Yesterday, the legal dispute over the February 25 presidential election won by President Bola Ahmed Tinubu of the governing All Progressives Congress (APC) was laid to rest forever.
The Supreme Court upheld the September 6 verdict of the Presidential Election Petition Court (PEPC), also known as the Tribunal, which affirmed Tinubu as the winner of the election.
The apex court dismissed the appeals by Atiku Abubakar of the Peoples Democratic Party (PDP) and Peter Obi of the Labour Party (LP) against the verdict.
The thrust of their appeals was that the tribunal erred in law when it held that Tinubu did not require 25 per cent of the votes cast in the Federal Capital Territory (FCT) to win the election.
The FCT issue was a bone of contention even before the election. Lawyers expressed divergent opinions on it. Former Nigerian Bar Association president Olisa Agbakoba (SAN) stirred controversy when he wrote to the Independent National Electoral Commission (INEC) a month before the poll to make its stand known on Section 134 (2) of the 1999 Constitution (as amended), which states the requirements for winning the election.
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The section reads: “A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election – (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in the Federation and the FCT.”
Shortly after INEC declared Tinubu winner on March 1, Atiku, Obi, and their parties went to town, accusing the electoral umpire of constitutional breach.
They claimed that INEC should not have declared Tinubu elected when he did not score 25 per cent of the votes in Abuja.
Is that the interpretation of Section 134 (2)? If a candidate wins in all 36 states but fails to get 25 per cent in FCT, will that count against declaring him validly elected?
The PEPC answered both questions in the negative. The five-man panel of Justices held that FCT is like a state and cannot enjoy a “special status”.
Upholding the PEPC’s position, the apex court asked rhetorically: “Are you saying if someone scores 25 per cent of votes in 30 states, but not in Abuja, he should not be President? Is that how you interpret the law? That is not the law. The Supreme Court agrees with the court below.”
The court said the framers of the Constitution did not intend that FCT should be conferred with a special status, adding if that was their intention, they would have stated it expressly.
“The Constitution is for everyone and not for some selected people,” Justice John Okoro, who read the lead judgment, declared.
With that proclamation, the highest court in the land settled the Abuja conundrum. In future elections, it will be taboo to talk of winning 25 per cent of votes cast in FCT before a candidate can become president.
Atiku did everything to make his appeal succeed. But it was all to no avail. His fishing expedition to the United States (US) for “after-discovered evidence” came to naught.
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Although he came back with a deposition by Caleb Westberg, the Registrar of Chicago State University (CSU), the alma mater of the President, the apex court said the trip was an exercise in futility.
The court held that issues not raised at the court of original jurisdiction could not be brought up on appeal.
That, it said, would amount to going out of the record of proceedings compiled at the lower court for adjudication on appeal.
According to Justice Okoro, the Supreme Court lacks the jurisdiction to admit new evidence. The appellant’s application, he said, was also against the provisions of the Electoral Act, which governs election petitions.
Election petitions, he said, were sui generis (of their own class) and must be handled strictly within the special laws created for resolving such disputes.
“There cannot be any amendment by introducing new facts not contained in the election petition as stated in Section 132 (7) of the Electoral Act,” Justice Okoro said.
He said the deposition could not be brought in at this stage because it was not submitted at the PEPC, which heard the original petition within the 180 days stipulated by law.
“We cannot activate Section 22 of the Supreme Court Act to admit fresh evidence. We cannot grant the leave sought. There is no paragraph in the petition alleging forgery. It is not in the interest of justice to admit the deposition,” the Justice added.
In his concurring judgment, Justice Emmanuel Agim pointed out that the deposition which was made in a lawyer’s office before a stenographer had no seal.
Besides, being a document obtained outside the country, it was not registered locally before the appellants sought to tender it. The deposition failed all known legal tests of integrity, he noted.
He explained that it did not bear the signature of a notary public, but was said to have been sworn to in a court in Chicago.
The deposition was, therefore, rejected because it was not canvassed at the PEPC.
The court declared that the appellants failed to perfect their pleadings despite having additional 21 days to do so after frontloading them.
It said the appellants sought to ambush the respondents by bringing fresh issues at a stage that the defendants could no longer reply.
“The purpose of the 21 days is not to bring in fresh evidence but to enable the petitioner (now appellant) to respond to new claims arising from the respondent’s reply to the petition.”
The apex court said this while agreeing with the PEPC for ignoring the testimony of Mr Enahoro Ebah whom Atiku’s lawyers cross-examined even when he was not listed as a witness in the petition, details of which they frontloaded.
Ebah, in his testimony, alleged that Tinubu forged the certificate he submitted to INEC. He claimed that the diploma certificate the CSU gave Tinubu on request was different from what the President presented to INEC.
His testimony was set aside because he was not listed by the petitioner as one of his witnesses.
In the lucid verdict of the Supreme Court, hailed by political watchers last night, the Justices said the issue of not uploading the outcome of the election in real-time on the INEC Result Portal (IReV) was not illegal. Although it noted that the action was capable of making the public lose confidence in the process as INEC had promised to upload the results as announced at the polling units, it said it was not enough to invalidate the election. Agreeing with PEPC, the apex court said the results could be collated manually in accordance with the provisions of the Electoral Act.
The appellants failed to prove how INEC did not comply with the law in collating the result, the court added.
“The appellant did not produce any original or certified true copy of the evidence it wants the court to rely on.
“The Electoral Act empowers INEC to determine the best method to use during the election. The IReV portal is not a collation system, even though it is part of the election process.
“The failure of IReV does not mean that the collation of results must stop. The non-availability of the presidential election results on the IReV portal did not invalidate the election,” the seven-man panel of Justices declared.
The court said the failure of the appellants to provide results to back up their claims of winning the election was fatal to their case. It said the only results before it were those provided by INEC and they showed that the second respondent (President Tinubu) scored the highest number of votes and was declared winner.
It added that only polling agents who witnessed what transpired at polling units could testify as to what happened there and not third parties who could only narrate what they were told.
This, the court said, was hearsay evidence which is not admissible under the Evidence Act.
It said the appellant’s lawyers were tardy and not diligent in the prosecution of their cases, dismissing as a dry joke their claim that the PEPC was not a tribunal for presidential election disputes.
