Why It May Be Difficult For Ned To Become A Senator

PRE ELECTION CASES AND THE CRUCIAL SECTION 285 AS AMMENDED

All parties to pre election matters need to take heed,  for there is a far reaching  amendment to section 285 of the constitution, 4th Alteration Act Number 21 of 2017, which came into effect on June 7, 2018 .

Section 285 is a revolutionary provision in the body of our electoral laws. This amendment which aims at curring certain mischiefs in our politics has opened new vistas in our electoral jurisprudence, the full weight and implications of which we shall soon appreciate as judicial decisions unfold  in the coming days.

Just yesterday 3/4/2019,  Peter Nwaoboshi, PDP Senator elect for Delta north was sacked by the court in a pre election matter. Ned Nwoko was ordered to replace him as the duly nominated candidate of PDP. Expectedly, this matter would get to the Supreme court, and whatever decision therefrom shall be heavily founded on section 285 as amended.

Before then, two APC factions in Delta State have been at daggers drawn in a sweltering pre election disputation that has given rise to several FHC decisions. Both camps, Jones Erue and Ogodo have remained intransigent so far, and except a political solution is embraced, the party, APC stands the risk of some real casualty. If the Supreme court is allowed to put a final seal to this matter, section 285 will be crucial in deciding either way.

For ease of reference, the amendment to Section 285 of the Constitution,  provides as follows:

 (9) Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.
(10) A court in every pre-election matter shall deliver its judgment in writing within 180 days from the date of filing of the suit.
(11) An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against
(12) An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.
(13) An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election.

It is pointless here to mention any section of the extant Electoral Act supporting or opposing section 285 of the 1999 constitution as amended. This is because it is elementary that any other law, inclusive of provisions of the Electoral Act, remains null and void so long it is at logger heads with the constitution.

Already section 285 has been tested in recent supreme court decisions on pre election matters, going far back as 2015. Interestingly too, the Supreme court has decided that this provision which came into effect on June 7, 2018, should have retrospective effect. In other words , it affects pre elections matters  that arose even before it came into effect.

Two panels of the Supreme Court, headed by the acting Chief Justice of Nigeria , Justice Tanko Mohammed and Justice Bode Rhodes - Vivour , struck out each of the appeals, saying that the effect of the 4th Alteration was that all pre - election appeals that were either not commenced within 14 days of the arising of the cause of action or determined within the stipulated 60 days had become spent ( no longer valid ).

Justice Muhammad, while presiding over the first panel , explained that the Supreme Court had , in its judgements delivered on January 18 , 2019 , in the appeals marked, SC /307 /2018 and SC /308 / 2018 , held that the new constitutional provisions took immediate and retrospective effects on all pending pre - election cases .

One of the 14 appeals struck out on the basis of the new constitutional provision was one by Senator Umaru Dahiru , challenging the candidacy of Governor Aminu Tambuwal of Sokoto State in the 2015 election .

The court also struck out the appeal filed by Wahab Abiodun and four others against Senator Monsurat Jumoke Aduke Sunmonu and another .

Delivering judgements in two separate suits challenging the qualification of APC governorship candidates to contest the March 9 , 2019 election in Ogun and Adamawa states , Mr Dapo Abiodun and Governor Bindo Jibrilla , respectively, Justice Olukayode Adeniyi of the High Court of the Federal Capital Territory , in Apo , noted that the new constitutional provisions was meant to “ cure a mischief” .

“ Experiences of the facts , of which this court is entitled to take judicial notice , being notorious facts , are that pre - election matters , particularly relating to qualification and /or nomination of candidates for a particular election , in many instances protracts beyond the very election in question.

“ In some instances , courts continue to grapple with pre - election actions challenging the nomination of candidates to stand for election even after the elections had been conducted , won and lost .

“ In some other instances, pre - election matters outlast the tenure of candidates that won the election .

“ It is the view of this court , therefore , that it is in order to prevent the recurrence of these ridiculous and embarrassing situations , which have caused chaotic and needless distractions for elected officers from performing the functions for which they are elected .

It was this that precipitated the insertion of Section 285 ( 9) into the Constitution, in order to ensure that all pre - election matters are disposed of timeosly ."

Another very important function of s. 285 is that it cured the michief in Amaechi's case. So that, no longer shall a man reap where he did not sow. See sub (13) supra.

The take home lessons are clear: if you are a pre election litigant, and you did not file your suit 14 days from when the cause of action  arose, your suit is a nullity ab initio. You are wasting time and resources as it will not survive the Supreme court.

Two, if you are an aspirant in a political party  and you did not participate in ALL THE STAGES of the election, even if your rival at the primaries is sacked after the election as not being the duly nominated candidate of your party, you cannot step in as the beneficiary. That is, Amaechi's precedent can no longer avail you.

We await with bated breath more practical legal applications by the Supreme Court ,of this robust constitutional intervention in our politics.

From this article above, Ned Nwoko can never become a Senator in the coming 9th Assembly. Never!