On Wednesday, September 6, the Presidential Election Petition Court (PEPC) delivered a 12-hour marathon judgment that threw out the petitions of the Allied Peoples Movement (APM), PDP and its flag bearer, Atiku Abubakar; as well as that of the LP and its presidential candidate, Peter Obi.

The five-man panel led by Justice Haruna Tsammani not only dismissed the consolidated petitions of the PDP, the APM, and the LP but it also clearly affirmed the victory of Tinubu, a former governor of Lagos State.

“This petition accordingly lacks merit. I affirm the return of Bola Ahmed Tinubu as the duly elected President of the Federal Republic of Nigeria,” Justice Tsammani said. “The parties are to bear their cost.”

Since then, opinions have been divided among Nigerians about the judgment. While others described the judgment as substantial justice, others disagreed accusing the tribunal of sacrificing substantial justice on the altar of technicalities.

For a better understanding of the discourse, it is pertinent to refresh our minds on some of the issues canvassed before the tribunal by the petitioners.

The election of President Bola Tinubu of the All Progressives Congress (APC) was challenged on grounds bordering on non-qualification of the candidate at the time of the election, that his election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2022, and that he was not duly elected by majority of the lawful votes cast at the election. These grounds come within the purview of Section 134(1)(a), (b) & (c) of the Electoral Act 2022 and Section 137(1)(d) of the 1999 Constitution, “as amended”.

Other grounds of the consolidated petitions were couched around issues regarding his election, from his drug issues in America, competent basic educational qualification, age falsification, the non-transmission of the result to INEC IReV Portal, and most importantly not scoring the constitutionally required 25 per cent votes from the Federal Capital Territory, among various other issues.

Having refreshed our minds on the above knotty issues that were raised against Tinubu and the APC at the PEPT, we will then proceed to highlight the key points of the tribunal findings and resolutions of the issues of facts and law.

It was the judgment of the tribunal that the allegation of double nomination of the Vice-Presidential Candidate of the APC, Senator Kashim Shettima, is a pre-election issue within the confines of his political party, implying that it is an internal matter of the party.

That the non-qualification of Tinubu under Section 131 of the 1999 Constitution “as amended” was resolved in his favour and his party, its candidate. To the effect that he was qualified to contest for the office of the President of the Federal Republic of Nigeria.

On Tinubu’s educational qualifications, the tribunal held thus: “On educational disqualification, the alleged awarding institution must disclaim the authenticity and validity of the certificate of qualification being relied upon by the candidate; which can only be discharged where the school is subpoenaed to give evidence.”

The tribunal held that section 134 (2)(b) of the 1999 Constitution in relation to the FCT, should be read in conjunction with Section 299 of the Constitution giving the FCT a toga of a state, and not a privilege above or higher than other states of the federation. In other words, it is not mandatory for a presidential candidate to garner 25 percent of the votes of the Federal Capital Territory before being elected as the President. All that is required is 25 percent of the 36 states of the federation.

It equally held that the allegation of dishonesty flowing from the forfeiture of $460,000 to a court in America alleged as proceeds of crime, was resolved in favour of the APC and its candidate on the grounds that the forfeiture is a civil forfeiture, and no crime was disclosed. For this allegation to bar or disqualify a candidate seeking elective office into the Presidency, there must be a conviction.

That the petitioners were unable to place credible evidence before the tribunal to be declared the winner of the election, by leading evidence of having majority of the lawful votes garnered at the election.

Indeed, the provisions of the Evidence Act, Sections 131, 132 & 133 state that the burden of proof is on the person who asserts the existence of a fact to prove same on a balance of probability sequel to Section 134.

The tribunal held that the petitioners in their consolidated petitions failed to prove the allegations and claims as contained in their petitions.

On this, a female member of the tribunal, Justice Monsurat Bolaji-Yusuf, was very critical in her judgment when she stated thus: “It is clear that the petitions from the onset, were engaged in a wild goose chase and inquisitorial adventure.

The petitioners did not understand the explanation of the first Respondent, or were just fixated on their belief that they won the election without any cogent and credible evidence before this court.

Were they expecting the court to go and gather evidence from the street or the market? Or to be persuaded or intimidated by threats on social media. That is not the way of the court.”

That the petitioners failed to adduce evidence for corrupt practices and non-compliance with the provisions of the Electoral Act, particularly as regards over-voting.

On the claim of over-voting, the tribunal held thus: “To determine over-voting, a party must produce either the original or certified true copies of INEC documents, the BVAS machines, the register of voters and Form EC8A. The court held that: “it is glaring from the provisions of Regulation 48(a) of the INEC Regulations and Guidelines and the Electoral Act that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the register of voters, BVAS and the polling unit result in form EC8A and that the evidence required to prove that there was over-voting, are the record of accredited voters in the BVAS and the polling unit result in form EC8A”.

On the allegation of dual citizenship of Tinubu, the tribunal said it was not part of the pleaded facts of the petitioners, at the time of the presentation of the petition.

That the petitioners were unable to discharge the evidential burden of proof placed upon them.

That the challenge of Peter Obi’s candidature of Labour Party by the APC is an internal issue of the labour Party, which can only be ventilated by a member of the Labour Party.

Another high point of the judgment was the striking out of the witness depositions of the petitioners on the grounds that they were not filed within 21 days alongside their petitions. The tribunal relied on the provision of Section 285(5) of the 1999 Constitution “as amended” and Section 132 (7) of the Electoral Act, 2022, which jointly state that a petition must be presented within 21 days and by paragraph 4(5), of the Electoral Act 2022 in presenting the petition, it must be accompanied by a written witness statement on oath, which must be filed within the time frame allowed.

Incidentally, in the consolidated petitions, the court was saddled with witness statements on oath which were filed outside the statutory and constitutional time frame, resulting in the processes being struck out.

(1)On transmission of results to the IREV whether mandatory. The court held thus: “It is clear from the provisions of the Regulation 38(i) and (ii) that the collation system and result viewing portal are different from the National Electronic Register of Election Results. The Collation system and result viewing portal are operational during the election as part of the process, the National Electronic Register of the Election Results is a post-election record, and is not part of the election process. As I had held therein, there is no part of the Electoral Act requiring presiding officer to transmit the accredited voters in a polling unit or the polling unit result during election to the INEC data base as part of the election process….. Therefore, the case of the Appellants that the presiding officer was bound instantly or on the spot during election to transmit the number of accredited voters and results of the election in the BVAS to the INEC data base or back end server and that in the counting of votes cast at the polling unit the collation of the results of the election, it is the number of accredited voters, votes cast at the polling unit, the collation of the results of the election, it is the number of the accredited voters, votes cast or results transmitted directly from the polling units to the data base that should be taken into account, has no support in any of the provisions of the Electoral Act or INEC Regulation (supra). There is no such duty on the presiding officer.

After arriving at the above findings, the tribunal came to the conclusions that the petitions were unmeritorious, and were dismissed accordingly.

Having distilled the above issues from the judgment, the question to be asked is whether the judgment was based on substantial justice or on technicalities?

Opinions are divergent on this. While president Tinubu and his camp have expectedly hailed the judgment and thumped up the tribunal for dishing out substantial justice, the petitioners and of course their sympatizers and other stakeholders in the judicial system have risen in total condemnation of the judgment and have since commenced the process of challenging same at the Supreme Court.

Throwing his weight in support of the judgment from the political class, a former national chairman of the All Progressives Grand Alliance (APGA), Chekwas Okorie, said: “I am not surprised at the outcome of the judgement of the Presidential Election Petition Tribunal. I took the time to read through the petitions of Alhaji Atiku Abubakar of the PDP and Peter Obi of Labour Party before now. I was satisfied that the petitioners failed woefully to specify the polling units or collation centers where they were denied lawful votes which could have earned either of them victory at the polls.

“Rather than prove a case of substantial noncompliance with the electoral law, they seemed to have relied on scoring technical points to win their petitions. Their strategy failed.”

However, those against the judgment have accused the tribunal of dashing the hope of the common man by sacrificing substantial justice on the altar of technicalities.

Critics of the judgment faulted the holding of the tribunal that the witness statement of an unwilling subpoenaed witness must be front-loaded and filed along with the petition.

They accused the tribunal of merely enacting a factual impossibility, which has invariably resulted in a miscarriage of justice with the resultant striking out of critical oral and documentary evidence of petitioners’ witnesses.

Kenneth Ikonne who raised the issue noted, “the petition must be filed, within 21 days of the declaration of the result of the election. Within those 21 days, the panel which will issue and sign the subpoenas wouldn’t even have been inaugurated. How then do you compel the INEC Chairman or REC to donate to you a witness statement on oath against his wish, without a subpoena ordering them to do so? The applicable legal maxim in the circumstances is les non cogit ad impossibilia, meaning “the law does not compel the impossible”! Also applicable is the maxim, impotentia excusat legem”, meaning “the law does not punish a person for not doing what he lacked power to do”

In his reaction, a Senior Advocate of Nigeria, George Oguntade (SAN), noted, “the other knotty point of law is the statutory requirement that witness statements (of both ordinary and subpoenaed) must be filed alongside the Petition within the 21 days statutory period. Should this provision be mandatory and immutable, or should the constitutional requirements of fair hearing dictate that time should be extendable in appropriate situations? The argument I believe, will centre around the diffe rence between technical and substantial justice, regardless of the fact that Elections Petitions are sui generis and the time provisions are scrupulously adhered to. The sacrificial lambs may ultimately be the Lawyers who filed their witness statements out of time (perhaps, due to reasons outside their control), despite awareness of the attitude of the court in construing time provisions in the Electoral Act. Either way, our jurisprudence stands to be greatly enriched.

On his part, the Executive Director of Access to Justice (A2J), Joseph Otteh, accused the tribunal of “simply burying its head in the sand”, using exponential doses of legal technicalities to defeat public expectations that it would actually interrogate the facts of the February 25th Presidential election process.

The PEPT, he said, discountenanced substantial amounts of testimonies and evidence, simply by saying they were either filed out of time, or were introduced using wrong procedures. It is deeply unfortunate that in the 21st century, Nigeria’s Judiciary is applying principles better suited to inanimate objects than to living things and living processes which are inherently dynamic in nature, and are influenced by the ebbs and flows of human nature.

The question the PEPT’s judgement raises, is whether Nigeria’s electoral jurisprudence should keep its focus on the merits and substance of electoral complaints, or turn on the outcome of a blistering and exacting scrutiny of whether electoral complaints adhered to all requirements of all legal rules. Without a well-reasoned philosophy of electoral jurisprudence, Nigerian courts are returning outcomes that are difficult to reconcile with our national aspirations for much better electoral systems.

Given the PEPT’s narrow focus, it drew blank on, and missed important contexts which ought to have played a major part in informing the resolution of the petitions. It did not take account of Nigeria’s chequered history of badly run elections, vote manipulations and fraudulently contrived results; it did not factor in the long struggles to reform Nigeria’s electoral process, and the reforms introduced to reduce electoral fraud/malpractice, and how BVAS and IREV played into that strategy. It also failed to acknowledge the importance of transparent elections, and of maintaining the integrity of votes cast at elections; it did not consider how the introduction of technology (such as BVAS and IREV), was geared towards improving electoral transparency and increasing public confidence in election outcomes. Instead, the PEPT’s focus simply narrowed down to the legal mandatories of using the new IREV technology. The PEPT treated the IT reforms intended to remedy past electoral malpractices as though they had no electoral value or purpose of their own, reducing them to sterile, discretionary third-wheel additions to the electoral process. (Daily Sun)

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