ESSON MAIRIGA & ANOR v. MOHAMMED IBRAHIM ALKALI & ORS (2019)

ESSON MAIRIGA & ANOR v. MOHAMMED IBRAHIM ALKALI & ORS

(2019)LCN/13779(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of September, 2019

CA/MK/EPT/HA/15/2019

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. ESSON MAIRIGA
2. PEOPLES DEMOCRATIC PARTY Appellant(s)

AND

1. MOHAMMED IBRAHIM ALKALI
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

RATIO

DEFINITION OF A VAGUE GROUND OF APPEAL

The word ?Vague? is defined in Blacks? Law Dictionary, 10th Edition at page 1783 as:
?Imprecise or unclear by reason of abstractness; not sharply outlined; indistinct; uncertain.?
In addition, several decisions have been rendered by Courts, chiefly the Supreme Court, on what it means to describe Grounds of Appeal as vague. A sum total of these decisions show that a ground of appeal is considered vague where it is couched in a manner which is not explicit and therefore leads to a difficulty in understanding or causing the meaning to be uncertain. A ground could also be considered vague when the complaint is not defined in relation to the subject matter or where it is not particularized or where the particulars are manifestly irrelevant to the ground. Thus, a ground of appeal is vague where it is imprecise, not cogent, not concise and capable of being misunderstood. See CBN V Okojie (2002) LPELR-836(SC) 11-12, F-A; Agwu V Julius Berger (Nig) Plc (2011) LPELR-4731(CA).
Order 7 Rule 3 of the Court of Appeal Rules, 2016 requires a ground of appeal to be precise and accurate. However, that does not mean that any slight infraction shall render the ground incompetent. The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant?s complaint against the Judgment complained against. The rules relating to the drafting of grounds of appeal are designed to ensure fairness to the opposing side. Therefore, no Court worth its mettle will rely on mere technicalities to shut out an intending Appellant.
?Thus, the essence of a ground of appeal is to give notice to the adverse party of what he should expect to meet at the appellate Court. Once it is fully understood by the opponent, it cannot be declared incompetent. PER SANKEY, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF LIES ON THE PARTY WHICH DISPUTES THE CORRECTNESS AND AUTHENTICITY OF THE RESULTS OF AN ELECTION TO LEAD REBUTTAL EVIDENCE

There is a rebuttable presumption that the result of an election declared by INEC, an official body, is correct. The presumption of regularity inures to it and the maxim in law is omnia praesummatur rite esse acta, that is, all things are presumed to have been correctly done. See Section 168(1) of the Evidence Act, 2011 (as amended); and SeaMarine Int. Ltd V Ayetoro Bay Agency (2015) LPELR-24785(CA) 28-28, per Augie, JCA (as he then was); CITEC Int. Estate Ltd V Francis (2014) LPELR-22314(SC) 444, B-E, per Kekere-Ekun, JSC; Shitta-Bey V AG Federation (1998) LPELR-3055(SC) 54-55, per Onu, JSC Aliyu Bello V AG Oyo State (1986) 12 SC 1.
The burden lies on the party which disputes the correctness and authenticity of the result to lead rebuttal evidence. If the party, namely the Petitioner, succeeds in adducing rebuttal evidence, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his opponent to prove that the fact established by the evidence of the Petitioner would not result in the Court giving Judgment in favour of the Appellant. Where the Petitioner fails to lead rebuttal evidence or sufficient rebuttal evidence, there is even no need to consider the evidence or case of the Respondent. See Buhari V Obasanjo (2005) 13 NWLR (Pt. 941) 1, 122 & 309-310. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): Election was held for the Lafia North House of Assembly seat in Nasarawa State on 9th March, 2019. Several persons contested the election on various platforms. In particular, the 1st Appellant contested on the platform of the 2nd Appellant, the Peoples Democratic Party (PDP) and the 1st Respondent contested on the platform of the All Progressives Congress (APC). The election was conducted by the Independent National Electoral Commission (INEC), 3rd Respondent herein. At the close of polls, the 3rd Respondent declared the 1st Respondent as the winner of the election. Dissatisfied with this declaration, the 1st and 2nd Appellants approached the Nasarawa State National and State Houses of Assembly Election Tribunal sitting in Lafia vide a Petition filed on 30th March, 2019 seeking for several declaratory Orders, foremost amongst which was the declaration that the 1st Appellant (and not the 1st Respondent) scored the highest votes in the election and so should be declared the winner at the election. The detailed reliefs sought by the Appellants as Petitioners at page 10 of the

Record of Appeal are set out here below:
1.?AN ORDER that the 1st Respondent namely, Mohammed Ibrahim Alkali of the ALL PROGRESSIVES CONGRESS (APC), the 1st Respondent was not duly elected and/or returned.
2. AN ORDER nullifying the results of the election in respect of Polling Units affected by over-voting, inflation of votes and/or non-compliance with INEC Guidelines with respect to use of Card Reader.
3. AN ORDER that the Petitioners, particularly the 1st Petitioner be declared as duly elected and be returned as the winner with majority of lawful votes cast at the election having scored a total valid votes of 13, 387 as against the 1st Respondent who scored overall votes of 11, 468.
4. AN ORDER directing the 3rd Respondent to withdraw the Certificate of Return issued to the 1st Respondent.
5. AN ORDER directing the 3rd Respondent to issue a Certificate of Return to the 1st Petitioner.?

In apparent fulfilment of Section 138 of the Electoral Act, the Appellant in paragraph 8 of the Petition presented the Petition on the following ground:
?8. The Petitioners are aggrieved by the declaration and return of the

1st Respondent as the elected member of the Nasarawa State House of Assembly for Lafia North Constituency thereby contending that the 1st Respondent did not score majority of lawful votes.?

The Petitioners called four witnesses in proof of the allegations in their Petition and tendered 43 exhibits. The 1st Respondents called two witnesses and the 2nd and 3rd Respondents did not call any witness but rested their cases on the case of the 1st Respondent. At the close of their cases, the respective Counsel for the parties adopted their final written addresses and prayed the Court in line with the reliefs in their processes. Thereafter, in its Judgment delivered on 24th July, 2019, the Tribunal dismissed the Petition, holding that the Appellants failed to prove their Petition and therefore affirmed the election of the 1st Respondent as the House of Assembly Member representing the Lafia North Constituency of Nasarawa State. Yet again dissatisfied, the Appellants filed an Appeal to this Court on 11-08-19 vide their Notice of Appeal, wherein they complained on 18 grounds. Therein, they sought the following reliefs:
a. ?AN ORDER allowing the

Appeal.
b. AN ORDER setting aside the decision of the Tribunal delivered on the 24th July, 2019.
c. AN ORDER declaring the 1st Petitioner as the winner of the election held on the 9th March, 2019 for Lafia North State Constituency having won by majority of the lawful votes cast.?

At the hearing of the Appeal on 10th September, 2019, learned Counsel for the 1st Respondent, Mr. Matthew Burkaa, drew the attention of the Court to the Notice of preliminary objection he had incorporated in paragraphs 2.0 to 2.7 at pages 4 to 10 of the 1st Respondent?s Brief of argument settled by Matthew G. Burkaa, Esq. With the leave of Court, he proceeded to argue the objection by adopting the arguments therein. He urged the Court to uphold the objection and to strike out the Notice of Appeal for being incompetent. In response, learned Counsel for the Appellants, Mr. Ovye John, adopted the arguments contained at pages 1 to 12 of his Reply to the Preliminary objection in his Appellants? Reply Brief of argument settled by Ovye John, Esq., in urging the Court to overrule the objection and to determine the Appeal on its merit. Both learned Counsel for

the 2nd and 3rd Respondents, Mr. Aseku and Mr. A.I.T. Adams stated that they did not file any reply to the objection. Ruling on the Preliminary objection was thereafter reserved to be delivered alongside the Judgment.
?
Before proceeding to argue the Appeal, learned Counsel for the Appellants, Mr. Ovye John, withdrew the Appellants? Notice of Appeal filed on 25-06-19 (contained at pages 340 to 344 of the Record of Appeal) and same was struck out. In arguing the Appeal, the Appellants relied on the Notice of Appeal filed on 11-08-19 (contained at pages 511 to 528 of the Record). Mr. John adopted the arguments contained in the Appellants? Brief of argument filed on 28-08-19 and the Appellants? Reply Brief of argument filed on 05-09-19, both settled by Ovye John, Esq., in urging the Court to allow the Appeal and grant the reliefs sought in the Notice of Appeal. Counsel further contended that the 3rd Respondent?s Brief of argument was filed out of time because, whereas she was served the Appellants? Brief of argument on 29th August, 2019, she filed her Brief of argument on 3rd September, 2019 which made it one day out of the time

circumscribed by the Electoral Act. He therefore prayed the Court to discountenance the Brief on the ground of incompetence. Learned Counsel for the 3rd Respondent, Mr. A.I.T. Adams, promptly conceded and the 3rd Respondent?s Brief of argument was struck out on the ground of incompetence.

Thereafter, learned Counsel for the 1st Respondent, Mr. Matthew Burkaa, adopted the arguments contained at pages 10-28 of the 1st Respondent?s Brief of argument filed on 02-09-19 and settled by Matthew Burkaa Esq., in urging the Court to dismiss the Appeal and affirm the decision of the Tribunal. In like manner, learned Counsel for the 2nd Respondent, Mr. Ismail Idris Aseka, also adopted the 2nd Respondent?s Brief of argument filed on 02-09-19 and settled by Ismail Idris Aseku, Esq., in urging the Court to dismiss the Appeal for lacking in merit. The 3rd Respondent was effectively shut out of the Appeal, her incompetent Brief of argument having been duly struck out.

The Appellants in their Brief of argument distilled the following six issues for the determination of the Appeal by this Court:
1. Whether Exhibit P12 (Accreditation voters

figures/Report) was pleaded by the Appellants in view of the refusal of the lower Court to reckon with the identification of same by PW1, PW2 and PW3. (Distilled from Grounds 1, 2 and 3)
2. Whether the trial Tribunal was right in its holding that the evidence of the entire 4 witnesses of the Appellants is based on what they were told by their agents simply because they were tagged as polling units agents. (Distilled from Grounds 4, 5 and 17)
3. The Tribunal was not right to have examined and evaluated the documents tendered by the Appellants except Exhibit P14, P15, P16 and whether from the facts and evidence of this petition, the Appellants only pleaded accreditation by card reader, having regards to the pleadings of facts and figures of the voters? registers. (Distilled from Grounds 6, 7 and 8)
4. Whether in spite of the facts that all the documents tendered by the Appellants were identified and spoken to by the Appellants? witnesses, same can be said to have been dumped. (Distilled from grounds 9 and 10)
5. Whether there were sufficient findings to support the decision of the trial Tribunal when they held that the election

result and return as declared by the 3rd Respondent is correct in the absence of contrary proof. (Distilled from Grounds 11, 12, 14, 15, 16 and 18)
6. Whether the trial Tribunal was right when it ignored, refused, neglected and failed to evaluate the entire evidence in this Petition before reaching its decision. (Distilled from Ground 13)

On his part, the 1st Respondent, in his Brief of argument, identified the following two issues as arising for determination from the Grounds of Appeal:
1. Whether the lower Tribunal was not right in law when it dismissed the Appellants? Petition on the grounds that the Appellants did not prove the allegations contained in the Petition to be entitled to the reliefs sought. (Distilled from Grounds 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, 16, 17 and 18)
2. Whether the lower Tribunal was not right in law when it held that the exhibits tendered by the Appellants lacked probative value on the grounds that they were either not pleaded or out-rightly dumped on the Tribunal. (Distilled from Grounds 1, 2, 3, 9 and 10)
?
As aforesaid, learned Counsel for the 3rd Respondent had nothing to offer since the 3rd

Respondent?s Brief of argument had been struck out on the basis of incompetence.

After giving due consideration to the issues crafted by the respective learned Counsel for the Parties vis-a-vis the Grounds of Appeal, I am of the view that the following two issues will serve to effectively and completely determine the Appeal:
1. Whether or not the Tribunal was right when it discountenanced the PW3?s identification of Exhibit P12, the Card Reader Information Sheet.
2. Whether or not the Tribunal was right to dismiss the Petition on the basis that the Appellants failed to discharge the burden of proof on them.

PRELIMINARY OBJECTION
Before addressing the substantive Appeal however, it is incumbent on this Court to consider and pronounce on the merit or otherwise of the preliminary objection raised by the 1st Respondent to the hearing of the Appeal. At page 4 of the 1st Respondent?s Brief of argument, the following were set out as the grounds upon which the objection is based:
i. Grounds 1-17 of the Appellants? Notice of Appeal are vague, general in terms and discloses no reasonable ground of Appeal and are

therefore incompetent and liable to be struck out.
ii. Grounds 1, 2 and 3 relates to a decision of the Lower Tribunal rendered on the 19th day of June, 2019 and are therefore filed out of time without any prayer for an extension of time.
iii. By reason of (ii) above, issue 1 formulated from those grounds is incompetent.
iv. The Appellants issue two is incompetent as it did not arise from the grounds of Appeal or from the Judgment of the Lower Tribunal.
v. The Appellants? issue 3 distilled from grounds 6, 7 and 8 is incompetent for being a statement in support of the Judgment of the Lower Tribunal instead of an issue in controversy requiring the determination of this Court.

In respect of ground one of the objection, Counsel submits that Ground 1-17 of the Grounds of Appeal are laboriously lengthy which makes them prolix and discursive. As a result, the grounds are vague, general and do not disclose reasonable grounds of complaint and so offend against Order 7 Rule 2(3) of the Court of Appeal Rules, 2016. He also submits that since issue 5 is crafted from the sole remaining ground, ground 18, in addition to the other vague grounds

complained of, it has equally been rendered incompetent. Therefore, relying on the decision in A.E. Bright Futures Motors Nig. Ltd V Chizoba (2017) LPELR-42828(CA) 12-13, D-E, Counsel urged the Court to strike out the grounds for being incompetent.

On ground two of the objection, Counsel invited the Court to strike out grounds 1, 2 and 3 and issue 1 formulated therefrom as they relate to a decision of the Tribunal delivered on 19-06-19. The complaints against the decision incorporated into this Appeal against the Judgment were filed on 11-08-19, 54 days after the decision complained against was rendered. It was therefore filed outside the time prescribed by Section 143(1) and (2) of the Electoral Act, 2010 (as amended) for filing an Appeal, which is 14 days.
?
On ground three of the objection, Counsel argues that issue 2 distilled from Grounds 4, 5 and 17 is incompetent as it does not arise from the grounds, in that the lower Court did not find that the evidence of the Appellants? four witnesses was discountenanced because they were tagged polling units agents. Instead, the testimonies of the witnesses were held to be hearsay, as evidence from

Ward Collation agents. Therefore, since the issue does not attack any portion of the Judgment and does not arise from the grounds of appeal, it is incompetent and should be struck out.

On ground four of the objection, Counsel submits that issue 3 as crafted is not an attack on the decision of the Tribunal, but is in support of it. Therefore, it should be struck out. Finally, the Court is urged to uphold the preliminary objection and strike out the Appeal.

In response, Mr. John, learned Counsel for the Appellants, argues that Grounds 1-17 of the Grounds of Appeal are concisely and distinctively drafted and also numbered consecutively. They disclose reasonable grounds from the Judgment in accordance with Order 7 Rule 2(3) and 3 of the Court of Appeal Rules, 2016. The grouse of the Appellants set out therein are explicit, sufficiently clear and the 1st Respondent did not in any way misunderstand them. Reliance is placed on CBN V Okojie (2002) LPELR-836(SC) 11-12, F-A; Agwu V Julius Berger (Nig) Plc (2011) LPELR-4731(CA).

Counsel however submits that assuming without conceding that the grounds of appeal are inelegant, Courts are enjoined to

make the best they can to use them in the interest of justice ? Waziri V Geidam (2016) 11 NWLR (Pt. 1523) 230, 256-257, B-E. He therefore urged the Court to hold that grounds 1-17 have disclosed reasonable grounds of appeal and are competent.

On ground two of the objection, Counsel submits that an Appellant can incorporate his Appeal against an interlocutory decision simultaneously with the final decision – Omwubuariri V Igboasoyi (2011) LPELR-754(SC); Patani V Ibedangha (2018) LPELR-44789(CA). Therefore, the decision of the Tribunal rendered on 09-06-19 has become a part of its final decision. It is competent to be appealed against without any leave or extension of time so far as the Appeal against the final decision is filed within time.
?
On ground three of the objection, Counsel contends that indeed the Appellant, in setting out issue two, omitted to insert the word ?not? in a crucial part of the issue. However, this omission is immaterial since the Appellants still properly re-stated the issue at the beginning of the argument under the same issue two. Consequently, despite the typographical error, the issue is clear and the

arguments thereon are well set out in the Brief of argument. In addition, Counsel submits that the typographical error can be corrected before the adoption of Briefs. Reliance for this course of action is placed on South Atlantic Petroleum Ltd V Minister of Petroleum Resources (2013) LPELR-21892(SC) among other decisions cited.

On ground four of the objection, Counsel again contended that the Appellants unintentionally and inadvertently omitted the word ?whether? which was supposed to preface the sentence under issue 3. If this is corrected upon application, which they erroneously purported to make in their Brief, it will take care of this ground of objection, which they described as trivial. In respect of the 1st Respondent?s contention that the evidence of PW3 amounts to evidence against interest, Counsel adopts his arguments proffered under issue three in the Appellants? Brief as part of his submissions herein. He finally urged the Court to dismiss the preliminary objection for being frivolous.
?
Learned Counsel for the 2nd Respondent, in aligning with the submissions of the 1st Respondent, argues this objection under issue

one for determination. He submits that the Appellants failed to file an Appeal against the Ruling delivered on 19-06-19. Relying on Section 25 of the Court of Appeal Act which provides for 14 days within which to Appeal against an interlocutory ruling of a trial Court, he submits that the complaint contained in Grounds 1, 2 and 3 and the issue distilled therefrom are incompetent – Kakih V PDP (2015) All FWLR (Pt. 764) 45, C-D.

Findings on the Preliminary objection –
From the onset, since the first ground of attack against Grounds 1-17 of the Grounds of Appeal is that they are vague, it is imperative to understand the import of the word. The word ?Vague? is defined in Blacks? Law Dictionary, 10th Edition at page 1783 as:
?Imprecise or unclear by reason of abstractness; not sharply outlined; indistinct; uncertain.?
In addition, several decisions have been rendered by Courts, chiefly the Supreme Court, on what it means to describe Grounds of Appeal as vague. A sum total of these decisions show that a ground of appeal is considered vague where it is couched in a manner which is not explicit and therefore leads to a

difficulty in understanding or causing the meaning to be uncertain. A ground could also be considered vague when the complaint is not defined in relation to the subject matter or where it is not particularized or where the particulars are manifestly irrelevant to the ground. Thus, a ground of appeal is vague where it is imprecise, not cogent, not concise and capable of being misunderstood. See CBN V Okojie (2002) LPELR-836(SC) 11-12, F-A; Agwu V Julius Berger (Nig) Plc (2011) LPELR-4731(CA).
Order 7 Rule 3 of the Court of Appeal Rules, 2016 requires a ground of appeal to be precise and accurate. However, that does not mean that any slight infraction shall render the ground incompetent. The whole purpose of a ground of appeal is to give sufficient notice and information to the respondent of the precise nature of the appellant?s complaint against the Judgment complained against. The rules relating to the drafting of grounds of appeal are designed to ensure fairness to the opposing side. Therefore, no Court worth its mettle will rely on mere technicalities to shut out an intending Appellant.
?Thus, the essence of a ground of appeal is to give

notice to the adverse party of what he should expect to meet at the appellate Court. Once it is fully understood by the opponent, it cannot be declared incompetent. The Respondents have not complained that they do not understand the meaning conveyed in the grounds. I have read through the entire grounds 1-17 of the Grounds of Appeal complained of and I find them unambiguous and not misleading in any way. While the grounds could have been better crafted, their inelegance and clumsiness cannot lead to the Court acquiescing to the application of the Respondents to label them incompetent and thus, to strike them out. Instead this Court is enjoined to do the best it can to use them in the determination of the Appeal in the interest of substantial justice.
In Waziri V Geidam (2016) 11 NWLR (Pt. 1523) 230, 256-257, E-A, & 281, B-E, the Supreme Court held:
?The current mood of the Supreme Court to technicalities has been obvious. The Courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice. Consistent with this libertarian trend, so where sufficient particulars can be gleaned from

the grounds of appeal in question and the adversary and the Court are left in no doubt as to the particulars on which the grounds are founded. Hence, bad or defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent…
The fact that a ground of appeal is argumentative and repetitive is not sufficient to deny the appellant his right of appeal when on the face of the ground of appeal notable issue arises for consideration by the Court. The principal duty of the Court is to do justice. The Supreme Court will always make the best that it can, out of a bad or inelegant ground or brief, in the interest of justice. In the instant case, although the grounds were inelegantly couched and prolix, the substance of the appellants? complaints were clear, and were against the ratio of the judgment of the Court of Appeal.?
In the instant Appeal, Grounds one, two and three are clearly complaints against the decision of the Tribunal refusing the identification of Exhibit P12 by the PW3, therefore failing to give it any consideration in its final decision. The particulars of these grounds make the complaints

therein even more explicit and direct. Grounds four to seventeen of the Grounds of Appeal constitute complaints against the evaluation of evidence and the findings of the Tribunal in arriving at a decision that the Appellants failed to prove the allegations in their Petition to warrant the grant of their reliefs that the 1st Respondent was not elected by majority of the votes scored at the election.
Therefore, I agree with the Appellants that the grounds complained against are not unintelligible or incapable of being understood. The grounds, when read together with their particulars, deliver the gist or essence of the complaints against the decision of the Tribunal. Also, the Respondents, having extensively answered the complaints in their respective Briefs of argument, show that they have sufficiently understood the complaints in the grounds and have not in any way, been misled. Thus, notwithstanding the fact that the said Grounds of Appeal are prolix and inelegant, the complaints were decipherable, understandable and constitute complaints against the ratio of the Judgment of the Tribunal. They are therefore not incompetent.

In respect of the second ground of objection contending that Grounds one, two and three of the grounds of Appeal which complain that the Appeal against the decision of the Tribunal delivered on 19th June, 2019 was filed out of time, it is trite law that an Appellant can incorporate an Appeal against an interlocutory decision in the final decision of a Court/Tribunal. In this instance, the interlocutory decision referred to was the refusal of the Tribunal to allow the identification of Exhibit P12 by PW3 after it had been tendered in evidence. Two options were open to the aggrieved Appellants, namely: (1) either to proceed to appeal against the decision straightaway or (2) to bide their time and await the conclusion of trial and delivery of Judgment, before proceeding to file an all inclusive and comprehensive Appeal. Courts, especially in these sui generis proceedings in election matters, have always preferred and actively encouraged the latter position. See Patani V Ibedangha (2018) LPELR-44789(CA). Thus, based on decided authorities on the point, the Respondents are on a sticky wicket on this ground of objection.
?This is even more so that a decision made by a trial

Court/Tribunal on the wrongful admission/identification or wrongful rejection of evidence is part of the main trial and not an interlocutory decision, unless a special case has been made in respect of the issue. Consequently, it is permitted that a party wishing to appeal against the Judgment of the trial Court/Tribunal can frame and couch one of the grounds of appeal alleging that the Court/Tribunal erred when it admitted inadmissible evidence or rejected admissible evidence.
?In the instant case, even though the Tribunal admitted the Exhibit P12 tendered in evidence from the Bar, it refused the application for the witness to identify it. It was therefore only prudent and right for the Appellants to await the final decision of the Tribunal before they brought up all their grievances against its decision, instead of filing piece-meal appeals, which would ultimately lead to a waste of precious judicial time for all concerned, as well as entail unnecessary expenses for litigants. By the same token, the Appellants did not therefore need prior leave of Court to appeal against the said decision, so long as the appeal against the final decision was filed within

time. Thus, Grounds one, two and three of the Grounds of Appeal are competent and by extension, issue one distilled therefrom.

In respect of grounds three and four of the objection, I agree with the Appellants that the Respondents have misconceived the purport of the issues due to the omissions of certain key words used in framing the issues. This has since been taken care of by the oral application made by the Appellants at the hearing of the Appeal on 10-09-19, to insert the missing words, ?not? in issue two and preface issue three with the word ?whether?. This application was granted without any objection from the Respondents. The issues therefore now read thus:
?2. Whether the trial Tribunal was right in its holding that the evidence of the entire 4 witnesses of the Appellants is based on what they were told by their agents simply because they were not tagged as polling units agents. (Distilled from Grounds 4, 5 and 17)
3. Whether the Tribunal was not right to have examined and evaluated the documents tendered by the Appellants except Exhibit P14, P15, P16 and whether from the facts and evidence of this

petition, the Appellants only pleaded accreditation by card reader, having regards to the pleadings of facts and figures of the voters? registers. (Distilled from Grounds 6, 7 and 8).? (Emphasis supplied)

Since the typographical errors implicit in the Appellants? issues two and three for determination have since been corrected and incorporated as above, the complaints in these two grounds of objection have been overtaken by events.

Therefore, in view of all the above findings, I find the preliminary objection targeted against the 18 grounds of Appeal and the issues distilled therefrom, without merit. It is accordingly overruled.

SUBSTANTIVE APPEAL
Issue one – Whether or not the Tribunal was right when it discountenanced the PW3?s identification of Exhibit P12, the Card Reader Information Sheet.

Learned Counsel for the Appellant submits that on 19-06-19, the Tribunal overruled the identification of Exhibit P12 by PW3. He argues that in Election Petitions by virtue of Paragraph 5 of the First Schedule to the Electoral Act, 2010, only relevant facts are pleaded and not evidence – Arabambi V A.B. Ind. Ltd

(2006) 8 WRN 1, 38. Thus, the Appellants pleaded Exhibit P12 in paragraphs 21, 23 and 24 of the Petition and thereafter set it out as number 4 in the List of documents in the Petition. Evidence of same was also given in paragraph 7 of the Witnesses Statements on Oath of the PW1, PW2 and PW3, as well as paragraphs 16 and 17 of the PW4?s Witness Statement on Oath. He therefore contends that the Tribunal was wrong to have sustained the objection of the 1st Respondent and overruled the identification of the document by the witness.

In addition, Counsel contends that facts in respect of Exhibit P12 tagged ?Voters accreditation figures/records? were pleaded in paragraph 24 of the Petition; and the PW3 in his evidence referred to it as ?Card Reader accreditation information received from the 3rd Respondent? and that there is no difference between the two. However, assuming without conceding that the Appellants referred to the Card Reader machine in their Petition, by the rules of pleadings in election matters, subordinate facts are not to be pleaded but material facts. Thus, any information sourced out from the card reader machine

becomes subordinate facts which the Petitioners are not expected to plead in their pleadings ? Otuo V Nteogwuile (1996) 4 NWLR (Pt. 440) 56, 71-72; Ojoh V Kamalu (2005) 12 SCNJ 236. Counsel therefore submits that the Tribunal was wrong when it refused the identification of Exhibit P12 by the Appellants? witnesses, and this has occasioned a miscarriage of justice.

The 1st Respondent in response submits that the Appellants? case which was predicated wholly on accreditation by Card Reader could not have been sustained because the said Card Reader information tendered from the Bar as Exhibit P12 was never identified, touched, referred to or used by any of the Petitioners? witnesses at the Tribunal. The document was simply dumped and so the Tribunal was correct when it held that it had no power to look at the Exhibit P12 or use it in any way. Reliance is placed on Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507, 558-559, G-C; & Okereke V Umahi (2016) 2-3 SC (Pt. 1). In addition, from the evidence of DW2, the Exhibit P12 is in respect of the Governorship election in Nasarawa State and not the House of Assembly election in contention.

Exhibit P12 was therefore not admissible. Also, the Appellants simply brought documents to Court and did not demonstrate the applicability of the documents to the complaints. They were simply dumped.

Counsel further submits that Exhibit P12 was neither pleaded in the Petition nor mentioned in any of the Petitioners? Witnesses Statements on Oath. Instead it was the Card Reader simpliciter that was pleaded. He argues that Card Reader Information is different from the Car Reader Machine. However, assuming that the Appellants pleaded the Card Reader Information as claimed, Exhibit P12 has no correlation to the election the subject matter of the Appeal since it was in respect of the Governorship Election and therefore irrelevant.

Learned Counsel for the 2nd Respondent, on his part, submits that PW1, PW2 and PW3 who were Ward Collation Agents, were not the makers of Exhibit P12 neither were they present when the documents were made. On the authority of Andrew V INEC (2018) 9 NWLR (Pt. 1625) 557, E-F, he submits that the Tribunal was right to have overruled the identification of Exhibit P12 by the Appellants? witnesses.
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Findings –
There is a rebuttable presumption that the result of an election declared by INEC, an official body, is correct. The presumption of regularity inures to it and the maxim in law is omnia praesummatur rite esse acta, that is, all things are presumed to have been correctly done. See Section 168(1) of the Evidence Act, 2011 (as amended); and SeaMarine Int. Ltd V Ayetoro Bay Agency (2015) LPELR-24785(CA) 28-28, per Augie, JCA (as he then was); CITEC Int. Estate Ltd V Francis (2014) LPELR-22314(SC) 444, B-E, per Kekere-Ekun, JSC; Shitta-Bey V AG Federation (1998) LPELR-3055(SC) 54-55, per Onu, JSC Aliyu Bello V AG Oyo State (1986) 12 SC 1.
The burden lies on the party which disputes the correctness and authenticity of the result to lead rebuttal evidence. If the party, namely the Petitioner, succeeds in adducing rebuttal evidence, he is said to have discharged the burden of proof that rests on him. The burden then shifts to his opponent to prove that the fact established by the evidence of the Petitioner would not result in the Court giving Judgment in favour of the Appellant. Where the Petitioner fails to lead rebuttal evidence or sufficient rebuttal

evidence, there is even no need to consider the evidence or case of the Respondent. See Buhari V Obasanjo (2005) 13 NWLR (Pt. 941) 1, 122 & 309-310. The burden was therefore on the Appellants to lead credible evidence to rebut the presumption of correctness of the return of the 1st Respondent by the 3rd Respondent as the winner of the election.

The starting point in this issue must be an examination of the proceedings of the Tribunal leading to the refusal of the application for PW3 to identify Exhibit P12. During the testimony of PW3 on 19-06-19, Learned Counsel for the Appellants attempted to have him identify certain Exhibits already tendered from the Bar, including Exhibit P12. Learned Counsel for the 1st Respondent raised an objection on three grounds as follows:
(1) That the Petitioners did not plead the card reader information sheet in their Petition;
(2) That the witness did not refer to the card reader information sheet in his Witness Statement on Oath. Instead, he referred to the Card Reader simpliciter. Counsel therefore submitted that the Card Reader is distinct from a Card Reader Information Sheet, as the former is a machine

and the latter is a document. He relied on Paragraph 41(3) of the First Schedule to the Electoral Act, 2010, (as amended) to submit that the witness is limited to the evidence given in his written deposition;
(3) That by paragraph 7 of the PW3?s Witness Statement on Oath deposed to on 30-03-19, the witness referred to facts in respect of an incident that occurred on 09-03-19. However, Exhibit P12 was generated on 10-04-19 and certified on 25-05-19.

In response, the Appellants? Counsel argued that the document in question was pleaded in paragraph 24 of the Petition, which he contends is in pari materia with paragraph 7 of the witness? Statement on Oath; and that the Appellants thereby pleaded facts and not evidence as required by law.

In ruling on the objection, the Tribunal held as follows at page 471 of the Record of Appeal:
?For the second reason adduced by the 1st Respondent?s counsel in objection to identification of Exhibit P12 by the witness, we hereby sustain the objection and overrule the identification of the said document by the witnesses.?
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By this finding, it is manifest that the

objection to the identification of Exhibit P12 by the PW3 was anchored on the fact that the witness neither mentioned nor referred to the document, a Card Reader Information Sheet, in his Witness Statement on Oath.

By Section 41(3) of the First Schedule to the Electoral Act, 2010 (as amended), it is provided as follows:
?41(3) There shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.? (Emphasis supplied).

A cursory look at the PW3?s Witness? Statement on Oath is therefore called for at this stage. The Witness? Statement is contained at page 22 of the Record of Appeal, and paragraph 7 thereof referred to by both learned Counsel states as follows:
?7. That from the results of the following polling units namely, Shabu TA Gabus ? 003, Doka ? 010, LEA Pri. Sch I ? 015, which my party agents handed over to me show clearly that there was over voting at the polling units as shown in the table below having regard to the

accreditation on the card reader received from the 3rd Respondent…? (Emphasis supplied)
Paragraph 24 of the Petition referred to by the Appellants pleads thus (at page 7 of the Record):
?24. The results of three (3) polling units in this Electoral Ward namely Shabu TA Gabas 003, Doka 010, LEA Pri Sch I 015 show obvious cases of over voting on the Form EC8As of the polling units having regard to the Card Reader accreditation information received from the 3rd Respondent…? (Emphasis supplied)

By all the above, it is apparent that even though the Appellants in their Petition pleaded the Card Reader Information Sheet, their witness, PW3, never referred to it in his witness deposition to warrant showing him same for his identification. The witness neither linked the document to any part of his evidence nor did he speak to it. It was therefore on this basis that the Tribunal rightly upheld the objection by the Respondents to application for the PW3 to identify a document which was alien and a stranger to his evidence. In this, the Tribunal cannot be faulted.
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There is no gainsaying that the Card Reader, which is also referred

to as a Smart Card Reader (SCR) Machine in Paragraphs 10 and 11 of the Guidelines and Regulations for the Conduct of Elections 2019, is a machine, device, gadget, appliance, contraption, instrument or a piece of equipment; whereas a Card Reader Information Sheet is evidently a document generated from information contained in the Smart Card Reader (SCR) Machine. The two are as distinctly dissimilar as chalk and cheese. It therefore follows common sense that a witness cannot be asked to identify a document which, from the evidence in his own witness statement, he never mentioned existed. I have no reason to interfere with the finding of the Tribunal. I therefore resolve issue one against the Appellants.

Issue two ? Whether or not the Tribunal was right to dismiss the Petition on the basis that the Appellants failed to discharge the burden of proof on them.

Learned Counsel faulted the finding of the Tribunal that the evidence of the Appellants? witnesses is based on what they were told by their agents simply because they were not tagged as polling units agents. Relying on a number of authorities, including Ibrahim V Ogunleye (2012) 1 NWLR

(Pt. 1282) 489, 507, F-G, 508, C; & Sijuade V Oyewole (2012) 11 NWLR (Pt. 1311) 280, 312-313, G-B, he submits that when a witness gives direct evidence of what he saw, experienced or witnessed at the polling unit and did not only relay what some other persons informed him, such cannot be hearsay. Therefore, that the Tribunal was wrong to have shut its eyes to the evidence of these witnesses because from their evidence, they visited all the polling units in their respective wards.

Counsel submits that the Tribunal was in grave error when it held that the Appellants only pleaded accreditation by Card Reader. Instead, in proof of their pleadings that there were incidences of over-voting following lack of and improper accreditation, they pleaded all the Voters Registers used for the Lafia North Constituency election in paragraph 33(b) of the Petition and also in the Appellants? Reply to the 1st Respondent?s Reply to the Petition (page 233 of the Record). Finally, that the Appellants also pleaded Exhibit P12, being the overall records of accreditation carried out with the use of the Card Reader Machine. He contends that these processes and

documents were to show the real figures of accreditation.

Counsel submits that in addition, the Appellants tendered the Forms EC8A of all the 20 polling units where the Appellants alleged there was over-voting. They tabulated the figures of accreditation extracted from the Forms EC8A as sourced from the Card Reader and indicated the number of over-voting in each column for all 20 Polling Units. The over-voting tabulated was said to be a deduction drawn from the difference between the total votes cast and the total accredited votes as reflected in Exhibit P12. The shortfall in the votes was not found in the ticking reflected in the Voters Registers.

Furthermore, Counsel contended that the decision of the Tribunal is erroneous because the Appellants identified and tendered 14 Voters Registers marked Exhibits P1(a)-(j), (P2(a)-(c) and P13. In addition, in paragraph 3(a)-(f) of the Appellants? Reply Brief, they challenged the Respondents? contention that there was no failure of the Card Reader recorded and that there was no such ticking on the Voters? Registers to show the shortfall difference. He relies on Ikponmwosa V Egharevba (2009)

LPELR-4685(CA); & INEC V Oshiomole (2009) 4 NWLR (Pt. 1132) 607, 664, 678-679 to submit that what the Tribunal should have done was to examine the facts and figures contained in the available tables provided in the Petition as well as in the Witnesses? Statements on Oath, compare them with the Voters? Registers and the Forms EC8A to arrive at a decision.

Again Counsel submits that the PW1, PW2, PW3 and PW4 testified and identified documents relevant to their respective areas of testimony out of the 38 documents tendered at the commencement of hearing, which documents included Voters? Registers, Forms EC8A, Forms EC8B (1), Forms EC8C (1), Forms EC8E (1), INEC Regulations & Guidelines for the Conduct of Elections, Receipts of payment for certification of documents and Card Reader Information Report. He contends that all the documents were identified and properly linked to all the specific areas of complaint by the witnesses and they were duly cross-examined on them. He therefore contests the finding of the Tribunal that the documents were merely dumped on the Tribunal. He submits that the Tribunal should therefore have attached

weight to these Exhibits and the failure to do so caused a miscarriage of justice.

Counsel further submits that the Tribunal erred when it held that the Appellants failed to prove the Petition against the Respondents. He re-hashed in summary form the evidence of PW1, PW2 and PW3 in respect of the 20 polling units spread across Ashige, Adogi and Shabu/Kwandere Electoral Wards; especially the mathematical deductions made by the Appellants upon a comparison of the figures set out in the Forms EC8A with what Counsel referred to as the ?real? total number of accredited voters as authenticated by the Card Reader and contained in Exhibit P12. After the mathematical deductions of invalid votes ascribed to over-voting in those Polling Units, the Appellants arrived at 13, 387 votes for the Appellants and 11, 468 for the 1st Respondent. This therefore placed the Appellants as winners of the election. Counsel submits that the Appellants therefore proved their allegations of over-voting, yet the Tribunal failed to properly evaluate the evidence placed before it.
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Counsel contends that conversely, whereas the Appellants covered all the 20 polling

units in the three Electoral Wards of Ashige, Adogi and Shabu/Kwandere, the 1st Respondents two witnesses, DW1 and DW2 were the Constituency Collation Officer at the final stage of collation and the Ward agent at only Shabu/Kwandere Ward. He therefore submits that the Respondents did not offer a serious defence against the evidence adduced by the Appellants in Ashige and Adogi Wards. Nonetheless, that this was ignored by the Tribunal. Counsel thus argues that the Appellants required only minimal proof to succeed. He contends that contrary to the finding of the Tribunal, the presumption of correctness of the election result was rebutted since the 3rd Respondent failed to adduce evidence and speak to the results. Reliance is placed on Ukpo V Imoke (2009) 1 NWLR (Pt. 1121) 90, 149, D-E, 150-151, H-A, 163, G.

In addition, Counsel submits that the Tribunal failed to physically analyse and examine the evidence adduced in the Petition. It only mentioned and examined Exhibits P14, P15 and P16 out of 43 Exhibits tendered and identified by the Appellants witnesses. This, he submits, has caused a miscarriage of justice. Reliance was placed on

Uduma V Arunsi (2012) 7 NWLR (Pt. 1298) 55, 118, D-E, 106, D. The Court is therefore urged to resolve this issue in favour of the Appellants. In all, Counsel urged the Court to allow the Appeal, set aside the Judgment of the Tribunal and grant all the reliefs of the Petitioners contained in paragraphs 1 to 5 of the Petition.

In response, learned Counsel for the 1st Respondent submits that the Petition is predicated on a complaint of over-voting in 20 polling units. The complaint of the Appellants of over-voting was predicated upon a comparison of the results in Forms EC8A and the figures in the Card Reader. Since the case of the Appellants was built on accreditation by Card Reader, Counsel referred to the accreditation and voting procedure as set out in the ?Approved Regulations and Guidelines for the Conduct of Elections 2019? issued by INEC. Counsel submits that no election can be said to be conducted without proper accreditation as it is the foundation of a free and fair election. Reference is made to the accreditation process set out in Paragraphs 10 and 11 of the said Regulations and Guidelines to submit that the election in all the

polling units and wards complained of was in substantial compliance with the accreditation procedure set out therein. Relying on Section 136 of the Evidence Act, 2011, Counsel submits that the Appellants were obliged to prove their assertion that from the accreditation in the Card Reader, the election was characterized by over-voting. He contends that they failed to do this and so the Petition deserved to be dismissed.

Counsel submits that in their attempt to prove their allegations of over-voting based on accreditation by Card Reader, the Appellants failed to call the polling units agents as witnesses; rather they called only ward collation agents who were not at any of the polling units when the election was conducted and when entries were made in the appropriate INEC Forms. The Appellants also failed to have recourse to the Voters’ Registers from the polling units under challenge. It was the failure to call the polling units’ agents that majorly led to the failure of the Petition. For the significance of the evidence of polling units’ agents in an electoral dispute to prove complaints of malpractices such as over-voting

at polling units, reference is made to Section 53(2) of the Electoral Act, 2010 (as amended) and the decision in Gundiri V Nyako (2014) 2 NWLR (Pt. 1391) 211 245, C-D.

Counsel contends that PWs 1-4 called to testify in proof of the Petition were not on the field when the results were counted and entered into the Forms brought to them by the polling units? agents in the areas where the election was being challenged. Their evidence therefore consisted of only what they were told by the polling units? agents and therefore is hearsay, which is inadmissible in law. Counsel submits that in its finding in this respect, the Tribunal followed the precedent laid down by Courts in decisions such as in Hashidu V Goje (2003) 15 NWLR (Pt. 843) 393, B-E; & Buhari V INEC (2008) 36 (Pt. 1) NSCQR475, 693.

Counsel further submits that the Appellants? case as presented through its four witnesses is that the over-voting alleged was evident from a comparison of the Forms EC8A with figures of the authenticated voters in the Card Reader. He contends that this is unknown to electoral jurisprudence. Instead, over-voting can only be established by having

recourse to the number of names ticked in the Voters? Register to determine the number of persons accredited therein. Reliance is placed on Ladoja V Ajimobi (2016) 10 NWLR (Pt. 1519) 87, 147-148, H-E; Emerhor V Okowa (2016) 2 SC (Pt. III) 2, 27-28, 10-20. He therefore submits that the Appellants failed to prove their allegations of over-voting since the evidence of PWs 1-4 relied upon was never linked to any figure(s) in the Voters? Register. This is more so since all their witnesses conceded that accreditation was carried out both by Card Reader and the Voters? Registers.

In respect of the allegation that the 1st Respondent was not elected by majority of the lawful votes cast at the election, Counsel submits that such an allegation is an invitation to compare and contrast figures. Therefore, in order to succeed on this ground, there must be specific pleading of the existence of two sets of results emanating from the same election. Reliance is placed on Abubakar V Yar?adua (2008) 19 NWLR (Pt. 1120) 1, 155. Counsel contends that the Appellants failed to do this in their Petition and also failed to lead credible evidence that

the 1st Respondent did not score majority of the lawful votes cast at the election in those Polling Units and that instead, it was the 1st Appellant who scored the highest lawful votes.

Counsel contends that the bundle of documents tendered by the Appellants were dumped on the Tribunal and little effort was made to show the results to the ward agents who were called as witnesses.

Additionally, Counsel submits that the 1st Respondent led credible evidence, which was not impugned or controverted, through two witnesses, DW1 and DW2, who demonstrated that the election was peaceful and conducted in accordance with the Electoral Act, 2010 and the Regulations and Guidelines for the conduct of the 2019 election and tendered Exhibits 1R3 and 1R4. Counsel therefore submits that the Tribunal rightly held that there is nothing known as accreditation by Card Reader; and also rightly dismissed the Petition for failure of the Petitioners to apply the correct accreditation procedure leading to the erroneous contention that that there was over-voting in 20 polling units. Finally, Counsel urged the Court to resolve this issue in favour of the 1st Respondent.

On the part of the 2nd Respondent, learned Counsel on his behalf submits that the election held in all the Polling Units and Wards complained of was in substantial compliance with the Law and Regulations, contrary to the assertion of the Appellants that there was over-voting. He contends that since the Appellants asserted that the accreditation was based on only the Card Reader, the burden rested on them to prove this ? Section 136 of the Evidence Act, 2011; Okoye V Nwankwo (2003) FWLR (Pt. 156) 1005; & Oyebode V Gabriel (2013) All FWLR (Pt. 669) 1043, 1104.
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The submissions of Counsel were essentially identical in material particulars to that of the 1st Respondent?s Counsel. He submits that in attempting to prove their allegations of over-voting based on the Card Reader, the Appellants failed to call polling units? agents who saw and participated in the elections at the polling units to testify but instead, called Ward Collation agents who were not at the polling units. In addition, the witnesses failed to make reference to the Voters? Registers of the polling units under challenge. These failures were fatal to their

case. In addition, the evidence of PWs 1-4 relied on by the Appellants in proof of their Petition was composed of what they were told by the Polling Units Agents and so was hearsay. Reliance is placed on Gundiri V Nyako (2014) 2 NWLR (Pt. 1391) 211, 245, C-D; Hashidu V Goje (2003) 15 NWLR (Pt. 843) 393, B-E; & Buhari V INEC (2008) 36(Pt. 1) NSCQR 475, 693.

Furthermore, relying on the decisions in Ladoja V Ajimobi (2016) 10 NWLR (Pt. 1519) 87, 147-148, H-E; and Emerhor V Okowa (2016) 2 SC (Pt. III) 2, 27-28, paras 10-20, Counsel submits that over-voting can only be established by having recourse to the Voters’ Register and not the Card Reader. Thus, any Petition where recourse is not made to the numbers ticked in the Voters’ Register for proof of accreditation, is bound to fail. He contends that the PWs 1-4 never linked their evidence to any figures in the results sheets or the figures in the Voters’ Registers nor the even Card Reader Report in their bid to prove over-voting in the said Wards. Instead, PW3 under cross-examination confirmed that accreditation was by both Card Reader and Voters’ Register; and this was therefore an

admission against interest.

Furthermore, Counsel submits that the Appellants’ case, which is predicated on accreditation by Card Reader, cannot be sustained because the Card Reader Information tendered from the Bar as Exhibit P12 was never identified, touched, referred to or used by any of the Appellants’ witnesses. Instead, the document was dumped on the Tribunal and so it could not look at it. More grievous is that from the evidence of DW2, Exhibit P12 is in respect of the Nasarawa State Governorship Election and not in respect of the House of Assembly election. In addition, Exhibit P12 was neither pleaded nor listed in the List of the Appellants’ documents. It was therefore not relevant and was rightly expunged by the Tribunal. Reliance is placed on Andrew v INEC (2018) 9 NWLR (Pt. 1625) 507, 558-559, G-C; Okereke V Umahi (2016) 2-3 SC (Pt. 1); & Haruna V AG Federation (2012) 9 NWLR (Pt. 1306) 419 (SC). Counsel finally urged the Court to dismiss the Appeal.

In a brief reply on point of law, learned Counsel for the Appellants submits that by virtue of Paragraph 10(b) of the INEC Guidelines and Regulations for the Conduct

of Elections 2019, the Card Reader machine must read the Permanent Voters’ Cards (PVCs) of eligible voters. Where the voters’ finger prints cannot be authenticated, their names and phone numbers would be recorded in the Voters’ Register. Thus, where the Card Reader machine is used, the total number of votes cast must tally with the total number of accredited votes. He contends that in this case, the total number of votes cast in all the 20 polling units complained of exceeded the total number of accredited votes recorded in Exhibit P12.

Counsel further submits that, contrary to the contention of the Respondents that PW3’s evidence was an admission against interest, PW3 gave evidence in support of the Appellants’ pleadings. He argues that the Appellants pleaded both the Voters’ Registers and the Voters Accreditation Figures/Records, tendered and relied on both. He contends that the evidence contained in the 1st Respondents Witnesses’ Statements on Oath was not established. Finally, Counsel submits that Exhibit P12 is the Voters’ Accreditation Figures/Records in both Governorship and State

Constituency Elections held on 09-03-19 in Nasarawa State as there was no separate accreditation. The Court is again urged to resolve the issue in favour of the Appellants and to allow the Appeal.

Findings
It is imperative to state upfront that it is manifest that the entire Petition of the Appellants at the Tribunal was predicated on allegations of over-voting in 20 polling units spread across three out of the six wards in the constituency, namely: Ashige, Adogi and Shabu/Kwandere Wards. In the pleadings of the Appellants, the allegations of over-voting are based upon a comparison of the election results in the Forms EC8A with the figures in the Card Reader, otherwise properly known as the Smart Card Reader (SCR). See paragraphs 21, 22, 23, 24, 25 of the Petition. The Appellants also pleaded accreditation by using the Voters’ Register see paragraphs 3(a) to (f) of the Petitioners’ Reply to the 1st Respondents Reply. Therefore, they pleaded accreditation by both the Card Reader and by the Voters’ Register.

Accreditation is indeed the foundation or base of every free and fair election. The importance of

accreditation is underscored by its inclusion in the Electoral Act which also provided the legal bulwark, framework and justification for accreditation at every election. For ease of reference, Section 49(1) of the Act provides:
49. (1) Any person intending to vote with his voters card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voters card.
(2) The Presiding Officer shall, on being satisfied that the name of the person is on the Register of Voters, issue him with a ballot paper and indicate on the Register that the person has voted. (Emphasis supplied)
To give fillip to this provision, paragraphs 10 and 11 of the Regulations and Guidelines for the conduct of Election 2019 issued by INEC set out the step by step procedure for the accreditation of voters at an election. Some of the critical steps set out therein are as follows:
10-(a) In accordance with Section 49(2) of the Electoral Act, a person intending to vote shall be verified to be the same person on the Register of Voters by use of the Smart Card Reader (SCR) in the

manner prescribed in these Regulations and Guidelines.
(d) The accreditation process shall comprise reading of the Permanent Voters’ Card (PVC) and authentication of the fingerprint using the SCR; checking of the Register of Voters and inking of the cuticle of the specified finger of the voter.
(e) … .
The APO I shall:
i. Request for the PVC from the voter;
ii. Read the PVC using the Smart Card Reader to ascertain that the photograph on the permanent voters card is that of the voter and that the polling unit details correspond with those of that polling unit;
iii. Request the voter to place the appropriate finger in the place provided on the Smart Card Reader for authentication; and if the fingerprint matches, request the voter to proceed to APO II.
(f) The verified voter shall present himself/herself to the APO II who shall:
i. Request for the permanent voters card;
ii. Check the Register of Voters to confirm that the voters name, details and Voter Identification Number (VIN) are as contained on the Register of Voters;
iii. Tick the appropriate box of the

horizontal boxes on the right margin beside the voter?s details on the Register, showing the category of election, if the person?s name is on the Register of Voters;
iv. Tick the appropriate box at the left margin of the Voter details in the case of SCR failure to read (FR) or failure to authenticate (FA);
v. …
vi. Apply indelible ink to the cuticle of the specified finger on the left hand to indicate that the voter has been accredited to vote in that election.
vii. …
11. (a) The Accredited voter shall proceed to the PO who shall:
i. Check the cuticle of the appropriate finger, thumb-nail of the voter to confirm that he/she has been accredited;? (Emphasis supplied)
From a combination reading of the above provision of the Electoral Act and the Regulations and Guidelines, it is not in dispute that accreditation is a process which involves the use of the Smart Card Reader to aid in authenticating a voter whose name and other details must be found in the Voters? Register. To underscore the superiority and indispensability of the

Voters? Register to the accreditation process, Paragraph 10(d) of the Guidelines explicitly and overtly states that the ?accreditation process? comprises reading of the PVC; authentication of the voter?s fingerprint using the Smart Card Reader (SCR); checking of the Register of Voters; and inking the cuticle of the specified finger of the voter. This is the full process of accreditation.
?Furthermore, in anticipation of any malfunction or breakdown of the Smart Card Reader leading to a failure to read (FR) or a failure to authenticate (FA) the fingerprint of a voter in the process of accreditation, Paragraphs 10(f) (iv) (v) & (vi) above stipulate what is to be done to complete the process of accreditation without the use of the Smart Card Reader, and using only the Voters? Register. Consequently, it is apparent that the process of accreditation involves both the Smart Card Reader and the Voters? Register. However, whereas the accreditation process can be completed in the event of the failure and/or malfunction of the Smart Card Reader, accreditation cannot be done without the Voters? Register.

Now the complaint of the Appellants before the Tribunal is in essence that upon an examination of the scores of the parties in the relevant results sheets from the polling units i.e. the Forms EC8A, and the numbers/figures of accredited voters in the Card Reader, the number of votes cast at the polling units exceeded the number of voters accredited, therefore leading to over-voting. This allegation was made in respect of 11 polling units in Ashige Ward, 6 polling units in Adogi Ward and 3 Polling Units in Shabu/Kwandere Ward of Lafia North State Constituency of Nasarawa State.
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In order to prove over-voting in these wards, the Appellants adduced evidence through four witnesses. PW1 was the ward collation agent of the 2nd Appellant in Ashige Ward; PW2 was the ward collation agent of the 2nd Appellant for Adogi Ward; PW3 was the ward collation agent for Shabu/Kwandere Ward; and PW4 was the candidate of the 2nd Appellant at the election i.e. the 1st Appellant himself. By their own admissions and indeed by their designations, none of these witnesses were polling units? agents of the 2nd Appellant and so they were not present at the various polling units during

the period of the election. I am however not unmindful that they testified under cross-examination that at some point during the period of election, they visited the polling units in their wards for brief periods some admittedly for two minutes, some for 5 minutes and some possibly for less. Therefore, by their own evidence, they could not have witnessed the entire process of accreditation of all the voters at the 20 polling units, the entries of the results in the Forms EC8As and other processes of the election on 9th March, 2019.

In addition, the PWs 1 to 3 as Ward Collation agents of their Party expressly stated that they received all the information on the conduct of the election and in particular, in respect of accreditation, from the polling units? agents stationed at the polling units, who also handed over the results in the Forms EC8A to them. By their own evidence therefore, the complaint of over-voting arose from their comparison of the figures on the Forms EC8A and the Card Reader accreditation information received from the 3rd Respondent. No mention was made of the Voters? Registers in their evidence.
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Now it must be said from

the onset that during the pre-hearing session as required, the Parties to the Petition tendered the documents they intended to use at the trial, from the Bar. Tendering documents from the Bar in Election Petitions is a creation of Statute, the First Schedule to the Electoral Act, and it is aimed at speeding up proceedings before the Tribunal since time is of the essence in election Petitions. Paragraph 41(2) provides thus:
?Documents which parties consented to at the pre-hearing session or other exhibits shall be tendered from the Bar or by the party where he is not represented by a legal practitioner.?
The practice provided for in these Rules in order to save time in these sui generis proceedings. Nonetheless, the tendering of documents from the Bar does not obviate the absolute necessity for the witnesses called by the parties to the Petition to identify and speak to the documents and demonstrate same in order for them to be used by the Tribunal and for any weight to be attached to them. Where any party fails to get his witnesses to speak to the documents tendered and draw attention to the relevant parts of those documents which they

want the Court to look at, it would result in the documents being discountenanced. The law is settled that the Tribunal will not engage in a private inquiry or investigation into the contents of documents dumped on it in the privacy of its Chambers, as that would amount to doing cloistered justice.

In the instant case, much as the Appellants pleaded the Card Reader and the Card Reader Accreditation Sheet said to have been supplied by the 3rd Respondent in the Petition, and the witnesses in their evidence named the Card Reader as the source of the accreditation figures which they used in comparing with the results and arrive at their conclusion of over-voting; neither the Card Reader Machine itself nor the Card Reader Accreditation Information were tendered and used in the evidence of these witnesses. To make matters worse, even though the Voters? Registers were duly pleaded in the Petition, they were never shown to PWs 1 to 4 to demonstrate, in their mission to prove allegations of over-voting. Thus, the decision of the Tribunal is reinforced and cannot be faulted when it held that the documents were simply dumped on the Tribunal.

The law is long since settled that in order to prove over-voting at an election, recourse must be had to the Voters? Registers to determine the number of persons accredited therein. Any Petition where recourse is not made to the number of persons ticked in the Voters? Register, is bound to fail. A short voyage into the current decisions of the Supreme Court governing the law on this subject will not be out of place. In Ladoja V Ajimobi (2016) 10 NWLR (Pt. 15190 87, 147-148, H-E, the Supreme Court lucidly and unreservedly set out the manner in which an allegation of over-voting at an election should be proved as follows:
?It goes without saying that there are crucial electoral documents which must be tendered by a petitioner in proof of over-voting and how such must be tendered. The most important of such are the voters register used in the challenged election, and forms EC8A. These are the documents which the appellant through its witness PW1, admitted they did not tender and thus an admission against interest. See Ipinlaiye II V Olukotun (1996) 6 NWLR (Pt. 453) 140 at 165. Also in the recent decision of this Court in SC.907/2015 ?

Mahmud Aliyu Shinkafi & Anor. V A. Abdulazeez Abubakar Yari & 2 Ors (unreported) delivered on 8th January, 2016, it was held that:- ?To prove over-voting, the law is trite that the petitioner must do the following:- 1. Tender the voters register. 2. Tender the statement of results in the appropriate forms which would show the number of 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 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…? (Emphasis supplied)
Yet again, the Supreme Court in Emerhor V Okowa (2016) 2 SC (Pt. III) 2, 27-28, paras 10-20 reiterated the extant position of the law for the manner in which allegations of over-voting should be proved in Court. It stated unwaveringly thus:
?In a plethora of decisions of this Court, we have made it abundantly clear that a Petitioner seeking to prove over-voting in an election, must do the following:
1.Tender the voters register to show the

total number of registered voters in each unit.
2. Tender the statement of result in the appropriate forms which would show the total number of votes cast.
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.
5. In view of the introduction of the card reader machines in elections, I will add that the petitioner should tender the card reader report if it did not fail to function…
So when the Appellants herein proposed to prove over-voting by means of card report only, it was a non-starter. The introduction of the card reader device does not suddenly wipe out or obliterate the traditional and age long method of proving over-voting. Rather, it complements and strengthens the process. I think this was the bane of the Appellant?s case at the trial Tribunal. The provisions of Section 53(2) of the Electoral Act, 2010 (as amended) places the burden of proof on the Appellants as Petitioners to show that the number of votes cast at the election exceed the number of

accredited voters for the election and the number of accredited voters as ticked in the voters? register and not the accreditation by card reader only as submitted by the Appellants. (Emphasis supplied)
?The decision of the Supreme Court in Okereke V Umahi (2016) LPELR-40035(SC) 36-38, per Nweze, JSC, has placed the cap on the bottle or the final nail in the coffin on the place of the Card Reader and Voters? Register in the process of accreditation, and thereby seals the fate of the Appellants on the issue. My lord magisterially intoned thus:
?…even with the introduction of the said device, that is, the Card Reader Machine, the National Assembly, in its wisdom, did not deem necessary to bowdlerize the said analogue procedure in Section 49 (supra) from the Act so that Card Reader procedure would be the sole determinant of a valid accreditation process. Contrariwise… it stands to reason that the card reader was meant to supplement the Voters? Register and never designed or intended to supplant, displace or supersede it.? (Emphasis supplied)
From all the above, since the four witnesses called by the Appellant to

prove their allegations of over-voting failed to link or relate the results in the Forms EC8A from the 20 polling units to the accreditation figures in the Voters? Register; or put another way, since the witnesses in their evidence, both in chief and under cross-examination, failed to relate the Voters? Registers and the result forms to the specific areas where over-voting was complained of, and instead, only placed reliance on the figures generated from the Card Reader, it is inevitable that the allegations of over-voting were not proved, and so the Petition rightly failed.
Yet another crucial area where the Petition was found wanting was in the nature and quality of evidence offered in proof of over-voting. The evidence was neither credible nor comprehensive coming from persons who were not present at the polling units when (1) the election took place, (2) the accreditation was carried out and (3) the results were entered into the Forms EC8A. The PW1, PW2 and PW3 were by their own admissions, Ward Collation agents who very briefly visited the numerous polling units in their respective wards. They were not in the field where the results

under challenge were counted and entered into the forms brought to them by the polling units? agents. Thus, the evidence relied upon by the PWs 1 to 4 was really what they were told by the polling units? agents. The polling units? agents, who saw, heard and participated in the elections at the polling units were unexplainably relegated to the background and not called as witnesses. It is really hard to fathom why the decision was taken not to call them as witnesses. The acceptable evidence in this respect ought to have come from the polling units? agents who received the Forms EC8A from the INEC polling officials after the election, in whose presence the INEC officials prepared, made entries and signed the Forms in which the disputed figures set out in the Petition, were authored. They are the base of the pyramid in the election process upon which the foundation is laid and the building is erected. See Hashidu V Goje (2003) 15 NWR (Pt. 843) 393, B-E.
The significance of polling units? agents in an electoral dispute cannot be over-emphasized where a Petitioner has to prove allegations of malpractice such as over-voting at

polling units. Since the best evidence to prove over-voting in compliance with Section 53(2) of the Electoral Act 2010 (as amended) is that of the polling units agents who were physically on ground and in a proper position to testify as to what transpired at the election, the failure of the Appellants to call such crucial and indispensable polling units agents was fatal to their case. See Gundiri V Nyako (2014) 2 NWLR (Pt. 1391) 211, 245, C-D.
It is no wonder that the Tribunal held that the entire evidence of the Appellants constituted hearsay and so was inadmissible. It was right. In Buhari V INEC (2008) 36 (Pt. 1) NSCQR 475, 693, again the Supreme Court categorized such evidence thus:
?An agent is the representative of the candidate in the polling station. He sees all the activities; he hears every talk in the station. He also sees all actions and inaction in the station. Any evidence given by a person who was not present at the polling units or polling booth like the Appellant is certainly hearsay. After all, he was not there. He was given the information by the agents. The million [dollar] question is why these agents did not make

statements as witnesses.? (Emphasis supplied)

Finally, it is the law that where a Petitioner challenges an election on the ground that the opposing candidate did not score a majority of the lawful votes cast at the election, he is obliged to plead and lead credible evidence showing the existence of two sets of results emanating from the same election. This is to enable the Court to compare and contrast the figures so presented in order to arrive at a decision thereon. See Abubakar V Yar?adua (2008) 19 NWLR (Pt. 1120) 1, 155.
In the instant Petition, the Appellants conspicuously failed to lead any such credible evidence which would establish their ground of complaint that the 1st Respondent did not score a majority of the lawful votes cast at the 20 polling units across the three wards complained about; and that rather, it was the 1st Appellant who scored the highest lawful votes cast at the election. An analysis has already been made of the character of evidence adduced by the Appellants through their three ward collation agents and the 1st Appellant, PWs 1 to 4. In addition to the fact that the entire evidence adduced through these

witnesses in respect of results generated at the polling units amounted to hearsay, i.e. what they were told by the polling units? agents who were never called as witnesses; even the polling units result sheets they tendered were documentary hearsay as they were not demonstrated before the Tribunal to relate them to the areas of their complaints. Instead, the bundle of documents was simply dumped on the Tribunal. To make matters worse, the witnesses, in particular the PW3, crumbled and unravelled under the furnace of cross-examination, admitting that there was no over-voting in the areas complained of. Consequently, I agree with the submission of learned Counsel for the 1st Respondent that the Appellants woefully failed to lead credible evidence to discredit and disprove the result of the election as declared by the 3rd Respondent.

In the face of all these, the two witnesses called by the 1st Respondent demonstrated before the Tribunal that accreditation in the polling units in question was carried out in accordance with the Law and procedure laid down in the Regulations and Guidelines of INEC. DW2 in particular gave a graphic step by step account

of this procedure and rightly stated that, contrary to the contention of the Appellants in their pleadings, accreditation by Card Reader is unknown to the electoral laws. Paragraphs 10 and 11 of the Approved Regulations and Guidelines for the Conduct of the Elections 2019 and the Manual for Election Officials 2019 tendered by the 1st Respondent as Exhibits 1R3 and 1R4 were amply demonstrated by this witness. I therefore find that in the light of the oral and documentary evidence laid before the Tribunal, coupled with the extant position of the law as stated in the Electoral Act and decided cases, the Tribunal was right when it held as it did and dismissed the Petition of the Appellants. Issue two is also resolved against the Appellants.

In the final analysis, having resolved both issues for determination against the Appellants, I find the Appeal bereft of merit. It fails and is accordingly dismissed.
Consequently, the Judgment of the Nasarawa State National and State Houses of Assembly Election Tribunal sitting in Lafia, in petition No. EPT/NSHA/NS/HA/18/2019 delivered on 24th July, 2019, is hereby affirmed.

Cost of the assessed at N200,000.00, is awarded to the 1st and 2nd Respondents against the Appellants.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother Jummai Hannatu Sankey, JCA
My learned brother has elaborately dealt with all the issues generated in this appeal. I am in complete agreement with his reasoning and conclusion dismissing the appeal for lacking in merit. I too do dismiss this appeal for the same reasons. I abide by all the consequential orders as made in the lead judgment of my brother.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, Sankey, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal has no merit.

It is to be noted that over – voting takes place at polling units and so it is necessary to call polling unit agents who were present at the polling units where the alleged over – voting took place to testify thereon. The appellants did not call any polling agent to testify as a witness. Rather the 1st appellant testified as a candidate and

called Ward Collation agents. None of them showed that he was at any of the polling units for any reasonable length of time. None testified that he was present during accreditation of voters, voting, collation of results, entry of results in Form EC8A and announcement of results. The evidence of all the witnesses, viz; PW1, PW2, PW3 and PW4 amounted to hearsay. Overvoting is not proved by mere observation of Form EC8A by a person who was not privy to the making of the document and who therefore cannot answer any questions on the form. See Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507.
The case of the appellants was made worse by the fact that all the documents tendered to prove over – voting were simply dumped on the Tribunal. The Tribunal could not conduct an investigation by digging into the documents to ferret out information and figures in respect of the relevant aspects of the petition. That would have amounted to doing cloistered justice. See Duriminiya V Cop (1961) NRNLR 70, Ucha V Elechi (2012) 13 NWLR (Pt.1317) 330, Omisore V Aregbesola (2015) 15 NWLR (Pt. 1482) 205 and Udom V Umana (No 1) (2016) Z NVVLR (Pt. 1526) 179.

The Tribunal was therefore right in holding that the appellants did not prove their petition, thereby dismissing the same.
?
It is for the foregoing reasons and the more comprehensive reasons ably set out in the lead judgment that I also find that the appeal has no merit. I accordingly dismiss it and abide by the consequential orders made in the lead judgment.

Appearances:

Ovye John, Esq. with him, A.G. Akawu, Esq.For Appellant(s)

Matthew G. Burkaa, Esq. with him, H. A. Ibrahim, Esq., M.E. Usman, Esq., I.H. Nalaraba, Esq. and I.B. Ahmed, Esq. for 1st Respondent.

Ismail Idris Aseku, Esq. with him, AA. Iliyasu, Esq. and Abdulkadir Musa, Esq. for 2nd Respondent.

A.l.T. Adams, Esq. for 3rd RespondentFor Respondent(s)

Appearances

Ovye John, Esq. with him, A.G. Akawu, Esq.For Appellant

AND

Matthew G. Burkaa, Esq. with him, H. A. Ibrahim, Esq., M.E. Usman, Esq., I.H. Nalaraba, Esq. and I.B. Ahmed, Esq. for 1st Respondent.

Ismail Idris Aseku, Esq. with him, AA. Iliyasu, Esq. and Abdulkadir Musa, Esq. for 2nd Respondent.

A.l.T. Adams, Esq. for 3rd RespondentFor Respondent

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