President’s lawyers say party, candidate labouring in vain

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President Bola Tinubu and Vice President Kashim Shettima have branded the final written address of Labour Party (LP) presidential candidate Peter Obi at the Presidential Election Petition Court (PEPC) as a fiction, an expedition and a frolic of a sort.

They said, in their response to Obi’s final written address, that rather than prove the claims in his petition that he won the February 25 election, “the petitioners have been so busy and occupied milling around the worn out and obsolete subject of the contrived disqualification of the respondents.”

They also dismissed as untenable Obi’s call for a rerun between him and the PDP Presidential Candidate, Alhaji Atiku Abubakar.

Obi and his party, the respondents argued, even “have no locus standi to present a petition challenging the 2nd respondent (Tinubu) on the purported ground that he did not score 25 per cent of votes cast in the FCT, having been constitutionally barred and/or excluded from participating in any rerun election, in the unlikely event of the court making such an order, as Section 134(3(a) and (b) of the Constitution prohibits and excludes him from so-doing.”

Tinubu and Shettima’s response was filed on Friday by their lead counsel, Chief Wole Olanipekun, SAN.

Olanipekun said that in the unlikely event of a rerun, Obi and the LP would be excluded on the strength of provision of Section 134(3)(a) and (b) of the Constitution.

That part of the Constitution reads: “In a default of a candidate duly elected in accordance with subsection (2) of this Section their 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.”

Obi and the LP had, in their petition, asked the court to order a rerun on the grounds that Tinubu did not score 25 per cent of votes in the Federal Capital Territory (FCT).

Tinubu and Shettima, however, said in their reply to the final written address by Obi and the LP that the petitioners lack locus standi to present a petition challenging the 2nd respondent (Tinubu) on the purported ground that he did not score 25 per cent of votes cast in the FCT.

They said that even if a rerun was ordered, Obi can only vote and cannot be voted for, as the duel or contest will now be between the 2nd respondent and the person who scored “the next majority of votes in the highest number of states (19 states)” and who “also came second by plurality of votes,” that is Alhaji Abubakar Atiku.

Olanipekun said: “Borrowing the language of the Supreme Court in the celebrated case of Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669, the 2nd petitioner (Obi) is a meddlesome interloper, as he is presenting a case where he will derive no utilitarian value.”

The respondents urged the court to dismiss the petition on the grounds that not only did the petitioners fail to show that Obi won the election, they failed to prove their case with relevant evidence.

Their words:”The evidence presented by the petitioners themselves point to the fact that all the electioneering processes of accreditation, voting, sorting, counting, entry into the respective Form EC8As and manual transfer to the collation centres went smoothly.

“None of the witnesses called by the petitioners offered any scintilla of evidence to avail the court of the total number of votes that should be due to the petitioners, as a result of the non-electronic transmission of votes to the IREV, and the number of votes that have been unduly credited to the 2nd respondent, for the same reason.

“By the imperative of Section 135 (1) of the Electoral Act, the mere fact that results were not transmitted through the IREV cannot operate to ground an invalidation of an election. The hardcopy of the Form EC8A is the building block for any collation of results.

“By paragraph 93 of the Regulations, electronic copy is only relevant where the hardcopy of the form EC8A is not available at the collation centre, and that even in the absence of the electronic copy, recourse should be made to either the copy given to the party agent or police officers.”

They said that contrary to the petitioners’ claim that no glitches occurred during the transmission of results of the election to IREV, one of their expert witnesses (PW7) “admitted under cross examination by the respondents’ counsel that the Amazon Web Services (AWS) server has, in recent past, suffered numerous outages, including the ones of 28 February, 2017 and the over 27 others, as at 2021; admitting the possibility of other outages as, according to her, ‘anything is possible.’”

They further noted that “on the close of evidence, it has become glaring that none of the reliefs prayed for by the petitioners is grantable.”

Besides, the respondents said the petition should be dismissed on account of “clear manifestation and display of abandonment of the entire petition” by Obi and the LP in their final written address.

“Order 22 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2019, which is applicable to the proceedings mandates that “a written address shall…contain…© the issues arising from the evidence for determination,” they said.

“From this simple grammatical provision of the rules, it is clear that the petitioners have not formulated any issue for determination capable of being considered or countenanced by this honourable court; and the court can also not consider their address without issues for determination being presented by them.

“Arising from the foregoing, this honourable court is urged, as respondents have done in their final address, to dismiss the petition, not only for the reasons and submissions contained in that address, but also for the clear manifestation and display of abandonment of the entire petition.”

The 2nd and 3rd respondents faulted the authorities cited and relied on by the petitioners, noting that they “are in the habit of citing cases and decisions which are against their contention, and more importantly, election cases, where the petitioners in the respective decisions lost out, from the trial courts, up to the Supreme Court.

“These cases include Faleke v. INEC, Buhari v. Obasanjo, Wada v. Bello, Oyetola v. INEC, Abubakar v. INEC, Oke v. Mimiko (supra), and a host of others.

“Deducible from this is that the petitioners, like the petitioners in these cases, expect that their petition be dismissed by this honourable court.”

For example, the 2nd and 3rd respondents referred to the case of Awolowo v. Shagari cited by the petitioners, “a case which supports the contention of the respondents, but is against every grain of the petitioners’ postulations.

“If one is inclined to even reason with their (the petitioners’) application of that case at all, then, it behoves us to draw the court’s attention to, and indeed, submit that should the petitioners insist on their strange legal construct, it smacks of mischief and inconsistency for them to place emphasis on one-quarter of the votes in the FCT, without reckoning 2/3 of the total valid votes in the FCT.

“Invariably, therefore, going by the petitioners’ advocated disjunctive interpretation, the court, with all respect, will need to first determine what 2/3 of the votes cast in the FCT is, before then determining what one-quarter of the said two-thirds is.

“Empirically put, therefore, by the Form EC8D for Abuja, before this honourable court, the total valid votes recorded in the FCT is 460071 votes; two-thirds of 460071 is 306714; one-quarter of two-thirds will, therefore be 76678.5 votes.

“The petitioners have deliberately refused to suggest this legal proposition which, in any event, is the natural import of their submission, because the 2nd respondent, by Exhibit RA20, scored 90,902 votes in the FCT, thereby exceeding the 76678.5 votes, which is the 1/4 of 2/3 of the total valid votes cast in the FCT.

“This was the approach taken by the Supreme Court in Awolowo v. Shagari (1979) NSCC 87 at 125, where Atanda Fatai-Williams, JSC. (as he then was), in the process of determining two-thirds of the entire states of the federation, after identifying the settled 12 states, established two-thirds of the total votes cast in Kano State, before proceeding to determine 1/4 of the said two-thirds.

“Curiously enough, in their entire presentation, at no point did the petitioners assert that they are the winners of the election; rather, they are asking the court to ‘discountenance the 2nd and 3rd respondents’ defence.’

“The petitioners have been so busy and occupied, milling around the worn out and obsolete subject of the contrived disqualification of the respondents.

“This is a further demonstration of the fact that their petition, at the very best, is an expedition, a frolic of a sort.

“The court is not a Father Christmas. Even a Father Christmas, with all his assumed generosity, only gives to those who stretch their hands, and despite the fact that he (Father Christmas) is masked, he feels their presence.

Law is not, has never been and will never be an appeal to sentiments and emotions, as the petitioners think or assume that sentiment is a route to persuading the court to give judgement in their favour,” Tinubu and Shettima said in further praying the court to dismiss the petition.

“With respect, the entire address, like the petition itself, is a fiction,” they said.