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As legal fireworks begin: INEC, APC state their positions before Presidential Election Petition Court

By Taiye Agbaje
Abuja, April 11, 2023
The Independent National Electoral Commission (INEC) has asked the Presidential Election Petition Court (PEPC) to dismiss a petition filed by Labour Party (LP) and its presidential candidate, Mr. Peter Obi, saying the reliefs sought are not grantable.
INEC, the 1st respondent, stated this in its reply filed on Monday night at the PEPC’s Secretariat by its lawyer, Abubakar Mahmoud, SAN, in Abuja.
The commission prayed the court to either “dismiss or strike out the petition for being grossly incompetent, abusive, vague, nebulous, generic, general, non-specific, ambiguous, equivocal, hypothetical and academic.”
Meanwhile, the All Progressives Congress (APC), had, on Monday, prayed the PEPC in Abuja to dismiss the petition filed by the LP and Mr. Obi, against the emergence of Sen. Bola Tinubu as president-elect in the Feb. 25 election.
The APC, the 4th respondent, urged the PEPC to reject the petition in its notice of preliminary objection marked: CA/PEPC/03/2023 and filed at PEPC’s Secretariat, Monday night, by Thomas Ojo, a member of the party’s legal team led by Lateef Fagbemi, SAN, in Abuja.
The party asked the tribunal to dismiss the petition with substantial cost on the grounds that it lacked merit and was frivolous.

The News Agency of Nigeria (NAN) reports that Mr Obi, the 1st petitioner, and LP, the 2nd petitioner, had sued INEC, Sen. Bola Tinubu, Sen. Kashim Shettima and All Progressives Congress (APC) as 1st to 4th respondents respectively.

The petitioners are seeking the nullification of the election victory of Tinubu and Shettima in the Feb 25 presidential poll.
Tinubu, who was announced as having defeated 17 other candidates who took part in the election, scored a total of 8,794,726 votes, the highest of all the candidates.
NAN reports that while former Vice-President Atiku Abubakar of the Peoples Democratic Party (PDP) was announced as second with 6,984,520 votes in the poll, Obi was announced as third with 6,101,533 votes.
Abubakar and PDP are also challenging the outcome of the poll in a separate petition.
However, in the petition marked: CA/PEPC/03/2023 filed by Obi and LP’s lead counsel, Livy Uzoukwu, they contended that Tinubu “was not duly elected by majority of the lawful votes cast at the time of the election.”
The petitioners claimed there was rigging in 11 states, adding that they would demonstrate this in the declaration of results based on the uploaded results.
They said INEC violated its own regulations when it announced the result despite the fact that at the time of the announcement, the totality of the polling unit results had yet to be fully scanned, uploaded and transmitted electronically as required by the Electoral Act, among others.
In its notice of preliminary objection, INEC argued that the grounds on which the petition was based were defective, having regard to the vague and imprecise averments supporting the said grounds.
It said that the ground of the petitioners bordering on non-compliance with the provisions of the Electoral Act, 2022 and corrupt practices did not disclose a reasonable cause of action for failure to plead specific particulars and figures as to how the alleged non-compliance complained of substantially affected the results of the election.
It said in view of the above argument, “Prayers 3, 5(i) and 5(11) of the petition predicated on the ground of non-compliance in Paragraph 20(11) of the petition are ungrantable.”
It further said that the ground of the petition that Tinubu was not elected by majority of lawful votes cast as contained in Paragraph 20(iii) of the petition was defective for failure to plead the alleged unlawful votes to be deducted and/or lawful votes to be credited to the petitioners.
INEC argued that the petitioners’ prayer to declare that Obi scored majority of lawful votes cast at the election and be declared winner was defective for failure to join necessary parties and for lack of requisite particulars and pleading to support same.
The commission said that though Obi was a candidate at the election, it however disagreed that he has a right to be returned as elected, “not having polled majority of the lawful votes cast at the election and /or secured one quarter of the votes cast at the election in each of at least two-thirds of all states in the federation and the FCT.”
The commission said all political parties intending to sponsor candidates in the election were required to submit lists of their agents and they were expected to observe the election process at their units, sign and collect result sheets on behalf of their political parties at the close of polls.
It argued that some of the political party agents whose names were on the list submitted to it were however absent at their polling units while some others who were present neglected to participate in the election process.
According to INEC, the petitioners (Obi and LP) did not have polling agents in all the polling units across Nigeria as they only submitted a list of 134, 874 polling agents which is 41, 972 short of the 176, 846 polling units across Nigeria.
It disagreed with the petitioners, insisting that they were not represented in many or some of the polling units in the country.
The commission argued that while Shettima, the vice president-elect, was duly nominated and sponsored to contest the election, it also said that Tinubu and Shettima were duly declared and returned as elected and issued Certificates of Return having fulfilled the requirements of the constitution to be declared winners and returned.
Responding to the prayers of Mr. Obi and the LP, the APC prayed the court to dismiss the suit on the ground that Obi, the 1st petitioner, lacked requisite locus standi to institute the petition because he was not a member of LP at least 30 days to the party’s presidential primary to be validly sponsored by the party.
It said: “The 1st petitioner (Obi) was a member of PDP until May 24, 2022.
“1st petitioner was screened as a presidential aspirant of the PDP in April 2022.
“1st petitioner participated and was cleared to contest the presidential election while being a member of the PDP.
“1st petitioner purportedly resigned his membership of PDP on May 24, 2022 to purportedly join the 2nd petitioner (Labour Party) on May 27, 2022.
“2nd petitioner conducted its presidential primary on May 30, 2022 which purportedly produced 1st petitioner as its candidate, which time contravened Section 77(3) of the Electoral Act for him to contest the primary election as a member of the 2nd petitioner.”
The party argued that Obi was not a member of LP as at the time of his alleged sponsorship.
The APC argued that “by the mandatory provisions of Section 77 (1) (2) and (3) of the Electoral Act 2022, a political party shall maintain a register and shall make such register available to INEC not later than 30 days before the date fixed for the party primaries, congresses and convention.”
It stated further that all the PDP’s presidential candidates were screened on April 29, 2022, an exercise which Obi participated in and was cleared to contest while being a member of the party.
It argued that the petition was incompetent since Obi’s name could not have been in LP’s register made available to INEC as at the time he joined the party.
The APC equally argued that the petition was improperly constituted having failed to join Atiku Abubakar and PDP who were necessary parties to be affected by the reliefs sought.
 “By Paragraph 17 of the petition, the petitioners, on their own, stated that Alhaji Atiku Abubakar came second in the presidential election with 6,984,520 votes as against the petitioners who came third with 6,101,533 votes;
“At Paragraph 102 (iii) of the petition, the petitioners urged the tribunal to determine that 1st petitioner scored the majority of lawful votes without joining Alhaji Atiku Abubakar in the petition.
“For the tribunal to grant prayer (iii) of the petitioners, the tribunal must have set aside the scores and election of Alhaji Atiku Abubakar,
“Alhaji Atiku Abubakar must be heard before his votes can be discountenanced by the tribunal,” it said.
The party said the petition and the identified paragraphs were in breach of the mandatory provisions of Paragraph 4(1)(D) of the 1st Schedule to the Electoral Act, 2022.
According to APC, Paragraphs 60 — 77 of the petition are non-specific, vague and/or nebulous and thereby incompetent contrary Paragraph 4(1)(d) of the Ist Schedule to the Electoral Act, 2022;
It said that the allegations of non-compliance must be made distinctly and proved on polling unit basis but none was specified or provided in any of the paragraphs of the petition.
“Paragraphs 59-60 of the petition disclose no identity or particulars of scores and polling units supplied in 18,088 units mentioned therein,” it added.
The party, therefore, argued that the tribunal lacked the requisite jurisdiction to entertain pre-election complaints embedded in the petition as presently constituted, among other arguments.
The APC urged the tribunal to dismiss the petition with substantial cost as same was devoid of any merit and founded on frivolity.

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