Senator Usman Jibrin Wowo & Anor. V. Senator Adamu Muhammad Sidi-ali & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the Judgment of the national Assembly Election Petition Tribunal sitting at Abuja delivered on the 22nd day of October, 2008.

The Brief fact of the case is as follows:-

The 1st Appellant, a member of the All Nigeria Peoples Party (ANPP) the 2nd Appellant, was nominated as 2nd Appellant’s candidate for the election to the Senate of the Federal Republic of Nigeria for the Federal Capital Territory (FCT) Senatorial District, Abuja held on the 5th and 6th day of April, 2008.

The 2nd Respondent, Peoples Democratic Party (PDP) also a registered Political Party in Nigeria, sponsored the 1st Respondent as its candidate at the aforementioned bye-election.

The 3rd Respondent, Independent National Electoral Commission (INEC), is the body established by the Electoral Act, 2006 and the 1999 Constitution with the responsibility of organizing, conducting and supervising the conduct of the Election, amongst other offices or position, into the office of the Senate of the Federal Republic of Nigeria.

The 3rd to 662nd Respondents are agents, staff or servants or ad-hoc staff of the 3rd Respondent who in various capacities as Presiding Officers, Electoral Officers and Returning Officer conducted the aforesaid bye-election at the various polling units and collation centers.

Following the aforesaid Bye-Election, the scores of the candidates were declared by the 3rd and 4th Respondents and the 1st Respondent was returned elected on the 7th day of April, 2008 having purportedly scored the highest votes.

The Appellants being aggrieved and dissatisfied with the said declaration and return of the 1st Respondent approached the lower Tribunal on the 5th day of May, 2008.

The Petition was based on the following grounds:-

“(a) That the 1st Respondent who was sponsored by the 2nd Respondent was not qualified to contest the election held on the 5th and 6th April, 2008.

(b) That the election was invalid by reason of corrupt practices or non compliance with the spirit and provision of the Electoral Act 2006 as amended.

(c) That the 1st Respondent was not duly elected by majority of lawful votes cast at the 5th and 6th April, 2008 Senatorial Election for the Federal Capital Territory, Abuja.”

The Appellants on the basis of the above grounds sought the following reliefs:-

“(i) That the 1st Respondent having not validly resigned his appointment as public servant and having failed to withdraw his membership of the All Nigeria Peoples Party (ANPP) in accordance with the provisions of the Constitution of the Federal Republic of Nigeria was not qualified to contest the FCT Senatorial Election held on 5th and 6th of April, 2008.

(ii) That the Senatorial Bye-Election of April 5th and 6th of 2008 conducted by the 3rd Respondent was marred by irregularities, corrupt practices and outright rigging.

(iii) That the postponement of the Senatorial Election at about 5 p.m. on the 5th day of April, or thereafter in Abuja Municipal Area Council to the 6th day of April, 2008 is unlawful, unconstitutional and a total violation of the provisions of the Electoral Act 2006.

(iv) That the result of the election conducted by the 3rdRespondent in Abuja Municipal Area Council (AMAC) on the 6th day of April, 2008 be cancelled.

(v) That the 1st Respondent was not duly elected and did not score the majority of lawful votes cast at the election in the Federal Capital Territory Senatorial Bye-Election held on the 5th and 6th day of April, 2008.

(vi) AN ORDER declaring the 1st Appellant as the winner of the Senatorial Election of 5th and 6th April, 2008 in the FCT having scored the highest number of lawful votes of the total votes cast in the said election.

Alternatively

(vii) AN ORDER nullifying the entire Senatorial Election conducted in the Federal Capital Territory Abuja on the 5th and 6th April, 2008 on grounds of non compliance with the provision of the Electoral Act 2006 and substantial irregularities.

(viii) AN ORDER for afresh bye-election in Abuja Municipal Area Council of the Federal Capital Territory Abuja in accordance with the provision of the Electoral Act 2006.”

Upon conclusion of Pre-trial Session, the Appellants opened their case, called a total of 9 witnesses and tendered several Exhibits. In defending the Petition, the 1st Respondent called 6 witnesses; the 2nd Respondent called 3 witnesses while the 3rd – 662nd Respondents called 8 witnesses as well as tendered Exhibits.

The Lower Tribunal delivered its Judgment wherein the Petition was dismissed. The Appellants being dissatisfied had by a Notice of Appeal dated the 29th day of October, 2008 and filed on the 31st day of October, 2008 appealed against the Judgment of the Lower Court.

The Appellants’ Notice of Appeal contained 5 Grounds of Appeal but was later amended to 6 Grounds of Appeal by the leave of the Court obtained on the 6th day of May, 2009.

The Appellants’ Amended Brief of Argument dated 21st day of April, 2009 and filed same day was deemed filed on the 6th day of May, 2009. The 1st Respondent’s Brief of Argument dated 11th May, 2009 was filed same day whilst the 2nd Respondent’s Amended Brief of Argument was dated and filed on 3rd day of June, 2009, but deemed filed on the 30th day of September, 2009. The 3rd-662nd Respondents’ Amended Brief of Argument dated 22nd May, 2009 and filed on the 25th day of May, 2009 but deemed filed on the 30th day of September, 2009. Parties therefore exchanged their Briefs.

Appellants’ Reply Brief to 2nd Respondent’s Amended Brief was dated and filed on the 17th day of June, 2009; whilst the Appellants’ Reply Brief to 3rd-662nd Respondents’ Brief dated the 26th day of January, 2009 and filed same day was deemed filed on the 30th day of September, 2009.

From the six grounds of Appeal contained in the Amended Notice of Appeal dated and filed on the 21st day of April, 2009, two issues were distilled on behalf of the Appellants for the determination of this Appeal. They are as follows:-

“1. Whether or not the 1st Respondent was qualified to contest the bye-election of the 5th and 6th

April, 2008 to the office of Senator of the Federal Republic of Nigeria representing the Federal

Capital Territory, Abuja (Grounds 1 and 2).

2. Whether having regards to the evidence led by the Appellants in this case, the Tribunal was right in holding that the 1st Respondent won the FCT Senatorial Election held on the 5th and 6th April, 2008 by majority of lawful votes (Grounds 3,4,5 and 6 of the Amended Notice of Appeal).”

On behalf of the 1st Respondent, two issues were also distilled for the determination of this Appeal. They are as follows:-

“1. Whether or not the 1st Respondent resigned his membership of All Nigeria Peoples Party (ANPP) to make him qualified to contest the bye election of the 5th and 6th April, 2008 to the office of Senator representing the Federal Capital Territory in the National Assembly on the Platform of Peoples Democratic Party (PDP).

2. Whether or not the Trial Tribunal was right to hold that the allegation of multiple thumb printing of ballot papers made by the Petitioners against the 1st Respondent was not proved.”

On behalf of the 2nd Respondent, a Notice of Preliminary Objection on point of law was raised urging this Honourable Court to strike out issues 2 and 3 formulated by the Appellants as incompetent. The 2nd Respondent, in the alternative, adopted the issues as formulated by the Appellants without prejudice to the objection earlier raised.

On behalf of the 3rd -662nd Respondents, the issues as formulated by the Appellants were also adopted for the formulation of this Appeal.

I have earlier in this Judgment said that the 1st Respondent also formulated two issues for the determination in this Appeal. The issues formulated by both the Appellants and the 1st Respondent are identical. However, I prefer the issues as formulated by the Appellants and I shall adopt same for the determination of this Appeal.

The 2nd Respondent in its Brief raised a preliminary objection on point of Law on the following grounds:-

1. Issue 2 does not arise from any of grounds 3,4 and 5 of the appeal.

2. Issue 3 does not arise from any of grounds 3,4 and 5 of the appeal

3. Issues 2 and 3 are incompetent on ground of duplicity both being based on the same grounds 3,4 and 5 of the appeal.

4. Grounds 3,4 and 5 are deemed abandoned since no valid issues have been formulated and argued on them.

5. Ground 3 did not arise from the judgment of the lower Court.

Chief (Hon.) Olusola Oke, Counsel for the 2nd Respondent submitted that it is settled Law that issues for determination must relate or tie to the grounds of appeal and that where such issues do not tally or relate to the grounds of appeal, they become incompetent and deemed non-issues and should be ignored and struck out. He referred the Court to the cases of:-

Ogebe v. Ometsome (1999) 6 NWLR Pt. 608 Page 59; Owners of M/V Gongola Hope & anor. v. Smurfitcases Nig. Ltd. & anor. (2007) 6 SC Pt. 11 Page 58 at 73.

Learned Counsel further submitted that issues 2 and 3 formulated by the Appellants do not derive from grounds 3,4 and 5 of the appeal. He maintained that they are therefore hanging in the air and consequently incompetent.

Chief (Hon.) Olusola Oke pointed at the fact that it is manifestly clear that there is no complaint(s) in grounds 3,4, and 5 about the issue of who scored majority of lawful votes cast at the election or whether the Appellant did or did not discharge the burden of proof to entitle them to the judgment of the Trial Tribunal.

He argued that the gist of ground 3 is a complaint about failure of the Tribunal to accept the alleged uncontradicted evidence of PW6; ground 4 is a complaint against the finding of the Tribunals that Exhibit P.6 1-556 is worthless, vague and incurably defective and rejected whilst ground 5 is a complaint against the finding of the Tribunal that the allegation of multiple thumb printing was not proved.

Learned Counsel submitted that none of these three complaints above can reasonably give rise to issues 2 and 3. He maintained that that being so, issues 2 and 3 are without foundation and should be ignored by this Honourable Court as same is incompetent and incurably so.

Chief (Hon.) Olusola Oke further submitted that it also follows from the above that grounds 3, 4 and 5 from which no issues have been formulated and argued are in Law deemed abandoned and liable to be struck out. He referred the Court to:-

Fadiora v. Gbadebo (1987) B.S.C.; Oyo State Government v. Fairlakes Hotels Ltd. (1988) 5 NWLR Pt. 92 Page 1.

Learned Counsel also contended that ground 3 is incompetent for not deriving from the judgment of the Trial Tribunal.

He maintained that the Law is settled that ground of appeal must constitute a complaint against the decision of the lower Court and it is therefore not only a requirement that issues for determination must be in consonance with grounds of appeal, the ground of appeal must also flow from the judgment appealed against, otherwise it is incompetent. He referred to the cases of:-

Western Steel Works Ltd. v. Iron & Steel Workers Union of Nig. (1987) 1 NWLR Pt. 49 Page 284 at 304; Onyensoh v. Nnebedum (1992) 3 NWLR Pt. 229 Page 315; Olowosago v. Adebanjo (1988) 9 S.C. Page 87.

Learned Counsel for the 2nd Respondent argued that there is nowhere in the judgment of the lower Court where it agreed that the testimony of PW6 was uncontradicted as alleged in ground 3. He referred the Court to Page 2747 of the Record of Appeal on the finding of the Tribunal.

He maintained that in the face of the finding of the Tribunal, ground 3 of the appeal cannot be said to derive from the judgment being attacked and that not deriving from the judgment of the Tribunal, ground 3 is incompetent and any issue formulated on it is incompetent.

Learned Counsel submitted that the Law is settled that where Issues are formulated based on competent and incompetent grounds, the issue is vitiated by the mixture of competent and incompetent grounds as it is not the duty of the Appellate Court to excise the incompetent ground from the competent ground in order to determine the issue formulated.

He maintained that in such circumstance, the duty of the Appellate Court is to treat such issue as incompetent and accordingly discountenance it. Learned Counsel referred to the case of:-

UBA Plc. v. ACB Nig. Ltd. (2005) 12 NWLR Pt. 939 Page 232.

Chief (Hon.) Olusola Oke further submitted that the Appellants are guilty of duplicity in the formulation of issues 2 and 3. He maintained that it is not available in Law to an Appellant to formulate two different issues from the same grounds or the same set of grounds of appeal.

Learned Counsel referred the Court to page 9 of the Appellants’ Brief of Argument and maintained that Issues 2 and 3 are both derived from grounds 3, 4 and 5.

He submitted that this is not legally permissible as the same set of Grounds of Appeal cannot give rise to two different issues. Learned Counsel maintained that it is too late in the day for the Appellants to reclassify the grounds of appeal to accommodate the two issues formulated from them and that it is not the duty of the Court to do for the Appellants that which they did not do for themselves.

He further submitted that grounds 3, 4 and 5 from which no competent issue has been formulated and argued are deemed abandoned. Learned Counsel referred the Court to the cases of:

Iweka v. SCOA (Nig.) Ltd. (2000) 7 NWLR Pt. 664 Page 325; Ikelama v. Dekema (2008) FWLLR Pt. 933 Page 1376.

Learned Counsel urged this Honourable Court to uphold this preliminary objection.

In his reaction to the Preliminary Objection, S.I. Ameh SAN, Counsel for the Appellants stated that the Appellants had filed an Amended Notice of Appeal and amended their Appellants’ Brief.

Learned Senior Counsel maintained that the Appellants’ Amended Notice of Appeal and the Amended Appellants’ Brief were filed with the leave of this Honourable Court on 21st April, 2009 and are dated 20th April, 2009.

He submitted that having regard to the Amended Notice of Appeal and the Amended Brief of Argument, the Notice of Preliminary Objection set out and argued at pages 6-12 of the 2nd Respondent’s Brief have been overtaken as the Amended Notice of Appeal as well as the Amended Appellants’ Brief have clearly taken care of the complaints in the Notice of Preliminary Objection.

Learned Senior Counsel pointed out that for instance there is no issue 3 in the Amended Appellant’s Brief nor is there a proliferation of issues therein. S.I. Ameh SAN further submitted that the Notice of Preliminary Objection was merely given in the 2nd Respondent’s Brief without being filed as a separate process as required by Order 10 Rule 1 of the Rules of this Court. He maintained that this is fatal and renders the Objection incompetent in its entirety and referred the Court to the cases of:-

Nsirim v. Nsirim (1990) 3 NWLR Pt. 138 Page 285 at Page 297; Savannah Bank (Ni.g) Plc. v. P.M.S. Ltd. (1999) 10 NWLR Pt. 621 Page 160 at 164 pa ras. D-G.

Learned Senior Counsel on the whole urged the Court to so hold and strike out the Notice of Preliminary Objection.

It is trite that where a Preliminary Objection is raised as to the competence of an Appeal, the Preliminary Objection must be entertained and determined first before any further step is taken towards the determination of the substantive issue(s) raised in the Appeal. See

Ngige v. Obi (2006) 14 NWLR Pt. 999 page 1;

Abiola v. Olawoye (2006) 13 NWLR Pt. 996 page 1;

U. B. A. Plc v. A. C. B. (Nig) Ltd. (2005) 12 NWLR Pt. 939 page 232;

Adetoro v. Ogo Oluwa Kitan Trading Co. (2002) 9 NWLR Pt. 771 page 157.

A Preliminary Objection should only be taken where if successful, the Appeal would abate because the Appeal is incompetent or fundamentally defective.

However, a Preliminary Objection ought not to be entertained where an attack on one or more grounds even if sustained, would not bar the other competent grounds from being heard. See Ike v. Ibe (2009) All FWLR Pt. 488 page 315 at 712; N. E. P. A. v. Ango (2001) 15 NWLR Pt. 737 page 627.

The point of Preliminary Objection raised by learned Counsel to the 2nd Respondent, Chief Olusola Oke is to the effect that the issues formulated from the Grounds of Appeal filed by the Appellants are prolix. He also contended that Ground 3 contained in the Notice of Appeal was not derived from the Judgment being attacked and that the issue formulated from the said Ground is incompetent.

It is worthy of note that the Appellants in an application on Notice dated 20/4/2009 and filed on 21/4/2009 prayed for and were granted the following Orders:-

“1. AN ORDER granting leave to the Appellants/Applicants to file and argue an additional ground of appeal as set out in the FIRST SCHEDULE hereto.

2. AN ORDER granting leave to the Appellants/Applicants to amend their Notice of Appeal by adding the said additional ground as Ground Six therein and amending the existing Ground Three therein in the manner shown in the SECOND SCHEDULE hereto.

3. AN ORDER granting leave to the Appellants/Applicants to amend their Appellants’ Brief of Argument by deleting Issue Three therein, merging the argument thereon with those canvassed under Issue Two and rephrasing the existing Issue Two in the Appellants’ Brief in the manner set out in the THIRD SCHEDULE hereto.

4. AN ORDER deeming as properly filed and served the Amended Notice of Appeal attached herewith and marked EXHIBIT WOWO 1 and the Amended Brief of Argument attached herewith and marked EXHIBIT WOWO 2, necessary filing fees having been paid.

5. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

Pursuant to the grant of this Orders on 6/5/2009, the Appellants filed the following Grounds of Appeal (without their particulars):-

“GROUNDS OF APPEAL

GROUND ONE

The Learned Tribunal Chairman and members erred in law when they held that the 1st Respondent was qualified to contest the Senatorial Election held in the Federal Capital Territory on the 5th and 6th April, 2008.

GROUND TWO

The Learned Tribunal Chairman and members erred in law when they held that the letter of resignation and acceptance by All Nigeria Peoples Party (ANPP) and letter of acknowledge from Minister of the Federal Capital Territory are enough proof of resignation by the 1st Respondent.

GROUND THREE

Having held that PW6 was an expert, the Learned Tribunal Chairman and members erred in law when they held that the evidence of Pw6 was contradicted by cross examination and further held the Respondents are not bound to prove a rebuttal evidence.

GROUND FOUR

The Learned Trial Tribunal erred in law when they held that the forensic report Exhibit P6 1-556 is worthless, vague and incurably defective and rejected.

GROUND FIVE

The Learned Tribunal Chairman and members erred in law when they held that the allegation of multiple thumb printing was not proved by the Petitioners at the Lower Tribunal.

GROUND SIX

The trial Tribunal erred in law when it held thus:

‘On the final issue which is whether the 1st Respondent was duly elected by majority of lawful votes cat at the election, the Tribunal, having rejected the Report (Exhibit P7B) …. and also EXHIBITS P6A1-556, we hereby find that the Petitioners have failed to prove that the 1st Petitioner score majority of lawful votes cast at the election. We hereby hold that the Results as declared and announced by INEC in respect of the election of the FCT Senatorial District held on the 5th and 6th April, 2008 was genuine, correct, lawful and authentic and we so hold. The score remains that the 1st Respondent scored 46, 736 (Forty-Six Thousand, Seven Hundred and Thirty-Six) votes while the 1st Petitioner scored 28,118 (Twenty Eight Thousand, One Hundred and Eighteen) votes. In the absence of any further proof, the Petition ought to be dismissed and the election and return of the 1st Respondent be affirmed. Based on this principle of law, we hereby hold that the 1st Respondent Hon. Adamu M. Sidi-Ali won the election with majority of lawful votes cast and we hereby uphold the result of the election’ and thereby occasioned a miscarriage of justice.”

From the above Grounds of Appeal, two issues were distilled which have been reproduced earlier in this Judgment but shall be reproduced again for the sake of emphasis. They are as follows:-

“1. Whether or not the 1st Respondent was qualified to contest the bye-election of the 5th and 6th April, 2008 to the office of Senator of the Federal Republic of Nigeria representing the Federal Capital Territory, Abuja (Grounds 1and 2).

2. Whether having regards to the evidence led by the Appellants in this case, the Tribunal was right in holding that the 1st Respondent won the FCT Senatorial Election held on the 5th and 6th April, 2008 by majority of lawful votes (Grounds 3,4,5 and 6 of the Amended Notice of Appeal).”

The rule against proliferation of issues is that not more than one issue can be distilled out of a Ground of Appeal. However, an issue can be distilled out of one or more Grounds of Appeal. It follows therefore that an issue can cover a number of Grounds of Appeal. It is wrong to split a Ground of Appeal into a number of or several issues. See

Eke v. Ibe (supra) at 325;

Yadis Nigeria Ltd v. Great Nigeria Insurance Co. Ltd (2007) All FWLR Pt. 370 page 1348;

Amodu v. Commandant, Police College (2009) All FWLR Pt. 488 page 195 at 203;

Orji v. State (2008) 4 SCNJ 85; Ugo v. Obiekwe (1989) 1 NWLR Pt. 99 page 566; Kalu v. Ohuabunwa (2004) 7 NWLR Pt. 871 page 1.

Any issue formulated for determination in a Brief must be based on the Grounds of Appeal contained in the Notice of Appeal filed. Where the issues are not related to any Ground of Appeal, they are incompetent and irrelevant. It follows therefore that any argument in support of such issues will be discountenanced by the Court. See Ibator v. Barakuro (2007) 9 NWLR Pt. 1040 page 475; Nigeria Customs Service v. Eazuaye (2006) 3 NWLR Pt. 967 page 303; UTE (Nig) Ltd. v. Ajagbule (2006)2 NWLR Pt. 965 page 447; Admin. Gen., Delta State v. Ogogo (2006)2 NWLR Pt. 964 page 366; UPS Ltd. v. Ufot (2006) 2 NWLR Pt. 963 page 1; Amadi v. NNPC (2000) 6 SC (Pt.) page 66 at 72.

A cursory look at the Grounds of Appeal and the two issues shows that the first issue was distilled from Grounds 1 and 2 whilst the second issue was distilled from Grounds 3, 4, 5 and 6. Thus, the two issues are competent having been properly distilled from the Grounds of Appeal.

The Appellants are not guilty of proliferation or prolixity in the formulation of issues from the Grounds of Appeal. The two issues presented for determination relate proximately and appropriately to the six Grounds of Appeal from which they are distilled. The Preliminary Objection is therefore unmeritorious and is hereby dismissed.

Issue One

“Whether or not the 1st Respondent was qualified to contest the bye-election of the 5th and 6th April, 2008 to the office of Senator of the Federal Republic of Nigeria.”

On this first issue distilled for the determination of this Appeal, Counsel for the Appellants, S.I. Ameh SAN submitted that issue of non-qualification of the 1st Respondent is predicated on two fulcrums, namely:

(a) That as a Public Officer he did not validly resign his appointment thirty (30) days to the date of the election.

(b) That as at 5th and 6th of April, 2008 the 1st Respondent was not capable of being sponsored by the 2nd Respondent as its candidate having failed to resign his membership of the All Nigeria Peoples Party (ANPP).

He stated that the particulars/facts of the said non-compliance are premised on grounds of non-qualification as contained on page 67 of the Petition and that the Appellants in proof of this head of allegation called three witnesses to wit: PW3 Are. Okoronkwo Joseph, PW8 Alh. Umar Duhu and PW9 Senator Usman Jibrin Wowo. Learned Senior Counsel referred the Court to the evidence of PW3, PW8 and PW9, paragraph 12 of 1st Respondent’s Reply to the allegations of PW3, PW8 and PW9 and Paragraph 5 of the additional Witness Statement on Oath file on the 19th day of August, 2008 and contained at pages 2073 – 2079 of the Record.

Learned Senior Counsel maintained that the 1st Respondent in his evidence in Chief and under cross examination admitted and adopted paragraph 5 of his additional Statement of Oath. He referred the Court to pages 2390 – 2392 of the Record.

S.I. Ameh SAN also pointed out that in paragraph 5 of the said sworn statement, 1st Respondent copiously quoted the relevant provisions of the ANPP Constitution.

Learned Senior Counsel submitted that this requirement of the ANPP Constitution was cited and relied upon by the 1st Respondent in his defence to the allegation of non-resignation from the ANPP.

He referred the Court to paragraph 4 of the 1st Respondent’s additional Witness on Oath and submitted that in view of this position of the evidence, the Lower Tribunal was in error when it held thus “as earlier stated the said Constitution of the ANP P was not tendered in evidence hence we cannot interpret any provision other than what was canvassed before us. It is settled Law that a Judge must not rely on a document not tendered before him.”

Learned Senior Counsel maintained that it was the 1st Respondent himself that raised the issue of his resignation being in conformity with Article 31 Paragraph 31:2 of the ANPP Constitution and has, by so admitted the existence of the said Constitution.

He further submitted that when such an issue has been raised and canvassed before the lower tribunal, the Tribunal was therefore bound to make a pronouncement thereon and referred to the case of Abalaka v. Min. of Health (2006) 2 NWLR Pt. 963 Page 105 at 113.

Learned Senior Counsel submitted that in the instant case, the 1st Respondent ought to have addressed his letter of resignation to the National Chairman of the Party and not the Federal Capital Territory Chairman Alh. Salihu Bagudu, as that is the purport and essence of Article 31, 31 :2.

S.I. Ameh SAN maintained that the argument that the ANPP Constitution was not tendered was immaterial since the provision of Article 31 paragraph 31:2 of the ANPP Constitution was specifically quoted and relied upon by the 1st Respondent in his additional Witness Statement on Oath which he adopted at the trial as his evidence.

Learned Senior Counsel submitted that the core issue for determination was whether the letter of resignation Exhibit R6C was valid in law or not. He further submitted that there was no controversy about the existence of that provision in the ANPP Constitution and the need to tender ANPP Constitution did not therefore arise.

He maintained that the averments of the 1st Respondent contained in paragraph 12(a) of his Reply and his deposition in paragraphs 21, 22, 23 and 24 of his Sworn Witness Statement relates to steps he is required to take to change from the party under which he was elected to anther before the expiration of his tenure in accordance with Section 68(1)(g) of the 1999 Constitution.

S.I. Ameh SAN submitted that the said assertion by the 1st Respondent is irrelevant and misconceived to the circumstances of this Petition because the allegation is not that of cross-carpeting contemplated under Section 108(1)(g) of the 1999 Constitution but that of resignation from the Party which procedure is as provided in Article 31 of the ANPP Constitution.

Learned Counsel contended that the question therefore is whether the 1st Respondent as an Executive Member of the ANPP had properly directed his letter of resignation to the national Chairman of the Party and same was accepted?

He maintained that the answer can be conveniently gleaned from the deposition of the 1st Respondent at paragraph 23.

Learned Senior Counsel maintained that the 1st Respondent as RW7 under cross-examination further admitted that his letter of resignation was addressed to the FCT Chairman of ANPP and not the National Chairman of ANPP.

He further submitted that if this Honourable Court holds that the 1st Respondent’s resignation is ineffectual, the only inescapable conclusion is that as at 5th and 6th April, 2008 the 1st Respondent was still a member of the ANPP and could therefore not be sponsored by the PDP or any party other than the ANPP.

S.I. Ameh SAN referred the Court to Section 65(2)(a) of the 1999 and submitted that the provision contemplates by the use of the word “a” that a candidate must belong to only one political party at any given moment.

Learned Senior Counsel further submitted that where the words of legislation or of an instrument are plain, they should be given their plain meaning. He maintained that one cannot import to the provision of the Legislation something not in it and referred to the case of Adebiyi v. Babalola (1993) 1 NWLR Pt. 267 Page 1 at 11.

He maintained that the legal implication of the combined provision of Section 65(2)(b) of the 1999 Constitution and Section 38 of the Electoral Act 2006 is that a candidate shall not be a member of two political parties and cannot be sponsored by any party other than his own.

On the premises of the above submissions, Learned Senior Counsel urged the Court to hold that since the 1st Respondent was a member of ANPP as at the date of the Bye-Election being 5th and 6th April 2008, his candidature under the platform of the PDP was clearly in breach of both Section 65(2)(b) of the Constitution and Section 38 of the Electoral Act 2006 and consequently not qualified to contest the election of 5th and 6th April, 2008.

He maintained that the Lower Court was therefore in error when it failed to pronounce on the validity of the 1st Respondent’s resignation in the light of Article 31, 31:2 of the ANPP Constitution.

Learned Senior Counsel further submitted that if the 1st Respondent is so disqualified, the votes cast for him were void, the 1st Appellant would therefore be entitled to be declared and returned as the person or candidate that scored majority of the lawful votes cast at the election.

In response to this issue, Counsel for the 1st Respondent Adekola Mustapha submitted that the totality of the evidence adduced by PW3, PW8 and PW9 were so weak that no tribunal could have held otherwise that the allegation was not proved by the Appellants.

He maintained that in a Civil Case, which is what a Law suit challenging an election is, the Petitioner must prove the truth of the fact he alleges by preponderance of evidence and that where a party challenges the result of an election and in his claims, makes no allegation of crime or criminality, then the burden of proof which would be required of him would be of the same standard as that of a Plaintiff in an ordinary civil action. He referred the Court to the cases of: Ajadi v. Ajibola (2004) 16 NWLR Pt. 898 Page 91 at 55; Imam v. Sheriff (2005) 4 NWLR Pt. 914 Page 80 at 96.

Learned Counsel further submitted that the general burden of proof rests on the Petitioner where an allegation of fact is not admitted. He maintained that the duty of the Respondent is only to defend and nothing more and referred to the case of Aniforo v. Obillor (1977) 1 NWLR Pt. 530 Page 661 at 672.

Adekola Mustapha argued that the burden of proving that the 1st Respondent ought to resign from the ANPP from the ANPP in a particular form as contended by the Appellants and not as he claimed to have resigned rests squarely on the Appellants.

Learned Counsel pointed out that the Appellants contended strenuously that the 1st Respondent relied on Article 31, paragraph 31.2 of the ANPP Constitution to prove that he had resigned from the Party and even sought to impose their interpretation of that Constitutional provision on the Court. He referred the Court to Page 16 paragraph 4.19 of Appellants’ Brief.

Adekola Mustapha submitted that the Tribunal like any other Court is under an obligation to do justice to all parties before it.

He maintained that it will be an error of law and even of fact for the Appellants to want to impose its own interpretation of a document, in this case, the ANPP Constitution on the Court when such document was not produced before the Court. Learned Counsel referred to the case of Olagbemiro v. Ajagungbade in (1990) 3 NWLR Pt. 137 Page 63.

Learned Counsel submitted that since the Appellant failed to produce the document before the Court for its independent consideration, assessment and interpretation, the only option available to the Court in the circumstance, assuming there is a doubt as to who is correct between the two parties as to the right interpretation to be accorded that Section of the ANPP Constitution, is to resolve it in favour of the 1st Respondent.

He maintained that the finding of the Tribunal on the resignation of the 1st Respondent from ANPP as captured at pages 2715 to 2722 cannot be faulted. Adekola Mustapha argued that assuming the 1st Respondent did not follow the process of resignation stated by the ANPP Constitution; will it be proper and justifiable to raise this issue now?

Learned Counsel pointed out that the 1st Respondent contested the primary election for his party (PDP) nomination in 2006 and was subsequently fielded as candidate for the Senatorial election against the 1st Appellant in the April 14th, 2007 election which he won, the Appellants did not complain; when the election was nullified by this Court and your Lordships ordered a fresh election, the Appellants did not complain; only for them to wait until the 1st Respondent won the election.

He submitted, with due respect that this kind of attitude should be condemned very strongly and that your Lordships should not encourage it in the interest of our democracy.

Learned Counsel further submitted that Appellants’ submission in their brief, particularly in paragraph 4.1.16, that the Tribunal did not make a pronouncement on the issue of the 1st Respondent’s resignation from ANPP not being in conformity with ANPP Constitution is not true and he referred the Court to pages 2710.2721 of the Record.

Adekola Mustapha maintained that at the trial Tribunal, apart from the evidence of the 1st Respondent on how he resigned his membership of ANPP, there was no evidence put forward by the Appellants to the contrary that the mode was improper or contrary to the ANPP Constitution. He referred the Court to the extract of the Witness Statement on Oath filed by the Petitioners for PW3, PW8 and PW9 at pages 10 – 12 of the Appellants’ Brief, pages 112 – 113, 176-177 and 180 of the Record and also the case of LACED v. Edun (2004) 6 NWLR Pt. 870 page 476.

He further submitted that the Appellants did not join issues with the 1st Respondent in their pleadings on the mode of resignation and therefore even if the Tribunal did not consider it, the Tribunal would still be in order.

Learned Counsel for the 1st Respondent argued that for the Petitioners to be able to sustain that allegation of fact that the 1st Respondent did not follow due process, they ought to file a further/additional Witness Statement on Oath to enable them bring the issue of fact before the Court for consideration.

He submitted that the game of Litigation is not like a game of wrestling where wrestlers are free to adopt any style to defeat his opponent and that even in wrestling game, there are rules.

Learned Counsel maintained that their response to Appellants’ submission paragraph 4.19 at pages 16 – 17 that “the core issue for determination was whether the letter of resignation Exhibit R6C was valid in Law or not”, is whether this was part of their pleading. He urged the Court not to allow the Appellants ambush the Respondents at this stage.

Adekola Mustapha further submitted that the mode of resignation from ANPP is more of an issue of fact than Law. He maintained that the Appellants did not join issue with the 1st Respondent on this and neither was any evidence led before the Tribunal to controvert the evidence of the 1st Respondent on the mode of resignation.

He argued that it is settled Law that no matter how beautiful an address of Counsel, it cannot take the place of evidence and referred the Court to the following cases:

Agbamu v. Ofili (2004) 5 NWLR Pt. 867 Page 571; Daramola v. A.G. Ondo State (2000) 7 NWLR Pt. 655 Page 440; Neka BBB Manufacturing Co. Ltd. v. ACB Ltd. (2004) 2 NWLR Pt. 858 Page.

Learned Counsel urged your Lordships not to disturb the finding of fact arrived at the Lower Tribunal as well as the evaluation of evidence made that the Appellants have not convincingly established through credible evidence that the 1st Respondent did not resign his membership of ANPP. He referred to: Magaji v. Odan” (1978) 4 SC 91; Musa v. Yerima (1997) 7 NWLR Pt. 511 Page 27; Lagga v. Sarhuna (2008) 16 NWLR Pt. 1114 Pg. 455.

He further submitted that the evaluation of evidence and finding of facts are within the exclusive preserve of the trial Court and your Lordships will not interfere unless such finding or evaluations are perverse.

Learned Counsel maintained that the Appellants have not shown by any stretch of imagination that the evidence of PW3, PW8 and PW9 were not considered by the Tribunal. He urged your Lordships to resolve this issue in favour of the 1st Respondent and hold that the 1st Respondent resigned his membership from ANPP and therefore qualified to contest the election.

In his response on this issue, Counsel for the 2nd Respondent Chief (Hon.) Olusola Oke submitted that the Petition leading to the present subject matter of this appeal is at pages 1-104 especially 61-104 of the Record of Appeal. He maintained that of particular relevance to this issue are the averments at pages 65- 67, Grounds 1.1 and particulars C 1 ,2,3, 4a and 4b of the Petition.

He further submitted that the twin grounds upon which the 1st Respondent’s qualification was questioned in the Petition are:-

(i) that as a public officer, the 1st Respondent did not validly resign his appointment thirty (30) days to the date of the election;

(ii) that as at 5th and 6th of April 2008, the 1st Respondent was not capable of being sponsored by the 2nd Respondent as its candidate, having failed to resign his member of the All Nigeria Peoples Party (ANPP).

Learned Counsel stated that the particulars in support of the allegation of non-qualification are contained on page 67 of the Petition and Page 66 of the Record of Appeal. He submitted that all the Respondents deny the allegation of non-qualification and put the Appellants to the strictest proof thereof. Chief (Hon.) Olusola Oke referred the Court to the 1st Respondent’s reply to the Petition at Pages 267-281 of the Record especially pages 268-270 paragraphs 9-12(a),(b),(c) and (d) of the Petition; the 2nd Respondent’s reply to the Petition at pages 345-355 especially pages 345-346, paragraphs 06, 07, 08(i), (ii), (ii) and (iv) of the said reply of the 2nd Respondent.

Learned Counsel maintained that at the trial, the Appellants called three witnesses, PW3, PW8 and PW9 in an attempt to substantiate the allegation that the 1st Respondent did not at the time of the election resign his membership of the ANPP; However he pointed out that no witness was called to establish against the 1st and 2nd Respondents during the trial the allegation that as a public Officer, the 1st Respondent did not validly resign his appointment 30 days to the date of the election.

Chief (Hon.) Olusola Oke submitted that it is clear from the printed Record that the Appellants at the Tribunal proffered no evidence in support of the allegation that the 1st Respondent being a public Officer did not resign his appointment as the Secretary of the Agricultural Secretariat 30 days before the election as required by the Constitution and that the Appellants did not also canvass any argument in their written address in support of this allegation.

Learned Counsel maintained that it is a settled Law that pleadings in themselves do not constitute evidence; that mere averments without evidence in proof of the facts pleaded is no proof the facts averred therein when they have not been admitted. He referred to the cases of: Kalio v. Woluchero (1985) 1 NWLR Pt. 4 Page 610; Adegbite v. Ogunjaolu (1990) 7 Sc. Pt. 1 Page 100;

Help Nig. Ltd. v. Silver Anchor Nig. Ltd. (2006) SC Pt. 1 Page 39 at 47; Boniface-Anyika & Co. Nig. Ltd. v. Uzor (2006) 15 NWLR Pt. 1003 Page 560 at 571-572; Agbaileh v. Nnaroani (2005) FWLR Pt. 245 page 1052.

Learned Counsel argued that the burden of proof of the averments relating to the allegation of non-resignation from “public” Service before 30 days to the election, rest upon the Appellants since they are the ones who would fail if the allegation is not proved. He referred the Court to:-

Ndukwe v. Aka (1998) 6 NWLRL Pt. 552 page 25; and Section 135 of the Evidence Act.

Chief (Hon.) Olusola Oke submitted that it is safe therefore to conclude that the 1st leg of the allegation of non-qualification of the 1st Respondent to be nominated for the election of 5th and 6th April, 2008 is deemed abandoned and that it is like the issue was never before the Tribunal.

Learned Counsel contended that the second leg of the allegation of non qualification is predicated upon an alleged failure of the 1st Respondent to resign as a member of the ANPP before being sponsored by the 2nd Respondent to run for the FCT Senatorial seat.

He pointed out that this was the allegation the Appellants called PW3, PW8 and PW9 to prove. He referred the Court to the evidence of PW3 at pages 1290 – 1294 of the Record, PW8 at pages 1295-1299 and PW9 at pages 1300-1302 of the Record.

Learned Counsel submitted that the above witnesses merely repeated allegation of non-resignation in the Witness Statement on Oath without adducing evidence to support their allegations.

He maintained that PW8, Chairman of ANPP in the FCT failed to tell the Court or to tender any document showing that during the period under consideration, the 1st Respondent attended any meeting or made financial contribution to the party or caused his name to be placed in the current register of the party.

Learned Counsel pointed out that notwithstanding the failure to discharge the burden placed on the Appellants on this allegation, the 1st Respondent who testified as RW6 not only denied the allegation but proffered evidence that he resigned from ANPP vide a letter to that effect which was acknowledged and accepted by Mr. Saliu Bagudu ANPP Chairman in the FCT.

He maintained that the said letter was tendered and admitted in evidence as Exhibits R6C and R6D respectively, without any challenge from the Petitioners as to their genuineness.

Chief (Hon.) Olusola Oke also pointed out that prior to the re-run election, the 2nd Respondent had sponsored the 1st Respondent as its candidate in January 2007 for the April 2007 election without a protest from the Appellants.

He submitted that the Appellants are guilty of acquiescence and standing by and are therefore stopped from challenging the membership of the 2nd Respondent of the Peoples Democratic Party.

Learned Counsel further submitted that if Exhibits R6C and RAD put paid to any argument as to whether the 1st Respondent resigned his member ship of ANPP or his appointment as Secretary Ministry of Agriculture, FCT; this Honourable Court will also have to determine in the light of decision in Theodore Orji & Ors. v. Chief Onyema Ugochukwu & Ors. (Unreported) whether the Secretary of Agriculture in the Federal Capital Territory Ministry of Agriculture is a public Officer within the meaning of the Constitution.

Chief (Hon.) Olusola Oke argued that from the argument canvassed by the Appellants at pages 12, 13, 14, 15 and 16 of their Brief, the Appellants seem to have altered the character of their case by contending that the 1st Respondent’s resignation vide Exhibit R6C is ineffectual in that it did not comply with the procedure for resignation prescribed in the Constitution of the ANPP.

He submitted that this contention is totally misconceived and is tantamount to making a fresh and different case on behalf of the Petitioners contrary to the case made out on the pleadings. Learned Counsel maintained that the Law is settled that parties as well as the Court are bound by pleadings and that a party is not entitled to argue in his address a case inconsistent with his pleadings. He referred to the case of Agide v. Kelani (1985) 3 NWLLR Pt. 12 Page 248 at 269. Chief (Hon.) Olusola Oke contended that the close of pleadings the issue joined between the parties is whether or not the 1st Respondent resigned his membership of ANPP; that the Plaintiff in paragraphs B1(l1), 1(iv), C1, 2, 3,, P4, 4(a) and 4(b) averred that the 1st Respondent did not whilst the 1st and 2nd Respondents vehemently denied this in their reply and that the 1st Respondent apart from denying, pleaded and tendered letters of resignation as Exhibits and gave evidence in support of the pleading.

He maintained that parties did not join issue in pleadings on the made and procedure of resigning membership of the ANPP or on the provision of the Constitution of the ANPP.

Learned Counsel submitted that the essence of pleadings is to compel the parties to define accurately and precisely the issues upon which the case is to be contested to avoid event of surprise by either party and not to adduce evidence which goes outside the facts pleaded. He referred the Court to the cases of:-

Ugbodume & ors. v. Aigbegbe & ors. (1991) 8 NWLR Pt. 209 Page 261; Popoola Bamigbegbin & ors. v. Jimoh Oriade & ors (2001)5 NWLR Pt. 707.

Chief (Hon.) Olusola Oke further submitted that the statement said to be contained in additional Witness Statement on Oath filed by the 1st Respondent on 19th August 2008 set out at page 2073-2079 of the Record and specifically laid out at pages 14-16, paragraphs 4.1.5 and 4.1.6 of the Appellants’ Brief constitute at best evidence led on facts not pleaded and therefore goes to no issue. He maintained that neither the Appellants nor the 1st Respondent pleaded the provisions of ANPP Constitution and/or the procedure for resigning membership of ANPP.

Learned Counsel maintained that at the close of pleadings there was nothing in either the Petition or the various replies to put any of the Respondents on notice that the efficacy or effectuality of the resignation or compliance or non-compliance with the mode of resignation prescribed in ANPP Constitution will be in contention at the trial and therefore evidence led by either of the parties on the issue or evidence extracted from any witness under cross examination on the issue becomes irrelevant and goes to no issue as evidence led on facts not pleaded. He referred to Ugbodume & Ors. v. Aigbegbe (supra).

He submitted that in raising this issue in paragraph 1.1.7 of the Appellants’ Brief, the Appellant violated two principles of Law:- (1) that no party is allowed to take the other by surprise by raising issues which the party did not put in contest in pleadings and (2) that Counsel’s address, however well crafted and ingenious cannot take the place of pleading or evidence, learned Counsel referred the Court to the cases of:-

Odubeko v. Fowler (1993) NWLR Pt. 308 Page 637; Oduola v. Coker (1981) 5 SC.

Chief Olusola Oke further submitted that another fundamental set-back to the contention of the Appellants on this issue is that the Constitution of ANPP said to contain the procedure for resigning from ANPP was neither pleaded nor tendered before the Tribunal. He maintained that it is a cardinal legal principle, statutory and judicial that oral evidence cannot be given of the content of a document without the document itself being produced and tendered before the Court. He referred the Court to Section 132 of the Evidence Act.

Learned Counsel also maintained that it is wrong in Law that a party will be allowed to give oral evidence of a document which is not pleaded and also not before the Court. He referred to Chief Albert Onye & ors. v. Emanuel Kema & ors. (1999) 4 NWLR Pt. 594 Page 204.

He further submitted that it is settled law that a Judge must not rely on a document not tendered before it and referred the Court to the cases of:-

Olagbemiro v. Ajagungbade (1990) 3 NWLR Pt. 137 Page 63; Gbajor v. Ogunburegu (1961) 1 NWLR Pt. 853.

Chief Olusola Oke contended that it is erroneous and legally not available for the Petitioners to invite this Honourable Court to apply and implement the content of a document not tendered before the Court.

Learned Counsel however argued that a careful consideration of the alleged provision of the ANPP Constitution set out at page 14, paragraph 4.1.6 shows that the provision relates to and covers “elected party officer/official who wishes to resign from his office” and does not cover the 1st Respondent who was never an elected party officer.

He maintained that the averments contained in paragraph 12(a),(b),(c) and (d) of the 1st Respondent’s reply were not denied by the Petitioners and they should be deemed admitted by reason of the failure of the Petitioners to file a reply to the said averments.

Learned Counsel stated that it is the evidence of the 1st Respondent that by reason of being a member of the House of Representatives, he was a member of the Federal Capital Territory Executive Committee of the Party and that there is no pleading upon which this piece of evidence can be based.

He submitted that being a member of the Federal Capital Territory Executive Committee of the Party does not without more make the 1st Respondent “elected party officer/official for the purpose of resignation under Article 31, paragraph 31.2 of the imaginary ANPP Constitution.”

Chief Olusola Oke maintained that assuming but not conceding that this piece of evidence relates to a pleaded fact, it was not contradicted by the Petitioner.

He submitted that it was erroneous for the Petitioner to seek to contradict the said piece of evidence during address by seeking to apply the provision of Article 31 paragraph 31.2 of the ANPP Constitution which does not apply to the 1st Respondent.

Learned Counsel further submitted that besides that above submissions, it is also now settled that only disqualification set out in Section 65 of the Constitution will rob a candidate of his right to participate and be returned at election. He referred the Court to the case of ANPP v. Usman (2008) 12 NWLR Pt. 1000 Page 1 at 54 and maintained that the above decision applies mutantis mutandis to the present case by virtue of Section 65 of the Constitution to a person wishing to contest for a seat in the Senate.

Learned Counsel argued that the allegation that the 1st Respondent did not resign is a pre-election matter which ought to have been raised under Sections 32 and 33 of the Electoral Act 2006 before the Election.

He maintained that Election Tribunal has no power to investigate matters which took place before the conduct of election. Learned Counsel submitted that the grounds recognized for the purpose of presenting an election petition are acts or omissions that were contemporaneous with the conduct of an election. He referred to the case of Ibrahim v. INEC (1999) 8 NWLR Pt. 614 Page 334.

He further submitted that the 2nd Respondent in this case who should know who its members are has admitted that 1st Respondent is its member, that it sponsored him as candidate for the election and that it does not lie in the mouth of the Petitioners to dispute fact as it is not pleaded and is not in Evidence before the trial Tribunal that the 1st Respondent was not sponsored for the Senate election by both ANPP and PDP; therefore Section 38 of the Electoral Act is not applicable. Learned Counsel referred to the case of ANPP v. Usman (supra) at Page 55 paragraph E-F where the Court of Appeal concluded that “it is the prerogative of a Political Party to say who its members are and who it is sponsoring for an election.”

He urged this Honourable Court to resolve issue I in favour of the Respondents.

In her response on this issue, Mrs. A.E. Taju Counsel for the 3rd -662nd Respondents also referred to paragraph 4.1.2 of page 9 of the Appellants’ Brief where it is stated that the issue of non-qualification of the 1st Respondent is predicated on two fulcrums.

Learned Counsel argued that the Appellants allege that the 1st Respondent not only failed to resign his appointment thirty days to the election, but that in the months of February and March 2008 he performed and was engaged in official duties on behalf of the Federal Capital Territory administration as Secretary of the Agriculture Secretariat.

She submitted that the first rule of evidence is that he who asserts must prove and referred to Section 135 of the Evidence Act.

Learned Counsel maintained that at the trial, no evidence was adduced to prove the above allegations and that the Petitioners had in their list of documents pleaded the 1st Respondent’s secret/personal file with the FCT administration, 1st Respondent’s Bank Statement of Account and the FCT Administration Agriculture Secretariat correspondence and video Cassettes; but failed to tender in evidence the documents pleaded.

Mrs. A.E. Taju argued that it was the 1st Respondent who tendered Exhibit D which is a letter dated 21st February, 2008 signed by the Chief of Staff to the Hon. Minister of FCT acknowledging receipt of his letter of resignation, conveying the approval of the Honourable Minister and wishing him the best in his future endeavours. She referred the Court to pages 2717-2718 of the Record and the case of Abalaka v. Minister of Health (2006) 2 NWLR Pt. 963 Page 105 at 113.

Learned Counsel urged your Lordships, in the light of the foregoing, to resolve the first leg of issue I in favour of the Respondents.

On the second leg of the allegation of non-qualification, Learned Counsel stated that the Appellants relied on the evidence adduced by PW3, PW8 and PW9 to effect that the 1st Respondent was still a member of the ANPP when he contested under the platform of the PDP in the general election and by-election of 21st April, 2007 and 5th and 6th April, 2008 respectively.

She maintained that from the pleadings and the evidence adduced at the trial, the parties did not join issues on the steps to be followed before the 1st Respondent could be said to have validly resigned from ANPP in May, 2005 and neither did the parties join issues on the Constitution of the ANPP in the above regard.

Learned Counsel referred the Court to the cases of:-

Ajide v. Kelani (1985) 3 NWLR Pt. 12 page 248 at 251; Olaniyi v. Elero (2007) 8 NWLR Pt.1037 page 517 at 532.

Learned Counsel submitted that the Appellants’ contention in paragraph 4.1.9 of their Brief that “the mode of resignation of the 1st Respondent is contrary to the express provision of Article 31 and particularly paragraph 31.2 of the ANPP Constitution and thereby make the purported resignation ineffectual and void” is raising a fresh issue for which they did not seek leave of your Lordships and should be discountenanced. She referred to the case of Olaniyi v. Elero (supra) at page 531 paras. E-F.

Mrs. A.E. Taju further submitted that the allegation before the Tribunal was that “as at 5th and 6th day of April, 2008 the 1st Respondent was not capable of being sponsored by the 2nd Respondent as its candidate having failed to resign his membership of the All Nigeria Peoples Party ANPP.”

She therefore urged your Lordships to discountenance the arguments and cases cited in paragraphs 4.1.9 – 4.1.17 as a mere academic exercise which does not go to the merits of the case.

Learned Counsel submitted that the Appellants failed to prove on the balance of probabilities that the 1st Respondent had not resigned at his level of the Party in the FCT.

She maintained that the case of Abalaka v. Minister of Health (supra) cited by the Appellants is not relevant to this case because the Appellants brought the action against the 1st Respondent without adducing any documentary evidence; whilst the 1st Respondent defended himself and established that he resigned from the ANPP by virtue of which the constitutional provision cited by the Appellants do not apply to him. Learned Counsel referred to the reasoning of the Tribunal on pages 76-82 of the Judgment (pages 2716-2722 of the Record).

Mrs. A.E. Taju further submitted that the hay days of technicalities are over and the Courts are now concerned with doing substantial justice. She maintained that the Appellants’ arguments border on undue technicalities “which cannot be easily understood and appreciated by the common man in the street and the litigants” and referred the Court to Associated Discount House v. Associated Trustees Ltd. (2006) 10 NWLR Pt. 989 Page 635 at 641, 647 paras. F-H.

Learned Counsel urged your Lordships to resolve issue I in favour of the Respondents.

In reply to the submission of the 2nd Respondent on this issue, Learned Senior Counsel pointed out that the 2nd Respondent at Pages 12-26 of its Brief made a heavy weather of what it termed the Appellants’ failure to lead evidence to show that the 1st Respondent was still a member of the ANPP as at 5th and 6th April, 2008 when the bye-election took place in the FCT and failure to tender the Constitution of the ANPP.

He submitted that given the state of pleadings, there was no dispute about the existence of the ANPP’ Constitution and there was also no dispute that the 1st Respondent was at the material time a Member of the House of Representative under the aegis of the ANPP and this made him an “elected party officer/official.”

Learned Senior Counsel maintained that the weakness in the evidence of the 1st Respondent is that whereas Article 31, paragraph 31.3 of the said Constitution required that he submitted a letter of resignation to the National Chairman of the ANPP who shall in turn present the letter to the National Working Committee for acceptance or otherwise not later than one month from the date of receipt of the letter; the 1st Respondent’s letter of resignation Exhibit R6C was submitted to the Chairman of the ANPP in the Federal Capital Territory, Mr. Saliu Bagudu.

He pointed out that aside submitting his purported letter of resignation to the wrong official; there was nothing to show that the 1st Respondent’s letter was ever considered or the content thereof accepted by ANPP’s National Working Committee.

Learned Senior Counsel submitted that in the evidence of the 1st Respondent, the 1st Respondent clearly admitted non-compliance with the procedure for resignation from the ANPP which he gave evidence of and that this is an admission against interest and its effect is grave. He referred the Court to the case of Onisaodu v. Elewuju (2006) 13 NWLR Pt. 998 Page 517 at Pages 529-530.

S.I. Ameh SAN further submitted that in the circumstances of this case particularly in view of the evidence led by PW3, PW8 and PW9 to the effect that the 1st Respondent was still a member of the ANPP at the material time and the clear admission against interest by the 1st Respondent that he did not comply with the resignation procedure the Appellants needed not tender the ANPP Constitution or say anything further.

He maintained that they could, as they have done in the Appellants’ Brief, rely on the weaknesses in the 1st Respondent’s defence as same supported their case and that this is allowed by Law. Learned Senior Counsel referred the Court to the cases of:

C.D.C. (Nig.) Ltd. v. SCOA (Nig.) Ltd. (2007) 6 NWLR Pt. 1030 Page 300 at 327;

Oyinloye v. Esinkin (1999) 10 NWLR Pt. 624 Page 540 at 549

In his reply to 3rd – 662nd Respondents’ submissions on this issue, Counsel for the Appellants submitted that the issue of whether the 1st Respondent is qualified to contest the election of 5th and 6th April, 2008 is not time barred, so the argument that it should have been raised at the earliest opportunity does not arise and that if the 1st Respondent is not qualified to contest the election, he is disqualified for all purpose.

He maintained that Section 32(3) and (4) of the Electoral Act does not provide an escape route for the 1st Respondent since it cannot be read in isolation of Section 145(1)(a) of the Electoral Act and Sections 65(2) and 285(2) of the 1999 Constitution.

Learned Senior Counsel referred the Court to the case of Bayo v. Njidda (2004) FWLR Pt. 192 page 10 at 72 per Ogbuagu J. C. A.

S.I. Ameh SAN argued that by Section 134(1) of the Electoral Act, such Constitutional requirement form a ground for an Election Petition and therefore does not require a Petition/Complaint to INEC or seeking a remedy in the High Court or Federal High as the case may be before it could validly be raised in an Election Petition. He referred the Court to the cases of: Chief Falae v. Ge. Obasanjo & 59 ors. (No.2) (1999) 4 NWLR Pt. 599 page 476 at 515; Tsoho & anor v. Ibrahim M. Yahaya (1999) 4 NWLR Pt. 600 page 657 at 662, 671,673; Peters v. David & 3 ors (1999) 5 NWLR Pt. 603 page 486 at 495.496.

Learned Senior Counsel urged the Court to discountenance the submission of 3rd- 662nd Respondents on Section 32 of the Electoral Act as the disqualification of the 1st Respondent as canvassed by the Appellant is anchored on Sections 65 and 66 of the 1999 Constitution read along Section 145(1) of the Electoral Act.

S.I. Ameh SAN filed on the 2nd day of October, 2009, a list of additional authorities dated 30th September, 2009. Therein, Learned Senior Counsel refereed the Court to the cases of:

Akpabio v. State (1994) 7 NWLR Pt. 359 page 635 at 664-665; Nwambe v. State (1995) 3 NWLR Pt. 384 page 385 at 408.

He urged the Court to resolve this Issue in favour of the Appellants.

Section 65(1)(a) and (2)(a),(b) of the Constitution of the Federal Republic of Nigeria 1999 stipulates the Qualifications for election for Membership of the Senate as follows:-

“65 (1) Subject to the provisions of Section 66 of this Constitution, a person shall be qualified for election as a member of

(a) The Senator, if he is a citizen of Nigeria and has attained the age of thirty-five years;

(2) A person shall be qualified for election under subsection(1) of this section if-

(a) he has been educated up to at least school certificate level or its equivalent,. and

(b) he is a member of a political party and is sponsored by that party. ”

It is therefore clear from the provisions of Section 65(1)(a) & (2)(a),(b) of the Constitution that a person shall be qualified for election to the National Assembly for membership of the Senate if he is a citizen of Nigeria who has attained the age of thirty-five years and has been educated up to at least school certificate level or its equivalent, and is a member of a political party and is sponsored by that party to contest the election to the Senate of the National Assembly. See:-

Ukpo v. Adede (2002) 3 NWLR Pt. 755 page 671; Goodhead v. Amachree (2004) 1 NWLR Pt. 854 page 352; Baro v. Nijidda (2004) 8 NWLR Pt. 876 page 544; Gidado v. Inogan (2004) 10 NWLR Pt. 881 page 374.

It has been contended on behalf of the Appellants that the issue of non qualification of the 1st Respondent is predicated on two fulcrums namely:

(a) That as a Public officer he did not validly resign his appointment thirty (30) days to the date of the election.

(b) That as at 5th and 6th of April, 2008 the 1st Respondent was not capable of being sponsored by the 2nd Respondent as its candidate having failed to resign his membership of the All Nigeria Peoples Party (ANPP).

On the first leg of allegation contained in the first issue for determination,the Constitution of the Federal Republic of Nigeria 1999 provides under Section 66(1) that no person shall be qualified for election to the Senate or the House of Representatives if he is a person employed in the Public Service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election. See:

Dada v. Adeyeye (2005) 6 NWLR Pt. 920 page 1; Adefemi v. Abegunde (2004) 15 NWLR Pt. 895 page 1.

In Abalaka v. Ministry of Health (2006) 2 NWLR Pt. 963 page 105 at 113-136 it was held:-

“Where no evidence is led on an issue, such issue, however brilliantly argued, goes to no issue as it is deemed abandoned and a Court has no business to pronounce upon it, it is akin to pleadings.”

At the trial the Petitioners/Appellants had in their list of documents pleaded:-

“(0) 1st Respondent’s secret/personal files with the Federal Capital Territory Administration.

(p) 1st Respondent’s Bank Statement of Account.

(q) Federal Capital Territory Administration Agriculture Secretariat correspondence and video cassettes. See page 259 of the Record of Appeal.”

The Appellants, however, failed to tender in evidence the documents pleaded. It was the 1st Respondent who tendered Exhibit R6D which is a letter dated 21st February, 2008 signed by the Chief of Staff to the Honourable Minister F.C.T. acknowledging receipt of his letter of resignation, conveying the approval of the Hon. Minister. See pages 2717 – 2718 of the Record of Appeal. On page 77 of the Judgment at page 2717 of the Record of Appeal, the trial Tribunal held as follows:-

“In the same vein the Petitioners allegations that the Respondent did not resign his appointment were not supported by any form of documentary evidence. Instead it was the 1st Respondent who tendered Exhibit R6C and R6D…..”

No argument was canvassed in the Brief therefore this leg is considered abandoned. The Law is that where no issue is formulated on a Ground of Appeal, that Ground is deemed abandoned. See Are v. Ipaye (1986) 3 NWLR Pt. 29 page 416; Akinsanva v. Longman (I996) 3 NWLR Pt. 436 page 303.

No witness was called to establish against the 1st and 2nd Respondents during the trial the allegation that as a public officer, 1st Respondent did not validly resign his appointment 30 days to the date of the election. It is clear from the printed record that the Appellants at the trial Court proffered no evidence in support of the allegation.

Pleadings in themselves do not constitute evidence. Mere averments without evidence in proof of facts pleaded goes to no issue and such averment is deemed to be abandoned and would be struck out by the Court unless it is admitted by the adverse party. Even where a particular averment is admitted, a Plaintiff may nevertheless be required to adduce some evidence in proof of such admitted fact.

See: Buhari v. Obasanjo (2005) 2 NWLR Pt. 910 page 241; N. A. S. Ltd. v. UBA Plc (2005) All FWLR Pt. 284 page 275; Olorunfemi v. Asho (2000) 1 SC 15; Alamieyeseigha v. Igoniwari (No.2) (2007) 7 NWLR Pt. 1034 page 524; Ehidimhen v. Musa (2000) 4 SC (Pt. II) 166; Eze v. Atasie (2000) 6 SC (Pt.1) 214.

Section 135 of the Evidence Act provides thus:

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

See Agbaileh v. Nnamani (2005) AFWLR Pt. 245 page 1052.

In Help Nig. Ltd. v. Silver Anchor Nig. Ltd. (2006) 2 SC Pt. 1 page 39 at 47, it was held that:-

“If a party to an action fails to or does not lead evidence in support of the averments in his pleadings, the averments will be taken as having been abandoned.”

Also in Boniface-Anyika & Co. Nig. Ltd. v. Uzor (2006) 15 NWLR Pt.1003 page 560 at 571-572, Niki Tobi JSC said:

“In a case where Defendant joins issue with the Plaintiff in his statement of defence, the content and strength of the pleadings by way of statement of claim must be tested by Court in the light of oral evidence. This is because the statement of claim being Court process does not have the mouth to talk in Court. This is where oral evidence of the witness becomes important and plays a vital role in the truth searching process of the Court, It is the duty of the witness to goad the docile statement of claim by ventilating in open Court, the averments contained therein. In the absence of such evidence, the statement of claim is moribund and remains useless in the Court’s file in a contested case.”

Therefore, since the Appellants did not canvass any argument in this first leg of the allegation of non-qualification of the 1st Respondent to be nominated as candidate for the Election of 5th and 6th April, 2008, it is deemed abandoned.

This first leg of issue one is resolved in favour of the Respondents. The second leg of the allegation contained in the first issue for determination is to the effect that as at 5th and 6th of April, 2008 the 1st Respondent was not capable of being sponsored by the 2nd Respondent as its candidate having failed to resign his membership of the All Nigeria Peoples Party (ANPP).

The Appellants called PW3, PW8 and PW9 to prove the allegation. The evidence of PW3 is at page 1290 – 1294, PW8 at pages 1295 – 1299 and PW9 at pages 1300 – 1302 of the Record of Appeal.

The 1st Respondent who testified as RW6 denied the allegation and tendered a letter Exhibits R6C and R6D to that effect. The resignation according to him was acknowledged and accepted by Mr. Saliu Bagudu All Nigeria Peoples Party’s (ANPP) chairmen, Federal Capital Territory. It is clear from the record of Appeal that genuineness of these documents was not contested at the trial by the Appellants.

The Appellants from the testimony of their witnesses and in particular from the testimony of PW8 the Chairman of the All Nigeria Peoples Party (ANPP) in the Federal Capital Territory did not disclose to the Court either oral or documentary that the 1st Respondent during the period under consideration was engaged in any act which tends to indicate that he was still a member of their Party the All Nigeria Peoples Party (ANPP), such as evidence that he attended any meeting or made financial contribution to the party or showed that the name of the 1st Respondent was on the current register of the Party in the Federal Capital Territory.

It is in evidence that prior to the re-run election of 5th and 6th April, 2008 the 2nd Respondent had sponsored the 1st Respondent as its candidate in January 2007 for the 21st April, 2007 election without a protest from the Appellants.

I am of the opinion that the Appellants by their conduct are guilty of acquiescence and lack both moral and legal basis to challenge the 1st Respondent’s membership of the Peoples Democratic Party. The All Nigeria Peoples Party are stopped now after he had won a re-run election on the platform of the PDP from saying that he was still a member of their party when he contested that election.

Another fact relevant to the issue under consideration is that parties did not join issue in their pleadings on the mode and procedure of resigning membership of the All Nigeria Peoples Party (ANPP) or on the provision of its Constitution.

In Ajide v. Kelani (1985) 3 NWLR Pt. 12 page 248 at 251 it was held that:-

“an issue or question is irrelevant if it does not arise from the pleadings.”

An issue is said to be joined when one party asserts the existence or nonexistence of a fact and the other party asserts the contrary by denying the existence or non-existence of that fact.

In Olaniyu v. Elera (2007) 8 NWLR Pt. 1037 page 517 at 532 – 533, it was held on the bindingness of Pleadings thus:-

“Parties are bound by their pleadings. Both the Plaintiff and Defendant are bound by their pleadings. Where the Plaintiff fails to plead relevant facts that would present an opportunity for the Defendant to join issues with him, it is his own failing and it is fatal to his case.” The Appellant’s contention in paragraph 4.1.9 of their Brief of Argument that “the mode of resignation of the 1st Respondent is contrary to the express provision of Article 31and particularly paragraph 31.2 of the All Nigeria Peoples Party (ANPP) Constitution and thereby make the purported resignation ineffectual and void” did not form part of the issues joined by the parties in their pleadings filed at the trial Tribunal and no evidence was led to that effect.

These issues now raised by learned Senior Counsel to the Appellants in his Brief are fresh issues of fact for which leave ought to have been sought and obtained before raising them before this Court.

It is trite that an address of Counsel no matter how beautiful, cannot take the place of evidence. See: Agbamu v. Ami (2004) 5 NWLR Pt. 867 page 571; Neka BBB Manufacturing Co. Ltd. v. ACB Ltd. (2004) 2 NWLR Pt. 858 page 521; Daramola v. A.G. Ondo State (2000) 7 NWLR Pt. 655 page 440.

It is trite that an Appellant will not be allowed to raise on appeal a question which was not raised, tried and considered in the Court below unless the question involves substantial points of law, whether substantive or procedural, and it is clear that no further evidence can be adduced which will affect the decision on them. See: Olaniyi v. Elero (2007) 8 NWLR Pt. 1037 page 517 at 531; Owu v. Ighiwi (2005) 5 NWLR Pt. 917 page 184; Agedah v. Nkwocha (2002) 9 NWLR Pt. 771 page 113; Koya v. UBA Ltd. (1997) 1 NWLR Pt. 481 page 251; Yusufv. UBN Ltd. (1996) 6 NWLR Pt. 457 page 632; Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 449 page 420; Onwugbufor v. Okoye (1996) 1 NWLR Pt. 424 page 252.

A party seeking to file and argue any fresh issue in the appellate Court must first seek and obtain leave of Court before doing so. However where the issue has to do with jurisdiction of the Court it can be raised at any time and even on appeal for the first time. See: Akintaro v. Egungbohun (2007) 9 NWLR Pt. 1038 page 103; Etugbe v. Omokhafe (2004) 18 NWLR Pt. 905 page 319; Nigeria Customs Service v. Bazuaye (2006) 3 NWLR Pt. 967 page 303.

The trial Tribunal made the following finding of fact on the issue as to whether the 1st Respondent did not resign his membership of the ANPP before contesting the Senatorial Election of the FCT under the platform of the PDP at pages 2710 – 2721 of the Record of Appeal thus:-

“In the instant case, can it be asserted that the Petitioners have proved on the preponderance of evidence and/or balance of probabilities that the 1st Respondent is not qualified to contest the election in question because he has not resigned his appointment with the FCT administration and withdrawn his membership of the ANPP? From the totality of the evidence adduced, the Petitioners have not convincingly established through credible evidence the allegation that the 1st Respondent did not resign his membership of ANPP nor resign his appointment as Secretary Agriculture of the FCT Administration before contesting the election in question on the platform of the PDP.”

Earlier at page 2717 of the Record of Appeal the trial Tribunal said:-

“In the same vein the Petitioners’ allegations that the Respondent did not resign his appointment were not supported by any form of documentary evidence. Instead it was the 1st Respondent who tendered Exhibit R6C and R6D. ”

The Appellants have not advanced any special reason why this Court should disturb these findings of fact of the trial Tribunal arrived at after the evaluation of the evidence presented by the contesting parties. The evaluations of evidence leading to these findings are logical and are not perverse. See Lagga v. Sarhuma (2008) 16 NWLR Pt. 1114 page 455.

The first issue is therefore resolved in favour of the Respondents.

Issue Two

“Whether having regards to the evidence led by the Appellants in this case, the Tribunal was right in holding that the 1st Respondent won the F.C.T. Senatorial Election held on the 5th and 6th April, 2008 by majority of lawful votes. ”

On this second issue raised for the determination of this Appeal, S.I. Ameh SAN, Counsel for the Appellants submitted that out of the 46,736 votes allegedly scored by the 1st Respondent, 28,801 were voided by multiple thumb printing and this in effect reduced the 1st Respondent’s score to only 17,935 which puts him to the second position after the 1st Appellant’s score of 28,118 being the highest lawful votes cast at the election. He referred to the cases of:-

Ogu v. Ekweremadu (2006) 1 NWLR Pt. 961 Page 255 at 282; Kato v. CBN (1991) 9 NWLR Pt. 214 Page 126; ACB v. Gwagwada (1994) 5 NWLR Pt. 342 Page 25; Okagbue v. Romaine (1982) 5 SC Page 133; Ngige v. Obi (2006) 14 NWLR Pt. 999 Page 1 at 141-142.

Learned Senior Counsel further submitted that the Appellants in taking cognizance of the fact that the pooling unit/stations are the concrete foundation on which election process is built, election rigging by multiple thumb printing or any other means must be visited by nullifying the rigged votes and that the Appellants has proved this unfortunate act by substantial expert evidence during the trial proceedings after duly pleading same. He referred the Court to paragraphs 28, 29, 30 and 31 of the Petition.

S.I. Ameh SAN maintained that the above-mentioned paragraphs are in pari materia with the statement of PW9 admitted in evidence as Exhibit P9 particularly paragraphs 19,20,21,22 and 23 thereof. He submitted that that evidence clearly establishes the fact of multiple thumb printing of ballot papers all of which were found to be in favour of the 1st Respondent.

Learned Senior Counsel contended that PW6, a finger print expert whose report was admitted in evidence as Exhibit P6A1 – 556, stated that he examined 33,100 ballot papers out of which 28,801 were affected by multiple thumb printing all of which were amongst the 49,736 votes cast in favour of the 1st Respondent.

He maintained that PW6 identified the said ballot papers which were duly tendered in evidence and demonstrated by him at the trial, though the demonstration was stopped at the instance of the Tribunal due to lack of sufficient time.

S.I. Ameh SAN submitted that 115 ballot papers from Yangoji Primary School Polling Station Code 001 in Kwali Area Council Code which was the sample of that demonstration was admitted in evidence as Exhibit PCB 1 – 115 and that in the course of trial, the Tribunal noted that since the remaining original ballot papers were already in evidence, there would be no need for the witness to demonstrate the remaining ballot papers.

Learned Senior Counsel submitted further that the evidence of PW6, apart from being admissible expert evidence was neither challenged nor contradicted by any of the Respondents. He referred to the cases of: Ya’u v. Dilwa (2001) FWLR Pt. 62 Page 1987 at 2015; Edoho v. State (2003) FWLR Pt. 173 Page 29 at 34; Ngige v. Obi (2006) FWLR Pt. 330 Page 1041 at 1059; Oyebanjo v. Olaniyi (2000) FWLR Pt. 5 Page 829 at 835.

S.I. Ameh SAN maintained that the Appellants led credible expert evidence to prove the allegation of multiple thumb printing by the evidence of PW6 and that the 1st Respondent unsuccessfully attempted to rail-road the Tribunal to compel the Director of State Security Service to release four of his men to the 3rd Respondent notwithstanding that the 3rd Respondent never applied for it.

He stated that the Tribunal had earlier in the course of the trial allowed the 1st Respondent to procure forensic expert of his choice to provide a rebuttal evidence against the expert called by the Appellants but they refused and/or neglected to utilize the opportunities so provided and that this underscores the fact that the Respondents had nothing adverse to similarly tender against the Appellants.

S.I. Ameh SAN maintained that it is the evidence of PWII (Mohammed Umar) who is the Director of Operation of the 3rd Respondent that he personally handed over the ballot papers to PW6’s team and while giving evidence before the Tribunal, he confirmed that the ballot papers which were Exhibit before the Court which were also shown to him were the ballot papers he released to PW6.

Learned Senior Counsel submitted, contrary to the position taken by the Tribunal, that expert evidence is only meant to back up direct evidence and that the allegation of multiple thumb printing can be effectively proved without leading direct evidence of the persons who personally witnessed such multiple thumb printing who are only known to the adverse party.

He maintained that the report of the forensic examination from an expert witness PW6 who was subpoenaed by the Tribunal and therefore independent, is concrete and overwhelmingly strong.

Learned Senior Counsel submitted that the forensic report proved the allegation of multiple thumb printing of 28,801 votes all in favour of the 1st Respondent and that it suffices as admissible evidence that ought to have been replied upon and wonders what further evidence was needed by the Tribunal. He referred to the case of Omoboriowo v. Ajas;” (1984) 1 SCNLR Page 108 at 152 para. H.

S.I. Ameh SAN submitted that the Tribunal was in grave error when it held as follows:-

“It is rightly submitted by the learned Counsel to the 3rd – 662nd Respondents that for Exhibit P6A – 556 to be of any help to the Tribunal, PW6 ought to have gone further to attach the diagram of the fingers of individuals that thumb printed the ballot papers or the photograph o(the ballot papers that was scanned.

We are in agreement with his suggestion and thought that PW6 would convince us during the demonstration in Court but this was not to be.” (underlining mine).

He maintained that in the first place, the suggestion of Counsel to the 3rd – 662nd Respondents which the Tribunal adopted was not part of the evidence before the Court; Secondly, the Counsel who made the suggestion in her written address is not an expert neither did she testify at the trial.

Learned Senior Counsel submitted that this system is not a product of common knowledge or usage of mankind. He referred to the case of Ya’u v. Dilwa (2001) FWLR Pt. 62 Page 1987 at 1998 .

He further submitted that the Tribunal was therefore in grave error when it failed to accord probative value to the evidence of PW6 and that there was no need to tender any photograph of ballot papers when the original ballot papers were tendered and admitted in evidence as Exhibits P6A1-556.

Learned Senior Counsel argued that the duty placed on the Appellants by Law is to prove his case on preponderance of evidence.

He maintained that the Tribunal admitted that the factual basis of the expert report was ably demonstrated in open Court and referred to page 2751 of the Record of Appeal.

S.I. Ameh SAN submitted that the Tribunal had held that “in the instant case, though the tribunal allowed PW6 to demonstrate the factual basis or criteria for the conclusion that there were multiple thumb printing of the ballot papers” but that the lower Tribunal misdirected itself by simply refusing to accept the admissible expert evidence without giving any reason at all when it stated as follows: “We did not comprehend neither were we convinced hence we are bound to accept it. ”

He further submitted that there is nothing on record that showed that the lower Tribunal was precluded from questioning the PW6 in order to clarify any grey areas or any ambiguity and that they did not express any difficult in understanding the witness but had even found that indeed PW6 is an expert. Learned Senior Counsel maintained that the finding of the Tribunal that Exhibits P6Al-556 is worthless, vague, inchoate and incurably defective and thereby rejecting same is perverse and not borne out of judicious and judicial evaluation of the evidence led at the trial. He referred the Court to NEPA v. Arobieke (2006) 7 NWLR Pt. 979 Page 245 at 272 para F-H and page 273 para A-C.

S.I. Ameh SAN urged the Court to accept the unchallenged evidence of PW6 and accord it its full value and hold that the fact of multiple thumb printing of 28,801 votes counted in favour of the 1st Respondent has been duly proved.

He further urged the Court to deduct such illegal and invalid votes from the total score of 46,736 votes credited to the 1st Respondent and declare the 1st Appellant as winner to that election.

Learned Senior Counsel submitted that the law is settled that he who alleges must prove and that the burden of proof lies on the person who will fail if no evidence is led in support of any allegation in the pleadings and referred the Court to Section 136 of the Evidence Act.

He however argued that this general principle of Law is subject to so many exceptions but shall concern themselves with the exceptions relevant to the determination of this Petition.

S.I. Ameh SAN further submitted that it is well established principle of law that where allegations made in pleadings have not been controverted by the adverse party, such averments are deemed to be admitted and the position in law is that no evidence need be led in respect of those unchallenged allegations.

He maintained that the Appellants in the Petition made series of allegations of non-compliance with the provisions of the Electoral Act 2006 but the Respondents did not specifically deny them.

Learned Senior Counsel submitted that the Appellants led credible expert evidence to prove the allegations of multiple thumb printing by the evidence of PW6 and that there was nothing to the contrary that could be weighed against the Appellants’ evidence.

He further submitted that the Appellants were therefore entitled to judgment even without adducing evidence at the trial but this fact notwithstanding, the Appellants had adduced credible including expert evidence which proved the averments made in the Appellants/Petitioners’ pleading.

Learned Senior Counsel maintained that PW6 in his Witness Statement clearly testified on the process used in the analysis using forensic equipment, explained the types of patterns and different characteristics of the finger prints. He referred the Court to pages 1290 – 1294 of the Record.

He submitted that under cross-examination, PW6’s evidence as to his qualification, experience and knowledge of finger print analysis was snot shaken and had convincingly explained the factual basis of their conclusion but the Respondents failed to produce any contrary evidence or contradict him with any other expert opinion to counter their analysis and conclusion.

Learned Senior Counsel maintained that in the course of the evidence of PW6, the leave of the Tribunal was sought for him to demonstrate the manner in which the analysis of the ballot papers were made by PW6 and his team; that PW6, in the course of the demonstration which the Tribunal limited to ten minutes, with the use of his forensic equipments and to the glare of everybody present before the Tribunal separated the ballot papers which carried the various patterns as contained in his witness statement.

S.I. Ameh SAN urged the Court, on the basis of the foregoing, to give full weight to the content of Exhibits P61-556 and accordingly declare the 1st Respondent’s 28,801 votes infested by multiple thumb printing virus as invalid and accordingly deduct them from the 1st Respondent’s total votes.

He submitted that if the said 28,801 votes deducted from the 1st Respondent’s votes, the scores of PDP will be 17,935 as against the ANPP’s 28,118, hence ANPP will lead with 10,183 votes.

Learned Senior Counsel referred the Court to the recent case of Prof. Senator O. Osunbor v. Comrade Adams Oshiomole Unreported Appeal No. CA/B/179A/2007.

He submitted that the Lower Tribunal was clearly in error when it dismissed the case of the Appellant and the Tribunal proceeded on a wrong footing when it accepted the suggestion proffered in the written Address of the Counsel to the 3rd – 662nd Respondents to introduce an extraneous fact which is not scientifically based nor was it part of the evidence before the Tribunal.

He maintained that if this suggestion is credible, the 3rd – 662nd Respondents would have called on expert witness to give such evidence at the trial and it would have gone through the crucible of cross-examination as cases are not fought in Court based on suggestion but hard facts which are tested in cross-examination. S.I. Ameh SAN further submitted that the Appellants have successfully discharged the burden placed upon it by Law and urged the Court to so hold and declare the 1st Appellant as the winner of the Senatorial Bye Election held on the 5th and 6th April, 2008 in the Federal Capital Territory Senatorial District, Abuja.

He further urged the Court to allow this Appeal and grant the reliefs sought by the Appellants in the Petition.

In his response, Counsel for the 1st Respondent, Adekola Mustapha submitted that it is a notorious principle of law that allegation of multi-voting or multi thumb printing of ballot papers and stuffing of ballot papers constitutes criminal allegation which the Petitioners are required to prove beyond reasonable doubt. He referred the Court to Section 138(1) of the Evidence Act and the cases of:

Nwobodo v. Onoh (1984) SCNLR 1; Falae v. Obasanjo (1999) 4 NWLR Pt. 559

He further submitted that in an election petition where allegation of crime is made, the standard of proof is the same as in a criminal case.

Learned Counsel pointed out that all the authorities cited in support of Appellants’ contention/assumption in paragraph 4.21 of page 21 of their Brief of Argument are not applicable in the circumstances of this case.

He maintained that the law is that the Court does not work on assumptions but on concrete facts supported by evidence and case law; and that it is therefore wrong for the Appellants to make an assumption of cancellation of lawful votes scored by the 1st Respondent on the basis of an allegation not proved in law. He referred the Court to the case of Ezemba v. Ibeneme (2004) 14 NWLR Pt. 895 Page 617 at 689 Para. C-D.

Adekola Mustapha submitted that the learned trial Tribunal, contrary to the insinuation made by the Appellants that the expert evidence was not challenged or controverted by the Respondents, carefully examined the evidence of PW6 admitted as Exhibit P6A1 – 556 the ensuing cross-examination before arriving at the findings on page 2742 of the Record.

He submitted further that it cannot be true by any stretch of imagination that the expert evidence was neither challenged nor contradicted by none of the Respondents as alleged by the Appellants at page 22 of their Brief.

Learned Counsel maintained that not only that the evidence was challenged and severely battered but that the Court is not even under a compulsion to admit expert evidence and rely on it where the evidence is unreliable and contradictory. He referred to the cases of:

Edoho v. State (2003) FWLR Pt. 173 Page 29; Oyebajo v. Olaniyi (2000) FWLR Pt. 5 Page 829 at 835.

He submitted that even when a piece of evidence is not challenged or controverted as alleged by the Appellants, that alone is not enough to make the Court rely on it as the Courts will only rely on evidence that are credible. Learned Counsel referred the Court to page 2747 of the Record where the Tribunal considered the same complaint and responded thus: The contention of the learned silk for the petitioners that the testimony of PW6 and report (Exhibit P6A1-556) were neither challenged nor controverted by the Respondents is not the true position of the case.”

He maintained that Tribunal went further to say that the Respondents during cross examination vehemently attacked and opposed the authenticity of the report as well as the skillfulness of the expert.

Adekola Mustapha on the merits and demerits of PW6’s report, queried how PW6 came to the conclusion that 28,801 ballot papers were thumb printed by one or more persons.

He maintained that he was in agreement with the submission of learned Counsel for 3rd – 662nd Respondents that for Exhibit P6A1-556 to be of any help to the Tribunal, PW6 ought to have gone further to attach the diagram of the fingers of individuals that thumb printed the ballot papers or the photograph of the ballot papers that were scanned.

Learned Counsel submitted that he thought PW6 would convince them during the demonstration in Court but that this was not to be as the demonstration did not convince them. He maintained that even the 115 ballot papers from Ijapada Primary School brought as sample were not explained or compared with genuine or fake ballots as they were merely tendered in evidence without further explanation.

He further submitted that the fact that the experts were requested to examine and did examine only the ballot of one party (PDP) leaving that of the petitioners (ANPP) and other parties calls for caution.

Learned Counsel maintained that it is settled law that the Court is not bound to accept the opinion of an expert and act on it especially where such opinion conflicts with common sense and usage of mankind. He referred to the cases of:

Elijah Oko v. State (1971) 1 NMLR 140; A.N.T.S. v. Atoloye (1993) 6 NWLR Pt. 298 Page 233 at 253.

Adekola Mustapha submitted that the fact that the Respondents did not call another expert to dislodge, contradict and make unreliable the evidence of PW6 and Exhibit P6A1-556 does not preclude the Petitioners from proving their petition by credible evidence or through cross-examination and that there is no need for the defence to bring any other expert evidence to counter it.

Learned Counsel maintained that it is the law that he who asserts must prove since proof in this allegation is beyond reasonable doubt, the petitioner must prove the allegation convincingly by credible evidence and that the Petitioners on who the burden of proof lies must rely on the strength of their own case and not on the weakness of the opponent. He referred the Court to the case of UTB v. Awanzingana Eng. Ltd. (1994) 6 NWLR Pt. 348 Page 56 at 81.

Adekola Mustapha further submitted that expert evidence is only meant to back up direct evidence but that in the instant case, the petitioners did not adduce direct evidence from the agent, INEC workers and supporters of the political parties or security agents on the allegations of multiple thumb printing of ballots even when the Petitioners said they had agents all over on the election day, none of them was called to testify. He referred to the case of Lahaji Abba G. Taraba v. Maina Lawan & ors. (1992) Pt. 231 Page 569 at 590.

Learned Counsel maintained that the position taken by the Appellants in paragraph 4.2.6 at page 24 of their Brief that the 1st Respondent did not utilize the opportunity given him to procure a forensic expert of his choice is not a defence for the Appellant not to prove the allegation of multiple thumb printing of ballot papers beyond reasonable doubt.

He further submitted that because of the Appellants’ inability to offer credible evidence in support of the allegation, the heavy burden of proof which lies on them did not shift to compel the 1st Respondent to offer an explanation to the contrary by calling a forensic analyst to show that the ballot papers were not multiple thumb printed. He referred to Imam v. Sheriff (supra) and Section 138 of the Evidence Act.

Learned Counsel referred the Court to page 27 of the Appellants’ Brief and maintained that therein an attempt was made by the Appellants to indict the Tribunal for not questioning the PW6 to clarify grey areas or ambiguity in the witness duty. He argued that if the so called expert presents his evidence in a manner that the Tribunal could not comprehend or understand what he was saying and the Appellants who brought him could not make up, then he cannot be heard to complain as the duty of the Judge is to adjudicate as an unbiased umpire and not to take up the case of either of the party.

Adekola Mustapha further submitted that a Plaintiff succeeds on the strength of his case and not on the weakness of the Defendant’s case. He referred to the cases of:

Enigwe v. Akaigwe (1992) 3 NCNLR Pt.255 Page 505; Otunla v. Ogunowo (2004) 6 NWLR Pt. 868 Page 197 Para. A.C.

He maintained that it is the law that where an allegation of commission of crime has not been proved beyond reasonable doubt, any and all possible doubts must be resolved in favour of the person accused of committing such crime. He referred to the cases of:

Imam v. Sheriff (supra); Kalu v. State (1988) 4 NWLR Pt. 90 Page 503.

Learned Counsel submitted that the Tribunal was not in error as suggested by the Appellants in paragraph 4.2.10 of pages 26-27 of their Brief rather what the Tribunal did was to accept the analysis of the evidence of PW6 made by Counsel to the 3rd- 662nd Respondents. He further submitted that the analysis of the evidence has nothing to do with scientific analysis of the ballot papers conducted by PW6.

He maintained that what the Tribunal did was to agree with the loophole identified in the evidence of PW6 by the Respondents which renders the evidence unreliable and that the Tribunal gave a passionate consideration to the evidence of PW6 and analysed it before coming to an irresistible conclusion that it is unreliable, vague, inchoate and incurably defective.

He submitted that the allegation in the instant case bothers on criminality and the standard of proof required of the Appellants is that of proof beyond reasonable doubt which is very strict.

Adekola Mustapha further submitted that there is no reason to disturb the findings of fact and evaluation of evidence made by the Tribunal and urged the Court to resolve the issue in favour of the 1st Respondent.

In his response, Chief (Hon.) Olusola Oke Counsel for the 2nd Respondent submitted that the burden of proving the allegation of multiple voting, multiple thumb printing of ballot papers and ballot stuffing by the 1st and 2nd Respondents by themselves and through their supporters and agents in connivance with agents and officers of 3rd and 4th Respondents responsible for the conduct of the election rests squarely on the Petitioners. He referred to:-

Section 137 of the Evidence Act; Magaji v. Odofin (1978) 4 SC 91; Agballa v. Nnamani (2005) All FWLR Pt. 245 Page 1052.

He maintained that the claim in the instant case is predicated upon serious criminal allegations and that the Appellants are required to prove the criminal allegation beyond reasonable doubt as provided in Section 138(1) of the Evidence Act. Learned Counsel also referred the Court to Abraham Nabature v. Aliyu Maluta & 81 ors (1992) 9 NWLLR Pt. 263 Page 85 at 106.

Learned Counsel referred to paragraphs 28, 29 and 30 of the Petition at pages 74-91 of the Record and pointed out that the ground upon which the Appellants desired the Tribunal to void 28,801 votes out of the 46,736 votes ascribed to the 1st and 2nd Respondents by the 3rd Respondent was that the said votes were vitiated by the Commission of the following electoral offences: multiple voting, multiple thumb printing of ballot papers and ballot box stuffing. He maintained that the above electoral offences were alleged to have been committed by the 1st and 2nd Respondents by themselves and through their supporters and agents in connivance with agents and officers of the 3rd and 4th Respondents responsible for the conduct of the election but that the supporters and agents of the 1st and 2nd Respondents who were alleged to have committed the said offences were not named as Respondents in the proceedings and also the agents and officers of the 3rd and 4th Respondents accused of connivance with those of the 1st and 2nd Respondents were neither named in the Petition nor established during the trial.

Learned Counsel submitted that since it is the Appellants who desire the cancellation of 1st and 2nd Respondents’ votes so that they may be returned as winners, they in Law bear the burden of establishing by credible evidence that the votes credited to the 1st and 2nd Respondents are not lawful votes in that the above listed offences were committed by the Respondents or on their authority and consent by their identified agents. He referred the Court to Buhari v. Obasanjo (2003) 13 NWLR Pt. 941 Page 122.

Chief (Hon.) Olusola Oke maintained that the acts alleged against the Respondents constitute Electoral offences. He referred the Court to Section 129(1)(c),(d) and (e) of the Electoral Act 2006.

He submitted that the act of multiple thumb printing or multiple voting is also prohibited under Section 541(1) of the Electoral Act, 2006 and punishable under Section 134(2) of the Electoral Act, 2006.

Learned Counsel further submitted that from the referred provisions of the Electoral Act, the act of voting more than once alleged by the Appellant implies that the culprits after voting lawfully as registered voters also presented themselves as other persons registered in the unit to vote under other names other than theirs or not being registered voters at such units presented themselves as persons whose names appear on the register and thereby voted with or under names other than theirs.

He maintained that the above act without argument constitutes the crime of impersonation under Section 484 of the Criminal Code Act and that Sections 130(1) and (3) prescribe offences and penalties for officers of the 3rd Respondent who breached his official duty during election.

Learned Counsel argued that it is the above criminal acts that the Appellants presented before the Tribunal and employed as the basis for inviting the said Tribunal to nullify 28, 807 of the votes credited to the 1st and 2nd Respondents. He submitted that by their pleading, unreliable evidence and submissions, the above crimes were made the basis of the Appellants’ claim that the 1st Respondent did not score the majority of lawful votes cast at the election.

Learned Counsel further submitted that for the Appellants to succeed in this claim, they must establish the alleged crime beyond reasonable doubt through credible evidence. He referred the Court to the cases of:

Oni v. Aderinka (1999) 8 NWLR Pt. 562 Page 425 at 430-431; Weber Egbe v. Gabriel Etche (1950-1955) NNWLR Pt. 134; Prof. Opia v. Felix Ibru & ors (1992) 3 NWLR Pt. 231 Page 658 at 708-709; Buhari v. Obasanjo (supra) at Page 233.

Chief (Hon.) Olusola Oke maintained that the burden on the Appellants to prove the above allegation is further made heavier by the presumption of genuineness, correctness and validity of the result declared by the 3rd Respondent unless otherwise rebutted by the Appellant through credible evidence, hence the burden lies in the Appellants challenging the result declared by INEC in this case to rebut the allegation through credible evidence. He referred to the cases of:- Hashidu v. Goje (2003) 15 NWLR Pt. 843 Page 361 at 363; Buhari v. Obasangjo (supra); Omoboriowo v. Ajasin (1984) NSCC Page 81 at 82 and Sections 116, 149(c) and 150(1) of the Evidence Act.

Learned Counsel submitted that the Appellants called 9 witnesses, none of whom gave eye witness account of the alleged acts of multiple thumb printing, multiple voting, ballot box surfing and connivance at the various units where the 28, 901 votes were to be discounted, thus the Appellants failed to comply with the provisions of Sections 76 and 77 of the Evidence Act.

He maintained that the acts of multiple voting, multiple thumb printing of ballot papers, ballot box stuffing and connivance constitute facts which could be seen and the primary evidence to establish the allegation should have been evidence of the witnesses who saw those acts perpetuated and that the Appellants, not being magicians, could not have reasonably been expected to be at the various polling stations to have personally witnessed the corrupt practices alleged but there is evidence before the Court that the Appellants had agents in the various units who would have competently testified to the truth or otherwise of the criminal allegation.

Learned Counsel submitted that failure to call these agents and supporters as witnesses is fatal to the case of the Appellants with respect to the above criminal allegations. He referred the Court to the case of Buhari v. Obasanjo (supra) at Pages 315-316 para B-D.

Chief (Hon.) Olusola Oke submitted that none of the 9 witnesses called by the Appellants gave evidence of the occurrence of the above criminal acts at any of the units that constitutes the Federal Capital Territory Senatorial District and that at page 2681 of the Record, PW9 under cross examination confirmed that he did not personally witness the incidence of multiple thumb printing of ballot papers and over voting.

He pointed out that having failed to comply with Section 77 of the Evidence Act as applied in the cases earlier referred to; the Appellants sought refuge under Section 57 of the Evidence Act.

Learned Counsel submitted that Section 57 of the Evidence Act cannot be invoked without primary evidence upon which the Court will be required to form opinion as the opinion of a trial Court will be required where a party has alleged and proffered primary evidence of a fact confirmation of which requires scientific analysis or expert opinion. He referred to the cases of Owale v. Shell Petroleum Development Co. Ltd. (1997) NWLR PI. 480 Page 148 at 183.

He further submitted that the Court will require expert opinion on “facts provided in evidence” not on facts pleaded; thus, a party seeking to establish the pleaded facts must first adduce evidence and thereafter present before the Court the opinion of expert for the purpose of bringing out through the special skill or knowledge of the said expert features and characters of the subject which the uninitiated or unlearned might not otherwise understand; hence an expert opinion which is not based on “facts provided in evidence” by the parties especially the party alleging is not the one contemplated by Section 57 of the Evidence Act, 2006.

Learned Counsel maintained that in this case, the subject matter is multiple thumb printing, multiple voting and stuffing of ballot boxes which are facts that need to be placed before the Court as required by Section 77 of the Evidence Act and thereby provoking the need for the Court to form an opinion, which opinion the Court will require the skill or knowledge of an expert in finger impressions to form based on scientific criteria provided by the said expert.

Chief (Hon.) Olusola Oke submitted that the failure of the Appellants to first call persons present at the various units to give eye witnesses accounts of the alleged acts of multiple voting, multiple thumb printing and ballot box stuffing is fatal to the case of the Appellant, thus the evidence of PW6 which purports to be evidence of an expert hangs on the air and cannot be accepted to have established beyond reasonable doubt the above criminal allegations.

He further submitted that the lower Court is justified in coming to the conclusion that Exhibit P6A1-556 containing the purported expert opinion is worthless, vague, inchoate and incurably defective and therefore rejected it in its entirety.

Learned Counsel maintained that the Tribunal was right in holding at page 2753 of the Record that PW6 did not assist it in understanding or comprehending his expert evidence, both oral and documentary.

He submitted that the Tribunal’s view at page 2753 of the Record that expert evidence is meant to back up direct evidence has not been challenged by the Appellants and is therefore deemed admitted by the Appellants as correct statement of law.

Learned Counsel further submitted at the critical question at this stage is whether the quality of the evidence of PW6 oral and documentary meet the standard required of expert opinion which a trial Court should accept if not rebutted or contradicted?

He maintained that the criteria laid down upon which a person may be accepted by a Court as an expert are as follows:-

(1) He must state his qualification.

(2) He must satisfy the Court that he is an expert in the subject matter upon which he gives his opinion.

(3) He must state clearly the reason or scientific basis for his opinion.

Learned Counsel referred the Court to the cases of:- Nambrai Sambo v. Kano Native Authority (1960) NMLR Pt.15 Page 17; Azu v. State (1993) 6 NWLR Pt. 299 Page 302.

Learned Counsel submitted that these criteria are conjunctive, therefore where an expert fails to meet any of these criteria, the Court before which he testified is at liberty to refuse to accept his testimony or opinion. He referred to Ogiale v. S.P.D.C. Nig. Ltd. (1997) NWLR Pt. 480 Page 148 at 183.

He maintained that going through the testimony of PW6 at page 2347 of the Record and considering the contents of Exhibit P6A1-556, it is clear that the so called “expert” failed woefully to utilize his alleged skill or knowledge to bring out and demonstrate features or characteristics of finger print impressions which the uninitiated or unlearned might not otherwise understand so that such revelation will guide the Court regarded in such circumstance as “laymen”.

He maintained that Exhibit P6A1-556 is a clerical assemblage of serial numbers and arithmetic entries which are seen and can be seen by the Court and any person without the assistance of an expert; and that there is nothing in the said exhibits furnishing the Court with the “necessary scientific criteria” for testing the accuracy of the conclusions reached in the covering letter so as to enable the Judges of the Lower Tribunal to form their own independent judgment by the application of those criteria in the facts provided in evidence.

Learned Counsel submitted that the “expert” failed to utilize his skill or knowledge to bring out and demonstrate before the Tribunal features or characteristics of finger print impression to guide the Court and that the Tribunal was justified in its holding at page 2753 of the Record. He also referred the Court to page 2754 of the Record of Appeal.

Chief (Hon.) Olusola Oke further submitted that the above findings and conclusions of the trial Tribunal cannot be faulted and that there is nothing shown on the Appellant’s Brief to justify the invitation to this Honourable Court to disturb the above findings and conclusion.

He maintained that there is nothing to evaluate in Exhibit PW6 A1-556 and the testimony of PW6, that it is worthless and therefore carries no evidential value worth the paper on which it is written. He referred the Court to paragraphs 14, 15 and 16 of PW6’s Witness Statement on Oath and what Pw6 said during cross examination at page 2352 of the standard which is capable of evoking belief on the Court before which h it is rendered. He referred the Court to the cases of:-

Ogiale v. S.P.D.C. Nig. Ltd. (supra); A.N.T.C. v. Atoloye (1993) 6 NWLR Pt. 298 Page 233 at 258; Ngige v. Obi (2006) AFWLR Pt. 330 Pages 1041-1059.

Learned Counsel submit that PW6’s testimony is not credible, was challenged and discredited by cross-examination and did not come from an expert with demonstrable skill.

He further submitted that the Court was therefore in the above circumstance not bound to accept the opinion of PW6.

Learned Counsel maintained that the submission of learned Silk at page 22 paragraph 4.2.5 is erroneous and that the cases of Ya’u v. Dilwa (2001) FWLR Pt. 62 Page 1987 at 1998; Edoho v. State (2003) FWLR Pt. 173 Page 29 at 34; Ngige v. Ohi (supra) at Page 1059 and Oyebanjo v. Olaneye (2000)FWLR Pt. 5 Page 829 at 135 are inapplicable to this case are therefore with respect cited out of con.

He also submitted that in this case where it is agreed that PW6 was recruited, briefed and called by the Petitioners to give evidence before this Court unsolicited, his evidence cannot be said not to have been tainted with bias and failure and that the failure to examine all ballot papers, the demonstrated eagerness to reach conclusions without basis and the general hollowness of the report point to only one irresistible conclusion that PW6 was acting a script based on a mind set, therefore the Court was justified in not acting on his evidence. He referred to the case of U.T.B. v. Awaringama Ent. Ltd. (1994) 6 NWLR Pt. 648 Page 56 at 81.

Learned Counsel further referred to Pages 2729 to 2754 of the Record on the view and conclusion of the Tribunal on why the evidence of PW6 as contained in his oral and documentary testimony cannot be accepted nor ascribed probative value and submitted that no reasonable Tribunal would act otherwise than to reject the Exhibit as lacking in evidential value as the trial Tribunal admirably did in this case.

Chief (Hon.) Olusola Oke concluded that the declaration made by the 3rd Defendant that the 1st Respondent, candidate of the 2nd Respondent scored the highest number of votes and therefore the winner of the said election remain valid.

Learned Counsel further submitted that the submission of the Appellants at pages 33, 34 and 35 of their Brief of Argument are without basis and that the case of Osunbor v. Oshiomole (supra) cited is completely irrelevant.

He urged this Honourable Court to resolve this issue against the Appellants in favour of the 2nd Respondent.

In her response, Mrs. A. E. Taju, Counsel to the 3rd – 662th Respondents submitted that contrary to the Appellants’ contention in paragraph 4.2.1 of page 20 of their brief, the Appellants did not adduce sufficient material, cogent and credible evidence to warrant the exercise of the trial Tribunal’s power in granting their Petition in their allegation that 28,801 out of 46,736 Senatorial votes were voided by multiple thumb printing.

Learned Counsel urged this Honourable Court to note that contrary to the submission in paragraph 4.2.3 of page 21 of the Appellants’ brief that PW6 examined 33,100 ballot papers, out of which 28,801 were affected by multiple thumb printing, the correct position is that PW6 in actual fact examined a total of 54,605 ballot papers for both the Senatorial and House of Representatives bye-elections between 13/6/08 and 16/7/08 with a magnifying glass out of which 45,046 were purportedly voided by multiple thumb printing. She referred the Court to page 2352 of the Record of Appeal.

Mrs. A.E. Taju maintained that the Court is not bound to accept the opinion of an expert and act on it especially where such opinion conflicts with common sense and the usage of mankind. Learned Counsel referred to the cases of:-

Elihah Okoh v. State (1971) 1 NWLR 140; Ants v. Antoloye (1993) 6 NWLR Pt. 298 Page 233 at 253.

She argued that it is not in dispute that the 74th – 662nd Respondents in this Appeal are presiding officers of Polling Units where the Appellant had their polling agents and the polling units are 588 in number.

Learned Counsel further maintained that the Appellants rightly took cognizance of the fact that the polling units/stations are the concrete foundation on which election process is built. She referred the Court to paragraph 4.2.2 of the Appellants’ Brief.

She also referred the Court to the provisions of Section 75 of the Electoral Act, 2006 and page 2374 of the Record of Appeal where the 1st Appellant admitted in cross-examination by Counsel for the 3rd – 662nd Respondent that he had Polling agents in all the polling units, that none of the agents told him that they were forced to sign the results and that his supporters voted for him using the open secret ballot system.

Mrs. A.E. Taju submitted that it is an affront to common sense to suggest that PW6 could have physically examined and compared 54,605 ballot papers between 13/6/08 and 16/07/08 to come up with his conclusion that 28,801 ballot papers for the Senatorial Election and 16, 245 ballot papers for the House of Representatives election (a total of 45,046) were voided by multiple thumb printing – using a magnifying glass – the only scientific equipment he had and that PW6’s expert opinion clearly conflicts with common sense and the usage of mankind.

Learned Counsel further submitted that it is an affront to common sense to suggest that in the 588 polling units manned by the 74th – 662nd Respondents, units where the Appellants’ agents were visibly present, one or two person without identity multiple-thumb-printed ballot papers in favour of PDP as that would mean that contrary to Form EC8E (Exhibit P5R1 which is the Declaration of Results) all the Form EC8As (Statement of results from polling units) in evidence before your lordships, the 1st Respondent received barely over 30 votes in each polling unit or station.

She urged this Court not to attach any weight to Exhibit P6A1 – 556 as it conflicts with common sense and the usage of mankind and to uphold the decision of the Tribunal that the said expert opinion was not credible.

Learned Counsel further submitted that an allegation of multiple thumb printing of ballot papers is an allegation of the commission of a criminal offence for which penalties are stipulated in Section 129(1)(d) of the Electoral Act, 2006. She referred to Section 138 of the Evidence Act which provides that the burden of proof where an allegation of crime is made against a Respondent is beyond reasonable doubt and to the cases of:-

Nwobodo v. Onoh (1984) 1 SCNLR 1 per Bello JSC at 32; Oni v. Adeyinka (1999) 8 NWLR Pt. 562 Page 425 at 430-431.

Learned Counsel submitted that it is trite law that the duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusions so as to enable the Judge or jury to form its own independent judgment by the application of the criteria to the facts in evidence before it.

She maintained that Exhibit PW6 A1-556, the expert evidence of PW6 failed to help the Tribunal to form an opinion as sit failed to give the necessary criteria upon which the expert opinion was based, that it only contained an introduction and conclusion, a page by page itemization of serial numbers of ballot papers according to Area Council, Registration Centre, polling unit and Code number. Learned Counsel maintained that the expert report contained no explanation or proof of what it examined, was without a photograph or diagram, the serial numbers did not indicate whether the thumb print on the ballot paper was arch, tented arch, loop or whorl patters, no data, no comparisons, no criteria, no analysis, and no evaluation.

Mrs. A.E. Taju submitted that the law is settled that expert must give the necessary criteria upon which his opinion and conclusion is based. She referred the Court to the case of Ogiale v. Shell Pet. Devt. Co. (Nig.) Ltd. (1997)1 NWLR Pt. 480 Page 148 at 183.

Learned Counsel further submitted that it is trite law that the Court or Tribunal may not attach much weight to the opinion of such experts if the factual basis of such opinions are not produced before it and that the Court is not bound by expert evidence which it has neither evaluated nor analysed. She referred to the cases of:

Edoho v. State (2004) 5 NWLR Pt. 865 Page 17 at 46 paragraph D-H; Okorogba v. State (1992) 2 NWLR Pt. 222 Page 244.

Learned Counsel also referred the Court to page 2347 of the Record where PW6 demonstrated and identified 115 ballot papers in respect of one JAPADA Primary School Polling Unit Code 004 Yangoji Ward in Kwali Area Council (Exhibit PCB1-115) out of the 28,801 ballot papers examined using magnifying glass. She maintained that the curious physical demonstration in PW6 in open Court clearly buttressed the Respondents’ case that Exhibit P6A1-556 was not credible.

Mrs. A.E. Taju submitted that PW6 could not show evidence of special skill in the particular branch of science in which he was called to give opinion moreso having admitted in cross examination that he examined 54,605 ballot papers between 13/6/08 and 16/7/08.

She maintained that not only was Exhibit P6A1-556 neither cogent nor credible but at the point of tendering the Exhibits, the Appellants merely dumped the ballot papers on the Court without typing specific ballot papers to the serial numbers in Exhibit P6A1-556.

Learned Counsel submitted that it is trite law that the Court cannot descend into the arena of conflict to do in the recesses of its chambers what the Appellants ought to have done in open Court; neither can the Court descend into the arena of conflict to conduct the case of one of the parties for it. She referred to the cases of: Terab v. Lawan & ors. (1992) 3 NWLR Pt. 231 Page 569 at 590 paragraphs G- H; Lamido v. Turaki (1999) 4 NWLR Pt. 600 Page 578 at 580.

Mrs. A.E. Taju further submitted the burden of proof generally rests on the Petitioners to establish their entitlement to the reliefs they are seeking for in the Petition and that the statutory requirement is that whoever desires any Court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. She referred to Section 135 of the Evidence Act.

She maintained that the Petitioner must show by evidence independent of the Respondent that he is entitled to the reliefs sought and that the Petitioner must succeed on the strength of his case. Learned Counsel referred to the case of Awuse v. Odili (2005) 1 NWLR Pt. 952 Page 416 at 500 paragraph F.

Learned Counsel urged the Court to discountenance the cases of Ya’u v. Dilwa (supra), Edoho v. State (supra), Ngige v. Obi (supra) and Oyebajo v. Olaniyi (supra) cited on pages 22 and 23 of the Appellants’ Brief as they are distinguishable from this case where PW6 discredited himself by not producing the factual basis of his expert opinion.

Mrs. A.E. Taju further submitted that contrary to the averments in paragraphs 4.2.7 – 4.2.9 of the Appellants’ Brief, the Appellants had on the 15th day of May, 2008 obtained a Court order to inspect documents used for the April 5th and 6th bye-election and that the order for inspection did not restrict and limit the Appellants to PDP ballot papers which are only what they requested for without explaining why.

She maintained that Exhibit P6A1-556 was thus neither credible nor overwhelming and needed to have been backed up by direct evidence in view of the fact that it is conflicting. Learned Counsel referred the Court to the cases of:- Buhari v. Obasanjo (2005)13 NWLR Pt. 941 Page 1 at 315; Gbadamosi v. Azeez (1998)9 NWLR Pt. 568 Page 471.

Learned Counsel submitted that the Appellants ought to have called their agents who had direct experience from the units but rather choose to rely on the evidence of PW6 who co-signed Exhibit P6A1-556 in order to establish their allegation of multiple thumb printing of ballot papers. She referred to the cases of Rashidu v. Goje (2003)15 NWLR Pt. 843 Page 352 at 393; Buhari v. Obasanjo (supra).

Mrs. A.E. Taju maintained that the act of multiple thumb printing of ballot papers is never done in thin air, the ballot papers are not invisible and that no neutral witness, presiding officer, security personnel or polling agent was subpoenaed by the Appellants to buttress their case.

She further argued that none of the Petitioners’ witnesses could explain the reason for the vote difference between Exhibit P6A1-556 and Exhibit P5R1 considering that the Appellants only examined PDP votes, did not examine ANPP rejected votes and that no police report of incidents of multiple thumb printing was attached.

Learned Counsel submitted that there is a rebuttal presumption in law that the result of any election declared by the 3td Respondent is correct and authentic. She referred the Court to the dictum of Bello JSC in the case of Nwobodo v. Onoh (1984)1 SCNLR at Page 32.

She further submitted that the Appellants failed to rebut the presumption of correctness of Exhibit P5R1 or Form EC8E.

Learned Counsel further urged the Court to discountenance the arguments in paragraph 4.2.10 and 4.2.11 of the Appellants’ Brief and the cases cited therein as the correct position of the law is that the duty of the expert is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusions so as to enable the judge or jury to form their independent judgment by the application of these criteria to the facts proved in evidence. Mrs. A.E. Taju maintained that it is therefore not enough for an expert to give a mere opinion and conclusion but leaving out the criteria upon which such opinion and conclusions must be supported by scientific analysis otherwise his evidence will be valueless. She referred the Court to the case of Ogiale v. Shell Pet. Dev. Co. (Nig.) Ltd. (supra) at Page 183 ratio 4.

Learned Counsel for the 3rd – 662nd Respondents urged this Court to uphold the decision of the trial Tribunal on these submissions and maintained further that it is settled law that a Court will only act on expert opinion where it is credible otherwise it falls flat on its face, proves nothing and the burden of proof cannot shift as sit does not need to be controverted.

She also submitted that it is trite law that address of Counsel cannot take the place of evidence but the Court or Tribunal can rely on it as the need may arise and referred the Court to the cases of: Kpana v. TRPCN (2006) 3 NWLR Pt. 966 Page 106 at 114; Abdulkarim v. Anazodo (2006) 11 NWLR Pt. 991 Page 299 at 304.

Mrs. A.E. Taju further urged the Court to discountenance all the arguments and cases cited in paragraphs 4.2.12 . 4.2.22 of the Appellants’ Brief as being inapplicable to this case. She maintained that the cases cited therein are distinguishable because they do not pronounce on the admissibility of an incurable defective document which did not state and describe serial number by serial number the type of act of multiple thumb printing and the pattern and how many ballot papers bore identical thumb prints.

Learned Counsel urged the Court, in the light of all their submissions, to resolve issue No.2 in favour of the Respondents.

In his reply to submissions of the 2nd Respondent on this issue for the determination of this Appeal, Counsel for the Appellants submitted that the 2nd Respondent’s contention that there must have been direct evidence of witness (es) upon which the expert opinion of PW6 can be based holds no water.

He maintained that the case of the Appellants in their Petition, particularly with respect to the aforementioned electoral malpractices required the Court to form an opinion on the documentary evidence i.e. ballot papers already before the Court.

S.I. Ameh SAN further submitted that assuming (without conceding) that the 2nd Respondent is right, the documents already before the Court are a specie of evidence and are as good as and indeed more reliable than oral evidence any day. He referred to the cases of: Ezemba v. Ibeneme (2004) 7 SCNJ Page 136 at 151; C.D.C. (Nig.) Ltd. v. SCOA (Nig.) Ltd. (supra) at Page 366.

He maintained therefore that the documents fully satisfy the requirement of existing evidence as submitted by the 2nd Respondent.

Learned Senior Counsel also maintained that the 2nd Respondent’s contention seeks to overstretch the provision of Section 57 of the Evidence Act as there is nowhere in that Section that is provided that the need for a judge to form an opinion as to the identity of handwriting or finger impressions can only arise where there is oral evidence or the ipse dixit of witnesses testifying to the occurrence of any event or as in this case, commission of the electoral malpractices pleaded by the Appellant.

He submitted that it is settled law that in the interpretation of Statute, the Court cannot read into the provisions thereof what is not provided therein and referred to the cases of: Awolowo v. Shagari (1979) NSCC 87 at Page 134; Onyeanusi v. Miscellaneous Offences Tribunal (2002) 12 NWLR Pt. 781 Page 227 at 250;

Tukur v. Government of Gongola (1988) 1 NWLR Pt. 68 Page 39 at 51-52.

Learned Senior Counsel further submitted that the issue of the evidence of PW6 being tainted with bias and prejudice was not one of the reasons given by the Tribunal for rejecting Exhibits P6A1 – 556 and that the 2nd Respondent has filed no Respondent’s Notice urging this Court to affirm the decision of the trial Tribunal on other grounds; as such that contention is no open to the 2nd Respondent.

He urged the Court to resolve this issue in favour of the Appellants.

S.I. Ameh SAN filed on the 2nd day of October, 2009, a list of additional authorities dated 30th September, 2009. Therein, learned Senior Counsel referred the Court to the cases of: Akpabio v. State (1994) 7 NWLR Pt. 359 Page 635 at 664-665; Nwambe v. State (1995) 3 NWLR Pt. 384 Page 385 at 408.

At the trial, the Appellants unsuccessfully sought to void 28,801 of the 1st and 2nd Respondents votes by alleging that the said votes were vitiated by multiple voting, multiple thumb printing of ballot papers and ballot box stuffing by the 1st and 2nd Respondents by themselves and through their supporters and agents in connivance with agents and officers of the 3rd and 4th Respondents responsible for the conduct of the election, subject matter of this Petition. See paragraphs 28, 29 and 30 of the Petition at pages 74 – 91 of the Record of Appeal. These allegations were however denied by the Respondents.

It is trite that in an appeal where the claim is predicated upon serious criminal allegations, the Appellant is required to prove the criminal allegation beyond reasonable doubt. Section 138(c) of the Evidence Act stipulates that:-

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. ”

See: Imam v. Sheriff (2005) 4 NWLR Pt. 914 page 80; Ogu v. Ekweremadu (2006) 1 NWLR Pt. 961 page 255; Ayogu v. Nuamaui (2006) 8 NWLR Pt. 981 page 166; Auozie v. Obichere (2006) 8 NWLR Pt. 981 page 142; Wali v. Bafarawa (2004) 16 NWLR Pt. 898 page 1; Falae v. Obasanjo (1999) 4 NWLR Pt. 559 page Oni v. Adeyinka (1999) 8 NWLR Pt. 562 page 425 at 430-431; Abraham Nabature v. Aliyu Maluta & 81 ors (1992) 9 NWLR Pt. 263 page 85 at 106; Nwobodo v. Onoh (1984) 1 SCNLR 1 at 32.

It is worthy of note that the supporters and agents of the 1st and 2nd Respondents who were alleged to have committed the said electoral offences of multiple voting, multiple thumb printing of ballots papers and ballot box stuffing were not named as Respondents in the Petition. Also the agents and officers of the 3rd and 4th Respondents accused of connivance with those of the 1st and 2nd Respondents were neither named in the Petition nor established during the trial. Since it is the Appellants who desired the cancellation of 1st and 2nd Respondents’ votes so that they may be returned as winners, they in Law shoulder the burden of establishing by credible evidence that the votes credited to the 1st and 2nd Respondents are not lawful votes due to the criminal acts they alleged were committed by the Respondents or by their identified agents on their authority and consent.

In Buhari v. Obasanjo (2005) 13 NWLR Pt. 941 page 1 at 315 Akintan JSC observed inter alia:-

“The position of the law regarding the type of evidence which must be led in support of the allegation in which figures or scores of candidates at an election are being challenged should come direct from the officers who were on the field where the votes were counted and or collated”

See also Hasidu v. Goje (2003) 15 NWLR Pt. 843 page 352 at 393.

In the instant case, rather than calling their agents or supporters who were at the polling booth where the acts of multiple voting, multiple thumb printing of ballot papers and ballot box stuffing were said to have taken place, the Petitioners/Appellants chose to rely on the evidence of PW6 who claimed to be an expert on finger printing analysis and who co-analysed Exhibit PA1-556 to establish their allegation of multiple thumb printing of ballot papers.

The expert invited by the Appellants only examined the votes cast for PDP its rival and did not examine ANPP votes which were rejected. There was also no Police report of the incident of multiple thumb printing.

The failure to call their agents and supporters as witnesses is fatal to the case of the Appellants with respect to the criminal allegations they made against the 1st and 2nd Respondents.

There is also the fact that none of the nine witnesses called by the Appellants gave evidence of the occurrence of any criminal act at any of the polling units that constitute the Federal Capital Territory Senatorial Districts.

In fact at page 2681 of the Record of Appeal under cross-examination, PW9 who is the 1st Appellant confirmed that he did not personally witness the incidence of multiple thumb-printing of ballot papers and over-voting.

I have earlier said in this Judgment that the Appellants invited a finger print expert to establish the allegation of criminal acts of the 1st and 2nd Respondents.

Section 57 of the Evidence Act relates to Expert evidence and it reads:-

“When the Court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specifically skilled in such foreign law, native law or custom, or science or art Of in questions as to identity of hand writing or foreign impressions, are relevant facts. ”

I am of the opinion that the provisions of Section 57 of the Evidence Act can only be invoked where a party has alleged and proffered primary evidence of a fact, information of which requires scientific analysis or expert opinion. It follows therefore that an expert opinion will only be required on fact provided in evidence and not on facts pleaded. An expert opinion which is not based on facts provided in evidence by the parties especially that party alleging is not the one contemplated by Section 57 of the Evidence Act.

I am of the opinion that the purpose of subjecting facts provided in evidence to expert opinion is to bring out through the special skill or knowledge of the said expert, features and characters of the subject which the uninitiated or unlearned might not otherwise understand. After demonstrating the said features and characters of the subject matter, the revelation will then guide the Court who for the purpose of that subject matter is regarded as layman.

While explaining the basis of expert opinion, this Court said in Owale v. Shell Petroleum Development Company Ltd. (1997) NWLR Pt. 480 page 148 at 183:

“the duty of an expert is to furnish the Judge with necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his own independent judgment by the application of those criteria to facts provided in evidence. ”

This Court went further to state:

“the duty of an expert is to utilize his skill or knowledge to bring out and demonstrate features or characteristics of the subject which the uninitiated or unlearned might not otherwise understand so that such revelation will guide lay men. ”

In ANPP v. Usman (2008) 12 NWLR Pt. 1100 page 1 at 72 – 73 this Court stipulated the criteria upon which a person may be accepted by the Court as an expert as follows:-

“Where the evidence of opinion of an expert is relevant he may be called as a witness and must first of all state his qualification and satisfy the Court that he is an expert on the subject in which he is to give his opinion. He must also state clearly the reason/or his opinion.”

See: Azu v. State (1993) 6 NWLR Pt. 299 page 302; Wambai v. Kano Native Authority (1965) NMLR 15; Fasugba v. Inspector General of Police (1964) 2 All NLR 15.

It follows therefore that where an expert fails to satisfy the Court before whom he testified as to the following –

(a) His qualification;

(b) That he is an expert on the subject in which he is to give his Opinion; and

(c) To clearly state the reason or scientific basis for his opinion, the Court is at liberty to refuse to accept his testimony or opinion. In his statement on oath Exhibit P6, PW6 stated in paragraphs 14, 15 and 16 thus:

“’14. That as forensic experts in finger prints in our examination of finger prints to determine multiple thumb printing we look out for patterns of the thumb prints which could either be are, tented arc, loop, whorl, twins double loop corporate and accidental.

15. That in our analysis we further studied the ridges of the said patterns and the common ridges are ridges ending, fork island, spur, cross over and lake.

16. That it is when a finger print on a ballot paper carries identical pattern and ridge with those of other ballot papers that we conclude that there is multiple thumb printings by an individual or some individuals and this is the mode we employed in respect of our examination of the ballot papers at the INEC FCT Headquarters Abuja.”

Under cross-examination PW6 at page 2352 of the Record of Appeal said:

“I do not know how many repeated arch are contained in all the ballot papers. The same goes for other patterns. I do not know how many of the ballot papers had any of the patterns.”

I am of the considered view that the evidence of an expert will amount to hearsay and therefore inadmissible where he gives his opinion in a report and is not called as a witness and cross-examined.

In the instant case, the report Exhibit P6 tendered in evidence at the trial Tribunal by the Petitioners/Appellants was signed by two experts – Inspector Tanimu Zaman and Inspector Bala Goki. The report was tendered through Inspector Bala Goki and he was cross-examined. However the second signatory to the report Inspector Tanimu Zaman did not appear in Court neither did he testify on the legitimacy of Exhibit P6.

Although PW6 said in response under cross-examination at page 3352 that:

“We examined 33,100 ballot papers.”

PW6 however failed to give evidence as to how many out of the 33,100 ballot papers were examined by him and how many were examined by the expert that did not give evidence.

I am of the opinion that the failure of PW6 to separate the ballot papers examined by him from those examined by the second “expert” who was not called as witness renders the integrity of Exhibit P6 suspect. Also, the fact that Inspector Tanimu Zaman the second signatory to Exhibit P6 was not called renders the document a hearsay evidentially and worthless.

A party relying on a document as part of its case must specifically relate each of such documents to that part of its case in respect of which the document is being tendered.

In ANPP v. Usman (supra) it was held at page 86 that:

“The Court cannot assume the duty of relating each of the documents or bundle of documents tendered in evidence to specific aspect of the case for a party. It is the duty of a party to do so for itself. It will be an infraction of the right to fair hearing if the Court or Tribunal engages itself in the recess of its chambers to fish out or guess which document relates to a particular aspect of the case of a party. Such a duty ought to be carried out in open Court by the party.”

See: Hashimu v. Goje (2003) 15 NWLR Pt. 843 page 352; Tereb v. Lawan (1992) 3 NWLR Pt.231 page 569; Jalingo v. Nyame 1992) 3 NWLR Pt. 231 page 538.

On Exhibits P6Al-556 which is the bone of contention between the parties, the trial Tribunal observed as follows:-

“Though the Tribunal allowed PW6 to demonstrate the factual basis or criteria for the conclusion that there were multiple thumb printing of ballot papers, we did not comprehend neither were we convinced hence we are not bound to accept it.

It is rightly submitted by the learned Counsel for 3rd – 662nd Respondents that for Exhibit P6A1-556 to be of any help to the Tribunal, PW6 ought to have gone further to attach, the diagram of the fingers of individuals that thumb printed the ballot papers or the photograph of the ballot papers that was scanned, we are in agreement with this suggestion and through that PW6 would convince us during the demonstration in Court but this was not to be. The demonstration did not convince us. Even the 115 ballot papers IJAPADA PRIMARY SCHOOL as sample were not explained or compared with the genuine or fake ballots. They were merely tendered in evidence without further explanation. Further to that the fact that the experts were requested to examine and did examine only the ballot of one party (PDP) leaving that of the Petitioner (ANPP) and other parties call for caution. When further asked by the 3rd – 662nd Respondents Counsel, PW6 said: ‘I do not know the votes scored by the ANPP in the last election. I do not know whether 28,810 was scored by ANPP.”

In ANPP v. Usman (supra) at 89-90 it was held as follows:-

“Admitted documents useful as they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.”

See Alao v. Akana (2005) 11 NWLR Pt. 935 page 160.

In the instant case PW6 – Inspector Bala Goki dumped on the Court the report he co-authored and failed to demonstrate features and characteristics of finger prints in Exhibits P6 – A1-556 to bring out revelations which ought to guide the Court which in this case of Finger Printing is uninitiated and unlearned to form opinion on such subject matter.

In Ngige v. Obi (2006) AFWLR Pt. 330 page 1041-1059 it was held that:-

“A Court is entitled to accept the evidence of an expert if it is credible, particularly if it is not controverted or challenged and comes from an expert with demonstrable skill.” In the instant case, the trial Tribunal in its Judgment on the expert witness and the Exhibits in contention thus:-

“the expert PW6 did not assist us in understanding or comprehending his expert evidence both oral and documentary. Exhibit P6A1 -556 contain only numbers of ballot papers in two columns and no sample of finger prints matching with those in the columns were established.”

Courts are enjoined to exercise great care and caution in accepting expert opinion especially from Handwriting experts. In UTB v. Awanzigana Eng. Ltd. (1994) 6 NWLR Pt. 348 page 56 at 81, Pat Acholonu J.C.A. (as he then was of blessed memory) cautioned thus:-

“Courts faced with the opinion of expert witness but more particularly handwriting expert should exercise great and due care in wholly accepting as gospel truth the opinion of such expert. This is because often than not, they appear to sing the song of their master i.e. the party that calls them regardless of the damage they are doing to the profession.”

In the case at hand, the trial Tribunal made a finding of fact on the Exhibits analysed by the expert witness and came to this conclusion:-

“In the light of the foregoing the Tribunal hereby holds that Exhibit P61-556 is worthless, vague, inchoate, and invariably defective and we reject it in its entirety. In the absence of any direct evidence in support of this allegation, we further hold that the Petitioners have failed to prove the allegation beyond reasonable doubt.”

I have carefully perused the entire proceedings of the trial Tribunal and the evidence presented by the contesting parties, I am of the opinion that the trial Tribunal was correct in rejecting the evidence of PW6, the so called expert procured by the Appellants for being Unreliable and incompetent. I am unable to find anything useful in the argument canvassed on behalf of the Appellants in this Appeal to warrant disturbing this proper evaluation of evidence and the findings of facts made by the trial Tribunal.

The second issue is resolved in favour of the Respondents.

There is no merit in this Appeal and it is hereby dismissed. The decision of the trial Tribunal that the 1st Respondent Senator Adamu Mohammad Sidi-Ali is duly elected and returned as 2nd Respondent’s candidate for the Senatorial seat of the Federal Capital Territory Abuja is hereby affirmed.

There will be no order as to costs.

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Other Citations: (2009)LCN/3468(CA)