Details of Peter Obi/LP’s appeal at Supreme Court against PEPC judgment [pt. 2]
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On 9th September, 2023, Mr. Peter Gregory Obi and his Labour Party (LP) appealed against the judgment of the Presidential Election Petition Court (PEPC) at the Supreme Court containing 51 grounds of appeal.
The appeal was consequent upon the PEPC Judgment delivered on the 6th day of September 2023, which dismissed the Petition filed by Peter Obi/Labour Party “against the unlawful return and declaration of Bola Ahmed Tinubu as the winner of the presidential election held on 25th February, 2023.
The appeal is predicated on the Notice of Appeal filed in the Supreme Court of Nigeria holden at Abuja with file number SC/CV/937/2023 against petition number: CA/PEPC/03/2023 with the Independent National Electoral Commission (INEC), Senator Bola Ahmed Tinubu, Senator Shettima Kashim and the All Progressives Congress (APC) as Respondents.
In this segment tagged “Legal Arguments”, Peter Obi/Labour Party argued against INEC’s failure to upload and transmit the polling unit results of the election to the iReV as required by law.
They also kicked against the insistence of the PEPC that the Appellants must produce copies of the spread sheets and reports in the list of documents, saying the law obviates the need for any such document to be attached to the Petition.
In their “Arguments on Issue 1”, Peter Obi/Labour Party stated:
It is humbly submitted that the Court below erred and occasioned a miscarriage of justice when it relied on the provisions of Paragraph 4(IXd) and (2) of the First Schedule to the Electoral Act, 2022 (“the First Schedule”) and struck out paragraphs 9, 60, 61, 66, 67, 68. 69, 70, 71, 72, 73, 76, 77, 78, 83 and 99 of the Petition for being vague, generic, imprecise and nebulous. This is because, contrary to the position taken by the Court, the term “vague” connotes “something woolly, equivocal, a state of affairs that does not lend itself easily to comprehension, something blurry and nebulous, uncertain or shadowy”: NUHU v. OGELE (2003) LPELR-2077 (SC). In clear terms, a thing is “vague” when it is not easy to comprehend or understand.
With due respect, the Cowl below seemed to have misinterpreted the nature of the case presented by the Appellants in their pleadings. It is plain that the Appellants’ pleadings were clear and complied with the provisions of the First Schedule. Paragraph 9 of the Petition is clear that the Appellant’s agents ‘raised complaints about anomalies where they occurred and reported such complaints to designated officers of the 2″ Petitioner and the I” Respondent.”
Paragraph 60 of the Petition is precise in alleging that the 1st Respondent failed to upload and transmit the polling unit results of the election to the 1ReV as required by law; and the paragraph was also specific in stating that Eighteen Thousand and Eighty-Eight (18,088) blurred and unreadable Forms ECSAs were uploaded on the 1ReV portal by the 1st Respondent. The pleading in Paragraph 61 of the Petition related to clearly specified documents, namely: (a) A Spreadsheet whose content is specified; and (b) A Forensic Report of the Presidential Election; and in that paragraph, also, the complaint regarding the uploading of blurred Forms EC8A was specifically stated to be in Benue State.
Paragraphs 66, 67, 68, 69, 70, 71, 76, 77, 78 and 83 of the Petition, when read together, specifically incorporated the Report of Inspection of election materials as well as the Forensic/Expert Analysis made pursuant to the orders of the Court below, which specified the relevant particulars of the complaints made in the Petition. Paragraph 72 of the Petition is not vague as it constitutes complaint of over-voting in polling units in 13 States specifically pleaded in the Petition, namely, Ekiti State, Oyo State Ondo State, Taraba State, Osun State, Kano State, Rivers State, Borno State, Katsina State, Kwara State, Gombe State, Yobe State and Niger State, with full and specific itemization in the Forensic Report produced/tendered by the Appellants which was unlawfully discountenanced by the Court below.
In Paragraph 73 of the Petition which complained about improper computation of results, the averments contained therein were specific with respect to ten (10) States of the Federation pleaded in the Petition; namely, Rivers State, Lagos State, Taraba State, Benue State, Adamawa State, Imo State, Bauchi State, Bomo State, Kaduna State and Plateau State. Paragraph 99 of the Petition was specific as it related to clearly identified documents which were pleaded to be relied upon at the trial.
It is significant to note, in this connection, that all the Respondents filed their Replies to the Petition and specifically joined issues with the Appellants by answering all the material allegations contained in the said paragraphs of the Petition. Surely, the Respondents could not have joined issues or responded to the pleadings on the ground that they were vague, imprecise, and nebulous as they so claim. The Respondents in their respective Replies “clearly” comprehended the facts, grounds and reliefs sought by the Appellants and answered to them in their said Replies.
For instance, in answer to Paragraphs 60 and 61 of the Petition, where the Appellants pleaded “the 1st Respondent’s refusal and neglect to upload and transmit the result of the election in the polling units to the iReV as required by law …”, and that they shall rely on Spreadsheets containing polling unit codes, the 2nd and 3rd Respondents stated in Paragraphs 72 and 73 of their Reply that “there was no neglect of any kind on the part of the 1st Respondent in the conduct of the presidential election held on 25th February 2023 that vitiated the election outcome” and that “the Appellants have largely contradicted themselves, by alleging on the one hand that the Respondent did not upload results and on the other hand …that the 1st Respondent uploaded blurred Forms EC8A.” The 1st Respondent also specifically denied those pleadings in Paragraphs 59 and 60 of its Reply.
It is submitted that the Respondents by joining issues with the Appellants on the above paragraphs, cannot make a “U-Turn” and allege that the Appellants’ pleadings are vague. generic, imprecise and nebulous. For them to do so is tantamount to approbating and reprobating which the law frowns at. Sec AMOK v. KELANI (1985) 3 NWLR (Pt. 12) 248. It is trite law that a party who joins issues fully understands the pleadings to which he joins issues and would not have responded to an unclear issue. See ABUBAKAR v. INEC (2019) LPELR-48488 (CA) where it was held that a respondent who has joined issues with a petitioner over cited paragraphs of the Petition, cannot turn around to complain that the paragraphs are vague or lack particulars.
It is submitted that if the Respondents were uncertain or not clear about the facts contained in the Petition as they claim, their remedy did not lie in Paragraph 4(7) of the First Schedule as erroneously held by the Court below. Paragraph 4(7) is intended to deal with the Petition while it is still on course at the Registry when the Court below is performing its administrative oversight to determine if the Petition complied with Paragraph 4(1) — (5) of the First Schedule. This is why Paragraph 5 empowers the Court below to “order such further particulars as may be necessary to prevent surprise and unnecessary expense” at that administrative stage. See OMBUGADU v. SULK (2019) 12 S.C. 90 at 104.
It is submitted that this duty on the Court below is a proactive action to suo moto save defective pleadings (even though this is not conceded with respect to the Appellant’s pleadings in this case) before the pleadings is issued and served on the Respondent. The failure of the Court below to comprehend the enormity of the responsibility to obviate miscarriage of justice led it to this erroneous and perverse decision striking out those paragraphs. Contrary to the position of the Court below, the legal course or remedy available to the Respondents in such a situation (which is not conceded) lay in Paragraph 17(1) and (2) of the First Schedule which required them to ask for further and better particulars.
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In ABUBAKAR v YAR’ADUA (2008) I SC (Pt. II) 77 at 109, this Honourable Court held that the Respondents were obliged to apply to obtain Further Particulars and may even do so by a mere letter before making an application to the Court “where, in his view, the pleadings are not only generic, and omnibus but vague, nebulous, and lacking specificity.” This Court also held clearly in OMBUGADU v. SULE (supra) at 183 that a Respondent who fails to ask for further and better particulars is barred from using the guillotine of seeking for striking out of the paragraphs of the Petition it erroneously considers vague.
We also refer your Lordships to the case of TOMOR1 v. OSOBA (2017)3 NWLR (Pt. 1553)498. 4.6. It is further submitted that the Court below overlooked the fact that the Appellants’ pleadings in paragraphs 100 and 101 of the Petition, which can be found on page 31. Vol. 1 Record of Appeal, hereinafter referred to as “RoA”) that certain facts and documents were pleaded by incorporation or reference did not amount to a concession that those facts were not pleaded. The Appellants pleaded that certain details or particulars of the pleaded facts were as contained in spreadsheets and forensic/expert reports which were then pleaded and listed in the List of Documents filed along with the petition.
Pleading by reference or incorporation has been accepted and settled in a plethora of cases. See Ekpemupolo V. Edere Moda (2009)8 NWLR (PI. 1142)166 at 186F-187. What is more, Paragraph 5 of the First Schedule clearly provides that evidence need not be stated in the petition. This is consistent with the age-long principle that only facts are to be contained in pleadings and not evidence. Sec FABIYI V. ADENIYI (2000) FWLR (Pt. 18)196 SC. The Court below itself agreed that the Appellants had stated that they would rely on Spread Sheets, Inspection Reports and Forensic/Expert Analysis.
Quite apart from the fact that these materials are evidence which are not required to be pleaded, they are sufficient proof of clear and precise facts contained in the Petition and if the Respondents required Rinker particulars such as copies of the spread sheet, they were obliged to obtain same by a mere letter to the Appellants. It is sufficient proof that the Appellants duly complied with Paragraph 4(I)(5)(c) that required the Appellants to accompany their Petition with “copies or list of every document to be relied on at the hearing of the petition.” The law allowing the Appellants to file a list of documents intended to be relied upon, obviates the need for any document to be attached to the Petition. The insistence of the Court below that the Appellants must produce copies of the spread sheets and reports ‘only listed as Item 35 and 36 in the list of documents.
The decisions in Belgore V. Ahmed (2013) 8 NWLR (Pt 1355) 60 and PDP v. INEC (2012) 7 NWLR (Pt. 1300) 538 relied upon by the Court below do not represent the current position of the law. With respect the Court below gravely erred in law by its refusal to follow the most current judicial precedent and apply the robotics decidendi of this Honourable Court in the more recent case of OMBUGADU v. SOLE (supra) which was cited to the Court, where this Apex Court affirmed the importance and difference in the provisions of Paragraphs 5 and 17(1) of the First Schedule which are substantially the same with Order 13 Rule 7(1) and (2) of the Federal High Court Rules 2019. The law is well settled that when two or more decisions of the Supreme Court conflicts, the latest in time prevails. See MAKU v. SULE (2022) 3 NWLR (Pt. 1817) at 231 (SC).
It follows that the reliance of the Court below on Paragraph 15 of the First Schedule at the stage of filing the petition was premature. It follows also that the reliance on the case of Nigeria Merchant Bank Plc V. Aiyedun Inv. Ltd. (1997) LPELR -5951(CA) is inapposite as the situation in that case is totally different. The Court in that case referred to “unspecified documents”, while the Appellants in the instant case pleaded specific documents. The Court’s effort to segregate between front-loaded documents and documents incorporated by reference is, with respect, not sustainable.
What is required is that a petitioner shall frontload a list of the documents he intends to rely on at the trial and the Appellants met that condition at the time of filing the Petition. 4.8. We also submit that the Court below erred in law when it held that Exhibit X2 (the European Union Report) which was duly certified by the registry of the Court below, was inadmissible. It is our contention that Exhibit X2 was in the custody of the Registry of the Court below and the registry officials being public officers were inbuilt with power under section104 of the Evidence Act, 2011 to certify same.
The documents being a certified public document therefore was admissible in evidence. In conclusion, the Appellants submit that the Court below was grossly in error and thereby reached a perverse decision which occasioned a miscarriage of justice when it struck out the above-mentioned paragraphs of the Petition. We respectfully urge Your Lordships to resolve issue number I in favour of the Appellants and set aside the decision of the Court below that struck out the said paragraphs. Accordingly, we urge this Honourable Court to take those paragraphs into consideration and evidence adduced by the Appellants’ witnesses thereon, in evaluating the case of the Appellants in this Appeal.”
Read also:
Details of Peter Obi/Labour Party’s appeal at
Supreme Court against PEPC judgment [part 1]
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