Newsry news
27 July, 2023
By Kunle Adeloye
On March 1, 2023 the Independent National Electoral Commission (INEC) at about 4:00am declared the candidate of APC Asiwaju Bola Ahmed Tinubu and Alhaji Kashim Shettima as the winner of the 25 February, 2023 Presidential Election. Both men were sworn-in and inaugurated on May 29, 2023 as President and Vice-president respectively.
However not satisfied with the outcome of the election, the candidates of People’s Democratic party (PDP), Alhaji Atiku Abubakar and that of the Labour party (LP), Mr. Peter Obi alongside the Allied People’s Movement (APM) filed separate petitions at the Presidential Election Petition Tribunal (PEPT) sitting in the premises of the Court of Appeal in Abuja.
The Allied Peoples Movement (APM) through it’s lawyer Mr. Andrew Malgwi SAN prayed the court to sack President Bola Ahmed Tinubu and withdraw the certificate of Return that was issued to him by INEC. It’s grouse is on the allegation that the Vice president Senator Kashim Shettima was nominated twice by the APC for different elective positions.
On their part, both the candidates of PDP and that of LP separately approached the Presidential Tribunal to disqualify the candidate of APC on the ground that President Bola Ahmed Tinubu was at the time of the election not qualified to contest the election owing to criminal forfeiture judgment against him for the sum of Four Hundred and Sixty Thousand dollars ($460, 000) for narcotics related crime (Proceeds of crime) in the United States.
In the same vein, they also called for his disqualification based on his acquisition of dual citizenship of Nigeria and Guinea, having voluntarily acquired the citizenship of the Republic of Guinea and presentation of forged documents to the electoral body.
Both Alhaji Atiku Abubakar of PDP and Mr. Peter Obi of LP called for cancellation of the Presidential Election and demanded for a Rerun on the ground that President Bola Ahmed Tinubu did not score the constitutional mandatory 25% of lawful votes cast in Federal Capital Territory (F.C.T) Abuja.
Another ground they canvassed for cancellation of the election and called for Rerun is that the election was conducted in substantial non-compliance with the Electoral Act 2022 (as amended). This is specifically in the area of wilful refusal of INEC to deploy Electronic collation, transmission and upload to IREV as provided by the Electoral Act 2022 (as amended).
The PDP candidate additionally asked the Court to declare him as the duly elected president of Nigeria as he claimed that he polled majority of lawful votes across the Federation and met the constitutional requirements to be so properly declared.
Now that all the parties to the petition have submitted their written addresses to the Lord justices of the Presidential Election Petition Tribunal (PEPT), we and the whole world are awaiting the judgment.
The palpable fear the people are having is the ability of the justices to deliver judgment without fear or favour. The experience of the past where judgment are based on technicalities have been widely condemned as making mockery of the judiciary and encouraging impunity in our democracy.
A legal giant Mr. Ebun-olu Adegboruwa SAN once complaint bitterly in his piece he titled “The Evils of Technical Justice” as written by one M.J. Anthony in Business Standard of 20 April, 2014 that Technicalities should not defeat Justice. Let me quote the case in question and the judgment as delivered by the Supreme court.
The Supreme Court has stated that procedural defects and irregularities, which can be cured, should not stand in the way of justice, in a case of cheque bouncing. In this case, Haryana State Coop. Supply and Marketing vs Jayam Textiles, the federation supplied cotton bales to the company. The four cheques in payment for the purchase bounced for want of sufficient funds. The federation filed a complaint under the Negotiable Instruments Act.
The magistrate dismissed it on the ground that the federation had not produced the authorisation of its Board of Directors to the official who filed the complaint. The federation appealed to the Madras High Court, but it dismissed the appeal again on the ground that the person who filed the complaint had no proper power of attorney. On appeal, the Supreme Court held that the courts below were wrong for insisting on technicalities. It remitted the case to the trial court where the federation can show the authorisation which it had failed to do earlier. Commenting on the technicalities relied upon by the courts below, the Supreme Court stated that “procedure, a hand maiden of law, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use.”
Let me share with you the intriguing facts of the case of Boniface Ebere Okezie & 3 Ors. v. Central Bank of Nigeria & 5 Ors. (2020) 15 NWLR (Pt.1747) 181. So it started on 14th August, 2009, when Mallam Lamido Sanusi, then Governor of Central Bank of Nigeria, CBN, issued an order, removing all the Executive Directors of Union Bank of Nigeria, UBN, and thereafter appointed Mrs. Funke Osibodu and others, to replace them. About N120-Billion was then injected into the UBN, on the grounds that it was weak, undercapitalized and/or insolvent. These actions were well publicized, with a threat to turn UBN over to the Nigerian Deposit Insurance Corporation or sell it outrightly, to foreign investors. As a result of the declared crisis in UBN, its erstwhile Directors who had been removed from office were handed over to the Economic and Financial Crimes Commission, for investigation.
Aggrieved with the actions of the CBN Governor, some of the shareholders of UBN filed an action at the Federal High Court, Lagos, under section 303 of the Companies and Allied Matters Act, seeking leave of court to challenge the actions of the CBN Governor, on behalf of UBN, by derivative action. In the Originating Summons, the Plaintiffs did not raise any questions for answer, but set out their claims in declarations, injunctive reliefs and damages. In response to the Originating Summons, the Defendants filed a notice of preliminary objection, challenging the competence of the suit and the jurisdiction of the court to hear and determine the action of the Plaintiffs. The preliminary objection was heard and upheld by the trial court on the ground that the Originating Summons did not contain questions for determination. The appeal to the Court of Appeal was dismissed as lacking in merit, whereupon the Plaintiffs further appealed to the Supreme Court. The Apex Court wasted no time in chastising the trial court and the Court of Appeal, for clinging to technicality to rob the Plaintiffs of justice. The Court held as follows:
“There is need to keep the focus on the substantiality of justice and so each of these forms is valid as an originating summons for the determination of any question of right or of construction under an enactment.”
Justice does not reside in the form of the processes of the court. Where there are sufficient provisions in the Rules of the court to sustain an action, the rules of natural justice demand that parties should be heard with a view to resolving their dispute once and for all. It is in the interest of justice that parties are not shut out prematurely from being heard in accordance with the laid down procedures in the court’s Rules”
Another classical case of technicalities and evil manipulation was in the case of Senator Ademola Adeleke vs Gov. Adegboyega Oyetola in the Governorship tussle of 2018.
A seven-member panel of the court, led by Acting Chief Justice of Nigeria Ibrahim Tanko, slated Friday for judgement on the matter after entertaining arguments from parties on June 17.
The PDP candidate in the September 22 and 27 elections, Ademola Adeleke, filed a petition at the Election Petition Tribunal to challenge the victory of the governor-elect, Gboyega Oyetola, of the APC.
The main election was held on September 22 while a supplementary election was held on September 27 in seven polling units.
The electoral commission, INEC, declared Mr Oyetola winner of the election after the supplementary poll.
Mr Adeleke, who claimed he polled the highest number of votes in the election, asked the tribunal to cancel the victory of Mr Oyetola and declare him the winner of the election.
The Osun tribunal ruled in Mr Adeleke’s favour and declared him the winner of the election. In a split judgment of two to one, the tribunal ruled that INEC was wrong to have ordered a rerun election. It nullified the rerun.
The court also ruled that INEC did not comply with its guidelines on results from 17 polling units.
The tribunal then deducted the results of both parties from the declared total of votes in the affected 17 poling units.
According to the tribunal, the PDP won the election with 254,698 votes, while the APC came second with 253,452 votes.
The tribunal also said that the PDP would still have won the poll even if it had opted to validate the supplementary election.
But in a contrary opinion in May, the Court of Appeal ruled that “the tribunal was in patent error when it set aside the rerun.”
The appellate court, which had also delivered its verdict in a split decision of four to one, ruled that the judge who issued the majority decision at the tribunal, Peter Obiora, was absent on February 6, 2019, when a major discussion on the issue of none-compliance was tabled before the tribunal; and could therefore not have viewed the issue squarely
Another novel case was in the intricacies of Supreme Court judgment in Jegede vs Akeredolu and APC’s caretaker technicalities
The Supreme Court in a slim majority judgment of 4/3 delivered on 28 July 2021 dismissed the appeal of Mr. Eyitayo Jegede and the PDP against the election of Mr. Rotimi Akeredolu as the Governor of Ondo State.
The appeal was founded on the ground that Akeredolu’s nomination as the candidate of the All Progressives Congress (“APC”) was invalid because the Nomination Form was signed by His Excellency, Mai Mala Buni, the Governor of Yobe State who also doubles as the Chairman of the National Caretaker/Extra-Ordinary Convention Planning Committee (“Caretaker Committee”) of the APC.
Jegede’s arguments were premised on the provisions of section 183 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the “Constitution”) and Article 17 of the APC Constitution. The Supreme Court however held that the appeal revolved around Governor Buni, and he was therefore a necessary party to the appeal.
The failure to join Buni as a party was held to be fatal to the appeal and the appeal was dismissed on this ground. In dismissing the appeal, the majority decision did not consider the merits of the arguments on Section 183 of the Constitution and Article 17 of the APC Constitution. The minority judgment of the Supreme Court however agreed with Jegede and held that Governor Buni is not eligible to hold the office of Caretaker Chairman of the APC by virtue of Section 183 of the Constitution and Article 17(iv) of the APC Constitution and allowed the appeal.
The question is of the set of rules guiding elections which includes the 1999 Constitution (as amended), Electoral Act 2022 (as amended) and the Evidence Act on one hand and technicalities on the other hand, which one should take precedence?
Judgements based on technicalities is not helping our democracy but rather, promoting impunity and gangsterism. For democracy and democratic institutions to be firmly rooted, infractions of law should be adjudicated upon on its merit and not technicalities.
“LET JUSTICE REIGN”
