By EMMANUEL OGEBE, Esq

The Presidential Election Petition Court (PEPC) judgment has been described by one of our lawyer colleagues who monitored the trial with me as having overturned every electoral progress in Nigeria since 1999. A retired Justice of the Supreme was even more dire in his assessment saying the presidential election judgment turned Nigeria jurisprudence upside down and could be the death knell of the judiciary.

Below I highlight just a few of the absurdities and inconsistencies from the enigmatic judgment

1. Curiously, the court said they took judicial notice of the fact that Peter Obi had Anambra state indigeneship, even though it wasn’t an issue before them, but the court didn’t take judicial notice of the fact that Tinubu has a Guinean citizenship even though the evidence was before them. Obi’s indigeneship of Anambra had no national security or constitutional implication whereas Tinubu’s citizenship of Guinea and lies about same have obvious national security implications.

2. The court paradoxically threw out the petitioners’ case because they did NOT follow the court’s rules then upheld Tinubu’s election despite its NOT following election rules, INEC guidelines and the constitution. In other words, a Petition was lost for rule non-compliance and a Presidency won with rule non-compliance!

3. The court said the petitioners failed because “Paragraph 4(5) of said Schedule mandates as follows: (5) The election petition shall be accompanied by(a)a list of the witnesses that the Petitioner intends to call… AND (emphasis added)

© copies or list of every document to be relied on at the hearing of the petition.”

However the court said the respondent didn’t lose the election when he didn’t get 25% of the vote in 2/3rds of the states

AND (emphasis added)

FCT.

In other words, AND means “together with” documents and is mandatory for the petitioners’ petition but AND doesn’t mean “together with” FCT and isn’t mandatory for the respondent’s victory.

4. The court said noncompliance of the petitioners with the rules above requiring them to file evidence along with their petition decimated most of their witnesses. However “By subparagraph (6) of that paragraph, a petition which fails to comply with the above requirements shall not be accepted for filing by the Secretary” meaning the court’s secretary was guilty of noncompliance with the same law section by accepting an incomplete petition.

In other words, noncompliance by the petitioners with provisions of the same section was bad but noncompliance by the Secretary of the court on the same provisions was good!

5. Following from above, the court expunged the exhibits and witnesses of the petitioners for noncompliance with this provision thus eviscerating their case whereas the very clear sanction prescribed in that provision was non-acceptance of the petition NOT expungement of evidence and witnesses.

My defamation lawsuit in USA against the Wall Street Journal over the Chibok girls I relocated to America was struck out for my inability to file a document during the Covid lockdown.

This year, the US Court of Appeal overturned the dismissal by the lower court and sent it back for a hearing on whether a less drastic sanction than dismissal should have been given.

In the context of the presidential case, the stipulated sanction was non-acceptance of the petition. Therefore, conceivably the Supreme Court could on appeal similarly rule that an inappropriate sanction was applied which was excessive.

6. The court said actions of INEC had the benefit of the presumption of regularity despite the clear discrepancies of their actions including tendering of hundreds of blank sheets as polling results but the court did not grant the benefit of presumption of regularity to the petitioners for the acceptance of their petition by the Court Secretary.

In other words, if INEC’s blank result sheets were presumed in order then by the same token petitioners’ partially filed petition was also in order.

It should be noted further that they completed their submission subsequently but INEC never completed the results for the blank sheets ever nor the IREV upload either!

7. The court said that it is trite law that you cannot visit the sins of one party against another but went ahead to punish the petitioners for the failures of the court’s Secretary. The provision is clear that the court Secretary “shall not” (mandatory) accept an incomplete petition. The acceptance by the court secretary implied compliance upon the presumption of regularity and the court could not turn around and punish the petitioners for the sins of the court Secretary. If the court Secretary had complied with the procedure of the provisions by refusing to accept the petition, the petitioners would have immediately cured the defect by attaching the exhibits and refiling same. Acceptance by the court Secretary and rejection by the court amounts to the court approbating and reprobating and at the same time visiting its own sins upon the petitioner. In other words, having been told by the court’s official that their petition was in order, the court cannot now say it was not in order so late in the game.

In my defamation lawsuit against the Buhari regime over the Chibok girls I sponsored to school in America, the AGF did not present a defense but tried to dismiss the case claiming it had two different suit numbers. The Abuja court dismissed both the AGF’s motions to strike out on the grounds that the two numbers were erroneously issued by the court registry and the sins of the registry should not be visited on the plaintiff for no fault of mine.

8. It should be noted that the functions of the court Secretary imposed here are both magisterial and ministerial. Ministerial (administrative) in the sense that the court Secretary has the duty to accept the petition and Magisterial in the sense that the court Secretary has to review and adjudicate whether the petition is worthy of acceptation before doing so.

Unlike a court clerk, the court secretary is a lawyer and has a duty of initial legal review of the petition for compliance before acceptance.

The court Secretary is therefore a gatekeeper keeping pure the streams of Justice from useless and baseless petitions. Concomitantly, the initial review not only protects the court but also the petitioner by giving them early notice to cure their filing to avoid a monumental waste of time and resources.

Therefore the court Secretary and the INEC chairman had similar ministerial and magisterial duties:

A. Ministerial (administrative) to accept petitions and to collate results respectively

B. Magisterial (legal) to review for compliance before petition acceptance or presidential declaration respectively.

Therefore both the court Secretary and INEC Chairman failed in performance of their duties because:

i. The Petition AND Evidence were non compliant with the provisions due to incompleteness to warrant acceptance by the court secretary

ii. The 25% votes in 2/3 of the states AND FCT were noncompliant with the constitution due to incompleteness to warrant a presidential declaration by the INEC Chairman.

In both cases, the court Secretary and INEC Chair ought to have rejected the election petition and election declaration pending refiling and run off respectively for full compliance.

In other words, the court cannot claim that Petition AND Evidence is conjunctive (combined) and mandatory for the petitioner but 25% of votes in 2/3 of the states AND FCT is disjunctive (separate) and not mandatory for the presidency.

9. The court said all Nigerians are equal therefore the people of FCT cannot have special rights of 25% vote requirement. However the people of Abuja have no state, no governor and no members of the House of Representatives. How then are they equal to other Nigerians in the eyes of the court?

Indeed the courts have adjudged the unfairness of the situation of the people of FCT and in a landmark lawsuit by my recently deceased learned colleague, co-activist and friend declared in 2018 that Abuja people were deserving of a cabinet member. Since the creation of Abuja, they have had no minister till this year so how have they been equal? 25% requirement in FCT for a president who then appoints an FCT minister is the mechanism for parity and fairness in lieu of not having a governor.

10. The court said Amazon Witness PW7 had the “audacity and temerity” to claim the Amazon server health status report as her own when it wasn’t. Yet the court also said she was a candidate in the election under LP so not an expert witness. However if the reports were open sourced from Amazon server then it was immaterial if she was an interested party in the matter. The documents were procured but not produced by her so it could not have been tainted by her predisposition to one party.

11. The court disqualified PW7 as a US expert witness because she contested for the house of reps under LP but accepted Respondent’s witness as a US legal expert even though he was a serving APC senator (having contested in the same election exercise as PW7 and the petitioners.)

12. Similarly the court rejected PW7’s letter of employment from Amazon although she didn’t claim to represent Amazon but stated she was a certified Amazon server engineer. However the court accepted 2^nd Respondent’s witness’ testimony that he was a lawyer in the US despite rejecting his ABA ID card and complimentary card tendered.

13. Perhaps the biggest irony in the whole verdict was a court going out of its way to denude law and order by ruling that rules do not apply – the very opposite of its role and function in society. The court misinterpreted itself to meaninglessness and irrelevance and only the Supreme Court at this point can save the judiciary from suicide or a self-imposed death sentence.

•Being Part 16 of the 2023 Election Diary of Emmanuel Ogebe, Esq, a prominent US-based international human rights lawyer and Nigerian pro-democracy advocate with the US NIGERIA LAW GROUP in Washington. Last month, he marked the 27^th anniversary of his abduction and torture by Gen. Abacha for demanding an investigation of the assassination of pro-democracy icon over an election annulment. Over the summer, he traveled to Nigeria to monitor the election trials.

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