Daily Trust (Abuja)

5 March 2012

Nigeria: Yuguda VS Tuggar - Who Gets the Last Verdict?

Bauchi — Today, the Supreme Court is expected to hear the appeal filed by governorship candidate of the CPC in Bauchi State, Yusuf Maitama Tuggar, against the election of Governor Isa Yuguda. The court is also expected to rule in a matter of days. Will the verdict be different this time?

On three previous occasions, Bauchi State Congress for Progressive Change (CPC) gubernatorial candidate Yusuf Maitama Tuggar lost his bid to remove Governor Isa Yuguda from office as governor of Bauchi State. First, the CPC candidate was defeated during the governorship election on April 28, 2011. Subsequently, he suffered loss at the election petition tribunal. And then, he lost his chance to get the Court of Appeal to upturn the decision of the lower tribunal. Now, the Supreme Court is about to give a verdict which will close all talks about the issue.

Tuggar and the CPC had earlier filed a petition challenging the legality of the election conducted in 18 out of the 20 local government areas of Bauchi State and asked the tribunal to declare that Governor Isa Yuguda was not qualified to contest the election in the first place, and that he was not duly elected by majority of lawful votes cast at the April 28 election. The petition also alleged the election was marred by corrupt practices and substantial non compliance with the relevant provisions of the Electoral Act (2010).

The CPC candidate alleged non-accreditation of voters, rigging, multiple voting, sharing of money by government agents, arbitrary allocation of votes, non-supply of election materials, threats and intimidation as factors that worked against the credibility of the election.

Tuggar presented 19 witnesses including forensic experts' reports to prove his case and asked the tribunal to nullify the election and either declare him the winner or order for fresh election.

The lower tribunal presided over by Justice David G Mann struck out the petition on grounds that it lacked merit. According to the court, Tuggar had failed to prove that the polls were marred by multiple thumb printing, thuggery and intimidation, harassment of voters, snatching of election materials, financial inducement and bribery which are all criminal allegations that must be proven beyond reasonable doubt. The judge also said that all the testimonies of the petitioner's 19 witnesses could not be relied upon because most of the evidences were "hearsays."

Justice Mann also discountenanced the forensic test conducted by a South African Forensic expert on 254,610 votes out of the over 770,000 scored by Yuguda during the polls.

He said that the tribunal did not question the expertise of the forensic expert but affirmed that the ways and manner in which the test was carried out left many questions unanswered, especially since all the election materials alleged in the petition were not tendered before the tribunal.

Justice Mann stated that the forensic expert during cross examinations failed to identify parts of the forensic reports, and he told the tribunal that he could not ascertain the number of ballot papers he investigated as well as that of his five other colleagues. He further adjudged that the forensic expert failed to mention the names of his five other colleagues who carried out the other investigations on the ballot papers.

The chairman also discountenance the Video Memory Cards submitted alongside the petition which according to the chairman, was dumped on the tribunal as it was not previewed before the tribunal while the tribunal lacked facilities that would enable it preview the tapes.

He, therefore, struck out the petition for lack of merit and upheld the election of Governor Yuguda, stating that "even if 245,610 votes said to have been invalidated by forensic test is removed from Yuguda's over 770,000 votes, Yuguda would still lead with over 516,215 votes.

Immediately after the lower tribunal's judgment, Tuggar appealed the judgment before the Federal Court of Appeal sitting in Jos. "He was denied justice at the tribunal in a controversial judgment fraught with inconsistencies which forced members of the Yusuf Tuggar campaign to exhaust further legal action in line with the commitment to peace and progress and appealled to the people of Bauchi State to be patient as the wheels of justice grind slowly," Tuggar's campaign organisation said shortly after the judgment.

Tuggar believed that during the trial, his counsel had presented a damning video evidence showing evidence of multiple thumb printing of ballot papers in favour of Governor Isa Yuguda, and the forensic experts' reports were able to prove that out of the 549,067 Yuguda ballots analyzed, 254,610 had multiple thumb prints. He also found strength in the fact that the respondents were unable to refute the allegations or tender EC8As, the statement result form in figures and words to prove that elections held in all the polling units in Bauchi.

Tuggar further alleged that during the exhaustive court case his counsels were able to establish that Governor Isa Yuguda did not satisfy the requirements set out in section 177(a) to (d) of the 1999 constitution at the time of election to qualify him to contest.

CPC guber candidate said during the last general elections, there were instances of ballot box snatching, thumb printing, of ballot papers across the state and much footage of irregularities were committed during the last April 28, 2011 gubernatorial election in Bauchi.

He said: "We raised three issues for determination at the tribunal; whether Governor Isa Yuguda was qualified to contest the election; whether in view of the Governor Yuguda's ineligibility to contest, Tuggar should be declared the duly elected Governor of Bauchi State and whether the elections were invalid by reason of substantial corrupt practices."

Tuggars counsels led by Senior Advocate of Nigeria Olawale Akoni, Barrister Kingsley Osuh, Barrister Pe-ter C Achunine and Barrister Yakubu Galadima, had asked the court to set aside the judgment of the lower tribunal and declare Yusuf Maitama Tuggar and his deputy Danjuma Adamu Dabo as winners of the gubernatorial election conducted by INEC in Bauchi on 28th April 2011. In the event that the court of appeal will not declare him winner, Tuggar prayed the court to direct INEC to conduct fresh election within 90 days.

The appellants argued that the lower tribunal erred in law when it held that the last general election was conducted free and fair; that Governor Isa Yuguda was qualified to contest the election and that the forensic report submitted before it was a documentary hearsay.

Tuggar pointed out that among the particulars of error in the judgment include that the Peoples Democratic Party Secretary in Bauchi, Mr Sama'ila Burga, by exhibit 24 before the lower tribunal in paragraph 8(a) of his reply, admitted that PDP did not sponsor Governor Isa Yuguda and his deputy to contest the election.

But the appeal tribunal also upheld the decision of the lower tribunal and declared Governor Isa Yuguda winner of the election.

Not satisfied with the Appeal Court Judgment, Tuggar proceeded to the Supreme Court to challenge the judgment of the appeal court. The notice of appeal was filed by counsels to Tuggar led by Olawale Akoni (SAN), Barrister Oyetola Oshobi and Barrister Kingsley Osuh. They all complained about the judgment of the court of appeal delivered on 7th January 2012.

Tuggar said the court of appeal erred in law when it failed to act on uncontradicted evidence of the 1st to 3rd respondents' non compliance of section 177 (c) of the 1999 constitution, and argued that Yuguda and his deputy were not qualified to contest the election because all the gubernatorial aspirants are required to satisfy the constitutional requirements in order to qualify to contest the election.

He alleged that Yuguda and his deputy were not nominated and sponsored by the PDP which is part of the constitutional requirement for contesting the election. Here, he relied on a documentary evidence RW 47 in which the state secretary of PDP "confirmed that Yuguda and his deputy were not nominated and sponsored by the party at the said election." It was tendered by the appellants through RW 47 under cross examinations and it was admitted as exhibit 24.

Tuggar is now asking the Supreme Court to set aside the judgment of the appeal court delivered on 7th January 2012 and declare Yusuf Tuggar and his deputy as winners of the Bauchi State Gubernatorial Election conducted by the Independent Electoral Commission INEC on Thursday 28th April 2011.

However, a foremost supporter of Governor Isa Yuguda, Ahmed Tijjani Kolo, said he has followed the case with keen interest. He said Tuggar lost his case for his inability to prove it before the previous tribunals and does not believe the Supreme Court will reverse the judgment.

"Most of the evidences like ballot papers, particulars of Governor Isa Yuguda, he failed to tender them before the lower tribunal and you can't initiate any action before the appeal or Supreme Court; that weakened his chance at the Appeal Court," Kolo said, stressing that the situation is not likely to be different at the Supreme Court.

But the PDP secretary's document marked exhibit 24, perhaps remains Tuggar's last joker at the Supreme Court. Daily Trust learnt that counsels to the CPC candidate are now capitalising on that single exhibit to try to sack Yuguda from office. Will that come to pass? And what will be the political implication for Bauchi State? These are the questions many observers are asking even as the politicians wait anxiously for the verdict of the apex court in the coming days.

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