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.
Specifically, Section 60(5) of the EA states explicitly and compulsorily that, “The presiding officer shall transfer the result including total number of accredited voters and the results of the ballot in a manner prescribed by the commission” and INEC prescribed in Clause 38(i)(ii) of INEC Regulations that, “On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission. Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IRev), as prescribed by the Commission.” It’s therefore submitted that it is mandatory on INEC to transmit and transfer the number of accredited voters and results from the polling units on election day into its electronic device, by whatever name called, used for storing and processing information, in order to secure it and prevent it from being tampered with and which can be accessible for use during collation.
Section 64(4)(a)(b) of the Electoral Act states “A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units” and “the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units”. Clause 48(a) made by INEC corroborated this Section when it stated that “An election result shall only be collated if the Collation Officer ascertains that the number of accredited voters agrees with the number recorded in the BVAS and votes scored by Political Parties on the result sheet is correct and agrees with the result electronically transmitted or transferred directly from the Polling Unit as prescribed in these Regulations and Guidelines.”
Even the SC had earlier held in Oyetola v. INEC that “the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation.” (See Page 24 of the lead judgement as delivered by Emmanuel Akomaye, JSC). It’s curious that the SC did not cite these applicable collation laws at all in its judgement. It does not appear that the decision of the Supreme Court in Peter Obi’s appeal with regards to this issue was based on extant laws and we respectfully disagree with their decision that the electronic transmission of polling units results is discretionary on INEC, because if the electronic transmission of polling units results is not mandatory, where will the collation officer get the electronic results he will use to verify the manually collated results as demanded by the Act. The Learned Senior Advocate of Nigeria, Femi Falana, drove it further by asserting that even by the doctrine of promissory estoppel, INEC, having promised Nigerians that they will electronically transmit results from the polling units to be used during collation, are enstopped from doing otherwise and we submit that the Supreme Court ought not to have held otherwise as this will destroy every technological improvement made in our elections. It’s now left to our Legislature to amend the laws to make them more specific and remove any doubt as to the intention of the Legislature on the electronic transmission of results by adding that any dereliction of this duty by INEC voids the election.