It was a sweet victory for President Bola Ahmed Tinubu yesterday.
The Supreme Court affirmed his victory in the February 25 presidential election, ending eight months of litigation.
On September 6, the five justices of the Court of Appeal sitting as the Presidential Election Petition Court (PEPC) unanimously dismissed the petitions against the President.
Peoples Democratic Party (PDP) candidate Atiku Abubakar, who came second in the election and Labour Party (LP)’s Peter Obi, who came third, both claiming victory, went to the Supreme Court on appeal.
Yesterday’s verdict by the apex court ended their aspirations. It was the final bus stop.
As it was at the PEPC, the justices of the Supreme Court gave a unanimous judgment.
Chairman of the panel, Justice John Inyang-Okoro, after summing up proceedings, declared that the petitions deserved to be dismissed as unmeritorious and subsequently dismissed them.
He pronounced that President Tinubu was duly announced as the winner.
Each of the six other justices that sat on the matter announced one after the other, their concurrence with the lead judgment.
The justices are Uwani Abba-Aji, Mohammed Garba Lawal, Ibrahim Saulawa, Adamu Jauro, Tijani Abubakar and Emmanuel Agim.
President Tinubu described the verdict as a victory for democracy, adding that justice had been served.
Neither Atiku nor Obi gave a personal response to the judgment last night.
Atiku’s petition was taken first and all seven grounds were thrown out. Thereafter, it was time to address Obi’s petition.
It took just two minutes to pronounce it unmeritorious and dismissed.
Justice Okoro said Obi’s petition is mutatis mutandis with Atiku’s on six grounds. The seventh ground where it deviated is Vice President Kashim Shettima’s qualification.
The jurist said there was no point wasting time on it because the apex court had already adjudicated on the issue in the PDP vs Shettima case.
The court resolved the seven issues for determination in each of the two appeals, against the appellants – Atiku/PDP and Obi/LP – in favour of the president and his party, the All Progressives Congress (APC).
Justice Okoro first dealt with the motion in which the appellants sought to be allowed to supply fresh evidence in the prosecution of their appeal.
In determining the motion, the jurist identified one issue, which was whether the nation’s law, as of today, allows the court to accept the fresh evidence at that stage.
Relying on relevant provisions of the Electoral Act and the Constitution, Justice Okoro held that the court lacked the jurisdiction to grant the motion and admit the fresh documents because the 180 days provided in Section 285(6) of the Constitution for the hearing of election petition lapsed on September 17.
He noted that the PEPC lost its jurisdiction to consider any matter relating to the petition on September 17, which was exactly 180 days from the date the petition was filed.
The jurist added: “This application before us relates to fresh evidence obtained after the judgment of the lower court; after the 21 days for filing of an election petition and after the expiration of the 180 days for the hearing of the petition.”
He added that the reliefs sought in the application run foul of Paragraphs 14(2) and 16(1) of the First Schedule to the Electoral Act, which prevents a petitioner from amending any portion of an election petition after the expiration of the 21 days prescribed in Section 182(7) of the Electoral Act for the presentation of an election petition.
Justice Okoro said: “The applicants herein (Atiku and the PDP) have not even applied to this court to amend their petition in order to reflect the facts of forgery and Exhibits C and D sought to be admitted in the proceedings.
“Facts and documents which were not pleaded with the petition have no place in deciding the dispute between the parties. I still wonder how the appellants intend to use those documents in this appeal.”
Justice Okoro faulted the argument by the lawyer to the applicants, Chris Uche (SAN), that the 180-day limit cannot apply to the Court of Appeal sitting as an election court, because it is not referred to as a tribunal in the Constitution.
He said it was shocking for a party to make such an argument, adding: “It would have passed as a friendly joke, but not for a serious matter like this in the apex court. It is even an unnecessary joke over a constitutional provision, which was meant to cure the delay experienced in the past in election cases.”
Justice Okoro said there was nothing in Section 285(6) of the Constitution to suggest that the Court of Appeal can hear a presidential election petition without the time limitation, as argued by the lawyer to Atiku and the PDP.
He said: “The applicants knew that they have to prove the allegation of non-qualification, raised in paragraphs 16(d) and 146 of their petition against the second respondent (Tinubu) within the 180 days adjudication window provided in Section 182(a) of the Electoral Act for the determination of the petition by the lower court, which expired since the 17th of September 2023.
“The 180 days having expired, the lower court therefore, no longer has the jurisdiction to allow the deposition sought to be introduced into the trial of this petition. This is the law, which at this stage, is elementary.
“Consequently, since the lower court no longer has the jurisdiction to entertain any such application, it follows that this Supreme Court also has no jurisdiction to allow the deposition to be used in this appeal.
“Let me state it clear that the 21 days provided for the filing of election petitions, having long expired, even if the applicants had applied for an extension of time to amend their petition in order to bring in the deposition, it would not have been granted based on the provisions of the Constitution and the Electoral Act.
“I have taken time to state the position of the law on the issue to show the futility of this motion. It cannot be granted. The jurisdiction of this court is donated by the Constitution and the Electoral Act, regarding election petition appeals.
“We do not have the vires to admit this deposition. And we cannot invoke Section 22 of the Supreme Court Act since the lower court has since lost its jurisdiction.
“Moreso, there are no paragraphs in the petition to accommodate the case of forgery. Again, the appellants have distilled seven issues for determination and none relates to certificate forgery.
“One wonders what the appellants intended to do with the deposition since appeals are heard on the issues distilled for determination by the parties in this court.
“Should the deposition be admitted, it would float in the appeal as this court cannot exercise original jurisdiction even if we are to start a new case for the appellant.”
The justice further held that the request to supply additional evidence is not granted as a matter of course, but must meet a combination of some laid down conditions, which he proceeded to identify.
He said the motion by Atiku and the PDP did not meet any of the conditions required for the granting of such a motion to supply additional evidence.
Justice Okoro said: “Taking the first condition, for example, the appellants failed to convince this court on why they waited until after the court below delivered judgment in the petition and lost the 180 days donated to it by the constitution before bringing the said deposition sought to be admitted in this court.”
He noted that the presidential election was conducted on 25th of February 2023 and the Independent National Electoral Commission (INEC) declared Tinubu winner of the election on March 1, 2023, following which the appellants filed their petition at the Court of Appeal on March 21.
The judge added: “If I may ask, what attempts did the appellants make between the publication of the second respondent’s (Tinubu’s) Form EC9 and accompanying documents in June 2022, more than a year ago, to obtain the documents from the Chicago State University, which would have been used at the trial court?
“Again, what attempt did the appellants make to obtain these documents between the date of filing the petition and the conclusion of trial?
“To say the least, the above questions are critical to the quest of this court’s effort to decide whether the new evidence sought to be adduced could have been obtained by the appellant with reasonable diligence for use at the trial.”
The jurist observed that the appellants’ counsel were a bit tardy in their approach to accessing the documents they now sought to be admitted.
He declared: “From all I have stated above, it is crystal clear that the additional evidence, by way of the deposition, did not fit into the issue submitted for determination of this appeal. The application is hereby refused and dismissed.”
Main appeal
Justice Okoro then proceeded to determine the appeal on merit, beginning with issue one, which relates to whether the PEPC was not wrong when in refusing to hold that the failure of INEC to electronically transmit the results from the polling units nationwide as introduced by the Electoral Act, as specified in the Regulation and Guidelines for the Conduct of Elections and Manuel for Electoral Officers, did not amount to non-compliance, which substantially affected the outcome of the election.
The judge noted that Section 185(1) of the Electoral Act 2022 provides that an election shall not be invalidated because of non-compliance with the provision of this Act if it appears to the election tribunal or court that the election was conducted substantially in compliance with the principles of the Act and that the non-compliance did not affect substantially the results of the election.
He said by the provision in that section, a petitioner seeking to nullify an election on the ground of non-compliance, must not only provide evidence to prove the non-compliance, but he must also show to the court how the non-compliance substantially affected the outcome of the election.
Justice Okoto said: “From the evidence, as can be garnered from the record, the judgment of the court below and the arguments of both parties in this appeal, one thing is very clear, and that is: the appellants abandoned the duty imposed on them to lead credible evidence to prove non-compliance, but relied solely on the failure of the first respondent (INEC) to transmit result in real time to the IREV portal.”
He held that although the non-functioning of the IREV was capable of reducing the confidence of the voting public in the nation’s electoral process, it did not affect the validity of the results collated.
Justice Okoro agreed with the Court of Appeal’s finding that IREV is not a collation system, although it is part of the election process.
He added: “Where the IREV portal fails, it does not stop the collation of the results, which, up to the last election, was manually done.
“The failure or malfunction of the IREV deprived the public and even the election administrators and monitors the opportunity of viewing the portal and comparing it with the results collated with the one transmitted into the IREV.
“Truth must be told, the non-functioning of the IREV will also reduce the confidence of the voting public in the electoral process.”
He added that by the provision of the Electoral Act, the resort to electronic copies of election results for collation could only be made where hard copies do not exist.
Non-transmission to IREV can’t invalidate results
The jurist held that “the non-transmission of the election results on the IREV portal for whatever reason, cannot be a ground upon which an election could be nullified, particularly as it is not the case of the appellants that the hard copies of the result sheets did exist at any level of collation.”
Justice Okoro held that the appellants failed to prove their allegation of non-compliance as required by leading credible evidence.
He said they ought to have demonstrated non-compliance through either the original copies or certified true copies of the election results.
The jurist added: “On the whole, it is my well-considered opinion, which accords with the view of this court and the court below, that the failure to transmit results to IREV did not affect the results of the election. This issue is resolved against the appellants.”
FCT is not superior to other states
Justice Okoro also resolved the second issue against the appellants.
This issue related to whether the PEPC was right in its interpretation of Sections 184(2)(d) and 299 of the Constitution in holding that securing one-quarter of the total votes cast in the Federal Capital Territory (FCT) is not a constitutional requirement for the valid return of a candidate as duly elected president.
Justice Okoro held that the PEPC was right to have held that scoring 25 per cent of votes in the FCT was not a precondition for being declared a winner of the presidential election.
He agreed with the PEPC that if the framers of the Constitution had wanted it so, they would have stated it specifically.
Issue three was whether the PEPC was right in expunging the witness statements of the appellants’ subpoenaed witnesses, which were not filed along with the petition.
Election petition time-bound
He held that filing of additional evidence in election cases outside the time provided in the Electoral Act is not allowed because election matters are time-bound and must be heard and concluded within the time allowed.
He said by Paragraph 14 (2) of the 2nd Schedule to the Electoral Act, the appellants, by Section 184(1) of the Act have been foreclosed from any amendment, which was the hidden agenda promoting the petitioners’ application before the PEPC, for extension of time to call additional witnesses.
The judge held that the decision of the court below to strike out the subpoenaed witnesses’ depositions cannot be faulted because they were filed outside the time allowed under the Electoral Act, requiring that such statements must be filed along with the petition.
Issue four questioned the manner the PEPC evaluated the evidence of about six witnesses, who were state and national collation agents.
Justice Okoro held that the court below was right to have held that the evidence of the state and national collation agents amounted to hearsay evidence because they were not present at all the polling units.
He said vital evidence about what transpired at the polling unit level where actual voting takes place is given by the polling unit agents and not state or national collation agents.
The judge wondered why the appellants, who claimed to have agents in all the polling units across the country failed to call them as witnesses when required to prove their case.
He added: “It follows that the evidence of the collation agents in this instant case, who are PW1, 2, 3, 5, 6 and 7, relating to the suppression of votes, multiple thumb printing of ballot papers, entering of wrong results and disruption of voting are inadmissible hearsay and are hereby discountenanced.
“The finding of the lower court that the evidence of this class of witnesses, that they gave hearsay, cannot be faulted.
“The appellants have not proffered any evidence to warrant the court interfering with the finding of the lower court.”
Issue five was whether the lower court was not wrong in striking out several paragraphs of the petition and reply of the petitioners on grounds of vagueness, lack of specificity and the striking out of their reply to the respondents’ replies.
The judge affirmed the finding of the lower court on the issue, holding that the affected paragraphs of the petition were vague and imprecise.
He also agreed with the lower court that the reply contained fresh facts which were not pleaded, particularly concerning their allegation that President Tinubu was not qualified to contest the election.
Justice Okoro said: “It is instructive to note that in paragraph 146 of the petition, the appellants simply averred that ‘the second respondent was at the time of the election not qualified, not having the constitutional threshold.’
“They did not supply the particulars of the threshold, which they perceived disqualified the second respondent from contesting the election…
“However, in their reply, the appellants rolled out monstrous particulars of disqualification by reason of dual citizenship, allegation of being an ex-convict in the USA district court.
“These particulars referred to as further details were brought in by the appellants at the time when the respondents had lost their right of reply, which in itself, offends the cardinal principle of fair hearing…”
Appellants failed to supply alternate results
Issue six was whether the lower court was right in the evaluation of evidence on the burden of proof and admission against interest made by the first respondent (INEC).
In resolving issue six against the appellants, Justice Okoro held that the admission by INEC that the PDP won in 21 states was of no moment.
He added that in this appeal, the issue before the court is not the candidate that won in the various states, but the one who won the majority votes.
The jurist noted that no part of the petition did the appellant supply alternate scores other than the ones supplied by INEC, which showed that the APC won the election.
He noted: “In its evaluation of evidence on this issue, the court below has this to say: ‘The table referred to by the petitioners is the table of results declared by the first respondent. There is no other set of results placed before this court by the petitioners to form the basis of our finding of fact as to whether the table is wrong or not.
“‘Success or failure in an election depends on figures, which are in turn, dependent on votes garnered by each candidate.
“‘So, where the complaint in an election petition is that the candidate returned did not poll the majority of valid votes in the election to be returned as contended here by the petitioners, not only must the figures disputed be pleaded, the figures of votes that the petitioners perceived as the correct figures of the election ought to and must be pleaded.’”
Justice Okoro held that since there is no other set of scores provided by the appellants to show that they actually won the election, the figures provided by INEC are presumed correct.
“Following from the above, it is clear that the appellants, having not put forward their perceived rightful scores to rebut the results put forward by INEC, the law presumes the first respondent’s version as correct.
“It will not matter whether the appellant can prove having won most states or if the first respondent admits that much. The figures before us show that the second respondent won the highest number of votes and was accordingly returned elected.
“From where, therefore, do we manufacture evidence to support the appellants’ claim that they scored the majority of lawful votes cast at the election or that there was non-compliance with the Electoral Act which affected the validity of the election?
“Definitely, there is no way that can be done from the evidence on record and that is why this issue is resolved against the appellants.”
Reaction of PEPC justices
Issue seven was whether the lower court was right in its use of disparaging words against the appellants in its judgment and whether that did not show hostility and bias against the appellants, thereby violating their right to a fair hearing and occasioning a grave miscarriage of justice.
Justice Okoro held that the words used in the judgment were not meant to disparage the appellants or their counsel.
He said the Justices of the lower court merely expressed their minds about the conduct of the litigants and their lawyers while the case was before them.
Justice Okoro added: “It is very unbecoming these days that while a matter is pending in court, litigants engage in press conferences, analysing the cases and reaching conclusions. Based on this, some of their followers send threatening messages to judges and justices
“Matters in court are said to be sub judice and as such, parties and probably, their counsel, should refrain from media trial and media judgment. I need not say more on this. A word is enough for the wise.
“This issue has nothing positive to offer the appellants.
“On the whole, having resolved all the issues against the appellants, it is my view that there is no merit in this appeal and it is hereby dismissed.
“The judgment of the court below delivered on the 6th of September 2023 affirming the election of the second respondent as the duly elected President of the Federal Republic of Nigeria, is hereby affirmed.”
The judge refrained from making an order as to cost.
Deposition not admissible
In addition, Justice Agim noted that the deposition, which Atiku and the PDP wanted to introduce with their latest motion, was inadmissible because a reading of the deposition showed that it is not authenticated by the seal of the authority.
He explained that a deposition in another country to be used in Nigeria, should, on its face, bear the seal of authentication, such as the official seal of the court where it was deposed, or a notary public seal or signature of such a person.
The judge added that if it was made at the Nigerian embassy in such a country, the signature of the officer authorised to do so and the seal of the embassy could also serve as authentication material.
He said: “Such authentication is an assurance of the origin and authenticity of the deposition.”
Justice Agim added that what Atiku and the PDP wanted to supply as additional evidence, being a deposition from another country, cannot be used in Nigeria without authentication.
He said even if it was made in the office of the lawyer to the appellants, it could have been filed in the court that ordered its making so that it could form part of the record of the court.
Other members of the panel – Justices Uwani Abba-Aji, Mohammed Garba Lawal, Ibrahim Saulawa, Adamu Jauro, Tijani Abubakar and Emmanuel Agim – agreed with the lead judgment in dismissing the motion and the substantive appeal.
Obi/LP case dismissed:
The court also dismissed the appeal by Obi of the LP because it lacked merit.
In a unanimous judgment, the panel affirmed the judgment of the PEPC and upheld the election of President Tinubu.
In the lead judgment by Justice Okoro, which lasted less than five minutes, he held that the majority of the issues in the appeal were resolved in the earlier judgment in the appeal by Atiku and PDP.
Justice Okoro said issues 2, 3, 5, 6 and 7 in Obi’s appeal have been resolved in the Atiku/LP appeal.
The judge said the only issue left to be addressed in Obi’s appeal was the nomination of Vice President Kashim Shettima.
He said the issue about Shettima ‘s alleged double nomination was earlier resolved by the Supreme Court in its judgment delivered on May 6 in the appeal by the PDP against INEC and three others.
Justice Okoro said the issue ought not to have been brought before the Supreme Court again by the appellants who were already aware of that judgment.
