By Nwankwo T. Nwaezeigwe, PhD, DD
Opinion: A popular maxim among the Igbo states: “Asi na a di mma na oyibo” (Lies are better stated in English). In other words, if you want to speak big lie, the best option is often to speak in English. This is case with the legal jargon called Estoppel as it particularly applied in this case wherein it was used as a legal weapon to clandestinely cover-up INEC non-compliance to its bylaws, defined in this context as INEC Regulations and Guidelines for the Conduct of Elections.
We may begin by asking the question, what is “Estoppel?” In simple and ordinary man’s terms, estoppel means “to stop.” However, in legal terms, it is dressed in the garb of weaponized technicalities under which lawyers hide to shut out justice from the people. According to Will Kenton:
The term estoppel refers to a legal principle that prevents someone from arguing something or asserting a right that contradicts what they previously said or agreed to by law. Put simply, estoppel prevents one person from contradicting an action or statement from the pas.
This was where the judges of Presidential Election Petitions Court anchored their derisive judgment on INEC non-compliance with its own Regulations and Guidelines for the Conduct of 2023 General Elections, basing their ground of Estoppel on the judgment of the Federal High Abuja in Suit FHC/ABJ/CS/1454/2022: Labour Party v INEC.
In the concluding part of their judgment on the issue of INEC non-compliance with the use of BVAS to transmit the result of the 2023 Presidential election, Justice Haruna Tsimmani and his colleagues conclusively held:
It is also pertinent for us to state that in the final address of the 1st Respondent, our attention was drawn to the recent decision in APPEAL NO. CA/LAG/CV/332/2023: APC V LABOUR PARTY & 42 ORS, wherein the Court set aside the decision in Suit No. FHC/L/CS/370/23” LABOUR PARTY & ORS v INEC, another case forum-shopped by the 2nd Petitioner at the Lagos Division after losing out at the Abuja Division of the same Court in Exhibit X1. In the judgment in Appeal No (sic). Appeal No. CA/LAG/CV/334/2023: APC v LABOUR PARTY & 42 ORS, THIS Court had upheld the decision of the Federal High Court in Exhibit X1 (Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC), and construed same against the Petitioners issue estoppel, in relation to the Petitioners’ contention which they are making in this Petition, that is, that INEC is mandatorily required to electronically transmit election results. By virtue of Section 122 (2) of the Evidence Act, this Court is entitled to take judicial notice of the decision in Appeal No. CA/LAG/CV/332/2023: APC v LABOUR PARTY & 42 ORS. Not only that, this Court is by the doctrine of precedent bound by that decision. Since the above judicial pronouncements have decided that under the Electoral Act and INEC Regulations and Guidelines for the Conduct of Elections, the 1st Respondent cannot be compelled to electronically transmit election results, the Petitioners are clearly estopped by these decisions from contending in ground 2 of this petition that the 1st Respondent is mandatorily required to electronically transmit the election results of the collation system.
Now, what did the decision of the Federal High Court, Abuja herein presented as Exhibit X1 (Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC, which formed the originating basis of the Estoppel say?
The Labour Party had approached the Federal High Court Abuja against the Independent Electoral Commission (INEC) with the following prayers:
A Declaration that the Respondent has no power to opt for manual method other than the electronic method provided for by the relevant Provisions of Electoral Act.
An Order of this Honourable Court directing/compelling the Respondent to comply with the Electoral Act, 2022 on electronic transmission of result in the forthcoming general election.
In his judgment which supposedly ran against the above prayers, the trial Judge held:
In view of the foregoing, can the action of the Defendant in collating and transferring election results manually in the forthcoming 2023 general elections be said to be contrary to the relevant provisions of the Electoral Act, 2022? The answer can only be in the negative as there is nowhere in the above cited sections where the Commission or any of its agents is mandated to only use an electronic means in collating or transferring of election results. If any, the Commission is only mandated to collate and transfer election results and number of accredited voters in a way or manner deemed by it. In view of the above, I am finding that the provisions of Section 50(2) and 60(5) of the Electoral Act, 2022, the correct interpretation of the said Statute is that the Defendant (Independent National Electoral Commission) is at liberty to prescribe the manner in which election results could be transmitted and I so hold. Consequently, this matter is hereby dismissed.
One issue which was not part of the above judgment but which was criminally imported into the concluding part of the Presidential Election Petitions Court judgment was the INEC Regulations and Guidelines for the Conduct of 2023 General Elections. The legal basis of the litigation in the Federal High Court, Abuja herein presented as Exhibit X1 (Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC was the Electoral Act, 2022. There is no paragraph or sentence anywhere in the Court’s Judgment quoted above, was INEC Regulations and Guidelines for the Conduct of 2023 General Elections mentioned, much more being the legal basis of the litigation.
In the final paragraph of the judgment against Labour Party, Justice Haruna Tsimmani and his Colleagues stated quite clandestinely:
Since the above judicial pronouncements have decided that under the Electoral Act and INEC Regulations and Guidelines for the Conduct of Elections, the 1st Respondent cannot be compelled to electronically transmit election results, the Petitioners are clearly estopped by these decisions from contending in ground 2 of this petition that the 1st Respondent is mandatorily required to electronically transmit the election results of the collation system.
The question is, from which part of the judgment in Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC did they import the term, “INEC Regulations and Guidelines for the Conduct of Elections”, because as far the judgment is concerned, the legal base of the litigation was Electoral Act, 2022? This is one fundamental question that puts the judgment of the Presidential Election Petitions Court into the level of “Oluwole Judgment”—a cash and carry judgment.
Furthermore, looking at the judgment in Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC, it is clear that there are two separate and independent opinions. The first part dismissed the first prayer outright. And I fully concur with the trial Judge. The second opinion deals with the issue of INEC being mandated by Electoral Act, 2022, “to collate and transfer results and number of accredited voters in a way or manner deemed by it.” This is further affirmed by the concluding paragraph of the judgment. Although I equally concur with this opinion, but with overriding questions, which indeed form the determining factors of the validity of the application of the principle of Estoppel.
The fundamental questions which arise from the second opinion and indeed which form the crux of the question of non-compliance with respect to the use of BVAS, which the Presidential Election Petitions Court Judges failed to look at, either by deliberate act of omission or consequence of their limited intellectual preparedness for the task before them are:
First, having been mandated by Statute to prescribe at its liberty “the manner in which election results could be transmitted”, which other manner other than BVAS was prescribed by INEC for the transmission of Presidential election result?
Second, did the manner prescribed by INEC for the transmission of election results latently or expressly prescribe manual transmission of results as alternative to the use of BVAS which it legally pronounced as the sole means of transferring election results?
Third, if the Electoral Act, 2022, mandates INEC to freely prescribe the manner in which election results will be transmitted, does the same Electoral Act equally mandate INEC to freely disregard the same manner it prescribed? This is the bone of contention. In other words, does the right to make laws grant the law-maker the right to disobey the same law?
Fourth, is it not right therefore to say that, by refusing to comply with its own prescribed manner of transmitting results (Regulations and Guidelines for the Conduct of 2023 General Elections), INEC indeed acted in defiance of the judgment of the Federal High Court, Abuja in Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC, as par the second opinion? You cannot make laws and refuse to abide by the same laws.
Fifth, if Labour Party says to INEC, look, we agree with the Federal High Court judgment that you are at liberty to prescribe the manner in which election results should be transmitted, but we insist you must abide with the said manner prescribed by you, does that translate to presenting the same prayers as in Suit No. FHC/ABJ/CS/145/2022: LABOUR PARTY v INEC and by extension constitute the basis for the application of estoppel?
It is therefore clear that the issue before the Presidential Election Petitions Court was not that of seeking the court’s declaration that INEC has no power to opt for manual method other than the electronic method provided for by the relevant Provisions of Electoral Act. That was settled.
INEC has the power to opt for manual transmission of results unrestricted if it had wished to do so; but it failed to do so. Instead, it opted by choice, the use of BVAS for the transmission of the results, which was judiciously, carried out in the cases of the Senatorial and House of Representatives elections, conducted the same day and at the same venues with the Presidential election. The contention therefore is that whatever or whichever option INEC freely decides to adopt must be officially established through a framework defined by its regulations and guidelines. This was what INEC did when it pronounced BVAS as the sole means of transmitting results of the elections. Is INEC not bound to comply with its chosen method of transmitting election results?
The issue before the Presidential Election Petitions Court again was not that of seeking an Order of Court directing/compelling INEC to comply with the Electoral Act, 2022 on electronic transmission of result in the forthcoming general election. The issue is that of INEC’s failure to comply as a matter of the constitutionality with the same regulations and guidelines enacted by her for the purpose of conducting the 2023 General Elections.
It is a matter anchored on the principles of equity and the burden of responsibility of the lawmaker obeying the same law enacted by him; in this case defined by INEC’s prescribed manner of result transmission pursuant to the judgment of the Federal High Court in Suit FHC/ABJ/CS/1454/2022: Labour Party v INEC.
In fact, it is improper in the first instance for any Court to compel INEC to obey the Constitution of the Federal Republic of Nigeria, 1999, the Electoral Act, 2022, and its own regulations and guidelines for the conduct of elections. This is because INEC itself is a product of the Constitution of the Federal Republic of Nigeria, the Electoral Act, 2022, being the leg on which it stands, and its regulations and guidelines, its hands.
Compulsion can only come in where the question of power of control is vague and without any definite statutory backing. The Constitution of the Federal Republic of Nigeria, 1999, and the Electoral Act, 2022 are apropos on what roles INEC shall play in the context of the statutory powers establishing it. Any deviation from these roles constitutes outright disobedience of the law. This was what Labour Party and Peter Obi demanded from the Presidential Election Petitions Court when they stated in paragraph 5 (i) of their prayers thus:
“That the Presidential election conducted on 25th February, 2023 is void on the ground that the election was not conducted substantially in accordance with the provisions of the Electoral Act, 2022 and the Constitution of the Federal Republic of Nigeria, as amended.”
Instead of addressing the prayers which stand out factum probans on their merit, being the factum probandun on which the entire case stands, the defence counsels in active collaboration with the judges decided to absurdly seek an escape route through frivolous technicalities founded on Estoppel through the lever of the first part of the judgment of the Federal High Court, Abuja. Even still, such reliance on the first part of the Abuja Federal High Court judgment is wobbly, being mere declaratory in nature, which comes by way of the discretion of the trial judge.
This right of discretion which is founded on the personal opinion of the trial judge is clearly affirmed by the Supreme Court in its judgment on December 2, 1963, in Case No. F.SC/163/1963: Ogundaro & ORS v Okanlawon and ORS, presided by Hon. Justice Sir Lionel Bret, JSC and read by Hon. Justice John Idowu Conrad Taylor, JSC, when she averred thus: “It has been said that the making of a declaratory order is within the discretion of the trial judge and this discretion should not be readily exercised.”
The fundamental question arising thereof is, can a declaratory judgment based on the discretional opinion of the trial judge override the Constitution of the Federal Republic of Nigeria, to the extent of acting as Estoppel to a matter, of which its substance is based on the merit of facts? This is the crux of the matter which Justice Haruna Tsammani and his cronies hid under the carpet of justice in their delivery of their OLUWOLE JUDGMENT.
Incredibly, of the plethora of authorities cited by Justice Tsammani and his cohorts to justify their surreptitious application of Estoppel, only one can partly be seem to be relevant to the substance of their application of Estoppel, vis-à-vis the watery submissions of the three defence counsels—A. B. Mahmoud, SAN, Chief Wole Olanipekun, SAN, and Prince Lateef O. Fagbemi, SAN, and which indeed is faulted by relevant facts and precedents.
To be continued.
Nwankwo T. Nwaezeigwe, PhD, DD
Odogwu of Ibusa, Delta State
Institute of African Studies, University of Nigeria, Nsukka
Leader, Coalition against Christian Genocide in Nigeria (CAC-GEN)
Email: Nwaezeigwe.firstname.lastname@example.org Website: https://cac-gen.org
Date: September 21, 2023
NB: This opinion is solely that of the author and does not in any way reflect that Portfolio Media