A certain Barr Ojukwu Okoro posited that:
“Many may be confused as to what happens if a presidential candidate scores one quarter of all the votes cast in MORE THAN two thirds of all the States but failed to secure one quarter of the votes cast in the Federal Capital Territory?”
“This does not pose any difficulty. Such a candidate has met the constitutional requirements and should be declared winner by INEC without much ado. It would have been a different thing if such candidate had secured one quarter of the votes cast in less than or in two thirds of all the States but failed to secure one quarter of the votes cast in Federal Capital Territory.”
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There is actual confusion in the above quoted statement credited to the lawyer, and there cannot be any scintilla of legal truth in the entire analysis as offered by the learned counsel. As matter of fact, the reasoning and presentation thereat are more confusing than clarifying the issue at hand.
Firstly, Section 134(2)(a)(b) of the Constitution provides;
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
(a) he has the highest number of votes cast at the election;
(b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
The above conditions are cumulative, meaning that both paragraphs (a) and (b) above must be jointly satisfied for a Candidate to be deemed validly elected the President of Nigeria.
Whereas Subsection 3 of the Section 134 refers us to Subsection 4 for the remedy for any Presidential Candidate who does not satisfy Subsection 2(a)(b) above.
Subsection 4 provides:
In default of a candidate duly elected under the foregoing subsections, the Independent National Electoral Commission shall within seven (7) days of the result of the election held under the said subsections, arrange for an election between the two candidates and a candidate at such election shall be deemed elected to the office of President if –
(a) he has a majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
For adumberartion, if Tinubu or Atiku has the highest votes without having 1/4 of 2/3 of the States plus Abuja he is not deemed elected as the President. And though Peter Obi has 1/4 of 2/3 of the States including Abuja but without scoring the highest voted he is also not deemed elected as the President.
Consequently, within 21 days it is only Tinubu having the highest votes and Peter Obi who is having the third highest votes including his 1/4 votes in Abuja that will slug it out in a rerun to be conducted by INEC within . Atiku will be out of the race.
Again where neither Tinubu nor Obi fulfils the constitutional requirements of having scored the highest votes with having 1/4 of 2/3 of the States and Abuja the provision of Subsection 5 wi apply. What does Subsection 5 says?
Subsection (5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within seven days of the result of the election held under the aforesaid subsection (4), arrange for another election between the two candidates to which the subsection relates and a candidate at such election shall be deemed to have been duly elected to the office of President, if he has a majority of the votes cast at the election.
The language is clear and unambiguous, the President shall be either Tinubu or Obi with the highest number of votes in a reun rerun conducted by INEC within 7 days. The winner shall be declared whether or not either Tinubu or Obi scores 1/4 of the votes cast in Abuja.
I therefore submit with the greatest respect that the opinion of the learned colleague is not the correct position of the law in view of the aforesaid.