Following their threat to challenge the February 25 presidential election, which saw the Independent National Electoral Commission (INEC) declare Asiwaju Bola Tinubu of the All Progressive Congress (APC) as the winner, the presidential candidate of the Peoples Democratic Party (PDP), Atiku Abubakar and his party the PDP has gone to court.
The petitioners are challenging the declaration on grounds of substantial non-compliance with relevant laws. Atiku in the petition filed by his team of lawyers led by Joe-Kyari Gadzama (SAN), asked the Court to declare him winner or in the alternative order a rerun between him and Tinubu or have the entire election nullified and a fresh one conducted.
Listed as respondents in the petition marked CA/PEPC/05/2023 are INEC, Tinubu and his party, APC.
Atiku and the PDP are contesting the election on four grounds:
“The election of the 2nd respondent (Tinubu) is invalid by reason of noncompliance with the provisions of the Electoral Act, 2022.
“The election of the 2nd respondent is invalid by reason of corrupt practices.
“The 2nd respondent was not duly elected by majority of lawful votes cast at the election.
“The 2nd respondent was, at the time of the election, not qualified to contest the election.”
Atiku and the PDP are praying the court for the following:
“That it may be determined that the 2nd respondent was not duly elected by the majority of lawful votes cast in the election and therefore the declaration and return of the 2nd respondent by the 1st respondent as the winner of the presidential election conducted on February 25, 2023 is unlawful, wrongful, unconstitutional, undue, null and void and of no effect whatsoever.
“That it may be determined that the return of the 2nd respondent by the 1st respondent was wrongful, unlawful, undue, null and void having not satisfied the requirements of the Electoral Act 2022 and the 1999 Constitution of Nigeria (as amended), which mandatorily requires the 2nd respondent to score not less than one quarter (25 per cent) of the lawful votes cast at the election in each of at least two-thirds of all the states in the federation and the Federal Capital Territory, Abuja.
“That it may be determined that the 2nd respondent was, at the time of the election, not qualified to contest the said election. “That it may be determined that the 1st petitioner having scored the majority of lawful votes cast at the Presidential election of Saturday, February 25, 2023 be returned as the winner of the election and be sworn in as the duly elected President of Nigeria.
In the alternative, “an order directing the 1st respondent to conduct a second election (run-off) between the 1st petitioner and the 2nd respondent.”
In further alternative, “that the election to the office of the President of Nigeria held on February 25, 2023 be nullified and a fresh election (re-run) ordered.”
The petitioners held that failure of the 1st respondent to electronically transmit the result meant that the election was not conducted in accordance with the provisions of the Electoral Act 2022, and other extant laws.
They argued that the non-compliance substantially affected the result of the election, in that the 2nd respondent ought not to have been declared or returned as the winner of the election.
“That the election was not conducted in compliance with the provisions of Sections 47(2) & (3), 60(1), (2) & (5), 64(4)(a) & (b), 64(5), (6), (7) & (8), 71 and 73 of the Electoral Act, paragraphs 3.3.0 and 3.4.0 of the 1st respondent’s published Manual for Election Officials 2023 and Paragraphs 19, 35, 38, 40, 41, 42, 43, 47, 48, 50, and 62 of the 1st respondent’s published Regulations and Guidelines for the Conduct of Elections 2022 (“INEC Regulations” or “Regulations” or “Regulations and Guidelines”).
“That several months and weeks leading to the election, the 1st respondent through its Chairman Mahmood Yakubu, had repeatedly assured the general public that the February 2023 general election would be the best election ever, with the guaranteed use of the Bimodal Voter Accreditation System (BVAS) and real-time and direct uploading of the polling unit results to INEC’s electronic collation system and Results Viewing Portal (iRev), which were technological innovations in the electoral system that would ensure the transparency of the elections against all forms of manipulation.
“The 1st respondent’s chairman and its other principal officers including Mr. Festus Okoye, the National Commissioner for Information and Voters Enlightenment, at various times and fora, gave serial undertakings, representations and assurances that the results from the polling units shall be transmitted real time via the BVAS to the electronic collation system and the iRev for public viewing and that such transmission shall be the basis for collation at the various collation levels up to the national collation and return at the election.
“That contrary to the undertakings, representations and assurances made by the 1st respondent, the 1st respondent proceeded on March 1, 2023 to wrongly return the 2nd respondent as the winner of the election when the outcome (herein being challenged) and the results from the polling units, including the total number of accredited voters in the respective polling units were yet to be transmitted to the 1st respondent’s electronic collation system and the 1st respondent’s Result Viewing Portal (IReV) as stipulated by the Electoral Act, 2022 and the INEC guidelines and manuals and expressly guaranteed to the electorate by the 1st respondent.
“That the 1st respondent had received generous funding from the Federal Government of Nigeria, having informed the public that the 2023 election cost the country the sum of N355 billion. The 1st respondent had submitted a budget of N305 billion, out of which a whopping sum of N117 billion was earmarked for the procurement of electronic accreditation and transmission devices, including the BVAS a new voter enrolment and voter accreditation device designed to combine the functions of the Direct Data Capture Machine, the Z-Pad, the Smart Card Reader and the portal, IReV a world-wide web portal designed for real time viewing of election results uploaded from polling units.
“The 1st respondent and its chairman irrevocably committed the 1st respondent to the deployment and use of the BVAS technology in both accreditation and transmission of the accreditation data and election results from the polling units to the electronic collation system and IRev portal. Meanwhile, the 1st respondent had touted the BVAS machine as the election “game changer”.
“That the 1st respondent had prescribed through its various regulations, guidelines and manual, the manner of accreditation, collation and transmission vide its technological device, the BVAS, pursuant to the Electoral Act,” the petitioners claimed.
