2019 Poll: Of Buhari’s victory and the legality of S’Court verdict

In this piece, Ise-Oluwa Ige traces the long and tortuous road to affirmation of President Muhammadu Buhari’s electoral victory in the February 23, 2019 presidential poll with a beyond-the-surface examination of the facts, the laws, the theatrics, the polemics and the logic that characterise the prosecution of multiple cases maintained against the gap-toothed Army General between February 27, 2019 when INEC announced his election and October 30, 2019 when the Supreme Court, with finality, upheld his victory at the poll.

On October 30, 2019, a full panel of the Supreme Court headed by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, dismissed, in its entirety, the appeal filed by the Peoples Democratic Party (PDP) and its presidential candidate, Alhaji Atiku Abubakar, which challenged the victory of President Muhammadu Buhari in the February 23, 2019 presidential election.

The apex court held that the appeal lacked merit.

The Supreme Court panel, led by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammed, specifically said it had gone through all the processes filed in the case and the accompanying exhibits for over two weeks before coming to the conclusion

The CJN however said the court would give fuller reasons for dismissing the petition on a later date to be communicated to parties.

The court gave the decision on the same day it commenced hearing in the appeal.

How the Atiku vs Buhari case started

On February 27, this year, the Independent National Electoral Commission (INEC) declared the flag-bearer of the All Progressive Congress (APC), General Muhammadu Buhari winner of the presidential election which held nationwide on February 23, 2019.

The Returning Officer for the 2019 Presidential elections and INEC Chairman, Prof Mahmood Yakubu said he declared Buhari winner of the poll having scored the highest number of lawful votes as required by section 134(2) of the 1999 Constitution of the Federal Republic of Nigeria.

Buhari had polled 15,191,847 votes to defeat 72 other candidates including his closest rival and candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar who garnered 11,262,978 votes.

As soon as INEC announced the results, few political parties and their candidates rejected the results and vowed to contest it in court.

For instance, Atiku and his party accused INEC of rigging the election in favour of Buhari and his party, the APC.

According to them, evidence obtained from the INEC’s central server revealed that they and not Buhari and APC won the February 23 presidential election.

PDP, Atiku storm Tribunal, make case against Buhari’s election

It was not surprising when the PDP and its candidate, Alh Atiku Abubakar approached the Presidential Election Petition Tribunal sitting in Abuja on March 18, 2019, with a joint petition to invalidate the electoral victory of President Buhari.

Three other political parties and their presidential candidates also filed petition against Buhari’s victory at the poll including Chief Ambrose Owuru and his party, Hope Democratic Party (HDP), Jeff Ojinka, and his party, Coalition for Change (C4C) and Pastor Aminchi Habu and his party, Peoples Democratic Movement (PDM).

While the C4C and PDM withdrew their petitions against Buhari, the petition of the HDP was pursued to conclusion.

It has since been dismissed by the tribunal for being incompetent and lacking in merit.

In the joint petition filed by the PDP and Atiku Abubakar, they prayed the tribunal to sack President Muhammadu Buhari from office and declare Alhaji Atiku Abubakar of the PDP winner of the February 23, 2019 presidential election.

They contended that President Buhari’s electoral victory should be upturned because he was not qualified to contest the February 23, 2019 presidential election by reason of his academic qualifications.

Specifically, they contended that President Buhari had lied on oath about his educational qualifications and that the president’s secondary school certificate was a forgery. Besides, they said he did not score the highest number of lawful votes cast at the election; that the results from an ‘INEC (Independent National Electoral Commission) server’ proved that the PDP candidate had won the election, that the election results were electronically transmitted to the server by INEC and that the electoral umpire blatantly manipulated the vote in favour of the incumbent president.

In the event the tribunal is unwilling to upturn Buhari’s victory and declare Atiku as president, they urged the court to nullify the entire results of the presidential poll and order a fresh election.

In the petition, they named INEC, Muhammadu Buhari and the All Progressive Congress (APC) as first, second and third respondents respectively.

The case went on trial.

On September 11, 2019, a five-member panel of the Presidential Election Petition Tribunal dismissed the petition by the Peoples Democratic Party (PDP) and its presidential candidate, Alhaji Atiku Abubakar seeking to oust President Muhammadu Buhari from office for want of merit.

That was after it took its time to take both oral and documentary evidence and reviewed the addresses filed by parties.

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 (Buhari) 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 (Buhari) 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 Buhari 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.

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, on results from the website said to belong to a whistle-blowing staff of INEC to arrive at his position of the 18,356,732 to Atiku and Buhari’s 16,741,430 votes, was of no probative value as the data were collected 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 in 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.

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The tribunal consequently held that “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.

Reactions trail judgment

Moments after the judgment, President Buhari said the victory in court was 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 said in a statement by his media aide, Femi Adesina.

But former Vice President and presidential candidate of the Peoples Democratic Party, (PDP), Atiku Abubakar in a statement said the verdict of the tribunal was a mere judgment and not justice and that he had handed over the judges who prepared the judgment to Almighty God for judgment.

He however said that though the verdict by the tribunal was discouraging, he said 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.

The Peoples Democratic Party (PDP) on its own 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.

Basking in the euphoria of the moment, 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.

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.

A public affairs analyst, Charles Umegboro however said the judgment was sound.

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.

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.

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, he said as a matter of fact, the results authenticated by accredited party agents supersede any results found anywhere whether in the server or INEC records.

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.

Atiku goes on appeal

Eventually, the aggrieved PDP and Atiku, after a thorough study of the judgment filed a joint  appeal on September 24, this year at the registry of the Supreme Court within the time allowed by law to challenge the decision of the tribunal which endorsed President Buhari’s election..

They said they believed they would get justice at the apex bench, arguing that seven ‘good heads’ are better than ‘five heads’ that decided the case at the tribunal.

Polemics over composition of S’Court panel

However, 16 days after the appeal was filed, the Coalition of United Political Parties (CUPP) raised the alarm that it had uncovered a plot by the government of President Muhammadu Buhari to alter and jettison the age-long tradition of selecting the seven most senior Justices as members of the court’s panel that would hear the presidential election petition appeal by Atiku.

The CUPP said the practice at the Supreme Court since 1979 has been to empanel seven most senior justices of the apex bench to take any appeal emanating from the decision of the Presidential Election Petition Tribunal.

The CUPP vowed to reject any move to handpick justices of the Supreme Court in violation of the tradition at the apex bench, adding that they would not have confidence in a handpicked panel of Justices to hear Atiku’s appeal.

At a press conference in Abuja addressed by CUPP National Publicity Secretary, Ikenga Imo Ugochinyere, over the issue, the group said “We have it on good authority that the All Progressives Congress APC-led Federal govt has been mounting undue pressure on the Chief Justice of the Federation and indeed the entire court to accept a handpicked panel and jettison the age-long tradition of the Court of selecting the most senior justices of the Supreme Court to sit on the panel.

Four days after the allegation was made public, the Supreme Court on October 14, denied any pressure from President Buhari-led government with a strong warning issued to the CUPP to stop peddling false information about the judiciary.

The apex court had wondered why the group would peddle such dangerous rumour about it when the Chief Justice of Nigeria was yet to set up any panel for the case.

Two days after the Supreme Court reacted, the CUPP on October 16, fired back at the Supreme Court for daring to respond to its allegation in the manner it did.

The group said the apex court would have done well by merely denying the allegation and follow it up with an assurance that it would do justice to all parties in the case.

Twenty-four hours after the CUPP attacked the Supreme Court over its choice of language in its reaction, the Peoples Democratic Party (PDP) caucus in the House of Representatives on October 17 backed the CUPP on its allegation against the Supreme Court and prepared a script for the CJN on the justices of the court that he should appoint into the panel that would hear the Atiku’s case.

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Specifically, the PDP told the CJN to consider the following justices to serve on the Supreme Court panel: Justices Ibrahim Tanko, Rhodes-Vivour, Mary Odili, Sylvester Ngwuta, Olukayode Ariwoola, Musa Mohammed and Kumai Akaahs.

The PDP caucus position was contained in a statement signed by Hon. Kingsley Chinda (PDP Caucus Leader), Hon. Chukwuma Onyema (deputy leader), Hon. Umar Barde (Caucus Whip) and Hon. Muraina Ajibola (deputy caucus whip).

Twenty for hours after the PDP mouthed the same allegation by CUPP, the APC joined the fray. That was on October 18.

The National Publicity Secretary of the APC, Mallam Lanre Isa-Onilu said the claim by the PDP House of Representatives caucus was unfounded, saying the alarm raised by the main opposition party had since vindicated its stance that the PDP was irresponsible.

The APC went further to allege that there must be a reason why the opposition wanted certain justices to be empanelled. The party said it would also kick against the inclusion of three justices into the Supreme Court panel including Justices Rhodes Vivour, Mary Odili and Sylvester Ngwuta.

Stakeholders’ perspectives on the composition of S’Court panel

Prominent lawyers and jurists who had been quiet since the controversy began on October 10 later crawled out of their cocoon to douse the tension and guided the opposing parties on the position of law on the issue.

Some of the stakeholders who spoke on the issue are a one-time Chief Judge of Lagos State, Justice Omotunde Ilori, a former President of the Nigerian Bar Association, Chief OCJ Okocha (SAN), a former Minority Chief Whip of the Imo State House of Assembly and legal luminary, Chief Mike Ahamba (SAN) and a former Attorney-General and Commissioner of Justice of Delta State, Mr Charles Ajuyah (SAN).

Although they spoke with this reporter separately, they were agreed that the controversy provoked by the opposition on the composition of the Supreme Court panel on Atiku’s appeal is needless and unwarranted.

For instance, the ex-Chief Judge of Lagos State, Justice Samuel Omotunde Ilori,said the  composition of the panel of the Supreme Court on any appeal pending before it has never been and will never be the business of any party before the court.

“It is absolutely the right of the CJN to nominate or constitute panel members as he wishes. Nobody can interfere with that right.

“Once he has empanelled a panel, nobody can set it aside except if the panel is made known and you have an issue with a panel member, you can say, look, that panel member, I don’t want him. He has been an enemy of my party for a long time.

“But it is not enough to make such allegation. The person or the party alleging must bring proofs to substantiate it.

“Of course, the CJN can now look at the allegation and the proof. If there is merit in it, he can withdraw that panel member and substitute with another.

Justice Ilori also dismissed as balderdash the position that since 1979, the Supreme Court has always nominated the most senior seven justices of the court to hear an appeal like the Atiku’s

Hear him: “No, no, no, no. I don’t know what they mean by the most senior justices. Once you have become a justice of the Supreme Court, you are a justice of the Supreme Court.

“There is no seniority in the Supreme Court. But there is what we call precedence of members. By that, it means if the justices are going somewhere, which one goes first. And when you are distributing things to members of the Supreme Court, you will follow that precedence.

“Beside that precedence, which is the habit, the custom of the Supreme Court for a long time, nobody interferes with the decision of the CJN on whoever he wants to select,” he added.

As if they had held a meeting, all prominent lawyers who spoke on the issue agreed with  Ilori including the former President of the Nigerian Bar Association (NBA), Chief OCJ Okocha (SAN) who said the composition of Supreme Court panel is the sole business of the CJN.

According to him, “The truth and the principle of law on this issue is that a party cannot choose which judge must hear his case. But a party can object to a particular judge on the panel that will hear his case if he is of the opinion that such judge will not guarantee him fair hearing.

S’Court unveils panel members on Atiku’s appeal

On October 27, the Supreme Court announced that it would take the appeal filed by Alhaji Atiku Abubakar challenging the electoral victory of President Muhammadu Buhari on October 30.

The court spoke through its Director of Information, Dr Festus Akande Aweneri.

But Aweneri who confirmed that the Supreme Court panel had been constituted was silent on when the justices were empanelled and the identities of the panel members.

However, on October 30, a full member panel of the apex court comprising the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, Justice Bode Rhodes-Vivour, Justice Olukayode Ariwoola, Justice John Okoro, Justice Aminu Sanusi, Justice Ejembi Eko and Justice Uwani Abba-ji sat.

A study of the composition of the court showed that the Chief Justice of Nigeria demonstrated independence in the composition of the panel as he did not favour either party.

For instance, the opposition PDP wanted the Supreme Court to empanel Justices Ibrahim Tanko, Rhodes-Vivour, Mary Odili, Sylvester Ngwuta, Olukayode Ariwoola, Musa Mohammed and Kumai Akaahs for the appeal while the ruling APC opposed empanelling three of the justices including Justice Rhode-Vivour, Justice Mary Odili and Justice Sylvester Ngwuta.

The CJN, in empanelling the justices of the court for the case selected Justice Rhodes Vivour that the APC was not comfortable with and refused to empanel Justices Mary Odili, Musa Mohammed, Kumai Akaahs as demanded by the opposition PDP.

However, till date, it was not clear when the Supreme Court panel was constituted.

But from the disclosure made by the CJN on October 30, 2019, while delivering the lead judgment in the case, to the effect that the panel members had studied the processes and accompanying exhibits for over two weeks, it became clear that the panel of the court might have been constituted at the time the Director of Information, Dr Festus Aweneri was denying that there was no panel in existence.

 The disclosure also might have shown that the Supreme Court might be saying the truth when on October 14 it claimed it had yet to constitute the panel that would hear the case.

CJN leads 7-member panel to review tribunal’s verdict on Atiku’s appeal

Notwithstanding the controversy on when the panel members were constituted, the court sat on October 30, this year. In less than five hours, the Supreme Court panel heard and decided the appeal by the PDP and its presidential candidate, Alhaji Atiku Abubakar in favour of President Muhammadu Buhari.

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In a summary judgment, the court held that the appeal lacked merit, promising to give its reasons for arriving at that conclusion at a later date to be communicated to parties in the appeal.

Reactions again pour

Moments after the verdict was handed down, both Buhari and the All Progressives Congress (APC) applauded the Supreme Court’s dismissal of the appeal.

The party, in a statement issued by its National Publicity Secretary, Mallam Lanre Issa-Onilu, said the decision by the apex bench showed that the judiciary stood firm in the face of the PDP and Atiku’s subterfuge.

The presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar did not waste time to react, this time around.

He said that he has accepted the finality of the decision of the Supreme Court which dismissed his appeal challenging the electoral victory of President Muhammadu Buhari in the February 23 election but that the verdict is symptomatic of a weak judiciary.

Atiku said he is not broken by the judgment but fully satisfied that he had done a good fight for the Nigerian people. He assured that he would not relent in his fight for Nigerian people and democracy.

His exact words: “While I believe that only God is infallible everywhere, and only Nigerians are infallible in our democracy, I must accept that the judicial route I chose to take, as a Democrat, has come to a conclusion.

“Whether justice was done, is left to the Nigerian people to decide. As a democrat, I fought a good fight for the Nigerian people. I will keep on fighting for Nigeria and for democracy, and also for justice.”

But foremost Senior Advocate of Nigeria(SAN) and renowned constitutional lawyer, Prof Ben Nwabueze, dismissed as strange to law the Supreme Court judgment which validated President Muhammadu Buhari’s victory in the February 23, 2019 presidential election.

Nwabueze said Atiku Abubakar was denied fair hearing.

Nwabueze, in a statement, questioned the claim by the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad, that the panel of justices “examined all the briefs of argument and the exhibits for over two weeks and we have all agreed that there is no merit in this appeal”.

According to him, the decision dismissing the appeal as lacking merits was not taken at the sitting of the Supreme Court on October 30.

Nwabueze said: “The question arising is as to whom the word ‘we’ in the CJN’s statement refers. Can the ‘we’ be a reference to the Supreme Court?

“Can the Supreme Court function as regards the hearing of the appeal before the seven man panel to hear the appeal was appointed and the names of the members announced to the public? When exactly was the appointment of members made?”

The SAN said the manner the panel was appointed did not accord with Section 36 of the 1999 Constitution, which provides for fair hearing.

The statement reads: “Fair hearing requires among other things that it must be done in the presence of the parties.

“The ‘examination’ referred to in the CJN’s statement was certainly not done in the presence of the parties.

“The examination ‘of all the briefs of argument and the exhibits for over two weeks’ before 30th October, as announced by the CJN, could not be the fair hearing required by section 36 of the Constitution.

“No ‘examination’ of all the briefs of argument and exhibits as announced by the CJN in the statement quoted above can constitute a fair hearing required by section 36 of the Constitution in the absence of the parties.

“Furthermore, not only is the hearing required to be conducted in the presence of the parties in order to be a fair hearing, section 36(3) requires it to be held in ‘public’. Section 36(3) is quite clear and unequivocal on this point.

“It says: ‘The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal shall be held in public.’

“As the examination referred to in the statement by the CJN was not held in public, it is not the hearing required by section 36(3) of the Constitution. Secret hearings and trials are abhorrent to democracy.

“What happened in the Supreme Court on 30th October, 2019 is therefore a farce, not a valid hearing and determination of the appeal lodged by former Vice-President Atiku against the victory of President Buhari in the 2019 Presidential election as declared by INEC.

“Finally, the decision of the Supreme Court dismissing the appeal for lacking merits is a law within the meaning of Section 1 of the Constitution and, being inconsistent with section 36 of the Constitution, it is, by the self-executing declaration in section 1(3), null and void.

“Section 1(3) is a self-executing declaration and does not require anything else to bring it into effect. In other words, the decision dismissing the appeal is null and void without further ado.

“Whether or not the decision of the Supreme Court dismissing the appeal is a law within the meaning of section 1(3) of the Constitution, the Supreme Court is under and subject to Constitution as the ‘supreme law of the land binding on all authorities and persons throughout the Federal Republic of Nigeria’, including the Supreme Court.”

But tackling Prof Nwabueze (SAN), one time Chief Judge of Lagos State, Justice Samuel Omotunde Ilori said the constitutional lawyer was wrong in saying that the judgment is a nullity simply because the CJN said the panel members had been perusing the documents two weeks before the members of the panel were unveiled.

Justice Ilori said: “When you file a document in court, before a judge can do justice to it, he must read, peruse, and understand it. So you can’t just go and sit in the open court without understanding the case put forward by parties.

“Now, we don’t know how bulky the documents are. But they said they have been reading the documents, studying it before the panel sat. After they had read it line by line, word for word, they will now sit in chambers and discuss it. A judge does not sit in court without reading the documents in the case he wants to do.

On the issue of fair hearing, justice Ilori disagreed with Prof Ben Nwabueze (SAN). He said “I don’t agree with him. The problem is that if you have not been a judge, you don’t know how judges do their things. I never sat in court without reading the documents, memorising it.

“You know, when the parties come to court to argue their case, I will be asking, wait a minute: Have you looked at paragraph so, so and so and line so, so and so of your submission? Does it agree with what you are saying? Those questions mean that you really understand the documents. No judge will ever sit without understanding the document,” he added.

It is assumed that the Supreme Court has pronounced with finality on the issues raised to challenge the electoral victory of President Muhammadu Buhari.

But with the issue raised by Prof Nwabueze (SAN) and the position by Atiku Abubakar that he had bowed to the finality of the apex court’s decision, it does appear that the curtain has finally been drawn on the issue.