I couldn’t transmit presidential election results using BVAS, PDP subpoenaed witness tells court

CHIGOZIE IKPO, Abuja 

The Presidential Candidate of the Peoples Democratic Party (PDP) in the last election, Atiku Abubakar on Thursday called two subpoenaed witnesses to testify at the Presidential Election Petition Court (PEPC) sitting in Abuja on his petition challenging the outcome of the February 25 presidential election. 

The witness, Egwumah Friday told the court that he served as the Presiding Officer for Polling Unit 017 in Aba North Local Government Area of Abia State in the election.

Led in evidence by Counsel for PDP, Chief Chris Uche (SAN), said he was able to transmit the results for the Senate and House Of Representatives elections through the Bimodal Voter Accreditation System (BVAS) machine, but that of the Presidential Election could not be transmitted. 

He said he succeeded in uploading the result to the BVAS offline because as they were informed, once he gets to where there’s a network it will upload automatically. 

In the same vein, another subpoena witness, Grace Timothy from Dawaki village, Kanke LGA of Plateau State, who also acted as a Presiding Officer during the last election also testified that she had the same issue with uploading the results for the Presidential Election. 

Earlier, the Five-member panel of the tribunal led by Justice Haruna Tsammani reserved a ruling in the motion on the admissibility of testimonies of subpoenaed witnesses in relation to the petition. 

Lead Counsel for PDP, Chief Chris Uche (SAN), called his first subpoenaed witness, Egwumah Friday who is said to have worked as an Adhoc staff for INEC during the last election, to testify in the case. 

Friday told the court to consider his witness statement made on Tuesday, June 6, as his evidence in the suit. 

Counsel to Tinubu and Shetimma, Chief Wole Olanipekun (SAN) opposed the deposition of the witness statement from the subpoenaed witness, citing paragraph 4 of the first schedule of the Electoral Act which states the timeline for the filing of the witness statement, stating that the witness statement was filed at the expiration of 21 days. 

He referred to the case of Araraume against INEC in 2019 where the court held that the witness statements must have been deposed to and filed within the time agreed by law, stating that the witness statement to be tendered must be frontloaded and must be listed and filed along with the petition. 

Olanipekun also cited the case of PDP against Okogbo in 2019 where the court came to the same conclusion where it states that it does not make any distinction whether it is subpoenaed or non-subpoenaed witnesses. 

Furthermore, Olanipekun cited the judgment in suit No: CA/A/EPT/406/2020 delivered on July 17, 2020, between the Advanced Nigeria Democratic Party against INEC and two others, where the court held that it will not render any witness statement not frontloaded, adding that there is no difference between the ordinary witness and the subpoenaed witness.

Counsel to INEC, A. B. Mahmoud (SAN) and Lateef Fagbemi (SAN) representing the All Progressives Congress (APC) aligned themselves with Olanipekun stating that the petitioners should have filed an application to extend the time as deposed under paragraph 45 of the first schedule of the Electoral Act. 

Chief Uche (SAN) urged the court to discountenance and overrule the objections of the respondents as being utterly misconceived and designed to delay proceedings.

He cited Paragraph 54 of the first schedule of the Electoral Act 2022 that makes the rules and procedures of the Federal High Court (FHC) applicable to that of the Petition Tribunal, stating that such rules are applicable to this case. 

Uche cited Order 20 Rule 15 & 16 of the Procedure Rules 2019 of the Federal High Court which states that parties in a petition may subpoena or request for an appearance of any witness and any party with an affidavit must be bound to attend and testify, adding that it applies to the evidence taken by the witness.

He argued that Order 3 (3) of the same Federal High Court rules states that a witness who is to testify will be served first before his witness statement is taken and cannot be done before the subpoena is issued as such person is compelled to appear before the court, not willingly or voluntarily. 

Lastly, Uche said the failure of the Court to grant the testimony of subpoenaed witnesses is a bridge to a fair hearing as long as the other parties have the opportunity to cross-examine such witnesses.

Justice Tsammani, therefore, ordered that the witness can proceed but that, “In view of the nature of this petition we shall reserve ruling until the final judgement.” 

After taking the two witnesses for the day, Justice Tsammani adjourned further hearing till tomorrow, May 9, 2023.