As the Presidential Election Petition Court (PEPC) sets to announce date for adoption of written addresses, SUNDAY EJIKE writes on public expectations following a number of issues that trailed the proceedings.
After months of legal fireworks, proceedings at the tribunal is gradually approaching the last lap, described as the home stretch in athletics. The proceedings have been most remarkable and intriguing due to the assemblage of high calibre of legal luminaries on all sides of the parties to the matters before the five-man panel of justices. In between the proceedings, some high courts have handled cases relating to the general election and delivered judgments with many saying the judgment of the tribunal, in a matter of weeks, could be far-reaching and epochal in the annals of jurisprudence in the country.
On March 1, 2023, the chairman of the Independent National Electoral Commission (INEC), Professor Mahmood Yakubu declared and returned Asiwaju Bola Ahmed Tinubu of the All Progressives Congress (APC) as the winner of the February 25 presidential election. Following the declaration, five political parties and their candidates in the election filed petitions before the Presidential Election Petition Court (PEPC) sitting at the Court of Appeal in Abuja, challenging Bola Tinubu’s declaration as the winner of the election.
The petitioners, in their various petitions, alleged that Tinubu was not qualified to contest the election and that INEC conducted the election in gross violation of the Constitution, the Electoral Act and INEC’s guidelines for the conduct of the election. The five political parties that filed petition against Tinubu’s victory at the poll are the Action Alliance (AA), Action Peoples Party (APP), Labour Party (LP), Allied Peoples Movement (APM) and the Peoples Democratic Party (PDP).
At the inaugural sitting of PEPC, the Action Alliance (AA) and its presidential candidate, Solomon David Okanigbuan, through their counsel, Mr Oba Maduabuchi (SAN) withdrew their petition numbered, CA/PEPC/01/2023, challenging the declaration of Tinubu as the winner of the poll. After moving the motion in that respect, and there was no objection by the respondents. The five-member panel of Justices of the Court, headed by Justice Haruna Tsammani then granted the request for the withdrawal of the petition and consequently struck it out.
Parade of legal luminaries
The court, on May 8, 2023, commenced pre-hearing session of the petitions against the victory of Tinubu at the February 25, 2023 presidential election. The presiding Justice Tsammani, in his opening remarks at the inaugural sitting of the court said, the court is known as Presidential Election Petition Court (PEPC) and not Tribunal and warned against sensational statements from parties in the matter for the safety of the country.
“We should avoid unnecessary time-wasting applications as election matters are time-bound,” he said and promised that justice would be done at the end of the day. In his remarks at the inaugural sitting, Chief Wole Olanipekun (SAN), representing Tinubu, pledged the unflinching support of the bar, in whatever the court intends to do in ensuring that the petitions are heard expeditiously. Counsel for Atiku Abubakar and his party, Chief Chris Uche (SAN), on his part, joined Olanipekun in assuring the court of the support of his team in delivering justice in the matter. According to Uche, “We shall do everything possible to see that, this matter is amicably resolved so that the country can move forward.” Livy Uzoukwu (SAN), for Peter Obi and the Labour Party, also pledged the support of his team to enable the court resolve the petitions seamlessly.
Counsel for INEC, Abubakar Mahmoud (SAN) equally aligned with the commitment made on behalf of the Bar, saying: “We recognise the importance of the matter to the country. We shall do everything possible to assist the court in arriving at justice.” Prince Lateef Fagbemi (SAN), representing the APC, also promised that the legal team of the party in the matter would provide all the necessary assistance to the court for quick hearing and determination of the petitions challenging the victory of the presidential candidate of the APC, Bola Tinubu.
Other members of the panel are Justices Stephen Adah, who is the presiding Justice of the Asaba Division of the Court of Appeal, Misitura Bolaji- Yusuf, Boloukuoromo Moses Ugo and Abba Mohammed.
Contents of petitions
The APP, the second party that filed petition against Tinubu’s election, 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. It later withdrew its petition against Tinubu’s election. Counsel for the party, Mr. Obed Agu, told the court that the withdrawal notice, which was filed on May 9, was predicated on Paragraph 29(1)(2) and (3) of the Schedule for Election Petitions. “My Lords, we are seeking an order of this court for leave to withdraw this petition filed on March 19, as well as an order striking out or dismissing the petition, same having been withdrawn,” Agu stated. Lead counsel to the respondents in the petition, did not oppose to the APP’s application for the withdrawal of the petition numbered, CA/PEPC/02/2023 and the court consequently dismissed it. With the withdrawal of the petitions by the AA and the APP, the petitions challenging Tinubu’s election pending before the PEPC are that of the Labour Party marked as CA/PEPC/03/2023 that of APM, marked CA/PEPC/04/2023 and the PDP, marked CA/PEPC/05/2023.
Obi and his party, in their joint petition, alleged various irregularities, insisting that Tinubu and his running mate, Senator Kashim Shettima, were not qualified to contest the February 25 presidential election.
The LP Presidential candidate insists that the president-elect did not win the majority of lawful votes and failed to garner one-quarter of votes in the Federal Capital Territory (FCT). APM, in its petition, which has INEC, APC, Tinubu, Kashim Shettima and Kabir Masari as respondents 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 grounds of the substitution of the initial “placeholder,” Kabir Masari, with Shettima.
Atiku Abubakar and his party, which hinged their joint petition on five grounds, are seeking the conduct of a fresh election due to alleged irregularities at polling units on February 25. He and the PDP said Tinubu was declared the winner when all results and accreditation data from polling units had not been transmitted and uploaded by INEC.
The APC filed its objection to all the petitions against the victory of its candidate, Tinubu in the election and urged the court to discountenance the complaints of the petitioners.
Pre-hearing report
In the pre-hearing session report released by the Court, two major issues were ostensibly decided, equally, for the two contending parties, considering where they stood on them, in the course of advancing the issues. Tinubu’s opponents, Peter Obi of Labour Party and Atiku Abubakar of the PDP were denied by the PEPC, the request for live coverage of proceedings in the petitions.
During the pre-hearing session, Atiku and Obi, along with their parties had, in their various motions, prayed the court for an order allowing live broadcast of proceedings in their petitions, as well as an order, directing the modalities for the live broadcast, because of the national importance of the petitions. The petitioners argued that the issue of live broadcast was not alien in the country. In the pre-hearing session report presented by Justice Tsammani, the court gave reasons for dismissing their applications for live broadcast of proceedings. The court held that, televising the proceedings of the court in the petitions, is outside its constitutional mandate. Justice Tsammani also held that the issue of live streaming of proceedings was novel, unprecedented and not supported with any law in the country for now. He said televising the proceedings would not advance the case of the petitioners, adding that the court was constituted to hear and determine petitions in accordance with the law and Practice Directions by the President of the Court of Appeal. He further stated that the Practice Direction does not include allowing televising of proceedings as requested by the petitioners and that, the court would not allow a situation that could affect the proceedings. The court concluded that the issue of televising of proceedings requires a judicial policy, saying “This application is devoid of merit and is accordingly dismissed.”
Justice Tsammani said there must be a legal framework before live streaming of court proceedings can be allowed adding that, other jurisdictions, where live streaming of proceedings is allowed, have a legal policy backing it. It further held that Obi did not disclose what he stands to lose if the proceedings were not televised live.
The other issue that appears like a victory for the anti-Tinubu litigants is the decision of the court to consolidate the three surviving petitions of Atiku Abubakar of PDP, Peter Obi and the APM, against Tinubu. The court, had suo moto, proposed the consolidation and parties took different positions on it. While presenting the report of the pre-hearing session, Justice Tsammani noted the decision of the panel to consolidate the petitions despite objection by the respondents (Tinubu, Shettima and APC), along with INEC.
While the petitioners are in support of the consolidation of the petitions, in line with Paragraph 50 of the first schedule to the Electoral Act 2022, all the respondents, through their counsel, opposed the consolidation. INEC’s counsel, Dr. Kemi Pinhero (SAN), in his submissions on the request by the court, said the electoral umpire was indifferent and would abide with the decision of the court, while, APC, Tinubu, Kashim Shettima and Kabiru Masari, the fifth respondent in one of the petitions, through their counsel, vehemently opposed consolidation. The respondents held that the interest of justice would not be served if the petitions were consolidated as the grounds raised by parties are not the same, urging the court not to consolidate the petitions.
But, Justice Tsammani, in his ruling, said the court decided to consolidate the petitions because the issues canvassed on the petitions are the same and held that the three petitions are related to the same election and the return of Tinubu as the winner, in addition to the effect that issues raised by the parties are similar.
The APM, on June 21 opened and closed its case in its petition challenging the declaration of Tinubu as the winner of the February 25 presidential election.
After an attempt by President Tinubu and the APC to shut it out of the petition was unseccessful, the APM called its lone witness, Aisha Abubakar, who gave evidence in aid of its petition. Led in evidence by the lead counsel to the APM, Gideon Idiagbonya, the witness identified and tendered the five witness statements on oath she deposed to at the registry of the court. The witness, who is the assistant welfare officer of the APM, also tendered her membership card, along with other documents as evidence in the matter. Following a subpoena, INEC, through its Deputy Director, Legal Drafting, Joan Molle Arabs produced two documents, Certified True Copies of an online temporary acknowledgment of Kashim Shettima’s profile of Thursday July 14, 2022 and an online temporary acknowledgment of Lawal Kaka Shehu’s profile of Friday, July 15, 2022, which were tendered and admitted as exhibits by the court.
At the end of the cross examination of the witness by INEC, APC, Tinubu, Kashim Shettima and Kabiru Masari, who are respondents in the petition, counsel for the petitioner, announced the closure of the case of the petitioner.
The respondents, through their counsel, did not call evidence in the petition, but relied on the May 26, 2023 judgment of the Supreme Court and a letter notifying INEC of the withdrawal of Shettima as a senatorial candidate of the APC for Borno Central Senatorial district tendered by counsel to INEC, Dr. Kemi Pinhero (SAN). The Supreme Court judgment, which was tendered in evidence by counsel for the APC, Lateef Fagbemi (SAN), dismissed a suit by PDP against Tinubu’s eligibility to contest the February 25 presidential election on the ground of double nomination of his running mate, for lacking in merit. The petitioner raised objection to the admissibility of the said judgment, but the court admitted it as evidence and after the conclusion of cross examination of the witness, the court gave the petitioner 10 days within which to file and serve its final written address and gave the respondents seven days to file and serve their final written addresses in the petition. The court then, fixed July 14, 2023 for adoption of final written addresses of parties in the petition.
Atiku, Obi close case
Similarly, former Vice President Atiku and his party on June 23, closed their case in their joint petition against Tinubu’s election. At the end of the evidence of the 27th witness of the petitioners, Mr. Mike Enahoro-Ebah, subpoened to testify in court, their lead counsel, Chief Chris Uche (SAN) told the court that the petitioners are closing their case, having exhausted the days allotted to them by the court. According to Uche, “We humbly inform your Lordships that, this will be our last witness in this case, having exhausted the days allocated to us. Pursuant to the pre-hearing session report and Paragraph 4(5) of the 1st schedule to the Electoral Act 2022, we most humbly apply to close the case for the petitioners.”
With the agreement of parties in the matter, the court adjourned till July 3, 2023 for INEC, President Tinubu and the APC, who are listed as respondents in the matter, to open their defense in the petition.
Earlier in the proceedings, the court admitted some documents tendered by Atiku Abubakar and his party in aid of their joint petition against Tinubu’s election. The documents tendered and admitted as exhibits by the court are: transcript in aid of admission into Chicago State University made by South West College in the name of President Bola Ahmed Tinubu, who was identified as a female gender, a certified true copy of a certificate supposedly issued to Tinubu by the Chicago State University, a certificate of service by the National Youth Services Corps (NYSC) issued in the name of Tinubu Bola Adekunle, Party membership card and certificate of service from Mobile Oil Nigeria Plc. Among other documents tendered in evidence by the 27th witness called by the petitioners in aid of their petition, are a notarised judgement of the USA court for criminal forfeiture of asset of Tinubu as well as a print out of the Guinea passport belonging to Tinubu. The witness, who is an Abuja based haman rights and public interest lawyer told the court under cross examination by INEC’s lead counsel, Abubakar Mahmoud (SAN), that the election went on smoothly at the polling unit where he voted in Abuja. He said, he filed a direct criminal complaints against Tinubu before a Magistrate Court in Abuja in 2022 as human rights and public interest lawyer.
The legal action, marked as CR/121/2022 was tendered in evidence by Chief Wole Olanipekun (SAN), the lead counsel to President Tinubu. On whether the judgment of the USA court was registered in Nigeria, the witness answered in the negative and said he was not aware of the letter dated February 4, 2003 by the US Consulate in Nigeria in reply to a request letter by the Nigeria Police that, there was no record of conviction against Tinubu.
The witness also said he was not aware of the public notice issued by the Chicago State University on June 27, 2022, stating that Tinubu attended the University and graduated with an honour degree. The public notice was tendered in evidence by Chief Olanipekun and admitted by the court despite the objection by the petitioners.
A breakdown of the documents are, Form EC8As from 25 Local Government Areas (LGAs) of Delta state, Forms EC8As from 13 LGAs of Ebonyi state, Form EC8As from 18 LGAs of Edo, from 17 LGAs of Enugu, from 27 LGAs of Imo state and Form EC8As from 21 LGAs of Kogi State. INEC, Tinubu and the APC, who were listed as respondents in the petition marked, CA/PEPC/05/2023 raised objection to the admissibility of the documents and promised to give reasons for their objection at the final address stage. The court however admitted the documents and marked them as exhibits in the matter.
Former senator, Dino Melaye , appeared before the Court as a witness in the petition filed by Atiku and his party to challenge the outcome of the Februarypoll. Melaye, dubbed as a star witness of the petitioners, told the court that the final result of the presidential election announced by the electoral body was wrongly computed. The former senator, who is also the PDP candidate in the forthcoming Kogi State governorship election, is the 23rd witness the petitioners called to challenge the victory of President Tinubu in the disputed election. The witness said he refused to sign the final result announced by INEC chairman because of the alleged wrongly computation of the election.
In the cause of the proceedings, Atiku and his party tendered Certified True Copy (CTC) of the final report of the European Union Election Observer Mission, which faulted the conduct and outcome of the February 25, 2023 presidential election. The EU EOM had, in the report, claimed that the election was characterised by impunity and lack of transparency.
Obi and his party also opened and closed their case in their petition challenging Tinubu’s declaration as President of the Federal Republic of Nigeria. After the testimony of the 13th witness, Mr Peter Yare, lead counsel for the petitioners, Dr. Livy Uzoukwu (SAN) announced the closure of the case of Obi and his party against Tinubu’s election. Obi and the Labour Party are, in their petition marked, CA/ PEPC/03/2023 praying the court to upturn Tinubu’s election on the ground of alleged gross violation of the Constitution, Electoral Act and the guidelines by INEC for the conduct of the presidential election.
Earlier in his testimony, the 12th witness of the petitioners, Yunusa Tanko alleged that INEC allocated votes casted in the presidential election in favour of Tinubu. The witness, who was the Chief Spokesman of the Presidential Campaign Council of the Labour Party told the court under cross examination that, the Labour Party would have won if INEC had uploaded the election results of the presidential election electronically into its viewing portal. Asked by Tinubu’s lead counsel, Chief Wole Olanipekun (SAN) if he knew the number of the unlawful votes credited to Tinubu, the witness answered in the negative and noted that, the Labour Party is also challenging the results of Atiku Abubakar who came second in the presidential poll.
Counsel for the APC, Lateef Fagbemi (SAN) tendered a copy of the May 26 judgment of the Supreme Court in suit number SC/CV/501/2022 filed by the PDP on the double nomination of the vice-presidential candidate of the APC, Kashim Shettima. The court admitted the judgement, which dismissed PDP’s case for lacking in merit and marked it as exhibit despite objection by Dr. Uzoukwu.
The 13th petitioners’ witness, Peter Yare, led in evidence in chief by counsel for Obi and LP, Ikechukwu Ezechukwu (SAN), adopted his statement on oath deposed to on Friday which was tendered in evidence before the court. Under cross examination, the witness, who was INEC’s presiding officer in one of the polling units in Kujama, Kaduna state said, the electronic upload of the presidential election results to INEC’s I-ReV was the only problem experienced during the February 25 general elections. At the end of the testimony of the petitioners’ last witness, Uzoukwu told the court that, Obi and the Labour Party will be closing their case in their petition against Tinubu’s election.
After all the petitioners closed their cases in aid of their various petitions against Tinubu’s election, the first respondent in all the petition, INEC, which conducted the disputed election opened and closed its case after calling only one witness.
In aid of their petition, Obi and LP called cloud engineer and architect from the Amozon Web Services Incorporated (AWS), Mpeh Clarita Ogar, who told the court that she was not in court on the mandate of her organisation. She, however, insisted that there were no technical glitches when the election was held.
After the evidence of INEC’s sole witness, Dr. Lawrence Bayode, the Director, Information Technology (IT) department of the Commission and adoption of his witness statement on oath deposed to on April 10, 2023, the lead Counsel to the electoral body, Abubakar Mahmoud (SAN) announced the closure of the case of the electoral body in the petition. Leading the witness in evidence, Mahmoud tendered the cloud trail log report and a certification in evidence and the court admitted the documents as exhibit and taken as been read and demonstrated before the court.
Under cross examination by Olanipekun, counsel to Tinubu and Shetimma, the witness agreed that the foundation of any election conducted by INEC is the results recorded in Forms EC8As and that, blurred results downloaded from INEC’s I-ReV will not affect the results recorded in Form EC8As. The witness agreed with Olanipekun that the E-Naira launched in October, 2021 has not been activated due to technological impediment and that the E-Naira App has to be taken from Google play store for the purpose of fixing its technological glitches shortly after it was launched. He agreed with Tinubu’s lawyer that, election are practically concluded at polling unit when the presiding officers input election results into Form EC8As, announce openly to the hearing of all parties and their agents, signing of Form EC8As as well as snapping of the forms by the Biomodal Voters Accreditation System (BVAS) machine. Answering questions from counsel to the APC, the witness told the court that, it was the physical results in Forms EC8As that INEC used in computing the results of the Presidential election. Dr Bayode said the glitches which occurred during the presidential election did not affect the collation of the election results and that, if what was downloaded to I-ReV was not clear, physical results can be obtained to get the required information. The witness explained that the cloud trail logs are obtained from INEC’s account on the Amazon Web Services (AWS) and show the activities of the patches that were deployed on the E-Transmission application on AWS to fix the glitches that were encountered on that day on INEC’s application. Under cross examination by counsel to the petitioners, Mr. Patrick Ikwueto (SAN), Dr. Bayode agreed that the E-Transmission application was tested on February 4, 2023 before it was deployed for use during the presidential election.
Ikwueto tendered the report of the test in evidence and while INEC did not object to its admissibility by the court, Tinubu, Shettima and the APC, listed as second to fourth respondents objected to the admissibility of the document and promised to give reasons for the Objection at the address stage. The court however, admitted the document as exhibit.
After the testimony of the sole witness, Mahmoud announced the closure of INEC’s defense in the petition filed by Obi and his party against Tinubu’s election. Olanipekun, in defense of Tinubu’s victory at the February 25 presidential election on July 5, 2023 called his last witness, who told the Court that Tinubu does not need to score 25 percent of votes cast in the Federal Capital Territory (FCT) to be declared winner of the election. Under cross examination by counsel for Atiku and the PDP, Eyitayo Jegede (SAN), the witness, Senator Michael Bamidele, who is a lawyer and the current Senate majority leader said, although Abuja is the Federal Capital of Nigeria, it has no special status other than that. When asked if the report of the committee on the location of FCT of the Federal Republic of Nigeria recommends a special recognition for FCT as a symbol of unity, the witness said other state capitals are also centres of unity. He agreed with the petitioners’ counsel that President Tinubu scored 19.4 percent of the total votes cast in the FCT and when asked if Tinubu would emerge as the first president to be declared winner of a presidential election without scoring 25 percent votes in FCT and not winning his home state, the witness said it does not matter. According to the witness, the judgment of the US court on the forfeiture of $460,000 has Tinubu’s name but not as a criminal suspect, insisting that it was a civil forfeiture and not a criminal forfeiture.
Answering questions from the lead counsel to the APC, Lateef Fagbemi (SAN), the witness agreed that there cannot be a conviction without a charge, trial, or indictment and that exhibits AR7 and AR8 gave Tinubu a clean bill of health as far as an indictment of criminal record in the United States is concerned. The witness said, by the judgment of the Federal High Court, Abuja, in a suit filed by Labour Party against INEC on the mode of collation of election results, INEC is at liberty to use any mode of collation of results it deems fit.
After the testimony of President Tinubu’s sole witness, Chief Wole Olanipekun (SAN) Tinubu’s lawyer, announced the closure of the defence of his client in the petition filed by Atiku and his party challenging the declaration of Tinubu as the winner of the February 25 election. When called upon to open defence for the APC listed as the third respondents in the petition, Fagbemi told the court that, “Having taken a sober reflection of the entire case, we felt we have enough evidence and we are not calling any witness; we announced the closure of the case of the 3rd respondent.”
Meanwhile, the panel of Justices of the court, led by Justice Tsammani gave the respondents 10 days to file their final written addresses, and the petitioners seven days to respond and five days to respond. The presiding Justice said the parties would be communicated on the date for the adoption of their final written addresses in the petition.
No doubt, proceedings at the court has entered a crucial stage. It is bound to draw more attention because of the waiting game across political borders and other vested interests in the outcome of the presidential election and ripple effects in the polity.
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