SULEIMAN ASONYA ADOKWE & ANOR v. ALMAKURA UMAR TANKO & ORS (2019)

SULEIMAN ASONYA ADOKWE & ANOR v. ALMAKURA UMAR TANKO & ORS

(2019)LCN/13818(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of October, 2019

CA/MK/EP/SEN/31/2019

RATIO

HEARSAY EVIDENCE: EVIDENCE ON CONTENT OF DOCUMENTS OR CIRCUMSTANCES UNDER WHICH A DOCUMENT WAS MADE, MADE BY A PERSON WHO WASN’T THE MAKER IS HEARSAY
It is also trite that the evidence on the contents of documents or circumstances under which such documents were made by a person who was not their maker or present when the documents were made will be hearsay.
It is immaterial that the documents are public documents or certified true copies of public documents as a distinction must be drawn between the admissibility of a document and the weight to be attached to it. In Buhari v Obasanjo supra. INEC results for polling units described as authentic were tendered as exhibits. Uwais, CJN, noted at page 177 that the makers thereof did not testify and at page 182, stated that;
The documents the witness tendered were not in the absence of evidence of their maker, reliable. This trend has been followed in a deluge of cases decided by the Supreme Court. Some of the cases include Buhari v INEC (2008) 18 NWLR (Pt. 1120) 246, 391-392, Belgore v Ahmed (2013) 8 NWLR (Pt. 1355) 66, 100, Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 453, 522, Okereke v Umahi (2016) 11 NWLR (Pt. 1524) 483, 472 and Udom v Umana (NO1) (2016) 12 NWLR (Pt. 1526) 129, 243-244. PER JOSEPH EYO EKANEM, J.C.A.

THE EVIDENCE REQUIRED IN ELECTION PETITIONS
The position of the Tribunal has the support of the Supreme Court in Andrew v INEC (2018) 9 NWLR (Pt. 1625) 507, 557 where Okoro, JSC, opined that;
As was rightly in my opinion submitted by Chief Wole Olanipekan SAN, in an election matter such as in the instant case, the evidence required is not the one which was picked up from perusing documents made by others. Otherwise, anyone with basic comprehension/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify to how the entries in the documents were arrived at.PER JOSEPH EYO EKANEM, J.C.A.

JUSTICES:

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. SULEIMAN ASONYA ADOKWE
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)

AND

1. ALMAKURA UMAR TANKO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the National and State Houses of Assembly Election Petition Tribunal, holden in Lafia, Nasarawa State delivered on 30/9/2019 in Petition No. EPT/NSHA/NS/SEN/5/2019. In the judgment, the Tribunal dismissed the petition of the appellants against the election and return of the 1st respondent as the winner of the election held on 23/2/2019 for the seat of the Nasarawa South Senatorial District.

The facts forming the background of this appeal may be summarised as follows:
On 23/2/2019, the 3rd respondent conducted election to the National Assembly throughout the Federation of Nigeria. In Nasarawa State, the 1st appellant, sponsored by the 2nd appellant, contested for the seat of the Nasarawa South Senatorial District against 19 other candidates including the 1st respondent who was sponsored by the 2nd respondent. At the end of the exercise, the 3rd respondent declared and returned the 1st respondent as the winner of the election, having scored 113, 156 votes.
The 1st appellant was the runner up with 104, 595 votes.

Dissatisfied with the turn of events, the appellants filed a petition against the return at the Tribunal. The grounds upon which the petition was based are that;
(1) The 1st and 2nd respondents were not duly elected by majority of lawful votes cast at the election.
(2) The non collation, rejection of lawful votes, wrong collations and similar acts of the 3rd respondent substantially affected the final results of the election.
The appellants therefore sought the following reliefs:
(a) A declaration that the 1st Respondent was not validly elected or returned under the platform of the 2nd Respondent, having not scored majority of valid votes cast at the Nasarawa South Senatorial elections held on the 23rd February, 2019.
(b) A declaration that the Petitioners scored the majority of valid votes cast at the Nasarawa South Senatorial elections held on the 23rd February, 2019.
(c) A declaration that 1st Petitioner, SENATOR SULEMAN ASONYA ADOKWE is the duly elected Senator of Nasarawa South Senatorial District having scored the highest number of valid votes cast at the Nasarawa South Senatorial elections held on the 23rd February, 2019.

(d) That the 1st Petitioner, SENATOR SULEMAN ASSONYA ADOKWE, sponsored by the 2nd Petitioner, be declared validly elected or returned having polled the highest number of valid votes cast at the 2019 election for the Senatorial seat in the Nasarawa South Senatorial District held on 23rd February, 2019.

The respondents filed their replies to the petition.

After pre hearing session, the petition proceeded to trial. The appellants called 4 witnesses, viz; PW1, PW2, PW3 and PW4 and tendered a total of 140 exhibits, Viz; Exhibits P1 , P46. The 1st respondent called 3 witnesses and tendered Exhibits D1- D50. The 2nd respondent called one witness while the 3rd respondent did not call any witness.

At the close of evidence, parties filed and exchanged addresses. It is noteworthy that in his final address, appellants counsel honourably and commendably made some concessions including that;
(i) The allegations in 3 polling units, viz; Kofar Sarki Polling Unit, Jangwa School Polling Unit and Mamkpe Polling Unit were not proved;
(ii) The evidence of PW1 and PW2 was inconsistent;
(iii) The PW3 admitted in cross

examination that Exhibit P4J, Form EC60E for Mamkpe polling unit was unsigned and not stamped;
(iv) The case of the appellants was therefore on:
(a) Exclusion of results of 81 polling units; and
(b) Reduction and inflation of scores in the course of collation in 10 instances.

The Tribunal in its judgment at page 757 of the record held as follows:
From the concessions and admissions the petitioners have admitted that the evidence of the petitioners in respect of Sofar Sarki polling unit, Jangwa Primary School Polling Unit and Mamkpe Polling Unit ought to be discountenanced by the Court for inconsistencies in the testimonies of the witnesses namely PW1, PW2 and PW3. Having conceded that evidence of PW1 PW3 have failed for inconsistency and unreliable, the implication is that the Court is left with the evidence of PW4 one Ayiwulu Baba Ayiwulu.

The Tribunal thereafter considered the evidence before it (less the evidence of PW1, PW2 and PW3) as well as the addresses of counsel, and as earlier stated dismissed the petition of the appellants for being without merit.

Aggrieved by the decision, the

appellants filed a notice of appeal to this Court which incorporates 17 grounds of appeal.
Pursuant to the rules of this Court, the appellants filed:
(i) Appellants brief of argument on 4/10/2019;
(ii) A reply brief to 1st respondents brief of argument, filed on 11/10/2019;
(iii) A reply brief to 2nd respondents brief of argument, filed on 11/10/2019; and
(iv) Reply brief to 3rd respondents brief of argument, filed on 11/10/2019.

The 1st respondent filed a respondents brief of argument on 9/10/2019.
The 2nd respondent filed its brief of argument on 8/10/2019.
The 3rd respondent filed its brief of argument on 9/10/2019.

At the hearing of the appeal on 15/10/2019, Israel Usman, Esq., for the appellants adopted and relied on the briefs of argument filed on behalf of the appellants in urging the court to allow the appeal.

Chief Wole Olanipekun (SAN), for the 1st respondent adopted and relied on the 1st respondents brief of argument in urging the Court to dismiss the appeal.

Dr. Hassan Liman (SAN) for the 2nd respondent adopted and relied on the 2nd respondents brief

of argument in urging the Court to dismiss the appeal.

Ishaka M. Dikko (SAN) for the 3rd respondent similarly adopted the 3rd respondents brief of argument in also urging the court to dismiss the appeal.

In the appellants brief of argument, the following issues are distilled from the 17 grounds of appeal:
(1) Whether or not Respondents joined issues on the complaints by the petitioners on exclusion of results and improper collations that resulted in inflation and deflation of votes. (Ground 2).
(2) Whether or not a petitioner who does not challenge the results declared at polling units is under an obligation to still call witnesses from the polling units, when there is no allegation of wrongdoing at the polling units. (Ground 11).
(3) Whether or not an agent of a political party who inspected the result and collation sheets in his possession can testify on his personal inspection of the results declared and issued by INEC, which results are deemed by law to be authentic and were not being challenged in terms of content and scores. (Ground 1).
(4) Whether or not the petitioners complaints of inflation and

reduction of votes during collation were criminal in nature and were not proved. (Ground 3).
(5) Whether the Tribunal was right to hold that there was over voting on the basis of Form EC 40G and that the burden was on the petitioners to prove that there was no over voting. (Ground 5 and 12).
(6) Whether or not the statement in the petitioners Final Address stating that the petitioners are not challenging the results in the specific polling units mentioned in the petition can be interpreted to mean that the petitioners are not challenging the final results declared by INEC. (Ground 4).
(7) Whether from the state of the pleadings, the Tribunal was right to have placed the burden of proving the elections were free and fair on the Appellants. (Ground 6).
(8) Considering the failure of the Respondents to join issues, presumption of genuineness of results and the reference by PW4 to paragraphs of his witness statement, the cross examination of PW4 on the documents, the reference by the Respondents witnesses to the documents tendered by the petitioners, whether or not the results and collation sheets can still be said to have

been dumped on the Tribunal. (Ground 14).
(9) Having regard to the oral and documentary evidence led by petitioners on exclusion of results declared as well as inflation and reduction of votes, and having regard to the failure of the Respondents to explain same, whether or not the petitioners proved their case. (Ground 7, 8, 9, 10, 13, 15, 16 and 17).”

In the 1st respondents brief of argument, the following issues have been formulated for the determination of the appeal:
1. Having regard to the facts, circumstances of the case and the evidence led, whether the Tribunal was right in coming to the conclusion that the appellants woefully failed to lead credible evidence in proof of their various allegations of non-compliance with the provisions of the Electoral Law and other allegations of crime in the Petition. (Grounds 3, 4, 6, 8, 9 and 10).
2. Having regard to the state of pleadings and the evidence led by the Respondents. Whether the Respondent did not join issues on the complaints of inflation and deflation of votes by the Petitioners. (Ground 2).
3. From the totality of evidence led, particularly the forms EC40Gs

tendered before it, whether the lower Tribunal was not right in holding that results in certain polling units were rightly cancelled in the Nasarawa South Senatorial Election held on the 23rd February, 2019. (Grounds 5 and 12).
4. Whether the trial Tribunal was right when it found to be hearsay evidence the testimony and evidence of PW4 who was neither a Polling Unit nor Ward Agent. (Grounds 1, 11, 13, 15 and 17).
5. Whether the Tribunal was not right in holding that the Petitioners/Appellants merely dumped the documents on the Tribunal without tying them to the case of the Petitioner/Appellants. (Ground 7 and 14).
6. Whether the trial Tribunal was not right when it held that the election that produced the 1st Respondent as the winner was conducted in substantial compliance with the provision of the Electoral Act. (Ground 16).

In the 2nd respondents brief of argument, the following issues are presented for the determination of the appeal:
1. Whether the Learned Justices of the Trial Tribunal were not right in law when they held that the Appellants dumped documents on the Tribunal (Ground 14).
2. Whether in the

circumstances of the evidence led, the Trial Tribunal was not right when it dismissed the Appellants petition for their failure to prove the allegations as contained in the petition. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16 and 17).
3. Whether having regards to the evidence led, the Trial Tribunal was not right in law when it held that the election held on 23rd February, 2019 into the Nasarawa South Senatorial District was conducted in substantial compliance with the Electoral Act. (Ground 15).

One issue is formulated in the 3rd respondents brief of argument, viz;
1. Whether the Honourable Trial Tribunal rightly dismissed the petition of the Petitioners/Appellants in view of the evidence placed before it by Parties, viz a viz the entire circumstances of the petition at the Tribunal.

Before looking into the issues formulated by counsel for the parties, I shall pause here to state that the 1st respondent filed a motion on notice on 9/10/2019, seeking for the following reliefs:
1. AN ORDER OF THIS HONOURABLE COURT striking out/dismissing the instant appeal for being grossly unmeritorious.

FURTHER AND/OR IN THE ALTERNATIVE TO PRAYER 1 ABOVE.
2. AN ORDER OF THIS HONOURABLE COURT striking out grounds 1, 2, 8, 9, 10, 13 and 15 of the appellants Notice of Appeal dated and filed on 18th September, 2019, as well as any issues for determination distilled therefrom.
3. AND FOR SUCH FURTHER ORDER or Other Orders as this Honourable Tribunal (sic) may deem fit to make in the circumstances of this appeal.

The motion is supported by a 7 paragraph affidavit deposed to by Adelani Ajibade, a legal Practitioner in the law firm representing the 1st respondent.

Before the hearing of the appeal, senior counsel for the 1st respondent sought for and was granted leave to move the motion. He referred to his arguments thereon contained in pages 5 – 7, paragraphs 4.0 – 5.3 of the 1st respondents brief of argument, as well as his reply to the appellants reply filed on 14/10/2019. He urged the Court to sustain the objection.

Counsel for the appellants, in response, referred to his reply brief at pages 1 – 8. He adopted the same in urging the Court to strike out or dismiss the motion.

It is the submission of 1st respondents senior counsel that grounds 1, 2, 8, 9, 10, 13 and 15 of the grounds of appeal are incompetent. The summary of the incompetence is as follows:
(i) that grounds 1, 2 and 15 have particulars that do not relate to them;
(ii) that grounds 2 and 13 do not attack the ratio of the decision on appeal;
(iii) that grounds 8, 9 and 10 are bereft of particulars.

Relying on Order 7 Rule 2(3) of the Court of Appeal Rules, 2016, senior counsel urged the Court to strike out grounds 1, 2, 8, 9, 10, 13 and 15 of the notice of appeal along with the issues distilled therefrom. The Court was ultimately prayed to strike out the notice of appeal and, by extension, the appeal.
Counsel for the appellants in his response argued as follows:
(i) that the Court lacks the power to grant the motion as it seeks to terminate the appeal for being unmeritorious at the preliminary stage;
(ii) that the affidavit in support of the motion contains statement of law and not facts contrary to the Evidence Act, 2011.
(iii) that grounds 1, 2 and 15 of the notice of appeal have particulars that

flow from them;
(iv) that grounds 2 and 13 attack the ratio of the decision on appeal;
(v) that the particulars of grounds 8, 9 and 10 are incorporated in the grounds themselves and so they do not require separate particulars.

In the 1st respondents reply brief to the appellants reply, it is submitted as follows:
(i) that the alternative relief in the motion shows an attack on some grounds of appeal thus giving a quietus to the contention that the motion seeks to strike out the appeal (on the merit).
(ii) that the contention of appellants counsel on the supporting affidavit being in breach of the Evidence Act is vague or alternatively only the offensive paragraphs of the affidavit can be struck out and not the entire affidavit.

The remainder of the reply is but an embellishment of the arguments in the 1st respondents brief on the incompetence of the identified grounds of appeal.
Order 6 Rule 1 of the Court of Appeal Rules, 2016 provides that:
Every application to the Court shall be by notice of motion supported by affidavit and shall state the Rule under which it is brought and the ground

for the relief sought.
It is therefore clear that every motion in the Court of Appeal must be supported by an affidavit. If a motion is not supported by an affidavit, the motion itself is incompetent and is liable to be struck out.
The affidavit contemplated by the above provision must comply with the provisions of Section 115(1) and (2) of the Evidence Act, 2011, which states:
(1) Every affidavit used in the Court shall contain only a statement of facts and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true
(2) An affidavit shall not contain extraneous matters, by way of objection, prayer or legal argument or conclusion.
Any paragraph of an affidavit that runs foul of the above quoted provisions is liable to be struck out even if deposed to by a legal practitioner. See Banque de L’Afrique Occidentale v Sharfadi (1962) NNLR 21, 22 , 23, Josien Holdings Ltd V Lornamead Ltd (1995) 1 SCNJ 133, 144 and Citizen International Bank Ltd V SCOA Nigeria Ltd (2006) 8 NWLR (Pt. 1011) 322, 354 , 355.
Paragraphs 5 and 6 of

the affidavit in support of the motion are as follows:
5. I know as a fact that:
(vi) Ground 1, 2 and 15 of the Appellants Notice of Appeal are at variance with the respective particulars and liable to be struck out by this Honourable Court.
(vii) Grounds 2 and 13 of the appellants Notice of Appeal do not arise from the judgment of the lower Tribunal and are liable to be struck out by this Honourable Court.
(viii) Grounds 8, 9 and 10 of the appellants Notice of Appeal have no valid particulars in support thereof and are liable to be struck out by this Honourable Court.
(ix) All the grounds of appeal in the appellants Notice of Appeal are unwieldly, argumentative and repetitive contrary to Order 7 Rule 2(3) & 3 of the Court of Appeal Rules, 2016.
(x) The instant appeal is academic.
6. It is in the interest of justice to strike out the said issues and ground one from which it is distilled, or the paragraphs highlighted in (v) supra.
The depositions are certainly not statements of facts and circumstances; rather they constitute objections, prayers, legal arguments and conclusions

contrary to Section 115(1) and (2) of the Evidence Act, 2011. They are therefore liable to be struck out and I accordingly strike them out. The remainder of the affidavit, viz; paragraphs 1, 2, 3, 4 and 7 are merely introductory and formal aspects of the affidavit. They are incapable of sustaining the affidavit and supporting the motion. The result is that the motion has no affidavit or viable affidavit to support it contrary to Order 6 Rule 1 of the Court of Appeal Rules, 2016. The motion therefore comes to a stuttering halt and I accordingly strike it out.

I now return to the appeal. It seems to me that the complaints of the appellants centre around the Tribunals treatment of the evidence proffered before it and to some extent pleadings of the parties. Consequently, it is my view that the lone issue formulated by 3rd respondents counsel will be sufficient to determine the appeal. The issue encompasses all the issues formulated by the other counsel in this appeal. I shall therefore adopt it with slight modification as follows:
Whether or not the Tribunal was right in dismissing the petition of the appellants.

Appellants counsel stated that the petition claimed undue return, it claimed the seat (for 1st appellant) and provided facts and figures, but the 1st respondent who was purported to have won did not give contrary scores or figures of over voting and facts thereof as claimed by him nor did they file a list of objections to votes. This, he said, plagued the pleading of the other respondents. He referred to Paragraphs 12(2) and 15 of the 1st Schedule to the Electoral Act, 2010 (as amended) and submitted that the effect is that;
(a) there is no dispute that elections held in polling units;
(b) there is no dispute as to the scores of the candidates as contained in the petition; and
(c) the respondent cannot lead evidence to challenge the petition.

On that score, he submitted that the petition was not defended by the respondents and therefore the appeal ought to be allowed. He placed reliance on Agagu v Mimiko (2009) 7 NWLR (Pt. 1140) 342, 414, 415.

Counsel expressed his disagreement with the Tribunals position that the appellants needed to call polling unit agents. This, he said, is because the need to call eye

witnesses of events in a polling unit arises where a petitioner predicates his case on illegality or unlawfulness of the votes cast at the polling units. He placed reliance on Abubakar V Yar’Adua (2008) 19 NWLR (Pt. 1120) 1, 173 and Madumere V Nwosu (2009) LPELR 12706 (CA). He emphasized that documentary hearsay does not apply where a witness is not trying to prove a document and where he was not the maker of the document, but his duty was evaluating it. He posited that where original copies of documents have been certified, they need not be tendered through their maker.

Counsel referred to the evidence of PW4, the 2nd appellants Constituency Collation Agent. Referring to Section 126 of the Evidence Act, 2011, he posited that PW4s evidence was based on his personal inspection of the electoral materials he saw and had in his possession, and that the Tribunal erred in holding that the evidence of PW4 and the exhibits were hearsay. He contended that the Tribunal was rightly positioned to undertake the collation of the results of the polling units that were excluded without recourse to the evidence of polling unit agents. It was

his further contention that the case of the appellants had no criminal connotation. He emphasized the point that the appellants challenged the collation at ward level and not the results at the polling units, and that it was wrong for the Tribunal to hold that the appellants could be understood to mean that they did not challenge the final result.

Continuing, counsel argued that contrary to the position of the Tribunal, the burden was on the respondents to prove their allegation of cancellation of results of some polling units for reasons of over voting and irregularities. This, he stated, is because there is a presumption of correctness of the results as announced by the Presiding Officer.

It was his submission that the Tribunal erred in holding that the appellants dumped documents on it. He noted that the PW4 adopted his depositions and went through the documents in Court to confirm that they relate to his statement, narrating and demonstrating the result sheets and how they were excluded or how the figures were reduced or inflated, polling unit by polling unit, ward by ward etc. In the alternative, he argued that even if the documents can

be said to have been dumped, the respondents by their cross examination of the PW4 demonstrated them in Court.

He contended that it was common ground that elections were conducted and the results turned in in the affected polling units but they were not collated. It was his further contention that the respondents who sought to justify the non collation had the onus to prove the reasons for the non collation. He submitted that the trial Court, contrary to its earlier position that only persons who make documents can tender them, relied on the evidence of DW1 in respect of Exhibits D15- D24 to conclude that over voting was proved. He noted that the DW1 admitted that he was not present in any of the polling units where results were cancelled. Again, he observed that only a Presiding Officer has power to cancel the result of an election in a polling unit for over voting and yet no Presiding Officer was invited to testify as a witness.

For the 1st respondent, it was submitted by senior counsel that the appellants had the burden of establishing their entitlement to the reliefs sought by them by a preponderance

of evidence. It was further submitted that the reliefs being declaratory, the appellants could only have succeeded on the strength of their case and not on the weakness of the defence. He contended that the appellants failed in this regard. Senior counsel stated that out of the 53 wards in the 5 Local Governments of Nasarawa South Senatorial District appellants called 4 witnesses with only the evidence of PW4 (the Senatorial Constituency Agent of 2nd appellant) left to be examined. He set out some excerpts of the judgment of the Tribunal and contended that the decision of the tribunal was unassailable.

Senior counsel referred to paragraphs 13 – 34 of the 1st respondents reply and submitted that issues were joined in respect of inflation or deflation of votes. Referring to Paragraphs 12(2) and 15 of the 1st Schedule to the Electoral Act, 2010 (as amended) he stated that the 1st respondent highlighted facts and figures in the reply. He noted that the appellants did not call any witnesses to testify that elections were properly held in the polling units in which results were cancelled by INEC. He referred to form EC40G series tendered in

evidence which were filled by the respective Ward Collation Officers of the 3rd respondent which he said evidenced the cancellation of results in the respective wards. He also referred to Exhibits D15 – D24 and D31 – D47 (voters register of the affected units) as well as the evidence of DW1 and PW4 and submitted that a careful perusal of both exhibits would reveal over-voting.

Continuing, Senior counsel stated that the evidence of PW4 was hear-say and therefore inadmissible as he was not a polling unit agent. He added that the PW4 failed to link or tie any of the documents that were tendered from the Bar to the appellants case and as such the Tribunal could not have made use of any of those documents.

In conclusion, senior counsel noted that the appellants failed to appeal against the decision of the Tribunal striking out the ground of the petition alleging non compliance. With this state of affairs, senior counsel contended that there remained no ground upon which a claim for non-compliance could be grounded; but the entire claim was predicted on non-compliance. It was submitted that based

on Abubakar v Yar’Adua (2008) 19 NWLR (Pt. 1120) 1, 73 a petitioner who contests the validity of an election on the ground of majority of lawful votes cast, contests the legality or lawfulness of votes cast in the election; that since the appellants admitted that they were not contesting any polling unit result, they had abandoned the only remaining ground in their petition. Thus, he concluded, in the unlikely event of the appeal or any issue being resolved in appellants favour, the appeal will be rendered academic by the ruling striking out the ground of non-compliance.

Counsel for the 2nd respondent submitted that the Tribunal was correct in holding that appellants dumped documents on it. This is especially so, he argued, as the PW4 lacked the competence to link them to any aspect of their case as he was not their maker. It was his further submission that the argument that there was no need to call polling unit agents is not the law since the appellants wanted the Tribunal to collate polling unit results. This, he said, is because polling unit agents would be the ones to identify the results and answer questions thereon. Again, he contended that since the

appellants complained of cancellation at the ward, it is the ward collation agent that ought to testify thereon and not the PW4 who did not witness entries or cancellation at the ward level.

Senior counsel for the 3rd respondent submitted that once the 3rd respondent makes a declaration after cancelling some results, the declaration enjoys a presumption of regularity unless proved otherwise by credible evidence by a petitioner. He further submitted that the appellants failed in that regard.

In his reply, appellants counsel contended that a traverse must be specific and direct. It was his further contention that the 1st respondents traverse was general and could not serve as joinder of issues (on inflation and deflation of votes). It was his argument that the presumption of genuineness of result applies to every result sheet and document produced by INEC.

Resolution
Before considering arguments on the burden of proof in this matter, I shall first treat the argument of counsel on the applicability of Paragraphs 12(2) and 15 of the 1st Schedule to the Electoral Act, (as amended) to this matter.

Paragraph 12 (2) states:
Where the respondent in an election petition, complaining of an undue return and claiming the seat or office for a Petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioner.
Paragraph 15 reads:
When a petitioner claims the seat alleging he had the highest number of valid votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.
Paragraph 12 (2) of the 1st Schedule is clear and unambiguous and must be given its ordinary meaning. It applies where there is a petition complaining of an undue return and which claims the seat or office for the petitioner. It requires that where the respondent intends to prove that the claim is incorrect or false, the respondent in his reply should set out the facts and figures clearly and

distinctly disproving the claim of the petitioner. In this instance, the appellants complained of undue return. They also claimed the seat for the 1st appellant. The respondents contended that the claim was incorrect or false. Did the respondent set out the facts and figures clearly and distinctly disproving the claim of the petitioner?
Again, paragraph 15 of the 1st Schedule is clear. It provides that where a petitioner claims the seat, alleging that he had the highest number of valid votes cast at the election, the respondent shall set out clearly in his reply the particulars of the votes, if any, which he objects to and the reasons for the objection, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed. If he fails to do so, the result tendered by the petitioner would be deemed unchallenged and unrebutted. See Agagu v Mimiko (2009) 7 NWLR (Pt. 1140) 32 and Onwudinjo v Dimobi (2005) LPELR – 7518 (CA) where it was held that paragraph 15 has not stated any particular form for the list of objections.
I have examined paragraphs 20.1.1. -20.9.9 of the petition which set out the particulars of the grounds

of the petition. I have also examined paragraphs 19-84 of the 1st respondents reply. They set out the facts and figures relied upon by the 1st respondent to disprove the claims of the appellants. In particular paragraphs 82 to 84 set out clearly and distinctly the particulars of the votes objected to (see pages 168 to 172 of the record of appeal). Paragraph 87 of the said reply sets out the documents by which the 1st respondent intended to prove the same.
It will perhaps be helpful to set out paragraph 82 and the opening sentence/part of the tabulation in paragraph 83 of the said reply. It is as follows:
82. The respondent, pursuant to paragraph 15 of the First Schedule to the Electoral Act, 2010 (as amended), hereby strongly objects to votes credited to the petitioners in the said election at various polling units in Obi, Doma, Lafia and Awe Local Government Areas of Nasarawa State, and shall contend that the petitioners are not entitled to the votes in the said polling units as set out below;
83. Particulars of votes objected to are:
LGA NAME WARD NAME WARD CODE POLLING STATION LOCATION/NAME PU CODE APC PDP REASONS

FOR OBJECTION
OBI TUDUN ADABU 04 AKPEKA PRI.
SCHOOL 008 37 215
The total number of accredited voters exceeds the total number of registered voters. etc.
It is therefore my view that the 1st respondent met the requirements of Paragraphs 12 (2) and 15 of the 1st Schedule to the Electoral Act, 2010 (as amended).

Now, as earlier stated, at the end of the election, the 3rd respondent declared and returned the 1st respondent as the winner of the election, he having scored 113, 156 votes as against the 1st appellants 104, 595 votes. In the case of Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1, 223, Ejiwunmi, JSC, quoted with approval the dictum of the Supreme Court in Omoboriowo v Ajasin (1984) 1 SCNLR 1, 122 as follows;
Now as I stated in Nwobodo v Onoh (supra), there is in law a rebuttable presumption that the result of an election declared by the Returning Officer is correct and authentic by virtue of Sections 115, 148 (c) and 149 (1) of the Evidence Act and the burden is on the person who denied the correctness and authenticity of the return to rebut the presumption. Where such denial is based on a mere complaint

that the petitioner scored a majority of lawful votes the rebuttal needs only to be proved within the balance of probability. See also Buhari v INEC (2008) 19 NWLR (Pt. 1120) 246.
It needs be mentioned that where the petitioner leads sufficient rebuttal evidence, the burden shifts to the person defending the return to lead evidence to show that the evidence of the petitioner could not on the preponderance of evidence result in the Court giving judgment for the petitioner. See Buhari v Obasanjo supra 122.
The appellants claimed declaratory reliefs and were therefore obliged to prove their entitlement thereto by the strength of their evidence and not the weakness of the defence or even on admission. See Bello v Eweka (1981) 1 SC 101, CPC v INEC (2011) 18 NWLR (Pt.1279) 279 and Nyesom v Peterside (2016) 7 NWLR (Pt.1512) 452.
The appellants did not challenge the conduct of election in any of the polling units in the constituency. Their contention was two fold;
(i) that the results of 81 polling units were excluded in the course of collation of results at the ward level; and
(ii) that in 10 instances, results from the polling

units were inflated or reduced in the course of collation at the ward level.
The respondents denied non-collation or exclusion of results (except in polling units in which they said results were cancelled) and inflation or deflation of figures. Issues were thus joined in that regard. The appellants called 4 witnesses out of which 3 witnesses were conceded by the appellants to be unreliable. The appellants were therefore left with the evidence of one witness, viz; the PW4 to prove their case. The PW4 was the Constituency Collation Agent of the 2nd appellant (described as District Collation Agent in his deposition). He testified in-chief that in that capacity he collated and analysed all election materials and forms used for the election; that he refused to sign the final result sheet. The polling unit results of different polling units in Obi, Keana and Doma Local Government Areas were tendered through him as exhibits P30-P43.
In cross-examination, at page 697 of the record as well as pages 15 and 16 of the supplementary record of appeal, he stated:
There were polling agents across all the polling units My evidence is based

on my analysis of the collation and my findings from the documents before the 3rd Respondent. There were wards and local government collation agents across the local governments that made up Nasarawa South Senatorial District.
The contention of the appellants, it needs be repeated, was that results from 81 polling units in form EC8A (1) series were excluded in the ward summary (Form EC8B (1)). Form EC8A (1) series were tendered through PW4 as Exhibits P30 to P43. There were from various polling units. Since issues were joined as to exclusion of those results and inflation or deflation of figures and they were tendered in bulk, it was necessary to link those exhibits to their relevant polling units as the beginning point of proof of the allegations. PW4 who was not their maker was not in a position to do so. The Tribunal could not have engaged in linking the documents to the relevant polling units, document by document and polling unit by polling unit. That ought to have been done by calling the polling unit agents to do so as they were privy to the making of the documents. The PW4 was a stranger to those documents. See Duriminiya v COP (1961) NNLR

70, Ucha v Elechi (2012) 13 NWLR (Pt.1317) 330, Andrew v INEC (2018) 9 NWLR (Pt. 1625) 507, 558 -559 and APGA v Al-Makura (2016) 5 NWLR (Pt. 1505) 316, 345 where Nweze, JSC, after reviewing several authorities on this point, opined that;
In other words, it is the duty of the party to relate each document to the specific area of his case for which the document was tendered.
A further challenge that the appellants faced was in respect of results collated at the Registration Area/Ward Collation Centre, Form EC8B (1). The case of the appellants, it needs be re-stated, was that at that level, in adding up or collating polling unit results or votes (Form EC8A (1) ) to arrive at the ward summary, the 3rd respondent excluded results from 81 polling units and either reduced or inflated scores in 10 instances in form EC8B (1) the ward summary. The various forms EC8B (1) were on 25/5/2019 tendered from the Bar as Exhibits P4 (A), P4(F), P5(B), P5(P), P10, P12, P14, P17, P19(A), P20(A), P21(A), P22(A), P23(A), P24(A) and P25(A). At page 694 of the record it is recorded that,
PW4 identifies all the Exhibits from P1

P46 respectively.
Since the alleged exclusion and inflation/deflation of figures were said to have occurred in the process of collation at the ward level, in other words, at the ward collation centre, it was necessary for the appellants to call as witness their ward collation agent of the relevant ward who was present when the exclusion was done or the wrong entries were made to identify and testify on the ward summary Form EC8B(1). The Pw4 testified in cross-examination that there were ward and local government collation agents across the Local Government that make up the Constituency. The PW4 who testified in-chief that votes announced by the returning officer were the product of deliberate wrong entries and non-entry, exclusion or non-collation of votes was not a ward collation agent and his evidence as to what occurred at that level was hearsay. The documents identified by him were consequently unreliable since he was not their maker nor privy to their making. InAbdulmalik v Tijani (2012) 12 NWLR (Pt. 1315) 461, 474, Bada, JCA, held that;
There is evidence in the record of appeal that the 1st

appellant did not take part in the collation of results at the polling station or at the ward level. And under cross-examination the 1st appellant who happened to be the sole witness of the appellants admitted that he was represented at the elections by his agents. It follows therefore that his assertion that the cancellations were made dishonestly with a view to favour the 1st respondent was hearsay.
It is also trite that the evidence on the contents of documents or circumstances under which such documents were made by a person who was not their maker or present when the documents were made will be hearsay.
It is immaterial that the documents are public documents or certified true copies of public documents as a distinction must be drawn between the admissibility of a document and the weight to be attached to it. In Buhari v Obasanjo supra. INEC results for polling units described as authentic were tendered as exhibits. Uwais, CJN, noted at page 177 that the makers thereof did not testify and at page 182, stated that;
The documents the witness tendered were not in the absence of evidence of their maker, reliable.

This trend has been followed in a deluge of cases decided by the Supreme Court. Some of the cases include Buhari v INEC (2008) 18 NWLR (Pt. 1120) 246, 391-392, Belgore v Ahmed (2013) 8 NWLR (Pt. 1355) 66, 100, Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 453, 522, Okereke v Umahi (2016) 11 NWLR (Pt. 1524) 483, 472 and Udom v Umana (NO1) (2016) 12 NWLR (Pt. 1526) 129, 243-244.
The Pw4 in his deposition paragraph 26 testified that;
Based on my analyses of the forms and material used by the 3rd respondent, the votes announced by the 3rd respondents Senatorial District Returning Officer, as shown above, were not a true reflection of the candidates scores
In cross-examination at pages 15 and 16 of the supplementary record, he stated that;
My evidence is based on my analysis of the collation and my findings from the documents before the 3rd respondent.
In other words, the evidence of the PW4 as to wrong entries, and exclusion of polling unit results in form EC8B(1) was based on his perusal of the relevant forms. This was not good enough to rebut the presumption of regularity and correctness of the

final result. The Tribunal therefore correctly held at page 762 of the record that;
The PW4 cannot legitimately analyse any of the result sheets that he did not know how they were made or entered in the circumstances of such entry.
The position of the Tribunal has the support of the Supreme Court in Andrew v INEC (2018) 9 NWLR (Pt. 1625) 507, 557 where Okoro, JSC, opined that;
As was rightly in my opinion submitted by Chief Wole Olanipekan SAN, in an election matter such as in the instant case, the evidence required is not the one which was picked up from perusing documents made by others. Otherwise, anyone with basic comprehension/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify to how the entries in the documents were arrived at.
It was submitted by appellants counsel that the respondents by their cross-examination of PW4 had debunked the contention that the documents were dumped on the Tribunal. It is my view that since the PW4 was not the

maker of the documents over which he was cross-examined, his evidence thereon, whether in-chief or in cross-examination, was of no value.
It is therefore clear that the appellants did not give rebuttal or sufficient rebuttal evidence to discharge the onus of proof on them to displace the presumption of correctness and authenticity of the final result declared by INEC. The burden of proof did not therefore shift to the respondents. There was therefore no need for the Tribunal nor is there any need for this Court to consider the case of the respondents. In the light of all that, I have stated thus far, I enter an affirmative answer to the lone issue for determination and resolve it against the appellants.

I therefore come to the conclusion that the appeal is devoid of merit. I accordingly dismiss the same with costs ofN200,000.00 in favour of the 1st and 2nd respondents against the appellants.

JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother, Ekanem, JCA and I agree entirely with him that this Appeal lacks merit and should be dismissed.
The Appellant’s main grouse with the

conduct of the election was that the results of 81 polling units were excluded in the course of the collation of the results; and that in 10 instances, the results from the polling units were inflated or reduced in the course of collation at the ward level. The Appellants called four witnesses to establish these allegations at the Tribunal. Of these witnesses, the Appellants readily conceded to the unreliability of the evidence of three, even at the Tribunal, and so their evidence was rightly discountenanced.
The sole remaining witness was PW4, the Constituency Collation Agent through whom the results of polling units in Obi, Keana and Doma Local Government Areas were tendered. In an attempt to substantiate the allegations of exclusion of results and inflation or reduction of votes, he testified that he collated and analysed all the election materials and forms used in the election at the Constituency level. This he did in his capacity as the Constituency Collation Agent of the 2nd Appellant. No pretence is made of the fact that the documents tendered through this witness were not demonstrated as they were tendered in bulk and admitted into evidence as

such. No witness was called to speak to the documents, to link them to the various polling units at the base of the pyramid from which they emanated. Even the ward collation agents, who received the results from the polling units’ agents and witnessed their collation at their various wards, were not invited to testify. PW4 was not the maker of these documents and so he was limited in scope with regard to the nature of evidence he could legally give in respect of the results in the various electoral forms, i.e. Forms EC8A (1) and EC8B (1). I agree with the lead Judgment that this was certainly evidence which amounted to hearsay.
Notwithstanding this, PW4 testified that he arrived at his conclusions that the results of 81 polling units were excluded and that there were instances of inflation or reduction of votes from an analysis of the results forms. Just as was held by the Supreme Court in Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507, 557, this is unacceptable, as practically anyone can be brought off the street who had nothing the do with the election, to carry out an analysis of a bunch of documents handed over to him and come to the same or different

conclusions. The law requires much more than that. Only eyewitnesses to the making of the documents, i.e. who witnessed when the entries complained of were entered and computed, are qualified and can testify to how the entries made in the documents were arrived at.
To make matters worse, PW4 was the last remaining witness of the Appellants left Standing. Thus, where his evidence in proof of the allegations was found to constitute largely hearsay, the case of the Appellants at the Tribunal was bound to come to a screeching halt. Based on this, I am satisfied that the Tribunal came to a right decision based on the quality of the evidence placed before it. Indeed, the case of the Appellants was plagued by a by a paucity of evidence and suffered from credibility issues.

Consequently, for this and for the more detailed reasons contained in the lead Judgment, I find the Appeal bereft of merit. It fails and is dismissed. I abide by the order as to costs made therein.

ONYEKACHI AJA OTISI, J.C.A.: I had the opportunity to read, a draft copy of the lead Judgment by my learned Brother, Joseph E. Ekanem, JCA, in which this appeal has

been dismissed. I am in agreement with the reasoning and conclusions therein and hereby adopt same as mine. I will only make few comments in support.

Courts have emphasized in a number of judicial pronouncements that exhibits tendered in Court ought to be activated by evidence given by their makers and not merely dumped on the trial Tribunal. In Belgore v. Ahmed (2013) 8 NWLR (PT. 1355) 60 at 100, the Supreme Court, per Tabai JSC held as follows:
“With respect to the volume of documentary evidence, I wish to state at the risk of repetition that they were merely tendered across the Bar by learned counsel tor the petitioners at the trial. He did not and was, in fact, not in a position to answer questions or otherwise speak on any of them. Their makers Were not called. In such circumstances, was the Tribunal bound to ascribe probative value to them? I shall answer the question in the negative.
In Flash Fixed Odds Ltd v. Akatugba (2000) 9 NWLR (Pt 717) 46 at 63. the Court of Appeal re-emphasized the principle that the proper person to tender a document is its maker who alone can be cross examined on it; and that where a person who did not

make it tenders it, the Court ought not to attach probative value to it since the witness cannot be cross examined on it. See Gregory Okonkwo v. The State (1998) 8 (Pt. 561) 210 at 258. This principle applies with equal force in the case. The trial Tribunal had no duty to accord probative value to the mass of documents, their status as certified public documents notwithstanding.” (Emphasis mine)
Admissibility and probative value to be attached on a document are two different issues. A document that is admissible may not be accorded probative value if it has not been tendered by its maker who could be cross examined on its contents; Buhari v INEC (2008) LPELR- 814(SC); Nyesom v. Peterside Ors (2016) LPELR-40036(SC). Therefore, notwithstanding the fact that a document is admissible, it cannot simply be dumped on the trial Tribunal without its evidential value being demonstrated by its maker.

For this reason and for the fuller reasons given by my Leaarned Brother, I also find this appeal unmeritorious and hereby dismiss same. I abide by the orders in the lead Judgment, including the order as to costs.

Appearances:

Israel Usman, Esq.
For Appellant(s)

Chief Wole Olanipekun, SAN with him, Adebayo Adelodun (SAN), Helen Usenekong, Dr. M. T. Adekilekun, Shareef Mohammed, Esq. and Mayowa Ajileye, Esq. for 1st Respondent.

Dr. Hassan M. Liman, SAN with him, Messrs Matthew Burkaa, H. A. Ibrahim, I. I. Aseku and E. P. Akushonye for 2nd Respondent.

Ishaka M. Dikko, SAN with him, Messrs E. C. Agoh and U.K. Obioha for Respondent For Respondent(s)

Appearances

Israel Usman, Esq. For Appellant

AND

Chief Wole Olanipekun, SAN with him, Adebayo Adelodun (SAN), Helen Usenekong, Dr. M. T. Adekilekun, Shareef Mohammed, Esq. and Mayowa Ajileye, Esq. for 1st Respondent.

Dr. Hassan M. Liman, SAN with him, Messrs Matthew Burkaa, H. A. Ibrahim, I. I. Aseku and E. P. Akushonye for 2nd Respondent.

Ishaka M. Dikko, SAN with him, Messrs E. C. Agoh and U.K. Obioha for Respondent For Respondent