A Desktop Review of The Election Petition Filed by Peter Obi And Labour Party Against Bola Tinubu And The (APC) As The Winner of The 25TH February 2023 Presidential Election
By Prof. Clement C. Chigbo
1.1 INTRODUCTION
It has been variously observed that the threefold duties of academics are teaching, research and community service. The 2023 elections for the office of the President of the Federal Republic of Nigeria, Governorship of the States of the federation, Members of the National Assembly and State Houses of Assembly have ended.
The 2023 Presidential, Governorship, National Assembly and State Houses of Assembly elections reflect the choices of the electorate in Nigeria.
Article 21 (3) of the Universal Declaration of Human Right (UDHR) states that; “the will of the people shall be the basis of authority of the government and that this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”.
Elections are legitimate democratic process by which the electorate are given the power to elect leaders who share their yearnings and aspirations amidst divergent choices.
In the just concluded Presidential election of 2023 in Nigeria, Mr. Bola Ahmed Tinubu of the All Progressive Congress (APC) was returned and declared winner after he polled a total 8, 794,726 votes accounting for 37% of the total valid votes cast.
The results of the election are presently being contested in court by the candidate of the Labour Party, Mr. Peter Obi and the People’s Democratic Party Alhaji Atiku Abubakar. The more provocative and contentious challenge is the petition before the Court of Appeal mounted by Mr. Peter Obi of the Labour Party.
It is the right of the persons who feel aggrieve by the result of the election to file suits before the Election Petition Tribunal and follow them up to the appellate stage and final and apex Supreme Court.
It is in the light of the foregoing that this discourse seeks to examine the issues involved in this petition and the prospects or chances of this petition pending before the Presidential Election Petition Tribunal (PEPT).
By virtue of section 239 of the Constitution of the Federal Repblic of Nigeria 1999 (as amended), original jurisdiction has been vested with the Court of Appeal to handle petitions’ emanating or arising from the Presidential election of 2023.
Section 239 (1) provides that;
239.-Subject to the provisions of this constitution, the Court of Appeal shall, to the exclusion of any other Court of law in Nigeria, have original jurisdiction to hear and determine any question as to whether
(a) any person has been validly elected to the office of President or Vice –President under this Constitution; or
(b) the term of office of the President or Vice President has ceased; or
(c) the office of President or Vice President has become vacant…..etc.
Thus, the Nigeria’s Court of Appeal as far as the Presidential Election Petitions are concerned sits as the Presidential Election Petition Tribunal, and as a Court of first instance for that matter.
This discourse adopts a purely jurisprudential approach, meaning that the writer will examine the petition purely from a legal point of view.
In this regard, the discourse will address the nature and scope of the petition, the grounds of the petition, the substance of the petition, the case of the parties and their chances of success.
The discourse will also proffer suggestions for INEC and the Nigeria Judiciary in the conduct and adjudication of electoral matters.
The write up concludes with the view of the writer on the likely outcome of Mr. Obi’s and his Labour party’s petition. We will examine the matter seriatim.
1.2 THE PETITION
The Presidential candidate of the Labour Party, Mr. Peter Gregory Obi who lost in the Presidential election of 25th February 2023, has filed a petition at the Presidential Election Petition Tribunal to challenge the outcome of the election result pursuant to the aforesaid election. Mr. Obi and his Labour Party are seeking the nullification of the presidential election result.
The petitioners are pursuing their reliefs against four named respondents, namely, Independent Electoral Commission (INEC) as the first respondent, Asiwaju Bola Ahmed Tinubu as the second respondent, Kashim Shettima Mustapha as the third respondent and the (APC) as the fourth respondent.
This means that any decision of the tribunal will affect the parties in the petition. As previously mentioned, the Court of Appeal is the appropriate Court seised with the requisite jurisdiction to entertain and adjudicate matters relating to the Presidential election in Nigeria as a court of first instance.
Appeals from the presidential election tribunal will lie at the Supreme Court of Nigeria, which is the court of final appellate jurisdiction for the presidential elections and all civil and criminal matters in Nigeria.
The subject matter of the petition is the office of the President of the Federal Republic of Nigeria. The gravamen of the petition is that Mr. Obi and his Labour Party are challenging the validity and propriety of the declaration of Mr. Tinubu and the (APC) as the winner of the said Presidential election of February 25th 2023.
The petitioners’ hinged their petition on three substantive grounds –viz- (i) that the second respondent, Bola Tinubu was at the time of the election not qualified to contest the election; (ii) that the election of the second respondent was invalid by reason of corrupt practices or non- compliance with the provision of the Electoral Act 2022; (iii) and that the second respondent was not elected by the majority of the lawful votes cast at the election.
The petitioners made several averments in support of the three distilled grounds of the petition and they are seeking five substantive reliefs in this petition pursuant to the aforesaid grounds.
As for the first ground, the petitioners ought to have challenge the eligibility of the second respondent before the election instead of allowing him to run and contest for the said Presidential election as the court can rightly hold that this issue of eligibility or qualification to run in the aforesaid election is a pre-election matter and as such, is non-justiceable matter after the election has been duly conducted.
It is my humble opinion that this is pre-election issue or matter and that the court lacks jurisdiction to entertain this matter after the second respondent has gone through the entire electoral process.
If the petitioners knew that at the time of election, that the second respondent was not qualified or eligible to contest the election, why did they not challenge him at the relevant time?
The same goes for the averment that the 3rd respondent Kashim Shettima Mustapha was not eligible to run for the office of the Vice President, in that while still being a senatorial candidate for Bornu Central Constituency, that he knowingly allows himself to be nominated ………. Again, without going into details, this is a pre-election matter that ought to have been litigated before the election if indeed the first petitioner is acting in good faith.
Furthermore, the petitioners’ raise the issue that Asiwaju Bola Tinubu was as at the time of the election not qualified to contest the said election to the office of the President as “he was fined the sum of Four Hundred and Sixty Thousand United State dollar (S 460,000) for an offence involving dishonesty, namely narcotics trafficking imposed by the United State District Court, Northern District, Illinois, Instant Division in Case No. 93C 4483”.
This writer has meticulously perused the excerpts from the above mentioned document in support of the petitioners’ averment. This document does not disclose on the face of it that Bola Tinubu was ever a party in this case or was ever ‘indicted’ or ‘prosecuted’ let alone ‘convicted’ by any court in the United State of America for any drug related offence. Rather, the United State in this case, “attacked” and “interdicted” funds found in the bank account belonging to Bola Tinubu.
There was no indictment or criminal proceeding against Bola Tinubu, instead, the forfeiture proceeding was against Funds founds in the bank account belonging to Bola Tinubu.
We are all aware that in all common law jurisdictions that a criminal case is usually instituted by the Government or State or through it appropriate agencies e.g. Attorney General v The accused, Commissioner of police v The accused, NDLEA v The accused, FGN v the accused, USA v The defendant etc. However, in this instant case, the petitioners have only disclosed a document intituled “United State of America as the Plaintiffs v Funds in the Account 26322700 Held by First Heritage Bank in the Name of Bola Tinubu etc.”
Other funds were equally attacked and interdicted in this forfeiture proceeding that did not end in a conviction or sentence of any person whom so ever.
The apposite question we should be asking is; why did the United State not bring any proceeding or criminal prosecution against Bola Tinubu if they had a prima facie case against him at the material time?.
This kind of forfeiture proceeding is not uncommon in progressive jurisdictions like the U.S, U.K, Canada and Australia etc… especially in dealing with trust funds or other funds with fiduciary or asset protection component, wherever they raise a red flag bothering on suspicion of illicit origin.
The United States Government normally use this kind of proceedings against those who they suspect may be laundering or concealing funds for Columbian or South American suspected drug dealers.
Suffice it to say that this does not amount to any criminal prosecution against an alleged account holder in the circumstance.
The inexorable corollary of this is that owing to obvious wants of evidence, the United States Government was unable to prosecute Bola Tinubu the account holder, albeit that there are concerns that the funds found in his account may be tainted with some illegality or could be part of proceeds of crime, and as such, the funds were thereby sequestrated, confiscated seized or forfeited.
Recall that trust funds can be trace even beyond the range of actual identification once it is found in any account and there is suspicion to that effect.
It is important to state here that Asiwaju Bola Tinubu as a human person is not “FUNDS IN ACCOUNT 263226700 HELD BY FIRST HERITAGE BANK” neither is Bola Tinubu “FUNDS IN ACCOUNT HELD BY CITY BANK IN THE NAME OF BOLA TINUBU OR COMPASS FINANCE AND INVESTMENT CO.”
Again, it is crucial to underscore the point that Asiwaju Bola Tinubu was not a defendant in any criminal prosecution in the USA and by the United State of America acting as the prosecutor so as to qualify as a criminal proceeding against him at the end of which a verdict of conviction (guilty verdict or acquittal) was returned.
Again, if the United State had at the material time a prima facie case and cogent and compiling evidence of involvement in narcotic trafficking against Bola Tinubu, they would have arrested him, indicted him, and prosecuted him but there was no such arrest, indictment, prosecution and conviction of Bola Tinubu for drug trafficking offences in the United State.
This is quite factual and there is no need to cite a trailer load of cases as some senior lawyers are casuistically and disingenuously doing about this petition. A criminal case in the United State does not have as parties, “Plaintiff v Defendant” to say the least.
There was no mens rea (blame worthy state of mind) and there was no actus reaus (physical act borne out of rational motivation) and thus, the two ingredients of criminal culpability are lacking in the case the petitioners’ are relying upon to support their averment in their petition that, “the second respondent being Bola Tinubu was also at the time of election not qualified to contest for election to the office of the President as he was fined S 460,000 for an offence involving dishonesty, namely narcotic trafficking imposed by the United State District Court” etc.
As there can be no imposition of fine as a sentence without trial or prosecution, and as there was no mention of “fine in the sum of S 460,000USD for an offence involving dishonesty, namely narcotic trafficking” in the forfeiture proceeding document which the petitioners’ are relying upon to buttress and substantiate their petition, one is inclined to ask the question, -where then did the petitioners’ obtain or extrapolate this phrase in quote? This is merely a juristic casuistry and a specious averment intended to mislead the Court.
This writer will rest his submission on this aspect of the petition here. And this writer does not see the need to cite a litany of cases here. The fact speaks for itself.
The writer advises every reader to peruse the forfeiture proceeding document and controvert the writer; [ See case No. 93 C 4483: See paragraph 29 of the petitioners’ Averments which embodied the order of Judge John A Nordberg. Dated October 4, 1993 at page 3]. See particularly para 29, 30,31(a), (b) (C). All the orders made herein was about forfeiture funds and which the Judge declared to represent “the proceeds of narcotics trafficking or were involved in financial transactions in violation of 18 U.S.C e t c.
A decree of forfeiture is not a conviction emanating from a trial and the funds were suspected to be proceeds of drug trafficking or financing transaction in violation of 18 U.S.C etc.
Suffice it to say here that this is not based on any grand jury indictment or criminal prosecution leading to conviction and eventual sentence of Bola Tinubu for narcotic trafficking.
If this were to be a corollary of indictment, trial, conviction and sentence, the entire account would have been frozen or forfeited. It was even clearly stated in the order that “the funds remaining in the account shall be release to K.O Tinubu”; thus, indicating that it was the funds suspected to be proceeds of narcotic trafficking that was attack or targeted and not the beneficial owner of the account.
Perhaps, the question may be ask as to how did this funds get into Tinubu’s account but that would have been a case for the U.S to prosecute, if the U.S authority had been able to link Tinubu “with any offence of narcotics trafficking involving dishonesty”, as being alleged by the petitioners’ in their averment. See paragraph 30 of the petitioners’ averments.
Therefore, the document they are relying upon goes to no issue in establishing that Bola Tinubu was ever convicted by the United State Court for “any offence of narcotic trafficking involving the offence of dishonesty” in terms of their grounds of petition and their factual matrix in support of that ground. See paragraph 31 and the three documents the petitioner’s pleaded and relied upon and thus their averments in paragraph 30-32 cannot be validly sustained.
The petitioner’s further alleged in ground two that the election of Bola Tinubu was invalid by reason of corrupt practice or non- compliance with the provisions of The Election Act 2022.
The substance of this grounds principally borders on non-compliance with the Election Act 2022 and the basis of this non-compliance, according to the petitioners, is that the 1st Respondent/ INEC failed to deploy technical devices for the accreditation, verification, confirmation and authentication of voters and their particulars; and that this was in violation of the Regulations of the INEC: more specifically, this allegation seeks to argue that the BVAS and other devices were not effectively deployed e.g. for transmitting the election results from various polling units directly to the collation system of the INEC and that the BVAS was not effectively deployed by the presiding officer to upload scanned copies to the INEC Result View Portal (IREV) in real time.
The facts remains that no election in any country in the world commands clinical precision and exactitude. We cannot exclude the possibility that there might have been failure of this devices to function or perform optimally owing to technical glitches but this was not exceptionally prejudicial to the petitioners’ results in the Presidential election and this would have affected all the parties/ contestants.
If the petitioners’ are alleging that INEC failed to electronically transmit the results of the polling unit directly to the collation system as prescribed by the INEC regulations, how then did they obtain the valid votes in various units and states where they won?
It might as well be that there is some substance in the petitioners’ averments in this instant ground. But the onus is on the petitioners to substantiate these averments by showing that this failure “to electronically transmit the results of the polling unit directly to the collation system as prescribed by the INEC regulations” occasioned a substantial miscarriage of Justice to them such that it deprived them the chances of winning the said Presidential election.
Putting it another way, the onus is on petitioner’s to prove that the failure on the part of the INEC to upload the results of the Presidential election held in the various polling units as at the time of the purported declaration of the second respondent as the winner of the Presidential election, gave room for manipulation of the said results by the officials of the INEC; and that this failure caused a substantial deprivation of votes to the petitioner, which if not for the allege failure and manipulation, would have led to the petitioner being returned and declared as the winner of the said Presidential election held on the 25th February 2023.
Thus, in this regard, the petitioners need to prove this with sufficient particularity and specificity at least on a balance of probabilities.
The petitioners’ in their ground three aver that the second respondent, Bola Tinubu was not duly elected by the majority of the lawful votes cast at the election.
The factual matrix in support of this ground can be found in paragraph 80 and 81 of their petition and this seems to be the most controversial ground in their petition.
The said paragraph aver that “a candidate shall be declared a winner only if he obtained the highest number of votes cast at the election and he has not less than one quarter of votes cast at the election in each of at least two –thirds of all the state in the Federation and the Federal Capital Territory Abuja etc…..”
The petitioners contend that Bola Tinubu, besides not scoring the majority of the lawful votes cast at the election, did not obtain at least one quarter of the votes in the FCT, Abuja ought not to have been declared and returned as the winner of the said Presidential election. Leaving the first limb of this averment aside, the issue of the status of the FCT, Abuja ought to be addressed robustly. This endeavor will engage sections 133, 134 and 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
More specifically, section 134 (1) (a)(b) provides as follows;
“A candidate for an election to the office of the President shall be deemed to have been duly elected, where, there being only two candidates for the election-
(a) he has the majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja”.
Suffice it to say that section 134 subsection 2 (a) and (b) recast the same provision except that this part of the section relates to where there are more than two candidates for the election; the first one relates to where there are only two candidates for the election.
As for the geo-political status of the FCT, Abuja in Nigeria, section 299 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) explicitly states that:
“The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation”.
Therefore, a conjunctive reading and construction of section 134 (1) (a)-(b), (2) (a) – (b) and section 299 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) stated clearly and precisely that “a candidate shall be deemed to have being duly elected if he has the highest number of votes cast at the election” and “he also has not less than one-quarter of the votes cast at the election in each of at least two thirds of all the State in the Federation and the Federal Capital Territory, Abuja”, which in terms of section 299, (FCT Abuja) is to be included ‘as if it were one of the states of the Federation’.
In the premises, there can be no doubt about it that the FCT, Abuja is akin to the 37 states of the Federation in the context of our electoral and democratic process or any other geo-political or socio-economic affairs for that matter.
Although the FCT, Abuja is the seat of power and the Federal Capital of the Federal Republic of Nigeria, however, this does not in any way elevate FCT, Abuja to any exceptional status for electoral or voting purposes.
The constitution of the Federal Republic of Nigeria 1999 (as amended) does not confer any electoral or demographic sacrosanctity on FCT, Abuja, necessitating that a candidate must win in the FCT, Abuja in other to be returned or declared as the winner of the Presidential election in Nigeria.
It should be well noted that FCT, Abuja is just like any other geographical entity like a state which in the context of the provision of section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is an electoral district for that matter.
This writer thinks that it will be most ludicrous, preposterous, pedestrian, casuistic and disingenuous for anyone to maintain that section 134(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes it mandatory for a successful candidate for election into the office of the President to score 25% of 2/3 of 36 states, which is equal 24 states, in addition to specifically and separately scoring 25% of the total votes cast in the FCT, Abuja. Such an argument is manifestly absurd, repugnant and contrary to reason, common sense and logic.
This writer does not wish to join issues here with Mr. Mike Ozekhome a noted Senior Advocate of Nigeria who went to the extent of providing us with arithmetic calculation and mathematical computation formula in addition to entertaining us with a multitude of cases to support his view that the preposition “AND” in section 134 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) should be construed as disjunctive and not conjunctive. “This writer does not engage in community reading.”
Thus, the argument that since Bola Tinubu did not score up to 25% of the total votes cast in the FCT, Abuja, and that he did not fulfill the constitutional requirements and ought not to have been declared and returned as the winner of the said election, is casuistic, disingenuous, specious, spurious and misleadingly attractive in appearance.
Again, it is the position of this writer that it is axiomatic, trite, and beyond any cavil or peradventure that by virtue of section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), FCT, Abuja is granted the status of a state in the Federation of Nigeria. Therefore, to that extent, for the purposes of section 134 (2) (b) of the said Constitution, FCT, Abuja is to be treated as the 37th state of the Federation.
Thus, Bola Tinubu has met the requisite constitutional requirement to be returned and declared as the winner of the Presidential election in Nigeria held on of February 25th 2023, in the above context.
It is also important to state here that the framers of the 1999 Nigeria Constitution (as amended) could not have intended that the FCT, Abuja shall be treated as a crucial or an indispensable requirement before a candidate can be declared a winner in a Presidential election.
If it were to be otherwise they would have expressly stated such a far reaching requirements in a clear and specific black letter provision in the constitution. Besides, to interpret the section 134 (1) (b) and (2)(b) as some of these Senior Advocates of Nigeria are arguing will lead to manifest absurdity and unreasonableness.
Furthermore, there is no country in the world that operates such a constitution that requires the holder of the highest political office in the country to win an election in the country’s capital as core requirement for that office. Our constitution is to a large extent transplanted from the U.S constitution albeit with some modifications to suit our Presidential system of government.
This writer is inclined to ask a question; – in the United States, does a President need to win in Washington DC in other to be returned and declared as a President- elect in an election? Among all the countries that operate our type of presidential system of government and other countries in the world, there’s nowhere in the world a candidate for the highest political office is required to win in their capital city.
Some commentators have vociferously argued that the FCT, Abuja is the melting pot and the epitome of a cosmopolitan city in Nigeria. This argument is somewhat untenable, facile and vacuous. Much as FCT, Abuja is a cosmopolitan city and a melting pot in Nigeria, however, most Nigerian cities command this feature of cosmopolitanism.
Is FCT, Abuja more cosmopolitan and more of a melting pot than Lagos? Even cities like Kano, Kaduna, Port Harcourt and Ibadan are equally cosmopolitan just as FCT, Abuja. Thus, Abuja should be treated as one of the core geographical entities in Nigeria just like one of the states in the Federation which a Presidential candidate should be required to win in terms of the provisions of section 299 and 134.
This writer does not wish to dwell on the well noted canons of interpretation.
However, it appears that some Senior Advocates of Nigeria are using the literal rule of interpretation to arrive at their opinion that “the preposition “AND” in section 134 (2)(b) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) should be construed as disjunctive and not conjunctive”.
Modern judicial approach to constitutional and statutory interpretation tends to avoid literal rule of interpretation because this line of interpretation is usually based on excessive formalism, tabulated legalism and dogmatic rigidity which does not advance the cause of justice in a progressive society.
One writer has argued and this instant writer is inclined to align himself with his line of reasoning that beyond the provision of section 299 of the constitution of the Federal Republic of Nigeria 1999 (as amended), that even on a literal mischief rule of construction, it is inconceivable that the drafters of the Nigerian 1999 Constitution could have contemplated that the FCT, Abuja would be given a higher status than other states in the Federation.
As previously adumbrated a conjunctive, purposive and teleological reading and interpretation or construction of section 299 and 134(2)(b) of the Constitution of the Federal Republic of Nigeria 1999, (as amended), would reveal that the most reasonable and appropriate interpretation is that FCT, Abuja is the 37th state for this purpose.
Authorities are legion in support of the above proposition. See for example; Gani Fawehinmi v Babangida & Anor (2003) LPELR-1255(SC); Bakari v Ogundipe (2021) 5NWLR (PT.1763) 1 SC; Baba-panya v President, FRN (2012) 15 NWLR (PT. 1643) 423.
One last question that is apposite here is this; if a Presidential candidate wins in 30 state of the Federation but fails to win in Abuja, does that mean he has not won the election? The answer is a definite NO.
This matter is not worthy of serious academic consideration as the position is crystal and pellucidly clear; this writer has not endeavor to bamboozle his reader with a trailer loads of cases as the issue here, again is easily understood. Thus, the petitioners cannot succeed with respect to this averment as one of the grounds of their petition.
1.3 CONCLUSION
In the final conclusion, having meticulously and painstakingly examined the petition of Mr. Peter Obi and his Labour Party and the relevant laws like the Constitution of the Federal Republic of Nigeria and the Electoral Act 2022 and the regulations pursuant thereto and few decided cases, this Writer is of the firm view that the chances of the petitioners’ succeeding in their petition are slim; although one of the grounds dealing with irregularities in the election may avail the petitioners of a serious opportunity to invalidate the election if they are able to flesh out their averments of conscious improprieties which offends the INEC Regulations or some provision of the substantive Electoral Act 2022; perhaps the court may accede to one of the reliefs they are seeking i. e, an order for a fresh election on the ground of substantial contravention of the Electoral Act 2022 and the Regulations pursuant to same Electoral Act 2022.
But again, there are policy considerations here; will the Presidential Election Petitions Tribunal and the Supreme Court of Nigeria order for a fresh election that may potentially cost the nation a whooping Seven hundred million dollars (S700,000,000 USD). Nigerians are on the tenterhooks of anxious anticipation.
Clement C. Chigbo,
Barrister & Solicitor of the Supreme Court of Nigeria,
Solicitor of England and Wales,
Registered Associate of the Supreme Court of the Bahamas,
Attorney at Law (pro hac vice) of Turks and Caicos Island of the British West Indies,
Professor of Law, Afe Babalola University.
clementcchigbo@gmail.com.