On the whole, this was an all-round well crafted, brilliant, and sound judgment from the 2023 Presidential Election Petition Tribunal (PEPT), despite misgivings and dissatisfactions from the Petitioners. The twin defeats at the polls and at the PEPT have been bitter pills for them to swallow.
Contrarily, the supporters of President Bola Ahmed Tinubu hope and pray that the Supreme Court agrees with the PEPT in substance and dismisses the appeals.
In concurring with the judgment of the PEPT for the greater part, I find solace in the case of General Muhammadu Buhari V INEC & Ors (2008) 19 NWLR (PART 1120) 246 AT 354 C – D per NIKI TOBI, JSC of blessed memory held that:
“Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption, In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption, See Omoboriowo v. Ajasin (1984) 1 SCNLR 108, Jalingo v. Nyame (1992) 3 NWLR (Pt.231) 538; Finebone v. Brown (1999) 4 NWLR (Pt.600) 613; Hashidu v. Goje (2003) 15 NWLR (Pt.843) 352 and Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1.”
In Alhaji Atiku Abubakar, GCON & Ors V. Alhaji Umaru Musa Yaradua & Ors (2008) 19 NWLR (PART 1120) 1 AT 173 E – G per NIKI TOBI, JSC (of blessed memory) held:
”Petitioner who contests the legality or lawfulness of votes cast in an election and subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are among those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of election not those who picked the evidence from eye-witness. No. They must be eye witness too. Both forms and witnesses are vital for contesting the legality or lawfulness of votes and the subsequent result of the election. One cannot be substitute for the other. It is not enough for the Petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recording of the votes; wrong doings and irregularities, which affected substantially the result of the election.”
Also, see the case of Senator Julius Ali Ucha v. Chief Martin Elechi & Ors. (supra) 2012 3 SC (Pt. 1) p. 26, (2012) 13 NWLR (Pt. 1317) 330:
“Where a petitioner complains of non-compliance with the provisions of the Electoral Act, he has a duty to prove the non-compliance alleged based on polling unit by polling unit.”
In the case of Ucha Anor v. Elechi & 1774 Ors (2012) 3 SC (Pt. 1) P. 26, (2012) 13 NWLR (Pt. 1317) 330, states the physical impossibility for an individual or party agent, as the case may be, to supervise an election in multiple polling units given the fact that eye-witnesses are to be called from each polling unit to testify. Also, see the case of Andrew vs. INEC (2018) 9 NWLR (PART 1625) 507 AT 551-552, 566 F-G, and 582E-F.
The Respondents (INEC, Senator Bola Ahmed, Senator Shettima Kashim, & APC) contended that Mr. Peter Gregory Obi was not validly nominated by the LP to contest the presidential election. They argued that Obi left the PDP on May 24, 2022 and joined the LP on May 27, 2022. Therefore, as of May 30, 2022, Obi was not a valid member of the LP and could not have duly participated in its presidential primary election. They also insisted that Obi’s name could not have been contained in the Comprehensive Membership Register of the Labour Party, which ought to be submitted to INEC 30 days before the primary election was held. But, the court, albeit, erroneously, held, at page 38/9, that:
“The courts have persistently held in a plethora of cases that the issue of membership of a political party is an internal affair of the political party. It is not justiciable and the courts have no jurisdiction entertain same… The provision of section 77(3) of the Electoral Act which only mandates every political party to submit the register of its members 30 before its party primaries cannot be invoked by the Respondents for the purpose of challenging the 1st Petitioner’s membership of the 2nd Petitioner. It is only the 2nd Petitioner that has the sole prerogative of determining who are its members, and having sponsored the 1st Petitioner as its candidate for the Presidential election, the 1st Petitioner has satisfied the requirement of being a member of the 2nd Petitioner as provided for in section 131(c) of the 1999 Constitution. It is not within the rights of the 1st and 2nd Respondents and the 3rd Respondent to question the 1st Petitioner’s membership of the 2nd Petitioner. This ground of objection is hereby overruled.”
Ordinarily, the “issue of membership of a political party is an internal affair of the political party. It is not justiciable.” That is a given. However, the validity of nominations held by political parties (an entirely internal affair of political parties) must, necessarily, be distinguished from the incidences of Comprehensive Membership Register submission to INEC (an external affair involving INEC), which must be justiciable under these circumstances! The mandatory or statutory presentation and/or submission to INEC of that already composed or constituted membership register of a political party is fundamental and must be justiciable for purposes of due enforcement and compliance with sections 40 and 221 of the 1999 Constitution (As Amended), read together with sections 29(1) and 77(3) of the Electoral Act, 2022, and section 15, Paragraph F, Third Schedule, Part I, Federal Executive Bodies (Established by Section 153), 1999 Constitution (As Amended). In other words, while “the issue of membership of a political party is an internal affair of the political party,” however, the submission of the membership register to INEC is not the prerogative of any political party! In the Amaechi’s case (infra), it was held that:
“It is my view that a political party is able to control the affairs of the party only to the extent that the exercise of such control does not run against the provisions of the Constitution and Laws of Nigeria.”
Accordingly, implied condition precedent to contesting and/or petitioning against any presidential election organized by the Independent electoral Commission (INEC) as per section 133 of the Electoral Act, 2022, which the law courts are obliged to enforce due compliance – in furtherance to section 131(c) CFRN, has been established. It also reinforces the provisions of Section 15(a-f, and i), Paragraph F, Third Schedule, Part I, Federal Executive Bodies (Established by Section 153), 1999 Constitution (As Amended)! Reliance is placed on the cases of Nigercare Dev. Ltd. V. Adamawa State Water Board (2008) 9 NWLR (Pt. 1093) 498, (2008) LPELER-1997 (SC); Chief Berthrand E. Nnonye v D.N. Anyichie & 2 Ors (2005) JELR 45228 (SC), and the case of Wali & Ors. V. Ogiri & Ors (2021) LPELR – 56272 (CA). Instructively, it will be setting a dangerous precedence that political parties do not need to comply with the provisions of section 77(3) of the Electoral Act, 2022 – whose wordings are plain and unambiguous – in future presidential elections in this country!
It is trite that section 131(c) of the 1999 Constitution (As Amended) together with section 77(3) of the Electoral Act, 2022, cannot and must not be read in isolation – to the levels of stultifying narrowness of both constitutional and statutory provisions. For one, the former must be read together with Section 40 and 15, Paragraph F, Third Schedule, Part I, Federal Executive Bodies (Established by Section 153), 1999 Constitution (As Amended). See the case of Hon. Ifedayo Sunday Abegunde vs. The Ondo State House of Assembly (2015) LPELR-24588(SC), (2015) 8 NWLR (Pt.1461) p.314 @ 344 & 353, where Suleimam Galadima, JSC, held:
“In this case the clear principle upon which our Constitution is established does not admit of reading of the words in most provisions with stultifying narrowness.” [Emphasis added].
It was further held that:
“The general of interpretation of statutes has also been laid by this court in several decisions and the rule is that where the words of a statute are plain, clear and unambiguous, the court shall give effect to their literal meaning. It is only when the literal meaning result[s] in ambiguity or injustice that the court may seek internal aid within the body of the statute itself or external aid from statutes in pari materia in order to resolve the ambiguity or avoid doing injustice.” [Emphasis added].
Section 15, Paragraph F, Third Schedule, Part I, Federal Executive Bodies (Established by Section 153), 1999 Constitution (As Amended): The Commission shall have power to –
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;
(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;
(c) monitor the organization and operation of the political parties, including their finances;
(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;
(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;
(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.
Similarly, the intent and purpose of section 77(3) of the Electoral Act, 2022, is no different from that envisaged in section 9(1) of the Electoral Act, 2022:
“The Commission shall compile, maintain, and update on a continuous basis, a National Register of Voters (in this Act referred to as “the Register of Voters”) ….”
Documentation is a necessary part of the mandatory functioning of the INEC. See the case of National Democratic Party (NDP) v. INEC (2012) 12 SCNJ (Pt. 2) 735 @ 761 & 762:
“The requirement of the Electoral Act, 2010 is that the Commission shall publish the Notice of Activities NOT LATER THAN 90 days before the day appointed for holding of an election under the Act… The INEC is only required to comply with the provisions of Section 30 of the Electoral Act, 2010.” [Emphasis added].
The combined effect of section 40 and 221 CFRN, and section 77 of the Electoral Act is that a candidate must belong to a known and existing political party – to participate in an election organized by the INEC. Notably, in spite of the rulings in the cases of INEC v Action Congress (2009) 2 NWLR Pt. 1126-524 (CA) and Ngige v. Akunyile (2012) 15 NWLR Pt. 1323-343 (CA), elections are won by political parties, and not by candidates, otherwise a semblance or an atmosphere of independent candidacy is created, especially when political parties blatantly flout the extant, mandatory, and fundamental provisions of section 77(3) of the Electoral Act, 2022. In Amaechi v. INEC & Ors (2008) LCN/3642 (SC), where the apex court held that:
“The above provision (i.e. section 221) effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest.”
Section 40 CFRN:
Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition. [Emphasis added].
By virtue of the Proviso to section 40 CFRN, the INEC was wrong to have accorded any recognition and/or permission, ab initio, to Mr. Peter Obi and the Labour Party to participate in the February 15, 2023, presidential election. Compliance with the provisions of section 77(3) of the Electoral Act, 2022, enlists recognition from the INEC! Accordingly, it behoves of the INEC upon discovery of this anomaly to correct itself, reverse course, and withdraw whatever recognition erroneously accorded Mr. Peter Gregory Obi and the Labour Party to have participated in the 2023 presidential elections.
Section 40 CFRN is a mandatory provision – “Provided that the provisions of this section SHALL not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission…” especially when read together with section 221 of the same Constitution:
No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election. (Emphasis added).
Section 77 of the Electoral Act, 2022:
(2) Every registered political party shall maintain a register of its members in both hard and soft copy.
(3) Each political party shall make such register available to the Commission not later than 30 days before the date fixed for the party primaries, congresses or convention.
Section 133(1) of the Electoral Act, 2022:
An election petition may be presented by one or more of the following persons —
(a) a candidate in an election; or
(b) a political party which participated in the election.
It is settled law in this clime that it is political parties that contest elections. Reliance is placed on the cases of INEC v Action Congress (2009) 2 NWLR Pt. 1126-524 (CA) and Ngige v. Akunyile (2012) 15 NWLR Pt. 1323-343 (CA), Amaechi v. INEC & Ors (2008) LCN/3642 (SC), and Wada v. Bello (2017) 3 W.R.N. 72. However, it is submitted that the operations of sections 40 and 221 of the 1999 Constitution (As Amended), read together with (the INEC’s monitoring and supervisory roles captured in) section 222 (a), (c), (d), 223, 225 CFRN, could not be limited or restricted to the confines of intra-party mechanizations, when such clear intentions could not be discerned, inferred, and/or foisted on the lawmakers, arbitrarily – not even by the courts! To this extent, intra-party affairs must mean and refer to only those matters exclusively mentioned in sections 222(b), (e), (f), 223(a), (b), (2)(a), (b), and 224, CFRN, entirely within the prerogative, scope, and purview of political parties. Therefore, Mr. Peter Obi and the Labour Party could not be given an automatic cover under the guise of intra-party affairs; we must lift the veil and see what is going on for ourselves. And where INEC is involved, necessarily and naturally, the litigation interests of Respondents i.e., President Bola Ahmed Tinubu, Vice President Shettima Kashim, and the APC, are invoked – to see that there was compliance with the relevant laws! Therefore, a cross-appeal may just be looming in the horizon – in the interest of all well-meaning Nigerians.
In concluding, it is worthy of note that much of the above are excerpts from the book titled, “The Tinubu 2023 Presidential Mandate; Defending the Mandate.
Sir, Festus T. Nyiwo, Esq
