Ise-Oluwa Ige And By Leon Usigbe
13 December 2008
The Supreme Court yesterday laid to rest the dispute over the April 21, 2007 presidential poll by dismissing petitions brought before it by former military head of state, Major General Muhammadu Buhari of the All Nigeria Peoples Party (ANPP) and ex Vice President, Alhaji Atiku Abubakar of the Action Congress (AC). The Supreme in dismissing the petitions said both lacked merit.
But Buhari in his reaction said the apex court has let down the country's judiciary. At press briefing in Abuja after the judgement, Buhari said that while he accepted the decision as a democrat, he would never agree with it, stating his determination to remain in partisan politics for the sake of the toiling masses of the country.
"The verdict is not what the world is expecting, and it will be received throughout the country with shock, anger and disbelief. The international community too will, no doubt, be shocked and scandalized that an election which they themselves held as deeply flawed, a fact conceded on several occasions by the President himself, has been upheld by the Nigerian judiciary.
"The judgement of the Supreme Court has let the judiciary down, has disappointed the country and its esteem has gone with the Nigerian public and with the international community. They have forced a giant to pass through the eye of a needle," he said.
He remarked that his team had pursued the case in the belief that they were taking the action on behalf of Nigerians with the hope that the judiciary would examine their position on merit and arrive at a judgement based on facts presented in court.
"When the Court of Appeal, in flagrant disregard for facts presented, ruled that we did not present any evidence, we painstakingly re-presented them to the Supreme Court. Although the seven justices who constituted the panel that heard the two cases yesterday differed in their opinion on the validity of the election, majority decision of the court however saved Yar'Adua's job as it upheld his election."
However, the panel of seven justices, including the Chief Justice of Nigeria (CJN), Justice Idris Legbo Kutigi which delivered judgments on the two cases yesterday agreed that the process that led to the emergence of Yar'Adua as the winner of the poll was marred with gross non compliance with the electoral laws.
The seven justices only parted way while entering their individual verdicts on whether or not to validate the election of President Yar'Adua given the substantiality of the non-compliance with the electoral laws.
Specifically, they differed on whether or not the non-compliance by the Independent National Electoral Commission (INEC) in the conduct of the poll with the electoral laws was substantial enough to overturn the election.
For instance, in the Buhari's case against Yar'Adua, the Supreme Court gave the verdict to Yar'Adua by a split judgment of four to three.
In simple language, four of the seven-member panel said that although the election was marred with irregularities but that the non-compliance with the electoral laws was not substantial enough to invalidate the election.
The justices who teamed up to save Yar'Adua's job were the Chief Justice of Nigeria , Justice Idris Legbo Kutigi, Justice Katsina Alu, Justice Niki Tobi and Justice Dahiru Musdapher.
Justice Niki Tobi delivered the leading majority judgment that validated the presidential poll.
In the lead judgment, Justice Niki Tobi gave nine reasons why he would validate the election results as announced by the Independent Electoral Commission (INEC).
His words: "The final question that I should consider or address in this judgment is whether the appellant proved his case as deposed to in his petition. By way of recapitulation, I answer the question as follows:
1. On 21st April, 2007, Chief M. I. Ahamba, SAN for the appellant indicated that he would call 150 witnesses (see page 46, Volume I of Record) but he finally ended up with 19. Although cases are not won by a village or community of witnesses, where are the remaining 131 depositions of witnesses? Should the appellant be taken as making a great play in this important matter of calling evidence and if so, can he say in reality that he proved his case?
2. In an election petition challenging the conduct of the election throughout the length and breath of a vast country like Nigeria , are 19 witnesses adequate to prove the case of the appellant, even when it is conceded once again that a case is not won by calling a village or community of witnesses?
3. Out of the 19 witness depositions, 18 were rejected by the Court of Appeal. Were the 18 rejected not designed to prove the case of the appellant, and if so, can the appellant say in reality that he proved his case?
4. By paragraph 3, only one witness was left to give evidence, Mr. Bernard Nimfa Bamfa of Plateau State . It is contended by the 4th and 5th respondents that the evidence of the witness was not pleaded. Assuming that the evidence was duly pleaded and the Court of Appeal accepted it as correct, can the appellant say in reality that he proved his case with only one witness in an election of this dimension and magnitude?
5. In the election petition, the appellant withdrew all the allegations of crime including corruption and the paragraphs were duly struck out. Did the withdrawal and subsequent striking out of the paragraphs on crime help in proving the case of the appellant? If so in what way?
6. In paragraph 16 of the witness statement of the appellant, General Muhammadu Buhari, he averred as follows:
'Statutorily, I have agents in every State of the Federation and these agents gave me the information which I verily believe, that apart from a few States like Lagos, Rivers, Kano, Zamfara, Barno, Kaduna, Sokoto and Kaduna (sic), polling materials did not arrive the State headquarters of the 1st respondent of the remaining States before noon on election day, and in many cases, arrived at 2.30-3.00 p.m.'
Allegations bordering on non-compliance with the Electoral Act, 200.6 deposed to any witnesses' statements.
Learned Senior Advocate for the appellant did not provide any answer. An agent is the representative of the candidate in the polling station. He sees all the activities. He hears every talk in the station.
He also sees all actions and inactions in the station. Any evidence given by a person who was not present at the polling units or polling booth like the appellant is certainly hearsay.
And here, I so regard paragraph 16 of the witness statement or deposition of the appellant. After all, he was not there. He was given the information by the agents.
The million naira question is why did these agents not make statements as witnesses? In my view, agents are in the most vantage point to give evidence of wrong doing in a polling unit or polling booth.
Can the appellant say in reality that he proved his case without calling any agent?
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