ATIKU ABUBAKAR & ANOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS. (2019)

Background

This appeal arose from the 23 February 2019 Nigerian presidential election. Atiku Abubakar contested on the platform of the People’s Democratic Party, while Muhammadu Buhari contested for the All Progressives Congress. INEC declared Buhari the winner with 15,191,847 votes, while Atiku was credited with 11,262,978 votes. Dissatisfied, the appellants filed a petition before the Court of Appeal sitting as the Presidential Election Petition Court. They alleged that Buhari was not duly elected by a majority of lawful votes, was not constitutionally qualified to contest, submitted false information concerning his educational qualifications, and benefited from corrupt practices and substantial non-compliance with the Electoral Act. They also relied heavily on an alleged INEC electronic “server” which, according to their calculations, showed that Atiku had won.

The Court of Appeal dismissed the petition on 11 September 2019. The appellants appealed to the Supreme Court on five principal issues. On 30 October 2019, the Supreme Court unanimously dismissed the appeal and subsequently delivered its reasons on 15 November 2019.

Issues

1. Whether Buhari submitted false information of a fundamental nature to INEC in aid of his qualification.
2. Whether Buhari possessed the educational qualification required by sections 131 and 318 of the 1999 Constitution.
3. Whether the appellants proved that Buhari was not elected by a majority of lawful votes.
4. Whether corrupt practices and non-compliance with the Electoral Act substantially affected the election.
5. Whether documents tendered by Buhari and other respondents were properly admitted and accorded probative value.

Ratio Decidendi

The Supreme Court held that section 131(d) of the Constitution requires a presidential candidate to be educated up to at least school-certificate level or its equivalent. Section 318 defines that expression disjunctively. Consequently, a candidate need not possess every qualification listed in the constitutional definition; satisfaction of one applicable route is sufficient. Education up to secondary-school-certificate level may itself suffice, even without proof of physical possession of the certificate. The Court also accepted that other qualifications may be accepted by INEC under section 318(d).

The Court further held that neither the Constitution nor the Electoral Act required a presidential candidate to attach educational certificates to Form CF001. The evidence, including Cambridge examination records, school-related documents, military and service records, and evidence concerning Buhari’s career, was sufficient to support the finding that he was educated to the required level. The appellants failed to prove that the documents were forged or belonged to another person merely because the name “Mohammed” appeared in some records while the candidate was commonly known as “Muhammadu.”

Allegations that Buhari supplied false information were treated as criminal in character and therefore required proof beyond reasonable doubt. The appellants did not call the makers or proper authenticating witnesses for crucial documents and relied substantially on documentary material tendered from the bar. The Court stated that tendering a document is not necessarily proof of its contents; where a party seeks the court to rely on the document, its maker or an appropriate witness should speak to it and be available for cross-examination.

Court Findings

The Court rejected the appellants’ alleged server-based results. Their principal expert witness obtained the data from an anonymous website, described variously as belonging to a whistleblower, an anonymous person, or an INEC staff member. The website was not proved to be an official INEC website or connected with an INEC server. The adverse factual finding of the lower court on this point was not specifically appealed and therefore remained binding. The Court held that calculations founded on an unauthenticated and anonymous source had no probative value.

The Court also found that the appellants’ witnesses lacked direct knowledge of many alleged polling-unit events. Election results cannot ordinarily be displaced by hearsay evidence from persons who were not present at the polling units. A petitioner challenging the legality of votes must tender the relevant electoral forms and call credible eyewitnesses from the affected polling units to establish the irregularities and their substantial effect on the result.

In relation to over-voting, the voters’ register was described as fundamental because it provides the basis for comparing registered voters with votes cast. The appellants failed to tender the necessary voters’ registers and did not adequately demonstrate the relevant Forms EC8A, EC8B, EC8C and related documents. Their allegations of non-compliance, violence, intimidation, ballot stuffing, multiple voting and manipulation were therefore not proved. Under section 139(1) of the Electoral Act, non-compliance will not invalidate an election unless it substantially affected the result.

The Court further held that complaints concerning false information in Form CF001 are ordinarily pre-election matters governed by the special procedure in section 31 of the Electoral Act. An aggrieved person must bring the prescribed action before the appropriate High Court within the constitutionally stipulated period, including the relevant 14-day limitation period. The appellants did not follow that procedure. The Court also reiterated that criminal responsibility is personal, not vicarious; individuals accused of criminal conduct should be joined and given an opportunity to defend themselves.

Conclusion

The Supreme Court unanimously dismissed the appeal and affirmed the judgment of the Court of Appeal, which had upheld Buhari’s election and return as President of the Federal Republic of Nigeria. The parties were ordered to bear their respective costs.

Significance

The decision emphasises the demanding evidential burden imposed on presidential election petitioners. It confirms that election results declared by INEC enjoy a presumption of regularity until rebutted by credible, admissible and sufficiently particularised evidence. It also clarifies the constitutional meaning of “school certificate or its equivalent,” the limited significance of non-attachment of certificates to Form CF001, the need to authenticate computer-generated evidence, and the importance of calling polling-unit witnesses. The judgment equally reinforces the sui generis nature of election litigation and the requirement for strict compliance with statutory timelines and procedures.