The Supreme Court has slated Monday, October 23 for a hearing of the joint appeal filed by former Vice President Abubakar Atiku, the Presidential candidate of the Labour Party, Mr Peter Obi and the Allied Peoples Movement (APM) challenging the judgement of the Presidential Election Petitions Court (PEPC) which upheld the victory of President Bola Tinubu of the All Progressives Congress (APC).
The PEPC had, in a judgement delivered on September 6, 2023, dismissed all the petitions challenging the declaration of Tinubu as the winner of the February 25 presidential election on the ground that the petitioners failed to prove the allegations contained in their petitions.
Dissatisfied with the judgement of the lower court, the Petitioners approached the apex court with an appeal seeking the setting aside of the judgement.
Obi and his party had, in a Notice of Appeal dated September 18, 2023, predicated on 51 grounds, pray the Supreme Court to set aside what they called, “the perverse judgement” of the lower court.
The Notice of Appeal filed on behalf of the petitioners’ lead counsel, Dr. Livy Uzoukwu (SAN) said, the lower court erred in law, thereby reached a wrong conclusion when it held that the petitioners appeared to have conceded in their averments that, they have specified the particular polling units where the alleged irregularities and malpractices occurred or specify the figures of the votes or scores which they alleged have been suppressed, deflated or inflated.
Obi and LP said the Justices of the court below erred in law when they held that, “Where the dispute involves the election in as many as 895 polling units, this pleading in the petition which alleged electoral malpractices, non-compliance or offences in some polling units, or several polling units cannot be said to have met the requirements of pleadings as stipulated in paragraph 4(1)(d) of the first schedule of the Electoral Act, 2022 or order 13 rules 4(1), 5 and 6(1) of the Federal High Court (Civil procedure) Rules 2009”.
That, the court below overlooked the fact that the petition ought to be read as a whole to discover the complaints or grouse of the applicant and that the lower court failed to take into account that the appellants listed the states and specific areas complained about in the petition.
They accused the court below of resorting to undue technicalities in its consideration and determination of the petition, where they challenged Tinubu’s declaration as the winner of the presidential election.
In ground six, the appellants said the court below erred in law when it holds that certain paragraphs of their reply to Tinubu and Vice President Kashim Shettima introduced new issues contrary to paragraph 16(1) of the first schedule to the Electoral Act, 2022.
In ground seven, they said the lower court erred in law and occasioned a miscarriage of justice when it held that, the onus was on the appellants to prove that INEC failed to comply with the mandatory requirement of Section 73(2) of the Electoral Act in the conduct of the disputed presidential election.
According to the appellants, the court below-overlooked Section 74(1) of the Electoral Act, which only mandates the Resident Electoral Commissioner in a state where the election is conducted to avail any party to such election, the certified true copies of any election materials applied for within 14 days.
That the PEPC erred in law when it held that the appellants were unable to establish their allegations of non-compliance by INEC with Second 73(2) of the Electoral Act, among other grounds.
The appellants said the justices of the lower court erred in law and occasioned a grave miscarriage of justice when they abdicated their primary duty of making findings on the material issue of estoppel they raised against INEC on the electronic transmission of polling units results to I-Rev.
Allied Peoples Movement (APM), on its part, filed a ten-ground of Appeal, challenging the decision of the PEPC and asked the apex court to nullify Tinubu’s election.
The party said, the PEPC was in errors in law when on September 6, 2023, it struck out its petition as pre-election matter and for being incompetent.
APM in its Notice of Appeal filed by its counsel, Chukwuma – Machukwu Ume (SAN), asked the apex court to set aside the judgement of the lower court for its numerous errors in law.
It said, Sections 131 and 142 (1) of the 1999 Constitution are inextricably linked and neither can be confined as a pre-election matter, as these qualifications are conditions precedent for being elected to the office of President.
The appellant’s petition was not one founded solely on nomination, but primarily that the 3rd respondent (Tinubu) contested the Presidential Election without a lawful associate running as his Vice President.
That the withdrawal of (Masari) 5th respondent and the expiry of the 14 days permissible for changing a withdraw or dead candidate under Section 33 of the Electoral Act 2022, made the 3rd respondent’s election and return invalid.
The party said the PEPC abandoned its duty and Jurisdiction of hearing and determining its question of, if President Bola Ahmed Tinubu and Kashim Shettima were validly elected to the office of President and Vice President under the Constitution as stipulated in Section 239(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The counsel asked the apex court to hold that the PEPC became interested in technical issues solely beneficial to Tinubu and Shettima who are the 3rd and 4th respondents respectively in the appeal, rather than concentrating on whether 3rd and 4th respondents were Validly elected.
APM contends that “Validly Elected” encompasses being qualified to contest the election, adding that a valid election includes the threshold qualifications and disqualification as stipulated in the Constitution.
It said the approach of the court below was to avoid the weighty issue of validly elected through imputing technical elevation pre-election issues.
APM, therefore, prayed the Supreme Court to allow the appeal and hold that Tinubu was not qualified to contest as the Presidential candidate of the APC, the 2nd respondent as of 25th February 2023 when the presidential election was conducted, having violated the provisions of Section 142 (1) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
The party also prayed for a declaration that the return of Tinubu by the INEC, as the President-elect of the Federal Republic of Nigeria is null, void of no legal effect whatsoever.
That the withdrawal of the 5th respondent (Kabiru Masari), as Vice Presidential candidate to Tinubu by the operations of the law amounted to automatic withdrawal and invalidation of the candidate of All Progressive Congress (APC).
APM therefore asked for an order nullifying and voiding all votes scored by APC in the Presidential Election of February 25 and a further order directing INEC to return the second highest score at the election as the winner of the presidential election.
On their part, Atiku and his party, in a Notice of Appeal hinged on 35 grounds, insisted that the lower court, in its judgment delivered by Justice Tsammani committed grave error and miscarriage of justice in its findings and conclusion in their petition challenging the declaration of Tinubu as President by INEC.
The Notice of Appeal just filed by the lead counsel to the appellants, Chief Chris Uche (SAN) is praying the Supreme Court set aside the whole findings and conclusions of the PEPC on the grounds that they did not represent the true picture of the grounds of his petition.
Amongst others, the former Vice President and his party maintained that the lower court erred in law when it failed to nullify the presidential election held on February 25, 2023, on the grounds of non-compliance with the Electoral Act, 2022, when by evidence before it, 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”.
According to the appellants, PEPC erred in law when it refused to uphold the mandatoriness of electronic transmission of results for confirmatory and verification of final results introduced by the Electoral Act, 2022 for transparency and integrity of results in accordance with the principles of the Act and held that the petitioners were not able to prove that Electoral Act or guidelines made it mandatory for electronic collation system by INEC.
They held that the Electoral Act introduced technology in the conduct of elections, particularly in the transmission and collation of results, being the part of the election process easily succeptible to manipulation and compromise.
The appellants told the apex court that, it was not in dispute that INEC failed to electronically transmit the results of the presidential election from polling units to both the collation system and the I-Rev on the day of the election and added that the bypass of the use of the prescribed verification technology was nationwide, affecting the entire polling units and collation of results all over the country and substantially affected the outcome of the presidential poll.
According to Atiku and the PDP, “Failure to comply with the said prescription of the electronic transmission of the results of the said election in the polling units by the presiding officers amounts to non-compliance with the provisions of Section 60(5), Section 64(4) and (5) of the Electoral Act, 2022, which requires the transfer of results of the election in the polling units by the presiding officers in the manner prescribed by INEC”.
They held that Section 60(5) of the Electoral Act makes it mandatory for presiding officers to transfer election results in the polling units together with the total number of accredited voters in such manner as INEC may determine.
On the requirement of one-quarter of votes scored in the Federal Capital Territory, Abuja, the appellants said the lower court erred in law when it held that, “such that, if a candidate polls 25 percent or one-quarter of votes in two-thirds of 37 states of the Federation (FCT, Abuja inclusive), the presidential candidate shall be deemed to have been duly elected, even if he fails to secure 25 percent of the votes cast in the FCT, Abuja”.
They also noted that the PEPC erred in law by striking out the witness statements on oath and the entire evidence of the appellants’ subpoenaed witnesses.
The appellants want the apex court to allow their appeal, set aside the September 6, 2023 judgement of the lower court in petition number, CA/PEPC/05/2023 and grant all the reliefs and/or their alternative reliefs.
They want the apex court to hold that Tinubu was not duly elected by a majority of lawful votes cast in the presidential election and therefore, Tinubu’s declaration and return by INEC as the winner of the presidential election is unlawful, wrongful, unconstitutional, null and void and of no effect.
That, it may be determined that Tinubu’s return as the winner of the February 25 presidential election by INEC was wrong, null and void, having not satisfied the requirements of the Electoral Act, the Constitution, which mandatorily requires Tinubu to score 25 per cent of lawful votes cast in each of, at least two- thirds of all states in the Federation and the FCT, Abuja.
That, Tinubu was, at the time of the presidential election not qualified to contest and that, Atiku, having scored the majority lawful votes cast at the presidential election be returned as the winner of the said election and should be sworn in as the duly elected president of the Federal Republic of Nigeria.
In the alternative, the appellants want the order of the apex court, directing INEC to conduct a re-run election between Atiku and Tinubu.
In further alternative, Atiku and his party want the Supreme Court to nullify the February 25 presidential election and order a fresh election and any other order that the court may seem fit to make in the interest of justice.
The Court will also hear Atiku’s motion seeking to bring fresh evidence to prove that Tinubu submitted a forged certificate to INEC in aid of his qualification for the February 25 presidential election.
Atiku’s lawyers and those of President Tinubu will address the Supreme Court panel of seven Justices on whether it has powers to grant the request.
Also billed to address the Court on the contentious request are lawyers from the ruling APC and INEC who are joint respondents in the motion.
They are to argue before the Supreme Court and cite relevant laws on whether such request is grantable under the country’s Constitution and the Electoral Act 2022.
The documents Atiku sought to tender are the academic records of Tinubu, which were handed over to him by the Chicago State University (CSU) on Monday October 2, 2023.
The 32-page documents were released to the former Vice President on the orders of Judge Nancy Maldonado of the District Court of Illinois, Eastern Division, Illinois, United States of America.
The US court had ordered the CSU to release the said documents to Atiku despite Tinubu’s objection because the court was convinced that it would help Atiku establish his allegation of forgery and lying on oath against Tinubu, who won the February 25 presidential election.
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