Funso Muraina, Amaka Akaniru And Abimbola Ajani
24 October 2008
Abuja — Expectations that the Supreme Court would set a definite date for judgment in respect of the appeals in petitions challenging the election of President Umaru Musa Yar'Adua were dashed yesterday in Abuja.
Rather than set a specific date, the apex court reserved judgment indefinitely in the consolidated appeals filed by the presidential candidate of the All Nigeria Peoples Party (ANPP) in the 2007 presidential election, Major-General Muhammadu Buhari (rtd), and his Action Congress (AC) counterpart, Alhaji Atiku Abubakar.
Both are challenging the ruling of the Court of Appeal sitting as Presidential Election Tribunal, which had upheld the election of President Yar'Adua.
At yesterday's sitting that lasted seven hours, from 9 am till around 5 pm, the role allegedly played by the Independent National Electoral Commission (INEC) in the election was also x-rayed in the submissions by the various lawyers in the petition.
Each of the lawyers argued why the election should be or should not be annulled by the court, as they traded accusations over the conduct of the election.
But the court left no one in doubt that it was out for serious business.
In the end, the apex court adjourned sine die to give judgment in respect of the consolidated appeals.
It was Buhari, through his lawyer, Chief Mike Ahamba (SAN), that first took the floor and having adopted his brief and reply, expatiated on what he called the failure of the lower court to evaluate all the evidence filed before the court.
Ahamba said it was an error on the part of the lower court to have dismissed Buhari's petition for lack of evidence and to have at the same time faulted the manner in which the election materials were delivered to all the states of the federation.
According to him, hundreds of documents were filed before the court showing that the procedure for the collation of the results was dubious and fraudulent, stating that the findings of the lower court that evidence was only supplied in respect of four states should be jettisoned by the Supreme Court.
He alleged that several documents gathered from local governments across the country were ignored by the lower court, stressing that the Buhari team stopped calling oral evidence because the court advised that depositions should be used by all parties.
Ahamba claimed that results were fixed in about 28 states out of 36 states of the federation, alleging that INEC had prepared results before the elections.
"I urged this court not to go the way of the lower court by looking at all the documents and the court will discover that figures were arbitrarily assigned by the respondent, which is saddled with the conduct of the election."
But when Justice Niki Tobi said: "We should only look at it", Ahamba replied: "Please I urged the court to look and act on it.
"My teacher in secondary school said 'boys learn to know the facts and work by the facts we know.' My teacher's statement has universal application," he said.
Mr. Kanu Agabi (SAN), who represented INEC, said the election could not be annulled on the ground that the election was not conducted in strict compliance with the law.
He said none of the grounds on which the appeal was filed could avail the appellant, as he failed to prove any of them.
He said the court of appeal was right in following the Practice Direction and that the only reason the appellant was against the direction was because he did not comply with it.
According to him, the court of appeal expunged the depositions in 18 states because they were only in respect of alleged election malpractices in four states, adding that only one deposition was submitted in respect of Plateau State, 12 from 1mo State and the one in Abuja was only in relation to the collation of results.
There was nothing in the pleading of the appellant that would warrant the annulment of the election and that none-serialisation of the ballot should be considered by the court as a mere irregularity.
At this point, Justice Tobi interjected, saying: "What about the law that documents speak for themselves" and Agabi admitted that position of the law but insisted that the ballot that was valid in any state should be valid in other states.
He urged the court to dismiss the appeal because the appeal was weak and not worth spending an hour on, stating that the court should not dwell on irrelevancies.
The Peoples Democratic Party (PDP) only adopted its brief.
President Yar 'Adua's counsel, Chief Wole Olanipekun (SAN), said the point hammered upon by the appellant's counsel, Ahamba, on the non-compliance with the Electoral Act could not avail him.
He said the appellant challenged the results of the election only in Katsina, Imo, Rivers and Plateau States and that since most of the allegations bordered on criminal matters, which he had abandoned, he had no grounds of appeal.
Olanipekun insisted that the offences of ballot snatching, ballot stuffing and other malpractices as well as having failed to call any oral evidence and making corruption a ground of appeal could not be of advantage to the appellant.
He said all the documents Ahamba referred to bore no relevance to the petition as the appellant did not follow the Practice Direction.
Olanipekun asked the court to dismiss the appeal for lacking in merit.
The court presided over by the Chief Justice of Nigeria (CJN), Justice Idris Legho Kutigi, however, ruled that it was reserving judgment in the appeal.
It immediately moved to the appeal of the AC candidate with Professor Alfred Kasumu (SAN) leading the team of lawyers, which included Emeka Ngige (SAN), for Atiku.
They began their arguments with a formal adoption of documents filed before the court.
The issue of exclusion was first addressed by Kasumu who said INEC had admitted that impediments were placed in front of the appellant.
He said events that took place before and after the April 16, 2007 all excluded the petitioner and that nothing made him a candidate afterwards.
According to him, there was no official communication to the petitioner nor to his party that he was been made a candidate, saying that that action was wrong.
He said the ballot papers, which were printed at the instance of INEC, excluded the picture and name of Atiku.
He argued that there was a strict instruction by INEC to the printer not to include the logo, the picture of the AC candidate and that this was admitted by INEC, adding that the lower tribunal failed to say anything on how it affected the outcome of the election.
"Alhaji Abubakar Atiku was only hurried into the election by INEC after he had been illegally excluded," Kasumu said, lamenting that there was no level playing field as provided for in the electoral law.
He urged the court to hold that there was a wrong interpretation of Section 145 of the Electoral Act.
He said samples of the defective ballots were exhibited and that the impression should not be given that the petitioner did not supply exhibits.
He harped on the evidence that ballots were printed in South Africa "and we told the respondent that in the electoral law, it was clearly stated that ballots must be serialised.
"Your Lordships should find how ballots were distributed, to whom they were given and in what quantity. My lords, these are some of the issues we put before the lower court. We said that the credibility of the election cannot be tested without the serialisation of the ballot. And that lent credence to the issue of dumping of ballot papers and allocation of votes to candidates.
"My summary is that going by the conduct of the election on the basis of the ballots in South Africa, the election cannot stand. My Lords, there was no election because there was no ballot papers properly called and recognised by law.
"We also complained about the collation of results done electronically and which cannot be justified in any way. Our law as it is today does not approve of electronic collation relied upon by INEC to commit all atrocities against the petitioner.
"I urge the court to uphold the appeal and set aside the judgment of the lower court," Kasumu said.
In his submission, Olanipekun, counsel to Yar'Adua, said the complaint of the petitioner was not that the correct logo of the party was not inserted.
His submission on the exclusion alleged by the petitioner was that, that could only be determined on the basis of Section 145 (1) of the Electoral Act.
He argued that there was no exclusion because the party under which the petitioner contested wrote a letter in which it mentioned five persons led by Chief Tom Ikimi as its agents.
He said estoppel had caught up with the petitioner having taken part in the election.
He also stated that the petitioner was in error not to have returned to court to ask that Professor Maurice Iwu should be compelled to answer those questions he evaded in his reply.
He urged the court to dismiss the appeal for lacking in merit because the petitioner's agents signed the election return sheets.
Mr. Joe-kyari Gadzama (SAN), who represented PDP, said there was no credibility in the evidence supplied to the lower court by the petitioner and urged the court to dismiss the appeal, bearing in mind that there could never be perfect election anywhere in the world.
INEC, whose case was argued by Agabi, in adopting its brief, formulated 11 issues for determination. But it elaborated on just four of them.
Agabi said INEC conducted the election in compliance with the constitution, which stipulates the time within which elections must be conducted.
He said that non-compliance with the electoral law is presumed by law and petitioner cannot rest on it for his case, stressing that the petitioner must prove his case.
Agabi submitted that the fact that the petitioner did not challenge the election in some states showed that they were satisfied and that the argument that ballot papers were not serialised could not stand.
"The result from Lagos State shows that they (ANPP and AC) won 80% and not 30%. They called men of rank and position to testify for them. What they were saying is that they participated in the election. This is not a case in which you can make allowances," Agabi said.
Replying on point of law, Ngige relied on the case of Ojukwu on the decision of the apex court that unlawful exclusion does not take a particular form.
He said: "You cannot use the presence of the party agents to deny a candidate and said that he participated" and urged the court to allow the appeal.
After all arguments on points of law, Justice Kutigi said the court had reserved judgment till a later date.
Yesterday's court session was attended by PDP National Chairman, Chief Vincent Ogbulafor, party executives, some state governors, deputy governors and ministers.
Buhari, Atiku's running mate in the election, Senator Ben Obi, and many others were also in attendance.
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