LANRE ADEWOLE and SUNDAY EJIKE look into precedents to preview the coming judicial war on disputed poll.
With disgruntled candidates in the February 25, 2023 Presidential election already before the Court of Appel to contest the win of the President-elect, Bola Tinubu, legal fireworks have officially begun over the much-disputed poll.
The presidential and legislative election, which had been panned globally for falling short of the required integrity, is now being contested on multiple fronts, but with most of the attention being on the outcome of the presidential election.
Two major candidates in the election, Atiku Abubakar of the Peoples Democratic Party (PDP) and Peter Obi of Labour Party, are separately asking the Court of Appeal, to reverse the decision of the Independent National Electoral Commission (INEC) awarding the disputed election to the candidate of the ruling All Progressives Congress (APC).
Understandably however, supporters of the three big political parties in the race, APC, PDP and LP, are already looking beyond the likely outcomes of the trial of the petitions at the Court of Appeal, serving as the Election Petition Tribunal for the presidential poll and having their eyes on the court with the final say on who is the lawful President-elect; the Supreme Court of Nigeria, which is also the highest court in the land.
Historically, no Court of Appeal Tribunal on presidential election, has ever overturned the win of INEC-pronounced victor and the Supreme Court has also never disputed the positions of the intermediate court.
The closest the apex court had come, was sealing the victory of now-late President Umaru Yar’Adua in the 2007 presidential contest against incumbent President Muhammadu Buhari and then-candidate of the All Nigeria Peoples Party, with a narrow majority of 4-3.
In the historic split among the seven-man panel of the Supreme Court that handled ANPP’s appeal against the judgement of the Court of Appeal putting a judicial seal on Yar’Adua’s election, the three who nullified Yar’Adua’s election and awarded victory to Buhari, held that ANPP and its candidate, proved beyond reasonable doubt that the election was deeply flawed and should not stand.
The three dissenting Justices, now retired, were Maryam Aloma Mukhtar, George Oguntade and Walter Onnoghen, with both Mukhtar and Onnoghen, ending their careers as Chief Justice of the court.
Oguntade, who read the lead minority judgement held that the failure of INEC to handle the ballot papers as required, proved the election was tampered with.
He said, “The ballot paper is the live wire, the heartbeat and the engine room of any election. Without ballot papers being serialised and bound in booklets, as required by Section 45(2), it becomes possible to print fake ballot papers which can then be introduced into the ballot boxes fraudulently.”
Like the just-concluded poll, international observers had heavily knocked the 2007 poll.
Election observers from the European Union described it as “the worst they had ever seen anywhere in the world”, with “rampant vote rigging, violence, theft of ballot boxes and intimidation.”
Yar’Adua was credited with 24.6 million votes, in the election.
Just like it also recently did, the United States also dismissed the 2007 poll, voicing deep concern at the violence surrounding the election, which claimed at least 200 lives, amid voting irregularities.
Its then-national security spokesman, Gordon Johndroe had famously declared that “we are deeply troubled by what we saw”.
16 years after that damning verdict from around the globe, another stinging rebuke was delivered by the international community to INEC on the conduct of the disputed poll.
Will apex court make history?
Precedents have shown that the membership of the presidential election appeal panel of the Supreme Court is always according to seniority, except on rare occasions when a senior, would have to give way for a junior. The practice is so obvious that names of the seven most senior justices of the court are already being circulated in public domain and on social media, with supporters of different political parties, seeking for prayer that God will take control of their hearts, to “do the right thing”.
The selection process is also not expected to be different this time, though the Chief Justice of Nigeria, Mr. Kayode Ariwoola is yet to name a panel. By convention, he is expected to head the panel, with six others according to seniority, joining him.
The other six, expected to sit with him, are Justices Musa Dattijo Muhammed, the most senior and deputy chairman of the National Judicial Council (NJC), Olatokunbo Kekere-Ekun, the incoming CJN when Ariwoola leaves next year, if the succession-by-seniority arrangement is retained, John Inyang Okoro, expected to lead the court when Kekere-Ekun is done in 2028, Chima Centus Nweze and Amina Adamu-Augie, originally born as Anne Eva Graham.
With Adamu-Augie retiring on September 3, of this year, her immediate junior on the Bench and another female, Uwani Musa Abba Aji, might be asked to step in, as a replacement, considering that the disputes might be drawn out.
The number eight on the seniority list, Justice M.L Garba, is an experienced election petition jurist, who led the Court of Appeal panel that handed the incumbent president, Buhari a controversial win against Atiku Abubakar in the dispute arising from the 2019 poll. Because of the assignment, Buhari refused to approve the promotion of other justices of the Court of Appeal, for 10 months, for Garba to remain their senior. Eventually, Garba was lifted and others like Helen Ogunwumiju, nominated before him, became his junior.
Garba may likely come into the panel if the approaching retirement of Dattijo is also put into consideration. The most senior Justice, is retiring on 27 October, 2023.
The participation of the CJN, is also in doubt with the camp of Atiku of PDP likely to kick against his involvement on the ground of “manifest bias”.
Ariwoola ran into a storm last year when he made a statement, suggesting he was supporting a breakaway faction of PDP, which eventually pitched its tent with Tinubu, the INEC-declared winner of the poll being contested.
Sacking incumbents.
Practically all the potential nominees to the panel of the apex court, have history of sitting on panels that sacked incumbents, especially governors, when the Court of Appeal, was the final court on governorship poll.
Recent history also shows that the CJN was a member of the seven-man panel, led by his predecessor-in-office, Tanko Muhammad, that delivered the controversial judgement of the court, sacking Emeka Ihedioha of the PDP as Imo State governor and replacing him with Hope Uzodinma of the All Progressives Congress (APC) on January 14, 2020.
Also involved in the judgement was Kekere-Ekun who read the lead judgement.
“Vote due to the appellant Senator Hope Uzodinma and the APC from 388 Polling Units were wrongly excluded from scores ascribed to them,” six members of the panel, had ruled.
When the Court of Appeal still held sway on governorship disputes, Dattijo chaired the 2010 messy Sokoto Governorship Election Appeal panel, that ended up fragmenting the Nigerian judiciary and culminating in the premature exit of a former President of the Court of Appeal, Ayo Salami.
Okoro, will be remembered as the justice of the apex court, who openly accused ranking members of the All Progressives Congress of offering him bribe, to pervert the course of justice in some states’ election petitions’ appeals. Security agents who raided his home, accused him of corruption and stashing away foreign currencies at home. The foreign currencies recovered from him, were however, returned to him, years after.
He led the panel that faulted the Buhari administration on Naira redesign policy.
Nweze is possibly still reeling from the criticism that trailed the judgement of a panel of the apex court he led, clearing the senate president, Ahmad Lawan to run for re-election without participating in the primaries. Lawan eventually retained the seat, but the Nweze’s panel was widely panned.
It is also on record that Nweze was a member of the Court of Appeal panel that removed Olagunsoye Oyinlola as the governor of Osun State and enthroned now-ex governor and current Interior minister, Rauf Aregbesola. The panel cancelled results of 10 local governments where Aregbesola of now-defunct Action Congress, according to the panel, was able to prove over-voting, ballot-stuffing, failure to announce result at polling centres and intimidation of voters by thugs, linked to Oyinlola’s PDP.
Another member of that panel, now in Supreme Court and likely to participate in the presidential dispute appeals, is M.L Garba.
Justice Adamu Jauro, a justice of the apex court, was also on the Oyinlola/Aregbesola appeal panel, but he is still a junior and a long shot for the 2023 presidential election trial.
In removing Segun Oni as the governor of Ekiti State on 15 October, 2010, paving the way for the enthronement of Kayode Fayemi as the governor, Abba-Aji, as a member of the Court of Appeal panel, joined others in cancelling votes in areas where Oni had scored more votes, citing proven irregularities.
Similar scenario played out in handing over Edo State to then-Action Congress and its candidate in the 2007 poll; Adams Oshiomhole.
The Court of Appeal, in a panel headed by now-retired PCA, Umaru Abdullahi sacked PDP’s Professor Oserheimen Osunbor as governor and directed INEC to issue Oshiomhole Certificate of Return as the lawful governor-elect.
The Appeal Court panel said it arrived at the decision after careful scrutiny of the lawful votes and invalid votes cast in 12 contentious local government areas and concluded that Oshiomhole won the highest number of votes and had the constitutional spread, demanded by law, after the cancellation of votes, considered unlawful.
The only serving member of that panel is Amina Augie.
The question now is if the justices are ready for history.
Tribune