Behind Atiku’s Voyage of Discovery

By Onikepo Braithwaite

Nigeria and Nigerians, never seem to amaze me. We move from one saga to the other, like a television ‘soap’ series where there is always one plot or the other, and we seem to love spending precious man hours on unproductive issues, and even let them overshadow the more important things that we should be concentrating on, like the hardship that Nigerians have been passing through due to decades of institutional corruption, inefficiency and bad governance.

When on October 1, people were sending me Happy 63rd Independence Day messages, I asked a couple of them what the greeting meant. What is happy or significant about our 63rd Independence Day? Tears filled my eyes when I thought of a country like South Korea that was in a pitiable condition at the time of our independence, but over this same period of time that we have wasted on nonsense, has transformed to a First World nation, and without any mineral resources to bolster their economy, I might add; or a place like Dubai which has become the tourist centre of the world in less than 30 years, possibly the number 1 that Nigerians, especially our politicians love to visit and also reside there, while Nigeria shamefully remains stagnant or even continues to regress, despite all the ‘goodies’ that God has endowed our country with. It is indeed, painful and thought provoking. What Nigerians want to see is traction and progress, in all spheres of our lives; we are excited and hopeful that our country will start to evolve to meet global best practices and the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), instead of the daily unfolding fruitless dramas that seem to be the norm these days.

Unimpeachable Candidates: A Thing of the Distant Past

Since we tend to drift from one drama to the other, as far as I’m concerned, it is safe to conclude that Nigeria left the ‘Scene’ of unimpeachable political candidates possibly since the time of our founding Fathers, and today, we have sunk so low that it is the norm for most of our so-called leaders to have one skeleton or the other in their cupboard. We haven’t forgotten the money laundering allegations levelled against the PDP Candidate, Atiku Abubakar and his wife in USA, and financial impropriety allegations levelled against him here in Nigeria, even by his former Principal, former President Obasanjo (though OBJ never seems to see much good in others); nor the issue of the Labour Party Candidate, Peter Obi and the Pandora Papers; nor have we forgotten how former President Buhari had issues with his WASC Certificate during the 2019 PEPT. Government officials who do not have allegations of financial impropriety levelled against them, are in the minority. Unfortunately and embarrassingly, the list of politicians and the skeletons in their cupboards seems to be endless, and so, I’m wondering why those who also have things to hide are trying to appear saintly, and casting stones on the ‘alleged suddenly lone sinner’, President Bola Tinubu! Or is it just the attitude of a spoiler, as we say in Yoruba: “Kaka ki eku ma je sese, afi se awadanu”, that is, “If I can’t have it, nobody else will have it, so, let us scatter it”. This is definitely not to say that because most of our leaders are accused of something or the other, that I condone wrongdoing, No. I do not.

The present frenzy about the American court case centred on Chicago State University and President Bola Tinubu’s credentials, Case No. 1:23-cv-05099 In Re Application of Atiku Abubakar; Chicago State University, again evinces many facts, some of which I have always maintained, and at the risk of sounding like a broken record or Cacofonix (to those who don’t want to hear it), I will once again restate some of them: 1) Law and Morals are not the same. Sometimes they may intersect, in that, what is immoral may also be illegal, like Stealing, but many other times, many things that are immoral are either not unlawful, or are not caught within the sanction process of the law; 2) Law is not logic, and the administration of justice isn’t done by logic, or settled by emotions or in the court of public opinion – we have the Constitution (which obviously requires a total rejig), statutes (in the case of electoral matters, the Electoral Act 2022 (EA), our legal principles, rules of interpretation and good judicial precedent, as our tools; 3) The Law can be an ‘ass’, depending on which side you are on; 4) The Courts must start to award punitive costs, when Lawyers bring actions which constitute gross abuse of court process to clog up the court system; 5) The LPDC & LPPC should be more up and doing, in the discipline of Lawyers who engage in abuse of court process and inciting the public against the Judiciary/needlessly bringing the Judiciary into disrepute.

Judiciary as a Scapegoat 

As usual, the Judiciary is the scapegoat, and has already been put on trial again. In fact, the Supreme Court has already been tried and convicted, if they do not admit the fresh evidence Alhaji Atiku’s legal team seeks to introduce on appeal at the Supreme Court, or if they do not disqualify President Bola Tinubu, or if they do not overturn the 2023 Presidential election and call for a new one, possibly based on the new American court proceedings about his credentials, since it is obvious that the Presidential Election Petitions failed woefully on most grounds at the PEPT.

But, as a Lawyer of 32 years standing who does nothing but study the law, day in day out, it is my duty to point out a few facts, since many of our learned colleagues have gone to town, turning the law on its head, to mislead the public.

Position of the Law: The Constitution, Electoral Act and Judicial Precedent 

Section 131 of the Constitution sets out the ‘qualifications for election to the office of President’, while Section 137 provides for disqualification for election to the office of President. This is self-explanatory. It means the conditions you have to meet in order to run for election to the office of President, or conditions, which if you don’t meet, you cannot run for office of the President. It seems to me that, from the wordings of those constitutional provisions and by virtue of the new Section 29(5) of the EA, matters that border on the qualification of a candidate to stand for elections or disqualification, are pre-election matters, as they are issues which come into play before the election, which by virtue of Section 285(9) of the Constitution and 29(5) of the EA must be filed by a co-aspirant of the same party  at the Federal High Court not later than 14 days from the date of the occurrence of the event or decision complained of. This provision is clear and unambiguous. Section 285 (14)(a)-(c) of the Constitution then goes on to define pre-election matters, while Section 29(5) of the EA restricts to co-aspirants who participated in the Primaries, those who can institute proceedings in which they have reasonable grounds to believe that information provided to INEC by their fellow aspirants in their Forms are false.

My first submission therefore, is that it is trite that matters bordering on qualification and disqualification of a candidate to run for election is a pre-election matter, which in the case of a candidate of XYZ Party, can only be instituted by another aspirant who ran in the XYZ Party Primaries for the same electoral position (not even any random member of XYZ Party), and not by a member of ABC Party who ran in the election against the candidate of the XYZ Party being complained of. This is a well settled principle of law, enunciated in a plethora of cases. In Akinlade & Anor v INEC & Ors (2019) LPELR-55090 (SC) per Ejembi Eko, JSC, the Supreme Court held that “…. the disqualification of a candidate on grounds of false information in his Form CF001 is a pre-election matter, by dint of Section 285 (14) of the Constitution”. Such action must be brought within 14 days of the occurrence of the event complained of, and “A cause of action extinguished and statute barred by operation of Section 285(9) of the Constitution remains extinguished, and cannot be reviewed subsequent in an election petition as a ground for questioning an election”.

It is therefore, strange that though this principle was also well enunciated by the Supreme Court in a past case concerning Alhaji Atiku Abubakar after the 2019 Presidential election, that is, Atiku Abubakar v INEC 2020 12 N.W.L.R. Part 1737 Page 37 where the Apex Court also made it clear that disqualification of a candidate on grounds of false information contained in his Form CF 001 or EC 9 (Affidavits in Support of Personal Particulars of Persons Seeking Election into Office) is a pre-election matter, ironically, he is the one that is harping on this matter which he not only appears not to have locus standi to bring, not being an APC Presidential Aspirant, but seems to be time/statute-barred.

I will not delve into the subject-matter of the American case, since it has become ‘sub judice’ as whatever has resulted from the ‘Discovery and Inspection’ in it, has been sought to be presented  to our the Supreme Court in the pending appeal.

However, a pertinent question to ask is, whether the Supreme Court has the jurisdiction to admit fresh evidence.

Introduction of Fresh Evidence on Appeal

While it is possible for fresh evidence to be introduced on appeal with the leave of court, the conditions for such leave to be granted were restated in Williams & Anor v Adold/Stamm Intl (Nig) Ltd & Anor (2017) LPELR-41559(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC, the first condition being that the evidence sought to be adduced must be such that it couldn’t reasonably be obtained for use at the trial, or they were matters that occurred after judgement had been delivered. President Tinubu graduated from CSU in 1979. Alhaji Atiku even gave credit to late Gani Fawehinmi, GCON, SAN who died 14 years ago, for inspiring him to  follow up the CSU matter, confirming that it is an old issue which the details could have been sought and obtained long ago. Section 29(3) & (4) of the EA mandates that INEC publish the personal particulars submitted by all candidates within seven days of receipt of same, and anyone can apply for a CTC of those documents which will be made available by INEC, upon payment of the prescribed fee for same. The details of the personal particulars of all candidates in the 2023 general elections, were available to the public since 2022.

Last week, I watched an interview on our Arise TV, in which a young learned colleague, also a PDP Spokesperson in discussing the CSU case cited the case of Hon. Hassan Saleh v Chris Abah & Ors (2017) LPELR-41914(SC) which he used to introduce the topic of forgery, which is obviously a criminal offence, even if one may try to cleverly restrict it to only a constitutional matter of Section 137(1)(j) of the Constitution. In the 2023 Machina/Lawan case, though I respectfully disagreed with that decision, the Supreme Court looked beyond the Federal High Court’s Practice Directions that provides that pre-election matters should be commenced by Originating Summons, and the majority held that since there were contentious issues to be tried in the matter, the Petitioner should have come by way of Writ of Summons. In the same vein, the Apex Court can lift the veil of a constitutional matter which doubles as a criminal matter and decline it, since Section 232(2) of the Constitution, prevents the Supreme Court from assuming original jurisdiction in any criminal matter. This means that if we are to go by the fact that a party is claiming that a candidate forged any of his credentials or supporting documents, it appears that this is a matter that the Supreme Court may not have jurisdiction to entertain at first instance. It should have been a pre-election matter for trial at the Federal High Court. In Williams & Anor v Adold/Stamm Intl (Nig) Ltd & Anor (Supra), the Supreme Court held that for the sake of doing justice, it cannot confer on itself jurisdiction that the Constitution doesn’t confer on it. The Supreme Court is also not a trial court, and introduction of a fresh matter which requires proof beyond reasonable doubt and oral evidence, may breach a Respondent’s right to fair hearing which is guaranteed by Section 36(1) of the Constitution. In Chief Ikie Aghwarianovwe v Oborevwori Sheriff Francis Orohwedor & 2 Ors SC/CV/614/2023 delivered on July 7, 2023, the Supreme Court listed the requirements that must be established, for false information under Section 29(5) & (6) of the EA. Proof beyond reasonable doubt, is definitely required.

Conclusion 

I can only conclude that the American voyage of discovery and inspection embarked upon by Alhaji Atiku and his legal team, may be one that can only serve as a platform for public debate about morals, and at best, diminish the standing of a political opponent in the eyes of the public – in legal parlance, to bring the person into odium and opprobrium – nothing more.

As far as the law is concerned, the voyage appears not to have any merit – knowing that as the law stands today, it is trite that a political opponent in an opposing party does not have the locus standi to maintain an action based upon qualification against a rival in another party, nor can one bring an action that is statute/time barred.

Nevertheless, I think it may be time to review some of the relevant provisions of the EA, so that, in the end, it doesn’t appear as if people are allowed to profit from their alleged transgressions. Does it mean that if there is no bitter co-aspirant from the same party to challenge the issue of qualification on time, then a transgressor will get away with his/her sin, even if it may have been discovered after the little window provided ? Should issues of qualification and disqualification be allowed to be part of election petitions and open to opponents from other parties to raise, in order to give litigants the option to fire from all sides and fight from all available angles, instead of the restrictions placed by Section 29(5) of the EA? My dear colleagues, please, share your views on this issue.