_— 1 PPE HOLDEN. USA ’ THE ELECTION. To_THE {OFFICE OF THE D ON THE raDR JARY, 2 [bs ExPeRO8e Eu PETITION NO:CA/PEPC/03/2023 BETWEEN: 1. MR. PETER GREGORY OBI PETITIONERS 2. LABOUR PARTY AND 1. INDEPENDENT NATIONAL ELECTORAL COMMISSION 2. | SENATOR BOLA AHMED TINUBU 3. | SENATOR SHETTIMA KASHIM 4. ALL PROGRESSIVES CONGRESS PETITIONERS’ FINAL WRITTEN ADDRESS IN RESPONSE TO THE 15t RESPONDENT’S WRITTEN ADDRESS 1.0. INTRODUCTION 1.1. This is the Petitioners’ Final Written Address and Reply Address in response to the submissions contained in the 1* Respondent’s Written Address dated and filed on 14 July 2023 (“1" Respondent’s Final Address”). My Lords, it is difficult to comprehend why the 1* Respondent, the supposed Independent National Electoral Commission abandoned its primary statutory responsibility of being an electoral umpire; and proudly, put on the toga of a candidate in the election it conducted. It tragically and embarrassingly, spent 5.5 pages of its address defending the ground on the non- qualification of 2" Respondent. Worse still, the 1* Respondent bluntly refused to release several important electoral documents to the Petitioners in spite of the Orders of Court and several visits to the 1** Respondent’s Headquarters by the Petitioners’ Counsel. In the case of PDP v. ALECHENU (2019) LPELR-49199 (CA), this Honourable Court admonished the 1 Respondent who appears to have misunderstood its public duty, thus: Often one finds cases where INEC plays games with election materials and would not allow the Petitioner(s) access to documents used in the conduct of the election, even with Court order(s) to produce same, as in this case, thus playing the cards of the declared winner, openly, to frustrate the Petition. If INEC is not whipped into line by the Court, to do its electoral duties properly, fairly, impartially and independently, elections in Nigeria will be and/or remain a fraud, and time and resources wasted to clone electoral fraudsters as leaders, against the noble spirit of the law and the Constitution... I think I should start by observing that INEC (Appellant) holds a very sensitive Office of public trust, with 12.0. 21. fenormous,_responsibilities, {undamental_to_the_selection. of _credible_leadership, subsistence and progress of the Nigeria, as a Nation.” . Contrary to the 1 Respondent's posturing in paragraph 1.03 of its Written Address to the effect that “the election was properly conducted in substantial compliance with the Electoral Act, applicable Regulations and Guidelines", the 1" Respondent set out in its ‘Address to diminish and degrade the importance of IREV to our electoral jurisprudence and democracy. The Petitioners will contend that the obvious non-compliance by the 1* Respondent with the mandatory requirements of the law in the conduct of the Presidential Election substantially affected the outcome thereof, for which the Honourable Court would be invited to nullify and set aside the said election, STATEMENT OF RELEVANT FACTS Prior to the conduct of the Presidential Election, the 3 Respondent had previously been nominated by the 4" Respondent as a Senatorial Candidate for Borno Central Senatorial District; and he remained so until 15" July 2022. In paragraph 2.04 of its Written Address, the 1“ Respondent falsely claimed that the 4" Respondent by letter dated 6" July 2022 and received on 13" July 2022 brought the voluntary withdrawal of the nomination of the 3 Respondent as a candidate for the Bornu Central Senatorial District to its notice.” The Notice of Withdrawal of a Candidate pursuant to Section 31 of the Electoral ‘Act vide which the 3“ Respondent purportedly withdrew as a candidate for Borno Central Senatorial District was, ex facie, received by the 1" Respondent on 15/7/2022. The said Notice of Withdrawal was included in the letter purportedly dated 6" July 2022 written by the 3% Respondent to the National Chairman of the 4" Respondent which said letter of 6" July 2022 was also, ex facie, received by the 1 Respondent on 15/7/2022. The 1* Respondent's statement that it received the said letter of withdrawal on 13" July 2022 is not only false but obviously contrary to the documentary evidence before the Court. The Petitioners will show that by the subsisting Judgments of this Court and the Supreme Court, a valid withdrawal of a candidate under the Electoral Act is consummated on the date the 1* Respondent is notified of such withdrawal. The 1* Respondent in paragraph 22 of its reply to the Petition stated as follows, “The 1* Respondent avers and shall at the trial content that the withdrawal of a candidates’ nomination for an election is effective from the date when his notice of withdrawal is conveyed to the i Respondent by the Political Party that nominated him”. In addition to the above, it is common knowledge that the 2" Respondent was a subject of an Order of Forfeiture made by the United States District Court, Northern District of Illinois, n Division (“the US District Court”) in Case No: 93C 4483. The Order of Forfeiture against the 2” Respondent which was admitted in evidence as Exhibit PAS, was in terms forfeiting the sum of USD $460,000 against him Bola Tinubu, which represents “proceeds of nareotics trafficking” and “money Inundering.”The virus of the constitutional disqualification of the 2" and 3“ Respondents as candidates in the Presidential election renders their purported declaration and return as the winners of the election null and void and liable to be set aside.2.4. 2.5, bursuant to the mandatory provisions of the Electoral Act 2022, the INEC Regulations fand Guidelines, and INEC Manual, the 1* Respondent (INEC) introduced the use of modern technology for the conduct of the 2023 General Election. By this, INEC represented and assured that it would use Bimodal Voter Accreditation System (BVAS) for the accreditation of voters in the polling units and the upload/transmission of the results of the election in real- time on the day of the election to the INEC Result Viewing Portal (IReV). However, contrary to the requirement of the law and in manifest disregard of its own representations, the 1% Respondent abandoned and discarded the much expected upload/transmission of the result of the election in real time on the day of the election from the polling unit to the IReV. Rather, and very strangely, blurred, unreadable and inaccessible documents/images were uploaded by the 1* Respondent to the IReV purporting same to be the result of the election in various polling units. These blurred images and inaccessible documents were purported to be the result of the election in the polling units. The net result of the upload of the blurred images on the IReV, was that the result of the election could neither be authenticated nor verified, and thus, lacked credibility and transparency. The 1" Respondent’s contention that the “collation of the election result” remained a manual process is patently false and seems to have disregarded the express provisions of the Electoral Act, Regulations and Manual for the election. Collation of election results at all the stages of the election process specifically provide for electronic transmission to the IReV which is part of the collation system under the Electoral Act. The authority of the Federal High Court determination in Suit No: FHC/ABJ/CS/1454/2022 relied upon by the 1* Respondent in its Final Address and heavily harped upon in its argument is per incuriam and in manifest contradiction of the binding later decision of the Supreme Court in Appeal No: SC/CV/508/2023, OYETOLA v. INEC delivered on 9" May 2023, in (2023) LPELR-60392 (SC). Despite the 1* Respondent’s claim that the hardcopies of the Forms EC8A were allegedly used for the manual collation of the election (which by that reasoning ought to be in the 1* Respondent’s custody/possession), the 1* Respondent nevertheless gave to the Petitioners as certified copies of the electoral Forms, including alleged Forms EC8As, blurred/blank/extraneous copies. The alleged hardcopies of the Forms EC8A claimed to have been used for the manual collation were neither produced in Court nor certified copies thereof tendered in Court by the 1* Respondent. In response to the Petitioners’ request and the Subpoena issued by the Honourable Court, the 1* Respondent blatantly failed to comply with the requirement of the law by refusing to provide the Petitioners with certified copies of the “top copies (Electoral Operations’ Copies) of the Form EC8A in the polling unit under paragraph 39 of the Regulations and Guidelines. The top copies/electoral operations’ copies of the Forms EC8A not produced by the 1* Respondent would have equally shown that the 1 Respondent, woefully and blatantly, failed to comply with the mandatory requirements of the Electoral Act, 2022. The only excuse invented by the I* Respondent in its Reply to the Petition was that the refusal to comply with the specific requirement of the law to upload and transmit the result of the election using the BVAS from the polling unit to the IReV as mandatorily required by law, was the occurrence of the alleged “technological glitches” on the day of the election. The Petitioners showed that the 1 Respondent’s IT Infrastructure deployed for the conduct of the Presidential Election was deliberately left vulnerable and created 3the existence of a backdoor for the upload of files as evident in the blurred/blanbvirrelevant images uploaded on the [ReV, The claim in paragraph 2.12 of the 1* Respondent's Address was completely debunked by the unchallenged evidence of the Petitioners’ Expert Witnesses to the effect that the purported “technical glitch that occurred on the e-transmission application hosted on the Amazon Web Services platform” is a mere invention by the 1 Respondent. The AWS Service Health Status for the six (6) regions wherein AWS hosts its servers (that is, Exhibits PCJ3A - F and PCJ4) clearly show that there was no technical glitch on any AWS Server hosted on any of the 6 regions on 25/2/2023 (the day of the Presidential Election) as alleged or at all. Although the Presidential election was conducted at the same time, on the same day, at the same respective polling units with the National Assembly (Senate/House of Representatives) elections, the results of the National Assembly elections were successfully uploaded/transmitted from the BVAS to the IReV Portal. Strangely, only the result of the Presidential election, equally held in the same polling units, using the same infrastructure, could not, according to the 1 Respondent, be uploaded/transmitted from the polling unit to the IReV as required by law. 2.6. The Petitioners provided unchallenged evidence that, the failure and neglect to upload/transmit the result of the Presidential election held on 25" February 2023 was a violation of the collation process prescribed under the Electoral Act, and also substantially affected the result of the election. It is also the Petitioners’ case that from the purported result of the Presidential election announced/declared by the 1" Respondent on 1* March 2023, the 2" and 3“ Respondents as Candidate of the 4" Respondent did not win one- quarter (25%) votes cast at the election held on the 25" February 2023 in the Federal Capital Territory, as required by the correct meaning and interpretation of the provision of Section 134 (2)(b) of the 1999 Constitution as amended. In paragraph 2.18-3.16 of its Final Address, the I‘ Respondent reproduced the evidence of the thirteen (13) witnesses called by the Petitioners. 2.7. The I* Respondent’s summary/analysis of the evidence of PW4 in paragraph 3.06, PW7 in paragraph 3.09, PW8 in paragraph 3.10 and PW12 in paragraph 3.14 thereof, is tendentious and intended to enable the 1* Respondent continue to pull wool over the eyes of the Court, including the Nigerian public that its deliberate non-compliance with the mandatory requirements of the Electoral Act and the subsidiary legislations made thereunder should be wished away. We will in the main body of our arguments below deal with the relevant aspects of the witnesses’ evidence as they relate to the cardinal issues for determination in this Petition. 3.0. ISSUES FOR DETERMINATION 3.1. The Petitioners’ issues for Determination are as follows: . Whether the 2" and 3™ Respondents are qualified to contest the Presidential election, by reason of the unchallenged facts and circumstances arising under Section 137 (1) (d), 142 (1) (2) of the 1999 Constitution and Section 35 of the Electoral Act 2022, in this petition.3. 4.0. 4, ether from the documentary evidence before the Honourable Court read and examined together with the unchallenged expert and technical evidence of the Petitioners’ Witnesses, the Petitioners proved that the non-compliance by the 1* Respondent with the relevant provisions of the Electoral Act, 2022 and the subsidiary legislations made thereunder substantially affected the outcome of the questioned Presidential Election held on 25" February 2023. Whether the declaration and returning of the 2 Respondent by the 1* Respondent as the winner of the Presidential Election held on the 25" February 2023 was not invalid for non-compliance with the provisions of the Electoral Act, (2022) and by virtue of the mandatory provisions of section 134 (2) (b) of the constitution of the Federal Republic of Nigeria 1999, as amended. SUBMISSIONS ISSUE ONE Whether the 2™ and 3" Respondents are qualified to contest the Presidential election, by reason of the unchallenged facts and circumstances arising under Section 137 (1) (d), 142 (1) Q)of the 1999 Constitution and Section 35 of the Electoral Act 2022, in this petition. The Petitioners’ submission on this Ground is predicated on the decision of the United States District Court, Northern District of Illinois, Eastern Division [‘US District Court], in Case No: 93C 4483, which ordered “that the funds in the amount of $460,000 in account 263226700 held by First Heritage Bank in the name of ‘Bola Tinubu represents the proceeds of narcotics trafficking or were involved in inancial transactions_in violation of 18 USC §§1956 and 1957”; and consequently, forfeited the said sum. The decision encapsulated in the Order is tendered as Exhibit PAS before this Court. The above Order made by the US District Court was sequel to a “Settlement Order of Claims to Funds held by Heritage Bank and Citibank” wherein Bola Tinubu (2" Respondent herein) and others claimed ownership of the sums in the accounts. The 2" Respondent, till date, has not challenged the Order of Forfeiture made by the US Court as shown above. It is important to underscore that the proceeding and forfeiture order in Exhibit PAS was based, among other things, on the revelation/findings in the Affidavit of Kevin Moss, a Special Agent and Investigator on financial crime, money laundering and narcotics trafficking, inter alia, that “interviews with investigators from the US Customs Service disclosed that the address at 7504 S. Stewart Avenue is known as a drop-off point for packages from Nigeria that contain white heroin...”; and that “in the application to open his account at First Heritage Bank, Illinois, Chicago, “Tinubu (2 Respondent herein) stated that his address was 7504 South Stewart, Chicago, Illinois." It is submitted that one of the provisions of the law which the court held was violated was 18 USC $ 1956 which outlaws money laundering. In DAUDU v FRN (2018) LPELR- 43637 (SC), the Supreme Court held that “Money laundering is a global scourge that affects countries worldwide, Nigeria not being an exception. It has been described as the washing of illegitimate money in a bid to make it appear clean or legitimate. It involves the process of transforming the proceeds of crime into ostensibly legitimate 543 44 oney or other assets.” Sec also KALU v FRN (2012) LPELR-9287 (CA) where this Honourable Court held that money laundering includes the “varied means used by criminals to conceal the origin of their activities. The term “laundering” |s used because these techniques are intended to turn “dirty” money into “clean” money, but laundering is not confined to cash.” In OKEWU vy FRN (2023) 9 NWLR (Pt 1305) 327 at 362 paras C-D, the Court equally upheld that narcotic trafficking and/or dealing in narcotic drugs are prohibited by law. Section 137(1)(d) of the 1999 Constitution (as amended) provides in clear and unambiguous words that: “A person shall not be qualified for election to the office of President if - (d) He is under a sentence of death imposed by any competent court of law or tribunal in Nigeria OR a sentence of imprisonment OR fine for any offence involving dishonesty or fraud (by whatsoever name called) OR for any other offence, im) ‘osed on him by ANY court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; OR”. The principle is basic that the use of the word “or” in the above provision bears the disjunctive meaning, in that it separates the provision in which it appears from the one following it. See Section 18(3) of the Interpretation Act, Cap. 123 LFN 2004; ABUBAKAR vy. YAR’ ADUA (2008) 19 NWLR (Pt. 1120) 1. It is accordingly submitted that given its clear, plain and proper meaning, as it should, the import and intendment of the Section 137(1)(d) of the Constitution reproduced above is that a person shall not be qualified for election to the office of President under two (2) circumstances, which, for the purposes of our argument, we shall categorize as two limbs — that is, ift (a) He is under a sentence of death imposed by any competent court of law or tribunal in Nigeria; OR He is under a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by ANY court or‘tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal. It is submitted that contrary to the Respondents’ conjectures, the Petitioners’ case is clearly based on the circumstance stated in the second limb of Section 137(d) of the 1999 Constitution above, and it should not be confused with any other circumstance contained in the Section which are clearly disjunctive. It is the Petitioners’ case that as the 24 Respondent “was fined the sum of $460,000.00...for an offence involving dishonesty, namely narcotics trafficking imposed” and money laundering by the US District Court, he was expressly disqualified by the Constitution from contesting the election. With due respect, the submissions on pages 22-25 of the 1" Respondent’s Written Address are incorrect and do not reflect the actual position of the law. It is submitted that the misconception of the 1 Respondent to the effect that a conviction must exist before a person will be disqualified from contesting for the office of the President stems from its unfortunate, albeit misguided, reliance on Section 137(1)(e) of the 1999 Constitution. Perhaps, the 1% Respondent needs to be reminded that “the averments contained in a petition, is the statement of claim of the petitioner while the reply of the respondent or respondents is the statement of defence so one can say that there are pleadings in an election petition”. See ANKA v. ABUBAKAR (2008) LPELR-3775 (CA) at 19-20". They also need to be reminded that “a plaintiffs pleading constitutes the foundation of his case as it were.” See ADERIBIGBE v. R.T.C.L.W (2013) LPELR-22222 (CA) at 64. 4 in a 2-23* and many others. The Respondents have no business setting up for the Petitioners ja case different from the one set up by the Petitioners. OJO-OSAGIE v. ADONRI (1994) LPELR-2386 (SC) at 19-20F. The Petitioners case is not based on Section 137 (1) (c), but rather on the provisions of Section 137 (1) (d) of the 1999 Constitution. It follows that all the evidence adduced and arguments canvassed by the Respondents (including Exhibits RA9, RA13 — RA16 to the effect that the 2™ Respondent has never been arrested, charged, convicted and sentenced with respect to any criminal offence in the US and elsewhere are off-point, irrelevant and ought to be discountenanced. It follows, also, that all the submissions that PW1 admitted that he had visited the US once in his life while the 2" and 3“ Respondents’ witness is a frequent visitor to the US are also irrelevant and ought to be discountenanced together with the submissions that the 2% Respondent “has always enjoyed rights of ingress and egress to and from the US, a right which anyone who is burdened with a criminal forfeiture cannot enjoy.” Obviously, these invented excuses have no bearing with the Petitioners’ case. Ex facie, Exhibit PAS is a documentary evidence which is certified, sealed, notarized and authenticated by the United States Court which issued it. Exhibit PAS fully complied with the provision of Section 106 (h)(i) of the Evidence Act 2011, and it is in conformity with the decision of this Court in MV DELOS v. OCEAN STEAMSHIP (NIG.) LTD. (2004) 17 NWLR (Pt. 901) 88 at 108 - 109#* (CA) which interpreted a similar provision and held that “a party who intends to rely on the judgment of a Foreign Court must comply with either of two options, namely: (a) by sealing the judgment with the seal of the foreign court; or (b) by a copy certified by the legal keeper with a certificate or of a notary public or of a consul or diplomatic agent stating that the copy is duly certified by the officer.” That is all the law requires. In that case, this Court further held at pages 108-109 thereof that “Under the Nigerian Evidence Act, if the foreign judgment (Exhibit FA3) [Exhibit PAS in the instant Petition] had been sealed with the seal of the New York Court or had been certified by it, it would have been admissible in evidence.” In this case, the US Court proceedings tendered have been so sealed, certified and notarized; hence, they are admissible in evidence. It is instructive to also submit that in MVD DELOS supra, the Court went further to hold that a certified copy of foreign Judgment such as Exhibit PAS is capable of operating as estoppel per rem judicatam once pleaded and tendered in evidence. Having regard to the foregoing definitions of “money laundering", there is no doubt that its nature and character clearly involve dishonesty on the part of the persons who engaged in money laundering, as in the case of the 2" Respondent. In Black’s Law Dictionary, 6 edition, page 468, "Dishonesty" is defined as "disposition to lie, cheat, deceive, or defraud, untrustworthiness; lack of integrity. Lack of honesty, probity or integrity in principle, lack of fairness and straightforwardness, disposition to defraud, deceive or betray." It is therefore, submitted that, the 2% Respondent against whom an Order of Forfeiture was made in Exhibit PAS, which said Order of Forfeiture, has been shown to be the same as a fine, is within the meaning and intendment of Section 137 (1) (d) of the 1999 Constitution as amended, not qualified to contest the Presidential election held on 25" February 2023. Your Lordships, are on this ground urged to uphold the Petitioners claims, seeking for the disqualification of the 2" Respondent.4 he second arm of the Petitioners’ case under Ground | of the Petition is that the 4 Respondent was rendered purported sponsorship of the 2nd and 3rd Respondents by the 1 invalid by reason of the 3" Respondent knowingly allowing himself to be nominated as the Vice Presidential Candidate whilst he was still a Senatorial Candidate for the Borno Central Constituency. (Sce paragraphs 21-27 of the Petition). This is based on Section 142 of the 1999 Constitution (as amended) which provides as follows: (1) Im any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominat nless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice- President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid, (2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President. It is also based on Section 35 of the Electoral Act 2022 which provides that: “Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination is void.” Undoubtedly, My Lords, it has been held by this Court that this issue of double-nomination as raised by the Petitioners “jg stricto sensu not one of ‘party nomination’ under section 87(9) of the Electoral Act 2010 (now section 84(14) of the Electoral Act 2022) and can comfortably be brought under the provisions of Section 138(1) of the Electoral Act 2010 (now Section 134(1)(a) of the Electoral Act 2022). See APC y. CHIMA (2019) LPELR-48878 (CA); ACHILONU v. CHIMA (2019) LPELR-48837 (CA) at 6-10. To prove this case, the Petitioners tendered Exhibits PAI, PA2, PA3 and PA4. There is no doubt that by Exhibits PA2 and PA3, the 3" Respondent was the nominated candidate for Borno Central Senatorial District for the 2023 general election. That nomination was never withdrawn as required by law until on the 15" day of July 2022, vide Exhibit PA3 as can be seen in the INEC Form EC 11C before this Honourable Court. There is also no dispute that whilst still being the nominated candidate as can be seen in Exhibit PA3, and while his said nomination was never withdrawn then as required by law, the 3% Respondent knowingly allowed himself to be nominated as Vice-Presidential Candidate on the 14" of July 2022 as can be seen in Exhibit PA1, i.e. INEC Form EC 11A before this Court, It is submitted that from these Exhibits before Your Lordships, there is nothing to show that the nomination of the 3“ Respondent as Senatorial candidate for Borno Central was withdrawn as required by law before he knowingly accepted his nomination as Vice Presidential Candidate (See again, Exhibits PA1-PA4). Flowing from above, we submit that the letter of 6 July 2022, purportedly written by the 3 Respondent withdrawing his candidacy does not, and cannot, amount to withdrawal of his nomination natorial Candidate. This is because, contrary to the 1 Respondent’s agitation, the procedure for withdrawal of candidate is clearly provided for in Section 31 of the Flectoral Act 2022 which states that: “A candidate may withdraw his candidature by 8jotice in writing signed by him and delivered personally by the candidate to the litical Party that nominated him for the election and the politi convey such withdrawal to the Commission not later than 90 days to the election.” (Underlining ours, for emphasis). What emerges from this part of Section 31 underlined above is that; (a) withdrawal of nomination cannot only be done by the political party and not the candidate; and (b) the withdrawal shall_be conveyed to the Commission before it becomes effective or operational. Indeed, in GBOLARUMI y. PDP (2019) LPELR-48282 (CA) at 38°, this Court rightly interpreted Section 31 of the Electoral Act 2022 [then Section 35 of the Electoral Act 2010, as amended] and accordingly held that: “The processes in the withdrawal comprise notification to the Political Party and the Political Party to conyey to the commission - two ideas conjoined by a conjunctive article "and". The two events must be true and present to constitute the event. It is the notification to INEC that completes the event." (Underlining ours, for emphasis). Adverting to the facts of the instant case, this means that as at 6 July 2022 when the 3‘ Respondent merely wrote his so-called withdrawal of candidacy, he was still for all intent and purposes the nominated senatorial candidate of the 4" Respondent for the Borno Senatorial District. Contrary to the 1* Respondent’s erroneous submissions, he [the 3 Respondent] had not completed the process of withdrawal of his candidature as a Senatorial Candidate for Borno Central Senatorial District, which, as shown above, “is the notification to INEC” not later than 90 days to the election. It follows that unless and until the withdrawal of nomination of the 3 Respondent is communicated, conveyed and notified to the 1* Respondent in the appropriate Forms as required by law, the nomination of the 3 Respondent was still subsisting and valid at all material times when the 3% Respondent knowingly accepted nomination as Vice-Presidential candidate. 4.10 At pages 26 ~ 28 of their Final Written Address, the 1* Respondent placed heavy reliance on the Judgment of the Supreme Court in SC/CV/S01/2023 — PDP v. INEC with a view to showing that the 3 Respondent duly withdrew his candidature for the Senatorial Election vide his letter dated 6" July, 2022. With due respect, My Lords, this submission is misconceived and the said Judgment of the Supreme Court does not avail them in the circumstances of this case. This is because, in the first place, it is common ground that right from the Federal High Court to the Supreme Court, that case was not decided on the merit but on the threshold issue of lack of /ocus standi on the part of the plaintiff/appellant therein. It follows, therefore, that the statements/passages in the Judgments of Okoro, Agim and Ogunwumiju, JISC, being relied upon by the 2" and 3" Respondents herein constitute mere obiter dictum. In cases too numerous to mention, the Supreme Court has held that: “An obiter dictum of the Supreme Court is clearly not binding on this Court or indeed on the lower Courts, for obiter dicta, though they may have considerable weight are not rationes decidendi and are, therefore, not conclusive authority.” See AMADI v. WOPARA (2021) LPELR-58286 (SC), and the many cases cited therein. This being so, it is inappropriate and strictly forbidden for the 2" and 3% Respondents to seek to benefit from the obiter dicta of the Supreme Court. As the Supreme Court itself underscored in BAMATYI y. STATE (2001) 8 NWLR (Pt. 715) 270 at 285°: “It follows, in my respectful view, that the introduction of Nnaemeka- 9jsgu JSC’s observation in Kotoye’s case was unnecessary for reaching » decision in J tne Nwaokolo’s case. That also goes for the whole gamut of the observation of Ona JSC which, I think, should be regarded as mere obiter in the circumstances. The esent appellant cannot rely on and di sn ” 11 The upshot of the above exposition is that the 1* Respondent’ gination that the 3% Respondent withdrew his candidacy in the Senatorial Election when he wrote the letter dated 6" July 2022 without completing the process by conveying/notifying same to the 1* Respondent, is wrong in law and in fact. The evidence before the Court is that the letter was received by the I" Respondent on 15 July 2022 after he had accepted his nomination as Vice-Presidential Candidate. To accept the Respondents’ interpretation will not only do violence to the clear provision of Section 31 of the Electoral Act 2022 but will also turn the law on its head. There must be positive evidence that the requirements of section 31 of the Electoral Act 2022 were met and or satisfied before the said withdrawal and subsequent acceptance of another nomination can be valid and effective. From Exhibits PA1-PA4 above, it is clear that the 3 Respondent accepted nomination as Vice Presidential Candidate of the 2 Respondent on the platform of the 4" Respondent when both the 3“ and 4" Respondents knew that the nomination of the 3 Respondent as Senatorial Candidate for Borno Central Constituency was subsisting and not withdrawn. In the case of EKPE v. ITANJAH (2019) LPELR-48462 (CA), this Court (per Agim, JCA; now JSC) interpreted the same Section 31 of the Electoral Act 2022 and held that all the features of the provision, including the requirement that “the political party shall convey such withdrawal to the commission”, must co-exist before there can be a valid withdrawal of a candidate. The question under Section 35 of the Electoral Act 2022 is not whether the 3 Respondent withdrew his candidature but whether he knowingly allowed himself to be nominated by more than one political party or in more than one constituency whilst still a nominated candidate in an election. It is also pertinent to add that the entire Federation of Nigeria shall be and has always been regarded as one Constituency with respect to election to the office of President and Vice President; and that besides the Constituency for the office of President and Vice-President, there are other Constituencies within the Federation, including Senatorial Constituencies, each being distinct for the purpose of elections into the respective offices. 4,12 In the instant case, what the 3% Respondent did on the 14* of July 2022 was to allow himself to be nominated as Vice Presidential Candidate, while he was still the senatorial Candidate of the 4" Respondent in Borno Central District Constituency. The 3 Respondent cannot claim ignorance of the law on what constitutes valid withdrawal of candidate or the consequences of breach of Section 31 of the Electoral Act 2022. The law makes his acceptance of nomination while still a nominated candidate for another constituency void. On the basis of all the above submissions, we urge that the 2" and 3 Respondents’ arguments be discountenanced. We also urge that the 2 and 3" Respondents be also disqualified on this ground, the reason being that their joint ticket is vitiated by the disqualification of the 3" Respondent whose nomination is, certainly, void. Both candidates disqualified are deemed not to be candidates at the Presidential Election. See Section 142 of the 1999 Constitution (as amended); PDP v. DEGI-EREMIENYO (2020) LPELR-49734 SC. 10For the reasons given above, we urge Your Lordships to uphold this ground of the ‘objection and hold that in the circumstance, all the votes cast for the 2" and 3” Respondents in the Presidential Election are wasted votes. See APC v. MARAFA (2020) 6 NWLR (Pt. 1721) 383 SC. ISSUE TWO Whether from the documentary evidence before the Honourable Court read and examined together with the unchallenged expert and technical evidence of the Petitioners’ Witnesses, the Petitioners proved that the non-compliance by the 1" Respondent with the relevant provisions of the Electoral Act, 2022 and the subsidiary legislations made thereunder substantially affected the outcome of the questioned Presidential Election held on 25" February 2023. 4.14 In the ensuing paragraphs, we will show that by the unchallenged evidence before the Honourable Court, the Petitioners established that the 1* Respondent who had the statutory duty to conduct the Presidential election, manifestly threw overboard the mandatory requirements of the Electoral Act, and the subsidiary legislations made thereunder, for the conduct of the 2023 General election, during the collation of the results of the questioned Presidential election. The Petitioners will urge the Honourable court, to uphold that non- compliance with the binding statutory provisions in the conduct of the Presidential election, substantially affected the purported declaration and return of the 2" and 3" Respondents as the alleged winners of the Presidential election, The 1* Respondent argued that, where a complaint of non-compliance is not based on the express provisions of the Electoral Act, 2022 but on the provisions of Regulations or Guidelines of the 1% Respondent, such complaints by the authority of NYESOM v PETERSIDE (2016) NWLR (Pt 149) 71 (SC) cannot ground an action to question an election. It relied on the pronouncement in the said decision that such complaint “shall not of itself be a ground for questioning the election.” The submission is misplaced and the case relied ‘on did not support their case. It is submitted that in NYESOM V. PETERSIDE, the decision of the court was in relation to “an act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election” under Section 134(2) of the Electoral Act. It is respectfully submitted that a specific provision in a subsidiary legislation made under the Electoral Act such as the Regulations and Guidelines and Manual for Election Officials cannot rightly be categorised as mere “instruction or directive”.We will deal with this anon. Suffice it to submit that the authority of the binding Supreme Court decision in FALEKE y. INEC (2016) NWLR (Pt 1543) 61 at 156, D-F, is emphatic that, “the Manual for Election Official 2015 (updated version) [which is substantially same as Manual for Election 3], issued by INEC are not mere instructions or directions; rather, they the Constitution and the Electoral Ac 4.15 Whilst still relying on its misconception, the 1* Respondent heavily relied on the decision of the Federal High Court in the above referenced Suit No: FHC/ABJ/CS/1454/2022 (Exhibit X1) and argued that “electronic transmission of results to the IREV is not a prescription of the Electoral Act, 2022... any non-compliance with the stipulation of the nuj» Respondent's Regulations and Guidelines which is not a direct prescription of the Flectoral Act cannot form the basis to question an election.” The 1* Respondent further argued that the said decision of the Federal High Court relied upon by it “settled the question that the I" Respondent was not bound to collate the result electronically”, and cited in support FIDELITY BANK v. THE M.T. TABORA (2018) LPELR — 445054 (SC); EDEM v. ISHIE (2022) LPELR — 58959 (SC). It is conceded that in Exhibit xl, the Federal High Court held that “In view of the above, I am findings (sic) that by the provisions of Sections 50(2) and 60(5) of the Electoral Act, 2022 the correct interpretation of the said statutes is that the Defendant (Independent National Electoral Commission) is at liberty to prescribe the manner in which election results could be transmitted and I so hold.” With very great respect, the 1" Respondent’s submission that electronic transmission of the results to the IReV is not a prescription of the Electoral Act 2022 is untenable and completely in disregard of the correct position of the law as espoused by the Supreme Court in the recent case of OYETOLA v. INEC (2023) LPELR-60392 (SC). In that case, the Supreme Court clarified that, while “there is no part of the Electoral Act and INEC Guidelines that require that election result of a polling unit should on the spot during the poll be transmitted to the INEC National Election Register of data base: “...the Regulations provide for the BVAS to be used to scan the complete result in Form EC8A and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result Viewing Portal (IReV)....” (Underlining ours). The Supreme Court in the OYETOLA’s case (supra) in very commendable details devoted sufficient attention to review/reproduce the relevant provisions in Section 62 of the Electoral Act 2022, and paragraph 38 of the Regulations End Guidelines, and specifically held: “As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day. It is clear from the rovisions of Regulation 38(i) and (ii) that the Collation System and Result Viewii Portal are different from the National Electronic Register of Election Results. The Collation System and Result Viewing Portal are operational during the election as part of the process, the National Electronic Register of Election Results is a post- “lection record and is not part of the election process." (Underlining for emphasis) 4.16 Obviously, the 1* Respondent misapprehended the ratio decidendi of the Supreme Court Judgment in the above case with respect to electronic uploading and transmission as part sf the election process. As shown above, the decision in OYETOLA v. INEC (supra) properly read and understood, supports the Petitioners’ contention that the uploading/electronic transmission of the results of the election in real time or during the election, from the polling units to the IReV, is a mandatory requirement of the electoral process. It is further submitted that the delusion under which the 1* Respondent suffers, ig the erroneous imagination that electronic transmission in real-time or during the election, from the polling units to the IREV, is the same thing and/or is to be confused or 12juxtaposed with the collation of the results of the election in the National Electronic Register of Election Result provided for by Section 62 (2) and (3) of the E lectoral Act, 2022. The Supreme Court in the case of OYETOLA v. INEC supra, appreciated the distinction between the National Electronic Register of Election Result and the Collation system of the election Tesults by publishing to the IReV. Whilst the National Electronic Register of Election Result was held as a post-election record and not part of the election process, the Supreme Court emphatically determined that “the collation system and the Result Viewing Portal (IREV) are operational during the election as part of the process.” It is submitted that under the doctrine of stare decisis which is a cardinal feature of our Jurisprudence, the decision of the Supreme Court on a point is overriding and final and superior to any pronouncement by any other lower Court on the same point. Indeed, by the mandatory provision in Section 287 (1) of the 1999 Constitution as amended, all authorities and persons including courts with subordinate jurisdiction below the Supreme Court are bound to enforce and give effect to the decision of the Supreme Court on any point. It is, therefore, submitted that the decision of the Federal High Court in LABOUR PARTY v. INEC (supra) cannot stand in the face of the subsisting decision of the Supreme Court in OYETOLA v. INEC supra, and therefore, ought to be discountenanced. 4.17 Further to the above, it is common ground that in proof of its case, the Petitioners called as witnesses PW2; Anthony Chinwo, a Cloud Engineer/Architect, PW3; Staff of Channels Television, PW4; A Professor of Mathematics, who produced and tendered expert report of the data analysis on the result of the 25" February 2023 Presidential Election, PWS5;Staff of Arise TV, PW6; Staff of AIT, PW7; A Cloud Engineer/Architect and Employee of Amazon Web Services and PW8; the Cyber security and Risk Advisory Consultant among other witnesses. The above identified witnesses gave expert and specialist/technical evidence before the Honourable Court. It is pertinent to point out that these expert witnesses filed Witness Statements on Oath which they respectively adopted as their Evidence In-Chief before this Honorable Court. My Noble Lords, it is submitted that despite the vigorous cross-examination of the expert witnesses, their evidence on the particular subject they testified remained unchallenged. It is common ground that, preparatory to the conduct of the 2023 General Elections, the 1* Respondent publicly assured/represented that as enjoined by the Electoral Act, 2022, it would use technology for the conduct of the election. By the use of technology, the 1* Respondent assured that it would use the BVAS for both accreditation of voters, upload and transmission of the results of the election on the day of election in real time to the INEC Result viewing portal (IREV). The upload and transmission of the result of the election from the polling units, using the BVAS to the IREV was a significant feature of the 2023 General Election which the I“ Respondent severally represented and marketed to both the Nigerian public and the international community as a major innovation/introduction that would guarantee transparency in the conduct of the 2023 General Election. This representation, described by the 1“ Respondent as a major innovation, was established before the Court through the evidence of PW3, PWS and PW6. From the video recording shown and played in open Court as Exhibits PBH3, PBH 4, PCH and PCG2, the above representation was made locally here in Nigeria, and also, to the International Community at Chatham House London, during which the said 1% Respondent's Chairman reaffirmed that the 1* 13A espondent was irrevocably committed to the online real-time transmission of the election results from the polling units to the IREV on the day of the election. ysis pertinent to underscore that the words “electronically transmivtransfer” is a technical / ferm which refers to transfer of digital files. In fact, the word “transfer” comes from the ICT protocol called “File Transfer Protocol” which is a means of transmitting a file from a device such as the BVAS to a Server such as the IReV. By the provisions of Section 60(5) of the Electoral Act 2022, it is clearly provided that, “The presiding officer shall transfer the results including total number of accredited voters and the results of the pallot in a manner as prescribed by the Commission”. It is submitted that by Section 60(6) of the Electoral Act, a contravention of the duties incumbent on the Presiding officer as mandated by Section 60 of the Act, is punishable upon conviction with a fine or imprisonment. It is further submitted that by the penal nature of the duties under Section 60(5) of the Act, the requirements for the presiding officer to “transfer the resul manner prescribed by the Commission”, connotes that the clear intention of the law maker is that any non-compliance with the sub-section, will attract serious consequences. 4.19 Pursuant to its mandate under Section 60 (5) of the Electoral Act, 2022 referred to above, the 1 Respondent explicitly provided in the Regulations and Guidelines for the Conduct ‘of the Election 2022 and the Manual for the Election Officials 2023 the step by step processes for the collation, uploading and transmission of the result of the election from the Polling units to the IREV. It is respectfully submitted that the Regulations and Guidelines and the Manual for Election Officials made by the 1* Respondent are subsidiary legislations promulgated by the 1* Respondent in accordance with the provision of Section 148 of the Electoral Act 2022. See; FAYEMI V. ONI 2009 LPELR: 4146 (CA) 80-93; In AIR COMMODORE YUSHAU V. INEC (2019) LPELR-49629 (CA), this Honourable Court was emphatic that “the manual for the conduct of elections and their guidelines are meant to be obeyed”. See also: BUHARI v. OBASANJO (2005) 2 NWLR (Pt. 910) 241 at 511; CPC v. INEC (2011) 18 NWLR (Pt 1279) 493 at 592", See also FALEKE v. INEC (Supra). A contravention of the duties incumbent on the presiding officer as mandated by Section 60 of the Act is punishable upon conviction with a fine or imprisonment under Section 60(6) of the Act. It is submitted that, ordinarily, the use of the word “shall” in Section 60(5) of the Act, connotes a mandatory requirement/obligation. However, it is further submitted that with the corresponding penal provision under Section 60(5) of the Act for non-compliance, the intendment of the law maker is that the requirement in Section 60(5) must be strictly followed and will not admit of any deviation. As provided in Section 60 (5) of the Electoral Act, the 1° Respondent prescribed the manner for the “transfer of result including total number of accredited voters and the results of the ballot” in its Reaulations and Guidelines and the Manual for Election Officials. Paragraph 38 (j) and (i) of the Regulations and Guidelines specifically provides that: “on completion of all the Polling Unit voting and results procedures, the Presiding Officer shall: (i) Electronically transmit or transfer the result of the polling unit, direct to the collation system as prescribed by the commission; (ji) Use the BVAS to upload a scanned copy of the EC8A to the INEC result viewing portal (IReV) as prescribed by the commission. Significantly, from a combined reading of the above paragraph 38 (i) & (ii) together with the related provision in paragraph 48 (a) & (b) of the Regulations and 14fGuidelines, the duty to electronically transmit the result of the election directly from the olling unit is further emphasized with the ultimate injunction that, the result tlectronically transmitted/transferred, shall serve as the benchmark for a proper collation of the result of the election in a polling unit. 20 It is further submitted that, the Manual for Election Officials contain detailed provisions on how to use the BVAS for the upload/electronic transmission of the election result from the polling unit to the IReV, See pages 36 to 49 of the Manual for Election officials. Indeed in paragraph 2.9.0, at page 36 of the Manual for Election Officials, 1" Respondent under the sub-heading “electronic transmission/upload of election result and publishing to INEC Result Viewing (IReV) Portal”, captured the fundamental importance for the requirement of electronic transmission of the result of the election as follows: “One of the problems noticed in the electoral process is the irregularities that take place between the Polling Units (PUs) after the announcement of results and the point of result collation. Sometimes results are hijacked, exchanged, or even destroyed at the PU, or on the way to the Collation Centers. It becomes necessary to apply technology to transmit the data from the Polling Units such that the results are collated up to the point of result declaration. The real-time publishing of polling unit-level results on IReV Portal and transmission of results using the BVAS demonstrates INEC’s commitment to transparency in results management. This commitment is backed by Sections 47 (2), 60 (1, 2, & 5), 64 (4a & 4b) and 64 (5) of the Electoral Act 2022, which confers INEC with the power to transmit election results electronically. The system minimizes human errors and delays in results collation and improves the accuracy, transparency, and credibility of the results collation process”.(underline supplied by us for emphasis). It is in furtherance of the above provisions in the Electoral Act, Regulations and Guidelines and the Manual for Election Officials, that the 1* Respondent through several media and press briefings represented/reassured Nigerians and the International Community of its commitment to the compliance of the law by the electronic transmission of the election results from the polling units using the BVAS to the IReV and that this commitment and compliance were not negotiable. ‘The appropriate question, is whether the 1* Respondent having publicly represented/assured that it was irrevocably committed to complying with the law by electronic transmission/upload of election results from the polling units to the IReV Portal as prescribed by the 1% Respondent itself, is 1* Respondent not estopped from reneging fiom this publicly given assurance/representation? See ACCESS BANK vy. NSITF (2022) LPELR-57817 (SC) wherein the Supreme Court reiterated that “by operation of the veritable rule of estoppel, a person ought not to be allowed to blow hot and cold, to affirm at one time and deny at another time, that is to say, to approbate and reprobate. See also: AG RIVERS STATE v. AG AKWAIBOM STATE (2011) 8 NWLR (Pt. 1248) 31 at 157°; ACCORD ENGINEERING LTD v. FAJUKE (2022) LPELR-58074 (CA) at 314; Section 169 of the Evidence Act, 2011. The above assurances/representations given by the 1* Respondent that it will comply with the mandatory requirements of the Electoral Act, 2022 and the subsidiary legislations made thereunder were further given impetus in a Press release dated November 11, 2022, captioned and signed by Festus Okoye Esq, National Commission and Chairman Information and Voter Education, which re-emphasized that the “Commission has 15eatedly reassured Nigerians that it will transmit result directly from the polling nit.--the IReV is one of the innovations introduced by the Commission to ensure the integrity and credibility of elections in Nigeria. It is therefore inconceivable that the / Commission will turn around and undermine its own innovations.” The above Press Release was admitted as Exhibit PCK2 sequel to the evidence of PW8 who, by paragraph 26 of his Witness Statement on Oath (evidence-in-chief) gave 4 detailed scientific evidence that “the said Press release was part of the resources/materials published and issued by INEC from 2018 - 2023 and contained in the INEC website, http://wp1.inecnigeria.org. The above website with the uniform resource identifier RI) ://wp1 inecnigeria,org/wp-content/uploads/2022/11/1-2-500 749. jes contains the INEC Press Release dated November 11, 2022 captioned “Alleged Plot to Abandon the Transmission of Polling Unit Results to IReV Portal” and signed by Festus Okoye, Esq. National Commissioner and Chairman Information and Voter Education Committee. A Copy of the above Press Release, which I downloaded from the publicly available URI is attached as Exhibit B.” Identifier) in paragraph 26 422 My Lords, a mere click on the above URI (Uniform Resource the above referenced Press of the witness statement of PW9, will automatically open as 7 release dated 11" November, 2022, My Lords will recall that the 1* Respondent, in response to the Subpoena dated 13" June 2023 through its Deputy Director, Legal Drafting Department, falsely claimed that the above referenced Press Release was not in existence and was not in INEC’s record. Significantly, despite this bare-faced denial, the 1* Respondent did not, at the trial nor in its Final Address, make any attempt to challenge the authenticity of Exhibit PCK2. It is submitted that when the Press Release in Exh. PCK2 is examined together with the representation/assurances given by the 1* Respondent as per the evidence of PW3 (Exh. PBH3 & PBH4); PW5 (Exh. PCJ2) and PW6 (Exh PCHI), it follows that the requirement for the uploading/electronic transmission of the result of the election in real time and during the election, from Polling units using the BVAS to the IReV, is a fundamental/indispensable requirement of the election process under the Electoral Act, 2022. Whilst relying on the Federal High Court Judgment in Exhibit X1, the 1 Respondent quoted the provisions of Paragraph 92 of the Regulation and Guidelines and contended that it adopted Manual Collation using “hardcopies of the exact results from the polling units taken to the Collation Centre for the purpose of collation” and that “electronic transmission of results to the IReV is not a prescription of the Electoral Act 2022". According to the 1* Respondent in paragraph 5.38 of its Address, “There is nowhere in the Regulations and Guidelines of the I* Respondent that prevents collation of the results until all results are uploaded on the 1* Respondent's iReV. The only accommodation made for the use of results uploaded on the iReV’ in the collation process is where there is discrepancy in the hard copy of the I* Respondent's result and those issued to a Political Party Agent and where the 1* Respondent's hard copy is not available.” 4.23 Before proceeding further, it is important to underscore the point that in response to the several requests by the Petitioners for the certified true copies (CTCs) of the electoral forms, including Forms EC8A, in the custody/possession of the 1* Respondent, the 1* Respondent issued as CTCs of these electoral forms blurred copies, blank papers and copies of irrelevant images which were certified as the result of the election. My Noble 16cords, the pertinent question is; if the 1* Respondent manually collated the results of the /jections with the hard copies of the EC8As as is being claimed, and if the hard copies are available in the possession of the 1* Respondent, why did the 1" Respondent not certify and issue them to the Petitioners? More importantly, why did the 1* Respondent not roduce copies of these alleged hard copies purportedly used for the manual collation before the Honourable Court? Why were the certified copies given to the 1* Respondent not made from these alleged hard copies used for the manual ‘collation? Why did the 1* Respondent give the the Petitioners blurred/irrelevant images and blank A4 papers as certified copies of the results of the election in the Polling units(Forms EC8As)? These are questions that the 1 Respondent has not been able to provide any answers to. It is submitted that the blurred copies/extraneous images and blank papers cannot by any stretch of imagination be described as the authentic version of the actual Forms EC8A containing the records of the figures obtained by the Candidates in the respective polling units, yet INEC certified these blurred copies/images as true copies of what is in their possession. In DICK vy OUR AND OIL CO. LTD (2018) 14 NWLR (Pt 1638), it was held that: “A certified copy is a copy of a document certified as true by the officer who has the custody of the original.” In OKECHUKWU UZOMA v DR VICTOR ADODIKE (2009) LPELR-8421 (CA), it was held that: “thus, the term ‘Certified True Copy’ or ‘certified copy’, for short, means a duplicate of an original (usually) official docament certified as an exact reproduction by the officer responsible for issuing or keeping the original. It is termed or called ‘attested copy”; exemplified copys ‘verified copy’ etc. See Black’s Law Dictionary 8" Edition 2004 at 239 & 360.” Per SAULAWA, JCA (page 24, paras. A-D). 4.24 In paragraph 5.53 - 5.54 of its ‘Address, the 1* Respondent further attempted to discredit the evidence of PW4 which he suggested should be treated “with a pinch of salt” and relied on several authorities. The 1% Respondent seems not to have appreciated the significance of the expert report of PW4 which was not challenged nor countered by any other evidence before the Court. With respect to the unlawful declaration and return of the 2" Respondent as the winner of the Presidential election, it is submitted that the forensic analysis made by PW4 shows clearly that the Petitioners won. the election held in Rivers and Benue States and obtained the majority of lawful votes cast in those States. It is submitted that from the purported result of the election in the Form EC8As, it was claimed that the 2™ Respondent as the Candidate of the 4" Respondent, won the Presidential election in both Rivers and Benue State, and thereby, adding those two (2) States (Rivers and Benue States) to the number of States in the Federation wherein the 2" Respondent as the Candidate of the 4 Respondent met the Constitutional requirement as provided in Section 134(2)(b) of the 1999 Constitution as amended, of having not less than one-quarter of votes cast in at least two-thirds of all the States in the Federation. Clearly, by the unchallenged evidence of PW4 as succinctly explained in the Data ‘Analysis of the Rivers and Benue States scores, the Petitioners lawfully won the election in the two States. By evidence of PW4 in paragraph 5 (c) a - g (i -iii), 5 (d) a - f (ito iii), ifthe entirety of the evidence of PW4, which is supported/corroborated by Report of Data Analysis of the Result from February 25", 2023 Presidential Election Rivers and Benue States, the purported declaration that the 2" Respondent won the Presidential election in those 2 States is wrong. The Executive summary of the Rivers State Scores 17rt referred to above which is on page 3 of the said Report is specifically referred to, jn similar vein, the Executive summary of Benue State Scores on page 3 of the said Benue state Report is also referred to. It is further submitted that a proper understanding of the actual summation of the scores obtained by the Petitioners and the 4° Respondent in kes and Benue States, will clearly show that the Petitioners won the election in both states. ,25 Part of the Report by PW4, Appendix F attached to the Report of Data Analysis of the Result from February 25%, 2023 Presidential Election is a Spreadsheet summary of National over-voting count, whilst Appendix G is the Spreadsheet of the polling units affected by over-voting on state by state basis. None of these Data Analysis has been challenged nor controverted by the Respondents in this Petition. With specific reference to the 18,088 polling units whose purported result of the election uploaded on the IReV are blurred copies, Appendix E attached/referred to in the evidence in chief of PW4 refers to the 18,088 blurred copies of blank/unreadable and irrelevant images. My Lords, it is not the case of the I* Respondents (including the 2"! and 3% Respondents), that the 18,088 blurred copies do not exist, nor did the Ist Respondent for that matter, proffer any explanation for the blurred copies of the election result uploaded on the IReV and certified by the 1* Respondent as the true copies. The 1* Respondent referred to the evidence of PW4 and argued that it was shown under cross-examination that his Report had been concluded and made after the institution of the Petition and those Reports lack probative value; that the evidence shows that the Report was not in existence at the time they were made. My Lords, in his Witness Statement on Oath PW4 clearly stated that he was engaged by the 1* Petitioner on 20" February 2023 to carry out the data analysis of the election result state-by-state and determine whether the result announced by INEC at the conclusion of the election on 25/2/2023 matched with the results in the INEC IREV portal. It is not true that the Report produced by PW4 was not in existence at the time of the filing of the Petition. 4.26 It is submitted that the documentary evidence of the upload of 18,088 polling units in Forms EC8A purported to be the result of the election (Form EC8As) which was captured in the Report produced by PW4 was neither challenged nor controverted. The blurred copies were not readable nor contain any relevant information including scores of Candidates obtained in the polling unit on the day of the election. RWI admitted that he could not see/read any figures on the blurred copies of the purported Form EC8A shown to him in the open court. The Data Analysis for the 18,088 polling units being blurred copies of Form EC8As, show that the total number of accredited voters and voters who collected their PVCs in these polling units were 2,565,269, and 9,165,191 respectively. The above figure of 2,565,269 votes cast by accredited voters (or 9,165,191 voters who collected their PVCs) in these 18,088 polling units is far more than the purported margin of lead in the INEC announced result of the election, between the 2" Respondent as the Candidate of the 4" Respondent and the Petitioners, for which the election result purportedly declaring the 2" and 3° Respondents as the winners of the election ought to be nullified/invalidated.The unchallenged Data Analysis further confirm that, the purported result of the election in the polling units in Form EC8As in 39,546 polling units were inaccessible on the IReV. In these 39,546 polling units, 23,119,298 registered voters collected their PVCs, whilst 5,532,553 voters were accredited to vote in these polling 18fis. nee the Figure of 23,119,298 and/or 5,532,554 referred to above, are far more than the puro! sf oe of lead in the INEC announced return of the election, for which the fection itself ought to be declared as inconclusive, invalid and or null and void. 7 The ” Respondent also attempted to discredit the evidence of PW7 which it described as “a person interested in the outcome of the proceedings”. Respectfully, PW7 in her testimony before the Court provided expert evidence of publicly accessible information by way of documents which she downloaded from the Internet showing the health status of the AWS servers in the six (6) regions where AWS hosted its servers. The 1* Respondent does not deny the hosting of its servers, including the e- transmission server, with AWS. The 1* Respondent did not challenge nor controvert the health status Report of the AWS servers in the 6 regions. A cursory look at the said Health Status Report in Exhibits PCJ 3A- F and PCJ 4 will confirm that there were, indeed and in fact, no report of any “glitch” on any of the AWS servers on the day of the election (25/2/2023) contrary to the false claim of the 1% Respondent. It follows that the authorities of AGBALLA v. NNAMANI (supra); OMISORE v. AREGBESOLA (supra) relied on by the 1* Respondent in its address are totally jrrelevant in the determination of the issues raised herein. In the well-known case of Anyaebosi v. R. T. Briscoe (1987) 2 NSS.C.C. 805; (1987) 6 S.C. (Reprint) 11, the Supreme Court lucidly restated the legal position concerning the meaning of a “person interested” as follows: “...the phrase “a person interested” ever moreso, has been definitively put in the case of Holton v. Holton (1946) 2 All ER 534 @535 to mean “g person who has a pecuniary or other material interest in the result of the proceeding - a person whose interest is affected by the result of the proceedings, and therefore, would have a temptation to pervert the truth to serve his personal or private ends. It_does not mean an interest_in the sense of intellectual Tt means an interest in the observation or an interest purely due to sympathy. t”. The Apex Court (per legal sense which imports ‘something to be gained or Jost Keribi-Whyie, JSC) further clarified in that case: “Even if he had such an interest [that is, financial interest in the outeome of the litigation] as remotely arising from his benefit as an employee, it is too remote to be worthy of consideration. Indeed, as was stated by Mr. Okoli, Chief Odukoya had an interest in his employer winning the case. Obviously this is natural and not unusual. It has not been contended that he has an interest to conceal wrongdoings resulting from Exhibit P4, or that Exhibit P4 will promote other interests of Chief Odukoya... Section 90(3) must be given a narrow interpretation to ensure its effectiveness ‘and permit the continuance to ordinary legitimate transactions untrammeled by the exclusionary rules of evidence.” (Underlining for emphasis). In this case, the evidence of PW7 regarding the health status report of AWS Servers in the regions was merely an intellectual observation based on publicly available information/documents. 4.28 The 1“ Respondent in its further attempt to castigate PW7 argued that she failed to prove that she was a staff of AWS as she neither produced her employment letter nor a work identification card; that she only produced an alleged employment verification letter (Exhibit PCJ2) which is without a known author. With due respect, the 1* Respondent seems to be unaware of the prevailing technology with respect to employment documents in advanced corporations such as AWS. Apart from Exh PCJ1 and PCJ2, PW7 annexed a 194.29 Curiously, the 1* Respondent claimed in paragraph 5. copy of her profile/resume to her witness statement on oath, which shows that she is employed by Amazon Web Services Maryland, USA as a Cloud Infrastructure Engineer/Architect from February 2022 to present, there was no evidence before the Court from the Ist Respondent debunking and/or challenging the impressive resume of PW7, which she attached to her witness statement on oath. See, particularly paragraph 2 of the witness statement of PW7 which she adopted as her evidence in chief. In her evidence before the Honourable Court, in response to question under cross examination by the leaned Senior Counsel to the 2” and 3% Respondent, PW7 maintained that her employment verification letter (Exh. PCJ2) has the name of the corporation and Employee Resource center, and that the employee resource center is the department that handles employment verification and that Exhibit PCJ2 is in the nature of employment verification letters given by AWS to its employees. It is important that the PW7’s confirmation of employment apart from indicating that it was issued by the Employee Resource Center, ‘Amazon.com. Inc. also contain a farther statement “if you have any questions, please contact us at 888.892.7180”. My Lords, neither the 1* Respondent nor anyone whatsoever including their sole witness made any effort to contact Amazon Resource center at the above given number, yet her status as an employee of Amazon.com. Inc. is being challenged in the 1 Respondent’s Written Address! 62 of its Written Address that it “kept to its promise by making appropriate arrangements for the activation of IReV which it had deployed in previous stand-alone elections and improved upon same for the ide.” The 1* Respondent sought to excuse its purpose of election which was held nationwi i non-compliance with the electronic transmission/upload of the election result and relied on the evidence of RW1 whom it claimed that his testimony was not impeached. Respectfully, My Noble Lords, the 1* Respondent's imagination is unfounded and unrelated to the evidence on record. The evidence of RW1 in paragraphs 27 and 28 of his witness statement misleadingly and incorrectly claimed that “all polling unit results” at the close of polls were “immediately” or “timeously” uploaded. However, in paragraph 11 (xi), the RWI claimed that “the downtime encountered on the application lasted 4 hours 50 minutes until it was resolved and the first Presidential election result was successfully uploaded at 8.55pm on the 25 February 2023.” Till date the uploading is yet to be completed! It is a matter of painful regret that the RW1 made the claim that any blurred result downloaded from the IREV will not affect the authenticity of the physical INEC result and will not be relevant to result collation. May we draw attention to the following exhibits: Exhs. PCE] ~ PCE4 (four boxes of blurred documents) uploaded on the IReV by the 1* Respondent and falsely represented as Form EC8A, which were tendered by PW4. Exhs. PBP1- PBP21, PBQI-PBQ20, PBQ21, PBR1-PBRI16, PBS1- PBS19, PBT1-PBT25, PBV1-PBV25, PBW1-PBW17, PBX1-PBX21, PBY1-PBY9, PBZ1-PBZ29, PCAI-PCA24, PCN34-PCNSI, are blurred copies of documents certified by the I* Respondent as purported Forms EC8A, EC8B, EC40G and EC60E which were given to the Petitioners as certified copies of the original document in possession of the 1* Respondent under Sections 102, 104 and 105 of the Evidence Act 2011. 4.30 Flowing from the RWI evidence aforesaid, the 1“ Respondent’s misconceived claim and concession will mean that the certified true copies of the blurred, blank results and images of persons are different from the alleged originals which they purport to be copies! 20jplank and blurred documents must be same as the originals they purport to be copies or uplicates of contrary to what RWI propagated in his evidence in chief and being relied upon in the I* Respondent's address. ‘The copies or duplicates cannot be inexact copies of the originals. Putting it laconically, to accept what the RWI claims, is like believing that you can harvest apples from palm trees or apples from pawpaw trees. We submit that plank result sheet can only give birth to blank result sheet and blurred result sheet can only give birth to blurred result sheet. The BVAS which is a front end server has some features ‘of a computer. In computer science, the expression “garbage in, garbage out” as a concept means that a flawed or nonsense input data produces nonsense oF flawed output. Rubbish in, rubbish out is an alternate wording. The above claim by the I* Respondent of having kept its promises and of having made appropriate preparation for the election is totally unfounded. The Ist Respondent's excuse based on alleged “technological glitch” is incorrect, The only reason invented by the 1* Respondent for its manifest non-compliance with the above mandatory prescription for the upload/electronic transmission of the result of the election from the polling unit to the IReV, is alleged occurrence of “technological glitches” on the day of the election. 431 According to RWI (Dr. Lawrence Bayode, Deputy Director ICT INEC), in his evidence before the Court “the use of technology is as prescribed by the 1 Respondent pursuant to the Electoral Act 2022, and Regulations and Guidelines for the Conduct of General Elections 2022; See paragraph 10 of the witness statement on oath of the RWI which he adopted as his evidence in Chief before the Court. However, according to RWI, “Immediately after the election on the 25% of February 2023, polling unit results were uploaded and received by the e-transmission system whilst using the BVAS there was a temporary failure of communication between the e-transmission system and the IReV portal for the Presidential election. In this regard, the e-transmission system returned an HTTP 500 error which is an application error such that the transmitted results though received on the e-transmission application hosted on the AWS, the e-transmission could ot organize and push the results instantly to the Presidential ‘module on the IReV portal hecentse it could not map the results uploaded for the Presidential election to any State. The AWS CloudTrail logs contain and shows patches deployed to fix the error/technical elitches on the election day.” (See paragraph 29(viii) of the witness statement of RW1). Contrary to the above evidence of alleged temporary failure of communication between the e-transmission system and the IReV Portal, PW7, as we have shown above, provided documentary evidence of the Health Status of the Amazon Web Services (AWS) Servers, showing that from the health status ‘of the Servers, there was no report of any technological glitch on the day of the election. 4.32 Exhibit X1 (INEC_ E-Transmission Vulnerability Report dated 22™ February 2023, received by INEC only 3 days to the conduct of the election) show that five (5) different vulnerabilities with one named “Unrestricted File Uploaded” registered as high as 81% risk level. The net result of this high vulnerability/high risk of the e-transmission web portal as per Exhibit X1 was that the server itself allowed for unrestricted upload of malicious files/documents purporting to be Forms EC8A as in the case of blurred/bland documents and irrelevant images uploaded on the IReV. It is submitted that the above state of affairs confirm that INEC was not prepared and ready to conduct the promised 2fredible, authentic and transparent election or that it deliberately or mischievously llowed @ compromised IT Infrastructure to be deployed for the conduct of the presidential election, The 1* Respondent’s feeble attempt to rely on Exhibit RA6 as the evidence of the AWS Cloud trail logs is debunked by the admission of RWI himself to the effect that a cloud trail log will contain, among other things, the region, source IP address, User Agent, and other features, None of these features is contained in Exhibit RA. The evidence of PW7, PWS and PW9 confirm that if the 1* Respondent had properly tested its IT Infrastructure deployed for the conduct of the election, in compliance with the applicable Standard and Guidelines for Government Websites, published pursuant to the National Information Technological Development Agency (NITDA) Act, the high vulnerability identified at page 16 para. 7.1 to 7.14 in Exhibit x1 (INEC e-transmission Web Portal Vulnerability Assessment and Penetration Test Report dated 22" February 2023), Would have been resolved before the deployment of the software for the conduct of the Presidential election. The recommended remediation in paragraph 7.15 of the Report (Exhibit X1), was not shown to have been conducted. It is submitted that other test report was produced before the Honourable Court showing that the recommended remediation has been carried out. Respectfully, my lords, the presumption under Section 167 (d) of the Evidence Act will rightly be invoked by the Honourable Court against the 1** Respondent. 4.33 The unchallenged expert evidence of the Petitioners witnesses, including the documentary evidence before the Court, support the Petitioners case, and sufficiently established that, the non-compliance by the 1* Respondent in the circumstances of the instant Petition were not only substantial, but grievously affected the outcome of the Presidential election. A significant highlight of the expert Data Analysis (Data Report), produced by PW4, is that upon a proper and accurate computation of the result of the election in Rivers and Benue State, using the Forms EC8As uploaded on the IReV, and the certified copies of the Forms EC8As given by the 1* Respondent to the Petitioners, is that the Petitioners won the Presidential election held in Rivers and Benue States. By this unchallenged development, the number of States wherein the Petitioners won the Presidential election will now be 13 States and the FCT, whilst the 2" to 4" Respondents will thereby, have their number of States allegedly announced for them by the 1 Respondent reduced by 2 (two) States. Your Lordships are respectfully urged, to uphold the above submissions and determine that, the non-compliance by the 1* Respondent in the conduct of the Presidential election held on the 25" day of February 2023, substantially affected the result of the Presidential election. Your Lordship may rightly, in the interest of justice, declare the purported return of the 2" and 3“ Respondents as the winners of the Presidential election invalid and accordingly nullify the Presidential election held on the 25" day of February 2023. The I** Respondent also argued that the Report and the evidence of PW8 was shown under cross-examination to have been concluded and made after the institution of the Petition. The evidence of PW8 before the Honourable Court was positive that he started his work on March 10, 2023 and submitted a Preliminary Report on March 17, 2023 which dates were before the institution of this Petition. 4.34 The 1% Respondent further misconceived the case of the Petitioners by arguing that “the incidents of non-compliance pleaded by the Petitioners are the same as corrupt practices 22eaning that the Petitioners themselves concede i iminal nature of those Fesdots pleaded lying on PDP v. INEC G12) LPELR ~ 9424 (CA) 18-195 HARUNA v. MODIBBO (2004) 16 NWLR (Pt. 900) 487 at 542; OBAFEMI v. PDP (2012) LPELR ~ 8034 (CA); AJADI v, AJIBOLA (2004) 16 NWLR (Pt. 898) 91. Respectfully, these authorities are irrelevant and inapplicable to the particular casé of non- compliance made by the Petitioners in the instant Petition. In paragraph 5.45 — 5.46 of the I* Respondent’s Address, it was argued that the forensic and statistics) repo% produced/tendered by PW4 fell short of the requirements of the laws and that Pw admitted he was not conversant with the entries in either a genuine or manipulated result in the election; that all he utilized in his analysis were the secondary copies of the results uploaded in the IReV Portal. This is not true. In the Report entitled “Appendix E: IREV SCORES INVESTIGATION, PW4 clearly indicated that the analysis of the 18,088 polling units was based on LP Agent EC8A copies and CTC of EC8As supplied by INEC. ‘The 1* Respondent attempted to discredit the evidence of PW4 in paragraph 5.49 of its ‘Address by alluding to the evidence given with respect to polling unit 002 of Ward 7 Degema, Rivers State which forms part of Exhibit PCD2 to show that PW4’s analysis/report on over-voting was incorrect. Respectfully, the 1" Respondent’s attempt to mislead the Court stems from its refusal to relate the Report ‘of PW4 on over-voting as per ‘Appendix G in his said Report with the unchallenged evidence of BVAS accreditation for the polling unit in question. In Appendix G aforesaid, the analysis/report for the said polling unit 002 of Ward 7 Degema shows “O” for BVAS accreditation for the polling unit, meaning that by 1* Respondent’s own showing in the BVAS Report for the polling there was no accreditation; and therefore, there could not have been any legitimate voting in the polling unit. Any purported result recorded on the Form EC8A for that polling unit is patent evidence of over-voting In OYETOLA v. INEC (Supra) which is quoted in paragraph 5.48 of the I Respondent's address, the Supreme Court underscored that “the evidence required to prove that there was over-voting are the record of accredited voters in the BVAS and the polling unit report in the Form EC8A.” 4.35 Ina futile attempt to justify the alleged excuse of technological glitches, RW1 tendered Exh. RA6, which he alleged is the AWS CloudTrail Logs showing the touted technological glitches and the patches deployed to repair same. RW1 admitted under cross examination that, a CloudTrail Log will contain the following features namely: “Event time, Event Source, Event name, AWS Region, Source IP Address, 1.A.M (Identity ‘Access Management), User Address.” In her unchallenged evidence before the Court, PW? also testified that there is a CloudTrail for every API (Application Programming, Interface) action within an AWS account. It is submitted that, a cursory examination of Exh RA6 will show that, it does not meet the requirements of a CloudTrail Log. The above itemized features of a CloudTrail Log as admitted by RW1, are non-existent in Exh RAO. Furthermore, assuming without conceding that there was any technological glitch resulting in a temporary loss ‘of communication between the e-Transmission Portal and the TReV Portal on the day of the election, the Respondents case is that “the said technological glitch was repaired following which the result of the first Presidential Section was successfully uploaded on IReV on the 25 of February 2023 (the day of the election)” See paragraph 90 (xi) of 1* Respondents Reply to the Petition, and paragraph 7 of the witness statement of RWI adopted as his evidence in chief. 23evidence it aim before the Honourable Court, RWI maintained that “the alleged technical slit rel witha, affect the result of the election. Upon resolution of http 500 a oie Tey a were delayed in the e-transmission were eventually organized and mi a ‘ortal, the results are available as generated in their original from the poll ing unit using the BVAS. The results of the election as uploaded on the IReV are readable and reflect the lawful scores of all the candidates at the election”. See, paragraphs 29 (x), (xi) and 30 of the witness statement of RWI. It is intriguing that, contrary to the above evidence of RWI, the purported result of the election uploaded/transmitted to the IReV, certified copies of which were issued and given by the 1 Respondent to the Petitioner are made up of plurred/unreadable copies and images, as well inaccessible/blank documents. Even RW] himself, when shown certified copies of these blurred/unreadable documents, admitted/conceded that he was unable to decipher the votes recorded for the 4" Respondent on them, as in his own words, “the copies are blurred.” May we respectfully refer the Honourable Court to the blurred copies which were certified by the I* Respondent and admitted in evidence as Exhibit PCA14, PBS19, PBS21, PBZ9, PCA 25, PCA26, PCA28 AND PCA29. These documents though certified by the I Respondent were either manifestly blurred or blank documents, and were purported to be the result of the election in respective polling unit. We also refer to Exhs PCEI — PCE4 (four boxes of blurred documents) uploaded on the IReV by the 1* Respondent and falsely represented as Form BC8A, were tendered by PW4. Exhs PBP1- PBP21, PBQI-PBQ20, PBQ21, PBRI-PBRI6, PBS1-PBS19, PBTI-PBT25, PBV1- PBV25, PBW1-PBWI7, PBXI-PBX2I, PBYI-PBY9, PBZ1-PBZ29, PCA1-PCA24, PCN34-PCNSI, are blurred copies of documents certified by the 1* Respondent as purported Forms EC8A, EC8B, EC40G and EC60E, which were given to the Petitioners bs certified copies of the original document in possession of the 1% Respondent. 437 Though the blurred copies shown to RWI are Exh. PCA23, your Lordships are respectfully urged to refer to the blurred copies of the purported result of the election in 18,088 polling units admitted as Exh, PCE 1-4 and invoke the Court’s duty to draw inference from proven facts. See DAVID v. INEC (2020) 4 NWLR (Pt. 1713) 188 at 202 to 203, this Honourable Court, per Tsamani JCA, reiterated the established principle that: “it is equally true, that in the resolution of issues before it, the Court is entitled to draw inferences from proven facts in order to reach a decision on an issue. In other words, a Court or Judge can draw inferences from oral and documentary evidence tendered before it.” In the instant Petition, the Respondents neither challenged nor joined issues with the Petitioners on the fact that the result of the election uploaded/transmitted on the IReV in 18,088 polling units were blurred, and this was established by the oral evidence of RWI, confirming the character of Exh PCA 23. In his unchallenged expert evidence before the Honourable Court, PW4 (Prof. Eric Uwadiegwu Ofoedu), produced as Appendix E (IReV scores investigation), a spread sheet of the 18,088 polling units with blurred Forms EC8A, and also gave evidence that “from the IReV Portal, 18,088 polling unit results were blurred”, and also, that “from IReV Portal scores, on Form EC8As of 39, 546 polling units were inaccessible/contain uploads not connected to the election (Which are referred to as invalid, blurred or not uploaded at all)” It is respectfully conceded, that though the Court is not bound to accept an expert report, the legal position is also that “they would appear not to have any choice than to do so 24