HON. SAMUEL E. ALLU & ANOR v. HON. PHILIP ARUWA GYUNKA & ORS (2015)

HON. SAMUEL E. ALLU & ANOR v. HON. PHILIP ARUWA GYUNKA & ORS

(2015)LCN/8009(CA)

In The Court of Appeal of Nigeria

On Monday, the 26th day of October, 2015

CA/MK/EP/SEN/14/2015

RATIO

PRACTICE AND PROCEDURE: NOTICE PRELIMINARY OBJECTION; WHEN SHOULD THE COURT DETERMINE A PRELIMINARY OBJECTION BORDERING ON JURISDICTION OF COURT

The Law is quite settled that when an Appellate Court is faced with Notice of Preliminary Objection, it is always better and neater to have it determined one way or the other. The reason is not farfetched. This is because a Preliminary Objection bordering on jurisdiction of a Court is a warning signal to the Court that it is about to embark on a matter that could lead to a nullity and so cannot be brushed aside. See (1) BARRISTER ORKER JEV & ANOR. VS. SEKAVAZUA IYORTYOM & ORS. (2O14) 8 SCM 131 at 151 E where my Lord OKORO, JSC pungently put it this way; “Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, f must say can be raised for the first time in this Court with or without Leave.” (2) OLUWAROTIMI O. AKEREDOLU & ANOR. VS. DR. RAHMAN OLUSEGUN MIMIKO & ORS. (2OL4) NWLR (PART 1388) 402at432 H to 433 A per NGWUTA, JSC. per. PETER OLABISI IGE, J.C.A.

APPEAL: NOTICE OF APPEAL; WHETHER ANY DEFECT IN A NOTICE OF APPEAL WILL ROB AN APPELLATE COURT OF ITS JURISDICTION TO ENTERTAIN AN APPEAL

It becomes all the more important to deal with the issue now because the settled position of the Law is that Notice of Appeal is the foundation and the substratum of every appeal. It is the Notice of Appeal that gives jurisdiction to this Court to hear an appeal by virtue of its Appellate Jurisdiction as contained in the Constitution of the Federal Republic of Nigeria 1999 as amended and the statute. Therefore any incurable defect in a Notice of Appeal will rob this Court the Jurisdiction or powers to entertain the Appeal. See (1) RALPH UWAZURUIKE & ORS. VS. ATTORNEY GENERAL OF THE FEDERATION (2OO7) I NWLR (PT. 1035); also reported as (2007) 5 SCM 193 at 200 where OGBUAGU, JSC puts it succinctly as follows: “ft is not in doubt that appeals are creatures of statutes, So, the Jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is Statutory and so guided by the Rules of Court The failure of the appellant or appellants, to comply with Statutory provision or requirements prescribed by the relevant law/Laws or Rules – (which are in the nature of a Subsidiary Legislation perforce must be obeyed) under which appeals may be competent and properly before the Court, will certainly deprive the Appellate Court, Jurisdiction to entertain and/or adjudicate on the appear” (2) NONYE IWUNZE V. FEDERAL REPUBLIC OF NIGERIA (2015) 6 NWLR (PART 14O4) 580 at 596 D- E per RHODES – VIVOUR, JSC who also lucidly said thus: “The Constitution confers an the Court of Appeal Jurisdiction to hear and determine appeals, The Jurisdiction is Statutory and controlled by the rules of Court. The Court of Appeal would lack Jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant Rules of Court The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of Appeal ceases to have Jurisdiction to entertain an appeal in whatever form.” per. PETER OLABISI IGE, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF A COURT OR TRIBUNAL TO EVALUATE EVIDENCE LED BY LEARNED COUNSEL BEFORE ARRIVING AT A DECISION

Now before a Court or Tribunal arrives at a decision in a matter the parties are under a bounden duty to call believable evidence oral or documentary or both of them to support and proof the facts contained in their pleadings. Thereafter the Court will assess and evaluate the pieces of evidence led and the materials in form of Exhibits placed before the Court or Tribunal considered along with the relevant submissions of their learned Counsel. The learned trial Court or Tribunal will then place the case of the parties on an imaginary scale in order to determine where the pendulum swings and party to believe. See ALIYU BALOGUN VS. ALHAII SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 per OPUTA, JSC of blessed memory. per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: SETTING ASIDE THE DECISION OF THE COURT; WHAT AN APPELLATE WHO SETS OUT TO HAVE THE DECISION OF A LOWER COURT OR TRIBUNAL SET ASIDE MUST PROVE OR ESTABLISH
Thus an Appellant who sets out to have the decision of a Lower Court or Tribunal displaced or set aside must prove or establish one or more of the following:
1. That the trial Judge or the Tribunal failed to make proper use of opportunity of seeing, hearing and observing the witnesses.
2. That the trial Court or Tribunal failed to exercise its discretion properly or judicially.
3. That the Court or Tribunal drew wrong conclusion from the accepted evidence or erroneous view thereon.
4. That the findings or evaluation of oral and documentary evidence are perverse.
See (1) NEWMAN OLODO & ORS. VS. CHIEF BURTON M. JOSIAH & ORS. (2010) 12 SCM 157 at 182 A – B per ADEKEYE JSC.
(2) MARKUS NATTNA GUNDTRT & ANOR. VS. REAR ADMTRAL M. H. NYAKO (2014) 2 NWLR (PART 1391) 211 at z4O A – C per OGUNBIYI, JSC. per. PETER OLABISI IGE, J.C.A.

APPEAL: INTERFERENCE; THE DUTY OF A TRIAL COURT TO EVALUATE EVIDENCE AND WHEN AN APPELLATE COURT CAN RE-EVALUATE THE FINDINGS OF THE TRIAL COURT

An Appellate Court will not lightly or take pleasure in setting aside the findings of fact based on evidence of witnesses who testified before the Lower Court or Tribunal.
See DR. SOGA OGUNDALU VS. CHIEF A. E. O. MAC JOB (2015) 3 SCM 113 at L24 B – D per RHODES – VIVOUR JSC who said:
“It is the duty of the Trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and ascription of probative value to such evidence are the primary functions of the trial Court This is so since that Court saw heard and watched the demeanor of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an Appellate Court can re-evaluate evidence furthermore, evaluation of a document is not within the exclusive preserve of the trial Court A trial Court and an Appellate Court have equal rights in evaluation of documentary evidence.” per. PETER OLABISI IGE, J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF THE PARTIES IN AN ELECTORAL PETITION HAD THE BURDEN OF REBUTTING THE PRESUMPTION OF REGULARITY OF THE RESULT DECLARED BY INEC

It is trite Law that where election including Senatorial Election are conducted and the Returning Officer of Independent National Electoral Commissioned announces the result of the election and returns a candidate as winner of the election in accordance with Section 68 (c) of the Electoral Act 2010 as amended the result is final subject to review by Election petition Tribunal or Court established by the Constitution and Electoral Act to hear and determine such election petition. The Law is also settled that there is presumption of regularity in favour of the result declared or return made by INEC (Independent National Electoral Commission).
The burden is therefore on the person or candidate who denies the correctness and authenticity of the result to rebut the presumption of regularity statutorily conferred on the return or the result of such election. See:
1. CHIEF NWOBODO V. CHIEF ONOH (1984) 1 SC 1 at 52 – 53.
2. CHIEF AKIN OMOBORIOWO VS. CHIEF MICHAEL AIASIN (1984) 1 SC 2OG at 277 – 228 per BELLO JSC later CJN of blessed memory.
3. CHIEF A. O. OKE & ANOR. VS. DR. R. O. MIMIKO & ANORS. (2014) 1 NWLR (PART 1388) 332 at 367 B – H to 368 A – H per PETER ODILI, JSC.
4. MARKUS NATINA GUNDIRI & ANOR. VS. REAR ADIMRAL M. H. NYAKO & ORS. (2014) 2 NWLR (PART 1391) 211 at 244 C – D per OGUNBIYI JSC who said:
“It is also relevant to mention that the burden of proof was on the appellants as petitioners to prove their petition- They are therefore under a duty if they must succeed to prove their case with all available evidence they could find. It is intriguing, I hold that the Polling Agents of the appellant, although they were themselves appointed specifically to witness the election and are recognized under the Electoral Act were not however called as witnesses. At least there is not evidence of such on the record.” per. PETER OLABISI IGE, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. HON. SAMUEL E. ALLU
2. ALL PROGRESSIVE GRAND ALLIANCE Appellant(s)

AND

1. HON. PHILIP ARUWA GYUNKA
2. PEOPLES DEMOCRATIC PARTY
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

PETER OLABISI IGE, J.C.A. (DELIVERING LEADING JUDGMENT): This appeal is an offshoot of the final Judgment of the NATIONAL AND STATE HOUSES OF ASSEMBLY ELECTION PETITION TRIBUNAL, HOLDEN AT LAFIA, NASARAWA STATE. Coram Hon. Justice Peter C. Obiorah (Chairman), Hon. Kadi Nurrudeen A. Mashi and Hon. Justice Naheem O. Durujaye, delivered on the 3rd day of September, 2015 in Petition No. EPT/NS/SEN/2/2015: Hon. Samuel E. Allu & Anor. Vs. Hon. Philip Aruna Gyunka & Ors, dismissing the said Petition. CA/MK/EP/SEN/14/2015.

The Appellants who were the Petitioners at the Lower Tribunal had approached the said trial Tribunal wherein they prayed for the following reliefs namely:
1. A declaration that the 1st and 2nd Respondents did not score the majority of Lawful votes cast in the Election of 28th March, 2015 for the office of the Senate in the Nasarawa North Senatorial District and therefore were not lawfully and validly returned as the winners of the said Election.
2. A declaration that the Election for the Nasarawa North Senatorial District of 28th March, 2015 is inconclusive in view of the fact that election did not

hold and or results collated in respect of LGEA Primary School Polling Unit in Lambaga/Arikra Electoral Ward.
3.An Order set aside the return and declaration of the 1st Respondent as the Senator elect for Nasarawa North Senatorial District into the National Assembly in the Election of 28th March, 2015 as he Election remains inconclusive.
4. An order directing the 3rd Respondent to forthwith conduct Election in LGEA Primary school polling Unit in Lambaga/Arikpa Electoral ward to determine the actual winner of the Senatorial District Election.

The reasons for the decision of the said Tribunal can be found on pages 457 – 459 thus:
“We are convinced that Section 53 of the Electoral Act, 2010 is the only relevant Law to the facts of this Case. On that basis, we hold that the result of the Polling Unit where the Petitioners got 366 votes could not have affected the overall result of the constituency where the 1st Respondent was leading with 457 votes, in other words, if the result of the Polling Unit had not been nullified and the scores were added to the parties, the 1st Respondent would still have won the Election with this finding we are

satisfied that the 3rd Respondent rightly exercised its discretion by going on with the declaration and return of the 1st Respondent without waiting for the conduct of another Election. We cannot close our eyes to the obvious fact that the Petitioners are the beneficiaries of the high score in the result of the disputed Polling Unit They scored 366 votes to the 1st Respondent’s paltry 36 votes. The petitioners called the Polling Unit their “identified strengths and strong support base.” if it were so, the Petitioners should have gotten it right the first time which was on 28th March, 2015. We cannot give them another chance at remedying their position by ordering for the conduct of another election at the Polling Unit The opportunity has come and gone and the result rightly nullified for over voting. it shall remain null and void for purposes of this election. From all the angles we have looked at this matter, we are satisfied that the 1st Respondent was rightly returned as the winner of the Election. The Petitioners have failed to establish that the 1st Respondent did not score a majority of lawful votes cast at the election. We therefore, resolve the lone

issue for determination in favour of the Respondents, In finality, we declare that there is no merit in this Petition, it is accordingly dismissed. For avoidance of doubt, we hereby reaffirm the return of HON. PHILIP ARUWA GYUNKA Of the Peoples Democratic Party as the duly elected Senator representing Nasarawa North Senatorial District of Nasarawa State in the Senate of the Federal Republic of Nigeria.”

The Appellants were dissatisfied with the above findings of the trial Tribunal and they filed Notice of Appeal dated 22nd day of September, 2015 on the same date containing fourteen grounds which without their particulars are as follows:
“GROUND ONE
The learned Justices of the Tribunal erred in Law when they held that:
“Exhibits P12, P13 and P14 are certified true copies of public records and Prima facie showed that election took place in the disputed Polling Unit ”
GROUND TWO
The learned Justices of the Tribunal erred in Law when they set down the Petitioners Petition for trial when there was no joinder of issues between the Petitioners and the Respondents in the Petition.
GROUND THREE
The learned Justices of the

Tribunal erred when they held that:
“This has effectively shifted the burden of proof to the Petitioners to show that the documents are false and that indeed no election took place. A Petitioner who pleaded that no voting took place in a Polling Unit must prove it by at least a registered voter from the Unit to show that he turned up for the election but could not vote.”
GROUND FOUR
The learned Justices of the Tribunal erred in Law when after affirming the nullification of the result of the disputed Polling unit (Form ECSA (1) ) by the 3rd Respondent for over voting held that:
“ft is important to say that what the Tribunal will do depends on the grounds and reliefs by the Petitioners in the case.”
GROUND FIVE
The learned Justices of the Tribunal erred in Law when they held as follows:
“Certainly the petitioners’ evidence and major reliefs are not in tandem with the ground of the Petition. They point clearly to a ground that the election was invalid by reason of corrupt practices or won-compliance with the provisions of the Electoral Act.”
GROUND SIX
The learned Justices of the Tribunal erred in Law when interpreting

Paragraph 40 (i) of the Approved Guidelines and Regulations for the conduct of 2O15 general elections held that:
“The above provision is clear and unambiguous. In our considered opinion, the above situation arises where the election was cancelled or not held in which case there is no result. In such a situation the registered voters will not be disenfranchised but must be given the opportunity to vote particularly when their number is in excess of the margin of win between the two leading candidates. ”
GROUND SEVEN
The learned Justices of the Tribunal erred in Law when they held that the result referred to by Section 53 (2) of the Electoral Act, 2010 as amended , is the one that was nullified because of over voting and not the one from a fresh election.
GROUND EIGHT
The learned Justices of the Tribunal erred in Law when they used the scores of the candidates contained in the nullified Exhibit P14 (ECSA (1) ) to affirm the declaration and return of the 1st Respondent without waiting for the outcome of the conduct of another election.
GROUND NINE
The learned Justices of the Tribunal erred in Law when they reopened the issue of

the incompetence of the Petitioners” Petition already determined with finality by this Court and this occasioned miscarriage of Justice.
GROUND TEN
The Judgment of the Tribunal is against the weight of evidence.
GROUN ELEVEN
The learned Justices of the Tribunal erred in Law when they branded the Petitioners’ call for another Election in the disputed polling Unit in their relief (d) a consequential order and this occasioned miscarriage of Justice.
GROUND TWELVE
The learned Justices of the Tribunal erred in Law when they held that:
“ft is the Court that nullified the Election that led to the Labour Party’s Case. Unlike in the instant case where the Election in LGEA Primary School Polling Unit was rendered null and void by simple operation of the rules of the Election because of over voting.”
GROUND THIRTEEN
The learned Justice of the Tribunal erred in Law when they relied on the case of Kakih v. PDP (2014) 15 NWLR (Pt I43O) 474 at 479 which held that:
“He made non-voting or misconduct or non-conduct of election the pivot of his case. It behoves on him to call at least one disenfranchised voter from each of the

Polling booths or Units or Stations in the affected constituency or district/area as a witness to testify in support of this allegation.” in holding that:
“fn the instant case the Petitioners merely asserted that no Election took place and no result was issued and voters were disenfranchised at LGEA Primary School Polling Unit The witnesses they called to prove their case none is a registered voter at the disputed Polling Unit ”
GROUND FOURTEEN
The learned Justices of the Tribunal erred in Law when they held that the petitioners did not prove that there was no Election in the disputed Polling unit ”

The Appellants filed their Brief of Argument dated the 6th day of October, 2015 on the same date. The lst Respondent’s Brief dated the 12th day of October, 2015 was filed on 20th day of October, 2015. Though there is evidence of Hearing Notice on the 2nd Respondent, the said Respondent filed no Brief of Argument. The 3rd Respondent’s Brief of Argument was dated 9th day of October, 2015 and filed that same date. I also like to mention that the Appellants filed Appellant’s Reply Brief to the 3rd Respondent’s Brief of argument on 15th day of

October, 2015. It is dated 14th October, 2015. Appellants also filed Appellants’ Reply Brief to the 1st Respondent’s Brief of Argument on 22nd day of October, 2015. It is dated same on the same date.

When this appeal came up for hearing on 22″d day of October, 2015 the Learned Counsel to the parties drew our attention to motions and Notice of Preliminary Objections already filed by them in this appeal. The learned Counsel to the Appellant DR. M. E. EDIRU informed the Court of Appellants’ application dated and filed on 6th October, 2015 wherein Appellants sought for;
1. Leave to raise and argue fresh issues already included in the Notice of Appeal as Grounds 2,3 and 14 and to the Notice of Appeal already filed as properly filed.
2. An order extending time for the Appellants to compile and transmit record of appeal to this Court and to deem same as properly compiled and transmitted.
3. An order deeming the Appellants Brief of Argument as properly filed and served.

On his part the learned Senior Counsel to the lst Respondent J. S. Okutepa, SAN on behalf of the 1st Respondent filed a Motion dated 7th day of October, 2015 on 9th october,

2015 wherein 1st Respondent prayed for:
(1) An order setting aside the service of Notice of Appeal and Record of Appeal in this matter allegedly served on James o. Agbo and y. H. Hassan Esq. on 28/9/20l5 and 2/10/2015 respectively “without leave of Court.”
(2) An order striking out the record of appeal in this matter “transmitted to this Court on 2/10/2015 on the ground that the said record of appeal was transmitted to this Court out of time.
(3) An order dismissing the appeal filed by the Appellants against the Judgment of the Lower Tribunal.

The Learned Counsel to the 3rd Respondent I.M. DIKKO Esq. filed Notice of Preliminary Objection dated 9th October, 2015 on the same date wherein 3rd Respondent contended that all processes in this appeal are incompetent in that they were filed in breach of Legal Practitioners Act and or Rules of Professional Conduct. 3rd Respondent also posited in his said objection that this Court is not competent to hear the appeal herein.

The learned Senior Counsel to the lst Respondent J. S. Okutepa. SAN later applied to withdraw his aforesaid Motion and same was struck out. The learned Counsel to the

Appellant also follow suit by withdrawing one after the other all the prayers in his aforesaid Motion and the Appellants Motion was also struck out for having been withdrawn.

It is pertinent to state that Appellants formulated six issues for the determination of the appeal viz:
1. Whether the trial Tribunal was right when it held that the appellants did not prove that there was no election at LGEA Primary school Polling unit (code oo3) in the general election into the Nasarawa North Senatorial District of Nasarawa state held on 28/3/2015 when in fact the Respondents did not join issues with the appellants in the petition by their failure to plead the constitutive sequence/acts that define an election. (Distilled from
grounds 2, 3 and 4).
2. Whether the trial Tribunal was right in relying on Exhibit p. 14 (Form ECSA (1) ) in its Judgment in holding that election took place in the disputed Polling Unit after affirming the nullification of same by the 3rd Respondent. (Distilled from grounds 1 and 1O),
3. whether the nullified Exhibit p. 14 (Form Ec8A (1) ) can form the basis for determining whether or not to order fresh election by the

Tribunal. (Distilled from grounds 6, 7 and 8).
4. Whether upon the fact no result from the disputed Polling Unit was collated into the overall result (Exhibit P. 1O) the Tribunal was right when it held that what it would do depended on the ground and reliefs in the petition. (Distilled from ground 4).
5. Whether the trial Tribunal was right when it re-opened the issue of the competence of the appellants’ petition already determined with finality by this Court in its Judgment of 31/7/2015. (Distilled from grounds 5 and 9).
6. Whether the trial Tribunal properly applied the case of Labour Party v. INEC and Kakih v. PDP to the Appellants’ Petition (Distilled from grounds 11, 12 and 13).

The first Respondent nominated three issues for the determination of the appeal thus:
“(i) Whether having regards to the State of pleadings the reliefs sought by the appellant and evidence led before the Tribunal below, the trial Tribunal was right in dismissing the Appellants’ Petition before it (Grounds 1, 2, 3, 4, 6, 7, 8, 70 and 74).
(ii) Whether the Tribunal below was wrong to have relied on the decision of the Supreme Court in Kakih vs. PDP and

refused to apply the case of Labour Party vs. INEC to come to the conclusion that, the appellants cannot be granted the Consequential Order of a fresh election at LGEA Primary School Polling unit of Lambaga/Arikpa Code OO3. (Grounds 11, 12 and 13).
(iii) Whether the Tribunal below was wrong when it held that the appellants’ evidence and major reliefs and not in tandem with the ground of Petition. (Grounds 5 and 9).”

Save for minor modifications or embellishment the 3rd Respondent’s formulated six issues which are all coterminous with six issues raised for the determination of this appeal by the Appellants.

At the point of the hearing of the appeal herein, the Learned Senior Counsel to the 1st Respondent drew attention of this Court to objections he incorporated into the 1st Respondent’s brief against the hearing of the appeal on the merit. He quickly sought for the permission of this Court to abridge the time to enable him argue the objection due to the fact that he did not give three clear days notice as required by the intendment of Order 10 Rule 1 of the Court of Appeal Rules 2011, The application was not opposed by other Learned Counsel in

the appeal and this Court made Order as prayed for by the Learned silk.

The Objection centered around the competence or otherwise of the Notice of Appeal and by extension the Jurisdiction of this Court to entertain the appeal. The grounds upon which the Objection is founded are:
(i) The Notice of Appeal is in breach of the mandatory provisions of Order 6 Rule 2 (1) of the Court of Appeal Rules 2011, in that the Notice of Appeal filed by the appellants failed to specify the decision of the Lower Court appealed against and those grounds are fresh issues of which leave of this Hon. Court or the Tribunal below.
(ii) The particulars in support of the grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Notice and grounds of appeal are argumentative, verbose, vague and unrelated to the grounds.
(iii) The Notice of Appeal is not signed and stamped by appellants’ Counsel as required by Law, this is in breach of Order 6 Rule 2 (4) of the Court of Appeal Rules and Rule 10 (1) and (2) of the Rules of Professional Conduct for Legal Practitioners 2OO7.

The learned Senior Counsel did not bother himself on grounds (i) and (ii) as he rather

concentrated his attack on the ground that the Notice of Appeal was not signed in accordance with the Law. That it is the Notice of Appeal that gives Appellate Court jurisdiction to hear an appeal. He relied on the case of ABIOLA VS. OLAWOYE (2006) 73 MLR (PT 996)1. That the Notice of Appeal herein having not been signed by a Legal Practitioner known to Law it is incurably defective and liable to be struck out. He cited and relied on the cases of:
1. OKARIKA VS. SAMUEL (2013) 7 NWLR (PT. 1352) 19 at 38 E -F.
2. NIGERIA ARMY VS. SAMUEL (2013) 14 NWLR (PT. 1375) 466 at 482 – 483 H – A.
3. ABBAS vS. TERA (2013) 2 NWLR (PT. 1338) 284 at 292 B – c.
4. FBN vs. MATWADA (2013) 5 NWLR (PART 1348) 444 at 506 D – F per ADEKEYE JSC.
Paragraph 1.09 of the ls Respondent’s Brief of Argument encapsulates the point being agitated upon. Therein Learned Silk said:
“There is no doubt that the name of the Legal Practitioner who signed the Notice of Appeal was not ticked neither is there any indication to show who signed the Notice of Appeal among the four Legal Practitioners listed below the signature and above the Law Firm of M. E, EDIRU and Co.”

In his oral argument before us the Learned Silk for the 1st Respondent was tenacious in his argument that the signature on the Notice of Appeal on page 474 of the record did not disclose the person that actually signed the Notice of Appeal because it did not state or show any ticking against the name of the Legal Practitioner that signed the Notice of Appeal. He also virulently launched attack on Appellants’ Brief of Argument as non existent and unknown to Law as it was afflicted with the same virus as the Notice of Appeal.
He strongly relied on the following decisions:
1. MR. ODEY OYAMA & ANOR. V. ENGR. C. N. OGIBE & ORS. Appeal No. CA/C/NAEA/152/2O15 delivered on 29/9/2O15.
2. HON. FIKI ERIC OLORUNJUWON & ANOR. VS. INEC & ORS. CA/EPT/342/2015 delivered on 6/8/2015.
3. NGIGE v. INEC (2015) 1 NWLR (PT. L44O) 281 at 318 – 319 H-A.
4. EKWULUGO VS. A.C.B. NIG. LTD. (2006) 6 NWLR (pT. 975) 30 at 42B – C.
5. AGBAJE VS. ADELEKAN (1993) 8 NWLR (PT. 310) 166 at 183 D.
6.OSINUPEBI v. SAIBU & ORS. (1932) 7SC 49 at 51.
7. SLB CONSORTIUM LTD. V. NNPC 2011 9 NWLR (PT. L252) 3L7 at 337 G. and

8. AROMTRE V. AIOMAGBERIN (2011) ALL FWLR (PT. 586) 540 at 558 A – C.

I. M. KIKKO Esq. for the 3rd Respondent supported and adopted the arguments of Learned Silk to the 1st Respondent/Objector. I. M. DIKKO also informed the Court of his intention not to press on with his own Notice of Preliminary Objection filed on behalf of the 3rd Respondent and same was struck out.

In his response to the submissions of the learned Senior Counsel to the 1st Respondent, the Appellants Learned Counsel DR. M. E. EDIRU relied on the Appellants ‘Reply Brief dated and filed 22/L012015. He relied on Sections 1 (1), 8 (1) and (2) of the Legal Practitioners Act to contend that only failure to pay practicing fees for current year can bar a Lawyer from practicing for that year. That he paid his practicing fees for the year. He submitted that the grounds of the objection are highly technical and admonish the Court to sway in favour of doing substantial justice. He relied on the case of ABUBAKAR v. YA’ADUA (2OO8) 4 NWLR (PART 7045) 465 at 577. He urged the Court to treat the judgment of this Court (Calabar Division) as being persuasive. That all the persons listed are Legal Practitioners.

The Law is quite settled that when an Appellate Court is faced with Notice of Preliminary Objection, it is always better and neater to have it determined one way or the other. The reason is not farfetched. This is because a Preliminary Objection bordering on jurisdiction of a Court is a warning signal to the Court that it is about to embark on a matter that could lead to a nullity and so cannot be brushed aside.
See (1) BARRISTER ORKER JEV & ANOR. VS. SEKAVAZUA IYORTYOM & ORS. (2O14) 8 SCM 131 at 151 E where my Lord OKORO, JSC pungently put it this way;
“Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised. Such issue, f must say can be raised for the first time in this Court with or without Leave.”
(2) OLUWAROTIMI O. AKEREDOLU & ANOR. VS. DR. RAHMAN OLUSEGUN MIMIKO & ORS. (2OL4) NWLR (PART 1388) 402at432 H to 433 A per NGWUTA, JSC.

It becomes all the more important to deal with the issue now because the settled position of the Law is that Notice of Appeal is the

foundation and the substratum of every appeal. It is the Notice of Appeal that gives jurisdiction to this Court to hear an appeal by virtue of its Appellate Jurisdiction as contained in the Constitution of the Federal Republic of Nigeria 1999 as amended and the statute. Therefore any incurable defect in a Notice of Appeal will rob this Court the Jurisdiction or powers to entertain the Appeal.
See (1) RALPH UWAZURUIKE & ORS. VS. ATTORNEY GENERAL OF THE FEDERATION (2OO7) I NWLR (PT. 1035); also reported as (2007) 5 SCM 193 at 200 where OGBUAGU, JSC puts it succinctly as follows:
“ft is not in doubt that appeals are creatures of statutes, So, the Jurisdiction of the Court of Appeal to adjudicate on any matter brought before it is Statutory and so guided by the Rules of Court The failure of the appellant or appellants, to comply with Statutory provision or requirements prescribed by the relevant law/Laws or Rules – (which are in the nature of a Subsidiary Legislation perforce must be obeyed) under which appeals may be competent and properly before the Court, will certainly deprive the Appellate Court, Jurisdiction to entertain and/or adjudicate on the appear”

(2) NONYE IWUNZE V. FEDERAL REPUBLIC OF NIGERIA (2015) 6 NWLR (PART 14O4) 580 at 596 D- E per RHODES – VIVOUR, JSC who also lucidly said thus:
“The Constitution confers an the Court of Appeal Jurisdiction to hear and determine appeals, The Jurisdiction is Statutory and controlled by the rules of Court. The Court of Appeal would lack Jurisdiction to hear an appeal if an Appellant fails to comply with Statutory Provisions or the relevant Rules of Court The originating process in all appeals is the Notice of Appeal. Once it is found to be defective the Court of Appeal ceases to have Jurisdiction to entertain an appeal in whatever form.”

The issue in serious contention here is whether the failure of the Appellants, Learned Counsel to tick or indicate by the side of one of the four Legal Practitioners that signed the Notice of Appeal filed on 22nd September, 2015 renders the Notice of Appeal incompetent and consequently in 1st Respondent’s learned Counsel’s view, whether all other processes anchored to it including Appellants Brief of Argument are all complete nullity. It is significant to note that all the cases he relied upon are cases

decided upon Sections 2 (1) and 24 of the Legal Practitioners Act 2004 beginning from OKAFOR VS. NWEKE (2OO7) 3. SC (Part (1) 55.
The full panel of the Supreme Court of Nigeria was constituted by HON. CHIEF JUSTICE of Nigeria, HON. JUSTICE MUSDAPHER CJN (Rtd.) to revisit and reexamine the decision of Supreme Court in OKAFOR V. NWEKE due largely to a lot of heat and controversies generated by the decision as to whether it would not be breeding technical justice or injustice to litigants and other stakeholders in administration of justice. This was in the case of FIRST BANK OF NIGERIA PLC & ANOR. VS. ALHAJI SALMANU MAIWADA & ORS. (2013) 5 NWLR (PART 1348) 444. My Noble Lord FABIYI JSC who delivered the lead Judgment took time to explain the reason the decision in OKAFOR V. NWEKE must remain immutable on who is qualified to sign Court process and the reasons therefore. On pages 482 F – 483 A – G his Lordship said concerning Sections 2 (1) and 24 of the Legal Practitioners Act as follows:
“The purpose of Sections 2 (1) and 24 of the Act is to ensure that only a Legal Practitioner whose name is on the Roll of this Court should sign Court processes. It

is to ensure responsibility and accountability on the part of a Legal Practitioner who signs a Court Process. It is to ensure that fake Lawyers do not invade the procession. This, in my considered opinion, accords with the Sacred Canon of interpretation of Law.
Thus the decision of the Apex Court has thus been cast in iron. The authorities are speaking with one voice that all initiating Legal Processes and all others Court Processes not signed by a Legal Practitioner whose name is on the Roll will be a nullity. Such process cannot confer Jurisdiction on the Court and no validity will be accorded such process unless signed by a Legal Practitioner in accordance with Sections 2 (1) and 24 of Legal Practitioners Act Cap LII, LFN 2004.

A cursory look at the Signature portion of the Notice of Appeal in this matter reveals the following on page 474 of the record viz:
‘Date this 22nd day of September, 2015.
sgd:
DR. M. E. EDTRU
JOHN OVYE, ESQ.
S. N. YUSUF ESQ.
S. N. YUSUF ESQ.
o. G. EDIRU, ESQ.
COUNSEL TO APPELLANTS.
M. E. EDIRU & CO,
ADJUYA CHAMBERS
No, 23, DOMA ROAD,
LAFIA NASARWA STATE.

0803608574.”

Can it be said that the Notice of Appeal herein was not signed in tandem and in accordance with Sections 2 (1) and 24 of the Legal Practitioners Act, 2004 LFN 2004? The answer to this question can be found in case of SLB CONSOTIUM LTD. VS. NNPC (2011) 5 SCM L87 at 197 – 198 where my Lord ONNOGHEN JSC who incidentally delivered the leading Judgment in OKAFOR V. NWEKE Supra demonstrates the acceptable manner of signing Legal process(es) by Legal Practitioners thus:
“The above decision clearly states that a process prepared and filed in a Court of Law by a Legal Practitioner must be signed by the Legal Practitioner and that it is sufficient signature if the Legal Practitioner simply writes his own name over and above the name on top of Adewale Adesokan & Co. because Mr. Adewale Adesokan is a Legal Practitioner registered to practice Law in the roll at the Supreme Court, not Adewale Adesokan.”

I am of the solemn view that the person who signed the Notice of Appeal herein is known to Law. The name of the person directly below the signature is “DR. M. E. EDTRU” which name is very far and high above M. E. EDIRU & CO. Signature of

anyone of the four persons listed as the Counsel to Appellants would make the Notice of Appeal valid.

The Appellants are not caught in the shackles of decisions of Apex Court even though it makes assurance double sure when indication or ticking is made by the side of the signatory for purposes of knowing which of the Legal Practitioners named as Lawyers to Appellants signs the Legal Process. The failure to indicate or tick the name of Signatory in this appeal cannot vitiate the Notice of Appeal.

After all the 1st Respondent openly acknowledged that the names on the Notice of Appeal are all Legal Practitioners. The 1st Respondent cannot eat his cake and have it. The thunder in their objection against the validity of the Notice of Appeal herein brings no lightening. It is an exercise in crass technicality which this Court will not yield to.

In the result the Objection of lst Respondent to the hearing of the Appeal herein is hereby dismissed with N50,000.00 (Fifty Thousand Naira) in favour of Appellants.

NOW TO THE MERIT OF THE APPEAL
The appellant raised Objection to the 1st Respondent’s brief of Argument as being incompetent and having

been filed out of time. The learned Senior Counsel to the Appellant J. S. Okutepa SAN however with commendable candour conceded he did not file his 1’t Respondents brief on time and by virtue of the authority of OKECHUWKU VS. INEC (2014) L7 NWLR (PT. 1436) 255 at 284 – 286 he has no brief before the Court. He however argued that notwithstanding that, this Court should still consider whether the Appellants have even made out any case to enable them win the appeal.

It is also observed that the 2nd Respondent did not file Brief of Argument. The fact that a Respondent has not reacted to the Appellant’s Brief of Argument will not pso facto imply that the Appeal will be sustained without more. See UNITY BANK PLC & ANOR. V. MR. EDWARD BOUARI (2OO8) 2 SCM 93 at 21I – 2L2 per OGBUAGU JSC who said:
“in a Line of decided authorities, it has been said that failure of a Respondent to file a Reply Brief is immaterial, This is because, an Appellant will succeed on the strength of his case, But a Respondent will be deemed to have admitted the truth of everything stated in the Appellant’s Brief in so far as such is borne out by the Records. in other words, it is

not automatic. An Appellant must succeed or fail on his own Brief. See the cases of John Holt Venture Ltd. v. Oputa (1996) g NWLR (Pt 47O) 7Ol C. A.; Onvejekwe v. The Nigeria Police Council 1996 T MLR Pt 463 7O4 (A).”

This appeal will be considered on the issues formulated by the Appellants but since the said issues are interwoven or intertwined, I will take them together. The issues have earlier herein in this Judgment been set out.

ISSUES 1, 2, 3, 4, 5 and 6
The Learned Counsel to the Appellant DR. M. E. EDIRU argued under Issue 1 which is tied to grounds 3 and 14 that since Exhibit P. L4 Form EC8A (1) has been declared null and void by both the Tribunal and the 3rdd Respondent the Exhibit did not exist in Law and therefore the learned Lower Tribunal erred in Law in holding that the burden was on the Appellants to call a witness at least who registered in Polling Unit LGEA Primary School Polling Unit, Code 003 to testify that he was a registered voter in that Unit and that voting did not take place. He relied on the case of CHIEF GREAT OGBORU & ANOR. VS. DR. EMMANUEL E. UDUAGHAN & ORS. (2011) 2 NWLR (PART L232) 538 at 595 B – C. That

Exhibits P. 12 and 13 relied upon along with Exhibit P. L4 by trial Tribunal are not what the learned Counsel described as constitutive acts required to prove that election took place in the disputed Unit hence the Tribunal improperly shifted onus on the appellants to prove that election did not take place in the disputed Polling Unit.

Under Issue 2 the learned Counsel to the Appellants evaluated the Legal Status of Exhibit P. 14 (FORM ECBA (1) and the propriety of reliance placed on it by the Tribunal. He drew attention to page 439 of the record where the Lower Tribunal said the result of the Polling Booth was rightly declared null and void and yet made shocking findings that Exhibits P. L2, P. 13 and P. 14 prima facie showed that election actually took place in the Unit in contention. The Learned Counsel to appellants considered the findings of the Lower Tribunal as a contradiction and a grave error. He relied on the cases of:
1. LABOUR PARTY V. INEC (2009) 6 NWLR (Pt. 1137) 315.
2. OYENEYIN V. AKINKUGBE (2010) 4 NWLR (pT. 1194) 265 at 285 D-F.

Again under Issue 3 the learned Counsel to the Appellants contended that the nullified Exhibit

P. 14 FORM ECSA (1) cannot form the basis for determining whether or not to order fresh election by the Tribunal and the interpretation it placed on Paragraph 40(i), of Exhibit P. 11. That the Lower Tribunal was also in the wrong when it held that the situation in Exhibit P. 14 is contemplated in Section 53 (2) of the Electoral Act 2010 as amended. That Tribunal was wrong when it held that Paragraph 40 (1) of Exhibit P. 11 does not apply to the petition. He adopted his submissions under Issue 2. That the crucial findings made by the Lower Tribunal are perverse. He relied on the case of ANEKWE V. NWEKE (2OL4) 34 WRN 3O at 57.

Under Issue 4 DR. M. E. EDURI for the Appellants argued that the Lower Tribunal was in error when it held that what it would do depended on the ground and reliefs in the petition since according to him the results in Exhibit P. L4 was not collated into Exhibit P. 10. That what the Tribunal ought to have done was to examine the provisions of applicable Laws as to whether to order fresh election in Unit Code 903. He relied on the case of IGE FELIX OYEBISI V. HON. TIJANI TUNDE SULEIMA & ORS. (2008) LPELR – 4288 (CA) to content that

the Lower Tribunal was in error when it refused to order fresh election in respect of disputed unit.

Arguing Issue 5, the Appellants learned Counsel found fault with the finding of the trial Tribunal that Petitioners evidence and major reliefs he claimed are not in tandem with the grounds of the Petition as they point to an election that was invalid by reasons of corrupt practices or non compliance with the provisions of the Electoral Act.

The grouse of the learned Counsel is that the Lower Tribunal had ruled in favour of Appellants upon an application by one of the Respondents challenging the validity of the Petition. And that this Court had on 3Ll7l20L5 affirmed the Tribunal’s Ruling dismissing the preliminary Objection. He relied on pages 441 – 442 of the record. That the Tribunal was wrong in relying on OSHIOMOLE V. AIRIHIANVBERE (2013) NWLR (pt. 1353) 376. According to him the implication of Paragraph 40 (1) of Exhibit P. 11 and 53 (2) on nullification of election due to over voting are the same and that they need not plead over voting before they could urge the Court to order fresh election. He relied on the case of AGOMUO V. OGWUEGBU (1999) 4

NWLR (Pt. 599) 405 at 414.

The submission of the Appellants learned Counsel under Issue 6 is that the Lower Tribunal did not properly apply the cases of Labour Party v. INEC and KAKIH V. PDP to Appellants Petition. That the Lower Tribunal had powers under the Electoral Act to make consequential orders that will give effect to its findings and declaration without undue technicality. That the Tribunal ought to have relied on the case of Labour Party to order fresh election. He also relied on the case of AMAECHI V. INEC & ORS. (2008) 10 WRNI. To the Appellants even if they did not pray for another election the moment the Tribunal found that the election was not held or was held and the result declared null and void according to Appellants Counsel, the Tribunal was under a duty to order a fresh election. That the Tribunal also wrongly relied on the case of KAKIH V. PDP. In the end Dr. M. E. Ediru submitted that “the resolution of Issue 1″ in favour of the Appellants in the instant case will prove that no election was held in the LGEA PRIMARY SCHOOL POLLING UNIT.

Responding to the above submissions the learned Counsel to the 3rd Respondents drew

attention to Paragraph 14, 15, 16, 17, 18 and 19 of Appellants pleading. He also made reference to Paragraph 20 of appellants pleading wherein they pleaded that there was no voting in the unit in issue. The learned Counsel stated that the Respondents were firm and resolute that election held at LGEA Primary School Unit in Lambaga/Arikpa Ward but that the result was replete with over voting hence it was not collated into form ECSB (1) and was declared null and void. He relied on the evidence of RW3. He submitted that the Tribunal appreciated the principle of burden of proof. That the arguments of Appellant was based on wrong misconception about the position of pleadings. That the case of OGBORU V. UDUAGHAN relied heavily upon by Appellants does not support their contention. That the Respondents pleaded all necessary documents which were admitted as Exhibits P. 12, P. 13 and P. 14 before the Tribunal. That pleadings of parties to this matter joined issues on all that were pleaded by Appellants. That the onus was on Appellants to proof their case. He relied on the cases of:
1. NWOBODO V. ONOH (2OO7) 3 ERR 180 at 231 D – H.
2. SABIYA VS. TUKUR (1983)

l1SC 1O9 and
3. AGAGU vS. MIRUKO (2009) 7 NWLR (PART 1140) 342 at 408 among the Legion of cases cited.

That what Appellants are claiming are declaration relief and that onus rested on them to proof it relying on:
1. PHILIPS VS. EHA ODAN COMM & IND CO. LTD. (2012) ALL FWLR (PT. 650) 1254 at 1271 – 1272 A – B per MUKTHAR JSC and
2. CPC V. INEC & ORS. (2011) 12 SC (Pt.V) 😯 at 91 – 92.

On Issue 2, I. M. DIKKO Esq. referred to the Lower Tribunal on page 432 of the record wherein the Lower Tribunal relied on Exhibits P. t2, P. 13 and P. 14 to find that election took place in the disputed Poling Unit. The learned counsel to 3rd Respondent strongly submitted that the finding was supported by the evidence. That the cases of LABOUR PARTY VS. INEC (2009) 6 NWLR (Pt. 1137) 315 and others cited are unhelpful to the Appellants.

Making his submissions under Issues 3 and 4 I. M. DIKKO submitted that ascription of weight to evidence of witnesses is the sole prerogative of the Trial Court relying on AGBI v. OGBEH (2005) ALL FWLR (PT. 329) 941 at 968 C – E. That contrary to the submissions of Appellants on Exh. P. 11 Para 40 (1) of INEC

Approved Guidelines and Regulations for the conduct of 2015 General Election and Section 53 (2) of the Electoral act 2010 as Amended which they claim Lower Court improperly interpreted, I. M. KIKKO Esq. stated that Exh. P. 11 and Section 53 (2) made a clear distinction between over voting during election and over voting which renders election void that in the other situation where election did not hold for reason of natural disaster or emergencies such as violence and snatching of poll documents it will lead to cancellation. That the Tribunal was right in holding that the sole ground upon which the petition was based was that Appellants alleged 1st Respondent was not elected by majority of Lawful Votes cast at the election of 2Bl3l20L5 and so according to him Tribunal was right in his Judgment. He urged this Court to rely on OSHIOMOLE Vs. AIRHIAVBERE (2013) 7 NWLR (PART 1353) 376 to hold that the Appellants cannot be allowed to move away from the sole ground of his Petition to now contend that there should be fresh election in unit 003.

On Issue 5 as to whether it was competent for the trial Tribunal to revisit issue of competency of the ground in the

Petition when the Lower Tribunal gave its Judgment, I. M. DIKKO said there is a difference between what was decided on 10/6/2015 by the Tribunal and their Judgment wherein the Tribunal drew a distinction with the consideration of the evidence led by the Appellants which was at variance with the grounds of the Petition. He relied on page 443 of the record. That the Tribunal did not give Judgment in the matter previously that is on 10/6/2015 but only gave final Judgment on 3/9/2015.

On Issue six (6) as to whether the Tribunal properly applied the cases of LABOUR PARTY V. INEC Supra and KAKIH VS. PDP Supra to the Appellants Petition, I. M. DIKKO Esq. conceded that at Tribunal or any Court can grant a consequential order but that such order must give effect to the Judgment and the reliefs sought or established and must not detract from the principal relief or claim. That the consequential order must be directly traceable to or flowing from the order duly prayed for. He in the end urged this Court to dismiss the appeal.

I must say that the Appellant’s Reply Brief is a rehash of the main Brief of the Appellants.

Now before a Court or Tribunal arrives

at a decision in a matter the parties are under a bounden duty to call believable evidence oral or documentary or both of them to support and proof the facts contained in their pleadings. Thereafter the Court will assess and evaluate the pieces of evidence led and the materials in form of Exhibits placed before the Court or Tribunal considered along with the relevant submissions of their learned Counsel. The learned trial Court or Tribunal will then place the case of the parties on an imaginary scale in order to determine where the pendulum swings and party to believe. See ALIYU BALOGUN VS. ALHAII SHITTU LABIRAN (1988) 3 NWLR (PART 80) 66 at 84 per OPUTA, JSC of blessed memory.

Where as in this case that the Appellants are contending that the findings of the Lower Tribunal is perverse they have a duty to show that the decision is not borne out of the evidence on record or guided by settled principles. See OZONMA (BARR) CHIDI NOBLS – ELENDU VS. INEC & ORS. (2015) 6 SCM 117 at 134 1 per DATTIJO MUHAMMAD JSC who said:
‘A decision is said to be perverse if it does not draw from the evidence on record and or where the Court wrongly apply legal principles

to correctly ascertained fact and by so doing occasion injustice. See Queen v. Ogodo (7967) 2 SC 366 Mogaji v. Odofin (1978) 4 SC 97 and Ebba w Ogodo (1984) I SCNLR 372.”
Thus an Appellant who sets out to have the decision of a Lower Court or Tribunal displaced or set aside must prove or establish one or more of the following:
1. That the trial Judge or the Tribunal failed to make proper use of opportunity of seeing, hearing and observing the witnesses.
2. That the trial Court or Tribunal failed to exercise its discretion properly or judicially.
3. That the Court or Tribunal drew wrong conclusion from the accepted evidence or erroneous view thereon.
4. That the findings or evaluation of oral and documentary evidence are perverse.
See (1) NEWMAN OLODO & ORS. VS. CHIEF BURTON M. JOSIAH & ORS. (2010) 12 SCM 157 at 182 A – B per ADEKEYE JSC.
(2) MARKUS NATTNA GUNDTRT & ANOR. VS. REAR ADMTRAL M. H. NYAKO (2014) 2 NWLR (PART 1391) 211 at z4O A – C per OGUNBIYI, JSC.

An Appellate Court will not lightly or take pleasure in setting aside the findings of fact based on evidence of witnesses who testified before the

Lower Court or Tribunal.
See DR. SOGA OGUNDALU VS. CHIEF A. E. O. MAC JOB (2015) 3 SCM 113 at L24 B – D per RHODES – VIVOUR JSC who said:
“It is the duty of the Trial Judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and ascription of probative value to such evidence are the primary functions of the trial Court This is so since that Court saw heard and watched the demeanor of the witnesses when they gave evidence. Consequently where this is done the Appeal Court should always be reluctant to differ from the trial Judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an Appellate Court can re-evaluate evidence furthermore, evaluation of a document is not within the exclusive preserve of the trial Court A trial Court and an Appellate Court have equal rights in evaluation of documentary evidence.”

I have earlier on set out the reliefs sought in the Petition. It is

also here relevant to state ground of the Petition which is that:
“The 1st Respondent was not elected by majority of Lawful vote cast at the election of 28th March, 2015.-
The Appellants pleaded in Paragraph 20 and 24 of their Petition thus:
“2O. The Petitioner’s avers that no election result was issued in respect of LGEA Primary School Polling Unit of Lambaga/Arikpa Ward nor was any result forwarded to the ward collation center and entered into FORM EC8 C (1) EC 8 C (1) EC 8 D (1) and EC 8 E (1).
24. The Petitioners aver that the failure of the 3rd Respondent to conduct election or issued result at LGEA Primary School Polling Unit in Lambaga/Arikpa Ward in compliance with the Law and electoral guidelines constitute an irregularities in the conduct of the Alasarawa North Senatorial District Election and amounted to substantial noncompliance with the provision of Electoral Law 2O1O and non compliance affects the result of the senatorial election,”

The Petitioners gave particulars which among others are that the registered voters disenfranchised were 692 and the difference in votes or scores between 1st Appellant and 1st Respondent was

451. The Petitioners called two witnesses namely EGGON UMARU ILIYA and the 1st Petitioner. The evidence of PW. 1 was reviewed on pages 396 – 397. It is interesting to note from the Judgment on page 397 of the record that PW. 1 testified under cross examination thus:
“Undercross-examination, PW. 1 stated that he knows Usaini Jatau and that he was a Polling Agent of their party at LGEA primary School, He said that he will be surprised to know that Usaini Jatau signed the result of LGEA Arikpa Polling Unit He stated that he does not know of any Unit called LGEA Arikpa – PB but that what he knows is LGEA Primary School,”

The Appellants Learned Counsel did not quarrel with the correctness of the evidence of PW. 1 as summarized by the Lower Tribunal. The Appellants also did not deem it fit to include or ensure the inclusion of evidence of PW. 1 into the record of appeal. Parties as well as this Appellate Court are bound by the record as complied by the Appellants or on their behalf. Then came the evidence of 1st Petitioner/Appellant as PW. 2 on 27/6/2015.
?
On page 373 of the record under cross examination of 1st Appellant by Learned Counsel to 1st

Respondent the following emerged.
“Question: For that Code OO3 your party agent was Usaini Jatau.
Answer: Yes,
Question: EGGON UMARU ILIYA was not your agent for that Polling Unit.
Answer: He was not
Question: He was not a registered voter in that polling Unit Code OO3.
Answer: Yes,”
Exhibits P. 12 (Incident Report Form) and Exhibit P. 13 (Card Reader Information) were tendered through the 1st Appellant without objection from A. U. Idris Learned Counsel for the Petitioners now Appellants. See page 375 of the record. The 1st Appellant agreed under further Cross Examination that as per Exhibit P. 12, 70 people were manually accredited and that before Exhibit P. 12 was resorted to, 362 voters were already accredited for Code 003. Still on Exhibit P. 13 under Cross Examination by 1st Respondent’s Learned Senior Counsel, 1st Appellant agreed that item 127 on Exhibit P. 13 is LGEA – PB.

Under Cross Examination by John Matthew Esq. Learned Counsel to 2nd Respondent, Exhibit P. 14 which was the result of election for LGEA Arikpa – PB Code 003 was received in evidence as Exhibit P. 14.
?
Under Further Cross Examination in by

Learned Counsel to 2nd Respondent, 1st Appellant as ls Petitioner and PW. 2 answered thus:
“Question: Look at Exhibit P. 14. It is the result of that Polling Unit Code OO3 signed by Your agent
Answer: I saw my agent’s signature.”

On page 378 of the record the learned Counsel to the Appellants at the trial A. U. Iadris closed the Petitioners Case in this Petition.

Can it then be said that the Petitioners now Appellants established their case as postulated on the pleadings? This question will be answered by first stating the onus on a Petitioner or Petitioners in Election Petition Matter. It is trite Law that where election including Senatorial Election are conducted and the Returning Officer of Independent National Electoral Commissioned announces the result of the election and returns a candidate as winner of the election in accordance with Section 68 (c) of the Electoral Act 2010 as amended the result is final subject to review by Election petition Tribunal or Court established by the Constitution and Electoral Act to hear and determine such election petition. The Law is also settled that there is presumption of regularity in favour of the

result declared or return made by INEC (Independent National Electoral Commission).
The burden is therefore on the person or candidate who denies the correctness and authenticity of the result to rebut the presumption of regularity statutorily conferred on the return or the result of such election. See:
1. CHIEF NWOBODO V. CHIEF ONOH (1984) 1 SC 1 at 52 – 53.
2. CHIEF AKIN OMOBORIOWO VS. CHIEF MICHAEL AIASIN (1984) 1 SC 2OG at 277 – 228 per BELLO JSC later CJN of blessed memory.
3. CHIEF A. O. OKE & ANOR. VS. DR. R. O. MIMIKO & ANORS. (2014) 1 NWLR (PART 1388) 332 at 367 B – H to 368 A – H per PETER ODILI, JSC.
4. MARKUS NATINA GUNDIRI & ANOR. VS. REAR ADIMRAL M. H. NYAKO & ORS. (2014) 2 NWLR (PART 1391) 211 at 244 C – D per OGUNBIYI JSC who said:
“It is also relevant to mention that the burden of proof was on the appellants as petitioners to prove their petition- They are therefore under a duty if they must succeed to prove their case with all available evidence they could find. It is intriguing, I hold that the Polling Agents of the appellant, although they were themselves appointed specifically to witness the

election and are recognized under the Electoral Act were not however called as witnesses. At least there is not evidence of such on the record.”
On page 246 C – D. his Lordship continues:
“I also hasten to add that as a ward supervisor such person is a competent witness under the Evidence Act; the issue in this case however is the failure to distinguish the clear cut evidence between information which it within personal knowledge as against the information given him by the Polling Agent who ought to have been called as a witness, but was not Where a petitioner complains of noncompliance with the provisions of the Electoral Act he has a duty to prove the noncompliance alleged based on Polling Unit by Polling Unit ”

The paucity and negligible evidence of PW. 1 and PW. 2 in this Petition on appeal cannot by any stretch of any imagination give victory to the Appellants. Their evidence (PW. 1 and PW. 2) are not within their personal knowledge concerning events or what happened at the LGEA Primary School Code 003 Polling Unit which is central to the Petitioners/Appellant’s Petition. What is also significant in the evidence of both the PW. 1 and PW. 2

is the Unity in the pieces of evidence given that:
1. PW. 1 Eggon Umaru Iliya was not the Agent for that all important Polling Unit Code 003.
2. USAINI JATAU was the Appellants Agent for Unit Code 003 which is key to Appellants’ Case.

This agent who ought to have given vital evidence and perhaps help Petitioners/Appellant to prove the petition was not called. Not only that there is also fatal error of judgment on the part of Appellants as they failed to call any Registered Voter for the Polling Unit in contention to give evidence of being a registered voter in that Unit and was unable to cast his vote on the day of election due to the failure of INEC to hold election in the Unit or for any other reasonable or plausible reasons.

The learned Tribunal below was therefore perfectly and eminently right and justified in applying the decision of the Apex Court in the Land, that is TERVER KAKIH VS. PDP & OR.S. (2014) 15 NWLR (PART 1430) 374 at 419 G – H per GALADIMA JSC who said:
“He made non-voting or misconduct(t or nonconduct of election the pivot of his case. It behoves on him to call at least one disenfranchised voter from each of the

polling booths or units or stations in the affected constituency or district/area as witness to testify in support of this allegation. See Audu VS. INEC No. 2 (2070) 73 NWLR pt 1272/ 456 @ 523; Chime Vs. Onyia (2OO9) 2 NWLR pt. 1724 7; AYogu Vs. Nnamani (2006) 77 NWLR pt. 987, 760.”

More importantly and more devastating for the case of the Appellants is the disastrous admission by the 1s Appellant who under cross-examination by learned Counsel for the 2nd Respondent, fatally admitted that the signature of his Agent for the aforesaid unit/polling booth code 003, which the Appellant claimed there was no voting exercise, was/is on the Exhibit P. 14 that was cancelled justifiably by INEC. This messy admission cut the foundation out of the Appellants/Petition. No wonder the agent was not called, knowing full well that he cannot turn round to deny his signature, if he was someone guided by conscience. See Gundiri vs. Nyako Supra pg. 245 H to 246 A – B per Ogunbiyi JSC.

It is also very interesting that the learned Counsel to the Appellant did not in his Appellants brief mention how the Petitioners proved their petition and through which witness or

document.

I have no doubt in my mind that the Lower Tribunal cannot be faulted on all the findings made in its Judgment. They are all supported by the oral and documentary evidence on the record. Their interpretation of Paragraph 40 (i) of Exhibit P. 11, the INEC Manual for Election Officials 2015 vis-a-vis Section 53 of the Electoral Act is also in order.

I will therefore resolve all the six issues raised for consideration in this appeal against the Appellants and same are hereby accordingly resolved against the Appellants in favour of the Respondents.

In the result, the Appellants appeal is wholly unmeritorious and the Appellants appeal is hereby dismissed. The Judgment of the Lower Tribunal delivered on the 3’d day of September 2015 reaffirming the return of the Hon. Philip Aruna Gyunka of the Peoples Democratic Party as the duly elected Senator representing Nasarawa North Senatorial District of Nasarawa State In the Senate of the Federal Republic of Nigeria is hereby affirmed. Parties are to bear their respective costs in this appeal.

MONICA BOLNA’AN DONGBAN – MENSAM, J.C.A.: I agree.

HUSSEIN MUKHTAR, J.C.A.: I agree.

Appearances:

DR. M. E. EDIRU with him, JOHN OVYE, Esq. and S. N. YUSUFFor Appellant(s)

J. S. OKUTEPA (SAN) with him, JOHN MATTHEW Esq., MRS. A. C. UCHIN, EDE UKO Esq., D. M. TSEVENDE Esq., S. U. AKOH Esq., N. I. ANIEKWE Esq., OJONIMI S. APEH Esq., MRS. D. C. OLANREWAJU, MISS. J. E. ADAH and S. T. AKOHOL Esq. for 1st Respondent

I. M. DIKKO Esq., with him, D. N. MESHI Esq. and I. I. ASEKI Esq. for 3rd RespondentFor Respondent(s)

Appearances

DR. M. E. EDIRU with him, JOHN OVYE, Esq. and S. N. YUSUFFor Appellant

AND

I. M. DIKKO Esq., with him, D. N. MESHI Esq. and I. I. ASEKI Esq. for 3rd RespondentFor Respondent