On February 23, Nigerians had trooped out in their millions to cast their votes for a new president of the country.

The election, which was earlier scheduled for February 16, was postponed by the Independent National Electoral Commission (INEC), citing “logistics issues.”

Before the election, INEC had announced Nigeria had a total of 82,344,107 registered voters out of which more than 70 million Nigerians obtained their permanent voter cards (PVCs) to participate in the 2019 elections.

At the close of voting on February 23, the commission said a total of 29, 364,209 persons were accredited for the election. However, the total votes cast stood at 28,614,190 while the total valid votes and rejected votes stood at 27,324,583 and 1,289,607 respectively.

While announcing the result of the polls, INEC Chairman, Mahmood Yakubu, declared the candidate of the All Progressives Congress (APC), Muhammadu Buhari as the winner and returned him for a second term.

According to Mr. Yakubu, Mr. Buhari scored a total of 15, 191, 847 votes to defeat his closet rival and candidate of the Peoples Democratic Party (PDP), Atiku Abubakar who polled 11, 262, 978 votes.

Even before the result was released and the winner announced, the Mr. Abubakar and the PDP had raised the alarm over what they described as “a deliberate plot by INEC” to subvert the will of Nigerians in favour of Mr. Buhari and the APC.

It was, therefore, no surprise when the duo immediately approached the Presidential Election Petition Tribunal to challenge the result of the polls.

The former vice president and the PDP asked the tribunal to overturn the result of the February 23 polls “on the grounds of irregularities.”

In a 141-page petition, the petitioners canvased five grounds upon which they sought the tribunal to declare the result of the election in their favour.

Grounds canvassed by Mr. Abubakar and the PDP

1. Whether the 2nd Respondent (Muhammadu Buhari) was at the time of the election qualified to contest the election.

2. Whether the 2nd respondent (Muhammadu Buhari) submitted to the 1st Respondent (INEC) affidavits containing false information of a fundamental nature to boost his qualification for the said election.

3. Whether from the pleadings and evidence, it was established that the 2nd Respondent (Muhammadu Buhari) was elected by a majority of lawful votes cast at the election.

4. Whether the presidential election conducted by the 1st Respondent (INEC) on the 23rd February 2019 was invalid by reasons of corrupt practices.

5. Whether the presidential election conducted by the 1st Respondent (INEC) on the 23rd February 2019 was invalid by reasons of non-compliance with the Electoral Act 2010 (as amended); the electoral guidelines 2019; and the manuals issued for the conduct of the elections.

Before the tribunal had its first sitting, its former Chairman who is also the President of the Court of Appeal, Justice Zainab Bulkachuwa, was asked to resign from her position.

It was not only Mr. Abubakar and his party that called for Justice Bulkachuwa’s resignation, civil society groups and some prominent Nigerians also added their voices.

Those who kicked against her involvement in the tribunal insisted she is an interested party in the case.

They argued that her husband is not only a card-carrying member of the APC and a senator elected on the party’s ticket, her son also contested the gubernatorial primary of the ruling party.

With the above, Mr. Abubakar, the PDP and others argued that it would be impossible for Mrs. Bulkachuwa to hear the petition that challenged the election of Mr. Buhari, who is a member of the party her family members belonged without taking sides.

During its initial sittings, the tribunal listened to arguments on why its chairman should recuse herself and finally ruled against the petitioners.

But in an ironical twist, Mrs. Bulkachuwa stepped down from the tribunal and nominated Justice Mohammed Garba to chair the panel.

In the course of the hearing, Mr. Abubakar and the PDP called in 62 witnesses and tendered documents, including 48 videos to prove their claims.

On his part, Mr. Buhari called only seven witnesses and tendered a few documents in defence of his victory but INEC and the APC did not call any witness.

Counsels to both INEC and APC insisted they would rely on the testimonies made by the petitioners’ witnesses during cross-examination.

However, Mr. Abubakar and the PDP in their final address prayed the tribunal to nullify the election of Mr Buhari since they have been able to prove the fact that he was not qualified to run in the first place.

In a 43-page written address filed before the tribunal through their lead counsel, Livy Uzoukwu, Mr. Abubakar and the PDP argued they that President Buhari did not have the minimum academic qualification of a secondary school certificate to contest the election.

They also accused INEC of colluding with the APC to rig the poll in favour of Mr. Buhari, adding that the PDP candidate won the election with over 1 million votes.

Mr. Abubakar and the PDP also accused INEC and security agencies of perpetrating irregularities during the election to help Mr. Buhari and APC.

In the written address, the petitioners argued that the witnesses called by Mr Buhari during cross-examination admitted to the fact that the president did not possess a school certificate, being the basic requirements for contesting for the office of the president.

“We, therefore, submit that all the purported evidence led by the second respondent (Buhari) to prove that he attended a secondary school or a primary school or that he attended some courses is irrelevant because he did not rely on any of those purported qualifications in exhibit P1, he relied on primary school certificate, WASC and Officer Cadet.

“Equally futile is his attempt to prove that he can speak and write in the English language. That is all irrelevant to his inability to produce his primary school certificate, secondary school certificate or WASC and his Officer Cadet qualification, whatever that means. Officer Cadet is not a qualification or certificate under the constitution and Electoral Act; nor is it known to any law,” the petitioner stated.

They drew attention to the discrepancies in the Cambridge Assessment International Education Certifying Statement of the West African Examination Council (WAEC) certificate and a certified true copy of the purported confidential result sheet of the University of Cambridge West African School Certificate of 1961 for the Provincial Secondary School, Katsina.

They claimed that while one listed eight subjects allegedly sat for by one ‘Mohammed Buhari, the other has six subjects, insisting that both documents are unreliable and the contradiction must count against Mr. Buhair.

The petitioners also contested the claim by the president that he attended “Elementary School, Daura and Mai Aduwa 1948-52” and the Middle School, Katsina in 1953.

They argued that by 1953, the Middle School system had been abolished in the Northern Region of Nigeria.

On the claim that his certificates were with the military, the petitioners said President Buhari failed woefully to prove the claim.

They insisted that not only did Mr. Buhari’s witness openly admitted to the contrary under cross-examination by INEC’s counsel, they argued that the Nigerian Army was not in possession of his certificates.

Addressing the issue of rigging and non-compliance with the Electoral Act, Mr. Abubakar and the PDP insisted that with the plethora of evidence tendered and witnesses called, they were able to show Mr Buhar was not validly elected.

According to them, the analysis of results from 11 states showed how INEC connived with the president and the APC to wrongly and illegally credit him (Buhari) with votes not valid or lawful.

They said documents tendered before the tribunal showed huge discrepancies between collated results as contained in the Certified True Copies of forms EC8A and polling units.

The petitioners also argued that INEC cancelled a total of 2, 906,384 votes across the country and disenfranchised 2, 698,773 Nigerians, adding that when the two figures are added, the number exceeded the 3, 928,869 differential as contained in INEC form EC8E.

They, therefore, prayed the tribunal to grant all the reliefs sought in their petition.

Buhari, APC rubbish Atiku, PDP petition

On their part, the APC and Mr. Buhari in the final addresses filed by their lawyers insisted Mr. Abubakar and the PDP prove their petition.

On the issue of the electronic server, Mr. Buhari and the APC said the claim by the petitioners that the results of the presidential election were transmitted electronically from all polling units across the country was a “patent sham.”

They, therefore, described Mr. Atiku and the PDP’s claims as “infantile,” adding that the petitioners “failed woefully to establish, by credible evidence, the existence of the imaginary server belonging to the INEC and into which results were electronically transmitted from polling units.”

They averred that the INEC chairman had before the general elections stated clearly that electronic transmission of results to the server would not be possible for the 2019 general elections.

According to them, Mr. Yakubu said the inability to use the server was due to lack of Internet connectivity in most parts of Nigeria, especially areas not covered by a digital network.

Counsels to Mr. Buhari and the APC also lampooned the Kenyan expert witness called by the petitioners, saying he was unable to prove his case.

They argued that while the “expert” tendered eight exhibits in support of his testimonies, he filed to attach any certificate detailing his area of expertise as well as the certificates of his educational qualifications to his statement on oath as required by law.

“Similarly, his testimony, in all respects, only amounts to manipulations, conjecture, and speculations,” the final address read.

Similarly, Mr. Buhari and APC lawyers noted that the petition by Atiku and the PDP “failed woefully to adduce credible and reliable evidence to establish the fact that President Muhammadu Buhari forged his certificate as alleged in their petition.”

“While it is appropriate to debunk such baseless, mendacious and spurious assertion, it suffices to bring to fore the unequivocal provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which states the requirement for a candidate to contest the presidential election and occupy the office of President of the Federal Republic of Nigeria. Section 131(d) provides that; A person shall be qualified for election to the office of the President if – He has been educated up to at least School Certificate level or its equivalent,” a part of Mr. Buhari’s address to the tribunal read.

“More so, the consequence of submitting a forged document to INEC is grave. It, therefore, requires precise evidence and proof beyond a reasonable doubt, which the petitioners have not been able to establish.”

Citing Section 318 of the 1999 Constitution, counsels to both Mr. Buhari and the APC defined Secondary School Certificate or its equivalent’ to mean: “A secondary School Certificate or its equivalent, or Grade II Teacher’s certificate, the City and Guilds Certificate; or Education up to Secondary School Certificate Level; or Primary Six School Leaving Certificate or its equivalent and (a). Service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years…

“It is apparent that from the pleadings and evidence adduced led by the petitioners there is no scintilla or iota of evidence to prove that President Muhammadu Buhari was at the time of the election not qualified to contest the election. It is trite law that he who asserts must prove,” the address indicated.

Continuing, the address stated, “It could be recalled that the second respondent tendered various exhibits confirming that President Muhammadu Buhari has attained the level of education required to qualify for the position he currently holds. The 2nd Respondent further tendered a statement signed by the Vice-Chancellor, University of Cambridge, United Kingdom, attesting to the fact that President Muhammadu Buhari sat for the West African School Certificate Examination in 1961, at Provincial Secondary School, Katsina.”

On the non-calling of witnesses by the first and third respondents, the lawyers explained that although the first and third respondents (INEC and the APC) called no witnesses of their own, it was important to stress that they elicited copious relevant evidence from the petitioners’ and second respondent’s (President Buhari) witnesses under cross-examination.

“It is trite that non-calling of witnesses by a party to a case does not mean non-calling of evidence. The evidence elicited from a party or his witnesses under cross-examination, which supports the case of the party cross-examining constitutes evidence in support of the case or defence of the party,” they insisted.

How technicality will influence the ruling

In a few hours, Justice Garba and his four colleagues will file out to keep a date with history but it remains to see how history will judge them after now.

However, it remains to add that the Appeal Court has never cancelled any presidential election in the history of the country and may not do it this time.

Most of the elections cancelled by the Court of Appeal and the Supreme Court have largely been pre-election petitions, where the courts faulted the qualifications of candidates and or the processes of their emergence.

One of the country’s best constitutional lawyers, Ben Nwabueze had on July 5, advised the tribunal deliver justice without the trappings of technicality.

In a two-page address to the tribunal, Mr. Nwabueze said an election tribunal is saddled an intractable task of finding out the truth about what happened and not about the technicality of arguments.

“The task before it (tribunal) is made intractable by what Justice Kishna Iyer of the Indian Supreme Court referred to as ‘the tyranny of procedure, the horror of the doctrine of precedent, with its stifling and deadening insistence on uniformity, and the booby traps of pleadings,” the legal luminary had argued.

And in conclusion, he advised the tribunal to take, “An approach based on law but moderated by what is just and equitable in the interest of peace, security and good governance of the community is what is needed in election cases, not a rigid adherence to the technicalities of the law of pleadings and evidence and the doctrine of precedent.”

Nigerians are waiting with measured trepidation for the verdict of the five wise men and they dare not fail the over 180 million people whose lives may be put at risk because of the decision, they will take today.

They should, therefore, not act like Pontius Pilate, who, afraid of losing his friendship with Caesar, slapped Jesus and washed his hands before handing him over to his accusers for execution, even when he found no fault in the man from Nazareth.

Justice Garba and his colleagues must stand tall; they must write their names in the tablets of human hearts and redeem the battered image of the nation’s judiciary.