By Chief Mike Ozekhome
Like Nostradamus, the man who saw tomorrow in my above writeup I had thoroughly analysed the judgement in the Umahi case before the Federal High Court, Abuja, the very day it was delivered. I had concluded that the Federal High Court was wrong to have ordered the removal of the Governor and Deputy Governor of Ebonyi state from office over their defection from the PDP to the APC. I had predicted then that the judgement will not stand the acid test or furnace of fire of appellate court decisions and that it will definitely be set aside.
Today, the Court of Appeal, Enugu judicial division, vindicated me fully,like Nostradamus ,the man who saw tomorrow.The Court of Appeal, Enugu judicial division,today unanimously dismissed the Appellants’appeal and held that the defection of Governor David Umahi and his Deputy, Kelechi Igwe, “may be immoral or even improper…it must be acknowledged that membership of political parties is an exercise of the freedom of association guaranteed by section 40 of the Constitution..”
The intermediate court,while commending the learned trial Judge,Njoku, J,also held that to have acceded to the argument of the Appellants’ counsel for the trial court to fill an assumed lacuna in the Constitution by extrapolating consequences for elected legislators provided for in sections 68(1)(g) and 109(1)(g) , so as to make elected Governor and his Deputy to vacate their offices, would “degenerate to judicial rascality”. The court emphasized that it is not the duty of courts to make laws or speculate as to what the intention of the legislature will be outside the express words used in the statute.
As regards the Constitution, “the duty is even higher and it is beyond the courts to insert or manufacture words into the express provisions of the “Constitution”, the court warned.
The intermediate court carefully distinguished the old ( now extinct) cases of AMAECHI VS INEC (2008) LPELR-446(SC); FALEKE VS INEC (2016) 18 NWLR ( 1543), and found them gravely irrelevant in the new dispensation of our constitutional regime, having regards to the provisions of section 141 of the Electoral Act,2010, as amended, and section 285(13) of the 1999 Constitution, as altered. Aside these provisions ,the aforementioned cases have since been consigned to the vehicle of judicial historical oblivion to remain there as relics of the past and artefacts of a national museum. See the new regime of the relevant and appropriate cases by the apex and intermediate courts that now insist that votes wholly belong to candidates ,and not to political parties, which merely serve as their vehicles and agents to canvass for and gather votes for the candidates :
CPC & ANOR VS OMBUGADU & ANOR (2013) LPELR-21007(SC); OZOMGBACHI VS AMADI & ORS ( 2018) LPELR-45152( SC); NGIGE VS AKUNYULI (2012) 15 NWLR( PT 1323) 343; NWANKWO & ANOR VS INEC & ORS (2019).LPELR-48862(CA); HARUNA VS APC & ORS(2019) LPELR-47777( CA).
The Court of Appeal also found that once a person has been elected Governor and he takes the oath of office and allegiance, he can only be removed in accordance with the provisions of sections 180, 188 and 189 of the 1999 Constitution. See MARWA VS NYAKO (2012) LPELR-7837 (SC).
The Court of Appeal was emphatic that defection from the political platform on which a Governor was elected, to another political party, is not one of the factors that can make him lose his seat and cease to be a Governor under the Nigerian Constitution.
The court further held that the case of AG FEDERATION VS ABUBAKAR (2007) 10 NWLR ( PT 1041) 1, was the relevant and apposite authority of the Supreme Court which ought to guide all lower courts in matters concerning defection, using the doctrine of stare decisis.
One major significant pronouncement in this case is that even in the case legislators’s defection, as held in ABEGUNDE VS ONDO STATE HOUSE OF ASSEMBLY & ORS (2015) LPELR -24588 (SC), the consequential order to make them suffer the consequence of loss of their seat is “for bye election to be conducted and not for the vacated seat to be allocated to either the political party or the runners up at the election “.
As we await the final court of the land’s determination of an appeal that will certainly arise from this epochal pronouncement, let me again make it clear for future reference point : the Constitution of Nigeria is clear. No court can read into it what is not contained therein. It is trite, the legal maxim, ” EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS” ( the express mention of one thing is the exclusion of others. See EHUWA V ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) LPELR-1056(SC); UDOU & ORS VS ORTHOPEDIC HOSPITAL MANAGEMENT BOARD & ANOR ( 1993) LPELR-3308( SC); SHINKAFI & ANOR VS YARI &ORS (2016) LPELR-26050 (SC).
Some may decide,in their analysis, to pontificate and to talk politics,sentiments, emotions,ethics and morality. In my humble opinion, pulpits,mosques, or even shrines are more appropriate places for such ineffectual liberal disquisitions and moral platitudes. I speak the law, without any partisan colouration. I speak the lex lata ( the law as it is); not the delege ferenda ( the law as you would want it to be). We were so taught in our classes in Jurisprudence.
US Court order upsets Tinubu, as he files motion to stall issuance of his CSU records to Atiku
Upset by the United States Magistrate Court’s order directing Chicago State University to release his academic records to the Peoples Democratic Party (PDP) presidential candidate, Abubakar Atiku, President Bola Tinubu on Thursday switfully filed an emergency application with the District Court to stall implementation the order’s .
The magistrate court had given Chicago University 48 hours ending Thursday evening Chicago time to release Tinubu’s records to Atiku.
However, Tinubu, apparently rattled by the court order, alleged in a fresh application on Thursday that Judge Jeffrey Gilbert breached the constitution by acting as a final court in such matters of discovery.
The anxious President Tinubu contended that a magistrate should only report and recommend to the district judge in such matters.
Tinubu further argued that the Magistrate court had issued what seemed to be a final order on September 19, demanding immediate compliance starting on September 21.
“Intervenor asks this court to enter an immediate order delaying the effect of the Magistrate’s order, at least until Monday, September 25, 2023, so the court may fully consider both the scope of the Magistrate’s authority to issue the order without review and the issue of whether the Magistrate’s order was a correct application of the law to the facts presented.”
He requested the court to delay the effect of the Magistrate’s order until September 25, 2023, to fully consider the order’s scope and its application of the law to the facts presented.
In the motion filed by his lawyer, Mr Carmichael, Tinubu emphasised that other courts, considering the authority of Magistrate to rule on Section 1782 applications, opted for issuing reports and recommendations.
“Intervenor raises a substantial question about the Magistrate’s authority to resolve the Section 1782 petition and order immediate compliance by Chicago State University.
“‘If Chicago State University complies with the Magistrate’s order prior to this Court having an opportunity to review the order, Intervenor will suffer prejudice because the information will have been disclosed and effective relief will be impossible.
“The order requires the documents to be produced today. (Dkt. 40, pg. 31.)
“By contrast, Tinubu maintained that he has at least until September 27 to submit material, if not longer, and, as the Magistrate commented, the “tight timeframe” was created “in no small part” by applicant. (Dt. 40, pg. 28.)
“That leaves enough time for the Court to review the ruling and, if discovery were permitted to proceed, for the applicant to still obtain the information sought.
“Due to the timing for compliance by Chicago State University — later today ~ Intervenor is filing this motion separately from its challenge to the Magistrate’s ruling on the application. Intervenor intends to file by the end of the day, a substantive brief addressing the errors in the magistrate’s decision.
“Intervenor requests that the Court defer compliance by Chicago State University until Monday, which will provide both an opportunity to review the Magistrate’s ruling, and, if ordered, to allow the discovery to proceed before September 27.
“For example, a production could accur on Tuesday morning, be followed by a deposition in the afternoon, and a court reporter can provide a rough or real-time transcript that evening.
“Counsel for intervenor, Christopher W. Carmichael communicated with counsel for applicant Alexandre de Gramont, who opposes the motion.
“Wherefore, intervenor prays that the court grant the emergency motion and delay compliance with the magistrate’s September 19, 2023 order until the end of the day Monday, September 25, 2023”, the documents read.
Tinubu’s motion was seen by the Special Adviser on Media and Publicity to the former Vice President, Mr. Paul Ibe, who confirmed its receipt.
Ibe, however, viewed Tinubu’s motion as a delay tactic to stall the release of academic records before the Supreme Court commences hearing of Atiku’s appeal against the September 6 judgement of the President Election Petition Court.
“It should be now obvious even to the blind that Tinubu is hiding something in his records at the Chicago State University, and even elsewhere. I do hope whatever it may be, it will not be of a scope that will give Nigerians a heart attack. Nigerians will soon see the true position of Atiku on the records of Tinubu at CSU. It is just a matter of time,” Atiku’s aide said.
PEPC’s judgment was erroneous, Atiku tells Supreme Court
***fails to recognize ‘Doctrine of Legitimate Expectation’
***Says justices exhibited bias through uncomplimentary remarks
The Peoples Democratic Party (PDP), in the last presidential election, Alhaji Atiku Abubakar, is asking the Supreme Court to overturn the judgment of the Presidential Election Petition Court having failed to take into cognisance the “Doctrine of Legitimate Expectation” regarding the failure of INEC to conduct the election in accordance with its own guidelines and the Electoral Act, 2022.
The doctrine of Legitimate Expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person.
In Nigeria, the doctrine of legitimate expectation demands that a public authority shall respect and apply its stated position or sustained practice in exercising its powers on members of the public.
However, Atiku in his Notice of Appeal dated September 18, and filed by his lead counsel, Chief Chris Uche, SAN, submitted that the failure of the tribunal to apply the said doctrine is enough ground for the apex court to set aside the entire decision of the lower court.
Specifically in ground seven of his Notice of Appeal, the former Vice President submitted that, “the lower Court erred in Law when it failed to nullify the presidential election held on February 25, 2023 on the ground of noncompliance with the Electoral Act 2022, when by evidence before the Court, the 1st Respondent (INEC) conducted the election based on very grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the “doctrine of legitimate expectation”.
While pointing out that the Electoral Act 2022, made the use of Bi-modal Verification Accreditation System (BVAS) and INEC’s Results Viewing (IReV) portals mandatory in the conduct of the 2023 general elections, adding that, INEC through its Chairman, Professor Yakubu Mahmood, publicly gave guarantees, undertakings, clear and unambiguous representations to candidates and political parties, that polling units results were mandatorily required to be electronically transmitted or transferred directly by the Presiding Officers, he argued that, “there was no evidence before the lower Court that the 1st Respondent altered its aforesaid Guidelines and Regulations to remove the said requirement of electronic transmission of the results of the election directly from the polling units to the 1st Respondent’s Collation System”.
It is the submission of Atiku that, INEC “conducted the said Presidential Election based on the gross misrepresentation to the Appellants and the general voting public that the Presiding Officers were going to electronically transmit the results of the said election directly from the polling units to the 1st Respondent’s Collation System.
He added that, “Contrary to the above unambiguous representations, undertakings and guarantees, the 1st Respondent neither deployed the electronic transmission of election results nor the electronic collation system in the said election, sabotaging the raison d’etre for the enactment of the new Electoral Act 2022 and the introduction of the technological innovations.
“Rather than hold the 1st Respondent (INEC) as a public institution accountable to the representations that it made pursuant to its statutory and constitutional duties which created legitimate expectation on the part of the Appellant’s, the lower court wrongly exonerated the 1st Respondent of any responsibility by holding that the use of the technological innovations to guarantee transparency was not mandatory”.
It was the appellant’s further position that the February 25 poll was “conducted based on very grave and gross misrepresentation and was therefore oppressive to the Appellants and thus not free and fair, and not in accordance with the principles of the Electoral Act 2022, and not protected by the presumption of regularity, as well as the preamble and the fundamental objectives and directive principles of State Policy of the Constitution of the Federal Republic of Nigeria 1999 (as amended) adopted by the lower court.
“The grave misrepresentation negated the legal presumption of official regularity in favour of the 1st Respondent.
Besides, Atiku told the apex court that INEC as a public institution is not above the law, and not entitled to breach its own regulations with impunity, after clear and unambiguous representations upon which parties have placed reliance and entitled to legitimate expectation.
“The said election ought to have been nullified by reason of the said gross misrepresentation by a public institution based upon the “doctrine of legitimate expectation” as applied by the Supreme Court as a policy Court….”
Accusing the tribunal of bias, the appellants stated in grounds 34 that the “lower Court erred in law in its use of disparaging words against the Appellants in its judgment evincing bias against the Appellants as Petitioners and thereby violating their right to fair hearing and occasioning grave miscarriage of justice.
The justices in their verdicts, while discountenancing the arguments and contentions of the Appellants used expressions such as ‘ludicrous’ (page 721 of the judgment), ‘clever by half’ (page 557 of the judgment), ‘dishonourable practice’ (page
507 of the judgment), ‘smuggle’ (page 557), ‘fallacious’ (page 721
of the judgment); ‘foul play’ (page 560 of the judgment), ‘cross the
line of misconception’ (page 644 of the judgment); ‘collect evidence from the market’ (page 765 of the judgment); ‘those who are not
used to reading preambles’ (page 726 of the judgment); ‘hollowness in the argument of the Petitioners’ (page 727 of the judgment); etc.
It is the position of the appellants that the choice of words and expressions by the lower court shows the
lower Court’s contempt and disdain for the Appellants.
“The lower court failed to use civil, modest, moderate, and temperate language that is befitting of the exalted position of the court in line with the Revised Code for Judicial Officers of the Federal Republic of Nigeria, promulgated by the National Judicial Council.
“The words against the Appellants in the judgment evince a disposition in the mind of the lower court that was far from objective, which approach demonstrated bias and infringement to the Appellants’ right to fair hearing.
“The Appellants were entitled to approach the Court for the
ventilation of their grievances, which court was set up as the
Presidential Election Petition Court, solely to receive petitions arising from the presidential election.
“The right to present an election petition in respect of a presidential election is a right granted by the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act 2022, which right the Appellants merely exercised.
“The use of the said words and expressions substantially affected the lower court’s consideration of the Appellants’ case, peremptorily
striking out their witness statements on oath, their exhibits, their pleadings, and discountenancing the evidence of their witnesses, and thus occasioned a grave miscarriage of justice”, the appellants submitted.
Recall that the five-member panel of the tribunal had on September 6 upheld the declaration of Tinubu as the winner of the February 25 presidential election.
The panel in a unanimous decision held that Atiku, as well as other petitioners against the February 25 presidential election, were unable to substantiate their allegations against the poll conducted by the Independent National Electoral Commission (INEC).
Specifically, the panel led by Justice Haruna Tsammani in their judgments held that, the documentary and oral evidences presented before them could not prove claims of irregularities, corrupt practices, non-compliance amongst other claims for which Atiku had asked the court to void Tinubu’s election.
Dissatisfied, Atiku claiming that the lower tribunal erred in law in affirming the outcome of the February 25 poll, has amongst others asked the Supreme Court to set aside the entire decision of the tribunal.
Atiku, in addition, prayed the apex court to after voiding Tinubu’s election, declare him as the authentic winner of the poll.
Atiku, who came second in the poll, is claiming that he and not Tinubu actually won the majority of the lawful votes cast at the election, but the electoral umpire, however, manipulated the process in favour of Tinubu.
Nasarawa Guber: Agabi knocks INEC over inability to defend Sule’s purported victory
from Daniel Abel, Lafia
The Independent National Electoral Commission (INEC) has been heavily criticized over its inability to adequately defend election results in Nasarawa State’s gubernatorial petition case that allegedly produced Gov Sule as winner
The Petitioners contended that the election irregularities favored the wrong candidate.
In a dramatic turn of events during the adoption of written addresses, Council to PDP candidate, Kanu Agabi SAN indicated that INEC accepted wrongdoing when the defense lawyer, Ishiaku Dikko, SAN acknowledged that both the All Progressives Congress (APC) and Governor Sule were also shortchanged during the March 18 governorship election
He spoke while shedding more light on their contribution to the incorrect declaration of the winner.
In the words of Agabi, INEC failed to defend the victory they declared as they heaped their claims on the ambiguity of collated figures while ignoring INEC records, arguing that their client was also rigged of their votes by INEC at other polling units different from the ones under contention by the petitioners.
“With INEC having concluded its final address on a quote “what is good for the goose is good for the gander,”To this, Counsel to the Petitioners opined that the INEC is positioning to be both “goose and gander.”
The petitioners are challenging the results of several electoral wards, including Gayam, Ciroma, Azara, Kanje/Abuni, Ashige, and more, citing inflation of votes in favor of the 2nd and 3rd respondents, as well as wrongful vote cancellations.
To support their case, the petitioners presented evidence from all agents in the disputed wards and copies of Form EC8A (Polling Unit Results) obtained from INEC, as well as duplicate copies issued to party agents.
Based on the polling unit results before the tribunal, Hon. David Emmanuel Ombugadu emerges as the victor in the last gubernatorial election in Nasarawa State.
The petitioners argue that the Form EC8B, D, and E presented by the respondents differ from the foundational sources of election data, including Form EC8A series, BVAS Machines Reports, and CTC IRev Portal Reports.
According to sources, the ongoing controversy raises significant questions about the integrity of the election process in Nasarawa State, as the tribunal continues to assess the evidence presented by both parties members of the public are waiting for the verdict of the Tribunal.
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