Twelve days after the Presidential Election Petition Court (PEPC) affirmed the election of President Bola Tinubu of All Progressives Congress (APC), the candidates of Peoples Democratic (Party), Atiku Abubakar, and Labour Party (LP), Peter Obi, on Tuesday, presented to the Supreme Court reasons the decision of the tribunal could not stand.
After faulting the tribunal’s refusal to void the poll over the “doctrine of legitimate expectation”, Atiku filed 35 grounds of appeal, including the fact that the tribunal erred in its decision on electronic transmission, the 25 per cent votes in the Federal Capital Territory (FCT) and, as such, requested a rerun between him and Tinubu alone.
Obi, a former governor of Anambra State, who filed 51 grounds of appeal, wanted the apex court to allow his appeal, set aside the tribunal judgement, and grant reliefs sought in his petition, either in the main or in the alternative.
A five-member panel of the tribunal had on September 6 upheld the declaration of Tinubu as winner of the February 25 presidential election. The panel, in a unanimous decision, held that Atiku as well as other petitioners against the February 25 presidential election were unable to substantiate their allegations against the poll conducted by the Independent National Electoral Commission (INEC).
The panel led by Justice Haruna Tsammani, in its judgement, held that the documentary and oral evidence presented before it could not prove claims of irregularities, corrupt practices, non-compliance, among other claims, for which Atiku had asked the court to void Tinubu’s election.
However, dissatisfied, Atiku, who claimed that the lower tribunal erred in law by affirming the outcome of the February 25 poll, asked the Supreme Court to set aside the entire decision of the tribunal.
In addition, he prayed the apex court to, after voiding Tinubu’s election, declare him as the authentic winner of the poll.
Atiku, who came second in the poll, claimed that he, and not Tinubu, won majority of lawful votes cast at the election, and contended that the electoral umpire manipulated the process in favour of Tinubu.
In the Notice of Appeal dated September 18, and filed by his lead counsel, Chief Chris Uche, SAN, the former vice president submitted that the tribunal erred in law by not taking into cognisance the “Doctrine of Legitimate Expectation” regarding the failure of INEC to conduct the election in accordance with its own guidelines and the Electoral Act, 2022.
The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person.
In Nigeria, the doctrine of legitimate expectation demands that a public authority shall respect and apply its stated position or sustained practice in exercising its powers on members of the public.
Expatiating on this line of argument, Atiku told the apex court in ground seven that “the lower court erred in law when it failed to nullify the presidential election held on February 25, 2023 on the ground of non-compliance with the Electoral Act 2022, when by evidence before the court, the first respondent (INEC) conducted the election based on very grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the ‘doctrine of legitimate expectation’.”
Atiku point out that the Electoral Act 2022 made the use of Bi-modal Voter Accreditation System (BVAS) and INEC’s Results Viewing (IReV) portals mandatory in the conduct of the 2023 general election. He added that INEC, through its Chairman, Professor Yakubu Mahmoud, publicly gave guarantees, undertakings, clear and unambiguous representations to candidates and political parties that polling units results were mandatorily required to be electronically transmitted or transferred directly by the Presiding Officers.
He argued further, “There was no evidence before the lower court that the first respondent altered its aforesaid Guidelines and Regulations to remove the said requirement of electronic transmission of the results of the election directly from the polling units to the first respondent’s collation system.”
Atiku submitted, therefore, that INEC “conducted the said presidential election based on the gross misrepresentation to the appellants and the general voting public that the Presiding Officers were going to electronically transmit the results of the said election directly from the polling units to the first respondent’s collation system.
“Contrary to the above unambiguous representations, undertakings and guarantees, the first respondent neither deployed the electronic transmission of election results nor the electronic collation system in the said election, sabotaging the raison d’être for the enactment of the new Electoral Act 2022 and the introduction of the technological innovations.
“Rather than hold the first respondent (INEC) as a public institution accountable to the representations that it made pursuant to its statutory and constitutional duties, which created legitimate expectation on the part of the appellants, the lower court wrongly exonerated the first respondent of any responsibility by holding that the use of the technological innovations to guarantee transparency was not mandatory.”
It was also the appellant’s position that the February 25 poll was “conducted based on very grave and gross misrepresentation and was therefore oppressive to the appellants and, thus, not free and fair, and not in accordance with the principles of the Electoral Act 2022, and not protected by the presumption of regularity, as well as the preamble and the fundamental objectives and directive principles of state policy of the Constitution of the Federal Republic of Nigeria 1999 (as amended) adopted by the lower court”.
Insisting, “The grave misrepresentation negated the legal presumption of official regularity in favour of the first respondent,” Atiku told the apex court that INEC, as a public institution, was not above the law, and not entitled to breach its own regulations with impunity, after clear and unambiguous representations upon which parties had placed reliance and were entitled to legitimate expectation.
According to Atiku, “The said election ought to have been nullified by reason of the said gross misrepresentation by a public institution based upon the ‘doctrine of legitimate expectation’ as applied by the Supreme Court as a policy court…”
Faulting the tribunal’s judgement further, Atiku claimed that the lower court erred in law, when it failed to determine his case with respect to the mandatory verification and confirmation required before the announcement of the results of the presidential election, pursuant to Section 64(4) of the Electoral Act, 2022.
He averred that all the Collation Officers, Returning Officers and INEC Chairman were under a statutory obligation to confirm and verify that the result being collated was consistent with the results directly transmitted from the polling units before making final announcement on the general election.
In ground eight, the former vice president claimed that the lower court erred in law when in its interpretation of Section 134(2) of the 1999 Constitution held that Tinubu did not need to score 25 per cent of lawful votes cast in the FCT. He said the decision of the tribunal that the FCT was like any other state of the federation was misconceived and should be set aside.
He also held that the issue submitted to the tribunal called for the interpretation of the material word “and” in the said Section 134(2), adding that the provisions of the section are clear and unambiguous.
Atiku further argued that the striking out of the evidence of his subpoenaed witnesses was in breach of their rights to fair hearing and was to amputate the evidential limbs of the case of the appellant and peremptorily and technically knock out the case of the appellant.
Atiku maintained that the Supreme Court should nullify the declaration of Tinubu as winner of the presidential election on the grounds that he did not score majority of lawful votes in the February 25 presidential election.
Obi and LP, in their Notice of Appeal filed on Tuesday, faulted the judgement of the tribunal for being against the weight of evidence adduced by the appellants.
The appellants, through their lead counsel, Dr Livy Uzoukwu, SAN, told the apex court that “the learned Justices of the Court below erred in law and thereby reached a wrong conclusion when they found and held they did not in their petition specify the particular polling units where the alleged irregularities and malpractices occurred, or specify the figures of the votes or scores which they alleged have been suppressed, deflated or inflated.”
The appellants submitted that the details of the polling units were contained in the spreadsheets and forensic analysis reports, which they had incorporated and made part of their pleadings by reference.
In another ground of the appeal, Obi and LP argued that the striking out of certain paragraphs in their petition by the court amounted to a blatant denial of their right to fair hearing and occasioned a grave miscarriage of justice.
They argued that the tribunal was wrong when it struck out the witness statements on oath of 10 out of the 13 witnesses on the ground that the statements were filed after the expiration of the period of 21 days prescribed by the constitution.
Obi and LP said the decisions of the Supreme Court and the Court of Appeal, which the PEPC cited in support of the decision, did not apply to the facts of this case. They added that in coming to the above decision, the tribunal refused to follow its previous decisions in many cases, to the extent that a subpoenaed witness needed not file his statement alongside the petition and any such statement filed after the time allowed for filing the petition was competent and valid.
Responding to the position of the tribunal that they did not call enough witnesses to prove allegations of corrupt practices and other irregularities, they claimed that the court below overlooked the fact that the petition ought to be read as a whole to discover the complaint or grouse of the appellants.
They stated, “The court below failed to take into account that the appellants listed the states and specific areas complained about in the petition. The appellants also tendered documents in satisfaction of Section 137 of the Electoral Act 2022.”
They argued that the tribunal was wrong in holding that the appellants did not prove their case of double-nomination of the vice president (Kashim Shettima) because the law and evidence tendered in the court did not support that conclusion.
The duo further claimed that the tribunal misapplied the provisions of Section 137(1)(d) of the 1999 Constitution (as amended) when it reasoned and concluded that Tinubu was not disqualified from contesting the presidential election based on the forfeiture orders made against him by the US District Court.
Obi and LP said the tribunal wrongly read the provisions of Section 137(1)(e) of the constitution (which is a different and independent provision) together with Section 137(1)(d) of the constitution and concluded that there was no evidence that the second respondent had been arrested, charged, and convicted by a court of law to warrant his disqualification from contesting the election.
The appellants further faulted the decision of the tribunal that a winner of the presidential election did not need to score at least 25 per cent of the votes cast in the FCT, Abuja, under Section 134(2)(b) of the 1999 Constitution (as amended). They complained that the PEPC ought not to have relied on the preamble to the constitution to interpret the provision because it was clear and unambiguous.
The appellants stated, “The law is that the preamble in an enactment (including the constitution) can only be resorted to in order to ‘clarify any ambiguity in the words used in the enacting part’; and it ‘cannot’ be used to give a different meaning to the clear wording of a provision.”
Chuks Okocha and Alex Enumah
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