Alex Enumah in Abuja
The presidential candidate of the Peoples Democratic Party (PDP) in the February 23 election, Alhaji Atiku Abubakar, and his party will today kick-start the legal fireworks to prove their petition against the re-election of President Muhammadu Buhari.
The stage for the commencement of the legal fireworks was set yesterday in Abuja following the adoption of the modalities and structure for the hearing of the petition reached by all parties in the petition.
The Presidential Election Petition Tribunal (PEPT) wednesday also refused to grant Atiku’s request to reopen the application of the All Progressives Congress (APC) against his petition because the application lacked merit.
Counsel to parties in the petition had on July 1 agreed on how they would conduct hearing in the petition of Atiku and the PDP against the re-election of Buhari.
Atiku and PDP are among three other petitioners challenging the outcome of the presidential poll that handed a second term to the president.
Some of the grounds on which the petition is anchored include substantial non-compliance with the electoral laws and intimidation.
Atiku and PDP in the petition marked: PEPT/02/2019 and filed on March 18, are seeking alongside three other petitions the nullification of the victory of Buhari in the presidential poll.
However, at yesterday’s proceedings, which signalled the end of the pre-hearing session, the Chairman of the panel, Justice Mohammed Garba, informed the court that the proposition of the lawyers as regarding the modalities of the hearing of the case has been adopted and hearing in the petition would start today.
However, the tribunal refused to grant Atiku’s request to reopen the APC application against his petition because the application lacked merit.
Atiku and the PDP in a motion filed on June 24, had asked the tribunal to expunge the proceedings of June 11 from the court’s record, wherein the court reserved ruling in the APC’s motion seeking dismissal of the main petition for being incompetent and lacking merit.
The tribunal after taking submissions of counsel in the matter on July 1 had fixed yesterday for ruling in the application.
However, the five-member panel in a unanimous decision refused to grant Atiku’s request because the applicants failed to adduce any cogent reasons why the proceedings of June 11 as relating to the APC’s motion of May 15 should be set aside.
The petitioners had predicated the application on the grounds that the tribunal had on June 11 allowed the APC to withdraw a motion in which they had already filed a counter affidavit and went on to adjourn ruling in the other motion they didn’t respond to.
The APC, in two separate motions dated May 14 and 15, had urged the tribunal to dismiss Atiku and PDP’s petition or strike out certain parts of the petition for being incompetent and lacking merit.
The petitioners, however, filed a counter affidavit opposing the motion of May 14 alone and filed a notice of preliminary objection against the two motions.
However, when the matter was called on June 11, counsel for the APC, Prince Lateef Fagbemi (SAN), orally applied for the withdrawal of the motion of May 14 and moved that of May 15, urging the tribunal to hold that the petitioners did not file a counter to their motion.
Lead counsel to the petitioners, Dr Levy Uzoukwu (SAN), orally told the tribunal that the third respondent did not notify them before the withdrawal of the motion of May 14 for them to respond to that of May 15.
He added that the petitioners filed a notice of preliminary objection to the motions for being abuse of court process.
Delivering his ruling, Justice Garba held that the mandatory seven days for Atiku to respond to APC’s motion on the competence of his petition had expired.
He ruled that there is evidence that Atiku’s legal team was served with APC’s motion on May 16, a day after it was filed.
He said it was a fatal error for them to have chosen and elected to file only notice of objection while refusing to file counter affidavit as required by law to dispute the claims of the APC.
Furthermore, the tribunal disagreed with Atiku on the issue of fair hearing since his lawyers were present in court during proceedings but chose to conduct their petition in their own way.
“We agreed that the court has the power to exercise discretion but in the instant case, the discretion has to be exercised judicially and judiciously; and since the petitioner in this matter did not advance cogent and verifiable reasons for exercising discretion in his favour, we hereby refuse to do so,” the tribunal ruled.
The tribunal also agreed with Fagbemi that the application did not meet necessary requirements for which a court can set aside its own decision.
The tribunal stated that in the instant case, no evidence was advanced by the petitioners to justify their failure to comply with mandatory seven days within which to respond or to oppose the motion duly served on them on May 16.
The tribunal added: “From the established fact, the petitioner failed to make out case for setting aside proceedings of June 11 and also failed even up till today to file counter affidavit. Therefore, the motion by the petitioner that his argument be reopened is bound to fail and is hereby dismissed for lacking in merit.”
The APC had in the motion of May 15, prayed the tribunal to void and strike out Atiku’s petition on various grounds of alleged irregularities and non-compliance with the Legal Practitioners Act, or in the alternative strike out several paragraphs that were not supported by facts and laws.
Among others, Fagbemi prayed the tribunal to remove 10 states in the list of states where Atiku alleged electoral malpractices took place in the February 23 presidential election.
The states are Borno, Yobe, Niger, Katsina, Bauchi, Jigawa, Kaduna, Kano, Gombe and Kebbi.
The grouse of APC were that the petitioners failed to disclose the specific polling units where the alleged infraction took place thereby making their claims imprecise, nebulous and vague.
Fagbemi also applied for order of the tribunal to strike out paragraphs where allegations of thuggery, arrest, intimidation and coercion were made against Vice President Yemi Osinbajo, the Nigerian Army, the Nigeria Police and several other individuals who were not joined as defendants in their petition.
APC also applied that the claim by Atiku and the PDP that Buhari was not educationally qualified to stand for the presidential election be expunged from their petition because it is a pre-election matter which the tribunal has no jurisdiction to adjudicate upon.
Besides, APC also asked the tribunal to strike out the petition for failure to comply with mandatory provisions of paragraph 4 and 7 of the first schedule to the Electoral Act 2010 and section 134 of the 1999 Constitution.
The APC similarly faulted the petition for being incompetent and in gross violation of section 2 and 24 of the Legal Practitioners Act and therefore urged that the petition be struck out together with the list of documents and list of witnesses to be relied upon by the petitioners.