•Says PEPC erred in law, judgement miscarried
By Vivian Okejeme Abuja
The Presidential candidate of the Peoples Democratic Party (PDP), Alhaji Atiku Abubakar and his party, have stormed the Supreme Court with 35 grounds of appeal seeking nullification of the declaration of Bola Ahmed Tinubu as winner of the presidential election.
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.
The doctrine of legitimate expectation was first developed in English law as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. In Nigeria, the doctrine of legitimate expectation demands that a public authority shall respect and apply its stated position or sustained practice in exercising its powers on members of the public.
Atiku and PDP requested the apex court to void and set aside the September 6, judgment of the Presidential Election Petition Court, which upheld the declaration of Tinubu as President by the Independent National Electoral Commission (INEC) on March 1.
In the Notice of Appeal, Atiku prayed the Supreme Court to declare him the authentic winner of the February 25 presidential election based on lawful votes cast by Nigerians during the poll.
He 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.
While challenging the entire judgment of the tribunal, Atiku claimed 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.
He averred that all the Collation Officers, Returning Officers and INEC Chairman are under a statutory obligation to confirm and verify that the results being collated is consistent with the results directly transmitted from the polling units before making final announcement on the general elections.
Faulting the entire decision further, the appellant in ground eight claimed that the lower court erred in law when in its interpretation of Section 134(2) of the 1999 Constitution held that Tinubu does not need to score 25% of lawful votes cast in the Federal Capital Territory (FCT).
According to Atiku, the issue submitted to the tribunal called for the interpretation of the material word “and” in the said Section 134(2), adding that the provisions of the Section are clear and unambiguous.
Atiku contended that the tribunal made grave error and miscarriage of justice in striking out the witness statement on oath and the entire evidence of his subpoenaed witnesses on the erroneous grounds that the said statements were not filed along with the petition.
According to him, the subpoenaed witnesses were essentially persons whose witness statement on oath could not practically be ready and available at the time of preparing and filing of his petition.
“PW 21 and PW 26 were witnesses whose witness statements on oath and experts reports were predicated upon the order of the same tribunal made pursuant to Section 146(1) of the Electoral Act, 2022, which authorized them on behalf of the appellants to proceed to inspect electoral documents in the custody of the 1st respondents (INEC) for the maintenance of the petition.
“The said witness statement on oath and the reports were products of the inspection conducted pursuant to the order of court and could not have been produced in advance before the filing of the petition, same being dependent on access to electoral documents in the possession of an adverse party “.
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 and was to amputate the evidential limbs of the case of the appellant and peremptorily and technically knock out the case of the appellant.
In ground 7 of the appeal, Atiku/PDP averred that the lower Court erred in law when it failed to nullify the presidential election held on 25th February 2023 on the ground of non-compliance with the Electoral Act 2022 when by evidence before the Court, the 1st Respondent (INEC) conducted the election based on very grave and gross misrepresentation contrary to the principles of the Electoral Act 2022, based on the “doctrine of legitimate expectation”.
It 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.
In grounds 31, Atiku and PDP further contended that the tribunal erred in law when on the preliminary objection of INEC that one honourable Friday Adejo Chairman of Olamaboro Local Government Area of Kogi State and Governor Yahaya Bello of Kogi State ought to have been joined as respondents in the petition on the grounds of not infringing on their fundamental rights to fair hearing.
Atiku said that the said persons are not necessary or statutory respondents as envisaged by Section 133 of the Electoral Act, adding that no relief whatsoever was claimed against the said persons for which their non-joinder will affect their rights to fair hearing.
Atiku, therefore, maintained that the Supreme 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 in the appeal by the Supreme Court.