Below are the brief analysis on the contents of that address by MissPearls :
On Issue One: Whether the elections were duly conducted in line with the provisions of the Constitution and Electoral Act They began their argument with S.135 of the Electoral Act, harping on how no election can be perfect.
They went ahead to lay special emphasis on substantial compliance, built a foundation around non-compliance not being enough reason for invalidation of an election except where it is substantial enough to affect the outcome of the election and argued along the lines of interpretation utilizing the word “shall” as their anchor. They proceeded from there to belittle the transmission of results to the iREV, painting it as an optional activity that INEC could choose to discard at will in favour of manual collation.
On this foundation they are telling the court that our reasons are unsubstantial enough to affect the outcome of the elections since the Act said “an election shall not be invalidated by reasons of non-compliance if it appears to the tribunal or court that the election was conducted substantially in accordance with the provisions of the Act…” Still along the line of interpretation of statutes they noted that the legislature whenever it uses the word “shall” in an enactment it connotes mandatoriness.
They supported this with the cases of Ugwu v Ararume and Diokpa F.Onochies & Ors v Ferguson Odogwu &Ors. They further broke down the section (S.135 Electoral Act) and said the legislature made room for human error in elections by saying the election shall not be invalidated by reason of non-compliance. Going further they’re saying the phrase “if it appears” creates room for exception in that even if a petitioner can prove substantial non-compliance if it doesn’t appear as such to the tribunal/court the election should not be invalidated.
They’re relying on the case of Abubakar v Yaradua where the Supreme Court described the provisions of the then Electoral Act in the following words “The operative words in Section 146(1) are “if it appears”…” They further aver that “in accordance with the principles of this Act” doesn’t imply strict adherence but rather the Act is meant to serve as a guide to the Court.
Their litmus test for ascertaining whether the election was conducted in substantial compliance with the principles of the Electoral Act begins with first identifying the principle itself and they’re relying on the case of Skye Bank Plc v Iwu which enjoins courts to have reference to the long title of statutes, in this case the long title of the Electoral Act 2022 which describes the Act as “an Act…to regulate the conduct of Federal, State and Area Councils in the Federal Capital Territory elections and for related matters”.
Reading this alongside S.135 Electoral Act, it appears to the respondents (BAT/Shett) that the central principle of the Electoral Act is the “substantial conduct of elections and declaration of winners through plurality of votes” which they feel was demonstrated by the massive votes given by the people or as they coughed it “plebiscites of the voters”. They submit relying on the definitions of the word “substantial” from Blacks Law Dictionary 11th Edition and New Lexicon Webster’s Dictionary of the English Language that even if an election has not been conducted substantially in line with the provisions of the Act the petitioner must establish clearly how the non-compliance has affected substantially the entire outcome of the election not just ordinarily.
They’re saying the non-compliance must be of a high degree as opposed to gain saying. They also noted that the provisions of S.135 Electoral Act has been similarly reproduced in other jurisdictions with slight wording variations and it has been occurring in our electoral acts since the first republic (they listed the appropriate past sections) They cited the case of Ogboru v Okowa wherein the court held that:
“for an allegation of non-compliance the petitioner must do the following; i. Show that the corrupt practice or non-compliance took place ii. Show that the corrupt practice or non-compliance substantially affected the result of the election. The quantum of measurement and consideration is not to show that there was a proof of non-compliance as it is almost impossible to have a perfect election anywhere in the world.
The measure however is whether the degree of non-compliance is sufficient enough so as to vitiate the credibility of the election held. The reason for the proof on the balance of probability is not far fetched therefore”. They proceeded to highlight that the evidence of the witnesses called upon by Labour Party confirms every aspect of the election especially the voting and counting went well with the only exception being the transmission of results which they had through their earlier arguments painted as optional.
They then proceeded to try to destroy the testimony of the witnesses called by Labour Party highlighting that PW9, PW10 and PW 13 have testified against their own interests by admitting the elections were peaceful and all processes followed except the transmission of results and concluded with the fact that the petitioners were throwing tantrums. They relied on Abubakar vs Yaradua to further drum in their point that even if non – compliance is proven and results were not affected substantially that the petition should be dismissed.
The further pleaded the De-minimis rule (which means that of small things, the Law knows no cure) for Abuja arguing using the precedent of Awolowo vs Shagari that even where it was alleged that Shagari did not score 25% of the votes in Kano state, the court held that he complied with the provisions of the Law having secured more votes across the country than his challengers.
They’re asking the court to apply this to Tinubu as well in respect of Abuja since he secured more votes across the country than his challengers and scored 25% in 29 states. They then proceeded to attempt to destroy the evidence of the petitioner’s expert witnesses describing the software engineer in particular (PW2) as one who has never designed software used in a general election and that the materials he used for his analysis were on his laptop which was not made available to the court. They moved from here to the Cloud engineer (PW7) alleging that the documents she used in proving her connection with AWS were unsigned and as a result should not be admitted and her evidence and testimony should be deemed worthless.
They also pointed to the fact she was there in personal capacity not on behalf of AWS and alluded to AWS’s outages 27 times in 2021 as evidence of the unreliability of AWS. They concluded with the fact that she was conflicted, as she contested a seat under LP and admitted before the federal high court that the INEC site had experienced glitches when she tried to upload her information as a candidate on it.
They attacked the evidence of the Professor of Mathematics (PW4) describing it as inaccurate (having covered just two states; Benue and Rivers). They proceeded to suggest that his terms of reference which are i) to carry out data analysis state by state ii) compare and contrast Inec’s declared results with the results on IREV and iii) Determine INEC compliance with the Electoral Act, 2022 and the INEC Regulation and Guidelines for Conduct of Elections, 2022 were too wide especially the third one in view of the fact that he was a Mathematics professor and not a legal practitioner.
They further alleged that he did not meet up with his other two terms of reference as his analysis was limited to two states only. They accused PW8 (the backend engineer) of submitting unreadable encrypted codes and meta data in a strange language which he did not intend the court to make use of as the Language of the court is English.
They further accused the petitioners of dumping documents before the court and proceeded to tender a Federal High Court judgement granted on January 23, 2023 in a suit between LP and INEC which held that Inec is at liberty to choose the mode of voting and transmission of results. They alluded further that the judgement should be treated as a Judgement in rem that should be complied with by every power and authority in Nigeria and immediately proceeded to accuse the petitioners of taunting the court and demonstrating outright disregard for the Judiciary by parading and ventilating the same issues decided by that FHC Judgement. —Courtesy