The presidential election petition tribunal may have passed its verdict, but it is not yet uhuru for Buhari and APC as legal practitioners praise and knock verdict, writes Alex Enumah
It is the opinion of some that the tribunal faired better in its findings and final decision while others hold the view that the judgment was without justice to several pertinent issues raised by the PDP presidential candidate in his petition filed on March 18, 2019.
Abubkar and his party, PDP had predicated their petition on five grounds revolving around; Electronic transfer of result, alleged rigging, non accreditation, over voting, invalid votes, deliberate depletion of petitioners votes, wrongful collation of results in favour of President Muhammadu Buhari and APC, as well as other corrupt practices.
The petitioners brought five issues for determination, upon which the panel said it used to arrive at its decision.
The issues are (i) whether the Buhari was at the time of the election not qualified to contest the election
(ii) whether the President submitted to the INEC affidavit containing false information of a fundamental nature in aid of his qualification for the election
(iii) whether from the pleadings and evidence led it was established that the Buhari was duly elected by majority of lawful votes cast at the election
(iv) whether the presidential election conducted by the INEC on February 23 was invalid by reason of corrupt practice
(v) whether the presidential election conducted by INEC on February 23 was invalid by reason of non-compliance with the Electoral Act 2010 as amended and the Electoral guidelines 2019 and manuals for the conduct of the election.
However, the tribunal in its judgment dismissed the petition in its entirety on grounds that the petitioners were unable to prove any of the allegations made in their petition.
In the first two issues which borders on Buhari’s qualification and alleged lying on oath, the tribunal held that Buhari was not just qualified but eminently qualified to contest the election as was proved by both documentary and oral evidence presented by the respondents.
“Second respondent has more than secondary school certificate having attended various courses. He is not only qualified, he is eminently qualified,” the tribunal said.
The tribunal further held that the petitioners failed to prove that Buhari presented false information of fundamental falsehood to INEC to aid his qualification.
On the issues of rigging, over voting and other electoral malpractices, the tribunal in dismissing it, said documents were dumped on court by the petitioners without calling on witnesses to speak on the documents thereby denying them of any probative value.
The panel further held that the number of witnesses called by the petitioners to establish the allegations of over voting and other electoral malpractices were insufficient taking into consideration the large number of polling units in the country where the election held.
Justice Garba held that the tribunal hard to discard the documentary evidence regarding alleged violent conduct by security agents in favour of Buhari because the petitioners failed to join the security agents as necessary party in the petition.
However some lawyers after a careful study of the tribunal’s verdict were of the view that the verdict of the tribunal fell short of expectations especially in view of the evidence adduced by the petitioners to establish the allegations.
Abubakar and PDP had while contending Buhari’s victory called 62 witnesses who adopted their written statement as their evidence on alleged electoral malpractices such as over voting, rigging, substantial non compliance with the electoral laws and guidelines, harassment and intimidation of agents and supporters of the petitioners in certain areas during the presidential poll.
They also tendered thousands of documents to prove their case, as well as, their claims that Buhari did not possess requisite academic qualifications to contest the election.
Among those who spoke is a Senior Advocate of Nigeria, Jibrin Okutepa, who was of the view that the tribunal faired better in view of the flaws in the electoral laws but that it summersaulted in the evaluation of documents tendered by the petitioners, especially with the refusal to give probate value to some certified true copies of the tendered documents.
Okutepa said he did not agree with the position of the justices on the point that public documents duly certified must per force be tendered by the makers before it can command evidential value.
“Why should the maker of public documents be called before it can command evidential value in our courts and in electoral justice?” He asked wondering how staff of INEC are expected to appear in court to give evidence against their employer.
“On this issue of calling the makers of public documents to tender them, it is my submission that certified copies of public documents can be tendered and acted upon in line with the decision of the court in Salami vs Ajadi (2007) LPELR – 8622 (CA), where it was decided that public documents can be tendered by the person to whom they were issued to,” he said.
The tribunal in its findings faulted some of the certified documents tendered by Atiku to question the qualification of President Buhari to stand for the February 23 presidential election.
Buhari had in his form CF 001 made on oath and used to secure clearance from INEC claimed that he possessed three certificates namely, Primary School Certificate, West African School (WASC) Officers Cadet Certificate but unlike others did not attach copies of any of the certificates to support his claim.
And to the contrary, Buhari claimed that the certificates were deposited with the Nigerian Army Board at the point of his enlistment into the Nigerian Army in 1962.
Abubakar in his petition challenged the claim of Buhari on the existence of the certificates and supported his challenge with a Certified True Copy (CTC) of a press statement by a former spokesman of the Nigerian Army, Major General Olajide Olaniyi, in which the Nigerian public was alerted that their was no single certificate in the personal file of Buhari contrary to his claim.
But the tribunal in the judgment declined to give probative value to the weighty documents of the army board on the grounds that the maker was not invited by Atiku to formally tender the documents at the tribunal and be crossed examined by lawyers to the respondents.
The tribunal also declined to give evidential value to several certified true documents, mainly election results sheets tendered by the petitioners to establish their allegations of alteration in the results sheets, depletion of votes cast for them and the deployment of electronic system to collate results.
According to the tribunal chairman, Justice Mohammed Garba, the petitioners ought to discharge the burden of proof by calling INEC workers to give evidence in respect of the documents rather than tendering them from the bar.
However, Okutepa disagreed with the tribunal on this point used in dismissing Atiku’s petition.
His stand is that it is unthinkable for any of INEC worker to appear in court and give evidence against his or her employer, adding that since the documents were certified true copies and emanated from INEC that conducted the election, the tribunal ought to have given meaning to the certified result sheets and do substantial justice to the case of the petitioners.
“It is my submission that a public document duly certified and all necessary processes followed for its certification can be tendered by the person to whom it was issued and or can be tendered from the Bar and any witness can be shown the documents to relate it to the aspect of the case for which the document was procured for. The decision that such documents must be tendered by the maker before it can command evidential value is contrary to the Evidence Act and the interest of justice.
“Election petition requires that justice be done without undue technicalities. There is no doubt that electoral atrocities being perpetuated by political hooligans has held our democracy in the jugular and this should not be further encouraged by decisions that can derail our democracy.
“In most cases INEC staff who participated in the conduct of elections are usually not seen. In some other cases most of them will not want to appear to give evidence against their employers.
“Why then do we demand that makers of INEC documents be called before weight can be attached to the documents?” he queried.
The senior lawyer, however, concluded by urging the courts to take a second look at the issue of who can tender public documents before probative value can be attached to them.
“It is therefore my contention that there is a need for our courts to reconsider their stand on the issues of who can tender certified true copies of public documents and the weight to be attached to it.
“If court cannot look at documents tendered and interpret them and making meaning out of it, then what is the duty of the court?” he asked.
However, on his part, another Senior Advocate of Nigeria, Akinlolu Kehinde (SAN), described the verdict as a well reasoned judgment, stressing that decisions of courts are not based on sentiment or public opinion.
While stating that in an election matter the burden of proof is 100 percent on the petitioners, he agreed with the tribunal that the petitioners failed to bring specific evidence and call primary witnesses.
“As a matter of fact, the Supreme Court has maintained the position in several decision that if a petition is based on the fact that the results so declared by INEC is an infraction or it is not in compliance with the Electoral Act, the petitioner must not bring generalised evidence, the evidence must be specific.
“You must bring witnesses that I would call primary witnesses, that is witnesses who participated in the process from the bottom of the pyramid that is from the polling unit level to the ward, local government and state level. They must be the witnesses that can give direct evidence. Not witnesses who will come up and say, we analyse the results, the results was given to me by my agent and all this and all that.
“No, they must be witnesses who will be able to tell the court that from A to Z of the election, this is what and what that happened. Such witnesses must also be subjected to cross examination by the respondents to be able to test the veracity of their story and not just the story being parroted by the witnesses,” he argued.
He also emphasized the need for the country to grow in her electoral processes, so as to be able to conduct free, credible and transparent elections that those who lost would be convinced and congratulate the winners.
Kehinde expressed disappointment over INEC’s performance in the last election, lamenting the huge cost of litigation both on government and litigants.
“I have always said that the responsibility of conducting a credible election rests on INEC, which is the statutory body set up to conduct election. With the avalanche of petition in the 2019 election, I will say without any fear or favour that INEC could have done better.
“People go to court when they feel they have been cheated, when they feel they have been shortchanged. The number of petition this year is too large and it is a big drain on the resources of this nation both on the government that would have to pay the judges and the litigants who have to contend and defend the results.
“So I will beg INEC again and all Nigerians that we must at every point in time do what is right and put the interest of the nation first in everything we do, not our personal interest, not our pecuniary gains. The interest and survival of this nation must be paramount in our hearts because if there is no Nigeria, none of us can call ourselves Nigerians,” he said.
One the issue of qualification, he advocated an amendment to the constitution that would raise the minimum qualification for the position of President from primary school certificate to a first degree.
Kehinde said, “If we feel that the holder of a secondary school certificate is academically inferior to lead a nation like this, let’s amend the constitution, we can amend the constitution and say that you must have a first degree, at least, before you aspire to be the president of the nation, because, honestly I am of the view that putting secondary school certificate at the threshold is a bit too low.
“To lead a nation of this magnitude, secondary school certificate is not enough.”
However, the senior lawyer while stating that the court has spoken, acknowledged the constitutional right of the petitioners to appeal the judgment if they so desired.
Abubakar and PDP shortly after the judgment of the tribunal indicated that they would appeal the decision which dismissed their petition challenging the victory of President Muhammadu Buhari.
The five man tribunal in an unanimous judgment dismissed the petition for lacking in merit and accordingly upheld the election of Buhari.
Abubakar and PDP in their joint petition filed on March 18, 2019, specifically asked the tribunal to disqualify Buhari, 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.
In their final address, Abubakar and PDP, argued that 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 Abubakar’s lawyer Uzuokwu, a Senior Advocate of Nigeria, 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 certificate and Officers Cadet certificate.
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 has no central server, adding that server is a storage facility which include computer, database of registered voters, number of permanent voter card and election results amongst others are stored for references.
He said the claim by INEC that it has 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 is prohibited.
He therefore urged the tribunal to uphold the petition and nullified 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 is 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 is lacking in evidence, merit and substance and that the petition is I’ll 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 have 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 is fatal to the petition and made it liable for dismissal by the tribunal.
However, in the lead judgment delivered by chairman of the tribunal on September 11, Justice Garba, held that the petitioners did not discharge the burden of proof and as such dismissed the petition.
Before delving into the merit of the petition, the tribunal had delivered ruling on 8 motions filed by parties in the suit.
The Independent National Electoral Commission (INEC) had filed three motions praying the tribunal to strike out the petition or in the alternative expunge certain paragraphs of the petition for being incompetent and lacking in merit.
While Buhari and the APC had filed two motions each seeking to strike out the petition, Abubakar and PDP had filed one in objection to the position of the APC in the petition.
In one of the motions, the tribunal dismissed the motion by APC seeking the disqualification of Atiku on grounds that he was not a Nigerian.
The respondents had claimed that Jada, the birth place of Atiku in 1946 was part of Cameroon and not part of Northern Nigeria.
But the tribunal in his judgment dismissed the application on the grounds that the respondents ought to have filed a cross petition against the candidature or Atiku rather than raised the issue in his reply.
On the issue of qualification, the tribunal held that Buhari does not need to show prove or attach a copy to his INEC form 001. The tribunal chairman held that the provision of the law was for the president to be educated up to secondary school level or its equivalent or worked in the public or private service for at least 10 years without blemish.
The tribunal said evidence abound that West African School Certificate (WASC) was in existence in 1961 when Buhari claimed to have sat for the examination.
Tribunal also resolved that there is overwhelming evidence on the existence of provincial secondary school in Katsina in 1961 before it later transformed into government college.
Quoting a press statement released in 2014 by brigadier general Olaleye Olaniyi, the then secretary of Army Board on Buhari’s certificate issue, the tribunal held that Abubakar failed to call the army spokesman to testify in the petition.
Justice Garba held that from the totality of the statement of the former army spokesman, there was a presumption that Buhari has certificates because the army itself produced a recommendation of the former principal of the Katsina provincial secondary school that the president stood for six subjects in WAEC and expressed optimism Buhari would perform well if enlisted into the army in 1962.
The tribunal therefore agreed that the inability of Buhari to attach photocopies of his credentials to the INEC form CF 001 should not be misconstrued as not having certificate because the petitioners failed to prove that he did not have the certificate, adding that there is no law that requires a candidate seeking election into office to attach his certificate to his form 001.
On the issue of alleged lying on oath the tribunal disagree with the petitioners on the grounds that Buhari did not swear to an affidavit to specifically make claim of depositing his certificates with the army board as envisaged by the relevant laws on election.
Specifically, the tribunal held that the fact that Buhari made claim of submitting his credentials to the army at the point of his enlistment in 1962 cannot by law translate into lying on oath as alleged by the petitioners.
The tribunal which delved extensively on the merit and otherwise of Abubakar’s petition rejected the claim that Buhari was not duly elected by majority of lawful votes cast in the February 23 presidential election.
The tribunal held that the petitioners ought to use polling booth by polling booth to give correct and authentic final election results, adding that it was not enough for Atiku and PDP to have tendered election results from the bar only but it is incumbent on them to call witnesses to establish their allegations, adding that the 62 witnesses called by the petitioners did not disprove forms EC8A, EC8B, EC8C and EC8D.
Justice Garba said that when words of statute are not ambiguous they must be given their ordinary meaning, adding that in the instant case Atiku and PDP did not establish how the use of INEC election manual and guidelines substantially affected the collation of election results as evidence adduced by petitioners’ witnesses have no bearing on the petition itself.
The tribunal held that the evidence that election results were altered, depleted and manipulated against the PDP’s candidate was caught by section 37 of the Evidence Act as they are manifestly unreliable hearsay that cannot in any way be classified as expert opinions
In the resolution of server issue the tribunal said that the petitioners were to establish the existence of a server and that results were transmitted into it through the use of smart card reader.
The tribunal also held that the petitioners could not adduced concrete evidence that the results of the election were electronically collated and transmitted as alleged by the petitioners, adding that the evidence of the petitioners expert witness contradicted the petition itself because the witness admitted obtaining his information from a whistle blower site, whose identity he could not ascertain.
One the issue of over voting, massive rigging, harassment and intimidation, arbitrary arrest, the tribunal held that failure to join the security personnel alleged to have committed the crime as respondents to defend themselves was fatal to the petition
Justice Garba in the unanimous decision held that any decision to look into the allegations will run counter to section 36 of the 1999 constitution on fare hearing.
In the final analysis the tribunal chairman held that the petition was without merit, liable for dismissal and was consequently dismissed in its entirety without cost against the petitioners.
By and large, Abubakar and the PDP have already indicated interest of proceeding to the Supreme Court hoping to reclaim, what they say is, their stolen mandate.
Attention of interested parties in this matter would now shift to the highest court in the land. Nigerians expect a more exhaustive determination of the relevant issues and interpretation of the laws.