September 10, (THEWILL) – Lawyers to both the Peoples Democratic Party, PDP, and its presidential candidate, Atiku Abubakar, and his Labour Party, LP, counterpart, Peter Obi, on Friday got hold of the certified true copy of the judgement delivered last Wednesday by the Presidential Election Petition Court, PEPC, and immediately commenced study of the 798-page document.
THEWILL’s attempt to get comments from some of the lawyers on the main content of their appeal at the Supreme Court failed on the common grounds that they had to study the judgment before making any categorical statement.
There is, however, a general impression that cuts across their desire to appeal the judgement of the justices. The grounds for appeal are attractive because major legal questions are yet to be settled in the country’s legal jurisprudence as has been done in advanced countries, more so when the learned Justices of the PEPC dismissed the petitions because they lacked supportive evidence.
“It is trite that adversarial civil litigation is basically fought on pleadings,” the Justice Haruna Simon Tsammani-led five-member Appeal Court began on page 14 in the opening pages of the lengthy document. “It is the foundation of the parties’ respective cases. The general principle of law is that such pleadings must sufficiently and comprehensively set out material facts to ascertain with certainty and clarity the matters and issues in dispute between the parties. This is so because the purpose of the pleadings is to give adequate notice to the adversary of the case he is to meet and to afford him the opportunity to properly respond to such a case. Its aim is to bring to the knowledge of the opposite side and the court, all the essential facts.”
Based on this premise, other members of the tribunal, including Justice Stephen Jonah Adah, Justice Misitura Omolere Bolaji-Yusuff, Justice Boloukuromo Moses Ugo and Justice Abba Bello Mohammed, who presided over the three main petitions by the Allied Peoples Movement, APM, Abubakar and PDP, as well as Obi and LP, declared on page 751, that, “the three petitions Nos. CA/PEPC/03/2023; CA/PEPC/04/2023 and CA/PEPC/05 2023 are all devoid of merit, the three petitions are hereby dismissed.”
Accordingly, Justice Tsammani said, “I hereby affirm the declaration and return of Bola Ahmed Tinubu by the Independent Electoral Commission as the duly elected President of the Federal Republic of Nigeria. The parties in the three petitions are to bear their respective costs.”
In their respective suits, the APM had challenged the suitability of Kashim Shettima for the position of Vice President, having withdrawn his nomination for the Senate in 2023 to become Tinubu’s running mate; Abubakar Atiku and PDP, as well as Obi and LP, petitioned against Tinubu’s declaration as President by the Independent National Electoral Commission, INEC.
THEWILL investigation shows that two parties, PDP and LP, may sustain their petition, particularly on three major fronts. The first is the question of fair hearing. The second is to put the Chief Justice of the Federation on the spot, with regard to an earlier judgement he presided alongside some other judges of the apex court and thirdly, the law binding INEC to conduct polls and declare a candidate elected.
MAIN ISSUES LIKELY FOR DETERMINATION AT THE APEX COURT
FAIR HEARING:
The major issue here deals with the witnesses to give evidence during hearings. Pages 247 to 263 of the document reflects this aspect of fair hearing. Here, the counsel to the 1st Petitioner, (LP, OBI) argued that their performance was hindered by the electoral umpire’s failure to upload the presidential election results on the IReV portal as required by law.
But the 1st Respondent’s witness, (INEC), “testified that the failure to upload some of the results to the IReV real time on 25th February, 2023 was due to a technical glitch experienced on their e-transmission system,” which “was not a ploy to manipulate the election because “the glitch did not affect the result of the election”, as the Commission used other back-ups, whereupon the petitioner added, “the petitioners served subpoena duces tecum on the 1st Respondent to produce the said forms, but the officers of the Ist Respondent, a Deputy Director, Certification, Complaints and Legal Drafting, failed to bring the forms.”
The counsel urged the Court to invoke the provision of Section 167(d) of the Evidence Act against the 1st respondent and hold that the forms, if produced, would have been unfavorable to the 1st respondent. He further submitted that non-compliance with Section 73(2) of the Electoral Act has been established which has invalidated the election in those states which the 2nd Respondent (Tinubu) was declared to have won, namely Benue, Borno, Ekiti, Jigawa, Kogi, Kwara, Niger, Ogun Ondo, Oyo, Rivers and Zamfara…”
Although the Senior Counsel to the 1st Respondent (INEC) referred the Court to Section 135(!) of the Electoral Act, 2022 and submitted that the Petitioners’ complaint of non-utilisation of prescribed forms, even though proved, cannot without showing the effect on the election, be the basis to void an election that was deemed to be free and fair, the 1st Petitioner maintained that apart from the Chairman of the 1st Respondent failing to produce the said forms on Subpoena, “the Petitioners made several applications through its campaign organisation and solicitors for certified true copies of the election documents and data relating to the presidential election, but they were denied by the 1st Respondent.”
Reacting to this development, a constitutional lawyer, Napoleon Emeuso-Nwachukwu, told THEWILL on Friday that in BASHIR and ANOR v. KURDULA and ORS (2019) LPELR-48473(CA) ELECTION PETITION – DECISION OF ELECTION PETITION TRIBUNAL – “The decision of an election tribunal preventing subpoenaed witnesses from testifying on the ground of non-filing of witness depositions on oath amounts to denial of fair hearing,” citing cases to prove his point.
According to him, “In the case of YUSUF SULAIMAN LASUN vs. LEO ADEJARE AWOYEMI; ORS [2009] 16 NWLR (PT. 1168) 513 at 548 – 549(CA) the Court per OGUNBIYI, JCA (as he then was) had this to say on the subject.”
“It cannot therefore be within the contemplation of the provision of the 1st Schedule to the Electoral Act, 2010 (as amended) which is the Practice Directions in election petitions that the respondent should sign a witness statement or deposition on behalf of the petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the petitioner would frontload the statement of the respondent. By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined.,” Emeuso-Nwachukwu stated.
“In the cases of DUKE vs. AKPABUYO LOCAL GOVERNMENT [2005]19 NWLR (PT. 959) 130 AT 142-143 H-A cited with approval by SANKEY, JCA in ONI vs. FAYEMI [2008] 8 NWLR (1089) 400 AT 442 – 443 H-B, the tribunal, having refused the subpoenaed witnesses from testifying, having initially issued subpoenas for their testimony, cannot be said to have conducted the proceedings before it impartially and fairly and this Court is therefore in agreement with the learned appellants’ counsel when he said that the conduct of the tribunal by so doing eviscerated the right to fair hearing of the appellants.”
Per FREDERICK OZIAKPONO OHO, JCA (Pp 46 – 51 Paras A – B) Nwachukwu said, “In my considered opinion, the failure of the PEPC to upload an affidavit to dispute the election results nullified the results. Again, the INEC chairman was subpoenaed to testify with regards to the results on oath, he failed to come. You do not do that in law because I need to know what the man is going to say in court.”
Nwachukwu says the petitioners stand a good chance in adding this question of fair hearing to their appeal in the Supreme Court.
INEC’s CULPABILITY?
After cross-examining witnesses and taking submissions by the Ist and 2nd petitioners, (LP and PDP) that INEC was legally mandated to transmit results electronically and having failed to do so, the results it declared in support of the election of Tinubu as President were fake, the PEPC, ruled, as detailed on pages 222 to 234 of the judgement document, that, “ In my view, the Electoral Act, 2022 has used the words, “deliver”, “transfer” and “transmitted directly” interchangeable to describe how the results of the election shall be moved from one stage to another until the results are finally collated and declared.
“In all of these, the Electoral Act, 2022 has not specifically provided that the results of the election shall be electronically transmitted. It is the exercise of its powers under Section 160(1) of the 1999 Constitution and Section 148 of the Electoral Act, 2022, INEC, that is the 1st Respondent (INEC) herein, made the Regulations and Guidelines for the Conduct of Election 2022, as well as INEC Manual for Election Officials, 2023.
“In paragraphs 14(a) and 18(a) of the Regulations, the 1st Respondent prescribed the Bimodal Voter Accreditation System, BVAS, as the technological device for the purpose of accreditation and verification of voters in the 2023 general elections.”
The PEPC returned to this matter again as shown on page 614 of the judgement document, where it answered the petition by 2nd petitioner, PDP and Abubakar, thus, “Primarily, the law is settled that the results declared by INEC (1ST Respondent) is an election enjoys a presumption of regularity. In other words, they are prima facie correct. See Section 168(1) of the Evidence Act 2011, recently applied to the Supreme Court in ATUMA V. APC & ORS (2023) LPELR-60352 (SC) where Jauro, JSC held at PP 40-41 as follows:
“By virtue of Section 168(1) of the Evidence Act, 2011, the presumption of regularity inures in favour of judicial or official acts, including those carried out by INEC. The exact words of the submission are thus: “When any judicial act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
In the final analysis, PEPC agreed that “there is a statutory provision that provides voting and transmission of votes. But that is at the discretion of INEC.” But is this really so? This is still contentious.
A closer scrutiny of the relevant sections in the Electoral Act, 2022 shows that the opposition parties going on appeal have good grounds to stand on. Two crucial sections deal with the point at issue, namely the mandatory use of BVAS and electronic transmission of election results.
In Section 47 (2), the Electoral Act, 2022, states thus; “(2) To vote, the presiding officer shall use a smart card reader or any other TECHNOLOGICAL DEVICE that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribed by the Commission.”
Again, in section 64 (1-4), the Act states thus; “1. Electronic Transmission of election results directly from the polling units is MANDATORY; 2. Collation of results manually (the lower level of collation) is still allowed; 3. Where there is a conflict between results transmitted electronically direct from the polling units and results as collated manually, the results, as transmitted electronically direct from the polling units shall prevail; 4. In order to determine whether such a conflict exists, there must have been direct electronic transmission from the polling units, before the manual transmission. Both must co-exist.”
Reacting to the part of the judgement on Friday night, a Senior Advocate of Nigeria, Adeyinka Olumide-Fusika, said that though a previous court had ruled on the issue before, the PEPC cannot be blamed in the judgement on the presidential election petitions but INEC.
He said, “When an umpire makes a rule, it behoves the umpire to comply and follow the rule. That is where I think the problem lies. You cannot make a rule and expect others to comply with why you consider yourself exempt. So, INEC should share part of the blame. Like I said before, a court had made a pronouncement on it before, maybe the Supreme Court has to make a final decision.”
In fact, in a video that has gone viral on social media, former INEC National Commissioner for Information, Voter Education, Festus Okoye, rigorously defended the Commission’s commitment to fulfilling the above quoted sections of the Act.
He said, shortly before the conduct of the 2023 general election, “The use of BVAS is a mandatory provision of the law without an option. The Commission does not have a DISCRETION on whether to use BVAS or not. The law says we shall and must use BVAS and the Commission is committed to using BVAS because we have spent so much time, so much energy and so many resources to put the BVAS together. We canvassed the inclusion of the BVAS and the electronic transmission of results in the Electoral Act. Therefore, we have a responsibility to keep faith with our innovation for the conduct of a free and fair election driven by technology.”
Indeed, the PEPC dismissed the argument of the counsel to the 3rd respondent against the admission of video clips of Mr Okoye, INEC Chairman, Professor Mahmood Yakubu and the EU Observer team, on the grounds that they did not comply with Section 84 of the Evidence Act.
As recorded on page 598 of the document, Justice Tsammani ruled, “I am, however, of the opinion that this contention is misconceived… of the certification of the authentication of the said video clips made by P.W, 19, Dr Ter… downloaded to his laptop and subsequently to his flash drives before bringing them to court. For the same reason that Dr Ter is not in court to answer questions on the said clips and so his evidence on them is hearsay is non -sequitur.”
PRESIDENT BOLA TINUBU’S ALLEGED DRUG RECORD IN THE USA AS BASIS FOR QUALIFICATION TO CONTEST
According to the PEPC, as recorded on pages 179 to 186, in the judgement document, “From the legal definitions and judicial authorities, it is clear that the “sentence of imprisonment or fine for any offence involving dishonesty or fraud”, envisaged in Section 137(1) (d) in the Constitution is one imposed upon a criminal trial and conviction.
“In that case, the Petitioners have failed to show evidence that the 2nd Respondent, (Tinubu) was indicted, arraigned, tried and convicted and was sentenced to any term of imprisonment or fine for any particular offences.”
It said that the American Court relied on Section 981 of the American Money Laundering Law, which is civil and not Section 982, which is criminal and which the petitioners stated in their petition. “The Petitioners have evidently failed to establish their allegation that the 2nd Respondent is disqualified from contesting the presidential election under Section 137(1) (d) of the Constitution because he was fined the sum of $460,000.00 by a US District Court, Northern District of Illinois. As shown above the forfeiture in Exhibit PA5 on which the Petitioners have relied does not qualify as a sentence of fine for an offence involving dishonesty or fraud with the contemplation of Section 137(1) (d) of the 1999 Constitution.”
FORFEITURE is the key word that may resonate in the appeal at the Supreme Court just for one reason.
Chief Justice of Nigeria, Olukayode Ariwoola, had had cause to give clarity to that word not too long ago as one of the judges at the apex court. That was on April 18, 2005 when one of the sons of the late Military Head of State, General Sani Abacha, challenged an appeal court judgement delivered that year.
The Federal Government, through the Attorney-General of the Federation (AGF), had charged Mohammed Abacha to court for the offences of conspiracy, receiving of stolen property, dishonesty and concealing stolen money, all pursuant to sections 97(i), 317 and 319 of the Penal Code.
After the High Court and the Appeal Court found Abacha guilty, Justices Olukayode Ariwoola, Walter Onnoghen, Muhammad Muntaka-Coomassie, John Afolabi Fabiyi, Suleiman Galadima, Nwali Ngwuta and Kudirat Kekere-Ekun of the apex court had the final word on the matter. They disagreed with Abacha’s argument that he forfeited the sums in compliance with the decree and not as a punishment for committing a crime.
Ariwoola, who gave the ruling, had noted, particularly in reference to the word FORFEITURE, “The whole purpose of this ad hominem legislation, as clearly stated in Section 1 of the Decree, was to recover from the persons named therein properties and monies acquired corruptly and illegally by them.
“Bearing in mind that in interpreting a statute, the court must avoid absurdity. It is necessary to juxtapose the term ‘forfeiture’ with ‘indemnity’ to ascertain the intention of the lawmaker. Black’s Law Dictionary, 8th edition at page 677 defines ‘forfeiture’ thus:
1. The divestiture of property without compensation.
2. The loss of a right, privilege or property because of a crime, breach of obligation or neglect of duty.” It goes on to say ‘title is instantaneously transferred to another, such as government, a corporation or a private person’. Therefore, FORFEITURE connotes punishment for a crime committed and its effect is instantaneous. ‘Indemnity’ is defined at page 784 (supra) as
3. A duty to make good any loss, damage or liability incurred by another.
4. The right of an injured party to claim reimbursement for its loss, damage or liability from a person who has such a duty…’ ‘Indemnity’ and ‘forfeiture’ are clearly diametrically opposed to one another. A person who has forfeited property on the basis of a crime cannot be entitled to indemnity. Forfeiture is a form of punishment. There is no indemnity in our criminal procedure.”
The question is would Justice Ariwoola, faced with his earlier ruling, interpret the word FORFEITURE differently?
A Senior Lecturer in Law at the University of Derby, England, United Kingdom, Dr Obiajunwa Ama, does not think so. He said the learned Justices of the PEPC were correct in their decision on this matter.
“If President Tinubu was convicted of a criminal offence in the United States in the 20th and 21st Century or even further back, there will be a trace and record of the same in the United States,” he said at the weekend, in a statement made available to THEWILL. “If the point above is not persuasive enough, then it is important to state that foreign judgements are not automatically recognised nor enforced in other jurisdictions. The concept of sovereignty of states (Countries), is such that there are procedures prescribed by domestic laws on the recognition of foreign judgements. In fact, some countries do not even recognise nor enforce foreign laws in their jurisdiction. Thus, it is important for individuals to be knowledgeable on the recognition of foreign laws in Nigeria, and its probative value to cases in dispute. “
ON STATUS OF ABUJA AND 25% REQUIREMENT TO BECOME PRESIDENT
Again, Obayuwana opines the PEPC was spot on, regarding their ruling on the status of Abuja with regards to election.
“An individual does not even need to be a lawyer to know that Nigerians that are resident in FCT are not superior to Nigerians that live in other parts of the country, ” Obayuwana argued. ”Any argument that a presidential candidate must score 25% of votes in FCT to be declared winner of elections, does automatically confer special status of citizenship on Nigerians that live there.
”The concept of equality of citizenship is a fundamental ingredient of statehood. It is the concept upon which all other citizenship rights and obligations, such as payment of taxes, are predicated. In fact, it is also the same principle that applies to equality of states.
From the foregoing, it is pretty sure that between the next 21 days when the opposition parties are constitutionally bound to file their appeal and 60 days later on November 5, when the Supreme Court is expected to deliver judgement, all eyes will be on Justices of the apex court for the final arbitration of the unsettled cases thrown up by the PEPC judgement.
Amos Esele is the Acting Editor of THEWILL Newspaper. He has over two decades of experience on the job.
