Chuks Okocha and Alex Enumah in Abuja
The Supreme Court will on Wednesday hear the appeal of the candidate of the Peoples Democratic Party (PDP) in the February 23 presidential election, Alhaji Atiku Abubakar, against the judgment of the Presidential Election Petitions Tribunal that
affirmed the election of President Muhammadu Buhari.
The hearing would be coming nearly 50 days after the tribunal’s verdict which affirmed the return of Buhari for a second term in office and nearly 40 days after Atiku and the PDP filed their appeal seeking to nullify the judgment and be declared lawful winners of the presidential poll.
Though the apex court is yet to make public the exact date hearing will commence and list members of the panel, however, THISDAY learnt that the hearing is billed to commence on Wednesday.
A senior lawyer in the matter in a text message yesterday confirmed to THISDAY that the apex court had constituted the panel that will hear Atiku and PDP’s appeal against Buhari’s election.
“It has been constituted and the case to be heard this week,” he said in response to a question on the position of the appeal.
PDP’s Official Twitter page also confirmed the development yesterday.
The tweet reads, “Breaking News! The Supreme Court of Nigeria has scheduled to hear the Appeal of the @OfficialPDPNig and @atiku / @PeterObi, arising from the judgment of the Appeal Court, on Wednesday, October 30, 2019. It’s time to #RescueNigeria.”
Although members of the panel are not yet made public, it is believed that the apex court would not deviate from the norms of nominating the most senior justices into the panel.
In the order of seniority, those, who might make the panel are the Chief Justice of Nigeria (CJN), Ibrahim Mohammad Tanko, Justices Bode Rhodes-Vivour, Mary Odili, Musa Datijo, Sylvester Ngwuta, Kayode Ariwoola and Kudirat Kekere-Ekun.
Only last week the National Judicial Council (NJC) had recommended four Justices of the Court of Appeal for elevation into the Supreme Court.
However, their elevation subject to the consent of the president and the Senate has to some extent put to rest concerns in some quarters about alleged moves to include in the panel justices that might do the bidding of a party in the suit.
The delay in constituting the panel as well as hearing the appeal proper had raised serious concerns in the camp of Atiku and some political groups in the country.
Only a few days ago, Atiku’s media aide, Mr. Paul Ibe, had expressed worries over the delay in constituting the panel that will hear Atiku’s appeal.
“We hope that our interest and the interest of Atiku Abubakar in this matter will not be compromised on account of time. We are concerned. We are worried about it. We do not know why it is taking this long,” Ibe had said
Similarly, a senior lawyer in the legal team of the appellants, Chief Mike Ozekhome (SAN), had noted that the worries of the appellants arose from the fact that “Election petitions are time-bound and time lined and the Supreme Court has decided that the constitutional time provided for election petitions is like the Rock of Gibraltar that cannot be moved.
“So, I believe, therefore, that the Supreme Court is much aware of their extant decision and the sensitive nature of this case which has caught the attention of not just Nigerians but the entire world. I believe that the Supreme Court will do the needful. I have no fear of that at all.”
The Atiku and PDP appeal is predicated on 66 grounds in which they urged the apex court to set aside the decision of the tribunal in its entirety on grounds that it erred in reaching the conclusion that the petitioners failed to prove their case against the respondents.
They hinged their case on grounds that Buhari lied on oath in his form CF001 submitted to INEC to aid his clearance for the presidential election.
They also alleged irregularities and substantial non-compliance with the Electoral Act and guidelines during the poll.
Respondents in the petition include the Independent National Electoral Commission (INEC), Buhari and the All Progressives Congress (APC).
In the appeal filed against the upholding of Buhari’s election by the tribunal, the appellants while claiming that the panel erred in law by holding that Buhari was eminently qualified to contest the poll, accused the panel of descending into the arena to defend the cause of Buhari in the petition.
They accused the justices of the tribunal of making use of evidence never pleaded/led at the trial by any of the respondents and sometimes credited statements to the respondents’ witnesses, which were never made.
For example, they submitted: “There was no evidence at the trial that schooling at the Military Training School was “higher than Secondary School Certificate education.
“The second respondent or any of the respondents for that matter did not lead evidence on the meaning of “officer cadet.
“The second respondent neither claimed nor led evidence that the second respondent was eminently qualified to contest.
“Contrary to the testimony of RW1 regarding the submission of his certificates to the Army, the lower court inferred that the second respondent “in fact submitted his certificates to the military.”
The appellants further argued that INEC did not lead evidence wherein it informed the court that it was satisfied with the qualification of Buhari.
Also, Buhari according to them throughout the trial did not lead any evidence to show that he successfully went through primary school, secondary school and famous military college(s) in the USA, UK and or India, whereas the lower court assumed he did.
Atiku and PDP also canvassed the argument that the tribunal justices erred in law when they relied on “overall interest of justice” to hold that Buhari’s documents were properly admitted in evidence.
According to Atiku and PDP, the said documents, which bordered around his certificates were not pleaded and were not frontloaded.
On the tribunal’s decision that Buhari does not need to attach his certificate to his Form CF 001, the appellants submitted that the tribunal gave restrictive interpretation to Section 76 of the Electoral Act 2010 (as amended) in order to exclude Form CF001 from its provisions.
The appellants said: “The conduct of election by the first respondent starts with the screening of candidates, they said “No candidate can be screened unless he completes Form CF001 (Exhibit P1).
“In Form CF001, under the column for “Schools Attended/Educational Qualification with dates”, there is the clear provision: “ATTACH EVIDENCE OF ALL EDUCATIONAL QUALIFICATIONS.”
“Certificates are evidence of educational qualifications.
“The lower court held that Buhari passed with credits in English Language, Geography, History, Health Science, Hausa and a pass in English Literature in 1961 by inference when there was no evidence throughout the trial and indeed no evidence from the school principal to the effect that the second respondent wrote or actually passed those subjects.”
In further faulting the decision of the tribunal, Atiku and PDP argued that the lower court failed to appreciate that INEC, which is a party to the petition never said that it was satisfied with the educational qualification of Buhari.
“There can be no presumption that the first respondent duly cleared the second respondent to contest the election in the face of the provision of Section 31(1) of the Electoral Act, 2010 (as amended).
“By the force of the provision in this section, it is no longer within the discretion of the commission (first respondent) to clear or not to clear any candidate presented by a political party.
“Whether or not the second respondent was cleared by the first respondent is a matter of evidence,” they said.
They are, therefore, asking the apex court to allow the appeal because the judgment of the Court of Appeal is against the weight of evidence.
In addition, they prayed the Supreme Court to set aside the judgment of the Court of Appeal, delivered on September 11, 2019 in petition NO: CA/PEPC/002/2019.
They also prayed the court to grant all the reliefs sought in the petition and declare them winner of the February 23 presidential poll or in the alternative annul the victory of Buhari and order for a fresh election.
CUPP Vows to Resist Deviation from Order of Seniority
Meanwhile, the Coalition of United Political Parties (CUPP) yesterday threatened to declare a total lack of confidence in any panel constituted in violation of the age-long order of seniority to hear the appeal.
CUPP spokesperson, Mr. Ugochinyere Imo, told reporters in Owerri, Imo State that the delay in constituting the panel was capable of compromising Atiku’s chances in the appeal.
Imo expressed worry that the Supreme Court had yet to constitute the appeal panel over 45 days since the tribunal delivered judgment on the outcome of the presidential election.
CUPP called on Nigerians to prevail on the apex court to constitute the appeal panel without any further delay.
The opposition spokesperson said the apex court had 16 days ago received all the filings on Atiku’s appeal.
He said: “The supreme Court has in the last 16 days ago fully received all the filings on our appeal and by the provisions of the constitution, the Supreme Court has on or before November 11, 2019, which is 15 days from today, to deliver judgment on the appeal of Atiku challenging Buhari’s victory.
“This development is very worrisome to the opposition political parties as critical stakeholders in the nation’s democracy.
“We insist that we shall declare a total lack of confidence in any panel constituted in violation of the age-long order of seniority.
“The apex court must be ready to be on the side of the people in saving the nation and its democracy.”