Mansir Aminu V. Aliyu Ahmed & 22 Ors. (2008)

LawGlobal-Hub Lead Judgment Report

ABUBAKAR ABDULKADIR JEGA, J.C.A.

This is an appeal by the Appellant against the judgment of the Governorship and legislative Houses election petition Tribunal delivered on the 25th day of july 2007 by which the petition of the Appellant was dismissed.

The facts of this appeal are stated thus:-

The Appellant brought his petition No. HA/EPT/KTS/S/07 dated the 11th day of May, 2007 but filed on the 14th day of May, 2007 against the result of the House of Assembly Election conducted by the 23rd Respondent (INEC) on 14th day of April into the Katsina State House of Assembly in Bakori Constituency wherein the 1st Respondent was declared winner and returned as such by the 3rd respondent having scored a total votes of 18,017 as against the Appellant who scored a total of 17,652 votes.

The appellants complaint is against the result of only one out of the eleven (11) wards that made of Bakori Constituency i.e. the Appellants complaint relate solely to the result of the 14th day of April 2007 House of Assembly Election in the Barde/Kwantakwaram ward of Bakori constituency where the Appellant alleged that there was falsification or alteration of election result.

The Barde/Kwantakwaram ward where the appellant alleged that there was falsification of result is made up of (18) eighteen polling units or stations. Consequent to the above complaint the appellant prayed the Governorship/Legislative Houses Election Tribunal sitting in Katsina, Katsina State for the following reliefs.

a. That the actual results contained on Forms EC8A from the 18 aforesaid polling stations be re collated .

b. That the petitioner be returned or declared winner of the 14th April 2007 election to the State House of Assembly.

c. That the petitioner be declared to have majority of lawful votes cast at Barde/Kwantakwaram ward election to the House of 14th April, 2007.

The Appellant in proof of this case tendered exhibits p1-p7 and called only one witness (PW1) Dan Asabe Bako (the PDP Agent for Barde/Kwantakwaram Ward). The 1st Respondent alone testified in his defence, while the 2nd -23rd Respondents did not call any witness.

The Tribunal in its delivered on the 25th day of July, 2007 dismissed the Appellant’s petition on the basis that the allegation of falsification or alteration of result of the Barde/Kwantakwaram ward election had not been proved beyond reasonable doubt in accordance with S. 138 (1) of the Evidence Act as most of the documents relied upon were either blank or the figures recorded on them too faint that it will not be possible to read them correctly and same cannot be identified as they are not manifest on the result sheet. In other electoral forms tendered as exhibits by the Appellant there were glaring discrepancies that to collate the result therein is simply impossible. The Tribunal consequently held that by virtue of S.150 (1) of the Evidence Act LFN 1990 there is a presumption of regularity for an official act shown to have been done in a manner substantially regular.

The appellant being dissatisfied with the judgment filed his notice of appeal dated and filed on the 6th August, 2007 containing three grounds of appeal.

We heard this appeal on the 11th June, 2008, Mr. D. Olaniyan learned counsel for the appellant adopted his brief dated 21/9/07 and filed on 26/9/07 and also his reply brief dated 21/1/08 and filed on 25/1/08 and urged the court to allow the appeal.

Mr. T. Abe learned counsel for the 1st respondent adopted his brief of argument dated 15/10/07 and filed on 16/10/07. The 3rd to 23rd respondents, counsel was not in court to argue his appeal his brief of argument is dated 6/2/08 and filed on 19/2/08. It is deemed argued under order 17 Rule 9 (4) of the court of Appeal Rules 2007.

From the three grounds of Appeal learned counsel for the Appellant formulated two issues for determination. The issues are:-

1. “Whether having regard to the findings of the trial court the appellant had not rebutted the presumption of authenticity and correctness of the result declared by the 23rd respondent.
2. Whether having regard to the evidence before the trial court the appellant had not discharged the burden of proof imposed on him by section 138 of the evidence Act.”

On his part learned counsel for the 1st respondent formulated one issue for determination, the issue is stated thus:-

1. “Whether the learned judges for the Election Petition Tribunal sitting in Katsina, Katsina State, were correct to hold that the evidence adduced by the petitioner/appellant did not prove the criminal allegation of alterations of result beyond reasonable doubt and thereby failed to rebut the presumption of regularity under section 150 of the Evidence Act.”

Also the learned counsel to the 3rd to 23rd respondents formulated one issue for determination, the issue is stated thus:-

1. “Whether the learned judges of the trial Tribunal were right to have held that the Petitioner did not rebut the presumption of regularity under Section 150 of the Evidence Act and also did not discharge the burden of proving the allegations of falsification and alteration of results beyond reasonable doubt as statutorily required on the basis of which it dismissed the petition?

However in my view from the three grounds of appeal and the circumstances of this appeal, the following issue as formulated by the court would adequately disposed of the appeal the issue is stated thus:-

“From the Evidence adduced before the trial Tribunal and the findings made by the Tribunal was the Tribunal justified in dismissing the petition”.

Learned counsel for the 1st respondent in his brief of argument incorporated a notice of preliminary objection. The notice of preliminary objection read thus:-

TAKE NOTICE that the 1st respondent shall at the hearing of this Appeal raise preliminary objection to the competence of this appeal on the following grounds:-

1. “The Appellant’s brief of argument was not personally served on the 1st respondent as required by the practice, Direction No.2 of 2007 and the Rules of this Court.
2. The issues formulated by the petitioner/ Appellant did not arise or emanate from any of the three grounds of appeal filed by the petitioner/Appellant.”

On the first ground of objection learned counsel for the 1st respondent submitted that the appellant’s brief of argument must be personally served on the 1st respondent in accordance with the provisions of paragraph 5 of the Electoral Act, 2006 No.2 Section 149 and practice Direction No.2 of 2007 couple with the succinct provision of order 6 rule 4 of the court of Appeal Rules 2002 which provides for a mandatory personal service of the appellant’s brief of argument on the 1st respondent. Learned counsel to the 1st respondent contends that the service effected on the 1st respondent was incurably bad and should be set aside.

On the second ground of objection learned counsel for the 1st respondent submits that none of the two issues formulated by the appellant emanated, or was formulated from any of the three grounds of appeal filed Counsel submitted that the issues formulated cannot be countenanced by this Honourable Court as they are incurably detective and contrary to the provision of Order 6 rule 3 of the Court of Appeal Rules reference made to CHIEF FLINT OBIKWE V. CHIEF BEN OBI and 5 ORS (2006) All FWLR (PTSIS) 152 at 161; OLASONKANMI GREG V. FIRST BANK OF NIG. PLC (2006) ALL FWLR (PT326) 253 at 277.

Learned counsel for the 1st respondent urged us to discountenance the two issues formulated by the Appellant and for the issues formulated to be struck out.

In response to the submissions on preliminary objection, learned counsel to the Appellant submitted that the first ground of objection is incompetent and should be struck out. That an allegation that a party was not served with a process personally is an allegation of fact which should be embodied in an affidavit so that the Appellant can dispute it if he so wishes. As there is nothing by way of affidavit evidence to support this claim and ground is incompetent and liable to be struck out.”

In the alternative counsel to the appellant submits the 1st respondent has placed reliance on paragraphs of the Electoral Act 2006. NO.2. Section 149 and Practice Direction NO.2 of 2007 couple with the succinct provision of Order 6 Rule 4 of the Court of Appeal Rules 2002. In support of the first ground of objection, learned counsel to the Appellant submits these provisions cited do not support the contention of the 1st Respondent and urged us to dismiss this ground. On the second ground of the objection learned counsel to the Appellant submits that the two issues Counsel submits that where an issue for determination can be formulated in this appeal flow from the grounds of appeal before the court. That an issue for determination flows from the grounds of appeal if it is relevant or relates to the grounds of appeal reference – made to EKONG v. UDO (2003) FWLR (PT 139) 1576.

Counsel submits that where an issue for determination can be linked to a ground of appeal that issue emanated or is relevant to the ground of appeal. Reference made to MOCHI V. STATE (2003) FWLR 166.

Learned counsel to appellant referred to the three grounds of appeal and submits that issue No. 1 relates to ground No. 1 and issue No. 2 relates to grounds 2 and 3 of the grounds of appeal and urged us to dismiss the preliminary objection.

On the first ground of objection learned counsel for the 1st Respondent relied on paragraph 5 of the Electoral Act 2006 NO.2, Section 149 and Practice Direction NO.2 of 2007 and Order 6 Rule 4 of the Court of Appeal Rules 2002.

I have checked the provisions of the above enactments cited and none of them support the contention of the 1st respondent, the provisions of the enactments deal entirely with different matters that in no way relates to the contention of counsel to the 1st Respondent on his first ground of objection.

There is nothing before the court to show that the 1st Respondent has not been served with the Appellant’s brief of argument personally or that the brief of argument of the Appellant was not served on the 1st Respondent on the contrary there is clear evidence that the Appellant’s brief of argument is in possession of the 1st Respondent and based on it he has adequately responded by filing his own brief of argument, I therefore find no merit in this ground of objection and accordingly it is dismissed.

On the second ground of objection I have looked at the three grounds of Appeal and it is my finding that issue NO.1 relates to ground 1, of the grounds Appeal and issue No. 2 relates to ground 2 and 3 of the grounds “of Appeal, the second ground of objections also failed and it is dismissed. On the whole the notice of preliminary objection is totally lacking in merit and it is accordingly dismissed.

Sole issue for determination:-

“From the evidence adduced before the trial Tribunal and the findings made by the trial Tribunal was the Tribunal justified in dismissing the petition.”

Learned counsel to the Appellant referred to page 208 of the Record of the Tribunal that the Tribunal whilst relying on the case of BUHARI V.OBASANJO (2005) FWLR (PT 258) 1604 at 1672 declared ” ….. By virtue of Section 150 (1) of the Evidence Act, there is a presumption of regularity for an official act shown to have been done in a manner substantially regular though the presumption is rebuttable but it was not so rebutted in this case”

Learned counsel to the Appellant referred to the findings of the Tribunal at page 205 of the record of proceedings and submits that it is conceded that there is a rebuttable presumption that results of any election declare by the authority that conducted the election is correct and authentic. However once the authenticity and correctness or the result has been impugned the presumption is rebutted.

Learned counsel for the Appellant argues that the appellant successfully rebutted the presumption of authenticity and correctness of the result of Barde/Kwantakwaram ward. That the Appellant tendered Exhibits p2, p4, p5, p6 and p7 in support of the petition whilst Exhibits p2 and p4 were from bar by counsel for the petitioner. That Exhibits p5, p6 and p7 were tendered through the INEC Electoral Officer pursuant to an Order of subpoena Duces Tecum.

Counsel to the Appellant contends that on pages 205-206 of the record of proceedings the Tribunal compared the results as shown on Exhibits p2 and p6 and came to the following conclusion in the last paragraph of page 206

“… this trend of alteration is made clear by the fact the total votes recorded for the three political parties in 9 out of the 18 polling Stations did not tally with their individual scores. Also the total votes recorded for ANPP was altered from 901 to read 2440 while that of the PDP was altered from 2962 to read 2762 … On the other hand Exhibit p2 has no such alterations and the total scores recorded tallies with the individual score of the parties.”

That for the purpose of clarity, it is important to compare the total votes allotted to the two candidates at Barde/Kwantakaram ward as I shown on both EXHIBIT p2 the unaltered result the Appellant had 2962 votes while the 1st respondent scored 901 votes whereas after alterations in Exhibit p6 the Appellant total votes was altered to2,762 while the 1st Respondent was increase from 901 votes to 2,440 votes. That the result of this alteration as that instead of the Appellant scoring 17,868 votes and the 1st Respondent scoring 17,126 votes in the Bakori Constituency, the Appellant was awarded 17,652 votes while the 18 Respondent was awarded 18,017 votes.

Learned counsel to the Appellant submitted that this alteration was done to the detriment of the Appellant and urged the court to invoke Section 16 of the Court of Appeal Act 1981 to so hold reference made to CHUKWUMA V. ANYKORA (2006) All FWLR (PT302) at 122.”

Further counsel to the Appellant submit that having found that Exhibit p6 contained alterations whereas Exhibit p2 had none and the “total scores tallies with the individual scores of the parties the Honourable Tribunal ought to have held that the presumption of regularity had been successfully rebutted “by the petitioner reference made to CHUKUMA V. AYAKORA (supra) at 144.

That Exhibit p6 is a document produced and tendered by INEC learned counsel to the Appellant referred to page 208 of the record of proceedings and contends that by the pronouncement of the Tribunal the authenticity and correctness of the results declared by INEC has been impugned.

Further learned counsel to the Appellant referred to the judgment of the Tribunal at page 207 of the record of proceedings and submitted that while it is conceded that an alteration or falsification or alteration of result being of a criminal nature the proof required is proof beyond reasonable doubt, counsel contends that proof beyond reasonable dout is not attained by the number exactitude nor proof beyond a shadow of doubt, reference made to UKPE V. STATE (2002) FWLR (PT 103) 416 at 435; DIBIE V. STATE (2005) All FWLR (PT 259) 1995 at 2017.

That to discharge the burden of proving an allegation of falsification or alteration of result a party is required to prove at least two results – reference made to ETOK V. ISEMIN (1992) 4 NWLR (PT.236) 402 at 414; OJO, V. ESHO and ORS (1995) 5 NWLR (PT 603) 444 at 452 – 453. SABIYA V. TUKU (1983) NSCC 559 at 560.

Learned counsel for the Appellant submitted that the Appellant tendered two results, one stigmatized and the other genuine and by so doing furnished all the evidence discoverable therein – reference made to KINGIBE V. MAINA (2004) FWLR (PT 191) 1555 at 1589.

Further learned counsel to the Appellant referred to the judgment of the Tribunal at page 206 of the record of proceedings and the circumstances under which the officials of the 23rd Respondent produced and tendered Exhibits p5 and p6 and contend that ought the Appellant be punished for the deliberate omission of the 23rd Respondent or ought the 23rd Respondent be allowed to benefit from its own wrong doing, reference made to BUHARI V. OBASANJO (2005) All FWLR (PT 258)1604 at 1616.

That by failing to produce the originals of INEC Forms EC8A(1) the presumption under Section 149(d) of the Evidence Act is that if it had been produced it would have been unfavourable to INEC reference made to UDEAGU V. BCC PLC (2005) All FWLR (PT 276) 720 at 734. Counsel urged us to resolve the presumption in Section 148(d) of the Evidence Act in favour of the Appellant.

On the case of ONWUDINJO V. DIMOB (2006) 1 NWLR (PT 961) 318 relied by the Tribunal learned counsel for the Appellant submitted that the Tribunal misconceived the principle stated in that case, that the principle did not state absolutely as the Tribunal seem to have thought that once two documents tendered by a party contradict or are at variance with each other the party tendering the evidence goes to no issue.

Counsel urged us to hold that Exhibit p2 and Exhibit p4 on one hand and Exhibit p5 and p6 on the other hand rather than weakening the case of the Appellant, actually support it; and that the Appellant proved his case beyond reasonable doubt.

In his response to the submissions of the learned counsel to the Appellant learned counsel to the 1st Respondent referred to presumption of regularity of an official act as provided for under Section 150 (1) and (2) of the Evidence Act and submitted the issue of the capacity in which any of the officials of the 23rd Respondents (INEC) i.e. the 3rd to 22nd Respondents acted in the conduct of the Katsina State House of Assembly election of Bakori Constituency held on the 14th day of April, 2007 was neither questioned or challenged by the petitioner/appellant. That the 1st Respondent’s arguments on the issue formulated will focus on the provision of Section 150 (1) of the Evidence as it affects the regularity or otherwise of the acts or conducts of the 23rd Respondents’ officials, particularly the 4th respondent (the returning officer for Barde/Kwantakwaram ward) who was criminally alleged by the Petitioner/Appellant to have altered the results of the election from that ward, which purportedly denied the Petitioner/Appellant the majority of lawful votes cast in the house of Assembly election of Bakori Constituency on the 14th day of April, 2007 and the ultimate declaration of the 3rd Respondent as the winner of the said election.

Learned counsel stated all the facts that were duly admitted by the Respondents to this appeal and submitted that in order to know whether the presumption of regularity under Section 150 (1) of the Evidence Act with regard to the conduct of the 14th April, 2007 House of Assembly in Bakori Constituency of Katsina State was rebutted or not regard must be had to the onus of proof required of the petitioner/Appellant by law regard being had to the nature of the alteration being made and the evidence available before the Election petition Tribunal produced by the petitioner/Appellant in proof of the said allegation.

That both the Appellant and the Respondents are in agreement that the allegation of falsification or alteration of election result of the Barde/Kwantakwaram ward made against the returning officer (the 4th Respondent was a criminal one and in accordance with both statutory and judicial authorities must be proved beyond reasonable doubt.

Learned counsel to the 1st Respondent referred to the Provisions of Section 138 (1) And (2) of the Evidence Act and submits that the evidence needed to be produced to prove the criminal allegation being made must leave no doubt in the minds of the Honourable judges of the Tribunal that indeed the returning officer deliberately allotted or falsified the election results to the disadvantage or detriment of the petitioner/Appellant. That where any doubt is cast, exist or is shown to have occurred in the evidence produced by the petitioner/Appellant, it is, trite law that such doubt; must as of necessity be resolved in favour of the accused (the 4th Respondent).

Counsel for the 1st Respondent submitted that where such doubt existed in the evidence produced by the petitioner/Appellant as in this case, the presumption of regularity under Section 150 (1) of the Evidence Act can hardly be said to have been rebutted.

It is submitted for the 1st Respondent that on a dispassionate consideration of both the evidence given by the petitioner/Appellants only witness who, testified as’ ‘PW1 ‘and the documents tendered by the petitioner/Appellant admitted and marked as Exhibits p1 to p7 before the election Tribunal, one is not in doubt that the entirety of the evidence adduced by the petitioner/Appellant clearly any glaringly fell short of the required standard of proof needed to discharge the burden placed on the petitioner/Appellant to succeeds in his petition. That PW1 who is an illiterate as shown in his evidence under cross examination tendered his written statement on oath and Form EC8B (1) as Exhibits p1 and p2 respectively. That Exhibits p1 and p2 containing the signatures of the witness showed clear and glaring differences. Also it was discovered during cross examination that the pw1 did not understand the contents of Exhibit p2 which he signed but was written in English language without any jurat as he was only purportedly and allegedly shown by the collation officer where to sign.

Further counsel to the 1st Respondent submitted that Exhibit p2 tendered by the petitioner/Appellant and upon which his allegation of alteration and falsification is hinged was only signed by the collation officer and pw1 alone but did not contain the signatures of the Agents of the 1st respondent and the Action Congress candidates whom the pw1 had erroneously earlier testified that they also signed the exhibit, neither does it have the official stamp and signature of the 4th Respondent (the Barde/Kwantakwaram Returning Officer) against whom the criminal allegation was made as required by Section 75 of the Electoral Act, 2006. That no reason whatsoever was given by the petitioner/Appellant’s witness (pw1) why the returning officer for the Barde/Kwantakwaram and the two agents of the other political parties who participated in the election did not sign Exhibit p2 even though they were present and available.

Counsel for the 1st respondent contends that what this portends by the evidence of pw1 and Exhibits p1 and p2 is that they are unreliable, baseless and cannot be accorded any probative or evidential value at all since it fell short of the requirement of the law. Further learned counsel for the 1st Respondent submitted that on Exhibits p3 – p7 tendered by the petitioner/Appellant in prove of the allegation in his petition, that the Tribunal makes an indepth, painstaking analysis and evaluation of these evidence and finding of facts as no stone was left unturned in ensuring that justice is clearly and patently done to their contents.

Counsel to the 1st respondent referred to the findings made by the Tribunal on pages 206 – 207 of the record of Appeal and submits that the petitioner/Appellant has not in anyway been able to show that these findings made by the Tribunal were either perverse or unsupported by evidence – that being the case, counsel urged us not to interfere with the findings of facts made by the Tribunal, reference made to LORETO NWAKASE (TRADING UNDER THE NAME AND ALIAS MAULORA MACHIE) V. CHRISTY CHIDI NWACHUKWU (2004) All FWLR (PT 210) 1292 at 1299; CHIEF VICTOR WOLUCHEM and OTHERS V. CHIEF SIMON GUDI (1981) SSC 291 at 326.

In his response to the submissions of counsel to the appellant, counsel to the 3rd to 23rd Respondents submitted that the Trial Tribunal was right when it held that from the evidence placed by the parties before it particularly those of the Appellant, the Appellant failed to rebut the presumption of regularity of officials acts in relation to the elections held for the Bakori Constituency of Katsina State held on 14th April, 2007. That also the Tribunal was right when it held that the Appellant failed to discharge the burden of proof of falsification and alteration of results beyond reasonable doubt, reference made to EMEGOKWE V. OKADIGBO (1973); SECTIONS 135 – 138 of the Evidence Act; NWOBODO V. ONOH (1984) 1 SCNLR 1; ANAZODO V. AUDU (1999) 4 NWLR (PT 600) 530; WALI V. BAFARAWA (2005) All FWLR (PT 249) 1863.

Counsel to the 3rd to 23rd Respondents submits that a careful consideration of the evidence led by the only witness of the petitioner one Dan Asabe Bello showed that he was given a copy of Form EC8B (Exhibit p2) which he endorsed with other agents of the candidates who took part in the election. That exhibit p2 was shown to the witness during cross examinations and he admitted that the signatures of other witnesses were not on the said exhibit. That the witness did not give any shred of evidence as to who altered EC8B (Exhibit p2) and when and where the alteration was done. Further counsel for 3rd to 23rd Respondents argues that exhibit p2 upon which the whole alteration of falsification and alteration of results of the disputed ward rested was a document signed only by the petitioner’s only witness and collation officer and was not signed or authenticated by agents of the 1st Respondent and the candidate of Action Congress. That the document was not stamped signed and countersigned by the 4th Respondent as required under Section 75 of the Electoral Act 2006. That the Tribunal was correct when it refused the evidence of pw1 and exhibits p1 and p2 any probative value or any weight whatsoever in accordance with Section 92 (1) of the Evidence Act.

Counsel to the 3rd and 23rd Respondents submitted that the trial Tribunal was perfectly in Order in the way and manner it considered Exhibits p3 to p7. Counsel referred to the holding of the trial Tribunal at pages 206 – 207 of the record of proceedings on the disputed exhibits p2 and p6 and contend that the findings of the Tribunal is a proper finding of law in the circumstances of the matter reference made to IBRAHIM V. SHAGARI (2007) 3 EPR 99.

Further counsel to the 3rd to 23rd Respondents contends that if the petitioner proved his case of the 1st Respondent not having been elected by a majority of the lawful votes cast in the elections held on 14th April, 2007 into the Bakori Constituency (which is not conceded), the law is that a candidate cannot have the election nullified on grounds of irregularities such as the one leading to alleged falsification of results as in the instant matter unless the candidate is proved to have authorized the illegalities/irregularities reference made to BUHARI V. OBASANJO (2005) 8 MJSC. It is further the submission counsel in the 3rd to 23rd respondents that the judgment of the trial Tribunal accords with the law and was neither perverse nor unsupported by the facts and evidence led by the parties before it. That it is the law that the Honourable court will only intervene to set aside perverse findings of a lower court, in this instance the findings of the Tribunal were proper, correct and in accordance with the law, reference made to CHIEF VICTOR WOLUCHEM and ORS V. CHIEF SIMON GUDI (1981) SC 291. Counsel urged us to resolve the singular issue in favour of the 3rd to 23rd respondents.

The main complaint of the appellant in this appeal is that despite the fact that the lower Tribunal agreed that a mere look at Exhibit p6 discloses a glaring case of alteration of figures even without comparing it with Exhibit p2. Exhibit p6 is INEC form EC8B (1) summary of result for Barde/Kwantakwaram ward, yet the lower Tribunal dismissed the appellant’s petition on the ground that the appellant failed to prove the allegation of alteration of result beyond reasonable doubt.

From the onset it is necessary to state the following facts which were duly admitted by the appellant and the petitioner, the facts runs thus:-

1. That Bakori constituency consists or is made up of eleven wards, where elections into the House of Assembly were conducted by the 23rd respondent (INEC) on the 14th day of April, 2007.

ii. That the 1st respondent won overwhelming majority law votes in ten out of the eleven wards of Bakori constituency more that the petitioner/appellant and the third candidate of Action Congress.

iii. That the dispute or complaint of the petitioner/appellant relates or pertains only to the election results declared in the Barde/Kwantakwaram ward made up of eighteen polling units or stations.

iv. That the complaint of the petitioner/appellant was not that the results from any of the eighteen polling booths or station as reflected in forms EC8A (1) tendered and marked as Exhibits p4 and p5 respectively were altered but that the summary of the entire election results as recorded or collated in form EC8B (1) by the Barde/Kwantakaram returning officer (tendered and marked as Exhibit s p2 and p6 respectively were altered.

v. That Exhibit p2 (form EC8B (1) which is the Summary of the entire election results from the eighteen polling booths or stations in the Barde/Kwantakwaram ward tendered by the petitioner/appellant to prove that he won majority of lawful votes cast was only signed by the petitioner/appellant’s Agent (pw1 – Dan Asabe Bako) without the signatures of Agents of the two other contestants i.e. the 1st respondent and the Action Congress candidates. Neither was it also in compliance with Section 75 of the Electoral Act,2006 with regard to it being duly stamped or signed by the 4th Respondent, the Barde/Kwantakwaram ward returning officer.

On the issue of alteration, the trial Tribunal at pages 205 to 207 made the following findings

“A comparison of Exhibit p2 with Exhibit p6 show that the results recorded therein are not the same while Exhibit p2 show the total results as follows:

AC = 935; ANPP = 991; PDP= 2962; Exhibit p6 as tendered by INEC officials showed the following scores: AC = 935; ANPP = 2440 and PDP = 2762.

What is more, a mere look of Exhibit p6 discloses a glaring case of alteration of figures even without comparing it with Exhibit p2. For purposes of clarity, shown below are the easily identifiable cases of alteration in the said Exhibit p6 which is the summary of results- collated from the 18 polling stations in the ward.

1. Barde Primary School = the score of the ANPP was altered with figure “7” to read 719″ as against “49” shown in Exhibit p2.
2. LAYIN MAHATA = the score was alter by the addition of figure 1 to read 156 as against, 56 shown in Exhibit p2.
3. UNGUWAR DANBIRNI = the score of the PDP (petitioner) was altered with figure 0 read 016 as against 116 in Exhibit p2. That of ANPP was also altered to read 123 instead of 23.
4. RAFIN KARO = the scores of the ANPP was altered to read 132 instead of 37 as recorded in Exhibit p2.

The worst case scenario is found in the column for the total votes cast and this trend of alteration is made clear by the fact that the total votes, recorded for the three political parties in 9 out of the 18 polling stations did not tally with, their individuals scores. Also the total votes recorded for ANPP was altered from 901 to read 2440 while that of PDP was altered from 2962 to read 2762. Unfortunately however, the alteration was so badly done that it made it impossible for trial tribunal to add up the individual scores recorded in Exhibit p6 for ANPP and PDP to enable it ascertain the correct total figure. On the other hand, Exhibit p2 has no such alterations and the total scores recorded tallies with the individual scores of the parties”

Indeed the trial tribunal made a finding of fact that there was glaring alteration in Exhibit p6 the summary of results recorded in Exhibits p2 and p6 were the results from the eighteen polling booths in Barde/kwantakwaram ward admitted as Exhibits p4 and p5 respectively. Therefore to be able to know whether there was in fact alteration in Exhibits p2 and p6 and for their results to be recollated by the Election Tribunal as prayed for by the petitioner/Appellant, the contents of Exhibits p4 and p5 must be clear, legible and correctly stated.

In the instant appeal even though there appears to be some alteration in Exhibit p6, the trial Tribunal finds it extremely difficult and impossible to recollate the results in Exhibits p4 and p5 so as to add up the individual scores recorded in Exhibit p6 for the appellant and the 1st respondent in this regard the trial Tribunal at pages 206 to 207 of the record of proceedings made the following findings –

“To resolve the difference in the figures recorded in Exhibits p2 and p6 and to ascertain the actual votes scored by each of the contesting parties recourse could be had to Exhibits p4 and p5 which are forms EC8A (1) (summary of results from each of the 18 polling stations in Barde/Kwantakwaram ward) and from which Exhibits p2 and p6 were collected.

See NWABODO V. ONOH (2007) 3 EPR 180 at 188. Unfortunately however, this Tribunal could not get satisfactory information therein as regards the total valid votes cast in each of the polling stations due to the fact that most of the result sheets (which incidentally are carbon copies are either blank or the figures recorded on them too faint that it will not be possible to read them correctly and it is not for trial Tribunal to embark on a microscopic analysis of the possible total votes recorded in them.

In Exhibit p4 the following forms EC8A (1) fall in that category. Forms Nos. 027611; 027614; 027615; 027620; 027622; 027623; 027625; 027630; 027631; 027632; 028119. That is to say that the total results recorded in forms EC8A (1) for 11 out of 18 polling stations in the ward cannot be identified as they are not manifest on the result sheets.

In Exhibit p5 which is the carbon copies of forms EC8A(1) tendered through INEC, the following result forms were found to be blank and as such the total votes cast could not be ascertained to wit: 027614; 027615; 027630; 027631; 027632.

It was also observed by this Tribunal that while both Exhibit p5 and p4 have 18 forms EC8A (1) each reflecting the 18 polling units in Barde/Kwantakwaram wards. There is a glaring discrepancy in two of the Forms while in Exhibit p5 one of the Forms has NO.027629 there is no such corresponding Form in Exhibit p4. Similarly while in Exhibit p4 one of the Forms has No. 028664 there was no such corresponding number in Exhibit p5. To make matters worse, the polling stations they relate to are not apparent on the said Forms and this discrepancy speaks volumes about their authenticity or genuineness as it is not for trial Tribunal to ascribe them to any polling station. Courts are established to decide cases based on real facts and not to pontificate on imagined or hypothetical facts.

The above anomalies therefore renders it impossible for the Tribunal to identify or ascertain the total valid cast in each of the 18 polling stations that make up Barde/Kwantakwaram ward and thus discern the effect of the alteration made in Exhibit p6 as alleged by the petitioner. See IBRAHIM V. SHAGARI (2007) 3 EPR 99. Consequently while it is clear that there are alterations in Exhibit p6 the petitioner did not unfortunately adduce sufficient evidence to prove beyond reasonable doubt that the alterations was done to the detriment of the petitioner as to deny him the majority of the lawful votes cast in Barde/Kwantakwaram ward at the April 14th 2007 election in the Katsina State House of Assembly”.

It is manifest from the foregoing that the trial Tribunal made an in-depth and painstaking analysis and evaluation of the evidence before it, it made findings that there were indeed alteration of the results contained in Exhibit p6, and to resolve the difference in the figures recorded in Exhibits p2 and p6 and to ascertain the actual votes scored by each of the contesting parties recourse could be made to Exhibits p4 and p5 which are forms EC8A (1) summary of results from each of the 18 polling stations in Barde/Kwantakwaram ward and from which Exhibits p2 and p6 were collected but the trial Tribunal could not get any satisfactory information in Exhibits p4 and p6 as regards the total valid votes cast in each of the polling stations due to the fact that most of result sheets which are carbon copies are either blank or the figures recorded on them too faint that it will not be possible to read them correctly and the Tribunal held that it could not embark on a microscopic analysis of the possible total votes recorded in them, these anomalies therefore renders it impossible for the tribunal to identify or ascertain the total valid votes cast in each of the 18 polling stations that make up Barde/Kwantakwaram ward and thus discern the effect of the alteration made in Exhibit p6 as alleged by the petitioner/appellant. The Tribunal therefore came to the conclusion that while it is clear that these are alterations in Exhibit p6 the petitioner/appellant did not unfortunately adduce sufficient evidence to prove beyond reasonable doubt that the alterations were done to his detriment as to deny him the majority of the lawful votes cast in Barde/Kwantakwaram ward at the April 14th 2007 election in the Katsina State House of Assembly.

Also it is the findings of the tribunal that there is a glaring discrepancy in both Exhibit p4 and p5, the Exhibits have 18 Forms EC8A (1) each reflecting the 18 polling units In Barde/Kwantakwaranl Ward. While in Exhibit p5 one of the Forms has No. 027629 there is no such corresponding form in Exhibit p4. Similarly in Exhibit p4 one of the Forms has no such corresponding number in Exhibit p5 and the polling stations they relate to are not apparent on the said Forms.

In the instant appeal it is very clear that the trial tribunal has made a through and in depth evaluation of the evidence adduced before it and made its findings thereon. The attitude of the appellate court to evaluation of evidence by the trial court is stated by the supreme court in CHIEF VICTOR WOLUCHEM and ORS V. CHIEF SIMON GODI (1981) 5 SC 291 at 326 where NNAMANI, JSC stated thus:-

“It is now settled that if there has been a proper appraisal of evidence by a trial court, a court of appeal ought not to embark on a fresh appraisal of the same in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore if a court of trial unquestionably evaluates the evidence, it is not the business of the Court of Appeal to substitute its own views for the view of the trial court”.

In the appeal at hand I am of the view that the lower Tribunal has unquestionably evaluated the evidence before it and made its findings and it has not been shown that the findings are perverse or unsupported by evidence accordingly the sole issue formulated for determination is resolved against the appellant in favour of the respondents.

On the whole, this appeal lacks merit. It is hereby dismissed.

The decision of the lower Tribunal is affirmed. A cost of N=20,000.00 is awarded to the 1st respondent and 3rd to 23rd respondent each.

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Other Citations: (2008)LCN/2979(CA)