The world over, judgments of courts in high profile political cases generate humungous controversies. While the victorious side will usually gloat and describe such favourable judgments as victory for democracy and the rule of law, the losing sides or parties not favoured will, while rejecting the decisions, lament and claim that such judgments are a rape on democracy or travesty of justice.
Either way, these will never stop and have never stopped the Courts, in appropriate cases, from delivering on its constitutional responsibility of adjudication. Justice is bound to be done even if the heavens fall. This is expressed in the Latin maxim “Fiat justitia ruat caelum”. That is the unenviable lot of judicial officers!
To say that the consolidated judgment of the Presidential Election Petition Court (hereinafter abbreviated as “PEPC”) delivered on the 6th day of September is controversial is not out of place. A lot was at stake in the partisan petitions and the outcome has expectedly generated mixed reactions. While the victorious sides are happy and full of kind words for the arbiters, the unsuccessful sides have rejected the judgment and indicated a possible appeal to the Supreme Court. Though there was a live television broadcast of the delivery of the judgment, many Nigerians are yet to understand the complex legal reasons that informed the judgment. How do you understand or explain a judgment that is written in 798 (seven hundred and ninety eight pages) pages and delivered for nearly twelve hours?
Apart from the fact that proceedings in superior Court are more often than not formal and technical in nature because of the law that established the particular Court; its jurisdiction as donated under the Constitution or Law establishing it or other duly made Laws; and the applicable Rules of Court, election cases are suis generis. This means that election petitions are distinct from the ordinary civil proceedings. Aside the highly technical rules and canons of interpretation that the PEPC relied on to deliver its consolidated judgment (most of which are unknown to many persons) how do you explain to the layman or ordinary citizen what the court decided when the court employed what would appear like "voodoo" words such as “subpoena”, “sui generis", "presumption of regularity", “onus of proof”, "burden of proof", "declaratory reliefs" to mention a few? Furthermore, how do you explain to the voter what the PEPC decided with respect to INEC not being bound to upload results electronically when, before the elections, INEC officials were all over the place including overseas at Chatham House in London promising that technology will be deployed in the conduct of the last general election and that results will be announced real time in the polling units and uploaded real time on IREV when this was not the case in the end?
This intervention which is made for public enlightenment is in search of the “LCM” in the judgment of the PEPC in the three petitions it dismissed in favour of the Respondents on the 6th day of September 2023. Notwithstanding the disputations, what are the middle grounds in the dismissed consolidated petitions are as follows- PETITION NO CA/PEPC/03/23 PETER OBI & ANOR V INEC & 2 ORS; PETITION NO CA/PEPC/04/23 ALLIED PEOPLES MOVEMENT V INEC & 4 ORS; and PETITION NO CA/PEPC/05/23 ABUBAKAR ATIKU & ANOR V INEC & 2 ORS? In Mathematics, the “LCM” meaning “Least Common Multiple”, of any two is the value that is evenly divisible by the two given numbers. It is also called the Least Common Divisor ( abbreviated as "LCD").
Coincidentally, law is not mathematics. Lord Denning is reputed to have said that unlike in mathematics where 1+1=2, in any legal issue, there is no precise answer, even amongst the learned. How do you convince openly partisan people that a judgment in their favour is wrong or vice versa? Against this backdrop, this interrogation is prefaced with a warning or caveat that interest is a blinding disease. Yet, no one is without interest. According to Charles Curtis, “There are only two ways to be quite unprejudiced and impartial. One is to be completely ignorant. The other is to be completely indifferent. Bias and prejudice are attitudes to be kept in hand, not attitudes to be avoided.” Election petition cases are inherently controversial being that they are presented to the Tribunal for adjudication between highly partisan or interested parties. Politicians are incurable optimists.
In a civil case that is conducted in court (by lawyers), although there are two contending interests (those of the plaintiff and defendant), there are usually three opinions namely the opinion of the plaintiff counsel, the opinion of the defendant’s counsel and lastly the opinion of the learned trial judge on the matter. In all of these, the opinion of the judge on the contended issues, properly styled the judgment of the court, is the most important and weightiest. Court judgments are basically technical although the courts try to run away from sacrificing justice on the altar of technicalities.
At the risk of being contradicted, the judgment of the PEPC delivered on 6th September 2023 is highly technical and understandably so because they relate to election petitions. It is a common ground amongst jurists and lawyers that election petitions are "SUIS GENERIS" and a fertile ground for breeding of the highest forms of technicalities. The average citizen or layman does not understand the "suis generis" or special nature of election petitions.
“SUIS GENERIS” is a Latin adjective or term meaning “in a class of its own” or “of its own kind. Anything sui generis is its own thing; there's nothing else like it". In the case of JOSEPH NWOBASI v ANAYO EDWIN & ORS (2023) LPELR-60005(SC) (Pp. 34 paras. A), the Supreme Court, in the judgment delivered on Friday, the 10th day of February, 2023 per Okoro JSC, while relying on its earlier decisions in OKECHUKWU v INEC (2014) 17 NWLR (PT. 1436) 255; NYESOM v PETERSIDE (2016) 7 NWLR (PT. 1512) PAGE 452; HASSAN v ALIYU (2010) 7 NWLR (PT. 1223) 547, held that "The law is trite that election matters are sui generis with a special character of their own, quite different from the ordinary civil or criminal proceedings. The major difference being time of doing an act because time is of the essence in election matters.” As held by the same Supreme Court in BUHARI & ANOR v YUSUF & ANOR (2003) LPELR-812(SC) (PP. 18-19 PARAS. D) per Uwaifo, JSC, an election petition is neither seen as a civil proceeding in the ordinary sense nor, of course, a criminal proceeding. It is usually always regarded as a proceeding sui generis heard and determined by an appropriate Election Tribunal as usually provided under section 285 and the 6th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended. The procedure is largely governed by a law made specially to regulate the proceedings. The jurisdiction of an Election Tribunal to deal with Election Petitions is of very special nature different from that in an ordinary civil case. It is plain that the proceedings are special for which special provisions are made under the Constitution.
Shorn of all legal niceties and technical hues, for the enlightenment of the ordinary citizen or layman, the simplest representations of the outcomes and consequences of the judgment of the PEPC include but are not limited to the following-
(1) The consolidated judgment was a unanimous decision, meaning that all the five Justices of the Court of Appeal that sat as a PEPC agreed on all issues and dismissal of all the petitions in the judgment rendered. In other words, there was no dissenting judgment or opinion. The bottom line is that the PEPC found no merit in any of the grounds that formed the various petitions presented to it by the petitioners in PETITION NO CA/PEPC/03/23 PETER OBI & ANOR V INEC & 2 ORS; PETITION NO CA/PEPC/04/23 ALLIED PEOPLES MOVEMENT V INEC & 4 ORS; and PETITION NO CA/PEPC/05/23 ABUBAKAR ATIKU & ANOR V INEC & 2 ORS.
(2) The PEPC held that the Petitioners in the different petitions did not prove their respective cases against the Respondents. Hence, the declaration of the APC Presidential candidate, now President Bola Tinubu as the winner of the 25 February 2023 Presidential election by INEC has received judicial approval. In any judgment of a court, there is usually no draw as a winner must emerge. Cases presented in court are either proved, not proved or disproved.
(3) The PEPC held that he who asserts must prove. The allegation of fraud against the APC Presidential candidate was not proved as he was not convicted of drug related crimes in the USA. Specifically, the PEPC held that there was no evidence that the 2nd Respondent was tried and convicted for any criminal offence.
(4) The dual nationality case against President Tinubu was dismissed and the PEPC held that the APC Presidential candidate is qualified academically to contest for the office of President of Nigeria. Only the national constitution sets parameters for qualification or disqualification of a candidate, not the Electoral Act.
(5) The PEPC held that the Petitioners did not prove their double nomination allegations against the candidature of APC Vice-Presidential candidate. The PEPC held that Senator Kashim Shettima was eligible to be nominated and lawfully stood election as Vice-presidential candidate of APC when he did and in the manner he was nominated. That the V-P position is not the product of a primary election and the V-P candidate is not liable to be replaced via primary election. Nothing in the constitution robs the Presidential candidate of the right to substitute his V-P candidate at least 90 days before the election.
(6) The PEPC held that residents the Federal Capital Territory Abuja are not special and that it is not compulsory for a Presidential candidate to secure at least 25% of the votes cast in the Federal Capital Territory. Abuja.
(7) The PEPC did not agree with APC’s contention that the LP Presidential candidate Peter Obi, was not eligible to contest the Presidential election based on the allegation that his name was not on the register of LP members submitted to INEC before the election.
(8) The PEPC judgment touched various aspects of the nascent provisions of the Electoral Act, 2022. Specifically, the PEPC held that the INEC is independent and is therefore at liberty to choose any method for transmission or transfer of election results.
(9) The judgment of the PEPC is not final and conclusive. Thus, the last has not been heard about the different petitions. Any dissatisfied party is entitled to lodge an appeal to the Supreme Court within fourteen days. The successful party (parties) is also entitled to file an appeal on any aspect of the judgment that he is not (or they are not) satisfied with. By reason of the provisions of the Constitution, the Supreme Court has sixty days from the 6th day of September 2023 when the consolidated judgment of the PEPC was delivered to determine the appeal. The Supreme Court has the final say. This means that after the Supreme Court, appeal does not lie elsewhere.
(10) it must be noted clearly that based on the doctrine of judicial precedence, the consolidated judgment of the PEPC is binding on all State and National Assembly and Governorship Election Petition Tribunals across the country unless and until the decision of the Court of Appeal sitting as PEPC or a part of it is upturned by the Supreme Court. Hence, irrespective of any misgivings any person or group of persons may have, the consolidated judgment of the PEPC remains the position of the law on any of the issues decided therein.
Without prejudice to what position the Supreme Court may take on any of the issues that may be presented to it for adjudication on a final appeal, it is disturbing that the consolidated judgment of the PEPC has made it apparent that from the position of the nascent electoral laws and the heavy burden of proof cast on the petitioner, it is an uphill task to upturn an electoral victory. This is not too good for deepening Nigeria’s democracy along the frontiers of free, fair and credible elections. Free, fair and credible elections is at the heart of democracy. Perhaps, after the final judgment of the Supreme Court (if it upholds the position of the PEPC) in the consolidated judgment, there may be need to amend the Electoral Act as any law that supports the oppressor against the weak is no law. The end of law is justice. The consolidated judgment of the PEPC weakened supposed gains made under the Electoral Act, 2022 and leaves Nigeria’s electoral fortunes in quandary. As it stands, the PEPC judgment is a clear invitation for further amendment of the Electoral Act to hold the INEC accountable and to make electronic voting and real time electronic transmission of results part of Nigeria's electoral laws. INEC should be placed under a legal duty to warehouse the responsibility of proving that the result it declared is a product of free, fair and credible process contrary to the current practice.
On a final note, judgments of Courts must be read and or dissected dispassionately. Any sincere legal scholar or jurist will not hesitate to commend the lawyers that handled the petitions on all sides of the divide and the Justices of the Court of Appeal that presided over the PEPC. The amount of work that went into the conduct and trial of the petitions within the 180 days allowed for them to be heard and determined is simply breathtaking. Needless to say that commendable industry went into the preparations and conducts of the cases by the lawyers for all the parties in the petitions. On the other hand, a lot of precious juristic ink was expended in writing the consolidated judgment of the Court of Appeal as a PEPC. It is historical that on the 6th day of September 2023, the Court of Appeal sitting as PEPC sat for over twelve hours to deliver rulings on different kinds of motions and or countless objections taken in the matter before delivering the much awaited judgment.
While all parties and Nigerian people are bound by the consolidated judgment of the PEPC (unless and until set aside by the apex Supreme Court), it is appropriate to remark in conclusion that though it appears from the judgment of the PEPC that INEC may not have broken any law in the conduct of the 2023 Presidential election but the INEC must be reminded that it flagrantly broke the fidelity or trust of Nigerian people in the type of elections it conducted. Elections in Nigeria can afford to be free, fair and credible. That way, not too many petitions will be presented to the courts for adjudication.
A new normal is possible!
Prof Obiaraeri, N.O.
