…as tribunal declines request, gives Buhari 3 days to amend reply to petition
By Ikechukwu Nnochiri
ABUJA- The Presidential Election Petition Tribunal sitting in Abuja, on Monday, dismissed an application the Peoples Democratic Party, PDP, and its candidate, Atiku Abubakar, filed to be granted access to inspect the central server they said was used by the Independent National Electoral Commission, INEC, to transmit results of the February 23 presidential election.
The tribunal, in a unanimous decision by a five-member panel of Justices, said the request could not be granted since the issue of whether such central server existed or not, is already a subject of controversy in the substantive petition that is challenging President Muhammadu Buhari’s re-election.
It stressed that the fact that all the parties to the petition have joined issues on whether or not the said server was used for the collation and transmission of results of the election, granting the joint application by PDP and Atiku, would amount to delving into the main case.
According to the tribunal, allowing the application would amount to prejudging of “fundamental issues already raised by the parties on the substantive matter”.
Besides, Chairman of the tribunal, Justice Mohammed Garba who delivered the lead ruling, held that the Supreme Court had on plethora of decided cases, warned that issue that formed the crux of a dispute before any court should not be determined at the interlocutory stage.
He held that the law bestowed the tribunal with discretionary powers to grant or refuse the application, saying “the court will be willing to exercise its discretion in favour of the Applicant, where there are reasons to do so.
“Such discretion must be properly exercised, judiciously and judicially. It follows therefore that the exercise of discretion is one of the strongest weapons of the court of law which must not be exercised in vacuum”, Justice Garba added.
The tribunal observed that whereas the petitioners maintained that results of the election were indeed collated and transmitted to a central server, on the other hand, INEC, said it was not in possession or aware of the existence of such server.
Justice Garba held that since the other respondents to the petition- President Buhari and the All Progressives Congress, APC- equally challenged the existence of the server and urged the tribunal to uphold the result that was declared by INEC, acceding to the petitioners’ application, would prejudice the entire petition.
“It will not be expedient that the court should grant prayers contained in the application”, Justice Garba added, saying it would amount to “resolving the disputed issue regarding the central server and electronic transmission of results of the presidential election”, at the preliminary stage of the proceedings.
He said: “The scenario will be unpalatable and will create the impression that the court has indeed recognised the existence of a central server and that the result was electronically transmitted.
“The law is settled that the court should ensure caution while dealing with interlocutory application so as not to make any observation that affects the substantive case”.
Consequently the tribunal equally declined the petitioners’ request to be granted access to data that were captured by all the Smart Card Reader Machines that were deployed for the presidential Poll.
Meanwhile, immediately after the ruling was delivered, the PDP and Atiku, vowed to challenge it at the Supreme Court.
“The nation was looking forward to this ruling and it is one that is very pivotal to this matter. The Electoral Act itself empowers the tribunal to grant access such as this to the petitioners in order to institute and maintain a petition, and that is what we are asking for.
“Somehow, at this stage, the court has ruled. But definitely this is a matter we want to take higher to the Supreme Court to challenge this ruling because we strongly feel that section 151 of the Electoral Act entitles us to have access to these materials”, a senior member of the petitioners legal team, Chief Chris Uche, SAN, told Journalists.
On its part, INEC, through its lawyer, Mr. Usman Uztaz, SAN, said it was satisfied with the ruling.
“These are issues to be tried during the hearing, you cannot try them in piecemeal”, INEC’s lawyer told newsmen.
The electoral body had challenged the request, arguing that contrary to position of the petitioners, it did not electronically transmit results of the presidential election into any central server.
The Commission told the tribunal that it was not empowered by the Electoral Act, 2010, as amended, to embark on electronic transmission of results.
While denouncing what it described as details of “a strange server” that was provided by the petitioners, INEC, maintained that the result it declared in President Buhari’s favour, “was a true reflection of what was collated”.
Similarly, President Buhari, through his team of lawyers led by Chief Wole Olanipekun, SAN, as well as counsel to the APC, Prince Lateef Fagbemi, SAN, also urged the tribunal to reject the application they said was based “on speculation and conjectures”.
President Buhari argued that he was validly re-elected, having secured the majority of lawful votes cast.
Meanwhile, in another ruling on Monday, the tribunal, granted President Buhari’s request to be allowed to amend his reply to the petition against him.
In a unanimous ruling, the panel held that allowing President Buhari’s prayer would not affect the merit or otherwise of issues the petitioners raised against the outcome of the presidential Poll.
It noted that President Buhari who was sued as the 2nd Respondent, merely applied to insert the service address and National Identification Number of his lead counsel, Chief Olanipekun, SAN, as required by the Rules.
The tribunal said it was satisfied that granting the application would not prejudice the petitioners’ case, saying the relief would not affect the competence of President Buhari’s existing reply to the petition.
Consequently, the tribunal gave President Buhari three days to file his amended reply to the petition marked PEPC/002/2019.
However, the tribunal said it would reserve its decision on a preliminary objection that PDP and Atiku filed to challenge its jurisdiction to entertain President Buhari’s reply to the petition, which they argued was legally incompetent.
The panel subsequently adjourned till Wednesday for continuation of pre-hearing session on the petition.
It will be recalled that in their joint-petition marked CA/PEPC/002/2019, Atiku and his party, insisted that data they independently secured from INEC’s back-end server, revealed that they defeated President Buhari at the poll 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 and PDP 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.
They therefore prayed the tribunal to allow them to rely on report of data to be obtained from INEC’s server, to prove their allegation that the outcome of the presidential poll was rigged in favour of President Buhari.