Just a day after it emerged that the Supreme Court will again hear the appeal of the Hope Democratic Party (HDP) and its presidential candidate on Monday, information has emerged the apex court will next Wednesdaybegin hearing the appeal of the candidate of the Peoples Democratic Party (PDP) in the February 23 presidential election, Atiku Abubakar and his party, against the judgment of the Presidential Election Petition Tribunal which affirmed the election of President Muhammadu Buhari.
Atiku’s camp, less than 48 hours ago, had raised issues over the delay in constituting justices to hear his appeal, as time continues to run out.
Though the apex court is yet to make public the date hearing will commence, feelers however said that the hearing will commence on Wednesday in full blast.
A senior lawyer in the matter in a text message on Sunday confirmed to our correspondent that the apex court has constituted a panel that will hear Atiku and PDP’s appeal challenging the declaration of Buhari as lawful winner of the February 23 poll.
“A panel has been constituted and case to be heard this week Wednesday “, he said in response to a question on the position of the appeal.
Although the list of members of the panel is not yet made public, there has been a disagreement between the PDP and the ruling All Progressives Congress (APC) over those to sit.
If the tradition of seniority is followed, those likely be in the panel are the Chief Justice of Nigeria (CJN), Ibrahim Tanko Mohammad, Justices Bode Rhodes-Vivour, Mary Odili, Mohammed Musa Datijo, Sylvester Nwali Ngwuta, Kayode Ariwoola and Tokunbo Kudirat Kekere-Ekun.
Recall that Atiku’s spokesman, Mr. Paul Ibe had said concerning the delay in constituting the panel: “We hope that our interest and the interest of Atiku Abubakar in this matter will not be compromised on account of time. We are concerned. We are worried about it. We do not know why it is taking this long.”
Similarly, a senior lawyer in the legal team of the appeallants, Chief Mike Ozekhome SAN noted that the worries of the appeallants arose from the fact that, “Election petitions are time-bound and time lined and the Supreme Court has decided that the constitutional time provided for election petitions is like the Rock of Gibraltar that cannot be moved.
“So, I believe, therefore, that the Supreme Court is much aware of their extant decision and the sensitive nature of this case which has caught the attention of not just Nigerians but the entire world. I believe that the Supreme Court will do the needful. I have no fear of that at all”.
Atiku and PDP appeal is predicated on 66 grounds in which they urged the apex court to set aside the decision of the PEPT in its entirety on grounds that the tribunal erred in reaching the conclusion that the petitioners failed to prove their case against the respondents.
They hinged their case on grounds that Buhari lied on oath in his form CF001 submitted to INEC to aid his clearance for the presidential election.
They have also alleged Irregularities and substantial non compliance with the Electoral Act and Guidelines during the poll.
Respondents in the appeal include the Independent National Electoral Commission (INEC), President Muhammadu Buhari and the All Progressives Congress (APC).
In the appeal filed against the upholding of Buhari’s election by the tribunal, the appellants while claiming that the panel erred in law by holding that Buhari was emminently qualified to contest the poll, accused the panel of descending into the arena to defend the cause of Buhari in the petition.
Specifically, they accused the justices of the PEPT of making use of evidence never pleaded/led at the trial by any of the respondents and sometimes credited statements to the respondents’ witnesses which were never made.
For example they submitted that, “There was no evidence at the trial that schooling at the Military Training School was “higher than Secondary School Certificate Education”
“The 2nd Respondent or any of the Respondents for that matter did not lead evidence on the meaning of “Officer Cadet”.
“The 2nd Respondent neither claimed nor led evidence that the 2nd Respondent was “eminently qualified to contest.”
“Contrary to the testimony of RW1 regarding the submission of his Certificates to the Army, the lower Court inferred that the 2nd Respondent “in fact submitted his Certificates to the Military.”
The appellants further argued that INEC did not lead evidence wherein it informed the Court that it was satisfied with the qualification of Buhari.
Also Buhari according to them throughout the trial did not lead any evidence to show that he successfully went through Primary School, Secondary School and famous Military College(s) in the USA, UK and or India, whereas the lower Court assumed he did.
In ground one of the appeal, Atiku and PDP submitted that the Justices of the Court of Appeal erred in law when they relied on “overall interest of justice” to hold that Buhari’s documents were properly admitted in evidence.
According to Atiku and PDP, the said documents which bordered around his certifcates were not pleaded and were not frontloaded.
On ground two, relating to the ruling of the tribunal that Buhari does not need to attach his certifcate to his form CF 001, the appellants submitted that the tribunal gave restrictive interpretation to Section 76 of the Electoral Act 2010 (as amended) in order to exclude Form CF001 from its provisions.
“The conduct of election by the 1st Respondent starts with the screening of candidates, they said “No candidate can be screened unless he completes Form CF001 (Exhibit P1).
“In Form CF001, under the column for “Schools Attended/Educational Qualification with dates”, there is the clear provision: “ATTACH EVIDENCE OF ALL EDUCATIONAL QUALIFICATIONS”.
“Certificates are evidence of educational qualifications.
“The lower Court held that Buhari passed with credits in English Language, Geography, History, Health Science, Hausa and a pass in English Literature in 1961 by inference when there was no evidence throughout the trial and indeed no evidence from the School Principal to the effect that the 2nd Respondent wrote or actually passed those subjects”, they argued.
In addition they accused the tribunal of attaching evidential value to the military statement on Buhari’s certifcate in making a case for Buhari after rejecting same document for lack of probative value.
But the appellants submitted that they led sufficient evidence before the lower Court to prove that Buhari lied concerning the Schools he purported to have attended and Certificates obtained.
“If anything, the evidence of RW1 and RW2 concerning educational qualifications of the 2nd Respondent as filled in Form CF001 on 8/10/2018 is merely hearsay. The 2nd Respondent did not attach to Form CF001, filled on 8/10/2018, the Certificates he claimed to have attained neither did he tender any Certificate before the lower Court as conclusive proof of his educational qualifications”.
They said that the crucial issue in their case is that the purported claim by Buhari that his “Primary School Leaving Certificate, WASC and Officer Cadet” are with the Secretary of the Military Board is false.
On the issue of denying probative value on documents tendered by the petitioners for failure to call relevant Witnesses, the appellants submitted that exhibits tendered before the lower Court were Certified True Copies of rlectoral documents.
“PW60, PW62 and other witnesses called by the appellants through their Statements on Oath which they adopted, had spoken to the Exhibits and tied them to the appellants’ case.
“RW7 called by the 2nd respondent was confronted with some of the electoral forms and he spoke to them and thereby tied them to the appellants’ case.
“Being Certified True Copies of public documents, there was no need to call the makers as a party can rely on entries on the face of result sheet.
“The exhibits were not in any way dumped on the lower Court, as erroneously held by the Court.
“PW60 analyzed and testified on the effect and contents of the documents admitted as exhibits by the Court”, they argued.
The appellant further faulted the position of the tribunal on the variation in the name of Buhari, wherein it held that it is non-sequitor since both of them refer to him, that is Whether “Mohammed” or Muhammed” or “Muhammadu” the name(s) refer to one and the same person.
They argued that Buhari neither claimed in his pleadings nor evidence that at any time he was known as “Mohamed Buhari”.
“There is no evidence on record that the name “Buhari” refers and belongs to the 2nd respondent exclusively. Neither the 2nd respondent nor any witness called by him testified that he was at any time known as “Mohamed Buhari”.
They also faulted the tribunal’s position on use of smart reader on grounds that the prohibition on the use of electronic voting contained in section 52(1) (b) of the Electoral Act, 2010 was amended and deleted therefrom by the Electoral (Amendment) Act, 2015 Government Notice No. 26 of 31 March 2015, Federal Republic of Nigeria Official Gazette.
On the issue of not calling relevant witnesses, the appellants said the onus was on Buhari to prove or establish his assertion that the certificates he listed in Form CF001 filled and submitted to INEC were in fact with the Nigerian Military Board especially in the face of the denial by the Nigerian Army vide exhibits P24 and P80.
“The appellants had no responsibility to call the then Director of Army Public Relations, Brig. Gen. Olajide Laleye.
“Exhibit P80 is the video recording and transcripts also tendered wherein the then Director of Army Public Relations, Brig. Gen. Olajide Laleye denied the claim of the 2nd respondent that his certificates were with the Army. The said video was played in open court.
“Brigadier General Olajide Laleye was very clear in exhibit P24 (Same as R23) in his statement that neither the original copy or CTC nor Statement of Result of the 2nd respondent was found in his file.
“The said statement of Brigadier General Olajide Olaleye excludes any inference to the effect that the Nigerian Army had the certificates of the 2nd respondent.
They also submitted that the lower court failed to see that it is not only a polling agent or an official of INEC that can examine EC8As, EC8Bs and EC8Cs in respect of the eleven (11) focal States in order to determine who scored the majority of lawful votes cast at the election.
“The lower court failed to appreciate that ground 1 of the Petition is that the 2nd respondent was not duly elected by majority of lawful votes cast at the election and the facts in support of this ground are fully pleaded in the petition and supported in the evidence of PW60”.
According to them the tribunal failed to see that the appellants pleaded various instances of non-compliance as well as corrupt practices that substantially affected the result of the election.
The argued that the evidence of the 62 witnesses called by them were not controverted by the respondents.
In further faulting the decision of the tribunal, Atiku and PDP argued that the lower court failed to appreciate that INEC who is a party to the petition never said that it was satisfied with the educational qualification of Buhari.
“There can be no presumption that the 1st respondent duly cleared the 2nd respondent to contest the election in the face of the provision of Section 31(1) of the Electoral Act, 2010 (as amended).
“By the force of the provision in this section, it is no longer within the discretion of the Commission (1st respondent) to clear or not to clear any candidate presented by a political party.
“Whether or not the 2nd respondent was cleared by the 1st respondent is a matter of evidence.
They are therefore asking the apex court to allow the appeal because the judgment of the Court of Appeal is against the weight of evidence.
In addition they prayed the Supreme Court to set aside the Judgment of the Court of Appeal, delivered on September 11, 2019 in petition NO: CA/PEPC/002/2019.
They also prayed the court to grant all the reliefs sought in the petition and declare them winner of the February 23 presidential poll or in the alternative annull the victory of Buhari and ordered for a fresh election.