Battle of Wits Looms as 89 SANs Slug it out at Presidential Election Tribunal

This year’s Presidential Election Tribunal will be a legal milestone and an incredible battle of wits as the three leading political parties – Peoples Democratic Party, Labour Party, and the ruling All Progressives Congress hired a total of 89 Senior Advocates of Nigeria to take on their cases, Wale Igbintade writes

The legal tussle between the Peoples Democratic Party (PDP), Labour Party (LP), and the ruling All Progressives Congress (APC) over the outcome of February 25 presidential election has taken a new dimension following a report that a combined team of 89 Senior Advocates of Nigeria have been engaged.

Sources within the camp of the warring political parties said that the array of legal luminaries, drawn from different chambers, are presently being furnished with materials that could be tendered as evidence in court.

The APC candidate, Bola Tinubu, was announced the winner of the keenly contested election by the Independent National Electoral Commission (INEC).

The former Lagos governor polled 8,794,726 votes to defeat the Peoples Democratic Party candidate, Atiku Abubakar, and the LP flag-bearer, Peter Obi, who got 6,984,520 and 6,101,533 votes, respectively.

But Atiku and Obi rejected the results announced by INEC, with each claiming at separate press conferences that the election was fraught with violence and massive rigging.

The drama took a twist penultimate Friday when the two major opposition candidates were reported to have approached the court to seek permission for the inspection of election materials used during the poll.

Few days later, Tinubu’s camp also sought the court permission to have access to examine the said electoral materials for the alleged illegality by the opposition.

Last Wednesday, Atiku’s camp announced that it had assembled 19 SANs to challenge the results of the poll.

While briefing his legal team at his campaign office in Abuja, the former vice president tasked them to “establish the claim of illegality in the February 25 presidential election and reclaim the mandate of the Nigerian people.”

He told the team that apart from reclaiming the mandate from those who undertook the electoral heist that was not a reflection of the will of Nigerians, the legal team should also use the opportunity of the trial to strengthen constitutional democracy in the country.

The team, led by a Senior Advocate of Nigeria, JK Gadzama, has 18 other SANs.

They include Chris Uche, Paul Usoro, Tayo Jegede, Ken Mozia, Mike Ozekhome, Mahmood Magaji, Joe Abraham, Chukwuma Umeh, Garba Tetengi and Emeka Etiaba.

Others are Chief Goddy Uche, Prof. Maxwell Gidado; the National Legal Adviser of the PDP, A. Ajibade, Mr. O. Atoyebi, Mrs. Nella Rabana, Paul Ogbole, Nuremi Jimoh, and Abdul Ibrahim.

Atiku’s Special Assistant on Public Communication, Phrank Shaibu, after the meeting, said, “Atiku raised a team of 19 Senior Advocates of Nigeria. You (Tinubu) claimed you won the election, yet you gathered 50 lawyers; what are you gathering them for?”

“It is imperative that they work assiduously towards reclaiming the mandate, not necessarily because of him (Atiku) and the PDP, but to strengthen democracy and the electoral process and for generations unborn.”

With the latest move, the legal tussle now has 89 SANs, who are ready to outwit one another for their clients.

The National Secretary of Labour Party, Umar Farouk, said: “We have more than 20 SANs that are willing to participate and offer their services for the renewal and emergence of a new Nigeria. As I am talking to you, our lawyers are working on it.

“But this is not something we can discuss on the pages of a newspaper. All I can tell you is that we have started ‘trekking’ to the court,” he said.

However, information reaching THISDAY said the legal team would be led by Chief Onyechi Ikpeazu (SAN).

As expected, the APC has expressed its readiness to defend its victory in court. On Tuesday, the ruling party also announced the appointment of a crack team of experienced lawyers to defend the President-elect.

The legal team consisted of 12 SANs and the National Legal Adviser of the party, Ahmad El-Marzuq.

In a statement titled “APC Appoints Presidential Election Petition Legal Team,” El-Marzuq said the legal luminaries were carefully selected based on their vast experience in election petition matters, constitutional law and litigation.

Their appointment was announced a few days after the Chief Spokesman for the Tinubu-Shettima Presidential Campaign Council, Festus Keyamo, said Tinubu and his camp would not be intimidated by the legal threat of the opposition.

El-Marzuq also disclosed that the team of SANs would be led by Prince Lateef Fagbemi, a renowned lawyer, who has successfully handled various high-profile election matters and other landmark cases.

 Others are Sam Ologunorisa, Murtala Abdulrasheed, Rotimi Ogunesom Olabisi Soyebo, Gboyega Oyebowale, Pius Akubo, Aliyu Saiki, Oluseye Opasanya, Tajudeen Oladoja, Kazeem Adeniyi and Suraju Saida.

But the APC Presidential Campaign Council disclosed that 12 SANs do not reflect all the legal team who volunteered to defend the Tinubu.

While speaking with one of our correspondents on Wednesday, the PCC Director of Media and Publicity, Bayo Onanuga, revealed that as of the time of filing this report, the total number of legal luminaries on their side had risen to 50.

Onanuga also identified popular legal luminary, Wole Olaonipekun SAN, and the PCC counsel, Babatunde Ogala SAN, as leading the other pack of the APC team.

He said: “The earlier list released by the APC partially just reflects the lawyers who will be involved in the case. It does not capture the full picture. I am aware, for instance, that Wole Olanipekun is the leader of the team. And of course, the man who has been representing Asiwaju all these while in the court, Babatunde Ogala, is also a member of the team.

“I am aware that what we have in the public arena is just a partial list. There is no conflict concerning it. But there is an ongoing move to harmonise the list as one. Altogether, I think there are about 50 of them in all.”

Section 134 of the Electoral Act, 2022 provides that a party who intends to challenge the process and or outcome of an election can do so on the following grounds:

(a) A person whose election is questioned was, at the time of the election, not qualified to contest the election; (b) The election was invalid by reason of corrupt practices and non-compliance with the provisions of this Act; or (c) The respondent was not duly elected by the majority of the lawful votes cast at the election.

An election, according to Cornelius Gabriel of Olisa Agbakoba Legal (OAL), can be questioned on the grounds that it was invalid by reason of corrupt practices or non-compliance with the provisions of the Act. The Electoral Act, the Regulations and Guidelines for the conduct of Elections regulate the conduct of elections. This places a compulsory duty on INEC to adhere to the provisions of the above laws in order to have free, fair and credible elections and a breach of the Act and Guidelines has far-reaching consequences.

For instance, the failure of INEC to upload election results to the INEC Result Viewing Portal (IREV) in real-time using the BVAS, electoral violence, disenfranchisement of voters, intimidation, manipulation of election results, mutilation of result sheets etc are all incidents of corrupt practices and non-compliance, which the Electoral Act frowns at and are grounded upon which an election can be challenged.

The court in Iniama v Akpabio (2008) 17NWLR(pt.1116) 225; OKE V MIMIKO (2014) 12 NWLR (PT. 1388) 322, among others held that a petitioner who pleads corrupt practices and non-compliance with the Electoral Act must establish by evidence their effects on the outcome of the election. That is, for a petition to succeed under these grounds, it must be proven that there was non-compliance and that the non-compliance substantially affected the result of the election.

Interestingly, Section 137 of the Electoral Act, 2022 provides that it shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if the originals or certified true copies manifestly disclose the non-compliance alleged.

For a Petitioner to succeed on this ground the evidence adduced in support of the allegation should come directly from the officers who were on the field where the votes were counted and or collated. This requires party agents from each polling unit where corrupt practices are alleged must be called to testify in court as evidence of a person who merely received the figures without being present is hearsay which is not admissible. The court is therefore not going to rely on the testimony of agents from other polling units or other wards. The attitude of our courts has been to treat the testimony of agents from other polling units as hearsay evidence which is not admissible. See: Buhari v Obasanjo (2005) 13 NWLR (P. 941)

Interestingly, the petitions filed this year will throw up new compliance issues that are a substantial departure from the decision in the case of Atiku Abubakar & Anor v INEC & Anor LER (2019) CA/PEPC/002/2019. The compliance issues will be around the use of technology. Of note is the use of card readers, BVAS, and IREV. The Osun case of Oyetola and Anor v Adeleke & Anor is in this sense a prelude to this new era.

According to Sanctus Ejeh of OAL, any petitioner approaching the election petitions tribunal on grounds of non-compliance must not only ensure he puts together a formidable legal team that comprises experts in the use of technologies provided under the Electoral Act 2022, but must also be abreast with innovations introduced by some relevant sections of the 2022 Act. These innovations in the Electoral Act will be the game changers at the election petition tribunals. For instance, although the court was reluctant to grant an order of inspection of card readers in the case of Atiku Abubakar & Anor v INEC & Anor supra, with Section 47(2) of the new Act providing for mandatory use of BVAS, an all together different approach is anticipated from the court. 

Furthermore, the Supreme Court in the extant case refused an order for inspection of INEC server on the basis that the Act did not make provision for a server. But a community reading of Section 60(5) of the 2022 Act and Article 38 of the Regulations and Guidelines for the conduct of Elections 2022 is expected to bring in a new dimension to the issue. Section 60 (5) provides: “The presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the commission.” It is in line with the power donated to INEC in the above section, that the commission released the Regulations and Guidelines for the conduct of Elections 2022. Clause 38 of the regulation provides: “the presiding officer shall electronically transmit or transfer the result of the polling unit, direct to the collation system as prescribed by the Commission; use the BVAS to upload a scanned copy of the EC8A to the IReV as prescribed by the commission.”

This Regulation as a subsidiary law is binding on INEC and all players in the election. Hence, substantial compliance with some of these innovations is expected to dominate proceedings at the election petition tribunals.