Senator Godwin & Anor. V. Ikedi Godwon Ohakim & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

SAKA ADEYEMI IBIYEYE, OFR, J.C.A.

The governorship election in Imo State was conducted on 28/4/2007 by the 2nd Respondent (INEC). The Petitioner and the 1st Respondent were amongst the sixteen (16) candidates who contested the election.

At the conclusion of the exercise, the 3rd Respondent, being the returning officer, returned the 1st Respondent as duly elected Governor of Imo State.

The Petitioner, who came second in the election, dissatisfied with the return of the 1st Respondent on 24/5/2007, filed a petition at the lower tribunal against the 1st Respondent and 3,892 others. Amongst the Respondents are Independent National Electoral commission (INEC), the Resident Electoral commissioner, Imo State, and some electoral officials who conducted the election.

The Petition is predicated on two grounds as clearly set out in paragraph 8 and state as follows:-

“The Petitioner brings this petition on the following grounds, namely:

(i) That the return of the 1st Respondent is void by reason of corrupt practices and non-compliance with the provisions of the Electoral Act, 2006.

(ii) 1st Respondent was not duly elected by majority votes cast at the election.”

The facts in support of the grounds were set out in the 43 paragraphs petition at the end of which the following reliefs were sought in paragraph 44 thereof:-

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

(ii That the 1st Respondent did not score the majority of the valid votes cast at the election.

(iii) That the petitioner scored the majority of valid and lawful votes and secured 25% of the votes cast in at least 2/3 of the Local Government Areas in Imo State and ought to be duly returned as elected.

(iv) That the petitioner be declared as elected and returned as winner of the election OR

(v) That a bye election be held in the 9 Local Government Areas complained of by petitioner.”

Both the 1st and 2nd sets of respondents filed their replies to the petition on 21st June, 2007 following which the petitioner filed a reply to the 2nd set of respondents Reply on 30th June, 2007.

The contention of the petitioner as clearly set out in his petition was that elections were duly conducted in most parts of 18 out of the 27 Local Government Areas in Imo State. The petitioner claimed that the election in the remaining 9 Local Government Areas, namely: Ideato North, Ihitte Uboma, Ikeduru, Isu, Njaba, Nkwerre, Obowo, Orlu and Orsu were vitiated by violent snatching of electoral materials, corrupt practices, short supply of voting materials to. polling stations, disenfranchisement of large number of voters, deliberate withholding of result sheets and general non-compliance with the Electoral Act perpetrated by the agents of the Respondents in collaboration with known and unknown persons.

The respondents on their part claimed that the April 28th, 2007 Governorship elections were completely peaceful, orderly, free and fair and devoid of any malpractice in all the 27 Local Government Areas of the State. They claimed that the results declared by the 2nd Respondent were the true out come of the elections.

On the one hand and for the purpose of proving his case, the petitioner testified in person and called 46 other witnesses. A total of 189 Exhibits were also tendered on behalf of the petitioner. On the other hand the 1st respondent did not testify but how ever called 13 witnesses. While two exhibits were tendered through the witnesses, 28 were by his counsel from the bar. The 2nd set of respondents called only one witness and tendered, 29 Exhibits.

On the 7th March, 2007, the learned tribunal Judges upheld the election and the declaration by the Independent National Electoral commission which returned the 1st respondent as the winner thereof. In its entering judgment for the Respondents and dismissing the petitioner’s petition therefore the tribunal at page 2216 of the printed record found and held as follows:-

“Based on the foregoing scores, we find and hold that the 1st Respondent obtained the majority of lawful votes cast in the 27 Local Government Areas of Imo State in the April 28, 2007 Governorship election in Imo State. We also find and hold that the 1st Respondent scored 25% of the votes cast in at least 2/3 of the 27 Local Government Areas in Imo State and was duly elected and returned as the Governor of Imo State. In the light of the foregoing the 2nd issue is resolved against the petition, and the petition is accordingly dismissed.”

For the convenience of the identification of the parties, their nomenclatures at the lower tribunal would be maintained as appellant for the petitioner, while the 1st respondent will be so designated with the Independent Electoral Commission and the other respondents as 2nd set of Respondents.

The Appellant, being dissatisfied with the verdict and decision of the lower tribunal, filed a Notice of Appeal against the judgment on the 25th day of March, 2007 and raising 21 grounds of appeal with the indication that further grounds of appeal shall be filed upon receipt of the judgment of the tribunal and the record of appeal thereof.

On the 10th February, 2009, when this appeal was called up for hearing before us, prince L.O. Fagbemi SAN, led a hosts of his learned brothers silk and other counsel appearing for the appellant. The learned senior counsel chief Ben Nwakanma and Livy Uzoukwu Esq. SAN each also led a host of counsel on behalf of the 1st and, 2nd sets of respondents respectively.

In compliance with the decided authorities in particular the case of Nsirim v Nsirim (1990) 3 NWLR (Pt.138) 285 both learned senior counsel for the respondents for purpose of exoneration and right forward thinking promptly moved the court to first argue the preliminary objections raised and which same were imbedded in their respective briefs of arguments. In the said authority under reference supra, the apex court per Obaseki, JSC at pages 296-297 had this to say:-

“The respondent in the instant appeal has contended that although the objection was stated in-the brief the court was not moved at the oral hearing of the appeal to strike out the grounds for failure of particulars of error. He therefore submitted that the appellant herein should be taken to have abandoned the objection more so as it was not an issue for determination in the appeal before the court of Appeal. In my opinion, there is contention of the Respondent. Being a preliminary objection, the objection should have been by the hearing of the appeal so that heard by the court. While notice of objection may be given in the brief, it does not dispense with the need for the Respondent to move the court at the oral hearing for the relief prayed for. This preliminary objection not having been raised and argued at the oral hearing the Court of Appeal cannot be condemned as having erred in allowing the then appellant (now respondent) to argue his appeals.” (underlining is for emphasis.)

In the circumstances, all the preliminary objections concerning the grounds of appeal filed by the appellants in that case of Nsirim under reference were thereby disposed of. The respondents by first raising their preliminary objections in the appeal before us were therefore on the right footing as there could not have been a better time for so doing. The learned senior counsel Chief Nwakanma in the pursuit of his client’s case therefore drew the court’s attention to their notice of preliminary objection dated and filed on 21st October, 2009 and which arguments in respect were imbedded in their amended brief also dated and filed the same 21st October, 2008. Learned counsel adopted and copiously relied on the arguments in support at pages 6-13 of the brief in question and urged that the objection be upheld and that grounds 19 and 20 of the grounds of appeal as well as issues 3 and 4 formulated therefrom should all be struck out.

Mr. Uzoukwu SAN on behalf of the 2nd set of respondents in the same vein related to their notice of preliminary objection dated 20th and filed 21st October, 2008. The notice of objection is contained at pages 1-3 while the arguments are at pages 4-21 of the amended brief under reference supra. Learned senior Counsel therefore urged that grounds 19, 20 and 21 of the notice of appeal, as well as issues 3 and 4 predicated thereon and also the appellant’s amended brief of argument, should all be struck out.

Prince Fagbemi of senior counsel and on behalf of the appellant in response also adopted and relied on their reply briefs to the 1st and 2nd sets of Respondents’ preliminary objections dated 23rd and filed 24th October, 2009 and urged that the objections be dismissed especially where the respondents did not complain that they were in any way misled.

Further To and on the propriety of lumping together of Interlocutory decision and final judgment, which was not conceded to in this case’ learned senior counsel for the appellant relied on the case of Okobia v Ajanja (1998) 6 NWLR (Pt.554) p.348 at 360. Counsel urged us to therefore adopt the position of doing substantial justice and consequently dismiss the preliminary objection raised.

Deductively, the gravamina of the respondent’s preliminary objections are centered around grounds 19, 20 and 21 of the appellant’s grounds of appeal. In other words and succinctly put, that the first two grounds are not targeted at any ratio decidendi of the judgment of the lower tribunal but are merely commentary thereon and hence do not qualify as grounds of appeal.

For the proper understanding and comprehension of the nature of the preliminary objections raised by both sets of respondents, the reproduction of the notice and grounds predicated thereupon in respect thereof are paramount and necessary with that of the 1st respondent taking the lead:-

“(1) that grounds 19 and 20 of the grounds of appeal filed on 25.3.2008 are vague and incompetent;

(2) that the Appellant’s amended brief of argument filed on 26.6.2008, or a part of it, is incompetent in the following respects:-

(a) the Appellant’s issue (iii) incorporates the incompetent ground 19;

(b) the Appellant’s issue (iv) incorporates the incompetent ground 20;

(c) the appellant’s issue (iv) incorporates argument on the abandoned interlocutory appeals;

(d) the amended brief offends the provisions of order 17, Rule 3(4), Court of Appeal Rules, 2007 and paragraph 6(b) of the Practice Direction No. 2 of 2007.”

On behalf of the 2nd set of respondents and also almost identical to that of the 1st respondent, their notice of preliminary objection was predicated on the following grounds:-

“1. That Grounds 19 and 20 of the said notice of appeal dated 25th March, 2008 and filed same day are general in terms, vague, and/or devoid of particulars.

2. Ground 21 cannot be relied upon to challenge specific findings made by the tribunal and or raise issues of errors in law.
3. The Appellant’s issue 3 was distilled from both competent and incompetent grounds of appeal.
4. The Appellant’s issue 4 which is a duplication of issue 3 was distilled from incompetent grounds of appeal.
5. The Appellant’s said issue 4 also incorporates arguments in respect of interlocutory matters not the subject of the appeal hereof.
6. The Appellant’s amended brief of argument wherein incompetent issues were argued is therefore equally or partly incompetent.”

For the purpose of substantiating the 1st respondent’s grounds of objection his learned counsel, Chief Ben Nwakanma SAN, submitted that the incompetent nature of grounds 19 and 20 of the grounds of appeal as being vague especially in the light of order 6 rule 3 of the Rules of Court 2007 which deals with the impropriety of filing vague grounds of appeal. Learned senior counsel in summary re-iterated the failure of the purported complaint therein for not being directed at any particular ratio decidendi in the judgment of the tribunal. That each of the grounds rather sounds like a general commentary. Learned senior counsel in support cited the authority in the decision of Etuluku v N.B.C. Plc (2004) 15 NWLR (Pt.896) 370, at 386-7. Also cited was the case of C.B.N. v. Okogie (2002) 8 NWLR (Pt.768) 48 at 61 a Supreme Court decision. Learned senior counsel therefore urged that grounds 19 and 20 of the grounds of appeal are incompetent and should be struck out.

Further more and with the conclusion arrived at in respect of ground 19 supra, the learned senior counsel also submitted the infliction of issue (iii) in the appellant’s amended brief which incorporates the incompetent ground 19. The counsel to further buttress his submission referred to the authority in the case of Kadzi Inter. Ltd. v Kano Tannery Co. Ltd. (2004) 4 NWLR (Pt.864) 545 at 563; also the decision of this court in Appeal No. CA/PH/EPT/489/07: All Progressive Grand Alliance v Ikedi Ohakim & 2 Others (unreported) and delivered on 15/4/2008. The learned senior counsel, on the authority of the decided cases therefore urged that this court strike out issue (iii) in the appellant’s amended brief of argument. That the same argument advanced in respect of issue (iii) was also applicable against issue (iv) which was distilled from both incompetent grounds 20 and 21 of the grounds of appeal.

Further still and on issue (iv), the learned senior counsel contended its incorporation of argument on the abandoned interlocutory appeals. Reference was made to the ruling of this court delivered on 17/6/2008 wherein, it was found as a fact that the interlocutory appeals had been abandoned. The said appeals in point were CA/PH/EPT/170/2008 and CA/PH/EPT/171/2008. Consequently, that the appellant had in the circumstance wrongfully smuggled into the amended brief, argument which he had canvassed in support of the interlocutory appeals which were contained in the original brief. That by certain paragraphs of the appellant’s amended brief of argument in respect of interlocutory matters relating ruling of the tribunal on competence of defence witnesses and reception of documentary evidence, the leaned senior counsel argued same as fatal and improper. This he garnered in that an appellant is not permitted to present argument on both valid and invalid grounds of appeal put together or matters upon which there is no appeal. That the consequential effect in the circumstance is to strike out the whole argument and the issue formulated. Again, the case of Kadzi International Ltd. and APGA v Ohakim (supra) as well as Korede v Adedokun (2001) 15 NWLR (Pt.736) 483 are relevant in support’ counsel in further submission argued that in view of the ruling of this court in CA/PH/172/2008 wherein it held that interlocutory appeals could not be consolidated with the main appeal, the appellant’s amended brief of argument has been rendered incompetent and liable to be struck out on the authority of Korede v Adedokun (supra).

The learned senior counsel also in the alternative urged that issue (iv) of the appellant’s amended brief of argument be struck out for being tainted and incompetent.

The last objection by the 1st respondent is against the appellant’s amended brief of argument which is alleged to offend the provisions of order 17 rule 3(a) of the Rules of court and paragraph 6(b) of the practice Directions No.2 of 2007. In other words, that the appellant’s amended brief of argument did not end with a conclusion containing a numbered summary of the reasons or points upon which the argument in the brief is founded or at all. That it is a grievous transgression of the clear provisions of order 17, rule 3(4) of the rules and paragraph 6(b) of the practice Direction. That on the authority of Ezeanah v Atta (2004) 7 NWLR (Pt.873) 468 at 502 the rules of court are to be obeyed. That the amended brief of argument in the circumstance is therefore incompetent and should be struck out.

The learned senior counsel, Mr. Livy Uzoukwu, for the 2nd set of respondents, submitted generally along the same line with that on behalf of the 1st respondent. He copiously drew the court’s attention to order 6 rules 2(2) and (3) of the rules of court and branded grounds 19 and 21 being in breach of the said rules of court under reference. Learned senior counsel in support cited the authority in the case of Adesina v Adeniran (2006) 18 NWLR (Pt.1011) 359 at 369, that the particulars and the nature of error or misdirection must not be a matter of speculation or be lacking in specify and that grounds 19 and 20 of the grounds of appeal are incurably defective and incompetent and therefore should be struck out.

On the status of ground 21 of the grounds of appeal, which is omnibus, the learned senior counsel contended that same cannot be relied upon to challenge specific findings made by the tribunal or raise issues of errors in law. That apart from arguments challenging interlocutory decisions, the main thrust of issue 1 was directed at specific findings made by the lower tribunal in respect of the 9 Local Government Areas where the appellant on the one hand claimed that no election took place; and on the other hand proceeded to concede in respect of the 9 Local Government Areas that election duly took place. That no challenge or complaint can be validly or competently directed against those specific findings of the tribunal based on an omnibus ground of appeal or even the incompetent ground 20. The learned senior counsel in-substantiation cited the cases of Opara v D.S. (Nig) Ltd. (2006) 15 NWLR (Pt.1002) 342 at 363 and umana v Attah (2004) 7 NWLR (Pt.871) 63 at 87-88. That the resultant outcome is that ground 21 is incompetent for purpose of challenging specific findings made by the tribunal.

Submitting on the competence of issues 3 and 4, the learned senior counsel also associated himself with his brother silk for the 1st respondent, chief Nwakanma, and submitted that both issues should be struck out especially wherein issue 4 has no bearing to ground 20.

The further objection raised and also flowing from issue 4 was equally a line of contention by the 1st respondent relating to the incorporation of arguments in respect of interlocutory matters which are not the main subject of the appeal hereof. That in the instant appeal, the issues, submissions and complaints contained in the amended brief are neither covered by any of the grounds 20 and 21 of the grounds of appeal nor any other ground whatsoever in the notice of appeal. That the said issue 4, in the same vein and as argued by the 1st respondent’s counsel is grossly incompetent and should also be struck out.

The learned senior counsel on his deductive summary of the appellant’s brief of argument strongly challenged the impropriety of the inclusion of interlocutory decisions which he contended were spread out in the appellant’s issues 2-4. Reference in particular were made specifically to certain paragraphs in issue 2 and urged as a consequence that the said brief be struck out for incompetence.

In an identical response to both sets of respondents’ preliminary objections, the appellant in clear terms and without mincing words, submitted the preliminary objections as misconceived, untenable and therefore urged that the court should dismiss same as lacking in merit. That the contention that some of the grounds of appeal are vague is a misconception. That the essence of the provisions of the rules is to ensure that the appellant’s complaints are clear to the respondents. The learned senior counsel argued that the concept of inelegance is not a relevant consideration for the determination of the rights of the parties on the merits. Further more, that the respondents have not shown that the grounds complained of were capable of misleading them. The senior learned counsel in support of his submission cited the case of E.A. Garuba v Kwara Investment Co. Ltd. & Ors. (2005) 1 SCNJ page 290 at 297-298 also the case of Aderounmu v Olowu (2002) 4 NWLR (Pt.652) p.253 at 272. That the grounds of appeal 19 and 20 complained of are very competent having complied with the rules of court and identified the issues in controversy.

On the contention by the respondents that the appellant incorporated arguments in respect of which he also had interlocutory appeals which were abandoned, the learned senior counsel in denying the argument submitted that the issues were clearly distilled from substantive grounds of appeal against the final judgment which are legitimate complaints against the said decision. The learned senior counsel cited in support the case of First Bank of Nigeria Plc v Tsokwa (2003) FWLR (Pt.153) at 222-223. That the ruling of the lower court which was made subject of the two grounds of appeal nos. 2 and 3 appertains to wrongful admission or wrongful exclusion of evidence. That having not been appealed against by the appellant before trial judgment was handed down, it then became part of the main or substantive trial and therefore not interlocutory in nature. That from a plethora of decided authorities, a ground of appeal from a final judgment in an election petition incorporating a complaint against an interlocutory decision given in the course of a trial is competent. On the contravening nature of the appellant’s amended brief of argument, the learned senior counsel submitted the complaint at best, as cosmetic, bordering on- style and elegance. That an inelegant brief of argument will not prevent a court from doing justice to the matter placed before it; and also, that it is never a ground to strike out such a brief. A host of authorities inclusive of N.P.A. v Eyamba (2006) All FWLR (Pt.320) p.102 at 1040 and Obiora v Osele (1989) 1 NWLR (Pt.97) 279 at 296 were cited by the learned senior cojnsel to buttress the contention.

The cornerstone of the preliminary objection is anchored on the competence of grounds 19 and 20 of the grounds of appeal which are alleged as not being targeted at any ratio decidendi of the judgment of the lower tribunal. In other words, that they are mere commentary on the judgment and therefore do not qualify as grounds of appeal within the provisions of the rules of court.

As a pre-requisite to determine the first leg of the preliminary objection relating to vagueness and incompetence of the said grounds 19 and 20 of the grounds of appeal, the reproduction would be of significance for clearer comprehension:-

“19. The judgment of the tribunal is perverse and manifestly insupportable being fraught with inferences and side comment which have no logical bearing on the proper evaluation of the issues and evidence proffered.

20- The tribunal misdirected itself in law when it dismissed the petitioner’s case instead of sustaining same based on majority of lawful votes cast at the election when the Petitioner had satisfied other legal requirement (sic) to have him declared as the winner of the election and this has occasioned a gross miscarriage of justice to the Appellant.”

It is trite law which needs no further restatement but indeed very elementary that our rules of court on the nature of a competent ground of appeal is very on-toward and explicit. In other words, the ground must satisfy the basic and mandatory elements, so as not to leave anyone, especially the court and/or the respondent, in any doubt whatsoever, as to what the complaint against the decision of the lower court is all about.The respondent in particular must certainly not be left in the dark as to what he is expected to meet in the appellate court. The appellant, as the perpetrator of the complaint, therefore, bears the onus to ensure that his grounds of appeal are prima facie clear, explicit and should in no way leave the respondent to grabble the subjective figuration for the purpose of finding out the complaints and also the relief sought by the appellant. The absence of clear cut grounds of appeal invariably gives rise to vague and unascertained complaints. The governing rule of court on the nature of a competent ground of appeal is order 6 rules 2(2)-(3),3 and 4 of our Rules of court 2007 which same reproduced state as follows:-

“2(2) Where a ground of appeal alleges misdirection or error in law the particulars and the nature of misdirection or error shall be clearly stated.

(3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.

3. Any ground which is vague or general in terms or which discloses no reasonable grounds of appeal shall not be permitted save the general ground that the judgment is against the weight of evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court of its own motion or on application by the respondent.”

Rule 4 under the same order further forbids an appellant from being heard on any issue or matter alien and outside his grounds of appeal save however with the leave of court.

On a close analysis of the said grounds 19 and 20 of the grounds of appeal earlier reproduced, the former raises a complaint that the judgment was fraught with inferences and side comments that have no bearing on the proper evaluation of the issues and evidence proffered. For the purpose of expatiation, the ground did not further explain what the inferences axe and also the nature of the side comments. The issues and evidence proffered are also not specified.

Ground 20 of the grounds of appeal is also plagued with the same vice of puzzling questions demanding the explanation of what other legal requirements the appellant claimed to have satisfied.

The appellant’s approach for all intents and purpose is subjective and not objective in nature. The debunking of the working of his mind which is contained within himself is completely out of the physical reach but perhaps metaphysical, as the popular saying goes that even the devil does not know the intention of a man’s mind. This obviously is not within the contemplation of the provision of our rules, especially order 6 rule 2(2) which requires that, for the sustenance of the contemplated complaint, the misdirection alleged must clearly state the particulars and the nature of the said misdirection or error. It is significant to echo that no particulars are stated and enlightening the said grounds of appeal. Further more by the use of the word shall against vague or general terms in a ground of appeal as specified by Order 6 rule 3 of our rules, it confirms the absence of latitude which would not be taken as a matter of course but the need for strict compliance. The learned appellant’s senior counsel in his submission cited the authority in the case of Aderounmu v Olowu under reference, supra, wherein their Lordships of the Apex court at page 272 held:-

“These provisions spell out what are required of a ground of appeal and the purpose is to ensure that the Respondent is not taken by surprise. Once therefore, a ground of appeal clearly states what the appellant is complaining about and there is compliance with the rules of court, it cannot be described as bad and incompetent.”

The same principle of law was also applied in the case of Hambe v Hueze also under reference supra.

In restating the essence of the provisions of the rules in the said authorities supra it is to ensure that the complaint of the appellant is clear to the respondent. The corollary therefore holds, that is to say, that a ground is merely inelegant is not a relevant consideration for the determination of the rights of the parties on the merit. This, is, as rightly submitted by the appellant’s senior counsel. The determinant factor for competence presupposes that the said grounds in question must clearly state the grouse of the appellant’s complaint which must strictly also be in compliance with the rules of court. The said expectational conditions cannot, with due respect, be compromised or sacrificed at the alter of relegating same to a mere technicality as portrayed and contended by the appellant’s senior counsel.

In dealing with a provision that is in pari materia with order 6 rule 3 of our rules, this court in Adesina v Adeniran (sup ra) at page 369 held, amongst others as follows:-

“A ground of appeal is vague when it is not precisely, clearly or definitely expressed or stated as when it is couched in a manner that does not provide any explicit standard for it being understood, or when the complaint is not defined in relation to the subject, or when it is not particularized or the particulars are clearly irrelevant. The consequence is that such a ground will be struck out for being incompetent. See A.W. (Nig.) Ltd. v. Supermaritime (Nig.) Ltd. (2005) 6 NWLR (Pt.922) 563; Governor of Ekiti State v. Osayomi (2005) 2 NWLR (Pt.909) 67.”

The same principle of law was also applied in the Etuluku v N.B.C. Plc. under reference supra.

Further still, on the particulars and the nature of error or misdirection that will suffice, the Apex court per Akpata JSC in the case of Globe Fishing Industries Ltd. v Coker (1990) 7 NWLR (Pt.162) 265 at 300 held:-

“The particulars and nature of the error or misdirection alleged in a ground of appeal which are required to be specified-by order 8 rule 2(2) are the specific reasoning, findings or observations in the judgment or ruling relating to or projecting the error or misdirection complained of. They are in a sense the itemization in the judgment or ruling.”

As rightly submitted and argued by the learned senior counsel for the 2nd set of respondents therefore, such particulars and the nature of error or misdirection must not be a matter of speculation or lacking in specifity.

It is trite law that a ground of appeal must be against a decision and should challenge the validity of the ratio; in other words the ratio decidendi. Any ground of appeal at large cannot therefore suffice as competent. Relevant in support is the decision in the case of Attorney General of Oyo state v Fairlakes Hotel Ltd. (1989) 5 NWLR (Pt. 121) P.255. Also the case of Ngige v Obi (2006) 19 NWLR (Pt.999) 1 at 240 wherein it was held that:-

“An appeal is against the decision of a lower court and a challenge to the validity of that decision. Stretched further, an appeal is always against the ratio of a lower court’s decision and can never be at’ large. see Saraki v Kotoye (1992) 9 NWLR (Pt.264 /156, ………. Oba v Egberongbe (1999) 8 NWLR (Pt.615) 485 at 489 and Orugbo v Una (2002) 16 NWLR (Pt.792) 175 at 206-207.”

A ground of appeal therefore presupposes the existence of a court’s decision. See Egbe v Achaji (1990) 1 NWLR (Pt.128) 56. Further more, a ground of appeal that is not related to, or challenge the validity of any ratio decidendi in the judgment on appeal is incompetent and is liable to be struck out. See Ogunbiyi v Ishola (1996) 6 NWLR (Pt.452) 12. Having regard to the objection raised on grounds 19 and 20 of the grounds of appeal, which have been reproduced earlier in the course of this judgment, it is crystal clear that the purported complaint therein respectively are not only vague but also obviously not directed at any particular ratio decidendi in the judgment of the lower tribunal. Each of the grounds as rightly submitted by the learned senior counsel for the 1st respondent, sounds zombiec and like a general commentary. This obviously runs very counter to the provisions of Order 6 rule 3 of our rules of court and consequent to which both grounds being grossly incompetent are accordingly struck out for incompetence.

The second set of respondents’ grouse or objection also relates to ground 21 of the ground of appeal which is omnibus. While the said respondents argued that the ground 21 cannot be relied upon to challenge specific findings made by the tribunal or raise issues of errors in law, the appellant in summary submitted the contention as totally misconceived.

With reference to the appellant’s amended brief of argument, issue 4 was distilled from grounds 20 and 21 of the grounds of appeal. The main thrust of issue 4 as can be deduced from pages 39 – 132 of the said amended brief was directed at specific findings made by the lower tribunal in respect of the 9 Local Government Areas where the appellant claimed no election took place; a further direction was also made to the 18 Local Government Areas where the appellant conceded that election duly took place. Deducing also from the judgment of the lower tribunal, it is obvious and apparent on the printed records that it made copious findings of law and facts relating to the election in the 9 Local Government Areas. It also equally made obvious findings, amongst others, on scores and figures in respect of the 18 Local Government Areas.

As rightly argued and submitted by the learned senior counsel for the 2nd set of respondents no challenge or complaint can be validly or competently directed against those specific findings of the tribunal based on an omnibus ground of appeal. On the authority of the decision in the case of Opara v D. S. (Nig.) Ltd. (2006) 15 NWLR (Pt.1002) 342 at 363 the Apex Court had this to say:-

“In Ndiwe v Okocha (1992) 7 NWLR (Pt.252) 129 at 139-140 it was held by this court that where the trial court makes a finding of fact on a specific issue before it, such an issue should be raised as a substantive ground of appeal by the appellant who is challenging the finding of fact and it cannot be covered under the omnibus ground of appeal.”

A further related authority on what an omnibus ground of appeal entails was the view pronounced in Umana v Allah (2004) 7 NWLR (Pt.871) 63 at 87-88 where it was held and stated that:-

“An omnibus ground of appeal is a complaint against the totality of evidence adduced before the court and not a complaint against a finding of fact on a specific issue or document which must be raised by a substantive ground of appeal. See B. P. (West Africa) Ltd. v Akinola Atlen (1962) 2 SCNLR 388, (1962) 1 All NLR 645, 650; Udeze v Chidebe (1990) 1 NWLR (Pt.125) 141, 158; Ajibona v Kolawole (1996) 10 NWLR (Pt.476) 22, 30-31; Nwokolo v Okagbue (1997) 4 NWLR (Pt.500) 436, 448; Nwankwo v Federal Republic of Nigeria (2003) 4 NWLR (Pt.809) 1, 40-41; and Omin v Etim (2003) 6 NWLR (Pt.817) 587, 607 and 613. From the principles evolved by a long line of authorities about the nature and scope of an omnibus ground of appeal by no stretch of imagination can issue (2) in the appellant’s brief of argument be distilled from the ground of appeal on omnibus ground of appeal which cannot accommodate complaint of a specific nature that must be raised by a substantive ground of appeal.

The appellant having formulated issue (2) conceived to be important to his appeal but without any complaint in form of a ground of appeal as a foundation that issue is worthless and cannot be made the basis of any argument contesting a judicial decision on appeal. Therefore issue (2) which is not formulated from any ground of appeal is parasitical and incompetent.”

The said issue was accordingly struck out.

The apex court per Mohammed JSC in the case of Bhojsons Plc v Daniel Kalio (2006) 5 NWLR (Pt.973) 330 at 348, also on the position of an omnibus ground of appeal had this to say:-

“The remaining ground, ground six is an omnibus ground of appeal. It is trite that there are several decisions of this court warning parties particularly those in desire to exercise their right of appeal that such parties cannot hide behind an omnibus ground of appeal to raise specific questions on matters like issues of damages in the absence of specific grounds of appeal raising the questions. See Ndiwe v Okocha (1992) 7 NWLR (Pt.252) 129 at 139-140.”

Further still and at pages 349-350 the learned jurist in the same decision went on and said:-

“It is trite and well settled that the court of appeal is only entitled to consider an appeal on the grounds of error of law or fact omitted by the trial court placed before the Court of Appeal in grounds of appeal filed. An appellant cannot without leave of court be heard on any other grounds. See Management Enterprises v Otusanya (1987) 2 NWLR (Pt.55) 179 and Ali v Akinloye (2000) 6 NWLR (Pt.660) 177 at 212. Definitely the court of appeal cannot pronounce on issue or finding on which the parties have not appeared against. See Olakunri (1990) 14 NWLR (Pt.638) 204 at 211.”

From the collective summary of the authorities (supra), an omnibus ground of appeal cannot be used to raise issues of errors of law; also in point is the case of Okori v Ude (2008) 10 NWLR (Pt.1095) 213 at 253. In the result, and as rightly submitted and argued by the learned senior counsel Mr. Uzoukwu therefore, the said ground 21 of the grounds of appeal is also incompetent for purpose of challenging specific findings made by the tribunal’ In other words, with the said ground being omnibus, it was being used in an improper perspective and consequent to which the preliminary objection raised in respect thereof is also sustained. The said ground thereupon is also struck out for incompetence.

The next trend of objection relates to the status of issues 3 and 4 and whether or not they can survive as competent especially in the light of the conclusion arrived at against the grounds of appeal no.19, 20 and 21. While the appellant’s issue 3 is distilled from both competent and incompetent grounds put together, the same cannot be said of issue 4, which is distilled from grounds of appeal nos. 20 and 21 which have been struck out for incompetence. It follows without much ado therefore that any issue formulated from the said grounds 20 and 21 would in the same vein be incompetent and therefore struck out. There cannot be a building without a foundation; attempting such would not only fall but surely crumble. Grounds of appeal serve the foundational base for issues to emerge. The latter cannot survive without the former. Issue 4 in the circumstance is incompetent and therefore accordingly struck out.

For the determination of the appellant’s issue 3 same is distilled from grounds 5, 6, 7, 11, 12, 13, 17, 18 and 19 of the grounds of appeal. The said issue 3 therefore incorporates the incompetent ground 19. While both the respondents submitted at great length on the incompetence of the said issue, the appellant did not see it relevant to address the issue in response thereto.

On the authority of the case of Kadzi International Ltd. v Kano Tannery Co. Ltd. under reference supra, a decision of this court per Salami JCA, it was held at page 563 that:

“Issue not deriving from a competent ground of appeal must be struck out. Both the ground and the issue deriving from it are struck out. See Tukur v Governor of Taraba State (1997) 6 NWLR (Pt-510) 549, 569. Ceekay Traders Ltd. v General Motors Co. Ltd. (1992) 2 NWLR (Pt.222) 132…….”

The appellant, having related to an issue viz issue 3 a competent ground and an incompetent ground, and argued them together renders the other ground incompetent. It is not the duty of court to separate axgument in respect of the good ground from those of the bad ones…………………”

This court while considering the same like question in its unreported decision in Appeal No. CA/PH/EPT/489/07; All Progressive Grand Alliance v Ikedi Ohakim & 2 others delivered on 15th April, 2008 supra, applied the reasoning arrived at in the case of Kadzi supra, and said:-

“It is trite law therefore that there cannot be a competent issue distilled from both competent and a non – existent ground of appeal.”

The same principle was also applied in the case of Ayalogu v Agu (1995) 1 NWLR (Pt.532).

Further still and for purpose of re-emphasizing the bonded relationship between grounds of appeal and issues, the latter must flow from the former, with the foundational basis being the decision or judgment complained against.

Again and in the same authority of Etuluku v N.B.C. Plc. for instance supra it was held at page 387 as follows:-

“…….. that issues for determination in an appeal must have direct bearing on the grounds of Appeal. Issues for determination expatiate, expand or edify grounds of appeal they act as mirrors reflecting the grounds of appeal. They are to project succinctly and clearly the substance of the complaints in the ground of appeal requiring resolution. Simply put, an issue an appeal must flow from a ground of appeal which itself must be related to the judgment appealed against. If the issue is not related to or raised in a valid ground, such an issue is valueless and cannot stand, being irrelevant. See Alubankudi v Attorney-General of Federation (2002) 17 NWLR (Pt.796) 338, Madiebo v Nwankwo (2002) 1 NWLR (Pt.748) 426; and A.P. Plc. v. Nivisco & Co. Ltd. (2001) 10 NWLR (Pt.720) 250.”

In the result and without having to over stretch the point for purpose of driving home further, it is sufficient to conclude that issues 3 and 4 for all intent and purpose are incompetent. In other words, while the totality of the grounds giving life to issue 3 have been infused and inflicted with the vice which rendered ground 19 incompetent, the foundational life wire of issue 4 is also non existent by reason of the incompetent nature of grounds 20 and 21 from which issue 4 was distilled.

Briefly and on the ground of objection relating to the incorporation in issue 4 of arguments in respect of abandoned interlocutory appeals, not the subject of the appeal, both sets of respondents’ senior counsel urged that the inclusion had rendered the appellant’s amended brief of argument incompetent and that the entire brief should in the circumstance be struck out. With the conclusion arrived at on the incompetent nature of issue 4 supra’ it would only amount to an academic exercise to dwell into the submissions and arguments of counsel on this objection and consequent to which all authorities cited on this subject would serve no further or any useful purpose’ That objection is therefore of no moment. I would however restate that the incompetence of issue 4 and the striking out thereof would not operate to vitiate the appellant’s entire amended brief in respect of which an order deeming same as filed and served was obtained on the 20th October, 2008. The brief in the main is very competent for purpose of appellant’s issues 1 and 2.

on the totality of the preliminary objection therefore, the same succeeds to the extent of rendering grounds 19, 20 and, 21 of the grounds of appeal as well as issues 3 and 4, predicated thereon, incompetent. This conclusion, however, contrary to the contention by the learned senior counsel to both sets of respondents, does not extend and affect issues 1 and 2 of the appellant’s amended brief of arguments.

On the merit of the appeal and at the hearing thereof, Prince Lateef Fagbemi, learned senior counsel for Senator Godwin Ifeanyichukwu Ararume adopted and relied on both the appellant’s brief as well as the reply brief’ The learned senior counsel briefly elucidated upon the said briefs. Chief Bon Nwakanma learned senior counsel for the 1st set of respondents also adopted and relied on the said respondent’s brief. In the same vein, the learned senior counsel, Mr. Livy uzoukwu also on behalf of the 2nd set of respondents adopted and relied on their said brief, earlier stated. Both respondents’ briefs contained notices of intention to rely on preliminary objections against some of the grounds of appeal which same had accordingly been dealt with. Both senior counsel for the respondents after due elucidation of their respective briefs urged on the merit of appeal that same be dismissed.

For the identification of the issues for determination on behalf of all parties, the reproduction of the following same serving the preliminary objections are of moment. In other words, the appellant’s issues 1 and 2 are:-

(i) whether Exhibits 192-220, 221-247, 249 and all the copies of forms EC8A tendered by DW14 were properly received in evidence by the Tribunal. (This is distilled from grounds 1, 2, 3, 4 and 15 of the final notice of appeal.).

(ii) Whether the tribunal below was justified when it decided based on statements of results forms EC8A produced by the DW13 that the 1st Respondent won the election. (Also distilled from grounds 8, 9, 10, 14, 16 of the final Notice of Appeal.)

With the declaration of grounds 19, 20, and 21 of the grounds of appeal as incompetent, the 4th and 2nd issues formulated by the 1st and, 2nd sets of respondents respectively being derived from the said grounds of appeal are automatically incompetent and struck out; issues (a), (b) and (c) by the 1st respondent and (i) by the 2nd set of respondents are the only surviving live issues calling for determination.

It is pertinent to state on the onset at this point that the 1st respondent’s issue one i.e. to say (a) is identical to that of appellant’s issue (i). Same also applies to the 2nd set of respondents’ lone issue (1).

I would not therefore deem it necessary to repeat same especially after having reproduced the appellant’s issue no.1, supra.

I would, however, reproduce the second and third issues i.e. (b) and (c) by the 1st respondent which are as follows:-

“(b) whether the tribunal gave due consideration to the evidence tendered in respect of the nine disputed local government areas. Grounds 5, 6, 7, 16 and 18.

(c) whether voters’ registers (Exhibits 163-171) had any probative value. Grounds 11 and 13.”

The appellant’s two issues axe closely interwoven and fused one into the other. The arguments on the two would therefore be taken together and consideration would also be given in the same manner for the determination.

From the totality of the petitioner/appellant’s case the grouse as fielded was that there was no conclusive election whatsoever in 9 local Government Areas namely: Ideato North, Ihitte Uboma, Ikeduru, Isu, Njaba, Nkwerre, Obowo, Orlu and Orsu. That all purported results in form EC8A emanating from those local government areas were put in issue. That the appellant called witnesses to prove his case that no results in forms EC8A were generated from the 9 local government areas in dispute; and also that despite his attempt to call 11 police and Security Agency witnesses to support his case, the lower tribunal erroneously and regrettably prevented him from doing so by its ruling of 21st January, 2008. Further more that having contended the absence of conclusive elections in 9 local government areas and with no statements of results in forms EC8 from the said 9 local government areas, the appellant had challenged the existence of any forms EC8A from the polling units in the 9 local government areas and thereby putting the respondents on notice to field the presiding officers of the various polling units in the 9 local government areas aforesaid to personally tender the purported forms EC8A in the custody of the respondents for the purpose of cross-examining them thereon. The appellant’s frantic ground of complaint was belted on lack of proper foundation laid before the election results, that is to say certified copies, were admitted in evidence. Specifically, the summary of the submission by the learned senior counsel culminating the appellant’s issues 1 and 2 were that the 1st respondent did not call one single presiding officer who functioned in any of the local government areas as a witness. Counsel argued further that the purported certified true copies tendered by DW14 as Exhibits 221-250 as well as Exhibits 192-220 earlier tendered by the 1st respondent do not qualify as certified true copies to be admissible in evidence. This he argued due to the absence of any due authority to keep custody and also to certify. The learned senior counsel at great extent also submitted on the refusal of INEC to allow the inspection of documents and this precluded the 2nd set of respondents from tendering the election results. That there was also no cogent explanation offered on the where abouts of the original copies of the result as a condition precedent to the tendering of certified copies. The learned senior counsel further alleged that wrong election result forms were also tendered and admitted.

In further total discrediting of the evidence of DW14 on the issue of certification, learned senior counsel also referred to the provisions of Section 73 of the Electoral Act 2006 read in conjunction with provisions of sections 111, 114 and 116 of the Evidence Act. Counsel further restated that under section 111 of the Evidence Act, it is only a public officer having custody of a public document that may certify same. Further more that under the said section 73 of the Electoral Act, 2006, it is the chief Electoral commissioner or any officer authorized by him that can keep official custody of all documents including statement of results relating to an election. He argued that the question whether any other officer is authorized by the chief Electoral commissioner to keep official custody of the document is a question of fact to be established as a foundation for the admissibility of any such document which is not certified by the chief Electoral commissioner himself.That such authority must be established by evidence in view of Sections 114(1) and 116 of the Evidence Act. That when any officer other than the Chief Electoral officer purports to certify results forms, there must be proof of due authority. That the certified true copies produced by DW14 did not satisfy these preconditions for the presumption of genuineness. That since Dw14 himself did not certify the documents which he claimed to be in his custody, the certification by one Timmy Kotoye, designated as Administrative secretary did not satisfy the requirements of Section 111 of the Evidence Act.

Consequently, that the presumptions in Sections 114(1) and 116 of the Evidence Act cannot therefore arise. That the appropriate authority to certify a document under Section 111 of the Evidence Act is the person having its custody thereof. That Timmy Koroye could not validly certify a document under section 111(1) of the Evidence Act, which document he did not have in his custody. His certification, counsel argued, only amounted to documentary hearsay. That the office of head of operations is unknown to the Electoral Act 2006 and the manual, Exhibit 173; and the Tribunal cannot therefore take judicial notice of the existence of such an office without proof’ Learned senior counsel submitted that the tribunal clearly misapplied section 111(2) of the Evidence Act and its conclusion runs contrary to the evidence of the witness DW14.

Learned senior counsel in further submission re-iterated that Exhibits 192 – 220 and 221 – 249 were improperly received in evidence, and that having been received in the face of serious opposition by the petitioner/appellant, the use made of them by the tribunal to the detriment of the appellant amounted to a gross miscarriage of justice. That this is made more damnable because the tribunal’s order upon the 2nd set of respondents to allow the petitioner, his counsel and Experts of his choice to inspect and take copies of the original results, was disobeyed by the 2nd set of respondents. That the 2nd set of respondents did not file copies of the documents with their reply as required by paragraph 2 of the Practice Directions. That by the operation of order 33 Rule 20(2) of the Federal High court (civil Procedure) Rules 2000, the consequential effect of refusing to allow the inspection of the documents had precluded the 2nd set of Respondents from using same. That the counsel for the 2nd set of respondents did not produce original result forms, but produced the same certified true copies which he later tendered through DW14. That what the petitioner had asked for and which the tribunal had ordered, was that he should be allowed to inspect the original results and take copies thereof. That exhibits 163-171 which were tendered by the petitioner/appellant’s learned counsel was certified true copies of voters register and not results. That since the 2nd set of respondents conducted the election in question and therefore kept all the original copies of the results, they were duly bound to tender the said copies of the results and to obey the order of the tribunal by allowing the petitioner to inspect them and take copies. That the 2nd set of respondents merely tendered Exhibits 221-250 in spite of the petitioner’s objection without giving any reasons why the originals could not be produced. That the failure to produce the originals and to have allowed the appellant to inspect them, had called for the invocation of Section 149(d)of the Evidence Act against the 2nd set of respondents therein.

In the result of the foregoing the learned senior counsel argued that those results which were unauthenticated by evidence of the makers should not have been used as the basis for declaring the 1st respondent the winner of the election, particularly when the certification was manifestly improper. That the tribunal did therefore err in admitting the said exhibits which were not frontloaded in the reply of the 2nd set of respondents as required under paragraph 2 of the Practice Directions. The learned senior counsel further submitted the innate failure by the lower tribunal in misplacing the burden of proof of the fact of non-delegation of the function of the Electoral Officer which he argued should have been on the witness Dw14 and not the petitioner/appellant. Learned senior counsel to buttress his submission and support, cited the authority in the case of Itauma v Ime (2000) 7 SCNJ Pg.49. He further urged this court to hold therefore that the tribunal misplaced the intent of the provisions of Section 135 of the Evidence Act and hence the burden of proof. That the tribunal was in further grave error when it held that the petitioner did not show (prove) that the results for the 5 local government areas mentioned in exhibit “172” were written out on the forms issued in Exhibit*172″.

Further more that in the light of the admission by DW14 that some result forms issued in Exhibit 172 were written out on the forms issued and which said exhibit speaks for itself one wonders what other mode of proof the tribunal had expected from the petitioner. It is settled law that what is admitted needs no further proof. The apex court’s decision in the case of Agbanelo v U.B.N. Ltd. (2000) 7 NWLR (Pt.666) 534 at 549 was cited in support. That it was wrong for the tribunal to have relied on form EC8A tendered by DW14 which had no watermark indices of authenticity, tendered by the DW14 in determining who won the majority of lawful votes cast at the election. That the evidence of DW14 concerning Exhibits 221-250 and the holding of the election in the 9 disputed local government areas was nothing but hearsay and ought to have been dismissed as such by the lower tribunal. Further still that the evidence before the said tribunal clearly showed and confirmed that there were no conclusive elections conducted in the 9 Local Government Areas in question. Learned senior urged on the totality of issues 1 and 2 that both be resolved in favour of the appellant.

In response to the appellant’s issues, the 1st respondent urged the court to examine with a view to relate and bring to bear the relevant pleadings of the parties to serve as a good starting point. The learned senior counsel, Chief Nwakanma, in particular drew the attention of the court to certain paragraphs of the petition by the appellant on the pleadings as well as the evidence adduced, both oral and documentary. Counsel argued that, with the averment that, election was duly held in 18 Local Government Areas, it was understood to mean that election was conducted in substantial compliance with the law. He cited in support the case of Ngige v Obi under reference supra. That the concomitance is that the election result declared by INEC is presumed authentic and reliable. The learned senior counsel rudimentarily referred to the 1st respondent’s reply especially where it was averred that free and fair elections were held in the 27 Local Government Areas in Imo State wherein the wards results in each of the 27 Local Government Areas were set out. That the contention in relation to the 9 Local Government Areas where it was alleged that no elections took place are vigorously challenged.

On the evidence admitted at the trial, the learned senior counsel restated that the appellant tendered his results and were admitted. Similarly, that the 1st respondent on the 10th January, 2008 further tendered his results forms EC8C, EC8D and EC8E, all certified true copies, and same were also admitted without objection and marked Exhibits 192-220. That in the same pattem, on the 25tr January, 2008 , the 2nd set of respondents through DW14 also tendered two documents, the forms EC8A and EC8B, wherein both were admitted without objection as exhibits 221 and 222 respectively. That thereafter, the result sheets for Aboh Mbaise Local Government Area comprising forms EC8A, EC8B and EC8C were tendered but objected to by the learned appellant’s senior counsel on the ground that they were not frontloaded with the rest of the respondent’s reply. That the tribunal overrued the objection and admitted the documents in evidence and marked them as Exhibit 223(1) – (130). That all other election results in respect of the other Local Government Areas were tendered and objected to on the same ground of non-front loading but overruled and admitted in evidence as Exhibits 224-250.

That there was no objection to the admissibility of the Respondents’ election results on the ground of improper certification, non-front loading or a similar reason and no appeal was lodged, or could have been lodged. That it was only during the address of learned counsel for the appellant in the tribunal that the issue of certification of election results was belatedly raised for the first time. That the case of Ngige v Obi cited by the appellant’s learned senior counsel (supra) is clearly distinguishable from the case under consideration. The learned 1st respondent’s senior counsel submitted their being on a firm ground when they tendered Exhibits 192-220 from the Bar, without objection from the appellant. The case of Daggash v Bulama (2004) 14 NWLR (Pt.892) 144 at 186-7 was again cited in support.

In respect of the documents tendered by DW14, learned senior counsel submitted that Section 9(3) (a) of the Electoral Act, 2006 does not pretend to either identify or mention all the officers of the Commission and their designations. That there is no express provision in the law or regulations as to the nature of the authorization to be given by the Chief Electoral Commissioner to any subordinate officer in the discharge of his duties. It would be setting an unreasonable standard therefore to expect that the authorization must be in the form of a formal instrument. That Section 73 of the Electoral Act provides that the Chief Electoral Commissioner or any other officer authorized by him shall keep official custody of all the documents, including statement of results. The learned senior counsel urged that the propriety of the certificate on Exhibits 192-250 be affirmed since the appellant had not rebutted the presumption of regularity provided by the law.

Further still, that the appellant had not shown that the election results were not under the control of the Resident Electoral Commissioner or the Administrative secretary or, indeed, any other relevant officer of the Commission at the material time. The learned senior counsel therefore urged us to uphold the decision of the tribunal on the issue.

On the submission relating to the inspection of documents and the effect of Order 33 rule 20(1)(2) of the Federal High Court (Civil Procedure) Rules, 2000, the learned senior counsel argued that that submission was not made to the tribunal at the appropriate time or at all. That it is therefore belated and amounted to a fresh issue being presented to this Court, which contention, learned counsel, argued, ought to be discountenanced and dismissed.

On the use of wrong Election forms, the appellant alluded to the use of forms EC8A marked “run-off election” in the recording of results of the election on 28/4/2007 which was not a run-off election. The learned respondent’s senior counsel on this argued that in the absence of any complaint against the figures in the result sheet, the learned tribunal found as a fact that the ordinary use of the word “run-off’, without more did not in any way affect the contents. The case of Buhari v INEC (2008) 4 NWLR (Pt.1078) 546 at 662 was cited in support. The learned senior counsel urged in the results that the appellant’s argument be dismissed, therefore.

On the Watermark authenticity submission made by the learned senior counsel for the appellant, the learned senior counsel for the 1st respondent submitted that the contention is out of con especially having regard to the fact that the documents exhibits 192-250 are photocopies and therefore secondary evidence. That watermarks can only be seen on an original or duplicate copy of a result sheet. The learned senior counsel further submitted in respect of failure to call Election Officials which same he contended did not affect the probative value which Exhibits 192-250 should have and which were given to them by the tribunal. That the evidence of DW14, in the circumstance suffices. That the appellant should not therefore be allowed to blow hot and cold by relying on them and at the same time disputing the one and same results. In other words that he should not be allowed to be inconsistent. This learned senior counsel argued was the stand taken by the apex court in the case of Ajide v Kelani (19s5) 3 NWLR (Pt.12) 248 at 269. The learned counsel submitted that the issue be resolved against the appellant and hold that Exhibits 192-250 were properly admitted in evidence and had probative value.

The 1st respondent’s 2nd issue is related to the 1st and borders on whether the tribunal gave due consideration to the evidence tendered in respect of the disputed nine (9) Local Government Areas. In summary and submitting on the issue, the learned senior counsel gave a succinct run down of the inconsistent nature of the appellant’s complaint (in his petition) in respect of the said nine disputed Local Government Areas. That the appellant’s argument seems to be unrelated to the pleadings and depositions which are the foundational basis of his case. That there is also no attack via grounds of appeal, on the computation of the results by the tribunal. Learned senior counsel again and in support cited the authority in the case of Olufoseye v Fakorede (1993) 1 NWLR (Pt.272) 747 at 762.

With reference to Exhibit 172, the learned senior counsel vehemently urged that this court should affirm same as lacking in probative value. This, he argued because the said document was tendered ostensibly to establish that fresh electoral materials were distributed after the election on 28th April, 2007.

The said learned counsel also in relating to the invocation of Section 149(d) of the Evidence Act, by the learned tribunal, called on this Court to affirm same in respect to all the areas where the appellant falsely claimed there was no election. That the criticism by the appellant was unfounded barring the far reaching implication that election was held in the disputed 9 Local Government Areas.

Further still and on whether or not the evidence of DW14 amounted to a hearsay as submitted by the appellant’s learned counsel, the learned senior counsel for the 1st respondent cited the cases of B.O.N. v Saleh (1999) 9 NWLR (Pt.618) 331 at 347 and Kate Enterprises Ltd. V Daewoo Nig. Ltd. (1985) 2 NWLR (Pt.5) 116 at 126-7.

Submitting also on the voters’ registers (Exhibits 163-171) and, their probative value, the learned senior counsel in support relied on the provision of Section 50(1), (2) of the Electoral Act, 2006 as offering the answer and in further affirmation was the case of Awuse v Odili (2005) 16 NWLR (Pt.952) 416 at 471. The learned senior counsel urged that the issue be resolved against the appellant therefore.

On behalf of the 2nd set of respondents, the learned senior counsel, Mr. Livy Uzoukwu, also proferred extensive arguments in line with the submissions by the 1st respondent’s learned counsel for the purpose of substantiating their lone issue. The issue was whether the tribunal properly admitted in evidence and/or properly evaluated Exhibits 192-220, 221-247, 249, 172 and voters registers?

On the totality of the senior’s submission, he urged that this court should also dismiss the appellant’s appeal on the ground that he had failed to establish the following:- that –

(a) the respondent’s documents were not duly certified.

(b) the tribunal did not properly evaluate the evidence and wrongfully made use of the respondents’ documents.

(c) the 1s’t respondent was not duly returned at the questioned election.

Counsel further argued that the appellant’s case should also be dismissed for being shockingly contradictory and more so for the repeated admission of “human/mathematical errors” in his pleaded scores which the learned senior counsel submitted had ensured the early death of his petition.

For the determination of this appeal and with the appellant’s two issues closely interrelated and interwoven, both would therefore be treated together. However and as a pre-requisite, it is essential to state that from the state of pleadings of all parties, both sets of respondents have joined issues with the appellant on his claim that the return of the 1s respondent was based on false results. They additionally set out tables of results based on that which was announced by INEC in returning the 1st respondent. It is significant to restate the settled law that there is a rebuttable presumption of authenticity in favour of results declared by the electoral body, in this case, the 2nd respondent. This general principle was affirmatively held and pronounced by the Apex Court in the case of Buhari v Obasanjo (2005) 13 NWLR (Pt.941) page 1 at 193 wherein Belgore (JSC as he then was) said:-

“Once the Electoral Commission announces the result of an election it is presumed correct and authentic and the petitioner who alleges the opposite must offer clear and positive proof that the result is incorrect and not authentic. If the allegation is of fraud, it must be proved beyond reasonable doubt, because fraud is a crime.”

In a further related authority of the case of Nwobodo v Onoh (1934) All NLR 1 at 21, the Apex Court had this to say:-

“……..there is in law a rebuttable presumption that the result of any election declared by FEDECO is correct and authentic and the onus is on the person who denies its correctness and authenticity to rebut the presumption. In my view, where such denial is based on allegation of crime against FEDECO officials responsible for the declaration of the results, the rebuttal must be proved beyond reasonable doubt.”

Ordinarily therefore, results declared by INEC enjoy the presumption of authenticity.

The two face components of the appellant’s grouse succinctly put are to the effect that:-

(a) Election was duly held in 18 Local Government Areas in Imo State and he won a majority of votes cast in them, and therefore ought to have been returned as elected on that basis, and (b) that election in the other 9 Local Government Areas in Imo State was vitiated by corrupt practices, non compliance etc.

It is pertinent to restate that on the authority of both the cases of Buhari v Obasanjo and Nwobodo v Onoh under reference supra, the 1st arm of the appellant’s contention on the result of election held in 18 Local Government Areas does not call for extensive deliberation. This is predicated on the presumption which is held in favour of results declared by INEC. Also on the authority of Ngige v Obi under reference supra, this Court adopted the definition of the word “duly” in Black’s Law Dictionary 8th Edition at page 540 which states thus:-

“In a proper manner, in accordance with legal requirements”

It Strand’s Judicial Dictionary of Words and Phrases 3rd Edition, Volume 1 at page 895, the word “duly” is said to –

“Signify that the action has been done legally, in due course, and according to the provisions of the law.”

Consequently, where the appellant himself and on his own volition therefore claims that “election was duly held in 18 local government areas in Imo State” it meant stricto senso that it was held in a proper manner in accordance with legal requirements. It also meant that it was done legally in due course and according to the provisions of the law. The onus of disproving the authenticity and legality of any such election and result squarely hid on the petitioner/appellant who “must offer clear and positive proof that the result is incorrect and not authentic.”

It is trite and inexorable pronounced and laid down in a plethora of authorities that any allegation of a criminal act must be proved beyond reasonable doubt. Consistent with the admission of due election, the appellant did not challenge the witness DW14 over the authenticity of any of the aforesaid results. Not a single question for instance was asked under cross examination on the issue of due election. Pages 1673-1681 of the record is evident on this contention.

Central to the point of contention by the appellant was the witness DW14 and in particular the legal status of all the exhibits as well as forms ECSA which were either tendered or produced by him. The said witness, the appellant contended was not directly involved in the conduct of the election, claimed in his sworn statement on oath to testify “on behalf of the 3rd and 4th respondents” only. Through the said witness, the 2nd set of Respondents tendered Exhibits 221,-250 as certified true copies of statements of result forms EC8A, EC8B, EC8C in respect of various Local Government Areas.

It is pertinent to recapitulate that the appellant at page 86 volume 1 of the record of appeal by table 19 thereof claimed to have scored a 369,546 votes in the 18 Local Government Areas where he admitted that election was duly held. He however claimed an absence of any election held in 9 of the Local Government Areas in the said table, He therefore prayed the tribunal to return him as having scored the majority of the valid and lawful votes in the questioned election.

It is interesting and indeed very questionable against the appellant when reference is made to his evidence under cross examination. At page 1534 of Volume 4 of the record for instance the appellant when cross examined by the 1st respondent had this to say:-

“The results collated from all the exhibits I tendered constitute the basis of my claims barring human/mathematical errors. The figures collated from the documents are correct barring any human or mathematical errors. They are complete barring any human or mathematical errors. The 18 Local Government Areas contains over 180 electoral wards. The results I tendered are in respect of more than 150 electoral wards. I cannot tell the exact number. I don’t know exactly the number of polling units in the 18 Local Government Areas. I cannot remember the number of electoral units in respect of which I tendered form EC8A.

I am not in a position to say whether the total number of electoral units in the 18 Local Government Areas is 2367 out of which I produced results for 15 13 units.”

Also at page 1547 of the same record, the appellant under further cross examination by the 2nd set of respondents had this to say:-

“I have tendered exhibits 1-175. I rely on all the evidence that I tendered. I cannot remember the total figures I pleaded as my scores in the 18 Local Government Areas where I stated election held. I cannot remember if the figure of the scores I pleaded as my score in the petition is 369,546. I cannot put a figure to the votes constituting my scores barring any human or mathematical errors. I would not know the number of candidates who contested the gubernatorial election but I would say as many as there are registered political parties. I remember I pleaded that I won 25% of votes cast in the 18 Local Government Areas where election duly held.”

Further still and at page 1558 of the same record the appellant under continued cross examination also said:-

“I have not done any computation of the results I tendered.”

From the foregoing evidence by the appellant under cross examination, it is obvious that his claim to a score of 369,546 in the said 18 Local Government Areas is utterly speculative and at large. In the case of Iviengbo v Bazuaye (1999) 9 NWLR (Pt.620) 552 at 561 it was succinctly and affirmatively held that:-

“A court cannot decide issues on speculation no matter how close what it relies on may seem to be on the facts. Speculation is not an aspect of inference that may be drawn from facts that are laid before the court. Inference is a reasonable deduction from facts whereas speculation is a mere variant of imaginative guess which, even when it appears plausible, should never be allowed by a court of law to fill any hiatus in the evidence before it.”

Speculation as clearly stated in the authority supra, is not the business of the Court; the claim by the appellant in scoring 369,546 votes is therefore bane and baseless; it has obviously dealt a fatal blow and also detrimental to his case as rightly stated by the respondents learned senior counsel.

It is obviously out of place- for the appellant to claim that he won the majority votes and yet could not ascertain his score as the foundational basis of that claim. This is not a place for speculation but hard and tangible facts which must not be based on “mere variant of imaginative guess.” The appellant’s guess is not derived from any reasonable inference which can be deducted from real facts.

Also and in further cross examination at page 1550 of the record, the appellant alleged fabrication of results having taken place in various venues and various Local Government Areas. That the fabrication involved rewriting or writing new sets of forms EC8A. The case of the appellant at paragraph 6.05 at page 24 of his brief alleged that:-

“INEC after results were written and given to party agents and security agencies in the field on the date of the election in 18 Local Government Areas proceeded to prepare other results contrary to those issued in the field, and other results for 9 Local Government Areas where no conclusive elections and results were truly generated.”

In the course of proving his assertions none of the said agents was called as per the record to testify and identify any of the poll results for the purpose of confirming the allegation of fabrication or falsification thereof. In dealing with similar situation in Agbalah v Chime and Ors. in the unreported judgment of this Court Enugu Division in Appeal No.CA/E/EPT/151/2008 delivered on 4th June, 2008, Saulawa JCA in delivering the lead judgment at page 23 said-

“The implication of the allegations is that the 811,798 votes credited to the 1st respondent and the 15,287 votes credited to the appellant were false and accordingly manipulated in favour of the 1st” respondent. Thus, the declaration and return of the 1st respondent as the winner of the elections in question by INEC officials had allegedly amounted to a false declaration within the contemplation of the provision of section 130(5) of the Electoral Act.”

The learned Justice went further at page 27 and held thus:-

“Curiously enough however, the appellant rather than taking the trouble to call the relevant INEC Officers that were in the field and thus took an active part in conducting the elections in question, to give evidence, he chose for reasons best known to him to, tender election result forms, exhibit P1-P2548 vide the PW1. What is more, most surprisingly, none of the appellant’s party agents that allegedly represented the appellant or signed and collected the said exhibits P1-P2548 from the numerous polling units, was called to testify in the petition a fortori, the failure to call the party agents that represented and served as an eagle eye to the appellant at the various polling units to give evidence was fatal to the petition.”

With the presumption of authenticity in favour of the result announced by INEC, the appellant had grossly misconceived the burden of proof when he said the respondents failed to call “one single Presiding Officer who functioned at any of the relevant polling stations………….” Section 135 of the Evidence Act on the burden of proof is relevant in point and states as follows:- “135(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

It is the appellant that desired judgment dependent on the existence of the result which he alleged was in his favour. The burden laid on him therefore to have proved the existence of the facts of the votes he claimed to have scored. This he had certainly and woefully failed to prove and therefore had himself to blame.

On the competence of the evidence, legal status, duties and representation of DW14 as a witness, the appellant branded his evidence as hearsay on the ground that he did not personally execute the documents he tendered, and did not also act as an election official in the field on the day of election. In other words, the appellant’s complaint was that the result forms – Exhibits 221-249 comprising forms EC8A, EC8B and EC8C tendered through the witness DW14 “were not properly certified.” Relevant for the determination of this contention is the authority in the case of B.O.N. v Saleh (1999) 9 NWLR (Pt.618) 331 at 347 wherein this Court per Edozie JCA (as he then was) said:-

“It is trite law that the mere fact that an official of a corporate body was not present when a particular transaction took place does not affect the cogency of the evidence of such official. See the case of Kate Enterprises Ltd. V Daewoo Nigeria Ltd. (1985) 2 NWLR (Pt.5) 166;’

In the latter case of Kate Enterprises Ltd. V Daewo Nigeria Ltd. All NLR (1985) 267 at 277 and 279 the Apex Court per Coker JSC reaffirmed the status of the evidence of an official of a corporate body who did not personally participate in a transaction:-

“The Court of Appeal in my view is quite justified in holding that the trial judge misdirected himself in holding that the evidence of PW1 was hearsay simply because the witness said he did not deal directly with the defendant in the transaction….. The trial judge in effect considered the entire evidence given by this witness inadmissible and rejected it. He was clearly in error. His evidence is admissible but the question of weight is a different matter. Any other employee of the plaintiff conversant with the facts of the case was competent to testify. The evidence given by PW1 with the documents received in evidence were sufficient evidence to prove its case.”

INEC is a corporate body as clearly fathomed in Section 1 of the Electoral Act,2006, which inter alia states:-

“The Independent National Electoral Commission….. shall be a body corporate with perpetual succession and may sue and be sued in its corporate name.”

Deliberating on the question of certification, the learned tribunal in its judgment relied on Section 111(1) and (2) of the Evidence Act at page 2036 of the record wherein it held as follows:-

“Our answer based on this section is that by sub section 2 thereof Mr. Koroye who certified the documents for INEC is deemed to have custody of the documents. If the petitioner is contesting that he did not do the certification in the course of his official duty then he has to so prove. He has (sic) done so here.

Section 114(1) …….. the court shall also presume that any officer by whom any document purports to be signed or certified, held when he signed it, the official character which he claims in such paper. This is a presumption that Mr. Koroye who signed the documents was indeed administrative secretary stated on them when he signed them. By our above analysis the said documents qualify to be presumed genuine under section 116 of the Evidence Act.”

The learned appellant’s senior counsel placed great premium on the case of Ngige v Obi under reference supra wherein this Court held and said:-

“Section 116 of the Evidence Act, the way I understand it, can be split into two i.e. into document which do not have to be produced from proper custody before they can be presumed genuine and documents which must be produced from proper custody before their genuineness can be presumed. A court will therefore presume the following documents genuine:-

(a) Official Gazette of Nigeria

(b) Official Gazette of a State of Nigeria

(c) The Gazette of any part of the Commonwealth

(d) A newspaper or journal or a copy of the National Assembly resolutions printed by the Government printer.

All the other documents purported to be documents directed by any law to be kept by any person must be produced from proper custody before they could be presumed genuine by the court.”

Relating to Section 116 of the Evidence Act supra the appellant’s senior counsel further submitted on the premise that the certified true copies produced by DW14 did not therefore satisfy these preconditions for presumption of genuineness. At paragraph 4.09 of the appellant’s brief at page 10 for instance, the complaint lodged was that:-

“The documents in question were purportedly certified by one Timmy Koroye an administrative secretary. There was no evidence that this officer was in custody of the documents. Such evidence is negatived by the evidence of DW14 to the effect that he was in custody. Therefore, Timmy Koroye could not validly certify a document under Section 111(1) of the Evidence Act, which document he did not have in his custody. Any such certification by him cannot attract the presumption under Section 114(1) and 116 of the Evidence Act and would amount to documentary hearsay.”

The said counsel’s contention purportedly sought to find justification on the testimony of the DW14 under cross examination at page 1677 wherein he said:-

“I receive and keep the custody of the materials returned by the Electoral officers from the field. I also receive reports from the field from the Electoral officer and make same available to the Resident Electoral Commissioner. I also release documents for the use of parties in Election Tribunals.”

From the cross examination of the witness DW14 supra, for same to suffice the contention of the appellant, it ought to have proceeded further and not leaving the deduction in the balance. In other words, by the use of the phrase “the materials” and “release of documents” in the evidence of Dw14, supra, same are very vague, impregnated and could be highly presumptive as to whether they include result forms or not. This I say in view of the use of the words “materials” and “documents” which simpliciter cannot be precluded from satisfying the preconditions for presumptive genuineness under section 116 of the Evidence Act as wrongly concluded, in my humble opinion, by the appellant’s learned senior counsel.

As rightly submitted also by the learned 2nd set of respondent’s senior counsel a person may be in custody of a thing without necessarily being in actual physical possession of that thing. In the case of Daggash v Bulama (2004) 14 NWLR (Pt.892) 144 at 221 it was held that:-

“The presumption of regularity enacted in Section 114(1) of the Evidence Act set out above is commended to trial courts for consideration when faced with documents from official sources such as Exhibit A herein. Without any evidence rebutting that presumption of regularity enacted in Section 114(1), the piece of evidence to which jt applied materializes (sic) as genuine and admissible in evidence and of evidential value.”

Section 111(1) of the Evidence Act referred (supra) also provides as follows:-

“(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be, and such with his name and his official title, and shall be sealed, wherever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”

Somewhere in this judgment I have restated the lower tribunal’s reliance on the provisions of Sections 111(1) and (2) as well as 114(1) of the Evidence Act at page 2036 of the record (supra). The onus is therefore on the appellant to rebut the presumption of law in favour of certification in the sections of the Evidence Act supra. From all indications, the appellant, with due respect, was unable to fault the learned tribunal’s meticulous and impeccable findings.

Further more and on the contention by the appellant that the respondents should have explained the whereabouts of the original copies of the documents before tendering the certified copies of them, I would briefly consider the point. In other words and without having to embark on an academic exercise, and as rightly submitted by the learned senior counsel for the 1st respondent, the requirement, sequel to the provision of Section 97(i)(e), (2Xc) of the Evidence Act, is inapplicable to public documents.

The appellant also attempted to make a heavy weather on the contention that the 2nd set of respondents’ alleged failure to allow inspection of the election results precluded them from tendering same in evidence. With reference to page 2037 of Vol. 5 of the record of appeal, the lower tribunal in its judgment said:-

“We have earlier in this judgment said that it was agreed at the pre-hearing session that rather than pursue the application to commit INEC for contempt, for the allegation that INEC did not allow the petitioner inspect document pursuant to an order of this tribunal, INEC should produce the documents at the pre-hearing sessions. INEC in fact did so but the Respondent would not collect them from INEC., (emphasis is mine)

In other words, the tribunal had, in its judgment, recalled that it directed INEC to produce the election results at the pre-trial sessions to enable the appellant inspect same; this was done, but the appellant would not utilize the opportunity. With the clear recapitulation by the lower tribunal, one wonders what the appellant’s complaint is seeking to arrive at. In my view, it is akin to a saying that, one can take a horse to the river, but one cannot force it to drink. The appellant it would appear, needed to be forced and unfortunately for him, there is no such provision provided for either under any of our laws, Rules or the Act. I would also and for further fortification, agree with the submission by the 1st respondent’s senior counsel wherein he stated a number of deductions which are very clear-cut as follows:-

“This I say because from the foregoing and as rightly submitted by the 1s’t respondent’s senior counsel, a number of deductions are very clear:-

(1) that the appellant did not seriously press for inspection of documents;

(2) that he had the opportunity to inspect the documents but changed his mind and therefore failed to utilize same, and

(3) the 2nd set of respondents were not in breach of any order for inspection.”

The appellant in other words was at liberty and free after obtaining an order for inspection, not to utilize it. It is therefore, derogatory for the same appellant to turn around and use his own failure and neglect as weapons of complaint. Such a deliberate negative act should not attract any sympathy and/or attention. He who calls the piper must pay for the tune and there can be no running away from it. The contention by the appellant to invoke Order 33 rule 20(1)(2) of the Federal High Court (Civil Procedure) Rules 2000 therefore is grossly misconceived and inappropriate.

On the use of wrong election forms contented by the appellant, this Court in the case of Buhari v INEC (2008) 4 NWLR (Pt.1078) 546 at 662 held:-

“wrong form used for result deals with form and not substance.”

Briefly and without much ado, the argument in that behalf is very porous like a basket which would not hold water’

The appellant had also questioned the failure of the 1st respondent to have tendered his own copies of the election results, i.e. form EC8A; briefly also and as rightly submitted by the 1st respondent’s senior counsel’ the appellant’s learned senior counsel had not disclosed in his argument what prejudice he would suffer as a result of the alleged failure in tendering same. The burden equally rested on the appellant to have so stated and which was not discharged.

The next point for consideration relates to the invocation of Section 149(d) of the Evidence Act wherein the lower tribunal in its judgment at page 2040 of volume 5 of the record said:-

“Counsel for the rest of the Respondents …… has submitted that the petitioner had the results going by his pleading at paragraph 38(iii) that he will rely on the booth results in form EC8A for Ngaba Local Government Area, one of the 9 local government in issue,(sic) given to his (petitioners’) agents. We think there is some force in that submission having regard to our observation above. Consequently counsel for the rest of the Respondents has invited us to invoke the provisions of Section 149(d) of the Evidence Act regarding those results. The point is well taken. We hereby invoke Section 149(d) of the Evidence Act against the petitioner that he deliberately withheld the results because had he produced them they would have been against his position that elections did not hold in those 9 Local Government Areas.”

The reproduction of section 149(d) of the Evidence Act provides as follows:-

“149. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural event, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –

(d) that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it;”

At paragraph 38 of the petition, the appellant for instance pleaded that election process ip Njaba Local Government Area was vitiated by violence and non compliance with the Electoral Act. In his table 19 at page 86 of the record which was earlier referenced upon (supra), he alleged that there was “no election” in the said Local Government Area. At paragraph 38(iii) page 96 of the record specifically, and in particular, the appellant pleaded this and said:-

“The booth results from all places in Njaba Local Government Area where election took place showed that the petitioner scored 27,412 votes while the 1st respondent scored 4,602 votes. At the collation centre where the agents of the petitioner were excluded, the scores were altered giving the petitioner 6,395 votes while the 1st respondent was assigned 17,233 votes. The petitioner will rely on the booth results in form EC8A for Njaba Local Government Area contained in the duplicate copies used at the booths and given to the petitioner’s agents.”

Also at page 126 of the record, the appellant repeated same as reproduced supra in paragraph 34 of his deposition. He did not however tender any of the results which he said he would rely thereon. As rightly arrived at by the lower tribunal, the invocation of Section 149(d) of the Evidence Act was eminent and apt.

Further more and at page 1548 of the record, the appellant in his evidence under cross examination by the 2nd set of respondents said:-

“In Njaba Local Government Area there was no voting. Election was disrupted and marred, and so no collation of any result whatsoever. I could not have scored 27,712 votes because there was no election in Njaba Local Government Area.”

As rightly submitted also and argued by the learned senior counsel for the 2nd set of respondents the appellant’s answers under cross examination on the question of election in Njaba Local Government Area were as embarrassing as they were shocking and contradictory. I could not have agreed with the said senior counsel more.

It is further amazing that the appellant still under cross examination in contradicting his pleadings at paragraph 38(iii) of the petition had this to say at page 1555 of the record:-

“I also said the booth results from all the places in Njaba Local Government Area where election took place showed that I scored 27.1412 while 1″ respondent scored 4,602. I concluded that I rely on the booth result in form EC8A for Njaba Local Government Area contained in duplicate copies used at the booths. These results pleaded in the paragraph are not results because there were not results because there was not election in Njaba Local Government Area (sic). In other words those results are not authentic.”

PW12 by name Nwagha Chidozie Nnamdi testified and his evidence was also centered on Njaba Local Government Area wherein he adopted his deposition as his evidence at page 1568 of the record. Under cross examination by the 1st respondent’s counsel, the witness said thus at page 1569:-

“It is also not true that results were declared at the polling units and the ward collation centres in the Local Government Area. I would not know if petitioner scored 27,412 votes in the Local Government Area, because there was election. If petitioner said he scored 27,412 votes in Njaba that is his business but I am here to state what is on the ground, which is that there was no election.”

Another witrness Pw16, contrary to his deposition, in a nutshell testified and said that he did not say in his deposition, that at a time, he was poised to disrupt the election:

PW42, also contrary to the petition at pages 1593 and 1594 had cause to say that no presiding officer issued or declared any result in Njaba Local Government Area except Amaocha Ward I or II. In funher contradicting the petition and the appellant’s deposition, he also said:-

“It is not true as stated by the petitioner that he scored 27,412 votes in Njaba Local Government Area.”

In the case of Ogunbiyi v Ogundipe (1992) 9 NWLR (Pt.263) at pages 35 and 40 it was held:-

“Where the evidence called by a party to prove the averments in his pleadings is in sharp contradiction to those averments which are very material to the case of the appellant, the result is that the appellant has failed to prove his case and the proper order is a dismissal of the appellant’s case. The effect of the evidence adduced by the appellant is that he has called evidence which is at variance with his pleading. The appellant has called evidence blindly without knowing what he was placing before the tribunal. In such circumstance he receives the verdict to which such evidence leads………

In those circumstances, a court of law or a tribunal cannot pick and choose from the evidence of the witness or accredit one witness and discredit the other. …the effect is that the petitioner had failed to establish the ground upon which he relies.”

It is pertinent to restate that the allegations in all the 9 Local Government Areas are of a similar nature wherein the appellant in his pleading alleged various electoral malpractices and offences. At the risk of being repetitive, the contradictory state of events in all the other areas is not far fetched from that occasioned in Njaba Local Government Area. I would not therefore need to over flog the horses, but to state that the tribunal in its findings reached the conclusion that elections duly held in all the said 9 disputed Local Government Areas and concluded thus at page 2082 in its judgment:

“At law the voters register showing accreditation with results which are all before us and which we have held were given to the petitioner are sufficient proof that elections held (sic). However, since evidence other than those 2 documents were offered we felt obliged to consider them all.”

In other words the lower tribunal before relying on the results had painstakingly gone through the complaint in each of the questioned (9) Local Government Areas and found as a fact that elections were held and results declared. In the course of that exercise, the evidence of each appellant’s witness in the relevant Local Government Area including the voter’s register, was examined against the background of the pleadings in the petition and related evidence. In the result and deducing from the foregoing. I am of the considered opinion that the appellant’s surviving issues one and two are both resolved against him and in favour of the respondents. On the totality of the appeal therefore, same is dartly lacking and devoid of any merit whatsoever and is hereby dismissed. The judgment of the lower tribunal delivered on 7th March, 2008 and upholding the election and declaration by the Independent National Electoral Commission, which returned the 1st Respondent as the winner of the Election, is affirmed. In other words, I make an order affirming that the 1st respondent Ikedi Godson Ohakim was properly elected and declared as the Governor of Imo State in the election held on the 28th April, 2007.

I would, however, wish to commend the thorough and meticulous manner in which the learned lower tribunal Judges handled the case at hand. They, certainly, deserve a commendation for a job very well done.

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Other Citations: (2009)LCN/3157(CA)