SUNDAY EJIKE considers the mounting legal issues for the president-elect and how his part, is defending them.
THE presidential Election Petition Tribunal sitting at the Court of Appeal in Abuja is set to announce the commencement of hearing in the five petitions by aggrieved political parties and their presidential candidates, challenging the declaration of Bola Ahmed Tinubu, as the winner of the February 25 presidential election.
The ruling All Progressives Congress, which fielded the president-elect, has joined the fray, by separately responding to all the petitions.
In its response to the petitions filed by three political parties challenging Tinubu’s election, the ruling party, through its counsel, Thomas Ojo, a member of the APC’s legal team, headed by Prince Lateef Fagbemi, SAN, is asking that their cases, be discountenanced.
The three political parties; Action Alliance (AA), Allied Peoples Movement (APM) and Action Peoples Party (APP) had, in separate petitions, challenged Tinubu’s declaration as the winner of the presidential election by the Independent National Electoral Commission (INEC).
AA, in the petition marked, CA/PEPC/01/2023 has INEC, APC, Tinubu and Hamza Al-Mustapha as respondents.
APM, in its petition numbered, CA/PEPC/04/2023, joined INEC, APC, Tinubu, Kashim Shettima and Kabir Masari as respondents.
In the petition of the APP, Tinubu, APC and INEC are the 1st, 2nd and 3rd respondents respectively.
AA and its presidential candidate, Solomon David Okanigbuan, as well as APM and APP are challenging the outcome of the presidential election on the grounds of alleged substantial non-compliance with the electoral laws, and INEC’s guidelines, for the conduct of the election.
While AA claimed that its candidate, Solomon-David Okanigbuan, was excluded from the presidential poll, an omission that should void the entire exercise, APM is contending that Tinubu was not qualified to contest the election on the grounds of the alleged double nomination of his vice-presidential candidate.
It is also questioning Tinubu’s candidacy on the ground of the substitution of the initial placeholder, Kabir Masari, with Mr Shettima.
On its part, APP claimed that Tinubu was, at the time of the election, not qualified to contest the poll by virtue of the provisions of Sections 131(c) and 142 of the Constitution and Section 35 of the Electoral Act 2022.
“Why Al-Mustapha, others have no case”
Responding, APC faulted the claim by the AA that its presidential candidate was excluded from the election, arguing that its candidate, Hamza Al-Mustapha, participated in the election.
It stated that contrary to AA’s claim, Tinubu “was duly elected and returned as the President-elect of the Federal Republic of Nigeria, having won the majority of lawful votes cast in the said election devoid of corrupt practices or vices and in substantial compliance with the provisions of Electoral Act 2022 (as amended).”
It further argued that the ground on which AA brought its petition “is not meritorious and facts in support of same, are not availing to validate the petitioners’ claims and/or purported right to present the instant petition”.
The ruling also contended that Okanigbuan (listed as the 2nd petitioner) “is not the 1st petitioner’s validly nominated and sponsored candidate to contest the presidential elections held on February 25, adding that INEC, listed as the 1st respondent, did not unlawfully exclude Okanigbuan’s name because he was never the lawfully nominated and sponsored candidate of his party, because it allegedly, did not submit his name to INEC as its candidate for the election.
It added that there is no evidence that the AA conducted a valid primary from which Okanigbuan emerged as a candidate, noting that Al-mustapha was the actual candidate of the AA, who was recognised by INEC.
The APC stated that Okanigbuan was not nominated and sponsored by the AA, as its candidate to contest the presidential elections, adding that “the party was not and could not have been excluded from the election as it participated in the presidential election with the Al-mustapha, as its candidate and scored 14,542 votes.
In its notice of preliminary objection, APC questioned the competence of the petition, noting that it was based solely on pre-election issues.
It said: “For an election petition to be competent, it must complain against the return and/or election of the winner of the disputed election. The instant petition is neither challenging and/or questioning the election of the 2nd and/or 3rd respondent (APC/Tinubu).
“The crux of the petition being the nomination and sponsorship of the 1st petitioner’s candidate is statute barred, having not been commenced within the mandatory 14 days provided for, under the Constitution of the Federal Republic of Nigeria 1999.
“issues of nomination, sponsorship and exclusion of candidates for an election are issues that precede the conduct of an election and are pre-election matters that cannot be raised of canvased before an election tribunal.
“Facts in support of the petition speak to intra —party issues, pre-election disputes and administrative actions of INEC triable by Federal High Court under Section 285 of the Constitution of the Federal Republic of Nigeria as altered by the 4th Alteration Act and outside the original jurisdiction of the Court of Appeal being a Presidential Election Petition Tribunal.”
The party, prayed the tribunal to dismiss APM’s petition and further argued that “the petitioner (APM) alone in the absence of its sponsored candidate cannot benefit and did not have any special interest in the election or return of the 3rd respondent (Tinubu) as the winner of the election.”
APC also queried the legal capacity of the party to challenge the mode it adopted in nominating its candidate and argued that, “The petitioner does not fall under the category of persons that can challenge the internal working operation of the 2nd respondent (APC) regarding the nomination and sponsorship of the 2nd respondent’s candidates for the election.”
The party equally faulted the competence of the petition by APP, arguing that the grounds on which it was founded, are, not sustainable.
The case against Obi’s case.
The presidential candidate of Labour Party (LP), Peter Obi, and his Peoples Democratic Party (PDP) counterpart, Atiku Abubakar, are also challenging Tinubu’s election.
APC has also asked the Presidential Election Petition Court to dismiss them.
The ruling party, which is the 4th respondent in the Obi, Labour’s petition, has INEC, Tinubu and Kashim Shettima, as co-respondents.
It urged the election court, to reject the petition in its notice of preliminary objection marked: CA/PEPC/03/2023 and filed at Secretariat of the Court in Abuja, by the same Thomas Ojo, with substantial cost for lacking in merit and for being frivolous.
The petitioners had asked the Tribunal to nullify the victory of Tinubu and Shettima, in the petition marked: CA/PEPC/03/2023 filed by Livy Ozoukwu (SAN), on behalf of his clients. They contended that Tinubu “was not duly elected by majority of the lawful votes cast at the time of the election.”
Obi and LP said INEC violated its own regulations when it announced the result despite the fact that at the time of the announcement, the totality of the polling unit results had yet to be fully scanned, uploaded and transmitted electronically as required by the Electoral Act.
Among other prayers, the petitioners urged the tribunal to “determine that, at the time of the presidential election held on February 25,, 2023, the 2nd and 3rd respondents (Tinubu and Shettima) were not qualified to contest the election.
“That it be determined that all the votes recorded for the 2nd respondent in the election are wasted votes, owing to the non-qualification of the 2nd and 3rd respondents.
“That it be determined that on the basis of the remaining votes (after discountenancing the votes credited to the 2nd respondent) the 1st petitioner (Obi) scored a majority of the lawful votes cast at the election and had not less than 25 per cent of the votes cast in each of at least two-thirds of the states of the federation and the FCT and satisfied the constitutional requirements to be declared the winner of the February 25 presidential election.
“That it be determined that the 2nd respondent (Tinubu), having failed to score one-quarter of the votes cast at the presidential election in the FCT was not entitled to be declared and returned as the winner of the presidential election held on Feb. 25.”
The APC, in its response, asked the Court to dismiss the suit on the ground that Obi (1st petitioner) lacked requisite locus standi to file the petition because he was not a member of Labour Party, at least 30 days to the party’s presidential primary to be validly sponsored by the party.
It said: “The 1st petitioner (Obi) was a member of PDP until May 24. 1st petitioner was screened as a presidential aspirant of the PDP in April 2022. 1st petitioner participated and was cleared to contest the presidential election while being a member of the PDP.
“1st petitioner purportedly resigned his membership of PDP on May 24, 2022 to purportedly join the 2nd petitioner (Labour Party) on May 27, 2022.
“The 2nd petitioner conducted its presidential primary on May 30, 2022 which purportedly produced 1st petitioner as its candidate, which time contravened Section 77(3) of the Electoral Act for him to contest the primary election as a member of the 2nd petitioner.
“2nd petitioner conducted its presidential primary on May 30, 2022 which purportedly produced 1st petitioner as its candidate, which time contravened Section 77(3) of the Electoral Act for him to contest the primary election as a member of the 2nd petitioner.”
The party argued that Obi was not a member of Labour Party as at the time of his alleged sponsorship and further held that, “by the mandatory provisions of Section 77 (1) (2) and (3) of the Electoral Act 2022, a political party shall maintain a register and shall make such register available to INEC not later than 30 days before the date fixed for the party primaries, congresses and convention.”
It stated further that all the PDP’s presidential candidates were screened on April 29, 2022, an exercise which Obi participated and cleared to contest while being a member of the party, claiming that the petition was incompetent since Obi’s name could not have been in LP’s register made available to INEC as at the time he joined the party.
Atiku as APC’s buffer.
In asking the Tribunal to discountenance Obi’s petition, APC argued that the petition was improperly constituted having failed to join Atiku Abubakar and PDP who were necessary parties to be affected by the reliefs sought.
“By Paragraph 17 of the petition, the petitioners, on their own, stated that Alhaji Atiku Abubakar came second in the presidential election with 6,984,520 votes as against the petitioners who came third with 6,101,533 votes.
“The petitioners urged the tribunal to determine that 1st petitioner scored the majority of lawful votes without joining Alhaji Atiku Abubakar in the petition. For the tribunal to grant prayer of the petitioners, the tribunal must have set aside the scores and election of Alhaji Atiku Abubakar.
“Alhaji Atiku Abubakar must be heard before his votes can be discountenanced by the tribunal,” it said.
The party said the petition and the identified paragraphs were in breach of the mandatory provisions of Paragraph 4(1)(D) of the 1st Schedule to the Electoral Act, 2022.
According to APC, Paragraphs 60 — 77 of the petition are non-specific, vague and/or nebulous and thereby incompetent contrary to Paragraph 4(1)(d) of the 1st Schedule to the Electoral Act, 2022. It said that the allegations of non-compliance must be made distinctly and proved on polling unit basis but none was specified or provided in any of the paragraphs of the petition.
“Paragraphs 59-60 of the petition disclose no identity or particulars of scores and polling units supplied in 18,088 units mentioned therein,” it added.
The party, therefore, argued that the Court lacked the requisite jurisdiction to entertain pre-election complaints embedded in the petition as presently constituted, among other arguments and urged the Court to dismiss the petition with substantial cost as same was allegedly devoid of any merit and founded on frivolity.
However, the ruling party still wants the petition of the same Atiku dismissed. Abubakar and his party, in their petition, which has INEC, Tinubu and APC as respondents, stated that INEC wrongly returned Tinubu as the winner of the election, allocating to him 8, 794, 726 votes.
Setting out the grounds, the lead counsel, Mr. Joe-Kyari Gadzama (SAN), stated that Tinubu’s election is invalid by reason of non-compliance with the provisions of the Electoral Act, 2022, corrupt practices and that Tinubu was not duly elected by majority of lawful votes cast at the Election.
While arguing that Tinubu was, at the time of the election not qualified to contest, Atiku and PDP alleged that the February 25 Presidential election was not conducted in accordance with the provisions of the Electoral Act 2022, and other extant laws and that the non-compliance substantially affected the result.
But APC, in its preliminary objection, argued that, the Petitioners’ claim, on non-qualification is vague and meaningless as having the constitutional threshold is not part of the requirement to contest an election.
It added that PDP and Atiku Abubakar’s petition discloses no reasonable cause of action or any cause of action at all.
According to the party, allegations of non-compliance must be made distinctly and proved on polling unit basis, adding, “In the entire Petition and/or the itemized paragraphs (stated in ground 7 herein), Petitioners did not provide the particulars of polling unit(s) where any irregularity or non–compliance took place
“Failure of the petitioners to plead with specificity the particulars in terms of names, codes and/or polling units where the alleged malpractices, non-compliance, irregularities, took place is a fundamental violation of paragraph 4(1)(d) of the 1st Schedule to the Electoral Act, 2022, which fact renders the petition incompetent and an abuse of court process”.
The petition as presently constituted, the party said, is devoid of necessary particulars/information to support allegation of corrupt practices, violence and non – compliance with provisions of the Electoral Act.
The party said, in the instant election no result of any polling unit where BVAS machine failed to function was collated, to declare Tinubu the winner of the election and all results together with the accreditation data were duly and appropriately transmitted from the various polling units.
“it is not true that the 1st Respondent (INEC) failed to transmit by uploading the result and accreditation data from the polling units directly by BVAS to the 1st Respondent’s electronic collation system and that, there were no irregularities such as over-voting or any other electoral infraction in the polling units where the 2nd Respondents won the election”.
APC said, the results declared by the INEC in the polling unit where Tinubu won represents the lawful votes cast by the electorates.
According to the ruling party, Tinubu was duly elected by a majority of the lawful votes cast at the presidential election held on 25th February, 2023 and scored the highest number of votes as well as one quarter of lawful votes at the election in each of at least two – thirds of all the states in the Federation.
It further claimed that, candidate who scored majority of the votes cast at a Presidential Election and secured one-quarter of the votes cast at the election in at least two-thirds of all the States in the Federation, need not obtain twenty-five percent of the votes cast in the FCT to be entitled to be declared winner of the election.
The inclusion or addition of the Federal Capital Territory (FCT), Abuja by the provision of the Constitution, APC claimed, did not attach special or unique condition or recognition to the Federal Capital Territory but to give Federal Capital Territory parallel recognition with other states of the Federation.
“The declaration and return of the 2nd Respondent (Tinubu) as the winner of the election was valid, not hasty or wrongful, as alleged by the Petitioners”, APC stated.
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