OKAFOR OKOREAFFIA & ANOR. v. HON. AGWU U. AGWU & ANOR. (2010)

OKAFOR OKOREAFFIA & ANOR. v. HON. AGWU U. AGWU & ANOR.

(2010)LCN/4037(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of November, 2010

CA/PH/EPT/668/2008

RATIO

DUTY OF COURT: WHETHER AN APPELLATE COURT HAS A DUTY TO DISREGARD AND EXPUNGE INADMISSIBLE EVIDENCE

The law is that it is the duty of this court as an appellate court to disregard and expunge inadmissible evidence. See ALH. SABIRIYU SHITTU v. OTUNBA OYEWOLE FASHAWE (2005) 7 SCNJ 337; ONOCHIE v. ODOGWU (2006) 2 SCNJ 96; THE DAGACI OF DERE & ORS. v. THE DAGACI OF EDWA & ORS. (2006) 1 SCNJ 16; BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at Pg. 177.” Per. OGUNWUMIJU, J.C.A (P. 27, paras. E-G) (…read in context PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ELECTION PETITIONS: WHETHER THE BURDEN OF PROOF IN AN ELECTION PETITION

To prove the petition is clearly the duty of the Appellants. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ADMISSIBILITY OF A DOCUMENT: WHAT ARE THE CRITERIA GOVERNING THE ADMISSIBILITY OF A DOCUMENT IN EVIDENCE

ADMITTED EVIDENCE: WHETHER ONCE EVIDENCE IS PROPERLY ADMITTED, IT CAN BE UTILIZED BY ANY PARTY TO THE PROCEEDINGS

The law is that once evidence is properly admitted, any party to the proceedings can utilize same to advance his cause. See OLUKOYA v. ASHIRU (2006) 5 SCNJ 107 at 118. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

Between

1. OKAFOR OKOREAFFIA
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)

AND

1. HON. AGWU U. AGWU
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 174 ORS. Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal, sitting at Umuahia, Abia State, delivered on the 14th day of November, 2008. The Tribunal gave judgment in favour of the Respondents as the winner of the election held on the 14th April, 2007 into the Abia State House of Assembly for the Arochukwu State Constituency.
The facts that led to this appeal are as follows:
The 1st Appellant contested the election to the Abia State House of Assembly for the Arochukwu State Constituency held on the 14th day of April 2007 on the platform of the Peoples Democratic Party (PDP) while the 1st Respondent contested on the platform of the Progressive Peoples Party (PPA). There were other candidates on the ballot.
The Independent National Electoral Commission (INEC) sued herein as the 2nd-176th Respondents announced the 1st Respondent winner of the election with a total votes of 2,388 votes while the 1st Appellant was ascribed with 460 votes.
The Appellants were aggrieved by the announced result and as Petitioners filed a petition before the Tribunal on the 14th day of May 2007 challenging the announcement of the 1st Respondent by the Independent National Electoral Commission (INEC) as the winner of the election aforesaid.
The grounds for the petition were two in number as stated in paragraph 8 of the petition to wit:
“(i)    That the 1st Respondent did not win the majority of lawful valid votes
(ii)    That the declaration, election or return of the 1st Respondent is invalid by reason of corrupt practices and non-compliance with provisions of the Electoral Act 2006 as amended.”
The Appellants by Notice of Appeal dated the 1st day of December, 2008 and filed on the 3rd day of December, 2008, which can be found at pages 935-958 of the record challenged the judgment delivered by the Tribunal on the 14th day of November, 2008 dismissing their petition. The judgment is at pages 889-933 of the record. The Appellant’s brief dated 16/1/09 settled by N. U. Nwokocha-Ahaaiwe Esq was filed on 19/1/09. The 1st Respondent’ brief dated 5/3/09 settled by O. A. Obianwu Esq SAN was filed on 6/3/09. The 2nd-176th Respondents’ brief dated 4/3/09 settled by Chidozie Ogunji Esq was filed on 6/3/09. At the hearing of the appeal on 28/9/10, the Appellant’s counsel argued that the two sets of Respondents’ briefs were filed outside the time allowed by the rules of court  and are incompetent and thus legally there is no Respondents’ brief before the court in accordance with Order 17 r 10 of the Court of Appeal Rules. Counsel also submitted that the 1st Respondent’s issues 1 & 2 are incompetent being derived from several grounds of appeal. It was also submitted that the 2nd-176th Respondents did not distill their issues from any of the grounds of appeal. In reply, learned senior counsel for the 1st Respondent argued that Order 17 r 5 & 9 of the Court of Appeal Rules, the Appellant must filed reply brief if he wishes to take issue with the Respondents’ brief. He submitted that all the arguments not supported by any brief of argument are untenable and must be discountenanced. He argued that the issues raised tantamount to laying ambush on the Respondents and is a breach of their right to fair hearing. Learned counsel for the 2nd-176th Respondents submitted that Order 19 r 5)1) enjoins a party seeking to strike out any process to file an application stating the grounds for such prayer.
Now, Order 19 r 5(1) provided as follows:
“5(1) An application to strike out or set aside for non-compliance with these Rules, or any other irregularity arising from the Rules of Practice and Procedure in this court, any proceedings or any document, judgment or order therein shall only be entertained by the court if it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.”
I strongly feel that in the circumstances of this case, being an election matter, the Appellant should have made a timeous application to court praying the court to strike out the Respondents’ brief for being filed out of time. Having failed to do so and thus taking the Respondents’ by surprise, their complaints cannot be countenanced. I think this is an instance in which this court will call in aid its powers under Order 19 r(2) & (3) to depart from the rules and grant waiver in respect of any non-compliance on the part of the Respondents. No useful purpose would be served and time would be wasted in insisting that the Respondents seek for extension of time etc to refile their papers. Time is of essence. Counsel for the 1st Respondent O. A. Obianwu Esq. SAN and counsel for the 2nd-176th Respondents Chidozie Ogunji Esq. both raised and argued notices of preliminary objection in their respective briefs. It is the duty of the court to determine the competence of an appeal immediately the issue is raised by the Respondents. See MKPEN TIZA v. IORAKPEN BEGHA (2005) 5 SCNJ 168. Therefore, I will do so instantly.
At the hearing of the appeal, the 1st Respondent withdrew grounds 1 and 3 of the grounds of objection and adopted only the arguments in respect of the 2nd ground of objection. The 2nd ground of objection is that Grounds 1-16 in the notice of appeal are altogether prolix, narrative and argumentative contrary to Order 6 r 3 of the Court of Appeal Rules. Counsel urged us to strike out all the grounds of appeal and relied on the following cases. See CBN v. OKOJIE (2002) 8 NWLR Pt. 768 Pg. 48 at Pg. 61; AGBARA v. AMADI (1998) 11 NWLR Pt. 572 Pg. 16; CCB v. NWOKOCHA (1998) 9 NWLR Pt. 564 Pg. 98; KHALIL v. YAR’ADUA (2003) 16 NWLR Pt. 847 Pg. 446 at 478-479; OGE v. EDE (1995) 3 NWLR Pt. 385 Pg. 564 AT Pg. 577 and also the cases of BANK OF CREDIT & COMMERCE INTERNATIONAL v. STEPHENS INDUSTRIES LTD. (1992) 3 NWLR Pt. 232 Pg. 772; GIWA-AMU v. GUARDIAN NEWSPAPERS LTD. (1999) 8 NWLR Pt. 616 Pg. 568; AKUCHIE v. NWAMADI (1992) 8 NWLR Pt. 258 Pg. 138; IDAAYOR v. TIGIDAM (1995) 2 NWLR Pt. 377 Pg. 359.
The complaints of the grounds being prolix argumentative etc were also raised by the counsel for the 2nd-174th Respondents. He relied on the following cases. FIRST BANK OF NIG. LTD. v. NJOKU (1995) 3 NWLR Pt. 384 Pg. 457; NSIRIM v. NSIRIM (1990) NWLR Pt. 138 Pg. 285.
I have read the notices and grounds of appeal as contained on pages 935-958 of Vol. 2 of the records. I agree that the grounds of appeal are indeed prolix and repetitive.  However, they are not vague or couched in general terms as not to disclose reasonable grounds of appeal which this court has to consider. Therefore they do not fall foul of Order 6 r 3 and are competent for consideration.
Learned counsel to 2nd-176th Respondents also argued that Ground 6 of the notice must be deemed abandoned because issue 3 as identified by the appellants was not distilled from Ground 6. I observed that  according to page 27 of the Appellants’ brief, issue 3 was in fact distilled from Grounds 4, 5, and 16.  Upon submissions by the Respondents at the oral hearing of this appeal, the Appellants had abandoned issue 5 on 28/9/10 and the issue had been struck out.
It is my humble view that neither the learned Respondents’ counsel advanced any substantial reason to convince me to hold the grounds of appeal or issues distilled therefrom incompetent. The grounds though prolix served the purpose of letting the Respondents know precisely the Appellants’ complaints against the judgment of the Tribunal. All the preliminary objections are misconceived and are hereby dismissed.
The Appellants identified the following issues for determination:
1. Whether the lower Tribunal was right in holding that Appellants/Petitioners failed to establish that the 1st Petitioner and not the 1st Respondent was duly and validly elected by majority of the valid lawful votes cast in the election. (Grounds 6, 7, 8, 9, 10, 11 and 12)
2. Whether the lower Tribunal was right in holding that the 1st Respondent won the majority of the lawful votes cast at the questioned election when he did not produce a single documentary evidence in defence of the petition (Grounds 2, 3, 13 and 14).
3. Whether the lower Tribunal was right in holding in effect, that the 2nd-176th Respondents were entitled to rebut the presumption of genuineness of the results declared by them by producing and relying at the trial of the petition on results totally different from those used in the declaration of the contested results. (Grounds 4, 5, and 16).
4. Whether the lower Tribunal was right in holding that the Appellants/Petitioners had not in the alternative, proved that the questioned election was void and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act. (Ground 15).
5. Whether the judgment of the lower Tribunal is not against the weight of evidence. (Ground 19).
The 1st Respondent identified four issues for determination as set out below:
1) Was the Tribunal correct in its conclusion that the Appellants failed to prove that the 1st Appellant and not the 1st Respondent won the majority of lawful votes cast at the election (Grounds 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, and 14).
2) Was the Tribunal correct in its conclusion that all the forms EC8A(i) series tendered by the 2nd-176th Respondents were relevant in determining the winner of majority of lawful votes cast at the election (Grounds 3, 14 and 16).
3) Was the Tribunal correct when it held that the Appellants did not prove that the questioned election was void by reason of corrupt practices and non-compliance with the provisions of the Electoral Act (Ground 15).
4) Is the judgment of the Tribunal consistent with the weight of evidence (Ground 19)?
The 2nd-176th Respondents also distilled similar issues as follows:
a) Whether the lower Tribunal was right in holding that the Appellants failed to establish that the 1st Appellant won the majority of the lawful valid votes cast at the election.
b) Whether the learned trial Tribunal was right in holding that the Appellant by their evidence adduced at the trial failed to prove their petition.
c) Whether the lower Tribunal was right in its computation of the results of the election as pleaded and tendered by the 2nd-176th Respondents.
d) Whether the learned trial Tribunal was right in its decision that the election was not void or invalid by reason of corrupt practices and non-compliance.
e) Whether the judgment of the lower Tribunal is against the weight of evidence.
As I am entitled so to do and in order to properly crystallize the issues distilled for determination by the parties which would affect the outcome of this appeal, I have formulated three issues for determination as follows:
1. Whether the Tribunal was correct in holding that the Appellant failed to prove that the 1st Respondent did not win the majority of lawful votes cast at the election.
2. Whether the Tribunal was correct in its computation of the results of the election as pleaded and proved by the 2nd-176th Respondents.
3. Whether the Tribunal was right in holding that the Appellants had not in the alternative proved that the questioned election was void and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act.
ISSUE ONE
Learned Appellants’ counsel argued that it is the case of Appellants as Petitioners that scores lawfully and validly obtained by the 1st Appellant at the said election were unjustifiably, unreasonably and unlawfully not collated and relied on in the computation of the scores and results of the election. The Appellants pleaded reliance on copies of forms EC8A(i)s for various polling stations returned to them by their various polling stations agents or obtained from INEC in respect of the election. These results, which were front-loaded, were eventually tendered in evidence by the Appellants at the trial of the petition. The lower Tribunal admitted in evidence the carbon copies of said results returned to the Appellants by their agents while rejecting the photocopies obtained from INEC but which the latter did not certify.
Appellant’s counsel further argued that the case of the 1st Respondent was that the only genuine, valid and lawful scores or votes obtained by the candidates at the election were those used by the 2nd Respondent in declaring the results of the election. He further pleaded that all other results except those used in computing and declaring the results are unlawful, invalid and products of an unlawful election and should be discountenanced.
Counsel submitted that both parties were bound by their pleadings and that was the case the Appellants prepared to meet during the trial. Counsel also argued that the 2nd-176th Respondents also equally pleaded in paragraphs 4, 9, 12, 17, 18, 23, 25 of their reply to the petition that the only valid, lawful and genuine votes scored by the candidates were those used in the computation and declaration of the results of the election. Counsel submitted that the two sets of Respondents are bound by their pleadings and that in this con they are bound by the score of 2,388 votes declared for the 1st Respondent. He cited ATOLAGBE v. SHORUN (1985) 4 SC Pt.1 Pg. 250; GEORGE & ORS. v. DOMINIC FLOUR MILLS LTD. (1963) 1 ALL NLR Pg. 71.
Learned Appellants’ counsel then submitted that in law the 1st Respondent was bound by the score of 2,388 and not 10,777 votes the Tribunal allocated to him. Counsel further submitted that the question is now whether the Appellants established a figure of votes lawfully obtained by them at the questioned election which is over and above the 1st Respondent’s 2,388 votes to enable this court declare the 1st Appellant the winner of the election by the majority of votes cast. Counsel argued that the Appellant pleaded and tendered the statutory forms which showed an addition that he scored a total of 12,730 votes at the election. However, the Tribunal rejected uncertified photocopies of some of the results tendered. After deducting scores from the uncertified photocopies, the 1st Appellant is claiming a total of 8,492 votes
Learned counsel then went on to submit that the Tribunal was wrong in rejecting the unit results tendered by the Appellants in proof of their scores at the election. Counsel argued that the case of HARUNA v. MODIBO (2004) 16 NWLR Pt. 900 Pg. 487 and others were inapplicable. Counsel argued that the unit result forms as tendered by the Appellants were not only admissible but of the highest probative value and that the Tribunal was wrong to have refused to consider them. He cited NWOBODOH v. ONOH (1984) 1 SCNLR Pt. 1 at Pg. 29-30; NNADI v. EZIKE (1999) 10 NWLR Pt. 622 Pg. 226; OMOBORIOWO v. AJASIN (1984) 1 SCNLR 108; ADEBAYO v. MAIYAKI (1991) 1 LRECN Pg.1.
Counsel also argued that the documents are admissible by virtue of S.91(2) and 91(5) of the Evidence Act.
Learned counsel further submitted that once the unit results were admitted in evidence, it was wrong of the Respondents to challenge their admissibility and/or weight to be attached to those results. He argued that it was no longer open for the Respondents to challenge their admissibility having not opposed their admission at first instance as they were admissible evidence, since issue of weight to give evidence is different from admissibility. He cited KOSSEN NIG. LTD. v. SAVANNAH BANK NIG. LTD. (1995) 9 NWLR Pt. 420 Pg. 439; LAWSON-JACK v. SPD NIG. LTD. (2002) 13 NWLR Pt. 783 Pg. 180; AJIBOLA v. POPOOLA (1997) 4 NWLR Pt. 498 Pg. 206; OMEGA BANK NIG. PLC v. O.B.C. LTD. (2005) 8 NWLR Pt. 928 Pg. 547.
Lastly, learned Appellants’ counsel argued that even though the 1st Respondent pleaded the 2,388 votes given to him by INEC, he failed totally to defend them and did not tender any unit results to support them but rather relied on the results tendered by 2nd-176th Respondents – INEC. He argued that the 1st Respondent after pleading the documents he will rely on cannot be allowed to rely on different documents. He cited AWUSE v. ODILI (2004) 8 NWLR Pt. 876 Pg. 481.
Counsel argued that the Tribunal misapplied the case of ADETOUN OLUKOYA  v. ISAMOTU ASHIRU (2006) 5 SCNLR 107 in holding that either party could apply properly admitted evidence from any party in support of his case. Counsel argued that it is only the evidence of an adverse party that can be used and not that of a co-respondent who had not joined issue with the party.
In answer to the submission above, learned senior counsel for the 1st Appellant O. A. Obianwu Esq. SAN argued on the issue of the admissibility and credence to be lent to the documents tendered by the Appellants that the Tribunal was right in holding that no weight could be attached to the unit results tendered by the Appellants. He submitted that by S.150(1) of the Evidence Act, there is a presumption of genuineness of the election result as declared by INEC – the 2nd-176th Respondents. He cited BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at Pg. 225; NWOLE v. IWUAGWU (2005) 16 NWLR Pt. 952 Pg. 570.
Senior counsel submitted that it is not in dispute that the 2nd Respondent declared the 1st Respondent winner of the election via Exh. 26A and that this is supported by Exh. 14A-Exh. 22L being certified true copies which by Section 114(1) of the Evidence Act are presumed to be genuine or authentic.
He further argued that the Appellants adduced no legally admissible evidence by law to rebut the presumption of genuineness of the documents tendered by INEC – the 2nd-176th Respondents. Counsel also argued that even though the Appellant produced Exhibits 3A-12B said to be duplicate originals returned by agents, no agent identified any of these results as what he returned. PW3 to whom the results were said to have been returned did not say he received any or all of these results from any party agent. PW1 did not witness the making of any or all of the results and agreed he did not make any of them. No witness called by the Appellants claimed authorship of these results or any of them. Since the Respondents had categorically stated that the result relied upon by the Appellants were not authentic, the burden on the Appellants was onerous. Indeed, there was no evidence explaining the failure to call the makers of the exhibits as witnesses.
Senior counsel argued that in the circumstances, the unit results tendered by the Appellants which were admitted in contravention of S.91(1) (b) of the Evidence Act were properly given no probative value by the Tribunal because they constituted documentary hearsay.  He relied on BUHARI v. OBASANJO supra at Pg. 315 and in the following cases. HARUNA MODIBBO (2004) 16 NWLR Pt. 900 Pg. 487 at Pg. 544-545; UNION BANK v. ISHOLA (2001) FWLR Pt. 81 Pg. 1868; OLATOMI IND. LTD. v. NDIC (2002) FWLR Pt. 131 Pg. 1984; G. CHITEX v. OCEANIC BANK (2005) 7 SCNJ 278; OMEGA BANK v. O.B.C. (2005) 1 SCNJ 150; AP v. OWODUNNI (1991) 8 NWLR Pt. 210 Pg. 391; BUHARI v. OBASANJO supra; NWOLE v. IWUAGWU supra.
On the argument of learned Appellants’ counsel that the 1st Respondent failed to produce a single documentary evidence to defend the petition, learned senior counsel argued the view that the Tribunal was right because no burden of proof shifted to the Respondents since the Appellants documents had not disproved the presumption of correctness of the election results as announced. Learned senior counsel argued that the 1st Respondent was perfectly entitled to rely on Certified True Copies of results produced by the 2nd Respondent since he had pleaded the same results. He cited JACOB v. A.G. AKWA IBOM STATE (2002) FWLR Pg. 575; OLUKOYA v. ASHIRU (2006) 5 SCNJ 107.
Learned counsel for the 2nd-174th Respondents’ Chidozie Ogunji Esq. in his own brief, on the issue as raised, argued that in the determination of who scored majority of lawful votes, the documents tendered and the probative value to be attached to them are of primary importance. He relied on NGIGE v. OBI (2006) 14 NWLR Pt. 999 Pg. 1 at Pg. 49; NWOLE v. IWUAGWU supra. Learned counsel argued that the Appellants asserted and pleaded that they won and tendered Exh. 1-Exh. 12 which are forms EC8A they secured from their agents on the field, therefore such results must have the probative value of proving that the Appellants won the election. Counsel argued that the Appellants were not able to prove their assertion by the evidence led. Counsel argued that the Appellants failed to call the agents who partook in making up the results, nor did any witness identify any of the unit results during evidence. Counsel argued that the Appellants’ contention that having sued all the presiding officers as parties, there was no need to call them as witnesses is quite erroneous and quite contrary to all the judicial authorities. He cited AROJOJOYE v. NATA RUBBER CO. LTD. (1966) 1 SCNLR Pg. 89; BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at 315; ACHORA v. A.G. BENDEL (1990) 7 NWLR Pt. 160 Pg. 92.
Counsel submitted that all the reasons given by Appellants’ counsel as to why the Appellants could not be expected to call numerous witnesses, no matter how brilliant does not constitute the state of the law. He cited CHIME v. EZEA (2009) 2 NWLR Pt. 1125 Pg. 8, 263 at 295 Ratio 38; UBN PLC v. AYODARE & SONS NIG. LTD. (2007, ALL FWLR Pt. 383 1 at 42 paragraphs F-G; ODUTOLA v. COKER (1981) 5 SC.197; BAYO v. NJIDA (2004) ALL FWLR Pt. 192 Pg. 10.
Counsel then argued that Exhibits 14A-14B, 15A-15F, 16A-16B-17L, 18A-18Q, 19A-19J, 21A-21M, 23A, 22I, 24A, 25A, 26A and 26B were produced by INEC on demand by the Appellants who gave the 2nd-5th Respondents notice to produce the documents at the trial. By the provisions of S.311 of the Evidence Act, a party given notice to produce document shall produce such document. In ONWUDINJO v. DIMOBI (2006) 1 NWLR Pt. 961 Pg. 317, it was clearly stated that the party who called for such document shall be bound by it. See also A.G. ENUGU STATE v. AVOP PLC (1995) 6 NWLR Pt. 399 Pg. 90.  Counsel then urged this court to hold that the documents which the Appellants have requested for and which have been given to them are their document which they must either sail joyfully with or sink sorrowfully with. Counsel finally argued that the results relied on by the Appellants were proved to have been substantially defective in many regard by alterations, cancellations etc during the trial of the petition. He urged the court to reject these results.
In the determination of this issue, I have to divide it into two legs. The appellants are challenging the finding of the Tribunal on those two premises.
1. That the unit results tendered by the Appellants were of no probative value.
2. That the 1st Respondent could rely on the documents pleaded and tendered by the 2nd-176th Respondents.
On the 1st leg of this issue, the Tribunal held as follows on Pg. 925 of Vol. 2 of the record of appeal:
“Again, since the Respondents have challenged the authenticity of the documents or exhibits, the petitioners needed to call their makers to support the documents with evidence to enable us have the right to attach weight to them. Having failed to do so, the Tribunal is deprived of the right to attach weight to them.”
A reading of the judgment shows that the Tribunal found as follows:
1) PW1 admitted he did not make the documents and they were not made in his presence but were given to him by his agents.
2) No agent identified any of the results as what he received and returned.
3) PW3 to whom the results were said to have been returned did not say he received any or all of the exhibits.
4) No witness called by the petitioners claimed authorship of the results.
5) In so far as the petitioners sought to establish the truth of the contents of the exhibits, they were hearsay and of no probative value.
6) There was no evidence from the petitioners to show that undue delay and expenses would be caused by insisting on the presence of makers of the exhibits.
7) The fact that the makers of the documents where Respondents did not excuse the failure of the petitioners to place evidence before Tribunal excusing the absence of the makers of the exhibits. The court could not speculate or resort to conjecture.
Now, My Lords, S.91 of the Evidence Act is set out below:
“91(1)In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied –
(a) If the maker of the statement either –
(i) Had personal knowledge of the matters dealt with by the statement or.
(ii) Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters and
(b) If the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be called as witness need not be satisfied if he is dead, or unfit by reason of the bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence –
(a) Notwithstanding that the maker of the statement is available but is not called as a witness;
(b) Notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be true copy in such manner as may be specified in the order or as the court may approve as the case may be.
(3) For the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initiated by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible.
(4) For the purpose of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner, and where the proceedings are with a jury, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interest of justice that the state should be admitted.”
Let me explain right off that learned Appellants’ counsel with the greatest respect grossly misinterpreted the facts and thus the ratio decidendi of the Supreme Court in NWOBODO v. ONOH (1984) NSCC Pg. 1 at Pg. 18, Bello JSC (as he then was) delivering the judgment of the court in summarizing the uncontested facts before the lower court said inter alia at paragraph 20 of page 10 of NSCC.
“To prove his case, the petitioner called his agents, some assistant returning officers and two officers of NSO as witnesses who rendered their own copies of the results and the trial court admitted the same in evidence and acted upon them in reaching its decision. (underlining mine)
From the above, it is clear that the results forms were tendered in court by party agents or officials to whom they were issued thus satisfying the provisions of S.91(1) of the Evidence Act. The bone of contention in that case was whether the copies of original given to party agents and tendered by them formed primary or secondary evidence. The Supreme Court was of the view that they constituted “original copies” and should be treated as primary evidence under S.93 of the Evidence Act and admissible in evidence. Please note that the Law Lords were unanimous in this view.
Thus where an “original copy” is tendered by the maker, the document is admissible. However, an original copy of a unit or ward result can only be tendered by a witness who was not the maker after it has been certified.
Uwais CJN was emphatic on this point in BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at Pg. 177 paragraph D and Pg. 182 paragraph F. Akintan JSC  also put it explicitly –
“The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field where the votes were counted and/or collated. The state party agents, such as Bisi Lawal (PW1), received the figures he gave in his evidence in court in this case from his party’s agents who were not called as witnesses. Such evidence is therefore inadmissible as it is hearsay. See OMOBORIOWO v. AJASIN (1984) 1 SCNLR 108; and HASHIDU v. GOJE (2003) 13 NWLR Pt. 843 Pg. 352 at 386.”
The Supreme Court Justices even though they were aware of the effect of the state of the law – to wit that Election Tribunals would suffer undue delay because of the number of agents, witnesses etc that the petitioner would need to call to prove his case still held to that view. On page 42 of the Appellants’ brief, the Appellants recited a litany of reasons why the above interpretation of the law by Supreme Court is absurd, unpractical and impossible. The reasons ranged from the need to compile witness depositions for hundreds of witnesses, some of whom could be unknown ad hoc electoral officers, or applying for subpoena for INEC to tender the results in their custody, etc. I for one am in sympathy with all the above reasons. This is a misgiving shared by my humble self and Pats-Acholonu JSC of the Supreme Court. In BUHARI v. OBASANJO supra, Pats-Acholonu JSC at Pg. 299 expressed his misgiving about the effect of the law where he said –
“The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call due to the size of the respective constituency. In a country like our own, he may have to call about 250,000 – 300,000 witnesses. By the time the court would have heard from all of them with the way our present law is couched, the incumbent would have long finished and left his office and even if the petitioner finally wins, it will be an empty victory beret of any substance.”
I agree with my Lord, Pats-Acholonu. However, that is the state of the law. Notwithstanding the delay and practical problems involved, the law is clear that those documents were intrinsically inadmissible.
Thus, the proviso to S.91(1) cannot be used as an excuse by any petitioner with the burden of proving his petition, for not  calling all necessary witnesses except when the attendance of the witnesses cannot reasonably or practicable be secured. The Appellants never pleaded such inpracticability before the Tribunal.
The problem with the unit results tendered by the Appellants is that they were not certified. They emanated from them.  Public documents in your possession must be certified to be admissible in evidence. It is immaterial whether they were pleaded and were relevant to the proceedings. This was made clear in BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at Pg. 177 where the Supreme Court rejected the 140 unit results tendered by one Bisi Lawal,  Ogun State Governorship candidate of ANPP because the results being uncertified by INEC were not tendered by the makers. In this case, the polling agents of the Appellants who were given these duplicate copies at the unit level must identify their signature on the duplicate copy as one of the authors of the document. Without that, the documents being uncertified by the custodian of the original – 3rd Respondent would be regarded as documentary hearsay and rendered inadmissible as evidence.
The law is that it is the duty of this court as an appellate court to disregard and expunge inadmissible evidence. See ALH. SABIRIYU SHITTU v. OTUNBA OYEWOLE FASHAWE (2005) 7 SCNJ 337; ONOCHIE v. ODOGWU (2006) 2 SCNJ 96; THE DAGACI OF DERE & ORS. v. THE DAGACI OF EDWA & ORS. (2006) 1 SCNJ 16; BUHARI v. OBASANJO (2005) 13 NWLR Pt. 941 Pg. 1 at Pg. 177
The makers are not only the presiding officers. The different agents of the different political parties who signed or initialed the documents are all makers of the documents and any of them could have testified. I agree with learned 2nd-176th Respondents’ counsel that the Appellants are quite off target in the argument that the presiding officers are parties therefore they need not be called in evidence to give life to the document.
There is a world of difference between being a party in a proceedings and been called to testify. The testimony of witnesses and document are what makes up the evidence that the court can rely on. To prove the petition is clearly the duty of the Appellants.

In OKONJI & 2 ORS. v. NJOKANMA & 2 ORS. (1999) 14 NWLR Pt. 638 Pg. 250; (1999) 12 SCNJ 259 at 275, Achike JSC laid down the general main criteria governing the admissibility of a document in evidence namely:
1.    Is the document pleaded?
2.    Is it relevant to the inquiry being tried by the court and
3.    Is it admissible in law?
The Supreme Court also held that it must be borne in mind that admissibility of a document is quite different from the weight to be attached to it. It is only when it is admissible that the court considers the weight to be attached to it.
Thus, in my humble view, the “original copy” of a unit or any election result is admissible only through one of the makers or an official to whom it was issued. The weight to be attached to the document depends on the circumstances attendant on the execution of the document.
I am of the view that the learned Tribunal was quite right in its decision to lend no credence to the evidence of the unit results tendered by the Appellants.
The 2nd leg of this issue is whether the 1st Respondent could rely on the documents pleaded and tendered by the 2nd-176th Respondents. Appellants’ counsel’s argument that the exhibits tendered by the 2nd-176th Respondents cannot be relied on by the 1st Respondent is with the greatest respect misconceived given the circumstances of this case. The law is that once evidence is properly admitted, any party to the proceedings can utilize same to advance his cause. See OLUKOYA v. ASHIRU (2006) 5 SCNJ 107 at 118. The 2nd-176th Respondents were the persons authorized by law to conduct elections and declare the winner. Election results tendered by their officials are deemed to have emanated from the proper custody of the maker. The witness tendered certified True Copies of the original results in the custody of INEC.
The 1st Respondent can do no better than to rely on such results. In fact it would be foolish of him not to do so since it was the same results he pleaded. The 1st Respondent had pleaded primary evidence which are the results collected by his agents. Those agents would have needed to be called as witnesses.  What better strategy than to rely on the evidence of a co-respondent who had Certified True Copies of the documents? See JACOBS v. A.G. AKWA IBOM supra. For reasons given above, the 2 legs of this issue are resolved against the Appellants.
ISSUE TWO
Issue 2 is whether the Tribunal was right in its computation of the election as pleaded and proved by the 2nd-176th Respondents.
The kernel of the Appellants’ complaint on this issue is that INEC acting through the 2nd-176th Respondents having declared the 1st Respondent winner of the election and ascribed specific votes to all the candidates, cannot turn around during the trial to plead and prove other scores not used in computing the winner when the declaration was made. That is to say, INEC cannot legally be allowed to rebut the correctness of the result it had released. Learned Appellants’ counsel argued that 2nd-176th Respondents sought to discredit its own figures in paragraphs 46, 47 and 48 by pleading other figures as being the correct scores of the candidates and by so doing INEC has shot its own leg. He cited ADEREMI JCA in NGIGE v. OBI (2006) 14 NWLR Pt. 999 Pg. 1 at Pg. 196-197 to the effect that INEC is obliged no matter the circumstances to stand by the results it had declared.
The Appellants’ counsel argued that the Respondents had in their separate pleadings averred that the results from the other wards in the constituency were rightly discountenanced and not used in the collation of final declared results. The lower Tribunal however, decided to rely on the same results the Respondents said were not credible. In doing so, the lower Tribunal held that they accepted the said results as being results of the wards that were received but not collated because they came late.
Learned senior counsel for the 1st Respondent argued that the view expressed by the Appellants that the Respondents relied on a different result from the one used in the declaration of results is completely misconceived. Counsel argued that it was common ground that the 1st Respondent was declared winner by virtue of Exhibits 14A-F, 15A-H and 16A-B. The 1st Respondent pleaded in paragraph 28 of his reply why this was so. Again he pleaded in paragraph 30 that after the declaration, the results for all the areas where elections took place except parts of Ututu (1st Appellant’s home) were returned. He further pleaded that if all the results are computed he still won the election.
Senior counsel argued that the results of the other seven wards not used in the declaration which also showed that the 1st Respondent won the elections are Exh. 17-22. The Tribunal believed the evidence of 1st Respondent’s witnesses rather than that of the Appellants that the results of the seven wards that were received but not collated was because they came late. Senior counsel also argued that this court should not interfere with the findings of fact of the Tribunal based on the credibility of witnesses regarding the conduct of the election. He cited OKPIRI v. JONAH (1961) ALL NLR 102; AKINLOYE v. EYIYOLA (1966) NMLR 92; ONWUBO v. NDUBA (1972) 2 SC. 106.
Senior counsel argued that the 2nd-176th Respondents produced Certified True Copies of the results at the Tribunal and thus the Tribunal being possessed of all the genuine results, the Tribunal relying on NGIGE v. OBI (2006) 14 NWLR Pt. 999 Pg. 1 at Pg. 161-162 and ADUN v. OSUNDE (2003) 16 NWLR Pt. 847 Pt. 643 at 666-667 had no option but to compute them in order to determine who won majority of lawful votes.
Learned counsel for the 2nd-176th Respondents argued that the contention of the Appellants is baseless in view of the pleading of the parties and evidence led. Counsel argued that the learned trial Tribunal was perfectly in order in its decision as the parties had invited the Tribunal to collate the results, which collation the Honourable Tribunal is so empowered to do. He cited ADUN v. OSUNDE (2003) 16 NWLR Pt. 847, Pg. 643 at 666-667.
Counsel argued that the Tribunal who heard and saw the witnesses appreciated clearly the fact of the whole results not being collated by virtue of the disturbances in Ututu ward which made it impossible for all the results to be collated at the time the results was declared.
I am of the humble view that this issue turns on the pleadings of the parties. The Appellants pleaded in paragraphs 9 and 10 of the petition and pages 9 and 10 of the record as follows:
9. Your petitioners stated that the questioned election was held on the 14th day of April, 2007 and that several days after 14th April 2007, the 2nd-5th Respondents or any of them announced or declared that the 1st Respondent scored or received 2,388 (two thousand three hundred and eighty-eight) votes and that your 1st petitioner was said to have received or scored 460 (Four hundred and sixty) votes. On the basis of the above stated figures or scores the 1st Respondent (Hon. Agwu U. Agwu) was declared or returned as the winner of the said election by the 2nd-5th Respondents, who failed or refused to give your petitioners copy or copies of the Form EC8B(1), Form EC8C(1) and the declaration Form EC8D(1). Your petitioners dispute this announcement, declaration or return of the 1st Respondent as being arbitrary, incompetent, wrongful, undue, invalid and contrary to law.
10. Your petitioners stated that the 1st Respondent was not duly and validly elected or returned in that the 1st Respondent did not score majority of the valid lawful votes cast at the election in about 149 polling stations/units in the 11 wards of Arochukwu State Constituency and so the 1st Respondent was not entitled to be declared or returned as the winner of the questioned election.
The petitioners pleaded further:
“Your petitioners say that when the polling stations/units results are properly tabulated polling booth/station/unit by polling booth/station/unit and ward by ward, as has been done in the attached performance breakdown of the parties/candidates, as averred in paragraph 19, the true scores of the candidates/parties will be as follows:
“From the above, your 1st petitioner scored majority of the valid lawful votes cast at the election and therefore ought to have been declared or returned as the winner of the election. The petitioners will pray the Honourable Tribunal to accept the above figures as correct and genuine lawful scores/votes cast in the election.”
The 1st Respondent was declared winner on the basis of Exh. 14A-F, 15A-H and 16A-B. In paragraphs 28-33 of the 1st Respondent Reply to the petition, the 1st Respondent replied as follows as set out on pages 175-176 of the record:
28.    As a result of the disruptive activities and malpractices perpetrated by petitioners and their agents, the results from the other wards could not reach the Local Government collation centre in time. Since it was indeed late and based on the reports reaching the INEC office that petitioners were very busy trying to disrupt elections and manipulate the results and since other results were not then readily coming in, the INEC officials declared the results for the constituency based on the results they had then collated namely:
WARD          PDP             PPA
AROCHUKWU…………        21          14
OHAFOR ………………..    141         1460
ELEOHA………………….    664        1076
TOTAL       =                   826        2550
29.    Consequently, 1st Respondent was then declared the winner based on the results from the three wards.
30.    Eventually the results from all the units and wards (excluding those parts of Ututu where petitioners, Mrs. Ann Imoko and their agents perpetrated their malpractices) were returned. 1st Respondent avers that the correct results from the collation of scores in the units in the wards where elections actually took place are as follows:

WARDS             PDP          PPA
OVUKWU   ……………………….196          1216
OHAEKE   ……………………..   1182           233
OHAFOR 1   ……………………..351          3346
OHAFOR 11 …………………     141          1460
AROCHUKWU I……………….    609           293
AROCHUKWU II …………….     145             88
AROCHUKWU III…………….      21             14
IKWUN IHECHIOWA ……….    189            706
ELEOHA IHECHIOWA ………     664          1076
UTUTU ………………………    210          1281
ISU ………………………….    244           998
TOTAL              =               3952          10711

31. The above results are hereby pleaded and shall be relied
upon at the hearing. The Forms EC8As and EC8Bs shall equally be relied upon to substantiate this position.
32. 1st Respondent therefore contended and shall urge the Tribunal to hold that even if all the correct/authentic scores were used to declare the results, 1st Respondent would still win based on the above correct/authentic results.
33. 1st Respondent equally contends in the alternative that even if the tainted/objected results from the greater part of Ututu (17 units) were rejected, cancelled and or discountenanced by INEC were added to the above results from the respective wards, 1st Respondent would then score 11094 votes, while 1st petitioner would score 8624 votes. By this score, 1st Respondent would still be the winner with a margin of 2470 votes.”
On its own part the 2nd-176th Respondents in their own reply pleaded at paragraphs 46-48 on page 408 of the record as follows:
“PARAGRAPH 46
Eventually the results from all the units and wards (excluding those parts of Ututu where petitioners and their agents perpetrated their malpractices) were returned. The correct results from the collation of scores in the units in the wards where elections actually took place are as follows:
WARDS            PDP       PPA
OVUKWU   …………………………..196       1216
OHAEKE   …………………………….1182        233
OHAFOR 1   ………………  351       3346
OHAFOR 11 ………………………….141       1460
AROCHUKWU I………………………  609       293
AROCHUKWU II …………………….. 145       88
AROCHUKWU III……………………..   21       14
IKWUN IHECHIOWA ………………..  189       706
ELEOHA IHECHIOWA ………………. 664       1076
UTUTU ……………………………….. 210       1281
ISU …………………………………… 244        998
TOTAL                       =        3952       10711
PARAGRAPH 47:
The above results are hereby pleaded and shall be relied upon at the hearing. The forms EC8A(1)s shall equally be relied upon to substantiate this position.
PARAGRAPH 48:
Respondents therefore contend and shall urge the Tribunal to hold that even if all the correct/authentic scores were used to declare the results, 1st Respondent would still win based on the above correct/authentic results.
The Tribunal at page 923 of the record took this view as set out below:
“In this instance also, all the forms EC8A(1) series tendered by the 2nd-176th Respondents and admitted in evidence are all relevant for the proof and determination of the entire case, the 2nd-176th Respondents as posited by their pleading. Hence, those documents are not stripped of their probative value on the mere ground, without more, that they were not tendered only in relation to the declared result. Notwithstanding that the 1st Respondent did not tender any document, he is thereby not inhibited from relying on the documents or Exhibits tendered by the 2nd-176th Respondents. Indeed, in the case of ADETOUN OLUKOYA v. ISAMOTU A. ASHIRU (2006) 5 SCNJ 107, the court here held that either party could apply properly admitted evidence in support of his case. The 2nd-176th Respondents in paragraphs 46, 47 and 48 of their reply only provided explanation as to why the collated results of the other seven (7) wards excluding some parts of Ututu ward which they stated were not collated in the final results declared and further stated that even if those results were collated and added to the final results, the 1st Respondent would still have emerged winner of the election. This does not in the least contradict or discredit the results declared by INEC. The INEC cannot in the circumstance be said to have shot itself in the leg. The case of NGIGE v. OBI (supra) is therefore inapplicable. We accept the said results as being the results of the wards that were received but not collated because they came late.”
The basis of the Appellant’s case at the Tribunal was that all the election results were not collated before the 1st Respondent was wrongly declared winner of the election by the 2nd-176th Respondents and that if all the election results had been properly collated he would have won the election. It is clear that all the parties by their pleadings had urged the Tribunal to evaluate the documentary evidence as led before the court and arrive at a just decision. The Tribunal held as follows in justifying their decision to consider all the scores at the election including those not used to declare the election on page 930 of the record –
“Be that as it may, there is evidence before us that the election held in all the wards of the Constituency, barring some few units, and that election results were produced. The results thus produced are Exh. 17A-22M. We equally have evidence before us that the trouble in Ututu ward delayed the submission of the results for the other wards, and the attendant non-collation of the announced results, i.e. Exh. 17A-22M was tendered by the 2nd-176th Respondents who have the statutory duty for collating results. The authenticity of results has not been impugned by evidence. It is common ground that only the results of three out of the ten wards in the Constituency were used in announcing the result for the Constituency. Having shown in the instant petition that elections took place, and to give vent to the choice of the people through the vote, this Tribunal is empowered in the event to collate and compute election results where it appears that the results were either inflated or wrongly collated. This mandate given to the Tribunal is to enable the candidate with the majority votes to be so declared. Reliance is placed on the authorities of NGIGE v. OBI (2006) 14 NWLR Pt. 999, Pg. 1 at Pg. 161-162.”
I am inclined to agree that in the quest for truth, the Tribunal having been invited to enquire by the parties were obliged to consider all the unit results tendered by INEC and to make a finding on them on the question of who actually won the election by a majority of valid votes.  The Tribunal in my humble view was not bound by the figures initially pleaded by the parties. Was the Tribunal expected to throw up its arms in helplessness because the Respondents pleaded a figure with which it declared the results whereas the actual computation showed something different? Where the final figures collated by the Tribunal from admissible documentary evidence is different for one reason or the other from the one used to declare the results, so long as it would not lead to a miscarriage of justice, the Tribunal is duty bound to make a finding on the correct figures.
Where the outcome of an election is challenged on the grounds that the winner did not have the majority of lawful votes, the task of the Tribunal is to determine the actual results and add them up. The duty involves computing the results once there are allegations of inflation or/and wrong computation.Let us remember that the Tribunal’s finding is that the scores were not impugned by the evidence of the Appellant and he did not prove any of the allegations of electoral malpractices leveled against the 1st Respondent. The 2nd question is answered in the affirmative. In the circumstances, the 2nd issue is resolved against the Appellant.
ISSUE THREE
Whether the Tribunal was right in holding that the Appellants had not in the alternative, proved that the questioned election was void and invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act. The Appellants reiterated their argument put forth in paragraph 9 of their petition that the announcement, declaration or return of the 1st Respondent was arbitrary, incompetent, wrongful, undue,  invalid and contrary to law. Counsel argued that the entire exercise reeks of corruption of the highest order. Counsel argued that no collation of results were undertaken in the various wards and collation in only three wards were undertaken because no conclusive collation took place in respect of seven wards which form the majority of the  Constituency. This was enough to make the 2nd-176th Respondents annul the election.
Learned senior counsel for the 1st Respondent argued that the Tribunal made findings of fact in respect of all the allegations by the Appellants and the Tribunal found that they were not proved. Those that bordered on criminality were not proved beyond reasonable doubt. The Appellants did not also prove that the 1st Respondent personally committed or aided the commission of the alleged acts or authorized the commission of the acts. The Appellants failed to show how the acts affected the outcome of the election and that but for the acts they would have won the election. He cited KALGO v. KALGO (1999) 6 NWLR Pt. 608 Pg. 639 at 646; ADENIJI v. KOLAWOLO & ORS. (2006) 2 EPR Pg. 70 at 92; AJADI AJIBOLA v. AJIBOLA (2002) 16 NWLR Pt. 898 Pg. 91; ONWUKA KALU v. UZOR (2006) 8 NWLR Pt. 981 Pg. 66 at Pg. 87-88.
Learned counsel for the 2nd-176th Respondents advanced essentially the same line of argument to wit that the Appellants did not link the 1st Respondent with any of the allegations of corrupt practices and he cannot be penalized.
On my reading of the record, the evidence of INEC officials who conducted the election and gave evidence as witnesses astounded me especially with regard to how much they were harassed by party thugs especially those of the Appellants. Be that as it may, the Tribunal found that there were no proven allegations of electoral malpractices against the 1st Respondent. The view of the Supreme Court as expressed in BUHARI v. OBASANJO supra at pages 209 and 311 is that allegations of crime must be proved beyond reasonable doubt and it would be inappropriate for a court to infer that a particular candidate was responsible in the absence of fairly conclusive evidence.
There is no doubt that the Appellant was quite right in their argument that the 2nd-5th Respondents were hasty in announcing the result with only 3 out of 10 ward results in the constituency. It constituted in my view substantial non-compliance. However, the evidence before the Tribunal and the finding of the Tribunal regarding the actual total scores of both candidates show that in respect of the facts of this case, the non-compliance did not materially affect the results of the election as hastily declared by INEC. The person declared as winner on the basis of the hastily declared and  incomplete results is still the person found by the Tribunal to have won the highest number of votes. Thus, in my humble view no miscarriage of justice had occurred to convince the Tribunal to annul the election.
I am of the view having read the judgment of the Tribunal that they were correct in not annulling the election moreso as the Appellants did not prove that the non-compliance affected the results of the election.  The Tribunal collated all the scores available including those not used to declare the results by INEC and still found that the 1st Respondent won the highest votes. The law on this issue is clearly stated in BUHARI v. OBASANJO supra at pages 208 and 309. The Supreme Court held that an order for nullification of an election should not be made by a court without clear, positive, credible and over-whelming evidence led to the effect that the entire election was totally flawed and that the conduct was in breach of major provisions of Electoral Act. The Appellants did not show how the non-compliance affected the outcome of the election, particularly the scores credited to both parties.
I agree with the Respondents that this issue be resolved against the Appellants. In the circumstances, the appeal fails and it is hereby dismissed. No order as to costs.