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Just a fortnight after the Presidential Election Petition Tribunal upheld President Bola Tinubu’s victory in the February 25th elections, Atiku Abubakar and Peter Obi, the presidential candidates of the Peoples Democratic Party and Labour Party, have lodged appeals with 86 distinct grounds at the Supreme Court to challenge the tribunal’s ruling and invalidate Tinubu’s election.

In their separate appeals submitted on Tuesday, both candidates are urging the highest court to overturn the PEPT judgment, asserting that it was erroneous. Atiku’s appeal centers on 35 grounds of contention, highlighting issues such as the tribunal’s decision on electronic result transmission, Federal Capital Territory votes, and other pivotal aspects.

Meanwhile, Peter Obi’s appeal challenges the September 6th judgment on 51 grounds.

Previously, the PEPT, led by Justice Haruna Tsammani, had unanimously held that Atiku, Obi, and other petitioners failed to provide substantial evidence to support their claims against the Independent National Electoral Commission’s conduct of the election. The tribunal found that the evidence presented, both documentary and oral, did not substantiate allegations of irregularities, corrupt practices, non-compliance with electoral guidelines, and other accusations made by the petitioners seeking to annul Tinubu’s election.

Atiku, who secured the second position in the election, had sought the court’s intervention to annul Tinubu’s election and declare him as the rightful winner, while Peter Obi, despite coming third, asserted his claim to victory. In the Notice of Appeal dated September 18 and filed by Chief Chris Uche, SAN, Atiku sought the Supreme Court’s permission to hear the appeal and overturn the lower court’s judgment.

Atiku’s appeal
Atiku and the PDP have presented a series of requests to the Supreme Court. They are asking the court to establish that Tinubu was not legitimately elected with the majority of votes in the February 25, 2023 presidential election, asserting that the declaration and return of Tinubu by INEC as the winner are unlawful, unconstitutional, and null and void.

Furthermore, they want the court to determine that Tinubu was not qualified to contest the election at the time. They seek a declaration that Atiku, having secured the majority of lawful votes, should be declared the rightful winner of the election and sworn in as President.

Alternatively, Atiku is requesting an order for a run-off election between himself and Tinubu. In the first ground of the appeal, Atiku argues that the tribunal erred in not upholding the mandatory electronic transmission of results as outlined in the Electoral Act of 2022, emphasizing the importance of transparency and integrity in the election process.

He maintains that failure to comply with the electronic transmission requirement at polling units amounts to non-compliance with the Electoral Act’s provisions. Atiku also contends that the tribunal erred by not recognizing the necessity of electronically transmitted results from polling units to INEC’s collation system, contrary to the Electoral Act of 2022.

Additionally, he asserts that the tribunal wrongly shifted the burden of proof onto him.

Atiku and the PDP also argued that the lower court made a legal error by not annulling the presidential election due to non-compliance with the Electoral Act of 2022. They contended that the first respondent (INEC) conducted the election based on significant and misleading misrepresentations, which violated the principles of the Electoral Act of 2022 and the doctrine of legitimate expectation.

They emphasized that the Electoral Act of 2022 mandated the use of the Bi-modal Verification Accreditation System and INEC’s Results Viewing portals during the 2023 general election. The appellants noted that INEC’s Chairman, Prof Yakubu Mahmoud, publicly provided assurances, commitments, and clear representations to candidates and political parties that results from polling units must be electronically transmitted or directly transferred by presiding officers.

Atiku further asserted that INEC conducted the presidential election based on “serious misrepresentation” to the appellants and the general voting public. It was conveyed that presiding officers would electronically transmit election results directly from polling units to INEC’s collation system.

However, contrary to these explicit representations, commitments, and guarantees, the first respondent did not employ electronic transmission of election results or an electronic collation system during the said election, thereby undermining the fundamental reasons for enacting the new Electoral Act of 2022 and introducing technological innovations.

Public institutions
Instead of holding the first respondent (INEC) accountable as a public institution for the representations it made, which created legitimate expectations, the lower court incorrectly absolved the first respondent of any responsibility by stating that the use of technological innovations for transparency was not mandatory.

The appellants also contested the tribunal’s decision regarding the requirement of 25 percent of votes in the Federal Capital Territory (FCT) in several grounds, particularly in ground 12, where Atiku criticized the lower court’s ruling that 25 percent of total votes cast in the FCT was not a precondition for a candidate to be declared duly elected under the Constitution.

Atiku challenged the tribunal’s decision to strike out the statements on oath from his witnesses, explaining that these statements and reports were generated during the inspection ordered by the court and could not have been prepared in advance, as they relied on access to electoral documents held by an adverse party.

Additionally, Atiku argued that the lower court erred in dismissing the applicability of certain rules governing the filing of witness statements for subpoenaed witnesses, as provided in the Federal High Court (Civil Procedure) Rules, 2019, to election petitions.

Regarding Tinubu’s qualification to contest the presidential election, Atiku maintained that the grounds for qualification and disqualification are defined by the Constitution and are exhaustive. He also disagreed with the court’s characterization of their collation agents’ testimonies as hearsay.

On the issue of exhibits presented to the court without a direct witness connection, Atiku and the PDP argued that the lower court erred by not considering section 137 of the Electoral Act of 2022, which eliminates the need for oral evidence when non-compliance is evident in certified true copies of electoral documents. They asserted that all the electoral documents in question were certified true copies obtained from INEC itself.

The appellants rejected the justices’ assertion that “a document made in anticipation of litigation or during its pendency by persons interested is rendered inadmissible in evidence by virtue of section 83 (3) of the Evidence Act, 2011.”

They maintained that PW21 and PW26, who prepared these documents and through whom they were presented, are experts. These exhibits resulted from court-ordered inspections of electoral documents held by the first respondent (INEC). The provision of section 83(3) of the Evidence Act, 2011, they argued, does not apply to expert testimony.

The appeal criticized the justices for not properly assessing the appellants’ exhibits and for not admitting Senator Dino Melaye’s evidence, which they deemed as hearsay.

Atiku and the PDP expressed dissatisfaction with the justices for declaring that the evidence of PWs 19, 20, and 22 did not advance the petitioners’ case, and they noted that the tribunal used disparaging language against them in its judgment.

Peter Obi, in his appeal filed by Dr. Livy Uzoukwu, SAN, urged the Supreme Court to, among other things, allow his appeal and overturn the “perverse judgment” of the lower court.

Obi disagreed with the entire decision of the panel, particularly pages 3-327 of the judgment, except for the rulings in favor of the appellants. He argued that the tribunal justices made an incorrect conclusion when they claimed that the petitioners did not specify the polling units where irregularities and malpractices occurred or the figures of votes they alleged were manipulated.

Obi clarified that the appellants had listed all the documents referred to in their petition through incorporation or reference and therefore adhered to paragraph 4(5)(c) of the First Schedule to the Electoral Act of 2022. He emphasized that a party should not be penalized for meticulously complying with both statutory and judicial laws established in Nigeria.

Obi and the Labour Party disagreed with the court’s assertion that paragraph 72 of their petition was vague, asserting that it raised concerns about over-voting in polling units across 13 states specified in the petition. They argued that this was backed by a detailed itemization in a forensic report presented but disregarded by the lower court.

In ground seven of his appeal, Obi asserted that the justices committed a legal error and caused a significant miscarriage of justice by stating that the burden of proof rested on the appellants to demonstrate that the first respondent (INEC) failed to adhere to the mandatory provisions of section 73(2) of the Electoral Act during the disputed presidential election.

Obi argued that the tribunal overlooked the fact that the chairman of the first respondent is the custodian of election documents, as defined by both the Electoral Act and the Evidence Act. Despite serving subpoenas on the first respondent, they failed to produce the election documents throughout the trial, which, according to Obi, constituted a violation of a court order and raised the presumption of withholding evidence under section 167(d) of the Evidence Act.

He contended that the court lacked jurisdiction when it struck out the evidence of ten out of the thirteen witnesses presented by the appellants, citing relevant legal provisions and precedents. Obi also argued that the justices made a legal error and reached an unjust decision when they dismissed the evidence of certain witnesses as individuals with an interest in the case.

Obi further discussed various sections of the Electoral Act of 2022, emphasizing the provisions related to electronic result transmission. Regarding the alleged criminal conviction of the former APC flag bearer in the United States, the appellants argued that the justices erred in their legal interpretation.

They also addressed the issue of the president’s role as the governor of Abuja, stating that he must secure 25 percent of votes in the Federal Capital Territory to assume that position.

Regarding the dismissal of the European Union report, the appellants argued that section 104(1) of the Evidence Act of 2011 did not prohibit the creation of multiple original copies of public documents or depositing some of these copies with multiple public offices or officers.

In response to these appeals, the APC’s Director of Publicity, Bala Ibrahim, stated that there was no cause for concern and that the ruling party had its legal team prepared to address the matter.