As Tinubu Wins First Round of Legal Battle…

After over five months of fierce legal battle, the election petition tribunal has affirmed the February 25, 2023 election of President Bola Tinubu, writes Alex Enumah.

The legal battle over the rightful occupant of the number one seat of power in Nigeria temporarily came to an end on September 6, 2023, following the verdict of a five-member election Petition panel that Asiwaju Bola Tinubu was lawfully elected President of Nigeria.

Five out of the 16 contestants at the February 25, 2023 presidential poll had approached the Presidential Election Petition Tribunal for an order nullifying the victory of Tinubu at the poll.

Chairman of the Independent National Electoral Commission (INEC) Professor Yakubu Mahmood, had on March 1, declared Tinubu winner of the presidential poll, on the grounds that he won majority of the lawful votes cast at the polls.

According to the Commission, Tinubu had polled a total of 8,794,726 lawful votes to emerged victorious. He was closely followed by Atiku, with a score of 6,984,520 and Obi 6,101,533 votes to come 2nd and 3rd respectively.

Displeased with the declaration, the five political parties and their presidential candidates which included the Action Alliance (AA), Action People’s Party (APP), Labour Party (LP) and its presidential candidate Mr Peter Obi, Allied People’s Movement (APM) and the People’s Democratic Party (PDP) and its presidential candidate Atiku Abubakar Atiku, had approached the tribunal to argue and prove that Tinubu did not win majority of lawful votes as claimed by the electoral umpire. They submitted that as at the time Mahmood announced Tinubu as winner, collation was ongoing since many of the presidential election results were yet to be uploaded unto the INEC’s Results Viewing (IReV) Portals.

They also accused INEC of manipulating the process to favour the ruling APC and Tinubu.

Besides the grounds of substantial non-compliance upon which the petitioners are seeking the nullification of the presidential poll, others are that INEC violated the law when it declared Tinubu who did not score 25% of votes cast in the Federal Capital Territory (FCT) as winner, in addition to claims that Tinubu was not qualified to contest on account of alleged forfeiture of the sum of $460,000 to the United States of America over alleged complicity in drug related offences.

In addition, they submitted that Tinubu was not qualified to contest the poll because he breached the electoral law when his then Vice president nominee knowingly allowed himself to be nominated for more than one position; lied on oath over his alleged dual citizenship and his academic qualifications.

They had all filed their separate petitions by March 21, the time stipulated by law, but while the AA and APP withdrew their petitions during the pre-hearing session, the LP, APM and PDP had continued all the way till judgment was delivered last week.

In their unanimous verdict, the justices affirmed the election of Tinubu as President of the Federal Republic of Nigeria, shortly after they dismissed the three separate petitions filed by Atiku Abubakar of the People’s Democratic Party (PDP), Mr Peter Obi of the Labour Party and the Allied People’s Movement (APM).

The panel led by Justice Haruna Tsammani haven held that the case of the three petitioners “are devoid of any merit”, said, “I affirmed the return of Bola Tinubu as duly elected President of Nigeria”.

In the over 12 hours judgment, the panel held that the petitioners all failed to prove allegations of irregularities, malpractices, corrupt practices, substantial non-compliance, among others.

According to the justices, Obi, Atiku and APM failed to establish beyond reasonable doubts claims of substantial non-compliance, irregularities, corrupt practices among others. Specifically, they held that neither Atiku nor Obi was able to prove alleged incidents of over voting, manipulation of results and other anomalies in their petitions.

On the issue of alleged non-compliance, the panel dismissed claim by Obi and Atiku that the election that produced Tinubu did not comply with the Electoral Act, 2022, on grounds that results of the election were not transmitted real time to the INEC’s Results Viewing (IReV) portals. It was the position of the Justices that the Electoral Act, 2022 did not say election must be electronically transmitted for collation. They pointed out that Sections 14&18 of the Electoral Act provides for the use of the Bi-modal Verification Accreditation System (BVAS) for the purpose of accreditation of voters, emphasizing that the “IReV is not a collation system”.

While interpreting the use of Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing (IReV) portal, the court said that INEC was not mandated to use BVAS to upload election results to the IReV and that INEC cannot be compelled to transmit election results electronically because it was not captured in the 2022 Electoral Act.

The court also pointed out that only INEC has the right to decide what channels to use in uploading election results.

“By the provision of Section 52 and Section 65 of the Electoral Act, INEC is at liberty to prescribe the manner in which results can be transmitted.

“INEC cannot be compelled to electronically transmit results,” the tribunal held.

On the allegation that INEC deliberately refused to upload results on the IReV in order to favour Tinubu, the Justices, who admitted there were technical glitches in uploading results, concluded that the petitioners failed to prove the exact polling units where election results were not uploaded electronically and how it affected their scores.

Regarding issues of irregularities, malpractices and corrupt practices, the tribunal observed that while the petitioners failed to give particulars of malpractices in their petition, the evidence of the few witnesses called cannot be relied upon having not witnessed alleged acts of irregularities or corrupt practices.

Recall that Atiku had called only 27 witnesses to prove his allegations of irregularities, corrupt practices among others, while Obi had called 13 and APM one.

It was the position of the court that the number of witnesses called by the petitioners were inadequate considering the fact that elections took place in over 176,000 polling units across the country, to which the petitioners claimed their agents monitored.

The tribunal observed that rather than call these polling units agents who witnessed the alleged irregularities and corrupt practices, the petitioners called collation agents whose evidence were at best “hearsay”.

Besides, the evidence of 10 of the witnesses called by Obi were jettisoned by the court on the grounds that their testimonies were not filed alongside the petition on March 21, 2023. Besides, the tribunal in a ruling struck out several paragraphs, exhibits including witnesses statements tendered to establish allegations of irregularities, malpractices against the February 25 presidential election. It was the position of the court that several facts fundamentally required to support the petitions were not provided by Obi and Atiku.

According to the ruling, the petitioners failed and neglected to name places where ballot boxes were snatched, the ways and manners the BVAS machine were manipulated and names of polling boots where alleged malpractices took place. The petitioners who claimed to have polled majority of lawful votes were said to have failed to state in clear terms, the total lawful votes they claimed to have scored.

The Court held that while the petitioners alleged that Tinubu did not score majority of lawful votes they refused to make the perceived lawful votes known in their petitions.

On the alleged rigging in favour of Tinubu by some persons including the Kogi State governor, Yahaya Bello and Chairman of Olamaboro Local Government area of Kogi state, Friday Adejoh, the tribunal held that since the allegations were criminal in nature, failure to join them as respondents in the petition was fatal to the case.

The Tribunal dismissed the allegations of over voting all over Nigeria by the petitioner adding that such pleadings run foul of the law because the specific places where the alleged over voting took place were not mentioned.

On the issue of qualification, the court held that Atiku and PDP did not plead facts in the qualification and disqualification of Tinubu, hence the issue was discountenanced by the court. The issues related to Tinubu’s alleged citizenship of Guinea, academic records, forfeiture of the sum of $460,000 to the US. Atiku had in his reply to Tinubu submitted that he was constitutionally disabled from contesting for the office of President of Federal Republic of Nigeria because he forfeited the sum of $460,000 in a compromise agreement for narcotics related crime (proceeds of crime) in the United States District Court, Northern District of Illinois Eastern Division. Atiku also claimed that Tinubu failed to disclose in his form EC9 that he holds dual citizenship of Nigeria and Guinea, having voluntarily acquired the citizenship of the Republic of Guinea.

But, the tribunal held that Atiku and PDP cannot smuggle new issues not pleaded in their petition on the grounds of non-qualification.

Delivering judgment in the $460,000 forfeiture case against Tinubu in the United States of America, the five-member panel who stated that evidence before them showed that the forfeiture order against Tinubu was in a civil and not criminal matter, held that the petitioners failed to prove that Tinubu was found guilty of any offence involving any act of dishonesty, which required conviction and sentencing.

Justice Tsammani agreed with the respondents that Tinubu was neither arraigned nor convicted in the US over any alleged crime to warrant his disqualification. Besides he pointed out that documents tendered by the respondents confirmed that Tinubu was given a clean bill of health upon an enquiry from Nigeria.

Further faulting the case of the petitioners, the tribunal held that Section 269(1&2), provides that such documents (forfeiture order) must be given under the hand of a Police official and must be accompanied with a certificate showing that the police officer has powers to sign such documents.

Also the tribunal pointed out that even if Tinubu were convicted for the alleged offence, for him to be disqualified from the 2023 election, the purported conviction must take place within 10 years of the election.

Recall that the forfeiture order was made nearly three decades ago.

 On the request for Tinubu’s disqualification on account of the double/ multiple nomination of the Vice President, Senator Kashim Shettima, the tribunal stated that the case of the petitioner having been a pre-election matter ought to be filed at the Federal High Court, not before the tribunal.

It added that even if the tribunal had powers to hear the case, it has already become statute barred, having not been filed within 14 days as prescribed by law.

According to the tribunal, its findings showed that the case of the APM was premised on the alleged unlawful nomination and sponsorship of Vice President Shettima, which ought to be a pre-election matter.

Justice Tsammani, who read the ruling observed that the issue of qualification and disqualification of a candidate is a constitutional matter, adding that the issue of nomination does not flow from the grounds of disqualification as provided for in the Constitution.

In further holding that the suit was incompetent, the tribunal agreed with the respondents that the petitioner lacked the necessary locus standi to file the case in the first place, since it did not participate in the primary election of the APC.

Meanwhile, delivering judgment in the main petition, the panel held that the petitioner failed to prove that Tinubu breached Section 35 of the Electoral Act, 2022, when he nominated Shettima as his Vice, adding that it was the president’s prerogative to choose his running mate.

Besides, the tribunal while pointing out that Shettima did not knowingly allow himself to be nominated in more than one constituency, stated that the case of the petitioner was faulty because Shettima never obtained any nomination form for the position of Vice President not contested any primary election for the position.

In addition, the tribunal held that the issue of alleged double nomination has been dealt with by the Supreme Court which is the final court in the land and as such no other court can adjudicate in it.

“The petitioner failed to prove that Tinubu was not qualified to contest the February 25 presidential election on the grounds of double nomination”, the court held.

However, the unanimous judgment of the tribunal can only bring temporary succour for President Tinubu as both Atiku and Obi, have already indicated decision to challenge the judgments of the tribunal at the Supreme Court. The two former presidential candidates’ lawyers disclosed this shortly after the end of the tribunal’s judgment. Atiku’s lawyer, Chief Chris Uche, SAN, had requested the tribunal to make copy of the judgment available to him to enable his client exercise his right of appeal.

Uche told newsmen that Atiku was convinced that he got judgment at the tribunal but did not get justice in his fight against the alleged malpractices, irregularities and corruption that characterized the February 25 poll, hence, his decision to go on appeal.

Similarly, Livy Uzoukwu, SAN, the lead counsel to Obi confirmed that his client had directed that the judgment be challenged in Supreme Court.

He wondered why the trribunal which ruled against live telecast of proceedings at the hearing of his client’s petition suddenly allowed live coverage of the judgment.