Atiku’s Evidence From Chicago Irrelevant, Tinubu Tells Supreme Court
President Bola Tinubu has asked the Supreme Court to discountenance his Chicago State University academic records attached by the presidential candidate of the Peoples Democratic Party, Atiku Abubakar, to his election petition appeal, saying it is alien to the judicial proceedings in the country.
Tinubu asserted that the CSU discovery was not part of the record or the judgment of the Presidential Election Petitions Tribunal, urging the apex court not to admit it.
The president further said the former vice-president had the habit of first filing a petition and afterwards hunting for evidence, noting that he had exhibited that while appealing the tribunal judgment.
The president in his response to Atiku’s appeal filed Saturday by his lawyers led by Wole Olanipekun, SAN, held that the claim that his credentials contained discrepancies was merely cooked up by the PDP standard bearer in the February presidential election.
He said, “Appellants’ submission under paragraph 6.45 of their brief further exposes the entire attitude of the appellants before the lower court, that is, the attitude of first filing a petition and then fishing for evidence during the pendency of the petition and even up to the point of appeal to this honourable court.
“Without prejudice to our objection to this issue, we submit that the arguments regarding a purported “Case No. 1:23-CV05009-Re: Application of Atiku for an Order Directing Discovery from Chicago State University…” is alien to these proceedings, does not arise from the record or the judgment of the lower court and cannot be countenanced by this honourable court and we urge the court to so hold.”
Stating that he was validly returned as the winner of the presidential poll by the Independent National Electoral Commission, the former Lagos State governor added that by statistics, he garnered one-quarter or 25 per cent of the total votes in 29 states of the federation.
Tinubu prayed the court to dismiss Atiku’s appeal and affirm the judgment of the Presidential Election Petition Court which upheld his election, having polled the highest number of votes.
He further stated Atiku resorted to cooking up allegations against him when he and the PDP failed to secure evidence to support their claim that he was not qualified to have contested the election.
Tinubu argued that Atiku brought up fresh issues, which included previous conviction/fine, forgery, and dual citizenship, among others after he had responded to his petition.
He said, “For the 3rd respondent, we beckon on the court towards the entirety of the 3rd respondent’s reply on the one hand (see pages 461-514 (vol.1) of the record), and the whole of Part B (save paragraph 35 thereof) of the petitioner’s reply to the 3rd respondent’s reply (see pages 1722 -1731 (vol.3) of the record) on the other hand.
“A dispassionate examination of these paragraphs will reveal that the appellants as petitioners were only out to spring surprises at the respondent as none of the highlighted paragraphs of their said replies was meant to reply to any new issue raised in the respondents’ reply.
‘“It was through these paragraphs that they introduced various fresh issues, including allegations of previous conviction/fine, forgery, and dual citizenship against the 2nd respondent amidst sundry unfounded claims.’’
Responding to the appellants’ claims on modes of election result transmission, the President cited paragraphs 38 (I); 50(xx), and 53 (xii) of the Electoral Act and submitted that the Act created an alternative between electronic transmission and transfer with the use of ‘’or’’.
He noted, “For instance, paragraph 38(i), which deals with movement from the polling unit states that ‘on completion of all the polling unit voting and results procedures, the Presiding Officer shall: (i) Electronically transmit or transfer the result of the Polling Unit direct to the collation system as prescribed by the Commission.’
“Paragraph 50(xx) provides that ‘the Registration Area/Ward Collation Officer shall: Electronically transmit or transfer the result directly to the next level of collation as prescribed by the Commission.
“ Paragraph 53(xii) provides that ‘the Local Government/Area Council Collation Officer for the Presidential Election shall Electronically transmit or transfer the result directly to the next level of collation, as prescribed by the Commission.”
Tinubu held that in any event, the absence of the electronically transmitted results or results from the IREV portal did not necessarily create a brick wall in the absence of an INEC hardcopy of collated results.
On the issue of 25 per cent in the Federal Capital Territory, he said the PDP candidate failed to prove that he must record 25 per cent of votes cast in the FCT to be declared winner, pointing out that FCT residents do not have special voting rights over others.
He said, ‘’While the appellants did not even discharge the burden placed on them to demonstrate their assertion that a candidate in a presidential election should win 25 per cent of the votes in the FCT before he can be declared winner, the respondent tendered Exhibit RA 11 titled, ‘Report of the Committee on the Location of the Federal Capital Territory,’ to demonstrate the fact that no such thing was ever contemplated. See also section 179(2)(b) of the Constitution.
‘’We submit that the provisions of the constitution cannot be considered in isolation as suggested by the appellants, but as a whole, in line with a plethora of judicial authorities.
“We urge the court to hold that any election where the electorate exercise their plebiscite, there is neither a ‘royal’ ballot nor ‘royal’ voter; and that residents of the FCT do not have any special voting right over residents of any other state of the federation in a manner similar to the concept of preferential shareholding in company law. We, therefore, urge the court to resolve this issue in favour of the respondent and against the appellant.”
Tinubu accused Atiku of hiding the statement of his witnesses to catch him off-guard at the tribunal.
He said, “The rather concerning observations are that the appellants, as petitioners, knew they would be fielding more witnesses, so at the pre-hearing session, they indicated the intention of calling more than 100 witnesses; and the fact that these witnesses were available to the petitioners all through the preparation of the petition and could in fact have had their witnesses statements frontloaded together with the petition.
‘’In fact, PW21 and PW26 both admitted the fact that they were recruited by the petitioners for the purpose of the assignment, while PWs 12, 13, 14, 15, 16, 17, 18, 23, 24 and 25 were all invited in their personal capacities and served in person with the subpoenas (see pages 7345, 7347, 7354, 7358, 7362, 7367, 7372, 7419, 7424, 7427 (vol.10) of the record).
“The indisputable fact is that these witnesses were available to the petitioners as of the time of filing the petition In fact, PW19 confessed before the lower court that PW21 was a member of the 2nd petitioner’s situation room during the election and that the reports to be tendered by PW21 (Exhibits PAHI-PAH4) were compiled between 1st March and 26 March 2023, while the petition was filed on 21st March 2023 (See pages 7387 (vol.10) of the record).
“It was very obvious that the appellants, as petitioners before the lower court, deliberately chose to hoard the statements of these witnesses in order to cause a surprise on the respondents, thus turning an exercise as serious as litigation to a hide and seek bout.
“They then attempted to circumvent the mandatory provisions of section 285(5) of the Constitution and paragraph 4(5) of the First Schedule to the Electoral Act, by cloaking the witnesses in the garb of subpoenaed witnesses.”
