Legal Battle Between Atiku, Tinubu Begins at Apex Court Monday

Alex Enumah in Abuja

The final legal battle over the number one seat of power will begin on Monday, October 23, following the listing of the appeal filed by the candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, against the judgment of the Court of Appeal, which affirmed the election of President Bola Tinubu.

The notice of hearing in the appeal number CA/ PEPC/05/2023, was dated October 19 and signed by one of the Supreme Court Registrars, Zainab Garba.

The former vice-president had on September 18, registered his dissatisfaction with the judgment of the Presidential Election Petition Court, which on September 6, dismissed his joint petition with the PDP for lacking in merit.

The panel, had in a unanimous decision, held that Atiku, as well as other petitioners against the February 25 presidential election were unable to substantiate their allegations against the poll conducted by the Independent National Electoral Commission (INEC).

Specifically, the panel led by Justice Haruna Tsammani in their judgments had held that the documentary and oral evidences presented before them could not prove claims of irregularities, corrupt practices and non-compliance, amongst other claims for which Atiku had asked the court to void Tinubu’s election.

Dissatisfied, Atiku, who claimed that the lower tribunal erred in law in affirming the outcome of the February 25 poll, in his appeal amongst others, asked the Supreme Court to set aside the entire decision of the tribunal.

Atiku, in addition, prayed the apex court to after voiding Tinubu’s election, declare him as the authentic winner of the poll.

Atiku, who came second in the poll, is claiming that he and not Tinubu actually won majority of the lawful votes cast at the election, but the electoral umpire however manipulated the process in favour of Tinubu.

Besides, Atiku had on October 6, filed an application seeking leave of the apex court to bring in fresh and additional evidence of proof that Tinubu stands disqualified from the poll abi nitio, because he violated the constitution having allegedly presented a forged certificate to INEC last year.

He had also in his reply on point of law, pleaded with the final court in the land to consider his application in the interest of the country and turned down Tinubu’s objection to the granting of the application.

In the Notice of Appeal dated September 18, and filed by his lead counsel, Chief Chris Uche (SAN), the former vice-president submitted that the tribunal erred in law by not taking into cognisance the “Doctrine of Legitimate Expectation” regarding the failure of INEC to conduct the election in accordance with its own guidelines and the Electoral Act, 2022.

The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person.

In Nigeria, the doctrine of legitimate expectation demands that a public authority shall respect and apply its stated position or sustained practice in exercising its powers on members of the public.

Expatiating on this line of argument, Atiku told the apex court in ground seven that “the lower court erred in law when it failed to nullify the presidential election held on February 25, 2023 on the ground of noncompliance with the Electoral Act 2022, when by evidence before the court, the first respondent (INEC) conducted the election based on very grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the “doctrine of legitimate expectation”.

While pointing out that the Electoral Act 2022, made the use of Bi-modal Verification Accreditation System (BVAS) and INEC’s Results Viewing (IReV) portals mandatory in the conduct of the 2023 general election, he added that INEC, through its Chairman, Prof. Yakubu Mahmoud, publicly gave guarantees, undertakings, clear and unambiguous representations to candidates and political parties that polling unit results were mandatorily required to be electronically transmitted or transferred directly by the presiding officers.

He argued that: “There was no evidence before the lower court that the first respondent altered its aforesaid guidelines and regulations to remove the said requirement of electronic transmission of the results of the election directly from the polling units to the first respondent’s collation system.”

It is the submission of Atiku that INEC “conducted the said presidential election based on the gross misrepresentation to the appellants and the general voting public that the presiding officers were going to electronically transmit the results of the said election directly from the polling units to the first respondent’s collation system”.

He added that: “Contrary to the above unambiguous representations, undertakings and guarantees, the first respondent neither deployed the electronic transmission of election results nor the electronic collation system in the said election, sabotaging the raison d’etre for the enactment of the new Electoral Act 2022 and the introduction of the technological innovations.

“Rather than hold the first respondent (INEC) as a public institution accountable to the representations that it made pursuant to its statutory and constitutional duties which created legitimate expectation on the part of the appellants, the lower court wrongly exonerated the first respondent of any responsibility by holding that the use of the technological innovations to guarantee transparency was not mandatory.”

It was the appellant’s further position that the February 25 poll was “conducted based on very grave and gross misrepresentation and was therefore oppressive to the appellants and thus not free and fair, and not in accordance with the principles of the Electoral Act 2022, and not protected by the presumption of regularity, as well as the preamble and the fundamental objectives and directive principles of state policy of the Constitution of the Federal Republic of Nigeria 1999 (as amended) adopted by the lower court.

“The grave misrepresentation negated the legal presumption of official regularity in favour of the first respondent”.

Besides, Atiku told the apex court that INEC as a public institution is not above the law, and not entitled to breach its own regulations with impunity, after clear and unambiguous representations upon which parties have placed reliance and entitled to legitimate expectation.

“The said election ought to have been nullified by reason of the said gross misrepresentation by a public institution based upon the ‘doctrine of legitimate expectation’ as applied by the Supreme Court as a policy court…”

Faulting the tribunal’s judgment further, Atiku claimed that the lower court erred in law when it failed to determine his case with respect to the mandatory verification and confirmation required before the announcement of the results of the presidential election, pursuant to Section 64(4) of the Electoral Act, 2022.

He averred that all the collation officers, returning officers and INEC Chairman are under a statutory obligation to confirm and verify that the results being collated is consistent with the results directly transmitted from the polling units before making final announcement on the general election.

Besides, the appellant in ground eight claimed that the lower court erred in law when in its interpretation of Section 134(2) of the 1999 Constitution held that Tinubu does not need to score 25% of lawful votes cast in the Federal Capital Territory (FCT).

According to Atiku, the decision of the tribunal that the FCT was like any other state of the federation was misconceived and should be set aside.

The former vice-president observed that the issue submitted to the tribunal called for the interpretation of the material word “and” in the said Section 134(2), adding that the provisions of the section are clear and unambiguous.

On the striking out of his witnesses’ statement on oath and the entire evidence of his subpoenaed witnesses on the erroneous grounds that the said statements were not filed along with the petition, Atiku described the action of the tribunal as a grave error and miscarriage of justice.

He argued that the subpoenaed witnesses were essentially persons whose statement on oath could not practically be ready and available at the time of preparing and filing of his petition.

“PW 21 and PW 26 were witnesses whose witness statements on oath and experts reports were predicated upon the order of the same tribunal made pursuant to Section 146(1) of the Electoral Act, 2022, which authorized them on behalf of the appellants to proceed to inspect electoral documents in the custody of the first respondent (INEC) for the maintenance of the petition.

“The said witness statement on oath and the reports were products of the inspection conducted pursuant to the order of court and could not have been produced in advance before the filing of the petition, same being dependent on access to electoral documents in the possession of an adverse party,” he stated.

Atiku further argued that the striking out of the evidence of his subpoenaed witnesses was in breach of their rights to fair hearing and was to amputate the evidential limbs of the case of the appellant and peremptorily and technically knock out the case of the appellant.

In ground 31, Atiku and PDP further contended that the tribunal erred in law when on the preliminary objection of INEC that one Hon. Friday Adejo, Chairman of Olamaboro Local Government Area of Kogi State and Governor Yahaya Bello of Kogi State ought to have been joined as respondents in the petition on the grounds of not infringing on their fundamental rights to fair hearing.

Atiku said that the said persons are not necessary or statutory respondents as envisaged by Section 133 of the Electoral Act, adding that no relief whatsoever was claimed against the said persons for which their non-joinder will affect their rights to fair hearing.

Atiku therefore maintained that the Supreme Court should nullify the declaration of Tinubu as winner of the presidential election on the grounds that he did not score majority of the lawful votes in the February 25 presidential election.