The ruling All Progressives Congress (APC) has asked the Presidential Election Petition Court sitting at the Court of Appeal in Abuja to dismiss or strike out the petition filed by the Peoples Democratic Party (PDP) and its Presidential candidate in the February 25 general election, Alhaji Atiku Abubakar challenging the victory of its presidential candidate, Bola Ahmed Tinubu in the election.
In a notice of preliminary objection to the PDP and its presidential candidate, the APC, through its lead counsel, Prince Lateef Fagbemi (SAN) said the Court has no jurisdiction to adjudicate on the petitioners’ allegation predicated on ground (d) in paragraph 16 of the petition and the associated/related paragraph 146 of the petition which lacks necessary facts or particulars as required by Paragraph 4(1)(d) of the Rules of procedure for election petition (First Schedule to the Electoral Act, 2022).
Atiku Abubakar and his party, in their petition, joined INEC, Tinubu and the APC as first to third respondents.
The Petitioners stated in their petition that INEC wrongly returned Tinubu as the winner of the election, allocating to him 8, 794, 726 votes.
Setting out the grounds of the petition by the petitioners’ lead counsel, Mr. Joe-Kyari Gadzama (SAN), the petitioners stated that Tinubu’s election is invalid by reason of non-compliance with the provisions of the Electoral Act, 2022, corrupt practices and that Tinubu was not duly elected by majority of lawful votes cast at the Election.
While arguing that Tinubu was, at the time of the Election not qualified to contest the Election, Atiku and the PDP aver that the February 25 Presidential election was not conducted in accordance with the provisions of the Electoral Act 2022, and other extant laws and that the non-compliance substantially affected the result of the Election, in that Tinubu ought not to have been declared or returned as the winner of the Election.
They specifically argued that the Election was not conducted in compliance with the provisions of, “Sections 47(2) & (3), 60(1), (2) & (5), 64(4)(a) & (b), 64(5), (6), (7) & (8), 71 and 73 of the Electoral Act, Paragraphs 3.3.0 and 3.4.0 of the 1st Respondent’s published Manual for Election Officials 2023 (“INEC Manual” or “Manual”), and Paragraphs 19, 35, 38, 40, 41, 42, 43, 47, 48, 50, and 62 of the 1st Respondent’s published Regulations and Guidelines for the Conduct of Elections 2022 (“INEC Regulations” or “Regulations” or “Regulations and Guidelines”).
Atiku Abubakar and his party, in their petition, joined INEC, Tinubu and the APC as first to third respondents.
The Petitioners stated in their petition that INEC wrongly returned Tinubu as the winner of the election, allocating to him 8, 794, 726 votes.
They state that INEC failed to comply with its own Guidelines to transmit results and accreditation data directly and real-time to the IReV and its electronic collation system/storage device before the hasty return and announcement of Tinubu as the winner of the Election on March 1, 2023 and contend that by the combined provisions of the Electoral Act, the INEC Regulations and Guidelines and the INEC Manual, the votes collated at the polling units are to be electronically transmitted with the Bimodal Voter Accreditation System (BVAS) directly and real-time to the INEC electronic collation system and IReV portal.
The Petitioners aver strongly that INEC, having set the parameters, did not ensure compliance with the electronic transmission of accreditation data and results in the Election to create opportunity for manipulation of figures to the advantage of Tinubu and the APC and added that, they will lead evidence at the hearing to show that there were no technical “glitches” that prevented the upload and transmission of the polling units results and the accreditation data of the Presidential Election to the electronic collation system and the IReV portal.
They further state that as of 1st March 2023, when INEC returned the Tinubu as the winner of the Election, the entire results and accreditation data from the polling units had not been transmitted and uploaded to its electronic collation system/storage device, created/acquired for the purpose of electronically collating the results of the Election.
The petitioners aver that Tinubu failed to score at least one quarter (25%) of the votes cast in the Federal Capital Territory, Abuja as mandatorily required by the 1999 Constitution and that INEC ought not have declared Tinubu as the winner of the Election.
The Petitioners pray against the Respondents jointly and severally, “That it may be determined that the 2nd Respondent was not duly elected by a majority of lawful votes cast in the Election and therefore the declaration and return of the 2nd Respondent by the 1st Respondent as the winner of the Presidential Election conducted on the 25th day of February, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.
“That it may be determined that the return of the 2nd Respondent by the 1st Respondent was wrongful, unlawful, undue, null and void having not satisfied the requirements of the Electoral Act 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which mandatorily requires the 2nd Respondent to score not less than one quarter (25%) of the lawful votes cast at the Election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
“That it may be determined that the 2nd Respondent was at the time of the election not qualified to contest the said election” and in the alternative, “the 1st Petitioner, having scored the majority of lawful votes cast at the Presidential election of Saturday, 25th February, 2023, be returned as the winner of the said election and be sworn in as the duly elected President of the Federal Republic of Nigeria”.
They also pray for an Order directing INEC to conduct a second election (run-off) between Atiku Abubakar and Tinubu and in further alternative, that the election to the office of the President of the Federal Republic of Nigeria held on 25th February, 2023 be nullified and a fresh election (re-run) ordered.
But the APC, in its preliminary objection, argued that the Petitioners’ paragraph 146 in support of Ground 4 on non-qualification is vague, bear and meaningless as having the constitutional threshold is not part of the requirement to contest an election.
It said the Respondent pasted in the relevant constituency, particulars of the Respondent for the notice of the general public long before the holding of the election under reference to enable action to be taken by any member of the public (including the petitioners) to challenge the 2nd Respondent’s claim and qualification and argued that, the petitioners failed and/or neglected to challenge the validity of Tinubu’s claim regarding his educational qualification as the Ground stated in the said Petition has no particulars or specific infractions constituting non-qualification.
It added that PDP and Atiku Abubakar’s petition discloses no reasonable cause of action or any cause of action at all.
According to the party, allegations of non-compliance must be made distinctly and proved on polling unit basis and added, “In the entire Petition and/or the itemized paragraphs (stated in ground 7 herein), Petitioners did not provide the particulars of polling unit(s) where any irregularity or non–compliance took place.
“Failure of the petitioners to plead with specificity the particulars in terms of names, codes and/or polling units where the alleged malpractices, non-compliance, irregularities, took place is a fundamental violation of paragraph 4(1)(d) of the 1st Schedule to the Electoral Act, 2022, which fact renders the petition incompetent and an abuse of court process”.
The Petition as presently constituted, the party said, is devoid of necessary particulars/information to support allegations of corrupt practices, violence and non – compliance with provisions of the Electoral Act.
It said the petition of Atiku and his party discloses no reasonable cause of action; having regard to the paucity of the facts pleaded to be relied upon in proof of each of the 4 grounds on which the petition is premised, adding that the 2nd Respondent won the election which is the subject matter of this petition by a majority of lawful votes cast and was duly and properly returned as elected President of the Federal Republic of Nigeria by INEC and in compliance with the provisions of the Electoral Act, 2022 and the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The party said, in the instant election no result of any polling unit where BVAS machine failed to function was collated to declare the 2nd Respondent winner of the election and all results together with the accreditation data were duly and appropriately transmitted from the various polling units and none of the votes rejected by the 1st Respondent collated in favour of the Respondent adding that INEC was not in breach of any provision of the law including Sections, 50, 60 and 60(4) and (5) of the Electoral Act in the collation and declaration of the result of the election.
“it is not true that the 1st Respondent failed to transmit by uploading the result and accreditation data from the polling units directly by BVAS to the 1st Respondent’s electronic collation system and that, there were no irregularities such as over-voting or any other electoral infraction in the polling units where the 2nd Respondents won the election.
APC said, the results declared by the INEC in the polling unit where Tinubu won represents the lawful votes cast by the electorates.
According to APC , Tinubu was duly elected by a majority of the lawful votes cast at the presidential election held on 25th February, 2023 and scored the highest number of votes as well as one quarter of lawful votes at the election in each of at least two – thirds of all the states in the Federation.
It held that, candidate who scored majority of the votes cast at a Presidential Election and secured one-quarter of the votes cast at the election in at least two-thirds of all the States in the Federation, need not obtained twenty-five percent of the votes cast in the FCT to be entitled to be declared winner of the election.
That, the inclusion or addition of the Federal Capital Territory (FCT), Abuja by the provision of the Constitution did not attach special or unique condition or recognition to the Federal Capital Territory but to give Federal Capital Territory parallel recognition with other states of the Federation.
“The declaration and return of the 2nd Respondent as the winner of the election was valid, not hasty or wrongful as alleged by the Petitioners”, APC said and further avers that the election won by Tinubu was valid, free and fair and it is not invalid by reason of corrupt practices or any other electoral infraction.
It further held that Tinubu was eminently qualified to contest the Presidential election and met the constitutional threshold and added that, the petition by Atiku and PDP is grossly incompetent, an abuse of the Court Process, lacks merit and liable to be dismissed with substantial cost.
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