07 Mar 2008 |
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Who Killed Buhari’s Election Petition? – an eyewitness account by Isha Ogebe I haven’t read the 100 pages plus judgment of the
Court of Appeal in the presidential election petition but the final address
which I witnessed was a classic of how not to handle a case from a court diary I
maintained.
Kanu Agabi SAN who was appearing for INEC began by
attacking the petitioner’s affidavit evidence. They had filed 20 sworn testimonies of witnesses challenging elections in
4 states and none for the remaining 31 states and FCT. However 19 of the 20
witness statements were inadmissible.
The reason is simple. Section 83 of the evidence
Act says a witness cannot swear an oath before his own lawyer. It is an
elementary principle of law engraved in evidence law. The 19 affidavits were
sworn before notary public Val Ikeonu who works in Ahamba SAN’s chambers
(Buhari’s counsel) and actually came to court with him.
Agabi posited their evidence should be
discountenanced. Only one affidavit from Langtang local government in Plateau
was properly deposed to before a commissioner for oaths. That alone could not
anchor a nullification of the whole presidential election with 773 other LGs in
Nigeria.
Further he pointed out that under Section 84, a
party could by application request the court to re-swear a defective affidavit
if done in time. Why petitioner’s counsel made no such request before the court
whether in good time or not remains a mystery.
For his own, Wole Olanipekun SAN counsel to PDP,
said even if the 19 affidavits were not defective, he found troubling the fact
that 12 of the deponents were from Imo state while 8 of the 12 were from Mbaise
local government. Yet they wanted to offer testimony on what happened in Ekiti
state (Olanipekun’s home state) while they hail from Ahamba’s home. This
submission even drew gales of laughter from the court audience made up primarily
of Buhari’s supporters when it was made.
In response Ahamba submitted that the law says
that the court can exercise its discretion to look at a defective affidavit,
even if no one applies to cure the defect. But section 84 says ONLY IF the
affidavit is sworn to before the proper authority. Val Ikeonu was not the proper
authority in this circumstances, being a counsel in the matter, therefore the
affidavits were inadmissible in evidence.
In its judgment the court expunged the defective
affidavits and in so doing the petitioner lost the majority of his evidence
before the court. Since then counsel for the petitioner went on air accusing the
judges of ambush and not allowing him call oral witnesses.
Ironically, the only party who was priviledged to
have an oral witness on the stand was Buhari. The live witness, who incidentally
was one of those who swore to one of the 19 defective affidavits, testified
before the parties agreed to dispense with oral testimony.
In their brief attacking his testimony, counsel to
the respondents pointed out that he sid on oath in the witness box that he
traveled to Abuja to swear to the affidavit. However the affidavit was stamped
by Val Ikeonu bearing a Lagos address. Thus even if his affidavit were not
inadmissible, his testimony on the stand contradicted his testimony by affidavit
and thus discredited his evidence.
Ahamba claimed in the media that he asked to bring
oral witnesses and was denied. Ironically the tendering of written testimony was
his only hope as their party, the ANPP, had not only withdrawn its own petition
but had also directed ts party members not to testify on behalf of Buhari. Thus
he would have been unable to muster the live witnesses whose written statements
he tendered after the party forbade their participation.
The agreement to lead written evidence, again
actually worked in favour of the petitioner.
Ahamba had tried to tender thousands of documents
each of which was painstakingly and systematically objected to by the
respondent’s counsel.
The court in an effort to expedite the trial and
give all the parties a fair chance reached an agreement with counsel to allow
all documents to be tendered at once and objections to be raised subsequently.
This infuriated the Yar’adua team but it ultimately helped shorten the trial
which is the briefest in Nigeria’s history.
But for this agreement the buhari case would have
been dismissed even on preliminary objection long ago because pleadings
unsupported by facts and evidence go to no issue.
The agreement to admit all the documents actually
bought time for the petitioner and allowed them have their day in court until
their evidence was finally successfully impeached.
The effect of the admission of all parties
documents is actually interesting. It gives both parties equal ammunition for
the conduct of their case. One could liken it to a soccer match in which both
parties have scored a draw and have now exhausted extra time. Each time has 5
penalty shots so each has equal opportunity or probability of winning. The only
factors that would tilt the scores in favour of one team is if the player misses
the post (e.g. over the bar) or if the keeper catches/deflects the
ball.
So all the witness affidavits were included into
the record. However by deflecting 19 out of 20 affidavits as being “over the
bar” the respondents team were able to win by disallowing the petitioner’s teams
penalty shots. This is the simplest analogy of what happened at trial.
Ironically the respondents did not make this same
mistake of swearing the affidavits before lawyers in their own chambers inspite
of the number of affidavits they too filed. Even the petitioners got one
affidavit right in Plateau state where the witness went to swear before the
court and paid N300. It is a tragic footnote to legal history that failure to
pay N300 per affidavit gravely undermined the evidence of Buhari.
In response to why he did not comply with the
express provisions of the Evidence Act, which is generally called the lawyer’s
bible because you have to know its contents to be a successful litigator, Ahamba
declared instead that the Practice Directions were invalid.
Olanipekun declared that he had never heard such a
thing in his life. According to him, since Ahamba filed the petition under the
Practice Directions, and he was now claiming the Practice Directions were
unconstitutional, then the case was all over. He could simply just agree with
Ahamba’s position and ask the court to dismiss the petition on the
spot!
However this would have been a very dangerous
approach to take because if Ahamba’s position was upheld by the Court of Appeal,
all the 1250 petitions filed before the 37 tribunals in Nigeria from the 2007
elections would automatically be invalidated as well.
Thus it was the soccer equivalent of trying to
move the goal post after the match had started because his shots had gone over
the bar! Olanipekun proceeded to defend the Practice Directions and still within
that ambit counter him. Said the ex-NBA Chairman, they shot themselves “in both
feet.”
It will be interesting to know how many lawyers or
petitioner’s in the 1250 petitions before the courts committed offences against
the Evidence Act apart from Ahamba.
However one may view his attacks on the judges
after losing the case as the soccer equivalent of “if you miss the ball, aim for
the leg!” However it is the opponents leg not the referee’s that normal sadists
aim for.
An honest observer of what transpired in the
courts, much of which regrettably may not be adequately captured in the
judgment, would show that if counsel spent as much stamina scoring goals in the
football field (court of law) instead of scoring goals in the basketball pitch
(court of public opinion) maybe we would have a different outcome today. The
truth about a “soccer ball” and “evidence,” which the judgment more or less
said, is no matter how loud your supporters club is, or how imposing your coach,
it is only the ball that enters the net that counts as a goal.
Isha Ogebe is a Special Legal Consultant on
Nigeria |
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