Senator Iyiola Omisore & Anor V Ogbeni Rauf Adesoji Aregbesola & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, JSC

My Lords, the proceedings, which culminated into this appeal, were prompted by the divergent responses to the outcome of the election which the Independent National Electoral Commission (INEC) conducted in Osun State on August 9, 2014. In the said election, the first appellant in this appeal, who was sponsored by the second appellant, a registered political party, was the latter’s Governorship candidate. On the other hand, the first respondent herein was the candidate of the second respondent in the said election. Sequel to the third respondent’s declaration of the results and return of the

PAGE| 2 first respondent as the winner in the keenly-contested election, the petitioners beseeched the Governorship Election Petition Tribunal, Osun State (in this judgement, simply, referred to as “the trial Tribunal”) with a petition challenging the declaration and return of the first respondent in seventeen out of the thirty Local Government Areas of Osun State. Even in the said seventeen Local Government Areas, the petition was only circumscribed to certain wards and polling units. They claimed the following reliefs: 1. Whereof the Petitioners pray that it be determined and declared that the first respondent, Ogbeni Rauf Adesoji Aregbesola, was not duly elected by a majority of lawful votes cast in the Osun State Governorship election held on the 9th of August, 2014, and therefore his election is null and void; 2. That it be declared that Senator Iyiola Omisore was duly elected and ought to have been returned as duly elected Governor of Osun State having scored the highest number of lawful votes cast at the election held on the 9 August, 2014, and satisfies the provisions of the 1999 Constitution of the Federal Republic of Nigeria and Electoral Act, 2010 (as amended) to be so declared; 3. In addition, that Senator Iyiola Omisore be declared as the winner of the Osun State Governorship election held on the 9th of August, 2014, based on the results obtained at the physical recount and re-examination by and before the Tribuanai or otherwise of the votes from the affected or aforementioned Local Governments, Wards, Units and/or Centres. Or, in the alternative: 4. That the Osun State Governorship election held on 9th August, 2014, having been vitiated by substantial non-compliance with the mandatory statutory requirements which has substantially affected the validity of the election in the Units and Wards of the Local Government Areas being challenged be declared nullified or cancelled and the third respondent be ordered and or directed to conduct fresh elections for the office of the Governor of Osun State in the affected areas. The grounds of the petition were listed as follows: (a) The first respondent was not duly elected by majority of the lawful votes cast at the election and did not score VA (one-quarter) of the lawful votes cast in at least twenty of the thirty Local Government Areas of Osun State and therefore did not meet the requirements of the law to be returned as the winner of the election;

PAGE| 3 (b) The election of the first respondent is invalid by reason of corrupt practices and electoral malpractices perpetrated by the members and agents of the first and second respondents in the places challenged in this petition; (c) The election of the first respondent is invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), the Manual for Election Officials, 2014, the Guidelines issued for the conduct of the election and the law in the conduct of the election. Issues were joined in the settled pleadings [and there were many processes, indeed]. On October 16, 2014, the first respondent filed a Notice of Preliminary Objection under paragraph 4 (1) of the First Schedule to the Electoral Act. The appellants, vigorously, opposed it. Not done yet, the first respondent filed another Motion on Notice on October 21, 2014, under paragraphs 16 (1) and 18 (1), (3) and (4) of the First Schedule to the Electoral Act. In it, he prayed for the following reliefs: an order of the trial Tribunal striking out the appellants’ Reply to the first respondent’s Reply on the ground that it was filed out of time; an order deeming the petition as abandoned and an order dismissing the said petition for the appellants’ failure to apply for the issuance of notice of pre-hearing session within the time prescribed by the Rules. Expectedly, the appellants, stridently, opposed the application. Just like the first respondent, the second respondent filed a Motion on Notice on October 29, 2014 asking for the same reliefs which the first respondent had sought for in his own motion of October 21, 2014. The appellants opposed it, as well. At the hearing of the petition, the appellants [who were first and second petitioners, respectively, at the trial Tribunal] marshalled a whopping forty three witnesses, namely, PW1 to PW43. They, equally, tendered documentary exhibits, marked exhibits 1A to 380. These were electoral forms, result sheets and sacks of ballot papers which were, incautiously, dumped on the trial Tribunal without any attempt to chart their nexus with the specific complaints in the specified areas on which issues were joined in the settled pleadings. On his part, the first respondent called nineteen witnesses, RW1- RW 19. Although he did not tender any documentary exhibits through his own witnesses; while his counsel was cross examining the appellants’ witnesses, he tendered some documents through them. The second respondent called eight witnesses, viz, RW 20- RW27. The third respondent did not call any witness. However, counsel tendered exhibits 395, 396 and 397 from the Bar. While cross

PAGE| 4 examining the appellants’ witnesses, he, nevertheless, elicited vital evidence from them. At the close of evidence and final addresses, the trial Tribunal delivered its judgement on February 6, 2015. While it overruled the said preliminary objections of the first and second respondents, on the one hand; it dismissed the appellants’ petition, on the other hand. The appellants were dissatisfied with the judgement which dismissed their petition, just as the first and second respondents were aggrieved by the trial Tribunal’s ruling overruling their said objections to the competence of the petition and the admissibility of certain documents. Thus, while the appellants appealed against the substantive judgement to the Court of Appeal, Akure Division [hereinafter, simply referred to as “the lower court”], the first respondent cross appealed against the ruling relating to the competence of the petition and the issue of admissibility of documents. So, also, did the second respondent. In its judgement of April 2, 2015, the lower court dismissed the appellants’ appeal while allowing the first and second respondent’s cross appeal in part. Still dissatisfied, the appellants appealed to this court against both the lower court’s main judgement, as per their first Notice of Appeal filed on April 10, 2015 and against part of the judgement in the Cross Appeal, through the second Notice of Appeal filed on the same day. On his part, not, entirely, satisfied with the judgement in the Cross Appeal, the first respondent, also, cross appealed to this court. His complaint was against that part of the judgement in the Cross Appeal which discountenanced his objection against the admissibility of some documents which the appellant tendered at the trial Tribunal. In other words, before this court, the appellant has two appeals, namely, the appeal in the first Notice of Appeal against the main judgement of the lower court and a second appeal, as evidenced in the second Notice of Appeal, against part of the lower court’s judgement relating to the cross appeal of the first respondent. The third appeal before this court is the first respondent’s cross appeal against part of the judgement in his Cross Appeal at the lower court. In addition, the first and second respondents filed Preliminary Objections to the Notices of Appeal and issues formulated from them. I shall return to these objections shortly. Before then, however, attention will now be drawn to the issues which the parties put forward for the resolution of their agitations. ISSUES FOR DETERMINATION The appellants distilled seven issues for this court’s determination of this appeal. These issues

PAGE| 5 were framed in these words:- 1. Whether the learned Justices of the Court of Appeal were right in holding that Ground 13 of the appellants’ Notice and Issue five distilled therein (sic) are incompetent? 2. Whether the learned Justices of the Court of Appeal were right in affirming the tribunal’s findings on the doctrine of severance; burden and standard of proof on allegation of non-compliance and irregularities in the conduct of the election? 3. Whether the learned Justices of the Court of Appeal were right in affirming the tribunal’s findings that the appellants failed to prove substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), Manual for Electoral Officials, 2014 and the Guidelines for the Conduct of the election having regard to the state of the pleadings and the evidence adduced? 4. Whether the learned Justices of the Court of Appeal did not fail in their duty to evaluate properly the appellants’ evidence and draw the necessary inferences as demonstrated before them? 5. Whether the learned Justices of the Court of Appeal were right in affirming the findings of the tribunal which rejected the reports and evidence of PW15 and PW38? 6. Whether the learned Justices of the Court of Appeal were right in the interpretation of paragraph 16 (1) and (2) of the First Schedule to the Electoral Act, 2010 (as amended) on [the] appellants’ reply filed in the petition? 7. Whether [the] learned Justices of [the] Court of Appeal were right in affirming the tribunal’s findings that the allegations of corrupt practice were not proved beyond reasonable doubt? On his part, although adopting the appellants’ seven issues, the first respondent rephrased the tenor of the self-same issues thus: 1. Whether the Court of Appeal rightly upheld the preliminary objection of the first and second respondents on Ground 13 of the appellants’ Notice of Appeal and issue five distilled therefrom? 2. Whether the Court of Appeal was right in holding that the Tribunal properly applied the required standard of proof in respect of allegations of non-compliance made by the appellants? 3. Whether the Court of Appeal was right in holding that evidential burden would only

PAGE| 6 shift to the third respondent if the appellants proved their allegations of substantial non-compliance with the Manual for Election Officials, 2014 and Electoral Act, 2010 (as amended)? 4. Whether the Court of Appeal was right when it upheld the findings of the Tribunal that the appellants failed to prove its allegations of non-compliance? 5. Whether the Court of Appeal was right in upholding the decision of the Tribunal rejecting the report and evidence of PW15 and PW38? 6. Whether the Court of Appeal was right in holding that the Replies of the appellants to the respondents’ Replies to the petition were filed out of time? 7. Whether the Court of Appeal was right in upholding the decision of the Tribunal that the allegations of corrupt practices made by the appellants were not proved beyond reasonable doubt? The second respondent’s seven issues were a facsimile reproduction of the seven issues of the first respondent, [paragraphs 3.1.1-3.1.7, page 6 of the second respondent’s brief]. On its part, the third respondent condensed the issues into four, viz: 1. Whether the Court of Appeal was right when it held that the Tribunal examined and evaluated the totality of the evidence led by the parties and correctly found that the appellants failed to prove by credible evidence that the Governorship election conducted in Osun State on the 9th day of August, 2014 was invalid by reasons of corrupt practices, irregularities and substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), the INEC Manuals as well as the Guideline for the Conduct of Election? 2. Whether the Court of Appeal was right in holding that the evidential burden would only shift to the third respondent if the appellants proved their allegations of substantial non-compliance with the Manual for Election Officials, 2014 and Electoral Act, 2010 (as amended)? 3. Whether the Court of Appeal was correct when it upheld the decision of the Tribunal that the first respondent was validly returned as the candidate who polled the majority of the lawful votes cast at the Governorship election conducted by the third respondent in Osun State on the 9th day of August, 2014? 4. Whether the Court of Appeal was correct when it upheld the decision of the Tribunal that struck out the appellants’ Reply to the third respondent’s Reply when it found that

PAGE| 7 the Reply of the appellant was indeed filed out of the time prescribed by the First Schedule to the Electoral Act, 2010 (as amended)? It is only proper to pause here for a consideration of the Preliminary Objections of the first and second respondents. Since, like Siamese twins, the complaints in both objections are un-differentiable, a composite ruling will suffice in disposing of them. PRELIMINARY OBJECTION In the common paragraph two of the first and second respondents’ briefs [paragraph 2. 1, page 6 of the first respondent’s brief; paragraph 2.1, page 5 of the second respondent’s brief], it was averred that “[a]t or before the hearing of this appeal, the first [and second] respondent (s) will raise preliminary objection (s) to the Notice of Appeal and issues formulated therefrom/’ The particulars of the objection were highlighted thus: 1. The parties to this appeal have not been constituted in accordance with the requirements of Order 2 Rule 8 of the Supreme Court Rules. Except with the leave of the Supreme Court it is not open to an appellant to introduce a new party into an appeal to the Supreme Court. Therefore where a stranger has been introduced into an appeal without the leave of the Supreme Court, the appeal is incompetent and the same must be struck out. The party named as second respondent in the Notice of Appeal of the appellants was never a party to this petition and the appellant never obtained the leave of the court to make the named second respondent a party to this appeal. In the premises, the appeal is incompetent and same must be struck out; 2. Grounds 1 and 2 of the Notice of Appeal are vague 3. Grounds 4, 5, 6 and 7 are the same as they relate to the same complaints on the standard of proof; 4. Particulars of Ground 9 are not supported by the record; 5. Grounds 3 and 10 are similar At the hearing of the appeal, Chief Akinlolu Olujinmi, SAN who, with Kola Awodein, SAN; Chief F. 0. Fagboungbe, SAN, Deji Sasegbon, SAN and Segun Ajibola, SAN, appeared with a retinue of other counsel from the Outer Bar, and whose names were subjoined to the counsel’s list, pointed out that the said preliminary objection affects both appeal No SC. 204/2015 and appeal No SC. 204A/2015. He explained that the appellants changed the parties to the petition. Specifically, he drew attention to the fact that the second respondent is a stranger to the

PAGE| 8 proceedings, citing Order 2 Rule 8 of the Rules of this court; PPA v INEC [2012] 13 NWLR (pt 1317) 215, 237. In his submission, the Notice of Appeal being, thus, corrupted renders the two appeals incompetent. He invited the court to strike out the said Notices of Appeal. Oluwarotimi Akeredolu, SAN who, with Femi Falana, SAN, appeared with other counsel for the second respondent, associated himself with the above submissions. In addition, he contended that if judgement is given in the appeal as, presently, constituted, it would be against All Peoples Progressive Congress that was never a party to the petition. Asiwaju A. S. Awomolo, SAN, who appeared with other counsel on the list, equally, adopted the above submissions. He drew attention to pages 7984 -7993 of Volume 15 of the record for the first Notice of Appeal and pages 7994-7999 of the same Volume 15 of the record for the second Notice of Appeal. He pointed out that Ground 12 of the first Notice was related to the Ground 2 of the second Notice. He maintained that the approach which the appellants adopted in interweaving the issues for determination in the briefs in respect of the disparate Notices of Appeal was inelegant, citing paragraph 4. 95 etc of the appellants’ brief. Expectedly, Dr Alex Izinyon, SAN, who, with Chief Chris Uche, SAN; T. Ashaolu, SAN; N. O. Oke, SAN; R. Otaru, SAN and N. Rabana, SAN, led other counsel for the appellants, canvassed arguments in his gallant effort to confute the entirety of the objectors’ contention, [paragraphs 1.6-1.14 of the appellants’Joint Reply Brief, [Appeal No SC. 204/2015], to the first and second respondents’ brief of argument dated April 29, 2015, although filed on April 30, 2015]. In his elucidation of the said brief, he pointed out that the lower court delivered two judgements, namely, the main judgement and another judgement in respect of the Cross Appeal of the first respondent. They were thus two distinct appeals which necessitated two Notices of Appeal. He urged the court to look at the respective Grounds in the main appeal.and the judgement in the Cross Appeal. He prayed the court to discountenance the said objections, [paragraph 1. 14, page 3 of the said brief]. RESOLUTION OF THE PRELIMINARY OBJECTION With profound respect, it is, extremely, difficult to fathom the juridical Impulsion to the first and second respondents’ objections to what they described as “the introduction of a stranger” to this appeal. Senior counsel quibbled about, what evidently, is an innocuous and inadvertent slip of the interposition of the word “Peoples” into the name of a registered political party, to wit, “All Progressives Congress,” [APC], the second respondent in this appeal. It is not their

PAGE| 9 contention that the said second respondent is a non-juristic person. They have, equally, not complained that they were, in any way, misled by the said slip or that it [the slip] had occasioned a miscarriage of justice. Now, it is no longer in doubt that this court, and indeed, all courts, have made a clean sweep of “the picture of the law and its technical rules triumphant,” Aliu Bello and Ors v A. G, Oyo State (1986) 5 NWLR (pt 45) 528, 886. Let me explain. By its current mood, it is safe to assert that this court has, firmly and irreversibly, spurned the old practice where the temple of justice was converted into a forensic abattoir where legal practitioners, employing such tools of their trade like “the whirligig of technicalities,” daily butchered substantive issues in courts in their “fencing game in which parties engage[d] themselves in an exercise of outsmarting each other,” Afolabi v Adekunle [1983] 2 SCNLR 141, 150. Those days are gone: gone for good! This current approach, and a robust and wholesome one at that, is to permit litigants, more particularly, parties in election-related matters, to ventilate their grievances without any hindrances by technical arguments that have the tendency of clogging the wheel of electoral justice in the election Tribunals and courts entertaining appeals from them, Egolum v. Obasanjo [1999] 7 NWLR (pt. 611) 355; Nwobodo v. Onoh [1984] 1 SCNLR 1. Consistent with this robust outlook, an innocuous slip [such as the one complained of in the Preliminary Objections] will not be allowed to vitiate proceedings which were, duly, initiated or properly filed. Surely, it would not be in the interest of justice to defenestrate this appeal, as senior counsel for the objectors have urged this court to do, just because the word “Peoples” featured in the name of a juristic person, the second respondent herein. Dr Izinyon, SAN, has pleaded inadvertence. This is understandable. After all, it is a matter of common knowledge that the imaginary or fictional Printer’s Devil has become the Scapegoat for accidental slips or errors in all written works, including court processes, Njoku v. UAC Foods [1999] 12 NWLR (pt 638) 557; Carlen v. University of Jos [1994] 1 NWLR (pt. 232) 231; Nkwocha v. Federal University of Technology [1996] 1 NWLR (pt. 422) 112; Emespo J. Continental Ltd v CSR MBH and Coy (2006) LPELR -1129 (SC) 14. Different considerations would apply, however, if the argument was that the second respondent is a non-juristic person. In such a case, there would have been no valid amendment of the title of the suit since there was never a legal person before the Court, Okechukwu and Sons v. Ndah (1967) NMLR 368. The only option, open to the Court, in such a situation, would be to strike out the name of the non- juristic person, Agbomagbe Bank Ltd v General Manager

PAGE| 10 G. B. Ollivant Ltd. and Ors (1961) ANLR (Reprint) 125. What is at play in this appeal, however, is not a mistake as to the identity of the second respondent, Maersk Line v. Addide Investment Ltd. [2002] II NWLR (pt. 778) 317, 377. In my view, this court has the undoubted power to correct this slip in the name of the second respondent as this is a case of a misnomer, Njemanze v. Shell B. P. Port Harcourt [1966] Vol. 4 NSCC 6; Maersk Line v. Addide Investment Ltd. (supra) 377-378; Olu of Warn and Ors. v. Esi and Anor [1958] Vol. 1 NSCC; Establishment Baudelot v. R. S. Graham & Co. Ltd (1953) 1 All ER 149; Alexander Mountain and Co. v. Rumere Ltd. (1948) 2 All ER 483. For sure, it is the law that where the description of a party on a process in a litigation [as happened here] is a mere misnomer, an amendment would suffice to put it right provided that the person misnamed is a juristic entity and is in existence, just like the second respondent, A. B. Manu & Co. (Nig.) Ltd. v. Costain (W.A) Ltd. [1994] 7 NWLR (pt. 367) 112. The essence of such an amendment is to ensure that justice is done to all parties to the dispute, Vulcan Gases Ltd. v. G. F. Industries A. G. [2001] 9 NWLR (pt. 719) 610, 653. As already shown above, it is a cardinal duty of the Courts to ensure, at all times, that substantial justice is accorded to all parties to the disputes before them, Adewunmi v. Attorney-General Ekiti State [2002] 2 NWLR (pt. 751) 474, 507; Afolabi v. Adekunbe [1983] 2 SCNLR 141; Shokunbi v. Mosaku (1969) 1 NMLR 54; Vulcan Gases v. G. F. Industries A. G (supra) 653. The objection is overruled on this score. I hereby enter order effecting… the amendment of the said process by striking out the word “Peoples.” OBJECTIONS RELATING TO THE GROUNDS OF APPEAL The objectors, equally, contended that: Grounds one and two of the Notice and Grounds of Appeal are vague; Grounds four, five, six and seven are the same as they relate to the same complaints on the standard of proof; Particulars of Ground nine are not supported by the record and Grounds three and ten are similar. On the premises of the above-cited defects, they invited the court to strike out those Grounds and the issues woven around them. The answer to the objectors’ invitation is predictable. The current mood of this court to technicalities has been depicted above. Consistent with this libertarian trend, the position now is that it is not every failure to attend to Grounds of Appeal with the fastidious details prescribed by the rules of this court that would render such a ground incompetent. This is, particularly, so where sufficient particulars can be gleaned from the grounds of appeal in question and the adversary and the court are left in no doubt as to the particulars on which the

PAGE| 11 grounds are founded, Ukpon and Anor v Commissioner for Finance and Economic Development and Anor (2006) LPELR -3349, citing Hambe v. Hueze[2001] 4 NWLR (pt.703) 372; [2001] 5 NSCQR 343, 352. Even then, courts are now encouraged to make the best they can out of a bad or inelegant ground of appeal in the interest of justice, Dakolo and Ors v Dakolo and Ors (2011) LPELR -915. Hence, bad or defective particulars in a ground of appeal would not, necessarily, render the ground itself incompetent, Prince Dr B. A. Onafowokan v Wema Bank [2011] 45 NSCQR 1; Best (Nig) Ltd v Black Wood Hodge [2011] 45 NSCQR; Abe v UNILORIN (20130 LPELR. Put differently, since the essence of Particulars is to project the reason for the ground complained of, the inelegance of the said particulars would not invalidate the Grounds from which they flow, NNB Plc v Imonikhe [2002] 5 NWLR (pt 760) 241, 310; D. Stephens Ind Ltd and Anor v BCCI Inter (Nig) Ltd [1999] 11 NWLR (pt 625) 29, 3101. This position: a position shaped by the contemporary shift from technicalities to substantial justice, is, clearly, evidenced in such cases like: Aderounmu v Olowu [2000] 4 NWLR (pt 652) 253; Hambe v Hueze (supra); Abe v UNILORIN (2013) LPELR- 20643. Indeed, this court, recently, stamped its infallible authority on this current posture, Abe v UNILORIN (2013) LPELR-20643, citing Prince (Dr) B. A. Onafowokan and others v Wema Bank Plc and Ors [2011] 45 NSCQLR 181 SC; Best (Nigeria) Ltd v Black Wood Hodge (Nigeria) Ltd and Ors [2011] 45 NSCQLR 849. This court has no justification for departing from this wholesome contemporary attitude. In consequence, I find against the arguments canvassed in the above preliminary objections. I, further, find that I must, and I, hereby, enter an order dismissing the said Preliminary Objections. I endorse Dr Izinyon’s contention that the two distinct appeals necessitated the two Notices of Appeal. RESOLUTION OF ARGUMENTS IN THE MAIN APPEAL [SC. 204/2015] Having disposed of the preliminary objections, I now turn to the resolution of the submissions in the main appeal, that is, Appeal No. SC. 204/2015. As indicated earlier, while the appellants formulated seven issues, the first and second respondents adopted these issues, although rephrasing their tenor. However, the third respondent concreted only four issues for determination. From my intimate reading of the above issues, I have no difficulty in pinpointing their thematic

PAGE| 12 connections. In this regard, attention may be drawn to issues two; three; four and seven. Unarguably, the common thread which girds these four issues is the complaint against the lower court’s affirmation of the trial Tribunal’s findings with respect to: (a) The burden and standard of proof on allegations of non-compliance with the provisions of the Electoral Act, 2010 (as amended), Manual for Election Officials, 2014 and the Guidelines for the conduct of the election; and irregularities in the conduct of the election, subject of this appeal; (b) The lower court’s affirmation of the trial Tribunal’s findings that the allegations of corrupt practice were not proved beyond reasonable doubt. (c) The lower court’s alleged failure to evaluate the evidence properly and draw the necessary inferences; Simply put, the complaints in these four issues are predicated on the trial Tribunal’s alleged improper evaluation of evidence with regard to the issues itemised above and the lower court’s touted error in affirming those findings. Against this background, therefore, issues two; three; four and seven will be dealt with under the rubric, improper evaluation of evidence. The resultant consequence is that the issues for determination will be re-numbered as: issue One [the appellants’ original issue One; first and second respondents’ original issue one]; issue two [the appellants’ original issues two; three; four and seven; first and second respondents’ issues two; three; four and seven; third respondent’s original issues one, two and three]; issue three [the appellants’ original issue five; first and second respondents’ original issue five] and issue four [the appellants’ original issue six; first and second respondents’ issue six; third respondent’s original issue four]. ARGUMENTS ON THE ISSUES ISSUE ONE OBJECTION TO THE VALIDITY OF GROUND 13 [The appellants’ original issue one; first and second respondents’ original issue one] APPELLANTS’ CONTENTION When this appeal came up for hearing on May 7, 2015, Dr Alex Izinyon, SAN, who, with Chief Chris Uche, SAN; T. Ashaolu, SAN; N. O. Oke, SAN; R. Otaru, SAN and N. Rabana, SAN, led other counsel for the appellants, first, identified the following as the appellants’ processes in this

PAGE| 13 appeal: (a) The appellants’ forty-page brief of April 21, 2015, which is tied to the first Notice of Appeal against the main judgement. With the consent of counsel, this process was designated the brief of arguments in Appeal No. SC. 204/2015; (b) The appellants’ second, twelve-page brief, equally, filed on April 21, 2015, which deals with the appeal against the lower court’s judgement in the Cross Appeal and the subject of the second Notice of Appeal, designated Appeal No. SC. 204A/2015; (c) The appellants’ seven-page Joint Reply brief to the first and second respondents’ brief in Appeal No. SC. 204/2015, dated April 29, 2015, but filed on April 30, 2015; (d) The appellants’ six page Joint Reply Brief to the first and second respondents brief [in respect of the Preliminary Objection only]. (e) The appellants’ four-page Reply to the third respondent’s brief in Appeal No. SC. 204/2015 (f) The appellants’ three-page Reply filed on April 30, 2015 in respect of Appeal No. SC. 204A/2015 (g) The appellants’ ten-page process titled “first and second Cross Respondents’ Brief of Argument” filed on April 30, 2015 in relation to Appeal No. SC. 2014A/2015 He [Dr Izinyon, SAN] adopted the above-cited briefs in respect of the main appeal [in SC. 204/2015 and SC. 204A/2015] and their briefs in response to the Cross Appeal of the first and second respondents/Cross Appellants. Paragraphs 4.8 -4.14, pages 9-11 of the brief in Appeal No. SC.204/2015 were devoted to the arguments in respect of issue one. He pointed out that the appellants had urged the trial Tribunal to view the first respondent’s Chart of irregularities as an admission. Its refusal, he explained, prompted the phraseology of Ground 13 and its particulars, as set out on paragraph 4.8 of the said brief. Attention was drawn to page 7502 of Vol. 14 of the record where the trial Tribunal disagreed with the submissions of the petitioners’ counsel that the said table or Chart amounted to an admission that the first respondent scored 234, 971 valid votes. He pointed that it was the said disagreement with the submissions of the appellants’ counsel that led to the said Ground 13. Counsel maintained that it was a valid complaint and not an obiter dictum as the lower court held. The argument was canvassed that the lower court was in error in its view that the trial Tribunal did not make a finding that the first respondent made an admission in the said Chart. Akpan v Bob [2010] 17 NWLR (pt 1223) 421, 464-465 was cited as authority for the view that

PAGE| 14 the scope of a Ground of Appeal can arise in a number of ways. Learned senior counsel, further maintained that, from the said Ground 13, the appellants’ complaint was that the trial Tribunal erred in its view that “the first respondent’s submission as contained in his prepared chart cannot be used against him,” [paragraph 4.13, page 11 of the said brief]. Counsel pointed out that the lower court should have discountenanced the respondents’ objection. According to him, the first respondent’s Chart, where he tabulated various irregularities based on EC8A series, already, tendered by the appellant as exhibits 1-162, established the appellants’ case of substantial irregularities. He maintained that the Chart, showing irregularities, on its own, was sufficient to nullify the entire election because a vote of 159, 713, arising from irregularities in a total of 394, 684, for the winner, could not be said to be insufficient to nullify the entire election, Swem v Dzungwe (1966) NMLR 297, 300-305. He urged the court to resolve this issue in favour of the appellants and, thus, allow this appeal on this score. SUBMISSIONS OF THE FIRST AND SECOND RESPONDENTS On his part, Chief Akinlolu Olujinmi, SAN, adopted the first respondent’s brief of argument dated and filed on April 24, 2015 in respect of Appeal No. SC 204/2015, For the second respondent, O. Akeredolu, SAN, adopted the brief dated and filed on April 24, 2015. The effervescent arguments proffered in paragraphs 1.1.2, pages 6-11 of the first respondent’s brief; paragraphs 1.1.2, pages 6-11 of the second respondent’s brief were, expectedly, guided forensic missiles designed to dismantle the above submissions of the appellants’ counsel. The main plank of these submissions may be summed up. The appellants’ Ground 13 was not a complaint against the actual decision of the trial Tribunal and, as such, does not constitute a valid ground of appeal, citing pages 7502-7503 of the record for the trial Tribunal’s summation of the arguments of the respondents in their written address. Attention was drawn to the lower court’s affirmation of the trial Tribunal’s conclusion on this point. It was pointed out that the lower court struck out the said Ground 13 because it did not complain against the decision of the trial Tribunal. Counsel, noting the inapplicability of Akpan v Bob (supra), urged the court to resolve this issue in favour of the respondents. Counsel for the third respondent did not proffer any argument with respect to this issue. APPELLANTS’ REPLY

PAGE| 15 The appellants, vide appellants’ Reply Brief filed on April 30, 2015, responded to the issues of law that arose from the first and second respondents’ submissions, paragraphs 1.17 -1.30, pages 3-5 of the said brief, where these learned senior counsel for the appellants tackled the respondents’ arguments most meticulously. RESOLUTION OF THE ISSUE The arguments in this issue are, inextricably, tied up to the submissions, already, attended to in the preliminary objection just disposed of. For clarity of presentation, I shall proceed to disaggregate the constitutive limbs of Dr Izinyon’s brilliant submissions. In the first place, there is considerable merit in his contention that Ground thirteen is a valid complaint against the decision of the trial Tribunal: a decision encapsuiated in its “disagreement” with the submissions of learned senior counsel. Let me throw more light on this question. In their final address, counsel for the respondents prepared a Chart of the alleged irregularities that characterised the election under review. Although, the first respondent neither pleaded nor volunteered oral evidence in this respect, Dr Izinyon canvassed the view that the said Chart, which only featured in the written final address of the first respondent’s counsel, had morphed into an admission by the first respondent that the said election was riddled with irregularities. In its judgement, the Tribunal rejected that proposition, in these words: We do not, however, agree with the submissions of petitioners’ counsel that the table amounts to an admission that the first respondent scored 234, 971 valid votes. We say this in view of paragraph 4. 2. 4 of the final address Page 7502 of Vol 14 of the record [Italics supplied for emphasis] In Ground 13 of the appellants’ Grounds of Appeal, the appellants inveighed against that disagreement of the tribunal with learned counsel. For the first and second respondents, it was contended that the above statement of the tribunal was a mere obiter dictum. It is not in doubt that the above passage was the trial Tribunal’s unequivocal rejection of the specific invitation of the appellants’ counsel to it [that is, the trial Tribunal] to treat the chart contained in the final address of the counsel for the first respondent as an admission by the first respondent that there were irregularities in the election. In the view of the counsel for the appellants, the said “admission” was sufficient to nullify the election, paragraph 4.13, page 11 of the appellants’ brief. As shown above, the trial Tribunal was not hoodwinked into endorsing the said submission with the sophistry that underpinned it. This is, clearly, evident in its

PAGE| 16 decision [embodied in its “disagreement” with that ingenious, albeit, tendentious, argument]. In effect, Ground 13 was the appellants’ expression of their disavowal of the tribunal’s main reason for “disagreeing” with them. Although, section 318 of the 1999 Constitution (as amended) defines the word “[decision” to mean “in relation to a court, any determination of that court….” [italics supplied], it does not define the word “determination.” That notwithstanding, scholastic views and judicial decisions are ad idem that the said uncountable noun “determination” means “the settling of a controversy by a judicial decision; a coming to a decision,” The New Webster’s Dictionary of the English Language (International Edition) 261; “a final decision by a court or administrative agency,” Bryan A.Garner (ed), Black’s Law Dictionary, (8th edition) 480; “the [resolution] of a question,” Automatic Telephone and Electric Co. Ltd v. Fed. Military Govt, of Nigeria (1963) 1 All NLR 429, at 423; “to make an end of a matter,” Oaten v. Auty (1919) 2 KB 278, 288; Deduwa v. Okorodudu (1976) 1 NMLR 236. Simply put, therefore, a decision is a court’s pronouncement which represents its final verdict to a question brought before it for determination; Bamayi v AG, Federation and Ors (2001) LPELR -730 (SC) 14, A-C; Akande and Ors. v. Adesanwo and Ors. (1962) All NLR 206; Aduke v Longe (1962) All NLR 201; Emordi v Igbeke (2011) LPELR 1136 (SC) 9, D-E; Omonuwa v Oshodin (1985) LPELR 2654 (SC) 13, C-E. Thus, the trial Tribunal’s “disagreement” with the submissions of counsel for the appellants [petitioners, as the trial forum] was its resolution of the question whether the Chart in the final address of the first respondents’ counsel constituted an admission. Its decision or determination of that question [embodied in its “disagreement” with the submission of counsel] was that the said chart did not constitute an admission. It was, thus, an appealable decision or determination of that heady question. Ground 13 (supra), which attacked that decision, was a valid challenge to the ratio decidendi of the trial Tribunal’s reasoning (culminating in its “disagreement” with counsel’s position) and not an obiter dictum as submitted by the respondents’ counsel. In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judge’s passing remarks which do not reflect the reasoning of the court or ground upon which a case is decided, Paton and Sawyer, “Ratio Decidendi and Obiter Dictum in Appellate Courts” (1947) 63 LQR 461, 481; Rupert Cross, “The Ratio” in 20 MLR 124-126; A. G. Karibi-Whyte, “The Tyranny of Judicial Precedents”, in (1990) Vol.3 No.l Cat. U; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Nwanna v FCDA and

PAGE| 17 Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (pt. 56) 341; Amobi v Nzegwu [2013] 12 SCNJ 91. It is true, as argued by respondents’ counsel, that an appeal is usually against the ratio decidendi and, generally, not against an obiter, U. T. C Nigeria Limited v. Pamotei [1989] 2 NWLR (pt. 103) 244; Saude v. Abdullahi [1989] 4 NWLR (pt. 116) 387; Ede v Omeke [1992] 5 NWLR (pt. 242) 428; Dakar v Dapai [1998] 10 NWLR (pt. 577) 573; Abacha v Fawehinmi [2000] 6 NWLR (pt. 571) 573. However, I do not know by what lexical alchemy, the disagreement between the trial Tribunal and the submission of the appellant’s counsel could be transmogrified into an obiter. Surely, that was its determination of the question of the probative value of the Chart in question. The lower court was wrong, therefore, in striking out the said Ground 13 for being an attack on the trial Tribunal’s obiter dictum. On the other hand, I find and hold that it was a valid complaint against the decision of the trial Tribunal with regard to the question whether the said Chart constituted an admission and so should have been accorded a probative value. I resolve this issue in favour of the appellants. ISSUE TWO [The appellants’ original issues two; three; four and seven; first and second respondents’ issues two; three; four and seven; third respondent’s original issues one, two and three] APPELLANTS’ ARGUMENTS The first arm of the complaint of the appellants’ counsel on this issue was that the judgement of the trial Tribunal “fused the allegations of corrupt practices and non-compliance under issue two for determination,” citing pages 6234-6241 of Vol 12 of the record. Citing page 7416 of Vol 14 of the record on issue two, it was pointed out that the trial Tribunal failed to distinguish between the two disparate standards of proof in relation to (a) allegations of corrupt practices and (b) non-compliance. Put differently, the appellants understood the trial Tribunal to have employed a uniform standard of proof for the distinct allegations of corrupt practices and non-compliance without “severing those allegations on corrupt practices from non-compliance as to draw the line on when the burden of proof shift (sic)/ should move and the standard of proof required in each case/’ [paragraph 4.23 (a), page 12 of the brief], citing pages 7416-7490 of Vol 14 of the record. Reference was, also, made to pages 127-128 of Vol 1 of the record as clear evidence that, with

PAGE| 18 regard to evidence from the seventeen LGAs [pages 7416 et seq of Vol 14 of the record], the trial Tribunal failed to severe the allegations of corrupt practices from the allegations relating to non-compliance. Counsel faulted the lower court’s affirmation [at pages 7895 -7897 of Vol 15 of the record] of the perceived wrong approach of the trial Tribunal. The cases of Ikoku v Oil (1962) All NLR 195; Nwobodo v Onoh [1984] NSCC 1 were cited on the principle of severance of pleadings. Counsel, further, impugned the lower court’s affirmation of the trial Tribunal’s finding that the appellants had not “crossed the threshold to warrant a rebuttal, especially, by the third respondent,” page 7436 of Vol 14 of the record. The view was canvassed that, since the allegation of non-compliance was against the third respondent, “once the appellants led PW1, PW15 and PW38 and other witnesses with exhibits 1-340, especially, exhibits 1-162, the evidential burden shifted to the respondents, particularly, the third respondent, against whom the allegation of non-compliance relate (sic),” [paragraphs 4.27, page 13 of the brief]. Praying in aid section 139 (1) of the Electoral Act, 2010 (as amended), counsel argued that it was in the interest of justice for the third respondent to meet the requirement of the said section. Okuarume v Obabokor (1965) All NLR 360; Are v Adisa (1067) 1 All NLR 148; Oduiaja v Haddard [1973] 11 SC 357; Imana v Robinson [1979] 3-4 SC 1; Elias v Omobare [1982] 5 SC 25 were cited as authorities for the proposition that the standard of proof in civil allegations, including election petitions, is on the preponderance of evidence or the balance of probabilities; that is, on the well-established principles enunciated in Mogaji v Odofin. Contending that the standard of proof on non-compliance is one of balance of probability or preponderance of evidence, counsel averred that the lower court erred when it failed to severe the allegations of corrupt practice and non-compliance, which are separate grounds of the petition, but rather fused them into one. In his view, the trial Tribunal’s position, affirmed by the lower court, was that the appellants had the burden of proving both allegations beyond reasonable doubt. He maintained that it was the duty of the trial Tribunal to severe the pleadings; and having done so, once there was still a cause of action to sustain the petition, then it should apply the standard of balance of probability on the allegation of non-compliance, Fayemi v Oni (2009) 7 NWLR (pt 1140) 223, 285-286; Swem v Dzungwe (1966) NMLR 297, 300-305; Buhari v INEC (sic) All FWLR (pt 1459) 419, 522; Chukuma v Anyakora [2005] All FWLR (pt 302) 21; Ajadi v Ajibola (2004) 16 NWLR (pt 898) 111, 165; INEC v Oshiomole (2009) 4 NWLR (pt 1132) 507, 570-671; Ukpor v Imoke (2009) 1 NWLR (Pt 1121) 90, 143-

PAGE| 19 144. Learned senior counsel canvassed the view that, since the third respondent did not call evidence, it failed to controvert the petitioners’ case, Ucha v Elechi (2012) 13 NWLR (pt 1317) 330, 363; N. I. D. B. v A. B. I. Ltd (2005) 19 NWLR (pt 959) and a host of other cases, [paragraph 4.33, pages 14-15 of the brief]. He, further, submitted that where the question is that of non-compliance with the INEC Manual and Guidelines, it is a complaint against INEC that conducted the election, Fannami v Bukar (2004) All FWLR (pt 198) 1210, 1238, 1239; CPC v INEC(2011) 18 NWLR (pt 1279) 493, 545. He observed that, once the petitioners succeed in showing that there was non-compliance with the INEC Manual and Guidelines, the burden shifts to INEC to rebut it, Swem v Dzungwe (supra); Fannami v Bukar (supra); Ikoku v Oli (supra); Nwobodo v Onoh (supra). He pointed out that the INEC Manual was tendered as exhibit 186. Above all, PW1, PW15 and PW38 testified and exhibits 243 and 343 were tendered, all pointing to non-compliance. In his submission, at that stage, the evidential burden shifted to the third respondent, Fannami v Bukar (supra). He impugned the lower court’s affirmation [at page 7979 of Vol 15 of the record] of the findings of the trial Tribunal that the appellants failed to discharge their burden, even after having tendered exhibit 186; exhibits 1-162; EC8A Series; the evidence of PW15 and PW38 showing the irregularities complained of, Intercontinental Bank Ltd v BrifFina Ltd (2012) All FWLR (pt 639) 1192, 1206. He drew attention to pages 7979-7910 Vol 15 of the record where the lower court affirmed the trial Tribunal’s finding that the appellants did not cross “the threshold to warrant the third respondent’s rebuttal evidence…” He maintained that there was evidence of substantial non-compliance and, being an election petition, the appellants were entitled to judgement, Adusei v Adebayo (2012) 3 NWLR (pt 1288) 534, 553; Agbanelo v UBN Ltd’ (2000) 7 NWLR (pt 666) 534, 549; GE Inter Coop Ltd v Oil and Gas Service (2015) 1 NWLR (pt 1440) 244, 270. He urged the court to resolve this issue in favour of the appellants. Still on the lower court’s affirmation of the trial Tribunal’s finding that the appellants failed to prove substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended); Manual for Electoral Officials, 2014 and the above Guidelines [original issue three in the appellants’ brief], learned senior counsel re-iterated the earlier arguments on these issues and the cases, already cited, [paragraphs 4.44-4.52, pages 16-18 of the brief, citing pages 7492, Vol 15; 7490-7493 of Vol 14; 7436-7491 of Vol 14]. He emphasised the earlier submission on

PAGE| 20 the clear delineation of the disparate grounds of non-compliance, [paragraphs 17, 18, 19, 22, 23, 36 (a) (d) (e) (f) (i) (j) (L), (n) 37 38 of the petition, pages 8-20 of Vol 1 of the record. It was contended that the testimonies of PW1, PW15 and PW38, together with exhibits 1-340, proved non-compliance. It was further contended that the trial Tribunal did not follow the INEC Manual [exhibit 186) which was binding. Several authorities were cited here, paragraph 4.52 (2), particularly, at page 18 of the brief. Reference was made to exhibits 1-162, Form EC8A series, as the pyramid of the election, citing Ogboru v Uduaghan (2011) 2 NWLR (pt 1232) 538, 597. In counsel’s view, the testimonies of PW1, PW15, PW38 and the form EC8A series, clearly, showed non-compliance, Terab v Lawal (1992) 23 NWLR (pt 231) 519, 588. Pages 18-24 of the brief were devoted to other errors which, in counsel’s submission, characterised the judgement of the trial Tribunal [affirmed by the lower court]. Against the background of the above submissions, paragraphs 4.65 – 4.81, pages 24 -28 of the brief were devoted to the question of the lower court’s alleged improper evaluation of evidence, [the original issue four in the appellants’ brief]. The salient features of the arguments there may be summed up here. The appellants called forty three witnesses and tendered exhibits; only the third respondent did not call evidence but tendered exhibits 395, 396 and 397 from the Bar, page 7357, Vol 14 of the record. The trial Tribunal’s analyses of the testimonies of Ward Supervisors/Ward Collation Agents [paragraph 4.73, page 25 -testimonies which the Tribunal held to be hearsay testimonies as their testimonies were not direct evidence of what they observed but accounts given to them by their agents, [paragraphs 4.73 -4.76, pages 25 -26]; the alleged failure of the trial Tribunal to evaluate the exhibits – 1A-380-dumped on it; the misapplication of the Mogaji v Odofin principles, [paragraph 4.77 -4.79 (3) and (4);- 4.80-4.81, pages 26 -28] and a highlight of what the lower court ought to have done, [paragraph 4. 81, page 28 of the brief]. The last point on this issue was the lower court’s alleged error in affirming the findings that allegations of corrupt practices were not proved beyond reasonable doubt, [the original issue seven of the appellants’ issues, paragraphs 4.119 -4.131, pages 37-39 of the brief]. The crux of the arguments here was that the appellants discharged the burden placed on them; the witnesses’ testimonies proved the allegation of corrupt practices, [paragraph 4. 127 -4. 131, pages 38 -39 of the brief]. In all, counsel urged the court to resolve these issues in favour of the appellants. SUBMISSIONS OF THE FIRST AND SECOND RESPONDENTS

PAGE| 21 The responses of the first and second respondents to the above issues were succinct. Paragraphs 1.2.1 – 1.2.11, pages 12 -16, of the first respondent’s brief and paragraphs 1.2.1 – 1.2.11, pages 11-15 of the second respondent’s brief attempted a refutation of the appellants’ assertions that they were entitled to a favourable resolution of these issues in their favour under seven broad sub-issues. In paragraphs 1. 2.1 -1.2.4, [common to the first and second respondents], counsel canvassed the view that the appellants’ contention regarding the trial Tribunal’s “fusion” of the distinct standards of proof was a mere figment of their imagination, citing pages 7436-7490; 7490- 7491 of Vol 14 of the record. The appellants misconceived the applicable rules of pleadings in their allegation that the Tribunal failed to consider the issue of substantial non-compliance which they pleaded, [paragraph 1.25, page 14; paragraph 1.2.5, page 13 of the second respondent’s brief]. Above all, they, even misconstrued the dynamics of the rules of pleadings relating to pleading particulars of general averments, pages 14 and 13, respectively of the first and second respondents’ briefs, Akaninwo and Ors v Nsirim and Ors [2008] 1 SC (pt 111) 151. Arguments were further canvassed to demonstrate that the lower court, amply, dealt with the issue of non-compliance at pages 7897-7909 of Vol 15 of the record. On the failure of the third respondent to call oral evidence, both respondents pointed out that the third respondent extracted evidence favourable to its case in its counsel’s comprehensive cross examination of the appellants’ witnesses, thus, such evidence inured in its favour for the purpose of the Mogaji v Odofin exercise. What is more, being an action for declaratory reliefs, the appellants had to rely on the strength of the evidence they were able to adduce and cannot hope to plead want of evidence from the respondents, Gindiri v Nyako [2014] 2 NWLR (pt 1391) 31 211, 252. Worse still, the nature of the appellants’ testimonies was such that did not need any rebuttal, having been, thoroughly, discredited during cross examination. As affirmed by the lower court, the testimonies of PW1, PW15 and PW38 were found to be unreliable just as the exhibits attracted no probative value and no weight could have attached to them, Saeed v Yakowa [2011] All FWLR (pt 692) 1650 as these documents were not tested in open court, ACN v Lamido [2012] 8 NWLR (pt 1303) 560, 580¬581, paragraph 1.3.7, pages

PAGE| 22 15 and 17 of the first and second respondent’s briefs, respectively. Both respondents re-iterated the submissions on the tactics which the third respondent adopted of placing reliance on the evidence it elicited from the cross examination of the appellants’ witnesses. On the appellants’ failure to prove their allegations of non-compliance, counsel for both respondents observed that there was no merit in the appellants’ contention as the testimonies of PW1, PW5 and PW38, which they relied on, were dismissed as unreliable in the concurrent findings of the lower courts: findings which have not been proved to be perverse. Citing pages 742-744 of Vol 14 of the record, it was, further, pointed out that PW1, who offered evidence for all the seven Local Government Areas being challenged, conceded that his evidence was anchored on reports he received from his party agents. Counsel observed that, since the testimonies of PW15 and PW38 had been discredited during cross examination, the exhibits they tendered, namely, exhibits 242 and 343 could not be relied upon. Counsel drew attention to the findings at pages 7492-7493 of Vol 14 of the record on the appellants’ failure to prove their allegations of non-compliance with the laws governing the conduct of the elections. In further demonstration of the poverty of the appellants’ allegation; and the weakness of the case they made, attention was drawn to pages 7418-7419 [failure to prove improper accreditation]; pages 7419-7420 of the record on the failure to prove disenfranchisement of the appellants’ supports, Ngige v INEC (2015) 1 NWLR (pt 1440) 251, 326. Paragraph 36 (e) of the appellants’ petition, page 16 of Vol 1 of the record was cited in support of the contention that the allegation of absence of serial numbers of result sheets Form EC8VP, in respect of voting points, was at variance with the above paragraph of the pleading where the allegation on voting was made. What is more, PW15 and PW38, who gave report of inspection of electoral materials, failed to demonstrate the allegations of non-compliance on Forms EC25 and EC40, CPC and Anor v INEC [2012] 12 SCM (pt3) 225, 245-246; [] SCN1 Counsel, equally, noted that further evidence of the weakness of the appellants’ case was the concession of the Ward Supervisors, Local Government Collation agents and the State Collation agents that they did not visit many of the polling units in respect of which they gave evidence and that their testimonies were, largely, based on reports of others, Gindiri v Nyako [2014] 2 NWLR (pt 1391) 211, 240; ACN v Nyako [2012] 12 SCM (pt 3) 345. The decisions in Abdulmalik v Tijani [2012] 12 NWLR (pt 1314) 461, 472-475; Terab v Lawan (1992) 3 NWLR (pt 231) 569, 594; Mark v Abubakar (2009) 2 NWLR (pt 1124) 79, 183-184

PAGE| 23 were cited in proof of the fact that the appellants’ witnesses [page 24 , paragraph 1.4.16 of the first appellant’s brief] failed to prove their allegations of alteration etc and they could not prove disenfranchisement, Audu v INEC [No 2) [2010] 13 NWLR (pt 1212) 456, 522-523; over voting [par 1.4. 22]; inflation of figures [par 1.4.23, of first respondent]. It was pointed out that the documents which were tendered were dumped on the tribunal, page 27 of the first respondent. In all, the court was urged to affirm the concurrent findings that the appellants failed to establish that there was non-compliance, par 1.4.28, [page 27 of the first appellant]. Just as with the other allegations, the appellants, it was further contended, failed to prove the allegations of corrupt practices, citing pages 7436-7489 of vol 14 of the record; 7489-7490 and the lower court’s affirmation of these findings, pages 7925-7933 of the record, pages 36-37 of the first respondent. Attention was drawn to the fact that, out of the thirty local Governements in Osun State, only Ayedaade and Boripe LGAs were singled out. Even then only PW36 and PW 33 were called. Worse still, PW33’s testimony was predicated on reports of agents. Indeed, this witness conceded under cross examination that he signed the summary of result sheet, exhibit 163 (2) and their agents, equally, signed same. He was frank enough to admit, under cross examination, that he did not see the counting or collation of votes in any of the units, including the unit where he voted. PW1, who testified for all the Local Government Areas of the State, admitted that his evidence was based on reports he received from his agents, page 7183 of Vol 14, page 39 of the first respondent. Counsel observed that PW31, who testified on Boripe Local Government Area, gave unreliable evidence, pages 7447-7450 of vol 14. It was pointed out that, as averments in pleadings do not constitute evidence, allegations in the pleadings which were unsupported by evidence, were deemed abandoned. The court was urged to resolve these issues against the appellants. THIRD RESPONDENT’S SUBMISSIONS The third respondent, as already noted above, compressed all the above issues into three questions set out in its issues one, two and three, paragraph 3.1, page 4 of the brief. In the first place, counsel argued that the Tribunal evaluated the evidence of the appellants’ forty three witnesses, citing page 7436-7490 of Vol 14 of the record and the lower court, rightly, affirmed its findings. He referred to pages 7436- 7489 and 7490 of Vol 14 [for the tribunal’s findings on the issue of substantial non-compliance]; pages 7491-7493 [for its evaluation of other pieces of evidence which the appellants tendered]; pages 7417-7426 of Vol

PAGE| 24 14 [for its consideration of the alleged irregularities and the allegation of non-compliance; pages 7417-7419 of Vol 14 [for the consideration of the allegation bordering on accreditation]; pages 7419-7420 [for the findings on the allegation of voting by ineligible persons and disenfranchisement of eligible voters]; pages 7420-7421 [for its findings on non-stamping of duplicate copies of Form EC8A]; pages 7421-7422 [on the allegations of over- voting/multiple voting]; pages 7422 of Vol 14 [for the findings on intimidation, harassment and inducement of voters]. It was submitted that the above findings of the Tribunal [as affirmed by the lower court] represent the law, paragraph 6.23, page 16 of the brief. Counsel drew attention to the analysis of the tribunal on the probative value of the testimonies of PW15 and PW38, [pages 7494-7503 of Vol 14] and, in particular, to the question whether they qualify as experts, citing pages 7432-7434 of Vol 14. Learned counsel devoted paragraphs 7.11-7.22, pages 20-23 of the brief to an unremitting deconstruction of the testimonies of these witnesses and the tribunal’s orchestration of the errors that characterised the entries in the reports of PW15 and PW38, [paragraphs 7.9-7.22, pages 20-23 of the brief]. He contended that, as the appellants did not discharge their burden as required by law, the third respondent had no obligation to call any witness. He, further, contended that evidence elicited from cross examination from the appellants’ witnesses constituted evidence in favour of the third respondent, paragraphs 8.0-8.7, pages 23-25 of the brief. He exposed the weaknesses of the exhibits which the appellants dumped on the Tribunal, paragraph 8.16 et seq. Like counsel for the first and second respondents, he urged the court to resolve the above issues against the appellants. APPELLANTS’ REPLY The appellants’ Reply to the above submissions of the third respondent are contained in the process filed on April 29, 2015, paragraphs 1.1 -1.11, pages 1-3, thereof. RESOLUTION OF THE ISSUES As shown above, all the four issues [now classified under issue two] were lumped together under the rubric of evaluation of evidence. Indeed, the appellants’ original issues two; three; four and seven were woven around the complaint against the findings of the tribunal which the lower court affirmed. Simply put, their quarrel was with: the lower court’s affirmation of the finding that they failed to prove substantial non-compliance etc, issue two; failure to

PAGE| 25 evaluate evidence, issue three; affirmation of finding that allegation of corrupt practice was not proved, issue seven. Before dealing with this issue of evaluation of evidence, however, the question of burden of proof has to be disposed of. Now, there was an old maxim which was very popular in the Latin days of the Law. This maxim, which developed from the old Roman jurisprudence, was expressed thus: incumbit probatio qui dicit, non qui negat It comes to this – the burden of proving a fact rests on the party who asserts the affirmative of the issue and not upon the party who denies it – for a negative is usually incapable of proof. Instructively, this maxim has matured into an evidential rule in many jurisdictions. They include: England, Phipson on Evidence, (11th Edition), paragraph 92; page 40; Pickup v Thames Ins. Co. 3 Q.B.D.594. 600; Wakelin v L & S. W. R v 12 App Cas 41, 45; Joseph Constant the Steamship Line Ltd. v Imperial Smelting Corporation [1942] AC 154, 174; Seidon v Davidson (1968) 1 WLR 1083; India, Sarkar on Evidence (15th edition, Reprint 2004) (Volume 21 Commentary at 1445) and Nigeria, Imana v Robinson [1974] 6 SC 83; approvingly, adopting the exposition in Phipson on Evidence, (11th Edition), paragraph 92; page 40: “Burden of proof on the pleadings” as the Nigerian law on the subject. This has been the consistent posture of this court on this question, Elemo and Ors v Omolade and Ors (1968) NMLR 359, 361; Atane v Amu (1974) 10 SC 237; Fashanu v Adekoya (1974) 6 SC 83; Kate Enterprises Ltd v Daewoo Nig Ltd (1985) 2 NWLR (pt 5) 116; Onyenge & Ors v Ebere 18 NSCQR (pt II) 789, 802; Vulcan Gases Ltd. v GESELLSCHAFT FUR Ind. (2001) 9 NWLR (pt.719) 610, 667. In the instant case, were the appellants [as petitioners] able “to distinguish [between] the two distinct and frequently confused meanings which have always been attached to the words ‘burden of proof,’” Elemo and Ors v Omolade and Ors (supra) at page 361? This question becomes even more cogent against the background of the presumption which inures in favour of the regularity of INEC’s election results, CPC v INEC and Ors (2011) LPELR -8257 (SC); Buhari v INEC and Ors [2009] All FWLR (pt 459) 419 and the burden of adducing evidence in rebuttal of the said presumption, Buhari v Yusuf [2005] 13 NWLR (pt 941) 1, 255; 193. In attending to the above complaints of the appellants against the concurrent findings of the lower courts, I have been guided by the prescriptions, eloquently, enunciated in Case Law on the proper approach to be adopted in the resolution of complaints on findings of facts; credibility and demeanour of witnesses.

PAGE| 26 In the first place, it is settled that where an appellant fails to satisfy the appellate court that the lower court was wrong in its application of the facts to the prevailing and applicable law, his appeal will fail. This rule, which has a fairly ancient ancestry, Macauiay v Tukuru (1881-1911) 1 NLR 35; Akinloye v Eyiyola (1968) NMLR 92; has been endorsed in a succession of decisions of this court dating back to 1974, Obisanya v Nwoke (1974) 6 SC 69; Woluchem v Gudi (1981) 5 SC 291; Obodo v Ogba (1987) 2 NWLR (pt 54) and Ogologo v Uche (2005) 14 NWLR (pt 945) 226, 246. I have, equally, leaned for support on the prescription that this court also has certain duties when considering findings of fact made by a trial court and affirmed by the lower court. These Trinitarian obligations are that it [this court] must: (a) recognise the onus on the appellant to satisfy it that the decision of the trial court, affirmed by the lower court, was wrong; (b) recognise the essential advantage which the trial court enjoyed in seeing the witnesses and watching their demeanour; and (c ) bear in mind that in cases which turn on the conflicting testimonies of witnesses and the credibility ascribed to them, it can never recapture the initial advantage of the trial court which saw and assessed the witnesses, Nteogwuile v Otuo (2001) 16 NWLR (pt 738) 58; Oyadare v Keji (2005) 7 NWLR (pt 925) 571. Against the background of these obligations, this court, considering a complaint against the lower court’s concurrent findings or non-findings of facts, will seek to know: (i) the evidence before the trial court; (ii) whether the said court accepted or rejected any evidence upon the correct perception; (iii) whether the court correctly approached the assessment of evidence before it and placed the right probative value on it; (iv) whether the court used the imaginary scale of justice to weigh the evidence on either side; (v) whether the court appreciated, upon the preponderance of evidence, on which side the scale was weighted having regard to the burden of proof, Daramola and Ors v AG, Ondo (2000) FWLR (pt 6) 997, 1015; 1016; Osolu v Osolu (2003) FWLR (pt 172) 1777, 1791. The position, therefore, is that it is only where it is manifest1 that the findings of facts, as affirmed by the lower court, were based on a wrong perception or wrong principles of law that this court will interfere with them. It will, equally, be proper for this court to interfere where it is shown that the findings do not find anchorage on the evidence led at the trial or where it is shown that the findings are glaringly wrong and will pervert the cause of justice. In such situations, therefore, this court will interfere with such findings of fact in order to put the facts

PAGE| 27 and the law in their proper context and perspective, Balogun v Agboola (1974) 10 SC 111; Lokoyi v Olojo (1983) 2 SCNLR 127; Chinwendu v Mbamali (1980) 3-4 SC 31; Ibhafidon v Igbinosun (20010 8 NWLR (pt 716) 653; Dibiamaka v Osakwe (1989) 3 NWLR (pt 107) 101; Odonigi v Oyeleke (2001) 6 NWLR ( pt 708) 12. Thus, where concurrent findings of facts are not perverse, this court cannot interfere with them, Ajuwa v Odili (1985) 2 NWLR (pt 9) 710; Chukwueke v Nwankwo (1985) 2 NWLR (pt 6) 195; Nzekwu v Nzekwu (1989) 2 NWLR (pt 104) 373. What is more, due to the initial advantage which the trial court had of actually seeing and assessing the witnesses, Nteogwuile v Otuo (2001) 16 NWLR (pt 738) 58; Oyadare v Keji (2005) 7 NWLR (pt 925) 571, issues relating to the demeanour of such witnesses which the court saw and assessed and the ascription of weight to their evidence are the exclusive prerogatives of the trial court: prerogatives which neither the lower court nor this court can interfere with, Ebba v Ogodo (1984) 1 SCNLR 372; Owie v Ighiwi (2005) 5 NWLR (pt 917) 184, 208. This foundation dictated the rule that a trial court has the power to ascribe credibility to the evidence of witnesses who testified before it, Ajao v Ademola (2005) 3 NWLR (pt 913) 636, 656. Due to the weight of the learned senior counsel’s invitation to this court to interfere with the concurrent findings of the lower courts, I was constrained, in this judgement, to plumb the voluminous records of appeal with the finery of a toothcomb in order to ascertain the salient findings of the trial Tribunal which the lower court affirmed. This exercise took me through the sixteen, out of the thirty, Local Governments of Osun State, where the appellants predicated their complaints. AIYEDAADE LOCAL GOVERNMENT AREA The trial Tribunal’s evaluation of evidence, which the lower court affirmed, spanned pages 7436-7489 of the records, [fifty three pages], from Aiyedaade to Oshogbo Local Government Areas. In Aiyedaade Local Government Area, PW33, the Ward Supervisor, could not adduce evidence in proof of the allegations of unjustifiable disenfranchisement, voting by unqualified voters and the complaint of lack of accreditation! The Tribunal, in consequence, deemed the unsupported averments in the pleadings in this regard as abandoned, page 7438 of Vol Fourteen of the records. Worse still, his evidence was not the direct evidence of what he saw. Indeed, it was found at page 7439 that PW33’s concession under cross examination of signing “the result sheets [compromised] the allegations of arbitrary allocation of votes.”

PAGE| 28 PW1 dumped on the Tribunal the duplicate copies of Forms: (i) EC8As -exhibits 188 -204; (b) EC8Bs -exhibits 205 -209; (c) ECSCs -exhibits 221 -232; (d) EC8Ds – exhibit 233; (e) exhibits 234 -235 and (f) certified true copy of court- exhibit 236. He failed to chart any nexus or connection between them and the complaints. Realising that lacuna in the evidence, counsel rose to the occasion and attempted, albeit in vain, to do what the witness failed to do by providing some charts in his final address and “went ahead to make a robust analysis and evaluation of some of these documents as providing the required or necessary proof of the allegations in the petition,” page 7443 of the record. However, he was reminded that “the obligation to tie documents to facts or evidence or admitted facts is one to be done in open court and not a matter for counsel’s address,” page 7443 of the record. In conclusion, it was found that “the evidence led by the petitioners completely lacks any degree of cogency to support the widespread allegations made with regard to the wards and units in Aiyedaade Local Government Area,” page 7444 of the record. ATAKUMOSA LOCAL GOVERNMENT AREA In this area, after juxtaposing the testimonies of the petitioners’ witnesses with the testimonies of the respondents, RW12 and RW22 “on the other side of the aisle” [an obvious reference to the Mogaji v Odofin evaluation of evidence canon, the Tribunal found “a complete absence of evidence of any value to sustain the allegations with respect to the polling units in Atakumosa East Local Government Area where the outcome of the Governorship election has been questioned, ” page 7447 of the record. BORIPE Only one witness, PW31, was called as Ward Supervisor for Isaie Oyo Ward four which has five polling units. After juxtaposing his lone evidence with the testimonies of RW 8 and RW9, voters in units 01 and 02 of Ward four irt Boripe and who testified “to the orderly conduct of elections in these units,” the trial Tribunal found that “the evidence of pw31 is absolutely not cogent enough to support or sustain the allegations of electoral malpractices…” page 7450 of the record. EDE NORTH

PAGE| 29 Here, the evidence of PW35 was found to have been “made entirely from reports of PDP Ward Collation agents.” Expectedly, his testimony was branded hearsay evidence, page 7451 of the record. EDE SOUTH As allegations with respect to forty four units were not supported with oral evidence, they were deemed abandoned just as PW30, under cross examination, conceded that he signed the summary of results of his unit, exhibit 207 and that his party agents all signed the Forms EC8A for the four units in his ward vide exhibit 192,” page 7453 of the record. EJIGBO It was found here that “while the evidence of this witness [PW28] from this unit is clearly not material to the petitioners as it has not added any value to their case, it however confirms the fact that the third respondent was very diligent in its assignment…” page 7456 of the record. IFELODUN PW13, 14, 16, 17 and 29 did not fare any better. For example, PW29, apart from bare assertions of intimidation of PDP voters, when asked if he made a report to the police, responded in the negative, page 7458. ILESHA EAST The witness here was given exhibits 195 and 210, forms EC8A and EC 8B, respectively, and asked to point out the cases of over voting. He was unable to do so, page 7462. ILESHA WEST While the witness asserted that he used form EC8B to write his statement, it was found that the said form EC8B was not part of the four sheets of form EC 8B from the Local Government which were before the Tribunal as exhibit 21, page 7463.

PAGE| 30 IREPODUN Following the trial Tribunal’s evaluation of the testimonies of the witnesses, pursuant to the Mogajiv Odofin canon, it found “the evidence of these polling agents who remained at their polling units from beginning to conclusion of election, as to the conduct of the election, more reliable than the testimony of the ward agents/supervisors and Local Government collation agents who relied on information given to them by their agents at the polling units,” page 7466. IREWOLE Among other things, PW18 admitted under cross examination “that his claims as in paragraph 3j -p in his statement on oath are what his agents told him.” This was declared inadmissible; being hearsay evidence in so far as that was intended to establish the truth of the said allegations, page 7469 of the record. Worse still, PW19 failed to demonstrate before the Tribunal what he claimed to be over voting in unit 004, page 7470. Equally, PW20 could not demonstrate to the Tribunal the alleged over voting on the face of exhibit 248 (The Register of voters) for the ward and units and exhibit 198 which contained entries in respect of unit 003 of ward 6. Even then, the Tribunal found that “the results were duly stamped as shown in exhibits 90B, 90C, 90E, 90F, 90H and 901 Forms EC 8A as it affects polling units 008, 009, 011 and 012 bear the stamp of the Presiding Officer with his signature, ” page 7471 of the record. IWO The petitioners challenged the elections in only fifty three polling units of the one hundred and forty four polling units in the fifteen wards of Iwo Local Government Area. Unfortunately, the only two witnesses, PW21 and PW22, could not prove the allegations. Since there was no evidence in respect of ninety one polling units in the ward, the averments were deemed abandoned, page 7473. OBOKUN While the evidence of PW40 was found not to have advanced the case of petitioners, PW3 “admitted before the Tribunal he voted for the candidate of his choice.” Under cross examination, he admitted before the Tribunal that exhibit 215 is the collated result for his

PAGE| 31 ward and that in unit 004, APC scored 100 votes while PDP scored 124 votes and that the PDP won but that they struggled to win that unit,” page 7475. OLA OLUWA Here PW 37 confirmed the result in form EC 8B and also confirmed his signature in exhibit 176. It was found that, from exhibits 201 and 172, he signed the results. “He failed to show… any result sheet without the official stamp of the officials who conducted the election, neither did he show any altered entry not initiated or counter-signed,” page 7476. OLORUNDA While the petitioners called seven witnesses, PW7, 8, 9, 10, 11, 12 and 23, the first respondent called four witnesses, RW1, RW2, RW3 and RW4. In the tribunal’s findings, the testimonies of the respondents’ said witnesses “appear to be more credible as…to what the witnesses personally saw and not reports from any other persons/agents. Their testimonies were not discredited by cross examination,” page 7480. ORIADE Here, while PW32 Tailed to name specifically the wards and units he noted the alleged malpractices/’ the Tribunal found that, despite PW34’s disclamation of his signature on exhibit 144B, it [the said exhibit 144B] bears the official stamp of the presiding officer. This is clear on the face of the exhibit.” page 7482 OSOGBO In the State capital, Osogbo, the petitioners couid not show “that the votes recorded for these respondents on form EC 8A are different from those recorded for them in forms EC 8B and form EC 8C,” page 7489. In all, contrary to the submissions of the appellants’ counsel, there is clear evidence of the Tribunal’s application of the canon in Mogaji v Odofin, see, pages 7436 -7489 of Vol fourteen of the records and, in particular, pages 7446; 7447; 7451; 7452; 7465; 7480 etc. I, therefore, endorse the submissions of the respondents’ counsel that there is no merit in the appellants’ submission that the Tribunal “fused the allegations of corrupt practices and non-compliance under issue two for determination,” paragraph 4.23, page 12 of the appellants’ brief. As shown

PAGE| 32 above, it did not. The lower court, on its part, rightly, affirmed the above findings, pages 7897 -7909 of Vol 15 of the record. I have no difficulty in upholding the lower court’s affirmation of the trial Tribunal’s ascription of weight to the witnesses presented before it. This, equally, applies to its affirmation of the findings with regard to the electoral documents dumped on the trial Tribunal. It cannot be otherwise for it has long been settled that a Judge is not permitted to embark on an inquisitorial examination of documents outside the court room. Worse still, he is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure, Ivienagbor v. Bazuaye [1999] 9 NWLR (pt 620) 552; (1999) 6 SCNJ 235, 243; Owe v. Oshinbanjo (1965) 1 All NLR 72 at 75; Bornu Holding Co. Ltd. v. Aihaji Hassan Bogoco (1971) I All NLR 324 at 333; Alhaji Onibudo & Ors v Aihaji Ak/bu & Ors [1982] 7 SC 60, 62; Nwaga v Registered Trustees Recreation Club Nwaga v Registered Trustees Recreation Club (2004) FWLR (pt 190) 1360, 1380-1381; Jalingo v Nyame (1992) 3 NWLR (pt 231) 538; Ugochukwu v Co-operative Bank [1996] 7 SCNJ 22. I, equally, endorse the lower court’s affirmation of the finding that averments in pleadings [no matter their eloquent phraseology] do not speak for the pleader without supporting evidence unless the adversary admits them, Chime v Chime [2001] 3 NWLR (pt. 701) 527; U.B.N. Ltd. v Jimba [2001] 12 NWLR (pt. 727) 505; Gamborurna v Borno [1997] 3 NWLR (pt. 495) 530; Yaktor v Governor of Plateau State [1997] 4 NWLR (pt. 498) 216; Adeloye v Olona Motors (Nig) Ltd [2002] 8 NWLR (pt. 769) 445, 460; Savannah Bank Ltd v Pan Atlantic[1987] 1 NWLR (pt. 49) 212; Purosaro v Ayorinde [2005] 21 NSCQR 701, 718; Ifeta v SPDC (Nig) Ltd [2006] 8 NWLR (pt. 983) 585. In the absence of credible evidence, therefore, in proof of the allegation of non-compliance (supra) [substantial non-compliance with the principles of the Electoral Act etc or, in the alternative, substantial effect on the election result of any infraction of the said Act etc no matter how minuscule the transgression may be], all the brilliant submissions on the cogency of this court’s decision on Swen v Dzungwe (supra) are, merely, speculative or, at best, hypothetical. My understanding of the sacred principles consecrated In section 139 (i) of the Electoral Act, 2010, that is, the doctrine of substantial compliance there-under is that its consideration will only arise where the petitioners [such as the appellants who were the petitioners at first

PAGE| 33 instance] have succeeded in establishing substantial non-compliance with the principles of the Electoral Act etc or, in the alternative, substantial effect on the election result of any infraction of the said Act etc no matter how minuscule the transgression may be, Buhari v Obasanjo [2005] 50 WRN 1, 177; Swen v Dzungwe (1966) NMLR 297; Agagu v Mimiko (2010) 32 WRN 16, 80; Yusuf and Anor v Obasanjo and Ors (2005) 18 NWLR (pt 956) 96, 222. The lower court, having rightly affirmed the trial Tribunal’s correct findings [at page 74 92 of volume 14] that “in the instant petition, the petitioners have failed to establish before us what provisions of the Electoral Act and Manual have been contravened by any of the respondents in the conduct of the elections in any of the polling units being questioned….,” I shall say no more on that. The same applies to the lower court’s affirmation of the finding relating to the appellants’ failure to prove the criminal allegations of malpractice beyond reasonable doubt. It remains to be added that it has long been settled that evidence obtained in cross examination on matters that are pleaded, that is, on matters on which issues were joined [as was the case at the Tribunal], is admissible, Adeosun v Governor of Ekiti State [2012] All FWLR (pt 619) 1044, 1059; Akomolafe v Guardian Press Ltd [2010 3 NWLR (pt 1181} 338, 351; 353-354. In effect, the argument that the third respondent had no evidence before the trial Tribunal is incorrect. That argument would have been impregnable if the pieces of evidence Chief Awomolo, SAN, elicited from the petitioners’ witnesses in cross examination were not supported by the pleading of either party, Punch Nigeria Ltd v Enyina [2001] 17 NWLR (pt 741) 228; SPDC v Anaro [2000] 10 NWLR (pt 675) 248; Ita v Ekpeyong [2001] 1 NWLR (pt 695) 587; Isheno v Julius Berger Nig Plc [2003] 14 NWLR (pt 840) 289, 304; Ojo v Kamafu [2005] 18 NWLR (pt 958) 523, 548; Woluchem v Gudi [1981] 5 SC 291, 320; Ewarami v ACB Ltd [1978] 4 SC 99, 108; Dina v New Nigeria Newspapers Ltd [1986] 2 NWLR (pt 22) 353; Agnocha v Agnocha [1986] 4 NWLR (pt 37) 366; Okwejiminor v Gbakeji [2008] All FWLR (pt 408) 405. The net effect is that there is no merit in the appellants’ complaints in the composite issues just dealt with under rubric of “evaluation of evidence.” These issues [the appellants’ original issues two; three; four and seven] are, therefore, resolved against them. ISSUE THREE [The appellants’ original issue five; first and second respondents’ original issue five] In this issue, which was the appellants’ original issue five, the appellants’ complaint was that the lower court erred in affirming the tribunal’s findings which rejected the report and

PAGE| 34 evidence of PW15 and PW38. Counsel argued that the lower court erred in rejecting the evidence of PW15 and PW38, paragraphs 4, 90-4.94, pages 29 -34 of the appellants’ brief. He set out what, in his view, were the main missteps of the lower court, pages 29-34 of the brief. He urged the court to resolve this issue in favour of the appellants. The first and second respondents responded to these arguments in paragraphs 1.5.1- 4.5.25, pages 27 – 33 and paragraphs 1.5.1-4.5.25, pages 26 -32 of their briefs, respectively. In the main, it was their submissions that these two witnesses were not expert witnesses. Attention was drawn to page 7434 of Vol 14 where the Tribunal found that there was no scientific or technical information contained in the reports submitted by PW15 and PW38 and its emphatic finding that “no such expertise is exhibited in these reports.” Counsel pointed out that the tribunal extensively evaluated the testimonies of PW15 and PW38, including exhibits 243 and 342 at pages 7494- 7501 of Vol 14 and found that they were discredited and unreliable, citing Sowemimo v The State [2004] All FWLR (pt 203) 951; Akeredolu v Mimiko and Ors [2013] 12 SCM (pt 2) 135, 157, 170. Attention was, equally, drawn to the extensive evaluation of the testimonies of these witnesses at pages 7494 -7501 of Vol 14 and the damaging evidence elicited from them during cross examination at pages 7216- 7218 [PW15; 7288-7290 of Vol 14 [PW38]. Counsel was emphatic that the two witnesses were not expert witnesses within the meaning of section 68 (1) of the Evidence Act, AG v Abubakar [2007] All FWLR (pt 375) 405; ANPP v Usman [2008] NWLR (pt 1100) 1, 67-68. It was observed that their reports were replete with errors, false entries and deliberate attempts to distort facts, citing page 7288 of vol 14 [PW38] and page 7216 of vol 14 for the evidence of PW15]. More particularly, attention was drawn to page 7211 of vol 14 for the contradiction of the evidence of PW15 in cross examination and pages 7917-7920, particularly, pages 7497- 7498 of volume 14 for the tribunal’s finding that exhibit 243 which PW15 tendered “has been so discredited under cross examination that no reasonable tribunal can rely on it.” And the evidence of PW38 under cross examination, paragraph 4.5.22, page 33. Counsel urged the court not interfere with the concurrent findings of the lower courts. APPELANTS’ REPLY The appellants’ reply, essentially, re-iterated the earlier submissions on this issue.

PAGE| 35 RESOLUTION OF THE ISSUE In this case, the appellants [as petitioners], perhaps, believing that matters of scientific or of technical nature were in issue, summoned PW15 and PW38 who testified on their behalf. However, like blocks of ice tossed into a cauldron, their testimonies melted under the fusillade of, probingly, devastating questions in cross examination, exposing them as witnesses whose testimonies were riddled with mistakes, errors and inexcusable gaffes, pages 7216-7290. Above all, at page 7434 of Volume fourteen, the trial Tribunal found “no scientific or technical information contained in the reports submitted by PW15 and PW38. While they may be experts in their respective fields, no such expertise is exhibited in these reports. They, simply, looked at the electoral materials and brought out facts therefrom. Their reports and themselves would therefore be treated not as expert evidence/witnesses.” As Asiwaju Awomolo, SAN, submitted there was no appeal to the lower court on these findings with regard to the status of these two witnesses, pages 19 of the third respondent’s brief. Against this background, it would not serve any useful purpose dissipating precious judicial energy on this point as there are authorities on when the evidence of knowledgeable experts would be imperative, for example, in matters that are scientific or technical in nature, Seismograph Services Ltd v Onokpasa [1972] 4 SC 123; Seismograph Services Ltd v Ogbeni [1974] 4 SC 85, and, consequently, may be beyond the ken and comprehension of the court, Kaydee Ventures Ltd v Hon Minister, FCT [2010] All FWLR (pt 519) 1079, 1114. The submission that, in the absence of rebuttal evidence from the respondents’ expert witnesses, the trial Tribunal had the obligation to accept the testimonies of PW15 and PW38 is unavailing. In the first place, as shown above, their testimonies did not weather the barrage of questions in cross examination. Worse still, the tribunal agreed that the exhibit, subject of PW15’s evidence “has been so discredited under cross examination, page 7498. Still on page 7498, it stated that “… PW38, another expert witness for the petitioners admitted under cross examination that his report covers more grounds than the complaints of the petitioners.” Contrary to the appellants’ contention, therefore, the trial court was, amply, justified in not according their testimonies any probative value, Kaydee Ventures Ltd v Hon Minister, FCT (supra); AG, Oyo State v Fairiakes Hotels (No 2) [1989] 5 NWLR (pt 121) 255. What is more, the so-called expert even admitted that what was involved was a matter in

PAGE| 36 which any literate person could have proffered opinion. In effect, expert opinion was not even necessary in the first place, Kaydee Ventures Ltd v Hon Minister, FCT (supra); Seismograph Services Ltd v Onokpasa (supra); Seismograph Services Ltd v Ogbeni (supra). With respect, there is no merit in the appellants’ complaint in this issue and it is,, accordingly, resolved against them. ISSUE FOUR [The appellants’ original issue six; first and second respondents’ issue six; third respondent’s original issue four] This issue, on the propriety of the lower court’s interpretation of the effect of paragraph 16 (1) (2) of the First Schedule to the Electoral Act on the appellants’ reply in the petition, was dealt with in paragraphs 4.103¬4.115, pages 35-37 of the appellants’ brief. Counsel cited so many cases on the requirements of the Interpretation on the exclusion of Sunday in computing time. Paragraph 4.103 -4.107, page 35, page 35 of the brief. The first and second respondents articulated their responses to the above arguments on paragraphs 4. 6. 1-4.6.5, pages 33-36 of the brief. Their salient arguments are: the appellants’ arguments are misconceived having regard to the case law on this point, paragraphs 4.6.4-4.6.5, pages 34-36 of the brief. The arguments of the third respondent on this issue span pages 31-34, paragraphs 9.2-9-12 of the brief. Like the other respondents, counsel debunked the arguments on the interpretation of paragraph 16 (1) and (2) (supra). The appellants offered their replies to these arguments in their reply brief. RESOLUTION OF THE ISSUE My Lords, in view of the earlier magisterial position of this court on the inapplicability of the Interpretation Act on the computation of time in election matters, Okechukwu v INEC and Ors [2014] 9 SCNJ 47, 78, per Ariwoola, JSC, this issue need not delay us further in this judgement. From a perusal of paragraphs 4.97-4.115, pages 34-37 of the appellants’ brief, it is not in doubt that the main plank of their contention is that, in the interpretation of the time frame stipulated in paragraph 16 (1) and (2) of the First Schedule to the Electoral Act, 2010 (as amended), the relevant instrument to be considered is section 15 (4) and (5) of the Interpretation Act, Cap 123, LFN, 2004. That done, this court should hold that the appellants’ reply was filed within time.

PAGE| 37 The simple answer is that the said Interpretation Act is inapplicable to this matter being an election matter, Okechukwu v INEC and Ors (supra). Thus, as his reply was not filed in strict fidelity to the time protocol ordained in paragraph 16 (supra), the lower court, rightly struck it out. This must be so because the timelines therein are sacrosanct due to the peculiar nature of election matters which are time-bound, Buhari v INEC and Ors [2008] 19 NWLR (pt 1120) 246. Strictly, speaking, this sort of invidious provision should not feature in a user-friendly judicial process. However, in the peculiar circumstance of the urgency involved in the determination of such electoral disputes, the much this court can do is to wink at the tyranny of deadlines entrenched therein. In effect, any process filed out of time is incompetent and is liable to be struck out, Okechukwu v INEC and Ors (supra) 79. This issue is, also, resolved against the appellant. In all, I find that there is no merit in the complaints with regard to issues two, three, four, five, six and seven. Although issue one was resolved in the appellants’ favour, it does not alter the fate of their appeal which is bound to fail. I, therefore, enter an order dismissing. Appeal dismissed and the parties are to bear their costs. APPEAL NO. SC. 204A/2015 FACTUAL BACKGROUND As observed at the outset of this judgement, the appellants filed a second appeal, as evidenced in the second Notice of Appeal, against part of the lower court’s judgement relating to the cross appeal of the first respondent. At the trial Tribunal, the first respondent had filed a motion on October 21, 2014 asking the tribunal for the reliefs subjoined hereunder: (1) An order of the Tribunal striking out the Petitioners’ Reply to the first respondent’s reply same having been filed out of time prescribed by paragraph 16 (1) of the First Schedule to the Electoral Act, 2010 (as amended); (2) An order of the Tribunal deeming the Petition as abandoned for the petitioners’ failure to apply for the issuance of Notice of pre-hearing session after the close of pleadings; and (3) An order of the Tribunal dismissing the petition for failure of the petitioners to apply for issuance of pre-hearing session before the expiration of the time prescribed by the Rules of the Honourable Tribunal

PAGE| 38 Issues were joined in the affidavit evidence of the parties. The parties, equally, filed written addresses. When the motions were ripe for hearing, the tribunal opted to hear it with the petition so as to deliver a composite judgement, comprising the ruling on the motion and the main judgement. On February 6, 2015, the tribunal delivered its ruling, holding that the appellants’ said replies were filed out of time. However, in its final judgement, it elided any reference to the said replies. This informed the decision of the first and second respondents to challenge the ruling as per their Notice of Appeal of February 18, 2015. After hearing the parties, the Court of Appeal [lower court], in its judgement of April 2, 2015, dismissed the appellant’s appeal. It, also, allowed the first respondent’s Cross Appeal in part. It struck out the appellants’ said replies. In addition, it dismissed the appellants’ petition as having been abandoned for their failure to apply for the issuance of pre-hearing Notice pursuant to paragraph 18 (1) of the First Schedule to the Electoral Act (supra). The appellants’ appeal in Appeal No SC 204A/2015 stems from these aspects of the lower court’s judgement in the Cross Appeal of the first respondent. The appellants formulated only two issues for the determination of this appeal, subject of their second Notice of Appeal [now, Appeal No 204A/2015. They are: (1) Whether the learned Justices of the Court of Appeal were right in the interpretation of paragraph IS (1) of the First Schedule to the Electoral Act, 2010 (as amended) in dismissing the appellants’ petition? (2) Whether the learned Justices of the Court of Appeal were right in their interpretation of paragraph 16 (1) and (2) of the First Schedule to the Electoral Act. 2010 (as amended) in striking out the appellants’ reply? On his part, the first respondent, rephrased the said two issues thus: (1) Whether the Court of Appeal was right in holding that the Tribunal ought to have dismissed the petition as having been abandoned? (2) Whether the Court of Appeal was right in holding that the tribunal ought to have made a consequential order striking out the replies after holding that the replies [sic, they] were filed out of time? Before dealing with these issues, I shall pause here to dispose of the first respondent’s Preliminary Objection, paragraph 2.1, page 5 of the brief filed on April 24, 2015.

PAGE| 39 PRELIMINARY OBJECTION This objection, which is similar to the objection in SC 204/2015, was expressed thus: At or before the hearing of this appeal, the first respondent shall raise objection that the appellants have abandoned Ground two of the Notice of Appeal because the issue purportedly distilled therefrom is at variance with the Ground of Appeal. In the said objection, the question of the introduction of a new party to the appeal was broached once more, just as the issue of the abandonment of Ground two in the Notice of Appeal was re-presented to this court for re-consideration. Parties canvassed arguments in favour of, and in opposition to this objection. RESOLUTION OF THE ARGUMENTS This objection is a repetition of the objection in Appeal No 204/2015 which had been disposed of at the outset of this judgement. For the avoidance of the indefensible wearisome repetition of the reasons advanced earlier for dismissing the said objection as unmeritorious, it shall suffice to state here that I adopt the said reasons for dismissing the self-same objections in Appeal No 204/2015 as my reasons for, equally, dismissing this objections in this Appeal [Appeal No 204A/2015]. Accordingly, I hereby enter an order dismissing the objection as unmeritorious. Since the objection of the second respondent is an exact copy of the first respondent’s objection, I have no hesitation in likewise dismissing it as lacking in merit. MAIN APPEAL [No 204A/2015] ARGUMENTS OF COUNSEL ISSUE ONE Whether the learned Justices of the Court of Appeal were right in the interpretation of paragraph 18 (1) of the First Schedule to the Electoral Act, 2010 (as amended) in dismissing the appellants’ petition? Learned senior counsel, Dr Alex Izinyon, as shown above adopted the brief filed on April 21, 2015 as the appellant’s arguments in respect of this appeal. On this issue, two main arguments were put forward. In the first place, it was submitted that the lower court erred when it held that the appellants’ failure to apply for the issuance of pre-hearing session notice amounted to

PAGE| 40 a complete abandonment of the petition, thereby dismissing it. It was pointed out that the tribunal did not strike out the petition. Rather, in the interest of justice, it saved the said petition. Counsel submitted that the provision dealing with pre-hearing session is procedural and cannot defeat the petition. In the second place, counsel contended that the tribunal was right in not dismissing the petition as an abandoned petition notwithstanding its finding that the appellants failed to apply for the pre-hearing notice within the seven days stipulated by paragraph 18 (4) and (5) of the First Schedule to the Electoral Act (supra). In the submission of learned senior counsel, as procedural provisions, the said paragraph 18 (4) and (5) prescriptions cannot warrant the striking out of a petition on the ground of jurisdiction which is part of subsrantive law, Abubakar v Nasamu [2012] 17 NWLR (pt 1330) 523; Saeed v Yakowa [2013] All FWLR (pt 692) 1650, 1686. He contended that the current trend is to allow aggrieved parties ventilate their grievances through legal means without being shut out on the altar of technicalities. He maintained that the trial Tribunal rightly relied on paragraph 53 (1) of the First Schedule (supra), urging the court to affirm the position that the petition should be heard on merit. FIRST RESPONDENT’S CONTENTION Having adopted the brief in respect of this appeal [No 204A/2015], Chief Olujinmi, SAN, pointed out that the appellants, as petitioners, were required to file a Notice of pre-hearing session within seven days after the close of pleadings. He explained that, the tribunal having found that the said pre-hearing notice was not filed within the time stipulated after dose of pleadings pursuant to paragraph 18 (1) (supra), ought to have dismissed the petition under paragraph 18 (4) (supra) as being abandoned, Enwezor v INEC [2009] 8 NWLR (pt 1143) 223, 237; Okereke v Yar’Adua [2008] 12 NWLR (pt 1100) 95; Dada v Dosunmu [2006] 18 NWLR (pt 1010) 134, 166; Mohammed v Martins Electronics {2009) LPELR -3708. He contended that where a statute stipulates how a particular act shall be done, failure to do so is fatal. He noted that the tribunal was in error to have placed reliance on paragraph 53 (1) (supra) to save the petition. He explained that nothing in this paragraph detracts from the provisions of paragraph 18 (4) (supra), hence the petition was liable to be dismissed, Inakoju v Adeleke [2007] 4 NWLR (pt 1025) 427, 590, 697; Maitsidon v Chidari [2008] 16 NWLR (pt 1114) 553, 575,. paragraphs F-G; Okereke v Yar’Adua (supra).

PAGE| 41 He canvassed the further view that the use of the word “shall” in paragraph 18 (4) (supra) is mandatory. He noted that the express provision of paragraph 18 (4) (supra) is that non-compliance with paragraph 18 (1) amounted to failure to prosecute which attracts the sanction of dismissal, Amaechi v INEC’ [2008] 5 NWLR (pt 1080) 227, 359, 360, paragraphs C-D; Abubakar v Nasamu (No 2) [2012] 17 NWLR (pt 1330); Saeed v Yakowa [2013] All FWLR (pt 692) 1650, 1686, 7410-7415. He contended that a literal interpretation of the above paragraph shows that the said provision of paragraph 53 (1) was intended to apply in such situations as, in the First Schedule, where no specific provision on the consequences that should follow any act of non-compliance was made. He took the view that the phrase “except otherwise stated or implied” qualifies or limits the application of paragraph 53 (1). He pointed out that paragraph 18 (4) expressly provided a definite line of action to be carried out by the tribunal. He maintained that paragraph 53 (1) only saves a petition or a proceeding where the consequence or non-compliance with any of the provisions of the Act is not expressly or impliedly stated to defeat the petition. In his submission, the tribunal wrongly relied on paragraph 53 (1) to preserve the petition which was abandoned. He pointed out that Abubakar v Nasamu (No 2) (supra) and Saeed v Yakowa (supra) did not factor in the exclusion clause in paragraph 53 (1), namely, “except otherwise stated or implied.” Above all, he contended, in those cases, the respondents were shown to have taken steps in the proceedings even with the knowledge of the alleged irregularity, hence, they were taken to have waived their rights. Contrariwise, in the instant case, the first respondent raised his objection before taking any fresh steps and it was the tribunal that ruled that it was going to hear the objection together with the substantive suit. He urged the court to resolve this issue against the appellant. RESOLUTION OF THE ISSUE I find sufficient merit in the contention of the respondents here. I endorse the unanswerable submission that the tribunal, having found that the said pre-hearing notice application was not filed within the time stipulated after close of pleadings pursuant to paragraph 18 (1) (supra), ought to have dismissed the petition under paragraph 18 (4) (supra) as being abandoned, Enwezor v INEC [2009] 8 NWLR (pt 1143) 223, 237; Okereke v Yar’Adua [2008] 12 NWLR (pt

PAGE| 42 1100) 95; Dada v Dosunmu [2006] 18 NWLR (pt 1010) 134, 166; Mohammed v Martins Electronics (2009) LPELR -3708. It is not in doubt that the draftsperson of the said Act, aware of the obvious time constraints on the tribunals dealing with election matters in complying with the timeframes therein, deliberately, wove some new case management techniques into the Act with a view to empowering them [trial Tribunals] to control and manage the proceedings expeditiously. Paragraph 18 (1) is one of such mechanisms. It is, thus, a deliberate device which erected time frames by calendaring the permissible periods for consummating or accomplishing certain steps within the time management regime created in the Act itself, Okechukwu v INEC (supra). The consequence is that if a petitioner fails to consummate the issuance of pre-hearing notice [Form TF007] within seven days, he cannot fall back on paragraph 53 (1), a provision which because Paragraph 18 (4) (supra) prohibits the extension of time, is inapplicable and, so, does not avail such a tardy petitioner. Contrary to the brilliant submissions of the appellants’ counsel, Abubakar v Nasamu (No 2) (supra) and Saeed v Yakowa (supra), decisions of this court, are, clearly, distinguishable. The reason is simple. The effect of paragraph 18 (4) (supra) on paragraph 53 (1) (supra) (supra) was not before this court in those two cases. They are, therefore, not authorities on the resolution of the issues in this appeal, namely, whether the said paragraph 53 (1) can save a petition in view of the exclusionary clause therein. In my view, it does not. There is, thus, no conflict between the position in this appeal and the positions in those two cases. Each case is decided based on its peculiar facts and surrounding circumstances. From the specific issues canvassed here – issues which were not presented to this court in those two cases. I have no hesitation in holding that the rationes decidendi in the said cases are inapplicable to the concrete question here, that is, whether trial Tribunal, rightly, prayed in aid the saving provision in paragraph 53 (1) in favour of the petitioners. For the reasons adduced above, it was wrong in so doing. The lower court, rightly, disagreed with the Tribunal on this point. I resolve this issue against the cross appellants. ISSUE TWO Whether the learned Justices of the Court of Appeal were right in their interpretation of paragraph 16 (1) and (2) of the First Schedule to the Electoral Act. 2010 (as amended) in striking out the appellants’ reply? On this issue, Dr Izinyon, SAN, canvassed the view that the lower court was wrong when it

PAGE| 43 struck out the appellants’ reply and reprimanded the tribunal for not striking out the petition, having found that the said reply was filed out of time. In his view, that was a narrow interpretation of paragraph 16 (1) and (2) (supra). Although conceding that the period stated in paragraph 16 (1) and (2) is five days, he maintained that governs the computation of such period of less than six days is the Interpretation Act excludes Sunday. Presuming this to be the correct position, he argued that the appellants’ reply which was filed on October 14, 2014 was within five days, that is, excluding Sunday, hence, the filing on October 14, 2014 was proper and valid, Etuk v Ikon and Ors (2011) LPELR 4045 (CA) where the Court of Appeal interpreted the provision of paragraph 16 (1) relying on external aids to exclude the date of service. He urged the court to approve of the reasoning in that case. Learned senior counsel, citing section 15 (4) and (5) of the Interpretation Act, which stipulate that Sunday and Public holidays should be discounted in computing a period that does not exceed six days and several cases on those sections, contended that by the above provisions, Sunday should be discounted in computing the five days period within which the reply was to be filed. In his view, therefore, the appellants’ reply was not filed one day outside the five days provided under paragraph 16 (1), Etuk v Ikon and Ors (supra). He disclaimed the relevance of the cases which the tribunal relied on, paragraph 1.45, page 9 of the brief. He re-iterated the earlier submission that paragraph 16 (1) and (2) provisions are procedural and cannot override the substantive law which governs elections, Abubakar v Nasamu (supra) and Saeed v Yakowa (supra). He urged the court to invoke section 22 of the Supreme Court Act and consider the replies which the appellants filed having regard to the fact that the appellants already had evidence and new facts in the reply, paragraphs 1.49-1.50, pages 9-10 of the brief. He urged the court to allow the appeal. FIRST RESPONDENT’S REPLY On his part, Chief Olujinmi, SAN, pointed out that, although the tribunal endorsed their [respondents’] submissions that the reply was filed out of time, it failed to pronounce on the effect of this failure, pages 7403 – 7404, Vol 14 of the record. He submitted that the lower court was right in its view that the tribunal was wrong in failing to strike out or dismiss the appellants’ incompetent replies, having found that they were filed out of time, Okechukwu v INEC [2014] 17 NWLR (pt 1436) 255, 285-286, para D – A. He pointed out that paragraph 16 (2) strictly forbids the tribunal from extending time for filing the said replies, thereby treating

PAGE| 44 as unpardonable such default to file reply within five days. He urged the court to endorse the findings of the lower court on this issue. The second respondent’s brief, filed on April 24, 2015, was an exact copy of the first respondent’s brief. The arguments of the third respondent were similar to the arguments of the first respondent. They all invited the court to sustain the position of the lower court. APPELLANTS’ REPLY TO THE THIRD RESPONDENT Relying on the brief filed on April 30, 2015, in reply to the third respondent’s brief, Dr Izinyon, SAN, re-iterated his earlier submissions on paragraph 18 (1), [paragraph 1.3, page 1]; the Interpretation Act, [paragraph 1.4, page 1 and the cases of Saeed v Yakowa (supra) and Abubakar v Nasamu (supra). RESOLUTION OF THE ISSUE This issue had been dealt with in the main appeal [Appeal No 204/2015]. I, therefore, adopt my reasons in the main appeal as my reasons for resolving this issue against the cross appellants in this cross appeal. CROSS APPEAL OF THE FIRST RESPONDENT/CROSS APPELLANT What prompted this cross appeal was the ruling of the trial Tribunal which over-ruled the objection of the first respondent [now, cross appellant] to the admissibility of three categories of documents. They are: (a) Exhibits 1-185 and 249-341. It was their contention that, being pubic documents, they were improperly certified. The trial Tribunal, as shown above, overruled this objection; (b) They also objected to the admissibility of exhibits 243 and 342, computer-generated documents on the ground that they were tendered in breach of section 84 of the Evidence Act, 2011. Essentially, the argument of the cross respondent was that only documents generated from the internet fall within the definition of computer-generated documents, The tribunal overruled the objection; (c) Lastly, there was the objection to the admissibility of exhibits 368-380, ballot papers which were tendered by the first and second cross respondents. Upon the dismissal of these objections, the cross appellant appealed to the lower court which

PAGE| 45 allowed the appeal in part. Aggrieved by the lower court’s view on the admissibility of the above documents, the cross appellant has, further appealed to this court through the Notice of Cross Appeal of April 15, 2015. They formulated three issues, viz, (1) Whether the learned Justices of the Court of Appeal did not err in law in their decision dismissing the objection of the cross appellant to the admissibility of exhibits 1-185 and 249-341 tendered by the first and cross respondents? (2) Whether the learned appellate Justices were right in overruling the objections of the cross appellant to the admissibility of exhibits 243 and 342 which were computer-generated documents but which were tendered in evidence by the cross respondents without complying with the mandatory requirements of section 84 of the Evidence Act? (3) Whether the learned Justices of the Court of Appeal were right in their decision dismissing the objection of the cross appellant to the admissibility of exhibits 364-380 which were “sacks said to contain ballot papers2 and wrongly relied by the Tribunal? Expectedly, very divergent arguments were proffered in respect of the propriety of the position of the lower court, see, paragraphs 3.1 – 3.47, pages 4-16 of the cross appellant’s brief; paragraphs 5. 01-7.4, pages 3¬7 of the brief of the first and second cross respondents’ brief of April 29, 2015. RESOLUTION OF THE ARGUMENTS Since the three issues hinge on the question of the admissibility of the three categories of documents, they will be resolved together under one sub-heading of admissibility of documents. ADMISSIBILITY OF DOCUMENTS The first documents, as shown above, are public documents [exhibits 1-185]. I, entirely, agree with the submissions of the cross appellant with regard to their admissibility. Pursuant to section 104 of the Evidence Act, 2011, the said documents which, merely, had CTC stamps bearing engraved signatures on them without the subscription of the name and the official title of the officer who certified them, were not properly certified in conformity with the mandatory requirements of section 104 (supra), Tabik Investment Ltd v GTB Plc [2011] All FWLR (pt 602) 1592; Nwabuoku v Onwordi [2006] All FWLR (pt331) 1236, 1251-1252. Most worrisomely, there are several pencil inscriptions, evidently, additions to the contents of the documents.

PAGE| 46 These alterations, wittingly or unwittingly, had the effect of supplanting the main jurisprudential rationale for the statutory requirement that only duly certified copies of public documents are admissible where the parties do not intend to produce their originals, Tabik Investment Ltd M GTB Plc [2011] All FWLR (pt 602) 1592, 1608; Odubeko v Fowler [1992] 7 NWLR (pt 308) 637; Onubruchere v Esegine [1986] 1 NWLR (pt 19) 79; [1986] 2 SC 385; Ogbu v Ani [1994] 7-8 SCNJ (pt 11) 363; Goodwill and Trust Inv Ltd v Witt and Busch Ltd [2011] All FWLR (pt 576) 517. I resolve this issue in favour of the cross appellant. As noted above, the main plank of the argument of the first and second cross respondents, with regard to the second issue above, was that only internet-generated documents are caught by the admissibility requirements of section 84 of the 2011 Evidence. With profound respect, this argument is untenable, S. Mason (ed), Electronic Evidence: Disclosure, Discovery and Admissibility, (London: LexisNexis, Butterworths, 2007) passim; H. M. Malek (ed), Phipson on Evidence (London: Sweet and Maxwell, 2010) (Seventeenth Edition) passim; R v Shepherd[1993] 1 All ER 225, 231 [a decision of the defunct House of Lords]; Kubor v Dickson [2013] 4 NWLR (pt 1345) 534, 577- 578. Even the very chapeau or opening statement in section 84 (1) contradicts this submission. The relevant phrase here is “a statement contained in a document produced by the computer…” Interestingly, the draftsperson did not leave the meaning of the word “computer” to conjecture. In section 258 (1), the Act defines “computer” to mean “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.” In effect, exhibits 243 and 342, being computer-generated documents, could only have been admissible in evidence upon compliance with the requirements of section 84 (supra), Kubor v Dickson (supra). The lower court was, therefore, in error in this regard. I resolve this issue in favour of the cross appellant. Finally, having resolved the issue of “dumping” of documents on the trial Tribunal earlier in this judgement, I adopt my reasoning, with all the decisions of this court in support thereof, as my reasons for finding in favour of the cross appellant on this issue. Having resolved the three issues in favour of the cross appellant, I have no hesitation in allowing this cross appeal. Cross appeal is allowed. For the avoidance of any doubt, the orders of this court are as follows:

PAGE| 47 (a) There being no merit in the preliminary objections in respect of Appeal No SC 204/2015, I hereby make an order dismissing them; (b) There being no merit in the main appeal in Appeal No SC 204/2015, it [the said appeal – SC 204/2015] is, also, dismissed; (c) The preliminary objections in Appeal No 204A/2015 are, equally, discountenanced as being unmeritorious (d) Finding no merit in Appeal No SC 204A/2015, I hereby dismiss it and (e) Cross Appeal on the admissibility of documents is hereby allowed; (f) I, further, affirm the concurrent decisions of the trial Tribunal and the lower court on the due election and due return of the first respondent, Ogbeni Rauf Adesoji Aregbesola, as the Governor of Osun State. These shall be the orders of this court. Parties are to bear their costs. JOHN AFOLABI FABIYI. JSC.: I have had a preview of the judgment just handed out by my learned brother – Nweze, JSC. I agree with the reasons therein advanced to arrive at the conclusions contained in the comprehensive judgment. The appeal is against the judgment of the Court of Appeal, Akure Division (the court below) delivered on the 2nd day of April, 2015. Therein, the judgment of the trial Tribunal sitting in Osun State delivered on 6th February, 2015 was affirmed by the court below. The 3rd respondent (INEC) in exercise of its powers under the Constitution of the Federal Republic of Nigeria (CFRN) 1999, as amended, and the Electoral Act, 2010, conducted election to the office of Governor of Osun State on Saturday, 9th August, 2014 in all the 30 Local Government Areas of Osun State. At the conclusion of the election, the 1st respondent, the candidate of the 2nd respondent won the majority of lawful votes cast at the election and was declared as the Governor elect of Osun State by the 3rd Respondent. The 1st and 2nd appellants felt unhappy with the declaration of the 1st respondent as the winner and filed a petition before the trial Tribunal based on three grounds to wit (1) 1st respondent was not duly elected by majority of the lawful votes cast at the election; (2) election being invalid for reason of corrupt practices and (3) election being invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), the Manual for Election Officials 2014 and Guidelines issued for the conduct of the election.

PAGE| 48 Parties filed necessary processes. Preliminary objections were filed. The trial Tribunal took them along with the hearing of the petition proper. In its judgment of 6th February, 2015, the trial Tribunal dismissed the petition and, in the main, affirmed the return of the 1st respondent as the duly elected Governor of Osun State. The appellant felt irked wit the position taken by the trial Tribunal and appealed to the court below. In the same vein a second appeal tagged SC. 204A/2015 was filed in respect of a cross-appeal filed thereat. The court below heard the appeal and affirmed the judgment of the trial Tribunal on 2nd April, 2015. The appellant has decided to further appeal to this court. The issues canvassed before this court have been set out in the lead judgment. I need not repeat them here to conserve time and space. Issue 1 relates to the so-called admission in the chart contained in the address of the 1st respondent’s counsel before the trial Tribunal. It seems that the appellant’s counsel read the issue superficially and attempted to cling to it rather tenaciously. The trial Tribunal found that same did not amount to admission. It must be noted that written address by counsel cannot be equated with evidence. The court below affirmed the position taken by the trial Tribunal. I form the view that they were right. I should note it briefly that the appellants sought declaratory reliefs before the Tribunal. They had the burden of proof to establish such declaratory reliefs to the satisfaction of the court or Tribunal; as herein. Such declaratory reliefs are not granted even on admission by the defendant where a claimant, as herein, fails to establish his entitlements to the declaration by his own evidence. See: Dumez Nig. Ltd vs. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373; AH Ucha vs. Martins Elechi (2012) MRSCJ Vol 1 79 at 104; (2012) 4 SCM 28 (2012) 12 NWLR (Pt 1317) 230. In short, the court below was correct when it affirmed the position taken by the trial Tribunal that the appellants who sought declaratory reliefs failed to discharge the burden of proof placed on them by the law. The appellants tried to make a mountain out of their allegation of non-compliance with Electoral Act 2010 (as amended) and guidelines for election officers. The trial Tribunal found that there was no concrete and credible evidence in support of same. The court below affirmed same. It has been consistently reiterated by this court that for a petition to succeed on non-

PAGE| 49 compliance with the provisions of the Electoral Act, the petitioner must prove not only that there was non-compliance with the provision of the Act but that same substantially affected the result of the election. In other words, the petitioner has two burdens to prove – 1. That the non-compliance took place. 2. That the non-compliance affected the result of the election. The decisions in the cases of Buhari vs. INEC (2008) 19 NWLR (Pt. 1120) 246 at 435; Buhari vs. Obsanjo (2005) 13 NWLR (Pt. 941) 1 at 80; Akinfosile vs. Ijose (1960) SCNLR 447; Awolowo vs. Shagari (1979) 6-7 SC 51 are directly in point here. The trial Tribunal found that the appellants failed to prove substantial non-compliance. Same was affirmed by the court below. The appellants attempted to push the burden of proof of their declaratory reliefs at the door steps of the respondents. Such was not in tune with the law. Since the appellants failed to prove non-compliance, they could not depict, in clear terms, that non-compliance substantially affected the outcome/result of the election. The issue must be resolved in favour of the respondents; without much ado. With respect to allegation of corrupt practices thrown up by the appellants the tribunal clearly appreciated that same should be servered from allegation of non-compliance. It found that no credible evidence was led to prove corrupt practices. Allegation of corrupt practices touch on the realm of criminality. Same must be proved beyond reasonable doubt. See Nwobodo vs. Onoh (1984) 1 All NLR 1. With due diffidence, outlandish address on behalf of the appellants without evidence, was to no avail. There was the complaint that the 3rd respondent – INEC did not call witnesses to clear itself. There was no cause to call on the 3rd respondent to call witnesses as it devastated the evidence of the appellants through cross-examination which is a vital tool for perforating falsehood if properly employed; as herein. The appellants dumped document, on the Tribunal; to no avail. A court or Tribunal should not embark upon cloistered justice by making enquiry into the case outside the court; not even by examination of documents which were in evidence when same had not been examined in the open court. A judge is an adjudicator; not an investigator. Duriminiya vs. C.O.P (1961) NNLR 70 at 74; Dennis Ivienagbor vs. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; ACN vs. Sule Lamido (2012) 8 NWLR (Pt 1303) 560 at 580. The trial Tribunal was in order in not placing premium on such dumped documents by the appellants. The court below acted in the right direction when it affirmed same. See Ali Ucha vs. Martins Elechi (supra).

PAGE| 50 Apart from the above, the concurrent findings of the trial court and the court below was that PWT’s evidence cannot be alright to establish what transpired throughout the State. He never saw any act of corrupt practices. His evidence did not provide nexus for the document dumped on the Tribunal by the appellants. Again, see Akwe Doma vs. INEC & Ors. (2012) LPELR 782. The appellants tried to place premium on the evidence adduced by PW15 and PW38 who were referred to by them as expert witnesses. These witnesses agreed that any literate person can look at the documents considered by them and make observations. They admitted that they were paid for the job carried out by them on behalf of the appellants. Even under cross-examination, they variously admitted that their evidence was false. It was not surprising that the Tribunal, as well as the Court below, did not place serious premium on their evidence. Same was in tune with the position in the deck ion of this court in ACN v. Sule Lamido (2012) 8 NWLR (Pt 1303) 560. In respect of issue 6, the appellants’ (Petitioners’) Reply to the 3rd respondent’s Reply which was filed out of time was struck out by the Tribunal and rightly affirmed by the court below sequel to paragraph 16 (1) and (2) First Schedule to Electoral Act 2010 (as amended). It is clear that Election Petition proceedings are sui generis. Time for filing proceedings is sacrosanct. Interpretation Act provision is out of the matter. The decision in the case of Ikahriale vs. Okoh (2009) 12 NWLR (Pt. 1154) 1 at 38 is clearly in point. See also Tony Nwoye Okechukwu vs. INEC & Ors. (2014) 17 NWLR (Pt. 1436) 255 at 284. For the above reasons and those carefully set out in the lead judgment, I have no doubt that the appeal in SC. 204/2015 is devoid of merit. It is hereby dismissed. I adopt the reasons in the lead judgment to dismiss Appeal No. SC. 204A/2015. I have nothing new to add and hereby keep my peace. Cross-appeal on admissibility of documents is hereby allowed. In all, the judgment of the trial Tribunal which sustained the election of the 1st respondent as the duly elected Governor of Osun State which the court below rightly affirmed is hereby confirmed by me.

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SC. 204/2015