OKOGERI CHUKWU LINUS & ANOR v. IKORO OGBONNA KINSLEY & ORS (2012)

OKOGERI CHUKWU LINUS & ANOR v. IKORO OGBONNA KINSLEY & ORS

(2012)LCN/5097(CA)

In The Court of Appeal of Nigeria

On Monday, the 16th day of January, 2012

CA/E/EPT/45/2011

RATIO

ELECTORAL PROCESSES: WHETHER AN ELECTION CAN BE INVALIDATED BY MERE REASON THAT IT WAS NOT CONDUCTED SUBSTANTIALLY IN ACCORDANCE WITH THE PROVISIONS OF THE ELECTORAL ACT.

Again, it would appear that the learned counsel for the Respondent have aptly cited Aregbesola v. Oyinlola (supra) at 676-677 paras F-D; where this court posited inter alia:- “It is manifest that an election by virtue of Section 146(1) now 139(1) of the Electoral Act, shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of this Act. It must be shown clearly by evidence that the non-compliance has affected the result of the election. Election and its victory is like soccer and goal scored. The petitioner must not only show substantial noncompliance but also the figures, that is, votes that the non-compliance attracted or omitted. The elementary evidential burden of the “the person asserting must prove has not been derogated from by section 146(1) of the Electoral Act. The petitioners must only assert but must satisfy the court that non-compliance has so affected the result to justify the nullification.” PER. IGNATIUS IGWE AGUBE, J.C.A

THE POSITION OF THE LAW ON EVIDENCE ELICITED FROM A PARTY OR HIS WITNESS UNDER CROSS- EXAMINATION

Finally on the effect of facts elicited under cross examination by an opponent against the testimonies of a rival’s witness, the recent case of Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (pt1181) 338 at 351 paras F-H and 353-354; ably relied upon by the learned counsel for the 1st Respondent says it all as the Supreme Court succinctly stated the position of the law thus: “Evidence elicited from a party or his witness under cross- examination, which goes to support the case of the party cross examining, constitutes evidence in support of the case or defence of the party. If at the end of the day, the party cross -examining decides not to call any witness, he can rely on the evidence elicited from the cross-examination in establishing his case or defence. In such e case, it cannot be said that the party called no evidence in support of his case or defence. However, it can be said that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination, which are in support of his case or defence, constitute his evidence in the case.” PER. IGNATIUS IGWE AGUBE, J.C.A

AUTHORITIES ON THE PRINCIPLE OF NATURAL JUSTICE/FAIR HEARING AND ITS TWIN PILLARS

The cases of Saleh v. Monguno (supra); Udoakagha v. Paico Ltd (supra); Cato v. C.B.N. (supra) ; Military Governor of Imo State v. Nwama; R. V. Vice Chancellor of University of Cambridge, Olatubosun v. NISER and the hordes of treaties and Human Right charters including Section 36(1) of the 1999 Constitution (as amended) are all authorities on the principle of Natural Justice/fair hearing and its twin pillars of Audi Alteram partem and Nemo Judex in Causa sua which doctrines are time honoured in our adjudicatory system. However, where a party did not take advantage of those principles at the earliest opportunity but acquiesced in the adoption of a purported wrong procedure, he cannot turn round to cry wolf and invoke the principles to his aid and disadvantage of his opponent. This point was stressed by the by the erudite/emeritus judicial icon Tobi, JSC in the celebrated case of Inakoju v. Adeleke (2007) 4 NWLR (pt.7025) 423 at 627-622 paras G-A; when he stated:- “The duty of the court of trial and appellate is to create the atmosphere or environment for fair hearing of a case but it is not the duty of court to make sure that a party takes advantage of the atmosphere or environment by involving himself in fair hearing, a party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn round to accuse the court denying him fair hearing. This is not fair to the court, and counsel must not instigate his client to accuse the court of denying him fair hearing.” See Orugbo v. Una (2002) 16 NWLR (pt.792) 175 and Ladoja’s case 2007 1 CCLR 240 at 361-362 paras 25-26. PER. IGNATIUS IGWE AGUBE, J.C.A

THE CONCEPT OF WAIVER

As was rightly submitted by the learned counsel for the 1st respondent, by failing and or neglecting to demand to be served assuming actually that they were not duly served, and also neglecting to raise the issue of filing the 3rd-5th Respondent out of time, the learned counsel had waived their right to complain here on appeal. In Ariori & Ors. v. Elemo & Ors. Obaseki JSC; following the English case of Vyvyan v. Vyvyan 30 Beav.65 per Sir John Romily. M.R. at page 74 (54 E.R. 817) enumerated the concept as follows; “the concept of waiver must be one that presupposes that the person who is to enjoy a benefit, but either neglects to exercise the right to the benefit or benefits, but either neglects to exercise his right to the benefit or where he as a choice of two, he decides to take one but not both.”
There is little doubt that, a man who is not under any legal disability should be the best judge of his own interest. If therefore having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights; or that he has suffered by his not having exercised his rights. He is, to put in another way, estopped from raising the issues. Anori v. Elemo [1983) 1 SC 13 at 26-27. See further United Calabar Co. v. Elder Dempster Lines Ltd. (1972) 1 ALL NLR (pt2) 244 -253 and A.G, Bendel State v. V.A.G. Federation & Ors. (1981) 10 SC 1 at 166-167. PER. IGNATIUS IGWE AGUBE, J.C.A

THE POSITION OF THE LAW WHERE AN ELECTION PETITION IS FOUNDED ON ALLEGATIONS OF IRREGULARITIES AND NON-COMPLIANCE WITH THE ELECTORAL LAWS

It is pertinent to note, and the law appears settled on the authorities of Buhari v. Obasanjo (2005) 13 NWLR (pt.941) page 1at 223 and Ezeanuma v. Onyema (2011) 13 NWLR (pt.1263) 36 at 73 ably cited by the learned counsel for the 1st Respondent that apart from the burden and onus cast on the Petitioners as earlier stated, where an election petition is founded on allegations of irregularities and non-compliance with the Electoral laws as in our instant case, the onus lay on the petitioners not only to first establish the irregularities or non-compliance through credible, cogent and compelling evidence; but they ought to have gone further to demonstrate also that the irregularities and non-compliance were substantial and did or could have affected the result of the election substantially to warrant its cancellation. See also Nwobodo v. Onoh (1984) 7 SCNLR 1, Ajadi v. Ajibola (2004) 16 NWLR (pt 900); and Awolowo v. Shagari (1984) SCNLR 2478 at 306. Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 95. PER. IGNATIUS IGWE AGUBE, J.C.A

ON THE DUTY OF TRIAL JUDGES IN CIVIL MATTERS

DUTY OF THE COURT: THE FUNCTION OF ASSESSMENT OF CREDIBILITY OF WITNESS

The position taken by the eminent and emeritus judicial titan has been re-echoed recently, by their Lordships of the apex court in Omotayo v. C.S.A. (2010) 16 NWLR (pt.1218) 7 particularly pages at 23-24, paras C-G, inter alia: “The function of assessment of credibility of witness is essential for the trial court and not that of the appellate court. Therefore, the attitude of an appellate court is to be slow to interfere with such decision of a trial court This is because the duty of appraising evidence given in a court is pre-eminently that of the trial Judge who saw and heard the witnesses and it is that court that has a right to ascribe values. A Court of Appeal may not interfere with the judgment simply on the ground that it would have come to a different conclusion on the facts as long as the judgment of the trial court is supported by evidence. When a trial court has adequately performed its primary role of evaluating and ascribing probative values to the evidence before it, the findings of fact made by it are entitled to respect by an Appellate court. In other words, where the trial court clearly evaluated the evidence of the parties and justifiably appraised the facts before it as appears in the records, it is not the business of an appellate court to substitute its own views of the facts for those of the trial court”. PER. IGNATIUS IGWE AGUBE, J.C.A

JUSTICE

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ABUBAKAR ALKALI ABBA Justice of The Court of Appeal of Nigeria

Between

1. OKOGERI CHUKWU LINUS
2. ALL NIGERIA PEOPLES PARTY (ANPP)Appellant(s)

AND

1. IKORO OGBONNA KINSLEY
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE RESIDENT ELECTORAL COMMISSIONER EBONYI STATE
5. THE RETURNING OFFICER, AFIKPO NORTH CONSTITUENCY.Respondent(s)

IGNATIUS IGWE AGUBE, J.C.A (Delivering the Leading Judgment): Sequel to the conduct of the Election into the membership of the Ebonyi State House of Assembly for the Afikpo North West Constituency by the 3rd Respondent on the 26th day of April, 2011 and the subsequent declaration of the 1st Respondent (a candidate of the 2nd Respondent), as the winner with 12200 votes by the 3rd, 4th, and 5th Respondents; the 1st Appellant who was sponsored by and scored 1662 votes at that Election, the 2nd Appellant proceeded to the Governorship and Legislative Houses Election Tribunal sitting at Abakaliki, Ebonyi State Coram: Hon. Justices H.A Olusiyi (Chairman), P.I. Imoedemhe and B.M. Tukur (Members) and filed petition No. EB/EPT/SHA/10/2011, challenging the return and declaration of the 1st Respondent as the winner of that election.
The petition was predicated primarily on the invalidity of the election by reason of corrupt practices and non-compliance with the provisions of the Electoral Act and the Manual for Electoral Officials, 2011 in most of the polling units/wards in the Afikpo North West Constituency five wards of Ezeke/Amasiri, Poperi/Amasiri, Ibii/Ozizza, Akpoha ward ‘A’ (Amata) and Akpoha ward B (Amogu), were specifically fingered as those where the alleged corrupt practices and non-compliance in paragraphs 11 to 24 of pages 4 to 5 of the petition.
Pleadings were duly filed and exchanged by parties and at the hearing the Petitioner called a total of 11(eleven) witnesses while the 1st and 3rd to 5th Respondents called a total of 13 (thirteen) and 5 (five) witnesses respectively. The 2nd Respondent did not call any witness. At the close of the cases of the parties, learned counsel on their behalf exchanged their respective Final Addresses except the 2nd Respondent who filed none.
On the 30th day of September, 2011 when the case resumed for adoption of Final Addresses the learned counsel for the Petitioners Mr. Okporie complained that the 3rd to 5th Respondents Address was not served on the Petitioners, hence the Petitioners could not proffer any reaction thereto. (Paragraph 5, lines 20 to 23 of page 265 of the Records) refers. Notwithstanding, the above scenario; learned counsel on behalf of the parties adopted their respective final Addresses except the 2nd Respondent on whose behalf nothing was filed.
In a well considered and reserved judgment delivered on Monday the 24th day of October, 2011 the Honourable Tribunal held inter alia at page 299 of the Records (page 32 of the judgment) thus:-
“following from the totality of the foregoing, we hold in answer to the only question posed for determination, that the Petitioners have failed to plead and prove the irregularities and non-compliance with the Electoral Act, 2010 (as amended) as required by law to entitle them to the relief sought. The relief sought is accordingly refused and the petition is dismissed in its entirety. The election and return of the 1st Respondent in the said election is affirmed by us.”
Yet not satisfied by the decisions of the learned judges of the trial Tribunal, the Appellants have appealed to this Honourable Court by Notice of Appeal with 9(nine) Grounds dated 6th day of November, 2011 but filed on the 11th of November, 2011.
Upon transmission of the Records of Appeal to this Court parties filed and exchanged their respective Briefs in line with our Rules. In the Appellants’ Brief dated 25th November, 2011 and filed on the 28th November, 2011, the Appellants identified six issues as calling foe determination in the Appeal. See page 4 paragraph 2.0 to 2.4 and page 5 paragraphs 2.5 to 2.6.
The 1st Respondent on his part gave Notice of Preliminary Objection dated and filed on the 13th December, 2011 challenging the competence of Grounds 1,2,6 and 7 of the Appellants’ Notice of Appeal as according to them they are grounds of fact or at best grounds of mixed law and facts and the Appellants failed and or neglected to seek leave for and obtained from the lower Tribunal or this Court before filing same in contravention of Section 242 (2) of the 1999 Constitution (as amended) and thus are liable to be struck out.
Apart from the Notice of Preliminary Objection the learned counsel for the 1st Respondent, Mazi M.N. Igbo, filed the 1st Respondent’s Brief dated 13th December, 2011 same date. At page 2 paragraph 3.0 to 3.3 and page 3 paragraph 3.4 thereof, the learned counsel formulated three issues as falling for determination in the Appeal. He articulated the arguments on the Notice of Preliminary Objection at page 13 paragraphs 6.12 to 6.13 and page 14 to 15 paragraphs 6.16 to 6.17 of the Brief of Argument to urge that the offensive Grounds 1, 2, 6 and 7 as contained in the Appellants’ Notice of Appeal be struck out for want of competence.
It would also be recalled that in the Brief settled by Matthew Ugwuocha Esq. on behalf of the 3rd to 5th Respondents, three issues were distilled for determination and in response to the Preliminary Objection of the 1st Respondent; the Appellants filed their Reply Brief on the 18th December, 2011 which Brief is dated the 16th of December, 2011.
When the Appeal came up for hearing on Wednesday, the 21st day of December, 2011, learned counsel on behalf of the parties adopted their respective Briefs. Whereas the Appellant called on us to allow the Appeal and set aside the judgment of the Tribunal, the Respondents urged us to dismiss the appeal and affirm the said decision.
Now, after a careful perusal of the Briefs of the learned counsel for the respective parties, the submissions therein together with the judgment of the learned judges of the lower Tribunal against the background of the Record of proceedings, I shall proceed to determine the preliminary objection outrightly.
The summary of the argument of the learned counsel for the 1st Respondent is that the Appellants ought to have sought the leave of either the Tribunal below or this Honourable Court before filing Grounds 1,2,6 and 7 of their Grounds of Appeal and that the Grounds are of facts alone or at the very best, of mixed law and facts. He has cited Section 242 (1) of the 1999 Constitution (as amended), Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (pt 113) 278 at 292-293 (SC); Eshinlawo v. Oke (2008) 16 NWLR (pt.1113) 357 at 388-395 and Ugo v. Ugo (2008) 5 NWLR (pt 1079) 1 at 14 on the nature of the Grounds of law and facts nay the distinguishing factors of these grounds; to urge that since the Grounds in contention in this appeal question the evaluation of evidence by the learned trial judges of the Tribunal, the mere mention “that the Court erred in law” would not convert those Grounds to those of law.
Section 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), no doubt, makes it explicitly clear and subject to the provisions of section 241 of the Constitution, that appeals shall be from decisions of the Federal High Court or High Court to the Court of Appeal with the leave of the high Courts, or the Court of Appeal. See also Section 14 of the Court of Appeal Act, 2004, cap C.36.
However, as ably submitted by the learned counsel for the Appellant Okporie Esq. election petitions proceedings and appeals from their Tribunals are sui generis and are not subject to the strict adherence to the restrictive …of regular civil proceedings. The law makers realised this fact hence their entrenchment in section 246(1) of the same Constitution that Appeals shall lie as of right from:
“(b). decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether (i) Any person has been validly elected as a member of the National Assembly or of a House of Assembly of a state under the Constitution.”
The Appellants in this case are questioning the return of the 1st respondent as the validly elected member of the Ebonyi State House of Assembly representing Afikpo North West Constituency and by virtue of Section 246(i)(b) of the Constitution above reproduce is guaranteed as of right to appeal to this Court against the decision of the Governorship and Legislative House Election Tribunal sitting at Abakaliki delivered on the 24th of October, 2011. See Odibendi v. Ilodibo (2009) 3 NWLR (pt.1128) 269 at 280 paras B-D. and Enimikemi v. Sylva (2008) 8 NWLR (pt.1088) 207 at 221 and Section 318 of the constitution on the definition of “decision”.
I agree therefore with the submissions of the learned counsel to the Appellants and on the authorities of Odon v. Barigha-Amange (No.2) (2010) 12 NWLR (pt. 1207) 13 at 42-49 paras. H-C. Aburime v. Abumere (2002) 10 NWLR (pt776) 530; and Ehinlawo v. Oke (supra) at 395 para. D-F that the grounds pilloried by the 1st Respondent are valid and effective within the meaning of the provisions of the Constitution as above cited, more so, when the learned counsel for the 1st Appellant has not demonstrated how the Grounds are based on facts or mixed law and facts.
In any case, even though Grounds 1 and 2 relate to mixed law and facts, Grounds 6 and 7 are on pure issues of law in that the complain is on the learned trial judges of the Tribunal’s failure to follow the legal principle of stare decisis thereby misdirecting themselves and acting on the Address of the 3rd and 5th Respondents which were not served on the Appellants even when the issue of non-service was brought to their Lordships’ attention.
Finally, and to further buttress the fact that the learned counsel was in firma terra when he cited Ojielewu v. Yar’Adua (2009) 12 NWLR (pt1154) at 122 para. H (SC) and Omidiran v. Etteh (2011) 2 NWLR (pt.1232) 471 at 489; even if the questioned grounds are incompetent (which is not the case here), the success of a single Ground of Appeal which strikes at the foundation of the case can sustain the success of the entire Appeal. In the case at hand, this Appeal can still be allowed if Ground 3, 4, 8 and 9 succeed. Finally, the 1st Respondent has not complained that the framing of the questioned Grounds as they are have mislead them as to the information or the case they are to meet. In the circumstances, I am of the candid view that the preliminary objection was raised for the sake of it as the common trend as witnesses particularly in most of the Appeals before us is to raise preliminary objections with such frivolity and recklessness to the chagrin of the opponent and even the court. The objection is therefore overruled and accordingly dismissed with the ignominy it deserves.

On the substantive issues which call for determination, I am minded to adopt the six issues formulated by the Appellants since the respective three issues distilled by the 1st – 5th Respondents are subsumed within those six issues.
On the 21st day of December, 2011, we dismissed this appeal and reserved the advancement of the reason for the judgment for another date. I shall herein give these reasons hereunder.
It would be recalled that I adopted the six issues raised by the Appellants as calling for determination in this appeal.
On the first issue which is whether the Tribunal was right in refusing to consider the legal effects of section 27 (2)(c) of the Electoral Act, (as amended) relating to collation and declaration of results of the Election outside the constituency and whether from the circumstances of the case, such refusal has occasioned a miscarriage of Justice; he submitted that the collation of the results outside the constituency is an act of non-compliance which goes to the root of the election by Section 27 (2)(c) of the Electoral Act and has occasioned non-compliance and miscarriage of Justice.
According to him issues relating to the result of an election be it non announcement of the result or announcement outside the stipulated venue or non-signing and stamping of the result sheets has been held to be fractions of the Electoral Act which if proved, will lead to the nullification of the results in issues; such non-compliance being fundamental.
Referring to the answer to cross examination of the RW15, Dr. Achike Beatrice A. Code TIP, to the cross examination of S.A. Okeporie Esq of counsel to the Appellants at pages 262, 191-193 of the Records and counsel’s address; the cases of Agagu v. Mimiko (2007) 7 NWLR (pt.1140) 343 at 409-410 Akusobi v. Obinechi (2004) 2 NWLR (pt857) 355 at 380; Eze v. Okobagu (2010) 3 NWLR (pt.1188) 783 at 279 para. D-F; it was submitted the issue of collation need not be pleaded and the fact that the evidence was elicited under cross examination would not have warranted the Tribunal from pronouncing on the issue.
Citing INEC v. Oshiomole (2009) 4 NWLR (pt. 1132) 675; on the definition of non-compliance Arab Bank Ltd. v. Ross (1952) Q.B, 216, 229; he argued that a party who makes non-compliance a ground of his petition is like a party who has pleaded more than needed.
He also relied on Omoboriowo v. Ajasin (1984) 15 NSCC 81 at 707. Ezemba v. Ibeneme & Anor (2004) 14 NWLR (pt.894) 617 at 659.
Learned counsel also maintained that Section 27 (2)(c) of the Electoral Act is a statutory provision which must be complied with and that on the authorities of Afribank Nig. Plc v. Akwara (2006) ALL FWLR (pt204) 401 at 405; Onueka v. Ononuju (2009) NSCQ 33; Ratio 6 where a statute provides for a procedure to be allowed, it cannot be otherwise as a procedure contrary to the provisions of the law is a nullity and as such the result gotten through such procedure is likely to be invalidated.
Learned counsel also contended that the testimony of the RW15 who was the Returning Officer and party to the petition amounts to an admission of the truth of their allegation, against the Respondents interest. Eigbe v, NUT (2005) 5 NWLR (pt 1081) 606. Ipinkuye II v. Olukotun (1996) 6 NWLR (pt.453) at 148 (SC) and Onisadu v. Elewugu (2006) 13 NWLR (1998) 517 (SC) were all cited on the effect of the evidence of a witness supporting the case of an opponent.
Learned counsel then veered into the rule of interpretation of statue and the duty of the court to give effect to straight forward literal meanings in documents, statutes Ugwu v. Ararume (2007) 12 NWLR (pt.1048) 367/498 refers.
Finally on this issue, the learned counsel for the Appellants submitted that where elections are most conducted as stipulated by law, a party affected has the right to complain as they have done in the court.

On Issue Number 2 which questions whether the tribunal properly, carefully and dispassionately evaluated the evidence of the witnesses and arrived at the findings that the entire testimony/evidence of the witnesses for the Appellants is unreliable on ground of inconsistency, clear and manifest material contradictions and that the petitioners/Appellants failed to prove their petition. Learned counsel stated the gravamen of their complaint on the issue which is that the Tribunal failed to properly evaluate the evidence of their witnesses without putting them in the imaginary scale. They were also accused of mixing up their testimonies in the course of attempted evaluation and thereby arrived at very logical and damaging conclusions. On the essence of the complaint he cited the cases of Aregbesola v. Oyinlola (2011) 1 WRN 133; Daramola & Ors. v. A.G Ondo State (2000) FWLR (pt.6) 997, 1015; 1777 at 1791.
Learned counsel then referred us to findings of the court at pages 290- 291 of the Records, the evidence of the PW1 at pages 13 and 14 and 233-234 of the Record of proceedings and the cases of INEC v. Oshiomhole (supra) pages 661-662 paras E-A; Awuse v. Odili (2005) 16 NWLR (pt.952) 416; Ebre v. State (2001) 12 NWLR (pt.728) 617; on the need for the tribunal to have stated what portion of the testimony of the witness contradicted or was inconsistent with the other and accept the part that is credible, he submitted all the answers to the cross examination of the PW1 supported the Appellants’ case.
References were again made to page 287 on the finding of the tribunal on the evidence of the PW6 as contained in pages 15 and 16 as compared with paragraph 20 of the petition at page 5, and drew our attention to the fact that the allegations in the petition are grouped into wards particularly that of Akpoha ward A (Amata) as pleaded in para s. 17 to 20 of the petition and that PW6 testified in respect of Amaozara polling unit 009 of the said ward. Citing Omman v. Ekpe (2000) 1 NWLR (pt.641) 365 at 372 paras. G-H; on the effect of not subjecting a witness to cross examination.
On another score the learned counsel submitted that the pleadings of a party should be examined as a whole and not each paragraph in isolation. He relied on the cases of Buhari v. Obasanjo (2005) 13 NWLR (pt.941) 1 at 196- 197, 261, Lion of Africa Ins. Co. v. Fisayo (1956) 4 NWLR (pt.37) 674; A.G. Anambra State v. Onuselogu Ent. Ltd. (1987) 4 NWLR (pt.66) 547; Titiloye v. Olupo (1991) 7 NWLR (pt.205) 579; Ugochukwu v. Co-op. Commerce Bank Ltd. (1996) 6 NWLR (pt.456) 524 and Pan Asian African Co. Ltd. v. NICON Ltd. (1982) 9 SC 1 for the said submission and took the view after highlighting certain findings of the PW11, PW5, PW7 , PW4, PW3 and in particular pages 293, 294, pages 30 and 235, 21-22 and 235; page 295 of the Records and submitted that the findings of the Tribunal in respect of the evidence of the witnesses at the pages mentioned were either perverse or that the testimonies sufficiently proved their case.
He then relied on the cases of Sadau & Anor. v. The State where the Supreme Court relied on Kuruma v. The Queen at 203 (Privy Council) on the test to be applied in considering whether evidence is admissible. Further reliance was placed on the authorities of Torti v. Wepabi (1984) 1 SCNLR 214 at 256-337 and 239-240 per Eso and Aniagolu JJSC. Igbinivia v. The State (1981) 2 SC 5 at 15-16 per Obaseki JSC to submit that relevant evidence in a case cannot be excluded merely by the way it was obtained.
It was his further submission that the Tribunal did not advert its mind to the purpose of frontloading procedure of witnesses’ statements as provided in the 1st Schedule to the Electoral Act that the Statement once adopted becomes the witnesses evidence-in-chief and the Court is bound to evaluate same instead of treating same as mere allegation requiring further proof.
He then urged us to resolve the issue in the Appellants’ favour.

ISSUE NUMBER 3:
Whether the failure of the 2nd Respondent to call evidence in support of most part of their pleadings amounted to abandonment of their pleadings and consequently an admission of the allegation in the petition against the said Respondents.
On this Issue, it was submitted by the learned counsel for the Appellants that a party who fails to call evidence in support of his pleadings is deemed to have abandoned same and the plaintiffs case stands unchallenged.
Furthermore, he added, mere cross examination of the witnesses of the Appellants cannot amount to challenge of the appellants’ case and by electing not to call evidence the 2nd-5th Respondents had abandoned their pleadings with the resultant effect that they shall be deemed to have accepted the case of the Appellants’ allegations of irregularities and substantial non compliance. For the above submissions he relied on the authority of Hamika Sawmill Nig. Ltd. v. Mary (1990) 5 SCNJ 186 at 195; Newbreed Org. Ltd. v. Erheamosele (2006) 5 NWLR (pt. 974) 499 at 527 and FCDA v. Nanbi (1990) 3 NWLR (pt.139) 270 at 281.
Learned counsel maintained that all the allegations in the petition were either made against the 3rd – 5th Respondents or to the members or agents of the PDP (2nd Respond) presupposing the elections were not properly conducted in accordance with the provisions of the Electoral Act. According to him they had evidence in proof of the allegations thereby shifting the onus of proof to INEC and PDP which they failed to discharge and thus it was obvious on the authorities of Ukpo v. Imoke (2009) 7 NWLR (pt.1121) 90 at 175 and Amgbare v. Sylva (2009) 1 NWLR (pt. 112) 1 that the Appellants were entitled to the nullification of the Election.
Accordingly, learned counsel contended in this score, that the failure of the Tribunal to make pronouncement on the issue rendered their decision on the petition perverse. Citing again Dingyan & Anor. v Wamako (supra) at page 433; it was further contended that contrary to the findings of the Tribunal, the cross examination of the Appellants by the 2nd and 3rd respondents did not effectively challenge their evidence- in -chief as such we were urged to strike out the Reply of the 2nd Respondent for failure to testify and that of the 3rd to 5th for failure to testify in support of all their pleadings. In further support of their position learned counsel relied on the cases of Alao v. Akano (2005) 11 NWLR (pt.935) at 180; George v. Dominion Flour Mills Ltd. (1963) 1 ALL NLR 71 at 77 per Bairamiran F.J., Oduka v. Rasunmu (1967) 1 ALL NLR 293 at 299; Orizu v. Anyaegbunam (1978) 5 SC 21 at 33 and Total v. Nwako (1978) SC 1 at 17; on the effect of pleadings not supported with evidence and the object of pleadings reiterating that abandoning of the PDP and INEC Replies amounted to their pleading a no contest.
Relying on the decision of Agagu v. Mimiko (2009) 7 NWLR (pt.1140) 387 paras. C-D on the petitioners proving their case on minimal evidence where the Respondents opted or chose not to produce evidence on the issue calling for determination, he urged us to resolve the issue in favour of the Appellants.

ISSUE NUMBER 4:
WHETHER THE TRIBUNAL WAS RIGHT IN RELYING AND ACTING ON THE ADDRESSES OF THE 3RD TO 5TH RESPONDENTS WHICH WAS NOT SERVED TO THE APPELTANTS AND WHICH WAS FILED OUTSIDE THE STATUTORY PERIOD ALLOWED AND WITHOUT LEAVE AND WHETHER FROM THE CIRCUMSTANCES OF THE CASE SUCH RELIANCE OCCASIONED A MISCARRIAGE OF JUSTICE.
Learned counsel bifurcated the arguments on the issue into two sub issues, on the first limb whether the Final Written Address of the 3rd – 5th Respondents filed outside the statutory period without leave of the tribunal was valid and proper, before the Tribunal, the learned counsel for the Appellants pointed out that the 3rd to 5th Respondents were to file their Written Address 10 days after the close of their case. The 3rd to 5th Respondents were said to have closed their case on the 7th of September, 2011; (page 263 of the Records refers) and were supposed to file the Address on or before 17th day of September, 2011; but it was not until the 23rd September, 2011 that they filed their said Address.
It was therefore submitted that the Respondents filed their Address 6 days outside the statutory period and that although paragraph 45 of the 1st Schedule to the Electoral Act provides for enlargement of time for doing some acts, the 3rd to 5th Respondents refused to take advantage of the provision thereby rendering their Written Address invalid. There being no valid Written Address from the 3rd to 5th Respondents, the tribunal ought to rely on it.
On the second limb, the learned counsel for the appellants posited that on the 30th September, 2011 when the parties were to adopt their written Address of the 3rd-5th Respondents and that they did not react to it. (page 265 refers); but the Tribunal went on to act on the said address (page 270, 280,283 and 296 of the records refers) he then submitted that the denial of the Appellants the opportunity to react to the written address of the Respondents amounts to infringement of their constitutional right to fair hearing. For the connotation of fair hearing he relied on the cases of Saleh v. Mongumo (2003) 1 NWLR (pt.801) 221; Udo Akagha v. Paico Ltd. (1993) 4 NWLR (pt.228) 434; Katay v. CBN (1989) 1 NWLR (pt.981) 419 and Military Gov. Imo State v. Nwana (1997) 2 NWLR (pt 490) 675.
On the right to be heard he further cited the case of R. v. Vice Chancellor of the University of Cambrige (1923) 1 str. P. 557 at 567 and Olatubosun v. NISER Council (1988) 3 NWLR (pt80) 25; to submit that the issue of fair hearing had since gained universal ascendancy since the Garden of Eden; through the days of Magna Carta, 210, to the Universal declaration of Human Rights 1948. Article 10 of the Universal Declaration of Human Rights (United Nation Charter) 1941. Article 7 of the African Charter on human and Peoples Rights (Ratification and Enforcement Act) cap 11; laws of the Federation of Nigeria, 1990 and Section 36(1) of the 1999 Constitution (as Amended).
Also, learned counsel relied further on the cases of Okonkwo v. Okonkwo (1998) 10 NWLR (pt571) 554 at 570. Nwankwo v. Onuma (1990) 3 NWLR (pt.136) 22 at 31 and Egolum v. Obasanjo (1992) 7 NWLR (pt611) 355 at 397; Alobi v. Lawal (2004) 2 NWLR (pt. 856) 134 at 147 and Uka LGA v. IMBA (2007) 12 NWLR (pt 1049) 676 at 702-703 to finally submit on this issue that the pith and substance of the issue is that the entire proceedings including the Judgment of the lower Tribunal delivered on 24/10/2011 was fatally flawed and accordingly a nullity.
He therefore urged us again to resolve the issue in favour of the Appellants.

ISSUE NUMBER 5:
WHETHER THE JUDGMENT IS NOT AGAINST THE WEIGHT OF EVIDENCE AND WHETHER FROM THE EVIDENCE AVAILABLE, THE APPELLANTS WERE ABLE TO PROVE THEIR CASE TO ENTITLE THEM TO THE RELIEFS SOUGHT?
Learned counsel for the Appellant had referred us to the findings of the Tribunal at page 296 wherein it dismissed the Appellants petition having regard to Section 139(1) of the Electoral Act. He stated the conditions under which the tribunal would fulfil in order for the Election to benefit from the provision of section 139(1) of the Electoral Act.
Learned counsel went on to analyse the lexical structure of the provision submitting that the above section does not require the Petitioner to plead substantial non-compliance as having affected the election, he further went on to cite Ugwu v. Ararume (2007) 12 NWLR (pt1048) 367/498 on the construction of words in the interpretation of statutes submitting that it is only where a petitioner pleads that he won the majority of votes that he will be expected to plead and show the number of votes affected by irregularities in order for the tribunal to be able to determine valid votes from invalid votes and not otherwise.
He went on to quote portions of wrong decisions of the Tribunal submitting that a careful consideration of evidence of the Appellants shows that they have established their case with the required standard of the law once they tendered the result forms.
He maintained that the mere fact the petitioners included the scores of the election as required by law does not mean that they have consented to the fact that all the Respondents admitted the fact. According to him the findings of the Tribunal in this respect is misplaced, for it is the result forms that have the benefit of presumption of regularity as provided in Section 108(1) of the Evidence Act, 2011(as amended) and not bare scores. Learned counsel on the interpretation of section 150(1) of the Evidence Act Cap. E14 2004 on the presumption of regularity by this Court referred us to Ukpo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 149, paras. D-E 150, paras. H-A, 163 paras G; and submitted that the Respondents especially 3rd-5th Respondents ought to have tendered the results (Forms EC8A(i) from the polling booths.
The failure to tender the Forms EC8A(i), he insisted, entitled the tribunal to draw the inference that there was no election and impliedly admitted that election was not held. Agagu v. Mimoko (2009) 7 NWLR (pt. 1140) 343 at 432. Paras C-F referred.
Learned counsel contended that once they (Appellants) were able to establish doubt of the effect non-compliance had on the election the burden shifted to the 3rd-5th Respondents in which the Respondents in this case failed to discharge the burden to prove the contrary.
Accordingly, and placing reliance on Swen v. Dzurigwe (1966) 1 SCNLR 111 at 119; the consequence of failure to discharge the burden is the nullification of the Election.
Alluding back to the section 139(1) of the Electoral Act, he took the view that the section creates two instances where non-compliance would lead to nullification of results of an election viz where non-compliance was bound to impact on the result and the effect non-compliance would have on the result of the election. Ajadi v. Ajibola (2004) 6 NWLR (pt898) and Basheer v. Samre (1992) 4 NWLR (pt 236) 509 per Tobi; (as he then was).
He went on to list some of the acts of non-compliance they complained of as accreditation of voters, collation and declaration of results outside the constituency, non-provision of voters registers etc which constitute the root of the election and where it is not done or done poorly, it would impact negatively on the outcome of the election. Section 49(1) & (2) of the Electoral Act (as amended) and the cases of Haruna v. Modibo (2004) 6 NWLR (pt.900) 487; Terab v. Lawan (1992) 3 NWLR (pt.231) 569 at 587 and Nweke v. Ejims (1999) 11 NWLR (pt 625) 39 at 53; we relied upon to buttress the above submission.
Finally on this issue, learned counsel cited Buhari v. INEC (2008) 19 NWLR (pt.1120) 246 on burden of proof under the Evidence Act which according to him is never static but (sic) vacillates between the parties; and urged us again to resolve the issue in favour of the Appellants.

ISSUE NUMBER 6:
WHETHER THE TRIBUNAL WAS RIGHT IN REFUSING TO CONSIDER AND PRONOUNCE ON THE COMPETENCE OR OTHERWISE OF THE 1ST RESPONDENT AND WHETHER SUCH REFUSAL OCCASIONED ANY MISCARRIAGE OF JUSTICE?
On this last issue, the learned counsel for the appellants draw our attention to the fact that in their written address to the Tribunal they had raised the issue of the 1st Respondent’s failure to comply with paragraph 12(3) of the 1st Schedule to the Electoral Act 2010 (as amended) but the learned Tribunal judges refused to pronounce on same in their judgment. Accordingly learned counsel had the learned judges considered the Reply they would have discovered that it was not proper and that the failure has occasioned a miscarriage of Justice. On the procedure laid down by the said paragraph he referred us to the decisions in Ezekwe v. Onwuamaegbu (1988) 3 NWLR (pt.547) 217 and Onyemaizu v. Onako (2006) 6 NWLR (pt659) 25 at 45; submitting that the 1st Respondent filed their Reply without accompanying it with the copies of documentary evidence which is a condition precedent to the failure to fulfil which robbed the Tribunal of jurisdiction to consider the case of the 1st Respondent.
The case of the 1st Respondent Afolagbe v. Awuni (1997) 9 NWLR (pt522) 536 at 597-592; Gambari v. Gambari (1990) 5 NWLR (pt.152) and Obaba v. Military Governor of Kwara State (1994) 4 NWLR (pt336) 26 all refer. Citing again Afribank Nig. Plc. V. Akwara (supra) on the need to abide by statutory provisions and procedure to be followed and not otherwise, he urged us to resolve the issue in the Appellants’ favour and allow the appeal.

RESOLUTION OF ISSUES.
In the resolution of the Issues in this appeal, I intend to consider Issues Numbers 1, 3, 4 and 6 together and Issues Number 2 and 5 together.
ISSUES NUMBERS 1, 3, 4 AND 6 TOGETHER.
Issue Number 1: Whether refusal of the Tribunal to pronounce on Section 27 (2)(c) of the Electoral Act, 2010 (as amended) has occasioned a miscarriage of Justice. To determine this issue it is necessary to have recourse to the provisions of section 27 (2)(c) of the Electoral Act, 2010 (as amended) purported refusal of the Court to pronounce upon is the subject of the Appellants’ grouse therein. That section which deals with Announcement of Election Results by its marginal note provides thus:
“27(2) the Returning Officer shall announce the result and declare the winner of the election at-
(c) State Constituency Collation Centre in the case of State Assembly” I have searched through the entire gamut of section 156 which is the interpretation section of the Electoral Act, 2010 (as amended) but cannot find the definition of Constituency Collation Centre. However, the learned counsel for the 1st Respondent has brilliantly argued, and I agree completely with him, that such a collation centre should be one designated by the 3rd Respondent/INEC which is the body statutorily charged with the conduct of elections. He has further submitted that none of the witnesses for the petitioners or under cross examination from the Rw15/Constituency Returning Officer has testified to the effect that any other place outside that testified as the RW15 was designated as the collation centre for the House of Assembly election in Afikpo North West Constituency.
It has also been submitted by learned counsel that assuming without conceding that there was infraction of section 27 (2)(c) of the Electoral Act as erroneously contended by the petitioners, the petitioners have totally failed to show how the infraction affected the outcome of the election. For this submission he placed reliance on the cases of Aregbesola v. Oyinlola (supra) at 616; Eze v. Ekweremuo (2010) 17 NWLR (pt.1221 53 at page 73 paras. B-C and Agagu v. Mimiko (2009) 7 NWLR (pt.1140) 409-470.
Earlier on the learned counsel for the 1st Respondent had referred us to page 262 of the Records which contain the testimony of the RW15 on this vexed issue of collation outside the Constituency. See page 10 para. 6-7 to page 11 para.6-9 of the 1st Respondent’s Brief.
On the part of the 3rd Respondent, it was submitted by learned counsel on its behalf that where the petitioner failed to lead evidence credible enough to prove its case, the Tribunal could not have gone on a voyage of speculation in order to substantiate the claims of the petitioners for them. Fayemi v. Oni (2010) 7 NWLR (pt1222) 326; was cited to support the submission further that by the evidence before the Tribunal, no official of the 3rd Respondent who conducted the election was found wanting or acted contrary to the law in the course of carrying out their duty as polls officials.
He maintained that all the polls Officials including the act of announcing the result is valid in the light of section 139(1) of the Act as the RW15 who testified on behalf of the 3rd Respondent was not shaken during cross examination as she was firm that the election was conducted in substantial conformity with the Electoral Act, 2010 (as amended). He then posited that the Act does not envisage absolute compliance.
A look at page 262 of the Records would reveal that under cross examination by Okporie Esq., counsel for the Appellants she stated that:
“I arrived in INEC Office on the day of the election between 7.00am and 8.00am collation of results was done at the INEC office at Afikpo North Local Government headquarters, Afikpo. I was a returning officer.”
Learned counsel for the Appellants had in his address at the Tribunal insinuated that in the absence of explanation as to the reason for collating and declaring the results in INEC office at Afikpo outside the territory of Afikpo North west Constituency by RW15, the Returning Officer who was a party to the petition as 5th Respondent; the Tribunal just as he has asked this court to do, should follow the decision in Agagu v. Mimiko (supra) and nullify the Election. Unfortunately, neither the witnesses nor learned counsel for the Appellants elicited evidence before the Tribunal to show that there was a place earlier designated as the constituency collation centre but RW15 (Dr. Achilike Beatrice code TIP), diverted the collation and announcement exercise of the election.
The learned counsel for the Appellants and the witnesses for the Appellants have not also told the Court the effect the announcement of result at the INEC office which should be the most convenient and secured place for announcement of such result to the parties in an ideal situation.
The results were signed by the Agents of the Appellants and they did/have not told either the Tribunal or this court the in Justice occasioned them or the substantial detrimental effect the announcement of the result at the INEC office had on their overall result at the election. It is gratifying that in citing and reproducing the dictum of their Lordships in Agagu v. Mimiko (supra) at pages 409-410 (see page 6 paragraph 3 .1.4 of the Appellants underlined certain salient portions of that decision inter alia:-
“….the Tribunal rightly, without pleadings and evidence, took judicial notice of the boundary lines of wards and the distance between one collation centre and another and found that one of the Appellant’s polling agents who signed Form EC8B for three wards that are several kilometres apart could not have signed the form at the wards collation centres I because the collation of results of the Electoral Units into Form EC8B was supposed to be done at the same time at different wards collation centres: in the circumstance, the Tribunal rightly nullified the result of the election in three wards.”
Clearly the scenario painted in Agagu v. Mimiko’s case is different from what transpired in our instant case. whereas the former case involved the signing of electoral results by an agent of a political party in three wards whereas collation of those results took place in the wards several kilometres away and the collation exercise took place simultaneously in those wards, except it can be shown that the said ward collation agents was omnipresence or possessed some magical powers that enabled him to disappear and appear at those three wards simultaneously, irregularity or electoral malpractice can be reasonably inferred from the documents hearing such signatures.
In our instant case however it is a case of announcing result at INEC office which is common to all the constituencies in Afikpo. Having not been able to tell us the negative impact such announcement had on the result of the election the Tribunal was right not to have followed Agagu v. Mimiko (supra)
to nullify the election.
Again, it would appear that the learned counsel for the Respondent have aptly cited Aregbesola v. Oyinlola (supra) at 676-677 paras F-D; where this court posited inter alia:-
“It is manifest that an election by virtue of Section 146(1) now 139(1) of the Electoral Act, shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of this Act. It must be shown clearly by evidence that the non-compliance has affected the result of the election. Election and its victory is like soccer and goal scored. The petitioner must not only show substantial noncompliance but also the figures, that is, votes that the non-compliance attracted or omitted. The elementary evidential burden of the “the person asserting must prove has not been derogated from by section 146(1) of the Electoral Act. The petitioners must only assert but must satisfy the court that non-compliance has so affected the result to justify the nullification.”
In the case at hand, the petitioners failed to discharge the burden cast on them to elicit cogent and credible evidence to show that the noncompliance affected the votes he garnered at the election so as to justify our nullification of the election.
On another wicket learned counsel in his bifurcated submissions had urged us to hold that by the Tribunals’ refusal to pronounce on the legal effect of infraction of section 27 (2)(c) of the Electoral Act, they (Appellants) have been occasioned a miscarriage of Justice.
Learned counsel for the 1st Respondent has also dealt such insinuation a deadly blow when he asserted on the authority of Eze v. Okweremuo (supra) that it is not every error committed in a judgment that would warrant the reversal of such judgment as the law is trite that it is only where such a judgment occasioned a miscarriage may be upturned. In the instant case, I cannot see nay through any miscarriage of Justice occasioned the Appellants in the refusal of the lower tribunal to pronounce on the issue in question. This is therefore resolved against the Appellants.

ISSUE NUMBER 3
On whether the failure of the 2nd Respondent to call evidence at all and the 3rd- 5th Respondents’ failure to call evidence in support of most parts of their pleadings, amounted to abandonment of their Pleadings; the learned counsel for the 1st Respondent had made this the 1st Respondent’s issue 2 in its Brief of Argument. See page 7 paragraphs 5.0 to page 9 paragraph 6.2 of the Brief. He has submitted in reaction to the contentions of learned counsel for Appellants that the 2nd Respondent filed its Reply to the petitioners petition on 24/06/2011 and same was deemed filed on 28/6/2011 and as such joined issues with the petitioners with respect to the averments in their said petition.
Citing sections 131-133 of the Evidence Act, 2011, he submitted that where issues are joined, the burden of proof rests on the party that asserts. In this case, the learned counsel for the 1st Respondent submitted, the failure of the 2nd Respondent to call witnesses at the tribunal did not amount to the abandonment of pleadings or admission of the allegations in the Appellants pleadings. He noted that the learned counsel for the 2nd Respondent cross examined the witnesses called by the petitioners extensively during the trial which cross-examination punctured the case of the petitioners. Our attention was drawn to pages 233-243 of the Records and the case of Akomolafe v. Guardian Press Ltd. (2010) 2 NWLR (pt.1181) 338 at 357 paras F.H; 353 – 354 paras. H-B. SC; to assert that facts elicited from the cross examination of those witnesses amounts to the evidence of the 2nd Respondent. Learned counsel further noted that at the close of the 1st respondent’s case, the 2nd Respondent opted to rest its case on that of the 1st Respondent which implication in law is that the 2nd respondent relied on the evidence of the cross examination of PW1-PW11 and those of RW1-RW13 submitting that since the 2nd Respondent did not admit any of the allegations of the petitioners. Accordingly he maintained that the Tribunal was right when it weighed the totality of the evidence adduced and gave judgment in favour of the Respondents. He then urged that the issue be resolve in favour of the Appellants.
The learned counsel for the 3rd- 5th Respondents in paragraphs 4.3 and 4.4 of their Brief, addressed the issue summarily when he posited that the petitioners’ witnesses did little or nothing to shake the credibility of the election let alone establish any act of the respondents that amounted to substantial non-compliance with any provision of the Electoral Act. He relied on the dictum of Tobi, JSC; in Buhari v. INEC (2008) 19 NWLR (pt246) at 409-412; on the evaluation of evidence to buttress his submission in that regard. This notwithstanding, the learned counsel for the 1st Respondent had submitted in support of the 3rd- 5th Respondents at pages 3-4 of the 1st Respondent’s Brief paragraph 4.2 to 4.3 thereof, that the petitioners failed to adduce sufficient evidence to support their prayer in paragraph 30 of the petition but rather led evidence against the 1st and 2nd Respondents. Pages 233-243 refer.
In our attempt at answering the question posed by this issue, it is necessary to have a look at the pleadings of the petitioners and their prayers as well as the evidence led in support of the allegations against the 2nd ,3-5th Respondents and whether they had abandoned their Replies and/or conceded to the case of the Appellants.
From the pleadings in the petition and the evidence of the PW11/1st Appellant as contained in his Statement on Oath paragraph 2-23 thereof it is clear that all the allegations of malpractices which included but not limited to exclusion of members of ANPP from participation in the 26th April, 2011 election, intimidation; thuggery, rigging, chasing away of agents; massive thumb printing, multiple voting, excess voters cards, violence, ballot box snatching, stopping of voting half way when it was discovered that the ANPP was winning, sharing of money, beating up of ANPP agents, absence of voters registers, importation of unregistered voters into exercise books wherein they were registered and threat to lives were all against the 1st and 2nd Respondents.
However, the petitioners rather prayed in their prayer 30 of the petition thus:
“Whereof the petitioners’ pray that it be determined that the use of thugs, vote buying, intimidation, deferent ballot papers in different polling units in the Afikpo North West State Constituency by the 3rd respondents and their agents in the 5 wards of Ezeke/Alepoha ward “A” and ward “B” have rendered the said election null and void for being in violation of the Electoral Act, 2010 and the Manual for Electoral Officers 2011″
A look at pages 233-243 which contain the response to the cross examination of the witnesses for the petitioner would show that they were all on allegations against the 1st and 2nd Respondents and their agents. Besides, the witnesses did not appear to be in full grasp of their case. Only a sample of a few of those witnesses’ testimonies would demonstrate these flaws. For instance PW1 Chief Emmanuel Ugwu at page 233 who alleged that one Paul Agha was sharing money on behalf of the 1st Respondent admitted that he did not state this fact in his witness statement as according to him he did not know it was necessary. He admitted further under cross examination that the 1st Respondent did not send him to share money on his behalf. He also forgot to state that he was his parry agent in polling booths. Even the persons he alleged were involved in thumb printing were not mentioned in his statement on oath.
PW11 who was cross examined at page 242 admitted that he was accredited and he voted at his polling unit but when further questioned as to how many ballot papers were mass thumb printed, he could not tell. In Ezeke Primary school where he alleged election was marred with violence by PDP thugs, he admitted not mentioning the names of those who caused the violence. He would not also know the number of illegally thumb-printed ballot papers or where ballot papers were mass thumb-printed. In Ibii/Ozizza ward, the Petitioner also did not know the number of ballot papers that were illegally thumb printed in the polling units he visited nor in the wards. He also did not know the number of registered voters in the polling unit.
When cross examined by learned counsel for the 3rd- 5th Respondents he confirmed that in the polling unit where he voted there were about 600 registered voters and about 350 voters were accredited and voted. He scored more than 200 votes in his said polling unit.
On the 22nd August 2011, the learned counsel for the 2nd Respondent intimated the Tribunal that “I don’t propose to call my evidence. We (sic) ask the 2nd Respondent case or that of the petitioners and 1st Respondent.” Although what is contained in this Record is not clear, it would appear as the learned counsel for the 1st Respondent has aptly submitted; the 2nd Respondents counsel rested his case on those of the petitioners and the 1st Respondent. Indeed from the Record of proceedings of the 22nd day of August, 2011, after the 1st Respondent had closed his case, the learned counsel for 2nd Respondent opted to rest his case on those of the petitioner and 1st Respondent, Ibrahim Obiachu Esq. for the 3rd -5th Respondents asked for a date for defence as they were going to call five witnesses. The case was therefore adjourned to the 23rd August, 2011.
At page 297 of the Records, the learned Justices of the Tribunal after a careful appraisal of the evidence of the witnesses for the parties found that the witnesses called by the Appellants did not testify as to the effect of the malpractice and non-compliance alleged by the petitioners on the result of the election apart from having held earlier at page 296 that the petitioners did not adduce sufficient and credible evidence nor did they discharge the onus on them as to the number of votes affected by the acts of malpractices and non-compliance alleged.
In any event, as far as the gravamen of this case is concerned, the 2nd Respondent rested its case on those of the petitioners whose witnesses have been sufficiently discredited by the cross examination of its learned counsel as well as the case of the 1st Respondent as established by them through their witnesses. Having discovered that the Appellants did not discharge the onus placed on them to prove the allegations of electoral malpractices beyond reasonable doubt nay on the balance probabilities as far as the allegations of non-compliance by the 3rd- 5th Respondents were also concerned, the burden did not even shift to the Respondents to prove the contrary. The 2nd Respondent would either stand or fall with the cases of the petitioner and the 1st Respondent. See Buhari v. Obasanjo (2005) 13 NWLR (pt941) 1 at 222; Ezeanuna v. Onyema (2011) 13 NWLR (pt.1263) 36 at 73; Eze v. Okolagu (2010)3 NWLR (pt1180) 232 para D-E.
The submission of, the learned counsel for the Appellants and all the authorities cited to the effect that the 2nd and 3rd-5th Respondents had abandoned their case is therefore unfounded in law and fact, notwithstanding that the 2nd Respondent did not call witnesses. The Respondents did not therefore admit the allegations of the Appellants either directly or remotely; rather, the learned counsel on its behalf under cross examination of the Appellants’ witnesses sufficiently destroyed the Appellants’ case. To make matters worse, whereas the evidence of all the witnesses centred predominantly on the allegations of malpractices perpetrated by the 1st and 2nd Respondents as testified to by the witnesses for the petitioners, the Relief sought in paragraph 30 of the petition was rather against the 3rd Respondent. Thus the learned counsel for 1st Respondent was right to have cited Egom v. Eno (2008) 11 NWLR (pt1098) 320 at 343 para. H-B; where this court held that:-
“Parties are bound by their pleadings and so is the court. Any fact pleaded upon which no evidence is adduced is deemed abandoned, just as evidence led in respect of a fact not pleaded goes to no issue.” See also Aregbesola v. Oyinlola (2011) 1 NWLR (pt1253) 494. From the above authority the contention of learned counsel for the 1st Respondent that the evidence elicited by the petitioners/Appellants’ witnesses was at variance with their prayers and therefore go to no issue is well founded.

Finally on the effect of facts elicited under cross examination by an opponent against the testimonies of a rival’s witness, the recent case of Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (pt1181) 338 at 351 paras F-H and 353-354; ably relied upon by the learned counsel for the 1st Respondent says it all as the Supreme Court succinctly stated the position of the law thus:
“Evidence elicited from a party or his witness under cross- examination, which goes to support the case of the party cross examining, constitutes evidence in support of the case or defence of the party. If at the end of the day, the party cross -examining decides not to call any witness, he can rely on the evidence elicited from the cross-examination in establishing his case or defence. In such e case, it cannot be said that the party called no evidence in support of his case or defence. However, it can be said that the party called no witness in support of his case or defence, not evidence, as the evidence elicited from his opponent under cross examination, which are in support of his case or defence, constitute his evidence in the case.”Since in the appeal at hand the 2nd Respondent rested its case on the Appellants and the totality of the evidence elicited was at variance with the allegations against the 3rd -5th Respondents who even called witnesses to rebut all the allegations against them, the 2nd and 3rd Respondents have not abandoned their case nor did they plead “no contest” as purported by the learned counsel for the Appellants. The issue is again resolved in favour of the Respondents.

ON ISSUE NUMBER 4:
Which relates to whether the tribunal was right in relying on the Addresses of the 3rd and 5th Respondents? Here again the learned counsel for the 3rd -5th Respondents whose final address is the subject of this issue did not address the issue but as usual the learned counsel for the 1st Respondent at page 9 paragraph 6.0 to page 10 paragraph 6.6 came to his aids and submission that when an issue is not raised and canvassed before a trial court, the court is not bound to pronounce on it.
As far as this issue is concerned our attention was drawn to the proceedings of 30/09/2011 when parties adopted their final written Addresses and that the Appellants failed and/or neglected to demand to be served with the final Address of the 3rd – 5th Respondents which conduct amounted to a waiver of their right to be served with the said Address, if at all.
Learned counsel also maintained that the petitioners also failed and/or neglected to raise the issue of finding the 3rd -5th Respondents’ final Address out of time at the lower Tribunal.
In the alternative learned counsel contended that assuming but not conceding that the Tribunal ought not to refer to the final address of the 3rd – 5th Respondents, the petitioners have failed to show how the final address had occasioned them a miscarriage of Justice. On the purpose of Address of counsel, learned counsel for the 1st Respondent cited Ogunsanya v. The State (2011) 12 NWLR (pt 1261) 401 at 437 paras. G-H; finally contend on the issues that it makes no difference to the judgment of the Honourable Tribunal whether the Address of the 3rd – 5th Respondent was relied upon or not. I have had a careful perusal of the proceedings of 30th of September, 2011 beginning from page 264 thereof where the lawyers for the respective parties announced their appearance to page 265 where each of them beginning from Erhenede Esq. for the 1st Respondent intimated the court that they have filed their final written Address and they were ready. Alobo Esq. for the 3rd to 5th Respondents also said they were ready. Okporie Esq. for the Petitioner also told the court: “we ere ready” and the Tribunal directed/ordered “Go on”.
After chiefs Erhenede and Alobo had adopted their respective Address then Okporie said:- “Okporie: We filed our written address on 21/9/2011.
We were not served with the written address of the 3rd – 5th Respondents:
We did not react to it. I adopt my written address dated 19/9/2011 our argument in that written statement on oath, like an affidavit should not contain a prayer. We urge the Tribunal to cancel the election in question and order a fresh election.
From the foregoing excerpts of the Record of proceedings the issue of filing the Reply of the 3rd – 5th Respondents did not arise out of time. No leave was sought in either the Tribunal or this Court to raise this fresh issue on Appeal, there is no doubt that the Appellants complained that they were not served with the Address of the 3rd – 5th Respondents but no objection was raised as to the filing of the Address out of time so that the Tribunal could pronounce on it and to enable this court be seised of the tribunal opinion for purpose of the Appeal.
The cases of Saleh v. Monguno (supra); Udoakagha v. Paico Ltd (supra); Cato v. C.B.N. (supra) ; Military Governor of Imo State v. Nwama; R. V. Vice Chancellor of University of Cambridge, Olatubosun v. NISER and the hordes of treaties and Human Right charters including Section 36(1) of the 1999 Constitution (as amended) are all authorities on the principle of Natural Justice/fair hearing and its twin pillars of Audi Alteram partem and Nemo Judex in Causa sua which doctrines are time honoured in our adjudicatory system. However, where a party did not take advantage of those principles at the earliest opportunity but acquiesced in the adoption of a purported wrong procedure, he cannot turn round to cry wolf and invoke the principles to his aid and disadvantage of his opponent.
This point was stressed by the by the erudite/emeritus judicial icon Tobi, JSC in the celebrated case of Inakoju v. Adeleke (2007) 4 NWLR (pt.7025) 423 at 627-622 paras G-A; when he stated:-
“The duty of the court of trial and appellate is to create the atmosphere or environment for fair hearing of a case but it is not the duty of court to make sure that a party takes advantage of the atmosphere or environment by involving himself in fair hearing, a party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn round to accuse the court denying him fair hearing. This is not fair to the court, and counsel must not instigate his client to accuse the court of denying him fair hearing.” See Orugbo v. Una (2002) 16 NWLR (pt.792) 175 and Ladoja’s case 2007 1 CCLR 240 at 361-362 paras 25-26.
Learned counsel for the Appellants has demonstrated one of those traits that warranted Tobi, JSC to remark in News Watch Communications Ltd. v. Atta (2006) 11 ALL NLR (pt.1) 211 at 224 that counsel, and quite a legion of them, find the fair hearing principle duly entrenched in the constitution as a pathway to success whenever they are in trouble on the merits of the litigation. He had noted that a good number of counsel report to the principle even when it is inapplicable in the case.
With the greatest respect, Okonkwo v. Okonkwo (supra), Nwakwo v. Onuma (supra) and Egolum v. Obasanjo were decided on sound legal principles and under their peculiar facts and circumstances, so were Alobi v. Lawal and Ika v. IMBA (supra),’ the pith and substance of this case is not as purported by the learned counsel for the Appellants and the judgment delivered by the lower tribunal is not flawed so as to warrant the entire proceedings being declared a nullity.
As was rightly submitted by the learned counsel for the 1st respondent, by failing and or neglecting to demand to be served assuming actually that they were not duly served, and also neglecting to raise the issue of filing the 3rd-5th Respondent out of time, the learned counsel had waived their right to complain here on appeal. In Ariori & Ors. v. Elemo & Ors. Obaseki JSC; following the English case of Vyvyan v. Vyvyan 30 Beav.65 per Sir John Romily. M.R. at page 74 (54 E.R. 817) enumerated the concept as follows; “the concept of waiver must be one that presupposes that the person who is to enjoy a benefit, but either neglects to exercise the right to the benefit or benefits, but either neglects to exercise his right to the benefit or where he as a choice of two, he decides to take one but not both.”
There is little doubt that, a man who is not under any legal disability should be the best judge of his own interest. If therefore having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights; or that he has suffered by his not having exercised his rights. He is, to put in another way, estopped from raising the issues. Anori v. Elemo [1983) 1 SC 13 at 26-27.
See further United Calabar Co. v. Elder Dempster Lines Ltd. (1972) 1 ALL NLR (pt2) 244 -253 and A.G, Bendel State v. V.A.G. Federation & Ors. (1981) 10 SC 1 at 166-167.

On another score, learned counsel for the 1st Respondent has rightly submitted that the use of 3rd-5th Respondent’s address had occasioned a miscarriage of Justice. For in the case of Ogunsanya v. The State (2011) 12 NWLR (pt.1261) 401 at 437 ably cited by him, the apex court re-echoing decisions in previous cases like Niger Construction Ltd. v. Chief A. O Okunagba (1987) 4 NWLR 787 at 782 per Oputa JSC; Ovobodo v. Stafford Olomu & Anor. (1957) 6 SC 134 at 193-194; per Rhodes-Vivour JSC succinctly put it thus:
“No amount of brilliant address or playing to the gallery by counsel can make up for lack of evidence to prove or defend a case in court. The main purpose of an address is to assist the court, and is never a substitute for compelling evidence. Failure to address will not be fatal or cause miscarriage of Justice, This is so whether counsel addresses a court or not the court must do its own research with the sole aim of seeking the truth and determining which side is entitled to judgment.”
I agree therefore that it made no difference whether or not the address of the learned counsel for the 3rd-5th Respondents was relied upon or not as the court found out upon the evaluation of evidence of the respective witnesses that the Appellants did not show the allegation of compliance or malpractices affected their votes at the election.
This issue shall again be resolved against the appellants.

ISSUE NUMBER 6:
Whether the tribunal was right in refusing to consider and pronounce on the competence or otherwise of the Reply of the 1st Respondent and whether from the circumstances of the case, such refusal has occasioned a miscarriage of Justice.
Learned counsel for the 1st Respondent at pages 12-13 paragraphs 6.10-6.11 of the 1st Respondent’s Brief and Issue 3 thereof articulated his response to the submissions of the learned counsel for the Appellants on this issue when he argued that Rule 4(5) (c) and well as Rule 12(3) of the First Schedule of the Electoral Act enjoin both the petitioner and Respondent to file along with the petition and Reply respectively list or copies of every document to be relied upon by the parties.
The provisions, he contended relate to where the parties would rely on documents during the trial. He then asserted that failure to comply with these provisions does not render either the petitioner or reply thereto incompetent. In Igbeke v. Emordi (2010) 17 NWLR (p1204) 1 at 40 paras D-F and 41 paras H.A was relied upon to pray us to resolve the issue in favour of the Respondents.
Now, paragraph 12(3) of the 1st Schedule to the Electoral Act, 2010 (as amended) states thus:-
“(3) The reply may be signed by the Respondent or the Solicitor representing him, if any shall state the state, the name and address of the Solicitor at which subsequent process shall be served; and shall be accompanied by copies of documentary evidence, list of witnesses and written statements on Oath.”
Paragraph a(5)(c) on the other hand provides that:
“(5) The election petition shall be accompanied by-
(c) Copies or list of every document to be relied on at the hearing of the petition.
Learned counsel for the petitioners had cited Ezekwesili v. Onwuamaegbu (supra) and Onyemaize v. Ojiako (Supra) on the need for the laid down procedures to be followed strictly and that failure of the 1st Respondent to follow the procedure in the aforementioned paragraphs is fatal to their case and the mandatory use of the word “shall” qualifying the accompanying copies of documentary evidence.
The cases cited by the Appellants like Atolagbe v. Awuni (Supra); Gambari v. Gambari (supra); Obaba v. Military Governor of Kwara State (supra) which may have been decided rightly on their peculiar facts and circumstances. Nobody also doubts the fact that in Afribank Nig. Plc. v. Akruara (2006) ALL FWLR (Pt. 204) 401- at 405. The Supreme Court had decided Rules of court are not made for fun but are made to be obeyed by parties and must be obeyed by all parties in order to ensure order and certainty in the judicial process. However, the same Supreme Court has also held that Rules of court are handmaids for the smooth oiling of the wheel of Justice and that it should not be strictly complied with where such compliance would lead to asphyxiation of the Justice and the care of a party.
Therefore where Justice demands the tribunal and court are want to bend over backwards to dispense with the strict application of the Rules. In the case of Election Tribunals and proceedings before them, which are sui generis the makers of the Rules have taken care of the fickle mindedness and volatility of human thinking particularly where because of the time essence of such proceedings mistakes are bound to occur in the conduct of cases by counsel.
Accordingly paragraph 53(i) of the 1st Schedule expressly provides that non-compliance with any of the provisions of the schedule or with the Rule of Practice for the time being operative, except otherwise stated or implied, shall not render any proceeding void unless, the Tribunal or court so directs, but that the proceeding may be set aside wholly or in part as irregular, or amended or otherwise doubt with in such manner and on terms as the Tribunal or court may deem fit and first. See section 140(4) of the Electoral Act 2010 see also Ogunsakin v. Ajidara (2008) para. C this court (Ilorin Division) following the dicta of Oguntade and Tobi, JJCA; in Buhari v. Obasanjo (2003) 17 NWLR (pt. 850) 423; Buhari v. Yusuf; Egolum v. Obasanjo; Nwole v. Iwuagu (2004) 5 NWLR (pt. 895) 61 at 88-89 particularly PDP v. Taiwo (2004) 8 NWLR (Pt. 876) 656 interpreted paragraph 4(i) (c) and 4 (6) of the 1st Schedule to the 2006 Electoral Act which is in pari materia with paragraph 12(3) of the 1st schedule to the current Electoral Act, 2010; we were minded to hold that the provisions of paragraph 4 and indeed paragraph 12(3) of the schedule which is now the above of contention are permission in the con in which they are used and not mandatory as purported by the learned counsel for the Appellants. It is reiterated here again that both section 140(4) of the Electoral Act and paragraph 53(1) of the 1st Schedule to the Electoral Act gives the Tribunal the discretion to save the petition or any process filed by a party who failed to comply with the schedule or Rule of Court.
Indeed paragraph 53(i) of the 1st schedule is aimed at staving off a situation where a breach of any of Rules of court or provision of the Schedule would lead to an unjust or unreasonable and by striking out the petition or process filed by a party like the Reply of the 1st respondent which was not accompanied. In any case, the learned counsel for the 1st Respondent had cited a recent decision of this Court (Enugu Division) Per Ariwoola, JCA (as we then was) at pages 40 paras D-F and 41 Paras H-A on the effect of failure to comply with paragraph 12(3) of the 1st schedule to the Electoral Act; where His Lordship now of the Supreme Court stated the position of the law inter alia:-
“Both the petitioner and Respondent to a petition are required to attach and file the list or copies of all documents they desire to rely on at the hearing of the petition.
However, where either the petitioners or the Respondent fail to do so with their reply, the necessary effect of such failure or disobedience or disregard to comply with the requirements of the Practice Direction is that the petitioner or respondents will not be allowed to use or rely on any such document not attached or listed with the petition or reply as required by the practice direction.” See Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) 1 at 40 paras E-G.
The learned Law Lord went further to state that the same Practice Direction empowers the Tribunal to still give a party in breach of the procedure on filing of replies with documents sought to be relied on or list of witnesses a reprieve upon special circumstances and leave being sought and granted by the offending party.
In the appeal at hand there is no doubt the learned counsel for the Appellants raised the issue of non-compliance with the provision of paragraph 12(3) of the 1st schedule to the Electoral Act but it was not clear whether it was list of documents or list of witnesses which the 2nd defendant sought to rely on that were not annexed or did not accompany the reply it filed at the Tribunal.
In any case, the learned counsel for the 1st Respondent had explained in his submission at page 12 paragraph 6.10 of the 1st Respondent’s brief that the provision relates a Respondent who intends to tender and rely on documents (and if I may add) who intends to call witnesses.
In this case the 2nd Respondent did not or could not have tendered any document and/or called any witness as it relied on the cases of the petitioner and 1st Respondent. The court was therefore in order to have discountenanced and refused to pronounce on the competence or otherwise of the reply of the 1st Respondent.

ISSUE NUMBERS 2 AND 5: WHETHER THE TRIBUNAL PROPERLY CAREFULLY, AND DISPASSIONATELY EVALUATED THE EVIDENCE OF THE WITNESSES AND ARRIVED AT THE FINDINGS THAT THE ENTIRE TESTIMONY/EVIDENCE OF THE WITNESSES OF THE APPELLANTS IS UNRELIABLE ON THE GROUND OF INCONSISTENCY, CLEAR AND MANIFEST MATERIAL CONTRADICTIONS AND THAT THE PETITIONERS /APPELLANTS FAILED TO PROVE THEIR PETITION; AND WHETHER THE JUDGEMENT IS AGAINST THE WEIGHT OF EVIDENCE AND WHETHER FROM THE EVIDENCE AVAILABLE, THE APPELLANTS WERE ABLE TO PROVE THEIR CASE TO ENTITLE THEM TO THE RELIEFS SOUGHT.
The above issues are the same with Issue I of the 1st Respondent and 1, 2 and 3 of the 3rd – 5th Respondents. In his arguments in response to the issues formulated by the Appellants above, submitted first that the evidence led by the Appellants is at variance with their Relief as appears in paragraph 30 of the petition. He referred to pages 233-243 of the Record of proceedings which contains the testimonies of the petitioners against the 1st and 2nd Respondents but that they failed to adduce evidence against the 3rd – 5th Respondents to support their prayer. He then replied on Egom v. Eno (2008) 11 NWLR (pt. 1098) 230 at 343 para. H-B holding 4 and Aregbesola v. Oyinlola (2011) 1 NWLR (pt 1253) 494 on the effect of leading evidence which does not support the facts pleaded to submit that the evidence of the petitioners do not support their pleading in the petition.
On another score learned counsel contended on the authorities Buhari v. Obasanjo (2005) 13 NWLR (pt.941) page 1 at 223 and Ezeanuma v. Onyema (2011) 13 NWLR (pt.1263) 36 at 73 that where elections petition is founded on allegations of irregularities and non-compliance with the Electoral laws, the onus lies on petitioners to first establish the irregularities or noncompliance through credible, cogent and compelling evidence and that the irregularities and non-compliance are substantial and did not or could have affected the result of the election.
He maintained again citing Eze v. Okologagu (2010) 3 NWLR (pt.1180) page 783 at 783 at 232 paras D-E; that is after that petitioners have discharged this task that the Respondents would be required to contradict the petitioners. As for the main question in issue, the learned counsel insisted that the learned Justices of the Tribunal at pages 284-296 placed the evidence of the witnesses of the parties on the imaginary scale before coming up with its judgment pages 270-279 of the Records and Aregbesola v. Oyinlola (supra) at 458, Ezeamina v. Onyema (supra) 36 at 73 were relied upon on the duty of trial courts.
Placing reliance further on Omotayo v. CSA (2010) 16 NWLR (pt 1218) 1 at 23-24 paras. C-G S.C; and Nkebisi v. The State (2010) 5 NWLR (pt.1188) 71 at 492 paras A-B; he maintained that the Tribunal arrived at its decision of 24/10/2011 after considering the evidence of the parties. He finally urged us to resolve the issue in favour of the Respondents.
In his argument on the issues learned counsel for the 3rd-5th Respondents submitted that three basic questions should agitate our minds in the determination of the issues which are:-
(a) Whether the Tribunal properly evaluated the evidence of the parties’ witnesses on the balance of probabilities?
(b) Were the two sides given equal opportunities to present their cases without any of the one side shut out?
(c) Were the petitioners able to prove the alleged non-compliance with Electoral Act substantially enough to warrant cancellation of the election or warranting the trial tribunal to hold otherwise.
He then posited the authority of Aregbesola v. Oyinlola (supra) at 458 that once the court had given the two sides in dispute equal opportunities to present their case and the court properly evaluated and ascribed probative value to the evidence of the witnesses according to their merit, the court is more likely to arrive at a fair and balanced decision that will be impartial and not occasion miscarriage of Justice.
As for the case now on appeal, he took the view that the tribunal observed the above procedure as laid down in Mogaji v. Odofin (1978) 3-4 SC 97; Eze v. Okolagu (supra) and Aregbesola v. Oyinlola (supra); before arriving at its judgment. He referred us again to Hashidu v. Goje (2006) EPR 789 on the duff of the court in its evaluation exercise and primary function as against that of the appellate court. Kwarra v. Innocent (2009) 1 NWLR (Pt. 1121) 179 and Agbaje v. Fashola (2008) 6 NWLR (pt 1052) 90 also refer. It was further submitted citing Onwudinjo v. Dimobi (2006) 1 NWLR (pt. 961) 318 Chime v. Ezea (2009) 2 NWLR (pt 1125) 63; Igbeke v. Emordi (2010) 11 NWLR (pt 1204) and Buhari v. INEC that since the record was properly evaluated, the decision of the Tribunal stands until proved otherwise furthermore, from the totality of the evidence the scale of Justice tilts in favour of the Respondents.
On whether the election was conducted in substantial conformity with the Electoral Act, he submitted that the petitioners who asserted must prove the allegation of non-compliance to conform with standard of proof in our law- either beyond reasonable doubt if alleged is criminal and on the balance of probability where the allegations are mere civil. Nwobodo v. Onoh (1954) 1 SCNLR 1, Ajadi v. Ajibola (2004) 16 NWLR (pt 900) and section 131-136 of the Evidence Act, 2011 were relied upon to submit that the allegations of vote buying, electoral malpractices and non-compliance were barely proved. Learned counsel also submitted in line with his colleague placing reliance on Awolowo v. Shagari (1984) SCNLR 2478 at 506 and Buhari v. Obasanjo (2005) 13 NWLR (pt 941) 1 at 91 on what a petitioner who alleges non-compliance should prove, pointing out that that petitioners did not do this as can be gleaned from their scanty evidence on Record which did not shake the credibility of the witnesses for the election or link the Respondent with the allegation of non-compliance. Still on proof of the allegation, he relied on Ukpo v. Miniko (2009) 7 NWLR (Pt. 1140) 943 Fayemi v. Oni (2010) 17 NWLR (pt 1222) at 326 to reiterate that the tribunal could based on a voyage of speculation were the petitioners did not lead evidence against the 3rd-5th respondents who conducted the election.
Citing Section 139(1) of the Electoral Act in support as well as Buhari v. Obasanjo (supra); Ezeanuna v. Onyema (supra) it was argued that since the Tribunal evaluated the evidence before arriving it its verdict, it buttresses the fact that the election was conducted in substantial compliance with the Electoral Act, 2010. We were then urged to dismiss the appeal.
On the 3rd issue of the 3rd-5th Respondents which posed the question as to whether we can interfere with the decision of the trial court, learned counsel referred us to Woluchen v. Gudi (1981) 5 SC. 291. Ezekwesili v. Agapaonwu (2003) FWLR (pt.162) 2016 per Iguh JSC at 2052 paras B-D; to conclude that it is on record that the Tribunal painstakingly applied the principles guiding evaluation of evidence as enunciated by the Supreme Court per Tobi, JSC. In Buhari v. INEC (2008) 19 NWLR (pt.246) at 409-412 which he enumerated at page 9 of the 3rd-5th Respondents’ Brief to urge us to dismiss the appeal with substantial costs.

RESOLUTION.
I have carefully considered the submissions of the respective learned counsel on the composite issues that call for determination. As has been submitted rightly in my view and on the avalanche of authorities cited by the learned counsel on all sides, particularly the Respondents, the petitioners anchored their petition on mostly criminal allegations and substantial noncompliance with the Electoral Act and the Manual for Election Officials, 2011.
Seeju at page 3, 11-16 pages 4; 17-24 page 5 of the Record of proceedings where the petitioners stated the Grounds and particulars upon which their petition was predicated.
I reiterate as I said earlier in respect of Issue Number 3 that from the pleadings in the petition and the evidence of the PW11/1st Appellant as contained in his Statement on Oath paragraph 2-23 thereof; it is clear that all the allegations of malpractices which included but not limited to exclusion of members of ANPP from participation in the 26th April, 2011 election; intimidation, thuggery rigging chasing away of agents; massive thumb printing, multiple voting, excess voters cards, violence, ballot box snatching, stopping of voting half way when it was discovered that the ANPP was winning, sharing of money, beating up of ANPP agents, absence of voters registers, importation of unregistered voters into exercise books wherein they were registered and threat to lives which were all against the 1st and 2nd Respondents; were all criminal in nature.
However, the petitioners rather prayed in paragraph 30 of their petition thus:
“Whereof the petitioners’ pray that it be determined that the use of thugs, vote buying, intimidation, different ballot papers in different polling units in the Afikpo North West State Constituency by the 3rd respondents and their agents in the 5 wards of Ezeke/Akpoha ward “A” and ward “B” have rendered the said election null and void for being in violation of the Electoral Act 2010 and the Manual for Electoral Officers 2011″
Without belabouring the point, it is clear that whereas the allegations of electoral crimes were attributed by the relief sought and above reproduced, to the 3rd Respondent the totality of the evidence as has been observed from the witness’ Statements on Oath is rather against the 1st and 2nd Respondents. If we may ask, could the INEC/3rd Respondent have carried out acts of vote buying, intimidation of the Appellants, ballot stuffing, and sporadic shootings to scare agents of the Appellants? I think not. This being the case, the learned counsel for the Respondents were right when they submitted on the authorities of Egom v. Eno (supra) at page 343; that parties as well as the courts are bound by the parties’ pleadings and any fact pleaded upon which no evidence is elicited in support is deemed abandoned just as evidence led on facts not pleaded go no issue. Again, as was equally decided in Aregbesola v. Oyinlola (supra) at page 494; facts averred in pleadings must be substantiated and proven with credible evidence in the absence of which the averments in the pleadings shall be deemed abandoned.
Learned counsel for the Appellants in his Reply Brief insinuated that the submission by the 1st Respondent’s counsel that the evidence of the witnesses for the petitioners were at variance with their (Appellants’) prayer /Relief sought, is an objection which ought to be raised at the trial or here in this Court by way of cross -appeal. Nothing can be further from the truth and the law as the point raised by the Respondents is a salient issue of law and fact arising from the outcome of the proceedings after hearing evidence from the parties. The reliance placed on Paragraph 5 3(2) of the First Schedule to the Electoral Act, 2010(as amended) and the cases of Agagu v. Mimiko (supra)398, Nyako v, Action Congress (2009) 2 NWLR (pt.1126) 524; Ojukwu v. Yar’Adua and INEC v. Action Congress (2009) 2 NWLR (pt.1126) 602; are with the greatest respect inapplicable to the circumstances of this case and accordingly the submissions of learned counsel in that respect is totally misconceived and shall be discounted and discountenanced.
Going to the substance of these composite issues, the law is settled on a plethora of authorities and as provided under of our Evidence Act; particularly sections 131 to 136 thereof, since the Appellants were the ones who alleged the commission of crime or non-compliance against the Respondents, the onus was on them to lead credible, cogent and compelling evidence to establish their allegations. See particularly sections 131(1) (2)and 132 of the Evidence Act 2011.

In the case of the criminal allegations, Section 1-35 (1), (2) and (3) of the Evidence Act placed the onus and burden of proof which burden does not shift but is constant, on the Appellants and it was only where they had established a prima facie case against the Respondents that the burden of eliciting rebuttal evidence to prove the contrary would have shifted to the Respondents.

In the case of allegations of civil nature against the Respondent either individually or collectively; it was also the bounding duty of the Appellants to prove them on the balance of probabilities or preponderance of evidence otherwise the Tribunal was entitled to dismiss their petition. See Nwobodo v. Onoh (1984) 1 SCNLR 1, Dantiye v. Kanya (2009) 4 NWLR (Pt. 1130) 13 at 33, Abubakar v. Yar’Adua (2008) 19 NWLR (Pt.1120) 1 at 143 -144 paras A-D Chukwurah v. Anyakora (2006) ALL FWLR (Pt.302) 121 at 137.

The learned counsel for the Respondents were therefore right to have submitted that the law is trite as decided Eze v. Okologagu (2010) 3 NWLR (pt.1180) page 183 at 183 at 232 paras D-E; that it was after the petitioners had discharged this onus and burden that the Respondents would be required to lead evidence in rebuttal of the petitioners’ case. Now considering the totality of the evidence elicited by the parties and the copious submissions of learned counsel on behalf of the parties, the pertinent question that calls for an answer is whether the Appellants discharged the burden cast on them to prove their allegations as provided by law.
As I said earlier on Issue Number 3, a look at pages 233-243 which contain the responses to the cross examination of the witnesses for the petitioner would show that they were all on allegations against the 1st and 2nd Respondents and their agents. Besides, the witnesses did not appear to be in full grasp of their case. Only a sample of a few of those witnesses’ testimonies would demonstrate these flaws. For instance, PW1 Chief Emmanuel Ugwu at page 233 who alleged that one Paul Agha was sharing money on behalf of the 1st Respondent admitted that he did not state this fact in his witness statement as according to him he did not know it was necessary. He admitted further under cross examination that the 1st Respondent did not send him to share money on his behalf. He also forgot to state that he was his party agent in polling booths. Even the persons he alleged were involved in thumb printing were not mentioned in his statement on oath.
PW11 who was cross examined at page 242 admitted that he was accredited and he voted at his polling unit but when further questioned as to how many ballot papers were mass thumb printed, he could not tell. In Ezeke Primary school where he alleged election was marred with violence by PDP thugs, he admitted not mentioning the names of those who caused the violence. He would not also know the number of illegally thumb-printed ballot papers or where ballot papers were mass thumb-printed. In Ibii/Ozizza ward, the Petitioner also did not know the number of ballot papers that were illegally thumb printed in the polling units he visited nor in the wards. He also did not know the number of registered voters in the polling unit. When cross examined by learned counsel for the 3rd- 5th Respondents he confirmed that in the polling unit where he voted there were about 600 registered voters and about 350 voters were accredited and voted. He scored more than 200 votes in his said polling unit.
It would also be recalled that PW5 and PW6 who claimed to be agents of the petitioners at Ama ozara polling unit did not plead that Amaozara had two polling units 008 and 009 yet PW5 testified that he was the petitioners’ agent at unit 008. PW6 on the other hand said he was an agent in Amaozara village square unit 009. The evidence of the PW3 and PW4 like those of the PW5 and PW6 were also at variance with the Appellants’ pleadings. On the part of the Respondents, RW1-RW18 their evidence as rightly submitted by counsel for the Respondents were not challenged in all material respect as they testified that the election was conducted in substantial compliance with the Electoral Act, and that all the irregularities and allegations of criminal conduct levelled against the 1st and 2nd Respondents never took place. It is also pertinent to note and as rightly observed by learned counsel for the 3rd-5th Respondents that the Appellants did not adduce enough or credible evidence to sway the mind of the Tribunal as their cross examinations of the Respondents witnesses were very scanty.
Now the pertinent question is whether the learned Justices of the Tribunal carried out a dispassionate, discreet and proper evaluation of evidence before arriving at their findings that the entire testimonies/evidence of the witnesses for the Appellants were unreliable on grounds of inconsistencies, material contradiction warranting them to hold that the petitioners failed to prove their petition. Differently put, did the learned Justices in the course of/or after the evaluation of the witnesses evidence put the sets of evidence on the imaginary scale of Justice as propounded in the cases of Mogaji v. Odofin (1978) 3-4 SC 91; Eze v. Okolagu (supra) and Aregbesola v. Oyinlola (supra); Hashidu v. Goje (2006) EPR 789; Kwarra v. Innocent (2009) 1 NWLR (Pt.1121) 179 and Agbaje v. Fashola (2008) 6 NWLR (pt. 1082) 90; before arriving at its judgment?
To answer this question it is only appropriate to have a careful perusal of the judgment of the Tribunal as contained in pages 268-300. It would be recalled that from the Records the evaluation of the witnesses’ testimonies spans pages 270-279. At page 283-284 of the Records the learned members of the Tribunal rightly held in line with the decisions in Buhari v. Obasanjo (supra) and Ezeanuna v. Onyema (supra) that their duty was to determine in the first instance whether the petitioners had discharged the onus on them as laid down by those authorities. Their Lordship then started by considering the evidence led by the witnesses in support of their pleadings in the wards questioned and made their findings at pages 284-296 as follows:
1. Ibii/Ozizza Ward: Here, the only witness PW8 who testified that there was no accreditation in the polling units of this ward and that members of the ANPP were chased away by agents of the 4th Respondent(Resident Electoral Commissioner Of Ebonyi State) who allegedly thumb printed the ballot papers by themselves and declare the results, eventually admitted under cross examination that he was accredited and voted like any other person at the polling unit and that the result sheet was signed by agents of his political party. The tribunal then held that in view of these admissions the petitioners did not prove their allegations of irregularities and non-compliance more so, when RW6 called by the 1st Respondent as agent of the 2nd Respondent at the polling unit in question testified unchallenged as to the full processes of election i.e. accreditation, voting, counting of votes, announcement of results and pasting of result sheet at the polling units; having taken place.
2. Akpoha Ward: The Tribunal also evaluated the evidence of PW10 and that of RW3 and found out that the allegations in paragraph 16 of the petition were not supported by the evidence and there being
no nexus between the evidence of the PW10 and the allegations in the said paragraph of the petition particularly where RW3 denied the allegations of irregularities in the 12 polling units.
3. Akpoha Ward A (Amata): Where allegations were made on four polling units, evidence was led on two polling units only of Ama Ozara and Amaogu. These were the units where the PW5, PW6 and PW11 testified on allegations of massive thumb printing of ballot papers, forced signing of result sheets and non-announcement of accredited voters; chasing away of members of ANPP, firing gunshots sporadically. The Tribunal found out that the evidence led by the witnesses fell short of the requirement of the law. They also reflected on the evidence of the PW9 for Amaogu polling unit and came to the conclusion that the evidence was not enough to discharge the onus on the Petitioners to prove payment of people to vote several times in favour of the 1st Respondent.
4. Ezeke Amasiri: Where PW1 was called and it was discovered that his evidence-in -chief in prove of the allegations of irregularities and non-compliance was at variance with his answers to cross examination and RW2 who testified in defence of the 1st and 2nd Respondents that due process of election took place thereat was not shaken under cross examination and his testimony was preferred to that of the PW1.
5. Orie Market PW7 was called to support the allegations of intimidation of supporters of the petitioners and invasion of the polling unit by stalwarts of the 2nd Respondent who campaigned for votes and directed voters to vote for the 1st and 2nd Respondents.
The tribunal discovered that the irregularities alleged had no relationship with the number of registered voters and the votes cast in the constituency.
6. Ezeke Primary School of Ezeke Amasiri Ward: The Tribunal discovered that there was a conflict between the testimony of PW4 and that of PW11 who alleged that there was no accreditation and voting where as the said PW4 alleged that he stood in for the agent of the Appellants who ran away because he was to be arrested by the police for protesting irregularities in the election, he declined to sign the result sheet. The tribunal also discovered that there was no link between the irregularities and the number of votes cast at the polling unit and constituency.
7. Amaokpu Village Square: Irregularities and non-compliance related to non accreditation, announcement, invasion of the polling units by thugs, led by the Coordinator of Amasiri Development Centre who shot into the air and stuffed the ballot box with already thumb printed ballot papers and that they were not given result sheets. PW3 who testified for the petitioners admitted that accreditation was done although the number of accredited voters was not announced. RW8 testified on behalf of the 1st and 2nd Respondents to the contrary and was found not be shaken under cross examination by the Tribunal. Accordingly, the Tribunal relied on the authorities of Haruna v. Modibbo (2004) 16 NWLR (pt.900) 482 and Iniama v. Akpabio (2005) 17 NWLR (pt 1116) 225 at 305 and 334; to hold that the law as they know it is that ballot boxes allegedly stuffed must be tendered before the Tribunal and opened to sustain the allegation and if not tendered then the allegation is not proven. The allegations were therefore held not have been established.
The Tribunal also went on to consider the evidence on the allegation in Poperi/Amasiri ward where 1st Petitioner/PW11 testified in respect of the irregularities in the 52 polling units in his constituency but stated under cross examination that he did not know how many ballot papers were unlawfully thumb printed or in how many of the polling units that he won the election. The learned Tribunal Justices came to the conclusion that the allegations of inducements and other irregularities complained about in two (2) of the thirteen (13) wards above listed were not made out. On the whole at page 296 the learned Justices held:
“From the foregoing appraisal of the evidence adduced in respect of the polling units in which the petitioners complained of irregularities and non-compliance it is clear to us that the petitioners adduced evidence in proof of the allegations in 11 of the 52 polling units in Afikpo North West House of Assembly Constituency of Ebonyi State. In nine of the polling units the allegations were not proved by credible evidence while in the remaining two polling units the evidence adduced is insufficient to discharge the onus on the petitioners as the number of votes affected by acts alleged were neither pleaded nor proved.”
It would be recalled also that the learned Justices from the totality of the evaluation exercise came up with the findings that the petitioners set out the officially declared scores of the candidates at the election in paragraph 7 of their petition which was expressly admitted by all the Respondents in their respective Replies that whereas the 1st Petitioner only scored 1662 votes, the 1st Respondents scored a whopping 12000 votes.
Their Lordships also found that the witnesses called by the petitioners did not testify as to the effect of the malpractices and non-compliance alleged by the petitioners on the result of the election; as indeed 1st Petitioner himself who was PW11 replied under cross examination by learned senior counsel for the 2nd Respondent, Ulasi, SAN; that he did not know the number of ballot papers that were unlawfully thumb printed in the polling units in the constituency. He also did not know in how many of the 52 units in the constituency, that he won the election.
The learned Tribunal Justices then considered the provisions of Sections 138(1)(b) and 139(1) the latter which provides that:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election;” against the decision in Ojukwu v. Yar’Adua (2009) 12 NWLR (pt.1144) 50; per Tabai JSC at 113; where the Supreme Court had cause to pronounce on Sections 145(1)(b) and 146(1) of the Electoral Act, 2006 which are in pari materia with Sections 138(1)(b) and 139(1) of the Electoral Act, 2010 (as amended). They then posited that in the instant case, the petitioners did not plead in any of the paragraphs of their petition that the non compliance relied upon in the only ground of the petition substantially affected the result of the election and that even if the petitioners had adduced evidence showing the effect of the alleged non-compliance there would have been no foundation for such evidence in their pleadings. In conclusion their Lordships then anchored their judgment as follows:
“Following from the totality of foregoing, we hold, in answer to the only question posed for determination, that the petitioners hove failed to plead and prove the irregularities and non-compliance with the Electoral Act, 2010 (as amended) as required by law to entitle them to the relief sought.
The relief sought is accordingly refused and the petition is dismissed in its entirety. The election and return of the 1st Respondent in the said election is affirmed by us.”
Before answering the question as to whether the learned trial Justices properly and dispassionately or carefully evaluated the evidence of the witnesses before arriving at the final decision that the Petitioners failed to prove their petition; let me reflect albeit briefly, on the question posed by the learned counsel for the Appellants in their Issue Number 5 as to whether the judgment of the Tribunal is against the weight of evidence. This Issue is distilled from Grounds 2, 9 and 10 of the Grounds of Appeal and it is trite that such grounds of appeal as couched are commonly known in legal parlance as the omnibus grounds and are usually an attack on the findings of facts and normally entails the examination of the facts in the that gave rise to the judgment of the court of first instance by an Appellate Court. See Chief Etowa Enang v. Chief Fidelis Adu (1981) 11-12 SC 25 at 26 and Chief Michael Owhotenu-Kowo & Anor. v. The State (1983) 5 SC 17 at 22, Bakare v. The State (1987) 1 NWLR 579.
The purport of the grounds as has been held by decided authorities is to invite an Appellate Court to examine the facts, apart from misdirection of law, which support the judgment against which an appeal has been lodged. It is said that such a ground of appeal presupposes that the judgment of the trial court cannot be supported by the weight of the evidence elicited by the successful party which the court of first instance accepted rightly or wrongly or that the inference drawn or conclusion reached by the trial court based on the accepted evidence is unjustifiable. See Finnih v. Imade (1992) 1 NWLR 511 at 543; Anyaoke v. Adi (1986) 3 NWLR 731. On another score, the implication of an omnibus ground is that when the evidence elicited by the Appellant and the Respondent is placed side by side and weighed against each other, the judgment given in favour of the Respondent is against the totality of the evidence. See Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93; Sha v. Kwan (2000) 5 SCNJ 101 at 116; Ndiwe v. Okocha (1992) 7 NWLR 129.
In Ajibona v. Kolawole (1996) 72 SCNJ 270 at 277 and 280. The Supreme Court explained that a complaint that the judgment is against the weight of evidence is of necessity against the totality of the evidence adduced before the court and not on a finding of fact on a specific issue or document as the case may be. In other words the complaint questions the appraisal and evaluation of all the evidence adduced and not the weight to be attached to any particular piece of evidence. See Civil Procedure in Nigeria, Second Edition (2000) by Fidelis Nwadialo, SAN (of blessed memory) at pages 809 -810.
I have carefully reappraised the totality of the evidence adduced by the parties in this case in line with the principles above enunciated and the legal authorities above cited and I am satisfied that the learned Justices of the tribunal passionately, discretely and properly evaluated the totality of the evidence of the witnesses called by the parties and erected an imaginary scale of Justice where he placed the respective evidence and weighed them as required by Mogagi & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93; Aregbesola v. Oyinlola (supra) at 458, Ezeamina v. Onyema (supra) 36 at 73; Omotayo v. CSA (2010) 16 NWLR (pt 1218) 1 at 23-24 paras. C-G S.C; and Nkebisi v. The State (2010) 5 NWLR (pt.1185) 71 at 492 paras A-B; same before coming to the inevitable conclusion that the Petitioners did not prove their case as required by law.
Before rounding up it is necessary to advert our minds to the respective duties of Courts of trial and Appellate Courts as clearly enunciated and settled by judicial pronouncements of the Supreme Court and followed by this Court in a long line of cases. For instance, Eso, JSC; had intoned in Omorogie v. Idugiemwanye (1985) 2 NWLR (pt.256) 41 at 56;
“The Court of Appeal is guided by rules; it is to review the case before it by what is usually referred to as rehearing. It is the Court of first instance that sees witnesses, sift evidence, evaluates the same and except it fails in its duty of utilizing the advantage of seeing and hearing these witnesses, the Court of Appeal abides by its findings and is not permitted to embark on a voyage of its own either of discovery or merely abstruseness.”

On the duty of trial judges in civil matters which the Petitioners complain that the learned judges of the Tribunal failed to do, the learned Law Lord in one of his landmark/expository judgments; Bello v. Eweka (1981) 1 SC 101 at 118-120, cited the locus classicus of A.R Mogaji & Ors v’ Madam Rabiatu Odofin & Anor (1978) 4 SC 91 at 94 where Per Fatayi-Williams, J.S.C. (as he then was) who relying on Aromire & Ors v. Awoyemi (1972) 1 ALL NLR 101, articulated this principle which is now of universal standard and applicability particularly in our judicial system; had this to say on what should constitute a judgment by a trial Court/Tribunal thus:-
“…Before a Judge whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale and that of the defendant on the other side and weigh them together.”
In the case at hand the learned counsel for the Respondents have rightly submitted and referred us to Onwudinjo v. Dimobi (2006) 1 NWLR (pt. 961) 318 Chime v. Ezea (2009) 2 NWLR (pt 1125) 63; Igbeke v. Emordi (2010) 11 NWLR (pt 1204) and Buhari v. INEC (supra); Woluchem v. Gudi (1981) 5 SC 297; that since the evidence of the witnesses was properly evaluated, the decision of the Tribunal stands until proved otherwise. This stance of the learned counsel is buttressed by the decision in Ezekwesili v. Agbapuonwu (2003) FWLR (pt.162) 2076 where Iguh JSC at 2052 paragraph B-D laconically stated the position of the law thus:
“… it cannot be disputed that the evaluation of evidence and ascription of probative value to such evidence are the primary functions of the trial court which saw, held and duly assessed the witnesses. Where as in the present case, a court of trial unquestionably evaluated the evidence and justifiably appraises the facts, what the Court of Appeal ought to do is to find out whether there is evidence on record from which the trial court arrived at its finding of facts, the Appellate court cannot interfere.”
The position taken by the eminent and emeritus judicial titan has been re-echoed recently, by their Lordships of the apex court in Omotayo v. C.S.A. (2010) 16 NWLR (pt.1218) 7 particularly pages at 23-24, paras C-G, inter alia:
“The function of assessment of credibility of witness is essential for the trial court and not that of the appellate court. Therefore, the attitude of an appellate court is to be slow to interfere with such decision of a trial court This is because the duty of appraising evidence given in a court is pre-eminently that of the trial Judge who saw and heard the witnesses and it is that court that has a right to ascribe values. A Court of Appeal may not interfere with the judgment simply on the ground that it would have come to a different conclusion on the facts as long as the judgment of the trial court is supported by evidence. When a trial court has adequately performed its primary role of evaluating and ascribing probative values to the evidence before it, the findings of fact made by it are entitled to respect by an Appellate court.
In other words, where the trial court clearly evaluated the evidence of the parties and justifiably appraised the facts before it as appears in the records, it is not the business of an appellate court to substitute its own views of the facts for those of the trial court”
In the appeal at hand even though I have had a re-appraisal of the evidence of the parties, I have come to the conclusion that the findings and conclusion of the learned Justices of the Tribunal after their painstaking, discrete and dispassionate evaluation of the totality of the evidence before them, rightly decided that the Petitioners/ Appellants did not prove their case in accordance with the requirements of the law. They had the singular opportunity of hearing and watching the demeanour of the witnesses and therefore were in a proper position to ascribe probative value to their testimonies. As an Appellate Court therefore since there is no evidence that the findings of the learned Justices of the tribunal or that they misapplied the law to proved facts or that they did not make good use of their advantage of watching and hearing the witnesses, I cannot interfere with the finding of facts as established by the Tribunal. This issue is also resolved in favour of the Respondents and against the Appellants.
This Appeal is therefore dismissed and the judgment of the Governorship/ Legislative Houses Election Tribunal Holden at Abakaliki, Ebonyi State of Nigeria delivered on Monday, the 24th day of October, 2011, Coram: Honourable Justices H.A. Olusiyi (Chairman), P.I. Imo Edemhe (Member) and B.M. Tukur (Member) where in the petition of Petitioners/Appellants was dismissed, is hereby affirmed. The return and declaration of Ikoro Ogbonna Kinsley of the Peoples Democratic Party as member representing Afikpo North West Constituency in the Ebonyi State House of Assembly, by the 3rd-5th Respondents, is hereby re-affirmed.
No order as to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother IGNATIUS IGWE AGUBE, JCA. I am in complete agreement with his copious reasoning and conclusion that the appeal be dismissed and the decision of the trial tribunal be affirmed.
No order as to costs.

ADZIRA GANA MSHELIA, J.C.A.: This appeal was dismissed on the 22nd day of December, 2011 and reasons were reserved.
I read before now the lead judgment of my learned brother Agube, JCA just delivered. I entirely agree with his reasoning and conclusion that the appeal lacks merit. I too dismiss the appeal and abide by the order made as to costs.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the full reasons for the lead judgment of my learned brother, Agube, JCA.
I agree with all his reasonings and conclusions. I adopt them as mine to also dismiss this appeal.
I abide by all the consequential orders of my brother.

ABUBAKAR ALKALI ABBA, J.C.A.: I participated in hearing this appeal and I am privilege and read the lead judgment of my learned brother Hon. Justice I. I. AGUBE and I agree with his decision and I abide by all the orders.
Appeal dismissed.

Appearances

S.A OKPORIE, ESQ.,For Appellant

AND

MAZI M.N. IGBO for the 1st Respondent
CHIEF S. OKORONKWO with him G.M. OKORIE ESQ., for the 2nd Respondent
CHIEF JOSHUA E. ALOBO for the 3rd to 5th Respondents.For Respondent

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