Atiku’s motion rejected as court president quits panel

The President of the Court of Appeal and Chairman of the Presidential Election Petitions Tribunal (PEPT), Justice Zainab Bulkachuwa, withdrew yesterday from the petiton filed by Atiku Abubakar and his Peoples Democratic Party (PDP).

Atiku and the PDP are challenging the outcome of the February 23 election won by President Muhammadu Buhari of the All Progressives Congress (APC).

They alleged, in a motion, that Justice Bulkachuwa was likely to be biased because her husband and son are members of the APC.

In a ruling, the five-man PEPT rejected Atiku’s and his party’s motion for being unmeritorious.

But, Justice Bulkachuwa elected to exclude herself from the tribunal on personal grounds.

In the lead ruling, Justice Olabisi Ige was of the view  that the relationship between Justice Bulkachuwa and her husband, Adamu Bulkachuwa, who is a senator-elect, and her son Aliyu Abubakar, a governorship aspirant (both as members of the APC) was not sufficient to conclude that she would be biased in the handling of the case.

Justice Ige held that no inference of likelihood of bias could be made from the speech delivered by Justice Bulkachuwa at the inaugural sitting of the tribunal on May 8, to conclude that she had pre-judged the petitioners’ petition.

The judge noted that neither the husband nor the son was joined as a party to the petition and that neither of them was accused of any wrong doing in the petition filed by Atiku and his party.

Justice Ige equally noted that neither of the two men had been listed as part of APC’s witnesses in the petition.

He added: “To the petitioners/applicants, the above remark appears to them that the President of this court and Presiding Justice of this panel had already pre-judged the presidential election  as well-conducted and that this petition is one of the complaints that come up, no matter how well election is conducted.

“I am of the solemn view that no such inference is discernible from the above quoted statement.  The entire speech ought to be read as a whole in order to truly discover what the content of the inaugural speech portrayed.

“Concerning the complaints of the petitioners/applicants to the extent that the affinity between the Honourable President of this court will engender a likelihood of bias on the part of the Honourable President of this court, if she remains the Presiding Justice, I am of the firm view, that enough materials have  not been placed before this court to show that the Presiding Justice of this panel is likely to be biased against the petitioners/applicants in the hearing and determination of the petition.

“I am of the view that the fact that the Honourable President of this court is the wife of Honourable Adamu Mohammed Bulkachuwa and the mother of Aliyu Haidir Abubakar are not weighty enough to impute likelihood of bias against the President of the Court of Appeal.

“The two of them are not parties to the petition before us, and have not shown to be listed as witnesses of the 3rd respondent (APC) in the petition before us.

“There is no allegation made against the spouse or the son of the Honourable President of this court in the petition of the petitioners/applicants. Their relationship with the Presiding Justice of this panel is not at all capable of causing likelihood of bias against any of the parties in the petition.

“The full court has been empanelled consisting of five Justices of this court, in full appreciation of the importance of due process and just dispensation of justice in the hearing and determination of this case relating to the presidential election, notwithstanding that the court will be duly constituted if it consists at least three Justices of the Court of Appeal.

“I have deeply ruminated over the affidavit evidence filed in support and against the application of the petitioners/applicants and the various submissions of the various learned counsel to the parties in this petition and I am of the view that the petitioners/applicants have not been able to positively establish the need for the Honourable President of this court and the Presiding Justice of this panel to recuse herself from further sitting or participating in the proceedings in this petition.

“Consequently, the petitioners’ application fails and it is hereby dismissed,” Justice Ige said.

Other members of the tribunal, including Justice Bulkachuwa, agreed with Justice Ige’s position in the lead ruling.

Shortly after the tribunal’s ruling was concluded, Justice Bulkachuwa said: “I am recusing myself from the panel for personal reasons”.

Justice Bulkachuwa said it was gratifying that the issue was resolved “based on the facts and the law” so that “another female judge will no longer have to face what I have faced”.

The President of the Court of Appeal assured all that a new presiding Justice would be appointed for the panel, but that the four remaining members would continue with the hearing of the preliminary applications pending the appointment of the new head of the panel.

No date was however chosen for further proceedings. The court’s registry will issue a fresh hearing notice on parties.

Lawyers in the case, including Livy Uzoukwu (SAN) for the petitoners; Wole Olanipekun (SAN) for the Buhari, Lateef Fagbemi (SAN) for the APC, and Yunus Usman (SAN) for the Independent National Electoral Commission (INEC), praised Justice Bulkachuwa for her decision.

Olanipekun said the decision had saved the judiciary from an embarrassment.

Uzokuwku said his team filed the application interest to protect the right of their clients.

He added that the application was “never personal”, adding that it was carefully done “to respect the institution”.

Buhari and the APC had, in their separate responses to the motion filed by the PDP and Atiku, argued that the decision about whether or not Justice Bulkachuwa should withdraw her membership of the five-man panel set up to hear the petition by Atiku and the PDP was not for them to make.

In court documents they filed, in response to the motion by Atiku and the PDP, seeking Justice Bulkachuwa’s withdrawal from the case, Buhari and the APC argued that the decision was entirely that of the Court of Appeal President.

In the document filed for Buhari by his team of lawyers,led by   Olanipekun (SAN), it was argued that although Justice Bulkachuwa, as the Court of Appeal President, reserves the constitutional powers to determine the composition of all election tribunals nationwide,  the choice was for her to make whether or not to accede to the request by Atiku and the PDP that she recuse herself.

In the document filed for the APC by its Fagbemi-led legal team, it was argued that the reasons given by Atiku and the PDP to demand Justice Bulkachuwa’s withdrawal were mere blackmail.

The APC, however, urged Justice Bulkachuwa to protect her name and integrity by withdrawing her further participation in the hearing of the petitions by Atiku and PDP.

Fagbemi, APC’s lead lawyer, noted that it was fast becoming the norm to litigants to query the integrity of any judge they are not comfortable with.

He said: “As it is fast becoming the norm, and regrettably so, this is another havoc wreaked on the finest Nigerian jury.

“This is not the first time this is happening. Just recently, Justice Oyewole, whose immortal contribution was acknowledged by the counsel for the applicants a while ago, was written against not to be allowed to sit on the appeal panel on the Osun State governorship election petition.

“Nebulous as ‘likelihood of bias’ is, it has its own boundaries. The exhortation in all the authorities that have been cited recognise that each case will have to be dealt with on its own merit.

“The matter before the court has nothing to do with governorship or National Assembly elections. Whatever the constitution of a political party is, it is the Constitution of the country that is supreme.

“And nowhere in the Nigerian Constitution that the President is allowed to remove a governor or a member of the National Assembly.

“My conclusion, with respect, is that the application is blackmail. On the facts and the law, the application is most unmeritorious.

“But, with respect, next year, your lordship, the President of the Court of Appeal, will be bowing out gloriously by God’s grace.

“Your name, either the one you acquired before you got married or the one you acquired after you got married, none is for you alone.

“You hold them in trust and you have been blessed – being the first female President of the Court of Appeal in Nigeria.

“My lord, your youthful look may confuse one. You are old enough to be my mother. My lord, if you are standing in as my parent, I will say, Mum, leave the matter,” Fagbemi said.