Hope Democratic Party (HDP) has asked the Supreme Court to void the decision of the Presidential Election Petition Court (PEPC), which upheld the victory of the All Progressives Congress (APC) and its candidate in the last presidential election, President Muhammadu Buhari.
The PEPC had in its judgment given on August 22, 2019 dismissed the petition by the HDP and its candidate, Ambrose Owuru, on the grounds that it was without merit and that the petitioners failed to prove their case; a decision they now appealed at the Supreme Court.
In their notice of appeal, HDP and Owuru want the apex court to void the last presidential election held on February 23, 2019 on the grounds that the Independent National Electoral Commission (INEC) acted unlawfully in holding the election after it allegedly postponed illegally the election earlier scheduled for February 16, 2019.
They want the Supreme Court to uphold a referendum election, which they claimed was conducted by Nigerians on February 16, 2019 (in place of the postponed election) and which the HDP and its candidate purportedly won with over 50 million voice votes.
In the 12 grounds notice of appeal, the appellants equally want the Supreme Court to order that Owuru be sworn-in in place of Buhari on the grounds that he (Owuru) was the duly elected president based on the February 16 referendum.
Buhari, INEC and the APC are listed as respondents in the appeal.
It is the appellant’s contention that the PEPC erred in law when it declined statutory jurisdiction to determine their petition on the grounds that a referendum election is not known to law.
They further contended that the referendum election, allegedly held February 16, 2019, was in accordance with the provisions of sections 14, 132 and 133 of the 1999 Constitution.
The appellants argued that the jurisdiction of the PEPC to hear all matters relating to elections, including referendum election, are provided under section 6, 239, 285 of the 1999 constitution and section 2, 26 and 156 paragraph 2 of the first scheduled of the Electoral Act, 2010 as amended.
They claimed that the PEPC gave wrong interpretation to section 285 of the constitution and proceeded on the wrong assumption of the law that its constitutional duty to determine whether a person has been validly elected as president is restricted only to election conducted by the electoral body.
The appellants also faulted the PEPC on the grounds that its decision was not based on proper evaluation and legal assessment and reflection of their purport and went out to re-invent the respondents’ abandoned pleadings and failure to disprove their case as presented and made out.
They added: “The PEPC failed to see that petitioners, having tendered relevant and unchallenged evidence have discharged the burden of proof on them, even when not strictly required in the face of respondents’ abandonment of their pleadings, requiring no further proof as an admitted case.”
They further alleged that the PEPC failed to properly define or follow the already defined meaning of the word “post-election” and arrived at wrong assumption and conclusion under the law to dismiss their petition.
The PEPC, in its judgment on August 22, 2019 dismissed the petition by HDP and Owuru on the grounds that it was devoid of any scintilla of merit.
A five-man panel of the court held, in a unanimous judgment, that while the first leg of the petition was outside its (the court’s) jurisdiction, the petitioners failed to prove the second leg.
In the first part, the petitioners had sought to be declared winners of the last presidential election on the grounds that they won a referendum purportedly conducted on February 16, 2019 (the date earlier scheduled for the presidential election, before it was later held on February 23, 2019).
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In the second part, the petitioners claimed that the Independent National Electoral Commission (INEC) unlawfully excluded them from the election, their candidate having been validly nominated for the election.
The court held that it lacked the jurisdiction to hear the aspect of the petition relating to referendum.
It held that Section 239(1) of the Constitution only allows it to exercise original jurisdiction in presidential election dispute and to determine whether or not a person was validly elected, but not to determine the outcome of a referendum, as the petitioners seek.
PEPC’s Presiding Judge, Justice Mohammed Garba noted in the lead judgment that the only mode known to the Constitution for electing anybody to the office of the president is election and nothing more.
“Section 156 of the Electoral Act defines election to mean any election held under this Act, and includes a referendum. The referendum referred to in Section 156 of this Act, is one which only INEC has the power to conduct, and it is set out in Section 2(c) of the Electoral Act as any referendum required to be conducted pursuant to the provisions of the Constitution,” he said.
Justice Garba noted that the only part of Constitution where referendum was provided for are in sections 69 and 110 which deals with the process of replacing a recalled Legislator and not for the elction of a person into the office of the president.
He added that the Constitution also makes provision for how the outcome of elections should be contested, but that no provision exists in the constitution that allows a petition to challenge the outcome of a presidential election by alluding to a purported referendum.
On the petitioners’ argument that INEC lacked the power to postpone election, Justice Garba said Section 26(1) of the Electoral Act allows INEC to postpone election and fix election dates, provided the reasons are cogent and verifiable.
The judge said the aspect of the petition, which queried INEC’s powers to postpone election related to pre-election and as such, it is statute barred, the petition having been filed outside 14 days allowed by the Constitution.
“Since INEC is empowered to postpone election and choose election date, the power to decide matters of postponement is outside the jurisdiction of this court,” the judge said.
While further holding that his court lacked jurisdiction, Justice Garba noted that since the act of postponement occurred before the election, which was held on February 23, 2019 it is a pre-election matter that should be decided at the High Court within 14 days.
*Being a pre-election matter, which is not within the jurisdiction of this court, and having not been filed within the stipulated 14 days, the jurisdiction of this court cannot be invoked to determine this case,” he said.
On the issue of alleged exclusion, Justice Garba noted that in some of the exhibits tendered by the petitioners, it was obvious that the petitioners were not truthful about their claim to have been excluded from the election.
He noted that from the final list of candidates made by INEC, which the petitioners tendered, the 1st petitioner (Owuru) name appeared as number 69, while its logo was conspicuously printed on the ballot papers.
Justice Garba then held that the petitioners did not prove allegation of valid nomination and unlawful exclusion from the election, because 1st petitioner was on the INEC final list for the election, while the logo of the party was included in the ballot paper.
He proceeded to dismiss the petition, but declined to award cost against the petitioners as prayed by the respondents – Buhari, INEC and the APC.
