Why We Agree With Lead Judgment, By Four PEPC Justices

The Presidential Election Petition Court (PEPC) judgment of September 6 on the three surviving petitions filed against the last presidential election not only affirmed the victory of President Bola Tinubu, it did so by a unanimous decision of its five justices. ADEBISI ONANUGA and ROBERT EGBE report that while Justice Haruna Tsammani delivered the lead judgments, four others Justice Stephen Adah, Justice Misitura Bolaji-Yusuf, Justice Moses Ugo and Justice Abba Mohammed were in “full agreement.

Justice Stephen Adah

I am in full agreement with the lead judgment delivered by my learned brother Haruna Simon Tsammani, JCA in these three consolidated Petitions which are petitions No: CA/PEPC/03/2023, CA/PEPC/04/2023; CA/PEPC/05/2023.

These Petitions were filed against the election into the office of the President of the Federal Republic of Nigeria, which election was conducted in Nigeria on 25th February 2023.

I agree also with the consolidated rulings on the various objections and other interlocutory applications relating to the competence of witnesses and the documents tendered in the three Petitions.

I also agree with the reasoning and the conclusions arrived at the rulings on the preliminary objections and the substantial issues raised therein.

In any concluded Election, there are bound to be a winner and losers. While the winner celebrates victory, an aggrieved loser may come before the Court to ventilate his grievances. This is made possible by the Constitution of the Federal Republic of Nigeria 1999 (as amended) which in Section 6 empowers Courts to determine disputes, including election disputes.

It is well settled that an election Petition by nature is sui generis, of its own kind or class. It is not like going to Court to make a claim of debt, contract or tort. It has its own character and it is unique by its nature. The slightest non-compliance with a procedural step which otherwise could either be cured or waived in ordinary civil proceedings could result in a fatal consequence to the Petition.

Election Petition as a special proceeding is specifically regulated by the Constitution of the Federal Republic of Nigeria 1999, the Electoral Act and other Rules of procedure such as the Federal High Court Civil Procedure Rules and Practice Direction of the Honourable President of the Court of Appeal for the hearing of the Election Petition and the Election Petition Appeals.


By Section 285(5) of the Constitution, an Election Petition shall be filed within 21 days after the date of the declaration of result of the Election; and by Section 285(6) thereof an Election Tribunal shall deliver its judgment in writing within 180 days. These time lines are sacrosanct and cannot be extended by the Court.

It is trite that under the 1st Schedule of the Electoral Act, the election petition to be filed is well regulated. See Paragraph 4(5), (6) of the Electoral Act, 2022 which provides as follows:

“(S) The election petition shall be accompanied by- (a) A list of the witnesses that the petitioner intends to call in proof of the petition, (b) Written statements on oath of the witnesses, and (c) Copies or list of every document to be relied on at the hearing of the petition.

(6) A petition which fails to comply with subparagraph (5) shall not be accepted for filing by the Secretary.

(7) An election petition, which does not comply with subparagraph (1) or a Provision of that subparagraph is defective and may be struck out by the tribunal or Court. “

The word ‘Shall’ used in this Legislation makes it mandatory for a Petitioner to comply with that provision of the law. Failure to comply is fatal.

Election Petitions are fought on pleadings, competent and credible witnesses. Where a Petition is deficient in pleadings and evidence, it is difficult to prove the Petition. In the instant Petitions, the Petitioners’ pleadings were deficient. While they complained of non-compliance with the Electoral Act against 1st respondent, their own Petitions were massively deficient in compliance with the Act.

The lead judgment has elaborately dealt with these issues. When a Court is called upon to determine an election dispute, he is called upon to do justice. Our notion of doing justice is not that of doing justice according to the whims and caprices of the judges or the parties. It must be justice according to law. Justice according to law is also that which is neither based on technicality nor justice according to the suggestive clout of pressure groups, but such as substantially meets the demands of justice. This, with all respect, is what we have done in the lead judgment.

I therefore concur with the leading judgment that these three consolidated Petitions having not been proved are hereby dismissed.

I abide by the consequential orders as made in the lead judgment.

Justice Misitura Bolaji-Yusuf

I have read the lead the rulings and the judgments of my learned brother, HARUNA SIMON TSAMMANI, JCA in the above consolidated petitions. I agree with his reasoning and conclusion in the ruling and judgment in each petition and adopt same as mine. I add a few words for emphasis.

Ground 1 of the petition is that the 2nd respondent was, at time of the election, not qualified to contest the election. The 1st complaint under this ground is that “the purported sponsorship of the 2nd and 3rd Respondents by the 4th Respondent was rendered invalid by reason of the 3rd Respondent knowingly allowing himself to be nominated as the Vice-Presidential Candidate whilst he was still a Senatorial Candidate for the Borno Central Constituency.” The controversy about the 3rd Respondent knowingly allowing himself to be nominated in more than one constituency was the subject matter in P.D.P V. INEC & ORS (2023) LPELR- 60457(SC). The Supreme Court per OKORO, JSC, AUGIE, JSC, OGUNWUMIJU, JSC and AGIM, JSC in their concurring opinions held that the 3rd respondent having withdrawn his nomination and personally delivered the notice of the withdrawal to his party (The respondent in this petition) on 6th July, 2022, he was no longer a candidate for the Borno Central Constituency Senatorial election and his subsequent nomination as the Vice-Presidential Candidate for the presidential election was not multiple nomination.

The opinion of the Supreme Court per OKORO, JSC, AUGIE, JSC, OGUNWUMIJU, JSC and AGIM, JSC is not a comment or observation made in passing. It is an exposition of the law on withdrawal of a candidate from an election and the allegation that the 3rd respondent knowingly allowed himself to be nominated as the Vice-Presidential Candidate whilst he was still a Senatorial Candidate for the Borno Central Constituency.

The 2nd complaint is that the 2nd respondent was at the time of the election not qualified to contest for the office of the president as he was fined the sum of $460,000 for an offence involving dishonesty, namely narcotics trafficking by the United States District Court, Northern District of Illinois, Eastern Division, in Case no. 93C 4483 on 4/10/1993. The contention of the learned counsel for the petitioners is that the order of forfeiture made by the court is a fine under Section 137(1) (d) of the 1999 Constitution of the Federal Republic of Nigeria.

It is a settled principle of interpretation that where the words used in the provisions of the Constitution are clear and unambiguous, same must be given their plain and ordinary meaning unless to do so will lead to absurdity. The context in which the word “SENTENCE” is used in Section 137(1) (d) of the Constitution connotes a formal pronouncement awarding punishment after conviction for an offence. Conviction is a finding of guilt after an indictment, arraignment and trial.

Therefore, the words “sentence”, “imprisonment” and “fine” used in Section 137(1) (d) of the Constitution definitely connotes only a punishment imposed on a defendant following an indictment, trial and conviction for an offence.

In civil forfeiture or a non-conviction-based fo1eiture proceeding, the government only needs to show by preponderance of evidence that the property is a proceed of crime or was used to facilitate a crime. Criminal forfeiture on the other hand is seizure of a property connected with a crime after obtaining conviction and as part of sentence or punishment for the crime. Civil forfeiture is not a verdict of guilt after an indictment, trial and conviction.

A forfeiture order by a foreign court can only be accepted and recognized by a court in Nigeria for the purpose of Section 137(1) (d) of the Constitution if it is made after an indictment, trial and conviction and properly proved as required by Section 249 of the Evidence Act. In addition, the conviction and sentence must be shown to have been a product of due process of law. Compliance with due process of law has to be determine by the procedure and standard set by Section 36 (5) and (6) of our Constitution. The forfeiture order being relied on by the petitioners has not been shown to be a result of a process similar to the one set by our Constitution for trial of a defendant for an offence

The 3rd ground of the petition is that the 2nd respondent was not duly elected by majority of lawful votes cast at the election having not obtained 25o/o of the votes in FCT.

The interpretation of Section 134 (2) (b) of the Constitution being urged on us by the petitioners is an unjust manipulation of the Constitution to create inequality of votes. It negates the principles of Equality and Justice, democracy and social justice and participation of the people in their government enshrined in our Constitution. It strikes at the very foundation of our Constitution. It is capable of further dividing the citizens of this country. The politicians are good at using all sorts of means and sentiments to divide the citizens of this country. The interpretation being urged on us is their latest invention in that regard and unfortunately, they found a ready alliance in those who should know better. The Interpretation being urged on us is squarely against the letters and sprit of Our Constitution and it is hereby rejected.

Based on the above and the fuller reasons lucidly explained in the lead judgment, I too dismiss the petition.

Justice Moses Ugo

I had earlier read in draft the Rulings and Judgments of my learned brother Haruna Simon Tsammani, J.C.A. in this Consolidated Petition Numbers CA/PEPC/03/2023, CA/PEPC/04/2023 and CA/PEPC/05/2023. I am in complete agreement with His Lordship’s reasoning and conclusions on all of them.

First, for Petition No CA/PEPC/04/2023, I am of the very fixed view that the issues agitated by the petitioner therein concerning 3rd Respondent’s alleged disqualification for the 2023 Presidential election by reason of matters connected to and surrounding his running mate’s (4th Respondent’s) nomination and relinquishing of his earlier nomination by his party, the APC, for the Borno Central Senatorial District, having been settled on their merit by the Supreme Court in its judgment in Appeal No: SC7CV750172023. Peoples Democratic Party v. INEC & Ors in 3rd and 4th Respondent’s favour herein, with the apex court even holding that the said issues did not disqualify them, that decision constitutes issue estoppel.

In short, the allegation of the petitioners that INEC shut down its IREV to manipulate votes for 2nd Respondent just does not add up for me. If anything, the probabilities arising from the results INEC declared nationwide as X-rayed above rather seem to me to eloquently support INEC’s position that its inability to upload the polling unit results real- time as earlier promised was not deliberate but caused by technical issues outside its control that afflicted its e-transmission system, which issues it claims made it impossible for its e-transmission system to map the uploaded polling units results for the Presidential election to any specific State

Justice Abba Mohammed

I have read before now the draft of the lead judgment just delivered by my learned brother, HARUNA SIMON TSAMMANI, JCA in the three consolidated Petitions Nos. CA/PEPC/03/2023, CA/PEPC/04/2023 and CA/PEPC/05/2023. I am in agreement with and I adopt all the reasons and conclusions stated therein, both in respect of the rulings on the objections and the merits of the three consolidated Petitions.

Having also found no merit in all three Petitions Nos. CA/PEPC/03/2023, CA/PEPC/04/2023 and CA/PEPC/05/2023, I join my learned brother Tsammani, JCA in dismissing all three Petitions. I abide by the consequential orders made in the lead judgment.

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