Omo-Agege Ovie Augustine & Anor v. Independent National Electoral Commission (INEC) & Ors

This appeal is against the Judgment of the Court of Appeal, sitting at Asaba in Appeal No: CA/AS/EP/GOV/DL/43/2023 delivered on 24th November, 2023 which said judgment affirmed the decision of the Governorship Election Petition Tribunal sitting in Asaba, Delta State in petition NO. EPT/DL/GOV/3/2023.

A summary of the facts leading to this appeal, as gleanable from the record of appeal, are that following the conduct of Governorship Election for Delta State on the 18th and 19th of March, 2023 the 2nd Respondent who was sponsored for that election by the 3rd Respondent was declared winner and returned elected having scored 360,234 votes being the majority of lawful votes cast to defeat 16 other contestants. The 1st Appellant who was sponsored by the 2nd Appellant came 2nd in the contest with 240, 229 votes. Dissatisfied with the declaration of the 2nd Respondent as the winner of the election, the Appellants filed a petition predicated on two (2) grounds to challenge the outcome of the election as follows:
(I) That the election was invalid by reason of corrupt

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practices or non-compliance with the provisions of the Electoral Act, 2022.
(ii) That the 2nd Respondent was not duly elected by majority of lawful votes cast at the election.

As a consequence, the Appellant at page 99 of the record prayed the Tribunal for the following:
(1) That the election and the return of the 2nd Respondent, Oborevwori Sheriff Francis Orohwedor of Peoples Democratic Party (PDP), the 3rd Respondent as winner of the election is invalid by reason of non- compliance or corrupt practices with the provisions of the Electoral Act, 2022.
(2) That the 2nd Respondent was not duly elected by majority of lawful votes cast at the governorship election held in Delta on 18th March, 2023.
(3) AN ORDER VOIDING OR ANNULLING the declaration and return of the 2nd Respondent, Oborevwori Sheriff Francis Orohwedor of Peoples Democratic Party (PDP), the 3rd Respondent, as the winner of the gubernatorial election conducted in Delta State on the 18th of March, 2023.
(4) AN ORDER VOIDING OR ANNULLING the certificate of return issued by the 1st Respondent to the 2nd Respondent, Oborevwori Sheriff Francis Orohwedor of Peoples Democratic

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Party, the 3rd Respondent as winner of the election and governor-elect of Delta State.
(5) AN ORDER declaring the 1st petitioner, Omo-Agege Ovie Augustine of the All Progressives Congress (APC), 2nd petitioner as the winner of the gubernatorial election conducted by the 1st Respondent in Delta on 18th March, 2023.
(6) Such orders or other orders the Honourable Tribunal may deem fit to make in all the circumstances of the case and in the interest of justice.
(7) Cost of this petition.

At the close of trial, the Tribunal on 29th September, 2023 delivered its judgment dismissing the petition for failure of the petitioners to prove their case. An appeal to the Court below predicated on 27 grounds of appeal out of which five issues were distilled for determination, was also unanimously dismissed.

Still dissatisfied, the Appellants have now approached this Court to exercise their right of final appeal vide a Notice of Appeal predicated on 16 grounds and filed on 3rd December, 2023 out of which learned senior counsel for the Appellants, Robert Emukpoeruo, SAN in the Appellant’s brief of argument filed on 14th December, 2023 distilled 5

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issues for determination as follows:
(1) Whether having regards to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned Justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellant did not prove the facts in support of their ground of non-compliance with the provisions of the Electoral Act, 2022 was perverse and occasioned a miscarriage of justice. (Grounds 1, 2, 3,4, 5, 6, 7 and 8).
(2) Whether having regards to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned Justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove the facts in support of their ground of corrupt practices, was perverse and occasioned a miscarriage of justice. (Ground 9 and 10).
(3) Whether having regards to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned Justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove their ground of

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the petition that the 2nd Respondent did not win the election with the majority of lawful votes cast and the consequential dismissal of the Appellant’s appeal with costs, was perverse and occasioned a miscarriage of justice. (Grounds 11, 12 and 16).
(4) Whether the decision of the learned Justices of the Court of Appeal to affirm the Tribunal’s decision striking out paragraphs 47, 48 and 50 of the Appellant’s petition was perverse and occasioned a miscarriage of justice. (Ground 13).
(S) Whether the decision of the learned Justices of the Court of Appeal to affirm the Tribunal’s decision, which dismissed the Appellants’ motion for leave to exceed the 40-page limit for final addresses and to hold that the issue was academic was perverse and occasioned a miscarriage of justice. (Grounds 14 and 15).

For the 1st Respondent, in its brief of argument filed on 19th December, 2023 Prof. Joseph Abugu, SAN nominated 6 issues for determination as follows.
(1)Whether the Court of Appeal erred in law when it held that the Appellants failed to make a credible case of over voting in 144 polling units as the evidence tendered did not manifestly

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disclose non-compliance with the provisions of the Electoral Act within the meaning of Section 137 and Paragraph 46(4) 1st Schedule of the Electoral Act 2022 and the Supreme Court decision in Oyetola Vs. INEC & Ors. (Grounds 1, 2, 3, 7 and 8).
(2) Whether the Court of Appeal erred in law when it held that the evidence tendered by the petitioners with respect to the requirements of Section 73 of the Electoral Act over 1333 polling units did not manifestly disclose non- compliance with the provisions of the Electoral Act within the meaning of Sections 73(2) and 137 of the Electoral Act and the Supreme Court decision in Oyetola Vs. INEC & Ors. (Grounds 4, 5 and 6).
(3) Whether the Court of Appeal erred in law when it held that the Appellants have not provided credible evidence of corrupt practices with respect of inflation of results in two Wards in Oshimili North Local Government Area and the recording of cancelled votes in Bowen Ward VI in Warri South Local Government Area within the meaning of Section 24(3), 47(3) and 51(2) of the Electoral Act. (Ground 9).
(4) Whether the Court of Appeal erred in law when it held that the Appellants

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failed to prove that the 2nd Respondent was not duly elected by the majority of lawful votes cast at the election. (Grounds 10, 11 and 12).
(5) Whether the decision of the Court of Appeal to affirm the Tribunal’s decision striking out paragraphs 47, 48 and 50 of the Appellants’ petition was perverse and occasioned a miscarriage of justice. (Ground 13)
(6) Whether it was not perverse and occasioned a miscarriage of justice for the Court of Appeal to affirm the Tribunal’s dismissal of the Appellants’ motion to exceed the 40-page limit for final addresses and to hold that the issue was in any event academic. (Grounds 14 and 15).

On the part of the 2nd Respondent, Damian D. Dodo, SAN canvassed 5 issues for determination as follow:
(1) Whether having regard to the pleadings and evidence adduced before the Tribunal, the lower Court was right in affirming the Tribunal’s decision that the Appellants failed to Prove their allegation of non-compliance with the provisions of the Electoral Act 2022 and how it affected the result of the election? (Grounds 1, 2, 3, 4, 5, 6, 7 and 8).
(2) Whether having regard to the pleadings and

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evidence adduced before the Tribunal, the lower Court was right in affirming the Tribunal’s decision that the Appellants failed to prove their allegation of corrupt practices? (Grounds 9 and 10).
(3) Whether having regard to the pleadings and evidence adduced before the Tribunal, the lower Court was right in affirming the Tribunal’s decision that the affirming the Tribunal’s decision that the Appellants failed to proof their allegation that the 2nd Respondent did not score the majority of lawful votes cast at the election (Grounds 11, 12 and 16).
(4) Whether the Court below was right in affirming the decision of the Tribunal striking out paragraph 47, 48 and 50 of the Appellants petition (Ground 13).
(5) Whether the Court below was right in affirming the Tribunal’s decision refusing Appellants’ application for leave to exceed the 40-page limit for final written address by relying on a 20-page addendum filed along with the Appellants final written address at the Tribunal. (Ground 14 and 15).

The 3rd Respondent’s brief of argument filed on 18th December, 2023 was settled by Ekeme Ohovoriole, SAN. Learned senior counsel also

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formulated 5 issue for determination as follows:
(1) Whether the lower Court rightly affirmed the Tribunal’s decision that the Appellants failed to prove that the election was invalid by reason of non-compliance with the provisions of the Electoral Act. (Ground 1, 2, 3, 4, 5, 6, 7 and 8).
(2)-Whether the lower Court was right when it affirmed the Tribunal’s decision that the Appellants failed to prove that the election was invalid by reason of corrupt practices. (Grounds 9 and 10).
(3) Whether the lower Court was right when it affirmed the Tribunal’s decision that the Appellants failed to prove the allegation that the 2nd Respondent did not score the majority of lawful votes cast at the election. (Grounds 11, 12 and 16).
(4) Whether the lower Court was right when it upheld the Tribunal decision to strike out paragraphs 47, 48 and 50 of the Appellants petition for being wrongly pleaded by the Appellants under the ground of corrupt practices.
(5) Whether the lower Court was right when it affirmed the Tribunal’s dismissal of the Appellants’ motion for leave to exceed the 40- page limit for final written addresses and to

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rely on an additional addendum filed alongside the final written address.

The Appellants filed Appellants Reply briefs to the Respondents’ briefs of Argument as follows:
(1) Appellants’ reply brief of argument to the 1st Respondent’s brief of argument- filed 22nd December, 2023.
(2) Appellants reply brief of argument to the 2nd Respondent’s brief of argument- filed on 23rd December, 2023.
(3) Appellants’ reply brief of argument to the 3rd Respondent’s brief of argument-filed 22nd December, 2023.

In determining the appeal, I shall be guided by the issues as canvassed by learned senior counsel for the Appellants. Issues 1, 2 and 3 shall be considered together while issues 4 and 5 shall be thereafter considered separately if need be. The three (3) issues to be taken together which the arguments overlap are as follows:
(1) Whether having regards to the pleading, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned Justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove the facts in support of their ground

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of non-compliance with the provisions of the Electoral Act 2022 was perverse and occasioned a miscarriage of justice.
(2) Whether having regards to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove the facts in support of their ground of corrupt practices, was perverse and occasioned a miscarriage of justice.
(3) Whether having regards to the pleadings, the evidence, the admissions made by the 1st Respondent and the applicable laws, the decision of the learned justices of the Court of Appeal, which affirmed the Tribunal’s decision that the Appellants did not prove their ground of the petition that the 2nd Respondent did not win the election with the majority of lawful votes cast and the consequential dismissal of the Appellants’ appeal with costs, was perverse and occasioned a miscarriage of justice.

Arguing these issues, learned senior counsel for the Appellants submitted that contrary to the concurrent findings of the two lower Courts which failed to give

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effect to the provision of Section 137 of the Electoral Act, 2022, paragraph 46(4) of the First Schedule to the Electoral Act, 2022 and misapprehended the case of Oyetola Vs. INEC (2023)11 NWLR (Pt.1894)125, the Appellants led evidence in support of their grounds that the election was invalid by reason of non-compliance with the provisions of Section 73(2) of the Electoral Act in 1,333 polling units, in that, the presiding officers in those polling units, prior to the commencement of the election, failed to fill Forms EC25B, EC25 B(1) and EC4A as required by the Act and also non- compliance with the provision of Section 51(2) in 144 poling units where there were over-voting.

Learned senior counsel contended that in the documents admitted in evidence as Exhibits 3P01-3P03728 which were equally tendered by the 1st Respondent and admitted in evidence as Exhibits 3RF1-3RF4998, the serial numbers of result sheets and those of BVAS machines are not recorded at all for 1,110 polling units. That the absence of these serial numbers of result sheets and BVAS machines on the prescribed forms for 1, 110 polling units sustains the allegation of non-compliance with

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the provision of Section 73(2) of the Act.

Learned senior counsel submitted that it was perverse for the Courts below to discountenance the said Exhibits 3P01-3P03728 (FORMS EC25B, EC407, EC40B and EC4OC) as if they were not legal evidence when in fact, they were in themselves the best evidence of the non-compliance with the provision of section 73(2) of the Act.

On non-compliance with the provision of Section 51(2) of the Act, learned senior counsel relied on the authorities of Clement Vs. Iwuanyanwu (1989)3 NWLR (Pt.107)39 and APC Vs. Obaseki (2022)2 NWLR (Pt.1814)273 to submit that the facts and circumstances of this case are distinguishable from the case of Oyetola Vs. INEC (supra). That in this case, there is no conflict in the BVAS repor, obtained from the results transmitted from the BVAS machines to the back-end server, tendered by the Appellants and the 1st Respondents in the 144 polling units to warrant the tendering of the BVAS machines as stated in Oyetola’s case. That the BVAS report and voters’ registers admitted in evidence as Exhibits “3PJ1”, “3PJ2” and “3R1” manifestly disclosed over-voting in 109 polling units. That the total

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number of votes liable to be cancelled as a consequence of over-voting is 4,689 for the Appellant and 35,399 for the 2nd and 3rd Respondents.

Learned senior counsel made a table showing that the scores deductible from both the Appellants and the 2nd and 3rd Respondents due to non-compliance with requirements of Sections 73(2) and 51(2) of the Electoral Act, 2022 are 24, 218 votes and 144, 979 votes respectively.

Learned senior counsel for the Appellants further contended that there were instances of unlawful inflation of votes in Ward 8 (Ibusa v) and Ward 9 (Okpanam) of Oshimili North Local Government Area of Delta State. That a total of 11, 045 votes were infused into the total score of the 2nd and 3rd Respondents. Also, that cancelled votes in all 33 polling units of Ward 6(Bowen) of Warri South Local Government Area in Form EC8B resurfaced in Form EC8C during final collation. Learned counsel placed reliance on, as well as sought this Court’s endorsement of the case of Okoye vs. Charles & Ors. (2015) LPELR-40664(CA) to contend that the votes collated from Bowen Ward 6 are invalid votes, same having been cancelled in Form FC8B for

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non-accreditation, thus must be excised from the total votes of the parties.

Finally, learned senior counsel submitted that the two lower Courts acted perversely when they held that the Appellants failed to lead evidence that the 2nd Respondent did not score majority of lawful votes cast at the election. That the ground that the 2nd Respondent was not elected by majority of lawful votes cast at the election is tied to the invalid votes garnered from non-compliance with the provisions of the Electoral Act 2022 in consequence of over-voting, lack of prior recording of serial numbers of sensitive materials in prescribed forms, inflation of votes and collation of cancelled votes. He therefore urged on the Court to resolve the issues in favour of the Appellants.

On the part of the Respondents, it was variously submitted on the allegation of over-voting that failure of the Appellants to tender the BVAS machines and voters registers from all the 144 disputed polling units to demonstrate their case of over-voting and non-accreditation was fatal to their case. Learned counsel for the various Respondents on this score relied on the authorities of

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APC Vs. PDP & Ors. (2020)17 NWLR (Pt.1754), 245; Oyetola Vs. INEC (supra) to submit that the two Court below were right to discountenance the Appellants’ allegation of over-voting, same having not been sufficiently demonstrated.

On the allegation that votes recorded in 1,333 polling units were invalid by reason of failure on the part of the presiding officers to prior record in the forms prescribed by the 1st Respondent the serial numbers of result sheets, serial numbers of BVAS machines and other sensitive materials used for the conduct of the election, learned senior counsel for the various Respondents submitted that Section 73(2) is not a mandatory provision which must be strictly complied with to give validity to the result of the election at a polling unit. That the Section must be read together with the provision of Section 60 of the Electoral Act which provides that a presiding officer shall count the votes at the end of the polls and enter the votes scored by each of the candidates in Form EC8A; the Form EC8A shall then be signed and stamped by the presiding officer and countersigned by the candidates or their polling agents. That it is this counting

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that determines who wins the votes of the polling unit and the election cannot be invalidated by reason of failure to record the documents used for the election in the prescribed forms before the commencement of the election. That the intendment of the Electoral Act 2022 is not to make the prior filling of Form, EC25B or EC40A the determinant of valid votes cast at the polling unit.

Specifically, learned senior counsel for the 2nd Respondent, D. D. Dodo, SAN submitted that the provision of Section 73(2) of the Electoral Act, 2022 cannot be said to have been violated where the columns contained in the prescribed forms have been filled. That Forms E25B has no column for entry of serial numbers of results sheets and BVAS machines. That it was upon the Appellants realizing the futility of their allegation, set up another case on appeal that the serial numbers of result sheets and the serial numbers of BVAS machines are. not recorded at all for 1,110 polling units and not the entire 1,333 polling units.

Learned senior counsel submitted further that the Appellants having conceded that Form EC40A was filled, the question of whether the recording was done

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prior to or subsequent to the election is a matter of proof which only persons present at the polling units before the commencement of the election when the forms were required to be filled can give evidence. That the Appellants having failed to call the evidence of eyewitnesses who witnessed the failure of the presiding officers at the 1,333 disputed polling units to, prior to the election, input the relevant electoral information into the prescribed forms but rather relied on the evidence of PW1 and PW2 who were not present at the 1,333 polling units. That the evidence of PW1 and PW2 amounted to hearsay evidence which is not admissible. On this point counsel relied on the case of Ladoja vs. Ajimobi (2016) LPELR-40658(SC) in urging this Court to discountenance the evidence of PW1 and PW2.

On the allegation of inflation of votes and cancellation of votes, learned counsel for the Respondents submitted that the evidence of PW1 and PW2 who were not polling unit agents and who were not present when the alleged votes were being inflated is incapable of establishing Appellants’ allegation of inflation of votes beyond reasonable doubt. That by virtue of the

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provision of Paragraphs 43 and 96 of Independent National Electoral Commission (INEC)’s Regulations and Guidelines for the Conduct of Elections 2022, where there is cancelation of votes, the presiding officer is to make a report in writing to the collation officer explaining the reason for the cancelation and the collation officer shall then complete Form EC409 in respect of the polling unit where the election was cancelled. That in this case, the Appellants failed to demonstrate that the result of the polling units in Ward 6 [Bowen] were actually cancelled and at what point they were cancelled.

On the whole, learned senior counsel for the various Respondents urged this Court to resolve the issues in favour of the Respondents and dismiss the appeal.

My Lords, the crux of the Appellants’ arguments in issues 1, 2 and 3 is summarized in their grounds of petition that, (a) the election was invalid by reason of corrupt practices, to wit: inflation of votes and computation of cancelled votes, as well as, non-compliance with the provisions of Sections 73(2) of the Act in 1,333 polling units and 51(2) of the Act in 144 polling units (b) that the

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2nd Respondent was not duly elected by majority of lawful votes cast at the election.
The Appellants pleaded non-compliance with the provision of Section 73(2) of the Electoral Act, 2022 in paragraphs 431-43.9 of their petition. I shall herein reproduce some of the relevant paragraphs of the petition as follows:
“43.1-Your petitioners aver in addition to the foregoing issue of over-voting that the purported elections in 1,333 polling units listed hereunder was purportedly conducted without the presiding officers’ prior recording in the forms prescribed by the 1st Respondent, of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by the 1st Respondent for the conduct of the election at the Delta State governorship election of 18th March, 2023.
43.2- The forms prescribed by the 1st Respondent of which there must be prior recording as aforesaid are the Forms EC25B, Electoral material Receipt/Reverse Logistics Forms EC25B(1) polling unit materials Receipt/Distribution and Forms EC40A, ballot paper account and verification statement.
43.3- The conduct of the

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election in any of the polling units of the Delta State without prior recording in the Forms EC 25B, EC25B(1) and EC 40A prescribed by the 1st Respondent for the recording of the quantity, serial numbers of result sheets, serial numbers of ballot papers and other sensitive electoral materials rendered the election in the polling units invalid and liable to be cancelled.
The Appellants have argued strenuously that the two lower Courts failed to appreciate that aforementioned forms admitted in evidence as Exhibits 3P01-3P03728 are the best and only evidence of whether or not there was compliance with Section 73(2) of the Electoral Act in 1,333 polling units.
My Lords, Section 73(2) of the Electoral Act, 2022 provides that:
“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 the result sheets, ballot papers and other sensitive electoral materials made available by the commission for the conduct of the election shall be invalid”
The position of the law is trite that where the words of a statute are clear and not ambiguous, effect

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should be given to them and there is need to avoid absurdity. See Udo Vs. Orthopedic Hospitals Management Board (1993)7 SCNJ 436 at 443; City Engineering (Nig.) Limited v. Nigerian Airport Authority (1999)6 SCNJ 262; Kassim Vs Sadiku & Ors. (2021) LPELR-55334 (SC).
It is equally settled that the use of the word “shall” in a legislation conjures mandatoriness or direction, as the case may be. See Aliyu Vs. Namadi & Ors. (2023) LPELR-59742(SC); Katto Vs. C.B.N (1991)9 NWLR (Pt.214)126; Tabik Investment Limited Vs. G.T.B (2011) LPELR-3131 (SC) Nnonye Vs. Anyichie (2005)2 NWLR (Pt.910) 623.
In view of the foregoing, I made bold to say that the language used by the draft man in Section 73(2) of the Act is clear and unambiguous. There is no need going outside the words used in search of an interpretation. And contrary to the submissions of learned senior counsel for the various Respondents, the word “shall” used in that Section connotes mandatorinness. It therefore means that where it is established that an election was conducted without prior recording in the forms prescribed by Independent National Electoral Commission (INEC) of the quantity, serial

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numbers and other particulars of result sheets, ballot papers and other sensitive materials deployed for the conduct of that election, as prescribed by Section 73(2), such election in the affected polling units shall be invalid. It is a strict liability provision, subject however to the provision of Section 135(1) of the Act which mitigates invalidation of elections on the ground of substantial compliance.

That being said, when this appeal was brought before this Court, we requested for the disputed 1,333 forms for physical examination and were provided with 1, 314 forms across the 26 Local Government Area of Delta State. We painstakingly inspected them and discovered that 942 of them were properly filled with the requisite information while 372 forms were not so properly filled. The conclusion deducible therefrom was that the forms in which the entries were not so properly made was not a deliberate act and the election cannot be affected as there was substantial compliance.

The position of the law is well settled that where a petitioner alleges that the election is invalid because of non- compliance with the provisions of the Electoral Act, he has

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the burden of showing that the non-compliance substantially affected the result of the election. Section 135(1) of the Electoral Act, 2022 provided that: “An election shall not be liable to be invalidated by reason of non-compliance 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”. See Emmanuel Vs. Umana & Ors. (2016) LPELR-40037 (SC); Maku Vs. Al-Makura & Ors. (2016) LPELR-48123 (SC); Yahaya & Anor. Vs. Dankwanbo (2016) LPELR-48364(SC).

On the question, whether the entries on the forms were made prior to or subsequent to the election, I agree with the observation of the Court below at page 2932 of the record where the Court stated that:
“I agree with the various submissions of the learned counsel for the Respondents that oral evidence is required to establish the allegation of non- compliance herein as merely examining the adduced documents will not disclose whether the entries were made prior to the commencement of the elections or

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not”
In the circumstance, the Appellants having failed to call oral evidence of any person who witnessed the forms being filled, whether before the commencement or after the election, what stands out for the Court is that there is a presumption that the forms were filled prior to the commencement of the election.
Section 168(1) of the Evidence Act, 2011 provides that “when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. See Torri Vs. National Park Service of Nigeria (2011) LPELR-8142 (SC); (2011) 13 NWLR (Pt.1264)365; Adama Vs. Kogi State House of Assembly (2019) LPELR-47424 (SC).

In this case, as already stated, it is clear that from the 942 forms found to have been duly filled, there was substantial compliance with the provision of Section 73(2) of the Act such that even if the votes covered in the 372 forms are deducted, it would not affect the margin of lead.

On the allegation of over-voting, this Court has in its various decisions enumerated the essential document which must be put in evidence for the allegation to

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be proved, to wit: (i)-the voters register for the affected polling units to show the number of registered voters; (ii)- the BVAS machines used in those polling units to show the number of accredited voters, and (iii) the result sheets of the disputed polling units in Forms EC8AS to show the number of votes cast at the pulling units. The Court would then have the opportunity of comparing the number of votes recorded in the Forms EC8AS with the number of accredited voters in the BVAS machines to ensure that those figures tally and do not exceed the numbers on the register of voters. In the case of Oyetola & Anor. Vs. INEC & Ors. (2023) LPELR-60392 (SC); (2023)11 NWLR (Pt.1894)125 which I had the privilege of sitting in the panel, I stated that failure to tender the above set of documents would be fatal to any effort to prove over-voting. See also APC VS. PDP & Ors (2020) 17 NWLR (Pt.1754) 425 at 435.

In this case, the Appellants relied on their report of the examination of the Independent National Electoral Commission (INEC) database or back-end server said to contain information on the number of accredited voters and the number of votes cast in

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a polling unit transmitted by the BVAS to the said back-end server during the election. They failed to tender the vital documents aforestated for empirical prove of the case of overvoting in 144 polling units of Delta State. Further to their failure to tender the essential documents required to prove their case, they relied on the evidence of PW1 who did not witness firsthand what transpired in any of the polling units where the alleged over-voting occurred. He never examined the BVAS machines and the voters registers of each of the 144 polling units to confirm that there was non-accreditation of voters and over-voting before he wrote his Expert Analysis Report. His evidence was clearly unreliable and the two Courts below rightly discountenanced same.
In view of the already established position of this Court adumbrated above in Oyetola’s case, it is indisputable that the Appellants did not prove their allegation of over-voting having not afforded the Court the opportunity to examine the BVAS machines in the disputed polling units and compare the number of accredited votes therein with the number of votes cast and recorded in Forms EC8AS which must not

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exceed the number of registered voters in the register of voters.

On the allegation of corrupt practices, viz inflation of votes in Ward 8 (Ibusa v) and Ward 9 (Okpanam) of Oshimili North Local Government to the tune of 11,045 unlawful votes and recording of cancelled votes in Ward 6 (Bowen) of Warri South Local Government Area, the position of the law is well settled that where crime is alleged in an election petition, such criminal element must be proved beyond reasonable doubt. See Okon Vs. PDP & Ors. (2023) LPELR-60099 (SC); Ndakene Vs. Adamu & Ors. (2023) LPELR-59972 (SC); Waziri Vs. Geidam (2016) LPELR-40660 (SC).
In the case of Omisore & Anor. Vs. Aregbesola & Ors. (2015)LPELR-24803 (SC) where I was also privileged to sit on the panel, this Court made a clear distinction between allegations seeking to invalidate the result of an election on grounds of non-compliance with the provisions of the Electoral Act and that seeking the nullification on allegation of corrupt practices. In that case, this Court, per, John Afolabi Fabiyi, JSC stated emphatically that “allegation of corrupt practices touch on the realm of criminality. Same

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must be proved beyond reasonable doubt”. In my contributory judgment, I emphasized that
“where allegations of corrupt practices are made, the petitioner making these allegations must lead cogent and credible evidence to prove them beyond reasonable doubt because they are in the nature of criminal charges. Being criminal allegations, they cannot be transferred from one person to another. It is personal”.
thus it must be proved as follows:
(1)-That the respondent whose election is being challenged personally committed the corrupt acts or aided, abetted, consented or procured the commission of the alleged corrupt practices.
(2)-That where the alleged act was committed through an agent, that the agent was expressly authorized to act in that capacity or granted authority; and
(3)-That the corrupt practice substantially affected the outcome of the election and how it affected it.
See Aregbesola Vs. Oyinlola (2011) 9 NWLR (Pt.1253)45S at 557, Audu Vs. INEC (No.2) (2010)13 NWLR (Pt.1212)456 at 544.” I shall hold the same view in this case.

In this case, it is on record that both PW1 and PW2 on whose evidence the Appellants

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relied on to allege inflation of votes were neither polling agents nor had in any way witnessed when the alleged votes were being inflated. I agree with learned senior counsel for the Respondents that the evidence of the Appellants’ witnesses were incapable of establishing the allegation of inflation of votes beyond reasonable doubt.
Same would be said about the allegation of recording of cancelled votes at Ward 6(Bowen) where there is no evidence of report of cancellation written by the presiding officers to the Ward collation officer explaining the nature of the problem which warranted the cancellation and an evidence of Form EC40G filled by the Ward collation officer authenticating the cancellation as prescribed by Paragraphs 43 and 96 of the Regulation and Guidelines for the Conduct of Elections 2022. It is not enough to allege that elections were cancelled without furnishing the Court with proof that such cancellation was duly documented as required by law. The two Courts below were right to discountenance the Appellants allegations of corrupt practices, same having not been proved beyond reasonable doubt.
On the whole, the Appellants are

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unable to discharge the burden placed on them that the election was invalid by reason of non-compliance with the provisions of the Electoral Act and Corrupt Practices or that the 2nd Respondent was not duly elected by majority of lawful votes cast at the election. To this end issues 1, 2 and 3 are hereby jointly resolved against the Appellants and in favour of the Respondents.

Having resolved issues 1, 2, 3 together against the Appellants, which said issues are the main thrust of the Appellants’ appeal, issues 4 and 5 have become academic and will serve no utilitarian value to the Appellants. It has become spent and spending time on them would amount to an exercise in futility which the Courts, by a legion of authorities, have been admonished to desist from. See PDP & Anor Vs. Jarigbe & Anor. (2021) LPELR-55936 (SC); Moses & Anor. Vs. Giadom & Ors. (2021) LPELR-55887 (SC); Sanwo-Olu & Anor. Vs. Awamaridi & Ors. (2019) LPELRR-50828 (SC); Agbakoba Vs. INEC & Ors. (2008) LPELR-232(SC); Ardo Vs. INEC & Ors. (2017) LPELR- 41919 (SC); (2017)13 NWLR (Pt.1583)450.
in the case of Agbakoba Vs. INEC (supra) this Court, per

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Christopher Mitchell Chukwuma-Eneh, JSC explained that: –
“an action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue in appeal has become defunct it does not require to be answered or controvert about and leads to making of bare legal postulations which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state it has no practical value to anybody and so also, a suit in that state has none particularly, and practically to the plaintiff”.
All I am saying here is that the Appellants’ arguments in their issues 4 and 5 regarding perversity or otherwise of the decision of the lower Courts to strike out their paragraphs 47, 98 and 50 of the petition and also questioning the discretion of the tribunal dismissing their application for leave to exceed the 40-page limit for their final written address, do not have any live matter for which this Court should adjudicate upon. This Court shall not

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expend valuable judicial time and energy on such academic exercise. See also Abraham Vs. Akeredolu (2018) 10 NWLR (Pt. 1628) 592.

On the whole, the main issues upon which this appeal was hoisted having been resolved against the Appellants, this appeal fails and is hereby dismissed for lacking in merit. The Judgment of the Court of Appeal delivered on 24th November, 2023 which upheld the finding of the trial Tribunal is hereby affirmed, I make no order as to cost.

Appeal Dismissed.