SECURING VICTORY FOR ATIKU AT THE SUPREME COURT

I have read the reasoning in the just delivered Presidential Election Tribunal judgement at the Court of Appeal of Nigeria in September 2019. I must first point out that the judgment appeared like a single story. The prospect of the Supreme Court overturning that judgement, though remote in the Nigerian context, is all the same realisable as would be seen at the conclusion of this article.

Five issues were raised by the petitioners. The contentions of the Justices of the Appeal Court are that the arguments of the petitioners were not meritorious. While the author of this article is not privy to the arguments canvassed at the Tribunal by the parties, the position of the author on the decision of the Honourable Tribunal shall derive from the facts presented by the Lead Justice. I must point out that the failure or omission of the Lead Justice to lay out the relevant pleadings of the parties in the judgment will go a long way to curb the latitude with which there could be an exhaustive interrogation of the reasoning in the judgment.

The Presidential Election Petition Tribunal judgement has come and gone with all the Issues for Determination as raised by the petitioners resolved against the petitioners, and Buhari declared winner. Atiku's petition was dismissed for lacking in any merit, and thus thrown into the judicial dustbin. The five Issues for Determination at the trial were as follows:

1. Whether Buhari was qualified to contest the presidential election 

2. Whether Buhari sent an affidavit laden with false information in aid of his qualification 

3. Whether Buhari was duly elected through majority of votes cast at the election

4. Whether the election was invalid by reason of electoral corrupt practices 

5. Whether the election was invalid by reason of noncompliance with the electoral laws

These 5 issues were thrashed at the Tribunal. The petitioners were said to have failed to prove any of them. This article aims at discovering whether the trial Tribunal was absolutely right in its holding that petitioners failed on all the issues they brought before it, and whether there is any hope for the petitioners at the Appellate Court.

At the buildup to the judgment, it was shocking and curious of the level of emphasis the petitioners placed on the Buhari's Certificates saga as if they mattered. This author was not at the trial proceedings and so did not know what transpired there. All the same, it was thought and believed that the petitioners would dwell more on the rampant corrupt practices and evident noncompliance with the electoral laws during the election; rather than harp on Buhari's non-existent Certificates.

Contrary to the above thoughts and beliefs, it appears that the reverse is the case now. It now appears that the only issue that the petitioners have any iota of sustainability at the appellate Court is the issue on Buhari's Certificates and qualifications.

The Tribunal made it clear that to prove issues 4 and 5, the petitioners must lead evidence in support of their allegations at all the affected polling units. This will invariably mean that the petitioners should have to call over 200,000 witnesses who were PDP agents in the over 200,000 polling units of Nigeria. This is if polling points equated to polling units. We shall still remember that the tribunal had 180 days to tidy up the whole suit. More than half of these days are used for other Court proceedings than the call of witnesses, thereby leaving us with about 90 days for the calling of witnesses. Assuming Court sat from day to day without observing public holiday, then, how possible is it to call 200,000 witnesses within 90 days, with each witness led in Chief, crossed and reexamined! Even if it is argued that about half of the national polling units were involved in this dispute, how possible is it to call even 100,000 witnesses in 90 trial days. That would be about 1000 witnesses in one day. This is a ruse. The Tribunal failed to acknowledge that the law did not command impossibilities. This position of the Tribunal, supported by an avalanche of Supreme Court decisions, needs to be tested at the appellate Court in the coming months. While this position needs to be struck down for want of statutory or legal basis, election petition being sui generis, the hope of striking it down in the Nigerian context is practically an impossibility.

The author of this article must also point out the illegality of the Smart Card Readers as used by INEC to dupe Nigerians at the elections. The card was wasteful, punishable and illegal dummy sold to Nigerians. In a sane clime, the INEC Chairmen would be in gaol by now. Section 52 of Electoral Act prohibits electronic voting. Section 49 of the Electoral Act specifies procedure for accreditation and voting which does not admit of smart card authentiaction in any way. Yet, the INEC Exhibit 27 made the use of the illegal smart card compulsory for the election, with the nonuse of same punishable. And yet, the Electoral Act absolves an INEC official of any wrong doing if he refused to use the card. Wike v Dakuku 2016, curiously in the view of the author of this article, states that Smart Card Reader was not in conflict with the Electoral Act and the Constitution of Nigeria. The petitioners were well aware of this Supreme Court judgment until the uninterogated Wike v Dakuku 2016 wreaked havoc on them in 2019. If the law specified that all that a voter is required to do to be eligible to vote in an election is to present his voters card without further verification, INEC cannot arrogate the power of verification of the voter to itself by bringing in a compulsory Smart Card Reader. How the Supreme Court found that there was no conflict with extant laws in this adopted procedure is confounding. What is more conflicting than coming to vote in an election that the Constitution of Nigeria and the Electoral Act had imbued the voter with the constitutional right to vote on presentation of his voters card without further verification, only for him to be asked to be verified using a faulty machine that only malfunctions, hampers and delays the voting process. Worse still, he will be allowed to vote even when the machine has rejected his finger!!! This illegality, deceit and wastefulness was taken even further by the INEC when they made Nigerian public believe that election results would be transmitted electronically. The petitioners sheepishly followed suit in the whole illegality hoax that informed their furtive and prolonged arguments on INEC Server.

This takes us to issue 3 which is about the computation of the total votes garnered by the presidential election candidates to know who secured the highest number of votes. The Tribunal  maintained that the expert witness of the petitioners who did the computation of results for the court was incompetent. In fact, the trial Tribunal in its discretionary powers, decided that the expert witness did not qualify to be an expert witness in that regard because he was not an expert in Electoral Laws. This decision of the trial Tribunal does not go down well with the author of this article as the decision was not backed by any law in Nigeria. If this Tribunal  fought tooth and nail to retain a Nigerian whom the existence of his certificates is heavily in doubt as the President of the whole Nigeria, what justifiable discretion does the court now have to bar anybody who could do ordinary math from adding up elementary numbers. What is more; there is no law in Nigeria that specified the qualification of a witness that can add up electoral figures. The Evidence Act 2011 was turned upside down on several occasions. The computation of electoral votes fall way outside expert witnessing. It is within the competences and functions of the Tribunal to do the calculations or to call in a person to do the calculations for the Tribunal. In the end, the said computation was jettisoned, thereby making it impracticable to know if the votes as announced by INEC conflicted. While this position needs to be struck down for want of legal basis, the hope of striking it down in the Nigerian context is practically an impossibility.

Having said this much on the difficult terrains of the petitioners, it is now ripe for me to talk about the only possible issue that can be won at the Supreme Court. This is issue 1. Issue 1 talks about qualifications while issue 2 talks about false affidavit. The issue of false affidavit need not be discussed in this article before Issue 1 could be sustained.

On qualification, the contention of the author of this article is not that Buhari was not qualified for the presidential contest. The author lacks the capacity to make categorical statement on that. The contention, however, is that the petitioners have proved, that based on his application for the presidential election as a candidate, and the lack of vital evidence of the electoral umpire which is critical in this petition, Mr Buhari did not qualify to contest for the election. The 2nd Respondent was not able to show, through his election applications filed at the Tribunal, that he was indeed qualified to contest the presidential election. It is not the duty of the Tribunal to scout for evidence of qualification on behalf of the 2nd Respondent. The Court shall follow the Pleadings of the parties, and shall not allow the parties to depart from their Pleadings. The provisions of the Constitution of Nigeria on qualification to contest for president is as follows.

131. A person shall be qualified for election to the office of President if—(a) he is a citizen of Nigeria by birth ; (b) he has attained the age of forty years ; (c) he is a member of a political party and is sponsored by that politicalparty ; and (d) he has been educated up to at least the School Certificate level or its equivalent.

318 (1). "School Certificate or its equivalent" means—(a) a Secondary School Certificate or its equivalent, or Grade II Teacher's Certificate, the City and Guilds Certificate ; or (b) education up to Secondary School Certificate level ; or (c) primary Six School Leaving Certificate or its equivalent and—(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and (ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and (iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission ; and (d) any other qualification acceptable by the Independent National Electoral Commission.

Section 318 (1) is divided into two groups namely qualifications provable by the candidates (a&b) and qualifications provable by INEC (c&d). In the first group, it is either that the candidate has a secondary school certificate, or that he was educated to the secondary school certificate level. In the second group, the candidate must have a primary school certificate. This is because while a, b and c were joined by disjunctives; c and d were joined by a conjunctive. The literary meaning of this provision is that any candidate who belonged to the second group must present his primary school certificate in addition to the INEC satisfaction. It was pleaded and supported in evidence that Buhari did not present any certificate whatsoever in his application. That meant that he could not benefit from section 318 (1) (c&d) of the Constitution of Nigeria. The trial Tribunal tried so hard to muddle up these clear and distinct provisions of the Nigerian Constitution.

It must be stated for clarity that even if Buhari presented his primary school certificate or its equivalent, he would still have failed to win the resolution of that issue as the satisfaction or approval of INEC was not seen to have been obtained. INEC did not lead evidence as to what satisfied it to allow Buhari to contest the election. Court suo motu, and without evidence, gleaned presumed reasons to prove INEC satisfactions and approval of Mr Buhari. This is not our law. Tribunal showed the pleading of Petitioners on qualification but refused to show the Pleading of the Respondents in defence. Judgment however showed that the 2nd Respondent did not in fact rely on INEC discretionary powers as required by the Nigerian Constitution; yet, the Tribunal premised its judgement on such reliance.

It must also be noted that INEC discretionary powers can only be found in INEC documents like the electoral guidelines, regulations and the laws; and not on the opinions and behaviors of its human agents. There is nothing in the INEC guideline on how to prove educational attainment or INEC satisfactions or approvals other than production of certificates. The approval or satisfaction of INEC can only be found in a clear guideline, and not in the minds of the INEC officials. Court refused to find on pleadings of the parties and called finding of facts an investigation. INEC satisfaction or approval is not the same thing as the whimsical satisfaction or approval of INEC officials. INEC's satisfaction is not found in the satisfaction of INEC officials following their personal dictates and not the clear dictates of INEC regulations. INEC is an inanimate person working through human agents. The mind, soul and intention of INEC is not in the individual and whimsical minds, souls and intentions of its human agents. The mind, soul and intentions of INEC is found in INEC documents. It is the letter of these documents that the human agents of INEC implement. These documents are open to INEC agents and affected individuals alike. The wishes of INEC are to be found in its documents be they Rules or Regulations. To satisfy these wishes, one must respond to clear provisions of the Rules which shall apply equally to all candidates. The question as to the satisfaction of INEC can only be answered by showing the part of the Rules specifying how to provide or prove educational attainment and qualification and not an illegal presumption that if INEC officials allowed a candidate to contest, that the candidate has satisfied INEC. By allowing a candidate that did not meet INEC clear regulations on how and what to submit to INEC to contest elections, the INEC officials have performed outside their legal mandate;  and all those illegal functions are bound to be rendered void by the tribunal. Neither did INEC provide documents on its satisfying requirements for candidates that have primary certificates prior to the election nor did it present any evidence of such qualifying requirements at the tribunal. This is fatal to the 2nd Respondent who presume relied heavily on INEC discretionary powers.

We can now move to the candidates that fall under the first group above. The 2nd Respondent must rely as it were, not on the existence of a secondary school certificate, but on the proof that he attained secondary school certificate level of education. The submission of a school certificate to INEC carries with it the presumption of regularity on the Respondent. The burden of proving that the certificate is not true lies on the petitioners. There will generally be no requirement to prove the authenticity of the certificate or that Buhari actually had that level of education. However, the reverse is the case where there is no certificate attached. Where a candidate did not attach a certificate showing academic attainment or qualification as required by the INEC regulation, the mere affidavit of educational attainment other than the certificate, is not enough grounds to have the burden of proof on the petitioners. A challenge of the contents of an affidavit, in the face of no certified true copy of the lost documents, is a call on the respondent to come and prove the contents. The burden of proof was on the 2nd Respondent who had no presumption of law in his favour, and not on the petitioner. The contents of such an affidavit are documentary hearsay and thus incompetent, as the 2nd Respondent did not make the certificate which the affidavit alleges to prove. An affidavit of loss of certificate only proves the loss of the certificate but does not prove the existence of the certificate. Petitioners are contesting the existence of the certificate and not the possibility of its loss which the affidavit is all about.

The law is very clear on the qualification of candidates to contest the presidential election in Nigeria. The burden of proof depends on who is alleging. Allegations and refutal are not the same thing. Refutal only calls the person alleging to come and prove, while allegations calls on the person alleging to come and prove. An issue raised by a party can imply an allegation or refutal. Courts must place the burden properly on the person alleging and not the person refuting the allegation. If a party does not have a certificate but alleges that he has in an affidavit, the burden of proving that he has a certificate lies on him. The burden does not lie on the person refuting that he has the certificate. If the Supreme Court holds otherwise, then, the requirements for certificates in any applications has become redundant and an outright futility. Where a party loses a certificate, there are laid down procedures for obtaining a replacement. Where this procedure is not available to the party because of antiquity, then it all means that the party needs to go and rest as being out of circulation. An affidavit does not prove the presumption of the regularity of its content or exhibits where the deponent is not the maker of the content or exhibits of the affidavit.

This article does not hold any prospects for the petitioners in the contemporary Nigerian situation. The only time the Supreme Court can overturn the judgment of the Presidential Election Tribunal 2019 is if Buhari just disappears. The equation will change, and the power hawks who live on power being in the North will then see the "absurdities" in the Tribunal judgment.

Awkadigwe Fredrick Ikenna 
awkadigweikenna@gmail.com
08039555380