IN THE COURT OF APPEAL OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU
APPEAL NUMBER: CA/E/98/2024

BETWEEN:
ACTION ALLIANCE APPELLANT

AND

ENUGU STATE INDEPENDENT ELECTORAL COMMISSION RESPONDENT

APPELLANT’S BRIEF OF ARGUMENT

SETTLED BY:

C. D. Ogbe Esq.
Chief G. C. Madubuegwu Esq.
N. L. Okolo Esq.
E. C. Arum Esq. (PhD).
C. C. Okwukalazu Esq.
P. B. C. Chukwuemeka Esq.
E. C. Chukwu Esq.
Solicitors to the Appellants
Chukwunonso Daniel Ogbe & Co.
(Victoria Acerta Chambers)
No. 18 Ufuma Street
Achara Layout
Enugu
Enugu State
08030999540
ogbeunec@yahoo.com

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 IN THE COURT OF APPEAL OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
APPEAL NUMBER: CA/E/98/2024

BETWEEN:
ACTION ALLIANCE APPELLANT

AND

ENUGU STATE INDEPENDENT ELECTORAL COMMISSION RESPONDENT

INDEX
S. N. ITEM PAGE
1. INTRODUCTION
2. BRIEF STATEMENT OF MATERIAL FACTS
3. ISSUES FOR DETERMINATION
4. ARGUMENT ON ISSUES FOR
DETERMINATION
5. PRAYER/CONCLUSION
6. LIST OF AUTHORITIES

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 IN THE COURT OF APPEAL OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
APPEAL NUMBER: CA/E/98/2024

BETWEEN:
ACTION ALLIANCE APPELLANT

AND

ENUGU STATE INDEPENDENT ELECTORAL COMMISSION RESPONDENT

APPELLANT’S BRIEF OF ARGUMENT MADE PURSUANT TO

ORDER 19(2) OF THE COURT OF APPEAL RULES 2016

1.0 INTRODUCTION

This is an appeal against the judgment of the Enugu Judicial Division of the
High Court of Enugu State, presided over by His Lordship, the Hon. Justice C.
O. Ajah, PhD, in the case of Action Alliance v. Enugu State Independent
Electoral Commission with suit number E/682/2023 and delivered on the 1 st
day of December 2023, in which the learned trial Judge of the Court below
partly found in favour of the Appellant and held that the Respondent is to
conduct local government council elections in Enugu State in a manner that is
not at variance with the Electoral Act 2022; but went further to hold that it is not
mandatory for election results in local government council election conducted
by the Respondent in Enugu State to be transmitted and/or transferred
electronically through the Bimodal Voters Accreditation System. The learned
lower Court further went on to hold that the Honourable Attorney General of
Enugu State can represent the Respondent in Court and that the processes filed

3
by the lawyers who represented the Respondent at the lower Court were
properly signed.

2.0 BRIEF STATEMENT OF MATERIAL FACTS

The Appellant on the 25th day of August 2023, by way of Originating Summons,
commenced an action against the Respondent at the Honourable lower High
Court of Enugu State, on the ground that the Respondent failed, refused and/or
neglected to activate the law for the purpose of conducting election into the 17
local government councils of Enugu State in a manner envisaged by the 1999
Constitution of the Federal Republic of Nigeria. The gravamen of the
Appellant’s case against the Respondent in a nutshell, is that the Respondent
should conduct the local government council election of Enugu State in the
same manner that Area Councils elections of the Federal Capital Territory are
conducted by the Independent National Electoral Commission, pursuant to the
provisions of the Electoral Act 2022, inclusive of the use of Bimodal Voters
Accreditation System(BVAS) in transmitting electronically, election result
garnered at the end of local government council election conducted by the
Respondent in Enugu State. The Appellant also raised issues on the competence
of the processes filed by the team of lawyers who represented the Respondent at
the lower High Court of Enugu State, on the ground that the Honourable
Attorney General of Enugu State and other lawyers who work in the Ministry of
Justice of Enugu State who represented the Respondent, cannot legally
represent the Respondent in Court. The Appellant further argued that the
processes filed by the Respondent’s lawyers were not properly signed, owing to
the fact that the name of the exact lawyer who filed the process was not been
ticked on the processes filed.

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The learned trial Court at the end of the adjudication of the matter brought
before the lower Court, found partly in favour of the Appellant and held that the
Respondent is to conduct local government council elections in Enugu State in a
manner that is not at variance with the Electoral Act 2022. The learned trial
Court however refused to find in favour of the Appellant as per the requirement
to have election results in local government council election conducted in
Enugu State, transmitted and/or transferred electronically through the Bimodal
Voters Accreditation System. The learned trial Court further held that the
Honourable Attorney General of Enugu State can represent the Respondent in
Court and that the processes filed by the lawyers who represented the
Respondent at the lower Court were properly signed. The judgment of the
learned trial Court necessitated the present appeal brought before the
Honourable Court.

3.0 ISSUES FOR DETERMINATION

In the opinion of the Appellant, three (3) issues are to be appraised by my

Lords, for a just determination of this appeal to be achieved. These issues would
be taken and addressed seriatim.

3.0.1 ISSUE NUMBER 1

Whether the processes filed by the Respondent are valid by virtue of the
manner in which the processes were signed and filed?

This issue is distilled from Ground 1 of the Notice of Appeal.

ARGUMENT IN SUPPORT OF ISSUE

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1. We refer my Lords to the Memorandum of Conditional Appearance as
filed by the Respondent in this suit dated the 25 th day of October 2023 as
seen at page 68 of the Record. On the face of the Memorandum of
Conditional Appearance of the Respondent, the names of the following
lawyers were written, as lawyers who filed the process for the Defendant,
to wit: Dr. Kingsley Udeh (Attorney-General, Enugu State), V. C.
Emeribe McArb (Solicitor General), W. I. Ezenwukwa (Director), and
Chijioke A. Ogbonna (Senior Legal Officer). The name of the exact
counsel who signed the Memorandum of Appearance was not ticked as
required by law, in which case, it is deemed in the eyes of the law that the
Memorandum of Appearance of the Respondent was not signed, which
issue is jurisdictional and divests the Court of the powers to accord any
legal attention to the processes filed by the Respondent.

2. It is immaterial that the seal and stamp of the Honourable Attorney

General of Enugu State Dr. Udeh Kingsley Tochukwu was affixed to the
process. The name of the exact counsel who signed the process has to be
ticked in order for the exact counsel to be made known. Our submission
in this regard finds support in the cases of Tanimu v. Rabiu (2017) All
FWLR (Pt. 900) 391 S.C., where it was held that the mere presence of the
stamp and seal of the Nigerian Bar Association on a document without
linking it to the signature endorsed thereon, is not sufficient proof that the
stamp and seal belongs to the person who signed the document, or
conversely that the signature that appears on the document belongs to the
person whose stamp and seal is affixed thereto.

3. In the case of Anthony Ani and 3 Ors. v. Etubom Essien Ekpenyong

Effiok and 2 Ors., (2023) LPELR-59783 (SC), it was held that if there
are multiple names of lawyers stated in the originating process, the name

6
 of the lawyer who signed it should be clearly written by way of a
signature or, where a mark was used as a signature, the name of the
lawyer who inserted the mark should be ticked. If the person who signed
the process cannot be identified as a legal practitioner upon an
examination of the process itself, it will be struck out.

4. In the case of Inakoju v. Adeleke (2007) 2 NJSC @ page 199, it was held
by the Supreme Court of Nigeria that a Memorandum of Appearance is
simply to indicate that the suit will be contested. If the defendant fails to
enter an appearance, the suit will be treated as undefended and the
plaintiff may proceed to ask for judgment to be entered in his favour or
for the case to be set down for hearing. Thus, there being no legally valid
Memorandum of Conditional Appearance filed by the Respondent owing
to the manner in which the process was signed as seen at Page 68 of the
Record, it is deemed in the eyes of the law that the case of the Appellant
at the lower Court was unchallenged, and we so urge my Lords to hold.

5. The same anomaly inherent in the Memorandum of Conditional

Appearance filed by the Respondent also exists in the Written Address
filed for the benefit of the Respondent as could be seen at page 83 of the
Record. We respectfully submit that the lower Court was under duty to
discountenance the Memorandum of Conditional Appearance as well as
the Written Address, as filed by the Respondent, and should have struck
them out, owing to the manner in which they were not properly signed.

6. We refer my Lord to the provision of Rule 10(2) of the Rules of

Professional Conduct for Legal Practitioners 2007 and submit that an
affidavit is one of the documents that should have affixed to it a seal and
stamp approved by the Nigerian Bar Association. The person who

7
 deposed to the Counter Affidavit of the Respondent in opposition to the
case of the Appellant, being Benjamin Aneke stated that he is a Senior
Legal Officer as could be seen at Page 70 of the Record. Accordingly,
by virtue of the provision of Rule 10(2) of the Rules of Professional
Conduct for Legal Practitioners 2007, learned Senior Legal Officer
Benjamin Aneke is expected to affix his seal and stamp approved by the
Nigerian Bar Association to the Counter Affidavit which he deposed to
and filed for the use and/or benefit of the Respondent.

7. The Appellant’s counsel raised the issue of failure of the deponent to the
Respondent’s counter affidavit who is a lawyer to affix his seal and stamp
approved by the Nigerian Bar Association to the counter affidavit which
he deposed to as could be seen at Pages 102 to 103 of the Record, lines
22 to 28, and the Respondent failed, refused, and/or neglected to address
the anomaly. We respectfully submit that the Honourable lower Court
erred in law by according legal attention to the Counter Affidavit of the
Respondent in opposition to the case initiated herein by the Appellant,
owing to the lawyer who deposed to the counter affidavit failing, refusing
and/or neglecting to remedy the anomaly contained in the counter
affidavit so filed by not affixing a seal and stamp approved by the
Nigerian Bar Association to the counter affidavit.

8. We accordingly respectfully submit that the case of the Appellant at the

lower Court is deemed unchallenged in law, owing to the failure and/or
neglect of the Respondent to sign and/or franks the processes filed by the
Respondent at the lower Court in a manner authorized by law.

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NUMBERED SUMMARY OF THE POINTS MADE AND REASON
UPON WHICH THE ARGUMENT IS FOUNDED

1. The processes filed by the lawyers who represented the Respondent at the
lower Court were not properly filed and accordingly divests the
Honourable Court of the jurisdiction to accord any legal attention to the
processes filed by the Respondent.

REASON

a. The Respondent’s lawyer(s) are under legal obligation to stipulate the

exact lawyer who franked the processes filed on behalf of the
Respondent.

b. The deponent to the counter affidavit of the Respondent is a lawyer and

failed to affix a seal and stamp approved by the Nigerian Bar Association
to the counter affidavit which he deposed to.

c. There mere presence of the seal and stamp of the Nigerian Bar
Association bearing the name of the Honourable Attorney General of
Enugu State on the processes filed for the benefit of the Respondent is not
conclusive evidence that the Honourable Attorney General of Enugu
State signed the processes filed for the Respondent.

We accordingly pray my Lord to resolve this issue in favour of the Appellant

and so hold that the processes filed by the Respondent are not valid as to
activate the jurisdictional power of the court to act on them.

3.0.2 ISSUE NUMBER 2

Whether the Attorney General of Enugu State and other officers directly
under the control of the Attorney General of Enugu State can validly
represent the Respondent in legal proceedings in Nigeria, going by a

9
purposeful and holistic interpretation of the laws that regulate the activities of
the Respondent?

This issue is distilled from Ground 2 of the Notice of Appeal.

ARGUMENT IN SUPPORT OF ISSUE

1. We submit that a proactive reading of the provisions of the Enugu State

Independent Electoral Commission Law, Cap. 59 Revised Laws of Enugu
State of 2004 (as amended) and the State Proceedings Law of Enugu
State Cap. 146 Revised Laws of Enugu State 2004 will make it clear that
the Respondent is to be represented by a lawyer who is not a counsel in
the Ministry of Justice, Enugu State as is the case with the 4 lawyers
whose names appeared as the lawyers that represented the Respondent at
the lower Court. Page 68 of the Record refers with regard to the 4
lawyers whose names appeared as the Respondent’s counsel at the lower
Court.

2. Section 9(1) of the State Proceedings Law of Enugu State provides:

‘………The Attorney-General on behalf of the State, may appear as a party

in any civil proceedings…………’

Thus, the Attorney General of Enugu State can only appear as a party in a civil
suit on behalf of the State. We submit that the Respondent is an independent
body created by law to be independent in all ramifications by a purposeful
reading of the provision of section 202 of the Constitution of the Federal
Republic of Nigeria 1999 (as amended), and should not be represented by an
appointee of the Governor of Enugu State, being the Honourable Attorney

10
General of Enugu State and/or by lawyers working under the control and/or
direction of the Honourable Attorney General of Enugu State.

3. Section 9 of the Enugu State Independent Electoral Commission Law,

Cap. 59 Revised Laws of Enugu State of 2004 (as amended), makes it
clear that the Respondent is to be an independent body. It provides:

‘In the discharge of its functions under this Law, the Commission shall not
be subject to the direction or control of any other person or authority.’

The provision of section 13(3) of the Enugu State Independent Electoral

Commission Law, Cap. 59 Revised Laws of Enugu State of 2004(as amended)
is also of paramount importance in determining this issue, which provision shall
reproduce for the purpose of clarity. It says:

‘The Commission shall have power to appoint either directly or on

secondment from the public service of the State such number of employees
as may, in the opinion of the Commission be required to assist the
Commission in the discharge of any of its functions under this Law, and
shall have power to pay to persons so employed such remuneration
(including allowances) as the Commission may, after consultation with the
State Civil Service Commission, determine.’

4. We submit that from the clear wordings of section 13(3) of the Enugu
State Independent Electoral Commission Law, Cap. 59 Revised Laws of
Enugu State of 2004(as amended) that if the Respondent seeks to have the
lawyers from the Ministry of Justice Enugu work for her, being a
department that falls under the Public Service of Enugu State, that the
Respondent has to appoint such persons to work for her and be under her
payroll. This is not the case with the scenario as transpired in this appeal,

11
 as the lawyers who appeared for the Respondent are all lawyers from the
office of the Attorney General of Enugu State, who are lawyers under the
payroll of the Government of Enugu State Government and not under the
direct control of the Respondent.

5. Accordingly, we respectfully submit that all the processes filed by the

Respondent in this suit are invalid and/or without any legal utilitarian
value, having emanated from the legal bossom of lawyers who are not
legally qualified to represent the Respondent in this appeal. The learned
trial Court, respectfully erred in law by according attention to the legal
representation made by lawyers who represented the Respondent at the
lower Court, when those lawyers prima facie are not qualified to
represent the Respondent, going by a holistic appraisal of the laws
regulating the activities of the Respondent as highlighted.

NUMBERED SUMMARY OF THE POINTS MADE AND REASON

UPON WHICH THE ARGUMENT IS FOUNDED

2. The Attorney General of Enugu State and other officers directly under the
control of the Attorney General of Enugu State cannot validly represent
the Respondent in legal proceedings in Nigeria.

REASON

d. The Respondent is an independent body which should not be under the

express or subtle control of anybody whatsoever, not being expressly
provided by law.

e. The Attorney General of Enugu State is an appointee of the Government

of Enugu State and the Government of Enugu State is not expected to
have subtle control over the activities of the Respondent.

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 f. The law establishing the Respondent has made it clear that any lawyer
under the direct payroll of the Government of Enugu State who is to be
legally-empowered to represent the Respondent in legal proceedings,
must be expressly assigned to the Respondent and to be under the direct
control of the Respondent.

We accordingly pray my Lord to resolve this issue in favour of the Appellant

and so hold that the Attorney General of Enugu State and other officers directly
under the control of the Attorney General of Enugu State cannot validly
represent the Respondent in legal proceedings in Nigeria, going by a purposeful
and holistic interpretation of the laws that regulate the activities of the
Respondent.

3.0.3 ISSUE NUMBER 3

Whether the Respondent is under duty to transfer and/or transmit

electronically, results of election conducted in the local government council of
Enugu State in a manner not inconsistent with and/or at variance with the
manner in which Area Council election results are transferred and/or
transmitted electronically; going by a holistic, purposeful, and rational
interpretation of the relevant provisions of the Constitution of Nigeria and
Electoral Act on the conduct of local government council election in Nigeria?

This issue is distilled from Ground 3 of the Notice of Appeal.

ARGUMENT IN SUPPORT OF ISSUE

1. We respectfully submit that the first point of departure in proffering

answer to the legal issue raised herein is a dispassionate appraisal of the
provision of section 4 and the consequential paragraphs 11 and 12 of part

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 2 of the second schedule to the Constitution of the Federal Republic of
Nigeria 1999, as amended, which envisages that the House of Assembly
of a State shall have powers to make laws with respect to election to a
local government council in addition to but not inconsistent with any law
made by the National Assembly.

2. We respectfully refer my Lords to the provision of section 150 of the

Electoral Act 2022 enacted by the Nigerian National Assembly, and same
shall be reproduced herein verbatim.

It provides:

1. In furtherance of the provision of Paragraph 11 of Part 2 of the

Second Schedule to the Constitution, the procedure regulating
elections conducted by the Commission to Area Councils in the
Federal Capital Territory under this Act, shall be the same and apply
with equal force as the procedure regulating elections conducted to
Local Government Areas by any State Commission.

2. For the purpose of subsection (1), a State Commission shall be

deemed to have and exercise the powers of the Commission in respect
of the procedure regulating elections to Area Councils under this Act.

3. Any election to a Local Government Area that is conducted by a

State Commission in violation of subsection (1) shall be invalid.

3. A vital provision of the Electoral Act 2022 which is to be considered

while determining the present appeal is the provision of section 104.
Same shall be reproduced verbatim. It provides:

“The procedure for filing nominations and the casting and counting of votes
for Area Councils elections shall be the same as is applicable to other
elections under this Act.”

Accordingly, the logical deduction to be made from the express provisions of

sections 150 and 104 of the Electoral Act 2022 is that the procedure which is to
be embraced by a State electoral commission in conducting local government
council election inclusive of the Respondent, shall not be in conflict with the

14
procedure through which an Area Council election is to be conducted by the
Independent National Electoral Commission (INEC). Furthermore, by virtue of
section 104 of the Electoral Act 2022, the local government council election to
be conducted by the Respondent or any other State Electoral Commission must
be conducted in the same manner and/or procedure as a general election is
conducted by INEC.

4. Sections 50 subsection 2 and 60 subsection 5 of the Electoral Act 2022

provides for the procedure to be embraced during the conduct of general
elections, which also applies to the conduct of Area Council elections,
and furthermore on local government council elections to be conducted
by State Electoral Commissions in Nigeria, inclusive of the Respondent.
The two afore-highlighted sections of the Electoral Act 2022 envisages
that voting at an election and transmission of results under the Electoral
Act shall be in accordance with the procedure determined by the
Independent National Electoral Commission and by extension the
Respondent and other State Electoral Commissions while conducting
local government council elections. Furthermore, specifically by virtue of
section 60 subsection 5 of the Electoral Act 2022, the Independent
National Electoral Commission as well as State Electoral Commissions
are expected and/or required to transfer results as well as the total number
of accredited voters in an election, in a manner which INEC may
prescribe through its Presiding Officers who conduct election at the
Polling Units, and by extension, in a manner which the Respondent as
well as other State Electoral Commissions may prescribe but which shall
not be inconsistent with the procedure adopted by INEC.

15
5. The undisputed position of the law is that there must be a transfer of
election result as well as total number of accredited voters from the
Polling Units where such elections are conducted, at the end of voting
exercise in every election conducted in Nigeria. Section 62 of the
Electoral Act 2022 indicates that the manual steps in collating election
results must be carried out after the transfer of votes must have been
completed pursuant to section 60 of the same Act. A purposeful reading
of section 60 subsection 5 of the Electoral Act 2022 envisages that the
transfer of the votes must be done electronically, as a Presiding Officer in
an election has to count and announce the election result, count and
transfer same together with the total number of accredited voters, before
resorting to the post election procedure and collation of election results.

6. The Respondent, as well as INEC has the right to determine how that
electronic transfer of election results and the total number of accredited
voters is to be carried out at the end of every voting and/or election
exercise. However, the Respondent and other State Election Commissions
have a limit to the nature of the power they can exercise in that regard,
being that any procedure embraced for the transfer of votes and
accreditation of voters in a local government council election conducted
by a State Electoral Commission in Nigeria, must not be at variance with,
and/or inconsistent with the procedure to be embraced by INEC.

7. The learned lower Court, is in agreement with the fact that the provisions
of the Electoral Act 2022 with regard to the conduct of Area Council
election, applies to the conduct of local government council elections in
Nigeria, inclusive of the local government council elections conducted by
the Respondent as seen at pages 138 to 139 lines 18 to 29 of the Record.
Nevertheless, the learned lower Court, while relying on the case of Peter

16
 Obi & Anor v. INEC & 3 Ors. Petition No. CA/PEPC/03/2023 which has
been affirmed by the Supreme Court, held that the Independent National
Electoral Commission whose pattern of conduct of Area Council election
the Respondent is to follow in the conduct of local government council
election in Enugu State is not bound to adopt electronic transmission
and/or transfer of results of election from Polling Unit to Collation
Centres as the Electoral Act did not make provision for electronic
transmission and/or transfer of results of election mandatory.

8. We respectfully submit that the stance of the lower trial Court on the
prayer of the Appellant on the resort to electronic transmission of results
in local government council elections in Enugu State, differs in material
terms from the relief sought in that regard by the Appellant. We
respectfully refer my Lords to page 5 lines 4 to 17 of the Record, being
the 8th relief sought by the Appellant in the Originating Summons filed at
the lower Court, and submit that the Appellant prayed the Honourable
Court for the electronic transmission and/or transfer of election result
from the Polling Units where such election results are announced and/or
declared by the officials of the Respondent, together with the total
number of accredited voters as being done by the Independent National
Electoral Commission. The Appellant never prayed for the electronic
transmission and/or transfer of results of election from Polling Unit to
Collation Centres, as held by the learned lower Court at page 40 lines 1
to 17 of the Record.

9. It is our respectful submission that the Supreme Court of Nigeria has

declared the electronic transmission and/or transfer of election results in
elections conducted by INEC which the Respondent is bound to follow
and/or emulate, mandatory, as opposed to the blank assertion and/or

17
 stance of the Respondent that the electronic transfer and/or transmission
of votes cast in election in Nigeria is not mandatory.

10.In the case of Oyetola v. I.N.E.C. (2023) 11 NWLR (Pt. 1894) 125 S.C.,
at page 146 ration 14, it was held that by virtue of Regulations 48(a) the
Regulations and Guidelines for the Conduct of Elections 2022, an
election result shall only be collated if the Collation Officer ascertains
that the number of accredited voters agrees with the number recorded in
the BVAS and votes scored agrees with the number recorded on the result
sheet is correct and agrees with the result electronically transmitted or
transferred directly from the polling unit as prescribed in the Regulations
and Guidelines. It was further held that there is no part of the Electoral
Act and INEC Regulations and Guidelines that require that election result
of a polling unit should on the spot during the poll be transmitted to the
INEC National Electronic Register or data base. Rather, the Regulations
provide for the BVAS to be used to scan the completed 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.

11.Thus, we respectfully submit that a critical cum purposeful appraisal of

the case of Oyetola v. I.N.E.C. (Supra), indicates that electronic
transmission and/or transfer of election result is mandatory. What is not
mandatory is the immediate transfer of such election result to INEC
National Electronic Register of database. The decision of the Supreme
Court in the case of Oyetola v. I.N.E.C. (Supra) on the use of BVAS, nay
resort to electronic transmission and/or transfer of election result of
elections conducted by INEC, has not been overruled by the Supreme
Court of Nigeria and still represents the position of the law. The Court
held in the case of Oyetola v. I.N.E.C. (Supra) that in the event of a

18
 conflict between the record of accredited voters in the BVAS machine
and ticked names in the register of voters due to human errors in the
ticking of the names in the register of voters, the BVAS record shall
prevail.

12.In the case of Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39

S.C., it was held that it will be dangerous to consider any pronouncement
of any court, even the Supreme Court, in vacuo and without reference to
the peculiar facts of the case in which those pronouncements were made
as those facts framed the issues that were decided. In the case of Izeze v.
INEC (2018)11 NWLR (Pt. 1629) 110 S.C., it was held that
pronouncements of the Supreme Court must at all times be considered
after understanding the facts and circumstances in which the
pronouncements were made. It would amount to citing cases out of
context if pronouncements are relied on without relating them to the facts
that induce them. A case is an authority for what it decides.

13.We respectfully submit that a purposeful reading of the case of Peter Obi
& Anor v. INEC & 3 Ors Petition No. CA/PEPC/03/2023 as affirmed by
the Supreme Court, would make it clear that the use of BVAS which is a
facility used for the electronic transmission and/or transfer of election
votes, for the conduct of election by INEC is mandatory. The law is clear
to the effect that there is no room for electronic collation of result, as it is
through the register of voters that collation of election result is conducted,
being that there is still resort to manual collation of election result in
Nigeria. Nevertheless, the mandatory electronic transmission and/or
transfer of votes garnered in election conducted by INEC has not been
jettisoned by the Supreme Court of Nigeria, in which case manual
collation of result, must go on side by side with the electronic

19
 transmission and/or transfer of the votes recorded in the given election.
Going by the provisions of section 150 of the Electoral Act 2022, the
Respondent is bound to make use of BVAS or any other similar
electronic device that INEC may stipulate, in the conduct of local
government council election in Enugu State of Nigeria.

NUMBERED SUMMARY OF THE POINTS MADE AND REASON

UPON WHICH THE ARGUMENT IS FOUNDED

1. The learned trial Court erred in law by holding that electronic

transmission and/or transfer of votes garnered in an election is not
mandatory.

2. The learned trial court did not totally appreciate the ambit of the prayer of
the Appellant with regard to the electronic transmission and/or transfer of
votes garnered in an election.

REASON

a. The Supreme Court of Nigeria in the case of Oyetola v. I.N.E.C. (2023)

11 NWLR (Pt. 1894) 125 S.C., has declared the electronic transmission
and/or transfer of votes to be mandatory, and also delimited the ambit of
the beneficial use of electronic transmission and/or transfer of votes in the
conduct of elections in Nigeria.

b. The Supreme Court of Nigeria has not overruled itself in the case of
Oyetola v. I.N.E.C. (2023) 11 NWLR (Pt. 1894) 125 S.C.

20
 c. The judgment of the Supreme Court affirmed in the case of Peter Obi &
Anor v. INEC & 3 Ors Petition No. CA/PEPC/03/2023 is not to be
interpreted in vacuo, as the Supreme Court never jettisoned the resort to
electronic transmission and/or transfer of votes garnered in election
conducted by INEC, but affirmed the position of the law that manual
collation of election result is still mandatory.

We accordingly pray my Lord to resolve this issue in favour of the Appellant

and so hold that the Respondent is under duty to transfer and/or transmit
electronically, results of election conducted in the local government council of
Enugu State in a manner not inconsistent with and/or at variance with the
manner in which Area Council election results are transferred and/or transmitted
electronically; going by a holistic, purposeful, and rational interpretation of the
relevant provisions of the Constitution of Nigeria and Electoral Act on the
conduct of local government council election in Nigeria.

4.0 PRAYER/CONCLUSION

We respectfully pray my Lords to allow this appeal, set aside the part of the
Judgment of the lower Court complained about by the Appellant in this appeal,
and in place of the part of the judgment of the lower Court complained about,
find in favour of the Appellant as per the reliefs 1, 2, 5, 6, 7, and 8 sought by the
Appellant against the Respondent at the lower Court as contained in pages 2 to
4 of the Record of the lower Court.

LIST OF AUTHORITIES

JUDICIAL

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 1. Anthony Ani and 3 Ors. v. Etubom Essien Ekpenyong Effiok and 2
Ors., (2023) LPELR-59783 (SC).
2. Clement v. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 S.C.
3. Inakoju v. Adeleke (2007) 2 NJSC @ page 199.
4. Izeze v. INEC (2018)11 NWLR (Pt. 1629) 110 S.C.
5. Oyetola v. I.N.E.C. (2023) 11 NWLR (Pt. 1894) 125 S.C.
6. Peter Obi & Anor v. INEC & 3 Ors. Petition No. CA/PEPC/03/2023.
7. Tanimu v. Rabiu (2017) All FWLR (Pt. 900) 391 S.C.

STATUTORY

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

sections 4, and 202.
2. Electoral Act 2022, sections 60(5), 62, 104, and 150.
3. Enugu State Independent Electoral Commission Law, Cap. 59 Revised
Laws of Enugu State of 2004 (as amended), sections 9 and 13(3).
4. State Proceedings Law of Enugu State Cap. 146 Revised Laws of Enugu
State 2004, Section 9(1).

RULES

Rule 10(2) of the Rules of Professional Conduct for Legal Practitioners 2007.

Dated at Enugu this 9th day of May 2024.

C. D. Ogbe Esq.
Chief G. C. Madubuegwu Esq.
N. L. Okolo Esq.
E. C. Arum Esq. (PhD).
C. C. Okwukalazu Esq.
P. B. C. Chukwuemeka Esq.
E. C. Chukwu Esq.
Solicitors to the Appellants
Chukwunonso Daniel Ogbe & Co.

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 (Victoria Acerta Chambers)
No. 18 Ufuma Street
Achara Layout
Enugu
Enugu State
08030999540
ogbeunec@yahoo.com

For Filing in Court:

For Service On:
The Respondent
Enugu State Independent Electoral Commission
No. 3 Achi Street
Independence Layout
Enugu
Enugu State

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