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JOHN MICHAEL ABDUL & ANOR v. AKWASHIKI GODIYA & ORS (2019)

JOHN MICHAEL ABDUL & ANOR v. AKWASHIKI GODIYA & ORS

(2019)LCN/13780(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of September, 2019

CA/MK/EPT/SEN/14/2019

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. JOHN MICHAEL ABDUL
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)

AND

1. AKWASHIKI GODIYA
2. ALL PROGRESSIVES CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

RATIO

THE BURDEN OF PROOF IN ELECTION PETITIONS

There is a rebuttable presumption that the result of an election declared by INEC is correct and authentic. The burden lies on the party that disputes the correctness and authenticity of the result to lead rebuttal evidence. If the party, namely; the petitioner succeeds in adducing sufficient 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 the favour of the petitioner. 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 and 309-310. PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the National and State Houses of Assembly Election Petition Tribunal, Lafia (coram Igoh, J., Ukpanah, J. and El-Mainari J.) delivered on 26/7/2019 in Petition No. EPT/NSHA/SEN/11/2019. In the judgment, the tribunal dismissed the petition of the appellants which challenged the return of the 1st respondent as the winner of the election conducted on 23/2/2019 for the Nasarawa North Senatorial District.

On 23/2/2019, the 3rd respondent conducted election in Nigeria for seats in the National Assembly. For the Nasarawa North Senatorial District, the 1st appellant contested the election on the platform of the 2nd appellant against thirteen other candidates including the 1st respondent who was sponsored by the 2nd respondent. At the end of the exercise, the 3rd respondent declared and returned the 1st respondent as the winner of the election having polled the majority of the lawful votes cast at the election. The 1st respondent polled a total of 54, 104 votes while the 1st appellant came second with 48, 133 votes.

Aggrieved by the return, the

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appellants filed a petition at the tribunal against the same. The sole ground of the petition was that the 1st respondent was not duly elected by a majority of lawful votes cast at the election. The appellants therefore claimed the following reliefs:
1. Whereof the Petitioners pray for:
(a) A declaration that the 1st respondent was not validly elected or returned under the platform of the 2nd Respondent, having not scored majority of valid votes cast at the Nasarawa North Senatorial elections held on the 23rd February, 2019.
(b) A declaration that the Petitioner scored the majority of lawful votes cast at the Nasarawa North Senatorial Elections held on the 23rd February, 2019.
(c) A declaration that 1st Petitioner, JOHN MICHAEL ABDUL, is the duly elected Senator of the Nasarawa North Senatorial District having scored the highest number of valid votes cast at the said election.
(d) That the Petitioner, JOHN MICHAEL ABDUL sponsored by the 2nd Petitioner, be declared validly elected or returned, having polled the highest number of lawful votes cast at the 2019 election for the senatorial seat in the Nasarawa North Senatorial

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District held on the 23rd February, 2019.

At the hearing of the petition, the appellants called six witnesses and tendered exhibits. The 1st respondent called three witnesses while the 2nd and 3rd respondents did not call any witness. After taking addresses of counsel, the tribunal, as earlier stated, dismissed the petition for lacking in merit.

Dissatisfied by the verdict, the appellants appealed to this Court by means of a notice of appeal filed on 10/8/2019 which bears sixteen grounds of appeal.

At the hearing of the appeal on 10/9/2019, counsel for the parties adopted and relied on the briefs of argument filed on behalf of the parties to the appeal in urging the Court to allow or dismiss the appeal.

In the appellants brief of argument, the following issues are formulated for the determination of the appeal:
i. Whether the evidence of the Appellants witnesses presented at the tribunal below is not admissible or not reliable as held by the tribunal below. (Grounds 6. 7. 8. 10 and 11 of the grounds of appeal).
ii. Whether in view of the Appellants case at the Tribunal below that the 1st respondent was

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not duly elected by a majority of lawful votes cast, the Appellants established their case or proved the petition to be entitled to the reliefs sought in the Petition. (Grounds 5, 9, 12, 14 15 and 16)
iii. Whether the Appellants dumped documents on the Tribunal below having regards to the case of the Appellants vis a vis the written statement on oath of the Petitioners witnesses which demonstrated the document and linked them with the Appellants case (Ground 13)
iv. Whether the Failure to tender card reader reports for Umme Ward of Nasarawa Eggon L.G.A. affected the needed evidence in proof of over voting in the ward (Distilled from ground 2 of the grounds of appeal).

In the 1st respondents brief of argument, the following issues are presented for the determination of the appeal:
1. Whether the trial tribunal was not right when it held that the evidence proffered by the Petitioners/Appellants witnesses are not admissible in law, same being hearsay evidence. (Grounds 6, 7, 8, 10 &11).
2. Whether the trial tribunal was not right when it held that the Petitioners/Appellants failed to prove that the 1st

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Respondent was not duly elected or returned as the winner of the Nasarawa North Senatorial District election held on the 23rd day of February, 2019. (Grounds 5, 9, 12, 14, 15 & 16).
3. Whether the trial tribunal was right when it held that the Appellants dumped documents on the trial tribunal and therefore failed to link any of the said documents to the case of the Petitioner/Appellants. (Grounds 13).
4. Whether the trial tribunal was not right when it held that the failure of the Petitioners/Appellants to tender the card reader report and the failure to link voters registers for UMME WARD of Nasarawa Eggon Local Government Area did not affect the evidence of the Appellants witnesses in prove of over voting in that ward (Ground 2)

In his brief of argument, 2nd respondents counsel adopts the issues formulated in the appellants brief of argument.

On his part, 3rd respondents counsel formulated two issues for the determination of the appeal. The issues are:
A. Whether the learned Judges of the Tribunal were wrong when they held that the Petitioners could not prove their petition on the

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strength of the evidence of the Petitioners. (Distilled from ground 5, 6, 7, 8, 11 and 12 of the grounds of appeal).
B. Whether the tribunal was wrong when it held that over voting and the complaint of reduction of votes were not proved. (Distilled from ground 9 and 14 of the grounds of appeal).

I shall pause at this stage to state that counsel for the respondents raised preliminary objection to the appeal or some aspects of the appeal. At the hearing of the appeal on 10/9/2019, counsel for the 1st respondent, Dr M.T. Adekilekun withdrew his preliminary objection and the same was accordingly struck out. 3rd respondents counsel, Hakim Bakare, Esq. also withdrew his preliminary objection and the same was struck out.

Counsel for the 2nd respondent, Matthew Burkaa, Esq. referred to his preliminary objection and argument thereon at pages 5,13 paragraphs 2.0,4.1.4 of 2nd respondent’s brief of argument. He adopted the same and urged the Court to strike out the appeal. I shall consider the preliminary objection of the 2nd respondent first before proceeding to treat the merits of the appeal, if necessary. The complaint

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of 2nd respondent is against prayers 4 and 5 in the notice of appeal. It is contended that prayers 4 and 5 in the notice of appeal contradict the prayers sought in the tribunal. It is further contended that grounds 2, 3, 4 and 5 have a single set of particulars and it can not be deciphered which of the grounds the particulars apply to. Finally, it is submitted that ground 6 does not arise from the judgment of the tribunal. Consequently, it is urged that issues 1, 11 and iv be struck out, being formulated from incompetent grounds.

The prayers in the notice of appeal read:
1. An order setting aside the judgment of the lower tribunal.
2. An order granting the claims of the petitioners as contained in the petition.
3. An order setting aside the return of the 1st Respondents.
4. An order declaring the 1st and 2nd Respondents as winners of the election for the Nasarawa North Senatorial District held on the 23rd Day of February, 2019.
5. An order directing the 3rd Respondent to issue a certificate of return to the 1st Respondent.

It is clear that in prayers 4 and 5, the use of the term 1st and 2nd

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respondents rather than 1st and 2nd appellants, respectively, is a mere typographical error or irregularity which does not go to the root of the notice of appeal. It can be corrected by way of amendment either on the application of the appellants or by the Court suo motu. Such an application can be made orally. In Media Tech (Nig) Ltd V Adesina (2005) 1 NWLR (Pt. 908) 461, 472 it was held that an amendment can be done suo motu by the Court to put right an irregularity in proceedings. See also Omisore V Aregbesola (2015) 15 NWLR (Pt. 1482) 205, 256 where an error in the notice of appeal in stating the correct name of a party was corrected suo motu by the Supreme Court by way of an amendment. This was done long after the time limited to file notice of appeal.
That aspect of the objection is overruled. I hereby enter an order effecting amendment of the notice of appeal by inserting the words 1st and 2nd appellants in place of 1st and 2nd respondents in relief No. 4 and 1st appellant in place of 1st respondent in relief No. 5

The particulars of grounds 2, 3 and 4 are embedded in

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those grounds and that suffices. Ground 5 has its separate particulars under it. It cannot frankly and seriously be contended that it is not certain to which grounds of appeal the particulars are attached. That argument is sheer chicanery and I reject it.

I have studied ground 6 of the grounds of appeal. It is my view that it arises from the judgment of the tribunal in the sense that it complains about error of the tribunal in finding that the evidence of witnesses who testified about the announcements that were made at the ward collation centre was hearsay.

I see no merit in the objection of the 2nd respondent which is hereby overruled.

I need to state that counsel should avoid frivolous and unnecessary preliminary objections as they constitute distractions and irritation.

I now return to the substantive appeal.

Having read the grounds of appeal, it is my view that one issue arises for the determination of the appeal, viz;
Was the tribunal right in dismissing the petition of the appellant?
Appellants counsel noted that part of the reasons the tribunal dismissed the petition was that the evidence of appellants

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witnesses was either hearsay, contradictory or unreliable. It was his contention that the evidence of those witnesses was not hearsay. He noted that the PW3 and PW4 were the ward collation agents of appellants who were present when the collation of results was done in their respective wards. Similarly, the PW5 was present during the collation of final result. He also noted that the PW6 was the ward collation officer of the 3rd respondent in Umme Ward who collated the polling unit results and announced that there was over-voting. The evidence of PW5 on this, he stated, cannot be hearsay as it was given not to prove over-voting but that he was present when it was made. It was submitted that by the role of PW4 as ward collation agent of the appellants, he was entitled to receive Exhibit P5 from the ward returning officer as well as polling unit results from appellants polling agents. The same, it was stated, applies to PW5. He stressed that these witnesses gave evidence that upon examination of the exhibits, they noticed over-voting.
Counsel argued that the documents tendered before the tribunal are public documents which enjoy the privilege of

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presumption of authenticity until the contrary is proved and that it was wrong for the tribunal to apply to them the principle that only the maker of a document can give evidence as to its content. This principle, he argued, applies only to private documents which do not enjoy the presumption of authenticity as duly certified true copies of public documents do.

It was further argued that the PW6 by virtue of paragraph 3. 1(b) steps 3 and 4 of the Manual for Election Officials, 2019, rightly collected the smart card readers from the Presiding Officers and compared the number of votes verified by them with the number of accredited voters and the total votes cast to arrive at the conclusion that there was over-voting.
Counsel submitted that the tribunal was wrong in discountenancing the completely unused ballot booklets (Exhibits P70 and P71) produced under subpoena by the Department of State Security (DSS) because they were tendered without prior notice to the respondents. He contended that the position of the tribunal was not supported by law.
Counsel posited that with the evidence presented, the appellants proved their petition and that it was

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unnecessary to call polling unit agents. He referred to the evidence of PW1, the Local Government collation agent for appellants, whom he said was present at the Local Government Collation Centre where the votes of the appellants were reduced by 1000 votes in the course of transferring figures from Form EC8B to Form EC8C. He submitted that the tribunal was wrong in holding that the complaint was not proved because polling agents and ward agents were not called. This, he said, is because the reduction of votes was done at the Local Government collation level where PW1 was. He also proffered the same argument in respect of PW2. It was his view that the PW3 identified and linked Exhibits P6, P11 with his evidence.

Counsel emphasised that appellants case had nothing to do with polling units and that it was grounded on documents that were tendered in evidence and which sufficiently served to prove the case. At pages 25,26 of the appellants brief of argument, counsel summarised what he said was manifest on the record and urged the Court to hold that appellants proved the petition. He further urged the Court to examine the evidence

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on record as the tribunal rejected the evidence of appellants upon a wrong perception. He submitted that the appellants did not dump documents on the tribunal as the witnesses related them to their evidence and the witnesses were cross-examined thereon. It was finally submitted that contrary to the holding of the tribunal, the failure of the appellants to tender card reader reports was not fatal to appellants case as voters register and result sheets were tendered.

On his part, 1st respondents counsel noted that no polling unit agent was called despite the fact that all the allegations centred on alleged non-compliance at the polling units. Again, he stated, the Wamba East collation agent of the 2nd appellant who was at the Wamba East Collation centre and who witnessed the collation of votes alleged to have been reduced was not called as a witness. He reviewed the evidence of PW2 and PW3 and submitted that it amounted to hearsay. He noted that PW3 was not a party agent in any of the polling units where alleged over-voting in Umme Ward took place. He pointed out that the PW6, in cross-examination,

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admitted that there was no over-voting on the face of any of the polling unit results given to her, but that the over-voting was on the card reader report which he noted was not tendered at the tribunal. He qualified the evidence of PW4 and 5 as hearsay for the reason that they were not makers of the documents in respect of which they testified.

Counsel submitted that election petition is declaratory in nature and is not granted on default or admission but on cogent and credible evidence. He set out the law regarding prove of over-voting and noted that the allegation of over-voting is based on the card reader report which was not tendered. It was his contention that reliance by the appellants in this Court on voters register, which was not demonstrated in Court was surprising. He referred to Emerhor V Okowa (2016) 11 NWLR (Pt. 1522) 1 on the place of card reader.
He argued that appellants failed to call any witness to proffer direct and credible evidence on allegations of arbitrary award of votes and reduction of votes. He contended that the appellants dumped documents on the tribunal as the appellants failed to link them with their case. This, he

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argued further, was fatal to appellants case. He placed reliance on Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507 among other cases.

Counsel posited that the tribunal was right in holding that the failure of the appellants to tender card reader report for Umme Ward was fatal as the allegation of over-voting in Umme Ward was solely based on it. He emphasised that the reliance by the appellants on voters register in this Court amounted to setting up a new case which the law frowns at.

Counsel for the 2nd respondent proffered substantially the same arguments as 1st respondents counsel. It is therefore unnecessary to set them out again. However, he added some fresh points to the arguments. He noted that appellants did not give any reason for failure to call their polling agents and that appellants must prove non-compliance polling unit by polling unit, ward by ward. It was his contention that the appellants needed two sets of results to prove their allegation that the 1st respondent did not score a majority of lawful votes. It was further contended that it was wrong for the appellants to compare the votes from the

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polling units with the authenticated figures in the card reader and then declare that there was over-voting. He placed reliance on Emmanuel V Umana (2016) LPELR 40037 (SC).

In respect of dumping of documents, it was submitted that it was not correct that the exhibits were linked to the appellants case in the depositions of witnesses. It was his contention that the appellant had a duty to demonstrate and link the documents through their witnesses in open Court. He placed reliance on Andrew V INEC supra.

Counsel for the 3rd respondent proffered arguments which in substance are the same as those proffered by 1st respondents counsel. They need be set out here again.

Appellants counsels reply is in the main a rehash of his argument in the appellants brief except in respect of a few points. I shall ignore the re-hash as that is not the function of a reply brief. Counsel submitted that the voters register being document need not be specifically pleaded for a party to rely on it in proof of his case.
There is a rebuttable presumption that the result of an election declared by INEC is correct and

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authentic. The burden lies on the party that disputes the correctness and authenticity of the result to lead rebuttal evidence. If the party, namely; the petitioner succeeds in adducing sufficient 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 the favour of the petitioner. 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 and 309-310. The burden of proof was therefore on the appellants to lead 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 ground of the petition as stated in paragraph 24 thereof is that the 1st respondent was not elected by a majority of lawful votes cast at the election. The particulars of the ground are set out in paragraphs 24.1.1-34 of the petition. The tribunal at page

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543 of the record of appeal identified the complaints of the appellants under the following heads;
(i) over-voting
(ii) miscalculation of votes
(iii) inflation of votes
(iv) arbitrary award of votes

The tribunal held that the evidence offered by appellants in proof of the allegations was hearsay or contradictory.
The allegation of over-voting involves:
(a) Umme Ward – – – – – 12 polling units
(b) Kagbu/Wana Ward – – – – 5 polling units
(c) Nasarawa Eggon Ward – – – 3 polling units
(d) Alogan Ward – – – – – 2 polling units
(e) Wakama Ward – – – – – 2 polling units
(f) Igga/Burumburum – – – – 9 polling units

That is to say a total of 36 polling units in Nasarawa Eggon Local Government Area.

The tribunal reviewed evidence of PW3, PW4, PW5 and PW6 called as witnesses in respect of the above and held that their evidence was hearsay or unreliable.

The PW3 was the ward collation agent of the 2nd respondent at Umme Electoral Ward. In his written deposition, paragraph 5 at page 41 of the record, he stated that,
The Ward Collation Officer of the 3rd

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Respondent verified the accreditation by card reader for each polling unit before making the entries in Form EC8B (1) and thereafter informed us that there was over-voting in all the Polling Units except Bakin Kogi Polling Unit 001
It is my view that this evidence was given to prove over-voting and it was clearly hearsay. Allegation of over-voting is not proved by hearsay evidence. It is firmly established that to prove over-voting, the petitioner must
(a) plead and tender the voters register for the relevant polling units.
(b) Plead and tender the statement of result in appropriate forms which would show the number of registered accredited voters and the number of actual votes.
(c) Relate each of the documents to the specific area of his case in respect of which the documents were tendered.
(d) Show that the figures representing the over-voting if removed would result in victory for the Petitioner. See Haruna V Modibbo (2004) 16 NWLR (Pt. 900) 487, Yahaya V Dankwambo (2016)7 NWLR (Pt. 115) 284, 313, Nyesom V Peterside (2016) 7 NWLR (Pt. 1512) 453, 520, Shinkafi V Yari (2016) 7 NWLR (Pt. 1511 349, 381 and Ogboru V Okowa (2016) 11 NWLR (Pt. 1522) 1.

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In his evidence at page 484 of the record, the PW3 stated thus:
In paragraphs 2, 7 of my statement I referred to Exhibits P6-P11. These are the documents.
He did not attempt in his evidence to link these exhibits which had earlier been tendered in bulk from the bar to the specific aspects of his allegation of over-voting, that is, each polling unit of the 12 polling units and show how there was over-voting, document by document, entry by entry. The tribunal members could not be expected to retire to their Chambers to sort those things out for the appellants. The law required them to link those exhibits to the specific aspects of their case. I shall take the liberty of quoting in extenso the opinion of Okoro, JSC, in Andrew V INEC (2018) 9 NWLR (Pt. 1625) 507, 558 559 as follows:
Let me lend my voice to the trite position of the law which has been expounded in this Court severally that tendering documents in bulk in election petition is to ensure speedy trial and hearing of election petitions within the time limited by statute. But that does not exclude or stop

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proper evidence to prop such dormant documents. As this Court stated in ACN V LAMIDO (2012) 8 NWLR (Pt. 1303) 560 at 592, Paras C-F, it is not the duty of a Court or tribunal to embark on cloistered justice by making enquiry into the case outside the open Court not even by examination of documents which were in evidence but not examined in open Court. A judge is an adjudicator, not an investigator. I need to state clearly that demonstration in open Court is not achieved when a witness simply touches a bundle of numerous documents with numerous pages. The front loading of evidence and tendering documents in bulk from the bar do not alter this requirement which is an element of proof
The serious lacuna in the appellants case is their failure to link the said documents to the relevant aspects of their case by calling the appropriate witnesses to speak to them and demonstrate their applicability to appellants case in open Court. The law is clear on the duty of a party tendering documents to ensure that such documents qua exhibits are linked to the relevant aspects of his case to which they relate. (Underlining mine for

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emphasis). See also Duriminiya v COP (1961) NNLR 70 and Ucha v Elechi (2012) 13 NWLR (Pt. 1317) 330.
It is immaterial that PW3 was asked a question about Exhibit P7 (a). This is because not being its maker he was not in a position to answer any question thereon.
The requirement for documents to be tied to relevant aspects of a petitioners case and demonstration made as to how they apply to it is not satisfied by a witness simply touching the documents. He must go ahead and demonstrate how the documents apply to the case and not leave it to the judge/s to retire to their chambers to ferret out how the documents apply to the case of the petitioner. What is required, I re-state, is demonstration in open Court. The word demonstration means
1. To show something clearly by giving perfect proof or evidence
3. to show and explain how something works or how to do something Oxford Advance Learners Dictionary 7th Ed. Page 389.

Thus the witness is to show and explain how each of the documents and the entries therein relate to and affect the relevant aspects of the

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petition or case. Thus in the case of Omisore V Aregbesola (2015) 15 NWLR (Pt. 1482) 205, 323 Ogunbiyi, JSC, decried the fact that a witness,
could not also offer proper explanation of what specific relevance each document is to serve. See also Duriminiya v COP supra.
It should be noted that the PW3 did not say that he was at any of the polling units nor did he serve there. He was therefore not in a position to testify about over-voting. Over-voting occurs in polling units and no other place and can only be testified to by officers or polling agents who served there. In Ikpeazu v Otti (2016) 8 NWLR (Pt. 1513) 38, 92 Galadima, JSC, set out the law thus:
In proof of the allegation of over-voting, Petitioners bear the responsibility of calling eye witnesses from each polling unit to give evidence of the circumstances that led to over-voting preferably party agents. See also Ucha v Elechi supra. 350.
No polling agent in any of the twelve polling units was called and no officer who served in any of the units was called to testify. No explanation was given for their absence. The above

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consideration applies to the evidence of PW4 who was a ward collation agent. He identified exhibits P5, P6, P27 and P28 and stated that he discovered over voting from the polling unit results handed over to him by the polling unit agents. The tribunal rightly held at page 545 of the record that he was not a maker of any of the documents and therefore had no personal knowledge of their content. He was not even present when the documents were made. The fact that he was entitled to receive them did not qualify him to testify on them. Again, the fact that the documents were public documents, original or certified, does not advance his helpless position. The submission of appellants counsel that public documents are exempted from the position of the law that the maker of a document must testify to it before probative value can be attached to it does not represent the current state of the law especially in election jurisprudence.
The provenance of the current state of the law is traceable to the case of Buhari v Obasanjo (2005) 13 NWLR (PT. 941) 1 where INEC results for polling units in Ogun State described as authentic were tendered as exhibits. Uwais,

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CJN, noted at page 177 that the makers thereof did not testify and at page 182 stated that,
The documents the witnesses tendered were not in the absence of evidence of the maker, reliable.
This has been the trend followed by the Supreme Court in an avalanche of cases that drown the feeble submission of appellants case. See Buhari v INEC (2008) 18 NWLR (Pt. 1120) 246, 391, 392, Belgore v Ahmed (2013) 8 NWLR (Pt. 1355) 66, 100, Nyesom v Peterside supra. 522 and 526, Okereke v Umahi (2016) 11 NWLR (Pt. 1524) 483, 472, Udom v Umana (No. 1) 2016 12 NWLR NWLR (Pt. 1526) 179, 243-244 and Udom v Umana (No. 2) (2016) 12 NWLR (Pt. 1526) 270, 286.
In Belgore V. Ahmed Supra, certified true copies of INEC documents comprising ballot papers, Forms EC8As and Voters Registers were tendered as Exhibits across the Bar without objection. The Supreme Court at page 100 affirmed that no probative value could be placed on them as their makers did not testify on them.
The evidence of PW5 also suffers the fate of being hearsay. He was a District Collation agent of the 2nd respondent and not a polling agent. To underline the

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futility of his evidence, he stated in cross-examination at page 489 of the record that:
I only received reports from my polling agents. My statement is based on the report from the polling agents, ward collation agents. I did not witness any malpractices personally.
The star witness for the appellants seems to be the PW6. She was the INEC collation officer for Umme Electoral Ward. She testified that she received polling unit results from thirteen polling units of the ward. She cross checked each result and compared the same with the accreditation information on the card reader of each polling unit and the voters register; that there was over voting in twelve polling units. In cross-examination at page 495 of the record, she stated:
From the documents before me there is no over voting.
How then did she arrive at the conclusion that there was over- voting? The answer is in her evidence in cross- examination at page 495 of the record as follows:
The over-voting is not in the documents before me but in the card reader.
In the first place, the card reader and the

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card reader reports of the polling units were not tendered in evidence at the tribunal. Evidence relating thereto given by the PW6 was therefore hearsay. Furthermore card reader by itself cannot prove over-voting as it is not meant to take the place of voters register in showing over- voting. See Nyesom v Peterside supra. 525 and 540, Shinkafi v Yari supra 381 and Okowa v Emerhor (2016) 11 NWLR (Pt. 1522) 1, 30 where Okoro, JSC, stated that,
So, when the appellants herein proposed to prove over-voting by means of the card reader report only, it was a non-starter. The introduction of the card reader device does not suddenly wipe out and obliterate the traditional and age long method of proving over- voting. Rather it compliments it.
In Udom v Umana (No.1) supra. 254, Rhodes Vivour, JSC, put it ever more pungently thus:
On the simple position now, if 100 voters are on the register of voters. The card reader accredited 50 voters on the day of election, but 80 voters cast their votes on election day, there was no over voting since voters were less than those in the register of voters. The election

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would be nullified if the number of voters exceeds the number of voters in the register of voters. See also Okereke v Umahi supra 479 , 480.
Reliance was placed by appellants on exhibits P 70 and P 71 (unused ballot booklets). They were tendered from the Bar by appellants counsel on 21/5/2019 and admitted in evidence by the tribunal on 24/5/2019. See pages 496 and 503 of the record. Immediately thereafter appellants closed their case. No witness was called to tie the documents to any aspect of the case of the appellants. The documents were therefore as useless as a hole in a doughnut. The tribunal was right in not according probative value to them. It is true that the tribunal gave the wrong reason for the conclusion, viz; that they were not tendered with prior notice to the respondents, but it arrived at the right conclusion. An appellate Court is more concerned with whether the decision of a lower Court is correct than with whether a wrong reason was given for reaching a right decision. If the decision is right, it will be upheld though the reason for it is wrong. See MTN (Nig) Communication Ltd v CCI Ltd (2019) 9 NWLR (Pt. 1678)

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427, 493. I therefore respectfully turn down the invitation of appellants counsel for the Court to make appropriate findings with regard to the documents as I do not intend to engage in an inquisition or investigation.
The tribunal was right in holding that over-voting had not been proved.

In respect of arbitrary award of votes, the tribunal found at pages 547-548 of the record that,
In this case, the petitioners did not call any witness who saw where the agents of the 3rd respondent arbitrary awarded votes to the 1st and 2nd Respondents and other parties. Accordingly this allegation is not proved.
That is a specific finding of fact and there is no ground of appeal which specifically attacks it. In Chudi Verdical Co. Ltd v I.I (Nig) Ltd (2018) 16 NWLR (Pt. 1646) 520, 537 M. D. Muhammad, JSC, opined that:
The law is settled that any point of law and or/or facts not appealed against is deemed to have been conceded by the party against whom it was decided and the said points remains binding on the parties.
I shall therefore hold my peace on the point of arbitrary award of votes.
In respect of

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reduction of votes, the case of the appellants was that in Wambe East, the score of the appellant in form EC8B (1) (1117 votes) was reduced to 117 in form EC8C(1). The PW1 was the Local Government Collation agent of the 2nd appellant in Wambe Local Government Area. He testified that from the ward result handed over to him, he observed that the appellants were short- charged. The tribunal held at page 548 of the record that the PW1 was
neither a polling unit agent nor a ward collation agent for the 2nd petitioner at any polling unit in Wambe East Ward. He was the Local Government Collation agent and claimed to have discovered the reduction by examining the results handed over to him by the polling unit agents and ward collation agents of the 2nd Petitioner. The law is that he cannot give evidence of what transpired in any of those polling unit or ward collation centre.
I cannot fault the conclusion of the tribunal. In Andrew v INEC supra. 557 Okoro, JSC, stated that,
The appellants have admitted in their brief that the evidence of their witnesses did not arise from what they witnessed on election day when the entries

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in the electoral forms were being made but from findings which they came up with after observing and drawing inferences from the electoral forms It has to be noted that those witnesses did not take part in the conduct of the election nor were they present at any stage at which electoral forms, documents or material which formed the basis of their evidence were recorded, prepared or entries made
In an election matter the evidence required is not the one which was picked up from perusing documents made by others. Otherwise, any one with basic comprehension/arithmetic skills would be able to testify anywhere in Nigeria. The requirement of the law is that a Petitioner must call eye witnesses who were present when the entries in the forms were being made and can testify to how the entries in the documents were arrived at.
The evidence of PW1 did not advance the case of the appellant by even an inch. The evidence of the PW2 also falls into the same black hole as that of the PW1.
In respect of inflation of votes in Ungwan Makama OP polling unit 001 the case of the appellants was that the result

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as entered in form EC8A(1) was inflated for all the parties when the same was collated into form EC8B(1). The tribunal found at page 550 of the record that,
the PW4 was not the polling unit agent for 2 (sic) petitioner at Ungwan Makama where the alleged inflation of votes is alleged to have taken place. The question is how did he know what happened at Ungwan Makama when he was not present at the polling unit where the scores of each party was counted and collated. Whatever PW4 says on this issue is not direct and therefore hearsay evidence.
Where the allegation is that the votes in form EC8A(1) were inflated in form EC8B(1), the beginning point of the same is the evidence of the polling agent at the polling unit or the evidence of any officer who served there along with the polling unit result. This is because the polling unit result forms the foundation of any issue as to inflation of votes. Where scores of candidates are in issue, evidence to be led should come directly from the actual officers who were on the field where votes were counted.
See Agballah v Chime (2009) 1 NWLR (Pt.1122) 373, 433, 434. It is when

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satisfactory proof of the scores in Form EC8A(1) is given that form EC8B(1) will have a foundation to stand on to prove inflation of votes.

Finally the tribunal found at page 552 of the record that the appellants failed woefully to prove any of the allegations of non- compliance. Again there is no ground of appeal which attacks this specific finding and so it stands.

In view of what I have said so far, I enter an affirmative answer to the lone issue for determination and resolve it against the appellants.

On the whole the appeal lacks merit. I accordingly dismiss it with cost of against the appellants in favour of the 1st and 2nd respondents.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in advance the Judgment just delivered by my learned brother, Joseph Eyo Ekanem, JCA, wherein the issues raised in the Appeal were meticulously dealt with.

The reasoning and conclusion are in consonance wit’ my views on the issues raised in the Appeal. I therefore adopt them as mine.

Thus, for the reasons given in the lead Judgment, I also dismiss the Appeal for lacking in merit. I also abide by

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the consequential Orders made in the lead Judgment of my learned brother.

STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother Joseph Eyo Ekanem, JCA.

I am in full agreement with the reasoning and the conclusion that this appeal is lacking in merit.

I too for those reasons as ably advanced in the lead judgment do dismiss this appeal. I abide by the consequential orders inclusive of the order as to costs.

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Appearances:

John Mathew, Esq. with him, D. M. Tsevende, Esq. For Appellant(s)

Dr. M.T. Adekilekun with him, Dr. A.O. Sambo, O.W. Akanbi, Esq., B.L. Ibrahim, Esq. and A.A. Ahmed, Esq. for 1st respondent.

Matthew Burkaa, Esq. with him, Messrs H.A. Ibrahim, M.E. Usman, I.H. Nalaraba and M. Z. Oshafu) for 2nd respondent.

Hakim Bakare, Esq. for 3rd respondent.
For Respondent(s)

 

Appearances

John Mathew, Esq. with him, D. M. Tsevende, Esq. For Appellant

 

AND

Dr. M.T. Adekilekun with him, Dr. A.O. Sambo, O.W. Akanbi, Esq., B.L. Ibrahim, Esq. and A.A. Ahmed, Esq. for 1st respondent.

Matthew Burkaa, Esq. with him, Messrs H.A. Ibrahim, M.E. Usman, I.H. Nalaraba and M. Z. Oshafu) for 2nd respondent.

Hakim Bakare, Esq. for 3rd respondent. For Respondent