at the time of the election
(c) is a member of a political party, and
(d) has been educated up to at least school certificate level or its equivalent.
From the above, has it been proven by the deregistered Liberation Movement, Opuama & Chiefs Sylva and Alaibe, that the deputy governor of Bayelsa State who hails from Ofoni in Sagbama LGA of Bayelsa State, is not a Nigerian by birth; has not attained the age of 35 at the time of the senatorial and gubernatorial elections having obtained his first primary school in 1976;/and does not belong to a political party having been sponsored by PDP in both elections, and that he's not educated to school certificate having obtained both school leaving cat and WAEC certificates?
Even from the averment of the petitioner and his several misleading publications, Opuama admitted that the deputy governor possesses all of the foregoing. And since the allegation of forgery of NYSC certificate and age declaration as well as degree certificate, without conceding, are not aimed at aiding his qualification which he already posses, no tribunal or court can validly disqualify his election. This is the position of the law, especially in the case of Ikpeazu vs Ogar in 2017. This was reiterated in the Useni VS INEC & Simon Lalong case.
Another reason the Liberation Movement's petition is dead on arrival is that the Nigerian Constitution does not recognize independent candidates. Membership and sponsorship by a valid and legal political party is a prerequisite for any candidate to participate in an election and file an election petition. Any election petition filed without the inclusion of the sponsoring political party is a nullity and dead on arrival.
An unregistered political party, to the extent of its nonregistration, is not a juristic person that can acquire rights or incur liability. Sadly for Vijah Opuama, Liberation Movement is one of the political parties deregistered by the Independent National Electoral Commission (INEC). On the INEC website, Liberation Movement is number 33 on the list of deregistered political parties. Apparently aware that Liberation Movement is no longer a political party, Opuama whilst filing his petition failed to include his party Liberation Movement as a party to the petition. Sources close to the defunct party say they're worried that the respondents have through preliminary objection raised the issues, the competence of the petition, and want the petition dismissed.
If, as gathered, it is true that these objections have been adopted and ruling reserved, the implication is that the matter is closed before the tribunal and can never be opened. But for the 4th alteration which now allows election petitions to run their full course, and not be solely determined by preliminary objection, this Liberation Movement petition ought to have been dismissed and thrown out.
Therefore, Sylva, Alaibe and others who are sinking monies in this so-called Liberation Movement bride with the sole aim of having triplets should know that their bride has been certified barren and therefore incapable of bearing children.
Even at that, a deputy governorship candidate isn't a necessary party in an election petition. Thus, if the Liberation Movement, its candidate, and their sponsors think they can succeed on this petition through maligning, defaming and ridiculing the Deputy governor, they should know that they're on an illegal wild goose chase that is certain to end in futility
A further reason why this LM's candidate's petition is dead on arrival is that election petitions are suis generis. That is, it is unique or has a life of its own. There's a stipulated time frame within which a petition can be amended. That is 21 days. There are a plethora of cases where both the Supreme Court and Court of Appeal have held that election petitions cannot be amended. Olushola Oke and another vs Mimiko and others is a typical example where the Supreme court held that election petition amendment is strictly regulated and cannot be amended outside of the prescribed 21-day period window for amendment.
Curiously, after the deputy governor's preliminary objection to Opuama's petition on the ground that his party wasn't joined as a party to his suit, and the tribunal adjourned ruling, Opuama having realized the futility and nullity of his petition has asked his deregistered party, Liberation Movement to join the petition.
That this application came long after the whole hullabaloo of subpoenaing the deputy governor, the attendant negative backlash, and reservation of ruling, clearly shows that the non-joinder of Opuama's political party from the beginning makes his petition incompetent. Also, seeking to amend his petition after the mandatory 21 days after filing, shows that he's just realized that he had all the while been engaging in media trial, and that his petition stands no chance. Most sadly, this is an attempt to carry a baby already aborted to term.
Therefore, in law and in fact, it is crystal clear that Opuama and his sponsors do not actually have any competent case before the tribunal. The reason being that their petition was from the onset incompetent. You cannot amend an election petition after 21 days, just as you cannot reopen a case that's been closed and adjourned for judgement. To seek the leave of the tribunal to join Liberation Movement after the tribunal has heared the preliminary objection of the respondent drawing attention to the non-,joinder of Liberation Movement from the outset negates and violates the requirement of a political party as a necessary part of an election.
4. Equally, the Liberation Movement and Opuama's petition is dead on arrival because, by their own action, he and his party have reinforced the argument of the respondent that he cannot succeed in his petition without making Liberation Movement party to the petition. This is because their filing of application for joinder after the respondent had raised the illegality of their petition clearly shows that they've admitted that their petition is incompetent and the tribunal needs to take note of this admittance by Opuama and his party.
It is obvious that had the respondent not raised the matter, Opuama would not have stumbled on this afterthought to raise this frivolous deceitful application of joinder.
The so-called subpoena issued on the deputy governor that has made sensational headlines is again an exercise in futility based on the following.
First, an election petitioner can only subpoena witnesses listed to be subpoenaed by him. The petitioner never listed the 4th respondent who is the deputy governor of Bayelsa State as one of his witnesses. Therefore, they're estopelled from subpoenaing him.
Secondly, a tribunal or a court cannot subpoena a party that's already before it. As fourth respondent, the deputy governor is already before the court and has deposed to averments that are already before the court. Subpoenas are issued to witnesses who are not before the court and whose testimonies are required. Thus, it is both morally and legally wrong to subpoena the 4th respondent who you've already brought to court by virtue of your petition.
Thirdly, no party makes an adversary its own witness. The evidence act prohibits making an accused or adversary a witness to his accuser. Their intention is to malign the deputy governor hence they've decided to subpeon him when he is already a party before the court as a respondent and their case is against him. It is settled law that a plaintiff's case must succeed on the strength of his ability to prove all the allegations beyond reasonable doubt, especially when there is an imputation of crime, and not on the weakness of the defence case even where evidences are admitted by the defendant.
The subpoenaing of the deputy governor clearly shows that the plaintiff Opuama and his party cannot prove their case beyond reasonable doubt on the strength of their own case. And where a party by its own act has shown that it cannot prove its case beyond reasonable doubt, the court or tribunal is left with no other alternative but to dismiss the case of the plaintiff and not to aid it by subpoening the defendant to become witness to help a plaintiff prove his case.
It is immoral and illegal to subpoena a deputy governor who has to defend himself to help them prove their case. The law is that he who asserts must prove. Equally, no person can be a respondent and at the same time a witness in the same suit.. It is clearly an exhibition of legal neophancy to make the deputy governor a respondent and a witness to the plaintiff.
Therefore, Nigerians and the whole world of morally right people should know that Opuama and his sponsors, Alaibe and Sylva do not have any proof of their allegations of alleged forgery by the deputy governor.
More worrisome is that the same Opuama has subpoenaed the NYSC to testify to the authenticity of the deputy governor's NYSC exemption certificate. Being the issuing authority, NYSC is the only authentic and qualified legal witness that can certify the authenticity or otherwise of the certificate in question, and not the deputy governor who is being accused of forging it. He will only produce the same forged document which they are contesting and not the authentic one they claimed was issued by NYSC.
Equally, can the deputy governor be subpoenaed by virtue of section 308 of the Constitution of the country which confers immunity on him? The tribunal should not be misled into trampling on the Constitution as the summons clearly purports.
Furthermore, subpoenas are supposed to be personal service. However, from what has been awash in the media there is no evidence that the subpoena was personally served on the deputy governor. What was portrayed in the media was that an administrative officer in Government House, Yenagoa, received the subpoena. Does that amount to personal service as required by the law? If the answer is in the negative, which is it, of course, then it is clear there was no subpoena served on the deputy governor warranting him to appear before the tribunal.
Similarly, Opuama and his sponsors have made a lot of noise about the deputy governor's degree certificate issued by Rivers State University of Science and Technology, RSUST. It is an established moral fact that a man who speaks from both sides of the mouth cannot be taken to be speaking the truth. Opuama had in an earlier publication claimed that the deputy governor's name is not on the list of admission into the university. The same Opuama is now again claiming that the deputy governor having been admitted in 1991 ought to have graduated in 1994/95 because he was admitted for a four-year programme. The question is, which of his claims should be believed?
Is it the claim that he was not admitted, or the one that he was admitted in 1991 and ought to have graduated in 1994/95?
First, there's no law that stipulates that a student must graduate within a time frame set for a particular course and that if he fails to graduate within the said period, whatever certificate he obtains is invalid and forged.
Secondly, Opuama haven been a toddler at the time, he does not know that academic calendars were largely disrupted between 1992 and 1994 as a result of several ASUU strikes and the June 12 1993 election annulment imbroglio that led to the lockdown of several universities, just like we are currently locked down as a result of the COVID-19 pandemic.
Nigerians should be informed that the deputy governor was admitted for a five-year programme, not a fou-years programe.. His academic records are still with RSUST, and any person who is in doubt is free to write to the institution to obtain the records of his grades in each of the courses he offered during his years of study. Furthermore, Nigerians need to informed that the deputy governor was admitted into the same RUST in 1998 to read an MBA programme and graduated with a distinction. Equally, he was readmitted into the same RUST to read a law degree and also graduated from the sane university. Based on the above, Opuama as the chief blackmailer is purporting that a university of repute such as RUST will issue one person three different certificates if the person did not have the requisite qualifications and merited the award of such degree certificates.
Again, it is only the RUST authorities and not the uninformed Opuama and his sponsors that can say the said certificate is authentic or not.
Finally, there are unconfirmed reports that the NYSC have written certain security agencies who were mandated to investigate the so-called forged NYSC certificate. It is my belief and candid opinion that if the allegations of forgery levelled against the deputy governor as being rumoured were true, the security
agencies would have made their findings of forgery against the deputy governor known,fully aware that some APC chieftains have been infusing some of these security agencies to return a verdict of guilt against the deputy governor.
Matters pending in court are not issues of media propaganda which is the stock in trade of Opuama's sponsors. It will do him a lot of good as a petitioner to focus on the trial inside the tribunal rather than this media trial which his sponsors Chiefs Sylva and Alaibe are helping him do as it the one who wins the war that is the ultimate hero, not the person who wins the battle.
From the foregoing, any discerning mind should know, and now know if they do not already know, that Opuama's petition is not only a storm in a tea cup, but dead on arrival.
Though I'm not a lawyer by training, but I'm only trying to make some legal common sense.
Jumbo writes from Warri
