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LANRE ADEWOLE and SUNDAY EJIKE periscope what the Osun decision means for the presidential poll.
If the principle of stare decisis (honouring precedents) is to apply, the Court of Appeal may have signaled where it stands on the multiple challenges currently mounted against the conduct of the 2023 general election, by candidates, who are dissatisfied with the outcomes, as announced by the Independent National Electoral Commission (INEC).
Before Election Petition Tribunals across the country, are complaints of alleged deliberate manipulation of the voting and counting processes, putting the technological gadgets, deployed by the electoral commission, practically, on trial.
Of the numerous petitions across the country, none, unarguably, captures national and international attention like the judicial battles initiated by the candidates of the Peoples Democratic Party (PDP), Atiku Abubakar and Labour Party, Peter Obi, against Bola Tinubu and INEC, over the decision of the electoral body, to declare the APC candidate, the winner of the most-keenly contested presidential election in Nigeria’s political history.
The petitioners have anchored their individual cases on alleged non-compliance to the electoral laws, as well as the guidelines of INEC.
The petitioners also alleged that the February 25 presidential election was characterised by huge irregularities and electoral malfeasances, following INEC’s failure to electronically upload results immediately from its polling units to the INEC Results Viewing Portal (IREV).
While the petitioners are individually asking the court, to, on one hand, declare them as the authentic winner of the February 25 presidential election; on the other, they are asking for the cancellation of the entire poll and an order for fresh election.
Unlike the governorship election that has a three-layer judicial opportunity to ventilate electoral grievances, to wit, the Tribunal, the Court of Appeal and the Supreme Court, the presidential contest in court, has just two windows to protest disputed outcomes, namely, the Court of Appeal, serving as the Presidential Election Petition Tribunal and the Supreme Court, serving as the sole appellate platform.
Historically, the two courts have never disagreed on decisions in the adjudication of presidential election disputes. The closest to a parting of ways, was in 2007 when Supreme Court had to rely on a thin-majority judgement of 4 to 3, to uphold the decision of the Court of Appeal, putting a judicial stamp on the much-disputed election that produced now-late President Umaru Yar’Adua.
Taming monster of conflicting rulings.
Following the swearing-in of members of the election petition tribunals late 2022, by the Chief Justice of Nigeria, Kayode Ariwoola, the President of the Court of Appeal, Monica Bolna’an Dongban-Mensem, the appointing and supervising authority for the tribunals, did not only compile a Case Management System, for the participating judges, she also put them through a workshop to further intimate the judges with the crucial national assignment they were being given. The CMS, according to her, was the document expected to serve as an additional guide, to the tribunal members. The effort, according to the leadership of the Judiciary, was to ensure that the system isn’t thrown into the chaos of conflicting judgements again, with its attendant public embarrassment.
On August 30, 2021, the National Judicial Council, chaired by then-Chief Justice of Nigeria, Tanko Muhammad, unprecedentedly summoned Chief Judges of six states to Abuja over embarrassing conflicting orders issued by courts of coordinate jurisdiction, in their divisions, in some political matters. The affected CJs were those of Rivers, Kebbi, Cross River, Anambra, Jigawa and Imo States.
A week after, on September 7, now joined by the CJ of the Federal Capital Territory (FCT), the seven divisional helmsmen were interrogated by Tanko, at a tension-session in Abuja.
Spokesperson of the Council, Soji Oye said of the extraordinary meeting; “The meeting which commenced at 11am and lasted till 5:30pm, began with a one-on-one interaction with the CJs. Each of the CJs was separately quizzed personally by the CJN for over an hour, before later reading a riot act in a joint session with all of them.”
The statement which deliberately described the emotion of Tanko at the session as “visibly angry”, went ahead to quote him as saying that, “a damage to one jurisdiction is a damage to all. Your job as Heads of Court is a sacred one, and it, therefore, includes you vicariously taking the sins of others. There must be an end to this nonsense. You shall henceforth take absolute charge in assigning cases or matters, especially political, personally.”
Apart from escalating the warning to all the 37 Chief Judges (including FCT) he also caused a Policy Guidelines on election cases, to be issued to all judicial officers, nationwide.
Another statement from the spokesperson of the Council, dated May 11, 2022, read in part, “Concerned by the multiplicity of litigations of political suits at different Courts of coordinate jurisdiction across the nation, resulting in conflicting orders on the same issues and facts, the National Judicial Council at its 98th Meeting of 10 and 11 May, 2022 under the Chairmanship of The Chief Justice of Nigeria, Honourable Dr. Justice I. T. Muhammad, CFR, issued Policy Directions in order to remedy the situation.”
The Council went ahead to issue a lengthy how-to guidelines on election matters in regular courts, to avoid judicial officers, driving the system back into the repugnance of the months before, when politicians were accurately predicting, well ahead of time, orders that some courts would make concerning them.
The Policy, which will qualify as Tanko’s most profound gift to the Judiciary before his exit, is now fully operational nationwide, but limited to pre-election matters.
For election petition tribunals to also not fall into the mess of conflicting rulings, Dongban-Mensem, decided to symbolically hold the hands of the members through their assignments.
Their own rule.
Having set the ground rules for the tribunals, it is going to be a misnomer for the Court of Appeal, to discountenance its own decided cases, in deciding similar cases, especially in election matters, where requests of litigants and the grounds for seeking them, are usually similar, though their evidence usually differ.
Last Friday, in restoring the mandate of Osun state governor, Ademola Adeleke, the Court of Appeal made certain pronouncements that pointed at the positions the court might be taking, serving as the presidential election tribunal.
The Osun State Governorship election tribunal, in a two-to-one decision, had in January held that the immediate Governor of Osun State, Adegboyega Oyetola, proved his case that the election in which Adeleke denied him a second term in office, was conducted in substantial non-compliance to the enabling laws. The tribunal also held that Oyetola and his party; the All Progressives Congress (APC), were able to prove the allegation of over-voting in some polls units against Adeleke and his party, the People’s Democratic Party (PDP).
Chairman of the tribunal, Justice Tertsea Kume, who read the majority judgment had disclosed that the excess votes were deducted, leading to Oyetola being victorious with the highest number of lawful votes.
The upper court would have none of the conclusion of the tribunal.
The three-man panel of the court while delivering ruling in Adeleke’s appeal against the judgement of the lower court, was unanimous that the tribunal was wrong in concluding that there was over-voting in some polling units when such allegations were not convincingly proved.
According to the panel, before a case of over-voting can be established, the person, making the allegation must present the Voters’ Register, the Bi-modal Verification Accreditation System (BVAS-which contains the information of accredited voters, votes cast in each polling unit, results as entered into the forms EC8A, amongst others.
In concluding that Oyetola and APC didn’t prove over-voting, the three justices, in their separate considered opinions, asserted that the failure of the duo to call witnesses, especially polling agents, who witnessed the voting, was a huge blow to their case.
The panel further faulted Oyetola and the APC for hinging their allegation of over-voting on only the information they obtained from a secondary source which was INEC back-end server report.
On the issue of jurisdiction, the Court of Appeal also held that the law allows the tribunal to suspend decisions on Preliminary Objections till the conclusion of proceedings, but faulted the tribunal for not showing in writing that it considered Adeleke’s preliminary objection to Oyetola’s petition, on its merit.
Another issue that is dominant in the petitions challenging the outcome of the presidential poll, is the alleged non-qualification of Tinubu, to be on the ballot, which the petitioners claimed, has invalidated all the votes, allocated to him in the election by INEC.
While the alleged non-qualification of Tinubu is being premised on issues of alleged conviction for narcotic involvement in the United States and other allied issues, the position of the Court of Appeal in Adeleke’s case, regarding his qualification or otherwise to run for governor, might be instructive, though the allegation against the Osun governor, is dissimilar to Tinubu’s.
Regarding Adeleke’s qualification to contest the July 16 2022 governorship election, the panel sided with the tribunal in holding that Adeleke was qualified to contest the election, adding that allegations of supplying false and forged documents must be proved beyond reasonable doubt, which Oyetola and APC, failed to, according to the court.
The panel also reminded Oyetola and APC that the principle of stare decisis should and shall apply, since the same Court of Appeal had earlier ruled in a pre-election matter on the Osun Guber controversy, that Adeleke was qualified to seek the office.
The panel went ahead to make a bold declaration that until a higher court, in this instance, the Supreme Court, rules otherwise, the position of the law, is the stance of the Court of Appeal, that Adeleke was qualified to run, despite the alleged inconsistencies in his academic qualification claims.
Read the rest on www.tribuneonlineng.com
Where Obi, Atiku stand.
In their separate petitions against INEC’s declaration of Tinubu as the victor of the much-disputed poll, the two candidates are united in their opposition to Tinubu being the beneficiary of an election that has arguably emerged as the worst in integrity, in the history of Nigeria.
Global leaders have largely withheld felicitating with the INEC-declared victor. The foreign observers from Africa, European Union and United States have openly condemned the conduct and outcome of the presidential election. But they have also been unanimous in encouraging dissatisfied participants, to approach the Judiciary as their last hope for justice.
While both Atiku and Obi have heeded this call, each, is asking for what the other person wants; to be declared the winner by the Judiciary or a fresh poll, ordered.
But in seeking a repeat, Obi didn’t want Tinubu to participate.
In their petition marked, CA/PEPC/03/2023, Obi and his Labour Party, had argued that the February 25 presidential election was invalid by reason of corrupt practices and non-compliance with the provision of Electoral Act,2022 and prayed the tribunal to, in the alternative, “make an order cancelling the election and compelling the 1st respondent (INEC) to conduct a fresh election at which the 2nd Respondent (Tinubu), 3rd respondent (Shettima) and 4th respondent (APC) shall not participate.”
But Atiku doesn’t mind running it back with Tinubu, though like Obi, he wants to be declared the lawful president-elect.
Aside above, he is also considering two other options. One is for the entire poll to be retaken, two, is for the court to declare a run-off, between him and Tinubu as first and second in the original poll, which the former Vice-President says Tinubu didn’t lawfully win.
In their petition marked, CA/ PEPC/05/2023, and tabled before the Tribunal on March 20, 2023, Atiku and his PDP, alleged that there was substantial non-compliance to the constitution, the Electoral Act and INEC’s election guidelines in the conduct of the election.
Last week’s pronouncement of the Court of Appeal in Adeleke’s case, now has a precedent set for how the petitioners can convince the adjudicating panel.
In seeking his reliefs, Atiku had asked that “it may be determined that the 2nd Respondent (Tinubu) was at the time of the election not qualified to contest the said election” and in the alternative, “the 1st Petitioner, (Atiku) having scored the majority of lawful votes cast at the Presidential election of Saturday, 25th February, 2023, be returned as the winner of the said election and be sworn in as the duly elected President of the Federal Republic of Nigeria.”
PDP and Atiku also prayed for an order directing INEC to conduct a second election (run-off) between the former VP and Tinubu and in further alternative, that the election to the office of the President of the Federal Republic of Nigeria held on 25th February, 2023 be nullified and a fresh election (re-run) ordered.
With the issue of substituted service of their processes on Tinubu and APC already resolved in their favour, Atiku and Obi appear set for extraordinary legal contests, where both would be fighting on the same side, to get what they can’t realistically share, as the world waits on the Nigerian Judiciary.
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