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7 Mar 2019

Tribunal grants Atiku access to inspect electoral materials used by INEC

The Presidential Election Petitions Tribunal on Wednesday granted the request by the Peoples Democratic Party and its presidential candidate, Alhaji Atiku Abubakar, to be allowed to inspect the electoral materials used by the Independent National Electoral Commission for the conduct of the February 23 polls.

But the three-man panel led by Justice Abdul Aboki unanimously rejected other prayers by the applicants seeking orders permitting them to, among others, photocopy and scan the electoral documents.

The tribunal also refused their requests to be allowed to conduct forensic examination and forensic analysis of the materials and have access to card reader data and information contained in the smart card reader, cloud and electronic storage used for the polls.

The two other members of the panel, Justices Peter Ige and Emmanuel Agim, agreed with the lead ruling by Justice Aboki.

Delivering the lead ruling, Justice Aboki said by virtue of the provisions of section 151 of the Electoral Act on which the applicants’ motion ex parte was anchored, Atiku and his party were only entitled to inspect the electoral materials and the certified true copies of all the materials used for the polls.

He said, “After a careful consideration of the application, a perusal of section 151 of the Electoral Act 2010 (as amended) and the decisions of this court in Aregbesola Vs Oyinlola 2009, Akintayo Vs Jolaoye and Hope Uzodinma Vs Osita Izunaso, it is hereby ordered:

“Leave is granted to the applicants to bring this application.

“The first respondent (INEC) shall allow the applicants to inspect the polling documents and be given the certified true copies of the polling documents used for the conduct of the presidential election across the country to enable them to institute and maintain their election petition.

“Prayers 4, 5, and 6 are hereby rejected.”

Rejecting the three prayers, the tribunal ruled that the plaintiffs could only be allowed to inspect the materials “at this stage.”

Justice Aboki held that the rejection of the prayers seeking permission to scan and photocopy the materials, and have access to card reader information, data in the cloud and electronic storage, would help “to protect the integrity of the materials in the custody of INEC.”

He added that the requests “cannot be regarded as inspection of polling materials under section 151 of the Electoral Act.”

He also explained that the Court of Appeal, in the case of Hope Uzodinma Vs Osita Izunaso, had set aside such orders when they were made by a lower election petitions tribunal on the grounds that “they were found to be outside section 151 of the Electoral Act.”

Justice Aboki added, “The orders violated the right of the respondents to fair hearing under section 36 of the Constitution.”

Atiku and his party came second behind President Muhammadu Buhari and his All Progressives Congress in the results of the February 23 poll declared by INEC.

Aggrieved by the outcome of the poll, Atiku and the PDP had as the first step required to start their legal battle to challenge the results, filed their ex parte motion before the tribunal seeking access to the electoral materials to enable them to file a petition before the tribunal.

Earlier on Wednesday, the three-man panel, in a pre-hearing session of the tribunal, entertained the applicants’ argument for about 45 minutes and rose.

It promised to return in one hour’s time to deliver its ruling but did not return until about three hours after.

The applicants’ legal team was led by Mr Livy Ozoukwu (SAN), but Chief Chris Uche (SAN), made submissions on behalf of the team.

As expected in an ex parte hearing, the respondents – President Buhari, his APC and the Independent National Electoral Commission – were not represented by their lawyers at the proceedings.

Uche said during the Wednesday’s hearing that his clients’ ex parte application was anchored on section 6(6)(a) and (b) of the Constitution, section 151 of the Electoral Act and paragraph 47(1),(2), and (3) of the Electoral Act.

He said it was to enable them to have access to information which would help them to file their petition against the outcome of the presidential election which INEC declared was won by Buhari and the APC.

He added that the ex parte motion contained six prayers, one of which sought the tribunal’s leave to bring the motion up in the tribunal’s pre-hearing session.

He added, “Prayers 2 to 6 are in summary seeking orders of this honourable court to allow the inspection and production of election documents used by the Independent National Electoral Commission for the conduct of the presidential election to enable the applicants to institute and maintain an election petition.”

Uche had insisted that there were authorities of the Court of Appeal which had interpreted section 151 of the Electoral Act to mean that petitioners could be granted all the prayers sought in the ex parte application.

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