BY CLIFFORD NDUJIHE, IKECHUKWU NNOCHIRI & DAPO AKINREFON

ABUJA – FOR the third time in as many elections, the Presidential Candidate of the  Congress for Progressive Change (CPC) in the April 16, 2011 presidential polls, Major General  Muhammadu Buhari (rtd), yesterday lost his bid to overturn the election of a sitting president when a seven-man panel of the Supreme Court affirmed the election of President Goodluck Jonathan.

And as he had done in 2003 and 2007 when he ran on the plank of the All Nigerian Peoples Party (ANPP) and lost to Presidents Olusegun Obasanjo and late Umaru Musa Yar’Adua, respectively, both at the polls and in the law courts, Buhari yesterday  rejected the ruling, saying that it was politically motivated and had little or no judicial content. He warned the government to save the country from imminent collapse.

This came as mixed reactions trailed the verdict with President Jonathan and House of Representatives Speaker, Aminu Tambuwal advising Buhari to accept the verdict in good faith and join hands with the government to develop the country as supporters of the ruling party embarked on victory dance in Abuja.

Among those, who spoke on the ruling yesterday were  Professor Itse Sagay (SAN), Mr. Bamidele Aturu, Wale Ogunade, the Peoples Democratic Party (PDP) and  Society for Rule of  Law in Nigeria (SRLN).

Why apex court stopped Buhari

In their unanimous judgement, the  panel of Justices led by the Chief Justice of Nigeria, CJN, Justice Dahiru Musdapher, affirmed the verdict of the Presidential Election Petition Tribunal which on November 12, 2011dismissed the petition that the CPC filed against the outcome of the presidential poll  as grossly lacking in merit.

Whereas it was Justice Olufunlola Oyelola Adekeye that prepared and read the lead judgement, the CJN who was absent in court yesterday and five other justices on the panel, concurred with the ruling.

The court dismissed the appeal on grounds that the CPC failed to substantiate alleged acts of non-compliance it claimed substantially affected the outcome of the election. The apex court maintained that the appellant was unable to discharge the burden of proof as stipulated in section 136 of the Evidence Act, noting that “from all indication, this petition was doomed to fail from the first day it was filed.”

“Every legal practitioner ought to know that this appeal was bound to fail. A close look at the case of the appellant will show that it is principally seeking two reliefs, the nullification of the April 16 election and an order mandating INEC to conduct a fresh election.

Where these two vital reliefs were not available to the petitioner in view of the evidence it tendered before the tribunal, it reduces the appeal before this court to a mere academic exercise that does not justify the sleepless nights we had writing this judgment. This is why I implore members of the bar to always tell their clients the truth in respect of cases like this”, Justice Mahmud Mohammed Tanko, who led the panel yesterday, noted.

“Appellant did not pursue the criminal allegations…”

“The law is trite that the appellant, in claiming declarative reliefs, ought to stand on the strength of its own case and not only on witness evidence. The appellant did not pursue the criminal allegations it made in its briefs but rather relied solely on the civil aspect.

Having therefore abandoned the criminal allegation, what remained of the appellant’s contention was the issue of non compliance with the provisions of the Electoral Act. The burden of proof rests on the appellant and the question is whether it was able to discharge such burden before this court, a question to which I say no,” Justice Walter Onnoghen added.

Concurring, Justice John Afolabi Fabiyi, said the CPC should not complain of fair-hearing after it failed to maximise adequate time that was accorded to it by the election petition tribunal to present its case.
“Having gone through the records of the tribunal, it is my considered view that the appellants right of fair hearing was not denied in anyway.

The position of the law is that he who asserts must prove. The court below correctly evaluated the evidence before it. The case of the petitioner collapsed on November 12 after the tribunal in its ruling expunged the evidence of petitioners PW-1, Mr Anthony Momoh, which dealt with the issue of non-compliance as alleged by the appellant. There is nothing before this court indicating that the ruling was appealed”, Justice Bode Rhodes-Vivour noted.

Specifically the court held that “before a petition can succeed on grounds of non-compliance with the Electoral Act, the petitioner must prove that the non-compliance actually took place and substantially affected the result of the election as was decided in the case between Awolowo and Shagari.

“There is no doubt that it is the statutory duty of the 1st defendant, INEC, to conduct and defend election as an independent and unbiased umpire, however, mere allegation by the petitioner or calling hearsay evidence cannot shift burden of proof to the 1st defendant. The onus to establish substantial non-compliance is on the petitioner; it is only after then that the burden shifts to the respondents to prove that the election was not marred by substantial irregularities. In which ever angle this petition is looked at, the petitioner did not discharge the burden of proof given on the balance of probability.

“Consequently, the 3rd and 4th respondents (Jonathan and Sambo) won the April 16 presidential election conducted by the 1st respondent (INEC) and were returned by the 2nd respondent (Professor Attahiru Jega) as the duly elected President and Vice President Respectively.  This appeal failed in its entirety and is hereby dismissed. Parties are to bear their respective costs,” the Supreme Court ruled.

I leave justice to God – Buhari

Responding to the verdict, Buhari said he had resolved to leave the issue of justice in the hands of God Almighty, alleging that “the decision of the Supreme Court is politically motivated and has little judicial content.”
Buhari, who read a speech he brought to court in front of newsmen yesterday, lamented: “As in 2003 and 2007, the Supreme Court this morning rejected CPC’s appeal against the Lower Court verdict that the rigged Presidential election of 16th, April 2011 was properly conducted. All who witnessed the conduct of the 2011 elections would know that this decision of the Supreme Court is politically motivated and has little judicial content.

“This Supreme Court has proved no better than the Supreme Courts of 2003 and 2007. For the records, let me refresh the public memory about what happened in the litigations after the 2003 and 2007 rigged elections.

In 2003 we presented a cast iron case before the Court of Appeal citing several major infringements of the Electoral Act 2002. In particular we subpoenaed INEC to furnish the Court with proof of the ‘result’ they declared. They did not, because they could not. The Court still declared the result as valid. Worse still, the Supreme Court upheld this dubious ruling of a dubious election.

“In 2007, I and my Party, the ANPP, produced copious proof that the presidential election was rigged in the most blatant fashion. For one, ballot papers were distributed to polling stations on blank sheets of paper, making it impossible to carry out an audit trail. Secondly, during the process of tallying the result, the egregious Professor Maurice Iwu, then Chairman of INEC excused himself from the collation venue (after only 11 states and Abuja of the 36 states were tabulated) and announced the ‘result.’ At the time he made this announcement voting materials had not even fully arrived in some states.

“Only in Nigeria and only under a government like PDP’s would these criminalities pass the sanction of the Judiciary. Yet on appeal, the Justice Idris Kutigi Supreme court after a long adjournment, declared the election valid, with three justices dissenting. In both elections, local and international observers condemned the elections in no uncertain terms.

“What happened in this year’s 2011 elections eclipsed all the other elections in the depth and scope of forgery and rigging. Initially there were high hopes that after 2003 and 2007 a semblance of electoral propriety would be witnessed. The new chairman of INEC, Professor Jega, was touted as competent and a man of integrity. He has proved neither. After asking for – and getting – close to N100 billion for the election including biometric data with all 10 finger prints to conduct a thorough electoral exercise, he botched it.

“When our Party, CPC, demanded forensic material, finger printed ballot papers to prove colossal and widespread multiple voting throughout the country rendering the election invalid in at least 25 out of the 36 states of the federation, INEC refused to provide them in Court, citing national security. A laughable excuse if ever there was one.

“The national and international monitors having seen their work wasted and ignored this time, took the line of least resistance and declared the elections as okay. Who can blame them? Yet the Justices of the Supreme Court have now seen nothing wrong in this.

“To nobody’s surprise therefore, spontaneous violence broke out in parts of the country after the announcement of the “result”. The Lemu Panel has come up with detailed causes of the riots and given lie to those who wanted to label the riots as my handiwork. The facts are that people were deeply angered and deeply provoked at the wanton conduct of the elections: the snatching and stuffing of ballot boxes, violence unleashed on opposition supporters, use of the police and elements of the army to intimidate injure and kill opposition supporters and flagrant change of results after collation such as in Niger, Bauchi and Kaduna states.”

Averring  that INEC refused to release the biometric data because it wanted to cover situations where 100 per cent of registered voters voted in favour of the same candidate, Buhari said it was sad that “the Supreme Court has turned a blind eye and deaf ear to these gross irregularities. That is the theme running through all three elections since 2003.

“The country now has to live with the consequences of the actions of PDP government in collaboration with INEC, police and security services over the last 10 years. A country on the brink of developing into a major continental power in 1999 is now a fractured society, corruption everywhere, violence everywhere, a sense of helplessness and hopelessness nearly everywhere. While the country is sliding into this chaotic state, PDP governments at the centre and in the states are engaged in massive and mindless plunder of the country’s resources in total disregard of the suffering masses.”

Accept verdict in good faith – Jonathan

Meantime, President Jonathan has applauded the judgment and urged Buhari to accept the verdict in good faith.
According to a press statement by his Special Adviser on Media and Publicity, Mr. Rueben Abati, the President said the ruling appended a final seal of approval on his victory “already acknowledged by the vast majority of ordinary Nigerians, political parties and the international community.”

He commended Buhari for availing himself of the country’s legal and judicial system in expressing his reservations about the conduct of the elections. “Now that, that process has run its full course, President Jonathan hopes that General Buhari and his party will accept the ruling of the esteemed Judges of the Supreme Court in good faith and join hands with him and other well-meaning Nigerians to build a united, stronger and prosperous nation that present and future generations of Nigerians can be proud of.

“He expects that General Buhari will continue to contribute positively to national development and also mobilize his supporters across the country to join in the process of national reconciliation and national renaissance.

President Jonathan thanks all Nigerians once again for their trust and confidence which gave the Jonathan/Sambo ticket an overwhelming victory in the elections. He assures the nation that the federal government, under his leadership, will remain fully focused on its objectives and continue to work assiduously to implement its agenda for national transformation in fulfillment of his promise of better living conditions for all Nigerians.”

It’s victory for democracy – Tambuwal

In like manner, House of Representatives Speaker urged Buhari and the CPC to join the government in bringing about much needed development in the country.

Tambuwal who spoke through his new spokesman, Imam Imam, also congratulated President Jonathan on his victory at the Supreme Court, saying the judgement reaffirmed the decision Nigerians in electing Jonathan at the polls.

“Now that the matter has been decided by the Supreme Court, all Nigerians must put aside partisanship and rally behind the President in his quest to move the country to the next level,” the Speaker said. He urged the opposition parties to see the judgement as victory for democracy.

PDP: It is a thorough verdict

Relatedly, the ruling  PDP, which congratulated President Jonathan, his Vice, Namadi Sambo and the panel of jurists that sat through the case, said it was a thorough verdict. The party spoke through its National Publicity Secretary, Professor Rufai Ahmed Alkali.

“The judgement of the Supreme Court brings to a close a tortuous process of litigation, which we felt was unnecessary in the first place. We however wish to congratulate the learned jurists for a thorough verdict which will no doubt strengthen the faith of the common man in the judiciary. We wish to appeal to those who lost out to now join hands with President Goodluck Jonathan as he focuses on the enormous task of national transformation, beginning with fixing our faltering economy and provision of security for the protection of lives and property.

The time for elections and litigation is now over. What should now be our collective goal is the stability and growth of our dear country. We therefore call on all Nigerians to set aside political, social, religious and ethnic differences and unite for the sake of the current and future generations,” it said.

Victory dance for Jonathan

Elated with the ruling, prominent members of the PDP and  supporters of President Jonathan embarked on victory dance shortly after the judgment.

For the PDP’s National Working Committee (NWC) led by Alhaji Kawu Baraje, the ruling had vindicated its position that most Nigerians voted for the candidate of the their party.

It’s victory for rule of law – Oni

On his part, former Governor of Ekiti State, Chief Olusegun Oni, who also congratulated President Jonathan, Vice President Sambo, the PDP and all Nigerians over the Supreme Court judgment, described the verdict as a victory for rule of law.

Oni, who reacted to the judgment through his Media Aide, Mr. Lere Olayinka, said:  “Once again, the court of law has vindicated the Independent National Electoral Commission (INEC), which declared our great party, the PDP as the winner of the presidential election in line with the mandate freely and willingly given by Nigerians. It is victory for democracy, victory for rule of law, victory for Nigerians who voted massively for President Jonathan, and most importantly the truth which will always be constant.”

A/Court made it impossible for Buhari to prove his case – Prof Sagay

Speaking on the ruling, Professor  Sagay in a telephone chat with Vanguard, blamed the Court of Appeal for mixing up Buhari’s case.

His words: “I have not read the judgement neither do I know the reason given by the Supreme Court. What I have to say is that the Court of Appeal had already neutralized Buhari’s case by refusing Buhari’s lawyers access to electoral materials for forensic examination.

There is a provision in the Electoral Act, which empowers the petitioners and his lawyers to do that. What happened was that Justice Ayo Salami actually set up a panel that actually approved the examination of those materials, when they removed him (Salami), the new panel that took over, reversed the decision. As a result, they were not able to examine the ballot papers to ensure that there were cases of multiple voting and all sorts of irregularities.

“So, the Court of Appeal made it impossible for Buhari to prove his case. What was presented to the Supreme Court was a situation in which there was an unprovable case. The only thing I would add is that if I were  in the Supreme Court, I would have sent the case back to the Court of Appeal with the order that they should be given access to electoral materials. That is the only way you can discover all the fraud and irregularities that were being complained about. I put the whole fault on the Court of Appeal.”

….Aturu, Ogunade concur

Messers Bamidele Aturu and Wale Ogunade also blamed the appellate court for the Supreme Court decision.
Aturu observed that, “the Supreme Court cannot manufacture evidence but the seven-man panel should have re-visited the decision of the Appeal Court which denied the CPC the right to examine the electoral materials. For the CPC to be denied access to the materials based on technicalities, is a great injustice and I think we need to review our laws to ensure that people are given the right to electoral justice.”

To Ogunade, the judgment was the climax of the intrigues and politics that had been rocking the judiciary, which culminated in the reconstitution of the Appeal Court judges.

“The case was lost immediately Appeal Court denied the CPC the right to examine the electoral materials. Once the evidence is not allowed in a matter, then you cannot expect to get a favourable result because you will be operating from a disadvantageous position,” he stated.

SRLN hails judgment

However, an Abuja-based Non Governmental Organisation; the Society for Rule of  Law in Nigeria (SRLN) saw the verdict  as a sign that “the temple of justice in Nigeria is restoring itself back to public confidence.”
In a statement issued by its Coordinator, Comrade Chima Ubeku, the group said: “It has been reaffirmed that nobody anywhere in this country will give judgment by placing the burden of proof on the Respondents against he who asserts. We wish to congratulate the top echelon of the Nigeria judiciary on this judgment, which will erase any doubt in future about who has the burden to proof between the petitioner and the respondent, especially in election cases.

“As against the Salamic Judicial Authority, which placed the burden of proof on the respondents, and on which basis judgments were entered in favour of the Action Congress of Nigeria (ACN) on Ekiti and Osun States governorship cases, now the Supreme Court has once again affirmed that it is ‘he who asserts that must proof..’ We are therefore happy that the judiciary is being restored to how it used to be and we congratulate Nigerians for this development.”