2011 PRESIDENTIAL POLL: JONATHAN WON -S'COURT
The Supreme Court in a unanimous judgment on Wednesday in Abuja held that President Goodluck Jonathan and Vice President Namadi Sambo were validly elected. It threw out an appeal brought against the outcome of the April 16, 2011 presidential poll election by the Congress for Progressive Change [CPC] for lacking in merit.
But in a swift reaction, former Head of State and presidential candidate of the CPC, General Muhammadu Buhari, described the judgment as 'politically-motivated and has little legal content. He said, 'this Supreme Court has proved no better than the Supreme Courts of 2003 and 2007.'
Buhari was accompanied in court by CPC chieftains including the Chairman, Prince Tony Momoh and former minister for the Federal Capital Territory [FCT], Mallam Nasir el-Rufai.
The ruling Peoples Democratic Party [PDP] was represented in court by Information Minister Labaran Maku, Labour Minister Emeka Wogu and Minister for State in the Ministry of Trade and Investment, Dr. Samuel Ortom and other party faithful.
While affirming the judgment of the Court of Appeal, which sat as the presidential election tribunal, the apex court held that the CPC failed to prove the allegations of substantial non-compliance with the electoral laws against the Independent National Electoral Commission [INEC] in the conduct of the polls.
On the CPC's petition, the Supreme Court in its lead judgment delivered by Justice Olufumilayo Adekeye, noted that the only life issue left in the petition was the allegation of non-compliance brought against INEC in the conduct of the election since the criminal allegations contained in the petition were abandoned at the lower court.
Relying on this premise, the court specifically held that it was not legal enough for a petitioner to just cite the issue of non-compliance as a ground of appeal; he must prove that the non-compliance substantially affected the outcome of the election.
'It is trite law that he who asserts must prove. A person must not only assert, but also prove allegations of non-compliance. It is only then that the burden will shift to the person whom allegations of non-compliance are made against, in this case, the INEC, to defend the allegations.
'In the present appeal, the petitioners only brought all the allegations of non-compliance against INEC and expected it to provide the materials to prove the allegations. To me, that is not the law.
'The onus is on the petitioner to establish his case and he must satisfy the court that he is entitled to the relief sought by him.
'There is a general assumption that any result announced by relevant authorities or bodies is correct and authentic until the contrary is proved beyond reasonable doubts. And the burden is for the person who doubts the correctness or authenticity of the result to prove to the contrary.
'Of all the 47 witnesses called by the petitioner, none of them tendered voters' cards to show that they wanted to cast their votes in favour of the petitioner, but were prevented from doing so.
'The six agents called by the petitioner to testify gave contradictory evidence and a court of law can only produce judgment where there is credible and cogent evidence placed before it.
'The court has a duty to determine whether an election was conducted in substantial compliance by looking at the evidence placed before it.'
In his concurring judgment, the Chief Justice of Nigeria [CJN], Justice Dahiru Musdapher, whose verdict was read by Justice Walter Onnoghen, held that 'a person seeking to nullify an election can only succeed on the strength of his case and not the other way round, adding that alleged acts of non-compliance must be substantial enough to affect the result of the election.
Also, Justice John Afolabi Fabiyi held that 'the appellant took a wrong step in law by assuming that the burden of proof shifted to INEC.
Justice Mahmud Mohammed said the petition was doomed to fail from the first day it was filed because the necessary reilefs in an election petition were not sought by the petitioner to wit: order seeking that he be declared winner of the election and an order seeking for a re-run by INEC.
'This petition was doomed to fail the very day it was filed because the necessary reliefs in an election petition were not sought by the petitioner to wit: to have its candidate returned as winner and for INEC to conduct a re-run. Where these two are not a relief before the court, there was no need spending sleepless nights on it.
He advised lawyers to be diligent and to always tell their clients the truth concerning an issue before rushing to court.
In his judgment, Justice Rhodes Vivour held that the issue of non-compliance as contained in Section 139 of the Electoral Act 2010 [as amended] requires a person alleging non-compliance to prove by credible evidence.
'The onuses of prove do not shift on mere assertion that there was non-compliance.
General Buhari criticized the Supreme Court for towing the path of injustice in the determination of the petition.
'What happened in this year's 2011 elections eclipsed all other elections in the depth and scope of forgery and rigging. Initially, there were high hopes that, after 2003 and 2007, a semblance of electoral propriety would be witnessed.
'The new Chairman of INEC, Prof. Attahiru Jega, was touted as competent and a man of integrity. He has proved neither. After asking for-and getting-close to N100 billion for the election, including biometric data with all the 10-fingerprints to conduct a thorough electoral exercise, he botched it.
'When our party, CPC, demanded forensic material, fingerprinted ballot papers to prove colossal and widespread multiple voting throughout the country, rendering the election invalid in at least 25 out of the 36 states of the federation, INEC refused to provide them in court, citing national security.
'A laughable excuse if ever there was one. The national and international monitors having seen their work wasted and ignored this time took the line of least resistance and declared the elections as okay. Who can blame them? Yet, the Justices of the Supreme Court have now seen nothing wrong in this.'
The CPC had on November 11 filed a notice of appeal at the Registry of the Court of Appeal, while on November 28, it filed its appellant brief of argument, where it said that, the trial tribunal erred in law when it rejected documents required to prove multiple thumb-printing, non-distribution of electoral materials, not ascertaining the actual number of required voters, the accredited number of voters and the actual number of voters that had voted in the disputed election.
The party asked the apex court to make an order directing the President of the Court of Appeal to order another panel to entertain and determine the petition by way of a retrial, adding that the justices erred in law when they lumped together evidence of respondents' witnesses, who they acknowledged as different sets of respondents and thereby occasioned miscarriage of justice.
They similarly said the panel of justices misdirected themselves when they held that the mere assertion of the petitioner that the election was flawed would not shift the burden of disproving the assertions on the respondents and that the onus lied on the appellant to prove non-compliance.
CPC had, in its petition, sought a declaration that President Jonathan and Sambo were not duly elected in Kaduna, Sokoto, Nasarawa, Kwara, Adamawa, Abia, Akwa Ibom, Enugu, Cross River, Rivers, Ebonyi, Bayelsa, Delta, Imo, Anambra, Benue, Lagos, Plateau and the FCT.
The party asked the tribunal to hold that the results declared by INEC on April 18 by which President Jonathan returned to power, is wrongful and unlawful.
They similarly sought a declaration that the election did not produce a winner as contemplated by the provisions of the 1999 Constitution. They asked the tribunal to order INEC to organize fresh elections between Buhari and the President.
But the tribunal, in its judgment said CPC failed to prove that Jonathan's victory was based on corruption. The tribunal ruled that the party had nothing on which to consider the challenge of the votes secured by the President and his vice.