HON. BASSEY OFFIONG ETIM & ANOR v. SENATOR BASSEY ALBERT AKPAN & ORS (2019)

HON. BASSEY OFFIONG ETIM & ANOR v. SENATOR BASSEY ALBERT AKPAN & ORS

(2019)LCN/13810(CA)

In The Court of Appeal of Nigeria

On Friday, the 18th day of October, 2019

CA/C/NAEA/S/368/2019

RATIO

ELECTION PETITION: WHETHER PRESENTATION OF FORGED CERTIFICATE IS A GROUND FOR DISQUALIFICATION FROM ELECTION INTO THE SENATE AND HOUSE OF REPRESENTATIVES

By virtue of Section 66 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a person shall not be qualified for election to the Senate or House of Representative if he has presented a forged certificate to the Independent National Electoral Commission. Section 65 thereof provides that subject to the provisions of Section 66 of the said Constitution, a person shall inter alia be qualified for election into the Senate if he has attained the age of thirty-five years of age.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

FORGERY: DEFINITION OF THE OFFENCE
Forgery is the act of making a false document or altering a genuine one for same to be used. Thus, for an instrument to be false it must tell a lie about itself in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was made or altered. See PDP V OGAR & ORS (Supra).PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ELECTION PETITION: THE BURDEN OF PROOF ON THE PETITIONER WHEN HE ACCUSES THE RESPONDENT OF A CRIME AND MAKES IT THE BASIS OF HIS PETITION
In NWOBODO V ONOH & ORS (1984) INSCC 1 at 3, it was held that where in an election petition the petitioner makes an allegation of a crime against the respondent, and thus makes the commission of the crime, the basis of his petition Subsection 6, of Section 137 of the Evidence Act imposes a strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden his petition fails. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

FORGERY: INGREDIENTS REQUIRED TO PROVE THE OFFENCE OF FORGERY

The ingredients to establish the offence of forgery are as follows:-
(a) That there is a document in writing;
(b) That the accused knew the document to be false;
(c) That the accused presented the said document to the other party with the intention that it would be acted upon to the detriment of the victim in the believe that it is genuine.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

FALSIFICATION OF AGE: HOW TO PROVE BEYOND REASONABLE DOUBT
It was also held in plethora of judicial decisions including the case of AGI V PDP (Supra) being relied by all counsel that in proving falsification of age beyond reasonable doubt, it is not enough for the plaintiff to demonstratethe act of falsification of age. It is thus incumbent on him to establish that the act was intentional in which case the person may gain an advantage by the alleged act of criminality.
Similarly, for forgery or falsification of age to be sustained the document purportedly forged must be a false representation of a genuine document as it will be preposterous to allege the forgery of a fake or counterfeit document. See ACB PLC V NDOMA-EGBA (2000) 8 NWLR (prt 667) 387 and ADEWALE V OLAIFA (2012) 17 NWLR (prt 1330) 478.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ELECTION PETITION: STANDARD OF PROOF FOR AN ACTION BROUGHT UNDER SECTION 31(5) OF THE ELECTORAL ACT 2010

The standard of proof required in an action founded on Section 31 (5) of the Electoral Act 2010 (as amended) is proof beyond reasonable doubt. Also, the allegations being criminal in nature the standard of proof is that required under Section 135 (1) and (2) of the Evidence Act, 2011.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

FORGERY: THE BEST EVIDENCE TO PROVE A FALSE CERTIFICATE

In MOHAMMED V WAMMAKO (2018) 3 NWLR (prt 1619) 573 at 500, it was held that the best evidence to prove a false certificate is a report from the school that issued the certificate. In the instant case, there is apparently no report from the school that issued the certificate. Thus, the appellants failed to show and prove that the information and also the certificate, Exhibit C presented to 3rd respondent in 2015 by the 1st respondent was forged.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ELECTION PETITION: WHAT MUST EXIST IN ORDER TO DISQULAIFY A CANDIDATE FOR FALSIFICATION
To disqualify a candidate for falsification, the infraction must relate to the very point on which the disqualification depends. In other words, where an alleged falsified document is not a qualifying factor under the Constitution, its presentation cannot disqualify an otherwise qualified person. The purport of Section 31 (5) of the Electoral Act 2010 (as amended) is not to disqualify a candidate who is otherwise qualified under the 1999 Constitution of the Federal Republic of Nigeria to contest the relevant election. See A.D. V FAYOSE (2005) 10 NWLR (prt 932) and AGI V PDP (supra).PER MUHAMMED LAWAL SHUAIBU, J.C.A.

EVIDENCE: A DOCUMENT IS ADMISSIBLE BASED ON IT’S RELEVANCE

The general rule is that relevancy governs admissibility and the Courts have long moved away from the realm of technicalities to the platform of substantial justice. Also substantial justice demands that the trial Court or Tribunal must consider all the relevant documents placed before it and use same to determine the case between the parties.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE: WHETHER DOCUMNTARY EVIDENCE NEEDS TO BE SPECIFICALLY PLEADED IN ORDER TO BE ADMISSIBLE

Documentary evidence need not be specifically pleaded in order to be admissible, so long as the facts and not the evidence by which such document is covered are expressly pleaded. See SANI V KOGI STATE HOUSE OF ASSEMBLY (2019) 4 NWLR (pt 1661) 172.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

EVIDENCE: DIFFERENCE BETWEEN ADMISSIBILITY AND PROBABTIVE VALUE OR WEIGHT OF A DOCUMENT

There is also a difference between the admissibility of a document and the probative value or weight to be attached to it. The probative value to be attached to admitted evidence depends on the purpose for which it was tendered. In this case, Exhibit K lack the evidentiary worth of being the basis for disqualifying the 1st respondent from contesting an elective office under the 1999 Constitution (as amended).PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ADMINSTRATIVE LAW: WHEN A MATTER IS RELATED TO EMBEZZLEMENT OR FRAUD, IT IS NOT WITHIN THE JURISDICTION OF AN ADMINISTRATIVE PANEL

The law is also settled that where there are serious allegations of embezzlement or fraud, the matter is beyond the power of administrative panel. It has to be pronounced upon by Court of law because conviction for offences and imposition of penalties and punishments are matters appertaining exclusively to the judicial power.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ELECTION PETITION: WHAT IS A VALID OR LAWFUL VOTE?

A valid or lawful vote in the first place is a vote cast at an election by a registered and duly accredited voter which is in compliance with the provision of the Electoral Act. Thus, once a vote cast at an election fully satisfies the requirements of the Electoral Act, that such a vote is a valid and/or lawful vote for the purpose of collating or computing the total or majority of valid votes cast at the said election. See EJIOGU V IRONA (2009) 4 NWLR (prt. 1132) 513.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ELECTION PETITION: ON WHOM DOES THE BURDEN OF PROOF LIE

It is now settled that where an allegation of non-compliance with the electoral law is made, the onus lies on the petitioner firstly to establish the substantial non-compliance and secondly, that it did or could have affected the result of the election. It is after the petitioner has established the forgoing that the onus would shift to the respondent whose election is challenged, to establish that the result was not affected. See BUHARI V OBASANJO (2005) 13 NWLR (prt 941)1.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

DOCUMENT: A DOCUMENT THAT IS TENDERRED MUST BE LINKED TO THE PARTY’S CASE

It is not sufficient to merely tender document without linking them to specific aspect of the partys case. See BABABE V STATE (2019) 1 NWLR (prt 1652) 100, LADOJA V AJIMOBI (2016) 10 NWLR (prt 1519) 87 and UCHA V ONWE (2011) 4 NWLR (prt 1237) 386.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

ELECTION PETITION: SECTION 168(1) OF THE EVIDENCE ACT, 2011: REBUTTABLE PRESUMPTION THAT ELECTION RESULTS DECLARED ARE CORRECT AND AUTHENTIC

Also by virtue of the provisions of Section 168 (1) of the Evidence Act 2011, there is a rebuttable presumption that the results of any election declared by INEC is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In this case, the appellants having failed to rebut this presumption, the presumption of correctness and authenticity inures in favour of the 1st respondent. I accordingly resolved this issue against the appellants.

ELECTION PETITION: WHETHER BREACH OF THE RULES OF THE ELECTORAL ACT 2020 INVALIDATES AN ELECTION

The Supreme Court in BUHARI V OBASANJO (Supra) has held that a breach of the rules enacted in the Electoral Act 2002 does not ipso facto invalidate an election. It is only where the breach can be successfully challenged in accordance with the provisions of Section 134 (1) of the Act that an election can be invalidated. And if the petitioner believed that there have been breaches in the conduct of an election, then the breaches would have to be questioned under any or all of the relevant grounds set out in Section 134 (1) of the Electoral Act now Section 138 (1) of the extant law.PER MUHAMMED LAWAL SHUAIBU, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

Between

1. HON. BASSEY OFFIONG ETIM
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)

AND

1. SENATOR BASSEY ALBERT AKPAN
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The 1st appellant and the 1st respondent contested for the 23rd February, 2019 General Election for the Akwa Ibom North East Senatorial district. The 1st appellant contested the election under the platform of the All Progressive Congress (APC) while the 1st respondent contested under the Peoples Democratic Party (PDP). At the end of the election, the 3rd respondent declared and returned the 1st respondent as the winner of the said election having scored majority of the lawful votes cast at the election.

The appellants were dissatisfied and filed an election petition before the National Assembly and State Houses of Assembly Election Petitions Tribunal, Uyo, Akwa Ibom State. The grounds of the petition is contained in paragraph 13 of the said petition and it read as follows:-
(a) That the 1st Respondent, Senator Bassey Albert Akpan, the person whose election is being questioned was at the time of the said election to the office of the Akwa Ibom North East Senatorial District seat is not qualified to contest the National Assembly election held on the 23rd

February, 2019.
(b) That the said election was invalidated by reason of corrupt practices and non compliance with the provisions of the Electoral Act 2010 (as amended) and INEC Guidelines and manual for Electoral Officials 2019.
(c)That the said Bassey Albert Akpan was not elected by the majority of lawful votes cast in the National Assembly election for the Akwa Ibom North East Senatorial District seat held on the 23rd of February, 2019.

Upon being served with the petition, all the respondents filed their respective replies and also incorporated objections challenging some of the grounds of the petition and the jurisdiction of the lower Tribunal to hear and determine the petition itself.

The appellants at the lower Tribunal in prove of their petition called a total number of 6 witnesses, i.e. pw1 – pw6 and tendered 821 documents which were admitted and marked as Exhibits P1 – P821. The 1st respondent on his part in his defence at the Trial Tribunal called a total number of 8 witnesses, RW1 – RW8 and tendered 34 documents which were admitted in evidence and marked as Exhibits R1-

R35 respectively. The 2nd respondent after reviewing the evidence given by the witnesses called by the Petitioners and the 1st respondent elected not to call witnesses but in the course of cross examination, tendered 1 document which was admitted in evidence and marked as Exhibit 36.

Similarly, the 3rd respondent elected to rest his case on the Petitioners case and that of the 1st Respondent but tendered 1 document during cross examination through RW5. The document was admitted in evidence and marked as Exhibit R27.

In its considered ruling on the respondents preliminary objections, the lower Tribunal overruled the objection of the 3rd respondent which is aimed at striking out the entire reply of the petitioners and thus found the petitioners? reply as competent. The lower tribunal however found paragraphs 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, and 35 of the petitioners reply to the 1st respondents reply as incompetent and accordingly struck them out. Respecting the preliminary objection of the 2nd respondent, the lower tribunal held that ground (b) in paragraph 13 (b) of the

petition together with other paragraphs predicated on the said ground namely paragraphs 24 – 63 of the petition offensive to the fundamental prerequisite of a competent petition. The said ground and paragraphs 24 – 63 of the petition were accordingly struck out for being incompetent.

On the merit of the petition, the lower Tribunal after considering both the oral and documentary evidence presented by the respective parties held that the petition has no merit and accordingly dismissed it.

Being dissatisfied, the appellants appealed to this Court contending that the election Tribunal was wrong in holding that the appellant did not discharge the onus of proof on them that the respondents presented forged certificates to the Independent National Electoral Commission. They also contended that the election Tribunal erred for not considering the evidence of perjury against the 1st respondent and relying on the presumption of regularity and validity of the election on the face of various polling units results that were not signed, stamped and dated by presiding officers.

The appellants notice of appeal at pages 1107

1126 of the record of appeal contains eleven grounds of appeal. Distilled from the said eleven grounds of appeal, learned counsel for the appellants formulated six issues for the determination of this appeal as follows:-
1. Whether within the meaning and intendment of Section 66 (1) (i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) read along with Section 138 (1) (a) of the Electoral Act, 2010 (as amended), the 1st respondent qualified to participate in the election held on 23rd of February, 2019 for the office of senate for Akwa Ibom North East Senatorial District (Distilled from grounds 1 and 3).
2. Whether having regard to the settled principle in our jurisprudence of stare decisis vis?a?vis, the circumstances of this case, the lower Tribunal was right in declining to follow the decisions of this Honourable Court in ANGOS DIDE & ANOR V EBIOTU SELEKE-TIMIBI & ORS (2009) LPELR 4038 and ABDULRAUF ABUBAKAR MODIBBO V MUSTAPHA USMAN & 2 ORSunreported judgment of the Supreme Court of Nigeria delivered on the 30th of July, 2019 in SC. 790/2019 (Distilled from

ground 2).
3. Whether from pleadings and evidence led the lower Tribunal was justified to hold that an unsigned and undated certificate presented to INEC as a genuine certificate does not amount to giving forged document (Distilled from grounds 4 and 5).
4. Whether from the pleadings and evidence led by all the parties the lower Tribunal was justified to have discountenanced Exhibit K duly pleaded and listed, in the appellants? petition. (Distilled from grounds 6 and 7).
5. Whether the appellants proved the allegation of the 1st respondent not being elected with the majority of the lawful votes cast. (Distilled from grounds 8, 9 and 10).
6. Whether the lower Tribunal was right when it decided that the appellants petition was a violation of Section 138 (1) (b) of the Electoral Act, 2010 (as amended) on account of joining both corrupt practices and non-compliance together as one ground (Distilled from ground 11).

Learned Senior Counsel for the 1st respondent, Solomon Umoh SAN on his part formulated seven issues for the determination of this appeal thus:-
1. Whether the Honourable Trial Tribunal was right when it found and

held that the 1st respondent herein did not present forged and/or false age declaration in aid of his qualification to contest election into Akwa Ibom North-East Senatorial District which held on the 23rd of February, 2019
2. Whether the Honourable Trial Tribunal was right when it held that the 1st respondent is at liberty to rely on any WAEC Certificate of his choice and that his decision not to produce or rely on a Certificate from St. Patricks College does not amount to giving false information on oath?
3. Was the Honourable Trial Tribunal right when it found and held that the 1st respondent did not present a forged WAEC Certificate to the 3rd respondent in aid of his qualification for the 2015 Election into Akwa Ibom North East Senatorial District
4. Whether the Honourable Trial Tribunal was right when it found and held that the appellants did not prove their allegation that the 1st respondent was indicted by the Special Presidential Investigation Panel of Enquiries for Fraudulent Activities and Recovery of Public Properties
5. Was the Honourable Trial Tribunal right when it found and held that the appellants have woefully

failed to discharge the burden of proving non-compliance with respect to signing and stamping of Forms EC8A (1) and also to rebut the presumption in favour of the return of the 1st respondent by the 3rd respondent as the winner of the Akwa Ibom North-East Senatorial District election which held on the 23rd of February, 2019
6. Whether the Honourable Trial Tribunal was right when it held that the appellants failed to prove their allegation that it was the 1st appellant that won the election into Akwa Ibom North-East Senatorial District by the majority of the lawful votes cast
7. Was the Honourable Trial Tribunal right when it found and held that ground B of the appellants petition was incompetent

On behalf of the 2nd respondent, learned counsel G. A. Umoh Esq., formulated five issues as follows:-
1. Whether the age declaration (Exhibit L) of the 1st respondent submitted to the 3rd respondent is forged and thus disqualified the 1st respondent from participating in the election held on the 23/2/2019 for Akwa Ibom North East Senatorial District?
2. Whether any evidence was led to prove Exhibit C being a statement of result as forged

document and was considered by the 3rd respondent in qualifying/clearing the 1st respondent to participate in the election held on the 23/2/2019 for Akwa Ibom North East Senatorial District
3. Whether the Lower Tribunal was right in discountenancing Exhibit K
4. Whether the 1st respondent scored the majority lawful votes cast at the election conducted by the 3rd respondent on the 23/2/2019 into the senate seat for Akwa Ibom North East Senatorial District
5. Whether Ground B upon which the petition was presented is not defective in view of Section 138 (1) of the Electoral Act 2010 (as amended) and the ground of appeal not inconsistent with the judgment of the lower Tribunal
Mustapha I. Abubakar, Esq., formulated four issues on behalf of the 3rd respondent for the determination of this appeal. These issues are:-
1. Whether on the strength of the pleading and evidence before the trial Tribunal, the Tribunal was right in its findings to the effect that the appellants failed to prove that the 1st respondent presented forged Certificates/Credentials or information to INEC as to disqualify him from contesting the election.
2. Whether the

trial Tribunal was right in discountenancing or expunging Exhibit K from evidence and in its conclusion that there was no legally admissible evidence to prove the appellants? allegation that the 1st respondent has been indicted.
3. Whether the trial Tribunal was right in striking out ground (b) of the appellants? petition for non-compliance with Section 138 (1) (b) of the Electoral Act, 2010, and if not, whether a miscarriage of justice was thereby occasioned to the appellants.
4. Whether the trial Tribunal was justified in its findings to the effect that the appellants did not prove their allegation that the 1st respondent was not elected by majority of lawful votes cast.

It is pertinent to state at this juncture that the learned appellants counsel had respectively filed what he described as appellants reply to the respondents brief of argument on point of law. The said replies are identical in all material respect in the sense that the arguments canvassed therein are exactly the same. For instance, in all the replies, learned counsel has inter alia submitted that forgery of certificate for the

purpose of election or electoral process and forgery under criminal law are not the same. Thus, our Court being a Court of law and also a Court of public policy cannot shut its eyes to the evidence on record if it would help in doing justice to the case.
The provisions of Order 19 Rule 5(1) of the Court of Appeal Rules 2016 specifically provides for filing of reply brief not reply on point of law thus
5(1) The appellant may also, if necessary within fourteen days of the service on him of the respondents brief, file and serve or cause to be served on the respondent a reply brief which deal with all new points arising from the respondents brief.”
By virtue of Paragraph 7 of the Practice Direction on Election Appeals the period for filing reply brief is however reduced to 3 days of the service of respondent?s brief. Be that as it may, a reply brief is meant to respond to new issues raised by the respondent in his brief. It is not an opportunity to re-argue appellants case or even improve on it. Where a reply brief goes outside parameters set for it, the Court should ignore and discountenance it. See

ANDREW V INEC (2018) 9 NWLR (prt. 1625) 507 In the instance case, the respective appellant?s reply on point of law being an improvement of their briefs clearly goes out of the parameters set out for reply brief. This Court will unhesitatingly ignore and discontinuance it.

Before I consider the issues, it is important to examine the broad facts as presented by the appellants at the lower Tribunal. The appellants contended that the 1st respondent was at the time of the election not qualified to contest the election based on the alleged submission of forged or falsified credentials to INEC and that the 1st respondent does not have a valid WAEC Certificate, National Diploma Result and false Age Declaration. It was also the case of the appellants that the 1st respondent lied on oath when in response to the question in the Form CF 001 he submitted to INEC in respect of the 2019 General Election, whether he had ever been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or Administrative Panel of Inquiry, he responded NO”.

Appellants alleged that the said election was invalidated by corrupt practices

and non-compliance with the provisions of the Electoral Act on the ground of non-use of Electronic Smart Card Readers provided for accreditation and verification of voters in several polling units, thuggery, vote buying as well as non-dating, signing and stamping of the relevant Form EC8A (II) used for the said election by presiding officers. As a consequence thereof, the 1st respondent was not elected by the majority of lawful votes cast in the Election.

A careful perusal of the issues for determination formulated by learned counsel for the parties shows that they are very much similar even though they differ in wordings. Mindful of these similarities, I find it convenient to treat this appeal based on the issues formulated in the 2nd respondents brief of argument in view of their brevity, conciseness and elegance in the way they were couched. Also in doing so, I shall consider the issues seriatim.

ISSUE I
This issue queries the qualification of the 1st respondent to contest the said election in view of Exhibit L submitted to INEC pursuant to Section 31 (2) of the Electoral Act 2010 as amended. The learned counsel for the appellant

submitted that the presentation of INEC Form CF001 made by the 1st respondent wherein he verified same to be true even though they were false or untrue age certificate tantamount to his presenting forged certificate to INEC in terms of Section 66 (1) (i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The act of forgery according to the learned counsel is consummated when any person makes a false document or writing knowing it to be false and with intent that it may be used or acted upon as genuine.

He submitted that for the fact that the 1st respondent attached Exhibit L to Exhibit J in order to aid his qualification knowing fully well that the content of Exhibit L to be forged or corrupted or tainted Exhibit J as a forged certificate within the contemplation of Section 66 (l) (i) of the 1999 Constitution (as amended). He referred to the cases ofANGOS DIDE & ANOR V EBIOTU SELEKETIMIBI & ORS (2009) LPELR 4038; ABDULRAUF ABUBAKAR MODIBBO V MUSTAPHA USMAN & 2 ORS (unreported) judgment of the Supreme Court of Nigeria delivered on the 30th of July 2019 in Suit No. SC. 790/2019.

HON. AIDOKO ALI USMAN & ANOR V OCHEJA EMMANUEL DANGANTA & ORS Appeal No. CA/A/EPT/58/2/2011 (unreported) judgment delivered on Tuesday the 13th day of December, 2011 and BAYO V NJIDA (2004) 8 NWLR (prt 876) 544 and 594 ? 595 to the effect that a candidate can only be said to have been validly elected if, and only if at the time he contested the election he was qualified to contest the election. And that an infraction of Section 66 (1) (i) of the 1999 Constitution (as amended) read together with Section 138 (l) (a) of the Electoral Act, 2010 (as amended) is a disqualifying factor.

In his response to the appellants? counsel submission (Supra), learned counsel to the 1st respondent argued that an allegation of presentation of false or forged certificate of age declaration being an allegation of the commission of Crime, the standard of proof required is proof beyond reasonable doubt and the onus is on the appellants who assert same. He referred to AGI V PDP (2017) 17 NWLR (prt 1595) 386 at 454 and KAKIH V PDP (2014) 15 NWLR (prt 1430) 374 at 423 in submitting that the appellants have

failed to show that the 1st respondent knew that his place of birth in Exhibit L is not correct and or the information therein was false.

In further argument, learned counsel submitted that the allegation of the appellants with respect to the presentation of false or forged age declaration as per the petition filed, is imprecise and vague as same is bereft of particulars in the pleading and thus falls short of the standard requirement of pleadings with respect to allegation of forgery.

He finally submitted that the appellants have neither shown the detriment they suffered nor the advantage the 1st respondent gained as a result of the differences in the place of birth of the 1st respondent. And the appellants also failed to show that the differences in the place of birth of the 1st respondent was done with a criminal intent of meeting the Constitutional age of 35 years set by the Constitution. He thus concluded that the lower Tribunal was right to have found and held that the differences in the place of birth of the 1st respondent is a mere discrepancy which is immaterial and in consequential as same do not add or reduce the age of the 1st

respondent.

On his part, learned counsel to the 2nd respondent submits that there is no inconsistency as regards the age or date of birth of the 1st respondent except the place of birth which was clarified by the 1st respondent himself and same does not disclose any intent to deceive the 3rd respondent regarding his qualification to contest the election and neither was the 3rd respondent deceived at all.

Learned counsel also submitted that for an instrument to be false it must tell lie about itself in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered. He submits that there is no evidence on record by the appellants to prove forgery of the 1st respondent?s age declaration. He referred to OGAH V IKPEAZU & ORS (2017) LPELR ? 42372 (SC).

He finally distinguished the facts of this case and that of ANGOS DIDE & ANOR V EBIOTU SELEKETIMIBI & ORS (Supra) cited and relied upon by the appellants.

The 3rd respondent?s submission on this issue is that there is no ground in the

petition based on Section 138 (1)(e) of the Electoral Act, 2010 (as amended) alleging that the 1st respondent submitted to INEC an affidavit containing false information of a fundamental nature in aid of his qualification for the election. Thus, in the absence of a ground in the petition predicated on Section 138 (1) (e) above, the point raised in paragraphs 4:37 and 4:38 of the appellants? brief bordering on submitting of an affidavit containing false information to INEC is incompetent and it goes to no issue.

As stated earlier that the key issues which this Court is being called upon to resolve in respect of issue 1 are whether the 1st respondent lied on oath by attaching a false age declaration to his form CF001 and whether the difference in the place of birth of the 1st respondent is a mere discrepancy which is inconsequential.

In their quest to establish the allegation of false age declaration against the 1st respondent before the lower Tribunal, the appellants tendered Exhibit L through pw3. Exhibit L is the 1st respondent?s age declaration deposed to by one Barr. Clement Albert Akpan stating his date of birth as 28th October, 1972

and place of birth as Ididep Usuk in Ibiono Ibom Local Government Area of Akwa Ibom State. At page 1047 of the record of appeal, the 1st respondent gave evidence as to his place of birth as follows:-
?I have seen the age declaration certificate. It was done by my brother. I contested the election with the age declaration certificate. My brother who deposed to the age declaration died in April, 2014. I completed the form on 16/10/18. As at that time, I had noticed the discrepancy as regard the place of birth. In the 2014 form CF 001 there is no place of birth. What I was asked for was the date of birth. I have seen paragraph 12 of Exhibit R34. In 2014 I did not write my place of birth. My uncle was alive when I completed my form.”

The learned judges of the lower Tribunal after considering the pieces of evidence presented by the parties however found at pages 1099 ? 1100 of the record of appeal thus:-
From the above evidence it is safe to say that what the petitioners mean by the allegation that the 1st respondent attached a false age declaration is not that he falsified his age but that in Exhibit L, he swore to an oath that

he was born in Ididep Usuk Village in Ibiono Ibom Local Government Area Akwa Ibom State whereas in the Form CF 001 he submitted for the 2019 general elections, he indicated that he was born in Calabar, Cross Rivers State.
We have thoroughly perused Exhibits J and L. it is true that the 1st Respondent?s place of birth is stated in Exhibit J to be Calabar, Cross Rivers State while in Exhibit L it is Ididep Usuk in Akwa Ibom State. The 1st Respondent was confronted with this discrepancy and he had this to say in his evidence under cross examination;
?I was born in Calabar, Cross River State. I was born on October 28 1972. I come from a village in Ibiono Local Government called Ididep Usuk ? My late senior brother Barrister Clement Albert Akpan who died in April 2014 made the declaration of age in 2014 stating that I was born in Ididep Usuk so I relied on it in filing my form CF 001. It is my late senior brother who was born in Ididep Usuk. He mistakenly related it to me. I want to state that every form of mine as well as my international passport and National Identity card reflects Calabar as my place of birth. My late uncle, Chief

Robert Akpan who died in December 2017 and who was present at the time of my birth verified this to my family
The lower Tribunal continued as follows:-
?This piece of evidence was not challenged in any way by the petitioners. It is important to state first and foremost that Exhibit L, the statutory declaration of age was not sworn to by the 1st respondent but by his elder brother who is the deponent. Secondly, the difference in the place of birth of the 1st Respondent in our view is a mere discrepancy which is inconsequential. What is material is his date of birth which remained the same both in 2015 and 2019 general elections Forms. Furthermore, this type of discrepancy which does not in any way aid the disqualification of the 1st Respondent to contest the 2019 election does not constitute a disqualifying factor as it is trite law that it is only false information supplied in aid of a candidate?s qualification that disqualifies him.”

By virtue of Section 66 (1) (i) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a person shall not be qualified for election to the Senate or House

of Representative if he has presented a forged certificate to the Independent National Electoral Commission. Section 65 thereof provides that subject to the provisions of Section 66 of the said Constitution, a person shall inter alia be qualified for election into the Senate if he has attained the age of thirty-five years of age.
The appellants? contention was not that the 1st respondent did not attain the age of thirty-five years but that the age declaration he presented to 3rd respondent was false and or a forged document. Forgery is the act of making a false document or altering a genuine one for same to be used. Thus, for an instrument to be false it must tell a lie about itself in the sense that it purports to be made by a person who did not make it (or altered by a person who did not alter it) or otherwise purports to be made or altered in circumstances in which it was made or altered. See PDP V OGAR & ORS (Supra).
In NWOBODO V ONOH & ORS (1984) INSCC 1 at 3, it was held that where in an election petition the petitioner makes an allegation of a crime against the respondent, and thus makes the

commission of the crime, the basis of his petition Subsection 6, of Section 137 of the Evidence Act imposes a strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden his petition fails. The appellants are by virtue of Section 31 (5) of the Electoral Act, 2010 (as amended) entitled to seek redress where a candidate makes a false declaration in his form CF 001 but that grievance being a criminal in nature must be proved beyond reasonable doubt. See Section 135 (1) and (2) of the Evidence Act, 2011. The ingredients to establish the offence of forgery are as follows:-
(a) That there is a document in writing;
(b) That the accused knew the document to be false;
(c) That the accused presented the said document to the other party with the intention that it would be acted upon to the detriment of the victim in the believe that it is genuine.
It was also held in plethora of judicial decisions including the case of AGI V PDP (Supra) being relied by all counsel that in proving falsification of age beyond reasonable doubt, it is not enough for the plaintiff to demonstrate

the act of falsification of age. It is thus incumbent on him to establish that the act was intentional in which case the person may gain an advantage by the alleged act of criminality.
Similarly, for forgery or falsification of age to be sustained the document purportedly forged must be a false representation of a genuine document as it will be preposterous to allege the forgery of a fake or counterfeit document. See ACB PLC V NDOMA-EGBA (2000) 8 NWLR (prt 667) 387 and ADEWALE V OLAIFA (2012) 17 NWLR (prt 1330) 478.
In the instant case, the appellants did not lead any evidence to show that Exhibit L hitherto presented to the 3rd respondent in 2015 was a false or forged document and that same was done with the criminal intent of meeting the Constitutional age limit of thirty-five years set out as the age limit for such political office. I am therefore on all fours with the submissions of the learned counsel for the respondents that unlike in the cases of ANGOS DIDE & ANOR V EBIOTU SELEKETIMIBI & ORS and ABUBAKAR MODIBBO V MUSTAPHA USMAN & 2ORS (Supra), the 1st respondent has

not presented any contrary date to the date of birth found on Exhibit L and that the 1st respondent proffered explanations to the said allegations when he testified as (RW8) before the lower Tribunal. I have also considered the unreported cases of SENATOR USMAN V JIBRIN in Appeal NO CA/A/EPT/723/2019 and JOSEPH V ENYONG in Appeal NO CA/A/EPT/432A/2015 to the effect that certificate within the meaning of Section 66 (1) (i) of the Constitution means any document that is forged and not necessarily those documents that pertains to qualification or disqualification under Section 65 of the Constitution such as birth certificate or educational certificate. The distinguishing features of these cases are that the allegations of forgery or falsification of age in the instant case is nowhere supported by any shred of evidence and thus the allegation is not proved by the appellants. That being the case, issue 1 is therefore resolved against the appellants.

ISSUE 2
As in issue 1, the appellants attacked the veracity of Exhibit C, the statement of result alleging that same was forged. For the avoidance of doubt, Exhibit C is a

certified true copy of West African Council Notification of result. It was also attached to Form CF 001 and bears the name of Orjaih Stella Nkiru.

Proffering argument on this issue, learned counsel for the appellants submitted that the deliberate refusal of the 1st respondent not to have attached evidence of his attendance of St. Patrick?s college, Ikot Ansa Calabar, Cross River State in his Form CF 001 is deceitful and renders the information unauthentic.

Still in argument, learned counsel submitted that the entirety of Exhibits R34 and C being used by the 1st respondent are not only worthless documents but that they are meant to deceive the 3rd respondent in aid of his qualification.

He further submitted that Exhibit C has no signature, undated and that it was surreptitiously incorporated into the 1st respondent?s Form CF 001 to boost or improve on his educational qualification. Learned counsel relied on the authority in the unreported case of ABDULRAUF ABUBAKAR MODIBBO V MUSTAPH USMAN & 2 ORS to contend that the action of the 1st respondent in submitting forged certificate to INEC is contrary to

Section 66 (1) (i) of the 1999 Constitution (as amended).

On the part of the 1st respondent, it was submitted that contrary to the appellants? submission, the 1st respondent attached a valid and authentic WAEC Certificate though not from St. Patrick?s College to his Form CF 001 and that he is at liberty to put forward whichever certificate he chooses as what is required of him is to show that he has a valid claim of having educated up to secondary school certificate level.

It was submitted on behalf of the 2nd respondent that although the Exhibit C was admitted in evidence as a certified true copy, it has no probative value same having not been tendered by the maker or the maker called as witness to speak to the document and answer questions on them.

It was further submitted that certificate forgery is in the realm of criminal allegation and must be proved beyond reasonable doubt. Reliance was placed on the evidence of pw6 and the cases ofACN V LAMIDO & ORS (2011) LPELR 9174 and the evidence of pw6 to contend that there was no evidence, talk less of strong evidence to prove the allegation.

On the part of the 3rd respondent, it was argued that the 1st respondent never claimed Exhibit C to be his certificate and aside from the fact that he had his own WAEC certificate which he duly presented to the 3rd respondent, Exhibit C was simply inadvertently mixed up with the credentials of the 1st respondent submitted in 2015. It was thus submitted that the trial Tribunal was perfectly right in holding that the appellants failed to prove the allegations of forgery perjury and giving false information to INEC against the 1st respondent.

The fulcrum of the appellants? complaint as regards issue 2 is that, the 1st respondent intended to deceive or gain an advantage by including Exhibit C in the credentials he submitted along with his Form CF 001 to INEC in respect of the 2015 General Election.
I have stated elsewhere in this judgment that Section 66 (1) (i) of the Constitution sets out the factors that disqualify a candidate from contesting election into the Senate or House of Representative.
Also the main thrust of Section 31 (5) of the Electoral Act, 2010 (as amended) is the falsity of an information given by a candidate in the affidavit or

any document submitted by the candidate to Independent National Electoral Commission (3rd respondent). Thus, any complaint of falsification against a candidate for a general election must relate to the grounds of disqualification or non-qualification stated in the 1999 Constitution. See NDUUL V WAYO (2018)16 NWLR (prt 1646) 548.
The standard of proof required in an action founded on Section 31 (5) of the Electoral Act 2010 (as amended) is proof beyond reasonable doubt. Also, the allegations being criminal in nature the standard of proof is that required under Section 135 (1) and (2) of the Evidence Act, 2011.
In the instant case, the appellants tendered Exhibit C through pw6 wherein he stated at page 1022 of the record of appeal thus:-
?When I said 1st respondent was not qualified to contest the election. I meant that he had presented a forged document. The certificate No. RS 2162701C in the name of Orjath Stella is forged.”
Responding to the allegation, the 1st respondent has this to say at page 1047 of the record of appeal:-
?The name on Exhibit is ORJATH STELLA NKIRU, and she is my lovely

wife, the said WAEC Certificate was in my wife?s maiden name.
In my family all family members? credentials are kept together and my wife?s WAEC result, Exhibit C was mistakenly attached to Exhibit ?A? alongside with Exhibit E by my personal aide who was saddled with photocopying relevant credentials and documents since he safe-keeps the credentials of my entire family members together. Exhibit C did not form part of the certificates to qualify me to contest the election; it is my WAEC Certificate Exhibit E that qualified me.”
In MOHAMMED V WAMMAKO (2018) 3 NWLR (prt 1619) 573 at 500, it was held that the best evidence to prove a false certificate is a report from the school that issued the certificate. In the instant case, there is apparently no report from the school that issued the certificate. Thus, the appellants failed to show and prove that the information and also the certificate, Exhibit C presented to 3rd respondent in 2015 by the 1st respondent was forged.
To disqualify a candidate for falsification, the infraction must relate to the very point on which the disqualification depends. In other words,

where an alleged falsified document is not a qualifying factor under the Constitution, its presentation cannot disqualify an otherwise qualified person. The purport of Section 31 (5) of the Electoral Act 2010 (as amended) is not to disqualify a candidate who is otherwise qualified under the 1999 Constitution of the Federal Republic of Nigeria to contest the relevant election. See A.D. V FAYOSE (2005) 10 NWLR (prt 932) and AGI V PDP (supra).
The appellants having failed to lead any credible evidence and also being unable to cross-examine the 1st respondent on his explanation to the said allegation, the lower Tribunal was therefore right to hold that Exhibit C did not form part of the certificates to qualify 1st respondent to contest the election. This issue is also resolved against the appellants.

ISSUE 3
This deals with the decision of the lower Tribunal expunging Exhibit K from the evidence at the conclusion of the trial on the premise that the appellants failed to prove that the 1st respondent has been indicted. Exhibit K is a letter of invitation served on the 1st respondent by the special presidential panel for

the recovery of public properties. The fuss on Exhibit K is that the 1st respondent?s form (CF001) submitted to INEC in his response to the question whether he had been indicted for embezzlement or fraud by a judicial commission of enquiry or an administrative panel of enquiry the 1st respondent answered to the question with an emphatic NO.

Arguing this issue, learned counsel for the appellants submitted that Exhibit K was pleaded and listed and the 1st appellant?s witness statement on Oath contained the same pleading but the lower Tribunal in its judgment jettisoned the said exhibit alleging that same was not pleaded. A Court of law according to the learned counsel has a duty to dispense with all pleadings and evidences adduced before it in reaching a final decision in a matter. Where there is a failure on the part of the Court to have recourse to the pleadings and evidence, without a valid reason, that would certainly amount to violation of the rights of the party. He referred to AKPAN V BOB (2010) 17 NWLR (prt 1233) 421, ASHIRU V AYOADE (2006) 6 NWLR (prt 976) 405, AWUSA V NIGERIAN ARMY (2018)

12 NWLR (prt 1634) and OLAYIOYE V OYELARAN (2019) 4 NWLR (prt 1662) 372.

In his reaction, the 1st respondent contended that in the entire gamut of their petition and their reply to the respondents? replies appellants never pleaded the said document. It was thus submitted that Exhibit K was wrongly admitted but rightly discountenanced by the lower Tribunal.

Assuming without conceding the fact that same was pleaded, it was submitted that the said Exhibit and other documents in that regard were dumped on the Court as the makers were never called to speak on the said documents. Therefore, Exhibit K attract no probative value relying on BELGORE V AHMED (2013) 8 NWLR (prt 1355) 60 at 100 and AUDU V INEC (NO.2) (2010) 13 NWLR (prt 1212) 456 at 520.

The 2nd respondent on its part contended that Exhibit K was not listed or pleaded or tendered by the maker or any person who has relationship with the document. Neither was any iota of evidence led on the said document. It was submitted that a mere reference to Exhibit K by the 1st respondent?s counsel does not absolve the appellants from

conforming to the legal burden they have toward that document.

It was further submitted that a conviction of the 1st respondent for any offence can only arise after his trial for the said offence relying on ONI V FAYEMI & ORS (2019) LPELR ? 46622.

Learned counsel for the 3rd respondent also alluded to the fact that the allegation that the 1st respondent was indicted has not been proved because there is no legally admissible evidence to sustain the allegation regard been had on the fact that the appellants did not plead or tender in evidence any judgment of a Court of law or tribunal showing that he was so convicted of any criminal offence. He submitted that only a conviction by a Court of law can disqualify a candidate from contesting election and that an indictment by a judicial commission of inquiry or administrative panel is not sufficient to disqualify a candidate from contesting an election into any elective office under the constitution. He referred to ACTION CONGRESS V INEC (2007) 12 NWLR (prt. 1048) 222 at 259 ? 260 and EFFIOM V CROSIEC (2010) 14 NWLR (prt 1213) 106 at 132.

In this case, the appellants alleged that the 1st respondent was indicted for fraudulent activities and tendered in evidence Exhibits 318 and 319 being the charge against the 1st respondent before the Federal High Court, Abuja and the report of the Special Presidential Investigation Panel. And the 1st respondent responded to the question in Form CF 001 on whether he had ever been indicted for embezzlement or fraud by a judicial or administrative panel of inquiry, and he emphatically put NO.

In NWAOGU V ATUMA (2013) 17 NWLR (prt 1364) 117, the Supreme Court has held that where a document is wrongly admitted in evidence by a Court, the same Court has the power and jurisdiction to expunge it at the judgment stage since it can only base its judgment on legally admissible evidence and documents. Thus,

the Court after admitting a document as evidence may at the conclusion of the trial expunge same if it turns out that the said evidence was wrongly received.

The contention here is whether the document(s) in question need to be specifically pleaded. Documentary evidence need not be specifically pleaded in order to be admissible, so long as the facts and not the evidence by which such document is covered are expressly pleaded. See SANI V KOGI STATE HOUSE OF ASSEMBLY (2019) 4 NWLR (pt 1661) 172.

It was also argued that Exhibit K was dumped on the lower Tribunal and its maker was never called to speak to it and thus it attracts no probative value. Where as in this case, document was merely tendered across the bar by counsel for a

party at the trial who did not and was in fact not in a position to answer questions or speak on it; and the maker was not called as a witness in such circumstance, the trial Court or Tribunal would not be bound to ascribe probative value to it. See BELGORE V AHMED (Supra), and ANDREW V INEC (supra).

ISSUE 4
This pertains the allegation that the 1st respondent was not elected with the majority lawful votes cast at the election conducted by the 3rd respondent on the 23/2/2019 into the senate seat for Akwa Ibom North-East Senatorial District. Appellants predicated their complaint on the facts that various polling units results were not duly signed, stamped and dated by the respective presiding officers.

Arguing this issue, learned counsel for the appellants submitted that the affected polling units results tendered and admitted in evidence not being signed and dated are worthless documents. And deduction of the invalid votes from the valid votes scored by the parties clearly shows that the non-compliance is substantial which invariably led to a change in the overall result of the election.

In further argument, learned counsel submits that there cannot be a presumption of regularity on a polling unit?s result that is not signed, stamped and dated by the presiding officer. He referred to OMOBORIOWO V AJASIN without providing the citation and UDUMA V ARUNSI (2012) 7 NWLR (prt 1298) 55 to the effect where the final figures obviously deciphered from the documentary evidence is different from that pleaded by the parties so long as it is supported by admissible evidence and would not lead to a miscarriage of justice, then the Tribunal is duty bound to make the correct finding on the figures.

Learned counsel to the 1st respondent submitted that from the evidence on the printed records, it is manifestly clear that the lower Tribunal was

right to have found and held that the appellants have not discharged the onus of rebutting the presumption in favour of the declaration and return of the 1st respondent as the Senator representing Akwa Ibom North-East Senatorial District in the Senate. He referred to MADUABUM V NWOSU (2010) 13 NWLR (prt 1212) 623 at 660 and ABUBAKAR V YAR’ADUA (2008) 19 NWLR (prt 1120) 1 at 143 to contend that the result of any election declared by the electoral commission is presumed to be correct and authentic but such presumption is rebuttable and the burden is on the party who disputes the correctness and authenticity of the result to lead credible evidence in rebuttal.

He submitted further that the entirety of the appellants? evidence in proving the allegations of non-compliance with the election in dispute are inadmissible for failure to distinguish between what they saw and what they heard. And that where the evidence of a witness is laced with hearsay evidence, the entire evidence will be jettisoned by the Court as it is not the duty of the Court to sieve the hearsay evidence from that evidence that is not hearsay. He referred

to KAKIH V PDP (2014) 15 NWLR (prt 1430) 374 at 418 – 419, GUNDIRI V NYAKO (2013) ALL FWLR (prt 698) 816 and BUHARI V INEC (2008) 19 NWLR (prt 1120) 246 at 391.

On his part, learned counsel for the 2nd respondent submits that there are 9 Local Government Areas in Akwa Ibom North-East Senatorial District but the appellants only called 4 witnesses from 4 Local Government Areas which means that no evidence was adduced at all in the remaining 5 Local Government Areas. The 4 witnesses called were ward agents and could only testify as to the election in their units which they voted. Worst still, the said 4 witnesses to wit pw1, pw2, pw4 and pw5, confirmed that the polling unit results of their wards shown to them were all stamped, dated and signed. Thus, the appellants failed to offer any prove and the presumption of authenticity of INEC result inures in favour of the 1st respondent. He referred to OKECHUKWU V INEC (2014) 17 NWLR (prt 1436) 255 and SENATOR JULIUS ALIUCHA & ANOR V CHIEF MARTIN NWASCHO ELECHI & ORS (2012) LPELR ? 7823.

?He finally submitted that the

appellants merely tendered the election results in Exhibits p1 ? p821 from the Bar without linking the said Exhibits to specific areas of their case. And that demonstration in open Court is not achieved where a witness simply touches a bundle of documents with numerous pages. He referred to ANDREW V INEC (Supra).

The 3rd respondent?s submission on this issue is not in any way different from other respondents, that none of the appellants? witnesses demonstrated and or linked their evidence with the polling units? result sheets to prove that they were indeed not dated or stamped. Thus, there is nothing to show that the score or tabulations contained in the petition were based on the official polling unit results of the affected polling units tendered before the tribunals were ever obtained from the 3rd respondent. The said scores cannot therefore be a true reflection of the correct result of the election.

?The main complaint of the appellants against the correctness or authenticity of the result of the election is that Forms EC8A (l) that is, the results from the polling units were not stamped, dated or signed

by the presiding officers. At the trial, only 4 witnesses including the 1st appellant testified in respect of the said allegation.

In the instant case, the evidence

adduced by the appellants regarding the allegation of non-stamping, signing or dating of Forms EC8A (1) were based on information they received from their agents at polling units and wards who were never called to testify. In his evidence pw6 said:-
?I did not go round all the polling units in my district. Every other thing I said about other units was all given to me by my agents. I was not around when all results were collated.?

In the circumstance, the appellants? evidence constitutes inadmissible hearsay evidence which the lower Tribunal rightly rejected. Aside being hearsay evidence, none of the 4 witnesses paraded by the appellants linked the election results, Exhibits p1 ? p821 to the specific polling units. When documents are tendered in evidence, their purport must be demonstrated in open Court by the party tendering them. It is not sufficient to merely tender document without linking them to specific aspect of the party?s case. See BABABE V STATE (2019) 1 NWLR (prt 1652) 100, LADOJA V AJIMOBI (2016) 10 NWLR (prt 1519) 87 and UCHA V ONWE (2011) 4 NWLR (prt 1237) 386.

ISSUE 5
This deals with competence of Ground B of the petition wherein the appellants faulted the decision of the lower Tribunal that voided the said ground on account of joining both corrupt practices and non-compliance together as one ground.

An election according to the learned appellants? counsel can be questioned on corrupt practices or on non-compliance with the Electoral Act or on both corrupt practices and non-compliance. Thus, combining corrupt practices and non-compliance with Electoral Act means relying two legs of one ground which is permissible under Section 138 (1) of the Electoral Act 2010 (as amended). He referred

UKPONG V ETUK unreported appeal No. CA/A/NAEA/269/2011, IDRIS KING V KOKORI (2008) LPELR ? 8333 and JOSEPH & ANOR V OKON ENYONG & 2 ORSdelivered on 29th August 2015 in appeal NO. CA/A/EPT/432A/2015.

It was submitted on the part of the 1st respondent that Ground B upon which issue five arose from is incompetent on the ground that it combines the allegation of corrupt practices and non-compliance used conjunctively in a single ground. The ground according to the learned counsel is incompetent for reason that corrupt practice and non-compliance can only be used distinctively. He referred to GOYOL V INEC (NO 2) (2012) 11 NWLR (prt 1311) 218 at 229 ? 230 and OJUKWU V YAR?ADUA (2009) 12 NWLR (prt. 1154) 142 in urging this Court to uphold the decision of the lower Tribunal that struck out Ground B of the petition for being incompetent.

On the part of the 2nd respondent, learned counsel submits that appellants have no legal right whatsoever to expand the language or wordings of Section 138 (1) (b) of the Electoral Act, 2010 (as amended) to

include/add ?and INEC Guidelines and Manual for Electoral Officials 2019? in their ground for questioning. Hence, the illegality is taken too far in adding ?INEC Guidelines and Manual? for Electoral Officials 2019 in the ground of the petition. He also relied on the authority in the unreported case of UKPONG & ANOR V ETUK & ORS (supra) per GARBA JCA at pages 45 ? 47 thus-
Stating the grounds on which an election petition is based clearly in an election is very fundamental and crucial to the existence and survival of such petition and so it is not a matter of technicality which can be overlooked as a mere irregularity.”

Aligning with the other respondents on this issue, learned counsel to the 3rd respondent submits that the lower Tribunal acted rightly in striking out the said Ground B of the petition along with paragraphs 24 – 63 predicated thereon on the ground that the law does not permit a petitioner to expand or add to the statutory ground as contained in Section 138 (1) of the Electoral Act 2010 (as amended).

By virtue of Section 138 (1) of the Electoral Act,2010 (as amended), an election may be questioned on any of

the following grounds, that is to say
(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,
(c) That the respondent was not duly elected by majority of lawful votes cast at the election, or
(d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
(e) That the person whose election is questioned had submitted to the commission affidavit containing false information of a fundamental nature in aid of his qualification for the election.
The main contention here relates to the manner in which the appellants couched ground B at the lower Tribunal. Ground B of the petition as contained in paragraph 13 (b) was couched as follows:-
That the said election was invalidated by reason of corrupt practices and non-compliance with the provision of the Electoral Act 2010 as amended and INEC Guidelines and Manual for Electoral officials 2019.”

To begin with, the above provision is in pari materia with the provisions of Section 134 (1) of the Electoral Act 2002 except for the addition of paragraph (e) of Sub-section (1) in the extant law. The Supreme Court in BUHARI V OBASANJO (Supra) has held that a breach of the rules enacted in the Electoral Act 2002 does not ipso facto invalidate an election. It is only where the breach can be successfully challenged in accordance with the provisions of Section 134 (1) of the Act that an election can be invalidated. And if the petitioner believed that there have been breaches in the conduct of an election, then the breaches would have to be questioned under any or all of the relevant grounds set out in Section 134 (1) of the Electoral Act now Section 138 (1) of the extant law.
The apex Court was also emphatic in the case of OJUKWU V YARADUA (Supra) that Section 145 (1) (b) of the Electoral Act 2006 which is also similar to Section 138 (1) above was clearly restricted to non-compliance with the Electoral Act, and not the 1999 Constitution and by addition of non-compliance with the 1999 Constitution,

a different language was used from Section 145 (1) (b) thereof. Thus, a party has no legal right to expand the language or wording of a statute as same is the exclusive function of the legislature.
In the instant case, the innovations introduced by the appellants in couching Ground B of the petition was clearly outside the ambit of Section 138 (1) (b) of the Electoral Act 2010 (as amended) and thereby destroy the case of the appellants as the Courts expect them to follow the procedure provided in the Electoral Act. The appellants have themselves to blame for not sticking to the letters of Section 138 (1) of the Act. This issue is as well resolved against the appellants.

In the result, I therefore, enter an order dismissing the appeal and affirming the judgment of the lower Tribunal. There shall be cost of N50,000.00 to 1st and 2nd respondents only against the appellants.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my brother, M.L. SHUAIBU, JCA. My Lord painstakingly considered all issues

resolved for determination. I have nothing more to add. I agree with the dismissal of the appeal and abide by the orders made therein.

Appearances:

Reuben Egwuaba, Esq.For Appellant(s)

Solomon Umoh, SAN with him, Santos Enejiah and Joseph James for 1st Respondent.
G. A. Umoh with him, O. B. Akpan, Anietie Bassey, Linus Utuk for 2nd Respondent.
Mustapha I. Abubakar with him, Raphael Etim & Oliver Ogang for 3rd RespondentFor Respondent(s)

Appearances

Reuben Egwuaba, Esq.For Appellant

AND