PEOPLES DEMOCRATIC PARTY V. CHIEF ANAYO ROCHAS OKOROCHA & ORS (2011)

PEOPLES DEMOCRATIC PARTY V. CHIEF ANAYO ROCHAS OKOROCHA & ORS

(2011)LCN/4929(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 24th day of January, 2012

CA/OW/EPT/52/2011

RATIO

REPLY BRIEF: PURPOSE OF A REPLY BRIEF

It is now settled that a Reply Brief as the name suggests is meant to be a reply in respect of new points that may have arisen from a Respondent’s brief. It is not an avenue through which or by which an appellant should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on point of law. See the case of Adebiyi v. Sorinmade (2004) All FWLR (239) 933 and Shuaibu v. Maithoda (1993) 3 NWLR (284) P.748. PER TIJJANI ABDULLAHI, J.C.A

ELECTION PETITION: CONSEQUENCE OF AN ELECTION PETITION FILED OUTSIDE THE STATUTORY ALLOWED TIME FOR FILING ELECTION PETITION

It is now settled law that petition filed outside the statutory time limited for filing petition renders the petition incompetent and robs the courts of its jurisdiction even the appellate court as one cannot put something on nothing and expect it to stand vide Macvoy v. UAC (1962) AC 52; Ikharaiale v. Okoh (2009) 12 NWLR (pt.1154) 1 at 37; Ibrahim v. Fulani (2010) 17 NWLR (Pt.1222) 241 at 264-266. PER TIJJANI ABDULLAHI, J.C.A

ELECTION PETITION: HOW TO CHALLENGE AN ELECTION AND RETURN AT AN ELECTION UNDER THE ELECTORAL ACT, 2010 AS AMENDED; CONDITIONS A PETITIONER MUST SATISFY THE COURT WITH TO HAVE A VALID AND COMPETENT PETITION

JURISDICTION OF THE ELECTION TRIBUNAL: WHETHER THE ELECTION TRIBUNAL CAN INQUIRE INTO AN ELECTION IN WHICH NO RESULT WAS DECLARED ELECTING OR RETURNING ANY PERSON AT THE ELECTION

In the case of A.P.G.A. v. OHAKIM (2009) 4 NWLR (Pt.1130) p.116 at 178, this court per Shoremi JCA in his concurring decision held that the Tribunal had no jurisdiction to inquire into the election of 14/4/2007 in which no result was declared electing or returning any person at the election..PER TIJJANI ABDULLAHI, J.C.A (cross check this part)

JURISDICTION OF THE ELECTION TRIBUNAL: WHETHER THE ELECTION TRIBUNAL CAN INVESTIGATE MATTER WHICH TOOK PLACE BEFORE CONDUCT OF AN ELECTION

Election Tribunal has no power to investigate matter which took place before conduct of an election vide Ibrahim v. INEC (1993) 1 NWLR (pt.267) 120 at 129. PER TIJJANI ABDULLAHI, J.C.A

CONSTITUTION: DEFINITION OF THE WORD CONSTITUTION

Constitution is defined in Black’s Law Dictionary 7th Edition at page 306, as the fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise, also, defined in Oxford Advanced Learner’s Dictionary (International student’s Edition) New 8th Edition inter-alia as (1) the system of laws and basic principle that a State, a Country or an Organization is governed by. PER TIJJANI ABDULLAHI, J.C.A

INTERPRETATION OF STATUTE: HOW THE PROVISIONS OF A STATUTE OR CONSTITUTION IS TO BE INTERPRETED

It is instructive to note that, it is settled beyond paradvanture that in interpreting the provisions of a statute or indeed the constitution, such provisions or sections should not be read in isolation of the other parts of the statute or constitution, in other words, the statute or constitution should be read as a whole in order to determine the intendment of the makers of the statute or constitution vide Ojukwu vs Obasanjo (2004) 4 WRN 72, SC 94-95. PER TIJJANI ABDULLAHI, J.C.A

DISENFRANCHISEMENT: CIRCUMSTANCE IN WHICH IT WILL BE SAID THAT VOTERS WERE DISENFRANCHISED; WHEN A FRESH ELECTION OUGHT TO BE CONDUCTED

In the case of Ubale v. Dadiya (2008) 15 NWLR (pt.1111) 489 at 593, this court held as follows:- “Where a number of registered voters could, not vote due to no fault of theirs, it is said that they had been disenfranchised. If the number of registered voters is such that it will sway the outcome of the election one way or the other, fresh election ought to be concluded” (Underlining supplied for emphasis). PER TIJJANI ABDULLAHI, J.C.A

VALIDITY OF AN ELECTION: WHETHER IT IS THE FILLING OF FORM EC8A ALONE IS SUFFICIENT TO CONFER VALIDITY ON AN ELECTION

I am of the view that the Appellant needs to do more than tender FORMS EC8As which evidence led reveal to have been spurious unit results. In such a situation he needed to have produced credible eye witnesses who actually voted at the election, not those who merely confirmed that they did not vote. See Nwakama v. Abaribe (2010) All FWLR (pt.505) 1767 at 1800 Per Galadima JCA (as he then was); Fayemi v. Oni (2010) 17 NWLR (pt.1222) 326 at 394 Paras F-H. “It is not the filling of Form EC8A alone that confers validity on an election. All other processes must be established without which it cannot be said that there was a valid election. The benefit of electoral material serves to confirm the validity. Therefore, in the absence of voters register, evidence of accreditation and collation it cannot be said that the process of election has been complete. PER TIJJANI ABDULLAHI, J.C.A

JUSTICE

TIJJANI ABDULLAHIJustice of The Court of Appeal of Nigeria

JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria

C. N. UWAJustice of The Court of Appeal of Nigeria

PHILOMENA M. EKPEJustice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria

Between

PEOPLES DEMOCRATIC PARTYAppellant(s)

AND

CHIEF ANAYO ROCHAS OKOROCHA & 10 ORSRespondent(s)

TIJJANI ABDULLAHI, J.C.A (Delivering the leading judgment): On the 6th January, 2012, when we delivered our judgment dismissing the preliminary objections and the appeal, we reserved our reasons for doing so to a later date. We now give our reasons.
The Appellant (People Democratic party) was the Petitioner at the governorship Election Petition Tribunal, Imo State (hereinafter referred to as Election Tribunal of Tribunal) holding at Owerri, Coram Hon. Justice E.N. Kpojime, Chairman; hon. Justice M.I. Sirajo, Member; and Hon Justice E.O Osinuga, member, having been dissatisfied with the outcome of the April 26, 2011 General Election for the Governorship seat of Imo State of Nigeria conducted by the 3rd Respondent, approached the said tribunal and filed a petition wherein she averred as follows;
“A. That the 1st Respondent was not duly elected by the majority of lawful votes cast at the election.
B. It was the petitioner’s candidate Chief Ikedi Godson Ohakim that scored majority of the lawful votes cast at the said election held on 26th April 2011 and at the supplementary election held on 6th May, 2011, if valid (which is not conceded) and ought to be returned by the 3rd Respondent as the winner of the said election.
C.That the purported supplementary election held on the 6th may 2011 was invalid being in breach of the provisions and principles of the Electoral Act 2010 (as amended) and also contrary to the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended)”.
The reliefs sought are set out in paragraph 34 of the petition at page 24 – 26 of the record as follows;
“(a) That it may be determined, and thus declared, that the results of the purported supplementary elections of the 6th may 2011 announced on the 7th may 2011 and on the basis of which the 1st respondent was declared and returned as the winner of the Governorship election in Imo State, is unlawful, null and void same having been conducted 24 days before the expiration of the tenure of the last holder of the office contrary to the express provisions and principles of the 1999 constitution of the Federal Republic of Nigeria (as amended) and the Electoral Act 2010 (as amended) as well as the manual for election officials 2011.
(b) That it may be determined and thus declared that the purported supplementary election of 6th May 2011 ought not to have been conducted by the 3rd to 5th Respondents when the suit No. FHC/A/CS/464/2011 – All Progressive Grand Alliance & Anor v. INEC filed by the 1st and 2nd Respondents on 3rd may 2011 challenging the propriety of the decision to conduct the said purported supplementary election has not been determined by the court.
(c) That it may be determined and thus ordered that the results of the votes purportedly cast at the supplementary elections of 6th may 2011 be cancelled, nullified and invalidated.
(d) That it may be determined and thus declared that by the result of the 26th April 2011 Governorship election in Imo State collated after the said election the petitioner’s candidate scored the majority of lawful votes cast at the said election and ought to be returned as the winner of the said election.
(e) A declaration that the petitioner’s candidate having scored the majority of lawful votes cast at the 26th April 2011 governorship election in Imo State is the winner of the said election.
(f) That it may be determined and thus declared that the non-inclusion of the votes cast in the election held on 26th April 2011 in Oguta Local Government Area; Ohgoji/Egbeoma local Government Area and Mbaitoli Local Government Area in the computation of the final results declared by the 3rd Respondent on 7th may, 2011 is unlawful, unconstitutional, null and void, and if so included and computed in the final results the petitioner and its candidate would have emerged the winner thereof in accordance with the 1999 Constitution of the Federal Republic of Nigeria and the electoral Act 2011 9as amended).
(g) An order withdrawing the certificate of return issued to the 1st respondent by the 3rd respondent as he was wrongfully returned as the winner of the said election.
(h) An order directing the 3rd Respondent to issue certificate of Return to the petitioner’s candidate, Chief Ikedi Godson Ohakim as lawful winner of the 26th April 2011 governorship election in Imo State.”
At the conclusion of the pre-hearing session on the 5th September, 2011 and on the 7th September, 2011 the tribunal issued a pre-hearing session report which guided the subsequent course of the proceedings in the petition. In the said report, as can be gleaned from the record, the tribunal formulated two issues for determination, to wit:
I. Whether the supplementary election of 6th may, 2011 was held in compliance with the provisions of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended).
II. Whether the petitioner’s candidate scored the majority of lawful votes at the election of 26th April, 2011, and/or the supplementary election of 6th May, 2011. See pages 472-473 of vol. 1 of the Record.
The petition, needless to say proceeded to hearing wherein party adduced evidence both oral and documentary in support of their respective positions. Thereafter counsel submitted written addresses for and against the petition in line with the stand taken by each of them.
In a well-considered Judgment, the lower Tribunal held inter-alia thus:
“what we are struggling to say is that even on the petitioner’s pleading, it cannot be declared the party with the majority of lawful votes, even at the election of 26th April, 2011. The appropriate remedy in the situation created by the petitioner in his petition, even on its face value, is to ask for a bye-election, which it has not done.
For all the reasons contained in this judgment, we hold that this petition lacks merit. It is accordingly dismissed in its entirety. This is our judgment in petition No. EPT/IM/GOV/04/2011”.
Being dissatisfied with the decision of the lower tribunal reproduced supra, the Appellant filed a notice of appeal which carries 24 grounds as can be seen on pages 1095- 1114 of the record and adopted the two issues formulated by the lower Tribunal as follows:
I.   whether the supplementary election of 6th May, 2011 was held in compliance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended.) and the Electoral Act, 2010 (as amended). (Grounds a, b, c, d, e, f, g, h, k, l, m, n, o, t, u)
II. Whether the Appellant’s candidate scored the majority of lawful votes at the election of 26th April, 2011. (grounds j, p, q, r, s, v, w, x, y).
In a brief settled by Chief Adeniyi Akintola, SAN, learned senior counsel for the 1st and 2nd Respondents in addition to the notice of preliminary objection dated 15th December, 2011 but filed on 16th December, 2011, adopted the two issues formulated by the Appellant in a qualified form to wit:
1. Whether the supplementary election of 6th May,2011 was held in compliance with the provisions of the Electoral Act, 2010 (as amended); whether non-compliance with the provisions of the Constitution of the Federal Republic of Nigeria in conducting same is a cognizable complaint in election petition. (Grounds a, b, c, d, e, f, g, h, k, l, m, n, o, t, u)
2. Whether the Appellant’s candidate score the majority of lawful votes at the election of 26th April, 2011 (Grounds j, p, q, r, s, v, w, x, and y).
For his part counsel for the 3rd to 11th Respondents, filed a notice of preliminary objection on the 20th December, 2011 and in addition to it, in a brief settled by Hassan Liman Esq, SAN learned senior counsel adopted the two issues for determination as formulated by the learned senior counsel for the Appellant which I have earlier reproduced in this judgment.
At the hearing of the appeal on 6/01/2012, Chief Awa Kalu SAN adopted the brief of the Appellant, namely the Appellant’s brief dated 2gth day of November, 2011 but filed on 07/12/2011, Appellant’s reply brief dated 14th December, 2011 but filed 14th December 2011 and Appellant’s reply brief to the 3rd – 11th Respondents’ brief and urged us to allow the appear. In further adumbration of his briefs, learned senior counsel submitted that the question that needs to be answered is whether in the conduct of an election the 3rd Respondent can start an election within time and end whenever it pleases. INEC, learned senior counsel went on, started the election on 26/04/2011 within time and claimed to have concluded the election on 6/5/211, out of time. Learned senior counsel, further submitted that, the election must start within time and end on time. INEC, learned counsel further submitted was out of time by minimum of six days as testified by DW4. Learned Senior Counsel then posed this question that is; whether a child that is born can be reborn again.
The 2nd point, learned senior counsel went on, is whether an election can be postponed at the time the announcement of the results was being made. learned senior counsel further asked whether an event that has taken place can be postponed. He is of the view that pursuant to section 26 of the Electoral Act, 2010 as amended, the only power INEC possesses is to postpone an election as it is going on not after. Learned senior counsel once more urged us to allow the appeal and grant the reliefs sought by the appellant.
Chief Akintola SAN, adopted the brief of the 1st and 2nd Respondent including the argument in support of the preliminary objection incorporated in the said brief which can be seen on pages 7-10 of the same and urged us to dismiss the appeal in its entirety. In further amplification of the said brief, learned senior counsel submitted that the Reply Brief of the Appellant served on them is a re-argument of their brief not a Reply-Brief. Learned senior counsel referred to pages 6-8 of the said Reply-Brief and contended that they contained a re-argument of his main brief Again, learned senior counsel drew our attention to pages 9-13 of the said brief and contended that they contained extracts of cross-examination and review of facts. This, learned senior counsel went on, cannot be said to be a reply on points of law. We were urged to strike out the reply brief as indentified based on the authorities of this court and the apex court as contained in the cases of N.N.B Plc v. Egun (2001) 22 WRN page 29 at 42 lines 10-30; Onnuaguluche v. NDU (2001) 111 NWLR (Pt.679) page 519 at 547 and LONGE v. F.B.N. (Pt.525) at 258 especially at page 305 paragraph E-G.
Learned senior counsel also urged us to dismiss the appeal on four solid grounds which he listed as follows:
1. Assuming without conceding that there was even a time bar, their witnesses said that election did not take place in the units as indentified. Eight of their witnesses said there was no election.
2. As regards to the issue of postponement, the Appellant took cognisance of section 178  of the constitution without taking cognisance of section 179 which is more relevant to the issue at stake.
3. Section 179 of the constitution of the Federal Republic of Nigeria can be raised at any time. It is a question of law. Section 178 (1 and 2) relied upon by the Appellant does not cover time limit as does section 179.
4. By their own argument, the Appellant did not prove that they won the election by majority of lawful votes. They put two contradicting documents. Learned counsel again urged us to dismiss the appeal for lacking in merit.
Professor O. Ikpeazu, SAN, counsel for the 3rd to 11th Respondents adopted their brief dated 17/12/2011 and filed on 20/12/2011. In the said brief, as can be gleaned from the record, learned senior counsel incorporated arguments in support of the preliminary objection which can be found on pages 8 and 9. In further adumbration of the brief, learned senior counsel referred us to the case of Congress for Progressive Chnage (C.P.C.) v. INEC and 46 Ors SC 426/p2011 and urged us to take particular attention to the decision of Adekeye JSC on what a party must do in a declaratory reliefs. Learned senior counsel contended that almost all the reliefs sought by the Appellant are declaratory.
Respondent to the question posed by the learned senior counsel for the Appellant as regards to whether a child that is born can be reborn again, learned senior counsel posits that the child in the instant case was never born. It could only be born, he went on, after conclusion of the election. In support of this view, learned senior counsel referred us to section 26(1)(2) of the Electoral Act as amended and went on to contend that, at any rate INEC will only make the appointment of a date and postponement takes effect from the date the election started. To buttress his view on this point, learned counsel relied on the case of APGA v. OHAKIM (2009) 4 NWLR (pt.1130) 116 at 176, PARAS C-F.
As regards to the Reply Brief filed by the Appellant, in addition to the submissions made therein, learned senior counsel further submitted that the Appellant drew up a chart in their Reply Brief. This, he further held cannot be a reply on points of law. Learned senior counsel finally urged us to dismiss the appeal for lacking in merit.
Replying on points of law, learned senior counsel for the Appellant submitted that counsel for the 1st-2nd Respondents did not argue the preliminary of objection, notice of which is given in the brief. The appellant learned senior counsel further submitted have respondent tot he preliminary objection in paragraphs 2.00-3.00 at pages 3-6 of the Reply-Brief.
In respect of the preliminary objection raised by the 3rd to 11th Respondents, the Appellant’s learned senior counsel contended, has responded in its Reply-Brief in paragraphs 2.00 to 3.00 at pages 2-7 of the said reply brief. On whether or not his reply brief is a re-argument of his brief as orally canvassed by the learned senior counsel for the 1st and 2nd Respondents, learned senior counsel referred us to order 18 Rule 5 of the Rules of this court which says a Reply-Brief shall dear with all new points arising from the Respondent’s brief not point of law alone. Learned senior counsel referred us to order 20 Rule 5(1) and order 7 Rule (1) which make it mandatory that every objection must be in writing. He urged us to discountenance the oral preliminary objection raised by the learned senior counsel in this regard.
On section 179 of the constitution of the Federal Republic of Nigeria, learned senior counsel for the Appellant drew the attention of the court to paragraph 4.19 of the 3rd to 11th Respondents’ brief, 2.3, 2.12, 3.16 , 4.15, 4.16 and 4.17 0f the said brief where respondents conceded that election took place. Learned senior counsel further referred us to section 27 of the Electoral Act, 2011 as amended and submitted that announcing of result is different from declaration as can be seen in the said section. Again learned senior counsel urged us to allow the appeal.
As noted earlier, both 1st and 2nd set of Respondents raised preliminary objections in their respective briefs on the competence of the notice and grounds of appeal. The grounds of objection raised by the 1st set of Respondents (1st and 2nd) set out at page 1 of the notice of preliminary objection argued in the brief on page 7 to 12 are as follows:
GROUNDS OF THE OBJECTION
(1) The election petition dismissed by the tribunal, which is the foundation for this appeal, was incompetent ab initio.
(2) The election petition is statute barred by reason of having been filed outside the 21 days time limit prescribed for presenting an election petition under section 285(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended, (2nd Alteration Act), 2011.
(3) The election petition as constituted at the Election Petition Tribunal was incompetent.
(4) The incompetence robs the tribunal and the court of Appeal jurisdiction to entertain the petition.
The grounds for the preliminary objection of the 2nd set of Respondents (3rd to 11th Respondents) are:
GROUNDS OF OBJECTION
(1) Ground K of the notice of Appeal is incompetent.
(2) This honourable Court lacks jurisdiction petition pursuant to section 285(5) of the constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is instructive to state at this juncture that I shall consider the preliminary objection before going into the merit of the appeal. I shall consider the preliminary objections of the two sets of Respondents together as some of the issues raised are similar. However, before I delve into that it will not be out of place to pause a little and consider the competency or otherwise of the Reply Brief filed by the Appellant in response to the brief filed by the 1st and 2nd Respondents.
Learned senior counsel for the 1st of respondents, Akintola SAN quite rightly in my view, submitted that the Reply-Brief of the Appellant is largely a re-argument of his brief. Though learned senior counsel for the Appellant strenuously argued that a Reply Brief is meant to address new issues that may arise from the brief of a Respondent vide Order 18 Rule 5 of the Rulers of this court, a careful perusal of the reply brief of the Appellant spanning over 22 pages is a re-argument of the brief of the Appellant’s counsel to a large extent.
It is now settled that a Reply Brief as the name suggests is meant to be a reply in respect of new points that may have arisen from a Respondent’s brief. It is not an avenue through which or by which an appellant should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on point of law. See the case of Adebiyi v. Sorinmade (2004) All FWLR (239) 933 and Shuaibu v. Maithoda (1993) 3 NWLR (284) P.748.
I view of the foregoing, the Reply-Brief of the Appellant in response tot he brief of the 1st set of Respondents will be meticulously scrutinised and that any part of the said reply that run foul of order 18 Rule 5 of the Rules of this court will not be given any consideration in the determination of this appeal.
Learned senior counsel in arguing the preliminary objection raised in their brief, contended that the appellant herein, who was the petitioner at the lower Tribunal file its petition against the general election into the office of the governor of Imo State held on the 26th April, on the 27th of May, 2011.
Learned senior counsel contended that the record of the court is clear as to the declaration of result of the 26th April, 2011 election prior to the supplementary election of 6th May, 2011. This he submitted suffices for the court of Appeal to determine the competence of the petition viz-a-viz statutory limitation. See Saleh v. Mohammed (2010) 12 NWLR (pt.1209) CA, 613 at 628 Paras A-C.
It is the submission of the learned senior counsel that having asserted that the result of the 26th April, 2011 was the valid one, and the declaration of same on 27th April, 2011 as inconclusive was wrongful, the time allowed the petitioner/appellant to present a petition against the (supposedly wrongly adjudged) inconclusive declared result must be reckoned from 27th April, 2011.
Learned senior counsel went on to submit that was the date of the declaration of the inconclusive result, which the petitioner/appellant argued was wrong. This petition was however filed on 27th may, 2011. That is 31 days from the date of declaration of the 26th April, 2011 election. Learned senior counsel then submitted that the 21 days inclusive or excluding the day of the date of the declaration of the result, counting from 27th April, 2011, expired on 23rd may, 2011 vide Ibrahim v. Fulani (2010) 17 NWLR (Pt.1222) 241 at 264-266.
Learned senior counsel further submitted that the consequence of filing an election petition outside the statutory limitation period is to rob the tribunal of jurisdiction to entertain same. An appeal to the court of Appeal against the dismissal of a petition file outside the limitation period is also incompetent. The lack of jurisdiction of the Tribunal follows and attaches to the petition and all other processes arising out of it, including the appeal. He relied on David Umaru v. Aliyu (No.1) (2010) 3 NWLR (pt.1180) CA 135 at 174, to buttress his submission on this point.
After citing several authorities to buttress his stance on the preliminary objection raised in the brief, learned senior counsel urged us to hold that the instant petition on appeal filed against the declaration of 26th April, 2011 election as inconclusive, is statute barred’ and the Tribunal had no jurisdiction to entertain it. The grounds of the petition and prayers seeking to validate same are thus not cognizable by the Tribunal or his Honourable Court. The appeal against the dismissal of the statute-barred petition is also jurisdictionally incompetent. We were urged to hold that the petition and the instant appeal resultant from it be struck out.
For his part, learned senior counsel for the 3rd to 11th Respondents contended that, ground K of the Notice of Appeal and the argument flowing from the issue raise should be struck out. The Notice of Appeal where ground K can be found is at pages 1111 of 1112 of the record.
Learned senior counsel further contended that ground K related tot he ruling of the trial Tribunal delivered on 16th August, 2011 and no appeal has been filed nor leave of this Honourable Court first sought and obtained. By virtue of section 285(7) of the constitution of the Federal Republic of Nigeria 1999 (as amended) a period of 60 days is prescribed for hearing and determining appeals from the determination which has now lapsed.
Ground {K} of the Appeal (without particulars) is that the Learned Chairman and members of the Governorship Election Petition Tribunal erred in law when they failed to determine the effect of the doctrine of lis pendens on the decision of the 3rd Respondent to hold the supplementary election while suit FUC/ABJ/CS/464/2011 was pending at No. the Federal High Court, Abuja”.
The 3rd to 11th Respondents, grouse against this ground of appeal is that “Ground K of the Notice or appeal is incompetent” In his argument learned senior counsel for the 3rd to 11th Respondents contended that the ground K of the appeal relate to the ruling of the final Tribunal delivered on 16th August, 2011; that no appeal was fled against that ruling and the time (21) days stipulated by law for the filing of such appeal has since elapsed, and the Appellant did not obtain the “leave of this court to bring appeal against that decision of 16/8/11.
I do not think the learned senior counsel was altogether right in that submission. It is true that the Tribunal had overruled the Respondents on 16/8/11 when they raised the issue of the effect of suit No. FHC/ABJ/CS/464/2011 on the petition. But the issue was given life to again in the final judgment of the trial Tribunal on 12/11/2011, when it considered the issue again and affirmed it earlier position as follows:
Coming to the submission of learned counsel for the petitioner and the two sides of the Respondents as relating to the suit, the contention of the petitioner’s counsel is that the Respondents, particularly the 1st and 2nd Respondents having filed the suit before the Federal High court challenging the holding of the supplementary election, meant they believed that the said supplementary election was not held in accordance with the law, and this constitutes estoppels against the 1st and 2nd respondents. Counsel to the 3rd and 11th Respondents contends that he Petitioner having fully participated in the supplementary election of 6th may 2011, cannot now rely on the doctrine of lis pendens which will mean allowing the Petitioner to speak from both  ends of its mouth. Relying on Section 26(5) of the Act, Counsel to 1st and 2nd Respondents submit that this Tribunal lacks jurisdiction to entertain a matter relating to the postponement of an election by the 3rd Respondent. We wish to reiterate that the arguments on this i.e. the suit had earlier been ruled upon by this Tribunal and it will served no useful purpose to deliberate any more extensively on the same…”
See page 1079 of the Record.
Thus, life was breathed into that issue again as it became an issue again, for the final determination of the Petition. Ground K therefore became live, flowing from the final decision, and appeal thereon required no leave, as it became a ground of appeal from the final decision of the Tribunal pursuant to section 241(1)(a) and 242 (1) of the 1999 Constitution. See also the case of Mr. Ibiwoye A. Ayodeji 9 SNQR v. Senator Simeon Sule Ajibola & Ors (an unreported decision of this Court) in EPT/CA/IL/SEN/9/2011, delivered on 14/12/11, where we held on page 12 as follows:
“perhaps, I should add that, even if the 1st and 2nd Respondents had filed the required notice of preliminary objection as required by law, the reasons given by them for the alleged incompetence of the said grounds 1 to 13 of appeal are untenable, as the decision of the learned tribunal of 20/9/11 in the interlocutory application now forms part of the final decision of the Tribunal, which the Appellants now appeal against as the said ruling cannot be separated from the reasoning for the final decision of the Tribunal in the case, of course, the Appellants do not require leave of any court of appeal against the final decision of a high Court or Tribunal (sitting at first instance) see section 241 (1)(a) of the 1999 constitution, as amended).” (Per Mbaba JCA)
On the 2nd leg of his objection, learned senior counsel is of the view that the appellant who was the petitioner contended that she is contesting the election held on 26th April, 2011. Appellant did not accept the supplementary election of 6th May, 2011. Paragraph 13 pages 4-5 of the record list the 3 grounds upon which the petition is based. Ground b clearly shows the Appellant basis of the petition is election of 26th April, 2011 and not the supplementary election of 6th may, 2011.
As can be gleaned from the record, the learned senior counsel went on, the facts in support of the grounds and reliefs sought are in support of the election of 26th April, 2011. Learned senior counsel referred to paragraph 14 at pages 5 and 9 of the record which show the facts are based on the election of 26th April, 2011. Reliefs (d), (e), (f), (h) at pages 25 and 26 of the record all relate tot he election of 26th April, 2011, learned senior counsel further stressed.
On the premise of the above, learned senior counsel submitted that the current petition was filed outside the statutory 21 days provided by section 285(5) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and is therefore statute barred.
Now, as can be gleaned from the record, the preliminary objection raised by the respondents is essentially premised on the provision of 285(5) of the constitution of the Federal Republic of Nigeria, 1999 (as amended). The section for case of reference provides thus:
“(5) An election petition shall be filed within 21 days after the date of declaration of the result of the election.”
The provisions of the section of the constitution stated above needless to say are unambiguous and no aid are required for their interpretation. An election petition that is filed after 21 days from the date of the declaration of result is statute barred and afortiori incompetent. The question to be asked at this stage is, when was the result of the election in the appeal in hand declared? Was it on the 27th April, 2011 as claimed by the Respondent?
The answer to the question posed above is very germane the resolution of the preliminary objections raised in this appeal. It is now settled law that petition filed outside the statutory time limited for filing petition renders the petition incompetent and robs the courts of its jurisdiction even the appellate court as one cannot put something on nothing and expect it to stand vide Macvoy v. UAC (1962) AC 52; Ikharaiale v. Okoh (2009) 12 NWLR (pt.1154) 1 at 37; Ibrahim v. Fulani (2010) 17 NWLR (Pt.1222) 241 at 264-266.

This brings me to the examination of section 133(1) of the Electoral Act, 2010 as amended which reads thus:
“No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as in election petition) presented tot he competent Tribunal or Court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.”
It is crystal clear, by the provisions of the Electoral Act, reproduced supra that to have a valid and competent petition, a petitioner must satisfy the court that:
a) There was an election or a return wherein the petitioner is complaining that the election was “under” and that the return was undue.
b) The result of the election must have been declared.
c) There must be a person elected or returned.
From the records, the election of 26/4/2011 was inconclusive as no result declared electing or returning any person at the election by the 3rd Respondent (INEC) the body constitutionally empowered to conduct and declare results.
In the case of A.P.G.A. v. OHAKIM (2009) 4 NWLR (Pt.1130) p.116 at 178, this court per Shoremi JCA in his concurring decision held that the Tribunal had no jurisdiction to inquire into the election of  14/4/2007 in which no result was declared electing or returning any person at the election.
It is instructive to note that from the provisions of section 133(1) of the Electoral Act reproduced supra the grounds recognizable for purpose that are contemporaneous with the conduct of the election.
Election Tribunal has no power to investigate matter which took place before conduct of an election vide Ibrahim v. INEC (1993) 1 NWLR (pt.267) 120 at 129.
Having stated the law and all that, I now proceed to consider whether or not Election Petition filed by the Appellant at the said Tribunal is competent. Learned senior counsel for the 1st and 2nd sets of respondents strenuously argued that, the Appellant having asserted that the result of the 26th April, 2011 was the valid one, and that 27/4/2011 was the date of the declaration of the inconclusive result, time for filing the petition began to run from that date and that the petition was filed 31 days from the date of declaration of 26th April 2011 as against the 21 days allowed by the provision of section 285(5) of the constitution of Federal Republic of Nigeria, 1999 (as amended).
It is noteworthy to note that on the 26th April, 2011, no result of the election was declared electing or returning any person at the election. With respect due to the learned senior counsel, time would not begin to run from the 26/4/2011 for a filing the petition appealed against in the light of the provisions of section 133(1) of the Electoral Act, 2010 (as amended). In order to have a valid and competent petition at the risk of being repetitive, there must be an election or return whereby there was a complaint bothering on undue return, the result must have been declared and that there must be a person elected or returned. I hasten to say that though there was an election, the other ingredients of a valid election was not present in the election of 26/04/2011. This being the case, I am of the view that the  election petition filed by the Appellant after the declaration of result and return of the winner of the said election on 6th day of May, 2011 was filed within time and therefore not incompetent.
In the light of all that has been said the preliminary objections raised by 1st and 2nd set of Respondents as to the competency of the petition of the Appellant are unmeritorious and same must be and they are hereby dismissed accordingly.
In the light of the foregoing, I shall now proceed to treat the appeal on its merit. All the parties tot his appeal are ad-Idem on the issues that call for determination in this appeal save the qualified adoption of issues number 1 by the senior counsel for the 1st set of respondent.
ISSUES FOR DETERMINATION
The 1st issue for determination is whether the supplementary election of 6th may, 2011 was held in compliance with the provisions of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended). This issue is said to have been distilled from grounds a, b, c, d, e, f, g, h, k, l, m, n, o, t and u.
The 2nd issue for determination is whether the Appellant’s candidate scored the majority or lawful votes at the erection of 26th April, 2011. this issue is said to  have been distilled from ground,  p, q, r, s, v, w, x, and y.
In a brief settled by Prof. I. Okafor SAN learned senior  counsel began his consideration of the 1st issue by referring to paragraph 15 of the petition of the Appellant containing the grounds on which the petition is premised and stated therein that the said issue will be argued under the following sub-heads:-
a. The proper interpretation of section 178(1)(2) of the constitution and whether the supplementary election complied with the said provisions.
b. The import of section 26 of the Electoral Act, and whether the 3rd -11th Respondents complied with the provisions of section 26 (1-5) of the Electoral Act in holding the supplementary election.
c. Whether there were cogent and verifiable reasons pursuant to the provisions of section 26(1) of the Electoral Act for ignoring the 26/4/2011 elections in the affected three local Government of Mbaitoli ,Oguta and Ohaji/Egbema.
d. Whether elections held on 26th April 2011 in the Local Government Area of Mbaitoli, Ohaji/Egbema and Oguta.
SECTION 178 OF THE CONSTITUTION
Learned senior counsel contended that the Tribunal relying on the following cases; SPDC v. Isaih (1997) 6 NWLR (pt.508) 236l PDP v. INEC (19991) 11 NWLR (pt.626) 200 at 242; Buhari v. Obasanjo (2004) All FWLR (pt.191) 1447 at 1506; Ekuola v. CBN (2006) 14 All FWLR (pt.1000) 292 at 326 held that INEC has unfettered discretion in fixing a Governorship Election. Learned Counsel Senior urged us to hold otherwise. The applicable provisions, learned senior counsel went on, are section 178(1-2) of the constitution and section 26(6) of the Electoral Act.
As cardinal rule of interpretation, learned counsel submitted that, the words of a constitution or statute whenever plain or unambiguous must be interpreted in their literal, ordinary, or grammatical meaning except and unless it will lead to absurdity or frustrate the intention of the law maker. For this submission learned counsel relied on the cases of Chief Sergent Chidi Awuse v. Dr Peter Odili 16 NSCQR 218 at 263; The Federal Republic of Nigeria v. George Osahon & Ors 25 NSCQR 512 at 547; The Hon. Justice E.O. Araka v. The Hon. Justice Don Egbue (2003) 17 NWLR (pt.848) 1 at 25; Unipetrol Nigeria Plc v. Edo State Board of Internal Revenue 26 NSCQR (pt.1) at 211 and General Mohammed Buhari & Anor v. Alhaji M. Dikko Yusuf & Anor 14 NSCQR (Pt.11) 1114 at 1161.
Learned senior counsel contended that the holding of the tribunal that a literal interpretation of section 178 (1)(2) of the Constitution will lead to absurdity; the consequence of accepting this approach are frightening. It will mean;
That INEC:
(a) Has power to hold Governorship Election more than one hundred and fifty days (150) before the tenure of the incumbent Governor ends;
(b) To declare the results of the Governorship election after the tenure of the incumbent Governor;
(c) To start an election within the period stipulated under the constitution but drag it beyond the tenure of the incumbent Governor.
It is the submission of the learned senior counsel that limitation as to time prescribed under constitution cannot be trifled with. Not even in sympathy or out of perceived injustice or inconvenience to a party affected. The Constitution under section 285 prescribed also a period for, instituting, determining a petition, or an appeal. In recent decisions the Supreme Court has re-iterated that not even by any acrobatic interpretation could the period be extended. The cases were cited to the Tribunal but were totally ignored by it.
For the above submission, learned senior counsel place reliance on the case of Alh. Kashim Shettima & ANor v. Alh. Muhammed Goni & Ors consolidated suits SC/272/2011, SC/276/2011 decided on 31/10/2011 (unreported) and Peoples Democratic Party (PDP) v. Congress for Progressive Change (CPC) & Ors consolidated suit SC/272/2011, SC/276/2011 decided on 31/10/2011 (unreported).
Learned senior counsel submitted that from the foregoing, it is safe to postulate that an emerging, indeed a settled judicial approach is that limitation period constitutionally prescribed are sacrosanct and must strictly interpreted and applied. This approach accords with the policy behind the provisions under various Electoral Acts in force over the years, prescribing time as being of essence  in matters pertaining to elections. See Akpong Ade-Obi v. Duke & ors (no.2) 2005) 10 NWLR (pt.932) 105, 144 – 145; Ogbebor v. Danjuma & Anor (2003) 15 NWLR (pt.843) 403, 432-433; Out v. INEC (1999) 5 NWLR (pt.602) 250; Nonye v. Anyechie (1980) 2 NWLR (pt.101) 110, 118.
Learned senior counsel urged us to give the provision of section 178(1)(2) of the constitution their ordinary simple grammatical and literal meaning as it will not lead to any absurdity but will accord with the intention of the law makers to ensure that the Governorship election is concluded well ahead and before the incumbent Governor leaves office.
SECTION 26(1)(5) OF THE ELECTORAL ACT 2010 (AS AMENDED)
Learned senior counsel after restating the provisions of section 26(1)(5) of the Electoral Act, 2010 (as amended) submitted that the Tribunal below fell into error when it interpreted section 178(1)(2) of the Electoral Act. The proper approach is the reverse, that the Electoral Act should be interpreted to conform with the constitution. In Obasanjo v. Yusuf & Ors (2004) 9 NWLR (pt.877), at 144, 219. Niki Tobi JSC stated as follows:-
“legislation is an exact legislative conduct of the legislature. Where a legislation is clear and unambiguous, the court must interpret the legislation in that clear and unambiguous content and not enlarge its content to include other statutes not anticipated by the legislature in the legislation. It is a principle of legal drafting that where a legislation intends to incorporate or make cross reference to another statute, this will be clearly done in the sections of the legislation. And here, I must say that i do not see any of the sections of the Electoral Act either incorporating or mixing cross reference to the provisions of the constitution.
A court which, in the exercise of its interpretative jurisdiction, imports a statute to another statute when the enabling statute does not anticipate such importation, will be said to be making the law in a bad because by that, it is changing places with the legislature. No court can do such thing.”
It is contention of the learned senior counsel that it is apparent that the Tribunal accepting that an election is a process held that the supplementary election of 6th may, 2011 was the conclusion of a process that commenced on 26th April, 2011. Accordingly, learned senior counsel went on, it went further as follows:-
To hold that the supplementary election of the 6th May, 2011 was a separate and distinct election outside the constitutional time line, as urged on us by the Petitioner’s counsel, is to create an embarrassing anomaly that can result in vacuum in the office of governor of Imo State or cause serious crisis in the polity. See Buhari v. Obasanjo (supra).” (On page 1077 of record volume 1).
Learned senior counsel urged us to reject this approach for
several reasons, among which; the interpretation does violence to express provision used in section 178(1)(2) of constitution; section 178(2) does not allow one part of the Electoral process to commence within constitutional time frame and the other part after the constitutional time frame, that the section is clear and unambiguous that election must hold within the constitutional time; it is conceded that an election is a process involving several components i.e. accreditation, voting, recording of results, declaration of results. By the use of the word election, the constitution envisages under section 178(1)(2) that all these components constituting an election must hold within the constitutional period.
Learned senior counsel posits that, assuming for the purpose of argument that the election of 6th May, 2011 was supplementary to the election held on 26th April, 2011, the result would still be the same. It would simply translate to the fact that the election began on the 26th April, and ended on 6th May, 2011. Would that election come within the phrase “not later than 30 days before the expiration of the term of office of the last holder of that office”? The answer is an emphatic No. In the final result. He urged  us to hold that the election held on 6th may, 2011 was not held in accordance with the constitution of the Federal Republic of Nigeria, 1999, as amended, or at all. It was null and void ab initio.
WAS ELECTION OF 26TH APRIL, 2011 IN THE AFFECTED THREE LOCAL GOVERNMENT CANCELLED OR POSTPONED.
Learned senior counsel began his consideration of this sub-head by contending that it is sheer common sense that an election that ought to hold on 26th April, 2011 could not have been postponed a day after 27th April, 2011. Clearly, section 26(1) of the Electoral Act envisages the postponement coming before, or at the worst, during an election but not after the election. In any case, the Respondents themselves disagree as to whether the election in the affected three Local Governments were cancelled or postponed. See paragraphs 11 to 19 of the pleadings of 3rd to 11th Respondents, particularly paragraphs 11, 15 and 19. (page 146 – 149 of Records vol.1).
It is submission of the learned senior counsel that for a situation of an election to amount to postponement under the section, the announcement deferring the polls must be made before the commencement of the elections; of the election must have been made impossible to hold by natural disasters or similar emergencies, in any case before polling unit result is announced. However, once voting in an election is concluded and results announced at the polling centres and the various collation centres, INEC’s only remaining duty is to declare a return based on the raw votes announced at the poling centres and the collation centres.
COGENT AND VERIFIABLE REASONS
It is the contention of the learned senior counsel that the process of an election under section 26(1) of the Electoral Act cannot be truncated by INEC without “cogent and verifiable reasons”. This phrase, learned senior counsel further contended, has been explained in several decisions, though on an analogous provision under the Electoral Act, 2006 requiring a political party to furnish cogent and verifiable reasons for substituting a candidate nominated and submitted to INEC. He referred tot he cases of Amaechi v. INEC (2008) 5 NWLR (pt.1080) 227; Ugwu v. Ararume (2007) 12 NWLR (pt.1048), at pg.367; Odedo v. INEC (2009) 4 EPR 407 at pg.490; Agbakoba v. INEC & Ors (2008) 12 SC (Pt.111) 1717, to buttress his contention on this point.
Learned senior counsel re-iterates his earlier submission that INEC did not postpone but cancelled the election in the three affected LGAS and consequently, learned senior counsel went on section 26(1) of the Electoral Act did not apply. By the pleadings of 3rd -11th respondents, the reason was that election was not completed in the affected Local Government Areas on 26/4/2011 owing to wide-spread violence and thuggery which prevented the collation officers from collating or completing the collation of results in the said three local Government Areas. As judicially decided, these “reason” must be demonstrably true on their face so as to admit of any shred of uncertainty. The burden of proof rested squarely on INEC. In other words, INEC must prove (a) the wide-spread violence and thuggery and (b) that the results were not collated or were incompletely collated. INEC woefully failed to meet this burden, he further contended.
VALIDITY OF SUPPLEMENTARY ELECTION IN LIGHT OF SECTION 26(3)(4)(5).
Learned senior counsel urged us to make a determination as to the legal effect of the decision taken by the 1st and 2nd Respondents to challenge the declaration of the election held on the 6th may, 2011, and the effect of the 3rd Respondent’s decision to ignore the suit in order to conduct the election held on 6th may, 2011.
Lear senior counsel urged us to take significant cognisance of the fact that the suit in question was filed by the 2nd Respondent, that the 1st and 2nd respondents took the 3rd Respondent to the Federal High Court for the purpose of determining the lawfulness of the supplementary election and that certain documents which were received in evidence and marked Exhibit YB1, YB2 and YB3 show conclusively that the 1st and 2nd Respondents knew that an election was held in Mbaitoli, Oguta and Ohaji/Egbema local Government Areas on 26th April, 2011.
Learned senior counsel submitted that by virtue of section 26(5) of the Electoral Act, 2010 as amended, since the action of INEC to conduct a supplementary election had been challenged, INEC should have called up the poll till after the determination of the suit filed at the Federal High Court.
Learned senior counsel further submitted that the decision of INEC to hold a supplementary election while the suit was pending in court offends our laws in that it was contemptuous of a court of competent jurisdiction under the dotrine of lis pendens vide Amaechi v. INEC & Ors (2008) 5 NWLR (pt.1060) and Ugwu v. Ararume (2007) 12 NWLR (pt.1048), at pg.367. Learned senior counsel urged us to hold that the RES must be preserved. He urged us to resolve this issue in favour of the Appellant and against the Respondents.
Issue No.2 is whether the Appellant’s candidate scored the majority of lawful votes at the election of 26th April, 2011. This issues is said to have been distilled from grounds j, p, e, r, s, v, w, x, and y.
Learned senior counsel started his consideration of this issue by contending that it is the Appellant who won the election by scoring a majority of lawful votes cast at the election of 26th April, 2011 in all he local Government Areas except the three Local Government of Mbaitoli, Oguta and Ohaji/Egbema. Appellant learned senior counsel contended, tendered duplicate original of all the results of all polling units where it pleaded that election held. Additionally, it tendered certified true copies of these results in a majority of the polling units. These Forms EC8A, EC8B and EC8C being results of polling units, ward and Local Government levels. They were unchallenged he finally stressed.
Learned senior counsel contended that is was wrong for the Tribunal to hold that they did not discharge the burden placed on to prove the results of the election in the three Local Government Areas. He referred to a portion of its Judgment where the Tribunal held so and submitted that contrary to the holding of the Tribunal on this related aspect of the ease, the Appellant specifically  related each of the admitted documents to that part of its case in respect of which the document was tendered.
Learned senior counsel submitted that there was ample oral evidence by both the witnesses of the Appellant and DW4 explaining and relating the documentary evidence to the case of the Appellant. PW1 identified the duplicate results under cross-examination. Learned senior counsel further submitted that the petitioner called additional witnesses who identified the duplicate original in these Local Government Areas. DW4 on his part identified the certified true copies as having been issued by INEC, accordingly, in the light of the foregoing, learned senior counsel went on, was enough explanatory oral evidence.
Learned senior counsel attacked the finding of the Tribunal when it held that the documents were dumbed on it. Learned senior counsel is of view that the tribunal totally failed to advert tot he importance of the Electoral Forms, particularly Form EC8A tendered by the Appellant which were unchallenged. For instance, the Tribunal held that the production of these Forms without more is no proof that an election has taken place citing Fayemi v. Oni (2010) 17 NWLR (Pt.1222), 326 at 384. It even called them ‘worthless documents’ (Record Vol.1 page 1053).
Learned senior counsel repeated his submission made to the Tribunal on the important change brought about under the 2010 Electoral Act with respect to the trials of election petitions. The amendments both made in the constitution and the Electoral Act have changed the law in so far as proof in election petition is concerned. Learned senior counsel urged us to take judicial notice of this fact. This is because both the Electoral Act and the constitution have now limited the time for the hearing and determination of election petitions in a very significant manner to the extent that, the time for hearing election petition is 180 days while the time for hearing an appeal flowing therefrom is 60 days.
To buttress the above submission, learned senior counsel referred us to the proceedings of the Tribunal of 7th September, 2011 where it directed the parties to prove their petition within 14 days and each. It also allowed 15 minutes for cross-examination and 5 minutes for re-examination. The directive, learned senior counsel went on, speaks volumes about the drastic change in the legal regime. He wondered how the petitioner would have fielded over 3500 witness with regards to the polling units in the state having regard to the fact that the whole state in one constituency as stipulated in section 178(4) of the constitution.
We were urged to hold that, the constitutional amendment including the changes in that behalf, made it unnecessary for the Appellant to resort to the now antiquated method of calling witnesses from each unit for the purpose of showing that an election took place in the unit. Once a Tribunal has the duly certified election results from the different levels a sin this case, the Tribunal, learned senior counsel  went on, would be entitled to draw the inference that the results were announced at those levels in terms of the provisions of the Electoral Act vide Obun v. Ebun (2006) All FWLR (pt.327) 419.
Learned senior counsel made a summary of the results from the Three Local Government Areas as  contained in Exhibit Z1, ZA1 and QB duplicate  originals for Mbaitoli, Ohaji/Egbema and Oguta LGAS and went on to argue that if the scores as set down below as follows:-
PDP       APGA
Mbaitoli      22,522    21,852
Ohaji/Egbema    30,050    6,205
Oguta       14,052    4,260
Are then added to Exhibit UB, the re-computed total scores of the two candidates will be as follows:-
PDP       APGA
323,333    309,366
Learned senior counsel submitted that based on the above results, the Appellant has established that its candidate won a majority of valid votes cast as the Imo State Governorship election on 26th April, 2011 and the appeal should be allowed, the judgment of the lower Tribunal set aside and judgment entered for the Appellant on all its claimed reliefs. We were urged to resolve this issue in favour of the Appellant.
Learned senior counsel for the 1st and 2nd Respondents, as earlier stated therein, adopted the issues formulated by the Tribunal which other parties also adopted with a slight modification by the learned senior counsel. The 1st issue as modified by the learned senior counsel.
“Whether the supplementary election of 6th May, 2011 was held in compliance with the provisions of the Electoral Act, 2010 (as amended); whether non-compliance with the provisions of he constitution of the Federal Republic of Nigeria in conducting same is a cognizable complaint in election petition.. (Grounds a, b, c, d, e, f, g, h, k, l, m, n, o, t, u)”
Learned senior counsel after alluding to the petition of the Appellant as filed at the tribunal contended that, the said petition was hinged on an alleged breach of the constitution of Federal republic of Nigeria, 1999, (as amended) in the conduct of 6th May, 2011 supplementary election.
Learned senior counsel further contended that it is unfortunate that the misadventure of the petitioners pleading into the realm of constitutional question only serves to confuse the real issues. This is because the only cognisable ground for a valid election must be one which challenges the conduct and result of an election on any of the four grounds permitted under section 138(1) of the Electoral Act, 2010 (as amended); learned senior counsel stressed.
Learned senior counsel enumerated the ground for filing an election petition as contained in the section quoted supra and submitted that none of the above grounds accommodates a general complaint about a breach of the constitution in the conduct of an election, any complaint, as breach of provisions of the constitution must be ventilated in the appropriate forum; certainly not as an election petition. See Obi v. INEC & 6 Ors. (2007) 11 NWLR (pt.1046) 565 or (2007) 7 SC 268. He also referred to the case of Obasanjo v. Yusuf (2004) 19 NWLR (Pt.877) SC 184 PARAS E-F, to buttress his submission.
On proper approach to constitutional interpretation, learned senior counsel submitted that unlike Ordinary legislations, a constitutional provision is a living document and organic law vide A.G. Plateau State v. A.G. Federation (2006) 3 NWPR (pt.967) 359 at 361. The constitution being the organic law or Grundnorm, learned senior counsel further submitted that the provisions must be given a broad and not a narrow interpretation which do violence to it and fail to achieve its goal unless there is something in the rest of the constitution to indicate that a narrower interpretation will best carry out the object and purpose of the constitution.
It is the submission of the learned senior counsel that it is not a proper approach to interpret or construe section 178(1) and (2) of the Constitution in isolation of other relevant sections. Section 179 of the constitution is equally relevant if not more. While section 178 provides for general election as shown in the marginal note, section 179(2) anticipate and provide for situations where a governorship election is inconclusive as happened in this case.
On the construction of section 26 of the Electoral Act learned senior counsel submitted that the constitution does not provide for how an inconclusive election is to be apprehended or concluded. The legal source for that is section 26 of the Electoral Act and the INEC Manual. After setting down the INEC manual, learned senior counsel contended that the non-holding or cancellation of an election in part of a constituency is the two triggers for declaring an election inconclusive. All that is called for is to calculate the valid votes of the two leading candidates in the places where election held, and measure it with the total number of registered voters in the polling units and wards where election did not hold at all or was cancelled. If the registered voters in the affected units exceed the margin by which the candidate with highest votes is leading the candidate with the next highest votes, then, no return shall be made until a re-run election is held in the affected areas. This is to enable the eligible voters in the affected areas exercise their constitutional franchise.
It is the contention of the learned senior counsel that there is authority in support of INEC guideline even before it was incorporated into the manual. It is this codification, learned senior counsel went oh, of the principles and guide which the court had previously applied in determining whether non- compliance with the electoral laws and guideline in the conduct of the election substantially affected the result of an election as to nullify the result or part thereof. See Ubale v. Dadiya (2008) 15 NWLR (pt.1111), CA, 489 at 593. Paras E-H.
On cogent and verifiable reason, the Tribunal resolved this point emphatically in the affirmative as can be seen on page 35 of the Tribunal Judgment page at 1078 of the record. The Tribunal, learned senior counsel submitted made findings as to outright non-holding or disruption of the election by violence or threat of violence in each of the four Local Government Areas as follows:-
1. MBAITOLA LGA- the Tribunal found that the Exhibit Z1 and Z2, Form EC8C tendered by the petitioner/Appellant to prove the holding of election in the local Government Areas are self-contradictory and unworthy of belief.
2. In OGUTA LGA, the Tribunal found that the petitioner limited its case of the non holding election to 40 polling units, while conceding that election did not take place in the rest of the Local Government Areas. However the Tribunal found that all the witnesses called by the Petitioner/Appellant in respect of the local government confirmed that in their areas no election took place. See page 43 of the judgment at page 1086 of the record. Evidence of the six witnesses called by the petitioner in respect of the local Government was thoroughly reviewed. They are PW26-PW31.
Learned senior counsel went on to submit that the Tribunal rightly concluded that since none of the witnesses testified as to the holding of the erection, they merely ended up proving facts on which parties did not join issues, i.e that election did not take place in the 4o polling units. Whereas the evidence which the Appellant should have led is one showing that election held.
3. OHAJI/EGBEMA LGA learned senior counsel submitted that the Tribunal reviewed seriatim the evidence of the g witnesses called by the petitioner to prove that election held in the Local Government. These are PW9-PW17. see pages 1088 and 1089 of the record.
Learned senior counsel further submitted that 8 of the 9 witnesses testified to the effect that election did not take place. Even the 8th witness testified inconsistently and contradicted himself on the same fact. Such a witness, learned senior counsel went on, is not worthy of belief vide Adu as Gbadamosi (2009) 6 NWLR (pt.1136) 110 at 125, paras A-C.
4.  ORU WEST LGA, learned senior counsel is of the view that the case of the Petitioner/Appellant on this Local Government was a nonstarter. Rather than call evidence of the conduct of the election in the Local Government, the Appellant red evidence that went off tangent by tendering WB and XB. These Exhibits, learned senior counsel submitted Tribunal were found by the to be in respect of Awa ward 1 and Omomu ward respectively of Oru west Local Government which is not one of the Local Government in which parties joined issues. The Tribunal, learned senior counsel further submitted, rightly herd that “having failed to lead evidence in proof of its averment in entry No. 19 of table ‘A’ ” the petitioner’s pleading in respect of Oru west Local Government is deemed abandoned. See page 1084 of the record.
Learned senior counsel urged us to hold that the non-holding of the elections in the 4 Local Government Areas as adumbrated above is a cogent and verifiable reason to justify the holding of the supplementary election in contest.
Last but not the least item on this aspect of the appeal is suit FHC /A/CS/464/2011. Learned senior counsel posits that, the Appellant has harped unceasingly on the suit vis-a-vis section 26(4) of the Electoral Act. Learned senior counsel submitted that the case of Agbaso (supra) particularly citation from the lead judgment of Onnoghen JSC settled this issue. Even cancellation of election, learned senior counsel further submitted’ is a matter for election Tribunal. It is not a matter for, civil claim in the High court, he further stressed.
It is the contention of the learned senior counsel that, in any event, the so-called case was shown at the trial to have been terminated ever before the petition was presented. Furthermore, the petitioner who brought the Respondent to court cannot rely on another case which was never determined on the merit and prevent the respondent from defending the petition brought against them.
Learned senior counsel urged us to resolve the issue in their favour and against the Appellant.
The first issue for determination adopted by the 3rd – 11th Respondents at the risk of being repetitive is whether the supplementary election of 6th May, 2011 was held in compliance with the provisions of the constitution of the Federal Republic of Nigeria 1999, (as amended) and Electoral Act, 2010 (as amended). Distilled from Grounds a, b, c, d, e, f, g, h, k, l, m, n, o, t, and u)”
Learned senior counsel began his consideration of this issue by setting down the provision of section 178(1) of the constitution of Federal Republic of Nigeria, 1999 (as amended) and submitted that what is not disputed by the Appellant and it is the consensus of all the parties herein before the Tribunal is that the election of 26th day of April, 2011 was conducted in accordance with the provision of section 178(2) of the constitution of the Federal Republic of Nigeria 1999 in that the election was conducted not earlier than One Hundred and fifty days and not later than 3rd days before the expiration of the office of the candidate of the 1st Appellant (Chief Ikedi Godson Ohakim) whose term of office as the Governor of Imo State who was sworn in on the 29th day of May, 2007 was to expire on the 29th day of may, 2011.
Learned senior counsel submitted further that, the Appellant has laboured before the Tribunal to establish that the scheduled supplementary election of 6th day of May, 2orl was not necessary and consequently illegal because of what the Appellant claimed, as the conclusion of election in all the twenty seven Local Government Areas except NGOR OKPALA Local Government Area.
It is the contention of the learned senior counsel that  contrary to the position taken by the Appellant, evidence abound before the Tribunal that the election in the disputed Local Government Areas were marred by thuggery and violence to the extent that there was no conduct of election in the proper sense of the meaning of conduct of election. The evidence of Respondents’ witnesses attested to the facts of thuggery and violence which was rightly believed by the Tribunal. See the evidence of DW1-Dw4 at page 1031 – 1040 of volume 1 of the record. See also even the testimonies of the Appellant’s witnesses especially PW10 – 17 contained at pages 947 -958 and also their respective written statement on oath which are contained at pages 66-117 of volume 1 of the record, and particularly the testimony of PW26. In fact PW26 stated under cross examination at page 972 of volume 1 of the record, as follows:-
“the bottom line of my testimony is that no election took place In my unit either on the 26th April, 2011 or 6th May 2011.”
Learned senior counsel further contended that the testimony of the non conduct of election by so many of the Appellant’s witnesses clearly permeated the evidence during trial.
Learned senior counsel feels at home with the concession of the Appellant which is particularly contained at paragraph 6.18 of page 20 of the Appellant’s brief wherein the Appellant cited the authorities of APGA vs Ohakim (2009) 4 NWLR (pt.1130) 116 at 176 paras C-F and also Ojukwu vs Yar’Adua (2006) 5 EPR 792 at 9o4 and expressly agreed that election is a process. In fact my Lords this is the Appellant’s submission at page 20 of the Appellant brief of argument:-
“it is conceded that an election is a process involving several components i.e. accreditation, voting, recording of results, declaration of results…”
Learned senior counsel contended that the Appellant having conceded much as quoted above immediately derailed and put up contrasting arguments, that all these components quoted above must be done within the constitutional period. My lords, the appellant herein by its submission as per paragraph 6.18 at page 20 of its brief of argument, is only interpreting section 178(1)(2) of the constitution of the Federal Republic of Nigeria without correlation to section 26(1)(3) of the Electoral Act 2010 (as amended).
The Appellant’s grouse, learned senior counsel went on, is that, to it (the Appellant) supplementary election is not known to law and that to them the supplementary election of 6th May 2011, fall outside the requirement of section 178(2)of the constitution of the Federal Republic of Nigeria 1999 (as amended) which requires election to be conducted not later than 30 days before the expiration of tenure of the last holder of the office.
It is the contention of the learned senior counsel that in scheduling election into the office of Governor of Imo state, the 3rd -11th Respondents have fully complied with the requirement of section 178(2) of the constitution of the Federal Republic of Nigeria 1999 having fixed same on 26th April, 2011. The only point of dispute, learned counsel went on, is the Appellant’s contention that the said election should have rounded up before the expiration of 30 days stipulated in the relevant section 178(3) of the constitution.
Learned senior counsel held the view that as at the 27th April, 2011 when the 3rd Respondent scheduled a supplementary election on the 6th May, 2011 due to inconclusive and or non conduct of election in the four local Government Areas of Ngor okpala, Oguta, Mbaitoli and Ohaji/Egbema LGAS and only one ward i.e in Orji 1 ward in Owerri North local government Area of the state, by the submission of the Appellant itself, the Appellant alleged that the scores standing to the candidate of the Appellant (chief Ikedi Godson Ohakim) as well as to the 1st Respondent were respectively 310, 105, and 305, 206 i.e. the marging between them was 4,842. My lords it is abundantly clear that by the Appellant’s very pleading particularly table c, D, B and F as contained in the petition at page 11-17 of the volume 1 of the record, the total number of registered voters who did not vote stood at 45,133.
The question to be asked learned senior counsel went on, is, was the 3rd Respondent not bound to conduct supplementary election in view of the margin of 4,842 between the leading candidates vis-a-vis the standing number of 45,133 registered voters who have not cast their votes. Learned senior counsel answered the question in the affirmative and urged us to resolve the issue in the favour of 3rd- 11th Respondents and against the Appellant.
The 2nd issue for determination adopted by the 3rd – 11 Respondents, as formulated by the Tribunal is, whether the Appellant’s candidate scored the majority of lawful votes at the election of 26th April, 2011.
Learned senior counsel submitted that the issue under consideration as constituted involves two main aspects of our legal jurisprudence, one is the issue of evidence generally, and two is the issue of burden of proof. Learned senior counsel, further submitted that the burden in respect of the allegations made, never shifts from the Appellant who was the petitioner before the Tribunal vide Obun vs Ebun (2006) All FWLR ((327) p.419 at 450 paras B-C.
Consistent with the position of the law as postulated by the learned senior counsel, he posed two questions as follows:-
1. Was there credible evidence led by the Appellant to substantiate its claim.
2. Was the Appellant able to discharge the burden of proof on it to entitle it to the relief Claimed.
On the first question, learned senior counsel submitted that the Appellant was unable to lead cogent and credible evidence to substantiate its claim. This is very obvious, learned senior counsel went on, from the contradiction in the evidence of PW10- 17 which Tribunal rightly captured and evaluated at pages 1088 – 1090 of volume 1 of the records of Appeal. By a calm perusal of these pages, learned senior counsel posits sharp conflict, contradictions and inconsistencies in the evidence of PW10-17 can be seen.
Learned senior counsel after restating the evidence adduced by the appellant to support his pleadings that elections were held in the disputed Local Government Areas, submitted that the evidence of their witnesses rendered useless their averment with regard to the holding of elections in the said Local Government Areas.
It is the submission of the learned senior counsel that in an attempt to prove that election took place in some of the areas of the affected Local Governments, the Appellant tendered result sheets in the various INEC forms which the Tribunal upon evaluation concluded that the documents so tendered did not establish their case as they(documents) were merely dumped on the Tribunal as can found in the disputed local governments.
On the burden of proof, learned senior counsel, began by restating the well-known maxim of the Law of Evidence that he who asserts must prove vide section 131, 132 and 136 of the Evidence Act, 2010 (as amended) and the case of congress for Progressive change (CPC) v. INEC SC/426/2011 (unreported) delivered on 28th day of December, 2011, and submitted that, the Appellant woefully railed to discharge it.
By paragraph 1a(c)(d)-(i), of her pleadings the burden of proof rests on the Appellant but she brought in contradicting witnesses as shown earlier in their brief and dumped the exhibits on the Tribunal. It is the submission of the learned senior counsel that by their own showing, the Appellant failed to prove the averments in the paragraphs mentioned above.
Learned senior counsel submitted that the burden rested on Appellant to be prove the facts relied upon in support of disproving the supplementary election of 6th May, 2011. He submitted further that Appellant failed woefully to discharge this burden and so it has not shifted. By the averment itemized above the Appellant is expected to lead evidence of election held in such areas but the Appellant witnesses said the contrary.
It is therefore submitted, learned senior counsel went on, that the Appellant failed to discharge the burden raise in the allegation and she is the one that will fail, if no evidence was led vide section 136 of the Evidence Act and the unreported case of CPC v. INEC supra. We were urged to resolve this issue in favour of the 3rd – 11th respondent.
RESOLUTION OF ISSUES
The first issue for determination which is adopted by all the parties albeit slight modification by the 1st and 2nd Respondents as earlier reproduced in this judgment, at the risk of being repetitive is, whether the supplementary election of 6th May, 2011 was held in compliance with the provisions of the constitution r:f the Federal Republic of Nigeria, 1999 (as amended) and Electoral Act, 2010 (as amended). (Grounds a, b, c, d, e, f, g, h, k, l, m, n, o, t and u).
A good starting point in considering this issue is to start with the definition of a constitution in order to underscore how it stands tall amongst other legislations. Though it may look or sound too simplistic, the definition of the grundnorm (constitution) will go a long way in resolving the issues in dispute between the parties as the salient issue in the appeal in hand is largely predicated on the interpretation of section 178(1)-(3) of the constitution of the Federal Republic of Nigeria 1999 (as amended) and some of the sections of the Electoral Act, 2010 (as amended) which will be discussed, analysed and interpreted in the course of this judgment.
Constitution is defined in Black’s Law Dictionary 7th Edition at page 306, as the fundamental and organic law of a nation or state, establishing the conception, character, and organization of its government, as well as prescribing the extent of its sovereign power and the manner of its exercise, also, defined in Oxford Advanced Learner’s Dictionary (International student’s Edition) New 8th Edition inter-alia as (1) the system of laws and basic principle that a State, a Country or an Organization is governed by.
Now having defined what a constitution is the question to be asked is, how is it interpreted? Lest I forget, unlike ordinary legislation, a constitutional provision is a living document and organic law vide A.G Plateu state vs A.G Federation (2006) 3 NWLR (pt: 967) 359 at 361.
The constitution, needless to say, is applicable by intent to all and changing circumstances, now and in the future. It speaks to the future not to the past. It should thus be broadly and liberally interpreted as a rule, but only literally as exception and in the latter instance, only where the purpose and object of drafter cannot be otherwise served, constitution, properly understood is not a law that is susceptible to perennial, technical’ whimsical, impulsive or incessant ual changes for the purpose of addressing episodic exigencies. see A.G Ondo State us A.G Federation (2002) 9 NWLR (pt.772) 222 at 305 – 306 Paras. H-B; 382 – 383 Paras. H-B and 461 Paras. G-H.
It is instructive to note that, it is settled beyond paradvanture that in interpreting the provisions of a statute or indeed the constitution, such provisions or sections should not be read in isolation of the other parts of the statute or constitution, in other words, the statute or constitution should be read as a whole in order to determine the intendment of the makers of the statute or constitution vide Ojukwu vs Obasanjo (2004) 4 WRN 72, SC 94-95.
I shall now proceed to examine the provisions of the relevant sections of the Constitution of the Federal Republic of Nigeria 1999, (as amended) and Electoral Act, 2010 (as amended) with a view to finding out whether or not the supplementary election of 6th May, 2011 was legally conducted by the 3rd Respondent or should not have been conducted as canvassed by the Appellant.
Section 178(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 provides thus:
“178 (1) An election to the office of Governor of a state shall be held on a date to be appointed by the Independent National Electoral commission.
(2) An election to the office of Governor of a state shall be heard on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.”
All the parties to this appeal agreed that the election of 26th April, 2011 was conducted in accordance with the provision of section 178(2) of the Constitution of the Federal Republic of Nigeria, 1999 in that, it was conducted not earlier than 60 days as stipulated by the provision of the Constitution referred to above. But for reasons beyond the control of the 3rd Respondent (INBC) the election could not be concluded less than 30 days before the expiration of the term of office of the last holder of that office.
Now, a cursory look at the provision of section 178 (1)(2) reproduced supra, would leave no one in any doubt that same do not address a situation in which the 3rd Respondent found its self. A situation where an election started within the time frame and could not be concluded within the time frame as provided in the said section. Let me quickly remind ourselves that we are dealing with a Constitutional provision and we have stated herein that its provision must be interpreted broadly, liberally and in some cases with other relevant statutes in order to arrive at what the law makers would have intended. A close look at the provision of section 178 of the Constitution does not do more than prescribe the time within which the first general election is to be held. It is section 178 that deals with the incidence of the election and management of default of an emergence of a clear winner.
It is also noteworthy to observe that section 178 is silent about an election being postponed, inconclusive or being cancelled. This lacuna to my mind, is what the legislature has filled by enacting section 26 of the Electoral Act, 2010 as amended. The same lacuna is further addressed by the power conferred on INEC under section 153 of the Electoral Act, 2010 (as amended) and paragraph 15(1) of the third schedule to the constitution to make guideline and regulations.
Let me now, examine section 26(1) of the Electoral Act and provision of INEC Election manual dealing with test of inclusive election and the effect on the result of the election. I shall begin with section 26 of the Electoral Act, which provides thus:-
1. where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the election as a result of natural disasters or other emergencies, the commission may postpone the erection and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable.
The manual also provides that:
“where the margin of win by votes of the reading candidate is not in excess of the total number of registered voters of the polling station where the election was cancelled or not held there shall be no return for the election until another poll has taken place in the affected Polling Station”
Now, learned senior counsel for the Appellant strenuously argued that even though they conceded that the 3rd – 11th Respondent complied with the provision of section 178(2) of the constitution of the Federal Republic of Nigeria 1999 (as amended) having fixed the election on 26th April, 2011, he insisted that the said election should have rounded up before the expiration of 30 days stipulated in the relevant section 178(2) of the constitution.
It is appropriate at this stage to pause and examine the scores of the leading candidates at the time the 3rd Respondent declared the election inconclusive with a view to finding out whether literal interpretation of the said section 178(2) of the constitution would not have led to absurdity.
As can be gleaned from the record of Tribunal, as at the 27th April, 2011 when the 3rd Respondent scheduled a supplementary election on the 6th May, 2011 due to inconclusive  and or non conduct of election in the four local Government Areas of Ngor Okpala, Oguta, Mbaitoli and Ohaji/Egbema LGAS and only one ward i.e in Orji 1 ward in Owerri North local government Area of the state, by the submission of the Appellant itself, the Appellant alleged that the scores standing to the candidate of the Appellant (chief Ikedi Godson Ohakim) as well as to the 1st Respondent were respectively 310, 105, and 305  206 i.e the marging between them was 4,842. My lords it is abundantly clear that by the Appellant’s very pleading particularly table C, D, E and F as contained in the petition at pages l11-17 of the volume 1 of the record, the total number of  registered voters who did not vote stood at 45, 133.
The question that is begging for an answer is this, was the 3rd Respondent not bound to conduct supplementary election in view of the margin of 4,842 between the 1st Respondent and the candidate of the Appellant vis-a-vis the standing number of 45,133 registered voters who have not cast their votes?
The question posed supra must be answered in the affirmative. I am of the considered view that whatever name designated by the 3rd Respondent, whether “supplementary” “additional” “continuation” “conclusion’ and or “wind up, is a matter of nomenclature which cannot derail from the fact that ‘ what was crucial and fundamental is that, the election held aimed at ensuring that the kick started election on 26th April, 2011  was concluded. This is most especially that the 3rd Respondent has no control of the supervening circumstances involved in the process of the conduct of election which the Appellant itself conceded has so many components starting from the first stage to the final stage.
In the case of Ubale v. Dadiya (2008) 15 NWLR (pt.1111) 489 at 593, this court held as follows:-
“Where a number of registered voters could, not vote due to no fault of theirs, it is said that they had been disenfranchised. If the number of registered voters is such that it will sway the outcome of the election one way or the other, fresh election ought to be concluded” (Underlining supplied for emphasis).
As can be gathered from the record the Appellant pleaded that, the election of 26th April, 2011 was conclusive in that he scored 310, 106 votes to come first while 1st Respondent scored 305,263 votes to come second in a field of 19 candidates. See page 3-4 of the record for list of candidates and their scores. This claim was disputed by the two sets of Respondents who tendered Exhibit AE to debunk the claim of the petitioner.
It is noteworthy to observe that the petitioner/Appellant however conceded that the number of polling units where election did not take place on 26th April, 2011 were 243 spread across s Local Government Areas, namely NGOR OKPALA, OWERRI WEST, ORU EAST, OGUTA and OHAJI/EGBEMA.
It is instructive to note that the Tribunal in its wisdom accepted the evidence of the Petitioner /Appellant that the registered voters in the 243 polling units who were disenfranchised by non-holding of the election in their polling units were over 45,000. See page 49 of the judgment at page 1092 of the record. On the other hand the votes pleaded by Petitioner/Appellant as valid score at the 26th April, 2011 election (if believed, which the Tribunal did not) translates to a difference, of mere 4,843.
In the light of the foregoing it is beyond argument that the election was inconclusive, the disenfranchised voters are nine times more than the margin of victory which the petitioner claimed its candidate had over 1st Respondent, while at the same time confirming that election did not hold in 243 polling units.
Learned senior counsel for the Appellant made heavy weather of the fact that there were no cogent and variable reason which could have made the 3rd Respondent to order for the supplementary election that took place on 6/5/2011. With due respect to the learned senior counsel, their case in the lower Tribunal was that elections took place in the four disputed Local Government but the witnesses they brought in support of that claim testified to the effect that election did not take place due to violence and thugerry in the affected Local Governments.
Let me give a few examples to buttress what has been stated supra. In Mbaitoli LGA, the Tribunal found that the Exhibit Z1 and Z2 Form ECBC tendered by the Petitioner/Appellant to prove the holding of the election in the Local Government Areas are self-contradictory and unworthy of belief. See page 40 of the judgment of the Tribunal at page 1083 of the record. In Oguta LGA the Tribunal found that all the witnesses called by the Petitioner/Appellant in respect of the Local Government confirmed that in their areas no election took place. This can be found on page 43 of the judgment at page 1086 of the record.
I am of the view that the tribunal rightly concluded that since none of the witnesses testified to holding of the election, they ended up proving facts on which the parties did not join issues. The Tribunal was also right when it reasoned that tendering election results from the Bar while the witnesses testified that election did not take place amounted to dumping of documents on the Tribunal without linking them with the case by the witnesses. This is an unassailable conclusion in the light of TERAB VS LAWAN (1992) 3 NWLR (Pt.231) CA 569; ANPP VS USMAN (2008) 12 NWLR (pt.1100), CA 1.
Ohaji/Egbema Local Government, the Tribunal reviewed the evidence of the g witnesses called by the petitioner/Appellant to prove that election held in the Local Government. PW9/PW17 and held on page lo8g and 1089 of the record thus;-
“the testimonies of the 8(eight) witnesses highlighted out of the 9 (nine) witnesses called by the petition (sic) in proof of their pleading are all in support of the claim of the Respondents that erection did not hold in Ohaji/Egbema due to widespread violence which substantially affected the elections. The tribunal found in respect of the 9th witness PW9 that white he claimed that election held in the Local Government, his testimony contradicted his evidence in paragraph 7 of the witnesses deposition that he could not collect Form ECB8 where election did” not take place.” See page 1090 of the record.
The lone witness who testified inconsistently and contradicted himself on the same facts is not worthy of belief. The Tribunal rightly in my view rejected his evidence vide ADU us GBADAMOSI (2009) 6 NWLR (pt.1136) 110 at 125 where the Court held that:-
“where witnesses contradict themselves on material issue to the extent that they cast serious doubts on the case presented as a while (sic) by the party on whose behalf they testify or as to their reliability, their testimonies cannot be acted upon. Such contradictions render the pieces of evidence invalid and thus unreliable”. (underlining supplied for emphasis).Oru west LG, the case of the petitioner/Appellant on this local government was a non-starter. Rather than call evidence of the conduct of election in the local government, the Petitioner/Appellant led evidence in respect of another Local Government entirely. See page 1084 of the record.
It is instructive to note that the specific finding of fact that election did not hold in those Local Government Areas, necessitating the holding of supplementary election therat on 6th May, 2011. It is baffling how the Appellant can reason otherwise. In the light of the foregoing, I am of the considered view that, non holding of election is a cogent and veriable reason to justify conduct of supplementary election. More so when the Petitioner/Appellant who claimed that election held, called witnesses that helped to destroy its case.
On suit No. FHC/A/CS/484/2011, as can be record, the seen from the Appellant has strenuously harped on it, vis-a-vis section 26(4) of the Electoral Act, 2010 (as amended). It is pertinent to observe that whatever the grouse of the 1st and 2nd Respondents that necessitated their instituting the action, the correct position which cannot be derogated from is that such action of the 1st and 2nd Respondents does not take away the power of the 3rd Respondent (INEC) vested in section 178(1) of the constitution of Federal Republic of Nigeria, 1999 (as amended) as well as in section 26(1)-(3) of the Electoral Act (as amended).This is most especially that the Federal High court where the suit was instituted never pronounced otherwise.
In the light of all that has been said this issue is resolved in favour of the Respondents and against the Appellant.
Last but not the least issue for determination is issue number two which is whether the Appellant’s candidate scored the majority of lawful votes at the election of 26th April, 2011.
Let me start my consideration of this issue by restating the well know maxim of our law that he who asserts must prove. The burden of proof is on the person who will loose if no evidence is adduced on either side. Vide section 136 of the Evidence Act (as amended).
It is instructive to note from the on set that the Appellant’s candidate at the 26th April, 2011 general election, his failure to participate in the 6th May, 2011 election, the inescapable consequence is that all the votes added to the 1st Respondent’s scores after the 6th May, 2011 supplementary election widened by far the margin of victory recorded over the petitioner’s candidate.
The lower Tribunal after meticulous examination of evidence adduced by the Appellant to prove her claim on the issue found for the Respondents as follows:-
we hold that the petitioner has failed to prove that its candidate scored the majority of lawful votes at the election of 26th April, 2011.
Since by his own evidence, the petitioner said it did not participate in the supplementary election of 6th May, 2011, it means it cannot rely on any votes generated at the election. In any case. He has also neither pleaded or relied on any votes scored by as candidate at the said election, having held that the supplementary election conducted by the 3rd respondent on 6th Moa, 2011, was validly conducted, the votes generated thereat were therefore valid votes. These votes will therefore have to be added to the votes scored by
the parties at the election of 26tn April, 2011. By paragraph 14(e), Table A, the petitioner pleaded that it scored a total of 310,106 votes, while the 1st Respondent’s candidate scored 305,263 votes. Having not participated in the supplementary election of 6th May, the petitioners, scores will remained (sic) unchallenged as nothing has been added, to them. The votes recorded for the 1st respondent on Table A will however not remain the same as he participated at the supplementary election. Which we have declared valid. The votes it scored at the said election will have to be added, to the votes ascribed to it by the petitioner in TABLE-A.”
I am of the considered view that in the light of the evidence on the printed record the finding of the Tribunal as adumbrated above cannot be faulted in anyway.
I am also of the further view that the Appellant entrapped its case in a straight jacket. It was comfortable to rely on its judgment that election of 6th May, was valid. This was a gamble that has failed to pay off. Yet petitioner has no one but herself to blame for refusing to participate in the May, 6th, 2011 election; or for failing to challenge scores returned in favour of 1st Respondent. See Savannah Bank (Nig) ltd v. Ajilo (1989) 1 NWLR (pt.97) 305 at 354 Paras E-G.
In that case, (savannah Bank) his lordship Belgore JSC (as he then was) was unsparingly critical of chief Williams SAN of blessed memory for adopting a narrow perspective strategy for prosecuting the case. Hear him!
“the features if this appeal is that the issue based on the ground of appeal has been confined within narrow limits of interpretation of s. 34 and 22 of the Act, this is unfortunate as this court must confine its decision  to the argument of the parties. To do otherwise will amount to raising issues, suo moto for the parties, otherwise, all the equities were not canvassed. Decision in such cases as ESI v. MORUKU based on Public Lands Ordinance… would have been canvassed. Perhaps counsel will one day move further than this narrow confine this court has been placed in this case”
In the same vein, the Tribunal at page 50 of their judgment page 1093 of the record held as follows:-
“what we are struggling to say is that even on the petitioners pleading, it cannot be declared the party which majority of lawful votes, even at the election of 26th April, 2011. The appropriate remedy in the situation created by the petitioner in this petition, even on its face value, is to ask for bye-election, which it has not done. For all the reason contained in this judgment, we hold that this petition lacks merit and it accordingly dismissed in its entirety.” (underlining supplied for emphasis)
Let me point out at this juncture that, the Appellant had a primary burden of proving that valid election held on 26thApril, 2011 and had the highest number of lawful votes, after the party charged with the conduct of the election already conceded that the election was not validly conducted. The Appellant, needless to say was the person asserting the positive as far as proper conduct of the election was concerned. He would have required the evidence of presiding officers in the affected areas to establish the validity of the results.
Again, the Appellant relied on her witnesses who never conducted the election to prove the results which INEC disclaimed were valid. The facts that those results were certified and produced by INEC is non-sequitur. This is so because INEC
equally produced result of the 6th May, 2011 which nobody alleged to have been produced from units where election did not hold.
It is crystal clear, in the circumstance that the balance of probabilities were heavily weighted against the Appellant in the light of;
a) The fact that the results were merely tendered from the Bar, a la dumping.
b) Witness brought by the Appellant contradicted the claim that the election did not take place in the areas where they testified” on; get that was the purpose of calling them.
c) INEC that conducted the erection and who should ordinarily defend the results honourable owed up to their invalidity and inconclusiveness in the affected Local Government.
d) Being the party that conducted the election, whatever imperfections revealed by the said documents cannot be for the benefit of petitioner/appellant unless they contend and show that the document are not authentic. If INEC expressly admitted its failure to conduct valid election on 26th April, there cannot be any better evidence than that, which the petitioner/Appellant could lead to save the disclaimed election. See Dingyadi v. Wamako (2008) 17 NWLR (pt.1116) CA, 395 at 433 paras F-H.
e) Even the over 45,000 disenfranchised voters in the 243 polling units at which petitioner/ appellant
confirmed that election did, not hold far exceeded the margin of leading score by which petitioner claimed to have won the election of 26th April, 2011.
f)  In the circumstance, it cannot be correct to contend that the petitioner/ appellant won the election, since in such a. situation the INEC Guidelines enjoin that no candidate shall be returned until erection are herd in those 245 polling units.
In the light of the facts adumbrated above, the Appellant was grossly mistaken to have vigorously canvassed that here candidate won majority of the valid votes cast at the election in question.
I am of the view that the Appellant needs to do more than tender FORMS EC8As which evidence led reveal to have been spurious unit results. In such a situation he needed to have produced credible eye witnesses who actually voted at the election, not those who merely confirmed that they did not vote. See Nwakama v. Abaribe (2010) All FWLR (pt.505) 1767 at 1800 Per Galadima JCA (as he then was); Fayemi v. Oni (2010) 17 NWLR (pt.1222) 326 at 394 Paras F-H.
“It is not the filling of Form EC8A alone that confers validity on an election. All other processes must be established without which it cannot be said that there was a valid election. The benefit of electoral material serves to confirm the validity. Therefore, in the absence of voters register, evidence of accreditation and collation it cannot be said that the process of election has been complete.
In the light of all that has been said, this issue is resolved in favour of the Respondents and against the Appellant.
In conclusion, the two issues having been resolved in favour of the Respondents, this appeal fails and is dismissed accordingly with N50,000.00 costs against the Appellant and in favour of the 1st and 2nd respondents only.

JOHN INYANG OKORO, J.C.A.: On Friday, the 6th January, 2012, this Court took this appeal and also pronounced judgment on the same date in view of the fact that the matter was to lapse on Monday, the 9th of January 2012 and also being the date the Nigeria Labour congress fixed to commence a nationwide strike. We stated on that date that we shall give reasons for our decision in due course. Here now are the reasons we dismissed the appeal.
My learned bother Abdullahi, JCA, had obliged me before today, a copy of his judgment which he has just delivered and I completely agree with him, just as I did on 6/11/2 that this appeal lacks merit and ought to be dismissed. I however wish to add my own views on some of the issues presented for determination.
The facts of this case which have given birth to this appeal have been ably captured in the lead judgment and I do not intend to repeat the exercise here but suffice it to say that the 3rd Respondent, the Independent National Electoral Commission (INEC) fixed the 26th day of April, 2011 for the conduct of elections into the office of Governor of  Imo State which Election was conducted with the help of the 4th – 11th Respondents, amongst others. At the end of the exercise on 26/4/11, the 3rd Respondent declared the election inconclusive as elections were not held in four local government areas of Ngor-Okpala, Oguta, Mbaitoli and Ohaji/Egbema and one ward in Owerri North Local Government Area. The reason given is that there were serious widespread thurggery and violence in the affected areas.
Consequent upon the above scenario, the 3rd Respondent fixed the 6th of May, 2011for the completion of the exercise in the affected areas.
On 6th May, 2011, elections were held in the above mentioned areas except in Oguta Local Government Area. At the end, the 1st Respondent was declared winner and returned elected having scored majority of lawful votes. Dissatisfied with the return of the 1st Respondent, the Appellant fifed
its petition at the Governorship Election Petition Tribunal (hereinafter called “the Tribunal”). At the end of hearing evidence from both parties the Tribunal delivered its judgment on 12th November, 2011 wherein it dismissed the petition as lacking in merit.
Dissatisfied with the dismissal of its petition, the Appellant has appealed to this court, one of the issues submitted for determination is as follows:-
“whether the supplementary election of 6th may, 2011 was held in compliance with the provision of the constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended).”
Having perused the arguments of all the parties to this appeal, it is crystal clear that this issue can only be resolved based on the interpretation given to Section 178(1 ) and (2) of the constitution of the Federal Republic of Nigeria 1999 (as amended) and section 26 of the Electoral Act 2010 (as amended). I shall, for ease of reference, reproduce the relevant sections of the two statutes.
Section 178(1) and (2) of the constitution aforementioned states:-
(1) An election to the office of the office of Governor of a state shall be held on a date to be appointed by the Independent National Electoral commission.
(2) An election to the office of Governor of a State shall be held on a date not earlier than one hundred and fifty days and not later than thirty days before the expiration of the term of office of the last holder of that office.”
In the same view, I shall reproduce section 26 of the Electoral Act 2010 (as amended). It states:-
“26 -(1) where a date has been appointed for the holding of an election, and there is reason to believe  that a serious breach of the peace is likely to occure if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the commission may postpone the election and shall in respect of the areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is   cogent and verifiable.
(2) where an election is postponed under this Act on or after the last date for the delivery of nomination papers, and a poll has to be taken between the candidates nominated, the Electoral officer shall proceed as if the date appointed were the date far the taking of the poll between the candidates.
(3) where the commission appoints a substituted date in accordance with subsections (1) and 2) of this Section, there shall be no return for the election until polling has taken place in the area or areas affected.
(4) Notwithstanding the provision of subsection (3) of this section, the commission May, if satisfied that the result of the election wilt not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.
(5) The decision of the Commission under subsection
(4) may be challenged by any of the contestants at a court or tribunal of competent jurisdiction and on
such challenge, the decision shall be suspended until the matter is determined.”
I find it a most convenient position to start by restating the time honoured principle of interpretation of statutes.
It is a cardinal rule of interpretation that where the words of a statute or even the  Constitution are plain or unambiguous, they must be given their literal, ordinary and grammatical meaning except and unless it will lead to absurdly or frustrate the intention of the law maker.. It is the main object of statutory interpretation to discover the intention of lawmaker. See Buhari V Yusuf (2003) 14 NSCQR (pt 11) p 114 at 116; Araba v Egbue (2003) 17 NWLR (pt 848) 1 at 25, PDP v INEC (1999) 11 NWLR (pt 626) 200.
In fact the Apex court cautioned against importation of words into the statute and reiterated the principle of interpretation in the case of Buhari v. Obasanjo (2004) All FWLR (pt 191) 1 447 at 1506 where it held that -“The Constitution should never be read to say what it has not provided even though it should be liberally construed to giving meaning and effectiveness so as not to have embarrassing anomaly that can result in vacuum of any office or cause serious crises in the polity.”
With regard to Section 178(1) of the Constitution, there is no doubt that the 3rd Respondent INEC is given the duty of appointing a date for the holding of an election to the office of a Governor. It has to be noted that such appointment of a date has to be in accordance with the provisions of the Electoral Act. In other words both the Constitution and the Electoral Act are to be read and interpreted together whenever issue of appointment of date for election by INEC is concerned. I shall return to this anon.
Section 178(2) of the Constitution provides that an election to the office of Governor of a State shall be held on a date not earlier than one hundred and fifty days and not later than thirty days before the expiration of the term of office of the last holder of that office. By the ordinary meaning of the words used in the above section of the Constitution, the Independent National Electoral Commission must conduct election into the office of Governor of a state not earlier than one hundred and fifty days and not later than thirty days before the expiration of the term of office of the last holder of that office. This is a mandatory provision and is not discretionary.
Therefore, it must be complied with accordingly. see (1) Alhaji Kashim Shettima & anor. V Alhaji Mohammed Goni & ors. Consolidated suits SC 332/11, SC 333/2011 and SC 352/2011 delivered on 31/10/2011 (unreported).
(2) Peoples Democratic Party (PDP) v congress for progressive change (CPC) & ors consolidated suits SC 272/2011 and SC 276/2011 decided on 31/10/11 (unreported).
In the instant case, both the Appellants and the Respondents agree that the 26th day of April, 2011 appointed by INEC for the conduct of election into the office of Governor of Imo State satisfied the provision Section 178 (2) of the Constitution, the last holder of the said office having been sworn in on 29th May, 2007. What is however in contention is the supplementary election held on the 6th of May, 2011 in four of the 27 Local Government Areas namely:- Ngor-Okpala, Oguta, Mbaitoli and Ohaji/Egbema and also one ward in Owerri North Local Government Area. What really gave birth to the election of the 6th of May 2011 can be found in the findings of the lower tribunal on page 1078 of vol. 1 of the Record of Appeal. Referring to the evidence of DW4, particularly paragraph 12 of his sworn evidence, the tribunal believed and held that there was violence and thurggery in the four Local Government areas which prevented the holding of elections there. This is what DW4 said in paragraph 12 of his sworn evidence:-
12. That due to widespread acts of violence and thurggery in each of the remaining 4 Local Government Areas plus one ward in Owerri North L.G.A. ie Ngor okpata LGA, Oguta LGA, Mbaitoti
LGA, plus Orji ward in Owerri North LGA, the 5th Respondent had to declare the election inconclusive and the 3rd Respondent consequently ordered for a supplementary election in the 4 (tour) Local Government Areas and in the said ward.”
To the above evidence and others on the issue, the tribunal has this to say on page 1075 of the record.-
“None of these witnesses was cross-examined on the issue of violence and thurggery or even threat thereof.
This Tribunal is therefore bound to accept and act on the uncontradicted evidence of these witnesses, Even some of the petitioners witnesses testified that there was no election in their respective units on 26th April, 2011 due to disruption.”
I just need to say quickly that there is no appeal against the above finding of the Tribunal. So it stands to reason that the finding is correct that election did not hold in the four Local Government Areas aforesaid due to violence and thurggery. Based on this fact, there had to be a supplementary election which was held on 6th May 2011.
The Learned Senior Counsel for the Appellant had urged this court to hold that the limitation periods constitutionally prescribed are sacrosanct and must be strictly interpreted and applied. Also that the provision in Section 178(1) and (2) of the Constitution should be given its ordinary simple grammatical meaning as it will not lead to any absurdity but will accord with the intention of the law makers to ensure that the Governorship election is conducted well ahead and before the incumbent Governor leaves office.
It was however the submission of the Respondents that the supplementary election held on 6/5/11 was a continuation of the election of 26/4/11 and not a new one and that this was sequel to the supervening circumstances beyond the control of INEC. They contended that by virtue of section 26(4) of the Electoral Act 2010 (as amended), the 6th of May 2411 was in eye of the law, the 26th of April, 2011. They urged this court to so hold.
In trying to arrive at a conclusion on this issue, the learned trial Judges of the Tribunal had asked pertinent questions which I find very fascinating. On page 1075 of the Read, vol. 1, the court said:-
“It is also not in doubt that by the clear provisions of the constitution, there should be no vacuum in the office of the Governor at any particular point in time. What then happens if for cogent and verifiable reason(s), it was not possible to conclude an election to the office of a Governor which was commenced within the stipulated period. Should the person in the affected areas be disenfranchised, or should the incomplete process be accepted and deemed as an election having taken place, or should the occupier of the said office be allowed to continue in office since it was not possible to conclude the election process within the stated period?”
“To hold that the supplementary election of the 6th May, 2011 was a separate and distinct election outside the constitutional time line, as urged on us by the petitioner’s counsel, is to create an “embarrassing anomaly that can result in vacuum” in the office of Governor of Imo State or “cause serious crises in the polity.” See Buhari v. Obasanjo. (supra)”
I am strongly persuaded to agree with the court below that given the peculiar circumstances of this case, the Independent National Electoral Commission was right to hold the supplementary election of 6th May 2011.
There are ample evidence as found by the court below that there were widespread violence and thurggery in the four Local Government Areas and one ward aforementioned which I agree was a cogent and verifiable reason for INEC to declare elections in those areas inclusive and cancelled. This power of INEC to postpone an election is unfettered as provided for in Section 26 of the Electoral Act 2010 (as amended.) See Abudakar v Mark (2008) l LRECN 435 at 530, Fayemi v Oni (2010) 17 NWLR (pt222) 326 at388, Yahaya v Aminu (2003) 3 LRE6N, 85 at 100.
Let me state here that the 6th May, 2011 appointed by INEC for the supplementary election was literally outside 30 days to the end of the term of office of the last occupier of the office of Governor of Imo State.
But as I noted earlier, in interpreting a particular provision in a statute and where there is another statute dealing with the same subject matter, both must be read together in order to discover the real intention of the law maker. This was the view of the Supreme Court in Nigerian Army v. Aminu Kano (2010) 5 NWLR (pt 1188) 429 at 457 – 458 thus:-
“It is the general practice of the courts to read statutes on the same subject matter together. Statutes are said to be of the same subject matter where they relate to same thing or person or have common purpose.”
In the instant case, both section 178(1) & (2) of the constitution and section 26 of the Electoral Act 2010 (as amended) relate to issue of conduct of election into the office of a Governor of a state. Whereas Section 178 of the constitution empowers INEC to appoint dates for the election, the same section also states that the appointment of such date must be in accordance with the provisions of the Electoral Act. Section 26(1) of the Electoral Act empowers INEC to postpone an election where the date so appointed is marred by unforeseen adverse circumstances.
Thus where INEC appoints a date for an election as provided for under Section 178(1) of the Constitution, and it turns out that such a date is no longer feasible by reason of serious breach of the peace and it is impossible to conduct election on such a date, or may be as a result of natural disasters or other emergencies, INEC can rely on section 26(1) of the Electoral Act to postpone the Election. I think this is exactly what INEC did concerning the four Local Government Areas where massive violence and thurggery were reported. As the lower court endorsed the action of INEC, so do we in this court.
The Appellants had argued that elections had been concluded and the results known before INEC decided to declare the election inconclusive.
I do not think so. Election does not involve voting only. It is a process which involves several components such as accreditation, voting, recording of results and declaration of results. So, until result is declared, election has not been concluded. It is still in the process. No result can be known at that stage. see APGA v. Ohakim (2009) 4 NWLR (pt 1130) 166 and Ojukwu v Yar’adua (2006) 5 EPR 792. So in view of the fact that no declaration or return was made, and in accordance with section 26(3) of the Electoral Act 2010 (as amended) that election was inconclusive.
The question is, was the supplementary election of 6/5/11 unconstitutional? | do not think so especially when Section 178(2) of the constitution is read in conjunction with section 26(2) of the electoral Act 1010 (as amended). The sub section, ie (2) states that where an election is postponed under the Act, “the Electoral officer shall proceed as if the date appointed were the date for the taking of the poll between the candidates”.
Thus the election of 6/5/11 was taken as if it was done on 26/4/11. Therefore, the Governorship election which INEC appointed 26/4/11 to be conducted which is within the time allowed by S.178(2) of the constitution, though concluded on 6/5/11was done in accordance with the provisions of the 1999 Constitution of the Federal Republic of Niger,” (as amended) and the Electoral Act 2010 (as amended). For the avoidance of doubt, I strongly hold that the supplementary election of 6th April, 2011, was proceeded with as if the said date of 6th of May 2011 appointed for that purpose were the date for the taking of the poll, namely, the 26th of April, 2011 earlier appointed. In other words, that supplementary election of 6th of May, 2011 is, pursuant to section 26(2) of the Electoral Act 2010 (as
amended) deemed to have been held on 26/4/11 in which case, the requirement of the 30 days deadline by section 178(2) of the constitution was validly met by the 3rd Respondent.
Finally, I wish to state that all laws, statutes, including the constitution of the Federal Republic of Nigeria are made to regulate the affairs of the Nigerian state including its citizens and foreigners residing herein. Thus, in interpreting and giving effects to the letters therein, the circumstances of our common existence must be taken into consideration. As was held by the Supreme Court in Buhari v Obasanjo (supra) the constitution should be liberally construed to give meaning and effectiveness so as not to lead to embarrassing anomaly that can result in a vacuum of any office or cause serious crises in the polity. The decision of INEC to conduct the supplementary election is highly commended because it doused tension and brought the much needed peace to Imo state.
I shall end this judgment with an incident I read in the Holy Bible. In Matthew’s Gospel, Chapter 12, from verse g is recorded that the Lord Jesus was in the synagogue one day when a man whose hand was withered was brought to him. It was on a Sabbath day. Now Sabbath, under Jewish law was a holy day which no work including healing was allowed. Jesus asked the Jews which of them had a sheep which fell into a pit on the Ssabbath day and will not go and remove it. He nevertheless healed the sick man and declared in Mark’s Gospel, chapter 2, verse 27 in similar circumstance that “the Sabbath was made for man and not man for The Sabbath”. In the same vein, I wish to state that in interpreting our constitution, we should bear in mind that the constitution was made for us and not us for the Constitution. It is a document to guide us and not to enslave us. I say no more.
It is on this note that I agree with my learned brother Abdullahi, JCA that this appeal lacks merit and for the above reasons and the fuller ones contained in the lead judgment, I also dismiss this appeal. I abide by the consequential orders made in the lead judgment, that relating to costs, in conclusive.

CHIDI NWAOMA UWA, J.C.A.: I agree.

PHILOMENA MBUA EKPE, J.C.A.: I agree entirely with the lead judgment just delivered by my learner brother Tijani Abdullahi J.C.A. I had the privilege of reading in draft the said lead judgment. For the well articulated reasons which he has just given in the lead judgment, I too would dismiss the appeal as lacking in merit. I will however like to buttress some points in respect of the issues formulated by the Appellant in his brief of argument.
ISSUE NO. 1
Whether the supplementary election of the 6th day of May, 2011 was held in compliance with the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended).
The said supplementary election held on the 6th day of May 2010 is indeed crux of the matter. The Appellant argued that the 3rd Respondent (Independent National Electoral commission (INEC) had no vires to conduct another election in the face of the first election held on the 26th day of April 2011 where the Appellant supposedly scored the majority of the votes. The Appellant however deemed the supplementary election unnecessary and illegal and not known to law having fallen outside Section 178(2) of the constitution which reads as follows:
“An election to the office of Governor of a state shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office”
The Respondents however claim that election is a process involving several components:
1. Accreditation
2. Voting
3. Recording of results
4. Declaration of Results etc.
That the election which kick-started on the 26th day of April, 2011 was only completed on the 6th day of May 2011 having been thus delayed as a result of intervening circumstances of violence and thuggery hence the need for the said supplementary election.
Section 178 (1) and (2) of the 1999 Constitution (as amended) empowers the 3rd Respondent to
(a) Fix a date for an election
(b) Conduct an election within the time frame stipulated by the Constitution.
To my mind, an election being a process obviously has a beginning and an end. The 26th day of April 2010 was the beginning of the said election which eventually ended on the 6th day of May 2010.
The Appellant’s case is that the election of the 26th of April 2010 should be accepted as the only election while that of the 6th day of May should be jettisoned. It is however my view that the 2nd election of the 6ur day of May 2010 only serves as a conclusion of the election of the 26ur day of April 2010.
See section 26 of the Electoral Act and also a liberal interpretation of section 178(1) and (2) (as amended) where the Independent National Electoral commission (3rd Respondent) is the organ that is soley vested with the responsibility of fixing dates wherein elections are to be conducted. See the case of Obi vs. INEC (2007) 11 NWLR (pt. 1046) 560 at 634. The 3rd Respondent (INEC) on the 27th day of April 2011 only exercised its powers provided for under the constitution by fixing the 6th day of May 2011 for the holding the supplementary election in Mbaiti, Ngor Okpalla, Ohaji/Egbema and Oguta local Government Areas of Imo state for the election to the office of the Governor of Imo state which supplementary election actually held on the said 6th day of May 2011.
I further subscribe to the view that the approach the interpretation of statutes is usually that of liberalism so as not to cause absurdity. See the case of AG. Federation vs. Abubakar (2007) 10 NWLR (pt. 1041) 1 at 80-91.
For a clearer appreciation of the import of the two complementary provisions of section 178(1) and (2) of the 1999 constitution (as amended) and Section 26(1) to (3) of the Electoral Act 2010 (as amended). The said provisions must be read together.
In the case of NIGERIAN ARMY vs. AMINU KANO (2010) 5 NWLR (pt.1188) 429 at 452 – 458 the Supreme Court held thus:
“It is the general practice of the courts to read statutes on the same subject matter together. Statutes are said to be of the same subject or matter where they relate to same thing or person or have common purpose. Such statutes are read construed or applied together so that the intention of the legislature is discovered from the whole set of enactment on the same subject matter.”
From all of the above, I too resolve this issue in favour of the Respondent.
ISSUE TWO
whether the Appellants candidate scored the majority of lawful votes at the election of 26th May 2011.
The pertinent question to ask here is was the supplementary election of the 6th day of May 2011 legal and appropriate?
If the answer is in the affirmative then, the issue of lawful majority votes will pale into insignificance for the salient reasons hereunder.
The Appellant relied absolutely on the election of the 26th day of May 2011 and as a result failed to join issues on the matter of the election of the 6th day of May 2011. The Appellant therefore sinks or swims on the said election of the 26th day of April 2011. If this court holds as I do, that the supplementary election of the 6th day of May 2011 is valid then the evidence of the Respondent with regard to the said election remains unchallenged. The burden did not shift from the Appellant to prove the facts relied upon in support of the supplementary election of the 6th day of May 2011.
For the above reasons and the more detailed reasons adumbrated in the lead judgment of Abdullahi J.C.A., I too hold that the Appeal lacks merit, and I do dismiss it accordingly.
I abide by all the orders as to cost.

CHINWE EUGENIA IYIZOBA, J.C.A.: I agree.
>

Appearances

Prof. Ilochi Okafor, SAN, with him are Awa Kalu, SAN, Joe Agi, SAN, chief Olusola Oke, Chief Ifeanyi Iboko, Mike Onyeka Esq. Kenechukwu Ajie Esq, Aisha Ali (Miss), N. Nwachukwu (Miss) and W.B. Musa (Miss)For Appellant

AND

Chief Adeniyi Akintola SAN, with him are J.A. Owonikoko, SAN Folashade Aofolaju, c.o.c. Emeka – Izima Esq, Nkem Ngozi (Mrs), J.O Aigbos (Miss), Oyelami Oladoyin (Miss) F.U. Adejoh Esq, Uju Nweka (Miss), C.I. Mbaeri Esq, and Alaeto Maxwell Esq for the 1st and 2nd Respondents.
Dr. O. Ikpeazu SAN, with him are A.A. Auta Esq, P. Ozoi Lesike (Miss), and Mr. D.E. Daniel for the 3rd to 11th RespondentsFor Respondent

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