Nasarawa Tribunal Declares Ombugadu, PDP Winner Of 2023 Governorship Election (Full Story)

…Petition Immaterial And Dismissed, Says Dissenting Judge

…Strikes out NNPP’ case

David Emmanuel Ombugadu, gubernatorial candidate of the People’s Democratic Party (PDP) in the March 18, 2023 election in Nasarawa State has been declared winner by the Governorship Election Petition Tribunal seating in Lafia, Nasarawa State.

However, in a dissenting judgment, Justice Ibrahim I. Mashi described the Petition by David Emmanuel Ombugadu as immaterial and the same is dismissed.

Justice Ezekiel Ajayi, the chairman of the three-man tribunal, delivering a judgment that lasted about 2 hours, 53 minutes, deducted the inflated votes from the scores wrongly credited to Governor Abdullahi Sule of the All Progressives Congress (APC) to PDP’s Ombugadu. This ruling effectively reversed the declaration by the Independent National Electoral Commission (INEC) that Engr. Abdullahi Sule was the winner of that election.

In arriving at its decision, the Tribunal considered the following reliefs sought by the Petitioners: “That it be determined and declared that the 2nd Respondent was not validly elected by a majority of lawful votes cast at the Governorship Election held on 18th day of March, 2023 in Nasarawa State.

“That it be determined and declared that upon a proper computation of all the polling units results where elections held in Nasarawa State on the 18th day of March, 2023, that the 1st Petitioner was duly elected and ought to have been returned.

“That it be determined and declared that the 1st Petitioner, Emmanuel David Ombugadu scored the highest number of lawful and valid votes cast in the election and ought to have been returned and should be returned elected as the Governor of Nasarawa State.

“An Order of this Honourable Tribunal setting aside and withdrawing the certificate of return issued to the 2nd Respondent as the Governor of Nasarawa State.

“An Order of this Honourable Tribunal directing the 1st Respondent to issue certificate of return to the 1st Petitioner and be immediately sworn in as the Governor of Nasarawa State.

“Any further Order(s) as this Honourable Tribunal may deem fit to make in the circumstances,

Thus the tribunal ruled as follows:

The motion dated 30-5-23 was filed and argued at the pre-hearing.

The said application prayed the Tribunal for an Order striking out paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 22, 24, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 41, 43, 44, 45, 47, 48, 51, 52, 53, 54, 57, 58, 60, 61, 63, 65, 67, 68, 70, 68, 70, 71, 72, 73, 74, 75, 77, 78 and 79 of the Petitioners’ reply to the 1st Respondent reply to the petition for being incompetent.

And for such further Order or Order(s) as this Tribunal court may deem fit to make in the circumstances.

The grounds upon which the application is predicated are as follows: (a) That the Petitioners’ reply to the 1st Respondent’s reply to the petition contained repetitive of the petitioners pleading legal argument and raised new issues not contained in this petition.

(b) That specifically, paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 22, 24, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 41, 43, 44, 45, 47, 48, 51, 52, 53, 54, 57, 58, 60, 61, 63, 65, 67, 68, 70, 71, 72, 73, 74, 75, 77, 78 and 79 of the petitioners’ reply to the 1 Respondent reply to the petition offend the provisions of paragraphs 16(1)(a) and (b) of the 1 schedule to the Electoral Act.

In support of the application is an Affidavit of 57 paragraphs deposed to by Augustina Samuel and a written address which was adopted as the counsel’s argument in support of the motion.

In opposition to the application, the Petitioners filed a counter Affidavit on 5-6-23. It is of 6 paragraphs and a written address which was adopted by J. K. Gadazam SAN, as the Petitioners’ argument in opposition to the application.

The 1st Respondent filed a further Affidavit in response to the counter Affidavit of the Petitioners and reply on point of law which was also adopted by the learned counsel to the 1st Respondent as his argument on point of law.

Having listened to the counsel to the Petitioners and the 1 Respondent in respect of the application. The only issue I formulated for determination is “whether the application is competent and has merit”.

A perusal of the 1st Respondent’s reply to the petition particularly paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 21, 22, 24, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 41, 43, 44, 45, 47, 48, 51, 52, 53, 54, 57, 58, 60, 61, 63, 65, 67, 68, 70, 71, 72, 73, 74, 77, 78 and 79 shows that same does not contain repetitions of the petitioners pleading, legal argument and raised new issue not contained in the petition and I am also of the considered view that the said paragraphs do not offend the provisions of paragraph 10(1)(a) and (b) of the 1 schedule to the Electoral Act.

Furthermore, by the paragraph 16 of the first schedule to the Electoral Act 2022, it provides as follows:

“If a person in his reply to the election raised new Issues of fact in defence of his case, which the petition has not dealt with, the petitioner shall be entitled to file in the registry within 5 days from the receipt of the Respondent’s reply Petitioners reply in answer to the new issues”.

See NATASHA HADIZA AKPOTI & ANOR VS. INEC (202) LPELR 50174(CA) pp 55-56.

The 1st Respondent’s in its reply on point of law submitted that paragraph 4(9) and 1 of the Petitioner’s counter Affidavit contained arguments and condusion. I am of the considered view, that the said paragraphs do not offend the provision of the Evidence Act, 2011 particularly section 86 & 87.

Assuming without conceding that the said paragraphs offend the provision of the Evidence Act 2011. The position of the law is that election cases though sui generis and should be treated in that realm; nevertheless they are still a species of civil cases. The weight of judicial opinion at this case and time is predominantly in favour of the counsel doing substantial justice rather undue adherence to provisions of the law and technicalities. Hence the overriding Interest of doing substantial justice to all parties in an action is the pre-occupation of Law Courts Tribunals and Administrative Panels of inquiry. See EKPENETU VS. OFEGOBI (2012) 15 NWLR PT. (276) CA. From the following therefore the application is accordingly dismissed for lacking in merit.

Another motion filed and argued at the pre-hearing is the application dated 7-6-2023. It was filed by the 3d Respondent. The applicant prayed this Tribunal to strike out paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 35, 36, 37, 39, 40, 41, 42, 43, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 61, 65, 66, 67, 68, 71, 84, 147, 146, 147, 148(c) (e) (1) 150, 151 and 153 of the Petitioners’ reply to the petition for being in competent.

The application was predicated on the following grounds:

(a) That the Petitioners’ reply to the 3 Respondent’s reply to the petition contained repetition of the petitioners pleading, legal arguments and raised new issues not contained in the petition.

(b) That specifically paragraphs 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 34, 38, 36, 37, 39, 40, 41, 42, 43, 45, 46, 47, 48, 50, 51, 52, 53, 54, 56, 57, 59, 60, 61, 65, 66, 67, 68, 71, 84, 142, 146, 147, 148(c), (e), (1), 150, 151 and 153 of the petitioners reply to the 3rd reply to the petition offend the provision of paragraph 16(1) (a) and (b) of the 1 schedule to the Electoral Act 2022.

In support of the application is an Affidavit of 6a paragraph deposed to by Chinonye Iheukhor and a written address dated 02-06-23 which was adopted by the 3d Respondent’s counsel as his argument in support of the application.

The petitioners in opposing the application filed a counter Affidavit of 6 paragraphs and a written address dated 5-6-2023 which was adopted by the petitioners’ counsel as his argument in opposition to the application. The 3 Respondent filed a reply on point which was also adopted as the reply on point of law by the counsel to the 3 Respondent.

Having listened to the two counsel who argued for and against the application, this Tribunal, has carefully formulated a sole issue which is whether the application has merit.

On the authority of the case of NATASHA HADIZA AKPATI & ANOR VS INEC (supra) and paragraph 16 of the 1 schedule to the Electoral Act, 2022 which provides as follows:

“If a person in his reply to the election petition raises new issues of fact in defence of his case which the petition has not dealt with the Petitioner shall be filed in the Registry within 5 days from the receipt of the Respondent’s reply a petitioner reply in answer to the new issues”.

I am of the considered view that the paragraphs of the Petitioners’ reply to the 3 Respondent dated 14-5-2023 which are in contention are competent and consequently this Tribunal holds that the 3rd Respondent’s motion dated 7-6-2023 should be dismissed and is hereby dismissed for lack of merit.

On the face of the court, the motion dated 4-4-2023 was filed by the Petitioners, the application prayed this Tribunal to strike out paragraphs 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 115, 116 and 117 contained in the 3 Respondent’s prayer to the petition for being grossly incompetent.

And for such further of other Orders as this may deem fit to make in the circumstance.

(2) And for such further or other Order(s) as this honourable court may deem fit to make in the circumstances of this case.

Take further notice that the grounds upon which this application brought are as follows:

(a) That the 3 Respondent filed its reply to the petition on the 7th day of May 2023, basically 50 days after the declaration of results for the election into the office of Governor of Nasarawa State.

(b) That the first schedule to the Electoral Act, 2022 is unambiguous on the expected structure and contents of a Respondent’s Reply to a petition.

(c) That the 3rd Respondent, in what it couched as ‘unlawful reduction from the 3rd Respondent and unlawful addition made to the Petitioners upon transfers of votes from EC8A to EC8B…’ in paragraphs 45 to 113 and 115 to 117 of the 3rd Respondent’s reply to the petition – a display of blatant disregard to the relevant provisions of the Electoral Act, 2022 is attempting to cross petition.

(d) That the 3d Respondent’s unsubstantiated objection to votes which purports to be in line with paragraph 15 of the first schedule to the Electoral Act, 2022 is already contained in paragraphs 41, 42, 43 and 44 of the 3 Respondent’s reply to the petition.

(e) A petition or cross petition ought to be filed 21 days after the declaration of results by the Independent National Electoral Commission (INEC) the 1 Respondent.

(f) That the intervention of this honourable court is required to strike out the offending and grossly incompetent paragraphs 45 to 113 and 115 to 117 of the 3″ Respondent’s reply to the petition.

In support of the application is an Affidavit of 6 paragraphs deposed to by Tajudeen Ajani and a written address dated 4-6-2023. The 3 Respondent in opposing the application filed a counter Affidavit and a written address dated 8-6-2023.

Having read the application, the processes filed for and against by the Petitioners and the 3″ Respondent, this Tribunal has formulated a lone issue for determination which is “whether the application has merit”.

Paragraphs 12 and 15 of the first schedule to the Electoral Act 2022 provide as follows:

12(1) The Respondent shall within 21 days of service of the petition on him file in the Registry his reply specifying in it which is the facts alleged in the election petition he admits and which he denied and setting out the facts on which he relies in opposition to the election petition.

(2) Where the Respondent in an election petition, complaining of an undue return and claiming the seat of office for a petitioner intend to prove that the claim is incorrect or false, the Respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the petitioner.

(3) The reply may be signed by the Respondent or the Solicitor representing him, if any and shall state the name and address of the solicitor at which subsequent processes shall be served, and shall be accompanied by copies of documentary evidence, list of witnesses and the written statement on oath.

(4) At the time of filing the reply, the Respondent or his solicitor, if any shall leave with the Secretary copies of the reply for services on the other parties to the election petition with 10 extra copies for the reply to be preserved or directed by the Secretary, and in default of leaving the required copies of the reply or paying the fees for services, the reply shall be deemed not to have been filed, unless the Tribunal or Court otherwise orders.

(5) A Respondent who has an objection to the hearing of the petition shall file his reply and state the objection in it, and the objection shall be heard along with the substantive petition.

  1. When a Petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or return at the election shall set out clearly in his reply particulars of the votes, if any, which he objects to and the reasons for his objection against such votes, showing how he intends to prove at the hearing that the petitioner is not entitled to succeed”.

Furthermore, in the light of the provision of paragraphs 12 & 15 of the 1 schedule to the Electoral Act 2022 and the case of ADAMU MUHAMMED & ANOR VS. INEC & ORS (2015) LPELR 400631 (CA) pages 28-36, the Tribunal is of the considered view that the said paragraphs in the 3rd Respondent’s reply to the petition are competent and not liable to be struck out. Consequently, the Petitioners’ motion on 4-6-2023 is dismissed.

Another motion on notice moved at the pre-hearing is the motion on notice dated 4-6-2023 filed by the Petitioners.

The application prayed the Tribunal to strike out paragraphs 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 108, 109, 110, 110, 112, 113, 114, 115, 116, 117, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130 and 131 contained in the 2 Respondent reply to the petition for being grossly incompetent.

And for such further of other Orders as this may deem fit to make in the circumstance.

(2) And for such further or other Order(s) as this honourable court may deem fit to make in the circumstances of this case.

Take further notice that the grounds upon which this application is brought are as follows:

(a) That the 2nd Respondent filed his reply to the petition on the 6th day of May 2023, basically 49 days after the declaration of results for the election into the office of Governor of Nasarawa State.

(b) That the first schedule to the Electoral Act, 2022 is unambiguous on the expected structure and contents of a Respondent’s Reply to a petition.

(c) That the 2nd Respondent, in what he indelicately couched as ‘improper calculated votes/incorrect entry of results in paragraphs 97 to 131 as contained in the 2nd Respondent’s reply to the petition a display of blatant disregard to the – relevant provisions of the Electoral Act, 2022 is only attempting to cross petition.

(d) That the 2nd Respondent’s unsubstantiated objection to votes which purports to be in line with paragraph 15 of the first schedule to the Electoral Act, 2022 is already contained in paragraphs 132 of the 2nd Respondent’s reply to the petition.

(e) A petition or cross petition ought to be filed 21 days after the declaration of results by the Independent National Electoral Commission (INEC) the 1st Respondent.

(f) That the intervention of this honourable court is required to strike out the offending and grossly incompetent paragraphs 97 to 131 as contained in the Respondent’s reply to the petition. In support of the application is an Affidavit of 6 paragraphs and a written address dated 4-4-2023 which was adopted as the petitioners counsel argument in respect of the case.

The 2nd Respondent in opposing the application filed a counter Affidavit and a written address which was adopted as the 2″ Respondent argument in respect of the application.

Having listened to the counsel in the matter and read the processes filed in respect of the application the question that is begging for an answer is “whether the application has merit in the light of the paragraphs in contention”. This Tribunal is of the considered view that in the 2nd Respondent’s reply, he clearly and distinctly set out the votes of the Petitioners which he objects to in accordance with the provisions of paragraph 15 of the first schedule to the Electoral Act 2022. It states as follows:

“where a Petitioner claims the seat that he had the highest number of valid votes cast at the election the party defending the election or return shall set clearly in his reply particulars of the votes, if any which he objects to and the reason for his objection against such votes showing how he intends to prove at the hearing that the petitioners is not entitled to succeed”.

In the light of the above, the Tribunal is of the considered view that the said paragraphs as contained in the 2 Respondents reply to the Petitioner are in competent, in order and not liable to be struck out, Tribunal holds accordingly.

The 2 Respondent by the motion on notice dated 30-5-2023 prayed this honourable court for the following orders:

  1. An Order of this honourable Tribunal striking out and/or dismissing this petition for being incompetent, fundamentally defective and vesting no jurisdiction on this honourable Tribunal to adjudicate thereon.
  2. Further or in the alternative to (1) above, an order of this honourable Tribunal:
  3. Striking out jointly and/or severally, reliefs a, b, c, d, e, f and g and sought in the petition.
  4. And for such further or other orders(s) as this honourable Tribunal may deem fit to make in the circumstances of this case.

That the application is predicated upon which are as follows:

  1. There is no nexus between the sole ground of the petition and the reliefs being sought.

Particulars of Errors:

  1. Whereas, the sole ground of the petition is to effect that the Respondent was not duly elected by majority of lawful votes cast, there is no relief sought by the petitions to activate the said sole ground.
  2. In the entire reliefs adumbrated under paragraph 104 of the petition, no relief has been sought to set aside the election of the Respondent.
  3. Further to (a) and (b) supra, the sole ground of the petition is deemed abandoned; a fortiori, the entire petition is also deemed abandoned, or at the very best, academic The Reliefs are illegal and ungrantal

Particulars of Errors:

Reliefs (c), (d) and (e) of the petition are illegal and ungrantable, in that:

(a) That paragraphs 12 and 13 of the petition have already admitted that the Respondent emerged as winner of the Nasarawa State Governorship Election of 18th March, 2023 and was so declared and returned by the 1st Respondent.

(b) That by section 72 of the Electoral Act, 2022 the issuance of a certificate of return to a candidate within 14 days of his declaration and return, is a necessary concomitance of the candidate’s declaration and return.

(c) That a person to whom a certificate of return has been issued has same withdrawn or set aside, while his election, declaration and return remain valid and subsisting.

(d) That a certificate of return cannot be issued to another candidate at an election, while the election; declaration and return of the other candidate remain subsisting.

(e) That Petitioners have not in any of their reliefs, sought the setting aside, nullification or invalidation of the Respondents election, declaration and return.

III. Further to (1) and (II) above, Petitioners’ reliefs (a) and (b) are academic and ungrantable, as they confer no ultimate benefit on the petitioners.

  1. It is the case of the 2nd Respondent without prejudice to (I-II) supra, the honourable Tribunal is without jurisdiction to grant relief (b) as:
  2. The said relief is speculative from the way it is couched thus

… upon a proper computation of all the polling units…”

  1. The figure with which the 1 Petitioner was purportedly duly elected, as against the 2 Respondent and also as against the legitimate result declared by the 1 Respondent has not been stated.
  2. No court or Tribunal has the jurisdiction to grant the type of relief as couched in paragraph 104 (b) of the petition.
  3. The said relief leads to no destination, it hangs in the air.

That the Relief couched as (c) in the petition is also generic, omnibus and speculative as:

  1. The purported figure activating the highest number of lawful and valid votes purportedly scored by the 1st Petitioner has not been stated.
  2. Like relief (b) before it, relief (c) also hangs in the air, leading to no destination.
  3. The Tribunal is without jurisdiction to grant relief (c) as couched.
  4. The relief couched as relief (d) in the petition is grossly incompetent and ungrantable as:
  5. That this honourable Tribunal is without jurisdiction to withdraw a certificate of return issued to the 2nd Respondent.
  6. That there is no declaratory relief, seeking the setting aside of the election of the 2nd Respondent, a fortiori, the order praying for the setting aside and/or withdrawal of the certificate of return has no substratum.

That the margin of votes as between the 1st Petitioner and the 2nd Respondent leading to the assumption that the 1st Petitioner scored the highest number of lawful votes cast at the election is not stated.

VII. That Relief (E) in the petition as couched is also not grantable as:

  1. That certificate of return cannot be decreed in favour of the 1st Petitioner, wantonly, he, having not specifically prayed the Tribunal to hold that he scored a specific number of votes.
  2. That the Tribunal is without jurisdiction to make the order as fancifully prayed for.

VIII. Without prejudice to (1) – (VII) above, the reliefs contained in (A), (B), (C) of the petition have not been juxtaposed with the pleadings, figures and tables bandied in the petition.

  1. That further to (VIII) supra, all the pleadings, figures and tables are deemed abandoned.

The entire petition does not disclose any reasonable cause of action or any cause of action at all.

And take further notice that at the hearing of this application, the Respondent shall rely on the documents and processes which already form part of the record of this honourable Tribunal.

In support of the application is an Affidavit and a written address which was adopted as the Chief Wole Olanipekun SAN, the counsel to the 2nd Respondent.

The Petitioners in opposing the application filed a counter Affidavit. 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 Tribunal. See BUREMUT VS. AKANDE (2017) NWLR PT. 1565 page 74 at 98 para C per M. D. 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 ISHAKU VS. KANTIOK (2012) 7 NWLR (PT 1300) 457.

From the foregoing therefore, 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.

Hearing commenced, some documents were tendered from the bar which were consequently admitted in evidence. The Petitioners opened their case and called twenty-two (22) witnesses and tendered several documents to prove their case and later closed their cases.

The 1st Respondent tendered some documents through her counsel from the bar and closed her case.

The 2nd Respondent opened his case, tendered some documents and at the end of the day called twenty two (22) witnesses.

The 3d Respondent equally opened his case and closed its case after calling one unsworn witness.

On the face of the court record, the case of the Petitioners is as follows:

“That the election took place on the 18th day of March, 2023 and that there are thirteen (13) local government areas in Nasarawa state which has a total of one hundred and forty-seven (147) Electoral wards and three thousand, two hundred and fifty six (3, 256) polling units. It is their case two days after the election was conducted, specifically on Monday, 20 March, 2023; the 1st Respondent announced the purported scores of the candidates for the election”.

The case of the Petitioners is that the 1st Respondent wrongly returned the 2nd Respondent as the winner of the election, allocating to him three hundred and forty-seven thousand, two hundred and nine (347, 209) votes while ascribing to the 1st Petitioner two hundred and eighty-three thousand and sixteen (283, 016) votes and that the 1st Respondent also declared the following as its summary of the purported results:

S/N NAME OF CANDIDATES GENDER PARTY IN FIGURES IN WORDS
1 Sule Audu Alhaji M APC 347,209 Three Hundred and Forty Thousand, Two Hundred and Nine
2 Emmanuel David Ombugadu M PDP 283,016 Two Hundred and Eighty Three Thousand and Sixteen

The case of the Petitioners is that on Form ECBD (being the summary of the final collation of results) and Form ECBE (being the final declaration of result) issued by the 1st Respondent, not only to show the purported scores as recorded by the 1st Respondent, but also to show the incorrectness of the scores as recorded therein. The Petitioners further stated that on the face of the Form ECBD, there are calculation errors and wrongful entries as shown and contained in the report of the statisticians/Data Analysts.

The case of the Petitioners is that to underscore the relevance of real-time electronic transmission of the results and accreditation data from the polling units to the IREV Portal and the INEC Electronic collation system, the 1st Respondent itself stated thus in its Mandal for Election officials 2023.

“Electronic transmission/uploaded of election result and publishing to the INEC Result viewing (IREV) Portal:

“One of the problems notices in the electoral process is the irregularities that take place between the polling units (PUS) after the announcement of results and the point of result collation. Sometimes results are hijacked, exchanged or even destroyed at the PU, or on the way to the collation-centres. It becomes necessary to apply technology to transmit the data from the poling units such that the results are collated up to the point of result declaration”.

“The real-time publishing of point unit-level results on IREV Portal and Transmission of results using the BVAS demonstrates INEC’s commitment to transparency in result management. This commitment is backed by Sections 47(2), 60 (1, 2, & 5), 64 (4a & 4b) and 64(5) of the Electoral Act 2022, which confers INEC with the power to transmit election results electronically. The system minimizes human errors and delays in results collation and improves the accuracy, transparency and credibility of the result collation process”

The Petitioners contended that for a candidate to be properly and lawfully returned as the winner of the election, he must be the person who polled the highest number of majority of the lawful and valid votes cast at the election from the polling unit results.

It is the case of the Petitioners, that Petitioners appointed polling agents for all units and collation centres within the 13 Local Government Areas of Nasarawa State who were accredited the Petitioners in all the polling unit and collation centres assigned to them during the conduct of the election.

The case of the Petitioners is that the 1st Respondent is duty-bound to comply with the provisions and the procedures laid down in the Electoral Act and the 1st Respondent’s guidelines used for the 2023 General Election in the conduct of the said election. The 1st Respondent, purporting to be acting pursuant to Section 148 of the Electoral Act, 2022 produced the Regulations and Guidelines for the conduct of elections, 2022 which provides the step-by-step procedure to be followed by the officials of the 1st Respondent in the conduct of the election.

It is the case of the Petitioners that in counting of votes cast at the collation centres for the purpose of a Governorship Election, it is the number of votes recorded and transmitted directly from polling units and the votes or results recorded and transmitted directly from polling units (Form EC8A) that should be considered.

Results are collated and the winner is declared based on collation from the polling units’ result sheets (Form EC8A), the ward result sheet (Form EC8B), the Local Government result sheets (Form EC8C), the State result sheet (Form EC8D) and eventually the declaration of result (Form ECSE).

The returning officer is enjoined to declare as the winner the candidate who scored the highest or majority number of votes cast at the election based on proper collation of the results.

The case of the Petitioners is that the returning officer cannot validly declare as the winner of a Governorship Election a candidate who, upon collation of the results from the Local Government Areas of the state, did not poll the majority of lawful votes cast at the Election.

It is the case of the Petitioners that the 1st Respondent had prescribed through its various regulations, guidelines and manual, the manner of accreditation, collation and transmission vide its Technological device, the BVAS, pursuant to the Electoral Act.

It is the case of the Petitioners that the 2d Respondent did not poll a majority of the valid votes cast in the Governorship election conducted by the 1st Respondent on the 18th day of March, 2023.

The case of the Petitioners is that contrary to the undertakings, representations and assurance of the 1st Respondent to conduct an election whose result shall represent the will of the people, the 1st Respondent proceeded on the 20th day of March, 2023 to wrongly return the 2nd Respondent as the winner of the election but dated the Forms EC8D and ECSE the 18th day of March, 2023 when the said 2nd Respondent did not poll a majority of lawful votes cast in the said election based on the results collated from the respective polling units in the 13 Local Government areas of Nasarawa State.

It is the case of the Petitioners that the result upon which the 2nd Respondent was declared as winner of the Election and returned as such were not properly collated in line with (a) the Electoral Act, 2022 (b) INEC Regulations and Guidelines for the conduct of Election, 2022 (Guidelines) and Manual for election officials 2023 (Manual).

The Petitioners contended the evidence at the hearing in proof of the fact that: (a) The result of the election as announced by the 1st Respondent, especially the votes wrongly allocated to the 2nd Respondent, does not represent the lawful valid votes cast at the polling units, and

(b) Lawful votes were deducted from the 1st Petitioner’s scores by the 1st Respondent which facilitated the return of the 2nd Respondent. The 2nd Respondent’s scores were increased, which resulted in the 2nd Respondent’s purported victory and that the 2nd Respondent’s score as declared by the 1st Respondent, do not reflect the accurate result of the Governorship Election of the 18th day of March, 2023 and was increased at the collation centres, which resulted in the 2nd Respondent’s purported victory.

It is the case of the Petitioners that the 1st Respondent who set the parameters did not follow through with the collation procedure in the election thereby creating opportunity for figures to be added to the undue advantage of the 2nd and 3rd Respondents while reducing the lawfully earned scores of the Petitioners.

The Petitioners contended that various incorrect entry of result from ECBA to EC8B in Awe Local Government Area. The Petitioners further contended that Awe Local Government has ten (10) wards/registration areas and the petitioners are contending the results of two (2) electoral wards. In these two Electoral wards, the Petitioners aver that, there was wrongful entry of the sum total of the figures of scores earned by the Petitioners and the 2nd & 3rd Respondents. That the affected electoral wards are Azara and the Kanje/Abuni Electoral Wards

The Petitioners added that in Azara Electoral ward code 08, there are thirty one (31) polling units where elections held and the results of each of the polling unit was properly collated into Forms EC8AS. However, there was no following through with the mandatory procedure of computation of entries made at the final total of the wards collated scores of the parties in Form EC8B, such that the total votes cast earned by the parties were affected in the overall scores entered into Form ECSC for Awe Local Government Area and that in the said Azara Electoral Ward, the scores of the parties as contained in Form EC8AS are actual entries made of the scores obtained by the political parties from the polling units but in the entries and computation at the ward level in Form EC8B, total scores of the parties were wrongly entered, which affected the computation made by the 1st Respondent’s ward collation officer.

It is the case of the Petitioners that in polling units are APC 5,636 while that of PDP is 2,388 contrary to what is contained in Form EC8B where it was incorrectly entered as APC 6,978 and PDP 1,313.

The votes wrongly credited to the parties as reflected in Form EC8B ought to be corrected and reflected in Form ECBC of Awe Local Government.

The case of the Petitioners is that in Kanje/Abuni Electoral Ward 06 of Awe Local Government Area, after the entries of polling units result figures in Form EC8A, the 1st Respondent’s officers incorrectly entered the scores of political parties in the ward result by making wrong entries into Form ECB8 thereby affecting the scores of the petitioners contrary to the actual result in the election. In this ward, the Petitioner’s scores were incorrectly recorded to be 2,964 contrary to the sum total of scores entered in Forms ECBA at the polling units in the affected Electoral ward, which are APC 2,382 votes for the 2nd and 3rd Respondents and PDP 711 votes for the Petitioners.

The Petitioners contended that the total result of Kanje Abuni Electoral ward of Awe Local Government Area are not the true reflection of the actual votes. That the results of the polling units in Forms EC8A which were incorrectly entered in Form EC8B affected the actual votes of the Petitioners and the 2nd and 3rd Respondents, thereby entering the scores of the parties in Form EC88 contrary to what was obtained in Form ECSA result of polling units.

The Azara and Kanje/Abuni Electoral Wards polling units result which incorrectly reflected the votes of the Petitioners contained in Form EC8A ought to be properly calculated and collated into Form ECSBS and EC8C of Awe Local Government Area which will bring the correct total votes of the parties thus;

AZARA WARD KANJE/ABUNI WARD
ACTUAL TOTAL VOTES IN FORM EC8A PURPORTED VOTES ENTERED IN FORM EC8B FROM FORMS EC8A ACTUAL TOTAL VOTES IN FORM EC8A PURPORTED VOTES ENTERED IN FORM EC8B FROM FORMS EC8A
APC PDP APC PDP APC PDP APC PDP
5636 2388 6978 1313 2382 711 2964 131

The actual total score for APC in the two (2) Electoral wards 8018 votes, while that of PDP is 3099 votes contrary to APC 9942 and PDP 1444.

From the above table, the score that ought to be reduced from APC is 1924 while the score to be added to PDP should be 1655.

The case of the Petitioners is that Lafia Local Government Area in Gayam and Chiroma Electoral wards of Lafia Government Area, the votes were incorrectly entered in the Form EC8B. This wrong entry affected the total lawful scores of the Petitioners and the 2nd & 3rd Respondents.

That while eleven (11) electoral wards results in Form ECSB arrived at the Lafia Local Government Area Collation Centre in good time, those of Gayam and Chiroma were delayed. Instead of collating the ward results of Chiroma and Gayam Electoral wards at their respective ward registration centres, which are Maidunoma Primary School and St. William’s Primary School respectively, they were moved to Abacha Youth Centre Lafia and that when the Lafia collation agents of the Petitioners noticed the incorrect reflection of the two electoral ward results, the agents of the petitioners’ constituency collation agents for Lafia North both met the Petitioners’ state collation agent at the state collation centre where a letter of complaint was raised, jointly signed and personally served on the 1st Respondent’s state collation and returning officer, Professor Ishaya Tanko before the time for the conclusion of collation into Form ECBC of Lafia Local Government Area. The letters are Exhibits before the Tribunal.

It is the case of the Petitioners that the scores entered in the Form ECSB were incorrect and not a reflection of what was actually earned by the Petitioners and the 2nd and 3rd Respondents in the two affected wards of Gayam and Chiroma and that in Gayam Electoral ward, figures were wrongly entered into Form EC8B. The Petitioners contended that the accreditation numbers for the State House of Assembly and Governorship Election in Gayam Electoral Ward is different notwithstanding that the accreditation for both elections were one and the same using the BVAS machines.

The Petitioners added that the accreditation figure entered into Form ECSB for the Governorship Election was increased by wide margin compared to the state house of assembly figures.

The Petitioners contended that the total accreditation figures as recorded by the 1st Respondent for the state house of assembly in Form EC8B in respect to Gayam ward is 14,588 while that of the Governorship for the same electoral ward as recorded by the same 1st Respondent was wrongly entered into Forms EC8B and EC8C as 33,136.

It is the case of the Petitioners that during results collations, it was reported, observed and noticed by the Petitioners and Agents that in Gayam Electoral Ward in Lafia Local Government Area, the result of polling units in Forms EC8A were incorrectly entered in Form EC8B wherein the total scores of the APC and PDP were wrongly entered as follows: APC 29,857, PDP 1,453 instead of APC 9,753 and PDP 2,979 with the addition of non-collated scores of parties in K/Abdul-Aziz polling unit code 046, where APC scored 25 and PDP 90, not collated in Form EC8B.

The Petitioners’ case is that upon a proper adjustment in the incorrect entry into Form EC8B result figures, the actual results and scores of each political parties in Gayam Electoral Ward of Lafia LGA will be APC 9,753 and PDP 2,979 contrary to what was entered in Form EC8C for Gayam Electoral Ward of Lafia Local Government Area and presented in Form ECBD as shown below:

PURPORTED TOTAL FIGURES CREDITED TO GAYAM WARD IN FORM EC8B

Purported Total Accredited Voters Purported Votes Cast APC PDP
33,136 33,123 29,857 1,453

That upon the reconciliation of the figures wrongly credited by the 1st Respondent into Form ECBB and EC8C, the scores and figures reflected in the purported Form ECBC of Gayam Ward of Lafla Local Government Area will be reflected in Form ECBD with respect to figures from Lafia Local Government Area.

It is the case of the Petitioners that like Gayam Ward in Chiroma Electoral Ward, figures were incorrectly entered into Form EC8B. Two (2) elections were held at the same time and same accreditation process for the House of Assembly and that of Governorship using same BVAS Machine. However, the accreditation for the Governorship Election was increased by wide margin compared to that of the State House of Assembly accreditation result as declared by the 1st Respondent with magical figures of scores wrongly entered into Form EC8B for Chiroma Ward.

The Petitioners added that the total accreditation figures as released by the 1st Respondent for the State House of Assembly as contained in Form ECSB in respect to Chiroma Ward do not tally with that of the Governorship accreditation figure for the same Electoral Ward as collated by the same 1st Respondent. The difference of thirty four thousand, nine hundred and fourteen (34,914) accreditation figure was incorrectly asserted into Form EC8B to increase and cover up the unearned scores of the 2nd and 3rd Respondents contrary to the foundational results figures in Form EC8AS of the polling units in Chiroma Electoral Ward.

On the face of the Tribunal record, the Petitioners relied on Forms ECBA, ECSB and ECSC for both Governorship and House of Assembly in Chiroma Ward during trial.

The case of the Petitioners is that the upon a proper adjustment of the incorrect entries into Form EC8B, the actual results and scores of each political party in Chiroma Electoral Ward of Lafia Local Government Area will be: APC 14,474, PDP 3,506 contrary to what was entered in Form EC8C for Chiroma Electoral Ward of Lafia Local Government Area and presented in Form ECBD and that the incorrect sum total of the scores in Form EC8C with respect to Chiroma Electoral Ward’s figures of numbers of accredited voters, scores of the APC and PDP contrary to entries on polling unit’s results as contained in Forms EC8A shows thus:

NO. OF PURPORTED ACCREDITED VOTERS ON FORM EC8B APC SCORE PDP SCORE
56,801 50,944 851

The case of the Petitioners is that the actual total votes for APC in the Chiroma Electoral Ward is 14,474 votes, while that of PDP is 3,506 votes, contrary to the purported entries contained in Form EC8B where APC were recorded to have scored 50,944 and PDP given 851 votes. Thus, the votes that ought to be reduced from APC is 36,470 while the votes to be added to PDP should be 2,655.

On non-collation of valid votes cast for the Petitioners at the said Election, the Petitioners added that in respect of the Governorship Election in issue, the results entered into the Form EC8AS, and uploaded into the 1st Respondent’s IREV Portal (for which duplicate copies were issued to political parties’ agents) were not collated into the Forms EC8B during the collation of results at the ward collation centres.

Lafia Local Government Area in Ashigle Electoral Ward 06, the Petitioners’ case is that Ashige ward comprises of thirty-six (36) polling units. One (1) polling unit result was cancelled at the polling unit level. The results of the remaining thirty-five (35) polling units were properly entered into Form ECSA and collated into From ECSB at the ward collation centre, but were wrongfully cancelled into by the 1st Respondent at the Lafia Local Government Area collation centre. This cancellation was done at the local government collation centre at the Abacha Youth Centre, Lafia during the presentation of the ward result for collation into Form ECBC.

That in the Ashige Electoral Ward, the result (Form EC8B) for the House of Assembly Election was collated into Form ECBC while that of the Governorship Election was cancelled-in-disregard to the objections raised by the Petitioners’ agents present at the Local Government Area collation centre.

It is the case of the Petitioners that the cancellation was not merely wrong but affected and reduced the lawful votes of the petitioners and that the Electoral Guidelines were not adhered to by the Lafia Local Government Area Collation Officer.

It is the case of the Petitioners that while Form EC8B of the House of Assembly Result with respect to Ashige Electoral Ward was collated into Form EC8C; Form EC8B which was properly collated with respect to Governorship Election was not collated into Form ECSC by the 1st Respondent at the Local Government Collation.

It is the case of the Petitioners that if the scores recorded in Form EC8B of the wrongly cancelled Ashige ward are collated and reckoned with into Form ECBC of Lafia Local Government Area, the actual total votes for the APC in the election will be 2,673 while that of the PDP will be 4,488 for the Electoral ward.

It is the case of the Petitioners that the collation of figures from Forms ECBC, which are Local Government results of all the 13 local governments areas in Nasarawa State, were presented to the 1st Respondents’ Returning Officer, Prof. Ishaya Tanko, bearing figures incorrectly entered into the Form EC8B of affected Electoral Wards and Local Government Areas contrary to actual scores obtained in polling units results (Forms EC8A) and that the total excluded votes of the parties from Form EC9B at the Lafia Local Government Area collation centre on the directive of the Lafia Local Government Collation Officer is as shown below:

ASHIGIE OF TOTAL FIGURES OF 35 P.U
No. of Voters on Reg Total of PVCs collected No. of Accredited voters on EC8As No. of Accredited voters on BVAS Total votes cast APC PDP
21179 20309 7316 7316 7316 2673 488

It is the case of the Petitioners that the collation election results in the aforesaid Local Government Area were wrongly computed by the 1st Respondent through the wrongful reflection and discounting of the lawful votes of the petitioners while increasing the votes of the 2 and 3 Respondents.

It is the case of the Petitioners that the 1st Respondent wrongly entered the votes emanating from the polling units, in that the 1st Respondent through its officials incorrectly reflected the votes of the Petitioners as well as those of the 2nd and 3rd Respondents.

In Doma Local Government Area, it is the case of the Petitioners that in places where the polling unit results were not collated into the ward results sheet Form (ECBB) at the ward collation level, it was the Petitioners who led in these polling units and that the affected polling unit in ward registration area where results were not collated is stated below.

That in Sabon Garl ward code 010 Alwazan Mada Polling unit code 009, the total number of accredited voters in the polling unit is 326 wherein the 2nd and 3rd Respondents scored 7 while the Petitioners score 311 votes that this result was not collated into Form EC8B of Sabon Gari Ward despite repeated demands by the Petitioners’ ward collation agents. It is their case that the excluded scores of the respective political parties ought to be added to the total votes scored by the parties in Form EC8B of Sabon Gari Electoral Ward Results.

The Petitioners stated that the 1st Respondent wrongly included votes from polling units where there were incidences of over-voting which contributed to the unlawful votes that led to the wrongful declaration and return of the 2nd Respondent as the winner of the election.

The Petitioners further aver that the 1st Respondent entered wrong votes/results for the under-listed local government areas, namely:

  1. Akwanga
  2. Nasarawa Eggon
  3. Toto

AKWANGA LOCAL GOVERNMETN AREA

NINGO/BOHAR ELECTORAL WARD CODE 011

That in Bohar Sarki polling unit code 005 of Akwanga Local Government Area, there was over voting in that while the BVAS report indicated that 163 voters were accredited, the total votes recorded was 747, showing an excess of 584 votes. Of the 747 votes falsely alleged to have been cast, 743 votes were allocated to the APC, while the PDP was allocated 2 votes and the remaining votes allocated to other political parties. The election in this polling unit ought to be cancelled and the votes wrongly credited to the parties deducted from the final votes.

NASARAWA EGGON LOCAL GOVERNMENT AREA

That in Nasarawa Eggon Local Government, there are fourteen (14) Electoral Wards. The petitioners are contesting the results from one (1) electoral ward where over-voting took place.

NASARAWA EGGON ELECTORAL WARD 01

It is the case of the Petitioners that in Nasarawa Eggon Electoral Ward Code 01, in polling unit of Kofar Magaji Gari Angwan Makama Area Code 018, there was over-voting in that while the BVAS Report indicated that 302 voters were accredited, the total votes wrongly alleged to have been cast 481 votes were allocated to the APC, while the PDP was allocated 24 votes. 12 votes were allocated to other political parties and 5 voters rejected. The election in this polling unit ought to be cancelled and the votes wrongly credited to the parties deducted from the final votes.

GADAGWA ELECTORAL WARD 002

That in Toto Local Government Area, particularly in Gadagwa Electoral Ward Code 002, polling unit of Gadabuke (A) Code 006, there was over-voting in that while the BVAS Report indicated that 270 voters were accredited, the total votes recorded was 277, showing an excess of 7 votes. Of the 277 votes wrongly alleged to have been cast, 215 votes were allocated to the APC, while the PDP was allocated 42 votes. 19 votes were allocated to other political parties and 1 vote rejected. That the election in this polling unit ought to be cancelled and the votes wrongly credited to the parties deducted from the final votes.

SHEGIE 1 ELECTORAL WARD

That also in Shegie I Electoral Ward Code 011 in Ihamkpe B, Code 010 of Toto Local Government Area, there was over-voting in that while the BVAS Report indicated that 176 voters were accredited, the total votes recorded was 476, showing an excess of 300 voters. Of the 476 votes wrongly alleged to have been cast, 429 votes were allocated to the APC, while the PDP was allotted 20 votes. 26 votes were allocated to other political parties and 1 vote rejected. The election in this polling unit ought to be cancelled and the votes wrongly credited to the parties deducted from the final votes.

It is the case of the petitioners that in the light of the over-voting that occurred in the two polling units in Toto Local Government, the over figures scores by the Petitioners and the 2nd & 3rd Respondents which ought to be deducted from the final scores of the entry made for Toto Local Government Area is:

APC… 644 votes

PDP. 62 votes

The Petitioners contended that the 1st Petitioner, led in seven (7) Local Government Areas and that the 1st Respondent wrongfully entered incorrect results for the Petitioners in Form EC8B of Chiroma, Gayam, Sabon Gari, Azara and Kanje/Abuni Electoral Wards and that the 1st Respondent wrongly excluded from collation, the Petitioners’ valid votes in Form EC8B of Ashige Electoral Ward into Form ECBC of Lafia Local Government Area.

The case of the Petitioners is that the 2nd Respondent was not duly elected by majority of the lawful votes cast at the Election.

The Petitioners further contended that the result of the election as announced by the 1st Respondent and especially the votes allocated to the 2nd Respondent do not represent the lawful valid votes cast at the Election and the lawful votes cast at the Election were wrongly deducted from the Petitioner’s scores by the 1st Respondent in order to return the 2nd Respondent.

It is the case of the Petitioners that the return of the 2nd Respondent by the 1st Respondent as the winner of the Election in the above circumstances is unlawful and wrongful as the 2nd Respondent did not score the majority of lawful votes cast at the election.

It is the case of the Petitioners that the non-collation which was prevalent in the identified wards and local government area collation centres ultimately affected the entire result, declaration and return made by the 1st Respondent.

It is the case of the Petitioners that the summary of the votes to be deducted and added to the petitioners, 2nd & 3 Respondents are as set out in the table below:

S/N WARDS/PUS AFFECTED 2ND AND 3RD RESPONDENTS (APC) PETITIONERS (PDP)
1 Gayam Ward (Lafia Local Government) -20,104 votes to be deducted for being wrongly credited to the 2nd and 3rd Respondents +1,526 votes to be added being the balance of the cotes scored but not collated
2 Chiroma Ward (Lafia Local Government) -36,470 votes to be deducted for being wrongly credited to the 2nd and 3rd Respondents +2,655 votes to be added being the balance of the votes scored but not collated
3 Ashigie Ward (Lafia Local Government) +2673 votes to be added for being wrongly excluded in collation in Form EC8C for Lafia Local Govern +4,488 votes to be added for being wrongly excluded in collation in Form EC8C for Lafia Local Govern
4 Kanje/Abuni Ward (Awe Local Government) -582 votes to be deducted for being wrongly credited to the 2nd and 3rd Respondents +580 votes to be added being the balance of the votes scored but not collated
5 Azara Ward (Awe Local Government -1,342 votes to be deducted for being wrongly credited to the 2nd and 3rd Respondents +1,075 votes to be added being the balance of the votes scored but not collated
6 Alwanza Mada PU (Sabon Gari Ward) (Doma Local Government) +7 votes to be added for being wrongly excluded in collation in Form EC8B for Sabon Gari Ward, Doma Local Government +311 votes to be added for being wrongly excluded in collation in Form EC8B for Sabon Gari Ward, Doma Local Government
7 Bohar Sarki PU (Ningo Buhar Ward) (Akwanga Local Government) -743 votes to be deducted for over voting -2 votes to be deducted for over voting
8 Kofar Magaji Gari Angwan Makama PU (Nassarawa Eggon 1 Ward) (Nassarawa Eggon Local Government) -481 votes to be deducted for over voting -24 votes to be deducted for over voting
9 Gadabuke (A) PU (Gadagwa Ward) (Toto Local Government) -215 votes to be deducted for over voting -42 votes to be deducted for over voting
10 Ihamkpe B PU (Shegie I Ward) (Toto Local Government) -429 votes to be deducted for over voting -20 votes to be deducted for over voting
TOTAL SCORE -57,686 votes to be deducted from the 2nd and 3rd Respondents final score as announced by the 1st Respondent +10,547 votes to be added to the Petitioners’ final score.

It is the case of the Petitioners that the actual votes scored by the 2nd and 3rd Respondents at the Governorship Election held on 18th day of March, 2023 is set out in the table below:

APC PDP
Final Result as declared by the 1st Respondent 347,209 Votes 283,106 votes
Total deductions and addition as shown in the table above -57,686 votes +10,547 votes
TOTAL ACTUAL VOTES SCORED BY PARTIES 289,523 VOTES 293,653 VOTES

It is the case of the Petitioners that the actual margin of lead in favour of the Petitioners is 4,130 and the Petitioners met the constitutional spread of winning 25 percent of the 13 local government areas in Nasarawa State.

The 1st Respondent filed reply to the petition and listed 78 witnesses to be called.

Although some documents were tendered from the bar by the learned counsel to the 15 persons in the person of Ishaka M. Dikko SAN, the question that is begging for an answer is what is the effect of this on the instant case?

The position of the law is that pleadings, no matter the eloquence do not constitute evidence, it implies that the said reply is deemed abandoned in law. However, this Tribunal will still go ahead and decide this case on the its merit.

The 2nd Respondent opened his defence by calling 22 witnesses and in the process tendered documents that were admitted as Exhibits. On the face of the court record the case of the 2nd Respondent is that Nasarawa state governorship election held on 18-03-2023 substantially complied with all laid down procedures of accreditation, voting, collation, declaration and of the election and that the 2nd Respondent won by a majority of lawful votes cast of the said election.

It is the case of the 2nd Respondent that in Aso/Kodape Primary School unit 001 and Nyanya Gwandara Polling unit 072 of Karu Local Government, Utsuwa Public Centre Polling unit 021, Giden Muss 11 Registration area of Ohi local government, Shegie 1 registration area, Igi polling unit 001, Kotiko polling unit 001, Ihamper polling unit 009 of Toto local government, Yelwa registration area, Agwada registration area, Wampe registration area of Kokona local government, 7 registration area of Goto/Aisa, Akum Ara II Kana/Unda/Apawu Nasarawa North, Odo & Udenin Gida of Nasarawa local government, Bakin Rijiya/Akurba/Sarkin Pada ward, Kofar Reverend Masin unit 036, Shabu/Kwandere ward of Lafia Local Government, Angwan Kwara Kofar Godem, late Mai Angwan of unit 076, Angwan Iya II Registration Area, Halilu Rahaman Primary School Unit 012, in Ang Nipawa opp unit 006 of Tundun Kufa Registration area and Angwan Yabawa Kofar Mal/Agwan unit 017 of Tudun Kofar Registration of Keffi Local Government, Aloshi Registration area (LGEA Primary School Panjogic of Keana Local Government Akin Registration area (Tobitor unit 006 in A Registration area of Awe Local Government /Makwangiji Registration area (Kekura Primary School B. P. unit 006 of Makgwangi Registration area of Awe Local Government, Wuse T. V. centre also in Awe Local government, Angwan Prince Seni, open unit 018 and Gbebasan Primary School Kanyabu Registration (Futura unit 003, Sere unit 002 of Katakpe all in Toto Local Government that there were immensely calculated votes/incorrect entry of votes.

It is the case of 2nd Respondent that in the aforesaid registration area wards and polling units the score of APC were reduced while that of the PDP i.e. the 2nd petitioners were increased.

It is the case of the 2nd Respondent that the total number of votes omitted from the 2nd and 3rd Respondents is 8,174 lawful votes and vehemently objected pursuant to paragraph 15 of the 1st schedule to the Electoral Act 2022 objected to votes credited to the petitioners in the said election at various polling units in Akwanga Awe, Doma, Obi, Nasarawa, Eggon, Karu Kokona and Lafia Local Government areas, Nasarawa State.

It is the case of the 2nd Respondent that the total votes of the Petitioners affected by this objection is 6,894 invalid votes which when deducted from their overall scores of 283,016 declared at the end of the election of 18 March, 2023 brings down the votes of the Petitioners to 276,122 and the total affected votes of the 2nd and 3″ Respondents as a result of over-voting will be 2,422 votes which when deducted from 347,209 votes (as declared by the 1st Respondent) will bring down the Respondent’s votes to 344,787 and contended further that the Respondent further states that if the 8,174 votes omitted from the Respondent’s votes are added, the Respondent’s final votes will be 352,961 lawful votes.

The final scores of the parties will be as follows:

APC 352,961 votes

PDP 275,745 votes

and that arising from the foregoing, the 2nd Respondent urged this honourable Tribunal to hold that by the lawful number of votes cast in Nasarawa State Governorship Election held on the 18th day of March, 2023, the 2nd Respondent was not only rightly returned and/or defeated the Petitioners at the said election by far more than the margin declared by the 1st Respondent.

The 2nd Respondent contended that all the allegations contained in the petition are mere fabrications by the desperate petitioners to curry undeserved favours from the Tribunal and to circumvent the mandate freely and voluntarily given to the 2nd Respondent by the electorate of Nasarawa State through the election of 18th day of March, 2023 which was adjudged as free, fair, transparent and credible.

The 2nd Respondent closed his case and when it was the turn of the 3rd Respondent to close its case, the only one unsworn witness was subpoenaed to tender some documents.

Another question that is begging for an answer at this juncture is, what is the effect of this? The effect of this is that the reply of the 3rd Respondent to the Petitioner is deemed abandoned. See (1) AREGBESOL VS. OYINLOLA (supra) (2) AREGBESOLA VS. OMISORE (supra). However this Tribunal will still go ahead and decide this case on its merit.

Furthermore, perusal of the reply of the 3 Respondent to the Petitioners’ petition dated 5-5-2023 and filed 7-5-2023 has the following as the parties to be in the petition

BETWEEN

(1) EMMANUEL DAVID OMBUGADU

(2) PEOPLES DEMOCRATIC PARTY (PDP)

AND

(1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

(2) SULE AUDU ALHAJI

(3) ALL PROGRESSIVE CONGRESS (APC)

Equally, in the reply of the 1st Respondent to the petition dated 2- 2023 filed on the same date, the same fundamental error was made.

It is obvious in the face of the petition that the correct parties are: BETWEEN

(1) EMMANUEL DAVID OMBUGADU

(2) PEOPLES DEMOCRATIC PARTY (PDP)

AND

(1) INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

(2) SULE AUDU ALHAJI

(3) ALL PROGRESSIVE CONGRESS (APC)

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) 8 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.

By paragraph 12 of the 1st schedule to the Electoral Act 2022 the Respondent shall within 21 days of service of the petition or him file in the Registry specifying in it which of the facts alleged in the election he admits and which he denies and setting out the facts on which he relies in opposition to the election.

Where a party defending the election or return like the 1st & 3rd Respondents in this case failed to comply with paragraph 15 of the 1st schedule to the Electoral Act, 2022 result tendered by the Petitioner would be deemed unchallenged and uncontravened. See AGAGU VS. MIMIKO (2009) 7 NWLR PT. 1140 342. See also UZODINMA VS. IHEDIOHA (2020) LPELR 50260 (SC) pp 31-40 para E-D.

Although, some documents were tendered by the 1st & 3rd Respondents, the Law is that court of law will not permit a party to merely dump documents in the court without calling evidence in support. The court is not permitted to go home and interrogate the documents propert in the inner recess of its chamber. This will amount to shopping for evidence thus descending into the arena of the conflict. See ABUBARKA VS. INEC (2020) 12 NWLR PT. (1737) 37 at 130.

From the foregoing therefore, this case will now be a contest between the Petitioners and the 2nd Respondent, the 1st & 3rd Respondent: having technically knocked themselves out. This Tribunal regardless of that will still go ahead and decide this case on its merit.

In the course of trial of this case, some objections were raised, arguments deferred to the time of final written address and having listened to the counsel in the matter who argued in respect of the applications this Tribunal in the most interest of justice read, the Ruling of this Tribunal till today when Judgment is delivered.

  1. J. Numan, the learned counsel to the Petitioners applied to tender from the bar as resolved by the parties at the pre-hearing session in furtherance to paragraph 47 sub of the 1st schedule at the Electoral Act, the documents listed in the schedule of documents in serial no. 1-37, 33 48, 49-106, 109 211, 212-214 Alwazan Polling Unit result Bohar Sarkin, Kofar Magahi documents In 253 and 254, 255-304, 305-36, 369-392, 398, 390 399-402, 402″.

The Respondents’ counsel all objected to the admissibility of the documents. Three main criteria that govern the admissibility of a document in evidence are:

(a) Is the document pleaded?

(b) Is it relevant to the enquiry being tried by the court?

(c) Is it admissible?

See OKONJI VS. NJOKANNA (1999) 14 NWLR (PT 638) 250.

In the instant case, the documents in contention as listed in the schedule of documents were pleaded, relevant and admissible.

In the light of the above, the objections of the learned counsel to the Respondents were overruled.

  1. J. Numan, on 24-6-23 applied to tender the polling unit result of Ugah Primary School Code 011 for the State House of Assembly election of 18-06-23, the learned counsel to the 1st Respondent and the 2nd Respondent objected to the admissibility of Form ECSA and the second one which is whether the PW1 without being led in chief can be asked to identify a document that was not referred to directly or indirectly in the statement of oath.

On the admissibility, I am of the considered view that the document was pleaded, relevant and admissible. See OKONJI VS. NJOKANMA (supra)

On the 2nd objection, which is whether the PW1 could be asked to identify the document? I am of the considered view that once a written statement on oath is adopted, same has become the evidence in chief and he can as well be asked to identify a document, failure of which the party who defaults can be found liable of dumping. See ATIKU VS. INEC (supra) In the light of the above, the objections are overruled.

  1. S. Okutepa SAN, applied to tender a subpoena served on INEC (ICT) Director to produce and tender certain documents.

Ishaka M. Dikko, the learned counsel to the 1st Respondent, Adebayo Adelodun SAN, the counsel to the 2nd Respondent objected and Dr. Hassan Liman SAN, the counsel to the 3d Respondent also objected, they all canvassed the arguments at the address stage.

The law is that a subpoena is a court process commanding any person to attend court and produce a documents as evidence before it and the court cannot lawfully prevent such a person from giving evidence whose attendance was secured by its command due to its failure to file statement on oath. See (1) ONI V FAYEMI (2008) 8 NWLR PT 1089 400 at 442-443 (2) BUHARI VE OBASANJO (2005) 1 NWLR (PT. 941) (3) BASHIR & ANOR VE KURDULA & ORS. (2019) LPELR-48473 (CA).

In the light of the above, the objections of the 1st, 2nd & 3 Respondents are overruled.

  1. S. Okutepa applied to tender the certified true copy of BVAS repor for the governorship held on 18-03-23 listed on the schedule of document and certificate of compliance listed as no. 8 on the schedule of document filed on 13-7-23. The counsel to the Respondents objected and reserved their arguments till the address stage. Having read the argument of the counsel for the Petitioners and the Respondents, the criteria for admissibility of documents are:

(1) Is it pleaded?

(2) Is it relevant?

(3) Is it admissible?

The two documents were pleaded by the Petitioners in their petition, relevant to this case and at the same time they are admissible. In the circumstance, the objections of the Respondents’ counsel are overruled – See OKONJI VS. NJOKANMA (supra).

  1. S. Okutepa SAN, the learned counsel to the Petitioner applied to tender certified true copies of IREV printout of ECSA of Alwazan Madan in polling unit area of Sabon Gari of Doma Local Government from serial 1- 14 in the Petitioners’ schedule of documents listed as item no. 3 to 14 or the schedule of document, the Respondents objected and both the Petitioners and the Respondents’ counsel addressed the Tribunal in details at the address stage. On the authority of OKONJI VS. NJOKANMA (supra) since the documents in contention were pleaded, relevant and admissible, the Tribunal overruled the objections of the counsel to the Respondents.

The learned counsel to the petition in the person of J. S. Okutepa SAN applied to tender Form ECBAS of Azara Electoral Ward, item No. 2 on Exhibit SUB, 13 copies, they are listed as items 15-44 on the schedule of document, the certified true copies of Form EC8B for House of Assembly for Ashigie Electoral Ward, item No. 5 on the schedule of documents on Exhibit SUB 16, Form ECBB for Governorship Election for Ashigie item no. 4 on Exhibit SUB 16, a copy of Form EC8B for Kanje/Abuni ward, item no. 8 on Exhibit SUB 16, and item 17 on the schedule of documents, Form EC8B for Azara Electoral Ward of Ame Local Government item No. 7 on SUB 1 no. 46 on the schedule of document Form EC8B for Azara last page For EC8B of Sabongari at Doma Local Government which is item 48 on th schedule of documents, the certified true copy of voters register and For ECSA for Kofar Mogaji, Mari Angwan Makama Electoral Ward EC8A Ningo Bohar/Seriki polling unit code 005 in Akwanga Local Governmer listed on item no. 52 on the schedule of documents which is the same thing as item no. 9 on Exhibit SUB 16, the voters registers and Form EC8 for Sabon Gari which is item no. 11 on Exhibit SUB 16 the certified true copy of the voters register of Alwanzan code 009 polling unit, Sabon Ga ward Doma, two documents code 005 and page 22 of the voters register item no. 54, 55 and 58 of the schedule of documents. Five items PW witness (unsworn) produced in Exhibit SUB 16, the register of voters for Gayam ward in Lafia Local Government item no. 18 on Exhibit SUB 16 an item no. 15 and payment receipt for the certified copies.

The 1st, 2nd and 3rd Respondents counsel objected vehemently to the tendering and admissibility and reserved their reasons to the address stage and which made this Tribunal to reserve the Ruling till today.

Having perused the documents, this Tribunal is of considered view that the documents were pleaded, relevant and admissible. In the light of that, the objections of the Respondents counsel are consequently over-ruled. See OKONJI VS. NJOKANMA (supra).

On the 15-7-2023, the Director of ICT of the 1st Respondent or and person was subpoenaed to come and give evidence. However, Ishaka M Dikko SAN, the learned counsel to the 1st Respondent objected that the witness cannot testify without a written statement on oath and the same position was adopted by Adebayo Adelodun SAN, the learned counsel to the 2nd Respondent and Rotimi Oguneso SAN, the counsel to the 3rd Respondent. They all reserved their arguments till the final address stage.

Having read their arguments and that of the Petitioners’ counsel on the issue, this Tribunal is of considered view that on the authority of BASHIR & ANOR VS. KURDULA & ORS (2019) LPELR – 48473(CA) which says that a subpoena witness does not necessarily have to have witness deposition before such a witness could be allowed to testify and give evidence. See ONI VS. FAYEMI (supra).

In the light of the above, the objections of the Respondents’ counsel are over-ruled.

  1. S. Okutepa SAN, on 25-07-23 applied to tender Form EC8A for Azare produced by INEC vide Exhibit SUB 16 the Respondents counsel objected and the reasons was reserved till the address stage. Having read the arguments of Petitioners and the Respondents for and against the admissibility of the document, this Tribunal is the considered view that since the document was pleaded, relevant and admissible same admissible in law. See OKONJI VS. NJOKAMA (supra).

Furthermore, the Petitioners’ counsel applied to tender voter register to Ugah Primary School polling unit 011, the Petitioners sought to tender them as Exhibits, the 1st Respondent counsel objected and gave fuller reason at the address stage. The same line was towed by Dr. Hassan Liman SAN.

However, Adebayo Adelodun SAN added that J. S. Okutepa SA could not correctly say that he is the one tendering the document. The counsel argued that he introduced and produced the witness as witness unsworn: The counsel submitted that the law is that a document coming from him is tendered through the witness. He contended that a person who produced the document was merely to drop the document whether sworn or unsworn.

Having read the arguments of the counsel before the Tribunal in respect of the objection, we are of the considered vie that since the document is pleaded, relevant and admissible, it can come from anywhere. See TORTI VS OKPABI & (1984) SC. In t light of the above, the objections of the Respondents’ counsel are over-ruled.

The Petitioners counsel equally applied to tender the documents listed in items 28, 29, 30, 31, 36, 37, 38, 39, 42, 43, 44, 49, 53, 54, 57, 5 60 and 65 on the schedule of documents as produced and numbered I Exhibits SUB 16, the original receipt of the payment for certification voters registered for Chiroma/Ashigle ward and Form EC8AS for Azare and Shegie listed as item 6 on the schedule of document. The 1st, 2nd and 3rd Respondents counsel objected. The two sides gave their reasons at the address stage. Having read the arguments of the Petitioners and the Respondents counsel in respect of the application, the documents in contention were pleaded, relevant and admissible. In the light of that, the objections of the 1st, 2″ and 3″ Respondents are dismissed.

PW9 on face of the court record is Cletus Yakubu, J. S. Okutekpa applied to tender his agent card, voter’s card and PDP membership card.

However, Ishaka M. Dikko, Adebayo Adelodun SAN, Dr Hassan Liman, the counsel to the 1st, 2nd and 3rd Respondents respectively objected to the admissibility of same and reserved the reasons till the address stage. Having read the arguments by counsel to the Petitioners and that of the Respondents in respect of the issue, this Tribunal is of the considered view that general admissibility of evidence is based on relevance, once evidence probative of the fact in issue, it is considered to be relevant are therefore admissible, because relevance determined admissibility. Therefore, once a piece of evidence is relevant for proper determination of any fact in issue, the court is bound to admit it. See HARUNA VS. A. G. FEDERATION (2019) 9 NWLR (PT 1306) F 419 SC. The objections are consequently overruled.

The PW9’s membership card, his PVC and polling agent I. D. card are relevant and admissible. In the light of the above, the objections of the Respondents counsel are overruled.

Dr. Hassan Liman SAN, Ishaka M. Dikko SAN and Adebayo Adelodun objected to the re-examination of the PW9 and later gave fuller reasons at the address stage. Having read the reasons, adduced by the Petitioners and the Respondents in the most interest of justice, the Tribunal upholds the objection pursuant to paragraph 41 SUB 3 of the 1st schedule to the Electoral Act, 2022.

  1. S. Okutepa SAN applied to tender PW10’s voter’s card, agent card, the counsel to the 1st, 2nd and 3rd Respondents objected and the counsel to the Petitioners gave fuller reasons at the address stage.

This Tribunal is of the considered view that the PW10 voter’s card and agent’s card are relevant and consequently they are admissible. The objections of the Respondents counsel are overruled.

On 26-7-23, Ishaka M. Dikko objected to the calling of PW12 and swearing him to testify as a witness because he is a subpoenaed witness and he had no witness deposition. He promised to give reason at the stage of address. The same goes with Wole Olanipekun SAN and Mathew Burka SAN. Having read the fuller reasons given at the address stage by the counsel to the Respondents and read the arguments of the Petitioner’s counsel, this Tribunal is of the considered view that the objection lacked merit in the light of the Supreme Court decision in ONI VS. FAYEMI (supre BUHARI VS. OBASANJO (supra) and BASHIR & ANOR VS. KURDULA & OR (supra). In the light of the above, the objections are over-ruled for lacking in merit.

PW12 is James Allu, J. S. Okutepa applied-to-tender the subpoena issued on him on 10-7-23. However, Ishaka M. Dikko objected to the admissibility and to give reason at the address stage.

Chief Wole Olanipekun SAN treaded the same line and likewise Mathew Burkaa SAN, fuller reasons were given at the address stage Equally J. S. Okutepa SAN gave fuller reason at the address stage.

Having read the reason given by the counsel to the Petitioners and the Respondent, the Tribunal is of the considered view that since the document in contention is relevant, same is in law admissible. See HARUNA VS. A. G. FEDERATON (supra).

PW13 is one Dogara Angbo of Action Alliance for Chiroma ward, the subpoena was issued on 10-7-23 by the honourable Tribunal.

However, Ishaka M. Dikkö objected to his testimony on the ground that he was not having testimony of the witness. At the address stage fuller reasons were given by the counsel to the Petitioners and that of the Respondents.

This Tribunal is of the considered view in line with our position in the course of this Judgment that it is not necessary for the witness on subpoena to file the witness statement on oath before having the grace to give evidence in a trial, similar objections were raised to the testimony of PW13 by Chief Wole Olanipekun, Ishaka Dikko and Mathew Burkaa for the 1st, 2nd and 3rd Respondents. The Tribunal adopts our position and reaffirm that filing of witness deposition on oath is not a condition precedent for a subpoena witness to give evidence before a court of law or Tribunal. See BASHIR & ANOR VS. KURDULA & ORS. (supra).

  1. S. Okutepa SAN applied to tender the agent card of PW15, the counsel to the 1st, 2nd and 3rd Respondents objected and gave detailed reasons at the address stage. The said document is relevant. It is in the light of above that the objection of the Respondent counsel is overruled.

Furthermore, Chief Wole Olanipekun SAN for the 2nd Respondent, I. A. Ogah for the 1st Respondent and Mathew Burkaa SAN for the 3rd Respondent argued that PW15 could not make any reference to Exhibit F. This overruled him because this court will promote substantial justice as against technical justice.

On 27-7-2023, PW7 who was on 14-7-23 was subpoenaed to issue on INEC to produce and pursuant to the said subpoena he came to court on 14-07-23. Godwin Idiong appeared before this Tribunal but however did not come with the items requested for, the man now came to court pursuant to subpoena issued on 12-7-23 particularly that he should produce, tender and give evidence of BVAS machine and screed shot.

However, Chief Wole Olanipekun SAN, Mathew Burkaa SAN and I. A. Ogah the Respondents’ counsel objected to the man giving evidence without any application to recall him. Fuller reasons were given at the address stage.

The Tribunal is of the considered view that since the PW7 did not conclude his evidence coupled with the fact that he said be needed time to bring the other documents, it is in the light of the above, that the objections are overruled in the most interest of justice.

The learned silk, in the person of 1. S. Okutepa SAN applied to tender 207 BVAS machines produced by INEC pursuant to Exhibit 3 and screen shot showing the content of BVAS machine together with receipt for payment with certificate of compliance as PW7 in evidence, the 1st, 2nd and 3rd Respondents’ counsel objected to the tendering and admissibility in evidence with a promise to give fuller reasons at the address stage which was done and reply by the counsel to the Petitioners. The documents in contention were pleaded, relevant and admissible. In the circumstances the Respondents objections were overruled. See OKONJI VS NJOKAMA (supra).

  1. S. Okutepa SAN put a question to PW7 that he was asked to produce 218 machines of BVAS and screen shot containing content of the machine and that he produced 207 and the counsel asked the PW7 the whereabouts of the rest but Chief Wole Olanipekun SAN the learned counsel to the 2nd Respondent contended that the witness could not be asked the question, the same objection was adopted by Mathew Burkaa SAN and I. A. Ogah they gave fuller reasons at the address stage. This Tribunal is of the considered view that justice of this case will be served if the PW7 is allowed to explain on what happened to the remaining print out machines. In the circumstance the objections are overruled. The same applies to the objection as to the unit 34, 43, 46, 50 and 57. The objections are equally overruled.

On the 27th of July 2023, J. S. Okutepa SAN applied to tender Tag, PDP membership card and the permanent voters’ card of the witness.

  1. A. Ogah, the learned counsel to the 1st Respondent did not object to the admissibility of his voter card but objected to the admissibility of the other documents in evidence.

However, Chief Wole Olanipekun SAN, the lead counsel to the 2nd Respondent objected and Mathew Burkaa SAN the counsel to the 3rd Respondent also objected.

This Tribunal is of the considered view that the documents in contention are relevant and consequently admissible. See HARUNA VS. A. G. FEDERATION (supra).

Equally, in the course of trial, J. S. Okutepa SAN applied to tender PW17 Local Government Agent card membership card as Exhibits. The Respondents’ counsel objected to the admissibility. The said documents are admissible. Their objections are accordingly overruled.

At the resumed hearing of this case on 2-8-23, J. S. Okutepa SAN applied to tender the witness’ PVC, Tag and PDP Membership card, the Respondents counsel objected to the admissibility.

This Tribunal is of the considered view that the documents are relevant and at the same time admissible, the objections are accordingly overruled. See HARUNA VS. A. G. FEDERATION (supra).

Furthermore, on the same-date, Mathew Burkaa SAN, Adebayo Adelodun SAN, Ishaka Dikko SAN raised objection to the witness being shown Exhibits except Exhibit TOT2 and the counsel promised to advance reasons at the address stage. The learned counsel to the Petitioners equally gave reasons at the address stage.

This Tribunal is of the considered view that objections of the learned silk with due respect to them lack merit and same is overruled. This is not unconnected with the position of law that says the document must be shown to the witness for not to be liable for dumping. See BUHARI VS. OBASANJO (supra).

The learned counsel to the Petitioners in the person of J. S. Okutepa SAN, tendered the PDP agent card of PW19, the Respondents’ counsel objected and promised to give fuller reasons at the address stage.

This Tribunal is of the considered view that the said objections are overruled because document is relevant. On 16-8-23, J., S. Okutepa SAN applied to tender the proof of service of subpoena on PW20, the 1st & 3rd Respondents did not object. However, Adebayo Adelodun SAN the learned counsel to the 2nd Respondent raised an objection.

Having read the arguments of the counsel, this Tribunal is of the considered view that the document is relevant and consequently admissible in line with our position in course of the Judgment and the objection is overruled.

Furthermore, J. S. Okutepa SAN, consequently applied to tender the documents listed as items no. 1, 7, 8, 9 and 10 respectively as shown on Exhibit PS. They are listed as item no. 166 and that item 60 is the receipt of payment.

The counsel to the 1st, 2nd and 3rd Respondents objected and advanced their reasons at the address stage. On the face of the petition of the Petitioners, the documents were pleaded, relevant and admissible. See OKONJI VS. NJOKAMA (supra).

In the light of the above, the said objections are overruled. The same thing applies to the receipt and manual listed as item no. 68 on the schedule of document filed on 16-8-2023.

The learned counsel applied to tender Form EC8C serial, listed as item 69-81 for 13 local government area of Nasarawa State Item 68, manual registration and guidelines for the conduct of election 22, the receipt already tendered, Form EC8B series, 7 in number with receipt of payment, Form EC8AS series, for item 89-92. The Respondents counsel objected and promised to give fuller reason at the address stage.

Having perused the documents, the documents were pleaded relevant and admissible. In the circumstance, the objections of the Respondents are overruled.

  1. S. Okutepa SAN applied to the Tribunal to tender the subpoena issued on INEC as an Exhibit, the 1st Respondent’s counsel did not object, the 2nd Respondents counsel objected and promised to give fuller reason at the address stage.

This Tribunal is of the considered view that the document is relevant and same is consequently admissible. The objections are overruled. The same applied to the I.D card of the PW21.

  1. S. Okutepa applied to tender from the bar BVAS screen shot of items no. 2 and 3 on Exhibits SUB 310, the Respondents counsel all objected and promised to give fuller reason at the address stage.

Having read the arguments of the Petitioners and the Respondents counsel, the said documents were pleaded, relevant and admissible. In the circumstance the objections are overruled.

In the course of trial, arguments ensured between the Respondents counsel and the Petitioners counsel that PW21 should leave the court room on the production of the document asked to be brought. The Tribunal is of the considered view that the PW21 may not necessary leave the court until the party who initiated the subpoena finishes with him in the most interest of justice. In the instant case, after the production of the documents that were produced by the PW21 who was a subpoenaed witness, questions were still put to him. In the light of the above the objections of the Respondents counsel are overruled.

  1. S. Okutepa SAN applied to tender the receipt of payment of Exhibits PO207 and PO208 and certificate of compliance.

The Respondents counsel objected and promised to give fuller reasons at the address stage. The Petitioners’ counsel also gave detailed reason at the address stage. This Tribunal is of the considered view that the documents are relevant and consequently admissible. The objections are overruled.

The learned silk for the Petitioners applied to tender PDP membership card of PW22, PDP state collation agent, the Tag issued by the PDP, Tag from INEC recognizing him as PDP member agent together with his PVC and promised to give fuller reasons at the address stage.

The Respondents’ counsel objected to the admissibility of the documents in evidence. The said documents are relevant to the proceeding. In the circumstance, the objections of the Respondents are overruled.

Adebayo Adelodun SAN, sought to tender from the bar two documents, the certified true copy only certified by INEC which the polling unit agent submitted to INEC by parties and certified true copy of a Judgment in case no. EPT/NS/HR/15/2015 between HON. DR. JOSEPH HARUNA KIGBU & 1 OR. VS. ABUBARKAH SARKI DAHIRU & 9 ORS as Exhibit.

The counsel to the 1 & 3 Respondents did not object while Petitioners counsel objected. This Tribunal is of the considered view that the documents are relevant and consequently admissible. The objections of J. 5. Okutepa SAN is overruled.

On the 18th August, 2023, Ishaka M. Dikko SAN tendered from the bar Form EC40G for 36 polling unit of Ashige Electoral ward and one polling unit of Gayam Electoral ward (2) Form EC40G for 36 polling unit of Ashige Electoral ward of Lafia Local Government (3) Form EC8B for Kanje Abuni Abuni Electoral ward of Awe Local Government (4) Form EC8B for Gayam Electoral ward of Lafia Local Government (5) Form EC8B of Chiroma Electoral ward of Lafia Local Government (6) Form EC8C for 13 local government of Nasarawa State. The Form EC8D which is the summary of result for all local government for collation centre at state level. Form EC8E for declaration of result and receipt of payments of certification of result.

The counsel of the 2nd and 3rd Respondents in the person of Adebayo Adelodun SAN and Dr. Hassan Liman SAN did not object with a promise to give fuller reason at the address stage.

However, J. J. Usman SAN the learned counsel to the Petitioners objected and submitted that the said documents are not admissible and that they are worthless piece of paper.

This Tribunal is of the considered view that the said documents are relevant to this proceeding and consequently admissible in evidence. It is firmly settled that a document can be admitted in evidence based on relevance. See FADALLAH VS. AREWA TEXTILES LTD. (1997) 7 SCNJ 202 at 201 PER OGWUEGBU JSC.

In light of the above, the objection of the learned silk for the Petitioners is overruled. We hold that the documents tendered from the bar by counsel to the 1st Respondent in the person of Ishaka M. Dikko SAN are admissible.

The 2nd Respondent opened his defence on the 19 August, 2023, Adebayo Adelodun SAN the learned silk for the 2″ Respondent applied to tender from the bar the certified true copy of document issued by the 1st Respondent (4 sets).

The 1st set covers, serial no. 1 – 31, on the schedule of documents being certified true copy of Forms EC8A of polling unit, where the 2nd Respondent complained of exclusion of the votes, documents on pages 4 to 5 of the schedule covering 7 Local Government Form ECSAS of 29 polling units where 2nd Respondent is objecting to votes, the receipts of payment made to the 1st Respondent for the certification.

The counsel to the 1st and 3rd Respondents did not object to the admissibility. However, J. S. Okutepa SAN, the learned silk for the Petitioners contended vehemently that the documents are not admissible in evidence.

On the face of the record of the Tribunal, the documents in contention were pleaded, relevant and admissible.

In the light of the above, the objection of J. S. Okutepa SAN is overruled. This Tribunal is of the considered view that the documents are admissible.

RW1 in this case is Aliyu Bello. Adebayo Adelodun SAN, sought to tender his APC I. D card and Tag. Ishaka M. Dikko SAN, the counsel to the 1 Respondent did not object to the admissibility. Rotimi Oguneso SAN also did not object to the admissibility of the two documents in evidence. However, J. S. Okutepa SAN objected.

Having read the arguments for and against the admissibility of the documents by the counsel for the parties, this Tribunal is of the considered view that the documents are relevant.

Generally, admissibility of evidence is based on relevance. Therefore once a piece of evidence is relevant for proper determination of any fact in issue, the court is bound to admit it. See FAWEHINMI VS. N.B.A (NO. 2) (1989) 2 NWLR (PT. 105) 558.

Ishaka M. Dikko SAN, tendered from bar, the certified true copy of the political parties collation accredited agents by INEC for APC, NNPC and PDP for Nasarawa State for the Governorship Election and House of Assembly Election conducted on 8 March, 2023 particularly for wards and local government of Nasarawa State. The 2nd and 3rd Respondents did not object. The Petitioners counsel objected. This Tribunal is of the considered view that the document is relevant and consequently admissible. The objection of J. S. Okutepa SAN, the learned silk for the Petitioners is overruled.

On 26 August 2023 at the continuation of the defence of the 2nd Respondent, J. S. Okutepa SAN, applied to tender 14 copies of Form EC8AS as downloaded on IREV including polling unit result, the receipt of payment, certificate of compliance and one Form EC4OG.

The counsel to the 1, 2 and 3 Respondents objected. Having read the arguments proffered for and against the admissibility, this Tribunal is of the considered view that the documents are pleaded, relevant and admissible. In the light of that, the objection of the Respondents counsel are overruled. J. J. Usman SAN, applied to tender a document through the witness who identified the duplicate copy of the polling unit and the code.

The Respondents counsel objected. Having read the arguments of the counsel to the Petitioners and the Petitioners, this Tribunal is of the considered view that since the document is pleaded, relevant and admissible. It is admissible. The objections of the Respondents counsel is overruled.

  1. J. Usman SAN applied to tender the duplicate copies. The counsel to the Respondents objected. Having read the arguments of the counsel for the Petitioners and the Respondents, this Tribunal is of the considered view that the documents were pleaded irrelevant and admissible. In the circumstances, the documents are admissible; in the circumstances the objections are overruled.

The 3rd Respondent tendered some documents through one unsworn witness. The 2nd and 3rd Respondents did not object while the Petitioners counsel objected. This Tribunal is of the considered view that the agents and that the Petitioners subpoenaed PWS, PW6 and PWB PW10 and PW21 while PW7 and PW8 respectively who were subpoenaed for the 2nd time. He argued that the Petitioners star witness was PPW22 who was the Petitioners Local Government collation agent for Keana Local Government but claimed to be the Petitioners’ state collation officer.

The learned silk submitted that the testimonies of PW1, PW2 and PW11 are hearsay and that the law is trite that hearsay evidence is admissible. He referred to Supreme Court decisions in LADOJA VS. AJIMOBI (2016) LPELR 40658.

On allegation of wrong entries from Form EC8AS into Form ECBB in Azare and Kanje Ibuni Electoral wards of Awe Local Government. Ishaka M. Dikko contended that PW3 did not speak to Exhibits 1 31 which are polling unit result made of difference polling units. He referred to the case of APGA VS. ALMAKURA & ORS. (2016) LPELR 47053. The learned counsel to the 1 Respondent argued that the Supreme Court laid down the requirement for proving over voting under the Electoral Act 2022 in the case of OYETOLA & ANOR VS. INEC & 2 ORS. 2023 and argued further that the Petitioners did not tender the voters register from polling unit complained to enable PW15 and P18 speak to the said documents and that the BVAS for the affected polling units were also not tendered in fragrant violation of the Supreme Court in OYETOLA & ANOR. VS. ADELEKE & ORS. (supra).

The 1st Respondent further contended that the Petitioners have failed to prove the allegation of over-voting in Gadabuke and Ihamkpe polling units of Gadagwa and Shege 1 Registration area of Toto Local Government Area.

The 1st Respondent argued that argument on non-collation of polling unit result of Alwazan into Form EC8B crumbled on their faces during cross examination when PW9 identified unit result of Alwazan polling unit (Exhibit SUB3) wherein PW9 confirmed that the total number of accredited voters is 326 while 326 valid votes and 1 valid which means that the total number of votes cast is 327 which is in excess of the number of the accredited voters which is 326.

The 1st Respondent counsel referred to Regulation 48(a) of the INEC Regulations and Guidelines for the conduct of elections.

On the allegation of inflation of result in Gayam and Chirom wards Lafia Local Government area, the 1st Respondent argued that the Petitioners claimed that the result of the election were inflated in favour of APC in Gayam ward wherein the scores of 29,857 vote was wrongly entered for APC while 1,453 was wrongly entered for PDP Instead of 9,753 for APC and 2,979 for the PDP and that in proving their claim the Petitioners subpoenaed PW12 and that which made the 1st Respondent to raise objection to the competency of the witness to give oral evidence- without a written deposition in line paragraph (4)(3) of the first schedule to the Electoral Act, 2022. The counsel argued further that his testimony did not establish the claim of the petitioners. In Gayam ward, the learned counsel argued that PW12, PW13 and PW16 were not present when the entries in the results across all the polling units and wards in contention in Gayam and Chiroma wards were made and that evidence of PW12, PW13 and PW16 are inadmissible. He referred to the case of ANDREW & ANOR VS. INEC & ORS (2017) LPELR 48518 SC per OKORO JSC.

On the Petitioners star witness, Ayiwulu Baba Ayiwulu, the learned silk argued that his evidence is mere regurgitation of the entire petition and of little or no evidential value and that his evidence on allegations in the petition is essentially hearsay and that during cross examination, PW22 admitted that there is error in the table attached to the witness statement. The counsel referred to the case of CHIEF OKE & ORS. VS. DR. MIMIKO & ORS. (2014) 1 NWLR (PT. 1338) 33 and the case of ADOKWE & ANOR. VS. ALMAKURA & ORS. (2019) LPELR 48750. It is the submission of the 1st Respondent’s counsel that his testimony is laced with lies.

On the 2nd issue formulated for determination which is whether the Petitioners are entitled to the reliefs sought having regard to the evidence led by the Petitioners in this petition.

The learned counsel adopted his argument in respect of issue no.. and contended vehemently at the evidence of PW3, PW4, PW10 and PW11, PW12, PW13, PW14 and PW16 who are all ward collation agents as well as the evidence of PW17 who is the local government collation agent and PW22 who claimed to be the state collation agents of the Petitioners are all hearsay evidence.

The 1st Respondent argued that the Petitioners have failed to prove their case. The counsel referred to the case of ZENITH BANK PLC VS. JOHN (2015) 7 NWLR (PT 1458).

The 1st Respondent equally adopted its reply on the point of law to the final written address and address in respect of the objection to the admissibility of the documents in the course of this trial.

The 2nd Respondent adopted the final written address dated 2-9-2023 as his argument in respect of the case. In the process, the 2nd Respondent reply on the point of law and the address in respect of the objections to admissibility of the documents tendered in the course of the trial by the Petitioners were also adopted by the senior learned silk.

In the 2nd Respondent final written address, he formulated the following issues for determination. They are as follows:

  1. Having regard to the sacrosanct nature of the reliefs presented by any Petitioners) 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?
  2. Whether considering the ultimate reliefs being sought by the Petitioners in paragraph 104 of the petition, as well as the frontloaded witness statements on oath, the petition is not liable to be dismissed for disclosing reasonable cause of action?
  3. Whether in the circumstance of this petition, the Petitioners have proved the allegations in their petition to be entitled to the reliefs sought therein.
  4. Whether the Governorship Election held in Nasarawa State on the 18th day of March, 2023 was not conducted in substantial compliance with provisions of the Electoral Act, 2022, the Guidelines and the Manual Election Officials 2023?
  5. Whether the 2nd Respondent has not proved his entitlement to his claim regarding improperly calculated exclusion of votes as well as those in his notice of objection to the votes of the Petitioners?

The learned counsel argued the two issues together and contended that assuming but not conceding that evidence led by the Petitioners is of any substance, in reality of the ungrantable reliefs, the evidence becomes academic and not worthy of consideration.

The counsel submitted that a careful perusal of the entire reliefs claimed by the Petitioners reveal that this honourable Tribunal cannot grant these reliefs. That the reliefs are ungrantable because they constitute a disharmonious prayers or reliefs not capable of sustaining an election petition envisaged by the Electoral Act.

The counsel referred to MACFOY VS. UAC and argued that the Petitioners are praying for withdrawal of certificate even when they did not pray that the election be nullified or specifically that the return of the 2nd Respondent be nullified.

It is the submission of the learned silk that at the close of the case of the Petitioners, none of the petitioners’ witnesses on record was able to establish or state the exact or proper computation in relief (b) on which they want this honourable Tribunal to grant (c) that it is to declare that the 1st Petitioner scored the highest number of lawful and valid votes cast in the election and sought to have been returned and should be returned elected as the Governor of Nasarawa state.

The learned counsel urged the court to declare reliefs (b) and (c) ungrantable as well as discountenance with other reliefs.

On issue no. 3, the counsel contended that the testimony of the subpoenaed witnesses are incompetent for failure to file witness statement on oath.

The counsel referred to the case of ADVANCE NIGERIA DEMOCRATIC PARTY ANDP VS. INEC & 2 ORS CA/A/EPT/406/2020.

The counsel argued that the Petitioners failed to tender and demonstrate documents by the witness.

On the 2nd issue formulated which is whether the Petitioners are entitled to the reliefs sought having regard to the evidence led by the Petitioners in the petition, the counsel argued that the Petitioners failed to demonstrate the documents by their maker. The learned counsel to the 2nd Respondent argued that a Petitioners cannot skip evidence of what transpired at the polling unit because it is there that accreditation, voting, collation and declaration of voters are done and if there was an alleged irregularities it is those who were present who can give admissible and reliable evidence. He referred to ANDREW VS. INEC (2018) 9 NWLR (Pt. 1625) 527 at 567. The 2nd Respondent contended that collation of votes in Ashigie ward was not proved by the Petitioners.

On issue No. 4 formulated by the 2nd Respondent, the learned senior counsel argued that PW8, Ama Ibom Aguwan Deputy Director of ICT INEC Headquarters subpoenaed stated the obvious and admitted during cross examination that the Governorship election that produced the 2nd Respondent were conducted in substantial compliance with the provisions of the Electoral Act and the guidelines at his own disposal.

This Tribunal wants it to be noted at this juncture that the said PWB 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. See ONAFOWOKAN VS. STATE (1987) 3 NWLR (PT 6) 538 at 533 per OPUTA JSC.

The 2nd Respondent contended that from the analysis of the evidence led by the Petitioners in proof of their petitions that it is obvious that the Petitioners have failed to prove that the Election in question was not conducted in substantial compliance with the provision of the Electoral Act since no serious or credible oral evidence of witnesses who participated in the election was adduced or called.

On issue which is on none collation of the 2nd Respondent votes. His contention is that 2 Respondent votes were reduced at the respective ward collation centres. The 2 Respondent counsel submitted that the RW1-RW21 demonstrated in court that the votes of the 2nd Respondent was not properly collated as shown on Exhibit RW101, RW62, RW61, RW100, RW57, RW56, RW43, RW44, RW45, RW46, RW47, RW48, RW49, RW50, RW51, RW52, RW53, RW54, RW55, RW56, RW63, RW64.

In the 3d Respondent’s counsel final written address dated 4-9-23, reply on point of law and the address filed in respect of the documents tendered in the course of the proceedings were adopted by Dr. Hassan Liman as his argument in respect of this case.

The arguments of the 3rd Respondent are all the same with the ones canvassed by the 1 & 2 Respondents.

The Petitioners counsel equally filed final written address dated 8-9-23 which was adopted by Kanu Godwin Agabi SAN as his argument in respect of this case.

In the said written address a lone issue was formulated for determination. It is as follows:

“Whether from the totality of the evidence adduced, the 1st Petitioner is not entitled to be declared as the duly elected Governor of Nasarawa state having scored the highest number of valid votes cast at the election and satisfied the requirement of the 1999 constitution (as amended) and the Electoral Act 2022”.

As a preliminary issue, the Petitioners argued that 1 & 3rd Respondents have no valid or competent replies to the petition as they repeatedly listed as a party to the proceeding one Sule Audu Adamu who is a complete stranger. The counsel to the Petitioners cited RE-APEH & ORS (2017) LPELR 42035.

The Petitioners argued that paragraph 35 of the Regulations and Guidelines for conduct of elections 2022 requires that the result collated in Form EC8B must all emanate from result entered in Forms EC8A and that in the instance case, the result incorrectly entered in Form EC8B are totally and completely different from those contained in Forms EC8A from various polling units and that the result entered in Form ECSB did not originate from Form EC8A in Chiroma ward, Chiroma ward, Ashigie ward, Kanje/Abuni ward, Azare ward Alwazan polling unit.

It is the submissions of the Petitioners that there was over-voting in Buhar/Seriki Polling unit (Ningo/Buhar Electoral ward).

It is the case of the Petitioners that subpoena was issued on 11-7- 2023 and that the subpoena in addition to the Exparte Order of this honourable Tribunal granted on 22-3-23 for Petitioners to access and obtain certified true copy of all Electoral materials including voters register.

The counsel urged the Tribunal to invoke the presumption of withholding evidence pursuant to section 167 of the Evidence Act, 2011.

The counsel argued that there were over-voting in Ibofar/Serid Polling Unit (Ningo Buhar Electoral ward, Kofar Mogagi Ser/Angwan Makama Area code 018, Gadabuke polling unit of Gadagwa Electoral-ward, Thempe B code 010 of Shegle I ward of Toto Local Government Area.

Having listened to the witnesses called by the parties in this case and read all the evidence on the face of the court record, this Tribunal has carefully formulated the following issues for determination. They are as follows:

  1. 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?
  2. Whether considering the ultimate reliefs being sought by the Petitioners in paragraph 104 of the petition, as well as the frontloaded witness statements on oath, the petition is not liable to be dismissed for disclosing reasonable cause of action?
  3. Whether in the circumstance of this petition, the Petitioners have proved the allegations in their petition to be entitled to the reliefs sought therein.
  4. Whether the Governorship Election held in Nasarawa State on the 18th day of March, 2023 was not conducted in substantial compliance with provisions of the Electoral Act, 2022, the Guidelines and the Manual Election Officials 2023?

On the 1st Issue which is on the jurisdiction, the 2nd Respondent contended that the way and manner the Petitioners couched their reliefs in paragraph 104, robs this Tribunal of its jurisdiction.

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. The reason for this is because jurisdiction is fundamental to the competence of the court adjudicating. It is the foundation upon which the entire adjudication process is founded. It has been described as the livelihood of adjudication without which a court or Tribunal would lack the vires to entertain the proceedings ab initio. Any decision reached without jurisdiction, no matter how well conducted is a nullity to be set aside. See (1) MADUKULU VS. NKEMDILIM 1962 2 SCNLR 341(2) JAMES VS. INEC (2015) 12 NWLR PT 1474 page 538 at 576-577 para F-D KEKERE-EKUN JSC. (2) SOLOMADE VS. KUTI (2022) 1NWLR (PT 1810) 31 (4) MAKU VS. SULE (2023) 3 NWLR (PT 1817) 231.

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. The court does not sacrifice substantial justice on the altar of technicalities. See UMANA VS. ATTAH (2006) 2 EPR 594 at pages 630-631.

Election matters like the instant case are special, sui generis and call for actual and bona fide justice where substantial justice overrides technicalities. 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. Justice can only be done if the substance of the matter is looked to in the interest of justice. Trivial and trilling mistakes are likely to be made by litigants and counsel from time to time. This should however not deprive a party from having his complaint or matter properly ventilated and determined on the merits. See MAITUMBI VS. BARAYA (2017) 2 NWLR PT (1550) 347.

In the light of the above, this Tribunal is of the considered view that this Tribunal has jurisdictional competence to adjudicate on this case.

On the 2nd issue which is whether the Petitioners have proved the allegation in the petition to be entitled to the reliefs sought, justice cannot be done to that issue without knowing on whom lies the burden of proof under our adversary system litigation?

The primary onus proof in civil cases lies on the Plaintiff/Claimant/Petitioner/Applicant as the case may be. See (1) KUMA VS. KUMA (1934) WACA 178 (2) MOGAJI VS. ODOFIN (1978) 4SC 91 (3) EKWEOZO VS. REG. TRUSTESS S.A.CN (2020) 11 NWLR (PT 1734) 51 PP 87-88.

Another question is whether the Petitioners in the case have discharged the burden of proof? Justice cannot be done to that answer without knowing the case of the Petitioners.

The summary of the case of the Petitioners is that polling unit results i.e. Form EC8AS of some polling units contradict the result entered in Form ECBBS which are ward results which was consequently affected by the Election result declared by the 1st Respondent and that the 2nd Respondent did not score the majority of the lawful votes cast on 18-3-23, The Petitioners alleged that the affected wards are Chiroma ward, Gayam ward, Ashigie ward, Kanje Abuni ward, Azara ward, Alwazan Mada.

Equally, the Petitioners contended that there were clear cases of over- voting in Buhar/Serki Polling unit (Ningo/Buhar Electoral ward, Kofar Mogagi Angwan Makaman Area code 018, Gadabuke polling unit of Gadagwa Electoral ward, Ihemkpe code 010 of Shegie 1 ward of Toto Local government.

In proving their case, the Petitioner called 22 witnesses who gave evidence and through them several documents were tendered and admitted in evidence as Exhibits.

However, the Respondents objected to the competence of the testimony of PW12 and PW17 who were agents of political parties subpoenaed by the Petitioners without any written statement on oath and without their names being listed in the list of witnesses.

Equally the 1st Respondent submitted that PWS, PW6, PW7, PW12, PW13, PW20 who did not have written statement on oath should have their evidence expunged from the record of the honourable Tribunal. They all referred to Advance Nigeria Democratic Party VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION INEC & ORS (supra). In the overruling the Respondents on the competence of the evidence of PWS, PW6, PW7, PW12, PW13, PW20 who were subpoenaed to give evidence without filing witness statement on oath. I am guided by the decision of the Court of Appeal in BASHIR & ANOR VS. KURDULA & ORS. (2019) LPELR 48423 CA where it was held as follows:

PRINCIPLE

ELECTION PETITION DECISION OF ELECTION PETITION TRIBUNAL Effect of the decision of an Election Tribunal preventing subpoenaed witnesses from testifying on ground of non-filing of witness depositions of oath, whether same amounts to denial of fair hearing. The Tribunal issued a subpoena dated 15-6-2019 and duly signed by the chairman of the Tribunal summoning the three (3) INEC officers to appear before it on 17-6-2019. On the said 17-6-2019 when the subpoenaed witnesses appeared before the Tribunal to give evidence, objections to the witnesses giving oral evidence without witness depositions on oath was made by all counsel to Respondents, except 3″ 16″ Respondents.

After the arguments of counsel in support and against the Tribunal in a well-considered bench Ruling sustained the objection and held that; “In the absence of a deposition, the witnesses cannot give evidence on oath in this petition”. It is important to note, going forward, that the issue raised by decision of the Tribunal has been one which is clearly governed by paragraphs 41(3), (5) & (6) of the 1st Schedule to the Electoral Act, 2010 and the relevant Practice Directions on the issue, which deal with the filing of witnesses expected to testify before the Tribunal. There are also quite a number of judicial pronouncements on the issue, to the effect that the said paragraphs 41(3), (5) & (6) of the 1 schedule to the Electoral Act, 2010 and the relevant Practice Directions on the issue cannot override the provisions of the Evidence Act, 2011 (as Amended)and also that the Practice Directions, on the issue do not have the effect of eviscerating the right of witnesses to testify who have been brought to court to give oral evidence pursuant to the issuance of subpoena by the Tribunal. See the case of YUSUF SULAIMAN LASUN VS. LEO ADEJARE AWOYEMI & ORS (2009) 16 NWLR (PT, 1168) 513 at 548-549 (CA) where this court per OGUNBIYI, JCA (as he then was) had this to say on the subject: “it cannot therefore be within the contemplation of the provision of this 1st schedule to the Electoral Act, 2010 (as amended) which is the Practice Directions in election petitions that the Respondent should sign a witness statement or deposition on behalf of the Petitioner whose allegations of irregularities were against the said party. In other words, it is not within the expectation of the said Practice Directions that the Petitioner would frontload the statement of the Respondent. By mere fact of the subpoena having been issued, the witness is bound to be sworn on oath to testify and be cross-examined. The authority in the case of ONYEMELUKWE V. ALBERTO (2001) All FWLR (Pt 83) 2166 at 6184 is relevant….” The general provision of the Practice Direction on frontloading of witnesses’ deposition on oath only contemplates willing and voluntary witness and not one who had to be compelled by an Order of the court to testify by way of subpoena. It is not logical therefore that a party should prepare witness deposition for his adversary who is a Respondent against the petition. Expecting that such witness would sign and adopt the deposition is beyond human reasoning …See also the case of ALHAJA AYO OMIDIRAN VS. ETTECH PATRICIA OLUBUNMI & 343 ORS. (2010) LPELR- 9160 (CA), where this court also per KEKERE-EKUN, JCA (as he then was) had this to say on the subject, “A subpoena is a court process commanding any person to attend the court and produce a document or evidence before-it. This-principle was well enunciated by their Lordships of the apex court In the case of MUHAMMED BUHARI &am; anor V. CHIEF OLUSEGUN AREMU OBASANJO (2005) 1 NWLR (Part 941) 1 wherein same was interpreted as an order or writ of court, which may be for the person to attend the court and testify only, in other words called subpoena ad testificandum or for him to produce document in his possession or control referred to as subpoena duces tecum. A subpoena simplicita could also require the person to both. See the case of AMBASSADOR ODU V. DUKE &amp, Ors. (2006) 1 NWLR (Part 961) 375 at 391 a decision of Court of Appeal citing Fidelis Nwadialor; Civil Procedure in Nigeria, 2nd Edition, 200 at 652. The effect of subpoena ad testificandum is that there is an obligation on the person subpoenaed to give evidence. “Arising from the foregoing, what seemed rather surprising, is that the Tribunal, having “commanded”. (in the words of the noble Lord, KEKER-EKUN, JSC in OMIDIRAN’S case – supra), a person to attend the court at a given date, to give evidence on behalf of the party or bring with him and produce any specified documents required by the party as evidence, will make a somersault upon the attendance of the witnesses, to prevent the said witness whose attendance was secured by its command from giving evidence in the petition, due to reason of failure to file a deposition of witness’ statement on oath. It will be noted that for the Tribunal to have turned around to insist on the production of deposed witness statement on oath from subpoenaed witnesses is not to have rightly insisted on the compliance to the Practice Directions on the issue providing for the front loading of witness statements along with the petition, but to have by so doing sought to “chole, throttle or asphyxiate justice as they (Practice Direction) are not a sine qua non in the just determination of a case and therefore not immutable”. See the cases of DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 19 NWLR (Pt 959) 130 at 142-143 H A cited with approval by SANKEY, JCA in ONI VS. FAYEMI (2008) 8 NWLR (1089) 400 at 442 H-B. The Tribunal, having refused the subpoenaed witnesses from testifying, having initially issued subpoenas for their testimony, cannot be said to have conducted the proceedings before it impartially and fairly and this court is therefore in agreement with the learned Appellants’ counsel when he said that the conduct of the Tribunal by so doing eviscerated the Right to fair hearing of the Appellants. “Per FREDERICK OZIAKPONO-OHO, JCA (Pp 46-51 paras).

As held in the course of this Judgment, the 1 Respondent did not call any witness but its counsel only tendered some from the bar which nobody spoke to.

The Law is that an Exhibit tendered from the bar without calling the maker as done in the instant case attracts no probative value because there is no opportunity given to the other party to cross examine the maker for the purpose of tendering its veracity. A court is not allowed to embark on an inquisitional examination of documents outside the court room. See (1) OMISORE VS. AREGBESOLA (2015) NWLR (PT 1482) 205 (2) PDP VS INEC (2022) 18 NWLR (PT 1863) 653.

From the foregoing, this Tribunal is of the considered view that all the documents tendered from the bar by the learned silk for the 1st Respondent attract no probative value.

Furthermore, the 1st Respondent and indeed the 2nd & 3rd Respondents contended that failure of Petitioners to call polling agents in this case is fatal to their case. The counsel referred to the case of AJIMOBI VS. LADOJA supra.

In the instant case, the case of the Petitioners is basically documentary their case is that polling unit result in Form EC8AS tendered as Exhibits were not correctly entered in Form EC8B which are ward result at the time of collation in some of the wards earlier mentioned in the course of this Judgment.

For just determination of a case, the proof is not dependent upon the number of witnesses called but rather the credibility thereof, the evidence of one credible witness will stand tall and weighty as against multiple witnesses whose evidence is to the contrary. See PDP VS. INEC supra.

The law is that in the hierarchy of election results, Forms EC8A(1) or EC8A(ii) being polling unit result sheet occupies the base of the election pyramid and it is essential that they are produced in evidence to prove that election was held. It is also the foundation material on which all collated results at the ward, local government and other collation levels are confirmed. See INEC V. RAY (2004) 14 NWLR (PT 892) 92 137.

On the face of the court record, particularly from the evidence of the PW1 PW22 and Forms EC8AS tendered and admitted in evidence the entries in Forms EC8AS contradict that of the Form EC8B.

This Tribunal is of the considered view that Forms EC8A tendered and admitted in evidence in this case is documentary evidence. The Law is settled that documentary evidence is a hanger upon which to base other pieces of evidence. Documents when tendered and admitted in evidence in court are like words altered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of man because they are neither transient nor subject to distortion and misrepresentation but remain permanent and indelible through the ages. Documents bear eloquent testimony to what happened. See OLOWU VS. BUILDING STOCK LTD. (2018) 1 NWLR (PT 1601) 343 at 398 paras D-G.

In the light of the above, this Tribunal holds that the Petitioners do not need to call the polling agents in all the affected areas to succeed in proving their case.

The Respondents also contended that the evidence of PW3, PW10, PW12, PW16, PW17, PW22 and other subpoenaed witnesses are inadmissible for being hearsay and inadmissible and therefore worthless.

The Law is settled that evidence of events in a polling unit or collation centre does not become hearsay for the simple reason that it is not given by the presiding officer or a voter or a polling agent or a collation agent or other person assigned with the statutory responsibility for the conduct of an election. What is important is that for the evidence of events of a polling stations 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. See LAGOS VS. AWOYEMI (2009) 16 NWLR (PT1168) 513, 553-554 AREGBESOLA VS OVINLOLA (2011) 9 NWLR (PT 1253) 43.

In SDUADE VS. OYEWOLA reported In (2012) 11 NWLR (PT 1311) 280, 299-300, the Court of Appeal held as follows:

“I agree with the Tribunal that a ward supervisor of a political party is not one of the categories of persons specially mentioned in the Electoral Act sections 46(1) and 62(1) and the INEC manual for the 2007 election such species of political party personnel is not permitted to be at a polling station on an election day or during the election, would not by that fact alone automatically make the evidence of such a person inadmissible. If a person breached the law and unlawfully finds himself in a polling station during an election when he ought not to be there the allegation of his presence at the polling station would not automatically translate to inadmissibility of the evidence of what he saw as experienced or witnessed at that polling station. Such evidence is analogous to evidence, its illegally or unlawfully obtained even in criminal cases, except in the case of Involuntary confessional statement, unlawfully evidence if relevant is admissible.”

In the light of the above, the Tribunal is of the considered view that the evidences PW1, PW2, PW3, PW4, PW8, PW9, PW10, PW11, PW12, PW15, PW16, PW17, PW18, PW19, PW20, PW21 and PW22, are not hearsay evidence and consequently that the said witnesses are competent witnesses.

The 2nd and 3rd Respondents contended that there were over voting. In OYETOLA & ANOR VS. INEC & ORS reported (2023) 11 NWLR (PT 1894) 125 it was decided by the Supreme Court that the party alleging over-voting must present (1) voters register of the polling units complained of together with (2) the BVAS machines and (3) certified reports of accreditation data of the affected poling units and (4) the Forms EC8A.

In the instant case, the 2 and 3d Respondents failed woefully to meet the above conditions because they failed to tender the said documents in evidence and consequently this Tribunal hold that their objection to vote is baseless and consequently discountenanced by this Tribunal.

By virtue of section 131(1) of the Evidence Act 2011, whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See OYETOLA VS. INEC (supra).

On the face of the court record, evidence was led by the Petitioners that election was conducted in 100 out of the 102 polling units in Chiroma ward except polling units code 084 and 097 and that the results were duly entered in the Forms EC8AS. The case of the Petitioners is that it is the polling unit result so entered in Form EC8AS that was expected to be transferred in Form EC8B and consequently to other Forms.

Forms EC8AS for Chiroma ward were tendered and admitted in evidence in this case by this Tribunal as Exhibits 109-208.

On the face of the court record, in the instant case the result entered in Form EC8B are significantly different from those contained in Form EC8A from the various polling units in Chiroma ward.

It is obvious that the total valid votes scored by the 2nd Petitioners as recorded in Forms EC8A is 3,308 while that of the 3rd Respondent is 15,043 as shown on Exhibits 109-208.

In other words, the incorrect result entered in Form EC8B is 48,729 votes for 3 Respondent and 854 votes for the 2 petition.

From the evidence of PW16, the ward agent for Chiroma ward who gave evidence that scores in Exhibits 109-208 were incorrectly entered in Exhibit 209 by the 1st Respondent and that the correct results or scores of the 2nd Petitioner and the 3rd Respondent in Chiroma Electoral ward of Lafia Local Government Area is 3,308 and 15,048 contrary to what was entered in Exhibit 209 which is in Form EC8 for Chiroma Electoral ward.

In OKAFOR OKOREATTA & ANOR VS. HON. AGWU U. AGWU & ORS (2010) LPELR 4708(CA). It was held by Lord Ogunwumiju JCA (as he then was) where the outcome of an election is challenged on the ground that he winner did not have majority of lawful votes, the duty of the Tribunal is to determine the actual result and add them up.

In the light of the above, this Tribunal deducted 33,654 votes incorrectly given to APC and add 2,454 votes wrongfully subtracted from the votes of the Petitioner as the same is the valid votes from Chiroma ward.

In Gayam ward, the case of the Petitioners is that the votes of the parties in the polling stations were incorrectly entered in Form EC8B shown in Exhibit B59.

One James Alu gave evidence as PW12 and Talmako Sunday Anyuabaga gave evidence as PW17:1

“The evidence of PW12 and PW13 is that results that ought to have been collated in Form EC8B were those which originated from the polling units, but that was not the case in GAYAM ward where the scores of the parties as reflected in the Forms EC8A (Exhibits B1 to B58) were incorrectly entered into Form EC8B (Exhibit B59). Comparison of the entries in Exhibit B59 with the entries in Exhibits B1 to B58 will make this evidence. PW12 and PW13 gave evidence that all these incorrect entries were to the detriment of the Petitioners and the benefit of the 2nd and 3rd Respondents”.

It is their evidence that the scores incorrectly recorded in Exhibit 859 were in turn collated into Form EC8C of Lafia Local Government Area (Exhibit 318) and subsequently collated into the state summary form EC8D (Exhibits R1 and R2). On the face of the court record, the final overall score of the 2nd

Respondent was given as 347,209. This formed the false basis for the declaration by the 1 Respondent of the results in Form EC8E dated 18th March, 2023 (Exhibit R3 and R4).

This Tribunal discovered that due to the incorrect entries, the total number of votes of the 2nd and 3rd Respondents in Gayam ward was given as 29,857 instead of the correct score of 9,753 while that of the Petitioners was reflected as 1,453 instead of the actual score of 2,979 derived from Exhibits B1 to B58. This piece of the evidence was neither controverted nor denied by the Respondent.

It is the case of the Petitioners that in Ashigie ward, elections were held in 35 of 36 polling units in Ashigle ward of Lafia local government area and the polling unit results were successfully entered in the ward summary form EC8B (Exhibit C32) admitted in evidence and that the 1 Respondent without justification excluded the votes of the parties in this ward and/or failed to reckon with the votes in the final computation of the votes of the parties.

PW1 is Eha Luka Aaro, while PW2 is Samalla Dakwa, PW11 is Michael Danladi Agube, PW17 is Talmako Sunday Anyuabaga and PW19 testified In respect of Ashigle ward.

This Tribunal is of the considered view that the 1st Respondent has not placed any evidence before this Tribunal to justify their exclusion of the votes from Ashigie ward and/or cancellation of same. Consequently, the scores of the parties in Ashigie ward will be and hereby restored by this Tribunal because the purported Forms EC40G(1) & EC40G (Exhibit RW3 & RW4) tendered by the 1st Respondent as proof of cancellation of the results in Ashigie ward is discountenanced by this court being untenable and an afterthought. As a matter of fact RW1-RW22 are not witnesses of truth. Their evidences are full of lies and contradictions that no reasonable Tribunal will believe in them.

Furthermore, a condition precedent for the cancellation of results at the polling units in appropriate circumstances which must be evidenced by Forms EC40G (PU) filled at the polling units with a report attached as required under paragraphs 40, 41, 42 and 43 of the INEC Regulations and Guidelines for the conduct of Elections, 2022 were not tendered before this honourable Court by the 1 Respondent as Exhibit and consequently no evidence of proper cancellation and/or justification for exclusion of Ashelge ward result has been presented by the Respondents.

In addition, the law is that it is only the presiding officer of a polling unit that has the power to cancel the results of a polling unit as decided in DOMA V. INEC (2012) All NWLR (PL.623) P. 813- at 833.

On the face of that the Form EC40G(2) signed by the state returning officer which is Exhibit RW123 tendered on 26th August, 2023 same does not show that any polling unit in Ashigle ward and indeed the entire Lafia Local Government was cancelled. This Tribunal is of the considered view that there was no cancellation and/or justifiable exclusion of any result in Ashigle ward Furthermore, it was admitted by RW21 (Yunana Fejemi) with the Acronym DN29 who testified on 26 August, 2023 while being cross examined by learned senior counsel J. J. Usman SAN.

Furthermore, in Exhibit RW4 (Form EC40G) filed by the ward collation officer did not list the polling units allegedly cancelled but gave a general reason of over-voting for the cancellation of the ward result contrary to their pleadings which was that there was violence.

On the face of the Form EC8B (Exhibit C32) admitted in evidence which is further conclusive proof that elections were successfully held in Ashigle ward and the document speaks for itself. We hold accordingly.

As raised by the Petitioners, that the votes for both the Petitioners and the 2 Respondent in this ward as reflected in the Form ECBB should be added to the scores of the parties in the Form EC8C and countenanced in the overall scores credited to the parties in the Form EC8D. As evident from the Form EC8B (Exhibit C32), it is obvious that the Petitioners scored a total of 4,488 votes while the 2nd and 3rd Respondents scored 2,673 votes in the ward. This Tribunal is of the view that by Exhibit C32, the Petitioners have discharged the burden of proof of them by showing that elections were successfully held in 35 polling units in Ashigie ward and that the 1st Respondent however failed to collate the results in Exhibit C32 into Form ECBC (local government summary.

This Tribunal will and is hereby restored the scores of the parties in Ashigle ward as reflected in Exhibit C32 and accordingly exercise our powers by adding 4,488 votes to the Petitioners and 2,673 votes to the 2 and 3 Respondents.

The case of the Petitioners is that In Kanje/Abuni, the scores of the parties were incorrectly entered and that the votes of the 1 Petitioner in the ECBA is tendered as Exhibits A1 to A15 was reduced while the votes of the 2nd Respondent was increased in the Form ECBB tendered as Exhibit A16. One Gbadamosi Musa Kalamu PW4 testified in respect of Kanje/Abunt ward. It is his evidence that elections were duly conducted in the 15 polling units which make up this ward and the results duly entered in Forms ECBA which were tendered and admitted in evidence as Exhibits A1 – A15. His evidence is that the results collated in Form EC8B should be taken from results entered in Forms EC8A are completely different from those contained in Forms EC8A from the various polling units which reflects the actual result to the adverse interest of the Petitioners and for the benefit of the 2nd and 3rd Respondents.

PW4 in his evidence identified Forms EC8A for Kanje/Abuni ward tendered and admitted as Exhibits A1-A15, and Form EC8B tendered and admitted as Exhibit KA. A simple computation of the Exhibits A1-A15 by this Tribunal reveals that the correct score of the Petitioners is 711 contrary to 131 entered in Exhibit KA while that of the 2nd and 3rd Respondents is 2,384 contrary to 2,964 in Exhibit KA. It is obvious that the votes of the Petitioners were reduced by 580 votes and that of the Respondents Increased by 580 votes.

From the foregoing, this Tribunal consequently deducted 580 votes from 2nd and 3rd Respondents and 580 votes to the Petitioners based on the decided authorities.

On the face of the court record, the EC8AS for the polling units in Azara ward were tendered as Exhibits A1 to A31 and the Form EC8B tendered as Exhibit A32. PW3, one Ibrahim Umar Usman testified in respect of Azara ward. Contention of the Respondents is that Exhibits A1- A31 were not spoken to by the Petitioners’ witnesses.

On the face of Exhibits A1-A32, they show that the correct score of the Petitioners is 2,313 while that of the 2nd and 3rd Respondents is 5,768. This is contrary to total scores of Petitioners and 2nd and 3rd Respondents as recorded in Exhibit A32 as 1,313 and 6,976 respectively it shows that the actual total votes of the Petitioners were reduced by 1000 and that of the 2 and 3 Respondents increased by 1210.

This Tribunal in line with the power given to us discountenance the entries contained in Form EC7B 1.e. Exhibit A32 and consequently deducted votes credited to the 2 and 3 Respondents while 1,000 votes is added to the Petitioners votes scores.

The Petitioners’ case here is that the votes of the parties in this polling unit as entered in the Form EC8A (Exhibit DOM) was unjustifiably excluded and not collated into the Form ECBB for the ward. The BVAS accreditation report/screenshot print-out is in evidence as Exhibit P0193. PW9 and PW10 testified in respect of Alwazan Mada polling unit. Contrary to the 1st Respondent’s contention, the evidence of PW10 is not hearsay as he was the ward collation agent of Sabon Gari ward thus competent to testify. At any rate, the relevant Exhibits DOM speaks for itself. PW9 and PW10 testified in respect of this polling unit.

The Form ECSA for this PU is Exhibit DOM with the following votes scores, ADP 1, APC 7, APM 1, NNPP 2, PDP 311, PRP 1 and ZIP 2 which is a total valid vote of 325 (although wrongly summed as 326 in Form EC8A marked as Exhibit DOM) and when added to the 1 rejected vote gives a total votes cast of 326 which is consistent with and not more than the number of accredited voters of 326 indicated on Exhibit DOM. We hold that contrary to the Respondents’ contention, no over voting in that polling unit, we are of the considered view that no justification for the exclusion of the results therein in the Form EC8B of Sabon Garl ward contrary to the Respondent and we consequently add 7 votes to the 2nd and 3rd Respondents while 311 votes is added to the Petitioners on over voting in four (4) identified polling units.

(1) Bohar/Sarki polling unit (Ningo/Bohar Electoral ward)

(2) Kofar Mogagi Garl Angwa Makama

(3) Gadabuke

(4) Ihamkpe code 010 of Shege ward of Toto local government area.

On the face of the court record, the Form EC8A for this polling unit was tendered in evidence as Exhibit AKW and the BVAS machine is Exhibit BV200. On the face of Exhibits AKW and BV200, parties scored the following votes – APC 743, PDP 2, PRP 1 and SDP 1, making a total of 747 votes cast which is higher than the figure of accreditation in the certified true copy of BVAS accreditation report/screenshot printout tendered in evidence as Exhibit PO 200 which shows the accreditation figures as 163.

On the face of the court record, the 1st Respondent was subpoenaed to produce the voters register for this polling unit but withheld and failed to produce this. The subpoena was issued on 11 July, 2023 in addition to the exparte order of this honourable Tribunal granted on 27 March, 2023 for Petitioners to access and obtain certified true coples of all electoral materials including voters register.

This Tribunal will and hereby invokes the provision of section 167 of the Evidence Act, 2011 and consequently this Tribunal holds that there was over voting occurred in this polling unit, the votes ought to be cancelled and same is cancelled and 743 votes is cancelled, deducted from the 2nd and 3d Respondents and 2 votes to be deducted from the Petitioners votes.

In Kofar Magaji Gari Angwan Makama Area (Code 018) the Form EC&A for this polling unit is Exhibit NE1, it reveals that the total votes cast is 522 (which is total valid votes of 517 added to 5 rejected ballots) which is higher than the number of accredited voters of 302 as shown in the BVAS accreditation report/screenshot print-out for this polling unit in evidence as Exhibit PO 199. The IREV copy of the EC8A for this polling unit is also in evidence as Exhibit NEZ, the BVAS machine as Exhibit BV199 while the BVAS accreditation report/screenshot print-out is Exhibit PO 199.

This Tribunal is of the considered view that there is over voting in this polling unit, the votes ought to be cancelled and 481 votes is deducted from the 2″ and 3″ Respondents and 24 votes to be deducted from the Petitioners votes.

In Gadabuke polling unit of Gadagwa Electoral ward, Petitioners PW15 testified in respect of this polling unit, Exhibit TOT1 is the Form ECSA for this polling unit, the Petitioners tendered the Form ECBA as Exhibit TOT1, voters register as Exhibit TOT3, BVAS machine as Exhibit BV196 and BVAS accreditation report/screenshot print-outs as Exhibit PO196. The IREV copy is Exhibit SUB 5. Petitioners’ PW18 testified in support of the Petitioners’ case in Gadabuke (A).

On the face of Exhibit PO196, it confirms that only 270 voters were actually accredited to vote. Exhibit TOT1 shows that 215 votes were allocated to the 2nd and 3rd Respondents, while 42 votes were allocated to the Petitioners, 19 voters were allocated to other political parties and 1 vote rejected totaling 277 which is higher than the accreditation data on Exhibit PO196. The election in this polling unit ought and is hereby cancelled and 215 votes deducted from the 2nd and 3rd Respondents votes and 42 votes deducted from the Petitioners votes.

In Ihamkpe B code 010 of Shege 1 ward of Toto local government ares, the ECBA for this polling unit is in evidence as Exhibit TOTI, the BVAS machine for this polling unit is Exhibit BV198 while the voters register was tendered as TOT3. PW18 testified in respect of the Petitioners’ case in Thamkpe B polling unit.

BVAS Accreditation Report/Screenshot print out is in evidence as Exhibit PO 198. It clearly shows that there was over voting as the 476 total votes cast is higher than the number of accredited voters, which is 176 as shown in the BVAS accreditation report/screenshot print-out tendered in evidence as Exhibit PO198. On the face of the Exhibits PO 198, BV 198, TOT2 and TOT3 they manifestly disclosed over voting in this polling units and we did not require oral testimony to prove same in line with section 137 of the Electoral Act, 2022 and Oyetola’s case. This polling unit result ought and is hereby cancelled and 429 votes and consequently deducted from the 2 and 3 Respondents votes and 20 votes deducted from the Petitioners votes.

Put differently, on the face of the court record, actual votes for the Petitioners and 2 and 3″ Respondents from the evidence before this honourable court are as follows:

ACTUAL VOTES OF THE PARTIES

Total Votes Announced By INEC 283,016 (1st Petitioner) 347,209 (2nd 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
Ihampke (B) PU (Shege Ward, Toto LGA) -20 -429
ACTUAL TOTAL SCORES 293,287 292,446

This Tribunal agreed with the submission of the Petitioners that the Law is settled beyond peradventure, that the Tribunal possesses the requisites power to collate the results which reflects the true intentions of the electorates from the polling unit. See UZODINMA & ANOR. V. IHEADIOHA & ORS. (202) LPELR-50260 SC.

Furthermore, this Tribunal holds that the actual score of the 1st Petitioner is 293,287 while that of the 2nd Respondent is 292,446 with a margin of lead of 841 thus, the Petitioners scored the highest number of valid votes and ought to be declared as the winner of the 2023 Nasarawa Governorship Election and he is consequently declared the winner of the said Election.

The 2nd and 3rd Respondents contended with the position of the Petitioners by tendering Forms EC8A (Exhibits RW12-RW42). On the face of the court record, the Petitioners tendered certified true copies of the IREV Forms EC8A as well as duplicate copies of the polling units where the 2nd and 3rd Respondents claimed that their votes were not properly collated. A careful perusal of the IREV copies tendered before the Petitioners by the honourable Tribunal, it is clear that all the IREV copies tendered by the Petitioners conform with the figures imputed in Forms EC8B (Exhibit RW43 RW65) tendered by the 2d and 3 Respondents thus there were no incidences of non-collation and /or improper collation as alleged by the 2 and 3 Respondents. By the provisions of Section 64(4) of the Electoral Act, 2022 this Tribunal can place the reliance on the IREV coples tendered by the Petitioners over the EC8AS tendered by the 2 and 3 Respondents in respect of these claims.

On the face of the court record, this Tribunal is of the considered view that the Petitioners have demonstrated by the IREV and duplicate copies of the Form EC8A of the polling units to show that the actual scores of the parties were Indeed correctly entered in their respective Forms EC8BS contrary to the allegation of improper calculation/non-collation of results.

This Tribunal agrees with the Petitioners,

  1. That in reaction to Exhibit RW13 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW125 tallies with entries in RW62 (Form EC8B).
  2. That in reaction to Exhibit RW14 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW127 tallies with entries In RW61 (Form EC8B)
  • That in reaction to Exhibit RW20 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW107(Form ECSA IREV copy) tallies with entries in RW56 (Form EC8B).
  1. That in reaction to Exhibit RW22 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW109 (Form ECSA IREV copy) tallies with entries in RW43 (Form EC8B)
  2. That in reaction to Exhibit RW25 relled on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW110 (Form EC8A IREV copy) tallies with entries in RW45 (Form EC8B)
  3. That in reaction to Exhibit RW27 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW111-(Form EC8A-IREV copy) tallies with entries in RW46 (Form EC8B).
  • That in reaction to Exhibit RW28 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW112 (Form EC8A IREV copy) tallies with entries in RW46 (Form EC8B)
  • That in reaction to Exhibit RW29 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW113 (Form EC8A IREV copy) tallies with entries in RW47 (Form EC8B)
  1. That in reaction to Exhibit RW30 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW114 (Form ECBA IREV copy) tallies with entries in RW47 (Form EC8B)
  2. That in reaction to Exhibit RW32 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW115 (Form EC8A IREV copy) tallies with entries in RW48 (Form EC8B)
  3. That in reaction to Exhibit RW33 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW116 (Form ECBA IREV copy) tallies with entries in RW49 (Form EC8B)
  • That in reaction to Exhibit RW35 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW117 (Form EC8A IREV copy) tallies with entries in RW51 (Form EC8B)
  • That in reaction to Exhibit RW37 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW118 (Form EC8A IREV copy) tallies with entries in RW53 (Form EC8B)
  • That in reaction to Exhibit RW38 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW119 (Form EC8A IREV copy) tallies with entries in RW53 (Form EC8B)
  1. That in reaction to Exhibit RW39 relied on by the 2nd & 3rd Respondents, the Petitioners Exhibit RW120 (Form ECSA IREV copy) tallies with entries in RW54 (Form EC8B)

This Tribunal is in agreement with the Petitioners that INEC guidelines validate resort to IREV certified true copies where Forms ECSA are disputed, and section 60(3) of the Electoral Act, 2022 with respect to the relevance of the duplicate original EC8AS (pink copies). See also UZODINMA & ANOR. V. IHEDIOHA & ORS. 2020 LPELR 50260 (SC).

This Tribunal consequently hold that from the totality of evidence presented by the 2nd & 3rd Respondents, they failed to establish that votes in the identified EC8AS were not properly collated and correctly entered in Forms ECSB (Exhibit RW43 RW65) in view of the IREV copies and duplicate original of the EC8AS of those polling units tendered by the Petitioners, we hold accordingly.

On the 4th issue which is whether the Governorship Election held in Nasarawa State on the 18-3-23 was not conducted in substantial compliance with the provisions of the Electoral Act 2022, the guidelines and manual for Election officials. In the light of the reasons adduced in the course of this judgment, this Tribunal hold that the Election of 18-3-23 was not conducted in line with substantial compliance with the provisions of the Electoral Act 2022, the guidelines and manual for Election officials. This Tribunal holds that the Petitioners have proved their case against the Respondents in this case.

From the foregoing therefore, Judgment is entered as follows:

(1) That it is hereby determined and declared that the 2nd Respondent was not validly elected by a majority of lawful votes cast at the Governorship Election held on 18th day of March, 2023 in Nasarawa State.

(h) That it is hereby determined and declared that upon a proper computation of all the polling units results where elections held in Nasarawa State on the 18th day of March, 2023, that the 1st Petitioner was duly elected and ought to have been returned.

(1) That it is determined and declared that the 1st Petitioner, Emmanuel David Ombugadu scored the highest number of lawful and valid votes cast in the election and ought to have been returned and should be returned election as the Governor of Nasarawa State.

(1) An Order of this Honourable Tribunal is granted setting aside and withdrawing the certificate of return issued to the 2nd Respondent as the Governor of Nasarawa State is granted.

(k) An Order of this Honourable Tribunal directing the 1st Respondent to issue certificate of return to the 1st Petitioner and to be immediately sworn in as the Governor of Nasarawa State is granted.

No order as to cost.

Hon. Justice Chiemelie A.B. Onaga concurred with the judgment delivered by the Chairman of the Tribunal while Justice Ibrahim I. Mashi gave a dissenting judgment.

Petition Immaterial And Dismissed

  • Dissenting Judge

In a dissenting judgment, Justice Ibrahim I. Mashi described the Petition by David Emmanuel Ombugadu as immaterial and the same is dismissed.

In the judgment, the Honourable Judge formulated two issues for determination as follows:

  1. Whether from the evidence adduced, the Petitioners have established that the 2nd Respondent was not duly elected by the majority of valid votes cast at the election of Governorship of Nasarawa State held on 18th March, 2023?
  2. Whether the 1st and 3rd Respondents have no replies before the Tribunal owing to the bet that they put the name of one Sule Audu Adamu in their replies to the Petition?

The following was his judgment:

ISSUE NO. 1

Whether from the evidence adduced, the Petitioners have established that the 2nd Respondent was not duly elected by the majority of valid votes cast at the election of Governorship of Nasarawa State held on 18th March, 2023?

The 1st Respondents counsel submitted that the sole ground of the Petition contained in paragraph 25 of page 9 of the Petition is that “That 2nd Respondent was not duly elected by majority of lawful votes cast at the said election” and the Petitioners in paragraph 104 at pages 53 to 54 of their Petition sought inter alia declaratory reliefs even though the reliefs were couched without featuring the word declaration. He therefore, submitted that it is trite law that reliefs in election Petition are declaratory in nature whether the word declaration is used or not. That in the case of Senator Ifeanyi Godwin Ararume & Anor vs Independent National Electoral Commission & Ors (2019) LPELR-49572 Per Omoleye JCA held at Page 84-85 Paras A-E that:

“It is not worthy that the nature of reliefs usually and normally sought in an election Petition are in the main declaratory in nature.”

See the case of Abubakar & Ors vs INEC & Ors (2019) LPELR. It would therefore be immaterial, the branding or coloration given to reliefs under consideration by counsel.”

It therefore, follows that Petitioners who are seeking declaratory reliefs from the Tribunal must succeed on the strength of their case and not on the weakness of the Respondents’ case. He referred to ADAMU vs NIGERIAN AIR FORCE & ANOR (2022) LPELR-56587 (SC).

That the complaint of the Petitioners cut across Ashige ward, Chiroma ward, Gayam ward, Kanje/Abuni ward, Azara ward, Alwazan Mada ward polling unit of Sabon Gari ward, Bohar Sarki polling unit of Ningo/Bohar Sarki ward, Gadabuke polling unit of Gadagwa ward and Ihenkpe polling unit of Shege ward.

That in attempt to prove their case Petitioners called 22 witnesses out of which some were subpoenaed witnesses (PW5, PW6, PW7, PWS, PW12, PW13, PW20, PW21). The counsel submitted to argue the issue under subheadings:-

  1. On the allegation of cancellation in Ashige ward, the Petitioners called PW1 and PW2 who claimed to be polling unit agents of Ugah Primary School and Alawaga Primary School respectively of Ashige electoral ward. While PW11 claimed to be ward collation agent of Petitioners at Ashige. The witnesses claimed in their statement on oath that the election was held in the 35 out 36 polling units. While PW11 confirmed under cross- examination that he knew form EC40G and that 1st Respondent filled form EC40G for Ashige ward. He therefore submitted that the testimonies of PW1, PW2 and PW11 were hearsay and the law is trite that hearsay evidence is inadmissible. He referred to the case of LADOJA S AJIMOBI (2016) LPELR-40658 Per OGUNBIYI JSC at Page 75 Para B-D.

He therefore urged the Honourable Tribunal not accord any probative value to the evidence of PW1 PW2 and PW11.

It was submitted on behalf of the 2nd Respondent that Petitioners called PWI, PW2, PW11 and PW19 who testified as Petitioners’ agents. That it was claim of the Petitioner that the election went on smoothly in 35 out of 36 polling units of Ashige ward. He submitted that the law is trite that he who asserts positive that the election took place must prove that in all 35 polling units that there were proper accreditation, voting, collation and declaration of results. He referred to case of AGAGU vs MIMIKO (2009) LPELR-21149 (CA).

That in the instant Petition, it is the case of Respondents that the election in Ashige ward of Lafia Local Government were cancelled and form EC40GS were filed to evidence the reason of various cancellations. To this effect 1st Respondent tendered RW3 and RW4. That the burden now shifted to the Petitioners to prove that election in Ashige ward took place peacefully and was conducted in accordance with the law. He referred to AMGBERE vs SYLVA (2009) 1 NWLR (Pt. 1121) 1 at 60 71-73.

He also submitted that there is a presumption of regularity of the results declared or cancelled by the 1st Respondent. On presumption of genuineness of election results declared by INEC he referred to the case of AKPOTI vs INEC & ORS (2022) 9 NWLR (PL. 836) 403 (SC) at P. 424-425 Paras F- G. He therefore submitted that the evidence led by Petitioners is grossly insufficient to warrant the Tribunal to grant relief claimed by Petitioners. On the part of 3rd Respondents, it was submitted that Petitioners alleged allegations that the election in Ashige ward which was validly cancelled ought to be restored. But the Petitioners did not call all the polling unit agents of Ashige ward to prove their assertion that election was validly held. More devastating, the 3rd Respondent’s counsel submitted, that PW11 admitted that there were inconsistencies as between his statement on oath and form EC8A of his polling unit. The Petitioners’ failure to call sufficient polling unit agents other than PW1, PW2 and PW19 (who claimed to be voters) shows clearly that they abandoned their contention and allegations as it relates to Ashige ward. It was also submitted by the Petitioners’ counsel that Ashige ward election were successfully held in 35 out of 36 polling units of Ashige ward, Lafia Local Government. The polling unit results were successfully entered into the ward summary form EC8B (Exh C32) admitted into evidence. However, the 1st Respondent without any justification excluded the votes of parties in the ward and/or failed to reckon with the votes in the final computation of the votes of the parties.

PWI (Eha Luka Aaron), PW2 (Samaila Dakwe), PW11 (Macheal Danladi Agube), PW17 (Taimako Sunday Anyuabaga) testified in respect of Ashige ward contrary to the insinuation of the Respondents. PW11 does not need to be in polling unit in Ashige ward in order to testify.

He also submitted that the 1st Respondent has not placed any evidence before the Tribunal to justify their exclusion of the votes from Ashige ward and/or cancellation of the same. Thus, the scores of the parties ought to be restored by the Tribunal and they urged the Tribunal to do so. That the purported form EC40G (1) and EC40G (Exh RW3 and RW4) tendered by 1st Respondent as proof of cancellation of the result in Ashige ward ought to be discountenance by this Court as untenable and afterthought. That the circumstances provided by paragraph 40, 41, 42 and 43 of INEC regulations and guidelines for conduct of elections 2022 but none has been tendered before the court. He submitted that it is the presiding officer of a polling unit that has the vires to cancel the result of polling unit. He referred to the case of DOMA S INEC (2012) NWLR (PL 623) P 813; IKPEAZU S OTTI & ORS (2016) LPELR-40055 (SC): JUDA & ORS SALAU&ORS (2019) LPELR-50029 (CA) PP 15-17.

He also contended that form EC40G (2) signed by state returning officer (Exh R123) does not show any polling unit in Ashige. This is a conclusive proof that there was no cancellation of Ashige result in Ashige ward.

Secondly, Exh RW4 filled by ward collation officer did not list polling units alleging cancelled but gave general reason of over voting. This inconsistency is ought to vitiate the pleadings and evidence of 1″ Respondent. He referred to the case of AJUWON & ORS vs GOVERNOR OF OYO STATE & ORS (2021) LPELR-55339 (SC).

He also submitted that the 2nd Respondent gave contradictory unsubstantiated and improbable evidence. In one breath he stated over voting and in other breath malpractices. As no evidence was adduced by RWI to proof any malpractice. Exh C32 is conclusive proof that election were successfully held in Ashige ward and the document speaks for itself. The Respondents have not discharged the burden of proof placed on them by section 133 (2) of the evidence Act, to show that the results of Ashige will justifiably cancelled. He finally urged the Court to restore 4, 488 votes for Petitioners and 2, 673 votes for the 2nd and 3rd Respondents.

It is trite law that polling unit agents are the most competent to testify about what transpired in his own polling unit. As the Petitioners have duties to call polling units agent to proof that election took place at all the polling units of Ashige ward of Lafiya Local Government. In an attempt to do so. The Petitioners called PW1, PW2, PWII and PW17 1towever, these witnesses are either Polling unit agents. Ward collation agents or Local Government collation agents But the position of the law is that polling agent can only testify to what transpired in his own polling unit See OKE vs MIMIKO (No.2) (2014) 1 NWER (PL. 1388) 332 and 1KECHUKWU SINEC (2014) 17 NWER (Pt. 1436) 255 at 299, even though person who is a ward supervisor during election is a competent witness under the electoral Act, so GUNDIRI NYAKO (2014) NWLR (PL 13911 211 at 246. On the testimonies with respect to what happened at all polling units is hearsay. He referred to Ladoja vs Ajimobi (Supra).

That PW3 did not speak to Exh 1-32 which were polling units results which PW3 was not present at the time of various entries were made. PW3 was not the maker of Exh32. Therefore, Exh 1-32 were dumped at the Tribunal. Documents dumped on counts does not have evidential value. He referred to APGA vs ALMAKURA & ORS (2016) LPELR-48123 (SC) PP 21-22-Paras C-F.

The 2nd Respondent’s counsel submitted that PW3 stated under cross-examination that he got information of the 31 polling units from his agents, which is hearsay. PW4 admitted discrepancies between ExhAI and his statement on oath. Which made his dence inadmissible. He submitted that a party who adduced inconsistency evidence damaged the case of Petitioners beyond repairs. He referred to the case of Al-Rissalah Printing and Publishing Company Ltd & Ors vs Kassem El-Husseini & Ors (2007) LPELR-8543 (CA).

He submitted that the evidence led by Petitioners is grossly insufficient to warrant the Tribunal to grants reliefs claimed. He referred to ADREW vs INEC (2018) 9 NWLR (Pt. 1625) 507. At

It was submitted by the 3rd Respondent’s counsel that PW3 and PW4 give evidence to their various polling units where they were not agents, and this it was submitted that it was hearsay evidence which is inadmissible. PW3 stated under cross- examination that “my complaint is that the scores in the polling units are from what I got from polling agents” while PW4 gave inconsistencies evidence and the table of figures, he made was inconsistent with the exhibits he identified.

These, he submitted the testimonies of these witnesses cannot stand as the Petitions have failed woefully to present valid evidence to disturb the election and return of 2nd Respondent.

The Petitioners submitted that the complaint in Kanje/Abuni ward was the incorrect entry from form EC8AS to form EC8B of the ward collation center. That the results from Exhs A1 to A15 were incorrectly entered in Exh A16. That the incorrect entries were not the adverse interest of the Petitioners and for the benefit of 2nd and 3rd Respondents. That PW4, who was the ward collation agent gave evidence, identified Exh A1 to A16. He submitted that 580 votes were reduced for the Petitioners and that 580 votes were increased for 2 and 3rd Respondents.

It is settled law that in election Petition that polling unit agents are competent witnesses but they can only testify to their polling unit. However, in respect of PW3 he testified for all the 31 polling units of Azara ward. Thus making his testimonies as hearsay and therefore inadmissible. While PW4 who is a ward collation agent of Kanje/Abunt ward though he can be a competent witness in law but the probative value to attach to his evidence is what matter. See the case of OKE vs MIMIKO (SUPRA); GUNDIRI vs NYAKO (SUPRA); LADOJA vs AJIMOBI (SUPRA). It is in evidence that PW4 admitted that Exh Al and his table on his statement are different. As in Exh Al the scores of APC was 169. While in his table he stated that APC scored 167. In fact, he admitted inconsistencies between his statements and the exhibits and admitted all the exhibits with the exception of Al are not correct. In view of the foregoing, the Petitioner have failed to establish their claim in respect of Azara and Kanje Abuni as required by law

  1. On the allegation of over voting in Gadabuke P.U of Gadagwa ward and Thankpe b P.U of Shege ward and others The 1″ Respondent submitted that the Petitioners alleged that there were over voting in Gadabuke. Thenkpe. Kofar Magajin Gari. Aaguwar Makama (PUs, Hohar Sarka In their bid to prove the said allegations of over voting, the Petitioncis called PW14. PW15 and PW18, PW 15 claimed that 276 voted in excess of 270 accredited PWIS claimed dust 476 voted in exce of 176. PW14 stated that the pressing officer recorded more than the accredited voter, as bullos papers were not counted.

However, clear perusal of TOTI for Gadabuke polling unit of Gadagwa ward revealed that 277 were accredited. 276 valid votes while one invalid vote were recorded which is not in excess of the number accredited.

He also submitted that the Supreme Court has laid down the requirement for proving over voting under electoral Act, 2022 in the case of OYETOLA & ANOR vs INEC & 2 ORS (2023) LPELR-60392 Per-AGIM JSC.

He submitted that Petitioners did not tender voters register from the polling units complained of to enable PW15 and PW18 speak to the said documents BVAS machines to the said polling units were also not tendered in flagrant violation of decision of Supreme Court in OYETOLA & ANOR vs INEC & 2 ORS (SUPRA).

He therefore, submitted that the Petitioners failed to establish the allegation of over voting in Gadabuke and Thankpe of both Gadagwa in Shege ward of Toto Local Government. He therefore urged the Tribunal to so hold.

It was also submitted for the 2 Respondent that PW15 testified as polling unit agent of the Petitioners and testified that there was over voting at polling unit 006 of Gadabuke. However, he agreed under cross-examination that the total number of accreditation 277 on form ECSA. While the valid votes is 276 and invalid was one (1) making a total of 277 votes.

PW18 testified for Thankpe polling unit 010 of Shege ward of Toto LG that there was over voting. He admitted under cross-examination that the voters register was ticked for Governorship Esh TOT3. When confronted with Exh TOT2 and Sub237. he conceded the number of valid votes and the rejected votes did not exceed accredited voters. He tendered his wife agent Tag of PDP and further stated that in Exh ID25, the name of his wife Habiba Mohammed was written not Ibrahim Sa’adu Musa

PW14 testified for Ningo Holar electoral ward of Akwanga Local Government without stating his unit in his statement. He stated that there was over voting in his polling unit. But under cross-examination he agreed that accreditation is done by BVAS machine and voters register. But he did not care with BVAS machine and he did not know how to operate it.

Based on the above the 2nd Respondent submitted that the Petitioners failed to establish over voting in the polling units.

It was argued for 3d Respondent that PW15 testimony was for Gadabuke polling unit of Toto Local Government. He alleged over voting. However, he confirmed under cross-examination that his name was not on the agent Tag and voter registers. He did not produced BVAS machine of the polling unit.

PW18 Ibrahim Sa’adu Musa’s testimony was for Ihanpke polling unit of Shege ward. He all over voting. But Exh ID25 was bearing Habiba Sa’adu Musa, his wife instead of his name. That the witness was not a witness of truth as it was his wife that was agent based on Exh ID25.

From the above, the 3rd Respondent submitted that the witnesses had nothing to do with election and also lied on oath and thereby contradicting themselves in material form and the Tribunal is urged not to rely on the evidence of these witnesses. He referred to the case of SANI GWANDU vs FEDERAL REPUBLIC OF NIGERIA (2014) LPELR-23992 (CA).

It was contended for the Petitioner that there was over voting in Bohar Sarki P.U of Ningo/Bohar electoral ward. That the scores of the parties were 747. While the accreditation on BVAS screen shot Exh PO200, was 163. That the 1st Respondent subpoenaed to bring voters register failed to produce same in addition to exparte order of inspection of documents. He their urged the Tribunal to invoke presumption of withholding evidence pursuant to section 167 of the evidence Act, 2011.

Having proved over voting occurred in this polling unit, the votes ought to be cancelled and 743 votes to be deducted from 2 and 3 Respondents while 2 to be deducted from the Petitioners.

At Kofar Magajin Gari, Anguwar Makama, codo 018. In Exh NE1, revealed that the total votes cast was 522, which was higher than the accredited voters of 302 in BVAS Exh PO199 and Exh NE2. He urged that the votes ought to be cancelled due to over voting and 481 votes deducted from 2 and 3rd Respondents and 24 to be deducted from Petitioners.

In Gadabuke polling unit PW15 testified and identified Exh TOTI and TOT3 as polling unit results and votes register in line with the case of OYETOLA vs INEC (SUPRA). It also tendered BVAS machine. That in Exh SPO196, 270 voters were accredited. Exh TOTI show that 215 votes were allocated to 2 and 3 Respondents, 42 allocated to Petitioners and 19 allocated to other parties making 277 which a higher than the accreditation on Exh SPO196. Election in this polling unit ought to be cancelled and 215 votes deducted from 2nd and 3rd Respondents while 42 to be deducted from Petitioners.

In Ihankpe B code 010 of Shege ward of Toto LG Exh TOT2 and Exh BV198 and Exh TOT3 voter register. He stated that there was over voting as testified by PW18 as 476 votes were cast which is over the accredited voters of 176 shown in the BVAS. That PW18 is a witness of truth and the discrepancies in his ID25 is not sufficient to discredit the witness that the polling unit result ought to be cancelled and 429 votes to be deducted from 2 and 3 Respondents. While 20 votes to be deducted from the Petitioners.

It is trite that over voting is when the total votes cast outnumbered the accredited voters and by section 51 (2) of the electoral Act, 2022, when such occurred, the result would be cancelled The Supreme Court hers set out the requirements of establishing over voting in an election Petition in the case of OYETOLA & ANORS INEC & ORS (2023) 1.PELR-60392. Where Per AGIM JSC held thus

“The evidence required to prove non-accreditation, improper accreditation and over voting under the electoral Act, 2022, are BVAS, register of voters and polling unit result in INEC form ECSAs by virtue of section 47 (1) (2) and 51 (2) of the electoral Act, 2022. Regulations, 14, 15, 19(b) (I-lii) and 48(a) of INEC regulations and guidelines for the conduct of the election, 2022.” It was the contention of the Respondent that the Petitioner have not met the requirements established by the Supreme Court (Supara) as there was no voters registers in some of the polling units. While the Petitioners stated that they tendered voters register in some polling units while prayed the Tribunal to evoked section 167 of evidence Act, for withholding of evidence as the 1st Respondent was subpoenaed to produce them.

However, it seems to this Tribunal that even in some areas of accreditation, the BVAS machines were bedeviled with human errors. These made Petitioners to approbate and reprobate. In Sub23 of Sabon Gari Doma, accreditation failed yet got 326 as accredited voter in the BVAS screen shot. While in Exh BV200 accreditation was successful but difference with Exh Sub21 in terms of number of accredited voters so also in Alawaga polling unit of Azara ward, accreditation failed, yet the Petitioners wanted the votes to be restored to them. So also in Kofar Magajin Gari, Anguwan Makama accreditation failed, and yet the Petitioners claimed over voting and want the parties scores to be deducted from that polling units.

In view of the foregoing, this Tribunal will examine the forms ECSAs of these polling units complain of to see whether there is over voting or not even though the Petitioners ought not to be said to tender voter register as required by the decision of Oyetola’s case.

As such in Kofar Magajin Gari Anguwan Makama, the total number of accredited voters is 522. The total valid votes is 517 and the total invalid votes is 6.

Thus 517+6-522. As such, there is no over voting establish here. While in the Bohar Sarki code 005 in Exh Sub21. the total accredited voters is 747. The total valid votes for the parties is 747. Thus, there is also to over voting. While in Gadabuke A of Gadagwa ward of Toto Local Government in exh Sub22 code 006 the total accredited voters was 277. The total valid votes is 276 and the invalid vote is one. Thus 276+1=277, thus there is no over voting. So also in the case of Thankpe unit 010 in Shegel ward of Toto Local Government, the number of voters in Exh TOT2 and Sub237, did not exceed the total number of accredited voters. Even though the witness tendered the ID25 of his wife and he could not trace his name on the voters register. It was his wife’s name and not his name on the voters register.

In view of the foregoing, I hereby hold that the Petitioners were unable to establish over voting in these polling units and their claim therefore failed on these polling units.

While in the case of Alwazan Mada code 009 of Sabon Gari ward of Doma L.G. the scores of the Parties being the total valid votes is 326. While the invalid vote is one (1). The total accredited voters on Exh DOM, Sub3 and Sub234 was 326. While the total valid votes cast was 326 and the total invalid vote was one (1) making the total of 327 number of total votes cast. Thus, the total votes cast is in excess of accredited voters with one vote, thereby establishing an over voting in the polling unit. The Petitioners therefore, are unable to establish wrongful exclusion of votes by or none collation of the same.

  1. On the allegation of inflation of result in Gayam and Chiroma wards of Lafiya Local Government. It was submitted for the 1st Respondent that the Petitioners claimed that the result of the election was inflated in favour of 2 and 3 Respondents to 29, 857 votes for APC instead of 9,753 votes. While that of PDP was reduced to 1, 453 votes instead of 2, 979. The Petitioners called PW12, which the Respondents objected to the competency of the witness to give evidence without written statement/witness deposition.

The 1st Respondent submitted that assuming without conceding that the PW12 is a competent witness, his testimony did not establish the claim of the Petitioners in Gayam ward. PW12 who claimed to be ward collation agent of PRP was not present when the entries were made in Exh BI-B60 which are forms EC8As of polling units of Gayam ward. PW12 also admitted that he did not sign Exh B60 which is form EC8B for Gayam ward and Exh 255-304 which are the voters register for Gayam ward, the said documents were therefore dumped on the Tribunal and the law is trite the counsel submitted that documents dump on the Tribunal did not have any evidential value. He referred to case of MAKU vs ALMAKURA (SUPRA); APGA vs AL-MAKURA & ORS (SUPRA).

Similarly, the Petitioners claimed in CHIROMA WARD of Lafiya Local- Govemment that the election result was inflated in favour of APC to 50, 944 instead of 14, 474.ile those of PDP were reduced to 851 instead of 3, 506. Petitioners subpoenaed PW13, who claimed to be Action Alliance agent for Chiroma ward. The Respondents objected to the competency of the witness to testify without witness deposition on oath. He also adopted his earlier arguments in that regard.

PW13 voted at his polling unit, Agyaragum at 4:00 pm claimed to move to Chiroma ward and did not visit any polling unit apart from where he voted. Yet he claimed that the entries of results from polling units agreed with the BVAS report and other portal. He was shown Exh 109-211, which were polling unit result which he was not present when the entries were made.

The Petitioners also called PW16 who claimed to be ward collation agent of Chiroma ward of Lafiya Local Government. Also stated that there were wrong entries in Gayam, in Gayam ward. He was shown Exh 109 to 208, CVRI-CVR64, Sub132-Sub229. He however, stated under cross-examination that his signature was not on Exh 209. He therefore, submitted that the PW12, PW13 and PW16 were not present when the entries of result across all the polling units and wards in Gayam and Chiroma wards were made the entirety of evidence of PW12, PW13, and PW16 inadmissible He referred the Tribunal to the case of ANDREW & ANORS INEC & ORS (2017) 1 PEER-48518 Per OKORO JSC at Page 53-58.

He also submitted that PW13 is not a witness of truth as he stated under cross- examination that, he does not know the score of his party and yet to testify that the election was not free and fair.

The legal impediment that affects the evidence of PW12 and PW13, affects even more, the evidence of PW17 the acclaimed Lafiya Local Government collation agent of the Petitioners. He stated in paragraph 8 of his deposition that what transpired in Gayam and Chiroma wards were what his ward agent reported to him. PW17 was not present when the entries were made in Exhs shown to him. He admitted under cross-examination that he did not sign Exh 211 which is form EC8C for Lafia Local Government.

It was argued on behalf of the 2nd Respondent that the claim to Petitioners in Gayam and Chiroma wards, the Petitioners subpoenaed PW12 of P.R.P and PW13 of Action Alliance (AA) who were ward collation agents. As well as PW16 who was ward collation agent of while PW17 acted as a Local Government Collation agent of Lafia Local Government.

The Petitioners failed to call a single witness from any of the polling unit who will give a vivid account of what transpired at their various polling units in respect of accreditation, voting, collation and declaration of unit result who will now compare same with the ward results. This is more so as the Petitioners are making insinuation that the results collated in various ward level were not the same as those emanated from polling units. He referred to the case of BUHARI vs INEC (2008) 19 NWLR (Pt. 1120) 264 at 424-426 Paras D-F

Also the Petitioners subpoenaed the head of I.C.T Nasarawa State INEC, who boxes supposedly containing BVAS machines which were admitted as Exh BVI to BV 207 as well as the printout of screen shots Esh SPO1 to Exh SPO209. He submitted that the BVAS machines were not demonstrated in open Court Also the printout of screen shots were put linkist with the case of the Petitionces e submitted that Esh BVI-BV 207 SPO1-SPO209 were merely dumpest arthe Tribunal without any utilitarian value. He also submitted that it is not the duty of the Court to proceed through documents tendered by parties which were not demonstrated in open Court He referred to ANDREW VS INEC & ORS (2017) LPELR-48518 (SC).

He was also submitted on behalf of 3rd Respondent that the Petitioners called PW12 for Gayam ward who testified orally without written deposition. He claimed to be ward collation agent of P.R.P and was not at any of the 58 polling units in Gayam ward. The entire testimonies of this witness which relates to the polling units was completely hearsay. The witness claimed to be agent of P.R.P but testified under- cross examination as follows:-

“I am not an agent of polling unit but I am sure that my party P.D.P we have 58 polling units and they brought their copies.”

He submitted that the witness is certainly not the person he claimed.

PW13, who testified for Chiroma ward as alleged ward collation agent of Action Alliance (AA). The witness told the Court that he contested election on 25/2/2023. On further cross-examination he confirmed that Exh ID4 which is proof of appointment as agent had nothing to do with agent position.

PW17 (Taimako Sunday Anyuanbeya), He emphatically stated in his testimony as it relates to scores in the polling units:

“On what transpired based on what was submitted to him by agent who received same from polling units agents of my party.”

The witness did not sign form EC8C of Lafia Local Government, which Local Government Collation agent ought to sign. In fact, the name of collation agent of Lafia Local Convenient on Exh RW98 was Madaki Esan and not Taimako Sunday.

He therefore, submitted that the testimony of PW17 is hearsay and the witness is an impostor that his entire testimonies is built on falsehood. He referred to the case of MOKWE vs EZAUKO & ANOR (2000) 12 NWLR (PL. 686) 143 at 155.

It was contended on behalf of the Petitioners that elections were held in 100 polling units out of 102 of Chiroma ward. The results were duly entered into form EC8AS. The results on form ECSAS ought to be transferred to EC8B. Form EC8As were admitted into evidence and marked Exh 109-208. That contrary to the regulations and guidelines for conduct of 2023 election, the result in form EC8A were incorrectly collated into form ECSB from EC8AS. That the incorrect figures where 48, 729 instead of 15, 048. While the incorrect figures of Petitioners is 854 instead of 3, 308. He tabulated the scores of the parties.

PW16 was called as ward collation agent of Chiroma ward who testified that the scores of forms EC8A were incorrectly entered in form EC8B.

He submitted that polling unit result is the primacy evidence of votes cast at an election. They constitute the foundation upon which the pyramid of election process is built. He referred to the case of OHUABUNWA vs DURU & ORS (2008) LPELR-4699 (CA); NWOBODO vs ONOH (1984) 1 SCNLRI, UGWA & ANOR vs LEKWAUWA & ANOR (2011) 1.PELR-4994 (CA).

He urged the Tribunal to deduct 33, 654 votes incorrectly attributed to A.P.C and add 2, 454 to the Petitioners.

At Gayam ward, polling units results in firm EC8As were incorrectly entered into form ECSB (Esh B59), PW12 and PW 17 were called by Petitioners, that PW17 need not to be an expert to testify as in the case of LADOJA VS AJIMOBI (SUPRA).

He distinguished the case of Ladoja with the present case. That oral evidence camot vary documentary evidence, That PW17 did not also contradict himself telated to accreditation meny paragraphs teterne to ZAKARI Vs MUHAMMED & ORS as inapplicable in this case. That the 2nd and 3r Respondents in Gayam ward were given 29, 857 instead of 9, 753. While the Petitioners were given 1, 453 instead of 2, 979. He made tabulation to reflect that. He therefore urged that the total of 20, 104 votes be deducted from 2nd and 3rd Respondents. While the total votes of 1, 526 votes be added to the Petitioners.

It is trite position of the law that polling unit agents are competent to testify of what transpired at the polling units. See OKE vs MIMIKO (SUPRA). A ward supervisor during an election is a competent witness but the weight probative value to attach to it. See Ladoja vs Ajimobi in the instant case, no any polling unit agent was called as a witness. In fact the witnesses called were having legal disabilities PW12 and PW13 testified without written deposition. While PW17 gave a hearsay evidence when he identified Exh 109-208. As such, the Petitioners could not call genuine witness as such their claim failed.

Assuming without conceding that this Tribunal agreed with the conclusive of the Petitioners as to the scores of the parties and that the Petitioners are leading with 841 votes. That the scores of the parties according to the Petitioners counsel are as follows-

P.D.P 293, 287. While A.P.C is 292, 446 leaving his earlier assertion that they would lead with 4, 130.

But if you add up the figures arrived by the 2 Respondents in his objections, the total scores of the parties will read as follows:

P.D.P 293,287 – 1684 = 291,603

APC 292,446 – 2,956 = 295,402

Thus, the scores of parties will be like this:

APC-295,402

PDP-291,603

The margins of lead between the parties is 3,799.

From the above calculation therefore, the issue No.1 is hereby resolved in favour of the Respondents against the Petitioners.

ISSUE No.2

On the second issue that whether the 1st and 3rd Respondents have no replies to the Petition since they placed the name of one Sule Audu Adamu in their replies to the Petition?

It was argued by the Petitioners that the 1st and 3rd Respondents have no reply to the Petition as they repeatedly listed as a party to the proceedings one Sule Audu Adamu who is a complete stranger and unknown party to the proceedings. He referred to RE-APEH & ORS vs (2017) LPELR-42035. He also submitted that the issue cannot be treated as misnomer because 1st and 3rd Respondents repeatedly listed unknown party as its 2nd Respondent to the proceedings in the entirety of their process. More so, no application for an amendment was brought before the close of pleadings or during the trial to indicate that mistake has been made in naming or listing the parties.

The consequences of this is that the replies filed by the 1st and 3rd Respondents ought to be struck out as being incompetent. He referred to case of APA vs NIGERIA CUSTOM (2011) LPELR-55760 (CA); AGADALINDA ENE vs A.P.C&ORS (2023) LPELR-59672 (CA) PP 35-36 Paras A.

He also submitted that one cannot built something on nothing and expect it to stay. It will certainly collapse. He referred to U.A.Cvs MACFOY (1961) 3 ALL ER, 1169.

Section 133(2) of the electoral Act, 2022, defined Respondent as a person whose election is complained of Sule Audu Adamma is not such person and was not name as such in the in Petition. He therefore, urged the Honourable Tribunal to discountenance the 1st and 3rd Respondents’ replies and strikeout same.

It was argued on behalf of the 1st Respondent that Petitioners in clear disregard of paragraph 18(2)(a)(6)(1)(7)(d) of the 1st schedule to the Electoral Act, 2022, contended that albeit wrongly that the reference made to the 2 Respondent as SULE AUDU ADAMU was introduction of a stranger to the proceedings thereby rendering the reply of the 1st Respondent which was filed on 2 May, 2023, as invalid or incompetent and cited the case of Re-Apeh (Supra). The 1st Respondent’s counsel submitted that case of Re-Apeh (Supra) is not applicable at all.

The applicants, he submitted in Re-Apeh were not parties at trial Court and at Appellate Court. But applied at Supreme Court for leave to substitute the applicants with 2 set of Respondents which the Supreme Court refused.

That in the instant case, the 2nd Respondent’s name was wrongly written in 1st Respondent reply to the Petition. He therefore, submit that the complaint of the Petitioners is mere misnomer which does not defeat the reply of the 1st Respondent. This principle of law was encapsulated in the Court of Appeal decision in the case of D.G N.D.L.E.A & ANOR VS ADE (2022) LPELR-57543 PER MBABA JCA PAGE 15-18 PARAS D-E thus.

He finally, urged the Tribunal to discountenance the Petitioners contention in that regard.

It was also contended by the 3rd Respondents, that the Petitioners made heavy whether on 3rd Respondents description of 2nd Respondent as Sule Audu Adamu instead of Sule Audu Alhaji. He submitted that such an error is not fatal to the defence of the 3rd Respondent as Petitioners were not misled in any way as to the identity of the 2nd Respondent. This is clear misnomer the 3rd Respondent submitted. What is more the Petitioners cannot choose the avenue of final address to raise same. They had all the time but failed to raise same timeously because reliance in the case of HOPE DEMOCRATIC PARTY vs INEC (2009) LPELR-1375 (SC) PP 23-25 Paras F-C.

From the above submissions of the parties, it’s clear that the Petitioners did not show in any way that they were misled by the name Sule Audu Adam instead of Sule Audu Alhaji. It is therefore, a mere misnomer which is not fatal to the defence of the 1st and 3rd Respondents. The case of Re-Apeh’s is inapplicable and it is also too late for the Petitioners to complain that since the Petitioner have ample time to complain right from the time the replies were filed up to the pre- hearing session. In fact, the Petitioners filed a motion on notice on the objection to votes accredited to them by the 2nd Respondent. See HOPE DEMOCRATIC PARTY vs INEC (SUPRA).

Will further add that the decision of Court of Appeal in the case of DG N.D.L.E.A & ANOR vs ADE (SUPRA) PER JCA at Pages 15 to 18 Paras D-E thus,

“Of course the law is trite that suing somebody in a wrong name or office does not defect the suit whether the person sued is actually in existence and has taken steps to accept the name used and or defend the suit see the case of upper GRACELAND HOTEL & ANOR vs EZE IPEH (2019) LPELR-47552 (CA); NJOKU vs UAC FOODS (1999) where such error was treated as mere misnomer.

In view of the foregoing, the 2nd issue is also resolved in favour of the Respondents against the Petitioners.

Having, resolved the two issues against the Petitioners, and the fact that the Petitioners presented subpoenaed witnesses whose testimonies are incompetent and the other witnesses who claimed to be agent but could not comply with the section of the Electoral Law on the appointment of agent, this Tribunal tend the Petition to be immaterial and the same is hereby dismissed.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this:
Verified by MonsterInsights