2023 Presidential Election: Atiku Tells PEPC why they should Declare him Winner

• Obi, LP restate call for nullification of Tinubu’s election
• Insist Tinubu, Shettima not qualified; allege non-compliance by INEC

The presidential candidate of the Peoples Democratic Party (PDP) in the February 25 election, Alhaji Atiku Abubakar, has told the Presidential Election Petitions Court (PEPC) to declare him winner based on the submission of the Independent National Electoral Commission’s (INEC) that he won 21 states during the polls.

Atiku, in his final written address through his lawyers, claimed that the commission did not dispute, retract, debunk or claim an error in pronouncing him winner in the 21 states.

He similarly asked the court to nullify the declaration of President Bola Tinubu as winner of the election because he failed to secure up to a quarter of the votes cast in the Federal Capital Territory, Abuja.

The presidential candidate of Labour Party, Mr. Peter Obi, canvassed a similar position.

He argued that Section 134(2) of the Constitution is clear on the issue of winning at least 25 per cent of the votes in the FCT and 24 states as a condition for emerging as Nigeria’s president.

Atiku listed the states INEC credited him as winning as Adamawa, Akwa Ibom, Bauchi, Bayelsa, Borno, Delta, Ekiti, Gombe, Jigawa, Kaduna, Katsina, Kebbi, Kogi, Kwara, Nasarawa, Niger, Osun, Sokoto, Taraba, Yobe and Zamfara.

His lawyers said: “Indeed, as admitted by the 1st Respondent (INEC), the 1st Petitioner (Atiku) won in these 21 states. It is important to note that throughout the trial, the 1st Respondent (INEC) neither refuted nor countermanded this critical averment nor denied it.

“We urge your Lordship to hold that this constitutes an admission that requires no further proof. It also constitutes an admission against interest.’

Atiku accused INEC of manipulating “the technologies earlier put in place to ensure transparency, and wrongfully returned the said 2nd Respondent (Tinubu) as winner at about 4.00 am on is March 2023, at a time the 1st Respondent admitted that substantial percentage of the results had not been transmitted to the collation system for verification as required by law.”

He added: “Under the cover of the so-called ‘technical glitch’ excuse which the Respondent (INEC) never explained, the results were deliberately manipulated through suppression and discounting of the votes of the 1st Petitioner (Atiku) and inflation of the votes of the 2nd Respondent (Tinubu).

“We therefore submit that under the new regime of technology-based elections, the old, traditional and analogue manner of proof of substantial non-compliance must yield way to a modern, dynamic and scientific approach by the Courts towards proof of substantial non-compliance.

“The intent of the new Electoral Act 2022 is that the old order must give way to the new order; the analogue must yield to the digital, and we urge this Honourable Court to resolve this Issue in favour of the petitioners.”

Atiku and the PDP said INEC was wrong in declaring Tinubu winner having allegedly not secured one-quarter of the valid votes cast in the FCT as required by the Constitution.

They argued that the FCT was a distinct creation that cannot be equated to any of the states of the federation.

They added: “From the above, it is clear that the provisions of section 299 will not apply to section 134 (2) (a) of the Constitution, which deals with procedure for election of President with margin note ‘Election: two or more Presidential candidates.’

“The said section 134 (2)(a) of the Constitution has nothing to do with the matters mentioned in Section 299 of the Constitution, namely legislative powers, executive powers and judicial powers.

“We therefore submit that the said Federal Capital Territory Abuja cannot be construed as the 37th state in the computation of presidential election results and in the construction of section 134(2) (a) aforesaid.

“A digest of the section reveals that there are two limbs in Section 134(2) which 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 scenarios 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 percent in at least 24 states of the 36 states of the Federation; and 25 percent in the FCT.

“It is not in dispute that the 2nd respondent (Tinubu Bola Ahmed) did not achieve the constitutional requirement to be returned as winner of the election.

“We rely on the Exhibit PB (Form EC8D -Declaration of Result) and Exhibits PC 1-37 (EC8D1) – the summary of Results of the election.”

They argued that Tinubu’s sole witness, Senator Opeyemi Bamidele, “admitted clearly under cross-examination that the 2nd respondent (Tinubu) did not score 25 per cent in the FCT.

“We therefore submit the 1st respondent failed to comply with the provisions of section 134 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) in wrongfully, unlawfully and unconstitutionally returning the 2nd respondent as winner of the election.

“We therefore urge Your Lordships to resolve this Issue in favour of the Petitioners and hold that the 2” Respondent was wrongly returned as elected when he scored less than one-quarter of the votes cast at the election in the Federal Capital Territory, Abuja as required by the Constitution.”

Atiku and the PDP argued that Tinubu ought to be disqualified from contesting the election “having regard to order of forfeiture arising from drug-related offence, his acquisition of citizenship of a country other than Nigeria, and presenting a forged certificate to the 1st respondent (INEC).

They added: “In conclusion, we humbly and respectfully urge the honourable court to resolve all the issues formulated for determination in favour of the petitioners and thereupon grant the reliefs and/or alternative reliefs of the petitioners contained in paragraph 150 of the petition, for the reasons, inter alia:

*The petitioners have proved that the return of the 2nd respondent in the election to the office of the President of the Federal Republic of Nigeria held on 25th day of February 2023 was invalidated by reason of substantial non-compliance with the mandatory provisions of the Electoral Act, 2022 on electronic transmission of results for collation and verification by deliberate bypass of and failure to transmit the election resus electronically,

*The petitioners have established that the return of the 2nd respondent  as the winner of the Presidential election held on 25″ day of February 2023, was unlawful and unconstitutional, having not secured one quarter of the valid votes cast in the FCT, Abuja as required by the Constitution of the Federal of Nigeria, 1999.

*The petitioners have established that the 2nd respondent was clearly disqualified under the provisions of the Constitution to contest the Presidential election, having regard to order of forfeiture on him arising from drug-related offence, his acquisition of citizenship of another country, and presenting a forged certificate to the 1st respondent.

*The petitioners have proved that 2nd respondent was not duly elected by majority of the lawful votes cast in the election.

*The respondents proffered very scanty evidence in defence, and virtually abandoned their pleadings by not calling necessary witnesses, not having any credible defence to the petition.

Obi: FCT is not a state

In his own final written address, Obi through his lawyers said: “It is submitted that a purposive reading of Section 134(2), Section 299 and the remainder provisions give us the conclusion that obtaining 25 per cent votes in the FCT is an additional stand-alone requirement for election into the office of the president or the FCT is only a state, together with Nigeria’s 36 states, where the winning candidate must have obtained at least 25 percent in two-thirds of all states (37 states).

“A literal reading of Section 134(2) of the Constitution gives the interpretation that a winning candidate must have 25 per cent of total votes cast in two thirds of the states in the federation and the FCT, meaning that a winning candidate must obtain 25 per cent in 24 states and in the FCT.

“This is more so, as Section 3 and Part II of the second schedule lists the states of the federation, and the FCT is not included as a state.

“Going further, the Constitution in Section 299 has an interesting provision. It provides that ‘the provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the states of the federation…’

“However, the provision reads further that ‘and accordingly all the legislative powers, the executive powers and the judicial power vested in the House of Assembly, the Governor of a state and in the courts of a state shall respectively, vest in the National Assembly, the President of the federation and in the courts, which by virtue of the foregoing provisions, are courts established for the Federal Capital Territory, Abuja.’

“A holistic reading of Section 299 seems to suggest that the FCT, will be considered a state for the purpose of enjoying the executive, legislative and judicial powers vested in a state.

“Hence, the FCT is executively administered by the President, the National Assembly legislates the local laws of the FCT and the FCT High Court is the court with territorial jurisdiction in the FCT. Section 299 cannot be read in isolation of the part that starts with ‘and accordingly’.

“This is because the Constitution must be read together with its surrounding provisions.

“It is submitted that, the provisions of Section 299 can be interpreted to mean that the FCT will be regarded as a state to the extent of the exercising and enjoyment of executive, legislative and judicial powers by the President, National Assembly and the High Court the FCT, on behalf of the FCT and no more,” they said.

Citing some judicial authorities, Obi and the LP argued that “the Constitution is clear on the separate and distinct status of the FCT. It is treated as any other state in Nigeria.

He  added: “Further, going into the mischief of the additional requirement of 25 per cent of votes in the FCT, we note that the 1979 Constitution was completely silent on this requirement and only stopped short at stating that the winning candidate must have 25 per cent of at least two-third votes cast in all the States of the federation.

“Hence, the deliberate amendment of the drafters of the 1999 Constitution, to include the additional requirement of 25 per cent votes in the FCT must not be rendered redundant as it is possible that the drafters intended that the popularity of the winning candidate must extend not only to an appreciable geographical spread, but also to the FCT being the capital city and melting pot for all Nigerians and which would truly reflect the will of all Nigerians.”

The petitioners further contend that the Tinubu and Shettima were wrong “in the approach they have taken to the interpretation of the intention of the makers of the Constitution having regard to the provisions of Section 134(2) (b).”

Obi and the LP argued that they did substantially well to prove their case, having called 13 witnesses and tendered volumes of documents, as compared to one witness from INEC, one from Tinubu and Shettima, and none from the All Progressives Congress (APC).

They urged the court to uphold their petition and grant the reliefs contained therein.

Tinubu in his own final written address had urged the PEPC to disregard claims by the petitioners that it is mandatory for a candidate to score 25 per cent of votes in the Federal Capital Territory (FCT) to be declared President.

He insisted that such claims could have been as a result of either their misreading of the Constitution or their miscomprehension of the relevant provisions of the nation’s ground norm.

According to him, Atiku and Obi failed woefully to establish their claims with adequate and relevant evidence as required by law

Tinubu said he won the election with 8,794,726 votes ahead of Atiku/PDP, “who were his closest rival, though trailing at a distance with the total of 6,984,520 votes,” and Obi/LP who “came a distant third with a total of 6,101,533 votes.”

Besides, he said while he polled more than 25 per cent of the total votes cast in 29 states, Atiku secured same in 21 states, while Obi got 25 per cent in only 16 states and the FCT.