Shettima can’t be disqualified; you can’t nullify election because of our failure, INEC tells Tribunal

The Independent National Electoral Commission (INEC) has told the Presidential Election Petition Court (PEPC) not to disqualify the All Progressive Congress (APC) vice presidential candidate, Senator Shettima Kashim and by extension the presidential candidate, Senator Bola Ahmed Tinubu, over double nomination of the former.

INEC made the submission at the Court of Appeal holden at Abuja in the matter of the election to the office of the President of the Federal Republic of Nigeria held on the 25th day of February 2023 with petition no: CA/PEPC/03/2023.

The suit was between Mr. Peter Gregory Obi and his Labour Party (LP), herein referred to as the Petitioners, and the Independent National Electoral Commission (INEC), Senator Bola Ahmed Tinubu, Senator Shettima Kashim, All Progressive Congress (APC), herein referred to as the Respondents.

INEC also told the Tribunal that it cannot nullify the 2023 general election because it failed to abide by its own rules and regulations guiding the electoral process in the country.

Speaking in its reply address on points of law to the arguments canvassed in the petition written address filed on the 23rd of July, 2023, INEC submitted on the allegation of double nomination of Shettima by the Petitioners in their address, that it is not a qualifying or disqualifying factor in the Constitution, hence cannot be raised or ventilated in the Petition.

INEC stated that the Petitioners had no response to its submission on double nomination and that their silence on the issue is a concession.

It, therefore, urged the court to “discountenance all other arguments of the Petitioners tending to make out a case or disqualification on the basis of multiple nomination” of Shettima.

INEC stated: “It is the contention of the Petitioners in their written address on the alleged disqualification of the 3rd Respondent on the allegation of multiple nomination that the pronouncement of the Supreme Court in the case of PDP v INEC (2023) were made obiter as the main issue determined was the issue of locus standi of the Appellant in that case.

“This Court was urged by the Petitioners not to follow or apply the pronouncement of the Learned Justices of the Supreme Court in that case. We submit that Petitioners’ contention is misconceived.”

According to INEC, the Supreme Court admonished lower Courts not to treat the dictum of the Supreme Court with impunity as no lower Court may treat an obiter of the Supreme Court with careless abandon or disrespect.

It added that the Supreme Court is the final Court of Appeal in Nigeria and that its decisions are therefore binding on every Court below it.

The Commission urged the Tribunal to follow by the pronouncement of the Supreme Court which is directly on same issues ventilated by the Petitioners in respect of the alleged multiple nomination of the 1st Respondent and discountenance all arguments to the contrary by the Petitioners. 

It submitted further that the Petitioners misrepresented facts on this issue of multiple nomination of the 3rd Respondent. Continue Reading…

“The evidence before the Court is that the matter was received by the 3rd Respondent 0n 5th July, 2022, after he had accepted his nomination as the­ presidential candidate.

“We invite Your Lordships’ attention in this regard to Exhibit RA1 which is the certified true copy of the letter of the [APC] conveying [Shettima’s] withdrawal to [INEC] and notifying [INEC] of the conduct of fresh primaries to nominate a replacement candidate for the Borno Central Constituency.

“This Letter bears an acknowledgment or the [INEC] indicating receipt of same on the 13th of July, 2022. 

“Exhibit RAl sounds a death knell to the entire submissions or the Petitioners on this issue as it completes the process of withdrawal in section 31 of the Electoral Act.

“Therefore, the submission of the Petitioners anchored on the Form EC11C is unavailing to them.

“It must also be stated that Form EC11C is the prescribed form for substitution of candidates and contains in that regard the details and signature of the previously nominated candidate attesting to his voluntary withdrawal and the name of the newly nominated candidate attesting to his nomination.

“To, therefore, rely on the date contained in the Form EC11C as the date [INEC] was notified of the withdrawal of [Shettima] is with due respect to the Petitioners wrong and a misstatement of the true state of affairs.”

On the issue alleging non-compliance of its own rules and regulations with the provisions of the Electoral Act INEC faulted the Petitioners who contended in their address that the provisions of [INEC’s] Regulations have the form of law and can form the basis to question an election.

According to INEC, the Petitioners argued that Section 134(2) of the Electoral Act does not relate to the provisions of the Regulations and Guidelines of the 1st Respondent, adding that the hub of the Petitioners’ contention is that the requirement to transmit results electronically were provided in the Regulations and recognized by the Supreme Court in Oyetola v INEC as part of the electoral process.

It also faulted the Petitioners as alleging that non-compliance with the Regulations can form the basis of a challenge to the outcome of an election.

INEC submitted that this contention by the Petitioner is misconceived for the following reasons:

“Firstly, contrary to the submission of the Petitioners, section 134(2) of the Electoral Act renders ineffectual for the purposes of questioning an election a complaint predicated solely on non-compliance with the provisions of the Regulations and Guidelines of [INEC].”

It noted that “the Supreme Court held that failure to obey the directive or instruction of [INEC] in the said Regulations and Guidelines cannot be relied on as ground for an election petition to invalidate the election of [Tinubu] and [Shettima]because such failure is not contrary to the provision of the Electoral Act, 2010, as amended.

“This is so because S. 138(2) of the Act provides that an act or omission which may be contrary to an instruction or directive of the commission or of an officer appointed for the purpose of the election, but which is not contrary to the provision of this Act shall not of itself be a ground for questioning the election,” it insisted.

It also faulted the reliance placed by the Petitioners on the case of Oyetola v lNEC.

The Petitioners submitted that the finding of the Supreme Court on the interpretation of Clause 38 of the 1 1 Respondent’s Regulation stressing that the IReV forms part of the electoral process.

INEC stated that the interpretation is not an authority in the matter that there is a mandatory requirement to electronically transmit results to the IReV in real time before collation or results and that the apex court quickly stated that “the collation system is made up of centres where results are collated at various stages of the election”. 

INEC stated further: “The [INEC’s] Regulations did not in fact make any mandat01y stipulation to electronically transmit results of the election before collation of results or for electronic transmission in real time to be in place before collation of results can be validly carried out.

“To the contrary, [INEC’s] Regulation creates an option for what to do in the event that electronic transmission of results of the election in real time becomes impracticable.

“The options created knocks the bottom off any contention that there is a mandatory stipulation to electronically transmit results before collation.

“Another point which must be made here is in respect of the Petitioners’ contention… that the decision of the Federal High Court… cannot stand in the face of the decision in Oyetola v INEC.

“As earlier demonstrated, the Supreme Court in Oyetola v INEC was not called upon to decide if [INEC] is mandatorily obligated to transmit results of the election electronically, nay, that did not form part of the issues before the Supreme Court for determination in that case.

“The remark of the Supreme Court on the place of IReV in the electoral process was not a remark on any compulsory or mandatory obligation to so do before results of an election could be collated. 

“On the other hand, the specific issue decided upon… relates to the determination of whether a mandatory obligation on [INEC] to electronically transmit and collate results exist.

“The Federal High Court decided clearly that no such mandatory obligation exist. It must be noted that by a recent decision of the Lagos Judicial Division of the Honourable Court in Appeal No: CA/L/\G1CY/J3212023AII Progressives Congress v. Labour Party & two Ors. the decision in Exhibit XI as upheld and construed against the Petitioners as issue estoppel.

The Court of Appeal in that case dismissed a similar argument by the 2nd Petitioner contrary to the decision in Exhibit XI as being an abuse of court process. 

The attempt to therefore seek umbrage under the pronouncement of the Supreme Court in Oyetola v INEC as validating a mandatory requirement to transmit results electronically is with all due respect a gross misconception of the decision in that case.

“Your Lordships are respectfully urged to so hold and discountenance that submissions of the Petitioners to the contrary,” said INEC.

In conclusion, INEC held: “In view of the foregoing arguments and the fuller arguments canvassed in the written address filed by [INEC], Your Lordships are respectfully urged to discountenance the arguments canvassed by the Petitioners and resolve all issues posited by the Petitioners against them.” Continue Reading…