IN THE COURT OF APPEAL OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
ON FRIDAY, THE 27TH DAY OF OCTOBER, 2023
BEFORE THEIR LORDSHIPS:
CHIOMA E. NWOSU-IHEME, Ph.D JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
OLABODE A. ADEGBEHINGBE JUSTICE, COURT OF APPEAL
APPEAL NO: CA/J/EP/BA/SEN/20/2023
BETWEEN:
AND
COMMISSION
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
After the conduct of the National Assembly election of 25th February, 2023, the Independent National Electoral Commission (the 1st Respondent), declared Kaila Dahuwa Samaila, Dr. (the 2nd Respondent) of the Peoples Democratic Party, (the 3rd Respondent), as the winner in the said contest and consequently returned him, the 2nd Respondent, as the duly elected Senator for Bauchi North Senatorial District in the National Assembly.
Dissatisfied with the said declaration, Ibrahim Sirajo Tanko (the 1st Appellant), who contested the election on the platform of the All Progressives Congress (the 2nd Appellant), challenged the declaration of the 2nd Respondent, before the National and State Houses of Assembly Election Petition Tribunal, Bauchi State (trial Tribunal), along with his political party, the APC, by way of a petition wherein they Claimed the following reliefs:
The grounds upon which the petition is predicated are:
At the conclusion of trial, the trial Tribunal, vide its considered judgment which was delivered on 4th September, 2023, and reproduced at pages 1751-1904 of Volume III of the Record of Appeal, dismissed the Appellants’ petition, hence their recourse to this Court where they lodged a Notice of Appeal, anchored on 28 grounds of appeal dated and filed on 19th September, 2023, and reproduced at pages 1905-1944 of Volume III of the Record of Appeal.
In line with the Rules of this Court, the Appellants filed their Brief of Argument dated 30th September 2023 but filed on 1st October, 2023. Therein, the Appellants set down six (6) issues for determination in the appeal, to wit;
In reaction to the aforementioned Appellants’ Brief, the first to file a response to same was the 3rd Respondent, who, on the 5th day of October, 2023, filed the 3rd Respondent’s Brief, dated 4th October, 2023, wherein Nine (9) legal issues were formulated thus;
In their reply to the 3rd Respondent’s Brief of Argument, the Appellants filed Reply Brief on 10th October, 2023, wherein they replied to sundry issues raised by the 3rd Respondent.
The 2nd Respondent filed his Brief of Argument ion the 6th day of October, 2023. In the said Brief, the 2nd Respondent distilled 6 issues for determination in the appeal thus:
The Appellants responded to the 2nd Respondent’s submissions vide the Appellants’ Reply Brief to the 2nd Respondent’s Brief of Argument filed on 10th day of October, 2023.
The 1st Respondent’s Brief of Argument dated 7th October, 2023, was filed on the 8th October, 2023, anchored on two (2) issues for determination:
It is particularly apt to note that in the Appellants’ 2 Reply Briefs to the 3rd and 2nd Respondents’ Briefs, the Appellants indicated their intention to withdraw and indeed withdrew their first two grounds in the Notice of Appeal and the corresponding first two issues distilled therefrom.
The Appellants’ issues 1 and 2 were withdrawn and struck out at the hearing of the appeal together with the grounds of appeal upon which they were predicated.
A careful perusal of the foregoing issues, as formulated by the parties, shows that, save for semantics, parties formulated same issues, howbeit, in diverse shades. This Court, in the circumstance, shall explore its power to reframe, reformulate, modify or adopt the issues as formulated by the litigating parties. This shall however be borne out of the surviving grounds and with the view to doing justice to the respective case of the parties in the appeal. See: Sanusi vs. Ayoola & Ors (1992) LPELR-3009; State vs. Nwuzor (2018) LPELR-44949 (CA).
In view of this, the surviving issues shall be reformulated thus:
“Whether, in view of the evidence led, both oral and documentary, the decision of the trial Tribunal dismissing the Appellants’ petition was right in the circumstance.”
ARGUMENT OF PARTIES ON THE REFORMULATED ISSUE
Learned senior counsel for the Appellants canvassed a robust argument on the issue of the Appellants’ witnesses and documentary evidence tendered before the trial Tribunal. It was argued that the Tribunal erred when it wrongly disregarded the evidence of PW1. PW2, PW5, PW6, PW7, PW8, PW14 and PW40, who was the Director General of the Appellants' campaign organization in the said election. It was further argued that the witnesses gave cogent and credible evidence in relation to the allegation(s) of non-compliance in some identified polling units. Reliance was placed on the provisions of sections 125 and 126 of the Evidence Act, 2011 together with the provision of section 137 of the Electoral Act, 2022, to submit that evidence given by the said witnesses was direct as to the observations they made on the electoral materials used for the relevant polling units. Counsel for the Appellants further relied on the decision in Aregbesola vs. Oyinlola (2011) 9 NWLR (Pt. 1253) 458 @ 610-611 and submitted that that the Tribunal was wrong to hold that only persons who participated in the conduct of the election or the preparation of the electoral documents, could make observations on the electoral materials used, reiterating that the Appellants’ witnesses, to wit; PW1; PW2; PW5; PW6; PW7; PW8; PW14 and PW40, were competent to so give evidence on behalf of the Appellants and needed not to have either participated in the conduct of the election, preparation of the electoral documents or be polling unit Agents, before they could make observations and give evidence thereon.
It was asserted that the Tribunal, by its conclusion, failed to properly consider the Appellants' pleadings, together with the oral and documentary evidence tendered before it through the Appellants’ witnesses in order to establish its claim of non-compliance in some identified polling units in the area. Counsel cited the provisions of sections 86 (2) (3) & (4); 125; 126; 137 and 168 (1) of the Evidence Act, and the decisions in Aja vs. Odin (2011) 5 NWLR (Pt. 1241) 509@ 534-537 PARA D-G; Uzodinma vs. Ihedioha (2020) 5 NWLR (Pt. 1718) 529 574; Saleh & Ors vs. Muhammad & Anor (2010) LPELR-11068(CA) pg 17-19, Ezechukwu vs. Onwuka (2016) 5 NWLR (Pt 1506) 529 562-563 PARAS. H-A (SC) when submitting that the set of the documentary exhibits tendered at the Tribunal through the Appellants’ witnesses, were admissible and does not amount to documentary hearsay as held by the Tribunal and ought not to have been expunged from the Record of the Tribunal. Counsel reiterated that the provision of section 137 of the Electoral Act, 2022 and paragraph 46 (4) of its 1st Schedule has obviated the need to call oral evidence in respect of the affected polling units in order to prove non-compliance. The decision in Uzodinma vs. Ihedioha (2020) 5 NWLR (Pt. 1718) P. 529 @ 574, was also referred to in urging the Court to resolve the issue in favour of the Appellant.
On whether or not the Appellants were able to establish the claim of alleged mutilation and alteration of the electoral documents in issue and the need to call eye witness to prove same, learned senior counsel averred that the Appellants, vide their pleadings and evidence adduced at the Tribunal sufficiently proved that the said documents were manifestly altered and/or mutilated without any authentication, hence was wrongful. The Appellants cited the decisions in Ojo-Osagie vs. Adonri (1994) LPELR-2386 (SC) 19-20; Oniah & Ors. vs. Onyia (1988)1 NWLR (Pt. 99) 514 @ 545; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, Mbina & Ors vs. INEC & Ors (2017) LPELR-43248; Chime vs. Ezea (2009) 2 NWLR (Pt. 1125) and Uzodinma vs. Ihedioha (2020) 5 NWLR (Pt. 1715) 529 @ 574, to submit that the Appellants’ witnesses adduced cogent and credible evidence to prove the said variation and alteration in the affected electoral documents in issue. Appellants’ counsel noted that the alterations were manifestly conspicuous and that the Tribunal would have arrived at a different decision if it had not failed to properly evaluate the documentary evidence. Whilst relying on the provision of section 86 (4) of the Evidence Act and the decision in Arije vs. Arije (2018) 16 NWLR (Pt 1644) 67 @ 83-84, the Appellants submitted that the Court of Appeal, in this instance, could validly evaluate the evidence tendered before the Tribunal.
Appellants’ senior counsel contended that the Tribunal missed the mark when it held that the Appellants’ claim was speculative and lacked merit, submitting that the Appellants having called relevant witnesses and tendered credible evidence in support of their case, have discharged the evidential burden on them and passed same to the Respondents. Counsel cited the decisions in Nwavu vs. Okoye (2008) 18 NWLR (Pt. 1118) 29 @PP. 64-65, PARAS. D-D; Agagu vs. Mimiko (2009) 2 LRECN 31 @ 66 PARAS. E-G; Uzodinma vs. Ihedioha, supra and ITB PLC vs. Okoye (2021) 11 NWLR (Pt. 1786)163120, paras. E-G, in submitting that the Tribunal ought to have acted on the Appellants’ evidence which were said to be largely unchallenged. It was further contended, vide the provision of section 71 of the Evidence Act, that the resolution of the allegation would substantially affect the outcome of the election result being challenged. The Court was urged to so hold.
The Appellants also took a swipe at the Tribunal’s decision in awarding costs in favour of the Respondents. It was argued that the award of said cost was not judicious and does not arise in the circumstance of the Appellants’ petition. Counsel relied on the decisions in NNPC vs. KLIFCO (Nig.) Ltd (2011) 10 NWLR (Pt. 1255) 209 @ 234-235 para H-B.
Braimoh vs. Alaba (2014) 15 NWLR (Pt. 1430) 321 368 paras. B-D
in urging the court to resolve the issue in favour of the Appellants.
On the issue of whether or not the Appellants dumped the Bimodal Voters Accreditation System (BVAS) machine on the Tribunal and failed to prove the allegation of over-voting alleged in the petition, Appellants’ counsel stated that the evidence required to prove over-voting in an election, in line with the provisions of sections 47 & 51 (2) of the Electoral Act, 2022; paragraphs 19, 20 & 40 of the Regulations and Guidelines for the conduct of election, 2022 amongst others, is by way of the record of accredited voters found in the BVAS machines; the voters registers and the polling unit results in Form EC8A (1), which counsel contended were tendered by the Appellants in order to prove their case at the Tribunal. It was contended that the Appellants, in proving the allegations, called 40 witnesses, P1-P40 and also tendered the polling units result sheet (Form EC8A(1)) as well as the BVAS devices for the 91 polling units under focus. It was the submission of the Appellants that the witness, PW28, called to demonstrate the contents of the BVAS stated that the accreditation data of the affected polling unit had been “purged out”. Counsel cited the decision in Oyetola vs. INEC (2023) 11 NWLR (Pt. 1894), (2023) LPELR-60392 (SC), and submitted that the Tribunal reached a perverse decision when it held that the Appellants ought to produce the back-end server report of accreditation. It was contended that the 1st Respondent deliberately withheld the BVAS machines for some selected polling units, arguing in the circumstance that Oyetola vs. INEC (supra), was misapplied. Counsel relied on decisions in Ashiru vs. INEC (2020) 16 NWLR (Pt 1751) 416; Ojo-Osagie vs. Adonri, supra, Oniah & Ors vs. Onyia, supra and Lado vs. Masari (2021) 13 NWLR (Pt. 1793) 334, to submit that the Tribunal was not permitted to make a different case from that of the parties before it.
The Appellants noted that none of the Respondents cross-examined the witness on non-existence of the record of accreditation in the BVAS machine, and then contended; vide the decisions in Gaji vs. Paye (2003) 8 NWLR (Pt 823) 583 and Anyanwu vs. PDP (2020) 3 NWLR (Pt 1710) 134 @ 173, that the Respondents have all admitted that the record was not in existence. It was the contention of counsel that the Appellants did all what was required of them to do in the circumstance. Placing reliance on the decisions in Olusanya vs. Osinleye (2013) 7 NWLR (Pt 1367) 148 @ 164; UBN PLC vs. Ravith Abdul & Co. Ltd (2019) 3 NWLR (Pt 1659) 203 @ 224 and Oyetola vs. INEC (supra), counsel submitted that the Appellants, been constrained, could not possibly produce the BVAS report in place of the data to be extracted from the BVAS device. He noted that the law will not compel the impossibility, hence the reliance of the Appellants on the entries in Election Forms ECA8(1) and the Voters registers tendered in evidence before the Tribunal in order to prove the alleged over-voting. It was submitted that the Appellants, in view of the foregoing, did not dump the BVAS on the Tribunal but was rather constrained, stressing that the Tribunal ought to make do with the Election forms and the voters registers tendered in evidence and rule in favour of the Appellants. The Court was urged to resolve the issue in favour of the Appellants, and subsequently allow the appeal.
In response to the foregoing, the 3rd Respondent, who was the first to file an answer to same, submitted that the trial Tribunal was right when it struck out and expunge the evidence of the listed witnesses of the Appellants, arguing that the witnesses were either Ward Agents or DG of the Campaign Organization who were not at the polling units over which they made to give evidence. Counsel reiterated on what amounts to hearsay evidence and witnesses tendering same referring to the decision in Ladoja vs. Ajimobi (2016) LPELR-40658 (SC); Mark vs. Abubakar (2009) 2 NWLR (Pt.112) 79 @ 184-185.
It was argued that the provisions of section 137 of the Electoral Act and paragraphs 46 (4) of its First Schedule relied upon by the Appellants were not applicable in the instant case, reiterating that call for eyewitness in the circumstance, cannot be dispensed with as the makers of the documents needed to be cross-examined by the adverse parties to the petition. The 3rd Respondent underscores the indispensability of the BVAS machines reports in establishing the claim of over-voting by the Appellants as well as evidence of eyewitness in proving the allegation of alteration and mutilation of the result sheets, citing, in support of the deduction, the decision in Abdulmalik & Anor vs. Tijani & Ors (2012) LPELR-19731 (CA). Counsel submitted in view of the foregoing, that the petition of the Appellant, in this regard, is mere academic, urging the Court to so hold. Counsel emphasized that the Appellants suffered no miscarriage of justice by expunging the hearsay evidence of the affected Appellants’ witnesses. The court was urged to resolve the issue in favour of the 3rd Respondent.
Senior counsel for the 3rd Respondent reiterated that the Tribunal was correct in not admitting the evidence of PW XX and PW XXII, asserting that no pleading was placed before the Tribunal in support of the said evidence, relying on the decision in Nsiegbe vs. Mgbemena (2007) 364 @ 390-391; Buhari vs. Obasanjo (2005) 2 NWLR (Pt 910) 241 @ 362-363; Ukpanah vs. Ayaya (2011) 1 NWLR (Pt 1227) 61 @ 83-84 and Azubuike vs. Govt, Enugu State (2014) 364 @ 390-391. It was submitted that the oral evidence of the said witnesses do not suffice to prove the allegation of over-voting raised in the petition, concluding that the Appellants petition thereon is an academic issue and same is bound to fail on the strength of the decisions in Amechi & Anor vs. Okoye (2008) LPELR-5160 (CA); Oje & Anor vs. Babalola & Ors (1991) LPELR-2368 (SC). Counsel urged the court to resolve the issue in favour of the 3rd Respondent.
It was again the argument of the 3rd Respondent that the claim by the Appellants that copies of the result sheet issued to the Agents of the Appellants and the Police, were at variance with the result with which the 2nd Respondent was returned as the winner of the Bauchi North Senatorial District, was raised for the first time in the final written address of counsel for the Appellants and that the Tribunal was right to have so held. It was contended that there was no appeal lying against aspect of the Tribunal ruling that the documents were not substantially at variance with the one used by the 1st Respondent to declare the 2nd Respondent as the winner of the senatorial seat, submitting in the instance that the said finding remains subsisting and binding on the parties to the action. The decisions in Amechi & Anor vs. Okoye (supra) and Dabo vs. Abdullahi (2005) LPELR-903 (SC), were referred in iterating that the instant appeal is academic. It was stated, while relying on the decision in Nwosu vs. Imo State Environmental Sanitation Authority & Ors (supra), that the ruling of the Tribunal need not be upturned having not occasioned any miscarriage of justice on the Appellants. The court was urged to resolve the issue in favour of the 3rd Respondent.
On whether or not the Appellants were able to prove their case at the Tribunal, 3rd Respondent’s counsel argued that the trial Tribunal was correct in holding that the Appellants failed to prove to the satisfaction of the Tribunal, its case as pleaded in the petition. 3rd Respondent’s counsel, while relying on the decisions in Salisu & Ors vs. Abubakar & Ors (2014) LPELR-23075 (CA); Bullet Int’l Ltd & Anor vs. Olaniyi & Anor (2017) LPELR-42475 (SC); Nwankwo & Anor vs. Nwankwo (2017) LPELR-42832 (CA), affirmed that the Appellants failed to discharged the burden placed on them to prove the allegation in their petition that would have entitled them to the reliefs sought therein. It was further asserted that the Respondents; having elicited evidence from the Appellants’ witnesses under cross-examination in support of their pleadings, did not abandon the said pleadings merely by not calling witnesses. Counsel cited the decision in Akomolafe & Anor. Vs. Guardian Press Ltd & Ors (2010) LPELR-366 (SC), to contend that the Appellants failed to prove their allegation of substantial non-compliance in the election under contention. The 3rd Respondent highlighted that the Appellants; particularly on their allegation of over-voting, failed to establish that there were over-voting in the said election by complying with the requirement to do so as laid down by the Supreme Court in its decisions in Audu vs. INEC (No. 2) (2010) 13 NWLR (Pt 1212) 456 @ 547; Awuse vs. Odili (2005) 16 NWLR (Pt 952) 416 @ 490-491; APC vs. PDP (2020) 17 NWLR (Pt 1754) 425 @ 437 and most importantly, in the recent decision in Oyetola v INEC(supra), asserting strongly that the failure of the Appellants to tender the BVAS report, which is the main source of the numbers of the accredited voters, was fatal to the Appellants’ case.
On the allegation of the un-initialed alteration and mutilation with alleged irreconcilable entries made by the Appellants on the electoral documents in the said election, counsel for the 3rd Respondent stated that the allegation, being criminal in nature, placed the duty on the Appellants to prove same beyond reasonable doubt, citing in support the case of Dantiye vs. Kanya (2009) 4 NWLR (Pt 1130) 13 @ 33 and Okechukwu vs. INEC (2014) 17 NWLR (Pt 1436) 255 @ 299. Counsel noted that the document was presumed to be rational and correct as issued, and that any rebuttal of the presumption thereto must be proved, failure of which the petition must fail, stating vide the decisions in Nyesom Wike vs. Peterside & Ors (2016) LPELR-40036(SC); Ogu vs. Ekweremadu (2006) 1 NWLR (Pt 961) 255 and Abdulmalik & Anor vs. Tijani & Ors (2012) LPELR-19731, that the Appellants largely failed to prove the said alteration/mutilation.
In replying to the 3rd Respondent’s argument as reviewed hereinabove, the Appellants, in their Reply Brief, contended that the majority of the decisions relied upon by the 3rd Respondent are inapplicable and that the 3rd Respondent seemingly failed to appreciate the case of the Appellants especially as it relates to the provision of section 137 of the Electoral Act, 2022 and paragraph 46 of its 1st Schedule; stating that the law, as it stands now, is as stated in Oyetola vs. INEC (supra), in relation to the contents of BVAS machines.
The Appellants proceeded in what seemingly appears as rehashing of their case in the Appellants Brief, save for few response to new issue raised by the 3rd Respondent, to wit; occasioning a miscarriage of justice by virtue of the rejection of the evidence of PW XX and PW XXII; and whether the Appellants pleaded the fact of the variation of the EC8As, wherein counsel for the Appellants cited the decision in RCC Nig Ltd vs. RPC Ltd (2005) NWLR (Pt 934) 615 @ 637 to contend that the Tribunal erred when it refused to consider relevant evidence in support of the Appellants’ allegation.
The 2nd Respondent was next in line to filed his Brief of Argument. It is to be noted that the surviving issues in the said 2nd Respondent’s Brief, at a close scrutiny, are on all fours with that of the 3rd Respondent which have been reviewed hereinbefore and that it was apparent that the position of the 3rd and 2nd Respondents in the appeal, expectedly aligned. And in order not to dissipate precious but scarce judicial time, I shall carefully scan through the said Brief in order to assess few additions that may subsist therein; otherwise, the initial review of the related issues of the 3rd Respondent are hereby adopted.
While responding to the finding of the Tribunal with respect to the Appellants’ allegations of mutilation and alteration, the 2nd Respondent posited that the Tribunal finding that the Appellants failed to plead relevant facts of same, relates only to poling units 006 and 009 in Tunfarfi Ward of Shira Local Government of Bauchi State and not the entire petition. The 2nd Respondent submitted that the contention of the Appellants that they pleaded the inconsistency or variance between the form with which the 2nd Respondent was declared and returned as elected Senator with those issued to the Appellants’ agents and the Police, is unfounded, as no such pleading could be found anywhere in the petition or in the Record before this Court. Decisions in Kubor vs. Dickson & Ors (supra) and Yahaya vs. Dankwambo (2016) LPELR-48364(SC), amongst other were cited to support the contention that the said evidence goes to no issue.
Counsel argued that the fact that the Appellants’ Agents signed the election results of their respective polling units indicates that the Agents were in agreement with the said results, and therefore could not turn around to deny the validity of the same result, relying on decision in Adefarasin vs. Dayekh (2007) 11 NWLR (Pt 1044) 89.
On the issue of dumping of the BVAS devices on the trial Tribunal, the 2nd Respondent restated the law that the means of proving an allegation of over-voting in an election is either by the original contents of the BVAS machine and/or the certified true copy of the record of the BVAS machine in addition to the Voters’ Registers and Form EC8A(1) in line with the decision of the Supreme Court in Oyetola vs. INEC (supra). It was submitted in the circumstance, that the Tribunal was right in holding that the Appellants only dumped the BVAS machines on the Tribunal in the manner they conducted their petition at the Tribunal. Counsel stated that the Tribunal was only allowed to evaluate evidence placed before it in line with the decision in Ashiru vs. INEC (supra). It was stressed that the Appellants, though aware of the fact that the record of the BVAS existed, failed to obtain same and tender before the Tribunal, and are therefore caught up by the presumption of withholding evidence under section 167 (d) of the Evidence Act, 2011, citing the decision in Ekweozor v. Regd Trustees SACN (2020) 11 NWLR (Pt 1734) 51 @ 102. The court was urged to dismiss the appeal and affirm the judgment of the Tribunal.
The Appellants also replied to the 2nd Respondent’s submission vide the “Appellants’ Reply Brief to the 2nd Respondent’s Brief of Argument”, which was manifestly fraught with rehash of the Appellants’ Brief of Argument. It is important, at this point to remark, albeit, briefly that the essence of Reply Brief is not to make good or further strengthen the position of the Appellant in an appeal, rather same is to answer to new issue(s) that evolve in the Respondent’s Brief, which is not the case in the instant appeal. See: Statoil Nig Ltd vs. Inducon Ltd & Anor (2018) LPELR-44387 (SC).
The 1st Respondent, who was the umpire in the said election, also filed its Brief, where the position maintained was similar to the previous 2 Respondents. The submission made in the 1st Respondent’s Brief was majorly on the failure of the Appellants to prove their case in the petition before the Tribunal. Counsel for the 1st Respondent cited a long line of authorities, both statutory and judicial thus; the provisions of section 139 (1) of the Electoral Act; sections 133, 147, 167 & 168 of the Evidence Act and decisions in Hashidu vs. Goje (2003) 15 NWLR (PT. 843) 352; Nyesom vs. Peterside (supra); Ogboru vs. Okowa (2016) 11 NWLR (Pt. 1522) 148; Yahaya vs. Dankwanbo (supra); Ladoja vs. Ajimobi (supra); Olofin & Anor vs. Rasaki & Ors (2014) LPELR-41205 (CA); Olvade Bema Madayi & Anor vs. Kwamoti Bitrus Laori & Ors (2019) LPELR-48734 (SC); ANPP vs. Usman ( 2008) 12 NWLR (Pt. 110) 1; Nwobodo vs. Onoh (1983) 10 SC 42: Audu vs. INEC (2022) 13 NWLR (PT. 1212) 431 @ 522 PARAS CE; Kaka vs. Daniel (2010) All FWLR(Pt 516) 588, amongst others, to drive home the consensus points of the Respondents that the Appellants failed to prove their case in the Tribunal and that the doctrine of substantial compliance inures to the Respondents in line with the provision of section 133 of the Electoral Act which the Appellants were said to have failed to impugn. The 1st Respondent urged the Court to resolve the issues in the appeal against the Appellants and dismiss the appeal while affirming the decision of the trial Tribunal.
RESOLUTION OF THE ISSUE FOR DETERMINATION
The Appellants’ grouse before the trial Tribunal which heard their petition over the outcome of the National Assembly Election held on 25th February, 2023, was predicated on the twain grounds that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election, and that, the election of the 2nd Respondent was invalid by reason of substantial non-compliance with the provisions of the Electoral Act, 2022, as amended.
The Appellants, as Petitioners in the trial Tribunal, were of the view that the conduct of the election by the 1st Respondent suffers substantial non-compliance with the provisions of the Electoral Act, 2022, in that the said election was reportedly marred with irregularities, unauthenticated alterations, over-voting, suppression of result scored by the Petitioners, wrongful computation of results, unlawful allotment of fictitious scores in favour of 2nd and 3rd Respondents, which non-compliance substantially affected the outcome of the election in 91 out of the 631 polling units of the Bauchi North Senatorial District. The said 91 polling units were said to cut across 31 wards in the Senatorial District. See: paragraph 33 of the Appellants’ petition at page 7 of the Volume 1 of the Appeal.
The case of the Appellants in their petition, as stated in paragraphs 21–36 of their pleading before the tribunal, particularly in paragraphs 33-36 of the pleading are hereunder reproduced;
33) The petitioners further aver that in the 91 polling units of Shira, Zaki and Jama'are Local Government Areas of Bauchi State as stated in paragraph 18 of this petition, the 1st Respondent failed to comply with the above procedure thereby leading to massive irregularities such as over voting, unauthenticated alteration, wrong computation of results and arbitrary allotment of votes.
34) …
35) The Petitioners plead all the Electoral forms used for the election especially in the disputed polling units stated herein in proof of the complaints herein. The petitioners further state that the votes unlawfully credited to the 1" and 2nd Respondents in all the identified polling units hereinafter particularized are vitiated and liable to be voided by reason of non-compliance with the provision of the Electoral Act, 2022 (as amended) and election guidelines and manual.
36) The Petitioners further state that upon deduction of unlawful votes in the aforesaid Polling Units, it is the 1st Petitioner and not the 2nd Respondent who scored majority of the lawful votes cast at the election and satisfied the requirement of the law for being elected as the senator of the Federal Republic of Nigeria representing Bauchi North Senatorial District.
The Appellants, by their pleadings, no doubt, believed that the facts pleaded by them do exist and upon same, they crave the Tribunal to find in their favour by granting the reliefs sought. This will then invoke the cardinal principle of law that, whoever desires any Court to give judgment in his favour as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See: section 131 (1) and (2) of the Evidence Act.
It is trite that the standard of proof required of any Petitioner who alleges non-compliance with the statutory provisions in the conduct of an election in certain polling units, must prove same on the scale of preponderance of credible and admissible evidence or on the balance of probabilities similar to what is obtainable in any civil matter. The law in this circumstance, placed a primary burden on the Appellants; as the Petitioners in the Tribunal below, to lead credible evidence, with a view to establishing the existence of the assertions in their petition, so as to shift the evidential burden to the Respondents, who will then be obligated to disprove the established facts of the Appellants by preponderance of credible evidence. See: Oyetola v INEC (supra).
After a careful perusal of the parties’ pleadings and addresses filed before the trial Tribunal, vis-à-vis the set of documentary and oral evidence tendered thereto, this Court could safely surmise that, reliefs sought by the Appellants in their petition was founded on the Appellants’ contention that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election as well as allegation of substantial non-compliance with the provisions of the Electoral Act, 2022. By their allegation that the 2nd Respondent was not elected by majority of lawful votes cast at the election conducted by the 1st Respondent, the Appellants have opened themselves to the obligation of; (a)- tendering all relevant documents, and also (b) calling competent witnesses to adduce oral evidence in linking the documents to their allegations in order to clearly demonstrate that the elected candidate, truly, did not win the majority of the lawful votes cast at the election. The relevant documents include Voters Registers; Electoral Forms, including EC8A (1); Accreditation Registers (now replaced with the BVAS or report of accreditation from BVAS) and any other documents used in the conduct of the election. Also, the witnesses called must testify to the alleged illegality or unlawfulness of the votes cast and how the proved unlawfulness substantially affected the result of the election. See: Oyetola v INEC (supra).
In Buhari v. INEC (supra), the Supreme Court stated the requirements of the desired witnesses as thus;
“.. .. who saw it all on the day of election, not those who pick the evidence from an eye witness. No, they must be eye witnesses too. Both (the electoral) Forms and witnesses are vital for contesting the legality or lawfulness of the votes cast and the subsequent result of the election. One cannot be substitute for the other…”
The apex court added thus:
“.. it is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrongdoings or irregularities which affected substantially, the result of the election.”
The Appellants in this appeal, by their allegation that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election, must;
(i) place two sets of results; one being the official votes announced by the electoral body which they consider to be unlawful and the other being the result they believe to be correct;
(ii) They must tender in evidence all the necessary forms at the election; voters register and the BVAS report of accreditation/machine;
(iii) They must call witnesses who have capacity to give positive, direct and credible evidence to prove how votes were misappropriated at the election;
(iv)They must prove that the illegality and/or unlawfulness affected the result substantially - Oyetola v. INEC (supra); Faleke v. INEC (2016) 18 NWLR (Pt.1543).
These witnesses may either be polling unit Agents of the political parties fielded in the election; Presiding Officers of the polling units under focus; or any person, who must be present at the polling units and who observed the inaccurate counting of votes, misappropriation of votes and indiscriminate allocation of votes, amongst other breaches. Such witnesses must be able to give direct, cogent and credible evidence, rather than hearsay evidence. See: Buhari v. Obasanjo (supra).
I have taken another calmer look at the pleadings and evidence of the parties, together with the decision of the trial Tribunal on the Appellants’ petition, and I ask myself the question whether the Appellants were able to meet and/or discharge the foregoing strict line of duty imposed upon them by law.
In the Brief of Argument, the Appellants were vehement in their contention that the Tribunal erred when it excluded evidence of their witnesses, to wit; PW I; PW II; PW V; PW VI; PW VII; PW VIIl; PW XIV and PW XL, who were either the Appellants’ Ward Collation Agents in some selected wards in the Senatorial District for the election, or Director General of the Appellants’ campaign organization for the said election. The decision of the Tribunal was based on its opinion that the affected witnesses were not competent and that the evidence adduced by them was far from being direct, cogent and credible. Same fate befell some other witnesses called by the Appellants to testify in the proof of their petition, whose evidence were said to have amounted to hearsay evidence or grossly insufficient, even where they were eye witnesses. I shall return to elaborate on this anon.
On their part, the 1st-3rd Respondents, as could be anticipated, were unanimous in aligning with the position maintained by the trial Tribunal, that the Tribunal was right in its decision thereon. When a closer look is taken of the surgical analysis done by the trial Tribunal, of the 40 number of witnesses called in evidence by the Appellants, I am unable to see the justification for the Appellants’ contention in the manner being put up in the instant appeal. I agree with the Tribunal in its observation thus:
The third category of the witnesses are; PW.I, PW.II, PW.V, PW.VI, PW.VII, PW.VIII, PW.XIV & PW.XL. This class of witnesses are mostly ward collation agents; party stalwarts and party campaign managers.
They are not direct eye witnesses to what transpired in various polling units.
My Lords may recall that this petition under consideration is anchored upon two grounds:
(1) that the 2nd Respondent did not score the majority of lawful votes cast at the election; and
(ii) the election was invalid by reason of non-compliance with the Electoral Act. The facts in support of these two grounds revolved around the allegation of over voting, arbitrary allocation of votes, unauthenticated alterations, mutilations and cancellations on electoral forms etc., these allegations occurred naturally at various polling units. The courts over time have set out the criteria of witnesses who shall testify in proof of allegations of this nature. In Binta Vs Cliff & Ors (2019) LPELR-48921 (CA) the Court of Appeal held that: "It is only the persons who were physically present at polling units that can give evidence as to what transpired there. It is only the polling agents who were evidence of ballot paper inaccurate accounting. The electoral officers are not presiding officers or assistant presiding officers or polling unit agents at the election complained about. The appellants ought to have called their polling unit agents who were present at the units they complained about."
The above holding notwithstanding, the trial Tribunal then forayed into a close scrutiny of the persons of, and evidence adduced by, the affected witnesses, in apparent fidelity to the provisions of section 137 of the Electoral Act. After the extensive arduous task undertaken by it, the Tribunal held:
My Lords, a careful look at the evidence adduced by PW.I, PW.II, PW.V, PW.VI, PW.VII, PW.VIII, PW.XIV, & PW.XL will reveal that it is not a direct evidence as required by the law. All facts contained in their statements are product of information given to them by the eye witnesses at the various polling units. What stopped the Petitioners from calling the very polling unit agents of those polling units, I don't know.
However, they took the risk of calling witnesses whose testimonies can better be described as hearsay evidence because they were not at the polling units where the infractions, over voting, mutilations and alterations of electoral forms took place. Therefore, their evidence is unreliable and not admissible in law and all documents tendered through them particularly all form EC8AS executed at the polling units which they admitted not executing, and which were tendered through these witnesses are inadmissible, because they were tendered through witnesses other than the makers and are not in a better position to answer questions during cross examination in respect of these documents. Looking at the complaints of the Petitioners which is mainly on over voting which entails details of the voters accredited with BVAS, the actual number of votes cast which exceeds the number of accredited voters, the manipulation of figures in favour of a certain political party, the complaint of alterations, mutilations and cancellations of the results with the aim of aiding a particular candidate, all these acts happened at the polling units. Therefore, the person qualified to give account of what transpired at the polling unit is the polling agent of the political party, electoral officers present at the polling unit or voters who witnessed what happened at the polling units. Any person other than these people, is merely giving hearsay evidence which is inadmissible in law. See the following: Buhari Vs Obasanjo (2005)13 NWLR (pt.941) p.1. Chukwu Vs PDP (2016) LPELR- 40962 (CA) and Orji Vs ugochukwu (2009) LPELR 4798 (CA).
Putting this matter in a clear perspective, Lord Justice Abiru J.C.A. held in the case of Onyeresi Vs Okorocha (2019) LPELR - 49475(CA) thus "Now it is commonsensical that the nature of the irregularity complained of by a Petitioner will determine the nature of the proof required of him to succeed. ……”
I am persuaded by the foregoing reasoning and holding of the trial Tribunal and I am not inclined to disturb same. I view as skewed, the contention of the learned counsel to the Appellants that the concerned witnesses could validly make observation from the evidence collated from their various locations, most times, far away from the polling units whose election results were being contested, citing in that regard, the decision in Aregbesola v Omisore, supra. With due respect, learned counsel ought to know, and I am sure they know, that ship on the then voyage has since detoured and berthed on another anchorage, in that under the new regime of electoral law, it must be the witness who witnessed the alleged infraction being challenged.
The apex court in the oft-cited authority under this head; Oyetola v. INEC, supra, per Jauro, JSC, while stating the law on whether the provision of section 137 of the Electoral Act, 2022 obviates the need to call eye witness in proof of electoral non-compliance and breaches, enjoined Petitioners in such instance, as being duty bound “to call witnesses who witnessed the alleged acts of non-compliance to testify”. See: pages 58-59 @ paras D-E of the E-Report This remains the law.
It is apt to note that the said 8 witnesses testified under oath of receiving most of the evidence from the Agents at the poling units, and largely that they were not polling units Agents themselves. I share the same query with the Tribunal on why those polling Agents were not called as witnesses to give eye witness accounts of the events they witnessed first-hand. The Apex Court, much earlier, had stated the law unequivocally that competent witnesses to adduce evidence in an election petition must be him, “who saw it all on the day of election, not those who pick the evidence from an eye witness” - Buhari vs. INEC (supra).
The position of law in this regard remains constant like the northern star, to the effect that any Petitioner who challenges the propriety or otherwise of any election, based on non-compliance with the statutory provisions guiding the conduct of election, such person must prove same through credible evidence elicited from eye-witnesses from the various polling units affected by the alleged non-compliance. Such eye witnesses must be those who could testify directly in proof of the alleged electoral infraction, in this instance, direct evidence on over voting and arbitrary allotment of votes as alleged by the Appellants in their petition. See: Buhari vs. Obasanjo, supra; Andrew @ Anor vs. INEC & Ors. (2017) LPELR-48518 (SC); Buhari vs. INEC (2008) 19 NWLR (Pt 1120) 246 @ 391
In this wise, the Appellants, having so asserted, have the duty to prove the substantial non-compliance for which the election, in which the 2nd Respondent was declared and returned elected, must be invalidated in line with the decision in Audu v. INEC & Ors (No. 2) (2010) 13 NWLR (Pt 1212) 456 @ 519. Failure of the Appellants herein to measure up with the specifics of this duty is fatal to their case.
In view of the foregoing, I find the Appellants’ argument, in this regard as being bereft of merit and mere academic, to which this Court would not be found to expend its precious judicial time.
There was this strong contention by the Appellants on the finding of the Tribunal on the evidence adduced by PW XX and PW XXII, who were Appellants’ Agents respectively at Polling Units 006 and 009, Tsafi Ward of the Senatorial District, whose evidence were equally discountenanced and expunged by the Tribunal on the ground of same not being pleaded in the Appellants’ petition. A closer look at the petition, as reproduced in pages 1-489 of volume 1 of the Record of Appeal, shows that same was pleaded, but as being in Tsafi Ward rather than Tunfafi Ward. It is observed that allegation of over voting was pleaded and particularized in relation to both polling units. On this score, I agree with the Appellants that the trial Tribunal ought not to have expunged same. I must however state that the position of law is settled in cases like the instant one, as to whether every wrongful rejection and/or admission of evidence will vitiate the decision of the Court. I am clear in my view that the decision of Court, arrived at vide a wrongful rejection or admission of hitherto admissible/inadmissible evidence, respectively, will not be vitiated where it does not have effect on the judgment and could not have reasonably led to the reversal of the said decision. The provision of Section 251 (2) of the Evidence Act stipulates that wrongful rejection of evidence, shall not, of itself, be a ground for the reversal of any decision in any case, if it appears to the Court on appeal, that had the evidence excluded been admitted, it may reasonably be held that the decision would be the same. See: Shitu & Ors v. Fashawe; Okobia v. Ajanya (1998) LPELR-2454; Tyonex Nig Ltd v. Pfizer (2020) 1 NWLR (Pt 1704) 125 and Yakubu v. Odidi (2022) LPELR-57897
Having so stated, it is my respectful opinion that the wrongfully excluded evidence of PW XX and PW XXII, even if it had been admitted, would not inure to the advantage of the Appellants nor would it have tilted the decision of the Tribunal in their favour. I maintained this position, firstly, in view of the fact that, even from the face of the Appellants’ petition, the sum of the votes involved would not change the fortune of the Appellants. By their own data, even though unproven, accredited voters in the 2 polling units were 97 and 61 respectively, and the Appellants are working to beat a margin of about 2,000 votes declared in favour of the 2nd Respondent at the election. Secondly, and more importantly, as rightly remarked by the 3rd Respondent, the allegation pleaded in the said paragraph 33 (xxv) and (xxvi) of the Appellants’ petition borders on over voting in the affected polling units. It is trite that an allegation of over voting in any election could not be established on oral evidence of eye witness alone, same must be clearly proved by relevant documents, which include voters register; Form EC 8 A (1), as well the BVAS machine and/or report of the contents of the BVAS machine used in the said election. This was the position in Oyetola v. INEC (2023) LPELR-60392 (SC) @ page 48, where Okoro, JSC, had this to say:
"Whenever it is alleged that there was over voting in an election, it is my view that the documents needed to prove overvoting are the voters register to show the number of registered voters, the BVAS to show the number of accredited voters and the Forms EC8AS to show the number of votes cast at the polling unit. These three documents will show exactly what transpired at the polling units. Failure to tender these documents would be fatal to any effort to prove over-voting…
From the analysis done by the Tribunal on the evidence adduced by the 2 witnesses, documentary exhibits as well as the BVAS machine in relation to the 2 polling units were tendered in evidence. I therefore agree that the evidence of the two witnesses is capable of helping the case of the Appellants in a way. It is, however, unfortunate that the Appellants failed in fulfilling the 3rd leg of the requirements of proving over voting in an election, id est ; for the contents of the BVAS to be demonstrated to the Tribunal, in order to establish with precision, the actual number of accredited voters. The BVAS machine, instead, was dumped on the Tribunal with no content and/or demonstration at all, not even the substitute provided in Oyetola v. INEC, supra, i.e., certified true copies of the BVAS report of accreditation, was produced and tendered in evidence by the Appellants. This failure to produce the BVAS report of accreditation is fatal to the entire allegation of non-accreditation, improper accreditation and over voting by the Appellants.
Now, on the second ground of the petition that the election of the 2nd Respondent was invalid by reason of (substantial) non-compliance with the provision of the Electoral Act, 2022, counsel for the Appellants made heavy weather out of the Tribunal’s findings on the allegation of mutilation, alteration of the EC8A forms, stating that the Tribunal was wrong to hold that the Appellants failed to plead the issue of non-compliance or unauthorized alterations and mutilation on the electoral forms. The Respondents on their part agreed with the Tribunal that the Appellants indeed failed to plead the allegation that the result used by the 1st Respondent to declare and return the 2nd Respondent as the winner of the election into Bauchi North Senatorial District, was at variance with the copies of the result given to the Police and the Petitioners’ Agents. I have carefully looked at paragraphs 39 (ii)-(xxix); 44 (i)-(xviii) amongst others, of the Appellants’ petition as found at pages 8-15 and 19-24 of volume 1 of the Record of Appeal, and found that the Appellants made copious references to what seems like the allegation under review - alteration and mutilation, but not the allegation of the result used to declare and return the 2nd Respondent as the winner of the election being at variance with the copies given to the duo of the Police and the Petitioners’ Agents. Be that as it may, the Tribunal rightly stated the law as to values attached to evidence adduced without the foundational pleading of same, as going to no issue. The Supreme Court in Akinbade & Anor v. Babatunde & Ors (2017) LPELR-43463(SC), @ pg 19-29, paras F-B, stated thus:
“It is trite as well that for the evidence proffered in a case to be worthy of being evaluated, parties must have joined issues on the facts sought to be established by such evidence in their pleadings. Evidence in respect of unpleaded facts, facts on which parties had not joined issues on in their pleadings must, having gone to no issue, be ignored. See: Morounfola v. Kwara Tech. (1990) NWLR (Pt 145) 506 and Ademeso v. Okoro (2005) 14 NWLR (Pt 945) 308.”
The Tribunal at pages 1849-1850 of the Record of Appeal, volume 3, held thus:
The Petitioners at page 9 of their written address submitted that the Petitioners called relevant witnesses in proving their case and have tendered electoral forms relied by INEC in support of the return of the 2nd Respondent as the winner of the election which forms turned out to be at variance with the duplicate copies issued to the agents of the Petitioners and the Nigeria Police. In response to the submission, the 3rd Respondent in his reply submitted that this fact was not pleaded anywhere in the petition, let alone adducing evidence in support of this assertion. It is trite that address of counsel no matter how eloquent cannot take the place of pleadings and evidence. The case of PDP Vs INEC & Ors (2012) LPELR-9225 (CA) was referred to.
I have taken pain of going through the gamut of the petition, there is no single paragraph where this fact was pleaded. The petitioners never alleged inconsistence or variance between the forms relied on by INEC & the ones submitted to the agents of the parties and the Nigeria Police. The only thing done by the Petitioners is to tender three set of form EC8A polling unit result. 1- duplicate copies given to the 2nd Petitioner's agents 2- Certified copies by the INEC and 3- Copies given to the NPF and Certified by the Police Force Bauchi Command.
However, there was no demonstration by any of the Petitioners’ witnesses to show the tribunal the alleged discrepancies or inconsistency between the forms certified by INEC, duplicate given to polling unit agents, and the copies given to the Nigeria Police. It is trite that facts not pleaded go to no issue.
See Kubor is Dickson (supra) and PDP Vs Nwankwo & Ors (supra).
It seems to me that parties herein are involved in needless dispute as to the use of word, if not a pure game of hide and seek. The Appellants, who never disputed that the phrase “at variance” was first used in the final written address, seems to be interpreting the words used in their petition. In their own words at paragraphs 4.46 of the Appellants’ Brief of Argument” filed in this appeal, the Appellants asserted thus:
4.46 In the instant case, contrary to the holding of the Tribunal, the Appellants pleaded at Paragraphs 39(ii-xxix), 44(i-xviii), and 52(1- (xi), of the petition the facts relating to allegation of mutilations and alteration that:
"the scores of the PDP were later wrongly and unlawfully changed on the original of form EC8A(i)"; that "the Form EC&A) was heavily mutilated"; and that "Form EC8A) was also riddled with mutilation of figure in an attempt to cover up over-voting" See Pages 8 to 15 of the record of appeal vol, i. Furthermore, the Appellants also pleaded specifically at Paragraphs 40(1)-(xvii), 41 and 48(1) of the petition that "the forms EC8A(D) used in the polling unit was not properly filled as the entry contained therein were irreconcilable and the forms were riddled with mutilations, un-initialed and unlawful alteration": that "the Form EC8A) was heavily mutilated"; that
"the Form EC8A) was heavily mutilated without any authentication": and that "the Form EC8A(i) was altered without authentication".
All the foregoing, in my opinion, fail to add up as meaning same thing as “electoral forms relied by INEC in support of the return of the 2nd Respondent as the winner of the election which forms turned out to be at variance with the duplicate copies issued to the Agents of the Petitioners and the Nigeria Police” which was much later used by the Appellants in their final written address. The position of the law, in this regard is yet to change, to the effect that no matter how eloquent and elegant the address of counsel is, it cannot usurp the place of the case of the litigant.
In all, the Appellants were found by the Tribunal, rightly so in my opinion, to have failed to prove their case as presented in their petition for which they are duty bound to do in a way stipulated by law. The provision of Section 137 of the Electoral Act, 2023 and paragraph 46 (4) of the First Schedule thereto will not avail the Appellants from proving their allegations of non-compliance with the provision of the Electoral Act. See: Oyetola vs. INEC, supra, per Jauro, JSC @ pages 58-59 of the E-Report.
The Petitioners/Appellants have made very heavy weather of the provisions of section 137 of the Electoral Act. Let me state unequivocally that despite the sui generis nature of election petition, section 137 of the Electoral Act does not and cannot relieve a Petitioner of the burden of proving his petition to the satisfaction of the Tribunal as required by law. That section does not also relieve a Petitioner of the duty of tying each piece or bundle of documentary evidence to specific aspect of his petition as made out in the pleading. All that the section connote is that instead of calling a host of witnesses to speak to each document tendered as was hitherto the case, a Petitioner can call a single witness or few witnesses to speak to all the documents tendered, if that is possible. But this can only be achieved if the single witness or few witnesses had, in their front-loaded written depositions, made reference to the document or documents and related it or them to the specific non-compliance alleged in the petition. Where that is not already done at the time of filing the petition, a documentary exhibit tendered from the Bar without specific evidence led in proof of its purport, is not worth the paper on which it was written. It still remains the law that documents do not speak for themselves, and I hold the view that section 137 of the Electoral Act has not abrogated the provisions of the Evidence Act to that effect. Even where the allegation of the Petitioner relates to non-compliance, the Petitioner must, through his evidence, expatiate on the nature of the non-compliance and its effect on the declared result of the election. A Petitioner cannot under the guise of section 137 of the Electoral Act dump documents on the Tribunal without more and expect the Tribunal to scrutinize them in the recess of its Chambers in order to decipher the non-compliance complained of. That is not the function of the Court. It will amount to descending into the arena of litigation for the Tribunal to condescend to that level with the attendant miscarriage of justice. I am not unmindful of the qualification for the application of section 137 of the Electoral Act, that the non-compliance must be manifestly disclosed on the face of the document. That notwithstanding, the Petitioner must, first of all, lead evidence of the alleged manifest non-compliance with the Electoral Act through its witness(es) before the Tribunal will look at the documents to see if the non-compliance is manifest thereon. But where no evidence is led, it will not be the duty of the Tribunal to scrutinize the documents for the Petitioner. Section 137 of the Electoral Act is not intended to transfer the age-long constitutional duty of a Claimant or Petitioner to prove his assertion by credible evidence, to the Court, as that will go against the letters and spirit of our Constitution and the rule of natural justice.
The albatross to the case of the Appellant before the Tribunal remains the competence of the about 30 witnesses left to testify for the Appellants at the Tribunal, most of whom were polling unit agents. One factor that run through evidence adduced by said witnesses is the issue of the BVAS machine, which is the device designed to specifically keep the record of accredited voters and other post-election data uploads in relation to any election conducted by 1st Respondent. The Supreme Court in Oyetola vs. INEC, supra, underscores the importance of BVAS machine thus:
The record of BVAS machine for each polling unit is the direct and primary record of the number of voters accredited in that polling unit on the election day in the process of the election.
The Appellants, in this regard, were expected to demonstrate before the Tribunal, by way of documentary evidence - the voters registers; the electoral forms, EC8A(1), EC8B, et, al and the contents of BVAS machines, or in their absence, the report of their contents as regards accreditation. This onus squarely rests on the Appellants who should do so on the balance of probability or preponderance of evidence, see: Fayemi v Oni (2010) 17 NWLR (Pt 1222) 326. Not even failure or refusal of the Respondents to adduce evidence in defence of their case will inure to the benefit of the Petitioners in an election petition. In this wise, I am in agreement with the trial Tribunal that reliefs in election petition, being declaratory, are not grantable even upon admission by the Respondents without credible evidence led in proof. I am persuaded too that the evidence elicited by the Respondents during cross examination suffices.
Still on the issue of BVAS and the dumping of documents without demonstrating to the Court the contents therein, I wish to observe that notwithstanding the coming into force of the Electoral Act, 2022, particularly section 137 thereof, the law on dumping of documents on Court without tying them to specific aspect of the case of the party dumping them, was still reiterated by the Apex Court in the recent case of Tumbido v INEC & Ors (2023) LPELR-60004 (SC) @ page 43, per Jauro, JSC, thus;
“The practice of dumping documents on the court without speaking to them has been deprecated by this court on numerous occasions. No court is entitled to conduct inquisitorial investigations into the contents of a document or purport thereof in its chambers.
The Appellants ought to have called a witness to speak to the photographs and video recording before the court.
See: Makinde V Adekola (2022) 9 NWLR (Pt 1834) 13; Maku v. Al Makura (2016) 5 NWLR (Pt 1505) 201
The Appellants herein were caught in the web of this anomaly, dumping of the BVAS on the Tribunal without a witness to speak to it or to present permitted substitute in the form of report of the contents of the BVAS. A Court is a citadel of justice in accordance with the applicable law, it is not bound by sentiment. There must always be a nexus between the documents lumped on the Court with the case of the party tendering it, if the party is to succeed.
One would ordinarily expect the Appellants to endeavor to avail the Tribunal with all the required documents pleaded by them, as for instance, at paragraph 61(aa) on page 33 of volume 1 of the Record of Appeal, the Appellants stated the BVAS reports as some of the documents to be relied upon in prove of their petition and their fruitless effort to obtain same, thus;
The petitioners applied for the certified true copy of the materials in the custody of the 1st Respondent, particularly the BVAS report but some were not given to the petitioners within the period of 21 days within which petitioners must file their petition. The petitioners' application for CTC are thereby pleaded and same shall be relied on during the hearing of this petition.
The foregoing, obviously, gave the Appellants out as been on a voyage into nothingness, they were all along aware of the existence of the BVAS reports, they really made effort to obtain it, but for the reason best known to them veered off the tangent, and came to gamble by “try their luck” in the Court of law. I am not persuaded by the Appellants’ story of been constrained. The concern of the Court is for the Appellants to produce credible evidence, and in the instant case on appeal the Appellants have failed. The constraints of the Appellants to procure the necessary and relevant evidence in proof of their petition at the trial Tribunal is not the concern of this Court. Even though I sympathized with the Appellants for their inability to obtain the relevant reports of the contents of the BVAS, the law on the duty of the Appellants to prove their petition with credible evidence remain sacrosanct. I am swayed by the position of the Respondents and the decision of the Tribunal that the Appellants failed to prove the allegations in their petition. I so hold. Accordingly, I resolve the sole reformulated issue in this appeal against the Appellants. In effect, the appeal is without merit and is hereby dismissed. The decision of the trial Tribunal, delivered on 4th September, 2023, is affirmed together with the consequential order made as to costs. I make no order as to cost.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Prof. J.O. Olatoke SAN, with Chief H.O. Afolabi, SAN, for the Appellants, leading K.O. Fagbemi, Esq., Omosanya Popoola, Esq., Lukman L. Akanbi, Esq., Bolaji Oyun, Esq., Khalil Ajana, Esq. and Joe Abrahams Jnr, Esq., for the Appellants.
Jacob Ifere Esq. with E.A. Itodo, Esq. and Loveth Bako for the 1st Respondent.
Mahmud Abubakar Magaji, SAN , with Okechukwu.G. Edeze, Esq., Efut Okoi, Esq.,Udzahu Medugu,Esq., Ede Uko, Esq.,Sorochi Hapiness Nnaji, Esq., Affis A. Matanmi, Esq., Olaniyi Anjorin, Esq., A.A Badmos, Esq., Godwin Awulu, Esq., Hauwa Sule Ibrahim, Esq., Chioma Okereke, Esq. and
Cyril Irorakpor Jnr, Esq. for the 2 Respondent.
Prof. Sylvester S. Shikyil, SAN, with M.J. Tula, Esq., Shipi Rabo, Esq., N.D Gwaison, Esq., Emmanuel Danjuma, Esq., M.Y. Danung, Esq. and S.V. Haruna Esq. for the 3rd Respondent.
