Bande Aminu & Anor v. Independent National Electoral Commission (INEC) & Ors

On 18/3/2023 and 15/4/2023, the 1st Respondent (INEC) conducted the Governorship Election and supplementary election respectively, into the office of the Governor of Kebbi State. In the election, the 1st Appellant was sponsored by the 2nd Appellant, whilst the 2nd Respondent was sponsored by the 4th Respondent. The 3rd Respondent was the running mate of the 2nd Respondent. At the conclusion of the election, the 2nd Respondent was declared the winner, having scored the majority of lawful votes of 409,225 against the Appellants who scored 360,940; with the margin of lead being 48,285.

Dissatisfied with the outcome of the said election, the Appellants filed a joint Petition against the Respondents on 5/5/2023. At the hearing of the petition, the Appellants called 86 witnesses in proof of their petition. At the close of hearing, the trial Tribunal on 5/10/2023 delivered its judgment dismissing the Petition for lacking in merit. Aggrieved by the judgment of the trial Tribunal, the Appellants on 24/10/2023, appealed to the lower Court. On 24/11/2023, the lower

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Court found the Appellants’ appeal unmeritorious and accordingly dismissed same. This impelled the Appellants’ appeal to this Honourable Court.

ISSUES FOR DETERMINATION BY PARTIES:
The learned senior Counsel for the Appellants nominated these issues for the determination of this appeal:
I. Whether the Appellants have proved that the 3rd Respondent was disqualified by virtue of Sections 182(1)(j) of the 1999 Constitution of the Federal Republic of Nigeria (as altered), from contesting in the Kebbi State governorship election, having submitted forged certificate to the Independent National Electoral Commission.
II. Whether the question of qualification of the 3rd Respondent as presented by the Appellants is a pre-election matter.
III. Whether the lower Court did not altogether come to a wrong decision that the Appellant failed to prove its alternative ground upon which the petition was presented to wit: that the election was invalid by reason of non-compliance with the provisions of the Electoral Act, 2022.
IV. Whether the decision of the lower Court was not, in the circumstance, perverse.

The 1st Respondent nominated

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these issues:
1. Whether the Appellants have proved that the 3rd Respondent was not qualified by virtue of Section 182(l)(i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to contest in the Kebbi State Governorship Election?
2. Whether the issue of the qualification of the 3rd Respondent as presented by the Appellants is a pre-election matter.
3. Whether the lower Court was correct when it held that the Appellants failed to prove their ground of non-compliance in the petition.
4. Whether the decision of the lower Court not being perverse, ought to be disturbed by this Honourable Court.

The 2nd Respondent distilled these issues for determination:
1. Whether in the light of the decision of this Honourable Court in SC/CV/935/2023 between ABUBAKAR ATIKU & ANOR v. INEC & ORS delivered on the 26th of October, 2023, the lower Court was not right to have held that the trial tribunal rightly struck out paragraphs 16, 17, 18, 22, 23, 24 and 25 of the Petition, the evidence of PW27, PW28 and PW78 who were subpoenaed witnesses and the exhibits tendered in respect of the allegations of forgery of testimonial

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including exhibits P569 (disclaimer), P713, P714 and P715, INEC Forms CF001 and EC9?
2. Whether the lower Court was right to have upheld the decision of the trial Tribunal that the Appellants failed to adduce legally admissible and credible evidence in prove of the allegation that the 3rd Respondent was not qualified to contest the election for the office of Governor of Kebbi State held on the 18th day of March, 2023 and 15th day of April, 2023?
3. Whether the lower Court was not right when it held that the trial Tribunal rightly struck out paragraphs 16, 17, 18, 22, 23, 24, 25, 26, and 27 of the Appellants’ Petition on the ground that they dealt with pre-election matters?
4. Whether the lower Court was not right when it affirmed the judgment of the Trial Tribunal that the Appellants failed to prove the allegations of non-compliance with the provisions of the Electoral Act, 2022 in the conduct of the Kebbi State Governorship Election of 18th day of March, 2023 and 15th day of April, 2023?
5. Whether the lower Court rightly dismissed the Appellants’ Appeal in its entirety for failure to adduce cogent, verifiable and legally admissible

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evidence to warrant the grant of the declaratory reliefs sought by the Appellants?

The 3rd Respondent formulated these issues:
1. Whether the lower Court was right in affirming the judgment of the tribunal expunging the evidence of PW27, PW28, and PW78 who were subpoenaed witnesses and filed no witness statement on oath before the Tribunal together with exhibits tendered by them?
2. Whether the lower Court was right in affirming the judgment of the tribunal that exhibit P569, the disclaimer and all other exhibits that followed from it were infected by the virus that infected Exhibits P569?
3. Whether the lower Court was right in upholding the dismissal of the allegation of nonqualification of the 3rd Respondent, which is anchored on forgery of testimonial?
4. Whether the lower Court was right in affirming the tribunal’s judgment that the Appellants failed to prove the allegations of non-compliance with the provision of Electoral Act (the alternative prayer of the Petition) and consequently dismissing the Petition in its entirety?
5. Whether the lower Court was not correct in its decision that paragraphs 16, 17, 18, 22, 23, 24 and

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25 of the appellants’ case deal with issue of nomination and sponsorship of candidate which is a pre-election matter on which the Tribunal has no jurisdiction?

The 4th Respondent distilled these issues:
1. Whether the lower Court was right in affirming the decision of the trial Tribunal expunging the evidence of the Appellants’ subpoenaed witnesses, PW27, PW28, and PW78 and all exhibits tendered by them in respect of the allegation of forgery of testimonial.
2. Whether the lower Court was right in affirming the decision of the trial Tribunal that Exhibit 569 the letter of disclaimer having been written by PW27 during the pendency of the Petition in response to a request by Appellants counsel and all subsequent exhibits that followed it are caught by the virus of Section 83(3) of the Evidence Act 2011.
3. Whether the lower Court was right in its decision striking out Paragraphs 16, 17, 18, 22, 23, 24, 25, 26, and 27 of the Petition on the ground that they dealt with pre-election matter over which the trial Tribunal hud no jurisdiction and if the same had occasioned a miscarriage of justice.
4. Whether upon a proper evaluation of the evidence

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led, the lower Court was right in upholding the decision of the trial Tribunal that the Appellants failed to adduce legally admissible and credible evidence in proof of the allegation that the 3rd Respondent submitted a forged Certificate to the 1st Respondent and was therefore not qualified to contest the Election for the office of Governor of Kebbi State.
5. Whether the lower Court was right when it affirmed the decision of the trial Tribunal that the Appellants failed to prove the allegations of non-compliance with the provisions of the Electoral Act, 2022 in the conduct of the Kebbi State Governorship Election.

ISSUES FOR DETERMINATION BY THE COURT:
The Appellants argued their issues 1 and 2 together but will be retouched by this Court, while issues 3 and 4 of the Appellants will also be couched together. This appeal shall therefore be considered on 2 issues as follows:
1. Whether the issue of the disqualification of the 3rd Respondent to contest the Kebbi State Governorship election was not proved by the Appellants as a pre-election matter?
2. Whether the lower Court was wrong to hold that the alternative ground of non-compliance

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with the Electoral Act, 2022, was not was proved by the Appellants?

ISSUE ONE:
Whether the issue of the disqualification of the 3rd Respondent to contest the Kebbi State Governorship election was not proved by the Appellants as a pre-election matter?
The learned senior Counsel to the Appellants argued that the Appellants’ case is that the testimonial presented by the 3rd Respondent to INEC is forged having regards that the 3rd Respondent never graduated from Sultan Abubakar College, Sokoto, and thus disqualified by virtue of Section 182 (1)(j) of the 1999 Constitution (as amended). That by virtue of Section 182 (1)(j) of the 1999 Constitution (as amended) and Section 134 (1)(a) of the Electoral Act, 2022, the issue of disqualification of a candidate to contest governorship election is both a pre and post-election matter that has no statutory limitation of time. Strong reliance was placed on SALEH V. ABAH & ORS (2017) 12 NWLR (PT. 1578) 100, MAIHAJA V. GAIDAM (2017) LPELR-42474 (SC). That once it is proved that a person submitted a forged certificate to INEC at any time, he stands disqualified from contesting any election. He submitted

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that to prove their allegation, the Appellants tendered Exhibits P.734 (INEC Form CF001) and P.714 (INEC Form EC9 for 2023 General Election) through PW98. He submitted that it is immaterial that the 3rd Respondent did not attach the testimonial of Sultan Abubakar College, Sokoto in P.714 (INEC Form Ec9 for 2023 General Election). Further in proof, that Exhibits P.571 and 572 showed that the name Umar Abubakar did not graduate from Sultan Abubakar College, Sokoto. It was contended that the admission of Exhibits P.581, 582, and 583, utilized to prove that the testimonial submitted by the 3rd Respondent was not forged ought to be expunged since they were not pleaded nor frontloaded. He relied on Paragraph 12 (3) of the First Schedule to the Electoral Act, 2022 and ONYEWUCHI V. IHEMEDU & ORS (2015) LPELR- 25776 (CA). Again, that the evidence of RW3 is unreliable and at best supported the case of the Appellants since he was only Principal between 30/5/2023 to 12/6/2023. Thus, that the lower Court was wrong to expunge the evidence of PW27, PW28, and PW78 since they were admitted without objection contrary to the decision in UZODINMA V. IHEDIOHA (2020) 5 NWLR (PT.

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1718) 529.

He submitted that the finding that the presentation of a forged certificate by the 3rd Respondent is a pre-election matter is perverse. He asked this Court to resolve this issue in favour of the Appellants.

The arguments of the learned senior Counsels to the 1st, 2nd, 3rd, and 4th Respondents shall be considered together. It was submitted that since PW27, PW28, and PW78 were subpoenaed witnesses, who tendered Exhibits 713, P714, P715, INEC Forms CF001 and EC9 including the disclaimer (Exhibit P569) on allegation of forgery of testimonial by the 3rd Respondent, the lower Court was right to strike out their evidence for not being frontloaded with the petition. He referred to SC/CV/935/2023 BETWEEN ATIKU ABUBAKAR & ANOR V. INEC & ORS delivered on 26/10/2023. Also, that the Respondents objected to the testimonies of the subpoenaed witnesses and the fact that both Appellants and Respondents relied on the evidence of subpoenaed witnesses does not make it permissible in law since parties cannot confer jurisdiction on the Court by agreement. Similarly, that the Appellants failed to adduce legally admissible evidence in proof of the

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allegation that the 3rd Respondent was not qualified to contest the office of Governor of Kebbi State held on 18/3/2023. Furthermore, that paragraphs 16, 17, 18, 22, 23, 24 and 25 of the Appellants’ petition relate to the alleged submission of false information by the 3rd Respondent to the INEC in Forms CF001 and EC9, which are acts that happened prior to the Kebbi State Governorship election of 18/3/2023, outside the jurisdiction of the trial Tribunal as decided in PDP V. NGBOR & ORS (2023) LPELR-59930 JSC. They prayed for the resolution of this issue in favour of the 1st, 2nd, 3rd, and 4th Respondents.

RESOLUTION OF ISSUE ONE:
It must be noted that he who alleges must prove. This applies also to election petition. The petitioner will fail if no evidence is given by him to support his petition. The issue of proof in election petition is on the petitioner, which are the Appellants in the instant appeal. The burden of proof lies on the petitioner to prove the averments and allegations in his petition in areas where issues have been joined. See Per OBASEKI, JSC in OMOBORIOWO & ORS V. AJASIN (1984) LPELR-2643(SC) (PP. 41 PARAS. B). Per AGIM,

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JSC in OYETOLA & ANOR V. INEC & ORS (PP. 11-12 PARAS. C), stressed the point thus:
The appellants in their petition desired the Tribunal to give judgment to them granting them the reliefs they claimed on the basis that the facts they assert in their petition exist. Therefore, they had the primary legal burden to prove the existence of those facts by virtue of S. 131(1) of the Evidence Act 2011 which provides that “whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must” prove that those facts exists.” Because the evidential burden to disprove the petitioners’ case would shift and vest on the respondents only if the evidence produced by the petitioners established the facts alleged in the petition by virtue of S. 133(1) and (2) of the Evidence Act, the Tribunal was bound to first consider if the evidence produced by the petitioners established the existence of the facts alleged in the petition, before considering the evidence produced by the respondents to find out if the evidence disproved the case established by the petitioners on a balance of probabilities.
Even

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where the Respondents do not lead evidence to dislodge the petition of the Appellants and choose to remain mute, the Appellants have the bounden duty and obligation to prove their petition against the Respondents.
At page 19 of paragraph 4.54 of the Appellants’ brief of argument, it was argued that since the evidence of PW27, PW28, and PW78 was admitted without objection from the Respondents, they cannot object to it on appeal. It is however indicated by the record before me that there was an objection on the issue which caused the trial Tribunal to determine and decide on it. Besides and rightly as submitted by the learned senior Counsel to the 2nd Respondent, parties cannot confer jurisdiction on the Court over inadmissible evidence or matter. By virtue of Paragraphs 4(5) and 41(1) and (3) of the 1st Schedule to the Electoral Act, 2022, the Appellants have lost their right to use and rely on the evidence of PW27, PW28, and PW78. Similarly, the Court has also lost its jurisdiction to entertain same. It is trite that jurisdiction cannot be acquired or conferred on the Court by consent of the parties, or because the Court was oblivious or mistaken as to the

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defect in its jurisdiction. See Per KARIBI-WHYTE, JSC in DONGTOE V. CIVIL SERVICE COMMISSION, PLATEAU STATE & ORS (2001) LPELR-959(SC) (PP. 18 PARAS. F).

The evidence of PW27, PW28, and PW78, having been filed after the statutory period allowed to file statement of witnesses on oath, it is inadmissible and allowing same will muzzle the Respondents in exercising their right to fair hearing. It is also against the rules of pleadings since it will spring surprise on the Respondents, who may not have time to respond. This Court recently in SC/CV/935/2023 between ABUBAKAR ATIKU & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ORS delivered on the 26th day of October, 2023, Per Okoro, JSC held:
…a combined reading of Section 285 (5) of the Constitution of the Federal Republic of Nigeria (as amended) and Paragraph 4 (5) of First Schedule to the Electoral Act, 2022, shows that the time for the filing of written statement on oath of witnesses in election petition proceedings is 21 days from the date of declaration of results… amendment to the petition or calling of additional witnesses will not be entertained after the statutory time

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limit for the filing of the petition has expired… subpoenas are not a tool with which to circumvent the provisions of the law and the effect and purpose of Section 285 (5) of the Constitution and Paragraph 4 (5) of the First Schedule to the Electoral Act, 2022. It is on this note that I hold that the decision of the Court below to strike out the offending witness depositions cannot be faulted.

Section 182(1)(j) of the 1999 Constitution (as amended) provides that “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”. Further, Section 134 (1)(a) of the Electoral Act, 2022 provides that “An election may be questioned on any of the following grounds- A person whose election is questioned was at the time of the election not qualified to contest the election”.
Although Courts have held and with finality decided on the communal interpretation of the above sections to mean that it is a pre-election matter, I must add that the word “shall” is not always standing for mandatory. It may mean

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futuristic, imminent and yet to happen. It denotes that there must have been a disqualification before the Governorship election is conducted. It implies that the person is not only disqualified by mere presentation of a forged certificate to INEC but that he must have been criminally convicted or certified so by the Federal High Court or by the preponderance of evidence proved that he forged the certificate. This is the reason why it has to be proved beyond reasonable doubt to bring the forger to conviction by the Court before he stands disqualified to contest the governorship election or the Federal High Court must certify and decide on forgery against the person. From the moment a party or adverse party discovers the presentation of a forged certificate or forgery, he goes to the Federal High Court to seek for redress and it is the judgment of the Federal High Court convicting or establishing forgery that can be used to disqualify such a candidate. That is the spirit and intent of the decision of this Court that the issue of disqualification for election and nomination ought to be a pre-election matter. Whereas the Federal High Court finds the candidate

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convicted or establishes forgery, it can be used for the disqualification of the candidate returned as elected. To my mind, this is the combined and communal meaning of Sections 182 (1)(j) of the 1999 Constitution (as amended) and 134 (1)(a) of the Electoral Act, 2022. The election petition tribunal therefore is established not to handle pre-election matters or cases arising before the election but post-election matters. That is why pre-election matters and election petition are sui generis and time-bound. See Section 285(9) of the 1999 Constitution (as amended). In fact, Section 29 (5)(6) of the Electoral Act, 2022 has expressly explained and settled the matter where it provides that, “(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 candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false. (6) Where

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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 candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election”.
Furthermore, Section 84 (14) of the Electoral Act, 2022 provides that “(14) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”.
Notably and judicially, our Courts have classified pre-election matters into: (1) nomination of a candidate (2) double nomination of a candidate (3) disqualification of a candidate (4) wrongful substitution of a successful candidate’s name by the Electoral Body (5) wrongful omission of a successful candidate’s name by

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the Electoral Body (6) complaints about the conduct of primaries (7) false declaration on oath about particulars of a candidate. See APC v LERE (SUPRA), MODIBBO v USMAN (2020) 3 NWLR (PT. 1712) 470 @ 500 – 515, GBILEVE V. ADDINGI (2014) 16 NWLR (PT. 1433) 394.
I must state also that by the above provisions of the law and judicial precedents, it is expressly and abundantly clear that the issue of disqualification of a candidate is an intra and internal party affairs as provided in Section 29 (5) of the Electoral Act, 2022. In fact, it states that “…any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false…” It therefore does not allow for pugnosing and meddlesomeness by a candidate or party of a different political party. Even where the candidate or aspirant of same political party complains on issue of disqualification or forgery of certificate as in the instant appeal, he must do so within 14 days thereafter or he loses his right. Any matter arising therefrom or that comes before any Court in Nigeria

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after the 14 days are elapsed is stale, expired, and limited and that Court ceases to have jurisdiction to entertain same.
This being so, this Court does not have the jurisdiction to entertain the Appellants’ case bordering on the 3rd Respondent’s disqualification or certificate forgery. It ought to have gone to the Federal High Court and not the election petition Tribunal since it is a pre-election matter. Besides, it would have been done by an aspirant of the primary election in the 4th Respondents (APC) Party and not by the Appellants. The Appellants by law and tradition do not have the locus and right to enquire about the disqualification of the 3rd Respondent nor the issue of certificate forgery, even if it is established to be so.
In the same vein, forgery or presentation of forged certificate is usually considered criminal that the proof of must be beyond reasonable doubt. In the present appeal, the Appellants could not prove this even on preponderance of evidence, let alone beyond reasonable doubt. Apposite and akin to the facts in this appeal is the dictum of Per GARBA, J.S.C in APC & ANOR V. OBASEKI & ORS (2021)

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LPELR-55004 (SC) (PP. 47-53 PARAS. E), when he observed:
…The facts upon which these reliefs were predicated all alleged falsification and forgery of information and documents submitted to the 3rd Respondent by the Respondent which have to be proved beyond reasonable doubt…They must in addition, thereby demonstrate that the 1st Respondent’s indication in the Form submitted to the 3rd Respondent in accordance with the provision of Section 31 (2) of the Evidence Act, that he had fulfilled all the constitutional requirements for the election into the office of the Governor of Edo State, was false.
This issue is resolved against the Appellants.

ISSUE TWO:
Whether the lower Court was wrong to hold that the alternative ground of non-compliance with the Electoral Act, 2022, was not was proved by the Appellants?
The submission of the Appellants is that the 1st Respondent did not substantially comply with the provision of the Electoral Act, 2022, and other extant electoral laws in the conduct of the Kebbi State Governorship election held on 18/3/2023, which election was marred by substantial irregularities and infractions, which include

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failure of the 1st Respondent to comply with the provision of Section 73 (2) of the Electoral Act, 2022, over-voting and lack of improper ballot accounting. He argued that the Court ought to hold the 1st Respondent accountable for failure to comply with Section 73 (2) of the Electoral Act, 2022. Also that the Appellants proved through Exhibits P.421-430, P4311- P738, P1293-P1390, A-K, their case of over-voting, and that the wasted or invalid votes should be deducted from the votes of the Appellants as well as the 2nd and 3rd Respondents. He relied on APC V. KARFI (2018) 6 NWLR (PT. 1616) 505, and asked for a re-run election since overvoting and ballot accounting that affected the said election is a total of 69,779. That the Appellants having produced the CTC of the electoral documents cannot be accused of dumping documents on the Court, which is against the provision of Sections 137 and 46(4) of the Act. He relied also on OYETOLA & ANOR V. INEC & ORS (2023) LPELR-60392 (SC). It was submitted that since the lower Court failed to rely on the evidence before it to make findings which are inconsistent with the evidence on record, its decision is perverse

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and this Court can interfere. He prayed for the resolution of this issue in favour of the Appellants and to allow the appeal.

The 1st, 2nd, 3rd, and 4th Respondents respectively argued that the lower Court decided that even by the pleadings of the Appellants, if over-voting is proved by them, it would not have affected the result of the election. That Exhibits R1-R19 and R22-R299 (EC8C, EC8A, EC8B) and EC40G tendered by the 1st Respondent in support of the declaration of the 2nd, 3rd and 4th Respondents as winners of the Kebbi State Governorship election conducted on 18/3/2023 enjoy presumption of regularity pursuant to Section 168 of the Evidence Act, 2011; since the Appellants could not counteract or rebut them. They also relied on APC V. SHERIFF & ORS (2023) LPELR-59953(SC). Additionally, they contended that no probative value can be attached to the evidence of PW1-PW86, since their evidences have been discredited. That where the petitioner complains of non-compliance, he must prove it polling unit by polling unit, which the Appellants failed to. That the evidences of Appellants’ witnesses were not credible to prove over-voting, neither did

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they produce the BVAS machines and the Register of voters for each polling unit where they alleged overvoting as decided in OYETOLA & ANOR V. INEC & ORS (supra). Again, that none of the Appellants’ 47 witnesses demonstrated that there was improper accounting of ballot papers issued in any of the poling units challenged, nor did it affect the outcome of the said election. Further, that the evidence of PW86 was hearsay since he did not make or sign any of the 110 documents he tendered, nor was he at the polling units where the votes were sorted, counted, recorded, and announced. On dumping of documents, they argued that the purpose for which Exhibits P1293-P1390 were tendered through PW86, Exhibits P714 and P715 through PW78 and Exhibits P1391-P1400 from the bar by the Appellants was left to the conjecture and speculation of the Court. He sought reliance on ANDREW & ANOR V. INEC & ORS (2017) LPELR-48518(SC). They urged for the resolution of this issue in their favour and asked for the dismissal of the appeal.

RESOLUTION OF ISSUE TWO:
The invalidation of an election or the blame of the 1st Respondent (INEC) is possible where

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non-compliance with the provisions of the Electoral Act, 2022 or any extant law on election has substantially affected the results or outcome of the election held on 18/3/2023. This obviously and apparently informed the right and indeed correct decision of the lower Court when it held at page 6445, Vol. VI of the record that “the few polling units were there are ballot non-accounting or ballot deficit, the number is so negligible that it does not have any effect on the votes.” This is squarely in consonance with the provision of the Electoral Act, 2022. The spirit and intent of Section 135 (1) is that:
An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.

The Appellants pleaded with particularity and specificity in their paragraph 124 of the petition that “124. The margin of lead between APC and PDP after the deduction of the votes affected by over-voting is

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thus: 401,240- 355,985=45,255 votes”. However, the margin of lead between the 2nd Respondent and 2nd Appellant is 48,285 votes. Thus, by the candid calculation and admission of the Appellants, the 2nd Respondent is still in the lead with about 3,030 votes. Since the substantial non-compliance was measured and ascertained by the Appellants themselves to come up with this result, how else do the Appellants want the election of 18/3/2023 to overturn in their favour or for this Court to order for a re-run or repeat election? The lower Court verily observed and stated the obvious that ‘from their pleading above, the case of the appellants in respect of overvoting was bound to fail since even if they succeeded in proving over-voting, it would have no effect on the final result of the election”. At pages 6448-6449, the lower Court excerpted the wise and flawless reasoning of the trial Tribunal thus:
…the Tribunal proceeded to consider the case of the appellants in respect of the allegation of over-voting. It held …that the appellants failed to produce the record of accredited voters, BVAS and register of voters, and that only the polling

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results in respect of 35 polling units were tendered and considered by the Tribunal…The Tribunal thereafter, proceeded to identify 7 polling units where over-voting and other irregularities occurred and the votes that were scored by the appellants and the ls1 and 2nd respondents. It concluded…”Votes to be deducted will be as follows:
APC-89 + 152 + 82 + 162 + 193 + 442 + 275=7335.
PDP- 66 + 100 + 117 + 147 + 166 + 250+ 98=944.
The difference would be just 391 votes. This is quite minute and infinitesimal to cause any upset. The margin of lead is still very high and in favour of the 2nd Respondent. Whatever angle one views the case of the appellants in respect of allegation of overvoting, it failed right from the embryonic stage.
This issue must also be resolved against the Appellants.

By the pleadings of the Appellants and the evidence led, it is apparent that there has been substantial compliance with the Electoral Act, 2022, in the conduct of the Kebbi State Governorship election of 18/3/2023. A return to an election will not be voided if it appears to any Court hearing the petition that challenges the return that there was

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substantial compliance with the provisions of the Electoral Act. The word used in the section is substantial, which does not carry the same clout as absolute compliance. See Per IRIKEFE, JSC in IBRAHIM V. SHAGARI & ORS (1983) LPELR-1412(SC) (PP. 8-9 PARAS. B-B).

SC/CV/1228A/2023 and SC/CV/1228B/2023 which are the cross-appeals are to abide by the judgment in the instant appeal.

The judgment of the lower Court stands and the appeal is hereby dismissed for lack of merit.