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)
According to Anne Bishop, “When honor and the Law no longer stand on the same side of the line, how do we choose?” And to parody the renowned ancient Roman historian, Tacitus, “Formerly we suffered from crimes [Criminals]; now we suffer from laws [Lawyers]. As noted earlier, in defending the averments of Labour Party and Peter Obi, the Counsel to Tinubu and Shettima, Wole Olanipekun, formulated four theoretical legal questions, of which paragraph (1) is devoted to tackling “Issue 2” of the averments of Labour Party and Peter Obi. Issue 2 of the averments of Labour Party and Peter Obi as formulated by the Judges of the Presidential Election Petitions Court in their judgment says: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. (See page 188 of the judgment).Paragraph (1) of Wole Olanipekun’s four-paragraph theoretical questions addressing the above theoretical legal question addressed by the Judges states:Having regard to the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the salient provisions of the Electoral Act, 2022, the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/1454/2022: between Labour Party v INEC, delivered on 23rd January, 2023 (Exhibit X1), as well as admissible evidence on record, whether the election of the 2nd Respondent into the office of President of the Federal Republic of Nigeria on 25th February, 2023, was not in substantial compliance with the principles and provisions of the Electoral Act, 2022. (See page 142 of the Judgment)From the above theoretical legal framework, it is crystal clear that the cemen fondu of Wole Olanipekun’s argument is anchored on the last phrase: “was not in substantial compliance with the principles and provisions of the Electoral Act, 2022.” By this phrase, Olanipekun was not arguing against the fact that there was no compliance with the principles and relevant provisions of the Electoral Act, 2022. His argument was whether such non-compliance was “substantial” enough to nullify the election of Bola Ahmed Tinubu as President of the Federal Republic of Nigeria.
The key-word here is “substantial.” Let us then take a look at what the word “substantial” means in law.According to Law.Com Legal Dictionary, “substantial” means “in law of contracts: Fulfillment of the obligations agreed to in a contract, with only slight variances from the exact terms and/or unimportant omissions or minor defects. A simple test is whether the omission, variance or defect can be easily compensated for with money.Spolin & Dukes P.C. states ipso facto:Courts defined substantial evidence to mean there is more than a mere scintilla. Simply put, there is such relevant evidence that a reasonable mind would accept it as adequate to support a conclusion. When an appellate court is deciding whether there was substantial evidence, they consider the whole trial record, including all witness testimony. Now, how did Wole Olanipekun treat this theory of substantial evidence to arrive at his conclusion that Labour Party and Peter Obi presented no substantial evidence to prove their averments on Issue 2?The first attempt by Wole Olanipekun to prove that Labour Party and Peter Obi had no substantial evidence to prove that the election of Bola Ahmed Tinubu as President was a political charade, was to undertake a promenade of undressed lies, lies that would have led him to be declared a ritual persona non grata in Yoruba land of old; a lie that clearly defines him as a prodigal and “Oluwole” Senior Advocate of Nigeria (SAN); bearing in mind that this was the same Wole Olanipekun Justice Mary Ukaego Odili described as a “master” who is “well-equipped in litigation matters or electoral disputes.”What is disgraceful and dishonourable about “Oluwole” Olanipekun in his submission is that it is on this naked lie clad in primitive ignorant that his so-called “proof of substantial evidence” is anchored. This legal fib which sprouted from his outdated knowledge of the law, compounded by crafty infantile mischief and lack of understanding of modern application of common English words is that: “all the provisions of the INEC Regulations created alternative between an electronic transmission and transfer of results, with the use of the article ‘or.’” He goes further to support this hypothesis of “alternative by or” by relying on paragraphs 38 (i), 50 (xx), 53 (xiii), and 54 (xii) of INEC Regulations and Guidelines for the Conduct of Elections, 2022; and paragraphs 3, 4, 5, and 4.2.2 of the INEC Manual “where” according to him, “the words “electronically transmit or transfer” were used.”Let us take a look at what Paragraph 38 (i) of INEC Regulations and Guidelines for the Conduct of Elections, 2022, which is situated under the sub-heading, “Electronic Transmission of Results and Upload of Results to IReV.” This paragraph explicitly states:38. 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.Similarly, paragraph 50 (xx), which is under the sub-title “Collation at the RA or Ward Level” states: “50. The Registration Area/Ward Collation Officer shall: (xx) Electronically transmit or transfer the result directly to the next level of collation as prescribed by the Commission.”In the same vein, paragraph 53 (xii) which is placed under the sub-title: “Collation of Presidential Election Results at the LGA Level”, states: The Local Government/Area Council Collation Officer for the Presidential Election shall:(xii) Electronically transmit or transfer the result directly to the next level of collation, as prescribed by the Commission; and Furthermore, paragraph 54 (xii) which falls under the sub-title: “Collation of Presidential Election Result at State Level”, states: “The State/FCT Collation Officer for the Presidential election shall: (xii) Transmit or transfer the result directly to the next level of collation as prescribed by the Commission; and”It is clear from Olanipekun’s argument that his burden of understanding lies on the application of the words: “Transmit” or “Transfer.” By his limited understanding of the application of the two words, “Transmit” applies to electronic transmission of election results through the BVAS, while “Transfer” means manual conveyance of election results in the form of hard-copy. To him therefore, “Transmit” or “Transfer” indicates a mandatory choice between the two.Let us first look at what the dictionary says about the words: “Transmit” and “Transfer” before we proceed to the next level of their meaning. According to Merriam-Webster Dictionary, “Transmit” means: “to send or convey from one person or place to another”… “to send out (a signal) either by radio waves or over a wire.” It goes further to include the word “transfer” in the list of its synonyms. Similarly, the same dictionary defines “Transfer” as: “to convey from one person, place, or situation to another (move, shift); to cause to pass from one to another (transmit).” Among its many synonyms is “transmit.”From the dictionary meanings of “Transmit” and “Transfer”, it is clear therefore that each of them is a synonym of the other, and by extension of the same meaning. It therefore follows that their applications do not imply a case of alternative but the convenience of those people with insufficient knowledge of basic application of such technical words, like Oluwole Olanipekun.
Although there might be some slight technical differences in the application of the words, none of them implies manual conveyance of election results in the context of Oluwole Olanipekun’s submission. In fact, going by what INEC implied in the usage of the two words, “transfer” of results is more applicable to the use of the BVAS for electronic transmission of the results, when compared to the process of transferring money through “Western Union Money Transfer.” In other words, what is applicable under “Western Union Money Transfer” is not “Transmission” but “Transfer.”But the most convincing supporting evidence which proves that the use of the word “Transfer” in this case does not imply manual transfer of election results as concluded by Wole Olanipekun is found in its digital application. Sizes of computer data are measured in decimal units of kilobyte (KB), megabyte (MB), and gigabyte (GB), and these are moved from one location to another by means of transfer and not transmission. Similarly, “Transmit” as applied by INEC, even though not questioned by Wole Olanipekun, implied similar transfer of data and this is well explained by Collins English Dictionary in the following words: “When radio and television programmes, computer data, or other electronic messages are transmitted, they are sent from one place to another, using wires, radio waves, or satellites.” From the digital and Collins English Dictionary definitions, we can relatively conclude that “Transfer” means to transmit to a known receiving point. In other words, it entails the process of moving something from one point to a known point successfully. On the other hand, to transmit implies sending something electronically without necessarily defining its point of destination; for instance radio, television and satellite transmissions.This disastrous show of intellectual legal Lilliputism by Wole Olanipekun is further compounded by the fact that the sub-paragraphs that inputted “Transmit or Transfer” are often preceded or followed by ones that commanded manual conveyance of election results, as indicated in after 38 (i), before 50(xx), after 53 (xii) and after 54 (xii). Take for instance, 38 (i), which is followed by 38 (ii) and 38 (iii), particularly 38 (iii):(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 the case of 50 (xx), we discovered that 50 (i) states: “The Registration Area/Ward Collation Officer shall: (i) Take delivery of the original copies of Forms EC8A, EC8A (I), and EC8A (II) for the Presidential, Senatorial and the House of Representatives elections, respectively, including the EC40H (I) and 40G.” Similarly, sub-paragraph 53 (xii) is followed by 53 (xiii) which states: “(xiii) take the original copies of Form EC8C to the Presidential Collation Officer at the State Collation Centre together with other materials and reports relating to the election, including Form EC40G(I).” In the same vein, sub-paragraph 54 (xii) is followed by 54 (iii), which states: “(xiii) Take the original copy of Form EC8D together with other materials and reports relating to the election which were returned by the LGA/Area Council Collation Officers to the National Collation Centre, in a tamper-proof envelope.” It is therefore crystal clear from the above comparative sub-paragraphs that their meanings do not imply alternative application but distinct, independent and separate applications.Therefore it is trite to establish that Wole Olanipekun was absolutely wrong when he submitted that the phrase: “Transmit or Transfer” implied that the word “Transfer” means manual conveyance of election materials and thus an alternative to “Transmit.” In effect, he has proved that as a Senior Advocate of Nigeria (SAN), he lacks both the esteemed honour and intellectual ingredients of the law profession that are expected to go with the title. Indeed, if this were to be an examination question under my watch, definitely Wole Olanipekun with his highfalutin title of Senior Advocate of Nigeria (SAN) will fail woefully and nobody will blame me for failing him.Most degrading and unbecoming of a Senior Advocate of Nigeria is Wole Olanipekun’s abortive attempt to rely on paragraphs 3.4.5 and 4.2.2 of “INEC Manual for Election Officials, 2023” to prove that the phrase: “Transmit or Transfer” means alternative use of electronic or manual means of conveyance of election results, without pinpointing the related paragraph. It is an act that clearly defines a drowning gripping any object he lays his hands on for lifeline.For instance, paragraph 3.3.5 titled “Picking Up” has 9-paragraph step to be followed by election officials, with multiple sub-paragraphs and Note number 27, without a single reference to “transmit or transfer.” Paragraph 4.2.2 titled: “Collation of Registered Area (RA) or Ward Level”, contains 24-step sub-paragraphs and Note number 29 with two paragraphs and seven sub-paragraphs. Regarding paragraph 4.2.2, steps 1, 21 and 23 not only apply to the matter under disputation but glaringly prove that Wole Olanipekun was absolutely speaking out of point when he submitted that the phrase “Transmit or Transfer” applies to “Electronic transmit or Manual Transfer.” Paragraph 4.2.2, Step 1 states: “The Registration Area/Ward Collation Officer shall: Take delivery of the original copies of Forms EC8A, EC8A (I), and EC8A (II) for the Presidential, Senatorial and the House of Representatives Elections, respectively, including EC40H(I) and EC40G(PU) where applicable.” Similarly, Step 21 states: “Take custody of the original copies of Forms EC8B, EC8B(I) and EC8B(II) together with other materials and equipment and reports (if any) received from Presiding Officers at the election and deliver same to the LGA Collation Centre”; while Step 23 states: “Electronically transmit or transfer the result directly to the next level of collation as prescribed by the Commission.”Finally, Wole Olanipekun’s concluding assertion that “by paragraphs 92 and 93 of the Regulations electronic copy is only relevant where there is no hard copy of collected results”, is not only mendacious by the letters of the above cited paragraphs, but contradicts paragraph 48 (a) of the same Regulations and Guidelines, 2022, titled: “Use of Results Electronically Transmitted or Transferred Directly from Polling Units for Collation.” It states inter alia:An election result shall only be collated if the Collation Officer ascertains that the number of accredited voters agrees with the number recorded in the BVAS and votes scored by Political Parties on the result sheet is correct and agrees with the result electronically transmitted or transferred directly from the Polling Unit as prescribed in these Regulations and Guidelines. Furthermore, against Wole Olanipekun’s rudderless opinion, and for avoidance of doubts, paragraph 2.9.0 of his cited INEC Manual for Election Officials, 2023 titled: “Electronic Transmission/Upload of Election Result and Publishing to The INEC Result Viewing (IReV) Portal”, is explicit on the purpose of electronic transmission or transfer of election results in the following words:One of the problems noticed in the electoral process is the irregularities that take place between Polling Units (PUs) after the announcement of results and the point of result collation. Sometimes results are hijacked, exchanged, or even destroyed at the PU, or on the way to the Collation Centers. It becomes necessary to apply technology to transmit the data from the Polling Units such that the results are collated up to the point of result declaration. The real-time publishing of polling unit-level results on IReV Portal and transmission of results using the BVAS demonstrates INEC’s commitment to transparency in results management. This commitment is backed by Sections 47(2), 60(1, 2 & 5), 64(4a & 4b) and 64(5) of the Electoral Act 2022, which confers INEC with the power to transmit election results electronically. The system minimizes human errors and delays in results collation and improves the accuracy, transparency, and credibility of the results collation process.Paragraph 92 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, titled: “Use of INEC Copies of Results where Available”, has nothing to do with the use of the phrase, “transmit or transfer”, thus it is ridiculous to see Wole Olanipekun citing it as a reference in his submission. It clearly 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.” Labour Party and Peter Obi have no business with the process of collation of election results. Rather, what they are saying is that the collated results should be transmitted or transferred through the BVAS to INEC viewing portal to prove its authenticity and INEC’s transparency.Similarly, it appears indisputably that Wole Olanipekun has an inverted understanding of Paragraph 93 of INEC Regulations and Guidelines for the Conduct of Elections, 2022, titled: “Collation where INEC Hardcopy of Results Do not Exist and Use of Duplicate Hardcopies from Other Agencies”, which states:Where the INEC hardcopy of collated results from the immediate lower level of collation does not exist, the Collation Officer shall use electronically transmitted results or results from the IReV portal to continue collation. Where none of these exist, the Collation Officer shall ask for duplicate hardcopies issued by the Commission to the following bodies in the order below: (i) The Nigeria Police Force; and (ii) Agents of Political Parties.The first sentence of the above paragraph does not imply the sole use of the hardcopy of the result, but applies where people like Wole Olanipekun and their agents succeed in snatching the hardcopy from election officials. Similarly the second sentence applies where the likes of Wole Olanipekun and their agents succeeded in snatching the hardcopy of the results before being uploaded through BVAS to IReV. Under such a circumstance, the hardcopies with the Police and Political Party Agents will be used to collate the results. Take note of the word: “and”; which implies that both the results of the Police and Political Party Agents, and not one of them. Conclusively therefore, Olanipekun’s reliance on the cases of Ucha v Elechi (2012) 13 NWLR (Pt. 1317) 330 at 359; and Abubakar v Yar-Adua (2009) All FWLR (Pt. 457) 1, is not applicable under the circumstances of the present case; not only because they were based on elections conducted under manual electoral laws, but are outmoded citations in the sense that they were dealing with the manual counting of votes at the Ward level and not electronic transmission or transfer of election results.So far INEC has not proved that it was the existence of the conditions in paragraph 93 that resulted in its non-compliance with the provisions of both the Electoral Act, 2022 and INEC Regulations and Guidelines for the Conduct of Elections, 2022 with regard to the application of electronic transmission and transfer of the Presidential Election results. It is therefore trite to assert that Wole Olanipekun has not proved that he has “Substantial Evidence” to contradict the assertion of Labour Party and Peter Obi on “Issue 2” vis-à-vis their averments.It is unfortunate as much as it is disheartening that such a man as Wole Olanipekun who is unsuspectingly held in high esteem within the highest corridors of the legal profession in Nigeria would be acting in a manner reminiscent of a prodigal son of a teacher writing his father’s examination with the self-indulgent confidence that, the teacher being his father, he would definitely pass the examination no matter the poverty of his performance in the examination. This is the kind of debased, moral bankruptcy, corrupted legal professionalism and morbid intellectual mentality the likes of Wole Olanipekun are using today to erode the once jealously-guarded confidence the people of Nigeria on their judiciary, because they feel that they have likes of Justice Mary Ukaego Odili and Justice Kayode Arowoola at the highest Court of human jurisdiction in Nigeria. The question is, how can Nigeria ever progress in political, moral, and juridical terms with the likes of Oluwole Olanipekun parading themselves on the corridors of Nigerian legal system and institutions as Senior Advocates of Nigeria (SAN) and demi-gods of the legal profession?