Introduction
There are previous supreme court precedents that dictate that “The form of commencement of an action is not, by itself, enough to vitiate it if the ends of justice would be compromised on account of such a blind technical application of the rules.” As opined by Peter Odili, JSC, in Nagogo vs. C.P.C. (2013) 2 NWLR PT. 1339 PG 448 at 472C,
Also in Atago v. Nwuche (2013), NWLR PT. 1341 PG. 337, where the Apex court held that “the form of commencement of an action does not necessarily make it incompetent. It does not matter whether the action was begun by Writ of Summons or by Originating Summons. What is important is the question of justice of the case.” The majority judgments overlooked the fact that Originating Summons were explicitly designated by the Rule 4(1) of the Federal High Court (Pre-Election) Practice Directions, 2022, as the appropriate procedural vehicle for initiating pre-election matters. Consequently, the judgment was rendered per incuriam and, as such, could not have been nullified based on the principles established by the Supreme Court in GT Bank V Innoson Motors NIG. LTD (2022) 6 NWLR PT. 1825 PG 35 at 60B and a plethora of subsequent decisions. Furthermore, penalizing the Applicant for their Counsel’s compliance with extant rules, or even if there were errors is unjust, as a court should not visit the sins of counsel upon a litigant.
One of the issues formulated by Hon. Justice Adamu Jauro, JSC, in his dissenting judgment, which read “Whether, in the circumstances, the lower court was right when it held that the only valid primary election for Yobe North Senatorial District conducted by the National Working Committee of the Appellant was the one held on 28th May, 2022 that produced the 1st Respondent as the candidate for Yobe North Senatorial District?” (APC v. Machina (2022) SC/CV/1689/2022) was not treated in the majority judgment even though it directly relates to the substance of the suit. Another rationale for the dissenting judgment lies in its determination that the Appellant’s contention that the Applicant’s suit was “rooted in allegations of fraud” and thus inappropriately initiated via Originating Summons was raised for the first time at the Apex court without prior leave. His Lordship asserted that such a novel argument necessitates prior leave, as established in ODOM v. PDP (2015) LPELR 24351 (SC) and OWIE v. IGHIWI (2005) LPELR 2846 (SC).
Nevertheless, Hon. Justice Jauro proceeded to consider the issue, albeit with a caveat, concluding that neither the affidavit evidence of the parties employed the terms “fraud” or “fraudulently,” nor did they provide specific details of any fraudulent activity. His Lordship then posed a rhetorical question: “On what basis does the Appellant expect this court to conclude that the 1st Respondent’s suit raised allegations of fraud? … Counsel seems to suggest that every allegation of wrongdoing constitutes an allegation of fraud or imputation of crime. Were the Appellant’s position to be tenable, nearly every case would necessitate proof beyond a reasonable doubt.”
A significant segment of the populace expressed outrage and dissatisfaction with the judgment, perceiving that the esteemed Justices prioritized technicalities over substantive justice. The majority opinion in this contentious 3-2 decision has been subject to widespread criticism as a regrettable outcome. A prevailing view among Nigerians is that the then Senate President, Lawan, did not participate in the APC Senatorial primary for the Yobe North Senatorial District, held on May 28, 2022. It is alleged that he had withdrawn voluntarily to contest the Presidential Primary on June 8, 2022, in apparent violation of Section 82(5) of the Electoral Act, 2022. Popular opinion asserts that Machina emerged as the undisputed winner of the primary, while Lawan’s bid for the presidential ticket was unsuccessful. Notably, INEC did not endorse Lawan’s claim. Both the Federal High Court and the Court of Appeal upheld Machina’s victory. However, the Supreme Court, in a judgment led by Justice Nweze, overturned the decisions of the lower courts inspite of their concurrence. Many observers questioned the rationale behind penalizing a party for adhering to legal guidelines. The decision was perceived as overly technical, prioritizing procedural correctness over substantive justice and the merits of the case.” In any event, to overturn concurrent judgements of the two lower courts, the Supreme Court had itself held that it must be shown that “the judgement was perverse or have violated some law and caused injustice” (Okadigbo & Ors v. Anyaegbunam & Ors (2023) LPELR – 61773 (SC)). No such circumstance occurred in the APC V. Machina matter.
The 25% of Fct, Abuja as a legal conundrum
The 2023 Presidential elections witnessed massive turnout as Nigerians were interested in voluntarily electing leaders of their choice. The polls were however bedevilled by large-scale irregularities, bare-faced manipulations and brazen non-compliance with extant laws governing the electoral process in Nigeria. One of the substantial issues raised at that time was whether or not, Asiwaju Bola Ahmed Tinubu, the current Presidential of the Federation met the constitutional requirement of polling at least not less than one quarter (1/4) of votes cast in the elections in at least two third (2/3) majority of all the States of the Federation and the Federal Capital Territory (FCT); and whether he should have been declared the winner of the Presidential elections as done by the INEC. This legal conundrum has suffered several commentaries from Jurists, Scholars, political analysts; and even the not so informed. amidst this legal uncertainty, Asiwaju Bola Ahmed Tinubu, the APC candidate, was nonetheless declared winner and even presented with the Certificate of Return as President-elect of the Federal Republic of Nigeria. The collation, declaration and issuance of certificate of return, all run counter to the provisions of sections 25, 47(2), 60(1), (2), (4) and (5); 62; 64(4)(a) & (b); 70; and 148 of the Electoral Act; paragraph 38 of the INEC Guidelines and Regulations; paragraphs 2.8.4; 2.9.0; and 2.9.1; of the INEC Manual For Election Officials, 2023; and judicial authorities.
Results from the manually transmitted results as collated and declared by INEC on the 1st day of March, 2023, showed that Tinubu, the then candidate of the APC, on the face of it, was said to have secured the highest number of votes cast at the presidential election. He is said to have garnered a total of 8,794,726. However, in the Federal Capital Territory, Abuja, where we have total valid votes of 478,923, Tinubu, the candidate of the APC, was said to have secured only 90,902 (19.76%) of the votes cast at the FCT; with Waziri Atiku Abubakar alleged to have 74,194 (16.13%); and Peter Obi said to have 281,717 (61.23%).
For purposes of clarity and better appreciation of issues, section 134(2) of the 1999 Constitution provides as follows:
“A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being more than two candidates for the election-
(a) He has the highest number of votes cast at the election; and
(b) He has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.” (Constitution Of the Federal Republic of Nigeria, 1999 section 134(2) ).
A skeletal digest of the section reveals that the law provides for two limbs of requirements that are conjunctive and not disjunctive; that is, (a) the candidate must have the majority of votes cast at the election; and (b) he must have not less than one-quarter of the votes cast at the election in each of at least two-thirds of all States of the Federation AND the Federal Capital Territory, Abuja.
Furthermore, there are two instances contemplated in the provision dealing with where there are only 2 candidates; and where there are more than 2 candidates. In both situations, any of the candidates must satisfy both conditions of 25% in 24 States; and 25% in the FCT, Abuja. One without the other cannot work. Please, note that sub section (3) provides that where the candidates still fail to satisfy the requirements, there shall be a second election in accordance with sub section (4); and the candidates shall be the highest vote scorer, followed by the next highest vote scorer; and this elections shall be held within 7 days of the results of the forgoing elections subject to fulfilment of the above usual conditions. Accordingly, by sub section (5), where a candidate is not still elected, then within another 7 days, the National Electoral Commission (INEC) shall conduct another election; and this time, if a candidate simply has a majority of the votes cast, he shall be declared winner. In other words, this time around, the second limb of satisfying the 2/3 of States of the Federation and FCT, no longer arises.
The gravamen of this discourse was the mathematical exactitude of the requirement of 25%. The wordings of the Constitution are quite clear and unambiguous. They demand for not less than one-quarter of the votes cast at the elections in each of at least 2/3 of all the States; AND the Federal Capital Territory. By a judicial mathematical analysis, 2/3 of 36 States is equal to 24 States, and in addition, the FCT, Abuja. What the law states is that the candidate must have 25% of votes in those States; and the FCT, Abuja. The law does not contemplate that the candidate must win those States. The jurisprudence behind this provision is to ensure that the President as the number one citizen of the Nation, enjoys a reasonable range of widespread acceptance by majority of the people he seeks to govern, including those inhabiting the seat of power where he would govern from. To know whether a candidate must win 25% of 24 States aside the FCT, Abuja, to be declared as winner, we must consider the provisions of section 134 against the background of a community reading of sections 2(2), 3(1) & (4), 48, 297, 298, 299, 301, and 302 of the 1999 Constitution. The above provisions clearly identified the FCT, Abuja, and its lands as distinct and different from states. FCT, Abuja, was a special status as “the Capital of the Federation and the seat of the Government of the Federation” (Constitution Of the Federal Republic of Nigeria, 1999 section 134(2)). No other state was accorded this special status. , the FCT, Abuja, like any state in the Federation, has its own courts, distinct Chief Judge, a Senator; executive powers exercised by the President for it, similar to Governors of states, legislative powers vested on the NASS, instead of states with Houses of Assembly; with a Minister as its administrative Head rather than a Governor. It is distinct from states. (To be continued).
Thought for the week
“A corrupt judiciary is hardly likely to hold a corrupt executive to account”.
(Prashant Bhushan)