PETITIONER to prove that the election was not conducted in accordance with the ‘provisions of the Electoral Act having particular regard to the provisions of section 146(1) of the Electoral Act and that the onus was not discharged, Learned Senior Advocate argued that as little or no evidence was called, there was little or no evidence for the court to evaluate in the light of the fact that of the 20 witnesses depositions filed, nineteen were struck out because they failed to meet the requirements of section 83 of the Evidence Act.
In consequence, the entire petition became totally deficient of evidence to support the grounds and prayers of the petitioner. This left the entire petition with only one witness deposition that of Bernard Nimfa Bamfa of Plateau State.
The witness deposed to facts concerning the Presidential Election in just one polling station of about 1,892 votes in Plateau State, a state where the conduct of the election was not challenged by the appellant, learned Senior Advocate said. Assuming, without conceding, that there was non-compliance with the provisions of the Electoral Act, this could not reasonably affect the outcome of the election in any substantial way so as to result in the nullification of the election, counsel opined. He quoted extracts from the judgment of the Court of Appeal evaluating the evidence as well as Aqbi v. Oqbe (2006) 11 NWLR (pt. 990) 65 at 119; Buhari v. Obasanio (2005) 23 NSCOR; Usman v. Garke (2003) 15 NSCOR 24 at 36; Kwaiaffa v. Bank of the North (2004) NSCOR 343 at 566 and Jikantoro v. Dantoro (2004) 18 NWLR 646 at 670 and submitted that the Court of Appeal properly evaluated the evidence before it. Counsel examined the evidence in 11 States at pages 96 to 101 of the Brief.
Learned Senior Advocate enumerated paragraphs 2, 4, 9, 9C(x) of the petition at pages 101 to 102 of the Brie which were either struck out or abandoned. He also enumerated in paragraph 10.14, page 103, of the Brief reliefs sought by the appellant which were abandoned by the appellant as a result of the abandonment by him of all allegations of corrupt practices or as a result of their having been previously struck out by the Court of Appeal.
Learned Senior Advocate submitted that the pleadings in respect of allegations of non-compliance with the provisions of the Electoral Act fell short of the requirements of the rules of pleadings. He contended that the pleadings consist of general complaints bereft of specific facts; speculative assertions and legal arguments and conclusions. He dealt with paragraph 9B of the petition from pages 108 to 111. He also dealt with the pleadings of non-compliance with the provisions of the Electoral Act in those States where the conduct of the election was challenged by the appellant, which according to counsel, failed woefully to meet the requirements of the law relating to pleadings, from pages 11, 114 to 116. He cited quite a number of authorities on drafting of pleadings and failure of a party to lead evidence on his pleadings. He urged the court to dismiss the appeal.
Learned counsel for 3rd respondent, Mr. Unana Ibom, submitted that as the appellant did .not appeal against the findings of the Court of Appeal on the 3rd respondent, the court should dismiss the appeal against the respondent. I think I can finish this straight away . As the appellant withdrew all criminal allegations in his petition, and in the light of the judgment of the Court of Appeal, the case against the 3rd respondent is dismissed.
Learned Senior Advocate for the 4th and 5th respondents, Chief Wole Olanipekun, submitted as follows in his preliminary objection: (i) As the two appeals filed by General Buhari and Alhaji Abubakar are not yet consolidated by an order of this court, the appeal as presently constituted by the appellant is incompetent and should be struck out. Grounds I, 2, 3, 4, 7, 14 and 19 are basically narrative, unwieldy, prolix and argumentative. Grounds 5, 8, 10, 13 and 17 are vague and not understandable.
Leave of this court or the Court of Appeal is needed before the appellant can raise Grounds I5-and 16 and as such leave was not obtained, the grounds should be struck out.
There is no nexus between Grounds 15 and 16 and the record of (ii) (iii) (iv) (v) proceedings and should therefore be struck out.
Taking the merits of the appeal in the alternative, learned Senior Advocate argued Issues I, 3 and 7 together. He submitted that the age-long principle of law is that he who asserts must prove and that there is a presumption in favour of any result declared by INEC to be genuine, legal and authentic and the burden of proving otherwise rests squarely on the person who challenges the result, who in the instant case is the appellant. He cited sections 135 and 138 of the Evidence Act; Moqaii v. Odofin (1978) 4 SC 91; Aqballah v. Nnamani (2005) All FWLR (pt. 245) 1052; Hashidu v. Goie (2003)15 NWLR (pt. 843) 361 at 363 and Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 122. Counsel submitted that the onus of proof placed on the appellant was not discharged thus the Court of Appeal was right when it concluded in its judgment that the unsubstantiated allegation contained in the petition cannot be relied upon to nullify the election of the 4th respondent.
Counsel relied on the respondent’s answer to the appellant’s allegations enumerated from pages 23 to 26 of the Brief. Counsel also examined the evidence of the 19 witnesses from pages 27 to 33 and submitted that apart from signifying nothing, the depositions were restricted in scope and persons, as well as geographical spread. No agent of the appellant from any of the States in respect of which he made wild allegations ordering on non-compliance with the Electoral Act, 2006 deposed to any witness statement, learned counsel argued.
Reproducing paragraphs 14, 16, 18, 19 and 21 of the petition, learned Senior Advocate wondered why the appellant did not tender a single ballot paper to substantiate his averment that the ballot papers used for the election were illegal and also his failure to call at least one of the agents to testify in respect of the averment in paragraph 16 of the petition. He cited some cases at pages 37 to 60 of the Brief.
Learned Senior Advocate submitted on Issue No.2 that the Court of Appeal was right when it pronounced as incompetent the depositions of the appellant’s witnesses which were sworn before Val. I. Ikeonu who is one of the appellant’s counsel. Relying on section 83 of the Evidence Act, section 19 of the Notaries Public Act and a number of cases; learned Senior Advocate submitted that the Court of Appeal was right in rejecting the depositions of 18 witnesses sworn before Val. I. Ikeonu, one of the counsel of the appellant.
On Issue No.4, learned Senior Advocate submitted that the 4th respondent, Alhaji Umar Musa Yar’Adua, was not disqualified from contesting the Presidential Election as claimed by the appellant. Learned counsel said that it is not only laughable but ludicrous that the 4th and 5th respondents who were formerly Governors of Katsina and Bayelsa States respectively could be indicted by a Commission of Inquiry set 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.
•To be continued