Abuja — The presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar, is weighing his options on how to get the Court of Appeal, which is serving as the tribunal of first instance, to proceed with the hearing of his petition, challenging the declaration of President Muhammadu Buhari as the winner of the February 23 presidential election.
The hearing of the petition suffered a major setback on May 22 when the President of the Court of Appeal, Justice Zainab Bulkachuwa, recused herself from the tribunal's sitting, after the judicial panel had delivered judgment in a petition in which Atiku and the PDP demanded that she should step aside due to perceived conflict of interest.
The tribunal, on May 22, had dismissed the petition in which Atiku and the PDP alleged that they might suffer a miscarriage of justice given the fact that Justice Bulkachuwa's husband, Alhaji Adamu Bulkachuwa, who is a senator-elect, and her son, Mr. Aliyu Abubakar, a governorship aspirant, belong to the ruling All Progressives Congress (APC).
But despite the dismissal of the petition, Justice Bulkachuwa decided to step aside for personal reasons.
However, since her stepping aside, efforts by both Atiku and the PDP to get her to nominate her replacement at the tribunal, so that the hearing of the petition could continue have been fruitless.
Statutorily, the five-man tribunal is expected to deliver its judgment 180 days from the day the petition is filed.
Atiku and the PDP filed their petition against the emergence of Buhari on March 18.
Justice Bulkachuwa's delay in naming her replacement prompted Atiku's lawyers to file a fresh petition last week over what they described as a deliberate ploy to truncate the constitutional deadline for the hearing of his petition against the victory of the president.
Sources close to the former vice-president told THISDAY wednesday that he was considering what other steps to take to get Justice Bulkachuwa to perform her statutory duty.
Among the options Atiku is considering include writing a fresh petition to the National Judicial Council (NJC) or resorting to diplomacy in getting the trial started.
One of the sources who is a Senior Advocate of Nigeria (SAN) on the legal team of Atiku, who craved anonymity, said they would wait and see the outcome of their letter before taking any further decisions.
He said: "We have written a letter complaining that there is a delay. So, if we wait for sometimes and no action is taken, we will proceed with the next step, which may involve submitting a fresh petition to the NJC or using diplomatic approach."
Another source said the PDP's legal team had not received any response to the letter it wrote to the Appeal Court president, asking her to appoint a replacement.
"If there is no response to our letter, a meeting would be called to see what steps to be taken next," the source said, adding: "Just as the meeting decided to write the letter, so another meeting would decide the next option."
Also reacting to the delay on the part of Justice Bulkachuwa to appoint her replacement, a lawyer, Mr. Kalu Kalu, said she had no choice but to do so.
According to him, the delay may be part of a larger plan to delay further hearing of the petition.
He advised against going to court to force Justice Bulkachuwa to appoint a replacement.
But Kalu agreed that Atiku could approach the NJC over alleged dereliction of duty on the part of the President of Court of Appeal or still employ some level of diplomacy in handling the matter.
He said: "It is something that she must do; it is not discretionary; it is mandatory that she does it. However, one of the options left for Atiku is to petition her to the NJC because if you say you should go to court, which court would you start from?
"And if you go to court, it means that they have achieved their aim of delaying the case because all they are doing now is to delay considering that once it is 180 days everything becomes a nullity. That is what they are targeting.
"So, the only option left for Atiku is to petition her to NJC for dereliction of duty because one cannot fathom why two weeks after she recused herself till today, she has not appointed a replacement.
"Nevertheless, it would be better to be a little diplomatic about the whole thing because if you say you are taking her to NJC, she can say let me go there and face the consequences once and for all."
Atiku in a letter dated May 31, 2019, had expressed worry that 11 days after Justice Bulkachuwa disqualified herself from the tribunal, following the petition of the PDP and the Atiku/Obi's legal team, the appellate court was yet to name her replacement.
The former vice-president, in the letter by his counsel, Mr. Levy Uzoukwu (SAN), urged the President of the Court of Appeal to appoint a replacement forthwith, since she knows the tribunal has a timeline to prosecute the petitions.
He reminded the appellate court that already, 76 days had been expended out of the 180 days allowed by law, as stipulated in Section 134 (2) and (3) of the Electoral Act (2010 as amended).
The petition stated: "I am one (Silas Joseph) of the counsel in the legal team prosecuting the above petition on behalf of the petitioners.
"I have the authority of the lead counsel, Dr. Livy Uzoukwu (SAN), to write this letter. My Lord will recall that on May 22, 2019, the above-mentioned petition came up for a motion requesting that My Lord to recuse herself from further presiding or participating in this petition. At the end of the proceedings, My Lord graciously recused herself on 'personal grounds' and promised to appoint another justice to continue with the petition.
"My Lord, it is nine days since the date My Lord recused herself and nothing has been heard regarding the replacement that was to be made thereafter.
"Considering the strict requirement of keeping to the constitutional calendar for a petition and the obvious fact that time is also running fast against the petitioners. We pray My Lord to act timeously in appointing a replacement so that we will get a hearing notice and continue with the petition in the interest of justice."