The Advocate
By Onikepo Braithwaite
Onikepo.braithwaite@thisdaylive.com
Legislative Nonsense: Defending the Indefensible
Before I go into the Word for Today, let me register my disgust and that of millions of Nigerians, on the recent purchase of hundreds of SUVs for the Legislators. I listened to the Senate Committee Chairman on Services, Senator Sunday Karimi last Wednesday on Channels TV’s Politics Today, spouting what I can only refer to as gibberish and drivel in a bid to justify this senseless purchase. Defending the indefensible. I addressed this issue in 2019, so there’s no need to rehash my statements which I believe, remain valid. I will only conclude by saying that such a purchase is absolutely insensitive, considering how Nigerians are presently suffering, and it certainly goes against the economic objectives contained in Section 16 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), as well as breaching the provisions of the RMAFC law concerning the ceiling placed on the amount that can be spent on a Legislator’s vehicle. Senator Karimi had the temerity to add that, Legislators were elected to serve the people! Really? When we all aware that their principal interest is to serve themselves! What a shame – Legislators living ostentatiously and flamboyantly in a lap of luxury, while their constituents live in abject poverty, squalor and unceasing hardship.
The ’Almighty Judgement’
Finally, the ‘Almighty Judgement’ of the 2023 Presidential Election Petitions (PEPs) was delivered by the Supreme Court last Thursday, October 26, 2023, and the Petitions failed again, at the last bus stop. Let me start by saying that my comments below are strictly borne out of being a Lawyer who is familiar with the law, and not a Moralist. The outcome of the PEPs didn’t come as a surprise to anyone that is conversant with basic law, the Constitution and the Electoral Act 2022 (EA). I had done sufficient analyses of the PEPs and offered the correct position of the law on them, so, I don’t think I need to do so again. I will only comment briefly below on the American angle, since that was a last minute addition by the PDP to the case.
Throughout the journey to this final judgement, I have endeavoured to tutor my readers on many aspects of the Electoral law and elections, citing relevant judicial authorities to provide some proper insight, as I found the campaign of calumny mounted against the Judiciary by the supporters of the Petitioners from even before the Petitions were heard, rather painful. While I do not say the Judiciary is perfect, I find its attempted desecration, this time without reason, unfair, and a dishonour to our country as a whole. Knowing that they had little or no leg to stand on in law, extremely Senior members of the Bar did not once issue a statement to caution the supporters of their clients to exercise some restraint in their utterances against our justice system. I will be the first to agree that the administration of justice sector in Nigeria is not functioning optimally, but, in the case of the 2023 PEPs, the decisions of both the Court of Appeal and Supreme Court, cannot be faulted.
The American Angle
Why didn’t ‘Atiku Supporters’ or Labour Party Supporters accuse Judge Beryl Howell of the United States District Court for the District of Columbia of compromise (like they have been doing here every time the Nigerian court didn’t find in their favour or things did not go their way), when the District Court denied Aaron Greenspan’s application and refused to compel the FBI, CIA, and other American agencies to release alleged confidential records of President Bola Tinubu immediately? The District Court held that: “The Plaintiff has not made any representation to the court that the balance of equities tips in his favour, or that the granting of his motion would further the public interest….the balance of equities militates strongly in favour of denying this emergency motion”. This decision, in my humble opinion, is also applicable to the matter of the release of the CSU Certificate. I see no way that it would have furthered Alhaji Atiku’s interest or that of the public, with regard to the ongoing PEPs. The Atiku Supporters were silent about the District Court’s decision, as if cold water was poured on them to douse their pre-ruling excitement! How come we were spared from their usual vitriol? If it was a Nigerian decision, we wouldn’t have heard the last of it.
I was particularly amused when I heard some people complaining that the Supreme Court was rushing to deliver the judgement in the PEPs, so that by the time the FBI released whatever documents on President Tinubu, he would be covered by the immunity from suit and legal process provided by Section 308 of the Constitution. Have you ever heard Chief Commander Ebenezer Obey’s Evergreen Hit song, “Kètè Kètè”? About a man, his son and a donkey? The conclusion of the song is that, no matter what you do, you can never satisfy the world – one group or the other, will always be dissatisfied with your actions or decisions. The initial complaint was that the Petitions should be heard and determined before the swearing in on May 29, as is done in Kenya. I had to point out that the time lines set in Section 285 of the Constitution, makes their completion before the swearing in, impossible. Then, it became the opposite, that they were moving too fast!
The truth of the matter is, as far as the American angle is concerned, whether in the FBI segment or the CSU one, there was nothing compelling there that should have made the American Court grant either application. In the first place, the CSU Certificate matter had no bearing on the PEPs. It is settled by virtue of Section 285(9) of the Constitution, Section 29(5) of the EA and a plethora of authorities, matters of qualification and disqualification are pre-election matters that can only be brought not later than 14 days from the date of the occurrence of the event or decision or action complained of, by a Co-Aspirant of the same Party, while questions of nomination and sponsorship of a candidate for political office by a political party is a domestic intra-party matter in respect of which a court cannot adjudicate. See the case of Akpan v Bob & Ors (2010) LPELR-376(SC). Therefore, the PDP’s desperation to make the CSU or FBI matters a part of the PEP, is not supported by the extant law in Nigeria. Alhaji Atiku’s American Lawyers and the American court were misled (most probably by Alhaji Atiku’s Nigerian legal team) into thinking that the release of the CSU Certificate could impact the decision of the Supreme Court in the PEP Appeal. As we say in Hausa, ‘Ina”! In fairness to Alhaji Atiku Abubakar, he is not a Lawyer, and would have relied solely on the advice of his legal team to pursue the fruitless American option as far as the PEP was concerned.
Secondly, what would the CSU certificate or Caleb Westerberg’s deposition be resting upon? There was no ground of appeal in the notice of appeal, concerning this matter. In Akpan v Bob & Ors (Supra) per Ibrahim Tanko Muhammad, JSC (later CJN), the Supreme Court defined a ground of appeal thus: “It is said to be the error of law or facts alleged by an Appellant as the defect in the judgement appealed against, upon which reliance has been placed to set it aside. In other words, it is the reason(s) why the judgement is considered wrong by the aggrieved party”. It is trite law that an issue for determination, must be formulated from a ground of appeal. See also the case of Obiajulu Nwalutu v NBA & Anor (2019) LPELR-46916(SC) per Kumai Bayang Aka’ahs, JSC where the Supreme Court held that an appeal court will refuse to consider and pronounce on an issue formulated for determination, which does not arise from the grounds of appeal filed. Section 137(1)(j) of the Constitution, that is, presentation of a forged certificate to INEC was not part of PDP’s PEP let alone part of the PEPT judgement, and could therefore, not be a ground of appeal. See Ground d of PDP’s Petition.
Furthermore, the attempt to introduce the deposition of Caleb Westerberg as fresh or additional evidence, also did not meet the conditions for admitting fresh evidence on appeal set out in the case of Uzodinma v Izunaso (No. 2) 2011 17 N.W.L.R. Part 1275 Page 37 (also see the case of Williams & Anor v Adold/Stamm Intl (Nig) Ltd & Anor (2017) LPELR-41559(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC). On the PEP, the Apex Court held inter alia that, it certainly did not have the jurisdiction to entertain something that was already time-barred and could not be entertained by the PEPT. See the case of Obiajulu Nwalutu v NBA & Anor (Supra).
Additionally, Carl Westerberg’s deposition which Alhaji Atiku’s Counsel sought to introduce as fresh evidence at the Supreme Court, is a private document within the confines of the definition of Section 103 of the Evidence Act 2011, certainly not certified to be part of the proceedings of the American court. By virtue of Paragraph 41(1) & (3) of the First Schedule to the EA, Carl Westerberg’s deposition would have to have been tendered at the PEPT along with an oral examination, done by adopting his deposition.
Conclusion
There are several lessons to be learnt, from this 2023 election outing. First, the EA requires amendment. Presently, the EA provides mainly for a manual electoral process. Whether you transmit the results by a nuclear rocket or donkey or in ‘real time’, the result you input is done manually, and to this extent, the result can be manipulated. Again, ventilation of constitutional issues of qualification and disqualification of candidates in court, has been limited to a specific class of people; it’s not a come-one-come-all affair. All this may require another look. Election Matters are time bound and sui generis.
Anybody that has followed elections in Nigeria since 1999 knows that our elections have two stages, the actual election itself and the litigation that follows thereafter. Most candidates are ill-prepared for the second stage, and this is strange considering the fact that it is the norm for majority of candidates to end up at the Election Petition Tribunals, either as Petitioners or Respondents. Citing omnibus grounds in Petitions without discharging the burden of proof, gets a Petitioner nowhere. In Wike v Peterside (2016) LPELR-40036(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, the Supreme Court held inter alia that a Petitioner complaining of noncompliance with the Electoral Act “must prove it polling unit by polling unit, ward by ward, and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with, as a result of noncompliance”. This is what the law requires. No more, no less.
Flowing from this, in the 2023 PEP decision, the Supreme Court therefore, commented there are a plethora of authorities on how to prove electoral malpractice, and the Petitioners had failed to show that these decisions were ‘Per Incuriam’ and should be departed from. Having failed to discharge this burden of proof in their Petitions, even though it is trite law that he who alleges must prove, what would be the reason for the Supreme Court to depart from its earlier decisions to find for the Petitioners? The reason has to be that the previous case was wrongly decided, that the law was incorrectly applied, and not because the Petitioner was unable to discharge the burden of proof required by law in the subsequent case, and are therefore, looking for a lesser standard of proof. See the case of Egbe v Yusuf (1992) LPELR-1035(SC) per Olajide Olatawura, JSC.
Finally, the role of Party Polling Agents who are only ones that can assist litigants to prove their cases, cannot be overemphasised. Yet, Petitioners either do not have enough Polling Agents, or they do not bring them to testify as witnesses in court, polling unit by unit. How then, do they expect to be successful in their Petitions? See Section 135(1) of the EA.
Several Senior Lawyers have expressed their disappointment in the Supreme Court, for making no order as to costs. They believe that awarding heavy punitive costs which would have had to be liquidated before Counsel can appear in court again, would be a deterrent to Counsel who have made it the norm to run to court with frivolous, vexatious cases to waste the time of the court and further clog up a system that is already overburdened, and heat the polity and scandalise the Judiciary for good measure.
Going Forward
I hope we can finally lay the 2023 Presidential Election to rest, and let Government move on to real governance and solving Nigeria’s teeming problems. While I certainly cannot deny the fact that President Tinubu’s past appears to be shrouded in some secrecy to say the least, as a concerned Nigerian who has passed through so much hardship in the past few years, I am a practical person, and presently, I’m more interested in the improvement of the circumstances of my country and the quality of our lives, than academic debates about 45 year old certificates, especially as CSU has confirmed that President Tinubu did indeed, attend their College. Let me state unequivocally, that I do not consider President Bola Tinubu or any of the other Presidential Candidates to be saintly, sinless or perfect – they all have skeletons in their cupboards, though some may be more apparent than others. Unfortunately, this is where Nigeria finds herself – overrun with Politicians with shady pasts and presents.
If I were President Tinubu, my primary concern would be to render a sterling performance to Nigeria and Nigerians, to ensure that I go down in history as the Leader that turned the fortunes of a more or less broken country around for good.
