By Ikechukwu Nnochiri
Going by the express provision of section 134 of the Electoral Act, as amended, the Presidential Election Petition Tribunal sitting in Abuja, has exactly 22 more days to deliver its judgment on the petition entered before it by the Congress for Progressive Change, CPC.

The petition is seeking to nullify the April 16 presidential election that brought President Goodluck Jonathan of the ruling Peoples Democratic Party, PDP, into power.

Specifically, today marks exactly 158 days since the opposition party launched its bid to sack both President Jonathan and his Vice, Namadi Sambo from their respective offices.

The petitioner had in its substantive suit before the tribunal, alleged that PDP connived with officials of the Independent National Electoral Commission, INEC, and rigged the April 16 presidential election in favour of its candidate.

It expressly challenged all the results that were garnered by the PDP in all the 17 states in the South, as well as in Sokoto, Kaduna, Plateau, Kwara, Benue, Adamawa, Nasarawa states in the North and the Federal Capital Territory, FCT, even as it has beseeched the tribunal to annul the election and order a re-run between it and the PDP.

Conduct of presidential poll

While section 134 of the Electoral Act, as amended, gave the presidential election petition tribunal 180 days (6 months) to dispose every dispute that emanated from the conduct of a presidential poll, section 140 (1) of the same Act on the other hand, imbued the tribunal with powers to nullify an election if the petitioner successfully proves its case.

According to section 140 of the Electoral Act, “subject to subsection (2) of this section, if the tribunal or the court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election”.

Just as sub-section 2 of the same section provides that “where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election or that the election was marred by substantial irregularities or non-compliance with the provision of this ACT, the election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election”.

So far, hearing on the petition was been filled with intrigues, as both the petitioner and all the respondents have taken turns and called witnesses that testified before the justice Kumai Bayaang Akaahs led 5-man panel of justices presiding over the matter.

Whereas INEC in a bid to exculpate itself from the allegations of electoral fraud levelled against it by the CPC, called only three witnesses that testified in its favour, President Jonathan on his own part called 26 witnesses while PDP which initially expressed its readiness to call 135 witnesses to testify for it, ended up producing  only 10 of them in court.

Meanwhile, it is  expedient to take a retrospective glance at the legal journey so far.

It would be recalled that despite the unenthusiastic stand of its presidential candidate, Muhammadu Buhari, who earlier avowed that he would not embark on what was beginning to appear like a “routine-after-election-litigation orgy”, his party brushed aside his sentiments and proceeded to the tribunal.

Motivated by their National President, Prince Anthony Momoh, (a lawyer), Chieftains of the Party, on Sunday May 8, defied a heavy downpour and approached the registry of the tribunal with a petition challenging all the election results that were declared by the Chairman of the Independent National Electoral Commission, INEC, Professor Attahiru Jega, on April 18, 2011.

CPC in its suit alleged that the ballot papers meant for certain polling units were illegally diverted to other units and subsequently used for ballot stuffing, even as it beseeched the tribunal to declare that president Jonathan failed to fulfil the requirement of section 134 (2) of the 1999 constitution.

Those it listed as respondents in the matter were INEC, its chairman, Jega, all the Resident Electoral Commissioners in the 36 states and the FCT, President Jonathan, his Vice, Namadi Sambo, as well as the Peoples Democratic Party, PDP.

However, before one could say Jega! Over 10 Senior Advocates of Nigeria, SANs, volunteered to represent President Jonathan in the matter ‘free of charge’, while those who could not make it into the list of the chosen silks, quickly defected to the ‘legal ship’ of the PDP. Acting swiftly, lead counsel to President Jonathan and his Vice, Chief Wole Olanipekun, SAN, and that of the PDP, Chief J.K Gadzama, SAN, approached the tribunal with a motion asking it to dismiss the suit forthwith.

The respondents had on May 24, asked the tribunal to compel the petitioner to furnish them with specific particulars of the alleged electoral malpractices that it said culminated to the failure of its candidate, Buhari, in the April 16 presidential election.

President Jonathan via a motion he  filed on May 20, and a replica motion filed by PDP on May 22, maintained that availing him with the further and better particulars of all the accusatory averments made against him in the petition, would aid his team of lawyers to file a sustainable defence on his behalf, a request that was accordingly granted by the court which was then presided by the now suspended President of the Court of Appeal, PCA, Justice Isa Ayo Salami.

Other justices on the adjudicatory panel were, Mohammed Garba, M.A. Owoade, I.I. Agbube and Justice Obande Ogbuiya.

While seeking an immediate dismissal of the suit, PDP and Jonathan, relied on the combined provisions of Section 137 (3) of the Electoral Act 2010 (As Amended), Order 3 Rule 9 of the Court of Appeal Rules 2011, Order 46 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 and Paragraphs 4 (d) and 47 (1) of the 1st Schedule to the Electoral Act 2010 (As Amended), to contend that the Registry of the Tribunal, ought not to have accepted CPC’s petition on Sunday May 8, stressing that the day the petition was filed (weekend) rendered it “dies non-juridicus”.

They argued that the Public Holidays Act, CAP P40 LFN, 2004, excluded Sunday from the list of working days, adding that Section 4 of the Act specifically provided that “No person shall be compellable to do any act on a day appointed by or under the provisions of this Act to be kept as a public holiday which he would not be compellable to do on a Sunday.

“Thus section 4 of the Public Holidays Act clearly sets Sundays as the benchmark for Public Holidays. The pertinent question is whether or not a court can sit or validly transact court business on a Public Holiday”, they argued.

The respondents further urged the court to strike out the names of the Chief National Electoral Officer, Professor Attahiru Jega and the Resident Electoral Commissioners in all the 36 states and the FCT, on the ground that they are not necessary parties to the petition. As well as to, strike out paragraphs of the petition containing complaints against the Nigeria Police Force, Nigeria Security, the Civil Defence Corps and the Nigerian Army, on the premise that the petitioner failed to join them as necessary parties in the matter.

Arguing the motion on July 6, Chief Olanipekun, SAN, faulted section 140(2) and section 134(4) of the Electoral Act which the CPC relied upon to seek a nullification of the April 16 presidential election, saying that the tribunal was bereft of the powers to order a re-run election in a situation where the candidate of the petitioner in the contested election, Buhari, was not joined as a necessary party in the suit.

“We urge your lordships to terminate the life of this petition; it is a still born baby that is dead on arrival considering that what they are urging this tribunal to do is unconstitutional.

“Where is the candidate of the petitioner who may stand as a beneficiary if the reliefs being sought after is granted? There is none and this is why we are saying that the entire process is nothing but an academic exercise”, he submitted.

However, on July 14, the then Justice Salami led panel, dismissed every objection that was raised against the suit, adding that the tribunal has the jurisdiction to entertain the suit, stressing that terminating the petition at that stage would tantamount to burying contention of the litigants on the ground of technicalities.

The panel relied on the provisions of section 150(1) of the Evidence Act, to hold that there was presumption of regularity, noting that, “the hay days of relying on technicalities are over.”

Justice Salami, who read the ruling, said the respondents failed to disclose the injury, injustice or damages they stand to suffer should the case be heard on its substance.

He therefore certified the petition as “competent”, though the panel agreed with the respondents that it was wrong for the CPC to accuse the Nigeria Police Force, Nigeria Security, the Civil Defence Corps and the Nigerian Army of complicity in election rigging, without joining them as necessary parties in the suit, thus the paragraphs concerning them were duly expunged.

The panel on that day, ordered INEC to grant the petitioner access to both the biometric database created by the Direct Data Capturing machines, as well as all the ballot papers used during the April 16 presidential poll.
Expectedly, the ruling did not go down well with both PDP and Jonathan, as they immediately to the decisions to the Supreme Court for further judicial scrutiny, insisting that the Justice Salami led panel erred in law by declining to dismiss CPC’s petition.

On August 1, CPC approached the tribunal, complaining that INEC blatantly refused to grant it access to any of the materials used during the election. The party had in a separate application, sought and secured an order that compelled INEC to seal all the DDC, Machines, and ballot boxes used for the presidential elections, which CPC said it would subject to an extensive forensic analysis with a view to proving that the poll was rigged by the PDP.

Beside, the CPC had equally prayed the tribunal for an order, directing INEC to allow its biometric experts access to all the Biometric data base of every registered voters in Nigeria for the purpose of cross-checking finger prints on the face of the ballot papers cast in states, local governments, wards and polling units across the 36 states of the federation and the Federal Capital Territory, Abuja, with what was captured in INEC’s database.

It urged Justice Salami to direct INEC Chairman, Jega, to furnish it with the list of all the local contractors that were engaged by electoral body to print ballot papers used for the presidential election, as well as, oblige it with copies of the contract papers executed by the electoral body, as evidence that the said contracts were actually awarded by the commission.

Though the panel accordingly granted the request, however, the CPC returned to court, saying none of the orders were complied with.

Meantime, on August 15, Justice Salami gave President Jonathan till August 29, to respond to a fresh application that was filed by the CPC, asking that Buhari should be declared as the bona-fide winner of the April 16 presidential election.

The CPC had in a motion on notice it filed pursuant to paragraphs 18[11] of the 1st schedule of the Electoral Act 2010, as amended, and Section 149 [D] of the Evidence Act, alleged subterranean collaboration between the PDP and the INEC, insisting that it was the grand reason why the electoral body refused to make available to it any of the materials used in the conduct of the poll.
It therefore sought for “an order entering Judgment in favour of the Petitioner in Petition No. CA/A/EPT/PRES/1/2011 under Paragraph 18(11) of the 1st Schedule to the Electoral Act, 2010 as amended and Section 149 of the Evidence Act on the ground that the order for inspection granted by this Honourable Court on the 24th day of May, 2011 is refusal or failure or neglect of the Respondents to comply with the terms contained in the said order.”

President Goodluck Jonathan and Gen. Muhammadu Buhari (rtd)

This request was still pending when the National Judicial Council, NJC, suspended Justice Salami from office over alleged judicial misconduct.

Sequel to the development, when hearing resumed on the matter on August 29, only four Appeal Court Justices, led by Justice Mohammed Lawal Garuba, sat over the application seeking Buhari’s declaration as president.

While moving the application, counsel to the CPC, Dipo Okpeseyi, SAN, pleaded the court to hold that the refusal of INEC to grant the petitioner access to all the materials used for the presidential election, was an indication that the election was rigged by the PDP.

His application was vehemently opposed by counsel to Jonathan, Dr. Alex Izinyon, SAN, who contended that granting CPC access to voters’ information in the DDC machines, will amount to an infringement on the right of privacy of electorates which he said was made sacrosanct by the constitution of the Federal Republic of Nigeria, adding that what the petitioner requested for would be a breach of section 125 (3) of Electoral Act.

Counsel to PDP, Chief J.K Gadzama, SAN, also opposed the application on the premise that Section 25 of theElectoral Act, 2010 as amended and Section 1 and 9 of the Official Secret Act 1990, did not permit INEC to allow any person or authority to have information as to the pattern of voting or who a voter voted for during election.

He insisted that Section 1 of the Official Secret Act made it a criminal offence for the electoral body to divulge such information, adding that any staff of INEC found to have granted such access to a petitioner would be prosecuted.

After listening to their arguments, Justice Garuba in consonance with other members of the panel, reserved ruling on the petitioners motion sine-die (indefinitely).

On September 6, a reconstituted panel at the tribunal, dismissed the application, and went ahead to authorize INEC not to allow the petitioner to take copy of any of the ballot papers used in the conduct of the presidential poll.

Clarifying the previous order made by the ousted PCA, Justice Salami, on May 24, the new panel told CPC that the order was not an express permission for it to “take copies” of any of such electoral materials, noting that it could only be allowed to inspect them.

At the resumed hearing on September 7, the tribunal handed CPC 10 days to prove that the April 16 general election was rigged by the PDP.

The panel while concluding pre-hearing session on the petition, also gave President Jonathan and other respondents in the matter, five days each, to respond to allegations of electoral malpractices levelled against them by the CPC, adding that all the parties would be accorded five minutes each to cross- examine witnesses that may be called against them.

On September 11, CPC went to court with a fresh application, seeking leave to tender software evidence it said would prove that INEC boss, Jega, manipulated the 2011 voters registration exercise in favour of President Jonathan.

CPC said the reason it filed the motion pursuant to paragraph 47 (1) of the 1st Schedule to the Electoral Act 2010 and/or the Court’s inherent jurisdiction, outside the pre-hearing session of the substantive petition, was due to the blatant refusal of the electoral body to grant its forensic experts access to the biometric data base of registered voters in the country.

It told the tribunal that aside Exhibits 1-14,  earlier tendered against the April 16 presidential election, it intend to submit a “Blog extracts from Lagos, GTUG, of Femi Taiwo (lead Software Developer) of INEC Open Voters Registration project (The soft ware used by INEC for voters registration).”

The next day, the Acting PCA, Abdullahi Adamu appointed a new presiding Justice, Kumai Bayaang Akaahs who was hitherto serving at the Calabar Division of the appellate court, to take over position left by the suspended PCA, Salami.

It was also the day the CPC opened its substantive case amid drama, as its National Chairman who, Momoh, who was billed to testify as a witness in the matter, was disqualified over a legal blunder that was committed by the lead counsel to the petitioner, Mallam Abubakar Malami, SAN.

CPC chairman, Momoh, who was to testify as the PW- 2 in the matter, was disqualified by the panel, few minutes after the Acting National Secretary of the party, Mr Buba Galadima, who had while testifying as PW-1 conceded that the presidential candidate of the CPC, Muhammadu Buhari, benefited from election rigging.

Galadima who made the assertion while under cross-examination, told the panel that even the states won by the CPC during the presidential poll, suffered the menace of election malpractices.

Cross-examining him, counsel to Jonathan, Olanipekun asked; “Mallam Galadima Sir, you said in your statement that election was rigged in the 36 states of the federation including the FCT, are you now telling this court that even in the area your party won, that it was rigged?”

Before Olanipekun could finish the question, the CPC scribe bellowed: “yes election was rigged even in those places! Rigging has different facets but in the general perspective, I will say yes, it was substantially rigged!”

Shortly after the other respondent took turns to cross-examine the CPC scribe on the basis of the said statement which he earlier identified as his own, counsel to the petitioner, Malami, SAN, ushered in the Chairman of the Party, Momoh as his next witness.

Malami specifically told the panel that Momoh, who was number 11 on the original list of witnesses’ tendered ab-initio by the petitioner, would rely on all the depositions he made in pages 17-55 of the witness statement on oath.

In a bid to administer witness oath on the CPC chairman, the court clerk asked him:  “Sir, are you a Christian or Muslim?”

Momoh: “I am both a Muslim and a Christian when they are not quarrelling!”

Irked by the answer, a justice on the panel, bellowed: “Mr Momoh it is a serious business we are doing here, please answer the clerk! What do you believe in?”

“I believe in God Almighty”! Momoh retorted.

To save the situation, counsel to the CPC, Malami, decided to delve into the examination-in-Chief, and pleaded the court to take judicial notice of two newspaper publications that he said would prove that the PDP manipulated the INEC with a view to ensuring that President Jonathan won the April 16 election.

It was at this point that he realized that there was a mix-up between the witness statement accredited to the CPC scribe, Galadima and that of the Chairman, Momoh.

It dawned on Malami that the witness statement and signature identified by Galadima in pages 17-55 of the proof of evidence, as his own, actually belonged to the chairman of the party, Momoh, while the evidence of the PW-1, was actually contained in pages 8-14 of the petitioners document.

Sequel to confusion created by the discovery, the panel stood down the case to enable the petitioner to resolve the discrepancy.

When the court reconvened, fresh legal fireworks commenced following an oral application by the CPC, pleading the panel to in the interest of justice, allow it to swap the testimonies of the two witnesses, a plea that was vehemently opposed by all the respondents yesterday.

According to Malami, “my lords, I want to believe that this is not a hide and seek game. The interest of justice should be uppermost. The respondents cannot be prejudiced in anyway if this application is granted. It was only a mix-up and we regret the inconveniences this may cause to the records of my lords, the spirit of justice should be allowed to prevail”, he pleaded.

“My lords, the record of this court cannot be corrected by mere oral application made by the CPC counsel from the bar, he knows what to do, let him come properly by way of an affidavit”, argued counsel to INEC, Awomolo, SAN.

While counsel to President Jonathan, Olanipekun, SAN, contended that it was late in the day for the CPC to make amends on the issue, counsel to the PDP, Gadzama, SAN, added that the court was already functus-officio on the issue, stressing that the only remedy available for the CPC was going on appeal.

“Mallam Galadima and Chief Momoh identified their signatures and statements before adopting them in the open court, it therefore constitutes evidence that cannot be interchanged, and the petitioner has reached a point of no return. This court lacks the jurisdiction to grant this kind of application that has no precedence,” Olanipekun submitted.

In a unanimous decision of all the justices on the panel, the application was refused with the panel noting that such request was a novelty in law.

After then, CPC called 44 witnesses who testified and alleged sundry malpractices against the INEC, PDP, Jonathan, and even security agencies.

Whereas some of the CPC witnesses alleged that Jonathan used scores of armed policemen and soldiers, to divert sensitive electoral materials that they said “caused compromise of the presidential election”, the party further told the panel that one of its supervisory agents in Cross Rivers State, Mr Bassey Okon, was compelled to sign a distorted final result of the presidential poll in the state, at gunpoint.

Following refusal of the panel to CPC to call more witnesses and file additional evidence outside the pre-hearing session, the party sought a subpoena against INEC chairman, saying he was deliberately frustrating its petition by refusing to grant it access to materials that would aid its case.

However, on September 21, through his lead counsel, Adegboyega Awomolo, SAN, adduced reasons why he would not tender the Biometric Data Bank containing the National Register of Voters in the country, before the tribunal, insisting that tendering such a sensitive material would endanger national security.

He therefore prayed the court to vary the subpoena issued against him on the behest of the petitioner, with a view to exempting the Biometric data bank from the list of exhibits to be tendered in the matter.

Specifically, he pleaded the tribunal for, “an order varying the Subpoena Duces Tecum and Ad Testificandum, issued by this court on 20th September 2011 and served on the 2nd Respondent/ Applicant to the extent of the agreement reached by all the parties to this petition and made the order of this court on Tuesday 24th May, 2011, that is to say, by deleting the following items:

“a) National Biometric Data Bank containing the National Register of Voters (b) Voters register evidencing accreditation (c) Forms EC8A, EC8B, EC8C used for the conduct of the election evidencing return of the results declared at the polling units, wards and local government areas, d) Certified True Copy of tabulation of ballot papers distribution evidencing the serial numbers of ballot papers shared across the country to polling units, wards and local government areas, e) Excel application used in computer summation of the result for presidential election used across the nation in the presidential election, f) Downloaded result declared in 36 states”, among others.

At the resumed sitting on Thursday, the tribunal dealt a heavy blow on the petition, by informing the CPC that it would not admit election results from 35 states of the Federation and the Federal Capital Territory, FCT, into evidence.

It was the intention of the petitioner to rely on the said results, entered into Forms EC8 of the Independent National Electoral Commission, INEC, by all its agents in different polling units across the federation, to prove that the presidential election was rigged.

CPC equally lost its bid to tender a Hard Disc, which it insisted would reveal the complicity of INEC in the alleged electoral fraud, before the tribunal.

The 5-man panel declined and marked the intended evidences, which the petition brought to court in 17 ‘Ghana Must Go’ bags, as rejected.

Despite spirited efforts by lead counsel to the CPC, Mr Oladipo Okpeseyi, SAN, to persuade the tribunal to overlook technicalities and admit the results which he said were pivotal to the petitioner’s case, the panel threw them out, though it conceded to allow 138 copies of Forms EC8A and 9 copies of Form EC8B, from Anambra state, as the only proof of evidence against the presidential election results.

All the respondents had implored the tribunal to discard results from the 35 states and FCT, contending that the decision of the petition to tender it through one of its witnesses and Mathematician, Mr Haruna Abuyayi Chonoko, was a legal anomaly, adding that he neither made nor certified the evidence he sought to tender.

While challenging the admissibility of the results, counsel to Jonathan, Dr Alex Iziyon, SAN, who was led by Chief Olanipekun, SAN, maintained that section 84(1) (4c) of the New Evidence Act, prohibited tendering into evidence, a Hard Disc, without due certification.

His argument was also sustained by the PDP, which relied on section 83 of the same Evidence Act, to insist that such evidence ought to be tendered by its maker or someone with personal knowledge of its content, a yardstick it said the CPC witness did not scale through.

However, irked by the decision of the tribunal to vacate the subpoena that was issued against INEC chairman ab-initio, CPC through its National Publicity Secretary, Mr Rotimi Fashakin, on September 28, issued a press release wherein it lambasted the tribunal panel over what it termed “a bizarre ruling.”

The CPC scribe in the said release he issued on behalf of the party, accused justices on the panel of dragging “the nation’s judiciary to the Abyss”, adding that, “as a party, we are not under the illusion that this crop of players in the Judiciary, with entrenched ‘cash and carry’ culture, can do Justice.”

Angered by the release, which was published in the September 29 edition of the Nigerian Tribune, the panel summoned the CPC scribe to appear before it on Wednesday (yesterday) to adduce reasons why he should not be committed to jail for contempt.

Aside the peripheral issues, the tribunal in acknowledgment of the limitation of time it is faced with, has ordered all the parties in the suit to prepare their written addressed for adoption on October 20.

With the development, the dice has been cast for the final judgment on the petition.

Presidential petition