The Presidential Election Petition Tribunal sitting in Abuja, has educated the Peoples Democratic Party, PDP, and its candidate, Atiku Abubakar on the issue of court discretion vis a vis their request to be granted access to inspect the central server of the Independent National Electoral Commission (INEC) in respect of the February 23 presidential election.
The tribunal, in a unanimous decision today, June 24 by a five-member panel of Justices, said the request could not be granted since the issue of whether such central server existed or not, is already a subject of controversy in the substantive petition that is challenging President Muhammadu Buhari’s re-election.
The Tribunal said that the fact that all the parties to the petition have joined issues on whether or not the said server was used for the collation and transmission of results of the election, granting the joint application by PDP and Atiku, would amount to delving into the main case.
According to the tribunal, allowing the application would amount to prejudging of “fundamental issues already raised by the parties on the substantive matter.”
The Chairman of the tribunal, Justice Mohammed Garba who delivered the lead ruling, held that the Supreme Court had on plethora of decided cases, warned that issue that formed the crux of a dispute before any court should not be determined at the interlocutory stage.
He held that the law bestowed the tribunal with discretionary powers to grant or refuse the application, saying “the court will be willing to exercise its discretion in favour of the Applicant, where there are reasons to do so.
“Such discretion must be properly exercised, judiciously and judicially. It follows therefore that the exercise of discretion is one of the strongest weapons of the court of law which must not be exercised in vacuum.”
Justice Garba said that whereas the petitioners maintained that results of the election were indeed collated and transmitted to a central server, on the other hand, INEC, said it was not in possession or aware of the existence of such server.
He held that since the other respondents to the petition- President Buhari and the All Progressives Congress, APC- equally challenged the existence of the server and urged the tribunal to uphold the result that was declared by INEC, acceding to the petitioners’ application, would prejudice the entire petition.
According to the Judge, allowing the petitioners to inspect the controversial server would amount to “resolving the disputed issue regarding the central server and electronic transmission of results of the presidential election” at the preliminary stage of the proceedings.
“It will not be expedient that the court should grant prayers contained in the application.”
Justice Garba said it would amount to “resolving the disputed issue regarding the central server and electronic transmission of results of the presidential election”, at the preliminary stage of the proceedings.
“The scenario will be unpalatable and will create the impression that the court has indeed recognised the existence of a central server and that the result was electronically transmitted. “The law is settled that the court should ensure caution while dealing with interlocutory application so as not to make any observation that affects the substantive case.”
The tribunal also declined the petitioners’ request to be granted access to data that were captured by all the Smart Card Reader Machines that were deployed for the presidential Poll.
Immediately after the ruling, the PDP and Atiku, via one of the senior members of his legal team, Chief Chris Uche, SAN, told Journalists: “the nation was looking forward to this ruling and it is one that is very pivotal to this matter. The Electoral Act itself empowers the tribunal to grant access such as this to the petitioners in order to institute and maintain a petition, and that is what we are asking for.
“Somehow, at this stage, the court has ruled. But definitely this is a matter we want to take higher to the Supreme Court to challenge this ruling because we strongly feel that section 151 of the Electoral Act entitles us to have access to these materials.”
On its part, INEC, through its lawyer, Usman Uztaz, SAN, said that its client is satisfied with the ruling.
“These are issues to be tried during the hearing; you cannot try them in piecemeal.”
The electoral body had challenged the request, arguing that contrary to position of the petitioners, it did not electronically transmit results of the presidential election into any central server.
The Commission told the tribunal that it was not empowered by the Electoral Act, 2010, as amended, to embark on electronic transmission of results.
While denouncing what it described as details of “a strange server” that was provided by the petitioners, INEC, maintained that the result it declared in President Buhari’s favour, “was a true reflection of what was collated.”
Also, President Buhari, through his team of lawyers led by Chief Wole Olanipekun, SAN, as well as counsel to the APC, Prince Lateef Fagbemi, SAN, urged the tribunal to reject the application they said was based “on speculation and conjectures”.
President Buhari argued that he was validly re-elected, having secured the majority of lawful votes cast.
