By Ebun-Olu Adegboruwa SAN

A lot of dust is still raging concerning the decisions of the Presidential Election Petition Court, ostensibly from interested persons who have felt shortchanged by the turn of events, rightly or wrongly. Legally speaking, the process of the Court is totally different from public perception, as every court case depends largely on the state of the facts, the capacity of the legal team, the state of the law and the integrity of the judicial officer. The case presented through an election petition is particularly peculiar because it is very technical, sui generis and time bound. Beyond this, a presidential election petition is worse given the large population, the terrain to cover, the incumbency factor and the role of the electoral umpire.

The role of lawyers is critical to the success or failure of cases generally. It is a question of morality and law, for counsel to decide as a matter of principle on where to stand on crucial issues. Now it is very common in Nigeria for lawyers to indulge in legal prostitution purely for commercial advantage. Thus, it is not unusual that you would find in our law reports cases in which the same counsel has appeared and argued different, conflicting and inconsistent legal issues, in respect of the same or similar set of facts. Lawyers do this a lot, especially in political cases, pre-election matters and election petitions. Without doubt, a person who stands for nothing will fall for any and everything. So you see a situation where in a counsel had appeared for the candidate of one political party at a given time in the past and had taken a very strong position on a legal issue, defending it even up to the Supreme Court. If that candidate succeeds in the election or the court case, then the stand of counsel in that case is right and proper and he would hold on to it tenaciously. The problem is always when the candidate fails.

In Nigeria, politics is not based on principles at all, as politicians regard themselves as harlots, in a way, with liberty to cross from one political party to the other even for no reason at all other than to seek political power. And this is because the politician in Nigeria considers himself to be of no relevance once he is not holding any political office; there are no more free funds, no dependence on public patronage, huge estacodes and perpetuation of impunity and oppression. What this means is that the politicians end up corrupting and polluting the lawyers. Let me explain. Mr A ran in the election for the post of governor of All Progressive Congress and he lost. He rushed to retain lawyer B to help him upturn the declaration of results. Lawyer B would do everything to ensure that the petition succeeds and in doing this, he has marshalled some legal points, but at the end of the day, Mr. A lost the petition. Desperate for power at all costs, Mr. A runs to the People Democratic Party and he begins to lobby and galvanize support to emerge as the candidate of PDP for the next governorship election after four years. Mr. A eventually emerged as the governorship candidate of the PDP and by hook or crook, he was declared as the winner of the governorship election. Mr. C who lost the election is bent on upturning it at the election petitions tribunal. Meanwhile, Mr. A has retained the legal services of the same counsel that represented him four years ago when he lost the election.

In the last case that Mr. A lost, his lawyer (B) had canvassed most passionately that the election was marred with violence, thuggery, corrupt practices, manipulation, falsification of results and compromise by the electoral umpire, all in a bid to discredit the election. Now as counsel to Mr. A four years later, the same lawyer B is set to defend the electoral umpire, he is set to present the election as the best and most credible contest witnessed in the whole world. To do this, lawyer B would have to discard the legal positions that he held in the past, he has to polish the ambiguities and lacunas in the Electoral Act that he identified four years ago, now canvassing different and inconsistent arguments. In some other cases, lawyers who have represented INEC as the electoral umpire for many years and who had laboured so much to defend all INEC guidelines, all INEC lapses and shortcomings, still find themselves representing politicians to discredit the same INEC that they had celebrated. Whereas nothing has changed at all, it is the same INEC, the same chairman, the same adhoc staff, the same iREV, the same BVAS and the same balloting system.

This was possible in the past, when lawyers bounced up and down in court with contradictory legal views. It would take years after the judgment to discover that the lawyer took a totally opposing view in a previous case. Technology has changed all that as it is now possible to click on a principle of law and straightaway discover the cases that a particular lawyer has handled and the positions he canvassed in those cases. What is more, artificial intelligence will tell you the stand of your judge on the legal issues to be canvassed before him. I believe that this factor played out in these cases, to influence the outcome of the decisions reached one way or the other. In other jurisdictions, counsel would disclose his stand to the client at the time of taking the brief and if he believes strongly in that view, advise the client against the proposed suit or refer him to another counsel. In this particular case, their Lordships even jumped upon books written by counsel to some of the parties wherein he had canvassed a legal point different from the stand he was taking in court. This is also the work of artificial intelligence and it is good for our practice, if properly utilized.

The merit of the cases

The court held that the petitions were unmeritorious in that the petitioners failed to convince the court that the election was not conducted in compliance with the Electoral Act or that such non-compliance is substantial to overturn the declaration made by INEC returning President Tinubu and Vice-President Shettima. The consequence of the adversatorial regime of our law is that the burden is placed squarely upon the person making an assertion. Thus, if it is your claim that a particular election has been marred by irregularities or corrupt practices, you bear the onus of proving the existence of that fact. Otherwise, it should just be so easy for everyone to make all manner of claims and expect to be crowned upon it, even without any foundation for their existence. In this case, it is the responsibility of the petitioners, to prove to the court for instance that INEC closed down its portal or blocked the iREV and transmission system from the public to enable it manipulates the election result. The Court made a crucial finding that none of the two petitioners tendered a single polling unit result issued by INEC. In one case, the petitioner stated that the said results were blurred and could not be traced to any polling unit whilst in the other case; the Court disqualified the witnesses that tendered the results. In an election involving 176,000 polling units, 8,000 wards, 774 local government areas, 36 States and the FCT, it will be an uphill task to upturn the declaration of results from these areas without showing factually how the said results should be faulted. The Court was of the view that since the petitioners had agents at the polling units who signed all the result sheets, they could not turn around to claim that the results uploaded by INEC were blurred and thus could not be traced to specific polling units.

Two issues arise from this analysis. First, we must decide on the law to regulate evidence in court between the Evidence Act and the Electoral Act. For the purpose of uniformity and completeness, we should deploy the Evidence Act to regulate evidence in all court proceedings. The issue of the eligibility of witnesses, whether voluntary witnesses or those summoned through subpoena should be decided based on the provisions of the Evidence Act and not the Electoral Act. Evidence is general to all court proceedings, whether in land cases, chieftaincy, maritime, sports and election petitions. To this end, we cannot isolate elections from the general provisions of the Evidence Act. Evidence is listed as Item 23 in the Exclusive Legislative List of the Second Schedule to the Constitution. Thus, if there is any provision in the Electoral Act regarding the summoning of witnesses that contradicts any provision of the Evidence Act, the latter should prevail. In the regime of land instrument registration, the Supreme Court has recently departed from laws enacted by the various states on the admissibility of land instruments in court, holding that states have no competence to enact laws to regulate evidence in court. Similarly, the courts do often ignore the various Rules of practice and procedure of the Courts which demand that documents to be tendered at the trial be listed and frontloaded since this is not contained in the Evidence Act. The reason why this is important is that in disqualifying the witnesses in this case, the Court also discountenanced all the documents tendered by them, which decision proved very fatal to the two cases as the petitioners could not possibly proceed without evidence. In essence, there was no foundation for the cases presented by both petitioners beyond the issues of law relating to the status of the FCT, double nomination, dual citizenship, qualification of candidates, etc.

Secondly, we must also resolve the seeming conflict between the Electoral Act and the various criminal law statutes. Rigging an election is a crime, so too falsification and manipulation of election results, ballot snatching and general corrupt practices. We cannot have two separate standards for the proof of crime, whether in election petition or in other cases. Any killing that occurs during the conduct of an election is simply murder and the standard of proof should be as stated in the criminal law and it should not be treated as mere electoral violence. If this is the case (and indeed it should be), then it means the criminal conduct of parties during an election cannot be determined by the tribunal through an election petition.

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