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An Examination of the Power of INEC to Declare an Election Inconclusive and the Jurisdiction of Election Petition Tribunal.

FALEKE v. I.N.E.C (2016) 18 NWLR PT. 1543; AT 61- AN EXAMINATION OF THE POWER OF INEC TO DECLARE AN ELECTON INCONCLUSIVE AND ELECTION PETITION TRIBUNAL’S JURISDICTION

By

Oladele Kehinde Emmanuel

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Constitution of Justices of the Supreme Court of Nigeria in the Case

NWALI SYLVESTER NGWUTA, J.S.C. (Presided).

OLUKAYODE ARIWOOLA, J.S.C.

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MUSA DATTIJO MUHAMMAD, J.S.C.

CLARA BATA OGUNBIYI, J.S.C.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Read the Leading Judgment)

JOHN INYANG OKORO, J.S.C.

AMIRU SANUSI, J.S.C.

 

Decided on; Friday, 30th September 2016

 

Parties in full;

HON. JAMES ABIODUN FALEKE (Appellant)

                       V.

1.INDEPENDENT NATIONAL ELECTORALCOMMISSION (INEC) (Respondents)

2.YAHAYA BELLO

 

 Fact of the Case

 

During the primary election held by the All-Progressive Congress (APC) in November 2015, Prince Abubakar Audu emerged as the winner, securing the party’s candidacy for the Kogi State Governorship election. Yahaya Bello, who came in second, was the runner-up. Following his victory, Audu selected Abiodun Faleke as his running mate, and the duo’s names were duly submitted to the Independent National Electoral Commission (INEC) as the APC’s official candidates for the upcoming Governorship election.

The election took place on November 21, 2015, and Audu/Faleke ticket was leading in the results. However, due to electoral malpractices in 91 polling units, INEC declared the results inconclusive, citing the number of canceled votes exceeding the margin between the APC and the Peoples Democratic Party (PDP).

Unfortunately, Prince Abubakar Audu passed away before the supplementary election could be conducted. INEC requested the APC to substitute the deceased candidate, and Yahaya Bello was chosen as the new candidate. The supplementary election took place on December 5, 2015, and Bello emerged as the winner.

Before the supplementary election took place, Faleke initiated legal action to seek clarification of the constitution and contest INEC’s decision to declare the initial election inconclusive. However, the lawsuit was dismissed since it was deemed that only an Election Tribunal had the authority to handle such matters.

Subsequently, Faleke submitted a petition to the Kogi State Governorship and State Houses of Assembly Election Tribunal, asserting that he should have been declared the winner based on constitutional grounds. While the respondents raised preliminary objections, the tribunal proceeded to examine the petition’s merits. Ultimately, the tribunal concluded that the petition lacked merit and subsequently dismissed it.

Expressing dissatisfaction with the ruling, the appellant proceeded to file an appeal with the Court of Appeal. On August 4, 2016, the Court of Appeal issued a well-considered judgment, ultimately dismissing the appeal. Despite this outcome, the appellant remained dissatisfied and subsequently lodged a further appeal with the Supreme Court.

In determining the appeal, the Supreme Court considered the provisions of;

 SECTIONS 17A (1) & AND 181(1) & 1999CONSTITUTION, 31(1), 32(2) AND 33 OF THE ELECTORAL ACT, 2010 (AS AMENDED) AND CHAPTER 3 PARAGRAPH 3.11, STEP 14 OF THE MANUAL FOR ELECTION OFFICIALS (UPDATED VERSION).

The provisions provide as inter alia:

Sections 179(1) & and 181(1) & 1999 Constitution

“179(1) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election –

he has a majority of YES votes over No votes

(a)cast at the election; and he has not less than one-quarter of the votes cast at the election in each of at least two-thirds

(b)of all the local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations, A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected

 (2) were, there being two or more candidates –

he has the highest number of votes cast at the

(a)election; and

he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local

(b)government areas in the State.

 

181 (1) If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate anew Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.

(2) Where the persons duly elected as Governor and Deputy Governor of a State die or are for any reason unable to assume office before the inauguration of the House of Assembly, the Independent National Electoral Commission shall immediately conduct an election for a Governor and Deputy Governor of the State.

 Section 31(1), 32(2) and 33 of the Electoral Act, 2010 (as amended) and Chapter 3 paragraph 3.11, step 14 of the Manual for Election Officials (updated version) which provide thus:

“31(1) Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms, the candidates the party proposes to sponsor at the elections …”

“32(2) No person shall nominate more than one person for an election to the same office.”

“33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of this Act, except in the case of death or withdrawal by the candidate.”

 

“3.11: Final Collation and Declaration of Governorship Election Results at State Level:

The State Collation/Returning Officer for the Governorship shall:

Step 14: “Where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the polling unit(s) where elections were cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit(s) and the results incorporated into a new FormEC8D and subsequently recorded into a new formEC8E for Declaration and Return.”

 

DECISIONS OF THE COURT BASED ON HIERARCHY

The Trial Court:

The suit was struck out upon successful objections raised by the respondents that by virtue of section 285 of the Constitution, only an Election Tribunal had the jurisdiction to look into his complaints.

 

Tribunal Decision:

The National and State House of Assembly Election Tribunal Kogi State delivered judgement dismissing the appellant election petition on Monday, 6th June 2016.

 

Court of Appeal Decision:

The judgement was delivered on the 4th of August, 2016 in the Court of Appeal, Abuja. Where the court affirmed the decision of the Kogi State Governorship Election Tribunal which dismissed the appellant’s election petition.

 

Supreme court Decision:

In a Unanimous decision, dismissed the appeal.

OUTLINING THE HOLDINGS OF THE SUPREME COURT IN THE LEADING JUDGEMENT READ BY KEKERE-EKUN, J.S.C.

 

1.0 Establishment and powers of Independent National Electoral Commission (INEC)

Section 153(1)(f) of the 1999 Constitution stipulates the establishment of the Independent National Electoral Commission (INEC), which, as outlined in paragraph 15 of Part 1 of the Third Schedule, is empowered to:

  • organize, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State and the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; and
  • to carry out such other functions as be conferred upon it by an Act of the National Assembly.

 

2.0 Establishment of Independent National Electoral Commission (INEC) and power of to make rules for the purpose of regulating its procedure

The Independent National Electoral Commission (INEC) is established by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), as stated in section 153(4). Furthermore, section 160 of the Constitution grants the entities created under section 153 the authority to establish regulations governing the process of carrying out their responsibilities. The reproduction of section160(1) states that

“subject to subsection of the section, any of the bodies may, with the approval of the President, by rules or otherwise regulate its own procedure or confer powers and impose duties on any officer or authority for the purpose of discharging its functions; provided that in the case of the Independent National Electoral Commission, its powers to make its own rules or otherwise regulate its own procedure shall not be subject to the approval or control of the President.

Particular and distinct acknowledgment is accorded to the Independent National Electoral Commission (INEC). Additionally, as a consequence of the aforementioned provision, the Manuals for election officials 2015 (updated version) published by INEC are not simply guidelines or instructions, but rather, they hold the status of subordinate legislations with the authority of law. These manuals derive their legitimacy from both the Constitution and the Electoral Act.

 

3.0 Powers of Independent National Electoral Commission (INEC) to regulate its own procedure

In accordance with section 160(1) of the 1999 Constitution, INEC is empowered to establish rules or take other necessary measures to govern its own processes, as well as to delegate authority and assign responsibilities to any official or entity in order to effectively fulfill its functions.

 

 4.0 Status of INEC’s Manual for Electoral Officers in the proper conduct of elections

INEC, in accordance with section 160(1) of the 1999 Constitution, possesses the constitutional authority to oversee its own procedure and delegate powers and responsibilities to its officers in order to carry out its duties. The Electoral Act of 2010, as amended, also includes similar provisions in sections 73 and 153 to ensure the effective execution of INEC’s responsibilities. Section 73 grants the Commission the power to publish guidelines in the Gazette, which outline the step-by-step process of recording the poll in the electoral forms as required. Section 153 authorizes the Commission to issue regulations, guidelines, or manuals to enforce the provisions of the Electoral Act and facilitate its administration.

The aforementioned provisions provide legal support for the Manual as a subordinate legislation, and when applicable, its provisions must be utilized, implemented, and upheld. Referring to the manual in this context does not constitute a blatant disregard for the supremacy of the Constitutional provisions outlined in section 179(2) of the Constitution. (C.p.c. v. INEC (2011) 18NWLR (Pt. 1279) 493 was cited as a reference.)

4.1.0 Power of INEC to hold supplementary election

Under section 160(1) of the Constitution and sections 73 and 153 of the Electoral Act, 2010 (as amended), as well as its Manual for Electoral Officers, the Independent National Electoral Commission (INEC) possesses the authority to conduct a supplementary election. (C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 493 was cited as a reference.)

 4.1.1 Function and status of Electoral Act, 2010 (as amended) And Effect of INEC Manual for Election Officials

The Electoral Act, 2010 (as amended), is a legislation enacted by the National Assembly that comprehensively outlines the procedures for conducting elections by INEC, starting from the pre-election phase to its conclusion. Additionally, it provides guidelines for addressing disputes that may arise from the electoral process. The final stage of the election is the declaration of a winner, which occurs after the counting of all votes.

In accordance with sections 73 and 153 of the Electoral Act 2010 (as amended), the Independent National Electoral Commission (INEC) is empowered to issue and publish guidelines for elections in the Gazette. These guidelines cover various aspects, including the systematic recording of the poll in the prescribed electoral forms, starting from the polling units and extending to the final collation center for the respective ward or constituency where the election result is announced. Moreover, INEC is authorized, within the provisions of the Act, to issue regulations, guidelines, or manuals to effectively implement the provisions of the Act and ensure its proper administration.

4.1.2 Extent and scope of jurisdiction of Governorship Election Tribunal

Section 285(2) of the 1999 Constitution explicitly outlines the jurisdiction of Election Tribunals, specifically stating that a Governorship Election Tribunal holds original jurisdiction, excluding any other court or tribunal, to adjudicate petitions regarding the valid election of individuals to the positions of Governor or Deputy Governor of a State. Therefore, it is the relevant statute that establishes the jurisdiction of the Tribunal, and not any declaration made by a court of equivalent jurisdiction.

The Court of Appeal’s decision in this case affirmed that the Tribunal’s jurisdiction, as specified in section 285(2) of the Constitution, was restricted to resolving petitions concerning the validity of a person’s election as Governor of a State. Consequently, the appellant’s rights were not violated when the trial court refrained from addressing the issue of estoppel, as it fell outside the court’s jurisdiction.

4.1.3 Jurisdiction of Election Tribunal over issue of qualification to contest election into office of Governor of a State

The Election Tribunal holds the authority to determine whether a candidate was eligible to participate in an election based on their qualifications at the time. To ascertain if a person meets the requirements or disqualifications specified in section 138(1)(a) of the Electoral Act, reference should be made to sections 177 and 182 of the Constitution.

 

5.0 Venue to challenge result of election and Political party’s Right to Choose Candidate to Contest an Election

According to section 133(1) of the Electoral Act, any complaint regarding an unfair election or incorrect declaration of results can only be addressed in a competent court or tribunal, in accordance with the provisions of the Constitution or the Act. The selection of a candidate to participate in an election falls under the authority and jurisdiction of a political party.

Furthermore, the choice made by a political party regarding its candidate cannot be legally challenged. It is considered non-justiciable as long as the party follows its guidelines, as referenced in the cases Amaechi v. I.N.E.C. (2008) 5 NWLR(Pt.1080) 227; P.D.P. v. Sylva (2012) 13 NWLR (Pt. 1316) 85; Dalhatu v. Turaki (2003) 15 NWLR(Pt.843) 310.

 5.1.0 Power of political party over nomination and sponsorship of a candidate in an election and jurisdiction of court with respect thereto

The internal affairs of a political party encompass the nomination and sponsorship of a candidate during an election, making it non-justiciable. However, there are specific instances outlined in section 87(9) of the Electoral Act where the matter can be brought before the Federal High Court, the High Court of a State, or the High Court of the Federal Capital Territory. This occurs when a co-aspirant claims that the political party’s guidelines or the provisions of the Electoral Act were not followed. In such cases, these courts possess the appropriate jurisdiction to address the issue.

They are pre-election issues which are outside the purview of an Election Tribunal because the nomination and sponsorship of a candidate by his political party must take place before an election can be held. Similarly, where, a candidate died before the election was concluded, the nomination and sponsorship of a suitable candidate to take his place must also occur before the election can proceed. [Ukachukwu v. P.D.P. (2014) 17 NWLR (Pt.1435) 134; P.D.P. v. Onwe (2011) 4 NWLR (Pt.1230)166; Amaechi v. I.N.E.C. (2007) 18 NWLR (Pt. 1065)170 referred to; Ohakim v. Agbaso (2010) 14 NWLR (Pt. 1226) 172 referred to.]

5.1.1 Whether a member of the same party can challenge the winner of an election

Section 138(1)(c) of the Electoral Act does not contemplate a scenario where a party member would contest the victory of a fellow party member in an election. The Electoral Act, as outlined in Sections 31(1) and 32(2), clearly intends for election petitions to revolve around disputes between candidates belonging to different political parties. This explains the requirement that where an election is questioned on the ground that the respondent was not duly elected by majority of lawful votes cast under section 138(1) of the Act, the petitioner is required to plead two sets of figures: the scores announced by INEC and the scores he considers to be correct.

Additionally, where appropriate, he is expected to call witnesses to testify as to them is application of the votes. The appellant in the case under analysis only based his claim of scoring a majority of the votes cast at the election on the figure of 240,867 votes announced by INEC on 21/11/2015at a stage when the election was inconclusive. He did not plead two sets of results. [Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416; Nwobodo v. Onoh (1984) 1 SCNLR 1; Gwede v. INEC (2014) 18 NWLR(Pt.1438) 56 referred to.]

5.1.2 When a political party can change its candidate, whose name has been submitted to INEC

A political party can change its candidate whose name has been submitted to INEC by the dint of Section 33 of the Electoral Act which clearly provides an exception to the provisions of section 31 of the Act in the case of death or withdrawal by the candidate.

5.1.3 Whether votes cast for a deceased candidate is transferable to another candidate of the same party

The All-Progressives Congress, as per the provisions of section 221 of the Constitution, had the legal right to receive the votes originally cast for a deceased candidate. Therefore, these votes were transferable to another candidate from the same party. As a result, the nominated and sponsored candidate of the All-Progressives Congress was entitled to benefit from those votes after the completion of the election process on December 5, 2015.

Consequently, upon the declaration of the Kogi State Governorship election as inconclusive and no return made; also, with the death of Prince Abubakar Audu, being the All-Progressives Congress Governorship candidate for Kogi State, the outcome did not render the 240,867 votes cast in favor of the party wasted votes, or make the votes to accrue to the appellant and thus make him the Governor-elect in the absence of any return made in respect of the election held on 21st November, 2015. For all intents and purposes, the APC, also by extension the 2nd respondent, both had an unimpeded legal interest in the said 240,867 votes. [ Agbaje v. I.N.E.C. (2016) 4 NWLR (Pt. 1501) 157; Agbakoba v. I.N.E.C. (2008) 18 NWLR (Pt. 1119)489; Gwede v. I.N.E.C. (2014) 18 NWLR (Pt. 1438)56 referred to.]

 

6.0 Effect where election is inconclusive

The applicability of sections 179(1) and 181(2) of the 1999 Constitution is limited to cases where election results have been declared and a conclusive outcome has been determined. These provisions do not apply to the current situation where there was no conclusive election, declaration of results, or the announcement of a winner by INEC.

6.1.0 The supremacy of the Constitution as relates to Governorship Election

From section 1(2) of the Constitution; no one can become the Governor of a State in Nigeria without complying with the relevant Constitutional provisions. Section 177(c) of the 1999 Constitution avails that; a person seeking to contest an election into the office of Governor of a State must be a member of a political party and must be sponsored by that party. Moreover, he must have participated in the party’s primary elections by virtue of section 87(1) of the Electoral Act.

In the circumstance of this case, the evidence tendered to the court was that the 2nd respondent participated in the primary election conducted by the All-Progressive Congress (APC) and came second behind Prince Audu (the deceased). The conduct of the said primary was not in dispute, neither was it disputed that the appellant did not participate in his party’s primary. [C.P.C. v. Ombugadu (2013) 18 NWLR (Pt.1385) 66 referred to.] (P. 126, paras. A-C)

6.1.1 When a person deemed elected Governor of a State

In order to be validly elected as Governor of a State, according to section 179(2) of the 1999 Constitution, a person must receive the highest number of votes cast in the election and also obtain at least one-quarter of all the votes cast in a minimum of two-thirds of the local government areas within that State.

The responsibility of determining whether the requirements of section 179(2) of the Constitution have been met during an election lies solely with the Independent National Electoral Commission (INEC), as outlined in section 15(a), paragraph F of Part I, Third Schedule to the 1999 Constitution. It is crucial for INEC to have this authority to prevent a state of disorder, as multiple participants in the election may each claim to be “deemed” elected if such determination is left unchecked.

Additionally, all electoral units within the State must complete their voting processes before any candidate can be deemed to have been elected. Even if one candidate fulfills the constitutional requirement midway through the process, they cannot be deemed duly elected because unforeseen circumstances may arise after elections have been conducted in the remaining voting units. A formal declaration or return by the electoral body is necessary before any individual can legitimately claim to have been duly elected, as stated in the case of Ohakim v. Agbaso (2010) 19 NWLR (Pt.1226) 172.

6.1.2 Status of Deputy Governorship candidate upon demise of Governorship candidate before conclusion of election

Per KEKERE-EKUN, JSC at pages 126-127, paras.C-B succinctly expatiated:

“At pages 1613 – 14 of the record, the lower court found as follows:

“…. with the death of Prince Audu before the election could be completed and a due return made therein, the candidates’ status radically changed. Prince Audu’s right to contest the election as the Governorship candidate of the APC naturally expired upon his demise and by the same token, the appellant’s legal right as the Deputy Governorship candidate of the deceased also followed suit. He was the nominee of the deceased and as a result of the inconclusive election coupled with the sudden and unexpected exit of Prince Audu, he acquired no legal rights under section181(1) of the Constitution. That being the case, by a combined reading of section221 of the Constitution and section 137(1) of the Electoral Act, the law recognizes that the APC has a legal right/interest in the votes cast and as a juristic person, it became “the last man standing” as it were. It therefore had a right to substitute the deceased Governorship candidate by virtue of section 33 of the Electoral Act. … This it subsequently did upon the express invitation to do so by the 1st respondent in its Public Notice, exhibits P27 and R5.” I am of the view that the above analysis represents the correct position of the law. No doubt the situation would have been different if the election conducted on 21/11/2015 was conclusive and the joint ticket of Prince Audu and the appellant declared and returned as the winner of the election. The provision of section 181(1) of the Constitution would have become applicable. However, in the circumstances of this case, with the election held on 21/11/2015 being declared inconclusive and the Governorship candidate having died, the appellant could not metamorphose into the Governorship candidate. His status remained that of a Deputy Governorship candidate to a deceased Governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office.”

6.1.3 When Deputy Governorship candidate entitled to the benefit under section 181 of the 1999 Constitution

Section 181 of the 1999 Constitution is explicit and leaves no room for confusion. It states that for a Deputy Governorship candidate to qualify for the benefits outlined in the section, they must have been duly elected and officially declared as such in the Governorship election. In the specific case being discussed, there was no such official declaration or return made regarding the Kogi State Governorship election that took place on November 21, 2015, as the election was declared inconclusive. Therefore, both the appellant and the late Prince Audu were not officially elected. As a result, the appellant cannot claim the benefits under section 181 of the Constitution as they have asserted.

 6.1.4 Meaning of “Return” under the Electoral Act 2010(as amended)

Section 156 of the Electoral Act provides a definition for the term “Return,” stating that it is the official declaration made by a Returning Officer in an election conducted under the Act, proclaiming a candidate as the winner of that particular election. Sections 179(2) and 181 of the Act are enacted in order to facilitate this process of return. Additionally, section 68(c) of the Electoral Act, 2010 (as amended) establishes that the decision made by a Returning Officer concerning the declaration of candidates’ scores and the return of a candidate is considered final, except in cases where it is subject to review by a Tribunal or court during an election petition proceeding as outlined in the Act. The provision specifically refers to the “declaration of scores of candidates,” which aligns with the definition of “return” provided in section 156. Thus, it is the declaration or return itself that becomes the focus of an election petition.

In order to invoke sections 179(2) and 181(1) of the Constitution, it is necessary to have a declaration or return. These sections are not automatically enforceable. The requirement for a declaration or return of a candidate as the election winner must be fulfilled for the sections to apply. Failing to adhere to this requirement would create a situation where anyone could claim themselves as the winner of an election, resulting in chaos. Additionally, the voters have the right to have the election results formally declared by a neutral authority.

6.1.5 Procedure for declaration of election result and Grounds of Challenging Election Results

The result of an election, whether it is for the President, Governor, or any other elective office, is determined by counting the votes cast for each candidate. As stated in section 69 of the 1999 Constitution, the candidate with the highest number of votes is declared elected by the appropriate Returning Officer, except for specific provisions mentioned in sections 133, 134, and 179 of the Constitution. If someone wishes to challenge the result, Section 138 of the Electoral Act outlines the grounds for doing so.

These grounds include: the person whose election is questioned not being qualified to contest the election at the time, the election being invalid due to corrupt practices or non-compliance with the Electoral Act, the respondent not being duly elected by the majority of lawful votes cast, or the petitioner or their candidate being validly nominated but unlawfully excluded from the election. In this particular case, the appellant bases their petition on the aforementioned subsections.

 

Conclusion

The case of Faleke v. I.N.E.C (2016) 18 NWLR PT. 1543; AT 61, which is currently under examination, has addressed two crucial aspects regarding elections in Nigeria: the authority of INEC to declare an election inconclusive and the jurisdiction of the Election Petition Tribunal. In this case, the Supreme Court recognized INEC’s discretionary power to declare an election inconclusive in exceptional situations, emphasizing the importance of preserving the integrity of the electoral system.

Additionally, it clarified that the Election Petition Tribunal possesses the authority to resolve disputes arising from elections, including challenges to the declaration of an election as inconclusive. Overall, this case holds immense significance in Nigeria’s electoral jurisprudence as it ensures the fair and timely resolution of election-related disputes and provides guidance for future cases, thus upholding democratic processes in the country.

 

About the Author

Kehinde Emmanuel Oladele possesses multiple roles and talents. He is an author, a dynamic undergraduate law student, and a skilled writer with proficient research abilities. He has a notable collection of publications both nationally and internationally, demonstrating his dedication to making substantial contributions to jurisprudence as a whole. Furthermore, he is an active member of the Academic Legal Writers and Authors Association of Nigeria and currently serves as an Author/Editor in the LIFIN Editorial Board, an academic initiative established in Nigeria. His authored book was titled “DEMYSTIFYING NIGERIA LAWS ON CONTEMPORARY SOCIO LEGAL ISSUES,” published by Eliva Press. For those interested, the book can be accessed through the provided link: https://www.elivapress.com/en/book/book-7628589326/.

He can be reached him via email at [email protected] or through the phone number +234 7033702316.

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