Court of Appeal
From Tobi Soniyi and Adebiyi Adedapo in Abuja
The Court of Appeal sitting in Abuja as the Presidential Election Tribunal yesterday dismissed an application by the Congress for Progressive Change (CPC) for judgment to be entered in its favour in the election petition it filed against the success of Dr. Goodluck Jonathan in the April presidential election.
CPC had based its application on the ground that the Independent National Electoral Commission (INEC) did not allow it to access the materials used for the presidential election.
Four justices of the court led by Justice Mohammed Garba unanimously held that CPC was not entitled to judgment in default of evidence.
In a ruling, which lasted about 45 minutes, Justice Garba held that the order of May 24, which directed INEC to grant CPC access to biometric data, did not mean taking copies but just to see it. He therefore resolved the first issue against the petitioner.
On the second issue of entering judgment in favour of the petitioner, the tribunal held that judgment could not be entered in default without hearing the evidence in the matter.
According to him, the court must hear the matter on its merit. He also resolved the second issue against the petitioner.
He said: “In the light of the above, petitioner’s application lacks merit and it is hereby dismissed. I make no order as to cost.”
The court adjourned till today for issuance of pre-hearing report.
CPC had filed an application asking the court to enter judgment in its favour by nullifying Jonathan’s election because INEC and the Peoples Democratic Party (PDP) would not allow it to access electoral materials needed to substantiate its case.
On August 29, a panel of four justices concluded hearing in the CPC application and adjourned to a date to be communicated to lawyers for ruling.
CPC is challenging the victory of Jonathan at the April general election.
The party had alleged that INEC frustrated its effort to inspect materials used for the election.
While arguing the application for judgment, CPC's counsel, Dipo Okpeseyi (SAN), argued that contrary to the order of the court directing the electoral body to grant them access to all the materials used for the presidential election, INEC had refused to do so, adding that such failure invariably showed that there was connivance between INEC and Jonathan.
He further stated that on such grounds, it showed that CPC won the presidential election.
Counsel to Jonathan, Dr. Alex Izinyon (SAN), however opposed the application, stating that granting CPC access to the Direct Data Capture (DDC) machines would compromise the privacy of voters; especially voters’ identities which he said were sacrosanct.
He added that what the petitioner was requesting would be a breach of section 125 (3) of the Electoral Act.
Counsel to PDP, Joe Gadzama (SAN), also opposed the application, arguing that Section 25 of the Electoral Act 2010 as amended and Sections 1 and 9 of the Official Secrets Act 1990 did not permit INEC to allow any person or authority to have information as to the pattern of voting or who a voter voted for during election.
He added that it was a criminal offence under Section 1 of the Official Secret Act and any staff of INEC who allowed such act to be done must be prosecuted.
He further argued that it was strange to Nigerian law for a petitioner to go to court and ask for judgment in default of evidence, adding that they (petitioners) have a duty to go to INEC to get all what they need and they have got up to 90 per cent of what they needed.
Responding to the ruling, counsel to CPC, Ismail Alasa, said the 2011 presidential election was marred by various forms of irregularities.
He said the petitioner would ascertain the fingerprints at each polling station against the votes recorded, alleging that some voters cast their votes where they did not register, and such votes, according to him, would have to be invalidated.
“The rigging took place at different levels. Some people voted where they are not supposed to have voted. So, a fingerprint appeared in a particular polling unit where it was not registered.
Of course it means that that vote is invalid. We are not saying we want to know the faces that did. We are just saying we want to know the fingerprints that belong to a particular polling unit,” he said.
He stated further that INEC was not showing the required cooperation for CPC to adequately prosecute the petition because the commission was reluctant to make electoral materials available to the party.
He said: “How I wish people had access to the minutes of the meeting we’ve held at the instance of INEC and other respondents; you would get to appreciate our position.
They are not cooperating at all. Even as we talk, they have not made any electoral material available to us, apart from the form EC8E which I paid for and it took more than three days to do certification of ordinary declaration of result by INEC. But they come here and give the impression that they are cooperating. It is so sad.”
Alasa however expressed optimism that with the cooperation of the respondents in the matter, CPC would be able to conclude its case within the two months period left.
Gadzama accused CPC of unwillingness to proceed with the case, as he said seeking access to biometric database would not deter the petitioner from inviting its witnesses.
He said: "Now we are left with two months, and we are yet to start hearing. So, now the counsel are expected to cooperate with the court probably by minimising the days they require or even reducing the number of witnesses.”
FORMER Information Minister, Prof. Jerry Gana, wants managers of Nigeria’s security system to redirect their attention and resources to intelligence-gathering.
He told journalists in Kano on Tuesday that the Federal and State Governments need to invest more in security. “We are not investing in that section because security is not just hardware, it is software. You have to gather intelligence to be ahead of all the problems threatening the security of the nation”, he said.
But Senator Olubunmi Adetumbi would be happy if the government does more to expose the financial backers of the Boko Haram group and also make them to face justice.
Adebumbi, who represents Ekiti-North Senatorial District in the Upper House on the platform of the Action Congress of Nigeria (ACN), said it is only President Goodluck Jonathan that can expose the sponsors of the group, who are behind the series of bombings in some parts of the country that his claim of having their dossiers can be substantiated.
Gana also urged the government to be fair and just to all Nigerians as he enjoined the aggrieved among the citizenry to explore dialogue rather than the use of force to seek redress.
He said: “The issue of security is a very vital matter, so vital that the Nigerian Constitution specifies clearly that the security and welfare of the people is the primary purpose of the government.
“No one should go to the extent of carrying arms or wounding the society because in the final analysis, it is the society that would be destroyed. No nation can survive if citizens instead of resolving matters will prefer to take up arms by force. I am appealing to all Nigerians that there is no society without grievances. On the side of the government, if there are grievances, the government should be humble enough to listen to the people and try to resolve them”.
Gana, who declined to comment on the activities of Boko Haram and the lingering problems in Jos, Plateau State, maintained that “not all problems can be resolved by the use of force. Some problems can be settled by understanding, by resolution and by being fair and ensuring justice”.
Speaking in Ado-Ekiti on Tuesday, Adetumbi declared that the bombing of the United Nations (UN) Building in Abuja on Friday, August 26, 2011, where 23 Nigerians and other nationals were killed and several others wounded, punctured the country’s pride as a peaceful nation and exposed it to international opprobrium.
He insisted that the President should take a decisive action against persons with questions to answer after the security agencies have concluded their investigations into the raging violence and bombings in the country.
THE Action Congress of Nigeria (ACN) yesterday linked the speedy disbandment of the Presidential Election Petition Tribunal constituted by Justice Ayo Salami to the real reason he was removed as the President of the Court of Appeal (PCA).
Also, a non-governmental organisation, Access to Justice (AJ), yesterday urged the National Judicial Council (NJC) to give legal reasons for suspending Justice Ayo Salami while his lawsuit was pending.
In a statement issued in Lagos yesterday by ACN’s National Publicity Secretary, Alhaji Lai Mohammed, the party said all other illegalities committed by the NJC and President Goodluck Jonathan in removing Justice Salami aside, it now seemed clear to everyone that he was actually eased out to pave the way for judges, whom those behind his removal perceived as ‘friendly,’ to sit on the tribunal.
‘’That Justice Dalhatu Adamu, Acting President of the PCA, quickly dismantled the panel, even as time is running out to hear the case filed by the CPC challenging the President’s election, seems to be a confirmation of the rumours making the rounds that President Jonathan was afraid that his election may be overturned by the old panel, hence he acceded to the illegal recommendation of the NJC to remove Justice Salami.
‘’Even if there is no sinister motive for the action by Justice Adamu in dispersing the judges sitting on the case, which is possible, his hasty action - at a time the controversy over the way Justice Salami was removed is at its peak - is enough reason to sow the seeds of doubt over his action,’’ it said.
According to the ACN, the disbandment of the election petition panel now makes it difficult for anyone to believe that enlightened self-interest is not the reason the President ignored the constitution in aligning with the recommendation of the NJC on Justice Salami.
The party said if the removal of Justice Salami and the disbanding of the tribunal was considered along with the fact that President Jonathan is a party to the pending case before it (tribunal), it seemed more evident than ever that the President failed to abide by the Code of Conduct for Public Officers, as contained in the Fifth Schedule to the Constitution.
‘’Paragraph 1 of the Code states: ‘(a) public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.’
‘’This is one more reason why the President must reverse his action on the Justice Salami case today. Otherwise he would expose himself to the accusation - and rightly so - that he allowed his personal interest to dictate his conduct as the President of the Federal Republic of Nigeria,’’ ACN said.
According to the AJ in a statement by its Executive Director, Joseph Otteh, the NJC at this time “should rather acknowledge its sad errors, and back down from the wanton impunity it showed towards a duly constituted court and the entire Nigerian nation when it took the decision to suspend Hon. Justice Salami.
“The NJC joined issues with many of its critics on a number of technical grounds, but deliberately avoided the main issue. The core objection to the actions of the NJC is: Why did the council not await the resolution of the legality of its indictment of Hon. Justice Salami - which was now in court - before proceeding to take the decision it did to suspend him? On this issue, the NJC’s statement is remarkably quiet and subdued, saying only that: ‘Council took its decision based on the powers conferred on it by the 1999 Constitution.’ And then added: ‘The court will decide on that.”
“The NJC acted, with due respect to that body, with impunity and suspicious haste on the Hon. Justice Salami case, and it is lame for the council to just say that the court will decide on the legality of its undue, unruly haste. The NJC should explain the basis of its actions and the rules which support its implacable rush to judgment in the same manner those who criticised its decisions have done in citing rules and decisions of courts on the basis of which they attack the NJC decision.”
Access to Justice asked the NJC to supply the legal basis of its actions and let the public understand and evaluate it.
It said : “The NJC’s present argument is analogous to a governor authorising the execution of a man while his appeal is pending, and then saying we should await the court’s decision on the legality of its actions.
“It is unfortunate that the NJC under a new chairman is still acting with unrepentant disdain for the rule of law, and continuing efforts to consolidate a completely embarrassing and flawed position rather than reverse it. In doing this, Chief Justice Musdapher has faltered and taken an ill-advised first step, and this outburst from the council will further inflame public tempers than ease them. It is worthy of note that the NJC’s position has been lampooned by virtually every constituency in Nigeria, including the Bar Association and it is only the council that refuses to see the perversity of its actions in this regard.
“The NJC says it is constantly being sued by those affected by its decisions. Yet it refuses to cite a single case where, as in Justice Salami’s case, an action was pending against whilst it deliberated and took a decision on the subject of the action. On the contrary, the council had, since its establishment and until this time, (that is, until the Justice Salami case) abided by a respected tradition of not dealing with any matter covered by a pending lawsuit. Yet, Mr. Odukwu’s statement made no reference to this in his statement. We can cite at least three instances when the NJC declined to take any action on matters brought before it, including deliberating on those matters because there were lawsuits over their subject-matters.
South-west Can't Reclaim House Speakership, Says Baraje
Hon. Aminu Tambuwal
From Hammed Shittu in Ilorin
Leadership of the ruling Peoples Democratic Party (PDP) may have foreclosed any move by the members of the party in the South-west to reclaim the position of the Speaker of the House of Representatives, currently occupied by Hon. Aminu Tambuwal.
Indication to this effect emerged at the weekend, in Ilorin, Kwara State, when the Acting National Chairman of the party, Alhaji Abubakar Kawu Baraje, said the leadership of the party has zoned the position of the Leader of the House to members of the party in the South-west geo-political zone.
Baraje, who disclosed this at a news conference shortly after hosting his secondary school mates of 1971 to 72 set at the 1lorin Teachers College, added that the right candidate for the job would be announced as soon as the National Assembly resumed from vacation.
It would be recalled that former President Olusegun Obasanjo, who is also the chairman of the Board of Trustees (BoT) of the party, at the strategic zonal meeting of the party, held in Abeokuta, Ogun State on Saturday, reiterated that the zone would still reclaim the Speakership position of the House, osaying the loss of the position was distasteful.
Obasanjo said the: “Speaker of the House of Representatives, which the constitution of the party zoned to the South-west is our legitimate right which must be given back to us.”
However, Baraje said since the election of Tambuwal was the endorsement of the members of the House of Representatives, including the PDP members, the party was not going to punish or sanction any member for the action.
According to him: “There is nothing like compensation for South-west for losing out in the Speakership election and that the PDP is being administered by zoning but the position of Leader of the House had been zoned to South-west now.”
He said the House would actualise the position for the South-west zone immediately members resumed from vacation.
Baraje, who described the events and circumstances, which led to Tambuwal’s emergence on June 6, as an aberration to the instruction and tradition of the party, however, said the party had warned that the party would never entertain such “difference” again.
While stating further that, the party has ruled out the possibility of disciplining or sanctioning any member over the emergence of Tambuwal, stated that the leadership of the party was against the reported recommendation of the six-man committee of the BoT of the party, which recommended punishment for the PDP lawmakers for disobeying the party’s directive to vote against a South-west choice in the House.
The PDP chairman said the BoT of the party was only an advisory body, adding that the party’s executive was only at its liberty to either take or reject the BoT advices.
“I want to say categorically that there's no committee to discipline anybody by the party. There were comments about the behaviour of lawmakers on June 6 in the National Assembly by the BOT members, particularly by the BOT chairman, Olisegun Obasanjo. The party’s constitution says that BOT is an advisory body of the party. The party has the leverage to either take or reject the advice given.
“If the BOT is holding discussion relating to that singular instance and they are reacting in any way, it's strictly within the BOT and has not got to the party,” he said.
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