Tribunal: Petitioners’ evidence worthless, witnesses’ testimonies amoebic in nature — Tinubu’s lawyer

The president, Bola Tinubu and the Vice-president, Kassim Shettima has discredited the case made by the Labour Party and its presidential candidate, Peter Obi against the outcome of the February 25 presidential elections describing their arguments and witnesses’ testimonies as worthless.

The duo made the averments through their legal team led by Wole Olanipekun, SAN, in their final written address against the petition of Obi before the Presidential Election Petition Court.

Dismissing the petition as frivolous, the respondents poked holes in the testimonies of the various witnesses and asked the court to dismiss their testimonies as they were bogus and based on hearsay.

Recall that on March 1, INEC’s Chairman Professor Mahmood Yakubu announced Tinubu as the winner of the February 25 elections with 8,794,726 votes while Atiku Abubakar and Peter Obi of the Labour Party were said to have scored 6,984,520 votes and 6,101,533 votes, respectively.

On March 20, Obi and LP filed a petition before the court seeking the nullification of the elections on grounds of non-qualification of the president, non-compliance with the Electoral Act, among others.

The petitioners through their team of lawyers led by Livy Uzoukwu SAN alleged that Tinubu should be disqualified from the election over a United District Court judgement and forfeiture of 460,000 US dollars suspected to be proceeds of drug trafficking.

They also alleged that Kassim Shettima was doubly nominated as the vice presidential candidate to Tinubu when he was still a senatorial candidate for the Borno Central Constituency at the time their party – The All Progressives Congress held its presidential primary election in July 2022.

It was reported that in aid of its petition, before the PEPC adjourned for adoption of the written addresses by the parties, Obi had produced thirteen witnesses including a cloud engineer, INEC ad-hoc staff, a cyber security expert and a professor of Mathematics while Tinubu’s team had produced one-star witness, Senator Michael Opeyemi to debunk Obi’s submissions.

The court had given the petitioners and the respondents ten and seven days to file their written addresses and five days for the respondents to reply on points of law.

In the written address sighted by the PUNCH and dated July 14, the 2nd and 3rd respondents led by Olanikpekun, SAN, faulted the claims of Obi’s witnesses including the seventh witness, Clarita Ogah who had claimed to be a cloud engineer and a member of staff at Amazon.

Olanikpekun added that though the witness wanted to demonstrate to the court that the Amazon Web Server which hosted the INEC Results Viewing portal was healthy and could not have suffered technical glitches on the election day as alleged by the electoral commission, she, instead buttressed the point that INEC site indeed suffered glitches.

The advocate emphasized how she failed to validate her claims on the status of AWS as “healthy” and how she affirmed INEC’s claims of glitches during the elections.

He stated that the witness admitted among others to the possibility of glitches, and network failures while she attempted to use the INEC site.

He said, “The interesting thing about her political involvement, however, is that, in her quest to secure the admission and publication of her name by INEC for the National Assembly election, she had averred before the Federal High Court that she made several efforts to upload her name on the INEC network site, but because of network failure, her efforts proved abortive, as the INEC site crashed-this she wholly admitted under cross-examination.”

“This evidence corroborates the respondents’ case of a technological glitch on the day of the election and flattens the petitioners’ insinuation of the impregnability of any of the technological components.”

“More so, this witness admitted the several incidents of glitches and outages on the AWS sites (including the fact that as at 2021, the AWS has had over 27 episodes of outages), while identifying that if these could happen in 2021 and time past, they could happen anytime, as according to her, “anything is possible.” This admission by her, evaporates the entire suggestion by her, that the AWS server was beyond any form of reproach.”

“Meanwhile, the reports supposedly tendered by this witness were admittedly merely downloaded on the website of AWS. Therefore, the witness was not the maker of the same and could in fact, not have validly withstood cross-examination in relation to the said document.”

“These documents which were eventually admitted and marked as Exhibits PCJ3 (A-F) and PCJ4, however, did not indicate any key to assist this Honourable Court in identifying the connotations of the various characters on the purported reports. Without mincing words, the evidence of this witness, including the purported reports are worthless, meaningless, of no value whatsoever and fit only for the trashcan.”

“The witness also admitted to the various unpredictability and imperfection of technological devices, including his telephone, generator and even power supply in Nigeria. This buttresses the point that the BVAS, being a technological device, could be subject to any of these vagaries.

Tinubu further said, Obi failed to prove how the non-transmission of results in real time amounted to non-compliance or how it affected the outcome of the elections.

Dismissing her credibility as a staff of Amazon, he argued that the witness did not prove her connection with AWS as the documents which she attempted to employ as proof were unsigned affecting “the relevance and even admissibility of the documents.”

“She was unable to properly identify herself as a staff of AWS, and this Honourable Court ought to discountenance the entire evidence of this witness on this basis.”

“In any event, the witness admitted that though the report she tendered relates only to AWS infrastructure, the subpoena she brought before the court was not delivered to Amazon but to her in person and that she was not in court on the authority of AWS. On this account, we submit that the evidence of this witness cannot be treated as the evidence of AWS or taken with any seriousness at all.”

“The predicament of PW7 and indeed the petitioners did not end there, this supposed witness was unable to present her letter of employment by AWS as the supposed unsigned letter of confirmation of employment was only manufactured by her, on 19th June 2023 (as per the date on the document), a day before the tendering of same, indicating that this document was made by a party interested, during the pendency of litigation, for the mere purpose of litigation, thus, rendering same inadmissible.”

Asides from that, the senior advocate questioned the witnesses’ objectivity describing her as an interested party and a card-carrying member of the LP, “who in fact, contested election to become a member of the House of Representatives, representing Cross River State, under the banner of the 2nd petitioner, where she lost the election.”

Describing the testimonies of the various witnesses as amoebic in nature, Olanikpekun, SAN stated that the petitioner’s claim that there was no transmission and upload through the BVAS are inconsistent as the same in the other breadth claimed that the transmission and upload through the BVAS, they actually won the election.

Moreso, he contended that it was not the petitioners’ case that there was no electronic transmission and upload at all, but that the transmission was not done immediately. He said, “Even more critical is the fact that the petitioners did not allege that any of the other procedures of the election, starting from the accreditation, voting, sorting, counting of votes, entry into the relevant forms, and manual transmission was not complied with.”

“In fact, the testimonies of PW9, PW10 and PW13 are very instructive, as despite being witnesses for the petitioners, they all testified to the fact that the only issue with the entire web of processes was that of electronic transmission and upload to the IREV through the BVAS in real-time.”

“The point must be made that it is not their claim that the results were not uploaded at all, but that since INEC was constrained not to be able to upload it immediately, during the election, then the election must be impeached.”

He said the petitioners failed woefully to discharge the burden and obligation of proof binding on him on how the election was rigged against him.

“Hence, assuming without conceding that the non-transmission through electronic means, is at all, a non-compliance, the obligation of the petitioners would still remain to answer the question, ‘How then has the non-transmission affected the result of the election?”

He added that it was wrong for the petitioners to hinge their grouse on the electronic transmission of votes when INEC’s electoral laws also contemplated manual transfer of votes as an option.

He said, that Obi’s petition did not talk about “ballot box snatching, ballot box stuffing, violence, thuggery, vote buying, voters’ intimidation, disenfranchisement, interference by the military or the police, and such other electoral vices but that “the crux of their grouse… is that while the presidential election was peacefully conducted all over the country (as corroborated by their primary witnesses) and the results accurately recorded in the various Form EC8As, some unidentified results were not uploaded electronically to the INEC Election Result Viewing (IREV) Portal.”

Furthermore, Tinubu’s lawyer argued that the “remote” contention of the petitioners that his client’s election should also be canceled for not scoring 25% or one-quarter of the votes recorded in the Federal capital territory is not backed by any fact known to the law as the use of “and” in the constitution is conjunctive and not disjunctive. He argued that the FCT, according to the constitution, is regarded as one of the states adding that there is no superiority ascribed to voters in the FCT.

He contended that the FCT question should also be interpreted with Section 299 of the 1999 constitution which states that “The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.”

“May we draw the attention of the court to the fact that there is no punctuation (comma) in the entire section 134(2)(b) of the Constitution, particularly, immediately after the ‘States’ and the succeeding ‘and’ connecting the Federal Capital Territory with the States. In essence, the reading of the subsection has to be conjunctive and not disjunctive, as the Constitution clearly makes it so. Pressed further, by this constitutional imperative, the FCT is taken ‘as if’ it is the 37th State, under and by virtue of section 299 of the Constitution.”

“With much respect, any other interpretation different from this will lead to absurdity, chaos, anarchy and alteration of the very intention of the legislature. Our courts have always adopted the purposeful approach to the interpretation of our Constitution, as exemplified in a host of decisions.”

On the issue of non-qualification of the president based on the purported US forfeiture proceedings, Tinubu’s counsel argued that the petitioners through their witnesses were unable to point to a single mention of the word “fine” in any of the documents forming part of the proceedings tendered as Exhibit.

He maintained that in the absence of admittance that the judgement had been registered in Nigeria in line with the provisions of section 3 of the Reciprocal Enforcement of Foreign Judgments Ordinance and Foreign Judgment (Reciprocal Enforcement) Act.

He said the essence of the registration is that the Nigerian court must satisfy itself within the laws of Nigeria.

“Upon registration, it becomes a Nigerian judgment by virtue of the order for registration, and can then be enforced, relied upon, or put in use.”

“Not only that, both witnesses could not provide any “certificate purporting to be given under the hand of a police officer” from the US, “containing a copy of the sentence or order and the fingerprints of the [2nd respondent] or photographs of the fingerprints of the [said 2nd respondent]…”

Besides, he added that assuming without conceding to a remote connection with criminal forfeiture, he maintained that “section 137 (1) (e) of the Constitution gives an expiration period of a maximum of 10 years for the subsistence of that conviction and sentence, after which the convict could contest an election to the office of President of Nigeria.”

“Be it noted that the said section talks of conviction and sentence, a situation which is graver and more potent than a purported civil forfeiture in a foreign land. In effect, within the Nigerian law, Exhibit PA5, purportedly delivered in 1993, 30 years back, has become effluxed by virtue of the constitutional provision.”

“Not done yet, and in order not to leave anyone in doubt that he has no criminal record in the US at all, he respondents tendered Exhibits RA13-RA16, all to the effect that throughout all these past years, the 2nd respondent has always enjoyed rights of ingress and egress to and from the US, a right which anyone who is burdened by a criminal forfeiture cannot enjoy.”

He also maintained that forfeiture of monies traced to the bank account of Bola Tinubu was a civil proceeding and the president was not convicted.

He maintained that Obi’s name was not in the Labour Party membership register when he contested the poll, adding he was still part of the PDP.

The respondents in their relief urged the court to declare that “Obi is constitutionally barred from participating in any election, in the very unlikely event that the election of 25th February, 2023 is voided, as the only candidates constitutionally prescribed to contest any subsequent election shall be Tinubu and the candidate of the PDP, Atiku Abubakar who came second, by scoring the next majority of votes in the highest number of States (19 States), to the 1st petitioner’s 16 States, and also coming second by plurality of votes, having scored 6,984,520, far and above 1st petitioner’s 6,101,533 votes.”