Proceedings at the Presidential Election Petition Court (PEPC) are at an advanced stage since it began sitting on May 8. ERIC IKHILAE examines the progress that has been made after 36 days amid drama and fireworks.
The Presidential Election Petition Court (PEPC) formally threw its doors open on May 8 with its inaugural sitting, during which members of the court’s five Justices panel were unveiled.
Justice Haruna Tsammani, who is presiding, announced the other members as Justices Stephen Adah, Misiturat Bolaji-Yusuf, Boloukuromo Ugo and Abba Mohammed.
Number of petitions filed
Before May 8, five petitions were already lodged at the court’s Registry, awaiting its attention.
The first, marked: CA/PEPC/01/2023, was filed by the Action Alliance (AA), the second – (CA/PEPC/02/2023) – was filed by the Action Peoples Party (APP), while the third (CA/PEPC/03/2023) was jointly filed by the presidential candidate of the Labour Party (LP), Peter Obi and his party.
The Allied Peoples Movement (APM) filed the fourth one, marked: CA/PEPC/04/2023), while the candidate of the Peoples Democratic Party (PDP) in the election, Atiku Abubakar, and his party filed the fifth one, marked: CA/PEPC/05/2023.
On the first day
Justice Tsammani, in his inaugural address, gave a picture of the expected proceedings and how the court planned to approach its task. He reminded all that the court had 180 days to conclude its assignment, which time would end around September 16.
Justice Tsammani assured that the court would ensure justice and be fair to all. He cautioned lawyers against filing frivolous applications and urged them to shun other forms of dilatory tactics.
He added: “As we commence hearing of the petitions, let us avoid making sensational comments. Let us consider the safety and interest of the country as paramount.
“We should avoid unnecessary time-wasting applications and objections so that we can look at the substance of the case rather than unnecessary technicalities.
“Let us cooperate with each other so that everyone will be satisfied that justice has been done.”
Leaders of the various legal teams for the petitions pledged their cooperation with the court to ease the execution of its assignment and ensure that justice was served at the end of the day.
Chief Wole Olanipekun (SAN), who is leading the joint legal team of President Bola Tinubu and Vice President Kashim Shettma, assured the court of his team’s cooperation, noting that the case needed to be determined without undue recourse to unnecessary technicalities.
Lead lawyer to the All Progressives Congress (APC), Lateef Fagbemi (SAN), spoke similarly and assured that his team will work with the others to make the job of the court easier by avoiding what could constitute delay.
Leader of the joint-legal team of the Peoples Democratic Party and Atiku Abubakar, Chief Chris Uche (SAN) assured of his team’s commitment to assist the court to do justice.
Livy Uzoukwu (SAN), who is leading the legal team of the Labour Party and Peter Obi observed that the petitions were of great public interest, adding that “at the end of the day, I am very confident that the petitions will impact on Nigeria’s jurisprudence and constitutionalism. We will do everything possible to assist your Lordships.”
Lead lawyer to the Independent National Electoral Commission (INEC), Abubakar Mahmoud (SAN), said his team and client were confident of the ability of the court to do justice to all the petitions before it.
Subsequent proceedings
Between May 8 and today, proceedings before the court have progressed steadily on the five petitions, with which the court opened.
So far, documentary and oral evidence have been led by some of the petitioners, who have tendered tons of documents and called several witnesses.
Consolidation of petitions
On May 22, the court took arguments from lawyers to parties on how it should proceed with the three surviving petitions in the face of the provision of Paragraph 50 of the First Schedule to the Electoral Act 2022.
The Paragraph states: “Where two or more petitions are presented in relation to the same election or return, all the petitions shall be consolidated, considered and be dealt with as one petition unless the tribunal or court shall otherwise direct in order to do justice or an objection against one or more of the petitions has been upheld by the tribunal or court.”
In their contributions, lawyers to the petitioners – Eyitayo Jegede (SAN) for Atiku and the PDP; Awa Kalu (SAN) for Obi and the LP, and Shehu Abubakar for the APM – urged the court to consolidate the petitions to save time and eliminate undue delay.
Jegede argued that consolidating the applications would retain the characters of each petition, save time and cost and ensure expeditious hearing.
Lawyer to the Independent National Electoral Commission (INEC), Kemi Pinheiro (SAN) said his client was neither for nor against consolidation but would abide by the court’s position on the issue.
Pinheiro noted that the provision of Paragraph 50 was mandatory, but said his client was willing to work with the court’s decision.
Respondents’ lawyers – Akin Olujinmi (SAN) for the President-elect and Vice President-elect, Bola Tinubu and Kashim Shettma; Lateef Fagbemi and Charles Uwensuyi-Edosomwan (both Senior Advocates) for the All Progressives Congress (APC) and Roland Otaru (SAN) for Ibrahim Masari (the placeholder) opposed consolidation.
They argued that the proceedings would be cumbersome and confusing if the petitions were consolidated given their varying characters.
Olujinmi argued that not only are the characters of the petition not the same, the evidential issues and prayers in one petition vary from the other.
Uwensuyi-Edosomwan, who spoke for the APC in the petition by Atiku and the PDP, contended that consolidation would make the proceedings unwieldy and prevent his client from presenting its case in detail.
Otaru said: “Consolidation will cause embarrassment, chaos and confusion.”
Delivering its pre-hearing report on May 23, the court announced its intention to consolidate the petitions.
Justice Tsammani said: “In line with the requirement of Paragraph 50 of the First Schedule to the Electoral Act 2022 this court hereby determines that the justice of this petition demands that this petition No: CA/PEPC/03/2023 be consolidated with petitions No: CA/PEPC/04/2023 and CA/PEPC/05/2023”
He added that the petitions would “be dealt with as one petition since they all relate to one election and return.”
It was later learnt that by consolidation, the court did not merge the three petitions, it only elected to hear them side-by-side to curb delay.
The pre-hearing report also provided information on when the trial would commence (when parties will call witnesses); time to be allocated to parties for each witness to testify (give evidence-in-chief, be cross-examined and re-examined), number of days within which a party should conduct its case, number of witnesses to be called by each party, among others.
State of the cases
Action Alliance (AA)
The AA was the first to lodge a petition at the court’s Registry shortly after the conduct of the February 25 presidential election. This accounted for why its petition was numbered: CA/PEPC/01/2023.
After the inaugural remarks on May 8, lead lawyer to the AA and its presidential candidate, Solomon Okanigbuan, Oba Maduabuchi (SAN) rose to inform the court about his client’s intention to discontinue the case.
In their petition, the AA and Okanigbuan had sought the voiding of the election because its candidate’s name was omitted, a claim that was denied by all respondents to the petition.
Listed as respondents were INEC, the APC, Tinubu and Hamza Al-Mustapha (who was fielded as the presidential candidate of a faction of the AA).
Maduabuchi, who proceeded to move the motion he filed on May 3 for the withdrawal of the petition, was silent on the reason why his clients had a sudden change of mind.
Respondents’ lawyers – Mahmoud for INEC; Fagbemi for the APC; Olanipekun for Tinubu; and Mohammed Sani for Al-Mustapha, did not object to the withdrawal, following which Justice Tsammani, in a bench ruling, dismissed the petition on May 8.
Action Peoples Party (APP)
In its petition filed on March 19, the APP had claimed, among others, that Tinubu “corruptly induced” electoral officers at local government and state collation centres in “Kano, Kaduna, Imo, Rivers, Kebbi, Oyo, Ogun, Ekiti, Osun, Kogi and Kwara states” to alter the presidential election results in his favour.
It alleged that fictitious figures were ascribed to Tinubu, thereby giving him substantial lead and advantage in the various states.”
On May 10, when the petition was mentioned, the petitioner’s lawyer, Obed Agu, informed the court that he, on the previous day, filed a notice of withdrawal of the petition.
“We are seeking an order of this court for leave to withdraw this petition filed on March 19, as well as an order striking out or dismissing the petition, same having been withdrawn,” the Agu said, to the consternation of the court’s audience, who were unsure of what informed the lawyer’s decision.
Agu also did not help matters as he kept sealed lips on why his clients changed its mind.
Ruling, Justice Tsammani said: “Having listened to all the parties, we are satisfied that there is no collusion. The petition having been withdrawn, it is hereby dismissed.”
APM
No significant progress has been made in the petition by the Allied Peoples Movement (APM) because of a recent judgment of the Supreme Court, which is believed to have resolved the main issue in the petition.
The APM is seeking the voiding of Tinubu’s election on the ground that Shettma had a double nomination, which the party claimed affected the legality of the Tinubu/Shettma joint ticket.
On May 30, Olanipekun informed the court about a judgment delivered on May 26 by the Supreme Court in which the apex dismissed an appeal by the PDP, challenging the APC’s nomination of Shettma, which the PDP had termed double nomination.
Olanipekun noted that the Supreme Court judgment affected the petition by the APM, which deals solely with the same issue of Shettma’s alleged double nomination.
Olanipekun promised to obtain a CTC of the judgment and make it available to the court within two days. He also pledged to meet with the lawyer of the petitioner to know whether, given the judgment, the APM would continue with its case.
Lawyer to the APM, Shehu Abubakar, who said he was yet to access the judgment, added that he needed time to do so, study same to ascertain its effect on his client’s case and decide what further steps to take.
The court then, adjourned till a later date to enable parties study the judgment and report back on its effect on the petition by the APM.
Till date, parties are yet to access the judgment. At the mention of the petition on June 9, a new petitioner’s lawyer, Yakubu Maikasua (SAN) expressed frustration over his inability to obtain copies of the judgment from the Supreme Court.
He prayed the court to set down his client’s petition for hearing.
Mahmoud for INEC, Fagbemi for APC, Olujinmi for Tinubu and Shettma, and Yomi Aliyu (SAN) for Kabir Masari (the APC placeholder) did not oppose the request by Maikasua.
Fagbemi, Olujinmi and Aliyu said they also made efforts to access the judgment but were told that one of the five Justices, who delivered it, was yet to sign.
They expressed hope that the judgment would be available before the next date.
The court adjourned the petition till June 19.
Obi and Labour Party
As directed in the court’s pre-hearing report, issued on May 23, the petitioners were all required to open their cases.
So far, Obi and his party have called three witnesses, but have continued to tender documents, mostly certified true copies (CTCs) of election results from states.
On May 30, Obi and LP called their first witness – Lawrence Nwakaeti, a lawyer, who adopted his written statement, where he claimed Tinubu was not qualified to contest the election given his alleged involvement in a forfeiture proceeding in a United States court.
They called their second witness – Anthony Chinwo (a Software Engineer and Architect) on June 8, who spoke about how he among others, deployed technology to monitor the election results.
Obi and the LP featured their third witness on June 10. The subpoenaed witness – Lucky Obewho-Isawode (a journalist from Channels Television) – was to tender video recordings of news items aired on his station concerning INEC’s preparation for the last election.
The two video recordings, stored in two flash drives, were played on June 10 after the petitioners’ lawyer, Jibrin Okutepa (SAN) made an application to that effect.
The first, which was footage of a press briefing by INEC Chairman, Prof Mahmood Yakubu, showed him talking about plans for the election and assuring that BVAS would be used for voter accreditation, while results would be transmitted from polling units in real-time.
The second one showed INEC’s National Commissioner, Festus Okoye explaining the efforts made to address the glitches experiences during the presidential and National Assembly elections.
Part of the second video also showed President Bola Tinubu announcing his selection of Kashim Shettma as his running mate for the election, which Okutepa claimed supported their case of double nomination.
After the videos were played, the petitioners proceeded to tender some CTCs)of INEC materials, including Forms EC40G(PU), EC40G and EC40G1 from Benue State.
Further hearing in the petition resumes at 9am on Tuesday.
Atiku and PDP
So far, Atiku and the PDP have called 18 witnesses and tendered election materials, including result sheets in different formats from states across the country. They promised to tender more.
Out of the 18 witnesses, five were subpoenaed ad-hoc staff engaged by INEC as Presiding Officers at the polling unit level in some states. Others were PDP’s state Collation Agents.
At the June 10 hearing, the PDP and Atiku called two of the INEC ad-hoc staff – Alheri Ayuba and Sadiya Mohammed Haruna, who adopted their written statement and were cross-examined by lawyers to the respondents.
Uche, who led the petitioners’ legal team, said his clients have more witnesses to call when proceedings resume on June 13 at 2 pm
Losses suffered by parties
Parties to the surviving petitions have suffered some losses in the course of proceedings since the court commenced sitting on May 8.
On May 23, the Tinubu, Shettma and the APC lost in their opposition to the consolidation of the three surviving petitions.
They had argued among others, that consolidation will make the proceedings cumbersome and confusing, a position the opposing parties rejected.
In a ruling on May 23, the court agreed to consolidate the petitions and held that consolidation will save time.
In two rulings on May 22, the court dismissed the two applications by Atiku and the PDP (on the one hand), and Obi and the LP (on the other) for live televising/streaming of the proceedings.
Justice Tsammani, in the lead ruling in the application by Atiku and the PDP, held that live transmission of court proceedings is not provided for under any law.
He held that the requirement that the court sits in public did not mean that it should sit in a stadium or a marketplace, adding that the court has made sufficient arrangements as required.
Justice Tsammani added that there was no way televising the proceedings could advance the interest of fair hearing for parties, nor advance the interest of the petitioners concerning issues raised in their petitions.
He said granting the request by Atiku and the PDP has the power of trivialising the business of the court.
Justice Tsammani held that to allow the televising of the proceedings of the court, was a policy decision that was outside the powers of the court but could only be taken by either the court’s President or the National Judicial Council (NJC) as was done during the COVID-19 era when policy directions were drawn up for virtual court sittings.
Other members of the five-member panel agreed with the lead ruling, with a member, Justice Misiturat Bolaji-Yusuf noting that “the avoidance of the trial by ordeal of camera will better serve the interest of justice in this case. Allowing live broadcast is a distraction.”
Another member, Justice Boloukuromo Ugo warned that the sensitive and delicate nature of election petition cases in the country should not be equated with the trials of O. J. Simpson (in the US) and Oscar Pistorius (in South Africa).
Justice Ugo said it was because of the nature of the case that the lawmakers provide for the shielding of the identity of witnesses in election cases.
The LP and Obi suffered another loss on June 10 when the court rejected the two applications they filed to obtain more information from INEC by issuing on it some interrogatories.
The first was for an order for leave to issue and deliver interrogatories on INEC, while the second was for an extension of the order to bring the earlier application outside the pre-hearing session.
In a ruling, the court’s five-member panel was unanimous, holding that the applications were without merit, having been filed outside the time allowed by law, a development that equally denied the court the jurisdiction to hear them.
Justice Tsammani noted that the petitioners’ lawyers were not diligent in their conduct, which informed why they did not file the applications within the time allowed.
The Presiding Justice held that the petitioners did not establish any circumstance of extreme urgency that would have made the court exercise discretion in their favour.
The judge said the situation the petitioners found themselves in was self-induced and could not pass as special circumstances on which the court could act in their favour.
He noted that by the provision of Paragraph 17(1) of the First Schedule to the Electoral Act 2022, the petitioners were required to file all applications within 10 days of filing their reply to the respondents’ responses to their petition.
The judge observed that, while the petitioners filed their last reply on April 21, they filed the application, in which they sought to serve INEC interrogatories, on May 22 the day the court ended the pre-hearing session.
He added that even though the application was filed on May 22, the petitioners’ lawyer failed to draw the court’s attention to it, as they ought to have done.
“I do not believe that the application was filed before the proceedings of that day. Even if it was filed before the proceedings of that day, the lawyer did not bring that fact to the attention of the court,” the judge said.
He held that it was wrong for the petitioners’ lawyer to attempt to avoid taking responsibility for failing to act within the time allowed by the law.
“The application is incompetent having not been filed within the time allowed by law and the court has no jurisdiction to hear it. This application is hereby struck out,” he said.
Parties’ attendance of court sittings
Besides journalists from major media houses, who hardly can afford to risk being absent at any of the court’s proceedings, Obi has religiously attended the court’s sittings.
Obi, who often sits at the gallery like other members of the audience in court, hardly misses a day and at every occasion, he does not miss the opportunity to announce his presence in court.
Atiku has so far attended once, which was on May 11. The Director-General of Asiwaju Bola Ahmed Tinubu Presidential Campaign Organisation and then Governor of Plateau State, Simon Lalong attended once on May 8 when he announced his appearance as representing Tinubu.
Justices constantly appeal for cooperation
Beginning from May 8 when the court had its first sitting, members of its panel have taken it as a duty to always remind lawyers to parties about the need to remain committed to their pledge to cooperate with the court to ensure seamless proceedings.
At the beginning of every sitting, the court has made it a tradition to designate a member of the panel to speak and remind lawyers to parties about the need to sustain the existing spirit of cooperation.
Light exchanges
Being adversarial proceedings, many would expect constant hot exchanges between lawyers to parties in their efforts to make their point.
But, that has not always been the case since the court started sitting. Yes, there have been few cases of hot exchanges, but the proceedings have so far been characterised by friendly exchanges, occasionally, laced with jokes, but often delivered with a sense of mutual respect.
One such instance was on June 9 when, before he commenced cross-examining Grace Ajagbonna, a female witness called by Atiku and the PDP, Yusuf Ali (SAN) inquired if she was comfortable with the temperature in the courtroom, to which the witness responded that she was not because she was feeling very cold.
Yusuf then suggested to her to eat hot amala after the court session, a suggestion that elicited laughter from those in court, with Uche (lawyer to Atiku and the PDP) wondering how Yusuf knew what his witness wanted.
Another instance was when lawyer to INEC, Pinheiro, who had earlier complained that a witness, Alheri Ayuba was covering her face, suddenly expressed interest in her look when she removed the cloth with which she had covered part of her face.
Pinheiro, who was cross-examining the witness, asked her if she had participated in a beauty contest before now. But, while many were still wondering what relevance the question had with the case, another lawyer asked Pinheiro whether he was planning to take the lady out, to which everyone laughed.
Before Pinheiro could explain what his intention was, Justice Tsammani intervened and cautioned him to be careful, noting that the lady may have already been taken.
In yet, another instance, Olanipekun had barely introduced Dele Adesina (SAN) as the person to take over the conduct of his client’s case when Justice Ugo observed that Olanipekun did not properly introduce Adesina, to which Olanipekun explained that it was because Adesina had not paid a dowry.
Adesina, who had by then, risen to his feet, said he was only able to pay in naira, but not in dollars; prompting another member of the panel, Justice Stephen Adah to observe that payment in naira ought to be enough, because dollar is not a legal tender in the country.
While many were still laughing, Justice Tsammani intervened and noted that the information about whether or not Adesina has fully paid a dowry to Olanipekun was only known to them and “my brother Justice to my extreme right” (Ugo).
