Matters Arising from the PEPT Approbation and Reprobation 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

The more I looked at the Presidential Election Petitions (PEPs), the prayers therein and the evidence or should I say the lack of it presented to support the prayers, the more they looked like a formalised version of a lot what we had read on different social media platforms and argued during dinner table debates! It looked like a wish list, the sum and substance of which was: 1) disqualify President Tinubu and/or Vice President Shettima and declare me the winner of the election based on the election results or 2) if you don’t disqualify them, then those same election results which I wanted you to use to declare me as winner in 1) are bad, cancel the election because of noncompliance and rigging, and run it again. Approbation and Reprobation! The election results are good only if the Petitioners get what they want, but bad if it’s in favour of the Respondents! That is, approving and rejecting an issue, in this case, the election results, at the same time. 

If an election is bad because of rigging, can the disqualification of a party cure the defect of rigging? I think not. If the President and/or Vice President were disqualified, and one of the Petitioners was declared the winner based on the same election results, then nothing is wrong with the election results; but, if the Respondents were not disqualified and the election wasn’t cancelled, something must be wrong with the results! If LP won over 90% of the votes in the South East, and those are some of the figures the LP is bandying to claim its alleged victory, that is fine, and there was no rigging there? But, it becomes rigging for others to have that type of overwhelming victory in their own comfort zones, and impossible that  LP didn’t get up to 25% in those areas? It is against the principles of equity, to approbate and reprobate. In Ajuwon & Ors v Governor of Oyo State & Ors (2021) LPELR-55339 (SC) per Ejembi Eko, JSC, the Apex Court held this: “Consistency is the rule of the game. A party is not allowed to approbate and reprobate on one issue”. Also see the case of FRN v Iweka (2011) LPELR-9350(SC) per Suleiman Galadima, JSC.

I came to the conclusion that Section 135(1) of the Electoral Act 2022 (EA) places the burden of proof on the Petitioner who alleges that he/she was rigged out of victory in an election, and with our large number of 177,000 or so polling units, most Petitioners, especially in the Presidential elections, simply do not prepare well enough to be able to discharge that burden of proof when the need arises. It is less of an uphill task in Gubernatorial or local elections comprising of fewer constituencies, since the number of polling units are much less. See the case of Wike v Peterside (2016) LPELR-40036(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun. 

Nevertheless, there must be a balance. If a high burden of proof is placed on a Petitioner to invalidate an election, then the electoral process must be watertight or close to it, so that allegations of electoral malpractice will be few and far between in any election, and discharging the burden of proof placed on the Petitioner, will be less cumbersome to implement. 

The Role of Polling Agents, Especially to Prove Noncompliance 

The role of a Polling Agent (PA), appointed by each Candidate or Political Party to be their eyes and ears at each polling unit, to ensure that the election is conducted properly and the correct results are returned, is crucial. Whose fault is it then, if knowing this, and knowing that it is already settled in law, that the burden of proof Petitioners have to discharge in order to prove an election petition is that the PAs have to testify, armed with figures, concerning every polling unit they complain about, they still either don’t appoint enough PAs to cover all the polling units in which they will be contesting, or bring them to testify at the Tribunal? See Wike v Peterside (Supra).

Section 48 of the EA empowers a PA to challenge the right of a person to vote, based on the provisions of the EA. Therefore, if underaged voters or foreigners show up at a polling unit in order to vote, this is contrary to Section 12(1)(a) & (b) of the EA, and the PA can challenge this. A PA can demand a recount of votes at his or her polling unit (Section 61 of the EA); after the announcement of the results, the PA is empowered to accompany the Presiding Officer along with the results and election materials to where INEC prescribes that they should be delivered (Section 62(1) of the EA). And, this is why, as eye witnesses, their testimony is required at the Tribunal, in order to prove any allegation of irregularity that emanates from their polling unit.

At the end of the election, each PA should obviously already have his/her own copy of the result sheet, which is an important part of documentation to support the election petition. The question is, why can’t the PAs have copies of their own result sheets immediately submitted in their different wards, ready to be used as evidence, and be ready to testify if so required? It seems like an expensive venture in terms of having to transport the PAs from various parts of the country to Abuja to adopt their statements on oath during the hearing of the Presidential Petition, but considering the amount of money charged by Political Parties for Application Forms for the various elective positions (for the APC Presidential Candidates for example, it was N100 million per application form), the revenue from Form sales running into billions, transporting your witnesses to Abuja is doable. In the case of local elections, this kind of logistics is easier to manage and cheaper in cost, as the Tribunal is situated within the jurisdiction. In Ucha & Anor v Elechi & Ors (2012) LPELR-7923(SC) per Olabode Rhodes-Vivour, JSC, the Supreme Court cited the judgement of Belgore, JSC (as he then was) thus: “It is manifest that an election, by virtue of Section 135(1) of the EA, shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act. It must be shown clearly by evidence, that the noncompliance has affected the result of the election. Election and it’s victory, is like soccer and the goals scored. The Petitioner must not only show substantial noncompliance, but also the figures, to votes that the noncompliance attracted or omitted.…..”. The PA present at the polling unit complained of, who witnessed the anomaly, is the only one that can legally and credibly attest to same. See the case of Buhari v Obasanjo 2005 13 N.W.L.R. Part 941 Page 53; Oke & Anor v Mimiko & Ors (2013) LPELR-20645(SC). 

On this particular issue of noncompliance, Counsel for the Petitioners, being senior Lawyers, are obviously abreast with the position of the law as to how you can prove an allegation of noncompliance, as far as votes are concerned. Why then, was there a paucity of PAs and witness statements on oath to prove noncompliance in the 2023 PEPs? In Ucha v Elechi (Supra), the Apex Court held that “the onus remains on the Petitioners to prove and establish their claims on their own evidence, without relying on the weakness of the case of the Respondents”.

The Rules of Professional Conduct 2023

Section 14(1) of the Rules of Professional Conduct 2023 (RPC) makes it mandatory for a Lawyer to devote his expertise to his client in their best interest, subject of course, to the rule of law, and inform the client where he considers the claim or defence to be hopeless (Section 14 (2)(e) of the RPC). So, where a client instructs you to complain about 18,000 polling units in an election petition, and such client only provides legally acceptable evidence for 20 or even 100 polling units, I submit that this is a hopeless claim, unless of course the chunk of the votes are within those 100 polling units, and the votes in the other 17,900 are negligible. Not likely! What then do you call this kind of behaviour on the part of Counsel, when he/she goes ahead to advance the complaint of 18,000 polling units, knowing that they are bound to fail on this point, since they haven’t met the standard of the rules of procedure or evidence on this point? It is a breach of the RPC. Also see Section 32(3)(e) of the RPC. It is also trite law that a court can only decide a case, based on the admissible evidence presented before it. Knowing that the evidence presented to prove a case is insufficient or doesn’t meet acceptable legal standards to be successful, is it proper for Lawyers, even Senior ones, to then go to town to rile the public, running down the Judiciary with all sorts of allegations, when they are well aware that they themselves have failed to meet the requisite standards of proof? It was rather embarrassing during the delivery of the PEPT judgement, when the Tribunal noted that a Senior Lawyer had endorsed a particular legal principle in the Foreword that he had written in a Book, only to come to the PEPT to argue the exact opposite of the same principle in the Petition!

But, then again, I guess one cannot say that Petitioners should not bring their matters to court, whether their cases are strong or not. It is a right, guaranteed by Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution). Also see Section 24(3) of the RPCon arguing a questionable allegation or defence on behalf of your client, and Part IV of the RPC on Counsel’s relation with the court. Section 74(1) of the RPC provides that a Lawyer who breaches any of the provisions of Chapter 1 of the RPC commits professional misconduct, and is liable to punishment as provided in the Legal Practitioners Act. Though the RPC does not become effective till January 1, 2024, that of 2007 is still effective till the end of this year. 

The fact of the matter is that, Nigerian Lawyers, whether junior or senior, regularly engage in conduct which not only does the RPC not permit, in other countries that take conduct more seriously, they could be sanctioned, disbarred or struck off the roll. A Lawyer is an officer of the court, and therefore, Section 31(1) & (2) of the RPC provides that a Lawyer must treat the court with respect, dignity and honour, and where the Lawyer has a proper ground for complaint against a judicial officer, such complaint shall be made to the appropriate authorities. Instead, Senior Lawyers have made it a habit to jump on  social media to insult Judges, fling invectives and drag the Judiciary into disrepute, embarrassing the good judicial officers who do not deserve this kind of treatment and tarring them with the same brush of odium, opprobrium and contempt. This is not right. 

Conclusion 

What transpired at the 2023 PEPT, shed plenty of light on different issues – that the EA is inadequate; that the electoral process needs to be better improved, in order to affirm the integrity of elections; that if there is a presumption of regularity of elections conducted by INEC, all its records pertaining to elections must be readily available to all, or at least those who specifically request for them; that many Lawyers’ actions, even Seniors, are not only a breach of the RPC, but amount to professional misconduct, and our disciplinary bodies need to be more up and doing in order to curb this negative trend – for example, not preparing for a case properly; abuse of court process; misleading the client or the court; advancing hopeless claims; openly showing disrespect to the courts and bringing the Judiciary into disrepute by showering invectives and insults on them, especially when cases don’t go their way, to mention but a few. 

In February 2023, a Barrister of the Inner Temple, UK was disbarred for making statements which he knew were untrue and were misleading to the court. In court, he referred to himself as a ‘criminal barrister’ on three occasions when he wasn’t entitled to do so, and made serious allegations against someone in an ex-parte hearing, without proper grounds for doing so. He was found to be in breach of some of the rules of the Bar Standards Board Handbook. We go on about lack of accountability in governance; it seems that we may have the same problem within our profession.