AS THE NATION AWAITS THE JUDGES

Barrister Auta Nyada.

By Barrister Auta Nyada

By the time this piece is published, the parties to the presidential election petition which the presidential candidate of the People’s Democratic Party (PDP) in the last presidential election, Alhaji Atiku Abubakar, and the PDP filed at the Presidential Election Petitions Court (PEPC) challenging the declaration and return of the presidential candidate of the All Progressives Congress (APC), President Muhammadu Buhari, as the duly elected candidate for the office of the President of the Federal Republic of Nigeria would have adopted and argued their Final Written Addresses in support of their respective cases.

It is important we remind ourselves of the events that led to the case of the Petitioners at the PEPC and the responses of the three Respondents thereto, viz, the Independent National Electoral Commission (INEC), Muhammadu Buhari and the All Progressive Congress (APC).

On 23rd February, 2019 after a last minute postponement of the general elections by one week, INEC conducted the presidential elections. The presidential election, as well as the contemporaneous national assembly elections and the subsequent gubernatorial and state assemblies elections, were fraught with massive electoral irregularities, violence, intimidation of voters by the military and state-sponsored thugs and collusion by all state institutions including INEC, the electoral umpire. The malfeasance was on such a grand scale that Nigerians wondered if the nation would, indeed, recover from the visceral violation of its electoral virtue. When PDP and its presidential candidate filed their petition at the PEPC, Nigerians were presented with a vista of hope that the wound inflicted on them through the evisceration of their mandate would be healed.
Between the 4th of July, 2019 and the 1st of August, 2019, the nation was treated to riveting courtroom drama which brought to the open disturbing information, that, save for the petition, would have been lost in the dark recesses of hugger-mugger officialdom. The proceedings at the PEPC established, for the records and for posterity, the electoral turpitude that befell the nation on 23rd of February, 2019. A synopsis of the case of the Petitioners and the defence of the three Respondents will put things in perspective.
According to the Petitioners, President Buhari was, at the time of the election, not qualified to contest the election. They also contended that he gave false information regarding his qualification in the affidavit he submitted to INEC and that the falsehood contained in the said affidavit was of a fundamental nature. Other grounds for the petition were that President Buhari was not duly elected by majority of lawful votes cast at the election and that the election was invalid by reason of corrupt practices and non-compliance with the Electoral Act, 2010 as amended and the Electoral Guidelines 2019 and Manuals for the conduct for the elections.

On the other hand, the 1st Respondent, that is, INEC, in its defence to the petition, debunked the Petitioner’s allegations and claimed to have conducted an election, which complied with the provisions of the extant electoral law. It also struggled to convince the PEPC that the 2nd Respondent was qualified to contest the election. Strangely, INEC did not lead evidence in support of its pleading at the PEPC. It neither led evidence to defend itself of the allegations of electoral irregularities and its collusion in the electoral heist visited on Nigerians nor did it prove its claim that the President possessed the requisite qualifications. Instead, it laboured tortuously around obsolete laws and overruled precedents in its Final Written Address to explain how President Buhari was qualified to contest, blissfully oblivious of the time-honoured legal principle that the address of Counsel, no matter how brilliant, cannot take the place of evidence.
The position of the law is clear on the fate that awaits a pleading in support of which no evidence is led: such pleading is deemed abandoned and the facts and denials therein go to no moment. A Defendant who fails, refuses or neglects to defend the suit against them is taken to have accepted as true the case made out against him by the Claimant.

The 2nd Respondent, President Buhari, on the other hand, called seven witnesses who, rather than build his case, did incalculable damage to his case. Two vital witnesses for the 2nd Respondent the force of whose evidence could have blown the Petitioners’ case to, perhaps, smithereens, if the President’s qualifications were the only grounds for the petition, considering that their evidence touched on the President’s qualification, rather cemented the Petitioner’s case. The first, Major-General Paul Chabri Tarfa (Rtd), a course-mate of the President was to testify that their set left their certificates with the Military Board. A truthful witness who chose not to tread the path of his principal, Major-General Tarfa told the Court without mincing words that, “We did not submit our certificates to the Nigerian Army as there was no such thing.” This answer resonated round the country and exploded the case of the 2nd Respondent in his face.

The second witness, Mr. Osirideinde Henry Sunday Adewunmi could neither explain how the President had two different results from the same examination nor could he explain how he, a member of staff of West African Examination Council became involved in the saga of the University of Cambridge Examination results sheet; nor, even yet, why the Court should agree with him that ‘Mohamed’ was the same as ‘Muhammadu’. The other five witnesses treated the Court to vignettes of inanities, with one of them, Abba Kyari, the Chief of Staff to the President, testifying to how he received the President’s result from the University of Cambridge on his behalf: an act which educated people know was improbable; and another tendering a class photograph in lieu of certificate.
Following the curious outing of the seven witnesses, the lead Counsel to the 2nd Respondent advisedly cut his losses and abruptly closed his case. The 3rd Respondent, the All Progressives Congress (APC), like the 1st Respondent, opened and closed its case without calling any witness to lead evidence in support of its pleading. Like the 1st Respondent, the same fate awaits it.

One particularly striking feature of the proceedings at the PEPC is the ease with which the public followed same. The information age is like the Christian era of grace, which tore the veil of the Mosaic law thereby making the Holy of Holies accessible to the penitent. With live commentaries flooding the Internet, it was difficult to sequester the evidence of the parties in the cocoon of judicial secrecy. With the extraordinary cache of information available in the cyberspace, even non-lawyers today possess a rudimentary understanding of legal principles and, at least, an average appreciation of the legal implications of certain actions. Legal proceedings are no longer the esoteric mystery it used to be.
The legal implication of the weight in the hand of the Lady Justitia, for instance, is common knowledge. Preternatural intelligence is, therefore, not required to extrapolate the legal consequences of the failure of the 1st and 3rd Respondents to lead evidence in support of their pleadings. When the gamut of evidence of the 2nd Respondent’s witnesses is placed in juxtaposition with the totality of the evidence of the Petitioner’s witnesses, the direction the scale of justice will tip will be interesting. The parties to the petition know this. Members of the public know this. With this knowledge and public interest therefore, the Judges who constitute the PEPC are being awaited to shape the destiny of Africa’s most populous nation. Their actions are open to the public scrutiny.

Members of the Respondents’ legal teams understand this situation. As in the game of bridge, they have moved to preempt the Court's verdict by flooding the cyberspace with misconceived sophistry on how the success of a legal proceeding is not dependent on the number of witnesses called but on the quality of the evidence adduced. That the PEPC is being baited to contemplate the poisoned chalice this specious argument represents in the light of the evidence before it should elicit fretful shudders from all reasonable men and lovers of our constitutional democracy.

The image of the judiciary has been so battered that Nigerians are beginning to lose confidence in its capacity to deliver justice. This case is an opportunity for redemption. There are concerns that the PEPC may weigh heavily on strict constructionist approach to hold that the Petitioners have not proven their case to be entitled to judgment. These concerns stem from the unwieldy and almost farcical definition of ‘school certificate’ in Section 318 of the Constitution of the Federal Republic of Nigeria 1999 as amended and the established unwillingness of the judiciary to nullify elections on the grounds of electoral malpractices and non-compliance with the Electoral Act as they just did in Kenya.
It would seem, then, that what amounts to substantial non-compliance with the provisions of the Electoral Act has become a matter which is subject to judicial discretion and, thus, subjective determination even when the facts adduced are cogent and compelling. Nigerians hope that this will not be the case at the PEPC.

That so much is at stakes here is not in doubt. On one hand is an incumbent who, in the run-up to the elections, demonstrated a toxic unwillingness to accept electoral defeat, which culminated in the defenestration of the then Chief Justice of Nigeria, Honourable Justice WSN Onnoghen, in the first quarter of 2019 who would still have been the CJN at this time.

On the other hand is an opposition candidate who cruised into the elections on the wings of his comprehension of political and socio-economic realities, his massive goodwill and Nigeria’s disavowal of the incumbent and prepared for the election with military precision as a thoughtful general, leaving nothing to chance. Public apprehension over the outcome of the petition therefore becomes understandable.

Would the PEPC be courageous enough, in the light of the evidence before it, to relieve the incumbent of the office he occupies at this moment? The nation awaits its decision with bated breath. In one of his engagements with the media, Dr. Livy Uzoukwu SAN, the lead Counsel for the Petitioners, assured Nigerians that, “this case will define, I hope so, electoral jurisprudence in Nigeria one way or the other.” In the words of the Preacher in the Biblical book of Ecclesiastes, that is the conclusion of the whole matter.

Barrister Auta Nyada
Legal Practitioner who wrote from Suleja, Niger State.