The presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar, has filed an appeal at the Supreme Court seeking to nullify the judgement of the Presidential Election Petition Court which affirmed President Bola Tinubu’s victory at the 25 February presidential poll.
A five-member panel of the Presidential Election Petition Court led by Haruna Tsammani, on 6 September, dismissed Atiku’s petition challenging Mr Tinubu’s election.
The court, in the judgement, similarly dismissed the petition filed by the presidential candidate of the Labour Party, Peter Obi, and a political party the Allied People’s Movement (APM).
The five-member court held that the petitioners failed to prove in their separate suits allegations of electoral fraud against Nigeria’s electoral commission, INEC and Mr Tinubu.
But Atiku and Mr Obi vowed to appeal the outcome of the suits at the apex court.
In making real his vow, Atiku filed a notice of appeal premised on 35 grounds.
The former Nigeria’s Vice President, through his team of lawyers, led by Chris Uche, a Senior Advocate of Nigeria (SAN), argued that the PEPC’s judgement occasioned “grave error and miscarriage of justice” in its legal reasoning by upholding Mr Tinubu’s election as president.
In the document dated 18 September filed at the Supreme Court, Mr Uche contended that the presidential election court failed to adequately evaluate his client’s evidence before reaching its conclusions.
The lawyer faulted the court’s use of “disparaging words” against Atiku which “evinced bias.”
In another ground of appeal, Mr Uche told the Supreme Court that the lower court’s conclusions “did not represent the true picture of the grounds of his petition”.
He further contended, amongst other issues, that the presidential election court erred in law when it “failed to nullify the presidential election held on 25 February 2023 on the grounds of non-compliance with the Electoral Act, 2022, when by evidence before the tribunal, INEC conducted the election based on grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the “doctrine of legitimate expectation.”
Electronic transmission of results
He further argued that the lower court erred by refusing to uphold the mandatoriness of electronic transmission of results for confirmation and verification of final results introduced by the Electoral Act 2022″ aimed at boosting election “transparency and integrity.”
The PEPC had in its verdict said Atiku was unable to prove that the Electoral Act compels INEC to collate the election results using the electronic collation system.
Atiku’s lawyer referred the Supreme Court to INEC’s sole witness, Lawrence Bayode’s testimony while being cross-examined that the “deployment of the Bimodal Voters Accreditation System (BVAS) and IReV was to guarantee the transparency of the electoral process and the integrity of the results.”
Pointing out another grouse with the PEPC, Mr Uche faulted the court’s “shifting of the burden of proof” on Atiku instead of INEC concerning the issue of non-compliance with electoral laws.
He explained that presiding officers from polling units having confirmed “selective transmission of” parliamentary election results as against the presidential poll, “the onus shifted to” INEC “to call evidence to explain the selective transmission” and “the vague excuse of technical glitch.”
Referencing the Electoral Act, the appellant said the lower court erred when it failed to to invalidate Mr Tinubu’s election on account of INEC’s conduct of the poll in “grave and gross misrepresentation” of the Electoral Act and “doctrine of legitimate expectation.”
25 per cent of FCT vote
The lawyer also anchored the appeal on the issue of Mr Tinubu’s failure to 25 per cent votes in two-thirds of the states of Nigeria and the Federal Capital Territory (FCT). Mr Uche said the interpretation of the word “and” I. section 134(2)(b) of the constitution is “conductive and not disjunctive.”
He said the provisions of the section are “clear and unambiguous”, adding that a “literary and and ordinary construction will best define the intention of the framers of the constitution.”
Neither Mr Tinubu nor Atiku scored up to 25 per cent votes in the FCT. Labour Party’s Peter Obi won majority votes of lawful votes cast in Abuja by landslide.
But Atiku is urging the court to order a rerun of the presidential election on account of Mr Tinubu’s inability to garner 25 per cent votes in the FCT.
Expunging of 13 witnesses’ evidence
Atiku further contended that the lower caused “grave injustice” when it “expunged” the witness statements on oath of 13 out of his 27 witnesses from its records.
The presidential election court in its ruling had said Atiku failed to file his petition alongside the witnesses’ statements on oath.
“The long and short of all the foregoing is that the objection of the respondents to the witnesses statements…which did not accompany the petition as required by …the First Schedule of the Electoral Act, is hereby sustained and the said witnesses statements, being incompetent are hereby struck out and expunged from the records of this court,” the PEPC had ruled.
Contesting the issue, Mr Uche said the PEPC expunged the “entire evidence” of the 13 “material witnesses” including Mike Enahoro-Ebah who tendered Mr Tinubu’s academic records from the University of Chicago in the US.
Giving reasons for the non-inclusion of the witnesses’ statements on oath in the petition at the point of filing, Mr Uche explained that “these witnesses were essentially persons whose witnesses’ statements on oath could not be practically ready at the time of preparing and filing the petition.
He also argued that PEPC’s discountenance of Atiku’s statistician’s report was wrong.
The lawyer informed the Supreme Crourt that it had during the pre-hearing sessions of the PEPC informed the court that it was going to call a statistician and would be relying on the statistician’s report.
“There was nothing unfair or negating the rule since INEC and Mr Tinubu as well as other respondents in the suit cross-examined the statistician and interrogated his report,” the lawyer said.
Atiku urged the court to set aside the lower court’s affirmation of Mr Tinubu’s election and order INEC to conduct a second election (run-off) between him and Mr Tinubu.
He urged the court to declare that Mr Tinubu did not secure majority of lawful votes cast during the presidential election on 25 February, 2023.
The former Vice President also prayed the court to hold that Mr Tinubu was not qualified to vie for Nigeria’s Presidency at the time he did on account of his conviction in the US for alleged drugs trafficking.
In addition, the appellant urged the court to set aside the decision of the lower which affirmed Mr Tinubu’s victory.
“The election to the office of the president of …Nigeria held on 25 February 2023 be nullified and a fresh election (rerun) ordered,” Atiku prayed in the alternative.
Mr Tinubu and his party, the APC, as well as INEC we have the opportunity to file their respondent’s briefs to oppose the appeal.
Meanwhile, no date has been slated for the hearing of the appeal by the Supreme Court.
Mr Obi is expected to file his own appeal before the 14 days window from the day of judgement as set by law closes.
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