Analysis

Highlights On The Verdict Of The Court Of Appeal In The Presidential Election Petition

The burden of proof is on the party who alleges. However, the burden shifted to the Respondent the moment the Petitioner showed that the 2nd Respondent did not meet the requirement of qualification as required in form CF001, to attach all evidence of educational qualifications.
By Doris Enwezor

1. On qualification: the Judges agreed that the Petitioners have a burden of proving that Buhari is not qualified and did not discharge that burden.

Analysis: The Issue of qualification is a constitutional requirement and the grounds for qualification are many. A person desirous of standing for election must identify the best constitutional provision that makes him qualified and use as his qualification. A person is not allowed to simply say that he/she is qualified after the election, by relying on any of the Constitutional provisions. You must choose your qualifications and swim or sink with it. Buhari did not say that his qualification was being educated up to secondary school certificate level, he said that he obtained the secondary school certificate. He did not rely on his ability to speak, understand and write English language, he said that he had the Secondary School Certificate, not the equivalent. Therefore, he is to swim or sink with a Secondary School Certificate.

Conclusion: the Court of Appeal is manifestly wrong to have enlarged Buhari’s grounds of qualification by ascribing to him, qualifications that he never claimed to rely on in his form CF001. The burden of proof is on the party who alleges. However, the burden shifted to the Respondent the moment the Petitioner showed that the 2nd Respondent did not meet the requirement of qualification as required in form CF001, (which is a form made pursuant to the Electoral Act and therefore part of the Act) to attach all evidence of educational qualifications.

a. The Petitioners showed the Court that the 2nd Respondent did not attach the certificates he relied on for his qualification as a mandatory requirement of the Electoral Act vide the Form CF001. It then becomes the duty of Buhari to show why he did not attach evidence of his qualification to the said form.

b. In his bid to justify his failure to comply with the law as required in form CF001, to attach evidence of his educational qualifications, Buhari deposed to a separate Affidavit (not the verifying affidavit that forms part of the form CF001) at the FCT High Court in 2014, wherein he claimed that his certificates as listed in the form CF001 are currently with the Secretary of Army Board.

c. The Petitioners show to the Court that that Army denied the claims in that Affidavit. At this point, it became the duty of Buhari to produce the Certificate from the Army and he failed to do so. In fact, Buhari never testified in Court. Instead, his own witness testified against his interest upon their own questions. The Petitioners discharged their burden of proof even beyond the threshold of the criminal law standard.

  1. False Declaration: The Court agreed that the Petitioners failed to proof that Buhari lied in aid of his qualification.

Analysis: this angle of the decision is most mind boggling of all. The Court went out to shop for a defence for Buhari and thereby fabricated an explanation for the lies. One of the judges even called this ground an allegation of perjury, thereby showing his total lack of understanding the provision of the Electoral Act.

Conclusion: Interestingly, the Court totally decided to be ignorant of the decision of the Supreme Court in ABDULRAUF ABDULKADIR MODIBBO VS. MUSTAPHA USMAN & 2 ORS. delivered on 30th July, 2019 wherein the meaning of FALSE DECLARATION was defined and the consequences/standard of proving same were established. They went on a voyage of inferences and imagined that Buhari truly submitted his certificates to the Army in 1961 even when his Course mate clearly stated in open Court that none of them gave any certificate to the Army. The judges choose to disregard these testimony by saying that the witness was not in the position of making that determination. Remember, Buhari brought him in order to make the point that they submitted their certificate to the Army. So, this is the Court, making overt efforts to defend Buhari.

Note that, Buhari never claimed that his certificates were missing or that he is unaware of its whereabout. He made a clear declaration in an affidavit that his certificates were with the Army. The Petitioners demonstrated that the Army have denied being in possession of the certificates. At this points, it becomes the duty of Buhari to make sure that the Army produce his certificates. He is making a positive assertion that a certificate exist, while the Petitioners asserted that it doesn’t. So, a negative assertion cannot be proved, it only needs to be stated. It is the duty of the person who asserts the positive to proof its existence. Buhari failed to do this and the Court applauded him for it for failing to produce his certificates from the Army for the inspection of the Court.

  1. Server. The Court agreed that the Petitioners did not proof the existence of a server and the transmission of Election results to the INEC server.

Analysis: the entire case of server was built and centred on INEC. INEC denied having any server in their Reply to the Petition. During the trial, the Petitioners called many INEC Ad-Hoc staff who participated in the 2019 Presidential Election. They all confirmed, in their testimonies before the Court, that they were trained by INEC to transmit the result of the Election electronically using the Smart Card Reader. INEC Cross-examined them using the content of the Petition and the Statement on Oaths deposed to by the Ad-Hoc staff. INEC, Buhari and APC never asked any of the Ad-Hoc staff any question from the content of their own (INEC, Buhari and APC) Replies to the Petition, wherein their denial of Server and transmission were contained. Therefore, neither INEC, Buhari nor APC can rely solely on answers gotten from these Ad-Hoc staff as their defence in this case. Even one of the Judges agreed that INEC abandoned their defence and as such the Petitioners only needed to proof minimally in respect of server and the transmission of results. But, the lead judgment was conclusive that INEC and APC did not abandon their defence and that they were even right to rely on the evidence extracted from the cross-examination that did not emanate from their pleadings – what a court!

The Judge who made an addendum on the question of server, observed that INEC failed to call any witness to contradict the witnesses of the Petitioners and that by so doing, INEC had abandoned their defence, having not extracted the evidence they relied on from their own pleadings. This is the correct law. This admonition only reveals that the Court knew the truth, but went on to please the powers that be.

Conclusion:
It is a sad day for any nation, for judges to constitute themselves as businessmen ready to hand judgment to the most powerful. The judgment of the 9/11/19 was anything but a decision based on the evidence before the Court.

The judge never made any reference to the defence of any of the Respondents in his judgment. He went on to obtain evidence that were never before the Court and relied on same to dismiss the Petition. He inferred that Buhari must have got a certificate before the Army recruited him in 1961, inspite of conflicting evidence of when exactly Buhari even joined the Army. One of the judges told Nigeria that an old witness cannot lie, but forgot that the same witness had said Buhari was recruited into the Army in 1962. So, where the judges actually the 4th Respondents? Yes, they were and that was the reason for their unanimity of decision. They gave a judgment that is disconnect from the facts and laws placed before them.

Nigerians are not surprised at all. Nigerians already forecast that the Court is weak and helpless. The Court of Appeal only confirmed this belief.

It is not left for the Supreme Court to decide if Nigerians can look to the Judiciary for any hope of justice. The Supreme Court will have to decide if Nigerians need to determine what qualification they intend to rely on for contesting election and how they are to show that they posses the qualification they’ve chosen to rely on.

For now, qualification is needless as a claim of having one, without more, will suffice. Atleast, that was the thinking of persons who called themselves judges.

Doris Obi Enwezor is a political strategist and social commentator.

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