Peter Obi’s Final Written Address to Tribunal: Law demands Shettima must be disqualified for double nomination

The candidate of the Labour Party (LP) in the presidential election held on the 25th day of February, 2023, Mr. Peter Gregory Obi, has sked the Presidential Election Petition Court (PEPC) to disqualify the All Progressives Congress (APC) presidential and vice presidential candidates, Alhaji Bola Ahmed Tinubu and Senator Kashim Ibrahim Shettima, respectively for double nomination of the latter, insisting that is what the law demands.

Peter Obi made the demand in his Final Written Address at the Tribunal holden at the Court of Appeal sitting in Abuja.

Obi insisted that Shettima was at the time of the presidential election not qualified to contest the election as the vice presidential candidate of APC as the double nomination invalidated his qualification to contest the said election.

Demanding a disqualification of the Tinubu/Shettima duo, Peter Obi stated as follows:

We submit that the 3rd Respondent was at the time of the Presidential Election held on February, 2023 not qualified to contest the election as the Vice-Presidential Candidate of the 2nd Respondent and same invalidated the qualification of the 2nd Respondent to contest the said election.

The Constitution of the Federal Republic of Nigeria 1999 (as amended) makes it mandatory that every President Candidate must nominate a valid Vice-Presidential Candidate. Section 142, provides as follows:

(1) In any election to which the foregoing provisions of this part of this chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of vice-president of the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisi0ns aforesaid.

(2) The provisions of this part of this chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President.

The unchallenged facts before this Honourable Court are that the 2nd Respondent in purported compliance with this Constitutional requirement nominated the 3rd Respondent as his Vice-Presidential Candidate. He made the nomination on July 14, 2022, while the 3rd Respondent was the Senatorial Candidate of the 4th Respondent for Borno Senatorial District. The was clearly in contravention of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the extant provisions of the Electoral Act 2022, its Manuals, Guidelines and Regulations.

We submit that the Respondents cannot take refuge under the Supreme Court decision in PDP V INEC & Ors (2023) LPELR-60457 (SC). The decision of the apex court is well decided for the facts and evidence before it. We submit that the case turned on whether another political party who is not an aspirant can challenge the nomination of a party in a pre-election matter. We submit that the comments of the court on the date of withdrawal of the 3rd Respondent is not a ratio of the case. We submit that the date of July 6, 2022, on the letter of withdrawal cannot be the effective date.

It is not in dispute that the 3rd Respondent signed INEC Senatorial Election Notice of Withdrawal of Candidate Form EC11C on July 15, 2022. Until July 15, 2022, the 3rd Respondent remained in the records of INEC as the Senatorial Candidate of the 4th Respondent for Borno Central Senatorial District. He could not validly accept nomination for the position of Vice-Presidential Candidate of the 2nd Respondent before July 15, 2022. The fact before the Court is that it was on July 14, 2022, that the 3rd Respondent signed Form EC11A (Notice of Withdrawal of Candidate pursuant to Section 33 of the Electoral Act 2022) with officials of the 4th Respondent.

We submit that as at July 14, 2022, when he accepted nomination for the position of Vice­ President of the 2nd Respondent, he was still in the records of the 1st Respondents the Senatorial Candidate of the 4th Respondent for Borno Senatorial District. We submit further that these facts distinguish the decision in PDP V INEC & Ors (2023) LPELR- 60457 (SC). These facts were not canvassed before the Supreme Court, and they make the said decision not a precedent for this Petition.

The issue of double-nomination as raised by the Petitioner is an issue of qualification that can be ventilated under section 134(1) (a) of the Electoral Act 2022 (formerly section 138(1)(a) of the Electoral Act 2010, as amended), see the recent cases of APC V. CHIMA (2019) LPELR-48878 (CA) AND ACHILONU V. CHIMA (2019) LPELR-48837 (CA) at 6-10 where the Court of Appeal clarified thus:

“It is to be noted that section 38 of the Electoral Act, 2006, is now section 37 of the Electoral Act of 2010 (as amended). It would however appear that the current judicial disposition having regard to cases decided by the Supreme Court, is to the effect that a case of double nomination is stricto sensus not one of “party nomination” under section 87(9) of the Electoral Act and can comfortably be brought under the provisions of section 138(1) of the Electoral Act 2010, if properly articulated and a successful challenge in that regard being sufficient to void the votes cast in an election, if proved“. (Underlining ours, for emphasis)

The Supreme Court put the issue beyond argument when it held in PDP V DEGI­ EREMIENYO (2020) LPELR-49734 SC, as follows:

‘The sum total is that the joint ticket of the 1st and 2nd respondents sponsored by the 1st respondent was vitiated by the disqualification of the 1st respondent. Both candidates disqualified are deemed not to be candidates at the governorship election conducted in Bayelsa State. It is hereby ordered that INEC, (the 4th respondent herein) declare as winner of the governorship election in Bayelsa State, the candidate with the highest number of lawful votes cast with the requisite constitutional (or geographical) spread. The 4th respondent (INEC) is hereby further ordered to f01ihwith withdraw the ce1iificate of return issued to the I st and 2nd respondents and issue ce1iificate of return to the candidate who had the highest number of lawful votes cast in the governorship election and who also had the requisite constitutional (or geographical) spread.” 

Section 35 of the Electoral Act 2022 provides that where a candidate knowingly allows himself to be nominated by more than One political party or in more than one constituency, his nomination shall be void. The Court of Appeal in Ekpeudom v APC & Anor (2022) LPELR-56956 (CA), per Tsamani JCA, put it succinctly that:

“This provision of the Electoral Act, 2022 clearly stipulates the invalidity of multiple nominations and by the use of the word “shall” in the statute, it amounts to a command, a must, compulsion or an obligation or mandatory. See Aladejobi V NBA (2013) LPELR – 20940 (SC), Bamaiyi V Attorney General Federation & Ors. (2001) 12 NWLR (Pt. 727) 466 at 497. Thus, the intention of the drafters of this beautiful piece of legislation is to ensure credibility and integrity of the Electoral Process.”

We submit that the candidacy of the 2nd Respondent is invalidated by the vitiated, purported and failed nomination of the 3rd Respondent.

We further submit that, when the 2nd Respondent stood election as the Presidential Candidate of the 4th Respondent, despite his own disqualification by vi1iue of Section 137 (1) (d) of the 1999 Constitution as shown above. Both the 2nd and 3rd Respondents were affected by the virus of constitutional and statutory disqualification affecting each and both of them.

We urge your lordship to resolve this issue in favour of the Petitioners and invalidate the election of the 2nd and 3rd Respondents.

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