As Tinubu, APC, INEC Open Defence Tomorrow

After the Peoples Democratic Party, Labour Party and their presidential candidates successfully closed their cases penultimate Friday at the Presidential Election Petition Court, many Nigerians are looking forward to President Bola Tinubu, All Progressives Congress and the Independent National Electoral Commission to open their defence tomorrow, Wale Igbintade writes

President Bola Tinubu of the All Progressives Congress (APC) and the Independent National Electoral Commission (INEC) will open their defence to advance arguments against the claims made by the presidential candidates of the Peoples Democratic Party (PDP) and Labour Party (LP), Atiku Abubakar and Peter Obi respectively. The petitioners recently closed their cases at the Presidential Election Petition Court in Abuja. 

The aggrieved political parties and their candidates had challenged the outcome of the February 25 presidential election, insisting that it was not in compliance with the provisions of the Electoral Act and 1999 Constitution. 

Specifically, the PDP and Atiku disputed the outcome of the election on the major grounds that INEC did not conduct the election in line with the Electoral Act (2022). They argued that INEC breached its earlier commitment to transmit the result of the presidential election electronically using the Bimodal Voters Accreditation System (BVAS) and INEC Results Viewing Portal (IReV).

On their part, the LP and Obi also contended that the elections were marred by electoral malpractices. Among others, the petitioners are asking the five-man panel of the court, headed by Justice Haruna Tsammani, to invalidate the declaration of Tinubu as the winner.

In a similar development, the Allied Peoples Movement (APM) asked the court to invalidate the votes of the president on the grounds of the double nomination of his deputy, Senator Kashim Shettima. It argued that at the time Shettima became the vice presidential candidate of the APC, he was also a senatorial candidate in Borno State.

The case of the APM was opened and closed on June 21 after calling one private witness.

Before the commencement of the proceedings, Atiku and Obi had said they had 150 witnesses lined up for their cases. While Atiku and PDP said they would line up 100 witnesses to give evidence in support of their joint petitions challenging the outcome of the election, Obi and LP told the court that they would call 50 witnesses.

But while closing their cases on June 21, they ended up presenting 40 witnesses in total. While Atiku and PDP called 27 witnesses, Obi and LP called 13.

Atiku’s witnesses included expert witnesses such as forensic analysts, star witnesses and subpoenaed witnesses mostly presiding officers of INEC.

In the course of the proceedings, both petitioners tendered a litany of documents, which were admitted by the court and marked as exhibits. The petitioners also subpoenaed witnesses, including INEC ad hoc staff and officials, to appear before the court.

“Pursuant to the pre-hearing report, may we most humbly apply to close the case for the petitioners,” PDP lead counsel Chris Uche (SAN), added.

The panel led by Justice Haruna Tsammani then said the “ball is now in the court” of the INEC and other respondents to defend Tinubu’s victory in line with its pre-hearing report.

While INEC’s lawyer, Oluwakemi Pinheiro (SAN), pleaded that the PEPC should permit the electoral umpire and other respondents to open their defence after the Sallah celebration break. He said that was the agreement between lawyers and parties.

On his part, Wole Olanipekun (SAN), counsel for Tinubu and Vice President Shettima, assured the panel that he and other respondents would conclude their defence within one week.

However, the PDP and Atiku did not close their case without drama when the 27th witness, Mr. Mike Enahoro Ebah, a lawyer, tendered some documents to prove the allegation that President Tinubu forged his academic career and diplomatic records.

The witness further tendered notarised judgement of the US District Court regarding Tinubu’s alleged forfeiture of funds traced to his bank account suspected to be proceeds of narcotic deals, as well as a printed extract of the Guinean passport of the president, among other particulars.

Led to give evidence by PDP’s lead counsel, Chris Uche (SAN), Enahoro-Ebah, tendered INEC Forms EC13 and EC9 (nomination forms) filed by Tinubu at INEC. He also tendered an affidavit, receipts and a letter submitted to INEC by President Tinubu as part of his nomination documents.

Other documents he included were an INEC-certified Chicago State University certificate, an NYSC discharge Certificate bearing the name “Tinubu Bola Adekunle”, and Tinubu’s certificate of service from Mobil Nigeria Plc, as well as particulars submitted to INEC when he ran as Lagos State governor.

Enahoro-Ebah also tendered in evidence, the academic records from Chicago State University belonging to Tinubu, obtained through a subpoena that was served on the university by his lawyer in the US. According to the records, a copy of the actual degree certificate issued by Chicago State University to Tinubu, his undergraduate certificate from the said university in 1977, and a South West College Transcript issued to Tinubu, had female as the gender of the applicant.

Also critical to note in the documents tendered was that at the time of his supposed graduation from the university, there was no NYSC exemption on the basis of age. This means that he ought to have produced an NYSC Certificate and not an exemption letter.  In addition, the documents obtained by the witness from the Chicago State University indicate that in the said transcript, the certificate bearer is a female and not male, as claimed by Tinubu. 

As usual, despite INEC’s counsel’s refusal to give consent to the admissibility of the CTCs, the court overruled the counsel and went ahead to accept the above documents from the witness on the grounds of merit.

Before him, a Digital Forensic Analyst, Hitler Nwala, while giving evidence as an expert witness, had told the court that results on all the 110 Bimodal Voter Accreditation System (BVAS) machines he inspected were deleted.

Nwala, a subpoenaed witness, said this while giving evidence as an expert witness for the petitioners in their petition challenging the outcome of the Feb. 25 presidential election.

Led in evidence by the lead counsel for the PDP, Mr. Chris Uche (SAN), the witness said that the machines inspected were only those from the Federal Capital Territory (FCT).

He also told the court that he didn’t know at what point the results were deleted on the machines. He added that he attached a standard device used for such an exercise to the machine to arrive at the conclusion.

When asked if he had the authority of the commission to attach an external device to the BVAS machine, the witness answered in the affirmative.

Also at the proceedings, PDP lawyer Eyitayo Jegede (SAN) tendered more INEC-certified true copies of Form EC8As for Ogun (20 LGAs), Ondo (17 LGAs), Jigawa (27 LGAs), Rivers (20 LGAs), Delta (25 LGAs), Ebonyi (13 LGAs), Edo (18 LGAs), Enugu (17 LGAs), Imo (27 LGAs) and Kogi states (21 LGAs).

But the legal representatives of INEC, APC and Tinubu opposed the admissibility of the documents but reserved their reasons till their final written address for judgment.

The court, however, admitted the documents in evidence but held that ruling on the objections shall be delivered together with judgment.

On his part, Obi and his party closed their case after calling a total of 13 witnesses and presenting several electoral documents, including INEC Form EC8As.

The Chief Spokesman of the LP Presidential Campaign Council and National Director, Media, Labour Party, Yunusa Tanko, who testified last, told the PEPC that he also served as the national collation agent at the party’s situation room.

Being led in evidence by Obi’s lead counsel, Levy Uzoukwu (SAN), Tanko tendered receipts issued by INEC to LP for several documents requested from the electoral umpire by the party. The court admitted them in evidence. He had earlier tendered 18,088 blurred polling unit results downloaded from IReV certified by INEC, and the five-man panel of the court led by Justice Tsammani admitted them as evidence.

The petitioners also tendered BVAS machine reports from 28 states of the federation and the FCT, Abuja. They lamented the refusal of the Chairman of INEC, Prof. Yakubu Mahmood, to accept summons to appear and produce documents used for the February 25 presidential election before the PEPC.

Uzoukwu told the court that the INEC chairman has continuously refused to accept subpoenas to produce the election documents despite efforts by the court bailiff to serve him. However, INEC’s counsel, Dr. Kemi Pinhero (SAN), argued that it was untrue that the subpoena could not be served on the INEC chairman, adding that it has become a pattern for the petitioner (Obi) to look for a whipping boy.

He argued that a similar subpoena from Atiku and his party was served on INEC without hitches.

But Uzoukwu insisted that it was very clear that the INEC chairman cannot be served with a copy of the subpoena and that the court bailiff said the service was refused, which he noted can be verified by the court. He, however, said he had contacted INEC’s lead counsel, Abubakar Mahmoud (SAN), who has graciously requested an extra copy of the subpoena, which he promised to send to the INEC boss.

Those following the proceedings at the court believe that, essentially, the petitions threw up new compliance issues that were a substantial departure from the decision in the case of Atiku Abubakar & Anor v INEC & Anor LER [2019] CA/PEPC/002/2019. The compliance issues were around the use of technology. Of note is the use of BVAS and IReV. These innovations in the Electoral Act, it is believed, will be the game changers at the court and other election petition tribunals across the country.

With the assurance from Olanipekun, that he and other respondents, including the APC and INEC, would conclude their defence within one week, many Nigerians are not only looking forward to what they would put up, but also awaiting the decision of the panel of justices hearing the case.