Jibrin Muhammad Barde & Anor v. Independent National Electoral Commission (INEC) & Ors

The 1st respondent herein conducted an election on 18th March 2023 into the office of Governor of Gombe State. The 1st appellant herein contested on the platform of the 2nd Appellant, Peoples Democratic Party (PDP), while the 3rd respondent contested on the platform of the 2nd respondent, All Progressives Congress (APC). At the conclusion of the election the 3rd respondent was declared the winner with a total of 342,821 votes against 233,131 votes scored by the 1st appellant. The 3rd respondent was accordingly returned as the Governor of Gombe State.

The appellants were dissatisfied with the declaration and return of the 3rd respondent and consequently filed a petition before the Governorship Election Tribunal sitting in Gombe on 6th April 2023. The grounds of the petition were as follows:
a) That the 2nd respondent [now 3rd respondent] was, at the time of the election, not qualified to contest the election.
b) The election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.
c) The

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respondent was not duly elected by the majority of lawful votes cast at the election.

The petitioners accompanied their petition with a list of witnesses, their depositions on oath and list of documents to be relied upon at the trial. The respondents filed their respective replies. At the conclusion of pleadings and other preliminary matters, the petition proceeded to hearing. In a considered judgment delivered on 26th September, 2023, the Tribunal found no merit in the petition and dismissed same.

The appellants were dissatisfied with the judgment and appealed to the lower Court vide a Notice of Appeal filed on 9/10/2023. The Court of Appeal unanimously dismissed the appeal. The appellants are still dissatisfied and have further appealed to this Court vide their Notice of Appeal filed on 5/12/2023 containing 8 grounds of appeal.

At the hearing of the appeal, AHMED RAJI, SAN, adopted and relied on the appellants’ brief settled by CHARLES MUSA ESQ. and replies to the respective briefs of the 1st, 2nd, and 3rd respondents in urging the Court to allow the appeal. He sought to withdraw Ground 4 of the Notice of Appeal and Issue 3 predicated thereon

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having taken due notice of the position of this Court on the incompetence of a subpoenaed witness whose statement on oath did not accompany the petition or reply of a party as espoused in SC/CV/935/2023: Abubakar Atiku Vs INEC; SC/CV/937/2023: Peter Gregory Obi Vs INEC both delivered on 26/10/2023 and SC/CV/1130/2023: Edeoga Chijioke Jonathan Vs INEC delivered on 22/12/2023. Ground 4 and the said Issue 3 are accordingly struck out. OMOTAYO OLATUBOSUN ESQ. adopted and relied on 1st respondent’s brief in urging the Court to dismiss the appeal. In view of the withdrawal of the appellant’s issue 3, he withdrew issue 3 argued at pages 18 – 27 paragraph 4.3 of his brief. The said issue is accordingly struck out.

ADEBAYO BADMUS ESQ. adopted and relied on 2nd respondent’s brief in urging the Court to dismiss the appeal.
His Issue 3 argued at pages 18-22 thereof is also withdrawn and struck out.

DR. MUIZ BANIRE, SAN, adopted and relied on the 3rd respondent’s brief in urging the dismissal of the appeal and similarly withdrew his Issue 1 argued at pages 5-10 thereof. The said issue is accordingly struck out.

The 4 remaining issues formulated by the

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appellant are as follows:
1) Whether the Court below rightly concurred with the trial Tribunal that Ground A of the Appellants’ petition was a pre-election matter, amounted to abuse of Court process and liable to be struck out. (Grounds 1 and 2),
2) Whether the Court below was right when it endorsed the finding and conclusion of the trial Tribunal that paragraphs 33 – 35, 39 – 41, 46 – 45 and 72 – 113 of the Appellants’ reply to the 2nd respondent’s reply and paragraphs 33,34, 39- 41, 46-114 of the Appellants’ reply to the 3rd respondent’s reply to the Petition contravened Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, rendering them liable to be struck out. (Ground3).
3) Whether the Court below was right when it aligned with the finding of the trial Tribunal that the Appellants’ documents at the trial were dumped without identification, relating to specific areas and demonstration thus rendering them worthless and of no probative value. (Ground 5).
4) Whether the Court below rightly agreed with the trial Tribunal that the Appellants did not prove their case to be entitled to the reliefs sought in the Petition. (Grounds 6

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and 7).

The 1st respondent is left with 3 issues thus:
i. Whether the lower Court was right when it affirmed the Tribunal decision striking out paragraphs 33-35, 39-41, 46-114 of the petitioners’ Reply to the 2nd respondent’s Reply and paragraphs 33, 34, 39-41, 46-114 of the Petitioners’ Reply to the 3rd Respondent’s Reply for having introduced new facts/issues in contravention of Paragraph 16(1) of the First Schedule to the Electoral Act 2022. (Ground 3)
ii. Whether the lower Court was right when it affirmed the Tribunal decision striking out paragraphs 33-35, 39-41, 46-114 of the Petitioners’ Reply to the 2nd respondent’s Reply and paragraphs 33, 34, 39-41, 46-114 of the Petitioners’ Reply to the 3rd Respondent’s Reply for having introduced new facts/issues in contravention of Paragraph 16(1) of the First Schedule to the Electoral Act 2022. (Ground 3)
iii. Whether the lower Court was right when it affirmed the decision of the Tribunal that the Appellants did not discharge the burden of proof imposed on them by the law for the surviving grounds B and C of the Petition to succeed? (Grounds 5, 6 and 7).

The 2nd respondent

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identified A issues as follows:
1) Whether the lower Court was right to have affirmed the decision of the Tribunal which struck out Ground A of the Petition and the related facts in paragraphs 20-29 of the Petition. (Grounds 1 and 2).
2) Whether the lower Court was right to have affirmed the decision of the tribunal which struck out paragraphs 33-35, 39 -41, 46 – 52 and 72-113 of the Petitioners’ Reply to the 2nd Respondent’s Reply and paragraph 33, 34, 39-41, 46-114 of the Petitioners’ Reply to the 3rd Respondent’s Reply for having introduced new facts/issues in contravention of Paragraph 16(1) of the First Schedule to the Electoral Act 2022. (Ground 3).
3) Whether the lower Court was right in affirming the decision of the tribunal that the Appellants’ document (Exhibits PVR series, Voters Register, Forms EC8As, Forms EC8Bs, Form EC8Cs etc) were dumped on the Tribunal. (Ground 5)
4) Whether the lower Court was right in affirming the decision of the Tribunal that the Appellants did not discharge the burden of proving non-compliance with the provisions of the Electoral Act and that the 3rd Respondent was not duly elected by majority of

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lawful votes cast at the election. (Grounds 6 and 7).

The 3rd respondent is also left with 4 issues, to wit:
i. Whether the lower Court was right when it affirmed the decision of the Tribunal that the Appellants did not discharge the burden of proving non-compliance with the provisions of the Electoral Act and the 3rd Respondent was not duly elected by majority of lawful votes cast at the election. (Grounds 6 and 7)
ii. Whether the lower Court was right to have affirmed the decision of the Tribunal which struck out paragraphs 33-35, 39-41, 46-52 and 72-113 of the Petitioners’ Reply to the 2nd Respondent’s Reply and paragraphs 33, 34, 39-41, 46-114 of the Petitioners’ Reply to the 3rd Respondent’s Reply for having introduced new facts/issues in contravention of Paragraph 16(1) of the First Schedule to the Electoral Act 2022. (Ground 3)
iii. Whether the lower Court was right to have affirmed the decision of the Tribunal which struck out Ground A of the Petition and the related facts in paragraphs 20-29 of the Petition. (Grounds 1 and 2)
iv. Whether the lower Court was right in affirming the decision of the Tribunal that the Appellants’

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document (Exhibits PVR series, Voters Register, Forms EC8As, Forms EC8Bs, Forms EC8Cs etc.) were dumped on the Tribunal. (Ground 5).

I adopt the appellants’ issues in the resolution of the appeal.

Issue 1
Whether the Court below rightly held that Ground A of the Appellants’ petition was a pre-election matter, amounted to abuse of Court process and liable to be struck out
In support of this issue, learned senior counsel for the appellants argued that Ground A of the petition was a challenge of the qualification of the 3rd respondent to contest for the office of Governor of Gombe State on the basis that he presented a forged certificate to the 1st respondent contrary to Section 182 (1) (j) of the 1999 Constitution, as amended, which is a mandatory ground for disqualification. He referred to Section 134(1) (a) of the Electoral Act, 2022 and paragraphs 113 – 115 of the petition. He contended that the allegation that the 3rd respondent provided false information in his INEC Form EC9 in respect of his work history with Bauchi State Investment Co. Ltd. and A.Y.U. & Co. Ltd is tantamount to the presentation of a forged certificate.

Learned

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senior counsel submitted, relying on Sections 29(5) and 29(6) of the Electoral Act, 2022, that qualification/disqualification to contest are both pre- and post-election matters. He submitted that the word “Court” in Section 29(6) of the Act should be read to mean Election Petition Tribunal. Reference was also made to Section 134(3) of the Act. It was contended that Ground A does not fall within the definition of pre-election matters in Section 285(14) (a) of the Constitution.

On the issue of abuse of Court’s process, learned senior counsel argued that the suits that commenced at the Federal High Court and terminated at the Supreme Court challenging the qualification of the respondent, were never determined on their merit.

On the meaning of ”certificate” in Section 182(1) (j) of the Constitution, reliance was placed on the case of P.D.P. Vs Degi-Eremienyo & Ors. (2020) LPELR – 49734 (SC); Modibbo Vs Usman & Ors, (2019) LPELR – 59096 (SC). It was submitted that the lower Court was wrong when it held that there was no pleading to the effect that a false certificate was presented. In paragraph 4.19 of his brief, learned senior counsel expatiated

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on the meaning of certificate. He submitted that if any fact vouched to be true, in an affidavit in support of personal particulars, such as Form EC9, turns out to be false, the effect is that the 3rd respondent presented a forged certificate to the 1st respondent. Several authorities were cited on what constitutes forgery. At paragraph 4.27 of the brief, the documents and testimonies of witnesses considered to be relevant to this issue were set out.

In response, learned counsel for the 1st respondent submitted that this Court has held severally that the matter of false information given in Form EC9, is a pre-election matter. He referred to: APM Vs INEC (2022) 13 NWLR (Pt. 1846) 159 @ 181 F – H, which in turn followed the decision of this Court in Atiku Abubakar Vs INEC (2020) 12 NWLR (Pt, 1737) 37. He also relied on Sections 29(5) & (6) of the Electoral Act, 2022, and submitted that it is clear that matters relating to the correctness of information given in Form EC9 is a pre-election matter. He observed that in relying on the decision of this Court in PDP Vs Degi-Eremienyo (supra), learned senior counsel failed to avert his mind to the fact that the

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said case was pre-election matter. He also referred to Akinlade Vs INEC (2020) 17 NWLR (Pt. 1754) 439 @ 465 – 466 H – D, per Eko, JSC. He urged the Court to hold that the decision in APM Vs INEC (supra) is the current position of the law on the issue.

On the issue of abuse of Court process, learned counsel submitted that the lower Court was right in its finding that notwithstanding the fact that the 1st appellant’s running mate (2nd appellant’s candidate for deputy governorship position) was not a party to the petition, by operation of law, the interests of a gubernatorial candidate and his running mate are inseparable, and he is therefore privy to the petition filed by the gubernatorial candidate.

Learned counsel for the 2nd respondent is of the opinion that having litigated the issue of disqualification as a preelection issue before the Federal High Court up to the Supreme Court, the appellants cannot approbate and reprobate, particularly as the appeal before the Supreme Court was still pending at the time the petition was filed. The case of Ukachukwu Vs PDP (2014) 4 NWLR (Pt, 1396) 65 @ 81 F – H, was referred to. He submitted that even if the

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appeal before the Supreme Court had been withdrawn before the filing of the petition, the resultant effect is that the judgment of the Court of Appeal on the issue would constitute res judicata.

On the issue of pre- and post-election matters, learned counsel also relied on the authority of Abubakar Vs INEC. (supra) to support the contention that an allegation of supplying false information in Form EC9 is a pre-election matter. He also referred to Section 134(1) of the Electoral Act, 2022 to the effect that for a complaint of disqualification to constitute a post-election matter, it must be strictly confined to the provisions of Section 177 and 182(1) of the Constitution. He submitted that work history is outside the parameter. He submitted that Section 29(6) of the Electoral Act cannot be interpreted in isolation, as it is a continuation of Section 29(5) of the Act. At paragraphs 3.23 – 3.28 at pages 13 – 14 of his brief, learned counsel argued on the merit of the said Ground A and urged the Court to hold that the allegation of false statement was not proved.

Leaned senior counsel for the 3rd respondent argued this issue as his issue 3. He argued in

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similar vein to the 1st and 2nd respondents. He submitted that not only was the case of PDP Vs Degi- Eremienyo (supra) a pre-election matter filed at the Federal High Court, the said decision has been overtaken by recent decisions of this Court in Dantiye Vs APC (2021) 18 NWLR (Pt. 1808) 381 and APC Vs Elebeke (2022) 10 NWLR (Pt. 1837) 1 @ 32 – 33 A – H.

Resolution of Issue 1
Ground A of the appellants’ petition before the trial Tribunal reads thus:
“The 3rd respondent was at the time of the election not qualified to contest the election.”
The facts in support of the ground are contained in paragraphs 20-29 at pages 113-114 of vol.1 of the record in particular, it is averred in paragraphs 24-29 of the petition that the 3rd respondent made false entries in his Form EC9 in respect of his work history at Bauchi State Investment Co. and A.Y.U & Co. Ltd. The complaint is as regards alleged inconsistencies in the dates stated therein when compared to the information, he supplied in his INEC Form CF001 submitted for the 2015 General Election and Form CF001 submitted to the 1st respondent for 2019 General Election. The said Form CF001 is the

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equivalent of the present Form EC9.

The first issue to consider is whether the complaint in Ground A is a pre- or post-election matter.

Section 29(5) and (6) of the Electoral Act, 2020 provide:
“29(5) Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidates in the affidavit or any document submitted by that candidate in relation to his constitutional requirement to contest the election is false, may file a suit at the Federal High Court, against the candidate seeking a declaration that the information contained in the affidavit is false,
(6) Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidates and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfied the constitutional requirements as the winner of the election”
Section 29(1) and (2) of the Act is also relevant. It provides:
“29(1) Every

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political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the commission, in the prescribed Forms, the list of candidates the Party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.
(2) The list of information submitted by each candidate shall be accompanied by an affidavit sworn to by the candidate at the Federal High Court, High Court of a State or Federal Capital Territory, indicating that he or she had fulfilled all the constitutional requirements into that office.”
Section 182(1) (j) of the Constitution provides:
“182(1) No person shall be qualified for election to the office of Governor of a state if –
(j) he has presented a forged certificate to the Independent National Electoral Commission.”
Before considering the authorities of this Court on the matter, it is necessary to restate the position of the law with regard to statutory interpretation. The Courts are always admonished to consider the provisions of a statute as a whole and not piecemeal in order to ascertain its meaning. Where the construction

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of a section is in issue all its sub sections and sub-paragraphs must be read together as they are complimentary to and explain the meaning and scope of the main section or paragraph. See:Mobil Oil (Nig) Plc Vs IAL 36 INC (2000) LPELR – 1883 (SC) @ 24 B – F; Nwobike Vs F. R. N. (2021) LPELR – 56670 (SC) @ 84 A – F; Bello & Ors. Vs A.G Oyo State (1986) LPELR – 764 (SC) @71 D – E; (1986) 5 NWLR (Pt-45) 828.
It is quite evident that Section 29 of the Electoral Act, 2022 relates to pre-election matters concerning, primary election of political parties. It is clear, as rightly submitted by learned counsel for the 2nd respondent, that Section 29(6) follows on from Section 29(5), which permits an aspirant to complain about false information provided by a candidate in his affidavit of particulars. Sub-paragraphs (5) and (6) cannot be split into pre- and post-election matters.
Furthermore, the word “Court” used in sub-section (6) cannot be interpreted to mean Tribunal, as urged on behalf of the appellants, as sub-section (5) states clearly that the suit shall be filed at the Federal High Court.
A full panel of this Court in APM Vs INEC (2022) 13

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NWLR (Pt. 1846) 159 @ 181 -182 per Ogunwumiju, JSC affirmed our earlier decision in Atiku Abubakar Vs INEC (2020) 12 NWLR (Pt.1727) 37 to the effect that disqualification of a candidate on grounds of false information contained in his form CF001 or EC9 is a pre-election matter. We are bound by this decision. An alleged false statement as to the candidate’s work history does not fall within Section 182(1) (j) of the Constitution to warrant the disqualification of a candidate on that ground.
Furthermore, as observed by the respective respondents’ counsel, this same issue raised in Ground A of the petition was pursued from the Federal High Court all the way to the Supreme Court as a pre-election matter. I refer to the ruling of the Federal High Court at pages 12653- 12666 vol. 23 of the record, particularly at page 12665, where the learned trial Judge observed thus:
“I have taken the time to produce the sections of the Constitution and the Electoral Act because I had asked plaintiff/Respondent whether his case is a pre-election matter or a post-election and counsel had affirmed that his case is a pre-election matter.
Consequent upon which, I shall

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treat this case as a pre-election matter.”
The ruling was delivered on 24/1/2023. Treating it as a pre-election matter, the appellants hastily filed their Notice of Appeal against the ruling on 26/1/2023, conscious of the provisions of Section 285(11) of the 1999 Constitution, as amended, which requires an appeal from a decision in a pre-election matter to be filed within 14 days from the date of delivery of the judgment appealed against.
Again, at page 12861 of the record, the lower Court reproduced the issues formulated by the appellants. Issue 1 states inter alia:
“Whether from the nature of this case being a pre-election matter, the trial Court was not under an obligation, after determining the notice of preliminary objection to proceed also to determine the substantive suit on the merit… ”
The appellants must be consistent in the presentation of their case and are estopped from approbating and reprobating. See: Ajide Vs Kelani (1985) LPELR – 302 (SC) @ 35 E – G; Jegede & Anor, Vs INEC (2021) LPELR – 55481 (SC) @ 30 A – B; Asaboro & Anor. Vs Pan Ocean Oil Corporation (Nig) Ltd, & Anor, (2017) LPELR – 41558 (SC) @ 11 A –

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C.
The Court below was therefore right when it held that the appellants’ Ground A was a pre-election matter in respect of which it lacked jurisdiction.

In addition, I agree with the Court below that the said ground A constitutes an abuse of the Court’s process having regard to the fact that the complaint therein was already the subject of litigation in a pre-election matter pending before this Court.
The appellants’ notice of appeal before the Supreme Court arising from the pre-election matter in Appeal No. CA/ABJ/CV/109/2023 was filed on 7/3/23. The appellants’ petition before the trial Tribunal was filed on 6/4/2023, while the purported notice of withdrawal of the appeal before the Supreme Court was filed on 15/5/23, 39 days after the filing of the petition. It is therefore manifest from the record that at the time the petition was filed containing Ground A, there was an appeal pending before this Court on the same issue arising from a pre-election matter. There is no doubt whatsoever that the filing of the petition seeking the disqualification of the 1st respondent during the pendency of Appeal No. SC/CV/431/2023 on the same subject matter

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amounted to an abuse of the Court’s process. See; Ukachukwu Vs PDP (2013) LPELR – 21894 (SC) @ 19 – 20 D – A, where His Lordship Onnoghen, JSC (later CJN) held inter alia:
“To institute an action during the pendency of another one claiming the same reliefs amounts to an abuse of Court process and it does not matter whether the matter is an appeal or not as long as the previous action has not been fully disposed of It is the subsequent action that is an abuse of the process of the Court.”
I have given a careful consideration to the findings of the lower Court at pages 14056-14069 of Volume 25 of the record which encapsulate the observations I have made hitherto. The reasoning of the Court is sound and has not been shown to be perverse. I am not satisfied that the appellants have demonstrated to this Court that there are any special circumstances warranting interference therewith.
In the circumstances, I hold that the lower Court was right to have affirmed the decision of the trial Tribunal striking out Ground A of the petition and paragraphs 20 – 29 predicated thereon. Issue 1 is accordingly resolved against the appellants.

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Issue 2
Whether the Court below was right when it endorsed the finding and conclusion of the trial Tribunal that paragraphs 33 – 35, 39 – 41, 46 – 45 and 72 – 113 of the Appellants’ reply to the 2nd respondent’s reply and paragraphs 33,34, 39- 41, 46 – 114 of the Appellants’ reply to the 3rd respondent’s reply to the Petition contravened Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, rendering them liable to be struck out.
In support of this issue, learned senior counsel for the appellants submitted that contrary to the finding of the Court of Appeal and the trial Tribunal, the affected paragraphs of their replies to the 2nd and 3rd respondents’ replies did not contravene Paragraph 16 of the First Schedule to the Electoral Act, 2022, as the 2nd & 3rd respondents; in their replies to the petition had introduced new facts, including objection to votes in identified polling units in a number of Local Government Areas including the issue of the appeal pending before the Supreme Court. He made reference to various pages of the record where the pleadings of the respective parties can be found.

Relying on the authorities of PDP Vs INEC

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(2022) 18 NWLR (Pt. 1863) 653 @ 686 – 687 G – A, Sylva Vs INEC (2018) 18 NWLR (Pt, 1651) 310 @ 352 F – H & Ogboru Vs Okowa (2016) 11 NWLR (Pt, 1522) 84 @ 113 – 114 F – H, it was submitted by learned counsel for the respective respondents that the finding of the lower Court on this issue cannot be faulted, having regard to the purport of Paragraph 16(1) of the First Schedule to the Electoral Act construed and applied in the said authorities.

Resolution of Issue 2
The provisions of Paragraph 16(1) of the First Schedule to the Electoral Act are clear and unambiguous. They provide thus:
“16(1) If a person in his reply to the petition raises new issues of facts in defence of his case which the petition has not dealt with, the petitioners shall be entitled to file in the Registry, within five days from the receipt of the respondent’s reply, a petitioner’s reply in answer to the new issues of fact, so that-
(a) the petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the content of the petition filed by him; and
(b) the petitioner’s reply does not run counter to the

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provisions of paragraph 14(i).”
In the case of Ogboru Vs Okowa (2016) 11 NWLR (Pt, 1522) 84 @ 113 – 114 G – E, this Court, in elucidating the purport of Paragraph 16(1) of the First Schedule to the Electoral Act 2010, as amended, which is in pari materia with Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, held after reproducing the provisions as follows:
“By the foregoing, the appellants as petitioners are not entitled to set up in their reply to the respondents’ replies to their petition, either a new cause of action, ground or new facts outside or inconsistent with their petition. Thus, their reply must not depart or contradict their petition and where it does, the tribunal will be justified on an application to strike out their reply in which the defect has occurred. In APC Vs PDP (supra) [(2015) 15 NWLR (Pt 1481) 1] a case counsel on both sides alluded to, this Court restated the principle thus: –
“…The appellant did not have the lee-way to aver new facts which ought to be in the original petition.
…The Court below was right in affirming the striking out of the said paragraph 13 which tried to overreach the 2nd

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respondent as no new facts should feature in a petitioner’s reply. See: Adepoju vs Awoduyilemi (1999) 5 NWLR (Pt. 603) 364 at 382. It is clear that restoring the paragraph would have occasioned a great miscarriage of justice on the 2nd respondent…”
(Italics mine for Emphasis)
See also: Sylva Vs INEC (2018) 18 NWLR (Pt.1651) 3p @ 352 F – H.

The issue as to whether paragraphs 33-35, 39-41, 46-45 and 72-113 of the Appellants’ Reply to the 2nd Respondent’s Reply and paragraphs 33, 34, 39 – 41, 46- 114 of the Appellants’ Reply to 3rd respondents Reply, contravene Paragraph 16(1) of the First Schedule to the Electoral Act, 2022, is an issue of fact. In other words, the Court is required to read and examine the said paragraphs vis-a-vis the averments in support of the petition to determine, whether new issues were raised or not. There are concurrent findings of the two lower Courts, after a careful scrutiny of the said paragraphs, to the effect that the paragraph offend Paragraph 16(1) of the First Schedule. It is settled law that this Court does not make a practice of interfering with concurrent findings of fact unless the findings are

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shown to be perverse. See: Oke Vs Mimiko (No.2) (2014) 1 NWLR (Pt.1388) 225 @ 398 A – B, Ibodo Vs Enarofia (1980) 5-7 SC 42; Chiwendu Vs Mbamali (1980) 3-4 SC 31; Otitoju Vs Governor of Ondo State (1994) LPELR – 2825 (SC) @ 17 D – F; Olatayo Vs The State (2022) LPELR – 56882 (SC) @ 21-23 F – B.

I have considered the submissions of learned senior counsel for the Appellants at paragraphs 5.0-5.7 of his brief. Beyond the contention that the lower Court was wrong to have affirmed the finding of the trial Tribunal, no effort was made to demonstrate to this Court that the findings are perverse. The Tribunal, at pages 13767 to 13769 Vol. 24 of the record, as regards the reply to the 2nd respondent’s reply and pages 13790 – 13791 as regards the appellant’s reply to 3rd respondent’s reply examined the disputed pleadings and agreed with the 2nd and 3rd respondents that the appellants have introduced new facts, which they were not entitled to do. The Court below at pages 14069- 14072 Vol. 25 of the record held inter alia:
“Regarding issue No. 4, I had myself perused the said paragraphs and I am satisfied that they contravened the provisions of Paragraph 16(1) of the Electoral Act, 2022

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by introducing new issues and new evidence as observed by the Tribunal in its judgment at pages 13767 – 13769 Vol. 24 of the record of appeal thus…
The above detailed finding of the Tribunal cannot be faulted and I completely agree with them.”

I have also taken a careful look at the disputed pleadings. I agree with the concurrent findings of the two lower Courts that the said averments seek to introduce new facts and evidence whereas there are no new issue raised in the pleadings of the 2nd and 3rd respondents. Moreover, the appellants have failed to demonstrate how the findings are perverse.

I find no merit in this issue. It is accordingly resolved against the appellants.

Issue 3 and 4
Whether the Court below was right when it aligned with the finding the Tribunal that the appellants’ documents at the trial were dumped without identification, relating to specific areas and demonstration, thus rendering them worthless and of no probative value.
Whether the Court below rightly agreed with the trial Tribunal that the Appellants did not prove their case to be entitled the reliefs sought in the Petition.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px; scrollbar-color: var(–thumbBG) var(–scrollbarBG);”></br<>

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Learned senior counsel for the appellants contended that indeed the documents tendered and relied upon at the trial were duly demonstrated and linked to specific aspects of their case. He noted that the Tribunal even made findings on some of the documents while the 1st respondent’s witness PW1 was cross-examined on several of the exhibits. He submitted that it was agreed and ordered at the pre-hearing session before the Tribunal that CTCs of INEC documents could be tendered from the Bar. He submitted that the documents were tendered accordingly and duly identified by PW1. He submitted that the documents speak for themselves. It was contended that since documents cannot be varied by oral evidence, the Tribunal ought to have examined and relied on them.

Learned senior counsel noted that in accordance with Paragraph 46(4) of the First Schedule to the Electoral Act, the documents were taken as read. He submitted that in PW1’s written statements at pages 224 – 334 Vol. 1 of the record material facts relating to the documents were pleaded, linked with the appellants’ case and demonstrated at the trial. He submitted that PW2 equally pleaded and demonstrated

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the PVR series. Relying on Section 137 of the Electoral Act, 2022, he submitted that oral evidence is unnecessary where the documents manifestly disclose the non-compliance alleged by the petitioners.

As regards the remaining grounds B and C of the petition, i.e. that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022 and that the 3rd respondent was not duly elected by majority of lawful votes cast at the election, learned counsel submitted that the testimony of their witnesses, PW1 and PW2 and the documentary evidence tendered through them sufficiently proved their case. He submitted that the Tribunal failed in its duty to examine the documents tendered. He submitted that Exhibit P35 (expert forensic report) which (was wrongly expunged by the Tribunal, contained unassailable analysis/evidence which showed that the appellants and not the 3rd respondent scored the majority of lawful votes cast.

He referred to the appellants’ reply to the 3rd respondent’s reply at pages 12247 – 12248 Vol. 22 of the record, where it was pleaded that the appellant scored 198,740 votes while the 2nd and 3rd respondents

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scored 137,842. Incidentally, these scores were pleaded in paragraph 113 pf the appellants’ reply to 3rd respondent’s reply at page 12248 Vol. 22 of the record, already expunged.

On the issue of non-compliance, he submitted that the appellants had established that the announcement of results and final declaration was made while collation was ongoing. He referred to Exhibit P26 (Form EC8E). Referring to Exhibit P24, he submitted that it constituted proof that collation was ongoing as at 19th March 2023 while the declaration was made on 18th March 2023 in several Local Government Areas. He submitted that the Court below wrongly relied on Section 135(3) of the Electoral Act, 2022 in holding that the discrepancies between Exhibits P24 and P26 were of no moment or a mistake. He argued that it is only the declaring body (INEC) that can plead and prove mistake. In the absence of such pleading from the 1st respondent, he submitted that the holding of the lower Court could not be justified. He submitted that the appellants have placed sufficient facts before this Court to warrant interference with the concurrent findings of the two lower Courts.

Learned

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counsel for the 1st respondent observed that notwithstanding the fact that the Tribunal expunged the evidence of Pw2, along with Exhibit P35, it still bent over backwards and gave consideration to PW2’s evidence as it touched on Grounds B & C of the petition. He noted that with respect to Ground B – non-compliance, the appellants relied on 3 factors:
(a) that the state-wide final result, Form EC8E was declared on 18th March 2023 while collation of result; was still ongoing at certain Local Government Areas;
(b) failure to upload all polling units results on the 1st respondent’s iREV Portal; and
(c) that 347 polling unit election results (Form EC8A) were not signed, stamped and/or dated by Presiding Officers of the 1st respondent.

On the alleged declaration of results on 18/3/23 while collation was purportedly ongoing on 19/3/23, he submitted that the Tribunal and the Court below were right to have invoked Section 135(3) of the Electoral Act. He noted that the Tribunal observed that Exhibit P26 (declaration of results) derived its contents from Exhibit P24 and that since there was consistency between all the entries on Exhibit P24 and

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Exhibit P26 except for the date on P26, it was evident that the date on Exhibit P26 was a mistake. He submitted that both lower Courts observed that the entries in Exhibit P24 were not challenged. He submitted that aside from the prescription of the correctness of the result, the onus was on the appellants, who sought declaratory reliefs to rebut the presumption and not on the 1st respondent to plead or prove what is statutorily presumed in its favour.

On the allegation of failure to sign or stamp or date Form EC8A and the finding that documents were dumped on the Tribunal, learned counsel observed that the appellants called only 2 witnesses – the 1st appellant (PW1) and a forensic expert (PW2). He noted that the evidence of PW2 was struck out by the Tribunal leaving only the evidence of PW1. He submitted that the Tribunal was correct, when it held, relying on the recent decision of this Court in Oyetola Vs INEC (supra) that Section 137 of the Electoral Act, 2022 does not relieve the petitioners of the burden of calling witnesses to prove the allegation of non-compliance. He submitted that the lower Court rightly upheld the finding of the

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Tribunal, particularly as PW1, under cross-examination, admitted that he did not know how many Form EC8As were not signed, stamped, or dated.

On the issue of overvoting, multiple thumbprinting and stuffing of ballot boxes, he submitted that the lower Courts were right when they held that not only were the documents sought to be relied upon to establish the complaints dipped on the Tribunal without being demonstrated by linking them to specific aspects of their case, no ballot boxes were tendered to prove ballot box stuffing and multiple thumb printing and PW1 himself, in his evidence admitted that he did not know how many ballots were effected by the alleged ballot box stuffing. PW2, on the other hand, testified that he did not carry out any forensic examination relating to ballot stuffing and multiple thumb printing.

Learned counsel for the 2nd respondent cited several authorities to support the contention that it is not the duty of the Court to sort out documents in the recess of its chambers in order to link them to the evidence and pleadings, the Judge being an adjudicator and not an investigator. On the application of Section 137 of the Electoral Act,

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he submitted that there is no semblance of manifest non-compliance on the document to warrant the application of that provision. He referred to Abubakar Atiku & Anor. Vs INEC & Ors: SC/CV/935/2023 delivered on 26/10/2023, per Okoro, JSC at pages 72-73; also, Oyetola Vs INEC (supra).

On proof of a complaint of non-compliance, learned counsel submitted that by virtue of Section 131 and 132 of the Evidence Act, 2011, the burden of proof lay on the appellants, not only to prove the alleged non-compliance, but to prove that the alleged non-compliance substantially affected the result of the election. He submitted that it is only once the burden is discharged by the petitioner that the onus will shift to the respondents to establish that the results were not thereby affected.

On the allegation of premature declaration of results, learned counsel submitted that PW1, an INEC official, confirmed that the 1st respondent was not declared on 18th March 2023 but on 19th March 2023, after collation of result from all Local Government Area collation centres, thereby implying that the date on Exhibit P26 was a mistake. It was argued that the

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appellants ought to have done more than merely pointing out the inconsistency in the dates but should have gone further to show that the declaration was premised on invalid votes recorded and that the said votes differed from the votes recorded in other exhibits. Reference was made to the case of Ogboru Vs Okowa (2016) 11 NWLR (Pt.1522) 84 @ 123-124 H – F.

Learned counsel submitted that the appellants did not advance any arguments in their brief regarding the allegation of non-compliance by reason of failure to upload the Form EC8As to the iREV and allegation of non-signing/stamping/dating of 347 polling unit results. He submitted that the said issue is deemed abandoned. This submission aligns with the submission of learned counsel for the 1st respondent on the issue of ballot box stuffing and multiple thumb printing, not having been proved.

On the issue of overvoting, he submitted that having failed to tender any BVAS machine by which it could be proved that the number of accredited voters as captured therein was less than the total votes cast in any of the polling units alleged, the appellants had woefully failed to prove overvoting. He

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submitted, without conceding, that even if there was overvoting, the appellants failed to prove that it affected the result of the election.

The submissions of learned senior counsel for the 3rd respondent are essentially in tandem with those of the 1st and 2nd respondents.

Resolution of Issues 3 and 4
Before delving into the merit of these issues, it is necessary to make some observations. The first is that, as stated earlier, at the hearing of the appeal, learned senior counsel for the appellants, Ahmed Raji, SAN applied to withdraw Ground 4 of the Notice of Appeal and Issue 3 predicated thereon having taken due notice of the position of this Court on the effect of failure to comply with the provision of Paragraph 4(5) (6), 41(1) and (3) of the First Schedule to the Electoral Act, 2022 and Section 285(5) of the 1999 Constitute in, as amended, by frontloading the witness statement of all witnesses intended to be called at the hearing of the petition, including subpoenaed witnesses.

The said Ground 4 and Issue 3 challenge the finding of the lower Court affirming the expunction of the evidence of PW2, (a forensic expert) on subpoena whose

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witness statement on oath was not frontloaded, along with Exhibit P35 tendered through him. The effect of the withdrawal of Ground 4 and issue 3 is that the judgment of the lower Court on this issue stands. In other words, the evidence of PW2 and Exhibit P35 tendered through him remain expunged from the record.

The reference to Exhibit P35 in paragraphs 8.8 and 8.9 of the appellant’s brief, said to contain “unassailable analysis/evidence” which showed that the 1st respondent scored the majority of lawful votes cast at the election, is hereby discountenanced.

It follows therefore that the only evidence in support of the petition was the evidence of PW1 and the documents tendered through him or from the Bar.

By virtue of Section 131 and 132 of the Evidence Act and settled authorities, the burden of proof in an election petition where declaratory reliefs are sought, lies on the petitioner, as he is the party who would fail if no evidence is produced on ether side. See: Omoboriowo Vs Ajasin (1983) 10 SC 178; Buhari Vs INEC (2008) LPELR – 814 (SC) @ 48 B – D; Oyetola Vs INEC (2023) 11 NWLR (Pt. 18 94) 125 @ 168 A – D. The evidential burden

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would only shift where evidence produced by the petitioner establishes the facts alleged in the petition.

As rightly observed by learned counsel on both sides, Grounds B and C of the petition alleged:
(B) that the election was invalid by reason of noncompliance with the provisions of the Electoral Act, 2022; and
(C) that the 3rd respondent was not duly elected by minority of the lawful votes cast at the election.

On the issue of non-compliance, the major complaint of the appellant is that results of the election were declared (Exhibit P26) while collation of votes was ongoing in several polling units (Exhibit P24). It was contended that this fact was established having regard to the date on Exhibit P26 (18th March 2023), which predates the collation of results Exhibit P24 dated 19th March 2023. The trial Tribunal invoked Section 135(3) of the Electoral Act, 2022 to hold that the discrepancy in the dates was a mistake which ought not to vitiate the election. The lower Court agreed. The appellants have argued vehemently before this Court that there was no basis for the finding of mistake in the absence of any pleadings to that effect by the

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1st respondent.

Section 135(3) of the Electoral Act, 2022 provides:
“135(2) No election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the Commission.”
There is no doubt that this clear and unambiguous provision was inserted in the Electoral Act, 2022 to ensure that an election is not nullified or cancelled owing to a genuine error in the date endorsed on the result of an election. The section acknowledges the possibility of human error, which should not be allowed to defeat the outcome of an otherwise duly conducted election reflecting the will of the electorate.

Furthermore, where there is a complaint of non-compliance with the provisions of the Electoral Act, the petitioner must go further to prove that the alleged non-compliance substantially affected the outcome of the election. See Section 135(1) of the Act. See also: per Okoro, JSC in Abubakar Atiku & Anor, Vs INEC (supra) @ pages 67 – 68, where His Lordship held, inter alia:
“From the provision of the Electoral Act

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stated above, it is crystal clear that a petitioner seeking to nullify an election on ground of non-compliance, must not only lead evidence to prove the noncompliance but must also show to the Court how well non-compliance substantially affected the outcome of the election. A petitioner in this situation must therefore adopt a kind of double-barrel approach, you don’t fire one barrel and leave the other intact. Both must be fired together at the same time.”
See also: Yahaya Vs Dankwanbo (2016) 1 SC (Pt. III) 29: (2016) LPELR – 48364 (SC) @ 30 – 32 C – A; Akinlade Vs INEC (2019) LPELR – 55090 (SC) © 10 D – F.

At pages 13842 – 13843 Vol. 24 of the record, the Tribunal held:
“It is noteworthy that this issue is akin to pleading undue return. But the allegation is restricted to the date on the date the return was made. That is 18/3/2023 and instead of 19/3/2023. The figures allegedly declared by the returning officer of 1st respondent as reflected on Exhibit P24 and P26 and P25A and P25B are the same. The names of candidates, political parties and every other material were not disputed.
Finally, Section 135(3) of the Electoral Law

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(sic) provides that such defect or discrepancies in dates CANNNOT invalidate the election. For the avoidance of doubt, Section 135(3) provides:
What above portends is that the petitioners must have gone further in proof of the allegation in calling INEC staff who authored the said Exhibit (EC8E) or the Polling Unit agents to show that actually, the result was declared by him on 18/3/2023 and not 19/3/2023. Instead of doing that, the petitioner dumped that Form EC8E, along with others on this Tribunal, we cannot act on such and we so hold.”

Affirming this finding of the Tribunal, the Court below held at page 14107 Vol. 25 of the record:
“I am afraid the argument of learned senior counsel for the appellants in respect of the discrepancies in the dates contained in Exhibit P24 and P24 (sic: P26 would be of no moment in view of the provision of Section 135(3) of the Electoral Act, 2022 which the Tribunal adequately considered.”

The question to be asked here is whether the appellants have been able to show that these concurrent findings are perverse? I hasten to answer in the negative.

It is not in dispute that there is a discrepancy

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between the date stated on Exhibit P26 and that on Exhibit P24. What the appellants are requiring the Court to do is to reach the conclusion that collation of results was still ongoing at the time results were declared solely on the basis of the discrepancy in dates and on that basis to cancel the election. The appellants have a higher burden than that.

Having regard to the provisions of Section 135(3) of the Electoral Act, 2022, it is clear that the present scenario is one of those envisaged by the legislation. In order to prove non-compliance with the provision of the Electoral Act, in the present circumstances, I am in complete agreement with the trial Tribunal that the appellant ought to have called witnesses who could positively testify to the fact that while they were at the specified collation centres, results were being announced to their shock and amazement. Not only that, they were required to prove that the alleged non-compliance substantially affected the outcome of the election. This evidence is crucial in view of the legal presumption of correctness in favour of election results. The burden is on the petitioner to rebut same. See:

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Omoboriowo Vs Ajasin (supra); Buhari Vs INEC (supra); Ngige Vs INEC (2015) 1 NWLR (Pt, 1440) 281 @ 317 H.

The trial Tribunal rightly observed that the result in Exhibit 26 was predicated on entries in Forms EC8C (collation at word level) and Exhibits P25(A) and P25(B) (collation at State level) and there was no complaint against any of the information contained therein so as to suggest that the final result per Exhibit P26 was wrong. Since there was no complaint about the entries that culminated in Exhibit P26, and no witnesses were called to establish the fact that resists were announced while collation was in progress, the Courts below were correct when they invoked Section 135(3) of the Electoral Act and declined to invalidate the election on the basis of a clear mistake as to the date endorsed on Exhibit P26.
In Ogboru Vs Okowa (2016) 11 NWLR (Pt. 1522) 84 @ 124 C – E, his Lordship Onnoghen, JSC (later CJN) held thus:
“If the defect in these two documents [Exhibits P28 and P29 Forms EC8D and EC8E] are to lead to the nullification of the entire election and the return of the 1st respondent, beyond appellants’ ipse dixit on the disparity

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between the date the signatures on the documents were appended and the date the elections were concluded, appellants must further establish the difference in the figures in the exhibits and the figures in the Forms EC8A, EC8A (sic) and EC8C they drew from. Having failed to demonstrate this, it is absurd for the appellants to press that the entire April Governorship election in Delta State be annulled because of wrong dates on Exhibits P28 and P29.”
The purpose of Section 135(3) of the Electoral Act, 2022 is to prevent a petitioner from overturing an otherwise well-conducted election on the basis of an accidental slip.

Another issue of non-compliance raised by the appellant was failure of the 1st respondent to upload all the Form EC8As to the iREV Portal. I agree with learned counsel for the respondents that the appellants appear to have abandoned this ground of non-compliance, as they have not advanced any arguments thereon.

The third issue or ground of non-compliance is the contention that polling unit results (Form EC8A) were not signed, stamped, or dated in respect of 347 polling units. Proof of this complaint revolves around the Form EC8As

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tendered from the Bar by the appellants. The trial Tribunal held and the lower Court agreed that the documents were dumped on the Tribunal without being demonstrated or linked to any aspect of the appellants case. The appellants contend before us that the documents could not have been dumped on the Tribunal having regard to the fact that it was agreed at the pre-hearing session that the documents could be tendered from the Bar, and further that by virtue of Section 137 of the Electoral Act, oral evidence was not necessary where the documents manifestly disclose the non-compliance alleged.
Section 137 of the Electoral Act, 2022 provides:
“137. It shall not be necessary for a party who alleges non-compliance with the provision of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance”
The application of this section was considered in Oyetola Vs INEC (supra) and Abubakar Atiku Vs INEC (supra). In Abubakar Atiku Vs INEC, His Lordship, Okoro, JSC held thus:
“… The above provision has not absolved a petitioner of the need to lead credible evidence to prove

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non-compliance. It states clearly that oral evidence may not be necessary if and only if on finals or certified true copies manifestly disclose non-compliance.”
His Lordship, Jauro, JSC expressed a similar opinion in Oyetola Vs INEC (supra). The consistent position of this Court against the dumping of documents has always been to protect and maintain the integrity of the Court as an unbiased umpire. A Court is not expected to engage in an investigation of documents/evidence tendered by a party in the recess of its chambers which have not been demonstrated in open Court. To do so would reduce the Judge from his lofty height above the fray to the dust of conflict below. In Action Congress of Nigeria Vs Lamido (2012) ALL FWLR (Pt,630) 1316; (2012) 8 NWLR (Pt.1303) 560, His Lordship Fabiyi, JSC stated thus:
“The basic aim of tendering documents in bulk is to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents. It is not the duty of a Court or Tribunal to embark upon cloistered justice by making enquiries into the case outside the open Court, not even by examination of

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documents which were in evidence but not examined in the open Court. A Judge is an adjudicator, not an investigator.”
See also Ladoja Vs Ajimobi (2016) 10 NWLR (Pt, 1519) 87; Ogboru Vs Okowa (supra); Omisore Vs Aregbesola (2015) 15 NWLR (Pt. 1482) 205.
It is noteworthy that the 1st appellant (PW1) was the appellants’ only surviving witness. It is also evident, as noted by the lower Court at pages 14100 – 14102 Vol. 25 of the record that having tendered their documents from the Bar, the appellants
“…acted under an erroneous impression that they were immunized by Section 137 of the Electoral Act from adducing further evidence before the Tribunal. They had the most erroneous assumption of the very essence of Section 137 of the Electoral Act, 2022, which they indirectly believed relieved them of the imperative duty placed upon them by the Evidence Act to establish their case via concrete documentary evidence and eye witness accounts.
… They relied on the case of Oyetola Vs INEC & Ors. (supra) where it was held that it shall not be necessary for a party who alleges non-compliance …to call oral evidence if originals or

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certified true copies manifestly disclose non-compliance.
This assumption is absolutely wrong in law as they were required to adduce cogent and credible evidence where the non-compliance complained of is not manifest on the face of the documents tendered.”
I have examined the record and I agree with the two lower Courts that the appellants’ documents were dumped on the Tribunal without being demonstrated.
Section 137 of the Electoral Act, 2022 was seen as a saviour, absolving them of the need to properly link any of the bulk of documents tendered to specific aspects of their case. They expected the Tribunal to retire to chambers and scrutinize the documents one by one to determine which one supports a particular aspect of their case. This is not the duty of the Court. Besides, the appellants have the burden of proving that the alleged non-compliance substantially affected the outcome of the election. Under cross-examination, as observed by the lower Court, PW1 was unable to state how many Form EC8As were not signed, stamped, or dated in Akko, Dukku, Gombe and Balanga Local Government Areas. The appellants have failed to show that the two lower

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Courts erred in their findings on this issue.

Ground C of the petition concerns an allegation of overvoting. This Court has settled the position as to the documents required to prove overvoting. They are:
(i) the voters register;
(ii) the Bimodal Voter Accreditation System (BVAS), and
(iii) Form EC8As.
This is because in order to prove overvoting, the party complaining must prove that the number of votes cast in any polling unit exceeds the number of accredited voters in that polling unit. See Section 51(1) of the Electoral Act, 2022. The voter’s register will determine the number of registered voters. The BVAS machine will show how many of the registered voters were accredited to vote, while the Form EC8As will indicate the number of votes cast at the election. See also: Oyetola Vs INEC (supra).
The appellants did not tender any BVAS machines. It was held in Oyetola Vs INEC (supra) that the failure to tender any of the documents referred to above, is fatal to the petition.

Furthermore, multiple thumbprinting and ballot box stuffing are allegations of crime, which must be proved beyond reasonable doubt. See: Anyanwu Vs P.D.P.

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(2020) 3 NWLR (Pt. 1710) 170 B – C. The lone testimony of PW1 and the documents dumped on the Tribunal were clearly inadequate to discharge this onerous burden of proof.

On the whole, I find no merit in issues 3 and 4. They are accordingly resolved against the appellants.

Having resolved all the issues in contention in this appeal against the appellants, I hold that the appeal lacks merit. It is hereby dismissed. The judgment of the lower Court delivered on 23/11/2023 is affirmed.
Parties to bear their respective costs.
Appeal dismissed.