When I got the hearing notice that the presidential election petition closing arguments would be on August 1, much as I tried to be there, the ticket cost of $3250.00 (over N2.6million) economy class made me reconsider the value of attendance to monitor the proceedings.
The “adoption of final addresses” as it is called in Nigeria or “closing arguments” as it is called in USA or “jury summation” as it is called in some jury system countries are usually the penultimate phase of the winding up of a trial. It is where the lawyers summarize their IRAC (Issue, Rule, Analysis and Conclusion.)
I read the petitioners’ response to the respondents’ final addresses (which therefore was a blend of both parties points of view) and I could see the end of the matter therefrom.
After the filing of final addresses, the individual justices would have a sense of which is the superior argument and would’ve debated the issues with one another in private conference.
The final addresses allow the lawyers to emphasize their key points and answer questions that the justices may still have. Thereafter the court adjourns for judgment, prior to which the justices will conference again, take a vote on the judgment and then individually write and circulate draft judgments to one another.
As such the verdict of the court is an entirely democratic process. The majority wins but the minority still has the right to express their opinion in a minority judgment.
That minority judgment maybe revived into the majority opinion on appeal to the Supreme Court so the justices must write their dissenting opinion as thoroughly and persuasively as though it were the main majority judgment itself.
Notwithstanding the above, judges who are not writing the lead judgment or the lead dissent, can merely, if they so choice, write a sentence or two stating they “agree” with either the lead majority ruling or the minority ruling. They can either add additional reasons why or simply adopt the reasons stated in the lead or minority ruling.
Over the years, I have written a couple of articles on presidential election trials including “Why Yar’adua Cannot Win” and “Why Goodluck cannot Win.”
Both articles however had a different take from the current one “Why Tinubu cannot win.”
In this article, I will attempt to summarize the key questions to be resolved in the case.
Q1: Does the US drug forfeiture disqualify Tinubu?
In all honesty, I initially was not fully persuaded that this was a disqualifier until I read Judge Bates judgment which made clear the forfeiture was for “narcotics trafficking or money laundering”.
LP’s final address won me over by showing that both the US and Nigeria view forfeiture as a fine or criminal sanction and the latter does not require a formal conviction.
It is apparent that the mischief intended to be corrected by the drafters was to stop persons with a record of financial dishonesty at home and abroad from ascending into office to repeat same. As we saw in the case of Ibori who was a serial thief convicted in UK and in Nigeria prior to becoming Governor, he did the same thing on a grander scale while in office only to leave and be imprisoned again in UK!
Q2: Does forgery and falsehoods on college and national service certificates and Guinean citizenship disqualify Tinubu?
There is no doubt that he furnished a fake certificate, certificates with different names and gender, lied about schools attended, national service and Guinea n citizenship.
The mischief here is no doubt to prevent fraudsters and disloyal elements from entering into government.
Q3: Does Gov Shettima’s double nomination disqualify them both?
The dual nomination overlap for a day appears to be well established. The issue is whether there are any extenuating circumstances in law or whether this is a strict liability infraction the mischief being that one person shouldn’t gamble with political nominations to the detriment of others.
Q4: Did INEC disregard its own guidelines?
It is abundantly proven that INEC violated its own regulations and that these had the force of law. Indeed LP’s brief emphasized that non-compliance by INEC officials in uploading the results is a criminally punishable offense!
The mischief here to be mitigated is the manipulation of physical results to distort election outcomes. Since this was violated, thus undermining election integrity after billions were wasted, I believe referrals for prosecution are in order.
Q5: Was the constitutional requirement met for declaration of a president-elect?
In my opinion, the petitioners’ established clearly that the 25% vote requirement in Abuja was mandatory and INEC itself admitted Tinubu did not have it.
The 25% requirement did not exist in prior constitutions and as such was not added there by mistake but intentionally by the drafters.
Q6: Did the volume of votes produce Tinubu as president-elect?
This was a very intriguing issue. INEC apparently stated and listed 21 states it admitted were won by PDP in its court filings!
INEC via its IREV also showed that Rivers state was won by LP and not APC as declared. Further, LP’s expert witness established that Benue state as well was won by LP giving them more states than the other two parties!
Finally, the 18,000+ blurred IREV votes and 39,000+ inaccessible votes on IREV affected about 2.5 million and 5.5 million votes respectively surpassing the dubious margin of victory!
Per LP’s final address:
“The Data Analysis for the 18,088 polling units being blurred copies of Form EC8A, show that the total number of accredited voters in these polling units were 2,565,269, and 9,165,191 voters who collected their PVCs in these polling units… far more than the purported margin of lead in the INEC announced result of the election, between the 2nd Respondent as the Candidate of the 4th Respondent and the Petitioners, for which the election result purportedly declaring the 2nd and 3 rd Respondents as the winners of the election ought to be nullified/invalidated.
“The unchallenged Data Analysis further confirm that, the purported result of the election in the polling unit in Form EC8A in 39,546 polling units were inaccessible on the IReV. In these 39,546 polling units, 23,119,298 registered voters collected their PVCs, whilst 5,532,553 voters were accredited to vote in these polling units… far more than the purported margin of lead in the INEC announced return of the election, for which the election itself ought to be declared as inconclusive, invalid and or null and void…
“A significant highlight of the expert Data Analysis (Data Report), produced by PW4, is that upon a proper and accurate computation of the result of the election in Rivers and Benue State, using the Forms EC8As uploaded on the IReV, and the certified copies of the Forms EC8As given by the 1 st Respondent to the Petitioners, is that the Petitioners won the Presidential election held in Rivers and Benue States.”
The main defense the Respondents seem to be making is that they changed their minds about uploading results to IREV days before the election and that the election is still determined only by paper ballots and not new technology.
However, per Chris Uche, SAN counsel to PDP:
“The failure of the 1st Respondent to report to either Amazon Web Service or to manufacturers of the technological device is clear proof that the so-called “technical glitch” was a ruse, unreal, if not self-induced. For a project that the Nation committed the sum of over N355 billion, it is unreasonable to expect that the Commission would refuse to report or complain to the suppliers of the devices or providers of the services or hold anyone accountable. In fact the evidence introduced by the 2nd and 3rd Respondents that the Chairman of the 1st Respondent had reneged on the commitment to use the prescribed technology (see Exhibit RA 5 – Tribune Newspaper) when juxtaposed with the stout and advertised resistance of the 2nd and 3rd Respondents to the use of the technology for the election (see Exhibit X2 – Vanguard Newspaper), strongly proves collusion between the Respondents to sabotage the transparency of the election by failure to use the technology designed to guarantee transparency and integrity by reliance on a fake “technical glitch” that was never, and has never been explained. — Chris Uche SAN, Counsel to Atiku/PDP, in election petition Final Address
Indeed, I submit that INEC cannot simultaneously argue that days before the election it said in an interview it would not transmit the results and then also say it tried to transmit the results but there was a glitch. Both submissions cannot be true, contradict one another and essentially negate any pretensions and intentions INEC had to piety or probity in the conduct of the elections. INEC is left naked, shorn of excuses or explanations of its substantial non-compliance other than self-sabotage bordering on sheer venality and criminality to dupe and hijack a nation.
On the whole, the trend of the facts and the arguments on the core issues appear fairly straightforward at this point. However, the public must keep in mind that legal analysis involves the court determining a couple of factors including:
1. What has been the interpretation given by prior courts on similar issues (precedents)?
2. What was the intention of the drafters of the law (intent)?
3. What is the mischief intended to be cured and how can that be achieved now (cure)?
4. Did counsel abide by rules of court, law and evidence in presenting their case (procedure)?
5. Were the violations so significant as to warrant the overturning of an election (substantiality)?
In conclusion, I wish to make two points. Firstly, the watching public should note that in a sense a court case is not unlike a football match with the court being an umpire. From the angle of a spectator in the stands, it might seem like a goal but the referee may have to review it on the VAR to determine whether it was offside. In like manner, we may view this case as a slam dunk against APC and INEC but the court still has to review some of the technicalities and rules of play involved.
This is why I again hope that the final judgment is aired on TV, and like the ongoing Women’s soccer World Cup, the referee announces to the spectators her decision after reviewing the VAR.
Finally, based on my impression of the case after brief in person attendance and a review of some of the filings, I am of the view that indeed the mischief aimed at mitigation by our laws fits the Tinubu scenario in toto.
Paradoxically, while 69% of Nigerians who voted against him are trying to remove Tinubu over drug money laundering in USA 30yrs ago, 69% of American Republicans want to re-elect Trump who has been indicted with almost 80 count charges of stealing classified documents, bribing hookers and potentially even more related to treason. This is because the US Constitution doesn’t preclude a president from ruling from prison, apparently since the framers did not expect that criminals could ever be elected!
However, it drives home the point that Nigeria has an even better constitution than the US in specifically prohibiting certain types of malfeasance in prospective officeholders but unfortunately our unwillingness to enforce clear provisions of our law is why mischief continues unabated.
As one of the briefs opined, the court is both one of law and policy and I dare say in both respects it is overwhelming clear what mischief avoidance in this context entails barring any unforeseen technicalities.
P.S. I just learnt of the passing of a sitting justice of the Supreme Court. In addition to the sad loss of life, this has very alarming import for the judiciary at this time.
Some months ago, I wrote:
“At least three justices of the Supreme Court retired last year and have not been replaced so their Lordships are virtually running on empty tank in case just a single one of them is ill or has any other emergency during this critical period like the CJN who reportedly was in UK twice in as many weeks for medical attention.
“The Apex Court should never be on the verge of human capital exhaustion as currently occurring. The Buhari regime will forever go down as the worst for the judiciary in history.
“Under him, a constitutional crisis was narrowly averted with his failure to appoint a CJN before traveling abroad for treatment, then a constitutional coup was inflicted with the illegal deposition of Chief Justice Onnoghen. Thereafter there was the historic judicial mutiny following the epochal call for investigation of Supreme Court by Ejembi Eko JSC during his valedictory session.
“Not since the near collapse of the Supreme Court by Gen. Abacha’s refusal to appoint new justices to constitute a panel to hear Moshood Abiola’s bail case, has the court been this close to asphyxia.”
Urgent action needs to be taken to replenish, reinvigorate and boost the morale of the court.
The court of appeal has at minimum quintuple the number of Supreme Court justices yet we expect the Supreme Court of a dozen justices is supposed to do the same work as them in the same time frame? A full constitutional court of seven for the presidential panel only leaves five justices to form a second panel for gubernatorial appeals. This means potentially the Supreme panel could have only two panels if there are simultaneous sittings of a the presidential appeal on the same day as any of the gubernatorial appeals.
However, the court of appeal had at least 20 panels – over 10 times more panels than the Supreme Court to hear the very same cases.
Yet the US Supreme Court, which has a lesser caseload, fewer justices and only one panel has better technical capacity, staffing and resourcing for greater output.
Until we reform our election jurisprudence and overhaul our technical and human capacity, we can’t get great output with no input. The Nigerian Supreme court should have a full complement of 21 justices minimum at election year. This is a no brainer. We should learn from the unfortunate experience of 2007 elections. CJN Belgore had retired and was to be replaced by a Justice of the Court of Appeal from north central Nigeria. Justice Ayo Salami who was next in line declined elevation because his eyes were on the juicier position of President of the Court of Appeal. Accordingly, the next most senior Justice of the Court of Appeal of north central extraction Justice James Ogebe was nominated instead along with Justice Coomasie filling the sharia law slot. Unfortunately, he was assigned to head the president election tribunal while their Supreme Court nomination was still pending for almost a year.
During the hearing of the case, the Supreme Court was short-handed and suggestions were made that Justice Coomasie should be sworn in immediately and Ogebe sworn in later after he finished the proceedings. However, it was argued that it would be monumentally unfair to penalize Ogebe JCA (as he then was) for being on national assignment by swearing in Coomasie who was far junior to him thus making him his senior at the Supreme Court…
Accordingly, both Ogebe and Coomasie JJCA’s appointments were further delayed until his completion of the presidential tribunal hearings when their Supreme Court appointments were announced.”
With the loss of a sitting judge, the Supreme Court is now officially unable to constitute two concurrent panels to hear the presidential appeal and a gubernatorial appeal.
I understand that this year, the court has been bogged down with pre-election matters to the detriment of other cases and that there is a 10 year backlog in cases. Cases filed in 2013 are only now being heard and cases filed now will likely be heard in 2033! Like US visa interview dates, I am told that the Supreme Court is adjourning cases now to the year 2025. In recent reports, I lamented the working conditions of justices which took a sharp turn for the worst under quisling Justice Tanko. I hope that there’s marked improvement of these and new justices will be speedily sworn in. May the sole of the departed jurist Rest In Peace.
2023 Election Court Diary 12: Misery or history? Presidential petition court adjourns for judgment after one last battle
Right from the parking lot, things were different today. Inside the courtroom, the Petitioner himself, ex-VP Atiku was seated in the Plaintiff’s left side row – his first appearance at any of the half dozen sessions I had attended in June and July.
Even the media row on the right had a dignitary I recognized from TV only as “Gbenga.” Truly this was the end of days for this trial.
I pondered the irony of life that the Petitioner was in court ironically like CBN Guv Efiemele is now also in court.
As VP, Atiku had occupied the residence designated for the Chief Justice of Nigeria beside the land allocated for the headquarters of the Court of Appeal. Rumor had it that he held up the building of the court because it was next to “his” residence.
The Bar association even had a public row with him over the CJN’s residence.
One day, someone came to meet my dad (then a Justice of the court of appeal) concerning a matter he was hearing that was purportedly of “interest” to the VP.
Nonplussed, my dad told the messenger that he was unconcerned by the VP’s interest and that even if he was, much less so for a person who had blocked the building of the court of appeal headquarters.
Coupled with a palace Cold War with the president, the VP ultimately moved out of the CJN’s house and the court of appeal headquarters was built.
Today seated in its midst seeking Justice, I wondered if he remembered that truly the judiciary is the last hope of the common man and not so common men too like Emefiele was now discovering. Just months ago, he defied court orders on currency but how he’s lamenting disobedience of court orders for his release…
The court announced that in consideration of the cooperation of the counsel in the case, they were extending the time allotted to each counsel from 10 minutes to 20 to address the court.
Once again I was impressed by the fairness of the court. In the preceding hearings, the court had alternated the parties’ cases between morning and afternoon shifts each week. This way no one would be disadvantaged by permanently being on morning session or afternoon session.
Advantages of the alternation included that issues argued and resolved in the morning shift paved the way for those in the afternoon to sail free.
In fact the sitting of the court today, August 1st, following the expired deadline to file documents on Friday July 8th, I was given to understand was a strategic move to finalize the hearings before the looming strike on August 2nd. It seemed the justices didn’t want force minor (act of man) to disrupt their sensitive duty.
So given their penchant for fairness and clear commitment to the task at hand, what followed was quite out of character.
After all the three respondents counsel had adopted their 40-page final addresses, the court took on Petitioner’s counsel Chris Uche, SAN for submitting 40-page addresses to each of the three respondents thereby totaling 120 pages.
It seemed to me obvious that this was what was to be expected. INEC, Tinubu and APC all had similar issues but different approaches, emphasis and arguments. It would be manifestly unfair to expect Petitioners to answer only one because of the 40page limit and not answer the other two.
For whatever reasons, the argument raged on for a while and Uche made the observation that the Respondents had cumulatively filed 120 pages of final addresses plus 30pages of Objections and then replies to his own addresses thus swamping him.
At a point, Uche put his put down that if he was forced to abandon some of his final addresses then he would be denied a fear hearing. At this juncture the court reached a compromise to resolve this issue when it became clear that there was indeed an additional address which he had withdrawn but wasn’t properly withdrawn.
For me, the issue here is the preponderance of respondents counsel made the trial process unnecessarily unwieldy and elongated. It was essentially an uneven match of three against one.
There were numerous lawyers in court some of whose value addition was negligible to doubtful.
Some of the junior lawyers in wigs and gowns beside me where busy texting on their phones oblivious to the historicity of the rare moment they were privileged to watch which hundreds of millions of Nigerians could not see and which would not be recorded for posterity.
Ironically during the lunch break in between the PDP and Labor case, I returned to the court only to find my seat had been taken by the disinterested baby lawyers after I traveled three continents to get here!
Packing the courtroom with numerous lawyers is neither helpful or useful if they’re just oxygen-consumer texters.
In the US, we have a couple of lawyers representing a client – one is first chair and the other is second chair and both have speaking prerogative. In Nigeria, you have 25 SANs and five others for one party and sometimes only one speaks. At least an hour was lost each day announcing appearances which amounts to days and delays when totaled up. Time could be saved by trimming this down.
I will confess that jetlag took a toll on me and so my commentary will be limited for now. Also somehow people in the US I spoke saw and heard a lot about what transpired so I won’t bore with a rehash.
One thing though my colleague pointed out to me at lunch was that the respondents lawyers did not object to the Petitioners’ writing a response to each of their final addresses.
Said my learned colleague, “if the court had denied petitioner the right to reply to all three, it would given him a cheap on appeal. That’s why you saw Olanipekun did not join the court in opposing PDP’s multiple final addresses.”
Once again, Uche stood his ground and succeeded in his advocacy – paving the way for LP who came after to sail smoothly with their 120pages unqueried.
I will discuss some of the points raised in both Labour and PDP’s cases in my next installment as they’re quite similar and sometimes it difficult to isolate who said what.
Another example today was when Uche respondent for addressing the issue of double nomination which was not raised by them but was raised in a different case.
The court closed with Justice Stephen stating that Nigerians are “prayer warriors” so they should pray for them.
He said the major part was now over. For the lawyers but arguably not for them.
The court gave one an impression of responsibility and sobriety.
In my mind, I knew that their decision hereafter would either make history or make misery. I surmised that the cost of traveling was worth knowing what arguments would result in Misery or History.
I also couldn’t help wondering if Atiku won in court, whether he would disobey court orders like Buhari did…
Emmanuel Ogebe, Esq. is a prominent US-based international human rights lawyer, judiciary expert and Nigerian pro-democracy advocate with the US NIGERIA LAW GROUP in Washington. This month, he marks the 27th anniversary of his release from abduction and torture by Gen. Abacha for demanding an investigation of the assassination of pro-democracy icon Kudirat Abiola over the June 12 election annulment. His advocacy led to the naming of Kudirat corner by Nigeria house in New York, the US designation of Boko Haram as a foreign terrorist organization and International Criminal Court Prosecutor’s determination of crimes against humanity in Nigeria amongst others.
—