OMAR & ANOR v. INEC & ORS (2020)

OMAR & ANOR v. INEC & ORS

(2020)LCN/15376(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/J/EPT/NA/HR/BA/184/2020

RATIO

DUTY OF COURT: EVALUATION OF EVIDENCE

I said before that the evaluation of evidence and ascription of probative value to evidence is a matter primarily for the trial Court or Tribunal. See again CHIEF S. O. ADEDAYO AND ORS V PEOPLES DEOCRATICE PARTY AND ORS (2013) 17 NWLR (Pt. 1382) 1 AT 40. It is also trite that where a trial Court unquestionably evaluates the evidence and appraises the facts as in this appeal at hand, it is no business of the Appellate Court to substitute its own view with the view of the trial Court. See BALOGUN V. AGBOOLA (1974) 1 ALL NLR (Pt. 2) 66. It is only where the finding is perverse, i.e. not supported by evidence on record or based on wrong evaluation or not based on evidence led at all that this Court will intervene. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

EVALUATION OF EVIDENCE: DIFFERENCE BETWEEN ADMISSIBILITY OF DOCUMENTS AND THE PROBATIVE VALUE PLACED ON THEM

It is trite that evaluation of evidence called at the trial, the ascription of probative value to them and making primary findings to them are matters within the province of the Court of trial which has the singular advantage or preeminently placed of seeing and hearing the witnesses testify and watching their demeanor. See the case of BALOGUN & ORS V ALIMI AGBOOLA (1974) 1 ALL NLR (Pt. 2) 66, MILITARY GOVERNOR OF WESTERN STATES V AFOLABI LANIBE & ANOR (1974) 1 ALL NLE (Pt. 2) 179, MAIKUDI V MUSA (2004) ALL FWLR (Pt. 230) page 1096 at 1109, DATOEGOEM DAKAT V MUSA DASHE (1997) 12 NWLR (Pt. 531) 46, LASISI MORENIKEJI & ORS V LALAKE ADEGBOSI & ORS . (2003) 8 NWLR (Pt. 823) 612, HON. ESEME EYIBO V MR. DAN ABIA & ORS (2012) LPELR – 20607.

In the case of OKONKWO V OKONKWO (2004) 5 NWLR (Pt. 865) page 87 at page 118, Olagunju, JCA (of blessed memory) on factors in determining probative value of evidence held thus:
“In evaluation of Evidence, the fact that the relative weight put on the evidence of each, side was not expressly categorized or otherwise expressed by the trial Court does not imply that the evidence of the parties was not weighed. Weight of evidence is the value, credibility, quality as well as the probative value of the evidence. The five factors that are considered in determining the probative value of evidence are:
(a) Admissibility; (b) relevancy; (c) credibility; (d) conclusiveness and (e) probability of the evidence by which the weight of evidence of both parties is determined.”
See OKAMGBA OKAMGBA V IFEGWU URUM EKE (2009) 16 NWLR (Pt. 1166) 1, NELSON OLORUNNIMBE GBAFE V PRINCE FRANK GBAFE AND ORS (1996) LPELR – 1316, EDET OKON IKO V THE STATE (2001) 14 NWLR (Pt, 732) 195. Fabiyi, JSC in the case of ACTION CONGRESS OF NIGERIA V SULE LAMIDO & ORS (2012) LPELR – 7825 said thus:

“—— This is so as there is dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. Evidence has probative value if it tend to prove an issue.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

APPEAL: RELEVANCE OF A NOTICE OF PRELIMINARY OBJECTION

In plethora of cases by this Court, it has been decided that where a Respondent intend to challenge the competence of grounds of appeal, such contender should file a notice of preliminary objection and not by merely incorporating same in his brief of argument. That is to say that he should comply strictly with the provision of Order 10 Rule 1 of the Court of Appeal Rules. Failure of which will render the Preliminary Objection so raised vide the brief of argument incompetent. See the case ofMR. JOSEPH ADEBAYO ADEDOYIN V MR TAIYE ONIYIDE (2012) LPELR – 7954. Tijani Abdullahi, JCA said thus:
“Let me consider the Preliminary Objection raised by the Respondent before considering the substantive appeal if need be. On this Preliminary Objection my first port of call is Order 10 Rule 1:- says:
“A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal shall give the Appellant three clear days notice before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time” Rule (3) says
“If the Respondent fails to comply with this Rule, the Court may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.”
Now the provisions of the Rules of this Court pertaining to how a preliminary objection will be raised is explicitly provided in the said Rules quoted above. Needless to say such objections must be filed and the Respondent shall give the Appellant three clear days notice before the hearing. The question to be asked at this stage is can it be said that the Respondent has complied with the provisions of these Rules? This question straight away must be answered in the negative. That is to say that the Respondent absolutely failed to comply with the provisions of the said Rules. He only raised the objection in his brief without filing even a copy of the objection contrary to what the Rules prescribed. It is noteworthy that often, Respondents’ Counsel simply raises Preliminary Objections in the Respondents’ brief without filing a formal/separate Notice of Objection as directed by Order 10 Rule 1. The argument usually canvassed is that in so far as the Appellant is given at least 3 days notice of the objection, the same is okay to be raised in the Respondent’s brief. A hard look at the wordings of this Rule, I am of the considered view that such argument is wrong and completely devoid of any legal foundation. The aspect of the requirement to file the Notice of Objection in 20 copies is glossed over completely. No doubt, in law, it is the filing fee that breathes life into the processes filed, except where filing fees is waived, as in the case of official process from Government Departments. See the case of MR. IBIWOYE ANU AYODIJI AND ANOR VS SENATOR SIMEON SULE AJIBOLA & ORS an unreported decision of Court of Appeal Ilorin Division in EPT/CA/IL/SEN/9/2011 delivered on 14/12/2011 pages 10-11 where it was held:
“Of course, by law, it is the filing fees that vest legitimacy or validity on a Court process, except where such fees are waived as in the case of official process filed by government or department of government….. Since the alleged preliminary objection was …. Not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration by this Court. Thus, the preliminary objection raised by the 1st and 2nd Respondents in their brief of argument, without evidence of prior filing of the said notice is incompetent and cannot be relied upon to question the competence of the said ground of appeal by the Appellants. “See also the case of DR. ABDULRASHEED ALANAMU V YAKUB AGBO AND 2 ORS, Appeal NO. CA/IL/26/2011 delivered on 26th day of April, 2012.”
See also HARUNA V BALA AND ORS (2019) LPELR – 49097 where this Court said per MUKTHTAR JCA as follows:
“I have not lost sight of the Preliminary Objection raised and argued by the 1st Respondent, which was incorporated in the 1st Respondent’s brief. I shall curiously remark that there is nothing irregular in the objection as filed and argued by the 1st Respondent as it has not caused any violence to the purport of Order 10 Rule 1 of the Court of Appeal Rules 2016 provided the Respondent intending to rely upon it, has given the Appellant three clear days notice thereof before the hearing, setting out particularly the grounds of the objection as well as filing twenty copies of such notice with the Registrar within the same time. It is not in doubt that Order 10 of the Rules is mandatory and must be complied with by the Respondent before argument on the grounds for the preliminary objection can be incorporated in the Respondent’s brief of argument. The required notice of the preliminary objection served within the required period lays the foundation in law in respect of the arguments in support of the ground of objection in the Respondent brief see NSIRIM V NSIRIM”
See also MATAB OIL AND GAS LTD V FUNDQUEST FINANCIAL SERVICE LTD AND ANOR (2020) LPELR – 49561. In ALIMI AKANBI DADA V CHIEF JONATHAN DOSUNMU (2006) LPELR – 909 (SC) where ONNOGHEN JSC (former Chief Justice of Nigeria said. Hear his Lordship:
“To begin with, the procedure for raising a preliminary objection to the grounds of appeal in the Court of Appeal has been laid down by this Court in the case of NSIRIM V NSIRIM (1990) 3 NWLR (Pt. 138) 285 at 296 and I do not intend to restate them here except to say that for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the Court, the Respondent must first and foremost file a motion on notice in the Court stating the ground on which the objection is based so as to give notice to the Appellant, otherwise, the Appellant would be taken by surprise. The Respondent subsequently follows it up with the filing of the Respondent’s brief in which arguments on the objection is proffered”. PER MUDASHIRU NASIRU ONIYANGI, J.C.A.

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Between

1. ALHAJI TATA OMAR 2. ALL PROGRESSIVES CONGRESS (APC) APPELANT(S)

And

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) 2. MUHAMMAD AUWAL JATAU 3. PEOPLES DEMOCRATIC PARTY (PDP) RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): At the General Election into the National Assembly and in particular the House of Representative for Zaki Federal Constituency of Bauchi State held on 23rd day of February, 2019, the Appellant in this Court contested under the platform of the All Progressive Congress (APC).

The 2nd Respondent in this Appeal also contested the said election and for the same seat under the banner of the Peoples Democratic Party (PDP). There was a Supplementary Election as ordered by the Independent National Electoral Commission on 9th March, 2019. In the end, the 1st Respondent (INEC) declared the Appellant the winner of the said election. The 2nd Respondent was not happy with the said declaration hence filed a petition before the then National/State Houses of Assembly Election Tribunal for Bauchi State, challenging the outcome of the election and the return of the Appellant.

The petition went through a full trial. In the end, the said trial Tribunal in his considered judgment handed down on 20th day of September, 2019, nullified the said election and ordered the 1st Respondent to conduct a rerun election within 90 days for the following polling units in Zaki Federal Constituency for all the candidates at the said election challenged. (See pages 359 – 360 of the Record of Appeal)
(1) Dugumari Near Village Head polling unit code 009 in Sakwe Ward, Zaki Federal Constituency, Bauchi State;
(2) Murmur Kofar Fada, polling unit code No. 002, in Murmur North Ward, Zaki Federal Constituency, Bauchi State; and
(3) Daladagum polling unit, code No. 019 in Mainako Ward; Zaki Federal Constituency, Bauchi State.

The Appellant challenged the judgment of the Trial Tribunal in this Court (Court of Appeal Jos Division) on six grounds. In the considered judgment of this Court delivered on the 14th November, 2019 it was concluded as follows (See pages 386-387 of the Record of Appeal)
“In effect the appeal fails and is here dismissed while the decision of the Trial Tribunal upholding the results of the Zaki Federal Constituency election in Sandigalau Primary School I and II polling unit and ordering a rerun in Murmur Kofar Fada, Dugumari and Dalagadum polling units in the same Federal Constituency is affirmed. Parties shall bear their cost.”

In compliance with the foregoing Order, the 1st Respondent in this appeal (Independent National Electoral Commission INEC) conducted a re-run election in the aforementioned polling units on the 25th day of February, 2020 and declared the result of the rerun election wherein the 2nd Respondent in this appeal was declared winner on the same date 25th February, 2020 having polled a total of 15, 405 (Fifteen Thousand, Four Hundred and Five) votes while the Appellant polled 15, 307 (Fifteen Thousand, Three Hundred and Seven) votes.

Pained by the outcome of the rerun election, the Appellant filed petition No. EPT/NASS/BA/02/2020 before another constituted National Assembly Election Petition Tribunal Bauchi on the 13th day of February, 2020 challenging the return of the 2nd Respondent on the following grounds (See paragraph 23 of the petition on page 5 of the Record of Appeal.)
(1) That the election in the polling units of Murmur, Kofar Fada P.U. Code 002 (Murmur North R. A. 07) and Daladagun, Near Village Head P.U. Code 019 (Mainako R.A. II) was invalid by reason of corrupt practices or non- compliance with the provision of the Electoral Act, 2010 (as amended)
(2) The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.
(3) The 2nd Respondent was at the time of the rerun election not qualified to contest the Election.

Based on the foregoing three grounds, the petitioner before the Trial Tribunal sought for the following reliefs in paragraph 43 of the petition thus:
“43. WHEREOF, the petitioners pray jointly and severally against the Respondents as follows:
(a) That it may be declared/determined that the 2nd Respondent was not duly elected by a majority of lawful votes cast at the House of Representatives Election for Zaki Federal Constituency held 23rd February, 2019, 9th March, 2019 and concluded with a rerun election of 25th January, 2020 and therefore his declaration and return by the 1st Respondent as the elected member to represent Zaki Federal Constituency in the House of Representatives is null, void and of no effect.
(b) That it may be determined that the 1st Petitioner was duly and validly elected and ought to be returned as the elected member of House of Representatives for Zaki Federal Constituency in the election held 23rd February, 2019, 9th March, 2019 and concluded with a rerun election of 25th January, 2020.
(c) A declaration that the 1st Petitioner satisfied the law and constitutional requirements for the said election and return.
(d) An Order directing the 1st Respondent to issue a Certificate of Return to the 1st Petitioner as the duly elected member of House of Representatives for Zaki Federal Constituency of Bauchi State.

At the hearing of the petition, after the exchange of pleadings which commenced on 30th day of April, 2020 and concluded on 7th May, 2020 the petitioner (Appellant) called 8 witnesses. The 2nd Respondent called two witnesses while the 1st and 3rd Respondents did not call any witness but rested their respective case on the evidence adduced by the petitioner’s witnesses and evidence elicited during cross examination of Appellant’s witnesses.

The Tribunal in its considered judgment of 122 pages, delivered on the 28th day of July, 2020 concluded as follows (Hear the Tribunal) (See pages 691-813 and in particular pages 812-813)
“Hence the final verdict of this Tribunal is that this Petition lacks merit.

We hereby dismiss same in its entirety. Accordingly we hereby order as follows:
That the 2nd Respondent was at the time of the rerun election on 25/1/2020 duly qualified to contest the election and rightly, and lawfully contested same.
That the petitioners woefully failed to prove their claim that the rerun in the polling units of Murmur, Kofar Fada and Daladagun, near village Head was invalid by reason of corrupt or non compliance with the provisions of the Electoral Act, 2010 (as amended)
That we affirm the election and return of the 2nd Respondent (MOHAMMED AUWAL JATAU) as the winner of the election into the office of member House of Representatives for Zaki Federal Constituency of Bauchi State, having scored a total of 15,444 votes instead of 15,405 votes erroneously declared by the 1st Respondent as against the 1st Petitioners total score of 15, 337 votes instead of 15, 307 votes wrongly declared by INEC.
Petition is hereby dismissed.”

Miffed by the outcome of the trial of his petition, the Petitioner before the trial Tribunal appealed to this Court vide his Notice of Appeal dated and filed on 14th August, 2020. Paragraph 3 of the said Notice of Appeal harbours the 9 ground of appeal. In paragraph 4 the reliefs sought are itemized as follows: (See page 821 of the Record)
RELIEFS SOUGHT:
(1) To allow the appeal
(2) To set aside the judgment of the Trial Tribunal delivered on the 28th July, 2020 in petition number EPT/NASS/BA/02/2020.
(3) AN ORDER GRANTING THE RELIEFS sought by the Appellants as Petitioners at the Honourable Trial tribunal in petition No. EPT/NASS/BA/02/2020.
(4) For such further and/or other orders as the Court of Appeal may deem fit to make in favour of the Appellants.

The Record of Appeal was transmitted on 22nd August, 2020 and consequent upon which respective party filed and exchanged their brief of argument.

BRIEFS OF ARGUMENT
APPELLANTS
The appellant’s brief of argument is dated and filed on 28th August, 2020. Not that alone, he also filed reply brief to both the 1st, 2nd and 3rd Respondents’ brief of argument. On 5th September, 2020, 8th September, 2020 and 7th September, 2020 respectively.

In the adopted brief of the Appellant, the following issues are distilled for the determination of this appeal.
(i) Whether the trial Tribunal was right in its decision that the Appellants ground one(1) of the petition was in breach of Section 138 (1) (b) of the Electoral Act, 2010 (as amended) and therefore defective and incompetent, relying on the decision in GOYOL V INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218 at 229. (Ground 1 of the Ground of Appeal)
(ii) Whether the Honourable Tribunal was right when it formulated/adoption issue two (2) and resolved same against the Appellant based on ground one (1) of the petition having held the said ground one (1) as defective and incompetent (Distilled from grounds 2 and 3 of Notice of Appeal)
(iii) Whether the failure and refusal of the trial Tribunal to accept the evidence of PW5 and PW8 holding their evidence as hearsay relying on the decision in TERVER KAKIH VS PDP AND ORS (2014) 15 NWLR (Pt. 1430) P. 374 at 390 did not occasion miscarriage of Justice to the Appellant (Distilled from ground 5 of the Notice of Appeal)
(iv) Whether the trial Tribunal was not in error and occasioned miscarriage of justice to the Appellant in its decision that the only evidence acceptable as proof of improper or illegal accreditation is for the petitioners (Appellants herein) to establish that the number of accredited voters in each of the two polling units exceed the number of registered voters, and that the issue of ticking heavily relied upon by the petitioners is not known to the Electoral Act, INEC Guidelines, Regulations or Manuals (Distilled from ground 6 of the Notice of Appeal.
(v) Whether having regard to the pleadings and the entire evidence led by the parties at the trial Tribunal, the Appellants have proved the petition on the requisite standard of proof and ought to have judgment in their favour. (Distilled from grounds 4, 7, 8 and 9 of the Notice of Appeal)

1ST RESPONDENT
The 1st Respondent’s brief of argument is dated and filed on the 2nd September, 2020. In the said adopted brief, the 1st Respondent formulated the following two issues for determination. Thus:
(1) Whether the learned Tribunal was not correct when it found that for proof of improper or illegal accreditation, the issue of ticking heavily relied upon by the petitioners is not known to the Electoral Act, INEC Guidelines, Regulations, or Manuals.
(2) Whether the learned Tribunal was not correct when having considered the totality of the Petitioners’ case it found that the petition lacks merit and dismissed same in its entirety.

2ND RESPONDENT
On behalf of the 2nd Respondent, the brief of argument filed on 4th day of September was adopted. Therein, the 2nd Respondent willfully adopted the issues formulated by the Petitioner for the determination of the appeal, thus:
(1) Whether the trial Tribunal was right in its decision that the ground one (1) of the petition was in breach of Section 138 (1) (b) of the Electoral Act, 2010 (as amended) and therefore defective and incompetent, relying on the decision in GOYOL V INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218 at 229? (Distilled from ground 1)
(2) Whether the Honourable Tribunal was right when it formulated/adopted issue (2) and resolved same against the Appellants based on ground one (1) of the petition having held the said ground one (1) as defective and incompetent? (distilled from grounds 2 and 3 of the Notice of Appeal.
(3) Whether the lower Tribunal was right in refusing to accord probative value to the oral testimonies of PW 5 and PW8 on the grounds of lacks of credibility? (Distilled from ground 5 of the Notice of Appeal)
(4) Did the Appellant by way of documentary and oral evidence established the allegation of over voting in the two polling units of Murmur Kofar Fada and Daladagun Near Village Head a to justify (sic) the setting aside of the conclusion of the lower Tribunal on this core? (Distill from ground 6 of the Notice of Appeal.)
(5) Whether in the light of the quality and quantity of evidence advanced before the lower Tribunal by the Appellants in proof of their case, the evidential presumption of regularity in favour of the 2nd Respondent’s declaration as the winner of the rerun election of the 25 of January 20020 (sic) for Zaki Federal Constituency have been reburted? (Distilled from grounds 4 7, 8 and 9 of the Notice of Appeal)

3RD RESPONDENT
The 3rd Respondent submitted the following two issues in his adopted brief of argument. thus:
(a) Whether the trial Tribunal was right in its decision that the Appellant’s ground one (1) of the petition was in breach of Section 138(1) (b) of the Electoral Act, 2010 (as amended) and therefore defective and incompetent.
(b) Whether the Honourable Tribunal was right in dismissing the Appellants’ petition at the lower Tribunal for lacking in merit.

Before deciding which of the party’s issues would be adopted for the determination of this appeal, I am of the view that the determination of the preliminary objection raised by the 2nd Respondent in his brief of argument dated and filed on the 4th day of September has to be determined and thereafter the main appeal.

2ND RESPONDENT’S NOTICE OF PRELIMINARY OBJECTION
The 2nd Respondent at page 2 of his adopted brief of argument objected to grounds 6, 7, 8 and 9 of the Appellant’s Notice of Appeal.

His contention therein is that the importance of grounds of appeal cannot be over emphasized. He described it as the substratum, baseline and foundation upon which an appeal is erected and that no appeal can stand without a proper and valid notice of appeal to sustain it. He relied on the case of C.C.B. PLC VS EKPERI (2007) 3 NWLR (Pt. 1022) 495 at 511. Further to this, he argued that where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated in such manner as not to leave any doubt. He cited Order 7 Rules 2(2) of the Court of Appeal Rules 2016. Also that ground of appeal must specifically attack the finding or a decision of a trial Court, so a ground of appeal cannot be valid and competent if it is general, vague, argumentative and imprecise. It must therefore disclose a reasonable complaint against the ratio decidendi as opposed to obiter dictum in the decision appealed against. He relied on the case of JUDE OGBONNA V AGHAEBUNAM EZEWUZIE (2013) LPELR – 22208. He submitted that grounds 6, 7, 8 and 9 of the Appellant’s notice of appeal, reveal a blatant violation of statutory and judicial provisions.

On ground six (6) he argued that it is not an attack on the ratio decidendi of the judgment rather it is an attack on mere obita dictum. To buttress this, he reproduced the finding and conclusion of the trial tribunal contained in pages 796-797. He relied on the case of SAVANAH BANK OF NIGERIA LTD VS P.A.S.T.A. LTD (1987) 1 SC. 198, at 278-279.

On grounds 7, 8 and 9 which alleges misdirection and error of law he argued that the Appellant failed to clearly state the nature of the misdirection and error of law and hence the grounds are vague, general argumentative and imprecise and therefore incompetent. He referred to the case of JUDE OGBONNA V AGHAEBUNAM EZEWUZIE (2013) LPELR – 22208. He therefore urged the Court to strike out grounds 6, 7, 8 and 9 of the Appellants’ Notice of Appeal for being incompetent.

In opposing the Preliminary Objection, the Appellant’s argument in opposition which can be found in pages 2 – 6 of the Appellant’s reply brief of argument dated and filed on 8th day of September, 2020 is firstly that the preliminary objection was argued in the brief without filing a Notice of Preliminary Objection which is a clear breach of Order 10 Rule 1 of the Court of Appeal Rules, 2016. He submitted that the Preliminary Objection is incompetent. He relied on the case of HARUNA V BALA AND OTHERS (2019) LPELR – 49097. He added that it is trite that Election matters and appeals are sui generis hence, it is mandatory to comply with all provisions of the law relating to practice and procedure. He relied on BUHARI V INEC AND ORS (2008) LPELR– 814, ABUBAKAR AND ORS V YAR’ADUA AND ORD (2008) 19 NWLR (Pt. 1120) 1.

On the contention of the 2nd Respondent on grounds 6, 7, 8 and 9, he argued further that preliminary objections are filed against the hearing of an appeal and so when it succeeds, the appeal terminates in limine. He argued that the 2nd Respondent conceded to the fact that grounds 1, 2, 3, 4, and 5 of the Notice of Appeal are valid and competent. That therefore suggest that the preliminary objection will not terminate the appeal in limine. In such circumstance a preliminary objection should not be filed but only a Notice of Motion to strike out the grounds of appeal under attack, he relied on the case of MATAB OIL AND GAS LTD V FUNDQUEST FINANCIAL SERV. LTD AND ANOR (2020) LPELR – 49561.

Further he argued in the alternative, in the event that the Court is not satisfy with his foregoing argument that the complaint against ground six is not on the “Obiter dictum” but “ratio decidendi”. He added that the conclusion reached by the trial Tribunal at page 796 of the Record of Appeal is one of several ratio decidendi and which are relied upon by the tribunal in dismissing the Appellant’s petition. The observation of the Tribunal constitutes ratio decidendi. He relied on the following cases ONI V FAYEMI AND ORS (2007) LPELR – 8700, OKON V THE AKWA IBOM SECTOR COMMANDER FRSC AND ANR (2017) LPELR – 43648. He contended that grounds 7, 8 and 9 of the Notice of Appeal have the requisite particulars. He referred to pages 819-821 of the Record of Appeal. He urge the Court to hold that the preliminary objection is frivolous, unmeritorious and diversionary and that same is liable to be dismissed.

I have carefully read and considered the contention of learned Counsel on both side i.e. the learned Counsel representing the 2nd Respondent and that of the Appellant. It is clear from the contention of the learned Counsel representing the Appellant that he challenged the competence of the objection by the 2nd Respondent’s Counsel on the ground of non compliance with Order 10 Rules 1 of the Court of Appeal Rules, 2016. His contention is that the Appellant failed to file a separate notice of preliminary of objection as prescribed under Order 10 Rule 1 of the Rules of this Court 2016. For purposes of clear understanding I herein under reproduce Order 10 Rule 1 of the Court of Appeal Rules, 2016. Thus:
Order 10 Rule 1
“A Respondent intending to rely upon a preliminary objection to the hearing of an appeal shall give the Appellant three clear days notice there off before the hearing setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time.”
My understanding of the foregoing provision is that any Respondent who intends to raise a preliminary objection must give notice of such preliminary objection separately in three clear days before the date fixed for the hearing of the appeal. Failure to comply with this provision having regard to the word “shall” used in the context which make the filing of a notice mandatory would render such preliminary objection raised without notice but merely incorporated in the brief of argument incompetent. I have no doubt in my mind in agreeing with the argument of the learned Counsel representing the Appellant on this point.
The 2nd Respondent in his bid of challenging the competence of grounds 6, 7, 8 and 9 of the grounds of appeal merely incorporated his contention in his (2nd Respondent’s) brief of argument without filing any notice to that effect as prescribed under Order 10 Rule 1 of the Court of Appeal Rules, 2016. In plethora of cases by this Court, it has been decided that where a Respondent intend to challenge the competence of grounds of appeal, such contender should file a notice of preliminary objection and not by merely incorporating same in his brief of argument. That is to say that he should comply strictly with the provision of Order 10 Rule 1 of the Court of Appeal Rules. Failure of which will render the Preliminary Objection so raised vide the brief of argument incompetent. See the case ofMR. JOSEPH ADEBAYO ADEDOYIN V MR TAIYE ONIYIDE (2012) LPELR – 7954. Tijani Abdullahi, JCA said thus:
“Let me consider the Preliminary Objection raised by the Respondent before considering the substantive appeal if need be. On this Preliminary Objection my first port of call is Order 10 Rule 1:- says:
“A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal shall give the Appellant three clear days notice before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registry within the same time” Rule (3) says
“If the Respondent fails to comply with this Rule, the Court may adjourn the hearing thereof at the cost of the Respondent or may make such other order as it thinks fit.”
Now the provisions of the Rules of this Court pertaining to how a preliminary objection will be raised is explicitly provided in the said Rules quoted above. Needless to say such objections must be filed and the Respondent shall give the Appellant three clear days notice before the hearing. The question to be asked at this stage is can it be said that the Respondent has complied with the provisions of these Rules? This question straight away must be answered in the negative. That is to say that the Respondent absolutely failed to comply with the provisions of the said Rules. He only raised the objection in his brief without filing even a copy of the objection contrary to what the Rules prescribed. It is noteworthy that often, Respondents’ Counsel simply raises Preliminary Objections in the Respondents’ brief without filing a formal/separate Notice of Objection as directed by Order 10 Rule 1. The argument usually canvassed is that in so far as the Appellant is given at least 3 days notice of the objection, the same is okay to be raised in the Respondent’s brief. A hard look at the wordings of this Rule, I am of the considered view that such argument is wrong and completely devoid of any legal foundation. The aspect of the requirement to file the Notice of Objection in 20 copies is glossed over completely. No doubt, in law, it is the filing fee that breathes life into the processes filed, except where filing fees is waived, as in the case of official process from Government Departments. See the case of MR. IBIWOYE ANU AYODIJI AND ANOR VS SENATOR SIMEON SULE AJIBOLA & ORS an unreported decision of Court of Appeal Ilorin Division in EPT/CA/IL/SEN/9/2011 delivered on 14/12/2011 pages 10-11 where it was held:
“Of course, by law, it is the filing fees that vest legitimacy or validity on a Court process, except where such fees are waived as in the case of official process filed by government or department of government….. Since the alleged preliminary objection was …. Not filed separately, I do not therefore think their said objection is competent, to warrant any due consideration by this Court. Thus, the preliminary objection raised by the 1st and 2nd Respondents in their brief of argument, without evidence of prior filing of the said notice is incompetent and cannot be relied upon to question the competence of the said ground of appeal by the Appellants. “See also the case of DR. ABDULRASHEED ALANAMU V YAKUB AGBO AND 2 ORS, Appeal NO. CA/IL/26/2011 delivered on 26th day of April, 2012.”
See also HARUNA V BALA AND ORS (2019) LPELR – 49097 where this Court said per MUKTHTAR JCA as follows:
“I have not lost sight of the Preliminary Objection raised and argued by the 1st Respondent, which was incorporated in the 1st Respondent’s brief. I shall curiously remark that there is nothing irregular in the objection as filed and argued by the 1st Respondent as it has not caused any violence to the purport of Order 10 Rule 1 of the Court of Appeal Rules 2016 provided the Respondent intending to rely upon it, has given the Appellant three clear days notice thereof before the hearing, setting out particularly the grounds of the objection as well as filing twenty copies of such notice with the Registrar within the same time. It is not in doubt that Order 10 of the Rules is mandatory and must be complied with by the Respondent before argument on the grounds for the preliminary objection can be incorporated in the Respondent’s brief of argument. The required notice of the preliminary objection served within the required period lays the foundation in law in respect of the arguments in support of the ground of objection in the Respondent brief see NSIRIM V NSIRIM”
See also MATAB OIL AND GAS LTD V FUNDQUEST FINANCIAL SERVICE LTD AND ANOR (2020) LPELR – 49561. In ALIMI AKANBI DADA V CHIEF JONATHAN DOSUNMU (2006) LPELR – 909 (SC) where ONNOGHEN JSC (former Chief Justice of Nigeria said. Hear his Lordship:
“To begin with, the procedure for raising a preliminary objection to the grounds of appeal in the Court of Appeal has been laid down by this Court in the case of NSIRIM V NSIRIM (1990) 3 NWLR (Pt. 138) 285 at 296 and I do not intend to restate them here except to say that for an objection to the competence of ground or grounds of appeal to be validly raised and thereby worthy of consideration by the Court, the Respondent must first and foremost file a motion on notice in the Court stating the ground on which the objection is based so as to give notice to the Appellant, otherwise, the Appellant would be taken by surprise. The Respondent subsequently follows it up with the filing of the Respondent’s brief in which arguments on the objection is proffered”
In view of all the foregoing, I have no hesitation in my mind in agreeing with the submission of the learned Counsel to the Appellant that the 2nd Respondent having not filed any formal Notice of Preliminary Objection but merely incorporated the argument in his brief of argument renders the Preliminary Objection in this case incompetent liable to be struck out. Having come to this conclusion, the need to consider whether or not the ground of appeal is founded on the Ratio Decidendi or obiter dictum of the judgment in issue becomes otiose. The objection by the Appellant to the competence of the Preliminary Objection by the 2nd Respondent is sustained. The said objection is discountenanced and struck out.

I will now proceed to consider the main appeal. I have somewhere before now reproduced the respective issues presented by respective Counsel in this appeal. Upon my careful reading of all the issues, it is my view that adopting the issues formulated by the Appellant will not only serve the interest of the Appellant but also provide answer to the questions posed in the issues formulated by the 1st and 3rd Respondents respectively. The 2nd Respondent having adopted the issues formulated by the Appellants.

ISSUE ONE
“Whether the trial Tribunal was right in its decision that the Appellants ground one(1) of the petition was in breach of Section 138 (1) (b) of the Electoral Act, 2010 (as amended) and therefore defective and incompetent, relying on the decision in GOYOL V INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218 at 229. (Ground 1 of the Ground of Appeal)

On behalf of the Appellant it is argued that the trial Tribunal erroneously applied the decision in GOYOL V INEC (No. 2) (supra) which is quite distinguishable with the Appellants’ petition where the Court held that ground one (1) of the petition is in breach of Section 138 (1) (b) of the Electoral Act, 2010 (as amended). He argued that the trial Tribunal was in error when it held that the said ground is defective and incompetent for breach of Section 138 (1) (b) of the Electoral Act, 2010 (as amended). He submitted that Section 138 (1) (b) provides that an election may be questioned on the ground:
(b) That the election was invalid by reason of corrupt practice or non compliance with the provision of this Act.

He added that it has been held that the use of ‘”OR” in a ground of Election Petition is appropriate as it connotes an alternative or an option. While the use of “AND” is a fundamental breach. He referred to the case of OKE VS MIMIKO (2013) LPELR – 21368 (SC), IBRAHIM V SHAGARI AND ORS (1983) LPELR – 1412 (SC), ABUBAKAR V ALI AND ORS (2015) LPELR – 40359 and STEPHEN AND ANOR VS MORO AND ORS (2019) LPELR – 48752. He submitted that the Tribunal on this issue is erroneous and thus cannot stand the test of the existent position of law because of the following reasons.
(i) The Appellants’ ground one (1) of the petition is valid competent and in line with S. 138 (1) (b) of the Electoral Act, 2010 (as amended) and it is not contrary to the decision in GOYOL V INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218 at 229.
(ii) The Appellant employed corrupt practices or non compliance with the provision of the Electoral Act in ground one (1) of the petition disjunctively and not conjunctively.
(iii) The ground couched in GOYOL V INEC (No. 2) (2012) 11 NWLR (Pt, 1311) 218 at 229 was “The 1st petitioner state that the election of the 3rd Respondent was marred by corrupt practices and non compliance with the provision of the Electoral Act 2010, as amended” which is clearly distinguishable with the Appellants’ ground of the petition resulting in this appeal.

He added that the facts and circumstances of the said case are not in tandem with the present case. He argued that the Supreme Court has reiterated in chains of decided authorities, on the pertinence of ensuring cases should not be cited willingly in subsequent cases that are not similar or not same footing. The fact and circumstances of the case must be similar for it to apply as a precedent. He rely on the case of ADEGOKE MOTORS LTD V ADESANYA (1989) 3 NWLR (Pt. 109) 250 at 275 para. B-E, USMAN & ANOR V JIBRIN & OR (2019) LPELR -48792.

He urged the Court to hold that the lower Tribunal erroneously applied the decision in GOYOL V INEC ((No. 2) (Supra) which is quite distinguishable with the Appellants’ petition resulting in this appeal. Thus ground one (1) of the petition is in line with the law, valid and distinguishable from argument of the Respondents and the decision of the trial Tribunal on this issue.

The 1st Respondent did not react to this issue one on the competence or otherwise of ground one of the petition vis-a-vis the finding of the trial Tribunal. That being as it may, I will proceed to consider the reaction of the 2nd Respondent on this issue.

The 2nd Respondent’s contention is that Section 138 of the Electoral Act, 2010 (as amended) has been held to constitute the bed rock of any election petition and a petitioner seeking to rely on any of the ground must insure (sic) that such ground is in tandem not only with established judicial principles but with the facts and reliefs sought otherwise, the said ground will be inchoate, incompetent and be liable to be struck out. He relied on the following cases: GOYOL AND ANOR V INEC AND ORS (2011) LPELR – 9235 (CA), HON. TIMOTHY SIMON GOLU AND 1 ANOR V HON. YUSUF ADAMU GAGDI AND 2 ORS APPEAL NO CA/J/EPT/PL/NAHR/384/2019 delivered on 4th day of November, 2019 (Unreported).

He argued further that it has been judicially settled that the ground contained in Section 138(1) (b) of the Electoral Act which constitutes a mixture of “non-compliance” with “Corrupt practices” must be treated disjunctively in the light of the use of the word “Or’ to connect the phrases, “Non compliance and corrupt practices”. He added that the Appellant lumped together his complaint on corrupt practices or non compliance as one undermining the word “Or” as used by the draftsman in the said Section 138(1) (b) of the Electoral Act, 2010. He argued that the fact of both non compliance and corrupt practices were also lumped together. He referred to pages 6-13 of the Record. He relied on the case of HON. TIMOTHY SIMON GOLU AND 1 ANOR V HON. YUSUF ADAMU GAGDI AND 2 ORS (supra).

He submitted that based on the principles of law established in the foregoing appeal, the tribunal was on a firm ground and in deference to the principle of “stare decisis et no quieta movere” when it held ground one of the Appellant in the petition as incompetent. Therefore he added that avail the case of GOYOL AND V INEC (supra) does not avail the Appellant and so also the case USMAN AND ANOR V JIBRIN AND ORS (2019) LPELR – 48792.

He urged the Court to resolve issue one in favour of the 2nd Respondent.
For the 3rd Respondent, his position is not different from the point of view of the 2nd Respondent on the provision of Section 138(1) (b) of the Electoral Act, 2010 (as amended). In specific terms, the 3rd Respondent submitted that the said ground one (1) in the Appellant’s petition before the Trial Tribunal is not in compliance with the provision of Section 138 (1) (b) of the Electoral Act, 2010 (as amended). He added that the joinder of grounds as done by the Appellants in their petition in ground one (1) is incorrect and that the position of the lower Court was right.

In the light of the foregoing, the question I consider pertinent is whether or not complaints of corrupt practices and non compliance under Section 138 (1) (b) can be lumped together in one ground of a petition. For the purpose of this question, it is ideal to reproduce Section 138 (1) (b) of the Electoral Act, 2010 (as amended). It goes thus:
Section 138 (1) (b)
“(1) An Election may be questioned on any of the following grounds, that is to say:
(b) that the election was invalid by reason of corrupt practices or non compliance with the provision of the Act;”
The question here simply is whether complaints under Section 138 (1) (b) can be lumped together in a ground of a petition. This Court has handed down in a chain pronouncement to the effect that a petitioner is at liberty to register his complaint against the conduct of an Election pursuant to Section 138(1) (b) of the Electoral Act but with the caveat that in registering its complaint, he should do so by separate complaint on each of the sub heads. That is to say that a petitioner should not lump or encapsulate both complaints under corrupt practices and or non compliance in one ground.

But a petitioner is entirely free to register complaints under the two headings disjunctively and not conjunctively. That is to say that a complaint of corrupt practice should form a ground while that of non compliance should also form a separate ground. Each of the complaint should be distinct and separate. To each ground their facts also should be separately and distinctively stated and not lumped together. In the appeal at hand, ground one of the petition before the trial Court is as follows (See page 5 part “C” paragraph 23(1) of the petition) thus:
“C” “GROUNDS OF THE PETITION
23 The petitioners state that the grounds upon which this petition is based are as follows:
(1). That the election in the polling units of Murmur, Kofar Fada P.U. Code 002 (Murmur North R. A. 07) and Daladagun, Near village Head P.U. Code 019 (Mainako R.A. II) was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended).”
(Underlined is mine)
From the foregoing, it is as clear as crystal waters that the Appellants’ ground one houses his complaint of non compliance and corrupt practices. Not this alone, the two also have their fact stated together. (See page 6 part “C” paragraph 24 of the Record) thus:
“D” “FACTS UPON WHICH THE GROUNDS ARE BASED”
“GROUND 1”
“24. FACTS IN SUPPORT OF THE CONTENTION THAT THE ELECTION IN THE POLLING UNITS OF MURMUR, KOFAR FADA P.U. CODE 002 (MURMUR NORTH R. A. 07) AND DALADAGUN, NEAR VILLAGE HEAD P.U. CODE 019 (MAINAKO R.A. II) WAS INVALID BY REASON OF CORRUPT PRACTICES OR NON COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT 2020 (AS AMENDED)”
It is again clear from the foregoing that not only the two complaints of the Appellant/petitioner were put together, the fact in support of the ground are also in once compartment. The foregoing act of the petitioners informed the finding of the Tribunal when it said thus:
“The joinder of both grounds by the petitioner is a fundamental breach of Section 138 (1) (b) of the Electoral Act. The Respondents are therefore right in their complaint regarding ground 1 of the petition. Hence, their position that this ground is incompetent cannot be faulted.”
I indicated before now that the Court has taken the position that the complaints of corrupt practices and or non compliance cannot be lumped together under one ground of appeal. That position has not changed. A case in mind is the case of HON. TIMOTHY SIMON GOLU AND 1 OR V HON. YUSUF ADAMU GAGDI AND 2 ORS APPEAL NO CA/J/EPT/PL/NAHR/384/2019 (unreported) delivered on 4th day of November, 2019. Where the Court determined as follows: Permit me to quote extensively. Hear ONYEMENAM JCA:-
“I am therefore of the strong view that a petitioner relying on the ground that Election was invalid as a result of corrupt practices and also on the ground that the election was invalid as a result of non compliance with the provision of the Electoral Act requires separate facts to sustain each sub-ground. Most importantly, each ground of the said Section 138 (1) (b) must be relied upon separately. A petition is incurably defective and incompetent where the two disjunctive grounds are lumped together as one ground. This is more so as lumping the two grounds render the petition vague, generic and nebulous:….
The Appellant having joined the two disjunctive grounds in Section 138 (1) (b) of Electoral Act, the tribunal was right in striking out the sole ground of the petition for being defective in which case the Appellant had no ground to sustain the petition…”
See also the case of ABUBAKAR V ALI & OR (2015) LPELR – 40359, P.D.P V ALI & ORS (2015) LPELR – 40370.
I dissociate myself from the notion of the learned Counsel representing the Appellant of the Ratio decidendi in the following case in that his notion is nothing but that of misconception or lack of understanding of the finding of the Court i.e. in GOYOL AND ANOR V INEC & ORS (2011) LPELR – 9235 and USMAN & ANOR V JIBRIN & ORS (2019) LPELR – 48792. In that in the former case the Court found as follows:
“…. Once an election is questioned on the basis of invalidity, it can be predicated on corrupt practices or non compliance, the use of “or” connotes alternative or an option. Consequently, both corrupt practices and non compliance should not be joined together as one ground”
(Underline is mine)
Equally in the later case the Court also found as follows:
“…What is important is for the petitioner to set out separately and distinctively the particulars in support of each complaint and prove each allegation as required by law.”
The foregoing pronouncements, in my humble view supports the finding of the Trial Tribunal that the two sub heads cannot be married together under one ground. By the provision of Section 138 (1) (b) the two sub-heads are co-joined twin. But when registering complaints under that provision, the co-joined twin has to be separated and made to constitute independent and distinct ground of appeal.
For all the foregoing, I find no hesitation in agreeing with the finding of the trial Tribunal that ground one of the petition is in breach of Section 138 (1) (b) of the Electoral Act, 2010 (as amended) and therefore defective and incompetent.
Accordingly, I resolve this issue against the Appellant.

ISSUE 2
Whether the Honourable Tribunal was right when it formulated/adopted issue two (2) and resolved same against the Appellant based on ground one (1) of the petition having held the said ground one (1) as defective and incompetent.

The Appellant by this issue is challenging the decision of the Trial Tribunal to consider ground one of the petition after sustaining the objection to its competence. His argument is that the tribunal erred in law in taking a decision and reversing itself when it acted on ground one (1) of the petition having held that it was defective and incompetent. He submitted that it is trite that where a particular ground is held to be incompetent, then all issues formulated and resolved from the incompetent ground are liable to be struck out. He relied on the case JEV & OR V IYORTYOM AND ORS (2014) LPELR – 23000, UMAR V NVRI & ANOR (2018) LPELR – 45628, STEPHEN & ANOR V MORO & ORS (2019) LPELR – 48752 and USMAN AND ANOR V JIBRIN AND ORS (2019) LPELR – 48792.

He urged the Court to hold that the trial Tribunal erred in law when it formulated and adopted issue 2 and resolved same against the Appellant based on ground (1) of the petition having held the said ground one (1) as defective and incompetent ground is liable to be struck out. He urge the Court to resolve the issue in favour of the Appellant.

The 1st Respondent made no argument nor submission in respect of this issue in his brief of argument.
On behalf of the 2nd Respondent, it was argued that a Court of law has an unfettered discretion to rearrange or formulate issues for determination by the parties to meet the justice of the case, particularly whether there is proliferation of issues or the issues formulated or posed for determination are clumsy or not clear. He referred to the following cases PLATEAU STATE HEALTH SERVICE MANAGEMENT BOARD AND ANOR VS INSP. GOSHWE (2013) 2 NWLR (Pt. 1338) 383 at 399, A.I.B. LTD VS I.D.S LTD (2012) 17 NWLR (Pt. 1328) 1031-1032 AND BAKUT & ANOR V HON KANTOK AND ORS (2015) LPELR.

He added that it is within the procedural discretion of a tribunal in an election petition to decide a preliminary objection and the substantive petition in one judgment in order to achieve the end of justice within the limited time available to it. He added that this instant issue seems to challenge or fetter the judicial discretion by way of issue for determination. He relied on the cases of PDP VS INEC (2012) 7 NWLR (Pt. 1300) 539, KINDSLEY V HON. MATHEW OMEGARA AND ORS (2015) LPELR – 25660. He submitted that by formulating the said issue for determination, the Honourable Tribunal merely exercised its procedural discretion, and that the Appellants have not shown how the said exercise of discretion occasioned a miscarriage of justice. He contended that this issue under discourse, is to say the least, irrelevant, otiose as it will in no way affect the outcome of the appeal.

Equally the 3rd Respondent did not proffer any argument in respect of this issue. In that wise therefore, it is only the argument and submission of the Appellant and the 2nd Respondent on issue two that will be considered.

The contention of the Appellant is that since the Court ruled against the competence of issue one distilled from ground one of the petition by the Appellant, the Court has no vires to proceed again to consider the Appellants issue two.

The trial Tribunal after resolving issue one against the Appellant, proceeded to consider issue two distilled by the Appellant.
Issue one distilled by the Appellant and resolved against the Appellant is as follows:
“Whether ground 1 formulated by the petitioner i.e. that the election in the polling units of Murmur Kofar Fada P.U. Code 002 (Murmur North R.A. 07) and Daladagun, near village head P.U. Code 019 (Mainako R.A. II) was invalid by reason of corrupt practices or non compliance with the provision Electoral Act, 2010 (as amended) is in compliance with the provisions of the Electoral Act, 2010 (as amended)” (See page 713 -714 of the record.)

The trial Tribunal on pages 714 -715 concluded as follows:
“Without going into unnecessary details, from the above provision of the Electoral Act, 2010 (as amended) a petitioner can present an election petition base on corrupt practices or non compliance. The use of the word “or” connotes an alternative or an option. Therefore both corrupt practices and non compliance should not be joined together as one ground. Hence, in this particular petition, the joinder of both grounds by the petitioners is a fundamental breach of Section 138(1) (b) of the Electoral Act. The Respondents are therefore right in their complaint regarding ground one (1) of the petition. Hence their position that this ground as incorporated cannot be faulted. See the Court of Appeal’s decision in GOYOL VS INEC (No. 2) (2012) 11 NWLR (Pt. 11) 218 at 229 paras. G- 17 however, notwithstanding the defect in ground one (1) of the petition we have resolved to be on the side of caution. This is more because this petition is not based on only ground one (1). There are two other grounds in this petition. We will rather consider and determine this petition base on all the three ground presented by the petitioners. Similarly, the fact supporting this ground one (1) and the relief subsist and we decline to strike out same as requested by the Respondents. Further we do not accept the view of the 2nd Respondent contained in paragraph 14(e) of his reply that this petition amounts to an abuse of judicial processes. We are unable to see how the petitioners are in properly using the judicial or legal process in the petition”

Based on the foregoing position of the Tribunal, it proceeded to consider the issue and on page 787 resolved as follows:
“—— we resolve the second issue for determination formulated by the petitioner and adopted by this Tribunal against them and in favour of the Respondents.”

Considering the totality of the foregoing, the Tribunal in my view followed the line designed by the petitioner in coming to the conclusion reached to determine issue two by the petitioner. Let me add, that a Court has the vires to reframe or redraft an issue in line with the complaint before it and the evidence adduced during trial. This of course does not extend to the power to formulate fresh issues. Where that is done, the parties should be allowed to have a say. That is not the position in this issue. Having said all the foregoing, it is my ardent view that the Tribunal has not step outside its power by adopting the issue formulated by the Appellant.
On this note, issue 2 is resolve against the petitioners.

ISSUE 3
Whether the failure and refusal of the trial Tribunal to accept the evidence of PW5 and PW8 holding their evidence as hearsay, relying on the decision in TERVER KAKIH VS PDP AND ORS (2014) 15 NWLR (Pt. 1430) P. 374 at 390 did not occasion miscarriage of Justice to the Appellant

The contention of the Appellant is that the Tribunal erred in arriving at the decision because;
(i) The case of TERVER KAKIH VS PDP AND ORS (2014) 15 NWLR (Pt. 1430) page 374, is distinguishable with the instance case in that PW5 and PW8 are eye witnesses to the election and they testified based on their personal knowledge in respect of the election at the polling units of Murmr and Daladagun.
(ii) PW5 and PW8 did not rely on reports from other source as they both gave direct evidence which is admissible in the circumstance of the Appellant’s petition.
(iii) Corporate entities such as the 2nd Appellant in the instant case are artificial persons who can only act through its human agents, and PW5 and PW8 are human agents to 2nd Petitioner/Appellant which is a body corporate. The Supreme Court has held in plethora of cases including SALEH V B.O.N (NIG) LTD (2006) NWLR (Pt. 976) 316 that the testimonies of human agents of corporate bodies in relation to transaction involving the company are not hearsay even though they were not personally involved in the transaction”

He argued that the trial Court in the case of TERVER KAKIH VS PDP AND ORS (supra), the testimonies of the witnesses are held to be that of hearsay and that they did not rely on any report from others sources. Rather they were present at the unit.

They have personal knowledge of the fact that is dealt with in the petition. Their evidence is therefore not hearsay but direct. He relied on the case of OJO V GHARORO (2006) 10 NWLR (Pt. 987) 210 at 258. Para. F-C. He added that the said case is not applicable because the facts of this case and that of the case are not similar. He relied on ADENIGBA AND ANR V OMOWORARE AND ORS (2015) LPELR – 40531 and BUHARI V OBASANJO (2003) LPELR – 24859. It is his argument that the exclusion of the petitioners agent as proved by PW5 and PW8 would lead to nullification of the result in Murmur Kofar Fada polling unit in view of the manifest irregularities that were perpetrated in the polling units. He relied on AMACHREE VS GOODHEAD AND ORS (2008) LPELR 3760. He submitted that the finding of the trial Tribunal on PW5 and PW8 was predicated on erroneous evaluation of the Appellant’s case by the Tribunal. He referred to SALEH V B.O.N NIG LTD (2006) NWLR (Pt. 976) 326 – 327, CARLEN (NIG) LTD V UNIVERSITY OF JOS (1994) NWLR (Pt. 323) 631 at 640, CHEMIRON LTD V STABILINI VISINONI LTD (2018) 17 NWLR (Pt. 1647) 62 at pp. 77 – 78.

Based on these cases he added that the testimony of PW5 and PW8 cannot be said to be hearsay. He added that none of the polling agents, presiding officers, polling clerks, can give evidence as to what transpire at the polling units. The voters and observers are otherwise competent witnesses, if they can satisfy the condition under Sections 77 and 115 of the Evidence Act. He relied on AREGBESOLA V OYINLOLA (2011) 8 NWLR (Pt.1253) 458, 575-576 paras. G-A, LASUN V AWOYEMI (2009) 16 NWLR (Pt. 1168) 513, at 553-554, IGBE AND ANR V ONA AND 2 ORS (2012) LPELR – 8588.

He submitted that the trial Tribunal erred in holding that the evidence of PW5 and PW8 was hearsay. Competency of witnesses to give evidence is fortified by the reasoning of the Court. He relied on YUSUF SULAIMAN LASUN V ADEJARE AWOYEMI AND ORS (2009) 16 NWLR (Pt. 1168) 513 at 554 B-D. He argued that the rejection of the testimonies of PW5 and PW8 is a denial of the Appellants’ right to fair hearing. He cited Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. Therefore it occasioned a miscarriage of justice to the Appellants.

Having read the record of appeal, and considering the contention of the Appellant, on issue (3) three, and after comparing it with his contention on issues 4 and 5, it is my view that they are all challenging the appropriateness or otherwise of the evaluation carried out by the trial Court in coming to the conclusion reached. This is also fortified by the method of arguing the three issues together by the 1st and 3rd Respondents respectively. Therefore, I have decided to take the three issues together. I will therefore proceed with the review of the argument of the Appellant on issues 4 and 5.

Herein under, I reproduce issues 4 and 5
ISSUE FOUR (4)
Whether the trial Tribunal was not in error and occasioned miscarriage of justice to the Appellant in its decision that the only evidence acceptable as proof of improper or illegal accreditation is for the petitioners (Appellants herein) to establish that the number of accredited voters in each of the two polling units exceed the number of registered voters, and that the issue of ticking heavily relied upon by the petitioners is not known to the Electoral Act, INEC Guidelines, Regulations or Manuals. (Ground 6)
ISSUE FIVE (5)
Whether having regard to the pleadings and the entire evidence led by the parties at the trial Tribunal, the Appellants have proved the petition on the requisite standard of proof and ought to have judgment in their favour. (Grounds 4, 7, 8 & 9)

On issue 4, the argument of the Appellant in summary is centered on the finding of the Tribunal where it said thus:
“In our view, the only evidence acceptable as proof of improper or illegal accreditation is for the petitioners to establish that the number of accredited voters in each of the two polling units exceed the number of registered voters. Their unproven claim of tickling or not tickling in voters register did not and cannot help their case. In fact, the issue of tickling heavily relied upon by the petitioner is not known to the Electoral Act, INEC GUIDELINES, Regulation or Manuals”

He argued that in Election petition proceeding, testimonies of witness in the main is through adopted written statement on Oath and not “blow” by “blow” evidence in the Exhibits. He relied on the case of BAITACH V SHADAFI (2012) 13 NWLR (Pt. 1217) 396 at 415. He asked the question whether or not the documents tendered through witnesses were merely dumped at the Tribunal. He answered in the negative and referred to the testimonies of PW5 and PW8. He added that their testimonies emphatically showed that the exhibits are linked to the testimonies of the witnesses. They also demonstrated the exhibit and not that they merely dumped them before the Tribunal. Haven adopted their written witness statement Oath, it becomes operatives as their examination in chief. He cited the following cases: AREGBESOLA AND ORS V OYINLOLA AND ORS (2010) LPELR – 3805, OKE V AGUNBIADE AND ORS (2011) LPELR – 3897.

He also relied on the Manual for Election Official 2019 (Exhibit p. 13) (1-111) paragraph 2.6 on what constitutes over voting. He also relied on the case ofIKPEAZU V OTTI (2016) 8 NWLR (Pt. 1513) 38 at 88, paras. C. E. 92 para. G, INIAMA V AKPABIO (2008) 17 NWLR (Pt. 1116) 225 at 307, Para. D, AWUSE V ODILI (2005) 16 NWLR (Pt. 952) 416, MALUMFASHI V YABA (1999) 4 NWLR (Pt. 598) 230 at 237, which says that Electoral malpractices can occur in a situation where the votes scored by parties exceed the number of accredited voters. He argued further that all the evidence of the petitioner are admissible as the polling agents called in respect of the over voting, exclusion of polling agents were all that of agents who saw and witnessed all that happened during the rerun election in question. He submitted that their testimonies are admissible evidence and hence the documents tendered were activated by the oral evidence of PW1, PW2, PW3, PW5 and PW8. He cited the case of TERAB V LAWAN (1992) 3 NWLR (Pt. 236) p 569 at 592 para. D-E. He added that the bulk of the regularities alleged are based on documentary evidence as it relates to the entries made in the election results and voters Register and which no evidence can vary. He referred to ABIODUN JOSEPH V FAJEMILEHIN (2012) LPELR – 9849.

It is his argument that the failure of the Tribunal to award credence to the testimony of PW5 & PW8 and the Manual for Election officials 2019 (Exhibit p. 3(1-111), paragraph 28(iv) of INEC Guidelines for 2019 General Election (Exhibit p 14 (1-33) admitted during trial is a clear failure to properly evaluate both oral and documentary evidence before the trial Tribunal.

On issue five (5), he argued that it is an established principle of law that the burden of proof in Election petition cases is never static but shifts. He relied on S. 136(1) of Evidence Act, 2011 (as amended). He added that burden of proof in civil cases is not legal proof but evidential. He cited the case of MR. IBIBIAMA F.G. ODOM AND ORS V THE PEOPLE’S DEMOCRATIC PARTY AND ORS. (2015) LPELR – 24351. He posed the question whether or not the Appellants discharged the burden of proof and established that there was unlawful votes in the scores that led the 2nd Respondent to victory and how the Appellant proved same before the Tribunal. He added that the starting point is the resort to the statutory provision and decided cases on over voting and how to prove same.

He referred to S. 53(2) of the Electoral Act, 2010 (as amended). He submitted that the Appellants have proved over voting by the comprehensive documentary evidence i.e. Exhibits P1-P29. And the uncontradicted evidence of PW1, PW2. PW3. PW5 and PW8 who are polling agents of the Appellant. He referred to NYESOM V DAKUKU AND ORS (2016) LPELR – 40036 INIAMA V AKPABIO (supra), AGBALLAH V CHIME (2009) 1 NWLR (Pt. 892) 92, AMGBARE V SYLVA (2009) NWLR (Pt. 1121) 1 at 61, UCHA V ELECHI (2012) LPELR – 7823 – G-H.

He contended further that the petitioner’s witnesses were able to establish that the 2nd Respondent scored 14,722 lawful votes as against the 1st petitioner’s score of 15103 lawful votes. Hence the petitioner ought to have been returned. Referring to the testimonies of DW1, DW2, he argued that the Tribunal relied heavily on the testimony of DW2 which is hearsay in resolving all the issues against the Appellant. He submitted that the Tribunal erred in relying on inadmissible hearsay Evidence. He relied on the case of TERVER KAKIH V PDP AND ORS (2014) 15 NWLR (Pt. 1430) page 374.

Further he submitted that the standard of proof required when the Respondents did not call evidence is minimal proof. He relied on ADMIN EXEC ESTATE, ABACHA V. EKE-SPIFF (2009) 7 NWLR (Pt. 1139) page at 113. It is also the law that where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings and admitted the allegations against him in the Plaintiff’s case. He relied on the case of OJOH V KAMALU (2005) 18 NWLR (Pt. 958) DINGYADI V WAMAKO (2008) 17 NWLR (Pt. 1116) 395 at 431. He added that the presumption of regularity, is not an open cheque as it were but rather, a presumption rebuttable in the face of cogent and credible evidence. He relied on the case CPC V INEC AND ORS (2011) LPELR – 8257, ABUBAKAR V YAR’ADUA (2008) 19 NWLR (Pt. 1120) page not supplied), LAWAN V YAMA (2004) 4 NWLR (Pt. 877) 117 at 143, FCDA V NAIBI (1990) 5 SCNJ 186, 195-196. It is his case that the Appellant have proved over voting in the polling unit of their complaint before the trial Tribunal and the legal consequence is that it affected the overall scores of the Appellants and that of the 2nd and 3rd Respondents and if the affected votes are deducted the Appellant will lead with the lawful majority votes cast.

He urge the Court to resolve this issue in favour of the Appellants against the Respondents and that the appeal has merit and same is to be allowed in the circumstances.
On behalf of the 1st Respondent it is submitted that from the totality of the evidence adduced, the Appellants did not prove their case as per the three grounds based on which they sponsored at the Tribunal. That the burden of proof of an election petition lies on the petitioner as laced in the time honoured principle of evidence that he who asserts must prove. He referred to the case of SENATOR IYIOLA OMISORE AND ANOR V. OGBENI RAUF ADESOJI AREGBESOLA AND ORS (2015) LPELR – 24803. He added that the Appellant who sought declaratory reliefs at the Tribunal must succeed on the strength of his own case. He cited the case MOHAMMED V WAMMAKO AND ORS (2017) LPELR – 42667, AGI V PDP AND ORS (2016) LPELR – 42578.

It is his case that by simple adumbration of the Appellants, PW1, PW2, PW3, PW5 and PW8 testimonies, none of the witnesses was able to establish the spurious allegations of non compliance with the provisions of the of the Electoral Act. He added that the allegation of non-compliance with provision of the Electoral Act cannot be brought by way of general or sundry allegations as done by the Appellants in their petition. Such allegation must be positive, specific and direct, and the Appellant must discharge the statutory burden of proof placed on them to be able to discharge the legal duty. He added that non of the witnesses was able to aptly establish that there was corruption and under age voting so much to have plaque the generally well conducted election. That an allegations like corruption and non-compliance with the provision of the electoral Act, the burden of proof in such instance is that the Appellants must prove such allegations beyond reasonable doubt. He cited the case of SENATOR IYIOLA OMISORE AND ANOR V OGBENI RAUF ADESOJI AREGBESOLA AND ORS.

He submitted that none of the Appellant’s witness was able to establish convincingly his presence at the polling unit. Even the purported abductees who testified for the Appellant as PW1 and PW2 who under cross examination said they were not at the polling units. He argued further that only the witnesses who were present at the polling units throughout the conduct of the elections could legally qualify to give credible testimony that the Court may venture to access the veracity of the truth therein. The Appellant according to the 1st Respondent did not call such evidence of eye witness account of the happening at the polling units. He referred to PDP V EL-SUDI AND ORS (2015) LPELR – 26034. The burden required in this instance can only be discharged by an eye witness who are agents of the Appellant and who in such capacity, observe the poll from its opening to the end at the polling units. He submitted that from the evidence adduced by PW1, PW2, PW3, PW5 and PW8, it is clear that they are not eye witnesses at the polling units through out to have rendered account of what transpired there. He added that there is presumption of regularity of election result announced by the Independent National Electoral Commission (INEC). He cited the case of FIJABI AND ANOR V INEC AND ANOR (2019) LPELR – 48660.

In conclusion, he argued that the Appellant by the entire summation, their evidence failed to rebut this presumption while presenting their petition. He urged the Court to uphold the decision of the Election Petition Tribunal.

The reaction of the 2nd Respondent to issues, 3 4 and 5 is that the position of Nigeria electoral jurisprudence is that any result published by the (1st Respondent) is presumed authentic and genuine which in Latin is “Omnia Praesumuntur rite esse acta” that it is the duty of the person who is asserting the contrary that the result declared is not authentic or genuine to rebut same. He referred to Section 139(1) Electoral Act, 2010 (as amended) Section 167 Evidence Act, 2011, EZEAZODOSIAKO Vs OKEKE (2005) 16 NWLR (Pt. 952) 612, ONYE V KEMA (1999) 4 NWLR (Pt. 598) 198, MOHAMMED V MOHAMMED (2008) 6 (Pt. 1082). He argued that if the Appellants successfully establish their allegations as highlighted herein, and in accordance with the requisite standard of proof the said presumption of regularity would have been rebutted and the published results liable to be set aside. He referred to Section 136(1) (2) and 137 of the Evidence Act, 2011. He gave a vivid analyses of the testimony of PW5, PW8. He submitted that from the answer given by the two witnesses to questions under cross examination that their testimonies were potpourri of admissions against interest, contradictions, inconsistencies, understatement and fanciful hyperboles. These facts he added exposes the two witnesses (PW5 and PW8) as bereft of credibility and veracity. He argued that it was based on the foregoing that the trial Tribunal came to the conclusion contained on pages 775-776 of the Record of Appeal on the evidence of PW5 and PW8. He added that the decision of the Tribunal was not base only on the case of TERVER KAKIH VS PDP AND ORS (2014) 15 NWLR (Pt. 1430) 374.

On issue of over voting he argued that the Appellant failed to establish the allegation and hence the finding of the Tribunal on pages 796-797 of the Record. On complaint of corrupt practices at the election he submitted that it is in the nature of a criminal act and which must be proved beyond reasonable doubt. He relied on the case of MOMAH V HON. ANOHUN AND ORS (2015) LPELR – 40708.

He argued that none of the Appellant’s witnesses linked the alleged corrupt practices to the 2nd Respondent in their evidence. He stated that PW1 and PW2 made allegation of proxy, under age voting, multiple voting, allocation of unlawful votes and others. It is his contention that under cross examination, the Appellant’s witnesses were unable to state the number or name of persons who voted by proxy and the PDP agents who gave PVC to the alleged under age voters. He added that PW3’s testimony is of no value, in that he did not also know who gave PVC and who voted and did not sign the Result Sheet. The trial Tribunal based on the foregoing disqualify their testimonies and concluding that they are not witnesses of truth. He argued further that the Appellant’s claim to majority of lawful votes crumbled like pack of cards in the face of documentary evidence, which clearly showed that the 2nd Respondent won the majority of lawful votes. He relied on the cases of NGIGE V OBI (2006) 14 NWLR (Pt. 999) 233, OGBEIWI V HON. MOSES AND ORS (2009) LPELR – 4685, ORIANZI V A.G. RIVERS STATE AND ORS (2017) 6 NWLR (Pt. 1561) 224, ADESANOYE V ADEWOLE (2009) 9 NWLR (Pt. 671) at 145.

He urge the Court to resolve the issues against the Appellant and dismiss the appeal.
The 3rd Respondent submitted that for the Appellant’s petition to succeed they must substantiate their claims before the Tribunal. The burden of proof placed on them shall be discharged by adducing credible and reliable evidence and they must succeed on the strength of their case and not on the weakness of the Respondent’s case. He cited the case of ALL NIGERIA PEOPLES PARTY V ARGUNGU (2019) ALL FWLR (Pt. 467 page 94 at 107, HASKE V MAGAJI (2019) ALL FWLR (Pt. 461) page 887 at 903 para. B.C, KABIRU VS MOHAMMED (2010) ALL FWLR (Pt. 548) page 978 at 997 para B-F, and a host of others. On onus of proof he relied on the cases of HOPE V ELLEH (2010) ALL FWLR (Pt. 537) page 685 at 699 para. C D, DIDE V SELEKETIMIBI (2010) ALL FWLR (Pt. 509) page 583 at 601 para. A-B, ADIGHIJE VS NWAOGU (2010) 12 NWLR (Pt. 1209) page 419 at 459 para. E-G, page 463 para. F-H. He added that in election matters, the standard of proof is on balance of probability or on preponderance of evidence, he relied on the case of ADIGHIJE V NWAOGU (2010) 12 NWLR (Pt. 1209) page 419 at 459 paragraph E-G page 463 para. F-H.

He contended that the Appellant did not support their pleadings in respect of the proof of Electoral offences and non compliance with the provision of Electoral Act. He contended further that, the petitioner tried to establish that agents at Murmur Kofar Fada 002 were abducted (PW1 and PW2) Lamara Bura and Mustapha Dalaihi respectively. But surprisingly result sheets Form EC8A (II) for Murmur Kofar Fada 002 were signed by the petitioner agent ABDULLAHI HUDU (PW7). He argued that the proof of electoral offences is proof beyond reasonable doubt and that the petitioners have failed to established that the election in the polling unit of Murmur Kofar Fada 002 and Daladagun near village head P.U. 019 was invalid by reason of corrupt practices or non compliance with the provisions of the Electoral Act, 2010. He urge the Court to so hold.

He submitted finally that in the examination in chief and cross examination of PW1, PW2, PW3, PW5 and PW8, they were unable to name the person who voted by proxy, name the PDP agents that facilitated the voting by minors nor the minors themselves, identify the policemen that abducted them or show that they did so on behalf of the PDP nor did they furnish the Court with numeric evidence of multiple voting or unlawful allocation of votes. He added that the Petitioners were unable to link the Respondents with any of the allegations levied. They failed to discharge the burden placed on them by any shadow of doubt. Having failed to prove the criminal allegations beyond reasonable doubt. He urge the Court to discountenanced the allegations.

He urged the Court to uphold the decision of the lower Tribunal and to dismiss this appeal for lacking in merit with cost.

Having carefully read the argument of respective counsel on issues 3, 4 and 5, the first question that agitate the mind is whether or not the Tribunal accorded probative value to the testimony of PW5 and PW8 and whether the Appellants established the allegation of over voting in the two polling units of Murmur Kofa Fada and Daladagun Near village Head.

What the foregoing question is contesting is whether or not the trial Tribunal properly evaluated the totality of evidence placed before it. It is trite that evaluation of evidence called at the trial, the ascription of probative value to them and making primary findings to them are matters within the province of the Court of trial which has the singular advantage or preeminently placed of seeing and hearing the witnesses testify and watching their demeanor. See the case of BALOGUN & ORS V ALIMI AGBOOLA (1974) 1 ALL NLR (Pt. 2) 66, MILITARY GOVERNOR OF WESTERN STATES V AFOLABI LANIBE & ANOR (1974) 1 ALL NLE (Pt. 2) 179, MAIKUDI V MUSA (2004) ALL FWLR (Pt. 230) page 1096 at 1109, DATOEGOEM DAKAT V MUSA DASHE (1997) 12 NWLR (Pt. 531) 46, LASISI MORENIKEJI & ORS V LALAKE ADEGBOSI & ORS . (2003) 8 NWLR (Pt. 823) 612, HON. ESEME EYIBO V MR. DAN ABIA & ORS (2012) LPELR – 20607.

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Bearing the foregoing in mind the first question is whether or not the tribunal accorded probative value to the oral testimony of PW5 and PW8 on the ground of lack of credibility. The adopted written statement on oath of PW5 and PW8 has to be visited. The adopted written statement on oath of PW5 is contained on pages 27-37. The complaint against the conduct of the election can be seen in paragraphs 2, 8, 9, 16, 18, 23, 24, 25, 26, 27, 28, 29, 32, 32, 35, 36, 37, 38, 45, 46, 47, 48, 49, 50 and 52 of the statement on Oath. By paragraph 2 it is clear that PW5 served as supervisory agent in the Rerun election in the affected wards on 25/1/2020. Paragraph 2 reads:
“That during the rerun election of ZAKI Federal Constituency held on 25/1/2020. I served as the supervisory agent on the Petitioners and went round the polling units of Murmur and Daladagun on the day of the election, by virtue of which I am conversant with the fact and circumstances of this petition”

In paragraph 8, he posited as follows:
“The agents and official of the 2nd petitioner performed several functions relating to the disputed election, including but not limited to monitoring the election and witnessing the distribution of election materials, signing of result sheets, collecting and forwarding of duplicate result sheets to their colleagues, originating, receiving and forwarding of complaints to appropriate quarters and performing related duties for the success of the election”

On page 657-663, the said witness adopted his written statement on Oath and was cross examined. While under cross examination by the 1st Respondent he said thus:
“I and Ibrahim Ayuba were the Local Government Supervisory agents of the three (3) Units during the rerun election on 25/1/2020 for the two (2) petitioners. The nature of our duties during the rerun election was going round to see the conduct of the election in the three polling units. We moved from polling units to polling units to observe the accreditation, voting, sorting and counting of votes. We worked jointly and moving in the same car. We were able to accurately report what was happening because we had our agents at the three (3) polling unit. I still stand by paragraph 23 of my adopted statement on Oath. When our agents were abducted, we were told by our supporter that they were abducted by the police. On officer named Abdullahi admitted to me that he was around when our agents were abducted and he said he will write a report to that effect. I also complained to INEC officials who conducted the election and I also complained to my party. As a supervisor, I do not know who the voters voted during the rerun election. I maintained my deposition in paragraphs 27 and 28 of my adopted statement on Oath. The Card Reader and the voters register were used for accreditation, but the voter’s register was more reliable for correct accreditation than the Card Reader”

Responding to questions under cross examination by the counsel to the 2nd Respondent PW5 said thus:
“——- yes paragraphs … and 5 of my statement on Oath are my deposition and the election of 25/1/2020 is the subject matter of this petition. I did not state in my statement that the subject matter of this petition is the rerun election of 25/1/2020. I insist that during the rerun election, I was the supervisor in the three (3) polling units at the same time. I went to Dugumari polling unit on 25/1/2020 around 8-10 am. I also went to Dugumari around 1.30 pm and left 2.00 pm noon. I left there around 1.15 pm. I was in Daladagun polling units around 10.27 and remain there up to 11.30 am. Yes all my observations in these polling units were done between this 12.00 noon to 1.15 i.e. One hour fifteen minutes. I was in Dugumaru polling unit when election started. Yes I witness the collation and declaration of the result in Dugumari polling unit. In Dugumari polling unit APC scored 197 votes and PDP 99 votes. Yes I signed the result for the said Dugumari polling unit because our agent in the polling unit was having abdominal pains and we have to excuse him to go. Yes the result shown to me is that of Dugumari polling unit. —- I also stand by my paragraph 29 of my adopted statement on Oath. I did not sign the statement of Result of Murmur polling unit because when I was there election was on going. I did not witness the exclusion of our party agents at Murmur polling unit. Yes I stand by paragraph 31 and 40 of my statement. I identified 87 voters who voted without accreditation. Yes in paragraph 31 I said total registered voters 825 and accredited voters 586, total votes case 583. Yes I agree that 583 is lower than 586. Equally 583 is by far lower than 825. All these information and figures, I obtained them in form EC8A of Murmur polling unit. Yes I found out the 589 votes cast from the voters register and not from form EC8A. Yes I recall paragraphs 50 and 51 of my statement on Oath. I did not work in the Ministry of Health at the time of the rerun election. Yes the salary of the 2nd Respondent was paid for month of January through U.B.A. Bank account. I am not a staff of the Bank and did not work there. I insist that I was APC Supervisory agent during the rerun election of 25/01/2020”

His respond to questions by the learned Counsel representing the 3rd Respondent goes thus:
“Yes I reiterate that on 25/1/2020 during the rerun election I served as supervisor for the petitioners. Yes I went around freely on 25/1/2020. Yes, I did not mention supervisory agent in paragraph 7 of my statement. Yes I have seen Exhibits P2, P7 and P8 now shown to me”

I now move to the testimony of PW8 Ibrahim Muhammed whose written statement on Oath is tagged BBK6 on pages 8-11 of the reply by the Petitioner on pages 417 to 420. His bone of contention can be found in paragraphs 3, 6, 7, 8, 10(a) – (c), 11, 13, 15, 17 and 18. He adopted his written statement on oath. See page 669 of the record of Appeal. Under cross examination by the 1st Respondent he said thus:
“Yes I served for the Respondent (sic) as supervisory agent during the election. Yes I stand by paragraph 6 of my statement just read to me. Yes during the rerun election, the 2nd Petitioner had its agents in all the three polling units. INEC had the power to declare the result of the rerun election”

Responding to cross examination questions by the learned Counsel representing the 2nd Respondent he said. (See pages 670-671 of the Record).
“I was supervisor at Murmur Kofa Fada polling unit on 25/1/2020 during the rerun election. I was not restricted to this Murmur Kofa Fada polling units but I also moved to Daladagun polling unit. From Murmur to Daladagun is not up to 50 kilometers but it is about 47 kilometers. I was moving with the vehicle (car) allocated to me. I was at Murmur Kofa Fada at about 8.10 am and left at 9.30 am and went to Daladagun. Yes before I left Murmur polling unit election was going on smoothly. I arrived Daladagun polling unit at 10.10 am. I left Daladagun at around 11.10 am. Election was going on, but the INEC official was collecting voting cards (sic) from women and voting on their behalf. The women that the INEC supervisor voted on their behalf were between 70 -90 voters and they were not accredited. I saw the INEC supervisor when he was thumb-printing. But I do not know which candidate he tumb printed for. I did not visit Dagumari on 25/1/2020 during the rerun election. Myself, Garba Musa Kore and Ibrahim Ayuba were the 2nd petitioner’s supervisory agents. We were not moving together in the same car. Yes each of the three of us were assigned to specific polling unit. The first place of assignment of Garba Musa Kore was Dugumari. Garba later left Dugumari to Murmur Kofar Fada polling unit after my departure. Ibrahim Ayuba was in charge of Daladagun polling unit. When I arrived at Daladagun I did not meet Ibrahim Ayuba. Later I returned to Murmur Kofar Fada polling unit. When I left Murmur Kofar Fada Ibrahim Ayuba was at Daladagun and when l arrived at Daladagun, Ayuba has left to Murmur Kofar Fada polling unit. I do not know what happened at Daladagun from 11.00 am to the end of the election. Since I was not present. I analysed the voters register and not the card reader. Yes I identified 87 unlawful votes at Murmur Kofar Fada as 87 voters were allowed to vote without accreditation. Particularly, 99 voters voted at Daladagun without accreditation. But I do not know to which particular candidates these unlawful votes were credited . I do not know who was APC agent at Dugumari unit. I analysed only the result of Murmur Kofar Fada and Daladagun polling units and not that of Dugumari. Yes I have seen paragraph 18 of my statement on Oath. The figures of 14,722 and 15,103 I stated therein includes the result of Dugumari polling unit.”

His answer to cross examination question by the learned Counsel to the 3rd Respondent goes thus. (See p. 671 of the Record of Appeal.)
“I am a retired civil servant and have Diploma in Public Administration and certificate in Journalism. My conclusion that the Respondent (sic) is the winner of the rerun election is based on my study of INEC documents.”

In his process of evaluating the evidence before the tribunal, the learned judges of the trial Tribunal on pages 728 -730 reviewed the evidence of PW5 and that of PW8 on pages 731 to 740. Equally the evidence of the 2nd Respondent were reviewed from P. 740-752 thereafter the issues were considered.

From the records, the evidence of PW5 and PW8 centers on their complaint under Section 138(1) (b) of the Electoral Act, 2010 as amended.
At pages 775 – 777 the trial Tribunal critically analysed the testimonies of PW5 and PW8 and their responses to questions posed to them by the respective Respondents during cross examination.
On page 782, the trial Tribunal came to the conclusion as follow;
“Putting the totality of the evidence adduced by the petitioners and the Respondents we hold that the petitioners failed to prove their allegations on non compliance with the provisions of Section138(1) (b) of the Electoral Act, 2010 (as amended)”

On the allegation of corrupt practices, the trial tribunal diligently and critically examined the evidence of PW1, PW2, PW3, PW5 and PW8 and came to the conclusion that the evidence of the aforementioned witnesses do not meet the standard of proof required in claim based on criminal allegation. The Court added that in their evidence in chief and under cross examination, the witnesses were unable to name the persons who voted by proxy. They failed to tell this tribunal the name of the PDP’s agents who gave other voter’s PVC to underage children nor identity of the said under aged children who voted.
They alleged that there was multiple voting, unlawful allocation of votes, they made criminal allegation against unnamed police men and unnamed agents of the Respondents. The evidence adduced by the petitioners in proof of their criminal allegation in respect of the rerun election of 25/1/2020 is not consistent with the guilt of any particular agent of the Respondents, Policeman or officer or any person. Section 135(1) of the Evidence Act imposes strict/heavily burden on the petitioner to prove the alleged criminal acts beyond reasonable doubt, criminal offence(s) cannot be directed against unnamed or unknown person. In our view the petitioners woefully failed to prove their ground one of the petition which complained that the rerun election held on 25/01/2020 in the polling unit of Murmur Kofar Fada and Daladagun near village head was invalid by reason of corrupt practices.

The trial Tribunal did not stop there but also examined Exhibit P. 8 which is the letter from the office of state security which content read in part thus:-
“no security report was made in respect of the said rerun election. This is because there was no any formal report or complaint made by any of the parties involved during the exercise to the command to necessitate carrying out investigation and subsequent putting up of a security report.”
The Tribunal’s finding is that the rerun election of 25/1/2020 in the three (3) polling unit including that of Mumur Kofar Fada and Daladagun Near village Head was fair, free and in substantial compliance with the provision of the Electoral Ac, 2010 (as amended) —–“

In conclusion, the Tribunal said thus:
“—–we prefer the evidence of the 2nd Respondent or Respondents over and above that of the petitioners as same is more credible, reliable and believable. Consequently, we resolved the said issue for determination formulated against the petitioner and adopted by the Tribunal against them and in favour of the Respondents”

The Tribunal also considered the allegation on invalid votes which forms the complaint of the Appellant under issue 3 (three). The trial tribunal from pages 796-810 critically again considered the evidence of the petitioner and considered Exhibits P1, P7. P12, BD12 and BD14 and concluded that there was wrong calculation of the votes by the respective parties, corrected same, declared the 2nd Respondent as winner of the rerun election in contest.
It will be recalled that somewhere before now in this judgment I provided what proper evaluation of evidence connotes. Bearing that in mind and considering the position of the law on burden of proof specified under Section 137(1) of the Evidence Act, 2011 (as amended) and which is settled that it is he who asserts the existence of a fact or set of facts which are to his knowledge that must proof those facts through evidence by him or his witnesses see the following case ALHAJI ALIYU BALOGUN V ALHAJI LABIRAN (1988) 3 NWLR (Pt. 80) 66, B.A. IMONIKHE V UNITY BANK OF NIGERIA PLC (2011) 5 SCNJ 98.
I said before that the evaluation of evidence and ascription of probative value to evidence is a matter primarily for the trial Court or Tribunal. See again CHIEF S. O. ADEDAYO AND ORS V PEOPLES DEOCRATICE PARTY AND ORS (2013) 17 NWLR (Pt. 1382) 1 AT 40. It is also trite that where a trial Court unquestionably evaluates the evidence and appraises the facts as in this appeal at hand, it is no business of the Appellate Court to substitute its own view with the view of the trial Court. See BALOGUN V. AGBOOLA (1974) 1 ALL NLR (Pt. 2) 66. It is only where the finding is perverse, i.e. not supported by evidence on record or based on wrong evaluation or not based on evidence led at all that this Court will intervene. In my view, the evidence led by the petitioner were materially destroyed under cross examination and hence the trial tribunal came to the conclusion that the testimonies of PW5 and PW8 are nothing but that of an hearsay evidence. It is also trite that an election would only be nullified when substantial non compliance has been effectively and sufficiently proved and shown to have affected the outcome of the election. That has not been proved or shown here as concluded by the trial Tribunal. See OLUWAROTIMI O. AKEREDOLU V DR. RAHMAN OLUSEGUN MIMIKO & ORS (2014) 1 NWLR (Pt. 1388) 402 at 432.
In my humble view, there is no reason to disturb the findings and conclusion of the trial Tribunal in that they are product of proper evaluation of the totality of the evidence adduced by the respective party. The Appellant has failed woefully to establish any of his allegations against any of the Respondents and in particular the 2nd Respondent. Therefore issues 3, 4 and 5 are respectively resolved against the Appellant and in favour of the Respondents.

The appeal therefore is devoid of any merit and in consequence dismissed in its entirety.
The judgment of the National Assembly Election Petition Tribunal Bauchi State delivered on the 28th day of July, 2020 in Petition No EPT/NASS/BA/02/2020 is hereby affirmed.
Parties to bear their respective costs.

ADZIRA GANA MSHELIA, J.C.A.: I had the advantage of reading a draft copy of the leading judgment just delivered by my learned brother Oniyangi, JCA.
I agree with his Lordships reasons and conclusion. Appeal dismissed. I abide by order made as to costs.

TANI YUSUF HASSAN. J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA. I am in agreement, the appeal is devoid of merit and it is also dismissed by me. I affirm the judgment of the Tribunal. Parties to bear their costs.

Appearances:

Rabiu Garba Esq. with him, A.Z. Aliyu Esq.,
Abubakar Garba Esq., and Mohammed Abubakar Esq. For Appellant(s)

A. Umar Esq. with him, Andrew Joshua Esq. for the 1st Respondent
T.G.E. Nwugha Esq. with F.C. Chinyere Esq., M.J. Jaidi Esq. and E.O. Peters for the 2nd Respondent
Shipi Rabo Esq. for the 3rd Respondent For Respondent(s)

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