The president of the Court of Appeal, Justice Zainab Bulkachuwa, on Wednesday, disqualified herself from presiding over petitions challenging the outcome of the February 23 presidential election.
Her withdrawal followed a motion the Peoples Democratic Party, PDP, and its presidential candidate, Alhaji Atiku Abubakar, filed to challenge her decision preside over the five-member panel tribunal that is hearing petitions seeking to invalidate the re-election of President Muhammadu Buhari.
PDP and Atiku had insisted that Justice Bulkachuwa’s involvement in the Presidential Election Petition Tribunal was prejudicial to its case against Buhari, since her husband and son, are card-carrying members of the ruling All Progressive Congress, APC, which it cited as the 3rd Respondent in the petition.
Meanwhile, at the resumed proceeding on the matter on Wednesday, Justice Bulkachuwa, after over six hours stand-down, finally announced her decision to step-aside from the case.
She took the decision shortly after four other members of the panel, in a lead ruling that was delivered by Justice Peter Ige, held that the PDP and Atiku, failed to establish that she had in any way, exhibited any form of bias in the proceeding.
Justice Ige noted that the main crux of the petitioners allegation was not that Justice Bulkachuwa had not been objective in the case, but only that there was tendency that she would biased against them in view of her family tie with her husband and son who happened to be members of the APC.
He held that the petitioners failed to prove that the panel was constituted in a way that its independence could not be guaranteed.
Justice Ige further held that the petitioners drew wrong inference from a speech Justice Bulkachuwa delivered at the inaugural sitting of the tribunal on May 8.
“I am of the firm view that enough material have not been placed before this court to show that the presiding Justice is likely to be biased in the hearing of the petition”, Justice Ige held, saying four exhibits the PDP adduced before the tribunal was not weighty enough to input any likelihood of bias”.
He held that neither Justice Bulkachuwa’s husband nor his son were parties to the petition, adding that the essence of constituting a five-man panel to hear the case was to guarantee fairness and justice, notwithstanding the fact that the law permitted at least three Justices to entertain the case.
“I am of the view that the petitioners have not been able to particularly establish the need for the presiding Justice to recuse herself from further participation.
“Consequently, the petitioners’ application fails and is hereby dismissed. There will be no order as to cost”, Justice Ige held.
Other members of the panel that concurred with the ruling were Justices Abdul Aboki, Samuel Oseji andJoseph Ikyeghn.
Meanwhile, shortly after the lead ruling, Justice Bulkachuwa, said she was minded to hands-off the case on personal grounds.
She said: “For personal reason I will be recusing myself now. I insisted that the matter be tried fully so that next time, another female judge will not face what I faced.
“I am withdrawing. A new chairman will be appointed in due course. Meanwhile, the four member panel will be continuing with hearing of any pending application”.
However, the Civil Society Legislative Advocacy Centre, CISLAC, and Women In Nigeria, WIN, promptly condemned President Bulkachuwa’s withdrawal, insisting that the allegation against her was anchored on “baseless political reason and unjustified ground”.
CISLAC and WIN, in a statement, said they were seriously concerned about the continued marginalization, unchecked discrimination and abuse of women despite existence of the ratified protocol, National Gender Policy, Violence Against Women Prohibition Act, Gender and Affirmative Action and Constitution of the Federal Republic of Nigeria which guarantee comprehensive rights to women, including the right to adequately engage in the political process, socio-economic space, health, justice system in both public and private spheres.
The development came on a day President Buhari told the tribunal that he was not aware that biological son of the President of the Court of Appeal, Justice Zainab Bulkachuwa, Aliyu Haidar Abubakar, campaigned for his re-election.
Buhari, said he only got to know that Abubakar was his supporter, after he read a copy of the motion the Peoples Democratic Party, PDP, and its presidential candidate, Alhaji Atiku Abubakar, filed to disqualify Justice Bulkachuwa from presiding over the five-man panel tribunal that is hearing petitions challenging the declaration that he won the February 23 presidential election.
President Buhari, who is the 2nd Respondent in Atiku’s petition marked
CA/PEPT/02/19, said his attention was further drawn to exhibits that contained newspaper cuttings, indicating that Justice Bulkachuwa’s son canvassed for votes in his favour.
Nevertheless, in a written address he filed in support of an 11-paragraphed affidavit he lodged to counter Atiku’s motion, President Buhari, insisted that the petitioners, failed to prove that Justice Bulkachuwa had in any way, exhibited any form of bias against them, since the petition was entered before the tribunal.
The counter affidavit was deposed to by one Kolawole Andrew Aro, a litigation officer in the chambers of President Buhari’s lead counsel, Chief Wole Olanipekun, SAN.
In the written address, President Buhari, who was represented at the tribunal on Wednesday by a team of lawyers led by seven Senior Advocates of Nigeria, SANs, said he had since his emergence to power, refrained from dabbling into the membership of any judicial panel.
He said he never interfered with the constitution of any tribunal, “whether the panel is adjudicating on election petitions relating to the office of President, Governor, National or State Assembly, or sitting in any civil or criminal matter howsoever”.
President Buhari said he had no power whatsoever to decide those to be appointed into any judicial panel or tribunal, stressing that such interference would amount to a gross abuse of the principle of separation of powers.
He said he was aware that Justice Bulkachuwa had at the inaugural sitting of the presidential election petition tribunal on May 8, assured all the parties that in dealing with the petitions, the court, would be guided by the constitution, the law and international best practices.
Consequently, he maintained that Atiku and the PDP, had no reason whatsoever to be apprehensive about the involvement of the Court of Appeal President in the adjudication of their dispute with regards to the outcome of the 2019 presidential election.
He said: “Having said that, and bearing in mind the sole issue distilled for determination by the respondent supra, it is the Respondent’s humble submission that whether or not the honourable President of the Court of Appeal should recuse herself from further sitting or participating in the proceedings in this petition and be replaced by another justice of this honourable court to sit in his place to hear and determine petition, as prayed by the petitioners, is within the prerogative and discretion of the honourable President of the Court of Appeal.
“What is to be taken into consideration in coming to one decision or the other in respect of the application is also within the exclusive discretion of the honourable President.
“This is not a decision that can be dictated to her by either the petitioners or respondent or any of their counsel.
“When it comes to matter of discretion, the judge or justice involved is the sole determinant.
“The honourable President of the Court of Appeal had not displayed any bias in favour of any or the parties, particularly the Respondent.
“For the respondent, it has no reason whatsoever to complain about any of the justices sitting on the panel or any Justices of Court of Appeal for that matter.
“It is not the constitutional responsibility of the Respondent to appoint or nominate Justices of the Court of Appeal sitting or adjudicating on a presidential election petition.
“We submit that the Respondent has no say, in whatsoever manner, in the appointment or Justices who are adjudicating on the present presidential election petition.
“As the Chief Executive of Nigeria, the Respondent respects the doctrine of separation of powers and does not dabble into the membership of any judicial panel, whether the panel is adjudicating on election petitions relating to the office of President, Governor, National or State Assembly, or sitting in any civil or criminal matter howsoever.
“The Respondent was not at any time privy to the said exhibits, he only became aware of them on being served with the Petitioners’ present application”.
“May we submit that from the totality of the Petitioners’ processes, we notice that the Petitioners do not deny the truism as provided by the constitution, regarding the prerogative of the President of the Court of Appeal, to constitute this panel.
“In other words, it is still within the constitutional prerogative of the same President to either decided whether to recuse herself and if he does, to nominate or appoint a replacement or to leave the panel of four, having regard to the clear provision of section 239(1) (a) of the Constitution”, President Buhari added.
On its part, the Independent National Electoral Commission, INEC, which is the 1st Respondent in the matter, through its team of lawyers comprising five SANs led by Mr. Yunuz Uztaz, urged the tribunal to dismiss Atiku and PDP’s motion, contending that it was in breach of section 42 of the 1999 Constitution, as amended.
INEC, argued that the motion was discriminatory in the sense that it sought to disqualify Justice Bulkachuwa on the basis that she was married to a politician.
Noting that many male judicial officers are equally married to politicians, INEC, maintained that granting the instant application would set ” a very dangerous precedent”.
“My lord we vehemently oppose the application. And we have filed a five-paragraphed affidavit to show that exhbit 2 to 4 that was attached my the petitioners, is of no moment.
“We urge your lordship not to be lured into accepting or succumbing to the argument of the petitioners. We humbly urge your lordship to dismiss the application”, INEC’s lawyer added.
Similarly, the All Progressives Congress, APC, through its team of nine SANs, led by Prince Lateef Fagbemi, accused the PDP and Atiku of engaging in “cheap blackmail”.
While adopting its 15-paragraphed affidavit, the APC, said it was appalled that PDP was in the habit of engaging in “unpardonable and regrettable attacks” on Judges, saying it did so during a governorship election petition case that involved Osun State.
“This application is nothing but cheap blackmail. On facts and law, the application is most unmeritorious”, Fagbemi argued.
Nevertheless, noting that Justice Bulkachuwa will retire by next year, Fagbemi, while concluding his argument, said, “My lord, we urge you to leave the matter”.
Meanwhile, replying on point of law, counsel to the petitioners, Dr. Uzuokwu, SAN, argued that none of the Respondents disputed the allegation that Justice Bulkachuwa was connected to key members of the APC which is the 3rd Respondent in the matter.
After it had heard all the parties, the panel said it would reconvene by 2pm to deliver its ruling, but did not resume until around 5:30pm.
It will be recalled that PDP and Atiku had on May 15, secured leave of the tribunal to filed a formal application to ask Justice Bulkachuwa to recuse herself from the panel.
In a 19-paragraphed affidavit to subsequently filed, the petitioners, said they were not comfortable that Justice Bulkachuwa, who they described as “a wife and mother of card carrying members of the All Progressives Congress”, nominated herself to head the panel.
The petitioners argued that there are over 80 Justices in the Court of Appeal that could effectively head the panel.
PDP noted that Justice Bulkachuwa had at the inaugural session of the tribunal, while delivering her inaugural speech, stated as follows:
“Elections are held in Nigeria every four years into elective positions. No matter how well the election is conducted there are bound to be complaints…”
According to the petitioners, by making that remark, it would appear that Justice Bulkachuwa had already prejudged the Presidential election as well conducted and that the petition is one of the complaints that come up “no matter how well the election is conducted”.
More so, in the affidavit that was deposed to by its Deputy National Secretary, Mr. Agbo, the petitioners averred: “I know that Honourable Justice Zainab Adamu Bulkachuwa (PCA) who currently presides over the Panel baring the Petitioners/Applicants’ Petition is the spouse of Honourable Adamu Muhammed Bulkachuwa, a stakeholder in the 3rd Respondent.
“Honourable Adamu Muhammed Bulkachuwa, the husband of Honourable Justice Zainab Adamu Bulkachuwa is a Senator-elect sponsored by the All Progressives Congress (APC), the 3rd Respondent in the extant Petition, for Bauchi North Senatorial District, Bauchi State.
“The election challenged in the Petition, that is the subject matter of this application held simultaneously in Bauchi North Senatorial District with the election of Honourable Adamu Muhammed Bulkachuwa, both on the platform of the 3rs Respondent.
“I know that in the said Petition, Bauchi State is one of the focal States in which the Petitioners/Applicants have alleged that electoral infractions occurred.
“Honourable Adamu Muhammed Bulkachuwa is not only a card carrying member of the 3rd Respondent and a Senator-elect under the sponsorship of the 3rd Respondent, he is also a staunch member and prominent stakeholder in
the 3rd Respondent and has a stake in the election of the 2nd Respondent as President, having extensively campaigned for the 2nd Respondent.
“I know that as a spouse of Honourable Adamu Muhammed Bulkachuwa, the Honourable Justice Zainab Adamu Bulkachuwa is so closely related to Honourable Adamu Muhammed Bulkachuwa that she cannot fairly hear and determine the instant Petition without eliciting the suspicion and anxiety of all right thinking persons, including myself.
“The Court of Appeal has more than eighty (80) Justices who are able and competent to participate in the hearing and determination of the extant Petition in the absence of Honourable Justice Zainab Adamu Bulkachuwa (PCA).
“I also know that her biological son, Aliyu Haidar Abubakar is a card carrying member of the 3rd Respondent and he contested the gubernatorial primary election of the 3rd Respondent in the just concluded general election in Gombe State.
“Attached hereto and marked Exhibit 2 is a printout made today from the Facebook page named Aliyu Haidar Abubakar Volunteer Group containing his campaign posters, photographs and various posts showing his campaign messages for himself and the 2nd Respondent, both of whom contested on the platform of the 3rd Respondent.
“I also attach hereto and marked Exhibit 3 a print out of a Daily Post online news publication in which Aliyu Haidar Abubakar was prominently featured as the son of Honourable Justice Zainab Bulkachuwa and who contested the governorship primaries of Gombe State on the platform ofthe 3rd Respondent. (Sechttps://dailypost.ng/2018/09/16/gombe-2019-justicebulkachuwas-son-joins-race-succeed-dankwambo/ampl)
“On 27th October 20 l 8, the Daily Post online news also published reports that the 3rd Respondent had given its Senatorial ticket to Honourable Adamu Muhammad Bulkachuwa to curry favour with his wife, Honourable Justice Zainab Bulkachuwa, whose court would handle election petition cases arising from primary elections.
“Attached hereto and marked Exhibit 4 is a print out of the said publication. (Seehttpszl/dailypostmg/ZOI8/]0/27/apcbauchi-stalwarts-claim-oshiomhole-gave-tuggars-ticket-appeal-courtpresidents-husband-bulkachuwa-documents/)
“I was present at the inaugural sitting of the Panel on 8/5/20l9 when the Honourable Justice Zainab Adamu Bulkachuwa (PCA) as the Presiding Justice, made the following statements;
“Elections are held in Nigeria every four years Into elective positions. No matter how well the election is conducted there are bound to be complaints…”
“Justice demands that Judges who will sit in the Panel of Tribunal be divested from all forms of bias.”
“I was in the Court of Appeal, Abuja, on 15/5/2019 and when the Court sat and the Honourable Justice Zainab Adamu Bulkachuwa (PCA) led a Panel of five (5) Justices to hear the Petition.
“On that day, shortly after the matter was called, the Lead Counsel for the Petitioners/Applicants applied that Lead Counsel for all Parties be allowed to meet with the Justices in Chambers, to discuss an issue, which application was granted.
“When their Lordships and Counsel came out of chambers, the Presiding Justice addressed the Counsel and stated that he had earlier received a letter from the 2nd Petitioner/Applicant asking that he recuse himself from this Petition.
“His Lordship, Honourable Justice Bulkachuwa also said the Petitioners’ Counsel had, in chambers, made a similar application but that since the matter was already in the public domain, the Justices had decided that the application be made in open court.
“His Lordship, Hon. Justice Zainab Adamu Bulkachuwa then invited the Petitioners’ Lead Counsel to make an oral application for her to recuse herself.
“However, the Lead Counsel to the Petitioners/Applicants applied to the Honourable Court that the Petitioners/Applicants be allowed to file a formal application, which application the Court granted.
“I make this oath conscientiously believing the contents to be true and correct and in accordance with the Oaths Act”, it read.
Both PDP and Atiku are challenging the declaration the Independent National Electoral Commission, INEC, made on February 27 that President Buhari garnered a total of 15,191,847 votes to defeat Atiku who it said polled a total of 11,262,978 votes in the disputed presidential election.
Dissatisfied with the result, Atiku had vowed to upturn it in court.
In their joint petition, Atiku and his party, insisted that data they secured from INEC’s server, revealed that they clearly defeated President Buhari with over 1.6million votes.
The petitioners alleged that INEC had at various stages of the presidential election, unlawful allocated votes to President Buhari, saying they would adduce oral and documentary evidence to show that result of the election as announced by the electoral body, did not represent the lawful valid votes cast
Atiku alleged that in some states, INEC, deducted lawful votes that accrued to him, in its bid to ensure that Buhari was returned back to office.
The petitioners said they would call evidence of statisticians, forensic examiners and finger-print experts at the hearing of the petition to establish that the scores credited to Buhari were not the product of actual votes validly cast at the polling units.
Likewise, in one of the five grounds of the petition, Atiku and the PDP maintained that Buhari was not qualified to run for the office of the President, contending that he does not possess the constitutional minimum qualification of a school certificate.
Aside asking the Tribunal to declare that he was duly and validly elected and ought to be returned as President of Nigeria, having polled the highest number of lawful votes cast at the presidential election, Atiku, in the alternative, urged the tribunal to nullify the February 23 presidential election and order a fresh poll.