Why Atiku Couldn’t Come – A Legal Review by Hussaini Hussaini


 It will be worthwhile to begin by paraphrasing a statement made by Prince L.O. Fagbemi, SAN at the inaugural session of the Presidential Election Petition Court thus: “the court is where we fish (as lawyers), and we will try to keep the waters clean.”
At this critical time it is our duty as lawyers to educate the people on the reasons behind the Judgment of the court and not to leave my lords and indeed, the entire judiciary at the mercy of paid internet trolls or minions who will not only desecrate the bench, but will by extension ridicule and disrespect the entire legal profession.

Our office, Dikko and Mahmoud, Solicitors and Advocates, led by its Managing Partner, AB Mahmoud,SAN were part of the lawyers representing President Muhammad Buhari in the case and I was privileged to be among the junior counsel who were in our office’s team for the election petition. In the course of such duties I had the opportunity of reading and researching on the entire petition of Atiku/PDP and the depositions of all their witnesses.
We worked to perfect our contributions to the team to a point that we sometimes spent the night in office. In addition, I attended at least 95% or even 98% of the court’s sittings.
I made the above background solely to show that I’m conversant with the entire process of the petition and am in the right position to make this short analysis. I also chose the above topic to befit the popular hashtag of #AtikuIsComing.

Having said that, the petitioners (Atiku and PDP) filed their petition on five grounds which they also submitted as their issues for determination before the tribunal (preferably referred to as “ the court”), with necessary modifications.

The issues are in summary and clear words as follows:

  1. whether Buhari was qualified to contest the election at the time of the election;
  2. whether Buhari submitted to INEC affidavit containing false information of fundamental Nature;
  3. whether Buhari was elected by the majority number of lawful votes cast at the election; 4-whether the election of Buhari was invalid by reason of corrupt practices;
  4. whether the election of Buhari was invalid by reason of non-compliance with the Electoral Act and the Electoral Guidelines and Manuals.

The duty of the court was to decide all the above questions for or against either of the parties in its judgment delivered on the 11th of September, 2019. While doing so, the 1st and 2nd Issues were taken together to determine whether Buhari was qualified or he lied on oath. First, the Court made an extensive review of the facts of the case and the evidence provided by all the parties on these two issues. Atiku and PDP (the petitioners) tendered documents including: a recorded 2015 video of Brig Gen. Olajide Laleye declaring that the Nigerian Army has no copy of Buhari’s Certificate with some newspaper reports of same; a purported report from the National Archive that the school Buhari Claimed to have attended was not in existence as at the time he claimed to have attended it; and a copy of Buhari’s INEC form CF001 in which they claimed he lied on oath.

Buhari in his defense presented the copy of a Cambridge Certificate; his picture with his classmates and some higher qualifications he obtained in the course of his military career, both documentary and through oral evidence from his own witnesses and the witnesses of the petitioners. For example, the witness of the petitioners, Major Yahaya Shinko Rtd.

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 In deciding the petition, the court is bound by the relevant laws in place and the doctrine of “stare decisis”, which simply means that a court of law is bound to apply the judgement of a superior court of record when it is faced with a case of a similar facts and it should also generally apply its own previous judgment when a case with similar facts or situation is brought to it.

Therefore, while deciding this case, the tribunal answered the first two issues raised by the petitioners as follows:

Section 131 of the Constitution of the Federal Republic of Nigeria Provides

“A person shall be qualified for election to the office of
President if – (d) he has been educated up to at least School
Certificate level or its equivalent.”

Similarly, in the case of a governor, section 177 of the same constitution says:

“A person shall be qualified for election to the office of
Governor of a State if -(d) he has been educated up to at least School
Certificate level or its equivalent.”

In defining what is “school certificate or its equivalent”, the same constitution states in section 318 that “School Certificate or its equivalent” “means –
(a) a Secondary School Certificate or its equivalent, or Grade II
Teacher’s Certificate, the City and Guilds Certificate; or
(b) education up to Secondary School Certificate level; or
(c) Primary Six School Leaving Certificate or its equivalent and –
(i) service in the public or private sector in the Federation in
any capacity acceptable to the Independent National
Electoral Commission for a minimum of ten years, and
(ii) attendance at courses and training in such institutions as
may be acceptable to the Independent National Electoral
Commission for periods totaling up to a minimum of one
year, and
(iii) the ability to read, write, understand and communicate in
the English language to the satisfaction of the Independent
National Electoral Commission; and
(d) any other qualification acceptable by the Independent National”

It was recently decided by the Supreme Court in the case of Kakih v PDP where an aspirant in the Benue gubernatorial election, Mr. Terver Kakih, sued the former governor of Benue state, Gabriel Suswam and his party, PDP, alleging that Suswam has lied on oath by submitting to INEC a forged certificate and therefore perjured INEC FORM CF001. The case went to the Supreme Court and the Supreme Court in deciding in favor of Suswam and PDP held that Suswam was only required to show that he is educated up to a secondary school level and he is not even required to present a certificate if he can prove through other means that he is educated up to at least secondary school even if he left the school “without passing and obtaining the  certificate”. Their lordships held:

“In any case it is not a requirement of S.177(d) of the Constitution for the candidate to necessarily present the Certificate to qualify for election to the office of Governor of a State. By the provision of S.177(d) of the Constitution a person shall be qualified for election to the office of Governor of a State if: (a)…(b)…(c)…(d) He has been educated up to at least school certificate level or its equivalent. By Section 318 (1) “school Certificate or its equivalent” means: (a)…(b) Educated up to secondary school certificate level…”In other words as regards a secondary school certificate examination; it is enough, in my view that one attended School Certificate level i.e. without passing and obtaining the Certificate. “By the combined reading of SS. 177 (d), and 318 (b) of the Constitution is not the only requirement or basis of qualification, but whether the candidate has been educated up to Secondary School Certificate Level.”

Apparently, PDP welcomed the above judgement on 11th day of July, 2014 not knowing that they will be on the opposing side on the 11th of September, 2019. Now, the court in this case applying the above decision based on the doctrine of stare decisis, evaluated the evidence brought before it thus:

Not less than five witnesses of Atiku and PDP testified on cross examination in favor of Buhari that they knew he was a Military Officer and that they knew he was a Head of State who spoke English during his speeches or national address. Notable amongst them was Major Yahaya Shinko Rtd from Niger State who admitted that in the Nigerian Army a person has to go through trainings to rise through the ranks and he himself as a major has undergone several trainings before he was promoted to such rank. On this note, section 318 on certificate has been satisfied. In addition, the petitioners brought a video clip of Brigadier General Olajide Laleye, the former army spoke person saying that they don’t have the copy of Buhari’s certificate. Every good trial lawyer knows the video evidence, being not tendered by the maker and also as a public document, not certified by any authority, cannot be accepted by our courts. Also, against the interest of the petitioners, they brought a newspaper publication of the above statement where the army stated that they do not have the copy of Buhari’s certificate, but they have his FORM 199A which shows that he has passed all the necessary courses after his commissioning.

Buhari presented a Cambridge certificate, his course mate in the army who testified in his favour; and a copy of his secondary school class group photograph. In all, the Court held that in line with the above Supreme Court decision in Kakih v PDP and host of other authorities, President Buhari was not only qualified, but eminently qualified to contest the election and he didn’t lie on oath.

On issue 3 which contains the allegation that it was Atiku, not Buhari, that has the majority number of votes in the election. The only evidence presented by the petitioners to prove this issue was the alleged result collated electronically on the INEC server. Unfortunately, the person that was scheduled to present the document in the court was Mr Njoga from Kenya. The pleadings in support of the deposition of Njonga was contained in the Petitioners reply to INEC’s reply to the petition and it violated rule 16 of the 1st schedule to the Electoral Act which prohibits bringing new issues in a reply. Consequently, the court struke out all the paragraphs of the reply filed by the petitioners in the ruling delivered before the Judgment even though the court was generous enough to evaluate the Evidence of Mr Njoga in the judgement. In addition, Mr. Njoga admitted under cross examination that the website of INEC can be hacked to plant information. Also, the witnesses who were led to testify on the fact that they transmitted results to INEC server were all assistant presiding officers on the election day and the Manual for Election Technologies read by them under cross examination by AB Mahmoud, SAN categorically stated that the persons who had power and authority to transmit results are the presiding officers only. More significantly, section 52 (2) of the Electoral Act categorical forbids the use of electronic voting thus: “the use of electronic voting machine for the time being is prohibited”. The person presented as a statistician also stated under cross examination that he was actually, a graduate of Industrial Chemistry and he was certified as a statistician by no authority. Therefore, the court was left with no option than to decide this issue against the petitioners and discountenance the server results submitted by the petitioners.

The court merged issues 4 and 5 which invited it to determine whether the election was marred by irregularities; corrupt practices and noncompliance with the Electoral Act. The witnesses presented by the petitioners to prove this claim mainly alleged falsification of results; harassment of voters by security agents; vote buying and illegal nullifications of results among other infractions. The court has earlier struck out the pleadings of the petitioners which made some criminal allegations against some named security agents on the day of the election without making the security agents parities to the petition. This was similar to a judgement given by the Supreme Court against Buhari in the case of Buhari v Obasanjo and the court relied on same. Further relying on the same case amongst others, the tribunal held that the allegation of crime had to be proved beyond reasonable doubt and the petitioners have failed on that bases. In addition, the witnesses led to prove this were mainly local government and state collation agents of the petitioners who were by their statements not at the polling units. By the provisions of section 38 of the Evidence Act and cases relied on by the court, their evidence is inadmissible. More damaging is the fact that all the thousands of local governments, wards and polling units’ results sheets brought by the petitioners were dumped on the tribunal and no witness was called to testify and show what he alleges of falsification or the likes in it. It is elementary that where a party dumps evidence before a court, the court has no power to act on it since that will require it to jump into the arena and fine-tune the case of the party, hence, the tribunal relying on the case of Maku v Almakura discountenanced the documents. In essence, the statements of the witnesses were full of hearsay and the documents were all dumped on the court. This was in addition to statements of several witnesses who were clearly making false statements before the court such as Mr. Hussaini Haruna who has two witness statements with two different signatures at pages 311 and 339 of the petition, but he stood before the court to claim that he personally signed both the documents; or another witness who claimed that he spent about 72 hours going round polling units on the day of the election (72 Hours in one day).

This is a tip of an iceberg of all that was wrong with the case presented to the presidential election petition tribunal by Atiku and PDP. Unfortunately, it was not the same case presented to the mainstream and social media which is why the propaganda shared has subjected the court to ridicule. It should be noted however, that this writer does not aim at predicting the outcome of any possible appeal in the case.

Hussaini Hussaini is a legal practitioner  based in Abuja who can be reached via hussaini4good@gmail.com


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