TERNA ACHIR & ANOR v. TERHEMBA TIMOTHY CHABO & ORS (2019)

TERNA ACHIR & ANOR v. TERHEMBA TIMOTHY CHABO & ORS

(2019)LCN/13819(CA)

In The Court of Appeal of Nigeria

On Friday, the 25th day of October, 2019

CA/MK/EP/HA/24/2019

RATIO

ELECTION PETITION: LAWFUL VOTES CAST AT AN ELECTION

This Court in Ejiogu v. Irona & Ors (2008) LPELR-4083(CA) at page 37 of the E-Report, per Garba, JCA, described a lawful vote cast at an election in these terms:
A valid or lawful vote to me is a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act. Once a vote cast at an election fully satisfied the requirements of the Electoral Act, then such a vote is a valid and/or lawful vote for the purposes of collating or computing the total or majority of valid votes cast at the said election. PER ONYEKACHI AJA OTISI, J.C.A

ELECTION PETITION: A PERSON WHO VOTES WITHOUT A VOTER’S CARD OR DUPLICATE OF VOTERS CARD CANNOT BE SAID TO HAVE VOTED LAWFULLY

In Agagu & Ors v. Mimiko & Ors (2009) LPELR-21149(CA) at page 71 of the E-Report, Abdullahi, JCA (as he then was) said:
A person who claims to have voted without a voter’s or duplicate of voter’s card cannot be said to have voted lawfully. Ordinarily, no person shall be served with voting paper if he failed to produce a voter’s card and his name appeared on the voters’ register. PER ONYEKACHI AJA OTISI, J.C.A

ELECTION PETITION: WHETHER AN INVALID VOTE CAN BE COUNTED OR RECKONED WITH IN DETERMINING THE WILL OF THE ELECTORATE

An invalid vote cannot be counted or reckoned with in determining the will of the electorate. A fraudulent or unlawful vote is a worthless vote that cannot advance the success of the candidate in the polls. Therefore determining if a candidate has been elected by a majority of lawful votes cast, or, if the election was marred by fraudulent or unlawful/invalid votes, is fundamental in the electoral process. PER ONYEKACHI AJA OTISI, J.C.A

ELECTION PETITION: WHEN A PETITIONER CONTESTS THE LEGALITY OF VOTES, HE MUST TENDER EVIDENCE AND CALL WITNESSES
The demand on a petitioner who contests the legality of votes cast and the subsequent result of an election has been well articulated in a number of judicial pronouncements. In Buhari v INEC (2008) LPELR-814(SC), the Supreme Court, per Tobi, J.S.C said, pages 172-173 of the E-Report:
“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too. PER ONYEKACHI AJA OTISI, J.C.A

ELECTION PETITION: WHAT THE PETITIONER MUST PROVE WHEN HE CLAIMS THERE IS OVER VOTING
Proving an Election Petition or proof of an Election Petition is not as easy as the Englishman finding coffee on his breakfast table and sipping it with pleasure; particularly in the light of Section 146(1) of the Electoral Act. A petitioner has a difficult though not impossible task.” (Emphasis supplied).
In Nyesom v. Peterside & Ors (2016) LPELR-40036(SC) the Supreme Court, per Kekere-Ekun, JSC restated what must be placed as proof of these grounds as follows: pages 51-53 of the E-Report:
The law is well settled that in order to prove over voting the petitioner must do the following:
1. Tender the voters register;
2. Tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes;
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered;
4. Show that the figure representing the over-voting if removed would result in victory for the petitioner.
See: Haruna vs. Modibbo (2004) 16 NWLR (Pt.900) 487; Kalgo v. Kalgo (1999) 6 NWLR (Pt.606) 639; Audu vs. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456; Shinkafi vs. Yari (unreported) SC.907) 2015 delivered on 8/1/2016; Yahaya vs. Dankwambo (unreported) SC.979/2015 delivered on 25/1/2016.
See also: Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC). PER ONYEKACHI AJA OTISI, J.C.A

DECLARATIONS FROM THE COURT: FOR A PLAINTIFF TO SEEK DECLARATION , HE MUST RELY ON THE STRENGTH OF HIS CASE

ELECTION PETITION: BURDEN OF PROOF IN ELECTION PETITIONS

As is the case in all declaratory actions, in election petitions, the burden of proof is always on the petitioner. He must succeed on the strength of his own case and not due to the weakness of the defence. Counsel for the 1st and 2nd Respondents had argued that in view of admissions made by the Appellants in their pleadings and on the evidence adduced, the onus of proof on the 1st and 2nd Respondents as petitioners would be discharged on a minimum of proof. This is certainly not the position of the law where a plaintiff seeks declarations. He must prove that he is entitled to the declarations sought. The law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing appropriate evidence and being satisfied with such evidence; Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC); Amaechi v. INEC & Ors (2008) LPELR-446(SC). PER ONYEKACHI AJA OTISI, J.C.A

EVIDENCE: WHEN BURDEN OF PROOF SHIFTS
“Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” (see: H. C. Black’s Law Dictionary 5th ed. P.1234). See also: Buhari v INEC (supra); Nduul v Wayo (2018) LPELR-45151(SC). PER ONYEKACHI AJA OTISI, J.C.A

EVIDENCE: THE PROPER PERSON TO TENDER A DOCUMENT IS IT’S MAKER
In Flash Fixed Odds Ltd. V. Akatugba (2009) 9 NWLR (Pt. 717) 46 at 63, the Court of Appeal re-emphasized the principle that the proper person to tender a document is its maker who alone can be cross examined on it; and that where a person who did not make it tenders it, the Court ought not to attach probative value to it since the witness cannot be cross examined on it. See Gregory Okonkwo V. The State (1998) 8 NWLR (Pt. 561) 210 at 258. This principle applies with equal force in the case. The trial tribunal had no duty to accord probative value to the mass of documents, their status as certified public documents notwithstanding. (Emphasis mine) PER ONYEKACHI AJA OTISI, J.C.A

EVIDENCE: A JUDGE IS NOT PERMITTED TO EMBARK ON AN INQUISITORIAL EXAMINATION OF DOCUMENTS OUTSIDE THE COURT ROOM

(Emphasis mine) In Omisore & Anor v. Aregbesola & Ors (supra), (2015) LPELR-24803(SC) at page 67 of the E-Report, the Supreme Court, per Nweze, JSC said: it has long been settled that a Judge is not permitted to embark on an inquisitorial examination of documents outside the Court room. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure. PER ONYEKACHI AJA OTISI, J.C.A

ELECTION PETITION: AN ALLEGATION THAT AN ELECTION DID NOT HOLD: HOW TO PROOF

Following a long line of established judicial pronouncements on this issue, this Court, per Georgewill, JCA in PDP v. Ali & Ors (2015) LPELR-40370(CA) at pages 127 – 129, held:
In law an allegation that an election did not hold or that voters did not vote in an election is not a child’s play and certainly not proved by mere allegation and by calling as witness a person who merely testifies that he was a party agent in the affected polling unit. The proof required of a party alleging no election has been well settled in a long line of decided cases, both of this Court and the Supreme.
In all those cases, the common trend in proof of no election or no voting is that the party so alleging must produce the voters’ register of the polling unit in evidence and also call as witnesses, persons who are registered voters who went with their voters cards to the polling unit but were not allowed to vote or could not vote for variety of reasons and to tender their voters’ cards in evidence. It is definitely not enough to merely allege that voting did not take place and leave the Respondent to battle to prove that voting indeed took place. PER ONYEKACHI AJA OTISI, J.C.A

JUSTICES:

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria

Between

1. TERNA ACHIR
2. PEOPLE DEMOCRATIC PARTY (PDP) – Appellant(s)

AND

1. HON. TERHEMBA TIMOTHY CHABO
2. ALL PROGRESSIVE CONGRESS (APC)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

ONYEKACHI AJA OTISI, J.C.A (Delivering the Leading Judgment): This appeal is against the judgment of the National and State Assembly Election Petition Tribunal, sitting at Makurdi, Coram Hon. Justice A. A. Adeleye, J; Hon. Justice C.M. Ken-Eze, J. and Hon. Kadi A.A. Mammadi, (the trial tribunal), and delivered on September 3, 2019, in which the election petition filed by the 1st and 2nd Respondents was granted.

The facts leading to the petition are as follows: In election for the seat of Member, Benue State House of Assembly representing Gboko West Constituency, conducted by the 3rd Respondent on March 9, 2019, the 1st Appellant, who was sponsored by the 2nd Appellant, was declared by the 3rd Respondent as the winner. He polled 7,883 votes against the 1st Respondents 7,570 votes. The 1st Respondent was sponsored by the 2nd Respondent.

Dissatisfied with the outcome of the election, the 1st and 2nd Respondents filed a Petition before the trial tribunal. Their main grouse was that the provisions of the Electoral Act, 2010, as amended, the Guidelines and Regulations for the elections as well as the Manual for Elections Officials, 2019 were not complied

with in that the smart card reader was not used in some polling units, there was over voting, and the margin of lead principle was not applied by the 3rd Respondent notwithstanding that the margin by five polling units which were cancelled was 2472. The 1st Appellant filed a Reply to the Petition, including a Notice of Preliminary Objection. The 2nd Appellant also filed a Reply to the Petition, including a Notice of Preliminary Objection. The 1st and 2nd Respondents filed Replies thereto. The 3rd Respondent filed its Reply to Petition, and also raised a Preliminary Objection to the Petition. The 1st and 2nd Respondents filed a written address in opposition to the Preliminary Objection, to which the 3rd Respondent filed a Reply on points of Law.

The 1st and 2nd Respondents had challenged the election of the 1st Appellant on the following grounds:
(1) That the 1st Respondent was not elected by majority of lawful votes cast at the election.
(2) The election of the 1st Respondent was rendered invalid by corrupt practices and non-compliance with the Electoral Act, 2010 (as amended), and APPROVED GUIDELINES AND REGULATIONS FOR THE CONDUCT

OF 2019 GENERAL ELECTIONS.

The 1st and 2nd Appellants had filed two Motions on Notice challenging, among other issues, the competence of Ground 2 of the Petition. The 1st and 2nd Respondents filed a counter affidavit in opposition to these two Motions while the 1st and 2nd Appellants filed a Reply on Points of Law. While delivering its decision on the petition, the trial tribunal ruled on the competence of the Petition as follows, page 420 of the Record of Appeal:
By the principle of stare decisis, the tribunal is bound to follow the decision of the apex Court in Ojukwu v YarAdua (2009) 12 NWLR (pt 1154) 50, a Supreme Court decision, followed in Muhammed & Anor v Abdullahi & Ors (2015) LPELR-40632 (CA), to the effect that a pleader is expected to use the exact language of the Electoral Act without addition to, or subtraction from.
Consequently, addition of the wordings Approved Guidelines and Regulations for the conduct of 2019 General Elections to the second ground of the petition, is outside the colour of Section 138 of the Electoral Act. Ground 2 of the petition due to its incompetence, is hereby

struck out.
Prayers 1 and 2 of the application is resolved in favour of the petitioner/respondents. Prayer 3 succeeds on the basis of the incompetence of ground 2 of the petition and same is hereby struck out.

The trial tribunal however proceeded to consider the petition on its merits, assuming we are wrong on this ruling, and held that the 1st Appellant was not elected by majority of lawful votes cast at the election to the Gboko West Constituency, conducted by the 3rd Respondent on 9/3/2019. It further held as follows page 449 of the Record of Appeal:
Consequent upon cancellation of results in five polling units, as a result of cancellation due to disruptions, or non compliance with the provisions of the extant laws by officials of INEC, the 3rd Respondent in this petition who should have re-scheduled new dates for elections to the affected areas, but failed to so do is hereby ordered that INEC the 3rd Respondent shall announce new dates within thirty (30) days from today for elections to be held in the affected polling units at:
– L.G.E.A Primary School, Dul
– L.G.E.A. Primary School, Vanam

– Market Square Anuhundu
– L.G.E.A. Primary School Foga, and
– Market Square Ande.

Aggrieved by this decision, the 1st and 2nd Appellants lodged this appeal by Notice of Appeal filed on 3/9/2019, pages 451, 465 of the Record of Appeal.

Briefs of argument were exchanged by the parties, pursuant to the Rules. At the hearing of the appeal on 14/10/2019, T.T. Hyundu, Esq., with B.A. Iorheghem, Esq., and G.A. Enweluzor, Esq., adopted the 1st and 2nd Appellants Brief filed on 24/9/2019 as well as the 1st and 2nd Appellants Reply Brief filed on 2/10/2019. The Court was urged to allow the appeal. Jonathan Akeme, Esq., with F.T. Kusugh, Esq., V.S. Asen, Esq., R.C. Owualah, Esq. adopted the 1st and 2nd Respondents Brief filed on 29/9/2019 and urged the Court to dismiss the appeal. O.P. Ogar, Esq., holding the brief of Saka A. Isau, SAN, adopted the Brief of the 3rd Respondent filed on 2/10/2019 but curiously, urged the Court to allow the appeal.

As a preliminary point, the submissions made for the 3rd Respondent need to be addressed. The 3rd Respondents Brief, which was settled and filed by learned

Senior Counsel, Saka A. Isau, SAN concluded with the following plea:
We urge the Honourable Court to allow this Appeal and set aside the decision of the Lower Tribunal and the consequential orders in the interest of Justice.
With respect to the learned Senior Counsel, the Court notes that this submission is by no means in consonance with the accepted and established role of a respondent, which is to defend the judgment appealed against, except where he has filed a cross appeal, Adefulu v Oyesile (1989) 12 SC 43, (1989) LPELR 91(SC); Cameroon Airlines v Otutuizu (2011) LPELR 827(SC); Emeka v Okadigbo (2012) LPELR-9338(SC). The settled traditional duty of a respondent in an appeal is to defend a judgment. This role is played out either by filing a respondent’s notice or by filing a cross appeal, which are distinct processes. A cross appeal is, to all intents and purposes, as an appeal filed by an aggrieved respondent, after the other party has appealed. A respondents notice is filed where the respondent desires to retain the judgment appealed against but seeks to have it varied or affirmed on grounds other than those relied upon by

the lower Court; Ogunbadejo v Owoyemi (1993) 1 SCNJ 148, (1993) 1 NWLR (PT. 271) 517; (1993) LPELR-2321(SC). Where a respondent seeks a complete reversal of the decision of the lower Court, as the 3rd Respondent appears to seek herein, he should file a cross-appeal. See also:Peoples Democratic Party v. Oranezi & Ors (2017) LPELR-43471(SC); Itodo v. Olofu & Ors (2010) LPELR-4342 (CA); St. Peter Parish Makurdi V. Registered Trustees of Deeper Life Bible Church & Ors (2018) LPELR-45892(CA).
The 3rd Respondent that neither filed a cross appeal nor a respondents notice can, by settled law, only respond to the questions raised by the Appellants. He cannot in his response to an appeal urge the Appellate Court to allow the appeal. The submissions of Senior Counsel for the 3rd Respondent are therefore incompetent and shall not be countenanced.

The Appellants distilled three issues for determination:
1. Was the Tribunal right and correct in law to have relied on Ground 1 to sustain the Petition and then to have proceeded to make findings against the Appellants, after it had struck out Ground 2 thereof for lack of competence?

[Grounds 1, 2 and 11 of the Grounds of Appeal]
2. Was the Tribunal right and correct in law to have refused to strike out paragraphs 27, 28, 29, 30, 31, 32 and 33 of the Petition and then to have proceeded to utilize same to make adverse findings against the Appellants? [Ground 3 and 4 of the Grounds of Appeal]
3. Did the Tribunal use the correct legal criteria and did it rely on admissible/probative evidence to arrive at its verdict in this Appeal? (Grounds 5, 6, 7, 8, 9, 10 and 12 of the Ground of Appeal)

Mr. Akeme for the 1st and 2nd Respondents also formulated three issues for determination of the appeal, as follows:
1. Whether the Tribunal was right and correct in law to have relied on Ground 1 to sustain the Petition and make findings there-from (Distilled from grounds 1, 2 and 11 of the Grounds of Appeal);
2. Whether or not the Tribunal was right and correct in law when it maintained and refused to strike out paragraphs 27, 28, 29, 30, 31, 32 and 33 of the Petition (Distilled from grounds 3 and 4 of the Grounds of Appeal)
3. Whether upon the pleadings, evidence and circumstances of the Petition, the Tribunal did properly

evaluate the evidence oral and documentary and therefore arrived at a just decision. (Distilled from grounds 5, 6, 7, 8, 9, 10 and 12 of the Grounds of Appeal).
These issues seek similar determinations, though differently worded.

The 1st and 2nd Respondents had filed a cross appeal against the decision of the trial tribunal striking out ground 2 of the petition. The decision on the cross appeal has been delivered, affirming the decision of the trial tribunal. That being the case, what remains relevant in this appeal is to see whether ground 1 was proved by the 1st and 2nd Respondents as petitioners. Therefore, I shall adopt the issues as framed by the Appellants and determine the said issues together.

Issues 1, 2 and 3
Ground 1 of the petition of the 1st and 2nd Respondents was:
That the 1st Respondent was not elected by majority of lawful votes cast at the election.

It was argued for the Appellants that the trial tribunal having struck out ground 2, ought not to have relied on the pleadings and evidence adduced in respect of the struck out ground 2 to make various findings of non-compliance with provisions of the Electoral Act;

the provisions of Exhibit P4, a certified true copy of Manual for Election Officials 2019, and of Exhibit P3, a certified true copy of the Regulations and Guidelines for the conduct of elections. Having struck out ground 2, the trial tribunal became functus officio to proceed with the petition on the surviving ground 1 as there were no facts pleaded in the petition to support it. On when a Court becomes functus officio, the case of Stirling Civil Eng. (Nig.) Ltd vs. Yahaya (2005) 11 NWLR (Pt. 935) 181 S. C. was cited and relied upon. It was further contended that the trial tribunal lacked jurisdiction to proceed with the petition having become functus officio. Its continued proceedings were a nullity; relying on Nnalimuo v. Elodumuo (2018) 8 NWLR (Pt. 1622) 549 at 556D-E S.C. By these further steps taken by the trial tribunal, the Appellants had suffered a miscarriage of justice.

Learned Counsel also submitted that the trial tribunal had utilized a wrong procedure and relied on evidence that was lacking in probative value to arrive at its decision now on appeal. Firstly, the 1st and 2nd Respondents pleaded and testified through PW1, the 1st Respondent,

that the total number of registered voters affected in the five polling units where election allegedly did not take place was 2,427. No other witness gave evidence of this figure. The trial tribunal initially agreed that 2,427 was the total number of registered voters alleged by the 1st and 2nd Respondents to have been affected in the 5 polling units, but then changed the figure to 1,921 in its judgment. This figure did not come from the evidence before the trial tribunal but from its private examination of Exhibit P1 (1-3 series). It was submitted that this amounted to cloistered justice, more so as that set of documents was dumped on the trial tribunal from the Bar, contrary to settled principles of law. Certified public documents must be tendered by their makers, who should also speak to them in their oral evidence, to enable cross-examination. Reliance was placed on Sa’eed v Yakowa (2013) 7 NWLR (Pt. 1352) 124 at 149F – 151B S.C.; Belgore v. Ahmed (2013) 8 NWLR (Pt. 1355) 60 at 100 S.C. Counsel for the Appellants complained that the Supreme Court decision in Belgore v. Ahmed (supra) which was commended to the trial tribunal, was ignored as it seemed

to have resolved not to follow it, but relied instead on a decision of this Court, Gboyega Bakare v FRN (2016) LPELR-41361(CA). It was because the trial tribunal attached probative value to Exhibit P1 (1-3 series), contrary to the admonition of the highest Court of the land, that it arrived at its decision nullifying the 1st Appellants election and ordering fresh polls in the said five polling units. Without those Exhibits, or without attaching any probative value to them, the 1st and 2nd Respondents case would have collapsed without much ado. The Court was urged to set aside the judgment of the trial tribunal as Exhibit P1 (1-3 series) lacked probative value.

It was further contended that the following finding of the trial tribunal at page 439 of the trial tribunal was not the case: Portions of exhibits P1 (1-3 series) were demonstrated before the tribunal during trial.

No portion of the Record of Appeal would reveal that this took place. All INEC documents were tendered from the Bar without objection. None of the witnesses of the 1st and 2nd Respondents identified Exhibit P (1 – 3) series or demonstrated its contents. It was

argued that even if the said Exhibit P1 (1- 3 series) was demonstrated through some of the witnesses called in the matter, which was not conceded, they were not the makers thereof, and such effort could yield no positive in law. Reliance was placed on the decision inNyesom v Peterside (supra).

Apart from infringing on the settled legal position that a Judge should not privately visit documents tendered and admitted before him to rake up facts that did not come from the evidence demonstrated in open Court, citing ACN v. Lamido (2012) 8 NWLR (Pt. 1303) 560 at 592, the action taken by the trial tribunal amounted to relying on evidence that was contrary to the pleadings of the Petitioners. Evidence on facts not pleaded goes to no issue, even if it was not objected to; relying on Alhassan v. Ishaku (2017) ALL FWLR (Pt. 866) 209 at 267. On the symbiotic relationship between pleadings and evidence, the decisions in A.C.N v. Nyako (2013) All FWLR (Pt. 686) 424 at 466 S.C.; Omisore vs. Aregbesola (2015) ALL FWLR (Pt. 813) 1673 at 1743E-F, were cited and relied upon.

Another aspect of the judgment of the trial tribunal that is contended to have resulted

to a miscarriage of justice against the Appellants was that the burden of proof which rested squarely on the 1st and 2nd Responded to prove their Petition was not discharged. In an election petition, the burden of proof is squarely on the Petitioner, who would fall if he cannot discharge this burden; and that the Respondents would be under no obligation to call evidence in rebuttal if the Petitioner has not been able to discharge that burden. Nyesom v. Peterside (supra); and Ucha v. Elechi (2012) ALL FWLR (Pt. 625) 237, (2012) 13 NWLR 9Pt. 1317) 330 S.C. were cited and relied upon.

Further, none of the witnesses spoke to the documents tendered from the Bar by the Petitioners Counsel; and none also gave evidence about the number of voters affected by the alleged disenfranchisement, except the 1st Respondent, who lacked competence to give such evidence. The voters registers Exhibits P10, P11, P12 which would have confirmed non-voting, were disparaged by the trial tribunal as having not been activated by evidence, and the purport of tendering them not demonstrated. No evidence value has been ascribed to them. Having failed to prove their

petition, it ought to have been dismissed. The Court was urged to resolve these issues in favour of the Appellants and against the 1st and 2nd Respondents.

For the 1st and 2nd Respondents it was submitted that although the trial tribunal heard the petition on the merit on the two grounds, it sustained the petition on ground 1. It was argued that the petition that was before the trial tribunal did not require strict but minimum proof. The facts in support of the two grounds of the Petition were already established. The trial tribunal heard oral evidence adduced by and elicited from witnesses that to confirm the cancellation of elections in the five polling units as indicated in Exhibits P1-1, P1-2 and P1-3. The trial tribunal relied on the facts already established by admissions and evidence adduced at the trial in reaching its findings and conclusion. It was submitted that the truth or the content of Exhibits P1-1, P1-2 and P1-3 was not in dispute which would ordinarily render them provable by mere production.

The decision of this Court in Mr. John Ebeh Uzu & Anor v. Anthony Ikechukwu Ogbu & Ors (CA/E/EPT/63/2011) [2012] NGCA 9 was

relied on to submit that the issue as to whether a person was elected by majority of lawful votes could be rested on undisputed documentary evidence. It was argued that a candidate in an election who was declared and returned elected, but without the votes of majority of eligible registered voters in his constituency, cannot be said to have been elected by majority of lawful votes cast in the election. On the purport of the phrase ‘duly elected’, the case of Hon. Faleke v Independent Electoral Commission (INEC) & Anor (2016) 9 SCNJ 1 at 106.

It was further submitted that scrutiny of the paragraphs of the Petition will reveal that the striking out of ground 2 did not in any way extinguish the averments upon which ground 1 rested. The averments in paragraphs 12 to 34 of the Petition are mere illustrations, references and expositions of the facts that led to the decision taken by the 3rd Respondent to cancel polls in five polling units. That it was immaterial that in some of these paragraphs words such as ‘malpractices’, ‘irregularities’, ‘non-compliance’, thugs etc were employed. These paragraphs allude to disenfranchisement of voters in polling units

where elections were already cancelled.

It was argued that the trial tribunal had properly evaluated the evidence and applied the relevant laws. The trial tribunal did not utilize a wrong procedure to arrive at its decision. The evidence adduced by the witnesses of the 1st and 2nd Respondents was not discredited under cross examination. The evidence elicited from witnesses for the Appellants was also relied on to submit that were evidence of witnesses of a party supports the case of the adverse party, the former could rely thereon; citing Adeyemo Onifade v Muslim Raheem Oyedemi (1999) LPELR-CCN/1/2/99 at page 21.

It was further argued that the documents tendered by the 1st and 2nd Respondents spoke for themselves and were demonstrated before the trial tribunal. The documents, Exhibits P1-1, P1-2 and P1-3, had boldly written on the face of each its identity. The exhibits were also demonstrated through the Appellants witnesses, RW1-1 and RW1-4.

Only three voters registers were made available to the 1st and 2nd Respondents, Exhibits P10, P11 and P12. It was submitted that the failure by the 3rd Respondent to make available the

voters registers for two other polling units amounted to withholding evidence, relying on Section 167(d) of the Evidence Act, 2011; Fayemi v Oni (2011) 9 EPR 167 at 236 – 237. It was further submitted that Exhibits P1-1, P1-2, and P1-3, as well as P10, P11 and P12 were public documents that speak for themselves. The Court was invited to examine the said Exhibits. It was argued that the documents were not merely dumped on the trial tribunal. That the trial tribunal had the duty to evaluate the probative value of documents tendered before it, relying on Section 83(1) of the Evidence Act; Awuse v Odili (2005) 16 NWLR (PT 952) 416 at 510, and other authorities. The Court was finally urged not to disturb the findings of the trial tribunal but to dismiss this appeal.

I shall refer to the arguments in the Appellants Reply Brief to the 1st and 2nd Respondents Brief, as may be necessary hereunder.

Resolution
Ground 1 of the petition complained:
(1) That the 1st Respondent was not elected by majority of lawful votes cast at the election.
The process at an election commences with the process of accreditation. The intending

voter presents his voters card to the Presiding Officer at the polling unit in the constituency where he is registered. When the Presiding Officer confirms that his name is on the voters register, he issues him with a ballot paper and then indicates on the voters register that the person has voted; Section 49 of the Electoral Act. Where there has been no accreditation of voters in a polling unit, then no lawful vote has been cast in that polling unit; Chuka v. Ikechukwu & Ors (2015) LPELR-40443(CA); PDP v. El-Sudi & Ors (2015) LPELR-26036 (CA). This Court in Ejiogu v. Irona & Ors (2008) LPELR-4083(CA) at page 37 of the E-Report, per Garba, JCA, described a lawful vote cast at an election in these terms:
A valid or lawful vote to me is a vote cast at an election by a registered and duly accredited voter, which is in compliance with the provisions of the Electoral Act. Once a vote cast at an election fully satisfied the requirements of the Electoral Act, then such a vote is a valid and/or lawful vote for the purposes of collating or computing the total or majority of valid votes cast at the said

election. In Agagu & Ors v. Mimiko & Ors (2009) LPELR-21149(CA) at page 71 of the E-Report, Abdullahi, JCA (as he then was) said:
A person who claims to have voted without a voter’s or duplicate of voter’s card cannot be said to have voted lawfully. Ordinarily, no person shall be served with voting paper if he failed to produce a voter’s card and his name appeared on the voters’ register.
See also: PDP & Anor v. INEC & Ors (2012) LPELR-8424(CA). A vote is thus valid and lawful when it is cast in compliance with these provisions. A fraudulent or unlawful vote is one that is cast outside the provisions of Section 49. That is to say, a vote cast without proper accreditation of the voter or votes purportedly cast without regard to or in excess of the number of persons on the voters register is invalid.

election was marred by fraudulent or unlawful/invalid votes, is fundamental in the electoral process.
The demand on a petitioner who contests the legality of votes cast and the subsequent result of an election has been well articulated in a number of judicial pronouncements. In Buhari v INEC (2008) LPELR-814(SC), the Supreme Court, per Tobi, J.S.C said, pages 172-173 of the E-Report:
“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an eye witness. No. They must be eye witnesses too.
Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the

subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and the recording of the votes; wrong doings and irregularities which affected substantially the result of the election. Proving an Election Petition or proof of an Election Petition is not as easy as the Englishman finding coffee on his breakfast table and sipping it with pleasure; particularly in the light of Section 146(1) of the Electoral Act. A petitioner has a difficult though not impossible task.” (Emphasis supplied).
In Nyesom v. Peterside & Ors (2016) LPELR-40036(SC) the Supreme Court, per Kekere-Ekun, JSC restated what must be placed as proof of these grounds as follows: pages 51-53 of the E-Report:
The law is well settled that in order to prove over voting the petitioner must do the following:
1. Tender the voters register;
2. Tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of

actual votes;
3. Relate each of the documents to the specific area of his case in respect of which the documents are tendered;
4. Show that the figure representing the over-voting if removed would result in victory for the petitioner.
See: Haruna vs. Modibbo (2004) 16 NWLR (Pt.900) 487; Kalgo v. Kalgo (1999) 6 NWLR (Pt.606) 639; Audu vs. INEC (No.2) (2010) 13 NWLR (Pt.1212) 456; Shinkafi vs. Yari (unreported) SC.907) 2015 delivered on 8/1/2016; Yahaya vs. Dankwambo (unreported) SC.979/2015 delivered on 25/1/2016.
See also: Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC).

Evidence elicited from witnesses of the 1st and 2nd Respondents is, in summary, as follows: PW1 was the 2nd Respondents agent for Du polling unit. He testified that there was no election held in the Polling Unit. PW2 was the 2nd Respondents agent for Anuhundi Market Square polling unit. He testified that there was accreditation and voting at the polling unit. But at the stage of counting, some armed political thugs violently collected the ballot boxes and set them ablaze. PW3 was the 2nd Respondents agent for Market Square Ande

Polling Unit. He testified that the card reader failed and the presiding officer resorted to manual accreditation but the people protested. Elections were then cancelled at the Ward Collation Centre. Under cross examination, he said he did not personally vote but that other voters were accredited and that they cast their votes. PW4 was the 2nd Respondents agent for Foga Polling Unit code 004. He testified that the card reader failed. The Presiding Officer directed that there should be manual accreditation and voting. But, that the outcome of the election was cancelled. His cross examination by Counsel for the Appellants was rather conflicting. He said that voters cast their votes at Foga on the election day. He did not sign the result. He said there was a crisis. Then he said that the conduct of the election was free and fair. When cross examined by Counsel for the 3rd Respondent, PW4 said he did not know the number of votes that each party scored but admitted that the voters register was used for accreditation. PW5 was the 2nd respondents Ward Collation agent. He testified that the 3rd Respondents agent relocated the collation

centre to Gboko when thugs infiltrated the centre at Akpagher. Collation of twenty three polling units was done, leaving five polling units for which their Polling Officers were not seen. The Officers appeared the next day. When thugs infiltrated the centre again and the 3rd Respondents officials moved collation again to Makurdi. He had no access to the place where collation was completed in Makurdi and did not sign the final result. PW6 was the 1st Respondent. He testified in line with his petition. He said that the 1st Appellant had scored a total of 7, 570 valid votes cast in his favour while he scored 7, 257 valid votes. The margin of lead between them was 313 votes. He testified that in five Polling Units were the elections were cancelled the registered number of voters was 2, 427. In a further statement on oath, PW6 testified that the cancellation in the five polling units was as a result of either violent disruptions before the election commenced or results announced; or, as a result of malfunctioning and non-use of the Smart Card Readers. He also said that the election at LGEA Primary School, Vanam was cancelled by the 3rd Respondent as a result

of over-voting. He was cross examined.

Now, the position of the law remains that for a plaintiff who seeks declarations from the Court to succeed, he must rely on the strength of his own case and not on the weakness of the defence, except, where such evidence of the defence manifestly supports the case of the plaintiff; Ajibulu v. Ajayi (2013) LPELR-21860(SC); Akande v. Adisa & Anor (2012) LPELR-7807(SC). As is the case in all declaratory actions, in election petitions, the burden of proof is always on the petitioner. He must succeed on the strength of his own case and not due to the weakness of the defence. Counsel for the 1st and 2nd Respondents had argued that in view of admissions made by the Appellants in their pleadings and on the evidence adduced, the onus of proof on the 1st and 2nd Respondents as petitioners would be discharged on a minimum of proof. This is certainly not the position of the law where a plaintiff seeks declarations. He must prove that he is entitled to the declarations sought. The law is well settled that the Court does not make declarations of right either on mere admissions or in default of defence without hearing

appropriate evidence and being satisfied with such evidence; Akaninwo & Ors v. Nsirim & Ors (2008) LPELR-321(SC); Amaechi v. INEC & Ors (2008) LPELR-446(SC). Therefore, not even admissions on the part of the respondent or his failure to respond to the petition will entitle the petitioner to such declaratory relief except where the weakness supports his claim; Nyesom v Peterside (supra); Emenike v. P.D.P (2012) LPELR-7802(SC); Aliucha & Anor v. Elechi & Ors (2012) LPELR-7823(SC); Busari & Anor v. Adepoju & Ors (2015) LPELR-41704(CA). Oyetola v. Adeleke & Ors (2019) LPELR-47529(CA). Indeed, as rightly submitted by Counsel for the Appellants before the defence of the respondent would need to be considered, the petitioner would be required to first prove his case. Therefore, no matter how weak the defence of the respondent may be, the petitioner had the primary burden to prove his case. He must make out a prima facie case before the burden of proof shifts to the defendant in rebuttal. See Sections 131, 133, 136 of the Evidence Act, 2011; explaining this principle of law in Okoye & Ors v. Nwankwo (2014)

LPELR-23172(SC), I.T. Muhammad, JSC (now CJN) said, page 45 thereof: the principle of shifting of burden of proof in civil cases is not new. It is as old as the Law of Evidence itself (as seen above) and it is not as fixed on the plaintiff as it is on the prosecution in a criminal case. Black, describes it “shifting the burden of proof’, which he defines as:-
“Transferring it (i.e. burden of proof) from one party to the other, or from one side of the case to the other, when he upon whom it rested originally has made out a PRIMA FACIE case or defence by evidence, of such a character that it then becomes incompetent upon the other to rebut it by contradictory or defensive evidence.” (see: H. C. Black’s Law Dictionary 5th ed. P.1234). See also: Buhari v INEC (supra); Nduul v Wayo (2018) LPELR-45151(SC).

In further proof of their case, Counsel for the 1st and 2nd Respondents tendered from the Bar the following exhibits: Exhibits P1 (1, 3), being Forms EC8B(1) for Mbadim Area Code 01, Mbadim Registration Area Code 07 and Mbakwem; and Form EC82(1) for the Gboko West Constituency. Counsel also tendered Exhibit P10,

the Voters Register for Mbadim Ward, Polling Unit LGEA Primary School Foga; Exhibit P11, the Voters Register for Mbadim Ward, LGEA Primary School, Vanam Code 016; Exhibit P12, Voters Register for Mbakwen Ward, Market Square, Ande code 013.
As was submitted by Counsel for the Appellants and as is revealed by the Record of Appeal, none of these Exhibits was identified by the witnesses for the 1st and 2nd Respondents. None of the exhibits was demonstrated before the trial tribunal to relate each of the documents to the specific area of the 1st and 2nd Respondents case in respect of which the documents are tendered. I agree with Counsel for the Appellants that the trial tribunal understood this principle of law when it held, page 441 of the Record of Appeal:
Exhibits P10, P11, P12, being CTC of voters Registers tendered were not activated by evidence, and the purport of tendering them not demonstrated. No evidential value has been ascribed to them.
This ought to have been the same attitude of the trial tribunal to Exhibit P1 (1-3). These exhibits were not activated by evidence. The argument of Counsel

for the 1st and 2nd Respondents that the truth of the content of Exhibits P1 (1- 3 series) was never in dispute rendering them provable by mere production is not in accord with the position of the law. In Belgore v. Ahmed (2013) 8 NWLR (PT. 1355) 60 at 100, also relied on by the Appellants, the Supreme Court, per Tabai JSC held as follows:
With respect to the volume of documentary evidence, I wish to state at the risk of repetition that they were merely tendered across the Bar by learned counsel for the petitioners at the trial. He did not and was, in fact, not in a position to answer questions or otherwise speak on any of them. Their makers were not called. In such circumstances, was the tribunal bound to ascribe probative value to them? I shall answer the question in the negative.
In Flash Fixed Odds Ltd. V. Akatugba (2009) 9 NWLR (Pt. 717) 46 at 63, the Court of Appeal re-emphasized the principle that the proper person to tender a document is its maker who alone can be cross examined on it; and that where a person who did not make it tenders it, the Court ought not to attach probative value to it since the witness cannot be cross

examined on it. See Gregory Okonkwo V. The State (1998) 8 NWLR (Pt. 561) 210 at 258. This principle applies with equal force in the case. The trial tribunal had no duty to accord probative value to the mass of documents, their status as certified public documents notwithstanding. (Emphasis mine)
See also Nyesom v Peterside (supra) Kekere-Ekun, JSC, who delivered the lead judgment of the apex Court, held on page 1650B-C as follows:
The 1st and 2nd respondents herein failed to establish the allegation of non-compliance with the provisions of the Electoral Act in the manner enjoined by this Court in Ucha v. Elechi, polling unit by polling unit. Voters registers were tendered in respect of only 11 out of 23 Local Government Areas and were not demonstrated before the tribunal. Confronting a few of the defence witnesses with one or two entire does not meet the standard required in this regard. Counsel for the 1st and 2nd Respondents who tendered Exhibits P1 (1- 3 series) from the Bar was not the maker and certainly could not be cross examined thereon. RW1 and RW4, who were agents of the 2nd Appellant, were not the makers

of the documents. Any questions put to them on the said documents cannot be addressed positively.
Further, as rightly pointed out by Counsel for the Appellants, the figure pleaded and given in evidence as the number of registered voters in the affected polling units was 2, 427. No other figure was given. But, the trial tribunal changed this figure, holding, pages 444 – 445 of the Record of Appeal:
The petitioners pleaded the total number of registered voters at the affected polling units to be 2, 427. The total number of registered voters, as stated and summed up on exhibit P1 (1 – 3 series) total 1, 921, because the total number of registered voters, for market square Ande, was not entered as done in the case of other polling units on exhibit P1 (1 – 3 series). (Emphasis mine)
Firstly, the figure 1, 921, was not pleaded nor given in evidence. It is quite pedestrian that evidence on facts not pleaded go to no issue; Buhari v Obasanjo & Ors (2005) LPELR-815(SC); Reptico S.A. Geneva v Afribank Nigeria Plc (2013) LPELR-20662 (SC).
Secondly, this finding could only have been arrived at upon a private

examination of the exhibits outside the open Court. The finding could only have been made upon examination of the exhibits by the trial tribunal out of Court. But it certainly was not the duty of the trial tribunal to assist the 1st and 2nd Respondents as petitioners to prove their case. This sort of unwarranted incursion into the camp of the 1st and 2nd Respondents by the trial tribunal has always been roundly discouraged. It does not assist the justice of the case as the adverse party would be indisputably prejudiced by such assistance to the other side by the Court. A plaintiff has the duty to prove that he has a prima facie case, without aid from the trial Court or tribunal. In ACN v. Lamido & Ors (2012) LPELR-7825(SC) also relied on the Appellants, at page 38 of the E-Report, Fabiyi, JSC said:
The basic aim of tendering documents in bulk was to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents.
It is not the duty of a Court or Tribunal to embark upon cloistered justice by making enquiry into the case outside the open Court not even by examination of

documents which were in evidence but not examined in the open Court. A judge is an adjudicator; not an investigator. (Emphasis mine) In Omisore & Anor v. Aregbesola & Ors (supra), (2015) LPELR-24803(SC) at page 67 of the E-Report, the Supreme Court, per Nweze, JSC said: it has long been settled that a Judge is not permitted to embark on an inquisitorial examination of documents outside the Court room. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure
See also: Onibudo v. Akibu (1982) LPELR-2679(SC), (1982) 7 SC 60; Aliucha & Anor v. Elechi & Ors (supra). Therefore in addition to tendering the exhibits from the Bar, the 1st and 2nd Respondents ought to have given life to the documents tendered by demonstrating the purport of same. It was not for witnesses of the adverse party, who were not the makers thereof, to so demonstrate, as Counsel for the 1st and 2nd Respondents seemed to be implying.

I want to also call attention to the finding of the trial tribunal that:
Exhibits P10, P11, P12, being CTC of voters Registers tendered were not activated by evidence, and the purport of tendering them not demonstrated. No evidential value has been ascribed to them. These Exhibits P10, P11, P12 were the CTC of the Voters Registers. Following a long line of established judicial pronouncements on this issue, this Court, per Georgewill, JCA in PDP v. Ali & Ors (2015) LPELR-40370(CA) at pages 127 – 129, held:
In law an allegation that an election did not hold or that voters did not vote in an election is not a child’s play and certainly not proved by mere allegation and by calling as witness a person who merely testifies that he was a party agent in the affected polling unit. The proof required of a party alleging no election has been well settled in a long line of decided cases, both of this Court and the Supreme.
In all those cases, the common trend in proof of no election or no voting is that the party so alleging must produce the voters’ register of the polling unit in evidence and also call as witnesses, persons

who are registered voters who went with their voters cards to the polling unit but were not allowed to vote or could not vote for variety of reasons and to tender their voters’ cards in evidence. It is definitely not enough to merely allege that voting did not take place and leave the Respondent to battle to prove that voting indeed took place.
A Petitioner who alleges that voting did not take place must lead the threshold evidence of tendering the voters’ register and the voters’ cards of those who were disenfranchised on the election date to show at least prima facie that election did not hold. This is the correct position of the law as aptly and unassailably submitted and quite rightly in my view by the learned SAN for the Appellant. In law the failure to satisfy this minimum requirement is fatal to an allegation that an election did not hold or that voting did not take place. See Remi V. Sunday (1999) 8 NWLR (Pt. 613) 92 @ p. 107. See also Awuse V. Odili (2005) 16 NWLR (Pt. 952) 416 @ p. 471; Nweke V. Ejims (1999) 11 NWLR (Pt. 625) 39; Fayemi V. Oni (2009) 7 NWLR (Pt. 1140) 223; Nwakanma V. Abaribe (2010) All FWLR (Pt. 505) 1767; Audu V. INEC

(2010) 13 NWLR (Pt. 1212) 456 @ pp. 522 523 per Bada JCA.; PDP V. INEC & Ors. (2011) LPELR 8831 (CA); Chime V. Ezea (2009) 2 NWLR (Pt. 1125) 263; Ayogu V. Nnamani (2006) 8 NWLR (Pt. 981) 160 @ p. 166; Yaro V. Wada (2009) All FWLR (Pt. 472) 1084; Rotimi V. Faroji (1999) 6 NWLR (Pt. 606) 305; Eriobuna V. Ezeife (1992) 4 NWLR (Pt.236) P 417 @ p. 430.
See also: Onu v Nwancho (2008) LPELR-8607(CA) David & Anor v. Akinruntan & Ors (2015) LPELR-41798(CA).
It is the voters register that constitutes primary evidence to establish whether election was held or not in a polling unit. But in the instant petition, the trial tribunal declined to accord evidential value to the voters registers, Exhibits P10, P11, P12, which were merely dumped on it without being demonstrated. There was no appeal against this finding. As the evidence stood, the alleged number of registered voters in the affected polling units was not given. The submissions of Mr. Akeme for the 1st and 2nd Respondents that the trial tribunal ought to have evaluated the probative value of the documentary evidence are, with respect, misconceived. I shall return to this point.

If I may repeat, the complaint in ground 1 of the petition was that the 1st Respondent was not elected by majority of lawful votes cast at the election conducted on 9/3/2019. The trial tribunal had found that ground 1 was not established but further found, page 446 of the Record of Appeal:
We have refrained from reproducing the provisions of Section 53(2) of the Electoral Act, as the pleaded facts on over voting in any of the affected polling units was not established by evidence at the trial.
The circumstances of this petition which bothers(sic) on cancellation of election results as a result of communal clash, and violent disruption fall within the contemplations of the emergency situations envisaged under the provisions of Section 26(1) of the Electoral Act 2010 (as amended).

This finding of the trial tribunal is most revealing. If over voting was not established as alleged, then the trial tribunal found in effect that the 1st and 2nd Respondents did not prove their petition on the surviving ground 1. The 7, 883 votes recorded in favour of the 1st Appellant were therefore not shown to be unlawful or invalid votes.

The further finding about a communal clash was not the case of the 1st and 2nd Respondents as petitioners at all. They did not plead any fact of a communal clash. Rather, they denied it completely. Even if there were violent disruptions, as was alleged by the 1st and 2nd Respondents, it was for them to demonstrate to the trial tribunal how these disruptions so affected the result of the election that the majority of lawful votes, as pleaded, 7, 883 in favour of the 1st Appellant against 7, 570 votes in favour of the 1st and 2nd Respondents, was wrong.

It was also for the 1st and 2nd Respondents to show how the cancelled votes caused by alleged violent disruptions in five polling units could swing the results in their favour. The voters registers were therefore crucial. Three voters registers, Exhibits P10, P11, P12, were tendered but thrashed by the trial tribunal and there was no appeal on this finding by the 1st and 2nd Appellants. Therefore, there was no voters register before the trial tribunal in proof of the allegations of the 1st and 2nd Respondents.

The reliance of the trial tribunal on the pleadings and evidence of the

Appellants and of the 3rd Respondent to prove the case of the 1st and 2nd Respondents was in grave error. As rightly submitted for the Appellants, relying on Nyesom v Peterside (supra), the Appellants as respondents before the trial tribunal would be under no obligation to call evidence in rebuttal if the petitioner has not discharged the burden on him to prove his case. The 1st and 2nd Respondents were required to prove their case by prima facie evidence before the burden to rebut shifts to the Appellants and 3rd Respondent. This, the 1st and 2nd Respondents failed to do.

I have noted that there was also no appeal against the finding of the trial tribunal that:
the pleaded facts on over voting in any of the affected polling units was not established by evidence at the trial. Ordinarily, that ought to be the end of the matter. It is settled law that if a finding or decision of a trial Court whether on an issue of fact or law is not challenged in an appeal to this Court, such finding or decision, rightly or wrongly must not be disturbed in the hearing of the appeal;Biariko & Ors v. Edeh-Ogwuile & Ors (2001)

LPELR-779(SC); Bhojsons Plc v. Kalio (2006) LPELR-777(SC); Dabo v. Abdullahi (2005) LPELR-903(SC). That is to say, the finding of the trial tribunal to the effect that the 1st and 2nd Respondents did not prove their case ought to have ended the matter. The trial tribunal was in obvious error to have gone foraging for evidence to favour the 1st and 2nd Respondents who failed to prove their petition. The issues distilled for determination are therefore resolved against the 1st and 2nd Respondents and in favour of the Appellants.

This appeal has merit and hereby succeeds. The decision of the National and State Assembly Election Petition Tribunal, sitting at Makurdi delivered on 3/9/2019 is hereby set aside and the petition of the 1st and 2nd Respondents is accordingly dismissed. It is further ordered that the election and return of the 1st Appellant as member, representing Gboko West State Constituency in the Benue State House of Assembly is hereby affirmed.
Parties are to bear their costs.

JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage of reading before now a draft of the Judgment just delivered by Otisi, JCA. I agree with

her reasoning and conclusion. I will only add a few words by way of emphasis.

The law is certain that the onus lies squarely on a petitioner who questions the return of an election on any or all of the three grounds for bringing a petition in Section 138(1) of the Electoral Act, 2010, (as amended), to prove his case by adducing credible evidence before the Tribunal. This is even more so where the petitioners seek declaratory reliefs. The Court does not make a practice of granting declarations either on admissions by respondents to the petition or even in default of defence. Thus, a petitioner must rely on the strength of his case to succeed and not rely on any real or perceived weakness of the respondent’s case.

Therefore, the Tribunal acted in error when it relied on the pleadings and evidence of the Appellants (as 1st and 2nd Respondents before it) and that of the 3rd Respondent, on the issue of communal clashes and disruptions during the elections, in proof of the case of the 1st and 2nd Respondents/Petitioners. This was in spite of the fact that they (1st and 2nd Respondents herein) denied the issue of communal clashes in their pleadings.

As a result, the Tribunal ended up doing cloistered justice by rifling through exhibits and acting on documents tendered by the Petitioners which were not demonstrated before it; thereby unwittingly aiding the 1st and 2nd Respondents in proving their case.
The Record of the Tribunal shows that the 1st and 2nd Respondents herein tendered certain Electoral Forms and Voters’ Registers from the Bar. But thereafter, made no effort to demonstrate them through relevant persons in the field and/or Electoral Officers, in order to relate the documents to specific areas of the 1st and 2nd Respondents/Petitioners’ complaint. Thus, the Tribunal should not have ascribed probative value to the documents in arriving at its decision. See Nyesom V Peterside (2016) LPELR-40036(SC) 51; Oyetola V Adeleke (2019) LPELR-47529 (CA); Ajibulu V Ajayi (2013) LPELR-21860(SC).

It is therefore for this and for the more comprehensive reasons contained in the lead Judgment that I also allow the Appeal. I abide by the consequential orders made therein, including the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment

of my learned brother, Otisi, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal has merit.

The tribunal found that the only extant ground of the petition before it, viz; ground 1 to the effect that the appellant was not elected by a majority of lawful votes cast at the election was not established. The tribunal should have dismissed the petition at that point. Rather it went ahead to hold as follows: “The circumstances of this petition which bothers on cancellation of election results as a result of communal clash, and violation disruption fall within the contemplations of the emergency situations envisaged under the provisions of Section 26(1) of the Electoral Act 2010 (as amended)”.
The tribunal on that account ordered the INEC to announce new dates for election to be held in five polling units affected by the cancellation. The case pleaded by the 1st and 2nd respondents did not include communal clash; they rather denied any communal clash. By ordering the holding of election in the five polling units on the basis of a finding of communal clash, the tribunal made a case for the 1st and 2nd

respondents different from the case that they made.
In Union Bank of Nigeria Pic v. Emole (2001) 18 NWLR (Pt. 745) 501, the plaintiff failed to prove the particulars of negligence pleaded by him. Rather than dismiss the case, the trial Court went ahead to find for the plaintiff on issues not pleaded by him. At pages 517 – 518, Ogundere, JSC stated as follows:
“Having failed to prove the particulars of negligence pleaded by him, plaintiffs claim for damages for negligence on the tort ought to have been dismissed. It was not for the trial Judge to find reasons, other than those pleaded, to find for the plaintiff in the tort of negligence. He could not make a case for the party different from that party’s case”. See also Orji V Orji (2011) 17 NWLR (Pt. 1275) 113.
The tribunal acted in breach of the above position of the law and therefore arrived at the wrong conclusion.

Appearances:

T.T. Hyundu, Esq. with him, B.A. Iorheghem, Esq. and G.A. Enweluzor, Esq. for the 1st and 2nd Appellants.

Jonathan Akeme, Esq. with him, F.T. Kusugh, Esq.

For Appellant(s)

V.S. Asen, Esq. with him, R.C. Owualah, Esq. for the 1st and 2nd Respondents.

O.P. Ogar, Esq. holding the brief of Saka A. Isau, SAN for the 3rd Respondent

For Respondent(s)

Appearances

T.T. Hyundu, Esq. with him, B.A. Iorheghem, Esq. and G.A. Enweluzor, Esq. for the 1st and 2nd Appellants.

Jonathan Akeme, Esq. with him, F.T. Kusugh, Esq. For Appellant

AND

V.S. Asen, Esq. with him, R.C. Owualah, Esq. for the 1st and 2nd Respondents.

O.P. Ogar, Esq. holding the brief of Saka A. Isau, SAN for the 3rd Respondent For Respondent

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