Legalpedia Citation: (2023-10) Legalpedia 79478 (SC)

In the Supreme Court of Nigeria

Holden At Abuja

Thu Oct 26, 2023

Suit Number: SC.CV/937/2023

CORAM

John Inyang Okoro Justice, Supreme Court

Uwani Musa Abba Aji Justice, Supreme Court

Mohammed Lawal Garba Justice, Supreme Court

Ibrahim Mohammed Musa Saulawa Justice, Supreme Court

Adamu Jauro Justice, Supreme Court

Tijjani Abubakar Justice, Supreme Court

Emmanuel Akomaye Agim Justice, Supreme Court

PARTIES

1. MR. PETER GREGORY OBI
2. LABOUR PARTY

APPELLANTS

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. SENATOR BOLA AHMED TINUBU
3. SENATOR SHETTIMA KASHIM
4. ALL PROGRESSIVES CONGRESS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, ELECTION PETITION, EVIDENCE, PRACTICE AND PROCEDUR

SUMMARY OF FACTS

The Independent National Electoral Commission (INEC), the 1st Respondent herein, conducted the presidential and National Assembly Elections in Nigeria on 25/2/2023. The 1st Appellant, who was sponsored by the 2nd Appellant as its Presidential candidate, as well as the 2nd and 3rd Respondents, who were sponsored by the 4th Respondent as its Presidential and Vice-Presidential candidates, contested the Presidential election, along with other candidates. At the end of the election, the 1st Respondent returned the 2nd Respondent as the duly elected President of the Federal Republic of Nigeria, with 8,794,726 votes. The 1st Appellant came third with 6,101,533 votes, behind Abubakar Atiku of the People’s Democratic Party (PDP), who came second with 6,984,520 votes. Dissatisfied with the result of the election, the Appellants filed this Petition on the 20th of March, 2023, challenging the outcome of the election on the grounds that the 2nd Respondent was at the time of the election not qualified to contest the election, the election of the 2nd Respondent was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2022 and that the 2nd Respondent was not duly elected by majority of the lawful votes cast at the election.

After hearing the witnesses called by parties to the Petition and considering the addresses of their respective counsel, the lower Court dismissed the Petition and affirmed the 1st Respondent’s declaration of the 2nd Respondent as the winner of the Presidential election conducted on 25th February, 2023 and the duly elected President of the Federal Republic of Nigeria.

The Appellants were miffed with the Judgment of the lower Court and they therefore instituted the instant appeal.

The 2nd and 3rd Respondents filed a notice of preliminary objection seeking to strike out certain reliefs and grounds of the appeal.

HELD

Appeal dismissed

ISSUES

1. In view of the circumstances of the appellants’ appeal before this Honourable Court and the settled position of the law on the subject, whether this Honourable Court will not grant the reliefs sought on the face of this Notice of Preliminary Objection? (Preliminary Objection)
2. Whether having regard to the provisions of Sections 131(c), 137(1)(d) and 142(1)and(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) [herein after 1999 Constitution], Sections 31 and 35 of the Electoral Act, 2022 and the evidence before the Court, the learned Justices of the Court of Appeal were right when they held that the 2nd and 3rd Respondents were qualified to contest the Presidential Election of 25 February 2023?

RATIONES DECIDENDI

PRELIMINARY OBJECTION – THE PURPOSE OF A PRELIMINARY OBJECTION

A preliminary objection is only raised to the hearing of the appeal, and not to a few grounds of appeal. The purport of preliminary objection is the termination or truncation of the appeal in limine. A Preliminary Objection should only filed against the hearing of an appeal and not against one or more grounds of appeal when there are other grounds to sustaining the appeal; which purported Preliminary Objection is, therefore, not capable of truncating the hearing of the appeal. In such a situation, a preliminary objection is not the appropriate procedure to deploy against defective founds of appeal when there are other grounds, not defective, which can sustain the hearing of the appeal. See Per EKO, JSC, in AJUWON & ORS V. GOVERNOR OF OYO STATE & ORS (2021) LPELR-55339(SC) (PP. 4-5 PARAS. D). – Per U. M. Abba-Aji, JSC

CRIMINAL CONVICTION – DUTY OF A PARTY CLAIMING CRIMINAL CONVICTION TO PROVE SAME

What matters always in this kind of situation is that there must be proof of such a sentence. A criminal conviction and sentence must be proved by the CTC of the Judgment of Court delivered or any admissible way of proving same and the said Judgment must reflect all the ingredients of a valid Judgment to bind the parties concerned.  – Per U. M. Abba-Aji, JSC

PROOF – REQUIREMENTS FOR PROVING A CRIMINAL CONVICTION

By virtue of Section 135 of the Evidence Act, it is beyond peradventure that the proof of this allegation ought to be beyond reasonable doubt. Section 249 of the Evidence Act clearly prescribes the manner of discharging this proof, by the provision of “certificate purporting to be given under the hand of a police officer” from the US, “containing a copy of the sentence or order and the finger prints of the 2nd Respondent or photographs of the finger prints of the said 2nd Respondent, together with evidence that the finger prints of the person so convicted are those of the 2nd Respondent. See PML (NIG.) LTD. V. F.R.N. (2018) 7 NWLR (PT. 1619) 448 AT 493. – Per U. M. Abba-Aji, JSC

SENTENCE – WHERE THERE IS AN ALLEGATION OF A FINE

On the allegation of sentence of fine against 2nd Respondent, this Honourable Court in JONATHAN V. FEDERAL REPUBLIC OF NIGERIA (2019) 10 NWLR (PT. 1681) 533, held that “there is no need to prove any crime in forfeiture of property under Section 17 of the Advanced Fee Fraud & Other Related Offences Act, as civil forfeiture is a unique remedy which rests on the legal fiction that the property, not the owner is the target”. – Per U. M. Abba-Aji, JSC

APPEAL – WHEN AN APPEAL BECOMES AN ABUSE OF COURT PROCESS

…it is an abuse of the Court process to bring an appeal on an issue that has been settled by the Court – Nyame v. FRN (2021) 6 NWLR (pt. 1772) 4 (SC). – Per M. L. Garba, JSC

ACADEMIC ISSUE – MEANING OF AN ACADEMIC ISSUE – CONDUCT OF COURTS TO ACADEMIC ISSUES

A suit is academic where it is merely theoretical, makes empty sounds, and of no practical value to the plaintiff even if Judgment is given in his favour.

An academic issue or question is one which does not require answer or adjudication by a Court of law because it is not necessary to the case on hand. An academic issue or question could be a hypothetical or moot question. An academic issue or question does not relate to the live issue in the litigation because it is as it will not enure any right or benefit on the successful party.

Per NIKI TOBI, JSC @ 35 paragraphs D-H, PLATEAU STATE VS. AG. FEDERATION (2000) 3 NWLR (pt. 976) 346; OGBONNA VS. PRESIDENT FRN (1997) 5 NWLR (pt. 504) 281; HON. EKEBEDE UCHENNA VS. PDP & ORS SC/CV/148/2023; Judgment delivered on 03/3/2023 (unreported). – Per I. M. M. Saulawa, JSC

ELECTION – DISQUALIFICATION TO CONTEST AN ELECTION FOR THE OFFICE OF THE PRESIDENT ACCORDING TO SECTION 137(1)(d) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)

…Section 137(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) which provides thus:

“(1) A person shall not be qualified for election to the office of President if-

(d) he is under a sentence of death imposed by any competent Court of law or Tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any Court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a Court or Tribunal.”

There is no gainsaying that the above provision will only serve to disqualify a person on whom a sentence of fine was imposed after conviction resulting from a criminal trial. – Per Adamu Jauro, JSC

CIVIL FORFEITURE – THE EFFECT OF A CIVIL FORFEITURE

It is trite law that a civil forfeiture is a unique remedy that does not require conviction or even a criminal charge against the owner of the money. A civil forfeiture does not qualify as a fine or punishment for any unlawful activity so the argument that it qualifies as a fine for an offence involving dishonesty or fraud is not correct. – Per I. M. M. Saulawa, JSC

ELECTION – THE STATUTORY/CONSTITUTIONAL REQUIREMENTS TO BE SATISFIED FOR A CANDIDATE TO BE DECLARED DULY ELECTED

1. 134(2) of the 1999 Constitution provides that

“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 Federal Capital Territory, Abuja.”

It is obvious that states of the Federation and the Federal Capital Territory, Abuja were lumped together as a group by Subsection (2)(b) above. What differentiates the constituents of the group is their names and nothing more. One of them is called Federal Capital Territory and the rest called States of the Federation. Subsection(2)(b) clearly refers to two-thirds of all the constituents of the group enumerated therein as the minimum number from each of which a candidate must have one-quarter of the votes cast therein. There is nothing in Subsection (2)(b) that requires or suggests that it will not apply to the areas listed therein as a group. The argument of learned SAN that the provision by using the word “and” to conclude the listing of the areas to which it applies has created two groups to which it applies differently is, with due respects, a very imaginative and ingenious proposition that the wordings of that provision cannot by any stretch accommodate or reasonably bear. If S. 134(2) of the 1999 Constitution intended that the Federal Capital Territory, Abuja should be distinct from States of the Federation as a distinct group it would not have listed it together with States of the Federation in (b). Also, if S. 134(2) had intended having one-quarter of the votes cast in the Federal Capital Territory Abuja as a separate requirement additional to the ones enumerated therein, it would have clearly stated so in separate paragraph numbered (c). It is glaring that S. 134(2) prescribed two requirements that must be cumulatively satisfied by a Presidential candidate in an election contested by not less than two candidates, before he or she can be deemed duly elected President. It prescribed the first requirement in (a) and the second one in (b). It did not impose a third requirement and so there is no (c) therein.

​The Constitutional or statutory requirements to be satisfied for a candidate to be declared elected must be the ones expressly and clearly prescribed in the Constitution or statute as the case may be. A requirement that is not expressly and clearly prescribed cannot be assumed or implied to exist under any guise. Since S. 134(2) or any other part of the 1999 Constitution did not expressly and distinctly prescribe that a Presidential candidate must have not less than one-quarter of the votes cast in the Federal Capital Territory, Abuja as a third requirement additional to the two expressly prescribed, before he or she can be deemed duly elected as President, it is not a requirement for election to that office.

The grouping of Federal Capital Territory, Abuja with States of the Federation in S. 134(2) (b) of the 1999 Constitution so that the provision can apply to them equally is consistent with the tenor and principle of the 1999 Constitution treating the Federal Capital Territory, Abuja as a State of the Federation. This is clearly stated in S.299 of the 1999 Constitution thusly-

The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; and accordingly –

(a) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the Courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the Courts which by virtue of the foregoing provisions are Courts established for the Federal Capital Territory, Abuja;

(b) all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and

(c) the provisions of this Constitution pertaining to the aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this Section.”

Even though words are most often prone to different meanings and even very simple words can be differently understood, the words of S. 134(2)(b) cannot accommodate or support or bear what learned SAN for the appellants proposed as its meaning. Such meaning would result in a situation where a Presidential candidate that has the highest votes cast in the election and not less than one-quarter of the votes cast in not less than two-thirds of 36 States of the Federation or in all the States of the Federation cannot be deemed duly elected as President because he did not have one-quarter of the votes cast in the Federal Capital Territory, Abuja. This certainly violates the egalitarian principle of equality of persons, votes and the constituent territories of Nigeria, a fundamental principle and purpose of our Constitution. Such a meaning is unconstitutional. I think that his said proposition is the result of reading those provisions in isolated patches instead of reading them as a whole and in relation to other parts of the Constitution. Reading and interpreting the relevant provision as a whole and together with other parts of the Constitution as a whole is an interpretation that best reveals the legislative intention in the relevant provision. – Per I. M. M. Saulawa, JSC

CONSTITUTION – CONDUCT OF COURTS AND PARTIES IN INTERPRETING THE CONSTITUTION

Sir Vahe Bairannian (Former Justice of the Supreme Court of Nigeria) in his book Synopsis 2 stated thusly-

“Any document to be rightly understood must be read as whole. According to Lord Coke “It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the same statute; for that best expresseth the meaning of the makers … and this exposition is ex visceribus actus.” (from the bowels of the statute). Reading it through helps also in gathering its object. An effort must be made to understand it as a harmonious whole.”

​Courts across jurisdictions have, through the cases, laid down the conceptual tools that should be used in the application of constitutional provisions and in the process evolved the principled criteria upon which the interpretation of the Constitution must proceed. Just as the criteria for the interpretation of statutes differ between statutes according to the subject matter of each statute, the criteria for the interpretation of statutes and other documents must be different from those for the interpretation of the Constitution because of its sui generis nature as the fundamental and supreme law of the land, an organic document and a predominantly political document. Therefore it must be interpreted in line with principles suitable to its spirit and character and not necessarily according to the general rules of interpretation of statutes and documents. One of the principles suitable to its sui generis nature is that it must be given a benevolent, broad, liberal and purposive interpretation and a narrow, strict, technical and legalistic interpretation must be avoided to promote its underlying policy and purpose. In interpreting the part of the Constitution providing for elections to public offices in a constitutionally established democratic culture, the Court must do so on the basis of principles that give the provision a meaning that promotes tine values that underlie and are inherent characteristics of a democratic society. – Per I. M. M. Saulawa, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitutionof the Federal Republic of Nigeria 1999 (as amended)
2. Electoral Act, 2022
3. Evidence Act, 2011
4. Advanced Fee Fraud & Other Related Offences Act

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