Below is the transcript of the written address filed by the All Progressives Congress (APC) asking the Presidential Election Petition Court (PEPC) to dismiss the Motion on Notice filed on the 2nd of June, 2023, by Mr. Peter Gregory Obi and his Labour Party (LP).

Peter Obi/Labour Party had filed a Motion seeking for an order granting them leave to move their earlier motion dated 20/05/2023.

In its application, APC claimed that the motion was belatedly filed outside the pre-hearing session and opposed the petitioners’/applicants’ Motion.

See the document, dated June 7, 2023, signed by Prince Lateef O. Fagbemi, SAN, Chief Dr. Charles Uwensuyi Edosomwan, SAN, Chief Adeniyi Akintola, SAN, Chief Afolabi Fashanu, SAN, Olabisi Soyebo, SAN, and Chukwuma Ekomaru, SAN, below:

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In the Court of Appeal holden at Abuja

In the matter of the election to the Office of the President of the Federal Republic of Nigeria field on the 25th February, 2023

Petition no: PEPC/A/03/2023 

Between 

1) Mr. Peter Gregory Obi
2) Labour Party
Petitioners

And

1) Independent National Electoral Commission (INEC)
2) Senator Bola Ahmed Tinubu
3) Senator Shettima Kashim
4) All Progressives Congress (APC)
Respondents  

4th respondent’s written address in opposition to the petitioners’/applicants’ Motion on Notice filed on the 2nd of June, 2023  

1.0 Introduction  

1.1 The Petitioners/Applicants had brought this application seeking for (1) an order granting leave to the petitioner/Applicants to move their earlier motion dated 20/05/2023, but belatedly filed on 22/05/2023 outside the pre-hearing session and (ii) a further order (upon the grant of the first prayer) setting down the said motion on notice dated 20/5/2023 filed on 22/5/2023.  

1.2 In vehement opposition to the said application, the 4°’ Respondent has filed a 6 paragraph counter affidavit (see below) deposed to by Emmanuel Okon, Litigation Secretary in the office of the lead counsel to the 4th Respondent herein.  

1.3 We shall place reliance on all the paragraphs of the counter affidavit, the provisions of the Electoral Act, and the record of this Honourable Court in opposing this application.  

2.0 Relevant fact  

2.1 The necessary facts for the determination of this application are clearly made out in the counter affidavit and we, humbly commend same to your Lordships.  

3.0 Issues for determination  

3.1 In our humble view. the sole issue apt tbr the determination of this application is:  

“Whether in the enure circumstance of this petition, the Petitioners/Applicants are entitled to the grant of the reliefs sought in this application?”.  

3.0 Argument of issue  

3.1 It is submitted that the instant application is brought malalide with the overriding consequence of causing unnecessary delay in the expeditious hearing and determination of the petition and as such, same is liable to be dismissed.  

3.2 The starting point of our submission on this issue, is that an application of this nature is seeking the exercise of the honourable court’s discretionary powers which must be exercised judicially and judiciously. As such an Applicant, as in the instant case, must place before the court sufficient materials to engender exercise of such discretion in his favour. Scc: FED. POLY, IDAH vs. ONOJA (2012) 12 NWLR (PT. 1313) 72; DANGOTE vs. C.S.C. (PLATEAU STATE (2001) 9 NWLR (PT. 717) 132.  

3.3 In the instant application, the Petitioners/Applicants merely placed misleading and unsubstantiated facts before the court, and preposterous as it is, expect the court to act on such.  

3.4 It is common ground that election Petition is sui generis and time bound. hence it must be expeditiously heard and determined. Curiously, however, against the tenet and essence of Election Petitions, the Petitioners/Applicants are in the habit of belatedly filing processes/Applications (such as this instant one) to forestall the expeditious hearing and determination of the petition.  

3.5 What is more, the Petitioners/Applicants are guilty of inordinate delay in bringing this application having been aware of the closure of the prehearing session since 22″ May, 2023, without any justifiable reason, knowing fully well that this is an election petition matter.  

3.6 It is this type of situation that attracted the attention of the Supreme Court in the case of Aiwa! vs. INEC (2013) 4 NWLR (PT. 1345) PAGE 595 (0) 630 — 631, where the court held thus:  

“In this appeal, Appellants adopted the stance of blaming the court rather t looking inwards. As rightly observed hr the Appellants in their brief, the Court of Appeal had a tight schedule during that period. The Appellants admitted also that notice of the date of hearing of the appeal was communicated to him at 5:30pm on the 0 of December, 2011 by a staff of the Registry of the Court of Appeal. Having filed his appeal leaving only four dap for the court to hear and determine the matter, he ought to have done everything within his power to collect a date for hearing and not wait until same had to be communicated to  him on the telephone by a staff of the Registry of the Court of Appeal. The learned counsel had himself to blame for exhausting all the period required for filing the appeal. He did not have to exhaust the entire 21 days prescribed by law in filing his notice of appeal The 7th December 2011 filed for his anneal might have been done in error-he could rectified it through his vigilance in checking uo the elate of hearing at the registry from time to time.  Equity aids the vigilant and not the indolent.” (Underlining ours for emphasis)  

3.7 We submit that the entire gamut of the affidavit in Support of this application is misleading and unreliable. The Petitioners/Applicants had misrepresented facts to this court. Rather than tell the Honourable Court the truth and the correct situation of things, Petitioners/Applicants who were tardy, have now placed the blame for their action/inaction on the Honourable Court.  

3.8 Submit further that the instant application of the Petitioners/Applicants are seeking the equitable discretion of the court to grant the reliefs. Therefore, the grant of this application must conform to the well-known equitable principles. Two of such principles, which we consider apropos are that; he who comes to equity must come with clean hands and equity aids the vigilant not the indolent. See: PDP v. SHERRIE (2017) 15 NWLR (PT. 1588) 219 (it, 283, PARA. C.  

3.9 We rely also on ADEWALE CONSTRUCTION CO. LTD. vs. 1.B.W.A. (1991) 7 NWLR (PT. 204) 498 at 506 where the court held thus:

“We shall pause for a moment and re r • r I ourselves of the equitable maxim that he who comes to equity must come with clean hands”…. the appellants tried to elicit sympathy of the court by deliberately misrepresenting the facts. Where the suppliant for equity misrepresents the facts with respect to the equity he seeks from the court, the court would decline to exercise its discretion in that party’s favour.”  

See also: OJUKWU vs. GOVERNOR OF LAGOS STATE (1986) 3 NWLR (PT. 26) 39 @ 44. On this score alone, this application ought to fail.  

3.10 Submit that in the circumstance, the Petitioners are not entitled to the grant of the itthanngahu the  application gedl and with soiled hands. Scc: PDP Y. SHERRIF (SUPRA). The petitioners’ precarious position is worsened by their non-disclosure of the crucial fact that their earlier application filed on 22″ May 2023 is grossly incompetent and cannot be salvaped by the instant one.  

3.11 We submit that the entire gamut of the Affidavit art of this application is thus misleading and unreliable having been predicated on concealment of material facts. The petitioners had misrepresented salient facts to this court. Rather than tell the court the truth petitioners concealed material fact regarding this crucial facts eloquently contained in paragraph 5 of the Respondent’s counter affidavit.   

3.12 It must not be lost on the petitioners, that an election petition proceeding is sui generis with its own distinct rules, made in respect of the time sensitive nature of the proceedings. By Paragraph 47(1) of the First Schedule to the Electoral Act, 2022, “No motion shall be moved and all motions shall come up at the pre-hearing session except in extreme circumstances with leave of the Tribunal or Court”.  

3.13 It is trite that where a law prescribes a mode of doing a particular thing, that mode must be followed. Sec: AMAECHI vs. INEC (2008) 5 NWLR (Pt. 1080) 227.  

3.14 In respect of the instant application, it is not in doubt that Pre-hearing Session has long been concluded with timelines already prescribed in the Pre•hearing Report for trial. In fact, sequel to the issuance of the Pre-hearing Report, trial has commenced and the Petitioners have called a witness and tendered avalanche of documents in purporting to prove their case.  

3.15 Since the filing of the Petitioners’ Motion on the 22s of May, 2023, the instant Petition has also come up before Your Lordships for hearing on more than three consecutive occasions and no mention of the application was made by the Petitioners which is clearly indicative of lack of any serious intention to pursue same.  

3.16 Indeed apart from the Petitioners deliberate delay and lackadaisical approach, no extreme circumstances has yet been shows in the affidavit in support to warrant granting this application and setting down the Petitioners’ Motion filed on the 22nd of May, 2023, for hearing outside the Pre-hearing session. The only fact purportedly offered as in extreme circumstance is the deposition to the effect that application “is fundamental to the hearing and determination of the radical issues in this Petition“. This is nothing but mere ipse dixit of the petitioners which is most unhelpful to their case and does not meet the requirement of the law.  

3.17 Now, having brought the application belatedly, it is clear that the predicate/parent application for leave to issue interrogatories is an afterthought, not worthy of your Lordships’ discretion. This explains the reason for the failure of petitioners to indicate the said application for interrogatories in their answer to the questions in the Pre-hearing Information Sheet and at the close of pleadings? Petitioners who waited till after the Pre-hearing Session to seek leave for issuance of interrogatories cannot truly be said to be diligent in the entire circumstance of this case. The affidavit in support of this application is equally silent on why petitioners failed to timeously bring the application for interrogatories to the attention of the Honourable Court. On this solitary ground, this application must fail.  

3.18 It must be borne in mind as earlier submitted that equity only aids the vigilant and never a willing tool to be used by the indolent. Consequently, having not shown themselves to be alive and vigilant to the alleged fundamental aspect of their case, Your Lordships are respectfully urged not to exercise any equitable discretion in their favour.  

3.19 What is more, a calm review of the Petitioners’ Motion on Notice filed on the 22nd of May, 2023, shows overwhelmingly that the purported interrogatories, are in fact not in furtherance of the Petitioners’ case but rather disguised cross-examination before the time slated for cross-examination as the questions sought to be asked in the interrogatories are directed against the 1st Respondent’s defence and not to prove any aspect of the Petitioners’ case. That being the situation, your Lordships are urged not to accede to the request of the petitioners, which is overtly overreaching and a ploy to shift the burden of proof legally place on them by law!  

3.20 Finally, in view of all the above submissions, we urge the court to dismiss the instant Petitioners’ Motion on Notice seeking to set down the Petitioners’ Motion on Notice filed on the 22’d of May, 2023 for hearing outside the Pre-hearing Session.  

3.21 Indeed the leave sought for the issuance of interrogations in the Predicate application is itself not grantable at this time (upon which the instant application is grafted) how much more this subsidiary application seeking to breathe life into the comatose predicate application of 22nd May, 2023!   

3.22 It is conceded that Paragraph 54 of the First Schedule to the Electoral Act, 2022 provides for recourse to be had to the Federal High Court (Civil Procedure) Rules where no provision has been made on an issue. Admittedly also, issuance and service of interrogatories is not provided for in the First Schedule to the Electoral Act, 2022, hence recourse in the circumstance is to be had to the provision of Order 43 Rule I(2) of the Federal High Court (Civil Procedure) Rules, 2019 which provides to the effect that “The interrogatory when delivered, shall have a note at the end of it, stating which of the interrogatory each person is required to answer and shall be delivered within  7 darts of close of pleadings“. (Underlining for emphasis)  

3.23 As between the petitioners and the Respondent, pleadings closed on 26′ of April, 2023. See paragraph 5(1Xi) and (ii) of 4′ Respondent’s counter affidavit.  

3.24 Unfortunately. the predicate application, was belatedly brought over 26 days after close of pleadings, without any justifiable reason disclosed by petitioners to justify the late filing of same, thereby rendering same incompetent, ab initio, and this instant application cannot resuscitate the application brought in dead on arrival, without a prayer for extension of time on same. if at all it may or can be extended. The question then is: of what utilitarian value is the instant application as presently constituted? We answer: None. Even if same is granted, the predicate application being incompetent, in the absence of a prayer for extension of time petitioners labour in vain, as this application turn out to be merely academic and of no utilitarian value, since you cannot put something on nothing. Scc: ODEDO vs. OGUEBEGO (2015)13 NWLR (PT. 1476) 229 @ 251 and ANGADI vs. PDP (2018) 15 NW LR (1641) 1 @ 24. 

3.25 We submit funher that the Applicant has not explained the reason for the inordinate delay in bringing the application, and is therefore not entitled to the discretionary favour of this honourable court.  

3.26 Assuming without conceding that time may be extended to accommodate the predicate application, we still submit that in considering an application of this nature, the factors to be considered by your Lordships as settled in a plethora ofjudicial authorities and especially in the locus cla case of WILLIAMS VS. HOPE RISING VOLUNTARY SOCIETY (1982) I —2 SC 145, (2001) 34 %SRN 171 es. 177, is still not met by the instant Applicant,. It v. as specifically held that the rules of court are meant to be obeyed and that where no excuse is offered for not following the rules of court, no indulgence should be granted.  

3.27 Viewed from any perspective, Applicants are in total breach of the factors and conditions for the grant of the instant application and we urge the court to so hold.  

3.28 In any event, time is of the essence in election matters, same being sui generis and slackness that is ordinarily tolerated in general, civil proceedings are frowned at and not permitted in election petition proceedings. Sec: BUHARI vs. YUSUF (2003) 14 NWLR (PT. 841) 446 @ 498 and OKEREKE vs. YAR’ADUA (2008) 12 NWLR (PT. 1100) 95. 

3.29 Based on the aforesaid, it is obvious, and we submit, with all due respect that the instant application is most incongruous and against the whole essence of the urgency inherent in Election Petitions.  

3.30 We submit that applicant is undeserving of the tribunal’s sympathetic discretion in all the circumstances of this application as same is brought in bad faith, simply to waste the precious time of your noble Lords.  

4.0 CONCLUSION

4.1 In the light of the foregoing, we urge this Honourable Court to resolve the sole issue for determination in favour of the Respondents and against the petitioners.  

4.2 Ipso facto the court is urged to hold that the instant application is indolent and ungrantable since the earlier or predicate application it is seeking to breathe life into is ab initio incompetent and irredeemably bad having been tiled out of time.  

4.3 We urge your Lordships to dismiss same with substantial cost accordingly.  

Dated this 7th day of June, 2023  

Prince Lateef O. Fagbemi, SAN 

Chief Dr. Charles Uwensuyi Edosomwan, SAN 

Chief Adeniyi Akintola, SAN 

Chief Afolabi Fashanu, SAN 

Olabisi Soyebo, SAN  

Chukwuma Ekomaru, SAN 

~~~

See the counter affidavit below:

In the Court of Appleal holden at Abuja  

In the matter of the election to the Office of the President of the Federal Republic of Nigeria field on the 25th February, 2023  

petition no: PEPC/A/03/2023  

Between  

1) Mr. Peter Gregory Obi
2) Labour Party
Petitioners  

And  

1) Independent National Electoral Commission (INEC)
2) Senator Bola Ahmed Tinubu
3) Senator Shettima Kashim
4) All Progressives Congress (APC)
Respondents  

4th respondent’s counter affidavit in opposition to the petitioners’ Motion on Notice filed on the 2nd of June, 2023  

I, Emmanuel Okon, Male, Adult, Christian, Litigation Secretary and Nigerian citizen of 4th Floor, Rivers House, Ralph Shodeinde Street, Central Area, Abuja do hereby make Oath and state as follows: 1) 1 am a Litigation Secretary in the law firm of LATEEF 0. FAGBEMI & CO whereat Prince Lateef O. Fagbemi, SAN, is the principal and lead counsel to the 4th Respondent (hereinafter referred to as the Respondent) in this matter.  

2) By virtue of my position, l am conversant with the facts of this petition. 3) 1 have the information, consent and authority of the Respondent and that of my employer Lateef 0. Fagbemi, SAN to depose to this counter affidavit. 4) Except otherwise stated, the facts herein deposed are within my personal knowledge, information and belief 5. I was informed by Lateef O. Fagbemi, SAN, FCIArb (UK), lead counsel to the 4th Respondent in our office at the afore-stated address on the 5° of June, 2023 at about 7pnt and I verily believe him as follows:  

(a.) That he has seen and read the Petitioners’ referenced application tiled on the 2″ of June. 2023 for leave to argue and set down the Petitioners’ Motion on Notice filed on the 22″ of May, 2023 outside the Pre-hearing Session;

(b.) That the facts in support of the said application are misleading and untrue;  

(c.) That the Respondents, especially the l” Respondent (against whom the application is targeted) is opposed to the hearing of the Petitioners’ Motion tiled on the 22″ of May. 2023 outside Pre-hearing Session, and has tiled a Counter Affidavit in opposition to same: (d.) That the I” Respondent had by its Counter Affidavit and Written Address filed in response to the Petitioners’ Motion on Notice dated 22″ of May, 2023 opposed same for being grossly incompetent, and that no extreme circumstance was disclosed in the affidavit to support the hearing of same outside the Ike-hearing Session:  

(e.) That the instant application is an abuse of court process and an attempt to pre-empt the V Respondent’s opposition to the Petitioners’ Motion on Notice filed on the 22″d of May, 2023;  

(f.) The Petitioners’ mother application filed on the 22″ of May. 2023 for leave to issue interrogatories for service on the Respondent. and upon which this new application is predicated, is only aimed at wasting the precious time of this Honourable Court; in that:  

i) As between Petitioners and the l” Respondent. pleadings closed on the 26th of April, 2023 alter filing and service of the Petitioners’ Reply to the 1″ Respondent’s Reply to the Petition;

ii) The petitioners’ said application was filed on the 22nd of May, 2023, a period of about 26 days after the close of pleadings;

iii) Following the filing of the Petitioners’ Reply on the 26th of April, 2023, Pre-hearing proceedings commenced on the Monday, Sth May, 2023 and was concluded on the 22″d of May, 2023 with the Pre-hearing Report issued on the 23’d of May, 2023;  

iv) Petitioners took part in the Pre-hearing Session and did not indicate both in their Answers to the Questions in the Ike-hearing Information Sheet, or even orally at the Pre-hearing Session any intent to bring any application for interrogatories run did they draw the intention of the court to the tiling of the application under reference;

v) the facts in relation to the questions in the purported Interrogatories are facts upon which the Ist Respondent is expected to lead evidence in support of its defence of the Petition; and

vi) the Respondents (especially the 1st Respondent) will be prejudiced by the grant of this application and be forced to a trial before the main trial on its defence to the Petition at trial.

(g.) That as at the 22nd of May, 2023 when the Petitioners’ Motion on Notice for leave to issue interrogatories was tiled, a total of about 9 (nine) applications or more had been heard by the Honourable Court and ruling on same reserved till judgment;  

(h.) That the Petitioners only filed and served their said Motion tiled on the 22′ of May, 2023 on the Respondents after the proceedings of the Honourable Court on the 22″‘ of May, 2023 and same was not ripe for hearing on the 23″ of May, 2023 when the Pre-hearing Session Report was issued;  

(i.) That on the 23″ of May, 2023 when the Pre-hearing Report was issued by the Honourable Court, the Petitioners did not bring the pendency of the Motion on Notice filed on the 22″‘ of May. 2023 to the attention of the Honourable Court;  

(j.) That this Petition has come up before the Honourable Court more than three times after the proceedings of the 23rd of May, 2023 and the said Motion on Notice filed on the 22nd of May, 2023 was not brought to the attention of the Honourable Court on the said dates;  

(k.) Contrary to the affidavit in support of this application, Motion on Notice filed on the 22nd of May, 2023 is not fumdamental for the hearing and determination of the radical issues in this Petition;  

l.) The Respondents will be prejudiced by the grant of this application; and  

(m.) It is in the interest of justice that this application be dismissed.  

I make this affidavit conscientiously believing the contents to he true and correct and in accordance with the Oaths Act.

Deponent  

Sworn at the Presidential Election Petition Court Registry, Abuja, this  7th day of  June, 1023  

Before me:

Commissioner for Oats/Secretary 

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