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On 9th September, 2023, Mr. Peter Gregory Obi and his Labour Party (LP) appealed against the judgment of the Presidential Election Petition Court (PEPC) at the Supreme Court containing 51 grounds of appeal.
The appeal was consequent upon the PEPC Judgment delivered on the 6th day of September 2023, which dismissed the Petition filed by Peter Obi/Labour Party “against the unlawful return and declaration of Bola Ahmed Tinubu as the winner of the presidential election held on 25th February, 2023.
The appeal is predicated on the Notice of Appeal filed in the Supreme Court of Nigeria holden at Abuja with file number SC/CV/937/2023 against petition number: CA/PEPC/03/2023 with the Independent National Electoral Commission (INEC), Senator Bola Ahmed Tinubu, Senator Shettima Kashim and the All Progressives Congress (APC) as Respondents.
In this segment, Peter Obi/Labour Party insisted that Senator Kashim Shettima did not comply with this provision and the relevant constitutional provisions, hence cannot qualify for the election as vice presidential candidate ab initio.
Peter Obi/Labour Party stated:
“Another error made by the Court below is its reliance on the evidence of RW2 and Exhibits RA8 and RA9 to water down the sting and potency of Exhibit PAS. One may ask: How could the so-called ‘expert’ opinion of RW2 and the letters written by government officials – Exhibits RA8 and RA9 – override the express pronouncements of the US District Court, which is a court of law? Even more directly, we submit that the interpretation by RW2 of Exhibit P.45 is wrong, in view of the Judgments of the US Supreme Court and this Honourable Court commended to the Court below on the meaning of a civil forfeiture, i.e. AUSTIN v. US (supra); TIMBS v. INDIANA (supra) and A.G., BENDEL STATE v. AGBOFODOH (supra). We finally submit that Exhibits RA8 and RA9, being letters written by an extra judicial body, cannot rank superior to court forfeiture proceedings, which were linked to the 214 Respondent. We respectfully urge Your Lordships to so hold. With respect, another error made by the Court below was that it accepted the Respondents’ invitation and utilised Section 249 of the Evidence Act, 2011, which provides for proof of foreign conviction in Nigeria, to dismiss the Appellants’ case and also repeated its contradictory stand that the disqualifying factor in Section 137(1)(d) of the Constitution is only a fine imposed and not a civil forfeiture. [See page 3654 of the RoA.] We submit first of all that the Appellants’ case before the Court below, as acknowledged in earlier parts of its Judgment, was based on civil forfeiture, which the same Court admitted does not require a conviction by a court of law or tribunal. We submit that Section 249 of the Evidence Act, 2011 does not deal with civil forfeiture, which deals with the procedure for proving conviction in a foreign country; hence it is not applicable to the facts of this Appeal.
With respect, the Court below also misdirected itself when it held that the Appellants’ case came under the provisions of section 137(1)(e) of the Constitution – which has placed a 10-year limitation on proof of conviction! (Sec page 3656, vol. 6 of the RoA). This was not the Appellants’ case before the Court below. The Appellants based their case on the provisions of section 137(1)(d) of the Constitution. The law is settled that both parties and the Court below were bound by the pleadings of the Appellants. See AYANBOYE v. BALOGUN (1990) 5 NWLR (Pt. 151)392 at 413 SC. We submit that Section 137(I)(d) of the Constitution is disjunctive from Section 137(1)(e) of the Constitution. Sec ABUBAKAR v. YAR’ ADUA (supra). We further submit that from the wordings of Section 137(1) of the Constitution, each of the disqualifying factors listed therein, worded differently and covering distinct and different issues and facts, cannot be read together, except if the Appellants based their case on more than one of the listed factors. See BUHARI v. OBASANJO (2005) 13 NWLR (Pt. 941) 1 SC; OJUKWU v. OBASANJO (2004) 12 NWIS (Pt. 886) 169 SC. In the light of the above, therefore, we submit that the decision of the lower Court, which foisted its opinion on the Appellants, by placing their case under section 137(1)(e) instead of section 137(I)(d) of the 1999 Constitution as amended, occasioned a grave miscarriage of justice. This Honourable Court should intervene and set aside all those findings and enter judgment for the Appellants.
On the issue of double-nomination, the Appellants challenged the qualification of the 2s Respondent to contest the Presidential Election on the ground of double-nomination of the 3rd Respondent. (See paragraphs 21-27 of the Petition, at pages 7-8. Vol. 1 of the ROA). In its Judgment, the Court below relied on the authority of PDP v. INEC (2023) LPELR – 60457 (SC) (tendered and marked as Exhibits X2 and RA23) and held that (a) the Appellants “who belong to a different political pony have no locus standi to complain about the nomination of the 3s Respondent. Hence, they cannot use same to challenge the qualification of the 2rd and 3rd Respondents…”; and (b) the Appellants did not establish their case of double-nomination of the 3rd Respondent. With due respect, the Court below misapplied the case of PDP v. INEC (supra) to the peculiar facts of this case. In the first place, the Suit/Appeal in that case was a pre-election matter, not an Election Petition like this present one on appeal. In this wise, we refer to section 134(I)(a) of the Electoral Act, 2022, which has permitted a Petitioner to challenge the qualification of a person elected in a contested election, like this present one. Without any justification, the Court below refused to follow its own previous decisions in Alt v. CHIMA (2019) LPELR-48878 (CA) and ACHILONU v. CHIMA (2019) LPELR-48837 (CA) at 6-10, wherein it had relied on the decisions of this Honourable Court and held that the issue of double-nomination as raised by the Appellants herein is an issue of qualification that can properly be brought and ventilated under 138(I)(a) of the Electoral Act 2010 (as amended), now Section 134(1)(a) of the Electoral Act, 2022. It is settled law that the issue of qualification of a candidate to contest an election is traceable to the 1999 Constitution. See OBASANJO v. YUSUF (2004) 9 NWLR (Pt. 877) at 222 SC.
By Section 1420) of the same Constitution, a Candidate for election to the office of President must nominate a Vice-Presidential Candidate; while by Section 142(2), the provisions of Section 131(c) have been made applicable to the Vice-Presidential Candidate. See A-C FEDERATION v. ABUBAKAR (2007) 10 NWLR (Pt. 1041) 1 at 172-173A-C SC. An issue of qualification/disqualification can be competently instituted as a post-election matter by a political party/candidate that contested election with the political party/candidate in default. See DANGANA v. USMAN (2013) 6 NWLR (Pt. 1349) 50 SC; FAYEMI v. ONI (2019) LPELR – 49291 (SC) at 19-240-“. Therefore, the Appellants had the locus standi to raise the issue; and the Court below was wrong to have held otherwise. On the merits of the case, the lead judgment in PDP v. INEC (supra) delivered by Jauro. JSC, with due deference, determined the issue of locus standi only and struck out the Suit. The rest of the opinions in the case were, with respect, mere obiter, and the Court no longer had the jurisdiction to determine the merits of the case AGUNSOVE v. AROJOJOYE (2023)12 NWLR (Pt. 1897) 137 at 166F-H SC; INEC v. OGBAD1130 LOCAL GOVERNMENT (2016) 3 NWLR (Pt. 1498) 167 at 196C-E SC.; AKANDE vs. JEGEDE (2022) 14 NWLR (Pt. 1849) 125 at 147F-G SC. Also, since the concurring pronouncements in PDP v. INEC (supra) were made without jurisdiction, estoppel per rem judicatam or issue estoppel ought not to apply. See F.R.N. v. IFEGWU (2003)5 S.C. 252 at 275”. It is further submitted that the issue before the Court below was not whether the concurring judgments in PDP v. IN EC (supra) relied upon by them form part of the Judgment of the Court. Rather, the issue before the Court was whether the said concurring judgments constituted obiter dicta. See AFRON-CONTINENTAL (NIG.) LTD. v. AYANTUYI (1995) 9 NWLR (Pt. 420)411 at 435 SC, where this Honourable Court held thus: “An Orbiter dictum of the Supreme Court is clearly not binding on this court or indeed on the lower courts, for obiter dicta, though they may have considerable weight are not rationes decidendi and are therefore not conclusive authority.”
Section 31 of the Electoral Act 2022 provides that: “A candidate may withdraw his candidature by notice in writing signed by him and delivered personally by the candidate to the Political Party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than 90 days to the election”; and Section 35 of the same Act provides that “where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void.” For the withdrawal to be valid in law, the events listed in Section 31 of the Electoral Act 2022 must co-exist. See EKPE v. ITANJAII (2019) LPELR-48462 (CA) at 20-25 where the Court below interpreted the same Section 31 of the Electoral Act 2022 (then Section 35 of the Electoral Act 2010, as amended) and rightly held that all the features of the provision, including the requirement that the political party shall convey such withdrawal to the commission”, must co-exist before there can be a valid withdrawal of a candidate.
The Appellants, in the instant case, established that the 3rd Respondent did not comply with this provision and the relevant constitutional provisions as the Court below rightly acknowledged in its judgment at page 3632-3633, vol. 2 of the Record.
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