Any Rerun Poll Should Be Between Atiku and I, Tinubu Tells Court

President Bola Tinubu has appealed to justices of the Presidential Election Petition Court (PREPEC) in Abuja to exclude the presidential candidate of the Labour Party (LP), Mr. Peter Obi, and his party in the event of any rerun presidential election, claiming that only him and the candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, are constitutionally qualified to recontest.

Tinubu argued that if the justices void the February 25, 2023 presidential election, Obi and his party will not be qualified to recontest.

But Obi urged the five-member panel of the PREPEC not to subvert the will of the people as expressed in the February 25 presidential election, stressing that they should sack Tinubu without further delay.

Tinubu faulted both Obi and LP for asking the court to cancel the election and compel the Independent National Electoral Commission (INEC) to conduct a fresh poll in which he (Tinubu), Shettima and the All Progressives Congress (APC) would not participate.

He argued that should the relief be granted, Obi and LP would not derive any benefit, having been constitutionally barred from contesting the rerun election.

President Tinubu’s submissions were contained in his final written address in response to the petition of Obi and the LP challenging his declaration as president.

The Chairman of INEC, Prof. Mahmood Yakubu, had on March 1, declared Tinubu the winner of the February 25 presidential election with 8,794,726 votes while Atiku and Obi reportedly scored 6,984,520 votes and 6,101,533 votes, respectively.

While citing alleged issues of substantial non-compliance with the electoral laws, corrupt practices, non-qualification amongst others, Obi and LP on one hand, as well as Atiku and PDP on the other hand, had in their petitions, asked the court to nullify the election.

Both Obi and Atiku are laying claim to victory on the grounds that each of them scored a majority of lawful votes cast at the poll.

Alternately, they urged the court to order for a re-run election to decide the authentic winner of the poll.

However, Tinubu in his final written address to the petition by Obi and LP, which was filed by his lawyer, Chief Wole Olanipekun (SAN), submitted that the evidence tendered by the petitioners failed to prove claims of non-compliance and corruption capable of voiding his election.

He, however, added that: “In the very unlikely event that the election of February 25, 2023 is voided, the only candidates constitutionally prescribed to contest any subsequent election shall be the 2nd respondent and the candidate of the PDP who came second, by scoring the next majority of votes in the highest number of states (19 states), to the 1st petitioner’s 16 states, and also coming second by plurality of votes, having scored 6,984,520, far and above 1st petitioner’s 6,101,533 votes.

“In effect, the petitioners have no locus standi to ask for relief 2, both constitutionally and legally; constitutionally, because he is barred from contesting; legally, because he has no benefit to derive from the said relief, assuming it is granted”, he said.

Contending that the court cannot decree an order for a fresh election, outside the provisions of the constitution, Olanipekun who cited a plethora of authorities, said: “The law is settled that ‘a party prosecuting an action would (only) have locus standi where the reliefs claimed would confer some benefits on such a party.’”

According to him, the only candidates constitutionally prescribed to contest any subsequent election shall be the 2nd respondent and the candidate of the PDP who came second, by scoring the next majority of votes in the highest number of states (19 states), to the 1st petitioner’s 16 states, and also coming second by plurality of votes, having scored 6,984,520, far and above 1st petitioner’s 6,101,533 votes.

Citing Section 134(3) of the Constitution, Olanipekun submitted that, “the 1st petitioner is constitutionally barred from participating in any election, in the very unlikely event that the election of February 25, 2023 is voided”.

Section 134(3) provides thus: “In default of a candidate duly elected in accordance with subsection (2) of this section, there shall be a second election in accordance with subsection (4) of this section at which the only candidate shall be – (a) The candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and (b) One among the remaining candidates who has a majority of votes in the highest number of states, so however that where there are more than one candidate with majority of votes in the highest number of states, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.”

Similarly, Olanipekun also faulted the petitioners’ prayers for the cancellation of the election and an order mandating INEC to conduct a fresh election, on the grounds that the petitioners did not suggest who the participants or candidates at the said election would be.

“Most humbly, the court cannot decree an order for a fresh election, outside the provisions of the Constitution,” he said.

The learned silk drew the attention of the court to the testimony of INEC’s sole witness, who observed that Obi’s name was nowhere in the party’s register (Exhibit RA18) before he became the presidential candidate.

He added: “In any event, the 1st petitioner has failed to comply with the law of the land, by first making himself a member of the 2nd petitioner, before proceeding to purportedly contest election and even file a petition.

“We, again, refer to the un-contradicted evidence of the respondents’ sole witness, who observed that the name of the 1st petitioner is nowhere located in Exhibit RA18.

“Arising from the foregoing, is the fact that the petition is improperly constituted, and, as such, at the end of evidence/trial, it is clear that it does not vest jurisdiction in this honourable court to entertain it, and more particularly, to grant the reliefs sought.

“The essence of all these is that in the absence of the PDP and its candidate, the NNPP and its candidate, the grounds of the petition, the paragraphs making allegations against the parties and any evidence extracted during trial become incompetent and inadmissible in the absence of those parties.”

Meanwhile, Obi has urged the five-member panel of the election petition court not to subvert the will of the people as expressed in the February 25 presidential election.

Obi, in his final written address in support of his petition, challenging the declaration of Senator Bola Tinubu as winner of the presidential poll, urged the panel to sack the president.

He reminded the panel that its powers of adjudication as provided in the Nigerian Constitution was freely donated to them by the people, hence the need to uphold the confidence reposed in them by the people.

Reacting, Obi and LP, in their final written address filed on their behalf by their lead counsel, Dr. Livy Uzoukwu (SAN), submitted that, Tinubu and Shettima’s defence was “devoid of any scintilla of merit”.

They urged the tribunal to hold that the petitioners’ case is meritorious and grant them their reliefs, which include the nullification of Tinubu’s election and declare them winner or in the alternative, order the conduct of a fresh election.

They also argued that refusal of the panel to sack Tinubu over alleged breach of the Constitution is tantamount to dereliction of duty, adding that the judges should emulate the Supreme Court of Kenya, which in  the interest of the people and democracy, nullified the election of President Uhuru Kenyatta on account of established corrupt practices.

“In conclusion, may we respectfully commend to your lordships the words on the marble of the Supreme Court in the case of Raila Odinga and Anor V Independent Electoral and Boundaries Commission and Others (2017) KESC 31 (KLR) para, 399; when in nullifying the election that returned H.E. Uhuru Kenyatta as the winner of the Kenyan presidential election in 2017, ex-cathedra said; ‘13991 what of the argument that this court should not subvert the will of the people? This court is one of those to whom that sovereign power has been delegated under article 1(3)c) of the same constitution. All its powers, including that of invalidating a presidential election is not self-given nor forcefully taken, but is donated by the people of Kenya. To dishonestly exercise that delegated power and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so, however popular the invitation may seem.

“Therefore, however burdensome, let the majesty of the constitution reverberate across the lengths and breadths of our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions learning; let it toll from our sanctums of prayer; and to those who bear the responsibility of leadership, let it be a constant irritant,’” Obi and LP told the panel.