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OPINION : Atiku Vs Buhari: As Buhari Files Cross Appeal, The Billion Dollar Question Is – What Happened To General Tarfa’s Testimony?

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OPINION : Atiku Vs Buhari: As Buhari Files Cross Appeal, The Billion Dollar Question Is – What Happened To General Tarfa’s Testimony?

By Tai Emeka Obasi.

At exactly 2.45 pm on July 30, 2019, Retired Major General Paul Tarfa entered the witness box as the first witness recorded as number 250 on Buhari’s deposition list of witnesses.

Buhari’s lead counsel, Chief Wole Olanipekun, SAN put him through after affirmation as Buhari’s childhood friend and classmate in the military.

Under cross-examination from friendly INEC counsel, Yunus Usman, SAN, the General who caffirmed he had known Buhari for over 57 years said the Army NEVER took their certificates on admission. This was in clear contrast to President Buhari’s claims otherwise. This testimony was so clearly made that it could well be described as the most significant moment in the entire trials.

There was no deeper proof of Buhari’s lies about his academic qualification during the whole trial but the Tribunal, led by Justice Mohammed Garba swept this mother of all testimonies under the carpet to declare, “Buhari is not only qualified but eminently qualified.”

Despite the Buhari’s ‘Allied Forces’ filing a cross appeal at the Supreme Court a day later on Tuesday, September 24, 2019, the Atiku and PDP legal team are asking the Supreme Court to take a deeper look at General Tarfa’s testimony, amongst others, and adjudicate as appropriate.

Let’s look at Grounds 11 – 20 of the Petitioners’ Appeal.

Like I said earlier, carefully read to help you understand the true position before hearing commences at the Supreme Court.
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GROUND 11: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when, after relying on the provisions of sections 31(2), 31(4) and 76 of the Electoral Act, 2010 (as amended), held that it was not mandatory for the 2nd Respondent to have attached his academic qualifications to Form CF001.

1. Having filled and submitted Form CF001 (Exhibit P1), the 2nd Respondent was bound to comply with all its requirements and as such estopped from contending the contrary.

2. Form CF001 (Exhibit P1) ought to be considered and read holistically.

3. The contents of Exhibit P1 requires mandatory compliance

GROUND 12: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when, relying on the authority of TERVER KAKIH VS PDP & ORS. (2014) 15 NWLR (PT. 1430) 374 AT 424-425 and OLATUNJI VS WAHEED & ORS. (2010) LPELR 4754 CA PP. 18-20, inter alia held thus:
“The provisions of the Electoral Act 2010 cannot subvert the clear provisions of Section 131, 137 and 318(1)(d) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Any allegation of giving false information in the Affidavit submitted to INEC must be a false information of a fundamental nature that breaches any of the provisions of Sections 131, 137 and 138(1)(d) of the Constitution of the Federal Republic of Nigeria 1999 as amended.”

PARTICULARS OF ERROR:
1. The Court of Appeal had, prior to the above finding, relied on several decisions of the Supreme Court and the Court of Appeal to the effect that both the Constitution and the Electoral Act must be read side by side.

2. The Court of Appeal had also earlier relied on PDP VS. INEC (2014) 17 NWLR (PT. 1437) 525 AT 559-560 to hold that a person wishing to challenge the qualification of the winner of an election does so under Section 138(1) (a) of the Electoral Act.

3. The ratio decidendi in the dictum in KAKIH VS. PDP, SUPRA, relied upon by the Court of Appeal was that “the issue of non-qualification of 4th respondent by virtue of non-presentation of certificate was never the case of Appellants from the beginning earlier observed”.

4. Contrary to the ratio decidendi in KAKIH VS. PDP, SUPRA, the Appellants made non-submission of certificates by the 2nd Respondent part of their case.

5. Form CF001 (together with its contents) is a mandatory requirement of the 1st Respondent, in aid of Sections 131, 137 and 318(1) (d) of the 1999 Constitution (as amended).

6. The infractions committed by the 2nd Respondent and canvassed in the Court below were fundamental.

7. By Section 138(1) (e) of the Electoral Act, 2010 (as amended) the giving of false information of a fundamental nature in aid of a person’s qualification is now a statutory ground for maintaining Election Petition.

8. The crucial issue in the Appellants’ case is that the purported claim of the 2nd Respondent that his “Primary School Leaving Certificate, WASC and Officer Cadet” are with the Secretary of the Military Board is false.

9. As far back as 2014, the Nigerian Army came out to unequivocally deny that the Certificates of the 2nd Respondent are with them.

10. Four years after the denial by the Army that the Certificates of the 2nd Respondent were with them, the 2nd Respondent who filled Form CF001 in October, 2018 had a duty to attach his Certificates to the Form.

GROUND 13: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:

“The Petitioners insinuated that Officer Cadet is not a qualification or certificate under the Constitution and Electoral Act. The Oxford Advanced Learners Dictionary International Student’s Edition (7th Ed.) describes “CADET” as “a young person who is training to become an officer in the police or armed forces.”

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There is evidence on Record by RW1 and RW2, RW3, RW4, RW5 that 2nd Respondent had Secondary Education at KATSINA PROVINCIAL SECONDARY SCHOOL (now GOVERNMENT COLLEGE, KATSINA) from where he proceeded to Nigerian Military Training School, Kaduna from FORM VI in 1962 along with RW1. In effect 2nd Respondent went through further Education in Military Training after his Secondary School Education. The Military Training is thus higher than Secondary School Certificate Education.”

PARTICULARS OF ERROR:
1. The 2nd Respondent did not attach any evidence showing that “officer cadet” is a qualification or certificate.

2. RW1, RW3, RW4 and RW5 did not in their evidence claim to be the classmates of the 2nd Respondent in Katsina Provincial Secondary School.

3. RW2 did not give any evidence that the 2nd Respondent entered Military School in 1962. Rather, he said the 2nd Respondent entered military school in 1961 thereby contradicting RW1.

4. The 2nd Respondent’s witnesses led conflicting evidence on when the 2nd Respondent entered the Military School and the Court opted to rely on the date of 1962 without any explanation or the conflict being resolved.

5. The 2nd Respondent cannot create a case for his qualification outside what he claimed in Exhibit P1.

6. The evidence of RW1, RW2, RW3, RW4 and RW5 cannot, in law, be a substitute for the documentary evidence needed to prove that the 2nd Respondent has been educated up to Secondary School level or that he has the Certificates he claimed.

7. In the instant case, the 2nd Respondent did not bother to lead evidence before the lower Court with respect to the strange amorphous qualification called “Officer Cadet” throughout the trial or that his Military Training was higher than School Certificate education.

GROUND 14: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:
“The question may be asked, if 2nd Respondent did not present his Certificates how did the Army indicate the subjects in their Form 199A. The plausible inference was/is that he that he presented the Certificate to the Army for documentation. See Section 167 of the Evidence Act 2011 which says……………

It will be incredible and repugnant to common sense and justice to hold in the face of all the pieces of evidence highlighted above that 2nd Respondent does not possess qualifications to contest the exalted office of the President of the Federal Republic of Nigeria as prescribed by Section 131 and 318 of the Constitution of the Federal Republic of Nigeria or that he submitted an Affidavit to the 1st Respondent containing false information of fundamental nature in aid of his qualification to contest the election.”

PARTICULARS OF ERROR:
1. The lower Court did not rely on evidence led, but relied on assumptions and presumptions that the 2nd Respondent submitted his Certificates to the Military authorities, despite the clear, unambiguous and direct evidence of RW1 to the contrary.

2. The Learned Justices of the Court of Appeal treated the issue of educational qualification, as if that was the sole ground of the Petition on disqualification of the 2nd Respondent without adverting to the ground that the 2nd Respondent gave false information of a fundamental nature to the 1st Respondent in aid of his qualification.

3. Common sense has no role in proof of facts before the court.

4. There was no evidence that the 2nd Respondent submitted the Certificates, as claimed in his Form CF001, to the Secretary of the Military Board.

5. The 2nd Respondent who had opportunity to disprove the evidence of the Appellants on this point by producing the Certificates he claims to have in Form CF001 (Exhibit P1) inexplicably failed to do so.

6. The 2nd Respondent failed to produce a single Certificate in support of his claim, in Form CF001, notwithstanding the unequivocal denial by the Nigerian Army that his certificates were not with them.

7. The conclusion of the lower Court was speculative and not based on any proven facts or evidence.

GROUND 15: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held thus:

“What Brigadier Olajide Olaleye said is that the original copy or CTC or copy is NOT in his personal file. It does not exclude the inference that the Army may have the certificates having regard to the fact stated by Brigadier Olajide Laleye who said…

The question may be asked, if 2nd Respondent did not present his Certificate how did the Army indicate the subjects in their FORM 199A. The plausible inference was/is that he presented the Certificate to the Army for documentation.”

PARTICULARS OF ERROR:
1. The above finding is utterly speculative.

2. The 2nd Respondent did not adduce evidence in proof of his claim that he lodged his certificates with the Secretary to the Nigerian Military Board.

3. The evidence of RW1 is that no Certificate was presented to the military.

4. In Exhibits P80, P24 and R23, Brigadier Laleye said: “It is the practice in the Nigerian Army that before candidates are shortlisted for commissioning into the officers’ cadre of the service, the selection Board verifies the original copies of credentials presented”. However, he added that “there is no available record to show that this process was followed in the 60s”.

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5. The 2nd Respondent was recruited into the Nigerian Army in 1961 as claimed by RW2 or 1962 as claimed by RW1. Both claims are within the period of “60s” in respect of which Brigadier Laleye said there is no available record that the original credentials of candidates for commissioning were verified.

6. The evidence of RW1 under cross examination confirms what Brigadier Laleye said in Exhibits P80, P24 and R23.

GROUND 16: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:

“The Petitioners also tendered the C.V. of the 2nd Respondent showing his educational background, Military Service and Public Service becoming Head of State and Commander-in-Chief of the Armed Forces of Nigeria from December 1983 to 1985. All of these were confirmed by Brigadier-General Olajide Olaleye who said 2nd Respondent rose steadily to become Head of State. To my mind the CV contains impressive credentials to enable him contest and hold the Office of the President of Nigeria even if it could be said that he has only Primary School Certificate and that is not the case here. The 2nd Respondent has more than Secondary School Certificate having attended courses in famous Military College(s) in the USA, UK and India.”

PARTICULARS OF ERROR:
1. The Court below gave undue weight to the 2nd Respondent’s CV attached to Form CF001.

2. The 2nd Respondent’s CV, being evidence of working experience, did not list or attach any Certificate or educational qualification as the 2nd Respondent had claimed in Form CF001 that his certificates were with the Secretary to the Military Board.

3. The case the court below made for the 2nd Respondent with respect to what was said by Brigadier Olaleye breached the Appellants’ right to fair hearing.

4. The CV and status of the 2nd Respondent as a former Head of State at the time he completed Exhibit P1 will not negate the false claim made.

5. The qualification of a candidate to contest for the office of the President of the Federal Republic of Nigeria under extant Laws is not such that can be established in a mere C.V (Curriculum Vitae).

6. In the instant case, the Nigerian Military denied the 2nd Respondent’s claim that his Certificates are with them.

7. It was incumbent on the 2nd Respondent to produce real evidence of his Certificates, which he never did.

8. The 2nd Respondent himself did not rely on his C.V as evidence of his qualification or Certificates obtained, as claimed in Form CF001.

9. There is nothing favourable to the 2nd Respondent in Exhibits P1 and P24 tendered by the Appellants in support of their case that the 2nd Respondent gave false information of a fundamental nature to the 1st Respondent in aid of his qualification.

GROUND 17: ERROR IN LAW
The Learned Justices of the Court of Appeal while relying on non-existent exhibits to wit Exhibits 124 and 130 erred in law when they held as follows:

“There is no doubt that he is eminently qualified to contest the February 23, 2019 Presidential Election.

The Petitioners cannot run away from all the facts that are favourable to 2nd Respondent’s Exhibits P1 & P24 tendered by them. The fact that he did not attach his Certificates to the CV or Form CF001 cannot lead to conclusion that he did not obtain them or that he is not educated up to School Certificate level or its equivalent.

Since the documents Exhibit 124 and 130 were tendered to advance the Petitioners case, the Court is entitled to utilize and validate them and in advantage position and qualified to draw such inferences as found fit and proper to do.”

PARTICULARS OF ERROR:
1. The finding that the 2nd Respondent is “eminently qualified to contest” the Presidential election is gratuitous and unsolicited.

2. The 2nd Respondent sought no relief in the proceedings.

3. There is nothing in Exhibits P1 and P24 that negates the fact that the 2nd Respondent’s Affidavit contains false information of a fundamental nature in aid of his qualification.

4. There were are no documents tendered and marked as “Exhibits 124 and 130” during the proceedings.

5. The purported “Exhibits 124 and 130” cannot ground any inference favourable to the 2nd Respondent.

6. It is a mystery how the Court below relied on purported Exhibits that are imaginary.

GROUND 18: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held thus:

“What the Petitioners did through their Learned Counsel was tendering the documents from the Bar with no one to confirm the authenticity of the report contained in Exhibits P80 and P24 and with no witness to cross examine on it thereby rendering Exhibits P80 and P24 of no probative value as the Court cannot rely on then to found on Petitioners favour.
The consistent holding of the apex Court is that such documents (Exh. P80 and P24) must be tendered through their makers or where tendered from the bar the maker or a witness with the knowledge of Exhibits P80 and P24 must be called to give evidence on them. Moreso the Petitioners made allegations of crime the cornerstone of Issues 1 and 2”
PARTICULARS OF ERROR:
1. The 2nd Respondent did not canvass the issue hereof.

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2. The contents of Exhibits P80 and P24 are the same with what was credited to Brigadier Laleye in 2nd Respondent’s Exhibit R23.

3. The Court below relied on Exhibit R23 in making a finding favourable to the 2nd Respondent.

4. The evidence of RW1 is in tandem with Exhibits P80 and P24.
5. Exhibits P80 and P24 are Certified documents.

6. The lower Court had a duty, which it shirked, to presume Exhibits P80 and P24 as genuine and authentic.

7. Exhibits P80 and P24 were in no way faulted or impeached by the Respondents.

8. The denial of probative value to Exhibits P80 and P24 by the lower Court is perverse and same has occasioned a grave miscarriage of justice.

GROUND 19: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:

“That is not the end of the matter. I take it a little further that even if the newspaper Report containing the Army denial Exhibit P24 can be accorded probative value or weight, the newspaper Exhibit P24 and in particular the statement or refutation made by Brigadier General Olajide Laleye on 21st January, 2015 does not at all support the position of the Petitioners that the 2nd Respondent has no certificates or that he was not educated up to Secondary School Certificate. Exhibit P24 point blank confirms that the 2nd Respondent obtained a WASC Certificate otherwise known as West African School Certificate and that he attended the Schools listed in his FORM CF001 Exhibit P1.”

PARTICULARS OF ERROR
1. The Court of Appeal made a case which none of the Respondents made.

2. The unequivocal claim of the 2nd Respondent is that the Certificates he listed in Exhibit P1 “are currently” with the Secretary to the Military Board.

3. Brigadier Laleye clearly stated in Exhibits P80, P24 and R23 that the Nigerian Army does not have the original copies or Certified True Copies of the 2nd Respondent’s Certificates.

4. There is nothing in Exhibit P24 that confirms that the 2nd Respondent obtained WASC Certificate.

5. The confirmation can only be made by a production of a Certificate or a Certified True Copy of it.

6. The finding of the court below is speculative.

GROUND 20: ERROR IN LAW
The Learned Justices of the Court of Appeal erred in law when they held as follows:

“It must be stated that the evidence of RW1 so much relied upon with elation has no relevance or weight at all in that the 2nd Respondent never deposed to any Affidavit stating that he submitted his certificates to the Army when he was enlisted to the Nigerian military training school Kaduna in 1962. What 2nd Respondent deposed to was that in 24th November, 2014 stating that his educational qualifications are with the army not at the point of enlistment with the Army. If Exhibit P24 is anything to go by, it clearly punctured the case of the Petitioner because the Nigerian Army through Brigadier General Olafide Lalaye stated that records shows that 2nd Respondent was a form six student at Provincial Secondary School, Katsina as at 18/10/1961 when he applied to join the Army and it was on the recommendation of his principal who assured that 2nd Respondent would pass his examination in math, English and three other subjects that he was enlisted into the Army and he eventually passed thereafter. In effect there could be no certificate deposited in the Army Board when he entered Military School or was enlisted in the Army.”

PARTICULARS OF ERROR
1. The case encapsulated in the above findings was not made by the 2nd Respondent.

2. The findings are not anchored on any pleading of the 2nd Respondent.

3. Contrary to the findings, Brigadier Layele’s public statement contained in Exhibit P24 was informed by the 2nd Respondent’s claim that he submitted his Certificates to the Secretary to the Military Board.

4. There is nothing in Exhibit P24 that confirms that the 2nd Respondent “eventually passed thereafter”.

5. The material issue is that the military denied that the 2nd Respondent deposited any Certificate with it.

6. The evidence of RW1 relied upon by the Appellants particularly with respect to his answer under cross examination by the Learned Counsel to the 1st Respondent to the effect that they did not submit their Certificates to the Army, contrary to the claim of the 2nd Respondent is relevant and weighty.

7. The 2nd Respondent led no evidence before the lower Court to explain that he did not mean that his Certificates were with the Army at the point of enlistment.

8. Exhibit P24 did not puncture the case of the Appellants as erroneously claimed by the lower Court.

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Jake Clifford

Jake Clifford is a Nigerian Born blogger and a fast growing Journalist, whose aim is to inform Nigerians with happening across Nigeria. Send story tips to him via [email protected] or

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