The Supreme Court, Tuesday, dismissed the appeal filed by the Peoples Democratic Party (PDP) and its candidate Atiku Abubakar i n the last presidential election, which prayed the court to set aside the tribunal’s ruling of July 3, 2019.
The Presidential Election Petition Court (PEPC), had earlier dismissed Atiku’s application on the ground that he does not have a reply to an application filed on May 14, 2019, by the All Progressives Congress (APC), seeking among others, the dismissal of their (Atiku and the PDP) challenging President Muhammadu Buhari’s victory at the last presidential election.
In dismissing the appeal, marked SC/738/2019, on Tuesday, the five-man panel led by Justice Datijo Mohammed, said the appeal was statute barred.
The appellants had prayed the apex court to review the proceeding of the tribunal that pertained to an application the APC filed to strike out certain paragraphs of their petition, as well as their list of witnesses and evidence.
But the legal team of Atiku and PDP said the proceedings that day was a miscarriage of justice and needed to be expunged.
The Justice Mohammed Garba-led five-member Presidential Election Petition Tribunal, however, refused to set aside the proceedings.
It will be recalled that the tribunal had on June 11, struck out some paragraphs of the petition the APC filed, after it was withdrawn by its lawyer.
However, shortly after the motion was struck out, APC counsel drew the attention of the tribunal to a similar application the party also filed on May 15.
He urged the tribunal to grant the application to withdraw it, contending that the petitioners failed to file any counter-affidavit to oppose it. The tribunal accordingly struck out the paragraphs in contention.
Reacting immediately after the ruling, counsel to the petitioners, Levy Uzoukwu (SAN), said he had actually filed a counter-affidavit in opposition to the first motion that was orally withdrawn by the APC.
Uzoukwu argued that since the APC filed two similar motions on the same subject matter, he rather filed a preliminary objection for the tribunal to dismiss them for constituting an abuse of court process, instead of filing a second counter-affidavit.
In an application they brought after the tribunal reserved ruling on APC’s second motion, the petitioners challenged the entire proceeding, insisting that it was wrong to allow the 3rd Respondent to withdraw a motion it filed in abuse of the judicial process.
Atiku Abubakar and the PDP contended that the tribunal ought to have heard their preliminary objection and dismiss the two motions by the APC.
Alleging that they would be denied fair hearing, Atiku and the PDP prayed the tribunal to allow them to react to APC’s second motion that they did not file counter-affidavit to.
PDP and Atiku also prayed the tribunal for an order extending the time within which they could file a counter affidavit to APC’s motion.
All the respondents however challenged the application which they maintained was incompetent.
In a unanimous decision, the tribunal agreed with the respondents and dismissed the Atiku and PDP’s application as lacking in merit, stressing that the petitioners made a choice not to file counter-affidavit to oppose APC’s motion that was duly served on them on May 16.
The tribunal noted that the time within which the petitioners could file their counter-affidavit had elapsed.
“The choice was neither a mistake, error or inadvatency of counsel. In law, a choice or election freely made by a party cannot be recalled,” Justice Garba held.
He held that the petitioners neither adduced a cogent or verifiable evidence, nor placed material facts that would warrant the tribunal to exercise its discretion in their favour.
The tribunal said the petitioners failed to meet any of the statutory requirement that would warrant it to review its proceedings.
“This motion is lacking in merit, it is refused and is hereby dismissed”, the tribunal held.
The Supreme Court on Tuesday upheld the ruling. In dismissing the Atiku’s appeal, the apex court described the appeal as unmeritorious.
