Abuja — The candidate of the Action Congress (AC) in the April 2007 presidential election, Alhaji Atiku Abubakar yesterday filed an appeal at the Supreme Court against the judgment of the Court of Appeal which affirmed the election of President Umar Musa Yar'Adua of the Peoples Democratic party (PDP) as the winner of the April 2007 presidential election.

Atiku in his appeal asked for an order of the apex court to set aside the decision of the Court of Appeal, which dismissed his petition.

He also demanded another order nullifying the presidential election held on the 21st day of April, 2007 and grant the prayers of the petitioners in the petition.

He is further demanding an order setting aside the ruling of the Court of Appeal "rejecting as inadmissible in evidence, the fifth defendant's post election report marked "EXHBIT 2008 Rejected" and admitting the same in evidence for consideration in this appeal pursuant to section 22 of the Supreme Court Act.

Atiku said in his appeal that the learned justices of the Court of Appeal misdirected themselves on the facts when at the introductory part of their judgment on page 60, they held that "the first respondent (Yar'Adua) scored a total of 24,638,063 while the first petitioner (himself) scored 2,637,848 votes respectively."

He said the lower Court came to the conclusion on the respective scores of the first petitioner and the first respondent without evaluating or resolving the evidence as to whether those votes were allocated as alleged by the petitioners in Paragraph 8 of the petition or actually scored as pleaded in Paragraph 9 of the first and second respondents' reply.

"There were at least three different versions of the results produced by the fourth respondent (INEC) and tendered by the petitioners which were conflicting (Exhibit EP/3/P27) and posted on the website of the fourth respondent after the declaration of the first respondent as winner, showing that no score was recorded for the first petitioner at the election.

"The lower court did not reconcile the conflicting versions in making the finding that the first respondent scored a total of 24,638,063 while the first petitioner scored 2,637,848 votes respectively."

Filed by Emeka Ngige, SAN, the appellant said if his claims were properly evaluated, the evidence credibly show that the total votes of 24,638,063 credited to the first and second respondents were allocated and were not lawful votes.

The appellant said: "The learned justices of the Court of Appeal erred in law when they held on page 67 of the judgment as follows: "It is settled law that issue estoppel cannot be invoked in the same case but in a different case. It is only in that circumstance that the first case in appropriate circumstances acts as issue estoppel against the second one," thereby occasioning a serious miscarriage of justice.'

Atiku argued that the INEC chairman, Professor Maurice Iwu should have been made a party to the suit and that it was wrong for the lower court to remove him and render all evidences against him useless.

According to him, the learned justices of the Court of Appeal erred in law and exceeded their jurisdiction in entertaining and sustaining the first and second respondents as well as the fourth to 808th respondents' objection to the competence of the petition and alleged improper joinder of the fifth respondent which had earlier been overruled in the course of trial.

Atiku said: "Having found that from the date of the nominations till the 16th of April, four days before the election of 21st April 2007, the first petitioner was unlawfully excluded; it was no longer open to the lower court to hold that he was not effectively unlawfully excluded, from the election."

On the ballot papers used which were not serialised, Atiku maintained that the lower court should not have ignored non-compliance with the Electoral Act 2006, saying the use of non-serialised ballot allowed rigging which worked against the appellant.

Atiku argued in his appeal: "The key to the validity of any election is the ballot paper used by voters to exercise their right to vote and if, as in this case, there is substantial and deliberate non-compliance with the provision relating to the printing of ballot papers, the non - compliance without further proof is enough to nullify the entire electoral process.

"The requirement for serialization of ballot papers is a prerequisite requirement which is further confirmed by the guidelines made pursuant to the Electoral Act that the quantity of ballot papers supplied to electoral officers must be receipted for in forms EC 40 series which should state the quantities and serial numbers of the ballot papers so received and that the quantity of unused/returned ballot papers should also be stated with their serial numbers.

"Without serialized ballot papers, it is impossible to relate the ballot papers used in any state, local government, ward and polling booths, thus making it impossible to check fraud and conduct an audit trail on the use of ballot papers for the purpose of accountability and audit trail."

The AC presidential candidate claimed that many eligible voters were disenfranchised as a result of the shifting of the period of voting, adding that the lower court did not consider evidence presented by the petitioners showing that in several polling stations across the country, voting did not take place at all on the 21st of April 2007, while in some others voting took place between 3 p.m. and 5 p.m, not lasting for more than two hours.