By Kenneth Okonkwo

The Supreme Court (SC) delivered its judgment on the 26th day of October, 2023 in Abuja, on the appeal against the judgement of the Presidential Election Petition Court, brought before it by the Appellants, whose petition was dismissed by the Court of Appeal (COA), sitting as the trial court, for lacking in merit. The SC equally dismissed the appeal against the judgment for lacking in merit. The decision of the SC raised some substantial issues of law that urgently need to be addressed in order to entrench and deepen our democracy the more. We must note however that, according to Section 235 of the 1999 Constitution, as amended, the judgment of the SC is final and no appeal shall lie to any other body or person from any determination of the SC.

The SC delved extensively on the appeal brought before it by Atiku Abubakar and simply dismissed the appeal brought before it by Peter Obi, on the premise that its judgment on Atiku’s appeal covered every issue presented by Obi. Unfortunately, this assumption made by the SC resulted in the omission by the Court in taking any decision on the first leg of issue 4 as presented by Peter Obi and Labour Party. In paragraph 4:18 of their Brief of Arguments, the Appellants stated “One of the grounds upon which the Appellants challenged the qualification of the 2nd Respondent to contest the Presidential Election in paragraphs 28-32 of the Petition (at pages 9-11, vol. 1 of the ROA) is that “he was fined the sum of $460,000.00 (Four hundred and Sixty Thousand United States Dollars). for an offence involving dishonesty, namely narcotics trafficking imposed by the United States District Court, Northern District of lIlinois, Eastern Division, in Case No: 93C 4483”; and therefore, disqualified by Section 137(1)(d) of the 1999 Constitution (as amended) which provides in clear and unambiguous words that: ”A person shall not be qualified for election to the office of President if-(d) “He is under a sentence of … fine for any offence involving dishonesty or fraud (by whatsoever name called) or for any other offences imposed on him by any court or tribunal”. In support of their argument, the Petitioners stated the principle of law as settled by the COA and SC that “A civil forfeiture is a unique remedy which does not require conviction or even a criminal charge against the owner” and “a Court Order imposing a forfeiture of money for prohibited offence relating to drugs, is a sentence”. See paragraph 4:21 of their appeal.

A blanket sweeping of this issue under the carpet under the assumption that all the issues presented by Obi have been overtaken by the issues presented by Atiku therefore was not decided based on law. The position of the law is that a court must decide and pronounce on every issue presented by a party to the court, one way or the other. It did not happen in this case and by the principle of law that every judgment must be delivered in public and once a court delivers its judgment, it becomes functus officio, especially with the time bound nature of election petition cases, this issue may never be resolved again on this appeal. I was personally in court and listened to the lead judgment as presented by Justice John Inyang Okoro, and concurred to by the other six Justices, from the beginning to the end, but did not hear any pronouncement on this issue. This judgment, therefore, is incomplete and may remain so perpetually. The lesson here is that courts must treat every appeal in its own right in a consolidated petition and not assume that all parties presented the same issues for consideration. This is important to avoid any impression on the people that the non-pronouncement on this issue was deliberate to shortchange the Appellants and not hear Obi’s appeal on merit.

The next issue was whether the electronic transmission or transfer of polling units results on election day is mandatory or discretionary. The SC upheld the decision of the COA that it’s discretionary not mandatory on INEC to transmit electronically. Let us admit that it’s the prerogative of courts to interpret the laws, however, it is concerning when the courts claim, as the SC claimed, that there were no express laws that mandated INEC to electronically transmit polling units results from the polling units in real time on election day for the purpose of using them to guide collation officers during collation, in the face of avalanche of such provisions. Indeed, the whole idea of the enactment of the 2022 Electoral Act is to introduce the technology of electronic transmission of election results. Every Nigerian was aware how the National Assembly passed the first Bill without including the electronic transmission of results and President Buhari withheld his assent to the Bill, on the insistence of the Nigerian people, until the National Assembly amended the Bill to include the electronic transmission of results before the Bill was passed into an Act. The only discretion given to INEC was in the choice of the electronic device they may wish to use for the electronic capturing, storage, and transmission of the polling units results data in real time on election day, which they made the choice of the Bimodal Voter Accreditation System (BVAS).

Let us note that the Electoral Act (EA) did not make provision for “electronic collation of results” and this article is not suggesting that. Electronic collation of results implies the use of an electronic device to add the polling units results during collation to produce a collated result. INEC is not mandated to do this, but there’s nothing in the Act that forbids INEC from doing that. What the Act forbids is collating and announcing unverified manual results from the polling units without comparing them with the electronically transmitted polling units results captured, stored and transmitted with the BVAS from the polling units into the collation system and uploaded unto the IREV portal for the whole world to view to ensure their correctness and enhance their credibility. See Sections 47, 50, 60(5), 64(4) of the EA and Clauses 38(i)(ii)(iii), 48(a), 50(v)(xx), 53(xii), and 54(xii) of the INEC’s Regulations and Guidelines for the Conduct of Election, 2022. Even the SC admitted that the abdication of this duty by INEC reduced the confidence of the people in the election.