Nasarawa State 2023 Governorship Tussle: Who Wins The Final Lap?

January 15, 2024 Eric Kuju 1 Comment APC, David Emmanuel Ombugadu, Election Petition, Governor Abdullahi A. Sule, PDP, Politics, Supreme Court

By Eric Kuju

Indeed, Ceteris paribus, or everything being equal, in a matter of days, the March 2023 Governorship election in Nasarawa State should be laid to rest by the Supreme Court of Nigeria.

Recall, that the Independent Electoral Commission (INEC), had on Monday, March 20, 2023, declared Engineer Abdullahi A. Sule as the elected Governor of Nasarawa State.

The election results were collated and announced in Lafia by the INEC’s Returning Officer in Nasarawa State, Prof. Ishaya Tanko.

In declaring Engineer Abdullahi Sule elected, Tanko, who is the Vice-Chancellor, University of Jos, Plateau State, averred: “Having satisfied the requirements and having received the total votes of 347,209 by the APC with the candidate, Sule Audu, is hereby returned and declared the winner of the governorship election in Nasarawa State.”

Not satisfied with the declaration, Hon Davematics David Emmanuel Ombugadu of the Peoples Democratic Party (PDP) challenged the results at the Governorship Election Tribunal.

On October 2, 2023, the Governorship Election Petition Tribunal sitting in Nasarawa State nullified the election of Governor Abdullahi Sule of the All Progressives Congress and declared PDP’s David Ombugadu as the winner of the March 18, 2023 governorship election in the state.

Delivering the judgment virtually, the Chairman of the tribunal, Justice Ezekiel Ajayi, declared Ombugadu of the PDP as the lawfully elected governor of Nasarawa State.

In the same vein, not satisfied with the Tribunal verdict, Engineer Abdullahi A. Sule headed to the Court of Appeal.

On Thursday, November 23, 2023, the Court of Appeal upturned the Tribunal verdict and declared the appellant, Engr A A Sule as the winner of the election.

Exercising his constitutional rights, having not been satisfied with the judgment of the Court of Appeal, Hon Davematics Ombugadu approached the Supreme Court.

This is the final lap. At this moment, all parties concerned are sitting on tenterhooks in a state of nervous anticipation of the final verdict.

In their Brief of Argument SC/CV/1213/2023 before the Supreme Court, Emmanuel David Ombugadu and the Peoples Democratic Party (PDP) formulated five issues for the Supreme Court to determine and void the victory of Governor Abdullahi Sule

The five issues are:

Whether the court below was right when it held that the Trial Tribunal dismissed the objections of the 1^st Respondent before it without determining same and proceeded to nullify the entire judgment of the Trial Tribunal on that basis (Grounds 1,2 & 3).
Whether owing to the peculiar facts and circumstances of this case, the court below rightly struck out and expunged the evidence of the subpoenaed witnesses; PW5, PW6, PW7, PW8, PW12, PW13, PW20 and PW21 and the documents produced tendered through them for failure to frontload their witness statements on oath. (Grounds 4,5,6,7 & 8).
Whether or not the court below was right when it held that the appellants failed to prove overvoting in the four polling units which led to the setting aside of the trial tribunal’s decision deducting 1,868 votes as unlawfully credited to the 1st respondent (Grounds 9, 10, 11 & 12)
Whether the court below was right when their lordships found that the appellants did not give legal evidence and held that the trial tribunal was wrong to have recomputed the votes in the way it did in arriving at its conclusion that the appellants won the majority of lawful votes cast at the election. (ground 14)
Did the court below rightly allow the appeal before it and set aside the judgment and orders of the trial tribunal. (Grounds 13 & 15).

The Counsel to Hon. David Ombugadu and the Peoples Democratic Party (PDP) presented the following legal arguments:

LEGAL ARGUMENTS IN SUPPORT OF ISSUE ONE.

“My Noble Lords, it is our respectful submission that contrary to findings of the court below at pages 4091-4093 of the Record of Appeal Volume 6, the Trial Tribunal did not summarily dismiss the objections of the 1″ Respondent herein without first considering the propriety or otherwise of same, hence the Court below wrongly nullified the judgment of the Trial Tribunal without just cause.

“To properly demonstrate the point that the Court below wrongly found that the 1^st Respondent’s right to fair hearing was breached in the way and manner the objection filed by the 1^st Respondent challenging essentially the reliefs of the Appellants at the Trial Tribunal was resolved, we invite your Lordships to pages 3431-3437 of Volume 5 of the Record of Appeal which clearly evidences the fact that the I” Respondent’s objection was indeed considered by the Tribunal and judgmental decision reached on the propriety of same. Aware of the need for brevity, may we respectfully reproduce the relevant portion of that decision of the Tribunal specifically at page 3437 of the Record of Appeal Volume 5 thus:

“Having listened to the legal juggernauts in the matter and read the processes filed in respect of the case, I am of the considered view that what the 2nd Respondent’s invited this court to do is premature. The law is settled that it is not proper for a court to make pronouncement in the course of interlocutory proceedings on issues capable of pre-judging the substantive issues before a court of (sic) tribunal. See BUREMUT AKANDE (2017) NWLR Pt. 1565 Page 74 at 98 Para C Per M.H Muhammed. Assuming without conceding that this Tribunal could make pronouncement, an election Tribunal has a duty to do even handed justice between the parties devoid of all necessary technicalities the Tribunal should aim at doing substantial justice to dig out the truth of the matter SEE ISHIAKU VS KANTIOK (2012) 7NWLR (PT 1300) 457”

“My Noble Lords, we respectfully submit that the above findings of the Trial Tribunal was unassailable and consistent with the state of our jurisprudence for the following reasons:-

Firstly, the issue with respect of propriety of reliefs sought in the petition which was the substratum of the 1^st Respondent’s motion/objection at the trial Tribunal masqueraded as a jurisdictional issue, which the court below wrongly found that same was not considered is not preliminary issue per se, but a substantive issue. The court in considering the propriety of the reliefs must holistically construe the pleadings along with reliefs before arriving at the decision as to the competence thereof. See NGIGE v. OBI (2006) 14 NWLR (Pt 999) 1 at 142.
The reliefs set out by the Appellants as Petitioners before the Trial Tribunal were declaratory in nature, which cannot be considered without adducing evidence. It is an issue that condescends to the merits of the Petition after the evaluation of evidence. See the decision in MOHAMMED WAMAKKO (2017) LPELR- 422667 (SC) Pg 21-22. Therefore, the Tribunal’s decision declining to accede to the objection without the consideration of the evidence based on the facts pleaded is faultless and the decision of the Court below which found otherwise was perverse. We commend the decision in SALISU MOBOLAJI (2016) 15 NWLR Pt 1535 Pg 242 at 267 the Supreme Court per Ogunbiyi JSC. In SOTUMINU v. OCEAN STEAMSHIP (NIG) LTD & ORS (1992) LPELR-3106(SC)’ wherein this Court held the same position that was taken by the Trial Tribunal as follows:

“I ought not to make any comments on the merits or otherwise of the case which may prejudice the hearing of the appeal.”

The rationale behind such positions in our jurisprudence is straightforward to the extent that once an objection is anchored on the live issues before the Court, determining same will render the merit of the case nugatory and academic, and this was the case of the 1″ Respondent herein before the Trial Tribunal as can be gleaned from pages 3431-3435 of Volume 5 of the Record of Appeal. The Court below was therefore in error with the greatest respect to have set aside the judgment on that basis.

Secondly, this is an election litigation with significant public interest, the duty of the court in that regard is to decide the rights and liabilities of the parties based on the facts pleaded and the evidence in a bid to do substantial justice in order to uphold the mandate of the electorate. That is the underlining objective of the court in a constitutional democracy. This court has held in a plethora of decisions that the era of technical justice is done and over with. That was the attitude of the Trial Tribunal in its consideration of all the objections that were purely legalistic and those decisions were considered/judgemental decisions in the eyes of the law under Section 318 of the Constitution.

We respectfully draw your Lordships attention to page 3465 of the record of Appeal volume 5, wherein the trial Tribunal found merit in the Appellants” objection that the 1^st and 3^rd Respondents at the Tribunal indeed abandoned their pleadings, albeit proceeded to consider the petition on the merit which underscores the underlining objective of a tribunal in an election dispute.
Furthermore, we invite your Lordships to page 3471 volume 5 of the record of Appeal wherein the trial Tribunal found as of law that the wrong configuration of the parties by the 1 and 3 Respondents at the Tribunal in their respective replies was fatal to their defense. In spite of that, proceeded that it will consider the petitions on the merit. The said portion from the judgement is reproduced below;

“The question is what is the effect of this on the case put forward by the 1st & 2nd Respondents to the petition of the petitioners.

The law is that for court to be competent to exercise jurisdiction over a matter, it is necessary condition that proper parties be identified before the court, otherwise the court will be lacking in competence to look and give effect to any process where the improper parties are on the face of it. See ADENIRAN VS. OLUSOKAN II (2019) 8 NWLR PT. 1673 page 98 at 118 per PETER ODILI JSC (2) NWAKA VS. OMUNEZE-MADU (2019) 1 NWLR 1 PT 1672 page 422 at 437 para F per BAGE JSC.

However, this Tribunal will still go ahead and decide this petition on its merit by not giving room to any technicalities.”

“Significantly, the same issues raised by the 1st Respondent in his said motion were also raised and argued in his final written address as a substantive issue for determination and the Tribunal further considered and determined same in the body of the Judgment. We refer Your Lordships to page 99 of the Tribunal’s Judgment at page 3511 of volume 5 of the Record where the first jurisdictional issue for determination as presented by the 1″ Respondent herein (2nd Respondent at the trial) was set out thus: “Having regard to the sacrosanct nature of the reliefs presented by any Petitioner(s) in an election petition, coupled with the binding nature of such reliefs on the jurisdiction of the adjudicating Tribunal or court, whether the honourable Tribunal possesses the jurisdictional competence to countenance the reliefs presented by the Petitioners in paragraph 104 of the Petition?”. This first issue for determination was in substance the kernel of the 1^st Respondent’s objections in his motion.

“We now refer Your Lordships to pages 100 to 102 of the Tribunal’s Judgment at pages 3512-3514 of vol. 5 of the Record where the Tribunal determined the said jurisdictional issues and resolved same against the 1″ Respondent herein (2nd Respondent at the trial). In determining the jurisdictional challenge, the trial Tribunal found that the reliefs sought by the Appellants as Petitioners were competent and capable of resolving the issues. The trial Tribunal particularly held thus at pages 101 of its Judgment at pages 3513 of vol. 5 of the Record; “The law is that any reliefs sought must be such that can resolve the issues joined between the parties as well as done in this case. (sic) The court does not sacrifice substantial justice on the altar of technicalities. See. UMANA v. ATTAH (2006) 2 EPR 594 at pages 630-631.” (Emphasis ours). The Tribunal further held thus at page 102 of the Judgment contained at page 3514 of vol. 5 of the Record;” In the light of the above this Tribunal is of the considered view that this Tribunal has jurisdictional competence to adjudicate on this case.

“Having demonstrated above that the issues in the 1st Respondent’s motion were even already subsumed in the jurisdictional issue determined by the trial Tribunal in the substantive Judgment as the first issue for determination, it is therefore our contention that the Court below was in grave error when it nullified the Tribunal’s Judgment on the basis of alleged failure of the Tribunal to consider the same issues in its determination of the 1″ Respondent’s motion (which failure is not conceded by the Appellants). We say so because the law as reiterated by this Court per Mary Ukaego Peter-Odili, JSC in APC & Ors v Anambra State INEC & Ors (2022) LPELR-57828 (SC) Pp 43-45 is that when any issue left undetermined has been subsumed in other issues already determined by the Court, the Court has no need or duty to go back to any undetermined issue. We also call in aid the decision in General Cotton Mill Ltd v Travellers Palace Hotel (2018) LPELR-46311 (SC) where this Court held as follows:

“Again, to be said is that some of the areas the Cross-appellant is hanging to invoke the principle that all issues raised in a Court must be considered, failure to do so would produce fatal consequences on the suit or appeal. That is the general rule but that comes with a rider to the effect that where an issue or issues are subsumed in the major issue then that takes care of the need to independently or distinctively deal with the said issue or issues. The fall out situation where the non- consideration of the said question raised and not attended is that the issue having dovetailed into the main issues considered and decided upon the Court a miscarriage of justice cannot be said to have taken place. Per Mary Ukaego Peter-Odili, JSC (Pp 63-64 Paras D-E)

“My Noble Lords, interestingly the Court below also rightly found that the reliefs which the 1st Respondent was challenging were grantable in law when it considered same on the merit. This was the substance of the I” Respondent’s motion in issue We respectfully invite your Lordships to page 4121 of the Record of Appeal Volume 6 wherein the Court below held thus:

“the contention of the Appellant herein is that the 1st and 2nd Respondents did not seek any relief to set aside the election and as such, the tribunal does not have jurisidiction to make an order the certificate of return be withdrawn. It is my considered opinion that the above argument of the Appellant is misconceived. The same is not supported by Section 72 of the Electoral Act.”

“Having come to this unassailable conclusion, it is therefore incomprehensible that the court below with the greatest respect will nullify the entire decision of the Trial Tribunal for failing to accede to the same objection under the guise that same was not considered. We respectfully beseech your Lordships with supplication to interfere with this findings.

“It is our further submission that the grave consequences of declaring the entire decision a nullity presupposes that nothing at all was done by the Trial Tribunal with respect to the 1^st Respondent’s motion, this is not the position herein. For this proposition, we commend the decision of this Court in the case of YAR’ADUA v. YANDOMA (2015) 4 NWLR Pt. 1448 Pg 123 at 177 paragraph E-F thus:

“a nullity has been defined as void act, an act which has no legal consequence. It is as if nothing happened.”

“To further buttress the point that this was not the case herein, we invite your Lordships to page 4090 of volume 6 of the Record of Appeal held as follows:

“From the record of the court, specifically at pages 3431-3438, the Tribunal highlighted the reliefs sought by the Appellant and dismissed the same for being capable of pre-judging the case or/and being filled with technicalities….”(Underlined is ours for emphasis)

“The above excerpt is an acknowledgment by the Court below that the Trial Tribunal indeed considered the 1st Respondent’s motion and gave its reason for its conclusion dismissing same

“The tribunal therefore fulfilled its judicial function by giving the reasons it thought the motion should be dismissed. For context, may we commend the decision of this Honourable Court in AGBANELO v. UBN LTD (2000) LPELR-234 (SC) wherein it was stated as follows:

“It is an elementary and essential ingredient of the judicial function that reasons are to be given for decisions. It is the more important where appeals lie from the decisions. In any case the reasons for decisions enable the determination on appeal whether the decision was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If judgments were to be delivered without supporting reasons, it will be an invitation to arbitrariness, a rule of merely tossing the coin and likelihood to result in juridical anarchy. However, a judgment will not be set aside merely because the reasons given were bad if the judgment itself is right.”(Underlined is ours for emphasis)

“My Noble Lords, to draw premise from the above decision, assuming without conceding that the reason given by the Trial Tribunal for dismissing the said motion was not substantial and/or wrong, the Court below did not arrive at a different finding from what the Trial Tribunal reached. It did not grant the prayers contained in the said motion to the extent dismissing the Petition having found that the reliefs sought by the Appellants in the Petition are grantable. This only shows that the finding of the Trial Tribunal on the propriety or otherwise of the motion is right. The Court below was therefore in error when it set aside the decision of the Trial Tribunal and without arriving at a different finding. The above contention is premised on the fact that a decision cannot be set aside merely because the reasons for the decision were wrong when the decision itself is correct in law. We humbly refer your Lordships to the decision of Mainstreet Bank Capital Ltd vs Nigeria Reinsurance Corporation Plc (2018) LPELR44905 (SC), Per Kekere- Ekun, JSC, P. 27-28, Paras E-B) thus

“The fact that in reaching its conclusion the Court relied on some wrong reasons is not a ground for setting aside the decision. For it is settled that where a decision given by a Court below is ultimately correct, it is immaterial whether the reasons given are right or wrong. What an appellate Court is concerned with is the correctness of the decision.”

“More fundamentally, assuming without conceding that the Trial Tribunal did not give the reasons for dismissing the motion under reference, we contend that the two prevalent reasons upon which the Court below would have set aside the decision of the Trial Tribunal do not exist in this instant case. i.e, where the right of fair hearing of the 1^st Respondent was breached and where the decision occasioned a miscarriage of justice.

“In this instant case, neither the lower Court’s decision nor the 1st Respondent have demonstrated how the said decision of the Trial Tribunal that dismissed the motion under reference occasioned a miscarriage of justice nor have they demonstrated how the said decision breached their right to a fair hearing. The law is that fair hearing of lack thereof is not an expression of mere rhetoric or empty verbalism. It cannot be construed outside the facts, and a party alleging the breach must show clearly that the said right is violated or breached. It is not enough for a party alleging such a breach to merely wave the banner of fair hearing and expect the court to jump to attention. The facts of his case must show that the said right was indeed violated.

“The Trial Tribunal did justice as demanded, heard the motion of the 1st Respondent herein on the merit, and decided that it ought to be dismissed without further ado. There was therefore no reason as to why the Court below upturned the decision of the Trial Tribunal in the absence of these underlying factors mentioned above. For this proposition, we commend the decision of this Court in Emmanuel Olamide Larmie v. Data Processing Maintenance & Services (2005) 12 S.C.N.J 297 at 317 wherein it was stated as follows:

“It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the Court, after examination of the entire case, including the evidence is of the opinion that it is reasonably probable that a result more favourable to the Appellant would have been reached in the absence of the error. A miscarriage of justice therefore means a departure from the rules which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all.”

“My Lords, the above decisions of this Honourable Court clearly describe the factors that will warrant the setting aside of a decision, in this instant case, the complaint of the 1″ Respondent before the Court below does not fall within that context.

“It is further submitted that the decision of this Court in OYETOLA v INEC (Supra) relied upon by the Court below in nullifying the entire decision of the Trial Tribunal is not an applicable precedent as the fact of this instant case and that in OYETOLA v. INEC (Supra) are worlds apart. A cursory look at the decision in OYETOLA v. INEC (Supra) will reveal that the Trial Tribunal in that case adjourned the rulings to be delivered with the final Judgment, but in its final consideration of the Petition on its merits glossed over same without mentioning the objections. This court rightly affirmed the decision of the Court below in PDP v. Oyetola & Ors (2023) LPELR-60291 (CA) at 43-45, wherein it held thus:

“In this case, the objections were reserved to be determined at the final stage of judgment but no ruling so defined was delivered. The result is that the Appellant was denied fair hearing…

“The scenario herein as earlier demonstrated is radically different, we therefore urge your Lordships with the greatest respect to find the clear distinction between this case and that of the OYETOLA v. INEC (Supra) heavily relied upon by the Court below.

“Premised on the foregoing, we respectfully urge this Honourable Court to resolve this issue in favor of the Appellants and against the Respondents.”

LEGAL ARGUMENTS IN SUPPORT OF ISSUE TWO

“My Noble Lords, conceivably, the above issue for consideration is somewhat chaotic in our present jurisprudence as it relates to the nature of a subpeoned witness ordered by the Tribunal to testify in an election petition.

“It is our respectful submission that the Court below was in grave error when it wrongly struck out and expunged the entire evidence of the subpoenaed witnesses summoned by the Trial Tribunal at the instance of the Appellants, together with the documents tendered through them for not being frontloaded within 21 days of filing the petition as contemplated in Paragraph 4(5) of the First Schedule to the Electoral Act, 2022

“At page 4100 of volume 6 of the Record of Appeal, the court below held thus:

“The 1st and 2nd Respondents have argued that Paragraph 41 of the 1^st Schedule to the Electoral Act does not apply to official or subpoenaed witness; the position of the law is that whether the witnesses which a party intends to call are ordinary or expert witnesses; and whether they are willing or subpoenaed witnesses, their witness depositions must be filed along with the petition or reply to be competent to testify as there is no dichotomy between ordinary and official/subpoena witnesses under the Electoral Act, 2022.”

“We submit that contrary to the findings of the Court below there is a clear dichotomy between ordinary witnesses within the control of the Petitioner whose statements must be frontloaded and subpoenaed witness summoned by the court or tribunal.

“It is our respectful submission, that strictly speaking subpoenaed witnesses are witnesses of court. My Noble Lords, owing to the dearth of case laws from this court on this vexed issue, recourse will be made by way of persuasive authority to the decisions of the court below which represent good and practical law. In ABBA KABIR YUSUF v. APC & ORS (Unreported) in CA/KN/EPT/EP/GOV/KAN/05/2023 delivered on the 24th day of August, 2023 Ogbuinya JCA held aptly at page 19 thus:

“Paragraph 42(1) of the First Schedule bequests to the Tribunal the power to summon a witness. By virtue of the provision, a tribunal can proprio vigore to summon a witness. In practice, a tribunal exercises this authority on the footing and prompting of an application of a party-usually a petitioner. Thus, a subpoenaed witness is, in the sight of the law, a witness of court or tribunal. Paragraph 41 of the First Schedule donates wide powers to the tribunal to direct or order the manner to give evidence either by statement on oath, information or belief.“

“My Noble Lords, it is our submission that the law as aptly reiterated in the dicta cited above cannot be faulted. It is consistent with global best practice. We submit that the subpoenaed witnesses are not ordinary witnesses within the letters and spirit of paragraph 4 (5) of the First Schedule to the Electoral Act, 2022 but are well within the realm of official witnesses which can only be brought to court vide an order.

“For clarity, PWS, PW6, PW7, PW8, PW20, AND PW21 are all official witnesses that are not within the control of the Appellants herein, and there is no way that the Petitioners cum Appellants before this Court could have frontloaded their witness deposition within the limited 21 days of filing the Petition. PW12 and PW13 on the other hand are officials of other political parties who are ordinarily not willing witnesses and were not within the control of the Appellants.

“My Noble Lords, a distinction must be drawn between an ordinary witness and an official/adverse witness. Whilst the former is within the control of the Petitioners same cannot be said about the latter which is an official/adverse witness. In this instant case, the Tribunal rightly exercised his discretion under Paragraph 41 of the 1 Schedule to the Electoral Act in directing the Appellants to lead the witnesses orally owing to the nature of unwilling witnesses who are officials of an adverse party in the proceedings. It was therefore impractical and indeed preposterous for the Appellants to have frontloaded their witness statement of these official witnesses on oath within 21 days from the declaration.

“In ABBA KABIR YUSUF v. APC & ORS (Supra) at page 19-20 the Court of Appeal aptly held thus:

“In effect, by the courtesy of the first Schedule, a tribunal wields enormous power vis-a-vis the nature/form of evidence in election petition proceedings.

“Flowing from the catalogued statutory position of a subpoenaed witness, as a witness of a court, it will be incongruous and preposterous to hold that his statement on oath must willy-nilly accompany a petition.

“As a matter of fact, it will envince natural and human impossibility for such a court witness to file his deposition alongside a petition. The reason is simple. A subpoenaed witness appears in court on the invitation of a court on the application of a party. A subpoenaed cannot suo motu present himself before a court. Note bene, the legal maxim – less non cogit ad impossibillia, the law does not command the impossible, still holds sway in the hemisphere of our adjectival law, see Lasun v owoyemi (2009) 16 NWLR (Pt. 1168) 513. To insist that the deposition of a subpoenaed witness must accompany a petition will make mincemeat of this legal maxim which is, firmly, propagated in the corpus juris of our electoral jurisprudence.”

“It is our submission that this Court has equally recognized the distinction between official witnesses and ordinary witnesses in SC/CV/935/2023 BETWEEN Abubakar Atiku & Anor. v. INEC & 2 Ors. wherein Uwani Musa Abba Aji JSC in My Lords contributory decision wherein it was held thus:

“The Appellants having failed to include the names of PW12, PW13, PW14, PW15, PW16, PW17, PW18, PW21, PW23, PW24, PW25, PW26 and PW27, who are not official or adverse witnesses cannot be allowed to do so. The time for filing witness statements on oath having, elapsed, they are also foreclosed.” (underlining mine).

“In the above decision, this Court held that the Appellants failed to frontload the witness deposition of the subpoenaed witnesses who are not official or adverse hence they cannot be allowed to testify. The necessary implication of the finding thereof is that if the said witnesses were official or adverse, they would have been allowed to testify in that regard owing to the fact that it is impractical to frontload their witness statements to accompany the Petition. In applying the same position to this instant case, it is not in contention that all the witnesses except PW12 and PW13 who are from opposition parties, are official and adverse witnesses from the INEC, hence their witness depositions cannot be willingly frontloaded at the point of filing the petition.

“My Noble Lords, the law is settled that this Court is bound by its previous decision when the facts are on all fours, and for this, we commend the case of UBA PLC v. TRIEDENT CONSULTING LTD (2023) LPELR-60643(SC) wherein it was stated as follows:

“This Court is bound by precedent when the facts of the previous decisions have similar material facts with the case before the Court.”

“More fundamentally, the decision of the Penultimate Court in CA/PEPC/03/2023 between Mr. Peter Gregory Obi & Anor v. INEC & Ors. which has been affirmed by this Court drew a proper distinction when it struck out the witness depositions of the subpoenaed witnesses to the extent that they were not subpoenaed as adverse or official witnesses, some were established to be card carrying members of the Petitioners. In this case, all the subpoenaed witness were summoned in their official capacity

“The Court below therefore fell into grave error when it blanketly followed the arguments of the 1st Respondent on the applicability of the decision in SC/CV/935/2023 BETWEEN Abubakar Atiku & Anor. v. INEC & 2 Ors (Supra) which railroaded it into expunging the decision. More striking is the finding of the Court below at page 4105 of volume 6 of the Record of Appeal wherein it held thus:

“INEC by any stretch of understanding and imagination is not an adverse party (witness). In the circumstances of this case, INEC is an umpire, a referee, a supervisor, a Judge, an adjudicator and as it name goes ‘INDEPENDENT. This is what the law created INEC to be, if INEC deviates from its legal identity, that would not be the intention or making of the law but the corruption and pollution of the polity.”

“It is our submission, with the greatest respect that the Court below misapprehended the arguments of the Appellants to the extent that the INEC is an adverse party to any political party. It was never our contention that INEC is an adverse party to any political party, our contention is borne out of the fact that INEC is an adverse party in proceedings owing to its role as statutory Respondent who made the return subject matter of the litigation evidenced from the state of the pleadings.

“INEC must appear to either deny or confirm allegations contained in the Petition. In this instant case, the 3rd Respondent was vehemently denying the Allegations contained in the Petition. In this regard, it is impracticable to state that INEC is not an adverse party when there are allegations against her that she must defend one way or another. In that pursuit, we submit that the Court below was wrong to have struck out the evidence of the Appellants’ subpoenaed witnesses as they are official/adverse witnesses and we urge Your Lordships to so hold.

“We equally submit that the issuance of subpoena is regulated by the Evidence Act, 2011, which applies to and binds all courts of law, including the Court below without distinction whether or not such courts are election courts. See Mekwunye vs. Carnation Registrars Ltd. (2021) 15 NWLR (Pt. 1798) 1 at 44 CA; Lasun vs. Awoyemi, supra; Dickson vs. Sylva, supra, at 192 SC,

“To further advance this point, we commend to your Lordships the reasoning in Omidiran v. Etteh (2011) 2 NWLR (Pt. 1232) at 501D CA, Per Kekere-Ekun, JCA (as he then was, now JSC), where His Lordship held with respect to a subpoenaed witness thus: “It is therefore not envisaged that the statement of such a witness would accompany the petition. No procedure has yet been prescribed for the manner in which a subpoenaed witness should testify in election petitions.”

“The election procedural rules considered in Omidiran vs. Etteh, supra are in Pari material with the 1st Schedule to the Electoral Act, 2022.

“The law is settled that a Tribunal who compels the attendance of a witness by way of subpoena has a corresponding duty to entertain the witness’ testimony. We commend the decision of this Court in the case of BASHIR & ANOR. KURDULA & 4 ORS (2019) LPELR-48473(CA) Page 20-40 Para F-H.

“It is worthy of note that none of the Respondents applied to set aside the subpoenas issued by the Tribunal and being orders of that Court, were still binding on it and all the parties. This was the decision of Agim, JCA (as he then was, now JSC) in the case of Iloka vs. Edokwe (2016) LPELR-41027 (CA) at 20-21. We also submit that a subpoena is an order of court, which remains binding and subsisting until it is expressly set aside for valid reasons. See Obi-Odu vs. Duke (2006) 1 NWLR (Pt. 961) 375 at 400-401 CA.

“Consequently, the court below, without first setting aside the orders of the Tribunal and without such orders being set aside on appeal, lacks the jurisdiction to expunge the evidence of the subpoenaed witnesses. The law is well settled that a court order is binding on all parties and the court itself, until set aside. See Okeke vs. Uwaechina (2022) 10 NWLR (Pt. 1837) 173 at 193A-B SC. The subpoenas having not been set aside, remained binding on the Tribunal; hence the Court below was in error of law when it set aside the decision of the Trial Court which rightly admitted the evidence and accordingly acted on them in acceding to the Petition at the Trial Tribunal.

“We respectfully commend the decision of the Court below as persuasive authority in Ibrahim vs. Ogunleye (2012) 1 NWLR (Pt. 1282) 489 at 510 CA, it was held that having issued the subpoena, it was “illogical” for the trial Tribunal to rely on the Practice Directions to refuse the witness from being sworn to testify.

“In Amachree vs. INEC (2019) LPELR-48677 (CA), the Court held inter alia thus:

“…However having regard to the facts and circumstances of this case, the tribunal unfairly trivialized and slaughtered Justice on the altar of legal technicalities by refusing a subpoenaed official of the Independent National Electoral Commission (INEC) to be sworn in and therefore, to give testimony in the election petition… The tribunal was satisfied on the application of the Appellant that the subpoena be issued and having issued same, the tribunal breached the Appellant’s right to fair hearing by not allowing the witness on its subpoena to give sworn evidence on behalf of the Appellant. The tribunal did not issue the subpoena in error. It cannot approbate and reprobate.” (Underlining ours for emphasis]

“More so, it is on record that most of the said Exhibits that were expunged by the Court below were tendered from the bar by counsel and by virtue of Paragraph 46(4) of the 1^st Schedule to the Electoral Act and 137 of the Electoral Act, the Trial Tribunal rightly evaluated them and gave effect to that upon its findings that the case of the Petitioners cum Appellants was documentary.

“It is our submission that your Lordship can make an exception of this case to the extent that the witnesses which were subpoenaed are official witness. There a purposive/progressive interpretation must be given to the Statutory interpretation of Paragraph 4(5) of the 1^st Schedule to the Electoral Act so as not to lead to unreasonableness or absurdity. We Commend the leading text of Bennion on Statutory Interpretation by Francis Bennion (5th Edition) (Pp. 943-945) on the effect of progressive and purposeful interpretation of statute.

“More so, Your Lordships have the unfettered vires to depart from the literal rule of interpretation to meet the justice of this case as presently constituted. For this, we commend the case of Savannah Bank Nig Ltd v. Ajilo (1989) 1 NWLR Pt. 97(p. 305;Para C-D) wherein this court stated as follows:

“A statute should not be given a construction that will defeat its purpose”

“Also worthy of note is the fact that where there is an alternative interpretation to meet the reasonableness of the cause in tandem with the intention of the legislature, Your Lordships are enjoined to take that direction and this was succinctly captured, in Savannah Bank Nig Ltd v. Ajilo (Supra) at page 306 as follows:

“Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.”

“Conclusively, may we commend the case of Canada Sugar Refining Company v. R(1898) AC 735 at 741 wherein it was held as follows:
“Every clause of a statute is to be construed with reference to the context and other clauses of the Act so as far as possible to make consistent enactment of the whole statute.” We submit that the context of paragraph 4(5) of the first schedule does not admit of subpoena witnesses within the context of this case.

“Premised on the foregoing, we respectfully urge Your Lordships with supplication, to resolve this issue in favour of the Appellants and against the Respondents.”

LEGAL ARGUMENTS IN SUPPORT OF ISSUE THREE.

“My Noble Lords, it is our contention under this issue that the court below wrongly held that the Appellants herein failed to prove the allegations of over-voting in the four identfied polling units under reference. The rationale for our contention is premised on the fact that the reason given by the Court below for rejecting the unimpeached evidence tendered by the Appellants at the trial Tribunal is not tenable in law.

“For brevity, may we invite Your Lordships to page 4117 of volume 6 of the Record of Appeal wherein the Court below held albeit erroneously that the Appellants herein failed to demonstrate the BVAS machines (Hardware) before the Trial Tribunal. If My Lords peruse the said page of the Record of Appeal, my Lords will find that the Court below confirmed the production of the BVAS machines by the Appellants herein before the Trial Tribunal but only decided to not act on same for a purported failure of demonstration and nothing more.

“In contradistinction to the position taken by the Court below, we contend that the Appellants duly complied with the condition precedent laid down by this Honourable Court to prove over-voting as expounded in the case of Oyetola v. INEC & Ors. (2023) 11 NWLR(Pt 1894) 125 at 168 paras E-F, 170 paras D-F, 171 paras A-B and 175 Paras E-H. In the said decision, this court itemized what must be tendered by a Petitioner to prove over-voting, to wit: a) BVAS machines or certificates of their record of accredited voters in the BVAS machines, b) Register of Voters, and c) FORM EC8As frota the polling units under contention.

“What begs the question is whether the Petitioners cum Appellants herein fulfilled the condition precedent in proving over-voting by tendering all that was itemized in the afore- referenced decision of this Honourable Court? We are inclined to answer in the affirmative as this can be gleaned from the Record before this Honourable Court as well as the absence of any contrary contention in that regard from the Respondents. It therefore goes without saying that the Appellants tendered several documents to prove same. In proving overvoting in Ihamkpe (B) polling unit, the Appellants tendered the Form EC8A as Exhibit TOT2, BVAS machine as Exhibit BV198, BVAS accreditation report/screenshot printouts as Exhibit SPO198 and voter’s register as Exhibit TOT3. In proving overvoting in Ningo/Bohar Sarki polling unit, the Appellants tendered the Form EC8A as Exhibit AKW, BVAS machine as Exhibit BV200, BVAS accreditation report/screenshot printouts as Exhibit SPO200. In proving overvoting in Kofar Magaji Gari Angwan Makama polling unit, the Appellants tendered the Form EC8A as Exhibit NEI, BVAS machine as Exhibit BV199, BVAS accreditation report/screenshot printouts as Exhibit SPO199 and voter’s register as Exhibit NE3. In proving overvoting in Gadabuke polling unit, the Appellants tendered Form EC8A as Exhibit TOTI, BVAS machine as Exhibit BV196, BVAS accreditation report/screenshot printouts as Exhibit SPO196 and voter’s register as Exhibit TOT3.

“The contention of the 1^st Respondent which railroaded the Court below into this erroneous findings was that the BVAS Machines were not demonstrated in open court hence making it fallen short of the required proof. This contention with respect is misconceived owing to the fact that the Appellants duly tendered the record of accreditation as obtained from the BVAS Machine in the form of Certifed True Copy. No contrary evidence representing record of accreditation was tendered by the Respondents. The Appellants equally tendered the screenshots of the BVAS machines bearing the record of the number of accredited voters in the polling units under contention. The said screenshots of the BVAS machines were duly certified by INEC as per Section 258 of the Evidence Act, duly pleaded, and were accordingly admissible.

“More fundamentally, by the innovative provision of Section 84(b) of the Evidence Amendment Act, 2023 it obviates the need for the Appellants to further demonstrate the contents of the BVAS machines when the certified True Copies of the record of accreditation otherwise known as BVAS report was tendered in evidence. Section 84B of the Evidence (Amendment) Aet 2023 provides as follows:

“Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media or cloud computing or database produced by a computer shall be deemed to also be a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceeding, without further proof or production of the original, as evidence or any contents of the original or of any fact stated in it of which direct evidence would be admissible.”

“This provision clearly settles the hue and cry of the Appellants’ alleged failure to demonstrate the BVAS Machine in open court. The contention that the Trial Tribunal could not have evaluated the evidence in the absence of the BVAS machine before reaching its findings and conclusion on over-voting, is perverse.

“My Noble Lords, the documents before the Tribunal speaks for themselves, clearly – evidencing the fact that number of accredited voters were less than the number of votes recorded for the parties in the four isolated polling units thereby making the votes recorded therein as unlawful votes which were rightly vitiated by the Trial Tribunal.

“Moreover, the essence of tendering the BVAS machines ab initio is to show the record of accreditation in the four polling units under reference, and that is exactly what the duly certified screenshots of the BVAS screenshots depict. A cursory glance at the said screenshots will ex-facie reveal the number of accredited voters, there was therefore no need to demonstrate the content of the BVAS machines to the Trial Tribunal. This is more so as there were no different versions of the BVAS accreditation report before the Tribunal.

“As a way to wind up our contention under this issue, may we commend the afore-referenced decision of this Honourable Court in Oyetola v. INEC & Ors. (SUPRA) wherein it was stated as follows:

“As it is, the appellants did not produce originals or certified true copies of INEC documents, to wit, BVAS machines or certificates of their record issued by INEC from the examination of the record of accredited voters in the BVAS machines, Register of Voters and Form ECSA for each of the 744 polling units that sufficiently disclose the noncompliance they alleged in their petition.” (Underlined is ours for emphasis)

“A detailed look at the underlined portion would reveal that the tendering of the BVAS machines was succeeded by an option to tender the certificates of their records emanating from the examination of the BVAS machines, and that is exactly what the Appellants have done in the circumstance by tendering screenshots of the BVAS reports as envisaged by this Court in the case under reference.

“The use of the word “OR” by this Court connotes an option to the extent that either the original which is the BVAS machine or the certificate which is the duplicate suffices. For the avoidance of doubt, where the word “OR” is used in law it connotes an option to do something else in the absence of another. For this proposition, may we commend the case of APC & ORS v. ANAMBRA STATE INEC & ORS (2022) LPELR-57828(SC) wherein it was stated as follows:

“The said word “or” is a disjunctive particle used to express an alternative. When appearing in legislation it is disjunctive and not conjunctive. The use is to separate and give alternatives.”

“It is therefore evident that the Appellants tendered the alternative to the BVAS machines apart from the fact that it also tendered the BVAS machines in hardware to prove the glaring over-voting on the face of the FORM EC8As.

“In that pursuit, we submit that the Appellants rightly proved over-voting in the said four polling units and the Court below was wrong to have held otherwise. Accordingly, we humbly urge Your Lordships to resolve this issue in favor of the Appellants and against the Respondents.”

LEGALARGUMENTS IN SUPPORT OF ISSUE FOUR

“My Noble Lords, we contend that the Court below was wrong when it held that the Appellants did not give legal evidence and that the Trial Tribunal was wrong to have recomputed the votes in the way it did.

“To address this issue, It is apt to briefly reiterate that the Appellants’ case premised on the lone ground that the 1st Respondent was not elected by a majority of lawful votes cast which was principally anchored on the improper entries of results duly declared at the polling units from FORM EC8As to EC8Bs and in some cases outright cancellation by the collation officer when he clearly lacked the vires to so do. We commend your Lordships to the case of AGAGU vs MIMIKO (2009) 7NWLR PT 1140) 342 at 432 CA where the Court held that “It is settled that the polling booth results as set down in form EC8A is the primary evidence of votes cast in an election.”

“Furthermore, in successfully proving this allegation, the Appellants tendered the certified true copies of both the FORM EC8As and FORM EC8Bs in proving the said allegation. In proving the improper collation in Azara ward, the Appellants tendered form EC8As as Exhibit 1 – 31, and tendered Exhibit 32 as Form EC8B. In proving the improper collation in Kanje Abuni ward, the Appellants tendered form EC8As as Exhibit A1-A15, and tendered Form EC8B as Exhibit A16. In proving the improper collation in Gayam ward, the Appellants tendered form EC8As as Exhibit B1-B58, and tendered form EC8B as Exhibit B59. In proving the improper collation in Chiroma ward, the Appellants tendered form EC8As as Exhibit 109-208, and tendered form EC8B as Exhibit 209. It was on this basis that the Trial Tribunal after evaluating the evidence placed before it, proceeded to recompute the results and arrive at the fact that the 1st Respondent was not elected by a majority of lawful votes cast.

“At the risk of emphasis, the evidence before the Trial Tribunal and indeed now before this Honourable Court is largely documentary as they are result sheets emanating from the election. All the witnesses did was to identify the documents and same was tendered through them. These documents were not disputed by the Respondents as there was no contrary document placed before the court to impeach their admissibility or weight as the case may be.

“The documents were therefore duly certified and tendered per the express provision of Section 137 of the Electoral Act, 2022 which provides as follows:

“it shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”

“By the enactment of Section 137 of the Electoral Act, 2022, the necessity of calling polling units agents have been obviated. The document tendered by the Appellants to establish lone ground are Certified True Copies which were manifest ex facie on the allegation made. There was no contrary evidence to debunk the validity of those documents. This Court Per Jauro, JSC gave a correct interpretation of Section 137 of the Electoral Act in OYETOLA v. INEC (2023) LPELR-60392 (SC) at Page 9-10 thus:

“It is indisputable that Section 137 of the Electoral Act only applies where the non- compliance alleged is manifest from the originals or certified true copies of documents relied on.” (Underlining ours for Emphasis).

“Furthermore, in the lead judgment, delivered by Agim, JSC, the Apex Court held at p.29,

thus:

“…He admitted that his analysis was based on his examination of the content of the Form EC8As for the 744 polling units and the BVR. It is obvious that the same documents were in evidence before the Tribunal and that therefore it was bound to review, evaluate and analyze the same documents and make its own inferences from them and cannot accept the opinion of PWI based on his inferences from the documents as its own. The Court cannot adopt the opinion of a person concerning a documentary evidence before it without itself considering that evidence and drawing its own inferences from it…” (Underlined ours for Emphasis)

“The objective of Section 137 of the Electoral Act, 2022 is to relieve a petitioner from calling eye witness evidence in proof of allegations other than corrupt practice, when the complaints are manifest on the face of the document. In essence, section 137 of the Electoral Act, 2022 can be invoked and relied upon even when non-compliance is not a ground of the Petition.

“We equally invite your Lordships to Paragraph 46(4) of the 1″ Schedule to the Electoral Act, 2022 which permits the Tribunal to receive documents and properly evaluate them. The Paragraph provides thus:

“documentary evidence shall be put in and may be read or taken as read by consent, such documentary evidence shall be deemed demonstrated in open court and the parties in this petition shall be entitled to address and urge arguments on the content of the documents and the Tribunal or court shall scrutinize or investigate the content of the document as part of the process of ascribing probative value to the documents or otherwise.”

“In NAGOGO v CPC (2013) ALL FWLR (Pt. 685) 272 at 307 this Court held thus:

“a court cannot pretend not to see a documents before it, particularly when such document is germane to the justiciable resolution of the issues in contention”

“Furthermore, in ARABAMBI v. A.B.I (2005) 19 NWLR (Pt. 959) Pg lat 29, this Court held thus:

“….A Trial Judge whilst evaluating evidence is at liberty to examine and peruse most carefully documents and oral evidence before him that is part of this judicial function and if he fails to do so, then he is falling in his duty. In fact, even where necessary a judge ought to comb any crucial evidence before him with the finest tooth comb to ensure that credible and reliable evidence is ascertained and appited towards the just determination of the case”

“From the above, it is glaring that what the Court needed to arrive at the fact that there were discrepancies in the Ward results and the polling unit results is ex facie on the documentary evidence presented to it. The oral testimony of witnesses were incapable of varying and/or altering the contents of the unchallenged documents that were before the trial Tribunal thus, it need not rely on the testimony of the witnesses to arrive at the conclusion it reached. This position had long been settled in the case of TEREB v. LAWAN (1992) 3 NWLR (Pt. 236) 569 at 592, where it held per Aikawa JCA, which we commend as persuansive authority thus:

“…But we have to bear in mind the nature of Form ECS (A) and Form EC8(B) as exposed in Decree No. 50 of 1991. The two forms are to show the polling unit, the code number, the ward and the Local Government Area they relate to. They are statutory forms and when tendered give full information needed for a polling unit. A petitioner who tendered them in proceedings by so tendering them has given all the relevant evidence which is discernible from the forms… The forms themselves carry the bold information of the polling unit to which they relate… The Tribunal erred seriously by failing to see that forms ECSA and EC8B are statutory forms complete on their own as to their source and purport and which cannot therefore be equated with ordinary exhibit. I am firmly of the view that exhibits 5 and 9 ought to have been fully considered by the Tribunal since the fact to which they relate were pleaded by the petitioners. I shall now consider each of these forms….”

“In that pursuit, we submit that the Appellants did not give hearsay or inadmissible evidence as erroneously held by the court below. The Appellants, accordingly gave legal evidence and the Court below was right to have recomputed the scores in that regard, and we urge Your Lordships to so hold. We commend the decision of this Court in Uzodinma v. Ihedioha (2020) LPELR-50260 (SC), Per Kereke-Ekun JSC, thus:
“…However, in the instant case, the contention was that ai the ward collation stage, votes scored by the appellants were unlawfully excluded. The documents required to prove this allegation would be Form EC8A series, which is the primary evidence of an election i.e. statement of results from polling units and Form EC8B, the ward collated results. The appellants called 54 witnesses and tendered Forms EC8A, ECSB, EC8C, EC8D and ECSE series. The 1st respondent also tendered certified true copies of the Form EC8 series and called 4 witnesses. The 2nd respondent called on the witness while the 3rd respondent did not call any witness and did not tender any documents. The trial tribunal and the Court below were of the opinion that in order to prove unlawful exclusion of results in the said 388 polling units, it was incumbent upon the appellants to call the polling unit agents to testify to the fact that elections took place in their respective units. A careful perusal of the appellant pleadings reveals that they did not, at any stage challenge the holding of elections in any polling unit. I am of the view that this is crucial. Indeed, their contention was that elections held, they scored votes but their votes were excluded at the collation stage. The need to call the polling unit agents to prove that elections actually held in those polling units did not arise. The authorities of this Court requiring the evidence of polling unit agents, polling unit by polling unit, are therefore not applicable in the circumstances. This is more so because the respondents, particularly the 3rd respondent denied excluding the votes scored by the appellants in the affected units. In other words, they did not contend that elections did not take place in the 388 polling units. Their contention is that the results relied upon by the appellants are false. That they are not genuine. They pleaded that they, would tender the genuine results.” (Underlined ours for emphasis)

“My Noble Lords, the fact of the case of Uzodinma v. Ihedioha (Supra) is on all fours with the facts of this case hence, there is no need to call all polling unit agents whereas the complaint of the Petitioners/Appellants is not about what transpired at the polling units but largely at the Ward Collation Centres. In arriving at the decision, we invite your Lordships to the appropriate computation which the Trial Tribunal rightly arrived in coming to its decision that it was the Appellants and not the 1″ and 3 Respondents that scored the majority of lawful votes cast in the election of 18th March, 2023 in Nasarawa State.

“In arriving at the actual computation, the Trial Tribunal took cognizance of the exhibits tendered by the Petitioners cum Appellants herein. The table below provides a detailed explanation of the votes computed by the Trial Tribunal as per the exhibits tendered by the Petitioners cum Appellants. The first row contains the total votes as announced by INEC on the day of declaration. The other rows with the subtraction and addition signs are the votes subtracted and added for both parties affected by the said wrongful computation and overvoting as your Lordships will find in the table below. The table below can be found on page 3541 of Volume 5 of the record of Appeal.

ACTUAL VOTES

TOTAL VOTES AS ANNOUNCED BY INEC	283,016 (1^ST PETITIONER)	347,209 (2^ND RESPONDENT)
Gayam Ward (Lafia LGA)	+1,526	– 20,104
Chiroma Ward (Lafia LGA)	+2,454	-33,681
Ashige Ward (Lafia LGA)	+4,488	+2,673
Kanje/Abuni Ward (Awe LGA)	+580	-580
Azara Ward (Awe LGA)	+1,000	-1,210
Alwanza Mada PU (Sabon Gari Ward, Doma LGA)	+311	+7
Bohar Sarki PU (Ningo/Bohar Ward, Akwanga LGA)	-2	-743
Kofar Magaji Gari Angwan Makama PU (Nassarawa Eggon Ward, Nassarawa Eggon LGA)	-24	-481
Gadabuke PU (Gadagwa Ward, Toto LGA)	-42	-215
Ihamkpe (B) PU (Shege Ward, Toto LGA)	-20	-429
ACTUAL TOTAL SCORES	293,287	292,446

“In that pursuit, we urge Your Lordships to resolve this issue in favour of the Appelants and against the Respondents accordingly.

LEGAL ARGUMENTS IN SUPPORT OF ISSUE FIVE.

“It is our position that the court below did not rightly allow the appeal and accordingly set aside the judgment of the Trial Tribunal. The Court failed to properly evaluate the evidence brought before it thereby arriving at a perverse finding ultimately. The Court below in allowing the appeal held that the Trial tribunal failed to evaluate the evidence tendered by RW1-RW22 on pages 4123-4124 of volume 6 of the Record of Appeal as follows:

“From the record, one can see at page 3531 that the Tribunal summarily dismissed the evidence of RW1-RW22, that is, the Appellant’s witnesses stating that they were not witnesses of Truth. It is worthy of note that the Tribunal did not state how they arrived at this conclusion. The Tribunal only stated that they were not witnesses of truth and their evidence were filled with contradictions. This finding of the Tribunal that the Appellant’s witnesses RWI to RW22 are not witnesses of truth is perverse as the Tribunal failed to give the reason for this finding: The Supreme Court in A.G Leventis (Nig) Ple. V Akpu (2007) 17 NWLR (PL. 1063) 416 held that: “a Court must give reason or reasons for a particular finding of fact or holding”.

“It is very evident from the above excerpt that the Trial Tribunal gave reasons as to why it could not act on the evidence tendered by the 1 and 3rd Respondents’ witnesses. This is a reason the Court below alluded to that the evidence could not be acted upon because the witnesses were not witnesses of truth. The rationale behind that finding of the Trial Tribunal was that the testimony of the said witnesses contradicted the documentary evidence before it.

“More fundamentally, there was a plethora of documentary evidence before the Trial Tribunal and indeed the Court below which includes but is not limited to Exhibits R1- R7, RW125, RW127, RW107, RW109, RW110, RWIII, RW112, RW113, RW114, and RW115. The testimony of the said witnesses RWI to RW22 contradicts the Exhibits mentioned herein, and this was the rationale behind the decision of the Trial Tribunal that the witnesses were not witnesses of truth. See Eimskip Ltd v Exquisite Industries (Nig) Ltd (2003) LPELR-1058(SC).

“It is our contention therefore: that the Court below was wrong to have held that the Trial Tribunal did not give reason for dismissing the testimonies of RW1-RW 22 which were apparently contradictory with the documentary evidence.

“In light of the foregoing, it cannot be said that the Court below rightly allowed the appeal since it did not properly evaluate the evidence contained in the record before it. All the poignant issues were wrongly resolved against the Appellants as argued in our preceding issues above.

“Furthermore, my Noble Lords, we submit that the lower Court misunderstood the case of the Appellants as Petitioners before the trial Tribunal. First, at the pre-hearing session, it was agreed and so ordered by the trial Tribunal that certified true copies of INEC documents should be tendered from the Bar and so the certified copies of the results were tendered from the Bar by the Appellants. We refer Your Lordships to the relevant portion of the pre-hearing report under the sub-paragraph settlement of documents at page 3247 of vol. 5 of the Record which reads thus:

“Since those documents are public documents which have been consented to by the parties, the said certified documents shall, in line with Paragraph 41(2) of the First Schedule to the Electoral Acts, 2022 be tendered from the Bar and admitted during the hearing”

“It was in line with the above position reached at the pre-hearing session that the Appellants tendered relevant certified copies of INEC documents from the Bar. Additionally, it is the law that Certified True Copies can be tendered from the Bar without necessarily being tendered by the makers of the documents. We commend your to Lordships the case of Agagu v. Dawodu (1990) 7 NWLR (Pt. 160) 56. The Appellants’ documents were therefore rightly tendered from the Bar and identified by the Appellants’ witnesses. The documents speak for themselves and the trial Tribunal rightly examined and relied on them. The law is that documents speak for themselves and cannot be varied by oral evidence On this point, we call in aid the decision of the Supreme Court in Ibrahim v. Abdallah & Ors (2019) LPELR-4898 (SC).

“It was also further agreed during the pre-hearing session at the Tribunal and ordered in the pre-hearing report particularly as shown at page 3249 of vol. 5 of the Record that documents shall be tendered from the Bar and taken as read. Thus, none of the Appellants’ document was dumped on the Tribunal especially as they were already taken as read at the point of being tendered. The order of the Tibunal that the exhibits be taken as read was in accordance with the provision of Paragraph 46(4) of the First Schedule to the Electoral Act and the law is that where exhibits are taken as read by consent of all parties, the contents of the exhibits are deemed to be known by the Court and the Parties and such Exhibits cannot be said to have been dumped as the Court below wrongly did.

“My Lords, Exhibit C32 was conclusive proof that elections were held and collated at the Ashige Ward level and there became absolutely no need for any witness present at these 35 polling units to be called as witnesses as the document (Exhibit C32) speaks for itself. The Tribunal was therefore right to rely on the same to restore the votes of the Parties. We say so because the whole essence of tendering documents at the trial was for the Tribunal to look at them thoroughly and rule on same which the trial Tribunal rightly did. On this point, we call in aid the decision in Fabenro v. Arobadi & 3 Ors (2006) 7 NWLR (P 978) P172 Pp 194 195 paras H-B.

“In demonstration that PW12, PW13 and PW16 were competent witnesses contrary to the finding of the lower Court, we refer Your Lordships to page 3307 of vol. 1 of the Record where it can be seen that PW12 (James Allu) testified pursuant to the subpoena issued on him (Exhibit SUB 305) and he was affirmed. His unchallenged evidence was that he served as a Ward Collation Agent for his political party for the Gayam Electoral Ward. PW13 on his part was the Ward Agent for his political party Action Alliance for the Chiroma Electoral Ward. His testimony is at pages 3310 to 3312 of vol. 5 of the Record. He was affirmed on oath and testified pursuant to the subpoena issued on him. PW 16 (Audu Akaku Jude with acronym M.A.U) in his testimony at the Tribunal identified himself as Agent of the 2nd Appellant as captured at page 3325 of vol. 5 of the Record. “In further demonstration that the trial Tribunal in its Judgment rightly recomputed the result of the election based on the results tendered in evidence as set out at pages 3527- 3541 of vol. 5 of the Record contrary to the position taken by the lower Court, we place reliance on the decision in Nagogo v. Congress for Progressive Change (2013) ALL FWLR (PT 685) 272 at 307 (SC) where this Court per Tabai, JSC held thus: “A Court cannot pretend not to see a document before it, particularly when such document is germane to the justiciable resolution of the issue in contention.”

“On the powers and duty of a trial Court to examine documents before it as the trial Tribunal rightly did, we also refer Your Lordships to the decision in Arabambi v. Advanced Beverages Ind Ltd (2005) 19 NWLR (Pt 959) P1 at 31 paras A – B where this Honourable Court per Mukhtar, JSC held that:

“…A trial Judge whilst evaluating evidence is at liberty to examine and peruse most carefully documents and oral evidence before him that is part of his judicial function and if he fails to do so, then he is failing in his duty In fact, even where necessary a Judge ought to comb any crucial evidence before him with the finest tooth comb to ensure that credible and reliable evidence is ascertained and applied towards the just determination of the case.

“The lower Court was therefore in error when it took a contrary position and interfered with the findings and conclusions which the trial Tribunal reached in favour of the Appellants largely based on examination of uncontroverted documents before it. This is more so as there was nothing any witness or polling agent could say to vary the contents of the documents that were in evidence.

“Although the 2 Respondent (INEC) at paragraph 39 of its Reply (page 581 of vol. 1 of the Record) pleaded that it will rely on all the forms EC8As for all the disputed polling units and forms EC8Bs for the disputed wards, none were tendered. The trial Tribunal was therefor right to have relied on the unchallenged certified copies of results and electoral documents tendered by the Appellants in recomputing the scores of the Parties to determine the majority of lawful votes. The lower Court failed to see that the certified copies of the electoral documents relied upon by the trial Tribunal showed, upon simple arithmetic, that the Appellants (1 and 2nd Respondents at the lower Court) won the majority of lawful votes and that no oral evidence of any witness was capable of varying the contents of those documents.

“The record before the lower Court showed that the trial Tribunal recomputed the votes of the Parties largely based on the undisputed certified copies of results and electoral documents before it and that the trial Tribunal rightly acted on them in so recomputing the votes especially as none of the Respondents tendered contrary or counter documents in respect thereof.

“The Court below failed to recognize the fact that the Trial Tribunal rightly recomputed the scores in the affected four polling units and adjudged the 1″ Appellant winner of the Governorship election in Nasarawa State.

“My Lords, the law is firmly settled upon which there is no depature that by virtue of Section…of the Electoral Act, 2022 (which is impari material with Section 69 of the Electoral Act, 2010 (Repealed), the Tribunal has the power if not a duty, to collate and compute results where either they had been wrongly excluded, inflated or computed.

“We therefore urge Your Lordships to resolve this issue in favor of the Appellants and against the Respondents without much ado.”

Governor Sule Responds

In response to the appeal filed by David Emmanuel Ombugadu and the PDP, Counsel to Governor Abdullahi Sule also formulated five issues for determination, urging the Supreme Court to decide in his favour. The issues are:

Whether the lower court was not correct in its conclusion that the tribunal breached the 1″ respondent’s right to fair hearing arising from the manner the said tribunal treated 2nd respondent’s motion challenging its jurisdiction. (Grounds 1, 2 and 3)
Was the lower court right to have struck out the testimonies of PW5, Pw6. PW7, PWS, PW12, PW13, PW20 and PW21 who testified either without any witness statement and/or witness statement frontloaded alongside the petition. (Grounds 4, 5, 6, 7 and 8).
Did the lower court rightly set aside the decision of the tribunal which deducted 1,868 votes from the 1″ respondent’s votes on the basis of over voting in Four Polling Units. (Grounds 9,10,11 and 12)
Were the final orders of the lower court setting aside the decision of the Tribunal correct in the circumstances of the case before it. (Grounds 13 and 15)
Considering the pleadings and evidence led at the trial, whether the lower court was correct in setting aside the tribunal’s recomputation of the votes of parties. (Ground 14)

The following arguments were also presented in favour of the issues raised

ISSUE 1

“We submit that the decision of the lower court, setting aside the entire judgment of the trial Tribunal on account of the latter’s breach of respondent’s right to fair hearing based on the tribunal’s summary dismissal of the respondent’s motion challenging its jurisdiction cannot be faulted. For a proper appreciation of this issue, it is important to state that upon service of the petition on the respondents, they individually filed their applications challenging the competence of the petition, as well as the jurisdiction of the trial Tribunal to entertain the petition on diverse grounds, including the absence of nexus between the grounds and the pleadings, lack of jurisdiction to grant the reliefs sought, incompetent paragraphs of the petition, amongst others. For this respondent’s own application, we respectfully refer this Honourable Court to pages 2703-2721 of the record. The respondent’s motion which was predicated on a total of nine grounds was adopted and argued before the trial Tribunal on 9th June, 2023, while the other respondents also adopted their own respective applications too and by the imperative of section 285(8) of the Constitution, the Tribunal adjourned Ruling on the applications until the judgment stage.

“It is important to observe that the trial Tribunal had in the same judgment, particularly at page 3512 of the record, appreciated the fact that “the law is settled that once the issue of jurisdiction is raised before any court, it must be resolved before any further step is taken in the proceedings.” Rather than maintain fidelity to this position of the law and resolve the very important jurisdictional and threshold issues, as well as other issues canvassed in the respective objections one way or the other, the trial Tribunal, in a dismissive fashion at pages 3437-3438 of the record held that “assuming without conceding that [it] could make pronouncements…the application of the 2nd Respondent filed on 30-5-23 is dismissed and this Tribunal will now go ahead and to decide this case on its merit with a view to dig out the truth of the matter.”

“It is clear from the decision and attitude of the trial Tribunal that it did not consider and resolve any of the nine grounds of the jurisdictional objections raised by this respondent, as well as the other grounds by the other respondents. The reason given by the tribunal was that it “was capable of pre-judging the substantive issues.” We submit that this begs the question as to which of the nine grounds had the potential of preventing it from doing “even handed justice” or that constituted ‘technicalities’ as opposed to ‘substantial justice”? The trial Tribunal did not proffer answers to these controversial issues raised by itself.

“Aside from the fact that the trial Tribunal scornfully dismissed the said objections without any consideration, we draw the attention of this Honourable Court to the fact that the summary dismissal was even prefaced by the expression, “assuming without conceding that this Tribunal could make pronouncement…” In effect, even the summary dismissal of the said objection is a ‘by the way’ allusion by the trial Tribunal, which does not imply a pronouncement by the tribunal in the resolution of the objection.

“Justice and indeed the principle of fair hearing demand that all applications brought before the Court/Tribunal are to be properly considered and determined one way or the other. This is notwithstanding the court’s impression about the merit, quality, strength or weakness of the said application. This Honourable Court made the resounding point in Mobil Prod. (Nig.) Unltd. v. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 413, where the court held that “it is not only essential but mandatory for a court before which a motion (or application) has been brought to hear and determine it at the appropriate time…. Otherwise the court must set the motion down and hear and determine it one way or another even if it might be of the opinion that the motion was brought late and that what it seeks is downright irregular and frivolous.”

“Within the constitutional context, section 285 (8) of the Constitution compels the trial Tribunal to deliver its Ruling in respect of the said objection at the stage of the final judgment. In doing this, by the clear provision of section 36(1) of the Constitution, the trial Tribunal had the duty of hearing and determining the respondent’s objections in a fair manner, such that a reasonable neutral observer would go with the impression that justice has not only been done, but also been seen to have been done. See Mohammed v. Kano Native Authority (1968) 1 All NLR 412 at 413. We submit with the greatest respect to the trial Tribunal that a reasonable observer looking through its summary dismissal of the objection could not have gone with the impression that justice has been done to any of the fundamental issues raised therein.

“What transpired before the trial Tribunal was very similar to the situation in Oyetola v. INEC & Ors (2023) 11NWLR (PT 1894) 125 at 185, whereupon, this Honourable Court, per Agim JSC, nullified the entire judgment of the trial Tribunal in the following words:

“It is glaring that the tribunal lumped several preliminary objections together, without considering each of them and the issues raised in each, dismissed them. The exact text of its decision reads thus:

“the several preliminary objections to the competence of the competence of the 1″ petitioner as a candidate in the election and the jurisdiction of this tribunal to determine the said petition are hereby dismissed.”

“This amount to sweeping aside the objections without hearing or determining them. The dismissal of the objections did not proceed from the determination of any of the objections. It violates the fair trial of the objections and the entire petition and the right of the parties to fair hearing. This feature renders the Tribunal’s judgment a nullity.”

See also OKEKE-VS- UWAECHINA (2022) 10 NWLR (PT. 1837) 173 @ 191 to 192 paras H-C.

“It is against the foregoing background and binding decisions of this Honourable Court, that the lower court rightly found that the trial Tribunal failed in its duty to resolve the issues raised, which invariably necessitated the nullification of the entire proceedings at pages 4090 to 4091 of the record thus:

“From the record of court, specifically at pages 3431-3438, the Tribunal highlighted the reliefs sought by the Appellant and dismissed the same for being capable of pre- judging the case or/and being filled with technicalities and thus, did not resolve the issue of law raised therein. I have carefully considered the said application; there is nothing prejudicial in the Application and the Tribunal was duty bound to consider the same and resolve the issues therein, particularly on the competence of the Petition which touches on the jurisdiction of the Tribunal to hear and determine the same. It is settled principle of law that a court has a duty to resolve all material issues presented before it.

“Much as a court has the duty of determining all applications before it, the dereliction by the trial Tribunal becomes even more debilitating, when it is observed that the vexed application, challenged the jurisdiction of the trial Tribunal. But for the constitutional allowance for the tribunal to suspend decision on the jurisdictional issue to the final judgment, it ordinarily had the onus of putting a halt to everything on its schedule, once issues of its jurisdiction are raised. The constitutional intervention, notwithstanding, the position of the law remains true that the court lacks the vires to make any order without first determining the question of its jurisdiction. This was the position in Ajavi v. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 at 180-181, where this Honourable Court held thus: “It is trite that once an issue of jurisdiction is raised in any suit, the court must not give an order in the suit affecting the defendant until the issue of jurisdiction is settled. The trial court obviously made a wrong order in dismissing the application of the appellant based on issues of jurisdiction-locus standi of the plaintiff/respondent and Limitation Law.”

“The effect of this standing position of the law is that even beyond the fair hearing effect of the court’s failure to determine the respondent’s objection, the entire judgment which was delivered without resolving the issue of jurisdiction, was in itself, delivered without jurisdiction and we urge this Honourable Court to so hold. As earlier noted, this position of the law was not lost on the lower court, as it also alluded to same on page 3513 that “any decision reached without jurisdiction, no matter how well conducted is a nullity to be set aside.”

“This Honourable Court has consistently held that a decision, be it a judgment, Ruling or whatever name it is called, must set out the nature of the action, the issue in controversy, review the cases for the parties, consider the relevant laws raised applicable to the case, make specific findings of fact and conclusion and then give reasons for arriving at those decisions. In Obueke v. Nnamchi (2012) 12 NWLR (Pt. 1314) 327 at 355, this court held that “every determination of a court consists of findings of fact and based on the facts so found and the inference drawn therefrom, the court comes to its ultimate conclusion which may be of fact or law or both law and fact.” See also Abubakar v. Nasamu (No.1) (2012) 17 NWLR (Pt. 1330) 407 at 459, Ojogbue v. Nnubia (1972) 6 SC 227 at 236.

“In its attempt at faulting the decision of the lower court, rather than directing this Honourable Court to the portion of the judgment of the trial Tribunal, where the respondent’s objection was determined on the merit, the appellants seek to muddle the whole issue, by suggesting at paragraph 4.6 of their brief that the same issue of jurisdiction raised in the application was also raised as Issue No. 1 in the respondent’s issues for determination. We urge this Honourable Court to observe that this clearly marks a concession of the argument being made by the respondent, as there is no refutation of the fact that the objection was left unattended. Further, the record (particularly, pages 3513- 3514, vol. 5 of the Record) will demonstrate that the said issue 1 was also not determined by the trial Tribunal to finality. In any event, we urge this Honourable Court to juxtapose the grounds of the respondent’s motion, as appearing on pages 2704-2707 (vol. 4) of the record with the said issue 1 as contained on page 3511 (vol. 5) of the record, as well as its resolution as contained on pages 3512-3514 (vol. 5) of the record. In so doing, the court will readily find that the appellants’ submission is totally non-sequitur, as the trial Tribunal did not resolve anything about the propriety or otherwise of the reliefs and whether the said reliefs confer jurisdiction on it. More so, assuming without conceding that the respondent’s objection has some semblance with issue 1 purportedly resolved by the trial Tribunal, it is again necessary to identify the fact that the respondent was not the only person with objections before the trial Tribunal for the dismissal of the petition in limine on diverse grounds, other than reliefs, which said objections were left unresolved by the trial Tribunal. Therefore, the said argument will still not avail the appellants in any way.

“More so, even the said issue I was not resolved by the trial Tribunal on its merit as it concluded that “reliance on technicalities could be due to human error and slit-ups leads to injustice. Justice can only be done if the substance of the matter rather than the form is attended to in the consideration of these matters.” Just like the tribunal failed to determine the application of 30th May, 2023, it also failed to determine Issue 1 of the respondent’s issue for determination by relying on the fact that they were technical issue and that the Tribunal would like to dig into the substance of the matter. Essentially, therefore, the appellants have no basis for a succour under the said issue 1 before this Honourable Court.

“It is noteworthy that all the grounds of the objection were predicated on decisions of this Honourable Court. The trial Tribunal ought to have held itself bound by these decisions. However, it did not even consider the respondent’s arguments, let alone, holding itself bound by the authorities cited therein. The cumulative effect of the decision of the lower Tribunal is that it infringed very seriously on the respondent’s right to fair hearing, by failing to consider and resolve the issues raised in the jurisdictional objection. Relying on the decisions of the Supreme Court in Chitra KWMC Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487 at 509 and A.C.B. Plc v. Losada (Nig.) Ltd. (1995) 7 NWLR (Pt. 405) 26 at 53 and Transnav P.N. Ltd. v. Velcan E.H.D. Ltd. (2020) 7 NWLR (Pt. 1723) 293 at 323, we submit that the failure of the trial Tribunal to consider the issues raised in the respondent’s application vitiates the entire proceeding and that was the exact position of the lower court, when it held thus, at pages 4092 to 4093 of the record thus: “Granted that every judge has his style of judgment writing, but in every Ruling or Judgment, the Court must demonstrate a complete and composes consideration of the issue properly raised. In the instant case as can be seen at page 3438 of the Record, the Ruling on the preliminary objections by the Tribunal, did not address the issues raised in the Appellant’s preliminary objection. It was certainly not a ruling on the merits as it neither determined the issues of law or facts raised therein. See Adeleke v. Oyetola (2023) 11 NWLR (Pt. 1894) 71. From the above, I hold that the Tribunal was in error, having failed to resolve the issues challenging the competence of the petition and jurisdiction of the Tribunal raised in the Motion of Notice dated 30 day of May, 2023. Accordingly, I hold that the decision of the Tribunal dismissing the objections of the Appellant without determining the same renders the judgement of the Tribunal a nullity. Oyetola v. INEC (2023) 11 NWLR (Pt. 1894) 125 at 185.

“While the above decision remains unassailable, it is obvious that the appellants have made failed efforts at impeaching the said decision of the lower court, particularly, at paragraphs 4.15-4.16 of their brief, where they suggested that the lower court ought to have determined the substance of the said application and reached a decision. Clearly, the appellants in making this suggestion qua submission, did not advert themselves to the sui generis character of election petition and the constitutional timeline of 180 days as prescribed by section 285(6) of the Constitution, for the conclusion of the entire proceedings at the trial Tribunal. Therefore, the lower court could not activate its power under section 16 of the Court of Appeal Act to determine the substance of the application which was shoved aside by the trial Tribunal. Notably, the appellants have, at paragraphs 4.16-4.17 of their brief, admitted that the two reasons where the court could set aside a judgment are: (1) where the right of fair hearing of the respondent was breached and (2) where the decision has occasioned a miscarriage of justice. We submit that the refusal of the Tribunal to consider all the issues was a clear breach of the respondent’s right to fair hearing and same has occasioned a miscarriage of justice on the respondent. The dismissal of the objections without their resolution constitutes a violation of the right to fair trial of the objections and the entire petition and the right of the parties to fair hearing. The law is trite that in such circumstance, the respondent did not need to demonstrate any form of injury before the entire proceeding will be nullified as done by the lower court. See Idakwo v. Ejiga (2002) 13 NWLR (Pt. 783) 156 at 167. In fact, in Olaviove v. Oyelaran (2019) 4 NWLR (Pt. 1662) 351 at 377-378, this Honourable Court held that “where it is shown that the principle of fair hearing was not observed, the party complaining need not establish any injury or prejudice to himself… It is also immaterial that the same decision might have been reached even if the court had observed the principles of natural justice.”

Lastly on this issue, we urge the court to observe that the appellants have not succeeded in making any distinction between the instant case and the decision of this Honourable Court in Oyetola v. INEC (supra), particularly, as the dictum reproduced in paragraph 4.7 above, succinctly captures the circumstances of the decision. We, therefore, urge this Honourable Court to resolve this issue in favour of the respondent and against the appellants.

ISSUE 2

“By this issue, we address the appellants’ complaint against the decision of the lower court which struck out and expunged the entire evidence of PW5, PW6, PW7, PW8, PW12, PW13, PW20 and PW21, who were witnesses subpoenaed by the appellants without frontloading their witness statements. The basis for striking out and expunging the evidence of the said witnesses, along with the documents purportedly tendered through them, was that the procedure adopted by the appellants as petitioners, was in breach of the clear provision of paragraphs 4(5) of the First Schedule to the Electoral Act, 2022. The documents include Exhibits Sub 1 to Exh Sub 335; Exhibits BVI to Exh BV 207; Exhibits SP01 to Exh SP 209; Exhibits I.D 1, I.D3, I.D27-L.D28; Exhibit PS, Exhibits PSI to PS 60, PS 67, 68A, 68B; Exhibits LA 3, Exhibits R8 and R9; Exhibits 109, ID10, 1011, Exh B62 and Exh Sub325 to Sub420.

“For context, may we point out that at the trial Tribunal, the appellants fielded a total of 21 witnesses, out of which 8 were subpoenaed witnesses. The trial Tribunal despite strong opposition from the respondents condoned and countenanced the evidence of the appellants’ subpoenaed witnesses who testified orally without any written statement on oath in arriving at its perverse decision setting aside the victory of the respondent. By the combined provisions of section 285(5) of the Constitution, paragraphs 4(5)(b) and 41(3) of the First Schedule to the Electoral Act, every witness which a petitioner intends to call is mandatorily required to have their written statements on Oath filed along with the petition within 21 days of the declaration of the result. Paragraph 41 of the same First Schedule expressly provides, without any exception, that “there shall be no oral examination of a witness during his evidence-in-chief except to lead the witness to adopt his written deposition and tender in evidence all disputed documents or other exhibits referred to in the deposition.”

The very instructive point is that there is no distinction of any kind in the class of witnesses whose witness statements are statutorily required to be frontloaded. On this point, we respectfully commend to this Honourable Court, the decision of the Court of Appeal in Advance Nigeria Democratic Party (ANDP) v. INEC & 2 Ors., delivered on 17th July, 2020 (at 43-44), which said decision was followed by the said court in CA/PEPC/03/2023- Peter Gregory Obi & Anor v. Independent National Electoral Commission & 3 Ors and CA/PEPC/05/2023- Abubakar Atiku & Anor. v. Independent National Electoral Commission & 2 Ors., both decided on 6th September, 2023. The said decisions were affirmed by this Honourable Court in SC/CV/935/2023- Abubakar Atiku & Anor. v. Independent National Electoral Commission & 3 Ors. and SC/CV/937/2023- Peter Gregory Obi & Anor. v. Independent National Electoral Commission & 2 Ors., both delivered on 6th October, 2023. Even more recently, this Honourable Court restated the same position of the law in SC/CV/1130/2023- Edeoga Chijioke Jonathan & Anor. v. Independent National Electoral Commission & 2 Ors., delivered 22nd December, 2023.

“We submit further that the use of the word ‘shall’ in paragraph 4(1) and (5) of the First Schedule to the Electoral Act makes the filing of all written statements on Oath mandatory and conclusive. See Ogidi v State (2005) 5 NWLR (Pt.918) 286 at 327 and Ugwu v. Ararume (2007) 12 NWLR (Pt.1048) 367 at 441-442. Section 285(5) of the Constitution also provides for the 21 days timeline within which a petitioner may file his petition. Without mincing words, this timeline, which has been likened to immutable landmarks as the rock of Gibraltar and mount Zion cannot be extended by a millisecond. See APC Vs. Marafa (2020) 6NWLR (PT 1721) 383 at 423, ANPP v. Goni (2012) 7 NWLR (Pt. 1298) 147 at 182 and Marwa v. Nyako (2012) 6 NWLR (Pt. 1296) 199 at 286.

Contrary to the appellants’ submission at paragraph 5.5 of their brief of arguments that by virtue of paragraph 42(1) of the First Schedule, a subpoenaed witness is a witness of the court, it our humble submission that this position is unfounded and the case of Abba Kabir Yusuf & Ors (Unreported) in CA/KN/EPT/EP/GOV/KAN/05/2023 cannot aid the case of the appellants. On this, we again, respectfully commend to this Honourable Court, Ugwu v. Ararume (2019) LPELR-48397(CA) at 35, where the court pointedly answered the appellants’ contention in the following words:

“The subpoena was issued to the witness upon application by the Petitioners and the witness is commanded in the name of the President of the Federal Republic of Nigeria to appear before the Tribunal to give evidence on behalf of the Petitioners. The only witness or witnesses compellable at the instance of the Tribunal are provided for in paragraph 41(5) & (6) of the First schedule to the Electoral Act, 2010 as amended. Strict compliance with Paragraph 4(5) of the First schedule to the Electoral Act is mandatory.”

“It was the appellants as petitioners that determined the witnesses to be called as subpoenaed witnesses, made the application to call the said witnesses, paid for filing of the applications, mobilized the bailiff of the Tribunal to serve the subpoena, amongst others. With these, it can certainly not be said that such a witness is a witness of the court and we urge the court to so hold.

“The appellants who in one breath in Paragraph 5.5 stated that they are witnesses of court have in another breath in Paragraph 5.10 of their brief posited, albeit wrongly, that subpoenaed witnesses are official witnesses and are not within the control of the appellants and that PW12 and PW13 are official witnesses of other political parties. The Court below punctured this argument at page 4105, vol. 6 of the record, as follows:

“INEC by any stretch of understanding and imagination is not an adverse party (witness). In the circumstances of this case, INEC is an umpire, a referee, a supervisor, a judge, an adjudicator and as its name goes INDEPENDENT. This is what the law that created INEC to be, if INEC deviates from its legal identity, that would not be in the intention or making of the law but the corruption and pollution of the polity.”

“May we draw the attention of this Honourable Court to the fact that in Peter Gregory Obi v. INEC (supra), Abubakar Atiku v. INEC (supra) and Edeoha Chijioke Jonathan v. INEC (supra) all decided by this Honourable Court, the witnesses in question were officials of different statutory bodies like INEC, NITDA and NYSC, who though being subpoenaed, their witness statements were not frontloaded with the petition. So, assuming without conceding that the appellants’ witnesses were official witnesses, that fact alone will not absolve them of the duty of frontloading their witness statements. The rather curious point, is that the trial Tribunal appreciated this point, but only applied it against the respondent at page 3508 of the record, when he sought to rely on evidence elicited under cross-examination from subpoenaed PW8. The trial Tribunal expressed its understanding of the incompetence of any evidence from the said witness, in the following words:

“This Tribunal wants it to be noted at this juncture that the said PW8 has no witness statement on oath before this Tribunal, the question to be decided is whether a party like the 2nd respondent in this case can approbate and reprobate at the same time. The answer is capital no.”

“Thus, whereas the Tribunal permitted the viva voce examination-in-chief of the said witness who had no witness statement on oath, it refused to give effect to the damaging evidence against the appellant elicited under cross-examination on the ground that the witness had no witness statement. This, with respect, was not evenhanded justice as it ought to have struck out the entire testimony of all the witnesses who did not have witness statements frontloaded with the petition.

“It is obvious from the circumstance of the case that the appellants’ whole intention before the trial Tribunal was to spring surprises at the respondent. Unfortunately for them, the law does not condone this, as litigation is not a game of hide and seek and the whole idea of frontloading of processes has been introduced to prevent such forms of surprises. In effect, therefore, had they not intended taking the respondent by surprise, they had all the time to apply for the subpoena before the filing of their petition, in which case, they could frontload their witness statements with the petition within the prescribed 21 days. This is more so, as by virtue of section 130 (3)(a) of the Electoral Act, Election Tribunals are required to be constituted within 30 days before the conduct of the election. Hence, contrary to the appellants’ position, there was ample opportunity for them to have subpoenaed any kind of witness and also frontload the witness statements of the said subpoenaed witnesses with the petition. This much was observed by the lower court at pages 4107 to 4109 of the record, when it held thus:

“…a Petitioner in an election matter who intends to make INEC his witness can apply to the court to subpoena an INEC official to testify in his petition. The process of the application and the grant of the subpoena to compel INEC to appear in court to testify is very short straight forward and falls well within the 21 days the Petitioner is allowed by law to file his petition. So, a Petitioner who after inspection of INEC materials desires to rely on any INEC document has ample time within 21 days to subpoena INEC as his witness, list the INEC official he desires to call and frontload the documents he intends to tender through him.

The law has even simplified it by allowing the use of alphabets and acronyms to identify witnesses instead of their real names. So, a Petitioner does not need to know the name of the INEC official that will come to tender and talk to the documents he wishes to tender through him. Having held that INEC is not an adverse party(witness) and the requirement of listing INEC as a witness and frontloading the documents to be tendered through INEC, well with legal reach; the Petitioners had no legal excuse not to follow the provisions of para 4(5) of the First Schedule to the Electoral Act, 2023.

I therefore hold that the Tribunal was wrong when it failed to expunge the evidence of subpoenaed witnesses who had no witness statement at all and or witness statement frontloaded alongside the filing of the petition.”

“In demonstrating that the appellants should have done the needful within the limited period of 21 days allotted by the Constitution for the filing of the petition, may we refer the court to pages i-xii of vol. 1 of the record showing that, 5 days after the election and 3 days after INEC returned the respondent as winner of the said election, the appellants filed an ex parte application before the Tribunal by which it obtained orders against INEC, including for INEC to “on a day to day allow the applicants and/or their representatives and agents to inspect, scan and make copies for use by the applicant and then obtain the certified true copies (CTC) of all pulling documents…”. Essentially, therefore, had the appellants also applied for the subpoenas at the said time, they would have been able to do the needful with respect to filing subpoenaed witness’ statements within the time stipulated by constitutional imperatives.

“Apart from the fact that the cases of Lasun v. Awoyemi, Dickson v. Sylva Omidiran v. Olubunmi Etteh cited by the appellants were decided under the 2006 and 2010 Electoral Acts respectively, the said decisions have become overtaken by the current position of the law, as espoused by this Honourable Court in the decisions of this Honourable Court referenced above. Thankfully, there is no such entreaty on this court to depart from the said position, which with all respect, is sound in logic and consistent with the principle of fair hearing and fair trial.

“We accordingly urge this Honourable Court to resolve this issue in favour of the respondent and against the appellants. Such resolution would suffice for the ultimate dismissal of this appeal because, it was by these subpoenaed witnesses that appellants sought to prove the bulk of the petition. For instance, it was PW7 who had no witness statement but testified orally who brought BVAS machines which were not demonstrated to the Tribunal. It was also through him that the said BVAS machines were returned by order of court. If as rightly held by the Tribunal, his witness statement and all the documents tendered and dumped by him are struck out, the case of over-voting naturally will fail even without the need for a consideration of the feeble and unsustainable evidence, ditto for the case on re-computation of votes which was also anchored on the testimony of other subpoenaed witnesses including PW5, PW6, PW8, PW12, PW13, PW20 and PW21.

ISSUE 3

“This issue is quite central to this appeal because, by relief 3 sought in the Notice of Appeal, appellants want your Lordships to restore the decision of the Nasarawa State Governorship Election Tribunal delivered on 2nd October, 2023 in Petition No. EPT/NS/GOV/01/2023. At page 129 of the Tribunal’s judgment appearing at page 3541 of Vol.5 of the Record, the Tribunal had wrongly declared the scores of the candidates after deducting over 50,000 votes from that of the respondent thus 1 petitioner 293,287; 2nd respondent 292,446- thus leaving a margin of lead of 841 votes. In arriving at these unsustainable figures, the Tribunal had deducted 1,868 votes from the score of the respondent on account of over- voting but the lower court found this to be unproven. Thus, once this Honourable Court affirms the decision of the lower court which held that the allegation of over-voting was unproven, there will be no further basis for the appeal since the said 1,868 votes far exceed the margin of 841 votes by which the Tribunal wrongly returned the appellants as winners of the election. We reiterate that, if the Supreme Court affirms the lower court’s striking out of the testimony and exhibits tendered by PW7. A subpoenaed witness who gave evidence without a witness statement, the entire case on over-voting naturally will fail peremptorily. The lower court rightly so found at page 4117 to 4118 of the record that with the evidence of subpoenaed witnesses belatedly filed declared as inadmissible, the case on over-voting remained unproven. No valid reason has been given by the appellants to dislodge this correct finding in law.

“To preface our further arguments, it is pertinent to reiterate the point that Form EC8A is the foundation of the pyramid of election and the primary election result qua form. This has been a consistent position in our electoral jurisprudence across multiple decades. See Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 432 para. D

The importance of Form EC8A is such that, even where there is no proper or formal final collation, once a party can present the appropriate polling unit agent/eyewitness account qua oral evidence coupled with Form EC8A, the court can proceed to collate and compute results based on the polling units oral and documentary evidence. Essentially, therefore, the principle of electoral jurisprudence postulating that election results, being official acts, enjoy presumption of genuineness, implies that Form EC8A enjoys presumption of genuineness. We make this point against the background of the fact that the Forms ECSA for the four (4) polling units in respect of which over-voting was alleged to wit: Ningo/Bohar Sarki polling unit, Kofar Magaji Gari Angwan Makama polling unit, Gadabuke polling unit and Ihamkpe (B) polling unit, do not disclose any form of over- voting whatsoever. The said Forms EC8As respectively are Exhibits AKW, NE1, TOT1 and TOT1. Therefore, the law presumes that the entries in the said Forms are correct. It is, thus, for a party seeking to dislodge the said entries to present cogent evidence to upstage this presumption of the law. This is more so that, by Regulation 48(a) of the INEC Regulations and Guidelines for the Conduct of Elections, 2022, the accreditation figures from the BVAS machine is to be entered directly to Form EC8A, whilst Regulation 19(b)(iv) and 19(e)(ii) and (iii) of the Guidelines stipulate the positive identification of the voter and ticking of the appropriate box on the Voters Register as part of the accreditation process. Therefore, at the polling unit, the primary electoral documents used to make a return after votes are counted are: Form EC8A, BVAS Machine and the Voters Register. It is in appreciation of the fundamentality and centrality of these electoral documents in making a return as stipulated in the Electoral Act, that this Honourable Court in Oyetola vs INEC (2023) 11 NWLR PART 1894 125 at 170, held at paragraph E thus:

“It is glaring from the above reproduced provisions of the Electoral Act and INEC Regulations and Guidelines that the evidence required to prove that voting was allowed without accreditation and that there was improper accreditation are: the Register of Voters, BVAS, and the polling unit results in Form EC8A and that the evidence required to prove that there was over-voting are the record of accredited voters in the BVAS and the polling unit results in Form EC8A“.

Against the foregoing background, may we, therefore, invite the court to consider the evidence produced by the petitioners in their attempt to rebut the presumption of genuineness of the Form EC8As for the four referenced polling units. Evident from the arguments in appellants issue 3 is that, in urging this Honourable court to uphold a case of over-voting, they are not relying on the oral testimony of any witness. This is instructive because, there was no valid oral testimony of any witness in respect of the said four polling units. This clearly signifies that the case of over-voting in the said polling units is unsustainable to dislodge the presumption of genuineness in the EC8A. Appellants as petitioners did not deem it fit to present any eyewitness qua participant at the four polling units in the form of a voter, polling unit agent or polling unit officer to give an account of the events that allegedly negate the entries in the Form EC8A, even though, this Honourable Court in Oyetola v INEC (supra), held that the petitioners’ case on over-voting failed for relying solely on section 137 of the Electoral Act without any oral evidence to back same up by way of demonstration. We shall come back to this anon. But suffice to say that appellants’ issue 3 invites the court to do the impossible by making references to various documents such that the court would, in the recess of chambers, piece the documents together to arrive at a decision of non-compliance without any oral evidence linking the said documents or explaining the deductions to be made from each document to be correlated with the other documents in order to arrive at a finding of proof of the allegation of non-compliance.

“Under their issue 3, the Supreme Court will note that appellants have relied on various documents, including the BVAS machines and an innovation which they described as “BVAS screenshots” which is totally alien and unknown to the Electoral Act. The BVAS machines were produced at the Tribunal on 27th July, 2023 by a subpoena issued to one Godwin Idiong who gave evidence on the same date as PW7. His testimony appears at page 3318 to 3323 of Vol.5 of the record. As the court will see, in an aggressive violation of paragraph 41(3) of the 1 Schedule to the Electoral Act, 2022, this witness had no witness statement at all. Thus, the statement in particulars (ii) and (v) of Ground 9 and particular (ii) of Ground 10 of the Notice of Appeal (pages 4167 to 4170 of the record) that the said PW7 linked/demonstrated the document, is not supported by the evidence on record. Fortunately, appellants abandoned the course/position that PW7 demonstrated the documents by rightly refusing to make any such argument in their appellant’s brief of arguments. As can be seen at page 3320 of Vol.5 of the record, the only oral evidence PW7 gave about the BVAS machines and screenshots can be found on the third and fifth lines of the proceedings after the second signature of the Tribunal members, thus:

Line 3:

“PW7: I have 207 printouts and 207 machines instead of 218 machine”

Line 5:

“PW7: The machines are in court here. These are the printouts”.

Even to the uninitiated, the above cannot represent any form of demonstration of the BVAS machines and documents described as screenshots. PW7 made no reference whatsoever to any of the four polling units where over-voting was alleged, how much more demonstrating the particular BVAS machines for the said polling units so as to dislodge the contents of the Form EC8As. Therefore, the lower court was correct when it held at page 4117 of the record that:

“PW7 indeed produced the BVAS machines as requested but the same where not demonstrated before the Tribunal.”

“To further reinforce the very unusual situation which played out at the Tribunal in respect of the non-demonstration and non-availability of the BVAS machines for evaluation, we draw the court’s attention to the fact that, on the same 27th July, 2023, the appellants as petitioners applied for the BVAS machines to be taken away from the Tribunal’s custody and returned to INEC on the same day as borne out from the proceedings at page 3321 Vol.5 of the record thus:

“J.S. Okutepa, SAN: I want to apply that after the cross-examination the BVAS machine, the physical machine should return to INEC through PW7 who came to court and content admitted.

A. Ogah: We are not opposing for returning the machine.

Wole Olanipekun, SAN: We have no objection to the document being taken to INEC. Mathew Burka, SAN: I have no objection.

COURT: Order granted as prayed.”

“As the court will see from the subsequent proceedings of the said day at pages 3322 to 3323 Vol.5 of the record, no further reference was made to the BVAS machines up until the end of the testimony of PW7. Therefore, at the instance of the petitioners, the BVAS machines were not available to the trial Tribunal and the lower court for evaluation. Be it noted that, by virtue of section 47(2) of the Electoral Act, accreditation can only be done by an electronic device which is the BVAS machine. Thus, at appellants own prompting, it denied the court the opportunity to evaluate the most important document in proof of accreditation and by extension, over-voting. This is further cast-iron proof that the BVAS machines were not demonstrated since no subsequent witness, after PW7, reproduced the said machines and gave evidence about them at the trial Tribunal. If the BVAS machines were not available to the Tribunal for evaluation at the stage of writing the judgment, it naturally was not available to the lower court as well as this Honourable Court. In Reverend King v. State (2016) LPELR-40046(SC) (Pp. 38 paras. D) an appeal was defined as “an invitation to a higher Court to review the decision of a lower Court to find out whether on proper consideration of the facts placed before it and the applicable law, the lower Court arrives at a correct decision.” Per Ngwuta, J.S.C.

“Since the appellants herein secured the order to return the BVAS machine to INEC such that it was not available to the lower court for evaluation, it naturally follows that the said machines were not part of the exhibits transmitted to this Honourable Court. Therefore, the vires of this Honourable Court to evaluate evidence on over-voting is gravely hampered such that the only conclusion that can conduce from the scenario is that there is no proof to sustain a claim of over-voting. The importance of availability of evidence is that, in regular civil proceedings, appeals in respect of issues of evidence are those of mixed law and fact that require leave. However, where a court utilizes evidence that is not before it, it eventuates an opportunity to appeal as of right. See Pius v. State (2016) LPELR- 40657(SC) (Pp. 39 paras. C). This is how serious availability of evidence for evaluation is. How much worse in this circumstance where the most important element to prove over-voting is not available for evaluation because the appellants applied for and obtained an unchallenged order that the evidence should be taken away from the court.

“Relating the foregoing submissions to the pleadings, may we refer the court to paragraphs 79, 81, 82, and 83 of the petition at pages 45 to 83 of the record to demonstrate the point that the case of over-voting failed from the pleadings where no allegation was anchored on the BVAS machine which is the primary document for accreditation. The entire pleadings were based on what “the BVAS Report indicated”. There was no pleading that the number of votes recorded in Form EC8A exceeded the number of voters accredited by the BVAS machines. It is this misconception, with respect, that has led the appellant to variously argue under their issue 3 that there can be a substitute for the BVAS machine. They were specific in paragraph 5.1 page 25 of their brief, that the decision of this Honourable Court in Oyetola vs INEC (supra) is authority to dispense with the BVAS machine improve voting for other alternatives. We submit, with respect, that a consideration of the decision in Oyetola vs INEC (supra) will demonstrate this to be untrue. Assuming without conceding that the same is true, the appellants presented no valid alternative to the BVAS machine. At page 171 of Oyetola vs INEC (supra), this Honourable Court, per Agim, JSC held thus:

“the collation by virtue of regulation 48(a) of INEC Regulations and Guidelines (supra) a presumption arises from the collation of the polling unit results that the number of accredited voters recorded in the results in Form EC8A agrees with the record of accredited voters in the BVAS. The petitioners cannot rebut this presumption without producing the BVAS machines in evidence…for practical purposes and for ease of reference, an original or certified true copy of an INEC certificate of the record of number of accredited voters of the BVAS for each polling unit can be produced from an examination of the record of the BVAS machines and tendered in evidence along with the BVAS machines. In any case, regulation 48(a) having expressly and specifically mentioned the electoral documents or instrument with which the number of accredited voters recorded in Form EC8A is to agree with or to be compared with only that document and no other shall be evidence for that purpose“

“The above unequivocal position of this Court puts the indispensability of the BVAS machine beyond cavil contrary to the appellants’ position. By the said decision, any record of an examination of the BVAS machine can only be supplemental to the BVAS machines and not an alternative/replacement. At page 187 to 188 of Oyetola vs INEC (supra), this Honourable Court, per Okoro, JSC reiterated the importance of the BVAS machines, thus:

“Whenever it is alleged that there is over-voting in an election, it is my view that the document needed to prove over-voting are the voters register to show the number of registered voters, the BVAS to show the number of accredited voters and the Forms EC8As to show the number of votes cast at the polling units. These three documents will show exactly what transpired at the polling units. Failure to tender these documents would be fatal to any efforts to prove over-voting…the BVAS machines, although the appellants failed to tender same, were tendered by the 1″ respondent but there is no evidence that the tribunal opened them to confirm the report in the BVR. Those BVAS tendered where the real exhibits to prove over-voting when compared with the results in the Form ECSAs.”

“Tijjani Abubakar, JSC, in his Lordship’s contribution at page 197, held thus:

“…to establish over-voting, the candidate alleging over-voting must tender the voters register to show the number of registered voters, he must also tender the BVAS to show the number of accredited voters for the election and Forms EC8A…Any failure to tender these as exhibits will render the case of the person alleging over-voting fickle, fragile, barren and totally unreliable. I therefore agree on this point that the case of the appellant is not deserving of any positive consideration by this Court. I totally agree that the appellants failed to establish their case before the tribunal.”

“Demonstrable from the above consistent positions of the Honourable Justices of this Court who sat in Oyetola vs INEC (supra) is that the isolated quote at page 25 of appellants” brief to advance a course that the BVAS machine is not compulsory to be put in evidence is not sustainable. It is understandable that the appellants are going through the said route because they were the ones that made the BVAS machines unavailable by failing to demonstrate same and securing a court order for their return.

“In Oyetola vs INEC (supra), the respondents to the petition, upon failure of the petitioners to tender the physical BVAS machines, proceeded to tender same but, as can be seen in the decision of Okoro, JSC (supra), the said BVAS machines were not opened. Abubakar, JSC reiterated the point at page 197 paragraph H as follows:

“The 1^st Respondent played the role of the appellant by tendering the BVAS machines, the tribunal did not open and consider the contents of the BVAS for the purposes of comparison with the EC8A from the polling units.”

“The foregoing shows that it is not enough to tender the BVAS machines. They must also be opened and demonstrated so as to relate their content to the Form EC8A. We had earlier referred to the terse testimony of the PW7 before the Tribunal on 27 July, 2023 when he brought the BVAS machines and took them away without opening same so as to compare with the EC8A. In the said circumstance, the decision of the lower court at page 60 of its judgment that the BVAS machines were not demonstrated cannot be faulted.

From paragraphs 5.35 to 5.39 of their brief, appellants have argued that the content of the BVAS machines were demonstrated by what they described as “BVAS screenshots”. These submissions clearly misconceive the fundamental basis of the doctrine of demonstration. Demonstration is a function of oral evidence such that documentary evidence cannot be used to demonstrate documentary evidence. Demonstration of evidence is to avoid the consequence of the evidence being considered as dumped. Which is why a party needs to lead oral evidence to connect evidence on record to specific parts of its case as pleaded. In Abdulrazak v. Saraki (2016) ALL FWLR (Pt. 864) 1913 at 1958 to 1959 this Honourable Court explained the concept of demonstration via oral evidence thus:

“The Appellant cited some cases decided by the Court of Appeal and the Supreme Court on documents speaking for themselves when tendered in evidence. It might well be so, but as rightly submitted by learned senior counsel for the 1^st Respondent, that in election petition litigation whilst the certified true copies of INEC electoral forms or documents and any other document may be tendered from the bar or through a witness, the maker or somebody that participated in the making of the entries in the documents should be called to give evidence to tie it to the allegations, whether civil or criminal contained in the petition so that he may be cross examined for it and that failure to do so will amount to dumping the documents on the Tribunal.” See also Maku v. Al-Makura (2016) LPELR-48123 (SC) 56 to 57 where this Honourable Court held that demonstration to link and tie documents to necessary parts of the case must be done in open court “through credible oral evidence”.

“Apart from appellants conceptual misapprehension of the legal requirement of demonstration, we submit that appellants innovation of what it described as “BVAS screenshots” is not a document known to law. There is no judicial precedent of utilization of the said document, neither has it been created or referred to anywhere in the Electoral Act. Therefore, such document that has not been created by any law, cannot dislodge Form EC8A which is not only created by law but to which the law inputs and ascribes a presumption of genuineness. PW7 who brought the “screenshots” to court, did not explain what they were or the process of making them in his terse oral evidence. Exhibit SUB307 which is the subpoena requesting for the said screenshots also merely referred to them as “screenshots printout” without describing what such screenshots mean or the procedure for printing out a screenshot. Assuming the court is permitted to speculate and presumes that he screenshot is a picture of the screen of the BVAS machine, further questions arise, including when the said pictures were taken or at what stage of the election process the pictures were taken? especially when the screenshots do not carry the date and time they were made. How is the court to confirm if the screenshots were taken at the polling units, at the commencement of accreditation, in the course of accreditation, at the conclusion of accreditation or even long after the election? This is more so that, under cross-examination by LO Ogah, PW7 stated at page 3322 of the record in respect of the BVAS machines, thus:

“The machine was operated by presiding officer and not by me.”

“The lower court was thus correct when it also held at page 60 of its judgment that:

“The BVAS screenshots printout were not demonstrated before the tribunal, but simply dumped before the Tribunal”.

“Appellants argument in paragraph 5.36 on the applicability of section 84(b) of the Evidence Amendment Act, 2023 is a new issue which they cannot raise for the first time before this Honourable Court in the way that they have done and the court is urged to discountenance same. Furthermore, the said section 84(b) of the Evidence Act does not dispense with the need for demonstration because demonstration of evidence is a derivative of the need to avoid documentary hearsay pursuant to section 37 of the Evidence Act. Demonstration is also anchored on both section 6 and 36 of the Constitution which disallow a court from privately interrogating documents that were not demonstrated to it in open court and subjected to cross examination. Further consideration of section 84(b) of the Evidence Act will show that its provisions are unfavorable to the appellants. At best, the BVAS screenshot can be evidence of the content of the camera with which the screenshot was taken and not proof of record of accreditation in the BVAS. If anything, section 84(b) of the Evidence Act (as amended) in relation to this case escalates the need for demonstration and explanation of the BVAS screenshot, especially when same is not an electoral document or its function/means of production stated in any law. Further, the said section 84(b) merely permits admissibility of the paper, such that, production of the computer is not a condition precedent for the admissibility of the paper. It does not dispense with the primary source. Alternatively, section 84(b) does not cover a situation where the actual BVAS machines were available and brought to court but the party making a case on it refused to demonstrate it or allow the court to retain it for evaluation. This is more so where there is a legal presumption that the ECSA record is the same as what is contained in the BVAS. Thus, in the peculiar circumstance where appellants are disputing the EC8A, it is only the actual record in the BVAS machine that can dislodge the EC8A entries. This is more so as BVAS screenshot is not a record of accreditation in the BVAS machine and no such evidence that it is was before the court. There was no evidence of the time and the stage of the election when it was taken to show whether accreditation had been completed or not. Where the content of the BVAS machine is in issue with EC8A and the screenshot containing varying/different records, not only will the EC8A as an express creation of law take precedence and priority, only the actual/original BVAS machine itself can dislodge the record in the EC8A and section 84(b) of the Evidence Act offers no help for the appellants and the screenshot in this situation.

“The court could not have put the so-called screenshot to any use whatsoever in the face of the various uncertainties around it arising from its non-demonstration, how much more using such document that is unknown to law in rebuttal of the presumption enuring in favor of the Form EC8A. To cap off the lack of utility to the appellants of the entirety of PW7s testimony, under cross examination by Wole Olanipekun, SAN, at page 3322 of the record, PW7 pointedly stated thus:

“I have been working with INEC 2007. I agreed that the governorship election conducted in Nassarawa State on 18-3-23 was fair and substantial in compliance to the provision of Electoral Act, INEC Manual and Regulations”.

“Such unequivocal evidence of substantial compliance in respect of the election is an admission against the interest of the appellants pursuant to section 20 of the Evidence Act which must be given its full effect and in respect of which they cannot resile from. Odi v. Iyala (2004) 8 NWLR (Pt. 875) 283 @ 308 paras. D-E; Onisaudu v. Elewuju 2006) 13 NWLR (Pt. 998) 517 pages 329 to 330 pagras. G-A. In Doma vs INEC (2012) 13 NWLR (Pt. 1317) 297 pages 322 to 323 paras. G-B which related to a prior governorship election in the same Nasarawa State, this Honourable Court held that a petitioner must swim or sink with such unfavourable testimony given by its own witness. If there was any demonstration at all at the Tribunal, it was the testimony of PW7 that the election was in substantial compliance with the Electoral Act. The full effect of this piece of evidence must be brought to bear on the appellants the same way they must live with the consequence of their failure to demonstrate the BVAS machines as well as their voluntary choice to apply for a court order that the BVAS machines be returned to INEC without demonstration of any sort and the grant of which has made the said machines unavailable to this Honourable Court for evaluation or re-evaluation as well as constituting a fatal failure in producing by far the most important document in proof of number of accredited voters.

“Premised on the above, we urge your Lordships to resolve this issue in favour of the respondents by affirming the decision of the lower court which held that the appellants failed to prove over-voting as stipulated by law. The court will note that the Tribunal at pages 114 of its judgment (page 3526 Vol.5 of the record) in respect of respondents complain of over-voting in places where the appellant won, held that Oyetola vs INEC (supra) mandated that BVAS machine is one of the documents that must be presented in proof of same and that respondents failed woefully to produce the required proof. Yet, subsequently at pages 125 to 128 of the same judgment (page 3537-3540 vol.5 of the record), it made references to BVAS machines of the four polling units where appellants made allegations of over-voting as if the BVAS machines were demonstrated before it or available to it on 2nd October, 2023 when delivering its judgment. The Tribunal was also referring to the BVAS screenshots which are not electoral documents and which were not demonstrated before it nor did any witness give evidence that they were records from the inspection of BVAS machines. In the circumstance, we urge the court to decline appellants invitation to reinstate the judgment of the Tribunal and we reiterate that, a resolution of this issue suffices for the dismissal of this appeal since the said 1,868 votes challenged on the score of over-voting and rightly reinstated by the lower court, is far higher than the margin of lead of 841 with which the Tribunal erroneously overturned the return of the respondent.”

ISSUE 4

“We submit with the greatest respect that the lower court was on the right footing when it set aside the decision of the trial Tribunal in the circumstances of the case before it. In addressing this issue, we consider it necessary to adopt our arguments on all the preceding issues as appropriate, while submitting that the final orders of the lower court setting aside the decision of the trial Tribunal and affirming the respondent’s election cannot be faulted under any ground, whether of law or facts. Noting that every aspect of the trial Tribunal’s decision would necessitate its impeachment by a reasonable panel, the whimsical summary condemnation of RW1-RW22 is one critical instance that cannot be overlooked.

“Without considering the evidence of RWI-RW22, the trial Tribunal in its judgment (particularly, at page 3531 of the record) descended on these witnesses, describing them as not being “witnesses of truth” and that “their evidences (sic) are full of lies and contradictions that no reasonable Tribunal will believe them.” The very pertinent point on this, is that while none of RW2-RW22 had given any evidence in respect of Ashigie Ward which was the subject of the Tribunal’s consideration at the time and the context of the aspersive remarks, the trial Tribunal had not at any point in its judgment, earlier impeached the evidence of any of the witnesses, whether as a result of facts elicited under cross examination or its own observation. In fact, whereas, the trial Tribunal, reviewed in extenso, the evidence of all the petitioners’ witnesses all across the judgment, it did not review the evidence of any of the appellant’s witnesses. It then remains a puzzle, how the trial Tribunal came to the conclusion that they were not witnesses of truth and that their “evidences (sic) are full of lies and contradiction.” The trial Tribunal neither pointed to a single lie or contradiction in any of the evidence given by these witnesses, even though it had the duty of giving reason for its findings in respect of these witnesses and this was the point made to the lower court while placing reliance on A. G. Leventis (Nig.) Ple v. Akpu (2007) 17 NWLR (Pt. 1063) 416 at 447 and Segun v. State (2022) 6 NWLR (Pt. 1826) 389 at 415- 525. In Segun v. State (supra), the apex court held thus: “It is of fundamental importance that reasons be given for conclusions and decision. This is because it is the reasons that show that the conclusion and decisions are derived from a consideration of the case before the court and show the reasoning process that resulted in the conclusion and decisions. Without the reasons, the conclusions and decisions would clearly be baseless and perverse. The lack of reasons render the conclusions and decisions products of intuitiveness, irrationality and arbitrariness.”

In Kanu v. A.-G., Imo State (2019) 10 NWLR (Pt. 1680) 369 at 390, this Honourable Court condemned this kind of attitude in the following words:

“…when there are materials before the Judge upon which he had to assess the evidence before him, it is not enough for him to say that he believed a particular witness (or set of witnesses) and disbelieved the other witness (or set of witnesses) without proper evaluation upon which he based his decision, preferring one evidence to the other: Sagay v. Sajele & Ors. (2000) 4 SC (Pt. 1) 187; (2000) FWLR (Pt. 7) 1111,(2000) 6 NWLR (Pt. 661) 360. When evidence on any issue, by two opposing sides, are in conflict it behoves the court, before preferring the evidence called by one side to the other, to put the two sets of evidence on any imaginary scale, weigh one against the other, then decide upon the preponderance of credible evidence which out weighs the other. Itis only after proper evaluation that the court can reasonably accept the evidence proffered by one side in preference to the other and then apply the appropriate law to it: Mogaji v. Odofin (1978) 4 SC 91; Bello v. Eweka (1981) LPELR – 765 (SC). Guided by this laudable principle, I think the lower court erred, when without proper evaluation of the evidence of the appellant, DW.1 and DW.2 viz-a-viz the evidence of the PW.4 and PW 5, it preferred the evidence of the latter and dismissed the alibi of the appellant.”

“What is more staggering is the fact that the trial Tribunal did not reach a similar finding in respect of the petitioners’ witnesses who gave very conflicting and contradictory evidence, but rather, it excused every inadequacy of the petitioners as “human error and slit ups” as well as “trivial and thrilling mistakes.” With particular respect to PW22, he admitted under cross examination by the appellant’s counsel that his deposition is riddled with serial errors/mistakes, especially as it relates to the statistical assertions. The trial Tribunal, with all respect, did not find the evidence of this witness as “contradictions.” While nothing could better describe the decision than the fact that it is a perverse one, it became incumbent on the lower court at page 4125 (vol. 6) of the record, to conclude thus:

“In the instant case, there is no reason given by the Tribunal as to how the conclusion that RW1-RW22 are not witnesses of truth. I hold the view that the summary dismissal of the evidence of the Appellant’s witnesses is perverse.”

“In seeking to impeach this rather well reasoned decision of the lower court, one would have expected that the appellants will point to pages of the judgment where the trial Tribunal had evaluated the evidence of the said witnesses before coming to its conclusion. Rather, at paragraph 5.65 of the appellants’ brief, all they could manage to state was that “the reason the court below alluded to was that the evidence could not be acted upon because the witnesses were not witnesses of truth.” It is at this point that the appellants proceeded to assist the trial Tribunal in contriving reasons that the latter could not adduce, by going further at paragraph 5.66 of their brief to suggest that the evidence of the said witnesses contradicted certain documents before the court. We submit with the greatest respect to the appellants that if they desired to defend the decision of the trial Tribunal, they had the duty presenting it as it is, as opposed to setting up a different judgment for the trial Tribunal, cher than the one contained therein. The appellants’ submission could only have been tenable if they had pointed to any portion of the judgment of the trial Tribunal, where the said Tribunal demonstrated the fact of the said conflict between the evidence of the witnesses in question and the documents highlighted by the appellants, before then ascribing the strictures to such conflicts. Alas! There was nothing of such. Certainly, if the appellants had desired to augment the decision of the trial Tribunal by their own reasons, they definitely would have filed a Respondent’s Notice before the lower court.

“In addition to the foregoing, the appellants’ (as petitioners) dereliction in their evidential duties before the trial Tribunal, serves as another clear reason why the lower court rightly set aside the decision of the trial Tribunal and affirmed the respondent’s election. The records clearly indicate that the appellants failed in their duty of proving all allegations contained in the petition on the requisite standards of proof and the lower court could not have shut its eyes to this obvious state of affairs. As earlier identified in this brief, PW5, Pw6, PW7, PW8, PW12, PW13, PW20 and PW21’s evidence was expunged on account of their violation of the clear provision of section 285 (5) of the Constitution and paragraph 4(5)(b) of the First Schedule to the Electoral Act, 2022. It goes without saying that the documents tendered through these witnesses ought to, and were accordingly expunged. For clarity, the documents are Exhibits BV1-BV207; SP01-SP0209; LD1,

LD27, LD28, PS, PSI-PS60, PS67, 68A, 68B, LA3, RA8, RA9, 109-211, 109, IDIO, IDII, B62, SUB325-SUB420; SUB1-SUB15, A21-A230, SUB16, SUB17, KA, A231, SUB25, SUB26-SUB30, SUB31-SUB35, SUB283-SUB304, SUB307, BVI-BV207, SP01-SP0207, 308, 309, SUB38, L2, 1D3, SUB39, SUB40, SUB41, SUB42, SUB43, SUB305, ID9, ID10, ID11, ID13, ID14, SUC306, PS, PS1-PS60, PS67-PS68, PS68B, 1310, ID27, 311-323, 324-331, 332-335, SUB310, ID28, R8, R9.

“Given this development, it became imperative for the lower court to carry out an integrity test of the sustainability of the appellants’ case after the expungement of the said very crucial documents. Accordingly, the lower court at page 4104 raised a poser which was also swiftly resolved as follows:

“I am left with the evidence of PW1, PW2, PW3, PW4, PW9, PW10, PWII, PW14, PW16, PW17, PW18, PW19 and PW22. The question then is whether the same can sustain the judgment of the tribunal. From the record, the judgment of the court is predicated on over-voting and improper transfer of the scores in Form ECSA to Form EC8B thereby increasing the numbers of votes scored by the Appellant while reducing that of the 1st and 2nd Respondents. Having expunged the exhibits on the basis of which these deductions were made, it is my view and I hold that the evidence cannot sustain the judgment of the Tribunal.”

“Beyond the foregoing, the lower court also identified the fact that the evidence of PWI- PW4, PW8-PW12 and PW15-PW22 relied upon by the lower court was hearsay and inadmissible. However, the appellants in their brief, isolated the evidence of 4 witnesses (that is, PW12, PW13 and PW16), thus, conceding to the incompetence or inadmissibility of the evidence of the other witnesses. Be that as it may, we have earlier pointed out that the evidence qua statements on oath of PW12 and PW13 was not frontloaded with the petition. Hence, the lower court had earlier at page 4102 (vol. 6) of the record, held that “From the record of the court, the written statements on oath of PW5…PW12, PW13… were not frontloaded and thus their evidence cannot be admitted to vary the content of the petition.” The propriety of this decision of the lower court had earlier in this brief been established and we submit that the appellants have not been able to impugn the reasoning of their Lordships of the lower court. One, therefore, wonders the basis for the appellants’ contention that the said witnesses were competent witnesses. On the other hand, even assuming without conceding that their testimonies could be countenanced by the trial Tribunal, the witnesses are such that are grossly unbelievable. For instance, while PW12 had initially introduced himself as an agent of PRP, under cross-examination by Ishaka Dikko, SAN at page 3309 of the record, he claimed thus: “I am not an agent of Polling Unit but I am sure that my party, PDP we have 58 Polling units and they brought their copies.” Clearly, the trial Tribunal ought to have discountenanced both versions of the contradictory testimonies as the lower court rightly did, since it could not pick and choose which version to believe. For PW13 who claimed to be a collation agent for the political party AA in Chiroma ward, under cross-examination, he admitted that Exhibit ID4, which was tendered as proof of his appointment, had nothing to do with agent position. (see page 3313 of the record); the testimony of PW16 was pummeled during cross examination. The court will observe that this witness claimed on page 88 of the record to have acted as the 2nd petitioner’s agent at the Chiroma electoral ward. However, at pages 89-104 of the record, the witness went all out to give evidence of the occurrences and scores in 103 polling units as well as the evidence of Gayam polling unit where he was not an agent Under cross examination at page 3326, vol. 5 of the record, the witness admitted that his “scope of duty as ward collation agent of PDP never extended to Gayam” and that his “work that day was not to monitor Form EC8As and Form EC8Bs.” Under further cross examination at page 3327, vol. 5 of the record, he admitted the various irregularities on Exhibits SUB 196, SUB227, SUB230, 226, 227 and 228, which he sought to rely upon.

“It beats every imagination that it is upon the testimony of this kind of witness that the appellants seek an affirmation of the judgment of the trial Tribunal where scores had been whimsically recomputed by the tribunal in the recess of their chamber and without any evidence to that effect. The decision of this Honourable Court in Sokoto v. INEC(2022) 3 NWLR (Pt. 1818) 577 at 595-596 is very apposite in this regard, where the apex court succinctly held thus:

“In the instant appeal, the appellants as petitioners tried to prove their petition by witnesses and documents tendered herein referred to as exhibits. An exhibit is a document or thing shown to witness and referred to by him in his evidence…It has been loudly decried and excoriated by this court that documents cannot be dumped on the court. It is not the duty of the court to proceed through documents tendered by parties which were not demonstrated in open court. It is not the duty of the court to sort out the various exhibits, the figures and do the calculation in chambers to arrive at a figure to be given in judgment particularly in an election which is challenging the number of valid votes scored by a candidate declared and returned as the winner of the election. A party tendering documents has the duty to ensure that such documents qua exhibits are linked to the relevant aspects of his case to which they relate.”

The said decision of this Honourable Court invariably neutralizes all the arguments strenuously canvassed by the appellants in an attempt at rationalizing their dumping of documents on the trial Tribunal. Notably, they have sought succor under paragraph 46 of the First Schedule to the Electoral Act, suggesting that documents were meant to be taken as read. To start with, the documents which had already been rightly expunged by the lower court could not have been taken as read. In Kwenev v. State (2022) 13 NWLR (Pt. 1847) 273 at 319, this Honourable Court held that “the resultant effect of an exhibit being expunged from the record is that such an exhibit should be regarded as if it had not been tendered and admitted… Thus, it cannot be legal evidence upon which the court can properly make a finding of fact. Also in Olayinka v. State (2007) 9 NWLR(Pt. 1040) 561 at 577, this Honourable Court restated the fact that “the court cannot rely on it in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse and an appellate court faced with a situation has a duty to intervene.”

“In any event, had the appellants properly appreciated the effect of the provision of paragraph 46 of the First Schedule to the Electoral Act, they would not have attempted to rely on it in their attempt at faulting the decision of the lower court. We respectfully submit that taking documents as read does not absolve parties of the obligation of demonstrating each document tendered and linking them with the relevant portions of their cases. This is notwithstanding the provision of section 137 of the Electoral Act, which has repeatedly been determined by this Honourable Court in cases such as Ovetola v. I.N.E.C. (2023) 11 NWLR (PL. 1894) 125 at 193 and SC/CV/1130/2023- Edeoga Chijioke Jonathan & Anor. v. Independent National Electoral Commission & 2 Ors, delivered on 22nd December, 2023. It is our submission that this demonstration could only have been done by relevant persons who saw each of the alleged incidences at the respective polling units and wards. Of course, authorities of this Honourable Court in this regard are multifarious, but we shall respectfully refer to a few, starting from Ekere v. Emmanuel (2022) 11 NWLR (Pt. 1841) 339 at 360, where this Honourable Court succinctly held thus:

“It is no longer in contention that the appellants only dumped the various documents on the tribunal. They failed to call the makers of the documents or other witnesses through whom the documents are tendered and admitted, in guiding the tribunal through oral evidence, to demonstrate openly in court what the documents are all about.

“It is never the task of a tribunal or court of law to conjecturally determine what the documents tendered by a claimant relate to or the purpose the documents are meant to achieve. The court only adjudicates.”

“Also, in Andrew v. I.N.E.C (2018) 9 NWLR (Pt. 1625) 507 at 558, this Honourable Court held thus:

“Without much ado, I agree with the view expressed by the court below in this matter. Both the trial Tribunal and the lower court have stated clearly in their judgments that the stated exhibits were not demonstrated in the open court by the appellants and their witnesses My attention has not been drawn to any part of the record showing the contrary state of affairs at the trial. So, believe the views of the two courts below to be the true position.

Let me lend my voice to the trite position of the law which has been expounded in this court severally that tendering documents in bulk in election petition is to ensure speedy trial and hearing of election petitions within the time limited by statute. But that does not exclude or stop proper evidence to prop such dormant documents. As this court stated in A.C.N. v. Lamido (2012)8 NWLR (Pt. 1303) 560 at 592, paras. C- F, it is not the duty of a court or tribunal to embark on cloistered justice by making enquiry into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator, not an investigator. I need to state clearly that demonstration in open court is not achieved where a witness simply touches a bundle of numerous documents with numerous pages.”

“The trial Tribunal was obviously conscious of this trite position of the law, hence, at same page 3249 of the record being referenced by the appellants, the trial Tribunal had mandated that “witnesses shall be led in evidence or examined in one breathe in relation to all documents to be tendered through them and all the documents shall be tendered from the bar and taken as read.” In effect, therefore, the trial Tribunal appreciated the necessity of tendering all documents through relevant documents, as well as the essence of examination in respect of the said documents. In Anyanwu v. P.D.P. (2020) 3 NWLR (Pt. 1710) 134 at 172, this Honourable Court restated the crucial place of cross-examination in the adjudicatory process as follows:

“The objects of cross examination are three in number. The first is elicit something in your favour; the second is to weaken the force of what the witness has said against you; and the third is to show that from his present demeanour or from his past file, he is unworthy of belief and thus, weaken or destroy the force of his testimony… The position of the law is that where an adversary or the witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept his testimony as true, cross-examine him on that fact or at least show that he does not accept the evidence of the said witness as true… Thus, one of the main purposes of cross-examination is to test the veracity of a witness.”

By deliberately keeping competent witnesses away (if there were any) from speaking on these documents, the appellants have deprived the respondents of the benefit of testing the accuracy of the evidence sought to be asserted through the documents that were dumped on the trial Tribunal.

What is obvious from the totality of the proceedings at the trial Tribunal, which formed part of the record of the lower court, was that the evidence of the witnesses was a mixture of hearsay and irrelevances. Parties are ad idem that the crux of the appellants’ case at the trial Tribunal was that the scores garnered by the parties at the respective polling units conflict with the scores at the ward level. From this state of facts, it is indisputably clear that the appellants needed to prove that the scores they were asserting as being the correct scores from the respective polling units were in fact, garnered from the polling units, before proceeding to demonstrate that further to the legitimate acquisition of the said scores from the respective polling units, they were not properly entered at the ward level. Quite surprisingly, the appellant has made very frantic effort at suggesting that the lower court ought to have agreed with the trial Tribunal to the effect that evidence of what transpired at the polling unit, which can only be competently adduced by a witness at the polling unit, was unnecessary. While the lower court at pages 4128-4134 (vol. 6) of the record, painstakingly examined the evidence of the said witnesses and highlighting how incompetent they were, it concluded at page 4134 of the record thus:

“The evidence of all the witnesses was hearsay and or inadmissible. In all, I hold that the evidence adduced by the 1 and 2nd Respondents as Petitioners through PWI- PW4, PW8-PW12 and PW15-PW22; to impugn the Appellant’s votes in Chiroma and Gayam wards was not legal evidence.”

While we have earlier under this issue, shown how the evidence of PW16 manifestly proceeds from hearsay, the appellants have not shown how any of their witnesses (particularly, PW 12, 13, 16 specifically referenced by them) could have validly given evidence in respect of the occurrences at the polling unit. In Ifaramove v. State (2017) 8 NWLR (Pt. 1568) 457 at 480, this Honourable Court held that “a court is enjoined to decide a case on legal evidence only” In the absence of such legal evidence on record, therefore, the lower court could only have set aside the decision of the trial Tribunal in the manner it did. We accordingly urge this Honourable Court to resolve this issue in favour of the respondent and against the appellants.

ISSUE 5

We submit that the lower court was correct in setting aside the Tribunal’s re-computation of the votes of the parties considering the very unreliable evidence on which the Tribunal based its decision. We adopt our arguments under Issues 1 and 4 herein and reiterate that the case on re-computation of votes cannot succeed in the light of the lower court expunging the evidence and documents produced by subpoenaed witnesses who had no witness states filed along with the petition. The affirmation of the lower court’s decision in this regard will suffice to resolve this issue in favor of the respondent.

In progressing our arguments, may we draw your Lordships’ attention to the very heart of this issue by taking our bearing from the portion of the judgment of the Tribunal which was rightly set aside by the lower court. At page 3547 of the record, in the relief labelled as “h”, the Tribunal granted an order as sought by the appellants as petitioners that “upon a proper computation of all the polling units result… the 1st petitioner was duly elected” This order of the Tribunal was based on its erroneous reliance on the evidence of PW1- PW4, PW8-PW12 and PW15-PW22 to deduct over 50,000 votes of the respondents in respect of over 200 polling units. In arriving at its decision, the Tribunal had held as follows:

“…the Petitioners do not need to call the polling agents…what is important is that for the evidence of events of a polling station or other level in an election to be admissible it must come from any competent witness who was present and saw or heard or perceived the occurrence at the event.” Underlining ours for emphasis. (See page 3524 of the record Vol.5).

“The above finding of the Tribunal bears eloquent testimony to the error inherent in the Tribunal’s judgment as, contrary to its own reasoning, the witnesses whose evidence it heavily relied upon were not present at the polling units to enable them to see, hear or perceive any occurrence at the respective polling units on election day in any capacity whatsoever. Whether as polling unit agents or as ordinary eyewitnesses, the sine qua non to their being competent to testify regarding events at the polling units is that they are physically present in the respective units. This being the case, the lower court was right to have corrected the Tribunal’s error when, after meticulously reviewing the record of proceedings at the Tribunal and finding correctly that none of the witnesses were physically present at the respective polling units on election day (see pages 4128 to 4134 of the record), it held emphatically thus:

“From the foregoing, it is obvious that none of the witnesses called by the 1 and 2 Respondents gave legal evidence that the Tribunal could have acted on. The evidence of all the witnesses was hearsay and or inadmissible. In all, I hold that the evidence adduced by the 1″ and 2nd Respondents as Petitioners through PW1-PW4, PW8-PW12 and PW15-PW22; to impugn the Appellant’s votes in Chiroma and Gayam wards was not legal evidence.”

“The above finding of the lower court is unimpeachable, hence, the appellants herein have struggled to make any valid case against it. Nowhere in their 15-paragraphs submissions challenging the said finding (paragraphs 5.47 to 5.61 on pages 26 to 31 of their brief) have they claimed that the referenced witnesses were present at the respective polling units they purportedly gave evidence on. Thus, their bare submission in paragraph 5.57 of their brief that “the Appellants did not give hearsay or inadmissible evidence” is, with respect, watery. Since the witnesses were not present at the respective polling units, they could not have given any evidence other than hearsay evidence of occurrences at those polling units. See Gundiri v. Nyako (2014) 2 NWLR (Pt. 1391) 211 at 245 paras. C-D and Okechukwu v. INEC 2014) 17 NWLR (Pt. 1436) 255 at page 299 paras. B-C. In Oke vs Mimiko (2013) LPELR-21368(SC) (Pp. 46-47 paras. B-B), this Honourable Court, per Peter-Odili, J.S.C, put it succinctly thus:

“Even though the 1st Appellant was at liberty to perform the duty of polling Agent for himself and his party, being human he can only be physically present at only one polling unit at a given time and so cannot perform the same task with the same title as polling agent in any or all the other polling units and so when the evidence is to be provided as to what happened in disputed units other than the one he is physically available at then he is not qualified to testify thereto.

“The above dictum of the learned law Lord represents the law and completely pulls the rug from under the appellants’ submissions at paragraph 5.50 of their brief that “all the witnesses did was to identify the documents and same was tendered through them. These documents were not disputed by the Respondents as there was no contrary document placed before the court to impeach their admissibility or weight as the case may be.”

“Having not been present at the polling units, the referenced witnesses could not have lawfully “identified” the documents since identification, in the first place, is required by law to be based on knowledge of the contents of the documents which knowledge can only be valid and reliable if based on firsthand testimony of events at the said polling units. Having been absent at the respective polling units, the foundation on which the said witnesses could validly identify, tender, or speak to electoral documents relating to those polling units was non-existent in law. The jurisprudence of sui generis election petition is settled on the point that polling unit results can only be competently identified/demonstrated by a witness who is either an officer of INEC, an INEC accredited agent or an eyewitness at the respective polling units. See Andrew & Anor v. INEC & Ors (2017) LPELR-48518(SC) (Pp. 74-75 paras. E). In Buhari v. INEC & Ors (2008) LPELR-814(SC) (Pp. 172-173 paras. E), this Court per Tobi, JSC put this matter to bed, thusly:

“A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify to the illegality or unlawfulness of the votes cast and prove that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election; not those who picked the evidence from an evewitness. No. They must be eyewitnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents.” (Underlining ours for emphasis).

“Having elected to present persons who had no business with the respective polling units to identify and tender polling unit results in those units, both the identification and the tendering became a nullity in law in line with the sacred principle that one cannot place something on nothing and expect it to stand. See VAB Petroleum Inc v. Momah (2013) LPELR-19770(SC) (Pp. 47 paras. B). The consequence, in the eyes of the law, is that the documents were neither identified nor tendered by any witness before the Tribunal and, as such, the Tribunal lacked the vires to countenance them for any purpose. Thus, the question of whether the respondents tendered contrary documents to impeach the admissibility or weight of those documents does not arise at all. By Section 137 of the Evidence Act, 2011, the burden to prove or disprove a fact only shifts to the respondent when the petitioner has presented lawful evidence in proof of the contrary, particularly in election petition where the reliefs are declaratory in nature requiring the petitioner to establish entitlement to reliefs sought on the strength of his own case rather than on the weakness of the respondent’s defense. See Buhari v. INEC (supra) at Pp. 55-56 paras. C) and Yusuf v INEC (2021) 3 NWLR (Pt. 1764) 551 at page 561 Paras. E-F. What the appellants as petitioners did before the Tribunal with respect to the electoral documents relating to the referenced polling units can, at best, be described as dumping or documentary hearsay since the documents were not demonstrated or linked by any competent witness. The effect of this is the same – the Tribunal lacked the vires to use documents that were dumped on it to deduct the respondents’ votes or for any purpose at all. See Maku v. Al-Makura & Ors (2016) LPELR-48123(SC) (Pp. 56-57 paras. C). Having done so against the settled position of the law as laid down by your Lordships in a plethora of decided cases, the lower court was on firm footing when it set aside the said deductions made by the Tribunal and we urge this Honourable Court to so hold.

“This brings us to the appellants misconceived contention in paragraphs 5.47 to 5.56 of their brief that, based on the provisions of section 137 of the Electoral Act and Paragraph 46(4) of the 1 Schedule to the Electoral Act, there was no need for them to call oral evidence in proof of events at the polling units since they had tendered electoral result sheets in relation to those units. In responding to their submissions, may we, at the risk of repetition, reiterate our preceding submission that the said documents could not have been tendered when the witnesses who purportedly tendered them where incompetent to do so.

“That being said, we submit that neither Section 137 of the Electoral Act nor Paragraph 46(4) of the 1″ Schedule to the Electoral Act, gives the Tribunal the power to act as it did. For starters, whereas section 137 is limited to non-compliance with the Electoral Act, no such ground is contained in the petition. Further, section 137 of the Electoral Act does not permit of a situation where the Tribunal will start piecing documents together and, suo motu, make mathematical computations without oral evidence linking the documents together under the guise of manifest errors. On each of the exhibits, there is no manifest error and where circumstances require interpreting and correlating various documents to see if the additions in the entries align with those in other documents, there definitely would be need for oral evidence. This did not happen in this case as there was no oral evidence from the makers of the dumped documents. This position aligns with the very recent decision of this Honourable Court (unreported) in Edeoga Chijioke Jonathan & Anor. v. INEC & 1 Ors. SC/CV/1130/2023 delivered on Friday, 22nd December, 2023, where your Lordships affirmed the judgment of the lower court in Edeoga Chijioke Jonathan & Anor. v. INEC & 2 Ors. CA/E/EP/GOV/EN/21/2023 (unreported) delivered on Friday, 10th of November, 2023 which had held at page 60 of its judgment that the provisions of section 137 of the Electoral Act do not obviate the need for a petitioner to call competent witnesses to demonstrate documents sought to be relied upon. The position taken by your Lordships in that case echoed your Lordships’ position in Abubakar Atiku & Anor. v. INEC & 2 Ors. SC/CV/935, 2023, (unreported) delivered on Thursday, 26th October, 2023 where this Honourable Court, at page 72-73 of the judgment, stated the position of the law clearly in the following terms:

“Section 137 of the Electoral Act relied upon by the Appellants for their failure to prove non-compliance in the manner we are used to, provides… The above provision has not absolved a petitioner of the need to lead credible evidence to prove non- compliance. It states clearly that oral evidence may not be necessary if and only if originals or certified true copies manifestly disclose the non-compliance. In this case, the Appellants have not demonstrated the originals or certified true copies of documents they want the court to rely on. Given where such documents are tendered in evidence, it has to be shown that they manifestly disclose the non-compliance.”

“The above represents the extant position of the law and renders worthless the appellants reliance on earlier and inapplicable cases of Nagogo v. CPC (2013) ALL FWLR (Pt. 685) 272 at 307; Arabambi v. A.B.I (2005) 19 NWLR (Pt. 959) pg 1 at 29; Tereb v. Lawan (1992) 3 NWLR (Pt. 236) 569 at 592 and; Uzodinma v. Ihedioha (2020) LPELR-50260 (SC).

“Likewise, paragraph 46(4) of the 1ª Schedule does not avail the appellants as, clearly, the said provision can only be activated by consent of parties to treat the documents as read or demonstrated. No such consent exists in the instant case and the appellants have not claimed otherwise. Thus, the Tribunal exceeded its jurisdiction and breached the respondents’ right to fair hearing. It is also significant that allegations of falsification of result as made by the petitioners are criminal allegations, including pursuant to section 64(9) of the Electoral Act which requires proof beyond reasonable doubt. The bulk of the case was actually allegations of false/falsification of results in which situation appellants contention, including at paragraph 5.54 of their brief that they are relieved of eyewitness evidence and that mere documentary evidence will suffice, cannot be a sustainable position of the law since section 135 of the Evidence Act stipulates that the threshold of proof is beyond reasonable doubt. Same was not done at the Tribunal and could not have been done without eyewitnesses or through the Tribunal’s private investigation of documents.

“We, therefore, urge your Lordships to resolve this issue in favour of the respondents.”

Based on the arguments presented in the foregoing paragraphs of this brief, we urge the court to dismiss this appeal as no valid case has been made by the appellants for the re- instatement of the majority judgment of the Tribunal which, with respect, was perverse as rightly found by the lower court. The fault for the failure of the appellants’ petition rests squarely with the appellants who failed at every juncture to adduce appropriate evidence. For instance, how will one explain that a petitioner, under the regime of the Electoral Act, 2022, that intends to make a case of over-voting, causes BVAS machines to be produced at the Tribunal and, without opening or demonstrating the contents of the said BVAS machines, applies on the same day for a court order that the witness who brought the said BVAS machines to the Tribunal should return them, which order was granted as sought; such that, the BVAS machines were not available to the Tribunal, the Court of Appeal and this Honourable Court for evaluation or re-evaluation.

Supreme Court Decides

Following the filing of appeal and responses by all the parties involved, the Supreme Court has set Tuesday January 16, 2024 for hearing.

The ruling is expected to follow soon after the hearing.

Nasarawa State 2023 Governorship Tussle: Who Wins The Final Lap?

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