Thread by @OyedeleFatai

UPDATE ON CA/PEPT/002/2019 Between
1. ATIKU ABUBAKAR .... PETITIONERS
2. PDP
AND
1. INEC ......... RESPONDENTS
2. PMB
3. APC
@trolls_queen @FemiDenning @romanticboy77 @ProfOsinbajo @OfficialAPCNg @toluogunlesi @akandeoj @Mr_JAGs
@IsmaeelAhmedB @BashirAhmaad @MBuhari

During the pre hearing session, the petitioners proposed to tenderer all their documents from the bar. All the parties however agreed that grounds of objection to those documents shall be filed separately at the address stage.

These culminated into filling two processes after the close of the Respondents’ case namely FINAL WRITTEN ADDRESS & ADDRESS IN SUPPORT OF OBJECTIONS.

ANALYSIS OF THE 2ND & 3RD RESPONDENTS’ OBJECTIONS TO DOCUMENTS TENDERED BY THE PETITIONERS
It is on record that, in the course of the proceedings when the Petitioners sought to tender the avalanche of documents comprising mainly purported CTC& pink copies of forms EC8As, EC8Bs,

EC8Cs, CF001, National dailies, Letters, REPORTS, INEC Manual on Election Technology in evidence, objections to the admissibility of same were raised by the all the Respondents as a result of which those documents were admitted in evidence subject to the objection and argument

on the objection at the address stage. The said documents so tendered by the petitioners at copies of electoral materials used in the following states: Yobe,Kebbi,Borno,Niger,Kano,Bauchi,Katsina,Jigawa, and Zamfara. The 2nd&3rd Respondents’ objections are in two folds.

While the first limb deals with the admissibility of Documents in respect of the aforementioned states which were marked this: PYB1-PYB1732, PKB1-PKB2106, PB01-PB3472-PO1-P1797, PKN1-PKN5806, PBC1-PBC3599, PK1-PKT3378, PJG1-PJG3162, PKD1-PKD3335A, PZF1-PZF008, P1-P333A

in view of the extant position of the law regarding admissibility of public documents, the 2nd limb brings to the fore the incompetence of the Reports/depositions respectively adopted by PW59 (DAVID NJOGA- Kenyan) and Pw60 (JOSEPH GBENGA- Data Analyst)

having regard to the position of the law in respect of the nature of the witness that must be subpoenaed to give evidence before a court. In order to drive home the point being made, argument in support thereof shall be proffered seriatim on each of the limbs.

It was the argument of the 2nd&3rd Respondents that all the documents tendered by the petitioners and admitted as Exhibits are documentary hearsay evidence that should not have been admitted in evidence by the Court in the first place, having not been tendered by the makers of

those documents. The law is quite clear that the proper person through whom documents must be tendered is the maker of such document. The case of BELGORE v AHMED (2013) 8 NWLR (Pt. 1355) 60 AT 100 Paras D – E; and other relevant cases on the subject were cited.

More particularly the recent case of the recent case of ANDREW v INEC (2018) 9 NWLR (Pt. 1625) where the Supreme Court held that credence cannot be given to a document tendered by a witness who cannot be rightly cross examined as to its contents.

A person who did not make a document is not in a position to give evidence on it because the veracity and credibility of the document cannot be tested through a person who has no nexus with the document. Only a maker of a document can tender and be cross examined on same.

Any Exhibit tendered without calling the maker thereof will not be admissible.

See also OMISORE v AREGBESOLA (2015) 15 NWLR (Pt. 1482) at 205; UDOM v UMANA (2016) 2 NWLR (Pt. 1526) 179.

Apart from the fact that the said documents are documentary hearsay, same are also inadmissible because they cannot be tendered from the bar having been disputed by the Respondents pursuant to Paragraphs 10&11 of its answers to the pre-hearing information sheet (Form TF 008)

filed on 2nd of May, 2019. Indeed, Paragraph 41(2) of the 1st schedule to the Electoral Act 2010 (as amended) provides that, documents which parties consented to shall be tendered from the bar or by the party where he is not represented by a legal practitioner.

However, para 41(3) all disputed documents shall be tendered by a witness who is the maker during the evidence in chief. By the mandatory provisions of para 41(3) of the 1st schedule to the Electoral Act, disputed documents cannot be tendered from the bar.

They must be tendered through a witness who is the maker of same. It was submitted that neither the parties nor this Honourable Court can jettison or circumvent the mandatory provision of paragraph 41(3). They referred to the case of NWANKWO v YAR’ADUA (2010) 12 NWLR (Pt. 1209)SC

Therefore no favour can be shown by this Honourable Court to the petitioners who decisively tendered the disputed documents from the bar in utter disregard of the Provision of Paragraph 41(3) of the Electoral Act.

The 2nd& 3rd Respondents therefore urged the court to expunge Exhibits PYB1-PYB1732, PKB1-PKB2106, PB01-PB3472-PO1-P1797, PKN1-PKN5806, PBC1-PBC3599, PK1-PKT3378, PJG1-PJG3162, PKD1-PKD3335A, PZF1-PZF008, P1-P333A tendered from the bar by the petitioners.

The 2nd &3rd Respondents further argues that all the aforementioned Exhibits are also legally inadmissible and ought to be expunged from the proceedings because the Petitioners failed to comply with the extant position of the law regarding the nature and content of the secondary

evidence of a public document that may be admissible as provided by Sections 87, 89, 90 and 104 of the Evidence Act 2011 (as amended). It is trite that for a secondary evidence of a public document to be admissible in evidence,

it must be a copy of the exact contents in the original of the public document. In other words, the content in the certified true copy must not be different from that of the Original of the public document from where the CTC emanated. See: IBWA LTDvIMANO (NIG) (2001) FWLR (PT 44)

In the instant case, a thorough perusal of all the documents tendered by the petitioners will reveal that each of the documents were laced with certain comments which are not contained in the original documents from where the said exhibits were purportedly made.

Thus, such act is improper in law thereby altering the content contained in the original document. It was therefore submitted that those documents are not in law a true copy of the original of a public document from where they purportedly emanated in compliance with Section 104

of the Evidence Act. See: OMISORE V. AREGBESOLA (Supra) in which a situation not dissimilar from the observations made against the purported CTC in this petition, the Supreme Court held as follows:

“Most worrisomely, there are several pencil inscriptions, evidently additions to the contents of the documents. These alterations, wittingly or unwittingly, had the effect of supplanting the main jurisprudential rationale for the statutory requirement

that only duly CTC of public documents are admissible where the parties do not intend to produce their originals.”

OBJECTIONS ON THE EVIDENCE OF PW59 (DAVID NJOGA - KENYAN)& PW60(JOSEPH GBENGA- Data Analyst). This brings to a sharp focus the propriety or otherwise in law of the report/depositions adopted by PW59 and PW60 respectively as subpoenaed witnesses and the resultant effects of same

on the petitioners’ allegations in the petition. It was submitted that PW59 and PW60 cannot be compelled and brought to court by subpoena as they are petitioners witnesses in the entire circumstances of this petition. It is trite that a subpoena is a court process commanding any

person to attend court and produce a document or evidence before it. Therefore, a subpoena is a court process commanding or compelling the attendance of an unwilling witness in court. It is clear that PW59 and Pw60 worked for the petitioners as experts in this case.

PW59 stated in evidence that he was paid for logistics while PW60 admitted that he was paid his professional fee by the petitioners. It is thus clear that they were petitioners’ witnesses and not adversary or official witnesses.

LIt is the submission of the 2nd&3rd Respondents that these two witnesses are willing witnesses of the petitioners who do not require or need subpoena to be compelled to attend court in this petition.

Subpoena is only issued on an adversary or unwilling witness to compel him to attend court. This is not the case in this petition where PW59 and PW60 are petitioners’ workmen who were paid for their job. Therefore, securing the attendance of such witnesses

who would be much willing to present their purported reports in court through subpoena is most incongruous and an abuse of court process. See: DINGYADI vs. INEC (NO. 1) (2010) 18 NWLR (PT. 1224). The issuance of the subpoenas on PW59 and PW60 (who are willing witnesses

of the petitioners) on the application of the petitioners was not done bonafide and properly in the entire circumstances of this case and is not a mere irregularity but a gross abuse of court process which this Honourable Court is bound to deprecate and nullify.

The court was therefore urged to invalidate the subpoena being an abuse of court process and disregard the evidence of PW59 and PW60 in the circumstances of this petition.

THE INADMISSIBILITY OF EXHIBITS P87 - Purported Expert report on “SERVER” AND P90 & 90A-K
- Executive Summary of total votes from 11 states of Yobe,Kebbi,BornoNiger,Kano,Bauchi, Katsina,Jigawa,Zamfara,Kaduna, & Nassarawa.

Experts Reports -Exhibits P87 & P90, P90A-K are inadmissible in this petition. The PW59 and PW60 who produced the purported Reports did not establish their qualification and skill as experts in any relevant field before the court to make their reports admissible in evidence.

It is trite that in certain cases, the evidence of opinion of an expert is relevant, but he must be called as a witness. He must also state his qualifications and satisfy the court that he is an expert on the subject to which he is to give his opinion and he must state clearly

the reasons for his opinions. See: SOWEMIMO V STATE (2004) 11 NWLR (PT. 885) 515. Contrary to section 68 of the evidence Act, 2011, neither PW59 nor PW60 produced or tendered before the Court their alleged qualifications or certificates.

Indeed, PW59 admitted he did not attach any qualification to his statement on oath. Likewise, PW60 unashamedly admitted not being “certified” and did not attach any certificate to his statement on oath, to satisfy the Court of their alleged qualification as an expert.

The evidence of PW59 and PW60 are lacking in this regard as there is no evidence of their qualification and there is no basis or reasons for their opinion. PW60 in particular displayed his non-qualification to give expert evidence or opinion as a statistician that he claimed to b

PW60 in particular displayed his non-qualification to give expert evidence or opinion as a statistician that he claimed to be when he stated under cross-examination that he has no qualification yet but that he is pursuing his relevant certification.

More-so, the purported pink copies with which PW60 claimed to have carried out his analyses were not even identified by him in court. The Honourable court was urged to treat Exhibits P87 and P90 - P90A-K with caution and care in the circumstances of this petition whereby

the purported expert witnesses were engaged by the Petitioners. This is the position of the law as held in plethora of cases including the case of U.T.B.V AWANZIGANA ENT. LTD (1994) 6 NWLR (PT. 348) 56 @ 77, paras B-F (per Uwaifo JCA as he then was) where it was held thus:

“I think there is good reason to treat the evidence of an expert called by a party in certain circumstances in some cases with studied caution. Some experts may be unduly influenced in their opinions by the prior briefing they received from those who seek their services.....

This may or may not be deliberate. But there is no denying the fact that once that possibility is there a court has to be circumspect in acting in on such an opinion unless in very clear cases.
“The testimony of experts is often considered to be of slight value,

since they are proverbially, though perhaps unwittingly, biased in favour of the side which calls them, as well as over-ready to regard harmless facts as confirmation of preconceived theories; moreover, support or opposition to given hypothesis can generally be multiplied at will

This is a useful and timely caveat”

The purported expert reports of PW59 and PW60 were made upon the engagement by the petitioners and thus become unreliable. This is because they have been influenced, in their opinion having been paid fees for their services to produce Exhibits P87 – P89 and P90 - P90A-K.

The 2nd &3rd Respondents submitted that it is very unsafe for the Court to rely on Exhibits P87 - P89 and P90 -P90A-K which were produced for a consideration. This is the reason for the decision of the Supreme Court in the case PDP V. INEC(2012) 7 NWLR (PT. 1300) 538

where it was held succinctly that “It is clear that the report exhibit P72 put up by the PW34 ‘for a fee’ was designed to ‘steal’ the show’,, as it were. It is not safe to rely on the evidence of PW34 and his report in Exhibit P72.“

What is more, what is the basis of the expert evidence? The Petitioners called the purported expert witnesses to establish the alleged existence of “INEC SERVER” and consequently the transmission of results as claimed by the Petitioners.

The point is that there is no basis for expert witness or evidence to establish the existence of any server and transmission of results thereto all over the Federation. The court can determine the matter based on credible evidence already before it and not necessarily on any

un-solicited expert evidence. It is trite that the calling of expert evidence is not essential in all cases except where the court cannot decide the matter on ordinary evidence. See: U.T.B V AWANZIGANA ENT. LTD (SUPA)

Now to the substantive FINAL WRITTEN ADDRESSES of the 2nd&3rd Respondents. I’ll start with that of 2nd (PMB) whose Legal team is ably led by the revered Chief Wole Olanipekun, SAN. The 2nd Respondent distills three main issues for determination in the address.

i. Having regard to the constitutional qualification prescribed for any candidate contesting for the office of the President of the FRN, whether the petitioners have been able to make any case on Non- Qualification of PMB to contest the said election,

and/or that he submitted false information to the 1st respondent in his Form CF001.

ii. Considering the pleadings of the petitioners and the arid evidence profered by them, whether the petitioners have not woefully failed to prove any of the allegations of non-compliance with the provisions of the Electoral Act, 2010 (as amended), corrupt practices,

and that the 2nd respondent was not duly elected by majority of lawful votes cast at the presidential election of 23rd February, 2019.

iii. Considering the feeble case by the petitioners before this Honourable Court, whether the court can decree that the 1st petitioner was duly

and validly elected as President of the Federal Republic of Nigeria, at the presidential election held on 23rd February, 2019.

These three issues cover all the six reliefs being sought by the petitioners, including the alternative one.

On ISSUE 2, for ease of reference, and for purpose of clarity, the 2nd Respondent made appropriate references to the evidence of the petitioners’ witnesses, as well as a graphic summary of each of them. But it is pertinent to state, that in the pleadings,

petitioners are challenging the result of the election in virtually all the States of the Federation, including States where they won.

Graphically, in paragraph 34 ofthe petition, the petitioners challenged the Abia State result, para 36 for Adamawa, para 37 for Akwa-Ibom,

para 39 for Anambra State, para 41 for Bauchi, para 42 for Bayelsa, para 44 for Benue, para 46 for Borno, para 48 for Cross River, para 50 for Delta, para 52 for Ebonyi, para 54, para 56 for Ekiti, para 57 for Enugu, para 59 for the FCT, para 61 for Gombe, para 63 for Imo,

para 65 for Jigawa, para 67 for Kaduna, para 69 for Kano, para 71 for Katsina, para 75 for Kogi, para 77 for Kwara, para 79 for Lagos, para 81 for Nasarawa, para 83 for Niger, para 85 for Ogun, para 87 for Ondo, para 89 for Osun, para 91 for Oyo, para 93 for Plateau,

para 95 for Rivers, para 96 for Sokoto, para 98 for Taraba, para 100 for Yobe, and para 102 for Zamfara.

Alas, Petitioners called witnesses in 15 States to wit: Bauchi, Borno, Enugu, Gombe, Kaduna, Kano, Katsina, Kogi, Jigawa, Nasarawa, Niger, Rivers, Yobe, Zamfara and the FCT.

For Rivers State, PW2 was called, who merely informed the court that he was a Registration Area Technician. He was not an appointee or servant of INEC, neither was he a polling unit agent. That was the only witness called for Rivers State.

For Enugu State, petitioners called PW3, who claimed to have served as a PO at Unit 005, Amorji Ward, in Enugu East LGA. For the FCT, PW4 and PW16, who respectively claimed to have been APOs at PU 001 Kwali & Wako PU 001, Kwali, were called-

their evidence merely relates to transmission of results through a code which neither of them could identify, mention or remember. For Jigawa, PW5 claimed to be a PU agent for the petitioners at Mai Angwa Yelwa 008 PU of Zandam Nagogo ward, in Gwaram LGA of Jigawa State.

For Niger, PW12, PW13, PW14 & PW15, who also claimed to be PU agents, were called out of the several LGs, wards, and polling units in the State. PW18, PW19, PW28 and PW30, were the only four witnesses called in Bauchi, PW20, PW22, PW24, and PW 25 were called in Kaduna.

For Borno, PW 27, PW34, PW35, PW37, PW38, PW54 and PW56, were called; for Nasarawa, PW43 and PW44, PW48, PW50, PW51 and PW52, were the only witnesses. For Kogi, ward collation agents in the persons of PW57 and PW61 were called for the entire State.

At this point, it was respectfully submitted that petitioners have abandoned their pleadings and/or chosen not to pursue their case first, in respect of the 22 States of Lagos, Ogun, Ondo, Osun, Ekiti, Oyo, Edo, Akwa-Ibom, Cross River, Ebonyi, Delta, Bayelsa, Anambra, Imo, Abia,

Sokoto, Taraba, Adamawa, Plateau, Benue, Kebbi, Kwara. The law is well settled that evidence supersede pleadings and any pleadings not supported by evidence are deemed abandoned. See, Yahaya v. Dankwambo (2016) 7 NWLR (Pt. 1511) 284, Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38,

It is the submission of the 2nd Resp that the petitioners have made no pretence of having abandoned their case in respect of the afore-mentioned 24 States, which constitute more than about 85 percent of the States in Nigeria. It is also further submitted that on this note,

petitioners’ case becomes hollow and or empty. The court is urged on this note alone, to resolve this issue against the petitioners. The case of Katsina presents a very startling scenario for while in paragraph 21 of the Petition, the petitioners pleaded that

The true, actual and correct result upon a state to state computation are as reflected…hereunder in the table following…” Katsina, with registered voters of 3,230, 230; Accredited voters of 1, 715,836; with Atiku Abubakar polling 160, 230; while PMB polled 1, 555, 633

The law is well settled that pleadings are sacrosanct and binding on parties. Ogboru v. Okowa (2016) 11 NWLR (Pt. 1522) 84 at 122-123. With the pleadings of the petitioners in respect of Katsina, petitioners admitted that the respondent led the 1st petitioner with a wide margin.

of 1,395,495, a result which the petitioners describe as “true, actual and correct”. Yet, for this same Katsina State, petitioners have come up with 5 witnesses- PW8, PW9, PW10, PW11, and PW55, to give evidence contrary to their pleadings and/or in complete reverse to what they

have pleaded. Thus, the evidence in respect of Katsina adduced on record goes to naught; and the Court is urged to expunge them, for every evidence contrary to pleadings is liable to be expunged. See in Ajide v. Kelani (1985) 3 N.W.L.R. (Pt.12) 248, the Supreme Court,

per Oputa, JSC, warned that parties should be consistent in stating their case, and that no party will be allowed to maintain a particular stance in his pleadings and turn summersault while adducing evidence. This is exactly what the petitioners have done in this case, and

the law will not allow them to get away with it. In effect, Katsina State is now added to the 24 States already conceded by the petitioners to the respondent, meaning that before the take-off of the legal challenge the petitioners are putting up through this petition,

they have conceded 25 States to the respondent. It is our submission again, that on this note, this issue should be resolved against the petitioners, and that it signals the end of the petition.

EVIDENCE OF PW59 (DAVID NJOGA) SCRUTINISED
PW59, an imported witness from Kenya, claimed to be an expert who deposed to a witness statement on oath. He attached 8 exhibits to his statement, the last one, being Exhibit 8, which is labelled “summary and conclusion” of his opinion

A copy of the said witness statement and exhibits attached were served on each of the respondents. Under cross examination, he denied the very obvious, after spending over ten minutes to do a pretense in form of comparison between Exhibit 8 attached to the respondent’s copy

of his witness statement and his own copy by falsely stating under oath in the witness box that the said Exhibit 8 was dated and signed. We urge the court to note that the court’s copy, as well as every other copy served on each of the respondents was neither dated nor signed.

The entire testimony of this imported witness is not only eroded, but also destroyed by this singular action. He demonstrated no remorse. Exhibit 8, is the bus stop or final destination of the entire exercise embarked on by the witness. What is the result?

An undated and unsigned document. The law is well settled that this type of document is worthless, not even worth the sheet of paper on which it was inscribed. See Tsalibawa v. Habiba (1991) 2 NWLR (Pt. 174)

Moreover, no certificate of this imported man from Kenya was attached

to his report and none was tendered in court. The law is well settled that for an expert to be believed or his evidence countenanced, his certificates in the area he claims expertise as well as the certificates of his educational qualifications must be tendered, in order for the

court to be satisfied that he has such expertise. See: ANPP v. Usman (2008) 12 NWLR (Pt. 1101) 1 at 67.
Without prejudice to the foregoing, the entirety of his witness statement and the exhibits attached constitute a charade. He admitted the fictitous and anonymous nature of his

sources; the domain which he relied on factsdontlieng.com is not an ascertainable one- it is suspect; on page 6 of his report, under the heading, “Whistleblower’s Data Analysis of Facts don’t Lie website-www.factsdontlieng.com”, reads thus: