A LEGAL ANALYSIS OF THE GROUNDS OF THE ELECTION PETITION FILED BY PETER OBI & LABOUR PARTY AGAINST THE DELCARATION AND RETURN OF BOLA AHMED TINUMBU AS THE WINNER OF THE 25TH FEBRUARY 2023 PRESIDENTIAL ELECTION
By Washington Osa Osifo, PhD
INTRODUCTION
In the aftermath of the declaration and return of Bola Ahmed Tinubu of the All Progressives Congress (APC) as the winner of the 25th February 2023 Presidential election, the candidate of the Labour Party –Mr. Peter Obi and his party filed an election petition, challenging same. This is done weeks after the media frenzy and drama orchestrated by him and his supporters over the outcome of the said election. There were bitter complaints and allegations of massive rigging of the election and the denial of his victory by the Independent National Electoral Commission (INEC). They claimed that they won the election but for the failure/refusal of INEC to upload/transmit the results of the election from the polling units and collation centers , real time to its IREV Portal as promised, the results of the election were ab initio “compromised” and “doctored” to favour the APC candidate.
However, a cursory appraisal of the grounds and reliefs of the election petition they filed reveals clearly that they have moved away from the narrative that they won the election but have now shifted their focus to other grounds and are now seeking a cancellation of the election and the nullification of the result declared by INEC.
THE GROUNDS OF THE PETITION
In the petition filed on the 20th of March 2023, the petitioners raised 3 (three) grounds as follows:
(1) That Bola Ahmed Tinubu was at the time of the election not qualified to contest the election.
(ii) That the election of BAT was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2022.
(iii) That BAT was not duly elected by the majority of lawful votes cast at the election.
In the particulars of the grounds of the petition, the petitioners supplied these facts in support of each grounds:
(a) Non-Qualification:
In support of this ground, the petitioners alleged that BAT was not qualified to contest the said election because, firstly, he was purportedly convicted and sentenced in October 1993 to a penalty of a fine of $460,000.00k (Four Hundred and Sixty Thousand Dollars) for an offence involving dishonesty, namely narcotics trafficking by a Court in the United States. In support of this leg of this ground, the petitioners pleaded the following documents:
(1) Verified Complaint for Forfeiture submitted to the Court the Attorneys and Court Officials at the material time.
(2) Stipulations and Compromise Settlements of Claims to the Funds held by Heritage Bank and CitiBank.
(3) Decree of forfeiture as to funds held by First Heritage Bank signed by the issuing Judge at that material time.
The petitioners concluded that on the basis of the doctrine of “wasted votes” , if the tribunal pronounces that BAT is disqualified, the petitioners who would have supposedly established before the tribunal that they had the requisite votes would be declared the winner of the said election.
On the second leg, the petitioners contend that the Vice-Presidential candidate of the APC at the said election –Senator …was guilty of “double nomination” by his party , because at the time he filed the requisite INEC forms to contest as the Vice-Presidential candidate, he was still listed with INEC as a Senatorial Candidate for Borno Central Senatorial District of Borno State for the same election
ANALYSIS OF THE GROUND OF NON-QUALIFICATION.
Clearly, this ground of the petition, especially the particulars in support thereof are bereft of material facts and are not supported by law and even logic. They are frivolous, watery and unsustainable in the petition. Firstly , in dealing with the alleged non-qualification of BAT. It is clear that he was eminently qualified to contest the said election , having satisfied the criteria set out in section 131(a) – (d) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended). Furthermore, it is crystal clear that BAT does not suffer from any of the disqualifying factors as indicated in section 137 of the Constitution.
Although, the petitioners did not specifically plead the specific ground of disqualification they are referencing the forfeiture order of the US Court, it is inferable that they are anchoring same on section 137 (1 (d) and (e). For the sake of clarity, these sub-sections are set out as follows:
Section 137: “ A person shall not be qualified for election into the office of the President if:
(d)he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or for any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal
Or
(e) Within a period of less than ten years before the date of the election to the office of the President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of contravention of the Code of Conduct.
From the tenor of these sub-sections, it can be surmised that before a person aspiring for the office of the President can be disqualified on this sub-ground, the following elements must be present:
(i) There must be a criminal proceedings involved.
(ii) There must be an indictment by a court or tribunal of competent jurisdiction.
(iii) The court or tribunal must be one domiciled in Nigeria.
(iv) The criminal proceedings must culminate in the conviction and sentence of the person.
(v) The sentence could include a term of imprisonment or a monetary fine.
(vi) In the case of convictions and sentence in respect of dishonesty, fraud or a contravention of the Code of Conduct, the conviction and sentence must not be more than ten years pre-dating the date of the election.
THE US COURT FORFIETURE ORDER IN FOCUS
Accordingly, having regards to these elements listed above, it is now pertinent to examine the US Circuit Court order of forfeiture allegedly made against BAT and for which the Petitioners have premised their claim for his disqualification.
Even on a cursory examination of the US Court order as pleaded by the petitioners, it is obvious that it does not share or have any of the six elements/features outlined above. Therefore , assuming though not conceding that there was indeed such an order of forfeiture made in October 1993 against BAT, it will not suffice as a disqualifying factor by the tenor of section 137 (1) (d) & (e) above for the following reasons:
(a) The said proceedings from all intent and purposes is not a criminal proceedings and therefore there was no indictment as alleged by the petitioners. Clearly, it was a “forfeiture “ proceedings and it was solely targeted at the assets or funds of the named defendant in the proceedings. These funds or assets were held by the Banks that were the defendants /respondents in the proceedings. From the gamut of the order, it is abundantly clear that it was a civil proceedings in which BAT was not referenced as a defendant neither was there any evidence of his arraignment and indictment from the proceedings. A forfeiture proceedings is not a criminal proceedings. According to the Webster Online Dictionary, a “Forfeiture Proceeding” or “Order” is a civil proceedings against property which is derived from criminal activities or proceeds of a crime. Whereas, a criminal proceeding for forfeiture is contingent on the conviction of the owner of the property and it is directed at him personally, a civil forfeiture is directed at the property or goods, it is a right in rem. Clearly, the U.S Court order pleaded by the petitioners is clearly a civil forfeiture proceeding.
According to the Black’s Law Dictionary, eighth edition, indictment is the “formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person”. It follows therefore that “indictee” is a person who had been indicted or one officially charged with a crime. On the other hand, “indictor” is the person that caused another to be indicted. Indictment could either be by a grand jury or prosecution by information.
According to Richard Alexander and Sheldon Portman, “the origins of the institution of the grand jury are obscure. In some form it was found early in all the Teutonic peoples, including the Anglo-Saxons before the Norman Conquest. Forms of the grand jury have also been traced in Scandinavian countries where jurors came to determine both law and fact. The grand jury originated in Anglo-American law with the summoning of a group of townspeople before a public official to answer questions under oath, a system of inquiry used for such administrative purposes as the compilation of the Domes day Book of William the Conqueror”.
The indictment by grand jury or prosecution by information later found its way into America where it has since been modernized and constantly updated. The main duty of the grand jury is to examine the records or witnesses, or both, as presented by the prosecuting attorney and come to a conclusion as to whether persons accused of crime ought to be tried or not. This they do under the advice of the District Attorney. In many cases they are, in whole or in part, composed of persons ignorant of the law; and in a majority of cases, if the District Attorney tells them that the evidence is sufficient to convict they indict, and on the contrary, if he tells them the evidence is not sufficient, they do not indict. How it works is that the State or the Prosecuting attorney gathers 12 laymen in a place and inform them that someone had committed a crime. He shows them documents and other evidence to support that claim and also to convince them that if the case goes to trial, he could secure a conviction against the accused based on the strength of available evidence and credibility of witnesses etc. If the grand jury is sufficiently convinced, then they return a verdict of indictment against the suspect or that accused person. The accused is then later notified of the indictment and given the right to challenge it altogether or defend himself in a Court of law. Put in a layman’s language therefore, an indictment is nothing more than mere declaration of intention by the State or the prosecuting attorney to prosecute someone for “alleged” violation of the law.
The United States of America is one of those jurisdictions of the world where indictment has being used. Even here, the evolution and practice of indictment has been subject of debates and constantly under review with the ultimate goal of ensuring that it is not abused. As part of that effort, it has long been established that there must be “probable cause” before anyone can be indicted. Probable cause means that there is reasonable ground to suspect that a person has committed a crime.Under the Fourth Amendment, probable cause amounts to more than mere suspicion. This means that in order to return a true bill of indictment, twelve (12) or more State grand jurors must find that probable cause exists for the indictment and vote in favor of the indictment. Even with the indictment, the accused must still be prosecuted and found guilty by competent courts of law.
Furthermore, except with specific rule or law to the contrary, an indictment must meet other requirements to be valid or adequate. For example, every element of the offence charged must be proven, and failure of indictment to detail each element of charged offense generally constitutes a fatal defect.
See Almendarez-Torres v. United States, 523 U. S 224, 228 (1998); United States v. Cook, 17 Wall. 168, 174 (1872). This was why the United States Court of Appeals for the 9th Circuit in United States v. Resendiz-Ponce (No. 05-998) 425 F. 3d 729 stated that “ an indictment’s omission of an essential element of the offense is a fatal flaw that is not subject to mere harmless error analysis”. While dissenting with the rest of the justices of the United States Supreme Court, Justice Scalia also stated that “it is well established that an indictment must allege all the elements of the charged crime. As the Court acknowledges, it is likewise well established that “attempt” contains two substantive elements:
(1) the intent to commit the underlying crime, and
(2) the undertaking of some action toward commission of that crime... It should follow then, that when the Government indicts for attempt to commit a crime, it must allege both that the defendant had the intent to commit the crime, and that he took some action toward its commission. Any rule to the contrary would be an exception to the standard practice”.
The need for the indictment to charge essential elements of an offense is so strict that the defect could not be cured by the trial court by amendment or through jury instructions. In fact, the Supreme Court of United States has stated that “the very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Russell V. United States, 369 U. S. 749, 771, 82 S. Ct. 1038, 1051, 8 L. Ed. 2d 240 (1962) (citing Stirone V. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 4 L. Ed 2d 252 (1960). To allow a prosecutor or Court to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection that the grand jury was designed to secure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him”.
See cases of Victor Attah v Godswill Akpabio (supra), Rasheed Ladoja v Alao Akala (supra)
(b)Secondly , although , it is not debatable that an order of “forfeiture” is a form of penalty, it is certainly not a “sentence” or “fine” as contemplated by section 137 (1) (d) & (e) aforesaid. In so far as the proceedings was not a criminal proceedings, there was no indictment or conviction shown on the face of the said document pleaded by the petitioners. If there is no indictment and conviction, then there is no sentence. In addition, the Webster Online Dictionary equally defines a “fine” as the most common form of punishment for an offence given by the criminal courts. Similarly , the Administration of Criminal Justice Act defines a “fine” as a sentence imposed by the Courts or tribunals after the successful prosecution and conviction of a person charged with an offence and before a court of competent jurisdiction in Nigeria
See also Abubakar Atiku v A.G of the Federation (supra) on the meaning and scope of an indictment.
(c)Thirdly and most importantly, the forfeiture order under reference was issued by a court in the U.S. Clearly, the U.S circuit court is not a “court” or “tribunal” in “ Nigeria” for the purposes of section 137 (1) (d) & (e). It is submitted that a community reading of sub-sections (d) and (e) aforesaid and on the basis of even a literal interpretation will reveal that it is only a conviction and sentence by a court of competent jurisdiction in Nigeria that will suffice for the purpose.
Therefore, assuming without conceding that the proceedings and order of the U.S Court is criminal in nature and involves a conviction and sentence, it is still not tenable since it was issued by a court outside Nigeria. What is more, the petitioners pleaded no fact to show that the said order issued in October 1993 was ever brought to the attention of Nigerian authorities nor was it registered in Nigeria for the purpose of its enforcement in the Country. This is more particularly so, as BAT who is supposed to be the subject matter of the said order, contested for and was elected and sworn in as the Executive Governor of Lagos State in 1999, just six years after the purported indictment. We submit that by the express provision of section 4 of the Foreign Judgment (Reciprocal Enforcement) Act, Cap F36 LFN 2004, all foreign judgments must first be registered with the appropriate registry of a High Court in Nigeria before they can be enforced. It is further provided that an application for the recognition of such a foreign judgment must be made within 12 months after it has been delivered. See generally Andrew Mark Macaulay v Raiffeisen Zentral Bank of Austria (2009) NWLR (PT. 1149) 756, Hayden Petroleum Ltd v Planet Maritime (2018) LPELR-45553 (CA)
Accordingly, since there is no evidence of the registration of this judgment in any superior court or record in Nigeria till date and the petitioners have not pleaded or led any evidence of such a registration, it is safe to conclude that it was not registered in the country. Accordingly , since it is almost thirty years since October 1993 when the said order for forfeiture was issued, it has by the reason of its non-registration elapsed by effluxion of time.
(d)The other crucial point that negates the probative value of the U.S Forfeiture Order under reference is that it was issued in October 1993 almost thirty (30) years before the election of 25th February 2023 that produced BAT as the President –Elect. Specifically, section 137 (1) (e), provides that if the conviction and sentence is in respect of an offence involving dishonesty, fraud or contravention of the Code of Conduct Bureau, it must not be more than ten years preceding the date of the election. Clearly, from the nature of the “forfeiture order” it is a penalty for dishonesty and fraud. Therefore, assuming though not conceding that there was indeed a conviction and sentence against BAT by virtue of the forfeiture order, such an order has equally lapsed by effluxion of time. Therefore, as at the moment, the “order” lacks no legal potency and it is no longer cognizable as a disqualifying factor under the 1999 constitution of Nigeria.
THE GROUND THAT ON NON-COMPLIANCE AND CORRUPT PRACTICES
This is another ground of the petition. Here the petitioners adopted the standard format of this ground as provided under section 134 of the Electoral Act. However, subject to the preliminary objection that may be filed by the BAT team on the vagueness, nebulousness of this ground of the petition, it is clear that even if considered on its merit, it will not fly.
This is because, although the petitioners listed some states that they intend to prove that the conduct of the election was tainted with incidences of non-compliance and irregularities , they failed to plead the particulars of these irregularities or malpractices. They also failed to plead material facts that they intend to rely upon in proof of these weighty allegations. It is trite law that allegations of corrupt practices in an election petition, is in the category of pleading the commission of an offence in civil proceedings. Thus, the petitioners herein are fixed with the legal and evidential burden to prove these allegations beyond reasonable doubt.
See Akin Omoboriowo v Adekunle Ajasin (1984) SCNLR 108, Sergaent Awuse v Peter Odili (2005) 16 NWLR (PT.952) 416 (C.A), Buhari v Obasanjo (2005) 13 NWLR (PT.941) 1,
Specifically the Supreme Court in Mahaija v Gada (2017) LPELR-42474 (SC), held as follows:
"my understanding of subsection 5 of section 31 is that the false information complained of must relate to the Constitutional requirements for election into the office in question. In this case, the requirements of section 177 (b) &(c) of the Constitution. The appellant therefore had the onus of satisfying the Court below that not only the testimonial was forged but also that the 1st respondent does not possess the educational qualification stipulated in Section 177 (c) of the Constitution. He failed woefully on both counts. Having alleged forgery, which is a criminal offence, the onus was on him, to establish that fact beyond reasonable doubt notwithstanding the fact that the allegation was made in civil proceedings. I agree with the Court below that the appellant failed to tender any evidence, such as a disclaimer from the authority that issued the testimonial, stating that it was forged. Not only must it be proved that the document was forged, it must also be proved that it was the 1st respondent who forged the document”.
See also Atiku Abubakar & Anor v INEC & Anor (2019) CA/ PEPC/002/2019
In addition to this, the Supreme Court has since resolved the issue that allegations of corrupt practices in an election must be proved by the petitioner from one polling unit to the other. There is no room for speculations and conjectures, only the petitioners’ polling unit agents that witnessed the incidences of the alleged malpractices or corrupt practices can lead evidence on them.
See Ocha v Elechi & Ors (2012) 13NWLR (PT. 1317) 330 at 359, Buhari v INEC (2009) 7 WLR 1 at 187, Uchechukwu v Okpaleke (2010) LPELR-5041 (CA) at 40-41
Accordingly, unless the petitioners are about to assemble all the polling units agents that acted for it across all the polling units in the states they have referenced in this petition, they are bound to fail. More importantly, the petitioners have not been able to give specific evidence of the nature of these corrupt practices/malpractices. They have not tied any figure to over-voting in these specific polling units, neither have they pleaded specific figures that were inflated as votes to the respondent (BAT). They have also failed to plead and lead evidence on any specific irregularities in the polling units in the listed states that are so monumental and fundamental as to substantially affect the outcome of the said election. Clearly , their failure to specifically plead and lead evidence on these issues is fatal to the petition.
See Omisore v Aregbesola (2015) 15 NWLR (PT. 14820 205 at 298
THE ALLEGATION OF IRREGULARITY BASED ON THE ALLEGED NON-UPLOADING/TRANSMISSION OF RESULTS
In the entire gamut of paragraphs 33 -78 of the petition is suffused with verbose and windy pleadings on how the Electoral Act and INEC Regulations and Guidelines for the Conduct of the 2022 elections made it “mandatory” for the commission to upload and transmit results collated at the polling units to the IREV Portal. The petitioners went further to plead facts as to how INEC at various formal media assured all that the results of the 2023 elections will be uploaded and transmitted real time to its cloud central server IREV. The petitioners went on to plead copiously the provisions of the Electoral Act 2022 and its Guidelines and Regulations for this purpose.
However, what the petitioners have not been able to prove is whether INEC failed/refused to upload and transmit the said results to IREV or that it was done but not real time or was done belatedly. Apart from the allegations with respect to Rivers and Benue States, the petitioners could not lead direct and credible evidence on polling units by polling units basis, how the delay in the said uploading and transmission of the results as alleged , substantially affected the outcome of the results. We submit that it is trite law that unless it is established that the incidences of irregularities substantially affected the outcome of an election, it would not be a ground for nullifying it.
See section 135 (1) –(3) of the Electoral Act 2022.
See also Omisore v Aregbesola (supra), C.P.C v INEC (2011) 18 NWLR (PT. 1482)205 at 298
We submit that assuming though not conceding that INEC failed/refused to upload/transmit the results real time as alleged, it is humbly submitted that it is not mandatory on INEC to electronically upload and transmit polling units results as well as collated results in order to validate them. Electoral Act did not make the “transmission “of results by INEC at any stage of the election and collating process a mandatory requirement. Additionally, the Act did not make the electronic “transmission “ of such results a pre-condition for the validity and acceptability of such results. Rather, on the contrary, what the Act emphasized was the physical sorting of ballot papers after voting, the counting of the votes scored by the respective parties/candidates and the entering of these results into the appropriate Forms EC8 Series. Specifically, at the level of the polling unit, what is required is for the presiding officer to enter the respective votes of the parties into the requisite Form EC8A, announce loudly the said result and thereafter paste same in a conspicuous place at the said polling unit. The reference to the “transmission” of results thereafter was couched in a manner consistent with record keeping, protecting the integrity of the said Form EC8A and in the overall pursuit of transparency and credibility of the process. Specifically, section 60 (1) – (6) of the Act surmised the steps to be taken at the close of polls at the polling unit for the counting and publication of the results. There is no reference to the transmission of the results as a pre-requisite. It is trite law that the express mention of the specifics means the exclusion of anything not so mentioned (Orius Exclusio Rule). Therefore , the ‘transmission” of the results at the polling unit cannot be read into this section by anyone ,including INEC. Furthermore , section 64 (4) ( a)-(b) of the Act dealing with the power of a Collation Officer, only mandated him/her to use the BIVAS to confirm the number of accredited voters as recorded therein with the number of votes recorded for the parties. This is however in cases where there is a discrepancy between the number of accredited voters and the number of votes scored by the political parties.
Just as it was the case with the accreditation of voters, the subsidiary Rules and Guidelines for the Conduct of the Elections, made more detailed and specific provisions on the transmission of collated results at the elections. Although, the entire gamut of paragraph 35 (a) (i)-(vi) of the Regulations merely adumbrated the provisions of section 60 of the principal Act, it is paragraph 38 that deals directly with the issue of transmission of results. Specifically, it provides thus:
Upon the completion of the polling unit voting and results procedure, the Presiding Officer shall:
(i) Electronically transmit or transfer the result of the Polling Unit direct to the collation system as prescribed by the Commission.
(ii) Use the BIVAS to upload a scanned copy of the EC8A to INEC Result Viewing Portal (IReV), as prescribed by the Commission.
(iii) Take the BVAS and the original copy of each of the forms in tamper evident envelopes to the Registration Area/Ward Collation Officer , in the company of security agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Center.
Clearly, from the opening statement in paragraph 38 above, it is deducible that transmission comes after the voting counting and publication of the results at the polling units has been completed. It was not intended or designed to be a condition precedent for the validity of the results properly documented in the requisite Form EC8A and which was already published at the polling unit. What is more, what is “transmitted’ is a scanned copy of the said Form EC8A. In this context, a scanned copy is secondary copy of the original document i.e Form EC8A. Thus, it is therefore arguable that where there is no transmission of the results in form EC8A , but the results in form EC8A already distributed to the party agents, security agents and already published are available, the results remain valid.
The petitioners have admitted that INEC subsequently uploaded the said results, but they now claim that it deliberately uploaded “ blurred” copies of the said results on IREV. The crucial question is, what happened to the carbon copies of the requisite FDORM EC8 series given to the polling unit and collation agents of the petitioners? Why the fixation on uploaded/transmitted version of the same results? Clearly , in the entire gamut of paragraphs 33-78 of the petition, the petitioners could not reveal polling units by polling units, how the results subsequently uploaded on the IREV Portal was different from the copies in their possession. We submit that the legal and evidential burden rests on them to use the certified true copies of these results to prove strictly if the figures therein are different from the figures in their carbon copies. They are equally enjoined to prove if there was any cancellation/ alteration in the said FORM EC8 series to support their vague and nebulous allegation of non-compliance and irregularities. We submit that this allegation stands unproven.
See Nyeson Wike v Dakuku Peterside (2016) 7 NWLR (PT. 1512) 452 at 505, Omisore v Aregbesola (supra)
(d) The contention that BAT did not satisfy the constitutional requirements to be declared the winner of the election.
One of the sub-grounds of the petition is that BAT did not score the majority of lawful votes in the said election. Allied to this, is the claim that he did not score up to 25% of the total votes cast in 2/3 of the 36 states of Nigeria and the F.C.T Abuja. In support of this sub-issue, the petitioners construed section 134(2) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) as making it incumbent on a successful candidate for election into the office of the president to score 25% of 2/3 of 36 states, which is 24 states in addition to specifically and separately scoring 25% of the total votes cast in the F.C.T Abuja. They contend that the preposition “and” in section 134(2) (b) of the Constitution should be construed as disjunctive and not conjunctive. They therefore argue that since BAT did not score up to 25% of the total votes cast in the F.C.T, Abuja, he did not fulfill the constitutional requirements and ought not to have been declared and returned as the winner of the said election.
Perhaps, this is one of the most pedestrian ground of the petition. This is because by virtue of section 299 of the Constitution, F.C.T Abjuja is granted the status of a state in the federation. Therefore, to that extent, for the purpose of section 134(2) (b) of the said constitution, F.C.T Abuja is treated as the 37th state in the federation.
Furthermore, beyond the provision of section 299 of the Constitution, even on a literal and mischief rule of construction, it is inconceivable that the drafters of the 1999 Constitution could have contemplated that the F.C.T Abuja would be given a higher status than other states in the federation. We submit that a community reading of sections 299 and 134(2) (b) of the constitution would reveal that the most reasonable and appropriate interpretation is that F.C.T is the 37th state for this purpose.
See Gani Fawehinmi v Babangida & Anor (2003) LPELR-1255(SC), Bakari v Ogundipe (2021) 5NWLR (PT.1763) 1 SC. Baba-Panya v President, FRN (2012) 15 NWLR (PT.1643) 423.
More specifically, it will lead to manifest absurdity for Courts to insist that a candidate like BAT that scored 25% of the total votes cast in almost 28 states to be saddled with the additional burden of scoring 25% of the total votes cast in the F.C.T before he can be so declared as the winner of the election. We submit that on the basis of the mischief rule, section 134(2) (b) was introduced for the purpose of making the geographical spread of the votes garnered by a candidate for election to the office of the president in addition to his score of the plurality/majority of the votes cast at the election. The idea was that an elected president should enjoy the support through the votes of a reasonable spread of Nigerians and not gather his votes from a particular region (s) or even a particular ethnic stock or tribe in the Country. This was obviously to stem the tide of ethnic /regional politics witnessed in the politics of the 1st republic, when regional tigers like Chief Obafemi Awolowo of the Western Region, Chief Nnamdi Azikiwe of the Eastern Region and Sir Ahmadu Bello of the Northern region held sway. Thus, with the advent of the 1979 Constitution and with the adoption of a presidential system of government, this approach was adopted. As a matter of fact, the legislative intention behind section 134 (2) (b) above was well analysed by the notable Professor of Constitutional Law and Constitutionalism, Professor B.O.Nwabueze, in his celebrated text “The 1979 Presidential Constitution of Nigeria”
Therefore, stretching this arguement to insist that scoring 25% of the total votes cast in the F.C.T is an additional requirement would mean that even if a very popular candidate scores 25% of the total votes cast in the 36 “states” of the federation but failed to score same in the F.C.T Abuja, he would not be elected. That is most outlandish and should be rejected by all reasonable men and women, especially the Justices of the Court of Appeal (Presidential Election Petition Tribunal).
CONCLUSION
Whilst awaiting the full trial of this election petition and the volume of oral and documentary evidence that would be led by the respective parties in proof of their case, it is safe to conclude that the petitioners have an uphill task proving their wild allegations as replete in the grounds of the petition.
Princewashington@yahoo.com.
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