Mebrim Uchechukwu
9 December 2011
Abuja — Hearing in the appeal brought by the Congress for Progressive Change (CPC) challenging the judgment of the Presidential Tribunal which upheld the victory of President Goodluck Jonathan in the April general election could not go on at the Supreme Court as earlier slated due to the non constitution of the panel that will hear the matter.
When the matter was called up yesterday, a panel of five justices headed by Justice Mahmud Mohammed told the court before counsel could announce their appearances that the matter will not hold due to the fact that the panel to sit on the matter has not been constituted by the Chief Justice of Nigeria (CJN).
Apart from apologizing to the parties in the matter, he said that the CJN was not around and as soon as he comes back, the panel will be set up and a new a date will be communicated to the parties.
CPC’s lawyer, Dipo Okpeseyi urged the court to be mindful of the 60 days which the Electoral Act has provided for the hearing and determination of the appeal so that the party would not be caught outside the specified days.
Responding, Justice Mahmud said the court will take note and will do all within its reach to ensure that the appeal is heard and determined before the expiry of the 60 days.
The CPC had on November 11 filed notice of appeal at the Registry of the Court of Appeal, while on November 28 filed its appellant brief of argument where it argued that, the trial tribunal erred in law when it rejected documents required to prove multiple thumb printing, non-distribution of electoral materials, not ascertaining the actual number of required voters, the accredited number of voters and the actual number of voters that had voted in the disputed election.
The party therefore asking the Apex court to make an order directing the President of the Court of Appeal to direct another panel to entertain and determine the petition by way of a retrial adding that the justices erred in law when they lumped together evidence of respondents’ witnesses, who they acknowledged as different sets of respondents and thereby occasioned miscarriage of justice.
They said the panel of justices misdirected themselves when they held that the mere assertion of the petitioner that the election was flawed would not shift the burden of disproving the assertions on the respondents and that the onus lied on the appellant to prove non-compliance.
It would be recalled that the Presidential Election Petitions Tribunal on November 1 held that the election was free and fair and dismissed CPC’s petition in its entirety for lacking both merit and substance.
The tribunal, in a unanimous judgment held that President Jonathan was validly elected having secured two thirds (22, 471, 370) of the lawful votes cast during the election.
The chairman of the panel, Justice K.B Akaahs had said CPC failed to discharge its burden of proof even on the balance of probability adding that the party did not prove that non compliance with the provisions of the Electoral Act affected the election result in any way.
CPC had in its petition sought a declaration that President Jonathan and his Vice were not duly elected in Kaduna, Sokoto, Nasarawa, Kwara, Adamawa, Abia, Akwa Ibom, Enugu, Cross River, Rivers, Ebonyi, Bayelsa, Delta, Imo, Anambra, Benue, Lagos, Plateau and the FCT.
The party asked the tribunal to hold that the results declared by INEC on April 18 by which President Jonathan returned to power, is wrongful and unlawful.
They similarly sought a declaration that the election did not produce a winner as contemplated by the provisions of the 1999 constitution. They asked the tribunal to order INEC to organize fresh elections between its candidate, retired General Muhammadu Buhari and the President.
But the tribunal, in its judgment said CPC failed to prove that President Jonathan’s victory was based on corruption, and that the party had nothing on which to consider the challenge of the votes secured by the President and his vice.
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