All Nigeria Peoples Party & Anor. V. Alhaji Saidu Nasamu Usman & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This is an appeal against the decision of the National Assembly/Governorship Election Petition Tribunal sitting at Birnin Kebbi delivered on 20th October, 2007.

The facts of the case briefly are that on 14th April, 2007 elections were held throughout the country into the Governorship seats of the 36 states of the Federation of Nigeria. The 1st Petitioner/Appellant contested the Governorship seat on the platform of the All Nigeria Peoples Party (ANPP) and polled 134,553 votes, while the 1st Respondent,, who was the candidate of the Peoples Democratic Party (PDP), scored 469,595 votes. Consequently, the 1st Respondent was declared the winner of the election and returned as the elected Governor of Kebbi State.

Against the declaration of the 1st Respondent as the winner of the election, the Appellants as Petitioners filed a petition before the Tribunal challenging the 1st Respondent’s return 6n the following grounds:-

1. That that 1st Respondent was not qualified to contest the election.
2. That the election was invalid by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.
3. That the 1st Respondent was not duly elected by majority lawful votes cast at the Election.

The said petition is in volume one on page 1 to 36 of the Record of Appeal. Upon being served with the petition, the 1st Respondent and his party the 2nd Respondent jointly filed a Reply to the petition dated 4th May, 2007 at the Tribunal on the same date. The said Reply is in volume one on pages 182-198 of the Record of Appeal.

The 1st Respondent and other Respondents to the petition joined issues with the petitioners/Appellants on the allegations contained in the petition.

In the joint Reply of the 1st and 2nd Respondents, a Preliminary Objection was raised as to the competence of the petition and the jurisdiction of the Tribunal to entertain it.

The 3rd – 318th Respondents equally filed a Reply incorporating a preliminary objection in the same terms and tenor with that of the 1st and 2nd Respondents. This can be found in volume one on pages 346-379 of the Record of Appeal.

The Appellants reacted to the written arguments of the 1st and 2nd Respondents and the Tribunal set down the Preliminary Objection for hearing. The Preliminary Objection was taken by the Tribunal and a ruling was delivered on the objection on 12th July, 2007, whereby it dismissed the objection and affirmed the competence of the petition and the jurisdiction of the Tribunal to entertain the petition.

At the hearing of the petition, Counsel to both parties adopted the statements of their witnesses which were attached to the petition and the Replies of the Respondents without calling the witnesses who deposed to the statements on oath to expatiate on the deposition or give their testimony before the Tribunal. Furthermore all exhibits were tendered from the Bar by Counsel to the parties who relied on documents in the presentation of their case. Petition No. KB/EPT/GOV/2/2007 was consolidated by the Tribunal with another Petition No. KB/EPT/GOV/1/2007 and tried together.

The Tribunal ordered Counsel to the respective parties to file their written addresses. The Tribunal delivered its judgment on 20th October, 2007, wherein it dismissed the Appellants’ Petition.

Being dissatisfied with the said judgment of the Tribunal, the 1st and 2nd Petiti6ners now Appellants appealed to this Court. The Notice of Appeal containing eleven (11) Grounds of Appeal is in volume three on pages 1330 – 1339 of the Record of Appeal.

The Appellants from the eleven (11) Grounds of Appeal distilled eight (8) issues for determination of this Appeal as follows:-

1. Whether the Appellants made any case as to the validity of the nomination of the 1st Respondent as the Governorship candidate of the, 2nd Respondent and his qualification to contest the April 14th 2007 Governorship election of Kebbi State (Ground 1).
2. What is the effect of “double sponsorship” and “invalid nomination” on the qualification of candidate under section 177(c) of the Constitution of Federal Republic of Nigeria? (Ground 2).
3. Does the breach of the provisions of the Electoral Act 2006 which result in invalid nomination of a candidate that allegedly won the election amount to substantial non-compliance of the Electoral Act which can lead to nullification of the election (Ground 3).
4. Whether the tribunal was right when it held that the 1st Respondent withdrew from his nomination as the Governorship candidate of the 1st Appellant (ANPP) before he was sponsored by the 2nd Respondent (PDP) for the same position and that there was no evidence of double sponsorship: of the 1st Respondent (Ground 5).
5. Whether the Appellants led credible evidence in proof of their allegations of substantial non-compliance with the Electoral Act 2006 and irregularities in the conduct of the election sufficient to nullify the election of the 1st Respondent (Ground 6, 8, & 9)
6. Whether Exhibit R8 (alleged to be the manual register of voters for Kebbi State) :tendered by the 3rd – 318th Respondents is admissible in evidence when no facts suggesting the existence of such register was pleaded by the said 3rd – 318th Respondents (Ground 7).
7. Was the Tribunal right when it discountenanced annexures 1 and 2 of the Appellants final Address which s(lid annexures and tables showing discrepancies in the result sheet (Form EC8A’s) already tendered and admitted as Exhibits before the Tribunal.
8. Was the Tribunal right when it discountenanced annexures 1 and 2 of the Appellants final Address which said annexures and tables showing discrepancies in the result sheet (Form EC8A’s) already tendered and admitted at Exhibits before the Tribunal.”

The 1st Respondent raised from the eleven grounds of appeal filed by the Appellant’s five issues for determination.

(i) Having regard to the pleadings of the parties and the evidence led in respect of same, whether the lower Tribunal was not right when it held that the Petitioners/Appellants failed to establish the allegation of double sponsorship of the 1st Respondent – Ground 1.

(ii) Considering the clear provisions of section 177 and 182 of the Constitution of the Federal Republic of Nigeria, ; and section 145(1)(a) of the Electoral Act, 2006, whether the 1st Respondent was not qualified to contest the election into the office of Governor of Kebbi State on 14th April, 2007 – Grounds 2, 3 and 5.

(iii) Considering the Appellants’ pleadings and the type of evidence led in respect of same whether the lower Tribunal was not right when it refused to consider/evaluate exhibits 19(a),(b),(c), R4, R10, and R11 – Ground 4.

(iv) Whether or not there was sufficient evidence before the lower Tribunal to establish the allegation of substantial non-compliance with the Electoral Act, 2006 – Grounds 6, 8 and 9.

(v) Having regard to the rules of pleadings and binding decisions of appellate courts, whether or not the lower Tribunal was not right in admitting Exhibit R8 (manual register of voters for Kebbi State) and discountenancing annexures 1 and 2 attached to Appellants’ final address – Grounds 7 and 10.

The 2nd Respondent formulated three issues for determination in the Appeal as follows:-

Issue No. (1) “Whether or not the tribunal was right when it held that the Appellant did not put in issue the reason for the substitution nor made a case relating to the time the 1st Respondent joined the 2nd Respondent.”

Issue No. (2) “Whether or not the Appellants’ case of invalid substitution/nomination can be properly or competently made the subject of a challenge under Section 145(1)(d) of the Electoral Act 2006.”

Issue No. (3) “Whether or not the Tribunal was right in holding that the Appellant did not establish its1case based on irregularities and non-compliance with the Electoral Act. ”

From the 11 Grounds of Appeal, the 3rd – 318th Respondents submitted that the following issues arise for determination:- (a) Whether the 3rd Respondent, Alhaji Usman Nasamu Saidu was qualified to contest the election (Grounds 1 & 2)

(b) Whether the lower Tribunal was right in holding that the allegations of substantial non-compliance and irregularities have not been proved (Grounds 4, 6, 8, & 9)

(c) Whether the Lower Tribunal was right in its holding on nomination, sponsorship, and double sponsorship, and interpretation of Section 34(2) of the Electoral Act, pursuant to Section 145(1) (b), in view of the provisions of Section 146(1) of the same Act (Grounds 3 & 5).

Included in the 2nd Respondent’s Brief of Argument is a Notice of Preliminary Objection praying the Court to strike out Ground 3 of the Appeal as being incompetent.

Before considering the issues set down for determination, it will be pertinent at this point to attend to the Preliminary Objection raised by the 2nd Respondent. This has become necessary because it is the law that where a preliminary objection is raised in any Appeal, it is to be given priority and determined or resolved by the Court at preliminary or initial stage before going into the merits of the Appeal. See:

Nigeria Navy v. Garrick (2006) 4 NWLR Pt. 696 Page 69 at 94 – 95; NNBC Plc v. Imokrukhe (2002) 5 NWLR Pt. 760 Page 294; Goji v. Ewete (2000) 15 NWLR Pt. 736 Page 273;

Onyekwuluje v. Animashaun (1996) 3 NWLR Pt. 439 Page 637.

The grounds of objection are as follows:-

1. Ground 3 of the Notice of Appeal does not arise nor relate to the decision of the Tribunal appealed against.
2. Ground 3 of the Notice of Appeal is not a complaint against nor a challenge of the ratio of the Tribunal’s decision as it affects the Appellants.

Learned Counsel for the 2nd Respondent! Applicant argues that Ground 3 of the Appellant Notice of Appeal does not arise from the decision of the Tribunal as it relates to the Appellant.

He maintained that the judgment was in respect of two consolidated petitions 1 and 2 and that the Tribunal rightly in their view carefully considered the respective cases of the parties on the petition and came to various conclusion based on the fact alleged in each petition.

He referred the Court to the decision of the Tribunal as it relates to the Appellants’ petition which is petition No. 2 at page 1559 of the Record of Appeal.

Learned senior Counsel maintained that the Tribunal having so stated, that is the end of the matter as far as the case’ of the Appellants in Petition No.2 on the subject is concerned.

Learned senior Counsel contended that further consideration, of the issue of whether or not cogent and verifiable reasons were given for the substitution involving the 1st Respondent by the Tribunal relates only to the Petitioners in petition No.1 and not to the Petitioners in Petition No. 2 i.e. the Appellants in this Appeal.

The statement of the Tribunal is a decision and finding inuring only to the benefit of the Petitioners in Petition No.1 and that it is not a decision in favour of Petitioners in Petition No.2.

Learned senior counsel submitted that it is settled law that consolidation of suits is for convenience and that each case retains its separate identity and character and must be separately considered. He cited the case of UBA PLC v. ACB Nig Ltd (2005) 12 NWLR pt.939 page 232 at 262.

Learned senior Counsel submitted that Ground 3 of the Notice of Appeal does not relate to any decision against the Appellants and is not a challenge to the validity of the ratio of any decision against the Appellants.

He submitted that it is trite law that an Appeal which does not arise from the decision appealed against is incompetent and must be struck out. The Court was referred to the cases of: Odubeko v. Fowler (1993) 7 NWLR Pt. 308 Page 637 at 653 G-H; Egbe v. Alhaji (1990) 1 NWLR Pt.128 Page 546 at 590A

Learned senior Counsel urged the Court to strike out Ground 3 of the Notice of Appeal as well as issue No.3 of the issues for determination.

The Preliminary Objection raised by the 2nd Respondent was responded to in the Appellants’ Reply Brief to the 2nd Respondent’s Brief of Argument dated 29th January, 2008 and filed on 30/1/2008. It has been submitted on behalf of the Appellants that the Preliminary Objection is misconceived. It was conceded on behalf of the Appellants that the Tribunal made a finding to the effect that the Appellants did not plead the absence of cogency and verifiability as the reasons for the substitution. It is the argument of the Appellants that their Ground 1 of the Notice of Appeal attacked the decision of the Tribunal to the effect that they did not put in issue the reason for the substitution i.e. cogency and verifiability. On the finding of the Tribunal that the “Petitioners in petition No.2 did not plead the absence of cogency and verifiability as reasons for the, substitution”, the petitioners/Appellants insisted that it is a follow-up to an emphasis of the earlier finding that the Appellants did not challenge the reason for the substitution which finding is now subject of Appeal before this Court vide Ground 1 of their Notice of Appeal. The Court is urged to overrule the Preliminary Objection as same is baseless.

Ground 3 of the Notice of Appeal which is in issue is contained in volume three in page 1332 of the Record of Appeal and is reproduced for ease of reference:

“3. Ground Three

The learned trial Tribunal erred in law and thereby occasioned miscarriage of justice when it held at page 58 of the judgment that proof of lack of cogent and verifiable reason does not amount to substantial non-compliance on which election could be successfully nullified. ”

The Tribunal made the following observation on page 33 of the judgment at page 1301 of the Record of Appeal on the question whether cogent and verifiable reason was given for the substitution of the 1st Respondent:

“According to the Petitioners in Petition No.1, no cogent and verifiable reason was given in Exhibit P3A in substituting the 1st Respondent for the initial candidate of the PDP contrary to Section 34(2) of the Electoral Act. The Petitioners in petition No. 2 did not plead the absence of cogency and verifiability as the reason for the substitution. What is pleaded at paragraph 7(iv) page 11 of the petition is that the name of the earlier candidate was substituted in error and no more. The witness statement of M.A. State ANPP Chairman is to the same effect and so also is the sworn statement of I.A. State Secretary of the party at page 73 and 74 of the list of witness statement of the Petitioners in petition No.2.”

In its Judgment on page 1326 of the Record of Appeal, the Tribunal made a finding of fact on the question raised that no cogent and verifiable reason was given for the substitution of the 1st Respondent as follows:

“We return to the issue as to whether the infraction of Section 34(2) substantially affects the result of the election. Having held that no cogent and verifiable reason was given for the substitution of the 1st Respondent for the initial candidate of PDP, it means that the 1st Respondent was illegally placed on the ballot paper. The question however is, was this a notorious fact known to the electorate of Kebbi State? In other words, were the electorates aware of the inherent legal defect on the 1st Respondent but nonetheless cast a majority of votes for him? No evidence has been placed before us to provide an answer to these questions. We hold therefore that infraction has not substantially affected the outcome of the Election. On the whole, we hold that there is no merit in the case put up by the Petitioners in Petition No.2 and we hereby dismiss it.”

As I have pointed out earlier in this judgment, the petition of the Appellants who were Petitioners in petition No.2 at the Tribunal was consolidated with the petition of Petitioners No. 1.”

The authority of the Tribunal to consolidate the two petitions can be found in paragraph 46 of the First Schedule to the Electoral Act 2006. It provides as follows:

“Where two or more petitions are presented in relation to the same election or return, all the petitions shall be consolidated, considered and be dealt with as one petition unless the Tribunal or Court shall otherwise direct in order to do justice or an objection in line against one or more of the petitions has been upheld by the Tribunal or Court.”

The main purpose of consolidation is to save cost and time and therefore it without usually be ordered unless there is some common question of law and fact bearing sufficient importance in proportion to the rest of the subject-matter of the actions such that it renders it desirable that the whole should be disposed of at the same time. See Nasr v. Complete Home Enterprises (Nig) Ltd. (1977) 5 SC 1;

Delta Steel Co. Ltd. v. Owners of Ship “Aditya Prabha” (1991) 3 NWLR Pt. 179 Page 369.

In Nwaeze v. Eze (1999) 3 NWLR Pt. 595 Page 410 it was held at page 416 as follows:

“Furthermore, although consolidated actions are tried and determined in the same proceedings, each remains a separate and distinct action and has its own judgment given separately at the end of the common trial. See Nasr v. Complete Home Enterprise (Nig) Ltd (1977 5 SC 1.

In the present case, the tribunal rightly consolidated the two petitions LGEP/IM/I/98 and LGEP/IM/47/98 and heard them together. The learned SAN submitted that the effect of paragraph 47 of Schedule 5 (which is the same as paragraph 46 in this Appeal) means that only one judgment should be given. I do not buy that submission at all in view of what the law says with regard to the nature of consolidated actions. The Supreme Court has made it very clear in the case of Toriola v. Williams (1982) 7 SC 27 and also in Attah v. Nnacho (1965) NMLR 28 that where suits are consolidated, each of them retains separate and individual existence.

Accordingly, at the end of the proceedings judgment should be given in respect of each suit. The Court cannot and should not determine one suit and ignore the other. It is my view that this same condition applies in the case of consolidated election petitions regardless of their being ‘sui generic.”

Consolidated petitions do not wear a single garment but rather they wear their individual garments. It follows therefore that where petitions are consolidated, each retains its individual and separate existence nonetheless.

It has been observed in the case of Alaribe v. Nwankpa (1999) 4 NWLR Pt.600 Page 551 at 560 thus:

“Consolidation does not create a set of inseparable Siamese twins. It does not mean the creation of an indissoluble fusion such that, as is being suggested here by learned Counsel for the 1st Respondent, even after judgment, a party aggrieved by the decision as it affects only one of the consolidated cases, cannot appeal against it unless his complaints on appeal cover the other cases.”

See Habib (Nig.) Bank Ltd. v. Opomulero (2000) 15 NWLR Pt.690 Page 315 at 333.

In Boni Haruna & Ors. v. Adamu M. Modibbo & anor. (2004) 16 NWLR Pt. 900 Page 487 at 592 – 594, it was held thus: “While it is correct that in a consolidated matter a court must come to separate decision on the issue agitated in each of the cases, it must be borne in mind that what is required is that the judgment of the Court must show that the trial judge adverted his mind to all the issues arising from the consolidated suits. The manner in which a judge does this very often depend on the nature of the consolidated case.”

See Balonwu v. Ikpeazu (2005) 13 NWLR Pt. 942 Page 479 at 517 – 518

Ifediora v. Ume (1988) 2 NWLR Pt. 74 Page 5 at 9.

Therefore at the end of the trial judgment should be given in respect of each petition.

In the unreported case of Dr. Emmanuel Andy Uba CA/E/EPT/7/2007. CA/E/EPT/16/2007 delivered on 18th February, 2008 all the nine (9) petitions filed by Dr. Emmanuel Andy Uba were consolidated by the Court of Appeal but a separate judgment was delivered in respect of each petition.

In Dugbo v. Kporoaro (1958) WNLR 75, it was held that the consolidation of two actions does not render the evidence tendered in one ipso fact evidence in the other.

The Court cannot determine one petition and ignore the other. See Nasr. V. Complete Home Enterprise (Nig.) Ltd. (supra) at.

In an appeal in a consolidated petition, an Appellant is limited to the decision in the particular petition complained against in the Notice of Appeal unless the Notice is amended to attack the whole decision or was so initially. See Okegbe v. Chikere (2007) 7 SC Pt.1 Page 106 at 114 0 115.

In the present case, the Tribunal instead of writing a separate judgment for each of the petitions KB/EPT/GOV/1/2007 and KB/EPT/GOV/2/2007 that it consolidated, wrote a single judgment to cover the consolidated petitions.

The Tribunal in this instance did not observe the proper procedure of writing judgment in consolidated petitions. However, since failure by the Tribunal to follow the correct procedure has not occasioned any miscarriage of justice to the parties to the petitions, and in fact none of the parties to the petitions has raised the issue as a Ground of their Appeal.

Since the finding by the Tribunal is in relation to the question raised by the Petitioners in petition No. 1, that no cogent and verifiable reason was given for substituting the 1st Respondent and the Petitioners in petition No. 2 have not made it all issue at the Tribunal, the finding of fact made on it relates to the case of the Petitioners in petition No.1. The Appellants being the Petitioners in petition No.2 cannot attack the findings of the Tribunal on the issue since it has not emerged from the judgment in their petition.

See UBA Plc v. ACB (Nig.) Ltd. (2005) 12 NWLR Pt. 939 Page 232 at 262;

Okehe v Orianwo (1998) 9 NWLR (Pt.566) 408.

I am of the opinion that Ground 3 of the Appeal having not arisen from the judgment in the case put forward by the Appellants they have no authority to question the opinion of the Tribunal on the issue.

The Preliminary Objection succeeds and it is allowed. Ground 3 of the Notice of Appeal is hereby struck out as well as issue No. 3 formulated from the said Ground by the Appellants for determination.

The Preliminary Objection having been disposed of, attention will now be directed at the consideration of the issues raised for determination in this Appeal.

Issues 1, 2 and 5 are inter-related and it will be prudent to examine them together. They are reproduced as follows for ease of reference:

“1. Whether the Appellants made any case as to the validity of the nomination of the 1st Respondent as the Governorship candidate of the 2nd Respondent and his qualification to contest the April 14th 2007 Governorship election of Kebbi State (Ground 1).

2. What is the effect of “double sponsorship” and “invalid nomination” on the qualification of candidate under section 177(c) of the Constitution of Federal Republic on Nigeria? (Ground 2).
3. Whether the Tribunal was right when it held that the 1st Respondent withdrew from his nomination as the Governorship candidate of the 1st Appellant (ANPP) before he was sponsored by the 2nd Respondent (PDP) for the same position and that there was no evidence of double sponsorship of the 1st Respondent (Ground 5).

It is the Appellants’ contention that the 1st Respondent was at the time of election not qualified to contest the election.The issue of qualification and disqualification to contest an election are regulated strictly by the Constitution. The relevant provisions of the Constitution of the Federal Republic of Nigeria 1999 are Section 177 and 182.

The Constitution stipulates what qualifies a person for the election to the office of the Governor of a State as follows: “177. A person shall be qualified for election to the office of Governor of a State if-

(a) he is a citizen of Nigeria by birth;

(b) he has attained the age of thirty-five years;

(c) he is a member of a political party and is sponsored by that political party; and

(d) he has been educated up to at least School Certificate level or its equivalent. ”

The Constitution has indicated certain attributes that disqualifies a person from contesting an election to the office of a Governor of a State as follows:

“182(1) No person shall be qualified for election to the office of Governor of a State if-

(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such case as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or

(b) he has been elected to such office at any two previous elections; or

(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or (d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment for any offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or

(e) within a period of less than ten years before the date of election to the office of Governor of a State he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or,

(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria; or

(g) being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election; or

(h)he is a member of any secret society; or

(i) he has been indicted for embezzlement or fraud by a judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunal of Inquiry Act, a Tribunal of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government; or

(j) he has presented a forged certificate to the Independent National Electoral Commission.

(2) Where in respect of any person who has been-

(a) adjudged to be a lunatic;

(b) Declared to be of unsound mind;

(c) sentenced to death or imprisonment;

(d) adjudged or declared bankrupt,

an appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier. ”

The Electoral Act cannot add to or subtract from the elaborate provisions on the subject matter of qualification and disqualification for election into office of the Governor of a State provided for by the Constitution of the Federal Republic of Nigeria, 1999.

In AG Abia State v. AG Federation (2002) 6 NWLR Pt. 763 Page 264 at it was held that:

“The Electoral Act cannot expand the criteria for qualification to contest an election under the Constitution as any such attempt is null and void and of no effect.”

Section 32 of the Electoral Act 2006 supports the view that the Electoral Act 2006 does not lay down any criteria for qualification to contest, any election outside those provided for under the Constitution of the Federal Republic of Nigeria 1999.

“32 (1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.

(2) The list shall be accompanied by affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office. (underline mine)

(5) If the Court determines that any of the information contained in the Affidavit is false the Court shall issue an Order disqualifying the candidate from contesting the election.”

I am of the opinion that any purported ground of disqualification not listed under Section 182 of the Constitution is an incompetent ground and cannot ground an election petition.See Rimi v. INEC (2005) 6 NWLR Pt. 920 Page 56.

An election can be questioned pursuant to the provisions of Section 145(1) of the Electoral Act, 2006. The Section is adumbrated as follows: “145. (1) An election may be questioned on any of the following grounds:

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

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

(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or

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

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

It is very clear that while Section 177 of the Constitution of the Federal Republic of Nigeria 1999 deals with the guidelines to be fulfilled before a candidate can be qualified to stand for an election into the office of a Governor of a State, Section 145(1) of the Electoral Act 2006 deals with grounds for questioning the validity of an election or return of a candidate.

Therefore, from the provisions of Section 177 of the Constitution of the Federal Republic of Nigeria 1999, if a candidate wishing to contest the office of a Governor of a State satisfies all the constitutional requirements for the election into the office then he is qualified to contest the election.

In Ugwu v. Ararume (2007) 12 NWLR Pt. 1084 page 367 at 478, Per Onnoghen JSC:

“Under the Electoral Act, 2006 the circumstances and facts leading to either qualification or disqualification or substitution of any candidate for any election are clearly spelt out and a candidate is supposed to meet the conditions for qualification to contest any election, before being nominated to contest that.”

See Imam v. Sheriff (2005) 4 NWLR Pt. 914 Page 80 at 157.

Thus, a candidate must first be qualified to contest the election before the issue of nomination and substitution can arise. I am of the clear view that the reference in Section 145(1)(a) of the Electoral Act 2006 to a person being qualified to contest the election refers to no other person other than a person who has met the conditions provided for in the Constitution of the Federal Republic of Nigeria 1999.

The case of the Petitioners/Appellants before the Tribunal is that the 1st Respondent was not validly nominated and was not qualified to participate in the election by reason of alleged non-compliance with the Electoral Act, 2006.

The alleged facts and circumstances relied upon by the Appellants in their petition as supporting the contention that the 1st Respondent was not qualified to contest the election are as follows:

(a) That the 1st Respondent did not serve Notice of withdrawal of his candidature as Governorship candidate of the ANPP for Kebbi State before the PDP ‘nominated’ him for the same position at the same election contrary to the Electoral Act.

(b) That the 2nd Respondent substituted the 1st Respondent with its ANPP Kebbi Chapter contrary to Electoral Act which merger was effected on 8th February, 2007 was contrary to the Electoral Act.

(c) That the purported merger cannot be the basis or ground for substitution of a candidate as contemplated under the Electoral Act.

These facts in my opinion do not raise any question that the 1st Respondent did not meet the constitutional requirements to contest for the office of Governor of Kebbi State as stipulated under Section 177 of the Constitution of the Federal Republic of Nigeria 1999.

In Ibrahim v. INEC (1999) 8 NWLR Pt, 614 Page 334 at 351, Salami JCA said thus:

“It is abundantly clear from those provisions that the grounds recognized for the purpose of presenting an election petition are acts or omission that was contemporaneous with the conduct of the election. Election tribunal has no power to investigate matters which took place before the conduct of the election. National Electoral Commission v. National Republican Convention (1993) 1 NWLR Pt. 267 Page 120, 129 and Adebiyi v. Babalola (supra). ”

I am of the firm view that the trial Tribunal was right when it held that the facts and circumstances upon which the Appellants based their Petition do not come within the ambit of Section 145(1)(a) of the Electoral Act 2006 as they do not amount to a constitutional bar to the 1st Respondent to contest the election.

In the present case, the trial Tribunal said on the issue of qualification at page 259 Volume one of the Record of Appeal as follows:

“The petitioners in arguing that the 1st Respondent was not qualified to contest the election hinged their entire case on non-compliance with Sections 34, 36 and 38 of the Electoral Act. With all due respect, non-compliance with these Sections cannot be considered as grounds of qualification under Section 145(1)(a). They properly came under the second limb of Section 145(1)(b); that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act.”

The Sections of the Electoral Act which the Appellants said have been violated are Sections 34, 36 and 38. They are reproduced as follows:

“34(1) A political party intending to change any of its candidates for any election: shall inform the Commission of such change in writing not later than 60 days to the election.

(2) Any application made pursuant to subsection (1) of this section shall give cogent and verifiable reasons.

(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.”

“36(1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for the election and the Political Party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election.

(2) Where the Commission is satisfied that a candidate has withdrawn as provided in subsection (1) of this section, his Political Party shall be allowed to nominate another candidate not later than 60 days before the date of election.”

“38. Where a candidate knowingly allows himself to be nominated by more than one ‘political party and in more than one constituency his nomination shall be void.”

These Sections of the Electoral Act upon which the Appellants rely to make their submissions that invalid nomination to contest an election is a disqualifying ground, in my opinion cannot form the basis for disqualification of a candidate to contest an election. In fact, Section 34 relates to political parties substituting, Section 36 deals with withdrawal of candidates while Section 38 concerns the issue of multiple nominations of a candidate.

Apart from denying the allegation that the 1st Respondent was not validly nominated, the Respondents also denied the existence of any merger whatsoever between ANPP and PDP in their pleadings at paragraphs 3 and 5 on page 184 of volume one of the Record of Appeal. The 1st and 2nd Respondents equally established that all the requirements for valid nomination and the requisite procedure were followed by them in the nomination of the 1st Respondent for the election into the office of the Governor of Kebbi State.

There is also the fact that the Appellants never gave the particulars of the non-compliance with the provisions of the Electoral Act as it relates to 1st Respondent’s nomination as a candidate, either in their pleadings or in their witness statement on oath.

It is the prerogative of a political party to say who their members are and who they are sponsoring for an election except in a suit where the sponsorship is challenged by a member of the party at the Federal High Court on grounds of wrong substitution particularly where no cogent and verifiable reason is given for such substitution. See Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 page 367 at 478. The Tribunal accepted an uncontroverted evidence that the 1st Respondent resigned from ANPP on 2nd February, 2007. The 1st Appellant sponsored 2nd Appellant for the same election, this step taken by the Appellants sealed the allegation of double nomination or sponsorship as the allegation has not been established by the Appellants.

It has been argued by the Respondents that even if PDP nominated and sponsored the 1st Respondent on the 5th of February, 2007, it was still within the 60 days allowed by Section 34(1) of the Electoral Act.

The election took place on 14th April, 2007. The 1st, Respondent was sponsored by the 2nd Respondent on 5th February 2007. The period between 5th February, 2007 – 14th April, 2007 is 67 days. Section 34(1) requires that notice be given of the change in writing not later than 60 days to the election. In the present case, the 1st Respondent gave his notice 67 days to the election.

The 1st Respondent’s letter withdrawing his nomination was sent through his former party ANPP that nominated him as Its Governorship candidate to the 3rd Respondent and it was dated 2nd February, 2007.

The period between 2nd February, 2007 and 14th April, 2007 is 70 days. The 1st Respondent has withdrawn his nomination by the ANPP as its Governorship candidate within the period of 70 days stipulated by Section 36(1) of the Electoral Act, 2006.

Pursuant to Section 36(2) of the Electoral Act 2006, the 1st Appellant nominated the 2nd Appellant as its Governorship candidate for Kebbi State after the 1st Respondent has withdrawn the nomination earlier made in his favour.

The Tribunal held on pages 1300 – 130 in volume three of the Record of Appeal that:

“All these are transgressions of the Electoral Act, Sections 34, 36 and 38, cannot be made an issue of qualification under Section 145(1)(a) of the Act as the Constitution has by Sections 177,182 and 187 already provided for that. Double nomination is not one of the qualifications or disqualifications. An infraction of the Act can only appropriately be considered under Section 145(1)(b) of the Act.”

On the allegation of double nomination, the Tribunal further said on pages 1303-1304 in volume three of the Record of Appeal thus: “If indeed as alleged by the petitioners, the 1st respondent was sponsored by the ANPP and PDP then it also means that ANPP sponsored both the 1st Respondent and Senator Farouk Bello Bunza. The Burden is on the petitioners to prove that such was the case. They failed to do so. We hold that there is no evidence of double sponsorship of the 1st Respondent.”

I see no good reason to disturb this finding of fact of the trial Tribunal. It is irrelevant and not the business of the Tribunal to inquire when the 1st Respondent joined the PDP.

I am of the opinion that by withdrawing his candidature in compliance with the Electoral Act 2006, the 1st Respondent has not contravened the provisions of Section 36(1) of the Electoral Act 2006 and the trial Tribunal was wrong to have, found that the 1st Respondent was not qualified to contest the election having been sponsored by his party the PDP.

The allegation of the Appellants that the 1st Respondent is not qualified to stand for the election has not been established. The Petitioners/Appellants have not discharged the onus of proof placed on them by Law. See Mogaji v. Odofin (1978) 4 SC 91.

These issues for determination are hereby resolved in favour of the Respondents.

Issues 4, 6, 7, and 8 will be examined together and they are adumbrated as follows:

“4. Whether the tribunal was right when it held that the 1st Respondent withdrew from his nomination as the Governorship candidate of the 1st Appellant (ANPP) before he was sponsored by the 2nd Respondent (PDP) for the same position and that there was no evidence of double sponsorship of the 1st Respondent (Ground 5).

6. Whether the Appellants led credible evidence in proof of their allegations of substantial non-compliance with the Electoral Act 2006 and irregularities in the conduct of the election sufficient to nullify the election of the 1st Respondent (Grounds 6, 8, & 9).
7. Whether Exhibit R8 (alleged to be the manual register of voters for Kebbi State) tendered by the 3rd-318th Respondents is admissible in evidence when no facts suggesting the existence of such register was pleaded by the said 3rd-318th Respondents (Ground 7)
8. Was the Tribunal right when it discountenanced annexure 1 and 2 of the Appellants’ final Address which said annexure are tables showing discrepancies in the result sheets, (Form EC8A’S) already tendered and admitted as exhibits before the Tribunal. ”

Learned senior Counsel for the Appellants argued that the Respondents were silent on the allegation that the electronic register given to the Appellants a week to the election was incorrect and that there was another voters register compiled by INEC which was used for the election. It has been argued on behalf of the Appellants that by neglecting to deny this serious allegation, they are deemed to have joined issues with the Appellants on it. The Court was referred to the cases of:

Lewis & Peat (Nig) Ltd. v. Akhimien (1976) ANLR Page 365 at 369; C. D. Olake v. G. O. Ekwelendu (1989) 4 NWLR Pt. 115 Page 326 at 330; Jacobson Eng. Ltd. v. UBA Ltd. (1993) 3 NWLR Pt. 283 Page 586 at 598;

Ekwealor v. Obasi (1990) 2 NWLR Pt.131 Page 231 at 251.

Learned senior Counsel contended that without stating the source of the figure stated in paragraph 6 (iv) of their respective Replies, both sets of Respondents gave what they said is the number of registered voters in each of the Local Government Areas in Kebbi State. In doing so, he argued, they did not attempt to disown the Electronic Register pleaded by the Appellants or discredit it in any way and that they also failed to plead any voter register other than the one pleaded on the state of pleadings. He argued that it is clear that the Respondents had conceded practically all the allegations relating to the voters Register and erroneous summation and entry of votes served in the various result sheets. He contended that only a nominal burden of proof was therefore placed on the Appellants in establishing their allegation.

In proof of these allegations, the Appellants said they relied on various statements on oath of their witnesses including that of Mohammed Nasiru Sarki, certified true copies of Forms EC8A’s, EC8B’s and EC8C’s given to them pursuant to the order of the Tribunal. Those Forms they maintained were tendered and admitted in evidence as Exhibits P14, (A)1 – (A)2345, P15(A)1 -(A)224 and D 16(A) (A) 21 respectively. Forms EC8A’s given to the agents of the Appellants at the 14th April Governorship election were tendered and admitted as Exhibit P13(A) 1- (A) 929, statistical analysis dated 16/08/07 (3 volumes) prepared by Mohammed Nasiiu Sarki admitted as Exhibits P.19(A), (B), (C) and the ,electronic copy of voters register admitted as Exhibit P20. The 3rd – 318th Respondents also tendered what they referred to as manual Register’ which was admitted as Exhibit R8.

The Appellants objected to Exhibit R8 but they were overruled by the Tribunal on the ground that it had given leave for the documents to be relied upon.

Learned senior Counsel maintained that it is trite law that relevance is the basis for admissibility in law. He argued that in order to determine what facts are relevant, recourse must be had to the pleadings of the parties. The Court was referred to the cases of:

Ugo v. Indiamaoei (1999) 13 NWLR Pt. 633 Page 152 at 159;

Ojomi v. Incar Motors (1993) 7 NWLR Pt.307 Page 534 at 545 – 546.

Learned senior Counsel submitted that in the absence of any fact on which the ‘manual voters Register’ can be hinged, the said register becomes irrelevant, having been sprang on the Appellants by surprise during trial.

It was argued on behalf of the Appellants that if the Respondents filed any document or led evidence on any fact that is not pleaded, and therefore irrelevant, it will go to no issue and such evidence is liable to be expunged from the records of the Court. The Court was referred to the cases of:

Alimi v. Obawole (1998) 6 NWLR Pt. 555 Page 591 at 607; Ajayi v. Fischer (1956) 1 FSC 90;

NIPC Ltd. v. The Thompson Organizations Ltd (1969) 1 All NLR 138 at 142 – 143;

He maintained that part of the major findings/conclusions of Mohammed Nasiru Sarki is that INEC produced Statement of registered voters for those five Local Government Areas whereas Exhibit P20 does not have any register for those five Local Government Areas.

Learned senior Counsel insisted that the onus shifted to the Respondents, particularly INEC to show how it came about those figures. Mohammed Nasiru Sarki, he contended cannot explain them on behalf of the Respondents. Having failed to plead any fact to show another register, the electronic register given to the Appellants one week to the election was incorrect or unreliable. ”

Learned senior Counsel argued that the Respondents (particularly the 3rd – 318th Respondents) cannot and did not lead any evidence to controvert same. He contended that indeed if any such evidence was led, it ought to be expunged from the record.

Learned senior Counsel argued that annexure 1 & 2 to the Appellants’ written final address was not fresh evidence or indeed any evidence before the Tribunal and the Tribunal was wrong to have equated those annexure with evidence. The annexure, he insisted were nothing but a graphic presentation of Exhibits P19(A), (B) and (C) in relation to Exhibits P13 – P17. He insisted that the Appellants did not introduce any fresh evidence by virtue of annexure 1 & 2 attached to the final written address he filed.

Learned senior Counsel argued that they merely produced a table which was meant to assist the Tribunal on better appreciating the evidence of Mohammed Nasiru Sarki and Exhibit P19(A), (B) and (C) produced by him.

He argued that it was wrong for the Tribunal to discountenance them and thereby rob itself of the opportunity of the assistance to properly appreciate and evaluate the witness statement on oath and the document admitted as Exhibit P.19(A), (B) and (C)] of Mohammed Nasiru Sarki only to turn round to complain that those documents were dumped on it by the Appellants.

Learned senior Counsel maintained that the Tribunal failed to properly evaluate the admission by the 3rd – 318th Respondents in Exhibit R11 on erroneous grounds to the detriment of the Appellants. He argued that INEC’s admission of irregularities which the Tribunal confirmed at page 1325 of the record did not need further evidence of the “professional or expert witness” to explain the magnitude of the irregularities in order to see ‘whether they substantially affected the result of the ejection’. He contended that a simple enumeration of the number of polling stations in which INEC conceded that there was irregularities shows that they were Nine Hundred and Ninety Nine (999). Bearing in mind that the total number of polling stations in Kebbi State is 2,398, the magnitude of irregularities is obvious. He submitted that’ it has impacted on 42% of the polling units in the State. He argued that the Tribunal did not need an “expert witness” or a professional witness to convince it that the ‘remarks’ columns in Exhibits R11 (A1-A21) made by an unknown author clearly does not carry any weight as it is only the presiding officers of each of those polling units that can explain the manifest irregularities pointed out in result sheets for those polling units.

Learned senior Counsel submitted that the trial Tribunal was wrong when it held that the Appellants failed to establish that there was substantial non-compliance with the Electoral Act 2006 and irregularities in the conduct of Kebbi State Governorship election of 14 April, 2007 which affected the result of the election.

In response, learned senior Counsel for the 1st Respondent argued that by Exhibits R10 and R11 (A1 – A21) tendered by the 3rd 318th Respondents it has been established that the Appellants were wrong in their analysis as contained in Exhibits P.19 (A), (B) and (C). Also he argued that the 1st and 2nd Respondents in their Exhibit R4 made by Prof. Mohammed Bello Yahazu and Dr. Shehu Usman Gulumbe effectively established that there were a lot of misrepresentation of facts in the analysis by the Appellants and that the conclusion reached by the Appellants in their analysis was faulty. It was contended on behalf of the 1st and 2nd Respondents in Exhibit R4 in rebuttal of the Appellants’ Exhibits 19(A), (B) and (C) that although there were some minor computational errors; they were inconsequential and were not to the advantage of any political party that participated in the election of the 1st Respondent.

Learned senior Counsel for the 1st Respondent maintained that the Appellants failed to carry out their duty before the Tribunal and merely dumped the Exhibits on the Tribunal without any witness linking the Exhibits to any aspect of the Appellants’ case. He argued that it is not the duty of a Court to assist a party to do what it ought to do in the presentation of its case. He insisted that to do that will be descending into the arena of conflict, which is not allowed in law.

Learned senior Counsel contended that the deposition of Mohammed Nasiru Sarki did not specifically explain the tendered Exhibits.

On the annexure 1 and 2 attached to the final address of the Appellants, learned senior Counsel for the 1st Respondent submitted that they were rightly discountenanced by the trial Tribunal. He argued that to accept the annexure will amount to allowing Counsel to give evidence in his address. He referred the Court to the case of Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 Page 367.

He maintained that a party who relies on any document and tenders same has a duty to relate that document to the part of the case in respect of which the document is tendered. He cited the cases of:

Terab v. Lawan (supra); Alao v. Akano (supra).

Learned senior Counsel said that the Exhibits were actually tendered and admitted by the trial Tribunal but on the authorities of Terab v. Lawan (supra) and Alao v. Akano (supra) in the absence of any witness to explain those Exhibits and link them with specific aspects of the Appellants’ case, the Court can do nothing and the case of the Appellants is bound to fail as rightly held by the trial Tribunal.

The Appellants have made a heavy weather of the written opinion evidence of Mohammed Nasiru Sarki and Exhibits P.19(A), (B) and (C) and Annexure 1 & 2 which they claim were not evaluated by the Tribunal. Since the Appellants have acquiesced to not giving oral evidence or cross-examining the witnesses on their oral testimony and on documents tendered by them, they cannot complain on appeal that the documents they tendered were not properly evaluated.

In the case of Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 Page 1 at 161, it has been held that:

“When an irregular procedure is adopted with the acquiescence of a party to a civil action, such irregular procedure cannot be a ground of appeal. Also where a wrong procedure has been followed in filling a process and no objection was raised by the party who should have objected, the Court is entitled to proceed with the hearing despite the wrong procedure followed. ”

See also Ojiegbe v. Okwaranya (1962) 2 SCNLR 358; Sonuga v. Anadein (1967) 1 All NLR 91;

Obajinmi v. A.G. Western Nigeria (1967) All NLR 31.

The Tribunal on pages 1325-1326 of the Record of Appeal made the following finding of fact on the issue thus:

“The agreement of Counsel to waive cross-examination robbed us yet again of an opportunity to access the credibility of this witness vis-a-vis Prof. Muhammed Bello and Dr. Shehu Usman Gulumbe who made Exhibits R4 and R10 admitting human ‘errors and simple errors of Arithmetic’. There is also Exhibit R11 made by or tendered by INEC.

Notwithstanding the admission by INEC of certain irregularities we have lost the benefit of these professionals or expert witnesses who give answers under cross-examination to explain the magnitude of irregularities occasioned by INEC staff in order to decide whether they substantially affected the result of the election. As things stand, we agree with the Respondents that Exhibits 19(A), (B) and (C) as well as Exhibits R4, R10 and R11 were dumped on us. We find the irregularities not proved therefore.”

On the allegations by the Appellants of irregularities and non-compliance with the Electoral Act 2006 which they said has been established. It is their contention that the Tribunal was wrong in failing to evaluate Exhibits P.19(A), (B) and (C) as well as Annexure 1 and 2 tendered by them. They invited the Court to examine the Exhibits tendered and the annexure attached to their final written address at the trial Tribunal.

The Tribunal on its part is of the opinion that Exhibits R4, R10, R11 and Exhibits P19 (A), (B) and (C) have no probative value because they were dumped on it without any explanation from the parties who tendered them.

The position of the law is that a party relying on documents as part of its case must specifically relate each of such document to that part of its case in respect of which the document is being tendered. The Court cannot assume the duty of relating each of the documents or bundles of documents tendered in evidence to specific aspect of the case for a party. It is the duty of party to do so for itself. It will be an infraction of the right to fair hearing if the Court or Tribunal engages itself in the recess of its chamber to fish out or guess which document relates to a particular aspect of the case of a party, such a duty ought to be carried out id open Court by the party. See Terab v. Lawan (1992) 3 NWLR Pt. 230 page 569 at 590.

The Tribunal in the instant case was right in attaching no probative value on these documents and ignoring the said documents in its Judgment.

This brings me to the nature and quality of the evidence of Mohammed Nasiru Sarki, Professor Mohammed Bello and Dr. Shehu Usman Gulumbe. Mohammed Nasiru Sarki was credited to have made and tendered Exhibit P19(A),(B) and (C ) as well as Annexure 1 and 2. He did not however sign Annexure 1 and 2.

Consequent upon the production of Exhibits P19(A), (B) and (C) by the Appellants, the 1st and 2nd Respondents engaged the services of Professor Mohammed Bello and Dr. Shehu Usman Gulumbe who produced and tendered Exhibit R4 which contradicts the opinion expressed in Exhibits P19(A), (B) and (C). The 3rd – 318th Respondents INEC also produced and tendered in evidence Exhibits R10 and R11 which are also response to Exhibits P19(A), (B) and (C).

Both Mohammed Nasiru Sarki for the Petitioners/Appellants and Professor Mohamtned Bello and Dr. Shehu Usman Gulumbe for the Respondents have been described as experts. The report they each gave which are Exhibits P.19(A), (B) and (C) and Exhibit R4 respectively were said to be expert opinions. INEC as the 3rd – 318th Respondents produced Exhibits R10 and R11.

There is no evidence that the makers of these documents in contention took part in voting at the Election of 14th April 2007 or were engaged in any activity pertaining to the election on the said date.

The Court Practice Directions 2007 issued by the President Court of Appeal provided under paragraph 4 titled ‘Evidence at Hearing’, specifically stipulated that any fact required to be proved at the hearing of a petition has to be proved by written deposition and oral examination of witnesses in open Court.

By virtue of Section 77(a), (b) and (c) of the Evidence Act, oral evidence must in all cases be direct – that is to say

(a) If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw that fact.

(b) If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.

(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner. See

Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 page 1 at 174; Management Enterprises Ltd. v. Otusanya (1987) 2 NWLR Pt. 55 page 179; Okpara v. FRN (1977) 4 SC 53.

In the present case, it was said to be the agreement of all the parties to the petition to file the written deposition of their witnesses and to tender documentary evidence from the bar without subjecting their witnesses to oral examination in open Court to prove their case, I am of the opinion that the said agreement is a violation of the Practice Directions made for the Tribunals.

Exhibits P.19(A), (B) and (C) and Exhibit R4 which were tendered from the bar without giving parties to the petition challenging the said documents an opportunity to cross-examine the authors of the said documents who are said to be experts. This is a clear violation of Section 57 of the Evidence Act.

The opinion of a witness as a general rule of the law of evidence is inadmissible. The law of evidence does not allow a witness to give his opinion as to the existence or non-existence of a fact in issue or relevant fact. The Evidence Act Cap 112 Laws of the Federation of Nigeria 1999 states this general rule clearly under Section 66 thus:

“The fact that any person is of opinion that a fact in issue or relevant to the issue, does or does not exist, is irrelevant to the existence of such fact except as provided in Sections 57 and 65 of this Act.”

Witnesses are called only to state facts as observed by them. They are not to draw inferences from such facts.

An opinion is essentially a sort of conclusion. An opinion not based on any evidence, is worthless. However, if it is based on evidence, then it is a usurpation of the function of the Court, for it is for the Court and not a witness to draw conclusions from the facts proved. The opinion of a witness is therefore irrelevant. See Hollington v. Hewthorn and Co. Ltd.(1943) 1 KB 587 at 595.

The evidence of opinion on matters not calling for expertise is generally excluded because like the evidence of non-experts on matters calling for expertise, it does not help the Court. Such opinion evidence could be a cause of confusion. The conditions for relevancy of expert evidence are provided for under Section 57(1) of the Evidence Act and it states as follows:

“When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.”

Expert opinion is particularly very necessary when the matter being inquired into by the Court is beyond the knowledge of a mind untrained in the discipline or act concerned.

In the present case the matter being inquired into by the experts, i.e. the witnesses of the Petitioner and that of the 1st Respondent is an electoral matter. The question is whether the 151 Respondent was not duly elected by a majority of lawful votes cast at the election. The opinion provided by both Mohammed Nasiru Sarki for the Petitioners/Appellants and Professor Mohammed Bello and Dr. Shehu Usman Gulumbe for the Respondents respectively are in the nature of statistical analysis of votes cast in Kebbi State.

I am in no doubt that statistical analysis does not fall within the items contemplated under Section 57(1) of the Evidence Act requiring the tribunal or Court to form an opinion on. In fact the tribunal in the present case did not request for an opinion from the parties nor does it require a statistical analysis of an expert to enable it determine whether a candidate has been duly elected by a majority of lawful votes cast at the election.

The evidence of expert opinion on matters such as the matter at hand which does not require calling for expertise is generally excluded under the Evidence Act as it does not help the Court and could be a cause of confusion.

Where evidence presented to the Court or Tribunal is based on the opinion of experts, the factual basis of such opinions must be supplied to the Court as this will enable the Court to determine the admissibility of the opinion and the weight to be attached to it. An opinion based on doubtful grounds or unrealistic assumptions may not be admitted and if admitted, will attract little or no evidential weight.

In the present case Mohammed Nasiru Sarki who prepared Exhibit P19(A), (B) and (C) and Annexure 1 and 2 and Prof. Mohammed Bello and Dr. Shehu Usman Gulumbe who prepared Exhibit R4 did not testify before the trial Tribunal to state the basis of their opinion, so as to enable it determine the admissibility of their opinion and the weight to be attached to them. In the circumstance, I am of the opinion that the Tribunal was right in not evaluating the contents of Exhibit P19(A), (8) and (C), Annexure 1 and 2 as well as Exhibit R4 which are based on doubtful grounds and attracting no evidential weight.

Another reason why Exhibits P19(A), (B) and (C) as well, as Exhibit R4 are not admissible in evidence has to do with whether the witnesses who prepared the Exhibits qualify as experts whose opinion is admissible in evidence.

Mohammed Nasiru Sarki’s witness statement is contained in pages 71-72 and pages 641 to 771 of Volume 1 of the Record of Appeal. The depositions are pertinent and they are hereby reproduced thus:

“WITNESS STATEMENT

I, N.S.M., Adult, male Nigerian citizen of No. 7 Kano Road, G.R.A. Birnin Kebbi, Kebbi State, do hereby make oath and state as follows:

1. That I am a holder of a degree in Mathematics and Statistics and have been a degree holder with about one decade working experience.
2. That on or about 29th day of April, 2007 I was contracted by the State Secretary of All Nigeria People’s Party, Kebbi State Alhaji Ibrahim Abarshi to carry out a detailed statistical analysis of some documents relating to the recently concluded Gubernatorial Election carried out in Kebbi State.
3. That at the time of the request, I was given form EC8 and EC8A of several Local Governments of Kebbi State issued to All Nigeria People’s Party by Independent National Electoral Commission.
4. That I subsequently sorted out the documents in accordance with the number of Local Governments in Kebbi State and thereafter according to the several Wards in the State.
5. That upon a detailed statistical analysis of the entirety of the result vis-a-vis the voters register, the EC8A and the declared result, I discovered that there were some errors of calculations and deliberate omissions. The detailed statistical analysis of the documents setting out my finding and conclusion is herewith attached to the Statement as Exhibit NSM1.

THAT I MAKE this deposition in good faith believing its content to be true to the best of my knowledge, information and belief and in accordance with Oaths Act, 1990.

Signed

DEPONENT

SWORN TO AT THE HIGH COURT REGISTRY

BIRNIN KEBBI, THIS 14TH DAY OF MAY, 2007.

BEFORE ME

SIGNED AND DATED

COMMISSIONER FOR OATHS”

The second deposition of the witness is pertinent and it is hereby reproduced from pages 641 – 642 of Volume 1 of the Record of Appeal as follows:

“WITNESS STATEMENT

I, MOHAMMED NASIRU SARKI, adult, male, Nigerian citizen of No. 7 Kano Road, GRA, Birnin Kebbi, do hereby make oath, and state as follows:

1. That I had earlier made a witness statement filed along with the petition and wish to adopt same.
2. That at the time of the deposition, the detailed result from all polling units were not available, my analysis was based on the result of some polling units from only 15 Local Government Areas of Kebbi State out of the 21 Local Government Areas in the State.
3. That on 26th July, 2007, I was limited by officials of All Nigeria People’s Party, at about 12 noon with a request that I carried out detailed analysis of a large number of results sheets which were certified true copies of all result sheets used and issued in the Gubernatorial Election held in Kebbi State on 14th April, 2007
4. In the course of preparing my analysis, I considered the entries made on various result forms and created a table with rows and columns for the entries.
5. I discovered that the total sum of used (i.e. spoiled, rejected and valid) ballot papers plus used ballot papers did not always agree with the total Ballot issue.
6. I also discovered that the discrepancies I observer/with respect to the 3rd Respondent’s certified result sheets given to the petitioners’ agents.
7. In the tenth column of my analysis, I noted under the heading “difference” the difference I mentioned in the above paragraph wherein I represented missing or unexplained ballots in the negative and excess ballots in the positive.
8. I concluded that those areas where the total sum of used and unused ballot papers issued, there was over voting.
9. I also concluded that in those areas where the total of used and unused ballot papers was not up to the ballot papers issued there was a case of missing or unaccounted for ballot papers.
10. I further discovered that in some cases, the total sum of spoiled, rejected and valid ballot papers did not agree with total number used ballot and I represented such cases as “FM’ (i.e. figure manipulated) under the eleventh column of my analysis.
11. I further analyzed the difference between the number of votes in INEC register and the number of votes entered in the INEC result form EC8Bs.
12. I discovered that there were disparities in the number of registered voters given in INEC register and that stated in the various Forms EC8Bs.
13. I also produced an analysis of the summation of total number of votes affected by the differences between the INEC register and the figures stated in Form EC8B. This is contained in the last column of the document.
14. In the process of comparing my analysis with the earlier one I alluded to in my earlier witness Statement, I discovered some arithmetical and typographical errors and have taken steps to correct the errors.
15. I equally know based on my analysis that there, are significant difference between the Forms EC8A issued immediately after elections and the ones issued as certified true copies.

I MOHAMED NASIRU SARKI make this deposition in good faith believing all the averments to be the truth to the best of my knowledge, information and in accordance with the law.

SIGNED

DEPONENT

SWORN TO AT THE ELECTION PETITION TRIBUNAL REGISTRY THIS 16TH DAY OF AUGUST, 2007.

BEFORE

SIGNED

COMMISSIONER FOR OATHS”

I have searched in vain all through the three volumes of the Record of Appeal for the written depositions of both Professor Mohammed Bello and Dr. Shehu UIsman Gulumbe. There is however consensus of the parties to this Appeal that they were the authors of Exhibit R4 prepared and tendered on behalf of the 1st and 2nd Respondents.

The term “expert” is elusive because there is no guideline from the statutory provisions on how to identify an expert with a degree of certainty. See Aigbadion V. State (1999) 1 NWLR Pt. 586 page 173.

The Evidence Act under Section 57(2) describes an expert as a person “specially skilled in any of the fields of foreign law, native law and custom, or of science or art, or in identifying of handwriting or finger impression.”

It has however been held in a plethora of decided cases that an expert is a person who in the opinion of the Court has got sufficient practice or experience in the particular field of knowledge as a professional or amateur. It follows therefore that it is not only academic qualifications or formal training that can make one an expert in a particular field. See Ajani v. Comptroller of Customs (1952) 14 WACA 34.

It is for the Judge to decide whether or not a person is sufficiently skilled to give expert evidence. The correct test of the relevance of the witness’ opinion as that of an expert is whether he is specially skilled in the particular field in question. Where the evidence of opinion of an expert is relevant, he may be called as a witness and must first of all state his qualification and satisfy the Court that he is an expert on the subject in which he is to give his opinion. He must also state clearly the reasons for his opinion. In Wambai v. Kano Native Authority (1965) NMLR 15 at 17 per Hurley C.J.

“None of the so-called “experts” gave evidence and there is no reason to suppose that any of them were “experts”. In general, evidence of opinion, as this clearly was, is not relevant. It is for tire court to hear evidence of facts and to draw its own conclusions from those facts. In certain cases evidence of the opinion of an expert is relevant. But he must be called as a witness and must state his qualifications and satisfy tire court that he is an expert on the subject in which he is to give his opinion. And he must state clearly the reasons for his opinion. ”

There must be enough material before the Court to warrant treating a witness as an expert and the reception of his evidence as relevant evidence. See Fasugba v. Inspector General of Police (1964) 2 All NLR 15.

The function of an expert is to assist the Court in reaching at the truth in the judicial process. The expert is required to give his opinion upon facts which are either admitted or proved by himself or other witnesses in his hearing at the trial on matter, s of common knowledge. The opinion of an expert should be restricted to matters peculiarly within his knowledge as such expert. Any opinion outside this limit is inadmissible. See Wallace Johnson v. R (1936) 3 WACA 104.Where the opinion is based on report of facts, these facts, unless they are within his personal knowledge, must be proved independently, that is, by calling witnesses who are personally concerned in the transaction.

The party calling an expert witness has a duty to elicit from him in the witness box, evidence of the basis of his claim as an expert e.g. Professional training academic background and experience. And it is the duty of the opposing Counsel where appropriate, to cross-examine the said expert effectively in order to raise doubt as to the witness expertise. The evidence of an expert will amount to hearsay and therefore inadmissible where such expert gives his opinion on a report and is not called as a witness and cross-examined. See Shell Petroleum Development Co. v. Isaiah (1997) 6 NWLR Pt. 508 page 236.

The Court must be wary of admitting a report prepared by an expert, not at the instance of the Court but at the behest of any of the parties to the dispute. Such a report should be taken with a pinch of salt. See Waziri v. State (1997) 3 NWLR Pt. 496 page 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. v. Sillo (1994) 5 NWLR Pt. 350 page 258.

Evidence of an expert is generally an aspect of the entire evidence to be evaluated by the Court. It is the quality of his evidence that the Court would evaluate in deciding, to accept or reject the testimony of the expert called by either party. See Aigbadion v. State (supra). The Court is therefore not bound to accept expert evidence, particularly when it is not consistent with the ordinary course of events as led in evidence by other witnesses. As it is the function of the Court to make a finding on the facts in issue in the case, the opinion of the expert should be restricted to technical or scientific matters relevant to the determination of the finding.

I have said earlier in this judgment that there is no evidence before the Court that the persons who prepared Exhibits P19(A), (B) and (C) and Exhibit R4 played any part during the election of 14th April, 2007. They were neither officials at the Election or shown to have voted at the Election.

The evidence prepared and tendered by the “experts” were based on INEC Form EC8 and EC8Bs given to the agents of the contestants and they were commissioned by the litigants to prepare the statistical analysis. It therefore follows that the evidence they present could not be said to be on report of facts within their personal knowledge. Their report is not restricted to technical or scientific matters relevant to the determination of the findings of the Tribunal.

Exhibits P19(A), (B) and (C) and R4 are opinion on matters, not calling for expertise and they are therefore inadmissible ill evidence. The fact that the persons who prepared the said Exhibits gave their opinion on documents supplied by INEC and were not called as witnesses and cross-examined on their, opinion, makes it therefore a hearsay evidence.

Mohammed Nasiru Sarki, Professor Mohammed Bello Yahuza and Dr. Shehu Usman Gulumbe having failed to demonstrate that they are experts in electoral matters or be regarded or treated as expert in that field, the Tribunal had no obligation on its part to accept their opinion.

I am satisfied that the Tribunal was proper in not attaching any weight to Exhibits P19(A), (B) & (C), Annexure 1 & 2 and Exhibit R4

On the allegation of ballot stuffing, it is submitted on behalf of the 1st Respondent that it is the position of the law that where such allegation is made by a Petitioner such as the Appellants in this case, same must be proved to the satisfaction of the Tribunal before such a Petitioner can get judgment. He further submitted that it is equally the position of the law that in proving such allegation, such a Petitioner must tender the ballot boxes allegedly stuffed before the Tribunal. It has been argued on behalf of the 1st Respondent that not a single ballot box was tendered by the Appellants before the trial Tribunal. The Court was referred to the case of Haruna v. Modibo (2004) 16 NWLR Pt. 900 Page 487 at 551 – 552.

It was submitted that since that was not done by the Appellants, allegation of ballot stuffing cannot be said to have been established.

On, the allegation of undue influence of voters, learned senior Counsel for the 1st Respondent argued that this was not supported by any evidence. He argued that undue influence is not known under the Electoral Act 2006 as a ground of challenging a winner of an election such as the 1st and 2nd Respondents. He referred the Court to the case of Buhari v. Obasanjo (2005) 2 NWLR Pt. 910 Page 295.

The Appellants have also alleged that agents of the 1st and 2nd Respondents I perpetrated some malpractices. Learned senior Counsel argued that this allegation was also not established in accordance with the requirements of the law. He referred the Court to the cases of:

Opia v. Ibru (1992) 3 NWLR Pt. 231 Page 658; Wali v. Bafarawa (2004) 16 NWLR Pt. 898 page 1 at 44-45.

On the chief allegation of the Appellants and pursuant to which Exhibit P19(A), (B) and (C) were made bordering on falsification of result. Learned senior Counsel maintained that this was not established by evidence. He argued that allegations of this nature is very grave and must be proved by sufficient evidence. He maintained that since the allegation is criminal in nature, it must be proved beyond reasonable doubt. Learned senior Counsel for the 1st Respondent insisted that to prove this allegation, agents who received the forms from offices of the electoral body must be called. He contended that the Appellants did not call these agents and neither was the so called analysis tendered through them, and in fact the analysis was only dumped on the trial Tribunal without the Appellants relating them to any aspect of their case. He cited the case of Hashidu v. Goje (2003) 15 NWLR Pt. 843 Page 352 at 393.

On the allegation made by the Appellants that there were unregistered polling units, non-accreditation of voters, non-voting in some parts of Kebbi State due to non-availability of election materials, learned senior Counsel for the 1st Respondent’ maintained that the Appellants have woefully failed to establish all these infractions of the Electoral Act 2006.

Learned senior Counsel for the 1st Respondent invited the Court to the provisions of Section 146(1) of the Electoral Act 2006 and submitted that it is recognized, that in the conduct of an election there may be some infractions of the Act, but despite that. fact, the election will not be invalidated if such infraction does not substantially affect the result of this election. He submitted that from the clear provisions of Section 146(1) of the Electoral Act 2006, that even if there is any non-compliance or infraction of the Act as claimed by the Appellants such will not substantially affect the result of the election.

Learned senior Counsel for the 1st Respondent maintained that in the instant case, the Appellants were unable to establish by credible evidence any non-compliance or infraction of the Electoral Act. He argued that the Appellants were unable to establish that the infractions have affected substantially the result of the election. He referred the Court to the cases of:

Buhari v. Obasanjo (supra) at page 182; Eriobuna v. Ezeife (1992) 4 NWLR Pt. 236 page 417 at 430;

Adun v. Osunde (2003) 16 NWLR Pt. 847 Page 634 at 670; Lamidi Musediku v. Rabiu Giwa (1986) WRNLR 61.

On the invitation by the Appellants to the Court to expunge Exhibit R8, the Manual Register of voters admitted by the trial Tribunal on the ground that sufficient facts were not pleaded by the parties to support its admissibility. It has been argued on behalf of the 1st Respondent that this argument is false and misleading.

It was contended that a look at paragraph 7B of the Appellants’ Petition headed ‘Documentary evidence’ particularly paragraphs 2(ii) and (ix) will reveal that the Appellants indicated their willingness to use the same Manual Register of voters in the prosecution of their Petition. It has been argued on behalf of the 1st Respondent that he can lead evidence on the pleadings of the Petitioner. The Court was referred to the cases of:

Adeniyi v. Lagos Town Council (1950) 13 WACA 125; Emogokwe v. Okadigbo (1973) 4 SC 113 at 117.

It has also been argued on behalf of the 1st Respondent that of importance to the allegation of insufficient facts to support Exhibit R8 is paragraph 7(b)(iii) of the Petition where Appellants made extensive reference to the voters Register.

It has been submitted that sufficient facts exist even in the Appellants’ Petition to warrant the admissibility of Exhibit R8. The Court was referred to the case of B & B Construction Ltd. v. Ahmed (1998) 9 NWLR Pt.566 Page 486 at 493 where this Court deprecated a Counsel who engaged on making false submission in his Brief.

The Court is urged not to disturb the finding of fact on the admitted Exhibit R8 and, to hold that same was rightly admitted and to resolve these issues in favour of the 1st Respondents.

In response on behalf of the 2nd Respondent to the argument on the issues, learned senior Counsel submitted that the arguments of the Appellants in paragraphs 3.41, 3.42, 3.43 and 5.22 of their Brief are misconceived.

Learned senior Counsel for the 2nd Respondent argued that the pleading by which the Appellants are bound was limited to showing that:

a) There are significant discrepancies between the voters strength on INEC Register and number of registered voters in form EC8B in fifteen local government areas;

b) That the detailed analysis of 15 local government areas show the following;

NO. OF LOCAL GOVT IN INEC REGISTER 15

NO. OF VOTERS FORM EC8B 571,462

NO OF VOTERS CAST IN AFFECTED 897,592

DIFFERENCE 343,846

TOTAL OF VOTES 496,693

c) That in most polling units, the summation of votes as shown in Form EC8A is not true reflection of the ballot papers issued.

d) That the statistical analysis of some of the affected polling units reveal as follows;

BALLOT ISSUES UN-USED BALLOT SPOILT BALLOTS REJECTED TOTAL NO. OF USED BALLOTS.

PAPERS BALLOTS

388,129 116,999 13,624 26,517 263,375 1289,286

He argued that the complaint of the Appellants is severally limited to these highlights. Learned senior Counsel submitted that all the evidence being relied upon to determine or show any other facts outside the facts pleaded by the Appellants really goes to no issue at all.

He further submitted that it is trite that any evidence or any fact that is not pleaded is irrelevant and must be discountenanced. Learned senior Counsel referred the Court to the case of NIPC v. Thompson Organisation Ltd. (1969) ALL NLR Page 138 at 142-143.

Learned senior Counsel contended that what the Appellants claim that they have established entitling them to a decision in their favour as articulated In paragraph 3.5.20 of their Brief, suffers from 2 (two) major defects namely:

“i. They were largely in respect of matters not pleaded.

ii. They were too general and not specific making it difficult if not impossible to assess their substantiality or indeed their impact on the votes served by the 1st Respondent so as to determine whether or not they were affected or might have affected the result of the election. ”

Learned senior Counsel submitted that it is trite law that where a document is pleaded establish a particular fact, it can only be used for that fact and cannot be used to prove another fact which is not an issue in the pleadings. He referred the Court to the cases of:

Omega Bank Nig. Plc v. O.B.C. Ltd. (2005) 8 NWLR Pt. 928 Page 547 at 577;

Onwumere v. Agwunede (1987) NWLR Pt. 62 Page 673 at 681 – 682.

Learned senior Counsel for the 2nd Respondent argued that Exhibit P19 (A), (B) and (C) were incapable of establishing anything outside what was pleaded. He contented that most if not all the credible evidence said to have been led to establish non-compliance as argued in the Appellants’ Brief were not in respect of any specifically pleaded facts and are inadmissible.

Learned senior Counsel contended that the argument of the Appellants about INEC not producing voters register in 5 Local Government areas run contrary to the plea in paragraph 7(viii) which refers only to 4 Local Government Areas and even then the plea was not established as required by law.

Learned senior Counsel for the 2nd Respondent submitted that the nature and effect of the irregularities said to have been admitted or conceded must be substantial or significant before they can be of any use to the Appellants. He referred the Court to the case of Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 Page 1 at 192-193.

On the admissibility of Exhibit R8, learned senior Counsel contended that in the various paragraphs of the Appellants’ Reply, constant reference was made to it. He maintained that the 3rd – 318th Respondents pleaded the voters’ register.

Learned senior Counsel further maintained that the 3rd – 318th Respondents also obtained the leave of the Tribunal to file the documents among the list of documents to rely upon and that the suggestion that Exhibit R8 was not pleaded is perverse.

In response on behalf of the 3rd – 318th Respondents, their Counsel argued that all specific allegations of non-compliance and irregularities were specifically denied, so it was one deposition against another.

Learned Counsel contended that by agreement of Counsel, there was no adopted on of depositions by deponents, no oral testimony or cross-examination and that tile Tribunal was properly cautious in acting on the evidence. He maintained that the Tribunal was right in holding that the burden is on the petitioners/Appellants to prove the allegations.

Learned Counsel concluded that there was no credible evidence of any irregularities in the conduct of the election or non-compliance sufficient to substantially affect the result of the election.

On the irregularities in the conduct of the election, allegation of corrupt practices, and non-compliance with the provisions of the Electoral Act 2006, the Appellate alleged in their Petition at the trial Tribunal that there were irregularities in the compilation of the voters register, irregularities in the summation of votes cast and use of ballot papers allocated, acts of thuggery, ballot box snatching and stuffing, wrong entries in the various electoral forms, inflation of election result in favour of the 1st Respondents, over voting etc.

If was submitted on behalf of the Appellants that the trial Tribunal was wrong when it held that the Appellants failed to establish that there was substantial non-compliance with the Electoral Act 2006. It was argued that there were irregularities in the conduct of Kebbi State Governorship election of 14th April, 2007 which affected the result of the election.

The Appellants insisted that they established before the Tribunal that:

i) INEC failed to provide voters register for 5 out of the 21 Local Government Areas in Kebbi State,

ii) INEC had arbitrary statement of registered voters for most of the polling units in Kebbi State for the Governorship election of 14th April, 2007;

iii) INEC had conflicting reports for some polling units in the Governorship election held in Kebbi State on April 14, 2007;

iv) INEC recorded doubtful and irreconcilable entries in a substantial number of polling units in Kebbi State for the governorship election;

v) Based on the admission of INEC, there is uncontroverted evidence that at least 42% of the result sheets for the various polling units spread to all Local Governments in Kebbi State are fraught with irregularities.

It was argued on behalf of the Appellants that the failure of the Tribunal to consider, evaluate and give full effect to the admission of irregularities in the result sheet of 999 out of 2,345 polling units in Kebbi State by the 3rd – 318th Respondents occasioned a miscarriage of justice to the Appellants since that admission alone is proof that there was substantial non-compliance and irregularities in the conduct of the election which affected 4270 of the polling units in the State.

It has been contended on behalf of the Appellants that the substantial non-compliance with the Electoral Act 2006 and the irregularities have affected the result of the election sufficient to warrant an order nullifying the election of the 1st Respondent.

Other instances of non-compliance with the Electoral Act were stated as follows:

1. There was no voters register for 4 Local Governments in Kebbi State namely: Birnin Kebbi, Bunza, Bagudo and Shanga Local Governments.
2. There were discrepancies in figure between the number of voters in the register of voters sent to the Appellants by the 3rd Respondent and that stated in the various Forms EC8B.
3. In. Kalgo, Gwandu, Sakaba, Aliero, Jaga, Zuru, Argungu, Yelwa, Yauri, Dandi, Arewa and Augie there was substantial difference between the number of voters stated in INEC register given to the 2nd Petitioner/Appellant vis-a-vis the” number of registered voters stated in INEC Form EC8B of the corresponding wards in those Local Government

NO. OF NO. OF VOTERS NO. OF VOTERS IN DIFFERENCE TOTAL NO. OF VOTERS

LOCAL GOVT. IN INEC FORM EC8B CAST IN AFFECTED

REGISTER LOCAL GOVTS

15 571,462 897,592 343,846 496,693

BALLOT UN-USED BALLOT SPOILT REJECTED VALID TOTAL NO.

ISSUED PAPERS BALLOTS BALLOTS BALLOTS OF USED BALLOTS

399,129 116,999 13,624 26,517 263,375 289,286

The Appellants also gave instances of corrupt practices in all the Local Governments. I will however state the situation in Aliero Local Government as an example of what the Appellants said also took place on the Election Day in other Local Governments.

The Appellants alleged that students of Government Secondary School were massively registered on 13th April 2007 a day to the election and that an unofficial polling Unit was created for them, while the official polling unit was abandoned by the 3rd Respondent, INEC. The Appellants alleged that voters register was inflated to accommodate this subsequent registration.”

The voters were unduly influenced by District heads, Village heads and State Senior Civil Servants to vote for PDP.

School Principals brought their students to polling stations directed and supervised the students to vote for PDP and in some occasions threatens to expel students from their school if they voted for any other candidate. When confronted by the agents of the Appellants, the principals it was alleged said they were acting on the instruction of the State Governor. The Appellants cited Government Girls’ Secondary School, Aliero as an example of such school.

District and Village heads were alleged to have acted as agents of the PDP sitting conspicuously while their subjects came before them to thumb print their ballot paper for PDP and that when opposition patty agents objected they were told by thy District and Village heads that they were acting on the directive of the State Governor or they may lose their position.

The Appellants alleged that Senior Civil Servants and PDP Chieftains took over control of the polling stations.

The vice-chairman of Aliero Local Government was alleged to have taken away ballot boxes from the polling station to the District head of Aliero where PDP people flocked and stuffed them with ballot papers for the PDP.

The Appellants alleged that in all the polling units in Aliero Local Government, there was heavy military presence and that they behaved rudely to supporters of parties other than PDP. They also intimidated and harassed them while giving maximum supports and cooperation to PDP to rig the election.

The Appellants also stated that these armed personnel refused to do their basic function of maintaining law and order. It was alleged that their negative activities was more pronounced at Kashin Zama ward, where armed soldiers were looking on and even helped the District Head named Sabiyet to drive away other agents, beating and torturing them to leaving the polling station.

The Appellants/Petitioners at the Tribunal alleged that as a result of the situation there was multiple voting masterminded by PDP in several polling stations. The whole atmosphere they claimed was chaotic and not conducive for the conduct of a free and fair elction. It was a scenario of war.

The Appellants alleged that it was the same scenario in Bunza, Fakai, Koko, Besse, Ngasika, Sakaba, Maiyama, Shanga Yami, Zuru, Suru, Bagudo Augie, Jega, Danko/Wasugu and Arewa Local Government of Kebbi State on 14th April, 2007 the day of the election.

It is one thing to make allegations, it is another to be able to establish the allegation in a Court of law.

The Appellants tendered Exhibits P11 – P19 to establish the alleged malpractices and irregularities. Exhibits P13 – P17 were INEC documents comprising of statements of results from various levels of the polling units to the collation of the final result.

Exhibits P19 (A), (B) and (C) were made from Exhibits P13 – P17 and prepared by Mohammed Nasiru Sarki and tendered in evidence on behalf of the Appellants. It is from Exhibits P19 (A), (B) and (C) that the Appellants came to the conclusion that the alleged irregularities affected 496,326 votes out of the number of 762,387 votes cast at the election.

In reaction to the Appellants’ Exhibits P19 (A), (B) and (C), the 1st and 2nd Respondents tendered Exhibit R4 made by Prof. Mohammed Bello Yahuza and Dr. ShehU Usman Gulumbe to establish that there were a lot of misrepresentation of facts in the analysis by the Appellants and thus the conclusion reached by the Appellants in their analysis was faulty. The 1st and 2nd Respondents’ Exhibit R4, it was contended rebutted the allegation in Appellants’ Exhibit P19 (A), (B) and (C), that although there were some Arithmetical errors, they were inconsequential and were not to the advantage of any political party that participated in the election of 14th April, 2007.

The 3rd – 318th Respondents tendered Exhibit R10 and R11 (A1-A21) to establish that the Appellants were wrong in their analysis as contained in Exhibit P19(A), (B) and (C).

The Tribunal after critically examining the Exhibits tendered by parties before it, particularly as they relate to the issue of irregularities and corrupt practices came to the following conclusion at pages 1320 – 1322 in volume 3 of the Records of Appeal thus:

“We have stated the pleading of the Petitioners in both petitions and the addresses of Counsel. There is a rebuttable presumption that the result of an election declared by the Electoral body is correct and authentic. The burden is on the petitioners to rebut this presumption. If the petition relates to allegation of crime, it must be proved beyond reasonable doubt. That was the decision of the Supreme Court in Nwobodo v. Onoh (1984) 1 SCNL 1 at 32 per Bello JSC (as he then was):

‘Where allegation relates only to calculation of figures to decide the majority of lawful votes cast, proof is on a balance of probability see Omoboriowo vs. Ajasin (1984) 1 SCNJ 108 at 122, it is not in doubt that some of the allegations contained in the petitions relate to commission of crime. Abdullahi Ibrahim (SAN) had submitted that inspite of the allegations against the 3rd – 318th Respondents, they merely answered that the election was free and fair, devoid of malpractices. We wonder why learned counsel should complain about this conduct by INEC and its staff. They do not hear any burden to prove anything until such burden shifts in circumstances that it could shift. The inability of and failure of the petitioners to prove the allegations on the standard required of them is the gain of INEC and its staff. In any event against these allegations by Petitioners through their witness statement on oath on behalf of the 1st and 2nd Respondents who matched every witness of the Petitioners polling station by polling station.

We have looked at Exhibits to which our attention is drawn, we are unable to find established the case of over voting at Diko Gajere polling unit in Shanga LGA and Ikobi/Ibondo polling unit in Sakabe LGA and neither do we find established the allegation of vote difference between the result issued to the agent of the petitioners on the day of the election and its corresponding certified result. For example, Exhibit P13(A126) and P14(A176) are the results of one polling station. They have as the number of registered voters in both 936 while in both, 376 people voted at the election. We see no over voting in Exhibit P14(A1) as 371 voters are the number on the register, 249 people voted. In Exhibit P14(A89) 604 voters are on the register of voters, 545 voted”.

The Appellants have not made out any case compelling enough to warrant disturbing this finding of fact

The Appellants merely dumped the Exhibits they tendered from the bar on the Tribunal without any witness linking the Exhibits to any aspect of the Appellants’ case. It is trite that it is not the duty of the Tribunal to assist Petitioners to do what they ought to do in the presentation of their Petition. The Tribunal may be accused of descending into the arena of conflict if it were to advise any of the parties on how to conduct its Petitions. The law forbids the Court descending into the arena of conflict before it.

On the allegation that agents of the 1st and 2nd Respondents perpetrated some malpractices, it is trite law that when “an allegation of this nature is made, it is the duty of the Petitioners to establish that the agents were actively acting for the Respondents and the Petitioner must satisfy the Tribunal that not only were they agents but actually acting on the authority and consent of the Respondents. The Petitioners/Appellants must also disclose the actual place where the said agents perpetrated the alleged malpractice which prevented the electorate from exercising their franchise. See Opia v. Ibru (1992) 3 NWLR Pt. 231 Page 658.

In the present case, the Petitioners/Appellants failed to meet these requirements of the law.

In the case of Wali v. Bafarawa (2004) 16 NWLR Pt. 899 Page 1 at 44 – 43, it was held:

‘where in an election, the allegation is that malpractice or corrupt practice were committed by agents of the person returned as duly elected, the person challenging the election must prove:

(a)that the alleged agent claimed to be the agent of the elected person,

(b) that the offences were committed in favour of the elected person,

(c) With his knowledge, or (ii) under the general or special authority of such candidate with respect to the election.

Where the Petitioner fails to establish the above, then he cannot attribute any offence committed by the agents to the candidate.’

The Appellants at the Tribunal alleged in their Petition that undue influence was brought to bear on the voters. Under the Electoral Act 2006 undue influence is not a ground of challenging a winner of an election.

In Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 Page 148, it was held that undue influence is not cognizable as a ground in election petition and that any person who is desirous of prosecuting such offence would need to file a change in the normal criminal proceedings.

The allegations of undue influence even then were not supported by any evidence in the instant Appeal.

The Appellants alleged in their petition at the Tribunal of ballot stuffing, the position of the law is that where such allegation is made by a Petitioner, such as the Appellants in this Appeal, they must tender the ballot boxes allegedly stuffed before the Tribunal.

In Haruna v. Modibbo (2004) 16 NWLR Pt. 900 Page 487 at 551 – 552, it was held as follows:

“In an election petition where there is allegation of stuffing of ballot boxes, the ballot boxes in which the ballot papers were allegedly stuffed must be tendered before the tribunal and opened there. It is only when the ballot boxes are tendered before the tribunal and opened before the tribunal for the contents to be seen by everyone present in the tribunal that the allegations of the petitioner can be said, prima facie, to be sustainable.”

In the instant case, no ballot box was tendered by the Appellants before the Tribunal. It follows therefore that since that was not done by the Appellants, the allegation of ballot stuffing cannot be said to have been established.

It is the allegation of the Appellants that there were unregistered polling units at Aliero Local Government, created for students of Government Secondary School. The Appellants also alleged non-accreditation of voters, non-voting in some parts of Kebbi State due to non-violations of the Electoral Act. All these allegations were not established by the Appellants at the Tribunal.

The main allegation of the Appellants borders on falsification of result.

An allegation of falsification of result is criminal in nature; the position of the law is that it must be proved beyond reasonable doubt. See:

Yusuf v. Obasanjo (2006) All FWLR Pt. 294 Page 387 at 460;

Oyegun v. Igbinedion & ors (1992) 3 NWLR Pt. 231 Page 708; Adeola v. Owoade (1999) 9 NWLR Pt. 614 Page 30.

In Hashidu v. Goje (2003) 15 NWLR Pt. 843 Page 352 at 393, this Court held as follows:

“Where the results as declared by an electoral body, in this case Independent National Electoral Commission are challenged on the ground that there was falsification of results in that votes credited to a particular candidate was enlarged while, those of another candidate has been reduced, the correct evidence ought to come from the polling agents who received the forms from the officers of the said electoral body and in whose presence the officials prepared and signed the forms on which the disputed figures were written. (Omoboriowo v. Ajasin (1994) 1 SCNLR 108 referred to.)

The Tribunal made a finding of fact on the issue of corrupt practices as follows:

“The inability of the parties to cross-examine the witnesses has robbed us of the opportunity to decide effectively on the credibility of the witnesses. Yet the burden on the petitioners is much heavier than the burden borne by the Respondents particularly where the allegations are of commission of crime.

For instance, there is allegation of ballot stuffing, the sworn witnesses of the Respondents denied it. There is also the allegation of undue influence and corruption. School Principals, District and Village Chiefs and some Senior Civil Servants fingered as perpetrators of the malpractices in the petition filed witness statements on oath denying that they did any such thing. Without testing the credibility of these witnesses how could we decide who is speaking the truth? It is worse that counsel could not establish from the circumstances why we should believe one witness as against the other. There are yet in some, allegations the evidence of which is by people other than the agents who attended the polling stations. Hashidu vs. Goje (supra decided that only agents who attended the polling stations could give such evidence. See also Buhari vs. Obasanjo (supra). ”

On the admission by INEC of certain irregularities, it has been argued on behalf of the Appellants that a simple enumeration of the number of polling stations in which INEC concluded that there were irregularities shows that they are nine hndred and ninety nine (999). They were a total of 2,398 polling stations in the whole of Kebbi State,

It has been contended that the irregularities admitted by INEC has an impact on 42% of the polling units in the State. The Appellants maintained that the Tribunal failed to properly evaluate the admission of these irregularities by the 3rd – 318th Respondents in their Exhibits R11 on erroneous ground to the detriment of the Appellants.

The trial Tribunal made a finding on the admission by INEC vis-a-vis the allegation made by Appellants that the Tribunal failed to evaluate properly these admission on page 1325 in volume 3 of the Record of Appeal thus:

“The agreement of Counsel to waive cross-examination robbed us yet again of an opportunity to assess the credibility of this witness vis-a-vis Prof. Mohammed Bello and Dr. Shehu Gulumbe who made Exhibits R4 and R10 admitting human “errors and simple errors of Arithmetic” There is also Exhibit R11 made by or tendered by INEC.

Notwithstanding the admission by INEC of certain irregularities, we have lost the benefit of these, professionals or expert witnesses who should give answers under cross-examination to explain the magnitude of the irregularities occasioned by INEC Staff in order to decide whether they substantially affected the result of the election. As things stand, we agree with Respondents that Exhibit 19(A), (B) and (C) as well as Exhibit R4, R10 and R11 were dumped on us. We find the irregularities not proved therefore.”

It seems to me that the main objective of Section 146(1) of the Electoral Act 2006 is to ensure that not every minor non-compliance or minors breach of the provisions of the Act should vitiate an election. The Electoral Act does not permit the invalidation of an election on the mere failure to comply with minor provisions of the Act, which has no effect or do not substantially affect the outcome of the election.

The Section therefore vests an election Tribunal with powers to decide from the evidence presented before it in each case whether an alleged non-compliance is substantial enough to warrant nullification of an election. See

Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 Page 1 at 306.

Although an Appeal is said to be a continuation of the hearing process, and the Court can invoke its powers under Section 15 of the Court of Appeal Act 2004 to generally assume jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as a Court of first instance. It means that the Court of Appeal can evaluate evidence which the Tribunal failed or neglected to evaluate. However, in the present circumstance, since the Exhibits were dumped on the Court, an attempt at evaluation of the evidence will be an exercise in conjecture.

An exercise in conjecture or guesswork is ultra vires the powers conferred on this Court by Section 15 of the Court of Appeal Act.

The learned senior Counsel for the Appellants has invited the Court to consider the Exhibits tendered before’ the Tribunal and the annexure attached to their final written address before the Tribunal.

I am of the opinion that this Court has no authority to do so since no witness has been called to explain them so as to avoid being seen to be stepping into the arena of dispute before it. The law frowns at the Court descending into the arena of dispute before it.

It has been argued on behalf of the Appellants that the Tribunal was wrong when it discountenanced annexure 1 and 2 attached to the Appellants’ written final address at the trial Tribunal. The annexure it has been argued did not introduce any fresh evidence but are tables showing discrepancies in the result sheet already tendered and admitted as Exhibits before the Tribunal.

It was also argued that the Tribunal was wrong to have equated the annexure with evidence. The annexure were said to be nothing but a graphic presentation of Exhibits P19(A), (B) and (C) in relation to Exhibits P13-PI7.

The table produced in annexure 1 and 2 was meant to assist the Tribunal in better appreciating the evidence of Mohammed Nasiru Sarki and Exhibits P19(A), (B) and (C) produced by him.

It was argued that by discountenancing the said annexure 1 and 2, the Tribunal denied itself of the opportunity of assistance to properly appreciate and evaluate the witness ‘statement on oath which the Tribunal later complained were dumped on it by the Appellants.

Documentary evidence is one of the vital methods by which the Petitioner is required to substantiate his allegation in his petition. The general rule that governs the admissibility of documentary evidence is applicable to documents to be tendered in Election Petitions. See Ojukwu v. Obasanjo (2004) 1 EPR 626 at 673It is settled law that a party relying on documents in proving his case must relate each of such documents to the specific area of his case in respect of which the document is being tendered in support of his case i.e. there must be link between the document and the specific areas of the petition. See Jalingo v. Nyama (1992) 3 NWLR Pt. 231 Page 538; Terab v. Lawan (1992) 3 NWLR Pt. 231 Page 569 at 590; Hashidu v. Goje (2006) EPR 789 at 814 – 815. In Alao v. Akano (2005) 11 NWLR Pt. 935 Page 160 at 178, the Supreme Court held:

“It bears repetition to say that the case for the Appellant failed because the evidence led at the trial did not prove what was alleged in the Statement of Claim.

It must be noted that several documents were tendered pursuant to the claim but it must be borne in mind that admitted documents useful as they could be would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.”

I am of the opinion that annexure 1 and 2 attached to the written final address of the Appellants before the Tribunal were filling the gap left by the evidence of Mohammed Nasiru Sarki, which has not specifically explained Exhibit P19 (A), (B) and (C) produced by him. The documents were also not pleaded by either the Appellants or the Respondents.

The Tribunal said of annexure 1 and 2 on page 1323 in Volume 3 of the Record of Appeal thus:

“Annexure 1 and 2 were the prepared based on the report of Sarki Mohammed and annexed to the address of Counsel. From a Summary of those Annexure, we are called upon to hold that the number of votes affected by instance of over voting is 146,624 votes unaccounted for ballot papers 134,848 votes suppressed information 72,082 votes, number of votes affected where INEC produced two sets of different results 18,579 votes. This according to petitioners sum up to 496,326 votes or 65% or 2/3 of the votes cast at the election, the 496,326 votes being invalid…..

As we said earlier, annexure 1 and 2 are based on the statistical report of Sarki Mohammed. Sarki Mohammed did not sign the annexure. He signed Exhibit P19 A, B, and C. They may have been made by Counsel. The objection of Yahaya Mahmood to these annexure is based on the fact that where the written dispositions do not specifically explain the Exhibits tendered across the bar, Counsel will not be at liberty to explain them ill their final address. We agree. To accept the annexure will amount to our allowing Counsel to give evidence which is not allowed. See Ugwu v. Ararume (supra) at 445 – 447 para. C-A and Odubeko v. Powler (1993) 7 NWLR Pt. 308 page 637.”

It is trite that the address of Counsel no matter how beautifully couched cannot take the place of evidence in a trial.

I am of the opinion that to accept annexure 1 and 2 in evidence and act on them as the Tribunal was invited to do by the Appellants will amount to allowing Counsel to give evidence in his address, This is not permitted under the Evidence Act, only parties to a dispute or those invited by the parties to the dispute can testify in Court and give account based on their knowledge of the events in dispute or where they are in custody of certain documents or property which has correlation to the matter in dispute; they can tender them in evidence.

In Ugwu v. Ararume (2007) 12 NWLR Pt. 1048 page 367 at 354 the Supreme Court per Tobi JSC said:

“Parties by sheer collusion and for their mutually anticipated benefit cannot give consent to the admission of a document which the Evidence Act clearly provides is inadmissible. As admission of such evidence will clearly run counter or against the provision of the Evidence Act, the Court will ignore the so-called consent and rule that the evidence is inadmissible.”

The Tribunal in the instant appeal was right in discountenancing annexure 1 and 2 having not been pleaded by the Appellants in their petition.

On the alleged improper admission of certain documents and the non-evaluation of evidence by the Tribunal, the Appellants have argued that the Tribunal was wrong in admitting in evidence R8, the Manual Register. It has been contended on behalf of the Appellants that no facts suggesting the existence of the document was pleaded by the 3rd – 318th Respondents who tender the document in evidence or by any of the other parties to the petition.

The position of the law is that evidence led on facts not pleaded goes to no issue and such evidence if inadvertently admitted should be expunged. See:

Amobi v. Amobi (1996) 8 NWLR Pt. 469 page 638;

Olowofoyeku v. A.G. Oyo State (1996) 10 NWLR Pt 477 page 190.

Documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is connected are expressly pleaded. See Ipinlaiye II v. Olukotun (1996) 6 NWLR Pt. 453 page 148;

Bramal Shipping (Nigeria) Ltd. v. F.I. Onwadike Co. Ltd. (2000) 6 SC Pt. 11 page 133.

It is on record that the Tribunal granted leave to the 3rd – 318th Respondents to tender Exhibit R8 in evidence. The trial Tribunal said on pages 1319 – 1320 in Volume 3 of the Record of Appeal thus:

“We shall start with the documents to which objection have been taken for their admissibility. These are Exhibits R9, letter of Withdrawal by the 1st Respondent from ANPP dated 2/2/07 and the Manual Register of voters for Kebbi State, Exhibit R8. The reason given for their inadmissibility is that they were not pleaded….

We wish to say straight away that Exhibit R9 is not an inadmissible document and so also is Exhibit R8. We granted 3rd Respondent leave on the 17/8/07 to filed the documents among the list of documents he intended to rely upon. We see no basis for that objection therefore.”

The Appellants have also indicated in their petition in paragraph 7B titled ‘Documentary Evidence’ on page 36 of Volume One of the Record of Appeal that at the trial they would make use of the Exhibit RS the Manual Register.

A witness for the Appellants, Mohammed Nasiru Sarki deposed in paragraph 3 of his witness statement that he was given Electronic copy and the Hard copy of the voters register of Kebbi State issued to All Nigeria Peoples Party, the 1st Appellant by Independent National Electoral Commission (INEC) as part of the documents from which he carried out a detailed statistical analysis.

I am of the opinion that the Respondents can lead evidence on the pleadings of the Petitioners. See:

Adenuga v. Lagos Town Council (1950) 13 WACA 125; Emogokwe v. Okadigbo (1973) 4 SC 113 at 117.

Although the Appellants have contended that there is insufficient facts to support Exhibit R8, they have in paragraph 7B(iii) of their petition on page 35 in Volume One of the Record of Appeal made extensive references to the voters register thus:

“iii) Excessive voting vis-a-vis the voters register in some polling units.

a. There were inflation of election results in certain Polling Units and in some cases rendering low votes for the Petitioners less that the actual votes scored.

b. INEC failed to nullify results even in instances where the Total votes cast at a Polling Station exceeds the number of registered votes in the Polling Station and or where the number of votes cast exceeds the number of ballot papers issued to the Polling Unit.

c. Information on Form EC40C relating to record of the total number of ballot papers issued to the Polling Unit and number of unused ballot paper were in some cases deliberately not filled in an attempt to suppress track of irregularities, among the forms are

1. Form EC8A for Governorship
2. Form EC8A(1) for State Assembly
3. Where the afore stated forms are filled the sum total number of spoiled ballot papers plus rejected ballots plus valid votes does not mostly equal the total number of used ballots with many incidence of missing pieces of the ballot papers. ”

I am of the opinion that sufficient facts exist even in the petition to warrant the admissibility of Exhibit R8, the Manual Register. The Tribunal was right in admitting Exhibit R8 in evidence.

The Petitioners/Appellants have failed to adduce credible and sufficient .evidence to prove any malpractice against the Respondents at the Tribunal and not having been able to discharge the burden on them, the Tribunal was therefore right in dismissing their petition. See Kalgo v. Kalgo (1999) 6 NWLR Pt. 608 Page 639.

Issues 4, 6, 7 and 8 are also resolved in favour of the Respondents.

I see no merit in this Appeal and it is hereby dismissed. The decision of the National/Governorship Election Petition Tribunal sitting at Birnin Kebbi delivered on 20th October, 2007 is affirmed. There will be no order as to cost.

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Other Citations: (2008)LCN/2728(CA)