GUARDIAN

Saturday, March 15, 2008              

Atiku Goes To Supreme Court
By Muyiwa Adeyemi (Lagos) and Lemmy Ughegbe (Abuja)

FORMER Vice President Atiku Abubakar yesterday put paid to speculations that he had dumped his plan to appeal against the Appeal Court verdict on the April 21, 2007 presidential polls.

The Presidential Election Petitions Tribunal had on March 8 validated the election of President Umaru Musa Yar'Adua and dismissed the petitions by Atiku and the All Nigerian Peoples Party (ANPP) presidential candidate, Gen. Muhammadu Buhari.

While Buhari filed his appeal against the ruling at the Supreme Court last week the anxiety over Atiku's silence continued, until yesterday when the Action Congress (AC) presidential candidate ended the waiting game.

Atiku in his appeal filed at the apex court in Abuja challenged the entire judgement whereof the tribunal held that the AC candidate did not adduce any shred of evidence to prove his claim that the election was a ruse.

Atiku wants the Supreme Court also to nullify the presidential election and set aside the Court of Appeal ruling on February 5, 2008 rejecting as inadmissible in evidence, the defendant's post election Report marked "Exhibit 2008 rejected", and admitting the same in evidence for consideration in the new appeal pursuant to Section 22 of the Supreme Court Act, and for such order or further orders as the Supreme Court pursuant to Section 22 of the Supreme Court Act may deem fit to make in the circumstances

Atiku's legal team asked the apex court to set aside the judgment of the Justice James Ogenyi Ogebe-led panel on 38 grounds.

Interestingly, Ogebe is now a Justice of the Supreme Court.

Atiku argued that the Justices of the appellate court misdirected themselves on the facts when at the introductory part of their judgment at page 60 they held that 'the 1st respondent scored a total of 24,638,063 while the 1st Petitioner scored 2,637,848 votes.

The lower court came to the conclusion as to the respective scores of the 1st petitioner and the 1st respondent without evaluating or resolving the evidence as to whether those votes were allocated as alleged by the petitioners in paragraph 8 of the Petition or actually scored as pleaded in paragraph 9 of the 1st and 2nd respondents' reply and paragraph 2 of the 4th - 808th respondents'reply," Atiku said.

He said there were at least three different versions of the result produced by the 4th Respondent and tendered by the Petitioners, which were conflicting

According to him, Exhibit EP/3/P27 posted on INEC website after the declaration of Yar'Adua as winner showed that no score was recorded for the petitioner at the election.

The lower court, he said, did not reconcile the conflicting versions in making the finding that Yar'Adua scored 24,638,063 while he got scored 2,637,848 votes.

The AC flagbearer said when properly evaluated, the evidence credibly showed that the total votes credited to the 1st and 2nd Respondents were allocated and were not lawful votes.

On ground two of his plea, Atiku stated that the learned justices of the Court of Appeal erred in law when they held at page 67 of the judgment as follows:

"It is settled law that issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case in appropriate circumstances acts as issue estoppel against the second one," and thereby occasioned a serious miscarriage of justice.

On the particulars of error, Atiku declared that the court failed to distinguish between res judicata and issue estoppel.

The settled position of the Supreme Court that issue estoppel applies even in the same case once an issue has been raised and distinctly determined between the parties as supported by Cardoso VS Daniel (1986) 2 NWLR (PT. 20) SC 1 AT 17 cited to their Lordships and several others were totally ignored in reaching their decision, he said.

The court, Atiku insisted, had already decided that the objection was contrary to paragraph 49 (2) of the first schedule to the Electoral Act 2006 and was not open to the respondents

The former VP also accused the Court of Appeal judges of misdirecting themselves in law when they held at pages 67-68 of the judgment thus:

"It should be reiterated that the issues of exclusion of the petitioners and the juristic personality of the 5th respondent were never determined in the ruling handed out on 20th September, 2007. It is extant in the stated ruling that substantive issues were ordered to be taken on merit at the hearing of this petition. In effect, estoppel does not avail the Petitioners. This objection is hereby overruled."

Citing the particulars of the misdirection, Atiku said the reason for the decision of 20th September, 2007 included failure of the objection to meet the requirements of paragraph 49(2) of the first schedule to the Electoral Act, 2006.

"Having held by its ruling of 20/9/07 that the Respondents were precluded from taking the objection so belatedly the Court of Appeal could not validly or competently revisit the said issues or entertain same.

"Pleading facts in the alternative is purely procedural and not a substantive issue as wrongly reasoned in the judgment," he said.

He continued: "The learned Justices of the Court of Appeal erred in law and exceeded their jurisdiction in entertaining and sustaining the 1st and 2nd respondents as well as the 4th-808th Respondents' objection to the competence of the Petition and alleged improper joinder of the 5th respondent which had earlier been overruled in the course of trial.

"The entire ruling which was revisited was already subject of an appeal to the Supreme Court in Appeal UMARU MUSA YAR'ADUA & ORS VS ALHAJI ATIKU ABUBAKAR.

In reaching this decision, the court failed to resolve the issue of whether or not it can still exercise jurisdiction on an issue, which is the subject matter of an appeal to the Supreme Court as contended by the petitioners/appellants before their lordships.

"The revisit undermined the exclusive appellate jurisdiction vested in the Supreme Court under section 233 of the Constitution of the Federal Republic of Nigeria, 1999.

"The learned Justices of the Court of Appeal erred in law when they held at pages 71-72 that: "... while reliefs or prayers can be made in the alternative in an election petition, a ground of exclusion cannot be made in the alternative with other grounds. A ground of exclusion in an election petition stands clearly on its own. It is mutually exclusive of other grounds.

It is instructive to note it here that in the case of Buhari vs Obasanjo (supra), the alternative ground therein is not in respect of unlawful exclusion. It is crystal clear from the foregoing that the petitioners are approbating and reprobating at the same time. This should not be allowed since it is frowned at by the law. Accordingly, this issue is resolved in favour of the respondents against the petitioners. We find that having relied on the ground of valid nomination and unlawful exclusion, the petitioners are, ordinarily, precluded from relying on any other ground under section 145 (1) of the Electoral Act, 2006 and the alternative grounds ought to be struck out."

"The court failed to give a proper and holistic construction of section 145 (1) of the Electoral Act, 2006 as expected of it and thereby reached an erroneous decision.

"The lower court focused on the construction of the word 'or' to the exclusion of the word "any" used in the opening of section 145(1) of the Electoral Act, 2006 and which if properly construed to the effect that where "any" is used in relation to many items it means that one or more of the items could be chosen as decided in Awuse v ODILI (2003) 19 NWLR (PART 851) and TEXACO PAWATAA INC VS SHELL P.D.C.N. LTD (2002) 5 NWLR (PT 759) 209.

Finally, Atiku stated that the learned justices erred in law when they relied on the decision of this court in Amaechi VS INEC (2007) 18 NWLR (Pt 1065) 105 to hold that since votes cast at an election are for the sponsoring political party, the inclusion of the name and photograph of the candidate appears to be of no moment.

No date has been fixed for hearing.

INDEPENDENT

http://www.independentngonline.com/

Atiku Asks Supreme Court To Void Yar’Adua’s Election

Former Vice President and Presidential Candidate of the Action Congress (AC]), in the April 2007 elections Atiku Abubakar Friday filed an appeal at the Supreme Court seeking to void the election of President Umaru Yar’Adua.

Atiku’s appeal is challenging the verdict of the Presidential Election Petition Tribunal of March 8, 2008, which upheld the election of Yar’Adua on the ground that he did not present sufficient evidence to prove his claim that the election was massively flawed.

In a notice of appeal filed by Atiku’s legal team, he asked the apex court to set aside the judgment of the Justice James Ogenyi Ogebe-led panel on 38 grounds.

The grounds and particulars of error include the following:

Ground 1: Misdirection On The Facts

1) The learned Justices of the Court of Appeal misdirected themselves on the facts when at the introductory part of their judgment at page 60 they held that ‘the 1st Respondent scored a total of 24,638,063 while the 1st Petitioner scored 2,637,848 votes respectively’

Particulars of Misdirection

a) The lower Court came to the conclusion as to the respective scores of the 1st Petitioner and the 1st
Respondent without evaluating or resolving the evidence as to whether those votes were allocated as alleged by the Petitioners in paragraph 8 of the Petition or actually scored as pleaded in paragraph 9 of the 1st and 2nd Respondents’ Reply and paragraph 2 of the 4th – 808th Respondents’ Reply respectively.
b) There were at least three different versions of the result produced by the 4th Respondent and tendered by the Petitioners which were conflicting
c) Exhibit EP/3/P27 posted on the website of the 4th
Respondent after the declaration of the 1st Respondent as winner showed that no score was recorded for the 1st Petitioner at the election.
d) The lower court did not reconcile the conflicting versions in making the finding that ‘the 1st
Respondent scored a total of 24,638,063 while the 1st
Petitioner scored 2,637,848 votes respectively’.
e) Properly evaluated the evidence credibly showed that the total votes of 24,638,063 credited to the 1st and 2nd Respondent were allocated and were not lawful votes.

Ground 2: Error In Law

2) The learned Justices of the Court of Appeal erred in law when they held at page 67 of the Judgment as follows:
‘It is settled law that issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case in appropriate circumstances acts as issue estoppel against the second one’ and thereby occasioned a serious miscarriage of justice.

Particulars Of Error

a) The court failed to distinguish between resjudicata and issue estoppel.
b) The settled position of the Supreme Court that issue estoppel applies even in the same case once an issue has been raised and distinctly determined between the parties as supported by CARDOSO V DANIEL (1986) 2 NWLR (PT. 20) SC 1 AT 17 cited to their Lordships and several others were totally ignored in reaching their decision.
c) The court had already decided that the objection was contrary to paragraph 49 (2) of the first schedule to the Electoral Act 2006 and was not open to the Respondents to take.
d) The Court of Appeal was bound by that decision as constituting issue estoppel and could not have reopened the matter.

Ground 3: Misdirection In Law

3) The learned Justices of the Court of Appeal misdirected themselves in law when they held at pages 67-68 of the Judgment thus:
“It should be reiterated that the issues of exclusion of the Petitioners and the juristic personality of the 5th Respondent were never determined in the ruling handed out on 20th September, 2007. It is extant in the stated ruling that substantive issues were ordered to be taken on merit at the hearing of this petition.
In effect, estoppel does not avail the Petitioners.
This objection is hereby overruled’

Particulars of Misdirection

a) The reason for the decision of 20th September,
2007 included failure of the objection to meet the requirements of paragraph 49(2) of the First Schedule to the Electoral Act, 2006.
b) Having held by its ruling of 20/9/07 that the
Respondents were precluded from taking the objection so belatedly the Court of Appeal could not validly or competently revisit the said issues or entertain same.
c) Pleading facts in the alternative is purely procedural and not a substantive  issue  as wrongly reasoned in the judgment. 

PUNCH

Atiku files appeal against Yar’Adua’s election at Supreme Court

The presidential candidate of the Action Congress, Alhaji Atiku Abubakar, has filed an appeal at the Supreme Court in Abuja to contest the decision of the Presidential Election Tribunal which upheld President Umar Yar’Adua’s victory in the April 2007 presidential election.

Photo file

Alhaji Atiku Abubakar

In a 42-page Notice of Appeal filed by his lawyer, Rickey Tarfa, SAN, Atiku is asking the apex court to overturn the decision of the Court of Appeal and nullify the result announced by the Independent National Electoral Commission.

Atiku’s appeal contained 49 grounds alleging errors of law, errors of facts and misdirections in law.

The former vice-president, who delayed the filing of his appeal on the grounds that he needed time to study the appeal court’s judgment, alleged miscarriage of justice at the lower court. He stated that there was political colouration to the judgment.

He further stated that he would file more grounds of appeal after he had obtained the record of appeal.

Joined in the suit as co-appellants are Senator Ben Obi, and the AC. The Peoples Democratic Party, INEC, the Chairman of INEC, Prof. Maurice Iwu, and 804 others were joined as co-defendants.

The ex-VP is also asking for an order setting aside the ruling of the Court of Appeal delivered on February 5, 2008, which rejected a post-election result tendered by him as exhibit as inadmissible evidence.

THIS DAY

Atiku Takes Case to Supreme Court

•Seeks nullification of Yar’Adua's election

From Funso Muraina in Abuja, 03.15.2008

The candidate of the Action Congress (AC) in the April 2007 presidential election, Alhaji Atiku Abubakar yesterday filed an appeal at the Supreme Court against the judgment of the Court of Appeal which affirmed the election of President Umar Musa Yar’Adua of the Peoples Democratic party (PDP) as the winner of the April 2007 presidential election.

Atiku in his appeal asked for an order of the apex court to set aside the decision of the Court of Appeal, which dismissed his petition.

He also demanded another order nullifying the presidential election held on the 21st day of April, 2007 and grant the prayers of the petitioners in the petition.

He is further demanding an order setting aside the ruling of the Court of Appeal “rejecting as inadmissible in evidence, the fifth defendant’s post election report marked “EXHBIT 2008 Rejected” and admitting the same in evidence for consideration in this appeal pursuant to section 22 of the Supreme Court Act.

Atiku said in his appeal that the learned justices of the Court of Appeal misdirected themselves on the facts when at the introductory part of their judgment on page 60, they held that “the first respondent (Yar’Adua) scored a total of 24,638,063 while the first petitioner (himself) scored 2,637,848 votes respectively.”

He said the lower Court came to the conclusion on the respective scores of the first petitioner and the first respondent without evaluating or resolving the evidence as to whether those votes were allocated as alleged by the petitioners in Paragraph 8 of the petition or actually scored as pleaded in Paragraph 9 of the first and second respondents’ reply.

"There were at least three different versions of the results produced by the fourth respondent (INEC) and tendered by the petitioners which were conflicting (Exhibit EP/3/P27) and posted on the website of the fourth respondent after the declaration of the first respondent as winner, showing that no score was recorded for the first petitioner at the election.

“The lower court did not reconcile the conflicting versions in making the finding that the first respondent scored a total of 24,638,063 while the first petitioner scored 2,637,848 votes respectively."

Filed by Emeka Ngige, SAN, the appellant said if his claims were properly evaluated, the evidence credibly show that the total votes of 24,638,063 credited to the first and second respondents were allocated and were not lawful votes. 

The appellant said: "The learned justices of the Court of Appeal erred in law when they held on page 67 of the judgment as follows: “It is settled law that issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case in appropriate circumstances acts as issue estoppel against the second one,” thereby occasioning a serious miscarriage of justice.’

Atiku argued that the INEC chairman, Professor Maurice Iwu should have been made a party to the suit and that it was wrong for the lower court to remove him and render all evidences against him useless.

According to him, the learned justices of the Court of Appeal erred in law and exceeded their jurisdiction in entertaining and sustaining the first and second respondents as well as the fourth to 808th respondents’ objection to the competence of the petition and alleged improper joinder of the fifth respondent which had earlier been overruled in the course of trial.

Atiku said: "Having found that from the date of the nominations till the 16th of April, four days before the election of 21st April 2007, the first petitioner was unlawfully excluded; it was no longer open to the lower court to hold that he was not effectively unlawfully excluded, from the election.”

On the ballot papers used which were not serialised, Atiku maintained that the lower court should not have ignored non-compliance with the Electoral Act 2006, saying the use of non-serialised ballot allowed rigging which worked against the appellant.

Atiku argued in his appeal: "The key to the validity of any election is the ballot paper used by voters to exercise their right to vote and if, as in this case, there is substantial and deliberate non-compliance with the provision relating to the printing of ballot papers, the non - compliance without further proof is enough to nullify the entire electoral process.

"The requirement for serialization of ballot papers is a prerequisite requirement which is further confirmed by the guidelines made pursuant to the Electoral Act that the quantity of ballot papers supplied to electoral officers must be receipted for in forms EC 40 series which should state the quantities and serial numbers of the ballot papers so received and that the quantity of unused/returned ballot papers should also be stated with their serial numbers.

"Without serialized ballot papers, it is impossible to relate the ballot papers used in any state, local government, ward and polling booths, thus making it impossible to check fraud and conduct an audit trail on the use of ballot papers for the purpose of accountability and audit trail."

The AC presidential candidate claimed that many eligible voters were disenfranchised as a result of the shifting of the period of voting, adding that the lower court did not consider evidence presented by the petitioners showing that in several polling stations across the country, voting did not take place at all on the 21st of April 2007, while in some others voting took place between 3 p.m. and 5 p.m, not lasting for more than two hours.