There are lessons and pitfalls to avoid in the 1979 Supreme Court ruling in the presidential election as the case between President Muhammadu Buhari and Alhaji Atiku Abubakar lands the apex court. Chuks Okocha reports
In 1979, Chief Obafemi Awolowo challenged Alhaji Shehu Shagari’s victory in the August 11, 1979 Presidential Election.
The Presidential Election Petition Tribunal had dismissed the petition of Chief Awolowo, affirming Shagari’s election on the grounds that the Appellant’s claims that the respondent (Shehu Shagari) did not satisfy the position of the law based on Section 34 A(i)(c)(ii) of the Electoral Decree of not winning two thirds of all the states of the federation was not solid.
Then lead Judge of the Supreme Court, Justice Fatai Williams, on September 16, 1979, upheld the decision of the lower court, saying 25% of two-thirds of the votes in Kano State was 203,460.5 votes.
With the results declared by FEDECO, Shagari got 25% of the votes cast in twelve (12) states out of nineteen (19), namely: Bauchi, Bendel, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto States.
The 13th state was the issue, which was Kano State. Shagari scored 243,423 votes, equivalent to 19.4% of the 1,220,763 total votes cast in Kano State. The Supreme Court was later to direct that this decision should not be cited as precedent and even in later years, apologised for the judgment.
What are the likely implications of that judgment and the present mistakes of the Court of Appeal Presidential Elections Petitions Tribunal (PEPT) as well as the likely consequences, if any and the need to avoid them?
The Presidential Tribunal had determined two thirds of the votes in Kano by dividing the 1,220,763 total votes cast in Kano by two-thirds to arrive at 813, 842, and then declared Shagari’s votes of 243,423 in Kano as greater than 25% of the total votes cast in Kano
The 2019 Presidential Tribunal
The first ground of appeal has to do with the documents relating to the educational qualifications of President Buhari as tendered by him and admitted by the court as exhibits.
Citing the relevant provisions of the electoral act, the appellants (PDP and Atiku/Obi) contend that neither were the documents pleaded by President Buhari, nor frontloaded as legally required and as such, could not have been deemed as properly admitted by the court.
On this ground, Atiku and the PDP argued that the Court of Appeal erred in law, when it relied on the phrase: “overall interest of justice” to admit the documents and relied on it.
On another ground, there were errors raised by the appellants (PDP and Atiku/Obi) against the judgment of the presidential election petition court involving the interpretation of the INEC form in section 76 of the electoral act 2010 as amended.
The court had held that the forms referred to in the section had to do with that used in the conduct of elections and not the form (CF001), which every candidate must fill.
Here, Justice Mohammed Garba held that a candidate was not required by the constitution and the electoral act to attach his certificates to the form before he could be adjudged to possess the requite qualification to contest.
But Atiku and the PDP, in their appeal, argued that the court erred in law as the said form CF001 clearly provided a column for schools attended and educational qualifications with dates. Furthermore, in their submission, they contended that the form also contained a clear provision written: “attach evidence of all educational qualifications”.
In the particulars of error, the appellants (PDP and Atiku/Obi) highlighted that the conduct of election started with the screening of candidates and that no candidate could be screened without completing the form CF001, adding that certificates were evidence of educational qualification.
The Supreme Court has also been invited to review the conclusion of the presidential election petition court, where it held that the petitioners did not plead that President Buhari’s failure to attach his certificates amounted to lack of qualification to contest the election.
Referring to paragraphs 388-405 of the petition, Atiku and the PDP argued that they had pleaded and proved the allegation that President Buhari gave false information of a fundamental nature to INEC.
They further brought to the attention of the Supreme Court a recent judgment it delivered on the 30th of July, where the apex court interpreted the meaning and standard of proof of false information in the case involving AA Modibbo and Mustapha Usman, where the apex court sacked a serving member of the House of Representatives.
Citing the legal principle of stare decisis, the appellants (PDP and Atiku/Obi) contended that the Justice Garba-led tribunal failed to consider and apply the Supreme Court authority but merely referred to it.
Atiku and the PDP also submitted that the court of appeal’s conclusion was speculative, when it inferred that President Buhari presented his certificate to the army for documentation based on his army form 199a.
Their argument here was that, Justice Garba’s court did not rely on evidence led but by assumptions and presumptions that President Buhari possessed the certificates he claimed. They argued that common sense holds no role in proof of facts before a court, insisting that President Buhari himself failed to produce any single certificate in support of his claim.
The PDP and Atiku/Obi also described the lower courts position that President Buhari was “eminently qualified” as gratuitous and unsolicited. They submitted that the court of appeal made a case for President Buhari in which none of his lawyers made, when it referred to a newspaper publication to validate his qualification.
All Eyes on the Supreme Court
The apex court has also been invited to review the position of the Appeal Court that the petitioners dumped their exhibits on the issue of unlawfulness of votes without calling their makers to testify.
Atiku and the PDP argued that the exhibits tendered before the lower court were certified true copies of electoral documents, and being public documents, there was no need to call the makers.
Against this backdrop, the prayers by the appellants (PDP and Atiku/Obi) is that the court of appeal’s decision be set aside, and that the apex court should declare Atiku winner or in the alternative, nullify the February 23, 2019 Presidential Poll and Order a fresh election.
Therefore, one veritable way of avoiding the mistakes made over 40 years ago is to ensure that whatever decision reached in the present petition currently before the Supreme Court is built on solid grounds. By so doing, the legal jurisprudence in Nigeria would be enriched and taken to a higher bar.
