As Tinubu Takes on Atiku, Obi, APM at Supreme Court…

The stage for the final battle over the right occupant of the nation’s number one seat appears set as President Bola Tinubu joins issues with the presidential candidates of the Peoples Democratic Party and the Labour Party in the 2023 polls, Atiku Abubakar and Peter Obi respectively and the Allied People’s Movement at the apex court, writes Alex Enumah.

The 60 days provided by the constitution for the Supreme Court, which is the final court in Nigeria, to resolve and finally put to rest all contentions arising from the February 25 presidential election, started counting from September 18, when the presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar and his party, filed their Notice of Appeal against the judgment of the Presidential Election Petition Court, which on September 6, affirmed the declaration of All Progressives Congress (APC) candidate, Asiwaju Bola Tinubu as President.

Besides the joint appeal of Atiku and PDP, other appeals against the tribunal’s consolidated decisions include that of the presidential candidate of the Labour Party (LP ) and the Allied People’s Movement (APM).

While Atiku and Obi had anchored their respective cases on corrupt practices, noncompliance, irregularities and non-qualification of Tinubu over allegations bordering on forgery, perjury, forfeiture of funds to the United States government over alleged complicity in drug related offences, dual citizenship; the APM’s case was predicated on the alleged unlawful/ double nomination of Vice President KashimShettima.

After nearly 180 days of fireworks at the tribunal, the battle has shifted to the apex court where a seven-man panel soon to be constituted by the Chief Justice of Nigeria (CJN), Justice OlukayodeAriwoola, is saddled with a major task of perusing and evaluating the unanimous judgment of the Justice HarunaTsammani-led five-member panel to determine whether the judgment was in tune with the law and precedents set by the apex court or was in any way “perverse” as claimed by the appellants.

Besides, the seven-man panel is confronted with the challenge of setting new precedents either by accepting fresh and additional evidence of forgery and lying on oath against President Tinubu, or nullifying the February 25 presidential poll, upon their conviction that the poll was characterized by substantial non-compliance, irregularities, corrupt practices, among others, as claimed by the appellants.

While Atiku had in his Notice of Appeal filed on September 18, presented 35 reasons why the apex court should sack Tinubu as President, he had on October 6, requested for permission to tender before the apex court Tinubu’s academic record which was handed to him by the Chicago State University (CSU) following an order of a US court.

Besides the discrepancies in the record and what Tinubu submitted to the Independent National Electoral Commission (INEC) last year in aid of his qualification for the presidential poll, the current registrar of the CSU, Caleb Westberg, under oath, on October 4, stated that the CSU did not issue the Diploma certificate that Tinubu submitted to INEC, for qualification to contest the February 25, 2023 presidential election.

On his part, Obi and the Labour Party had on September 19, raised 51 grounds upon which they believed the apex court can remove Tinubu as President.

However, Tinubu in his replies to the three separate appeals submitted that the appellants have not adduced any strong evidence to warrant the disturbance of the sound judgment of the presidential election tribunal.

According to his lead counsel, Chief WoleOlanipekun, the “tribunal found that the appellants did not prove any of the allegations in the requisite standard of proof”.

Tinubu in his response to Atiku and PDP’s appeal, submitted that from the “clear position of the law”, the appellants have not, “demonstrated any reason why this Honourable Court should disturb any of the findings of the lower court, which, with all modesty are rooted in law and perfect demonstration of scholarship”.

He insisted that INEC was right in declaring him winner having scored a total of 8,794,726 votes as against 6,984,520 votes by Atiku, adding that, “by the statistics, the respondent had one-quarter/25% of the total votes cast in 29 States of the federation. Unfortunately for the appellants, they only managed to secure 25% of the total votes cast in 21 States of the federation, as against the constitutional requirement of 24.67 States, which is the mathematical result of two-thirds of the 36 States of the Federation and the FCT (making 37)”.

Arguing further, Tinubu pointed out that the appellants, who claimed to have won the highest number of votes cast at the election, failed to suggest an alternative score which they considered correct, whether for themselves or the respondent.

Besides, Tinubu stated that failure of the appellants to frontload statements of their witnesses to parties in the suit was fatal to their case and that the tribunal was right in rejecting the witnesses’ statement not frontloaded.

On the issue of alleged non-compliance with the electoral laws specifically as it pertains to the collation and transmission of election results, Tinubu noted that, “while the respondents demonstrated that there is no provision in the Electoral Act and the Regulations which mandates INEC to electronically transmit results, the attention of the lower court was also drawn to the unappealed decision of the Federal High Court in FHC/ABJ/CS/1454/2022-Labour Party v. INEC admitted by the lower court as Exhibit XI as well as the judgment of the Court of Appeal in Appeal No: CA/LAG/CV/332/2023-All Progressives Congress v. Labour Party & 42 Ors., which expressed the spirit and tenor of the relevant statutory provisions to the effect that INEC maintained the prerogative to determine the mode and manner for the transmission of the result of the election.

“This is added to the vivid explanation proffered by INEC, of technical impossibility foisted on it as a result of some form of technological glitch in its system.

“The foregoing and more that will be shown in the body of the brief compelled the lower court to dismiss the entire petition as lacking in merit, while also affirming the election and return of the respondent by INEC as the President of the Federal Republic of Nigeria, having scored the highest number of lawful votes cast and fulfilling all constitutional requirements in that behalf.

“It is against this well considered judgment that the appellants have presented this appeal”.

Tinubu therefore urged the apex court to affirm the decision of the lower court and dismiss this appeal in its entirety, “as same is lacking in merit and bona fide”.

Similarly, Tinubu urged the Supreme Court to dismiss the appeals of Obi and the APM for also lacking in merit.

According to the President, “the entire petition was nothing but a jamboree of sort, which was prosecuted more in the media than in the courtroom”. He submitted that the presidential election tribunal was right when it “dutifully threw away their petition after a

painstaking consideration of same” because the tribunal “is a court of law and not of sentiments”.

It is Tinubu’s submission that Obi and LP failed to prove through the Electoral Act that an election can only be adjudged valid when results are transmitted real time from the polling units to the INEC Results Viewing (IReV) portals, through the use of the Bi-modal Verification Accreditation System (BVAS).

“The court also laid bare the failure of the appellants who claimed to be winners of the election, to statistically demonstrate same to the court by supplying the total number of votes from which they sought a declaration from the court”, Olanipekun added.

On the issue of corrupt practices, Tinubu who observed that the appellants in paragraph 60 of their petition averred that INEC suppressed the actual scores obtained by the petitioners in 18,088 polling units, pointed out that the petitioners did not specify “the actual scores” that was suppressed and the 18,000 polling units.

On the issue of a candidate securing 25% of votes cast in the Federal Capital Territory (FCT) before being declared winner by INEC, Tinubu argued that the lower court rightly concluded at 3790 (vol.6) of the record, when it held that “ the futility and hollowness in the argument of the petitioners that the votes of the voters in the FCT, Abuja have more weight than other voters in the country to the extent of their votes purportedly a veto effect on other votes, is rendered bare.”

They therefore urged the apex court to hold that any election where the electorate exercise their plebiscite, there is neither a ‘royal’ ballot nor ‘royal’ voter; and that residents of the FCT do not have any special voting right over residents of any other

State of the federation, in a manner similar to the concepts of preferential shareholding in Company Law.

“In conclusion, and premised on the foregoing arguments and submissions, we urge the Supreme Court to dismiss this petition which, if considered from every angle, is lacking in merit, substance and good faith…..the appeal arising from a dismissed petition, the main grouse of which is that the presidential election was peacefully conducted all over the country and results of elections carefully and accurately recorded in the various forms EC8As, some unidentified and unspecified results, even in the Appellants brief were not uploaded to the IReV portals.

“The other very remote contention is that the respondents did not score 25% of votes in the FCT. With much respect to the appellants, the petition is more of a fishing expedition, much more evocation of thunder without dews”.

Meanwhile, Tinubu and Shettima pleaded with the apex court to dismiss the APM’s petition for not only lacking merit but also a waste of the court’s judicial time.

“At the risk of sounding repetitive, this appeal ought not to have been filed at all. Assuming the petition at the lower court was filed out of human error or inadvertence, prudence demanded its immediate withdrawal after sighting the judgment of the Supreme Court which settled the sole issue contained herein, assuming any triable issue is therein contained.

“Further, after the judgment of the lower court which was very benevolent to the appellant, a higher degree of prudence demanded that this appeal should not have been filed, even under

compulsion. Applying the language of Okoro, JSC., in PDP v. INEC supra, the appellant has only succeeded in wasting the scarce precious judicial time of this Honourable Court.

“On the strength of the foregoing, we respectfully urge this Honourable Court to dismiss the appeal as lacking in merit and substance.

Additionally, and as earlier demonstrated in this brief, this appeal constitutes a crass abuse of the processes of this Honourable Court, and we urge the court to also dismiss the appeal on this score”, Tinubu submitted.

Recall that the tribunal had on September 6, dismissed the three separate petitions filed by AtikuAbubakar 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 HarunaTsammani held that the case of the three petitioners lacked merit and liable for dismissal.

“I affirmed the return of Bola Tinubu as duly elected as President of the Federal Republic of Nigeria” Justice Tsammani announced after the end of over 12 hours delivery of judgments in the three separate petitions.

The panel in the unanimous judgment had held that the petitioners all failed to prove allegations of irregularities, malpractices, corrupt practices, substantial non-compliance, among others.

Specifically, the three petitioners had sought the nullification of Tinubu’s election on the grounds that the electoral umpire, the Independent National Electoral Commission (INEC) did not comply with the guidelines for the conduct of the 2023 polls as it concerned electronic transmission of election results real time from the polling units unto the INEC’s Results Viewing IReV) portals.

Besides, they submitted that Tinubu ought to be disqualified from the polls on account of the double/ multiple nomination of his then Vice president nominee; alleged forfeiture of the sum of $460,000 to a United States District Court for alleged complicity in drug related offences, his academic records as well as citizenship of Guinea.

Delivering judgments in the petitions, the tribunal held that the petitioners failed to establish beyond reasonable doubts claims of substantial non-compliance, irregularities, corrupt practices amongst others.

Specifically, the tribunal held that none of the petitioners was able to prove alleged incidents of over voting, manipulation of results, among others.

Earlier, the tribunal while dismissing the petition by the APM agreed with the respondents that the petition was incompetent, lacking in merit, and an abuse of court processes on the grounds that the case was a pre-election matter.

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 KashimShettima, which ought to be a pre-election matter.

Justice HarunaTsammani, 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 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.

It is only a matter of time however, for Nigerians and indeed the entire world to know the rightness or wrongness of the decisions of the Justice Tsammani-led tribunal, when the seven-man panel of the Supreme Court delivers its judgment in less than 40 days.

Although, the panel is not yet constituted, speculations are rife that Justice John InyangOkoro may likely lead six of his colleagues on the bench of the apex court.

The bench as at today compromises of only 11 justices inclusive of the Chief Justice of Nigeria (CJN).

The rest, according to seniority include Justices Musa Datijo Muhammad, KudiratKekere-Ekun, John InyangOkoro, Uwani Musa Abba Aji, Helen Ogunwumiju and LawalGarba.

The others are Ibrahim Saulawa, AdamuJauro, TijjaniAbubakar and Emmanuel Agim.

Unconfirmed report has it that the CJN and Kekere-Ekun have both recused themselves to avoid conflict of interest. Of the nine remaining justices, it will be recalled that Justice Garba had in 2019 chaired the five-member tribunal that dismissed Atiku’s petition against former President MuhammaduBuhari in 2019.