How Buhari Lost His Petition: Similarities Between His Tribunal Case In 2019 & 2007
By Emmanuel Ogebe
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.
NB: Personal opinion of the writer.
Barrister Emmanuel Ogebe writes from USA.