BARRISTER PETER O. MADUBUEZE v. COMRADE TONY NWOYE & ORS (2015)

BARRISTER PETER O. MADUBUEZE v. COMRADE TONY NWOYE & ORS

(2015)LCN/8045(CA)

In The Court of Appeal of Nigeria

On Thursday, the 10th day of December, 2015

CA/E/EPT/34/2015

RATIO

ELECTION PETITION: THE JURISDICTION OF ELECTION CASES

It is now settled by a long line of judicial decisions that election cases are different from civil and criminal cases and that the Rules of Procedure applicable to civil and criminal proceedings as well as civil and criminal appeals are not strictly applicable in election petitions and appeals. In Egharevba V Eribo (2010) 9 NWLR (Pt. 1199)411, the Supreme Court held that “An election legislation creates a special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purpose.” In Ehua V O.S.I.E.C(2006) 11-12 SC 102 the Apex Court had held that “It is not disputed that election petition proceedings are not part and parcel of the ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose. Such provisions include appeals against decisions of election Tribunals.”See also Ikechukwu V Nwoye(2015) 3 NWLR ( Pt. 1446)367. per. EMMANUEL AKOMAYE AGIM, J.C.A.

ELECTION: ELECTION PROCESS; WHETHER ONLY THE FINAL SUMMARY OF THE RESULTS IN A CONSTITUENCY SHALL BE PRESUMED CORRECT TO THE EXCLUSION OF THE ONES ISSUED AT THE OTHER STAGES OF THE ELECTION PROCESS

There is no law that states that only the final summary of the results in a constituency shall be presumed correct to the exclusion of the ones issued at the other stages of the election process. I agree with the submission of Learned counsel for the 1st respondent that the decisions of Saeed v. Yakowa (2013) 7 NWLR (Pt 1352) 124 at 161, CPC v. INEC (2011)18 NWLR (pt 1279) 689, Abubakar v. Yaradua (2008) 19 NWLR (pt 1120)1, Oke v. Mimiko (No 2) (2014) NWLR (pt 1388)332 and Buhari v. INEC (2008)19 NWLR (pt 1120) 246 cited by the Learned SAN for the appellant do not support the Learned SAN’S submission that only the declared final summary of results that is presumed correct and authentic and not the unit result. Those decisions did not deal with this question and so did not decide primacy of one level of result over the other. They merely restated the law that an election result declared by a returning officer is presumed correct and did not decide the issue of conflict between the lawful votes scored in the polling unit result and the lawful votes scored in in the Ward, Local Government Area or State summary of results and finally declared results. The final summary of results in a constituency is not the primary result of the election in each polling unit. It is, depending on the type of election, the third or fourth or fifth or sixth or seventh summary of the results of the election. In House of Representatives election, as in the instant case, it is the third summary of results and contains the summary of results from the two local Government Areas that make up the constituency. The Local government result contains the summary of results from the wards in the particular Local government Area. The ward results contain a summary of the results for each polling unit in the ward. So the presumption of correctness or completeness of any of the summary of results can be verified or challenged by a copy of a polling unit result certified as issued by the 8th respondent and coming from its custody. The primary sources from which the entries in a document are derived, remain the only means of confirming, verifying or challenging the correctness or completeness of the secondary entries. It would be absurd and not realistic to argue that the secondary entries in a document are more sacrosanct and correct than its primary source and that while it can be presumed correct because it has been announced and declared as the final result, the primary source or unit entries from which it is derived cannot be presumed correct. As this Court held in Uduma v. Arunsi & Ors (2010) LPELR-9133(CA) following Kress V Ochei (2004) 15 NWLR (pt.895) 196, it is now settled law that polling unit/booth results are the primary evidence of the votes cast. It is the foundation on which the pyramid of an election process is built. Thus, where the units results as recorded in the relevant forms( in this case form EC8A(11) are established and if there is any conflict with any other form in the upper hierarchy of the election, the unit results should and ought to be preferred?. See also Hope V Elleh & Anor (2009) LPELR 8520 (CA). per. EMMANUEL AKOMAYE AGIM, J.C.A.

EVIDENCE: CERTIFIED TRUE COPY; WHETHER CERTIFIED COPIES OF ELECTION RESULTS ARE CORRECT AND AUTHENTIC OR GENUINE AND THE LEGAL CONSEQUENCE OF THE PRESUMPTION OF THE PRESUMPTION OF THE GENUINENESS AND CORRECTNESS OF THE FORMS

It is judicially settled by a long line decisions of this Court and the Supreme Court that certified copies of the official election result forms of the 8th respondent are presumed to be genuine and correct until proven otherwise. See for example Adun v. Osunde (2003)16 NWLR (pt.847)643, Buhari v. Obasanjo (2005)2 NWLR (900) 241, Nwole v. Iwuagwu (2005)16 NWLR (pt. 952)543, Nwogu v. Nnamani (2006)8 NWLR (pt. 981)160 and Onuoha v. Akpolonu & ors (2008) LPELR-4788 (CA). Therefore the Tribunal was right to have presumed the said certified copies of election results forms EC8A(II) and EC8B(II) as correct and authentic or genuine. The legal consequence of the presumption of the genuineness and correctness of the forms EC8A(II) and EC8B(II) is that the fact of their genuineness and correctness must be regarded as proved until it is disproved. This is so by virtue of S. 145(2) of the Evidence Act 2011 which provides that:-
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. It would be contrary to S. 145(2) of the Evidence Act 2011 to require proof that elections held in the said polling units in the face of certified copies of the official result forms of the results of the said polling units, the genuineness of which the Court shall presume by virtue of S. 146 of the Evidence Act. The presumption of genuineness and correctness of the polling units and ward election results removes the burden to prove that the election that led to the results took place until the presumption is rebutted. See Buhari v. Obasanjo (supra) and Chime v. Ezea (2009)2 NWLR (pt 1125)230 at 342 where this Court held that the simple way to show that election held is to produce the results of the election. This Court also held in Onuoha v. Akpolonu & ors (supra) that they are credible evidence that elections held at the polling units in respect of which results were entered therein. per. EMMANUEL AKOMAYE AGIM, J.C.A.

EVIDENCE: PRESUMPTION OF FACT; THE BURDEN OF REBUTTING A FACT PRESUMED BY LAW

It is trite law that the burden to disprove or rebut a fact presumed by law to exist lies on the person who denies its existence. It is the appellant who denied the authenticity and correctness of Exhibits P.1 to P.9 by alleging that they were fabricated and false, as no elections took place in those polling units as to produce the said results. See Onuoha v. Akpolonu (supra). The Tribunal was right in holding that the respondents to the petition had the burden to disprove or rebut the presumption that the said election results are genuine and correct. per. EMMANUEL AKOMAYE AGIM, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

Between

BARRISTER PETER O. MADUBUEZE Appellant(s)

AND

1. COMRADE TONY NWOYE
2. ALL PROGRESSIVE GRAND ALLIANCE (APGA)
3. THE RETURNING OFFICER ANAMBRA EAST/ANAMBRA WEST FEDERAL CONSTITUENCY, ANAMBRA STATE
4. THE COLLATION OFFICER, ANAMBRA EAST LOCAL GOVERNMENT AREA, ANAMBRA STATE
5. THE ELECTORAL OFFICER, ANAMBRA EAST LOCAL GOVERNMENT AREA ANAMBRA STATE
6. THE ELECTORAL OFFICER, ANAMBRA WEST LOCALGOVERNMENT AREA, ANAMBRA STATE
7. THE RESIDENT ELECTORAL COMMISSIONER, INDEPENDENT NATIONAL ELECTORAL COMMISSIONANAMBRA STATE
8. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. :(Delivering the Leading Judgment): The general election to the office of member of the House of Representatives for Anambra East/Anambra West Federal constituency held on 28-3-2015. 12 candidates contested the election. The appellant contested the election on the platform of the 2nd respondent. The 1st respondent contested the election as the candidate of Peoples Democratic Party, a registered Political Party in Nigeria. At the conclusion of the election, the appellant was declared to have the majority of lawful votes cast in the election (19,065 votes), declared the winner of the election and returned elected as member representing Anambra East/Anambra West Federal constituency in the House of Representatives. The 1st respondent who was declared to have secured 16,965 lawful votes, coming second after the appellant, was dissatisfied with the declared result of the election.

On 17-4-2015, the 1st respondent filed an election petition in the Anambra State National and State House of Assembly Election Tribunal commencing petition No. EPT/AWK/HR/09/2015 on the sole ground that the appellant was not duly

elected by majority of lawful votes cast at election. The reliefs sought are stated in Paragraph D of the petition thusly-
1. An Order adding 5,510 votes from six polling units in Nsugbe ward 1 and two polling units in Nsugbe ward II of Anambra East LGA to the total score of the petitioner at the election wrongfully excluded from the votes credited to him, and adding 43 votes from the same polling units to the total score credited to the 1st respondent also wrongfully excluded such that the total score of the petitioner and 1st respondent are 22,475 and 19,108 respectively.
2. A declaration that the 1st respondent Barrister Peter O. Madubueze did not score the majority of lawful votes cast in the election held on the 28th day of March, 2015 for the Anambra East/Anambra West Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria and was wrongly returned and declared elected.
3. An Order setting aside the return of the 1st Respondent in the said election.
4. An Order directing and compelling the withdrawal of Certificate of Return issued to the 1st respondent.
5. A

Declaration that the Petitioner scored the majority of lawful votes cast in the general election held on the 28th day of March, 2015 for the Anambra East/Anambra West Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria and ought to have been returned as winner and declared elected.
6 An Order declaring the Petitioner who scored the majority of lawful vote cast at the election winner and returning him as duly elected..
7. An Order directing INEC to issue Certificate of return to the petitioner as the person elected and returned to represent the Anambra East/Anambra West Federal Constituency of the House of Representatives of the Federal Republic of Nigeria.

All the respondents filed replies to the petition. The petitioner filed a reply to the 1st respondent?s reply and 2nd respondent?s reply.

?The 1st respondent adduced evidence in support of his petition through 9 witnesses. The respondents to the petition adduced evidence in support of their case through 10 witnesses. After the conclusion of evidence by all parties and following the filing, exchange and adoption of

written final addresses by all parties, the Tribunal on 12-10-2015 rendered its judgment, holding that the petitioner proved his entitlement to the reliefs claimed for in the petition and granted the reliefs thusly-
1. It is hereby ordered that 2935 votes from 6 polling units in Nsugbe ward 1 of Anambra East Local Government Area to the total score of the petitioner wrongfully excluded from the votes credited to him, and adding 30 votes from the same polling units to the total score credited to the 1st respondent also wrongfully excluded such that the total score of the petitioner and the 1st respondent are 19,900 and 19108 respectively.
2. It is hereby declared that the 1st respondent Barrister Peter O. Madubueze did not score the majority of lawful votes cast in the election held on the 28th of March, 2015 for the Anambra East/West Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria and was wrongly returned and declared as elected.
3. The return of the 1st respondent in this election is hereby set aside.
4. It is hereby ordered that the Certificate of return issued to the 1st

respondent be hereby withdrawn.
5. it hereby declared that the Petitioner scored the majority of the lawful votes cast in the general election held on the 28th of day of March, 2015 for the Anambra East/West Federal Constituency of the House of Representatives of the National Assembly of the Federal Republic of Nigeria and ought to have been returned as winner and declared elected.
6. The Petitioner is hereby declared as having scored majority of the lawful votes cast in the election as is also declared the winner and returned as duly elected.
7. The Independent National Election Commission is hereby ordered to issue a Certificate of return to the Petitioner as the person elected and returned to represent the Anambra East/Anambra West Federal Constituency of the House of Representatives of the Federal Republic of Nigeria.

Dissatisfied with the said judgment, the appellant commenced this appeal No. CA/E/EPT/34/2015 on 30-10-2015 by filing a notice of appeal dated 19-10-2015 and containing 11 grounds of appeal. All parties herein have filed, exchanged and adopted their respective briefs of argument as follows ? appellant?s brief,

1st respondent?s brief of argument, 2nd respondent?s brief of argument, 3rd to 8th respondents? brief of argument and appellant?s reply brief to 1st respondent?s brief. Appellant?s brief was written by Ken E. Mozia SAN. The 1st respondent?s brief was written by Aniagbaoso Pius OfoegbunamEsq. The 2nd respondent?s brief was written by Sylvester Odili. The 3rd to 8th respondent?s brief was written by Alhassan A. Umar Esq.

The appellant?s brief raised the following issues for determination-
1. Whether the Tribunal was right in reaching a determination that the uncollated results allegedly derived from the six polling units in Nsugbe ward 1, were successfully proved to be products of due balloting which are valid for collation; (Distilled from Grounds 1, 2, 6 and 7).
2. Having reached a determination that ?the electoral body appears to be working hand in glove with the Petitioner?, was the Tribunal right in its further determination that the effect of the said relationship is to foist an extra burden of proof on the Appellant (Ground 5)
3. Whether the Tribunal fully

appreciated the case made by the parties and adequately evaluated the evidence adduced; (Grounds 3, 8 and 10)
4. Whether the Tribunal was right in its determination that due elections held in the six polling units in Nsugbe ward 1 subject of the disputation (Ground 4 and 9).

The 1st respondent?s brief raised one issue for determination as follows:- ?whether considering the state of the pleadings, evidence adduced and the applicable law, the trial Tribunal was not right to have entered judgment in favour of the 1st respondent.?

The 2nd respondent?s brief of argument raised two issues for determination as follows:-
1. Whether the Tribunal by its failure to determine the main issue for determination adopted by itself and the parties in the petition has not deprived the appellant and the 2nd respondent of fair hearing whether the decision of the Tribunal ought thereby to be set aside? (Ground 1 of the Appeal)
2. Whether the Tribunal was right to have entered judgment in favour of the 1st respondent in face of the irregularities and anomalies on the face of the result sheets and voters registers from the disputed

polling units? (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the Appeal).

The 3rd to 8th respondent?s brief of argument raised the following issues for determination:-
1. Whether the National and State House of Assembly Election Tribunal, Anambra State was correct in holding that the cases of proven irregularities, discrepancies and anomalies found on the forms submitted by the collation officers and voters Registers were not enough to hold and conclude that elections did not hold in Nsugbe ward 1 and whether they correctly and validly collated the alleged results contained in Exhibits P1-P6 and added them to the 1st respondent?s result?
2. Whether the National and State House of Assembly Election petition Tribunal, Anambra State, did not wrongly place the burden of proof on the Appellant and the 2nd respondent to prove.

?The 1st respondent in his brief of argument raised a preliminary objection to this appeal and some grounds and issues in the following terms:
?TAKE NOTICE that 1st respondent shall before or at the hearing of this appeal raise a preliminary objection and shall contend that:-
i. The Notice of

Appeal filed in this appeal is incompetent and ought to be struck out for not containing names of the parties affected by the appeal as mandatorily required by Order 6 Rule 2 of the Court of Appeal Rules, 2011.
IN THE ALTERNATIVE
Grounds 2 (particular ii), 3, 4, 5 (particular ii), 7 (particular v, vii), 8 (particular vi, vii) 10 (particular ii) of the Grounds of appeal are incompetent and ought to be struck out in that the issue of irregularities to which the grounds relates has been determined by the Court of Appeal in Appeal No: CA/E/EPT/15/2015 between the same parties and over the same petition.
Particular (ii) to Ground 2, particular (ii) to Ground 5, particular (v, vii) to Ground 7 (particular vi, vii) to Ground 8 (particular ii) to Ground 10 of the Grounds of Appeal are liable to be struck out as they embody complaints on the issues of irregularities already determined by the Court of Appeal in CA/E/EPT/14/2015 and Grounds 2, 5, 7, 8 and 10 are consequently liable to be struck out.
Issues 1 and 2 in the Appellant?s Brief of Argument distilled from the incompetent Grounds 2, 5 and 7 as well as the entire arguments in

substantiation thereof ought to be struck out on the basis that it is contaminated by issues of irregularity on INEC document which has been finally determined in the Interlocutory judgment of Court of Appeal No: CA/E/EPT/14/2015.
ii. Issue 3 with the entire arguments thereon in the Appellant?s Brief of Argument distilled and argued based on the incompetent particulars in Grounds 8 and 10 ought to be struck out on the ground that it is contaminated by irregularity on the face of judgment of Court of Appeal in CA/E/EPT/14/2015
iii. Issue 4 with the entire arguments thereon in the Appellant?s Brief of Argument distilled and argued on the incompetence, Ground 4 ought to be struck out as it embodies complaints on issue of irregularity already determined by the Court of Appeal.?

The 1st respondent by a notice of motion filed on 27-11-2015 applied to this Court to strike out the 3rd to 8th respondent?s brief of argument ?for departing from the traditional role of a respondent which is to support the judgment of the Court below or refrain from attacking it but rather without an Appeal or Cross Appeal, the 3rd to 8th

respondents have urged that this Appeal be allowed and judgment of the Court below set aside.?

I will consider these objections before I determine the issues for determination raised in the respective briefs herein, if the first ground of the 1st respondent?s preliminary objection does not terminate this appeal.

Let me start with the notice of preliminary objection. I have read and considered the arguments of Learned Counsel for the 1st respondent and those of the Learned SAN for the appellant concerning the 1st respondent?s objection that the notice of this appeal is incompetent for failure to list the names and addresses of the parties affected by this appeal as required by Order 6 Rule 2 of the Court of Appeal Rules 2011.

?Let me straight away state that I do not agree with the submissions of Learned Counsel for the 1st respondent for the following reasons. The right to appeal to this Court from the decision of the National Assembly and State House of Assembly Election Tribunal is created by S. 246(1)(b) of the Constitution of the Federal Republic of Nigeria 1999, as amended(1999 Constitution), and the right is exercised in

accordance with Paragraphs 6 and 7 of the Election Tribunal and Court Practice Directions 2011, which prescribe the procedure for filing such appeals. Learned Counsel for the 1st respondent has not given any reason for arguing that this appeal must comply with Order 6 Rule 2 of the Court of Appeal Rules 2011 which apply to appeals from decisions in civil cases, when there is a special legal regime created by the 1999 Constitution and the Election Tribunal and Court Practice Directions 2011 for appeals to this Court from the decisions of the National Assembly and Legislative House of Assembly Election Tribunals and Governorship election Tribunals in election petitions. A notice of an appeal to this Court from the decision of a Tribunal in an election petition must be brought in accordance with Paragraphs 6 and 7 of the Election Tribunal and Court Practice Direction 2011 and not in accordance with Order 6 Rule 2 of the Court of Appeal Rules 2011 which apply to purly civil appeals. It is now settled by a long line of judicial decisions that election cases are different from civil and criminal cases and that the Rules of Procedure applicable to civil and criminal

proceedings as well as civil and criminal appeals are not strictly applicable in election petitions and appeals. In Egharevba V Eribo (2010) 9 NWLR (Pt. 1199)411, the Supreme Court held that “An election legislation creates a special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purpose.” In Ehua V O.S.I.E.C(2006) 11-12 SC 102 the Apex Court had held that “It is not disputed that election petition proceedings are not part and parcel of the ordinary civil proceedings of the ordinary Courts but sui generis and are usually specifically and specially provided for in legislations for that purpose. Such provisions include appeals against decisions of election Tribunals.”See also Ikechukwu V Nwoye(2015) 3 NWLR ( Pt. 1446)367

In any case it is obvious from the provisions of Paragraph 7(c) of the said Practice Directions which require that the appellant pay a fee for service on all the respondents and Paragraph 8 of the Practice Directions which require that the Secretary of the Tribunal shall immediately upon receipt of the notice of appeal, cause same to be served on all the

respondents, that the Practice direction requires that the notice of appeal be served on the respondent. Since there can be no service of a process without an address for service stated thereon, it follows that the notice of appeal must state the address for service on the respondents.

I have perused the notice of appeal that commenced this appeal. The address for service on the respondents is stated in the last three pages (pages 14, 15 and 16) therein. The said notice of appeal therefore complies with the requirements of Paragraphs 6, 7 and 8 of the said 2011 Practice Directions.

Therefore, assuming Order 6 Rule 2 of the Court of Appeal Rules 2011 was applicable to this appeal, this notice of appeal clearly complies with it, as the names and addresses of the persons affected by it are clearly stated therein. The argument that the use of the terms “appellant,” “1st respondent” etc to identify the parties affected by the appeal does not comply with Order 6 Rule 2 of the Court of Appeal Rules is pedantic and meaningless, since the actual full names of the parties are stated directly opposite the word identifying them as parties

in the face of the notice of appeal.

I agree with the submission of Learned SAN for the appellant that assuming the names and addresses of all parties affected by the appeal were not stated in the notice of appeal as required by Order 6 Rule 2 of the 2011 Court of Appeal Rules, this would amount to a mere irregularity that can be condoned and not allowed to vitiate the notice of appeal. That is why Order 20 Rule 2 of the said Court of Appeal Rules direct a departure from the said Rules in the interest of justice and Order 20 Rule 3(1) and (2) enable this Court to waive non compliance with any of the Rules and order the appeal to proceed the interest of justice.

?Finally, by virtue of Order 20 Rule 5(1) of the Court of Appeal Rules, the 1st respondent?s said notice of objection is belated and cannot be made after the respondent had taken several steps in the appeal proceedings, including the filing of his brief of argument after becoming aware of the said non-compliance. In the light of the foregoing, the objection to the competence of the notice of this appeal on the ground that the names and addresses of all parties are not stated therein is

overruled and dismissed.

Upon a careful reflection on the arguments of both sides concerning the 1st respondents alternative objections against grounds 1, 2, 3, 4, 5, 7 and 8 of this appeal, I realised that determining them at this stage would pre-judge the merits of the issues for determination raised by the parties in this appeal. I have decided to determine them together with the merit of this appeal.

Let me now consider the 1st respondent’s objection to the 3rd to 8th respondents’ brief of argument raised by notice of motion filed on 27-11-2015. The ground for the objection is that the said brief of argument instead of supporting the judgment appealed against in line with the traditional role of the respondent in an appeal, attacked the judgment without a cross-appeal contrary to Order 18 Rule 4(2) of the Court of Appeal Rules 2011 which provides that:- The Respondents brief shall answer all material points of substance contained in the Appellants brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis,

mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order.

It is on the basis of this provision that Chief OlusolaOke argued vigorously before us that the 3rd 8th respondents brief is incompetent.

This provision clearly prescribes what the respondents brief should do and contain. The respondents brief answers the material arguments in the appellants brief. In doing so, it can concede to the said arguments or argue that the appeal be dismissed. The respondents brief cannot attack the Judgment because the respondent has not complained against the judgment by an appeal or other legal process. It is the appellants brief that can competently attack or challenge the judgment because it is the appellant who complained against the judgment by an appeal.

The right to argue against a judicial decision can only be exercised by the party who complained against it by an appeal or other legal process and only on the basis of the grounds for the appeal. An appeal proceedings is not an uncharted voyage. Rights of argument therein must be exercised within the limits prescribed by law. The

proceedings are strictisima Juris. Just as the appellant cannot argue against or attack any part of the judgment against which he has not complained in a ground of appeal, the respondent who has not complained against the judgment cannot argue against it or attack it.

The 3rd to 8th respondents brief of argument is essentially in the nature of an appellants brief of argument. It is therefore not a competent respondents brief. I will therefore refuse to countenance it as a respondents brief of argument. It is accordingly struck out.

Although no objection is raised against the 2nd respondents brief, it is obviously an appellants brief in the guise of a respondents brief by the 2nd respondent who did not complain against the judgment of the Tribunal. It is also hereby struck out.

The appellant and 2nd to 8th respondents were co-respondents to the election petition filed by the 1st respondent as petitioner at the Tribunal. The Tribunal rendered judgment in favour of the petitioner. The appellant who was 1st respondent now brought this appeal against the said judgment and listed the petition and his

co-respondents to the petition as respondents to the appeal. This may the reason for the 2nd -8th respondents? arguments against the judgment. The filing of brief in the nature of appellant?s brief under the guise of respondent?s brief by the 2nd to 8th respondents is unfair and prejudicial to the 1st respondent because he has no opportunity to his co-respondents? brief of argument which is entirely focused on attacking the judgment in his favour. As it is, the only extant briefs of argument in this appeal are the appellants.

I will determine this appeal on the basis of the issues for determination raised in the appellants? brief of argument.

?Learned SAN for the appellant argued issues one and four together. The case of the 1st respondent in his election petition is that elections duly held in all the polling units, in all wards, in all the two local government Areas of the Anambra East/Anambra West Federal Constituency, that the voters were duly accredited and duly voted, that at the close of poll, the results were duly entered and collated in each polling unit in form EC8A(ii), that the polling unit results were taken

to the ward collation centres and entered into the result form EC8B(II), that the ward collated results are then submitted to the Local Government collation officer for entry into the summary result for the Local government Area form EC8C(II) which are then submitted to the constituency returning officer (3rd respondent) for final collation in form EC8D(11) and declaration of result in form EC8E(11), that the Nsugbe Ward 1 results arrived late and the 3rd respondent prevailed upon the 4th respondent not to accept and collate it, that the said Nsugbe Ward 1 result was not included in the result for Anambra East Local government Area, that the ward collation officer for Nsugbe Ward 11, who collated the polling units results in that Ward, did not include the unit results for units 002 and 004 in the result form EC8B(II), that the 3rd respondent collated the constituency result without the seven polling unit results of Nsugbe I Ward and the two polling units result of Nsugbe II Ward and declared the appellant as the candidate that secured the majority of lawful votes cast at the election, that it is the 1st respondent and not the appellant that had majority of

lawful votes if the lawful votes cast in the seven polling units of Nsugbe Ward 1 and the two polling units of Nsugbe Ward 11 had not been unlawfully excluded, that the exclusion of those results by the 3rd respondent has no justification and that he applied to the 7th and 8th respondent for the certified true copies of the election results for all the polling units (form EC8A(II)), for the ward (form EC8B(II), for the Local Government Areas (EC8C(II), and for the constituency (form EC8D(II) and form EC8E(11), that the 7th and 8th respondents issued him with the certified copies of the said result forms which include the excluded results for the polling units in Nsugbe Ward I and Nsugbe Ward II.

?The case of the respondents to the petition is that elections held in all polling units, in all wards and in all two Local Government Areas, except polling units 001, 002, 004, 006, 007 and 008 in Nsugbe Ward 1, that no elections held in these units because the Supervisory Presiding Officer who collected the election materials for the ward disappeared with them and only arrived the ward later in the day, about 2.30 pm and could not account for the result sheets

amongst the election materials he collected, that the 5th respondent had to send for replacement result sheets from the 8th respondent?s office at Awka, which arrived, but the voters would not allow the election hold in the said six units, because it was too late and the election held only in polling unit 003 of Nsugbe Ward 1, that there were no election results for the six polling units in Nsugbe Ward 1 as no election held there, that the election results for unit 002 and 004 were not excluded from the ward result for Nsugbe Ward 11, that no lawful votes were excluded from being collated and declared, that the appellant secured majority of lawful votes.

?The pleadings and evidence of both sides show that the main dispute between the parties in the trial proceeding was whether elections held in polling units 001, 002, 004, 005, 006, 007 and 008 in Nsugbe Ward 1 or not. The Tribunal was therefore right when it decided this issue first. I also find as correct the approach of the Tribunal in considering the evidence adduced by both sides on the issue. It first considered the evidence adduced by the 1st respondent and on the basis of the said evidence

decided that the evidential burden shifted to the respondents in the trial proceedings to rebut the case established by the evidence adduced by the petitioner. The portion of the judgment of the Tribunal where this issue was considered reads thusly:- The whole case of the petitioner it should be noted is based on the fact that polling unit results generated during the election of the 28th of March 2015 from units in Nsugbe Ward 1 and Ward 2 were not collated in the final result declared in form EC8E(I) these results were tendered in evidence by the petitioners as EXHIBITS P1 TO P6 AND EXHIBIT P7 AND P8 respectively. They were certified true copies from the custody of INEC Anambra State as forming part of the documents generated in the election and which purported to be polling unit results generated in the said election.
The implication of their coming from proper custody of the body charged with conduct of the election, is that they represent what they purport. Being results purporting to be declared results by a Presiding officer, they have the presumption of being correct. The burden is therefore on the person who denies the correctness and

authenticity of the results. See the case of finebone v. Brown (1999) LPELR-6690 (CA). See also Jalingo v. Nyame (1992)3 NWLR (pt. 231)538 at540; Omoboriowo v. Ajasin (1984) SCNLR 108.
The first and 2nd respondent, therefore have the uphill task to provide credible evidence to debunk the purport of those documents.
Of course it is as a result of the implication of this presumption that they have alleged that no elections took place in Nsugbe ward 1 apart from unit 003.
The petitioner on the other hand also called evidence. In fact he called one witness each from the polling units in contention who testified as to the holding election in those units. The 1st and 2nd respondents themselves called witnesses who testified that there was no election in those polling units. We believe the higher burden rests with the respondents to show why this Tribunal should jettison the said Exhibits which purport election actually took place. The principle is that every valid vote cast in an election must count and were there appears to be valid votes apparently forming part of an electoral process, the burden should lie on the party who seeks to discountenance

those votes to provide credible evidence to do so.

This approach accords with the provision of S. 133 of the Evidence Act which also applies in election cases. It provides that:-
(1) In civil cases the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.
(2) If the party referred to in Sub-ection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

It is obvious from the above portion of the judgment of the Tribunal reproduced herein earlier, that the Tribunal acknowledged that the primary and legal burden to prove that election held in the seven polling units in Nsugbe Ward 1 was on the 1st respondent, that the Tribunal was reasonably satisfied that the evidence adduced

by the 1st respondent which evidence consist of certified true copies of results from the custody of the 8th respondent and the oral evidence of voters from each polling unit established that elections held in the said polling units in Nsugbe I ward and that the Tribunal held that the burden to rebut the case established by the evidence of the 1st respondent shifted to the respondents to the petition (appellant and 2nd to 8th respondents in this appeal).

Learned SAN for the appellant has argued that it is the certified copies of the final summary of the constituency results (forms EC8D(II) and EC8E(II)) that was declared (Exhibits PII, and P12) that should enjoy the legal presumption of correctness and authenticity and the certified copies, that polling unit results in form EC8A(II) (Exhibits P1-P6) and not ward results in form EC8B(II)(Exhibit P9) that were not announced or declared by the 8th respondent. Learned Counsel for the 1st respondent argued in reply that the above submission of Learned SAN for the appellant ignores the case of the 1st respondent at trial that Exhibits P 11 and P12 excluded the results in Exhibit P9 and therefore cannot be

correct statements of the final result of the constituency.

I agree with the submission of Learned counsel for the 1st respondent that the above argument of Learned SAN disregards the nature of the case presented by the 1st respondent. The election Petition did not challenge the authenticity of Exhibits P11 and P12. It contends that the election results in Exhibits P1 ? P6 and Exhibit P9 were unlawfully excluded from Exhibits P11 and P12 and that therefore they are not correct statements of the total lawful votes cast in the Constituency. The two sets of exhibits are not in competition with each other for legitimacy and acceptance as authentic. The question of which of the two should be presumed authentic and correct and which should not be presumed authentic and correct can only arise where the two purport to be evidence of the same fact and each is clearly an alternative to the other. In our present case both sets of documents are results from the custody of the 8th respondent who has certified them as its genuine documents. They do not purport to be evidence of the same fact and therefore non is an alternative to the other. Exhibits P1 to P6 and

Exhibit 9 are evidence of the total lawful votes cast in polling units 001, 002, 004, 005, 006, 007 and 008 in Nsugbe Ward 1 and the lawful votes secured by each candidate in the respective units. Exhibits 11 and 12 are evidence of the total lawful votes scored by each candidate in all wards except units 001, 002, 004, 005, 006, 007 and 008 of Nsugbe Ward 1 and evidence of all lawful votes cast in the two local government Areas of the Constituency. There is therefore no basis for the argument that Exhibits P11 and P12 are entitled to be presumed authentic and correct and Exhibits P1 to P6 and Exhibit P9 were not entitled to be so presumed.

The Tribunal was therefore right to have presumed Exhibits P1 to P6 and P9 as genuine and correct on the basis that they are from proper custody having been certified by the 8th respondent as coming from its custody. In all elections, the primary result of the election is the polling unit result, usually issued by the 8th respondent through its officials in the prescribed polling unit result form for that election. In House of representatives election the polling unit result form is form EC8(II). All the polling

unit results for all the polling unit results for all polling units in a ward are collated in the ward summary of result form for that election, which in our present case is form EC8B(II). All the ward results in a Local government Area are collated in the Local government summary of resultform which in our case is form EC8C(II) and the Local government results are collated in the constituency final summary of result form EC8D(II) announced and declared in form EC8E(11)as the constituency election result. All results issued by the 8th respondent at each stage of an election process enjoy the presumption of correctness of an election result. There is no law that states that only the final summary of the results in a constituency shall be presumed correct to the exclusion of the ones issued at the other stages of the election process. I agree with the submission of Learned counsel for the 1st respondent that the decisions of Saeed v. Yakowa (2013) 7 NWLR (Pt 1352) 124 at 161, CPC v. INEC (2011)18 NWLR (pt 1279) 689, Abubakar v. Yaradua (2008) 19 NWLR (pt 1120)1, Oke v. Mimiko (No 2) (2014) NWLR (pt 1388)332 and Buhari v. INEC (2008)19 NWLR (pt 1120) 246 cited by

the Learned SAN for the appellant do not support the Learned SAN?S submission that only the declared final summary of results that is presumed correct and authentic and not the unit result. Those decisions did not deal with this question and so did not decide primacy of one level of result over the other. They merely restated the law that an election result declared by a returning officer is presumed correct and did not decide the issue of conflict between the lawful votes scored in the polling unit result and the lawful votes scored in in the Ward, Local Government Area or State summary of results and finally declared results.

?The final summary of results in a constituency is not the primary result of the election in each polling unit. It is, depending on the type of election, the third or fourth or fifth or sixth or seventh summary of the results of the election. In House of Representatives election, as in the instant case, it is the third summary of results and contains the summary of results from the two local Government Areas that make up the constituency. The Local government result contains the summary of results from the wards in the

particular Local government Area. The ward results contain a summary of the results for each polling unit in the ward. So the presumption of correctness or completeness of any of the summary of results can be verified or challenged by a copy of a polling unit result certified as issued by the 8th respondent and coming from its custody. The primary sources from which the entries in a document are derived, remain the only means of confirming, verifying or challenging the correctness or completeness of the secondary entries. It would be absurd and not realistic to argue that the secondary entries in a document are more sacrosanct and correct than its primary source and that while it can be presumed correct because it has been announced and declared as the final result, the primary source or unit entries from which it is derived cannot be presumed correct. As this Court held in Uduma v. Arunsi & Ors (2010) LPELR-9133(CA) following Kress V Ochei (2004) 15 NWLR (pt.895) 196, it is now settled law that polling unit/booth results are the primary evidence of the votes cast. It is the foundation on which the pyramid of an election process is built. Thus, where the

units results as recorded in the relevant forms( in this case form EC8A(11) are established and if there is any conflict with any other form in the upper hierarchy of the election, the unit results should and ought to be preferred?. See also Hope V Elleh & Anor (2009) LPELR 8520 (CA)

Another submission of Learned SAN for the appellant is that the above reproduced holding of the Tribunal is wrong and alien to our electoral jurisprudence, that the finding is perverse, that the initial burden was on the 1st respondent to show that election duly took place in the polling units in question in the face of the pleading of the respondents to the petition that elections did not hold in those units, that the 1st respondent had the duty to show that all the constitutive elements of a due election took place, that the appellant?s stance in its pleadings is supported by the presumption of correctness of the certified copies of the declared results forms EC8C(II), EC8D(II) and EC8E(II) which did not contain any result from the polling units in question, that:- ?Applying similar yardsticks to those employed by the Tribunal in respect of Exhibit P1

P6, this would have raised the presumption that no election took place in the said units and that no results were generated therefrom. By the reasoning of the Tribunal, this should have been the initial presumption that the 1st respondent had a duty to rebut by credible evidence which he failed to do.
Having joined issues on whether or not elections took place in the units in question and whether result sheets were distributed to the said units, the 1st respondent had to lead evidence to show that:-
(a) election materials including result sheets and Voters Registers were distributed up to and received by the Presiding Officers at the six (6) units. The Electoral Materials Distribution and Receipt forms EC25A and EC25B had to be pleaded and produced in the circumstance. This was not done.
(b) there was accreditation of voters; and that voting subsequently took place;
(c) ballots cast were duly counted, the scores filled in the appropriate result sheets forms EC8A(ii) announced and copies given to agents present.

Learned SAN relied on the decision of Ogboru v. Udughan (2010) LRECNI at 58 for the above submissions and

argued that the decision apples here with full force since the petitioner made the assertion, that he did not plead or adduce evidence of any of the constitutive elements of a due election, that no presiding officer was called to testify, that no copy of any of the alleged results was given to any of the agents of the appellant and other candidates, that the voters Registers for the units in question were tendered by counsel from the Bar as Exhibits P.16 to P.21 and Exhibits R.28 and R.33, that they were not demonstrated during trial by any Presiding officer whose duty it was to produce them and were just dumped on the Tribunal and no oral evidence called to relate them to any part of the case of the 1strespondent.
For these submissions, the Learned SAN relied on the decisions in Omisore & Anor v. Aregbesola & ors (2015)15 NWLR (pt 1482) 205 at 333 and ACN v. Lamido & ors (2012) 8 NWLR (pt 1303) 560 at 592.

Learned SAN for the appellant compared the entries in Exhibits P.1 to P.6 and the ticking in the voters Register to show that the total votes cast were more than the number of accredited voters in each polling unit. He also argued

that there are no indications of the number of accredited voters, ballot papers issued in Exhibit P.1 to P.6 and that these details are required to confirm the integrity of the polling unit results. The Learned SAN further argued that Since the finding by the Tribunal on the issue of the holding of election was based on the presumption allegedly arising from the certification of the unit results, the Tribunal had a duty to consider the validity or otherwise of the said documents in order to fairly decide if they can justify a decision that they rebutted the presumptions of correctness arising from Certified True Copies of the declared final results Forms EC8D(ii) and EC8E(ii).

He also argued that the holding of the Tribunal that the several anomalies on the face of the voters Registers are not conclusive proof that the elections did not take place in the seven polling units in Nsugbe Ward 1 is perverse, did not state what amounted to anomalies and did not adequately consider the obvious effect of the above discrepancies. Learned SAN submitted that there is no portion of the Evidence Act that provides for the presumption of regularity of the

acts of the 8th respondent and that by virtue of S. 146(1) of the Evidence Act the only presumption that flows from the certification of the unit results is that the document is genuine, that sufficient evidence was adduced to rebut any presumptions that would have inured in favour of Exhibits P.1 to P.6 and that 1st respondent did not prove that elections took place in the 7 polling units in Nsugbe Ward 1.

Learned Counsel for the 1st respondent conceded that the 1st respondent as the petitioner who asserted that the said elections held has the primary burden to establish the assertion, that this he did by calling at least one voter from each polling unit to testify on what he witnessed on election day in the polling unit, by tendering certified copies of the polling unit result form EC8A(II), and by tendering the voters register to show accreditation and voting through ticking on it.

I agree with the submission of Learned Counsel for the 1st respondent that the 1st respondent established the holding of the elections in the seven polling units of Nsugbe Ward 1 by tendering the certified copies of the polling units results, Exhibits P.1 to P.6 and the

collated ward results, Exhibit P.9, by calling at least one voter from each of the polling unit to testify that he voted in the election that held in that unit and by tendering the voters register that was used in that election with tickings therein as evidence of its use for that election.

It is not in dispute that Exhibits P.1 to P.9 are certified copies of election results for polling units 001, 002, 004, 005, 006, 007 and 008 and the ward collated results for Nsugbe Ward 1 which were produced from the custody of the 8th respondent and certified by it as coming from its custody. It is not in dispute that the said results are in the official forms of the 8th respondent designated for the record and entry of polling unit election results formEC8A(II) and ward summary of polling units results (form EC8A(II)). By the virtue of their certification by the 8th respondent, the Court is bound by S. 146 of the Evidence Act 2011 to presume that they are genuine until the contrary is proven. S. 146 provides that:
1. The Court shall presume every document purporting to be a certificate, certified copy or other document, which is by law declared

to be admissible as evidence of any particular fact and which purports to be certified by any officer in Nigeria who is dully authorised in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf.
2. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed it, the official character which he claims in such document.

The legal consequence of

the presumption of the genuineness and correctness of the forms EC8A(II) and EC8B(II) is that the fact of their genuineness and correctness must be regarded as proved until it is disproved. This is so by virtue of S. 145(2) of the Evidence Act 2011 which provides that:-
Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.

It would be contrary to S. 145(2) of the Evidence Act 2011 to require proof that elections held in the said polling units in the face of certified copies of the official result forms of the results of the said polling units, the genuineness of which the Court shall presume by virtue of S. 146 of the Evidence Act. The presumption of genuineness and correctness of the polling units and ward election results removes the burden to prove that the election that led to the results took place until the presumption is rebutted. See Buhari v. Obasanjo (supra) and Chime v. Ezea (2009)2 NWLR (pt 1125)230 at 342 where this Court held that the simple way to show that election held is to produce the results of the election. This Court

also held in Onuoha v. Akpolonu & ors (supra) that they are credible evidence that elections held at the polling units in respect of which results were entered therein.

It is glaring that the 1st respondent therein(petitioner) did not rely on only the election results to prove that the elections held. He called PW1 to PW6 as witnesses. These were voters who testified that the elections held in the polling units in question and that they voted in the said elections in their respective polling units. They produced their voters cards as Exhibits P.26 to P.29 and R.6. The 1st respondent tendered voters

register for the said polling units as Exhibits P.14 P22 and the respondents to the petition who are appellant and 2nd to 8th respondents herein tendered copies of the same voters registers for the same units as Exhibit R.28-R25. It is noteworthy that the appellant in comparing the votersregisters with the polling results forms EC8A(II) to show that the total votes cast entered in the result forms are more than accredited voters ticked in the voters registers acknowledged that the said voters registers were used for the said elections in the polling units and thereby confirmed that the elections held in those units. RW8, RW9 and RW10, witnesses for the appellant and the 2nd to 8th respondents herein at the trial proceedings, testified that the elections in the said polling units held and that the results in Exhibits P1 to P9 are the collated results of that election. RW8 is the 8th respondents Electoral Officer whose duty it was to receive election materials from election officials. RW10 was the 8th respondents collation officer for Nsugbe Ward 1 who collated the result in Exhibit P9. RW8 and RW10 testified that no form 40G

was filled or completed by any presiding officer stating that election did not hold in any polling unit and that this form is meant to be filled by a presiding officer in whose polling unit election did not hold. PW1 was the 1st respondents ward collation agent who testified that the presiding officers from each polling unit accompanied by the agent of each candidate submitted their results to the RW10 who collated same and all party agents signed same.

I do not agree with the submission of Learned SAN for the appellant that exhibits were dumped on the Tribunal without oral evidence called by the 1st respondent to relate them to any part of his case. As I have already held herein, the 1st respondent called PW1 to PW6 who identified their names as ticked in the register of voters as registered voters in the respective polling units. PW1 who was his ward collation agent who signed Exhibit P9 also testified about the collation of the results therein. PW1 to PW6 testified that election held in their respective polling units leading to the results in Exhibits P1 to P6. RW10, the 8th respondents ward collation officer who collated the results in Exhibit P9

testified that he received the polling unit results, Exhibit P1 to P6 and collated same into Exhibit P9.

It is clear from the foregoing that the Tribunal was right in holding that the respondents to the petition (appellant and 2nd to 8th respondents herein) had the burden to rebut the presumption of genuineness and correctness of the said election results. I also hold that in the light of the totality of the evidence elicited by the petitioner in support of his petition the evidential burden did shift to the appellant and 2nd to 8th respondents herein to disprove that elections held in the six polling units of Nsugbe Ward 1. Let me consider if they were able to discharge this evidential burden.

Let me straight away point out that the 3rd to 8th respondents in their reply did not deny that elections held in polling units 001, 002, 004, 005, 006, 007 and 008 of Nsugbe Ward 1 and did not deny the results from that election. They only explained in Paragraph 4 of their reply the reason for the failure to include the said results in the Anambra East Local Government Area of summary results thusly- ?In answer to Paragraphs 12 and 13 of the petition,

3rd to 8th respondents aver as follows:
(i) Owing to the fact that election commenced late in the polling units, the collation of the ward results, as it got late, was moved to the Local Government Headquarters for security reasons. In the process, an issue arose between the 3rd respondent (the returning officer) and the 4th respondent (the Anambra East Local Government collation Officer) whereby the former was insisting that the later should submit the collated result in form EC8C(II) so that the Constituency result would be collated and declared. The 4th respondent on the other hand, claimed that it was more prudent to allow more time and await the arrival of all the results in the residue of the polling units for the reason that the collation Agent of the petitioner made out a case that the petitioner was from Nsugbe out of which was created Nsugbe Wards 1 and II, and it was wrong to exclude results from his home town.
(ii) The wishes of the 3rd respondent prevailed and the 4th respondent submitted the results without results from most of the polling units in Nsugbe Wards 1 and II.

I agree with the submission of Learned Counsel for the

1st respondent that the 3rd to 8th respondents by their above reply admitted that elections held in those polling units and that they did not deny the results of the said elections in those units which were pleaded in the petition.

The appellant and 2nd respondent herein who contended that no elections held in those units and that therefore Exhibits P1 to P9 are false said nothing concerning the fact that their agent one Ayo Ifeka signed Exhibit P9, the collated ward result for Nsugbe Ward and the fact that Exhibits P2, P3 and P5 respectively bear the names of NwalunoNnamdi, NnabaChike and Obi Sunday and their signatures. There is no evidence that the appellant and 2nd respondent therein disowned them as their agents or submitted any contrary list of their polling agents to the 8th respondent. Without disowning these persons as their polling unit agents and ward collation agent, the appellant and the 2nd respondentherein cannot deny the authenticity and correctness of the said results. See Mark v. Abubakar (2009)2 NWLR (pt 24), Gundiri v. Nwake (2014)2 NWLR CPT 1391)211 at 221.

Learned SAN for the appellant argued that sufficient evidence was adduced to

rebut any of the said presumptions without pointing to the particular piece of evidence that was adduced by the appellant to rebut the presumptions.

RW8 and RW10, who were witnesses for the appellant and 2nd to 8th respondents testified that elections held and that Exhibits P.1 to P.9 are the results of that election.

In the light of the foregoing it is glaring that the respondents to the petition failed woefully disprove the presumption of genuineness correctness of the result and failed to disprove the fact that elections held in the six polling units of Nsugbe Ward1.
What is left to be considered is whether the Anambra East Collation Officer and the Constituency Returning Officer were justified in refusing to include the collated result in Exhibit P.9 in the Anambra East Local Government summary result form EC8C(II) and justified in excluding the total votes cast in the elections in the six polling units of Nsugbe ward 1 from the sum total of the lawful votes cast in the constituency.

The Tribunal decided this issue thusly:- Having said that, there was no genuine reason for the returning officer not to collate the results coming

the Nsugbe Wards. It is not for him to act on his whims and caprices. Having been told some results were being awaited, the best he could have done in the circumstance was to await the arrival of the results and if he had any genuine reason for rejecting them, he then could have done so and present a report to higher electoral authorities. The manner he, as alleged dismissed the plea to tarry a while for the arrival of more results which were not previously collated, portray him to be a very hasty fellow at best or at worst someone who had a hidden agenda.
His action if it can be reasoned out at all, was like that of a usurper of the power of the election Tribunal to adjudicate on electoral disputes. It was not for him to make assumptions about the genuiness of the results. In fact from the evidence before this Tribunal there was no reason for his action at all or at least there is no evidence of that. Though a party in this petition, he has conveniently stayed away from the proceedings maybe in remorse for his action or probably because he has a penchant for nonchalance.?

?I agree with the views expressed by the Tribunal. It is glaring from

Paragraph 4 of the 3rd to 8th respondents reply that the Anambra East Local Government Collation Officer had not finished collating the Anambra East Local Government summary of results from the wards and had not submitted the said local government summary of results to the constituency returning officer because he was still waiting for the return of the results of election in the said six polling units of Nsugbe Ward 1. The constituency returning officer prevailed upon him to submit the uncompleted summary of results in spite of the fact that the said collation officer said he was still waiting for results from the six polling units of Nsugbe Ward 1 and in spite of the fact that the said collation officer did not receive or file any written report that elections in those units did not hold. The power vested in a returning officer by S. 68 of the Electoral Act to decide any question arising from or relating to unmarked ballot paper, rejected ballot paper and the declaration of scores of candidates and the return of a candidate does not enable him to compel or prevail upon a collation officer who has not concluded collation of results and is awaiting

return of more results, to submit an uncompleted summary of results to him. He has no such power. A collation or returning officer has no power to refuse to accept and collate a polling unit result for the mere reason that it arrived late. A presiding or collation or returning officer has no power to exclude any lawful votes cast in an election from being included in the total votes cast in that election. The 3rd and 4th respondents had no justification for refusing to collate the election results from the said polling units in the election result summary for Anambra East Local Government Area and submitted for collation of same by the Constituency Returning Officer. As this Court held in Nwokolo v. Oboli (2012)7 NWLR (pt 1330)610- “Apart from the bald evidence of PW1, that the results came late, there was no evidence that the collation of the result was disrupted or made impossible. Malpractices and fraud were not set for the returning officer to determine but for the Tribunal to determine in an election petition challenging an election.
A returning officer should, therefore, not act capriciously contrary to the law governing the conduct of an

election for which the 3rd respondent is responsible and expect not to wallow in such capriciousness and illegality.”

In the light of the foregoing, issues 1, 2, 3, 4, are resolved in favour of the respondents.
On the whole this appeal fails as lacks merits. It is accordingly dismissed. The judgment of the Anambra State National and State Houses of Assembly Election Tribunal delivered in EPT/AWK/HR/09/15 on the 12/10/2015 is hereby affirmed and upheld. The appellant shall pay cost of N100,000 to the 1st respondent.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the draft of the judgment rendered by my learned brother EMMANUEL AKOM AGIM, JCA. I agree with the reasoning and conclusion therein which culminated in the dismissal of the appeal.
Therefore, the judgment of the Anambra State National and State Houses of Assembly Election Petition Tribunal, holden at Awka in re-EPT/AWK/HR/09/15, delivered on 12th October, 2015 is accordingly affirmed.

I, too award N100,000 cost against the appellate, in favour of the 1st Respondent only.

MISITURA OMODERE BOLAJI-YUSUF, J.C.A.: I agree.

Appearances:

Ken E. Mozia, Esq. (SAN) with him, A.C. Anaenugwu (SAN) O.L. Udemezue, Esq. and C.N. Madubueze, Esq.
For Appellant(s)

Chief Olusola Oke with him, Chief Olajide Ajana, Emenike Ikoro Esq., Aniagbaoso Pius, Ofoegbunam, Esq., Ofoegbunam Chijioke, Esq.,Debo S. Ikuesan Esq., for 1st respondent
Ikenna Amaechi, Esq., with him, B.B.M. Maduekwe, Esq., J.O. Igiebor Esq., S.C. Udemezue Esq., Sylvester Odili, Esq. for 2nd respondent.
Ibrahim K. Bawa (SAN) with T.M. Inuwa Esq., Nnamdi Nwaeze Esq., Alhassan A. Umar Esq., Rahima Aminu (Mrs), Ahmed Goni Ismai Esq. and I.S. Mohammed Esq. for 3rd ? 8th respondents.
For Respondent(s)

Appearances

Ken E. Mozia, Esq. (SAN) with him, A.C. Anaenugwu (SAN) O.L. Udemezue, Esq. and C.N. Madubueze, Esq.For Appellant

AND