Nigeria: Presidential Election's Grand Finale Begins At Supreme Court Monday

The final legal battles over the disputed presidential election will begin on Monday, October 23, at the Supreme Court, following the listing of three separate appeals against the judgment of the presidential election tribunal, which affirmed the declaration of President Bola Tinubu, as winner of the February 25 election.

The three appeals pending before the apex court included that of the candidate of the Peoples Democratic Party (PDP), Atiku Abubakar; Peter Obi of the Labour Party (LP) and the Allied People’s Movement (APM).

This was as the Special Assistant on Public Communication to Atiku, Phrank Shaibu, has lambasted the President over his fresh attempt to block the release of the details of his criminal investigation by the United States Federal Bureau of Investigation (FBI).

A notice of hearing in the appeals issued to parties, dated October 19 and signed by one of the Supreme Court registrars, Zainab Garba, stated that the appeals hadbeen listed for hearing on the stated date.

While Atiku and his party listed 35 grounds upon which they were seeking the setting aside of the judgment of the Presidential Election Petition Court for erring on the side of law, Obi and the LP on the other hand presented 51 grounds of appeal.

The former vice-president had on September 18, registered his dissatisfaction against the judgment of the Presidential Election Petition Court, which on September 6, dismissed his joint petition with the PDP, for lacking merit.

The panel had in a unanimous decision held that Atiku as well as other petitioners against the February 25 presidential election were unable to substantiate their allegations against the poll conducted by the Independent National Electoral Commission (INEC).

Specifically, the panel led by Justice Haruna Tsammani, in their judgments held that, the documentary and oral evidences presented before them could not prove claims of irregularities, corrupt practices, and non-compliance amongst other claims for which Atiku had asked the court to void Tinubu’s election.

Dissatisfied, Atiku, who claimed that the lower tribunal erred in law in affirming the outcome of the February 25 poll, in his appeal amongst others, asked the Supreme Court to set aside the entire decision of the tribunal.

Atiku, in addition, prayed the apex court to after voiding Tinubu’s election, declare him as the authentic winner of the poll.

The former vice-president, who came second in the poll, claimed that he and not Tinubu won majority of the lawful votes cast at the election, but that the electoral umpire manipulated the process in favour of Tinubu.

Besides, he had on October 6, filed an application seeking leave of the apex court to bring in fresh and additional evidence of proof that Tinubu stood disqualified from the poll abi nitio, because he violated the Constitution, having allegedly presented forged certificate to INEC last year.

He had also in his reply on point of law, pleaded with the final court in the land to consider his application in the interest of the country and turned down Tinubu’s objection to the granting of the application.

In the Notice of Appeal dated September 18, and filed by his lead counsel, Chief Chris Uche, SAN, the former Vice President, submitted that the tribunal erred in law by not taking into cognisance the “Doctrine of Legitimate Expectation” regarding the failure of INEC to conduct the election in accordance with its own guidelines and the Electoral Act, 2022.

The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person.

In Nigeria, the doctrine of legitimate expectation demands that a public authority shall respect and apply its stated position or sustained practice in exercising its powers on members of the public.

Expatiating on this line of argument, Atiku told the apex court on ground seven that, “the lower court erred in law, when it failed to nullify the presidential election held on February 25, 2023 on the ground of noncompliance with the Electoral Act 2022, when by evidence before the Court, the 1st Respondent (INEC) conducted the election based on very grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the ‘doctrine of legitimate expectation.”

Pointing out that the Electoral Act 2022, made the use of Bi-modal Verification Accreditation System (BVAS) and INEC’s Results Viewing (IReV) portals mandatory in the conduct of the 2023 general elections, he added that, INEC through its Chairman, Professor Yakubu Mahmoud, publicly gave guarantees, undertakings, clear and unambiguous representations to candidates and political parties, that polling units results were mandatorily required to be electronically transmitted or transferred directly by the Presiding Officers.

He argued that, “There was no evidence before the lower Court that the 1st Respondent altered its aforesaid Guidelines and Regulations to remove the said requirement of electronic transmission of the results of the election directly from the polling units to the 1st Respondent’s Collation System.”

It was the submission of Atiku, therefore, that INEC “conducted the said presidential election based on the gross misrepresentation to the Appellants and the general voting public that the presiding officers were going to electronically transmit the results of the said election directly from the polling units to the 1st Respondent’s Collation System.

“Contrary to the above unambiguous representations, undertakings and guarantees, the 1st Respondent neither deployed the electronic transmission of election results nor the electronic collation system in the said election, sabotaging the ra/son d’etre for the enactment of the new Electoral Act 2022 and the introduction of the technological innovations.

“Rather than hold the 1st Respondent (INEC) as a public institution accountable to the representations that it made pursuant to its statutory and constitutional duties, which created legitimate expectation on the part of the Appellant’s, the lower court wrongly exonerated the 1st Respondent of any responsibility by holding that the use of the technological innovations to guarantee transparency was not mandatory.”

On similar grounds, Obi and the LP, in their appeal filed on September 19, by their lead counsel, Dr Livy Uzoukwu, SAN, alleged that the entire decision of the lower tribunal was “perverse” in its entirety except in the rulings in its favour.

The appellants told the apex court that, “The learned Justices of the court below erred in law and thereby reached a wrong conclusion, when they found and held they did not in their petition specify the particular polling units where the alleged irregularities and malpractices occurred, or specified the figures of the votes or scores which they alleged have been suppressed, deflated or inflated.”

The appellants submitted that the details of the polling units were contained in the spreadsheets and forensic analysis reports, which they had incorporated and made part of their pleadings by reference.

In another ground of the appeal, Obi and LP argued that the striking out of certain paragraphs of their petition by the court below amounted to a blatant denial of their right to fair hearing and occasioned a grave miscarriage of justice.

Consequently, the appellants argued that the tribunal was wrong when it struck out the witness statements on oath of 10 out of the 13 witnesses called by the petitioners on the ground that the statements were filed after the expiration of the period of 21 days prescribed by the Constitution.

According to Obi and LP, the decisions of the Supreme Court and the Court of Appeal, which the PEPC cited in support of their decision did not apply to the facts of the case they had presented, adding that, in coming to the above decision, the tribunal refused to follow its previous decisions in many cases, to the extent that a subpoenaed witness need not file his statement alongside the petition and any such statement filed after the time allowed for filing the petition was competent and valid.

Responding to the position of the tribunal that they didn’t call enough witnesses to prove allegations of corrupt practices and other irregularities, it was the claim by Obi and LP that the court below overlooked the fact that the petition ought to be read as a whole to discover the complaint or grouse of the appellants.

“The Court below failed to take into account that the Appellants listed the States and specific areas complained about in the Petition. The Appellants also tendered documents in satisfaction of Section 137 of the Electoral Act 2022,” they stated.

Further on the ruling by the tribunal that failure of the appellants to call witnesses from the polling units, wards or other places where irregularities andmalpractices were alleged to have occurred were fatal to their case, the appellants claimed that the issue of non-compliance by the INEC to its laws, guidelines and relevant statutes was a universal complaint because it was an infraction against the Nigerian people and the Nigerian state.

Addressing the issue of technology in the conduct of the 2023 general election, it was their submission that the tribunal erroneously overlooked the fact that the use of technology in the conduct of the poll was pivotal to the integrity/credibility and transparency of the election.

They, howeber, submitted that contrary to the decision of the tribunal, the use of BVAS to transmit the election results to IReV under the present legal regime governed by the Electoral Act 2022 was mandatory and not discretionary.

This, nonetheless, the APM on its part, sought the nullification of the tribunal’s decision based on its submission that the lower court misconceived the material facts before it when it struck out its undefended petition against Tinubu’s victory.

It prayed the apex court to hold that the withdrawal of Kabiru Masari from the race amounted to automatic withdrawal and invalidation of Tinubu’s candidacy in February 25 presidential election, adding also that the striking out of the 5th respondents (Kabiru Masari) from its petition and consequent dismissal of the petition on September 6, 2023 was in error, as Masari was a necessary party to the dispute.

“The grounds upon which its petition was predicated is that the 3rd respondent (Tinubu) was at the time of the election (February 25 2023) not qualified to contest the election in line with Section 134(1)(a) of the electoral Act, 2022,” the APM stated.

However, following the replies of all respondents in the different appeals as well as reply on point of law by the appellants, the cases have now been set for hearing on Monday.

By law, the apex court has 60 days to hear and deliver its judgment in the appeals. The 60 days, which commenced on September 18, when the notice of appeal was filed would lapse on November 16, 2023.

But whichever way the decision goes, it is certain to draw the final curtain on the 2023 presidential election.

Shaibu: Tinubu Wants to Stall Release of FBI Files

Ahead of this month’s planned release of documents by the United States Federal Bureau of Investigation (FBI) on President Bola Tinubu, former Vice President Atiku Abubakar’s Special Assistant on Public Communication, Phrank Shaibu, has lambasted the president over his fresh attempt to block the release of the details of his criminal investigation by American authorities.