Atiku heads for Supreme Court as tribunal blocks access to INEC server

The Peoples Democratic Party (PDP) and its presidential candidate in the February 23, 2019 election, Alhaji Atiku Abubakar, have vowed to appeal against Monday’s ruling of the Presidential Election Petitions Tribunal dismissing their application for permission to access and inspect the central server said to have been used by the Independent National Electoral Commission (INEC) for the conduct of the polls.

The Justice Mohammed Garba-led bench of five judges, in a unanimous ruling, upheld the opposition by the three respondents to the petitioners’ application.

The three respondents who opposed the application through their respective lawyers are INEC, Buhari and his party, the All Progressives Congress (APC).

Dismissing the application, the tribunal held that granting it would amount to pre-judging the main issue meant for trial during the substantive hearing of the petition.

Justice Garba, who delivered the lead ruling of the tribunal, held that INEC having denied the existence of the said server and insisted that results of the election were not electronically transmitted into any server as alleged by the petitioners, granting the application would amount to deciding the central issue in the petition at the interlocutory stage.

“This will be unpalatable,” Justice Garba held.

He added that granting the application would “by implication, mean that the court had indeed recognised and found that there is a central server into which results of the election held on February 23, 2019 were electronically transmitted by the 1st respondent (INEC).”

He said the Supreme Court had on many occasions warned judges to desist from “making observations, comments or any pronouncements in rulings in any application which may appear to have prejudged the establishment of the main issue that will be required to be proved in the substantive matter.”

He said, “In other words, the court cannot in an interlocutory application determine the main issue that is meant to be tried during trial.

“This court has chosen to abide by the said admonition of the Supreme Court so as not to be culpable of prejudging the main issue in the petition at the interlocutory stage.”

The tribunal added, “In this regard, I decline to grant the relief sought by the petitioners in their application. The application filed on May 8, 2019 is hereby refused and dismissed.”

INEC had declared Buhari and his APC the winner of the February 23 election.

It said Buhari polled 15,191,847 votes to defeat his closest rival, Atiku, who polled11, 262, 978 votes.

But Atiku and the PDP, in their petition filed on March 18 to challenge the outcome of the polls, contended that “from the data” obtained from INEC’s server, “the true, actual and correct results” showed that they polled a total of 18,356,732 votes to defeat Buhari whom they claimed scored 16,741,430 votes.

By calculation, Atiku and the PDP claimed to have defeated Buhari by 1,615,302 votes.

Speaking with journalists after Monday’s proceedings, two senior members of the petitioners’ legal team – Chief Chris Uche (SAN) and Chief Mike Ozekhome (SAN), said they were going to appeal against the ruling of the tribunal.

They said they believed that the petitioners, under the Electoral Act, were entitled to the prayer they sought in their application but which was dismissed by the tribunal.

Uche said, “The nation was looking forward to this ruling and it’s one that is very pivotal to this matter. The Electoral Act itself empowers the court and indeed all tribunals to grant access such as this to petitioners in order to institute and maintain a petition.

“The court has ruled. But definitely this is a matter we want to take to the Supreme Court to challenge this ruling because we strongly feel that Section 151 (of the Electoral Act) entitles us to have access to these materials.

“We are not asking the court to decide the issue of whether there is a server or not. The claim about the court prejudging any issue doesn’t arise at all.

“All we are saying is allow us access to inspect materials used by INEC which we are entitled to and INEC is a public institution funded by public finance. So, we are going to challenge the ruling.”

Ozekhome, who also restated the petitioners’ decision to appeal against Monday’s ruling of the tribunal at the Supreme Court, said the denial the petitioners suffered on Monday amounted to denying the right of the petitioners to maintain their petition by denying them access to vital materials.

He said, “More importantly, INEC Chairman, Prof Mahmood Yakubu, had maintained again and again before and during the elections that they had a central server and that the results were going to be electronically transmitted to that central server.

“All the electoral commissioners, including Mr (Mike) Iginni, in Akwa Ibom State, maintained that the stage we were in was a technological stage when things would not be done manually, that anything not done through the PVC, and results not transmitted to the central server would not be valid.”

Expressing surprise at Monday’s ruling, Ozekhome noted that the spokesperson for the APC Presidential Campaign Organisation, Mr Festus Keyamo (SAN)), “had written a petition against the PDP and Atiku that they hacked into the central server.”

He added, “Question: Which server would you say they had hacked into if you did not have any? It was not an issue that the petition itself would be prejudiced if they had granted it.

“We will appeal against the decision because we believe that it is like tying your hands behind your back and expecting you to fight. We need the materials required under Section 151 of the Electoral Act, we need the central server.

“We want to know what is inside there that they are hiding, we want to find out. The public is interested because budget was made for procurement of the central server in billions (of naira) and it was approved by the National Assembly and it was disbursed, so where is the money spent? Where is the central server? What is there that you are hiding? You must let us know.”

But INEC’s lead counsel, Mr Yunus Usman (SAN), hailed the ruling, saying, “The court has said that since issues have been joined, it cannot delve into those issues for now before trial. That is just the ruling.”

Earlier on Monday, the tribunal granted leave to Buhari to amend his reply to the petition filed by Atiku and the PDP.

Atiku and the PDP had through their lawyer, Dr Livy Ozoukwu (SAN), filed on May 9, a preliminary objection urging the tribunal to strike out Buhari’s reply on the grounds that the address of service of the lawyers who filed the reply was not supplied in the reply as mandatorily provided for in the Electoral Act.

But Buhari, through his lawyer, Chief Wole Olanipekun (SAN), on May 14, filed a motion seeking the amendment to his reply to the petition to correct the omission pointed out by the petitioners.

The motion was opposed by the petitioners.

But in its unanimous ruling on Monday, the five-man panel of the tribunal unanimously granted Buhari’s application.

Justice Garba who delivered the lead ruling of the tribunal held that the amendment sought by Buhari would not change the substance of the reply and it would not constitute any injustice or prejudice against the petitioners.

It then ordered Buhari to file an amended reply reflecting the correction sought within three days.

But the tribunal said it would only deliver its ruling on the petitioners’ preliminary objection challenging the competence of the reply along with the final judgment in the case.

This, Justice Garba said, was in line with the provisions of Section 285(8) of the 1999 Constitution since the preliminary objection prayed that the alleged incompetence of the reply had robbed the tribunal of its jurisdiction to hear the reply.

Further pre-hearing session in respect of the petition was adjourned till Wednesday. – Punch.