BARR.BENJAMIN IOREMBER WAYO & ANOR v. HON. ROBERT AONDONA TYOUGH & ORS (2019)

BARR.BENJAMIN IOREMBER WAYO & ANOR v. HON. ROBERT AONDONA TYOUGH & ORS

(2019)LCN/13830(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2019

CA/MK/EP/HR/29/2019

RATIO

ELECTION PETITION: THE DUTY ON A PETITIONER WHO CONTESTS THE LEGALITY OF VOTES CAST AND SUBSEQUENT RESULT

The demand on a petitioner who contests the legality of votes cast and the subsequent result of an election has been settled 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 seeping it with pleasure; particularly in the light of Section 146(1) of the Electoral Act. A petitioner has a difficult though not impossible task.” PER ONYEKACHI AJA OTISI, J.C.A.

ELECTION PETITION: WHAT A PETITIONER MUST PROVE

But, it is apparent, from judicial pronouncements cited above, that what the petitioner must plead and prove when the complaint is that a respondent was not elected by majority of lawful votes cast is not the same as what a petitioner is expected to plead and prove when he alleges that there was corrupt practice or non-compliance that substantially affected the result of the election. PER ONYEKACHI AJA OTISI, J.C.A.

COURTS: WHEN A COURT GRANTS RELIEF NOT SOUGHT

It is well settled that a Court would be acting in error where it grants a relief not sought; Oyediran v Amoo & Ors (1970) LPELR-2867(SC); Salubi v Nwariaku (2003) LPELR-2998(SC); Edilcon Nigeria Ltd v UBA Plc. (2017) LPELR-42342(SC). A case is fought on the relief or reliefs sought, not outside the reliefs sought, per Tobi, JSC in Otun & Ors v Otun & Anor (2004) LPELR-2832(SC). Explaining the foundation for this principle, Peter-Odili, JSC in Alahassan & Anor v. Ishaku & Ors (2016) LPELR-40083(SC) at page 65, said:

As if going outside the statutory provision of Section 140 of the Electoral Act was not bad enough, the Appellants particularly the 1st Appellant had not asked to be so declared winner as what they sought was a declaration that 1st Respondent was not qualified to contest the election not meeting the constitutional requirement of being sponsored by a political party. That being the case, the Tribunal granted a relief outside of what was sought by the Appellants. Our adversarial legal system has laid down principles outside of which no Court is permitted to venture and that is that no Court or Tribunal would grant or award to a party a relief not sought. This because the Court has no jurisdiction to do award is confined within the reliefs sought and no more. There are many judicial authorities to buttress that point and a few of them are as follows: – Ekpenyong v Nyong (1975) 2 SC 71; Obioma v Olomu (1978) 3 SC 1; Odofin & Anor v. Agu & Anor (1992) NWLR (Pt.229) 350. PER ONYEKACHI AJA OTISI, J.C.A.

ELECTION PETITION: WHEN A PETITIONER FAILS TO SEEK RELIEF IN LINE WITH STATUTORY PROVISIONS

Therefore, where the petitioner fails to seek reliefs in line with statutory provisions, and in this case, Section 140(1), (3) and Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2010, as amended, the petition was rendered incompetent; PDP v INEC (supra), per Agim, JCA. In Mustapha v Gamawa & Ors (2011) LPELR-9226(CA), this Court, per Jauro, JCA, said, page 37:The petition as constituted is without any prayer or relief in breach of Paragraph 4(1)(d) and 4(3)(a) of the First Schedule to the Electoral Act 2010 (as amended). A petition without prayers or reliefs sought, is not properly constituted to activate the jurisdiction of the Tribunal. It will be a needless academic exercise to hear the petition, as of the end of it there will be no relief to grant. The omission on(sic) failure to state the relief(s) sought in the petition is a fundamental defect which renders the petition liable to be struck out. 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. BARR. BENJAMIN IOREMBER WAYO

2. ALL PROGRESSIVES CONGRESS (APC) – Appellant(s)

AND

1. HON. ROBERT AONDONA TYOUGH

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) – Respondent(s)

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment and orders of the National and State Houses of Assembly Election Tribunal sitting in Makurdi, Benue State, delivered on September 9, 2019 Coram Hon. R. O. Odugu, Hon. Justice M. A. Onyetenu and His Worship, Esther Tata (the trial Tribunal) in which the petition of the Appellants was dismissed as lacking in merit and not proved.

The facts leading to this appeal can be summarized as follows: On 23/2/2019, the 3rd Respondent conducted a general election into the Kwande/Ushongo Federal Constituency of Benue State of Nigeria, in which the 2nd Appellant fielded the 1st Appellant as its candidate for the election, while the 2nd Respondent fielded the 1st Respondent as its candidate for the same election. The Appellants alleged that on 24/2/2019, when the result was collated, the 3rd Respondent, with the agents of the 1st and 2nd Respondents carted away the election results and other election materials to an unknown destination and on 26/2/2019, in Makurdi, Benue State, announced the 1st Respondent as a winner of the said election.

Dissatisfied with the outcome of the election, the Appellants approached the trial Tribunal with a petition filed on 17/3/2019. The trial Tribunal considered the said petition of the Appellants and the defence of the Respondents, and on 9/9/2019, dismissed the petition as lacking in merit. Aggrieved by the decision of the trial Tribunal, the Appellants lodged this appeal challenging its decision by Notice of Appeal filed on 18/9/2019 on fourteen grounds of appeal; pages 1689 ? 1696 of Vol 2 of the Record of Appeal.

The parties filed Briefs of Argument. At the hearing of the appeal on 25/10/2019, G.T, Yongo, Esq., with S.A. Akpehe, Esq., and T. Nzughul, Esq., adopted the Appellants? Brief filed on 30/9/2019, and, a Reply Brief to the 1st Respondent?s Brief filed on 16/10/2019 and a Reply Brief to the 3rd Respondent?s Brief filed on 16/10/2019. T.D. Pepe., Esq., with E.O. Agena, Esq., adopted the 1st and 2nd Respondents? Brief filed on 10/10/2019, in which a Preliminary Objection was also argued. For the 3rd Respondent, O.P. Ogar, Esq., who held the brief of D.E. Okoro, Esq., adopted the 3rd Respondent?s Brief filed on

11/10/2019, in which a Preliminary Objection was also argued.

The 1st Respondent?s Preliminary Objection, and the 3rd Respondent?s Preliminary Objection to which the Appellants both responded to in their Reply Briefs, shall first be considered and resolved.

Preliminary Objection of 1st Respondent

The 1st Respondent gave the following Notice of Preliminary Objection:

TAKE NOTICE that the 1st respondent shall at or before the hearing of the substantive appeal raise a preliminary objection to the competence of the appeal, and urge that same be dismissed in limine or struck out as incompetent on the following grounds:

(1) That the Court of Appeal lacks jurisdiction to hear this appeal, the petition being incompetent ab initio.

(2) By virtue of the reliefs sought in the petition and in this appeal, the appeal is an academic exercise in respect of the surviving ground 2 of the petition, having regard to Section 140(3) of the Electoral Act 2010 (as amended).

(3) The lower Tribunal acted without jurisdiction in incorporating documentary exhibits tendered from the bar, Exhibits PPE1-PPE156, in its judgment, without having

admitted them in evidence and taking cognizance of the phantom depositions adopted by PW1-PW14 and PW16-PW24, who did not identify/link themselves with any of the depositions accompanying the petition. Hence this Honourable Court lacks the jurisdiction to hear this appeal.

The Appellants had in their Reply Brief to the 1st Respondent?s Brief contended that the 1st Respondent?s Brief was incompetent because it was filed outside the time stipulated by paragraph 12 of the Election Tribunal and Court Practice Directions, 2011, which gives a respondent a period of five days of service of the appellant?s brief to file his brief. The Appellants? Brief was filed on 30/9/2019. However, I will quickly state that our records reveal that the Appellants? Brief was served on the 1st Respondent on 8/10/2019. The 1st Respondent?s Brief, which was filed on 10/10/2019, was therefore within time.

A preliminary objection is usually raised to challenge the competence of an entire appeal or some of the grounds of the appeal and the issues framed therefrom. As rightly submitted by the Appellants? Counsel, relying on

Sani v Okene L.G. Traditional Council & Anor (2008) LPELR-3003(SC), a preliminary objection is raised when a party fails to comply with the enabling law and or with the Rules of Court. By its very nature, a preliminary objection deals with law, contending that a process has not complied with an enabling law or rule of Court and should be struck out; AG Federation v ANPP (2003) LPELR-630(SC); Igbeke v Okadigbo (2013) LPELR-20664(SC). As described in Efet v INEC (2011) 1 SCNJ 179, and reaffirmed in APC v INEC (2014) LPELR-24036(SC), per I.T. Muhammad, JSC (now CJN), at pages 18 ? 19 of the E-report:

?The aim/essence of a Preliminary Objection is to terminate at infancy, or as it were, to nip in the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court?s proceedings. It, in other words, forecloses hearing of the matter in order to save time.?

A preliminary objection does not involve a review of the judgment on appeal. In this light, it is clear that only the 1st and 2nd grounds of the preliminary objection raised by the 1st Respondent fit into the nature of a preliminary objection.

I shall therefore consider grounds 1 and 2 and strike out ground 3 for being an incompetent preliminary objection.

Mr. Pepe for the 1st Respondent, argued grounds 1 and 2 together.

Grounds 1 and 2

Counsel submitted that the entire petition was incompetent. The trial Tribunal had earlier upheld the 1st Respondent?s preliminary objection by striking out ground 1 of the petition. The surviving ground 2 alleged that the 1st Respondent was not duly elected by majority of lawful votes cast. The Appellants as Petitioners were under obligation in line with Paragraph 4(1)(d) of the 1st Schedule to the Electoral Act, to plead clearly the facts forming the basis of the allegation that 1st Respondent did not score majority of lawful votes cast. The corollary of this ground is the necessary implication that 1st Appellant had scored majority of lawful votes, citing Section 140(3) and Paragraph 4(3)(a) of the 1st Schedule, Electoral Act 2010 (as amended). Reliance was also placed on the decision in Nadabo v Dabai (2011) 7 NWLR (Pt. 1245) 155 at 177, per Okoro J.C.A. (as he then was) thus:

?when a petitioner is alleging that the respondent

was not elected by majority of lawful votes, he ought to plead and prove the votes cast at the various polling stations, the votes illegally credited to the ?winner?, the votes which ought to have been credited to him and also the votes which should be deducted from that of the supposed winner in order to see if it will affect the result of the election. Where this is not done, it will be difficult for the Court to effectively address the issue. See Awolowo vs. Shagari (1976) 6 ? 9 S.C. 51.

As the appellant has not been able to show that the 1st respondent was not returned by majority of lawful votes cast at the election, I agree with the lower Court that he was properly elected and returned accordingly

It was argued that in the instant case, there was no pleading in the petition as to; (1) the votes cast at the various polling units, (2) the votes illegally credited to the 1st Respondent, (3) the votes which ought to have been credited to petitioners, (4) the votes which should be deducted from that of the 1st Respondent. The Appellants merely invited the trial Tribunal to make its own calculations and arrive at

these figures. Decisions cited and relied on included: Ojukwu v. Yar?adua (2009) 12 NWLR (pt. 1154) 50 at 149; Goyol v INEC (NO. 2) (2012) 11 NWLR (pt. 1311) 218 at 230; Offomah v. Ajegbo (2000) 1 NWLR (pt. 641) 498; Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1 at 200; Awolowo v. Shagari (1976) 6-9 S.C. 51; Uduma v. Arunsi (2012) 7 NWLR (pt. 1298) 55 at 118-119.

In this case, the trial Tribunal could not have determined the valid votes cast in the election where there was no pleading to that effect. The Appellants simply adopted the facts pleaded in support of ground 1 of the petition based on alleged non-compliance with the Electoral Act, cancellation of election and/or over-voting in certain polling units where election ought to be cancelled for over-voting. Paragraphs 42, 44, 45, 46, 47, 48, 49, 50 and 51 of the Petition, pages 23-27 of the Record of Appeal, were referred to. The Appellants also pleaded in paragraphs 54-58 of the petition that the total number of registered voters in the affected polling units was 59,588, as against the margin of win of 10,133 votes. According to Appellants, the 3rd Respondent ought not to have made the

return until elections were held in the affected polling units. It was alleged that the return was made contrary to the spirit and intendment of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019, referring particularly to paragraphs 58 and 59 of the Petition. There was no pleading anywhere that the 1st Appellant ought to be returned as winner, or as to the number of valid votes which ought to be credited to 1st Appellant and the invalid votes which ought to be deducted from the 1st Respondent?s scores. No such relief was sought in the Petition.

It was submitted that the only competent relief that may be sought and granted under ground 2 of the petition is an order returning the 1st Appellant as winner of the election, by virtue of Section 140(3) of the Electoral Act, 2010 (as amended). The relief for a re-run or fresh election in selected polling units is only available under the ground of non-compliance, which had been rightly struck out by the Tribunal. Having struck out the issue of non-compliance with the Electoral Act, any relief appurtenant or ancillary thereto ought also to have been discountenanced by the trial

Tribunal. But, the trial Tribunal, without jurisdiction to do so, used the same issues of non-compliance, by invoking the margin of lead principle, nullified elections in some polling units and re-computed the results to see if the nullifications had affected the outcome of the election. This was contrary to the subsisting ground 2 of the petition; the Appellants were not contending that they won the election but that fresh election ought to have been held in the polling units affected by cancellation of results and/or over-voting. It was argued that by virtue of Section 140(3) and paragraph 4(3)(a) of the 1st Schedule, Electoral Act 2010 (as amended), the appropriate relief that may be competently sought under ground 2 of the petition has been provided for. The issue of relief to be sought in a petition under this ground is statutory, not at the discretion of a petitioner. It was argued that what Section 140(3) requires is that: (1) the Petitioner must have scored majority of lawful votes to be declared the winner of the election, and (2) that the petitioner must have met all the requirements of the 1999 Constitution and the Electoral Act as regards

qualification for the office and/or eligibility to contest the election. That for a petitioner to be entitled to a relief under ground 2 of the instant petition, he must show that he satisfied all constitutional and statutory requirements in addition to majority of lawful votes cast. But, in this case, apart from not pleading the particulars of valid and invalid votes, polling unit by polling unit, the Appellants failed to plead particulars as to 1st Appellant?s qualifications under Sections 65 and 66 of the 1999 Constitution and Sections 106 and 107 of the Electoral Act, 2010 (as amended). It was submitted that Section 140(3) of the Electoral Act having prescribed the nature of relief that can be granted by the trial Tribunal in support of ground 2 of the instant petition, it was incompetent for the Appellants to have omitted this relief in the petition. The cases of PDP v. INEC (2015) LPELR-25669(CA) PP. 88-90, per Agim, JCA; and, Mustapha v Bulama & Ors (1999) 3 NWLR (pt. 595) 376 at 384 were also relied on.

It was submitted that in this case, the Appellants? Petition was an academic exercise after the striking out of ground 1 thereof,

in view of the absence of the relief for the return of 1st Appellant as winner of the election, relying on Uzoukwu v. Ezeonu II (1991) 6 NWLR (pt. 200) 708 at 784; Otun v Otun (2004) 14 NWLR (pt. 893) 381; (2004) LPELR-2832(SC) P. 22.

The Court was urged, on the basis of the foregoing arguments, to strike out ground 2 of the Petition, strike out the entire petition as being incompetent and further, to decline jurisdiction and strike out the appeal.

For the Appellants, it was submitted in the Reply Brief that in addition to the fact that the Appellants in paragraph 66 of their petition, page 29 of the Record of Appeal, Volume 1, adopted all the facts pleaded in support of ground 1 of the petition as support for ground 2, the trial Tribunal also adopted and sustained the said facts. Paragraph 1, 2 and 3 at page 1636 of the Record of Appeal, Volume 2 was referred to. Further, it was submitted that majority of votes scored in an election must be so scored in an election which is done in total compliance with the provisions of the law. The fact that the facts in support of ground 1 were sustained by the Tribunal, the striking out of the said ground,

became more or less technical. Reliance was placed on the case of HDP v. INEC (2009) LPELR-1375(SC).

Resolution

The petition of the Appellants before the trial Tribunal was based on two grounds:

(1) That the election and or return of the 1st Respondent Tyough Robert Aondona was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019.

(2) That the 1st Respondent, Tyough Robert Aondona was not duly elected by majority of lawful votes cast at the Kwande/Ushongo Federal Constituency Election held on the 23rd February, 2019.

Upon objections raised by the 1st Respondent, the trial Tribunal struck out ground 1 for being incompetent. The surviving ground upon which the judgment of the trial Tribunal was predicated was ground 2, which was in line with the provisions of Section 138(1)(c) of the Electoral Act, 2010, as amended.

Supreme Court, per Tobi, J.S.C said, pages 172-173 of the E-Report:

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 seeping 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 Uchechukwu v Okpalaeke (2010) LPELR-5041(CA), this Court, per Sanusi, JCA (as he then was) said, page 41-42 of the E-Report:

?The appellants also contended that the 1st petitioner won the election by majority of lawful votes cast at the election. To my mind, the evidence to be led in proof of such assertion which seems to be questioning the figures and scores of candidate at the election, must be evidence coming directly from the officers who were at the election ground where votes were cast, counted and or collated.?

See also: Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC); Abubakar v Yar?Adua (2008) LPELR-51(SC); Nyesom v. Peterside & Ors (2016) LPELR-40036(SC); Uduma v. Arunsi (supra); PDP v Usman J. & Ors (2015) LPELR-26032(CA).

The petitioner must therefore plead and adduce evidence from witnesses who were directly at the election ground where the votes were cast, counted and or collated.

The Appellants had pleaded in paragraph 66 of the Petition that they adopt the facts pleaded in support of ground 1 as facts in support of ground 2. But, it is apparent, from judicial pronouncements cited above, that what the petitioner must plead and prove when the complaint is that a respondent was not elected by majority of lawful votes cast is not the same as what a petitioner is expected to plead and prove when he alleges that there was corrupt practice or non-compliance that substantially affected the result of the election. Therefore, the argument of Counsel for Appellants that the facts in support of ground 1 of the petition could also support ground 2 does not accord with the law. The decision in Hope Democratic Party v. INEC & Ors. (2009) LPELR – 1375(SC) relied on by the Appellants does not apply herein. In that case, the petitioners failed to specifically state the grounds upon which the petition was brought. The petition was struck out by this Court for failure to comply with the

provisions of Section 145 of the Electoral Act, 2006 and Paragraph 4(1)(d) of the First Schedule to the Electoral Act. The Supreme Court noted that although the petition failed to state the grounds for presenting the petition under separate heads, one had to read through the petition to see if by the petitioner?s pleadings revealed the ground or grounds for the petition.

This was not the case in the instant appeal. In this case, the Appellants clearly stated their grounds for presenting the petition. The trial Tribunal however upheld an objection by the 1st Respondent and specifically struck out ground 1 thereof, leaving ground 2. The trial Tribunal could not thereafter return to comb through the petition to see if any pleadings fitted into the already struck-out ground. That would amount to a backdoor attempt to circumvent its own decision, which act the trial Tribunal had no jurisdiction to engage in. Therefore, having struck out ground 1, the trial Tribunal was left with ground 2 as the basis for presenting the petition. The pleadings in support of ground 1 on non-compliance with the Electoral Act and the Manual for Election Officials, 2019,

cannot support ground 2, which challenged the election of the 1st Respondent by a majority of lawful votes cast at the election.

Further, Paragraph 4(1)(d) of the First Schedule to the Electoral Act provides that the contents of an election petition must include the facts of the election petition, the ground or grounds on which the petition is based, and, the relief sought by the petitioner. These contents are mandatory. Even where the petition is inelegantly drafted, these statutory contents must be evident therein for the tribunal or Court to see; Hope Democratic Party v. INEC & Ors. (supra). Where a petitioner challenges the election of a respondent on the ground that he was not elected by a majority of lawful votes cast at the election, Section 140 of the Electoral Act, 2010, as amended, is clear about what relief may be sought and granted by a trial Tribunal or Court. By Section 140 (1), if the Tribunal or Court determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or Court shall nullify the election. Section 140(3) further provides as follows:

“If the Tribunal or the Court

determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.”

The relief sought by a petitioner must clearly be stated in line with the provisions of the Electoral Act.

As rightly submitted by the 1st Respondent, once the trial Tribunal determines that the respondent was not elected by a majority of lawful votes cast at the election, the trial Tribunal shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.

outside the reliefs sought, per Tobi, JSC in Otun & Ors v Otun & Anor (2004) LPELR-2832(SC). Explaining the foundation for this principle, Peter-Odili, JSC in Alahassan & Anor v. Ishaku & Ors (2016) LPELR-40083(SC) at page 65, said:

?As if going outside the statutory provision of Section 140 of the Electoral Act was not bad enough, the Appellants particularly the 1st Appellant had not asked to be so declared winner as what they sought was a declaration that 1st Respondent was not qualified to contest the election not meeting the constitutional requirement of being sponsored by a political party. That being the case, the Tribunal granted a relief outside of what was sought by the Appellants. Our adversarial legal system has laid down principles outside of which no Court is permitted to venture and that is that no Court or Tribunal would grant or award to a party a relief not sought. This because the Court has no jurisdiction to do award is confined within the reliefs sought and no more. There are many judicial authorities to buttress that point and a few of them are as follows: – Ekpenyong v Nyong (1975) 2 SC 71; Obioma v Olomu (1978)

3 SC 1; Odofin & Anor v. Agu & Anor (1992) NWLR (Pt.229) 350.?

(Emphasis mine)

?The petition as constituted is without any prayer or relief in breach of Paragraph 4(1)(d) and 4(3)(a) of the First Schedule to the Electoral Act 2010 (as amended). A petition without prayers or reliefs sought, is not properly constituted to activate the jurisdiction of the Tribunal. It will be a needless academic exercise to hear the petition, as of the end of it there will be no relief to grant. The omission on(sic) failure to state the relief(s) sought in the petition is a fundamental defect which renders the petition liable to be struck out.?

?Although the Appellants made no specific response to the contention that they sought no reliefs in line with the

statutory stipulations, I have examined the reliefs they sought from the trial Tribunal and find it difficult to agree with the 1st Respondent in this regard. In summary, the Appellants sought declarations that the 34, 439 votes cast for the 1st and 2nd Respondents were invalid votes while the 24, 306 votes cast for the Appellants were valid votes; the withdrawal of the certificate of return issued to the 1st Respondent as winner of the said election and the 3rd Respondent be directed to issue of the certificate of return to the 1st Appellant as duly elected member of the House of Representatives for the Kwande/Ushongo Federal Constituency; or, in the alternative, the setting aside of the declaration and return of the 1st Respondent as winner of the Kwande/Ushongo Federal Constituency Election held on 23/2/2019; the withdrawal of the certificate of return issued to the 1st Respondent as winner of the said election; and that the 3rd Respondent be directed to conduct fresh election in all polling units where election were cancelled. In my considered opinion, aside from the reliefs that sought fresh elections, the reliefs that sought the withdrawal of the

certificate of return issued to the 1st Respondent as winner of the said election and that the 3rd Respondent be directed to issue of the certificate of return to the 1st Appellant as duly elected member of the House of Representatives for the Kwande/Ushongo Federal Constituency were in substantial compliance.

The 1st Respondent has attacked the sufficiency of the pleadings of the Appellants to sustain the petition on ground 2. I believe this issue would better be considered in the substantive appeal. I therefore disregard the same for now.

I therefore overrule and dismiss the Preliminary Objection of the 1st Respondent.

Preliminary Objection of 3rd Respondent

For the 3rd Respondent, it was submitted that Issue three formulated by the Appellants was not a competent issue as it is not tied to or distilled from any of the grounds of appeal filed. Relying on Grace Abraham v. The State (1994) 7 NWLR (PT. 359) 635, per Okoro, JSC; Anah v. Ezeweputa (2009) LPELR-8869(CA); Ogunsanya & Anor v. Skye Bank Plc. (2013) LPELR-20555 (CA), per Pemu, JCA, it was submitted that all issues formulated by parties must be distilled from a ground or

grounds of appeal.

In their Reply to the 3rd Respondent?s Brief, the Appellants attacked the competence of the 3rd Respondent?s Brief as having been filed out of time. Counsel for the Appellants further submitted that the preliminary objection of the 3rd Respondent was misconceived in that Issue 3 as framed by the Appellants was derived from ground 3 of the Notice of Appeal. He also relied on Anah v. Ezeweputa (supra) in urging the Court to dismiss the preliminary objection as lacking in merit.

Resolution

The Appellants had in their Reply Brief to the 3rd Respondent?s Brief contended that the 3rd Respondent?s Brief was incompetent because it was filed outside the time stipulated by Paragraph 12 of the Election Tribunal and Court Practice Directions, 2011, which gives a respondent a period of five days of service of the appellant?s brief to file his brief. The Appellants? Brief was filed on 30/9/2019. However, I will quickly state that our records reveal that the Appellants? Brief was served on the 1st Respondent on 8/10/2019. The 3rd Respondent?s Brief, which was filed on 11/10/2019, was

therefore filed within time.

Although Issue 3 as framed by the Appellants did not specifically state the ground of appeal from which it was framed, it is clear that the said Issue 3 was distilled from ground 3 of the grounds of appeal. The Preliminary Objection of the 3rd Respondent is without merit and is hereby dismissed.

Substantive Appeal

The Appellants distilled the following Issues for determination of this appeal:

1. Whether or not the National and State Houses of Assembly Election Tribunal was right in its conclusion in the evaluation of Exhibits PPE7G, PPE8H, PPE10J, PPE11K, PPE15O, PPE17Q, PPE19S, PPE23W, PPE24X, PPE25Y that the number of polling units results cancelled and/or results not returned are 23. (See ground 1)

2. Whether or not the National and State Houses of Assembly Election Tribunal was right in the face of paragraphs 39, 41, 60 and 61 of the appellants petition; paragraphs 54 and 66 of the 1st respondents reply; paragraphs 62 of the 2nd respondents reply and paragraphs 23 of the 3rd respondents reply in holding that 9 of the cancelled polling units and/or polling units where results were not returned were not

pleaded by the petitioners. (see ground 2)

3. Whether the National and State Houses of Assembly Election Tribunal was right to have required proof of facts in the 12 polling units admitted by all the respondents to have been cancelled.

4. Considering the fact that Exhibits PPE 76, PPE 35A and PPE 15O contained the number of registered voters in the 4 polling units canceled by the Tribunal, and the fact that 3rd respondent was subpoenaed to tender the voters register among other documents but refused, was the Tribunal right to have held that it could not determine the number of registered voters in the said polling units?(see Ground 4 )

5. Was the National and State Houses of Assembly Election Tribunal right in striking out the motion for regularization of the Additional Statement of the 1st appellant/petitioner by reason of ineptitude and tardiness of counsel, when the fault was not that of the petitioners and when exceptional circumstances existed for the grant of the application? (see ground 5)

6. Was the National and State Houses of Assembly Election Tribunal right in striking out and expunging the evidence contained in the additional

statement on Oath of the 1st appellant/Petitioner on the ground that it contained 10 polling units that were not pleaded in the petition, and that the additional statement is devoid of a reply statement when the said 10 polling units were in fact conspicuously stated in forms EC8B (II) pleaded by the Appellants and all the respondents, and when contents of the additional statement were in consonance with the reply of the appellants/Petitioners to the replies of the respondents to the petition (see ground 6 & 7).

7. Considering paragraph 62 of the petition, paragraphs 8 & 6 of the Appellants/petitioners? Replies to the Replies of the 1st and 2nd respondents and paragraphs 58, 56 & 20 of the 1st, 2nd and 3rd respondents respective replies to the petition together with the unchallenged evidence of PW15 and the evidence of RW2, was the election Tribunal correct in restricting itself to the issue of declaration of results outside the constituency only and in holding that the act of the 3rd respondent was not in substantial breach of the law? (see ground 8)

8. Whether the National and State Houses of Assembly Election Tribunal was correct

when it held that apart from the evidence of PW8, PW9, PW10 and PW16, the evidence of the other witnesses was discredited. (see ground 9)

9. Whether or not the election Tribunal erred when in one breadth it held that the number of cancelled polling units pleaded by the Appellants/petitioners? are 14 and yet in another breadth held that the number of cancelled polling units pleaded by the appellants/petitioners? are 28 and whether this holding did not occasioned a miscarried of justice(see ground 10).

10.Whether or not the National and State Houses of Assembly Election Tribunal was right when it failed to include RCM Shinshima and Filifi Market square polling units among the polling units it had cancelled but rather included Tse Jam, Tse Anom and RCM School Ihindan I (of serial no. 13) polling units which result the Tribunal did not cancel.(see ground 11)

11. Whether or not the National and State Houses of Assembly Election Tribunal was right in consolidating the three applications when two of the applications were filed out of time without the leave of the Tribunal and therefore defective. (see ground 12).

12. Whether or not the

striking out of ground 1 of the petition by the National and State Houses of Assembly Election Tribunal, premised on the use of the words, ?and Manual for Election officials, 2019? was right and did not occasion a miscarriage of justice. (See ground 13)

13. Is the judgment of the Tribunal not against the weight of evidence? (see ground 14).

The 1st Respondent as well as the 3rd Respondent adopted the Issues as framed by the Appellants. I believe a resolution of Issue 12 is foundational. This is simply because the petition was fought on the grounds upon which it was presented. I shall therefore first consider and resolve Issue 12.

Issue 12

The petition was filed on two grounds:

(1) That the election and or return of the 1st respondent Tyough Robert Aondona was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the Manual for Election Officials, 2019.

(2) That the 1st Respondent, Tyough Robert Aondona was not duly elected by majority of lawful votes cast at the Kwande/Ushongo Federal Constituency Election held on the 23rd February, 2019.

The trial tribunal struck out ground 1, holding that the Appellants had couched ground 1 in terms beyond the provisions of Section 138(1)(a) of the Electoral Act, 2010, as amended, by adding non-compliance with the Manual for Electoral Officers, 2019. The trial Tribunal held that the provisions of the Manual cannot be grounds for questioning an election even when the contents are not contrary to the provisions of the Act.

On this Issue, the Appellants submitted that Section 160 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has granted powers to the Independent National Electoral Commission (INEC), the 3rd Respondent, to make rules and or guidelines to regulate the conduct of an election. Sections 73 and 153 of the Electoral Act 2010 (as amended) also mandated INEC to make rules and provide for regulations that may guide the conduct of an election. The Manual for Election Officials, 2019 Guidelines for the conduct of the 2019 general election were made in the exercise of these powers. The decision of the Supreme Court in Faleke v. INEC (2017) 3NWLR (pt. 1543) 16 in which the earlier decision of the apex Court in CPC v. INEC (2011) LPELR

? 8257 (SC) was cited with approval, was relied upon. It was argued that by virtue of Section 160 of the 1999 Constitution, the said Manual and Guidelines were for all intent and purposes, part and parcel of the Electoral Act 2010 (as amended). And, that reference to the Manual for election officials 2019, is not in violation of Section 138(1)(b) of the Electoral Act 2010 (as amended), more so that Section 138(1) does not require that it should be quoted verbatim. Further reliance was placed on the decision in HDP v. INEC (2009) 3 SCNJ 45. It was therefore argued that striking out ground one of the petition on the sole reason that by the use of the words ?and Manual for election officials 2019,? the ground was outside the ambit of Section 138(1) of the Electoral Act 2010 (as amended) was in error since the petition of the Appellants contained facts pointing to non-compliance with the provisions of the Electoral Act 2010, as amended. The Court of Appeal was urged to reverse the decision of the trial Tribunal and maintain the ground.

For the 1st Respondent, it was submitted the trial Tribunal was correct when it followed the decisions of

this Court and those of the Apex Court in striking out ground 1 of the petition for being incompetent, having regard to the provisions of Section 138 (1) and (2) of the Electoral Act, 2010 (as amended) and the recent decisions of this Court and the Apex Court on the couching of grounds of a petition. The decision of the trial Tribunal was in consonance with several recent decisions, including: Nyesom v Peterside (2016) 7 NWLR (Pt. 1512) 452. It was argued that couching ground 1 of the Appellants? petition to include complaints against of non-compliance with the Manual for Election Officials rendered the ground incompetent as it violated the provisions of Section 138(2) of the Electoral Act, relying on Emerhor v. Okowa (2016) 11 NWLR (Pt. 1522) 1 at 30 ? 31, per Okoro, J.S.C. It was submitted that the trial Tribunal was bound to follow the decision of the Apex Court in Nyesom v Peterside (supra); Emerhor v. Okowa (supra); Ojukwu v Yar?adua (2009) 12 NWLR (PT 1154) 50 as well as decisions of this Court in Goyol v. INEC (2010) 11 NWLR (PT 1311) 218; Barr. Bashir Mohammed & Anor V. Hon. Rashida Abdullahi & Ors (2015) LPELR-40632(CA).

The legality of the Manual or the source of the 3rd Respondent?s powers in making the said Manual was not in issue herein. The decisions in Faleke v. INEC (supra) and CPC v. INEC (supra) were not applicable to the instant appeal as it was not the contention of respondents that the said Manual had no force of law. The Court was urged to discountenance the arguments of Appellants? counsel on this point against the Appellants.

For the 3rd Respondent, similar arguments were made in urging the Court to resolve the Issue against the Appellants.

Resolution

In resolving this Issue, I shall rely on the recent decision of this Court in Appeal No: CA/MK/EP/HA/27/2019: Chabo & Anor v Achir & Ors., (Unreported), delivered on 25/10/2019, wherein this Court, per Otisi, JCA, reviewed relevant and recent decisions of the Apex Court and of this Court including: Ojukwu v. Yar?adua (supra) also reported in (2009) LPELR-2403(SC); Nyesom v. Peterside (supra) also reported in (2016) LPELR-40036(SC) as well as the provisions of Sections 138(1)(b), (c), 138 (2) and Section 153.

In Ojukwu v Yar?Adua (supra), the petition lodged before

this Court in its capacity as the Presidential Election Tribunal, was on these grounds:

?GROUND 1

The election in which the 1st and 2nd Respondents were declared winners was not conducted in compliance with the 1999 Constitution and the Electoral Act 2006.

GROUND 2

The election did not meet the minimal requirement of Electoral democracy and the law and the Electoral Act 2006.

GROUND 3

Rudimentary requirements of fairness and equal treatment provided by the Constitution and the Electoral Act were not extended to the Petitioner and to potential voters in Anambra, Imo, Abia, Enugu and Ebonyi States.

GROUND 4

The 1st and 2nd Respondents are not qualified to contest for election to the office of President and Vice President respectively because having been employed by the people of Katsina and Bayelsa States as their Chief Public Servants or Chief Executives they did not, contrary to Section 137(g) of the 1999 Constitution, resign or withdraw from their offices as executive governors at all prior to the said Presidential Election.?

?By means of a motion on notice, the 1st and 2nd respondents therein prayed

the Presidential Election Tribunal for an order dismissing the petition contending, inter alia, that the petition was defective and in clear breach of the express provisions of the Electoral Act 2006. The 3rd and 4th respondents therein also filed a notice of preliminary objection in which they prayed the Presidential Election Tribunal for an order dismissing the Petition on the following ground, inter alia: –

“The Petition has not disclosed any reasonable cause of action against the Respondents as grounds 1, 2 and 3 of the Petition and the particulars thereunder as constituted have not shown that the election was not conducted substantially in accordance with the principles of the Electoral Act or that the non-compliance affected substantially the result of the election as envisaged under the provisions of Section 145(1) of the Electoral Act 2006.?

This Court, sitting as the Presidential Election Tribunal held, as it relates to the complaint in respect of Section 145(1) of the Electoral Act that the grounds 1 and 4 were competent but struck out the petition on the other grounds. Aggrieved by the decision, the appellants therein approached the

Supreme Court. In dismissing the appeal, the Supreme Court, per Niki Tobi, JSC, with regard to Section 145(1) of the Electoral Act, 2006 clarified, pages 69 ? 70 of the E-Report:

?By the subsection, an election may be questioned on any of the following grounds:

?(a) that a person whose election is questioned was at the time of the election not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of (the) Act;

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.?

A petitioner is required to question an election on any of the grounds in Section 145(1) of the Act. He is expected to copy Section 145(1) grounds word for word. I think a petitioner can also use his own language to convey the exact meaning and purport of the subsection. In the alternative situation, a petitioner cannot go outside the ambit of Section 145(1) of the Act. In other words, he cannot add to or subtract

from the provision of Section 145(1). In order to be on the safer side, the ideal thing to do is to copy the appropriate ground or grounds in the subsection. A petitioner who decides to use his own language has the freedom to do so, but he should realise that he is taking a big gamble, if not a big risk.

I will examine the four grounds in the light of the above position of the law I have stated… I am in grave difficulty to agree with the Court of Appeal that ?ground 1 of the petition clearly conforms with Section 145 (1)(b) of the Electoral Act?Section 145(1)(b) is clearly restricted to non-compliance with the Electoral Act and not non-compliance with the 1999 Constitution. By the addition of non-compliance with the 1999 Constitution, ground 1, in my view, is speaking a different language from Section 145(1) (b). A party has no legal right to expand the language or wordings of a statute. That is the exclusive function of the legislature. The legal right of a party is to expatiate on a statute, not to expand it. By the addition of the words ?the 1999 Constitution?, the appellant has expanded the provision of Section 145(1) (b) of the Electoral Act.

I am therefore, with the greatest respect, not with the Court of Appeal, that the ground is in conformity with Section 145(1) (b) of the Electoral Act. A possible argument to rope in Section 140(1) of the Electoral Act here will not hold water as Section 140 is not the enabling section on grounds of filing an election petition; it is Section 145 …?

His Lordship further said, page 79 of E-Report:

?Counsel has the right to introduce innovations in procedure of Courts where the rules are silent on a particular procedure to be adopted. Where the rules specifically provide for a procedure, innovations of counsel outside the specific rules will go to no avail. They rather destroy the case of the party. This is because the Courts expect counsel to follow the procedure provided for in the rules. I see in this appeal such a situation. It is unfortunate that the appellant willy-nilly abandoned the provision of Section 145(1) of the Act. He cannot blame the Court of Appeal for striking out the petition. He has himself to blame.

?Section 145(1) of the Electoral Act, 2006 is in pari materia

with the extant Section 138(1) of the Electoral Act, 2010, as amended. The decision in Ojukwu?s case was followed in Muhammed & Anor v. Abdullahi & Ors (supra) also reported at (2015) LPELR-40632(CA). See also: PDP v. El-Sudi & Ors (2015) LPELR-26036(CA); Ambode v Agbaje (2015) LPELR-25667(CA); Kalu & Anor v. Chukwumereije & Ors (2011) LPELR-9188(CA); Oyetola v. Adeleke & Ors (2019) LPELR-47529(CA). These decisions convey that a petitioner in stating the grounds for the petition is expected to either adopt or copy word for word the syntax of Section 138(1) or use his own words, if he so chooses, but he must convey grounds within the parameters of Section 138(1). The mere addition of other words would not, without more, shoot down a ground of election petition as incompetent if the ground in its entirety falls within the parameters of Section 138(1). In Muhammed & Anor v. Abdullahi & Ors (supra), this Court per Sankey, JCA, said:

?Clearly, by the findings of the Supreme Court, particularly inOjukwu V Yar’ Adua (supra), a petitioner, even where he decides to use his own words in framing the grounds for bringing his petition, cannot go outside

the ambit of Section 138(1).?

Where there are added words, which take all the grounds outside the borders of Section 138(1), then that would be the end of the petition as the grounds for its commencement would be incompetent.

In Nyesom v. Peterside (supra), one of the issues framed for the determination of the Apex Court was:

Was the Court of Appeal right when it came to the conclusion that the petitioners ground for the petition which included non-compliance with Manual for Election Officials 2015 and General Elections approved Guidelines and Regulations was within the purview of Section 138(1)(b) of the Electoral Act 2010 as amended.

The petition had been brought on the following grounds:

?(i) That the 2nd respondent was not duly elected by majority or highest number of lawful votes cast at the election;

(ii) That the election of the 2nd respondent was invalid and unlawful by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), Manual for Election Officials 2015 as well as the 1st respondent’s 2015 General Elections approved guidelines and regulations.

(iii) The election was invalid by reason of corrupt practices.”

The Apex Court considered the provisions of Section 138(1)(b) and (2) and 153 of the Electoral Act and, per Kekere-Ekun, JSC, held, pages 66-67 of the E-Report:

?The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138 (2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election.

In the instant case, one of the complaints of the 1st & 2nd respondents is that there was deliberate non-use of the Card Reader machines in the election. However, as this Court has held, the use of the Card Reader has not done away with manual accreditation provided for in Section 49 of the Act.

It follows therefore that the inclusion of non-compliance with the Manual for Election Officials 2015 as well as INEC’S 2015 General Elections approved Guidelines in the circumstances of this case is

improper. This issue is accordingly resolved in the appellant’s favour.?

(Emphasis supplied).

In other words, although the 3rd Respondent is endued with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by Section 138 (2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election. Therefore, the act or omission complained about by a petitioner must be covered by the Electoral Act itself to qualify as a ground for bringing a petition, and not merely be an act or omission found in the Regulations and Guidelines, albeit made under the Act. Indeed, the Supreme Court in Nyesom v Peterside (supra) held that failure to follow the Manual and Guidelines, which were made in exercise of the powers conferred by the Electoral Act cannot, in and of itself render the election void, pages 70 ? 71 of the E-Report. To my mind therefore, beyond mere addition of words not specifically used in Section 138(1), the decision point would be whether or not the Appellants brought their

grounds for filing the petition within the confines of Section 138(1).

In Appeal No: CA/MK/EP/HA/27/2019: Chabo & Anor v Achir & Ors., (Unreported), the Court made the following findings:

?The catalogue of the Cross Appellants? complaints therefore fall into one main category, being failure to comply with Regulations and Guidelines for the Conduct of the 2019 General Elections by the 3rd Cross Respondent, Exhibit P3, which category is further divided into two branches: non use of the smart card reader, and, failure to apply the margin lead principle. Following the extant state of the law that the grounds upon which a petition is hinged must be within the boundaries of Section 138(1), as established by the Apex Court, the question now is: whether the complaints of the Cross Appellants fall within the said boundaries.

It is now settled that issues concerning the use or non-use of the commendable innovation of the smart card reader, as well as the failure to follow the Manual and Guidelines, which were made in exercise of the powers conferred the Electoral Act cannot, in and of itself render an election void. The smart card

reader was introduced by the 3rd Respondent in its Guidelines and Manual made pursuant to its powers under the 1999 Constitution, as amended and the Electoral Act so as to minimize difficulties associated with the manual accreditation of voters and thereby aid credibility in the accreditation process in an election. However, what is provided for use in the accreditation of voters in a polling unit by the extant Electoral Act is the register of voters, Section 49 of the Electoral Act, 2010, as amended. The smart card reader has not replaced or overtaken the place of the voter?s register. As was graphically pronounced in Okereke v. Umahi & Ors (2016) LPELR-40035(SC), per Nweze, JSC:

?Indeed, since the Guidelines and Manual (supra), which authorised the use and deployment of the electronic Card Reader Machine, were made in exercise of the powers conferred by the Electoral Act, the said Card Reader cannot, logically, depose or dethrone the Voter’s Register whose juridical roots are, firmly, embedded or entrenched in the selfsame Electoral Act from which it (the Voters’ Register), directly, derives its sustenance and currency.

Thus, any attempt to invest it (the Card Reader Machine procedure) with such overarching pre-eminence or superiority over the Voters’ Register is like converting an auxiliary procedure – into the dominant procedure – of proof, that is, proof of accreditation. This is a logical impossibility.?

Therefore, failure to use the smart card reader by officials of the 3rd Respondent, without more, cannot be ground for invalidating an election.

In Chabo & Anor v Achir & Ors., (supra), this Court further held:

?At the risk of repetition, the complaint of a petitioner must fit into non compliance with the provisions of the Electoral Act, which is substantial enough to invalidate the result of the election, having regard to the provisions of Sections 138(2) and 139(1) of the Electoral Act, 2010, as amended. It is in regard to such substantial non-compliance that the failure to consult and apply the Manual or the Regulations and Guidelines by INEC may be accommodated. Failure to apply the Regulations and Guidelines by the 3rd Respondent is not, on its own, a ground for invalidating an election.

In Fadeke v INEC (supra), page 120 thereof, the

Manual for Election Officials, and by extension, the Regulations and Guidelines, both made pursuant to Sections 73 and 153 of the Electoral Act, were described as subsidiary legislation and where found to be relevant, its provisions can be invoked.

Indeed, the point was strenuously made by the highest Court in the land inNyesom v. Peterside (supra) that the Guidelines and Manual cannot be elevated above the provisions of the Electoral Act, pages 70 ? 71 of the E-Report. In his concurring opinion, I.T. Muhammad, JSC (now CJN) said, pages 103 ? 104 of the E-Report:

?I agree with my learned brother Kekere-Ekun, JSC, that the failure to follow the Manual and Guidelines which were made in exercise of the powers conferred by the Electoral Act, cannot in itself render the election void. And this should not be understood to mean that the innovation of the Card Reader is in conflict with the relevant Sections of the Electoral Act.

Permit me, again, Your noble Lordships, to state, with emphasis that the Card Reader was introduced by INEC with good intentions. However, a distinction must always be drawn between the effect of a law made

by the legislature (National Assembly: i.e. the Electoral Act: the Constitution, etc) and a rule of procedure (by whatever name called) by any other authority with a view to facilitating the smooth running or operation of a given institution. Breach of the former can be severer and fatal than breach in case of the latter. In this appeal, Section 138(2) decisively settles the issue.?

(Emphasis mine)?

In the petition presented by the Appellants, the major complaint bordered on the non-use of the card reader in accreditation of voters in some unspecified polling units, non-accreditation of voters in some unspecified polling units and non-compliance with the manual for Electoral Officials, 2019 with regard to the margin of win principle. As established, neither the card reader nor the margin of win principle, as innovative and commendable as they are, are found in the Electoral Act, 2010, as amended. The established method for accreditation of voters as provided for in Section 49 of the Electoral Act is by use of the voter?s card and the voter?s register. By Section 69 of the Act, the winner of an election is the candidate that

scores the highest number of votes. The winner or likely winner of an election is not determined by the number of persons who are registered voters, who may or may not decide to exercise their voting rights at all. Moreover, the provisions of Section 138(2) as well as Section 139(1) of the Act cannot be ignored;

138(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.

139(1) An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.

I therefore hold that the trial Tribunal rightly struck out ground 1 of the petition presented by the Appellants. Issue 12 is resolved against the Appellants.

The petition was sustained by ground 2. The question now is whether

the pleadings of the Appellants were sufficient to sustain the allegation in ground 2. The Appellants pleaded, page 29 of the Record of Appeal:

GROUND TWO (2)

That the 1st Respondent, Tyough Robert Aondona was not duly elected by majority of lawful votes cast at the Kwande/Ushongo Federal Constituency election held on the 23rd February, 2019.

Your Petitioner hereby adopt the facts pleaded in support of Ground one (1) of this petition as facts in support of Ground two (2).

Your petitioners state that the 59,588 registered voters whose votes were not proper of the final votes declared by the 3rd and 4th Respondents as a result of non-card reader accreditation of voters, or cancellations of results, over voting and mutilations of results, as such, the declaration and return of the 1st respondent as the winner of the Kwande/Ushongo Federal Constituency Election held on the 23rd February, 2019 was not by the majority of the lawful votes cast at the election.

?Your Petitioner state that the 3rd respondent and her agent in connivance with the 1st and 2nd Respondents, fraudulently altered and tampered with the election results in many of the

polling units and duplicate issued to the Petitioners agents. Your Petitioners shall rely on those results, and the certified true copies of same, to proof that the whole election in these polling units was marred with sharp practices and grave irregularities in total disregard to and non compliance with the extant provisions of the law.

This was the extent of pleadings of the Appellants in proof of ground 2.

The point has been made that pleadings in support of ground 1 on non-compliance with the Electoral Act and the Manual for Election Officials, 2019, cannot support ground 2, which challenged the election of the 1st Respondent by a majority of lawful votes cast at the election. In any event, as rightly canvassed by the 1st Respondent?s Counsel, every pleading in support ground 1 was struck out, along with it and ought not to have been considered by the trial Tribunal.

A look at the pleadings in support of ground 2 would immediately reveal that the complaint of the Appellants revolved around the non-use of the card reader in accreditation of voters in some unspecified polling units, non-accreditation of voters in some unspecified

polling units, and over voting in some unspecified polling units. There was no pleading in the petition as to: the votes cast at the various polling units; the votes alleged to have been illegally credited to the 1st Respondent; the votes which ought to have been credited to petitioners; and the votes which should be deducted from that of the 1st Respondent. Facts are pleaded, evidence is adduced in line with the facts pleaded;Ojiogu v Ojiogu & Anor (2010) LPELR-2377(SC); CPC v INEC (20110 LPELR-8257(SC). It is elementary that evidence on facts not pleaded go to no issue; Buhari v Obasanjo (2005) LPELR-815(SC).

I agree with the 1st Respondent that the petition ought to have been dismissed upon the striking out of ground 1, there being no facts to support ground 2. I believe the confusion of the trial Tribunal is traceable to the sole issue it formulated for the determination of this appeal, which was:

Whether the 3rd Respondent’s declaration and return of the 1st Respondent as the winner of the Kwande/Ushongo Federal Constituency election which was held on the 23rd day of February, 2019 and the return made on the 26th day of February, 2019 is

unlawful and/or contrary to any of the provisions of the Electoral Act, 2010 as amended.

The point was made in our decision in the Cross Appeal, which has just been delivered that the issue as was distilled by the trial Tribunal was rather in line with ground 1, which it had already struck out. It is trite that once an issue is struck out, it is no longer before the Court and cannot be taken account of. The trial Tribunal therefore ought not to have taken account of the struck-out ground 1 in distilling the issue for determination. Running with that Issue, the trial Tribunal misdirected itself and focused on matters extraneous to the contentions in the ground for the petition, in grave error.

The point was also made in the judgment in the cross appeal that declaration and return are only aspects of the election and do not constitute an election as a ground under Section 138(1) ought to complain;Oyetola v Adeleke (2019) LPELR-47529 (CA). Therefore, the trial Tribunal completely deviated from the requirement of Section 138 (1) of the Electoral Act 2010. The trial Tribunal also failed to advert its mind to the fact that facts that were required to

prove a complaint in support of ground 2 were not pleaded; Buhari v INEC (2008) LPELR-814(SC); Ikpeazu v. Otti & Ors (2016) LPELR-40055(SC); Abubakar v Yar?Adua (2008) LPELR-51(SC); Uchechukwu v Okpalaeke (2010) LPELR-5041(CA); PDP v Usman J. & Ors (2015) LPELR-26032(CA).

The issue as formulated by the trial Tribunal was therefore fundamentally flawed, being completely out of sync with the provisions of Section 138(1)(c), and in consequence, out of sync with what was required to prove the petition on ground 2. The trial Tribunal only had jurisdiction to determine a petition which is anchored on the grounds upon which an election petition could be brought. The issue as formulated by the trial Tribunal went out of the purview of the provisions of Section 138(1)(c) and therefore was incompetent. I therefore hold that the petition was incompetent as it had no pleadings to support the ground relied upon.

?This appeal is without merit and it is hereby dismissed. The decision of the National and State Houses of Assembly Election Tribunal sitting in Makurdi, Benue State, delivered on 9/9/2019, in which the petition of the Appellants was

dismissed is affirmed.

The 1st and 3rd Respondents are entitled to costs against the Appellants which is assessed at N200, 000.00.

JUMMAI HANNATU SANKEY, J.C.A.: I had the opportunity to read in advance a draft copy of the lead Judgment of my learned brother, Otisi, JCA allowing the Appeal.

The instant Appeal is an Appeal to Cross-Appeal No. CA/MK/EP/HR/39/2019, which was allowed earlier today.

I agree with and adopt as mine the comprehensive resolution of the issues raised therein.

I also dismiss the Appeal. I abide by the orders made in the lead Judgment including the order as to costs.

JOSEPH EYO EKANEM, J.C.A.: I agree

Appearances:

G. T, Yongo, Esq., with him S. A. Akpehe, Esq., and T. Nzughul, Esq.For Appellant(s)

T. D. Pepe., Esq., with him, E. O. Agena, Esq., for the 1st Respondent.

O. P. Ogar, Esq., holding the brief of D.E. Okoro, Esq., for 3rd RespondentFor Respondent(s)

Appearances

G. T, Yongo, Esq., with him S. A. Akpehe, Esq., and T. Nzughul, Esq.For Appellant

AND

T. D. Pepe., Esq., with him, E. O. Agena, Esq., for the 1st Respondent.

O. P. Ogar, Esq., holding the brief of D.E. Okoro, Esq., for 3rd RespondentFor Respondent

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