Former head of state and presidential candidate of the All Nigeria Peoples Party (ANPP) in the April 21, 2007 election, Major-Gen. Muhammadu Buhari, has made good its threat to challenge the verdict of the Court of Appeal, Abuja, which had upheld the election of President Umaru Musa Yar�Adua.
Buhari who described Yar’ Adua’s victory at the Court of Appeal as “semi final” formally filed his appeal at the Supreme Court at the weekend.
Through his counsel, Chief Mike Ahamba (SAN), Buhari is challenging the entire decision of the appeal court sitting as Presidential Election Petitions Tribunal.
The tribunal had last Tuesday in a unanimous judgment read by Justice Afolabi Fabiyi dismissed Buhari�s petition as incompetent, saying he failed to prove beyond reasonable doubt that the non-compliance he pointed out affected the result of the April presidential poll.
The camp of Action Congress (AC) presidential candidate in the election and former vice-president, Alhaji Atiku Abubakar, was still putting finishing touches to its plans to appeal the judgment last night as it was said to be compiling the court records and grounds of appeal.
Meanwhile, governors of the 19 Northern states of the federation have appealed to Buhari and Atiku to withdraw their suits against President Yar’Adua over the disputes arising from the April 2007 general elections.
In his Notice of Appeal filed at the apex court, Buhari, however, stated that the learned Justices of the Court of Appeal erred in law when they held that there was a burden of proof on the petitioner by virtue of Section 146 [1] of the Electoral Act 2006 to prove that the established non-compliance affected the result of the election when there is no such provision in the said section.
In the particulars of error, Buhari averred that the express provision of Section 146[1] is for the appropriate party to show that the non-compliance did not substantially affect the result of the election and not that the non- compliance affected the result of the election.
He further stated that his complaint was that the election was invalid but that the court found that he failed to establish substantial non-compliance and that the burden of proof placed on him by the court was inconsistent with the substance of his complaint before the court.
Buhari insisted the justices misplaced the onus of proof on a fundamental issue in the petition and that the placement of the onus on him to establish that the non-compliance affected the result of the election was inconsistent with the decision of the Supreme Court of Nigeria in Swem vs Dzungwe (1996) Nigeria Weekly Law Report (NWLR) 279.
The appellant also in his second ground of appeal contended that the learned justices of the Court of Appeal erred in law when they unanimously held that he offered no evidence which was capable of affecting the result of the election consequent upon which they dismissed the petition.
He stated that the case as was presented before the tribunal was that the documentary exhibits presented before the court affected the validity of the election in more than 80,000 out of the 120,000 polling units in the country, more than 28 million out of the 35 million (or 36 million) votes allegedly cast at the election, and 32 million out of the 36 states of the Federation and the Federal Capital Territory.
Buhari also stated that none of the respondents challenged the facts as presented before the court and that the court did not find the asserted statistics incorrect, adding that many results at the polling units, wards and local government areas in more than 20 states of the Federation which were written either before the election, or after the election was announced, formed part of the alleged final result and that no single exhibit of the thousands before the court was adjudged illegal evidence in the judgment.
He contended that the tribunal erred in law when it failed to evaluate the plethora of evidence legally admitted in the proceedings before arriving at the conclusion that he did not prove his case before the court, adding that �the petitioner presented documentary evidence in proof of invalid election results from 32 states. Their lordships did not evaluate the effect of the invalid results from the respective states or the results at the national level EC8D (A) and EC8E”.
Buhari held that �their lordships had a judicial duty to evaluate all the evidence put before them by the petitioner. The invalidity of the results in each of the exhibits was in-controverted and their lordships found that the petitioner failed to establish substantial non-compliance with the provision of the Electoral Act 2006.�
Other grounds of appeal are that;
*That the Court of Appeal erred in law when their lordships assumed jurisdiction to inquire into the propriety or otherwise of exhibit EP34, the White Paper by the government of Abia State, when the court�s competence as a trial court under section 239(1) of the Constitution of the Federal Republic of Nigeria is expressly limited by Section 285(1) of the constitution to the determination of electoral questions.
He averred that the competence of the Court of Appeal as a first instance court for the presidential election petitions tribunal does not include judicial review of administrative action and that the Abia State Government was not before the court as a party.
*That the learned justices of the Court of Appeal erred in law when they held thus �the powers of the President of the Court of Appeal under Section 284 and 285 of the constitution is not limited to the practice and procedure of the Court of Appeal in its appellate jurisdiction, it does not extend to the power to issue practice directions not only in the appellate jurisdiction of the Court of Appeal, but also in its original jurisdiction under Section 239 of the constitution.
*That the learned justices erred in law when they held that the depositions of witnesses filed by the petitioner were incompetent before the court, when the said depositions were adopted through a ruling by the court in spite of the objection by the petitioner�s counsel to the procedure.
*That the court denied the petitioner the opportunity to call the deponents to adopt their depositions on oath against the will of the counsel of the petitioner, that the court lacked the competence to render nugatory the effect of its own order within the same proceedings and that the said depositions were not exhibits before the court as there is a difference in law between admission of evidence and adoption of depositions as a testimony before the court.
Buhari is asking the apex court to set aside the judgment of the Court of Appeal dismissing his petition, that the election of President Yar�Adua be set aside on the grounds of non-qualification and that the election purportedly conducted by the Independent National Electoral Commission [INEC] and its Chairman, Prof. Maurice Iwu, for the presidency of Nigeria be set aside and declared invalid.
Media Assistant to Atiku, Dr. Adeolu Akande, told THISDAY last night that lawyers of the former vice-president were working on filing the appeal within this week.
Under the Electoral Act 2006, the candidates have up to 21 days to file their appeal.
Adeolu said: �Our lawyers are working on filing the appeal as soon as possible. While one set is compiling the court records, another set has been busy studying the judgment in order to arrive at the grounds of appeal.�
Speaking to newsmen yesterday in Kaduna after inspecting the Niger State pavillion at the 29th Kaduna International Trade Fair, Chairman of the Northern Governors’ Forum and Niger State Governor, Dr. Babangida Aliyu, appealed to Buhari and Atiku to accept last week’s verdict of the Court of Appeal, which upheld the election of President Yar’Adua and Vice-President Goodluck Jon-athan in good faith.
Aliyu said there was no point for the duo to challenge the verdict at the Supreme Court at a time attention should be focused on serious developmental issues in the country.
Aliyu said the advice became imperative in order to further engender the unity of the North, arguing that what the North needs now is significant attention on developmental issues.
He urged the North to support the present administration to enable it focus its attention on these issues.
The Northern Governors’ Forum chairman stated that the continuous prosecution of the case at the Supreme Court would distract attention and advised Buhari and Atiku to allow the Yar’ Adua administration concentrate on the task of reviving the nation’s economy.
Aliyu also disclosed that the Northern state governors would contribute N250 million to the New Nigerian Development Company (NNDC) to recapitalise its operations, noting that the contributions of the Northern governors would make the NNDC attractive to investors and enable it secure loans to finance its business, especially telecommunications, oil and gas.
He said the governors were also concerned about the spate of the closure of industries in the North, saying at present the governors were discussing with NEXIM Bank on the N70 billion textile revival fund.
He added that the governors might stand as guarantors for the loans that might come from the Bank to reactivate closed textile factories in the North.
Aliyu said he was at the International Trade Fair to rekindle the hope and participation of all Northern states in trade fair activities and exhibition, saying it was one of the ways to draw attention to the economic potentials of the North.
He dismissed insinuations that the formation of North-Central State Governors� Forum is a signal that the Northern Governors’ Forum is dead.
He said that the forum of North- central governors would rather strenghten the unity of the North as some of them are already working together on the construction of roads, agricultural development and control of desertification.
Mar32008