Abubakar Atiku and the People’s Democratic Party (PDP), have approached the Supreme Court to nullify the judgment of the Presidential Election Petition Court, which upheld the declaration of Bola Ahmed Tinubu as winner of the 2023 presidential election.
Atiku in the Notice of Appeal predicated on 35 grounds, insisted that there was miscarriage of justice in the judgment delivered by Justice Haruna Tsammani, thereby committing grave error in its findings.
The Notice of Appeal is praying the Supreme Court to set aside the whole findings and conclusions of the petition court on the grounds that they did not represent the true picture of the grounds of his petition.
Atiku and PDP said that the Presidential Election Petition Court (PEPC) erred in law by not taking into cognisance the Doctrine of Legitimate Expectation when the Independent National Electoral Commission (INEC) failed to conduct the election in accordance with its own guidelines and the Electoral Act 2022.
Atiku in his appeal also said that in the alternative, the apex court should order a rerun election to be conducted for him and Tinubu being the 1st and 2nd runners up in the last presidential election.
Atiku is also claiming 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.
While faulting the entire decision of the election court, the appellant on ground eight claimed that the lower court erred in law when it held that Tinubu does not need to score 25% of lawful votes cast in the Federal Capital Territory (FCT) in the interpretation of Section 134(2) of the 1999 Constitution.
Atiku also averred that the petition court made grave error in striking out the witness statement on oath and the entire evidence of his subpoenaed witnesses on grounds that the said statements were not filed along with the petition.
Atiku further argued that the striking out of the evidence of the subpoenaed witnesses of the appellant was in breach of their rights to fair hearing.
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In the Notice of appeal, the appellants listed the particulars of the error as follows;
(1). Pursuant to the introduction of technology by Electoral Act 2022 into the conduct of election in Nigeria, the 1st Respondent (INEC), in exercise of its constitutional responsibilities and mandate, enacted its Guidelines and Regulations for the presidential election 2022 and Manual for Election Officials 2023 for the use of BVAS machines and IReV technologies for the transmission and collation of results of general elections, including the presidential election.
(2). The 1st Respondent, through its Chairman, Professor Yakubu Mahmoud, publicly gave guarantees, undertakings, clear and unambiguous representations to candidates and political parties, including the Appellants, that results of the presidential election shall and must be transmitted electronically to its collation system and uploaded real time to the IReV for transparency and integrity, having received huge, massive investment of public funds and taxpayers money to the tune of N355 billion.
(3). The 1st Respondent in Paragraph 2.9.0 of its Manual for Election Officials 2023 (Exhibit PAE 2) for the said election, admitted and indeed stated clearly that the said requirement of the electronic transmission of the result of the said election, was for the purpose of guaranteeing the integrity of the said election and in particular to avoid the rampant incidents of tampering with the results of the said election between the polling units and the collation centers.
(4). Pursuant to the above representations and assurances, the Appellants participated in the election, with the 1st Appellant contesting on the platform of the 2nd Appellant for election to the office of President of the Federal Republic of Nigeria, placing reliance on the said representation in furtherance of a legitimate interest.
(5). The Appellants participated in the said election based on the said representation by the 1st Respondent that its Presiding Officers were going to electronically transmit the results of the election directly from the polling units to the 1st Respondent’s Collation System and upload same unto the IReV.
(6). The Appellants tendered in evidence as Exhibits PAF1(A), PAF(B) and PAF(C), the undisputed video recordings of the 1st Respondent’s Chairman, Professor Yabuku Mahmud’s representations and the undisputed video recordings of its National Commissioner, Mr. Festus Okoye as Exhibits PAF2(A), PAF 2(B) and PAF2(C).
(7). The 1st Respondent in the course of the proceedings and contrary to its public statements and Guidelines and Regulations for the said election and in particular in paragraphs 25 and 28 of its Reply to the Petition and paragraphs 10 and 14 of the witness statement of its only witness (RW1), denied the existence of the said much publicized procedure of electronic transmission of the results of the said election directly from the polling units to its collation system claiming that the 1st Respondent had no collation system to which ‘polling units results were mandatorily required to be electronically transmitted or transferred directly by the Presiding Officers’.
(8). There was no evidence before the lower Court that the 1st 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 1st Respondent’s Collation System.
(9). The 1st Respondent 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 1st Respondent’s Collation System.
(10). Contrary to the above unambiguous representations, undertakings and guarantees, the 1st 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.
(11). Rather than hold the 1st 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 1st Respondent of any responsibility by holding that the use of the technological innovations to guarantee transparency was not mandatory.
(12). The said election 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.
(13). The grave misrepresentation negated the legal presumption of official regularity in favour of the 1st Respondent.
(14). The 1st Respondent 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.
(15). 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 in STITCH VS. AG, FEDERATION (1986) 5 NWLR (Pt. 46) 1007.
Atiku, however, maintained that the apex Court should nullify the declaration of Tinubu as winner of the presidential election on the grounds that he did not score the majority of the lawful votes in the February 25 presidential election.
Meanwhile, no date has been fixed for hearing of the forty-two-page notice of appeal by the Supreme Court.
(Editor: Ena Agbanoma)
