The Presidential Election Petition Tribunal sitting in Abuja has fixed Thursday to hear a motion the Peoples Democratic Party, PDP, and its candidate, Alhaji Atiku Abubakar, filed to compel the Independent National Electoral Commission, INEC, to surrender the server where results of the February 23 presidential election results were transmitted to, for inspection.
The petitioners are challenging the declaration by INEC that President Muhammadu Buhari garnered a total of 15,191,847 votes to defeat Atiku who it said polled a total of 11,262,978 votes in the disputed presidential election.
In their petition marked CA/PEPC/002/2019, Atiku and his party, insisted that data they independently secured from INEC’s server, revealed that they clearly defeated President Buhari with over 1.6million votes.
The petitioners alleged that INEC had at various stages of the presidential election, unlawful allocated votes to President Buhari, saying they would adduce oral and documentary evidence to show that result of the election as announced by the electoral body, did not represent the lawful valid votes cast
Atiku alleged that in some states, INEC, deducted lawful votes that accrued to him, in its bid to ensure that Buhari was returned back to office.
The petitioners said they would call evidence of statisticians, forensic examiners and finger-print experts at the hearing of the petition to establish that the scores credited to Buhari were not the product of actual votes validly cast at the polling units.
Meanwhile, at the resumed sitting of the tribunal which is conducting its proceeding at the Court of Appeal Headquarters in Abuja, the petitioners, notified the panel that they had on May 8, filed an application for INEC to allow parties access to its server.
According to the petitioners, any of the Respondents, including President Buhari and the APC, would be at liberty to also access any information that would be retrieved from the server.
The five-member panel tribunal headed by Justice Mohammed Garba, okayed hearing on the application, on a day it entertained and reserved ruling on nine different motions that were filed by all the parties in the petition.
It will be recalled that President Buhari had earlier challenged Atiku and PDP’s bid to have access to any of the sensitive materials that were used for the presidential election.
In a preliminary objection he filed through his team of lawyers led by Chief Wole Olanipekun, SAN, Buhari who is the 2nd Respondent in the petition, argued that all portions of the petition relating to the use of Card Reader Device should are be struck out for being incompetent and not backed by any law.
He equally contended that every aspect of the petition grounded on or relating to electronic data purportedly retrieved or downloaded from INEC’s server are liable to be struck out, “same being incompetent and not rooted in any existing legislation”.
He said: “That there were no incidences of corrupt practices at the election of 23rd February, 20l9, as alleged by the Petitioners; and that the declaration and return of the respondent President of the Federal Republic of Nigeria is valid and in compliance with the provisions of the Constitution, the Electoral Act, and all other Laws, Rules, Guidelines and Regulations, regulating the election.
“That the election of the respondent as the elected President of the Federal Republic of Nigeria is valid and was conducted in substantial compliance with the provisions of the Electoral Act.
“Contrary to paragraph 17 of the petition, the respondent states that the petitioners scored a total of 11,262,978 votes, trailing far behind the respondent who scored a total of 15,191,847 votes, with a margin of 3.328.869 votes”.
Insisting that he validly earned the number of votes that were credited to him by INEC, Buhari, said there was “nothing affecting the integrity of the election as there was nothing untoward on the Form ECBDM and no calculation errors can he revealed by any genuine forensic examination or statistical analysis in respect of the election”.
“The 1st respondent was duly elected by the majority of lawful votes cast at the election to the office ofthe President, and shall at the trial, rely on [NBC FORMS 3C8 MA) and ECBE, issued by the 1st respondent at the election.
“Further to paragraph 1 of the petition, respondent denies that the 1st petitioner voted at all at the election, and further states that 1st petitioner did/does not have any right to be returned an elected at the said election, having been rejected at the polls by the electorate and the respondent having been overwhelmingly voted by the electorate, and returned by the 1st respondent as President in the said election.
“The respondent further states that he did not only score majority of lawful votes cast at the election into the office of President of Nigeria at the election of 23rd February, 2019, convincingly, but also had/has the requisite constitutional spread of one-quater of the total number of votes cast in more than two-thirds of the States of the Federation”, President Buhari argued.
Meanwhile, among the nine motions the tribunal reserved judgement on included the one President Buhari filed for leave to amend his processes to reflect the contact address, email address and National Identification Number of his lead counsel, as required by the rules.
He also filed a motion for the entire petition to be struck out or dismissed for being fundamentally defective, thereby vesting no jurisdiction in the tribunal.
Alternatively, he asked the tribunal to strike out 18 itemised paragraphs of Atiku’s reply to his response against the petition.
On its part, INEC, in an application it filed on May 5, asked the tribunal for an order striking out the petition dated March 18, for failure of the petitioners to join the Vice President, Prof.Yemi Osinbajo, SAN, being the co-winner of the February 23 presidential election, as a party in the matter.
“Whatever affects the President affects his Vice. If the president is not qualified, even if the VP is qualified, he will go. Is it not therefore necessary to join him as an necessary party to the petition?”, INEC’s lawyer, Mr. Usman Uztaz, SAN, queried.
“We humbly urge my lord to dismiss this petition”, he added.
However, Atiku’s lawyer, Dr. Livy Uzoukwu, SAN, described the application by INEC as “very unusual”.
In his counter-affidavit, counsel to the petitioners urged the tribunal to dismiss the application, “so as to save INEC and help it to maintain neutrality”.
Both Buhari and APC said they were not opposed to INEC’s application.
The tribunal reserved its ruling till a date to be communicated to parties.
In its second application filed on April 25, INEC, sought to be allowed to seek dismissal of the petition, within the pre-hearing session.
“It is our duty to defend the election result”, INEC insisted.
While INEC withdrew one of its pending applications, APC, through its lawyer, Chief Lateef Fagbemi, SAN, withdrew a motion it filed on May 14 to strike out certain paragraphs of the petition.
However, APC noted that the petitioners failed to file any counter-affidavit to another motion it filed on the same day for the entire petition to be struck out.
It argued that rather than to file a counter-affidavit to its application, the petitioners, filed a preliminary objection.
Fagbemi contended that since he withdrew the motion upon which the preliminary objection was based, the petitioners no longer had any issue against his motion for the entire petition to be struck out.
Similarly, the APC argued that the petitioners failed to respond to another application dated May 15, which sought to amend its earlier response to the petition.
Fagbemi drew attention of the tribunal to the fact that the petitioners erroneously responded to an unknown process dated May 24.
Even though Atiku’s lawyer, Uzoukwu, SAN, persuaded the tribunal to allow him to orally amend the date on the heading of the counter-affidavit, the panel, however stressed that the amendment would not affect the content of his process.