UDOM GABRIEL EMMANUEL v. UMANA OKON UMANA & ORS
In The Supreme Court of Nigeria
On Monday, the 15th day of February, 2016
SC.3/2016(REASONS)
RATIO
WHETHER A COURT IS ALLOWED TO EMBARK ON INVESTIGATION INTO DOCUMENTS THAT WERE NOT PROVED BY THE PARTIES
…the Petitioners could not have proved over voting, as alleged, without mapping a nexus between the voters’ registers with the Polling Units through witnesses who could have been subjected to the fusillade of probing questions under cross examination. As it were, they [the Petitioners] fell into the common forensic error of dumping voters’ registers on the trial Tribunal. The grievous and unpardonable error of the Lower Court in this regard was that it metamorphosed into an inquisitorial forum, and like a Knight errant combing for imaginary skirmishes, it embarked on cloistered justice in its unwarranted investigation into over-voting which the Petitioners could not prove. This Court has, always, looked with askance at this approach which is, completely, antithetical to our adversarial jurisprudence, Ivienagbor v. Bazuaye [1999] 9 NWLR (Pt.620) 552; (1999) 6 SCNJ 235, 243, Owe v. Oshinbanjo (1965) I All NLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) I All NLR 324 at 333; Alhaji Onibudo & Ors v Alhajl Akibu & Ors [1982] 7 SC 60, 62; Nwaga v. Registered Trustees Recreation Club (2004) FWLR (Pt.190) 1360, 1380-1381; Jalingo v Nyame (1992) 3 NWLR (Pt.231) 538; Ugochukwu v. Co-operative Bank [1996] 7 SCNJ 22. Others include: WAB v. Savanah Ventures [2002] FWLR (Pt.112) 53,72; Obasi Brothers Ltd v. MBA Securities Ltd [2005] 2 SC (pt 1) 51, 68; ANPP v INEC [2010] 13 NWLR (Pt.1212) 549; Ucha v Elechi [2012] 13 NWLR (pt 1317) 330, 360; Omisore v Aregbesola [2015] 15 NWLR (Pt.1482) 202, 323 – 324. PER CHIMA CENTUS NWEZE, J.S.C.
CONSEQUENCE OF FAILING TO CALL THE MAKER OF A DOCUMENT TENDERED AS EXHIBIT
The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examiantion for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at 322 323 which the Court below refused to apply in place of its own decision in AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (Pt.1253) 458. See also the cases of SA’EED VS. YAKOWA (2013) 7 NWLR (Pt.1352) 124 AT 149 150 and OSIGWELEM VS. INEC (2011) 9 NWLR (Pt.1253) 425 at 451. PER MAHMUD MOHAMMED, J.S.C.
JUSTICES
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
Between
UDOM GABRIEL EMMANUEL Appellant(s)
AND
- UMANA OKON UMANA
2. ALL PROGRESSIVES CONGRESS
3. PEOPLES DEMOCRATIC PARTY
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
5. RESIDENT ELECTORAL COMMTSSIONER, AKWA IBOM STATE
6. NIGERIA POLICE FORCE Respondent(s)
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The facts of this appeal and those of SC.1/2016, just disposed of now, and indeed, of the other appeals (SC. 2/2016; SC.4/2016; SC.6/2016 and SC.7/2016l, were conceived in the womb of and delivered from, the events of the said election of April 11, 2015. As such, it would be wearisome to repeat the same set of facts over and over. Accordingly, with regard to this appeal and the others [SC.2/2016; SC.4/2016; SC.6/2016 and SC.7/2016, it would suffice to adopt the chronological sequence of events, already, set out in SC.1/ 2016.
I may only add here that, while the appellant was dissatisfied with the part of the judgment of the Tribunal that nullified his elections in the eighteen LGAs, copiously, dealt with in SC.1/2016, the first and second respondent, who were, also, aggrieved by the said Tribunals order which upheld the results in thirteen LGAs, appealed to the Lower Court. The Lower Court set aside the said Judgment of the Tribunal with respect to the thirteen LGAs and nullified the results in the entire State. That prompted
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this appeal.
The appellant identified eight issues for the determination of this appeal. They were framed thus:
1. Whether the Lower Court was right when it held that the provisions of the INEC Approved Guidelines and Regulations for the Conduct of 2015 Elections, which require the mandatory use of Electronic Card Reader Machines for accreditation, and Exhibit 322 are not in conflict with the provisions of the Electoral Act, 2010 (as amended)
2. Whether the Lower Court was in error when it failed to apply its earlier decision in APC v Kolawole Agbaje. CA/L/EPT/751A/2015 and held that the decision was not applicable to the instant case
3. Whether in view of the state of pleadings, the Lower Court was not wrong when it held that the appellant, as well as the third-fifth respondents, have admitted the validity of the INEC Approved Guidelines and Regulations for the Conduct of 2015 Elections
4. Whether the Lower Court was not in error when it failed to follow the decision … in Omisore v Aregbesola [2015] 15 NWLR (Pt.1482) 205, but relied on its own decision to hold that it was unnecessary to call the makers of Exhibits 322 and 317 to
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testify in this case
5. Whether cognisant of the facts and evidence led, the Lower Court was not in error when it relied on Exhibit 317 to hold that the first and second respondents had proved irregularity in the accreditation process and the burden had shifted to the appellant and the third fifth respondents
6. Whether the Lower Court was not wrong when it held that the votes cast at the Akwa Ibom State Government election of April 11, 2015 were in excess of voters accredited for that election and the appellant did not secure majority of lawful votes cast
7. Whether the Lower Court was right when it held that there was no collation of results of the Akwa Ibom State Governorship election of April 11th, 2015 and votes were merely allocated
8. Whether on the totality of the facts and evidence led, the Lower Court was right in law to hold that the first and second respondents successfully discharged the burden of proving non-compliance with the provisions of the Electoral Act and the non-compliance affected the results of the entire election
RESOLUTION OF THE ISSUES
In view of the elaborate reasons advanced in SC.1/2006,
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on the error of the Lower Court in placing reliance on the Card Reader Report, Exhibit 317 alone, and the binding nature of this Court’s decision in Omisore v Aregbesola & Ors (supra), I am of the considered view that issues one, two, three and four are now academic. All the same, I adopt my decision on the said Exhibit 317 in SC.1/2016 as part of my reasons for the judgment of the same questions With respect to this appeal.
With regard to Exhibit 322 – INEC press Release on the mandatory implementation of its Guidelines on Card Reader accreditation -, it may only suffice to point out that this Court is yet to depart from its position in Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1, 316 -317 on the status of the Directives of INEC vis-a-vis the provisions of Section 49 (1) and (2) of the Electoral Act. In that case, the provisions of Section 40 (1) and (2) of the Electoral Act, 2002, similarly, worded like the provisions of the extant Act, were construed. The Court took the view that such Guidelines were in conflict with the mandatory provisions of the Act. As, already, noted above, this Court is yet to depart from that position.
In the
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circumstance, therefore, only issues five, six, seven and eight would suffice in the determination of this appeal. Incidentally, issues Five, six and seven are, thematically-linked. Issue five is on the Card Reader, Exhibit 317. Issue six, on whether the votes cast on April 11, 2015 were in excess of voters who were accredited for that election and that the appellant did not score the majority of lawful votes, is Inextricably tied to the probative value of the Card Reader Report. Issues seven and eight are, equally, thematically-linked with the question whether the first and second respondents discharged the burden on them as enunciated in several decisions of this Court.
My Lords, having regard to the reasons I had advanced against the probative value of Exhibit 317 [Card Reader] in SC.1/2016, I take the view that the answers to issues five, six, seven and eight are self-evident. Even the answer to the question posed in issue four [reliance on Exhibit and 317 when is maker was not called to testify and be cross examined] has, equally/been supplied in SC.1/2016. The same thing applies to Exhibit 6, the video clips whose makers were not called. I adopt my
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reasons in the said appeal as my reasons on this issue.
In SC.1/2016, I took the humble view that the said Exhibit 317 should not have been the sole determinant of proper accreditation in the absence of the voters’ register, citing Ucha v INEC (supra) and other cases. I adopt my reasons on the Card Reader here in holding that the Lower Court erred on relying on the said Exhibit in holding as it did even in the face of the challenges of the said Card Reader which DW 24; 25; 26 and 27 identified.
On the seventh issue, I endorse the appellant’s submission that PW 33 failed to prove that there was no collation. I had pointed out that the makers of Exhibit 5, just as Exhibit 6, were not called and so they could not be cross examined. In the absence of their maker, the question would be: should the Court have accorded them any weight at all having regard to Section 34 (1) (b) (i) and (ii) of the Evidence Act, 2011 I am afraid no weight is attachable to such pieces of evidence admitted in such circumstances.
Worse still, under cross examination, PW33 conceded that he was not the person who transferred the video clips, Exhibit 6, to the disc, page
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3559, Vol 4 of the record. How then would the Court have attached weight to it against the background of the mandatory provisions of Section 34 (1) (b) (i) and (ii) of the Evidence Act (supra) Indeed, there would have been no such warrant. According to him, the recording from the video camera was transferred into a computer and burnt into a compact disk. This was done […] by my P. A. by using my personal computer…” [page 3559, Vol 4 of the record]. This is, precisely, why his P. A. should have testified and be ready for cross examination for the purpose of the weight provision of Section 34 (1) (b) (i) and (ii) (supra).
Now, it is unarguable that there is a presumption of regularity in favour of INEC results in the Form EC8As of the respective Polling units. It was, thus, the duty of the petitioners to expose the divergence between the results in these Forms EC8As with the final collated results as shown in Exhibit EEEE1. The Lower Court, therefore, erred in finding for them in the absence of such proof. Just as I did in SC.1/2016, I hold that, from the evidence on record, the petitioners failed to discharge the requisite burden of proving
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non-compliance with the provisions of the Electoral Act, Buhari v. Obasanjo (supra).
Having regard to the position of this Court on the probative value of the Card Reader report, it only means that the Petitioner’s case based on the Card Reader accreditation was dead on arrival. They anchored their complaint on irregular accreditation and over-voting on Exhibit 317 which, according to DW24 -whose testimony the trial Tribunal believed does not parade the accurate record of the total number of voters accredited. [This is distinct from the statutorily ordained procedure of proof through the voters’ register and requisite electoral forms, Shinkafi & Anor v Yari & Ors, unreported decision of January 8, 2016]. They must, therefore sink or swim with it [Exhibit 317].
Since the said Exhibit 317 could not swim ashore onto probative relevance, their case was bound to peter out for want of proof! Indeed, Exhibit EEEE1, which enjoys the presumption of regularjty, clearly showed that, while 1,158,624 voters were accredited, the actual votes cast were 1,122,836. Worse still, the data which eventuated from Exhibit 317 related only to 2,292 Polling Units.
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On the contrary, even the petitioners were ad idem with the appellant that the total number of Polling Units in Akwa Ibom State is 2,988!
Against this background, therefore, the Lower Court’s reliance on the Card Reader report was erroneous, being in conflict with this Court’s decision on the proof of accreditation, Haruna v. Modibbo [2004 16 NWLR (Pt.900) 487) Audu v. INEC (No. 2) [2010] 13 NWLR (Pt.1212) 456, approvingly, cited in the recent case of Shinkafi & Anor v Yari & Ors (unreported decision of January 8, 2016).
Even then, the Petitioners could not have proved over voting, as alleged, without mapping a nexus between the voters’ registers with the Polling Units through witnesses who could have been subjected to the fusillade of probing questions under cross examination. As it were, they [the Petitioners] fell into the common forensic error of dumping voters’ registers on the trial Tribunal. The grievous and unpardonable error of the Lower Court in this regard was that it metamorphosed into an inquisitorial forum, and like a Knight errant combing for imaginary skirmishes, it embarked on cloistered justice in its unwarranted investigation
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into over-voting which the Petitioners could not prove.
This Court has, always, looked with askance at this approach which is, completely, antithetical to our adversarial jurisprudence, Ivienagbor v. Bazuaye [1999] 9 NWLR (Pt.620) 552; (1999) 6 SCNJ 235, 243, Owe v. Oshinbanjo (1965) I All NLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) I All NLR 324 at 333; Alhaji Onibudo & Ors v Alhajl Akibu & Ors [1982] 7 SC 60, 62; Nwaga v. Registered Trustees Recreation Club (2004) FWLR (Pt.190) 1360, 1380-1381; Jalingo v Nyame (1992) 3 NWLR (Pt.231) 538; Ugochukwu v. Co-operative Bank [1996] 7 SCNJ 22.
Others include: WAB v. Savanah Ventures [2002] FWLR (Pt.112) 53,72; Obasi Brothers Ltd v. MBA Securities Ltd [2005] 2 SC (pt 1) 51, 68; ANPP v INEC [2010] 13 NWLR (Pt.1212) 549; Ucha v Elechi [2012] 13 NWLR (pt 1317) 330, 360; Omisore v Aregbesola [2015] 15 NWLR (Pt.1482) 202, 323 – 324.
In all, I adopt my reasons in SC.1/2016 as my reasons in allowing this appeal. Like in the earlier judgment, I vacate the judgment of the Lower Court dated December 18, 2015 which nullified the entire
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Governorship elections held in Akwa Ibom State on April 11, 2015. Accordingly, I affirm INECs declaration of the election and due return of Udom Gabriel Emmanuel as the Governor of Akwa Ibom State sequel to the failure of the Petitioners’ case. Appeal allowed. Parties are to bear their costs.
MAHMUD MOHAMMED, J.S.C.: This is a sister appeal to Appeal No. SC.1/2016 which relates to the decision of the Governorship Election Tribunal for Akwa Ibom State nullifying election in 18 Local Government Areas of Akwa Ibom State in which the present Appellant appealed to the Court of Appeal and subsequently to this Court. The present appeal however, arose from the appeal filed by the 1st and 2nd Respondents to the Court of Appeal asking that Court to set aside part of the decision of the Election Tribunal validating or upholding the Governorship Election conducted in 13 out of the 31 Local Government Areas of Akwa Ibom State. The Appellant was therefore a Respondent in that appeal at the Court of Appeal. In the judgment written by Oludotun A. Adefope Okojie JCA, also delivered on the same day 18th December, 2015, the 1st and 2nd
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Respondents appeal was allowed and the election in the 13 Local Government Areas in Akwa Ibom State was also nullified in addition to the nullification of the same election in 18 Local Government Areas of the State. The judgment of the Court of Appeal resulted in the nullification of election in all the 31 Local Government Areas and ordering rerun election in the entire Akwa Ibom State within 90 days. The present appeal No.SC.3/2016 is against that judgment of the Court of Appeal nullifying the Government election of 11th April, 2015, in the entire Akwa Ibom State.
The Appellant’s Notice of Appeal contains 17 grounds of Appeal from which 8 issues for the determination of the appeal were distilled in the Appellant’s brief of argument. I have read the way and manner these issues for determination were considered and effectively resolved in the Reasons for Judgment prepared and delivered by my learned brother Nweze, JSC. for allowing this appeal and I adopt them as mine.
However, I wish to further emphasized on the rather reckless behavior of the Court below in refusing to be guided by the decision of this Court but relied on its own decision to decide that
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it was unnecessary to call the makers of documents Exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examiantion for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at 322 323 which the Court below refused to apply in place of its own decision in AREGBESOLA VS. OYINLOLA (2011) 9 NWLR (Pt.1253) 458. See also the cases of SA’EED VS. YAKOWA (2013) 7 NWLR (Pt.1352) 124 AT 149 150 and OSIGWELEM VS. INEC (2011) 9 NWLR (Pt.1253) 425 at 451.
In the present case, the failure to demonstrate the contents of the Card Reader Report in particular through its maker and denial of the Appellant of the opportunity to cross-examine the maker for the purpose of testing the veracity of the
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document, amounts to denial of fair hearing to the Appellant because it would have given the opportunity to the Appellant to establish the vital evidence that Exhibit 317 was incomplete and incapable of containing the entire number of voters accredited during the election. In otherwords, it was wrong for the Court below without the makers of Exhibits 317 and 322, to rely on the probative value of the documents to determine the total number of voters accredited during the election to support the Judgment of the Court nullifying the entire election in Akwa Ibom State in the absence of clear and credible evidence showing non-compliance with the Electoral Act, 2010 (as amended) in the document of the election which substantively affected the results of the election.
It is for the above reasons and more comprehensive reasons given by my learned brother Nweze JSC in his own Reasons for Judgment allowing the appeal which I hereby adopt as mine, that I also allowed the appeal and promised to give my own reasons for doing so today.
IBRAHIM TANKO MUHAMMAD, J.S.C.: On Wednesday, 3rd of February, 2016, I agreed with my learned
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brother, Nweze, JSC, who delivered the lead judgment, allowing the appeal and reasons for doing so adjourned to today.
My learned brother, Nweze, JSC, afforded me the opportunity to read before today, the reasons he marshaled for allowing the appeal. I am in agreement with him in his reasoning which I adopt as mine. I have nothing more. I have nothing more to add. I allow the appeal and abide by consequential orders made in the lead reasoning including order on costs.
SULEIMAN GALADIMA, J.S.C.: On the 3rd day of February, 2016 when this appeal was heard, I agreed with my learned brother NWEZE JSC, who delivered the lead judgment allowing the appeal for being meritorious; I am in entire agreement with his reasonings and conclusions. I cannot improve on them. I therefore allow this appeal and I shall abide by the consequential orders he has made in the lead judgment including order as to costs.
OLABODE RHODES-VIVOUR, J.S.C.: I agree with the reasons given by my learned brother, Nweze JSC, and allow this appeal.
KUMAI BAYANG AKA’AHS, J.S.C.: I allow
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this appeal on 3rd February, 2016 and adjourned the reason for judgment to today 15th February, 2016.
This appeal should not have been split from appeal No.SC.1/2016. I therefore adopt the reasons for judgment in SC.1/2016 and allow the appeal.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: When we heard this appeal on Wednesday 3rd February 2016, I agreed with the lead judgment of my learned brother, Nweze, JSC that the appeal has merit and I accordingly allowed it. I promised to give my reasons for so doing today, 15th February 2016.
This appeal arose out of the Governorship election held in Akwa Ibom State on 11th April, 2015 wherein the Appellant was returned as the duly elected Governor of the State. It is against the decision of the Court of Appeal delivered on 18th December 2015 setting aside the judgment of the Akwa Ibom State Governorship Election Tribunal delivered on 21st October, 2015, which nullified the election in eighteen Local Government Areas of the State. In its place, the Court of Appeal nullified the election in the entire State and ordered fresh elections. The decision of the trial Tribunal
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gave rise to several appeals, namely, SC.1/2016, SC.2/2016, SC.4/2016, SC.6/2016, SC.7/2016 and the instant appeal, SC.3/2016 between the same parties and on substantially similar grounds.
I have had the benefit of reading before now the reasons just proffered by my learned brother, Nweze, JSC for allowing the appeal. I agree entirely and adopt the reasons and conclusions as mine, I abide by all the consequential orders made, inclusive of costs.
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Appearances
D. Dodo (SAN) with him, Chris Uche (SAN), Paul Usoro (SAN), Chief O. E. B. Offiong (SAN), Gordy Uche (SAN), Dr. G. O. A. Ogunyomi, Nelson Uzuegbu, Reginald Nwobbi, Nasir A. Dangiri, Isaac Anumudui Audu Anuga, Dan Abia, James Odiba, Ofombuk Akpabio (Mrs.), Terhemba Gbashima, Utibe Nwoko, Adetola Ibironke (Miss), Obafolahan Ojibara, Mfon Udeme, A. F. Jumbo, Stella Ebrimoni (Miss), Patrick Okoh, Ime Edem-Nse, Samson A. Eigege, Luter I. Atagher, Ginika Ezeoke, Ikechukwu Duru, Yunusa Umaru, prince Nwafuru, Olatunji Muritala, Emem Umoh (Miss), Ifeanyi Ndumnego, Kanayo Okafor, Emmanuel Okorie, Uzoma Nwosu Iheme, Isaac Nwachukwu, E. J. Imuekemeh (Miss), Olakunle Lawal, Blessing Akinsehinwa, Francis Genesis, Modetus Atozie, Ufedo Tom-Yakubu (Miss), James Ebbi, Francis Nsiegbunam, Ijeoma Nwosu (Miss), Jummai Pam, Chinwendu Nduka-Edede (Miss), and Na-Eema Goje (Miss) For Appellant
AND
Chief Wole Olanipekun OFR (SAN) with him, Solomon Umoh (SAN) Dayo Akinlaja (SAN), Chief Victor Iyanam, Femi Morohundia, Bola Aidi, Austin Otah, Sji Olowolafe, Edet Ating, Benjamin Alabi, Effiong Abia, Ubong Offiong, Olabode Olanipekun, Effong Oquong, Olubukola Araromi (Mrs), Aisha Aliyu (Mrs), Bolarinwa Awujoola, C. M. Dioji, F. S. Abiodun, Temitope Olanipekun (Miss), Adebayo Majekolagbe, Tolu Adetomiwa, S. O. Enejah, Ademola Oyelayo, Madu Gadzama and Chukwudifu Mbamali for 1st and 2nd Respondents
Tayo Oyetibo (SAN) with him, Adekunle Oyesanya (SAN), Dominic Okon, Edet Bassey, Emmanuel Akpan, Nsikak Udoh, Paul Mgbeoma, M. Mene-Josiah, Faruk Khamagam, Onyinye C. Nwagbarra and Jennifer Adole for 3rd Respondent
Dr Onyechi Ikpeazu, OON (SAN) Elder Paul Ananaba (SAN) Raymond Anyawata, E. A. Ibrahim Effiong, Ijeoma Utchay (Mrs), Alex Ejesieme, Onyinye Anumonye, Emeka Nri-Ezedi, Emeka Eze, Ogechi Ogbonna, Nwachukwu Ibegbu, Obinna Onya, Chuka Ikpeazu, Julius Mba and Emmanuel Rukari for 4th and 5th Respondents For Respondent
