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Text of the presidential election tribunal ruling held in Abuja on Tuesday, 26 February, 2008
IN THE COURT OF APPEAL HOLDEN AT ABUJA JUDICIAL DIVISION ON TUESDAY, 26TH OF FEBRUARY 2008 BEFORE THEIR LORDSHIPS: JAMES OGENYI OGBE JUSTICE, COURT OF APPEAL BETWEEN GENERAL MUHAJMMADU BUHARI - PETITIONER BETWEEN: AND CONSOLIDATED PETITIONS JUDGMENT
At the end of the election, the 5th Respondent, Umaru Musa Yar’ Adua of the PDP was returned elected by the 2nd Respondent who was the Chief Electoral Officer and Returning Officer of the said election, having scored a total number of twenty-four million, seven hundred and eighty four thousand and two hundred and twenty-seven (24,784,227) votes, as against six million, six hundred and seven thousand, four hundred (6,607,400) votes scored by the Petitioner. The 6th Respondent, Dr. Jonathan Goodluck was the running mate of the 5th Respondent. Chief Edwin Ume-Ezoke was the running male of the Petitioner, but later in the proceedings applied to withdraw from the petition on the ground of lack of interest and the Court obliged him his request, and his name was accordingly struck out from the petition. The Petitioner is not satisfied with the return and declaration of the 5th Respondent as the winner of the said election, and thus presented a 27 paragraph petition, dated and filed on the 22nd day of May, 2007. The Petitioner prayed the Court to nullify the election on the following grounds as contained in paragraph 8 of the petition:- (a) The 5th Respondent Umaru Musa Yar’Adua was at the time of the election not qualified to contest the decision. (b) The election was invalid by reason of Non-compliance with the provisions of the Electoral Act 2006. (c) The election was invalid by reason of corrupt practices.” The prayers of the Petitioner in paragraph 25 of the petition are that it be determined as follows:- The Petitioner further prayed the Court to grant the reliefs pleaded in paragraph 27 of the petition as follows:- i) That the 5th Respondent was not qualified to contest the Presidential election of 21st April, 2007, consequent upon which his election together with the 6th Respondent as President and Vice-President respectively is void, if) That the election to the office of President of the Federal Republic of Nigeria conducted on the 21st April, 2007 is invalid and therefore cancelled. iii) That the 3rd Respondent is guilty of gross misconduct for, without any just or probable cause, involving the military in a purely civil matter, the conduct of election, contrary to the powers conferred on his office by Section 217 of the Constitution of the Federal Republic of Nigeria. iv) That the lst Respondent conducts another election for the Office of the President of the Federal Republic of Nigeria between the remaining 22 (twenty-two) candidates within three (3) months. In compliance with the paragraph l(i)(a) of the Election Tribunal and Court Practice Directions 2007 (henceforth referred to as the Practice Directions, 2007), issued by the President of the Court of Appeal, the Hon. Justice Umaru Abdullahi, CON, in the exercise of his powers conferred by Section 285(3) of the Constitution of the Federal Republic of Nigeria ] 999, paragraph 50 of the 1st Schedule to the Electoral Act 2006, for the expeditious hearing of election petitions, the Petitioner filed his petition with the list of his witnesses. Witnesses depositions on oath and the list of exhibits to be tendered in the trial. The 1st and 2nd Respondents also in compliance with paragraph 2 of the Practice Directions 2007, filed their reply to the petition dated 23 August, 2007 alone; with the list of their witnesses, and depositions of witnesses on oath and list of exhibits; so also the 4th Respondent. The 5th and 6th Respondents filed a joint reply dated 14th August, 2007 and front loaded their witnesses statement on oath. A pre-trial conference was conducted as required by the Practice Directions 2007. During the pre-trial conference, the 2nd Petitioner, Chief Edwin Ume-Ezoke, applied to have his name struck out from the petition as he was no more interested to pursue his petition. He was obliged his request: The 3rd Respondent in the petition, Chief Olusegun Obasanjo had his name struck out from the petition upon objection by his counsel for misjoinder in the petition. Trial in the petition commenced on the 23rd October 2007 with the testimony of PW 1, Mr. Emmanuel Iwuamadi, who was the only witness who physically appeared before the Court, adopted his written deposition and was cross-examined by counsel to the Respondents. Thereafter, it was agreed, by counsel that written depositions of all witnesses be taken as adopted without the need for cross-examination or physical appearance of the witnesses before the Court. In line with the agreement of counsel, all documents pleaded in the petition , and the respective replies of the Respondents were tendered from the Bar, admitted in evidence, and taken as read without prejudice to objections on admissibility respective opposing counsel could raise in their final addresses. This agreement was reduced into writing by the Court and. the recorded version, accepted by all the parties. The gravamen of the Petitioners’ complaint are as adumbrated in paragraphs 9B, 9B(i)(a), 9B(i)(b), 9B(i)(c), 9B(ii)(a), 9B(ii)(b), 9B(iii)(a), 9A(iii)(b),9B(iii)(c), 9B(iii)(d), 9B(iii)(e), 9B(iii)(i), 9B(iv),(a)(b)(c)(d) and (e), 9B(v) and 9B(vi), all touching on non-compliance with the provisions of the Electoral Act 2006, more particularly Sections 20, 21, 45(2), 48, 49(i), 63:.64 and 75 of the Electoral Act, 2006. In paragraphs 9C(i), 9C(ii), 9C(iii), 9C(iv), 9C(v)5 9C(vi), 9C(vii)5 9C(viii). and 9C(ix) of the petition, the Petitioner complains of acts of corrupt practices and abuse of executive power on the part of the 3rd and 4th Respondents. In paragraph 9C(x)(a)(b)(c)(d) and (e), the Petitioner complains Of manifest bias on the part of the 1st and 2nd Respondents in favour of the and 6th Respondent. With respect to acts of non-compliance and corrupt practices in flagrant breach of the provisions of the principles of the Electoral Act which he said applied to all States of the Federation, the Petitioner mentioned particularly the following States; (1) /Java Ibom, (2) Cross River, (3) Gombe, (4) Abia, (5) Jigawa, (6) Ebonyi, (7) Imo, (8) Anambra, (9) Osun, (10) Katsina and (II) Benue. To establish the petition, the Petitioner adopted and relied on the written depositions of his 19 witnesses. He also tendered before the Court thousands of INEC documents In evidence. The documents tendered were carefully marked in the record of this Court. The lst and 2nd Respondents in their reply to the petition vehemently opposed the petition and relied on the written depositions of their 156 witnesses and. a few exhibits tendered by them in evidence. The 4th Respondent also denied the allegations contained in. the petition in its reply to the petition. In their joint reply, the 5th & 6th Respondents seriously opposed the petition and relied on the depositions of their 65 witnesses and a few exhibits, which were carefully marked in the record of the Court. In his address before the Court, the learned senior counsel for the Petitioner, Chief M. I. Ahamba, SAN formulated the following issues for determination of the petition:- The 1st and 2nd Respondents in their joint address prepared by their lead counsel, Kanu Agabi, SAN the following issues for determination were formulated:- 9B(iii)(h), 9B(iv)(a)(b)(c)(d) and (e), 9B(v), 9B(vi), 12(B)e, 16(b)(i), 16(b)(iv), 16(b)(v), 16(b)(vi) and 16(c), which offends the rules of pleadings by pleading — inferences of Law without pleading the facts from which such inferences are to be drawn ought not to be struck out? 5) Whether the alleged corrupt practices or non-compliance with the provisions of the Electoral Act 2006 have been proven and if so whether they are substantial enough to affect the outcome of the election. 6) Whether the Presidential Election was conducted substantial in accordance with the principles and provisions of the Electoral Act 2006, and whether the alleged breaches affected the outcome of the election. The 4th Respondent, through his counsel, A. O. Mbamali (Mrs) formulated a lone issue that touches on the 4th Respondent, the Inspector General of Police, for determination, namely :- “Whether from the totality of evidence before this Honourable Court, the 4th Defendant can be said to have conducted himself in any manner contrary to his constitutional powers and duties in the course of his participation in the 21st April, 2007 Presidential Election.” The 5th and 6th Respondents through their lead counsel, Chief Wole Olanipekun, SAN, formulated the following issues for determination: I) Whether or not this Honourable Tribunal can countenance the Petitioners’ witnesses statements deposed to before Val I. Ikeonu, Esq., a Notary Public who is one of the Petitioner’s counsel, and which said witness statements were purportedly deposed to on 17th May, 2007, while the petition itself was filed on the 22nd May, 2007. ii) Considering the fact that Chief Edwin Ume-Ezeoke the 2nd petitioner who was the running mate of the petitioner at the election has withdrawn from this petition, and expressed his disinterestedness in it on oath, coupled with the fact that the ANPP that-sponsored the Petitioner withdrew its own petition, stating on oath that it is no longer interested in challenging the return of the 5th Respondent, whether or not the entire petition has not become academic, cognizance being taken of the reliefs sought by the Petitioner. iii) Whether the 5th Respondent was qualified to contest the election at the time of the election. iv) Whether the Petitioner has proved the various acts of non-compliance, malpractices and corruption pleaded in his petition. v) Even if the answer to (iv) supra is in the affirmative, can the election of the Respondents be invalidated for such reasons bearing in mind (he clear provisions of Section 146 of the Electoral Act, 2006. vi) Are the Petitioners reliefs in paragraph 27 of the petition grantable within (he context and provisions of the Electoral Act, 2006.” At the hearing of the petition on the 5lh February, 2008, learned Counsel for the respective parties adopted and relied on their written addresses already filed before the Court. Learned counsel for the 1st and 2nd Respondents, Kanu Agabi, SAN, adopted and relied on written address filed by them dated 27/12/2007, and filed on the same day, their reply address dated and filed on the 28/1/2008 on behalf of the 1st and 2nd Respondents. Substantiating further, he submitted that the petition is unsupported by evidence. It is also his view that of the 36 States and Federal Capital Territory, the petitioners only filed depositions in respect of five States, namely, Katsina, Abia, Imo, Plateau and Rivers States. He submitted that 12 of these depositions are in respect of Imo State, one each for Katsina, Plateau and Rivers States. There is no evidence in respect of Abia State and the other 31 States and the FCT. He urged the Court to dismiss the petition on that basis. Learned counsel further submitted that the depositions in respect of the States that are challenged do not raise any issue of substance and not only that, the depositions are inadmissible because they are sworn before a counsel to the petitioner. Learned counsel also submitted that, if the Court upheld the submission of learned counsel for the petitioner that the Practice Directions is unconstitutional, that means the Petition must be dismissed because it violated due process. He submitted also that the Petitioner cannot rely on Section 85 of the Evidence Act, as there is no such application before the Court to accept the defective depositions or to re-swear the incompetent depositions. Learned counsel further submitted that the Petitioner challenged election of 11 States in the petition, Akwa Ibom, Cross River, Gombe, Abia, Jigawa; Ebonyi. Imo, Anambra, Osun, Katsina and Benue States. It is submitted that the other States are not condemned and even if the 11 States are condemned, the Court will still uphold the election. He submitted that the general averment made in paragraph 22 of the Petition condemning other States in general is a vague averment and the 1st and 2nd Respondents denied same. On the issue of irregularities, learned counsel submitted that apart from the fact that same have not been proved, same have not been attributed to the 5th and 6th Respondents, and it had not been shown how it affected the outcome of the election referring to Section 146 of the Electoral Act where the law provides for substantial compliance and not a perfect compliance. Learned counsel also submitted that the Petitioner tendered more than 30,000 documents that show that the election was comprehensively documented and he urged the Court to disregard the almost 600-page address as it is an attempt to use counsel’s address as evidence and to also discountenance all-the fresh facts in the address as they are not pleaded. It is also the view of learned counsel that if the ballot papers are valid in State A or E, then it is also valid for State C and D. He urged the Court to dismiss the petition. The 5th and 6th Respondents through their lead counsel, Chief Wole Olanipekun SAN, adopted and relied on their written address dated 24/12/2007 and filed on the 27/12/2007, and the reply address dated 25/01/2008, and tiled on the same day. Learned counsel submitted that the Petitioner challenged only the elections in 4 States by witness depositions, as almost all the witnesses are from Imo State challenging elections in other States of the Federation, and that there is no single agent of the Petitioners that witnessed all the corrupt practices and irregularities complained in the petition. He referred to the case of HASHIDU vs. GOJE (2003) 15 NWLR (Pt. 843) 532, and submitted that an election of this nature cannot be voided on hearsay evidence. Learned counsel further submitted that all the allegations in the Petition border on commission of crime which the learned counsel for the Petitioner agreed, and submitted that the doctrine of severance of pleadings cannot apply since all the allegations hinge on commission of crime which requires proof beyond reasonable doubt and the learned counsel had not severed them. Learned counsel referred to the issue of disqualification of the 5th Respondent and referred to the case of ACTION CONGRESS vs. INEC (2007) 12 NWLR (Pt. 1048) 222 where the Supreme Court considered the issue, and the case of AMAECHI vs. INEC, and submitted that the issue of indictment is not a matter of course. He also submitted that Exhibit EP2/34 which is supposed to be a public document, is not certified as required under Section 111 of the Evidence Act. Learned, counsel urged the Court to take judicial notice under Section 74 of the Evidence Act that the 5th and 6th Respondents were Governors of their respective States in Katsina and Bayelsa. It is submitted that the Petitioner has totally abandoned his pleadings and went on a voyage, and the Court was urged to dismiss the petition. P. Ohabor Esq. for the 4th Respondent adopted and relied, on the 4th Respondent’s address dated 11/01/2008, and filed on the same day. Learned counsel referred to the duties of the Police as contained under Section 4 of the Police Act and submitted that the Police are only doing their duty on the election day. That the allegations against the Police have not been proven in any way, and the 4th Respondent cannot be held vicariously liable for the act of the Police Officers. The learned counsel for the Petitioner, M. I. Ahamba, SAN adopted and relied on the Petitioner’s written address dated 17/01/2008, and filed on 18/01/2008. Learned counsel submitted that they did not attack the elections in only 11 States. He referred to paragraph 7 of the petition at page 3, paragraph 3 9B(iv) at page 10 and paragraph 22 at page 41, and submitted that the States mentioned are just examples. On the Practice Directions, learned counsel submitted that they did not the Practice Directions, but only urged the Court to observe its limitations. Learned counsel also submitted that the main issue in the Petition is whether the results declared on 23/04/2007 were arbitrarily assigned to the parties or candidates or arose from election conducted in accordance with the. principles of the Electoral Act. He urged the Court to look at all the certified INEC documents tendered in evidence and apply the doctrine of severance of pleadings, and to discountenance all criminal allegations in the petition, that is, the issue of violence, malpractices, ballot box snatching and. stuffing of same, as abandoned, save the claim dealing with non-compliance with the provisions of the Electoral Act including arbitrary allocation of votes at all levels. Learned counsel relied on the case of CHUKWUMA vs. ANYAKORO (2006) ALL FWLR (Ft. 302) 121 at 141. Learned counsel further submitted that it is non-compliance where final results manifest inconsistency with 28 States of the Federation and inconsistencies with Forms ECSAs with each State having two result sheets and where some voters’ registers are inconsistent with the Electoral Act, and where results were dated 31/04/2007 which does not exist in the calendar. On the Abia State Government White Paper, learned counsel submitted that this Court has no jurisdiction to enquire into it. He also submitted that under section 113(a) of the Evidence Act, a Government White Paper does not mean certification. Learned counsel urged the Court to nullify the election. Before going into the issues for determination, let us comment on the preliminary issue that reared its head from the address of the Petitioner’s counsel. Chief M. I. Ahamba, SAN, at the onset of his submission questioned the source of authority of the President of the Court of Appeal to issue Practice Directions 2007. That in view of the Respondents’ heavy reliance on the Practice Directions, the determination of the validity of the Practice Directions becomes relevant. It is the view of the learned senior counsel that the Practice Directions 2007, as it relates to election petitions proceedings in the Tribunals and the Court of Appeal in its first instance jurisdiction in election petition proceedings is invalid, the same being ultra vires, the powers of the President of the Court of Appeal to make Practice Directions. It is also his view that the authority of the President of the Court of Appeal to make rules regulating the Practice and Procedure of the Court of Appeal is as contained in Section 248 of the Constitution of the Federal Republic of Nigeria 1999 limits the powers of the President of the Court of Appeal to make the Practice Directions. He referred to ORDER 7, RULE 7, of the COURT OF APPEAL RULES 2002. It is further submitted by the learned senior counsel that apart from Section 248 of the Constitution and Order 7, Rule 7 of the Court of Appeal Rules, there is no other provision under the Constitution or the Electoral Act and its Schedules empowering the President of. the Court of Appeal to make Practice Directions or Rules relating to procedure under the First Schedule to the Act which are Rules for the prosecution and defence of an election petition, and the Federal High Court Civil Procedure Rules pursuant to paragraph 50 of the First Schedule to the Electoral Act. Counsel further submitted that there is no provision under Section 285(3) of the Constitution empowering the President: of the Court of Appeal to issue Practice Directions or any Rules for the trial of election petitions at first support of this submission, learned counsel referred to the following cases; HARUNA vs. MOD1BBO (2004) 14 NWLR (Pt 900) 487 AT UNIVERSITY OF LAGOS vs. AIGORO (1984) NSCC VOL. 15, 745 at FALOBI vs: FALOBI (1976) 9-10 SC at 13. Learned counsel urged not to give any legal efficacy to the provisions of the Practice, ions 2007, save the Practice Directions Amendment which contains actions on appeal from the Tribunal to the Court of Appeal. The above not-withstanding, learned counsel has submitted that this Court lacks the competence to set aside the Practice Directions under Section 239 of the Constitution. In their response to this submission, the 1st and 2nd Respondents through their counsel, Kanu Agabi, SAN, submitted that the contention of the Petitioner is akin to making a mountain out of a molehill, or at best, beating about the bush. It is his view that the powers of the President of the Court of Appeal to make Practice Directions are statutorily embedded in the Court of Appeal Rules and are constitutionally implied and permissible. It is also the view of the learned senior counsel that the effect of the Practice Directions when subjected to community reading with other Statutes and the Rules of the Court does not go to the validity of the Practice Directions as same cannot by virtue of the existence of other statutory provisions or enactments be said to be invalid, null and void. It is also his view that the Courts have readily achieved a balance by applying the provisions of the Practice Directions not by invalidating the Practice Directions, but by construing same as part of the Rules of Court, citing for support also the cases of HARUNA vs. MOD1BBO (supra); UNIVERSITY OF LAGOS vs. AIGORO (supra) and FALOBI vs. FALOBI (supra); all cited by the learned senior counsel for the Petitioner. K, Agabi. SAN, urged the Court to disregard the contention of the Petitioner that the Practice Directions is invalid, null and void and to proceed to apply same as an integral part of the Rules of this Court. The 4th Respondent, the Inspector General of Police, did not respond challenge on the constitutionality or validity of the Court’s Practice directions. The 5th and 6th Respondents, now 4th and 5th Respondents in response through their counsel, Chief Wole Olanipekun, SAN are of the view that Section 285 of the 1999 Constitution read together with Section 248 empowers the President of the Court .of Appeal to make Rules and Regulations for the Practice and Procedure to be followed in Election Petition cases. On the sanctity and force of the Rules of Court, learned counsel referred to the following cases; CHUKWUOGOR vs. CHUKWUOGOR (2007) ALL FWLR (Pt. 349) 1154 at 1167; HARUNA vs. MODIBBO (2004) 16 NWLR (PT.900) 487 at 591; and AWURU vs. AWUSE (2004) ALL FWLR. (Pt. 211) 1429 at 1439-40. Learned senior counsel urged the Court to disregard the submission of the learned counsel for the Petitioner and hold that the Court’s Practice Directions 2007 is extant and accordingly applied by the Court. It is indeed strange that it is at the address stage that the Petitioner’s counsel is questioning the validity or constitutionality of the Practice Direction issued by the President of the Court of Appeal in the exercise of his powers conferred by Section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999. The Petitioner has since the inception of his petition relied on, applied and made substantial use of the provisions of the Practice Directions without raising any objection. The same duty and obligations that ensures to the Petitioner under the Practice Directions is the same that ensures to the Respondents. One therefore wonders that it is at this stage that the Petitioner, after taking full advantage of all the provisions of the Practice Directions, that is now crying foul that the Practice Directions has no constitutional backing. If this submission by the petitioner is sustained, then it goes without saying that the petition foundation or platform on which it can be based. UAC. vs. MACFOY (1952) AC 61. The combined reading .of Sections 248 and 285(3) of the Constitution tiers the President of the Court of Appeal to make Rules and Regulations the Practice and Procedure to be followed by the Court of Appeal, not only in its Appellate jurisdiction, while hearing appeals, but also in the exercise of its original jurisdiction under Section 239 of the Constitution. The Practice Directions stand as a guide to the proceedings before the Court just as the Rules of the Court. This Court, in the case of HARUNA vs. MODIBBO (2004) 16 NWLR (PT. 900) 487 at 591 settled the point relating to the powers of the President of the Court of Appeal to issue the Practice Directions wherein the Court held that:-”the power or the authority of the President of the Court of Appeal to issue Practice Directions is derived from the Constitution of the Federal Republic of Nigeria.” The Practice Directions has a constitutional flavour. It is not ultra vires the powers of the President of the Court of Appeal. The Practice Directions constitute a rule for the guidance and regulation of election petition proceedings as established by the Constitution, and it must be obeyed strictly as they constitute condition precedent to the presentation and maintenance of an election petition. The panel hearing this petition was constituted pursuant to the powers conferred on the President of the Court of Appeal under Section 285 of the 1,999 Constitution. The power of the President of the Court of Appeal to set up the various Election Petitions Tribunals is derived from the 1999 Constitution, and in as much the same way he does make Rules for the conduct of cases or proceedings before the Election Tribunals. See Sections 248 and 285 of the Constitution. The powers of the President of the Court of Appeal under Sections 284 I2S5 of the Constitution is not limited to the Practice and Procedure of the of Appeal in its’ appellate jurisdiction, it does extend to the power to issue ^Practice Directions not only in the appellate jurisdiction of the Court of Appeal, but also in its original jurisdiction under Section 239 of the Constitution. The Petitioners’ counsel submitted that this Court lacks the competence to set aside the Practice Directions. It then follows that the argument is entirely misconceived and same is hereby discountenanced. It is further submitted that the 20 witnesses statements are irrelevant and therefore inadmissible and liable to be struck out, thereby rendering the petition deficient of material facts to support the grounds and petitioners’ prayers. Counsel also further submitted that the lone evidence of Bernard Nimfa Banfa of Langtang town, Langtang Local Government Area of Plateau State, whose deposition was sworn before the Court of Appeal, Abuja does not contain sufficient facts to sustain the grounds and prayers of the petitioners relying on the case of UZODINMA vs UDENWA (2004) 1 NWLR (Pt, 854)303 at 345. Learned counsel urged the Court to expunge the inadmissible witness depositions citing in support the following cases; UBA. PLC vs. SPARKLING BREWERIES LTD. (2000) 15 NWLR (Pt. 689) 200 at 212; KABO AIR vs. INCO LTD. (2003) 6 NWLR (Pt. 516) 323 at 339; A GDI vs. OGBE (2006) 11 NWLR (Pt. 990) 65 AT 119; DAGACI OF DEER.vs. DAGACI OF EBWA (2006) 7 NWLR (Pt.999) 382 at 427; and OLUKADE vs. ALADE (1976)1 ALL NLR 67. In support of his submission, learned counsel referred to the following authorities; AGBI vs. OGBE (supra) at 132-133; OLAREWAJU vs. IGBOYE (1987) 3 NWLR. (Pt. 60) 353; ALHAJI BALA vs. MRS. BANKOLE (1989) 3 NWLR (Pt. 27) 141; and MAGNUSSON vs. KOIK.O1 (3) 9 NWLR (Pt.317) 287. The Court was urged to expunge from the f records, the 20 witnesses statements filed in violation of the law. iii) Whether the 5th Respondent was qualified to contest the election at the time of the election. iv) Whether the Petitioner has proved the various acts of non-compliance, malpractices and corruption pleaded in his petition. v) Even if the answer to (iv) supra is in the affirmative, can the election of the Respondents be invalidated for such reasons bearing in mind the clear provisions of Section 146 of the Electoral Act, 2006. vi) Are the Petitioners reliefs in paragraph 27 of the petition grantable within the context and provisions of the Electoral Act, 2006.” At the hearing of the petition on the 5lh February, 2008, learned Counsel for the respective parties adopted and relied on their written addresses already filed before the Court. Learned counsel for the 1st and 2nd Respondents, Kanu Agabi, SAN, adopted and relied on written address filed by them dated 27/12/2007, and filed on the same day, their reply address dated and filed on the 28/1/2008 on behalf of the 1st and 2nd Respondents. Substantiating further, he submitted that the petition is unsupported by evidence. It is also his view that of the 36 States and Federal Capital Territory, the petitioners only filed depositions in respect of five States, namely, Katsina, Abia, Imo, Plateau and Rivers Slates. He submitted that 12 of these depositions are in respect of Imo State, one each for Katsina, Plateau and Rivers States. There is no evidence in respect of Abia State and the other 31 States and the FCT. He urged the Court to dismiss the petition on that basis. Learned counsel further submitted that the depositions in respect of the States that are challenged do not raise any issue of substance and not only that, the depositions are inadmissible because they are sworn before a counsel to the petitioner. Learned counsel also submitted that, if the Court upheld the submission of learned counsel for the petitioner that the Practice Directions is unconstitutional, that means the Petition must be dismissed because it violated due process. He submitted also that the Petitioner cannot rely on Section 85 of the Evidence Act, as there is no such application before the Court to accept the defective depositions or to re-swear the incompetent depositions. Learned counsel further submitted that the Petitioner challenged : election of 11 States in the petition, Akwa Ibom, Cross River, Gombe, Abia, Jigawa,; Ebonyi, Imo, Anambra, Osun, Katsina and Benue States. It is submitted that the other States are not condemned and even if the 11 States are condemned, the Court will still uphold the election. He submitted that the general averment made in paragraph 22 of the Petition condemning other States in general is a vague averment and the 1st and 2nd Respondents denied same. On the issue of irregularities, learned counsel submitted that apart from the fact that same have not been proved, same have not been attributed to the 5th and 6thRespondents, and it had not been shown how it affected the outcome of the election referring to Section 146 of the Electoral Act where the law provides for substantial compliance and not a perfect compliance. Learned counsel also submitted that the Petitioner tendered more than 30,000 documents that show that the election was comprehensively documented and he urged the Court to disregard the almost 600-page address as it is an attempt to use counsel’s address as evidence and to also discountenance all the fresh facts in the address as they are not pleaded. It is also the view of learned counsel that if the ballot papers are valid in State A or E, then it is also valid for State C and D. He urged the Court to dismiss the petition. The 5th and 6th Respondents through their lead counsel, Chief Wole Olanipekun SAN, adopted and relied on their written address dated 24/12/2007 and filed on the 27/12/2007, and the reply address dated 25/01/2008, and tiled on the same day. Learned, counsel submitted that the Petitioner challenged only the elections in 4 States by witness depositions, as almost all the witnesses are from Imo State challenging elections in other States of the Federation, and that there is no single agent of the Petitioners that witnessed all the corrupt practices and irregularities complained in the petition. He referred to the case of HASHIDU vs. GOJE (2003) 15 NWLR (Pt. 843) 532, and submitted that an election of this nature cannot be voided on hearsay evidence. Learned counsel further submitted that all the allegations in the Petition border on commission of crime which the learned counsel for the Petitioner agreed, and submitted that the doctrine of severance of pleadings cannot apply since all the allegations hinge on commission of crime which requires proof beyond reasonable doubt and the learned counsel had not severed them. Learned counsel referred to the issue of disqualification of the 5th Respondent and referred to the case of ACTION CONGRESS vs. INEC (2007) 12 NWLR (Pt. 1048) 222 where the Supreme Court considered the issue, and the case of AMAECHI vs. INEC, and submitted that the issue of indictment is not a matter of course. He also submitted that Exhibit EP2/34 which is supposed to be a public document, is not certified as required under Section 111 of the Evidence Act. Learned counsel urged the Court to take judicial notice under Section 74 of the Evidence Act that the 5th and 6th Respondents were Governors of their respective States in Katsina and Bayelsa. It is submitted that the Petitioner has totally abandoned his pleadings and went on a voyage, and the Court was urged to dismiss the petition. P. Ohabor Esq. for the 4th Respondent adopted and relied, on the 4th Respondent’s address dated 11/01/2008, and filed on the same day. Learned counsel referred to the duties of the Police as contained under Section 4 of the Police Act and submitted that the Police are only doing their duty on the election day. That the allegations against the Police have not been proven in any way, and the 4th Respondent cannot be held vicariously liable for the act of the Police Officers. The learned counsel for the Petitioner, M. I. Ahamba, SAN adopted and relied on the Petitioner’s written address dated 17/01/2008, and filed on 18/01/2008. Learned counsel submitted that they did not attack the elections in only 11 States. He referred to paragraph 7 of the petition at page 3, paragraph 3 9B(iv) at page 10 and paragraph 22 at page 41, and submitted that the States mentioned are just examples. On the Practice Directions, learned counsel submitted, that they did not the Practice Directions, but only urged the Court to observe its limitations. Learned counsel also submitted that the main issue in the Petition is whether the results declared on 23/04/2007 were arbitrarily assigned to the parties or candidates or arose from election conducted in accordance with the. principles of the Electoral Act. He urged the Court to look at all the certified INEC documents tendered in evidence and apply the doctrine of severance of pleadings, and to discountenance all criminal allegations in the petition, that is, the issue of violence, malpractices, ballot box snatching and stuffing of same, as abandoned, save the claim dealing with non-compliance with the provisions of the Electoral Act including arbitrary allocation of votes at all levels. Learned counsel relied on the case of CHUKWUMA vs. ANYAKORO (2006) ALL FWLR (Ft. 302) 121 at 141. On the depositions of witnesses, learned counsel referred to Section 84 of the Evidence Act, and urged the Court to use the defective affidavit. That the issue of witnesses’ depositions did not arise at the hearing and that the Respondents are now estopped from raising any objection to the depositions of witnesses. Learned counsel further submitted that it is non-compliance where final results manifest inconsistency with 28 States of the Federation and inconsistencies with Forms ECSAs with each State having two result sheets and where some voters’ registers are inconsistent with the Electoral Act, and where results were dated 31/04/2007 which does not exist in the calendar. On the Abia State Government White Paper, learned counsel submitted that this Court has no jurisdiction to enquire into it. He also submitted that under section 113(a) of the Evidence Act, a Government White Paper does not certification. Learned counsel urged the Court to nullify the election. Before going into the issues for determination, let us comment on the preliminary issue that reared its head from the address of the Petitioner’s F counsel. Chief M. I. Ahamba, SAN, at the onset of his submission questioned the source of authority of the President of the Court of Appeal to issue Practice Directions 2007. That in view of the Respondents’ heavy reliance on the Practice Directions, the determination of the validity of the Practice Directions becomes relevant. It is the view of the learned senior counsel that the Practice Directions 2007, as it relates to election petitions proceedings in the Tribunals and the Court of Appeal in its first instance jurisdiction in election petition proceedings is invalid, the same being ultra vires, the powers of the President of the Court of Appeal to make Practice Directions. It is also his view that the authority of the President of the Court of Appeal to make rules regulating the Practice and Procedure of the Court of Appeal is as contained in Section 248 of the Constitution of the Federal Republic of Nigeria 1999 limits the powers of the President of the Court of Appeal to make the Practice Directions. He referred to ORDER 7, RULE 7, of the COURT OF APPEAL RULES 2002. It is further submitted by the learned senior counsel that apart from Section 248 of the Constitution and Order 7, Rule 7 of the Court of Appeal Rules, there is no other provision under the Constitution or the Electoral Act and its Schedules empowering the President of the Court of Appeal to make Practice Directions or Rules relating to procedure under the First Schedule to the Act which are Rules for the prosecution and defence of an election petition, and the Federal High Court Civil Procedure Rules pursuant to paragraph 50 of the First Schedule to the Electoral Act. Counsel further submitted that there is no provision under Section 285(3) of the Constitution empowering the President of the Court of Appeal to issue Practice Directions or any Rules for the trial of election petitions. At first support of this submission, learned counsel referred to the following cases; HARUNA vs. MOD1BBO (2004) 14 NWLR (Pt 900) 487 AT UNIVERSITY OF LAGOS vs. AIGORO (1984) NSCC VOL. 15, 745 at FALOBI vs: FALOBI (1976) 9-10 SC at 13. Learned counsel urged not to give any legal efficacy to the provisions of the Practice, ions 2007, save the Practice Directions Amendment which contains actions on appeal from the Tribunal to the Court of Appeal. The above Emissions not-withstanding, learned counsel has submitted that this Court lacks the competence to set aside the Practice Directions under Section 239 of the Constitution. It is his view that the powers of the President of the Court of Appeal to make Practice Directions are statutorily embedded in the Court of Appeal Rules and are constitutionally implied and permissible. It is also the view of the learned senior counsel that the effect of the Practice Directions when subjected to community reading with other Statutes and the Rules of the Court does not go to the validity of the Practice Directions as same cannot by virtue of the existence of other statutory provisions or enactments be said to be invalid, null and void. It is also his view that the Courts have readily achieved a balance by applying the provisions of the Practice Directions not by invalidating the Practice Directions, but by construing same as part of the Rules of Court, citing iu support also the cases of HARUNA vs. MOD1BBO (supra); UNIVERSITY OF LAGOS vs. AIGORO (supra) and FALOBI vs. FALOBI (supra); all cited by the learned senior counsel for the Petitioner. K, Agabi SAN, urged the Court to disregard the contention of the Petitioner that the Practice Directions is invalid, null and void and to proceed to apply same as an integral part of the Rules of this Court. The 4th Respondent, the Inspector General of Police, did not respond challenge on the constitutionality or validity of the Court’s Practice directions. The 5th and 6th Respondents, now 4th and 5th Respondents in response through their counsel, Chief Wole Olanipekun, SAN are of the view that Section 285 of the 1999 Constitution read together with Section 248 empowers the President of the Court of Appeal to make Rules and Regulations for the Practice and Procedure to be followed in Election Petition cases. On the sanctity and force of the Rules of Court, learned counsel’ referred to the following cases; CHUKWUOGOR vs. CHUKWUOGOR (2007) ALL FWLR (Pt. 349) 1154 at 1167; HARUNA vs. MODIBBO (2004) 16 NWLR (PT.900) 487 at 591; and AWURU vs. AWUSE (2004) ALL FWLR. (Pt. 211) 1429 at 1439-40. Learned senior counsel urged the Court to disregard the submission of the learned counsel for the Petitioner and hold that the Court’s Practice Directions 2007 is extant and accordingly applied by the Court. The Petitioner has since the inception of his petition relied, on, applied and made substantial use of the provisions of the Practice Directions without raising any objection. The same duty and obligations that ensures to the Petitioner under the Practice Directions is the same that ensures to the Respondents. One therefore wonders that it is at this stage that the Petitioner, after taking full advantage of all the provisions of the Practice Directions, that is now crying fowl that the Practice Directions has no constitutional backing. If this submission by the petitioner is sustained, then it goes without saying that the petition foundation or platform on which it can be based. UAC. vs. MACFOY (1952) AC 61. The Practice Directions constitute a rule for the guidance and regulation of election petition proceedings as established by the Constitution, and it must be obeyed strictly as they constitute condition precedent to the presentation and maintenance of an election petition. The panel hearing this petition was constituted pursuant to the powers conferred on the President of the Court of Appeal under Section 285 of the 1,999 Constitution. The power of the President of the Court of Appeal to set up the various Election Petitions Tribunals is derived from the 1999 Constitution, and in as much the same way he does make Rules for the conduct of cases or proceedings before the Election Tribunals. See Sections 248 and 285 of the Constitution. It is further submitted that the 20 witnesses statements are irrelevant and therefore inadmissible and liable to be struck out, thereby rendering the petition deficient of material facts to support the grounds and petitioners’ prayers. Counsel also further submitted that the lone evidence of Bernard Nimfa Banfa of Langtang town, Langtang Local Government Area of Plateau State, whose deposition was sworn before the Court of Appeal, Abuja does not contain sufficient facts to sustain the grounds and prayers of the petitioners relying on the case of UZODINMA vs UDENWA (2004) 1 NWLR (Pt, 854)303 at 345. Learned counsel urged the Court to expunge the inadmissible witness depositions citing in support the following cases; UBA. PLC vs. SPARKLING BREWERIES LTD. (2000) 15 NWLR (Pt. 689) 200 at 212; KABO AIR vs. INCO LTD. (2003) 6 NWLR (Pt. 516) 323 at 339; A GDI vs. OGBE (2006) 11 NWLR (Pt. 990) 65 AT 119; DAGACI OF DEER.vs. DAGACI OF EBWA (2006) 7 NWLR (Pt.999) 382 at 427; and OLUKADE vs. ALADE (1976)1 ALL NLR 67. In support of his submission, learned counsel referred to the following authorities; AGBI vs. OGBE (supra) at 132-133; OLAREWAJU vs. IGBOYE (1987) 3 NWLR. (Pt. 60) 353; ALHAJI BALA vs. MRS. BANKOLE (1989) 3 NWLR (Pt. 27) 141; and MAGNUSSON vs. KOIK.O1 (3) 9 NWLR (Pt.317) 287. The Court was urged to expunge from the f records, the 20 witnesses statements filed in violation of the law. To be continued..... ---- some materials missing here
FAILURE to comply with the scheduled date and time for the election contrary to Sections 48, 49(1) and 63 of the Act and the provisions of the manual - See paragraph 9B(iii)(a)-(i) of the petition. Failure to comply, with the procedure for voting and collation provided in Sections 64(1)-(4) and 75 of the Act, and the manual for Electoral officials - See paragraph 9B(iv)(a)-(e), and the failure to administer the oath of neutrality contrary to Sections 29 (1) and (2) of the Act as contained in paragraph 9B(iv) of the petition. Learned counsel thereafter submitted that the nine sections which the 1st and 2nd Respondents failed to comply with were fundamental provisions designed by the l3v makers to safeguard the principles of the Electoral Act in the conduct of the election. Learned counsel referred to the following cases; SWEM vs. AZUNGWE (1966) NMLR 297 at 303; EZIKE vs. EZEUGWU (1992) 4 NWLR (Pt.236) 462 at 473; and BUBARI vs. OBASANJO (2005) 2 NVLR (Pt. 910) 241 at 370. Learned counsel referred to Section 146(1) of the Electoral Act. The Section has two expressions that are dominant. These are:- (1) That the election was conducted substantially in accordance with the principles of this Act; and (2) that the non-compliance did not affect substantially the result of the election. He submitted that under Section 146(1) of the Act, there is no provision requiring the Tribunal or Court to consider whether a non-compliance with the provisions of the Electoral Act was substantial or not before such noncompliance could invalidate the election. It is his view that what should be considered is whether the conduct of the election was in accord with the principles of the Electoral Act, and whether non-compliance did not substantially affect the result of the election. On what amounts to the principles of the Electoral Act, learned counsel referred to the following authorities of; IMERE vs. SALAMI (1989) 2 NEPLR 131 at 159; NA’BATURE vs. MAHUTA (1992) 9 NWLR (Pt. 263) 85 AT 104. On the expression that, “and that the non-compliance did not affect substantially the result of the election”, learned counsel referred to the case of EZIKE vs. EZEUGWU (1992) 4 NWLR (Pt. 236) 462 at 473. Learned counsel also referred to the HALSBURY’S LAWS OF ENGLAND, page 355, Vol. 15 in Paragraph 158; and the case of MORGAN vs. SIMPSON (1975) QB 15l. Arguing this issue, learned counsel submitted that the 15 and 2nd Respondents directly traversed the averments in paragraphs 10 and 11 of their joint reply and asselied that everything alleged in the petition not to have been done was actually done and in accordance with the law. He submitted that the traverse by the 15t and 2nd Respondents in their reply did not include any specific traverse of the specific allegations of fact and that the 2nd Respondent publicly stated that Local Government Council election could not be held after the general elections for the reason of non-existence of a valid voters register. Learned counsel then went on to produce a chart, Chart No.1 captioned, “Irregular Voters Register”, with names, states and comments made by the learned counsel at pages 25-29 of his address. The States therein are five, namely, Nasarawa, Kwara, Rivers, Imo and Taraba, and submitted that the chart tilt the balance of the imaginary scale of justice decidedly in favour of the Petitioner as all the Exhibits referred in the chart are certified by the 1st Respondent. He further submitted that conducting the election with an invalid voters register is an illegality that would vitiate the election without recourse to whether the result was affected as there would be no valid result to be considered. He cited the cases of INEC vs RAY (2004) 14 NWLR (Pt. 892) 92 at 123; NWOKORO vs. ONUMA (1990) 3 NWLR (Pt. 136) 22 at 32. Counsel submitted that the election was without voters registers and was invalid as the voters register is the foundation upon which an election rest, and the Com1 was urged on that ground to nullify the election. On non-compliance with Section 45(2) of the Electoral Act, i.e. that the election was conducted with ballot papers which had no serial numbers and which were not printed in booklets, learned counsel submitted that the use of the word “shall” in the Section is mandatory, which connotes that the election must be conducted with ballot papers with the serial numbers and produced in booklets. On the interpretation of the word “shall”, he relied on the following cases; ACHINEGBU vs. ISHAGBA (1988) 4 NWLR (Pt. 89) 411 at 420; KATO vs. CBN (1991) 9 NWLR (Pt. 214) 126 at 147. He submitted that the provision of Section 45(2) of the Act was designed to provide the materials for audit trail of the ballot papers. In this submission, learned counsel also referred to Section 161 of the Act and Section 74. In order to provide for transparency and to provide the necessary audit trail for the movement and use of the ballot papers on election day, learned counsel referred to Exhibit EP 2/A1 at page 10, and submitted that where the forms 25 and 40 series are not filled as provided, no ballot papers were delivered to such polling units. He further submitted that without the serial numbers, there is no way the quantity of ballot paper supplied can be ascertained, and that majority of the States did not put Forms EC 25 and EC 40 into use, because there was no delivery of ballot papers at the polling booths. On non-compliance with the Sections 48, 49(1) and 63 of the Electoral Act, as pleaded in paragraph 9B(iii)(a)-(i) of the petition, learned counsel submitted that the 2nd Respondent has no competence under the Constitution and the Electoral Act or the Manual Exhibit EP 2/A1 to change or adjust the already published time for polls in the election. That the 2nd Respondent by the provisions of the Electoral Act, Section 28(i)(h) and the manual does not have the power to adjust the election time schedule. It is thus submitted that when the 1st and 2nd Respondents pleaded in paragraph 21 of their reply that the 2nd Respondents directed that polls open at 10.00 a.m. and close at 5.00 p.m., they were pleading to an ultra vires conduct. On the delayed arrival of polling materials which 1st and 2nd Respondents conceded that the delay was caused by minor adjustments here and there in paragraphs 19 and 21 of their reply, learned counsel for the Petitioner submitted that the onus shifted to the 1st and 2nd Respondents to prove that what they admitted did not substantially affect the result, particularly as they conceded that it could not affect the result. He submitted that the 1st and 2nd Respondents did not discharge this onus, and the Court is enjoined to nullify the election on the authority of SWEM vs. DZUNGWE (1966) NWLR 297 at 303; where the Supreme Court quoted with approval, the dictum of LORD COLERlDGE, CJ., in WOODWARD vs. SARSONS (1875) LR 10 CP 733. It is submitted that the 1st and 2nd Respondents cannot be heard to argue that lateness in the commencement of polls was not capable of affecting the result of the election. Learned counsel submitted that they complained of non-compliance with Section 64(1) - (4), Section 75 of the Electoral Act, and paragraphs of the Manual for Electoral Officials (Exhibit EP 2/A1) in paragraph 9B(iv)(a) - (e)) of the petition. He submitted that ‘while Section 74 of the Act provide for step by step recording of poll in the electoral form, Section 75 provides for the recording of result into the forms and to be signed and countersigned by the relevant officers and polling agents at those levels, and copies given to the Police Officers, and the polling agents where available. Counsel submitted that the results of the April 21, 2007 Presidential Election were collated and announced in a manner that was so inconsistent with substantial non-compliance that rendered the entire exercise illegal, void and of no legal consequence whatsoever. He referred to the case of CCB (NIG) PLC vs. A. G. ANAMBRA STATE (1992) 8 NWLR (Pt. 261) 528 at 556. He submitted that the mandatoriness of Section 75 of the Act is expressed, and that any result purporting to be a collated result from a Ward (EC 8B), Local Government (EC 8C), State (BC 8D) and National (EC 8DA) and (EC 8E) collation centre, but which does not have any of these mandatory features of being stamped, signed and countersigned was conclusively not produced in a normal electoral process at the relevant collation centres, and is therefore void and of no electoral value citing CCB (NIG) PLC vs. A. G. ANAMBRA STATE (supra). Learned counsel also referred to S. 46(B) of the Electoral Act, and submitted that it is for the Respondents to show that the act or thing done in spite of the failure of other officials or agents or their non-attendance, was otherwise done properly. Learned counsel submitted that the collation exercise at the National level was inconclusive, and there are two collated results at the National level namely EP2/B2 and EP2/B3 and submitted that these results apart from being inconsistent between two, also manifest inconsistencies between both EC8D(A)s and the States results forms EC8Ds, and also between EC8D(A)s and the EC8E. He also submitted that there are inconsistencies in the state result with Form EC8E. Learned counsel went on to name States where the entries in the two EC8D(A)s are mutually in conflict on number of registered voters, with the total number of votes cast, and on the total number of rejected votes, (page 44, paragraph 5.02D(vi)). Learned counsel also went on to highlight some inconsistencies in EP2/B2, and EP2/B3 at paragraph 5.02D(vii) at page 45 of the address and also paragraph 5.02D(viii) at page 46 of his address. Learned counsel then made a graphical presentation of all the inconsistencies explained in the address at page 46a of his address and produced a chart No. 3 where all the final scores of the political parties are presented, both the electronic and the manual and submitted that neither Exhibit EP2/B2 and EP2/B3 is of any legal efficacy, not having been produced in accordance with the provisions of the law and the overwhelming inconsistencies between the statements in the two results and the inconclusiveness of the collation exercise. Learned counsel cited and relied on the following cases; OLAJINLE vs. ADEAGBO (1988) 2 NWLR (Pt. 75) 238 at 254-255; NWABUOKU vs. OTTI (1961) 1 ALL NLR 487; AONDOAKAA vs. AJO (1999) 5 NWLR (Pt. 602)206 at 225; INEC vs. RAY (2004) 14 NWLR (Pt. 892) 92 at 123; and A. G. OYO STATE vs. FAIRLAKE HOTELS (No.2) (1989) 5 NWLR (Pt. 121) 255 at 283. Counsel submitted that both Exhibits EP2/B2 and EP2/B3 are fundamentally defective and thus illegal and the Court is urged to so hold. Learned counsel also submitted that in the absence of any valid EC8D(A) on record, there was nothing upon which the form EC8E could stand, Exhibit EP2/B 1 would naturally collapses as something which is put on nothing cannot stand, citing MACFOY vs. UAC (1962) AC 152. Learned counsel in Chart 4 at pages 53 to 56 of his address made an analysis of the entries in the EC8E and the EC8Ds from the States and submitted that the entries made in form EC8E must be expunged as being arbitrary, and that same will amount to substantial disenfranchisement enough to nullify the election. On non-compliance with Section 29(1) and (2) of the Electoral Act, learned counsel submitted that in paragraph 9B(v) of the petition, the Petitioner complained that the 1 st Respondent failed to administer the Oath of neutrality to all its officers thus, they were left without moral inhibition from evil and unfair conduct. That the 1st and 2nd Respondents having denied the averment in the petition, failed to produce before the Court a copy of the affirmation or oath, it is thus submitted that the 1st and 2nd Respondents are deemed to have admitted following cases are cited; OLAJINLE vs. ADEAGBO (supra); OSAKWE vs. GOV. IMO STATE (supra) and A. G. OYO STATE vs. FAIRLAKE HOTELS (NO.2) (1989) 5 NWLR (Pt.I21) 255 AT 283. Petitioner’s lead counsel submitted that the Petitioner has established that there was absolute non-compliance with Section 29(1) and (2) of the Act. It is submitted as a result of this, the 1st Respondent through its agents returned favourable results for the 5th and 6th Respondents, for example in Taraba, Katsina, Kaduna, Benue, Imo, Abia and Nasarawa States. It is thus submitted that manifestation of bias in the conduct of an election is an act of non-compliance with the provisions of the Act, and thus capable of vitiating an election under Section 146(1) of the Electoral Act. He submitted that bias once established vitiates any process even if the result would have been the same if there was no bias citing the case of ADIGUN vs. A.G. OYO STATE (1987) 2 NWLR (Pt.53) 197. The Court was urged to nullify the election on that ground. Learned lead counsel for the 1st and 2nd Respondents, K. Agabi, SAN, challenged the competence of paragraphs 9B, 9B(i)(b), 9B(ii), 9B(iii)(a), 9B(iii)(b), 9B(iii)( c), 9B(iii)( d), 9B(iii)(f), 9B(iii)(g), 9B(iii)(h), 9B(iv)(a)(b)(c)(d) and (e), 9B(v), 9B(vi), 12(B)C, 16(b)(i), 16(b)(iv), 16(b)(v) 16(b)(vi) and 16(c) of the Petitioner’s petition which he submitted, offends the rules of pleadings by pleading inferences of law without pleading the facts from which such inferences are to be drawn and whether same ought not to be struck out. Learned counsel highlighted all the above paragraphs of the petition and submitted that the pleadings in respect of all the allegations of non-compliance with the provisions of the Electoral Act fall short of the requirement of the rules of pleadings. Learned counsel submitted that paragraph 9B of the petition which ought to set out the facts in support of the grounds challenging the election for “non-compliance”, consist of general complaints bereft of specific facts, speculative assalions and legal arguments and conclusions. With respect to paragraph 9B(i)(b) of the petition, it is submitted that the pleadings is at best speculative, and argument on it is bereft of any specific facts. It is also submitted that the Petitioner ought to plead the specific facts which, if proven will enable the Court to draw such inference or conclusion. In respect of paragraph 9B(iii) of the petition, it is submitted that it is an argument with no specific facts in relation to the irregular times or the several parts of the country. It is also submitted that paragraph 9B(iii)(g) of the petition is at best speculative. Paragraph 9B(iii)(h), it is submitted is argumentative. He submitted that it is elementary that the rules of pleadings are mandatory as it allows for the just and effectual determination of a suit or a claim based on disputed facts. It is his view that a pleading of intention or motive of a defendant bereft of the facts upon which the inference of such intention or motive could be drawn is bad and ought to be discountenanced. Paragraph B of the petition, it is submitted, fails to fulfill the purpose of pleading and cited and relied on the following cases; SOSANY A vs. ONADEKO (2000) 11 NWLR (Pt.677) 34 at 55 - 56; ABACHA vs. FAWEHINMI (2000) 6 NWLR (Pt 660) 228 AT 306; BUBARI vs. OBASANJO (2006) 2 EPR 295 at 431-432; (2005) 14 NWLR (Pt.445)1; and EMEGOKWE vs. OKADIGBO (1973) 4 SC 113. Counsel submitted that the petitioners in their pleadings have not set out any facts on which their case is supposedly based, but the paragraphs of the pleadings reek of legal arguments, conclusions, inferences and submissions, rather than material facts founding their claims and the Court is urged to strike out the aforementioned paragraphs of the petition which offend the law on pleadings. Learned lead counsel to the Petitioner, M. 1. Ahamba, SAN in response to this issue submitted that none of the paragraphs named under this issue offends any known rule of pleading. In respect of paragraphs 9B(ii)(b) of the petition, he submitted that evidence exists not on a satellite station, but a satellite LGA in Exhibit EP2/8B(9) under Taraba State . That the LGA called Special Area does not exist in the list of LGAs in Taraba State under Part I of the First Schedule of the 1999 Constitution. He referred to Form ECSC. He also submitted that the paragraph is not bereft of any facts as all the facts alleged have been proved concerning conduct of election at irregular times and which facts have been admitted by the 1st and 2IJd Respondents in paragraph 20 of their reply. Learned counsel also submitted that the allegation of rigging elections has been proved with result sheets, some of which bear dates that are pre-election date like20/4/2007 and other post election dates like 22, 23, 24, 26, and 27 and even 31/04/07. In respect of the other paragraphs, learned counsel referred to all the documents admitted in the proceedings, and submitted that this goes to prove all the allegations in the pleadings and is not in any way speculative. The Court is urged to resolve the issue of the 1st and 2nd Respondents in the negative and against the 1st and 2nd Respondents.
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IT is extant in the stated ruling that it is trite law that in interlocutory stage, issues that call for determination in the main case should be avoided. The issues of joinder and inconsistent claims are not jurisdictional matters but mere irregularities which can be sorted at the hearing of the petition. 1 see no proper challenge of jurisdiction in the two applications. This Court has full jurisdiction to entertain the petition to enable all parties to ventilate their cases on merit. Accordingly, I dismiss both applications." It is settled law that issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case, in appropriate circumstances, acts as issue estoppel against the second one. The appropriate circumstances are:- 2. That judicial decision said to create the estoppel was final. 3. That the parties to the judicial decision or their privies were the same person as the parties to the proceedings in which the estoppel is raised or their privies. Refer to Inakoju v. Adeleke & Ors. (2007) 29 NSCQR (Pt.11)958 at 1105 -1106. It should be reiterated that the issues of exclusion of the petitioners and the juristic personality of the 5th Respondent were never determined in the ruling handed out on 20th September, 2007. It is extant in the stated ruling of that petition. In effect, estoppel does not avail the petitioners. The objection is hereby overruled. And we hereby proceed to determine all deserving live issues contained in the petition. The first pertinent issue as agreed by the parties is whether or not the petition is incompetent for the reason that the ground of unlawful exc1usion was raised along with other grounds as alternatives. Learned Senior Counsel for the 1st and 2nd Respondent submitted that ground of unlawful exclusion vide Section 145(1)(d) of the Electoral Act 2006 cannot be made in the alternative with other grounds provided for in section 145(1)(a),(b) and (c) of the stated Act. He observed that the wordings of the section are very clear, simple and free from any ambiguity and, therefore, should be given their ordinary literal meaning. He cited Awolowo v. Shagari (1979) 6-9 S.C.1. Learned Senior Counsel for the 1st and 2nd Respondents further submitted that the ground provided under Section 145(l)(d) of the Electoral Act relating to the exclusion of a candidate from contesting the election and the three earlier grounds provided under the same Section 145(1)(a),(b) and (c) relating to disqualification of a candidate who was returned, something is missing corrupt practices and noncompliance with the provisions of the Act and failure of the respondents to secure majority of the lawful votes cast at the said election are mutually exclusive. Learned Senior Counsel further contended that a candidate who is complaining of exclusion at an election does not have the locus standi to challenge the result of the election based on other alternative grounds. He referred to Section 144(1) of the same Act and submitted that it is only a candidate in an election or a political party which participated in the election that can present an election petition. Learned Senior Counsel observed that the use of 'or' after the provision of Section 145(1)(a),(b) and ( c) of the Act demarcates it from the provision 145(1)(d) of the stated Act. He referred to Arubo v. Aiyeleru (1993) 3 NLWR (Pt. 208) 126 at 141 – 142 para G-A; Abia State University v. Anyaibe (1996) 3 NWLR (Pt. 439) 646 at 661; ANPP v. Haruna (2003) 14 NWLR (Pt. 841) 546 at 570. Learned Senior Counsel for the 4th - 808th Respondents was at one in his submission with the learned Senior Counsel for the 1st and 2nd respondents. He felt that since the petitioners alleged that they did not participate in the election, they cannot vest themselves with locus standi to challenge the election under Section 45(1)(a),(b) and (c) of the Act. He contends, in effect, that the Court has no jurisdiction to entertain the petition as constituted since the grounds are inconsistent and fail to meet the requirements of the law. He cited Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR 358; Thomas v. Olufosoye (1985) 1 NWLR (Pt. 18) 669; A.G. Adamawa State v. A.G. Federation (2005) 18 NWLR (Pt. 958) 581 at 623 and Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501. Learned Counsel then urged us to hold that having relied on the ground of valid nomination and unlawful exclusion; the Petitioners are not permitted to rely on any other ground under Section 145 of the Electoral Act, 2006. Learned Senior Counsel for the petitioners, on this issue, felt otherwise. He submitted that a petitioner is not precluded from relying on alternative grounds under Section 145 of the Electoral Act, 2006. He referred to Bullen and Leake and Jacob's Precedents of Pleadings, 12th Edition at Page 41 as well as 'Civil Procedure in Nigeria ', 2nd Edition, page 381 by Fidelis Nwadialo, SAN. He also cited Metal Construction (W.A.) Ltd. v. Aboderin (1998) 8 NWLR (Pt. 563) 547 Newbreed Organisation Ltd. v. Erhomsele (2006)5 NWLR (Pt. 974) 499 at 544; Help (Nig.) Ltd v. Sliver Anchor (Nig) Ltd. (2006) 5 NWLR (Pt. 972) 196 at 222; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1. Learned Senior Counsel opined that definition given to the word 'or’ in the case of Abia State University v. Anyaibe(supra) supports the petitioners' stand. It is agreed that election petitions are sui generis. That is to say that they are in a class of their own. This is no longer a moot point. At this point, the law under consideration is the provision of Section 145(1) of the Electoral Act, 2006 which provides as follows:- "145(1) An election may be questioned on any of the following grounds:- (a) that (person whose election is questioned was, at the election, not qualified to contest the election; (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act; (c) that the respondent was not duly elected by majority of lawful votes cast at the election; or (d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.” The word 'or' is defined in Black's Law Dictionary, sixth Edition in the following terms: In Arubo v. Aiyeleru (supra) at pages 141 - 142 paras. G – A, the Supreme Court in construing the use of the word 'or' held thus:- “……….The power given to the court under the rule is to either strike out or amend, the word 'or' having a disjunctive connotation. It does not give the Court power to strike out and amend………………” Also in the case of Abia State University v. Anyaibe(supra) at page 661 paras. B-C, this Court, per Katsina-Alu, J.C.A. (as he then was) held: That is to say it separates the provision preceding it from the provision coming after it. Its role is to show that the provisions in which it is appearing are distinct and separate one from the other. " With due diffidence to the Senior Counsel for the petitioners, the views of the learned authors referred to by him on 'Precedents of Pleadings' and 'Civil Procedure in Nigeria' and other authorities cited by him are not directly of moment herein. This is to say they are not in respect of election petitions which are sui generis. Learned Senior Counsel for the petitioners confused reliefs sought in an election petition and grounds therein which in our humble view, are distinct. while reliefs or prayers can be made in the alternative in an election petition, a ground of exclusion cannot be made in the alternative with other grounds. A ground of exclusion in an election petition stands clearly on its own. It is mutually exclusive of other grounds. See ANPP v. Haruna (2003) 14 NWLR (Pt. 841) 546 at 570. It is instructive to note here that in the case of Bubari v: Obasanjo(supra), the alternative ground therein is not in respect of unlawful exclusion. It is crystal clear from the fore-going that the petitioners are approbating and reprobating at the same time. This should not be allowed since it is frowned at by the law. Accordingly, this issue is resolved in favour of the respondents against the petitioners. We find that having relied on the ground of valid nomination and unlawful exclusion, the petitioners are, ordinarily, precluded from relying on any other ground under Section 145(1) of the Electoral Act, 2006 and the alternative grounds ought to be struck out. After all, it has been variously held that where a statute provides a particular mode .of performing a duty regulated by statute, that method, and no other, must have to be adopted. Refer to Nuhu Sani Ibrahim v. INEC & ors. (1999) 8 NWLR (Pt. 614) 334 at 352; Muhammadu Buhari v. Alhaji Mohammed Dikko Yusuf (2003) 4 NWLR (Pt. 841) 446 at 498 – 499. The next salient issue for determination, in our view, is whether the petitioners were excluded from participating in the Presidential eEection of 21st April, 2007 or not. Learned Senior Counsel for the 4th - 808th respondents submitted that in order to annul the election on the ground of unlawful exclusion, the Court will first have to determine that the petitioners were unlawfully ecluded from the election. He maintained that the petitioners pleaded facts showing that they participated in the election. He referred specifically to paragraphs 18(a)(xxiii), 18(a)(xxiii), 18(a)(xxiv) and 20 of the Petition. Learned Senior Counsel also referred to sworn testimonies of eminent party members of the 3rd petitioner who testified to the fact that the petitioners duly participated in the presidential election of 21st April, 2007. These witnesses include Alhaji Oumar S***ten, the Legal Adviser of the Campaign outfit of the Petitioners; Chief Tom Ikimi, who introduced himself as a former Minister of Foreign Affairs; Senator Ben Obi, the 2nd Petitioner herein and: Alhaji Lai Mohammed, a Legal Practitioner and Chairman of the 3rd Petitioner's Media and Publicity Committee; along with others. Learned Senior Counsel observed that the petitioners, on their own, identified 26 States in which certain irregularities were allegedly committed during the conduct of the election. He contended that if they were not participants at the election how would they arrive at such allegations? Learned Senior Counsel for the petitioners maintained that the petitioners were excluded at nomination stage. He referred to Sections 31 and 32 of the Electoral Act, 2006. He submitted that Exh. EPT/03/P/6, the judgment of the Supreme Court is conclusive proof that the 1st petitioner was excluded from the election up until 16th April, 2007 when the judgment of the Supreme Court was delivered. Further, learned Senior Counsel opined that the 1st petitioner was excluded subsequent to nomination before close of campaign. He referred to Exh. EPT/03/P/17 (2) which depicts that the 1st petitioner was not on INEC's list as at 16th March, 2007. It is also the stance posed by the petitioners that their exclusion continued even after 16th April, 2007. They maintained that up to this date and up to the day of election on 21st April, 2007, the 1st petitioner was not on the same level with other candidates for the election. Learned Senior Counsel felt that the 1st petitioner was made a conditional candidate. He referred to Exh. EPT/03/P/36 (22) and cited the case of Davies v. Lord Kensignton LR 9 CP 720. There is also the contention that the 1st petitioner was excluded during the poll and from the ballot. Learned Senior Counsel mooted the idea of bad faith as a test of exclusion. In this petition, the petitioners strenuously pleaded the fact of unlawful exclusion from the election of 21st April, 2007. In paragraph 7 of the petition, they pleaded as follows:- ''7. Your petitioners state that the Presidential election was held on 21st April, 2007 in which twenty-five (25) political parties fielded candidates: Alhaji Atiku Abubakar was validly nominated on the platform of Action Congress (AC) although excluded by the 4th Respondent…………………….” Further, in relevant parts of paragraph 15 of the petition dealing with the grounds of the petition, they pleaded as follows:- "that the grounds on which this petition is based are: (a) that petitioner was validly nominated by the 3rd Petitioner but was unlawfully excluded from the election. (d) In the statement of the full names of candidates standing nominated published by the 4th respondent, the name of the 1st Petitioner was unlawfully excluded. (e) In addition to sub paragraphs (a) - (d) above, the 4th and 5th Respondents at different public fora and after nomination had closed, repeatedly declared and stated that the if Petitioner was disqualified from contesting the April 21, 2007 Presidential Election and implacably maintained this position till the day of the election. (h),(i) The 3rd respondent by a letter dated 18th January, 2007actually instigated the events that led to the unlawful exclusion of the 1st Petitioner. (v) Thereafter, in defiance of the said judgment the 4th Respondent proceeded to publish its official list of candidates excluding the name of the 1st petitioner. In addition, the list was published on the INEC website. (vi) A letter was written by the 3rd Petitioner to the 4th and 5th Respondents on the 9th day of February, 2007 complaining about the unlawful exclusion of its candidate. (vii) that 4th respondent replied the Petitioner’s letter on 17th of February, 2007 declining to revisit the unlawful exclusion. (x) Your Petitioners shall lead evidence that apart from the final list of Presidential candidates published by the 4th Respondent on 15th March, 2007 no further amended supplementary or modified list of Presidential candidates was published by the 4th Respondent in which the names of the Petitioners were included. (xi) Notwithstanding the fact that the 1st petitioner was unlawfully excluded, the 4th Respondent proceeded to allocate 2,637,848 votes to the 1st petitioner as a candidate in the election. (xii). Notwithstanding, the judgment of the Federal High Court of 3rd April, 2007 and the judgment of the Supreme Court of 16th April, 2007, the 4th Respondent still refused to restore and/or publish the name of the 1st Petitioner on the list of candidates standing nominated as at Tuesday, 17th April, 2007." Curiously, the above notwithstanding, the petitioners, in paragraphs 18 and 20 of their petition pleaded facts showing that they participated in the election. The said paragraphs read as follows:-
OYO STATE RIVERS STATE 18(a)(xxiv) ... ,. .. As a result majority of eligible Party Agents, particularly those of the 3rd Petitioner were deprived the opportunity to observe the conduct of the election. At this point, it is relevant to produce the material parts of the testimonies of some of the witnesses called by the petitioners who testified to the fact of participation in the Presidential election of 21st April, 2007 . "I am the legal Adviser to Atiku Campaign Office, the campaign outfit of the 1st and 2nd Petitioners………………….. voted in the Presidential and National Assembly Election of 21st April, 2007. The name of my polling station is Kalium Central School in Kalllum Ward in Shelldam Local Government Area of Plateau State . When I was given the Presidential Ballot Paper, I observed that the symbol reflected thereon is not the symbol as approved by INEC. It does not have two out of the three colours that are associated with the symbol i.e. Green and Black. Many of the voters did not recognize the symbol of Action Congress in the few places where election took place in Plateau State . " Chief Tom Ikimi:
to be continued
The next point canvassed by the parties relates to non-compliance in respect of failure to include in the ballot papers the symbol of the 3rd Petitoner. Learned Senior Counsel for the petitioners felt that the correct Logo of the 3rd peititioner was not reflected on the ballot paper. He submitted that same contravenes the provision of section 45(1) of the Electoral Act, 2006. He felt that having failed to insert the correct logo of the 3rd petitioner on the ballot paper that failure on its own is enough to invalidate the entire election. Learned Senior Counsel for the 1st and 2nd respondents obseverd that there is no evidence of the number of voters who were misled at the election by the insertion of the alleged incorrect logo of the 3rd petitioner on the ballot paper. He further submitted that same did not affect the result of the election in any way. It must be observed here that the petitioners agreed that their party logo was inserted on the ballot paper. Their complaint is only in respect of the colour at the background of the log. There is no evidence that any prospective voter was misled. As well, it has not been demonstrated how the alleged lapse substantially affected the result of the election. In Lamidi Musediku v. Rabiu Giwa (1956) WRNLR 61 where the appropriate symbol was not allotted to the ...petition under Regulation 62 (g) of the Western Region (Local Government) Elections Regulations, it was held that the fairly literate petitioner who was not under any misapprehension about the symbol allotted to him and who did not complain until after the publication of the result could not provide sufficient evidence to show that the election was not conducted in substantial compliance with the regulations. In Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941)f 1 at 255, the pex Court held that it is simply not to prove that breaches of the rules enacted into the Electoral Act, and other rules made for the conduct of the election were breached. The appellants, as in this case, must go further to prove that such breaches prevented the majority voters from casting their votes in their favour. It therefore follows from the above that it is not just all miniature complaints that can ground the nullification of a presidential election. The petitioners further complained about the non-inclusion of the name and photograph of the 1st petitioner in the ballot papers. Learned Senior Counsel for the petitioners contended that an election in which the ballot papers used do not carry the names and/or photographs of the candidates is invalid. Learned Senior Counsel for the 1st and 2nd respondents submitted that the inclusion of the name/photograph of the candidate is not a must as vote cast is for the political party sponsoring him. He referred to the case of Amachi v. INEC (unreported SC/252/2007 delivered on 18th January, 2008. Learned Senior Counsel further maintained that votes were cast for the petitioners and they have not shown how the non-inclusion of the name/photograph of the 1st petitioner has affected the result. This issue, as canvassed by the petitioners, has been settled by the Supreme Court in Amaechi v. INEC (supra). Since it has been decided therein that votes cast at an election is for the sponsoring political party, the inclusion of the name and photograph of the candidate appears to be of no moment. Further, there is no evidence that any voter was misled. In any event, if any complaint in this regard is congizable, same is cured by the provision of section 146(1) of the Electoral Act, 2006. The next issue put up the petitioners relates to non-compliance by reason of arbitrary shifting of the time for polling. The Senior Counsel for the petitioners maintained that the 4th respondent flouted its Guideline by shifting the poll slated for 8.00 am at 3.00pm to 10.00a.m to 5.00 pm on 21st April 2007, a day before the election. He contended that the 4th respondent has no power to shift the time fixed for the poll. The petitioners did not, in clear terms, state their grievance and remedy sought for the alleged infraction. Learned Senior Counsel for the 1st and 2nd respondents observed that even by shifting of the poll the seven hours scheduled for the poll still remained infact. He submitted that it must be shown that late poll affected electorates who would have voted. He observed that there is no evidence by the petitioners that his affected the result of the election. Learned Senior Counsel for the 4th-808th respondents maintained that the shifting of time for poll is a matter in the discretion of the respondents having regard to exigencies of the time. He observed that the petitioners have not shown that the discretion was wrongly exercised and that all the candidates were equally affected. Further, he maintained that the court was not told how the late commencement of the elections affected the outcome of same. We must express it here that it is immaterial that the poll was shifted by two hours on 21st April, 2006. The period of 7 hours slated for the election as still maintained. The shifting of pill affected all the contestants. It was not shown that the exercise of discretion to shift the poll was wrongly done. And there is no evidence that any prospective voter was denied the right to cast his vote. Candidly speaking, I cannot, with adequate precision, surmise the rationale behind this complaint. The decision in the case of Bassey v. Young (supra) is in point here. The issue, in my opinion is of no serious moment.” The next point raised by the petitioners relates to alleged corrupt practices as disclosed in result sheets and other related documents. The petitioner specified 26 states in which they allege that there were malpractices. The States are Anambra, Adamawa, Bauchi, Bayelsa, Benue, Cross River, Ebonyi, Edo, Ekiti, Enugu, Gombe, Sokoto, Taraba, Imo, Jigawa, Katsina, Kebbi, Kwara, Kogi, Nasarawa, Niger, Ogun, Osun, Oyo, Rivers and Zamfara. The complaint of the petitioners is that many election results forms tendered by them contain manifest irregularities that they strongly feel substantially affected the result of the election. According to the petitioners, the result afflicted by one defect or the other are contained in their schedule on state by state basis. Learned Senior Counsel for the 4th-808th respondents observed that after the parties had closed their case, the petitioners attempted to introduce fresh facts in the three volumes described as Schedules 1-25 to specify alleged defects in the results of the Presidential election. He cited Ademoso v. Okoro (2005) 22 NSCQR (Pt.1) 460 at 472 and National Investment and Properties Co.Ltd. v. The Thompson Organisation (1969) 1 AII NLR 138. Learned Senior Counsel strongly felt that the petitioners should not be allowed to introduce fresh facts via their address as the respondents cannot now reply to those facts. I am of the view that the submissions of the Senior Counsel for the 4th 908th respondents can well be put on their mettle. I have carefully persued the contents of Schedules 1-25 as presented by the petitioners in their written address. I am of the view that there is a strong attempt to introduce fresh facts not pleaded in the original petition. In Schedule No. 16 which deals with Kwara State, for example, the facts pleaded in the petition, in sum, are late arrival of electoral materials, ballot boxes filled with thumb printed ballot sheets, and unlawful voting in the private residences of PDP supporters. The fresh facts attempted to be introduced in the schedule to the address which cannot be said to be analysis of evidence by any imaginations as they are not based on any existing pleadings are:- mutilated results of voting scores, results witnessed by agents without party affiliation, 100% vote for PDP, undated results, unsigned results sheets, unstamped results, non-signed results by party agents and apparent similar writing. The above, as depicted, is replete in respect of the other 25 states complained about by the petitioners. And this should not be allowed as it offends the rules of pleadings and takes the other side by surprise. Even then, the analysis contained in the schedules has no bearing whatsoever with the facts as pleaded in the petition. It is glaring that most of the defects pinpointed appear trivial in character and insignificant in number. For example, 100% vote for a party at a polling unit cannot be regarded as an act of non-compliance. Wrong form used for results deals with form and not substance. Allegation that results were witnessed by agents without party affiliation appears untenable. There can be no agent without party affiliation. Allegation of apparent similar writing can only be sustained after evidence by a hand writing expert which is not available. Allegation of non-signing by party agents cannot frustrate the election. Complaint in respect of under supply of ballot papers is a logistic problem and not a defect. Beside, the fact that the litany of defects alleged were not pleaded, the petitioners have failed to show how same affected the outcome of the election. To this extent, the defects pinpointed do not help the case of the petitioners. See Buhari v. Obasanjo (supra) at p. 191; Awolowo v. Shagari (1979) All NLR 120 At 161; Akinfosile v. Ijese (1960) SCNLR 447. |
