ELECTION 2007 FORUM: How Yar`Adua knocked off six of eight petitions against his victory…But Atiku, Buhari remain

No Comments » September 22nd, 2007 posted by // Categories: Electoral Reform Project



VANGUARD

How Yar’Adua knocked off six of eight petitions against his victory

By IseOluwa Ige
Posted to the Web: Saturday, September 22, 2007

On April 23, this year, Prof Maurice Iwu, the chairman of the Independent National Electoral Commission (INEC) declared Alhaji Umaru Musa Yar’Adua as the winner of the April 21, 2007 presidential poll.

Yar’Adua was the presidential standard-bearer of the ruling Peoples Democratic Party (PDP) in the election. He was said to have polled 24,638,063 to beat 24 other contenders for the plum position. Prof Iwu specifically cited section 133 of the 1999 constitution to back up the declaration.

Defeated by Yar’Adua at the poll are the presidential candidate of the All Nigeria Peoples Party (ANPP), Maj.-Gen Muhammadu Buhari who came a distant second with 6,605,299 and his Action Congress (AC) counterpart, Vice President Atiku Abubakar who polled 2,637,848 votes, and 22 others.

But immediately the results of the presidential poll were announced, virtually all those that contested the election with Yar’Adua rejected it. They said the results did not reflect the voting patterns of Nigerians on the day. They also dismissed the poll as a sham and the worst in the history of the country. The civil society also rose to reject the poll results and carpeted INEC over the conduct of the poll.

For instance, the Nigerian Bar Association (NBA) described the Presidential election as the worst in the history of the country, having failed to reflect the wishes of the people. In fact, the umbrella organisation of legal practitioners in the country also joined the aggrieved candidates to say that the election was far from being free, fair and credible. The First Vice President of the NBA and Chairman of the NBA Election Monitoring Group, Mr. Akuro George spoke on the conduct of the poll.

According to Akuro, “the NBA notes with concern that in as much as it appreciates the problems inherent in conducting elections, there does not seem to be any meaningful sign of improvement in the electoral process in Nigeria. There is indeed deterioration in the standard of preparation from one election to the other. The situation in 1999 was much better than that of 2003 and that of 2007 is worse than 2003.”

Legal battle begins

The President of the Court of Appeal, Justice Abdullahi, did not wait long before he invoked the powers conferred upon him by the 1999 constitution to convoke the Presidential Election Petition Tribunal to avail the aggrieved the opportunity to ventilate their grievances.

But before Justice Abdullahi could convoke a panel of five justices of the court that would take anticipated election petitions, some aggrieved presidential candidates together with their political parties had already filed their petitions at the registry of the Court of Appeal in Abuja. Among them was Dr Olapade Agoro of the Progressive Action Congress (PAC).

Seven others including former Head of State, Major-General Muhammadu Buhari, his political party, the All Nigeria Peoples Party (ANPP), Alhaji Atiku Abubakar of the Action Congress (AC) also commenced separate legal moves before the Court of Appeal sitting in Abuja to invalidate the April 21 presidential election held nationwide.

Others who went to court to challenge the poll results were the presidential candidates of the All Progressive Grand Alliance Party (APGA), Chief Odumegwu Ojukwu; the presidential candidate of the Peoples Mandate Party (PMP), Dr Arthur Agwuncha Nwankwo; the presidential candidate of African Liberation Party (ALP), Chief Emmanuel Osita Okereke and the presidential candidate of Hope Democratic Party (HDP), Ambrose Owuru. Although all of them sought to invalidate Yar’Adua’s election, they gave separate reasons to invite the tribunal to void the poll results including that he was never a popular candidate to score the votes purportedly allocated to him.

How Yar’Adua “killed” six of eight petitions against his victory

There were eight separate petitions filed against President Yar’Adua’s victory, two of which were from the All Nigeria Peoples Party (ANPP). Apart from the All Nigeria Peoples Party (ANPP) which maintained a separate and distinct petition from its presidential flag-bearer’’, Maj.-Gen Muhammadu Buhari, all other presidential candidates maintained only one petition each with their political parties. Already, five of the eight petitions had been struck out by the Presidential Election Petition Tribunal for lack of competence while another maintained by ANPP was struck out upon the request by the party to withdraw it.

Yar’Adua floors Agoro

The first petition to go was the one filed by Dr Olapade Agoro with registration number CAAEP12007. In the petition, he invited the five-member Presidential Election Petition Tribunal sitting in Abuja to set aside the emergence of Alhaji Yar’’Adua as the winner of the April 21 presidential poll on six grounds.

He said, during hearing of his petition, he would demonstrate with documentary evidence and oral testimony, how the April 21 presidential poll was rigged by the ruling Peoples Democratic Party (PDP) for Yar’Adua through the use of rigging, open day vote-buying, figure manipulation, open day harassment of voters and party agents, intimidation with guns and juju, threat to life of innocent citizens and in fact killing of voters.

But Yar’Adua’s team of lawyers never allowed the tribunal to hear the petition on its merit as it filed a powerful preliminary objection challenging the competence of the petition. Both parties joined issues on the objection and the tribunal heard them. Ruling on their arguments, the tribunal agreed with Yar’Adua and held that Agoro’s petition was incompetent.

The ruling of the Chairman of the Presidential Election Petition Tribunal, Justice James Ogebe who led four others captured the beauty of the legal fireworks exchanged before the tribunal on the issue. Ogebe said: “As it stands, the petitioner cannot bring an election petition on grounds not founded on section 145 of the Electoral Act, 2006. It is therefore my view that the petitioner’s purported petition is incurably defective not only in form but also in content and is liable to be struck out.  It is unfortunate that the petitioner, a non-lawyer undertook to file the petition for himself and to represent himself in an election petition which is so technical that it can task even the best of lawyers in drafting it.

“It is not surprising therefore that the petition has completely derailed from what a petition provided for under the Electoral Act should be. “I consequently strike out the petition for incompetence. From the circumstance of this case, I make no order as to costs.”

All other members of the tribunal concurred with Ogebe on his verdict. The justices include Justices John Afolabi Fabiyi, Abubakar Abdulkadir Jega, Uwani M. Abba-Aji and Raphael Chike Agbo.

Then, ALP, HDP lose to Yar’Adua

Two petitions filed by the presidential candidate of ALP, Chief Emmanuel Osita Okereke and the presidential candidate of Hope Democratic Party (HDP), Ambrose Owuru also suffered similar fate. Chief Okereke had gone to the tribunal to challenge the election of Yar’’adua and Vice President Goodluck Jonathan on the grounds that INEC wrongfully denied him participation in the presidential polls.

He said that his photograph and his party’s logo were omitted on the ballot papers used by the Independent National Electoral Commission [INEC] for the April 21, 2007 polls contrary to the provisions of the Electoral Act 2006. He was also asking the tribunal to annul the said elections on the grounds that President Yar’Adua and Vice president Jonathan did not resign their positions as governors 30 days before the elections as provided by the relevant statutes.

The tribunal struck out the petition after agreeing with the leading counsel representing both Yar’Adua and INEC that the petition was incompetent because Chief Okereke failed to file the list of his witnesses along with his petition; failed to plead the facts of his case and failed to comply with the provisions of the Electoral Act 2006.

In the same vein, the tribunal refused to pronounce on the merit of the petition brought by the presidential candidate to Hope Democratic Party (HDP), Chief Ambrose Owuru. Owuru, in his own petition, had requested the tribunal to nullify the April 21, 2007 presidential elections on the grounds that the election held was a sham and that the poll was conducted without substantial compliance with the electoral laws. Yar’Adua challenged its competence. The tribunal, after hearing out parties in the case, struck it out on the grounds that Owuru joined wrong persons as respondents and left out necessary parties. Owuru was said to have joined Prof Maurice Iwu as a respondent instead of INEC.

He was also said to have joined Mike Okiro instead of the Inspector-General of Police. Both Okiro and Iwu joined as parties by Owuru are non-juristic persons, the tribunal held.

“His complaints are against Prof Iwu and the holder of the office of the Inspector-General of Police who were not presidential candidates in the election,” the tribunal added.

APGA, PMP also lose

The fate suffered by the petitions maintained by APGA and Peoples Mandate Party (PMP) was not different from others. A full panel of the Presidential Election Petition Tribunal hearing the two separate petitions unanimously struck them out on the grounds that they were essentially defective and grossly incompetent.

ANPP withdraw petitions against Yar’Adua, cites national interest and unity as reason

The All Nigeria Peoples Party (ANPP) which had maintained a separate petition from the one filed by its presidential flag-bearer, Maj.-Gen Muhammadu Buhari denied the election petition tribunal from pronouncing on it as it withdrew it. President Yar’Adua had worked on the party by dangling carrots before some powerful members of the party.  The carrots were so tempting that the leadership had to consider withdrawing its petition and that of its presidential candidate, Maj.-Gen Buhari who was keen about invalidating the presidential poll, from court.

It commenced the project by, first, requesting the tribunal to merge its petition with its presidential candidate’s to save time and cost but Buhari had given conditions upon which he could agree to consolidation. One of the conditions was that ANPP must not, at any stage of the prosecution, back out. He had given other reasons even as he said that he would still think about the idea.

ANPP had also suggested to the tribunal to pick Buhari’s petition, or any of the pending petitions as a test case in order to save time. But Atiku and Buhari had opposed the suggestion, saying ANPP lacked the moral right to make the suggestion having sold out by accepting to serve under the Government of National Unity floated by President Yar’Adua.

Although the tribunal had already struck out the request for consolidation and a separate application seeking to make one of the pending election petitions challenging the electoral victory of Alhaji Umaru Musa Yar’Adua in the last presidential poll a test case, both Alhaji Atiku Abubakar and Maj.-Gen Buhari said they were not bothered by ANPP’s action. In fact, Buhari had specifically said that he had been vindicated by the action of ANPP. He had said that his fear, from day one, to maintain only one petition with his party, which he claimed had compromised, had been confirmed.

He said that if he had kept his fate in the hands of his party, he said he could have been betrayed. Buhari who spoke through his lead counsel, Chief Mike Ikenna Ahamba (SAN) added that dangling of carrots to his political enemies.

The last hurdle

President Yar’’Adua has only two petitions to tackle for his government to enjoy full legitimacy.

These are the petitions filed by the presidential candidate of ANPP, Maj.-Gen Muhammadu Buhari and the one filed by the standard bearer of the Action Congress (AC), Alhaji Atiku Abubakar. If he succeeds scuttling hearing in the two petitions as he did in six others, that seals his electoral victory. Only time that will tell.

spoke through his lead counsel, Chief Mike Ikenna Ahamba (SAN) added that his fear about what ANPP could do was what informed him asking for conditions for consolidation of his petition with ANPP. He said it was now clear that he took a wise decision for not gambling to maintain the same petition with his party, ANPP.

He added that even if ANPP withdrew its petition now, he said he was not bothered because the grounds of his own petition were comprehensive enough to collapse Yar’Adua’s electoral victory. ANPP had alleged in the open court, that it was embarrassed by the responses from both Alhaji Atiku Abubakar and Maj.-Gen Buhari to its sincere request for consolidation of all pending petitions in the case. He said he was surprised that both of them could hurl insults at ANPP for not believing in its suggestion for consolidation.

Ikeazor (SAN) said: “With your kind permission, we have found ourselves in the most embarrassing situation. Having been called all sorts of names by Atiku, I will say that if not because I’m yet to get instruction from my clients, I would have withdrawn the entire petition by ANPP. This is because there is no point going ahead with it. We do not want to embarrass our sponsored candidate. The honourable thing to do is to withdraw.

“We are fighting for Buhari. But the way Buhari is even looking at us, I think it is better for us to withdraw this petition. As it is now, my lords, we need to consult. We may need to withdraw the petition. There is no morality in court,” he had added.

When ANPP failed to trap Buhari into withdrawing his petition, the party, at the next adjourned date, sang a different song. This time around, it said it was withdrawing its petition in the interest of the nation.
It also said that its decision was however “in the overall interest of Nigeria and particularly in the interest of peace and tranquility in the country and in order to move the country forward.”

The political party further explained that the deal to withdraw its petition was allegedly struck after President Umaru Musa Yar’’Adua government agreed to abide by seven cardinal conditions it placed before it before it could participate in the Government of National Unity proposed to it.

With the striking out of the ANPP’s petition, six of the eight petitions maintained against Yar’Adua’s electoral…..

VANGUARD

Yar’Adua loses bid to stop Atiku’s petition

By Ise-Oluwa Ige
Posted to the Web: Friday, September 21, 200

ABUJA — PRESIDENT Umaru Yar’Adua and the Independent National Electoral Commission (INEC), yesterday, lost a major legal battle to terminate further proceedings in the petition filed by the presidential standard bearer of the Action Congress (AC), Alhaji Atiku Abubakar, to nullify his (Yar’Adua’s) electoral victory in the April 21, 2007 polls.

The tribunal dismissed two separate motions filed by them to scuttle hearing Atiku’s petition on its merit.
The President and INEC had held that Atiku’s petition was not competent in law and ought to be struck out on the grounds that the reliefs claimed in his petition were contradictory, inconsistent, mutually exclusive and mutually divergent.

Yar’Adua , INEC lose bid to exclude Iwu from petition

Also yesterday, Justice James Ogebe-led Presidential Election Petition Tribunal dismissed a separate motion by President Yar’Adua and INEC to strike out the name of the electoral body’s Chairman, Prof Maurice Iwu, from Atiku’s petition.

Both Yar’Adua and INEC had contended that Iwu could not be sued as a party in the case being not a juristic person.
But the tribunal held that Iwu having entered a conditional appearance in the petition and having joined issues with Atiku who sued him could not have his name struck off the petition now because he cried out too late.

“The issue of joinder of Prof. Iwu and the claim by Yar’Adua that Atiku has made a contradictory, inconsistent, mutually divergent claims in form of reliefs cannot be entertained without touching on the merit of the substantive case before this court.

“I, therefore, hold that this court has full jurisdiction to entertain this petition to enable parties to ventilate their grievances. Accordingly, I dismiss both applications,” Justice Ogebe said in his lead ruling yesterday.
For the first time since hearing began in a chain of petitions challenging the electoral victory of President Yar’Adua, yesterday’s loss was the first ruling to warrant his going to the appellate court.

Yar’Adua takes case to S-Court

He has already filed a notice of appeal at the registry of the Court of Appeal for onward transmission to the Supreme Court  to challenge the verdict of the Presidential Election Petition Tribunal.

Yar’Adua is urging the apex court to upturn the verdict, strike out Prof Iwu’s name from the petition or throw out the entire petition as filed by Alhaji Atiku for being incompetent.

The background of yesterday’s development in the case is that President Yar’Adua approached the Presidential Election Petition Tribunal with a motion seeking to strike out the entire petition filed by Alhaji Atiku on the grounds that the reliefs claimed in his petition were contradictory, inconsistent, mutually exclusive and mutually divergent.

Yar’Adua contended that Atiku, in his petition urged the tribunal to nullify his electoral victory because he (Atiku) was excluded from participating in the presidential poll. He said Atiku had cited the provision of section 145 (1) (d) of the Electoral Act 2006 to back up his request.

The section provides: “An election may be questioned on the ground that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

Yar’Adua said Atiku in the same petition wanted his (Yar’Adua’s) electoral victory nullified on the grounds that the scores declared by INEC to candidates including himself (Atiku) were allocated and never reflected the voting patterns of Nigerians on the election day.

His lawyers said: “What calls for determination in this application is whether or not a petitioner who alleges under section 145 (d) of the Electoral Act 2006 that he was disqualified from participating in the election can also challenge the results of the election when the electoral law provides to the contrary.

“Their submission is that they can make alternative claims but we are submitting that the plaintiff is not entitled to make contradictory, inconsistent, mutually exclusive and mutually divergent claims in form of relief.

“We submit that it is only the candidate who contested the election or his political party that can challenge the results of the election. We urge the court to strike out their prayers or their entire petition,” he said.

Yar’Adua also urged the tribunal to strike out the name of Iwu from the petition being not a juristic person.
Similarly, INEC brought a motion seeking to strike out the name of Prof Iwu from Atiku’s petition on the ground that he is not a juristic person.

The electoral body asked the tribunal to strike out all averments in Atiku’s petition having to do with Iwu.
INEC also supported Yar’Adua in his argument that Atiku’s reliefs in his petition were inconsistent and should be struck out.
Mr Kanu Agabi (SAN) representing INEC said contrary to the claim by Atiku that this motion is late, “we submit that this motion is not late. We are still at pre-hearing stage and this is the appropriate time to bring this type of application.”

Replying them yesterday, Atiku, through his team of counsel led by Prof  Alfred Kasumu (SAN) said the two applications were couched as if they were challenging the jurisdiction of the court but that if they were properly examined, it would be discovered that they had nothing to do with jurisdiction.

Prof Kasumu told the tribunal that as for Prof Iwu, he had appeared conditionally in the petition and had joined issues with them and that it was too late in the day to bring the application.

“The dispute between the petitioner (Atiku) and the respondents cant be determined at interlocutory stage. There is no dispute that Atiku was sponsored for the April 21 presidential poll by the Action Congress. The only point of dispute is that he said he was excluded. Parties cannot accept facts which are untrue. It is the duty of the court to decide the true facts of  the case,” he said.

“The issue is: Can this court decide the issue of exclusion without going into the facts of the case? Atiku is saying that Prof Iwu allocated scores to candidates and announced the allocation as results of the election. This is an issue that must be decided at the trial.

“I see nothing the Electoral Act 2006 that says you cannot make your claims in the alternative. Our petition is competent. We have the right to make reliefs in the alternative and this matter can’t be decided without going into the merit of the case.
“My lords, Prof Iwu declared election results for the entire 36 states of the Federation on April 23, 2007 at a time when election results had come from only 11 states of the federation. We even called for his prosecution.

“Even if we have not joined him in this petition, he should have come to court to say that serious allegations were made against him and that he wants to clear his name,” he added to which Agabi said: “Part 8 of the Electoral Act 2006 deals with offences. This court is not sitting over Part 8. The Electoral Act leaves no gap. If you are talking about misdeeds, it falls under Part 8

“The Chief Electoral Officer has been sued. Why Iwu? The law says: these persons are to be joined in their official capacity,” he added.     

Ruling on their arguments, Chairman of the Tribunal, Justice James Ogebe, held: “I have listened to the arguments of both parties to the applications by the applicants (Yar’Adua and INEC) seeking to strike out the petition filed by Atiku Abubakar for being incompetent and another application seeking to strike out the name of Prof Maurice Iwu and all paragraphs having to do with him in the petition.

“It is my considered view that both applications should be refused for the following reasons: One, section 49 (2) of the First Schedule to the Electoral Act 2006 on rules or procedure for election petition provides: “an application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken fresh step in the proceedings after knowledge of the defect.

“Two, the applicants in this case have joined issues with the respondents and it is trite law that when issues for determination touch on the main case, such invitation should be avoided.

“The issue of joinder of Prof Iwu and the claim by Yar’Adua that Atiku has made a contradictory, inconsistent, mutually divergent claims in form of reliefs cannot be entertained without touching on the merit of the substantive case before this court.

“At interlocutory stage, matters that deal with the main case should not be decided.

“I therefore hold that this court has full jurisdiction to entertain this petition as it is to enable parties ventilate their grievances. Accordingly, I dismiss both applications,” he said.

Four other justices who sat on the panel with Justice Ogebe took turn to chorus “I agree” and the court rose.

Outside the court-room, the Atiku camp was jubilating while the Yar’Adua camp was discomfortingly calm.

President Yar’Adua had knocked off six of the eight petitions maintained against his electoral victory on the grounds of non-compliance with procedural law.

————–

INDEPENDENT

Tribunal Dismisses Yar’Adua’s Application Against Atiku
• President Heads For Supreme Court

By Joe Nwankwo, Snr Correspondent, Abuja
Fri, 21 Sep 2007 00:00:00

The Presidential Election Tribunal on Thursday threw out the applications of President Umaru Yar’Adua and the Independent National Electoral Commission (INEC) seeking to dismiss the petition of Atiku Abubakar against the result of the vote held in April.

Atiku, former Vice President, is the Presidential candidate of the Action Congress (AC).

The unanimous ruling in Abuja rejected the applications which sought to quash Atiku’s petition on the grounds that it was incompetent.

The applicants alleged that Atiku made contradictory claims and also wrongfully sued INEC Chairman, Maurice Iwu, in his personal capacity.

Tribunal Chairman, Justice James Ogebe, held in the lead decision that “I have listened to counsel on all sides, and having considered the two applications to strike out the petition, or some paragraphs in the petition, paragraphs 49 of the First Schedule to the Electoral Act 2006 provides that such an application should not be decided on preliminary grounds. The application was filed out of time, and the applicants have joined issues with the petitioners.

“It is trite law that at the interlocutory stage the main issues for determination in the matter cannot be touched or decided at the interlocutory stage. The issue of inconsistencies and irregularities cannot be a jurisdictional matter. The court has the jurisdiction to hear the petition on its merit so as to give parties the opportunity to present their cases. I hereby dismiss the applications”.

Yar’Adua’s counsel, Wole Olanipekun, reacted by saying that “we are going to challenge the decision at the Supreme Court, we would file latest by Friday. We are happy with the conduct of the tribunal so far, but we would definitely challenge this decision”.

Olanipekun had urged the tribunal to dismiss Atiku’s petition because “the petitioners have filed a counter affidavit and a preliminary objection to our motion, and we submit that a preliminary objection cannot be filed to a preliminary objection, it is wrong in law”.

“There cannot be an answer to an answer or a question to a question. What your lordships are called upon to determine here is whether or not a petitioner who alleged under Section 145(1)(d) of the Electoral Act that he was excluded can, at the same time, challenge the provisions of Section 145 (1,2,3) of the same Act. A petitioner is not entitled to make divergent claims.

“A petitioner is not entitled to make contradictory, mutually exclusive, and mutually divergent claims. We as respondents have raised an objection to the juristic person of the fifth respondent (Iwu) as we would be the victims of his joinder in the petition. “They said they are making personal allegations against Iwu, they raised the issue of jurisdiction.

“Our simple answer to that is that the jurisdictional issue cannot be waived. Thus they said we cannot attack the juristic personality of Iwu.

“We raised an objection that the entire petition is incompetent, and we urge the court to so hold and strike out the entire petition or the paragraphs that have to do with the juristic personality of Iwu on the ground that they are contradictory”.

INEC counsel, Kanu Agabi, also requested the tribunal to strike out the petition, or, in the alternative, strike out the name of the second petitioner (Ben Obi, Atiku’s running mate), and all the averments that have to with him and Iwu.

He added: “The petitioner made a point that the application is belated, but I submit that it is not; as all such applications ought to be taken during pre-hearing conference. According to the practice directory, we should bring such applications during pre-hearing.

“The petitioner pleaded two inconsistent facts. In one, he has pleaded facts of his exclusion, and in another, he pleaded facts of his inclusion. What is the effect of such inconsistencies in law? The petitioner has lumped a lot of facts, and therefore rendered the petition incompetent. Our prayer is that your lordships will, as you have always done, strike out the petition for incompetence”.

Atiku’s counsel, Alfred Kasumu, who appeared with Emeka Ngige, countered that the tribunal should dismiss the objections because the issues raised are not issues that can be determined without evidence.

Said he: “I submit that if the court takes a calm view on the grounds on which the applications were predicated, it has nothing to with jurisdiction. These are respondents that have appeared, joined issues; and none of these was raised in their reply.

“I submit that where issues have been raised by the respondents, that these are issues that should be determined at the trial and cannot be decided at this stage.

“They admitted that the first and second plaintiffs (Atiku and Obi) were sponsored by the third plaintiff (AC). The bone of contention now is where the first and second plaintiffs accused the INEC of excluding them from the elections. So, these are not issues that can be decided without evidence.

“We are pushing for the prosecution of (Iwu) for declaring results when he had results from only 11 states. All the objections raised are just time wasting device. The petitioners also accused them of allocating votes. All these are issues that cannot be determined without evidence. The issue of exclusion is not an issue you can determine without going into the substance of the petition.

“I urge the court to hold that the applications are incompetent, and allow us to go ahead to prove our case. Iwu should be prosecuted for criminal offence. He was joined because of his misdeeds during the elections”.

The Tribunal adjourned hearing to September 25, and expressed the hope that the consolidation of the petitions of Atiku and Muhammadu Buhari would scale through on that date.

Buhari is the Presidential candidate of the All Nigeria Peoples Party (ANPP).

 

 

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