Tribunal grants Atiku access to inspect electoral materials, rejects forensic exam request
The Presidential Election Petitions Tribunal on Wednesday granted the request by the Peoples Democratic Party and its presidential candidate, Alhaji Atiku Abubakar, to be allowed to inspect the electoral materials used by the Independent National Electoral Commission for the conduct of the February 23 polls.
But the three-man panel led by Justice Abdul Aboki unanimously rejected other prayers by the applicants seeking orders permitting them to, among others, photocopy and scan the electoral documents.
The tribunal also refused their requests to be allowed to conduct forensic examination and forensic analysis of the materials and have access to card reader data and information contained in the smart card reader, cloud and electronic storage used for the polls.
The two other members of the panel, Justices Peter Ige and Emmanuel Agim, agreed with the lead ruling by Justice Aboki.
Delivering the lead ruling, Justice Aboki said by virtue of the provisions of section 151 of the Electoral Act on which the applicants’ motion ex parte was anchored, Atiku and his party were only entitled to inspect the electoral materials and the certified true copies of all the materials used for the polls.
He said, “After a careful consideration of the application, a perusal of section 151 of the Electoral Act 2010 (as amended) and the decisions of this court in Aregbesola Vs Oyinlola 2009, Akintayo Vs Jolaoye and Hope Uzodinma Vs Osita Izunaso, it is hereby ordered:
“Leave is granted to the applicants to bring this application.
“The first respondent (INEC) shall allow the applicants to inspect the polling documents and be given the certified true copies of the polling documents used for the conduct of the presidential election across the country to enable them to institute and maintain their election petition.
“Prayers 4, 5, and 6 are hereby rejected.”
Rejecting the three prayers, the tribunal ruled that the plaintiffs could only be allowed to inspect the materials “at this stage.”
Justice Aboki held that the rejection of the prayers seeking permission to scan and photocopy the materials, and have access to card reader information, data in the cloud and electronic storage, would help “to protect the integrity of the materials in the custody of INEC.”
He added that the requests “cannot be regarded as inspection of polling materials under section 151 of the Electoral Act.”
He also explained that the Court of Appeal, in the case of Hope Uzodinma Vs Osita Izunaso, had set aside such orders when they were made by a lower election petitions tribunal on the grounds that “they were found to be outside section 151 of the Electoral Act.”
Justice Aboki added, “The orders violated the right of the respondents to fair hearing under section 36 of the Constitution.”
Atiku and his party came second behind President Muhammadu Buhari and his All Progressives Congress in the results of the February 23 poll declared by INEC.
Aggrieved by the outcome of the poll, Atiku and the PDP had as the first step required to start their legal battle to challenge the results, filed their ex parte motion before the tribunal seeking access to the electoral materials to enable them to file a petition before the tribunal.
Earlier on Wednesday, the three-man panel, in a pre-hearing session of the tribunal, entertained the applicants’ argument for about 45 minutes and rose.
It promised to return in one hour’s time to deliver its ruling but did not return until about three hours after.
The applicants’ legal team was led by Mr Livy Ozoukwu (SAN), but Chief Chris Uche (SAN), made submissions on behalf of the team.
As expected in an ex parte hearing, the respondents – President Buhari, his APC and the Independent National Electoral Commission – were not represented by their lawyers at the proceedings.
Uche said during the Wednesday’s hearing that his clients’ ex parte application was anchored on section 6(6)(a) and (b) of the Constitution, section 151 of the Electoral Act and paragraph 47(1),(2), and (3) of the Electoral Act.
He said it was to enable them to have access to information which would help them to file their petition against the outcome of the presidential election which INEC declared was won by Buhari and the APC.
He added that the ex parte motion contained six prayers, one of which sought the tribunal’s leave to bring the motion up in the tribunal’s pre-hearing session.
He added, “Prayers 2 to 6 are in summary seeking orders of this honourable court to allow the inspection and production of election documents used by the Independent National Electoral Commission for the conduct of the presidential election to enable the applicants to institute and maintain an election petition.”
Uche had insisted that there were authorities of the Court of Appeal which had interpreted section 151 of the Electoral Act to mean that petitioners could be granted all the prayers sought in the ex parte application.
Meanwhile, a former President of the Nigerian Bar Association, Dr Olisa Agbakoba (SAN), has said he is in support of Atiku’s decision to challenge the result of the February 23 presidential poll in court.
He, however, expressed doubts that Atiku would get justice because “President Muhammadu Buhari has subverted the Supreme Court by the removal of the Chief Justice of Nigeria, Honourable Justice Walter Onnoghen, and the appointment of the acting Chief Justice of Nigeria (Justice Muhammad Tanko).”
Agbakoba, who had earlier urged Atiku not to go to court to challenge the poll result, said his earlier advice was based on his view that the PDP presidential candidate would face “an uphill task, given the circumstances of challenging election results” in the country.
He said from his experience as one of Nigeria’s experienced election petitions lawyers, the burden of proof to succeed in an election petition “is unfairly huge.”
“We first have to prove that there are electoral irregularities and in my view, once you prove this, you should succeed. Unfortunately, even if you prove electoral irregularities you will have to show how that affected the results of the election.
“Remember that the gap between former Vice-President, Atiku Abubakar, and President Muhammadu Buhari is about four million votes. It is clear to me that the presidential election results were manifestly riddled with electoral irregularities.
“Now that former Vice-President Atiku Abubakar has approached the court, it is important to emphasise that he is constitutionally entitled to do so. My personal advice has become irrelevant. I fully support and wish former Vice-President Atiku Abubakar every success,” Agbakoba said.
He, however, bemoaned the delay by the National Judicial Council in dealing with the case of the suspended Justice Onnoghen and the acting CJN, Justice Tanko.
He said, “My perception is that we need to resolve the status of the Supreme Court. I wonder what is taking the National Judicial Council so long. I am also worried about the historical precedent, as no petition on presidential election result has ever succeeded.”
Also, a human rights lawyer, Mr. Femi Falana (SAN), said Atiku had “insurmountable legal obstacles” to face at the Presidential Election Petitions Tribunal.
Falana, however, said in a statement that the former Vice-President should not be blackmailed not to take the legal step, adding that the calls prevailing on him not to approach the tribunal were uncalled for.
He recalled that President Buhari who was declared winner of the February 23 election had challenged his losses in court in the successive presidential elections of 2003, 2007 and 2011.
The legal icon also noted that many APC members who lost the just-concluded National Assembly elections had announced plans to challenge the return of their opponents by INEC.
He however said the failure of the successive PDP and the APC-led Federal Governments to reform the electoral process had created insurmountable legal obstacles for election petitioners
Falana said, “The campaign that Alhaji Atiku Abubakar should not seek redress is totally uncalled for. Aggrieved by the general elections of 2003, 2007 and 2011 conducted by INEC, Candidate Muhammadu Buhari sought redress in court.
“The chairman of the APC, Adams Oshiomhole and other APC leaders have had cause to claim their mandate through the court.
“Even some APC members who lost the just-concluded National Assembly elections have announced plans to challenge the return of their opponents by INEC.
“Therefore, Alhaji Atiku Abubakar should not be blackmailed or begged by any group of people not to challenge the presidential election held in the country on February 23, 2019.
“Regrettably, however, the failure of the PDP and the APC-led Federal Government to reform the electoral process has created insurmountable legal obstacles for election petitioners.”
He added, “The frustration of election petitioners has been compounded by several judicial authorities,” with some decisions holding that “an election cannot be questioned on grounds of corrupt practices.”
He said judicial authorities had upheld many elections despite the fact that the polls were marred by malfeasance.
Falana said, “For instance, a petitioner is required to prove that there is substantial non-compliance and that the non-compliance has substantially affected the results of the election.
“In Yussuf v Obasanjo, it was held that an election cannot be questioned on grounds of corrupt practices. In Falae v Obasanjo, it was held that it has to be proved that financial inducement was authorised by the winner of an election.
“In Buhari v Obasanjo it was held that the onus of proving electoral malpractice rested on the petitioner.
“Several fraudulent elections have been upheld under the doctrine of substantial compliance.
“In several cases winners of fraudulent elections that were annulled were allowed to take part in rerun elections ordered by the courts.”
Meanwhile, the Buhari Media Organisation has accused the PDP and Atiku of deliberately inciting their supporters with the false impression of a “stolen mandate.”
This, it said, is a calculated attempt by the opposition to cause a breach of the peace after its candidate was rejected by a large majority of eligible voters on February 23.
The PDP National Chairman, Prince Uche Secondus, had on Tuesday led a peaceful protest to INEC office in Abuja to submit a letter of grievance.
The party accused INEC of colluding with the APC to rig the February 23 Presidential election in favour of President Buhari.
BMO in a statement signed by its Chairman, Niyi Akinsiju, and Secretary, Cassidy Madueke, said the PDP’s claim was an assault on the sensibility of Nigerians.
“We find it worrisome that the PDP has been regaling Nigerians with hollow tales of a stolen mandate even before INEC completed the announcement of the Presidential election result.
“Equally worrisome is the attempt to equate their grouse with that of genuine pro-democracy groups over the June 12, 1993 presidential election, and thereby nudge their supporters to take to the streets in protest.
“The PDP’s ploy to discredit the Presidential election as the worst in Nigeria’s political history is clearly dead on arrival, as it is a known fact that many of the elections conducted under the PDP’s watch did not measure up to acceptable global standards,” it said.
The pro-Buhari group said it was surprised that the PDP was talking about a mandate with an un-electable presidential candidate that could not win even his polling unit.
“Is it not amusing that the PDP is claiming the mandate of an election that it was clearly unprepared for?
“Here is a party that did not deem it necessary to campaign in 16 states and the FCT, out of arrogance, yet it believes it did better than a ruling party that embarked on a three-layered political campaign led by President Muhammadu Buhari in every part of the country.
“Even in terms of pedigree, the PDP has little or nothing to show for its 16 years in power at the centre, aside from abandoned infrastructural projects, yet it wants the world to believe that majority of Nigerians were ready to trade the sure and steady progress under President Buhari for a return to locust years.”
BMO urged Atiku and his party to seek redress in court rather than encourage their supporters to engage in acts of disobedience.
It said, “This is a party that adopted a campaign theme of going to court to “claim its mandate” soon after President Muhammadu Buhari was declared winner but appears now to be dragging its feet.
“So it would be appropriate for the former Vice-President, as a democrat that he says he is, to rein in his lieutenants and advise them to respect constituted authorities despite the bitterness of the electoral loss.
“We hope that the subtle call to protest is not in line with what some PDP chieftains had, few weeks ago, referred to as the “Venezuelan option.”