Nigeria: Why Tribunal Quashed Petition Against El-Rufai - Counsel

24 September 2019

Abdulhakeem Mustapha (SAN) was the lead counsel to Governor Nasir el-Rufai at the Kaduna State Governorship Election Petition Tribunal. In this Interview in Kaduna, Mustapha highlighted what tipped the scales of justice in el-Rufai's favour. AZA MSUE spoke with him

Last week Monday, the Kaduna State Governorship Election Petition Tribunal sat for about four hours and delivered judgement reaffirming Governor Nasir el- Rufai's election victory at the March 9, 2019 election. What reasons did Justice Ibrahim Bako give for arriving at the judgement?

The summary of the judgement is that the tribunal, first of all, dealt with all preliminary matters, preliminary objections and all interlocutory issues. The second respondent said that the petition was generic and that it should be dismissed. The tribunal refused the application and said that it was going to hear it on merit. The first respondent filed an application to amend the process by way of changing the address.

In accordance with provisions of the Electoral Act, the tribunal, rightly in my opinion, came to the conclusion that amendments that will not change the face of the petition, in the interest of Justice should be allowed. So, the tribunal granted the application and refused the petitioners' request that their response be dismissed.

After dealing with all the preliminary matters, the Tribunal went to the gist of the petition and they perused admirably, the testimonies presented by the Petitioners. First of all, the tribunal agreed with us that the law is settled and it has not changed, that for you to lead evidence on a fact, that fact must be pleaded. The petitioners called 42 witnesses to lead evidence to the fact that elections were not held in certain areas of the state. That fact was not pleaded. And 42 out of 135 witnesses, led evidence to facts that were not pleaded.

That amounted to the waste of the tribunal's time because the law is sacrosanct that if you don't plead a fact, you can't lead an evidence to it and if you do, it is an effort in futility. So, the Tribunal didn't have any hesitation than to agree with us that the Petitioners' testimonies, for all intents and purposes, belonged to the trash can.

Second, the Tribunal found as a fact that the testimonies of about 62 of the witnesses were generic, they were the same, word for word, letter for letter and content for content. The Tribunal said that it is not humanly possible for 62 people to witness an event in different locations and give the same testimony; the same paragraphs, the same words and the same statements, the same admission. And the Supreme Court has ruled that that kind of testimony cannot be believed by any reasonable tribunal because it shows that it is generic. Number three, a proper statement on oath must be signed by a witness.

The tribunal found out that in accordance with the testimony of the handwriting expert, whose evidence the petitioners could not impeach, the entire statements on oath were signed by three people. So, the tribunal agreed with the handwriting expert that those witnesses cannot be relied upon. Now, after reviewing the evidence, the tribunal restated the position of the law that the onus in civil matters, especially on election petition, lies on the claimant and in this case, the Petitioner, by preponderance of evidence, to convince the court, through quality evidence, that there were contraventions in the conduct of elections. And that they were so fundamental that they affected the outcome of the election.

Until that is done, the burden does not shift to the Respondents. The tribunal said that, having examined all the witnesses presented by the Petitioners, it came to the conclusion that none of the witnesses was able to establish that there were contraventions, or that the elections were not held in conformity with the provisions of the Electoral Act; talk less of whether the complaints were so much that they affected the election. So, the tribunal didn't have any hesitation than to dismiss the petition as lacking in merit.

You said that that the statements on oath of some of the witnesses were the same in all respect and were therefore defective. Don't you think that being illiterates, the said statements may have been written by someone who merely paraphrased what the witnesses said, which explains their similarities?

If they were illiterates, they were supposed to sign an illiterate jurat. But they signed and adopted those statements as their personal statements. So, they were lying to the court. They lied under oath and that is perjury. Each and every witness, when they entered the witness box, they adopted their statements. What that means is that "I own this statement, the statement is mine, it emanated from me and I stand by it. " But they lied! Assuming but not conceding what you said is correct, it is not possible for two witnesses, at different locations, to give the same testimony, word for word, paragraph by paragraph, statement by statement, containing the same thing in the same language. So, they were witnesses of deliberate falsehood, they wanted to pull wool over the eyes of the tribunal members, they wanted to mislead the tribunal and the tribunal saw beyond them. In some jurisdictions, those witnesses are supposed to face the court for perjury because they lied under oath.

You also said that the signatures of the witnesses are similar and the tribunal found out that about three people signed their statements of oaths. Don't you think that signing documents for people who are not lettered can be somewhat challenging, hence the similarities in signatures?

All of them signed by codes, they didn't sign their names. Again, it was generic, you see C1, C2, serially it went straight like that. And from a close look, a layman will see that the same person wrote all these. But we didn't stop at that. We called a hand writing expert, who sat down and analysed the signatures and came to the conclusion that it was signed by three people. Because we advanced that argument, the position of law is for the petitioners to call another expert to counteract, to discountenance or challenge that testimony. But they did not do that. In the course of cross examination, they were unable to impeach the evidence. So, to that extent, the tribunal again, in our considered opinion, rightly stated that those testimonies were signed by just three people.

But the petitioner's counsel, during cross examination, tried to discredit the testimony of the handwriting expert, by saying that he was a consultant who was merely paid to take that particular position. Given this fact, do you think that his testimony should have been relied upon?

When the counsel to the petitioner asked the question whether the hand writing expert was at the tribunal as a professional or as a consultant, he was emphatic that, as a professional, he was paid. But he was not paid to deceive the tribunal, that he came because he was invited by the court and he is key to assist it in the just determination of the petition before the tribunal. And that he has eminent qualifications to give that kind of evidence. Like I said, the petitioners needed to have called another witness to give a contrary evidence. Or tender a different document. But they didn't do that. So, they were unable to impeach the testimony of the hand writing expert. And the tribunal, rightly in our opinion, relied on his testimony.

In lieu of arranging someone to impeach the testimony of the hand writing expert, the counsel of the petitioners brought documents that showed that consultants can actually mislead people when paid the right price, so to say. It is rather surprising why this didn't taint the evidence of the expert...

In fact, the tribunal said that a foundation was not laid for the tendering of those documents, so the court didn't rely on them. The tribunal didn't know where they emanated from.

In the final written address, counsel to the petitioners alluded to the fact that they arranged 135 witnesses who were polling agents and people who had a direct bearing on the conduct of the election, whereas you arranged just five witnesses. The question is, when did you arrange these few witnesses, given the fact that you had ample time to call witnesses?

Like I said, in an election petition tribunal, the onus is on the petitioners to prove that the election was not conducted in accordance with the Electoral Act. Until that burden is discharged, the respondents are not, in law, required to prove anything. But we were able to show that the testimonies of the witnesses were riddled with contradictions, naked lies and no reasonable tribunal will rely on them, to the extent that the quantity of the witnesses called did not prove material allegation to the satisfaction of the standard spelt out in the Electoral Act. So, it is not the number of witnesses called that matters, it is the quality of testimony and the relevance of it. Under cross examination, the testimonies fell like a pack of cards.

The tribunal had refused the petitioners from bringing an expert witness and the matter even went to the Appeal Court which passed verdict on it. Why did you oppose the petitioners from arranging such a critical witness and what was the Court of Appeal ruling on it?

First of all, there was a ruling of the Court of Appeal on when they wanted to bring the witness on the 15th day because the 14-days threshold which was granted to them had been exhausted. Second, the tribunal refused testimony on that day because the testimony of the witness was not frontloaded. The petitioners waited till the last day, they did not frontload his testimony to give respondents the opportunity to have a fore-knowledge of it in order to be prepared. And that amounted to denial of fair hearing. And fair hearing is a natural right. So, the tribunal said what the petitioners were doing was over reaching. By and large, the Court of Appeal further said that on the 15th day that they wanted to call that witness, the tribunal no longer had jurisdiction to hear the matter. Then, they attempted to appeal the decision of the Court of Appeal but when it got to the Supreme Court, there were technical problems that arose. I think we should leave it at that.

But there was a prior agreement by all the counsel and members of the tribunal on the matter. In the course of the proceedings, there were two days that were regarded as 'half days'. And so, on the basis of that, the petitioners argued that the last day was actually the 14th day and not the 15th. Why was the agreement not taken into account by the Court of Appeal?

That agreement was not binding to the extent of its contradiction of the Electoral Act. The Electoral Act is clear that the petitioners have 14 days. Once a statute is clear and unambiguous, the parties on their own, cannot set a different rule that is contradictory to clear provisions of the statute, which in this case is the Electoral Act. The Electoral Act says that the petitioners have a maximum of 14 days and anything outside 14 days, no matter the arrangement you make with tribunal members and counsel, if they exceed that 14 days, it is null and void. Nigerians have expressed worries that election petitions are being decided on technicalities and not on the merit of the cases.

As a veteran of Election Petition Tribunals, what is really the problem?

In my own opinion, the Electoral Act needs a surgical operation. As it is, it makes it very difficult, a daunting task for the petitioners to succeed in an election petition. There is heavy reliance on technicalities which does not serve the cause of justice. But at the same time, that is our law until it is amended. Take for instance, the issue of the card reader which is expected to make elections easier and seamless and more transparent. But the nation does not have the infrastructure throughout to achieve that. These are fundamental issues that need to be addressed. The functions of an Election Tribunal is not a political one but to apply the law irrespective who is involved. If you look at the logo of the law, you will see that the face of the lady is covered. She has a knife and a scale to weigh who is wrong or right and to dispense justice without fear or favour.

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