Below are excerpts of what the All Progressives Congress (APC) presidential and vice presidential candidates, Alhaji Bola Ahmed Tinubu and Senator Kashim Ibrahim Shettima, respectively, told the Presidential Election Petition Court (PEPC) about the “bombshell Amazon Witness” PW 7 at the Presidential Election Petition Court (PEPC).
Tinubu/Shettima made the remarks in their response of the petition filed at the Presidential Election Petition Tribunal by Mr. Peter Gregory Obi and his Labour Party (LP).
Amazon Web Service (AWS), it could be noted, is the Company owner or Provider of the Servers and BVAS Machines that the Independent national Electoral Commission (INEC) used to conduct the 2023 general elections.
INEC had about 3 or 4 Servers that they used for the conduct of the general elections few months ago which were installed at its headquarters in Abuja by AWS who was also responsible for the protection of those servers for hackers and internet fraudsters.
Read details of how Amazon Web Services exposed INEC at the Tribunal below:
Tribunal Update: INEC lied, no technical glitch on election day, says Amazon Witness
Read Tinubu/Shettima’s response below:
Evidence of PW2, PW4, PW7, PW8 & PW12 considered
The evidence of these witnesses essentially centers round the function of the BVAS and 1REV and ultimately seek to impeach the veracity of INEC’s explanation about the technological glitches that occurred on the day of the election and its implication on the overall results of the election. Without equivocation, it is our respectful submission that the petitioners have woefully failed in this adventure of theirs and this will be seen through the direct analysis of their respective evidence.
The evidence of PW2 is largely irrelevant for the benefit of the petition, as his witness statement on oath only attempted to outline the various features and functions of the BVAS; the involvement of the Amazon Web Service (AWS) and its corporate profile; as well as the description of the IREV, its workings and configurations. However, despite the supposed authoritative assertions of this witness in respect of the BVAS and the IREV, under cross examination, he confessed that he is not familiar with the applications on the BVAS device and that as a software engineer, he has never designed any software that was applied for the conduct of any general election.
Though this witness had made several assertions in respect of the AWS in his witness statement, in all fairness to him, he opened up that he is not a staff of AWS. Similarly, the witness confessed that he was not aware of the number of software that makes the components that INEC used for the 2023 general election, as he is not an INEC staff, admitting that he never had any of the materials he used for his supposed findings before the court, but on his laptop which was not made available to the court.
The irony about this witness is that despite his bogus claim and the bravado exhibited in the statements regarding the various technological issues, he virtually claimed not to be aware of anything at the end of everything. This exposes the witness’ limited or total lack of knowledge of the facts in respect of which he pretended to be asserting authority and by the decision of the apex court in Emoga v. State (1997), it impacts on his overall credibility and further demonstrates why this Honourable Court cannot take his depositions seriously. Perhaps, seeing the damage that this witness has caused to their case, including his confession of not being a staff of AWS, the petitioners now proceeded to invite PW7, who claimed to be a cloud engineer and a member of staff of AWS.
Though this witnesses intended demonstrating to the court that the AWS server was beyond any form of reproach, it would take only a few questions under cross examination to expose the futility of this theorem. Starting with Exhibits PCJ1 and PCJ2, which were the only documents the witness attempted to employ in proving the fact of her connection with AWS, both documents were unsigned and this goes to the relevance and even admissibility of the documents. We respectfully urge this Honourable Court to hold that the said documents are totally worthless, being not only inadmissible, but of no evidential value whatsoever.
Additionally, Exhibit PCJ2, which would have established her connection with AWS, as the latter’s staff, was without an author, thus, leaving to doubt, the assertion that same emanated from the AWS. The end result of this will be that against the admonitions of the courts in Abubakar & Anor. v. INEC & Ors. (2019), she was unable to properly identify herself as a staff of AWS, and this Honourable Court ought to discountenance the entire evidence of this witness on this basis. In any event, the witness admitted that though the report she tendered relates only to AWS infrastructure, the subpoena she brought before the court was not delivered to Amazon but to her in person and that she was not in court on the authority of AWS.
On this account, we submit that the evidence of this witness cannot be treated as the evidence of AWS or taken with any seriousness at all. The predicament of PW7 and indeed the petitioners did not end there, this supposed witness was unable to present her letter of employment by AWS as the supposed unsigned letter of confirmation of employment was only manufactured by her, on 19th June, 2023 (as per the date on the document), a day before the tendering of same, indicating that this document was made by a party interested, during the pendency of litigation, for the mere purpose of litigation, thus, rendering same inadmissible.
This Honourable Court will further appreciate that this witness was a party interested, when it observes that she is a card-carrying member of the petitioner, who in fact, contested election to become a member of the House of Representatives, representing Cross River State, under the banner of the 2nd petitioner, where she lost the election. The interesting thing about her political involvement, however, is that, in her quest to secure the admission and publication of het :late by INEC for the National Assembly election, she had averred before the Federal High Court that she made several efforts to upload her name on the NEC network site, but because of network failure, her efforts proved abortive, as the INEC site crashed – this she wholly admitted under cross examination.
This evidence corroborates the respondents’ case of a technological glitch on the day of the election and flattens the petitioners’ insinuation of the impregnability of any of the technological components. More so, this witness admitted the several incidents of glitches and outages on the AWS sites (including the fact that as at 2021, the AWS has had over 27 episodes of outages), while identifying that if these could happen in 2021 and time past, they could happen anytime, as according to her, “anything is possible.” This admission by her, evaporates the entire suggestion by her, that the AWS server was beyond any form of reproach.
Meanwhile, the reports supposedly tendered by this witness were admittedly merely downloaded on the website of AWS. Therefore, the witness was not the maker of same and could in fact, not have validly withstood cross-examination in relation to the said document. These documents which was eventually admitted and marked as Exhibits P03 (A-F) and PCJ4, however, did not indicate any key to assist this Honourable Court in identifying the connotations of the various characters on the purported reports. Without mincing words, the evidence of this witness, including the purported reports are worthless, meaningless. of no value whatsoever and fit only for the trashcan.
The evidence of PW4 was basically a comparison of the uploads to the 1REV and the declared result by INEC. We have earlier in this address, established the fact that the relevance of upload on the 1REV, as far as the extant legal framework currently stands, occupies a tertiary place in the pecking order, and does not have any impact on the election, as the actual building blocks of the election are the Forms EC8A and EC 60E. Beyond this, however, this witness who tendered bundles of documents described as his reports, admitted that he was procured by the Labour Party to produce the report and that the primary source of his data was the 1REV portal, going by his term of reference, as contained in paragraph 3 of his witness statement. Paragraph 3 of the witness statement is very instructive.
Therein, the witness had suggested that his terms of reference were:
(a) Carry out data analysis on the election results State by State;
(b) Determine whether the result to be announced by the Independent National Electoral Commission (NEC) at the conclusion of the election of the election on 25th February, 2023, match with the results uploaded on INEC Result Viewer (IREV) portal; and,
(c) Determine NEC compliance with the Electoral Act, 2022 and the INEC Regulation and Guidelines for Conduct of Elections, 2022.
Primarily, these terms of reference serve as the basis for the relevance of whatever this witness has submitted to this Honourable Court. To start with. his first term of reference had required him to carry out data analysis on the election result -State by State”.
However, he admitted under cross examination that he only gave consideration to. or merely tendered reports in respect of two States, that is Benue and Rivers. Therefore, not only could his report not have been accurate and in tandem with the overall result on a State by State consideration, the second term of reference is also automatically defeated, as the two States’ consideration could not have sufficed in determining “whether the result announced by INEC at the conclusion of the election of the election on 25th February, 2023, match with the results uploaded on INEC Result Viewer (IREV) portal.”
The point being made is that an isolated consideration of two States out of the 36 States of the Federation and the FCT could not ground an empirical analysis of accuracy of the overall results, whether on IREV or actual declaration. In any event, this incongruency was exposed when the witness tendered Exhibit PCEI-PCE4 which are the over 18088 blurred polling unit results, claimed to have been downloaded from the IREV. It is noteworthy that the witness himself admitted under cross examination that the totality of the said polling units both in Rivers and Benue, where he claimed to have considered, would not amount to 18,088 polling units. In effect, therefore, as far as the evidence of this witness was concerned, it is without any foundation or structure.
Lastly, engaging an acclaimed professor of Mathematics to determine whether NEC had complied with the provisions of the Electoral Act, as well as the Regulations and Manuals, took the petitioners’ undermining of the authority of this Honourable Court too far. Without over flogging the issue, this witness lacked the requisite capacity to so do, and if the petitioners should advance arguments to the contrary, then they could as well be suggesting that the witness has done the job for this Honourable Court only to rubber stamp or that their approaching this Honourable Court is merely to fulfil all righteousness, since their professor of Mathematics had already determined INEC’s compliance with the Electoral Act.
Of course, the tack of capacity of this witness who has no background or learning in law is obvious. The totality of these analysis, demonstrate that even the terms of reference, which is the foundation upon which the entire activities are predicated, are crooked and devoid of firmness.
In any event, though the witness agreed that it is the image of the form EC8A that is usually uploaded to the IREV, he surprisingly admitted that he never sighted the hardcopies. On this account, the purported analysis of the result cannot be taken with any seriousness, as the professor admittedly refused to accord any cognizance to the primary data, being the form EC8A. In other words, premised on our earlier established position of the primary essence of the hardcopy of the Form EC8As, there is nothing before the court that ascertain that the forms purportedly downloaded from the IREV, making a total of 8088 blurry documents appear in the same manner in the hardcopy of the Form EC8A, as anything, including the intervention of printers, toners and the likes, could have accounted for blurriness of a document which had undergone printing.
More so, and to corroborate our submission on the superior place of the hardcopy, the witness admitted that the IREV is not capable of collating scores and that the fact that the uploaded result is blurry or not, or whether the uploading fails or not, will not fact that the uploaded result is blurry or not, or whether the uploading fails or not, will not change the result entered into the appropriate Form EC8A at the polling unit, while confessing that the IREV is not a collation center.
Worse still, the witness was shown Exhibit PCD2 (with respect to Rivers State), for him to identify a particular polling unit in Degema Local Government Area where he had earlier alleged there was over-voting. Contrary to the content of the purported report, where over-voting had been alleged in respect of the said polling unit, amongst several others listed, the number of accredited voters and total votes cast tallied at 40, where the witness also dramatically admitted that there is no over-voting at the polling unit.
With respect to this Honourable Court, this suffices to puncture the evidence of this witness as all his summations and computations have been shown to be inaccurate on account of his random lumping of polling units. Of equal importance also, is the fact that this witness who said he was engaged by the petitioners prior to the election, admitted that he concluded his assignment on l9th March, 2023, prior to the filing of the petition. While this was in anticipation of the proceedings with the attendant evidential consequences of inadmissibility [see section 83(3) of the Evidence Act], it must also be added that same ought to have come with the petition and not forming part of a subpoena at the middle of the hearing, with the aim of springing surprises on the respondents and furtively introducing polling units, which hitherto, were not part of the petition.
In any event, the polling units forming part of the said purported reports were not pleaded in the petition, thereby, amounting to the fact that the entire evidence is irrelevant to the petition, since evidence without pleading goes to no issue. PW8 is another witness who ostensibly was introduced in the course of the petitioners’ panic to remedy the damage done to and by the evidence of PW7. The purpose of his own testimony, as appearing on his witness statement on oath, was to react to INEC’s claim about the technological hitches experienced in the course of the election. He, however, did this, more through weblinks and codes.
As the court will see through his witness statement, a larger portion was made up of weblinks, of which he indicated that he never intended for the court to comb the links to access and download the documents in the recess of its chambers. It then becomes imperative to question the motive behind the submission of the various links. Again, though this witness had claimed that he considered the uploads on the IREV with the aim of impeaching the credibility of the process, just like the witness before him. he admitted that he did not examine the physical copies of the form EC8As of the polling units referenced in his witness statement and that from his examination of his meta-data, he could not ascertain whether the results of the respective polling units were properly collated in the forms EC8As, as all he did were on his computer.
This witness also admitted that he did not physically examine any of the BVAS machines and that he did not personally interrogate Festus Okoye, whose statement he had reacted to in his report. The low credibility of the witness was exposed when he claimed that the meta-data annexed as Exhibit A to his witness statement and admitted in evidence as Exhibit PCK I were not codes, but readable documents. However, this document is very obvious to this Honourable Court as consisting of unreadable/encrypted codes. For instance, we respectfully refer this Honourable Court to the first page of the document where the following inscriptions are contained:
Anambra-04-08-12-001 metafile
“polling_unit” : {
“Status” : ACTIVE
“generation” : 1,
“db_generation”: 1,
“is_accredited”: 1,
“_lid”: “4f0f4770c440353badb0fd4c”
With immense respect to the petitioners, it would have reasonably been expected that this witness who had reeled out a long resume, ought to have decrypted these codes for the appreciation of not just this Honourable Court, but the respondents also. In Ogidi v. State (2005) 5 NWLR (Pt. 918) 286 at 330, the Supreme Court held that the lingua franca of the court is English language and that the court will not be addressed in any language other than the English language-not even through undecrypted codes or meta-data.
Since his entire evidence is predicated on this meta-data, it follows that the witness did not intend for this Honourable Court to make any use of his testimony which are made up majorly of weblinks and codes. To further demonstrate the inconsistencies in the evidence of this witness, the witness admitted that he only made reference to three States in his witness statement, that is Anambra, Bauchi and Rivers, whereas, the last three pages of his meta-data refer to Benue State, thereby, amounting to a material inconsistency.
This witness also admitted that out of about over 176, 000 polling units in the presidential election constituency, there are only eight polling unit referenced and attached to his witness statement. Not only is the evidence of this witness inconsequential, assuming this Honourable Court even considers same, it would not have the requisite substantiality to impact on the election of the 2nd respondent and we urge the court to so hold.
PW12, gave the omnibus evidence in respect of the entire petition for the petitioners. Apart from the material admissions against the interest of the petitioners made by this witness, his evidence was basically that of hearsay and irrelevancies. Under cross examination, he admitted that apart from his polling unit and the situation room, he was nowhere else on the day of the election, while adding that he was neither a polling unit agent nor a collation agent for his party on the day of the election. Shown the certified true copy of the judgment of the Federal High Court in Labour Party v. INEC in Suit No: FHC/ABJ/CS/1454/2022, which was admitted by the court in evidence as Exhibit Xl. The implication of this judgment will be addressed in succeeding paragraphs of this address.
Shown the petition, the witness also admitted that he was unable to see any figure of unlawful votes credited to the 2′ and 3′ respondents and that his political party had only a total of 133,000 agents nationwide, out of 176, 974 polling units in the country. While confirming that he joined the Labour Party on 20th May, 2022, he stated that he joined the party before the 1″ petitioner, while the primary election held on 30th May, 2022.
The point to be noted from this piece of evidence is that even from the petitioners’ evidence, the case has been made that the petitioner was not a member of INEC, even as at 10 days to the conduct of the primary election, whereas, the register of members were required to have been submitted to INEC at least, 30 days to the primary election. The Register of members submitted on 25th April, 2022 and admitted in evidence as Exhibit RA18 corroborated this fact and the respondents’ witness, under cross examination, stated categorically, that the name of the In petitioner was nowhere to be found on the register of members for the 2′ petitioner.
The witness also admitted to the various unpredictability and imperfection of technological devices, including his telephone, generator and even power supply in Nigeria. This buttresses the point that the BVAS, being a technological device could be subject to any of these vagaries. The witness was referred to paragraph 100 of his witness statement where he had alleged that unlawful votes were credited to the 2nd respondent. Asked of the number of the unlawful votes credited to the 2′ respondent, he was unable to mention.
Similarly, he was referred to the reliefs claimed in his witness statement to show that though he wanted the court to return the petitioners who came third, the petition had sought such relief, without joining the candidate of the PDP, who came second and has not been made a party to the petition, despite the fact that such relief will adversely impact on his interest. The witness was also referred to the portion of the witness statement which reproduced the alternative relief (4), where he urged the court to hold that his candidate scored the highest number of valid votes scored. The witness admitted that he never knew what the referenced -highest number of valid votes were.
This witness also admitted that he did not open the various envelopes dumped on the court, because there was no time, and as such, he only opened some. Accordingly, we respectfully urge this Honourable Court to take note of the fact that the petitioners only succeeded in dumping their documents before this Honourable Court, without the requisite demonstration and linkage with the relevant portion of the case. The witness also admitted that several of the documents which he was relying upon in his witness statement were not tendered before the court. We urge the court to observe that this petition has been prosecuted without the relevant documents, in respect of which the court could have taken a decision in their favour.
Meanwhile, though the witness stated that he was going to rely on the report of the expert, we urge the court to note that this report was only made in May, 2023, while he had already made his statement since March, 2023. The same thing applies to the report of the forensic expert, which was allegedly made in April. FHC/ABJ/CS/1454/2022-Labour Party v. INEC delivered on 23rd January, 2023.
Before we round off on this issue, may we draw the court’s attention to a direct decision of the Federal High Court on the subject, that is the Unreported decision of the Federal High Court, Abuja Judicial Division, per Nwite, J., in FHC/ABJ/CS/1454/2022-Labour Party v. Independent National Electoral Commission, delivered on 23a January, 2023. For ease of reference, the question for determination in the Originating Summons is as follows: “Whether having regard to combined effect of Section 47(2), 50(2), 60(5) and 62(1)(2) and other relevant provisions of the Electoral Act, 2022 the Respondent can still insist on manual collation of results in the forthcoming general election.”
Declaratory reliefs were subsequently sought in line with the main question for determination. After considering the relevant provisions of the Electoral Act, the Regulations and Guidelines, as well as the Manuals, the learned trial judge held as follows: “Now a close reading of section 50(2) has provided for voting and transmission of results, to be done in accordance with the procedure to be determined by the Commission. This is to say that the Commission is at liberty to prescribe or choose the manner in which election results shall be transmitted…
In view of the foregoing, can the act of the defendant in collating and transferring election results manually in the forth coming 2023 general elections be said to be contrary to the relevant provisions of the Electoral Act, 2023? The answer can only be in the negative, as there is nowhere in the above cited sections where the Commission or any of its agents is mandated to only use an electronic means in collating or transferring of election results. If any, the Commission is only mandated to collate and transfer election results and number of accredited voters, in a way and manner deemed fit by it…By the provisions of section 50(2) and 60(5) of the Electoral Act, 2022, the correct interpretation of the said statute is that INEC is at liberty to prescribe the manner in which election results will be transmitted, and I so hold.”
While we admit that the above is a decision of the Federal High Court, we submit that it is a judgment in rem, which under section 287(3) of the Constitution, should be complied with by every power and authority in Nigeria, and also enforced throughout Nigeria. This is more particularly so, as the 1st petitioner and NEC are recurring parties, both in that case and in this petition. A similar situation as this, arose in Labour Party v. I.N.E.C. (Suit No. FHC/ABJ/CS/399/2011), where the Federal High Court per Kolawole, J (as he then was, now JCA), nullified section 141 of the Electoral Act, 2010 and no appeal to the Court of Appeal was lodged against that judgment, until it was relied upon at the Supreme Court in Wada v. Bello (2016) 17 NWLR (Pt. 1542) 374 at 433, by one of the parties. The Supreme Court invoked the decision and stated that the apex court itself, was bound by it, until set aside on appeal.
May we also refer your Lordships to the celebrated case of Rossek v. ACB Ltd. (supra) at 434-435, where the Supreme Court held that a judgment of any court of record is binding on all parties and persons, unless it is set aside by an appellate court. Interestingly, the judgment was also tendered as Exhibit Xl, before this Honourable Court, through PW12. Of more particular debilitating effect against the case of the petitioners, is the fact that this particular case was instituted by them before the elections, praying precisely, through declaratory reliefs for the same contentions which they have mounted before this Honourable Court. Judgment was given against them and that judgment is binding for all intents and purposes.
The judgment is both in personam and in rem. Rather than obeying and complying with the judgment as mandatorily enjoined under section 287(3) of the Constitution, they have come before this Honourable Court, under the guise of a petition to be parading and ventilating the same issues. They are not only taunting the court, but they have demonstrated outright disregard for the institution of the judiciary. Their petition is not only abusive, but also scandalous.
In Rosseck v. ACB (supra), the Supreme Court, per Bello, CJN and Ogundare, JSC, hammered on the proposition that no party or citizen is allowed to treat the judgment of any court with disdain or disrespect, and that if that is allowed, it will amount to invitation to anarchy. Our submission is that the petitioners are inviting anarchy by their ventilation of this issue of non-compliance based on non-transmission of results electronically, by INEC. The subject is also caught by the doctrine of res judicata, particularly, against the petitioners.
The point must be well situated that the parties and the course are the same, both in Exhibit X1 and before this Honourable Court and by the parties, we mean the petitioners, who were/are the plaintiffs in each of the cases. The law is also well crystallized that when the issue of abuse of process arises, it is the latter case that will be dismissed. This petition, being the latter case, is the one bound to be dismissed and we so urge.
In Arubo v. Aiyeleru(1993) , it was held that abuse of process is a Vey serious vice which demands no other treatment than dismissal. The situation in the celebrated case of Ojukwu v. Governor of Lagos State (1986) 1 NWLR (Pt. 18) 621 is not even as serious as what we have here, particularly, the reference to disobedience of, or non-compliance with judgment or order of a lower court by a party, who keeps on taunting the courts with further applications or supplications on the same subject. It is for the foregoing submissions that we urge the court to resolve this issue in favour of the respondents and against the petitioners.
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