Obi, Atiku, Tinubu: Why Court of Appeal’s unanimous judgment is unassailable – Robert Clarke

Obi, Atiku, Tinubu: Why Court of Appeal’s unanimous judgment is unassailable – Robert Clarke

Sunday, September 17, 2023 9:28 am

Robert Clarke

Robert Clarke

Chief Robert Clarke , a Senior Advocate of Nigeria speaks on the verdict given by the Presidential Election Petition Court (PEPC), dismissing the cases of the petitioners against President Bola Ahmed Tinubu and the All Progressives Congress (APC). But, the candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, and his Labour Party (LP) counterpart, Peter Obi, have  shouted blue murder, insisting that they appeal to the Supreme Court. However, Clarke advises the petitioners to reconsider the idea of dragging the matter further.

What’s your view of the trial court of the PEPC in the last judgment favoring the incumbent president?

My personal view and I believe that this view has been enriched with my experience in the dispensation of justice at the bar.  I have every belief and I seriously believe that the unanimous judgment of the Court of Appeal is unassailable.  It is as fixed as you can fix anything and I can assure you that, if there is an appeal, I doubt if there is anything that can come out of the appeal.

This assertion is too categorical and too preemptive of the Supreme Court.  Why did you say so?

Well, let us be clear to ourselves.  All the matters based on law that were brought before the tribunal had already been adjured by the apex court in this country.  Therefore, if I were to say my personal reasons for my earlier statement, there was no need for the tribunal to have gone through all of that.

Take for instance, in Atiku’s case, no real point of law was canvassed, but points of facts.  And in tribunal matters, when you bother with a point of fact, the law says you must provide the particular facts upon which you want the court to judge the case.  As the tribunal rightly said, Atiku’s counsel for one reason or the other never presented any fact before the court that could make the court look into those facts and be able to say categorically one way or the other whether there merits in those facts or not. Therefore, any reasonable lawyer, apologies for my word, would not have taken the matter considering the available facts before it and asked the tribunal to adjudge on the matter.

Secondly, the Labour Party was pressing their case on what the law says and it does not say. At least, all the materials the Labour Party presented before the tribunal were decisions that had been held and upheld at the apex court.  So, what are you asking the tribunal to do? Do you want the judges to sit on an appeal against the judgment of the Supreme Court.? Whether Abuja can be granted a special status against the judgment of the Supreme Court, this matter had already been decided. Now, asking the tribunal to create a special status where you must make 25 percent or else you die if you don’t win an election?

Natural justice, morality, and indeed whatever area you want to turn the statement into, you will find that where morality and natural justice meet, we lawyers will say that we must stand on the position of the law.  The law is very clear on this.  Abuja, even though it is not a state, the Supreme Court says we will concede to you that you are a state for all that purpose.  Nevertheless, we do not advise you to take advantage of the fact since we have said you are like a state, you will now be granted special priviledge.  That is not the intention of the Supreme Court.  Therefore, if the law says, to be the president of Nigeria, you must have 25 percent in two-third of the states in Nigeria, then, Abuja can be treated as a state.  But to say that since the word, and had been used, though the English Language can be used in many ways. Then, you can say even if a man has won the 36 states and had 25 per cent but he does not have 25 percent in Abuja, then, he’s not deemed to have won. The reasoning of that nature needs to be reconsidered.  We lawyers used to say in my time that this is the harvest period for lawyers.  They believed that if politicians have illegally made their money, apologies for my words, that it is their turn to make money, too. So, lawyers, without considering their status at the bar, without considering that they are senior members at the bar will just take any brief without thinking about the state of the law of the brief they are taking. This is a debate for another date.  I will not want to castigate any lawyer. I will not want to impugn on the integrity of any lawyer.  If Robert Clarke and if I were briefed to take the brief of one of the appellants, I will refuse it.  I will make them know that in this area of law, Tinubu has been found not guilty of having been convicted; Tinubu has not been found guilty of having no certificates to contest; this Abuja matter had been decided in three or four other cases.

In view of several decided cases and the position of Section 299 of the Constitution, I know that the petitioners may not be satisfied with the PEPC’s position. How do you think we can then resolve something that has become like a ‘mischievous reasoning’ into the position of the constitution?

It will not be a mischievous reasoning.  I don’t think any court will say that. How can you say that a man who has the majority votes, a man who won the 36 states, cannot be pronounced president because he did not win one state?  It means you are giving that state a special privilege in the constitution.  And the Supreme Court has consistently said that, Abuja, you are not a state.  But we will concede to you that you are a state, where we feel you should be regarded as a state.  One of the circumstances is this one. If you want to produce 25 percent, then it should not mean that by that priviledge, you supersede all other states. It is more than absurd.  I believe no reasoning tribunal will hold that line of position.

How do you think going forward, our laws can resolve this so that there won’t be any kind of lacuna as far as FCT is concerned?

Look, the problem in Nigeria should not be left at the hands of the court.  If we continue the way we are going and we fail to look at our statutes in respect of election, we will continue to be rushing to court and we will continue to be opening our courts to all the biases in this country. Let me be honest to you.  The law that created the electoral act has not been very nice to Nigerians. Number one, how can you say that the Independent National Electoral Commission (INEC), which is considered as the electoral umpire, is right in whatever it does in the course of conducting an election because of the Evidence Act? The Act says any action showing that any act been done by a government agency or by government will be presumed to be correct.  We call that the presumption of correctness attached to any document by INEC.  So, if INCEC comes to court and says I conducted this election, these are the papers I used, and they are correct.  There is a presumption immediately that the court will hold that it is correct.  Now, the whole burden of proof shifts to all those who are challenging the documents to show evidence.  And that was what the court was saying. The tribunal said, look, you know the law, being lawyers of many years standing, so, you know that when you come before the court and after your pleadings have been taken, you must go by your pleadings.  If you fail to show evidence, which the law says you must show to topple what INEC says, then why do you have to come to court? Why not go and look for the evidence? One of the problems we have in this country is INEC.  It has to be debarred from that toga of correctness attached in the conduct of the election.

The constitution has empowered INEC in the manner it has to conduct elections in compliance with the Electoral Act. INEC has said it will transmit election results but that didn’t happen in some cases. And the court has made its position known on that. How do you place that?

You see, INEC has been enjoined by statutes to ensure that in the conduct of elections, it follows, not only the statute, to be able to follow any other rules it brings out.  But, we should be able to follow what constitutes law and constitutes discretion. That aspect of the law you referenced only granted INEC discretion in conducting an election.  That is the discretionary aspect of INEC.  Now, INEC is telling us that yes, I wanted to do it that way, but since it is my discretion, I discovered I had a hitch and I could not because of that hitch stop all other jobs that the Act has asked me to do.  No.  By virtue of the doctrine of correctness, if you feel INEC is telling lies or INEC is hiding certain facts, you as the lawyer should now bring those facts to the tribunal to say we don’t believe INEC’s claim of any hitch and our reasons for not believing are this, this and this with their particulars. It is those particulars that constitute what we, lawyers call, pleadings. And cases are won and lost on the pleadings before the court. INEC says ok, I was given discretion to conduct an election.  But, unfortunately, I couldn’t do it that way because I had a hitch on my machines.

Is that kind of excuse tenable?

It is. That is the law. If it is a mandatory position, if it is part of the law that you must transmit in a particular manner and you didn’t do it that particular manner, you have to give reasons. That, however, is not the law. The Electoral Act does not say elections must be transmitted electronically. No. It gives INEC the discretion to transmit to whatever way and manner it deems fit.

Chief, but INEC itself told Nigerians the manner in which it was going to conduct that election. Wasn’t that enough commitment from the electoral umpire to transmit the results through the IREV?

The problem with us Nigerians is that we like to hide many things and allow our political inclinations to affect whatever we do. Look, the same INEC you people are claiming says to do this, or that, look at the results in the eastern part of Nigeria; look at the results from Delta State, who has challenged INEC there? In the Eastern region, INEC declared that Obi won almost 95 percent of the votes, has anybody challenged that?

Sir, what do you make if the constitution has placed the INEC to do a certain duty and the commission has said it was going to do in a certain way, wasn’t a burden for INEC to deliver and if INEC does not deliver, can’t it be held responsible?

To be honest, if I had been reached to take Peter Obi’s brief, I would have advised him that his grouse or issues raised are not in the law. What is in the law is a discretion to transit and if it does it one way or the other and could not do it as in this case, I would have told them to show me that they should show me where INEC says it had hitches. If they said they have evidence, then, I would have asked them to give me the particulars, then, I would have taken the brief and go and plead those facts to prove that INEC was lying when it said it had hitches.  I would have taken my forensic experts and made evidence to the effect that INEC was telling lies.  But, all these were not done. INEC said I could not do it because I had hitches and all the lawyers stopped there.  They did not take INEC on it. What type of hitches did you have?  They should zero in on this under cross examination. And INEC now explains the type of hitches it had, they would have gone to call their own witnesses and good lawyers to speak to that. If they had done that, the court would have been given the opportunity to listen to the two sides and look at the evidence.  Unfortunately, all these were not available.

Politically speaking, where do we go from here?

Let me tell you that where we are today in Nigeria is that we are moving backwards in our laws on elections and this is what we will always get when we hold elections except independent candidates should be allowed to contest elections in Nigeria. The problem with elections in Nigeria today comes from the party; the caucus of the party, they dictate to Nigeria whom to vote for.  And this is happening because the constitution does not allow independent candidates. Only political parties can sponsor candidates to elective positions.  Until the law is amended to allow independent candidates, we will continue to witness this.  Most of the problems in the country today are caused by the political parties.  They are holding Nigerians to ransom because whoever the party decides, will become the president.  You and I don’t have control over that. Let lawyers and a group of Nigerians who have the country at heart pursue this.  These politicians will not want to change the law.

Where do you think we can go in healing the land?

Number one, those who can help us to move forward are the same people who are benefiting from the quagmire we are in.  For instance, look at the local governments, they do not exist in a practical sense.  We know that the state governors control the local governments.  Their money goes to the state and the governors give them what they think they should give them.  In clear terms, we don’t have local governments. If only our politicians will allow the local governments to work, we will not move.  Imagine a man who is doing well in his locality and he wants to vie for councillorship, he cannot do that without joining a political party.  We have to first of all remove that from our constitution. Once we remove that, there will be progressive.  But, I fear that nobody will do it because those that should champion that cause are the same people benefitting from the system. My prayer is that we should jettison the whole idea of the 1999 constitution and allow the citizens to get their own constitution.

* Channels Television interview published by The Nation


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