Dr. John Olukayode Fayemi V. Olusegun Adebayo Oni & Anor (2009)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

The Independent National Electoral commission (INEC) conducted the Gubernatorial Elections across the country on the 14th day of April, 2007. In Ekiti State, Dr. John Olukayode Fayemi, Mr. Olusegun Adebayo Oni and Eleven others contested the election on the platforms of their respective political parties. Whereas Dr. Fayemi was sponsored by the Action Congress, Mr. Oni contested the election on the ticket of the Peoples Democratic Party. At the end of polls, Mr. Olusegun Adebayo Oni having scored 177,780 votes was returned the winner of the election. Dr. John Olukayode Fayemi who polled

108,305 votes came second. Being dissatisfied with the declared results of the election and return of Mr. Oni, Mr. Fayemi filed a 159 paragraph petition at the Ekiti State National Assembly Governorship and Legislative Houses Election Petition Tribunal on 11th May, 2007 on the grounds specified in paragraph 37 of the petition thus:

“(i) The 1st Respondent was not duly elected by a majority of the lawful votes cast at the election.

(ii) The election and return of the 1st Respondent is invalid by reasons of Electoral malpractices and noncompliance with the provisions of the Electoral Act 2006.” (underlining supplied for emphasis).

Details of the electoral malpractices and non-compliance as well as the Local Government Areas where same took place are as catalogued in the body of the petition at the end of which the Petitioner in paragraph 159 urged the Tribunal as follows:

“i. That it may be determined and thus declared that the 1st Respondent Olusegun Adebayo Oni was not duly elected or returned by the majority of lawful votes cast at the Ekiti State Governorship election held on Saturday 14th April, 2007.

ii. That it may be determined and thus declared that the said election and the return of the 1st Respondent, Olusegun Adebayo Oni are voided by acts which clearly violate and breached the provision of the Electoral Act, 2006, including but not limited to rigging and manipulations of election results, unprecedented act of violence, thuggery and abduction and coercion of opponents committed at the Local Governments, towns, wards and polling stations aforementioned.

iii. That it may be determined that going by the lawful votes at the said election, your Petitioner ought to have been returned and should be returned as the elected governor of Ekiti State.

iv. In addition and/or alternative that your petitioner be declared as the winner of the said election judging by the result obtained after the physical recount and re-examination by and before the Tribunal of votes from the affected or aforementioned Local Governments, wards, units and/or centres.

In further alternatives to iii and iv supra:

v. That the elections in the said Local Governments, wards, units and/or centres be voided and/or set aside and a fresh election ordered.

VI. That a fresh election be ordered throughout the State for the election of the Governor of Ekiti

State in accordance with the provisions of the Electoral Act, 2006.

vii. Pursuant to v and vi supra, an order restraining 15th, 6th and 17th Respondents either by themselves, officers, agents or through any person or persons howsoever from interfering and meddling in any fresh election to be ordered or in any way whatsoever from harassing, intimidating, threatening or scaring away voters through the use of force, guns, arms and ammunitions or partaking in the process of multiple voting ballot box stuffing or any other form or shade of electoral malpractice.

viii. AN ORDER commanding the 15th, 16th and 17th Respondents either by themselves, officers, area commanders, divisional officers, agents or through any person or person howsoever to keep strictly to constitutional and statutory function and jurisdiction during the rescheduled election.”

The two sets of Respondents, the 1st Respondent and the 2nd – 16th Respondents, filed their replies to the petition on 15/6/07 and 28/6/07 with pleadings concluded with the Petitioner’s replies to the replies of the Respondents. The Petitioner called a total of 77 witnesses including 4 voters, nineteen polling agents and ten electoral officers to establish his petition. The 1st Respondent testified along with fifty two others against the petition. The 2nd – 16th Respondents called seven witnesses. Various documentary evidence were admitted in evidence in the course of trial. At the conclusion of trial, counsel adopted written addresses of parties.

In its well considered judgment of 28/8/08, the tribunal inter-alia found that:

1. That the petitioner did not prove the allegations of commission of crime in the petition beyond reasonable doubt as required by law.

2. That allegations of crime were not linked to the 1st Respondent by the Petitioner.

3. That though the allegation of non compliance with the provisions of Electoral Act and the manual was proved especially regarding accreditation and related matters, the Petitioner did not show that the non-compliance had substantially affected the result of the election.

4. The Tribunal found that votes recorded for the Petitioner and the 1st Respondent in six of the Local Governments were inflated and therefore deducted votes from their respective scores in the affected Local Governments, based on results of physical counting done.

5. The Tribunal was unable to determine whether 31,638 ballots with multiple votes came from the voters of all the parties or not.

6. That the reports of PW32 and PW77 (expert witnesses) were of no assistance to the Tribunal.

7. That the evidence of the expert witnesses called on all the sides could not be relied upon.

The Tribunal concluded that the Petitioner had failed to prove his petition and consequently dismissed same.

Dissatisfied with the tribunal’s judgment, the Petitioner, Dr. John Olukayode Fayemi, has appealed to this court vide his Notice containing 28 grounds dated 15/9/08 and filed on 16/9/08. The two sets of Respondents have equally cross appealed against the judgment by their respective notices filed on 16/9/08 and 17/9/08 of three and one ground(s).

The Appellant has distilled five issues the consideration of which he considers will determine the appeal as follows:

“1. Whether the Tribunal was not wrong in holding that all the named persons that perpetrated electoral malpractices at the election, were not shown by the evidence before it to be agents of the 1st Respondent, when it was uncontroverted that he was sponsored by the PDP and the named persons were also members of the same party, and whether it was necessary to have joined PDP in the circumstances of the case to make the 1st Respondent liable for the acts of the members of his party that sponsored him for the election.

2. Whether the Tribunal was not wrong in holding that the Appellant did not prove the petition beyond reasonable doubt when there are copious and sufficient oral and documentary evidence before the Tribunal which neither challenged nor controverted sufficiently or at all and when all the allegations in the petitions did not bother on commission of crime and the standard of proof is on the preponderance of evidence.

3. Whether the Tribunal was not wrong when it took unnecessary and extraneous matters into consideration and jettisoned the expert evidence of the appellant’s witnesses on the premise that are not cognizable under the law on the admissibility of expert evidence which were not impugned by any other evidence or reports before the Tribunal.

4. Whether the trial Tribunal was not wrong by holding that the appellant did not prove non-compliance and show how it affected the result of the election when the Tribunal itself agreed that the evidence of non compliance was established especially the total failure of accreditation of voters in the various polling units of the areas contested and glaring non compliance with the provisions of Chapter III of the Manual for Election 2007.

5. Whether the trial Tribunal was not totally wrong in embarking on the deduction of the votes of the appellant when there was no cross petition or prayer to that effect and when in doing so it totally misconstrued in the case of the appellant by treating invalid votes in a ward for that of a Local Government and vice versa and also going outside of the pleadings in the process,”

The six issues distilled in the 1st Respondent’s amended brief read:

“1) Whether there was any link or sufficient link between the 1st Respondent and the alleged perpetrators of alleged criminal acts to justify the nullification of the election of the 1st Respondent and whether mere ipse dixit of the Appellant’s witnesses as to membership of same political party of the alleged perpetrators with the 1st Respondent would constitute such link (Grounds 2, 3, 7, 17 & 18). .

2) Whether the trial Tribunal was not right in holding that the Appellant failed to prove and establish the various allegations of crime in the disputed Local Government Areas beyond reasonable doubt and whether other allegations were proved at all (Grounds 1, 8, 9 & 15).

3) Whether the Tribunal correctly evaluated the testimonies of witnesses to the parties and other evidence (Grounds 4, 5, 6, 10, 16, 21, 22 & 28).

4) Whether the trial Tribunal was not right in holding that the appellant did not prove infraction of the result of the entire election by alleged non-compliance with electoral guidelines (Grounds 11, 12, 13, 14, 19, 20 & 27).

5) Whether the trial Tribunal was not right in the way and manner it disregarded in totality all the expert testimonies by pw17, pw32 and pw77 considering the peculiar circumstances of this case (Grounds 23 & 24).

6) Whether the appellant can be heard to complain about the deduction of votes made by the tribunal having regard to his reliefs and specific application made by his counsel to the tribunal (Grounds 25 & 26).”

On their part, the 2nd – 16th Respondents have formulated four issues for the determination of the appeal thus:-

“1. Whether the tribunal was right in holding that the Petitioner (Appellant) did not prove beyond reasonable doubt the criminal allegations pleaded by the Petitioner in his petition.

2. Whether the Tribunal was right in holding that the Petitioner did not prove non-compliance with the relevant provisions of the electoral Act, 2006 and the manual for Electoral officers, 2007 in the conduct of the Governorship election in Ekiti State and how it affected the result of the election.

3. Whether the Tribunal was right in holding that those who allegedly perpetrated or committed some electoral malpractices, of any, during the Governorship election in Ekiti State on 14/4/07 were not the agents of the 1st Respondent.

4. Whether the Tribunal was right in holding that the evidence of all the expert witnesses called at the trial of the petition lack evidential value.”

Appellant’s issues shall be considered in the determination of the appeal.

ISSUE NO.1

It is argued under his 1st issue that the appellant had pleaded and led evidence showing that 1st Respondent was PDP’s candidate in the election and was wrongly returned by the 2nd and 3rd Respondents.

Evidence had been led establishing that the perpetrators of the sundry Electoral malpractices were not only members of the PDP but stalwarts of the party. The thugs were dressed in 1st Respondent’s branded T. shirts and facing caps. They were further shown to be members of 1st Respondent’s campaign team and had fully campaigned for him. Implicit in all these facts is that the thugs had 1st Respondent’s authority to commit the various malpractices leading to 1st Respondent’s illegal victory in the election.

Secondly, the tribunal, argued learned senior Appellant’s counsel, had wrongly applied the principle in UZOR V. KALU (2006) 8 NWLR (pt.981) 66, WALI V. BAFARAWA (2004) 161NWLR (Pt. 898), OPIA V. IBRU (1992) 3 NWLR (Pt. 231) 658 at 694 as well as BUHARI V. OBASANJO (2005) All FWLR (Pt. 273) 1, all of which drew from OYEGUN V. IGBINEDION (1992) 2 NWLR (Pt. 226) 34 rather than those the tribunal relied upon should have governed the facts of the instant case. Learned senior counsel cited the decision of this court in KUMAILA V. SHERIFF (2008) All FWLR(Pt. 431) 1032 and submitted that it entitles us to depart from the Supreme Court’s decision in OYEGUN V. IGBINEDION (supra) and all other decisions that emanated from it.

Thirdly, argued learned senior counsel to the Appellant, the tribunal’s finding that Appellant’s failure to join PDP was fatal to his fortunes is incorrect It was sufficient that Appellant had linked the perpetrators of the electoral offences not 6nly with the PDP but by extension with the 1st Respondent as well. Joining the PDP to the petition was not only unnecessary but impossible under the Electoral Act, 2006. . It is for this reason, contended senior counsel that the Supreme Court in the recent case of AMAECHI V. INEC (2008) All FWLR (Pt. 407) 1, de-emphasized the agency link in Electoral matters between the person whose return is sought nullified, and those whose conduct is made the basis of the relief. Citing the case of OBASANJO V. BUHARI (2003) 17 NWLR (Pt. 510) 560 – 572 learned Appellant’s senior counsel commended the approach to us.

Replying, learned senior counsel to both sets of Respondents submitted that EKECHI VS. OKAH (supra) which learned senior counsel to the Appellant sought to rely upon as authority for a departure from the decisions in OYEGUN V. IGBINEDION (supra) does not avail the Appellant. In spite of the decision in EKECHI V. OKAH, 1st Respondent’s return, challenged on the basis of electoral offences in the conduct of the election, succeeds only if Appellant as Petitioner proves that the electoral offences were committed by the 1st Respondent himself or such others whom he authorized to commit the offences. Under the Electoral Act 2006, agency relationship between the winner of the election and the perpetrators of the electoral offences on which basis nullification of the return of the elected person is sought still persists. Learned senior counsel contended that the decisions in KALU V. UZOR (supra), WALI V. BAFARAWA (supra) BUHARI V. OBASANJO (supra), OYEGUN V. IGBINEDION remain binding having drawn from legislations similar to the one under consideration. This court cannot, argued learned senior counsel to the Respondents, where the Supreme Court had interpreted a legislation similar to the one under reference prefer and rely on its own decision on the same matter that stands in contradiction to the Supreme Court’s position. The bottom line, it was submitted, is that only the decisions of the Supreme Court and such decisions of the Court of Appeal in conformity with the apex court’s position on a given issue bind this court as well as subordinate courts in their subsequent decisions on the same issue. In his pleadings and evidence thereto, Appellant’s case remains that PDP thugs had disrupted the election, hijacked electoral materials including boxes which they stuffed with unearned ballot papers in virtually all the polling units constituting the Local Government Areas with disputed results.

Learned senior counsel further submitted that Appellant’s evidence in proof of his pleadings was that the perpetrators of the offences were PDP members and none of whom were shown to be 1st Respondent’s agents. Relying on s.80 of the Electoral Act, OBASANJO V. BUHARI (supra) and GREEN V. GREEN (1987) 3 NWLR (Pt.61) 480, learned senior counsel supported the tribunals finding that Appellant’s failure to join the PDP which was a necessary party to the petition was fatal to Appellant’s case. Both counsel urged us to resolve Appellant’s 1st issue against him.

I agree with learned senior counsel for both sets of Respondents that learned Appellant’s senior counsel cannot be right.

Firstly, sections 131 and 136-138 of the Electoral Act 2006 which create the Electoral offences on the basis of which Appellant seeks the nullification of the 1st Respondent’s return make such relief available only to a Petitioner who proves the commission of the offences by the person whose election is sought nullified or by such other persons authorized by him.

Similar sections have been interpreted by this court as well as the Supreme Court and the tribunal’s resort to the decisions of the two courts in its determination of Appellant’s petition that has the commission of electoral offences as its basis cannot be faulted. That is what the doctrine of stare decisis is all about. The tribunal would have been impertinent to refuse to be bound by the earlier authoritative pronouncements of superior courts on same or similar issues as the tribunal was asked to subsequently determine. See OLU OF WARRI V. KPAREGBAYI (1994) 4 NWLR (pt. 339) 414, OSAGIE II V. OFFOR (1998) 3 NWLR(pt. 541) 205, and DALHATU V. TURAKI (2003) 15 NWLR(pt. 843) 310 and 350. In N.A.B LTD. V. BARRI ENGINEERING NIG. LTD. (1995) 8 NWLR (pt. 413) 247 at 289 -290 the Supreme Court restated the principle of judicial precedent thus:

“The doctrine of judicial precedent (otherwise called stare decisis) requires all subordinate courts to follow the decisions of superior courts.

………..This is the foundation on which the consistency of our judicial decisions is based.”

In the instant case, the tribunal having found from the pleadings of the Appellant that the petition was founded on the commission of electoral offences demanded, as decided by this court in KALU VS. UZOR (supra) and WALI V. BAFARAWA (supra) and the Supreme Court in OYEGUN VS. IGBINEDION supra and BUHARI VS. OBASANJO (supra), proof of: (i) the commission of the alleged Electoral offences beyond reasonable doubt. (ii) that the alleged offences were committed personally by the 1st Respondent or that 1st Respondent aided or abetted the commission of the offences; (iii) that persons other than the 1st Respondents who perpetrated the electoral offences were 1st Respondent’s agents or had been authorized by him. (iv) that the electoral offences are not only substantial but had further substantially affected the outcome of the election. The tribunal after reviewing the evidence of parties, applied these yardsticks and found that the Appellant had neither established that 1st Respondent personally committed the offences nor that the persons named by the Appellant as having committed the offences were authorized by the 1st Respondent, or had committed the offences with his knowledge or consent and consequently dismissed the petition. This decision of the tribunal that drew from the decisions of the Supreme Court and this court in respect of similar facts and issues the tribunal contended with is beyond reproach. See RECKITT &. COLMAN LTD. VS. GONGONI (2001) 8 NWLR (pt.716) 592 and GLOBAL TRANS S. A. VS. FREE ENTRERPRISES (NIG.) LTD. (2001) 5 NWLR (pt. 706) 426.

Again, I am not persuaded by the submission of learned senior Appellant’s counsel that we should depart from all the decisions of this court and the Supreme Court the tribunal relied upon in reaching its decision and prefer the decision of this court in EKECHI VS. OKAH (supra) instead. That would be judicial impertinence. Beside, EKECHI VS. OKAH (supra) is not a departure from those of our decisions and the Supreme Court’s which hold that the reliefs for the nullification of an election on the basis of electoral malpractices should only be acceded to if the Respondent is established to have personally committed the offences or authorized the commission of same by his agents.

Senior Appellant’s counsel further contended that Appellant’s petition should have succeeded on the basis of the evidence that the perpetrators of the offences were PDP’s members, stalwarts and agents. He relied on AMAECHI VS. INEC supra. This authority, I am afraid, does not avail the Appellant, the decision in AMAECHI’s case was on the legality or otherwise of the substitution by a political party of the person who had won the party’s primaries for the governorship election. It is not a determination of an election petition that had the commission of electoral offences as its foundation. AMAECHI’s case being a determination on totally different facts and issues as those in the instant case, is inapplicable to our circumstances. The legislations the interpretation of which gave birth to EKECHI VS. OKAH (supra) made similar provisions as those in and the Electoral Act 2006 has not departed from these requirements. The law remains in spite of the decision in EKECHI VS. OKAH (supra) that alleged malpractices are established only if committed by the person whose return is sought nullified or by his authorized agents.

It should be mentioned also that the tribunal’s dismissal of Appellant’s petition for the added reason of non-joinder of the PDP has adjectival as well as constitutional backing. A perusal of the pleadings in support of the petition clearly reveals that Appellant’s allegation therein was consistently in respect of malpractices occasioned by 1st Respondent’s agents and for his benefit. The perpetration of the offences were not ascribed to PDP’s agents. It was only in the evidence led by the Appellant that the commission of the Electoral offences was stated to have been occasioned by PDP’s agents. No evidence was led to sustain the pleadings in the petition about 1st Respondent and his agents being the perpetrators of the sundry malpractices. The principle here is firstly that unproved pleadings are deemed abandoned. Secondly any evidence which is at variance with one’s pleadings goes to no issue.

Lastly, on the issue of non-joinder of the PDP, it is incorrect to say that 5.144(2) is exhaustive and has foreclosed the joinder of parties other than those specified thereunder even where the parties are necessary for the effectual determination of the election petition. In the instant case the effect of the non-joinder of the PDP against whose agents evidence of misconduct had been led, proof of the misconduct would not be entertained by the court in the absence of a joinder. See OMOBORIOWO VS. AJASIN (1984) NSSC (Vol. 5) 81. In entrenching this doctrine of audi alteram partem, the 1999 Constitution in Section 36 has provided as follows:

“S.36 – (1) In the determination of his civil rights and obligations including any question or determination by or against any government or authority a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its and impartiality.”

The PDP by Section 80 of the Electoral Act 2006 is a registered Political Party and a body corporate with perpetual. succession and a common seal. The party is empowered to sue and may be sued in its corporate name. Interpreting a provision similar to 5.80 of the Electoral Act 2006, Edozie JSC in OBASANJO VS. BUHARI (2003) 17 NWLR (pt.850) 510 at 585 contributed as follows:-

“With due respect to the learned senior counsel for the Appellant, there is nothing in the above passage to suggest that the court below decided that a candidate and a political party can be deemed to be one and the same person. They are mutually exclusive entities. One is natural person, the other an artificial person.”

Learned Appellant’s senior counsel has submitted that the tribunal had erred when it failed to find 1st Respondent liable for the Electoral offences of PDP’s agents as the fortunes of the two are bound together.

It did not matter, learned senior Appellant’s counsel contended, that PDP was not a party to the petition, The tribunal held differently and rightly too that since PDP had not been joined, the court cannot determine any case against it in its absence, In BUHARI VS. OBASANJO (supra) the Supreme Court held at page 578 of the law report thus:

“The court cannot pursuant to the audi alteram partem rule enter judgment against person who will be affected directly by its decision if such a person is not a party to the action and he had no opportunity of defending the action. See PERMANENT SECRETARY, MINISTRY OF WORKS KWARA STATE VS. BALOGUN (1975) 5 SC 57 at 59.”

The foregoing certainly vindicates the tribunal’s decision refusing the Appellant reliefs against a party that was not before it. For all these reasons, Appellant’s first issue is resolved against him.

ISSUE NO.2

Appellant’s quarrel with the tribunal’s judgment under his 2nd issue pertains the tribunal’s findings at page 4279 – 80 of the record thus:-

“In all these Local Government Areas, allegations of violence, thuggery ballot snatching, ballot stuffing, multiple thumbprint, falsification and allocation of votes merely made by the Petitioner against the Respondents.

As we stated earlier in this judgment, these allegation are all criminal in nature which should be proved beyond reasonable doubt”

(Underlining supplied for emphasis)

It was argued that the tribunal had in the foregoing wrongly stated the standard of proof the Appellant had to discharge in the petition which was a civil matter. Not surprisingly, the Respondents have stoutly disagreed with the Appellant insisting, and again rightly too, that the tribunal’s statement of the law on the standard of proof in respect of Appellant’s allegations anchored on electoral offences or malpractices is authoritative. One cannot agree more with the Respondents.

The tribunal’s postulation on the issue draws from the requirement which S. 138(1) & (2) of the Evidence Act places on a petitioner, such as the appellant in the instant case, who makes allegations of crime the basis of his petition. The Petitioner has the strict burden of proving the allegations beyond reasonable doubt. In NWOBODO VS. ONOH (1984) 1 SCNLR 1, a decision alluded to by learned senior counsel to the Respondents and relied upon by the tribunal, the Supreme Court per Bello JSC(as he then was and now of blessed memory), explained the scope of S.137 (1) the present S.138(1) of the Evidence Act in these words:-

“The scope of Section 137 of the Evidence Act may by summarized: where in an election petition

the Petitioner makes the commission of the crime as the basis of his petition, the subsection imposes strict burden on the Petitioner to prove the crime beyond reasonable doubt. If the Petitioner fails to discharge the burden, his petition fails. However the provision of S.137 (1) are subject to the principle of severance of pleadings which may be stated thus: If in any civil proceedings the averments alleging crime are severable and if after such severance those still remain in the pleadings of the Plaintiff or the Petitioner in sufficient averments devoid of the criminal…..against any party to the proceeding and on which the plaintiff or the petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case on the balance of probability.”

The foregoing was restated in BUHARI VS. OBASANJO (2005) 13 NWLR (Pt. 941) 1 at 295. See also FOLAMI VS. COLE (1990) 21 NSCC (Pt. 1) 27 at 32, OWOADE VS. SEKONI (1998) 9 NWLR (Pt. 565) 261, OGBU VS. NNAJI (1999) 4 NWLR (Pt. 597) 87 and ONOH VS. OKEY

(1999) 5 NWLR (Pt. 602) 240. Again in the conclusion that evolved from its reliance on the foregoing authorities, the tribunal cannot be questioned by the Appellant.

Beyond these preliminary salvos however is learned senior Appellant’s counsel’s contention that the Appellant had indeed discharged the burden of proof in respect of those allegations which bordered on crimes in his petition but that the tribunal had failed to correctly evaluate the evidence led by parties and find for the Appellant. learned senior counsel while conceding that the primary duty of evaluating evidence and ascribing probative value belongs to the tribunal, he forcefully submitted that where the tribunal failed or wrongly evaluated the evidence of parties and drew wrong inferences that led to perverse decisions, the appellate court has the power and indeed the duty of interfering to correctly evaluate the evidence. Learned senior counsel cited and relied on 5.16 of the Court of Appeal Act, Order 1 Rule 20 (5) of the Court of Appeal Rules. GBOKO VS. STATE (2007) 17 NWLR (Pt. 1063) 272 at 305, BASIL VS. FAJEBE (2001) 4 SCNJ257 at 268, IWUOHA VS. NIPOST LTD. (2003) 8 NWLR (Pt. 82) 308 at 344 and KWAJAFFA VS. BON LTD. (1999) 1 NWLR (Pt. 587) 423 among other cases.

It was submitted that in proof of the allegations of crime pleaded in his petition Appellant had led credible and compelling evidence through 77 witnesses among whom were electoral officers, 4th – 10th and 12th – 14th Respondents. The electoral officers, tendered forms EC8A, EC8B, EC8Cand voters registers in respect of the Local Government Areas with disputed results. By the testimonies of his witnesses the appellant had also shown who the perpetrators of the sundry electoral malpractices were. The evidence as led was neither challenged nor controverted.

Indeed, learned senior counsel contended, the tribunal had found that the Respondents had failed to call the perpetrators of the electoral malpractices in rebuttal of the evidence against them. The finding notwithstanding, the tribunal failed to correctly infer that Appellant had proved his allegation beyond reasonable doubt. Furthermore, the electoral forms and voters registers in respect of the disputed Local Government Areas which spoke for themselves manifested many. anomalies and irregularities. These include:-

(i) The forms are replete with alterations, mutilations, superimposition of figures and some painted without initial.

(ii) The ballot accounting is in most cases not balance, the unused ballot papers if added to the spoil and rejected ballots plus the total valid vote cast for the parties will not equal to the ballot papers issued to the polling units.

(iii) Similar handwriting and character of one person usually run through the forms EC8A.

(iv) The same character of handwriting and signature appear at the column for the Presiding officers and the agents of the political parties.

(v) More often than not, the names of the polling agents are not contained on the form.

(vi) In most of the forms only PDP party agents purportedly signed the forms and usually anonymous as their names are not contained on the column for names and signatures of the parties agents.

(vii) The counting of ballot papers ordered by the Honourable Tribunal in most of the cases reveal what was found in the box did not tally with the total valid votes credited to all parties.

(viii) Accreditation or ticking on the voters registers is mostly irregular. If not done in black, it was done in red; it was done in blue for the two elections. It was in some instance done in blue inks and black single ticking.

(ix) Where blue colour ink was used for accreditation about 80% of the accreditation did not correspond with the total number of voters cast at the election.

(x) The results recorded in forms EC8Aconflict with those in forms EC8B.

The tribunal failed to properly scrutinize the various forms and draw the correct inferences from the anomalies and irregularities that are self evident on the forms as recounted. Learned senior counsel urged us to scrutinize the various forms and make the only inference from the non rebuttal of the oral and documentary evidence place before the tribunal.

That inference, learned senior counsel submitted, is that appellant had proved his allegations beyond reasonable doubt. He relied on AYOGU VS. NNAMANI (2006) 8 NWLR (pt. 981) 160, ONOH VS. OKEY (1999) 5 NWLR (pt. 602) 240 at 48 and MILLER VS. PENSIONS (1947) All ER 372. He further relied on TERAB VS. LAWAN (1992) 3 NWLR (pt. 331) 569, KINGIBE VS. MAINA (2004) FWLR (pt. 191) 1555, NWEKE VS. JIMS (1999) 11 NWLR (pt. 625) 39 at 52 and CHUKWUMA VS. ANYAKORA (2006) All FWLR (pt. 302) 121 at 123. The tribunal, conceded learned senior counsel, following physical counting of ballot papers in affected polling units found that some votes had been unlawfully earned by the 1st Respondent. He however contended that results in these affected units should have been nullified instead of the deductions of the illegal votes effected by the tribunal which left the PDP with 65,473 instead of 108, 305 votes.

Learned leading counsel for the Appellant then went through the Local governments complained about starting from Oye Local Government which consists of two wards i.e. Ire I and II the results of which were cancelled for electoral malpractices. Also the result of 8 wards consisting of 19 units in Oye Town I and 17 units in Oye Town II on account of violence, ballot snatching, ballot stuffing and allocation of votes by the agents of 1st Respondent in collusion with the 2nd – 17th Respondents.

Appellant submitted that the total votes allocated to PDP in just two wards was 15, 527 which is far more than the total vote cast in eight wards, where AC was declared winner and prayed for the cancellation of election in the two wards of Oye town and that 15, 527 and the 772 accredited to AC be deducted from the total votes recorded for the parties in form EC8Cexhibits PW4E.

The Appellant also relied in relation to Oye Local Government on exhibit PW4L- report of the Electoral Officer, Mr. Tekeme Oburume and exhibits B1, B2, B3 and B4 which are Newspaper Report on the election.

The Petitioner/Appellant also challenged the entire result from Ise-Orun Local Government consisting of 10 wards and 105 units. The Appellant claimed in particular that there is no correlation between the Forms EC8Band EC8Cin this Local Government. That forms EC8Ain 5 wards in Oraye ward was not produced. And that as it was the case with Oye Local Government forms EC8D, EC25 and EC40C were not produced.

In Ido-Osi Local Government, the Appellant challenged the election or result of 139 polling units in 11 wards of the Local Government. The Appellant’s case for Ido-Osi Local Government is that no election or actual voting took place due to harassment, intimidation, thuggery and violence perpetrated by agents of the 1st Respondent as in the case of the two previous Local Governments, the Appellant said that form EC40Cwas also produced for this Local Government.

In Irepodun/Ifelodun Local Government the Petitioner/Appellant challenged the election or results of 8 wards. In Igede Township where there are 3 wards, multiple thumb printing, random and arbitrary accreditation of voters on the register were said to be carried out within such voters did not cast their votes. The Petitioner also alleged that election could not take place in 6 wards at Ifelodun axis viz, Iworoko, Igbemo, Iropora/Esure/Eyio and Are wards owing to the activities of thugs that invaded the polling units. The Appellant reviewed the evidence of PW42- PW49 as against those of OW9 and pointed out irregularities in relation to form EC8Ain the various wards.

The Appellant’s case in relation to Ikole Local Government is that the election or voting in 9 out of the 12 wards in the Local Government were marred by various electoral malpractices perpetrated by the 2nd – 12th Respondents. The Appellant reviewed the evidence of PW16, PW13 as against that of OW32 – OW4Sand pointed out discrepancies in the forms EC8Atendered for this Local Government.

The Appellant challenged the result of election in the eleven (11) wards of Ijera Local Government for reasons of violence and rigging. That no election took place in the two wards in Ipoti Town, Iloro Ward B, Ekameta ward, Odo Owa ward I and II owing to the activities of thugs and that entries in form EC8A’s used in respect of Ilora ward ‘A’ are contradicting to the entries in INEC form EC8B. The Appellant contrasted the evidence of PW63 – PW77 as against that of DW47 – DW57 for this Local Government.

In respect of Gboyin Local Government, the appellant averred that no election took place in Ijan, Egbe-Ira and Imesi wards of the Local Government as election materials for the wards hijacked and massively thumb printed by agents of the 1st Respondent’s party with the assistance of the 2nd- 3rd and 1ih Respondents.

The Appellant reviewed the evidence of PW33 – PW14 as against that of DW11- DW15.

In Ilejemeje Local Government, the Appellant relied on the evidence of PW17and the report attached to his written statement, exhibit PW17A to say that if the multiple votes of 902 as admitted is deducted from PDP votes, the total number of PDP votes would be 2,503 and not 3,405. The complaint of the Petitioner/Appellant in Ekiti South West Local Government is that the election in ward II was marred by rigging and other electoral malpractices. The Appellant prays for cancellation of election in this ward.

The case of the Appellant in Ekiti West Local Government is that election only held in seven (7) wards while in the remaining four (4) wards i.e. three (3) wards in Okemesi town and Ipole, Ilaro, election was marred by violence unleashed by the 1st Respondent. Appellant stated that while the election in the three (3) wards of Okemesi town was nullified, that of ward 7 (Ipole Ilora) was not. The Appellant reviewed the evidence of PW52 – PW 54 as against that of DW1 for this Local Government.

The Petitioner challenged the result of 8 out of 12 wards in Ekiti East Local government for reasons of multiple voting, ballot boxes snatching, stuffing and deliberate manipulation of results of INEC. In particular, Appellant submitted in relation to this Local Government that the result of physical counting of ballot papers which revealed serious disparity between the result of the counting of ballot papers in the ballot box and the one credited to the form EC8A, is sufficient to nullify the entire result in the 8 wards challenged.

In their reply to arguments under Appellant’s issue NO.2, Respondents emphasis is that all the allegations of the appellant in his petition were criminal allegations, which must be proved beyond reasonable doubt.

Starting from Oye ward 1 and Oye ward 2, Respondents’ counsel referred to paragraph 60 – 66 of the Petitioner’s/Appellant’s petition and argued that with those paragraphs, the Appellant only gave a scenario of violence and other criminal offences committed by the 1st Respondent.

The Respondents pointed out lacunae in the evidence of witnesses called by the Appellant for Oye Local Government and said generally that none of the witnesses called by the Petitioner in respect of Oye ward 1 and Oye ward 2 was a party agent of the Petitioner from any of the 35 polling units in the wards.

Counsel for the Respondents submitted that the evidence of PW4- Austin Orogho, the Electoral Officer for Oye Local Government dealt a devastating blow on the Petitioner’s/Appellant’s case for that Local Government as he witnessed at cross-examination at pages 3108 – 3109 that the election in Oye 1 and 2 was devoid of any electoral malpractices on 14th April, 2007. For Ido-Osi Local Government which has 11 wards and 139 polling units, the Respondent reviewed the pleadings of the Appellant as contained in paragraphs 40 and 42 of the petition and submitted that the gravamen of the Petitioner’s/Appellant’s pleadings for Ido-Osi Local Government is that the results from all the 139 polling units in the 11 wards were manufactured, configured or conjured in favour of and to the advantage of the 1st Respondent. Respondents’ counsel submitted that no evidence of witness statement on oath was given in respect of:

i. Ifaki ward 3 with 8 polling units

ii. Ifaki 2 – ward 4 with 10 polling units

iii. Ilogbo ward 5 with 17 polling units

iv. Ayeto II – ward 11 with 10 polling units

which means that the Appellant did not depose to witness statement on oath in respect of about 46 polling units in Ido-Osi Local Government Area.

Respondents counsel compared and contrasted the evidence of the witnesses called by the Appellant and those of the Respondents for Ido- Osi Local Government and pointed out more particularly through the evidence of PW5 – Taiwo Gbadegesin, the electoral officer for Ido-Osi Local Government that the votes in forms EC8As, EC8Bs and EC8Cs in Ido-Osi were never falsified in favour of any candidate and that the votes cast in favour of the respective parties and their candidates were valid votes. On this, Respondents relied on the cases of ONMEJE VS. OTOKPA (1999) 4 NWLR (Pt. 600) 518 at 525-526, ALHAJI WAZIRI IBRAHIM VS. ALHAJI SHEHU SHAGARI (1983) 9 SC59 at 64-65, and AJUDUA VS. NWOGU (NO.2) (2004) 16 NWLR(Pt. 898) 79 at 88-89 to say that the Petitioner/Appellant and his witnesses have woefully failed to prove beyond reasonable doubt the allegations of electoral malpractices and irregularities in Ido-Osi Local Government Area of Ekiti State.

Learned counsel to the Respondents reviewed the allegations in paragraph 1, 47, 57 and 59 of the Petitioner’s/Appellant’s pleadings in relation to the 12 wards in Ikole Local Government, and noted that the Petitioner/Appellant failed to file witness depositions for wards 3, 6, 9, 11 and 12 consisting of 55 polling units for the Local Government. Respondents’ counsel pointed out contradictions in the evidence of appellant’s witnesses for this Local Government, noted that many of the witnesses were not party agents but monitoring agents that are not recognized by law and again held on to the admission by PW16, the Electoral Officer for Ikole Local Government especially at cross-examination that none of the parties made any complaint to him about the under supply of election materials and that the scores of the parties were not manufactured and falsified by the 2nd, 3rd and 10th Respondents

(that is himself). Respondents’ counsel submitted in this respect that the fact that documentary evidence were tendered by the Petitioner through PW16 does not diminish the burden of proving the criminal allegations of thuggery, snatching and stuffing of ballot boxes and concoction of votes contained in paragraphs 47-59 of the Petitioner’s/Appellant’s pleadings and relying on the case of EDED VS. Eya (1999) 6 NWLR (Pt. 605) 18 at 29, the counsel to the Respondents submitted that the lower tribunal was right to have held that the alleged corrupt practices and electoral offences for Ikole Local Government was not proved beyond reasonable doubt.

In Gbonyin Local Government, where election results were challenged in 3 out of the 10 wards. Respondents’ counsel reviewed paragraphs 125 – 132 of the Petitioner’s/Appellant’s pleadings compared and contrasted the evidence of the witnesses and noted the scantiness of witnesses depositions from the Appellant to cover the polling units for this Local Government. Respondents’ counsel juxtaposed the evidence of PW34, PW35, PW36, PW37, PW38, PW39 and PW40 with those of DW1, DW12and DW14.

Respondents’ counsel submitted that all the forms EC8As in this Local Government were duly signed by the agents for the Appellant and same were not controverted. And also that PW41having tendered all the documents used for the election in wards 1, 5 and 10, the Appellant’s complaint for this Local Government fall flat.

In the 9 wards consisting of 160 polling units in Irepodun/Ifelodun Local Government, the counsel to the Respondents also highlighted the content of paragraphs 84 – 94 of the Petitioner’s/Appellant’s pleadings, according to them to show ex-facie that the allegations made by the Petitioner/Appellant were laid at the footsteps of criminality.

Respondents’ counsel reviewed the evidence of the witnesses particularly those of PW43- PW49for this Local Government and observed that none of the Petitioner’s/Appellant’s witnesses for the Local Government was the Petitioner’s party agent in any designated or recognized polling unit in Irepodun/Ifelodun Local Government. The Respondents relying on the cases of YUSUF VS. OBASANJO (2005) 18 NWLR (Pt. 956) 96, ONISAODU VS. ELEWEJU (2006) 13 NWLR(Pt.998) 517 at 532, 001 VS. IYALIA (2004) 8 NWLR (Pt. 876) 283 at 308 and ANIGBODU &. ORS. VS. UCHEJIGBO 10 NWLR (Pt. 775) 472 at 487 as before took advantage of the admission against interest by PW42the Electoral Officer for Irepodun/Ifelodun Local Government that he was present in all the 160 polling units in the Local Government during the election and that the election was peaceful, free and fair. Also, that forms EC8As, EC8Bs and EC8C for the Local Government were all signed by AC agents.

For Ijero Local Government, counsel for the Respondents submitted that the criminal allegations for the Petitioner/Appellant are contained in paragraphs 101 – 124 of the petition at pages 29-34 of the record. Respondents noted that the Appellant did not contest the election in wards 3, 4, 8 and 11 in this Local Government and the voters register for Ijero Local Government was not tendered. Respondents’ counsel reviewed the evidence of PW53, PW54, PW64, PW67 that election in the Local Government was free and fair.

In relation to the 10 wards consisting of 102 polling units in Ise-Orun Local Government, learned counsel for the Respondents observed that the National Democratic Party (NDP) scored the highest lawful votes in the Local Government and that the Appellant failed to join the NDP or her candidate – Oluwon Mathew Ogunbowale who won the majority of the votes in the Local Government. This, apart from the fact that the allegations in paragraphs 95 – 100 of the petition were directed against the 1st Respondent. learned counsel for the Respondents noted that only PW60, PW61 and PW62 made witness deposition for the 11 wards and 100 polling units in Ekiti East Local Government and also that contrary to the deposition of PW62, the electoral officer PW54 said “there is nothing known as Omuo-Oke 04”. Respondents reviewed Appellant’s pleadings in respect of this Local Government as contained in paragraph 2-5 of the petition and submitted that the Petitioner/Appellant having not called witnesses to depose to written statements on oath in respect of:

(i) Omuo Oke 1

(ii) Araromi ward

(iii) Kota I

(iv) Kota II

(v) Obadore I

(vi) Obadore II

(vii) Ilesa II

the averments contained in the petition particularly paragraphs 34, 135, 136, 137, 138 and 139 are all deemed to be abandoned.

On this, Respondents’ counsel relied on the case of BALAMI VS. BWALA (1993) 1 NWLR (pt.267) 51 at 691.

Finally, on this Local Government, counsel to the Respondents held on to the evidence of PW59, the electoral officer for Ekiti East Local Government that apart from unit 4 in ward 6 and unit 2 in ward 9, where election could not hold, the governorship election in wards 1, 3, 4, 5, 6, 9, 10 and 11 in Ekiti East was free and fair and that the results of the election in Ekiti east were not manipulated by himself or the 2nd and 3rd Respondents. Relying on the case of AJUDUA VS. NWOGU (No.2) (2004) 16 NWLR (pt. 899) 79 at 88 – 99. Respondents’ counsel submitted that this court cannot pick and chose between the evidence of PW59and that of PW60, PW61and PW62herein and that the evidence of PW59 has destroyed the evidential edifice of the Petitioner/Appellant for this Local Government.

For Ekiti South Local Government, the counsel to the Respondents referred to paragraphs 81 – 83 of the Appellant’s petition and submitted that the complaint of the Appellant was that of rigging and alleged violence orchestrated by agents and supporters of the 1st Respondent.

The Appellant, said the Respondents only called PW51 – Gloria Olufunke the electoral officer for this Local Government and that no evidence was given by the Appellant in support of paragraphs 81, 82 and 83 of the petition. Respondents’ counsel referred to the case of BALAMI VS. BWALA (supra) and OMOBORIOWO VS. AJASIN (1984) 1 SCNLR 108 to say that those paragraphs are deemed abandoned.

Also, in respect of Ekiti West Local Government, counsel to the Respondents contended that the Appellant has not proved the difference between 6,733 and 7,210 votes that is 377 votes alleged to have been manipulated in favour of the 1st Respondent. The Respondents further submitted that the evidence of DW62 and DW63 corroborated the evidence of the Electoral officer under cross-examination that the election was devoid of violence, thuggery and electoral malpractices. And rely on the case of SKETCH PUBLISHING CO. LTD. VS. AJAGBEMOKEFERI (1989) 1 NWLR (pt.100) 698, AYOOLA VS. YAHAYA (2005) 7 NWLR (pt. 923) 122 at 140 and DAGGASH VS. BULAMA (2004) 14 NWLR (pt.892) 144 at 244 submitted that reliance can be placed on the evidence of the electoral officers under cross-examination by the Respondents.

Lastly, in relation to Ilejemeje Local Government, the Respondents referred to paragraphs 140 – 149 of the Appellant’s petition and said that the Appellant did not call any witness to prove the allegations of criminality. Relying on the cases of BALAMI VS. BWARA (supra) and OMOBORIOWO VS. AJASIN (supra) counsel to the Respondents submitted that since no witness gave evidence in respect of criminal allegations or multiple votes through ballot stuffing in this Local Government, all the paragraphs of the Petitioner’s/Appellant’s petition in respect of Ilejemeje Local Government are deemed abandoned.

The question to answer under Appellant’s 2nd issue is whether indeed the Appellant had proved those allegations which bordered on electoral offences in the manner the law states he should. From his pleadings and as held by the tribunal at page 4278 of the record, these allegations “range from violence, hijack of voting materials, multiple thumb printing, ballot snatching and stuffing of ballot boxes.” Has the Appellant led credible and compelling evidence in proof of all these?

In proof of the petition, 77 witnesses testified for the Petitioner/Appellant. These include PW4, PW5, PW16, PW41, PW42, PW50, PW51, PW52, PW55and PW56, electoral officers for Oye, Ido-Osi, Ikole, ‘Gbonyin, Irepodun/Ifelodun, Ijero, Ekiti South West, Ekiti West, Ise-Orun and Ekiti Local Government Areas. These Electoral officers testified that the election in the disputed areas was peacefully conducted and they did not receive reports that it had been bedeviled by all the malpractices the Appellant alleged took place. Their testimonies contrasts with those of Appellant’s witnesses like PW73who in his testimony before the tribunal said that on the Election Day election materials were missing as a result of connivance of policemen, soldiers and presiding officers who were members of the PDP at the polling units. PW72 and PW75 mentioned Ayo Arise, Chief Ayo Omodera, Ojo Omowaye and Dr. Jimi Oke as PDP members who on behalf of the 1st Respondent conspired with others to disrupt election in a particular unit in Oye Local Government Area and maliciously carted away election materials to unknown destination where they were unlawfully thumb printed in favour of the 1st Respondent. DW16, Omowaye Ayodeji and DW17 – Dr. Jimi Oke all testified on oath exonerating themselves from the allegations levied against them. PW1 one of Appellant’s star witnesses under cross examination at page 3078 of the record stated thus:

“AC had agents at the polling station, his name is Michael Ajibade There are 2 State Assembly Constituencies in Oye Local Government, my party won one ward and PDP won the other….

There were party agents in the unit besides myself and presiding officer when I cast my vote. ADP, ANPP, PDP etc had their agents in the unit. After voting my card was perforated. I now say I did not vote at all. I left the polling unit immediately after I voted. I went to my house. I cannot remember the number of polling units in Oye ward 2.”

Still by way of further example, the Appellant led PW5-PW15, twelve witnesses, to give evidence in respect of 139 polling units. PW5 is an electoral officer who stated that election had held and tendered Forms EC8A, EC8B, EC8C, Ballot papers, and voters registers etc in respect of the units within the Local Government under him. Of the witnesses called by the Appellant in respect of this Local Government none specifically identified the thugs whom they alleged to be PDP stalwarts that disrupted the election. PW7 even stated that his party, Appellant’s party had agents in the various polling units. The testimonies of Appellant’s witnesses bear the same pattern regarding the other disputed Local Government Areas.

DW22, DW28, 1st Respondent’s agents and DW31 a registered voter who voted and indeed DW56 the 1st Respondent himself all controverted the evidence led by the Appellant. It is this quality of evidence recounted in respect of Oye and Ido Osi Local Government Areas that was led by the appellant in respect of other Local Government Areas. In respect of the Local Government Areas where appellant disputed the results of the elections, the electoral officers that testified on appellant’s behalf and who for all intent and purposes constitute the final authority in the conduct of the election in their respective Local Government Areas gave evidence in respect of Appellant’s allegation that bordered on crime thus:

(i) That they personally supervised the conduct of the election

(ii) That the election was peacefully conducted without rancor

(iii) That all the votes in forms EC8A’s”EC8b’sand EC8C were never manipulated, conjured, configured and falsified in favour of any party or candidate.

(iv) The votes cast in favour of the respective parties and their candidates were valid votes.

(v) That there was no element of thuggery, ballot snatching, ballot stuffing by any person during the 14/4/07 election.

With the above quality of evidence coming from appellant’s own witnesses, the invitation by the Respondents asking one to exploit the words of IRIKEFE, JSC (as he then was) in ALHAJI WAZIRI IBRAHIM -VS- ALH. SHEHU SHAGARI (1983) 9 SC59 cannot be refused. In that case the jurist opined thus:

“On strange aspect of this case is that apart from the ipse dixit of the appellant, and this did not amount to much by way of admissible credible evidence, the totality of the evidence relied upon. in proof of the serious allegations carried earlier in this judgment is the testimony of PW2 Gambo

Guibo, the executive secretary of Fedeco and the Chief Federal Electoral Officer of the Federation who is the second Respondent, PW15 – Hon. Justice Victor Ovie-Whiskey, the Chairman of Fedeco and PW16 – Morris Asuquo Nya, the Returning Officer of the Federation who actually declared the 1st Respondent as duly elected in the election the subject of this petition. As would be expected in such a situation, these witnesses as it were helped the petitioner to disprove all the allegations he had sought to rely upon. In other words, the Petitioner with his eyes wide open pulled down brick by brick, the edifice he had erected. The result of this poor strategy was that the Federal High Court had no difficult in arriving at the conclusion, which it did, that this petition had not been proved – and in dismissing it. Thereafter the aggrieved petitioner took his case to the Court of Appeal where he fared no better. ”

(Underlining supplied for emphasis).

The foregoing comments are equally applicable to the facts of the instant case. The appellant must be reminded that it remains the principle that having alleged the commission of electoral offences under Sections 131, 132, 134, 135, 136 etc and made same the basis of the declaratory reliefs he sought he could only have succeeded on the strength of his case and not on the weakness of the Respondents’ case.

It had been forcefully argued that evidence had not been led in rebuttal of the one led by the appellant and that the lapse on the part of the Respondents entitled the appellant to a favourable verdict. The truth remain that appellant did not lead as much evidence as to even suggest a prima facie case that 1st Respondent had by himself or through his authorized agents committed those acts on the basis of which his election was sought nullified. Besides, appellant cannot stop the Respondent from exploiting the weakness of the case he built around the testimonies of particularly the electoral officers who testified contrary to his case. In OMISADU -VS- ELEWEJU (2006) 13 NWLR (Pt. 998) 517 at 532, the Supreme Court per Mukhtar JSC state as follows:

“When the evidence of a witness supports the case of his opponent against whom he purports to give evidence, the opponent can take advantage of the evidence to strengthen his case.

If it is consistent with and corroborates his case, that will be admission against interest of the party that called the witness the admission is relevant and admissible evidence.” See also ODI -VS IYALLA (2004) 8 NWLR (Pt. 875) 283 and YUSUF -VS- OBASANJO (1005) 18 NWLR (Pt. 956) 96.

Finally, the 1st Respondent as DW56 testified and completely distanced himself from all those mentioned by appellant’s witnesses notwithstanding that they never were physically at the polling units in respect of which they gave evidence. The appellant from the state of pleadings and evidence did not discharge the strict burden placed on him by section 138(1) of the Evidence Act of proving the commission of the offences he made the basis of one of the grounds in his petition. The tribunal’s decision in that regard is unassailable. This resolves Appellants 2nd issue against him as well.

ISSUE NO.3

The complaint of the Appellant under issue NO.3 is that the lower tribunal refused to evaluate and act on the evidence of his expert witnesses PW17, PW32 and PW77 in spite of the fact that these evidence was not contradicted and indeed confirmed by DW55, the expert witness called by the 1st Respondent on the subject matter. According to the Appellant the credibility of any of these witnesses was not shaken at cross-examination and that in spite of the settled position of the overall result of the finger print examination and comparison of the ballot papers by Adrian Forty (PW17) that the total ballot paper with multiple voters is 31,638 in favour of the 1st Respondent and his party PDP, the tribunal still held that it was still unable to determine whether the 31,368 ballots with multiple votes came from the votes of all the parties that contested election or from the PDP alone, moreso, as the witness failed to produce the multiple votes scanned.

Learned leading Counsel for the Appellant submitted that since all the ballots scanned were those of PDP as given in the uncontroverted evidence of PW17, there was no reason why the trial tribunal should be in doubt as to which party the 31,638 ballots were wrongfully cast.

Relying on the case of OYAKHIRE -VS- OBASEKI (1986) 1 NWLR (PT.19) 735 at 742. Appellant’s Counsel submitted that on the whole PW17 was not faulted on his expertise, the quality of work, his neutrality and his experience and therefore that the lower tribunal was in serious error by holding that the witness PW17 disowned and abandoned exhibit PW17B as not made by him and that the Appellant must offer an explanation.

Appellant’s counsel submitted that he trial tribunal was on a voyage of discovery by holding that” from our observation none of the experts demonstrated absolute neutrality” and that it was this extraneous observation that led the tribunal to wrongly apply the ratio of the case of UTB -VS- AWANSIGANE ENTERPRISES LTD (1994) 6 NWLR (Pt. 348 – 56) at 77 where Uwaifo JSC said “expert called by a party in certain circumstances in some cases with studied caution. ”

Learned Senior Counsel for the Appellant submitted that the opinion rendered by PW17, PW32 and PW77 remained unchangeable, uncontroverted and uncontradicted and relying on the cases of SEISMOGRAPH SERVICES LTD -VS- OGBENI (1976) 2 SC 85, R. V. MATHERSON (1985) 2 ALL E. R. 87; FAGBENRO -VS- AROBADI (2006) 7 NWLR (Pt. 978) 139; UTB -VS- AWANZIHGANE ENTERPRISES LTD (supra), NGIGE -VS- OBI (2004) 2 NWLR (Pt.999) 143, ADELEKE -VS- IYANADA (2007) 2 NWLR (Pt. 729) 20, HASHIDU -VS- COLE (2003) 13 NWLR (Pt. 997) 326, submitted that the lower tribunal was obliged to ascribe probative value and was bound to use, accept and rely on the testimonies of these witnesses.

Appellant’s Counsel also reviewed the evidence of DW55, one John P. Lazzaretto, the 1st Respondent’s fingerprint expert who said amongst other things that 71.52% of the fingerprints are of no forensic identification value due to the way and manner votes impressed their fingerprint while thumb printing in Ekiti State. The witness said Appellant’s counsel agreed that he is a certified latent print examiner or expert and that he had never carried out any finger print examination on ballot papers throughout his carrier as a fingerprint examiner or identifier. Appellant’s counsel furthered that the witness could not demonstrate the basis of his finding, as he said the courtroom is not a controlled environment and the crowd was large, this, even when prompting to demonstrate his findings came from the 1st Respondent.

The only conclusion to be drawn, said Appellant’s Counsel is that the witness DW55 is only a latent print examiner as confirmed by him and could not validly examine patent prints like ballot papers which is not in his area of specialization.

Appellant’s Counsel pointed out other contradictions in the evidence of DW55 because DW55’s testimony was not reliable, the report and findings of PW17 on the percentage of multiple thumb print remained unchallenged and more cogent than the baseless findings of DW55 who could not demonstrate his findings.

Learned leading counsel for the Appellant also reviewed the evidence of Tunde Yadeka PW32 the Mathematical forensic Analyst who did the cropping of the computer images of the ballot papers for the use of Andrian Forty PW17 and also the evidence of Folorunso Aluko PW77 the Political Scientist/Sephologist who conducted Data Analysis through the cropped images on the ballot papers used for the election in Ekiti State.

Learned Counsel for the Respondent submitted that the trial tribunal ought to have accepted and acted on the testimonies of PWs 17, 32 and 77 for the following amongst other reasons:

1. The comparison of the ballot papers in their unique serial number by the experts revealed a substantial number of instances of multiple voting as evidence by long runs of consecutive ballot papers bearing impressions that had been made by the same person.

2. The images with sufficient details had not been included in the total as multiple votes; many of those images actually disclosed a noticeable level of multiple votes from a voter placing his unique impression on the ballot papers.

3. From the level of multiple votes identified, it is clear that they are not random instances of persons merely seizing the opportunity of usually casting more than one vote, but a determined and systematic operation on a grand scale throughout the areas of the state examined.

4. PW17 as the leader of the team conducted a random checking on the images of ballot papers examined and analyzed by the other 50 experts that worked with him.

5. He was able to demonstrate the basis of the findings convincingly and credibly.

6. The integrity, qualification and competence of the witness was not shaken under cross-examination.

In contrast and in respect of DW55, learned leading counsel for the Appellant summed up as follows:

1. He is a latent print identifier.

2. He is not an expert on patent fingerprints.

3. The examination and analysis of ballot papers concerns patent fingerprint examination.

4. The expert also specialized in Crime scene investigation.

5. The witness agreed that there is disparity between LATENT and PATENT.

6. The witness and his colleagues only succeeded in separating the ballot papers with forensic value and those without forensic value.

7. The witness did not analyze the ballot papers with value to ascertain the percentage of multiple thumbprints (if any).

8. The witness gives conflicting evidence on the various steps involved in the analysis of ballot papers.

9. The witness could not tell the tribunal an average duration to examine or analyse one ballot paper.

10. The expert conducted examination of ballot papers in the court premises but despite the order granted them to demonstrate, the witness emphatically said that he could not demonstrate the basis of his findings.

11. The reason for the inability of the witness to demonstrate was that the environment was not controlled and that there was a crowd which contradicts his claim of being able to operate in crime scene.

12. The findings of the expert on the ballot papers without forensic value support the findings of PW17 and show that PW17is a witness of truth.

13. The witness had never conducted examination and analysis on ballot papers before.

In relation to PW32 and PW55, learned leading counsel for the Appellants surmised that:

1. PW32and PW55gave the basis of their findings and requisite qualification.

2. the PW32and PW55could not be shaken under cross- examination and gave credible, cogent and plausible evidence of the areas they claim to have possessed expertise.

And concluded on issue No. 3 that this tribunal should place the requisite premium on the testimonies of the expert witnesses called by the Petitioner/Appellant and act on their findings and a fortiori deduct the number of votes contained in the report from the total scores of the 1st Respondent.

The 1st Respondent reacted to Appellants’ issue No. 3 in his issue NO.5, when the 2nd set of Respondents that is the 2nd – 16th Respondents reacted to Appellants issue NO.3 in their issue NO.4.

The Learned Counsel to the Respondents pointed out that throughout the length and breadth of the Appellant arguments on this issue, the Appellant was unable to fault the conclusion of the lower tribunal and/or show why this appeal tribunal should interfere with same having had the sole benefit of watching these expert witnesses testify.

The Respondents reminded us of the findings of the lower tribunal more particularly at pages 4304 and 4307 of the record.

First, at page 4305 that:

“We observed from the results issued form their examination of the same ballot papers that their findings are diametrically opposed to each other. This is why we are approaching their results with studied caution, particularly as they were in the tribunal upon commission of -the parties who called them. From our observation none of the experts demonstrated absolute neutrality in court.”

And at page 4307, that:

“From the foregoing we are satisfied that it is very unsafe to rely on the evidence of these experts. We have also considered the reports of PW32 and PW77 and find no assistance in them towards the determination of this petition. On the whole we have arrived at our decision without regard to the testimonies of all the experts witnesses as we found little or no probative value in their evidence.”

The Respondents could not see any reason why the Appellant would be dissatisfied with those findings of the lower tribunal and relying on the case of ADMINISTRATOR GENERAL DELTA STATE -VS- OGOGO (2004) 2 NWLR (Pt. 366) 366 at 390, AGBI -VS- OGBEH (2006) 11 NWLR (Pt. 990) 65 at 115, they (Respondents) reminded us that evaluation of evidence and ascription of probative value thereto is the primary duty of the trial court.

Furthermore, said Respondents Counsel, the entire report of PW17, the Appellant’s star expert witness is worthless as none of the 50 experts in the team of PW17 who allegedly conducted forensic examination on the ballot papers was called as witnesses. On this, the Respondents relied on the case of ANPP -VS- USMAN (2008) 12 NWLR (Pt. 100) 11 at 73 and added, relying on the same case that a paid expert who rendered an opinion at the instance of a party to suit ought not to be attached any weight. Respondents counsel pointed out that none of the experts is a specialist in electoral matters and that by his own admission at page 3351 of the record. PW17 Adrian Forty said “this is my first forensic examination on electoral materials… ” Also, Counsel for the Respondents have further urged us to note the numerous lacunae, inconstancies, and contradictions in the evidence of the Petitioner’s/ Appellant’s expert witnesses.

First, the PW17 – Andrian Forty admitted on Oath that he was in the United Kingdom with Oba Nsugbe Esq. Q. C. on the 11th day of May, 2007 when he was said to have purportedly sworn to a witness statement on oath exhibit PW17B which was used to frontload the Petitioner’s petition on the 11th day of May, 2007.

Second, the PW17 – Adrian Forty in his witness statement on oath, Exhibit PW17A said in paragraph 43(a) and (b) as follows:

“The overall result of the fingerprint examination and Comparison of the ballot papers from the contested Areas was as follows:

(a) Total ballot paper examined – 139,9078 (sic)

(b) Total ballot paper with multiple votes – 31,638”

But under cross-examination by Learned SAN for the 2nd – 16th

Respondents at page 3351 of the record (Vol. V) PW17said as follows:

“This is my first forensic examination on election materials. I cannot tell you the names of those who did the scanning in Ado, the team was led by Tunde Yadeka. Mr. Yadeka was the team leader but I do not know the name of others who performed the examination under him. Neither myself nor my other U. K. team members did perform the examination in Nigeria. We received total of 130,978 ballot papers. I never received subpoena from the court to come and testify before the court. I was instructed to conduct the examination on behalf of the Petitioner. I was in U. K. throughout 11th May, 2007. I did not receive the originals of the ballot scanned by Tunde Yadeka. We received scanned images of the ballots not the originals and I never worked on the originals. There are 117 images on Exhibit A4. The serial from the first image to the last image are from one polling unit.

I cannot answer whether T. Yadeka is forensic expert. The 130,978 Exhibit A5 are the total number of ballots examined by us for the Governorship. The 130,978 ballots we examined are the total ballots for all the parties. I can remember PDP and AC are some of the parties.”

Respondents counsel further submitted that at page 3353 of the record still under cross-examination, PW17said:

“My complete team of experts is myself and 50 others. From Exhibit A1 – A7 none of us experts signed it. The total ballots on pages 1 – 33 of A7 were the ballot papers found in the ballot boxes scanned. I cannot tell where A2 was scanned as I did not do the scanning. None of the experts aside Yadeka who worked (sic) were with me in the U. K. I believe the Petitioners paid our professional fees and other miscellaneous. I cannot tell the experience of the experts who worked with Yadeka. The ballots which were cropped and sent to me by Yadeka indexed with serial numbers. In Exhibits AS, I did not indicate the serial numbers of the ballots scanned or cropped to me. I did not indicate the serial numbers on the scanned or cropped ballots in Exhibit A6. I did not indicate the serial number of the ballots in A7 (form pages 1 – 33) which were scanned or cropped.”

Respondents counsel pointed out that the same PW17 who at first said that the 130,978 cropped ballot papers were for all the candidate turned round at page 3357 under cross-examination by Adenipekun SAN Learned Counsel for the 1st Respondent.

“Mr Yadeka was instructed to crop the ballots for PDP. Cropping is to capture a particular area for over all scanning, in the instant case it was to crop up the area on the right of PDP (sic) PDP candidate which totaled 130,978.”

Now, in deciding Appellant’s issue NO.3, it must be pointed out that the Appellant did not in any way dispute the various lacuna, inconsistencies and contradictions pointed out by the Respondents in the evidence of the Petitioner’s/Appellant’s expert witnesses particularly that of PW17 Andrian Forty. Yet the two major reasons given by the lower tribunal in rejecting the evidence of the expert witnesses were contradictions and unreliability which led the lower tribunal to further express its skepticism and distrust for scientific opinion of paid expert witnesses called by the parties to a case rather by the court to assist the court in forming its own opinion in the evaluation of the totality of the evidence before it.

From the facts and circumstances of the present case, I do not have any hesitation in holding that the lower tribunal was not in error in applying the case of UTB -VS- AWANZIGANA ENTERPRISES LTD (1994) 6 NWLR (Pt. 348) 56 at 77 to jettison all the opinions of the experts because they lack probative and/or evidential value. This is because when the Court of Appeal in ANPP -VS- USMAN (2008) 12 NWLR (Pt. 1100) page 1 at 73 was faced with a similar dilemma on the evidence of expects. Aboki JCA held as follows:

“The court must be wary of admitting a report prepared by an expert, not at the instance of the court but at he behest of any of the parties to the disputes such a report should be taken with a pinch of salt. See WAZIRI -VS- THE STATE (1997) 3 NWLR (Pt. 496) at 689.

The existence of other relevant and credible evidence before the court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting it. A trial judge would be right to prefer credible evidence of a non-expert witness on an issue to the evidence of an expert on the same issue where the former is an independent witness whilst the latter prepared his evidence specifically for the case on hand on the direction of the party calling him. See ELF (NIG. LTD -VS- SILLO (1994) 6 NWLR (Pt. 350) page 258.”

In this respect, the reliance by the learned counsel for the Appellant on the authority of NGIGE -VS- OBI (2001) 14 NWLR (Pt. 999) page 1 for the proposition that a court is entitled to accept the evidence of an expert if it is credible, particularly if it is not committed or challenged and

the expert has demonstrable skills does not present a complete statement of the law and does not apply to the facts and circumstances of the present case. This court was indeed more forthcoming on the issue in NGIGE VS. OBI (2001) 14 NWLR (Pt. 999) 1 where it stated the proposition of the law as well as its exceptions most brilliantly as follows:

“A court is entitled to accept the evidence of an expert if it is credible, particularly if it is not controverted or challenged and the expert has demonstrable skills.

However, the evidence of an expert is generally an aspect of the entire evidence to be evaluated by a court because a trial court must be fully in control of all the evidence before it and must not abdicate its primary duty of assessing the evidence and forming its clear opinion in relation thereto, including any expert evidence.

In other words, a court is not bound by the evidence of an expert witness, it has an opinion in the matter, that it must exercise judicially and judiciously …..”

In the instant case, the lower tribunal was not in error to have rejected the evidence of the expert witnesses having found same to be contradictory, unreliable and unhelpful.

Issue NO.3 is accordingly resolved against the Appellant.

ISSUE NO.4:

Appellant’s complaint against the judgment of the tribunal under this issue relates to the tribunal’s holding at page 4277 of the record.

Thereat, the tribunal held as follows:

“In the instant petition, we have carefully appraised the evidence of the Petitioner and his witnesses and we are persuaded by the submission by the Senior Counsel for the Respondents that the petitioner had not led evidence to show the effect the non-compliance has on the election.”

The foregoing finding, submitted learned senior appellant counsel, is consequent upon the tribunal’s earlier findings at pages 4169, 4270 – 4271 that the petitioner had established some non-compliance with the Electoral Act and the election manual on the part of the 2nd – 16th Respondents in the conduct of the 14th April, 2007 Governorship election in Ekiti State. In particular, the tribunal had held that accreditation was not done as specified by the manual made pursuant to the provisions of the Electoral Act. In spite of the doubt the non-compliance created in the mind of the tribunal the tribunal decided the issue in a very dismissive manner instead of annulling the results of the polling units and wards so affected by the non-compliance in the contested Local Government Areas, Learned Senior Counsel referred to pages 4284 – 4285 in support of his contention that the accreditation of voters carried out by the 2nd – 16th Respondents was even found by the tribunal to have been bedeviled by fundamental vice.

The Tribunal’s examination of the voters registers in respect of the Local Government Areas in contention revealed the impossibility of ascertaining the number of voter’s accredited to cast their votes. In spite of that, the tribunal declined from enforcing the electoral Act as well as the election manual by treating the discredited accreditation process as mere irregularity not substantial enough to warrant the nullification of the results in the challenged areas. The tribunal in so doing, contended learned senior appellant counsel, violated the sanctity of the legislation.

The Court, it was submitted, had in AJADI -VS- AJIBOLA (2004) 16 NWLR (PT. 898) 91 at 95 emphasized that the election manual made pursuant to the provision of the Electoral Act 2002 are meant to be strictly followed by electoral officers and its contravention constitutes noncompliance.

Senior appellant counsel further referred to S. 146(1) of the Electoral Act and submitted that the section creates two instances when non-compliance would lead to nullification of results of an election. An election would be nullified on the basis of non-compliance with the provisions of the Act and the manual where the non-compliance was bound to impact on the result of the election. This, learned senior counsel submitted, is the decision is AJADI -VS- AJIBOLA (supra). The second scenario envisaged under 5.146(1) of the Electoral Act, argued senior counsel, is that the election would only be nullified on the basis of either the proof of non-compliance or the effect the non-compliance has on the result of the election. The decision of Tobi, JCA (as he then was) in BASHEER-VS- SAME (1992) 4 NWLR (pt. 236) 509 reflects the 2nd approach.

Learned senior counsel further referred to part of the tribunal’s decision at page 4285 of the record on the inability of the tribunal to ascertain the number of voters accredited to vote in the challenged areas as well as the tribunal’s doubt over the effect of that inability. Having found that the accreditation conducted by the 2nd – 16th Respondents for the purpose of the 14th April, Governorship election in the disputed units and wards in the Local Government Areas was a breach of the election manual, senior counsel argued, the tribunal’s only option was to nullify the election in the contested areas. It was submitted that once there is doubt as to the effect the established non-compliance had on the out come of the election in the areas under contest, the burden shifts to the Respondents to establish by credible evidence that the non-compliance has not affected the outcome of the election in the areas in contest. Learned Senior appellant counsel submitted that in the instant case the Respondents had woefully failed to discharge the onus and the natural consequences of such failure being the nullification of the result of the election. Learned Senior Counsel cited and relied on SWEM -VS DZUNGWE 1966) 1 SCNLR 111 at 119 and BUHARI -VS- OBASANJO (2005) 2 NWLR (PT. 910) 241 AT 369 – 370.

Accreditation of voters, Learned Senior Counsel further contended, constitutes the root of an election .and where it was not done or done poorly would impact negatively on the outcome of the election. Learned Senior Counsel cited and relied on Section 50(1) and (2) of the Electoral Act and the case of HARUNA -VS- MODIBO (supra), TERAB -VS LAWAN (1992) 3 NWLR (PT. 231) 569 at 587 and UWEKE-VS- EJIMS (1999) 11 NWLR (PT. 625) 39 AT 53.

He further submitted that the case of AGBAJE -VS- FASHOLA (2008) 6 NWLR (Pt. 1082) 90 at 127 relied upon by the tribunal as to the status of the election manual is inapplicable to the present case. Senior Counsel urged that we rely on AJADI -VS- AJIBOLA (supra) and IBRAHIM -VS- INEC (1999) 8 NWLR (PT. 614) 334 AT 352 and give the manual its full force. The Tribunal’s refusal to nullify the election in respect of the challenged areas where non-compliance had been established is also a refusal to be bound by the decision of a superior court, here this court in CHUKWUMA -VS- ANYAKORA (supra) which states the standard of proof in election petition where the ground does not make the commission of crime as the basis of the petition is proof on the balance of probabilities and not beyond reasonable doubt. Learned senior counsel had also argued that it was wrong of the tribunal to have relied on the answer of the Electoral officers under cross examination where such answers were not covered by the pleadings of the parties. Reliance on these answers amount to setting up a case for the Respondent’s to enable them wriggle out of their difficulties. Reliance was placed on NIPC -VS THOMPTSON ORGANISATION (1969) ANLR (Reprint) 134, GEORGE-VS- DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71 at 77 and UBN LTD -VS- OGBOH (1995) 2 NWLR (pt. 380) 647 at 671. Pleadings set the limit to which answers elicited under cross examination can be used. In the instant case where the Respondents did not plead that they directed the use of biros other than blue, their answers to that effect not covered by their pleading are unavailing.

Indeed, Leaned Senior Counsel submitted, the answers were an afterthought.

Finally, learned senior counsel contended, that the tribunal had at page 4197 of the record, misconstrued Appellant’s case in respect of Oye Local Government Area. Appellant’s case there is not that there was no election in the two wards of Oye. Rather, it is that election was not conducted in line with legal prescriptions there. What his case was in respect of these two wards and indeed the other challenged Local Government Areas cannot be gathered by reference to selected paragraphs in appellant’s pleadings but from the totality of the pleadings.

He relied on PAN ASIAN LTD -VS- NICON (1982) 9 SC 1 at 1, NGIGE -VS- OBO (2006) 14 NWLR (pt. 999) 1 at 142. He urged us to recoil from the tribunal’s errors, re-evaluate the evidence of the parties in the light of pleadings and draw our conclusion. He urged that the issue be resolved in their favour.

Arguing Appellant’s 4th issue under their corresponding issues, learned senior counsel for both sets of Respondents submitted that the election manual for electoral officers 2007, Ex. PW4J, had provided for the colour of ink to be used in electoral documents” as well as for the procedure for the filing of forms EC8A. Senior counsel conceded that as the Electoral Act itself envisaged, there were some snippets of non compliance in respect of both requirements. The non-compliance that however leads to nullification of a contested election is such that is provided for by S. 146(1) of the Electoral Act. Under the section, the tribunal had the discretion of determining whether or not the noncompliance complained of was substantial or not. In the instant case what the tribunal needed to do, and it had done it correctly, was to determine the effect of the use of ink other than the blue the manual provided for in the particular election. The burden was on the Appellant to prove to the tribunal’s satisfaction not only the non-compliance but the effect the non-compliance had on the election. Had Appellant proved to the tribunal that he would have won the election but for the use of the ink other than the blue provided for by the election manual, he would have succeeded. Counsel urged us to note that PW4, PW5, PW16, PW41, PW42, PW50, PW51, PW52, PW55 and PW59, electoral officers for the

challenged Local Government Areas had all testified to the fact that they instructed the presiding officers in the polling units to use any available ink or biro in the election since the ones supplied had malfunctioned. The officers also testified to the fact that the same voters’ registers were used for the Governorship/House of Assembly Election on the 14/4/07 and the Presidential/National Assembly Election. Learned Senior Counsel submitted that the non-compliance the appellant relied upon are as pleaded in paragraphs 37(11) and 147(1), (b), (c), (d) and (e) of his petition which bound the Appellant. Nowhere, it was argued, did the Appellant aver the failure of the Respondents to use particular ink during the election.

Further arguing this issue, Learned Senior Counsel relied on BUHARI -VS- OBASANJO (2005) 13 NWLR (Pt. 941) 1 particularly the supporting contribution of Belgore JSC (as he then was), HARUNA – VS- MODIBO (supra), BUHARI -VS- INEC (2008) 4 NWLR(PT. 1078) 546 and AWOLOWO -VS- SHAGARI (1979) Vol. 2 FNLR60 and stoutly defended the tribunal’s dismissal of Appellant’s petition that had not proved the effect the non-compliance had on the result of the election in the contested Local Government Areas. In any event, learned senior counsel argued, breach of the election manual has ceased to draw fatal consequences following the decision of this court in AGBAJE -VS FASHOLA (2008) 6 NWLR (PT. 1082) 90 AT 127 – 128. Senior counsel urged us to take the wise counsel of Aboki, JCA in ANPP -VS- USMAN (2008) 12 NWLR (Pt. 1100) 1 at 88 to the effect that whereas in the instant case the non-compliance relied upon did not substantially affect the results of the election, it should be treated as minor and incapable of vitiating the contested election. Learned Counsel placed further reliance on the cases of IHUTE -VS- INEC (1999) 4 NWLR (Pt. 599) 360 and ABBO -VS- MBUKURTA (1999) 5 NWLR (PT. 603) 393 at 397 – 398.

Counsel further submitted that Tobi JCA (as he then was) had in the case of NA BATURE -VS- MAHUTA (1992) 9 NWLR (PT. 263) 85 at 108 overruled BASHEER -VS- SAME (supra) which the senior learned Appellant cited and relied heavily upon. The further fuss made by the appellant on the issue of accreditation, it was contended by learned senior counsel for the Respondents, seem to overlook the clear finding of the tribunal at pages 4284 – 4285 that there was clear evidence of accreditation. That finding of the tribunal makes the decisions in TERAB -VS- LAWAN (supra), NWEKE -VS- EJIMS (supra) and WUANI -VS AKO (supra) unavailable to the Appellant. On the whole, learned senior counsel urged that the issue be resolved against the Appellant.

There is the need to reproduce from the record of appeal the three findings of the tribunal against which the Appellant complains under his 4th issues for determination. The first finding of the tribunal reads:

“We have earlier in this judgment reviewed the evidence of Petitioner’s witnesses Nos. 4, 5, .16, 41 42, 50, 51, 52, 55 and 59 who testified as electoral officers for aye Ido-Osi, Ikole, Gbonyin, Irepodun/Ifelodun, Ijero Ekiti South West, Ekiti West, Ise Orun and Ekiti East Local Government respectively. Each of them tendered the forms EC8Ain his/her Local Government Area and was led in evidence to spot some alterations and in some instances differences in the number of ballot papers issued and the valid votes recorded. They showed that some of the forms were signed but not stamped while others were stamped but not signed.

We have looked at the various forms EC8A tendered and the evidence rendered by the various Electoral Officers of the affected wards. We have no doubt that in some instances the spotted lapses amounted to noncompliance with the provisions of the Electoral Act.

In the instant petition, we have carefully appraised the evidence of the Petitioner as we are persuaded by the respondent. That the petitioner had not led evidence to show the effect that the non-compliance has on the election result.” Seepages A272-4276 of the record.

The facts leading to the tribunal’s, second finding appear in part at page 4284 of the record thus:

“In many cases the learned senior counsel for the petitioner made strenuous efforts through his witnesses i.e. the Electoral Officers to show that the number of votes cast is more or less than the number of accredited voters in the unit.

However, there was no evidence as to the accurate number of voters accredited in the various registers:” (underlining for emphasis)

Why? The tribunal itself provided the answer when it continued on the same page thus:

“This stems from the fact that the Electoral Officers while admitting that there was accreditation done in the voters registers of the Governorship election of 14th April, 2007 they were unable to determine the number of voters accredited for the election in the registers. This they attributed to the fact that they were not the persons who did accreditation on 14th April, 2007.” (underlining supplied for emphasis)

Now, the duties of the Electoral Officers on whom the appellant relied to prove non-accreditation of voters and from that fact arbitrary allocation of votes by the 2nd – 16th Respondents are specified in ex. PW4J thus

(i) Be responsible for running the elections in his/her Local Government Area or Area Council.

(ii) Receive the election materials from the Rec and distribute them to the supervisory presiding officer before the elections; and received them from the SPOs after the election.

(iii) Conduct the training for the supervisory presiding officers.

(iv) Supervise the training of Presiding Officers, poll clerks and poll assistant by the SPOs.

(v) Monitor the elections in the Local Government Area/Area Council to ensure that the processes are properly conducted in accordance with the law and guidelines.

(vi) Report any security concern or incident to the security agencies.

(vii) Keep securely the election results, ballot boxes and other election materials returned (Underlining supplied for emphasis)

From the foregoing, the question that yearns for immediate answer is: if the electoral officers to whom the Presiding Officers, Poll clerks and Poll Assistants are accountable cannot say whether or not how accreditation of voters was carried out and how many voters were accredited to vote in the 14th April Governorship Election in the contested areas who would?

The Tribunal without any answer to this reasonable question at page 4284 -85 pronounced on the issue as well on the third instance of non-compliance on the part of the 2nd – 16th Respondents, the use of ink other than the one the manual provided should be used for “ticking” the registers of voters in respect of the election to which this petition relates, as follows:

“On the issue of colour of ink even though the manual for election 2007 prescribe the use of blue ink for accreditation for the Governorship election, most of the electoral officers testified that on the said election they were not supplied with blue biros and where supplied they malfunctioned. Hence according to them the Presiding Officers were instructed to make use of any available ink for the accreditation. We ourselves looked at the voters registers tendered and we find as a truth that there are tickings in various colours of ink red, blue, black, pink and green which is evidence of accreditation Unfortunately however, we are not able to ascertain the exact number of voters accredited for the mere reason that there is no evidence of which colour of ticking represents the accreditation for the Governorship election. In effect the Tribunal was not able to determine the situation whether the number of votes cast exceeded the number of voters accredited in the register.” (underlining supplied for emphasis) Is it not perverse for the tribunal to hold that there had been accreditation, an exercise of knowing the number of voters participating in voting, and yet to turn round and hold at the same time that the number of such voters accredited cannot be inferred from the very exercise? I hold it is perverse to so hold. The foregoing finding of the tribunal, is a manifest example of approbation and reprobation and a dismal volte-face. The truth is that there could only be accreditation of voters for the Governorship Election if the names of the voters in the registers had been ticked in ‘blue’ to show that the voters had approached the presiding officers who by the act of ticking their names acknowledge and record the presence, willingness and readiness of the voters so accredited to vote. See MODIBO -VS- HARUNA (supra). It is interesting to note that the same register of voters inspected by the tribunal had shown tickings in ‘blue’ the very colour the manual directed should be used for the accreditation of voters in respect of the Governorship Election and in respect of which virtually all the electoral officers testified that following complaints from the Presiding Officers that the blue biros given to them for the exercise had malfunctioned, they advised the use of shades other than blue! This aspect of the Electoral Officers testimony not covered by that pleadings of the 2nd – 16th Respondents goes to no issue. I shall come back to this. In any event, the tribunal had said the explanation is an afterthought.

Appellant’s grouse under the 4th issue is that the tribunal had erred in its conclusion that. all the non-compliance which it held the appellant had proved were not further established to have had any effect on the election to warrant the nullification of the results in respect of the areas in contest. What must be inferred from these findings of the tribunal is that had the appellant further proved the effect the established non-compliance had on the result of the election, he would have succeeded in his petition. This inference obviates the need for a pronouncement on the tribunal’s reliance on the case of AGBAJE-VS- FASHOLA (supra). It must however be restated that the election manual had not been issued for the mere fun of doing so. Like rules of Court and Practice Directions, the manual has a purpose to serve and as held in all the cases alluded to by learned senior appellant counsel, breach of the provisions of the manual can lead to fatal consequences. See S.50 of the Electoral Act, 2006 and MODIBO VS. HARUNA (supra).

Part of what the tribunal contended with in the instant case is clearly the issue of an election being conducted without the accreditation of voters. The significance of accreditation in the election process, luckily, has already been pronounced upon by this court in cases referred to by senior Appellant counsel. These two decisions remain instructive, relevant and binding.

In TERAB -VS- LAWAN (1992), 2 NWLR (PT. 231) 569 – 587 – 588 this Court per Aikawa, JCA enlightens us as follows:

“As I said earlier, the accreditation of voters and the actual voting are only the extreme sign posts for determination whether malpractice has occurred. In between these two sign posts is the situation where votes cast exceed the number of accredited voters on the queue.”

But more pointedly the court in UWEKE -VS- EJIMS (1999) 11 NWLR (Pt. 625) 39 at 53 held per Akaahs JCA stated as follows:

“….I also agree that a person cannot vote until he has been accredited and it is the stamping of the voters card and the marking of the electoral register that proved that the accreditation did in fact take place. Where the electoral register is not so marked but voters are returned for the particular voting unit it will be safe to conclude that such votes were not obtained through the due electoral process. Where, therefore, the voters register had no marking but forms EC8Aor EC8A(l) are produced showing scores, such score can be excluded from the valid votes scored by a candidate at the election.”

(underlining supplied for emphasis)

In the instant case the consequence of the exclusion of the votes recorded in the Forms EC8A in respect of all the contested Local Government Areas except those pertaining the two wards in Ilejemeje Local Government Area is obvious anon.

The only logical inference to be made by any reasonable tribunal from the facts available to the tribunal on the issue of accreditation is that voters were not accredited before the election as evidence of same had not been provided by the electoral officers, those who should know and who were charged with the responsibility of conducting the election consequent upon the accreditation exercise. The Tribunal had held that the Appellant did not further prove the effect of this particular non-compliance on the election. How could he have done this directly and through whom again other than the electoral officers? The simple answer to this is that no lawful election can take place without strict compliance with the accreditation requirement. Unlike other species of non-compliance which effect on the results of the election must be separately proved by the petitioner, non-compliance arising from non accreditation of voters is so fundamental and the effect it has on the result of the election lies in the fact of its occurrence. You must have an election lawfully so called to be able to talk of the results of that election. Election results ensue from lawful votes cast by voters in a manner recognized by the law.

The Appellant in the instant case had pleaded in paragraph 37(1) thus:

“That the 1st Respondent was not duly elected by a Majority of lawful votes cast at the election:”

An election that proceeded without accreditation of voters does not allow for the casting of lawful votes and any person elected on the basis of votes cast by voters who had not been acc(edited cannot be said to have been duly elected. The election is voided ab initio and does not allow for the emergence of any result.

Learned senior counsel for the Respondents have insisted that appellant did not discharge the burden of 5.146(1) of the Electoral Act placed on him. They relied on so many authorities with the most recent.

being the unreported .decision of the Supreme Court in. Appeal No.SC51/2008, GENERAL MUHAMMADU BUHARI -VS- INEC & 4 ORS delivered on 12th December, 2008. . Both senior counsel have argued that by the decision arid all others in the same category with it the decision in SWEM -VS- DZEGWE (supra) is not only inapplicable to the instant case.

but that the decision is no longer available to the appellant. Learned senior appellant counsel has insisted that SWEN -VS- DZENGWE is still alive. I agree with Learned Appellant Senior counsel.

Tobi JSC has confirmed this much in BUHARI -VS- INEC & 4 ORS (supra) and did even more! Talking about grounds of election petitions, his Lordship stated at page 25 – 26:

” the above sub section apart, section 239 (11) (a) vests in the Court of Appeal exclusive original jurisdiction to hear and determine any question as to whether any person has been validly elected to the office of President or Vice President under the Constitution. While section 145(1) is a general provision relating to all elective positions under the Electoral Act, section 239(1) (a) is specific provision relating to only the election of the ‘President or Vice.

President. It would appear that the general provision of section 145(1) (c) of the Electoral Act can be assimilated into section 239(1) of the Constitution. In OBASANJO -VS- YUSUF: (2004) 9 NWLR (pt. 877) 144, this court held that section 239(1) (a) of the Constitution provides a sole ground for .questioning whether a person has been validly elected to the office of President or Vice President. Kutigi, JSC(as he then was) after stating the relevant position of the 2002 Electoral Act and section 239(1) of the Constitution, in his lead Judgment, said at page 181:

‘It appears clear to me from the provisions of the Constitution and the Act set out above that:

(a) A Presidential Election Petition can be presented based on the sole ground stated under section 239(1)(a) of the Constitution (see above).

(b) A Presidential Election Petition can also be presented on any of the four (4) grounds as prescribed under section 134 (a) – (d) of the Act (see above).’

Though one of us on the panel took a different view, I entirely agree with the view expressed by Kutigi, JSC (as he then was). Although section 239 of the Constitution mainly provides for the jurisdiction of the Court of Appeal, it will be wrong to ignore the clear provisions of section 239(1) (a) which vests in the court the original jurisdiction to determine any question as to whether “any person has been validly elected to the office of President or Vice President under the Constitution.”

The same 1999 Constitution has made similar provision to those contained in S. 239(1)(a) in respect of the Court of Appeal in S. 285(2) thereof vis-a-vis the tribunal which decision gave rise to the instant appeal. Appellant’s right to seek redress enures to him within the con of both the Electoral Act and the Constitution. In the con of the Electoral Act S. 146(1) as interpreted in BUHARI -VS- OBASANJO (supra) and now in BUHARI -VS- INEC & 4 ORS supra, I have already held, and let me repeat it again, that the effect of non-accreditation as an instance of non-compliance on an election lies in the fact of its occurrence. Any election that occurred without accreditation of voters as required by the Electoral Act” an allegation the appellant in the instant.

case averred to in paragraph 147(d)of his petition, is a complete nullity as same had proceeded in complete and flagrant violation of the principles of the electoral act which the law itself jealously protects in S.146(1)..

By the Electoral Act as well as within the purview of S. 285(2) of the Constitution, the impact of 5.137 of the Evidence Act on the fortunes of litigants and moreso as it affect the, fact of the instant case must be emphasized. The burden of proof by the section is never static. It vacillates between the parties in the dispute. In BUHARI -VS- INEC & 4 ORS. (supra), Tobi has lavishly revisited the principle. By it, Judgments are always given against the person on whom the burden of proof lies and has failed to discharge same. In our circumstance, appellant had made available to the court the various voters registers wherefrom the fact whether or not voters whose names appear therein and who were accredited before they voted could be deduced. The 2nd – 16th Respondents had the onus of proving that in spite of the .various “tickings” on the registers rather than a ticking in blue as provided for by the manual, the registered voters had In fact been accredited before they voted. Having failed to lead evidence in that wise, the Appellant by the combined operation of Section 137 as well as 149(d) of the Evidence Act is entitled to Judgment. This is what SWEM -VS- DZENGWE (supra), a decision the Supreme Court says in BUHARI -VS- INEC & 4 ORS (supra), is alive, is all about. In that case., the Supreme Court (per Niki Tobi, JSC) quoted the dictum of Coker JSC in. SWEM -VS- DZUNGWE (supra) from the judgment of Tabai, JCA (as he then was) in BUHARI -VS- OBASANJO (supra) to the effect at page 38 of the unreported judgment in BUHARI -VS- INEC &. 4 ORS that:

“Both learned senior counsel rely on this statement of the Supreme Court. On the principle of the decision, it is common ground that the petitioner must first establish the non-compliance. The controversy is only as to the point at which the onus shifts to the respondents to prove that the non-compliance did not substantially affect the election and, result depends on the court’s own perception of the non-compliance.

Where the court is of the opinion that the non-compliance did not and could not have had any impact whatsoever on the election, then the petition has failed to shift the onus of proof and the petition thus fails.

But, where, in the opinion of the court, the effect of the non-compliance is fundamental and has created in the court’s mind a doubt on the regularity of the election and authenticity of the ensuing result, then the burden shifts on the respondents. In such a situation, unless the respondents lead evidence to establish that the non compliance did not affect result, the petition succeeds.

It is my respectful view, that in such a situation, proof is not beyond reasonable doubt but on the preponderance of evidence.”

In the instant case, the Petitioner/Appellant had discharged the burden of proof under section 146(1) of the Act on the balance of probabilities by preponderance of evidence. See also CHUKWUMA -VS ANYAKORA (2006) ALL FWLR (Pt. 302) 121 at 137. Taking the argument to its logical conclusion, be it put that in the consequences of the exclusion of the results in the Forms EC8Ain respect of the areas in contest except the two wards in Ilejemeje lies the effect of the noncompliance relied and proved by the Appellant herein, non-accreditation of voters by the 2nd – 16th Respondents, on the overall results of the election. It means that the constitutional requirement in Section 179 (2) of the 1999 Constitution for the emergence of a duly elected Governor from an election in that behalf would not have been met!

The attempt in this respect first by the lower tribunal and before us in this appeal by the Respondents to justify the use of other biros as evidence coming from the Petitioner’s/Appellant’s witnesses, that is the Electoral Officers, is not permissible not merely for the reason of eliciting evidence outside of pleadings under cross examination as argued by the learned senior counsel for the Appellant, but also, because greater value ought to be given to the documentary evidence, electoral materials statutorily prepared by the 2nd Respondents themselves.

In the recent case of INEC -VS- OSIHOMOLE (unreported) Appeal NO. CA/B/EPT/91/2008 delivered on 11th November, 2008, Umaru Abdullahi, JCA who delivered the lead judgment captured the situation at page 33 as follows:

“Ironically, INEC and its officers submitted in their brief that the Tribunal relied on documents only and discarded the oral testimony of PW47 did not portray it as an “impartial arbiter in the circumstances” but that is an unwarranted attack on the Tribunal.

The tribunal is right to place a greater value on documentary evidence than on oral testimony. The position of the law is that the most reliable, if not the best evidence is documentary evidence. It is certainly more reliable than oral evidence -See AKINBISADE VS. THE STATE (2006) 17 NWLR (Pt. 1007) 185 SC and AIKI VS. IDOWU (2006) 9 NWLR (Pt. 984) 47 at 65 ”

Finally, in relation to this issue, the result of the physical counting of votes in the affected Local Government Areas Which led to the deduction of unlawful votes by the tribunal from the votes of two of the parties who contested the election merely confirms that the allegations of non compliance with the Electoral Laws and the manual by the Petitioner/Appellant are not spurious and are proved on the balance of probabilities.

For all that I tried to say in the foregoing, I resolve this issue in favour of the Appellant.

The results in the various units and wards in the ten (10) contested Local Government Areas, that is Oye, Ido-Osi, Ikole, Gboyin, Irepodun/Ifelodun, Ijero, Ekiti South West, Ekiti West, Ise-Orun and Ekiti East Local Governments respectively are held to be vitiated by noncompliance.

Issue No.5 and the Cross Appeals

One of the attendant consequences of the resolution of the 4th issue in favour of the Appellant is that consideration of the 5th issue in the appeal as well as the two cross appeals all of which raise questions on the deduction of votes in respect of an election adjudged to be a nullity, has become academic. The issue and the cross appeals are accordingly discountenanced.

CONCLUSION

The appeal is allowed in part and consequently: I hereby order as follows:

1. The return of the 1st Respondent on the basis of the unconcluded election of 14th April, 2007 is hereby set aside. 1st Respondent is to vacate his office immediately and hand over to the speaker of the Ekiti State House of Assembly pending the conclusion of the election.

2. The Independent National Electoral Commission (INEC) shall within 90 days of this order conduct supplementary elections in the various units and wards in the 10 Local Government contested by the Petitioner/Appellant, namely:

1. Ido-Osi Local Government – all wards.

2. Ikole Local Government – 9 out of 12 wards as follows:

Ijesha Isu – ward 7

Ikole ward I

Ikole ward II

Ikole North – ward 4

Ikole South- ward 5

Araromi/Bolorunduro – ward 6

Odo Ayedun I – ward 8

Oke Ayedun I – ward 10

Irese/Ipole/Iyemora

3. Oye Local Government – two wards – namely: Oye and Oye II

4. Ekiti West Local Government – 4 wards namely: wards 7, 8, 9 and 10.

5. Ekiti South West Local Government – ward I, ward II

6. Irepodun/Ifelodun Local Government – 8 wards namely:-

Are ward 2

Awo ward 3

Igbemo ward 4

Igede I ward 5

Igede II – ward 6

Igede III – ward 7

Iropora/Esure/Eyio – ward 8

Iwaroko ward 9

7. Ise-Orun Local Government – all wards.

8. Ijero Local Government – 8 wards namely:

Ipoti ward A

Ipoti ward B

Ilaro ward B

Ekameta ward

Odo Owa ward I

Odo Owa ward II

Ijero ward I

Ijero ward II

9. Gboyin Local Government – 3 wards namely: Ijan, Egbe Iro and Imesi wards

10. Ekiti East Local Government – 8 wards namely:

Omu Oke I

Araromi I

Kota I

Kota II

Obadore I

Obadore II

Ilasa I

Ilasa II/Ikuna/Araromi.

It must be noted that by the Appellant’s concession in his brief of argument, no oral evidence was offered in relation to the 2 wards purportedly contested in Ilejemeje Local Government.

3. The results in the (6) six uncontested Local Government Areas (including Ilejemeje) would remain as declared by the Independent National Electoral Commission and shall be added to the results of the ordered supplementary elections in respect of the ten (10) Local Government Areas.

Finally, the Appellant is entitled to cost of this appeal put at N30,000 against each of the Respondents.

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Other Citations: (2009)LCN/3113(CA)