The Elephant that Trails The Tethering Cord And The Need For The King Who is Crowned to Peg the Elephant -By Ude Ogbodo Okereke

“Why is it that we appear to diagnose the disease of Africa, and yet, when we apply a new antidote, a new wound appears.” Prof. P.L.O. Lumumba.

 




Nigerians had almost never had a say in the issues that forge their future in the furnace that suffocates, rather than refine their future, politics. The birth of Nigeria was occassioned by the merchant slave-master. In her freedom, she was bought by her slaving-trading sons and this fate has oiled Nigerian Kwashiorkor bloated belly as she stride laboriously to the ecstasy she is drawn into by hunger and defeat. But this does not mean that Nigeria never had her share in making of Patriots. Her pillagers are just a horde.

What I labour to say, which I failed to say, is that the sufferings Nigerians have endured have a checkered career; that for the sake of humanity, we must get things right. This trivialized wish, this smothering wick of hope, this limping longing has plunged men into action; men who made ultimate sacrifice. We shall not let it lie.


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But this story wants to take us through the labyrinthine path of our rogged past. We disagree to follow. 1999 will do and we, therefore, start from 1999.

After many difficult years of iron chain, Nigerians got a golden one in 1999. We had a democratic Constitution. We were deceived; and a new chain was born.

This Constitution gives us INEC, an electoral empire (sane climes have electoral umpire) which, every four years, char out sad memories out of our subdued self into the tapestry of our subdued future, mocking our docility. This Constitution did not only gift us INEC, it birthed a Judiciary to interpret our law and bring us sanity. Aggrieved ones are to approach the court for redress. But what happens when the court causes the grievance? To where is it to be dragged? To the court of conscience or court of revolution? I pause. Lest I sound like an unemployable fool who intends to “bring down the roof” of our beloved country.

Nigerian politics has been played with the dirtiest the hands. My Lord Justice Niki Tobi, JSC agreed with this obvious truth in BUHARI V. INEC (2008) 19 NWLR (PT. 1120) 246 at 409, Tobi JSC  , a case as indispensably messed as the one given by the Presidential Election Petition Tribunal on 06 of September, a case which is the subject matter of this article. That election occasioned dirty handedness. This does.

In order to sanitze our electoral system, the National Assembly, coersed by the people, tired of the butchery of their will, gave us Electoral Act 2022. The provisions were so profound that well meaning Nigerians, who had, for long, lost interest in politics and in Nigeria, were tricked into the believe that 2023 will be a year of real change for Nigeria and the Nigerian people. The change, which rather assaulted and still assaults our sensibilities is the dashing of the hope of change; of salvation miracled into the mound of paradise of doom.

I have begun the sin of making emotion a ratio. It has no place in the law. This is trite that it does not entertain authority, but I must furnish her with authority. See BUHARI V OBASANJO (2005)13 NWLR (PT.668) 650 at 667; ORIANZI V A.G. RIVERS STATE (2017) 6 NWLR (PT.1561)224 at 288 & 289 and SHEHU V AHMAD (2023) 27 NWLR (PT.1888) 27 at 49. In LIMAN V MOHAMMED (1999) 9 NWLR (PT. 617)116, per Achike, JSC, in his execration of the two courts below, held that judgment which finds its validity, simply “on the sentiment to do substantial justice between the parties is legally inadmissible and cannot be allowed to stand.” Therefore, we shall not build a castle of argument that will be pulled down by the breeze of detached sentiment.

We have warned ourselves not to mention the obvious: that counsel to the Petitioners, most especially, Peter Obi, handled the case as if they bet on the failure of their clients. We will not say that. We will not say that the court is right in not admitting some inadmissible evidences before her or say that that witnesses testify on Supoena est testificandum does not admit to not filing of witness statement on oath, in compliance with the Electoral Act.

But we must go into the substance of  the case. The issues are Catholic. We are laconic, hence, I chose two:

Whether the 25 February 2023 election was not invalidated by reason of substantial non-compliance with the novel and mandatory provisions of the Electoral Act, 2022 on electronic transmission of results for collation and verification? And

(2) Whether Tinubu was lawfully declared and returned as the winner of the Presidential election held on 25th day of February 2023, having not secured one-quarter of the valid votes cast in the Federal Capital Territory, Abuja as required by the Constitution of the Federal of Nigeria, 1999 (As Amended)?

On issue one, the penchant for rigging of election in Nigeria is bewildering. Most bewildering is the banality with which this manace is confronted by  the court. No one expects something credible from INEC, safe for the people who are beneficiaries of the fraud (since that subject “credibility” dwells in the realm of phenomenological subjectivism, at least in Nigeria), who will lose if the sagging net of our Electoral system is mended. To their dismay, it was. 2022 Electoral Act was born, the brainchild of the desperate importuning of the National Assembly by the Nigerians for a better electoral system.Section 60 of the Electoral Act, 2022:

(1) The Presiding officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form.

(2) The form shall be signed and stamped by the presiding officer and counter signed by candidates’ agents;

(5) The presiding officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission.

(6) A presiding officer who wilfully contravenes any provision of this section commits an offence and is liable on conviction to a fine not more than N500,000 or imprisonment for a term of at least six months.

Let us now look at this provision,vis a vis the provision of section 64(4&5) which provides:

(4) Every Electoral officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the –(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act; (b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under section.

(5) ) Subject to subsection (1), a collation officer or returning officer shall use the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act and the votes or results recorded and transmitted directly from polling units under section 60 (4) of this Act to collate and announce the result of an election if a collated result at his or a lower level of collation is not correct.

Is this a fanciful display of artful contrivance in legislative drafting  by the National Assembly? I can not be convinced. This statutory provisions must meet the destiny of every statutory provision for the exercise of power. In SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC), the Supreme Court, Per KARIBI-WHYTE ,J.S.C  had the legal principle enuciated: “It is well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory, such power can only be exercised within the limits prescribed by the statute. – See Bowaje v. Adediwura (1976) 6 S.C.143.”

It must, however, be stated that the effect of non compliance is subject to whether the provisions is mandatory or directory. It is trite that “shall” is a word of compulsion. See Supreme Court decision in UDE V. NWARA (1993) 2 NWLR (Pt. 278) 638. Therefore, failure to adhere to such provision renders any act done thereunder a nullity. Thus, in  Amalgamated Trustees Ltd V. Associated Discount House LTD (2007) LPELR-454(SC), Per OGBUAGU ,J.S.C held: “It is settled that not every breach of a statutory provision, renders an act void, and that to be void, it must not be merely directory, but mandatory. See Odu’a Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; (1997) SCNJ 600 at 649 – per Ogundare.”

This position is as clear as the daylight and does not admit any darking by eclipse of artificial reasoning. The PEPT said the contrary. We must agree. Only the court knows the law. But it has no monopoly of knowledge in the constitutuency of justice according to the law. So, we must say what the law is.

But, let us pretend that the Evidence Act makes not electronic transmission a compulsion; let us pretend that sentiment for substantial Justice has tricked of out of the lodge of logic in the concourse street of arena-descending jurisdiction, doing butchery with the law.

Let our assumption move us, only to believing that INEC, out of her ineffable magnanimity chooses to conduct a free and fair Election. Let us say that, for that to take place, INEC approached the National Assembly and therefrom, obtained just a sum little above #355 billion for the employement of technology. That it uses Regulation 38 of its own Regulations to ensure the people, whose tax payers’ money has been expended for the procurement of the said technology of sure transparency. Could it, then, be reasonably justifiable for INEC to, in a summersualt, discountenance the use of technology for transmission after wasting our money?

Again, we will not follow emotion. That has nothing in common with the law. We must follow the law. The law to follow is the law of evidence; the evidence to follow is estoppel. Section 196 of the evidence act will be followed. It provides:

Where one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing. This was given judicial blessing in the cases of Joe Iga & Ors. v. Ezekiel Amakiri & Ors. (1976) 11 S.C at 12 -13, among avalanche of other authorities. Let us use Mabamije & Otto [2016]1 M. J. S. C (Pt. III) [Pp. 48-49] Paras. G-A, as a scapegoat.

After schemingly telling the people that INEC will transmit Election electronically, because of which, the people, once again, reposed trust in INEC, should the court allow INEC to brazenly resile from such promise, which caused people to alter their legal standing, invest their time and resources in a system from which they were promised a change and were made to believe in the genuineness of the promise? Should the law allow any body to blow hot and cold, approbate and reprobate at the same time?

The only reason INEC gave, most laughably, was that there was a “technical glitch”. “This technical glitch” did not affect the National Assembly election, conducted on the same day! And, INEC, after expending #355 billion of our money for a failed venture, did not see reason to approach the makers of this technology, at least, to Lodge a complaint.

That “technical glitch” is within the knowledge of INEC and if there is anything that remains of the maximum of Affirmabti non neganti incumbit probatio, it is that the onus to prove the “technical glitch” is on INEC. This is the clear provision of section 140 of the Evidence Act, 2011 as amended, which provides:

“When a matter is specifically within the knowledge of any person, the burden of proving that fact is upon him.”

And it could not be argued that The Petitioners make the allegation. They only alleged the negative. In AMALE & ORS V. MUSTAPHA & ORS (2022) LPELR-56897(CA), pp. 41-42, paras, in adopting the position of the Supreme Court in ADEGOKE V ADIBI & 7 ANOR (1992) LPELR-95 (SC), Per kutigi, JSC , the Appeal Court held: “The position of law is clear that the burden is on the who asserts the positive and here the Respondent is the one who asserts the positive. The Appellants had no burden of proving the negative.” I make no further comment on this.

On issue two, I have this to say: what is the intendment of the draftman of the Constitution? To make Abuja a state or give it a special status? Their Lordships of PEPT said Abuja is nothing but a 37th state! I have forced myself to accept that as the correct position of the law. I couldn’t. I wished to say that my Lords air in law, but that is ludicrous and condescending to say about my learned Lords; to say that not even one out of my five erudite Lords could understand a literal meaning of the clear wordings. I wouldn’t. Worst still, would I say their Lordships were bought over; that is contemptuous! Let me, therefore, believe that their Lordships gave the judgment to maintain status quo.

But what does the Constitution say about Abuja. Reproduction is the antidote to speculations, and I hereby reproduce it.

Section 134(2):

“A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being more than two candidates for the election (a) He has the highest number of votes cast at the election; and

(b) He has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation AND the Federal Capital Territory, Abuja.”

To determine whether this section is in consonance or not, with other provisions of the Constitution bordering on FCT, let us look at those sections which are:

Sections 2, 3 and 299 of the Constitution, 1999 as amended. Section 2 provides that Nigeria shall be a Federation with States AND FCT, Abuja. Section 3 provides that they shall be THIRTY SIX states. It lists them. Abuja is neither there, nor a 37 States!

From this two sections 2 and 3, it is beyond doubt that Abuja is not a State. But what is it and how should it be treated? It is FCT. To be treated as provided for in section 299, where the section is applicable. What does section 299 provide? Again, a reproduction:

“The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly –

(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja;(b) all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and

(c) the provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.”

Does this, then, mean that Abuja is a state? The qualifier here is “as if”. It is defined in Online Dictionary thus: “‘As if’ is a phrase used to describe a situation or action that appears or resembles something else, but is not actually that way.” And under what circumstances is Abuja to be reguarded “as if” it is a state? The section mentions.  For Legislative Power, executive power and Judicial power! Could it, in the widest stretch of imagination, be inferred that qualification for the office of President falls within this aforementioned three categories? Does not “expressio unius est exclusio alterius” cannon restrict interpretation squarely to the things mentioned?

But, “When purpose is not known,” said Myles Munroe in Understanding The Purpose And Power of Woman, “abuse is inevitable.” We will tell the tale of Abuja’s purpose in other to know why it enjoys a special status.

Lagos was the Capital of Nigeria. Because of its proximity to the Atlantic ocean, Lagos was a business hub. After the war there was a massive influx of the people to Lagos. This created a reasonable apprehension of fear and security concerns. To divest of these concerns, Murtala Muhammed, in 1957, began plans to relocate the capital. Abuja was chosen. This is, inter alia, because of its central location, its vast landmass which admits to expansion of the city, and for its template atmosphere.

Abuja was majority built in the 1980s. By 1991 the capital of Nigeria was relocated to her. Unlike other states, it has no Governor and has only one Senator as against three that a state has in Nigeria. No House of Assembly. National Assembly is her own House, just as the President is her Governor. Hence, the three instances, where Abuja is regarded “as if” it is a State.

Before we discuss section 134 of the Constitution, let us not turn blind eyes to the case relied upon by their Lordships; BABA-PANYA V. PRESIDENT, FRN (2018) 15 NWLR (Pt 1643) 423.

The late Musa Baba-Panya, who was was an indigene of Abuja dragged President Buhari to court in 2015 for the president’s failure to appoint an indigene of Abuja as minister, contrary to sections 14 and 47 along 299 of the Constitution. He won. The court based its verdict on the authority of OKOYODE v FCDA (2006) All FWLR (Pt. 298) and the Judgment is in accordance with the law as what is challenged is the exercise of the executive power; ie, appointment of an indigene of Abuja. This clearly falls within where FCT shall be taken “as if” it is a state.

Does this apply to section 134 as their Lordships wanted us to believe? No! The law is trite that where there is a conflict between General rule and special rule, the special rule takes precedent. See PURCELL (1985) 60 ALR 652 (at 657); It is obvious that section 134 is specific with reference to election. No other constitutional provision is, reguarding Abuja made such reference. How is it to be understood?

The Constitution states in Section 134(2) (b): “He has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation AND the Federal Capital Territory, Abuja.”

The operative word here is “AND”, it is to be given its ordinarily meaning. It is conjunctive rather than disjunctive. In BUHARI v. INEC (2008) 19 NWLR (PT.1120) 246, per Tobi JSC, had this to say in respect of the word “AND”

“The final word I should examine briefly is the conjunction “and” joining the larger part of the Subsection with the smaller part… The word “and”, being a conjunction, performing the function of joining two expressions or sentences which could be inseparable, integrated, joint or matched… See Ndoma-Egba v. CHUKWUOGOR (2004) 2 S.C. (Pt. I) 107; (2004) 6 NWLR (Pt. 869)”

From the foregoing by learned Lord Justice Niki Tobi JSC, we come to the irresistible conclusion that the word “AND” shall be read conjunctively. There is no doubt that one must win at least, 24 states out of the 36. Why then argue the contrary with regards the second limb of the same provision, 25 percent in Abuja? Nor should one be persuaded to believe the construction given to it by Wole Olanikpekun, SAN, an interpretation which is based on supreme Court’s interpretation of 2/3 majority of 19 states in ALHAJI SHAGARI & ORS (1979) LCN/2141(SC). That judgment, albeit given per incuriam, is not in pari materia with the case at hand and to bring in 1/4 of the 2/3 constructioninto Abuja is just doing violence to the clear letters of the law. Our law knows nothing about that adjective.

As regards the specialness of Abuja, it is clear that Abuja is planned and built as a melting pot of Nigeria; a confluence of culture and the diverse people of Nigeria; a miniatured Nigeria and the microcosm of Nigeria, hence, its special status.

Moreso, since Abuja neither had a Governor nor a House of Assembly, it logically follows that any one who will be their “Governor”, that is, the president of Nigeria must enjoy the support of, at least, 25 percent of the population.

But, one may argue, ‘if the president must enjoy, at least, 20 percent popularity in Abuja as its “Governor”, why don’t Abuja people also be opportune to vote for all the senators, since they constitute their House of Assembly?’ we will address that in its due season.

We will not mention that every president who ever ruled Nigeria had always won more than 25 percent in Abuja. That will be redundant.

Meanwhile, we are tired of the obnoxious odour of the sacrifice of justice on the altar of avoidable inordinate legalism. The Supreme Court is therefore, humbly requested, to stand up for Justice.

It took the Supreme Court 8 good years to reverse the effect of madness of rigging in gubernatorial election. Heaven did not fall. See AMAECHI vs. INEC & ORS (2008) LPELR-446(SC) (Pp. 67-68 paras. D), Per Oguntade, JSC. For 24 years, it has not summoned up courage to reverse that of Presidential Election. This is the time. For we can no longer pretend that all is well, nor become accustomed to insanity. We cannot become fit by being fit in an unfit fitness. The Elephant has since trailed the tethering rope, but the king, the supreme Court, is crowned, who will peg the Elephant. We beg her to please do.

Finally, it has been inscribed in the sand of time that when it mattered the most in the history of Nigeria for the Judiciary to act and redeem Nigeria, my Lord Justice Haruna Tsammani JCA, along my Lord’s four learned brothers, more than any others, aborted it.

 

Written by Ude Ogbodo Okereke.

Philosopher, political Analyst, Poet, Religious humanist, Human Rights Activist and currently a 400l law student of University of Nigeria. He writes from Enugu.

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