Lagos — By the unprecedented live telecast of the delivery by the Presidential Election Petition Tribunal, of the judgment in the consolidated petitions of General Muhammadu Buhari and Alhaji Atiku Abubakar, respectively of the ANPP and AC, against the election of President Umar Musa Yar' Adua, on Tuesday 26th of February 2008, and the extensive reportage of the judgment in the print media, the general public has been able to grasp the details of the judgment.

However, from a case review angle, it may be too early to do a thorough "finding by finding, and holding by holding" analysis of the judgment. This is because the judgment (both the lead and concurring) is not yet available in the law reports for a careful and punctilious digestion. All the same, given what is known of the judgment, from the broadcast and print media report, it is safe to do its concise review, pending a more elaborate review when the judgment is published in the law reports.

Overall, it is our considered view that the judgment of the Court of Appeal, acting as the Tribunal, as erudite as it certainly is, and as obvious as the industry that went into its preparation is, is an unfortunate reversal of the modest progress that has been recorded in recent time in election petition cases under Nigerian law.

The judgment is dogmatically legalistic. It merely followed in the footsteps of the Awolowo v Shagari, Falae v Obasanjo and Buhari v Obasanjo precedents, without heeding the age long adjudicatory admonition that in the application of judicial precedents and principles of law, facts of cases, which are distinguishable, should not be treated as one and the same. In Buhari v Obasanjo( 2005), 13 NWLR. Pt. 941, 1 at Pp 308-309, paras G-C; 311,and paras. D-E, the Supreme Court had held that "an order of cancellation or nullification of the Presidential election should not be made by a tribunal or court without clear, positive credible and overwhelming evidence led to the effect that the entire election was totally flawed nationwide; and that the conduct of the election was in breach of major and very fundamental provisions of the Electoral Act. In the instant case, although the appellants sought the setting aside of the entire election on the grounds inter alia of violence, intimidation and breach as of the Electoral Act, they failed to show who was responsible for the violence and intimidation, or how the alleged breach as of the Electoral Act affected the entire outcome of the election, including the result accredited to the 1st Appellant"

The Tribunal, in our view, did no more than to hold fast to that decision, even when the circumstances were different, and the crime of fraud in the contested 2007 election was more grievously blatant. The judgment unsympathetically denies the painful reality of our collective experience during the conduct of the April 14, 2007 Presidential Election. Our suspicion is that the Tribunal took a decision, in line with existing precedents, not to void the result of the Presidential Election; and having taken that decision, it made sure that the several pieces of evidence of corrupt practices in the election and that of non-compliance with the provisions of the Electoral Act, 2006, that were led at the trial of the petitions, were roundly rejected or dismissed as insufficient to upturn the result of the election. If we were right in our suspicion, then the Tribunal, with profound respect to their Lordships, did not do right by the Nigerian people.

If, in the thinking of the Tribunal, it is, contextually, unwise, unrealistic and inconvenient to void the result of the election, the Tribunal should have said so in plain language, after accepting, as proved, credible and unimpeachable evidence that were led at the trial to show that the election was marred by fraud and irregularities.

The Tribunal could have rationalized a refusal to void the result on the grounds of the overriding necessity to exercise judicial powers judiciously, of the bounding duty of the judiciary to stabilize the polity, and of the crucial role of the judiciary in the preservation of law and order, which a nullification of the result of the election might undermine.

The Tribunal could have reasoned that upturning the result of the election might jeopardize national security and endanger democratic governance itself. The Tribunal could even have added that it had no precedent to follow, either in Nigeria or in the rest of the Commonwealth, in voiding the all important result of the presidential election; and that it was not prepared to create one. If the Tribunal had taken this line of approach, it would have been subjected to harsh criticism for displaying a lack of courage, when it ought to dispense justice without fear or favour, affection or ill will.

However, in our humble opinion, it is better for a judiciary to be accused of exhibiting rational and circumspective timidity in dealing with a hyper-sensitive matter of a presidential election annulment in a fledgling democracy, such as ours, than for it to be accused of hypocrisy.

There is a consensus of local and international opinions that the April 2007 Elections in Nigeria were the worst conducted elections since Nigeria returned to civil rule in 1999. Local and foreign election monitors testified to this fact in their scathing reports. The conduct of the elections was said not to be in consonance with regional standards, let alone international standards. The media reflected this fact.

This fact was also reflected in the unprecedented high number of election petitions that were filed before the various election petition tribunals, a fact which was publicly acknowledged by the President of the Court of Appeal, Hon. Justice Umaru Faruk Abdullahi.

President Yar Adua himself admitted in his inaugural speech that the elections were flawed; and, in further admission, hurriedly set up an electoral reform panel to help rework the electoral law, ostensibly to curry national acceptance and earn the forgiveness of a bitter and distraught electorate. The various Governorship, House of Assembly and National Assembly Election Petitions Tribunals have also been giving rulings and judgments that affirm, indubitably, that the elections, in general, were a travesty of electoral process.

It was only INEC that was, in provocative obstinacy, saying that the elections were the best held in the annals of elections in Nigeria. Against this backdrop, the reasons for the Judgment of the Tribunal appear superficial. These reasons were that the petitioners failed to prove, beyond reasonable doubt, corruption in the conduct of the election, non-compliance with the provisions of the Electoral Act, fraud and commission of other electoral crimes during the conduct of the election; and that the petitioners did not show how they were prejudiced by these electoral incidents, that they failed to prove that these incidents were the acts of the President and Vice-President and the PDP, and did not demonstrate how these incidents, even if accepted as proved, would substantially have affected the outcome of the election. A court is bound to confine its decision within the limits of the scope of inquiry before it.

In other words, a court has no competence to determine an issue beyond the scope of what was put in issue before it ( Buhari v. Obasanjo 2005, 13 NWLR. Pt 941,1 at 256 Paras. F-H). While it is true that in the determination of a dispute that is placed before it, a court of law must confine itself to the four corners of the facts of the case and applicable law in relation thereto, a court of law is not expected to behave like an ostrich, burying its head in the sand of denial of notorious facts, which are of common knowledge and which the court could take judicial notice of, even if no evidentiary step is taken in the proceedings to prove those facts.

The law does not require that to be proved which is apparent to the court- Lex non reqirit verificari quod apparet In the Judgment, the Tribunal relied on a long line of cases, which state the position of the law that when allegations of commission of criminal offences are made in a civil action (which an election petition is), the allegations must be proved beyond reasonable doubt, to hold that the allegations of fraud, violence, ballot stuffing and snatching and other multiple electoral offences that the petitioners made were not proved beyond reasonable doubt. In other words, the Tribunal held that the petitioners failed to discharge their burden of proof.

Unfortunately, the Tribunal did not demonstrate how this burden could have been discharged in the circumstances of the petitions. At the outset of the election petition determination exercise, the President of the Court of Appeal issued a practice direction and guidelines to regulate the proceedings of the Tribunals. Under the practice direction and guidelines, evidence (oral testimony or statement reduced into writing and sworn on oath, and lists and copies of documentary evidence) to be tendered and relied upon at the hearing of petitions must be "front-loaded", that is filed and exchanged by the parties, prior to the hearing of the petitions. The advent of the practice directions and guidelines was not without controversy.

But it was not in doubt that it was a sincere innovation that was fashioned out to fast-track the determination of election petitions. In the instant Presidential Election Petition, evidence was frontloaded by the petitioners, some, after the tedious inspection and delayed production of election materials like voter registers, ballot papers, and collation and return forms. Of course, INEC frustrated these inspection and production. At the hearing of the petitions, documents were tendered and received in evidence which show very clearly that there were serious discrepancies between the electronic version of the result and the manual version of the result in the presidential election. Further, documents were tendered and received in evidence to show that the numbers of votes scored by the candidates, as variously tabulated and collated were contradictory.

These documentary evidence was not impeached by the Respondents. By the rule of evidence, once a document is tendered and admitted in evidence, oral evidence to explain the contents of the document is precluded. It is said that the document speaks for itself. Thus, the Tribunal could not have expected the petitioners to lead oral evidence in expatiation or elaboration of the documentary evidence that was tendered. As for oral testimony, it is public knowledge that hard as the petitioners tried to persuade the Tribunal to allow oral evidence to be called to substantiate their allegations of facts, the Tribunal did not allow oral evidence to be called, perhaps for good reason; yet the Tribunal turned round to hold that the failure of the petitioners to call oral testimony in proof of some of the allegations was fatal to their cases. The question that arises is, how else could the petitioners have discharged their burden of proof?

If the Tribunal rejected the documentary evidence tendered as "inconsequential" "of no moment" "unsubstantial", and "miniature", and disallowed oral evidence from being called, by what mode or procedure would the Tribunal have expected the petitioners to prove their case beyond reasonable doubt, and what quantum of evidence would have been sufficient, in the opinion of the Tribunal, for the discharge of the burden of proof? We now come to the issue of standard of proof in civil cases, wherein criminal allegations are made. The standard of proof in an election petition is preponderance of evidence. Although election petitions have peculiar characteristics of their own, they are still a specie of civil cases. Consequently, they are decided on the preponderance of evidence. Buhari v. Obasanjo( supra), Pp.282-283,paras.H-A; 286,Para.B.However, the standard of proof regarding pleadings in an election petition wherein criminal allegations are made, is proof beyond reasonable doubt. In spite of the heavy weight of the burden of proof in establishing alleged criminal acts in election petitions, we are persuaded that this standard of proof ought to be maintained.

Having said this, the question remains, what is proof beyond reasonable doubt in the circumstances of the instant petitions? The petitioners emanated from an election in which the ruling party, the security agencies and INEC were manipulating the electoral process in favour of the persons who were declared as winners in the election, to the prejudice of the petitioners. That manipulation combined with a shoddy handling of the election to make the election totally flawed. Many registered voters, including Ken Nnamani, the former Senate President, could not vote in some of the elections.

These were glaring, notorious, un-contradicted and un-contradictable facts. Yet, the Tribunal held that the allegations were not proved beyond reasonable doubt because no registered voter, disenfranchised in the election, was called as a witness to say so; as if should twenty thousand of such voters had been called to give oral testimony, the Tribunal would not have sat for almost four years to determine the petition, and as if, going by the position of the law, it would not have held still that the number of those twenty thousand voters that were disenfranchised was insignificant compared to the number that voted, and that the disenfranchisement was insufficient to have altered the outcome of the election. In Buhari v. Obasanjo 2005, 13 NWLR. Pt 941, 1 at 299 Paras. F-H, Pats- Acholonu,JSC, of blessed memory, underscored the daunting task facing a petitioner challenging election to the office of president or governor in Nigeria.

"The very big obstacle", he said, "that anyone who seeks to have the election of the President or Governor upturned faces is the very large number of witnesses he must call due to the size of the respective constituency. In a country like our own, he may have to call about 250,000-300,000 witnesses. By the time the court would have heard from all of them, with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory bereft of substance."

The point we are making is that the Tribunal ought not to have latched on to the absence of oral testimony, in concluding that the allegation of disenfranchisement, violence, fraud, et cetera, were unproven. The Tribunal ought to have realized that, as the law stands, it is impracticable to call such oral testimony that would have convinced it otherwise. And the law does not compel to impossible ends- Lex non cogit ad impossibilia.

On acts of violence, the Tribunal held that the Petitioners did not prove that the thugs who were snatching ballot bags belonged to and benefitted the PDP and their candidates, by their nefarious activities. This position is also in tandem with the decision of the Supreme Court in Buhari v. Obasanjo (supra),where it was held at Pp. 199- 200, paras.H-B; 264-265, paras. H-B that, "irregularities at the conduct of an election, or acts of violence during election which are neither the acts of a candidate nor linked to a candidate cannot affect the candidate"s election" But if we may ask, how could these acts of violence have been proven? We wonder if it is by issuing summons to the faceless thugs and making them compellable witnesses who would indict themselves and confess to their crimes on the witness stand!

Proof beyond reasonable doubt has been defined as "proof that precludes every reasonable hypothesis except that which it tends to support and verily it is a proof that is consistent with the guilt of the accused person or against whom the allegation has been made; (and that) therefore, it can be said that for evidence to attain that height that could bring about a conviction, it must exclude beyond reasonable doubt, every other hypothesis or conjecture or proposition or presumption except that of the guilt of the accused.

If the evidence is wobbly, thematic or vague or is compatible with both innocence or guilt, then it cannot be described as being beyond all reasonable doubt" Pats-Acholonu, JSC, in Buhari v. Obasanjo( SC) at P 295 Paras. B-E. However proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. The test of reasonableness is that of the ordinary man of an average intelligence on the street. Under our criminal law, culpability and guilt can be established by oral or documentary evidence; direct eye witness account, confession or circumstantial evidence. An accused person may be convicted of murder and sentenced to death based on circumstantial evidence alone, if well corroborated and credible. In such a situation, the circumstantial evidence is said to be the best evidence. And the Prosecution would have discharged the burden of proof beyond reasonable doubt. If this is the position of the law, why did the Tribunal roundly reject, attach no weight to, or dismiss as insufficient the avalanche of evidence tendered before the Tribunal, thereby creating, in our respectful view, a higher, and we dare say an unattainable, standard of proof in the establishment of alleged criminal acts in election petition cases?

The Tribunal's judgment which dismissed the petitions for lack, insufficiency or insubstantiality of evidence to nullify the result of the election held that the petitioners and their lawyers failed in their duty to prove the facts which they alleged. An impression was thus created that the litigants and their lawyers did not understand the task they had to perform at the trial of the petitions. Not many will share this impression. The main petitioners and their lawyers are seasoned litigants and attorneys in the litigation arena of election petition. In the election petition that arose from the conduct of the 2003 presidential election, one of the petitioners, General Buhari, and his lead lawyer in the instant petition succeeded in obtaining a minority dissenting opinion, per Nsofor, JCA, nullifying the 2003 presidential election and a unanimous decision, in the Court of Appeal, nullifying the result of the election in Ogun State, the home State of the then President. We refer to the Buhari v. Obasanjo(2005), 2 NWLR, Pt.910, 241.

By way of digression, although that unanimous nullification was later set aside by the Supreme Court, when the petition went on appeal and a cross-appeal, it was a symbolic disapproval, by the Court of Appeal, of the conduct and outcome of that election. Incidentally the Tribunal, in the instant petitions, relied heavily on the Buhari v. Obasanjo Cases to reach its conclusions. Our belief is that the lawyers of the petitioners know what proof beyond reasonable doubt is, and how to discharge the burden of this proof in election petition cases. The popularly held view in and outside the country is that the 2007 elections were worse than that of 2003.

Their Lordships who sat on the petitions cannot deny sharing this popular view. We can, therefore presume that if Buhari and his lawyers succeeded at the Court of Appeal in December 2004 to partially nullify the result of the presidential election, but failed woefully in 2008 to meet the 2004 record, there must be a reason for this failure. It is either the 2007 presidential election was freer and fairer than the 2003 presidential election, or that whereas evidence was easier to gather and tender in the 2003 petition, it was more difficult to assemble in the 2007 petition, or that the Buhari"s legal team had become professionally rustic and does not know, any longer, how to handle election petition and prove criminal allegations therein beyond reasonable doubt , or that the legal team that defended the petition is better than the 2003 team and that its adroitness made the difference. It is also very disturbing that their Lordships did not use the opportunity provided by the petitions to deprecate the shameful conduct of INEC in the election, a conduct that has visited economic adversity on Nigeria by the re- run of many of the elections at huge costs.

Their Lordships should have "gone to town" to condemn and thoroughly excoriate INEC and its mischievous head for bringing Nigeria and its democratic process into a state of international odium, scorn and disrepute. Such condemnation could have comforted the Nigerian people. Nsofor, JCA, offered such words of comfort in Buhari v. Obasanjo (2005), 2 NWLR, Pt.910, 241,where, at P. 601, His Lordship prayed that "may Nigeria and Nigerians never ever see, again, a "black Saturday" such as the 19th April 2003! Di Prohibieant !". Pats Acholonu, JSC, of blessed memory, also offered such words in Buhari v. Obasanjo (SC) ( 2005), 13 NWLR. Pt 941, 1 at P. 300. paras. D-H where His Lordship said that "some of the evidence elicited are so disquieting that one would wonder whether we have learnt or in fact can learn a lesson. Such inordinate and impetuous acts are despicable. such mania to traduce all known civilized practices by the supporters of the parties is reprehensible and condemnable..............The country would not like to witness another Gorgon in an election" Such words may help heal the injured feelings and bruised integrity of the Nigerian people, who, upon the delivery of the Tribunal's Judgment, are being insulted further by unbridled celebration of victory and annunciation of vindication by INEC and its accomplice, the PDP, and who, in the future, may be frustrated to the extent of abandoning the judicial forum for the resolution of any presidential election dispute.