APPELLANT’S BRIEF OF ARGUMENT

0. INTRODUCTION

1. Following the conduct of the Presidential election on 21^st April, 2007 by the 1^st and 2^nd Respondents and the declaration of the 4^th Respondent as the winner on 23^rd April, 2007 the Appellant, together with his Vice-Presidential candidate Chief Edwin Umezoke, filed a petition against the said declaration of 4^th Respondent herein (5^th Respondent in the petition) and his Vice-Presidential candidate, the 5^th Respondent herein (6^th Respondent in the petition). The petition was filed in the Court of Appeal Abuja on 22^nd May, 2007. The 1^st and 2^nd Respondents were duly served the petition on 28^th May, 2007, but did not file any reply until 10^th September, 2007. This was after a contested enlargement of time granted by the Court below.

The 4^th and 5^th Respondents, following the setting aside of the original service of the petition by the Court of Appeal, filed their reply on 15/08/07.

The petition is copied at pages 1-46 of the record, the reply by the 1^st and 2^nd Respondents is copied at pages 469- 730. The reply by the 3^rd Respondent is copied at pages 247-256 while the reply of the 4^th and 5^th respondents is copied at pages 289-452.

2. There were six Respondents originally. But with the striking out of the original 3^rd respondent as being improperly joined the original 4^th respondent, that is the Inspector- General of Police, became the 3^rd Respondent in this Appeal while the original 5^th and 6^th respondents became the 4^th and 5^th Respondents respectively in this Appeal. Any reference to 4^th and 5^th Respondents in this appeal is thus a reference to the 5^th and 6^th Respondents in the judgment appealed against.
3. Prior to the filing of the petition, the Court of Appeal had on the 14^th of May, 2007 granted the petitioner leave to inspect election documents in the custody of the 1^st and 2^nd respondents for the purpose of instituting and maintaining a petition. The refusal of the 1^st and 2^nd Respondents to obey that order until the petition was filed and thereafter led to the commencement of committal proceedings against the 2^nd Respondent. Processes relating to this proceeding are copied at pages 106-160 of the record. It was not until July 2007 that the 1^st and 2^nd Respondents allowed the inspection of documents to proceed, and it was not until September 2007 that the first batch of certified copies of election materials were made available to the appellant. This was four months after the order was made! While the 1^st and 2^nd Respondents withheld the documents with which the petitioner would prosecute the petition, the Court continued to pressurize the petitioner’s counsel to commence the hearing of the petition without the documents.
4. On 16/10/07 an Order for consolidation of petitions CA/A/EP/2/07 and CA/A/EP/3/07 was made by the Court and pre-hearing part issued as required by para.3(1D) of Practice Direction 2007. see P.2516 (Vol VI) of record.

After receiving the documents, the petitioner on 15/10/07 filed an application for the following reliefs:-

a. Leave to apply to file additional witness depositions

b. Leave to file additional witness depositions

c. Leave to lead evidence of documents not filed with the petition including videotapes, photographs, reports and other documents relevant to the petition. 

Although the application was to file additional witness depositions to cover more of the proposed 150 witnesses particularly the documents inspection witnesses the Court below refused the application on 18^th October, 2007 in the following words:

“I find it strange that an application of this sort is being brought at this early stage when the 150 witnesses listed by the applicant have not been taken. When we have taken off hearing of witnesses and there is the need to call additional witnesses, due consideration will be given for this. I see no merit in the motion and it is accordingly refused.”

The petitioner never sought to call additional witnesses, but to file additional witness depositions. The Court below thus refused the application without considering the reliefs sought in the application. The application, affidavit in support and written address on behalf of the petitioner are copied at pages 951-961. 

5. The Court below, while refusing the petitioner right to file additional witness depositions impliedly granted the petitioner leave to call his 150 listed witnesses even though only twenty depositions were filed with the petition. The petitioner called his first witness Emmanuel Iwuamadi on 23^rd October 2007. The witness had a deposition before the Court when Counsel for the petitioner sought to tender certified election documents from Rivers State through the witness, counsel for all the respondents objected. After argument the court ruled as follows as copied at page 2530 at (vol. VI) of the record of appeal.

“The facts pleaded by the petitioner in the petition have sufficiently laid the foundation for the admission of the documents. The law is that facts are to be pleaded, not evidence. The facts pleaded by the petitioner in the petition have sufficiently led the foundation for the admission of the documents. It is amazing that even INEC is objecting to admissibility of its own certified documents. The objection of the respondents is overruled and the documents are admitted as Exhibits EP2/5(e) 1-7. (Emphasis supplied)”

Thereafter all subsequent documents were admitted on same objection and same ruling. In order words, the respondents had objected to the certified documents sought to be tendered and were overruled on record. The witness thereafter tendered some certified documents from Rivers State before he was stopped by the Court as herein after stated.

6. As would be observed in the record of appeal, after the witness had tendered Exhibits EP2/25C1 – 100 subsequent documents were tendered from the Bar (see page 2530 Vol VI). The cross - examination of the PWI Emmanuel Iwuamadi also did not take place until 24^th October, 2007 (see pages 2539 – 2542 Vol VI). Unfortunately the presiding Justice Ogebe JCA (as he then was) completely, and surprisingly omitted the facts of the very material events that took place on the 23^rd of October, 2007 in the course of the testimony of PWI which led to the switch from tendering documents from the witness box to tendering them from the Bar.
7. What transpired was that after the tendering of Exhibits EP/25C 1-100 on the said 23/10/07, the Presiding Justice called the Court, and their Lordships retired to the chambers of the Presiding Justice. From there the Presiding Justice sent for the senior counsel representing the parties. In the conference room to which all retired, because of the number of senior counsel, the presiding Justice proposed that witnesses be dispensed with, and the documents tendered from the Bar in order, according to His Lordship, to save time and in view of the nature of documents being tendered. Counsel for the petitioner protested the procedure since that was just the first day of the 30 days granted the petitioner to present his case and also the first of the 150 witnesses allowed the petitioner, and insisted that at least a few witnesses must be called in order to test the veracity of the depositions and in proof of averments. But on the insistence of the Presiding Justice that certified public documents do not require oral back up, counsel for the appellant conceded, but on one condition: that the witness already sworn be allowed to conclude his testimony on oath. Thus it was agreed that after PWI’s testimony and cross-examination, counsel on all sides would tender certified documents from the Bar in proof of their case.
8. But when the Court reconvened, the Court through the presiding Justice and Fabiyi JCA, on application from counsel to the 4^th and 5^th respondents, asked PWI out of the witness box. This is why at page 2530 of the record, there was a sudden change from witness’ testimony to tendering of documents from the Bar by counsel which lasted until 24^th October, 2007 after which the witness was recalled to the witness box to be cross examined on his testimony. The cross examination the recording of which was grossly incomplete is copied at pages 2539 - 2542 of the record. On the said 23/10/07 and 24/10/07 the numerous documents from Rivers State, and certified documents from Cross River, Kwara, Osun, Imo, Edo, Ekiti, and Nasarawa States were admitted as Exhibits tendered from the Bar, objected to and objection overruled.
9. It was on the receipt of the record of proceeding later that it was discovered that the Presiding Justice recorded nothing about the chamber meeting and discussion, and the fact that PWI was never allowed to conclude his evidence-in-Chief before he was cross-examined is completely omitted in the record.

At the hearing the petitioner shall seek leave to use his counsel’s Court notes and affidavit of the witness to supply these material omissions in the Court’s record. However, of very material relevance is the recording of 4^th & 5^th Respondents’ counsel, Chief Olanipekun’s statement in the record of appeal of the proceedings on the said 23/10/07:

“Chief Olanipekun: I suggest after this witness my learned friend can tender other documents from the Bar and we make progress.

Court: The matter is adjourned to 24/10/07 for continuation.

On the adjourned date PW1 was cross-examined.

It was the same counsel who later submitted that the documents were dumped without viva voce testimony as shall hereinafter be shown, and Court below surprisingly agreed with him.

10. On 26^th October, 2007 certified election documents from Gombe, Adamawa, Sokoto, Anambra, Oyo, Ogun and Delta States were tendered from the Bar, and the hearing adjourned to 29^th October, 2007 on which day certified election documents from Kogi, Benue, Niger, Kebbi, Ebonyi, Plateau and 100 voter registers from Imo State that were not available at the time other documents from Imo State were tendered.
11. On 30^th October, 2007, counsel for the petitioner, applied for a stand down of proceedings to enable him discuss a development with his learned colleagues; this was granted. After the discussion amongst counsel, all trooped to the chamber to inform their Lordships about the new development which was that counsel for the appellant was insisting on calling witnesses to testify orally in the proceeding. Before their Lordships in chamber counsel for the appellant repeated his position and the Presiding Justice and Fabiyi JCA insisted that there was no need to call oral evidence. Counsel specifically asked that he be allowed to call at least five witnesses with the option to the Respondents to do the same, and at a stage even three. At the end it was decided that in lieu of Oral testimony counsel for the appellant should be allowed to file witness depositions for his inspection witnesses.
12. When hearing resumed in open court the Presiding Justice made no notes on what had transpired in chambers but proceeded to admitting documents from the Bar. Documents so admitted were from Kaduna State and part of Katsina State. Counsel for the appellant then formally applied for

“a convenient date to put in our depositions on inspection”.

This application was granted in these words

“The respondents having no objection, the petitions are adjourned to 12/11/07 for continuation”. (emphasis supplied)

(See page 2555, (Vol VI) of record). Fabiyi JCA who wrote the lead judgment now appealed against in his own notes adjourned proceedings in the following words:

“Counsel for respondents have no objection, with liberty to file corresponding depositions. Adjourned to 12/11/07 for continuation of hearing by common consent.” (emphasis supplied).

Abba Aji JCA who always had the most comprehensive recording of the events recorded it thus at page 2565(Vol VI)

“Ahamba: I am still expecting 4 voters registers from 4 local governments. I will apply to tender the documents whenever they come. In view of our chamber conference, we will be asking for adjournment to enable us put in our depositions for the inspection of the documents. All respondents agreed as discussed and will consequently request to file similar depositions.

Agabi: I have no objection.

Court: As agreed by all counsel at the meeting, and thus by consent of all parties, this matter is hereby adjourned to 12/11/07 for continuation”. (emphasis supplied).

On 7^th November the petitioner, pursuant to the adjournment in that behalf as recounted supra, filed four witnesses’ depositions by those who inspected election documents in August – September 2007 pursuant to an Order made as far back as 14^th May 2007. The four witness depositions are copied at pages 988-1434.(Vol III)

13. On 12/11/07 both Court and the counsel for the respondents denied that the petitioner was allowed to file witness depositions on 30/10/07, the Presiding Justice saying after flipping through his records that no such leave was granted. Consequent upon this, and without the benefit of access to the record at that time, counsel for the appellant agreed to file a motion to regularize the witness depositions filed on 7/11/07. Hearing was adjourned to 19/11/07. Unfortunately, apart from the recording of the Exhibits tendered on that day (12/11/07), that is the remaining documents from Katsina state, the report of the European Union Monitoring Team (Exhibit 35) and pages of two newspapers, namely the Daily Independent and the Sun Newspaper, only the appellant’s counsel’s application to file a formal application was recorded. However on 14/11/07 the appellant filed the application to regularize the depositions of the inspection witnesses already filed. The application together with affidavit and address in support of the application are copied at pages 1435 – 1449(vol IV) of the records.
14. On 19^th November, 2007 argument was taken with counsel for the appellant insisting that he was being ambushed. This was noted on record although without the relevant details of the complaint. (See page 2572 (vol VI) of record.) At the end of argument the Presiding Justice, after noting that the appellant had sought to be either allowed to file the deposition or be allowed to call oral evidence refused both in these words:

“I have listened to the arguments of counsel on all sides and it is my view that what is sought to be tendered as deposition of witnesses are actually an analysis of the election documents with opinions and legal conclusions of the witnesses. These witnesses merely inspected the documents. They are not the makers and have no legal competence to comment on them. On the other hand, Counsel on all sides are free to comment on the documents which were tendered from the Bar to assist the Court in their final addresses. This point was even conceded by Chief Olanipekun for the 1^st and 2^nd Respondents (sic). The application is unnecessary and has no support in the practice Directions.”(emphasis supplied).

Chief Olanipekun was Counsel for 5^th and 6^th Respondents not counsel for 1^st and 2^nd Respondents in the Court below in EP2/2007.

1.15 Following the ruling Supra which showed that the Court and the Respondents had reneged on the agreement in chambers on 30/11/07, and the open statement that the Court was not bound by agreement of Counsel the appellant’s counsel invited the petitioner’s National Collation Center agent Salihijo Tahir into the witness box to testify and adopt his already filed deposition. Before he could be sworn, counsel for the 4^th & 5^th Respondents in this appeal objected to his oral testimony. This was put on record thus at page 2573.(Vol VI):

“Chief Olanipekun: we agreed that the witnesses (sic) statements be taken as adopted. What is the basis of calling some witnesses?”

The counsel for the other respondents agreed with him. At that stage counsel for the appellant protested that counsel for the respondents could not dictate to him how to present his case, and a heated argument ensued during which the Presiding Judge addressed Counsel for the Petitioner in these words;

“What are you afraid of, I am a gentleman, you should know”. The Court agreed with the position of the respondents and ruled thus (per Ogebe JCA) (p. 2574):

“Court: Counsel on all parties at pre-trial conference agreed that depositions of witnesses shall be adopted without cross-examination. Accordingly all the witnesses’ depositions in petitioner’s petition are herby adopted”.

Fabiyi JCA who was later to write the lead judgment and therein sanction the appellants for not calling oral evidence noted inter alia:

“Court: “……….. The documents inspected by the witnesses have been tendered by consent and counsel, in their respective addresses are at liberty to comment on them.” (emphasis supplied).

See page 2575(Vol VI) of the record.

Jega JCA ruled thus:

“it is our considered views that depositions of witnesses sought to be tendered in court is (sic) not necessary, the documents are already admitted in evidence by consent of learned counsel to the parties, and at the end of trial of(sic)f address stage learned counsel to the parties are free to comment and draw conclusion on the effect of the documents on the entire case and attach whatever evidence that value (sic) they deem appropriate on them as the deposition of witness who carried out the inspection of the election document is unnecessary ………..” (emphasis supplied) p. 2578 Vol Vi.

Both Abba Aji and Agbo JJCA ruled in the same vein as their Lordships supra.

1.16 As a result of the considered rulings as quoted supra to the effect that parties’ counsel could address on the exhibits before the court, and oral evidence having been dispensed with on record and declared ‘unnecessary’ by the Court, the appellant’s counsel closed his case on 20^th November, 2007. At no time in the course of the presentation of the petitioner’s case in CA/A/EP2/07 did any of the respondents counsel reserve his objection to adoption of depositions to address stage as stated by the court below in the Judgment.

1.17 On 26/11/07 the petitioner in CA/A/EP3/07 opened their case and closed on 6^th December, 2007.

1.18 The Respondents opened their case on the same 6/12/07 and closed the same day after tendering documents in a manner inconsistent with the Practice Directions 2007. On objection by the petitioner in CA/A/EP/2/07, the Honourable Court, contrary to its strict application of the Practice Direction earlier in the proceeding, for the first time attached a permissive connotation to the same Practice Direction. (See page 2614 Vol VI)

1.19 The Court ordered written Addresses, and on 5^th February 2007 oral submissions were taken from counsel in the two consolidated petitions and judgment reserved. On 26^th February, 2007 the court below which had from 23/10/07 – 12/11/07 received documents from the petitioner and ruled same as properly admitted before it , and which had ruled that the exhibits constituted evidence upon which counsel should address the Court, and upon which they were addressed, dismissed the petition on the ground that no evidence was led in support of any of the allegations of non-compliance with the provisions of the Electoral Act, even though in the same judgment it was held that the petitioner had proved substantial non compliance with section 45(2) of the Electoral Act.

1.20 Against this decision the appellant herein has appealed to this Honourable Court. Two Notices of Appeal were filed before this Honourable Court. The first which has eight grounds of appeal was filed on 29/2/08. The second which has twenty grounds of appeal was filed on 7^th March, 2008. For the Purposes of this appeal, the appellant adopts the notice of Appeal filed on 7^th March, 2008 and abandons the earlier one.

1.21 In the course of this appeal, the appellant shall respectfully invite the Supreme Court of Nigeria as the apex Court of this country to take a hard and considered look at two sections of the Electoral Act, that is Sections 46(3) and 146(1) for an effective, effectual and dispassionate interpretation of the two sections as the most effective and probably most efficacious Judicial contribution towards finding a solution to the recurrent electoral dilemma of this country, Nigeria.

2.00 ISSUES ARISING FOR DETERMINATION IN THIS APPEAL.

From the twenty (20) grounds of appeal the following ten (10) Issues for determination have been distilled on behalf of the petitioner:

2.01 Whether the Court of Appeal was right when it held that the petitioner presented evidence on four states only.

Ground 6.

2.02 Whether on a proper evaluation of the evidence adduced in this petition, the petitioner was not entitled to judgment.

 Grounds 1, 4, 5, 6, 13, 14, 15, 17, 18, 19 and 20

2.03 On who does Section 146(1) of the Electoral Act place the onus of proof of the effect of established substantial non compliance with the provisions of the Act on the result of an election conducted under the Electoral Act 2006, the Petitioner or the Respondents?.

    Ground 3.

2.04  Whether the Court of Appeal properly placed the onus of proof of the effect of established substantial non compliance with the provisions of the Electoral Act on the Petitioner.

Ground 2.

2.05  Whether the power of the President of the Court of Appeal under any section of the Nigerian Constitution including sections 248, and 285 extends to the power to issue Practice Directions to the Court in its original jurisdiction under section 239(1) of the Constitution. Ground 9.

2.06  Whether the Court below had the competence to reverse itself on its ruling on 23/10/07 on the averments in the Petitioner’s pleadings.

Ground 12.

2.07  Whether the Court below was right when on 19/11/07 it rejected the petitioner’s inspection witness depositions already filed before it.

Ground 16.

2.08  Whether the Court of Appeal was right when it failed to declare the depositions jointly filed by the 1^st and 2^nd respondents and those jointly filed by the 4^th and 5^th Respondents respectively as incompetent despite being inapplicable to the proceeding. Ground 11.

2.09 Whether the Court of Appeal was right in striking out 18 out of 19 witness depositions filed with the petition after adopting the depositions unconditionally by order of court on 19/11/07.   

 Ground 10.

2.10 Whether the Court of Appeal was right when it assumed jurisdiction to inquire into the propriety of Exhibit EP2/34. (Ground 7).

3.00 SOME FACTS RELEVANT TO THE RESOLUTION OF THE ISSUES FOR DETERMINATION.

a. The petitioner listed 150 witnesses to be called in proof of his petition at the time of filing the petition, and the Court reported it in the pre-trial report.

b. By the agreement of parties and Order of Court, oral evidence was dispensed with as being unnecessary.

c. Counsel for the Respondents insisted that oral evidence be dispensed with.

d. The petition was by Order of Court heard on the basis of documents tendered by the parties in the proceeding.

e. Apart from the manual, Exhibit P2/A1, the report of E.U. observers (Exhibit EP2/35), the Abia State White Paper (Exhibit EP2/34, and the two newspapers (Exhibits P2/36 and EP2/34) all other documentary exhibit tendered by the petitioner were certified true copies of election documents obtained from the 1^st and 2^nd Respondents pursuant to an order of the Court below on 14/5/07.

f. Every election document, save the EC8E (Exhibit EP2/B1) the two EC8D(A)s Exhibits EP2/B2 and EP2/B3 which were undisputed, was admitted after due objections and rulings by the Court.

g. The witness depositions of the parties witnesses were adopted as evidence in the proceedings without any reservations for subsequent address in the proceedings. 

h. Two national collated results manifesting material inconsistencies were admitted in evidence as Exhibits EP2/B2 and EP2/B3 respectively by consent.

i. There was no evidence on record explaining the inconsistencies between Exhibit EP2/B2 and Exhibit EP2/B3.

j. The two purported collated results were not signed by the appropriate authority as collation officer.

k. Unauthorized persons signed one of the purported Collated results as party agents.

l. The final result EP2/B1 is inconsistent with material entries in twenty eight (28) State results (EC8Ds) on record.

m. There are two inconsistent results (EC8Ds) in respect of Taraba and Nasarawa States respectively.

n. Several EC8As, (unit results) EC8Bs (Ward Result) EC8Cs (local governments area) results bear dates either pre- 21/4/07 the day of the purported election, or post 23/4/07, the date the purported result was announced.

15. The voters’ register from several states manifest gross irregularities ex-facie.
16. Both manual and electronic voters Registers were in use at the election.

q. Every Exhibit was tied to the unit, ward, Local government or State to which it relates in the Address of Counsel to the Petitioner as ordered by the Court in the Proceeding.

18. The Court of Appeal treated documentary evidence as no evidence.

4. ARGUMENT ON THE ISSUES

1. ISSUES 2.03 & 2.04

Issue 2.03: On who does section 146(1) place the Onus of proof of the effect of established substantial non-compliance with the provisions of the Act on the result of an election conducted under the Electoral Act 2006, the petitioner or the respondents?

Issue 2.04: Whether the Court of Appeal properly placed the onus of proof of the effect of the established substantial non-compliance with the provisions of the Electoral Act on the Petitioner.

These two issues shall, in view of their being related, be argued together in this brief.

4.01A The Court of Appeal had arrived at a conclusion on the very important issue of onus of proof of effect of established non-compliance with provisions of Electoral Act in the following words:

“It is incumbent on the petitioner pursuant to the provisions of section 146 of the Electoral Act to establish that the non-compliance established by him substantially affected the result of the election. This he has failed to do in the instant case. In HARUNA VS MODIBBO (2004) 16NWLR (pt 900) 487, this Court held that where a petitioner makes non-compliance with the Electoral Act, the foundation of his complaint, he is fixed with a heavy burden to prove before the court by cogent and compelling evidence that the non-compliance is of such a nature as to affect the result of the election. He must show and satisfy the Court that the non-compliance substantially affected the result of the election to his disadvantage. Also in BUHARI VS OBASANJO (2005) 13 NWLR (pt 941) 1, Belgore, JSC in interpreting this provision of section 135(1) of the Electoral Act, 2002, had this to say:

‘It is manifest that an election by virtue of section 135(1) of the Act shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provision of the Act. It must be shown clearly by evidence that the non compliance has substantially affected the result of the election. Election and its victory is (sic) like soccer and goals scored. The petitioner must not only show substantial non compliance but also the figures, ie votes that the compliance attracted or omitted. The elementary evidential burden of “the person asserting must prove” has not been derogated from by section 135(1). The petitioner must not only assert but must satisfy the court that the non compliance has so affected the election results to justify nullification’.

See also AWOLOWO VS SHAGARI (1979) 6 – 9 SC51; ITUTE VS INEC (1999) 4 NWLR (pt 599) 360; AKINFOSILE VS IJOSE (1960) SCNLR 447; and AJADI VS AJIBOLA (2004) 16 NWLR (pt 898) 91.

“It is clear from the above authorities that the onus of proof of the substantiality of the non-compliance and the substantiality of the effect of the non-compliance on the election results rests on the petitioner. The petitioner has in the instant case established the substantiality of the non-compliance with section 145(2)(sic) of the Electoral Act, but has failed to establish the substantiality of this non compliance on the result of the election. This issue is therefore resolved in favour of the Respondent”s.

(emphasis supplied)

It is submitted that the statement of the Court below supra is the ratio decidendi that disfigured the reasoning of that Honourable Court and more than anything else influenced the ultimate dismissal of the petition; for, otherwise, the Court below having found the substantiality of the non compliance with section45(2) proved, should have annulled the election without more. But it is submitted with due respect that the statement above, which led to the misplacement of onus on a material issue by wrongly placing same on the petitioner, does not, unfortunately, represent the law, and any existing judicial authority which places the onus of proving effect of established non compliance on a petitioner is per incuriam as shall be hereafter shown.

4.01B (i) To appreciate the substance of the complaint against the decision of the Court below on this issue it is necessary to reproduce the said section 146(1) of the Act 

“146(1) - An election shall not be liable to be invalidated by reason of non compliance with the provisions of the Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.”(emphasis supplied).

The express words when analyzed show that non compliance with provisions of the Electoral Act will only not invalidate an election on two conditions:

1. If the Tribunal or Court is satisfied that the election was conducted substantially in accordance with the principles of the Electoral Act, and
2. If the Tribunal is satisfied that the non compliance did not affect substantially the result of the election.

Considering the provision conversely, it may be constructed that an election will be invalidated unless the Tribunal or Court is duly satisfied that the election was conducted substantially in accordance with the principles of the Act, and that the non-compliance did not affect substantially the result of the election. Thus if the Court or Tribunal is not satisfied on these two conditions precedent which the word “if” connotes, the election should necessarily be invalidated. More explicitly put, we submit that the need to satisfy the Tribunal is for the purpose of saving, not annulling the election. The crucial question then is this: on who lies the Onus to satisfy the Tribunal or Court that these two conditions that would save an election from being nullified exist?

4.01B (ii) Before one goes into Legal interpretation of the section the question may be asked: What does “principles of the Electoral Act” mean? This expression has received Judicial interpretation by the Court of Appeal in two case. These are IMIERE V SALAMI (1989) 2NWLR 131 at 159; and NA’BATURE V MAHUTA (1992) 9NWLR (PT 263) 85 at 105.

In the Imiere V Salami case Ndoma – Egba JCA has at page 159 thereof explained the principles of the Electoral Act (Decree) then in force thus:

“The Principle of the Decree is to ensure a free and fair election. All the requirements prescribed in the Decree and the schedule rules are to achieve that objective. A deviation from it will, no matter the content of any rule or, requirement be regarded as substantial non-compliance with the principles and will, in consequence, vitiate the election ………”

The learned Justice further stated that unless “reasonably explained” such non compliance is

“Contrary to the letter and spirit of the Decree and will render the election void”.

In the Na’Bature V Mahuta case Tobi JCA (as he then was) stated:

“If the nature of the non – compliance is such as to give obvious advantage in one of the parties to the election, such non – compliance is substantial, and, unless there is evidence to the contrary, has affected the result of the election in favour of the party who enjoyed the advantage and against the party who suffered a disadvantage” (emphasis supplied)

In other words any non compliance that gives a party some advantage over others is substantial per se, and we so submit.

4.01B(iii) It is clear that the two statements by the two eminent Justices have identified fairness and neutrality as the principles of the Electoral Legislations in issue in those cases, and, we submit any other electoral Legislation. Hence, in the Manual for Election Officials 2007, published by authority of section 161 of the Act by the 1^st Respondent (Exh P2/A1) para. 1.3 page 5, the 1^st & 2^nd Respondents identified what would make an election ‘credible and its outcome acceptable’ as the following:

(a) transparency and neutrality

(b) high level of integrity

(c) credibility, courage and dedication,

(d) respect for the secrecy of the vote, and

(e) acting in accordance with the law.

It will be observed that INEC has added another principle-legality. Thus the principles of the Electoral Act are fairness, neutrality & legality.

These we submit are the principles of the Electoral Act 2006 which if breached, unless the breach is “reasonably explained” (Imiere V Salami) or “there is evidence to the country” (Na’ Bature V Mahuta) the election is void.

We respectfully submit that such breaches which would without any contrary evidence or explanation void an election without more include:

1. Widespread evidence of Unit, Ward and L.G.A results written before the election day;

(b)Widespread evidence of Units, Wards and L.G.A results written after the final Presidential result had been announced on 23/4/07;

(c) Widespread evidence of undated results.

(d) Evidence of thousands of Units all over Nigeria where results were declared without any accreditation in the Voters’ registers of such Units;

(e)Widespread evidence of a single individual signing multiple Ward and L.G.A result when the centres are supposed to be separate and apart, and the activities simultaneous;

(f)Widespread unauthenticated alterations in results manifesting inflation or reduction of figures;

(g)Widespread inconsistencies between the entries in different tiers of the election;

(h)Widespread cases of unauthorized signatories in the result forms;

(i)Widespread evidence of absence of authorized signatories in result Forms;

10. No evidence of delivery of election materials at the Unit level of the election; and

such other acts of non compliance which exist throughout the States of the Federation, particularly where all the acts of non-compliance wherever and howsoever they exist were overtly shown to have been committed with impunity in favour of one of the parties to the election. In such a situation such as shall be shown to exist in this appeal, it cannot be reasonably said that the election had not been conducted in a manner that gave advantage to the said benefiting party against the other parties, in which case, without more, the election would be void i.e. rendered undue.

The question which the Appellant calls to be resolved is this: who is to provide the reasonable explanation, or provide the evidence to the contrary? We submit that on that party lies the burden to satisfy the Tribunal or Court under section 146(1) of the Electoral Act, 2006 who must lose if the contrary is not proved

4.01C To answer this question appropriately, it is submitted that a revisit of the time-hallowed principles of interpretation would be apposite. According to Lord Reid in the case of GOODRICH V PEISMER (1957) AC 65 at 88,

“No Court is entitled to substitute its own words for the words of the state.”

This principle was restated by the Supreme Court of Nigeria in ATUYEYE V ASHAMU (1987) 1 NWLR (pt 49) 267 at 278.

In THOMPSON V GOOLD & CO (1910) AC 409 at 420, Lord Mersey observed:

“It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity, it is a wrong thing to do.”

This was quoted with approval in AWOLOWO V SHAGARI (1979) 6-9SC 51 at 92 (per Fatai-Williams JSC.

In AQUA LTD V ONDO SPORTS COUNCIL (1988) 3NSCC (Vol 19) (pt111) 22 at 34 Wali JSC stated:

“In construing a statute, it is the duty of the Court to ascertain the meaning of the words actually used by reading them in their ordinary grammatical sense and to give them effect, unless such construction would lead to some absurdity or inconvenience, or would be plainly repugnant to the intention to be collected from other parts of the statute”.

In OVIAWE N IRP LTD 1993 3NWLR (pt. 492) 126 at 137F Mohammed JSC stated:

“The rule of construction of Acts of parliament is that they should be construed according to the intent of the parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous then no more can be necessary to expound these words”.

In A.G. KANO STATE V AG FEDERATION” (2007) ALL FWLR (pt 364) 238 at 258; (2007) 3SC (pt11) 54 at 79, Muhammed JSC stated:

“It is now well settled that the duty of the Supreme Court and indeed any other Court is to interpret the words of the constitution and any other statute in their ordinary meaning. Certainly it is not the duty of the Court to go outside the words used in the statute and import an interpretation which may be or is convenient to it or to parties or to one of parties.”

In OBI V INEC (2007) 11 NWLR (pt1046) 565 at 643E-G: (2007) 7SC 268 at 315. Aderemi JSC stated:

“Judges, in the exercise of their interpretative jurisdiction, must only interpret the words of a statute or constitutional provision, where they are as clear as crystal, according to their ordinary and grammatical meaning without any colouration. It is true that Courts are always enjoined, in the course of interpreting the provisions, to find out the intention of the legislature, but there is no magical wand in this counseling. The intention of the Legislature, or put bluntly, the intention of the National Assembly at the Federal level and the State House of Assembly at the state level, is not to be judged by what is in its mind by its expression of the mind couched in the words of the statute”.

Oguntade JSC also stated in the case of LADOJA V INEC (2007) 7 SC 99 at 138

“This Court may interpret the constitution but it cannot re-write it”.

The same goes for a statute, we submit.

From the noble statements of these legal minds of high repute quoted supra, it is submitted that it has been put beyond argument that any interpretation of the constitution, or a statute for that matter, which imports words outside the express provisions, or ignores words in the provisions of the statute can safely be said to have been made per incuriam.

One thing, we submit, must be borne in mind in the interpretation of section 146(1) Electoral Act, and that is section 145(1)(b) states that non-compliance and corrupt practices are grounds for invalidating an election. It is submitted that section 146(1) provides an exception to the provision of section 145(1)(b), that is that it provides what will make section 145(1)(b) not to apply. Without section 146(1), proof of any non compliance would have nullified an election simpliciter. This is a material point to be accorded relevance in the search for the party on whom the burden lies under section 146(1) of the Electoral Act to satisfy the Court or Tribunal.

4.01D The Court below had, in arriving at its interpretative conclusion on section 146(1) relied on some judicial authorities prominent among which are Awolowo V Shagari (1979)6 – 9SC 51, Akinfosile Vs Ijose (1960) SCNLR 447, Buhari V Obasanjo (2005) 13NWLR (pt 941)1, Itute V INEC (1999)4 NWLR (pt 599)360, Ajadi V Ajibola (2004) 16 NWLR (pt 898) 91, and Haruna V Modibbo (2004) 16NWLR (pt 900) 487. While the first three decisions are Supreme Court decisions, the later three decisions are of the Court of Appeal and in fact drew, or appeared to draw strength from the Supreme Court decisions. Subsequent submissions will therefore rest on the two Supreme Court decisions.

4.01D(ii) The decisions above, it is submitted with due respect seem to appear to many to have fallen foul of the principles of interpretation of statutes, that is limiting the interpretative exercise to the words of the statute and no more. From the Pronouncements in the judgments it is clear that they are all seen to have stated that both past and present provisions in electoral statutes require a petitioner to prove that an established non compliance also affected the result of an election. It is respectfully and unequivocally submitted that there is no such provision in the section. What the section provides in clear as crystal words (courtesy Aderemi JSC) is that an established non compliance will not invalidate an election if the Court or Tribunal is satisfied that it was conducted in substantial compliance with the principles (not provisions) of the Act, and that the non compliance did not (not ‘did affect’) the result of the election. The duty of the Court then we submit, is to discern whose responsibility it should be to satisfy the Tribunal or Court that a challenged election was conducted in accordance with the principles of the Electoral Act, and that the established non compliance did not affect the result of the elections. In other words who should provide the reasonable explanation (per Ndoma Egba JSC) or lead evidence to the contrary (Tobi JCA as he then was) to prevent a nullification after evidence of substantial non compliance has been tendered; which we submit translates to non compliance with the principles of the Electoral Act, has been established by a petitioner. It is submitted that it would amount to standing the law on its head to imagine that the legislature could have intended that such a burden should be placed on a petitioner who has already pleaded in his petition that an election was invalid and has come to the tribunal or court to establish the invalidity resting on section 145(1)(b). We submit that common sense would place the onus to satisfy the court on the party who asserted that the election was properly conducted, and who would lose if the Court is not satisfied. This reasoning we submit is in accord with sections 135(1) and 136 of the Evidence Act read in unity.

4.01E The origin of the interpretative approach which placed the burden described by the lower Court as heavy on the petitioner is the decision in Akinfosile V Ijose (supra) upon which the Supreme Court (per Obaseki JSC) appears to have relied to decide the case of Awolowo V Shagari (supra) which was decided in 1979. This construction placed on a similar provision in the 1979 Electoral Act in the Awolowo V Shagari case by Obaseki JSC in his concurring judgment has been the basis for what we respectfully submit has been an erroneous interpretation of section146(1) of the Electoral Act 2006 (and its equivalent in the 2002 Act). Unfortunately this appeals more to those who believe in sustaining every election result, willy nilly.

The Akinfosile case was decided by the Supreme Court in 1960. But in 1966 that decision was consigned to the archive of judicial precedents by being confined to the “facts and pleading delivered therein”. This was done by the Supreme Court of Nigeria in the case of SWEM V DZUNGWE & ANOR (1966) NMLR 297 at 303. While stating the true position of the law, and after quoting with approval the statement of Lord Coleridge, CJ in Woodward v Sarsons (1875) LR 10 C.P. 733 the Supreme Court, in the following words of Coker JSC who delivered the judgment of the Court (with Ademola CJN and Idigbe JSC concurring) stated the Law thus:

“it is clear therefore that where, from the facts found the Court was unable to say whether or not the non-compliance affected the result, once it is satisfied that there was non-compliance which might affect the result, an election petition will be allowed. In such a petition the petitioner postulates that the petitioner lost the election on account of non-compliance with the Electoral Rules or Regulations or Statutes which was substantial enough to affect the result of the election. The reply of the respondent postulates, apart from technical bars and procedure and/or jurisdiction, that there was no non-compliance or that even if there was, the non-compliance did not affect the majority secured by the appellant. It follows clearly, therefore that if at the end of the case of the petitioner, a case of non-compliance is established which may or may not affect the result of the election, and it is impossible for the Tribunal to say whether or not the results were affected by the non-compliance established, unless there be evidence on behalf of the respondent that such a non-compliance as found could not and did not in-fact affect the results of the election, the petition is entitled to succeed on the simple ground that civil cases are proved by a preponderance of accepted evidence.

We wish to point out that the case of Akinfosile v Ijose (supra) was decided by its own facts and pleadings delivered therein. As already observed, once a petitioner establishes non-compliance and the court or other tribunal cannot say whether or not the results of the election could have been affected by such non compliance, the election will be avoided”. (emphasis supplied) 

It is therefore submitted that after the Supreme Court departed from its decision in Akinfosile v Ijose, that decision ceased to be the law, and the decision in Swem v Dzungwe became the extant case law. It is further submitted that all the other cases including Awolowo v Shagari, Buhari v Obasanjo, Haruna v Modibbo to the extent that they are rooted in Akinfosile v Ijose, or the reasoning in that judgment in the interpretation of section 146(1) of the Electoral Act 2006 are per-in curiam. This Honourable Court is specifically urged to so hold. With these Judicial authorities existing side by side with Swem V Dzungwe lower Courts will be entitled to follow any of them as judicial authority, thus foisting on Nigeria’s judicial process in election petitions two inconsistent view points on a very fundamental issue. One notes also that Swem V Dzungwe was not overruled in any decision since 1966. It thus remains an existing authority.

But are the decisions in Awolowo V Shagari and Buhari V Obasanjo really inconsistent with the decision in Swem V Dzungwe? Did the two cases decide differently?

It may be observed that this brief identified the very judgments where the position taken by the Court of Appeal in the present petition appears to have arisen. In the Awolowo V Shagari case, it was in the judgment of Obaseki JSC that Akinfosile V Ijose was relied upon and not in the judgment of the court delivered by Fatai-Williams, CJN (See (1979(6-10 SC at 110). After so relying, the Learned Justice concluded at page 114 thus:

“In this appeal, the appellant has failed to satisfy the Tribunal and this Court that the non-compliance has affected the result of the election or has prevented a majority of votes in his favour. The Appeal is accordingly dismissed”.

He would thus appear to have placed the onus on the petitioner based on his erroneous reliance on the case of Akinfosile V Ijose. There is nothing to show that Swem V Dzungwe was brought to His Lordship’s attention. However this position, it is submitted with respect differed from the judgment of the Court as delivered by Fatai- Williams CJN. First at page 59 of the same Law report His Lordship stated that the Tribunal dismissed the petition after observing

“that there was nothing in the petition alleging that the election was not conducted in substantial non compliance with any other portion of part II of the Decree apart from the complaint with respect to the interpretation put on section 34A(i) (C) (ii) …”

Then after enumerating the undisputed facts of the election the Learned CJN delivered the ratio decidendi of the judgment thus:

“In view of the above, there is no doubt that, even if we had found that there has been non-compliance with the said provisions, we would have invoked the provisions of section III subsection (1) of the Decree and held that the election, which in the present context means the election to the office of President, was conducted substantially in accordance with the provisions of section 34A(1) (C) (ii) which is within part II of the Decree.

The said section 111(i) is the equivalent of section 146(1) in the 1978 Electoral Decree.

From the above statement we submit that the case of Awolowo V Shagari is not an authority to a situation in which substantial non compliance has been held to have been established as in the present case in which the trial Court had found the substantiality of section 45(2) of the Electoral Act proved.

Also we submit that the case of Buhari V Obasanjo cited in the judgment, (i.e. the Court of Appeal version) is not an authority that where substantiality of a non compliance has been established, the onus to prove effect thereof still remains with the petitioner. This submission is based on the lead judgment of Tabai JCA (as he then was) who in delivering judgment of the Court of Appeal, after quoting the Supreme Court on Swem V Dzungwe, said:

“On the principle of the decision, it is common ground that the petitioner must first establish the non compliance. The controversy is only as to the point at which the onus shifts to the respondents to prove that the non compliance, though established, did not substantially affect the election and the result. In my considered opinion whether or not at the end of the case of the petitioner, the onus shifts to the respondents to prove that the non compliance did not substantially affect the election and the result depends on the Court’s own perception of the effect of the non compliance. Where the Court is of the opinion that the non compliance did not and could not have had any impact whatsoever on the election, then the petitioner has failed to shift the onus of proof and the petition thus fails. But where, in the opinion of the Court, the effect of the non compliance is fundamental and has created in the Court’s mind a doubt on the regularity of the election and the authenticity of the ensuing result, then the onus shifts on the respondents. In such a situation, unless the respondents lead evidence to establish that the non-compliances did not affect the election and the result, the petition succeeds. It is my respectful view that in such a situation, proof is not beyond reasonable doubt but on the preponderance of evidence”. (emphasis supplied) See (2005) 2 NWLR (pt 910) 241 at 370 C-G.

Abdullahi PCA concurred on this interpretation at pages 412-413 F-C with a graphic example of whether election was held or not. It is this position that the Supreme Court sustained. Akintan JSC left no doubt on this when in his concurring judgment in the Supreme Court he said at pages 308C of the same report

“I totally disagree with the view that the interpretation given by the court below is in conflict with the stand taken in the Swem V Dzungwe case supra”.

Unfortunately the view that appeals to the tribunals that wish to dismiss petitions has always been that of Obaseki JCI in Awolowo V Shagari, and Belgore JSC in Buhari V Obasanjo which is quoted verbatim at page 2706(Vol VII) of the record of appeal.

Thus in both the Awolowo V Shagari and the Buhari V Obasanjo cases it is clear that the trial Courts had found that substantiality had not been attained unlike in the present case where the trial court did.

On the premises above, we submit that when a court accepts that a substantial non-compliance exists, that court has accepted that the non-compliance is capable of affecting the election and/or the result substantially. Consequently we further submit that when Fabiyi JCA held in the court below resting on the cases of Awolowo V Shagari supra, and Buhari V Obasanjo supra that the petitioner has in the instant case established the substantiality of the non compliance with section 45(2) of the Electoral Act, “but has failed to establish the substantiality of this non compliance on the result of the election”, he was in error of the real ratio decidendi on the issue in those cases.

The two cases were, we submit, misapplied by Fabiyi JCA in his judgment. We further submit that if Fabiyi JCA had followed the substantive decisions in those cases, he would have allowed the petition at that point without more.

4.01E(i)The Supreme Court is empowered to depart from its previous decisions under the following circumstances, if invited to do so:

a. If the decision was given per-in-curiam and it was manifestly erroneous,

b. If rigid adherence to it may perpetrate injustice, or

c. If it unduly restricts the proper growth of the law.

See UTTIH V ONOYIVWE (1991) INWLR 116 at 205.

The appellant hereby specifically invites Your Lordships to depart from the interpretation of the equivalent provisions to section 146(1) of the Electoral Act 2006 as contained in the court’s previous decisions in Awolowo v Shagari (Obaseki JSC) supra and Buhari v Obasanjo(per Belgore JSC) supra as both decisions were rooted in Akinfosile v Ijose which had been earlier overruled by the Court, and which was not consistent with the judgment of the court in the two authorities, thus being manifestly erroneous. We submit that continued adherence to the decision would perpetrate injustice by misplacement of onus on a petitioner contrary to the express provisions of the sections, and perpetuate a situation whereby the electoral body which conducted the election is left with no responsibility to explain anything, thereby fuelling the impunity of continued brazen acts of non-compliance in future elections.

The Supreme Court of Nigeria has in the case of ATIKU ABUBAKAR (2008) 1 SC (PT 11) 77 at 122 (per Tobi JSC) reiterated the fact that we of the Judicial family, are now in the days when Courts of Law do substantial justice.

The learned Justice further said at pages 122-123:

“If Courts of Law are bound to do substantial justice in ordinary civil matters, how much less in an election petition. I should take the question to another level and it is this: if tribunals are bound to do substantial justice in election petitions, how much less, a Presidential Election Petition in which the whole country of Nigeria is one constituency?”

At page 2706 (Vol VIII) Fabiyi JCA Stated:

“It is incumbent on the Petitioner pursuant to the provisions of section 146 Electoral Act to establish that the non compliance established by him substantially affected the result of the election.”

We respectfully submit that interpreting section 146(1) of the Electoral Act in a manner that places a burden on a complaining Party to prove what the Party did not assert, and which absolves the Party that did the act from every responsibility to explain that party’s conduct complained about, is definitely at variance with the principle of having the attainment of justice as the primary objective of any judicial process. We submit that the decision in SWEM V DZUNGWE attains that objective and this Honourable Court is specifically urged to hold that the decision in Swem v Dzungwe (supra) is the applicable and current judicial authority on the issue.

4.01F In the instant case, the Court below had held that the petitioner had established the substantiality of section 45(2) of the Electoral Act 2006 (erroneously typed section 145(2)), but erroneously, we submit, placed the onus on the petitioner to prove the effect of the substantial non-compliance on the result of the election. Proof of non compliance with section 45(2) of the Electoral Act is tantamount to proof of a fundamental illegality which renders the entire process void as no vote would remain if the illegal papers are discounted. We submit that where the process is void the attendant result is equally void and no more needs be proved. See MORGAN V SIMPSON (1975) IQB 151 at 167 where Denning MR stated that if an election was so conducted that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected or not. In other words a defective process could nullify an election without consideration for the effect on the results once substantiality is established. Hence section 140(1) provides for petition against ‘undue election or undue return.’ In a non compliance such as non compliance with 45(2) which touches on a fundamental aspect of the election, the ballot paper, there is even no valid result to be substantially affected, the fundamental illegality having vitiated the entire process. Where therefore your Lordships sustain our submission that the applicable judicial authority is the case of Swem v Dzungwe then your Lordships are urged to resolve issue 2.03 in favour of the appellant, that is that the Onus has shifted to the respondents, resolve issue 2.04 in the negative, that is that onus was wrongly placed on the Appellant when it shifted to the respondents, and in the absence of any contrary evidence from the respondent, and there is none, allow the appeal and nullify the election without more.

4.02  ISSUE 2.05

Whether the power of the President of the Court of Appeal under any section of the constitution of the Federal Republic of Nigeria including sections 248 and 285 extends to the power to issue practice directions for the proceedings of the Court in its original jurisdiction under section 239(1) of the constitution. This issue covers ground 9 of the grounds of appeal which questions the validity of the Election Petition Tribunals and Court Practice Direction 2007.

4.02A(i) At page 2666 (Vol VII) of the record, the Court had held:

“The combined reading of sections 248 and 285(3) of the Constitution empowers the President of the Court of Appeal to make Rules and Regulations for the Practice and Procedure to be followed by the Court of Appeal, not only in its Appellate jurisdiction, while hearing appeals, but also in the Exercise of its original jurisdiction under section 239 of the constitution.” 

Relying on the case of HARUNA V MODIBBO (2004) 16 NWLR (PT900) 487at 591, the Lower Court continued:

“The Practice Direction has a constitutional flavour. It is not ultra vires the powers of the President of the Court of Appeal. The Practice Directions constitute a rule for the guidance and regulation of election petition proceedings as established by the constitution, and it must be obeyed strictly as they (sic) constitute conditions precedent to the presentation and maintenance of an election petition.”

It is most respectfully submitted that their Lordships were in a gross error of Law in their conclusion on the Practice Direction 2007. To appreciate the level of error it is necessary to, for ease of reference, reproduce the two sections from which the Court below drew strength for their conclusion.

4.02B  Section 248 of the Constitution provides:

“Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.” (emphasis supplied)

It was pursuant to this provision that the Court of Appeal rules provided as follows in Order 19 Rule 7:

“The president may at any time, by notice declare a practice of the court as a practice direction, and whenever the declaration was made, such declaration shall be regarded as part of these rules.” (emphasis supplied).

      It is submitted that the expression “these rules” refers to the Rules of the Court of Appeal which is applicable to proceedings in its appellate jurisdiction only. But it is the considered view of their Lordships in the Court below that because the presidential petition proceedings are held in the Court of Appeal, the power of the President of the Court of Appeal to make Rules, and by extension Practice Directions, extends to the making of Practice Directions for the presidential election petition proceedings. With the greatest respect, it is submitted that this cannot be a correct statement of the Law considering the express provision of 239(1) and 285(3) of the constitution, which the court may expound, but definitely cannot expand.

4.02C Section 239(1) of the constitution provides:

“239(1)- Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of law in Nigeria have original jurisdiction to hear and determine any question as to whether –

1. any person has been validly elected to the office of the president or vice-president under this constitution; or
2. the term of office of the President or Vice-President has ceased; or
3. the office of President or Vice-President has become vacant.

Section 285 (3) provides:

“The composition of the National Assembly Election Tribunal, Governorship and Legislative House of Tribunals shall be as set out in the sixth schedule to this constitution.”

It is clear that neither section 239(1) nor section 285(3) of the constitution upon which the Court of Appeal based its decision on this point made any reference either directly or by necessary implication to the President of the Court of Appeal, or the making of any rules or practice direction for any Court or Tribunal. Infact section 285(3) has no connection with the Court of Appeal or Presidential Election petition at all. According to Oguntade JSC in LADOJA V INEC (2007) 7 SC 99 at 138 a Court (Supreme Court) ‘may interpret the constitution but cannot re-write it’. This we submit is what the Court of Appeal tried to do: re-write the constitution of the Federal Republic of Nigeria by extending the Constitutional powers of the President of the Court of Appeal thereby expanding not expounding the provisions of section 248 and 285(3) of the constitution.

4.02D The Court of Appeal would appear to have applied its own mind into the interpretation of the two sections of the constitution instead of construing the intention of the Legislature, which their Lordships were enjoined by several Supreme Court pronouncements to discern and apply only from the express words used in the provision. See AG. Kano State V A-G supra; see also Obi V INEC supra; Oviawe V IRP Ltd supra amongst several other authorities. Section 248 or any other section of the Constitution having not conferred any power on the President of the Court of Appeal to make rules for any other Court than the Court of Appeal, it is submitted that such rules made either as Rules of Court or as Practice Directions cannot be adjunct to or be part of the Rules of any other court. This is more so in election petition matters when paragraph 50 of the First schedule to the Electoral Act has limited the applicable Rules of Court to the Federal High Court (Civil procedure) Rules which are the rules of a Court for which the President of the Court of Appeal has no constitutional competence to make Rules.

4.02E It needs be noted that the Practice Direction in issue in the Haruna V Modibbo case quoted and relied upon by the Court below (an appeal in which Ogebe JCA also presided) was a Practice Direction made in respect of proceedings in the Court of Appeal as an appellate court, that proceeding being an appeal from Adamawa State Election Petition tribunal to the Court of Appeal. The Rules applied therein as superceding that Practice Direction is the Court of Appeal Rules, not the Federal High Court Rules. This fact is put beyond argument with the concurring judgment of Ogebe JCA (as he then was) at page 568 A – C where the learned Justice himself made direct reference to the Court of Appeal Rules (Order 7 Rule 7), and held that the Practice Direction No 2 of 2003 (which was in issue) was part of the Court of Appeal Rules. It is therefore submitted that the case is not in any way applicable to the present circumstance which relates to the Court of Appeal’s first instance proceeding, and not the appellate proceeding. It is further submitted that in its competence under section 239(1) of the constitution the Court of Appeal is no more than an exclusive tribunal for Presidential Election Petition. So constituted, it is in fact and effect a tribunal; hence the Supreme Court so described it in the case of YUSUF V OBASANJO (2004) 9 NWLR (PT 877) 144 at 183 E – F. See also ATIKU ABUBAKAR & ORS V YAR’ADUA & ORS (supra)

where Tobi JSC stated:

“The Federal High Court (Civil Procedure) Rules, 2000 govern proceedings of the Court of Appeal as an election tribunal in Presidential Elections”. (emphasis supplied).

See also Awolowo V Shagari supra and section 140(2) Electoral Act, 2006.

4.02F This Honourable Court is on the premises of the above submissions urged to hold that the Court of Appeal was in error when it held that the Election Petition Tribunals and Court Practice Direction 2007 has “a constitutional flavour” and that it was “not ultra vires the powers of the President of the Court of Appeal”, and having so held, resolve issue 2.05 in the negative, in favour of the appellant, and allow ground 9 of the grounds of appeal.

3. ISSUE 2.09

Whether the Court of Appeal was right in striking out 19 of 20 witness depositions filed with the petition after adopting the depositions unconditionally by order of court on 19/11/07. This issue relates to Ground ten (10)

4.03A(i) At page 2675(Vol VII) of the record, the Court of Appeal is shown to have expunged the depositions of the petitioner’s witnesses filed with the petition save one in these words:

 “The above provisions are not all saving provisions. It is clear from the provision that they are intended to save only affidavits that are defective ‘in form’, not those that are defective in substance. In the instant case, the court is satisfied that the depositions were not sworn before a person duly authorized to administer such in the circumstance. In order to rely on section 85, there has to be an application for leave, and no such leave was obtained by the petitioner to accept the defective depositions or to re-swear them. Consequently, all the depositions made before Val. I. Ikeonu of counsel and Notary Public are inadmissible in evidence and they are hereby expunged from the record of the court.”

4.03A(ii) Earlier in the judgment the court below stated:

 “These documents were admitted by the court based on clear agreement by the parties that all documentary and material Exhibits shall be admitted subject to the right of opposing parties to raise objections to the admission at a later stage. The petitioner cannot, at this stage resile that agreement. More importantly, when a court erroneously admits a potently inadmissible evidence, the court can at any stage of the proceedings, expunge the inadmissible evidence from its record…………..”

From the above statement it is clear that the lower court had treated depositions filed in a proceeding as documentary material ‘exhibits’ tendered in a proceeding which, we submit, they were not. It is also clear that the court had proceeded under the notion that the depositions were adopted (they were never admitted) in the proceeding on condition of a deferred right to object, which, we submit, is also not the correct position. It is submitted that the two misconceptions mentioned supra were the basis of the error of Law about which the Appellant has complained as shall hereinafter be shown, the lower Court having misconstrued the point made by counsel to the appellant before it. It is the opinion expressed by the Judge which is either reversed or affirmed. See UOR V Loko (1988) 2 NWLR (Pt 77) 430 at 441 C-E.

4.03B When this point was raised in the written Address of the Respondents, the Appellant’s counsel in response raised a jurisdictional question whether the Court had the competence at that stage to adjudicate on the question of the mode of swearing the Appellant’s witness’s depositions, considering the mode of adoption of the depositions in the proceeding which was by Order of Court after agreement. This point, though jurisdictional, was totally ignored by the Court of Appeal in its judgment. It is trite law that whenever a jurisdictional question is raised in any proceeding, such question should first be determined. The jurisdictional argument in the Court below may be found in paragraph 36.02B to 36.02B(iv) (page 2352 to 2356 (vol vi) of record) and paragraph 36.02(ii) (pages 2356 - 2557 [Vol (vi)]of the record) of the Appellant’s Counsel’s address in the Court below.

The substance of the jurisdictional question was that

1. the point was not properly before the Court to enable the Honourable Court adjudicate on it,
2. Following the agreement and consequent order of court on 19/11/07 adopting the deposition, which order was virtually imposed on the Appellant, the court was functus officio on that point, and neither party could complain thereafter.

3. raising the issue at that stage was prohibited by 

paragraph 49(2) of the First Schedule of the Electoral Act.

These three points will be taken seriatim and re-address before this Honourable Court for determination.

4.03C(i) Point Not properly before the Court

 On the provisions of Section 83 of the Evidence Act it is conceded that the Court is enjoined not to admit an affidavit which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner. This, it is submitted, means an affidavit sought to be tendered as exhibit (which is admitted) and not a deposition which is written testimony in lieu of oral testimony which is open to cross examination (which is adopted) which the latter is.

The Fundamental diference is that when a deponent of a deposition goes into the witness box to adopt the deposition as his/her testimony before the Court, such a deponent is first sworn; and when that happens the deposition becomes the sworn oral testimony before the court thereby healing any defect in the swearing of the depositions with the deponent thereafter exposed to cross-examination. We submit that the deposition does not thus become an exhibit before the Court like a tendered document or affidavit in support of an application whose deponent is not exposed to a fresh Oath or cross-examination. It is submitted that section 83 anticipates the later affidavit and not a procedural deposition which is normally re-sworn at the adoption. Furthermore it requires proof to decide on section 83 Evidence Act

The word ‘proved’ is statutorily defined under section 2(2)

1. Evidence Act thus:

            “(2) A fact is said to be ‘proved’ when after considering the matter before it, the Court either believed it to exist or considers its existence so probable that a prudent man ought, in the circumstance of the particular case, to act upon the supposition that it does exist”.

Only facts in issue are subject to proof in a proceeding, it is submitted.

4.03C(ii) It is further submitted that the law made use of the word ‘proved’ as the expression of the intent that the matter ought to be made an issue for determination before a Court may decide to admit (not adopt) or not to admit such an affidavit in evidence as an exhibit which a deposition is not. We submit that while parties adopt the Court admits.

In the case of OVIAWE V IRP (1997) 3 NWLR (PT 492)

126 the Supreme Court (per Muhammed JSC) stated that

the intention of the law maker is best found in the ordinary

grammatical meaning of the words used by the law maker

in the enactment of a provision.

In the case of A.G. KANO STATE Vs A.G. FEDERATION

(2007) ALL F.W.L.R. (PT 364) 28 @ 258,

the Supreme Court of Nigeria reiterated its opinion on

interpretation of statutes thus:

“The duty of the Supreme Court and indeed any other Court is to interpret the words of the Constitution and any other statute in their ordinary meaning. Certainly it is not the duty of the Court to go outside the words used in a statute and import an interpretation which may be or is convenient to it or to the parties or to one of the parties.”

4.03C(iii) The question then is this: Is the matter of swearing of the deposition put in issue in this petition before this Honourable Court to enable the Court to engage in a determination of whether it has been proved that depositions before Val Ikeonu Esq. are caught by the provisions of section 83 Evidence Act?

It is submitted that a Court has no competence to adjudicate on an issue not brought before it by the parties by due process. See ORIZU Vs ANYAEGBUNAM (1978) NSCC Vol 11 page 280; IDIKA Vs ERISI 2 (NWLR) (PT 78) 563

It is further submitted that issues of fact are raised before

a Court either by pleading, or by interlocutory application

in the course of the proceeding, but definitely not from the

Bar in a final address. The 4^th and 5^th Respondents in their

Reply filed on 15/8/07, after service of the petition and the depositions in issue on them, raised a four point preliminary objection in paragraph 2 at page 2 of the said reply. None of the four was a challenge to any of the depositions which had been served on all the respondents. (See page 290(Vol 1) of the records).

Consequently, it is submitted that it was not raised in the pleadings of the 4^th and 5^th Respondents or any other Respondents for that matter in the Court below. It was also not the subject of any application oral or written in the proceeding.

On 23/10/07 Emmanuel Iwuamadi testified, adopted his depositions and was cross examined by counsel for the Respondents. There was no objection to the adoption of his deposition and no reservation of any objection to be made thereafter against the deposition. See page 2539 & 2543-2542 (Vol VI) of record of appeal.

4.03(iv) But in the course of his cross examination counsel asked the question which elicited for the first time the facts of before whom the depositions were sworn. But could he legally do so?

It is submitted that the limits of cross examination is relevancy as provided in section 189(2) Evidence Act which says:

“189

(1)………………………………………………..

(2) The examination and cross examination must relate to relevant facts, but the witness need not be confined to facts to which the witness testified on his examination in chief.” (emphasis supplied)

Relevant facts are, my Lords, pleaded facts, and so said Onalaja JCA in CHIGBU Vs TONIMAS LTD (1999) 3 N.W.L.R. (PT 593) 115 at 144C-D where the Learned Justice after quoting sections 189(2) and (3) Evidence Act held:

“Relevant facts under section 189(2) Evidence Act means pleaded facts under our civil justice and jurisprudence. Once relevant fact has not been pleaded a party shall not be allowed to cross-examine on unpleaded fact as to allow such a situation constitutes element of surprise which is contrary to our concept of fair hearing that any person be he a party or witness coming to Court under the rule of fair hearing of audi alteram partem must know in advance what he is coming to Court to say or defend…” (emphasis supplied)

See also ITA Vs EKPEYONG (2001) 1 NWLR (PT 695) 587 @ 614G where at Ekpe JCA said:

“Again it is a correct principle of Law that a document or evidence extracted from a party by his adversary under or during cross-examination cannot be used against the party if the material Fact relating to the evidence or the document was not pleaded by the party seeking to make use of it” (emphasis supplied)

In OTUO V NTEOGWUILE (1996) 4 NWLR (PT 440) 56 at 72 the Court of Appeal also decided that an unpleaded fact cannot be elicited under cross-examination by a party asking to use it. These are Court of Appeal judgments which were cited to the court below and which that court should have considered binding on it since no one invited the Court to depart therefrom. We submit that it is not the law that Courts could abandon or ignore their previous decisions save where formally called upon to do so. See University of Lagos V Aigoro (1984) NSCC 745 at 755. Fortunately, the Supreme Court has taken a stand on this point of law in some decisions in OKWEJIMINOR V GBAKEJI & ANOR. (2005) 5 NWLR (pt 1079) 172 at 196C-G Tabai JSC put a seal of confirmation on that principle of law when the Learned Justice stated:

“In the first place, the evidence elicited under cross-examination on which the Court of Appeal based its findings quoted above was not founded on issues raised in the pleadings. I am therefore persuaded by the submission of Learned Counsel for the appellant that they go to no issues for it is settled that evidence obtained in cross-examination but on facts not pleaded is inadmissible. See Dina V New Nigerian Newspapers ltd (1986) 2 NWLR (pt 22) 353; Aguocha V Aguocha (1986) 4 NWLR (pt 37) 566” (emphasis supplied).

Onnoghen JSC in his concurring judgment drove the nail of finality on this principle in our Law of Evidence when the Learned Justice stated:

“When a fact is not pleaded, it cannot be relevant to a determination of a case. ……………………………..

It has been argued very forcefully as is usually the case, that under cross-examination the sky is the limit and that evidence elicited therefrom can be used in the proceeding. While that proposition remains good law and of general application, it is, like every general principle of law, subject to exception. Since the principle fall (sic) within the Law of Evidence, it follows that the principle of relevance in admissibility of evidence in any proceeding is crucial and the fact, any fact which the said evidence is intended to prove or establish must have been pleaded, otherwise its grounds to no issue must equally be taken into consideration; it does not matter whether the said evidence through evidence in-chief, or under cross-examination the fact must be pleaded. It therefore follows that there is a limit to cross-examination which is designed to ensure that only relevant and pleaded facts are admissible and can be use of in the proceeding”. (emphasis supplied) 

The Court of Appeal was therefore in error when it based the expunging of 19 witness depositions filed by the Appellants on the unpleaded fact of before whom they were sworn, which facts were unpleaded.

Since the respondents were served the depositions together with the petition, they needed to raise the issue of their validity or otherwise in their reply in order to give the Appellant notice of what he was coming to face in court. But they failed to do so.

4.03C(v) On the premises of all the submissions supra it is further submitted that whatever fact was elicited from Emmanuel Iwuamadi under cross-examination on the unpleaded issue of the person before whom the depositions were sworn, is illegal evidence and should not have been lawfully applied by Court as proof to determine the issue at stake. This Honourable Court is urged to expunge such illegally elicited evidence, and reverse any conclusions of the lower Court based on it.

4.03D Court Was Functus Officio & Parties Estopped

We submit that the Court below was functus officio on the issue of the deposition, and even the 4^th and 5^th Respondents were particularly estopped by Section 151 Evidence Act from raising it again in that proceeding. This is because on 19/11/07, the Court made an order adopting the depositions filed by the Petitioner, and subsequently did the same for the Respondents. It ought to be noted that the order of 19/11/07 in respect of the Petitioner’s depositions was made following objection by counsel for 4^th and 5^th Respondents, Chief Wole Olanipekun, to the oral testimony of Salihijo Tahir one of the Appellant’s deponents and his National Collation agent who had already taken the witness stand, on the ground that counsel and the Court had agreed that depositions be adopted formally, and that there would be no cross-examination. This, counsel for the Petitioner had resisted strenuously alleging a plot to ambush his client on technicality. After all the argument, the Honourable Court ruled in these words in favour of the 4^th and 5^th Respondents:

“Court: Counsel on all parties (sic) at pre-trial conference agreed that depositions of witnesses shall be adopted without cross-examination. Accordingly all the witnesses’ depositions in petitioner’s petition are hereby adopted” (p.2574 Vol VI)

The Court having so ruled, it is with respect submitted that their Lordships could not legally render nugatory the effect of their ruling in the same proceeding particularly considering the fear of ‘ambush’ raised by Petitioner’s Counsel which appears now, in the face of the submissions in the 4^th and 5^th Respondents’ Written Address in the court below, to be real.

In the case of NNAJIOFOR Vs UKONU (1985) 2 NWLR (PT 9) 686 at 706G, the Supreme Court (per Oputa JSC) said:

“Delay or not delay, the trial Judge in Lawal’s case had no legal justification to alter the effect of his own ruling on the issue previously decided by him in the course of the same proceeding”

See also UNIVERSITY OF LAGOS V AIGORO (1984) NSCC 745 at 755.

It is submitted that since the Court enjoys a statutory discretionary power to use or not to use a defective affidavit by a combination of sections 83 and 84 of the Evidence Act, and the discretion has been exercised at the strenuous instance of the 4^th and 5^th Respondents, and equally strenuous resistance of the Appellant who conceded only on the ground that the agreement be put on record (page 2574), the issue should have been regarded as closed before their Lordships. If the parties with the support of the Court could agree to dispense with cross-examination the absence of which could render a testimony void, we submit that it was within their competence to agree to dispense with as they did, the issue of the person before whom the depositions which on adoption would be subject to re-swearing, were sworn. It is note worthy that nobody challenged or objected to the facts in the depositions. The issue was whether the adoption by order was right or wrong. The adoption was an agreement on procedure backed by an unconditional Order of Court. We submit that, the 4^th and 5^th Respondents and their Counsel as well as the other Respondents should not have been allowed, as the court below did, to approbate and reprobate on the issue. It is further submitted that where parties agree or acquisce to a particular procedure, none of them may complain later. In the case of NOIBI V FIKOLATI (1987) 1NWLR (pt 52) 619 at 626 Belgore JSC (as he then was) held:

“As there was no request nor order made for pleadings, the parties including the appellant acquiesced in the trial without the necessity for pleadings, and the trial is not vitiated”.

Uwais JSC (as he then was) in his concurring judgment said:

“It is settled that a party cannot take advantage of an irregularity which he has acquiesced to ……”

More recently, in AMAECHI V OMEHIA (2008) 1 SC (pt1) 36 at 103, Oguntade JSC in giving the reasons for the judgment on 18/1/08 stated:

“From the extract of proceeding reproduced above, it is apparent that all the parties including INEC, Omehia and PDP agreed that Exhibits A – F be put in evidence by consent. None of them afterwards disputed the content of the said document. The Judgment of the trial Court was based on the said Exhibits A – F not on admissions made by the parties. The parties had chosen to follow a procedure which was not the usual procedure. ………”

The learned Justice had earlier at page 102 thereof stated:

“I think that the learned senior counsel did not bear in mind that the evidence before the trial High Court was not in the form of admissions by the respondents but rather in the form of evidence which parties had agreed to be undisputed” (emphasis supplied)

This, we submit, was the character and nature of the depositions after the agreement and Order adopting them as evidence without cross-examination which, it is submitted, is legally more serious than the issue of the person before whom they were originally sworn. 

We therefore submit that after forcing the appellant into a procedure that denied him the opportunity of having his deposition witnesses re-sworn, Respondents were estopped from applying the same defect against the appellant, and the Court lacked the competence to reopen the Issue for them.

4.03E Objection Prohibited By Paragraph 49(2) Of First Schedule To The Act.

Paragraph 49(2) of the first schedule to the Act provides:

“An application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity, shall not be allowed unless made within a reasonable time and when the party making the application has not taken a first step in the proceedings after knowledge of the defect.”

Consequently, assuming, without conceding, that there was a defect in the depositions or their adoption in the proceeding, it is submitted that the issue could not be entertained at the Address stage in the Court below, paragraph 49(2) of the First Schedule being sui generis in which case it acquires a special peculiarity and must be so applied. See ORUBU Vs NEC (1988) 5 NWLR (PT 94) 323 at 367H-368A. (Per Karibi-Whyte JSC)

The Court in the circumstance had no competence to allow what the Respondents are seeking as they indeed not only filed their reply after service of the depositions, but raised preliminary issues which did not include this point. See page 290(Vol. 1). Furthermore when PWI testified and adopted his deposition which was sworn before Val Ikeonu Esq. there was no objection. The objection was thus not timeous.

4.03F Finally, on this point, it is submitted that the Courts have distanced themselves from deciding election petitions on technicality instead of the merit of the petition. In the case of EGOLUM Vs OBASANJO (1999) 7 NWLR (PT 611) 355 at 387E-F. Ogundare JSC said on the issue of technicality in Election Petitions:

“The course of justice has moved a long way from the decisions in the cases cited to us by learned leading counsel for the cross-appellant. The emphasis is now more on doing substantial justice rather than on technicalities which the cross-appeal seems to be all about.”

Throwing out relevant evidence in the circumstance it was done in respect of the depositions filed with the petition, we submit, is a negation of the principles of substantial justice, particularly as it amounts to the respondents taking advantage of a crises they had instigated which the Supreme Court had in the case of AFRICAN PETROLEUM V OWODUNMI (1991) 8 NWLR (pt 210) 391 at 421 decided should not be allowed. See also GREEN V GREEN (1987) 3NWLR (pt 61) 480 at 517A.

4.03G This Honourable Court is urged to hold that the lower Court was in error when it decided to adjudicate afresh on the question of Petitioner’s witness depositions after the Order made on 19/11/07. But assuming without conceding that the point could be raised, is the decision of the court on the point sustainable in law?

4.03H(i) In arriving at the decision appealed against the Court of Appeal rested on the following points:

1. That the depositions were documents admitted in evidence on agreement of parties;
2. That the agreement included deferred right to address on the competence of the depositions later; and
3. That the Counsel to the appellant could not resile from the agreement.

These points are contained in the passage quoted in paragraph 4.03A supra (page 2674 Vol. VI)

In the case of UOR V LOKO (1988) 2 NWLR (PT 77) 430 at the Supreme Court per Karibi-Whyte JSC said:

“An appeal is against the judgment of the court and a challenge of its correctness on the grounds of Law, mixed law and facts or on facts simpliciter as the case may be ………………………….. it is the opinion appealed against which is affirmed or reversed.”

4.03H(ii) It is submitted that the statement by the Court now complained against was made for the purpose of avoiding the issue of jurisdiction made supra because at no time during the pre-hearing session was it agreed that depositions, or any document for that matter were to be adopted (or admitted) in evidence as the case may be with an agreement that any point of objection be addressed later. The so - called pre-hearing session ended at the proceeding on 16/10/07 when the Court recorded the Pre-Hearing Report as follows at page 2516 (Vol Vi) of the record:

“Court: By virtue of paragraph 3(10) of the Election Tribunal and Court Practice Directions 2007, it is hereby reported that the respective parties will not call more than the witnesses indicated by them and in all the parties shall conclude their cases within three months from today. From today hearing will proceed from day to day and adjournment will only be at the instance of the Court” (emphasis supplied)

Counsel for Appellant had indicated that he would call 150 witnesses and would require 30days to do so. See page 2514 (Vol VI).

4.03H(iii) It is clear from this report that the decision at the pre-hearing session was that parties were to call oral evidence of their witnesses with the petitioner being allocated 30 days for that purpose. How then could there have been a ‘clear’ agreement that witness’ depositions should be adopted without cross-examination at that time?

4.03H(iv) The fact that there was no agreement is further confirmed by the ruling of the Court on 18/10/07 while refusing the Appellant’s application to file additional witness depositions for the witnesses already agreed to be called.

          Ogebe JCA (presiding) had stated:

“I find it strange that an application of this sort is being brought at this early stage when the 150 witnesses listed by applicant have not been taken. When we have taken off hearing witnesses and there is need to call additional witnesses due consideration will be given to it. For now I see no merit in the motion and it is accordingly refused”.(emphasis supplied) See page 2522(Vol VI)

This Statement also does not bear out what the Learned Justice in the Court below said about the adoption of depositions.

4.03H(v) In the light of the two rulings by the Court on 16/10/07 and 18/10/07, one wonders how the Court’s statement that the documents (meaning the depositions) “were admitted by Court based on clear Agreement by the parties that all exhibits shall be admitted subject to the right of the opposing party to raise objection to the admission at later stage” originated at the pre-hearing session.

Definitely the learned Justice had confused the agreement on tendering exhibits on 23/10/07 (which the Respondents resiled on record same day as shall be shown hereafter) with the adoption of the Petitioner’s depositions which was foisted on the Appellant by Court Order after a conditional agreement of Appellant’s Counsel on 19/11/07 thus:

“Counsel on all parties at pretrial conference agreed that deposition of witnesses shall be adopted without cross-examination. Accordingly all witnesses’ depositions in petitioner’s petition are hereby adopted”(emphasis supplied) See page 2574.

There was no reserved condition attached to the Order as borne out by the ruling quoted (supra)

It was on this premises that Counsel had submitted that the Court below was functus officio and could not sit on appeal over its own decision in the same proceeding, but the submission was ignored by that Court. This Honourable Court is respectfully urged to consider and sustain the argument that the court below had no bases on record to take the position or conclusion as it did in the judgment.

4.03H(vi) The decision of the Court below having been reached without competence, and having been based on facts that are overtly inconsistent with the record of proceedings, this Honourable Court is urged to resolve Issue 2.09 in the negative, against the Respondents and allow ground 10 of the grounds of appeal; and having done so restore the expunged depositions and apply same in the evaluation exercise before this Honourable Court, the court below having failed to do so.

4.04  ISSUE 2.07

Whether the Court below was right when on 19/11/07 it rejected the Petitioner’s inspection witness depositions already filed before it with the Leave of Court. This issue is distilled from ground 16 of the grounds of appeal.

4.04A(i) On 19/11/07 the Court, in refusing the application to regularize the depositions of inspection witnesses stated:

I have listened to the argument of counsel on all sides and it is my view that what is sought to be tendered as depositions of witnesses are actually an analysis of the election documents with the opinion and legal conclusions of the witnesses. These witnesses merely inspected the documents. They are not the makers and have no legal competence to comment on them. On the other hand, counsels on all sides are free to comment on the documents which were tendered from the bar to assist the Court in their final addresses. This point was even conceded by Chief Olanikpeku for 1^st and 2^nd Respondents. (sic)

This application is unnecessary and has no support in the Practice Directions and it is accordingly refused”(emphasis supplied)

This ruling is copied at page 2573 (Vol VI) and was sequel to an application to regularize the depositions of the Appellant’s election document inspection witnesses. The circumstances that led to the application to regularize the witness depositions are here-under stated.

4.04B On 30/10/07, the Appellant’s counsel called for chamber conference (p.2554) in the presiding Justice’s chambers whereat he stated that he was no longer comfortable, with the refusal of his application to file additional witness depositions on 18/10/07, and stoppage of the oral testimony of Emmanuel Iwuamadi PW1 on 23/10/07. Counsel therefore insisted on inviting at least his inspection witnesses into the witness box to tender the documents they obtained from the 1^st and 2^nd Respondents following an Order of Court made under Section 159(1) of the Electoral Act on 14/5/07, and for those who already had witness depositions to adopt them formally under oath and face cross-examination. At the end of the discussions the counsel for the Appellant was, as a compromise, granted opportunity to file the additional depositions of the inspection witnesses, and on resumption of hearing, and, after the tendering of the available documents for the day sought an adjournment to “a date convenient to the Court to put in our depositions on inspection” (page 2555(vol VI)). The Honourable Court granted the application tersely thus:

“The Respondents having no objection, the petitions are adjourned to 12/11/07 for continuation”

The adjournment from 30/10/07 to 12/11/07 instead of from day to day was to provide the appellant the requested convenient period within which to file the inspection witnesses’ depositions.

4.04B(i) But fortunately for the Appellant two other Justices had more comprehensive notes on the adjournment which very clearly showed that the adjournment was to enable the Appellant to file the depositions of his documents inspection witness.

Fabiyi J C A adjourned in their words:

“Counsel for Respondents’ have no objection with liberty to file corresponding depositions. Adjourn (sic) to 12/11/07 for continuation of hearing by common consent” (emphasis supplied) (page2559.)

Abba Aji J C A adjourned proceeding with the most comprehensive notes on record thus:

“All Respondents agreed as discussed and will consequently request to file similar depositions. Agabi: I have no objection. As agreed by counsel at the meeting,