All Nigeria Peoples Party (ANPP) & Anor V. Hussein Namadi Abdulkadir (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J. C. A.

This is an appeal against the judgment of the National Assembly Election Petition Tribunal holden at Dutse, Jigawa State of Nigeria, delivered on the 6th day of September, 2007. On the 21st day of April, 2007, elections were conducted throughout the country for the National Assembly including that of Auyo, Kafin Hausa and Hadejia Constituency where the 2nd appellant sponsored by the 1st appellant contested the said election, while the respondent also contested the said election on the platform of his party, the Peoples Democratic Party (PDP) along with others.

At the close of the said election, the 1st respondent who scored the highest number of lawful votes was declared and returned the winner of the said election.

The appellants were unhappy with the 1st respondent’s declaration and return as a result they filed a joint petition dated and filed on 22/5/07 containing 21 paragraphs at pages 1 – 33 of the record in which they claimed amongst other things as follows:

“21. WHEREOF, having regards to the foregoing the petitioners pray as follows:-

a. AN ORDER of the Tribunal that the election into the Auyo, Hadejia and Kafin Hausa constituency of the House of Representatives conducted on 21st April, 2007 is invalid for reason of noncompliance with substantial sections of the Electoral Act, 2006.

b. AN ORDER of the Tribunal that the election is invalid for reason of corrupt practices.

c. AN ORDER nullifying the said election for reasons of substantial noncompliance with the Electoral Act and corrupt practices.

IN THE ALTERNATIVE that the 1st Respondent, HUSSEIN NAMADI ABDULKADIR was not validly and duly elected and returned by lawful votes cast in the election held on 21st April, 2007 for Auyo, Hadejia and Kafin HausaFederal Constituency for House of Representatives as required by law.”

As the petition was fought on the pleadings (petition and reply), I consider it appropriate to start by reproducing some of the paragraphs of the pleadings upon which the parties relied in order to determine the nature of the claim and defence before going into the evidence adduced by the parties in determining the appeal.

The appellants as petitioners in their joint petition pleaded in paragraphs 2, 3, 4, 5, 6 and 7 as follows:-

“2. Your petitioners state that the 2nd petitioner is a registered voter and registered member of the 1st petitioner. A copy of the voters card and membership card of the 1st petitioner are annexed hereto as annexure MM1 and MM2 respectively.

3. Your petitioners claim that the election into Auyo, Kafin Hausaand Hadejia Federal Constituency of the House of Representatives held on 21st April, 2007 was vitiated by corrupt practices and non-compliance with the provisions of the Electoral Act 2006 in that the said elections was characterized by electoral malpractices, under-aged voting, multiple voting, ballot box snatching, destruction of ballot boxes and declaration of number of votes cast in excess of the number of registered voters in the various polling units in Auyo, Kafin Hausa and Hadejia Local Government Area of Jigawa State.
4. Apart from non-compliance with the Electoral Act and incidence of corrupt practices as stated in paragraph 3 hereinabove, your petitioners claim that in some polling units in Auyo, Kafin Hausa and Hadejia Local Government (L.G.A.), no voter was registered for the purpose of the general election, yet votes were cast and results were declared in such polling units.
5. Your petitioners state that the election was conducted and concluded amidst such non-compliance with the Electoral Act and corrupt practices as stated in paragraphs 3 and 4 hereinabove and a purported winner – the 1st Respondent, sponsored by the 2nd Respondent was unlawfully returned.
6. The 2nd Respondent, acting for the 1st Respondent conducted the said election on 21st April, 2007 wherein there was electoral malpractices and massive irregularities as stated in paragraphs 5 and 6 hereinabove and unduly returned the 15th Respondent at the said election ascribing scores for the candidates as follows:

i. Mohammed Dankani Isa Auyo (A.C.) 6,151

ii. Galadima Kalgwai (A.P.G.A.) 156

iii. Hon. Jibril Yusuf Babangida (D.P.P.) 1,349

iv. Aminu Muhtar Abus (R.P.N.) 1,928

v. Hussein Namadi Abdulkadir (P.D.P.) 55,687

vi. Mohammed Umaru Mohammed (A.N.P.P.) 30,941

7. GROUNDS RELIED UPON FORTHE PETITION

AND YOUR PETITIONERS state that the ground on which the petitioners rely is:

I. The election into the Auyo, Hadejia and Kafin Hausa constituency of the Federal House of Representatives Jigawa State, which was conducted on 21st April, 2007 was vitiated or invalid by reason of corrupt practices and noncompliance with the provisions of the Electoral Act 2006.”

The 1st and 2nd Respondents’ reply that I consider relevant are paragraphs 3, 4, 5, 7, 9, 10(a), 11, 12, 15 and 15 and are as follows:-

“SAVE AND EXCEPT to the extent hereinafter expressly admitted, the first and second Respondents deny each and every allegation contained in the PETITION as if the same were hereinafter set out paragraph by paragraph and traversed seriatim.

(3) In further answer to the Petitioners’ averments in paragraph 3 of the PETITION, the first and second respondents contend that the election into the Auyo, Kafin Hausa and Hadejia Federal Constituency of the House of Representatives held on the 21st April, 2007 was held in substantial compliance with the provisions of the Electoral Act, 2006, INEC’s Manual/Guidelines and was not characterized by any corrupt practices as same was conducted peacefully, freely and fairly, in virtually all the Polling Units in the Auyo, Kafin Hausa and Hadejia Federal Constituency.

(4) The first and second Respondents aver that they are not aware of under-aged voting, multiple voting, ballot snatching and excess votes over the registered voters in any Polling Units in Auyo, Kafin Hausa and Hadejia Local Government Area during the election to the House Representatives for the Auyo, Kafin Hausa and Hadejia Federal Constituency held on the 21st April, 2007 except for the Polling Units admitted as such thereinafter and the Petitioners at the hearing shall be put to the strictest proof of these allegations as contained in their paragraph 3 of the PETITION.

(5) The first and second Respondents deny of the Petitioners’ contention that there were no registration of voters in some Polling Units in Auyo, Kafin Hausa and Hadejia Federal Constituency where election to the House of Representatives of the Federal Republic of Nigeria were held and results declared. The INEC’s Voters Register concerning the aforesaid Local Governments of the Auyo, Kafin Hausa and Hadejia Federal Constituency are hereby pleaded.

(7) The first and second Respondents in answer to paragraph 5 of the PETITION, aver that the election into the Auyo, Kafin Hausa and Hadejia Federal Constituency held on the 21st April, 2007 was held in substantial compliance with the provisions of the Electoral Act, 2006, and INEC’s Manual/Guidelines and that the first Respondent sponsored by the second Respondent polled the highest or majority of lawful and valid votes and was rightly declared the WINNER of the election.

(9) The first and second Respondents aver in further answer to the paragraph 6 of the PETITION, that the first Respondent was duly declared and returned as the WINNER of the said election having polled the highest or majority of lawful and valid votes, and was issued with the Certificate of Return.

(10) The first and second Respondents deny the averment in paragraph 8(a) of the PETITION, but instead aver that in AUYO VET 002 Polling Unit the number of registered voters was 500 and the results obtained at the election as recorded in the FORM EC8B (2) by the Ward Returning/Collation Officer was 236 votes cast, AUYO DISPENSARY, 006, the registered voters was 500 and the votes cast 286 while in ZABARO PRIMARY SCHOOL, 013 the registered voters was 500 and the votes cast 394, the said FORMSEC8B(2) is hereby pleaded.

10(a) The first and second Respondents deny the averments in paragraph 8 (b) of the PETITION and instead aver that there were registered voters in the following Units in Auyo Ward and results of the votes cast declared as follows:-

(i) Kaziyeta K. Fada Polling Unit 008 Registered voters 334 votes cast 149.

(ii) Tsurutawa Polling Unit 009, Registered voters 283 votes cast 150.

(iii) Hadiyo Primary School Polling Unit 010, Registered voters 399 votes cast 324.

(iv) Makerayi Village Polling Unit 011, Registered voters 281 votes cast 245.

(v) Gidan Dallah Polling Unit 012, Registered voters 320 votes cast 250.

The first and second Respondents plead the voters registers, FORMSEC8A (2) and EC8B (2) in respect of these Polling Units and Ward respectively.

(11) The first and second Respondents deny the allegations as contained in paragraphs 8 and 9 of the Petition and at the hearing, the Petitioners shall be put to the strictest proof thereof, and the first and second Respondents aver that the election into the House of Representatives for the Auyo, Kafin Hausa and Hadejia Federal Constituency was held in substantial compliance with the provisions of the Electoral Act, 2006, INEC’s Manual/Guidelines, in the Polling Units referred to in paragraph 8 and 9 of the Petition, and the results of the election in the aforesaid Polling Units were not affected by any electoral Malpractices and irregularities in the conduct of the election.

(12) In further answer to paragraphs 8(c), (f), (i), (m), (q) and (t) and paragraph 9 of the PETITION, the first and second Respondents Aver that there were no incidences of excess vote over the registered voters and that there were no reported cases of electoral malpractices and irregularities in the Polling Units referred to in paragraph 8 of the Petition.

(15) The first and second Respondents aver that there were voters registers and election to the House of Representatives for the Auyo, Kafin Hausa and Hadejia Federal Constituency held on the 21st April, 2007 without any incidence of violence, electoral malpractices or irregularities in the following Units, in Gafaya Ward and the results of the votes cast declared as follows:-

(a) Primary School Adin Polling Unit 001 Registered voters 492 votes cast 375.

(b) Village Centre/Amada Polling Unit 001 Registered voters 288 votes cast 217.

(c) Village Centre/Azaura Polling Unit 004 Registered voters 216 votes cast 120.

(d) Primary School Bauche Polling Unit 005 Registered voters 283 votes cast 226.

(e) Primary School Z/Kafin Polling Unit 015 Registered voters 180 votes cast 127.

(f) Village Centre! Madawa Polling Unit 016 Registered voters’ votes 149 casts 145.

The first and second Respondents pleads the FORMS EC8A (2) and EC8B (2) and the voters registers relating to the above Polling Units.

(16) The first and second Respondents aver that there were voters’ registers and election to the House of Representatives for the Auyo, Kafin Hausa and Hadejia Federal Constituency held on the 21st April, 2007 without any incidence of violence, electoral malpractices or irregularities in the following Units in Kazalewa Ward and the results of the votes cast declared as follows:

(a) Abdullawa Primary School Polling Unit 001 Registered voters 649 votes cast 371.

(b) Village Centre/Aduwa Polling Unit 002 Registered voters 430 votes cast 276.

(c) Birkidi Primary School Polling Unit 005 Registered voters 345 votes cast 205.

(d) Village Centre/Ganzarawa Polling Unit 006 Registered voters 569 votes cast 316.

(e) Ataru Primary School Polling Unit 004 Registered voters 228 votes cast 48.

(f) Centre Kateko Polling Unit 014 Registered voters 232 votes cast 163.

The first and second Respondents pleads the FORMS EC8A (2) and EC8B (2) and the voter registers relating to the above Polling Units.”

“SAVE AND EXCEPT as hereinafter expressly admitted, the Petitioners deny the averments of facts contained in the 3rd to 131st Respondents’ Reply to the Petitioners’ Petition as though each averments was set out and traversed seriation:

a. The INEC voters register that was up dated as at March 2007 was what was used to conduct elections into the House of Representatives for Auyo, Kafin Hausa and Hadejia Federal Constituency Jigawa State on 21st April, 2007.

b. The said INEC voters’ registers was stored in CD Roms and released to all the Political parties including the 1st Petitioner sometimes in March, 2007 prior to the elections held on 21st April, 2007.

c. The CD Roms that were released to the 1st Petitioner are green in colour with INEC primary voters list 2007, Jigawa State 1 of 2 and 2 of 2, and also the logo of INEC written on them.

d. It was the said INEC voters list or register as reflected on the CD Roms hereinabove described that was used by the 3rd Respondent and its agents, the 4th to 131st Respondents in conducting the elections into the House of Representatives for Auyo, Kafin Hausa and Hadejia Federal Constituency, Jigawa State held on 21st April, 2007.

e. The 2nd Petitioner applied for a copy of the said CD Roms from the 1st Petitioner sometimes in the 1st week of May, 2007 and same was released to him by Ali Ibrahim, the Administrative Secretary of the 1st Petitioner. The Petitioner shall, at the hearing of this petition, rely on the Statement on Oath and or evidence of the said Administrative Secretary of the 1st Petitioner. The said statement on oath is annexed to this reply and marked as Exhibit ‘P1′.”

In compliance with the Election Tribunal and Court Practice Directions 2007, the 1st appellant as 1st petitioner filed his petition accompanied by a list of all the witnesses that petitioner intends to call on the petition and the written statement on oaths of the witnesses. The sworn deposition of the 1st appellant/petitioner is as follows:-

“I, Mohammed Umaru Mohammed, male, adult, Muslim, Nigerian citizen of Hadejia local Government area of Jigawa State do make oath And declare as follows:-

2. That I am a registered voter and voted on the 21st day of April, 2007.
3. That I visited a number of polling units as an observer.
4. That a number of polling units where we have strong hold were starved of ballot papers.

7b. That at Auyo and Kafin Hausa Local Government areas of Jigawa State, I observed that these Local Governments areas, in their wards and polling units, witnessed a high incidence of under-aged voting by children most of whom were not up to 15 years old.

8. That since the conclusion of the election I have at my private time, watched a Visual presentation of the information contained in the CD-ROMS, compiled and issued by the Independent National Electoral Commission to registered political parties (of which All Nigeria Peoples Party (ANPP) is one) during the agitation for a publication and display of the comprehensive voters register.

a. That the CD-ROMS which contain INEC Primary Voters Register compiled in volumes 1 of 2 and 2 of 2, respectively reveal as follows:

i. That more often that not, the result indicate in INEC duplicate FORMS EC8A (1) was in conflict with or far in excess of the total number of voters registered per registration unit thereby resulting in overvoting.

ii. That there was a high incidence of registration of under-aged voters contrary to the Electoral Laws, notably in Auyo and Kafin Hausa Local Government Areas of Jigawa State.

iii. That the most startling thing I observed was that in the 3 Local Governments Areas that make up the Federal Constituency in their wards and the polling units there was a high incidence of ZERO-REGISTRATION or NON-REGISTRATION of voters, yet votes were declared for the various contestants for the House of Representative seat.

iv. The primary voters register also revealed that voters cards were allocated to blank spaces and such votes were actually cast at the election and allocated to contestants. The 2nd – 131st Respondents also registered animals (dogs) and other anomalies, which allegedly voted at the election. There was also multiple registrations.

9. That I received reports from my agents in virtually all the polling centers in my Federal Constituency that these under-aged children were allowed to vote with particular reference to Auyo and Kafin Hausa Local Governments.
10. That after the elections, I had cause to read through most of the forms EC8A (ii) from various polling stations in my Federal Constituency and discovered that the number of votes cast out-numbered the number recorded for the actual persons that registered.
11. That I also discovered in some polling units, the voters register recorded zero turnout, but surprisingly, people voted at the said units.
12. a. I observed that the elections were marred by corrupt practices and malpractices which substantially affected the results of the elections.

b. That I also observed that a lot of irregularities attended the election, especially in the areas of collation and announcement of results. Particularly my Federal Constituency collation was done at Dutse outside the Senatorial zone and announcement made in Kafin Hausa not being the Federal Constituency collation and announcement center.

c. I know as a fact that the said results was riddled with arithmetical errors and conclusions in the figures ascribed to the petitioner and 1st Respondent by the 2nd – 131st Respondents resulting in undue return of the 1st Respondent.

13. That I won the election by majority of lawful votes cast.”

At the hearing only the 1st petitioner testified by adopting his sworn deposition while three witnesses testified for the 1st and 2nd respondents. The 1st appellant/petitioner testified at pages 294 – 313 of the record while 1st and 2nd Respondents’ three witnesses testified at pages 314 – 322, of the record.

At the conclusion of hearing after considering all the issues raised, the Tribunal at pages 415 – 417 held:-

“First, on the allegation of over-voting. The Electoral Act 2006 in Section 54(1) and (2) states that over-voting comprises of multiple voting by a voter and the votes cast at a polling station exceeding the registered voters in the polling station. It provides that where this situation exists, the election for that polling station shall be declared null and void. It follows that for over-voting to be proved, the Voters Registers in respect of the polling stations complained of have to be produced in evidence to enable a comparison of the registered voters to be made with the total votes cast at the said polling stations, to determine if there was any over-voting. See the case of Awuse v. Odili (2005) 16 NWLR (Part 952) 416 at 491. The petitioners have not addressed our minds to any particular polling stations where there was over-voting. We have ourselves looked at the Voters Registers tendered and admitted as exhibits 4, 5, 6 and 7 and the results sheets-Exhibits 1A, 1B and 1C. We are unable to see where there was a case of over-voting. We hold that the allegation has not been made out.

On the allegation of under-aged persons or under-aged registered voters voting at the election, the 2nd petitioner gave evidence that he personally saw under-aged voters casting their votes. He stated that he was able to determine their age by their physical appearance. This is the only evidence of age adduced by the petitioners to ground the allegation. The question may be asked whether this is a sufficient proof of a person’s age? We do not think so. The case of Akpan v. State (2000) 3 NWLR (Part 649) 498 has settled the mode of proof of a person’s age – i.e. Production of birth certificate; direct evidence of date of birth by parents or person present at the birth; Medical Certificate of birth; or court’s presumed age. This is not the case in the instant petition. The names of the alleged under-aged voters are not indicated and moreover, in the Voters Registers produced in evidence, none of the registered voters is indicated to be below 18 years of age. We hold that this allegation too has not been established.

The next allegation is that elections were not held in certain polling stations yet results were declared. The affected polling stations are mentioned in Paragraph 8 of the Amended Petition. However, a summary of the results was produced in evidence as exhibits 1A, 1B and 1C showing the Results in these polling stations. By virtue of Sections 116, 149(c) and 150(1) of the Evidence Act, there is a presumption that the result declared by the 3rd respondent is correct. The burden is on the petitioners to rebut same. The case of Cletus Mbia Obun v. Alex Abang Ebu and 31 Ors (2006) All FWLR (Part 327) 419 at 443 settles the issue beyond any per adventure. Omokri, JCA stated thus:

“Furthermore, when a result is produced as having been votes scored in an election Petition, it is the duty of the petitioner, who alleges there was no election or non-voting or that the votes cast were allocated, to prove the falsity of the results produced.”

The Petitioners have not proffered any evidence in rebuttal to that of the respondents on this allegation and thus cannot be said to have proved same.

On the allegation that there were no registered voters in some polling units in which results were declared, the law is settled that he who assert must prove. Exhibit 4 were the Voters Registers tendered in this respect. It was tendered by the petitioners themselves. There is absolutely no evidence to support the assertion that there was no registration of voters in the polling stations mentioned in Paragraph 8 of the Amended Petition. The allegation has thus not been proved.”

At pages 419 -420 of the record the Tribunal concluded as follows:-

“On the whole, we hold that the petitioners have failed to prove that the Election was not conducted substantially in accordance with the principles of the Electoral Act 2006 or that any non-compliance affected substantially the result of the election as required by Section 146(1) of that Act. We therefore see no basis to invalidate the election held on the 21st April, 2007 into the House of Representatives for the Auyo, Kafin Hausa and Hadejia Federal Constituency of Jigawa State. The Petition fails and is accordingly dismissed for lack of merit. Consequently, we affirm the election, declaration and return of the 1st respondent, HUSSEIN NAMADI ABDULKADIR.”

Dissatisfied with the judgment of the Tribunal, the petitioners appealed to this Court by their notice of appeal dated 24/9/07 filed on 25/9/07 containing eight grounds of appeal at pages 426 – 431 of the record.

Briefs of argument were filed and exchanged between the parties in accordance with Rules of Practice Directions, 2007.

At the hearing of the appeal which came up on 20/5/08, counsel to the parties adopted their respective briefs.

In the appellants’ brief dated the 17th day of October, 2007, filed on the 19th day of October, 2007, five issues were distilled for the determination of this appeal, by the learned counsel for the appellants, A.I. Omachi, Esq at pages 5 – 6 of the appellants’ brief as follows:-

“1. Whether the Court of Appeal decision in Lawson vs. Afani Continental Company Limited (2002) FWLR (pt. 109) 1736 that the original of a public document is inadmissible remains the law when the Supreme Court in Ajao v. Ambrose Family & Ors. (1969) 1 NMLR 25 at 30 and Anatogu & Ors v. Iweka II & ors. (1995) 8 NWLR (pt.415) 547 at 572 had held that the content of a public document may be proved either by primary or secondary evidence. (Ground 1).

2. Whether the original of a public document needs to be certified to render same admissible under section 111(1) of the Evidence Act. (Ground 2 & 3).
3. Whether a document admissible on fulfillment of a condition precedent, where rejected for failure to comply with such condition precedent, cannot be re-tendered, and whether same can be marked “rejected”. (Ground 4 & 5).
4. Whether the Election Petition Tribunal was right in striking out the petition due to the non inclusion of the score of one of the candidates in the election when the Respondents had taken severing steps in proceedings after discovering the alleged defect. (Ground 6).
5. Whether the Electoral Act 2006 (as amended) contemplates the use of several voters registers i.e. preliminary voters register, manual voters register and electronic voters register for the conduct of elections. (Ground 7).”

The 1st and 2nd respondents did not help matters by simply adopting all the issues formulated by the appellants.

It appears to me that issues numbers 1, 2 and 3 relate to the rulings rejecting the CD ROMS by the Tribunal in its rulings dated 3/8/2007 and 6/8/07 respectively contained at pages 297 and 305 respectively of the record. In effect, the three issues relate to an interlocutory decision. There is no provision for an interlocutory appeal in the Election Petition and there is nothing to show that the leave of this Court was sought for and obtained to appeal against the said ruling in the main appeal. Issue No. 4 is not related at all to this appeal because in this appeal, the petition was not struck out for being incompetent on ground of failure to state scores but heard on its merit and judgment delivered at pages 387 – 421 of the record. While issue No.5 with the greatest respects to the learned counsel for the appellants is not relevant in this appeal as it appears academic and not attacking the judgment appealed against. It is for these reasons that I have decided to frame a sole issue for the determination of this appeal. The issue is as follows:-

“(1) Whether or not the judgment of the Tribunal dismissing the petition can be sustained, having regard to the evidence adduced by the appellants/petitioners?”

It is now settled that brief writing has become part of the procedural law of the appellate courts in Nigeria. The form and other modalities that a good brief should have has been laid down in numerous judicial decisions. To that end, it has been clearly stated that the purpose of a brief is to present a summary of party’s case on appeal in an accurate and lucid form. It is expected to be in a form that will present the party’s case in succinct and clear form and contained a condensed statement of the proposition of law or facts or both which a party or his counsel wishes to establish at the hearing of the appeal together with the reasons for making the proposition and authorities relied on to sustain them. See U.B.A. PLC V. OGUNSANYA (2003) 8 NWLR (PT.821) 111at 123 -124.

It is the law that parties are bound by their briefs. See OKPALA v. OKPU (2003) 5 NWLR (PT.812) 183 at 212.

It is unfortunate to say that in this appeal, apart from the fact that both briefs are inelegant, the issue and the submissions are also irrelevant and not quite related to the decision appealed against.

Since it is the law that a bad brief is still a brief, I have no option than to determine the appeal on the sole issue formulated by me without having the advantage of the assistance of both counsel on the issue formulated by me because of the defects mentioned on the issues formulated by the appellants and simply adopted by the respondents.

A civil case or an election petition is won on the preponderance of evidence of the plaintiff/petitioner but where the Court of Appeal is convinced that the case of the appellant is deficient in substance or mixed in confusion and not readily understandable, it cannot assist the appellant. See ANSA V. ISHIE (2005) 15 NWLR (PT.948) 210 at 225.

In the instant appeal, although the appellant indicated his intention to call three witnesses, he ended up testifying for himself alone while three witnesses testified for the 1st and 2nd respondents. As can be seen from the 1st appellants’ sworn deposition reproduced herein general allegations were made which were not substantiated by evidence as no documentary evidence was attached to the sworn deposition. On cross examination at pages 306 – 307 of the records, the proceedings read as follows:

“Cross-examination:

P.W.1- The party appointed all the party agents not me. I don’t know all the party agents that represented my party. I cannot really say those of us that contested because some withdrew on the date of the elections. To my knowledge I know of the DPP candidate. He is Hon. Babangida

Jibrin Yusuf. It was the night before the election that he said he was not contesting. I am popular in Hadejia Local Government and Auyo Local Government. I did not complain about under aged voters because I do not know until the date of the elections.

I physically saw them. None of them is my relation. My impression is the physical viewing of the voters. I do know Ayukayi ward. It is the only Local Government with that name. I registered

At Rijin Donkoli polling Unit ward in Hadejia Local Government Area. I did not visit all the Units in the ward. All the reports are what I was told by my agents. The only figures of Elections are the ones that I have.

In all the units I visited I found voting going on except at Sarawa in Kafin Hausa when I got there voting had ended. My agents none told me that he signed a form complaining of under aged voting but in some units I objected. Apart from verbally, I now wrote any complaint about under aged voting. My business address is at Kaduna. My wife is at Kaduna. I don’t have children. I did not attend any school in Hadejia. Hadejia is ANPP. I hold a degree in Engineering from Kings College London.

Mr. Egwuatu:- I have been in Nigeria after my schooling since 1996. I now reside at Kaduna. At the time of the Elections I was residing at Hadejia even prior to the Elections. I said I saw under aged voters of about 15 years from mere seeing. I can’t say exactly the figures but I do know that I won.

Re-Examination:- None.”

(underline mine)

Having examined the entire record and taking into consideration the evidence of the parties, I am in full agreement with the Tribunal that the appellants as the petitioners did not prove their case on the balance of probabilities to warrant judgment being given in their favour.

It should be noted that it is not right or proper for an election to be set aside on a mere allegation.

For an election to be set aside for over-voting, voting by under-aged there must be credible evidence. Even where non-compliance with the Electoral Act is alleged, the non-compliance must have substantially affected the results of the election to justify the nullification of the election.

No cogent reason has been shown in this appeal to warrant granting the relief sought by the appellants to set aside the judgment of the Tribunal and for ordering a retrial of the petition as requested by the appellants.

In the result, I hold that this appeal lacks merit and is hereby dismissed. The judgment of the National Assembly Election Petition Tribunal holding at Dutse, Jigawa State delivered on 6/9/2007, is hereby affirmed by me with costs assessed at N30, 000.00 in favour of the 1st respondent.

There is also a cross-appeal, seeking to strike out some paragraphs in which the necessary and proper parties have not been joined in the petition. Having dismissed the appeal, there is nothing left for determination in the petition.

The cross-appeal is also hereby struck out.

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Other Citations: (2008)LCN/2884(CA)