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Supreme Court Rejects Atiku’s, PDP’s Appeals

MOVES by the Peoples Democratic Party (PDP) and its candidate in the February 23 presidential election, Alhaji Atiku Abubakar to have access to the Independent National Electoral Commission (INEC) server ended on Tuesday at the Supreme Court.

It was a double loss for the opposition party and its candidate as the apex court rejected the appeals they filed against two earlier decisions of the Presidential Election Petition Court (PEPC).

It came ahead of Wednesday’s resumption of proceedings at the PEPC, where parties are scheduled to adopt their written addresses.

The PEPC will today reserve a date for judgment after adoption of the addresses by the parties – PDP/Atiku; All Progressives Congress (APC)/President Muhammadu Buhari and INEC.

It was learnt on Tuesday the PEPC has 21 days left out of the 180 days within which it has to deliver judgment in the petition.

The PDP and Atilku are challenging the outcome of the election won by President Buhari.

The first appeal numbered: SC/739/2019 was filed against a ruling of the PEPC, in which it held that the Atiku and the PDP do not have a reply to an application filed on May 14, 2019 by the APC seeking among others, the dismissal of their (Atiku and the PDP) challenging Buhari’s victory.

The second appeal numbered: SC/815/2019, sought to reverse the decision given by the PEPC on June 24 rejecting their request to inspect a supposed central server purportedly used by the INEC to transmit results.

When the first appeal was called on Tuesday, appellants’ lawyer, Eyitayo Jegede (SAN) applied to withdraw it on the grounds that the time allowed in law, for the hearing of such an election related appeal has expired.

Jegede said the lawyer, who led the appellants’ team on July 30, when case last came up, failed to inform the court that the time for the hearing of the appeal would lapse before August 20, to which the case was adjourned.

He then applied to withdraw the appeal, an application the respondents: INEC (represented by Yunus Usman, SAN); Buhari (represented by Wole Olanipekun, SAN) and APC (represented by Charles Edosomwan, SAN) did not object to Jegede’s request to withdraw the appeal.

Justice Datijo Mohammed, who presided over the court’s five-man panel, subsequent gave a bench ruling, in which he struck out the appeal.

Other members of the panel, Justices Mohammed, Kumai Akaahs, Paul Galumje and Uwani Abba-Aji agreed with the lead decision.

In dismissing the second appeal, the court unanimously held that the appeal was without merit.

Justice Centus Chima Nweze, who read the lead judgment, said: “I see no reason for departing from the reasoning of the lower court. I find that this appeal is without merit, and it is accordingly, dismissed.”

Justice Nweze upheld the arguments by Olanipekun, Edosomwan and Usman, to the effect that the appellants, having failed to show the PEPC wrongly exercised its discretion in arriving at the June 24, 2019 ruling, the Supreme Court as no reason to reverse it.

The judge, in upholding the June 24 decision of the PEPC, said the lower court effectively exercised its discretion judicially and judiciously when it elected not to decide the issue of the existence or otherwise of a server at the interlocutory stage.

The five members of the PEPC panel, led by Justice Mohammed Garba, were unanimous, in their June 24, 2019 ruling, in dismissing the application filed by Atiku and the PDP.

Justice Garba, who gave the lead ruling, was of the view that, since parties to the petition by Atiku and PDP were disputing the existence or otherwise of “an INEC central server,” it was wrong for the court to grant the petitioners’ request to inspect a server, whose existence, usage or otherwise was being disputed by parties.

He noted that by the averments contained in processes filed by parties, they have joined issues on whether or not there is a central server and whether or not INEC deployed it for the election. He added that granting the petitioners’ request to inspect a server, which the supposed owner said did not exist, will amount to the court agreeing that a server actually exist.

Justice Garba said the issue about the existence of a server, which forms a substantial part of the petition filed by Atiku and the PDP, should be determined at the hearing of the main petition.

He noted: “Based on the facts deposed to in the pleadings, in paragraphs 6 to 8 of the petition, which is to the effect that the election results were electronically transmitted to the 1st respondent’s server, in addition to the accreditation information from the smart card readers used for accreditation use for the election.

“And the respondents, having joined issues with the petitioners in respect of the same data, said to have been transmitted to the 1st respondent’s server, this court has to be circumspect and be minded, to peruse the petition as well as the respondents’ replies thereto, in order to confirm whether, in fact, parties have truly joined issues on the existence and use of a central server.

“There are, in paragraphs 26, 27, 28 and 29 of the petitioners’ petition, facts that for the said election, held on the 23rd of February 2019, the 1st respondent deployed smart card readers in accreditation as well as transmit election results directly from the polling units to the central server.

“But, the 1st respondents, in paragraph 6 of its reply, has totally denied the existence and use of electronic transmission of results in the presidential election of 2019.”

Justice Garba, after analyzing the averments in the processes filed by parties, held that, the averments in the processes filed by parties “have clearly and unequivocally shown that parties have, indeed joined issues on the existence or otherwise of a central server and whether the results of the presidential election held on the 23rd of February 209 was electronically transmitted

“Now, given the germane nature of this issue, which prove can only emerge at the hearing of the substantive petition, the question that comes to the fore is whether it will be rational; whether it will be judicious and to meet the end of justice, in accordance with the law, that the court should exercise its discretion in favour of the petitioners/applicants to grant access to what they call central server, in respect of which parties have joined issues.

“However, from the pleadings before us, I am of the view the averments in the petition and the respondents’ reply thereto, with regard to the existence of aa central server and whether there was electronic transmission of the results of the presidential election, held on the 23rd of February 2019 and which issues have, admittedly been joined, substantially by parties, it is no doubt out of place and will not be expedient that this court should grant the prayers contained in the application.

“In other words, if the court grants the prayers sought in this application, it would have delved into and resolved the substantially issues aforementioned as regard the existence of a server and the electronic transmission of the election results, which scenario would be unpalatable and create the impression that this court has indeed, confirmed that there is a central server into which the result of the presidential election conducted on February 23, 209 was transmitted and stored by the 1st respondent.”

Justice Garba said the court should be careful, while determining preliminary issues, and should avoid making declaration and observation that could touch or prejudging the substantial issue.

He added that the court cannot, in determining preliminary issued, determine the substantial issues.

Justice Garba said: “I decline to grant the reliefs sought in the application. The application filed on May 8 is hereby refused and dismissed.”

Atiku and the PDP, in their petition before the tribunal, claimed that they won the election based on results they downloaded from the said INEC central server, which INEC has consistently denied its existence.

INEC has consistently denied that it deployed any server for the transmission of the election results and that the extant Electoral Act and Electoral Guidelines do not allow electronic transmission of election results.

In the application, Atiku and PDP had prayed the tribunal for:

*An order granting access or the court’s supervised access and inspection by the petitioners in the presence of the 1st and 2nd respondents, if they so desire, of the 1st respondent’s server, wherein information are recorded and stored in data packages relating to the accreditation of voters and transmission of results from the presidential election, the subject matter of the petition.

*An order directing the 1st respondent’s Chief National Electoral Commissioner and /other officers to grant the petitioners access to the said data base in the 1st respondent’s central server.

*An order granting leave to the petitioners to inspect and obtain certified true copies (CTC) of Smart Card Readers’ accreditation data from the smart card readers used for the said election as stored in the 1st respondent’s server.

*An order granting leave to the petitioners to file the report of the inspection and analysis thereof at the trial.