… It’s a big error according to guiding rules – Lawyers
… I’m now former minister, can’t comment – Lai Mohammed
… Atiku’s camp upbeat
All respondents to the petition filed by the Peoples Democratic Party and its presidential candidate in the February 2019 presidential election, Alhaji Atiku Abubakar, challenging the declaration of President Muhammadu Buhari as winner, failed to file supporting documents in their defence, The Point’s investigations have revealed.
Sources close to the tribunal disclosed to our correspondent, at the weekend, that the respondents – the Independent National Electoral Commission, the All Progressives Congress and President Buhari – should have, at the point of submitting a response to the allegations, filed supporting documents, in accordance with the guiding rules of the tribunal.
“It will be interesting to see how they will defend the weighty allegations before them, when they’ve not provided documents. They may be playing into the hands of the opposition, unless they have other surprises wrapped up,” one of the sources, who asked not to be named, owing to the sensitivity of the issue, said.
The mood is currently upbeat in the camp of former Vice President Atiku Abubakar, ahead of the sitting of the Presidential Election Petitions Tribunal.
Both Atiku and President Buhari, the declared winner of the election and candidate of the APC, have already filed their petition and defence, respectively.
Lawyers have identified a big gap in the response of the ruling APC, following the discovery that Buhari’s APC, in filing its defence to the 139-page petition filed by Atiku and his running mate, Mr. Peter Obi, did not include any supporting document.
This development was further confirmed to The Point at the weekend by a leading counsel in the PDP legal team that is set to defend Atiku and the party.
The lawyer, a Senior Advocate of Nigeria, who would want his identity kept under wraps, said, “Buhari and the APC merely filed their defence to our petition without supporting documents, which is contrary to the electoral law, because we already have heaps of documents, which they have no counter-documents to challenge.
“But it is still left for the tribunal to determine if it would admit their defence without supporting documents or get it thrown out. But above all, we envisage enjoyable sessions for us, but we leave the tribunal to decide, relying on relevant laws.”
Corroborating Atiku’s lawyer, however, another legal practitioner, Barrister Kehinde Olaitan, simply shook his head in pity of what he considered a great omission by the APC legal team.
Olaitan, a Lagos lawyer, said, “If you are filing anything, you have to bring every available document. That has for long been introduced into the electoral law and it is no longer peculiar to the regular courts.
“That is how to avoid any surprise package from the plaintiff, and I am eagerly awaiting how a defendant in an election petition tribunal is going to succeed in his defence without supporting documents.”
Lai Mohammed, ex-Minister of Information
Olaitan, in referring to the electoral laws, may have in mind Section 145 of the Electoral Act 2010, which dwells on the rules of procedure in an election petition.
Under it, the law requires an election petition to be accompanied by: (a) A list of the witnesses that the petitioner intends to call in proof of the petition; (b) Written statements on oath of the witnesses; and (c) Copies or list of every document to be relied on at the hearing of the petition.
Under the rules, too, “a respondent’s reply or defence to a petition is to be accompanied by the documents listed above.”
But it notes, “Nonetheless, failure to file the petition with a list of witnesses would not be a ground for declaring the petition incompetent.”
The Assistant Secretary of the Epe, Lagos branch of the Nigerian Bar Association, Dotun Hassan, told our correspondent that the action of Buhari and the APC, regarding the petition, might be deliberate and could be the joker the respondents might want to use to pull the rug off the feet of the petitioners before the tribunal.
Hassan said: “The liberty of the respondent is to leverage on the matter laid before the court or Tribunal. So, the respondents are expected to make their submission with supporting evidence that will help their cases. We, however, have to be aware of the current situation that guides the Presidential Elections Tribunal. Ab initio, documents that are meant to be abused are delayed.
“We should not prejudice or try to predict the outcome of the court. Whatever we are trying to say is to clarify that each party is at liberty to position their interest before the court and that is what is going on. As I said, I don’t want to specifically speak on the Atiku and the APC case before the Tribunal, to avoid being prejudicial. The matter is already in the purview of the court; we cannot pre- empt the outcome, neither can we prejudice the position of the court.
“But there is a timeframe for replying the application before the court or Tribunal. At times, it is within 7 days, 14 days or even 21 days. That is in line with legal procedures. If the documents that are being relied upon by the petitioner is also what the respondents are going to use in backing their case up, maybe it is premeditated for them to hold on to their own proof of evidence, because letting out the cat from the bag may be injurious to their case.”
The NBA assistant secretary further noted, “The court will rely on the balance of probability and if the respondents fail to prove their case beyond reasonable doubt on the balance of probability, they will lose the case. In most cases, the same documents that the petitioners are supposed to rely on are the same the respondents are relying on. It is just a matter of compare and contrast. Forensic experts may be called to investigate and that may lead to a trial within trial.”
Speaking in the same vein, a prominent Abuja-based lawyer, who pleaded anonymity, said, “They have filed their defence; it is within the purview of their lawyers to know why they did that. But for me and some right thinking members of the society, or even in the legal parlance, there are some critical positions, which the petitioners have filed, which require supporting evidence.
“If the petitioners now respond to the respondents’ failure to back their submission with supporting documents, it may lead to delay and the case has a time limit. The petition, if delayed than necessary, may be struck out for being out of time.”
INEC Chairman: Professor Mahmood Yakubu
Efforts by our correspondent to get the reaction of the ruling APC to the development proved abortive as calls put to the phones of the party’s National Publicity Secretary, Mallam Lanre Issa-Onilu, did not go through. Also text messages sent to him were not replied.
Also, when contacted, the immediate past minister of information and culture, Alhaji Lai Mohammed, declined to comment, maintaining that he was no longer competent to speak for the party and the government.
Mohammed added that the party and its lawyers were in a better position to comment on the matter.
“As you know that I am now a former minister; I don’t have the capacity to comment on this matter. I will implore you to direct it to the party and its lawyers. They are in a better position to give a comment that you need. Please, bear with me,” he said.
The PDP and its presidential candidate, Alhaji Atiku Abubakar, had on Monday, March 18, 2019, filed an election petition at the Presidential Election Petition Tribunal in Abuja, praying it to declare Atiku as the winner of the February 23, 2019 presidential election.
The petitioners also prayed the tribunal to disqualify the APC presidential candidate, Muhammadu Buhari, the declared winner of the election, as unqualified.
Joined as respondents to the petition are the APC, President Muhammadu Buhari and INEC, listed as the 1st, 2nd and 3rd respondents, respectively.
The petitioners have asked the Tribunal for two major reliefs. One, a declaration that Alhaji Atiku Abubakar, the Presidential Candidate of the PDP for the February 23, 2019 presidential election, was the winner of that poll. Second, and alternatively, a declaratory relief that the February 23, 2019 presidential election was marred by widespread irregularities and should, therefore, be cancelled.
The party also prayed the tribunal for a declaration that President Buhari, who INEC declared the winner of the said election, was not qualified.
The petitioners have assembled over 400 witnesses to testify in favour of their petition during the trial.
