Tinubu to S’Court: Dismiss Atiku’s Appeal, It’s Abuse of Court Process

Alex Enumah in Abuja

President Bola Tinubu has asked the Supreme Court to dismiss the appeal filed by candidate of the Peoples Democratic Party (PDP) in the February 25 presidential election, Atiku Abubakar against his declaration as president.
Tinubu predicated his request on the grounds that Atiku’s appeal seeking to upturn the judgment of the presidential election tribunal, which affirmed his victory at the presidential poll, was lacking in merit and an abuse of court process.

The Independent National Electoral Commission (INEC) had on March 1, declared Tinubu of the All Progressives Congress (APC), winner of the presidential poll, having been convinced that he won a majority of the lawful votes cast at the presidential election.
Dissatisfied, Atiku on March 21, lodged his petition at the tribunal, seeking amongst others, the nullification of Tinubu’s election over alleged irregularities, malpractices, and non-compliance with electoral laws amongst others.

But, the tribunal in its unanimous judgment delivered on September 6, upheld the declaration of Tinubu as winner of the presidential poll.
The five member panel, led by Justice Haruna Tsammani, pointed out that Atiku’s petition failed to prove allegations contained therein and subsequently dismissed the petition for lacking in merit.
Still not satisfied, Atiku on September 18, asked the apex court to set aside the judgment of the tribunal for being perverse in arriving at the conclusion that he did not prove his case.

He predicated his appeal upon 35 grounds upon which he is asking the Supreme Court to set aside the judgment of the tribunal.
He has also brought in fresh and additional evidence to prove that Tinubu ought not to be on the ballot in the first place on the grounds that he forged his Chicago State University (CSU) certificate he submitted to INEC in aid of his qualification for the presidential election.
Relying on Section 137 of the Constitution, Atiku also urged the apex court to sack Tinubu for lying on oath, regarding his academic qualification.
However, in response to the appeal marked SC/CV/935/2023; with petition number: CA/PEPC/05/2023, Tinubu through his team of lawyers led by Chief Wole Olanipekun, SAN, argued that from the “clear position of the law”, Atiku and his party in their joint appeal have not, “demonstrated any reason why this Honourable Court should disturb any of the findings of the lower court, which, with all modesty are rooted in law and perfect demonstration of scholarship.”
Tinubu, in his response, challenged the competence of the grounds of appeal contained in Atiku’s Notice of Appeal, as well as the issues formulated in the appellants’ brief.

He raised seven issues for determination by the apex court, which included, having regard to the appellants’ pleadings before the lower court, vis-a-vis the provisions of paragraphs 4(1)(d)(2) and 16(1)(a) of the First Schedule to the Electoral Act, 2022 and Order 13 Rule 4 of the Federal High Court (Civil Procedure) Rules, 2019, coupled with consistent judicial authorities on the fundamental nature of pleadings, whether the lower court did not rightly strike out offensive paragraphs of the petition and petitioners’ reply to the respondents’ respective replies?

“In view of the clear provisions of section 285(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 132(7) of the Electoral Act, 2022, paragraph 4(5) of the First Schedule to the Electoral Act, 2022 and the settled line of judicial authorities on the subject, whether the lower court did not rightly strike out the witness statements on oath and expunge the evidence of PW 12, PW 13, PW 14, PW 15, PW 16, PW17, PW18, PW19, PW2 I , PW23, PW24, PW25, PW26 and PW27?
“Was the lower court not right when it upheld the respondents’ objection to the admissibility of the documents tendered by the appellants and struck out the said documents?
“Considering the clear provision of Section 135 of the Electoral Act, the pleadings and the reliefs sought by the petitioners/appellants as well as the admissible evidence before the lower court, whether the lower court was not right in dismissing the appellants’ petition?
“In view of the circumstances of the petition before the lower court, the terse evidence adduced by the appellants and the state of the law on the respective subjects, whether the lower court could rightly be accused of bias by the appellants?” he asked.

On issue one, Tinubu claimed that by all extant relevant laws, INEC has/had the prerogative of determining the mode and manner for the transmission of election results and the lower court was perfectly in order when it so held.
Atiku, had in his petition, alleged substantial non-compliance because INEC failed to transmit election results to the IREV in realtime, adding that failure to do so automatically nullified the result of the election.
“The lower court, in deciding the issue, took a painstaking consideration of the binding judgment of the Federal High Court, per Nwite, J., in FHC/ABJ/CS/1454/2022-Labour Party v. Independent National Electoral Commission, delivered on January 23, 2023, which was tendered before it and admitted as Exhibit.”

Tinubu stated that all the provisions of the regulations created the alternative between electronic transmission and transfer, with the use of the article “or”.
On issue two, which bordered on a candidate securing 25% votes in the Federal Capital Territory (FCT) before being declared winner, Tinubu submitted that the wordings of sections 134 and 299 of the Constitution were clear and urged the apex court to hold that “any election where the electorate exercise their plebiscite, there is neither a ‘royal’ ballot nor ‘royal’ voter.

“It added “that residents of the FCT do not have any special voting right over residents of any other state of the federation, in a manner similar to the concept of preferential shareholding in Company Law. We, therefore, urge the court to resolve this issue in favour of the respondent and against the appellant.”
On issues three to five, which bordered on the striking out of certain paragraphs as well as witnesses’ statement of the petitioners/ appellants, Tinubu said the tribunal was right in holding that the affected paragraphs were offensive and should be removed.
“We, accordingly, urge this Honourable Court to affirm the decision of the lower court, while dismissing this appeal in its entirety, as same is lacking in merit and bona fide.

“We cannot draw the curtain on this brief, without drawing the Supreme Court’s attention to another hypocritical relief being claimed by the appellants in their petition, and more particularly, that in their supplication before the Supreme Court, they are asking that their reliefs be granted.
“The alternative relief (e) put forth by the appellants at the lower court reads thus: ‘An Order directing the 1’ Respondent to conduct a second election (run-off) between the 1’ Petitioner and the 2’ Respondent.’
“Undoubtedly, this relief has exposed the pretentious attitude of the appellants, both at prosecuting their case at the lower court and before this Honourable Court.
“Here are the same set of appellants alleging non-qualification of the respondent, via the backdoor, that is, through their reply, on the one hand, and on the other hand, praying this Honourable Court to nullify the presidential election of February 25, 2023, and direct a second election between the 1st petitioner and the respondent.

“The logical conclusion from this approbative and reprobative posture of the appellants is that deep down in their hearts, they are convinced that the respondent won the election, but have decided to embark on this voyage of abuse of court processes.
“Lastly, may we draw the attention of the Supreme Court to the fact that at the lower court, this set of appellants did not ask for any relief that could inure to the benefit of the appellants in their final written address, as all issues formulated by them and prayers also sought by them before the lower court were targeted at the respondent, without any one of those reliefs designed for their benefit.

“May we quickly refer the court to the 4 issues formulated for determination in their final written address at page 6974 (vol. 9) of the record, and the concluding part of the address in paragraph 6.01 (a), (b), (c) and (d) on pages 7004¬7005 (vol. 9) of the record.

“Everything put together or summarised, this appeal is a further demonstration of the abusive nature to which the appellants have subjected court processes. The Supreme Court is urged to dismiss it.”