Atiku heads to Supreme Court with 35 grounds in last push to sack Tinubu
By Jeph Ajobaju, Chief Copy Editor
Atiku Abubakar has filed an appeal at the Supreme Court against the judgment of the Presidential Election Petition Court (PEPC) which affirmed the election of Bola Tinubu as President on September 6.
Atiku was the presidential candidate of the Peoples Democratic Party (PDP) in the February 25 ballot, Tinubu contested on the platform of the All Progressives Congress (APC).
Atiku’s appeal is hinged on 35 grounds, among them the PEPC verdict on electronic transmission of election results and 25 per cent of votes in the Federal Capital Territory (FCT), Abuja.
Atiku and the PDP, the appellants, are also aggrieved the PEPC failed to examine grave allegations against Tinubu which would have disqualified him outright if scrutinised and accepted by the Justices.
Two of the strongest allegations are Tinubu’s dual citizenship and certificate forgery.
Atiku alleged at the PEPC that (a) Tinubu voluntarily acquired the citizenship of Guinea and (b) lied on oath in his Independent National Electoral Commission (INEC) form he did not have dual citizenship – either of which crime disqualifies him, going by the Constitution.
Atiku also alleged at the PEPC that Tinubu committed identity theft, age falsification, certificate forgery, and perjury – having
- Allegedly used the diploma transcript of a “female” “Bola A. Tinubu” to gain admission to Chicago State University (CSU), if the President ever attended CSU at all.
- Female Bola Tinubu was born in 1954, whereas male Bola Tinubu was born in 1952.
- Male Bola Tinubu used the credentials of female Bola Tinubu to forge the CSU degree certificate of female Bola Tinubu.
- Male Bola Tinubu swore on oath in his INEC forms the credentials belong to him.
By the Constitution and by the Electoral Act, any of these four allegations – once proven – disqualifies male Tinubu from the office of President.
The PEPC, headed by Justice Haruna Tsammani, unanimously held that Atiku and other petitioners failed to substantiate their allegations of rigging in the vote conducted by the INEC.
The INEC had declared Tinubu scored the highest number of votes in the election, followed by Atiku, and Peter Obi of the Labour Party (LP).
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Reliefs sought
Atiku’s Notice of Appeal dated September 18 was filed by his lead counsel, Chris Uche, SAN, urged the top court to allow the appeal and set aside the judgment of the PEPC, per reporting by The PUNCH.
The Supreme Court to determine that Tinubu was not duly elected by a majority of votes cast in the election and therefore, “the declaration and return of the 2nd respondent [Tinubu] by the 1st respondent [INEC] as the winner of the presidential election conducted on February 25, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.’’
Determine that Tinubu was at the time of the election not qualified to contest the said election.
Declare that Atiku, the 1st appellant, “having scored the majority of lawful votes cast in the presidential election, be returned as the winner of the said election and be sworn in as the duly elected President of the Federal Republic of Nigeria.’’
In the alternative, an order directing the INEC to conduct a run-off election between him and Tinubu.
Grounds of appeal
The tribunal erred by refusing to uphold his [Atiku’s] argument on the compulsory electronic transmission of results as contained in the Electoral Act 2022.
“The lower court erred in law when it refused to uphold the mandatoriness of electronic transmission of results for confirmation 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.’’
The Electoral Act introduced technology in the conduct of elections, particularly in the transmission and collation of results, being part of the election process easily susceptible to manipulation and compromise.
“Failure to comply with the said prescription of electronic transmission of the result 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 the results of the election in the polling units by the Presiding officers in the manner prescribed by INEC.”
The PEPC erred in law when, despite the clear provisions of the enabling statutes, namely the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act 2022, the Regulations and Guidelines for the Conduct of Election, and the election manual, it held that the requirement of electronic transmission of the result of the election directly from the polling units to the INEC collation system was not a requirement of the Electoral Act 2022.
The lower court erred in failing to hold that the non-use of electronically transmitted results by INEC’s collation officers and returning officers for the collation and verification of election results before announcement, constitutes non-compliance with the mandatory provisions of the Electoral Act 2022.
The PEPC was wrong to shift the burden of proof to him, referencing page 644 of the PEPC judgment.
The lower court erred in law when it failed to nullify the presidential election on the grounds of non-compliance with the Electoral Act 2022 “when by evidence before the court, the 1st respondent conducted the election based on very grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the “doctrine of legitimate expectation.”
The Electoral Act 2022 makes the use of Bi-modal Verification Accreditation System (BVAS) and INEC’s Results Viewing portal mandatory in the conduct of the 2023 general election, [but] INEC through its Chairman, Prof Yakubu Mahmoud, publicly gave guarantees, undertakings, clear and unambiguous representations to candidates and political parties that the polling units results were mandatorily required to be electronically transmitted or transferred directly by the presiding officers.
INEC conducted the said presidential election based on “the gross misrepresentation” to the appellants and the general voting public that the presiding officers were going to electronically transmit the results of the said election directly from the polling units to the 1st respondent’s collation system.
“Contrary to the above unambiguous representations, undertakings, and guarantees, INEC neither deployed the electronic transmission of election results nor the electronic collation system in the said election, sabotaging the raison d’etre for the enactment of the new Electoral Act 2022 and the introduction of the technological innovations.
“Rather than hold [INEC] as a public institution accountable to the representations that it made pursuant to its statutory and constitutional duties which created a legitimate expectation on the part of the appellants, the lower court wrongly exonerated [INEC] of any responsibility by holding that the use of the technological innovations to guarantee transparency was not mandatory.”
The PEPC [erred] for saying that in a presidential election, polling one-quarter or 25 per cent of total votes cast in the FCT was not a precondition for a candidate to be deemed as duly elected under Section 734 of the Constitution.
The PEPC [erred] for striking out his [Atiku’s] witnesses’ statements on oath.
“The witnesses’ statements on oath and the reports were products of the inspection conducted pursuant to the order of the court, and could not have been produced in advance before the filing of the petition; same being dependent on access to electoral documents in the possession of an adverse party.
“The PW 12, PW L3t PW L4, PW 15, PW 16, PW 17, PW 18, PW 23, PW 24, and PW 25 were presiding officers, being ad hoc staff of INEC who functioned at the polling units, who could only testify upon orders of subpoena, being staff of an adverse party, and could not have prepared witness statements on oath in advance before the filing of the petition.”
The lower court erred in law when it held that Order 3, Rules 2 and 3 of the Federal High Court (Civil Procedure) Rules, 2019 permitting parties to file witness statements of subpoenaed witnesses after commencement of action did not apply to election petitions.
The grounds of qualification and disqualification to contest an election are circumscribed by the provisions of the Constitution and such grounds are exhaustive.
The lower court was wrong to have dismissed the testimonies of [the appellants’] collation agents as hearsays, citing page 657 of the judgment.
The lower court erred in law because “it failed to give effect to section 137 of the Electoral Act 2022 which obviated the requirement of calling of oral evidence where the non-compliance is manifest on the face of the certified true copy of the electoral document.’’
All the electoral documents in question held to have been dumped on the court were duly certified true copies of electoral documents obtained by the appellants from INEC itself.
The PEPC erred by claiming that “a document made in anticipation of litigation or during its pendency by persons interested is rendered inadmissible in evidence by virtue of section 83 (3) of the Evidence Act 2011.’’
PW21 and PW26 who prepared the said documents and through whom they were tendered are experts.
“These exhibits were products of court-ordered inspection of electoral documents in the possession of the 1st respondent. The said provision of section 83(3) of the Evidence Act 2011 does not apply to the evidence of experts.”
The PEPC erred for not evaluating the appellants’ exhibits and for not admitting Senator Dino Melay’s evidence, which the PEPC described as mere hearsay.
The PEPC erred for stating that the evidence of PWs 19, 20, and 22 did not advance the case of the petitioners, noting the lower court used disparaging words against the applicants in its judgment.