When PEPT Came to Judgement 

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Atiku, Obi & Ors v Tinubu, Shettima & Ors: Presidential Petitions 

Waiting for the judgement of the Presidential Election Petition Tribunal (PEPT), was almost as if we were waiting at the gates of Heaven and hell, for judgement to determine where we would be admitted into! I had started to receive telephone calls from a few days before the judgement was handed down, asking me about my opinion as to what I thought would or should be the outcome of the LP and PDP Presidential Petitions against APC. As I had previously done some analyses on this page, on some of the issues raised about the elections and in the petitions – for instance, on 11/4/23 – “Election Petitions: Between Public Opinion and Judicial Process; 25/4/23 –  “2023 Polls: Between Emotions and Legal Provisions”, I referred the Callers to them. The truth is that, based on what I have studied in law, I didn’t expect the Petitioners to get very far having perused their Petitions, and I had said as much in my above-mentioned write ups; so, I wasn’t in the least bit surprised at the judgement. 

It is undeniable that many have lost faith in the Judiciary, as there have been reasons to question some of their decisions and disagree with them, but I think that we must consider each case on its merits, and refrain from making sweeping, negative, blanket statements about all the Judiciary’s decisions. It is unfair to tar the whole Judiciary with the same brush of corruption etc. In fact, mischief makers who want to heat up the polity, had been taking advantage of the criticisms that the Judiciary has experienced, turning the public against the Judiciary in advance if the judgement didn’t go their way, despite the fact that they may be aware that the Petitioners’ cases may not have been properly grounded in law and had little or no chance of success.

What is So Special About the 2023 Presidential Election?

I have asked myself time and time again, what makes the 2023 Presidential election different from the last six which have held in this fourth Republic, and why some people were hellbent on causing more strife in a country that is already facing so many problems, if they don’t get their own choice installed as President of Nigeria. 

While I haven’t hidden my opinion in cases in which I disagreed with the decisions of the courts, for example, the Machina/Lawan case, I found the reasoning behind the PEPT’s judgement to be sound, based on law and facts, clear, coherent and logical; the learned Justices of the Court of Appeal seemed to tackle every aspect of every Petition, deciding them on their merits using established principles of law and following the doctrine of stare decisis. See the case of Mbani v Bosi & Ors (2006) LPELR-1853(SC) on the elements of a good judgement. 

Seditious Behaviour of Some

Nevertheless, the Petitioners disagreed with the judgement, and they have every right to do so and appeal the PEPT’s decision. However, no one has the right to spew hatred amongst Nigerians and bring the Judiciary into unnecessary disrepute, because they are dissatisfied with the decision of the court. It is trite that, the court cannot decide a case based upon what a section of the society believes the decision should be, nor is a court empowered to go out of the evidence presented, to decide any case before it – see the case of Magaji v Lado & Ors (2023) LPELR-60463(SC) where the Apex Court held that “Courts do not deal in speculation, rather, they work with facts as presented before them”. In Wike v Peterside (2016) LPELR-40036(SC), the Supreme Court held inter alia that a Petitioner complaining of noncompliance with the Electoral Act “must prove it polling unit by polling unit, ward by ward, and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with, as a result of noncompliance”. This is definitely an arduous task in a Presidential election petition, and  Petitioners are usually unable to meet this criteria, and so, unsubstantiated allegations can only sway the unknowing public, and not any Lawyer or Judicial Officer worth his or her salt.

Call the law an ass or whatever invective you choose to pour on it, but the law is the law, and while we never fail to remind Government about the importance of upholding the rule of law, so also as citizens, is it part of our social contract to be law abiding. See Sections 1,15, 24(a), (b) & (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), the Criminal Code Act, the Penal Code Act, the Cybercrimes Act, amongst other Laws of the Federation. In Ogidi v COP (1960) 1 N.S.C.C. 171 at 174 per Brett F.J., the court held inter alia thus: “In a series of categorical assertions, it accuses the Customary Courts of a whole Division, of being the creatures of a political party of deliberately discriminating against the opponents of the party, and denying them justice, so that citizens are not safe with the courts. It is difficult to conceive of anything better calculated to bring into hatred or contempt, the administration of justice in Nigeria, than such an attack….”. Right from the day of the Presidential election (maybe even prior), some of our people not only incited people against the Judiciary, but raised discontent and disaffection amongst the people, promoting hostility and ill-will between different classes of Nigeria’s population via the news and social media. Such seditious behaviour is contrary to Section 50(2)(c) & (d) of the Criminal Code Act. Also see the case of IGP v Anabogu (1954) 21 N.L.R. Page 26 at 27 per Bairamain J. Ihad had cause to counsel against hatred and division, and advocate for healing instead, sometime after the elections. I stand my ground.

My Analyses & PEPT Judgement

Space constraints do not permit me to consider all the aspects of the lengthy PEPT judgement,  only a brief overview, but, I must state here that most of my analyses of the main issues for determination turned out to be spot on, as some of my earlier conclusions turned out to be part of the PEPT’s decision. 

1) Noncompliance 

I had emphasised the possibility of noncompliance as the main ground for the petitions, since I  failed to see how some of the other grounds like President Tinubu’s disqualification à la the American case, the FCT 25% Conundrum, Electronic Transmission of Results etc could be resolved in the Petitioners’ favour. Section 135(1) of the Election Act 2022 (EA) provides that manipulation of election results must be substantial to substantially affect the outcome of the election, and I thought using this ground may be the Petitioners’ best bet, if they were able to discharge the burden of proof which the law places on them, to convince the PEPT that they were rigged out of the election. See Sections 131-134 of the EA and the case of Maku v Al-Makura & Ors (2016) LPELR-48123 (SC) per Onnoghen JSC (as he then was). 

Unfortunately for the Petitioners, the PEPT dismissed their Petitions as umeritorious, holding that they had failed to discharge this burden of proof, as they didn’t provide evidence to support their claims as per the requirements stated in Wike v Peterside (Supra) and other cases. It is trite law that, he who alleges must prove. It is not enough to regurgitate the omnibus grounds that can be used to invalidate an election, without the requisite evidence to support the allegations; that is, to prove your case, it is not enough to say that there was rigging in five polling units, you must provide the court with proof, like figures that were unlawfully added onto the Respondent’s own or deducted from yours, and testimony from your polling agents who were present at the particular polling unit or collation centre being complained of. 

We have over 177,000 polling units in Nigeria, out of which results from about 18,088 or so of them were questioned by the Petitioners. For example, one of the Petitioners had 13 witnesses, out of which only three filed their witness statements on oath along with the Petitions and testified on behalf of the Petitioners, contrary to Paragraph 4(5)(b) 1st Schedule to the EA  – the cases of Oke & Anor v Mimiko & Ors (2013) LPELR-20645(SC); Buhari v Obasanjo 2005 13 N.W.L.R. Part 941 were some of the cases cited by the learned JCAs in this regard. Even if all 13 witnesses and their statements on oath, whether filed out of time or not were countenanced, that small number of witnesses wouldn’t have satisfied the threshold of testimony required for the thousands of polling units brought into question – see Section 135(1) of the EA and Wike v Peterside (Supra). The PEPT observed that some specific polling units were not named, nor the alleged authentic results provided, neither were the polling agents who were alleged to have complained about the results named, or called as witnesses. Even the spread sheets that the Petitioners apparently sought to rely upon, were apparently not attached to their bundle of documents when they were filed. The PEPT concluded that since polling agents were not octopuses who had tentacles extending to all the polling units or collation centres in Nigeria, they could only know about the ones they were physically present at, and analysing information provided by third parties to come to their conclusions amounted to relying on hearsay evidence, that is, oral or written evidence made otherwise than by a witness, which is inadmissible. Indeed, this is the position of the law. See Sections 37 & 38 of the Evidence Act 2011. See the case of  Olalekan v State (2001) LPELR-2561(SC) on the definition of hearsay evidence; Okoro v State (1998) LPELR-2493(SC) on the inadmissibility of hearsay evidence.

2) Non-Electronic Transmission of Results

I had asserted that the issue of the non-electronic transmission of results was not fatal and it went to no issue, because Section 50(2) of the EA gives INEC the latitude to transmit results in accordance with the procedure it deems fit, and therefore, INEC didn’t break the law by deeming it fit to transmit the results manually, and this was what the PEPT so held inter alia. And, even though INEC Guidelines may have provided for the use of IRev, this also went to no issue, as the Guidelines are inferior to the EA which do not so provide. See the case of Jegede & Anor v INEC & Ors (2021) LPELR-55481(SC) per Emmanuel Akomaye Agim JSC, where the Apex Court held inter alia that “Failure to obey the directive of..INEC in the said Regulations or Guidelines, cannot be relied on as a ground for an election petition to invalidate an election…”.

3) American Court Process

I had warned against the court of public opinion handing down its own various decisions based on tribe, sentiments, religion, conjecture and everything else, but the law; The most popular allegation against President Tinubu, was the American court process concerning funds in accounts which were forfeited ($460,000). I had explained that it was an ‘action in rem’ and not against President Tinubu personally (not an ‘action in personam’), with the money in the accounts referred to in the court process as the ‘Defendant Funds’, and the PEPT so held. While the American court process was the document the Petitioners relied upon, President Tinubu relied on a letter from the American Government stating that he was not charged for any criminal offence in America, neither had he been convicted. This was upheld by the PEPT. This issue failed to meet the threshold of disqualification in Section 137(1)(d) of the Constitution. 

The Petitioners decided to change the term ‘forfeiture’ stated in the American court process to ‘fine’ in their own pleadings; two completely different concepts in law. In an environment that is stricter than ours, like the UK, trying to pass of forfeiture as a fine which connotes that a person was charged for an offence, convicted and punished by the imposition of a fine when this wasn’t the case, may possibly have been a ground for professional misconduct, with an allegation that Counsel attempted to mislead the court in their pleadings, and could easily result in such Counsel being sanctioned by the Disciplinary Committee.

4) FCT 25% Conundrum 

I had given my reasons for believing that Section 134(2)(b) of the Constitution did not mean that a candidate must win 25% of the votes in FCT in particular, in order to win a Presidential election, as that would be tantamount to giving the FCT special status over and above the other States, contrary to Section 299 of the Constitution which provides that the FCT should be treated as any other State for the purposes of the Constitution. See the case of Awolowo v Shagari & Ors (1979) LPELR-653(SC). The PEPT declared LP’s proposition that a Presidential candidate needed 25% of FCT to win, to be unmeritorious and cited copiously the case of Buhari v Obasanjo (Supra), which I had also cited in my submission. 

Conclusion 

Mostly, I thought the learned JCAs on the PEPT, did justice to the Petitions. Their judgement was thorough and detailed, and as a Lawyer of 32 years standing, it doesn’t strike me as a judgement that is ‘per incuriam’, that is, a judgement handed down without due regard to the law, or one that is perverse, or goes against the weight of the evidence that should be overturned on appeal. See the case of NEPA v Ososanya 2004 5 N.W.L.R. Part 867 Page 601 at 624. Most of what was decided in the Presidential Petitions were not new issues, but ones that have already been settled by the Supreme Court, as can be seen from many of the cases cited in the judgement. I however, reiterate the fact that the Electoral Act still needs to be rejigged, and our electoral process improved upon, to enhance the integrity of our elections and provide Petitioners with a better playing field, either during the elections themselves or in the court process.