Presidential candidate of the Action Congress (AC), Alhaji Atiku Abubakar, who made the allegation also provided Delivery Notes from the Nigerian Minting, Security and Printing Company (NMSPC) showing that ballot papers ordered by INEC for the April 21 election were delivered six weeks after the election. INEC officials signatures on the delivery notes showed that the ballot papers were collected on June 1, 2007.

He also presented a copy of the directive by INEC Chairman, Professor Iwu, to the NMSPC that ballot papers for the Presidential election should not contain serial numbers as stipulated by the Electoral Act 2006. Iwu similarly directed in the same document that the ballot papers should not contain the names and pictures of candidates in the election.

“INEC has not been categorical about where the ballot papers used for the presidential poll were printed in view of the fact that it had admitted in its defence to our petition and the interrogatories that some were printed in South Africa while another batch was printed by the Nigerian Printing and Minting Company Limited," Alhaji Atiku said through his counsel in his final address to the tribunal.

“From all that is before this court, INEC does not know the number of ballot papers it issued out on the day of the presidential poll. It does not even know how many of the issued ballot papers were used or unused. Worse still, INEC Chairman declared Alhaji Musa Yar’Adua winner of the April presidential poll after results from only 13 states of the federation were collated.

“They have not denied all these. What they did instead was to tender two conflicting final results on the presidential poll, explaining that one was electronically generated and the other was manually recorded,” he said.

The occasion  was the adoption by the tribunal of final written addresses on the petitions filed by Alhaji Atiku and Maj.-Gen Muhammadu Buhari (rtd) of the All Nigeria People’s Party (ANPP) against President Yar’Adua.

Atiku also alleged that the INEC boss deliberately breached the provisions of the Electoral Act 2006 in order to rig the election for President Yar’Adua.

“If you deliberately breach the provisions of the Electoral Act 2006, it does not lie in your mouth to talk about substantial compliance with the same Act.

“INEC does not know the number of ballot papers it issued out for the April 21, 2007 presidential poll. It does not even know how many of the issued ballot papers were used or unused. Both INEC and its Chairman are not denying all these. Worse still, INEC Chairman declared Alhaji Musa Yar’Adua as winner of the April presidential poll after results from only 13 states of the Federation were collated,” Prof Babatunde Kasunmu, lead consel to Atiku  said.

The final written addresses were originally scheduled to be adopted on Monday but for the strike embarked upon by the Judiciary Staff Union of Nigeria (JUSUN) which paralaysed activities in courts nationwide.

Although some of the junior workers and members of JUSUN who were supposed to be at  their duty post yesterday to open the main entrance of the Court of Appeal premises were nowhere to be found, senior officials of JUSUN who reported for work forced the door open.

Proceedings commenced some minutes after 9:00 a.m  with INEC and its Chairman, Prof Iwu adopting their final addresses first.

In court to witness the proceedings were key cabinet members of President Yar’Adua’s government including the nation’s chief law officer, Chief Michael Aondoakaa (SAN), and Minister for Culture and Tourism, Prince Adetokunbo Kayode (SAN).

INEC tears into Buhari's petition

Lead counsel to INEC, Chief Kanu Agabi (SAN), tried to tear Buhari’s petition into shreds with a counter analysis  before urging the court to dismiss Buhari’s petition.

He said: “The second petitioner in this case (Buhari’s running mate) has withdrawn from this petition. The party which sponsored Buhari also withdrew. The name of President Olusegun Obasanjo who was joined as a respondent in this petition was also struck out by this tribunal together with all the allegations against him.

“The petition which stood on a tripod now stands on one leg and this one leg is extremely weak. The leg is not even standing, it is lying there.

“On the petition, it is submitted that Buhari’s case is supported by depositions. This is an election that took place in the 36 states of the Federation including the Federal Capital Territory (FCT).

“The petitioner filed 20 witness depositions in respect of four states. The four states are Katsina, Imo, Plateau and Rivers. Of the 20 depositions, 12 are in respect of Imo State, one each for Plateau, Katsina, and Rivers. There are no witness depositions in respect of 32 states of the Federation and the FCT.

“On that ground alone, the petition ought to be dismissed. I submit that the depositions in respect of the states challenged did not raise any issue of substance.

“Besides, even in respect of the four states, those depositions made were inadmissible because they were sworn before counsel to the petition and this is not denied by the petitioner. His contention was that the practice direction was unconstitutional. If you agree with him that the practice direction is unconstitutional, it must be dismissed because it has violated due process.

“Again, this petitioner challenged the election in 11 states of the 36 states of the Federation. The election in other states are not condemned. Even if this tribunal moves against us in these 11 states, this court can still sustain this election.

“A petitioner who comes before this court and alleges irregularities must  prove that it is substantial. What the law is saying is that if the election is bad, it must be obvious. If it is not obvious, it must be upheld,” he said.

Although Chief Mike Ahamba (SAN), the lead counsel to Buhari, denied attacking the election in only 11 states, he admitted that the witness depositions before the court were in respect of four states and that they were mere examples of what transpired in about 29 states of the Federation where he alleged irregularities.

President Yar’Adua through Chief Olanipekun also joined INEC to attack the petition by Buhari yesterday.

The Police, the People’s Democratic Party (PDP) and the Nigerian Army also defended the election of President Yar’Adua yesterday and the separate roles they played in the poll.

How Iwu declared Yar'Adua winner — Atiku

But immediately after the adoption of the written addresses on Buhari’s petition was concluded, lead counsel to Alhaji Atiku, Prof  Kasunmu, patiently went through the petition to prove that preparations for the April 21, 2007 presidential poll were flawed and that the election results were announced by the INEC boss after collation was concluded in only 13 states.

He opened his argument with the controversial point on exclusion of his client.

Both INEC and Yar’Adua had earlier canvassed that Atiku’s petition ought to be dismissed for claiming in one breadth that he was excluded from participating in the presidential poll and also claiming that he was rigged out in the same election.

They had said his petition was speculative because “they cannot be here and be there.”
But Prof. Kasunmu said up till April 17, 2007 when the Supreme Court gave its judgment ordering INEC to allow his client, Atiku, participate in the election, his name was not on the candidates list.

He said the list produced by INEC to show that his name was on the list of presidential candidates for the April poll was undated and that there was no way INEC could establish that up till April 21 when the poll was conducted, Atiku was not excluded from the poll.

Prof Kasunmu said four days to the election, Iwu personally ordered for printing of ballot papers for the presidential poll without serial number.

He said this was contrary to the electoral laws which provided that election could only be valid if the ballot papers used for the election are serialised, printed in duplicates with the names and photographs of candidates embossed on them.

He said in the instant case, it was not so because on April 17, 2007, the INEC boss ordered that the ballot papers be printed without serial number, without names and photographs of candidates and without duplicates.

Prof. Kasunmu said in the defence to their petition, Prof. Iwu  tried to justify why he ordered the printing of un-serialised ballot papers by saying that the commission ought to be commended for being able to print the ballot papers after the Supreme Court judgment in favour of Atiku in South Africa, air-freighted them to the country on the eve of the election and distribute same to every nooks and crannies of the country within a short period of time.

He said during the checking of the ballot papers used for the presidential poll, they discovered that some of the ballot papers were printed by the Nigerian Printing and Minting Company.

He said the discovery made them to serve interrogatories on Iwu to ascertain where the ballot papers used for the last year presidential poll were printed.

Prof Kasunmu said they were surprised to learn from Iwu’s answers to the interrogatories that the ballot papers were never printed in South Africa but that the contract was issued to the Nigerian Printing and Minting Company.

He said upon further enquiries, the records made available to Atiku by INEC showed that indeed a contract for the printing of a batch of ballot papers was given to the Mint but that it was not delivered until six weeks after the presidential poll.

“The question now is: which ballot paper was in fact used for the presidential poll?
“The truth about it is that from the documents before the court which they have not denied, they don’t know how many ballot papers were issued out on the day of the presidential poll. They don’t even know how many of the issued ballot papers were used and how many were unused.

“There is a final twist to the saga relating to the printing of ballot papers which this court must of necessity countenance in deciding whether or not to invalidate the presidential election conducted by the 4th and the 5th respondents on April 21, 2007 bearing in mind that the ballot paper is the key document used by voters to exercise their rights to vote for a candidate of their choice

“Clearly, if there are controversies surrounding the source of the ballot paper, the format of the ballot paper and the quantity of the ballot paper, these issues cannot be swept under the carpet by the courts as they are key issues for the validation or invalidation of the election

“We refer the court to the ballot papers used for the presidential election and tendered as exhibit EP3\32(1)-(14) before this court.

“The evidence on those ballot papers shows quite clearly that they were printed by the Nigerian Security Printing and Minting Company Limited and yet the pleadings of the 4th and the 5th respondents is that the ballot papers used for the election were printed in South Africa

“How can the court validate an election based on the ballot papers where there is controversy as to where it was printed, who printed and the quantity so printed and as to which ballot paper was actually used for the election.

“Why should the 4th and the 5th respondents lie as to where the ballot papers were printed and why did they fail to disclose that some ballot papers printed in Nigeria were also used.

“If the ballot papers used were in fact printed in South Africa, why did they bear the imprint of the Nigerian Security, Printing and Minting Company?

“The quantity of ballot papers printed and received from South Africa has not been disclosed by the 4th and 5th respondents. The quantity of unused ballot papers from South Africa has also not been disclosed. There is evidence that the 4th-5th respondents ordered for the printing of 65 million ballot papers from the Nigerian Security, Printing and Minting Company Limited and did receive 128 million ballot papers from the company on June 1, 2007

“There is yet another set of ballot papers printed by the Nigerian Security, Printing and Minting Company Limited which found their way into the ballot boxes. There is no way, we submit, in which this court can pronounce that the votes credited to Yar’Adua on the 21st of April 2007 were votes legitimately cast,” he said.        

However, a request by the counsel to the former Vice President to tender the Official Report of INEC on the April elections was rejected by the tribunal. After listening to arguments from counsel to Atiku, PDP and INEC, the tribunal Chairman, Justice Ogebe, ruled that the document was not pleaded nor listed at the pre-trial stage by the former Vice President.

Atiku’s counsel had argued that the claims of Iwu that he did not award a contract to any South African company over the ballot papers had been contradicted by him in his own official report on the election.

Mint delivered ballot papers for polls on June 1, 2007

He argued that with the delivery notes from the printers indicating that it delivered ballot papers for the Presidential Election to INEC on June 1, 2007, INEC could not have used the same ballot papers for an election that took place six weeks earlier. He said the documents which had been accepted as exhibits had been supplied by the NMSPC in response to a subpoena from the Election Petition Tribunal.

Professor Kasumu said since Iwu said he did not award any other contract  for the printing of ballot papers for the Presidential election, the tribunal should invalidate the election because the source of the ballot papers was dubious and the ballots lacked integrity.

He also pleaded that the admission by INEC that the ballots bore no serial numbers and counterfoils showed clearly that accountability had been ruled out of the exercise.

He also dismissed the undated list of Presidential Candidates on a plain sheet of paper, purportedly bearing the name of the AC Presidential candidate, Atiku, as questionable.

He said there was no dispute between INEC and Atiku as regards the exclusion of Atiku from the election up till April 16, five days to the election, when the Supreme Court gave its judgment.

He asked the Court to determine if INEC fulfilled the provisions of the Electoral Act 2006 which stipulate that INEC must publish the names of presidential candidates 120 days to election in the initial list and 30 days to election in the final list. He said INEC breached these provisions thereby excluding Atiku from the election.

The tribunal adjourned judgment in the two petition sine die.