Sunday, November 13, 2011

NOTICE OF APPEAL-ENO EKAPONG OFEM V. HONOURABLE BASSEY EKO EWA (ABI/YAKURR FEDERAL CONSTITUENCY

IN THE COURT OF APPEAL OF THE FEDERAL REPUBLIC OF NIGERIA


IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR



PETITION NO.EPT/CR/NA/9/2011



BETWEEN:

1. ENO EKAPONG OFEM

2. ACTION CONGRESS OF NIGERIA APPELLANTS



AND



1. HON. BASSEY EKO EWA

2. INDEPENDENT NATIONAL ELECTORAL RESPONDENTS

COMMISSION

3. RESIDENT ELECTORAL COMMISSIONER

CROSS RIVER STATE

4. PEOPLES DEMOCRATIC PARTY



NOTICE AND GROUNDS OF APPEAL

Take Notice that the Appellant being dissatisfied with the Judgment of the National/State Assemblies Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria, presided over by Honourable Justice G. M. Nabaruma (Chairman); Honourable Justice S. U. Dikko (Member) and Honourable Justice A. K. Baaki (Member) delivered on Friday the 4th Day of November, 2011, do hereby appeal upon the Grounds set out in Paragraph 3 and will at the hearing of the appeal seek the Reliefs set out in Paragraph 4.



The Appellant further state that the Names and Addresses of the persons directly affected by the appeal are those set out in Paragraph 5 hereof.



2. PART OF THE DECISION OF THE LOWER TRIBUNAL COMPLAINED OF: The entire decision.



GROUND ONE

The Tribunal misdirected itself when it held thus:

“Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 and 33 of the Petition are abandoned as in Paragraph 4.6 of the Petitioners’ Final Address, it is conceded that from the state of pleadings and cross examination, the Petitioners are not able to prove that election did not hold in the 6 Wards of Yakurr Local Government as averred in the Petition. Accordingly we hereby strike out the abandoned paragraphs of the Petition relating to the allegation that the election did not hold in Yakurr Local Government on 26th April, 2011 and hold that election held thereat in compliance with the provisions of the Electoral Act, 2011, and the Manual for Conduct of the Election”.



PARTICULARS OF MISDIRECTION

I. The Appellants (Petitioners) did not abandon Paragraphs 15, 16, 17, 18, 19, 22, 24, 25 and 33 of the Petition but led evidence in proof thereof.

II. The Appellant never conceded in their Final Written Address that they were not able to prove that elections did not hold in the 6 Wards of Yakurr Local Government.

III. The Tribunal came into the arena by striking out the Paragraphs of the Petition even though neither of the parties made such an application thus compromising its position as an impartial and independent adjudicator and thereby infringed on the right of fair hearing of the Appellants.

IV. The Tribunal failed to appraise the evidence received when it concluded that elections held in the 6 Wards of Yakurr Local Government in compliance with the provisions of the Electoral Act and the Manual for Conduct of Elections.



GROUND TWO

The lower Tribunal erred in law when it held that the production of FORMS EC8A, EC8B, EC8C, EC8D and EC8E was proof that election held and the whole exercise enjoys the presumption of Section 150 (1) of the Evidence Act and the authority of ABUBAKAR V. YARADUA (2008) 19 NWLR (PT. 1120) 1 @ 155.



PARTICULARS OF ERROR

I. The presumption that the result of an election is correct and regular is not sacrosanct.

II. The production of the FORMS EC8A, EC8B, EC8C, EC8D and EC8E was not evidence that election held in compliance with the provisions of the Electoral Act in view of the fact that the Appellants had pleaded and given particulars of errors, mutilations of figures, unstamped, unsigned and other contradictions and inconsistencies replete in these forms.

III. The Tribunal was bound to evaluate evidence before concluding that the production of these Forms were evidence that election held.

IV. The Tribunal totally and completely misapplied the authority of ABUBAKAR V. YARADUA (supra) to the facts and circumstances of the case.



GROUND THREE

The lower Tribunal erred in law when it held that an attempt was made in Paragraph 14 of the Petition and Paragraph 9 of the 1st Appellants Written Statement on Oath to prove that election was not conducted in due and substantial compliance with the Electoral Act (supra) and the Manual for Conduct of the Election but that there is no scintilla of evidence adduced in that regard and the entire evidence adduced is devoid of any iota of proof that the election was not conducted in accordance with the Electoral Act.



PARTICULARS OF ERROR

I. The Appellants proved their case by deduction of compelling and cogent evidence.

II. The Tribunal failed to evaluate the entire evidence called by the Appellants but chose to rely on the Statement on Oath of the 1st Appellant to come to the conclusion that election was conducted in compliance with the provisions of the Electoral Act.

III. The Appellants gave evidence that the election was not conducted in accordance with the provisions of the Electoral Act but the Tribunal elected to ignore such evidence.

IV. The Tribunal was bound to thoroughly and painstakingly appraise and evaluate the evidence called by the Appellants rather than relying on the Statement on Oath of 1st Appellant which it did not evaluate before coming to the conclusion that the election was conducted in accordance with the provisions of the Electoral Act.



GROUND FIVE

The Tribunal erred in law when it held that the Appellant was unable to prove that there was no voting in Abi Local Government Area because they did not tender Voters’ Cards of the persons alleged to have been disenfranchised and proved that their names were not ticked.

PARTICULARS OF ERROR

I. The cases of Audu vs. INEC (No. 2) (2007) 13 NWLR (Pt. 1212) 456 @ 522-523; Chima v. Onyia (2009) 2 NWLR (Pt. 1124) 1 @ 42 and Ayogu v. Nnanami (2006) 8 NWLR (Pt. 981) 160 @ 166 are not relevant and applicable to decide on a Petition that is based on the provisions of the Electoral 2010 (as amended).

II. The decision of the Court in the cases averred in Paragraph 1 hereof were based on the provisions of the 2002, 2006 and 2007 Electoral Acts which have been abrogated.

III. The Electoral Act, 2010 (as amended) have not made provisions for the punching of a Voter’s Card to show that who voted in an election.

IV. The production of a Voters’ Card cannot be evidence that such a voter had voted.

V. The current position is that where evidence of non-voting is alleged it is incumbent on the Independent National Electoral Commission to produce and tender the Voters’ Register to establish that it conducted elections.

VI. The Appellants tendered the Votes Register for Abi Local Government but the Tribunal ignored it.



GROUND SIX

The Tribunal erred in law held that the Appellants failed to tie the testimonies of their witnesses to the documents tendered from the Bar by Counsel to the Appellants.



PARTICULARS OF ERROR

I. The documents tendered from the Bar by Counsel to the Appellants were documents belonging to the 3rd Respondent that were used to conduct the election.

II. These documents were pleaded and therefore relevant.

III. The Tribunal was bound to evaluate these documents after it had received it into evidence.

IV. There was credible and sufficient evidence in the Statements on Oaths which these witnesses called by the Appellants and adopted as their evidence in chief to connect these documents.



GROUND SEVEN

The Tribunal erred in law when it held that from available evidence election in 10 Wards of Abi Local Government was held in substantial compliance with the Electoral Act and the Manual for conduct of election.



PARTICULARS OF ERROR

I. There was evidence that election in the 10 Wards of Abi Local Government Area were not held in substantial compliance with the provisions of the Electoral Act but the Tribunal ignored same.

II. There was in virtually all the Polling Units in Abi Local Government Area no ‘Accreditation of Voters’.

III. There were evidence before the Tribunal that Forms EC8A (i) and other EC8 series were replete with miscalculations, alteration, mutilation and were unstamped and unsigned.

IV. There was evidence that electoral materials were not distributed but the Tribunal chose to ignore this.



GROUND EIGHT

The Tribunal erred in law when it held that the submissions and analysis of the Appellants’ Counsel on the documentary evidence goes to no issue.



PARTICULARS OF ERROR

I. The Tribunal infringed on the right of fair hearing of the Appellants by refusing to consider and pronounce on the submission and analysis on documentary evidence received by the Tribunal during trial.

II. The Tribunal was bound to consider the analysis made by Counsel on documentary evidence which it has received.

III. The Tribunal failed to appreciate that the analysis was supposed to assist it come to a fair and just decision in the case.

IV. The Tribunal infringed on the right to fair hearing of the Appellants by rejecting an analysis which was based on the case put forward by the Appellants during trial.



GROUND NINE

The lower Tribunal erred in law when it held that it was unnecessary for the 1st Respondent to plead and tender his Certificate of Return in the election which is the bone of contention.



PARTICULARS OF ERROR

I. The 1st Respondent was bound to plead and tender his certificate of Return as conclusive evidence that he won the election in dispute.

II. The Certificate of Return of the 1st Respondent is relevant to the determination of the question as to who won the election or was returned by the Independent National Electoral Commission.

III. The Tribunal had jurisdiction to inquire, upon the presentation of an election Petition, into whether or not the person returned was validly returned.

IV. The Certificate of Return is one of the materials that the Tribunal would have relied on to ascertain whether or not the 1st Respondent was validly returned in the election.



GROUND TEN

The lower Tribunal erred in law when it held that the Respondents had not abandoned their pleadings because the Respondents used the case of the Appellant to elicit sufficient and reliable evidence against the Appellant during trial.



PARTICULARS OF ERROR

I. It is trite that where a Defendant fails to call evidence but rather elects to rest his case on that of the Plaintiff he has abandoned his pleadings.

II. The Tribunal was bound to strike out the Replies of the Respondents when the Respondents elected not to call evidence at the close of the Appellant’s case.

III. Where pleadings are not supported by evidence they are deemed to have been abandoned and therefore totally worthless.

IV. The position taken by the Tribunal that the pleadings of the Respondents were not abandoned even after they refused to call evidence at the close of the Appellant’s case is not tenable at law.



GROUND 11

The Judgment is against the weight of evidence.



4.RELIEFS SOUGHT FROM THE COURT OF APPEAL



I. An Order allowing the Appeal and setting aside the Judgment of the National/State Assemblies Election Petition Tribunal sitting in Calabar, Cross River State of Nigeria, delivered on Friday the 4th Day of November, 2011, in Petition NO.EPT/CR/NA/9/2011.

II. An Order entering Judgment in favour of the Appellants and granting the reliefs sought by the Appellants’ in their Petition.

III. Any further Order(s) as the Court may deem fit and proper to make in the circumstances of this case.



5. NAMES AND ADDRESSES OF PERSONS DIRECTLY AFFECTED BY THE APPEAL:



I. THE APPELLANT

ENO EKAPONG OFFEM & ACTION CONGRESS OF NIGERIA

C/O HIS SOLICITORS

OBONO, OBONO & ASSOCIATES

2ND FLOOR, TRINITY HOUSE, MABUSHI,

ABUJA, NIGERIA.



OR



NO.1 EJIKA LANE, LETAMPANKOM,

IJIMAN, UGEP, YAKURR LOCAL GOVERNMENT AREA,

CROSS RIVER STATE.

08033490404; 08033303287

okoiadvocate@gmail.com; okoiobla@hotmail.com



II. THE 1ST RESPONDENT

C/O HONOURABLE BASSEY EKO EWA

EKORINIM 2, CALABAR, CRS, NIGERIA.



III. THE 2ND & 3RD RESPONDENTS

C/O THE RESIDENT ELECTORAL COMMISSIONER

INDEPENDENT NATIONAL ELECTORAL COMMISSION

MURTALA MOHAMMED HIGHWAY, CALABAR, CRS, NIGERIA.



IV. THE 4TH RESPONDENT

C/O THE STATE CHAIRMAN

PEOPLES DEMOCRATIC PARTY

PDP STATE SECRETARIAT, MM HIGHWAY

CALABAR, CROSS RIVER STATE, NIGERIA.



DATED THIS 11TH DAY OF NOVEMBER, 2011.





CHIEF OKOI O. OBONO-OBLA

OBONO, OBONO & ASSOCIATES

(APPELLANT’S SOLICITORS)

2ND FLOOR, TRINITY HOUSE,

MABUSHI,

ABUJA, NIGERIA.



OR



NO.1 EJIKA LANE, LETAMPANKOM,

IJIMAN, UGEP, YAKURR LOCAL

GOVERNMENT AREA,

CROSS RIVER STATE.





ADDRESS FOR SERVICE:

1. ON THE 1ST RESPONDENT

C/O HONOURABLE BASSEY EKO EWA

EKORINIM, CALABAR, CRS, NIGERIA



2. ON THE 2ND & 3RD RESPONDENTS

C/O THE RESIDENT ELECTORAL COMMISSIONER

INDEPENDENT NATIONAL ELECTORAL COMMISSIONER

INEC HEAD OFFICE, 81 MURTALA MOHAMMED HIGHWAY

CALABAR.



3. ON THE 4TH RESPONDENT

C/O THE STATE SECRETARY

PEOPLES DEMOCRATIC PARTY

PDP STATE SECRETARIAT, MURTALA MOHAMMED HIGHWAY

CALABAR, CROSS RIVER STATE, NIGERIA.











1 comment:

  1. I commend your effort geared towards bringing this issue on net for concerns persons to deliberate on. this issue of legal irregularities in our legal system has much to talk about. our legal system have suffered in the hands of corrupt legal practitioners whose imminent urge for money has deprive many the possibility of sound and goo judgment. normally legal judgment suppose to be based on fact, evidence, empirical reasoning, and principles, but today we are hearing about technicalities. what is this technicalities all about? this is just a means to deceive and deprive people sound and truthful judgment.

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