Abubakar Sadique Baba & Anor v. Independent National Electoral Commission (INEC) & Ors

The instant appeal is a fall-out of the judgment of the Court of Appeal, Jos Judicial Division, delivered on November 17, 2023 in appeal No. CA/J/EPT/BA/GOV/48/2023. By the judgment in question, the Court below coram: Uwa, Danjuma and Hassan, JJCA, dismissed the Appellants’ appeal and affirmed the judgment of the trial Governorship Election Tribunal holden at Bauchi, delivered on September 20, 2023 in petition No. EPT/BA/GOV/02/2023.

BACKGROUND FACTS
It is trite, that on March 18, 2023, governorship elections were held nationwide by the 1st Respondent. Most particularly, in Bauchi State, the Appellant had participated in the said election under the platform of the 2nd Appellant. The 2nd Respondent equally had the privilege of contesting the election under the platform of the 3rd Respondent. At the end of the election, the 2nd Respondent was declared and returned by the 1st Respondent as the winner with the accredited 525, 280 votes, while the Appellant scored a total 432, 272 votes.

Not unnaturally, the Appellant did not take kindly to the

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outcome of the election. Thus, on April 7, 2023, he deemed it expedient to institute the said petition at the Governorship Election Tribunal sitting at Bauchi, thereby challenging the return of the 2nd Respondent as the elected Governor of the State. The petition was predicated upon three grounds:
(i) The election of the 2nd Respondent was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.
(ii) The election of the 2nd Respondent was invalid by reason of corrupt practice;
(iii) The 2nd Respondent was not duly elected by majority of lawful votes cast at the election.

Whereupon, the Appellants jointly and severally sought various reliefs, viz:
(i) By the nature, threshold and spread of the established breach or non-compliance with Section 73(2) of the Electoral Act, 2022 committed by the 1st Respondent In the conduct of the challenged Bauchi State Governorship Election, the Court below was wrong to hold that same was not substantial to displace presumption of regularity of the election that affected the outcome of the election;
(ii) Lower Court improperly appraised applicability of Section 137 and

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Paragraph 46(4) of the 1st Schedule to the Electoral Act, 2022 as well as the evidence adduced by Appellants’ witnesses supported by unchallenged findings of facts by the trial Tribunal;
(iii) Having regard to the pleading, the nature of the complaint raised pertaining to breach of Section 73(2) of the Electoral Act, 2022 and evidence on record, Appellants successfully established and proved the allegations to be entitled to the reliefs sought;
(iv) The Court of Appeal was wrong to affirm the Tribunal’s decision in not according probative value to the evidence of Appellants’ witnesses and documents duly tendered.
(v) The Court below wrongly affirmed the decision of the Tribunal which treated documentary evidence tendered by the appellants as inadmissible and lacking in probative value; and
(vi) Having regard to the crucial effect of the breach of Section 73(2) of the Electoral Act, 2022 on the spread and quantum of votes in the challenged Local Government areas of Bauchi State, Appellants were entitled to the reliefs sought in their petition, including the right to be returned as winner of the election on account of the remainder of the valid

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votes at the election, having scored a majority of lawful votes cast.
IN THE ALTERNATIVE
(i) ………………………………………
(ii)
(iii)

Contrariwise, the Respondents filed their respective Replies to the petition. Pleadings having been filed and exchanged by the respective parties, the petition progressed to hearing. In an effort to prove their petition, the Appellants called a total of ten witnesses and tendered various documents, which were admitted in evidence and marked as exhibits.

The 1st and 3rd Respondents chose not to present any witness, albeit elicited evidence in aid of their case from the Appellants’ and 2nd Respondent’s witnesses under cross examination. Consequent upon the final addresses of the respective parties, the Tribunal proceeded to deliver its vexed judgment on the said 20/9/2023, to the conclusive effect:
We find no strong reasons to invalidate this election in dispute. The end of the discourse above is that issues three and four are resolved in favour of the Respondents. The resultant effect is that… We find no strong reasons to nullify this election and order for a fresh election since

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the election of 18/3/2023 was conducted in substantial compliance with the Electoral Act, 2023. The petition is hereby dismissed. Consequently, the returned (sic) of the 2nd Respondent Mohammed Bala Abdulkadir as the duly elected Governor of Bauchi State by the 1st Respondent on account of the Governorship election of l&h March, 2023 is hereby affirmed.
SIGNED
HON. JUSTICE P.T. KWAHAR
CHAIRMAN
20/9/2023
SIGNED
HON. JUSTICE T. Y. ABASI
MEMBER I
20/9/2023
HON. KADIA.S. YARIMA
MEMBER II
20/9/2023

Not unexpectedly, the Appellants opted to appeal against the Tribunal’s judgment to the Court below.

The Court below in its unanimous judgment, delivered on 17/11/2023, dismissed the appeal and affirmed the judgment of the Tribunal:
In the final analysis, all the issues formulated for determination of this appeal having been resolved against the Appellants and in favour of the Respondents, the Appeal lacks merit in its entirety and it is hereby dismissed.
The judgment of the Bauchi State Governorship Election Petition Tribunal delivered on the 20th September, 2023, coram: Hon. Justice P.T. Kwahar, Hon.

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Justice T.Y. Abasi and Hon. Kadi A.S. Yarima in PETITION NO. EPT/BA/GOV/02/2023 is hereby affirmed.
” The parties are to bear their respective costs”.

By the extant Notice of Appeal filed on 30/11/2023, predicated upon a total of 17 Grounds, the Appellants have urged upon this Court to allow the appeal and set aside the judgment of the Court below. A total of six issues have so far been distilled from the 17 Grounds of Appeal for determination, viz:
1. Whether the nature of established breach or non-compliance with Section 73(2) of the Electoral Act, 2022 committed by 1st Respondent in the conduct of the challenged Bauchi State Governorship Election, was correctly adjudged by the Court below as not being substantial to displace presumption of regularity of the election that affected the outcome of the election; and that failure to fill the prescribed form cannot be countenanced to invalidate the election? (Grounds 2, 9 and 10)
2. Whether the tower Court properly appraised the applicability of Section 137 and Paragraph 46(4) of the 1st Schedule to the Electoral Act, 2022 as well as the evidence adduced by Appellants’ witnesses supported by

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unchallenged findings of facts by the trial Tribunal, when it held that appellants did not plead the units affected by the breach of Section 73(2) of the Electoral Act, 2022 and failed to call necessary/relevant witnesses thereon? (Grounds 1, 3 and 13).
3. Whether having regard to the pleading and the nature of the complaint raised pertaining to breach of Section 73(2) of the Electoral Act, 2022, Appellants were obligated to call polling units agent(s) who never participated in the making of the polling units booklets as well as 1st Respondent (INEC’s officials) as witnesses to prove the breach complained of by the petitioners and to also plead and prove how the forms were to be filled? (Grounds 4, 5, 6, 7, and 8).
4. Whether the Court of Appeal was right to have affirmed the Tribunal’s decision in not according probative value to the evidence of petitioner’s witnesses, documents tendered on the basis that they were allegedly dumped on the Tribunal without demonstration and further that petitioners were unable to prove the non-compliance in the challenged polling units? (Grounds 11, 12, 14, 15 and 16).
5. Whether the Court below rightly affirmed

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the decision of the Tribunal which treated documentary evidence tendered by the Appellants as inadmissible and lacking in probative value? (Ground 17).
6. Whether having regard to the effect of the breach of Section 73(2) of the Electoral Act, 2022 on the spread and quantum of votes in the challenged local government area in that regard, Appellants were not entitled to the reliefs sought In their petition, including the right to be returned as winner of the election on account of the remainder of the valid votes at the election, having scored a majority of lawful votes cast? (Ground 18).

Contrariwise, the 1st Respondent’s brief settled by H.K. Raje (Mrs) on 18/12/2023, spans a total of 35 pages. At page 4 of the brief, the Appellants’ six issues have been adopted.

The 2nd Respondent’s brief was settled by Chief Chris Uche, SAN. At pages 6-7 thereof, three issues have been nominated for determination:
1. Whether in the light of the pleadings and the evidence led, the Court of Appeal was not right in holding that the Appellants failed to lead cogent and credible evidence to substantiate the allegation of non-compliance with provisions of

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Section 73(2) of the Electoral Act, 2022 relating to the filling of Electoral forms at polling units for the conduct of the election. (Distilled from Grounds 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 and 18 of the notice of appeal),
2. Whether the Court of Appeal was not right in affirming the decision of the Tribunal in not attaching any probative value to the documents dumped on the Tribunal by the appellants without calling competent witnesses to speak to them? (Distilled from Grounds 5, 14, 15, 16, and 17 of the Notice of appeal).
3. Whether the Court of Appeal was not right in holding that the comment of the Tribunal on the conscience of INEC was an Obiter Dictum and did not form part of the reasons for the Tribunal’s decision? (Distilled from Ground 13 of the Notice of Appeal).

The 3rd Respondent’s brief was settled by L.A. Haruna Esq. on 19/12/2023. At pages 6-7 thereof, five issues have been formulated:
ISSUE ONE
Whether the Lower Court was right when it found and held that the burden of proving the allegation that Forms EC25B, EC40A, EC40B and EC40C were not filled and/or improperly filled was on the appellants who asserted and who will lose

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if no evidence is adduced by all the parties. (Distilled from ground 1 of the Notice of appeal).
ISSUE TWO
Whether the Lower Court was right when it found and held that the polling units’ booklets and other documents tendered by the Appellants from the bar were dumped on the Trial Tribunal and therefore attracted no probative value. (Distilled from grounds 14, 15, and 16 of the Notice of Appeal).
ISSUE THREE
Whether the Lower Court was right when it found and held that the evidence ofPW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9 and PW10 who were not eyewitnesses were inadmissible in proving the allegations that the polling units booklets were not filled and/or were improperly Tilled and that the failure of the Appellants to call eyewitnesses for each polling unit to give evidence on the allegations was fatal to their Petition (Distilled from Grounds 5, 7, 8, 9 and 11 of the Notice of Appeal).
ISSUE FOUR
Whether the Court below was right, when it upheld the decision of the Trial Tribunal refusing to nullify the Bauchi State Governorship election held on the 18th of March, 2023, in the unspecified polling units of the Local Government

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Areas where the Appellants alleged that Forms EC25B, EC40A, EC40B, and EC40C were not filled and/or Improperly filled. (Distilled from Grounds 2, 3, 4, 6, 10f 12 and 13 of the Notice of Appeal).
ISSUE FIVE
Whether the Lower Court was right when it upheld the decision of the Trial Tribunal which is to the effect that the Appellants did not prove their allegation that it was the 1st Respondent in the Bauchi State Governorship election which held on 18/3/2023. (Distilled from Ground 18 of the Notice of Appeal).

Having critically, albeit dispassionately, considered the nature and circumstances surrounding the appeal, the eloquent submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal, I have deemed it expedient to adopt the Appellants’ six issues for the determination of the appeal, anon.

ISSUES 1, 2 & 3
The first issue raises the vexed question, mutatis- mutandis, of whether the Court below was right when it held that the nature of established breach or non-compliance with Section 73(2) of the Electoral Act, 2022 committed by the 1st Respondent in the conduct of the election

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was not substantial to displace the presumption of regularity and outcome of the election. The first issue is distilled from Grounds 2, 9 and 10 of the Notice of Appeal.

The second issue raises the question of whether the Court below properly appraised the applicability of Section 137 and Paragraph 46(4) of the 1st Schedule to the Electoral Act, 2022 and the evidence adduced by the Appellants witnesses supported by the unchallenged findings of facts by the trial Tribunal, to the effect that the Appellants did not plead the units affected by the breach of Section 73(2) of the Electoral Act 2022 and failed to call necessary relevant witnesses thereon. The issue 2 is predicated upon Grounds 1, 3 and 13 of the Notice of Appeal.

The third issue raises the question of whether having regard to the nature of the pleading pertaining to the alleged breach of Section 73(2) of the Electoral Act, 2022 the Appellants were obligated to call polling unit Agents who have participated in the making of the Polling Units Booklets, and the 1st Respondent’s officials as witnesses to prove the alleged breach in question. The issue 3 is distilled from Grounds 4, 5, 6 and 7

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of the Notice of Appeal.

The foregoing paraphrased issues 1, 2 and 3 have been canvassed together at pages 3-18 of the Appellants’ brief. In the main, the Appellants’ argument is to the effect that while the Tribunal found the alleged non-compliance (with Section 73(2) of the Electoral Act, 2022 proved but chose to minimize the impact on the overall consequence of the election, the Court below on its part regrettably toed the same line of error.

Under Section 73 of the Electoral Act, 2022 (supra), it’s provided:
(1) The forms to be used for the conduct of elections under this shall be determined by the Commission.
(2) An election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election shall be invalid.
(3) A presiding officer who intentionally announces or signs any election result in violation of Subsection (2) commits an offence and is liable of conviction to a fine of N10,000,000 or imprisonment for a

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term of at least one year or both.

Likewise, Section 137 of the Electoral Act, 2022 (supra) also provides:
It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.

On the other hand, Paragraph 46(4) of the First Schedule to the Electoral Act, 2022 equally provides:
Documentary Evidence shall be put in and may be read or taken as read by consent such documentary evidence shall be deemed demonstrated in open Court and the parties in the petition shall be entitled to address and urge argument on the content of the document and the Tribunal or Court shall scrutinise or investigate the content of the documents as part of the process of ascribing probative value to the documents or otherwise.

Contrary to the sweeping allegation of the Appellants, the Tribunal did not make a finding to the effect that the non- compliance with Section 73(2) of the Electoral Act, 2022 (supra) was proved by the Appellants. Contrariwise, the findings of the Tribunal regarding the issue

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are most unequivocal as duly confirmed by the records (pages 2130 to 2131 of the Record of Appeal):
No doubt, the filling of the forms outlined above by the Presiding officers is mandatory. There was, therefore, need to particularly cast enough evidence to prove that they were not filled and once this is achieved the Tribunal will have no option but to declare such election Invalid at the polling units so affected. We Indeed noticed some few blank spaces in some of the forms i.e. EC25 B, EC40A, EC40B, EC40C, however, petitioners were unable to show that this anomaly substantially affected the outcome of the election.. Be that as it may, we do not agree that failure to fill these forms or fill them improperly suffices as a ground capable to invalidate an election under Section 134 of the Electoral Act, 2022. Besides Exhibit P2 the manual for Election officials these forms are non-sensitive materials.

In the instant case, the Appellants’ pleadings regarding the alleged breach of Section 73(2) of the Electoral Act, 2022 could be located at paragraphs 54 and 55 of the petition:
(54) The petitioners state that in the polling units of the wards of

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Bauchi Local Government, Bogoro Local Government, Zaki Local Government, Warji Local Government, Toro Local Government and Ganjuwa Local Government Areas of Bauchi State, the 1st Respondent officials did not before and at the end of the election, properly fill in the polling units booklets containing Forms EC25B and EC8B(i).
(55) The 1st Respondent through its officials also failed to fill or properly Fill the Forms EC40A, EC40B and EC40G. These infractions occurred in all the polling units in the following Local Government Areas of Bauchi State, namely: Alkaleri, Tafawa Balewa, Toro, Warji, Zaki, Bauchi, Bogoro and Ningi Local Government Areas.

In the main, the Appellants’ allegation under paragraphs 54 and 55 of the petition is that the breach of improper or non-filling of the forms cut across seven (7) Local Government Areas of Bauchi State, viz: (i) Alkaleri LG A; (ii) Tafawa Balewa LGA; (iii) Toro LGA (iv) Warji LGA; (v) Zaki LGA; (vi) Bauchi LGA; and (vii) Bagoro LGA.

Unfortunately for the Appellants, paragraphs 54 and 55 are not clear as to the proper filling or non-filling of forms EC25DA, EC40DA, EC40B and EC40C. Indeed, the law is

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trite regarding the presumption of regularity of the said Forms. The Appellants, therefore, have the onerous duty to discharge the burden of proof placed thereupon. It is only when the Appellants discharge the burden of proving the irregularity or non-filling of the Forms, that the burden would then shift to the 1st Respondent.

What’s more, the Appellants’ allegation regarding paragraphs 54 and 55 of the petition are by and large contradictory. In that the 1st Respondent was alleged to have (i) failed to fill Forms EC40A; EC40B and EC40G; and that (ii) the 1st Respondent through its officials failed to properly fill the Forms EC40A, EC40B and EC40G.

The law is settled that contradictory and generalised averments as apparent in paragraphs 54 and 55 of the petition, cannot meet the fundamental requirement of the law on pleadings. See ASHIRU NOIBI VS. FIKOLATI (1987) 3 SC @ 119; (1987) 1NWLR (pt. 52) 619.
The elementary and rather fundamental principle of pleadings is that parties are to be bound by their pleadings. Thus, the main object of pleading is to reveal to the adverse party the very nature of the case at the earliest opportunity,

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he is probably required to be confronted with. See AMERICAN CYAN AMID CO. VS. VITALITY PHAMACEUTICALS LTD (1991) LPELR – 461 (SC) per Olatawura, JSC @ 21 paragraph G; Karibi-Whyte, JSC @ 31 paragraphs F-G.

It’s trite that in view of the nature of the case projected by the Appellants vis-a-vis Section 73(2) of the Electoral Act, 2022 (supra), the Appellants have an onerous duty to most especially plead each and every specific polling unit so challenged, and thereby lead credible documentary and oral evidence substantiating the allegation regarding the affected polling unit. It’s only after discharging this fundamental evidential burden of proof, that the trial Tribunal or Court would be obligated to invalidate the election in such a polling unit.
In the instant case, as aptly postulated by the 2nd Respondent, paragraphs 54 and 55 of the petition (supra) would reveal that not only were the allegations therein generalized, but not specific. Allegedly, there were a total of 2,425 polling units in all the seven (7) Local Government Areas in question. Ironically, however, none of them was specifically challenged. Rather, the Appellants deemed it expedient

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to make sweeping allegations, thereby urging upon the Court to invalidate the election in those Polling Units.
By virtue of the provisions of Paragraph 4(1)(d) of the First Schedule to the Electoral Act, 2022, a petitioner is requested to clearly state the facts of his petition. Essentially, the petitioner must demonstrate with clarity the complaints and reliefs sought, thus giving no room for vagueness and imprecision. See ATIKU VS. INEC, SC/CV/935/2023, delivered on 26/10/2013 where this Court held:
It follows therefore, that a petition must be detailed and comprehensive on material facts depending on the reliefs sought and not evasive or vague so as to elicit a response from the Respondents.

In the circumstances, I am amenable to the concurrent findings of the Court below, to the conclusive effect that the PW2, PW3, PW4, PW5, PW6, PW7, PW9 and PW10, not being polling unit agents were not competent witnesses to testify regarding whether or not the Forms inquestion were properly filled or not filled at all.

In the circumstances, the issues 1, 2 and 3 ought to be and same are hereby resolved against the Appellants.

ISSUE NO.4<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”></br<>

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The fourth issue, as copiously alluded to above, raises the very vexed question of whether or not, the Court below was right to have affirmed the Tribunal’s decision in not according probative value to the evidence of the Appellants’ witnesses’ documents that were dumped on the Tribunal, and Appellant’s being unable to prove the alleged non-compliance in the polling units challenged.

It is obvious on the face of the records that the Appellants’ allegation is limited apparently to the non-filling of the forms and improper filling of the Forms (paragraphs 54 and 55 of the petition). Regrettably, there’s no evidence on record establishing that these dual allegations were proved by the Appellants’ witnesses. Thus, not unexpectedly, the Court below in the concurring findings thereof came to the in-evitable conclusion that:
We indeed noticed some few blank spaces in some of the forms i.e EC25B, EC40A, EC40B, EC40C, however Petitioners were unable to show that this anomaly substantially affected the outcome of the election… Be that as it may, we do not agree that failure to fill these forms or fill them improperly suffices as a good ground capable to

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invalidate an election under Section 134 of the Electoral Act, 2022.
Besides Exhibit p2 the Manual for Election Officials 2023 describes these forms as non-sensitive materials.

In my considered view, the foregoing finding of the Court below is cogent, unassailable and duly supported by the pleadings and evidence on record.

In my considered view, notwithstanding the provisions of Section 137 of the Electoral Act, 2022 (supra) and Paragraph 46(4) of the First Schedule to the Electoral Act, 2022 (supra), the petitioner is obligated to demonstrate vide some cogent and unassailable oral evidence clearly demonstrating the alleged non-compliance. The petitioner must not sit on his oars merely predicating reliance upon the provisions of Section 137 of the Electoral Acts, 2022 (supra). Not long ago, this Court had the privilege of postulating on the point: ATIKU ABUBAKAR VS. INEC (2023) SC/CV/935/2023, wherein this Court aptly held:
Section 137 of the Electoral Act, 2022 relied upon by the Appellants for their failure to prove non-compliance in the manner we are used to provides:
“The” 137 it shall not be necessary for a party who alleges

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non-compliance with the conduct of election to call for ora! evidence if originals or certified true copies manifestly disclose the non-compliance.
The above provision has not absolved a petitioner of the need to lead credible evidence to prove non-compliance. It states clearly that oral evidence may not be necessary. If and only if original or certified true copies manifestly disclose case, the Appellants have not or certified true copies of the non-compliance. In this demonstrated the originals documents they want the Court to rely on. Given where such documents are tendered in evidence, it has to be shown that they manifestly disclose the non-compliance.
In my considered view, the foregoing proposition of the law regarding Section 137 of the Electoral Act, 2022 (supra) unassailably represents the position of the apex Court on the point. It’s not controversial at all, that the provision of Section 137 of the Electoral Act, 2022 was drafted in clear, simple and unambiguous words. Thus, it behooves the Court to accord a liberally literal interpretation thereto; by giving the words their natural, ordinary and literal meanings, devoid of any

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embellishment. See FBN PLC VS. MAIWADA (2013) 6 NWLR (pt. 1348) 444; KASSIM VS. ADESEMOWO (2021) 18 NWLR (pt. 1807) 67; AGUMA VS. APC (2021) 14 NWLR (pt. 1796) 351.
However, it ought to be reiterated for the avoidance of any lingering doubt, that the provision of Section 137 of the Electoral Act, 2022 (supra) is only applicable where the alleged non- compliance with the law is manifest from the originals or certified true copies of the documents relied upon. See OYETOLA VS. INEC (2023) LPELR – 60392 (SC), wherein this Court aptly held:
It is indubitable that Section 137 of the Electoral Act, 2022 only applied where the non-compliance is manifest, from the originals or certified true copies of documents relied on. In the instant case, neither Exhibit BVR nor any other document relied on by the Appellants remotely disclosed non-compliance with the Provisions of the Electoral Act. Hence, the Section cannot be of any assistance to them. In the circumstance, they still had a duty to call witnesses who witnessed the alleged acts of non-compliance to testify.
See also ATIKU VS. INEC (2023), supra.

In the instant case, its undeniably obvious as

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aptly posited by the 2nd Respondent, that the documents sought to be relied upon are unsigned thus cannot, by any stretch of imagination, be accorded probative value merely for being certified true copies. Therefore, the Court below was absolutely correct in upholding the decision of the trial Tribunal thereby declining to accord any probative value to the unsigned documents in question. This is absolutely in accordance with well settled principle of law, that an unsigned document is not worthy of being accorded any probative value. As aptly reiterated by this Court in MAKU VS. AL-MAKURA (2016) LPELR-48123 (SC):
It is now trite law that an unsigned document is a worthless document in that it has no evidential value. It does not matter whether the document in question was tendered by an alleged maker The maker who allegedly mark a document must sign it for It to be examined by a Court of law. Where a document tendered in evidence as primary evidence is not signed, it cannot be relied upon. Where it is tendered as secondary evidence, it must be certified as such by the maker of the original or the person who has custody of the original.
…It is my

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considered view that Exhibit P20 not being a signed document by no weight what so ever… Omega Bank (Nig) PLC. V. OBC Ltd (2005) ALL FWLR (pt. 219) 1964 @ 1993 – 1994, (2005) o NWLR (pt. 928) 547…
The law being as above stated, it refollows that the lower Courts are right in their conclusions the reached in respect of the said Exhibit P20.

In the circumstances, the issue 4 ought to be, and same is hereby resolved against the Appellants.

ISSUE NO.5
The fifth issue raises the vexed question of whether the Court below rightly affirmed the decision of the Tribunal which treated documentary evidence by the Appellants as inadmissible and lacking in probative value. The issue 7 is distilled from Ground 17 of the Notice of Appeal.

The gravamen of the Appellants’ grouse under the fifth issue, is that both the Courts below were wrong in failing to accord any probative value to the unsigned documents admitted as exhibits. The reason being, that the said exhibits were certified true copies (CTC) documents, and therefore admissible in law.

In the instant case, the documents in question were those admitted at the trial as Exhibits GGG1-GGG8.

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The position of the law regarding an unsigned document is not far-fetched. Indeed, the law is settled that an unsigned document lacks any probative value, it’s worthless, thus cannot be relied upon to be the basis of any decision by the Court. See APC VS. SHERIFF (2023) LPELR- 59953 (SC); CONOIL VS. VITOL S. A. (2018) 9 NWLR (pt. 1625) 463 @ 922 paragraph B; ALI VS THE STATE (2021) 12NWLR (pt. 1789) 159 @ 189 paragraph F.

The fact that evidence, whether oral or documentary, is admitted in evidence does not necessarily and automatically entitle the trial Court to accord it any probative value. Thus, the weight to be ascribed to an admissible document depends entirely on the facts and circumstances of every given case. See NATSAHA VS. THE STATE(2017) LPELR-42359 (SC); BLESSING VS. FRN (2013) LPELR-23002 (SC); ATUMA VS. APC (2023) LPELR- 60352 (SC) @ 43 paragraph B.

In the circumstances, issue 5 ought to be and same is hereby resolved against the Appellants.

ISSUE NO.6
The sixth issue raises the question of whether in view of the effect of the breach of Section 73(2) of the Electoral Act, 2022 (supra) on the spread and quantum of votes

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in the challenged Local Government Area, the Appellants were not entitled to the reliefs sought in their petition, including the right to be returned as winner of the election on account of the remainder of the valid votes, having scored a majority of lawful votes cast at the said election. The issue 6 is distilled from Ground 18 of the Notice of Appeal.

The Appellants in the course of the submission thereof (paragraphs 4.109-4.124 of the Appellants brief) deemed it expedient to adopt their submissions on issues 1, 2, 3, 4 and 5, in canvassing that they obtained the majority of the lawful votes cast at the said election.

Interestingly, the immutable proverb and nursery rhyme – “if wishes were horses, beggars would ride”, was first documented in 1628 in a collection of Scottish Proverbs (Roud Folk Song Index No.20004). The proverb simply denotes that “if wishing could make things happen, then the most destitute people would have everything they wanted.” See WIKEPEDIA.

Contrary to the Appellants’ proposition under the issue, that the 1st Appellant ought to have been returned as winner having scored the majority votes cast at the said Governorship

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election, is tantamount to a sheer wishful thinking, for some obvious reasons.

It’s a trite fundamental doctrine that the petitioner in an election petition, such as in the instant case, shoulders the burden of proving with every credible and unassailable evidence the grounds of the petition. Thus, the reliefs sought in an election petition, being declaratory in nature the petitioner must succeed on the strength of his case, and not necessarily on the weakness of the defence. See KODILINYE VS. MBANEFO ODU (1935) 2 WACA 226; UDEGBE VS. NWOKAFOR (1963) 1 All NLR 418; ASHIRU VS. OLUKOYA (2006) SC. 356/2001.
However, there’s an exception to the general rule. It was aptly held by this Court in PIARO VS. TENALO (1976) 10 NSCC 700:
A plaintiff is however, entitled to take advantage of any evidence adduced by the defence which tends to establish his title and support his case vide Josiah Akinola Vs, Fatoyinbo Oluwo (1962) 1 ALL NLR224 at 225.
Per Obaseki, JSC.
Likewise, in ODI VS. IYALA (2004) 8 NWLR (pt. 875) 283, this Court aptly reiterated the trite fundamental doctrine:
This general rule is subject to the important qualification that if

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the Defendants’ case supports that of the plaintiff and contains evidence which the plaintiff may rely on, the plaintiff is fully entitled to make use of such evidence. See too Okafor Vs. Idigo 15 NSCC 360/SC NLR 481; Frempong Vs. Brempong (1952) 14 WACA 13; Akinola Vs. Oluwo (1962) 1 All NLR (pt. 2) 224 at 225; (1962) 1 SCNLR 352.
Per Iguh, JSC @ 315.

As aptly postulated by the 1st Respondent, the Appellants’ brief of argument is riddled with assertions devoid of evidentiary backing. Indeed, the law is fundamentally settled, that the submission of learned Counsel no matter how brilliant, eloquent, or persuasive cannot supplant factual proof. See OMISORE VS. AREGBESOLA (2015) LPELR-24803 (SC) @ 108 paragraph B; ANGADI VS. PDP (2018) LPELR – 44375 (SC) @ 5 PARAGRAPH B.

it ought to be reiterated, that pleadings must contain facts, and facts only. And the facts must equally be material facts. In essence, it is for the plaintiff (or petitioner as in the instant case to plead sufficient material facts so that the defendant should know the case he would face at the trial. It’s then up to the Defendant to either admit outrightly, or traverse those facts.

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Thus, facts not pleaded go to no issue. And because parties are bound by their respective pleadings, any evidence received upon unpleaded facts must be expunged from the record by the trial Court. See RANSOME-KUTI VS. AG FEDERATION (1985) 2 NWLR (pt. 6) 211; AJIDE VS. KELANI (1985) 3 NWLR (pt. 12) 248 paragraphs A-G; ANAMBRA STATE VS. ONUSELOGU (1987) 4 NWLR (pt. 66) 547 @ 548, 550; MOROHUNFOLA VS. KWARA STATE COLLEGE OF TECHNOLOGY (1990) LPELR – 1912 (SC) per Belgore, JSC (as then was) @ 11-12 paragraphs D- A.

In the circumstances, the issue 6 ought to be, and same is hereby equally resolved against the Appellants.

Hence, having effectively resolved all the six issues nominated by the Appellants against them, the appeal resultantly becomes entirely devoid of merits.

Consequently, the appeal is hereby dismissed for being devoid of merits. The judgment of the Court of Appeal, Jos Judicial Division, delivered on 17/11/2023 in Appeal No. CA/3/EPT/BA/48/2023, is hereby affirmed.

Appeal Dismissed.