YARADUA'S ELECTION VERDICT '08 - how the tribunal decided!

In an earlier blog posted on January 22, 2008 titled "Nigeria - the way forward", i had articulated the tribunal's verdict but premised the route traveled differently. While suggesting that President Umaru Yaradua of Nigeria fully acknowledge the crass irregularities which brought about his emergence as president, I also opined that he should take responsibility for it and apologise on behalf of his mentor, Aremu Obasanjo so that the country can move on.

Also in another blog titled"American Presidency - the road traveled", I urged the tribunal to annul the election as a pointer that such infradignities as had long held Nigeria down will no longer be tolerated.

However today, February 26. 2008 the Justice Ogembe tribunal ruled to uphold the election and I have read their reasoning in the verdict reached; and it is my believe that there was reasonable basis both in fact and in law for the decision upholding Yaradua's election. The summary of the decision is hereunder posted for your own conclusions. Happy trails!

"In a unanimous verdict of the tribunal on the separate but consolidated petitions, it held that the Buhari and his counterpart from the Action Congress (AC), former Vice President Atiku Abubakar, had failed woefully to prove their claim that the election was flawed since INEC did not conduct it in compliance with the Electoral Act 2006.
The tribunal held that the provisions of Section 146 (1) of the Electoral Act had predicated the conduct of the elections on substantial compliance to the said Electoral Act and not a total compliance to it.
In the lead judgment delivered by Justice Afolabi Fabiyi on the petition filed by Buhari, he expressed the view that assuming that it was persuaded by claims of the petitioner that the electoral body conducted the presidential election in substantial breach of the said Act, the petitioners would still be required to show the (Tribunal) how the breach substantially affected the result of the said election.
"Even if the petitioner was able to prove that the Electoral Act was not substantially complied with by the 1st and 2nd respondents (INEC and Prof. Maurice Iwu), the petitioner will have to prove that the said non-compliance has substantially affected the result of the presidential election. See the case of Buhari Vs Obasanjo (2003). It is my view that the petitioner has failed to lead evidence to prove this claim. Therefore, the issue of non-compliance to the Act is of no moment and it is accordingly resolved against the petitioner." Justice Fabiyi held.
According to Fabiyi, the petitioner failed to lead direct evidence to prove his claim as only direct evidence by witnesses who observed the non-compliance would have helped his claim. He referred parties to the case of Haruna Vs Moddibo to support this claim, where the appellate court held that "where a petitioner makes the issue of non-compliance to the Electoral Act as the basis of his petition, he must lead evidence to show that."
The tribunal held that the claims that the election was fraught with irregularities amounted to no issue as evidence to that effect were led by fact which were not pleaded before the tribunal.
"There is no shred of evidence to prove that elections held at different times, and even if there was, he has not shown how that conferred undue advantage to the 5th and 6th respondents Yar'Adua and Jonathan) to warrant the tribunal to nullify their election," he further held.
On Buhari's contention that Yar'Adua's election should be voided as he was ineligible or incompetent to have contested the said poll in view of the white paper, which indicted them issued by an Administrative Panel of Inquiry set up by the then Governor of Abia State, the tribunal held that it was of no consequence to the validity of the poll.
The tribunal rejected arguments of Yar'Adua and Jonathan's legal team that the whitepaper of the Abia State Administrative Panel of Inquiry, which indicted the duo, was invalid and should be discountenanced.
According to the tribunal, it was valid and therefore acceptable to it in evidence. But pointed out that beyond the admissibility of the tribunal, the question that naturally arises is on how much premium or value it should place on the said white paper, he said the value of the said white paper was diminished by its failure to state in clear terms the reason or basis for the purported indictment of the President and Vice President by the panel.
"Was it stated in the white paper that the 5th and 6th respondents were indicted for fraud as contemplated by Section 137 (1) of the 1999 Constitution? The white paper simply reads that the following persons were found to have done their jobs contrary to their oath of office. Even if the 5th and 6th respondents were indicted for fraud, the Supreme Court has resolved the issue in Amaechi Vs Omehia, whereof Oguntade, Jsc. held that "it is inadmissible to find a person guilty without first making a recourse to a court of law. This issue is therefore of no moment and is accordingly resolved in favour of the 5th and 6th respondents.
According to him, Since Section 137 (1) of the 1999 Constitution had clearly provided that an indictment on the ground of fraud was a compelling point to disallow a candidate from an election, the white paper would have been on a stronger wicket if it had contained that clear ground.
In spite of that position, Fabiyi insisted that even if that was done in the white paper, a plethora of authorities have made it imperative that the indictment would be pronounced on by a court of law before it can act as a bar against Yar'Adua and Jonathan.
On the failure of the INEC to administer the oath of neutrality to the electoral officers, who conducted the elections across the country, he held that the petitioner failed to lead evidence to that effect.
Beyond that, he cited Buhari Vs Obasanjo (2003), where the apex court held that the failure to administer the oath of neutrality was not enough to void the election of Yar'Adua and Jonathan since they could not be the once to blame for that lapse.
Earlier, the tribunal had dismissed the objection raised by Ahamba challenging the authority of the President of the Court of Appeal, Justice Umaru Abdullahi, to issue the Practice Direction 2007, to regulate the filing and prosecution of petitions arising from the elections.
According to the tribunal, Section 239 of the 1999 Constitution confers powers on the Court's President on original jurisdiction as well as appellate jurisdiction to issue the said Practice Direction.
The tribunal had also dismissed the evidence and pleadings of a counsel in Buhari's legal team, Valentine Ikeonu, on the premise that they breached Section 83 of the Evidence Act as well as Section 19 of the Notary Public Act.
While that provision of the Evidence Act prohibits that an affidavit be sworn to before a counsel with interest in a matter, the Notary Public Act forbids any notary to take depositions on a matter.
"Where a court erroneously admits a document, the court upon that realisation has powers to throw it out. Accordingly, the affidavits sworn to by Valentine Ikeonu are hereby struck out", Justice Fabiyi ruled.
"In conclusion, this petition has been plagued with lack of evidence to back up the claims. Accordingly, the petition is hereby dismissed", he ruled.
In the tribunal's verdict on the former Vice President's petition, Justice Fabiyi held that the position of the law was clear that where a petitioner raises a ground of unlawful exclusion, he automatically strips himself of a right to raise other grounds.
"Section 145 of the Electoral Act precludes any other ground once the ground of exclusion as been raised by a petitioner.
The ground of exclusion is mutually exclusive to other grounds", he held.
Reviewing the arguments of the petitioner on the claim of unlawful exclusion, he held that he (Atiku) was approbating and reprobating by claiming in one breath that he was excluded, whereas in another breath, he led witnesses to prove the contrary.
The tribunal wondered how he would admit the presence of his party agents at various polling centres, and yet claim that he was excluded since party agents were allowed only because their parties and candidates where in the race for elective seats.
He therefore held although INEC tried to exclude the petitioner, following the April 16, 2007 ruling of the Supreme Court, INEC published his name".
"The claim of unlawful exclusion canvassed by Atiku hereby fails and is accordingly dismissed."
But the dismissal was however not before the tribunal admitted that based on the legal battles Atiku mounted to ensure that he was allowed to run the Presidential race, his momentum at the campaigns was slowed down.
Fabiyi observed that although Section 145 of the Electoral Act gave the tribunal power to dismiss the petition without looking at any other ground since the ground of "unlawful exclusion" had failed, it (tribunal) would err on the side of caution by examining and resolving other issues.
On the issue of varying time for voting at various centres, he held that "it is immaterial that voting was shifted from 8am to 10am as the seven hours stipulated for the exercise were observed in spite of the shift in time. Besides, the shifting affected all the candidates.
"The petitioner has not shown how the shift in time of the election conferred an undue advantage to Yar'adua and Jonathan to his own detriment", he held.
He said Atiku's complaint that only his parties name was on some ballot papers, he held that it was of no consequence since, according to him, the Supreme Court has held in the Amaechi Versus Omehia case that "votes cast is for the sponsoring political party."
On the controversial results sheets, which included pre-dated, post dated and unsigned result sheets in electronic and manual forms, the jurist held that he would rely on the manually collated sheets, which was unchallenged by any party.
"The result of the manual collation has not been rebutted and it is before the Tribunal and I cannot close my eyes to it", he held.
He cited the case of Al Gore Vs George Bush, which he described as being "persuasive authority" on the question as to whether the counting of the votes in Florida in 2000 should be manually or electronically done.
"The petition fails and is hereby dismissed. In view of the importance of these cases to the evolving democracy in Nigeria.
"I make no order as to cost", he concluded. "

Other panelists including the Chairman of the tribunal, Justice James Ogenyi Ogebe, who has been elevated to the Bench of the apex court agreed with the lead judgment. Ogebe was however not present in court. Other panelists, are Justices Raphael Chikwe Agbo, Abubakar Abdulkadir Jega and Umani Abaji.

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