By Wale Ogunade
Since the judgment of the Presidential Election Petition Tribunal was given, many people, including great legal minds have taken the judges of the Tribunal, to the cleaners, calling them all sorts of names, deriding them and casting aspersion on their person.
These same people, when judgement favors them, will hail the judges, as the best, with such phrases as: victory for democracy, victory for the rule of law, judiciary is the last hope of the common man, etc.
We must learn to trust and respect our institutions, particularly the judiciary, for the great work it has been doing, in sanitizing the political space.
The political class have failed to adhere to simple rules and regulations, they set up to regulating their conduct, thus putting the burden of whipping them in line on the judiciary.
To get my drift, political activities and elections are held in other parts of the world, but you will agree with me, that Nigeria is the capital of pre and post election litigation. I don’t think I hear about election litigation in other countries as we have in Nigeria.
The court system in Nigeria, works on precedent and not sentiments, they work with decided cases, principles of law and various sections of the legislative law, such as the 1999 Constitution, Evidence Act, Electoral Act, etc, to arrive at the decision, of the Presidential Election Petition Tribunal.
For example, it is the duty of INEC to conduct elections into various elective offices between candidates who present themselves under political party platforms as provided for in Section 221 of the 1999 Constitution of the Federal Republic of Nigeria without any allegiance and or bias.
I refer to the case of: Independent National Electoral Commission & Anor V. Onyimbah Enekwechi C. Ray & Anor (2005) All FWLR pt. 265, Page 1047 @ 1050 Ratio 1, where the Court held that:
By virtue of Section 221Under the 1999 Constitution & the Electoral Act 2002 now 2010 (as Amended), the Independent National Electoral Commission (INEC) is the competent authority to conduct an election and issue result.
Thus any result issued or declared by INEC is deemed valid unless otherwise proved. I refer to the case of MARK OGBECHE UKPO V. GREGORY I. NGAJI & 23 Ors. (2010) ALL FWLR (pt. 514) Page 144 @ Page 153 Ratio 9, where the Court held that: There is in law, a rebuttal presumption that a result of any election declared by INEC is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption.
Thus, where the petitioner is unable to prove his case he will fail, as held in the case of Mustapha Fannami V Alhaji Gaji Bulama Bukar & 19 Ors (2004) All FWLR pt.198 page 1210 @ page 1221 ratio 17, where the court held that; “The burden of proof lies in the petitioner or plaintiff to prove to true his allegations and succeeds, as failure to discharge this burden will enable the trial court to find against him. To succeed in his case, evidence must be led by a petitioner to frame facts alleged in pleadings as pleadings do not constitute evidence unless the facts are admitted where evidence is not led in pleadings, it is deemed abandoned.”
The petitioners claimed that the election were marred with malpractices and violations of the people Electoral Act 2010 (as Amended) and the Regulations and Guidelines for the conduct of Election 2019, but was not able to prove the irregularities, malpractices and violations.
ln this Atiku/Buhari case, only 5 witnesses said they saw the irregularities, while the other 55, said they were told, which are hearsay, this falls into the Hearsay rules as provided for in Sections 37 and 38 of the Evidence Act, “For irregularities to be established, it must be presented to the court by the person who witnessed it and not a third party, this amounts to hearsay evidence.
In the case of Buhari v. Obasanjo (2006) 2 EPR 295 where at page 559, Akintan JSC said inter alia: “The position of the law regarding the type of evidence which must be led in support of allegations in which the figures or scores of candidates at an election are being challenged should come from the officers who were on the field where the votes were counted and/ or collated.”
The law requires the petitioner to prove his case as stated in his pleadings and if he fails to prove his case, the petition fails.
The burden of proof lies in the petitioner or plaintiff to prove to true his allegations and succeeds, as failure to discharge this burden will entitle the trial court to find against him. Evidence must be led to prove facts aver in pleadings as pleadings do not constitute evidence, unless the facts are admitted. Where evidence is not led on pleadings, it is deemed abandoned.
The petitioners claimed that the election were marred with malpractices and violations of the Electoral Act 2010 (as Amended) and the Regulations and Guidelines for the conduct of Election 2019, but were not able to prove the irregularities, malpractices and violations during cross examination.
On the issue of non compliance petitioners led evidence of non compliance from 11 states, out of 36 states and FCT, which again falls short of what is required by a petitioner to do in Section 138 of the Electoral Act.
These principles of law were not fulfilled in the Atiku/Buhari case in review, the courts are not father CHRISTMAS, they only give what is asked for after fulfilling all necessary procedures and steps.
A close look, at the cases cited here and in the judgment are some cases won based on Precedents and not sentiments. I rest my case.
Wale Ogunade is a legal practitioner