Why we dismissed Atiku’s appeal against Buhari-Supreme Court

The Supreme Court in a  full judgment  on Friday held that President Muhammadu Buhari was “eminently qualified” to have contested the February 23 presidential election that returned him for a second term in office.

The apex court had in a summary judgment on October 30, 2019 affirmed the decision of the presidential election petition tribunal which validated the declaration of President Muhammadu Buhari by the Independent National Electoral Commission (INEC) as winner of the Febraury 23 polls, but had reserved it’s reasons.

But giving reasons for it’s judgment on Friday, the court in the lead judgment prepared by the Chief Justice of Nigeria (CJN), Justice Ibrahim Muhammad, agreed with the findings of the tribunal.

Justice John Okoro who read the judgment, affirmed the decision of the Presidential Election Petition Tribunal which held that Buhari possessed the requisite educational qualification to contest the poll.

It added that by virtue of the provisions of the Constitution, a candidate who possesses a primary school certificate and has worked in the public or private service for a period not less than 10 years, and can read, write and communicate in the English language to the satisfaction of INEC is qualified to contest.

Section 131 (d) of the 1999 Constitution (as amended) has been cited in support of the contention by proponents of that view to support their position.

“The said Section (Section 131) 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

According to the court,  in Section 318, “School Certificate or its equivalent” means:(a) a Secondary School Certificate, 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 10 years.

“Also (ii) attendance at courses and training in such institutions as may be acceptable to the INEC for periods totalling 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 electoral commission, and

(d) any other qualification acceptable by INEC. This means INEC has also been empowered by the Constitution to accept any piece of employment paper as School Certificate equivalent to be President of Nigeria.

The CJN noted “that in interpretating the constitution, care must be taken to give it it’s clear and ordinary meanings. I am well guided by the provisions of section 131(a) that the attendance of Secondary School suffice for the 2nd respondent (Buhari) to contest the presidential election without an actual possession of the certificate.

Going further, Justice Muhammed held ” that the constitution is liberal to the extent that by section 131 (d), any other qualifications accepted by INEC qualifies a person to contest for the position of the president.

“What a liberal constitution. It does not require a person to have all the qualifications listed. A possession of one of them will suffice. The word “or” implies that any of the highlighted requirements suffice.

“I also agree with counsel to Buhari that INEC has consistently clear him to contest presidential elections.”

In addition, the court held that Certified True Copies of Buhari’s academic qualifications he tendered as exhibits were not challenged by the appellants by way of calling oral evidence to prove that they are false.

“They ought to have lead oral evidence to prove that the documents tendered by Buhari at the tribunal are false.  The

The  court noted that evidence of the Secretary to the Military Board, Brig. Gen. Olajide Olaleye as contained in his press statement “confirmed that the 2nd respondent was educated up to Secondary School level and passed the subjects listed in the statement.”

“I am satisfied that the court below was right to hold that the 2nd respondent was emminently qualified to contest the presidential election.

“The 2nd respondent possessed more than Secondary School Certificate having attended military courses in the United States of America (USA); the United Kingdom (UK) and India and rosed to the rank of a General and became a Head of State.”

On the allegations that Buhari submitted an affidavit to INEC containing false information about his educational qualifications, the court held that the appellants failed to prove the allegations beyond reasonable doubt.

It noted that the allegations are firmly rooted in acts of criminality and the test of prove is beyond reasonable doubt which the appellants failed to do.

“They most most adduced reasons and lead credible evidence to prove which they failed to do. The should have called the Secretary of the Military Board, Brig. Gen. Olajide Olaleye to testify and be cross examined by the respondents on this issue.

“The failure to have called him as a witness was fatal to their case because the 2nd respondent does not need to call him to prove allegations against him as doing so would amount to standing the law on it’s head. This is because he who alleges has the duty to prove the allegations.”

Besides, the court held that the appellants ought to have instituted a suit against the 2nd respondent based on section 131 of the Electoral Act.

On the issue of INEC server, the court held that the appellants failed to prove that the www.factsdontlie.ng from which the appellants downloaded the results of the election which they relied on, belonged to INEC.

 “The issue in this appeal is not whether INEC has a website.

“It is not whether INEC posted the results of the presidential election on its website.

“It is whether the www.factsdontlieng.com from which the appellants downloaded the results belonged to INEC.”

The CJN noted that the appellants’ witness 59 admitted that the results which they claimed gave Atiku and PDP victory over Buhari was obtained by an anonymous employee of INEC acting as a whistleblower and uploaded to www.factsdontlieng.com website.

“The website, www.factsdontlieng.com, belonged to the whistleblower and not INEC,” the CJN ruled.

The CJN held that it was fatal to the case of the appellants that they failed to appeal to the specific finding of the Presidential Election Petition Tribunal that the said website did not belong to INEC but the whistleblower.

“It ought to have dawned on the appellants that the game was up,” Justice Muhammad added.

He ruled that Atiku and his party failed to link that the content of the disputed website was obtained from the alleged INEC server.

“He did not rely on INEC server which is doubtful and unreliable having emanted from an unascertainable domain.  Whatever result that came from a server not owned by INEC but by a whistleblower, anonymous INEC staff cannot be relied upon.

“Therefore, all the data, analysis and conclusions based on the content of the alleged server are of no moment. Justice Muhammad also said.

The Supreme Court also said the appellants failed to prove the alleged irregularities including overvoting.

It added that the appellants merely dumped documents on the lower court without calling witnesses to demonstrate them.

It held that: “no probative value would be attached to the documents by the court until the makers are called to speak on them and also be cross-examined by the respondents.”

It ruled that it was alarming that the appellants only called five polling unit agents across the entire polling units in the country in their attempt to prove the alleged non-compliance with the provisions of the Electoral Act.

On the allegations on the variation in the names of Mohammed and Muhammadu, the court held that they are same names belonging to Buhari since the appellants failed to lead evidence to show that the names belongs to another person.

Meanwhile, the litany of lawyers including the over 10 Senior Advocates of Nigeria(SAN) representing the Democratic Party and its presidential candidate,  Atiku Abubakar, on Friday boycotted the sitting of the Supreme Court where the reasons for the dismissal of their appeal challenging the outcome of the February 23 presidential election is being  delivered.

On the other hand, many of the SANs who led the legal teams of President Muhammadu Buhari, the winner of the poll, the All Progressives Congress and the Independent National Electoral Commission were already seated ahead of the proceedings that began at about 9.05am on Friday.

Commenting on the absence of the lawyers to Atiku and PDP, Dr. Alex Izinyon (SAN), who appeared for President Muhammadu Buhari, stated that their actions are against the rules of the court.

He however apologized to the court for the absence of the petitioners lawyers saying it was not a normal practice.

Regardless, Justice John Okoro who confirmed that counsel to the petitioners were served with hearing notice on Wednesday, said the court sitting cannot be postponed.