Atiku Vs Buhari: The Tortuous Journey to Presidential Election Tribunal Judgment

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Alex Enumah

The legal battle at the Presidential Election Petition Tribunal began on February 27, 2019, after the Independent National Electoral Commission (INEC) declared candidate of the All Progressives Congress (APC), General Muhammadu Buhari (Rtd), as winner of the presidential election conducted on February 23, 2019.

The electoral umpire had declared Buhari who polled 15,191,847 votes as against Atiku’s 11,262,978 winner of the election having scored majority of the lawful votes cast in the presidential election.

But Atiku and his party were not satisfied with the decision of INEC, accusing the Commission of rigging in the election to favour Buhari and his party, the APC.

According to them evidence obtained from the INEC’s central server revealed that they and not Buhari and APC won the February 23 presidential election.

Consequently, they lodged a formal complaint before the Presidential Election Petition Tribunal set up to handle all grievances relating to the presidential polls.

Though the petition was filed on March 18, 2019 within the 21 days required by law, hearing in the petition however did not commence until May 8, 2019.

The hearing was further delayed for nearly one month, owing to the application by Atiku and PDP asking the chairman of the five member panel and President of the Court of Appeal, Justice Zainab Bulkachuwa, to recuse herself from the panel on allegations of likelihood of bias towards them.

At the end, Justice Mohammed Garba of the Lagos Division of the Court of Appeal was drafted to head the tribunal almost midway to the lifespan of the tribunal.

A pre-hearing session commenced on June 11 and ended on July 3 after parties had agreed on the modalities and structure of the trial, while the main trial commenced on July 4 with the petitioners tendering exhibits in support of their various claims.

It should be noted that outside Atiku and the PDP, other presidential candidates who also filed petition against Buhari’s victory at the poll include Chief Ambrose Owuru and his party, Hope Democratic Party (HDP), Jeff Ojinka, and his party Coalition for Change (C4C) and Pastor Aminchi Habu and his party, Peoples Democratic Movement (PDM).

While the C4C and PDM had withdrawn their petition against Buhari, the petition of the HDP was last month dismissed for being incompetent and lacking in merit.

Habu and Ojinka in their separate petitions before they were withdrawn had prayed the tribunal to nullify the election of Buhari on grounds of alleged massive rigging of the February 23 presidential election as well as substantial non compliance with the provisions of the law by the electoral umpire, while Owuru on his part sought the nullification of the election on the grounds that the February 23 presidential election was illegal, null and void since INEC’s shifting of the polls earlier slated for February 16 to 23 did not have the backing of the law.

Atiku in his petition specifically asked the tribunal to disqualify Buhari as winner of the February 23 presidential election, on the grounds that he (Buhari) did not possess the requisite academic qualification to contest for the office of President.

The petition, premised on five grounds, alleged that Buhari lied about his academic qualification as well as schools attended in his form 001 submitted to INEC for purpose of contesting the 2019 presidential election.

While Atiku and the PDP in grounds 1-3 of their petition specifically attacked the conduct of the February 23, presidential election conducted by the Independent National Electoral Commission (INEC), they asked the tribunal on grounds 3-5 to disqualify Buhari on the grounds that he was not qualified to have contested the election in the first place and as such all votes accredited to him by INEC should be declared as wasted votes.

In arguing their case, the petitioners called in 62 witnesses and tendered plethora of documents including video evidence to prove their claims.

While Buhari called in only 7 witnesses and tendered few documents in defence of his victory at the polls, INEC and the APC rather chose to rely on the testimonies made by the petitioners’ witnesses during their cross examination.

In their final address filed on August 14, through their lead counsel, Dr Levy Uzoukwu SAN, the petitioners asked the tribunal to nullify the election of President Buhari since they had been able to adduce evidence to the fact that Buhari was not qualified to have contested the presidential election in the first place.

Besides, the petitioners insisted that they had proved all allegations contained in their petition against the conduct of the February 23 presidential election by the Independent National Electoral Commission (INEC).

According to them, five major issues for determination by the panel include; Whether Buhari at the time of the election was not qualified to contest the election.

“Whether Buhari submitted to INEC affidavit containing false information of fundamental nature in aid of his qualification for the said election.

“Whether from the pleadings and evidence led it was established that Buhari was duly elected by majority of lawful votes cast at the election.

“Whether the presidential election conducted by INEC on February 23 was invalid by reason of corrupt practices and,

“Whether the presidential election conducted by INEC on February 23 was invalid by reason of non compliance with the Electoral Act, 2010 as amended, the Electoral Guidelines 2019 and manuals issued for the conduct of the election.”

In their 43 page final address, Atiku and PDP claimed to have established the fact that Buhari does not possess the requisite academic qualification for the position of President of Nigeria.

The petitioners argued that even Buhari’s own witnesses under cross examination admitted to the fact that Buhari did not possess a school certificate, being the basic requirements for contesting for the office of the president.

“We therefore submit that all the purported evidence led by the 2nd respondent (Buhari) to prove that he attended a secondary school or a primary school or that he attended some courses, is irrelevant because he did not rely on any of those purported qualifications in exhibit P1, he relied on primary school certificate, WASC and Officer Cadet.

“Equally futile is his attempt to prove that he can speak and write in the English language. That is all irrelevant to his inability to produce his primary school certifcate, secondary school certifcate or WASC and his Officer Cadet qualification, whatever that means. Officer Cadet is not a qualification or certificate under the Constitution and Electoral Act; nor is it known to any law.

On the purported Cambridge University certificate tendered by Buhari before the tribunal, the petitioners asked why, “it was easier for Buhari to go all the way to Cambridge in the United Kingdom to obtain a bogus documents that his own witnesses said was not a certificate, instead of just driving down the street in Abuja to the Army Headquarters or placing a phone call to the Secretary of the Military Board in Abuja to hurry over with his certificate or certificates.”

Still on the Cambridge University documents, the petitioners submitted that, “A comparison of the purported Cambridge Assessment International Education Certifying Statement of the purported West African Examination Council (WAEC) certificate and a certified true copy of the purported confidential result sheet of the University of Cambridge West African School Certificate of 1961 for the Provincial Secondary School, Katsina reveals many discrepancies in the suppose result.

“One listed 8 subjects that the candidate therein mentioned one ‘Mohamed Buhari’ allegedly sat for, the other 6 subjects, both documents are therefore unreliable as both cannot be correct. The contradiction must count against the 2nd respondent.

Another false claim by Buhari, according to the petitioners is that he attended, “Elementary School, Daura and Mai Aduwa 1948-52”. Elementary School Daura is totally different from Mai Aduwa, their locations are totally different. He also claimed he entered Middle School Katsina in 1953, however, the petitioners submitted that by 1953, the Middle School system had been abolished in the northern region of Nigeria.

On the claim that his certificates were with the military, the petitioners submitted that Buhari failed woefully to prove the claim, “rather the petitioners’ evidence to the contrary was not contested nor challenged.

It was also argued by the petitioners that they had successfully proved that the Nigerian Army had denied being in possession of Buhari’s alleged certifcates.

“One of the strongest evidence on the issue was given by the second respondent’s own witness, RW1, General Paul Tafa, (Rtd), who under cross examination by the 1st respondent (INEC), told the court firmly and unequivocally that the Army did not collect the certificates of military Officers and added, ‘there was no such thing”.

On the issue of rigging and non compliance with the Electoral Act, the petitioners said with the plethora of evidence tendered and witnesses called they have been able to show to the tribunal that Buhari’s election was invalid.

They added that analysis of results from 11 states showed how INEC in connivance with Buhari and the All Progressives Congress (APC) wrongly and unlawfully credited Buhari with votes not valid or lawful.

According to them documents tendered before the tribunal showed huge discrepancies between collated results as contained in the tendered Certified True Copies of forms EC8A and polling units.

They further alleged that a total of 2,906,384 votes were cancelled across the country, while 2,698,773 Nigerians were disenfranchised.

They said the two figures when added exceeded the 3,928,869 differential between the votes as stated in INEC form EC8E.

In addition they said they have led evidence to show that INEC violated its own regulations and guidelines with respect to mandatory use of the smart card reader in the process of accreditation which according to them occasioned over voting thereby rendering the election null and void.

They therefore prayed the tribunal to grant all the reliefs sought for in their petition.

However, Buhari on his part argued that he was more qualified to contest the polls than Atiku.

He insisted that he did not just possess the requisite academic qualification for the position of President of the Federal Republic of Nigeria but by both education and training surpasses Atiku.

Buhari in his final written address challenged Atiku to present his educational credentials and certificates.

Buhari in the final written address dated and filed August 7, 2019 by his lead counsel, Chief Wole Olanipekun SAN, submitted that, “The first petitioner, who has made and continues to make a mountain out of the molehill of an otherwise irrelevant issue, has failed, refused and neglected to tender or produce any educational certificates of his.

“The form CF001 which he claimed in paragraphs 18&19 of his reply to Buhari’s reply has not been tendered before this honourable court”.

Besides, the president submitted that he met the necessary constitutional requirements to contest for the office of President and as such the tribunal should dismiss Atiku and PDP’s petition for being incompetent, frivolous and a waste of the precious time of the court.

According to Olanipekun, there are just three major issues for determination by the court, the first which borders on whether the petitioners have been able to make any case that Buhari was not qualified to contest the February 23 presidential election and or submitted false information to INEC in his form CF001.

“Considering the pleadings of the petitioners and the arid evidence preferred by them whether the Petitioners have not woefully failed to prove any of the allegations of non compliance with the provisions of the Electoral Act, corrupt practices and that Buhari was not duly elected by majority of lawful votes cast at the presidential election held on February 23, 2019.

“Considering the feeble case presented by the petitioners before the court whether the court can decree that Atiku was duly and validly elected as president of the Federal Republic of Nigeria at the presidential election held on February 23, 2019.”

Olanipekun who noted that the three issues raised for determination covered all the reliefs sought by the petitioners, argued that the 62 witnesses and tendered documents by the petitioners all failed to prove their case against Buhari’s victory in the February 23 presidential polls.

According to the senior lawyer, the relief sought as regards alleged false information to INEC was meaningless since it did not say what the petitioners wanted, adding that it is not the business of the court to grant a relief not sought.

He also stressed that failure of the petitioners to call witnesses to support their claims that Buhari submitted false information to INEC to aid his qualification for the presidential poll affected the petition negatively.

According to Olanipekun, the petitioners witnesses rather than assist the petitioners, supported the respondent claim that he was qualified to have contested the election. “What else does one need to establish the fact that the respondent was/is eminently qualified to contest the election, than the evidence of PW1, a former close aide to the respondent who has confessed falling out with him”, he asked.

In further support of Buhari’s qualification for the presidential polls, Olanipekun submitted that section 131 of the Constitution provides that a person shall be qualified for election into the office of President if, “He has been educated up to at least secondary school level or its equivalent”.

He cited section 318 of the Constitution to explain what it means to be educated up to Secondary School level: A Secondary School Certificate or its equivalent or grade 11 Teacher’s Certifcate or its equivalent, the City and Guilds certificate or

(b) education up to Secondary School Certificate level

(C) Primary Six School Leaving Certificate or its equivalent and (I) service in the public or private sector in the federation in any capacity acceptable to INEC for a minimum of 10 years and

(ii) attendance at courses and training in such institutions as may be accepted to INEC for periods totaling up to a minimum of one year and

(iii) the ability to read, write, understand and communicate in the English Language to the satisfaction of INEC,

Any other qualification accepted by INEC.

Olanipekun submitted that apart from Buhari’s witnesses who all attested to his qualification to contest the poll, the petitioners’ witnesses during cross examination attested to the fact that Buhari addressed the nation in English Language when he was Military Head of State between 1983 and 1985 and when he was Head of the Armed Forces of Nigeria.

He therefore urged the tribunal to dismiss the petition for lacking in merit, substance and bona fide.

“In the annals of election proceedings in Nigeria, this particular petition has been the most starved in terms of evidence, whether oral or documentary. The petitioners also woefully failed to appreciate that this honourable court does not wrought miracles but decides cases according to law and not based on sentiments”, he submitted.

According to Olanipekun, none of the petitioners’ witness was able to identify Buhari’s purported form CF001 said to have contained false information submitted to INEC.

In support of his claim that the petitioners fail to adduce any cognisable evidence in support of their petition, Buhari wondered why the petitioners called just five polling unit agents out of the 119,973 polling units they said were created for the general election.

Apart from accusing the petitioners of dumping documents on the court, the petitioners were also accused of abandoning the issue of over voting raised in their petition.

Presenting his final address, Atiku and PDP, led by Dr Levy Uzuokwu SAN, said the respondents instead of defending the claim by the petitioners that Buhari failed to provide proof of any of the three certificates he claimed to possess, dwelled on the issue of whether the President can speak the English language or not.

According to Uzuokwu, the mere fact that artisans on the streets of Nigeria can speak English language does not make them qualified to contest the office of President of Nigeria.

The senior lawyer stressed that since they have led evidence to show that Buhari lied on oath in his form CF001 submitted to INEC for clearance to contest the February 23 presidential election, the tribunal should uphold the petition and grant the reliefs contained therein.

The petitioners drew the attention of the court to a portion of his INEC form where he claimed to have three different certificates; comprising Primary School leaving certificate, WAEC certifcate and Officers Cadet certifcate.

The petitioners said it was shocking and surprising that, “No Provisional certificate, no certified true copy of the certificates, no photocopy of certificates and in fact no electronic version of any of the certificates was presented by Buhari throughout the hearing of the petition to dispute the claim of the petitioners.

“More worrisome is the fact that Buhari’s own witness Major General Paul Tafa Rtd, who joined the Nigerian Army with him in 1962 told the tribunal that they were never asked to submit their certificates to the Nigerian Army Board as claimed by Buhari in his form CF001.

“At any rate the Secretary of the Nigerian Army Board, Olatunde Olaleye, had in a statement clarified that Buhari had no single certificate in his personal file with the Nigerian Army”.

The former Vice President informed the tribunal that the claim of Buhari that he can read and write in English language as enough qualification for him was of no moment because ordinary artisans on the streets of Nigeria can also do so, adding that a grave allegation bordering on certificate was not addressed by Buhari as required by law.

The PDP presidential candidate also faulted the claim of INEC that it had no central server, adding that server is a storage facility which include computer, database of registered voters, number of permanent voter cards and election results amongst others are stored for references.

He said the claim by INEC that it had no device like server to store information, “is laughable, tragic and a story for the dogs”.

Atiku’s lawyer in the final address debunked the claim of INEC that collation and transmission of results electronically was prohibited by law in Nigeria.

He asserted that by Electoral Amendment Act of March 26, 2015, the use of electronics became law and was officially gazetted for the country, adding that section 9 of the Act which made provision for electronic collation of results replaced section 52 which hitherto prohibited the use of electronics and which INEC erroneously held that electronic results transmission was prohibited.

He therefore urged the tribunal to uphold the petition and nullify the participation of Buhari in the election on the grounds that he was not qualified to have stood for the election, in addition to malpractices that prompted his declaration as winner of the election.

However, INEC represented by Yunus Usman SAN, urged the tribunal to dismiss the petition with substantial cost because the electoral body conducted the election in total compliance with the Nigerian constitution and Electoral Act 2010 and urged the tribunal to dismiss the petition.

Usman insisted that INEC did not transmit election results electronically because doing so was prohibited by law and that the Commission did not call any witness because there was no need to do so.

In his defence, President Muhammadu Buhari, through his counsel Chief Wole Olanipekun SAN, argued that Atiku’s petition was liable to be dismissed because it was lacking in evidence, merit and substance and that the petition was ill advised and signified nothing.

Olanipekun cited section 131 of the Constitution which stipulated a minimum of secondary school attendance to qualify for election in Nigeria, adding that Buhari cannot go beyond that and that he does not need to tender or attached certificate before he can get qualification for any election.

He averred that there was nothing in law to persuade the tribunal to nullify the February 23 presidential election as pleaded by Atiku and urged the tribunal to dismiss the petition with substantial cost.

The APC represented by Prince Lateef Fagbemi SAN, in his own submission said the petition lacked quality evidence that could warrant the nullification of the election as pleaded by the petitioners and urged the tribunal to throw out the petition as long as its hand can do with huge cost.

Fagbemi told the tribunal that the petitioners called 62 witnesses only in a failed attempt to prove their allegations concerning 119,793 pulling units, 8, 809 wards and 774 local government areas and local area councils being challenged by the petitioners.

He added that the witnesses were from 11 states only including the FCT. Fagbemi further argued that the allegations of non accreditation, invalid votes, deliberate depletion of petitioners vote, anomalies, over voting, wrongful collation of results in favour of Buhari and APC as well as corrupt practices had been effectively denied by the two respondents as being unfounded and non existent.

Fagbemi contended that the failure to call witnesses across the states of the federation by the petitioners to establish their allegations as envisaged by law was fatal to the petition and made it liable for dismissal by the tribunal.

However the Tribunal Chairman after taking submissions from all parties announced that judgment in the petition had been reserved and that the date for its delivery would be communicated to parties. The judgement was delivered Wednesday with the tribunal dismissing the petitions seeking the disqualification of Buhari on the grounds that he did not possess the requisite qualification for election into the office of the President and that the elections were rigged by INEC in favour of Buhari.