*Says because presidential election has never been nullified is not a good reason not to do so now
Alex Enumah in Abuja
Former Vice President and candidate of the People’s Democratic Party (PDP) in the last presidential election, Alhaji Atiku Abubakar, has assured the five-member panel of justices of the Presidential Election Petition Court (PREPEC), that the heavens will not fall over Nigeria, if by the preponderance of evidence before them, they were able to come to the conclusion that Asiwaju Bola Tinubu was unlawfully declared president and subsequently removed him from office.
Atiku gave the assurance in his final written address in support of his petition challenging the declaration of Tinubu as winner of the February 25, presidential election.
He was arguing against the submission of President Tinubu that nullifying the February 25 presidential election on account of his failure to secure 25% of votes cast in the Federal Capital Territory (FCT) could lead to chaos in the country’s Constitution and democracy.
“At this stage, it is pertinent to observe from the outset that the 2nd Respondent’s Final Written Address, with respect, reflects a complete misconception and unfortunate misunderstanding of the case of the Petitioners……”, Chief Chris Uche, SAN, lead counsel to Atiku and PDP said in the final address that, “a subtle threat of apocalyptic catastrophe of national chaos and anarchy if a judgment is not given in a particular manner cannot deter a Court of law from doing justice.
They insisted that, “The Court must do justice, rather “let the heavens fall”; but as courageously stated by the Supreme Court per Oguntade JSC, in the epic case of AMAECHI vs. INEC & ORS (2008) LPELR-446(SC) (Pp. 67-68 paras. D):
” I must do justice even if the heavens fall. The truth of course is that when justice has been done, the heavens stay in place.”
Besides, the petitioners urged the PREPEC to adopt a very proactive approach to its interpretation of the new laws and application of the new technologies in order not to stifle the principles of transparency and integrity, the bedrock of constitutional democracy.
They pointed out that the Electoral Act 2022, was intended by Parliament, to bring about a new regime in election management and dispute resolution, in response to the yearnings for an end to the perennial flawed election cycles, with each cycle getting worse than its predecessor.
Atiku and PDP also reminded the PREPEC of their assurance that they will prefer substantial justice to technicalities in consideration of the petitions before them,
“A fortiori, this Honourable Court will be urged to dispense with the archaic and analogue methods of proof, and embrace the progress made by technology in this new paradigm shift, improving and pushing the traditional boundaries of burden of proof in the quest to attain substantial justice”, Uche urged the panel.
The senior lawyer pointed out that given the role of technology in the conduct of this election, “there was a departure from the need to call physical witnesses from polling units”, adding that the intendment of the present technological improvements was to “discontinue with the past impossibility to call witnesses from over half or more of the 176,846 polling units nationwide, being the import of section 137 of the Electoral Act 2022 and paragraph 46(4) of the 1st Schedule thereto”.
It will be recalled that Atiku and PDP before closing their joint petition on June 23, called 27 witnesses and tendered documentary as well as video evidences to prove their case.
Uche argued that the first set of witnesses which were the petitioners’ State Collation Agents of were able to collectively established that there was deliberate non-compliance by the 1st Respondent (INEC) with the mandatory mode of transmission and collation of results.
“The next set of witnesses were Presiding Officers who participated in the conduct of the presidential election as staff of the 1st Respondent…. Their evidence unequivocally established that there was a sabotage of the transmission of results electronically, contrary to what they were prepared for at their pre-election training.
“The next set of witnesses were principal agents of the Petitioners at the election, namely PW 19, Dr. Alex Adum Ter, who was the National Co-Ordinator of the Petitioners’ National Situation Room; and PW 22, Senator Dino Melaye, who was the National Collation Agent of the Petitioners, who timeously protested the wrongful collation process of the 1st Respondent at the National Collation Centre.
“The Petitioners called their expert witnesses, namely the Statistician, PW 21, Mr. Samuel Oduntan and the Digital Forensic Analyst, PW 26, Mr. Hitler Nwala who gave technical and expert testimony in support of the Petition.
3.6 The Petitioners closed their case with the piercing evidence of PW 27, Mr. Michael Enahoro-Ebah, who tendered several documents in support of the non-qualification and disqualification of the 2nd Respondent to contest the election.
“Notwithstanding the overwhelming evidence called by the Petitioners, the 1st Respondent, who clearly mismanaged the election as shown by the evidence, chose to call only one witness, one Dr. Lawrence Bayode, the Deputy Director, ICT Department, shielding the substantive Director, Engr. Paul Omokore, who was used to replace Mr. Chima Nwafor who had designed the software for transmission of results installed on the BVAS machines.
“The said witness admitted that the technological innovation introduced by INEC through the BVAS and transmission to the IReV was to guarantee the transparency of the process and the integrity of the result. He admitted that there was a “technical glitch” that made the system fail to work. He further admitted that the Presidential and National Assembly elections were held on same day and with same BVAS machines.
“He openly admitted that at the time the result was declared on 1st March 2023, all the results had not been uploaded to the IReV. He was shown the European Union Observers Final Report, which was admitted as Exhibit RA6, and he read out the relevant portions indicting the conduct and outcome of the presidential election.
“It is instructive to note that despite the uniqueness of the new regime of election management, INEC failed to call even one field officer, or agent or staff, or any ward collation agent, or local government collation agent or state collation agent or poll officials, any of its numerous registration area technicians (Ractechs), or even the Presiding Officers (PO), Assistant Presiding Officer (APO 1, APO 11, APO 111) who handled the BVAS machines or who person who operated any aspect of the technological system including the IReV to give evidence or to even explain the nebulous “technical glitch”, Uche stated.
Arguing further, he claimed that Tinubu did not call any witness in support of his claim to victory in the election, “but only one witness, a certain Senator Opeyemi Bamidele, who claimed to be practising law in the United States of America as well as in Nigeria, and at the same time, a serving Senator, who came to speak on the qualifications of the 2nd Respondent, and admitted that the name of the 2nd Respondent is the subject of the US forfeiture judgment admitted in Court as EXHIBIT PBF1.
“He admitted that the 2nd Respondent did not score 25% of the votes cast in the FCT in the election”.
Meanwhile, the senior lawyer in the final address accused the 3rd Respondent (APC) of “abandoning its pleadings” because it did not call any witness in defence of the petition, adding that “…where a party fails to adduce evidence in support of facts pleaded, the pleadings are thereby deemed abandoned.”
It is also Atiku’s submission that the final written address of the 2nd respondent was filed in flagrant defiance of, and non-compliance with, the mandatory provisions of Paragraph 5(c) and (d) of the ELECTION JUDICIAL PROCEEDINGS PRACTICE DIRECTIONS, 2023 rendering same invalid.
“We urge your Lordships to discountenance as well as strike out the said Final Written Address for gross non-compliance”, Uche urged the tribunal.
Atiku however concluded his final address by calling on the five-member panel led by Justice Haruna Tsammani to uphold the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) at a time like this.
“As was stated by the Supreme Court, per Oguntade JSC in GOVERNOR OF KWARA STATE V OJIBARA (2007) All FWLR (Pt. 348) 864 at 877 para D:-
“I have said this much in the hope that all players in the field of politics will imbibe the culture of paying due reverence and regard to the provisions of the Constitution. This has become necessary because in these times there is unrestrained inclination to disregard the Constitution and treat its terms with irreverence and disrespect. The Constitution is the very foundation and structure upon which the existence of all organs of governance is hinged. It must be held inviolable.”
“We therefore submit with all sense of responsibility that this Nation and its Judiciary stand at the threshold of history. We submit that the fact that a presidential election has never been nullified by the Courts in Nigeria before now, is not a good reason not to do so now, as it is just to nullify the return of the 2nd Respondent and grant appropriate orders. As was eloquently put by the celebrated Law Lord, Denning MR in the case of PACKER vs. PACKER (1954) AC P.15 @ 22:-
“What is the argument on the other side? Only this, that no case has been found in which it had been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before we shall never get anywhere. The law will stand still whilst the rest of the world goes on and that will be bad for both.”
“May our law and our country not stand still, while the rest of the world goes on. As has been said, let justice be done, the heavens will not fall”.
