K-Legged Submissions on Estoppel by INEC Counsel A. B. Mahmoud (Quota SAN)— Proof of a Judgment Written by a Third-Party

K-Legged Submissions on Estoppel by INEC Counsel A. B. Mahmoud (Quota SAN)— Proof of a Judgment Written by a Third-Party

…Issue 2 Of The Presidential Election Petitions Court Judgment

By Nwankwo T. Nwaezeigwe, PhD, DD

Part 5

Opinion: Hon. Justice Olabode Rhodes-Vivour, JSC, in frowning against those Judges who out of detestable pecuniary reasons assume the role of “Counsels” in their judgments by padding the inadequacies of the submissions of their preferred Counsels with facts hitherto not submitted held:

I must point out that under Section 22 of the Supreme Court Act this Court has power to evaluate evidence which a trial court failed to consider and make correct findings which the trial court failed to make. This Court has no jurisdiction to correct mistakes of counsels or assist counsel to prove his case.

A sublime analysis of the submissions of the three lead defence counsels—A. B. Mamoud, SAN, for INEC, Wole Olanipakun, SAN, for Tinubu and Shettima, and Lateef Fagbemi, SAN, for APC, on “Issue 2”, vis-à-vis the judgment of the Presidential Election Petitions Court led by Justice Haruna Tsimmani proves that not only were the Judges engaged in premeditated cover-up and intentional gamboling of those submissions considered to be self-indicting by the above three Senior Advocates of Nigeria, but that elements of facts not included in the submissions of the defence counsels were illicitly imported into the body of the judgment; thus hazarding the evidence of a judgment not written by the judges but by an external agent.

It should be recalled that we were informed in their judgment by Justice Haruna Tsammani and his colleagues that their decision on “Issue 2” was anchored on:

Whether having regard to the evidence adduced by the parties the Petitioners have established that there was sufficient non-compliance with the provisions of the Electoral Act, 2022, and that the non-compliance substantially affected the results of the election.”

Hon. Justice O. Uwaifo, J.S.C. in his lead judgment in BUHARI & ANOR V. YUSUF & ANOR (2003) LPELR-812(SC) succinctly affirmed that, “an election petition being sui generis is governed by a particular law enacted for that purpose with its peculiar provisions which must not be negated by some civil procedure rules.” He went further in the same Suit to hold:

Election petitions are distinct from the ordinary civil proceedings: see Obih v. Mbakwe (supra) at p.200 per Bello, JSC; at p. 211 per Eso and Aniogolu, JJSC. It is such that in certain circumstances the slightest default in complying with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in fatal consequences to the petition.

This means that, in determining the above prayer, due diligence shall be applied in complying with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, Electoral Act, 2022, and INEC Regulations and Guidelines for the Conduct of Elections, 2022.

What we however noticed in the Judgment was the prejudicial application of this principle of justice and litigation only where it favcoured the Respondents—INEC, Tinubu, Shetima, and APC; as in the matter of filing the statements of witnesses out of time by Labour Party and Peter Obi; which however I consider as moronic madness on the part of Peter Obi’s lawyers led by Levy Uzoukwu with such intellectual legal expert as Dr. Mike Ozekhome in attendance.

On the other hand, we equally discovered the copious discarding of the same principle when it favoured Labour Party and Peter Obi. As in the cases of the prejudicial application of the principle of estoppel and, the deliberate concealment of evidence founded on this principle which were likely to adversely affect the cases of the Respondents—INEC, Tinubu, Shetima, and APC.

In their responses to Issue 2, the defence lawyers— A. B. Mamoud, Wole Olanipekun, and Lateef Fagbemi, advanced in their respective final addresses, a number of hypothetical legal questions aimed at determining their respective positions on the matters before the Court. A. B. Mamoud on his own case raised five of such hypothetical questions, of which paragraph (b) is relevant to Issue 2 under discourse. Similarly, Wole Olanipekun formulated four hypothetical questions, of which paragraph (1) is relevant to our present subject matter. Lateef Fagbemi on his right similarly framed four of such hypothetical questions, of which paragraph (2) is relevant to the matter before us.

We will take these hypothetical questions seriatim, analyzing them respectively in the contexts of: first, their respective submissions, and second, the judgment. The theoretical question before us therefore is, how far did these hypothetical legal questions ally with their respective submissions and consequently the judgment?

In paragraph (b) of his five hypothetical legal questions, A. B. Mamoud had posited:

Whether having regard to Section 47 (2) and (3) of the Electoral Act, 2022, paragraphs 38 and 92 of the Regulations and Guidelines for the Conducts of Elections, 2022, the inability of the 1st Respondent to transfer or transmit the results of the Presidential Election to the iReV Portal real time amounted to non-compliance to Electoral Act and whether such non-compliance substantially affected the outcome of the election. (See pages 140-141 of the Judgment).

The first observation of note from the above hypothetical question is the irrelevance of Section 47 (2) and (3) of the Electoral Act, 2022, cited above, which harps on “Accreditation of Voters and Voting”, to “Issue 2” of the judgment; and of course, A. B. Mamoud never made mention of this Section again throughout the course of his submission.

The second observation is that A. B. Mamoud artfully avoided paragraph 38 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, which he cited above throughout the course of his submission, because of its damaging character to his case, since it deals directly with the issue of transmission of election results by means of BVAS.

The third observation further reveals that paragraph 92 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, cited above as relying authority simply harps on collation of election results and not transmission, and thus of little or no relevance in the determination of “Issue 2.”

The fourth observation of note is that, in addressing the above hypothetical question, A. B. Mamoud raised a number of self-committing points of law which the Judges, instead of addressing on merit decided to discard in favour of the technically-questionable principle of estoppel, as will be proved by the following seriatim analysis of his submission.

First, his opening affirmation that “there is a presumption of regularity in favour of an election as declared by the 1st Respondent”, and not a “presumption of irregularity”, simply implies that INEC cannot definitely assert that the Presidential election results it declared was credible, if we apply the word “presumption” to both its applied and commonsense meaning.

According to Merriam-Webster Dictionary, the word “presumption” means:

An attitude or belief dictated by probability: ASSUMPTION; the ground, reason, or evidence lending probability to a belief; a legal inference as to the existence or truth of a fact not certainly known that is drawn from the known or proved existence of some other fact.

It is therefore incontrovertible to state that the authorities cited by A. B. Mamoud, viz:- “King v INEC & Ors (2008) LPELR-4403(CA)”, “Lawal v APC (2009) 3 NWLR (Pt. 1658 (86)”, and “Section 134 (2) of the Electoral Act, 2022”, to buttress his points are not only irrelevant to the trajectory of his argument but contradictory to his point of law; particularly Section 134 (2) of the Electoral Act, 2022, which deals on  “Grounds of Petition” and states inter alia:

An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.

The questions raised by “Issue 2” for determination are not matters of “act or omission contrary to an instruction or directive of the Commission or officer appointed for the purpose of the election.” They are matters of law with umbilical cords originating from the Constitution of the Federal Republic of Nigeria, 1999, through the Electoral Act, 2022, particularly as related to Section 50 (2) which states: “Subject to section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission.” The question which is at the fountain of this sub-section is what was the procedure adopted by INEC and to what extent was it complied with?

In a move that clearly defines his homunculus understanding of the Electoral Act, 2022, A. B. Mamoud in his second ground of argument succinctly affirmed that “it is only a complaint of non-compliance which is based on the express provisions of the Electoral Act, 20222 that can ground an action to question an election.” This is expressly proved by Section 50 (2) cited above, which he pretended not to have seen. In fact, Section 138 (2) he advanced in support of his argument is totally out of point.

On his third ground of argument, A. B. Mamoud anchored his defence of his client—INEC on Section 135 (1) of the Electoral Act, 2022 which he linked with paragraphs 53 and 55 of the Petition by Labour Party and Peter Obi. As the judgment pointed out:

He referred the Court to paragraphs 53 and 55 of the Petition and pointed out that the Petitioners have founded their allegation of non-compliance on the basis that the 1st Respondent is mandated to electronically transmit and collate the election results and upload such results to the IReV Portal. He posited that there is no such obligation on the 1st Respondent to electronically transmit and collate results of the election.

Indeed the above consists of what can best be referred to as an inveterate mendacity founded on collaborative legal criminality between A. B. Mamoud and the presiding Judges. The last sentence in the above statement: “He posited that there is no such obligation on the 1st Respondent to electronically transmit and collate results of the election”; which is a “Black” lie clearly puts A. B. Mamoud’s title of “Senior Advocate of Nigeria” to question.

One wonders if this proven “Quota Senior Advocate of Nigeria” actually understands what the word “obligation” means. Now what does the dictionary say concerning the word “obligation?” The Merriam-Webster Dictionary defines “obligation” as:

The action of obligating oneself to a course of action (as by a promise or vow); something (such as a formal contract, a promise, or the demands of conscience or custom) that obligates one to a course of action; …a commitment (as by a government) to pay a particular sum of money)…something one is bound to do.

Now let us begin by looking at the introductory statement in page 7 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022:

In exercise of the powers conferred by the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2022, the Independent National Electoral Commission (INEC) herein referred to as “the Commission” issues the following regulations and guidelines for the conduct of Elections (General Elections, Off-Cycle Elections, Bye-elections, Re-run Elections and Supplementary Elections). These Regulations and Guidelines are issued pursuant to Section 148 of the Electoral Act, 2022. They supersede all other regulations and/or guidelines on the conduct of elections issued by the Commission and shall remain in force until replaced by new Regulations and Guidelines or updated by way of revisions or supplementary regulations and guidelines supported by Decision Extracts of the Commission or an official gazette.

In accordance with the above state of the law, Section 38 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022 explicitly settles the application of the word “Obligation” by nailing the nail on the head of INEC’s “Obligation” to comply with its own Regulations and Guidelines:

On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:

(i) Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.

(ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV), as prescribed by the Commission.

(iii) Take the BVAS and the original copy of each of the forms in tamper-evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Centre.

In law, the word “shall” is expressly defined by Merriam-Webster Dictionary to apply to: “regulations, or directives to express what is mandatory.” Furthermore, “Shall”, according to Cornell Law School Legal Information Institute:

Shall is an imperative command, usually indicating that certain actions are mandatory, and not permissive. This contrasts with the word “may,” which is generally used to indicate a permissive provision, ordinarily implying some degree of discretion.

In addition to the above incontrovertible state of the law, INEC in the “Background” to its Bulletin titled “ELECTRONIC TRANSMISSION & COLLATION OF RESULTS” which can be accessed at https://inecnigeria.org/wpcontent/uploads/2023/02/Electronic_Transmission___Collation_Of_Result-5.pdf  stated ipso facto:

In the event of dispute arising in the course of collation, the electronically-transmitted result shall be used to resolve it. These are clearly provided for in Sec. 60 of the Act which deals with the counting of votes, their entry into specific forms endorsed by INEC officials and candidates/polling agents and their transfer to collation centres. Furthermore, Sec. 64 (4), (5) and (6) of the Act provides for the recording and transmission of accreditation data and election results directly from the PUs using the Smart Card Reader or any other electronic device determined by the Commission.

From the foregoing, it is obvious that Section 135 (1) biblically relied upon by A. B. Mamoud to discredit the allegation of INEC non-compliance to the Electoral Act, 2022 turned out to be the very albatross to his submission. Section 135 (1) states:

An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.

Is it not criminal that the Judges did not find it morally and judiciously expedient to meritoriously rely on the above Section of the Electoral Act, 2022, as submitted by A. B. Mamoud to deliver their judgment, if they are not evidently corrupt and heinously compromised?

On the ground of estoppel based on Exhibit X1 which is the judgment of the Federal High Court Division in Suit No. FHC/ABJ/Cs/1454/2022: Labour Party v INEC, on which the Judges solely relied in their judgment on Issue 2, although having been exhaustively treated in preceding sections, it is clear that A. B. Mamoud with his highly elevated title of Senior Advocate of Nigeria, appeared to be in dark as to the true interpretation of the said judgment as it relates to both the Constitution of the Federal Republic of Nigeria, 1999, and the Electoral Act, 2022.

As clearly established in the foregoing matter of what “Obligation” and “Shall” mean in law, there was no basis for a Court to compel INEC to obey the relevant provisions of the Electoral Act, 2022, when any such disobedience has consequences in law. The Principle of Estoppel does not therefore apply when it comes to consequences of disobedience of the law. This is what “Issue 2” of the averments of Labour Party and Peter Obi is rightly saying.

Applying this “Principle of Disobedience of the Law” to A. B. Mamoud’s submission that the principle of estoppel is binding on Labour Party and Peter Obi since the former failed to appeal the judgment of Suit No. FHC/ABJ/Cs/1454/2022: Labour Party v INEC, it becomes pertinent to point out, if A. B. Mamoud did not understand, that the first part of the judgment is “Declaratory” in character and thus imposes no obligation of appeal on the Appellant. Moreover, the Supreme Court of Nigeria in its judgment delivered on December 2nd, 1963, in Suit. FSC/63/1962: Ogundairo & Ors v Okanlawon & Ors, presided by the then Chief Justice of the Federation, Sir Lionel Brett, JSC, and read by John Idowu Conrad Taylor, held that “a Declaratory Order” is within the discretion of the trial judge, and thus does not often rely on statutes.

On the other hand, the second part which is “Executory” in character, imposed the obligation to execute the decision of the Court on the Respondent, which is INEC and not on Labour Party. That obligation meant, as A. B. Mamoud rightly affirmed, that INEC is at liberty to prescribe its mode of transmission of election results. It is indeed the failure of INEC to abide by its chosen mode of transmission of election results that constitute the issue under dispute.

Finally, A. B. Mamoud’s abortive attempt to seek a devious escape route for his disastrous misunderstanding of the self-same law he was trained to deliver, through reliance on Sections 92 and 93 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, clearly generates the worrisome question: Is A. B. Mamoud really qualified to be adorned the title of “Senior Advocate of Nigeria” (SAN)? In fact, this is one of the fundamental evidence that the Five Leprous-Finger Judges did not author the judgment they read to the full glare of Nigerian citizens.

Section 92 of INEC Regulations and Guidelines states: “At every level of collation, where the INEC copy of collated results from the immediate lower level of collation exists, it shall be adopted for collation.” This was A. B. Mamoud’s submission in his attempt to apply it in his defence for INEC’s non-compliance in transmitting the Presidential election results through BVAS to IReV portal as stated in page 190 of the judgment:

Learned Counsel submitted that should the Court disagree with the contention that the decision of the Federal High Court in Exhibit X2 (sic) is binding, it is clearly stipulated in paragraph 92 of INEC Regulations and Guidelines for the Conduct of Elections, 2022 (Exhibit RA3) that collation of the election results is to be carried out manually, and there is nowhere in the regulations that such collation of results is prevented until results are uploaded on the 1st Respondent’s IReV.

The basic question arising from this Section is does the adoption of hardcopy of election results mean non-transmission of the same results through BVAS to IReV portal as required by Paragraph 38 of the same Regulations and Guidelines? This question is pertinent because the issue before the court was not collation but transmission of results, since every transmitted election result is a product of the hardcopy version.

Section 60 (5) of the Electoral Act, 2022, clearly stipulates: “The officer shall transfer the results including total number of accredited voters and the results of the ballot in a manner as prescribed by the Commission; and this manner is clearly stipulated in paragraph 38 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, cited by A. B. Mamoud at the commencement of his submission but which was not applied in the course of the same submission.

 In respect of paragraph 93 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, A. B. Mamoud submitted that:

By paragraph 93 of the Regulations the results uploaded on IReV are only to be used in the collation process where there is discrepancy in the hard copy of the Respondent’s result and those issued to a political party agents  and where the 1st Respondent’s copy is not available. He added that even where no results are uploaded on the IRev and the 1st Respondent’s hard copy is unavailable, recourse may still be had with hard copies with the Nigerian Police and Party agents.

If we take A. B. Mamoud by his words from the above paragraph, even though the submission is not totally in tandem with what Section 93 says, what he means is that INEC hardcopy of the results cannot be used alone to declared results. In other words, he agrees that the results in IReV are primarily meant to validate the results in hardcopy. Now, given that there were complaints of discrepancies in the results contained in the hardcopy by both Labour Party and People’s Democratic Party (PDP), which results from IReV portal, were used to correct such discrepancies?  This is the question A. B. Mamoud failed to answer and which the judges shoved aside through their infamous application of estoppel to cover up the stark deficiencies of the former.

To be continued.

Nwankwo T. Nwaezeigwe, PhD, DD

Odogwu of Ibusa, Delta State

Institute of African Studies, University of Nigeria, Nsukka

Leader, International Coalition against Christian Genocide in Nigeria (ICAC-GEN)

Email: Nwaezeigwe.genocideafrica@gmail.com Website: https://icac-gen.org

Date: October 6, 2023

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