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BUHARI Vs JONATHAN: When judgment is judged

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*The mutual suspicion between PDP & CPC
*What nobody told you about the presidential petition

By Ikechukwu Nnochiri

After six months of intense legal fireworks on the petition urging holistic judicial probe of the conduct of the Independent National Electoral Commission, INEC, pertaining to the April 16 presidential election that favoured the ruling Peoples Democratic Party, PDP, and its candidate President Goodluck Jonathan, one would have expected the adjudicating body to properly scrutinize every shred of evidence adduced by the contending parties, no matter how stupid it may seem, before passing judgment.

However, a situation where the adjudicating panel discards bulk of the proof of evidence a party in the matter intended to place reliance on with a view to proving that the electoral process was fraught with manifest irregularities, creates unnecessary rooms for ‘doubting Thomas’s to question the objectivity of the judgment.

This scenario may not be far fetched from the contention of the opposition Congress for Progressive Change, CPC, which has described the affirmation of President Jonathan as the bona_fide winner of the presidential contest, by the Presidential election petition tribunal on Tuesday, as “a pyrrhic victory.”

In a statement signed by its national; publicity secretary, Mr Rotimi Fashakin, CPC posited that, “ordinarily, affirmation of an electoral mandate by a Court of Law should evoke feelings of hard_won victory but not this one! The reason is not far_fetched in that this is one judicial victory that came at very huge cost.  Indeed, it is sad day for the Nation and a sad reminder that the perils of Leadership deficit shall afflict the Nation for more period than envisaged. This is so because if, through manipulative sleight of executive authority on the appropriate institutions, elections continue to reflect travesties not assented to by the People; indeed, Nigeria totters.”
What could have led them to this conclusion? Maybe a surgical analysis of what transpired at the tribunal from day one could provide an insight into the grievance of the opposition party whose substantive petition was dismissed as lacking in merit.

Specifically, the legal battle at the tribunal commenced on Sunday May 8, which was the day the CPC officially launched its bid to get the April 16 general election that brought President Jonathan into power, nullified.

Led by their National President, Prince Anthony Momoh, (a lawyer), Chieftains of the Party, on May 8, defied a heavy downpour and entered the petition at the registry of the tribunal. The suit challenged all the election results declared by the Chairman of the Independent National Electoral Commission, INEC, Professor Attahiru Jega, in favour of the PDP on April 18, 2011.

CPC prayed the Tribunal to go ahead and void results credited to President Jonathan in all the 17 states in the South, that of Sokoto, Kaduna, Plateau, Kwara, Benue, Adamawa, Nasarawa states in the North, as well as, the result announced by INEC in respect of the Federal Capital Territory, FCT.

It 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.  During the trial, CPC ccategorically fingered a local printing company, Tulip Nigeria Limited, as the firm that manufactured fake ballot papers that were allegedly used in perpetuating the alleged electoral fraud.

Exuding confidence in the powers of the judiciary to redress the situation, the opposition party, maintained that the tribunal had the requisite jurisdictional powers to nullify the election and order a re_run between it and the ruling party, PDP.  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, as expected, 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 camp of the PDP.

President Goodluck Jonathan and Gen. Muhammadu Buhari (rtd)

To exhibit his readiness, 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 seeking immediate dismissal of the suit.
The respondents on May 24 equally 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.

In seeking 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”.

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.

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.

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.

This request was still pending when the National Judicial Council, NJC, suspended Justice Salami from office over alleged judicial misconduct, a move CPC said was orchestrated by the PDP with a view to planting a stooge to take over the affairs of the election petition tribunal. Nevertheless, sequel to the ouster of Salami, on August 29 when hearing resumed on the matter, only four Appeal Court Justices, led by Justice Mohammed Lawal Garuba, sat over the application seeking Buhari’s declaration as president.

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

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.
The next day, the Acting PCA, Dalhatu Adamu, appointed a new presiding Justice, Kumai Bayang Akaas 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 CPC opened its substantive case amid drama, as its National Chairman, 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 – 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.

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.

Following refusal of the panel to allow 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.

At the resumed sitting on Thursday, May 26, 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.
Consequently, CPC was left with the hurdle of relying solely on election results from Anambra state, to establish before the tribunal that the presidential poll was rigged.

Testifying in court, a Governorship candidate of the party in Enugu State, Mr Osita Okechukwu, told the tribunal that INEC manipulated ballot papers to favour President Jonathan and his party the PDP, in the April polls.  CPC on that day boasted that it has garnered fresh evidence capable of sacking President Jonathan from office, even as it sought leave of the panel to tender additional proof of evidence in the matter.

On September 15, which was the day the panel reserved ruling on the request for additional software evidence to be tendered, CPC, through seven witnesses it called before the tribunal, alleged that President Jonathan used scores of armed policemen and soldiers to divert sensitive electoral materials that it said “caused compromise of the presidential election.”

The seven witnesses, Mohammed Lawal Sulieman, Embarage Abbayi, Ibrahim Musa, Bito Martins, Bulama Waziri and Nwagbara Ogina Chijioke Eze, alleged that they saw security operatives thumb printing ballot papers in Zamfara, Taraba, Jigawa, Abia, Cross Rivers, Sokoto and Enugu states.  Spirited efforts by counsel to the respondents to persuade the tribunal not to hear the oral evidence was rebuffed by presiding Justice Akaas, who gave the witnesses the nod to narrate their experiences.

Another witness from Cross River state, Maxwell Imiete, told the court that the state government had sent an emissary to the Chief Imam of Calabar Mosque with an explicit instruction that “he should tell his adherents who are mostly from the Northern states of Nigeria that they should vote for the 3rd, 4th and 5th respondents and that anybody who voted for the opposition (Congress for Progressive Change) on the 16th April, 2011 presidential election would be punished.”

After listening to the witnesses, the tribunal adjourned further hearing on the petition till the next day, which was a Saturday.

At the resumed hearing, the secretary of CPC in Imo State, Mr. Oge Chikaodi, told the tribunal that “the presidential election of 16th April, 2011 in Imo State of Nigeria was marred by corrupt practices, violence and violation of the regulations made by the 1st Respondent, INEC, for the conduct of the election.
Meanwhile, attempts by counsel to CPC , Okpeseyi, SAN, to tender a letter written by the Imo State chapter of the CPC to the REC, was snubbed by the 5_man adjudicatory panel, which held that there was no evidence to prove that the said letter was actually delivered to, and received by the REC.

Another witness, Mr. Ebere Ihekoronye, a member of the party in Imo State, in his depositions, also told the tribunal that there was no accreditation of voters in most polling units in the State during the election, even as he alleged that armed agents of the PDP, carted away several electoral materials.

Likewise, two chieftains of the petitioner, Elder Obinna Amadi and Prince Iyke Uwakwe, relied on grounds of manifest irregularities and pleaded the tribunal to go ahead and nullify the results credited to President Jonathan in Imo state.

On September 18, the tribunal declined to admit the new evidence CPC wanted to tender, even as it barred six of its witnesses from testifying before it.
While dismissing CPC’s application as lacking in merit, the panel insisted that the petitioner failed to show exceptional circumstance that could warrant the exercise of its discretion in its favour.
The ruling read by Justice Akaahs, read:  “having carefully considered the application and arguments canvassed for and against the application by both counsel, there is no gainsaying that the applicant is praying the court’s discretion for extension of time to call additional witnesses. In such an application as this, the law demands that the petitioner must establish an exception circumstance capable of swaying the court’s discretion to its favour.

“But in our humble opinion, the applicant has not demonstrated any exceptional circumstance before this court.
“It is on record that the respondent’s reply which gave rise to this application, has been in existence since May 2011, therefore, the issue of frustration does not arise. The applicant cannot through its own mistake be allowed to bring the application out of time.

“The petitioner was not denied access to electoral materials as shown in the exhibits before the court. Accordingly, the application is refused as it lacks in merit.”

Though counsel to President Jonathan, Mr. Damien Dodo, SAN, that of PDP, Chief Gadzama, SAN, and INEC lawyer, Chief Awomolo, SAN, took turns and eulogized the panel for dismissing the application, however, counsel to the petitioner, Mr. Okpeseyi, SAN, said the ruling was in bad faith.

Consequently, he instantly applied for a Certified True Copy, CTC, of proceedings of the court since hearing commenced on the substantive petition, a request that was accordingly granted by the Justice Akaahs led panel.
On September 19, CPC pleaded the tribunal to summon INEC Chairman to appear before it and explain why he declined to accept service of an order of the court.

A court bailiff that was sent by the tribunal to personally deliver a copy of a subpoena order that it issued against the electoral body on September 13, on its chairman, returned with the court process, alleging that security men who said they acted upon instructions, barred him from stepping a foot into the INEC premises.

The Bailiff, Mr Abubakar Mohammed, said he was asked to leave the vicinity of the electoral body even after he had identified himself and his mission.

Following the development, CPC, urged the tribunal to take judicial notice of an alleged resolve of the INEC boss, who it said was collaborating with both the Peoples Democratic Party, PDP, and President Goodluck Jonathan, to frustrate its petition.

It told the 5_Man panel of justices led by Justice Kumai Bayang Akaahs, that, “On 15th September 2011, Abubakar Moh’d, a bailiff of this court attempted to effect personal service of the sub poena on the 2nd respondent at his office located at INEC Headquarter, Maitama Abuja, he (the bailiff), despite the fact that he introduced himself as the bailiff of this Honourable Court, was refused entry into the premises of INEC by agents of the 2nd respondent.”
CPC alleged that the reason INEC refused to accept the court order was owing to uncanny roles it played towards rigging the Presidential election in favour of the ruling party.

In the end, the Justices declared that the CPC did not prove that there was substantial injury to its bid during the elections

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