DAME PAULINE K. TALLEN & ORS V. DAVID JONAH

JANG & ORS

CITATION:(2011) LPELR-9231(CA)

In The Court of Appeal(Jos Judicial Division)

On Saturday, the 10th day of December, 2011

Suit No: CA/J/EP/GOV/238/2011

Before Their Lordships

CLARA BATA OGUNBIYI Justice, Court of AppealMASSOUD ABDULRAHMANOREDOLA

Justice, Court of Appeal

PHILOMENA MBUA EKPE Justice, Court of Appeal

Between

1. DAME PAULINE K.

TALLEN

2. ARC. PAM DUNG

GYANG

3. LABOUR PARTY (LP)

Appellants

And

1. DAVID JONAH JANG

2. IGNATIUS LONGJAN Respondents

1

3. PEOPLES

DEMOCRATIC PARTY

(PDP)

4. INDEPENDENT

NATIONAL ELECTORAL

COMISSION

RATIO DECIDENDI

1 PRACTICE AND PROCEDURE - ADDRESS

OF COUNSEL: Whether the address of

counsel can take the place of evidence

"Needless to restate the well standing

principle of law that an address of counsel no

matter how sound, convincing or brilliant, it

can never take the place of evidence. I am

afraid but must clearly and emphatically say

that the Appellants counsel had failed to

address the need to have ensured the link

which was only possible through the witnesses

who testified on their behalf and no more."

Per OGUNBIYI, J.C.A (P. 29, paras. A-C) -

read in context

2 EVIDENCE - ADMISSIBILITY OF

DOCUMENTS: Whether there is a difference

between admissibility of documents and

ascription of probative value to same

"It is relevant to restate that there is a world

2

of difference between admissibility of

documents and ascription of probative value

to same. The Court or Tribunal would only

ascribe probative value to documents that are

properly demonstrated before it, by parties

laying the nexus between such documents to

the evidence of their witnesses which the

petitioners have failed to do in the instant

case." Per OGUNBIYI, J.C.A (P. 43, paras.

E-G) - read in context

3 ELECTION PETITIONS - ALLEGATION OF

NON-COMPLIANCE: The burden of proof on

a party who alleges the existence of violence,

other corrupt practices, and non-compliance

with the provisions of Electoral Act in conduct

of election

"Also in Buhari v. Obasanjo (2005) 2 NWLR

(Pt. 910) 241 at 399 the apex Court held and

said: "A petitioner must first allege and

adduce some evidence of the existence of

violence and other corrupt practices in an

election to subject the election to the scrutiny

of the Court. Where no allegation is made

against an election and no evidence is

adduced on the conduct of the election, the

presumption of regularity ensures in its

favour." Relevant also to the determination of

this issue is the provision of Section 139 (1)

of the Electoral Act 2010 (as amended) which

provides thus: "139(1) An election shall not

3

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." The

above provision has been given judicial

interpretation in a number of cases including

Buhari v. Obasanjo (supra) where the apex

Court per Ejiwunmi JSC, held and said: "...

The onus is on the appellants to establish

first, substantial non-compliance and

secondly, that it did or could have affected the

result of the election. It is after the Appellants

have established the foregoing that the onus

would have shifted to the Respondents to

establish that the result was not affected.'' Per

OGUNBIYI, J.C.A (Pp. 41-42, paras. D-F) -

read in context

4 EVIDENCE - BURDEN OF PROOF: On whom

lies the burden of proof and when is it

discharged

"The law is well pronounced and trite that he

who asserts has the burden to prove. There

can only be the shifting of the burden

therefore after the initial burden of proof must

have been discharged. See the case of N.B.

Ltd v. D.C. Holdings Ltd (2004) 13 NWLR 436

at 462 and Chime v. Ezeq (2010) 6 EPR 353.

4

At this stage therefore, the Respondent will

have no burden to discharge unless and until

the Petitioner establishes a prima facie case

then the burden would shift onto the

Respondent to rebut in a civil matter. To the

contrary however, the burden remains

constant and does not shift where the

allegation is of a criminal nature in which case

it must remain with the Petitioner to prove

the offence beyond reasonable doubt." Per

OGUNBIYI, J.C.A (Pp. 19-20, paras. F-B) -

read in context

5 EVIDENCE - BURDEN OF PROOF: Whether

a party who asserts must succeed on the

strength of his case

"Moreover and with the legal position that a

party who asserts must succeed on the

strength of his case and not the weakness of

the defence, same stands to be interpreted

that where the Petitioners/ Appellants had

failed to make out their case on credible

admissible evidence, there is no burden placed

on the Respondent who would not need to call

any witness, in the circumstance." Per

OGUNBIYI, J.C.A (P. 38, paras. C-E) - read in

context

6 EVIDENCE - CROSS-EXAMINATION:

Whether evidence elicted under cross-

5

examination can constitute evidence in

support of the case or defence of a party

"The case of Akomolafe & Anor. V. Guardian

Press Ltd & 3 Ors. (2010)1 SC (Pt. 1) 58 at 74

is apt wherein W.S.N. Onnoghen JSC

pronounced on evidence adduced under cross

examination and which could constitute

evidence in support of the case or defence of

that party." Per OGUNBIYI, J.C.A (P. 39,

paras. E-G) - read in context

7 EVIDENCE - DOCUMENTARY EVIDENCE:

The duty of a party with regard to documents

tendered by him

"the law is clear as pronounced in the cases

cited earlier in this judgment that a party

relying on bundles of documents in proof of

his case must specifically relate such

documents to that part of his case in respect

of which the bundles of documents were

tendered. This responsibility does not fall on

the Court as if would be aiding and conducting

a case on behalf of a party who has failed to

discharge the onus placed on him." Per

OGUNBIYI, J.C.A (P. 29, paras. C-E) - read in

context

8 COURT - DUTY OF COURT: Whether it is

permitted for the Court, on its own and in the

comfort of its recess, to engage in sorting out

6

a party's case

"It is not permitted by our system of

adjudication that the Court should on its own

and in the comfort of its recess engage in

sorting out a party's case for purpose of sound

footing." Per OGUNBIYI, J.C.A (P. 22, paras.

F) - read in context

9 COURT - JUDGE: Whether it is right for a

judge to do in the recess of his chambers,

what a party is required to do in canvassing

his case in the open court

"This Court per Salami JCA (as he then was)

for instance in the case of Naga v. Registered

Trustees Recreation Club (2004) FWLR (Pt.

190) 1360 had this to say: "The preservation

of the principle is that it is infraction of

derogation of the rule of fair hearing for the

judge to do in the recess of his chambers,

what a party is required to do in canvassing

his case in the open court. The Court by so

acting has only sacrificed its impartiality. It

has equally turned the whole proceedings

from adjudicatory to investigatory. It is

therefore, not the business of the Court to

wield through exhibit 1, the constitution of

the defendants to ascertain which provision (if

any) assists or supports the plaintiff ..." Also

in the case of Onmeje v. Otokpo (1999) 1

NWLR (Pt. 600) 578 at 5 this Court per

7

Chukwuma-Eneh, JCA (as he then was) held

and said: "The other question for

consideration relates to the Tribunal's refusal

to examine and use Exhibits P22 and P23

wherefore, learned Appellants' counsel has

submitted that this was done under

misconception of the case of Oribudo 4 Ors. v.

Akibu (1992) 7 SC 60 at 62. These exhibits

were ballot papers etc. For Akpoge-Ogbilolo

ward and were tendered by the PW1 in what

looked like dumping them on the Court as no

attempt was made by evidence as to what use

the court was to make of them hence the

Tribunal found that apart from numbering it

with these exhibits, if was not its function to

"examine the voters register, the ballot

papers etc to see whether there were over

voting or other irregularities". It is not the

duty of the Court to go on a voyage of its own

discovery. No authority was cited to the

petitioners stand in this respect. It is my view

that having tendered these exhibits, it was

incumbent on the Petitioner to lead evidence

as to the use to be made of then. Without

taking that step, the tribunal was perfectly

right in refusing to be drawn into examining

them." Per OGUNBIYI, J.C.A (Pp. 25-26,

paras. C-F) - read in context

10 ACTION - PLEADINGS: The rule of pleadings

that pleadings not supported by evidence are

8

deemed abandoned and its exceptions

"The learned senior counsel cited plethora of

authorities wherein pleadings not supported

by evidence are deemed abandoned as clearly

pronounced in the case of Ojoli v. Kamalu

(2005) 18 NWLR (Pt. 958) 523 per Tobi JSC.

Heavy reliance was also made on the case of

Aregbesola v. Oyinlola (2010) 9 NWLR (Pt.

1253) 458 at 596 amongst others which all go

to confirm that pleadings without evidence is

deemed abandoned. The question of pleadings

without evidence is not on issue of contention

but rightly so and is trite law in nature. The

question to pose however whether the 4th

Respondent indeed did abandon its pleadings

as is alleged by the Appellants' counsel and in

line with the authorities he cited? However

and despite the general acceptable principle of

law regarding pleadings as rightly submitted

by the learned Appellants' counsel the end of

the matter is not always foreclosed with the

general rule. In other words as rightly also

submitted by the learned senior counsel to the

1st - 3rd Respondents there are also

exceptions to the general rule which are

relevant of note where the following

circumstances apply as: (a) Evidence led

during cross examination on issues joined is

as valid and authentic as evidence procured

from examination in chief. (b) Evidence

elicited from a plaintiff's witness under cross

9

examination forms part of the case for the

defence. The defence can therefore

legitimately rely on such facts in establishing

his case. (c) A party seeking nullification of an

election must succeed on the strength of his

case and not on the weakness of the

Respondents case. See the case of Gaji v.

Paye (2003) 8 NWLR (Pt. 823) 583 at 590

wherein Edozie JSC held and said: "Evidence

procured from cross examination is as valid

and authentic as evidence procured from

examination in chief. Both have the potency

of relevancy, and relevancy is heart of

admissibility in the law of evidence. Where

evidence is relevant, it is admissible and

admitted whether it is procured from

examination in chief or cross examination."

Also in Ayoola v. Yahaya (2005) 7 NWLR (Pt.

923) 122 at 140 the apex Court further said:

"Evidence elicited from a plaintiff's witness

under cross examination forms part of the

case of the defence. Therefore where counsel

by skillful application of the weapon of cross-

examination is not only able to destroy the

case of the defence, he can legitimately rely

on such facts in establishing his case." Per

OGUNBIYI, J.C.A (Pp. 36-38, paras. D-A) -

read in context

11 EVIDENCE - PRESUMPTION OF LAW: The

presumption as to public document

10

"The documents are public in nature and

being statutory forms the Tribunal is bound to

look at them for purpose of recognizing them

as such, and therefore obviously speak for

themselves in that context only. By the

provision of Section 150 of the Evidence Act,

the presumption of their correctness and

regularity is made." Per OGUNBIYI, J.C.A (P.

23, paras. C-D) - read in context

12 EVIDENCE - PRESUMPTION OF LAW: The

presumption as to election result and how the

presumption can be rebutted

"In the case of Buhari v. INEC (2008) 19

NWLR (Pt. 1120) 246 at 354. The apex Court

per Niki Tobi held and said: "Election results

are presumed by law to be correct until the

contrary is proved. It is however a rebuttable

presumption. In other words, there is a

rebuttable presumption that the result of any

election declared by a returning officer is

correct and authentic and the burden is on the

person who claims the correctness and

authenticity of the return to rebut the

presumption." The burden is therefore

squarely on the Petitioners/ Appellants to

rebut this presumption by credible and cogent

evidence. This requirement has been well

pronounced in plethora of judicial authorities

for example in the case of Yar'adua v. Barda

(1992) 3 NWLR (Pt. 231) 638 at 642 wherein

11

it was held that: "The only way a petitioner

can question the lawfulness of the votes cast

at an election is to tender in evidence all the

forms used and call witnesses to testify as to

the misapplication of the votes scored by

individuals. For example, if a petitioner wants

to prove over-voting, he needs a witness to

State where the over-voting took place. The

documentary evidence of over-voting will be

the voter's register showing accreditation and

the form EC8A. Those pieces of documentary

evidence can be tendered from the bar during

pre-hearing or during the course of the trial.

The witness giving oral evidence would refer

to the specific exhibits already tendered to

cement the case." Per OGUNBIYI, J.C.A (Pp.

23-24, paras. G-F) - read in context

13 EVIDENCE - PRESUMPTION OF LAW: The

presumption as to election result declared by

INEC

"The position of the law as rightly submitted

by the learned 1st - 3rd Respondents' counsel

is that the result of any election that is

declared by INEC is deemed authentic and

genuine. It is the duty of the person who is

asserting the contrary therefore to prove that

the result so declared is not authentic or

genuine. The presumption of regularity has

been clearly elucidated in the case of Audu v.

INEC (2010) 13 NWLR (Pt. 1212) 431 at 522

12

wherein this Court held and said: "There is a

presumption that the result of any election as

declared by the electoral body is correct and

authentic, and the onus lies on the person

who denies the correctness and authenticity

to rebut the presumption with credible

evidence" (Ezea Zodoziako v. Okeke (2005)

16 NWLR (Pt. 952) 612, Onye v. Kena (1999)

4 NWLR (Pt. 598) 198: … Mohammed v.

Mohammed (2008) 6 NWLR (pt. 1082) 73.

Chime v. Onyia (2009) 2 NWLR (Pt. 1124)

1)." Per OGUNBIYI, J.C.A (P. 41, paras. B-F) -

read in context

CLARA BATA OGUNBIYI, J.C.A (Delivering the

Leading Judgment): This is an appeal against the

judgment of the Plateau State Governorship

Election Tribunal, sitting in Jos (coram Hon.

Justices Joseph Jella, Olayinka D. Afolabi, Benson

Ogbu) delivered on the 31st day of October, 2011,

wherein the Tribunal dismissed the

Petitioners/Appellants' petition.

Being dissatisfied with the said judgment, the

Appellants have appealed against some before this

Court. The background facts leading to the petition

would be relevant wherein their petition duly filed

on the 19th day of May, 2011, the Petitioners

challenged the return of the 1st Respondent as the

Governor of Plateau State of the Gubernatorial

13

Election held on the 26th day of April, 2011.

The principal and/or main prayer of the Petitioners,

inter alia are:

(a) That votes recorded and/or returned for the 1st

- 3rd Respondents in the Local Government Areas,

set out in paragraph 15 of the petition, do not

represent lawful votes cast in the said Local

Government Areas in the Plateau State

Governorship election held on 26 April, 2011 as

same were vitiated by substantial non-compliance

with the mandatory statutory requirements of the

Electoral Act 2006 which non-compliance

substantially affected the validity of the said

election such that the votes credited to the 1st to

3rd Respondents ought to be nullified as unlawful

votes and is countenanced in determining the

winner of the elections.

(b) That votes recorded and/or returned in the said

Local Government Areas and some wards in some

Local Government Areas for the 1st Respondent, do

not represent lawful votes cast in the said Local

Government Areas and stated wards in the plateau

State Governorship election held on 26 April, 2011

and as having been obtained in vitiating

circumstances of substantial non-compliance,

violence and malpractices which substantially

affected the validity of those votes;

(c) That the said David Jonah Jang, the 1st

Respondent, was not duly elected by a majority of

lawful votes cast in the Plateau State Governorship

election held on April 26, 2011 and that his

election is void:

14

(d) That Dame Pauline K. Tallen, was duly elected

and ought to have been returned having scored the

highest number of votes cast in the Plateau State

Governorship Election held on April 26, 2011 and

having satisfied the requirements of the Section

179 Constitution of the Federal Republic of Nigeria,

1999 and the Electoral Act, 2010 as amended.

(e) That the 1st Petitioner be declared validly

elected or returned.

In the Petitioners' alternative prayers, the

Petitioners prayed as follows:

(a) That the Plateau State Governorship Election

held on April 26, 2011 is void on the ground that

the election was not conducted substantially in

accordance with the provisions of Part IV of the

Electoral Act, 2010 as amended:

(b) That the said election was vitiated by

substantial non compliance with the mandatory

statutory requirements which substantially affected

the validity of the said elections that none of the

candidates in f he said election can be validly

returned as having validly won the said election;

(c) That the Plateau State Governorship Election

held on the 26th of April, 2011 be nullified or

cancelled and the 3rd Respondent be directed to

conduct fresh elections for the office of the

Governor of Plateau State;

(d) Costs of this Petition.

In response to the petition, the 1st and 2nd

Respondents filed a joint reply dated 3rd day of

June, 2011. The 3rd Respondent through its

counsel filed a reply also dated 3rd day of June,

15

2011, while that of the 4th Respondent was dated

16th day of June, 2011.

At the hearing of the petition, the

Petitioners/Appellants in proof of their case called a

total number of sixty four (64) witnesses and

tendered several documentary evidence which were

all marked Exhibits P1 to P992 and also Exhibit

P993. The 1st to 3rd Respondents as evidenced of

Page 3207 of the record of appeal, did call a total

number of forty (40) witnesses on their behalf. No

witness was however fielded by the 4th

Respondent.

At the end of the trial and after address of counsel,

the Tribunal in its judgment delivered on the 31st

day of October, 2011, dismissed the Petitioners/

Appellants' petition.

The Appellants/Petitioners being dissatisfied with

the said judgment of the trial Tribunal, have

brought the present appeal by filing notice and

grounds of appeal on the 4th November, 2011 of

pages 3349 - 3358 of the record of appeal and

containing ten grounds of appeal with their

particular.

In accordance with the Practice Direction issued by

the President of the Court of Appeal, briefs were

filed and exchanged between the parties. The

Appellants' brief was dated and filed 30th

November, 2011 while that of the 1st - 3rd

Respondents was dated and filed on the 5th

December, 2011. On the 7th December, 2011 when

the appeal was called up for hearing all counsel

adumbrated on their respective briefs of arguments

16

with the Appellants' counsel Mr. Kola Awodein SAN

urging that the appeal be allowed. To the contrary

however, the learned 1st - 3rd Respondents'

counsel Prince L.O. Fagbemi SAN urged that the

appeal be dismissed as locking in merit.

Judgment the subject matter of this appeal was

delivered on the 31st day of October, 2011 and by

the provision of Section 285(7) of the Constitution

1999 as amended, it is mandatory that the appeal

be heard within 60 days of the delivery of the

judgment for the appeal to have the force of law.

The interlocutory appeal CA/J/EP/238A/2011 which

was heard on the same day with this main appeal

CA/J/EP/238/2011 would be lapsing on the 11th

December, 2011. Judgment in the former was

therefore reserved for pronouncement on 9th

December, 2011 to ensure that it is not caught up

with expiration of time and became extinct.

Consequently therefore and for purpose of validity,

the judgment in the main appeal would also be

pronounced upon in accordance with Section

287(8) while the reasons for arriving thereat would

be given at a later date to be communicated to

parties.

From the ten grounds of appeal raised, the

Appellants have distilled four issues for

determination. The 1st - 3rd Respondents' four

issues were also formulated in line with those of

the Appellants. The 4th Respondent as earlier

indicated did not however file any brief of

argument.

For the determination of this appeal, I shall adopt

17

the four issues distilled by the parties which are apt

and appropriate for the disposal of the appeal and

they are as follows:

i. Whether the Tribunal was right in refusing to

examine, act on, and give probative value to the

Petitioners Report of inspection of electoral

documents Exhibit P993. (Grounds 4, 11, 12, 13,

14, 15, 16)

ii. Whether the Tribunal was right in holding that

the Petitioners/Appellants dumped the CTC's of the

electoral materials Exhibits P1-P992 on the

Tribunal" (Grounds 1, 2, 3, 5, 7, 8, 10, 17)

iii. Whether the Tribunal was right in not treating

the 4th Respondent as having abandoned its

pleadings and admitted the case made by the

Petitioners/Appellants. (Grounds 20 and 23)

iv. Whether the Honourable Tribunal was right in

dismissing the Appellants/Petitioners Petition on

the ground that they have not proved their case to

warrant the grant of the reliefs sought. (Grounds 6,

9, 18, 19, 21, 22)

Issue 1 questions the propriety of the Tribunal in

refusing to examine, act on, and give probative

value to the Petitioners'/Appellants' report of

inspection of Electoral documents Exhibit P993.

Submitting to substantiate the said 1st issue raised,

the learned senior counsel for the Appellants

argued the Tribunal having failed in its duty to

dispassionately consider the exhibits tendered

before it including the report of inspection of the

materials used in the conduct of the election by the

4th Respondent (Exhibit P993) as well as the oral

18

evidence of PW64, and to attach probative value

thereon. The learned counsel in further submission

argued that the findings of the Tribunal were

perverse and clearly demonstrated an abdication of

its constitutional duty of adjudication in failing to

evaluate the pieces of evidence before it on the

report of the analysis of the electoral documents as

contained in Exhibit P993. The counsel therefore

urged the Court to so hold.

On behalf of the 1st - 3rd Respondents however it

was submitted in response that a person who

claims to have inspected INEC documents must be

a person who did and in fact physically examine

them of their designated abode and not a person

who was not present in flesh and blood. On the one

hand, the learned senior counsel for the Appellants

has demonstrated heavy reliance on the Exhibits P1

- P993 and strenuously argued that his clients' case

was built on documentary evidence and hence the

reason why the appeal should therefore be found in

their favour. On the other hand however, the

learned 1st - 3rd Respondents' counsel had argued

that the Appellants having failed to establish the

link between the said exhibits and the testimonies

of their witnesses, the documents therefore have

no probative value.

The law is well pronounced and trite that he who

asserts has the burden to prove. There can only be

the shifting of the burden therefore after the initial

burden of proof must have been discharged.

See the case of N.B. Ltd v. D.C. Holdings Ltd (2004)

19

13 NWLR 436 at 462 and Chime v. Ezeq (2010) 6

EPR 353. At this stage therefore, the Respondent

will have no burden to discharge unless and until

the Petitioner establishes a prima facie case then

the burden would shift onto the Respondent to

rebut in a civil matter. To the contrary however,

the burden remains constant and does not shift

where the allegation is of a criminal nature in

which case it must remain with the Petitioner to

prove the offence beyond reasonable doubt.

The bone of contention in the 1st issue raised

relates to the document Exhibit P993 which was the

report produced by the Petitioners/Appellants

inspection team and supposed to be the report of

the result of the analysis of the electoral materials.

The Petitioners/Appellants grouse therefore

centered on the refusal by the Tribunal in accepting

and recognizing the said report Exhibit P993 which

was a product of Exhibits P1-P992 for purpose of

proving that there was falsification of those results

as they affect the scores credited to the 1st - 3rd

Respondents in the election. Heavy reliance was

also made on the evidence of PW63 and PW64. At

pages 3329 - 3330 of the record however, the

learned Tribunal had this to say:

"The PW63 and PW64 who testified as having

played one role or the other in the production of

this report - Exhibit P993 did not demonstrate

before the tribunal during their testimonies that

these results and other they used in their analysis

report. So, it will be very speculative for this

Tribunal to assume so and apply same to the case

20

of the Petitioners."

It is not on record that any of the Petitioners'/

Appellants' witnesses including PW63 and PW64

was led to link their evidence on depositions

relating any of the Exhibits P1 - P993 throughout

the trial. It is correct to say that the documents,

though admitted from the bar, it is not open for the

Tribunal to figure out the detailed identity and for

what purpose the individual exhibits were meant to

serve.

On behalf of the Appellants it was contended that

the evidence given by PW63 in chief to the effect

that he delivered the certified true copies of the

electoral materials obtained from INEC to PW64 (a

member of the inspection team) for the analysis,

examinations and comparisons that led to Exhibit

P993 was neither challenged nor controverted.

Furthermore, that the witness was not in fact cross

examined at all. The learned counsel therefore

restated that Exhibit P993 was a product of the

physical inspection, analysis and examination of

Exhibits P1- P992.

For purpose of a clearer picture and perspective of

the case of hand, it would be helpful to make

specific reference to the evidence by PW64 at

paragraph 48 of his written Statement on oath

wherein he stated thus:

"48. I believe that the claims and conclusions that

have here can be easily verified by reference or

examination of the reference documents or

electoral material referred to or that forms the

basis of my conclusion or the findings made or

21

conclusions."

By implication, it is obvious from the foregoing

deposition that the said exhibits admitted were

never linked to the case of the Petitioners but

rather left for the Tribunal to verify/examine same

by themselves outside the Tribunal sitting since the

Petitioners/Appellants have failed to do so at the

trial. There is no evidence an record to show that

the Exhibits P1-P993 were either read or token to

be read of the trial. For the Tribunal to embark on

the assignment given to it by the Appellants, it

would certainly involve its going on a voyage of

discovery. In other words it ought to on its own

engage in sorting out which polling units of the

State are contained in the bundles of voters

register admitted as exhibits or the contents as in

figures and computation of some on the exhibits.

Any Tribunal worthy of its salt would not have

obliged such a venture and which the Tribunal in

my humble view rightly refused to do. All materials

and evidence relating trials ought to be in the open

Court and must generally except where the

proceeding is conducted in camera be open to the

public. It is not permitted by our system of

adjudication that the Court should on its own and

in the comfort of its recess engage in sorting out a

party's case for purpose of sound footing. This is

not however to say that the Tribunal cannot take

judicial notice of the statutory forms i.e. Form

EC8A, EC8B, EC8C and the voters register to the

extent of the statutory information printed thereon.

In other words what it means is that the judicial

22

notice extends to recognition and does not extend

to other recordings made in the filling of the forms

by other individuals, except such recordings are

pointed out to the Tribunal in the open Court by

way of viva voce evidence. It cannot therefore in its

privacy search out what the recordings were or how

they were made. This by implication was what the

Appellants are calling on the Tribunal to do. The

parties would certainly be deprived of the

adjudicatory right to cross-examination and

participation and thus a denial of fair hearing.

The documents are public in nature and being

statutory forms the Tribunal is bound to look at

them for purpose of recognizing them as such, and

therefore obviously speak for themselves in that

context only. By the provision of Section 150 of the

Evidence Act, the presumption of their correctness

and regularity is made. This, notwithstanding, and

as rightly arrived of by the Tribunal, is not however

open to it to go further and apply the use of those

results to the Petitioners'/Appellants' case by

looking into them one by one and polling booth by

polling booth for purpose of discovering their

particulars and contents and apply them to the case

of the Petitioners. The Appellants as rightly arrived

at by the Tribunal have failed to demonstrate by

evidence before it the use for which they wonted

the Tribunal to put them.

In the case of Buhari v. INEC (2008) 19 NWLR (Pt.

1120) 246 at 354. The apex Court per Niki Tobi

held and said:

"Election results are presumed by law to be correct

23

until the contrary is proved. It is however a

rebuttable presumption. In other words, there is a

rebuttable presumption that the result of any

election declared by a returning officer is correct

and authentic and the burden is on the person who

claims the correctness and authenticity of the

return to rebut the presumption."

The burden is therefore squarely on the

Petitioners/ Appellants to rebut this presumption by

credible and cogent evidence. This requirement has

been well pronounced in plethora of judicial

authorities for example in the case of Yar'adua v.

Barda (1992) 3 NWLR (Pt. 231) 638 at 642

wherein it was held that:

"The only way a petitioner can question the

lawfulness of the votes cast at an election is to

tender in evidence all the forms used and call

witnesses to testify as to the misapplication of the

votes scored by individuals. For example, if a

petitioner wants to prove over-voting, he needs a

witness to State where the over-voting took place.

The documentary evidence of over-voting will be

the voter's register showing accreditation and the

form EC8A. Those pieces of documentary evidence

can be tendered from the bar during pre-hearing or

during the course of the trial. The witness giving

oral evidence would refer to the specific

exhibits already tendered to cement the case."

(Underlining is for emphasis).

See also the case of Amosun v. INEC CA/I/EPT

/GOV/01/09 unreported of 8th March, 2010 also

Malunfashi v. Yaba & Ors. (1999) 4 NWLR (Pt. 598)

24

230 at 237.

Throughout the length and breadth of the record of

proceedings the witnesses PW63 and PW64 who

testified as having played one role or the other in

the production of the report Exhibit P993 did not

demonstrate before the Tribunal during their

testimonies that those results and other

documentary exhibits tendered from the bar were

what they used in their analysis report. It will

therefore amount to mere speculation for the

Tribunal to assume such conclusion and apply same

to the case before it.

The learned Appellants' counsel was greatly

misconceived when he expected the Tribunal to

have done otherwise. This Court per Salami JCA (as

he then was) for instance in the case of Naga v.

Registered Trustees Recreation Club (2004) FWLR

(Pt. 190) 1360 had this to say:

"The preservation of the principle is that it is

infraction of derogation of the rule of fair hearing

for the judge to do in the recess of his chambers,

what a party is required to do in canvassing his

case in the open court. The Court by so acting has

only sacrificed its impartiality. It has equally turned

the whole proceedings from adjudicatory to

investigatory. It is therefore, not the business of

the Court to wield through exhibit 1, the

constitution of the defendants to ascertain which

provision (if any) assists or supports the plaintiff

..."

Also in the case of Onmeje v. Otokpo (1999) 1

NWLR (Pt. 600) 578 at 5 this Court per

25

Chukwuma-Eneh, JCA (as he then was) held and

said:

"The other question for consideration relates to the

Tribunal's refusal to examine and use Exhibits P22

and P23 wherefore, learned Appellants' counsel has

submitted that this was done under misconception

of the case of Oribudo 4 Ors. v. Akibu (1992) 7 SC

60 at 62. These exhibits were ballot papers etc. For

Akpoge-Ogbilolo ward and were tendered by the

PW1 in what looked like dumping them on the

Court as no attempt was made by evidence as to

what use the court was to make of them hence the

Tribunal found that apart from numbering it with

these exhibits, if was not its function to "examine

the voters register, the ballot papers etc to see

whether there were over voting or other

irregularities". It is not the duty of the Court to go

on a voyage of its own discovery. No authority was

cited to the petitioners stand in this respect. It is

my view that having tendered these exhibits, it was

incumbent on the Petitioner to lead evidence as to

the use to be made of then. Without taking that

step, the tribunal was perfectly right in refusing to

be drawn into examining them." (Emphasis

provided)

Niki Tobi JSC also in the case of Buhari v. INEC

(supra) had at page 415 put a stop cork to the

bottle neck wherein he held thus in his

pronouncement and said:

"The basic aim of tendering documents in bulk is to

ensure the speedy hearing of election petitions and

that is good because it facilitates the speedy

26

hearing of the petition. But that does not ipso facto

permit the Court to attach probative value to

documents that lack such value. At the end of the

day and the end of the day is the writing of

judgment, the trial judge will remove the chaff

from the grain by scrupulously examining the

documents to see whether they have the content of

probative evidence. As the documents in this case

failed the test, the Court of Appeal was right in

expunging them".

The learned Tribunal cannot therefore be faulted in

towing the path of absolute deductive reasoning.

The present case of hand, I hold, is squarely on all

fours with those under reference (supra). In other

words, the Tribunal did well by refusing to be

swayed away by the pressure mounted upon it on

behalf of the Petitioners / Appellants by their

learned counsel. It did therefore save itself from

embarking on a fruitless voyage of wrongful

discovery. The veracity and credibility of the report

Exhibit P993 was greatly thrown into uncertainly

especially where there was no evidence from any

witness before the Tribunal that the findings of non

accreditation in Exhibit P993 were based on the

examination of Exhibits P1 - P890. There was also

no evidence that the said Exhibits in fact were

tendered in proof of non-accreditation of voters and

other electoral malpractices in the election.

For Purpose of emphasis and to drive home the

crucial point, in the case at hand, the bundle of

voters registers Exhibits P1-P890 were tendered

from the bar without an iota of evidence from any

27

witness of the Petitioners on the purpose for which

they were tendered and admitted in evidence. In

the absence of any explanation about the said

voter's registers, it is correct to say and without

mincing words that the said Exhibits P1 - P890

were merely dumped on the Tribunal from the bar

by the counsel for the Petitioners/ Appellants.

There was certainly a missing link connecting the

nexus that the said voter's registers were the basis

from which the witness PW64 made his findings in

Exhibit P993 about non accreditation of voters in

many polling units in the words at Barkin Ladi Local

Government Area of Plateau State."

The very witness PW64 whose evidence was heavily

relied upon by the Appellants, though he testified

before the Tribunal a day after the tendering of

Exhibits P1 - P890 he never however identified

them or linked them as being the documents he

examined to produce Exhibit P993. It is correct and

not far-fetched to say therefore that the said

witness PW64 from all indication appeared in the

circumstance as a stronger to the documents

Exhibits P1-P890 therefore. The attempt made by

the Petitioners/ Appellants senior counsel in his

address to link the Exhibits P1 - P890 and other

documents tendered from the bar as being those

examined by the witnesses PW63 and PW64 to

produce Exhibit P993 was greatly misplaced. The

absence of nexus or the missing link between

Exhibits P1 - P992 and the evidence of PW63 and

PW64 as well as Exhibit P993 cannot be salvaged or

saved by the address of counsel as sought to

28

portray by the learned Appellants' counsel. It has

not also been shown on record anywhere that the

other witnesses who testified before PW63 and

PW64 did provide the missing link evidence.

Needless to restate the well standing principle of

law that an address of counsel no matter how

sound, convincing or brilliant, it can never take the

place of evidence. I am afraid but must clearly and

emphatically say that the Appellants counsel had

failed to address the need to have ensured the link

which was only possible through the witnesses who

testified on their behalf and no more.

Even in the face of repetition, I would again restate

that the law is clear as pronounced in the cases

cited earlier in this judgment that a party relying

on bundles of documents in proof of his case must

specifically relate such documents to that part of

his case in respect of which the bundles of

documents were tendered. This responsibility does

not fall on the Court as if would be aiding and

conducting a case on behalf of a party who has

failed to discharge the onus placed on him.

The learned Appellants' counsel strenuously

submitted the lack of cross examination of PW63

and PW64 by the Respondents and hence their

evidence as uncontradicted. With all respect to the

senior counsel, I hasten to say that the witnesses

PW63 and PW64, in the absence of their identifying

or linking the production of Exhibit P993 from

Exhibits P1 - P890, needed not be cross-examined

on their evidence which unfortunately failed to

address the aspect of the use of the documents

29

which was of most significance. It is this aspect of

the evidence that would have given reason for the

Respondents the opportunity and purpose

necessitating cross examination of the witnesses

PW63 and PW64 in respect of the Exhibits P1 -

P890 as well as Exhibit P993. The Appellants did

not create the need for any cross examination of

the witnesses. It should not therefore be the

business of the Respondents to invent a reason for

cross examination if there is none and therefore

would do well by keeping their peace. It is the

Appellants who would stand to lose if they fail to

present their documents properly before the

Tribunal for purpose of proving their case. After all

the onus of proof lies on the Petitioners/Appellants

who must first discharge the initial onus whether or

not the Respondent decide to say anything. The

submission on cross examination as contended by

the learned Appellants' counsel is greatly

misconceived. I have said earlier that no room was

open far the Tribunal to speculate. The allegation

made on non accreditation in the election in issue

in any polling units in Barkin Ladi Local

Government Area, therefore remain unproved. The

findings by the learned Tribunal in refusing to

examine, act on, and give probative value to the

Petitioners / Appellants report of inspection of

electoral documents Exhibit P993 was apt and

unassailable. The 1st issue is therefore resolved

against the Appellants.

Issue 2 questions the Tribunal's propriety in holding

that the Petitioners/Appellants dumped the CTC's of

30

the Electoral materials Exhibits P1 - P992 on the

Tribunal. This issue over lapses and is closely

related to the 1st issue. Nevertheless I will treat it

as a separate issue but may not avoid occasional

over lapsing.

In his submission to substantiate the allegation, the

learned senior counsel for the Appellants

vehemently argued that the findings by the

Tribunal in respect of Exhibits P1 - P992 wherein it

held their having been dumped on it by the

Appellants is extremely perverse and unjustifiable

in law.

It has been well spelt out in the course of this

judgment and which is not an issue that the said

Exhibits P1-P992 are the certified true copies of the

Electoral materials (Forms EC8A's, EC8B's and

voters registers being tendered in evidence from

the bar and so admitted and marked as exhibits.

From the plethora of authorities cited and

considered under the 1st issue raised (supra), the

law is clear that the public nature of such exhibits

is not in dispute but which ought to be judicially

noticed of wherein the provision of Section 150 of

the Evidence Act enjoins the presumptions of their

regularity for purpose of recognition. Hence when

such documents are tendered from the bar their

authenticity is not in question in view of Section

150 of the Evidence Act. The case of hand however

and contrary to the submission by the learned

senior counsel for the Appellant, still holds that the

use and purpose for which such documents are

meant for ought to be testified to and explained by

31

a credible witness who has the 1st hand knowledge

of the facts to enable him relate the documents to

his evidence for linking purpose. PW63 and PW64

or any other Petitioners' witnesses alike in their

evidence, did not link the exhibits in question. The

learned Tribunal was therefore left on its own

without any clue of what use the documents are

meant to serve. Having been faced with so many

certified true copies of documents, relevant as they

may be in nature their mere existence per se is not

sufficient for purpose of proving anything without

explanation and linking to an evidence thereto. The

Tribunal was rather left on its own to sort out the

use and purpose of the exhibits. It was in other

words saddled with a responsibility which was not

meant for it. The expected implication of placing

the documents before the Tribunal spoke volume

which was for them to descend into the arena for

purpose of sorting out their relevance outside the

hearing of the case and without any explanation as

to their use. In the circumstance and as rightly

arrived at by the Tribunal, which conclusion I also

endorse, the documents were certainly dumped on

them. The statutory nature of the forms per the

judicial authorities cited and which recognized the

exhibits under Section 150 of the Evidence Act did

not render them as self explanatory for purpose of

dispensing with witness explanation. The

contention by the learned Appellants' counsel is a

misconception of the authorities cited because they

did not dispense within witness' evidence linking

the documents. To do so would prejudice the

32

opponent who will have no opportunity to cross

examine them. The findings of the Tribunal that the

documents speak for themselves relate to their

presumptive nature under Section 150 of the

Evidence Act and no more. It is therefore a

misconception on the part of the Appellants'

counsel to have ascribed a different interpretation

to the phrase "the document speaks for itself." It is

the act of tendering the documents and leaving

same without any explanation that constituted

some having been dumped on the Tribunal or

Court. The case of Awuse v. Odili (2005) 16 NWLR

(Pt. 952) 416 at 482 per Salami JCA (as he then

was) is under reference and dealt with earlier on in

the course of this judgment.

At pages 3235 - 3236 of the record of appeal for

instance, the learned Tribunal extensively held and

said:

"The law is that after tendering some documents in

evidence before the Tribunal, the party who tender

same is expected or required to demonstrate to the

Tribunal the use he proposes to put them to. It is

not for the Tribunal to go on a voyage of discovery

or speculation. Investigation is not the work of the

Tribunal. It is rite that the Petitioners had tendered

before these Tribunal bundles of Forms EC8As from

the bars results of election. On the face of these

documents, it is clear that they are results of the

electron but the Tribunal cannot begin to apply

their contents to the case of the Petitioners. For

instance, to prove over-voting, when they had not

done so. They did not demonstrate to the Tribunal

33

the relevance and purport of those exhibits to their

case. Yes, it is true that a document once tendered

in evidence speaks for itself. This is just for the

court to know prima facie, the contents of the

document but the court will have no competence

and power to apply the document to any specific

aspect of the party's case when the party that

tenders it has not done so. That will amount to

embarking on a voyage of discovery, and it will lead

to the breach of right of fair hearing of the

adversary who did not have the fore knowledge of

the purpose for which the document was tendered

in evidence. This principle of law is supported by a

long line of judicial authorities. See TERA V.

LAWAN (1992) 3 NWLR (PT. 231) 569, ANPP V.

ARGUNGU (supra), AWUSE V. ODILI (supra), AUDU

V. INEC (supra). The decision in TERA V. LAWAN

(supra) did not say that once Form EC8A is

tendered in evidence, without demonstrating before

the Court, its relevance and purpose in the

proceeding in which it is tendered, the Court would

assume and ascribe relevance and purpose to it in

favour of the party that tenders it. That is not the

law. It appears to this Tribunal that because the

Form EC8A is a statutory form, the Court before

which it is tendered in evidence would not require

it to be read again as the court would know what it

is from its contents. However, this is not the same

as the Court knowing the relevance and purpose for

which it is tendered in evidence in support of a

party's case. It is for the owner of the said form

EC8A to demonstrate before the court, ifs relevance

34

and usefulness, in deciding the contest between the

parties. That is not the duty of the court, no matter

how that principle of law may be stretch."

The findings and conclusion arrived of in my

opinion are apt and explicit in addressing the issue

before the Tribunal. This finding I hold is a

marathon and I also endorse same as findings in

the right direction.

In other words I therefore agree with the

submission made by the learned senior counsel to

the 1st - 3rd Respondents that the conclusion

arrived at by the learned Tribunal as reproduced

(supra) is unassailable and I also so hold.

On the totality of the said issue therefore, I hold

that the Tribunal was right in holding that the

Petitioners/Appellants dumped the CTC's of the

electoral materials Exhibits P1 - P992 on it without

relating same to their case. The said issue two is

also resolved against the Appellants.

The 3rd issue is whether the Tribunal was right in

not treating the 4th Respondent as having

abandoned its pleadings and admitted the case

made by the Petitioners/ Appellants.

The thrust of the case of the Appellants of the

Tribunal was that the conduct of the election in the

affected Local Government Areas and words was

not in compliance with the mandatory provisions of

the Electoral Act and the 4th Respondent's Manual

for Electoral Officers. That the complaint was

lodged against the 4th Respondent's conduct of the

election and therefore clearly directed at the 4th

Respondent to the effect that the election which it

35

conducted and on which basis the 1st and 2nd

Respondents were returned as elected was

substantially flawed.

The learned Appellants' senior counsel in the

circumstance submitted error by the Tribunal in not

treating the 4th Respondent as having abandoned

its Reply and in effect admitted the case made by

the Petitioners/Appellants. That this submission

was especially confirmed wherein the Petitioners /

Appellants' case having been clearly built on

documentary evidence, and of so having shown

that the irregularities amounting to substantial non

compliance with the provisions of the Electoral Act

are manifest on the same Electoral materials used

by the 4th Respondent in the conduct of the

election Exhibits, P1 - P992. The learned senior

counsel cited plethora of authorities wherein

pleadings not supported by evidence are deemed

abandoned as clearly pronounced in the case of

Ojoli v. Kamalu (2005) 18 NWLR (Pt. 958) 523 per

Tobi JSC. Heavy reliance was also made on the case

of Aregbesola v. Oyinlola (2010) 9 NWLR (Pt.

1253) 458 at 596 amongst others which all go to

confirm that pleadings without evidence is deemed

abandoned. The question of pleadings without

evidence is not on issue of contention but rightly so

and is trite law in nature.

The question to pose however whether the 4th

Respondent indeed did abandon its pleadings as is

alleged by the Appellants' counsel and in line with

the authorities he cited? However and despite the

general acceptable principle of law regarding

36

pleadings as rightly submitted by the learned

Appellants' counsel the end of the matter is not

always foreclosed with the general rule. In other

words as rightly also submitted by the learned

senior counsel to the 1st - 3rd Respondents there

are also exceptions to the general rule which are

relevant of note where the following circumstances

apply as:

(a) Evidence led during cross examination on issues

joined is as valid and authentic as evidence

procured from examination in chief.

(b) Evidence elicited from a plaintiff's witness under

cross examination forms part of the case for the

defence. The defence can therefore legitimately

rely on such facts in establishing his case.

(c) A party seeking nullification of an election must

succeed on the strength of his case and not on the

weakness of the Respondents case.

See the case of Gaji v. Paye (2003) 8 NWLR (Pt.

823) 583 at 590 wherein Edozie JSC held and said:

"Evidence procured from cross examination is as

valid and authentic as evidence procured from

examination in chief. Both have the potency of

relevancy, and relevancy is heart of admissibility in

the law of evidence. Where evidence is relevant, it

is admissible and admitted whether it is procured

from examination in chief or cross examination."

Also in Ayoola v. Yahaya (2005) 7 NWLR (Pt. 923)

122 at 140 the apex Court further said:

"Evidence elicited from a plaintiff's witness under

cross examination forms part of the case of the

defence.

37

Therefore where counsel by skillful application of

the weapon of cross-examination is not only able to

destroy the case of the defence, he can legitimately

rely on such facts in establishing his case."

An example is where the 4th Respondent's counsel

who did not call any witness but took time to cross-

examine the RW1, RW2, RW4, RW6, RW7, RW8

who are all witnesses to the 1st - 3rd Respondents.

The various evidence under cross examination of

pages 2803 and 2805-2845 of the record of appeal

would serve to disagree with the Appellants'

contention that no evidence was adduced of the

instance of the 4th Respondent. Moreover and with

the legal position that a party who asserts must

succeed on the strength of his case and not the

weakness of the defence, same stands to be

interpreted that where the Petitioners/ Appellants

had failed to make out their case on credible

admissible evidence, there is no burden placed on

the Respondent who would not need to call any

witness, in the circumstance.

By the cross examination of the foregoing

Respondents' witnesses, same as rightly submitted

by the learned 1st - 3rd Respondents' counsel, had

successfully challenged the Appellants' case and

thereby established, that:

(a) There was accreditation of voters.

(b) There was voting

(c) There was no misuse and misapplication of

votes.

(d) There was counting of voles, announcement and

pasting of result at most of the polling station

38

and/or units in the contested Local Government

Areas.

With reference also to the 4th Respondent's

pleadings, same is contained in the 4th

Respondent's Reply to the petition, particularly

paragraph 9(i) (xiii) at pages 4-5 of the 4th

Respondent's Reply to the petition. The averments

clearly confirm that the entire election was properly

conducted and free from all form of irregularities

wherein no voter was disenfranchised but that all

were allowed to exercise their rights and therefore

in substantial compliance with the Electoral Act

regulating the conduct of the election. The

Respondents' witnesses under cross examination by

the 4th Respondent's learned counsel Mr. A.A.

Ibrahim Esq. also confirmed in totality the

averments in the 4th Respondent's brief of

arguments and that the whole process of the

election was conducted in accordance with

expectation of the Electoral Act. That no form of

irregularity or malpractice occurred to vitiate the

conduct of the election which was very fair and

peaceful.

The case of Akomolafe & Anor. V. Guardian Press

Ltd & 3 Ors. (2010)1 SC (Pt. 1) 58 at 74 is apt

wherein W.S.N. Onnoghen JSC pronounced on

evidence adduced under cross examination and

which could constitute evidence in support of the

case or defence of that party.

On the totality of the 3rd issue raised therefore the

learned Appellants' counsel was in great error

wherein he alleged that the Tribunal erred in not

39

treating the 4th Respondent as having abandoned

its pleadings and admitted the case made by the

Petitioners/ Appellants. In other words it is not true

as alleged by the learned Appellants' counsel that

the 4th Respondent abandoned its pleadings of any

time. Rather same was out rightly proved per the

evidence adduced from the 1st-3rd Respondents'

witnesses under cross-examination. The said issue I

hold is also resolved against the Appellants.

The 4th and the last issue questions whether the

Tribunal was right in dismissing the

Appellants'/Petitioners' petition on the ground that

they have not proved their case to warrant the

grant of the reliefs sought.

In his submission, the learned Appellants' counsel

faulted the Tribunal wherein it dismissed the

petition by the Appellants on the ground that they

have not established their case. The conclusion by

the Tribunal counsel argued, was erroneous

because the Tribunal unjustifiably failed or refused

to examine, act on and ascribe probative value to

the documentary evidence heavily relied on by the

Appellants in proof of their petition. To buttress his

submission, the learned senior counsel relied

heavily on Exhibits P1 - P992 as well as Exhibit

P993 containing the report of the analysis of

Exhibits P1-P992. Counsel submitted forcefully that

the Petitioners have established the allegations of

substantial non-compliance with the Electoral Act

2011 in the conduct of the Gubernatorial Election

in the contested Local Government Areas and

words as alleged. The counsel therefore called upon

40

this Court to critically consider the analysis of the

results made in the table contained of page 30 of

the Appellants' brief which counsel submitted

should be used and declare the 1st Petitioner/

Appellant as the winner of the contested election,

having duly scored the majority of lawful votes of

434, 116 as against 412,636 scored by the 1st

Respondent.

The position of the law as rightly submitted by the

learned 1st - 3rd Respondents' counsel is that the

result of any election that is declared by INEC is

deemed authentic and genuine. It is the duty of the

person who is asserting the contrary therefore to

prove that the result so declared is not authentic or

genuine. The presumption of regularity has been

clearly elucidated in the case of Audu v. INEC

(2010) 13 NWLR (Pt. 1212) 431 at 522 wherein

this Court held and said:

"There is a presumption that the result of any

election as declared by the electoral body is correct

and authentic, and the onus lies on the person who

denies the correctness and authenticity to rebut the

presumption with credible evidence" (Ezea

Zodoziako v. Okeke (2005) 16 NWLR (Pt. 952)

612, Onye v. Kena (1999) 4 NWLR (Pt. 598) 198:

... Mohammed v. Mohammed (2008) 6 NWLR (pt.

1082) 73. Chime v. Onyia (2009) 2 NWLR (Pt.

1124) 1).

Also in Buhari v. Obasanjo (2005) 2 NWLR (Pt.

910) 241 at 399 the apex Court held and said:

"A petitioner must first allege and adduce some

41

evidence of the existence of violence and other

corrupt practices in an election to subject the

election to the scrutiny of the Court. Where no

allegation is made against an election and no

evidence is adduced on the conduct of the election,

the presumption of regularity ensures in its

favour."

Relevant also to the determination of this issue is

the provision of Section 139 (1) of the Electoral Act

2010 (as amended) which provides thus:

"139(1) 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."

The above provision has been given judicial

interpretation in a number of cases including

Buhari v. Obasanjo (supra) where the apex Court

per Ejiwunmi JSC, held and said:

"... The onus is on the appellants to establish first,

substantial non-compliance and secondly, that it did

or could have affected the result of the election. It

is after the Appellants have established the

foregoing that the onus would have shifted to the

Respondents to establish that the result was not

affected.''

From the deductive summary of the

Petitioners/Appellants entire case before the

Tribunal, in other words, from the collective

summary of the pleadings, evidence adduced by

42

witnesses as well as the documents admitted as

exhibits, it is as rightly found by the Tribunal that

the Petitioners' case stood on three legs namely,

the oral evidence of their witnesses; the

documentary evidence and the alleged admissions

by the 4th Respondents from the evidence of RW24

and RW25 who were the 3rd Respondent's word

collation agents in Nemel and Dawaki words

respectively: they testified that election in these

words was free and fair and that there was no

evidence of non compliance. If is relevant to note

that the said two words were the words where

PW23 and PW56 came. The witnesses RW24 and

RW25 whose evidence was not subjected to cross

examination had therefore clearly rebutted the

evidence of the said Petitioners' witnesses. See the

cases of Williongby v. I.M.B. (Nig) Ltd. (1987) 1

NWLR (pt. 48) 105 and A.G. Oyo State v. Fair

Lakes Hotel Ltd (1981) 1 SCNJ 1 at 20.

On the credibility of documents Exhibits P1 - P993

same had been dealt with in great depth under the

1st issue in the course of this judgment. It is

relevant to restate that there is a world of

difference between admissibility of documents and

ascription of probative value to same. The Court or

Tribunal would only ascribe probative value to

documents that are properly demonstrated before

it, by parties laying the nexus between such

documents to the evidence of their witnesses which

the petitioners have failed to do in the instant case.

I have taken pains to analyse and peruse the

evidence given of the Tribunal by all the witnesses

43

to the parties, also the documents tendered in

support of their cases as well as the averments

made on the pleadings and thus arrived of

endorsing the unshaken conclusions arrived of by

the learned Tribunal. In other words and on the

totality of the Petitioners/Appellants' case, and as

rightly found by the learned trial Tribunal, the

Petitioners/Appellants have failed to prove the

allegation of the non compliance with the Electoral

Act 2010 (as amended) and/or corrupt practices in

the conduct of the election in the polling units of

those five Local Government Areas and the words

as pleaded. Furthermore and assuming that there

was any such non compliance and corrupt practice,

(which certainly is not the case), the

Petitioners/Appellants did not lead any credible

evidence that the alleged transgressions of the

Electoral Act did in fact substantially affect the

result of the election in the said five Local

Government Areas and the words.

Having resolved thus far, I hold the firm view that

the Tribunal having meticulously and carefully

evaluated all the evidence adduced by parties as

well as the exhibits tendered before it could not be

faulted in dismissing the Appellants/Petitioners'

petition on the ground that they have not proved

their case to warrant the grant of the reliefs

sought. The said issue is also resolved against the

Appellants.

In the final analysis and with all the four issues

having been resolved against the Appellants, it is

obvious that the appeal must fail and is hereby

44

dismissed as lacking in merit. In the same vein as

the trial Tribunal therefore I also make an order

dismissing the petition filed by the

Appellants/Petitioners at the trial Tribunal on the

19th day of May, 2011. A further order is also

made in declaring and affirming the Election of

David Jonah Jang and Ignatius Longjang the 1st

and 2nd Respondents as the Governor and Deputy

Governor respectively having been duly elected by

a majority of valid and lawful votes cast of the

election into the office of Plateau State Governor

and Deputy Governor held on the 26th Day of April,

2011. No order made as to costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I

have read before now while in draft, the lead

judgment just delivered and pronounced upon by

my learned brother, Ogunbiyi, JCA. I agree entirely

with the detailed and analytical review of facts and

law, lucid reasoning and conclusion reached

therein.

I am thus satisfied and harboured the firm

viewpoint that the appeal lacks merit and should be

dismissed. It is accordingly dismissed by me. I abide

by the consequential orders made in the said lead

judgment of my learned brother, Ogunbiyi, JCA. I

also make no order in respect of costs. Parties are

to bear their respective costs.

PHILOMENA MBUA EPKE, J.C.A: I have had the

45

privilege of reading in advance, the lead judgment

which has just been pronounced by my learned

brother, Ogunbiyi, JCA. I am in complete

agreement with the reasoning and conclusion

reached therein, to the full effect that the appeal

lacks substance and merit. I also affirm the decision

of the tribunal and accordingly dismiss the appeal. I

further abide by the order regarding costs made in

the said lead judgment.

Appearances

KOLA AWODEIN, SAN with

PASCHAL MAMMOFor Appellants

L.O. FAGBEMI SAN, I.O.

OLORUNDARE SAN, S.T.

OLOGUNORISA SAN, S.G. ODEY

ESQ. L.E ANYIA ESQ, DANIEL

GOPEP ESQ. S. OYAWOLE ESQ.

BENJANIN ISHAKU ESQ. A.T.

BALOGUN (MISS), M. AHUPA

(MISS), A.M. UMAR (MRS)

A.A. IBRAHIM ESQ and L.P. FOM

BOT (MRS)

For

Respondents

46