➥ CASE SUMMARY OF:
Peter Obi, Labour Party v. INEC, Tinubu, Shettima, APC (SC/CV/937/2023, Thursday the 26th day of October 2023)
by Branham Chima.
➥ ISSUES RAISED
Section 134(2) CFRN;
➥ CASE FACT/HISTORY
The Independent National Electoral Commission ( INEC), the 1st Respondent herein, conducted the presidential and National Assembly Elections in Nigeria on 25/2/2023. The 1st Appellant, who was sponsored by the 2nd Appellant as its Presidential candidate, as well as the 2nd and 3rd Respondents, who were sponsored by the 4th Respondent as its Presidential and Vice-Presidential candidates, contested the Presidential election, along with other candidates. At the end of the election, the 1st Respondent returned the 2nd Respondent as the duly elected President of the Federal Republic of Nigeria, with 8,794,726 votes. The 1st Appellant came third with 6,101,533 votes, behind Abubakar Atiku of the People’s Democratic Party (PDP), who came second with 6,984,520 votes. Dissatisfied with the result of the election, the Appellants filed this Petition on the 20th of March, 2023, challenging the outcome of the election.
The Appellants in proving their petition called 13 witnesses and tendered over 19,000 documents from 30/5/2023 when the hearing commenced to 5/7/2023 when the Respondents closed their case. After adoption of final written addresses of parties, the lower court delivered its judgment on 6/9/2023, dismissing the Appellants petition. Miffed with the judgment, the Appellants appealed before this court vide Notice of Appeal.
➥ ISSUE(S) & RESOLUTION(S)
‘In this appeal, issues 1, 2, 3, 5, 6 and 7 have been resolved in appeal No. SC/CV/935/2023 – Abubakar Atiku & Anor. v INEC & 2 Ors. earlier this morning. Being similar issues in the sister appeal; they shall abide the outcome of Atiku’s appeal. They are accordingly resolved against the Appellants.
My Lords, as for issue No. 4 which has to do with double nomination of the 3rd Respondent, Senator Shettima Kashim, which issue was not in the earlier appeal alluded to above, it is my view that this court having settled the issue in Appeal No. SC/CV/501/2023, PDP vs INEC & 3 ors delivered on 26th May, 2023, it is unnecessary to relitigate the matter again in this court. It is in the interest of justice that there must be an end to litigation. It is also in the interest of the parties and society. Thus, the appellants are bound by our decision in SC/CV/501/2023 alluded to above. On the whole, this appeal lacks merit and is hereby dismissed. I shall make no order as to costs.’
➥ FURTHER DICTA:
⦿ PRELIMINARY OBJECTION IS RAISED TO THE HEARING OF AN APPEAL AND NOT A FEW GROUNDS
A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine. A Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustaining the appeal; which purported Preliminary Objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective grounds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal. See Per EKO, JSC, in AJUWON & ORS V. GOVERNOR OF OYO STATE & ORS (2021) LPELR-55339(SC) (PP. 4-5 PARAS. D). — Uwani Abba Aji JSC.
⦿ THE APPELLANTS COULD NOT SUBSTANTIATE THE NARCOTICS FINE AGAINST THE 2ND RESPONDENT
What matters always in this kind of situation is that there must be proof of such a sentence. A criminal conviction and sentence must be proved by the CTC of the judgment of court delivered or any admissible way of proving same and the said judgment must reflect all the ingredients of a valid judgment to bind the parties concerned. This is unfortunately where the Appellants could not proceed further or substantiate the sentence of fine against the 2nd Respondent. At page 3228 (vol.5) of the record, PW1 and PW12, who gave evidence on the US proceedings did not dispute the fact that the 2nd Respondent was not at any time, charged before any court, caused to make a plea, convicted or sentenced for any offence. Similarly, at page 3464 ( vol.5) of the record, RW2, a US attorney and an associate of the 2nd Respondent, testified that the 2nd Respondent was never convicted or fined for any criminal offence in the United States. In fact, PW1 confirmed that the proceedings in Exhibit PA5 series are civil proceedings, while equally admitting that he never mentioned anything about charge in the proceedings and that he never had one. By virtue of section 135 of the Evidence Act, it is beyond peradventure that the proof of this allegation ought to be beyond reasonable doubt. Section 249 of the Evidence Act clearly prescribes the manner of discharging this proof, by the provision of “certificate purporting to be given under the hand of a police officer” from the US, “containing a copy of the sentence or order and the finger prints of the 2nd Respondent or photographs of the finger prints of the said 2nd Respondent, together with evidence that the finger prints of the person so convicted are those of the 2nd Respondent. See PML (NIG.) LTD. V. F.R.N. (2018) 7 NWLR (PT. 1619) 448 AT 493. — Uwani Abba Aji JSC.
⦿ IN CIVIL FORFEITURE, THE PROPERTY IS THE TARGET
On the allegation of sentence of fine against the 2nd Respondent, this Honourable Court in JONATHAN V. FEDERAL REPUBLIC OF NIGERIA (2019) 10 NWLR (PT.1681) 533, held that “there is no need to prove any crime in forfeiture of property under section 17 ofthe Advanced Fee Fraud & Other Related. Offences Act, as civil forfeiture is a unique remedy which rests on the legal fiction that the property, not the owner is the target”. This of course was the basis of the lower court’s finding that the orders made in Exhibit PA5 were not in personam against the 2nd Respondent. There is no prove or preponderance of evidence to allow this arm of the Appellants’ issue. — Uwani Abba Aji JSC.
⦿ A CIVIL FORFEITURE IS NOT A PUNISHMENT FOR A CRIME
Let me consider the issue of the Order of the United States District Court, Northern District of Illinois that the sum of 406,000 USD in the account of the 2nd respondent be forfeited to the State. It is not in dispute that this is a non-conviction based forfeiture. There is nothing to show that the forfeiture was a punishment for the 2nd respondent’s conviction for any offence. There is no evidence of any conviction of any sort. It is a civil forfeiture made because the source of the money could not be explained. It is trite law that a civil forfeiture is a unique remedy that does not require conviction or even a criminal charge against the owner of the money. A civil forfeiture does not qualify as a fine or punishment for any unlawful activity so the argument that it qualifies as a fine for an offence involving dishonesty or fraud is not correct. — Agim JSC.
⦿ INTERPRETATION OF SECTION 134(2) OF THE CFRN
It is obvious that states of the Federation and the Federal Capital Territory, Abuja were lumped together as a group by Subsection (2) (b) above. What differentiates the constituents of the group is their names and nothing more. One of them is called Federal Capital Territory and the rest called states of the Federation. Subsection (2) (b) clearly refers to two thirds of all the constituents of the group enumerated therein as the minimum number from each of which a candidate must have one-quarter of the votes cast therein. There is nothing in Subsection (2)(b) that requires or suggests that it will not apply to the areas listed therein as a group. The argument of Learned SAN that the provision by using the word “and” to conclude the listing of the areas to which it applies has created two groups to which it applies differently is, with due respects, a very imaginative and ingenious proposition that the wordings of that provision cannot by any stretch accommodate or reasonably bear. If S. 134(2) of the 1999 Constitution intended that the Federal Capital Territory, Abuja should be distinct from states of the Federation as a distinct group it would not have listed it together with states of the Federation in (b). Also, if S. 134(2) had intended having one-quarter of the votes cast in the Federal Capital Territory Abuja as a 4 separate requirement additional to the ones enumerated therein, it would have clearly stated so in a separate paragraph numbered (c). It is glaring that S.134(2) prescribed two requirements that must be cumulatively satisfied by a Presidential candidate in an election contested by not less than two candidates, before he or she can be deemed duly elected President. It prescribed the first requirement in (a) and the second one in (b). It did not impose a third requirement and so there is no (c) therein … Such meaning would result a Presidential candidate that has the highest votes cast in the election and not less than one-quarter of the votes cast in not less than two-thirds of 36 states of the Federation or in all the states of the Federation cannot be deemed duly elected as President because he did not have one-quarter of the votes cast in the Federal Capital Territory, Abuja. This certainly violates the egalitarian principle of equality of persons, votes and the constituent territories of Nigeria, a fundamental principle and purpose of our Constitution. Such a meaning is unconstitutional. I think that his said proposition is the result of reading those provisions in isolated patches instead of reading them as a whole and in relation to other parts of the Constitution. Reading and interpreting the relevant provision as a whole and together with other parts of the Constitution as a whole is an interpretation that best reveals the legislative intention in the relevant provision. — Agim JSC.
⦿ WHAT IS AN ACADEMIC ISSUE
An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issue in the litigation because it is as it will not enure an if right or benefit on the successful party. Per NIKI TOBI, JSC @ 35 paragraphs D-H. Plateau State VS. AG. FEDERATION (2006) 3 NWLR (pt. 976) 346; OGBONNA VS. PRESIDENT FRN (1997) 5 NWLR (pt. 504) 281; HON. EKEBEDE UCHENNA VS. PDP & ORS: delivered on 03/3/2023 SC/CV/148/2023. — I.M.M. Saulawa JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Inyang Okoro JSC
⦿ FOR THE APPELLANT(S)
Dr. Livy Uzochukwu, SAN.
⦿ FOR THE RESPONDENT(S)
A.B. Mahmoud, SAN, for 1st Respondent.
Chief Wole Olanipekun SAN, for 2nd and 3rd Respondent;
Chief Akin Olujinmi, SAN, for 4th Respondent.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)