Uchenna S. Okafor V. Independent National Electoral Commission (INEC) & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the judgment of the Governorship and Legislative Houses Election Tribunal for Anambra State sitting at Awka in Petition number EPT/AN/SAE/24/07 – UCHENNA S. OKAFOR V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & 5 ORS delivered on the 3rd day of March 2008 in which the 6th Respondent Barrister Nnamdi Ezike of the Peoples Democratic Party (PDP) was declared duly elected by the 1st-5th Respondents to the seat of member of the House of Assembly representing Nnewi South constituency I in the April 2007 election. The Appellant Uchenna Okafor of the All Progressive Grand Alliance (APGA) has appealed against the said Judgment by his Notice of Appeal dated the 14th March 2008 and filed on the 15th March 2008. The 1st-5th Respondents on the one hand and the 6th Respondent on the other hand have filed Notices of Preliminary Objection to the Appeal on the 2nd July 2008 and 7th July 2008 respectively pursuant to order 10 Rule 1 of the Court of Appeal Rules 2007 which objections challenge the competence of a good number of the Grounds contained in the Notice of Appeal and the issues formulated from those Grounds. For a fuller appreciation of this discourse it is pertinent therefore to reproduce the Notice of Appeal in its entirety. The said Notice of Appeal as contained at pages 730-736 of the Record of Appeal is reproduced hereunder.

IN THE COURT OF APPEAL

HOLDEN AT ENUGU

APPEAL NO.

PETITION NO. EPT/AN/SAE/24/007

IN THE ELECTION TO THE STATE LEGISLATIVE ASSEMBLY FOR NNEWI SOUTH 1 CONSTITUENCY, ANAMBRA STATE SLATED FOR 14TH APRIL 2007, RESCHEDULED TO HOLD ON 28TH APRIL 2007

BETWEEN

UCHENNA S. OKAFOR – PETITIONER/APPELLANT

AND

1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. PROF. MAURICE IWU (CHAIRMAN INEC) AND CHIEF ELECTORAL OFFICER
3. MR. NASIRU AYILARA,

THE RESIDENT ELECTORAL COMMISSIONER, ANAMBRA STATE

4. (MR. SAMUEL UMEH)

THE ELECTORAL OFFICER, NNEWI SOUTH

5. THE RETURNING OFFICER, NNEWI SOUTH CONSTITUENCY 1
6. BARRISTER NNAMDI EZIKE,

PDP HOUSE OF ASSEMBLY CANDIDATE,

NNEWI SOUTH CONSTITUENCY 1

NOTICE OF APPEAL

1. TAKE NOTICE THAT THE PETITIONER/APPELLANT being dissatisfied with the judgment, more particularly stated in paragraph 2 of the Governorship, National Assembly/Legislative House Election Tribunal sitting at Awka delivered on the 3rd day of March 2008 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing seek the relief set out in paragraph 4 and FURTHER APPELLANT FURTHER states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.
2. PART OF THE JUDGMENT COMPLAINED OF:

THE WHOLE JUDGEMENT dated 3rd March 2008.

3. GROUNDS OF APPEAL

GROUND ONE

ERROR IN LAW

The learned that tribunal erred in Law which occasioned a substantial miscarriage of justice when the tribunal held “on the rescheduled election of 28 – 04 – 07 the only evidence provided by the petitioner’s witnesses was that no bye-election was held in each of their wards on any date since the failure of the election of 14th April and that the only mention of the date 28/4/07 was by PW 1-4 under cross examination who said they were in their wards on 28/4/07 but no election took place”.

PARTICULARS OF ERROR

1. Relevant and advisable evidence obtained under cross examination can be relied upon in prove of facts.
2. Petitioner and his witnesses deposed non holding of election on 14th April 2008 or “on any day until now”
3. In the Petitioner’s Reply the petitioner pleaded that no election was conducted on 28-4-07 and that voters went out to vote but to no avail.

GROUND TWO

ERROR IN LAW

The learned trial tribunal erred in law which occasioned a substantial miscarriage of justice when the tribunal held that “Certain facts relating to voters going to their units on 28/4/07 were not averred to in the pleadings as paragraph 7 which averred to the facts on voters going out to vote and not seeing INEC Officials and electoral materials specifically referred to the election of 14/4/07. It did not refer to any other election”.

PARTICULARS OF ERROR

1. In election petitions, the whole pleading shall be read holistically so as to ascertain the gravamen of the petition’s case.
2. In paragraphs 10 of the Petition and 7 of the Petitioner’s Reply, the Petitioner pleaded that 1st – 5th Respondents did not perform their duties on 14th April 2007 or any other date and that there was no election held on 28/4/07.
3. In line with foregoing the Petitioner averred in his statement on Oath attached to the Reply at paragraph 6 that voters turned out to vote but could not.

GROUND THREE

ERROR IN LAW

The learned lower tribunal erred in law which occasioned substantial miscarriage of justice when the tribunal held that; “Certainly the scanty evidence given falls far short of the burden placed on the Petitioner to prove his case that there was no election on 28/4/07.

PARTICULARS OF ERROR

1. The evidence of the petitioner and his witnesses on the conduct of election on 28-04-07 was unchallenged.
2. The Petitioners case and evidence were corroborated by Exhibits “F, F1 – F10” “R2” and “R3”.

GROUND FOUR

MISDIRECTION IN LAW

The learned lower tribunal misdirected itself in law when the tribunal held that the burden of prove in all cases rests upon he who asserts and that the burden is on the Petitioner to produce the voters register in prove of non conduct of election in affected constituency.

PARTICULARS OF MISDIRECTION

1. In the instant case, the Petitioner asserted the negative (that there were no election) while the Respondents asserted the positive (that there was election) and therefore bear the burden of proof.
2. 1st – 5th Respondents had exclusive custody of the voters register, pleaded same and gave notice that they would rely on same at the trial.
3. Failure of the 1st – 5th Respondents to produce in court the pleaded voters register entitles the court to draw adverse inference for the inexplicable failure to produce the voters register with which the election was allegedly conducted;
4. The authorities of NNAJI VS AGBO, REMY VS SUNDAY, ANOYOM VS AGARI, AWUSE VS ODILI were misapplied in this instance in that in these cases, the electoral body did not plead or place reliance on the voters register unlike in the instance petition.

GROUD FIVE

ERROR IN LAW

The learned trial tribunal erred in law which occasioned a substantial miscarriage of justice when it held “In BUHARI VS OBASANJO (Supra) at pages 222-223, the Supreme Court held that the effect of INEC to produce a document where notice is given is not the invocation of section 149(d) of the Evidence Act but the Petitioner is allowed to lead secondary evidence in proof of same by presenting the documents he has”

PARTICULARS OF ERROR

1. In the present case, 1st – 5th Respondents pleaded the voters register but inexplicable failed to produce same
2. That there was no application or notice to produce issued against 1st-5th Respondents.
3. 1st – 5th Respondents intentionally failed to produce available and pleaded document on their exclusive custody.
4. That having failed to produce the document, the Hon. Tribunal should have invoked section 149(d) of the Evidence Act against them.

GROUND SIX

ERROR IN LAW

The learned lower tribunal erred in law which occasioned a substantial miscarriage of justice when it held “It is the result declared by the Returning Officer and found on form EC8ECD(l) that attracts the presumption of authenticity”.

PARTICULARS OF ERROR

1. The results of election start with the base/unit results upto the declaration stage where and when form /EC8E(1) is issued.
2. The recording of all the records from the unit results in forms official act of the electoral body
3. Form EC8E(1) cannot exist in isolation of forms EC8Al and EC8B1
4. Having failed to tender the base (form EC8A1) and intermediate (form EC8Bl), the form EC8E(1) tendered by the 1st – 5th Respondents has no evidential value and does not attract any presumption of authenticity especially in view of Exhibits R2 and R3.
5. The 1st- 5th Respondents did not carry any foundation to attract the presumption of authenticity in favour of Form EC8E 1.

GROUND SEVEN

MISDIRECTION IN LAW

The learned lower tribunal misdirected itself when it held that;

“Moreover post election matters are not matters within the contemplation of sections 140 – 141 of t he Electoral Act and the mistake in Exhibit R2 has not been shown to have affected the result of the election”.

PARTICULARS OF MISDIRECTION

1. Exhibit R2 and R3 are not “post election matters”
2. Exhibit R2 was the result of the election announced or released by the Electoral body showing the date of the election and candidate returned as the enabling law enjoined the Electoral body.
3. Exhibit R3 relates to the facts of the voters who voted on the day of the election which was one of the issues in controversy between the parties.
4. The Respondents never pleaded or amended their Replies to the effect that Exhibit R2 was a mistake and address of counsel it cannot amount to evidence.
5. Exhibit R2 affected the election because it stated beyond doubt the alleged election in consequence of which 6th Respondent was returned.

GROUND EIGHT

1. The judgment is against weight of evidence.

GROUND NINE

MISDIRECTION IN LAW

The learned trial tribunal misdirected itself in law which occasioned miscarriage of justice when it failed to appraise the Exhibits tendered before her especially the inconsistencies found in the F1-F10 before her.

PARTICULARS OF MISDIRECTION

Exhibits R2 and R3 which were documents relied upon by the 6th Respondent contained facts that were materially inconsistent which inconsistency supported the Petitioner’s case.

GROUND TEN

MISDIRECTION IN LAW

The learned lower tribunal misdirected itself in law which occasioned miscarriage of justice when it abandoned the main issues settled for determination of the petition at the pre-trial session by the parties.

PARTICULARS OF MISDIRECTION

The learned lower tribunal was quite aware of the issues settled for determination in the petition and yet went outside the said issues in deciding the said petition.

3a. Further grounds to be filed upon receipt of the records of proceedings.

4. RELIEFS SOUGHT FROM THE COURT OF APPEAL

To allow the appeal, set aside the judgment of the Lower Tribunal and grant the Petitioners prayer nullifying the election.

5. PERSONS DIRECTLY AFFECTED BY THIS APPEAL
6. PETITIONER/APPELANT ADDRESS

UCHENA S. OKAFOR C/ HIS SOLICITORS

B.S.C. NNAKENYI

NO. 90 ENUGU/ONITSHA

ROAD, NKPOR.

2. 1ST-5TH RESPONDENTS ADDRESS

INEC HEAD OFFICE

AWKA

ANAMBRA STATE

3. 6TH RESPONDENT ADDRESS

BARRISTER NNAMDI EZIKE ANAMBRA STATE

HOUSE OF ASSEMBLY

AWKA

DATED THIS 14TH OF MARCH, 2008.

ADDRESS

B.S.C.NNAKENYI ESQ

PETITIONER/APPELLANTS COUNSEL

NO 90 ENUGU/ONITSHA ROAD

NKPOR, ANAMBRA STATE.

What are the facts that gave rise to the judgment being appealed against? The Appellant has contended that as petitioner he contested the election into the Anambra State House of Assembly for Nnewi South Constituency I under the platform of the All Progressive Grand Alliance (APGA) which was fixed for the 14th April 2007 and later rescheduled for the 28th April 2007. The Independent National Electoral Commission (INEC) subsequently returned the 6th Respondent as duly elected. In his petition dated the 9th May 2007 and filed on the 11th May 2007, the Appellant predicated his petition on the following facts and grounds –

(a) That there was no election in the whole wards and polling units/centres in Nnewi South I Constituency because of non availability of INEC officials and electoral materials and most especially the result sheets.

(b) That there was no display of voters register in Nnewi Constituency I up till date.

(c) That there was no display of polling stations/units in Nnewi South Constituency I and that there was no result returned by the Returning Officer in Nnewi South Constituency I on the 14th April 2007 or on any other date whatsoever.

(d) That there was no bye election in Nnewi South Constituency I after 14th April 2007

(e) That the inability of INEC to display the voter’s register before the election scheduled for the 14th April 2007 shows that they have failed, refused and/or neglected to perform their lawful duties.

The Appellant as Petitioner then prayed for the following six reliefs which are contained on page 5 of the Records of Appeal-

(a) That the tribunal should declare that there was no election in Nnewi South Constituency I on the 14th April 2007 or on any other date whatsoever

(b) That the tribunal should declare that there was no display of voters register in Nnewi South Constituency I prior to the scheduled election of 14th April 2007 by the 1st-5th Respondents.

(c) That there was no display of polling stations in Nnewi South Constituency I prior to the election scheduled on the 14th April 2007 by the 1st, 2nd, 3rd, 4th and 5th Respondents.

(d) That there was no bye election in Nnewi South Constituency I after the failed election of 14th April 2007.

(e) That the tribunal should hold that the purported return of the 6th Respondent as duly elected in Nnewi South Constituency I is null and void.

(f) That the tribunal should order the 1st-5th Respondents to conduct election into the Anambra State House of Assembly in Nnewi South Constituency 1.

The 6th Respondent as well as the 1st-5th Respondents filed separate replies in which they joined issues with the Appellant. All the parties thus participated at the trial in the sense that they called witnesses and tendered exhibits. A total of 15 witnesses were called and 23 exhibits were tendered on all sides. At the end of the trial written addresses of counsel were by order of the tribunal filed and exchanged on all sides, and in its considered judgment the tribunal found in favour of the 6th Respondent and declared him as duly elected into the Anambra State House of Assembly for Nnewi South Constituency I hence this appeal. The Appellant’s Brief of Argument is dated the 26th June 2008 and was filed on the 27th June 2008. Appellant also filed a Reply Brief to the Brief of Argument of the 1st – 5th Respondents. The said Reply Brief is dated 22nd July 2008 and was filed on the 23rd July 2008. Appellants also filed a Reply Brief to the Brief of Argument of the 6th Respondent dated 5th July 2008 and filed on the 15th July 2008. B.S.C. Nnakenyi, counsel for the Appellants adopted and relied on all these documents. Counsel informed court that he had incorporated his replies to the preliminary objections of the 1st – 5th Respondents as well as those of the 6th Respondent in the Appellant’s reply Brief and urged us on appeal to dismiss the preliminary objection and allow the appeal. F. I. Aniukwu holding Arthur Obi Okafor’s Brief for the 1st – 5th Respondents adopted and relied on the said 1st – 5th Respondents Brief of Argument dated 1st July 2008 and filed on the 2nd July 2008 and urged this court to dismiss the appeal. Counsel to the 6th Respondent Mike Okoye adopted and relied on the said Brief of Argument of the 6th Respondent dated the 8th July 2008 and filed same day. He urged that the preliminary objection of the 6th Respondent be sustained. In the event that the court thinks otherwise, he urged that the appeal be dismissed.

I shall now deal with the preliminary objections. The Preliminary objection of the 1st – 5th Respondents relates to Ground 5 of the Notice and Grounds of Appeal filed by the Appellants on which the Respondents submit no issue was formulated and/or argued and the said Ground 5 is deemed abandoned. It is the submission of the 1st -5th Respondents that it is settled law that a Ground of Appeal from which no issue was formulated and argued is deemed abandoned and ought to be struck out. Reliance was placed on JAIYEOLA V. ABIOYE (2003) 4 NWLR (PART 810) 397 at 416. INT’I NIGERBUILD CONST LTD V. GIWA (2003) 13 NWLR (PART 836) 69 at 88. The 6th Respondents preliminary objection is with respect to grounds 4, 9 and 10 of the Notice and Grounds of Appeal and Issues 2, 3, 4 and 5 formulated therefrom in the Appellant’s Brief of Argument which the 6th Respondent urges the court to strike out for being in competent on the following grounds –

(1) Grounds 4, 9 and 10 of the Appellant’s Grounds of Appeal complain of misdirection but failed to quote the passage of the judgment where the error or misdirection occurred and are therefore in competent

(2) Issues 2, 3, 4 and 5 are formulated from one Ground of Appeal to wit Ground 9 and therefore incompetent

(3) Issues 2, 4 and 5 are formulated from one ground of Appeal to wit Ground 8 and are therefore incompetent.

(4) Issues 2, 4 and 5 are formulated from one ground of Appeal to wit Ground to and are therefore incompetent.

Arguments in support of his submissions are to be found at pages 3 -6 of the 6th Respondent’s Brief and are as follows – Grounds 4, 9 and 10 complain of misdirection. The passage of the judgment where the error or misdirection occurred was not quoted and so the said grounds can hardly qualify as proper grounds of Appeal. Reliance was placed on the following cases-

RINCO CONSTRUCTION CO LTD V. VEE PEE IND LTD (1995) 5 NWLR (PART 240), page 248 at page 255.

IGWE V AI CEE (1994) 8 NWLR (PART 363) page 459 at page 473 paragraph H.

BEREYIN V. GBOBO (1989) 1 NWLR (PART 97) PAGE 372 AT 379

MOMOH INTERNATIONAL LTD V. ROMAIN & SONS LTD (1993) 8 NWLR (PART 314) 746 AT 754. The 6th Respondent went on to submit that the said Grounds 4, 9 and 10 being incompetent, any issue arising from the said Grounds will also be incompetent and in the circumstance issue 2 formulated by the Appellant which arose from Grounds 4, 5, 8, 9 and 10; issue 3 formulated by the Appellant which arose from Grounds 6, 7 and 8; issue 4 formulated by the Appellant which arose from Grounds 8, 9 and 10 and issue 5 formulated by the Appellant which arose from Grounds 8, 9 and 10 are incompetent and should be struck out. Reliance was placed on BALA V BANKOLE (1986) 3 NWLR (PART 27) 141. It was canvassed for the 6th Respondent that an appeal is determined by the contents of the Notice of Appeal and the Grounds contained therein and for an appeal to be valid it must contain valid grounds of appeal and if a ground of appeal is invalid the court will decline to consider that ground. It was contended that the rule is so strictly adhered to that the argument of a valid ground with an invalid ground of appeal will render both inchoate and incompetent as the court cannot embark on a surgical operation or exercise of separating the bad from the good. Reliance was placed on BEREYIN V GBOBO (1989) 1 NWLR (PART 97) page 372 at pages 379 – 380. It was further submitted that it is settled law that a ground of appeal cannot give rise to more than one issue and where the Appellant formulates several issues from one ground of appeal the said issues will be incompetent and liable to be struck out and in the present case issues 2, 3, 4 and 5 were all formulated from Ground 9 of the Notice of Appeal and therefore incompetent.

Issues 2, 4 and 5 are further incompetent, the Appellant having formulated the three issues from Ground 8 and 10 of the Notice of Appeal. The 6th Respondent further went on to submit that if Grounds 4, 9 and 10 are incompetent, then issues 2, 3, 4 and 5 would also be incompetent and liable to be struck out and since issue 1 alone cannot upturn the judgment, issue 1 therefore will become academic and it is trite law that a court does not decide academic or hypothetical issues. Reliance was placed on BHOJWANI V. BHOJWANI (1996) 6 NWLR (PART 457) 661;

NWABOSI V. A..C.B. LTD (1995) 6 NWLR (PART 404) page 658 at 681. It was therefore urged on behalf of the 6th Respondent that the entire appeal should be struck out.

Replying to the preliminary objection of the 1st-5th Respondents that Ground 5 of the Notice and Grounds of Appeal be struck out on the ground that no issue was formulated on same the Appellant in his Reply Brief submitted that issue 2 was distilled from Ground 5 of the Notice of Appeal.

Replying to the 6th Respondent’s preliminary objection that Grounds 4, 9 and 10 of the Grounds of Appeal are incompetent because they complained of misdirection but do not quote the passage of the judgment where the error or misdirection occurred, the Appellant has submitted in his reply brief that the 6th Respondent’s argument is untenable. He submitted that the cases relied upon by the 6th Respondent namely RINCO CONST. CO LTD V. VEEPEE IND LTD (supra) IGWE V. AICE (supra) BEREYIN V. GBOGBO (supra) BALA V. BANKOLE (supra) are inapplicable to the facts of this case and that the essence of order 6 Rule 2 (2) and (3) of the Court of Appeal Rules 2007 is to inform the Respondent and the court of the particulars of the error or misdirection alleged in the grounds of appeal to enable the Respondent meet the case of the Appellant and the court to determine the nature of the error or misdirection complained of. Reliance was placed on SILENCER & EXHAUST PIPES CO LTD V. FARAH (1998) 12 NWLR (PART 579) page 624. It was further contended by the Appellant that Grounds 4, 9 and 10 gave adequate and sufficient information as to the nature of the misdirection or error in law complained of and that the said grounds have not been alleged to be vague, unintelligible or ambiguous and that a non verbatim quotation of the passage where the misdirection or error occurred does not render a ground of appeal complaining of misdirection incompetent once the particular ground contains adequate information as to the nature of the misdirection or error. Reliance was placed on OJELADE SOROYE (1998) 5 NWLR (PART 549) page 284. It was further contended that the days of undue reliance on technicalities are over. Citing BUHARI V. OBASANJO (2005) 13 NWLR (PART 941) page 1. It was further canvassed by the Appellant that having shown that Grounds 4, 9 and 10 are competent issues 2, 3, 4 and 5 are competent.

Appellant went on to say that issue 2 which deals with failure of the lower tribunal to consider Appellant’s case is distilled from ground 8; issue 3 which questions the validity of according presumptive favours to the result declared by the Returning officer inspite of contradictions manifest in Exhibit RI, absence of unit results is distilled from Grounds 6, 7 and 9; issue 4 which deals essentially with the lower tribunal abandoning the issues set out for determination in consequence of the pre-hearing session is formulated from Ground 10 while issue 5 is distilled from Grounds 4 and 5 of the Notice of Appeal. Appellant urged the Court to discountenance the preliminary objection and hear the case on the merit.

The issues formulated by the Appellant and as contained on page 4 of the Appellant’s Brief of Argument are as follows-

(1) Whether the lower tribunal was right when it held that the Appellant did not plead material facts and lead evidence on the questioned election of 28th April 2007. (Grounds 1, 2 and 3 of the Grounds of Appeal)

(2) Whether the lower tribunal was right in not evaluating all the evidence placed before her before reaching her judgment (Grounds 4, 5, 8, 9 & 10)

(3) Whether the lower tribunal was right in according presumption of authenticity to the result declared by the Returning Officer as found in FORM EC8E(I) inspite of the inconsistency manifest in exhibit R1, R2, R3 and F1 – F10 and even when no unit results were tendered. (Grounds 6, 7 & 9)

(4) Whether the lower tribunal was right in not evaluating the case put up by the Respondents/Respondents and also abandoning the issues set out for determination (Grounds 8, 9 & 10)

(5) Whether the judgment of the lower tribunal was perverse and deviated from the issues for determination as settled by the parties (Grounds 8, 9 & 10).

The Grounds of Appeal as contained in the Notice of Appeal have already been reproduced in this write up and references will only be made to them as and when they arise for discussion.

It is settled on the authorities that misdirections or errors in law must not only quote the passage where the error or misdirection occurred, it must specify the nature and give full and substantial particulars of the alleged error or misdirection. See the following –

ATUYEYE V. ASHAMU (1987) 1 NWLR (PART 49) 267 at 270; RINCO CONSTRUCTION CO. LTD V. VEE PEE IND LTD (1955) 5 NWLR (PART 240) page 248.

From a close scrutiny of the Grounds, Ground 4 of the Notice of Appeal which alleges misdirection in law does not quote the passage of the judgment where the misdirection occurred and as such the said Ground 4 and Issue 2 formulated therefrom are liable to be struck out and are hereby struck out. It is also settled on the authorities that a ground of Appeal gives rise to only one issue and no more. It is instructive at this juncture to have a look, at page 4 of the Appellant’s Brief of Argument which highlights the issues and the grounds from which they are distilled. The following are abundantly clear –

From Ground 9 of the Notice are distilled the following issues – 2, 3, 4 and 5. From Ground 8 are distilled the following issues – Issues 2, 4 and 5.

From Ground 10 are distilled the following issues – 2, 4 and 5. The said issues 2, 3, 4 and 5 are therefore incompetent and are liable to be struck out and are hereby accordingly struck out. See BALA V. BANKOLE (1986) 3 NWLR (PART 27) 141. Issue 1 alone cannot upturn the judgment. In this respect also I agree with the Respondents that it is merely academic. In the circumstance the preliminary objection succeeds. Just in case I am wrong, I’ll like to delve into the substantive matter somewhat. It is common ground between all contending parties that the election slated for the 14th April, 2007 had to be rescheduled to the 28th April 2007. The burden which is on the Appellant is to show whether the election rescheduled from the 14th April 2007 to the 28th April 2008 did not in fact take place on the 28th April 2007. As many as ten witnesses were called by the Appellant including himself. No evidence was adduced by the Appellant’s witness of what transpired on the rescheduled election date of 28th April 2007 as nine witnesses testified on what they did on the 14th April and that no election took place on the said 14th April 2007. Even the evidence of the Appellant as to what transpired on the 28th April 2007 was scanty as it was to the effect that no INEC officials turned up even though voters turned up. It is in that vein that I agree with learned counsel for the 1st – 5th Respondents that any evidence received on what took place on the 28th April 2007 will go to no issue because there are no facts in the petition impugning the election of the 28th April 2007. The tribunal was right in coming to this same conclusion. The Appeal fails and is dismissed and the Judgment of the tribunal delivered on the 3rd March 2008 is hereby affirmed.

There shall be N30,000 costs in favour of the Respondents against the Appellant.

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Other Citations: (2008)LCN/3025(CA)