Supreme Court Verdict On Yar’ Adua, Atiku, Buhari Why Buhari Lost, By Supreme Court

– Continued from last Edition up by Abia State Government for doing their job. Counsel submitted that Exhibit EP2/34 did not constitute an indictment as required by section 137(1)(1) of the Constitution. He relied on Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227. Taking Issue No.5, learned Senior Ad­vocate submitted that upon a critical…”
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January 3, 2009 10:17 am
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– Continued from last Edition

up by Abia State Government for doing their job. Counsel submitted that Exhibit EP2/34 did not constitute an indictment as required by section 137(1)(1) of the Constitution. He relied on Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227.

Taking Issue No.5, learned Senior Ad­vocate submitted that upon a critical and deep appreciation of the appellants pe­tition as couched, the Court of Appeal was right by holding that the appellant failed to plead sufficient facts in sup-port of paragraphs 9B(iii)(g) and 9B(iii)(h) of the petition. He relied on paragraphs 1 to 23 of the respondents p1eadings and cited Onvenqe v. Ebere (2004) 13 NWLR (pt. 889) 39; Faqunwan v. Adibi (2004) 17 NWLR (pt. 093) 544 at 566 and Oiieqba v. Okwaranvia (1962) 2 SCNLR 358 at 360.

Dealing with Issue No.6, learned Sen­ior Advocate submitted that going by the provisions of the 1999 Constitution, the Court of appeal was right when it held that the President of the Court of Appeal has both constitutional and statutory powers to make Practice Directions to govern election petitions. He relied on sections 248 and 239 of the Constitution in that order and on cases in respect of construction of statutes. He contended that it is rather strange that appellant who formulated and presented his petition under the Election Tribunal and Court Practice Directions, 2007 would again turn around to take a summer­sault to attack the same Rules. If for a moment, one agrees with counsel’s sub­mission that the Practice Directions are unconstitutional then it goes without saying that:
• the petition itself has no foundation or platform on which it can be based, learned Senior Advocate ar­gued. He referred to Chukwuoqor v. Chukwuoqor (2007) All FWLR (pt. 349) 1154 at 1167; Haruna v. Modibbo (2004) 16 NWLR (pt. 900)

Learned Senior Advocate submitted on Issue NO.9 that considering the provisions of paragraph 1 (ii) of the Erection Tribunal and Court Practice Amend­ment Directions 2007 which govern presentation of election petitions before the Court of Appeal, the 4th and 5th re­spondents’ witnesses statements at­tached to their Reply are competent. Learned counsel contended that it is now an accepted part of our jurisprudence that in deserving cases, a court has the powers to consider what the position of a law was at a given point in time, the mischief inherent in the law as it then stood, the reaction to the mischief by way of an amendment and the expected im­pact of the amendment on the law after amendment.

He cited Onyeanusi v. Mis­cellaneous Offences Tribunal (2002) FWLR (pt. 113) 272; Noibi v. Fikolati (1987) 1 NWLR (pt. 52) 619; Amaechi v. INEC (2008) 5 NWLR (pt. 1080) 227; Awoiuqbade Light Industries v. Chinukwe (1995) 4 NWLR (pt. 390) 379 at 426; Adeniji v. NBN (1989) 7 NWLR (pt. 960) 212 at 220; Obun v. Ebun (2006) All FWLR (pt. 327) 419 at 442; Attorney-General Ondo State v. Attorney-­General of the Federation (2002) FWLR (pt. III) 1972 and Yakubu v. Abioye (2001) FWLR (pt. 83) 2212 and 2326.

Reacting to the documentation in the Brief of the appellant, learned Senior Ad­vocate observed that from the voluminous documentation submitted to the court by the appellant’s counsel, more than half of the documentation contains imaginative charts drawn by counsel without any bearing to the petition pre­sented at the Court of Appeal, and plead­ings of the petitioner before that court, the terse evidence led before that court and the judgment of the court. He urged the court to totally discountenance the analyses as they are of no consequences, and therefore, of no effect. Counsel urged the court to dismiss the appeal.

Learned Senior Advocate for the appellant in his Reply Brief to the 1st and 2nd respondents brief identified two major issues of law. They are first, whether or not the thousands of INEC documents tendered in evidence by the petition are competent before the Court of Appeal and second is, who, between the petitioner and the respondents, does the law place the onus to prove that a proven piece of substantial non-compliance has not substantially affected the result.

Taking the second issue first, learned Senior Advocate repeated his earlier submission that the Court of Appeal was wrong in its interpretation of section 146( 1) of the Electoral Act, 2006 and the respondents have persisted in; reading the last of the subsection without the word’ not”. He called the attention of the court to his earlier arguments at pages 20 to 45 of Appellant’s Brief and urged the court once again to revisit the line of authorities beginning from Akinfosile v. liose, supra, to Buhari v. Obasanjo, supra, and restore Swem v. DzunQwe, supra, to its pride of place as the locus classic us in this area of our law.

Taking the first issue, learned Senior Advocate relied on his earlier submis­sion at pages 90 to 113 of the Appellant’s Brief and repeated quite a junk of the arguments earlier referred to and thus coming to almost square one in the whole matter Citing University of Lagos v. AiQoro (1984) NSCC 745; Abubakar v. Yar’Adua (2008) 1 SC (pt. 11) 77 at 122; OQbuinyinya v. Okudo (1979) 6-9 SC 32 at 42, 43 and 45; Balonwu v. Obi (2007) 5 NWLR (pt. 1028) 488 at 535; sections 93(1), 111 (1) and 112 of the Evidence Act, learned Senior Advocate submitted that if the Court of Appeal had nullified the Practice Directions, reliance could still have been placed on other relevant rules of procedure. He called in aid section 239(1) of the Constitution, paragraphs 50 and 51 of the First Schedule to the Court of Appeal Act.

“In his reply to the Brief of the 4th and 5th respondents, learned Senior Advocate in his response to the preliminary objection “submitted that the grounds of appeal are competent. He submitted in the alternative that as long as there are some competent grounds to sustain the appeal, the court should not strike out the appeal.

Learned Senior Advocate submitted that unless the voters register from units in different parts of the country admit­ted and marked exhibits on record are declared illegal evidence because they were tendered from the bar, the unrebutted, unchallenged and unexplained irregularities on the exhibits eloquently bear testimony that the register of voters manifested such fundamental irregularities that belie its authenticity. As the 151 and 2nd respondents “admitted that election in different parts of the country were not held, proof of the fact was not necessary, counsel contended. I realize that as the entire reality brief is a repetition of the appellant s brief. I do not therefore intend to summarise it any further.

In his reply to the Brief of the 3rd re­spondent, learned Senior Advocate urged the court to strike out the brief as the single issue is not distilled from the grounds of appeal.

Let me take first the preliminary objection on the grounds of appeal. Learned Senior Advocate for the 4th and 5th respondents ‘objected to Grounds 1,2, 3, 4, 7, 8, la, 11, 13, 14, IS, 16, 17 and 19. He did not object to Grounds 5, 6, 9, 12 and 18. As a single ground can sustain an appeal, I will not strike out the ap­peal as urged by counsel for the 4th and 5th respondents. It will therefore take the appeal on its merits.

Although the issue on the validity of the Practice Directions was not raised as a preliminary objection, I should take it at this early stage of the judgment because if I come to the conclusion that the Practice Directions are invalid, the entire proceedings based on them will be declared null, void abinition.

Following the constitution of the Election Tribunals, the President of the Court of Appeal, Hon. Justice Umaru Abdullahi, made the Election Tribunals and Court Practice Directions, 2007 by virtue of the powers conferred on him by section 285(3) of the Constitution of the Federal Republic of Nigeria, 1999, and paragraph 50 of the First Schedule to the Electora1 Act, 2006.

The Practice Directions which came into effect on 3rd April, 2007, contain six main paragraphs. In summary, paragraph 1 provides for the mode of filing a petition by a petitioner. Paragraph 2 provides for the respondent’s reply. Paragraph 3 provides for pre-hearing session and scheduling order, while paragraph 4 provides for evidence at the hearing. Paragraph 5 specifically provides for hearing the petition. Finally, paragraph 6 provides for motions and applications. It should also be mentioned that the President, by the Election Tribunal and Court Practice Amendment Directions, 2007 effected amendments on paragraph 1 (1)(a) and (b).

The amendments also came into effect on 3rd April, 2007. Practice Direction, as the name implies, direct the practice of the court in a particu­lar area of procedure of the court. A Practice Direction could be described as a written explanation of how to proceed in a particular area of law in a particular court. The word “practice” in its larger sense like procedure, denotes the mode of proceedings by which a legal right is enforced as distinct and separate from the law that gives and defines the right.

The word “practice” is the form, manner and order of conducting and carrying on suits or prosecutions in the courts, through their various stages according to the principles of law and the rules laid down by the respective courts. Practice is our adjectival law, that is, the law regulating procedure; for example, the law of pleading, procedure, evidence, etc. They ate rules of civil conduct which declare the rights and duties of all, who are subject to the law and who come before the court to seek redress.

The dictionary meaning of the word “direct” in our context is an order conveying instruction by a person in authority or backed by an authority; the refusal to carry it out is on the pain of sanction or punishment. In law, “direction” in our context, means command or precept emanating from an authority, who in the 2007 Practice Directions, is the President of the Court of Appeal.

What is the legal status of Practice Di­rections? Practice Directions have the force of law in the same way as rules of court. I held in Abubakar v. Yar’Adua (2008) 4 NWLR (Pt. 1078) 455 at 511 that rules of court include Practice Directions. See also Owuru v. Awuse (2004) All FWLR (pt. 211) 1429. Practice Directions will however not have the force of law if they are in conflict with the Constitution or the statute which enables them.

Are the Practice Directions made by the President of the Court illegal or uncon­stitutional? Section 248 of the Constitution of the Federal Republic of Nigeria provides: “Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating toe practice and procedure of the Court of Appeal.”

Order 19 Rule 7 of the Court of Appeal Rules also provides:
“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.”

Both section 248 of the Constitution and Order 19 Rule 7 of the Rules of Court of the Court of Appeal are very clear ena­bling provisions for the President of the Court of appeal to make rules. Section 248 vests in the President to make rules regulating the practice and procedure of the Court of Appeal, subject to the provisions of any Act of the National Assembly.

There is no Act known to me prohibit­ing or inhibiting the President of the Court of Appeal to make rules for the court. Not even the Court of Appeal Act, 2004. Rather, the Act recognizes the making of rules for the court. This• is clear from section 30, the interpretation clause of the Act, which defines “rules of court” as “made or deemed to have been made under this Act.” And so the Practice Directions of 2007 made by the President of the Court of Appeal are either made or deemed to have been made’ under the Court of Appeal Act, 2004.

• To be continued

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