OKOI OBONO-OBLA VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION-THE STRUGGLE FOR A TRANSPARENT AND ACCOUNTABLE ELECTORAL COMMISSION

IN THE FEDERAL HIGH COURT OF NIGERIA


IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA



SUIT NO. FHC/ABJ/CS/ /2011



BETWEEN:

OKOI OBONO-OBLA - PLAINTIFF



AND



INDEPENDENT NATIONAL ELECTORAL - DEFENDANT

COMMISSION (INEC)



ORIGINATING SUMMONS

Let the INDEPENDENT NATIONAL ELECTORAL COMMISSION OF Zambezi, Maitama, Federal Capital Territory, Abuja, Nigeria within 8 (Eight) days after the service of this Summons, inclusive of the day of such service, cause an appearance to be entered for it to this Summons which is issued upon the application of OKOI OBONO-OBLA OF PLOT 1132 FESTUS OKOTIE EBO CRESCENT UTAKO DISTRICT, ABUJA, Federal Capital Territory, Nigeria, who claims to be entitled to the reliefs hereafter set out and for the determination of the following questions:

1. Whether by a true interpretation and construction of Section 5 (a) of the Freedom of Information Act, 2011, the Defendant is not obligated to allow the Plaintiff unfettered access to information concerning the:

i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY

ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION

iii. A LIST OF CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS, upon the Plaintiff’s application within 7 (Seven) days?

2. Whether the refusal or failure of the Defendants to grant the application of the Plaintiff for access to information concerning the i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS within seven (7) days of the receipt of same does not amount to an infringement of the provisions of Sections 5 (a) and 8 (1) of the Freedom of Information Act (supra)?

3. Whether by a true interpretation and construction of the provisions of Section 8 (5) of the Freedom of Information Act (supra) the Defendant is not entitled to pay a fine of N500, 000 (Five Thousand Naira) for the wrongful denial of the Plaintiff the right of access to Information sought?



The Plaintiff claims against the Defendant as follows:

1. A Declaration that the refusal, failure and or neglect by the Defendant to release the information requested by the Plaintiff concerning i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS same amounts to a violation of Section 8 (1) of the Freedom of Information Act (supra) and therefore is wrongful, illegal and unconstitutional.

2. A Declaration that the refusal, failure and or neglect by the Defendant to release the information requested by the Plaintiff concerning the i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS amounts to a violation of the provisions of Section 5 (a) of the Freedom of Information, Act, 2011.

3. A Declaration that by the true interpretation and construction of Section 5 (a) of the Freedom of Information Act (supra) the Defendant as a Public Institution within the meaning of Section 7 and 32 of the Freedom of Information Act (supra) is obligated to furnish on request by the Plaintiff: i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY; ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION; iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS.

4. A Mandatory Order of Injunction directing the Defendant including its servants, agents, privies, officials and or cohorts to furnish the Plaintiff with a comprehensive and detailed information concerning i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY; ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS case within Seven (7) days of the delivery of Judgment.

5. An Order of this Honourable directing the Defendant to pay a fine of N500, 000 (Five Thousand Naira) for the wrongful denial of the Plaintiff the right of access to the Information sought.

6. The costs of this Action.

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



DATED THIS 7TH DAY OF DECEMBER, 2011.



This summons was taken out by Chief Okoi O. Obono-Obla of Messrs Obono, Obono & Associates (Legal Practitioners & Consultants) Plot 1132 Festus Okotie Ebo Street, Utako District, Federal Capital Territory, Abuja, Nigeria and Legal Practitioners/Counsel (08033490404; 08033303287) to the above named Plaintiff.



The Defendant(s) may appear hereto by entering appearance personally or by Legal Practitioner either by handing in the appropriate forms duly completed at the Federal High Court Registry or by sending them to that office by post.



Note: If the Defendant does not enter appearance within the time and at the place above mentioned such orders will be made and proceedings may be taken as the Judge may think just and expedient



FOR SERVICE:

1. ON THE PLAINTIFF

C/O HIS COUNSEL

OBONO, OBONO & ASSOCIATES

PLOT 1132, FESTUS OKOTIE EBOH CRESCENT

UTAKO DISTRICT, ABUJA.

08033490404; 08035087322; 08033303287

tynaobla@yahoo.com;

okoi_advocate@yahoo.com



2. ON THE DEFENDANT

C/O THE COMMISSION SECRETARY

INDEPNDENT NATIONAL ELECTORAL COMMISSION

INEC HEADQUARTERS, MAITAMA,

FEDERAL CAPITAL TERRITORY, ABUJA,

NIGERIA.











































IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA



SUIT NO. FHC/ABJ/CS/ /2011



BETWEEN:

OKOI OBONO-OBLA - PLAINTIFF



AND



INDEPENDENT NATIONAL ELECTORAL - DEFENDANT

COMMISSION (INEC)



AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

I, Okoi Obono-Obla,Male, Legal Practitioner and a Nigerian residing at Federal Housing Estate Phase Two, Karu, Federal Capital Territory, Abuja, do hereby make Oath and State as follows thus:

1. That I am the Plaintiff in this case and as such the facts of this case are within my personal knowledge save as otherwise stated.

2. That I know as a fact that the Defendant is a Public Institution of the Federal Government of Nigeria established by the Constitution of the Federal Republic of Nigeria, 1999, and the Electoral Act, 2010, and vested with the power of registration of voters and the conduct of election into the offices of the President, Vice President, National Assembly, Governorship, State Houses of Assembly, Local Government Councils in the Country and the Federal Capital Territory, Abuja.

3. That prior to the holding of the April, 2011, General Election, the Defendant in exercise of its statutory powers carried out a voters registration exercise throughout the 36 States of the Federation and the Federal Capital Territory, Abuja, using Direct Data Capturing Machine which took the finger prints of every voter that is registered to vote in the Country.

4. That at the end of the voters’ registration exercise; the Defendant announced that all the finger prints of registered voters in the Country will be stored in the National Biometric Data Bank to be kept by the Defendant.

5. That the Defendant expended more than N87 Billion which was approved by the National Assembly to carry out the voters registration exercise and the production of a National Biometric Data Base of all voters registered in the Country.

6. That on or about the 14th November, 2011, I wrote an application to the Defendants that I should be allowed access to information to i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS.

7. That the said application dated the 14th November, 2011, was duly served on the Chairman of the Defendant, Professor Attahiru Muhammadu Jega, through DHL Courier service.

8. That a copy of the said application which I requested for information concerning: i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS is attached herewith and marked as Exhibit AA.

9. That a copy of the acknowledgement of service of DHL Courier delivery of a copy of the application on each of the Defendant on or about the 19th November, 2011. The acknowledgment of service is attached herewith and marked as Exhibit BB.

10. That the Defendant has failed, refused and neglected to reply to the said application.

11. That the Defendant has failed, refused and or neglected to allow me access to the information sought within seven (7) days as provided by Law.

12. That unless the Defendant is compelled by an Order of this Honourable Court they will continue to refuse me access to the information sought by me from them.

13. That this affidavit is made in good faith conscientiously believing the facts contained herein to be true and correct in accordance with the Oaths Act, 2004.



------------------------

DEPONENT



Sworn to at the Federal

High Court Registry, Abuja,

this ....... day of December, 2011.



BEFORE ME







COMMISSIONER FOR OATHS



























































IN THE FEDERAL HIGH COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA



SUIT NO. FHC/ABJ/CS/ /2011



BETWEEN:

OKOI OBONO-OBLA - PLAINTIFF



AND



INDEPENDENT NATIONAL ELECTORAL - DEFENDANT

COMMISSION (INEC)



WRITTEN ADDRESS IN SUPPPORT OF ORIGINATING SUMMONS PURSUANT TO ORDER RULE OF THE FEDERAL HIGH COURT (CIVIL PROCEDURE) RULES, 2009.



INTRODUCTION

This is the Written Address in support of the Originating Summons filed by the Plaintiff seeking the following reliefs:

1. A Declaration that the refusal, failure and or neglect by the Defendant to release the information requested by the Plaintiff concerning i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS same amounts to a violation of Section 8 (1) of the Freedom of Information Act (supra) and therefore is wrongful, illegal and unconstitutional.

2. A Declaration that the refusal, failure and or neglect by the Defendant to release the information requested by the Plaintiff concerning the i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS amounts to a violation of the provisions of Section 5 (a) of the Freedom of Information, Act, 2011.

3. A Declaration that by the true interpretation and construction of Section 5 (a) of the Freedom of Information Act (supra) the Defendant as a Public Institution within the meaning of Section 7 and 32 of the Freedom of Information Act (supra) is obligated to furnish on request by the Plaintiff: i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY; ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION; iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS.

4. A Mandatory Order of Injunction directing the Defendant including its servants, agents, privies, officials and or cohorts to furnish the Plaintiff with a comprehensive and detailed information concerning i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY; ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS case within Seven (7) days of the delivery of Judgment.

5. An Order of this Honourable directing the Defendant to pay a fine of N500, 000 (Five Thousand Naira) for the wrongful denial of the Plaintiff the right of access to the Information sought.

6. The costs of this Action.

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



AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS

The Plaintiff has filed a 13 paragraphed affidavit in support of the Originating Summons. Attached to the Affidavit are documents marked as Exhibits AA and BB respectively. Exhibit AA is the Plaintiff’s Application to the Defendants of request for access to Information dated the 14th November, 2011. Exhibit BB is the acknowledgement of service of the Plaintiff’s application dated the 19th November, 2011, to the Defendant by DHL COURIER SERVICE. The Plaintiff shall rely on all the paragraphs of the Affidavit.



STATEMENT OF FACTS

The Plaintiff shall adopt the affidavit in support of the Originating Summons as his Statement of Facts.



ISSUES FOR DETERMINATION

1. Whether by a true interpretation and construction of Section 5 (a) of the Freedom of Information Act, 2011, the Defendant is not obligated to allow the Plaintiff unfettered access to information concerning the:

iv. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY

v. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION

vi. A LIST OF CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS, upon the Plaintiff’s application within 7 (Seven) days?

2. Whether the refusal or failure of the Defendants to grant the application of the Plaintiff for access to information concerning the i. NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY ii. A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION iii. A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS within seven (7) days of the receipt of same does not amount to an infringement of the provisions of Sections 5 (a) and 8 (1) of the Freedom of Information Act (supra)?

3. Whether by a true interpretation and construction of the provisions of Section 8 (5) of the Freedom of Information Act (supra) the Defendant is not entitled to pay a fine of N500, 000 (Five Thousand Naira) for the wrongful denial of the Plaintiff the right of access to Information sought?



The Plaintiff has posed several Questions for the determination by this Honourable Court. The Plaintiff shall respectfully adopt these Questions as the Issues for determination by this Honourable Court.



ISSUES NO. 1 & 2 (ISSUES NOS 1 & 2 SHALL BE ARGUED TOGETHER)



ARGUMENT

1.1 It is submitted that by the provisions of Section 5 (a) of the Freedom of Information Act, 2011, the Defendant is under an absolute duty to release to the Plaintiff a request for access of information upon an application made to it by the Plaintiff 7 (Seven) days after the receipt of such application.

1.2 For the avoidance of any doubt, it is pertinent to reproduce the provisions of Section 5 (a) of the Freedom of Information Act (supra) thus:

“Where information is applied for under this Act, the public institution to which the application is made shall subject to Section 6, 7 and 8 of this Act after the application is received :

a. Make the information available to the applicant.

b. Where the public institution considers that the application should be denied, the institution shall give written notice to the applicant that access to all part of the information will not be granted, stating the reasons for the denial, and the section of this Act under which the denial is made”.



There is compelling affidavit evidence that the Plaintiff by an application dated the 14th November, 2011, sought from the Defendant access to information concerning (I) NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY (II) A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION (III) A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS. See Exhibit AA.

1.3 There is compelling evidence that this application was received by each of the Defendants on the 19th November, 2011. See Exhibit BB.

1.4 It is clear that the Defendant was in receipt of the application of the Plaintiff by the 19th November, 2011. It therefore goes without saying that the Defendant is under a mandatory duty imposed by Law to release such application sought by the Plaintiff after seven days of the receipt of the Application of the Plaintiff.

1.5 It is submitted that the when the words used in a statute are clear, lucid and unambiguous they must be given their ordinary and natural meaning ascribed to them by the legislature.

1.6 It is clear as the crystal that by a true interpretation and construction of the provisions of Section 5 (a) of the Freedom of Information Act the Defendant is under a duty to promptly release information sought by the Plaintiff by the 26th November, 2011, when the seven days given to them by the provisions of Section 5 (a) of the Freedom of Information Act to release such information to an applicant expired.

1.7 It is clear that the Defendants have undoubtedly abdicated the duty placed on them by the provisions of the Section 5 (a) of the Freedom of Information Act.

1.8 In the light of the above, we respectfully urge the Court to resolve these issues against the Defendant and answer Questions Nos. 1 & 2 posed by the Plaintiff in the Originating Summons in the affirmative.



ARGUMENT OF ISSUE NO. 3



2.1 It is submitted that where it is established (like in the case under reference) that a public institution from which access to information is sought by an applicant under the provisions of Section 5 (a) of the Freedom of Information Act fails to release such information to the applicant seven days after the receipt of such application is made, such defaulting officer or public institution shall be reliable upon conviction to payment of a fine of N500, 000. See Section 8 (4) & (5) of the Freedom of Information Act.

2.2 Undoubtedly the Defendant has bluntly and adamantly refused and failed to release the information sought by the Plaintiff of: (I) NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY (II) A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION (III) A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS.

2.3 It is pertinent that the Defendant is deemed to be a public institution on which an application for access to information can be sought from under the provisions of Section 5 (a) of the Freedom of Information Act.

2.4 It is submitted that a public institution within the purport of the Freedom of Information Act include any legislative, executive, judicial, administrative or advisory body of the Government, including boards, bureau, committees or commissions of the State and any subsidiary body of those bodies including but not limited to committees and sub-committees which are supported in whole or in any part by public fund or which expends public fund and private bodies providing public services, performing public functions or utilizing public funds. See Section 29 of the Freedom of Information Act (supra).

2.5 In the light of the above, we respectfully invite this Honourable Court to resolve this Issue against the Defendants and answer Question No. 3 posed in the Originating Summons in the affirmative.



CONCLUSION

3.1 This Honourable Court is respectfully invited to accede to the reliefs sought by the Plaintiff for the following reasons thus:



a. The Plaintiff’s right of unfettered access to information cognisable by Section 2 (1) of the Freedom of Information has been breached by the Defendant which has refused and or failed to release upon the application of the Plaintiff the access of information sought by the Plaintiff of: (I) NATIONAL BIOMETRIC DATA BASE OF VOTERS REGISTER BY INEC IN THE COUNTRY (II) A DETAILED, COMPREHENSIVE & FAIR STATEMENT OF ACCOUNTS OF EXPENDITURE INCURRED BY INEC FOR THE CONDUCT OF ELECTION (III) A LIST CONTRACTORS AWARDED CONTRACTS CONCERNING PRINTING OF BALLLOT PAPERS; VOTERS CARD AND OTHER DOCUMENTS CONCERNING THE 2011 GENERAL ELECTIONS from the 26th November, 2011 till date;

b. The Defendant is under a mandatory duty to release to the Plaintiff access of information seven days after the receipt of his application. Undoubtedly, the Defendant has egregiously breached the mandatory duty placed on them by the provisions of Section 5 (a) of the Freedom of Information Act.

c. The Defendant is entitled to payment of a fine of N500, 000.00 for breaching the Plaintiff’s right of access to information.



DATED THIS 7TH DAY OF DECEMBER, 2011.







CHIEF OKOI O. OBONO-OBLA

OBONO, OBONO & ASSOCIATES

(PLAINTIFF’S SOLICITORS)

PLOT 1132, FESTUS OKOTIE EBOH CRESCENT

UTAKO DISTRICT, ABUJA.

08033490404; 08033303287

okoi_advocate@yahoo.com

okoiobla@hotmail.com

BRIEF OF ARGUMENT OF CPC & ODEY OYAMA -ODEY OYAMA & ANOR. VERSUS HON. AGBIJI MBEH AGBIJI & OTHERS

IN THE COURT OF APPEAL


HOLDEN AT CALABAR



PETITION NO. EPT/CR/SA/15/2011

APPEAL NO. CA/C/NAEA/285/2011



THE ELECTION INTO IKOM I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.



BETWEEN:

1. ODEY OYAMA APPELLANTS

2. CONGRESS FOR PROGRESSIVE CHANGE



AND



1. AGBIJI MBEH AGBIJI

2. PEOPLES DEMOCRATIC PARTY RESPONDENTS

3. INDEPNDENT NATIONAL ELECTORAL

COMMISSION



THE APPELLANTS BRIEF OF ARGUMENT





PREPARED BY:





CHIEF OKOI O. OBONO-OBLA

OBONO, OBONO & ASSOCIATES

LEGAL PRACTITIONERS & CONSULTANTS

(APPELLANTS’ SOLICITORS)

TRINITY HOUSE, MABUSHI,

FEDERAL CAPITAL TERRITORY, ABUJA,

NIGERIA.

08033303287; 08033490404

okoiadvocate@gmail.com

okoiobla@hotmail.com;

okoi_advocate@yahoo.com





ADDRESS FOR SERVICE:

1. ON THE 1ST RESPONDENT

C/O THEIR SOLICITOR

NDOMA EGODO, REGINA AND CO.

93, NDIDEM USANG ISO ROAD, CALABAR.



2. ON THE 2ND RESPONDENT

C/O THEIR SOLICITORS

EBAYE AKONJOM

64 NDIDEM USANG ISO ROAD

CALABAR



3. ON THE 3RD RESPONDENT

C/O THEIR COUNSEL

EKURI, ONOR & CO

65, NDIDEM USANG ISO ROAD

CALABAR.



























































IN THE COURT OF APPEAL

HOLDEN AT CALABAR



PETITION NO. EPT/CR/SA/15/2011

APPEAL NO. CA/C/NAEA/285/2011



THE ELECTION INTO IKOM I STATE CONSTITUENCY OF THE CROSS RIVER STATE HOUSE OF ASSEMBLY HELD ON SATURDAY THE 26TH DAY OF APRIL, 2011.



BETWEEN:

1. ODEY OYAMA APPELLANTS

2. CONGRESS FOR PROGRESSIVE CHANGE



AND



1. AGBIJI MBEH AGBIJI

2. PEOPLES DEMOCRATIC PARTY RESPONDENTS

3. INDEPNDENT NATIONAL ELECTORAL

COMMISSION



APPELLANTS’ BRIEF OF ARGUMENT



INTRODUCTION

This is the Brief of Argument filed by the Appellants against the Judgment of the National/State Assembly Election Petition Tribunal delivered on the 12th November, 2011, dismissing the Petition filed by the Appellants against the return of the 1st Respondent as the winner of the election held on the 26th April, 2011, into the Ikom One State Constituency of the Cross River State of Nigeria. The Tribunal was presided over by Honourable Justice Solomon A. Akinteye (Chairman); Honourable Justice K. O. Okpu (Member I) and Chief Magistrate S. Muhammad (Member II).



STATEMENT OF FACTS

I. The 1st Appellant was a candidate under the aegis of the Congress for Progressive Change, the 2nd Appellant in the election into Ikom I State Constituency of the Cross River State House of Assembly held on Saturday the 26th April, 2011.

II. The 1st Respondent was the candidate of the 2nd Respondent in the said election. The 1st Respondent was sponsored to contest the election by the Peoples Democratic Party, the 2nd Respondent.

III. At the conclusion of the election, the 1st Respondent was declared the winner of the election by the 3rd Respondent.

IV. The Appellants were utterly aggrieved by the return of the 1st Respondent as the winner of the election and accordingly presented a Petition on the 17th May, 2011, in the National/State Assembly Petition Tribunal (hereinafter called the Trial Tribunal). See Paragraph 9.1 of Page 9 of the record.



V. During the course of trial before the First Trial Tribunal under the Chairmanship of Honourable Justice Nabaruma, the Petition was struck out on the ground that the Appellants violated Paragraph 18 (1) of the First Schedule to the Electoral Act which requires that a Petitioner apply for the issuance of Pre-Trial Information Sheet (Forms TF 007 & 008) at the close of pleadings.

VI. However, on appeal the Court of Appeal allowed the appeal and remitted the case back for hearing to another trial Tribunal headed by Honourable Justice S. A. Akinteye (Chairman); Honourable Justice K. O. Okpu (Member I) and Chief Magistrate S. Muhammad (Member II).

VII. The Appellants tendered from the Bar through their Counsel several documents with the consent of the Respondents in accordance with the procedure outlined in Paragraph 41 (3) of the First Schedule to the Electoral Act, 2010 (as amended) which were admitted and marked as Exhibits G; Exhibit H; Exhibit I and Exhibit J respectively by the Trial Tribunal. See Page 377 of the Record.

VIII. The 2nd Respondent through its Counsel also tendered from the Bar a number of documents which were admitted and marked as Exhibits A (Judgment of the Federal High Court, Calabar in Suit No. FHC/CA/CS/17/2011-Liyel Imoke & 37 ors vs. INEC delivered on the 24th March, 2011); Exhibits B - B77 (Forms EC8A (i) for 78 Polling Units in Ikom One State Constituency); Exhibits C - C7 (Forms EC8B(I)); Exhibit D (Form EC8C(I); Exhibit E (Form EC8E(I) and Exhibit F (Certificate of Return) by the Trial Tribunal. See Page 374 of the Record.

IX. It is instructive that Exhibit A; Exhibits B - B77; Exhibits C - C7; Exhibit D; Exhibit and Exhibit F respectively were front loaded and attached to the Reply of the 2nd Respondent in accordance with the provisions of Paragraph 12 (3) of the First Schedule to the Electoral Act (supra). See Page 212-299 of the record.

X. At the trial, the Appellants called two witnesses, PW1 and PW2, but the Trial Tribunal refused to allow these witnesses adopt their Statements on Oath upon an objection taken by the Respondents on the ground that their statements were contrary to the format prescribed by the provisions of Section 13 of the Oaths Act, 2004. See Pages 390-395 of the record.

XI. The 1st & 3rd Respondents did not call any evidence or tender any documentary evidence at the trial. See Pages 396-397 of the record.

XII. At the conclusion of trial, the Trial Tribunal ordered written addresses to be filed by the Parties. See Pages 396-397 of the record.

XIII. In its Judgment the Trial Tribunal dismissed the Petition and affirmed the 1st Respondent as the winner of the election. See Pages 402-417 of the record.

XIV. The Appellants were deeply dissatisfied with the judgment of the trial Tribunal and accordingly filed a nine grounds Notice of Appeal before this Court. See Pages 488-496 of the record.



ISSUES FOR DETERMINATION

From the Nine (9) Grounds of Appeal, the Appellants have framed the following issues for determination by this Honourable Court thus:

1. Was the Tribunal right when it sustained the objection of the Respondents to the admissibility (adoption) of the Statements on Oaths of witnesses called by the Appellant on the ground that these Statements did not strictly comply with the provisions of the Oaths Act, 2004; and was the sustainability of the objection by the Tribunal not an infringement on the right of fair hearing of the Appellants?

2. Was the refusal of the Tribunal to evaluate documentary evidence tendered by both the Appellants and the 1st Respondent concerning the documents used by the 2nd Respondent to conduct the election on the ground of absence of oral evidence correct? And if the answer to the above is in the affirmative, did such refusal not occasion a miscarriage of justice on the Appellants?

3. Was the Tribunal was correct when it held that there was no evidence to prove that the election was vitiated by corrupt practices or non compliance with the provisions of the Electoral Act, 2010 (as amended) and that there was no evidence before it relating the documents or bundle of documents to specific infraction of the Electoral Act (supra)?

4. Was the Tribunal correct to have discountenanced pages 11-13 of the Appellants Written Address which was based on Counsel’s analyses of documentary evidence tendered and admitted by the Tribunal, and if the answer is in the affirmative, did the Tribunal’s action/inaction not occasioned a miscarriage of justice on the Appellants?

5. Was the Tribunal was bound to consider, resolve and pronounce on all issues legitimately raised and canvassed by the Appellants and if the answer is in the affirmative did the failure of the Tribunal to do that not occasion a miscarriage of justice on the Appellants?

6. Was the Trial Tribunal correct when it held that the issue of the qualification of the 1st Respondent to contest the election raised and pleaded in Ground Two (2) of the Petition is a pre-election matter which it did not have jurisdiction to hear and determine?

7. Whether the Tribunal was correct when it held that the Respondents have not abandoned their pleadings because the Appellants are bound to succeed on the strength of their case?

8. Whether the Tribunal was correct when it held that there are a plethora of authorities on the presumption of correctness of returns produced by Returning Officers in view of the fact that there was abundance of documentary evidence before it which it refused to examine that the election was vitiated by substantial non-compliance with the provisions of the Electoral Act?



ISSUE NO 1:

Was the Tribunal right when it sustained the objection of the Respondents to the admissibility (adoption) of the Statements on Oaths of witnesses called by the Appellant on the ground that these Statements did not strictly comply with the provisions of the Oaths Act, 2004; and was the sustainability of the objection by the Tribunal not an infringement on the right of fair hearing of the Appellant?



ARGUMENT

1.1. During trial when the 1st Appellant as PW1 wanted to adopt his Statement on Oath in accordance with the procedure outlined in Paragraph 41(3) of the First Schedule to the Electoral Act, 2010 (as amended) the Respondents after the witness had taken Oath on entering the witness box, took an objection to the admissibility of the Statement on Oath PW1 intended to adopt on the ground that the Statement contravened the provisions of Section 13 of the Oaths Act, 2004, because it did not use the exact wordings in the Form to the Schedule of the Oaths Act meant for Statutory Declarations. See Page 390 - 394 of the record.

1.2. Page 5 of the Judgment of the Trial Tribunal found at Page 476 of the Record, the Trial Tribunal noted thus:

“In proof of their Petition, the 1st Petitioner testified and called one more witness but their statements on oath could not scale the hurdle of admissibility in evidence due to the sustenance of the objection raised to the admissibility of the written statements for not being in compliance with the provision of Section 13 of the Oaths Act, 2004”.

1.3. It is instructive that the trial tribunal erroneously believed that a Written Statement on Oath is in the same pedestal as document sought to be tendered that has to scale the test of admissibility before it can be admitted. This is not the correct position of by the Law. It is submitted that a Written Statement made pursuant to Paragraph 4 (1) (b) of the First Schedule to the Electoral Act is not a document that should be admitted as an exhibit. Such a statement when the witness that makes or deposes to it enters the witness box is to be adopted and when it is adopted it becomes such witness’ evidence in chief. See Paragraph 41 (3) of the First Schedule to the Electoral Act (supra).

1.4. Subsequent objections were taken against the Statements on Oath of PW2 by the Respondents on the same ground that the Statement of this witness as well did not contain the exact wordings used by the provisions of Section 13 of the Oaths Act. See Pages 394-395 of the record.

1.5. Again the Tribunal sustained the objection and rejected admission of the Statement of PW2 relying on the authority of OBUMNEKE V. SLYVESTER (supra). See 390-394 of the record.

1.6. The Respondents objection to the 1st Appellant as PW1 adopting his Statement on Oath was that the Statement on Oath of PW1 was incompetent because it’s paragraph 29 did not strictly comply with the provisions of Section 13 of the Oaths Act as it was not exactly worded in the form prescribed by the First Schedule of the Oaths Act, for Statutory Declarations. The Statement on Oath of PW1 is at Pages 31-45 of the Record. See further 390-394 of the Record.

1.7. It is pertinent to reproduce Paragraph 29 of the Statement on Oath of PW 1 thus:

“That I am aware that this fraudulent device of preventing my supporters from freely using their votes is clearly in breach of Section 131, subsection (C) of the Electoral Act 2010 as amended. And I am making this Oath consciously believing the contents to be and correct and in accordance with the Oaths Act, 2004 as amended”.

See Paragraph 32 of Page 31 of the Record.

1.8. The Tribunal upheld the objection and ordered the Statement on Oath of PW1 be rejected. Despite the upholding of the objection, the Appellants went ahead to call PW2 as second witness. There were objections to the admissibility of PW2’s Statement on Oath as well by the Respondents on the ground on these Statements or Depositions also violated Section 13 of the Oaths Act. See pages 393 & 394 of the Record.

1.9. The grounds of the objections were hinged on the fact that Paragraph 29 of the of Statement on Oath of PW1 and Paragraph 18 of the Statement on Oath of PW2 contravened Section 13 of the Oaths Act (supra).

1.10. The averment in Paragraph 29 of the Statement on Oath of PW1 is identical or exactly the same with Paragraphs 18 of the Statement on Oath of PW2. Paragraph 18 of the Statement on Oath of PW1 reads thus: “That all these cases are currently being handled by the Nigerian Police Authorities deployed at the Ikom Divisional Police Station and the Cross River State Police Command, Diamond Hill in Calabar”. See Page 15-17 of the record.

1.11. The Tribunal sustained the objection of the Respondents to the Statements on Oaths of the PW1 & PW2 and ordered that the various Statements be rejected document Nos. 1 & 2 respectively. See Page, 393 & 394 respectively. The Statement on Oath of PW1 is at Pages 39-43 of the Record & the Statement on Oath of PW2 is at Pages 15-17 of the Record.

1.12. The Tribunal after taking arguments from both sides held that the Statement even though it conformed substantially, failed to strictly comply with the Format prescribed in the 1st Schedule to the Oaths Act and the form thereof and thus sustained the objection and ordered that the Statements be marked rejected.

1.13. The apposite question at this point will be: what is a ‘Statutory Declaration’ as contemplated by the legislature of Section 13 of the Oaths Act? Is a Witness Statement or Written Deposition on Oath as contemplated by Paragraphs 4 (6) (b) & 41 (3) of the First Schedule to the Electoral Act the same as ‘Statutory Declaration’ envisaged by the Oaths Act? We shall answer the question in the negative.

1.14. A Statutory Declaration in the form prescribed by the provisions of Section 13 of the Oaths Act and the Schedule thereto is meant for age declaration, marriage and asset declaration. It follows that Statutory Declaration form in the Oaths Act are not meant for Witnesses Statements or Depositions contemplated by Paragraphs 4 (1) (b) and 41 of the First Schedule to the Electoral Act. In IBRAHIM V. INEC (2007)3 ELECION PETITIONS REPORTS 50 @ 66 it was held that Section 13 of the Oaths Act, 2004, provides for four various Oaths or Declarations that may be subscribed by various persons depending on the nature of their duty. The provision must be contained in an affidavit. It provides for classes of oath that may be lawfully administered by any Commissioner of Oaths, Notary Public or any other person authorized by the Oaths Act to administer Oaths, for example, the oath to be subscribed to by a deponent to an affidavit as in the instant case is titled Oath for Affidavits at page 12250 of the Oaths Act Cap 333. The clear intention of the legislature under the Oath titled ‘Statutory Declaration’ is to afford persons who intend to make declarations such as marriage, age or assets to subscribe to that declaration. It is not the intention of the legislature that the wording of the declaration be incorporated in an affidavit to render it valid.

1.15. The issue that was resolved in Ibrahim V. INEC (supra) Page 52, was whether the Tribunal or the parties can waiver or reduce the effect of the statutory provision of Section 13 and Schedule 1 of the Oaths Act? The Court of Appeal resolved the issue in the affirmative and held that the affidavit in support of the Motion was competent and by inference the motion itself.

1.16. The Tribunal relied on the authority of Obumneke v. Sylvester (2010) ALL FWLR (PT. 506) 1945 @ 1961 to hold that failure to use the exact words or format prescribed by the legislature of the 1st Schedule to the Electoral Act in concluding the Statements on Oath of PW1, PW2, PW3 and Pw4 is fatal and rendered the Statements inadmissible. In that case an objection was taken to the competency of a witness statement on oath made by the Appellant on the ground that it did not strictly comply with the Form prescribed by Section 13 of the Oaths Act. The objection was sustained by the Tribunal. On appeal, the Court of Appeal sustained the objection on the ground that the Statement on Oath of witnesses of the Appellant did not comply with the provisions of the Oaths because the Statements did not use exactly the words used by the legislature of Section 13 of the Oaths Act especially the format for Statutory Declarations prescribed in the 1st Schedule to the Oaths Act.

1.17. It is submitted that the decision by the Court of Appeal in Obumneke’s case was per curiam because the attention of the Court was not averted to the fact that the Format prescribed in the 1st Schedule to the Oaths Act which the Court relied on to arrive at its decision was not the Form in the Oath Act meant for evidence on Oath which a witness’ statement actually is. The Format the Court relied on to arrive at its decision was the Format meant for Statutory Declaration which is not applicable and relevant to Oaths meant for Written Deposition or Witness Statement on Oath contemplated by Paragraph 4 (1) (b) and 41 (3) of the First Schedule to the Electoral Act (supra).

1.18. In the Obumneke’s case the lower Tribunal struck out the Statements of the Appellant for being incompetent. On appeal the Court of Appeal held that the statement was invalid because it did not use the format prescribed by the lawmaker of the First Schedule to the Oaths Act for Statutory Declaration.

1.19. It is submitted therefore that the authority of Obumneke is not relevant and applicable to the facts and circumstances of this case and is therefore distinguishable.

1.20. The lower Tribunal was absolutely wrong and fell into error to have relied on the case of Obumneke to reject all the Statements on Oath of the Appellant and his witnesses.

1.21. The Tribunal should have taken a liberal disposition rather than a strict and technical one towards the construction and interpretation of the provisions of Section 13 of the Oaths Act in view of the fact that Election Petitions are sui generis and public policy demands that the law should be interpreted liberally in order for substantial justice to be done to the parties.

1.22. The Obumneke’s case is distinguishable for the following reasons thus:

(a) The form prescribed in the Schedule to the Oaths Act on which the case was decided was the form for Statutory Declaration not Written Statements on Oath of testifying witnesses to an election Petition;

(b) The Court was not invited to decide on what is a ‘statutory declaration’;

(c) A witness statement contemplated by Paragraphs 4 Rule (1) (d) & 41 (3) of the First Schedule is NOT A STATUTORY DECLARATION;

(d) The relevant form is the Form prescribed by the Oaths Act for evidence Oaths.

(e) A Statement on Oath contemplated by Paragraph 4 (6) (b) and 41 (3) of the First Schedule to the Electoral Act (supra) is not affidavit.

(f) It is instructive that in Paragraph 4 (6) (b) of the First Schedule the word “witnesses Statements on Oath” used whereas in Paragraph 41 (3) of the First Schedule the words “written deposition” were used by the legislature.

(g) It follows that a “written statement on oath” or “written deposition” envisaged by Paragraphs 4 (6) (b) and 41 (3) of the First Schedule to the Electoral Act is not an affidavit.

(h) A Statement on Oath must be in a narrative form whereas an affidavit must be divided into paragraphs and numbered consecutively. The Court of Appeal made a distinction between a witness statement on and an affidavit in the case of in the case of CHUKWUMA V. NWOYE (2011) ALL FWLR (PT. 553) 1942 @ 1 961-1962, Paras. A-H thus: “A statement on oath is one of the procedural/innovations introduced by the Practice directions for election petition. And unlike an affidavit must be numbered consecutively, a statement on oath could be in a narrative form and need not be divided into consecutive paragraphs”.

1.23. The Oxford Law Dictionary Page 478 defines a “statutory declaration” thus:

“A declaration made in a prescribed form before a justice of the peace, notary public, or other person authorized to administer an oath. Statutory declarations are used in extrajudicial proceedings and not in court, but have similar effects to declarations made on oath”.

1.24. It is submitted that a Witness Statement contemplated by Paragraphs 6 (6) (b) 41 (3) of the First Schedule is not evidence but mere pleadings until the witness enters the witness box takes another oath and adopts it.

1.25. The Court of Appeal per Ariwoola, J.C.A (as he then was) in the case of CHUKWUMA V. NWOYE (supra) Pages 1967-1968, Paras. H-E succinctly illuminated the position of the law thus:

“What the petitioner was expected to file along with his petition was “written statements on oath of the witnesses’. What in law does the word “statement” mean? It simply means evidence, that is, ‘a verbal assertion or non-verbal conduct intended as an assertion’. In other words, it is a formal and exact presentation of facts. Therefore, a sworn statement is a statement given under oath, such as an affidavit. A witness is one who sees, knows, or vouches for something. One who gives testimony under oath or affirmation either in person or by oral or written deposition or by affidavit? See Black’s Law dictionary, 8th Edition, pages 1444 - 1445 and 1633 respectively. As to what form a written statement must take, the learned authors of Halsbury’s Laws of England, 4th Edition, Vol. 37, page 301, paragraph 955 state that ‘A written statement must be in the prescribed format and must be verified by a statement of truth’. From the above, it is clear that the written statement of witnesses envisaged and expected to accompany a petition is one to be in a prescribed format and must be verified by a statement of truth. To verify a written statement is to confirm or substantially by oath or swear to the truth of the statement”.

1.26. The Tribunal refused to follow the Court of Appeal’s decision commended to it by the Appellants in the case of DR FEMI ADEKANYE V. COMPTROLLER OF PRISON (2000) ALL FWLR (PT. 8) 1258 @ 1262 @ 1263 which is on the point that an affidavit that fails to conform strictly with the provisions of Section 13 of the Oaths Act, 1990, is competent, in so far as it substantially conforms to the provisions of Section 13 of the Oaths Act on the ground that the case was not an ELECTION PETITION.

1.27. It is submitted that the Tribunal was wrong to have refused to consider the authority of ADEKANYE’S case (supra) on the ground it was not an election Petition.

1.28. The Tribunal was bound to consider the authority because it dealt with the Court of Appeal construction and interpretation of Section 13 of the Oaths Act vis a vis an affidavit that failed to conform with the form prescribed by the Oaths Act.

1.29. The Tribunal should have leaned toward the side of substantial justice rather than crass legalism by relying and applying the authority of ADEKANYE V. COMPTROLLER OF PRISONS (2000) 12 FWLR (PT.682) 568 which accords with the current trend of legal thought that the Courts should lean more on deciding the rights of parties on the merit of cases especially since the matter is an election Petition.

1.30. The apposite question one would ask is: had the frontloading system not been in place, which we submit is meant to expedite the hearing of cases and not to shut out a party from proving his case, would the Appellant and his witnesses not have given oral testimony in proof of their case? The answer is they would have!

1.31. The Court of Appeal in ADEKANYE’S CASE (supra) in stating its reasons for deciding that an affidavit that does substantially conform to the provisions of Section 13 of the Oaths Act is competent and should be allowed reviewed several decisions of the Court of Appeal such as LONESTRAR DRILLING NIGERIA LIMITED VS TRIVENI ENGINEERING AND INDUSTRIES LIMITED AND 9 OTHERS (1999) 1 NWLR (PT. 588) 622 and NEW NIGERIAN BANK PLC VS IBW LIMITED (1998) 6 NWLR (PT.554) 449 @ 450. The Court (per Sanusi, JCA) at Pages 12-69 Paragraphs A-G illuminated the position of the Law thus:

“...on the other hand, Mr. Ngige on behalf of the Respondents cited and relied on another decision of this Court from the same Benin Division where this Court gave conflicting decision regarding the validity of an affidavit which does not embody the format of declaration contained in the First Schedule to the Oaths Act. The decision is that of Lonestrar Drilling Nigeria Limited vs. Treveni Engineering and Industries and 9 Others (1999) 1 NWLR (Pt. 588) 622 in this case this Court (Coram Achike JCA as he then was) Akintan and Mahmud Mohammed JJCA held that failure of deponent to comply with the format prescribed in the Oaths Act could render an affidavit incompetent but where there is substantial compliance with the provisions of the Oaths Act such an affidavit will not be declared incompetent merely because the exact wordings prescribed by the Act were not used. This Court went further to conclude that where a deponent uses in his motion “I depose to this affidavit in good faith” instead of using the exact words prescribed in the Oaths Act is valid and competent. Failure to use the format in the 1st Schedule is therefore held not to render the affidavit as invalid. Note that in this latter case Achike (then JCA and now JSC) gave dissenting ruling which was however not included in the report. Apparently, the decision reached by this court in these decisions are conflicting as regard the validity of the two sets of affidavits. It is trite law that the Court of Appeal is bound by its previous decisions. It can be at liberty to decide which of its previous conflicting decisions to follow. The Court of Appeal is always at liberty to refuse to follow a decision of its own which though not expressly over ruled by the Supreme Court, the Court of Appeal is of the opinion that it will not stand with the decision of the Supreme Court and or the decision is arrived at per curiam. See the cases of N. O. Akinade vs Non-Academic Staff Union of Educational and Associated Institution and Others (1999) 524, Peter vs David (1999) 4 NWLR (Pt. 603) 436. It should be noted that since in Lonestrar Drilling Nigeria Limited’s case the court was referred to its earlier decision from that decision in which two of the learned judges took part, that is to say, the case of New Nigeria Bank Plc was reached per incuriam. In any case even if it was not reached per incuriam, I am not ready to follow it. I regard the ratio in Lonestrar Drilling Nigeria Limited as more convincing and I chose to follow it. I therefore decide to act on it in this case. I refuse to accept the submission of learned counsel for the applicants that it is invalid and not in existence. It is valid and competent and I strongly hold so”.

1.32. The refusal of the Tribunal to allowed the Appellant’s witnesses to adopt their statements even after they had entered the witness box and taken another oath on a purely technical ground upon the objection of the Respondents which was calculated to ambush the Appellant is nothing but cloistered justice which should not be encouraged in a sensitive matter such as an election petition that should be decided purely on merit.

1.33. The lower Tribunal was wrong to have rejected the statements even after the witnesses had given an indication that they wanted them to be adopted as their evidence in chief. After the witnesses had taken the evidence oath and swearing to tell the truth nothing but the truth they had cured whatever defect was apparent on their statements.

1.34. Undoubtedly the Statements on Oaths of PW1 & PW2 substantially conform to the provisions of the Section 13 of the Oaths Act (supra). The Statements were valid and competent. In LONESTRAR DRILLING LTD V. TRIVENI ENGINEERING & INDUSTRIES LTD (1999) 1 N.W.L.R (588) 622 @ 629, paras, A-D, which is one of the cases cited and relied on by SANUSI JCA in ADEKANYE V. COMPTROLLER OF PRISONS (supra), Akintan, JCA (as he then was) held thus:

“in the instant case, the deponent concluded his affidavit in support of the motion by saying in paragraph 25 as follows ‘i depose to this affidavit in good faith’ instead o using the exact words prescribed in the Oaths Act ‘I...do solemnly and sincerely declare that I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act’. In as much as I believe that there is need to comply with the provisions of the Oaths, I believe that failure to use the exact words prescribed by the Act will not necessarily render an affidavit invalid. Rather, I believe that in deciding whether an affidavit should be declared invalid, it is necessary to examine the words used with a view to determine if there was in fact a substantial compliance with the requirements of the Act. In the instant case, i think that the deponent, by concluding the deposition with the words: ‘I depose to this affidavit in good faith’, he did not meet the exact words prescribed in the Act. I, however, believe that there is substantial compliance with the requirement of the Act. I therefore hold that the objection raised is not enough to warrant or justify a total rejection of the affidavit. I therefore overrule the objection”.

1.35. It is clear that if the Tribunal had taken the pains to closely and methodically scrutinize and analyze the facts and circumstances of the Obumneke’s case, it would have appreciated that the facts of the Obumneke’s case are diametrically different from the facts of this Case.

1.36. In UDEAGHA V. OMEGARA (2010) 11 NWLR (PT. 1204) 168 @ 194, the issue that the Court of Appeal was confronted and invited to resolve was: Whether the Tribunal was right in rejecting the witness statements? The facts of the case was that the Election Tribunal had rejected the witness statement or depositions of all witness statements of the petitioner on the ground that they were offensive to Order 10 Rule 3 of the Federal High Court Rules and Section 84 of the Evidence Act on the ground that they were sworn before a person duly authorized. This case OMEGARA (supra) was cited by Counsel to the Appellant but the Trial Tribunal held it was not applicable because the case was decided in civil proceedings not in an election petition. See Page 393 of the Record.

1.37. Curiously the OMEGARA case was an Election Petition case decided by the Court of Appeal not a Civil proceeding as held by the trial Tribunal.

1.38. The Court of Appeal (per Ogunwumiju, J.C.A) in OMEGARA’s case (supra) at Page 195, Paragraph B-H of the Report, illuminated thus:

“The Practice Directions made pursuant to the Electoral Act 2006 were made to facilitate speedy trials of election petition. By Paragraphs 4 (1) and (3) of the Practice Directions No. 1 of 2007 parties were to front load witness statement on oath and those witnesses were to subject themselves to cross-examination during the trial. Usually, witness adopts the statement already filed as his own when being led during examination in chief. This is to cut short the time spent leading a witness. Let us assume that the statements of witnesses in this case was not sworn to before a person duly authorized to take oaths in contravention of S. 90 of the Evidence, it is my humble view that their subsequent adoption of these written depositions after they had been sworn in open court to give evidence regularizes the depositions. Let us not forget that statements of witnesses which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are not subjected to cross examination. It is such affidavit evidence which does not meet the requirements of S. 90 of the Evidence Act that are intrinsically inadmissible. Where a witness is in court to say he/she is adopting an irregular written deposition, the implication is that the witness is reasserting on oath what is contained in the irregular deposition and as I opined earlier, such deposition on oath makes all the evidence in the written deposition admissible...”

1.39. The case of OMEGARA (SUPRA) was commended to the lower Tribunal but the Tribunal ignored it on the ground was not decided on Section 13 of the Oaths Act. See Page 634 of the record. If the Tribunal was not too mechanistic in its dispensation of justice it would have relied on the OMEGARA’s case to hold that whatever defect was apparent in the Statements had been cured by the witnesses taking another oath upon their entry into the wetness box.

1.40. It is instructive that in the case under reference the witnesses had entered the witness box, sworn to an Oath and expressed intention to adopt their statements before the objection and rejection of these statements by the Tribunal. The indication by PW2 after being sworn in is a reassertion of what is contained in the irregular deposition (assuming without conceding) and makes all the evidence contained in the deposition as admissible by the authority of OMEGARA’s case (supra). See page 632 of the record, where PW2 was recorded thus:

“Sworn on the Holy Bible and states in English Language as follows: - I ... live at 55 Obudu Road Ikom, 4-Corners. Iam a business man. I deposed to a Statement on oath on the 17th May, 2011 and I want to adopt same as my evidence in this Petition”. See Page 394 of the record.

1.41. Undoubtedly these statements were properly and regularly sworn before the Secretary of the Tribunal as Commissioner for Oaths which means that there is a presumption of regularity. See UDEAGHA V. OMEGARA (supra) 195-196, where the Court held thus: “In any event, I agree with the argument of learned appellants Counsel that the questions under cross examination were targeted at where the witnesses made their depositions and not before whom they were sworn. The cross examination did not elicit the information that the witnesses never swore before the commissioner for oaths. The compelling factor in this matter is that all the statements showed that they were signed before the Secretary as commissioner for Oaths...The Statements of PW1, PW3, PW4 and PW5 are admissible and the evidence also...”

1.42. We agree that Tribunal was bound to adhere to the age long tradition of applying judicial precedents laid down by a court higher than it in the hierarchy of our judicial system, which is the fountain of our legal system for the purpose of certainty and consistency. However it is submitted that the doctrine of stares decisis applies only if the circumstances and issues decided in the previous case are the same or similar to those in the later case wherein it is commended to apply the doctrine. The Obumneke’s case (supra) was decided the way it was because the Appellant failed to draw the attention of the Court to the fact that a Statement on Oath is not a statutory declaration and the format prescribed for the evidence Oath was not the format for statutory declarations (upon which the Court hinged its decision on in the Obumneke’s case). See Iwuno v. Dieli (1999) 5 NWLR (Pt. 149) 126 at 134-135.

1.43. The Tribunal was also wrong and in error to have taken the objection at that stage it took it in view of the provisions of Paragraph 12 (5) of the First Schedule which provides that a Respondent who has an objection to the hearing of the Petition shall file his reply and state the objection therein, and the objection shall be heard along side with the substantive Petition.

1.44. The objection was an ambush contrived too scuttles the case but masked as an ‘objection on a point of law’ by the Respondents who were obviously desperate to castrate the case of the Appellants after the Court of Appeal had allowed a previous appeal filed by the Appellant against the order striking out the Petition.

1.45. The Tribunal denied the Appellants a fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria by rejecting the statements on oaths of the Appellants.

1.46. The denial of the Appellants the opportunity of adopting their statements after they had entered the witness box and taken another oath to speak the truth (on a purely technical ground) was undeniably the height of injustice that led to a serious miscarriage of justice.

1.47. In the light of the above, we respectfully invite the Court to set aside the rulings of the Tribunal rejecting the adoption of the statements of the witnesses of the Appellants and substituting with an order that these statements be adopted as the evidence in chief of the PW1 & PW2.



ISSUES NOS. 2, 3, 4 & 5 OF THE ISSUES FOR DETERMINATION SHALL BE ARGUED TOGETHER

Issues Nos. 2, 3, 4 & 5 of the Appellants issues for determination are reproduced thus:



2. Was the refusal of the Tribunal to evaluate documentary evidence tendered by both the Appellants and the 1st Respondent concerning the documents used by the 2nd Respondent to conduct the election on the ground of absence of oral evidence correct? And if the answer to the above is in the affirmative, did such refusal not occasion a miscarriage of justice on the Appellants?

3. Was the Tribunal was correct when it held that there was no evidence to prove that the election was vitiated by corrupt practices or non compliance with the provisions of the Electoral Act, 2010 (as amended) and that there was no evidence before it relating the documents or bundle of documents to specific infraction of the Electoral Act (supra)?

4. Was the Tribunal correct to have discountenanced pages 11-13 of the Appellants Written Address which was based on Counsel’s analyses of documentary evidence tendered and admitted by the Tribunal, and if the answer is in the affirmative, did the Tribunal’s action/inaction not occasioned a miscarriage of justice on the Appellants?

5. Was the Tribunal was bound to consider, resolve and pronounce on all issues legitimately raised and canvassed by the Appellants and if the answer is in the affirmative did the failure of the Tribunal to do that not occasion a miscarriage of justice on the Appellants?



ARGUMENTS OF ISSUES NOS. 2, 3, 4 & 5 OF THE ISSUES FOR DETERMINATION

2.1 During the course of the proceedings before the trial Tribunal the Appellant tendered the following documents through their Counsel from the Bar by consent of the Respondents thus:

(a) INEC’s letter dated 10th January, 2011 - Exhibit G

(b) The Guardian of Sunday January 16 2011 - Exhibit H

(c) The Nation on Sunday, February 2011 - Exhibit I

(d) The Nigeria Police Medical Form - Exhibit J. See Page 387 of the record.

2.2 On the other hand, the 2nd Respondent tendered through its Counsel from Bar with the consent of all other parties, the following documents thus:

(a) CTC of the Judgment of the Federal High Court in Suit No. FHC/CA/CS/17/2011 - Liyel Imoke & 37 ors vs. INEC delivered on 24th March, 2011 - Exhibit A.

(b) 78 EC8A(i) – Exhibits B - B7

(c) 8 Form EC8B(i) - Exhibits C - C27

(d) 1 Form EC8C(i) - Exhibit D

(e) I Form EC8E (i) - Exhibit E

(f) Certificate of Return - Exhibit F.

See Page 384 of the record.

2.3 Despite the fact that these documents were tendered from the Bar with the consent of all the parties the trial Tribunal refused to examine and analyse them in its judgment. The trial Tribunal gave the following reasons for its refusal to examine, analyse and evaluate the documents thus: “It has been held that a party relying on documents as part of his case must relate each of such document to that of the case in respect of which it is being tendered. See Terab vs. Lawan (1999) 3 NWLR (Pt. 231) 569 (2) Awuse vs. Odili (2005) 16 NWLR (Pt. 952) P. 414. Since there is no oral evidence before us, the Petitioners have failed to prove that there were corrupt practices or non compliance with the provisions of the Electoral Act. Also, there is no evidence before us relating documents or bundle of documents to specific infractions of the Electoral Act. It is not our duty to untie the bundle of documents and link same to the allegations” See Page 485 of the record.

2.4 The documents were documents used by the 2nd Respondent to conduct the disputed election. The documents were copiously pleaded by both the Appellants and the Respondents. The documents were admitted by consent of the Parties.

2.5 The documents were crucial and relevant to the determination of the question whether the election was conducted in accordance with the provisions of the provisions of the Electoral Act (supra).

2.6 However the Tribunal in its Judgment bluntly refused to evaluate the documents on the ground that since its had refused the allow the witnesses called by the Appellant to adopt their statements there was no oral evidence to use to assess the documentary evidence called by tendered by the Appellants.

2.7 The Appellants in their Final Written Address had done an analysis of the documentary evidence but the Tribunal totally ignored it and refused to consider and pronounce on it.

2.8 The failure of the Tribunal to evaluate documents tendered by the Appellants occasioned a miscarriage of justice on the Appellants.

2.9 The failure of the Tribunal to evaluate the documents amounted to denial of fair hearing on the Appellants.

2.10 The 2nd Respondent tendered Form EC8A (i) for 78 Polling Units in Ikom One State Constituency. These Exhibits B-B77 on their face where not stamped and signed by the Presiding Officers of these Polling Units.

2.11 It is further submitted that the failure to stamp, sign and date Form C8A (i) and Form EC 8B(i) in 77 out of the 80 Polling Units that made up the Ikom State 1 Constituency constitute a violation of the Manual for Election Officials, 2011. See Paragraph 5.4, Step 8 of the Manual for Election Officials, 2011.

2.12 It is clear that if the Tribunal did not abdicate from its duty to examine analyse and evaluate Exhibit B - B77 and EXHIBIT C - C7) which were not stamped, signed and dated it would have voided the election.

2.13 It follows that if the Tribunal had not shrunk from its responsibility it would have voided the result from the Polling Units that were not signed, stamped and certified only three Polling Units would have been left. It goes without saying that the 1st Respondent cannot be declared the winner of the election with results from three Polling Units out of the 80 Polling Units that make up the Ikom One State Constituency.

2.14 There is no evidence more telling, pointed and convincing than documentary evidence. This is because documents do not ‘speak’. Documents do not tell lies. Documents do not distort facts.

2.15 It is submitted that Exhibits B - B77 and EXHIBITS C - C7 are direct and compelling. These Exhibits have conclusively shown that the election held on the 26th April, 2010, was a complete and total charade and gross infraction of the provisions of the Electoral Act (supra).

2.16 It is submitted that Exhibit F tendered by the 1st Respondent to show that that the 1st Respondent was duly returned goes to no issue in view of the fact that only three results were signed out of the 80 Polling Units in the Constituency. Exhibit A cannot stand in view of the fact that the foundation for the preparation of Exhibit A has been shown to be faulty and indeed collapsed.

2.17 The same thing applies to Exhibits C - C7; D, E and F respectively. This is because you cannot put something on nothing and expect it to stand; it will collapse like a park of cards. See Lord Denning in UAC vs. MACFOY (1962)1 AC and SKEN CONSULT & Anor. vs. Ukey (1981) 1 SC 4 Reprint Edition.

2.18 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellants and against of the fact that documents (EXHIBITS B - B77 and EXHIBIT C - C7) tendered by the 2nd Respondent have shown conclusively that the election was conducted in compliance with the provisions of the Electoral Act (supra).

2.19 The none execution of Forms EC8A(i) and Forms EC8B (i) by the 3rd Respondent in accordance with the Form prescribed by Section 63 (1) & (2) of the Electoral Act is devastating to the claim of the Respondents that the election was conducted in accordance with the provisions of the Electoral Act.

2.20 It is submitted that where a statute has prescribed a mode of doing a thing and Forms prescribed for the doing of that thing in the absence of the Forms so prescribed, no oral evidence or any other forms can be a substitute to that which has been prescribed. See Coop Commercial Bank Nig. Ltd. V. A.G. Anambra (1992) 8 NWLR (Pt. 261) 528 at 556.

2.21 It is submitted that Form EC8A (i) is the foundation or bedrock for the collation of results in subsequent Forms and therefore cannot be ignored by any election Tribunal. See KRESS NJIOKWUEMENI v. VICTOR OCHEI (2004) 15 NWLR (PT. 895) 196 @ 235. See NWOBODO v. ONOH (1984) 1 SCNLR 1.

2.22 It is submitted that there are two types of evidence, oral and documentary. See Section 105 of the Evidence Act, 2011. Once a document is received in evidence, and is so marked, it becomes evidence before the Court or Tribunal and the Court or Tribunal has the duty to evaluate the probative value of every piece of evidence tendered before it. See AWUSE v. ODILI (2005) 16 NWLR (Pt. 952) 416. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (2008) 3 LRECN 649 @ 696.

2.23 The position of the law is that documentary evidence is more reliable than oral evidence. See AKINBISADE v. STATE (2006) 17 NWLR (Pt. 984) 47; See AIKI v. MOWN (2006) 9 NWLR (Pt. 984) 47. See INEC V. COMRADE ADAMS ALIYU OSHIOMOLE (supra) 696.

2.24 The Tribunal was therefore totally wrong to have refused to evaluate the documentary evidence tendered by the Appellants on the ground that there was no oral evidence called by the Appellants and that they were dumped on the Tribunal.

2.25 The documents were never dumped on the Tribunal but were admitted after consent of the Parties. At the point of their tendering from the Bar Counsel had explained the essence of the documents. The documents were identified and known to the Tribunal. It is instructive that the procedure of front loading which has been introduced into election litigation has obviated the essence of a witness explaining the purport of a document tendered through him. See Paragraph 41 (3) of the First Schedule to the Electoral Act (supra).

2.26 Paragraph 41 (3) of the First Schedule to the Electoral Act provides that ‘there shall be no oral evidence of a witness during his evidence in chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition’.

2.27 It is clear that by virtue of Paragraph 41 (3) of the First Schedule to the Electoral Act, it is no longer feasible for a witness to enter the witness box and be made to explain the essence of documentary evidence tendered through him.

2.28 In any case, by Paragraph 41 (2) of the First Schedule to the Electoral Act documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where he is not represented by a legal practitioner.

2.29 The documents which the trial Tribunal refused to examine and evaluate were tendered by the 2nd Respondents and the Appellants with the consent of the Appellants and the Respondents.

2.30 It is instructive that an election petition is not the same as ordinary civil proceedings, it is a special proceedings because of the peculiar nature of nature of elections which by reason of their importance to the well being of a democratic society are regarded with an aura that places them over and above the normal to normal transactions between individuals which gives rise to ordinary or general claims in court. See EMEJE V. POSITIVE (supra) 1076, paras. A-B.

2.31 In this regard, it was wrong for the trial Tribunal to refuse to examine documentary evidence tendered by consent of parties on the pretext that they were dumped or that there was no evidence which to use to assess them especially when these documents were certified public documents that were used by the 3rd Respondent to conduct the disputed election!

2.32 The Tribunal had wrongly and in grave error disallowed witnesses called by the Appellants from adopting their deposition on the ground on that their depositions on oath were not in the format prescribed by the First Schedule to the Oaths Act (supra). How can the trial Tribunal refuse to allow witnesses called by the Appellants to adopt their statements on oaths and then turn round to derisively hold that there was no evidence called by the Appellants with which it could have used as the hangar to assess the documentary evidence tendered by parties? What kind of justice would shut out a party from calling evidence at the twilight of its case on a purely technical ground and then hold it against the party it had shut out? Is that kind of procedure in tune with the dictates of fair hearing?

2.33 It is submitted that where the Tribunal is in possession of the results, Exhibits B - B77, it is duty bound to look at the results. See NIGIGE V. OBI (2006) 14 NWLR (PT. 999) 161. See INEC V. OSHIOMOLE (2008) 3 LRCN 649 @ 660-661.

2.34 The Tribunal had a constitutional duty to painstakingly and objectively consider the case put forward by the Appellants before it. The Tribunal as a Court of First Instance was duty bound to consider and pronounce everything put forward by the Appellants and where the Tribunal (as in this case deliberately refused to consider the case put forward by the Appellants, this Honourable Court is conferred with express powers by Section 16 of the Court of Appeal Act, 2004, to intervene and do what the trial Tribunal ought to have done or failed to do.

2.35 A glaring example of the deliberate refusal of the trial Tribunal to consider the case put forward by the Appellants is when the trial Tribunal unconventional descended into the arena and refused or ignored pages 11-30 of the Final Written Address of the Appellants on the alleged ground that it contained an analyse of Exhibits B - B77 carried out by Counsel to the Appellants.

2.36 The law is settled that it is of paramount importance that the trial Court or Tribunal renders a decision on every issue properly raised and canvassed before it by parties. This is so in order to avoid multiplicity of cases and that litigation on a particular matter may come to an end. As long as there is a right of appeal against its decision, the trial Tribunal/Court or even an Appellate Court ought not to shy away from determining a material issue properly raised and canvassed before it on the pretext or assumption based on its own judgment that the matter no longer arises for determination. The Appellate Court cannot determine and pronounce upon any issue skirted for whatever reason by the court from where the appeal emanates. In such a case where the parties presented their cases, but the Court failed in its duty to make pronouncement on any issue relevant to the case, the Court of Appeal can deal with the issue and resolve same as if it were sitting in place of the trial Tribunal. See ACTION CONGRESS V. JANG (2009) ALL FWLR (PT. 467) 185 @ 186, PARAS. E-B. See EMEJE V. POSITIVE (2009) ALL FWLR (PT. 452) 1056 @ 1063.

2.37 We respectfully invite this Honourable Court to soberly and objectively consider the submission of the Appellants at Pages 11-30 of their Final Written Address found at Pages 415 to 451 of the Record. The Tribunal concluded thus “It is our respectful view that Petitioners’ Counsel cannot use his address to prop up his clients’ case since there is no evidence on record to make this possible. In effect, a page 11-30 of the Petitioners’ Counsel’s address is hereby discountenanced”. See Page 485 of the record.

2.38 It is clear that Counsel’s address was based on an analysis by Counsel of documentary evidence that was tendered and admitted by the consent of all the parties in the matter.

2.39 In INEC V. OSHIOMOLE (supra) 713, it was held that charts prepared by Counsel based on his analyses of documentary evidence that had been tendered in Court can be looked into by the Court.

2.40 In the Oshiomole’s case (supra), Abdullahi, PCA at Page 713-714, paras. A-A, illuminated the position of the Law thus: “This is just an example of how the Tribunal arrived at its decision to deduct invalid votes from the valid votes cast at the election. Its decision was clearly not based on the Charts prepared by the Petitioner’s counsel. Counsel assisted the Tribunal and parties by setting out the figures in the Charts and there is nothing new in this. It has been done before and accepted. In Ngige v. Obi (supra) where the Appellants also alleged “breach of fair hearing” it was the Tribunal that drew up a Chart like this one, when it was writing its Judgment and attached it as an Appendix to the Judgment. This Court however held as follows in that case, Ngige v. Obi (supra); -“This Chart was made from the Exhibits, there was extensive cross-examination in open Court, in respect of all the Exhibits. Learned Counsel for all the parties also addressed the Tribunal in respect of all the Exhibits. It is my considered opinion that Appendix 4 was a product of public demonstration and testing in open Court by witnesses and their cross examination. It was an evaluation of what was contested, demonstrated and tested in open Court. It cannot be regarded as an investigation in the Chambers of the Tribunal. The Tribunal was extensively on each and every exhibit tendered. The Chart is the weight attached to the said Exhibits and scores contained therein arising from the evidence preferred and demonstrated in open Court at the Tribunal. The Tribunal was right to have done the arithmetical calculation in Appendix 4. The argument that the Appellant was denied the opportunity to comment or react to Appendix 4 is misconceived because Appendix 4 constitutes part of the judgment of the Tribunal. The Tribunal was in possession of all the results in the Forms EC8A (I) it admitted. Where the Tribunal is in possession of all the results it is duty bound to collate the results where there is proof that there was inflation where non-existent votes and/or wrong computation”. In this case, which is nearly on all fours with the case of Ngige v. Obi, save for the fact that it is the Petitioners’ Counsel that drew up the Charts and not the Tribunal, the kernel of the principles applied remain the same.”

2.41 The Tribunal was bound to consider the analyses made by Counsel on documentary evidence which it has received. This documentary evidence was tendered from the Bar through Counsel by consent of all the parties.

2.42 The Tribunal’s failure to consider and pronounce on the analyses of exhibits tendered and admitted by the Tribunal, constitute an infringement on the right of fair hearing of the Appellants. We humbly invite this Honourable Court to consider and pronounce on the issues raised and canvassed by the Appellants in Pages 11-30 of his Final Written Address.

2.43 In the light of the above, we respectfully invite the Court to resolve Issues 2, 3, 4 & 5 of the Appellants’ Issue for determination in favour of the Appellants.



ISSUE NO. 6

Was the Trial Tribunal correct when it held that the issue of the qualification of the 1st Respondent to contest the election raised and pleaded in Ground Two (2) of the Petition is a Pre-election matter which it did not have jurisdiction to hear and determine?



ARGUMENT

3.1. One of the grounds on which the Petition was presented was that the 1st Respondent was not qualified to contest the election. See Ground one of the Petition, Paragraphs 3.1 - 3.6, Pages 3 - 4 of the Petition at Pages 2 & 3 of the record.

3.2 It is glaring from the documentary evidence (Exhibits G, H & I) before the Tribunal that the 1st Respondent’s candidacy to contest the election was never accepted by the 3rd Respondent because of the failure of the 2nd Respondent to conduct its Primary Election in line with the provisions of the Electoral Act. The 3rd Respondent, whose statutory responsibility it was to accept the candidacy of the 1st Respondent, refused to accept the nomination of the 1st Respondent during the period of nomination of candidates by Political Parties.

3.3 There is documentary evidence that the 3rd Respondent refused to accept candidates presented by the 2nd Respondent in the run up to the election. See Exhibits G, H & 1. See Page 387 of the record. In Exhibit G, the 3rd Respondent had unequivocally rejected the List of Candidates from the 2nd Respondent forwarded to it on the ground that valid Ward Congresses were not conducted. See Page 49 of the record.

3.4 The trial Tribunal refused to look into these exhibits even though they were tendered and admitted before the Tribunal. This is obvious from a cursory reading of the Judgment when the Tribunal failed to mention that these exhibits were among the exhibits tendered and admitted by it. See Pages 4 & 5 of the Judgment found at Pages 475 & 476 of the record.

3.5 The pertinent questions are: If the 1st Respondent’s candidacy under the platform of the 2nd Respondent was not accepted, how did the 1st Respondent contest the election? Who cleared the 1st Respondent to contest the election? Under which platform did the 1st Respondent contest the election?

3.6 How did the 1st Respondent get a Certificate of Return issued to him by the 3rd Respondent if his candidacy was not accepted by the 3rd Respondent during the process of the submission of particulars of candidates by Political Parties?

3.7 It is submitted that the position taken by the Respondents that the issue of the qualification of the 1st Respondent to contest the election is a Pre-election matter which it had no jurisdiction to determine is untenable.

3.8 It is submitted that Appellants as candidate and Political Party respectively that took part or participated in the election were right to ground their Petition under Section 138 (1) (a) of the Electoral Act to question the right of the 1st Respondent to contest the election in view of the rejection of the List of Candidates from the 2nd Respondent by the 3rd Respondent nominated to contest the election.

3.9 It is submitted that at the time of the rejection of the List of Candidates from the 2nd Respondent by the 3rd Respondent the right of action of the Appellants to challenge the 1st Respondent had not crystallized.

3.10 It is submitted that in the circumstances of this case, the cause of action accrued after the election (when the Appellants found that the name of the Political Party that sponsored the 1st Respondent was in the ballot papers) despite the previous rejection of candidates from the 2nd Respondent by the 3rd Respondent before the election.

3.11 The cause of action crystallized when the 1st Respondent was allowed to contest the election, by which time the qualification of the 1st Respondent to contest had become a Post-election matter which the Tribunal is vested with jurisdiction to determine. See AMAECHI V. INEC (2007) LRECN 182 @ 201, paras. C-D.

3.12 It is therefore submitted that the determinant of whether or not a matter is to be categorized as a pre or post election matter is when the cause of action accrued. Where the cause of action accrued in the period before election it is a pre-election mater but where it accrued after the election it is a post election matter.

3.13 It is submitted that an election is a process that does not start or end with voting on poll day. This is evident in the fact that the Electoral Act contemplates that an election is a process that starts with the announcement or issuance of notice for the date of the election by the Independent National Electoral Commission, the Defendant and culminates in the holding of election and announcement or declaration of the winner. See Section 25 (1) and 26 – 77 of the Electoral Act (supra).

3.14 In PPA vs. SARAKI (supra) 179, paras. D-G, Sankey, JCA illuminated the position of the Law thus:

“It is my view that election, being a process, cannot be strait-jacketed into confining to include only the polls which is the actual casting of votes for the candidates. It necessarily includes such preliminary matters as sponsoring or nominating candidates for the election which processes precede the day of the poll. The importance of these preliminary matters in the process of election is not farfetched. For instance, by section 39 of the Electoral Act, in the event that there are no valid nominations at the close of the period laid down for nominations, the Electoral Commission shall extend the time for nomination and fix a new date for the election. What this therefore means is that there can be no election without nominations. By the same token a political party which participated in the nomination of candidates has, by so doing participated in the process of selecting persons to occupy an elective office which is the actual definition of an election”.

3.15 It is submitted therefore that the process of the forwarding of the names of candidates from a Political Party that are qualify to contest an election or filling of candidates by Political Parties is an integral part of the process of an election as contemplated by Part IV of the Electoral Act (supra). It would also include an issue involving whether or not a candidate that contested election was qualified to contest such election or not.

3.16 It is submitted that any matter that falls under Part IV of the Electoral Act is an election matter. Election does not mean only what took place on the day of Polling.

3.17 It is submitted that the issue of the qualification of the 1st Respondent to contest the election is a matter within the jurisdiction of the Election Tribunal.

3.18 It is pertinent to reproduce Section 138 (1) (a) of the Electoral Act, 2010 (as amended) thus:

“ An election may be questioned on any of the following grounds, that is to say: (a) that a person whose election is questioned was, at the time of 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 this 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.”

3.19 It is as clear as the crystal that ground one of the Petitions is hinged on the non-qualification of the 1st Respondent to contest. The 1st Respondent missed the point when he argued stoutly that ground one of the Petition is questioning the nomination of the 1st Respondent.

3.20 It is submitted that an election Tribunal has original jurisdiction to entertain a petition and determine the question whether a candidate is qualified or not. No other court has such original jurisdiction to so do. See OGBORU V. IBORI (2004) 7 NWLR (PT. 871) 228.

3.21 A proper reading and interpretation of ground one of the Petition, shows that the Appellants are questioning the right of the 1st Respondent to contest the election. The Appellants were also questioning whether or not the 1st Respondent has met the conditions precedent that confers on him the right to contest the election.

3.22 The position taken by the lower Tribunal that the issue non-qualification of a candidate to contest an election under Section 138 (1) (a) of the Electoral Act is interwoven with those spelt out under Section 108 of the Constitution of the Federal Republic of Nigeria, 1999 is not correct.

3.23 The Petitioners have averred to the fact that the 3rd Respondent on the closure of nomination of candidates had declared that the 2nd Respondent did not comply with the provisions of the Electoral Act which makes it mandatory that a Primary Election is conducted for candidates of a political party desirous of presenting candidates to contest an election. See Paragraph 3.2, 3.3, 3.4, 3.5 & 3.6 of the Petition.

3.24 It is the position of the Petitioners as averred in the Petition in Ground One of the Petition that the 1st Respondent ought not have contested the election in view of the fact that the 3rd Respondent had rejected his candidacy because the 2nd Respondent’s presentation of its candidates was rejected, for its failure to adhere to the relevant provisions of the Electoral Act.

3.25 The germane question is, if the candidacy of the 1st Respondent was not approved by the 3rd Respondent that is statutorily vested with the responsibility of approving the nomination of candidates presented by Political Parties to contest election because of the flawed nature of the nomination of the 1st Respondent; how did the 1st Respondent cross this hurdle to contest the election? See Section 34 of the Electoral Act.

3.26 The Appellants have pleaded that the 1st Respondent was not qualified to contest the election because the 3rd Respondent had rejected the list of candidates submitted by the 2nd Respondent to it on the ground that the 2nd Respondent had contravened the provision of the Electoral Act, 2010, that makes it mandatory for Political Parties to conduct a democratic Primary Election to select its candidates to contest the General Election. It is now a settled principle of electoral jurisprudence in Nigeria that Political Parties are the only vehicles on which a candidate can contest an election.

3.27 It is therefore curious how the 1st Respondent contested the election if his right to contest the election was not in the first place recognised by the 3rd Respondent in the face of Exhibit G. The Appellants further tendered a Certified True Copy of a letter dated 10th February, 2011, from the Secretary of the 2nd Respondent to the Independent National Electoral Commission titled “SUBMISSION OF LISTS OF CANDIDATES FOR THE GENERAL ELECTIONS FOR CROSS RIVER STATE” but the Tribunal refused to indicate in its record that such a document was tendered. The document can be seen in Page 49 of the record. This letter was even alluded to in Page 3 of the Final Written Address of the 2nd Respondent found at Page 458 of the record.

3.28 It is clear from the content of Exhibit A which is a Judgment of the Federal High Court that the List of Candidates’ Process of the 1st Respondent was riddled with crisis and troubled otherwise there would have been no need of the 1st Respondent suing? But Exhibit A is unhelpful to the case of the 1st Respondent because the 2nd Respondent (which should have been his sponsor or nominator) was not among the parties that went to Court and is therefore not concerned with the case and cannot take benefit under it.

3.29 It is submitted that if the 3rd Respondent failed to accept the candidacy of the 1st Respondent, but somehow the 1st Respondent was able to manoeuvre his way to contest the election, then the Petitioners (Appellants) who are vested with the right to present an election Petition can raise as a ground in their Petition the right or qualification of the 1st Respondent to contest the election.

3.30 It is well settled that one of the grounds on which an election Petition can be presented under Section 138 (1) (a) of the Electoral Act is that the candidate was not qualified to contest the election.

3.31 If the 1st Respondent was issued with a certificate of return and declared the winner of the election, the Petitioners who are vested with the right to present an election petition can challenge the return of the 1st Respondent and such a challenge cannot by any stretch of the imagination be said to be a pre-election matter.

3.32 How was it possible for the name of the 1st Respondent to be included in the ballot paper? How did the name of the 1st Respondent crop up at the election when the 3rd Respondent had previously rejected the List of Candidates forwarded to the 3rd Respondent by the 2nd Respondent? How can this possibly be a pre-election matter when the Appellants were unaware that the name of the 1st Respondent would surreptitiously be included in the List of Candidates for the election after the 3rd Respondent had failed to publish the name of the 1st Respondent at the time of the publication of the Lists of Candidates?

3.33 It is at the point of the publication of the Lists of Candidates as required by Section 31 of the Electoral Act that the Appellants would have known that the List of Candidates from the 2nd Respondent were included but this was not done. See Section 31 (3) of the Electoral Act which provides thus: “The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election”.

3.34 It is clear at this point when the 3rd Respondent was obligated to publish the Lists of the Particulars of Candidates that were qualified to contest the election, the name of the 1st Respondent was not there. If the name of the 1st Respondent was not in the list, how could anybody have expected the Appellants to sue? It therefore means that the cause of action would only accrue after the election when it was found that a candidate whose name was not included in the List of Candidates cleared to contest the election was found to be among the candidates that contested the election. It cannot therefore be said to be pre-election matter.

3.35 The position taken by the trial Tribunal that the issue of qualification envisaged by Section 138 (1) (a) of the Electoral Act is only concerned or connected or related to the issue of qualification under Sections 106 and 107 of the Constitution of the Federal Republic of Nigeria is not correct. The Tribunal erroneously held thus:

“with respect to learned counsel, what that Section 138 (a) above envisages is the challenge of a candidate to contest an election based on non-fulfilment of constitutional provision set out in Sections 106 & 107 of the 1999 Constitution of Nigeria (as amended)” . See Page 9 of the Judgment found at Page 480 of the record.

3.36 It is submitted that the reasoning and conclusion of the trial Tribunal has shown above with due respect is not correct. There is nothing in Section 138 (a) of the Electoral Act to infer that only matters spelt out in Sections 106 & 107 of the Constitution are contemplated.

3.37 The trial Tribunal cannot read into the Section what was not intended. If the legislature intended that only matters envisaged under Sections 106 & 107 of the Constitution can be founded under Section 138 (1) (a) of the Electoral Act it would have clearly stated so.

3.38 For instance, if somebody that was not a candidate whose name was forwarded to the Independent National Electoral Commission by error manages to contest an election, how can his right to contest the election be challenged if it was found that he was not qualified to contest the election because his name was never forwarded to the Commission in the first place?

3.39 It is well settled that it is a Political Party that contests the election not necessarily the candidate sponsored by that Political party.

3.40 It is submitted that Exhibit A tendered by the 1st Respondent goes to no issue. Exhibit A cannot be evidence that the 1st Respondent contested the election or was a candidate in the said election or that the 3rd Respondent accepted the candidacy of the 1st Respondent after it had previously rejected the candidates presented by the 2nd Respondent.

3.41 A cursory reading of Exhibit A shows that the Judgment did not concern the 2nd Respondent which is the only statutorily recognised body to present its Lists of Candidates intending to contest the General Elections to 3rd Respondent.

3.42 In the light of the above argument, we urge the Court to resolve this issue in favour of the Appellants.

ISSUE NO. 7

Whether the Tribunal was correct when it held that the Respondents had not abandoned their pleadings because the Appellants are bound to succeed on the strength of their case?



ARGUMENT

4.1 The Respondents did not call evidence at the close of the case of the Appellants.

4.2 The 2nd Respondent tendered documents from the Bar which were admitted by the trial Tribunal. The 1st and 3rd Respondents did not tender any documentary evidence.

4.3 In the Final Written Address the Appellants had submitted that since the Respondents did not call evidence they were deemed to have abandoned their pleadings. See Pages 30-33 of the Written Address of the Appellants before the trial Tribunal which is found at Pages 451-454 of the record.

4.4 However, the Tribunal held that the fact that the Respondents did not call evidence did not mean that the Appellants are exculpated from proving their case on the strength of their case.

4.5 The position of the Law is well settled that where a party fails to call evidence in support of its pleadings, it is deemed that it has abandoned that portion of its pleadings. See AGAGU V. MIMIKO (2009) 7 NWLR (PT. 114) 342 @ 370; See also LANTO V. WOWO (1999) 4 LRECN 360, para. A; ADENEKAN V. AJAYI (1998) LRECN 142, para. A.

4.6 The consequence of the failure of the Respondents to call evidence is that they have abandoned their pleadings and admitted the case of the Appellants. Consequently, they are deemed to have admitted the facts pleaded by the Petitioner and the evidence led to support the pleadings thereby making the Petitioner’s case unchallenged. See NA’UMBA VS NA’UMBA (2008) 31 LRECN 278 @ 287, Okoro JCA stated:



“It is the practice and by the Rules of litigation, parties are bound by their pleadings. Pleadings which are not supported by evidence whatsoever, go to no issue. Again, where there is no evidence led in support of any pleadings, then the pleading is deemed abandoned.”



See also EGBUNIKE VS ACB (supra); BALOGUN VS EOCB NIG. LTD. (2007) 5 NWLR (PT 1028) 584 @ 602.

4.7 The implication of the election by the Respondents not to call evidence is that they have abandoned their pleadings and conceded to the case of the Appellants. In other words, the implication of the failure by the Respondents to call evidence is that there is absolutely no evidence to be placed on the mythical side of the scale of balance of the Respondents by the Tribunal to enable it evaluate the evidence received at trial and decide on which side it preponderates.

4.8 It is submitted that another grave implication of the failure of the Respondents to call evidence (but resting their cases on that of the Appellants) is that the Appellants who are ordinarily required to prove their cases by preponderance of evidence are discharged from that burden and foisted with the burden of minimal proof. In this wise, the Appellants are required to prove their case by deduction of minimal evidence. See AGAGU VS MIMIKO (2009) 7 NWLR (PT 1140) 342 @ 386, para F-G:

“In such circumstance, the law does not require proof of impliedly admitted facts and where proof is even required, only a minimal evidence would be necessary to ground the claim. See also BALOGUN VS. UBA (1992) 6 NWLR (PT 247) 366 and EGBUNIKE VS. ACB (1995) 2 NWLR (PT.375) 34.”

4.9 It must noted that although election Petitions are in a class of their own or sui generis, the general rules or principles of pleadings which apply to ordinary civil actions are also applicable with necessary modification mutatis mutandis but with equal force especially as regard the filing of Petitions and Reply thereto. See Ogbeide v. Osula (2004) 12 NWLR (Pt. 886) 86 at 94.

4.10 However, in a case where the other side fails to call evidence available for the Court to put on the proverbial balance of scale, the Plaintiff is only required to prove his case by production of minimal evidence.

4.11 It is clear that if the trial Tribunal had examine and evaluate Exhibits B - B77 which incidentally was tendered by the 2nd Respondent it would not have come to the conclusion that that the Appellants even needed to have proved their case by preponderance of evidence. Exhibits B - B77 has conclusively proved that the election was not conducted in accordance with the requirements of the Electoral Act. Exhibits B - B77 on the face of it has established gross violation of Section 63 subsections 1 & 2 of the Electoral Act because they were not stamped or signed by the Presiding Officers. The Appellants had carried out an analysis of Exhibits B-B77 in Pages 11-30 of their Final Written Address but the Tribunal discountenanced it. See pages 450 of the records.

4.12 We respectfully invite this Court to examine and evaluate Exhibits B - B77 and come to the conclusion which the Tribunal would have arrived at. See JASKE V. MAGAJI (2008) 3 LRECN 113 @ 146, PARAS. B-C.

4.13 If the trial Tribunal did not reject the evidence of PW1 & PW2 on the ground that they were contrary to the format prescribed in the First Schedule to the Oaths Act, it would not have come to the conclusion that that the Appellants did not succeed on the strength of their case. The Tribunal had erroneously held that since the Appellants did not produce oral evidence that there was no evidence in support of the Petition. We therefore invite the Court to assume the jurisdiction of the Tribunal and admit the Statements on Oath of PW1 and PW 2 and use them to assess and Exhibits B - B77.

4.14 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellants and hold that the Appellants did not need to prove the Petition by preponderance of evidence in view of the fact that the Respondents abandoned their pleadings.



ISSUE NO. 8

Whether the Tribunal was correct when it held that there are a plethora of authorities on the presumption of correctness of returns produced by Returning Officers in view of the fact that there was abundance of documentary evidence before it which it refused to examine that the election was vitiated by substantial non-compliance with the provisions of the Electoral Act?



ARGUMENT

5.1 It is correct statement of the law that there is presumption that the return of a Returning Officer in an election is genuine and regular until the contrary is proved.

5.2 The Tribunal was correct to that extent that there is presumption in favour of the correctness of results declared by an Electoral Commission. However the presumption in favour of the return of a Returning Officer is not sacrosanct or unimpeachable.

5.3 The pertinent question is: Can it be rightly held that the return of the returning officer in the circumstances of this case are correct in view the apparent failure of the Presiding Officers of 77 Polling Units in the Constituency to execute results from their Poling Units in the manner prescribed by Section 63 (1) & (2) of the Electoral Act?

5.4 It is clear that if the Tribunal had examined, analysed and evaluated Exhibits B - B77 it would have seen that Forms EC8A (i) for these Polling Units were not executed in accordance with the intention of the legislature of Section 63 subsections 1 & 2 of the Electoral Act.

5.5 It is clear that Exhibits B-B77 has rebutted the presumption that the return of the returning officer of the election was correct.

5.6 It is submitted that where a statute has prescribed a mode of doing a thing and forms prescribed for the doing of that thing, in the absence of the forms so prescribed, no oral evidence or any other forms can be a substitute to that which has been prescribed. See Coop Commercial Bank Nig. Ltd. V. A.G. Anambra (1992) 8 NWLR (Pt. 261) 528 at 556.

5.7 If the Tribunal had not unreasonably rejected the evidence of PW1 & PW2 it would not have come to the conclusion that the return of the Returning Officer was correct.

5.8 In the light of the above, we respectfully invite the Court to resolve this issue in favour of the Appellant.



CONCLUSION

In the reliefs sought by the Appellant in the Notice of Appeal the Appellant has invited this Court to invoke the power conferred on it by Section 16 of the Court of Appeal Act and assume the jurisdiction of the Election Tribunal and hear and determine the Petition filed by the Appellants, especially in the event that the Court decides that the Tribunal was wrong to have refused to admit the Statements on Oath of PW1 & PW2 who were witnesses called by the Appellant. It is clear that the Petition was filed on the 17th May, 2011. By Section 285 (7) of the Constitution of the Federal Republic of Nigeria (supra) the election Petition filed by the Appellant must be heard and determined by the election Tribunal within 180 days from the day of filing. It follows that the Petition is supposed to expire on the 12th November, 2011. If this Court holds that the refusal of the Tribunal to allow the witnesses of the Appellant to adopt their statements infringed on their right to fair hearing an order of retrial should ordinarily be made. But since the period for the hearing of the Petition would have expired by the time this Court will be hearing and delivering its judgment on this appeal, it is submitted that in the circumstances of this case, it is clear that the proper order that will meet the justice of the case is for this Court to invoke its power under Section 16 of the Court of Appeal Act and assume jurisdiction of the election Tribunal, hear this matter on the merit and make orders that will meet the justice of the matter.



It is therefore submitted that the conditions for the invocation of Section 16 of the Court of Appeal, Act (supra) are present in the case under reference. In Dapialong v. Dariye (2007) 8 M.J.S.C 140 @ 151, the Supreme Court illuminated thus:

“The power conferred on the Court of Appeal by Section 16 of the Court of Appeal Act are exercisable by that Court where certain fundamental conditionalities are met, such as :-



(a) availability of the necessary materials to consider and adjudicate in the matter;

(b) the length of time between the disposal of the action at the trial Court and the hearing of the appeal; and

(c) the interest of justice by eliminating further delay that would arise in the event of remitting the case back to the trial court for rehearing and the hardship such an order would cause on either or both parties to the case’.

8.6 In Action Congress v. Jang (2009) 4 N.W.L.R (Pt. 1132) 475 @ 486, the Court of Appeal illuminated thus:



‘The purport of Section 15 of the Court of Appeal Act is to enable the Court of Appeal take a decision one way or another on a matter which could have been decided by the trial court or tribunal. Thus, in a case where the parties presented their cases before the trial court or tribunal which failed in its duty to make pronouncement on any issue relevant to the case, the appellate court can deal with the issue and resolve same as if it were sitting in place of the trial court or tribunal…’



It is submitted that the Court of Appeal can evaluate and appraise the evidence on record and make an order on such terms as the Court may think just, to ensure the determination on the merits of the real question in controversy between the parties and make appropriate findings in accordance with the evidence laid before it. Order 4 Rule 4 of the Court of Appeal Rules, 2007, provides as follows:



‘The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision below, or by any appeal or for affirming or varying the decision of that court is not specified in such a notice; and the court may make any order, or on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties’.

See Adams v. Umar (supra) 64-65, held 16, 17, 18 &19.



Also in Yaro v. State (2007) 12 M.J.S.C 57 @ 74, the Court of Appeal was invited to resolve the issue whether the Court of Appeal was right to raise the issue of the defence of justification and provocation on its own accord by the Appellant. The Supreme Court answered the question in the affirmative after considering the provisions of Order 1 Rule 19 (1) of the Court of Appeal, Rules, 2002 (which is similar to Order 4 Rule 4 of the Court of Appeal Rules, 2007) and illuminated the position of the law thus:



‘By Order 1 Rules 19 (3) and 19 (4) of the Court of Appeal Rules, 2002, the Court of Appeal has power to evaluate the evidence in the record and do what it considers just in the circumstances. The Court also has the power to make any finding which ought to be arrived at by the trial court based upon the evidence available in the record’.



In Ndukwe v. State (2009) 7 NWLR (1139) 43 @ 55, the Supreme Court elucidated on the power of an appellate Court to evaluate evidence thus:



“An appellate court has the power to evaluate the evidence before it as an appeal is in the nature of a re-hearing. In other words, where a trial court fails in evaluating facts found by it, an appellate court can re-examine the whole facts and come to an independent decision”

See Ekpemupolo v. Edremoda (2009) 8 N.W.L.R (Pt.1142) 166 @175, held 10. In a similar circumstance, the Supreme Court in Agbakoba v. INEC (2008) 18 NWLR (Pt. 1119) 489 @ 558, invoked its power conferred on it by Section 22 of the Supreme Court (which is similar to Section 15 of the Court of Appeal Act) thus:



‘…one other factor that the court has to take into account is the urgency surrounding this matter as the tenure of the members of the National Assembly is for a period of four years and so far 18 months of that period have already been spent i.e. the appellant could only serve for the unexhausted tenure of 4 years. It does not augur well for democracy to delay any further. Hence to remit this case back to the lower court to come back to this court on appeal apart from causing great hardship to the appellant, it does not work in the interest of the constituents who are entitled to know their true representatives at the National Assembly. For all this, I agree with the appellant that this is a case in which this court is eminently positioned and justified to exercise its power under Section 22 of the Supreme Court Act and determine the matter on its merits here and now, as the preconditions to do so as I have outlined above are conclusive…’

See Amaechi v. INEC (2008) 1 M. J.S. C 1 @ 20. See Cappa & D’ Alberto Ltd v. Akintillo (2003) 9 NWLR (Pt. 824) 49; A. G, Anambra State v. Okeke (2002) 12 NWLR (Pt. 782) 575; Jadesimi v. Okorie Eboh (1986) 1 NWLR (Pt. 160 264.



In the light of the above, this Honourable Court is invited to allow the appeal for the reasons which the Appellant has comprehensively and adequately discussed in the body of this Brief of Argument or the issues for determination framed from the Grounds of Appeal and in addition for the following reasons summarized as follows thus:

i. The Tribunal was wrong and fell into error that occasioned a miscarriage of justice by rejecting the Statements on Oaths of the witnesses called by the Appellant on the ground that the statements did not strictly comply with the format prescribed by the First Schedule to the Oaths Act (supra). It is clear the statements conformed substantially with the format prescribed by the First Schedule to the Oaths Act and were admissible and constituted evidence. The authority of Obumneke v. Sylvester (supra) which the Tribunal relied on to hold that these statements were inadmissibility is inapplicable and not relevant.

ii. The refusal of the Tribunal to examine, analyse and evaluate documentary evidence (Exhibit B - B77) that was tendered from the Bar in accordance with the provisions of Paragraph 41 (3) of the First Schedule to the Electoral Act on the ground that these documents were dumped on the Tribunal and that there was no oral evidence adduced by the Appellants to be used to assess the documents was wrong and led to a miscarriage of justice.

iii. The 1st Respondent was not qualified to contest the election because his name was rejected by the 3rd Respondent when it rejected the List of Candidates from the 2nd Respondent. The Tribunal had jurisdiction to hear and determine the issue of whether or not the 1st Respondent was qualified to contest the election.

iv. The non evaluation of documentary evidence (Exhibits B - B77 and EXHIBIT C - C7) shows that Forms EC8A (i) for 77 of the 80 Polling Units in the Constituency and Forms EC8B (i) showing results for 21 Polling Units from the Ward Collation Centre of Ikom Ward I, were not stamped, signed and dated in contravention of the mandatory provisions of Section 63 (1) & (2) of the Electoral Act occasioned a miscarriage of justice on the appellants.

v. The 1st and 3rd Respondent by not calling any evidence have abandoned their pleadings and conceded to the case of the Petitioners particularly allegations of non compliance with the provisions of the Electoral Act made against the 1st & 3rd Respondents that conducted the election and therefore the Appellants were obligated to prove their case by preponderance of evidence.

vi. The trial Tribunal was wrong to have discountenanced Pages 11-30 of the Final Written Address of the Appellants.



DATED THIS 8TH DAY OF DECEMBER, 2011.





CHIEF OKOI O. OBONO-OBLA

OBONO, OBONO & ASSOCIATES

(APPELLANT’S SOLICITORS)

TRINITY HOUSE, 2ND FLOOR,

MABUSHI, ABUJA, NIGERIA.



OR



O. U. OKA & ASSOCIATES

104 CALABAR ROAD, CALABAR,

CROSS RIVER STATE.



ADDRESS FOR SERVICE

1. ON THE 1ST RESPONDENT

C/O THEIR SOLICITOR

NDOMA EGODO, REGINA AND CO.

93, NDIDEM USANG ISO ROAD, CALABAR.



2. ON THE 2ND RESPONDENT

C/O THEIR SOLICITORS

EBAYE AKONJOM

64 NDIDEM USANG ISO ROAD

CALABAR



3. ON THE 3RD RESPONDENT

C/O THEIR COUNSEL

EKURI, ONOR & CO

65, NDIDEM USANG ISO ROAD

CALABAR.