In all the years that Gen. Buhari has litigated his election losses, he
has always lost. The closest he ever came to a tribunal victory to annul
the election was in the 2007 election where two dissenting justices of
the Supreme Court sided with him on appeal although he lost unanimously
at the Presidential Election Tribunal where five Justices of the Court
of appeal dismissed his challenge of Yar’Adua’s election.
Below are some similarities in the blunders made by Buhari in the 2007
election compared to his present case in 2019
INEC’S VIGOROUS DEFENCE IN 2007 v INEC’S POROUS NON-DEFENCE IN 2019
In the 2007 Presidential Election Tribunal, Kanu Agabi SAN who was
appearing for INEC began by attacking the petitioner General Buhari’s
affidavit evidence. They had filed 20 sworn testimonies of witnesses
challenging elections in 4 states and none for the remaining 31 states
and FCT. However 19 of the 20 witness statements were rendered
inadmissible.
Section 83 of the Evidence Act says a witness cannot swear an oath
before his own lawyer. The 19 affidavits were sworn before Buhari’s
lawyer and INEC’S Lawyer Agabi SAN got the court to throw them out
thus destroying Buhari’s case. Only one affidavit from Langtang local
government in Plateau was left and that alone could not anchor a
nullification of the whole presidential election with 773 other LGs in
Nigeria.
In 2019, INEC’S lawyers refused to defend their case and Buhari’s
election unlike in 2007 when INEC’s Lawyer eviscerated Buhari’s
case. PDP/ATIKU, the Petitioners in 2019 raised serious challenges to
validity and integrity of INEC’s conduct of the election. INEC
provided no rebuttal or evidence to contradict the petitioners’
allegations. It is trite law that any facts not contradicted, denied or
refuted by a party is deemed admitted. Basically in law, INEC has
conceded having a server and admitted conducting flawed elections!
BUHARI’S AFFIDAVIT EVIDENCE
While Buhari’s qualification was not at issue in the 2007 election, it
was in the 2019 one. However rather than depose to an affidavit
addressing this issue, Buhari relied on an old affidavit dated 24th
November 2014 which claimed that his certificate was with the army. The
army had since denied this publicly and it is now a notorious fact of
which the judges could take note.
Under Section 84 of the Evidence Act, a party could by application
request the court to re-swear a defective affidavit if done in time. Why
Buhari made no such request before the court or even did not depose to
any affidavit in defense of his eligibility to president remains a
mystery.
CONTRADICTION BY ORAL TESTIMONY
Ironically, in 2007, the only party who was priviledged to have an oral
witness on the stand was Buhari. The live witness swore to one of the 19
defective affidavits. Counsel to the respondents pointed out that he
said on oath in the witness box that he traveled to Abuja to swear to
the affidavit. However the affidavit was stamped by Buhari’s lawyer
bearing a Lagos address. Thus even if his affidavit were not
inadmissible, his testimony on the stand contradicted his testimony by
affidavit and thus discredited his evidence.
Similarly in the 2019 case, even if the 2014 affidavit had not been
contradicted by the army then and even if Buhari had sworn to a more
current affidavit for his 2019 case, Buhari’s own witness in 2019
contradicted Buhari when his military colleague denied that they ever
submitted original certificates to the army!
In view of this double killer punch to Buhari’s own affidavit, firstly
the notorious judicially notable rebuttal by the army as far back as
2014 and secondly the contradiction by his witness in facie curiae (in
the face of the court), Buhari lost his own evidence before the court.
This amounted to an own goal against himself!
ABANDONMENT OF ORAL TESTIMONY
In 2007, Buhari’s lawyer claimed in the media that he asked to bring
oral witnesses and was denied. Ironically the tendering of written
testimony was his only hope as their party, the ANPP, had not only
withdrawn its own petition but had also directed ts party members not to
testify on behalf of Buhari. Thus he would have been unable to muster
the live witnesses whose written statements he tendered after the party
forbade their participation.
The court in an effort to expedite the trial and give all the parties a
fair chance reached an agreement with counsel to allow all documents to
be tendered at once and objections to be raised subsequently. This
ultimately helped shorten the trial which is the briefest in Nigeria’s
history.
It gave both parties equal ammunition for the conduct of their case. One
could liken it to a soccer match in which both parties have scored a
draw and have now exhausted extra time. Each side has 5 penalty shots so
each has equal opportunity or probability of winning. The only factors
that would tilt the scores in favour of one team is if the player misses
the post (e.g. over the bar) or if the keeper catches/deflects the ball.
So all the witness affidavits were included into the record. However by
deflecting 19 out of 20 affidavits as being “over the bar” the
respondents team were able to win by disallowing the petitioner’s
teams penalty shots. This is the simplest analogy of what happened at
trial in 2007.
In 2019, according to public reports, the Petitioners tendered over
50,000 material documents, including video CDs, as exhibits while
calling 62 witness. There were also two expert witnesses, one of them in
IT from Kenya, to validate the tons of depositions and exhibits so
tendered.
The Petitioners reportedly front-loaded over 400 witness statements.
However, owing to constitutional amendments limiting time for hearing
election petitions, Petitioners couldn’t call all within the 10 days
allotted to them to do so.
The Petitioners called 62 witnesses’ testimonies covering all the five
grounds of the petition.
The Respondents, INEC, Buhari and APC, altogether tendered less than
1000 documents through the bar. They front-loaded over 600 witnesses but
only called seven within the six days allotted to them to defend all the
five grounds of the allegations.
Curiously, the first and third Respondents, INEC and APC, didn’t present
a single witness.
This is hugely important because pleadings unsupported by facts and
evidence go to no issue. INEC and APC basically surrendered to a
walkover by the Respondents.
It is important to note that in 2007, Buhari’s lawyers abandoned all
their allegations of corrupt practices in the elections. These are
criminal allegations to be proved beyond reasonable doubt. During the
hearing they were asked by the Tribunal to lead evidence concerning
corrupt practices but Buhari’s lawyers in open court abandoned them.
This means they dropped the engine block of their case leaving behind a
sorry unmovable carcass of a car.
History repeated itself when Buhari again refused to led all his witness
and cut short his defense after only one day.
Learned counsel for Respondents in 2007 said then that Buhari had shot
himself “in both feet!”
In 2007, Buhari’s claimed in the media that he lost the case because
they were not allowed to call witness whereas in fact they were the only
ones to a witness and that witness contradicted himself. In 2019 they
were given ample time of six days to bring witness but only used one
day!
The main differences between 2007 and 2019 is that Buhari was the
Petitioner then but is the Respondent now.
More important in 2007 he was in third position and was only seeking the
voiding of the election and rerun. However in 2019 Atiku is claiming the
presidency as have gained the majority of valid votes.
In conclusion to go with a football analogy to understand the election
tribunal, imagine 4 teams are tied for the World Cup finals (2019
Presidency.)
The referee gave each 5 penalty shots:
PDP/ATIKU FC took 5 shots, INEC FC took no shots, APC FC took no shot &
GMB FC took 2 shots, who do you think is most likely to win?
The truth about a “soccer ball” and “evidence,” is no matter how
loud your supporters club is, or how imposing your coach, it is only the
ball that enters the net that counts as a goal.
END
BARRISTER EMMANUEL OGEBE WRITES FROM USA
NB Personal opinion of the writer