Godwin Tsa, Abuja
After three months of pre-hearing session, the presidential candidate of the People’s Democratic Party (PDP), Atiku Abubakar will on Thursday open his case against the election victory of President Muhammadu Buhari at the Presidential Election Petition Tribunal.
This is even as the tribunal on Wednesday stopped Atiku from re-opening a fresh argument on the objections filed by All Progressives Congress (APC) challenging the competence of his petition.
Atiku had in a move to correct some errors contained in his petition, filed a motion urging the tribunal to set aside the proceedings of June 11 when the APCs motion challenging the competence of Atiku’s petition was moved.
The PDP and Atiku had through their legal team claimed that they were denied the right to a fair hearing and that the APC created confusion when it filed two motions dated May 14 and May 15 on the same issue but later withdrew that of May 14.
It was on this premise that they urged the tribunal to allow them to reopen argument and to grant them leave to file a counter affidavit against the APC motion.
However, counsel to the respondents, Lateef Fagbemi (SAN), for APC, Yunus Usman (SAN), for INEC and Wole Olanipekun (SAN) for President Muhammadu Buhari, vehemently opposed Atiku’s request to reopen the argument and to file counter affidavit on the grounds that time to do so had expired by law.
Especially while canvassing his arguments, Fagbemi insisted that Atiku’s legal team did not give cogent and verifiable reasons upon which the request to reopen argument and file counter affidavit can be granted by the tribunal. He pleaded with the tribunal to dismiss Atiku’s motion.
The APC had in the motion of May 15, prayed the tribunal to void and strike out Atiku’s petition on various grounds of alleged irregularities and non compliance with the legal practitioners act, or in the alternative strikeout several paragraphs that were not supported by facts and laws.
Among others, Fagbemi prayed the tribunal to remove 10 states on the list of states where Atiku alleged electoral malpractices took place in the February 23 presidential election.
The states are Borno, Yobe, Niger, Katsina, Bauchi, Jigawa, Kaduna, Kano, Gombe and Kebbi.
The grouse of APC were that the petitioners failed to disclose the specific polling units where the alleged infraction took place thereby making their claims imprecise, nebulous and vague.
Fagbemi also applied for an order of the tribunal to strike out paragraphs where allegations of act of thuggery, arrest, intimidation and coercion were made against Vice President Yemi Osinbajo, the Nigerian Army, the Nigeria Police and several other individuals who were not joined as defendants in their petition.
APC also applied that the claim by Atiku and the PDP that President Buhari was not educationally qualified to stand for the presidential election be expunged from their petition because it is a pre-election matter which the tribunal has no jurisdiction to adjudicate upon.
Besides, APC also asked the tribunal to strike out the petition for failure to comply with mandatory provisions of paragraph 4 and 7 of the first schedule to the Electoral Act 2010 and Section 134 of the 1999 Constitution.
The APC similarly faulted the petition for being incompetent and in gross violation of Section 2 and 24 of the Legal Practitioners Act and therefore urged that the petition be struck out together with the list of documents and list of witnesses to be relied upon by the petitioners.
Alternatively, Fagbemi had on June 11, while moving the motion, prayed in the alternative that several paragraphs in Atiku’s petition be removed be a vague allegations that cannot be supported by law were made by the petitioner.
Among others, Fagbemi listed 10 states in Atiku’s petition where specific allegations unknown to law were made while he also urged the tribunal to strike out the allegations against the Nigerian Army, Nigeria Police, Vice President, Yemi Osinbajo, who were alleged to have committed acts of violence on election day in favour of President Buhari but we’re not joined in the petition.
The affected states are Borno, Yobe, Niger, Katsina, Bauchi, Jigawa, Kaduna, Kano, Gombe and Kebbi.
Although the legal team of Atiku and his party, led by Dr. Levi Uzoukwu filed notice of objection, the team, however, failed to file counter affidavit to deny the claim of the APC in its motion.
Ruling on Atiku’s motion on Wednesday, the tribunal held that Atiku cannot be allowed to reopen argument especially to file counter affidavit on the objection made against his petition because his mandatory seven days to do so had expired.
The Chairman of the tribunal, Justice Mohammed Garba, who delivered the ruling, agreed with Fagbemi that the mandatory seven days for Atiku to respond to APC motion on the competence of his petition had expired.
Justice Garba held that it was established beyond doubt that Atiku’s legal team was served with APC’s motion on May 16, a day after it was filed and that it was a fatal error and mistake for Atiku’s team to have chosen and elected to file only a notice of objection but refused to file counter affidavit as required by law to dispute the claims of the APC.
The tribunal also disagreed with Atiku that he was denied right to fair hearing because his legal team was adequately represented in all the proceedings and chose to conduct their case the way it suited them.
Justice Garba held that the proceedings of June 11 as they related to the APCs motion challenging the competence of Atiku’s petition cannot be set aside by the tribunal because cogent and verifiable reasons to grant such request of setting the proceedings aside were not advanced by the PDP legal team.
“We agreed that the court has the power to exercise discretion but in the instant case, the discretion has to be exercised judicially and judiciously and since the petitioner in this matter did not advance cogent and verifiable reasons for exercising discretion in his favour, we hereby refuse to do so.”
The tribunal also agreed with Fagbemi that court decisions or proceedings can only be set aside in the face of fraud, lack of fact, lack of jurisdiction and absence of substantial reason or where it is established that the court had been misled, adding at in the instant matter, no evidence was advanced to justify the failure of the petitioner to comply with mandatory seven days within which to respond or to oppose the motion duly served on him on May 16.
“From the established fact, the petitioner failed to make out case for setting aside proceedings of June 11 and also failed even up till today to file counter affidavit,” therefore, the motion by the petitioner that his argument be reopened is bound to fail and is hereby dismissed for lacking in merit.
Meanwhile, Justice Garba who addressed lawyers representing the parties in the petition said: “You will recall on Monday that you indicated that trial should begin on Thursday.
“In line with that, the pre-hearing session for this petition will have to end today (Wednesday) to enable us to commence trial in respect of this petition from Thursday, July 4, 2019.
“It is on that basis that I will now present the report of the pre-hearing session.”
Garba had subsequently presented the report and closed the pre-hearing court session.