25 June 2019

Nigeria: Atiku, PDP Head to Supreme Court Over INEC Server

Abuja — The Peoples Democratic Party's (PDP) presidential candidate in the last general election, Alhaji Atiku Abubakar, and his party are heading to the Supreme Court to challenge the ruling of the Presidential Election Petition Tribunal (PEPT), sitting in Abuja, which yesterday denied them access to the server and data of smart card reader the Independent National Electoral Commission (INEC) allegedly used to compute the results of the 2019 presidential election.

Atiku and the PDP signified their intention to challenge the tribunal ruling shortly after the presiding justice of the five-man panel, Justice Mohammed Garba, in a ruling, rejected their application to inspect the materials INEC reportedly deployed in the conduct of the February 23 election.

The petitioners, through their counsel, held that section 151 of the Electoral Act allows them to inspect materials used by INEC for the election.

But in his ruling, Justice Garba held that granting their application for access to the server and data of the smart card would imply that the court had delved into and resolved the contentious issue of the existence of a central server at INEC.

He said doing so would further create the impression that the tribunal had concluded that there is a central server where results of the February 23 election were received and stored.

The tribunal, on June 13, had reserved ruling in the application filed by Atiku and PDP on May 8, for access to inspect INEC's central server and smart card reader, they claimed were used in the conduct of the presidential election.

In arguing the motion, lead counsel to Atiku and PDP, Dr. Levy Uzoukwu (SAN), said the request was to enable them to maintain their petition against the outcome of the February 23 presidential poll won by President Muhammadu Buhari, candidate of the All Progressives Congress (APC).

The petitioners, in their petition, had stated that by figures obtained from INEC's server, they, and not Buhari and the APC, which is the third respondent, won the presidential election.

According to the figures allegedly obtained from the server, Atiku said he scored 18, 356,732 votes against Buhari's 16, 741,430 votes.

Uche told the tribunal that the inspection of the server and data was necessary in the interest of justice, transparency and neutrality on the part of the first respondents, INEC.

But INEC, Buhari and the APC opposed the granting of the application.

In his response, INEC's lawyer, Mr. Yunus Usman (SAN), opposed the application for inspection because the Court of Appeal on March 6 had refused the prayers of the petitioners to inspect INEC server and smart card readers.

He said the court having refused the prayers, the tribunal lacked jurisdiction to revisit the same application.

Usman, therefore, urged the tribunal to dismiss the application, adding: "We do not have server."

The lead counsel to Buhari, Chief Wole Olanipekun (SAN), and that of the APC, Mr. Lateef Fagbemi (SAN), also made a similar argument in opposing Atiku's application.

Olanipekun told the tribunal that it lacks jurisdiction to overrule itself while Fagbemi urged the tribunal to be wary of making an order, which it is not capable of enforcing because INEC has said it has no server.

However, delivering ruling on the application, the tribunal in a unanimous decision, refused to grant the application.

It said since parties had argued the issues, the tribunal could not at the interlocutory stage make an order that would affect the substantive issue.

"I decline to grant the reliefs sought; this application is refused and accordingly dismissed," Justice Garba held.

In a swift reaction, Uche and another senior lawyer in the PDP and Atiku's legal team, Chief Mike Ozekhome (SAN), served a notice to appeal the ruling.

Uche, while stressing that the nation is looking forward to the ruling of the tribunal on the petitioners' application seeking to inspect the electoral materials, which he noted is pivotal, said granting the application would in no way prejudice the substantive matter.

He added that their request was in order and within the provisions of the law, which, ought not to be denied them by the tribunal.

He said: "We are not asking the court to decide whether there is a server or not; so the aspect of the court prejudging in the issue doesn't arise at all. All we are saying is that the court should allow us access to inspect the materials, which we are entitled to as INEC is a public institution funded by public funds.

"So, we are going to challenge that."

Ozekhome said INEC, through its Chairman, Professor Mahmoud Yakubu, had on several occasions before and during the election said there was a central server where results would be electronically transmitted to.

He added that INEC officials, including one of the spokespersons of the APC, Mr. Festus Keyamo (SAN), had one time or the other attested to the existence of the central server.

He stated: "All the electoral commissioners maintained that the stage we are in now is a technological stage where things would not be done manually and anything not done with the PVC, which results would be transmitted electronically to the central server would not be valid.

"What the court has said today is like more or less you don't have the right under section 151 of the Electoral Act to maintain your petition."

According to him, the petitioners are not asking for details or content in the central server but simply to grant them access.

He said: "We are appealing the decision because it is like tying your hands behind your back and expecting you to fight. We are appealing the decision because we want to know what is in the central server that they are hiding."

He added that the public is also interested because budget was made for procurement of the central server in billions and it was approved by the National Assembly and it was disbursed.

"And INEC said they have done all that. So where is the money, what is there that they are hiding.

"This is not just a case between Atiku and Buhari; it is a case that have generated public interest for electoral transparency, credibility and freedom," Ozekhome said.

Earlier, the tribunal had granted the application by Buhari to amend his reply to Atiku and the PDP's petition against his victory.

Counsel to Buhari had while responding to the petitioners' claim that Buhari lacked the prerequisite qualification to contest for the office of the president of Nigeria, failed to include his name and the National Identification Number (NIM) on the process as required by law, had sought the tribunal's nod to amend his reply.

The application to amend the reply to reflect the name and NIM on the process was, however, opposed by the petitioners because failure to do so when the reply was filed had rendered the reply incompetent.

"An incompetent process cannot be amended. There is nothing to amend once time for filing of the reply has expired. Further amendment cannot be done", Uzoukwu had said.

However, Olanipekun in urging the tribunal to allow the application for amendment, submitted that the application was harmless as it does not affect the response of the president in anyway nor prejudice against the petitioners.

He added that failure to supply address of the second respondent does not affect the process.

In its ruling, the tribunal agreed that allowing the amendment would do no harm to the petition.

"The omission of name and address does not make the reply incompetent, the order to amend is hereby granted. The second respondent is granted three days from now to file his amendment," the tribunal held.

The matter has been adjourned till June 26 for continuation of pre-hearing.

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