Respondents in the petition by the Peoples Democratic Party (PDP) and its candidate, Atiku Abubakar, are expected to open their case on July 29 before the Presidential Election Petition Court (PEPC), the petitioners having closed their case on July 19. ERIC IKHILAE examines the happenings in the court, which began sitting on May 8, 2019.
THE legal disputation over the outcome of the last presidential election, ignited by the Peoples Democratic Party (PDP) and its candidate, Atiku Abubakar, is entering its final stages with the petitioners’ closure of their case.
The PDP and Atiku, who had planned to invite about 400 witnesses, could only call 62 and tendered loads of documents when the 10 days, within which they were required to conduct their case, lapsed on July 19, 2019.
Atiku has not set a foot into the court’s sitting venue since proceedings opened in the case on May 8, 2019. He also did not testify in the petitioners’ case. His running mate, Peter Obi, who frequents the court, did not also testify. No principal officer of the PDP also stepped into the witness box while the petitioners’ case lasted.
When the lead petitioners’ lawyer, Chris Uche (SAN) announced after the testimony of PDP’s National Collation Officer, Osita Chidoka, that the PDP and Atiku were done with their case, the Presiding Justice of the Presidential Election Petition Court (PEPC), Justice Mohammed Garba, adjourned till July 29 for the respondents to commence the conduct of their cases.
Beginning from Monday, attention will be directed at the three respondents, who are expected to conduct their cases within 18 days (with each allocated six days), commencing with the Independent National
Electoral Commission (INEC).
How it began
The PDP and Atiku took their discontent with the outcome of the 2019 presidential election to court when, on March 18 this year, they lodged a petition before the Registry of the PEPC, sitting at the Abuja division of the Court of Appeal.
In the main, Atiku and the PDP are challenging the election of President Muhamadu Buhari of the All Progressives Congress (APC) for a second term on the grounds of alleged massive rigging, malpractices and non-compliance with the electoral laws.
Listed as respondents to the petition are the Independent National Electoral Commission (INEC), Buhari and the APC.
The grounds on which they rested their petition include that “the 2nd respondent (Buhari) was not duly elected by majority of lawful votes cast at the election; the election of the 2nd respondent is invalid by reason of corrupt practices and that the election of the 2nd respondent is invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended).”
They are particularly focusing on 11 states, namely Borno, Yobe, Bauchi, Gombe, Jigawa, Kaduna, Kano, Katsina, Kebbi, Niger and Zamfara, where they claimed INEC and its agents “wrongly and deliberately entered wrong results.”
The petitioners claimed to have won the election based on the result they said they obtained from a supposed central server into which INEC allegedly transmitted and stored the election results.
The petitioners contended that, “from the data in the 1st respondent’s server, as between the 1st petitioner (Atiku) and the 2nd respondent (Buhari), the true, actual and correct results upon a state to state computation” reflects that the PDP/Atiku scored 18,356,732, while APC/Buhari scored 16,741,430.
The petitioners also challenged the election on grounds of qualifications, claiming that the “2nd respondent was, at the time of the election, not qualified to contest the said election; the 2nd respondent submitted to the 1st respondent (INEC) an affidavit containing false information of a fundamental nature in aid of his qualification for the said election.”
They are praying to be declared winner of the February 23 presidential election. In the alternative, they want the court to nullify the election results and order a fresh election that will be conducted in line with the provisions of the Electoral Act 2010.
PDP’s National Legal Adviser, Emmanuel Enoidem, while announcing the filing of the petition on March 18, 2019 in Abuja, sounded optimistic about the success of the petitioners’ case.
Enoidem said: “We are here to present our joint petition for our party, the PDP, and our candidate. The last day for the petition is actually tomorrow, but we decided to file today. We asked that our candidate, who won the election massively across the country, be declared the winner of that election.
“In the alternative, we also asked that the election be set aside on the grounds of irregularities, which were very apparent across the country.
“We have a pool of 20 Senior Advocates of Nigeria (SAN) who are tested in election petition matters, and other senior lawyers who are also working with them. So we are very ready for the petition. The petition is well packaged. The depositions are well put together.
“More than 400 witnesses are going to testify in this petition. Nigerians are at home with what happened on February 23 in this country in relation to the sham they called election. Of course, we are going to re-present the facts to Nigerians, as the facts are already in the domain of Nigerians. We are not going to manufacture facts.”
Buhari, INEC and the APC filed separate responses in the petition, in which they faulted the petitioners’ claims and urged the court to reject their prayers and dismiss the petition.
On his part, Buhari said he was more qualified than Atiku to stand for election. He denied supplying INEC false information about his academic qualification.
The President gave his educational resume as: “Elementary School, Daura and Maid’adua (1948-1952), Middle School, Katsina (1953-1956), Katsina Provincial Secondary School, now Government College, Katsina (1956-1961).”
Buhari said in a court document filed by his lawyers led by Wole Olanipekun (SAN), that he had not “at any time, provide any false information in Form CF001 submitted to the lst respondent, either in 2014 or 2018. The affidavit of compliance to the 2019 Form CF001 was correct in every material particular.
“In filling Form CF001 in 2014 and 2019, respondent (Buhari) was not oblivious of the constitutional qualifications stipulated in Section 131 of the Constitution and interpreted in Section 318 of the same Constitution.
“Petitioners themselves are also not oblivious of the fact that respondent possesses far more than the constitutional threshold expected for a candidate contesting for the office of President of the Federal Republic of Nigeria.
“The respondent avers that he is far more qualified, both constitutionally and educationally, to contest and occupy the office of President of the Federal Republic of Nigeria than the 1st petitioner (Atiku); and that in terms of educational qualifications, trainings and courses attended, both within and outside Nigeria, he is head and shoulders above the 1st petitioner in terms of acquisition of knowledge, certificates, laurels, medals, and experience.
“Respondent states further that it is the 1st petitioner who is not qualified to contest the office of President of the Federal Republic of Nigeria, and challenges the educational credentials and certificates of the 1st petitioner. 1st petitioner is hereby given notice to produce and tender his educational certificates, indicating the schools attended by him, with dates.”
In its response, the APC, besides faulting the petitioners’ claim about the election and its outcome, queried Atiku’s qualification to stand for election, on the grounds that he (Atiku) was not a Nigerian by birth and was not qualified to contest the election by virtue of Section 131(a) of the Constitution, which provides that a person must be a citizen of Nigeria by birth to be qualified to contest the office of the President of the country.
The APC argued that Atiku “had no right to be voted for and returned in the election to the office of President of the Federal Republic of Nigeria held on Saturday 23 February, 2019, having regard to the clear provision of Section 131(a) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended, which unequivocally stipulates inter alia, that for a person to be qualified for election to the office of President, he must be a citizen of Nigeria by birth.
“The 1st petitioner is not a citizen of Nigeria by birth and ought not to have even been allowed, in the first place, to contest the election. From available records, the 1st petitioner was born on the 25th November, 1946 in Jada, Adamawa, in Northern Cameroon, and is, therefore, a citizen of Cameroon.
“His father was Garba Atiku Abdulkadir, who died in December, 1957. Prior to 1919, Cameroon was being administered by Germany. “But following the defeat of Germany in World War I, which ended in 1918, Cameroon became a League of Nations mandate territory which was split into French Cameroons and British Cameroons in 1919.
“British Cameroons was administered by the British from neighbouring Nigeria.
“In 1961, a plebiscite was held in British Cameroons to determine whether the people preferred to stay in Cameroon or align with Nigeria.
“While Northern Cameroon preferred a union with Nigeria, Southern Cameroon chose alignment with the mother country.
“The transition took place on June 1, 1961. It was as a result of that plebiscite that Northern Cameroon, which included Adamawa, became a part of Nigeria, and by derivation, the 1st petitioner became a citizen of Nigeria, but not by birth.
“The 1st petitioner, therefore, contrary to the assertion in Paragraph 1 of their petition, had no right to be voted for as a candidate in the election to the office of President of the Federal Republic of Nigeria held on 23rd February, 2019 across Nigeria,” it said.
The APC, while praying the court to dismiss the petition, argued that by reason of Atiku not being qualified to contest the election, all the votes purportedly cast for the petitioners at the 23 February, 2019 election and as subsequently declared by INEC on the 27th of February 2019, were wasted votes.
Petitioners open case
Trial commenced in the case on July 4, 2019 when the petitioners opened their case by tendering documents, mostly result sheets from some of the 11 states where they were challenging election results, beginning with Yobe and Niger.
Former Minister for Education, Prof. Ben Nwabueze (SAN), made an appearance for the petitioners on July 4, 2019. Brought into the courtroom on a wheelchair, Prof Nwabueze, who announced his appearance as leading the petitioners’ legal team, addressed the court while sitting and urged the court to ensure justice and dwell less on technicality.
He said: “The February/March 2019 general elections have come and gone, but the generality of Nigerians seem agreed that something was wrong with them, particularly the February presidential election.
“They suspect that the latter was manipulated or, in more familiar language, rigged. What is not known is how or by whom the rigging was done.
“An Election Tribunal/Court is now saddled with the task, an intractable task, of finding out the truth about what happened.
“The task before it is made intractable by what Justice Kishna Iyer of the Indian Supreme Court referred to as ‘the tyranny of procedure, the horror of the doctrine of precedent, with its stifling and deadening insistence on uniformity, and the booby traps of pleadings.’
“The decided election cases show the Election Tribunal/Court to have succumbed all too readily to these constraining factors, but Nigerians still expect it to rise above the self-imposed shackles in order to find out the truth about what happened during that election.
“The Tribunal/Court owes it as a duty to the country to do so, as the discovery of the truth will help to set us free from the scourge of electoral malpractices.
“As the Court of Appeal and the Supreme Court have stated in several cases, see e.g. Buhari v. Obasanjo (2005) 2 NWLR (Pt 910) 241, 415(CA); All Progressive Congress v. Peoples Democratic Party (PDP) & Ors [2015] 15 NWLR (Pt. 1481) 1 pages 73 and 81 (SC) election petitions are sui generis proceedings, established, not for the purpose of adjudicating disputes arising in dealings or transactions between individual persons, but for the purpose of enabling the political community to choose, in free and fair election, persons to manage public affairs on its behalf and for the benefit of all its members, which makes largely inappropriate the technicalities of the law of pleadings and evidence applicable in ordinary cases between individual persons.
“An election petition is not such ordinary case; it is sui generis, to which the technicalities of the law of pleadings and evidence may not be appropriate.
“And the Judicial Committee of the Privy Council has said that a tribunal is not deprived of the character of a court nor its decisions the character of judicial decisions simply because it is empowered by statute to decide as it thinks just and equitable or according to equity and good conscience, inasmuch as the effect of such a power given to a court is not to exonerate it from all rules of law: Peacock v Newton Marrickville and General Co0operative Building Society No. 4 Ltd (1943) 67 CLR 25.
“An approach based on law, but moderated by what is just and equitable in the interest of peace, security and good governance of the community is what is needed in election cases; not a rigid adherence to the technicalities of the law of pleadings and evidence and the doctrine of precedent,” he said, shortly after which he left the court.
At Nwabueze’s exit, Livy Uzoukwu (SAN), who had led the petitioners’ legal team until the previous day, took over as the tribunal proceeded with the trial scheduled for the day, during which the petitioners tendered result sheets from polling units, wards and local government areas in two states—Niger and Yobe.
After tendering the last set of copies of the results sheets from Kano State on July 8, 2019, the petitioners also tendered a Form CF001, containing personal information of President Muhammadu Buhari and a bundle of documents, which the petitioners said were obtained from the National Archive in Kaduna.
They later, on the same July 8, called their first set of witnesses, six in all, beginning with Buba Galadima, an ardent critic of President Buhari, who was led in evidence by Uzoukwu (SAN). He adopted his written statement, in which he queried Buhari’s educational qualification and, under cross-examination, explained his relationship with the President and why he fell out with him.
While being cross-examined by Olanipekun (SAN), Galadima said he supported the President’s presidential ambition in 2003, 2007 2011 and 2015 because he was convinced that he (Buhari) was qualified to lead the country.
He said: “On the four occasions that I supported him, I was convinced he was qualified to be the president of the country. I know he was military head of state between 1983 and 1985,” he said.
Galadima said he did not fall out with Buhari because he was not made a minister, but owing to the President’s failure to abide by their promises to provide quality and fair leadership.
“I fought past governments. We made promises to Nigerians to provide good governance, inclusiveness, provision of amenities, but he (Buhari) failed to fulfil these promises. That is why I fell out with him,” he said.
Galadima said his daughter, Zainab Buba Galadinma, was not currently a Special Assistant to the President, but was appointed a board member of the Film Corporation in Jos.
He said his daughter was one of the most qualified Nigerians in this government, and that having contributed immensely to Burahi’s electoral success, she deserved any appointment.
The witness confirmed that Buhari was a military Head of State between 1983 and 1985 and that he addressed Nigeria in many languages, including English.
Under cross-examination by lawyer to the APC, Lateef Fagbemi (SAN), Galadima said although he was still a member of the APC, he worked with the PDP in the last presidential election because Buhari betrayed their promises to Nigerians.
Galadima said he knew there was no political party called the Reformed All Progressives Congress, but that he is its Chairman.
“I am not a member of the PDP, but we had an understanding with the PDP to provide Nigeria good governance and a God-fearing leader, not what you have now.”
Galadima said he travelled outside the country when INEC displayed the names of candidates before the last presidential election, for members of the public to scrutinise their qualification and complain where necessary.
Under cross-examination by lawyer to INEC, Yunus Usman (SAN), Galadima said he voted during the election and retired to his party’s situation room thereafter, to receive reports from their agents.
The video game
AS part of their efforts to prove their claim of the existence of an INEC central server, the petitioners, on July 15, called as a witness, Segun Showunmi, who introduced himself as the Media Adviser to Atiku. The petitioners tendered about 48 video compact discs (VCDs) through him.
Although lawyers to the respondents – Yunus Usman (SAN) for INEC; Izinyon, and Adeniyi Akintola (SAN), for the APC objected to the admission of the VCD in evidence, the court, in a ruling, overruled the respondents’ objection.
Upon the ruling, Chris Uche (SAN), who led the witness in evidence, applied that some of the videos be played. Three of the CDs were played.
The first was a recording of a television programme – “Sunday Politics” – which featured an interview with an INEC official, Mike Igini (who served as INEC’s Resident Electoral Commissioner (REC) in Akwa Ibom State.
In the video, Igini gave details of INEC’s preparation for the last general elections, emphasising the planned use of card reader for accreditation and electronic transmission of election results through a central server.
The second video showed an official of the Army, who claimed not to have neither original, photocopy or statement of the West Africa Examinations Council (WAEC) in President Buhari’s personal file.
The third video showed INEC’s chairman at a meeting with some members of the Computer Registration Council of Nigeria (CRCN) during which he, among others, spoke about INEC’s plan to deploy technology, particularly a new platform for electronic collation and transmission of results.
Under cross-examination by Usman, Showunmi admitted being aware of other interviews granted by the INEC chairman, particularly those of February 6 and 8, where he spoke about the impossibility of transmitting results electronically.
When asked if he could produce his letter of appointment as Atiku’s media aide, the witness said he was not with the letter, but that it could be in his house in Lagos.
Showunmi said he knew Igini, and agreed with the INEC lawyer that, in the video marked Exhibit P74, Prof. Yakubu only hoped that “election results may be transmitted electronically, not that it will be transmitted electronically.”
The witness also agreed with Usman that the interviews contained in the videos showing Igini and Yakubu, were all done before the election.
Under cross-examination by Izinyon, Showunmi said he was aware of INEC chairman’s interview of February 6, 2019 where he said electronic transmission would not be possible.
Izinyon brought out a CD, which he wanted to play for the witness to confirm if that was the interview the witness admitted being aware of.
Uche promptly interjected and objected to playing the video through his witness. Upon the intervention of the court’s Presiding Justice’ Justice Garba, Uche said the respondent should bring their gadgets to play their video.
Uche added: “My Lord, these are our equipment,” pointing to the flat-screen television set and CD player mounted in front of the courtroom. “We brought them to play our CDs. They should bring their own.
“In digital world, there is what they call virus that may affect our gadgets if the CD is played on it,” Uche said, following which Izinyon sought an adjournment untill the next day to enable him fetch his own equipment.
On the next day, July 16, Izinyon made good his promise to provide his equipment, with which the DVD, containing a recording of the INEC chair’s interview of February 6, 2019, which he granted a private television station.
In the video, Yakubu explained that INEC jettisoned the plan to transmit election results electronically owing to two other challenges besides the legal constraint.
The INEC Chair said before the elections, INEC officials met with telecommunication experts in the country, drawn from the Nigerian Communications Commission (NCC) and the telecoms service providers, during which two main challenges were identified.
The first, he noted, was the inadequacy of telecommunication infrastructure across the country.
The second, Yakubu said, was that of cyber insecurity challenges, which he added, had marred such experiments (electronic transmission of election results) in some other countries.
Yakubu said: “On the issue of transmission of results electronically, I recall that we had some discussions with the Nigerian Communications Commission (NCC). And through the NCC, we had meetings with the telecoms service providers.
“And we have identified blind spots in Nigeria (areas without telecommunication coverage). Besides the issue of blind spot, we also have discussions with the Nigerian Communications Satellite (NIGCOMSAT). We have not concluded our discussion with the Nigerian Communications Satellite in that respect.
“There are two issues. The first one was ccommunication. With respect to the blind spots, how do you communicate? Secondly, the percentage of the country that is covered by 2G, let alone 3G or 4G network, and there are no 5/ in Nigeria is very small.”
He said, in view of the inadequacy in the available telecommunication infrastructure in the country, the commission concluded that it was impossible to adopt the electronic method of election transmission, because the plan was not only to send figures, but in addition to (send) pictures of forms containing details of the election results.
Yakubu added that his commission concluded that way “because sending figures is different from sending images. So, we have challenge in the area of communication.”
According to the INEC chairman, the second problem was that of security, particularly in relation to cyber security. He cited examples of countries like Kenya and others which tried electronic transmission of results but experienced security challenges.
After the video was played with the equipment brought by Izinyon, Showunmi, who resumed his testimony the following day, said he could not identify the INEC Chairman and his interviewer in the video played by the respondents.
The previous day, Showunmi had no challenges identifying Yakubu, Igini and the official of thetelevision station who anchored the interviews, when the DVD were played. But on July 16, when the DVD brought by Izinyon was played, the witness (Showunmi) stunned all when he had difficulty identifying the same people.
“Well, the first person looked like the INEC Chairman. It is not too clear…” the witness said;. a development that sparked laughter from the audience.
Thereafter, Izinyon proceeded to tender the single DVD along with a certificate of compliance, which were both admitted by the court, despite objection by the petitioners’ lawyer.
Justice Garba advised Uche to include the reason for his objection in his final written address, as agreed by parties at the pre-hearing session.
The mysterious server
Many of the witnesses called by the petitioners spoke about the existence of an INEC server, but none was able to provide necessary information about the identity of the said server, its location and address.
On July 8, three of the petitioners’ witnesses—Peter Obi, Adejuyitan Olalekan and Adedokun Adeoye—claimed they transmitted results to INEC server at the conclusion of the last presidential election, as claimed by the petitioners.
Obi said he acted as Registration Area Technician (RATECH)/E Collation Officer, appointed by INEC and trained by INEC.
The witness said he was in charge of supervising election in a ward and that his superiors were the Local Government Technician (LG TECH) and the State Technician (State TECH).
Under cross-examination by Fagbemi, Obi said he could not remember the polling units where he worked during the election, and did not use smart card reader on the day of election.
Olalekan, who said he acted as INEC Presiding Officer during the election, told the tribunal that he was a lecturer at the African Thinkers Community of Inquiry College of Education (ATCOI COE).
The witness said he transmitted results to the INEC server, using a code provided by INEC.
“The server is connected to the smart card reader. I don’t not know the name and number of the server. The INEC server’s name is attached to the INEC server,” he said.
The witness said he could not remember the code issued to him. He also did not reflect the said code in his written statement.
Olalekan said the election went well in his polling unit and that no incident of card reader malfunction was recorded.
Adeoye said he acted as an Assistant Presiding Officer during the election and that he transmitted results to INEC server. He could not recall the scores recorded by political parties in his polling unit. He also could not recall the number of political parties that contested the election
The witness, who claimed to have transmitted results to INEC server, using card reader, said he did not provide particulars of the card reader, server code and the location of the said server in his written statement.
Adeoye also said he could not recall them.
Another set of key witnesses called by the petitioners on July 19—Osita Chidoka and David Ayu Nyango Njoga—failed to substantiate their claim to the existence of a server. The two said they got information that INEC transmitted results of the last presidential election electronically to a server.
Njoga was introduced by Uche as the petitioners’ expert witness. The witness proceeded to describe himself as an Information and Communications Technology (ICT) expert from Kenya.
The witness said he was engaged by the petitioners to analyse results of the election as obtained from INEC server and stored in a website: “www.factsdon’tlieng.com.”
When asked whether it is INEC who owns the website, the witness said no, but that the data it contained were from INEC’s server. Njoga, who said he had never worked in INEC, claimed that the website: “www. facts don’tlieng.com” was owned by an INEC official who provided the election result figures. When asked to name the said INEC official, the witness said: “My Lord, the INEC official is anonymous and I do not know him.”
Under cross-examination by the leader of President Buhari’s legal team, Chief Wole Olanipekun (SAN), Njoga said the website was created on March 12, 2019. When reminded that the presidential election held on February 23 and the results released before March 12, the witness kept mute. (The Nation)
