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Presidential Poll: Issues As Supreme Court Beckons

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The petition filed by the presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, in the February 23 presidential election against the victory of President Muhammadu Buhari has been decided one way or the other. But as the opposition party and its candidate approach the Supreme Court, KUNLE OLASANMI examines the judgement and the views of lawyers and stakeholders on the verdict.

Barely a week after the judgment of the presidential election petition tribunal which validated the declaration of President Muhmmadu Buhari as the winner of the 2019 presidential election conducted by the Independent National Electoral Commission, INEC, on February 23, 2019, the dust raised by the judgement is yet to settle. Already, the Peoples Democratic Party (PDP) and its candidate in the poll are on their way to Supreme Court, the highest court in the land, to challenge the tribunal verdict.

Lawyers and stakeholders in the country have been expressing divergent views since the judgement was delivered. While some see the judgement that lasted for about nine hours as historic and a sound, others believed the judicial arm of government stood the law on its head in favour of the executive arm of government.

On Wednesday, the tribunal led by Justice Mohammed Garba delivered its judgement in the petition filed by former Vice President Atiku Abubakar, candidate of the PDP, who is the main challenger of President Buhari of the All Progressives Congress (APC) in the last presidential election.

Atiku challenged the declaration of President Buhari as the winner of the election by INEC at the tribunal. He asked the tribunal to nullify the election on the ground of widespread irregularities. Also, he questioned the eligibility of President Buhari to stand for the election, since according to him, he lacked the academic qualification to contest for the election.

After listening to arguments from counsel in the matter, Justice Garba in the unanimous decision of the 5-man panel therefore dismissed the joint allegations of Atiku and PDP that Buhari was not eligible for the poll and ought not to have been returned  winner of the election.

Specifically, the tribunal held that Buhari does not need to show prove or attached copy to his INEC form 001. The tribunal chairman held that the provision of the law was for the president to be educated up to secondary school level or its equivalent or worked in the public or private service for at least 10 years without blemishes. The tribunal said evidence abound that West African School Certificate (WASC) was in existence in 1961 when Buhari claimed to have sat for the examination. It also resolved that there is overwhelming evidence on the existence of provincial secondary school in Katsina in 1961 before it later transformed into government college.

It is important to note that since the return of democracy to Nigeria in 1999, no candidate has ever approached the Presidential Election Petition Tribunal and prove his case successfully. This has made analysts to wonder if indeed the presidential election petition laws was designed to fail.

But days after the judgement was delivered, some lawyers and other Nigerians who are aggrieved urged Atiku and his party to challenge the decision at the apex court. While some pleaded for caution, others said the panel should be commended.

A Senior Advocate of Nigeria (SAN), Mr Dayo Akinlaja, insisted that members of the panel ought to be commended for their industry, even as he urged President Buhari to be magnanimous in victory. He said, “There is no doubt that the Justices put so much into the adjudication of the petition in terms of mental and physical energy. To me, it is very imperative to appreciate them for the huge sacrifices that they had to make. Naturally, as to be expected in any adversarial contest, one party must win and another must lose.

“It is, therefore, not out of place for the parties that lost to feel aggrieved. The good thing is that there is opportunity for appeal to a higher court. They should take advantage of that, if they must. What is crucial is that at the end of it all, whoever is ultimately victorious should be magnanimous in victory and whoever loses in the long run should endeavour to be gallant in defeat. Head or tail, there is tomorrow and that should be the primary focus for all and sundry. May the good Lord help us all to live tomorrow in the Nigeria of our dream”.

But a United States of America-based lawyer and son of a retired Supreme Court Justice, Mr Emmanuel Ogebe, accused President Buhari of intimidating judges to kowtow to his wish by handing him a favourable judgment.

He said, “Under a regime that arrests judges at midnight, removes judges unconstitutionally, disobeys court orders and impose judges who don’t understand basic terms with impunity, it would take great souls of significant courage and intellectual dexterity to have had a different outcome.

‘’It appears therefore that Gen. Buhari lost the election but won the Tribunal. The conquest of all democratic structures is complete. Buhari has managed to attend school without certificate, attain the presidency without election and win at a tribunal without adducing evidence. He will go down as the 8th wonder of the world for his ability to achieve the greatest self-promotion, above his betters, with the lowest possible effort.

“With the total abnegation of the will of the people of Nigeria, it won’t be surprising if the senate canonizes Buhari as Supreme Emperor with the joyful affirmation of the judiciary”.

A constitutional lawyer, Jideobi Johnmary said, “The judgment delivered by the Presidential Election Petition Tribunal has heralded another frontier of ratiocination in our corpus juris especially in our election petition jurisprudence. It has opened many interesting chapters, moving forward, in the way and manner elections would be conducted in our nation.

‘’Speaking for myself as a Lawyer, I take the humble but calibrated view that both my heart and head are in disagreement with the divergent reasoning forming the plank of that judicial exercise in view of the gargantuan forensic contest that birthed the proceedings.

“My reasons are manifold but for economy of space I will scale them down to two. One, there is a principle of interpretation called “purposive principle” which enunciates that in undertaking the interpretation of any legislative instrument, the court is to take a holistic view of the entire document being interpreted and should strive to give an interpretation that would breathe life into the instrument in a manner that the purpose of that instrument is advanced and realised than suppressed.

“Had the Court of Appeal been guided by that interpretative polestar, it would not have taken the view that the president is not just qualified but eminently qualified to have been a party in that presidential contest. Secondly, recalling the unceremonious exit of the former Chief Justice of Nigeria when the general election was just by the corner, one is deeply worried as to whether the operation of state capture did not in any way influence our present situation.

“In any event, the Supreme Court has the final say and it is only prudent that we await its verdict. Admittedly, the Nigerian judiciary is under a heavy siege laid day and night by anti-democratic forces who believe in the supremacy of state capture as an instrument of governance with a dark conscience. The Judiciary must wage a decisive and ferocious battle to redeem itself from these hawks whose evil tentacles are well entrenched.

“The Judiciary must be conscious of the burden of history and must resolutely rise on the planes of untainted integrity and inspiring courage to save the destiny of this beleaguered nation. Their Lordships must constantly bear in mind the immortal admonition of that great Judge, Lord Atkin of England, in the case of Liversidge vs. Anderson [1941] UKHL 1, where he aptly stated that “In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

‘’The impression must not be given that finding justice in our courts is akin to finding a needle in a haystack. To the parties, they deserve commendation for yielding to the dictates Rule of Law in ventilation of their grievances in search of electoral justice. They must not depart from this path of constitutionalism whatever be the situation for the endurance of democratic values in our nation”.

But the Minister of Information and Culture, Alhaji Lai Mohammed, has asked the PDP and Atiku to apologise to Nigerians for willfully distracting the Buhari Administration with a frivolous election petition, instead of appealing the ruling of Wednesday’s presidential election petition tribunal

Shortly after the judgement, the minister in a statement said while the PDP and its candidate reserve the right to pursue their petition to the highest level, they will be better served by dropping their toga of desperation and realising that there is a limit to tomfoolery.

”Nigerians are tired of this orchestrated distraction, and will rather wish that the opposition, having lost at the polls and in court, will now join hands with the government to move Nigeria to the next level.

“This is more so that the judgement validating the re-election of President Muhammadu Buhari was unanimous that the petition lacked merit, that the petitioners failed to prove any of the grounds upon which their case was anchored and that President Buhari is eminently qualified to contest the poll,” he said.

A Civil Society Activist and lawyer, Mr Ariyo-Dare Atoye, argued however that judgement was delivered at the tribunal but justice was not served.

Ariyo-Dare Atoye, said, “Judgement has been delivered at the Court of Appeal but justice has not been served. They are two different things. It was the need to ensure that justice is done in a matter that necessitated the creation of Apex Court in the first place. Not only must Justice be done; it must also be seen to be done

“The Court of Appeal verdict in the 2019 Presidential election petition could be likened to Nigeria’s version of September 11. In a strange verdict, we saw how five justices flew unmanned aircrafts into our electoral towers and crashed them. Except this judgment is reversed or remedied by the Supreme Court, it will undo the name.

“We also saw how the Justices, travelled decades back in time, like the Men in Black film or The Time Machine film, and manufactured credentials and documents for the candidate of the APC and submitted same to the Military Board in 1961, when the candidate actually submitted none. This is the only inferences we can make out of that judgment. It is not a verdict of history but a verdict of disruption that useless the essence of certification.

“The way forward is for the National Assembly to immediately, upon resumption, transmit the amended electoral act to the President for his immediate assent before the Kogi and Bayelsa elections.  Anything outside E-collation and E-transmission of results, we will be joking about our commitment to credible elections and toying with calamities. Without this amended act signed into law, it is better to jettison the card reader in its entirety because it is of no effect whatsoever on our electoral process”.

A senior advocate, Jubril Okutepa, in his view said the tribunal in arriving at the unanimous decision considered many issues raised and arrived at conclusion which in my view was correct given the state of our law.

But he said some of the issues raised and considered in the judgment need to be critically looked at and possibly a review of the stand taken be corrected if we are not to discourage parties who lost elections from taking their grievances to the Tribunals which have been created to resolve electoral disputes.

He said, ‘’For instance, I do not with respect agree with the position of their lordships on the point that public documents duly certified must per force be tendered by the makers before it can command evidential value. Why should the maker of public documents be called before it can command evidential value in our courts and in electoral justice.

‘’How do you expect staff of INEC to accept coming to give evidence against INEC. On this issue of calling the makers of public documents to  tender them, it is my submission that certified copies of public documents can be tendered and acted upon in line with the decision of the court in Salami vs Ajadi (2007) LPELR – 8622 (CA), where it was decided that public documents can be tendered by the person to whom they were issued to. This is so because section 83(1) of the Evidence Act 2011 that requires the maker of a document to be called is not an absolute provision.

‘’It allows some exceptions in the proviso to subsections 1 and 2 thereof. One  of the exceptions is on the ground of undue delay. Thus in Igbodim vs Obianike and Ors (1976) LPELR- 1448(SC) it was held that documentary evidence can be admitted in court through any witness by  consent or without objection under section 83(2) of the Evidence Act. Furthermore section 98(1)(b) of  the Evidence Act has made it unnecessary  to call the maker of certified true copies of public  documents. This is what the section says: “A person seeking to prove the due execution of a document is not bound to call the party who  executed the document or to prove the handwriting of such party or of an attesting witness in any case  where the person against whom the document is sought to be proved – (b) is a public officer bound by law to procure its due execution and he has dealt with it as a  document duly executed.

“See also sections 146 and 148 of the same Evidence Act which states that the courts shall presume  every certified true copies of public  documents produced before it to be genuine. Section 52 of the Evidence Act also makes entry in a public  book or record admissible and section 20 of the Evidence Act makes statement made by a party  in a document adverse to his case admissible.

“A question then may be asked, who is the maker of a public document of considerable antiquities. Or who is the makers of INEC voters Register or INEC electoral materials or forms. The makers name is not indicated. At best they are made for INEC by some Unknown human beings and it was the same INEC that by law is obligated to give these documents upon applications within 7 days. See section 77 of the Electoral Act 2010 as amended. By section 151 of the Electoral Act, the court or Tribunal can order INEC to give all Electoral materials to a party to prosecute, maintain or defend petition as the case may be.

“Again by section 31 subsection 5 of the Electoral Act 2010 as amended, any person who had reason to believe that information supplied to INEC by a candidate in an election is false can apply to INEC for the copy of form CF 001.

‘’Normally public documents are usually given following the procedure permitted by the Evidence Act for public documents. So if the laws allow certified public documents to be applied for and tendered even from the Bar why are our courts insisting that such documents must be tendered by the makers before it can command evidential value. There is no doubt that elections materials can be produced  based on orders of court for inspection and for certified true copies to be made. See section 151 of the Electoral  Act. In some cases INEC produced these documents and give based on the orders of courts or Tribunal. In some cases INEC may admit the existence of these documents.

“In the  case of case Asafa Foods Factory Ltd vs Alraine (Nig) Ltd and ors (2002) 12  NWLR (Pt. 781) 353, it was held that where a defendant admitted a document pleaded by the  Plaintiff, the document is regarded as proved but the plaintiff must still tender the document at the  hearing so the court can interprete it correctly’’.

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