ν Senior lawyers weigh in as legal fireworks begin
From Fred Itua, Godwin Tsa, Abuja and Lukman Olabiyi, Lagos
Two weeks after the conduct of Nigeria’s keenly contested presidential elections, the three leading candidates, Bola Ahmed Tinubu of the ruling All Progressives Congress (APC); Atiku Abubakar of the Peoples Democratic Party (PDP); and Peter Obi of the Labour Party (LP), have returned to the trenches for another round of battle.
This time, the battle among the trio, has shifted to the Court of Appeal in Abuja, venue of the President Elections Tribunal.
Bola Ahmed Tinubu of the All Progressives Congres (APC) was declared winner of the election.
But Atiku and Obi who came second and third respectively in the elections, are challenging the emergence of Tinubu as president-elect. They are both claiming that they won the election.
Already, Atiku and Obi have hired senior lawyers to challenge Tinubu. The president-elect on the other hand, has also assembled his own legal team, made up of senior lawyers.
Since Atiku and Obi filed their petitions, asking the tribunal to declare them winner, lawyers, political pundits and stakeholders, have been divided on how the decision of the court will pan out. Indeed, for the first time in Nigeria’s political history, two presidential candidates are challenging the outcome of an election at the tribunal, with each laying claim to the mandate. In his response to inquiries by Saturday Sun, a constitutional lawyer and Senior Advocate of Nigeria (SAN) Oba Maduabuchi, said two people can’t lay claims to winning one election. He said the Court of Appeal can only declare one candidate a winner, explaining that if such happens, the other petition will become “an academic exercise.”
He said: “In answering the first question let me state that the two political parties didn’t file a joint petition. Each one of them filed its own. They will therefore be treated separately as the evidence in one doesn’t have anything to do with the other and the decision in each will of course depend on the grounds for the petition the evidence led in support and the evidence led in rebuttal.
“One basic fact, however, is that two people cannot win one election. With that in mind once the Court of Appeal renders a decision pronouncing one candidate who is challenging the result of the election as winner then it will appear as if the other petition will become academic as the Court of Appeal cannot reach two different conclusions on one issue in the same proceeding.
“It could be argued that since the petitions are separate they are not the same proceeding. The simple answer is that a court takes judicial notice of its proceedings and decisions so as to avoid conflicts and uncertainty. But if one petition is struck out then a decision must be reached in the other one.”
On the second question, Maduabuchi said: “The lessons to be learned from the development is that our jurisprudence is developing and it will emphasise the necessity for there to be only one Tribunal to handle petitions in respect of one given position.
“It will also emphasise the necessity for petitions against the same political position should be consolidated and heard as one. There are provisions for consolidating petitions in our Election Petition Procedure Rules. That issue of consolidating petitions is decided at pretrial and settled. So it won’t pose any problems as the situation was anticipated when the Electoral Act was being crafted.”
In his response, a professor of Law and a Senior Advocate of Nigeria, Awa Kalu said the tribunal will look at the merits or otherwise of both cases separately since the two candidates didn’t file a joint petition.
“It is interesting, but you have to note, that those who want to challenge the outcome of the election have as yet, not presented their petitions. It is when the petitions are presented that the tribunal will look at the facts as well as the evidence before they draw their inferences and conclusions.
Kalu said further: “The presidential election holds fundamental lessons for this Nation. First, no future candidate for any elective position can take the electorate for granted. They are now aware of the tenets and demands of democracy, including the fact that the electoral process must be transparent. Each man and woman must have one vote each and that each vote must count so that whoever emerges winner can beat his or her chest and celebrate. Right activist and lawyers, Kabir Akingbolu, Ige Asemudara and former Chairman, Nigerian Bar Association (NBA) , Ikeja Branch, Dave Ajetomobi, in their separate responses, stated that there was nothing unusual about the petitions filed by both Atiku and Obi against the victory of Tinubu at the poll, but said the petitioners must be ready to prove their cases beyond reasonable doubts.
According to the lawyers, it is an avenue to reshape and develop Nigeria’s jurisprudence. Akingbolu said: “The truth of the matter is that nowhere did any law say that a candidate who came third cannot challenge the outcome of an election. However, in the instant case, even though both of them (Atiku and Obi) are surprisingly laying claims to be the winner, everybody knows the winner and who came second and third because the only officially recognized body to do that is INEC.
“Meanwhile, as it is now, to be candid, neither Atiku of PDP nor Obi of Labour Party ought to claim victory. This is because none of the two met the geographical spread of 2/3 of the states in the federation to be declared the winner. I believe that our electoral jurisprudence must develop but not in this way because the constitutional provisions in Section 134 cannot be circumvented.
“What this then means is that even if they are able to prove any of their allegations against the election, it can only result in nullification of few areas and where it is not substantial to affect the outcome of the election, the court will not nullify it. Again, it is rate in law for any court to nullify a presidential election. I think public policy supports the upholding of the sanctity of the republic.” Ajetomobi said all the claims of Atiku and Obi were going to be subjected to proof before the Tribunal. He noted that it is the constitutional right of both Atiku and Obi to claim that they won the poll but whether they were going to be declared as winner by the tribunal is issue of proving and establishing the fact.
“It is not enough to say I won, you must lead evidence to that effect, you must convince the five-man panel. So, I leave the rest to the panel to their findings and interpret what the law says,” he said. Asemudara said the issue of 2/3 is crucial in determining the winne. He noted that both Atiku and Obi have much to prove to the tribunal to buttress their claims in order to be declared winner. He said the evidences of petitioners and the counter petitioner would determine and pave way to know the winner.