Appeal Court Not Bound by 180 Days Statute, Atiku Replies Tinubu, INEC, APC

*Says time limit applies only to election petition tribunals 

*Insists appellate court, not tribunal entertains disputes from presidential elections

Alex Enumah in Abuja

The presidential candidate of the Peoples Democratic Party (PDP) in the 2023 general election, Atiku Abubakar, has stated that the 180 days limit set by the 1999 Constitution for election petition cases is only for the election tribunals handling cases arising from the state assemblies, National Assembly and governorship elections, and not for the Court of Appeal, which entertains disputes from the presidential election.

Atiku argued that nothing stops the Supreme Court from accepting fresh evidence of forgery against President Bola Tinubu, insisting that it is not the election tribunal that entertains disputes arising from the presidential election.
According to the former vice president, the 180-day time limit applies to only the tribunals handling the disputes arising from the state assemblies, National Assembly, and governorship elections.

Atiku was replying to the application by the Independent National Electoral Commission (INEC), Tinubu, and the All Progressives Congress (APC), urging the apex court to reject his new evidence because the court cannot, at this stage, accept fresh documents that were not filed within the 180 days provided by law for the hearing at the lower court.

The former vice president, in one of his grounds for the nullification of Tinubu’s victory at the February 25 presidential election was that the president allegedly committed a major constitutional breach when in 2022 he submitted a forged certificate to INEC aid his qualification for the 2023 presidential election
According to him, it is immaterial when Tinubu committed the alleged offence, insisting that the law is law and must take its full course in the instant case.

The documents Atiku sought to tender are the academic records of Tinubu, which were handed over to him by the Chicago State University on October 2, 2023.
The 32-page documents were released to the former vice president on the orders of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America.

The US court had ordered the CSU to release the said documents to Atiku despite Tinubu’s objection because the court said it was convinced that it would be relevant in Atiku’s case against Tinubu, who won the February 25 presidential election.

But in their reply to the application, INEC, Tinubu, and APC urged the apex court to reject the application because the Supreme Court cannot at this stage accept fresh documents, having not filed within the 180 days provided by law.
According to them, the apex court at this stage lacked the necessary jurisdiction to receive and decide on the fresh evidence, having not been presented within 180 days.

Responding, the former vice president, through his lead counsel, Chief Chris Uche, (SAN), argued that, contrary to the avowed position of the respondents, “there is no such constitutional limit of 180 days on the lower court to hear and determine a presidential election petition, such that can rob this honourable court to exercise its power in any manner whatsoever.”

According to the senior lawyer, “the parties agreed that the Constitution is the fons et origo and the grundnorm, and supersedes any other legislation”.
Arguing further, Uche stated that while establishing the election tribunals to deal with election matters arising from Houses of Assembly, National Assembly, and governorship elections, the constitution gave the jurisdiction to entertain disputes from presidential elections only to the Court of Appeal.

“Thereafter, the constitution was intentional and deliberate in setting the 180-day limit only for election tribunals, and not for the Court of Appeal. On the other hand, when it came to appeals, the Constitution clearly and expressly extended the same to the Court of Appeal.
“The Constitution clearly excluded the Court of Appeal in the preceding subsection,” he submitted.

Furthermore, Atiku argued that a cursory look at Section 285 of the Constitution reveals that the lower court – Presidential Election Petitions Court (PEPC) – that heard his petition was not an election tribunal, adding that the framers of the Constitution limited the application of the 180 days specifically to election tribunals under section 285(6), excluding the Court of Appeal.

“On the other hand, when it came to the next subsection, namely Section 285(7), they intentionally included and mentioned the Court of Appeal. The trite maxim, my Lord, is ‘expressio unius est exclusio alterius’, meaning that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been included by implication.

“Furthermore, when granting jurisdiction to the Court of Appeal to entertain presidential election petitions, the Constitution did not pretend that it was conferring the jurisdiction on a “tribunal;” it clearly gave the jurisdiction to the Court of Appeal. Thus, section 239(1) of the Constitution specifically provides thus:
“Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether- (a) any person has been validly elected to the office of President or Vice-President under this Constitution.”
Uche also noted that when conferring on the Supreme Court the jurisdiction to entertain appeals arising from decisions on presidential election petitions, the constitution limited itself to the “Court of Appeal” and made no mention of ‘tribunal’.

He cited Section 233 subsections (1) and (2)(e)(i) of the Constitution which provides that, “The Supreme Court shall have jurisdiction, to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Court of Appeal.
“An appeal shall lie from decisions of the Court of Appeal to the Supreme Court as of right in the following cases- (e) decisions on any question – (i) whether any person has been validly elected to the office of President or Vice-President under this Constitution”.
Uche revealed that it was based on the above facts that the Presidential Election Petition Court itself administratively refused to be referred to as the “Presidential Election Petition Tribunal,” but the “Presidential Election Petition Court”.

While stating that it is derogatory to refer to the Court of Appeal as a tribunal, the appellants/ applicants therefore “submit that there is no constitutional limitation to rob this honourable court of the jurisdiction to exercise its express powers under Order 2, Rule 12 of the Supreme Court Rules 1985 to receive this vital and constitutionally important fresh evidence relating to the qualification of a candidate to contest election to the exalted office of President of the Federal Republic of Nigeria”.

While Atiku, on one hand, is alleging that the election that produced Tinubu as President was substantially flawed and should be nullified, on the other, he is claiming Tinubu should have been disqualified from contesting the poll on the grounds of alleged forgery and perjury.
Atiku emphasised that the presentation of a forged certificate to INEC in an election automatically disqualifies a candidate for all time, no matter when presented.

“That the case is not whether the 2nd respondent attended Chicago State University but whether he presented a forged certificate to the Independent National Electoral Commission (INEC).
“That at the trial, a National Youth Service Corps certificate with serial number 173807 presented by the 2nd Respondent to the 1st Respondent was equally tendered by the Appellants/Applicants at the trial as ‘Exhibit PBD 1A’ with the name Tinubu Bola Adekunle, which is annexed herewith as Exhibit “J”.