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For the Buhari Appeal Document, see the PDF file: http://www.saharareporters.com/Buhari_petition_%20COMPILED%20AND%20COMPLETE.pdf The Atiku Appeal document will be found below.
HOLDEN AT ABUJA SUIT NO: SC PETITION NO: CA/A/EP/3/07 THE ELECTION TO THE OFFICE OF PRESIDENT OF THE FEDERALREPUBLIC OF NIGERIA HELD ON 21st APRIL, 2007
PETITIONERS/ APPELLANTS 2. SENATOR BEN OBI 3. ACTION CONGRESS (AC) AND
1. ALHAJI UMARU MUSA YAR’ADUA 2. DR GOODLUCK JONATHAN 3. PEOPLES DEMOCRATIC PARTY (PDP)
RESPONDENTS COMMISSION (INEC) 5. PROFESSOR MAURICE MADUAKOLAM IWU (CHAIRMAN, INEC) 6. CHIEF ELECTORAL COMMISSIONER & 804 OTHERS NOTICE OF APPEAL (ORDER 8 RULE 2) SUPREME COURT RULES, 1985 (AS AMENDED) TAKE NOTICE that the Petitioners/Appellants being dissatisfied with the decision of the Court of Appeal Coram: Honourable Justices James Ogenyi Ogebe, Afolabi Fabiyi, Abubakar Jega Abdulkadir, Uwani Musa Abba Aji, and Raphael Chikwe Agbo, JJCA as contained in their judgment dated the 26th day of February, 2008 at pages 59-99 doth hereby appeal to the Supreme Court of Nigeria upon the grounds set out in paragraph 3 and will at the hearing seek the reliefs set out in paragraph 4. AND the Appellants state that the names and addresses of persons directly affected by the appeal are those set out in paragraph 5. 2. PART OF THE DECISION OF THE LOWER COURT COMPLAINED OF: The whole decision. 3. GROUNDS OF APPEAL 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 9of 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 res judicata 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. GROUND 4: ERROR IN LAW 4) 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. Particulars of Error a) The entire ruling which was revisited was already subject of an appeal to the Supreme Court in Appeal No SC/274/07 UMARU MUSA YAR’ADUA & ORS V ALHAJI ATIKU ABUBAKAR b) 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 for the Petitioners/Appellants before their Lordships. c) 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. GROUND 5: ERROR IN LAW 5) 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. See ANPP v Haruna 92003) 14 NWLR (Pt. 841) 546 at 570. It is instructive to note it here that in the case of Buhari v 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.” Particulars of Error a) 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. b) 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 V SHELL P.D.C.N. LTD (2002) 5 NWLR (PT 759) 209. c) Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2006 on the contents of an election petition merely states that the petition shall state clearly the facts and the ground or grounds on which the petition is based and the reliefs sought by a Petitioner and does not contain any restriction as to whether or not ground on unlawful exclusion can be added or exist with other grounds. d) The fact that an election petition is sui generis does not preclude the application of binding principles of law on permissibility of alternative grounds in Nigerian adjectival law. e) Rules of pleading in election petition is the same with civil proceedings vide the Federal High Court (Civil Procedure) Rules, 2000 and Paragraph 50 of the First Schedule to the Electoral Act, 2006. f) The case of ABIA STATE UNIVERSITY V ANYAIBE (1996) 3 NWLR (pt 496) 661 referred to by the lower court considered only a situation in which the word 'or' was construed in the context of any two items as opposed to three or more items as in the case of section 145 (1) of the Electoral Act, 2006. g) The premise stated for the decision on incompatibility or inconsistency of ground of exclusion with other grounds, namely that when a statute provides a particular mode of performing a duty that method and no other must have to be adopted has no application to section 145(1) of the Electoral Act 2006 dealing with grounds for a petition as distinguished from mode of filing election petitions. GROUND 6. ERROR IN LAW 6) The Court of Appeal erred in law in upholding the contention of the 4th – 808th Respondents that the 5th Respondent is not a juristic personality and thus holding that “the 5th Respondent should not have been joined, in the first instance, in his personal capacity. And besides, the 5th Respondent has been joined in the instant petition as 6th Respondent in his official status as the Chief Electoral Commissioner. The 5th Respondent, sued in his personal status, is not a juristic personality. It is clear that the failure to join him in his official status is improper. This is a clear instance of misjoinder. Since the 5th Respondent is not properly joined in law, his name is hereby struck out. Accordingly, this issue is also resolved against the Petitioners and in favour of the Respondents” and thereby occasioned a miscarriage of justice . Particulars of Error a) Joinder of 5th respondent did not violate any provisions of the Electoral Act, 2006. b) 5th respondent was sued as “Professor Maurice Maduakolam Iwu (Chairman INEC)”, a natural person. c) The 5th Respondent identified himself by his personal name and his designation as Chairman of the 4th Respondent in all the legal instruments and documents used for the election all of which instruments were admitted by the court as exhibits in evidence. d) The position of 5th respondent as Chairman of INEC is distinct from his position as Chief National Electoral Commissioner or Chief Returning Officer at the presidential election. e) The cases of KALU V UZOR (2004) 12 NWLR (part 686) 9 and UZODINMA V UDENWA (2004) NWLR (part 854) 303 relied upon by the lower court did not decide that suing an official of INEC in his name along with hid official designation at the election amount to a misjoinder . f) All evidence led against the misconduct of 5th Respondent was wrongly ignored in the judgment on account that he was improperly joined. g) No consideration was given to Paragraph 47 of the First Schedule to the Electoral Act, 2006 and Order 12 Rule 3 of the Federal High Court (Civil Procedure) Rules, 2000 in coming to the erroneous conclusion that the 5th Respondent could not be made a respondent. h) The striking out of the 5th Respondent’s name effective overreached the admissions elicited in favour of the Petitioners in the interrogatory proceedings involving on the 5th Respondent. GROUND 7: ERROR IN LAW 7) The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts when they held that the Petitioners were not excluded from the Presidential elections of April 21, 2007 and that they were included and actively participated in the said election by holding at (page 81 of the Judgment that: “It appears that from the date of nomination until 16th of April, 2007, the 4th respondent attempted to exclude the 1st Petitioner from participating in the election. Certainly some hurdles were placed on his way which ordinarily should not be so but by the judgment of the Supreme Court of 16th April, 2007the coast was cleared for him to contest the election. It needs no further gainsaying the fact that he participated in the election.” Particulars of Error. a) Having found that from the date of nominations till the 16th of April, 4 days to the election of 21st April 2007, the 1st 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. b) The Court of Appeal ought properly to have held that the 1st Petitioner was effectively unlawfully excluded from the election. c) Election is a process that starts with the issuance of Notice of Elections and ends with polls , spanning a period of 150 days as judicially defined in OJUKWU v OBASANJO (2004) 12 NWLR (Pt. 886) 169 & PPA v SARAKI (2007) 17 NWLR (Pt. 1064) 453. d) It was a common ground that the 1st Petitioner was not included in the published list of candidates standing as validly nominated at the election as enjoined by sections 32, 35 , 40 and 41 of the Electoral Act, 2006 up to 16th April, 2007 e) The Judgment of the Supreme Court did not dispense with mandatory duties imposed on 4th - 6th Respondents to include 1st Petitioner in the list of candidates standing for the election. f) The hurdles found to have been placed on the path of the Petitioners are absolutely prohibited by the Electoral Act, 2006 as criminal offences. Particulars of Misdirection g) The lower court based this finding on inaccurate and erroneous review of the evidence and pleadings of the Petitioners to arrive at the conclusion that they participated in the election as follows: i. The fact that the Petitioners pleaded that agents of the 3rd Petitioner were driven away from the polling units in Oyo, Rivers and Zamfara States in their paragraph 18 is consistent with the facts supporting the alternative ground of corrupt practices contrary to the decision of the lower court. ii. The use of the word 'candidate' or 'flag bearer' by some of the witnesses of the Petitioners without more, cannot be that the 1st and 2nd Petitioners were NOT ' unlawfully excluded' in the election. iii. Evidence of failure of INEC to use the approved logo of Action Congress cannot support or warrant the conclusion that the Petitioners participated in the election. iv. An excluded candidate or an excluded flag bearer does not cease to be so excluded simply because he sends his party members to go the polling units to observe voting which is the surest way of gathering evidence of exclusion or of confirming same. v. The Court below failed to take into account that the National Assembly Election took place on the same day with the Presidential Election. vi. The evidence of 2nd petitioner and Lai Mohammed that detailed the facts of exclusion up till date of he election were never challenged by Respondents h) Exhibits EP3/14 and 27 downloaded from the INEC website even after the election still indicated that petitioners did not contest in the election. i) The 3rd Petitioner as a political party has a responsibility to participate in the political process of which elections and election monitoring constitute a basic building block. j) The lower court failed to determine if the hurdles effectively denied Petitioners a level playing field in the election in accordance with principles of the Act as urged on the court by the petitioners. GROUND 8: ERROR IN LAW 8) The learned Justices of the Court below erred in law by holding that the 1st Petitioner was not excluded from the election notwithstanding the fact that his name and his party’s name were excluded from the published list of candidates standing nominated for the election 30 days before the election , which was latest permissible date for the Petitioners to contest the election in their constituency as provided for in section 35 of the Electoral Act. GROUND 9: MISDIRECTION ON THE FACTS 9) The learned Justices of the Court of Appeal misdirected themselves and came to a perverse decision when they held at page 81 of the judgment that 'in our considered opinion the above scenario points to the inescapable fact that the 1st Petitioner's name was published by INEC after the judgment of the Supreme Court on April 16, 2007 to contest the Presidential Election of 21st April, 2007'. Particulars of Misdirection a) The lower court did not identify any publication wherein the name of the 1st Petitioner was contained after the judgment of the Supreme Court on April 16, 2007 to contest the Presidential Election; rather it made the inference from a scenario that was not borne out by evidence. b) The Lower Court ignored the unchallenged evidence of the Petitioners to the effect that the name of the 1st Petitioner remain excluded from INEC's official documents and website up till the date of the election. c) Oral and documentary evidence was led to show that even when a revised list of nominated candidates was published less than 30 days to the date of election , in order to include the candidate Alliance For Democracy on ground of death of its original candidate , 1st Petitioner and his party were still excluded . GROUND 10: MISDIRECTION IN LAW 10) The Learned Justices of the Court of Appeal misdirected themselves in law when they refused to find that the Petitioners’ right to be voted for as guaranteed by Section 131 of the Constitution of the Federal Republic of Nigeria, 1999 was denied him by reason of the facts established in proof of unlawful exclusion thereby refusing his prayer No 5 in the petition. Particulars of Misdirection a) The court found as a fact that he was denied equal participation at the election when they found on pages 81-82 as follows: “At this point we appreciate the submissions of the learned Senior Counsel to the Petitioners in respect of his stance over acts which he contended as amounting to acts that constitute exclusion. It appears that from the date of nomination until 16th of April, 2007, the 4th Respondent attempted to exclude the 1st Petitioner from participating in the election. Certainly some hurdles were placed on his way which ordinarily should not be so. But by the judgment of the Supreme Court of 16th April, 2007, the coast was cleared for him to contest the election. It needs no further gainsaying the fact that he participated in the election. Exclusion means 'keeping out, barring, prohibited, eliminated, ruled out'. The Petitioners, from their own showing in their pleadings, evidence of their salient witnesses as depicted earlier on in this judgment, as well as their conduct after the judgment of the Supreme Court on 16th April, 2007 cannot be heard to say that they have been excluded from the presidential election”. Particulars of Misdirection b) Petitioners had claimed in the alternative in their petition that “It may be determined that a fresh election be conducted into the office of the President of the Federal Republic of Nigeria, in accordance with section 147 of the Electoral Act, 2006 at which the 1st and 2nd Petitioners shall be accorded full and unimpeded right to contest as validly nominated candidates”. c) The finding “that from the date of nomination until 16th of April, 2007, the 4th Respondent attempted to exclude the 1st Petitioner from participating in the election. Certainly some hurdles were placed on his way which ordinarily should not be so” was enough to sustain prayer 5 in the petition. GROUND 11: MISDIRECTION ON THE FACTS 11) The learned justices of the Court of Appeal misdirected themselves and came to unjust decision when they held that ‘the contention of the learned senior counsel for the Petitioners that millions of persons who were qualified to be registered as voters were not duly registered was not substantiated by evidence. It appears that the contention is speculative. There is no evidence from persons who complained that they were not registered and therefore barred from exercising their right to vote. None of them has been shown to have filed any objection or even gone to court to challenge their non-registration. It is therefore highly untenable for the court to be invited to invalidate the election on this ground. Even if there was a surmised non-compliance, by the provision of section 146 (1) of the Electoral Act 2006 same has not been shown to have substantially affected the result of the election’. (Page 87 of the judgment). Particulars of Misdirection a) Registration of voters go to the root of exercise of the franchise of voters and the entire election process to the effect that non compliance with provisions relating to registration of voters substantially affects the result of an election. b) The learned justices did not evaluate or consider evidence of Petitioners’ witnesses that people were not duly registered to vote. c) There was unchallenged evidence from over one hundred Petitioners’ witnesses that prior to the date of the election INEC did not display voters register for objection and that the register used was not the official register of voters integrating into the main register, the result of its revision and the supplementary voters list. d) The invalid voters registration exercise was established with un-controverted evidence by election observers’ reports duly tendered and admitted in evidence. e) There was unchallenged evidence from over one hundred Petitioners’ witnesses that prior to the date of the election INEC did not display voters register for objection and that the register used was not the official register of voters integrating into the main register, the result of its revision and the supplementary voters list. f) Section 140(1) of the Electoral Act, 2006 cannot be called in and to save a breach of Sections 10, 11 and 13 of the Electoral Act, 2006. GROUND 12: MISDIRECTION ON THE FACTS 12. The learned justices of the Court of Appeal completely misdirected themselves on facts when they held at pages 88-89 that ‘there is no evidence before the court to show that the non-binding of the ballot papers and non serialization of same affected the election. Further, there is no evidence to show that the lapse complained about led to any electoral fraud and same cannot be left to guess work. The same ballot papers were used in the ten states and the Federal Capital Territory where the Petitioners by implication conceded that the election conformed substantially with the laws’. Particulars of Misdirection a) The Petitioners’ onus was discharged by the admission of the 4th – 808th Respondents that non serialized ballot papers were used in the Election. b) The fact that that the Petitioners did not specifically list all the states in proving non-compliance with the Electoral Act does not warrant the inference that they conceded that election conformed with the law in the states not listed. c) Petitioners led credible evidence to show that the total number of ballot papers distributed, used and unused for the election could not be determined in the absence of serialization. d) There is evidence elicited upon interrogatories to the effect that the 5th Respondent does not know or is unwilling to disclose the actual numbers of ballot papers supplied, distributed, used and unused in the election. e) The only evidence on record as to the source , nature and supply of ballot papers for the election was Exhibit EP/3/32(15) whereby 5th Respondent explicitly contracted NSPMC to produce ballot papers without serial numbers for the presidential election contrary to section 45 of the Electoral Act, 2006. f) Inference of presumption of regularity was wrongly drawn in favour of 4th Respondent for its deliberate and pre-meditated subversion of section 45 of the Act that was intended to safeguard the integrity and audit trail of the ballot papers. g) Section 45 of the Electoral Act stipulates that ballot papers shall be bound in booklet and numbered serially. f) Non serialization is a grave non-compliance which strikes at the root and foundation of any credible election. GROUND 13: ERROR IN LAW 13. The learned justices of the Court of Appeal seriously erred in law when they held at page 89 that “The flaw, in our considered opinion, is not sufficient to warrant the annulment of the Presidential election. The infraction without more, is one of those envisaged and curable by the provision of section 146 (1) of the Electoral Act 2006 relating to substantial compliance”. Particulars of Error |
