Abubakar Atiku & Ors v. Independent National Electoral Commission (Inec) & Ors (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JOHN INYANG OKORO, JSC (Delivering the leading judgment)

This is an appeal against the judgment of the Court of Appeal (sitting as the Presidential Election Petition Court) in suit No. CA/PEPC/05/2023 and delivered on 6th September, 2023. In the said judgment, the court below substantially sustained the respondents’ objections to the petition, the petitioner’s reply to the respondents’ respective replies, the competence of witnesses subpoenaed by the petitioners and the admissibility of several documents sought to be tendered by the appellants.

After resolving all the issues in favour of the respondents, the lower court dismissed the petition for lacking in merit. Dissatisfied with the dismissal of the petition, the appellants filed notice of appeal on 18th September, 2023.

A brief fact of the case giving birth to this appeal is that election into the office of President of the Federal Republic of Nigeria was conducted by the Independent National Electoral Commission (INEC) on 25th February, 2023 wherein the 2nd and 3rd respondents emerged winners with a total of 8,794,726 votes while the appellants came second with 6,984,520 votes. Sixteen others participated in the said election.

The first respondent accordingly declared the 2nd and 3rd respondents winners of the election and declared the 2nd respondent as the elected President of the Federal Republic of Nigeria.

Aggrieved by the outcome of the election, the petitioners jointly filed a petition at the court below to challenge the outcome of the election under four grounds as follows:-

(a) The election of the 2nd respondent is invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.

(b) The election of the 2nd respondent is invalid by reason of corrupt practices.

(c) The 2nd respondent was not duly elected by majority of lawful votes cast at the election.

(d) The 2nd respondent was at the time of the election not qualified to contest the election.

The appellants as petitioners then sought the following reliefs:

1. That it may be determined that the 2nd respondent was not duly elected by a majority of lawful votes cast in the Election and therefore the declaration and return of the 2nd respondent by the 1st respondent as the winner of the Presidential Election conducted on the 25th day of February, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.
2. That it may be determined that the return of the 2nd respondent by the 1st respondent was wrongful, unlawful, undue, null and void having not satisfied the requirements of the Electoral Act, 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which mandatorily requires the 2nd respondent to score not less than one quarter (25%) of the lawful 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.
3. That it may be determined that the 2nd respondent was at the time of the election not qualified to conduct the said election.
4. That it may be determined that the 1st petitioner having scored the majority of lawful votes cast at the Presidential Election of Saturday, 25th February, 2023, be returned as the winner of the said election and be sworn in as the duly elected President of the Federal Republic of Nigeria.

In the alternative:

5. An order directing the 1st respondent to conduct a second election (run-off) between the 1st petitioner and 2nd respondent.

In the further alternative:-

6. That the election to the offices of the President of Nigeria held on 25th February, 2023, be nullified and a fresh election (re-run) ordered.
7. Any such further relief(s) as the honourable court may deem fit to make in the interest of justice.

Upon being served with the petition, the respondents joined issues with it by filing their respective replies incorporating preliminary objections and made other applications. Some of the applications filed by the parties were heard and rulings delivered at the pre-hearing stage while some were heard and rulings on them reserved till the time of the judgment of the court. On 6th September, 2023, judgments in the petition, including rulings in the applications were rendered by the court below. As I said earlier, the appellants’ petition was dismissed.