In Nigeria, almost all the results of elections are challenged in court. The former Chief Justice of Nigeria, Justice Olukayode Ariwoola, lamented that Nigeria is the most litigious nation on earth. He failed to appreciate the fact that the only reason this is so is because there’s no certainty in law in Nigeria. The judiciary has destroyed the basis of the separation of powers in Nigeria, by which, the judiciary is not allowed to make laws, but to interpret it wherever the provisions of the law are clear and unambiguous, especially with regards to electoral matters.
The judiciary now makes laws on the bench using their discretion to decide cases rather than interpreting the laws in accordance with the wordings of the law. With this mindset, every politician recognises that law is not certain, so even knowing that he doesn’t have a good case in an election petition, he still files one, believing that there might be some compliable judges who can be influenced to award him victory, despite the clear stipulations of the law.
Also, some politicians whose mandates were obviously robbed by the Independent National Electoral Commission (JNEC) understand that going to court may not rewrite the wrong even if it was an open robbery by INEC. We all witnessed in Nigeria how Senator Lawan didn’t contest for the primary election of his senatorial seat. In fact, he was openly contesting for the presidential ticket of his party, the All Progressives Congress (APC) same period the senatorial primary election was going on in his state. Mysteriously, the Supreme Court held that Senator Lawan was the right candidate for the senatorial election. Bashir Machina, who was openly deprived the senatorial ticket called it an open robbery. The effect of this is that whether a politician has a good case or a bad case, he will go to court, because he knows that the law does not rule in Nigeria, rather it’s the discretion of the judges that rules.
We note that the exercise of judicial discretion, according to Dworkin, would offend against the democratic principle according to which a community should be governed by individuals who are elected by and responsible to the majority rather than by judges who are neither elected nor responsible to the electorate. Dworkin also pointed out that if judges have a discretionary power to make new law in the process of deciding novel cases, this will result in the “new law” being applied retroactively to the facts of the case at bar; the consequence of this will be that “the losing party will be punished, not because he violated some duty he had, but rather a new duty created after the event.”
As one of the lawyers that represented a presidential candidate in the presidential election petition in 2023, I was flabbergasted when the Supreme Court neglected, failed, or refused to adjudicate on the appeal by the Labour Party presidential candidate on the premise that its judgement on the appeal by the presidential candidate of the PDP had covered all the issues in the appeal of the LP candidate.
Hear the Supreme Court in its lead judgement by Justice Inyang Okoro: “In this appeal, issues 1, 2, 3, 5, 6 and 7 have been resolved in appeal No. SC/CV/935/2023 – Abubakar Atiku & anor v INEC & 2 ors earlier this morning. Being similar issues in the sister appeal, they shall abide the outcome of Atiku’s appeal. They are accordingly resolved against the Appellants. My Lords, as for issue No. 4 which has to do with double nomination of the 3rd Respondent, Senator Shettima Kashim, which issue was not in the earlier appeal alluded to above, it is my view that this court having settled the issue in Appeal No. SC/CV/501/2023, – PDP vs INEC & 3 ors delivered on 26th May, 2023, it is unnecessary to re-litigate the matter again in this court. It is in the interest of justice that there must be an end to litigation. It is also in the interest of the parties and society. Thus, the appellants are bound by our decision in SC/CV/501/2023 alluded to above. On the whole, this appeal lacks merit and is hereby dismissed. I shall make no order as to costs. Appeal Dismissed.”
So conclusively, Labour Party’s appeal was not considered at all because the Supreme Court was of the opinion that it was unnecessary to consider the appeal.
This is despite the fact that the two appeals were completely different on issues determined. Labour Party’s appeal had the issues of the forfeiture of €419720.56 which was proceeds of narcotics trafficking brought against the 2nd Respondent, Bola Tinubu; the requirement of obtaining 25% of the votes in the Federal Capital Territory as condition to be declared the winner; the interpretation of Section 73 of the Electoral Act which nullifies the election if INEC fails to comply with it; the more than 18,018 polling units results that were not reflected on the INEC IREV Portal which signified that election results in the polling units were not factored in during collation of results; and many others which were not part of the issues contained in the PDP’s appeal. Most of the issues in the PDP’s appeal as stated in the judgement were not part of the Labour Party’s issues.
The Supreme Court, adopting the judgement of the Court of Appeal, held that subpoenaed witnesses cannot give evidence if they were subpoenaed after 21 days within which to submit their witness statement on oath. The only thing INEC needs do to kill someone’s petition is to hide documents and witnesses for 21 days and the petition is dead. The Supreme Court held that INEC was not under obligation to transmit electronically the election results from the polling units and it wasn’t mandatory to use electronically transmitted results for the collation of results. This completely destroyed the Electoral Act 2022, which was hinged on the technological innovation of electronic transmission of polling units results to a collation system to be used for collation of results, in order to remove the evil of unrestricted inflation of manually collated results.
The most unfortunate ruling of courts is the total frustration of section 137 of the Electoral Act which provides that “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.” This provision was not made subject to the provisions of the Electoral Act. It does not contradict any provisions of the Electoral Act. The language is simple, clear, and unambiguous.
The intention of the lawmakers in making this provision is to save the petitioner the trouble and expense of assembling the polling unit agents in all the more than 176,000 polling units nationwide within 21 days, to write witness statement on oath, and bring them to court within five weeks, which is impossible, to prove non-compliance with the provisions of the Electoral Act in the whole country.
Unfortunately, the courts are trying very hard to destroy this wonderful provision of the Electoral Act by still insisting that despite presenting certified true copies of INEC documents, oral witnesses must still be called to speak to the document. Even the Evidence Act preserved the sanctity of documentary evidence by ruling out the possibility of using oral evidence to contradict any written evidence. From the way the judges are going, I pray they will not demand that claimants of rights in a deed of assignment will be required to go and bring the ghost of a deceased assignor or assignee to speak to the deed of assignment to confirm that they executed the documents.
In Kenya, the election Tribunal takes about two weeks to one month to deliver judgement because the electoral management body is required to present all the evidence in court and the parties will address the court on the matter and judgement delivered before swearing in the winners of election. In Nigeria, even with 180 days, long after the winners had been sworn in, the courts do not deliver satisfactory judgements because of using their discretion to deliver judgements not in accordance with the law.
Also, the provision of section 73 is very clear that if INEC fails to record the inventory of all the sensitive materials used in an election, that election is invalid. Again, the provision of this section is clear and unambiguous. INEC alone has access to this document and can only be the organisation that can provide it in court. If INEC fails to provide this, the court’s only duty is to invalidate the election. Blaming the petitioner for not presenting such documents in court, or pushing the burden to prove that such documents existed or not on the petitioner is standing logic on its head and asking for the impossible. Unfortunately, the Supreme Court took such positions during the 2023 presidential elections.
The Edo gubernatorial election was decided on the 2nd of April, 2025 where the Election Tribunal validated the pronouncement of INEC that the election was won by Senator Monday Okpebholo, candidate of the All Progressives Congress, not Asue Ighodalo, candidate of the People Democratic Party, on the premise that PDP dumped documents on the court. In other words, didn’t bring witnesses to court to speak to the document.
Strictly speaking, there is nothing like documentary hearsay because the law, when the Oputas and the Eshos were on the Bench, was that the documents speak for themselves. This decision came despite the allegation by the PDP that form EC 25B (akin to breaching section 73) was not made available by INEC which ought to invalidate the election.
All in all, the electoral jurisprudence has been overthrown in Nigeria today if the present position of the courts is maintained. The legislature must rise up and strengthen the Electoral Act to exclude the exercise of arbitrariness and discretionary powers by judges so that their true intentions in promulgating Electoral Act 2022 will be achieved. The opposition parties must device methods to protect the sanctity of their votes in order that Nigerians do not lose hope in voting for them because nobody finds it interesting to waste his time and resources voting for a politician and be told that his votes will not count due to technical glitch.
