© 2019 - International Centre for Investigative Reporting
[Live Update] Buhari vs Atiku: Tribunal ruling on 2019 election
The Presidential Election Petition Tribunal (PEPT) has denied the Independent National Electoral Commission (INEC’s) request which sought to dismiss Atiku Abubakar’s prayer to disqualify Muhammadu Buhari as the President on the ground that he was not qualified to contest for the 2019 presidential election.
The tribunal is at this time delivering judgement on the petition filed by Abubakar, the presidential candidate of the Peoples Democratic Party, PDP against Buhari, the All Progressive Congress APC Party’s candidate’s election.
The tribunal also dismissed preliminary objections filed by INEC asking the court to dismiss the PDP’s petitions on the 2019 presidential election.
The tribunal further dismissed INEC’s allegation that PDP’s counsel, Levi Uzoukwu, is not a legal practitioner.
Arguments by President Buhari that Abubakar did not qualify to file the suit challenging his emergence as duly elected was also dismissed.
The allegation that President Buhari used government fund to lure voters as contained in the petition was also struck out.
The tribunal also dismissed the allegation that President Buhari unduly used to his advantage instruments of the state such as security agencies was also struck out.
1:39 The Tribunal resumes sitting
1:42 Tribunal reads out the petitions of the petitioners to include that the election of the second respondent is invalid.
That the second respondent as at the time of the election was no qualified as at the time of the election.
1:57 The case of the first respondent is that the second respondent was duly nominated, he conducted the election and won.
1:58 The second respondent was declared the winner and given the certificate of return after which the matter was subjected to the tribunal.
1:59 Section 131 and 137 of the Constitution are relevant to the tribunal and a person can contest if he is a citizen of Nigeria, has attained the age of 40 years…
2:00 A person cannot contest for president if the person is a lunatic or declared incompetent due to medical reason.
2:02 If the person is empowered by the civil service, a member of any secret service or has presented a forged certificate to INEC.
2:04 The petitioner insisted that the second respondent does not have the primary school certificate but the second respondent maintained he has the required certificates and post-primary and secondary certificates.
2:06 The second respondent says he went to military school from 1961 to 1963.
2:07 The defense Counsel, however, noted that other qualifications does not matter but the second respondent has the primary school certificate which is the requirement mandated by the electoral commission.
2:09 Based on the provisions of the Electoral Act, he says other requirements may not matter except for the statutory requirement.
2:11 The Form Exhibit A has been taken care of on Section 31 of the Electoral Act. He says the candidate is not required to attach his certificate before he is considered competent to contest for the election.
2:16 The Electoral Act says it is not only the presentation of certificate that makes the second respondent or a candidate qualified to contest for the election.
2:18 The petitioner’s case is frivolous
2:19 The second respondent went through the military after his secondary school education but the petitioners in Paragraph 4 submitted that the second respondent gave false information and submitted to INEC when he said all the information and credentials have been submitted to the secretary to the military board.
2:20 The Army further disclaimed the claim of the petitioner.
2:21 With no one to confirm the authenticity of the report, and no witness to cross-examine, the court insisted such document must be submitted through by the source….the maker must be called to testify the credibility of the document citing other similar cases.
2:25 Brig. General Olajide Olaleye did not support the position of the petitioner that the second respondent does not have a school certificate.
2:26 For the record, Olajide said available record shows Buhari applied to join the military in 1961 and the application was received and he was recommended fit for the commission.
2:27 “I consider he would pass maths, English..It is a practice that before candidates are shortlisted in the Nigerian Army, it is cross-examined, however, there is no record that this was followed in the 1960s”
2:29 Neither the original copy or certified true copy or statement of result of WAEC is in his personal file. what i have said here is what is contained in his perosnal file, Brig Olaleye had said.
2:30 the Nigerian Army holds the retired senior officer in very high esteem and respect but will not be a party to any controversy to his eligibility to any party. Suffice to say that Buhari rose to the enviable rank before emerging to the Head of State of our dear country in 1983.
2:31 This statement apparently, clearly, unequivocally confirms that the second respondent actually obtained WAEC and passed credit in 1961 in 5 subjects …the statement confirm the authenticity of R19,20,21, 22 and 23 presented by the second respondent.
2:34 While Brig. Olaleye said the original copy or the Certified True Copy is not in his personal file, this does not exclude the inference that the army may have the certificate having regard to the fact he stated, which again, i repeat that the entry made at Form 911A indicated that the former Head of State obtained the WAEC in 1961.
2:35 if indeed the second respondent did not present a certificate to the Army when he was commissioned as an officer, where did the second respondent get the record on Form 999A in its record that was presented. The only reasonable inference is that the second respondent presented his WAEC certificate upon joining the Army from which the army extracted the information.
2:47 The petitioner who alleged Buhari did not have the required conceded in Paragraph 1.10 in the first respondent final address…they cannot, therefore, rely on the position of the first respondent qualification.
2:48 The petition claimed the first respondent was sponsored by the second respondent and the first respondent duly cleared the second respondent.
2:50 It has not be shown that WEAC and the University of Cambridge are interested in this proceeding whether there is variation in names os Buhari in exhibit 19 and 21, whether it is Mohammed with O or Muhammed with U. The petitioner stated that the document cannot be said to belong to the second respondent because no facts were placed to confirm the name.
2: 52 But the first respondent insisted the name could be born by the same person referring to the case of Fayose and Dr. Levi. The variations in names are issued to the same person in respect of which the exhibits were issued.
2:54 from the position of the court, the names with O and U both oral and documentation belongs to the same person. I am of the view that there is no doubt that Exhibit R19 and 21 raltes to the second respondent.
2:55 I have no doubt in my mind again that the petitioners have not proofed or established that the second respondent does not have the qualification to contest under section 131, 137, 138 of the constitution.
2:56 The petitioners have failed to prove or show that Buhari had submitted to the first respondent an affidavit containing false information of fundamental nature in aid of his qualifications for the election as prescribed by section 35 (1) of the Evidence Act 2011 and certain by the decision of the apex court.
3:03 There must be eyewitnesses too. Both forms and witnesses are vital in contesting the illegality and lawfulness of votes and the result of an election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only documents. it is incumbent for him to leave evidence of wrongdoings irregularities ….which affected substantially result of the election.
3:07 The petitioner insisted that by amendment of the Electoral Act, Section 52, voting shall be in accordance and determined by the INEC. INEC is empowered to submit result through the INEC Server.
3:09 It is as a result of the amendment that INEC could as well use the manual process.
3:10 By the power vested in me, I said INEC used a manual process for the conduct of the 2019 election, dealing with accreditation and voting procedures.
3:12 At the close of voting, counting, collection from polling units to ward levels, the presiding officers shall council all the unused papers, count all the votes in the presence of all polling agents, do a recount which will only be done once.
3:17 As can be clearly seen, the collation and distribution as shown on exhibit 28 is manual. From the polling unit under the electoral Act is manual. There is no provision from exhibit B27 or 28, or transmission of election result electronically either by the use smart reader or other means at any level of an election.
3:18 There is no provision in the amended electoral Act that empowers the first respondent (INEC) or any of its officers….the regulations and guidelines which allows transmission of any result electronically to any server.
3:24 The electoral law outlaw the use of electronic voting. It is stipulated to have been prohibited. However, even if there is no electronic voting, there is no provision of the electoral act which provides for the collation and transmission of election result across Nigeria.
3:25 The use of card readers have been considered by the Supreme Court in a number of cases but the supreme court has jettisoned the law on the position of the use of the card reader in an election and interpreted Section 52 (1B) of Act 2010 which provides the temporal prohibition of the e-voting machines in a number of cases, citing Wike and Peterside as instances.
3:37 In paragraph 18 and 19 of the witness statement of oath, he concluded, “bearing a simplified and common understanding of the server or a computer is a device or programme dedicated to managing networks, resources such as storage, communication, security and centralised applications and database management system, and acknowledging the INEC’s guideline which outlines a transparent and integrated electronic process of voters accreditation, vote collation and transmission. Indeed, there existed a robust system of servers which extensive use in the Presidential election is undeniable.
3:47 In effect, the evidence of PW3, 4, 16, 17, 36 and 59 together with the expert report and Exhibit P91 cannot be relied upon that there was indeed on fact, there was INEC Server or Servers as the case may be, wherein results were transmitted electronically from the smart card readers in the 2019 election. The pieces of evidence given by those witnesses lack the value to prove such an allegation.
15:54 That the first respondent officials did not correctly collect votes from polling units in Abia, Anambra, Adamawa, Bayelsa, Akwa Ibom, Ebonyi, Bauchi, Benue, Borno, Cross River, Delta, Edo, Ekiti, FCT, Enugu, Gombe, Imo, Jigawa, Kaduna, Kebbi, Kogi, Nasarawa, Lagos, Niger, Ogun, Osun, Ondo, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara State.
15:56 the petitioner did not call any witnesses in respect of all these sundry allegations made in each of these states to give evidence of wrongdoings and/or crimes allegedly committed in the presidential election in those states.
15:57 Apart from the fact that the allegations must be proved beyond every reasonable doubt because it is criminal in nature, it is also incumbent on the petitioners to call evidence, polling units by polling units in order to establish the accusations, irregularities and gross misconduct, alleged against INEC officials, the second respondents and other persons.
16:35 Those who testified as aid collation agents in this petition for Niger PW7, PW8 for Katsina, PW23 for Borno, and PW61 for Kogi State. Though some of the ward collation agents said they visited some of the polling units under them, where there were criminal complaints of violence and anomalies but none of them said he covered all the polling units and none of them stayed in any particular polling units throughout the duration of the election. Apart from two or three witnesses who said did not vote, all the said witnesses voted and were duly accredited based on their accounts.
16:50 Like I mentioned, there is no admissible evidence from any of the witnesses that could link all or any of the individuals mentioned therein with the allegation of corrupt practices and non-compliance with the electoral act.
16:51 The allegations against the said individuals were not established. Whatever evidence led, is tantamount to hearsay evidence as none of the witnesses actually witnessed any of the facts pleaded in the paragraphs of the petition.
16:52 What is more, none of the personalities accused including the security agencies are parties to the proceeding and this court will be acting in violation of the rights, as we have already decided in the ruling I read this morning in contravention of Section 36 of the constitution as amended to adjudge them guilty of all the allegations against them.
16:53 Enough has been circulated of serious that serious and criminal acts of other offences and other criminal acts, irregularities, anomalies, riggings, etc have laid out on the onset on the treatment of these issues were made against the respondents and those perceived to be their agents on duty on the day of election.
16:54 In the spectrum, like I mentioned before of criminal law, allegations against agents cannot be held against their matter without any evidence directly linking the matters with the allegations against their agents.
16:55 I’m not unmindful of the strong submission of my learned senior counsel for the petitioners who stated that the evidence of PW62 actually proved and established grounds 2 and 3 of the petition, that their evidence was not challenged during cross-examination.
16:56 In the petition final address, it replied to the first respondent in paragraph 5.03, 5.17 and 5.18 thereof, the learned senior colleague said thus, and I quote, PW61 is a collation agent of the petitioner in Kogi State. He is one Captain Joe Agada (rtd).
16:58 Under cross-examination, he said he voted in a polling unit at Olaiboro Unit 18, that disturbances started before the election. He also visited four polling units before the election and there are 2300 polling units in the state. He visited only four polling units where he said violence was perpetrated. This was under cross-examination of the learned senior colleague.
16: 59 When he was further cross-examined, he further said among other things that he was duly accredited before he voted and the card reader was used for his accreditation. He did not have the Form 48, to evidence the recording of any violence. He did not sign the form and he refused to collect the result after the election.
17:00 He did not have the voters register in respect of the places complained of about the complaint in respect of the state he represented the petitioner. They have dealt with the evidence of PW60 whose evidence is also hearsay in respect of the copies of Form ECA CA, ECA B and ECA C deployed in the 11 States in which he was engaged to examine.
17:03 The evidence of PW62, the star witness once again covered virtually all the facts pleaded in the petition. Under our cross-examination by our learned counsels for the respondent, he left no one in doubt that he had no knowledge of all that happened across the various polling units across the country.
17:05 Whereas, the petitioners based their allegations in Paragraph 107 to 387 of the petition. I have mentioned it, he stated that he was at the situation room of the PDP on election day and the information contained in his witness statement about wrongdoing at the polling unit, ward level, local government, the state level and across Nigeria were gathered from third parties who were their agents in the said level of the election process.
17:07 It was therefore not an eyewitness but any incident except the one that happened at the national collation centre, where he was the national collation agent for the petitioner.
17:08 He told the court that the collation was done all over the country including the national level manually. PW62 evidence cannot, in the list, at all command any value on the quantum of the pieces of evidence given by him, and do not establish the horrendous allegation on the commission of crime and criminal allegations contained in the paragraph of the petition.
17:10 He cannot be in the situation room in his party’s office and be at the polling unit in all the polling stations or voting points in Nigeria.
17:11 The petitioner underground two of the petition dealing with non-compliance with the provision of the electoral Act as amended fielded in the paragraph of the petition which I have mentioned that there was over-voting in so many polling units.
17: 13 For instance, in Paragraph 1153, the petitioners avert thus and I quote: “Over voting- The petitioners shall contend that out 1,941 polling units in the affected 26 local government areas in the states, the first respondent in respect of the 490 polling units, the result showed the number votes returned exceed the number of accredited voters.
17:15 The petitioners shall rely on this…they also pleaded that many voters on the voters’ register in the 11 focal states were disenfranchised of various allegations of violence, manipulations and compromise.
17:16 The law is not certain that the only way to prove over-voting, inflation or deflation of votes at the polling units, manipulation of voters’ register by INEC officials as pleaded by the petitioners can only be proved by a petitioner by tendering the voters’ register and the Form EC8A and other relevant forms used in the election to enable the petitioners show that if the figures of scores representing over-voting is removed from the declared result, the petitioner would win the election.
17: 17 The petitioners, in this case, have not done so, they tendered no voters register. The only form they tendered, Form EC8A, ABs, EC8Cs, EC8Es were not utilised or demonstrated before this court by any of the 62 witnesses called by them.
17:18 There is no doubt that this is detrimental to the petitioners’ case.
17:19 The petitioners also made an allusion to the fact that the first and second respondent rested their defence on the evidence submitted that they have abandoned their pleadings and admitted the petitioners’ case…
17: 20 No facts and evidence on record had shown that the petitioners had discharged the initial body of proves cast of them by law under Section 131, 136 of the Evidence Act 2011 and the Electoral Act, Regulations and Guidelines made ther under in respect of any of the grounds upon which the petition is premised.
17:21 The court cannot help the petitioners to do their job.
17:22 The respondents are therefore right in their submission that the petitioner dumped all the Forms EC8C series and other documents on this court and none of them were utilised by any of the witnesses who testified on behalf of the petitioners in order to demonstrate the specific areas that particularly relate to issues 2,4 and 5 in paragraph 107 to 387.
17: 23 All the exhibits like I said, in the earlier portion of this judgement which were not demonstrated or linked to specific areas that relate to issues 4 and 5 of this petition remained dormant and of no probative values to the petitioners.
17: 25 In the final result, for reasons set out in this judgement, I have come to the conclusion which is inevitable and unavoidable that the petitioners on the basis of their evidence adduced before this court has not proved any of the grounds contained in Paragraph 15 of the petition by law.
17: 26 Failure by the petitioners to satisfactorily discharge the burden or onus of proves placed on them by law, this petition is liable to be and is hereby dismissed in its entirety.
17:27 Before I end this judgement let me also place it on record and i will like to commend the learned senior parties for their industry and the brilliant final addresses on the issues canvased in this petition which were very helpful in the determination of this court.
18:183 the court proceeding ended at 18:13