By a unanimous verdict, a five-member Presidential Election Petition Tribunal recently dismissed a joint petition by the Peoples Democratic Party (PDP) and its presidential candidate, Alhaji Atiku Abubakar seeking to oust President Muhammadu Buhari from office. In this piece, Ise-Oluwa Ige examines the claims of both parties as presented before the tribunal, the general verdict of the court on issues raised in the petition and the reactions of stakeholders to the judgment.
Cause of action
On February 27, this year, the Independent National Electoral Commission (INEC) declared the flagbearer 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; that he purportedly lied on oath regarding his qualifications for the said election and that he did not score the highest number of lawful votes cast at the election.
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.
Buhari, APC, INEC kick
Soon after the PDP and Atiku served the petition on the three respondents—INEC, Buhari and APC, they responded by filing separate preliminary objections to challenge the competence of the petition and the jurisdiction of the court to hear the case as constituted.
They had argued that the petitioner made serious criminal allegations against some individuals and corporate institutions regarding the conduct and outcome of the election but that they were not joined in the suit.
They argued that the tribunal needed not waste its time going into the merits of the case as the petition was incompetent and therefore liable to fail.
They also contended that the claim of the petitioners 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.
They therefore urged the tribunal to decide their separate objection to the petition, saying they would only be willing to join issues with the petitioner in the event their objections did not succeed.
But the tribunal overruled them and held that it would give a composite hearing and judgment on both the objections and the substantive case.
The tribunal thereafter ordered parties in the case to file their briefs.
After the preliminaries, full blown hearing of the petition commenced on July 4, 2019 when both PDP and Atiku opened their case. They called a total of 62 witnesses and closed their case on July 19, 2019.
When INEC, the first respondent was called upon to defend the petition, its legal team headed by Mallam Yunus Ustaz Usman (SAN), said it would not call any witness.
The commission said there was no need to call any witness because the evidence of the petitioners’ (PDP and Atiku) witnesses were in favour of its case and strong enough to rely on as its major defence.
On July 30, 2019, Buhari opened his defence. He was represented by a consortium of lawyers led by one-time President of the Nigerian Bar Association (NBA), Chief Wole Olanipekun (SAN).
He called seven witnesses in support of his defence and closed his case on August 1, 2019.
As soon as Buhari rounded off, APC like INEC, shocked the tribunal when it also announced that it would not call a single witness in the case but would rely on the testimonies of the witnesses called by Atiku and PDP to defend the petition.
After they were done, the tribunal ordered them to file and exchange their final written addresses and fixed August 21 for them to adopt the briefs.
All the parties complied as Dr Uzoukwu (SAN) in Atiku, PDP’s joint written address formulated five issues for determination. On its part, INEC formulated four issues for determination; Buhari through his counsel, Wole Olanipekun (SAN) formulated three issues for determination while APC through Fagbemi (SAN) formulated six issues for determination.
Our case against Buhari, others—Atiku
In their 43-page final address filed on August 14, through their lead counsel, Dr Livy Uzoukwu SAN, Atiku and PDP formulated five issues for determination including:
- Whether Buhari was at the time of the election not qualified to contest the election
- Whether Buhari submitted to INEC affidavit containing false information of a fundamental nature in aid of his qualification for the said election
- Whether from the pleadings and evidence led, it was established that Buhari was duly elected by majority of lawful votes cast at the election
- Whether the presidential election conducted by INEC on February 23, 2019 was invalid by reason of corrupt practices
- Whether the presidential election conducted by INEC on February 23, 2019 was invalid by reason of non-compliance with the Electoral Act 2010 (As Amended) and the Electoral Guidelines 2019 and manuals issued for the conduct of the election.
On issue one, PDP and Atiku submitted that they had established, in the course of the proceedings, the fact that Buhari did not possess the requisite academic qualification for the position of President of Nigeria.
The petitioners argued that Buhari’s own witnesses under cross examination admitted to the fact that Buhari did not possess a school certificate, being the basic requirements for contesting for the office of the president.
“We therefore submit that all the purported evidence led by the 2nd respondent (Buhari) to prove that he attended a secondary school or a primary school or that he attended some courses, is irrelevant because he did not rely on any of those purported qualifications in exhibit P1, he relied on primary school certificate, WASC and Officer Cadet.
“Equally futile is his attempt to prove that he can speak and write in English Language. That is all irrelevant to his inability to produce his primary school certificate, secondary school certificate or WASC and his Officer Cadet qualification, whatever that means.
“Officer Cadet is not a qualification or certificate under the Constitution and Electoral Act; nor is it known to any law.
On the purported Cambridge University certificate tendered by Buhari before the tribunal, the petitioners asked why “it was easier for Buhari to go all the way to Cambridge in the United Kingdom to obtain a bogus document that his own witnesses said was not a certificate, instead of just driving down the street in Abuja to the Army Headquarters or placing a phone call to the Secretary of the Military Board in Abuja to hurry over with his certificate or certificates.”
Still on the Cambridge University documents, the petitioners submitted that, “A comparison of the purported Cambridge Assessment International Education Certifying Statement of the purported West African Examination Council (WAEC) certificate and a certified true copy of the purported confidential result sheet of the University of Cambridge West African School Certificate of 1961 for the Provincial Secondary School, Katsina reveals many discrepancies in the supposed result.
“One listed 8 subjects that the candidate therein ‘Mohamed Buhari’ allegedly sat for, the other 6 subjects, both documents are therefore unreliable as both cannot be correct. The contradiction must count against the 2nd respondent.
On issue two, PDP and Atiku again submitted that another false claim by Buhari was that he swore to an affidavit that he attended, “Elementary School, Daura and Mai Aduwa 1948-1952”.
“Elementary School Daura is totally different from Mai Aduwa, their locations are totally different.”
He also claimed he entered Middle School Katsina in 1953, however, the petitioners submitted that by 1953, the Middle School system had been abolished in the northern region of Nigeria.
On the claim in his affidavit that his certificates were with the military, the petitioners submitted that Buhari failed woefully to prove the claim, “rather the petitioners’ evidence to the contrary was not contested nor challenged.
It was also argued by the petitioners that they had successfully proved that the Nigerian Army had denied being in possession of Buhari’s alleged certifcates.
“One of the strongest evidence on the issue was given by the second respondent’s own witness, RW1, General Paul Tafa, (Rtd), who under cross examination by the 1st respondent (INEC), told the court firmly and unequivocally that the Army did not collect the certificates of military Officers and added, ‘there was no such thing”.
On issue four pertaining to rigging and non-compliance with the Electoral Act 2010, the petitioners said with the plethora of evidence tendered and witnesses called, they have been able to show to the tribunal that Buhari’s election was invalid.
They added that analysis of results from 11 states showed how INEC in connivance with Buhari and the All Progressives Congress (APC) wrongly and unlawfully credited Buhari with votes not valid or lawful.
According to them documents tendered before the tribunal showed huge discrepancies between collated results as contained in the tendered Certified True Copies of forms EC8A and polling units.
They further alleged that a total of 2,906,384 votes were cancelled across the country, while 2,698,773 Nigerians were disenfranchised.
They said the two figures when added exceeded the 3,928,869 differential between the votes as stated in INEC form EC8E.
In addition, they said they had led evidence to show that INEC violated its own regulations and guidelines with respect to mandatory use of the smart card reader in the process of accreditation which according to them occasioned over voting thereby rendering the election null and void.
They therefore prayed the tribunal to grant all the reliefs sought for in their petition.
Buhari in his own final written address settled by his lead counsel, Chief Wole Olanipekun SAN, dated and filed August 7, 2019, submitted that there were just three major issues for determination by the court including:
- Whether the petitioners have been able to make any case that Buhari was not qualified to contest the February 23 presidential election and or submitted false information to INEC in his form CF001
- Whether the Petitioners have not woefully failed to prove any of the 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 and
- 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.”
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, 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.
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 said 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 a mere judgment and not justice, said he has handed over the judges who prepared the judgment to Almighty God even 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.
PDP rejects verdict
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.
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 affairs analyst, Charles Umegboro said the judgment was sound.
According to him, so far, whilst Buhari’s supporters hailed the judgments, the opposition parties insinuated they were robbed of their mandate by the verdicts, bitterly alleging that judiciary merely delivered the scripts of ‘the-power-that-be’.
However, in any developing nations, such insinuations are no shocking news particularly in the camps of the oppositions whenever verdicts favour the ruling party or her government.
For example, the same judiciary was massively, overwhelmingly hailed as the last hope of the common man when the court’s gavels, one after another stopped APC from fielding candidates in Rivers, Zamfara, Bauchi, Sokoto and Cross River states recently which made PDP to sweep the entire polling units without stress. Be that as it may,
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