➥ CASE SUMMARY OF:
Atiku, PDP v. INEC, Tinubu, APC (SC/CV/935/2023, 26th day of October, 2023)
by Branham Chima.
➥ ISSUES RAISED
Introduction of new evidence;
Electronic transmission of electoral result;
➥ CASE FACT/HISTORY
A brief fact of the case giving birth to this appeal are that election into the office of President of the Federal Republic of Nigeria was conducted by the Independent National Electoral Commission (INEC) on 25th February, 2023 wherein the 2nd and 3rd Respondents emerged winners 2 with a total of 8,794,726 votes while the appellants came second with 6,984,520 votes. Sixteen others participated in the said election. The first Respondent accordingly declared the 2nd and 3rd Respondents winners of the election and declared the 2nd Respondent as the elected President of the Federal republic of Nigeria. Aggrieved by the outcome of the election, the petitioners jointly filed a petition at the court below.
This is an appeal against the judgment of the Court of Appeal (sitting as the Presidential Election Petition Court) in suit No. CA/PEPC/05/2023 and delivered on 6th September, 2023.
In the said judgment, the court below substantially sustained the respondents’ objections to the petition, the petitioner’s reply to the respondents’ respective replies, the competence of witnesses subpoenaed by the petitioners and the admissibility of several documents sought to be tendered by the appellants.
After resolving all the issues in favour of the respondents, the lower court dismissed the petition for lacking in merit. Dissatisfied with the dismissal of the petition, the appellants filed notice of appeal on 18th September, 2023.
➥ ISSUE(S) & RESOLUTION(S)
[MOTION: DISMISSED]
↪️ I. Considering the background of this case, as well as the applicable Constitutional and statutory provisions relevant to election appeals and proceedings, whether this Honourable court will grant this application i.e. the Chicago deposition in respect of Bola Tinubu’s certificate?
RESOLUTION: IN RESPONDENTS FAVOUR.
[PETITIONER HAS NOT APPLIED TO THE COURT TO AMEND THEIR PETITION
‘Nothing can be clearer than the above provision which clearly states that a petitioner shall not be permitted to 34 amend his petition after 21 days allowed by section 132(7) of the Electoral Act. The Applicants herein 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 into the proceedings. Facts and documents which were not pleaded in 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.’
180 DAYS HAS PASSED
‘The 180 days having expired, the lower court therefore no longer has jurisdiction to allow the deposition sought to be introduced into the trial of the petition. This is the law which at this stage is elementary. Consequently, since the lower court no longer has jurisdiction to entertain any such application, it follows ipso jure that this court also has no jurisdiction to allow the deposition to be used in this appeal. It is settled law that where the time for doing a thing is limited by the Constitution or statute, the court cannot extend the time.’]
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[APPEAL: DISMISSED]
↪️ I. Whether the lower court was right in refusing to hold that the failure of the 1st Respondent to electronically transmit results from polling units nationwide for the collation of results introduced by the Electoral Act, 2022 and specified in the Regulations and Guidelines for the Conduct of Elections 2022 and Manual for Election Officials 2023 does not amount to non-compliance which substantially affected the outcome of the election?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[UNAVAILABILITY OF RESULT ON THE IREV PORTAL IS NOT A GROUND FOR NULLIFYING THE ELECTION
‘I think I can confidently say, and in agreement with the Respondents that the unavailability of the election result 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 not exist at any level of collation.’
‘On the whole, it is my well considered opinion which accords with the views of the court below that the failure to transmit results to the IREV did not affect the result of the election.’]
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↪️ II. Whether the lower court was right in its interpretation of the provisions of section 134(2)(b) and section 299 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in holding that securing one quarter of the total votes cast in the Federal Capital Territory, Abuja is not a Constitutional requirement for the valid return of a candidate as duly elected president?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[A CANDIDATE NEED NOT SECURE 25% IN FCT TO BECOME PRESIDENT
‘Let me drive this matter home. The poser rendered by the learned senior counsel for the 2nd Respondent in their brief comes handy. Assuming that a candidate scores the highest number of votes in a presidential election and has 25% or one-quarter of votes in 30 out of 36 states and Abuja but failed to secure the 25% in the FCT Abuja, are we saying that he cannot be president? Is that what the legislature intended? I do not think so. The court below made it very clear when it held that “if the framers had wanted to make the scoring of one-quarter of votes cast in the Federal Capital Territory a specific requirement for the return of a Presidential candidate, they would have made that intention plain by using words that clearly separate the scoring of one-quarter of votes in the Federal Capital Territory as a distinct requirement.” The above decision of the lower court is unassailable and I have no difficulty in agreeing with it.’]
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↪️ III. Whether the lower court was not in error to have expunged the Witness Statements on oath of Appellants’ Subpoenaed Witnesses and Exhibits tendered by then on the ground that the witnesses statements on oath were not filed along with the petition and that Order 3 Rule 2 and 3 of the Federal High Court (Civil Procedure) Rules 2019 is not applicable in election matters?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE DEPOSITIONS WERE FILED AFTER THE TIME PERIOD ALLOWED
‘My noble Lords, a combined reading of section 285(5) of the Constitution of the Federal Republic of Nigeria (as amended) and paragraph 4(5) of First Schedule to the Electoral Act, 2022 shows that the time limit for the filing of written statement on oath of witnesses in election petition proceedings is 21 days from the date of declaration of results. As was pointed out by counsel for the Respondents, due to the sui generis nature of election proceedings, amendment to the petition or calling of additional witnesses will not be entertained after the statutory time limit for the filing of the petition has expired. Thus, a petitioner cannot present his case in bits otherwise the Respondents rights’ to fair hearing will be breached. This was the position of this court in Oke Vs. Momiko (No) (2014)I NWLR (Pt.1388)225.’
‘It has to be emphasized that the use of the word “shall’ in paragraph 4(1) and (5) of the 1st schedule to Electoral Act. makes it mandatory and conclusive. The question may be asked; can a court extend time circumscribed by the constitution for a party to do a thing, he could not do before the expiration of the time? The obvious answer is no. Such provisions like section 285(5) of the constitution are mandatory and any exercise of discretion by the court is without jurisdiction and therefore a nullity. In APC Vs. Marafa (2020)6 NWLR (Pt.1721)383 at 423, this court held that applications for extension of time to call additional witnesses and to file additional witnesses 83 statements after the prescribed period for presenting election petitions are not permitted because election matters are time bound and by reason of being sui generis, the procedure in handling them are stricter than ordinary civil matters. See also Ararume Vs. INEC (2019). LPELR-48397 at 33.’]
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↪️ IV. Whether the lower court was not in error in its review of the evidence of PW1, PW2, PW3, PW5, PW7 and PW22 classifying them as inadmissible hearsay evidence and in discountenancing the various exhibits tendered by the Appellants?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE WITNESSES WERE NOT PRESENT IN THE POLLING UNITS
‘From the evidence on record it is indisputable that PW1, PW2, PW3, PW5 and PW7 who were the Appellants’ state collation agents and national collation agents were not present in all the polling units which results they have disputed, which means that their evidence in respect of all the polling units other than the ones that they were present were clearly hearsay. They were most likely informed by the polling unit agents who were alive but failed to testify.’
‘The finding of the lower court in discountenancing the evidence/analysis of PW1, PW2, PW3, PW5, and PW7 same being based on hearsay, cannot be faulted. Moreso the Appellants have not presented any argument to warrant the interference of this court with the finding of the lower court.’]
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↪️ V. Whether the lower court was not in error in striking out several paragraphs of the petition and the replies of the Appellants on the ground of vagueness and lack of specificity and for being new issues, mere denials or being repetitive?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE APPELLANTS DID NOT PROVIDE SPECIFICITY OF THEIR PLEADINGS
‘They did not supply the particulars of the threshold which they perceived disqualified the 2nd Respondent from contesting the election as enumerated in section 137 of the constitution of the Federal Republic of Nigeria, 1999 (as amended). Howbeit, in their reply brief, the Appellants rolled out monstrous particulars of disqualification by reason of dual citizenship, allegation of being an ex-convict in a USA district court, having forfeited to the USA the sum of $460000 in a drug related case. Note that these particulars 94 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 essence offends the cardinal principle of fair hearing expressed in the latin maxim audi alterem partem meaning let the other side be heard as well.’
‘It follows therefore that a petition must be detailed and comprehensive on material facts depending on the reliefs sought, and not evasive or vague so as to elicit a response from the Respondents. Indeed by the provision of paragraph 16(1)(a) of the first schedule to the Electoral Act, 2022, the Act frowns at the introduction of new facts, grounds or prayers tending to amend or add to the averments of the petition in the petitioner’s reply brief. In fact, a petitioner is only required to file a reply in answer to new issues of facts which may be raised in the Respondent’s reply which were not dealt with in the petition. This means that where there are no new issues of facts raised in the Respondents reply, there would be no need for the petitioners’ reply brief. See Oni & Anor. Vs. Oyebanji & Ors. (2023) LPELR-60699 (SC).’]
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↪️ VI. Whether the lower court was not in error in its evaluation of the evidence of the Appellants witnesses on the burden of proof and clear admission against interest made by the 1st Respondent?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THE 2ND RESPONDENT HAS THE HIGHEST NUMBER OF VOTES
‘In this appeal, the issue before us is not who among the candidates won in the majority of the states of the 103 Federation, which is debatable, but who scored the highest number of votes cast at the election. I have strenuously combed through the respective briefs of the parties vis-à-vis the record of appeal, I am unable to find any alternative figure put forward by the Appellants as their rightful votes scored in the election, other than the scores presented by the 1st Respondent showing that the 2nd Respondent scored the highest number of votes. It is presumed correct. In the case of Abubakar Vs. Yar’ Adua (2008)19 NWLR (Pt.1120) at 55 this court held that: “Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption”.’]
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✓ DECISION:
‘On the whole, having resolved all the issues against the Appellants, it is my view that there is no scintila of merit in this appeal and is hereby dismissed. The Judgment of the court below delivered on the 6th of September, 2023 is hereby affirmed. I shall make no order as to costs.’
➥ FURTHER DICTA:
⦿ JURISDICTION OF THE COURT – GENERAL NATURE OF JURISDICTION
It is elementary to state that the jurisdiction of a court is the authority which a court possesses to decide matters brought before it or to take cognizance of matters presented in a formal way for its decision; In the case of Ogunmokun v Milad, Osun State (1999) 3 NWLR (pt. 594) 261 at 265, this court stated that – “Jurisdiction of the court is the basis, foundation and life wire of access to court in adjudication under Nigerian Civil Process. As courts are set up under the Constitution, Decrees, Acts, Laws and Edicts, they cloak the courts with the powers and jurisdiction of 28 adjudication. If the Constitution, Decrees, Acts, Laws and Edicts do not grant jurisdiction to a court or tribunal, the court and the parties cannot by agreement endow it with jurisdiction as no matter how well intentioned and properly conducted the proceedings, once it is incompetent, it is a nullity and an exercise in futility.” The jurisdiction of a court has further been defined as very fundamental and priceless commodity in the judicial process. That it is the fulcrum, centre pin or the main pillar upon which the validity of any decision of any court stands and around which other issues rotate. Thus, it cannot be assumed or implied, it cannot also be conferred by a party or by consent or acquiescence of parties. See SPDC Nig. Ltd. v Isaiah (2001) 5 SC (pt. 11)1, Attorney General of the Federation v Sode (1990) 1 NWLR (pt. 126) 500 at 541. — I. Okoro JSC.
⦿ ANY MATTER NOT COVERED BY ISSUE FOR DETERMINATION IS OF NO MOMENT
In Saliba v Yassin (2002) 4 NWLR (pt. 756) 1, this court stated clearly that all appeals are decided upon the issues formulated for determination. What this means is that any matter not covered by any issue for determination is of no moment. — I. Okoro JSC.
⦿ CONDITIONS TO BE SATISFIED BEFORE FRESH EVIDENCE CAN BE RECEIVED ON APPEAL
Finally My Lords, on this application, I wish to state that fresh evidence is not received as a matter of course. There are conditions which must co-exist before the court can grant this type of application as can be garnered from decided authorities of this court which include but not limited to Onwubuariri & ors v Igboasoyi & ors (2001) 3 NWLR (pt. 1234) and Adegbite v Amosun (2016) 5 NWLR (pt. 1536) 405 at 422, cases cited by the learned senior counsel for the 2nd Respondent. Simply put, the conditions are that: (1) the fresh evidence could not have been obtained with reasonable diligence at trial, (2) such evidence, if admitted would have important effect on the subject of the appeal, (3) such evidence, ex-facie, is 43 apparently capable of being believed, (4) such evidence would have influenced the judgment of the lower court in favour of the appellants, had it been available and (5) and if such evidence is admitted, further evidences from the opposing party will not be needed. — I. Okoro JSC.
⦿ WHERE IREV FAILS, IT DOES NOT STOP THE COLLATION OF THE RESULTS
This court, in Oyetola v INEC (2023) LPELR 60392 (SC) made it clear that there is a difference between a collation system and the IREV portal though both are part of the election process. Whereas the collation system is made up of the centres where results are collated at various stages of the election, the INEC Result Viewing Portal is to give the public the opportunity to view the polling unit results on the Election day. What this means is that where the IREV portal fails, it does not stop the collation of results which up to the last election was manually done. The failure or malfunctioning of the IREV deprives the public and even election administrators and monitors the opportunity of viewing the portal and comparing the result collated with the ones transmitted into the IREV. Truth must be told, the nonfunctioning of the IREV may also reduce the confidence of the voting public in the electoral process. — I. Okoro JSC.
⦿ CIVIL PROCEDURE RULES ARE SUBJECT TO THE ELECTORAL ACT
It has to be noted that rules governing civil proceedings are not the same which govern election proceedings and where the Electoral Act requires recourse to the Civil Procedure Rules, it must be made subject to the provision of the Electoral Act. — I. Okoro JSC.
⦿ LITIGANTS ARE ADVISED TO TRUST THE COURT; LITIGANTS SHOULD AVOID PRESS CONFERENCES AND MEDIA TRIAL
Finally, let me say a few words concerning issue No. 7 which is whether the lower court was right in its use of disparaging words against the Appellants in its judgment evincing hostility and bias against the Appellants, thereby violating their right to fair hearing and occasioning grave miscarriage of justice. I have read the judgment of the court below and have seen the context in which those words were used and it is my view that they were not meant to disparage the Appellants or their counsel. As Judges we are trained to be template in our use of words and we shall continue to do so. Litigants are advised to trust the courts whenever their matter is before it. It is very unbecoming these days that while a matter is pending in court, litigants engage in press conferences analyzing the case 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. — I. Okoro JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Chief Chris Uche, SAN.
⦿ FOR THE RESPONDENT(S)
A.B. Mahmoud, SAN, for 1st Respondent;
Chief Wole Olanipekun, SAN, for 2nd Respondent;
Chief Akin Olujinmi, SAN, for 3rd Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ SUPREME COURT CANNOT THROUGH SECTION 22 OF ITS ACT DO WHAT THE TRIAL CANNOT DO
One of the most recent cases decided by this court is the case of Towowomo v Ajayi (unreported) Appeal No. SC/CV/152/2022 delivered on 27/1/2023 wherein this court stated as follows: “In the circumstances of this case, this court cannot activate section 22 of the Supreme Court Act 2004 since the 180 days provided by the Constitution to determine the Appellant’s claim at the trial court has lapsed since 1st January, 2023. The originating summons was filed on 5/7/22 and expired on 1/1/23 at the Federal High Court. This appeal was taken on 2/1/23 and there is no opportunity for the contentious issue offacts in controversy in this appeal to be sent back to the trial court. See Ezenwankwo v APGA & ors (2022) LPELR 57884 (SC). The issue of the merit of the allegations of false information was not tried by the two lower courts and cannot be tried by this court pursuant to section 22 of the Supreme Court Act. This court cannot do what the trial court is no longer 32 constitutionally permitted to do by virtue of section 285 of the Constitution.”
➥ REFERENCED (OTHERS)
