Continues from last week
On issue one which covers the first two issues formulated by the petitioners, Olanipekun (SAN) said both Atiku and PDP had failed to make any case that Buhari was not qualified to contest the presidential election and that the allegation that Buhari submitted affidavit containing false information of fundamental nature was meaningless as no court would grant any relief that is not precise, certain, definitive and capable of being enforced. The two other respondents—APC and the INEC, agreed with Olanipekun’s submission.
The trio individually argued that the claim of the petitioners, in the first place, constituted pre-election matters actionable within 14 days of the occurrence of the event as stipulated in section 285(9) of the 1999 Constitution (As Amended) and that the petitioners failed to commence the action within the time allowed by law and as such the court lacked the jurisdiction to adjudicate on the grounds.
But assuming without conceding that the tribunal is not persuaded by the preliminary objection, the trio argued that Buhari was actually qualified to contest the election for more reasons than one including that Atiku himself eulogised Buhari in 2015 expressing every confidence in his qualification and that constitutionally, the question of tendering certificate does not arise as all that the relevant constitutional provisions: section 131(d) and 318 of the 1999 Constitution demand is education up to school certificate level or its equivalent.
They argued that section 318(1) of the 1999 Constitution as amended gives INEC the discretion to accept any other qualification, be it primary school, or vocational certificate from any institution.
They argued that the petitioners have no locus to challenge the qualification of Buhari as it is only INEC that can complain and that in the instant case, INEC cleared Buhari to contest in 2003, 2007, 2011, 2015, and 2019 elections, meaning that the qualification he submitted has always been acceptable to INEC.
They argued further that Buhari, alongside other documents, tendered a verified statement signed by the Vice Chancellor of Cambridge attesting to the fact that he sat for School Certificate Examination in 1961at Provincial Secondary School, Katrina where he passed five subjects. They argued that the evidence before the court show that Buhari fulfilled the requirement of section 131 (d) read together with section 318(1) of the 1999 Constitution.
They said the accusation that Buhari submitted false information in breach of section 38(1)(e) of the Electoral Act 2010 is a serious criminal allegation which the petitioners must prove beyond reasonable doubt as required by section 135(1) of the Evidence Act 2011 but that the petitioners failed woefully to prove it.
On issue two relating to 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, the trio again dismissed the claims as baseless and useless.
The trio of Buhari, INEC and APC argued that where a petitioner alleges that an election was marred by over voting, underage voting, ballot stuffing, thuggery, impersonation and wrongful deduction of petitioner’s votes, it must be sufficiently and satisfactorily proved as required by section 135 (1) of the Evidence Act 2011 which the petitioners woefully failed to do.
They said instead of satisfying the requirements of the law, the petitioners led scanty evidence through only 62 witnesses in their efforts to prove irregularities in a total of 119, 973 polling units, 8809 wards and 774 local government areas and local area councils cutting across the Federation when the laws required the petitioners to prove their allegations in each of the polling units alleged and that the negligible few that gave evidence were not the units or polling agents of the wards, LGAs and states.
They said only 5 polling units’ agents gave evidence out of 119,973 polling units being challenged, urging the court to hold that the petitioners abandoned their pleadings and should be struck out.
On issue three relating to 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, the trio of Buhari, INEC, and APC again argued that the failure by Atiku and his political party to prove all the grounds in their joint petition to invalidate Buhari’s election would naturally mean that Atiku could not have been validly elected as president.
The tribunal which took its time to take both oral and documentary evidence, review addresses filed by parties, rejected the invitation by the petitioners to invalidate President Buhari’s electoral victory.
In the lead judgment by the Chairman of the tribunal, Justice Mohammed Garba, he held: “I have no doubt in my mind that the petitioners have failed to prove that the second respondent does not possess the qualification to contest the election into the Office of the President as stipulated in section 131, 137 and 138 of the Constitution.
“I am also of the firm view that the petitioners have failed to prove that the second respondent submitted false information which is fundamental in nature to aid his qualification to contest the election into the Office of the President as prescribed in section 35(1) of the Evidence Act, 2011.
“The onus rests squarely on the petitioners to prove their assertion that the 2nd respondent does not possess the educational qualification to contest the election or that he submitted false information which is fundamental in nature to aid his qualification.
“This I have mentioned that the petitioners failed to prove. The petitioners cannot, therefore, rely on any failure in the case.”
The tribunal also held that technological facilities like card readers, transmission of election results via server were strange to the country’s laws.
In another instance on whether Buhari was duly elected by majority of lawful votes or not, the panel said the 62 witnesses called by the petitioners, including Osita Chidoka, could not prove the existence of the server but merely relied on ‘assurances given by the INEC chairman Professor Mahmoud Yakubu and Aviation Minister and press statement by INEC National Commissioner Festus Okoye’.
The judge said that the reliance of the Kenyan ICT data analyst, David Ayu Njorga, relied on results from the website said to belong to a whistleblowing staff of INEC to arrive at his position of the 18,356,732 to Atiku and Buhari’s 16,741,430 votes, was from an “incredible, anonymous and unidentified source.”
He said the second data analyst, Joseph Gbenga, who testified that Atiku won in the 11 states he analysed the electronically transmitted results, did not know what Form EC8As are, saying “he is not an expert.”
Earlier, the tribunal had partially upheld the preliminary objections by the respondents challenging the non-joinder of Vice President Yemi Osinbajo, the Chief of Army Staff, IGP, and DG DSS by Atiku and PDP as parties in the suit over their alleged role in electoral violence and malpractice in the election.
The tribunal consequently held “In the final result, for the reasons set out in this judgment, I have come to the inevitable decision and conclusion that the petitioners have not proved any of the grounds contained in Paragraph 15 of the petition as required by the law.
“For failure by the petitioners to satisfactorily discharge the burden or onus of proof placed on them by the law, this petition is liable to be and is hereby dismissed in its entirety,” he added.
Victory for Nigerians, Buhari says
Reacting to the judgment, President Buhari said the victory is for Nigerians who trooped out to overwhelmingly elect him for a second term in office.
“Good conscience fears no evil report. I was unperturbed all along, because I knew Nigerians freely gave us the mandate. We are now vindicated,” the president was quoted as saying in a statement by his media aide Femi Adesina.
Atiku rejects judgment, hands over tribunal judges to God for judgment
Former Vice President and presidential candidate of the Peoples Democratic Party, (PDP), Atiku Abubakar in a statement said the verdict of the tribunal though was discouraging, he said he has handed over the judges to God even as he said that he still believed he could get justice at the apex court.
He consequently said that he would take advantage of constitutional provision to pursue his case against President Muhammadu Buhari to a logical conclusion.
PDP rejects verdict
The Peoples Democratic Party (PDP) also rejected the judgment describing it as provocative, barefaced subversion of justice and direct assault on the integrity of the nation’s justice system.
PDP in a statement issued by its National Publicity Secretary, Kola Ologbondiyan, said it finds as “bewildering that a court of law could validate a clear case of perjury and declaration of false information in a sworn affidavit, as firmly established against President Muhammadu Buhari, even in the face of incontrovertible evidences.
The court raked up all manners of excuse to make up for the yawning gaps occasioned by the total absence of any evidence from the respondents.
The PDP also described as shocking that the court approved the flawed declaration of President Buhari as the winner of the election despite evidence to show the perpetration of illegalities, manipulations, alterations and subtraction of valid votes freely given to Atiku Abubakar by Nigerians.
“The PDP however encouraged Nigerians to remain calm and not to lose hope or surrender to despondency or self-help, saying: “Our lawyers are upbeat in obtaining justice at the Supreme Court”.
Judiciary on trial – Ozhekhome
Also rejecting the verdict, a Senior Advocate of Nigeria and one of Atiku/PDP counsel, Mike Ozhekhome said ‘Nigerian judiciary is on trial’ in term of independence and intimidation from the executive and legislative arms of government.
“A lot of things are wrong with the judgment, including “poor evaluation of evidence, non-evaluation of evidence, misplacement of exactly what the case of the petitioners is. The fact that certain provisions of the Electoral Act being misinterpreted and misapplied, there is so much to appeal against.
“At the Supreme Court, there will be seven very, very good heads that will hear the appeal from here. There is no question about that; we will appeal this judgment,” he said.
APC mocks PDP over judgment
Basking in the euphoria of the moment, the ruling All Progressives Congress derided the opposition Peoples Democratic Party and its presidential candidate, Alhaji Atiku Abubakar, over the judgment of the Presidential Election Petitions Tribunal.
The APC National Chairman, Adams Oshiomhole boasted that the PDP would always lose to the ruling party even if it took its petition to the World Court.
“The Supreme Court of Nigeria is not that of the PDP or the APC. The Supreme Court is governed by law and it’s to interpret the evidence before the Court of Appeal. They are not at liberty to introduce new issues, neither can they bring in new witnesses.
Umegboro dissects judgment
A public affair analyst, Charles Umegboro said the judgment was sound.
According to him, appraising the poll verdicts demands legal reasoning and critical-thinking in determining if justice is actually done as adumbrated by Lord Hewart CJ in the Appeal Court in R v Sussex Justices, ex- parte McCarthy (1924) – “Not only must justice be done; it must also be seen to be done.”
To do this profoundly, the two contentions which bothered on Buhari’s eligibility to contest elections without the school certificate and also the purported polls results tracked from the Commission’s server which the court refused to accept are germane. Convincingly, the two are the major causes of actions.
Seriously, the contentions vis-à-vis education qualification ought not to be stretched too far to the Court of Appeal as it is settled ab initio.
In fact, it isn’t supposed to go beyond a village square as Part IV of the 1999 Constitution (FRN) as amended which serves as the Interpretation Act crystal clearly dealt with it in a simple language.
From it, it is noteworthy that issues bothering on education qualification as far as general elections are concerned are exclusive duties of the Commission as it is statutorily clothed with discretionary powers to even go beyond certificate holders for all elective offices including office of the President.
By implications, a candidate or political party lacks powers to challenge another on the ground of academic qualification as long as it meets the satisfaction of the Commission. This may sound witty but that is the law.
Section 318 (1) (supra) provides, “In this constitution, unless it is otherwise expressly provided or the context otherwise requires – “School Certificate or its equivalent” means (a)a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or (b) education up to Secondary School Certificate level; or(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 the Independent National Electoral Commission for a minimum of ten years.
And (ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling 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 the Independent National Electoral Commission, and (d) any other qualification acceptable by the Independent National Electoral Commission.”
These provisos show clearly that the Constitution is broadminded and extremely accommodating on the issue.
Apart from the statutory provision above, the court is clothed with powers to reasonably take judicial notice of Buhari’s status in the Nigerian Army as a retired major general in government’s payroll to determine his eligibility vis-à-vis education up to school certificate level. Judicial notice enables a judge to accept a fact without the need of a party to prove it through evidence on account of notoriety: things of common knowledge.
On the purported results tracked from INEC server which was the basis for the botched action to upturn the election victory in favour of Atiku and PDP, indeed, it sounds absurd in the sense that a serious contention should have been anchored on original results obtained, recorded and signed by all accredited party-agents alongside designated INEC officials at the polling units accordingly.
As a matter of fact, the results authenticated by accredited party agents supersede any results found anywhere whether in the server or INEC records.
Thus, any results that are inconsistent with the one duly signed by all the party agents are invariably shams. To leave the results from the polling units and accept whatever data inputted by someone in the server is not a robust action.
Instructively, in manual elections, the results from polling units are the primary evidence of scores unlike online voting that the server is a primary source.
Thus, where results in the servers don’t correspond with scores obtained at polling units in a manual election, it shows the server’s data were manipulated.
Holistically, the verdicts are profound and distinctively anchored on points of law accordingly instead of emotions and sentiments. Thus, I bow to your Lordships.
