Is Atiku’s Petition Progressing?

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Atiku Abubakar

In view of some of the recent developments at the Presidential Election Tribunal, the question on whether or not candidate of the Peoples Democratic Party in the 2019 elections, Alhaji Atiku Abubakar, is making progress is the talk of the town, writes Chuks Okocha

To the ordinary Nigerian, it is about three times so far that the Presidential Candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar has lost some of the applications his counsel sought before the Presidential Election Tribunal.

The first one was on March 6, 2019, when the Court of Appeal refused the PDP presidential candidate access to inspect the server, where it claimed the results of the presidential election were transmitted, but ordered INEC to allow him inspect order electoral materials.
Again, on June 24 2019, the tribunal refused to allow Atiku’s lawyers the request to inspect server and card reader and last week, precisely on July 3, the tribunal further refused Atiku the opportunity to set aside proceedings of June 11.

These three instances had made some observers to argue that Atiku’s chances at the tribunal were becoming impossible by the day. Even the presidential spokesperson of the All Progressives Congress (APC), Festus Keyamo (SAN), said it was a three straight defeat against the PDP presidential candidate and therefore led many to the conclusion that could Atiku be wasting his time at the tribunal as his 15 minutes might have been up.

Curiously, Atiku thinks differently, particularly to the tribunal ruling that he has lost the chance to inspect the INEC server, insisting that the request to inspect the server was not rejected, adding that the last has not been heard on his petition currently before the presidential election tribunal as he would laugh last. How true this is however depends on time.
Rationalising the tribunal ruling, Atiku said “What the honourable Tribunal said was that it is still at preliminary stages and the main case has not begun and that the matter of granting access to inspect the INEC server is not relevant to the preliminary stages. It is a matter to be adjudicated upon when the case proper is being heard.

“As such, the celebration by the administration of General Buhari that their electoral heist has been covered is premature. Their giddiness has even blinded them to the eyewitness testimony given to multiple media in interviews by staff of the Independent National Electoral Commission that there is indeed a server and that they actually submitted results and accreditation through it.
“In their rush to claim a Pyrrhic victory, the General Buhari administration missed out the fact that the 2019 budget has multiple line items for procurement, maintenance and service of the server they claim does not exist”.

He thereforesaid the “government tried to spin the recent verdict on the election passed by the EU election observers. For the avoidance of doubt, what the EU report said is that the 2019 elections had SIGNIFICANT defects and fell short of the 2015 elections. It should be noted that one of the issues they raised is the attempt to muzzle not just the media, but more importantly, the judiciary.

“In the light of this, we remind those who are gloating in their ignorance that ‘he who laughs last, laughs best. The last has not been heard of this matter and we eagerly anticipate the ACTUAL ruling of the Tribunal, when the case proper begins.”
The statement reiterated the position that Atiku won the last presidential election, noting that “This is a vindication of our case that not only did Atiku Abubakar win the February 23, 2019 elections, but that the administration of General Muhammadu Buhari lacks executive temperament and capacity as we will now establish”. It was in this light that some pundits argued it would be too early in the day to believe that Atiku was losing grounds at the tribunal.

The true position is that Atiku’s petition is still on course, following what the tribunal has said in subsequent rulings.
For instance, the tribunal said, “After a careful examination of relief sought by the applicants, Electoral Act and cases decided by this court, it is hereby ordered that leave is granted to bring the application before the pre-hearing session.
“The first respondent is ordered to allow the applicants leave to inspect and obtain CTC of polling documents to enable them institute and maintain the petition. Prayers 3 to 6 are hereby refused,” Justice Aboki held.

But with what the tribunal said, the refusal to order the electoral body to permit forensic experts of Applicants to examine form EC48 and other relevant forms used for the election does not mean that Atiku was losing at the tribunal.
The tribunal in one of its ruling noted that the applicant’s lawyer had rightly based his argument on a previous decision of Election Petition Tribunal, but “observed that the decision, which permits applicants to inspect, to scan for forensic analysis has been overruled by this court, because it confers undue advantage to the applicant.”

Justice Aboki, in addition, said in the case of Hope Uzodinma and Osita Izunaso, where similar request was granted, the order was made during the trial and not before. The interpretation is therefore not that Atiku lost but that the application was too early as to grant it would amount to giving an undue advantage to others.
Respondents in the motion exparte dated March 4 and filed March 5 include INEC, President Muhammadu Buhari and the All Progressives Congress (APC).

The petitioners had through an exparte motion prayed the court for an order compelling INEC to allow them inspect election materials used in the conduct of the presidential election for the purpose of instituting and maintaining their petition at the tribunal.
In arguing the motion, lead counsel to Atiku and the PDP, Chief Chris Uche, SAN, said the purpose of the motion was to help the petitioners institute and maintain their petition at the tribunal.

Uche said while the first prayer in the motion supported by a 12 paragraph was seeking leave of the court to bring the application before the pre-hearing session, the second to six prayers were seeking for an order of the tribunal to compel INEC to allow the petitioners access to as well as inspect, scan and make photocopy of materials for forensic analysis.
It also prayed the court for an order directing INEC to allow their forensic experts carry out audit and analysis of ballot papers, ballot boxes, card readers, computer servers amongst other Polling documents. He said the application was brought pursuant to section 151(A & B) of the Electoral Act.

When asked if a Certified True Copy (CTC) from INEC would not suffice as there was the possibility of the scanned documents being manipulated, the senior lawyer submitted that the scanned documents were same documents with INEC and at any rate, the electoral body has right to object to any documents presented by the applicants that is at variance with theirs.
He cited several authorities particularly of the Court of Appeal, where similar prayers to scan INEC materials for the purpose of instituting the plaintiff’s petition, adding that in one of such cases, the Court of Appeal held that the respondent could equally make same request if it so desires.
At this stage, the panel then directed the counsel to supply it with relevant authorities cited in support of the motion. This in itself does not suggest a petition that is losing ground.

Thus, when last Wednesday, the tribunal dismissed PDP and Atiku’s request seeking an order of the tribunal to set aside the proceedings of June 11, 2019, or in the alternative enlarge time for the PDP to file a counter affidavit in opposition to the application filed by the APC seeking to expunge some aspects of its petition, this had also raised concerns amid supporters of the PDP candidate. The tribunal had on June 11, 2019 ruled that the petitioners – PDP and Atiku – had no response to the motion by the APC, on the grounds that they failed to file a counter-affidavit.

It was in that ruling that the petitioners prayed the court to set aside and allow them to formally respond to the motion, a request the tribunal rejected. The tribunal however held that the petitioners did not put anything before the tribunal enough as to sway it in its favour hence the application was lacking in merit and was subsequently struck out.
Chairman of the tribunal, Justice Mohammed Garba, who made the announcement, said the tribunal’s decision was on the grounds that all applications centered on the competence of the petition and all those questions would be answered when the final judgment is to be delivered.

Truth is that all the rulings so far were merely preliminary and interlocutory in nature as they could convey advantage to the petitioner. What should concern anyone now are the main ingredients of the petition, which commenced last Thursday, praying amongst others that the 2nd Respondent (Muhammadu Buhari) was not duly elected by a majority of lawful votes cast at the election.