HON.ROBERT AONDONA TYOUGH & ANOR v. BARR. BENJAMIN IOREMBER WAYO & ORS (2019)

HON.ROBERT AONDONA TYOUGH & ANOR v. BARR. BENJAMIN IOREMBER WAYO & ORS

(2019)LCN/13835(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2019

CA/MK/EP/HR/39/2019

RATIO

WHEN THE ISSUE OF NON-COMPLIANCE IS RAISED IN AN ELECTION PETITION

The issue of lawfulness or otherwise of a declaration and return cannot arise from a ground that only invites the Tribunal or Court to compare the scores of candidates as declared by the 3rd Cross-Respondent, relying on Nwobodo v. Onoh (1984) 1 SCNLR 1 at 34; Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1. It was argued that the issue for determination as distilled by the trial Tribunal was an incompetent issue as same was based on non-compliance with the law and not whether the 1st Cross-Appellant scored the majority of lawful votes cast at the election. The said issue had no ground in the petition to support it and was completely outside the purview of ground 2 of the petition. The trial Tribunal therefore acted without jurisdiction in formulating the said issue. It was further submitted that having determined the petition based on the incompetent issue as formulated, the judgment of the trial Tribunal was rendered incompetent. Further, that the said judgment did not determine in any way the issues in controversy between the parties before it as presented under ground 2 of the petition. It was submitted that the issue formulated by the trial Tribunal did not cover the entire election. It was based only on the lawfulness or otherwise of the declaration and return made by the 3rd Respondent. Where a ground of petition is not challenging the entire election but only an aspect of it, such a ground is incompetent, relying: Oyetola v. Adeleke (2019) LPELR-47529(CA), particularly at pages 76 and 78. PER ONYEKACHI AJA OTISI, J.C.A.

DUTY OF A TRIAL TRIBUNAL COURT WHERE THE ISSUE IS THAT THE WINNER DID NOT SCORE MAJORITY OF THE LAWFUL VOTES

The duty of the trial Tribunal where the outcome of an election was challenged on the ground that the winner of the election did not score the majority of lawful votes, was to determine who scored majority of lawful votes cast at the election, between the 1st Cross- Appellant and the 1st Cross-Respondent by computing and collating the results presented, relying on the decision in Uduma v. Arunsi (2012) 7 NWLR (Pt. 1298) 55 at 118 -119, per Ogunwumiju, JCA. PER ONYEKACHI AJA OTISI, J.C.A.

THE MARGIN OF LEAD PRINCIPLE IN ELECTION PETITITON

The margin of lead principle provided in the Manual for Election Officials 2019 which uses the number of registered voters to determine whether a result should be declared in an election or not is therefore contrary to the provisions of the Electoral Act. Further, the provisions of Section 138(2) of the Electoral Act by which an election cannot be questioned on a ground of non-compliance with the Manual for Election Officials, was also relied on to submit that since the “margin of win” or “margin of lead” principle is a provision of the subsidiary legislation or directive of the 3rd Cross-Respondent, it cannot be used to challenge the outcome of an election, unless the alleged violation is also contrary to the Electoral Act itself. Reliance was placed on the decisions in Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; (2016) LPELR-40036(SC) p. 63; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; (2016) LPELR-40035(SC) pp. 36-38. PER ONYEKACHI AJA OTISI, J.C.A.

MAIN DUTY OF A COURT OF LAW
The goal of a Court of law is always to do all within its power to do justice in any matter submitted to it for adjudication. Issues arising for determination of a matter must be viewed in that light. It is therefore trite that an appellate Court possesses inherent power, in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties. The Court may adopt the Issues as framed by the respondent where such issue(s) formulated by respondent is or are more succinct, accurate and apt to the dispute than those formulated by the appellant, unless doing so would lead to injustice or prejudice to the appellant; Ikuforiji v. Federal Republic of Nigeria (2018) LPELR-43884(SC) 3. The trial Court, which has this same goal of acting in the interest of justice, may exercise the same power to formulate or reformulate issue or issues that are germane to the determination of a matter before it. PER ONYEKACHI AJA OTISI, J.C.A.

WHEN THE APPELLATE COURT CANNOT INTERFERE IN THE DISCRETION OF THE TRIAL COURT

Except these issues are shown to be prejudicial to one of the parties, the appellate Court will not interfere. In Nwana v FCDA (2004) LPELR-21029 (SC), the Supreme Court, per Tobi, JSC said:
A party who complains about the formulation of issues or issues by the Court must say what injustice has been done to him by such formulation. In the absence of such evidence, an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue must result in miscarriage of justice for this Court to intervene in favour of the appellant. PER ONYEKACHI AJA OTISI, J.C.A.

ELECTION PETITION: WHERE THE ISSUE FOR DETERMINATION SHOULD BE DISTILLED FROM

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. HON. ROBERT AONDONA TYOUGH
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. BARR. BENJAMIN IOREMBER WAYO
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The 1st Cross Appellant was declared winner of the election for the House of Representatives, representing Kwande/Ushongo Federal Constituency, which was conducted by the 3rd Cross-Respondent on 23/2/2019. The 1st Cross-Appellant contested the election on the platform of the 2nd Cross-Appellant. The 1st Cross-Respondent who was sponsored by the 2nd Cross-Respondent also took part in the election. The 3rd Cross-Respondent declared and returned the 1st Cross-Appellant elected with 34, 439 votes to beat the 1st Cross-Respondent who polled a total of 24, 306 votes.

Dissatisfied with the outcome of the election, the 1st and 2nd Cross-Respondents as Petitioners filed a Petition challenging the election and return of the 1st Cross Appellant at the National and State House Assembly Election Petition Tribunal, sitting at Makurdi, Coram Hon. Justice R. O. Odugu, J.; Hon. Justice M. A. Onyetenu, J., and Esther Tata, C/M., (the trial Tribunal). The petition was filed on two grounds:
(1) That the election and or return of the 1st respondent Tyough Robert Aondona was invalid by reason

of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019.
(2) That the 1st Respondent, Tyough Robert Aondona was not duly elected by majority of lawful votes cast at the Kwande/Ushongo Federal Constituency Election held on the 23rd February, 2019.

The trial Tribunal upon the objection of the 1st and 2nd Cross Appellants, struck out ground 1 and dismissed the petition of the 1st and 2nd Cross Respondents as lacking in merit. Aggrieved by the decision of the trial Tribunal which went against them, the 1st and 2nd Cross Respondents filed an appeal. The Cross Appellants, who were also dissatisfied with aspects of the judgment, lodged the instant cross appeal by Notice of Cross Appeal filed on 29/9/2019 on twenty-two grounds of appeal.

The complaint of the Cross Appellants on aspects of the judgment can be summarized as follows: The trial Tribunal upheld one of the objections of the 2nd Cross Appellant and struck out ground 1 of the petition, leaving ground 2. But the trial tribunal proceeded to formulate an issue for determination based on ground 1 that had been

struck out but relied on the same set of facts that were pleaded in support of ground 1. The trial Tribunal also examined result sheets that had been tendered from the Bar but not admitted in evidence. In addition to the detailed examination of the documents, the trial Tribunal found that the allegations of over-voting in 4 polling units had been established through the unchallenged oral testimonies of PW8, PW9, PW10 and PW16.

The parties filed Briefs of Argument. At the hearing of the appeal on 25/10/2019, T.D. Pepe., Esq., with E.O. Agena, Esq., adopted the 1st and 2nd Cross Appellants? Brief filed on 14/10/2019, and, the 1st and 2nd Cross Appellants? Reply Brief to the 1st and 2nd Cross Respondents? Brief filed on 23/10/2019. G.T, Yongo, Esq., with S.A. Akpehe, Esq., and T. Nzughul, Esq., adopted the 1st and 2nd Cross Respondents? Brief filed on 18/10/2019, in which a Preliminary Objection was also argued. He also urged the Court to dismiss the appeal with costs. For the 3rd Cross Respondent, O.P. Ogar, Esq., who held the brief of D.E. Okoro, Esq., filed no process.

The 1st and 2nd Cross Respondents? Preliminary Objection, which the Cross Appellants responded to in their Reply Brief, shall first be considered and resolved.

Preliminary Objection
The 1st – 2nd Cross ? Respondents? Preliminary Objection to the hearing of the cross appeal was on the following grounds:
(a) That the Cross – Appeal is without record, and therefore incurably defective.
(b) That even if the Cross – Appellants are allowed or granted leave to use the Compiled record in Appeal No. CA/MK/EP/HR/29/2019 Barr. Benjamin Iorember Wayo & 1 Or Vs. Hon. Robert Aondona Tyough & Ors, the time allowed for the filing of their Cross-Appellants brief of argument has elapsed, having filed their Notice of Cross- Appeal on the 29th September, 2019 after the service of the record of appeal on them on the 25th and 26th day of September, 2019 respectively.
(c) The Appeal No. CA/MK/EP/HR/29/2019 and Appeal No. CA/MK/EP/HR/39/2019 are two separate and distinct Appeals.

The 1st and 2nd Cross Respondents had argued the Preliminary Objection in their brief of Argument, to which the Cross Appellants responded in the Reply Brief. However, before the Preliminary

objection was taken, the Court, upon the application of the Cross Appellants, on 25/10/2019, granted them leave to rely on the Record of Appeal compiled and transmitted in Appeal No. CA/MK/EP/HR/29/2019: Barr. Benjamin Iorember Wayo & 1 Or v. Hon. Robert Aondona Tyough & Ors. for the purpose of hearing and determining the instant appeal. The Court also granted an order deeming the processes filed by the Cross Appellants in the instant appeal using the Record of Appeal compiled and transmitted in Appeal No. CA/MK/EP/HR/29/2019: Barr. Benjamin Iorember Wayo & 1 Or v. Hon. Robert Aondona Tyough & Ors., as properly filed and served. In this light, the Preliminary Objection of the 1st and 2nd Cross Respondents has been overtaken.

Substantive Appeal
Out of twenty-two grounds of appeal, the Cross Appellants distilled eleven Issues for determination as follows:
1. Whether the judgment of the Tribunal and the issue formulated therein were competent? (Distilled from Grounds 11 and 15).
2. Whether ground 2 of the petition was competent? (Distilled from Grounds 7 and 8)
3. Whether the Tribunal was not wrong in refusing or

failing to strike out alternative reliefs (b) to (k) flowing from ground 1 of the Petition after the Tribunal struck out the said ground for being incompetent? (Distilled from ground 4)
4. Whether the 1st and 2nd cross-respondents’ replies to the replies of the cross appellants and the 3rd cross-respondent to the petition were competent in view of the Tribunal’s holding that the petitioners increased the number of polling units they were challenging, in the said replies? (Distilled from Grounds 2, 3 and 6)
5. Whether the oral evidence of PW15 was hearsay evidence and whether the documentary evidence tendered through him amounted to documentary hearsay. (Distilled from Grounds 9 and 14)
6. Whether the Tribunal was right to have held that documents tendered from the bar by Appellants/Cross-Respondents were examined in open court by PW15. If the answer is in the negative, whether the said documents were merely dumped on the Tribunal? (Distilled from Grounds 10, 12, 13 and 17)
7. Whether the Tribunal was right in utilizing the ward result sheets to determine the issue of cancellation of results, when polling unit result sheets were not tendered in

respect of the affected polling units? (Distilled from ground 16)
8. Whether the Tribunal was justified in nullifying elections in 4 polling units on the basis of oral evidence by PW8, PW9, PW10 and PW16 and making reference to Exhibits PTE 33G, PTE 35G, and PTE 29E when none of the said witnesses had made reference to the said documents in their testimonies? (Distilled from ground 18)
9. Whether the Tribunal was right by including RCM Primary School Ihinda I as item 4 on the list of polling units where results were either cancelled or result not declared, when the petitioners had pleaded RCM Primary School Ihinda II as item 69 under paragraph 51 of the petition. (Distilled from Ground 19)
10. Whether the Tribunal was in error to have cancelled election in RCM Shinshima, Ushongo Market Square, Lobi Market Square and Tse Adum polling units on account of over-voting contrary to the pleadings in paragraphs 42, 44-50 of the petition. (Distilled from Ground 20)
11. Whether the Tribunal had rightly included the following polling units (1) RCM School, Mbagbegba I, School Premises, (2) RCM School Mbagbegba II, School Premises, and (3) RCM Ayev-Atoza,

among the polling units where elections had been cancelled, contrary to the pleadings. (Distilled from Grounds 21 and 22).

The 1st and 2nd Cross Respondents adopted the issues formulated by the Cross Appellants.

I note that the Cross-Appellants distilled no issues from grounds 1, 2, 3, 5, 6 and 15 of the grounds of the cross appeal. These grounds are deemed abandoned;Dada v Dosunmu (2006) LPELR-909 (SC); CPC v INEC (2011) LPELR-8257(SC); and, are hereby struck out. I shall adopt the issues as formulated by the Cross Appellants.

In my view, Issue 1 is foundational and must be resolved first.

Issue 1
The petition of the 1st and 2nd Cross Respondents before the trial Tribunal was based on two grounds:
(1) That the election and or return of the 1st respondent Tyough Robert Aondona was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019.
(2) That the 1st Respondent, Tyough Robert Aondona was not duly elected by majority of lawful votes cast at the Kwande/Ushongo Federal Constituency Election held on the 23rd February, 2019.

Upon objections raised by the Cross Appellants, the trial Tribunal struck out ground 1 for being incompetent but failed to strike out the paragraphs of the petition pleaded in support of the said ground 1 of the petition. The Cross Appellants contend that having struck out the said ground 1, the trial Tribunal ought to have struck out the pleadings in support of the said struck out ground 1 and the reliefs anchored thereon which were now hanging with nothing to stand on. These were the facts pleaded in paragraphs 36 – 64 of the petition, pages 21 – 29 of the Record (Vol. I). It was contended by the Cross Appellants that the trial tribunal, influenced by the said facts pleaded in support of ground 1 and evidence adduced thereon, formulated the issue for determination in the petition in this manner, page 1664 of the Record (Vol. II):
?Whether the 3rd Respondent’s declaration and return of the 1st Respondent as the winner of the Kwande/Ushongo Federal Constituency election which was held on the 23rd day of February 2019 and the return made on the 26th day of February, 2019 is unlawful and/or contrary to any of the provisions of the Electoral Act, 2010 as amended.

It was submitted that there was no nexus between the issue formulated by the trial Tribunal and the surviving ground 2 of the petition, which was on whether the 1st Cross-Appellant had scored majority of lawful votes cast or not. The issue of lawfulness or otherwise of a declaration and return cannot arise from a ground that only invites the Tribunal or Court to compare the scores of candidates as declared by the 3rd Cross-Respondent, relying on Nwobodo v. Onoh (1984) 1 SCNLR 1 at 34; Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1. It was argued that the issue for determination as distilled by the trial Tribunal was an incompetent issue as same was based on non-compliance with the law and not whether the 1st Cross-Appellant scored the majority of lawful votes cast at the election. The said issue had no ground in the petition to support it and was completely outside the purview of ground 2 of the petition. The trial Tribunal therefore acted without jurisdiction in formulating the said issue. It was further submitted that having determined the petition based on the incompetent issue as formulated, the judgment of the trial

Tribunal was rendered incompetent. Further, that the said judgment did not determine in any way the issues in controversy between the parties before it as presented under ground 2 of the petition. It was submitted that the issue formulated by the trial Tribunal did not cover the entire election. It was based only on the lawfulness or otherwise of the declaration and return made by the 3rd Respondent. Where a ground of petition is not challenging the entire election but only an aspect of it, such a ground is incompetent, relying: Oyetola v. Adeleke (2019) LPELR-47529(CA), particularly at pages 76 and 78.

By so formulating the issue, the trial Tribunal was misguided into considering issues that were extraneous and incompatible with ground 2 of the petition. The duty of the trial Tribunal where the outcome of an election was challenged on the ground that the winner of the election did not score the majority of lawful votes, was to determine who scored majority of lawful votes cast at the election, between the 1st Cross- Appellant and the 1st Cross-Respondent by computing and collating the results presented, relying on the decision in Uduma v. Arunsi (2012)

7 NWLR (Pt. 1298) 55 at 118 -119, per Ogunwumiju, JCA. Following from the incompetent issue, the trial Tribunal proceeded to invoke the margin of lead principle, which is a provision of the Manual for Election Officials 2019 and Guidelines for the Conduct of Election 2019, and used it to determine whether the election ought to be nullified, which was not the duty of the tribunal. Rather, where the winner of an election is identifiable from the majority of lawful votes cast, the result should be declared. Reliance was placed on the case of Bruce v. Ere (2004) LPELR-7378(CA) PP. 24-27. It was submitted that invoking the “margin of lead” principle as provided for under the Manual for Election Officials, 2019, is not in consonance with the provisions of Section 69(1) of the Electoral Act, 2010 (as amended). It was further argued that the phrases “votes cast for each candidate” and “valid votes cast at the election” found in Sections 69 and 140(3) of the Electoral Act imply that the outcome of an election cannot be determined by voters who chose not to participate in an election. The margin of lead principle provided in the Manual for Election Officials 2019 which

uses the number of registered voters to determine whether a result should be declared in an election or not is therefore contrary to the provisions of the Electoral Act. Further, the provisions of Section 138(2) of the Electoral Act by which an election cannot be questioned on a ground of non-compliance with the Manual for Election Officials, was also relied on to submit that since the “margin of win” or “margin of lead” principle is a provision of the subsidiary legislation or directive of the 3rd Cross-Respondent, it cannot be used to challenge the outcome of an election, unless the alleged violation is also contrary to the Electoral Act itself. Reliance was placed on the decisions in Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; (2016) LPELR-40036(SC) p. 63; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438; (2016) LPELR-40035(SC) pp. 36-38.

The margin of lead principle, on which the trial Tribunal based its judgment, is alien to the Electoral Act, particularly Section 69 thereof. The Court was urged to strike out the entire petition as incompetent, being based on this principle. The issue for determination formulated by the trial Tribunal which did

not arise from the surviving ground of the petition, was also incompetent and ought not to be allowed to stand. The Court was urged to resolve the issue in favour of the Cross-Appellants.

For the 1st and 2nd Cross Respondents, it was submitted that by the provisions of the First Schedule to the Electoral Act, 2010 (as amended), the trial Tribunal was not bound by the issues formulated by the parties for determination, but was at liberty to formulate issues, which can best determine the petition based on the evidence adduced before it. Reliance was also placed on Order 18 Rule 2 of the Federal High Court (Civil Procedure) Rules, 2019. It was submitted that the issue formulated by the trial Tribunal was not competent, as it was based on the state of pleadings and the evidence adduced before it. The decisions in Ogboro v. Registered Trustees of Lagos Polo Club & Anor (2016) LPELR – 40061 (CA); Abbas Abdullahi Michika v. Shehu Inuwa Imam & Ors. (2010) LPELR – 4449 (CA) were cited and relied on.
?
It was further submitted that the facts in support of ground 1 of the petition could also support ground 2, and were expressly adopted by the 1st and

2nd Cross – Respondents into ground 2 thereby providing it with a shield to survive, citing the case of Hope Democratic Party v. INEC & Ors. (2009) LPELR – 1375(SC). The issue as formulated by the trial Tribunal, dealt with the lawfulness or unlawfulness of the return made by the 3rd Cross – Respondent on 26/2/2019 in favour of the 1st Cross – Appellant. It was submitted that the decisions in Nwobodo v. Onoh (supra) and Oyetola v. Adeleke (supra), relied on by the Cross – Appellants were not applicable in this case as the 1st and 2nd Cross – Respondents sought to impugn the entire election. The 1st and 2nd Cross – Respondents alleged in their petition that votes were allotted, fraudulently to the Cross – Appellants, and that the 3rd Cross – Respondent in connivance with the Cross – Appellants refused to cancel elections results in the polling units where there were clear cases of over voting. Lawful votes must come from a lawful and clean election exercise, devoid of fraud, unlawful manipulations and breach of extant mandatory provisions of the law in the conduct of the election exercise. On what constitutes a lawful vote, the case of Ejiogu v. Irona

(2009) 4 NWLR (Pt. 1132) 51, per Garba, JCA, was cited and relied upon. It was submitted that the 1st and 2nd Cross – Respondents pleaded all the polling unit results, Forms EC8A(II), tendered the polling unit results, and the ward results Forms EC8B(II) and called witnesses to prove that the Cross – Appellants did not score majority of the votes cast at the said election, but that the votes said to have been scored by the Cross – Appellants were fraudulent votes. The case of Uduma v. Arunsi (2012) 7 NWLR (pt. 1298) 55 at 67 – 68, per Ogunwumiju JCA was cited and relied on. Therefore, the issue formulated by the trial Tribunal was not an incompetent issue and the consideration of the margin of win principle was also right and within the duties of the Tribunal. It was submitted that the claim of the 1st and 2nd Cross – Respondents that the 3rd Cross – Respondent wrongly declared the 1st Cross and Appellant as the winner of the election without taking into consideration the margin of win principle was not only a provision of the Manual for Election Officials 2019 and Guidelines for the conduct of the Election 2019, but also the provisions of the Electoral Act

2010 (as amended). It was argued that the case ofBruce v. Ere (supra) cited by the Cross ? Appellants, was inapplicable in this matter; and that Sections 69(1) and 140(3) of the Electoral Act 2010 (as amended) were cited out of con.

It was further submitted that Section 138(2) of the Electoral Act 2010 (as amended) is without ambiguity and it must be given its ordinary meaning, being: that any act or omission of an officer appointed for the purpose of the election which is contrary to the provision of the Electoral Act shall be a ground for questioning the election. The petition of the 1st and 2nd Cross ? Respondents alleged the breach of the mandatory provisions of Sections 27, 73 and 53 of the Electoral Act 2010 (as amended); which provisions, it was alleged, are also contained in the Manual for Election officers 2019 and Guidelines for the conduct of Election 2019, citing Faleke v INEC (2017) 3 NWLR (Pt. 1543) 16. The Court was urged to dismiss the cross ? appeal on this issue.

Resolution
The goal of a Court of law is always to do all within its power to do justice in any matter submitted to it for adjudication.

Issues arising for determination of a matter must be viewed in that light. It is therefore trite that an appellate Court possesses inherent power, in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties. The Court may adopt the Issues as framed by the respondent where such issue(s) formulated by respondent is or are more succinct, accurate and apt to the dispute than those formulated by the appellant, unless doing so would lead to injustice or prejudice to the appellant; Ikuforiji v. Federal Republic of Nigeria (2018) LPELR-43884(SC) 3. The trial Court, which has this same goal of acting in the interest of justice, may exercise the same power to formulate or reformulate issue or issues that are germane to the determination of a matter before it. Except these issues are shown to be prejudicial to one of the parties, the appellate Court will not interfere. In Nwana v FCDA (2004) LPELR-21029 (SC), the Supreme Court, per Tobi, JSC said:
?A party who complains about the formulation of issues or issues by the Court must say what injustice has been done to him by such formulation. In the absence of such evidence,

an appellate Court cannot reverse the decision of the lower Court. The formulation of the issue must result in miscarriage of justice for this Court to intervene in favour of the appellant.?

In an election petition, the issue for determination must be distilled from the ground upon which the petition is brought. The issue or issues formulated for determination in an election petition must be tailored to address the real issues arising from the ground upon which the petition was lodged. This is akin to the case of an appeal where the issue or issues for determination must be based on the ground or grounds of appeal; Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC); Nwankwo v Yar?Adua (2010) LPELR-2109(SC). The Appellants? petition herein was initially brought on two grounds:
(1) That the election and or return of the 1st Respondent Tyough Robert Aondona was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019.
(2) That the 1st Respondent, Tyough Robert Aondona was not duly elected by majority of lawful votes cast

at the Kwande/Ushongo Federal Constituency Election held on the 23rd February, 2019.
The trial tribunal struck out ground 1 upon objection to its competence taken by the 1st and 2nd Respondents. The surviving ground was ground 2. The trial tribunal formulated an issue for determination of the appeal of the petition in this manner, page 1664 of the Record (Vol. II):
Whether the 3rd Respondent’s declaration and return of the 1st Respondent as the winner of the Kwande/Ushongo Federal Constituency election which was held on the 23rd day of February, 2019 and the return made on the 26th day of February 2019 is unlawful and/or contrary to any of the provisions of the Electoral Act, 2010 as amended.
The debate now is whether this sole issue as formulated by the trial Tribunal encapsulated the controversy in this appeal or whether it was completely off tangent as contended by the Cross Appellants. I must immediately say that, as did the Cross Appellants, I also have difficulty in relating the ground 2 with the Issue for determination as formulated by the trial Tribunal for the following reasons: In the first place, the 1st Cross Respondent

was contending that the 1st Cross Appellant was not duly elected by a majority of lawful votes cast at the election. This was a valid ground for filing an election petition under Section 138 (1) of the Electoral Act, 2010, as amended. But the issue as formulated by the trial Tribunal and which it considered in determining the petition, examined the declaration and return of the 1st Cross Appellant.
Election is a process which commences with the process of accreditation. The intending voter presents his voter?s card to the Presiding Officer at the polling unit in the constituency where he is registered. When the Presiding Officer confirms that his name is on the voter?s register, he issues him with a ballot paper and then indicates on the voter?s register that the person has voted; Section 49 of the Electoral Act; Chuka v. Ikechukwu & Ors (2015) LPELR-40443(CA); PDP v. El-Sudi & Ors (2015) LPELR-26036(CA). What constitutes a lawful vote cast in an election was described by this Court in Ejiogu v. Irona & Ors (supra), (2008) LPELR-4083(CA) at page 37 of the E-Report, per Garba, JCA, in these terms:

“A valid or lawful vote to me is a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act. Once a vote cast at an election fully satisfied the requirements of the Electoral Act, then such a vote is a valid and/or lawful vote for the purposes of collating or computing the total or majority of valid votes cast at the said election.?
See also Iyagba v Sekibo (2008) LPELR-4346(CA); Agagu & Ors v. Mimiko & Ors (2009) LPELR-21149(CA) at page 71 of the E-Report; PDP & Anor v. INEC & Ors (2012) LPELR-8424(CA).
A return is defined in Section 156 of the Electoral Act, 2010, as amended, as:
the declaration by a Returning Officer of a candidate in an election under this Act as being the winner of that election. The declaration and return of a candidate, which take place after lawful votes have been cast and collated, are the penultimate and ultimate steps in the electoral process.
In Oyetola v Adeleke (2019) LPELR-47529 (CA), two of the grounds for the petition therein were:
?15.(ii) That the declaration and return of the 2nd Respondent as the

elected Governor of Osun State in(sic) invalid by reason of substantial non-compliance with the provisions of the Electoral Act 2010 (as amended), during the Governorship rerun election in Osun State of September 27, 2018.
(iii) That the declaration and return of the 2nd Respondent as Governor elect of Osun State is invalid by reason of corrupt practice during the Governorship rerun election in Osun State of September 27, 2018.
This Court considered the competence of the said grounds in the light of Section 138(1) of the Electoral Act, 2010, as amended, and, per Sankey, JCA, said, pages 74 ? 79 thereof:
?It is apparent from the above that the complaint of the Appellant concerns the disparity between what is provided for in the Act and the way and manner Grounds (ii) and iii) of the Petition were framed. The question which must be answered therefore is: whether this is fatal to the Petition of the Respondents.
Fortunately, this provision has fallen for interpretation in an avalanche of cases. The settled law is that Section 138(1) of the Electoral Act (supra) donates to a party the right to challenge an election

on any of the listed grounds. See Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; PDP V INEC (2014) 17 NWLR (Pt. 1437) 525; Gwede V INEC (2014) 18 NWLR (Pt. 1438) 56; Oke V Mimiko No. 2 (2014) 1 NWLR (Pt. 1388) 332; Akeredolu V Mimiko (2014) 1 NWLR (Pt. 1388) 402; Ngige V INEC (2015) 1 NWLR (Pt. 1440) 281; & Akpamgbo-Okadigbo V Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124.
In respect of the issue of compliance with the provisions of the Electoral Act in the presentation of grounds challenging an election, the Supreme Court in Ojukwu V Yar’Adua (2009) 12 NWLR (Pt. 1154) 50, 121, per Tobi, JSC exhorted litigants and Courts alike on the guidelines for the application of Section 145(1) of the Electoral Act, 2006, which is impari materia with Section 138(1) of the Electoral Act, 2010 , thus:
A petitioner is required to question an election on any of the grounds in Section 145(1) of the Act. He is expected to copy the Section 145(1) grounds word for word. I think the petitioner can also use his language to convey the exact meaning and purpose of this sub-section. In the alternative situation, a petitioner cannot go outside the ambit of

Section 145(1) of the Act. In other words, he cannot add to or subtract from the provision of Section 145(1). In order to be on the safer side, the ideal thing to do is to copy the appropriate ground or grounds as in the sub-section. A petitioner who decides not to use the same language has the freedom to do so, but he must realise that he is taking a big gamble, if not a big risk. A party has no legal right to expand the language or wordings of a statute. That is the exclusive function of the legislature. The legal right of a party is to expatiate on statute and not to expand it.
Thus, the question to be answered here is whether the grounds in the Petition, by challenging the declaration and return instead of the election as is precisely worded in Section 138(1) (supra), has taken the Petition out of the purview of the Electoral Act, thereby rendering the Petition incompetent.
After due consideration of the grounds vis-a-vis Section 138(1) of the Act (supra), I align myself with the submissions of Senior Counsel for the Appellants that the Respondents failed to properly base their challenge on the election. An election is a process which spans numerous

stages, including the ultimate declaration of result. Thus, where an aspect of the election is faulty, a party aggrieved is required to present a complaint against that entire process of election, and not just the declaration and return. Section 138(1) of the Electoral Actprovides the grounds that may be employed to challenge an election. It states-
138 (1) An election may be questioned on any of the following grounds, that is to say-
(a) That a person whose election was questioned was, at the time of the election, not qualified to contest the election;
(b) That the election was invalid by reason of corrupt practices or non-compliance, with the provisions of this Act;
(c) That the respondent was not duly elected by majority of lawful votes cast at the election; or
(d) That the Petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
The relevant grounds for this case are (b) and (c) above. In both of them, as well as the opening words in the Section, it is election that has been specifically stated, and a petitioner is expected to ensure that, that is what he is challenging. He cannot

deviate, by challenging anything other than an election. As clearly stated by the 1st and 2nd respondents, an election is a process which encompasses many aspects and culminates in the declaration of results and the return of a candidate who scored the majority of lawful votes cast at the election. The blanket ground of a petition, is the challenge of the election and then aspects of it can be attacked as particulars. If the election is not challenged, a fundamental pillar will be absent and the building will not hold. In Ojukwu V Yaradua (Supra) Niki Tobi JSC at page 121, graphically stated the position regarding the questioning of an election on the grounds provided in Section 145 (1) of the Electoral Act then, (now) Section 138 (1) of the Electoral Act .
In the instant case, the 1st and 2nd respondents in their paragraphs (ii) and (iii) grounds of the petition, they challenged the declaration and return of the 2nd respondent. Declaration and return are only aspects of the election. They are not the election and so, the Petitioners had seriously deviated from the requirement of Section 138 (1) of the Electoral Act 2010 as amended. That gamble could not

lead them to the Promised Land. I am therefore of the considered opinion that a challenge against the declaration and return was not within the contemplation of the apex Court in Ojukwu V YarAdua (supra). Therefore, since it was only an aspect of the election that was sought to be impugned by the Petition, to wit the declaration and return, and nothing more, the grounds in Paragraph 15(ii) and 15(iii) were not competent. The Petition is, on that ground, incompetent and ought to and is struck out.?
Now, it was not the ground for the petition itself that introduced considerations that were extraneous to Section 138 (1) of the Electoral Act. The 1st and 2nd Cross Respondents in ground 2 challenged the election of the 1st Cross Appellant by majority of lawful votes cast at the election in issue, within the boundaries of Section 138(1). Rather, it was the issue as formulated by the trial Tribunal upon which it determined the petition, that now introduced the extraneous considerations. In other words, the trial Tribunal, by the issue it formulated for determination of the petition, went outside the purview of Section 138(1), which it had no

jurisdiction to do. Declaration and return are only aspects of the election and do not constitute the election. Therefore, the trial Tribunal completely deviated from the requirement of Section 138 (1) of the Electoral Act 2010 as amended.
Further, the demand on a petitioner who contests the legality of votes cast and the subsequent result of an election has been well articulated in a number of judicial pronouncements. In Buhari v INEC (2008) LPELR-814(SC), the Supreme Court, per Tobi, J.S.C said, pages 172-173 of the E-Report:
“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No.

They must be eye witnesses too.
Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election. Proving an Election Petition or proof of an Election Petition is not as easy as the Englishman finding coffee on his breakfast table and seeping it with pleasure; particularly in the light of Section 146(1) of the Electoral Act. A petitioner has a difficult though not impossible task.” (Emphasis supplied).
In Uchechukwu v Okpalake (2010) LPELR-5041(CA), this Court, per Sanusi, JCA (as he then was) said, page 41-42 of the E-Report:
The appellants also contended that the 1st petitioner won the election by majority of lawful votes cast at the election. To my mind, the evidence to be led in proof of such assertion

which seems to be questioning the figures and scores of candidate at the election, must be evidence coming directly from the officers who were at the election ground where votes were cast, counted and or collated.?
See also: Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC); Abubakar v Yar?Adua (2008) LPELR-51(SC); PDP v Usman J. & Ors (2015) LPELR-26032(CA). The petitioner must therefore plead and adduce evidence from witnesses who were directly at the election ground where the votes were cast, counted and or collated.
In Nyesom v. Peterside & Ors (2016) LPELR-40036(SC), the Supreme Court, per Kekere-Ekun, JSC restated what must be placed before the Tribunal or Court as proof of grounds complaining that a respondent was not duly elected by a majority of lawful votes cast and or by non-compliance with provisions of the Electoral Act as follows: pages 51-53 of the E-Report:
?The law is well settled that in order to prove over voting the petitioner must do the following:
1. Tender the voters register;
2. Tender the statement of results in appropriate forms which would show the number of registered accredited

voters and number of actual votes;
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered;
4. Show that the figure representing the over-voting if removed would result in victory for the petitioner.
See: Haruna Vs Modibbo (2004) 16 NWLR (Pt. 900) 487; Kalgo v. Kalgo (1999) 6 NWLR (Pt.606) 639; Audu vs. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456 ; Shinkafi vs. Yari (unreported) SC.907) 2015 delivered on 8/1/2016; Yahaya vs. Dankwambo (unreported) SC.979/2015 delivered on 25/1/2016.
Furthermore, where the ground for challenging the return of a candidate in an election is by reason of corrupt practices or non- compliance with the provisions of the Electoral Act, the petitioner must prove:
(a) that the corrupt practice or non-compliance took place; and
(b) that the corrupt practice or non-compliance substantially affected the result of the election.
See:Yahaya Vs Dankwambo (supra); Awolowo Vs Shagari (1979) All NLR 120: Buhari Vs Obasanjo (2005) 2 NWLR (Pt.910) 241 and Sections 138(1) (b) and 139 (1) of the Evidence Act 2011.
The 1st and 2nd Cross

Respondents had pleaded in paragraph 66 of the Petition that they adopt the facts pleaded in support of ground 1 as facts in support of ground 2. But, it is apparent, from judicial pronouncements cited above, that what the petitioner must plead and prove when the complaint is that a respondent was not elected by majority of lawful votes cast is not the same as what a petitioner is expected to plead and prove when he alleges that there was corrupt practice or non-compliance that substantially affected the result of the election. Therefore, the argument of Counsel for the Cross Respondents that the facts in support of ground 1 of the petition could also support ground 2 does not accord with the law. The decision in Hope Democratic Party v. INEC & Ors. (2009) LPELR – 1375 (SC) relied on by the 1st and 2nd Cross Respondents does not apply herein.
Thus, the issue formulated by the trial Tribunal for determination of the petition on ground 2 was diametrically removed from considerations that ought to weigh in the mind of the judex when determining a petition founded on ground 2.
For the sake of emphasis, the trial Tribunal formulated the issue for

determination this way:
Whether the 3rd Respondent’s declaration and return of the 1st Respondent as the winner of the Kwande/Ushongo Federal Constituency election which was held on the 23rd day of February, 2019 and the return made on the 26th day of February, 2019 is unlawful and/or contrary to any of the provisions of the Electoral Act, 2010 as amended.
I agree with the Cross Appellants that the issue as was distilled by the trial Tribunal was rather in line with ground 1, which it had already struck out. However, it is trite that once an issue is struck out, it is no longer before the Court and cannot be taken account of. The trial Tribunal therefore ought not to have taken account of the struck-out ground 1 in distilling the issue for determination. Running with that Issue, the trial Tribunal misdirected itself and focused on matters extraneous to the contentions in the ground for the petition, in grave error. A misdirection is an error which entails following a wrong direction; Kurtong v Dakwahal (2019) LPELR-47077(CA). The Supreme Court in Sosanya v Onadeko & Ors (2005) LPELR-3105 (SC), at pages 19 ? 20 of the E-Report, per

Ejiwunmi, JSC, explained when a misdirection is said to occur as follows;
it is, I think, desirable to refer to some of the cases where similar questions on the meaning and effect of misdirection and error in law in a ground of appeal have been considered in this Court. It is in my respectful view apposite to begin the consideration of the cases with Chidiak v. Laguda (1964) 1 All NLR 160, 162-163.
“Time and again do cases come up on appeal in which matters are treated in the grounds of appeal as misdirection which are no more than findings of fact by the trial Judge. Perhaps it is time to make it clear again what is regarded as a direction. In the case of Bray v. Ford (1896) A. C. 44 at 50 Lord Watson said that: –
‘Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal.’
?”This is done by the trial Judge directing the jury, who are the Judges of fact, as to the issues of fact, and what is the law applicable to those issues. A misdirection therefore occurs when the issues of fact, the case

for the plaintiff or for the defence, or the law applicable to the issues raised are not fairly submitted for the consideration of the jury. Where, however, the Judge sits without a jury, he misdirects himself if he misconceives the issues, or summaries (sic) the evidence inadequately or incorrectly or makes a mistake of law, but provided there is some evidence to justify a finding it cannot properly be described as a misdirection. It is of course desirable, and we consider that it should be the practice that the particular findings to which objection is to be taken at the hearing of an appeal should be specified in the grounds of appeal alleging that the judgment was against the weight of evidence.”
It is therefore manifest from a careful perusal of the above quoted excerpt of Taylor, JSC that a misdirection occurs when a Judge misconceives the issues or summarizes the evidence inadequately or incorrectly for one side or the other, or makes mistakes in the law applicable to the issues in the case.?
In his concurring opinion, Tobi, JSC said, at pages 43 ? 44 of the E-Report:
Where a ground of appeal alleges misdirection,

an appellate Court has a duty to find out whether such misdirection occasioned a miscarriage of justice. See Yaro v. The State (1972) 2 S.C. 63.
An appellant who alleges a misdirection on the part of the trial Court must not show such misdirection to appellate Court but must not only show such misdirection to the appellate Court but must also show and convince the Court either that such misdirection in fact prejudicially affects his case or that such misdirection potentially has that effect on his case. See Cobham v. The State (1970-72) 1 RSLR 49.?
The point has been made above that the issue formulated by the trial Tribunal was fundamentally flawed being out of sync with the provisions of Section 138(1)(c), and in consequence, out of sync with what was required to prove the petition on ground 2. The trial Tribunal only had jurisdiction to determine a petition which is anchored on the grounds upon which an election petition could be brought. The issue as formulated went out of the purview of the provisions of Section 138(1)(c) and therefore was incompetent. Issue 1 is resolved in favour of the Cross Appellants.

The effect of the fundamentally flawed and incompetent issue on the final judgment of the trial Tribunal, which was in favour of the Cross Appellants, would, in my view, best be determined upon a consideration of the substantive appeal. It must be emphasized that the trial Tribunal, in its judgment, found no merit in the case of the 1st and 2nd Cross Respondents. The 1st and 2nd Cross Respondents failed to prove ground 2 on which the petition was brought. I note that the Cross Appellants in this appeal have largely struggled to speculate on what may have been the conclusion of the trial Tribunal if it had, found against them, relying on the margin of lead principle, which is not a consideration under the Electoral Act, particularly having regard to the provisions of Section 69 thereof. To be honest, I see no compelling reason to join the Cross Appellants in this journey of conjecture. I therefore see no need to proceed to consider the other issues framed by the Cross Appellants.

This appeal succeeds on Issue 1. The incompetent issue formulated by the trial Tribunal is hereby struck out. Its effect on the final judgment of the trial Tribunal shall be determined in the

main appeal. Parties are to bear their costs.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage to read in draft the Judgment just delivered by my learned brother, Otisi, JCA.
My learned brother has elaborately dealt with all the issues generated in the Cross-Appeal.
I am in agreement with his reasoning and conclusion allowing the Cross-Appeal. I too allow the Cross-Appeal for the same reasons.
I abide by the consequential orders made in the lead Judgment.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein.

The Tribunal struck out ground 1 of the grounds of the petition, viz; that the election of the cross-appellant was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Official, 2019. The 1st and 2nd cross-respondent were thus left with only ground 2, to wit; that the cross- appellant was not duly elected by majority of lawful votes cast at the election.

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Therefore the issue formulated by the Tribunal was not within the scope of the only extant ground of the petition. The issue formulation by the Tribunal was:
“Whether the 3rd respondent’s declaration and return of the 1st Respondent as the winner of the Kwende/Ushongo Federal Constituency election which was held on the 23rd day of February, 2019 and the return made on the 26th day of February 2019 is unlawful and/or contrary to any of the provisions of the Electoral Act as amended.” An issue in an election petition must draw its life from the ground of the petition and facts pleaded to vindicate the ground. An example will illustrate this point. Where a petition is founded on the ground in Section 138 (1) (d) of the Electoral Act, 2010 (as amended) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election, the issue in the petition cannot be whether or not the petitioner was duly elected majority of lawful votes cast at the election. Similarly as in – this instance, where a petition is based on the ground that the petitioner was not duly elected by majority of lawful votes cast at the election, the

issue therefrom cannot be whether or not the election was invalid by reason of corrupt practices or non-compliance.
Apart from the foregoing, the issue itself is a far distance from Section 138 (1) of the Electoral Act which provides that “an election may be questioned…” It is not the declaration and return that are questioned but the election itself. I therefore agree with my learned brother that the Tribunal misdirected itself.

My learned brother has with great gumption deferred the consideration of the effect of the misdirection to be determined in the main appeal.
?
It is for the above reason and the more comprehensive reasons in the lead judgment that I hold that the appeal succeeds on issue 1.
I abide by the consequential orders made in the lead judgment.

Appearances:

T. D. Pepe., Esq. with him E.O. Agena, Esq., for the 1st and 2nd Cross Appellants.For Appellant(s)

G. T. Yongo, Esq. with him S. A. Akpehe, Esq. and T. Nzughul, Esq., for the 1st and 2nd Cross Respondents.

O. P. Ogar, Esq. holding the brief of D. E. Okoro, Esq., for 3rd Cross RespondentFor Respondent(s)

Appearances

T. D. Pepe., Esq. with him E.O. Agena, Esq., for the 1st and 2nd Cross Appellants.For Appellant

AND

G. T. Yongo, Esq. with him S. A. Akpehe, Esq. and T. Nzughul, Esq., for the 1st and 2nd Cross Respondents.

O. P. Ogar, Esq. holding the brief of D. E. Okoro, Esq., for 3rd Cross RespondentFor Respondent

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