Hon. Sani Mohammed Iliyasu & Anor V. Dr. Shehu Usman Adamu & Ors (2008)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

On the 14th day of April, 2007, general election was held throughout the country into the various States Legislative House.

The 1st appellant who was the respondent before the Tribunal contested the election into the Kaduna State House of Assembly seat for Maigana Constituency on the platform of the Peoples Democratic Party (PDP), the 2nd appellant/respondent. The 1st respondent who was the petitioner before the Tribunal also contested the election under the platform of the All Nigeria Peoples Party (ANPP), the 2nd respondent/petitioner.

At the end of the said election the 1st appellant was declared the winner having scored 22,844 votes as against 20,350 votes scored by the 1st respondent. The 1st and 2nd respondents being dissatisfied filed a petition before the Kaduna State Election Tribunal, dated the 11th day of May, 2007 filed on 14th day of May, 2007 containing ten paragraphs at pages 1 – 10 of the record and claimed as follows:

“WHEREOF, the petitioner urged the Tribunal to determine, declare and order as follows:

(1) That the 1st respondent was not duly elected by a majority of lawful votes.

(2) That the petitioner be declared the validly elected having polled the highest number of lawful votes cast at the election.

(3) Alternatively that the election in Maigana Ward of Maigana Constituency in relation to the slat sought by the Petitioner be declared invalided as a result of corrupt practices and other irregularities perpetuated thereat contrary to the Electoral Act 2006.

(4) An Order directing that fresh election is conducted in the said Maigana Ward.

OR

The entire election in Maigana constituency is declared void and a recontest ordered by this court among the contestants without the 1st and 2nd Respondents.”

The appellants as respondents filed a reply to the petition dated the 5th day of June, 2007 contained at pages 159 – 163 of the record, containing 21 paragraphs. The 3rd – 17th respondents also filed a joint reply to the petition dated 7/6/2007 at pages 168 – 171 of the record, containing 14 paragraphs.

Thereafter, hearing of the petition commenced and concluded. Judgment was delivered on 25/10/2007, nullifying the election and return of the 1st appellant/ respondent as the member of the Kaduna State House of Assembly and instead, declared the petitioner now 1st respondent as the duly elected member of the Kaduna State House of Assembly at pages 342 – 564 of the record.

The Tribunal concluded its judgment at page 5 363 – 364 as follows:-

“Consequently, without any hesitation we hold that the 1st Petitioner Dr. Shehu Usman Adamu having scored the majority of lawful votes cast at the election is hereby declared as the duly elected member of the Kaduna State House of Assembly Maigana Constituency.

Accordingly, the election of the 1st Respondent Sani Mohammed Iliyasu into the Kaduna State Houseof Assembly, Maigana Constituency is hereby nullified.”

The appellants being dissatisfied with the decision of the Tribunal have by notice of appeal dated and filed on the 12th day of November, 2007 appealed to this Court contained at pages 366 – 376 containing eleven grounds of appeal.

Briefs were subsequently filed and exchanged between the parties in accordance with the Rules of Practice Directions. The appellant’s brief dated and filed on 29/11/07, 1st and 2nd respondents brief dated 15/1/08 deemed filed on 16/1/08 by order of this Court granted on 27/2/08 and the appellant’s reply brief dated and filed on 28/1/08. The 3rd – 20th Respondents did not file a brief at all.

At the hearing of the appeal on the 25th day of March, 2008, learned counsel for the appellants, O.I. Habeeb, Esq, for the appellants, adopted the appellant’s brief of argument. J.B. Daudu, SAN, for the 1st and 2nd respondents also adopted the 1st and 2nd respondents’ brief.

In the appellants’ brief four issues were distilled for determination in this appeal as follows:

“1. Whether having regard to the state of pleadings of the parties and the evidence led, the findings of the Tribunal that scores in Exhibits A1, B1, C1, D1, and F1 were altered and that unlawful votes were added to the votes of the appellants are NOT with respect perverse.

2. Whether the 1st and 2nd Respondents led credible evidence on the allegation of non-conduct of election in Codes 002 and 009 of Gimba Ward and Codes 001 and 004 of Maigana Ward to justify the findings of the Tribunal that elections did not hold in those Polling Units.
3. Whether the Tribunal was right and justified in law in holding that the 1st and 2nd Respondents have rebutted the presumption of the authenticity of the results declared in favour of the Appellants by INEC.
4. Whether the Tribunal carried out a proper evaluation of the entire evidence led in reaching its conclusion and findings of facts in favour of the evidence of the 1st and 2nd Respondents and attachment of more weight to them.”

The learned silk for the 1st and 2nd respondents on the other hand formulated only one issue as follows:-

“Whether the trial Tribunal could be faulted when it came to the conclusion that the 1st and 2nd respondents won the election to the Maigana Constituency House of Assembly Kaduna State seat by a majority of lawful votes?” (Sole Issue)

The 3rd respondent did not file any brief in this appeal hence the question of formulating issues by the 3rd respondent does not arise at all.

On the appellants issue No.1, whether having regard to the state of pleadings of the parties and the evidence led, the findings of the Tribunal that scores on Exhibits A1, B1, C1, D1 and F1 were altered and that unlawful votes were indeed added to the votes of the appellants, are not perverse, learned counsel for the appellants’ first referred to the pleadings, particularly paragraph 10(A) (1 – 4) and paragraphs 4 – 16 of the petition as well as the reply respectively. He stated that evidence of the 1st and 2nd respondents is germane to issue NO.1 at pages 26 of the printed record. Reference was also made to Exhibits A, B, C, D and F being referred to as duplicates results from polling units obtained by the agents of the respondents as well as Exhibits A1, B1, C1, D1 and F1, being the original copies of the disputed polling units produced by INEC under subpoena. It is contended that from the pleadings of the 1st and 2nd respondents that their complaint was that the results from the respective polling units were altered at the Ward Collation Centres as manifested in Form EC8B(1) being result sheet for the ward collation centres.

According to the appellants’ counsel the complaint of the 1st and 2nd respondents as contained in their petition, it is alleged that there were alterations of scores at Gimba and Maigana ward by the Returning Officers at the ward level and not that the alteration were allegedly done at the Polling Units. It is argued that consequently, the findings of the Tribunal that the 1st and 2nd respondents have successfully proved the allegations of alteration of scores is not supported by the evidence having regard to the pleadings. It is submitted that contrary to the findings of the Tribunal that there are unexplained glaring alterations of the scores in Exhibits A1, B1, C1, D1 and F1 in favour of the appellants, an examination of the said Exhibits shows that there are no such alterations.

It is further contended that the two set of Exhibits namely Exhibits A, B, C, D and F and A1, B1, C1, D1 and F1 do not bear the same serial numbers as shown at page 5 of the appellants’ brief.

Relying on the authority of IROLO V. UKA (2002) 14 NWLR (PT.786) 195 at 238 paras D – E; STATE V. AJIE (2000) NWLR (PT. 78) 434 at 449, learned counsel for the appellants submitted that the Rulings of the Tribunal was perverse and has occasioned a miscarriage of justice.

According to the learned counsel for the appellants the 1st and 2nd respondents have to prove the allegations and the proper order ought to be a dismissal of the 1st and 2nd respondent’s case. See SULAIMAN A. OGUNDIPE V. ISREAL ADISA OGUNDIPE & ORS. (1992) 9 NWLR (PT.263) at 35.

Concluding his submission on issue 1, learned counsel urged us to answer the first issue in the affirmative.

It is the submission of the learned counsel for the appellants on issue two that there is no credible evidence before the Tribunal to justify the findings that election did not hold in the affected mentioned polling units. See NNAJI V. AGBO (2006) ALL FWLR (PT.305) 736 at 757 – 758 and ONOYOM V. EGARE (1999) 5 NWLR (PT.603) 416 at 425. It is argued by the learned counsel for the appellants, relying on the authorities cited above, that the 1st and 2nd respondents failed to prove the allegations of the non-conduct of election in the said affected polling units by their failure to call voters with registered voters card in relation to the said polling units to give evidence. See also AYOGU V. NNAMANI (2006) 8 NWLR (PT.981) 160 at 187.

It is contended that in the instant appeal the 1st and 2nd respondents did not prove the allegations of non-conduct of election in the affected polling units to warrant the shifting of the burden to the appellants. He stated that the appellants all the same tendered Exhibits K, K1, K2, K3 and K4 respectively to show that election took place in the affected polling units.

Learned counsel for the appellants in his conclusion of his submission on issue No.2, urged the Court to resolve the issue in the negative in favour of the appellants against the 1st and 2nd respondents.

On issue No.3, learned counsel for the appellants conceded that the scores reflected in the two sets of results, tendered by the 1st and 2nd respondents, Exhibits A, B, C, D and F, polling units results are results obtained by 1st and 2nd respondents and Exhibits A1, B1, C1, D1, and F1 are the polling units results produced and tendered through INEC, the 3rd respondent are different but contended that the 1st and 2nd respondents did not make any attempt to challenge the genuineness of the scores in the INEC original result list in Exhibits A1, B1, C1, D1 and F1. Reference was made to the cases of ATIKPEKPE V. JOE (1999) 6 NWLR (PT.607) 428 at 422 and OMOBORIOWO V. AJASIN (1984) 1 S.C.N.L.R. 108; JALINGO V. NYAME (1992) 3 NWLR (PT.231) 538 at 546.

Furthermore, learned counsel for the appellants submitted that the allegation of alteration of collated result is an allegation of crime which by law must be proved beyond reasonable doubt and that the 1st and 2nd respondents have not discharged the burden in rebutting the presumption of the correctness of the INEC results tendered. He urged the Court to resolve the issue in favour of the appellants.

Relying on the authority of FINEBONE V. BROWN (1994) 4 NWLR (PT.600) 613 at 617, on issue No.4, learned counsel for the appellants submitted that no weight ought to have been placed on the allegation of alteration of results of Exhibits A, B, C, D and F tendered in evidence by the 1st and 2nd respondents/petitioners because of the difference in the serial numbers. That although the trial court has the prerogative of the evaluation of evidence, in this case, the Tribunal, as well as the ascription of probative value, this Court has the power to intervene where the findings of the Tribunal is perverse. See AD V. FAYOSE (2005) 10 NWLR (PT.932) 15 at 235 paras A-B.

In conclusion, learned counsel for the appellants also urged us to resolve the issue in favour of the appellants and allow the appeal.

In response to the submission of the learned counsel for the appellants, J.B. Daudu, Learned silk, for the 1st and 2nd respondents stated that the appellants contended throughout their case, that the petitioners (1st and 2nd respondents) hinged their case on ‘alterations’ and or falsification of results by collating officers, which in their belief raised issues amounting to the commission of a crime therefore susceptible to a high standard of proof that is proof beyond reasonable doubt. It was also submitted by the appellants that the petitioners/1st and 2nd respondents, did not discharge the said standard and referred to page 19 of the appellants’ brief of argument.

Learned silk for the 1st and 2nd respondents, submitted that notwithstanding the inelegancies in the drafting of the petition, the sole complaint of the petitioners (1st and 2nd respondents) was that he won the disputed election by a majority of lawful votes. See paragraph (f) at page 8 of the printed record. He referred to paragraph “B” of the petition which he said is relevant as it is the paragraph that complains about the conduct of the Maigana ward returning officer. That of all the sub-paragraphs to “B” only paragraph (e) accuses the latter of falsification of results in Code 001, 002, 005, 008 and 012 polling units. It is submitted that in law there is an established distinction between ‘falsification’ simpliciter and criminal falsification. Pointing out that in this instance, it is submitted that only a simple allegation of falsification was made which in effect means that if all the unlawful votes are removed and the lawful votes are added to the scores of all the candidates, then, the 1st respondent ought to have won by a majority of lawful votes, placing reliance on the Supreme Court case of OMOBORIOWO V. AJASIN (1984) 1 S.C.N.L.R. 108 at 149, 150.

He stated that in the five (5) Exhibits pleaded, mentioned above and for which the petitioners called witnesses to show that voting took place and that the results were declared in Exhibits A, B, C, D and F, but for the results declare at the collation centre to differ from that announced at the Polling Units. It is further submitted that the venue of juggling or substitution of the lawful votes with unlawful ones is irrelevant because the primary evidence of the result of the elections are Form EC8A. See NWOBODO V. ONOH (1984) S.C.N.L.R. 1 at 35; INEC V. RAY (2005) ALL FWLR (PT.265) 1047 at 1078 and Section 64 (1)-4 of the Electoral Act, 2006.

Relying on the authorities cited, learned silk for the 1st and 2nd respondents, submitted that the trial Tribunal had all the materials needed in the relevant form EC8A’s and the evidence of the witnesses to determine which of the candidate won the election, including the viva voce evidence of all the witnesses and the said Form EC8A’s already admitted in evidence. Pointing out that it was submitted on behalf of the appellants at paragraph 5.1 of the appellants’ brief that Exhibits A, B, C, D and Fare not duplicates of Exhibits A1, B1, C1, D1 and F1, because the two sets do not bear the same serial number. It was also contended that the EC8A’s are of no moment as the alteration was alleged to have taken place at the collation centre hence the conclusion of the Tribunal on this point was perverse and ought to be set aside.

It is further submitted that it is settled law, since NWOBODO at page 29/30 that the documents in question being copies given by INEC, representatives to the respondents agents are not only relevant and admissible but also legitimate to treat them as primary evidence under Section 93 of the Evidence Act.

Consequently Exhibits A – F are known in law as duplicate original. It is stressed that each copy of the result given to respective party agents, no matter the number are originals of them. That as a result both Exhibits A – F series and A1 – F1 series are all primary evidence and therefore originals as rightly held by the Tribunal, which the appellants contended to be perverse. He further argued that the basis of election result in Nigeria, relying on NWOBODO (supra) are the exhibits EC8A- results of election at the polling units and the 1st and 2nd respondents did the right thing by relying on not only the viva voce evidence but the results given by the Presiding Officers, of those polling units to the respondents’ polling agents. Learned silk for the 1st and 2nd respondents emphasised that the petitioner’s 1st and 2nd respondents complied with the requirements of proof of an allegation that a party did not win an election by a majority of lawful votes as enunciated in the case of SEIKEGBA V. PEWAWOU (1999) 9 NWLR (PT.618) 354 at 364.

Reference was made to pages 267 – 271 of the printed record by the learned silk who stated that the issue of the serial number and signature of the witnesses was never raised by the learned counsel for the appellants and argued that the appellants were wrong in claiming that the A1 – F1 series were signed by the 1st and 2nd respondents’ agents/witnesses. That it is in fact a fresh issue which was never raised at the Tribunal, which cannot be raised on appeal. He also pointed out that the learned counsel for the appellants did not cross-examine the witness on the issue of signature during the hearing at the Tribunal. See ABUUL & ORS. V. BENUE STATE UNIVERSITY (2003) 16NWLR (PT.845) 59 at 86 paragraph A – Band AGBO V. STATE (2006) 6 NWLR 8 (PT.977) 544 at 560/570.

In reply to the complaint of the appellants in respect of the difference in serial numbers of the respective Forms EC8A, learned silk pointed out that all the said forms emanated from INEC and that while A.N.P.P. produced and tendered their own, the appellants who were equally issued with the same forms never produced or tendered same at the hearing but only chose to rely on the ones tendered by INEC, the purported original and he referred and relied on Section 149(d) of the Evidence Act in support of his submission of the failure of the appellants to tender their own copy of the forms issued to him by INEC. See OLUFOSOYE V. FAKOREDE (1993) 1 NWLR (PT.272) 747. He drew the attention of the court to the fact that in the instant appeal, the appellants did not lead any evidence at all or tendered any document in support of their case but merely relied on the INEC’S result tendered by the petitioner (1st and 2nd respondents), in effect they rested their case on the petitioners case. See AJADI V. AJIBOLA (2004) 16 NWLR (PT.898) 91 at 164.

On the issue of non holding of election in some polling units with code numbers 002, 009 in Gimba Ward and code 001 and 004 of Maigana Ward, reference was to the evidence of PW5, PW6, PW7, PW8 and PW9 called as witnesses by the 1st and 2nd respondents as petitioners but the appellants did not challenge their evidence at the hearing.

It is also the submission of the learned silk for the 1st and 2nd respondents that since the Tribunal accepted the evidence of the 5 witnesses in respect of the non holding of the election in some polling units as a result the Tribunal cancelled the result in Exhibits K – K4 as they were improperly procured, consequently the findings of the Tribunal should not be disturbed. It is argued that all the authorities cited by the learned counsel for the appellants regarding the non-holding of the election as a result of man made eventuality such as violence, unlawful conduct of presiding officers, fracas etc which led to the cessation of voting in the mentioned polling stations are inapplicable. He further stated that in view of the unchallenged evidence of malpractices such as misbehaviour by INEC officials, thuggery and other interruptive actions, the only fair conclusion to arrive at was that election did not hold at those polling units and the Tribunal was right in rejecting the votes from these polling units based on the evidence adduced before it by the petitioners (1st and 2nd respondents). See NA-GAMBI V. INEC (1993) 1 NWLR (PT.267) 94, IZUOGU V. UOENWA (1999) 6 NWLR (PT.608) 582 and AJADI V. AJIBOLA (2004) 16 NWLR (PT.898) 91 at 171.

Relying on the authority of LAWAN V. YAMA (2004) 9 NWLR (PT.877) 117 at 137, it is submitted for the 1st and 2nd respondents that evidence that is not controverted or discredited by the opposing party is good and credible evidence which is reliable and can be acted upon by the court or Tribunal.

In conclusion, learned silk submitted that the Tribunal was right in its decision based on the evidence adduced by the 1st and 2nd respondents as petitioners and urged the Court to resolve the sole issue formulated by the 1st and 2nd respondents in favour of the 1st and 2nd respondents.

According to the learned leading counsel for the appellants, O.I. Habeeb, in the appellants’ reply brief with particular reference to paragraphs A(ii), (iii), (iv); paragraph B(a) – (e); paragraph C(iii), (iv) and (vi) of the petition, allegation of crime was made which ought to be proved beyond reasonable doubt.

See HASHIDU V. GOJE (2003) 15 NWLR (PT.843) 352 – 386; OJI V. ODU (1993) 1 NWLR (PT.268) 235 at 243 and AUDU V. OSUNDE (2003) 6 NWLR (PT.847) 643 at 688.

He referred to paragraph 17 at page 13 of the 1st and 2nd respondents’ brief on the issue of the venue of the alleged juggling and substitution of the lawful votes with the unlawful ones which the 1st and 2nd respondents submitted that it was irrelevant and referred to the case of SALAWU AJIDE V. KADIRI KELANI (1985) 3 NWLR (PT.12) 248, (1985) NSCC VOL.16 page 1316, in support of his contention that the Tribunal made a case for the 1st and 2nd respondents different from that of the 1st and 2nd respondents as contained in the pleadings and that the Tribunal relied on two sets of Exhibits that are contradictory and citing several authorities in support contained at pages 4 – 8 of the reply brief. He again urged this Court to allow the appeal.

After a careful examination of the Issues formulated by both the learned counsel for the appellants and the 1st and 2nd respondents, I am of the view that the main issue raised in all the issues for determination in this appeal relates to evidence – credibility of the evidence and the justification of the findings of fact by the Tribunal. It appears to me that all the four issues distilled by the appellants have conveniently been rolled into one issue by the 1st and 2nd respondents’ senior counsel. It is for this reason, that I adopt the said issue which is all encompassing and sufficient for the determination of this appeal.

Since a lot of reliance is placed by both counsel on the pleadings, (petition and reply) and the evidence adduced, it is pertinent to start the determination of the sole issue by reproducing the relevant paragraphs of both the petition and the reply. The relevant paragraphs relied upon by the petitioner/1st and 2nd respondents, are as follows:-

“2. Your 1st Petitioner Alh. Shehu Usman Adamu was a candidate and is a person who voted at the 14th April, 2007 Election to the Kaduna State House of Assembly – Maigana Constituency and is a person who should have been declared winner by reason of the non qualification of the 1st Respondent and also by reason of malpractices and therefore has the right to present this petition.

3. Your 2nd Petitioner, ALL NIGERIAN PEOPLES PARTY (ANPP) is a registered political party which participated in the aforementioned election and sponsored the 1st Petitioner and therefore interested in the outcome of the election and competent to bring this petition.
4. The 1st Respondent, Hon. Mohammed Sani Iliyasu was a candidate at the Election sponsored by 2nd Respondent, Peoples Democratic Party (PDP).
5. The 2nd Respondent, the Peoples Democratic Party (PDP) is a registered Political Party which participated in the 14th April 2007 elections to the Kaduna State House of Assembly for the Maigana Constituency and sponsored the 1st Respondent at the said election.
6. The 3rd Respondent was responsible for the organization, conduct and supervision of the election in issue while the 4th – 16th Respondents are Staff/Officer/ Agents/Representative of the 3rd Respondents who participated in the conduct of the Kaduna State House of Assembly Election on 14th April 2007.

SCORES OF THE CANDIDATES

8. The scores declared on the 15/4/2007 are as follows:

NAME PARTY SCORES

Mustapha Ahmed AC 3294

Dr. Shehu Usman Adamu ANPP 20,350

Hon. Sani Muhammed PDP 22,844

Bello Umar PRP 39

WINNER OF THE ELECTION

9. At the close of the Election the 4th Respondent who was the Returning Officer for the Maigana Constituency declared the 1st Respondent, Hon. Sani Mohammed Iliyasu of the PDP as winner of the Election and returned him as duly elected.

GROUNDS OF THE ELECTION

10. An your Petitioner states that the grounds upon which the petition is presented are as follows:

A. IRREGULARITIES, CORRUPT PRACTICES AND NONCOMPLIANCE WITH THE ELECTORAL LAW

These were widespread electoral malpractices; massive manipulation and inflation of figures in the results declared; box snatching and massive thumb printing of ballot papers without due regard to proper accreditation and due Electoral processes in the Maigana and Gimba Wards of the Constituency during the elections.

PARTICULARS

A. Maigana Ward

i. At Unguwar Dallatu Polling center (code 001) there was no election at the polling center at all for both house of Assembly and the Governorship Elections due to misunderstandings which resulted in the destruction of all election materials. However, scores were manufactured for the Assembly elections as follows: AC 0, ANPP 20, and PDP 701. This is evident in the result sheet of the Governorship election which shows no scores for any of the gubernatorial candidates. This is pleaded and shall be relied upon at the hearing. Furthermore, the twenty (20) votes allotted to ANPP was not reflected in the sum Total of the Result for ANPP in Maigana ward, while the Total for PDP was altered to include the 701 votes Notice is hereby Given to the third respondent to produce the Governorship election result returned sheet of Maigana Ward from the Maigana collation center.

ii. In Anguwan Fulani polling unit (code 002), the results scored by the parties as recorded by the presiding officer are: ANPP= 25; PDP= 20; PRP= 0; AC = 7 But the result of this polling unit was changed to ANPP= 25 PDP= 420 PRP= 2 AC = 7.

iii. Similarly in Dauda/ Kadage polling unit (code 005) the scores were altered in favour of PDP. The total scores at the polls were ANPP= 19 PDP= 17 AC = 6 But the scores were changed to ANPP= 19 PDP= 417 AC = 6.

iii. In UPE Maigana polling unit Code 004, there were no elections in the Satellite Unit which has 500 ballot papers, therefore, the results of the unit should not be more than 500. In the returned sheet, a total of 878 were scored by the Parties.

iv. In Anguwan Waziri (code 012) PDP the Parties scored as follows: PDP = 127 ANPP= 162 and AC = 52. But at the collation center of the ward, the Results were turned in favour of the PDP as follows: ANPP = 163 PDP= 327 AC = 52 the petitioner pleads the forms EC8A (i) of all polling station under reference including the ward collation result sheet and shall rely on the Duplicate copies in their possession.

The 3rd Respondent is hereby put on notice to produce the original copies in their possession.

B. That the INEC Returning Officer of the Maigana Ward of the Maigana State Assembly constituency election is a card carrying member of the Peoples Democratic Party (PDP) who worked solely to turn the result in favour of the PDP at the collation center.

Peoples Democratic Party (PDP) who worked solely to turn the result in favour of the PDP at the collation center.(sic)

PARTICUALARS

a. The INEC Ward Returning Officer is a member of the Peoples Democratic Party (PDP) who seeks to contest election for the position of Local Government Chairman in the Soba Local Government Area of Kaduna State.

b. That the Returning Officer – Abdullahi Musa Ibrahim conducted himself in such a way that he worked entirely for the success of his Party – the PDP.

c. That he is contesting election under the platform of the PDP for the office of Chairman during the June 23 Local Government Elections. The Petitioner shall found on documents including his campaign posters sticker and any other documents to establish his membership of the PDP.

d. That the Returning Officer’s actions and conduct affected substantially the result of the Maigana ward Election; so the entire results ought to be cancelled.

e. That he falsified the results in code 001, 002, 005, 008, 12, units.

C. GIMBA WARD

In Gimba Ward the Election was characterized by massive electoral fraud, alteration of result, ballot bag seizures and massive thumb printing which affected the results of the election in the entire ward.

PARTICULARS

a. In Anguwan Kanawa (code 002), there was arguments and the ballot box was taken to the police station.

i. That the Presiding Officer was so overwhelmed with the action that he declared the Election closed, counted the votes as follows ANPP 37, PDP 15 AAC 0 PRP 0.

ii. That it was therefore a shock to the petitioner that results were declared by the Returning Officer of the Ward who allotted scores as follows: PDP= 430 ANPP= 30 AC = 5

iii. In Unguwan Sarkin Lawur (005) election were conducted peacefully till the close of polls. The scores were ANPP= 200 PDP= 54 and AC= 57. But the ward collation officer altered the scores in favour of the PDP by recording ANPP= 20 PDP= 295 AC = 2.

iv. Similarly in Ang. Gora (Code 007) polling unit there were Elections where results were declared at the polling Unit as follows: PDP= 42 ANPP= 31 AC = 3 PRP= 1. But at the ward collation center the Returning Officer compromised his form stand and altered the result on the collation Result sheet to read PDP= 141 ANPP= 31 AC =3 PRP= 1. This affected substantially the result of this ward.

v. In Ung. Lalli Polling Station (code 009) that were no election the ballot bag and all the polling materials were carted away by unknown persons with the active support of uniformed man. The polling station was thrown into chaos. The polling officials declared a “no contest – no election for the unit. However the Returning Officer allotted the following results: PDP= 400 ANPP= 50 AC = 11.

iv. In Anguwan Kanawa (code 026), election took place and votes were counted at the polling station and result announced thereat as follows: PDP= 33 ANPP= 43 AC = 1 DPP=0 MRDP= 0 NDD = O.

However at the ward collation center, the Returning Officer and his Presiding Officer altered the result in favour of PDP as follows: AC = 1 ANPP= 19 PDP= 440 DPP= 11 MRDP= 0 This deliberate act affected the results substantially.

The Petitioner will rely on all the Form EC8A (1) from all the polling Units under reference together, with the Ward collation Result sheet in its possessions.

Notice is hereby given to the 3rd Respondent to produce all the original copies of same in their possession.”

“WHEREOF the Petitioner urged this Tribunal to determine, declare and order as follows:

1. That the 1st respondent was not duly elected by a majority of lawful votes.
2. That the petitioner be declared validly elected having polled the highest number of lawful votes cast at the election.
3. Alternatively that the election at Maigana Ward at Maigana Constituency in relation to the slat sought by the Petitioner is declared invalid as a result of corrupt practices and other irregularities perpetuated thereat contrary to the Electoral Act 2006.
4. An Order directing that fresh election is conducted in the said Magana Ward.

OR

The entire election in Maigana constituency is declared void and a recontest ordered by this court among the contestants without the 1st and 2nd Respondents.”

The appellants who were the respondents before the Tribunal, filed their joint reply and the paragraphs, I consider are as follows:-

“SAVE AND EXCEPT AS IS HEREINAFTER EXPRESSLY AND SPECIFICALLY ADMITTED the 1st and 2nd Respondents deny each and every material allegation of fact contained in the Petitioners’ Petition as if each of such material allegations of fact had been set out separately and specifically traversed seriatim.

1. That 1st and 2nd respondents are not in a position to admit paragraph 1 of the Petition.
2. The 1st and 2nd Respondents deny paragraph 2 of the Petition and state that the 1st Respondent is not guilty of non qualification nor were there malpractice as alleged and/or at all.
3. The 1st and 2nd Respondents admit paragraphs 3, 4, 5, 6, 7, 8 and 9 of the Petition.
4. The 1st and 2nd Respondents do not admit paragraph 10(A) of the Petition. The 1st and 2nd Respondents state that there were neither wide spread electoral malpractice, massive manipulation and inflation of figures in the results declared; nor were there box snatching and massive thumb printing of ballot papers in Maigana and Gimba wards during the election as alleged and/or at all.
5. The 1st and 2nd Defendant deny paragraph 10(A)(i) of the Petition and state that there was House of Assembly election at Ungwar Dallatu Polling Station (Code 001) and the election materials were neither destroyed nor were the result of the election manufactured as alleged and/or at all. That 1st and 2nd Respondents state that the result of the House of Assembly election in the said Polling Station as recorded by the presiding officer in the Form EC9A (i) is as follows: AC 0, ANPP 20, PDP 701 PRP 0.
6. The 1st and 2nd Respondents do not admit paragraph 10(A) (ii) of the Petition. The 1st and 2nd Respondents state that the result of the election in Anguwan Fulani Polling Station (Code 002) as recorded by the Presiding Officer is neither ANPP 25, PDP 20, PRP 0 as alleged; nor was the result changed as alleged and/or at all. The 1st and 2nd Respondents state that result of the House of Assembly election at the Anguwan Fulani Polling Station as recorded by the Presiding Officer in the Form EC8A (i) is as follows: ANPP25, PDP420, AC7, PRP2.
7. The 1st and 2nd Defendant do not admit paragraph 10(A)(iii) of the Petition and state that the scores of the candidates at the election in Dauda/Kadage Polling Station (Code 005) were neither altered nor changed as alleged and/or at all. The 1st and 2nd Respondents state that result of the House of Assembly election at the Dauda/Kadage Polling Station as recorded by the Presiding Officer in the Form EC8A (i) is as follows: AC21, ANPP 10, PDP 847.
8. The 1st and 2nd Respondents do not admit paragraph 10(A) (iv) of the Petition. The 1st and 2nd Respondents state that the scores of the parties at the Anguwan Waziri Polling Station (Code 012) is neither PDP127, ANPP162 and AC52 as alleged nor were the scores turned in favour of 2nd Respondent as alleged and/or at all. The 1st and 2nd Respondent state that the result of the election at the Anguwan Waziri Polling Station as recorded in the Form EC8A (i) is as follows: AC 32, ANPP 163, PDP 327, ADC 2.
9. The 1st and 2nd Respondents deny paragraph 10(B) of the Petition. The 1st and 2nd Respondents state that the INEC Returning Officer for the Maigana Ward is neither a card carrying member of the 2nd Respondent nor did he work to turn any result in favour of the 2nd Respondent at the collation centre as alleged and/or at all. In addition, the said Returning Officer is not contesting any election under the platform of the 2nd Respondent as alleged and/or at all.
10. The 1st and 2nd Respondents do not admit paragraph 10(C) (iii) of the Petition. The 1st and 2nd Respondents state that the vote scored by the parties at the Anguwan Sariki Lawur Polling Station (Code 005) as record by the Presiding Officer was neither ANPP 200, PDP 54 and AC 57 as alleged nor were the scores altered as alleged and/or at all. The 1st and 2nd Respondents state that result of the House of Assembly election at the Anguwan Sariki Lawur Polling Station as recorded by the Presiding Officer in the Form EC8A (i) is as follows: AC 2, ANPP 20, and PDP 290.
11. The 1st and 2nd Respondents do not admit paragraph 10(C) (iv) of the Petition. The 1st and 2nd Respondents state that the vote scored by the parties at the Anguwan Gora Polling Station (Code 007) as record by the Presiding Officer was neither ANPP 31, PDP 42 and AC 3, PRP 1 as alleged nor were the result altered as alleged and/or at all. The 1st and 2nd Respondents state that result of the House of Assembly election at the Anguwan Gora Polling Station as recorded by the Presiding Officer in the Form EC8A (i) is as follows: ANPP31, PDP141, AC3, PRP1.
12. The 1st and 2nd Respondents do not admit paragraph 10(C) (v) of the Petition. The 1st and 2nd Respondents state that there was election at the Anguwan Lalli Polling Station (Code 009) and the ballot bag and the polling materials were not carted away by any body as alleged and/or at all. The 1st and 2nd Respondents state that result of the House of Assembly election at the Anguwan Lalli Polling Station as recorded by the Presiding Officer in the Form EC8A (i) is as follows: ANPP 50, AC 11, PDP 400.
13. The 1st and 2nd Respondent do not admit paragraph 10(C) (vi) of the Petition. The 1st and 2nd Respondents state that the score of the parties at the Anguwan Kanawa Polling Station (Code 026) as record by the Presiding Officer neither was neither PDP 33, ANPP 43, AC1, DPP 0, MRDP 0, NDD 0 as alleged nor was the result altered as alleged and/or at all. The 1st and 2nd Respondents state that the result of the House of Assembly election at the Anguwan Kanawa Polling Station (Code 026) as recorded by the Presiding Officer in the Form EC8A(i) is as follows: PDP440, ANPP 19, AC 1, DPP 11.
14. The 1st and 2nd Respondents shall at the trial rely on the Form EC8A (i) that are relevant to the Polling Stations in issue together with the Ward Collation Result Sheet in its possession. Notice is hereby given to the 3rd Respondent to produce the original copies in their custody.
15. The 1st and 2nd Respondents do not admit paragraph 10(F), (G) and (H) of the Petition. The 1st and 2nd Respondents shall contend that the 1st Respondent was duly returned as elected having scored a majority of the lawful votes at the said election.
16. In the premise whereof the 1st and 2nd Respondents deny the Petitioners’ claims in its entirety and urges the Honourable Tribunal to dismissed them with substantial cost.”

PETITIONER’S RESPONSE TO ALL THE RESPONDENTS REPLY

1. “SAVE AS hereinafter expressly admitted the Petitioners deny the allegations of the Respondents in their reply and therefore make contrary averments as here under:

A. MAIGANA WARD

1. That in Unguwar Dallatu polling unit Code 001, there was no election as no scores were entered in form EC8B for Governorship from that unit.

i. That in both 1st and 2nd Respondents and 3rd – 18th Respondents response there is no witness who testified that he witnessed the conduct of election in the unit either as presiding officer, polling clerk agent or voter.

ii. That the honourable Tribunal should uphold no election in the unit and order for the removal of 701 votes allocated to PDP as such votes are illegal.

2. That in Anguwan Fulani polling unit, the Form EC8A (i) with serial number 009858 has the results as follows:

AC = 7 ANPP = 25 PDP= 52 votes.

i. That in form EC8B (i) the result was changed to read as follows:

AC = 7 ANPP= 25 PDP=425 votes.

ii. That in Form EC8B of Gubernatorial Elections, the party’s scores are as follows:

AC = 3 ANPP= 26 PDP= 22 PRP= 1 totaling 52.

iii. That since the elections for State Assembly and Governorship were conducted simultaneously in the same ballot box, this shows that only 52 voters cast their votes in the unit.

iv. That we urge the honourable tribunal to order for the removal in favour of PDP.

3. That in Bauda/Kadage polling unit code 005 the duplicate of form EC8A (i) with Serial number 009855, the result as signed by the Presiding Officer is as follows:

AC = 06 ANPP= 19 PDP= 17 totalling 42. The result was however recorded in form EC8B (1) by the Ward Returning Officer as follows: AC = 06 ANPP= 19 PDP= 417.

i. In the 3rd – 18th Respondents affidavit of witness “TE” in paragraph 6 and 7 he states as follows:

6. That I did not unlawfully mutilate Form EC8A (i) of Bauda Kadage polling unit nor did any staff or agent of the Commission unlawfully mutilate such”
7. That I did not forge any results in Bauda Kadage unit”

ii. The Petitioners neither accused the Presiding Officer for mutilating the form nor forging any result. The witness “TE” fell short of addressing the main issue, by stating the scores of each party at the poll as recorded in form EC8A (i).

Form EC8A (i), EC8B (i) and EC8B are pleaded and shall be relied upon in the hearing.

4. That the sworn affidavit of presiding officer of UPE Maigana code 004 main unit in the Respondents’ reply as should only be restricted to his unit that is “A” and should not speak on unit “B” which he is not presiding over.

i. Sworn affidavit of presiding officer of unit “B” earlier attached in the Petition should be uphold by the honourable Tribunal and order for the removal of any result in excess of 500 votes in the unit as such votes are illegal.

5. That in Unguwar Waziri/Fulani polling unit code 012, the duplicate copy of form EC8A (i) with serial number 009870 has the results as follows:

AC = 52 ANPP= 163 PDP=127 totalling 342 votes.

i. The results in Form EC8B (i) was as follows: AC = 52 ANPP= 163 PDP= 327.

This is in total conflict with the original results as recorded in Form EC8A (i) 009870 by the Presiding Officer.

ii. We shall be heard urging this honourable Tribunal to order for the correction of the scores as recorded by the presiding officer.

Forms EC8A (i), EC8B (i) and EC8B of Maigana ward are pleaded and shall be relied upon in the hearing.

6. In response to paragraph 10(B) of the Petition, the 5th Respondent denial of printing any poster for the purpose of any election as at the time he acted as returning officer is misleading.

i. That the 5th Respondent has distributed souvenirs before the election; one of such is toilet soap that has campaign slogan urging people of Soba local government to vote for PDP in the forth coming election. Also printed on the packet is his picture and PDP Logo with additional information saying “This is a contribution form Abdullahi Musa Ibrahim”. These have earlier been pleaded and shall be relied upon in the hearing.

That in the 5th Respondent affidavit, he testified that he did not alter, inflate or change any figure in Form EC8A (i). The Petitioners are not accusing the 5th Respondent for changing results in Form EC8A (i) but in Form EC8B (i)

B. GIMBA WARD

1. In response to paragraph 10(C) I – V, the Respondents claimed that the scores at the polling units were not changed.
2. That the result as indicated in Form EC8A (i) of the following units is as follows:

i. Anguwan Kanawa code 002 ANPP= 37 PDP= 15, AC = 0 PRP= 0

ii. Anguwan Sarki Lawur code 005 ANPP= 200 PDP= 54, AC = 57

iii. Anguwan Gora code 007 ANPP= 31 PDP= 42, AC = 3 PRP= 1

iv. Anguwan Lavi code 009 no scores to all parties

v. Anguwan Kanawa code 026 ANPP= 43 PDP= 33, AC = 1

3. That the results were changed in form EC8B (i) to read as follows:

i. Anguwan Kanawa code 002 ANPP= 30 PDP= 430, AC = 5 PRP= 0

ii. Anguwan Sarki Lawur code 005 ANPP= 20 PDP= 295, AC = 2

iii. Anguwan Gora code 007 ANPP= 31 PDP= 141, AC = 3 PRP= 1

iv. Anguwan Lavi code 009 ANPP= 50 PDP=400, AC = 11

v. Anguwan Kanawa code 026 ANPP= 19 PDP= 440, AC = 1

Duplicate copies of all form EC8A (i) of Gimba Ward are hereby pleaded and shall be relied upon.

4. On request to the 3rd Respondent for certified true copies of Forms EC8A (i) of Gimba Ward, it was noticed that new EC8A(i) forms were fabricated for the following polling units, code 002, code 005, code 007, code 009 and code 026.
5. A complete summary of Form EC8A (i) originally based on serial numbers used for the elections and the fabricated ones are given below.

S/NO POLLING ORIGINAL FORM NEW COMMENTS

UNIT EC8A (I) FABRICATED

Code 001 009874 –

Code 002 No EC8A (i) 10693 Not recordes. See

affidavit of Presiding

Officer. Signature of

the P.O. in the new

form is forged

Code 003 009876

Code 004 009877

Code 005 009878 104698 The new EC8A (i) has

no signature of ANPP

agent

Code 006 009879

Code 007 009881 104692 Signature of ANPP

Agent is forged

Code 008 009882

Code 009 No EC8A (i) 104690 The signature of

ANPP Agent is forged

in the new EC8A (i)

Code 010 009884

Code 011 009885

Code 012 Not in our possession In this unit, there is

over voting based on

form EC8B (i)

Code 013 009887

Code 014 009886

Code 015 009888

Code 016 062159 A Gubernatorial EC8A

changed for use in

state Assembly

Elections, there fore,

with different serial

number

Code 017 009890

Code 018 009891

Code 019 009892

Code 020 009893

Code 021 009894

Code 022 009895

Code 023 009896

Code 024 009897

Code 025 009898

Code 026 009899 104691 The signature of

ANPP Agent in the

new EC8A (i) is forged

Code 027 009801

6. The Petitioners put the 3rd Respondent on notice to produce the original copies of Form EC8A (i) with the following serial numbers 009873, 009878, 009881, 009883, 009889, 009899 which were used for April 14th State Assembly Elections. The duplicate of which is in our possession will be relied upon at the hearing.
7. That if all the illegal votes are deducted from PDP and legal voted of ANPP added to its score, the election result will be

ANPP= 20203

PDP = 17875

8. Whereof the Petitioner urge this Honourable Tribunal to determine, declare and order as follows:
9. That the 1st Respondent was not duly elected by a majority of lawful votes.
10. That the Petitioner be declared validly elected having polled the highest number of lawful votes cast at the election.
11. Alternatively that the election in Maigana Ward of Maigana Constituency in relation to the slat sought by the Petitioner be declared invalided as a result of corrupt practices and other irregularities perpetuated thereat contrary to the Electoral Act 2006.
12. An Order directing that fresh election is conducted in the said Maigana Ward.

OR

The entire election in Maigana constituency is declared void and a recontest ordered by this court among the contestants without the 1st and 2nd Respondents.”

Evidence was led by the parties in line with their respective pleadings with the petitioners/1st and 2nd respondents calling 14 witnesses in support of their petition while the appellants who were the 1st and 2nd respondents did not call any witness but tendered Exhibits K, K1, K2, K3 and K4 from the bar. The 3rd-18th respondents’ sole witness was the Returning Officer for Maigana. All the witnesses who testified for the petitioners/1st and 2nd respondents and the 3rd – 18th respondents sole witness, adopted their respective sworn depositions and were subsequently cross-examined. The sworn depositions were filed along with the petition and reply before the Tribunal.

There are two sets of witnesses called by the petitioners/1st and 2nd respondents to establish their case before the Tribunal. One set of the witnesses, PW1, PW2, PW3, PW4 and PW5 testified to the effect that election results were altered or falsified and tendered Exhibits A, B, C, D and F issued by INEC officials to their agents at the named polling units along with Exhibits A1, B1, C1, D1 and F1, the original copies in possession of INEC. While evidence was also led in support of the petitioners/1st and 2nd respondents’ claim of non holding of the election in some wards as testified by PW5, PW7, PW9, PW10, PW11 and PW12. The appellants in denial of the petitioners/1st and 2nd respondents claim relied on Exhibits K, K1, K2, K3 and K4 to disprove the petitioners/1st and 2nd respondents claim of non-holding of election in some polling units. The cross-examination of PW1, PW2, PW3, PW4 and PW5 are at pages 263 – 279 of the record:

“PW1- affirmed to tell the truth. My name is Alka Yusuf. I live at Angwan Waziri, Maigana at Soba Local Government. I adopt and abide by my written statement under oath.

In paragraph 5 of my statement under oath I stated that election took place and results recorded. If I see the result of the election I will be able to identify it. The scores of the election are on this result sheet so I can identify it. I can identify the result sheet through my signature and INEC Logo. This is the result.

Counsel- We seek to tender same having been pleaded in paragraph A (iv) at Page 4 of the Petition – and also same was also pleaded at Page 8 paragraph (i) of the Petition.

1st & 2nd Respondents Counsel- We object to the admissibility of this Result.

The Petitioner in paragraph A iv at page 4 referred to by Learned Counsel pleaded Form EC8A (1) of all the polling station, therein the Petitioner gave notice to the 4th Respondent to produce the original copies in their possession.

The 3rd Respondents both in their Reply to the Petition and their answer to Pre-hearing information sheet agreed to produce the original copies in their possession.

The copy now sought to be tendered is not that original copy which they gave INEC Notice to copy.

We submit that where a party has given notice to produce a document the only circumstance whereby he can produce any other document outside that original document is where the party given notice refuses to produce the original document.

In other words that party giving notice must show that the party that has been given his notice has failed to produce the original copy for which notice was given.

The purport of Notice to Produce was stated by Belgore JSC (as he then was) in Buhari v. Obasanjo 2006 2 EPR Page295 at 429 Paragraphs E-G.

The people who are supposed to produce have agreed as stated above to produce, so the petitioner cannot produce copies.

I ask that the Tribunal should reject this document.

3rd -18th Respondents- Sarah Ogbe holding brief for Ibrahim Idris came in at 1.30pm. We have the original but it is not in court.

Tribunal- We are not granting adjournment. Go to your office which is just a stone throw and bring it within 20 minutes.

3rd-18th Respondents Counsel- We have brought the original of the said Result. Tribunal- Give it to the Petitioner.

3rd -18th Respondents- I am opposed to his tendering the duplicate of the result and I associate myself with the 1st and 2nd respondents Counsel. This is because we have complied with his Notice to Produce and brought him the original. The duplicate sought to be tendered should be rejected.

Petitioners Counsel- The objections of Respondents Counsels on both sides are misconceived on the following grounds:

(1) At page 4 of our Petition paragraph 4, we have already said we are relying on the supplicate copies in our possession because we don’t want to take the risk of INEC bringing something that is different.

Duplicate copies are also primary evidence which is admissible in law pursuant to 5.94(4) of the Evidence Act. These are documents produced in the same process with the original and this is the decision in the case of-INEC v. Ray 2004 14NWLR Part 892 Pg. 92 at Page 131 Paragraph 0 v G.

Where it was held that duplicate copies given to agents at the polling centres are admissible as primary evidence.

On the point that we put them on Notice to Produce and which they have produced, we submit that the 3rd – 18th Respondents failed to give us the opportunity of seeing it up till the time of tendering this exhibit EC8A(1) and the Court in the interest of justice allowed them to bring it up.

They pleaded this very original EC8A (1) in their Reply to the Petition at paragraph 6 – 8 of the said Reply which also affords them the opportunity of tendering same as Exhibit.

The crux of this is the weight to be attached to the duplicate copy against the original which they have pleaded. We ask that this document be admitted under 5.6, 7 & S of the Evidence Act on grounds relevancy and discountenance their objection.

Tribunal- Where in 3rd – 18th Respondents Reply was this pleaded in their paragraph 7.

Petitioners Counsel- I seek to withdraw the submission in respect of paragraph 7.

Petitioners Counsel- The procedure of Notice to produce adopted by the Petitioner is a special procedure under 5.97 of the Evidence Act, and having adopted that procedure they are bound by it.

3rd-18th Respondents Counsel- I associate myself with the submission of 1st & 2nd Respondents Counsel.

Ruling

Tribunal- We have seen paragraph A (iv), Page 4 of the Petition where the Petitioners pleaded as follows:

“The petitioner pleads the Forms EC8A (1) of all the polling stations under reference including the ward collation result sheet and shall rely on the Duplicate copies in their Reply pleaded in their paragraphs 6 and 8 that they will rely on the original Result Sheets (Form ECSA(1). We are of the view that from the content of these averments from both parties these documents that is both the duplicate and supposed original Form EC8A (1) has been produced by the 3rd – 18th Respondents are relevant for the determination of the issues before the Tribunal. That being so they are hereby admitted as Exhibit A for the duplicate and Exhibit A1 for the original.”

“PW2 – affirmed to tell the truth. My name is Bashir Idris. I make statement on oath in respect of this matter and I adopt the said statement.

In a paragraph of this statement I mentioned that the results were recorded in Form EC8A (1) I will be able to identify the document if I see it because of the name of INEC, the Logo of INEC and the signature of the ANPP agent. This is the Result Sheet that I am referring to.

Petitioners Counsel- We seeks to tender this Result sheet which is pleaded at page 7, first paragraph of the Petition.

INEC has also produced the original which they have also pleaded in paragraph 8(d) at page 3 of their Reply.

We humbly tender these 2 documents.

1st and 2nd Respondents Counsel – We have no objection.

3rd – 18th Respondents Counsel- We have no objection.

Tribunal- The duplicate and the original copies are hereby admitted as Exhibit B & B1 respectively.”

“PW3 -affirmed to speak the truth. My name is Yunusa Babirni. I made the statement on oath before this Tribunal. I stated in my statement that election results were recorded on a Result Sheet. I can identify the document through INEC Logo, the name of INEC and the name of the polling station which in Gwonigwora and I also signed the document. This is the document that I am referring to. I adopt this statement.

Petitioners Counsel- We seek to tender it, Pleaded at page 7 of the Petition 1st Paragraph along with the original that was produced by 3rd – 18th Respondents which they pleaded in their paragraph 80.

1st & 2nd Respondents – No objection.

3rd -18th Respondents – No objection.

Tribunal-The duplicate copy and the original are hereby admitted as Exhibit C, C1 respectively. ”

“PW4 – Sworn on the Holy Quoran. My name is Yusuf Isah. I have earlier given a sworn statement in this Tribunal in respect of this case. I confirm that election took place at Angwar Kanawa II and results were declared and I was an ANPP agent during the election.

I hereby adopt my statement on oath. If I see the result sheet I will be able to identify it through INEC Logo, name of INEC and as an agent I also signed. I also know the outcome of the result on the Result Sheet. This is the Result Sheet.

Petitioners Counsel- This was pleaded in paragraph C (iv) on page 6 & 7 of the Petition.

We want to tender it along the original result sheet produced by INEC and pleaded at

Paragraph 8 d (v) at Page 3 of 3rd – 18th

Respondents reply.

1st – 2nd Respondents Counsel- We have no objection.

3rd -18th Respondents – No objection.

Tribunal: The duplicate copy of the above result as well as its original is hereby admitted as Exhibits D & D1 respectively.

Cross examination by

1st & 2nd Respondents Counsel-

I am an accredited agent of ANPP. My party accredited me.

3rd – 18th Respondents –

Ibrahim Idris came at 4.15p.m. and apologieses.

Cross examination by 3rd – 18th Respondents Counsel-

I am educated. I have only one signature.

This is the signature – he signs.”

“PW8 – Haruna Dauda affirmed to tell the truth. I made a written statement and I still stand by it. I hereby adopt my statement. In my written statement I stated that scores were recorded on Form EC8A (1). I can identify it because my signature is there on the Form and the scores too are on it. This is the Form that I referred to.

Petitioners Counsel- We pleaded this in paragraph 10(a) iv of our Petition, so we seek to tender it.

I wish to tender it along with the results produced From EC8A (i) by the 3rd – 18th Respondents in their paragraph 8 (last sentence) page 3.

1st & 2nd Respondents- No objection.

3rd -18th Respondents- No objection.

Tribunal- The original and the duplicate copies are hereby admitted as Exhibits “F”, “F1″ respectively.”

While PW5S- 270 – 271, PW7 – pages 278, PW9 – pages 279 – 280, PW10 – page 280, PW11 – pages 280 – 281, PW12 at pages 281 of the record:

“PW5- affirmed to speak the truth. My name is Haruna Aliyu. I stand by my statement on oath in this court. I was ANPP agent at Angwar Dalladi polling unit at Maigana ward. I adopt my statement on oath.

Cross-examination by 1st & 2nd Respondents Counsel- I said that there was violence and disturbance at the polling unit that I was agent. People ran away because of the violence. I did not hold any of the things. We waited to see whether election will take place or not. We sat together with the election officials before the things came. When the things came we did not run we wanted because we cannot leave the election materials there.

Cross examination by 3rd – 18th Respondents- It was when the people lined up to start the voting that the people (thugs) came. The thugs came around 2.30pm.

We reported to the police station and we were told that the DPO is not around.

Petitioners Counsel- These are all the witnesses that we have for today. We have 17 witnesses on the whole.

Tribunal- Petition is adjourned to 22nd August 07 for continuation.”

“PW7- Affirmed to tell the truth. Isiya Jikan Abdu is the name. I stand by my earlier written statement on oath. I seek to adopt my written statement on oath.

Cross-examination by 1st & 2nd Respondents-In my written statement I stated that the ballot box was taken to Police Station. The evidence I have to prove is that my presiding officer was there. I have no written evidence to prove that the ballot box was taken to the police station. I am actually a member of ANPP but my ID card is not here but is at home.”

“PW9 – Suleiman Turaki affirmed to tell the truth. I was subpoenaed to come to court today. Before the subpoena I made statement on oath. I hereby adopt the said statement.

x x x by 1st & 2nd Respondents – None.

3rd – 18th Respondents- None.

Re-Examination by Petitioner – None.”

“PW10- Magaji Umar affirmed to tell the truth. I made statement on oath before the tribunal and I still stand by that. I hereby adopt that statement.

x x x by 1st & 2nd Respondents – I have my identification as an ANPP agent. Here it is.

1st and 2nd respondents Counsel- Give it back to him.

x x x by 3rd – 18th Respondents- None.

No Re-examination by Petitioner.”

“PW11-Abdullahi Hussein affirmed to tell the truth. I made a statement on oath before this tribunal. I hereby adopt it.

x x x by 1st & 2nd Respondents- On the commencement of polls thugs with cutlass came to the polling station but I cannot precisely state the time.

x x x x by 3rd – 18th Respondents- None.

Re – Examination by Petitioner – None.”

“PW12- Mohammed Sabitu Adamu affirmed to tell the truth. I gave statement on oath before this Court. I hereby adopt my written statement on oath.

x x x by 1st & 2nd Respondents- I was not at the various polling units where the elections were held.

3rd – 18th Respondents- No x x x .

Re-Examination by Petitioner- None.”

Based on the evidence adduced by the parties which I purposely reproduced herein at great length and the documents admitted in evidence by the Tribunal, the Tribunal in its judgment at pages 353 – 358 of the record, held:-

“Having scrutinized and compared the two sets of results before us, our observation is that the scores recorded in the two sets of forms are different. In the original forms produced by INEC i.e. (Exhibits A1 B1 C1 D1 F1 the scores were altered in favour of the 1st Respondent while some of the scores of the 1st Petitioner were reduced. But the names of the presiding officers, names of polling units and their code numbers remain unchanged. The circumstances warranting the glaring alterations in the originals i.e. Exhibits A1 B1 C1 D1 F1 were left unexplained by the Respondents. This adds weight to and gives credence to the evidence of the Petitioners witnesses that Exhibits A1 B1 C1 D1 F1 were falsified.

On our part we have great doubt in our mind regarding the genuiness of these exhibits. We therefore do not attach any weight to them. On the other hand, we accept and rely on Exhibits A B C D F as the authentic results.

While we agree with the submission of the Learned Senior Counsel for the 1st and 2nd Respondents that there is a presumption in Law that the results declared by the 3rd Respondent is correct, that presumption is not water tight. It is rebuttable. The Petitioners in our view rebutted that presumption by calling witnesses and tendering two sets of results, one genuine and the other false for comparison by the tribunal.

For the purpose of clarity and ease of reference, we have set out hereunder the entries of scores in the two sets of results and the difference in scores as follows:

1. Unguwar Waziri Fulani polling unit Code 012 of Maigana Ward

Party Scores in Duplicate Form EC8A Scores in Original Form Difference in Scores

(1)(Exhibit A) (Exhibit A)

AC 52 52 NIL

ANPP 163 163 –

PDP 127 327 200

ADC 2 2 –

The unlawful votes added to PDP is 200

2. Unguwar Kadage Code 005 of Maigana Ward

Party Scores in Duplicate Form EC8A Scores in Original Form Difference in Scores

(1)(Exhibit F1) (Exhibit F)

ANPP 19 19 NIL

AC 6 6 –

PDP 17 417 400

The unlawful votes added to PDP is 400

3. Unguwar Sarkin Lawur Code 001 of Gimba Ward

Party Scores in Duplicate Form EC8A Scores in Original Form Difference in Scores

(1)(Exhibit B) (Exhibit B1)

PDP 54 290 236

ANPP 200 20 180

AC 57 2 55

The unlawful votes added to PDP score is 236 while the lawful votes removed from ANPP score is 180

4. Unguwar Gora Code 001 of Gimba Ward

Party Scores in Duplicate Form EC8A Scores in Original Form Difference in Score

(1) Exhibit C) (Exhibit C1)

ANPP 31 31 Nil

PDP 42 141 99

AC 3 3 –

PRP 1 1 –

ADC – – –

APGA – – –

BNPP – – –

DA – – –

DPP – – –

NAP – – –

NCP – – –

NDP – – –

NPC – – –

MMN – – –

MPDD – – –

PPA – – –

UNPP – – –

The unlawful votes added to the score of PDP is 99

5. Unguwar Kanawa II Code 026 of Gimba Ward

Party Scores in Duplicate Form EC8A Scores in Original Form Difference in Score

(1) Exhibit D) (Exhibit D1)

PDP 033 440 407

ANPP 043 19 24

AC 001 1 NIL

DPP 001 11 10

MRDP 001 – –

PNPP – – –

NDP – – –

The unlawful votes added to the scores of PDP is 407 while the lawful votes removed from the scores of ANPP is 24

It can be seen from the above tabulation that the sum of unlawful votes credited to PDP in the above five polling units is 1,342. This will be deducted from the final score of PDP while the sum of lawful votes removed from ANPP is 204. This will be added to final score of ANPP.

Before we continue, it is pertinent to state that where an allegation that votes credited to a candidate were not cast at the election is established the answer to it is to deduct the scores credited to the candidate from his overall score.

See Ezike v. Ezeugwu (1992) 4 NWLR (Pt. 236) 462 where the Court of Appeal Port Harcourt Division held as follows:-

“A petitioner who alleges that the figures in the result of an election were inflated needs to go further to prove his allegation by giving the particulars of the inflated figures and by also showing that if the inflated figures were taken from the votes credited to his opponent in the case, the result would change in his favour.”

In the instant case, the petitioners have by their pleading and evidence before this tribunal shown that if the inflated votes are deducted from the final score of PDP and by the same token if the lawful votes removed from the score of ANPP are added to the final score and the votes credited to him where election did not hold are deducted.

ANPP will have the majority of lawful votes cast at the election.

See also: Ajadi v. Ajibola (2004) 6 NWLR (Pt. 898) pages 158 -159.

Having arrived at the foregoing conclusion, we resolve Issue NO.1 in favour of the Petitioners i.e. the Petitioners have proved that results in certain polling units in Maigana and Gimba Wards were falsified.

As regards Issue No.2, which is whether the Petitioners have proved that elections did not take place in certain polling units in Maigana and Gimba Wards -?

The Petitioners called PW.5 Hanina Aliyu an ANPP party agent at Anguwar Dallatu polling unit of Maigana Ward Code 004 (A) who testified that no election took place at the unit. We note particularly the evidence of PW.6, Mohammed Tsoho a staff of the 3rd Respondent (INEC) who was an accredited presiding officer at Satellite unit UPC Maigana Polling Centre and PW.11 Abdullahi Husseni, ANPP agent at the same polling centre both said that no election took place at the Satellite unit as a result of disturbance by armed thugs.

PW.7 -Isiya Jikan Audu an accredited ANPP agent at Unguwar Kanawa Code 002 stated that on the commencement of the polls commotion broke out and as a result the ballot box was taken to the police station and the presiding officer could not record scores on form EC8A(1).

Of particular note also is the evidence of PW.9 Suleiman Turaki a staff of the 3rd Respondent (INEC). He was an accredited polling clerk at Unguwar Lalli polling centre of Gimba Ward and PW.10 Mogaji Umar, ANPP agent at the same polling centre both stated that no voting took place at the polling centre as a result of violence.

At the ward level, PW.13 Adamu Isa Harir the ANPP Returning Officer at Maigana Ward told the tribunal that despite complaints to the INEC Returning Officer at the final collation centre that election did not take place in Unguwar Dallatu, Unguwar Sarki and Unguwar Kwadara Code 006 he recorded scores for Unguwar Sarki Code 003 of Maigana Ward and entered no scores for Code 001 and 006.

He concluded that there were gross irregularities/alterations on Form EC8B (1).”

The Tribunal concluded its judgment at page 364 as follows:-

“Consequently, without any hesitation we hold that the 1st Petitioner Dr. Shehu Usman Adamu having scored the majority of lawful votes cast at the election is hereby declared as the duly elected member of the Kaduna State House of Assembly Maigana Constituency.

Accordingly, the election of the 1st Respondent Sani Mohammed Iliyasu into the Kaduna State House of Assembly, Maigana Constituency is hereby nullified.”

It is contended by the learned counsel for the appellants, relying on several authorities that the averments of the 1st and 2nd respondents who were the petitioners alleged commission of crime and for that reason, the standard of proof going by the provisions of Section 137 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990 is proof beyond reasonable doubt.

Learned counsel for the appellants, strenuously argued that in the instant appeal the evidence adduced by the 1st and 2nd respondents as petitioners has not met the standard of proof required by Section 137 of the Evidence Act, hence the case of the 1st respondent was not proved beyond reasonable doubt as required by law. According to the learned counsel for the appellants, the Tribunal was wrong in its judgment given in favour of the 1st and 2nd respondents/petitioners when they did not satisfy the requirement of the law.

On the other-hand, it is argued by the learned silk for the 1st and 2nd respondents/petitioners that no allegation of crime was made in their pleadings. Pointing out that their case is a simple case; it is a case of falsification of scores simpliciter. He further stated that the other averments merely complained against the inclusion of scores in polling units such as Unguwar Dallatu Polling Centre (Code 001), Unguwar Fulani Polling Centre (Code 002); Dauda/Kadage Polling Units, (Code 005), Maigana Polling Units – (Code004) and Unguwar Waziri (Code 012) which is equally an allegation of falsification of scores simpliciter which does not require proof beyond reasonable doubt but proof on the balance of probabilities.

The issue of standard of proof in an election petition was considered and determined by the Supreme Court of Nigeria, in the case of NWOBODO V. ONOH (1984) 1 S.C at 148 – 149, the Supreme Court per Eso, JSC, inter alia, held that by interpretation of Section 137(1) of the Evidence Act, it is difficult to hold a general allegation of wrong doing, as in this case, which is falsification of results and no more to amount to such a serious offence as forgery and overlooking the real crux of the matter, which is the determination of who has the majority of lawful votes in an election. It is further held in NWOBODO (supra) that even where the allegation of crime has been made in the pleadings; it may be possible to prove the case without the proof of the crime. That the mere fact that the crime has not been proved is no bar to proving the case on some other evidence on the balance of probabilities. It should be noted that what Section 137(1) of the Evidence Act, requires is that crime not the case – shall be proved beyond reasonable doubt.

A party is not expected to lead evidence in proof of every averment in his pleadings. Although, he is bound by his pleadings, he is at liberty to abandon such averments as he considers unnecessary to his case or which he is unable to prove. See GBADAMOSI OLORUNFEMI & 7 ORS. V. CHIEF RABIU EYINLE ASHO & ANR. (2000) 2 NWLR (PT. 643)143 at 158.

In OMOBORIOWO V. AJASIN (1984) 1 S.C. at 216, the Supreme Court of Nigeria, per Bello, JSC (as he then was), still on the issue of the interpretation of Section 137(1) of the Evidence, Act, held:-

“Again, in my reason for judgment in NWOBODO V. ONOH (supra) I considered fully the scope of Section 137(1) of the Evidence Act and its application to the pleadings of a particular case as qualified by the principle of severance of pleadings as demonstrated in NWANKERE V. ADEWUNMI (1967) N.M.L.R. 45 at 48 and ARAB BANK V. ROSS (1952) Q.B.D. 216 at 229.”

From a critical examination of the averments of the pleadings of the 1st and 2nd respondents/petitioners, reproduced in this judgment, it cannot be said that the averments contained any allegation of crime but simply averred alteration or falsification of results and inclusion of scores where election did not hold at all due to violence and disruption of the conduct of the election as well as threat to peace which resulted in the non-holding of election. However, scores were recorded in the said polling units herein mentioned in this judgment. To prove falsification, it is basic that there should be in existence at least two set of results one of which is genuine and the other stigmatized. See SABIYA V. TUKUR (1983) S.C. 109 at 110.

In the instant appeal, the 1st and 2nd respondents as petitioners, in proof of their case, tendered documentary evidence and relied on the two set of Exhibits, A, B, C, D and F issued to their agents at the polling units by INEC, the genuine results and Exhibits A1, B1, C1, D1 and F1, tendered in evidence through INEC, the stigmatized scores. Documentary evidence being permanent in form is more reliable than oral evidence and is used as a hanger to test the credibility of oral evidence. See the cases of S.B. FASHANU V. M.A. ADEKOYA (1974) 6 S,C, 83; KIMDEY V. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT. 77) 445 at 473.

Since the two sets of results were obtained from the same source both being originals, there ought to be no difference in the scores at all. It should be noted that no explanation whatsoever was offered by either the appellants or the 3rd – 18th respondents as to the difference in the scores. Also, evidence was led as to the cause of the non holding of the election in the mentioned polling units but as can be clearly seen from the cross-examination, the evidence was neither challenged nor discredited by the appellants as 1st and 2nd respondents before the Tribunal. Evidence which is unchallenged through cross-examination, not controverted by other evidence and is not by itself incredible is qualified to be accepted and acted upon by the trial court. See OMOREGBE V. LAWANI (1980) 3 – 4 S.C. 108 AT 117; EGBUNIKE V. AFRICAN CONTINENTAL BANK LTD (1995) 2 NWLR (PT.375) 34; BROAOLINE ENTERPRISES LTD. V. MONTEREY MARITIME CORP. (1995) 9 NWLR (PT.417) 1 at 27; YESUFU V. KUPPER INTERNATIONAL N.V. (1996) 5 NWLR (PT.446) 17 and IVIENAGBOR V. BAZUYE (1999) 9 NWLR (PT.620) 552 at 558.

As found by the Tribunal in its judgment, sufficient credible evidence was led by 1st and 2nd respondents/petitioners of violence and thuggery which affected the conduct of the election to the detriment of the 1st and 2nd respondents/ petitioners in favour of the appellants as scores were recorded in favour of the appellants in respect of the mentioned polling units where election did not take place at all as proved by evidence. It is surprising that the appellants did not offer any evidence in rebuttal of the allegation or discredit the 1st and 2nd respondents/ petitioners’ witnesses on cross-examination. It can infact clearly be seen from the proceedings reproduced herein that the appellants did not even cross-examined the witnesses called by the 1st and 2nd respondents/petitioners despite the fact that they had the opportunity to do so.

The clear picture that emerged from the proceedings of the Tribunal, according to my understanding is that the scores contained in Exhibits A, B, C, D and F, issued to the 1st and 2nd respondents/petitioners agents by INEC were altered or falsified in Exhibits A1, B1, C1, D1 and F1, even though they were obtained from the same source, INEC, without any acceptable explanation. Also scores were recorded in some polling units where there is credible evidence that elections did not hold in those units mentioned. There is no doubt whatsoever that the falsification or alteration of scores by inclusion of false results affected the result of the election.

Relying on the authority of SAM V. EKPELU (2000) 1 NWLR (PT.642) 582 at 596, I agree that the Tribunal acted rightly by adding the votes found to have been wrongly excluded or added to the scores of the affected candidates, in order to determine the candidate with majority of lawful votes.

As it is in this appeal, as can be seen from the record of proceedings, the appellants who did not lead any evidence at all, relied on the 1st and 2nd respondents/petitioners’ case. The 1st and 2nd respondents/petitioners relied mainly on documentary evidence which remained unchallenged and uncontroverted. It is trite law that when evidence is unchallenged and uncontroverted, the same may be accepted by the trial court for the purpose the evidence is offered provided the evidence is in itself credible. See ADEJUMO V. AYANTAGBE (1989) 8 NWLR (PT.110) 417 and OWONIYI V. OMOTOSHO (1961) 2 S.C.N.L.R. 57; (1961) 1 ALL NLR 304.

It should be noted that averments in pleadings do not amount to evidence, which a court could rely upon. Although, the appellants filed their pleadings containing several averments, they did not lead any evidence in support of their averments. The issue of serial number and signature raised by the appellants in their brief of argument must be discountenanced as the appellants are raising a fresh issue without seeking and obtaining the leave of this court to do so.

In my humble opinion, the Tribunal painstakingly considered the evidence adduced and in line with the pleadings, meticulously resolved the issues before it.

It is trite law that the evaluation of the evidence adduced in a trial by a witness, and the ascription of probative value to such evidence are matters within the exclusive competence of the trial judge who had the advantage of seeing the witnesses and watching their demeanor, and of hearing them give evidence.

An appeal court will not disturb such a trial judge’s findings of fact unless they are perverse – See SHELL B.P. PETROLEUM DEVELOPMENT COMPANY OF NIGERIA V. HIS HIGHNESS PERE COLE & ORS. (1978) 2 S.C. 183.

It has not, in this appeal been shown that the findings of the Tribunal are in any way perverse.

In the final analysis, I hold that the appeal lacks merit and is hereby dismissed. Accordingly, the judgment of the Kaduna State National Assembly/Governorship and Legislative House Election Tribunal holden at Kaduna in Petition No. EPT/HA/006/2007 delivered on the 25th day of October, 2007 is hereby affirmed by me with costs to the 1st respondent assessed at N30,000.00.

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Other Citations: (2008)LCN/2825(CA)