HON. JUSTICE ELIZABETH NGUVEREN KPOJIME CHAIRMANHON. JUSTICE VINCENT IGOMETI OFESI MEMBERHON. JUSTICE ABUBAKAR IDRIS KUTIGI - MEMBER

IN THE GOVERNORSHIP ELECTION PETITION TRIBUNALOSUN STATE

HOLDEN AT OSOGBO

ON FRIDAY THE 6TH DAY OF FEBRUARY, 2015.

BEFORE THEIR LORDSHIPS:

PETITION. NO.EPT/GOV/OS/01/2014BETWEEN:1. SENATOR IYIOLA OMISORE2. PEOPLES DEMOCRATIC PARTY (PDP) ----------------------------- PETITIONERS VS.1. OGBENI RAUF ADESOJI AREGBESOLA2. ALL PROGRESSIVE CONGRESS (APC) ----------------------------- RESPONDENTS3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

J U D G M E N T

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The Governorship election took place in all the 30 Local Government Areas in Osun State on 9th

August, 2014. The 1st Petitioner and the 1st Respondent were amongst the 20 candidates who contestedat the said election. While the 1st Petitioner was sponsored by the 2nd Petitioner, the 2nd Respondentsponsored the 1st Respondent in the said election which was conducted by the 3rd Respondent. On10th August, 2014, the 3rd Respondent announced the 1st Respondent as the winner of the said electionhaving polled a total of 394,684 votes as against the 1st Petitioner’s 292,747 votes. Aggrieved by thisreturn, the Petitioners on 28/8/14 filed this petition in the registry of this Tribunal challenging thisresult in 17 out of the 30 Local Government Areas in the State. The results are being challenged inthe following Local Government Areas –1. Aiyedade Local Government Area2. Atakumosa East Local Government Area3. Boripe Local Government Area4. Ede North Local Government Area5. Ede South Local Government Area6. Ejigbo Local Government Area7. Ifelodun Local Government Area8. Ilesha East Local Government Area9. Ilesha West Local Government Area10. Irepodun Local Government Area11. Irewole Local Government Area12. Iwo Local Government Area13. Obokun Local Government Area14. Ola-Oluwa Local Government Area15. Olorunda Local Government Area16. Oriade Local Government Area17. Osogbo Local Government Area

The grounds for this petition as stated in paragraph 20 of the petition are –“i. The 1st Respondent was not duly elected by majority of the lawful votes cast at the electionand did not score ¼ (One-quarter) of the lawful votes cast in at least 20 of the 30 Local GovernmentAreas of Osun State and therefore did not meet the requirements of the law to be returned as thewinner of the election;ii. The Election of the 1st Respondent is invalid by reason of corrupt practices and electoralmalpractices perpetrated by the members and agents of the 1st and 2nd Respondents in the placeschallenged in this petition.iii. The Election of the 1st Respondent is invalid by reasonof substantial non-compliance with the provisions of Electoral Act 2010 (as amended), the Manual forElection Officials 2014, the Guidelines issued for the conduct of the election and the law in the conductof the election”.

The Petitioners are therefore seeking from this Tribunal the prayers contained in paragraph 59 oftheir petition. These are –i. Whereof the Petitioners pray that it be determined and declared that the 1st Respondent,Ogbeni Rauf Adesoji Aregbesola was not duly elected by a majority of lawful votes cast in the OsunState Governorship election held on the 9th of August, 2014 and therefore his election is null and void.ii. That it be declared that SENATOR IYIOLA OMISORE was duly elected and ought to havebeen returned as duly elected Governor of Osun State having scored the highest number of lawfulvotes cast at the election held on the 9th August, 2014 and satisfied the provisions of the 1999Constitution of the Federal Republic of Nigeria and Electoral Act, 2010 (As Amended) to be so declared.iii. In addition, that SENATOR IYIOLA OMISORE be declared as the winner of the Osun StateGovernorship election held on the 9th of August, 2014, based on the results obtained at the physicalrecount and re-examination by and before the Tribunal or otherwise of the votes from the affected oraforementioned Local Governments, Wards, Units and/or Centres.

OR IN THE ALTERNATIVE;iv. That the Osun State Governorship election held on 9th August, 2014 having been vitiated bysubstantial non-compliance with the mandatory statutory requirements which has substantially affectedthe validity of the election in the Units and Wards of the Local Government Areas being challenged bedeclared nullified or cancelled and the 3rd Respondent be ordered and or directed to conduct freshelections for office of the Governor of Osun State in the affected areas.v. And cost of the Petition.In response to the petition, all the three sets of Respondents joined issues with the Petitioners byfiling their respective replies incorporating objections to the competence of the petition. The 1st

Respondent filed his reply on 25th September, 2014. The 2nd Respondents’ reply was filed on 20th

September, 2014 while that of the 3rd Respondent was filed on 19th September, 2014.In further response to the replies files by the respective Respondents, the Petitioners filed repliespursuant to the provision of paragraph 16(1) of the 1st Schedule to the Electoral Act (as amended).The Petitioners’ reply to the 1st Respondent’s reply was filed on 14th October, 2014; reply to the 2nd

Respondent’s reply was filed on 14th October, 2014; whilst the reply to the 3rd Respondent’s reply wasalso filed on 14th October, 2010.It is also important to add here that the 1st and 3rd Respondents in addition to the aforementionedreplies all filed interlocutory applications challenging the competence and indeed jurisdiction of the

tribunal to entertain the extant petition. For purposes of clarity, the applications are identified clearlyas follows:1. The motion filed by 1st Respondent dated 16th October, 2014 challenges the locus standi of

the Petitioners to present this petition.2. The motion dated 21st October, 2014 also filed by the 1st Respondent seeks an order of court

striking out the petitioners’ reply to 1st Respondent’s reply, having been filed out of time, thusinvariably affecting the petitioners’ application for the pre-trial session. The motion urges thedismissal of the petition in its entirety as having been abandoned.

3. The motion filed by 3rd Respondent on 29th October, 2014 raises a similar issue covered by(2) above concerning the petitioners’ reply to the 3rd Respondent’s reply.

4. The second motion on behalf of the 3rd Respondent seeks for an order of court striking outcertain paragraphs of the petition.

Pre-hearing sessions were then held in accordance with the provisions of paragraph 18 of the 1st

Schedule at which all the parties, as represented by their respective learned counsel fully participated.Indeed at the commencement of the pre-hearing session, the tribunal was called upon to determinewhether these objections should be heard and determined first or be taken along with the substantivepetition. The tribunal in a considered ruling dated 4th November, 2014 ordered that the four (4)motions pending shall in the overall interest of justice be taken along with the petition having carefullyconsidered the peculiar circumstances of the extant petition including the constraint of time.At the end of the session, this tribunal on 6th November, 2014 issued a pre-hearing report whichencompassed all matters agreed to by all parties with respect to the trial of the petition. From theissues filed by all the counsel as those that have arisen for determination in this petition, we discerned3 issues as those arising for determination in this petition. These are –“1. Whether or not this Tribunal has jurisdiction to entertain this petition.2. Whether the Governorship election conducted in Osun State on the 9th day of August 2014

was vitiated by reasons of corrupt practices, irregularities and substantial non-compliancewith the provisions of the Electoral Act, 2010 (as amended), the INEC Manuals as well as theGuidelines for the conduct of election.

3. Whether the 1st Respondent was validly returned as the candidate, who polled the majority ofthe lawful votes cast at the Governorship election conducted by the 3rd Respondent in OsunState on the 9th day of August, 2014.”

All the counsel adopted these issues in their respective final addresses as those calling fordetermination in this petition. On 23/1/2015 when the case came up, learned counsel on either sideadopted their respective written final addresses. They further made oral summations of their respectivecontentions and urged upon this Tribunal, in turn, either to dismiss or uphold the petition.In proceeding to determine these broad issues, we have had a good privilege of detailed andimpressive written and oral final submissions of the respective learned senior counsel on all contendingsides, and we shall endeavour to refer to their submissions as we consider needful in the course ofthis judgment.We shall hereunder deal with these issues.ISSUE 1Whether or not this tribunal has jurisdiction to entertain this petition.It is important to at the onset reiterate that the above omnibus or umbrella issue is a product of thevarious motions and objections challenging the competence of the petition which the tribunal deferredto consider together with the substantive petition. The objections bother variously on the locusstandi of the petitioners, complaints on the validity of certain paragraphs of the petition and thealleged failure to file petitioners’ replies within time which invariably affected the pre-trial session andwhich allegedly undermined the competence of the petition itself.We therefore consider it imperative to start with a consideration of these various outstanding motions/objections.As stated earlier, the 1st Respondent by his motion dated 16th October, 2014 challenged the locusstandi of the petitioners to present this petition. The 1st Respondent similarly raised this point ofobjection in his reply. The grounds of the application as contained on the motion paper are asfollows:i. The Petitioners have no locus standi to present this Petition not having shown

in the Petition that they have the right to present the petition.ii. Flowing from paragraph (i) above, the Petitioners also have no locus standi to

present this petition.iii. The Petitioners did not meet all the conditions precedent to the presentation of

the petition.iv. In the foregoing premises, this tribunal has no jurisdiction to entertain the

petition and the same should be dismissed or struck out.

In their address on the point, it was submitted that for a suit to be capable of being entertained by acourt, the court must possess requisite jurisdiction and that in determining the question of jurisdiction,the court usually considers the well known conditions laid down by the Supreme Court in the case ofMadukolu V. Nkemdilim (1962)2 SCNLR 341 and that one of such elements is the fulfillment of anycondition precedent to the exercise of that jurisdiction and that the matter must have been initiatedby the due process of law.It was contented that the petitioners have here failed to fulfill the condition precedent to the exercise

of the jurisdiction by this tribunal in that they neglected and/or failed to state in their petition that theyhave a right to present the said petition as clearly provided for by paragraph 4(1) (b) of the FirstSchedule to the Electoral Act 2010 and that the failure to state the right to present the petitionmakes the petition liable to be struck out. The case of Ezeke V. Dede (1999)5 N.W.L.R (pt.601)80at 91 of E-F was referred to.It was also submitted that the failure to state this right to present the petition bothers on the locusstandi of the petitioners to present the petition which is a jurisdictional issue touching on the competenceof the tribunal or court to adjudicate on the issue. The cases of Egolum V. Obasanjo (1999)7N.W.L.R (pt.611)355 at 390; Ehinlanwo V. Mimiko (2013)LPELR-20321 and Effiong V. Ikpeme(1999)6 N.W.L.R (pt.606)260 at 271 were cited.It was again submitted that the consequence of noncompliance with the provision of paragraph 4(1)supra is that the petition is liable to be struck out under paragraph 4(9) of the Electoral Act 2010, asamended.It was further submitted that though the word “may” appears in paragraph 4(9) suggestive that thetribunal has a discretion to determine whether to strike out the petition or not for failure to comply withparagraph 4(1), it was contented that where the petition can no longer be amended to include whatis missing, it would accord with justice to strike out the petition.It was also the contention of 1st Respondent that the intention of the legislature here is to construethe word “may” in its mandatory effect and that where the word is used in relation to object ofexercise of a power which is to effectuate a legal right, the word ought to be construed as compulsoryor imposing an obligatory duty. The cases of Mokelu V. Federal Commissioner for Works andHousing (1976)LPELR-1904 (SC) and Adegbenro V. Akintilo(2009)LPELR-4423(CA) were cited.It was finally contented that the failure to comply with the provision of paragraph 4(1)(b) is fatal andthat where a statute has prescribed the mode of doing a particular thing, that mode must be adoptedand not varied. The case of Ojukwu V. Yaradua (2009)5 EPR 792 at 795 was cited. The court wasurged to strike out the petition.In their written submissions in response dated 22nd October, 2014 and filed same date, the petitionerscontend that the objection lacks merit and that they have disclosed their locus standi to present andmaintain the petition having duly satisfied the provision of paragraph 4(1)(b) of the First Scheduleto the Electoral Act (as amended).It was submitted that in this case, the petition which is the document that guides the tribunal indetermining jurisdiction is clear as to who the petitioners are and that this satisfied the provision ofSection 137 of the Act.It was submitted that paragraph 2 of the petition states clearly that the 1st Petitioner was a candidateand sponsored by the 2nd Petitioner in the gubernatorial election held on 9th August, 2014. Furtherthat by paragraphs 11 and 12 of the petition, the 1st Petitioner stated that he has the right to bereturned at the said election having polled the highest number of lawful votes and ought to be returnedas opposed to the 1st Respondent who was wrongly returned. It was then submitted that theseparagraphs adequately satisfied the provision of paragraph 4(1)(b) (supra).It was further submitted that the use of the word “may” in paragraph 4(9) on the effect of failure tocomply with paragraph 4(1) (b) empowers or gives a discretion to the tribunal to exercise in thematter. That in law, the word “may” is generally construed as permissive and not mandatory anddoes not foist on a party a legal duty which must be performed or which if not performed at the painof punishment. The cases Ohanaka V. Achugwo (1998)9 N.W.L.R (pt.564)37 and Oko V. Igweshi(1997)4 N.W.L.R (pt.497)46 were cited.It was then contented that even if assuming but without conceding that paragraph 4(1)(b) was notcomplied with, that by virtue of paragraph 4(9), such noncompliance can be treated as an irregularitywhich does not affect the competence of the petition. It was finally submitted that the petitionershave the requisite locus standi to maintain the petition and that the objection be accordingly dismissed.In a reply on points of law dated 24th October, 2014, the 1st Respondent contends that the Petitionersdid not clearly comprehend the provisions of the Act and that in the extant case, the petitioners didnot comply with the mandatory requirement of specifying the right of a petitioner to present thepetition.It was further submitted that the reference by petitioners to paragraphs 2 and 11 of the petition onlyshows that there was compliance with paragraph 4(1) (d) of the First Schedule to the Act but notparagraph 4(1) (b) which requires a petitioner to specify the right he has to present a petition.Now it is trite principle of general application that the question of locus standi of a plaintiff or petitioneras the case may be is a crucial matter touching on the competence and the jurisdiction of the courtto adjudicate on the suit or petition. The Court can only exercise jurisdiction over a suit when thePlaintiff has standing to sue. Where a Plaintiff lacks locus standi, the Court will equally lack thejurisdiction to entertain the matter notwithstanding that the claim is within the jurisdiction of the Court.In the case of Green V. Green (1987)3 N.W.L.R (pt.61)480 at 500, the Supreme Court (per Oputa,JSC of blessed memory) put the law succinctly in the following terms:“If a Plaintiff is incompetent to bring the action, the Court as well will not be competent tohear an incompetent Plaintiff for then the action would not have been brought upon fulfillmentof a condition precedent to the exercise of the Court’s jurisdiction.”The term locus standi denotes legal capacity to institute proceedings in a court of law for redress orassertion of a right enforceable at law. See Attorney General, Kaduna State V. Hassan (1985)2N.W.L.R (pt.8)453 at 496. It is often used interchangeably with terms like “standing” or “title tosue.” The fundamental aspect of locus standi is that it focuses on the party seeking legal redress ina Court, and not on the issues he presents to the Court for adjudication. See Adesanya V. Presidentof Nigeria (1981)5 SC 112; (1981)2 N.C.L.R 358. In determining whether a Plaintiff has locusstandi, it is the cause of action that has to be examined. See Buraimoh Oloriode & Ors V. Oyebi &Ors (1984)5 SC 1 at 28. A cause of action is the entire set of circumstances giving rise to an enforceableclaim. It is in effect the fact or combination of facts giving rise to the right to sue, and consists of twoelements, viz: (i) the wrongful act of the Defendant which gives the Plaintiff his cause of complaint,and (ii) the consequent damage. See Ibrahim V. Osim (1988)3 N.W.L.R (pt.82)257; Thomas V.Olufosoye (1986) N.W.L.R (pt.18)669.When a court is considering an objection to the locus standi of a Plaintiff to maintain an action, thefollowing have been distilled from a long line of cases as guiding principles: (a) the Plaintiff mustshow that his civil rights and obligations have been or are in danger of being infringed; (b) the factthat a person may not succeed in an action does not have anything to do with whether or not aperson has standing to sue; (c) whether a person’s civil rights and obligations have been affecteddepends on the particular facts of the case; and (d) the Courts should not give an unduly restrictiveinterpretation to the expression locus standi. See Fawehinmi V. Akilu&Anor (1987)4 N.W.LR(pt.69)797; Nnadi V. Okoro (1998)1 N.W.L.R (pt.535)573 at 600; Attorney General, Kaduna StateV. Hassan (1985)2 N.W.L.R (pt.8)483.Now in resolving this critical issue of locus standi and bearing in mind the peculiarity of electionmatters, it is the petition itself and the applicable legislation or Electoral Act which governs the entireelection that we must resort to in order to ascertain whether the petitioners have disclosed sufficientinterest to invest them with locus standi.Now as pointed out by learned counsel to the petitioners, Section 137(1) of the Electoral Actstipulates clearly who can present an election petition as follows:(a) A candidate in the election(b) A political party which participated in the election.

To this end, the Petitioners averred in their petition as follows:1. This is the petition of Senator Iyiola Omisore and Peoples Democratic Party

(PDP) whose names are herein subscribed and hereinafter referred to as thePetitioners.

2. The 1st Petitioner, Senator Iyiola Omisore, voted at the election for the office of Governorof Osun State in the Governorship Election held on 9th August, 2014 and was a candidatefor the office of Governor in the said election on the platform of the 2nd Petitioner and

states that he has the right to be returned as elected.3. The 2nd Petitioner is one of the registered political parties in Nigeria that fielded

candidates to contest in the election for office of Governor of Osun State held on 9th

August, 2014.

Paragraph 4(1) of the First Schedule to the Electoral Act 2010 then proceeds to stipulate asfollows:“An election petition under this Act shall:(a) Specify the parties interested in the election petition.(b) Specify the right of the Petitioner to present the election petition(c) State the holding of the election, the scores of the candidates and the person returned

as the winner of the election; and(d) State clearly the facts of the election petition and the ground or grounds on which the

petition is based and the relief sought by the Petitioner.”

It is also apt to state here the basic principle of interpretation that the provisions of a statute are to beconstrued as a whole and not in bits and pieces in order to achieve the desired goal of the legislation.For us, it appears clear that to consummate a person’s right to present a petition, it is a legal imperativethat he should cumulatively comply with not only the provision of Section 137 but also paragraph4(1) (supra). In Effiong V. Ikpeme (supra) the Court of Appeal considering a similar provision heldas follows:“There is no doubt or dispute that Paragraph 5(1) of Schedule 5 as stated above is veryfundamental. It prescribes what a petition shall contain to constitute a valid petition. It enjoinsthe Petitioner to specify those interested in the petition; to show the right of the Petitioner topresent the petition; to state the holding of the election; the scores of the candidates: theperson returned as winner of the election, and to state clearly the ground or grounds onwhich the petition is based. These are clear statutory requirements which the Petitionersmust comply with. They are conditions precedent to proper and valid presentation of a petition.None compliance with the statutory provisions renders the petition a nullity. See Ben ObiNwabueze &Ors Okoye (1988)4 N.W.L.R (pt.91)664 of 668-669; Ezeobi V. Nzeka (1989)1 N.W.L.R(pt.98)478 at 487.”In the extant objection, the narrow question is whether there has been requisite compliance withparagraph 4(1) (b) which provides that the petitioner should “specify the right of the Petitioner topresent the election petition.”A logical question that arises is what does the above provision inparagraph 4(1) (b) connote or mean?The above provision as can be deciphered from the various pronouncements of their respectedLordships of the Supreme Court in Egolum V. Obasanjo (supra) where a similar provision wasconsidered and pronounced upon would mean no more than a party or petitioner stating clearly anddefinitely the capacity in which he relies on to bring the petition. To paraphrase some of the noble lawlords, to “specify” means to explain clearly, to mention specifically, to state in full and explicit terms,to particularize and explain in detail. The whole essence of this provision in our opinion is simply toput the adversary on notice on all material facts which denotes the capacity in which the party relieson to present his petition.The key question for us is whether by this petition, the petitioners have crossed the threshold requiredby paragraph 4(1) (b)?.In this respect, we have carefully read the entirety of the contents of the petition, and while it cannotescape the accusation of perhaps inelegance, we cannot justify the submission that the petitionershave not supplied with sufficient clarity and particularity the right to present the extant petition.In the extant petition, both 1st and 2nd Petitioners have stated clearly the capacities on which theextant petition is predicated. The 1st petitioner was a candidate for the Governorship Election held inOsun on 9th August, 2014 on the platform of 2nd Petitioner. See Paragraphs 1-4 of the Petition.On the facts as disclosed in the petition, it is apparent that the petitioners actually contested theelection. For a person to actually contest the election, the presumption is that he met the necessaryrequired criteria and was duly cleared by INEC to contest. It is not in dispute that after the electionsconducted by INEC in which the petitioners fully participated, results were duly declared pronouncing1st Respondent as the duly elected Governor of Osun State. The Petitioners then went ahead tomake various allegations with respect to the conduct of the elections and the award of votes uponwhich they predicated the final reliefs sought in the petition. We are of the view here that there issufficient supply of the necessary facts of the right of the Petitioners to present the extant petition.We have carefully read the Supreme Court case of Egolum V. Obasanjo (supra) relied on byRespondents. While we find the decision valuable in the construction of the import of Paragraph 4(1)(b), we are however of the view that it is not helpful or apposite to the case of the Respondents andis distinguishable. In that case, the petitioner was not even a candidate in the presidential election.He however filed the petition claiming to have a right to contest under the then applicable provision ofSection 50(1) of Decree No.6 of 1990. It may perhaps be necessary to state that this provision hassince been repealed and does not appear in the 2010 Electoral Act (as amended). Having not beena candidate and having not shown that he participated in the presidential elections under any platform,he however sought extensive reliefs including the cancellation of the elections as void and that it bedetermined that the winner of the said presidential elections was not duly elected or returned and thathe petitioner was duly elected and ought to have been returned.The Supreme Court held that in such circumstances, it was incumbent on the Petitioner/Appellant tostate in full and explicit terms his right to present the election petition by complying not only withSection 50(1) but also Paragraph 5(1) (b) of the Schedule to the Decree as it would be unsatisfactoryto locate the locus standi of a petitioner to question an election petition by merely inserting in thepetition that “a person has a right to contest at the election “without supplying the necessary factson which the locus standi can be located.We have similarly read the case of Effiong V. Ikpeme (supra) which is similarly valuable but clearlynot availing in the extant case. That case never dealt specifically with the application of Paragraph4(1) (b) or a similar provision. The complaint was specifically targeted at non-compliance withparagraph 5(1) (a) and (c) which is in pari-materia with Paragraph 4(1)(a) and (c) and the applicationof Section 50(2) of the Schedule to the Decree on the principle of waiver and acquiescence.Indeed Obadina J.C.A stated as follows in capturing the pith of the issue:“A cursory look at the petition presented by the 1st Respondent before the tribunal at pages 2-5 of the record of proceedings clearly shows that the petition does not specify the partiesinterested in the election petition and does not state the holding of the election, the scores ofthe candidate and the person returned as the winner of the election. In other words, thepetition has failed woefully to comply with the mandatory provisions of paragraph 5 of Schedule5 to Decree No.36 of 1998. It is therefore void.”This case is therefore unavailing.In the final analysis, we are of the view that the petition in this case is sufficient enough andcomprehensive and has not run foul of the provision of Paragraph 4(1)b of the Schedule. Thewhole essence of pleadings is simply to ascertain with certainty the various matters in dispute betweenparties. It defines the issues in controversy and indeed narrows the scope of controversy betweenparties thereby preventing a surprise been sprung on either party. See Odogwu V. Odogwu (1990)4N.W.L.R (pt.143)224 at 234; Egolom V. Obasanjo (supra).The extant petition has sufficiently crossedthis threshold.Having held that the locus of the Petitioners have been precisely and sufficiently disclosed, we do notconsider it necessary in the circumstances to consider the application of paragraph 4(9) of theSchedule and the construction to be placed on the word “may” used in the said provision. It hasbecome academic in the circumstances.We consider it necessary to now take the application by 3rd Respondent seeking to strike out certainparagraphs of the petition before considering the applications relating to the propriety of the repliesallegedly filed by the petitioners out of time and the application for pre-hearing session.

In the extant application under consideration, the 3rd Respondent sought for the following reliefstogether with the grounds as follows:1. An order pursuant to Sections 6(6)(b) of the Constitution of the Federal Republic of

Nigeria granting leave to the 3rd Respondent to file and/or move this application beforethe pre-hearing session.

2. An order pursuant to Sections 6(6) (b) of the Constitution of the Federal Republic ofNigeria, 1999 (as amended), Order 13 Rules 4(4) & (5) of the Federal High Court (CivilProcedure) Rules 2009 and Paragraph 4(1)(d) & (9) of the First Schedule to the ElectoralAct 2010 (as amended), striking out paragraphs 26, 27, 34, 35, 36, 37 and 38 of thePetition for being imprecise and vague as the Polling Units affected by the allegedanomalies were not specifically mentioned or identified.

3. An order pursuant to Sections 6(6)(b) and 36 of the Constitution of the Federal Republicof Nigeria, 1999 (as amended) striking out paragraphs 30, 34, 35 and 37 for makingcriminal allegations against persons who are not parties to the petition.

4. An order pursuant to Sections 6(6)(b) and 36 of the Constitution of the Federal Republicof Nigeria, 1999 (as amended) striking out paragraphs 8, 26, 28, 29, 30, 31, 32 and 33 onthe ground that the facts pleaded therein are pre-election matters.

5. And for such order or other orders as this Honourable Tribunal may deem fit to makein the circumstances.

The grounds of the objections are as follows:(i) Paragraphs 26, 27, 34, 35, 36, 37 and 38 of the Petition are imprecise and vague as the

Polling Units, Wards and Local Government affected by the alleged anomalies werenot specifically mentioned or identified.

(ii) Paragraphs 30, 34, 35 and 37 of the Petition make criminal allegations against personswho are not parties to the petition.

(iii) Paragraphs 8, 26, 28, 29, 30, 31, 32, 33 pleaded facts which are relating to and/orconnected with pre-election matters.”

The application was supported by a 13 paragraphs affidavit and a written address in which threeissues were raised for determination as follows:1. Whether paragraphs 26, 27, 34, 35, 36, 37 and 38 of the petition are not vague, imprecise,

not clearly stated, lacking in accessory particulars, and therefore liable to be strikeout.

2. Whether paragraphs 30, 34, 35 and 37 of the petition, which contain allegation ofcriminality against named and unnamed persons who are not parties to this petition,are not liable to be struck out.

3. Whether paragraphs 8, 26, 28, 29, 30, 31, 32 and 33 of the Petition which involve matterswhich occurred before the conduct of the election are not pre-election matters notcognizable in an Election Petition and therefore liable to be struck out.

On issue 1, learned senior counsel for the 3rd Respondent contends that the above paragraphs 26,27, 34-38 are vague, imprecise and that the necessary particulars that would enable the adversaryknow the case he would meet were not supplied or stated. That in the extant situation, the petitionershave alleged irregularities in some polling units, wards and local governments without specifying ormentioning the affected units, wards and local governments.It was contented that this failure to clearly particularize violated the provisions of Order 13 Rule 4(4)of the Federal High Court Civil Procedure Rules and Paragraph 4(1)d of the First Schedule tothe Electoral Act (as amended) which makes the said offending paragraphs liable to be struck out.The cases of Ojong V. Duke (2003)14 N.W.L.R (pt.841)581 and Offornah V. Ajaegbo (2000)1N.W.L.R (pt.641)498 were referred to.On issue II, it was the contention of learned senior counsel that the paragraphs subject of complaintmade copious allegations of criminality against named and unnamed persons without joining them tothe petition to enable them defend themselves and be heard on the allegations made out againstthem. This failure to join these persons it was contented violated the provision of Section 36(1) ofthe Constitution and consequently makes the offending paragraphs incompetent and also liable tobe struck out. The case of Egolum V. Obasanjo (1999)7 N.W.L.R (pt.611)335 was cited.On Issue III, it was the contention of learned senior counsel for the 3rd Respondent that the paragraphsin issue touch on the state of the register of voters and also actions taken thereon, before the conductof the election which are all pre-election matters as they preceded the holding of the general electionand are not cognizable in an election petition. The provisions of Sections 9, 10, 15,19 and 21 of theElectoral Act 2010 were referred to.It was contended that these issues raised by these paragraphs are clearly pre-election matters whichcan only be heard by a regular court while post-election matters are to be heard by election tribunals.The cases of Amaechi V. INEC (2007)18 N.W.L.R (pt.1065)170 at 190 and Ibrahim V. INEC (1999)8N.W.L.R (pt.614)344 were cited.The court was urged to strike out these offending paragraphs.In response, the petitioners filed an 11 paragraphs counter-affidavit together with a written address inwhich the three issues raised by the 3rd Respondent were adopted as the issues to be considered.On issue 1, it was the contention of learned senior counsel for the Petitioners that the paragraphscomplained of are neither vague nor imprecise and that the extant complaint is borne out of lack ofproper appreciation of the case made out by the petitioners.It was submitted that the wards and units in the 17 local governments areas under challenge asstated in paragraphs 26, 27, 34-38 of the petition are fully tied to all the other paragraphs of thepetition where the necessary particulars of the units and wards of all the local governments underchallenge were fully and clearly stated and to which all the respondents have filed their replies andjoined issues. The court was urged to resolve issue 1 against 3rd Respondent.On issue II, it was contended that the contention of the 3rd respondent is misconceived in that it is nolonger the law that where allegations of criminality are made against named and unnamed personswho are not named in the petition, that the petition be struck out. The current position, it is submitted,is that it is not necessary to join Electoral officers as parties to an election petition where the ElectoralCommission is itself a party. The cases of INEC V. A.C (2009) AII F.W.L.R (pt.480)793; Oke V. INEC&Ors (2008)LPELR-8619 were cited.It was further submitted that reading through the paragraphs complained of, there are variouslydirected against 1st and 2nd Respondents on one hand, and against 3rd Respondent or their agents onthe other hand and who need not be joined or be specifically mentioned. The cases of Dina V. Daniel&Ors (2009)LPELR-4040 and INEC &Ors V. Ejezie & Ors (CA/E/EPT/43/2008)at 86 were cited.On issue 3, learned senior counsel for the Petitioners submitted that the issues in the paragraphscomplained of which occurred before the conduct of the election are not pre-election matters as theaverments raised dealt with the effect of the voters register and or the effects of the acts of the 3rd

Respondent on the election conducted on 9th August, 2014 and which the tribunal could properlyentertain.Now without making light the objections of learned senior counsel to the 3rd Respondent on this pointand the authorities cited, we hold the view that at this stage of the proceedings, particularly in view ofthe contested assertions at plenary hearing, what is of utmost importance to this tribunal and whichis the fundamental issue which critically remains to be resolved is whether or not from the evidencealready led on record, the petitioners have succeeded in proving the allegations of electoralmalpractices contained in their petition against the Respondents or established a nexus between thenamed and unnamed alleged perpetrators of the criminal activities and the 1st Respondent who wasreturned as the winner of the election, as the law requires them to do in order to succeed.In the context of the streamlined issues on the pleadings and the contested assertions at trial, theissue with respect to the extant objection appear now largely academic with only peripheral significance

if any at all. In Overseas Construction Ltd V. Creek Enterprises (Nig) Ltd & Anor (1985)3 N.W.L.R(pt13)407 at 418, the Supreme Court instructively stated as follows:“By and large, every disputed question of fact is an issue. But in every case there is alwaysthe crucial and central issue which if decided in favour of the plaintiff will in itself give himthe right to the relief he claims subject of course to some considerations arising from othersubsidiary issues. If however the main issue is decided in favour of the defendant, then theplaintiff’s case collapses and the defendant wins…”

In our view the question of the propriety or otherwise of certain few paragraphs of the petition isclearly not decisive in the context of the far reaching complaints made in the other paragraphs of thepetition.The foregoing notwithstanding, we intend to however out of abundance of caution now proceed tobriefly give our views.With respect to the point of objection that certain paragraphs of the petition are vague, we are of theconsidered opinion that the said paragraphs read along with the other paragraphs of the petitionsufficiently meet the required degree of pleading to give the Respondents sufficient notice of what isbeing pleaded. Where therefore certain paragraphs of a pleading as in this case define certainissues or facts in general terms and thereafter other paragraphs take those allegations one after theother to proffer explanation with particularity and sufficient clarity, all the facts contained in the entiretyof the pleadings or petition must be taken together as providing the necessary particulars on whichthe petition is predicated. How the petition is formulated may be a question of style or choice but wecannot see how it is objectionable so long as the issues in controversy have been properly defined orstreamlined and nobody is taken by surprise. In this case, all the Respondents in their respectivepleadings have variously joined issues on the allegations covered by these disputed paragraphs andcontested same at plenary hearing to detract from the validity of the allegation made that theparagraphs are vague and imprecise. We therefore cannot locate how Paragraph 4(1)(d) of theFirst Schedule of the Electoral Act was breached. Issue 1 is thus resolved against 3rd Respondent.Issue II relates to whether paragraphs 30, 34, 35 and 37 which is said to contain allegations ofcriminality against named and unnamed persons who are not parties to the petition and thus liable tobe struck out.Now these paragraphs of the petition complained of in material content alleged varying criminalelectoral offences ranging from massive manipulation of the voters registration inclusive of allegedmultiple registration of supporters of 1st and 2nd Respondents, voting by unregistered and unqualifiedpersons and diversion of ballot papers by a named agent of 3rd Respondent and unnamed membersand agents of 1st and 2nd Respondents. Upon a proper examination of the said paragraphs, we findthat these paragraphs cannot be treated in isolation or independent of other paragraphs which theyare tied to; we also note that in some of these paragraphs, allegations of crime were lumped withthose that allege civil malpractices with respect to the election being challenged. Therefore, toaccede to the objection of the 3rd Respondent may engender the risk of striking out some paragraphsof the petition which can only truly have any meaning when read together with other paragraphs andalso striking out some paragraphs in which allegations other than those bordering on crime alonewere made.We do not also consider it apposite at this stage of the proceedings to venture into mutilating thepleadings in order to sever those aspects that deal with criminal allegations from those that allegeelectoral civil wrongs. This is more so that evidence is already on record and we are nonethelessmindful of the position of law with respect to the standard of proof required in civil cases generallyand where also allegations of crime are in issue in civil cases. See Sections 134 and 135 of theEvidence Act 2011 (as amended).At this stage of the proceedings and as stated earlier, this is not such a critical issue in the context ofthe real issue which remains to be resolved or determined. See Oke V. INEC &Ors (supra). Wehave however carefully read the relevant provisions of the Electoral Act in relation to the issue ofjoining named and unnamed persons as parties to an action and in our opinion, certain fundamentalquestions arise, to wit- whether in an election petition, a Petitioner can successfully prove allegationsof electoral malpractices that bother on criminality as provided in Chapter VII (Sections 117-132) ofthe Electoral Act against persons not joined as parties to the petition; when the Act itself, videSection 137 (2) and (3), and paragraph 49 of the First Schedule, has prescribed and limitedthose who can be sued as Respondents to an election petition? The question goes further, on theother hand, whether, where the Petitioner proceeded to join the said named persons, such personswould have been proper parties to the petition, within the contemplation of the provision of Section137 (3) (a) and (b) of the Electoral Act? This tribunal is of the opinion that the intendment of theprovision of Section 149 of the Electoral Act would have been rendered dormant, ineffective andunachievable if the Petitioner is precluded from laying before the tribunal, allegations bordering oncriminality involving persons who were not joined as parties to the petition, just on the ground thatthey will not be afforded the opportunity to defend such allegations.

Section 149 of the Act provides thus:“The commission shall consider any recommendation made to it by a tribunal with respect tothe prosecution by it of any person for an offence disclosed in any election petition.”It therefore remains to be seen, under what circumstances a tribunal can come to a conclusion thatan offence has been disclosed in any election petition against any person and thus appropriatelyrecommend such a person to the Commission for prosecution, when such paragraphs in the petitionwhere such crimes were disclosed are invariably not allowed to stand.In the present circumstances, and notwithstanding the foregoing comments, the course this tribunalshall take, in order not to sacrifice substantial justice on the altar of technicalities, is to proceed in thecourse of this judgment, to properly examine and analyze the evidence of the Petitioners’ witnessesto see if they have been able to establish beyond reasonable doubt, the allegations of crime madeagainst the named and unnamed persons in the petition. We shall therefore refrain from striking outthose paragraphs of the petition as urged on us by the 3rdRespondent’s learned senior counsel.With respect to issue 3 and the point of objection that paragraphs 8, 26, 28, 29, 30-33 relate to pre-election matters, we have also here carefully read these paragraphs and we note upon a properexamination that some of the paragraphs have no nexus with pre-election matters, while in some,we find allegations relating to pre-election matters lumped with post-election matters. Crucially wealso find that on the record, evidence have been led on some of these contested assertions.As stated earlier with respect to some of the other objections, it would not be tidy and perhaps evencause some prejudice to seek to strike out these paragraphs or to attempt to mutilate or sever thoseaspects of some of the paragraphs that deal with pre-election matters and those that deal with postelection matters.Here too, we are of the view that the fair approach is to proceed to critically examine and analyze theevidence on record and to then determine whether the petitioners have crossed or met the thresholdof the allegations made. We therefore also refrain from striking out these paragraphs. The applicationby 3rd Respondent accordingly fails.We now come to the last set of Applications by 1st and 3rd Respondents which in substance containsthe same prayers. To avoid unnecessary duplication, we shall in this judgment harmonize the essenceof the two applications and the arguments proffered by both set of Respondents and the response byPetitioners.Now the reliefs sought by 1st Respondent on the application dated 21st October, 2014 and the groundsare as follows:1. An order of this Honourable Tribunal striking out the Petitioners’ Reply to the 1st

Respondent’s Reply the former having been filed out of the time prescribed by theRules of this Honourable Tribunal;2. An order of this Honourable Tribunal deeming the Petition as abandoned for the

Petitioners’ failure to apply for the issuance of Notice of Pre-hearing session after theclose of pleadings;

3. An order of this Honourable Tribunal dismissing the Petition for failure of the Petitionersto apply for issuance of notice of pre-hearing session before the expiration of the timeprescribed by the rules of this Honourable Tribunal.And for such further or other order(s) as this Honourable Tribunal may deem fit tomake in the circumstances.

The grounds upon which the application is sought are as follows:1. The Petitioners have five days from the date of service of the 1st Respondent’s Reply

within which to file their own Reply.2. The Petitioners filed their Reply to the 1st Respondent’s Reply to the Petition out of

time and thereby making the said Reply of the Petitioners incompetent.3. Pleadings having been effectively closed with the filing and service of the 1st

Respondent’s Reply which was served on the Petitioners on the same day the Repliesof the 2nd and 3rd Respondents were served on the Petitioners, the Petitioners have 7days thereafter to apply for issuance of pre-hearing notices by this Honourable Tribunal.

4. The Petitioners did not make the required application within the time stipulated by theRules of the Honourable Tribunal the consequence of which entitles the Respondentsor any of them to apply for the dismissal of the Petition.

5. The Petitioners’ failure to apply for issuance of Pre-hearing Session is deemed asabandonment of the Petition.

6. The Petitioners’ failure stated in paragraphs 2-5 in these grounds robs this tribunal offurther exercise of jurisdiction to continue the hearing of this petition.”

The application is supported by a 14 paragraphs affidavit and a written address in which 3 issueswere raised as arising for determination. The Petitioners in opposition filed a 10 paragraphs counter-affidavit with 3 annexures marked as Exhibits A, B, C together with a written address in compliancewith the rules wherein 2 issues were raised as arising for determination.On the part of the 3rd Respondent, their application seeking the same reliefs as above is supported byan affidavit of 19 paragraphs. A written address was filed in support in compliance with the applicablerules in which 2 issues were raised as arising for determination. The Petitioners here also filed a 10paragraphs counter affidavit with 3 annexures marked as Exhibits A, B, C. A written address wasalso filed in support.In the written addresses of both set of Respondents, two critical issues in substance were addressedas follows:1. Whether the Petitioners Reply dated 13th October, 2014 but filed on 14th October, 2014

is competent before the Honourable Tribunal.2. Whether the Petitioners have not abandoned their petition having failed to apply for

the issuance of notice of prehearing in form TF007 within the time stipulated by the lawmaking the petition liable to being dismissed by the tribunal.

Now the substance of the submissions by both learned senior counsel for 1st and 3rd Respondentscan be summarized succinctly as follows: On issue 1, it was contended that the petitioners’ replies tothe 1st and 3rd Respondents’ respective replies were filed out of time and are therefore incompetent.That by paragraph 16(1) and (2) of the First Schedule to the Electoral Act, the Petitioners in thispetition have 5 days within which to file any reply to the replies of the Respondents. That in this case,the replies of Respondents was served on the Petitioners on 9th October, 2014 but that the Petitionerspurportedly filed a reply to each of the replies by Respondents dated 13th October, 2014 on 14th

October, 2014 outside the 5 days provided for clearly by the rules. The Respondents submitted thatby the rules of computation of time in election matters, the 9th October, 2014 when the Respondentsreplies were served on the Petitioners is to be included in the computation of time within which thePetitioners are expected to file their replies to the Respondents’ replies. The cases of Alataha V.Asin (1999)5 N.W.L.R (pt.601)32; Ogbebor V. Danjuma (2003)15 N.W.L.R (pt.843)403; IkharaileV. Okoh (2009)12 N.W.L.R (pt.1154)1; Ajayi V. Owolabi (2009)LPELR-3672 and Nwoye V.Ikechukwu (2011)LPELR 9195, were cited.It was further submitted that in law where a statute or legislation provides for a particular method ofperforming a duty regulated by the statute, that method and no other method must have to be adopted.The case of Nwankwo V. Yaradua (2010)12 N.W.L.R (pt.1209)518 was cited. The Respondentsfurther contended relying on paragraph 16(2) supra that the time for filing a reply cannot be extendedthereby making the Petitioners’ replies to the Respondents’ replies not only incompetent but outsidethe jurisdiction of the Tribunal and not cognizable in an election petition and accordingly liable to bestruck out or discountenanced.On issue (2), it was submitted by Respondents that by virtue of Paragraph 18(1) of the 1st scheduleof the Electoral Act, 2010 (as amended), the Petitioners were duty bound to apply for the issuanceof pre-hearing notices by the tribunal within 7 days after the filing and service of the Respondents’replies on them or 7 days after the filing and service of the Petitioners’ reply.It was contended flowing from issue (1) that the Petitioners’ replies filed on 14th October, 2014 areincompetent having been filed out of time. That the legal effect here is that the pleadings in thispetition are deemed closed on the date of service of the Respondents replies on the Petitionerswhich is 9th October, 2014 and that the obligation to apply for issuance of Pre-hearing Notice in FormTF007 crystallized on that day. This duty imposed on the Petitioners, it was further submitted, ismandatory by virtue of paragraph 18(4) of the First Schedule in that where there is a failure toapply for the issuance of pre-hearing notices, the petition is liable to be dismissed as abandoned andno application for extension of time shall be entertained. The cases of Enwezor V. INEC (2009)8N.W.L.R (pt.1143)223 at 236; Okereke V. Yaradua (2008)12 N.W.L.R (pt.1100)95 were cited.That by the record of court, the 7 days the Petitioners had to apply for issuance of Form TF007started on 10th October, 2014 after service of their respective replies on the Petitioners and that timeto do so ended on 16th October, 2014. Consequently, the 7 days limit to apply for the issuance ofForm TF007 had lapsed and that same cannot be extended. The petition it was contended is thusdeemed as abandoned and liable to be dismissed.In response, the Petitioners submitted that the contention that they filed their replies outside the 5days as stipulated in the First Schedule of the Electoral Act is misconceived. That it is trite law thatwhere the Electoral Act fails to address issues before the tribunal, that recourse can be had by thetribunal to the Federal High Court Civil Procedure Rules and the Interpretation Act. The cases ofAdefemi V. Abegunde (2004) 15 N.W.L.R (pt.895)1 and Etsakor V. Christopher (2014)14 N.W.L.R(pt.1426)73 were cited. That in this case, there is a vacuum in the interpretation of five(5) days andtherefore recourse should be had to Section 15(4) and (5) of the Interpretation Act which is a toolof legal interpretation that aids interpretation where there is a vacuum or lacuna in any legislation.That by these provisions Sunday and a public holiday will be left out in the computation of a periodthat does not exceed 6 days.It was further submitted that in this case, the Petitioners were served with the Respondents’ replieson 9th October, 2014 and that they had 5 days to file their replies and that by virtue of Section 15 ofthe Interpretation Act, Sunday shall be left out in computing the 5 days within which they were to filetheir reply which clearly meant that the replies of the Petitioner were filed properly and within time on14th October, 2014 after service on them of Respondents’ replies on 9th October, 2014 as provided byParagraph 16(1) of the First Schedule (supra). The decision of the Court Appeal in Ekuk V.Ikon&Ors (2011) LPELR-4045(CA) which is said to be on all fours with the extant case was referredto.On issue II, the Petitioners submitted that they duly and properly applied for issuance of Notice ofpre-hearing. That the Respondents’ replies were served on them on 9th October, 2014. That theirrespective replies were filed on 14th October and served on Respondents on 15th October, 2014which is the date pleadings are deemed to have closed and that they properly applied for issuance ofPre-hearing Notice on 20th October, 2014 and Forms TF007 and TF 008 were issued on 21st October,2014 and served same date which it was submitted complies with paragraph 18(1) of the First

Schedule to the Electoral Act.In their replies on points of law, the Respondents submitted that there is absolutely no lacuna in theprovisions of the Electoral Act which is absolute and comprehensive in itself and therefore neitherthe Federal High Court Rules nor the Interpretation Act has any application in election matterswhich are sui generis. The cases of Dr (Sir) Uche Ezeliora & Anor V. Tony One Week Muonagor& Ors (2011) LPELR-9208; A.C.N V. Murtala Nyako & Ors SC/409/2012 delivered on 5th November,2012, Ikhariale V. Okoh (2009)12 N.W.L.R (pt.1154)1, Adaramola V. Aribisola (2009)LPELR-8515were referred to.With respect to the apparent conflict between the decisions of the Court of Appeal in Etuk V. Ikon(supra) and Dr (Sir) Uche Ezeliora & Anor V. Tony One Week Muonagor & Ors (supra), therespondents contend that the decision of Ezeliora V. Muonagor was delivered on 1st November,2011 while that of Etuk was on 13th October, 2011. The later decision of Ezeliora, it was submitted,ought to be applied in the circumstances.We have here carefully considered the arguments on both sides of the aisle. In our consideredopinion, the two applications by 1st and 3rd Respondents can be determined upon the following issues:1. Whether the Petitioners’ replies dated 13th October, 2014 but filed on 14th October, 2014

are competent before the Honourable Tribunal.2. Whether the Petitioners have not abandoned their petition having failed to apply for

the issuance of notice of prehearing in form TF007 within the time stipulated by thelaw making the petition liable to being dismissed by the tribunal.

We shall take the two issues together.Issue 1 deals with the competence of the replies filed by the Petitioners to the replies of Respondents.In resolving this issue, it is critical to properly situate the facts relating to the filing of the courtprocesses as this would then provide the basis for analyzing and applying the provisions of the law.On the materials before the tribunal, these are common grounds, to wit:1. The Petitioners’ petition is dated 28th August, 2014 and filed same date in the registry of

tribunal.2. The replies of 1st and 3rd Respondents were filed on 25th September, 2014 and 19th September,

2014, respectively.3. By proof or affidavit of service filed by the bailiff of tribunal dated 10th October, 2014, the reply

of 1st Respondent was served on counsel for the Petitioners on 9th October, 2014.4. Equally by proof or affidavit of service filed by the bailiff of the tribunal, the reply of 3rd

Respondent was served on counsel for the Petitioners also on 9th October, 2014.5. The Petitioners’ replies to both 1st and 3rd Respondents’ replies were filed on 14th October,

2014.6. By Exhibit “A” attached to the counter-affidavit of Petitioners, the Petitioners applied for the

issuance of pre-hearing notices on 20th October, 2014.

Now in determining this issue, our first task is to set out the relevant provisions of the First Scheduleto the Electoral Act (as amended). Paragraph 16(1) and (2) of the First Schedule provides thus:“(16)(1): If a person in his reply to the election petition raises new issues of facts in defenceof this case which the petition has not dealt with, the Petitioner shall be entitled to file in theRegistry, within five(5) days from the receipt of the Respondent’s reply, a Petitioner’s reply inanswer to the new issues of fact, so however that:(a) The Petitioner shall not at this stage be entitled to bring in new facts, grounds or prayers tending to amend or add to the contents of the petition filed by him and(b) The Petitioner’s reply does not run counter to the provisions of subparagraph (1) of paragraph 14 of this Schedule.(2) The time limited by subparagraph (1) of this paragraph shall not be extended.”By the above clear provision, where a Petitioner elects to respond to new issues of fact raised in aRespondent’s reply, the Petitioner is expected to file this reply within five (5) days from the receipt ofthe respondent’s reply. The key question here is what does the sentence or phrase “…within five(5)days from receipt of Respondents reply…” really connote?We shall here prefer to take our bearing on the pronouncements of our superior courts on what thewords “within and “from” really import in the context of interpreting provisions relating to computationof time with particular reference to election matters which are sui-generis or in a class of their own.In Ajayi V. Owolabi (2009)LPELR-3672 (CA) at Pages 31-32 paragraphs D-B, the Court of Appealstated the law thus:“The operative words in Section 141 of the Electoral Act are no doubt “within” and “from”.“Within” is a preposition used as a function word to indicate an enclosure or circumstance inthe limits of; not outside the limits of something; or not go beyond the limitation of time. SeeWebster’s Ninth Collegiate Dictionary 1991 Edition and Chambers 21st Century DictionaryRevised Edition. Black’s Law Dictionary with Pronunciation 6th Edition defines “within” whenused relative to time as “before the expiration of”, “not beyond”, “not exceeding” and “notlater than”. “From” on the other hand is a function word to indicate a starting point as: astarting point in measuring or reckoning or in a statement of limits. By their simple grammaticalmeanings therefore, these words connote and convey the meaning that the thirty daysprescribed for the presentation of an Election Petition begins to count from the date of thedeclaration of the results. Thus, a prospective petitioner can only present his petition duringthe continuance of the thirty days commencing from the date the election results weredeclared.”In Ogbebor V. Danjuma (2003)15 N.W.L.R (pt.843)403 at 425; the Court of Appeal while construingthe provision of Section 132 which contains the expression “shall be presented within (30) thirtydays” stated instructively as follows:“When used relative to time, the word “within” has been defined variously as meaning anytime, before; at or before; at the end of; before the expiration of; not beyond; not exceeding;and not later than. See Black’s Law Dictionary, 6th Edition. In other words, an election petitionmust be presented any time before the expiration of 30 days, or more concisely put, not laterthan 30 days from the date the result of the election is declared.”In Ikharaiale V. Okoh (2009)12 N.W.L.R (pt.1154)1 at 37 paragraphs C-E, the Court of Appealstated what the import of the word “from” connotes while construing the provision of Section 141 ofthe Electoral Act 2006 as follows:“Based on the above and the essence of time in the disposal of electoral matters, I have cometo the conclusion that the use of the word “from” in Section 141 of the Electoral Act, 2006means from the day and includes part thereof, the day the result of the election was declared.The 30 days of period stipulated in Section 141 of the Electoral Act started from 21st of April,2007 on which the result was declared without prejudice to the time the result was actuallydeclared in so far as it was declared within the 24 hours of the day in question. In the contextof Section 141 of the Electoral Act, 2006 the word “within” complements the purport of theword “from” in the said section of the Act. The word “within” means that an election petitionarising from the election to the Esan Central Federal Constituency must be presented anytime between the 21st day of April, 2007 and 20th day of May, 2007, 30 days from 21st April, 2007on which the result was declared and inclusive of both dates.”The above decisions are instructive with respect to the import of the words “from” and “within”which also appear in paragraph 16(1) of the First Schedule to the Electoral Act. By parity ofreasoning, we are in no doubt that the use of the words “within 5 days from the service of theRespondents reply” must mean that the 9th October, 2014 when the Respondents’ replies wereserved on the Petitioners is clearly meant to be included in the computation of the 5 days periodwithin which the Petitioners are expected to file their replies to the Respondents’ replies.In Ikoro V. Izunaso (2008)LPELR-43-2(CA) at Pages 25-26, the Court of Appeal interpreted a

similar provision as paragraph 16(1) above and held thus:“What is to be noted here is that everywhere a Respondent’s reply was filed within the timeprovided in paragraphs 10(2) and 12(1), until it was served on and received by the Petitioners,the 5 days would not start to run for the filing of the Petitioners’ Reply. Time can and wouldonly start to run from the date of receipt of the Respondents’ Reply by the Petitioner asclearly stated in the paragraph. From the above provisions of all the paragraphs, whichappear to be mandatory by the constant, consistent and persistent use of the word “shall” inall of them; pleadings would come to an end and deem closed after 5 days of the receipt ofthe Respondents’ reply by the Petitioner whether or not the Petitioner’s reply was filed. BeingMandatory, the paragraphs do not contemplate any non-compliance or breach of theirprovisions and unless otherwise ordered by the lower Tribunal the consequences of suchnon-compliance or breach thereof may be serious and fatal to the case of the party in breach.”Now by simple calculation of time by days, the five (5) days “within” which the Petitioners had fromreceipt of Respondents’ replies to file their replies commenced on 9th October, 2014 and ended on13th October, 2014.Now this 13th October, 2014 clearly fell on a Monday and this leads to the interesting issue raised byPetitioners which is whether in calculating the 5 days within which the replies ought to be filed,Sunday which in the extant case fell within this 5 days period ought to be inclusive or excluded in thecomputation of days.The petitioners contend that the 13th October, 2014 being a Sunday ought to be excluded becausethere is a vacuum in the provisions of the Electoral Act (2010) as amended with respect tocomputation of time within which Petitioners have to file their replies to the Respondents’ replies thusnecessitating the need to import or apply the provisions of the Federal High Court (Civil ProcedureRules) 2009 and the Interpretation Act, Cap 123 LFN 2004.For the Respondents, the recourse to these external aids are inapplicable to the clear provisions oncomputation of time for filing of the replies in the extant case.In resolving this issue, we must state that there are indeed a few decisions of the Court of Appealwhere recourse was had to these so called external aids with respect to computation of time. It ishowever equally important to state that even in those few decisions, the court still made it clear andthis appears to us consistent with the tenor of all other decisions by the same court and the Apexcourt that recourse to these external aids cannot be availing where there is indeed a clear contraryintention in the enactment been construed. See Ajayi V. Owolabi (supra). We shall now refer tosome of the decisions of the Court of Appeal on this issue.In Ikharaiale V. Okoh (2009)12 N.W.L.R (pt.1145)1 at 34, the Court of Appeal in considering theapplication of any extraneous aid to the interpretation of time threshold limitation provisions instructivelystated as follows:“The provision of the Interpretation Act does not necessarily apply in all cases of constructionof Acts of the National Assembly or other enactments. Its application is subject to twolimitations one in-built in the Act itself and the other based on case law. The self-restraint inthe application of the Act, including Section 15(2) (a) is contained in Section 1 thereof whichstates that the Act is not applicable…in so far as the contrary intention appears in this Act orthe enactment in question.”In Ajayi V. Owolabi (supra) the Court of Appeal referred to the dictum of Nweze J.C.A in AdaramolaV. Aribisala (2009)LPELR-8515 (CA) on the application of these external aids which we find instructiveas follows:“My noble Lord, Nweze, JCA, in his very comprehensive exposition of the law in the veryrecent decision of this Court in Adaramola V. Aribisala (supra), succinctly adduced at leastfive reasons why Section 141 is self-sufficient in determining the question of computation oftime. They are:1. By paragraph 50 of the Election Act, the invocation of the Federal High Court rules is

made subject to the express provisions of the Act itself. Thus it is the provision of theAct on limitation that will be taken into account.

2. The provision of Section 141 of the Electoral Act is clear and unambiguous, thereforeexterminating the need of any external or interpretative aids. See AG Ondo State V. AGEkiti State (2001)10 SCNJ 117.

3. Whereas the provision of the Federal High Court (Civil Procedure) Rules is a generalprovision on time limitation, Section 141 is a specific provision on the time forpresenting an election petition. Therefore, the latin maxim general ibus specialiaderogant, (special provisions derogate from general provisions), applies to obviatethe need for recourse to the said rules. See Kraus Thompson Organization V. NIPPS(2004)17 N.W.L.R (pt.901)44 at 65 and Schroder V. Major (1989)2 SCNJ 210.

4. The provisions of the rules are inconsistent with the requirement of the Electoral Act.For whereas the rule “excludes the day or the date of the happening of the event,”Section 141 stipulates that an election petition “shall be presented within thirty 30days from the date the result of the election is declared.” In the face of thisinconsistency, the applicable enactment should be the provisions of the Act. seeYusuf . Obasanjo (2003)50 W.R.N 1 at 20 per Tobi, JSC.

5. Order XII Rule 1 of the Federal High Court rules is a contingent prescription whoserelevance in the computation of time for filing election petitions must be viewed fromthe prism of the dynamics that dictated the elevation of election petitions to sui-generisproceedings. In other words, as Acholonu, JCA (as he then was), noted in Balogun V.Odumosu (1999)2 NWLR (pt. 592)590 at 597, the provision was meant to do away withdelay and waste of time and endeavours to restrict the time meant for the doing of aparticular act within a time-frame.”

Similarly in Dr (Sir) Uche Ezeliora & Anor V. Tony One Week Muanagor &Ors (2011)LPELR-9208(CA), the Court of Appeal was unequivocal on the position that the Federal High Court Rulesand indeed any other interpretative aid is inapplicable to the clear provision of paragraph 16(1) ofthe First Schedule which is the extant provision being considered in this case. We shall return tothis case later on.Also in David Umaru V. Aliyu (2009)LPELR-5052(CA) the full court of the Court of Appeal whileconstruing the import of Section 141 of the Act held that the section is plain, precise and unambiguous,and must therefore be construed accordingly without the need to resort to the Interpretation Act orthe Civil Procedure Rules in the interpretation of the section.However in the case of Edozie O. Aroh V. Odedo & Ors (2011)LPELR 9202 (CA), the Court ofAppeal noted the decision particularly the dictum of Nweze J.C.A in Adaramola V. Aribisala (Supra)but relying on Adefemi V. Abegunde (supra) was clear in its position that the Interpretation Actwas applicable to time computation for the filing of an election petition under the 2010 Electoral Actparticularly when the last day of the period for filing of an election petition fell on a Sunday or publicholiday, then the period will be taken as continuing till the next day following which is not a publicholiday. The court held thus:“…I must therefore emphasize here that the provisions of the Interpretation Act applies to allstatutes and enactments except a contrary intention is expressly shown in such enactmentsor in the Interpretation Act itself. There is no such exclusionary provision in the legislationsunder consideration in this case…”In this case, the Court of Appeal specifically excluded Sunday which happened to be the last day forthe filing of a petition in that case in its computation of time and in arriving at its decision that thepetition in that case was properly filed.Now in Adefemi V. Abegunde (2004)15 N.W.L.R (pt.895)1 relied on by the Court of Appeal in ArohV. Odedo (supra), the issue arose as to the applicability of Section 15(4) and (5) of the InterpretationAct to the computation of time for filing briefs in an election matter. The court of Appeal per OnoghenJ.C.A (as he then was) held that the Interpretation Act was applicable in the computation of time.His respected Lordship held at Page 21 as follows:

“I have gone through the Electoral Act 2002 and the First Schedule thereto and the PracticeDirection No.2 of 2003 that was made there under and have seen no provision whatsoeverwhich stipulates that in Interpreting the provisions of the said Act or rules made there under,the provisions of the Interpretation Act shall not apply. I am of the firm view that only a clearprovisions to that effect will render the Interpretation Act, particularly Section 15(4) and (5)thereof in applicable.”Similarly in Etuk V. Ikon & Ors (2011)LPELR-4045 (CA) the Court of Appeal while construing theimport of paragraph 16(1) relied on these external aids to interpretation in specifically excluding thedate of service of a reply in its computation of time. The court held as follows:“The tribunal found that 1st Respondents reply was served on the Petitioner on 29th June,2011. Computation will commence from 30th June, 2011 and expire on 4th July, 2011. ThePetitioner filed a Reply to the 1st Respondents reply on 4th July, 2011. I hold that the Petitionersreply was filed within time.”As we have already alluded too, even where the Court of Appeal resorted to these external aids, theconsensus of judicial opinion is that it must be in situations where a contrary intention cannot bedeciphered from the enactment.We have here carefully read the provisions of the Electoral Act and we note that paragraph 54 ofthe First Schedule of the Act which provides for the application of the Rules of Court commenceswith the phrase “subject to the express provisions of the Act…”In law, whenever the expression“subject to” is used at the commencement of a statute, it is an expression of limitation. It impliesthat what the section or subsection is subject to shall govern, control and prevail over what followsin that section or subsection. See Odjegba & Ors V. Odjegba (2004)2 N.W.L.R (pt.858)566 at582; Alh. Muhammed D. Yusuf V. Obasanjo (2003)4 N.W.L.R (pt.847)554. What this simplymeans is that the provision of Paragraph 54 which is the subject section here is subordinate to thesection empowered by reference thereto and which is intended not to be diminished by the subjectsection. There is therefore clearly not much to urge with respect to applying the ordinary Rules ofCourt to clear any unambiguous provisions of the Electoral Act under consideration.The Supreme court in its ruling in Prince Abubakar Audu V. Captain Idris Wada &Ors SC 332/2012 delivered on 10th September, 2012 held as follows:“It is sufficient to re-iterate that election matters are sui-generis by nature and hence thereason for the special enactment of set of laws regulating its procedure thereto. To urge thecourt to apply the ordinary rules of court would therefore greatly undermine the specialnature of the Electoral Act and the other rules enacted for the purpose thereof.”Now with respect to the Interpretation Act, we are also not in doubt that its application is clearlyalso circumscribed or limited. Section 1 of the Act provides that the Act shall apply to the provisionsof any enactment except in so far as the contrary intention appears in this Act or the enactment inquestion. Where therefore the principal enactment is clear or where a clear contrary intention canbe evinced, the Interpretation Act may have no application.We have carefully read Paragraph 16(1) of the First Schedule and we are in no doubt that the useof the words “from” and “within” utilized by the framers of the said paragraph as we have shownearlier in this judgment is clear in its import with respect to when computation of 5 days commencesas can clearly be seen by the preponderance of decisions of our superior courts which we havereferred to on the issue. The narrow issue to address now is what happens when a Sunday or publicholiday falls within the sphere or confines of the 5 days period?.In the circumstances our duty is to construe the provision in line with the settled duty or obligation ofcourt in construing statutes. The law is settled that in the construction of Acts of parliament, the ruleof construction is that they should be construed according to the intent of the parliament whichpassed the Act. If the words of the statute are in themselves precise and unambiguous, then nomore can be necessary than to expound those words in their natural and ordinary sense. Thewords themselves, alone, do in such cases declare the intention of the law giver. See Shell PetroleumDevelopment Company (Nig) Ltd V. F.B.I.R (1996)8 N.W.L.R (pt.466)256 at 286. Indeed in AGOndo State V. A.G. Ekiti State (2001)17 N.W.L.R (pt.743) 706, the Supreme Court stated asfollows:“ It is certainly a cardinal principle of interpretation that where in their ordinary meaning, theprovisions of an enactment are clear and unambiguous, effect must be given to them withoutresorting to any aid, internal or external. It is the duty of the court to interprete the words ofthe law makers as used.”Guided by the above, we have again carefully read paragraph 16(1) which clearly states that thePetitioner has within 5 days from the receipt of respondent’s reply to file his reply and also paragraph16(2) which provides in mandatory terms that the time limited by sub-paragraph (1) of the paragraphshall not be extended and here we consider our primary duty is to give effect to the words as used.Paragraph 16(1) and (2) appear to us plain and clear and admits of no ambiguity and must thereforebe given its ordinary, natural and grammatical meaning. We had earlier dealt with the import of“within” and “from” used in paragraph 16(1) and we held that computation of time to file petitioners’replies is inclusive of the day of service of Respondents’ replies which is 9th October, 2014.By simple calculation, the 5 days period within which to file the Petitioners’ reply from 9th October,2014 if given its literal connotation will end on Monday, the 13th October, 2014. The intention of thelegislature by the use of the word “shall” in the provision appears to us to emphasize the clarity orcomprehensiveness of the paragraph with respect to the 5 days and no more. Paragraph 16(2)appear to further accentuate this position when it states in mandatory terms that the time limited“shall” not be extended. There is no clear contrary intention by the legislature as to excludeSunday in the computation of days and we cannot lessen the threshold or be seen to import ourown words to defeat the plain meaning of the enactment. This appears to us to be based on thepeculiar characteristic nature and uniqueness of election petition which is sui-generis and in a classof its own and therefore not susceptible to application of the usual rules applicable to civil matters incourt.In David Umaru V. Aliyu (supra) the Court of Appeal held instructively on the special and differentnature of election petition as follows:“The jurisdiction of an election tribunal to deal with election petitions is of a very specialnature different from that in ordinary civil cases. The procedure is largely governed by a lawspecifically made to regulate the proceedings. That is why the nature of election petition isunique or sui-generis and that is why any interpretation that is unique to itself is preferreddistinct from the general principles of law relied upon by the learned senior counsel in theinterpretation of Section 141 of the Electoral Act… It is because of its uniqueness or sui-generis nature that any slightest default in complying with a procedural step which otherwisecould either be cured or waived in ordinary civil proceedings could result in fatalconsequences to the petition. It is therefore not a function of the court to sympathize with aparty in the interpretation of a statute merely because the language of the statute is harsh orwill cause hardship… Once the meaning is clear, the courts are to give effect to it. Thecourts are not to defeat the plain meaning of an enactment by an introduction of their ownwords into the enactment.”In the light of the above authorities on the principles of interpretation of statutes, we hold the viewthat the words used in paragraph 16(1) and (2) are clear and unambiguous and as such must begiven their literal and ordinary meaning, this being an election matter which is sui-generis withoutrecourse to the Interpretation Act or the Federal High Court (Civil Procedure) Rules.We find support for this in the decision of the Court of Appeal in Dr (Sir) Uche Ezeliora & Anor V.Tony One Week Muanagor (supra) where the Court of Appeal clearly dealt with the provision ofparagraph 16(1) of the First Schedule to the Electoral Act and the law Lords held as follows:“The Appellants have contended in their Brief of Argument to the effect that since the ElectoralAct did not provide for how the computation of time for the filing of their Petitioners’ Replyto the Reply of the first set of Respondents should be done, recourse should be made toOrder 48(1) of the Federal High Court (Civil Procedure) Rules. I do not think that anythingcould be farther from the truth than the contention of the Appellants. This is against thebackdrop of the interpretation of the words “within” and “from” as used in Paragraph 16(1)

of the First Schedule by this Court on numerous occasions as can be seen from the caseshereinbefore cited. All the cases in my considered view eloquently go to show that when thewords “within” and “from” are used in the provision of a statute in relation to an act that hasbeen performed, the court in giving a literal and ordinary meaning to the provision mustcompute the time limited for the doing of the act inclusive of the date that the act was done.In other words, the words “within” and “from” by their respective ordinary meanings haveunequivocally indicated the point in time computation of time should start and end. All thatI am saying is that the use of the words “within” and “from” in the provision of Paragraph16(1) of the First Schedule have unequivocally fixed the computation of the five days theAppellants had to file their Petitioners’ Reply to the Reply of the first set of Respondents, tocommence on the very date the Appellants were served with the Reply of the said 1st set ofRespondents. Nothing in my considered view could be clearer. Therefore recourse to theFederal High Court (Civil Procedure) Rules as propounded by the Appellants for the purposeof computing the time within which they were to file their Petitioners’ Reply, does not ariseand is definitely uncalled for in the face of the clear and unambiguous provision of Paragraph16(1) of the First Schedule. In other words the provision of Paragraph 16(1) of the FirstSchedule not being in any manner unclear or ambiguous definitely required no resort to theFederal High Court (Civil Procedure) Rules as the Appellants have contended, or indeed anyother interpretative aid.”Giving clarity or insight to how this computation of days should be done, the dicta of Lokulo-SodipeJ.C.A in the said decision is apposite as follows:“It is not in dispute that the Reply of the 1st set of Respondents to the petition was served onthe Appellants on 25th August, 2011. It is also not in dispute that the Appellants’ Reply to theReply of the 1st set of Respondents was filed on 30th July, 2011. Having regard to the settledinterpretation to be accorded the words “within” and “from” as used in the Paragraph 16(1)of the First Schedule that clothes the Appellant with the right to file the Petitioners’ Reply inquestion, they (i.e Appellants) had five days inclusive of the date of the service of the Replyof the 1st set of Respondents on them within which to file their Petitioners’ Reply. By simplyarithmetic it is therefore obvious that the latest time they had to file their Petitioners’ Replylapsed on 29th July, 2011 as found by the Tribunal. The Tribunal in my view was very correctwhen it did not apply the Order 48(1) of the Federal High Court (Civil Procedure) Rules incomputing the time within which the Appellants should have filed their Petitioners’ Reply inthe face of the service upon them of the Reply of the 1st set of Respondents on 25th July,2011.”We also find added support in the decision of the Supreme Court in the case of A.C.N V. REARADM.MURTALA NYAKO in Suit No. SC.409/2012 delivered on 5th November 2012 where the samearguments canvassed before us with respect to exclusion of a Sunday or public holiday in thecomputation of 5 days to file a brief of argument and the application of Section 15(4) and (5) of theInterpretation Act was addressed and settled. The Court stated thus:“…It is the contention of learned senior counsel for applicants that applicants who wereserved with appellants brief on 12th October,2012 filed their respondent brief on 17th October2012 and that the filing was within the 5 days allowed to file the respondents brief by theprovisions of paragraph 6 of the Practice Direction 2011 and Section 15(4) and (5) of theInterpretation Act which provide that where time to do anything is stated to be less than Sixdays, the public holidays which include Sunday shall not be included in the counting; thatsince the five days allowed respondent to file brief included a Sunday, the filing on 17th October2012 was within time and urged the court to so hold….It should be stated from the onset thatelection matters are suis generis and as such the rules of interpretation as contained in theinterpretation Act may not apply in election related matters. In the instant case paragraph 6 ofthe Practice Direction provides as follows:“The respondent shall file in the court his own brief of argument within 5 days of service ofappellants brief”I hold the considered view that the above provision is mandatory particularly as the word“shall” is used therein. This is in line with the earlier decision of this court in Audu V. Wada,supra which held that time provided in the Practice Direction cannot be extended. To me thedecision in that case covers the facts of this case irrespective of the fact that Audu’s caseinvolved an originating process which is not the case here. What matters is the principle thatthe time so fixed in that practice Direction to do whatever act cannot be extended as thiscourt has no discretion to exercise in the matter. In conclusion, I hold that the 4th and 5th

respondents brief filed on 17th October 2012 was filed out of time and that by the provisionsof paragraph 6 in the practice Direction 2011 this Court has no discretion to exercise in favourof applicants…”Guided by the above and the earlier authorities referred to, we hold that since it is common groundthat the replies of the Respondents to the petition was served on 9th October, 2014, while the repliesof Petitioners to the replies of Respondents were filed on 14th October, 2014, by simple arithmetic,the time Petitioners had to file their Petitioners’ replies clearly had lapsed by Monday 13th October,2014.Before finally concluding on this issue, it is important to state that we have carefully read the decisionin Etuk V. Ikon (supra) relied on by the Petitioners and the dicta of TUR J.C.A where his Lordshipexcluded the date of service when computing time within which a Petitioner was to file his replywithin the contemplation of paragraph 16(1). This decision with profound respect appear to conflictwith several decisions of the Court of Appeal we have referred to concerning the computation of timeparticularly where the words “within” and “from” are used in an enactment including the later caseof Ezeliora V. Tony One Week (supra).The Apex Court in ANPP V. Goni (2012)7 N.W.L.R (pt.1298)147 at 190 while construing the provisionof Section 285(6) of the Constitution which contains the limitation expression “from the date offiling of the petition” held that the mode of computation in such circumstances must include thedate of the event. The court held thus:“The operative words are “from the date of filing of the petition.” By these words employed inSection 285(6) of the Constitution, an Election Petition Tribunal has 180 days to hear anddeliver its judgment and the period of 180 days is calculated from the date the petition is filedin court.”See also Ugba V. Suswan (2013)4 N.W.L.R (pt.1345)427 at 457.In the circumstances and at the risk of sounding prolix, we hold that the Petitioners clearly had up to13th October, 2014 to file their replies to Respondents’ replies in the face of the clear service uponthem on 9th October, 2014. Having filed their replies on 14th October, 2014, the Petitioners clearly fellfoul of paragraph 16(1) and (2). See Nwoye V. Ikechukwu (2011) LPELR-9195 (CA).The law is settled that where a statute lays down a procedure for doing anything, no other method isto be employed in doing the thing. In other words, where a statute or legislation provides for aparticular method of performing a duty regulated by statute, that method and no other must have tobe adopted. See Nwankwo V. Yaradua (2010)12 N.W.L.R (pt.1209)518.We consider it appropriate to refer here to the decision in Balogun V. Odumosu (1999)2 N.W.L.R(pt.592)590 where the Court of Appeal harped on the time imperative of election matters as follows:“The issue of time to complete filing of all processes relating to hearing and determination ofan election petition was uppermost in the mind of the legislature. The enactment stretchesitself further afield to do away with tardiness and waste of time and endeavours to constrictthe time of doing a particular act within a time framework. In other words, it is the intentionof the legislature that parties stick strictly to the time stated in the decree. The court will notaid anyone who decides to sleep only to wake up when it is too late.”We now take issue (2) relating to the question of whether the petitioners have not abandoned theirpetition having failed to apply for the issuance of notice of pre-hearing in Form TF007 within the timestipulated by law making the petition liable to being dismissed by the tribunal. We must also at theonset confess that we had considerable difficulties in arriving at what we consider to be the correct

import of the provisions of the 1st schedule with respect to the effect of failure to apply for theissuance of a pre-hearing notice in the light of the various decisions of our superior courts which weshall soon refer to cited by both contending parties to support their points on the issue. It is a matterthe tribunal gave utmost consideration and circumspection.In resolving this issue, we take our bearing from Paragraph 18(1) of the First Schedule to theElectoral Act, 2010 (as amended) which provides for when a party is to apply for pre-hearing session/notice as follows:“Within 7 days after the filing and service of the Petitioner’s Reply on the Respondent or 7days after the filing and service of the Respondent’s reply, as the case may be, the Petitionershall apply for the issuance of pre-hearing notice as in Form TF007".The word “or” appears in the above provision. In law, where the word “or” appears, it is a disjunctiveparticiple used to express an alternative or to give a choice among two or more things. See AbiaState University V. Anyaibe (1996)3 N.W.L.R (pt.439)646 at 661; S.B.N Ltd V. Starite Ind. OverseasCorp (2001)1 N.W.L.R (pt.693)194 at 211.The implication of the above is simply that a petitioner is duty bound to apply for the issuance of pre-hearing notice within 7 days after the filing and service of the Petitioners’ reply on the respondentsOR 7 days after the filing and service of the respondents’ reply as the case may be.From the above and at the risk of prolixity but for purposes of clarity, the Petitioners clearly have twodisjunctive availing options as to when to apply for the issuance of a pre-hearing notice as the casemay be; to wit:1. Within 7 days after the filing and service of the Petitioners’ reply on the Respondents OR,2. 7 days after the filing and service of the Respondents’ reply.

It appears to us that the former or first option would apply where a proper and or competent Petitioners’reply is filed and served as contemplated by the Act. This must be so in our considered opinionbecause there is no binding obligation on the Petitioner(s) to file a reply. Where one is properly filed,pleadings would then be deemed to have closed and then within 7 days after the filing and service ofthe Petitioners reply, the application for the issuance of the notice must be made.The second option is where there is no Petitioners’ reply, then pleadings would be deemed to haveclosed after the Respondents have filed and served the Respondents’ reply on the Petitioner.In this case having found that the Petitioners did not file their reply to the Respondents’ replies within5 days from the date of service, the implication is that there is no proper or competent reply with thelogical consequence that the first option under paragraph 18(1) is not available to the Petitioners.The legal effect of the above is that the second option covered by paragraph 18(1) is the availingand applicable option in the circumstances. Pleadings in this case will therefore be deemed to haveeffectively closed on the date of service of the Respondents’ replies on the Petitioners which is 9th

October, 2014.Now with respect to when computation of time is to begin, the dynamics changes because here theoperative words in paragraph 18(1) are “7 days after the filing and service.” The words “withinand “from” are absent here. The consensus of judicial opinion appear to be that where the word“after” is used by drafters in computation of time, the day of the happening of the event is excludedin computing time which in the extant case is “7 days after the service of the Respondents Reply.”In Chief Joshua C. Dariye V. P.D.P (2011)LPELR-9334 (CA) the Court of Appeal while construingthe provision of Section 285(5) of the 1999 Constitution in which a Petitioner is required to presenthis petition “within 21 days after the date of the declaration of the elections “stated as follows:“Further reference is made to the plain and grammatical meaning of the word “After” in theOxford English Dictionary which describes the meaning of the word as “in the time followingan event or another period of time.” The plain and natural meaning of the word “After” inSection 285(5) of the 1999 Constitution (as amended) admits of no ambiguity. It simply meansthat the 21 days within which an election petition shall be filed shall begin to run after thedate of the declaration of the results of the election. It is obviously the manifest intention ofthe legislature to exclude the date of the declaration of the result in computing the 21 dayswithin which a person may present a petition by the use of the word “AFTER…”In line with the above, pleadings is deemed to have closed on 9th October, 2014 when the Respondentsserved their replies on petitioners. The 7 days Petitioners have to apply for issuance of Form TF007commenced on 10th October, 2014 and by simply calculation, the time ended on 16th October,2014.This duty to apply for the issuance of a pre-hearing notice is mandatory because by virtue of Paragraph18(4) of the First Schedule of the Act, where either of the Petitioner or respondent fails to bringsuch application, the tribunal shall dismiss the petition as abandoned and no application for extensionof time to take that step shall be filed or entertained.In this case and on the record, the Petitioners applied for issuance of Form TF007 on 20th October,2014 which clearly is outside the 7 days provided for by law. The Respondents have here by motionpursuant to Paragraph 18(3) applied for the dismissal of the petition. The question now is what isthe effect of such failure to apply for the issuance of the pre-hearing session notice in compliancewith the law? As stated earlier, this matter has agitated our minds but here to, we prefer to take ourbearing by relying on the authoritative pronouncements by our superior Courts on the issue. We startwith some of the authorities relied on by Applicants.In A.C.N V. Nomiye (2011)LPELR-3590 (CA)34, the Court of Appeal dealt with a situation where noapplication for the issuance of a pre-hearing notice was made at all as contemplated by the rules andspecifically considered the import of Paragraph 18 of the First Schedule to the Electoral Act,2010 (as amended) and held as follows:“The application for issuance of pre-hearing notice (in whatever form) must be made withinseven days after the filing and service of the Petitioner’s reply on the respondent or sevendays after the filing and service of the Respondent’s reply as the case may be. Failure tocomply within the time frame is fatal to the petition. Time cannot be extended and the Tribunalhas no option but to dismiss the petition as abandoned.Similarly in Nwoye V. Ikechukwu (2011)LPELR-9195(CA), the Court of Appeal pronounced on theeffect of failure of the Petitioner to apply for the issuance of the notice of pre-hearing session in thefollowing terms:“By the aforementioned provisions, a petitioner is mandatorily expected to apply for pre-hearing notice within seven days upon the settlement of pleadings. Upon the failure of thePetitioner to apply, the Respondent may apply for pre-hearing or the dismissal of the petition.See Paragraph 18(3) earlier reproduced above. The Court may also dismiss the petition as anabandoned petition, see Paragraph 18(4) above.”On the arguments relating to sacrificing of the substance of a case on the altar of technicalities, theCourt of Appeal in A.C.N V. Nwoye (supra) stated that paragraph 18(1) is clear and unambiguousand that the provision cannot be jettisoned on the altar of adherence to substantial justice or unduetechnicalities. The court held as follows:“On the contention of the appellants that the Tribunal erred in law in refusing to apply order51 Rule 1 of the Federal High Court Rules and the decisions of the Supreme Court on theneed not to sacrifice substantial justice on the altar of undue technicalities, it is necessary topoint out that Paragraph 18 of the First Schedule is a typical example of one of the features inthe law governing election petitions that make them sui-generis. Time is of the essence.While it is necessary that cases be determined on their merits, provisions in the ElectoralLaw which terminate cases in limine are there for the purpose of keeping litigants and theirlawyers alert and to avoid unnecessary delays. The tribunal committed no error of law inholding that it is only where there is a lacuna in the rules that the courts may fall back on theFederal High Court Civil Procedure Rules. There is no such lacuna in Paragraph 18 of theFirst Schedule. On the contrary its provisions are completely exhaustive and covered thefield adequately obviating the need to fall back on the Federal High Court Rules.”We have also read with care the decision of the Apex Court in Okereke V. Yaradua (2008) 12N.W.L.R (pt 1100) 95 where the Supreme Court dealt with amongst others the competence or propriety

of taking motions outside of pre-hearing session as was undertaken by the Court of Appeal and theancillary issue of the effect of failure to apply for pre hearing and specifically construed the provisionof paragraph3(1) of the Practice Direction which is in pari materia with paragraph 18(1) of the 1st

schedule under consideration. The court held that the Court of Appeal erred in taking the applicationsoutside of the pre hearing session and that the failure to comply with the provision of paragraph 3(1)was fatal and that the tribunal is empowered to treat the petition as abandoned and to dismiss same.The Court also emphasized on the fundamental nature of pre hearing sessions and the need tocomply strictly with the provisions of the law on it. We perhaps may at this point refer to theirpronouncements. The respected Lordship Hon Justice I.T Muhammad J.S.C who wrote the leadjudgment stated as follows:“…Secondly, sub-paragraph 4 of paragraph 3 as quoted above makes it mandatory that whereneither the petitioner nor Respondent files an application for a pre hearing session, thetribunal or court is under a duty to dismiss the petition as abandoned and no application forextension of time to take that step shall be filed or entertained. Now, although the stipulationunder sub paragraph 4 of paragraph 3 of the practice Direction appears to me harsh on thepetitioner by making an order of dismissal of the petition which forecloses any chance forhim to represent the petition, it still had to be complied with by the tribunal or Court as suchsteps are a condition precedent to the hearing of any matter in relation to the petition pendingbefore the tribunal or Court. Non compliance thereof will strip the tribunal or court withjurisdiction as one of the factors which confer jurisdiction on court is not complied with. SeeMadukolu V.Nkemdilim (1962) 1 All N.L.R 589…”His Lordship Hon Justice OnnoghenJ.S.C also added as follows:“…However, paragraph 3(4) supra, gives power to the lower Court where the petitioner andrespondent fail to bring an application for pre hearing session as in the instant case , todismiss the petition as abandoned petition and that no application for extension of time totake that step i.e apply for pre hearing session shall be filed or entertained. That is the law ,though it may sound harsh. It should however be borne in mind that the provisions apply toelection matters in which time is of essence…” The clear effect of the above decisions is that where there is failure to apply for the issuance of a prehearing notice as contemplated by law, it would amount to an abandonment of the petition andmaking it liable to be dismissed.On the other side of the aisle, the Petitioners/Respondents have referred us to recent decisions ofthe Supreme Court in ABUBAKAR V.NASAMU (2012) 17 N.W.L.R (Pt.1330) 523 and SAEED V.YAKOWA (2013) ALL F.W.L.R (Pt. 692)1650 at 1686 and contended that these decisions havecompletely altered the prevailing view with respect to the interpretation of the relevant provision ofparagraph 18 of the 1st Schedule to the Electoral Act.Now we must warn ourselves as we examine the above decisions, to tread carefully bearing in mindthat these are all decisions of our superior courts including the Apex Court which is binding exceptsame can be distinguished. The principle of stare decisis is sacrosanct. This, we are acutely awareof. We are equally aware that any pronouncement coming from the Apex Court even if not directly inissue cannot be treated perfunctorily by the lower Court as these pronouncement sometimes givesan insight or indication as to how such matters may be treated where the issue arise before theCourt.In Abubakar V. Nasamu(supra), the main issue that arose had to do with the proper mode of bringingabout a pre hearing session within the confines of paragraph 18(1) of the 1st schedule. The questionwas whether it has to be by way of a motion or whether a letter as utilized in the case would suffice.Strictly speaking therefore, the facts of the extant petition can be distinguished from that of AbubakarV. Nasamu in that the issue here is not that of mode utilized but that there was no application for theissuance within the time provided for by the 1st Schedule.In determining the appeal, the Apex Court however construed the provisions of paragraphs 18(1),(2), (3), (4), 47(1) and (2) and also 53(1) of the 1st Schedule to the Electoral Act which are in issuein the extant petition and we cannot but be guided by the principles enunciated and as can clearly bediscerned by the reasoning in their pronouncements. Yes facts of cases may differ, but the principleappears to us to be the most critical of all factors. On the fundamental question of whether failure toeven comply with paragraph 18(1) of the 1st schedule affects the jurisdiction of the court or tribunalto entertain the petition, His Lordship Hon Justice Tabai J.S.C who wrote the lead judgment instructivelyheld as follows“…Before I conclude, I would like to comment briefly on a submission of learned senior counsel forthe 1st – 3rd Respondents on jurisdiction. At paragraph 5.5 of the 1st – 3rd Respondents’ brief, hesubmitted:-“It is trite that where the law lays down a procedure for doing a thing, non-compliance with thatprocedure robs the Court of jurisdiction. It is submitted that the failure of 1st , 2nd and 3rd Appellants toadhere to the provisions of paragraph 18(1) of the First Schedule to the Electoral Act 2010 (asamended) is fundamental and fatal to the petition; it is not a mere irregularity which Court can condone.”I have already held that there was no non-compliance with the provisions of paragraph 18(1) of theFirst Schedule to the Electoral Act. Assuming, for the purpose of argument, that there was such non-compliance, would it affect the jurisdiction of the Court to entertain the petition? I would answer thisquestion in the negative. Jurisdiction is a creation of the Constitution and statute, and the settledprinciple of law is that it is the claim or petition that determines its competence. The claim or petitionmust come within the ambit of the law that has conferred the jurisdiction. In this case, there is nochallenge of the competence of the petition (sic) to entertain the petition. The challenge here is non-compliance with paragraph 18(1) of the First Schedule to the Electoral Act.

Where a Plaintiff in procedural steps necessary for the successful prosecution of the claim orpetition, his act or omission constituting such failure or default does not affect the jurisdiction of theCourt. It only constitutes a failure to prosecute the claim and which failure attracts a dismissal. Inview of the foregoing, I hold, with respect that the argument of learned senior counsel for the 1st – 3rd

Respondents is untenable…”

In his supporting decision Hon Justice Chukwuma – Eneh J.S.C stated unequivocally that failure tocomply with the provision of paragraph 18(1) will not amount to a fundamental defect leading to adismissal of the petition in the light of the saving provision of paragraph 53(1) of the 1st schedule.His Lordship stated thus:“…I also hold that not having come by paragraph 18(1) will not amount to fundamental defect leadingto the dismissal of petitions as this one. This cannot be so as gathered from the intendment of thelawmaker as has emerged from construing the provisions of paragraph 53(1) which shows that suchirregularity is curable. It reads:“(1) Non-compliance with any of the provisions of this Schedule, or with a rule of Practice for the timebeing operative, except otherwise stated or implied, shall not render any proceeding void, unless theTribunal or Court so directs, but the proceeding may be set aside wholly or in part as irregular oramended, or otherwise dealt with in such a manner and on such terms as the Tribunal or Court maydeem fit and just.”The foregoing provisions of paragraph 53(1) are plain and clear, and without any ambiguity andhave to be applied literarily. I support the view that paragraph 53(1) has introduced a caveat to thiscase even though an election matter. One should not follow in this case the Schedule blindly eventhough it will bring the case to an end where justice has not been done. See Abubakar v. YarAdua(2008) 4 NWLR (Pt.1078) 465 at 511 paragraphs B-E. Furthermore, it contemplates that Rules ofProcedure are not by themselves the end but the means of achieving the end. I must say eventhough the provisions of the First Schedule to the Electoral Act, 2010 are now of the status of statutoryprovisions, they are still, in the main, concerned with procedural matters aimed at smoothening outthe process of determining election matters and not to hinder or impede their due administration.They have not by that baptism, so to speak, ceased to be tools or handmaids for the Courts to use inthe expeditious hearing and doing justice in election matters. The Courts, I dare say, should nottimorously succumb to technical objections as the instant one with respect that are fanciful and

lacking in focus and even then deliberately designed to stultify the processes of moving the casesforward in the interest of justice. A simple process as contemplated as per paragraph 18(1) whichhas been made to facilitate very expeditious hearing of election matters has now been turned into aprocess for a quick kill of election matters albeit with respect by unwholesome practices and so runout of time the lives of the election petitions as they are time-limited by the Act, most of the time tothe prejudice of the Petitioners; clearly in a manner not in consonance with the object of the Act norwithin the intendment of the lawmaker and thus deny doing substantial justice, particularly so whereit matters most, that is to say, in dealing with election petition matters. The polity’s confidence in oursystem of adjudication is thereby greatly eroded to our chagrin. And so, doing substantial justiceshall always be the watch word of our Courts in election matters…”

Now in the case of Saeed V. Yakowa (supra) the objection relating to failure to comply with theprovisions of paragraph 18(1) was raised for the first time at the Court of Appeal by the Respondents.This was clearly after it had participated in the pre hearing and filed its own issues for determination.In this case the challenge was made before the Respondents took any steps. We also agree herethat while the facts are distinguishable, the principle with respect to the correct import and applicationof the 1st schedule is one that cannot be ignored by the tribunal. In this respect, we shall quote in-extenso the holding of the Court per Tabai J.S.C on the correct approach by tribunals where thereis failure to comply with the mandatory provision of paragraph 18(1) of the schedule as follows:“……This issue was raised at the Court below and in its judgment at pages 2853 – 2854 the Courtrelying on Onyedebelu v. Nwaneri (2005) 1 LRECN 207 at 212 found as follows:“It is crystal clear that the failure of the Appellants in this appeal to comply with the mandatory andobligatory provisions of paragraph 18 sub-paragraph (I) of the First Schedule to the Electoral Act,2010 (as amended) which is a condition precedent to the entertainment of or adjudication of the saidpetition ought to have rendered the said determination of the petition by the Tribunal invalid. Thetrial Tribunal should have dismissed the petition pursuant to paragraph 18(4) of the First Schedule tothe Electoral Act, 2010 (as amended).”I wish to state with respect that, the above approach of the Court below is far too restrictive andtechnical. The First Schedule to the 2010 Electoral Act (as amended) represents the Rules ofprocedure for election petitions. And as Rules of Court they do not confer jurisdiction: Ogunremi &Ors v. Dada & Ors (1962) NSCC 419 at 422, reported as Dada v. Ogunremi (1962) 2 SCNLR 417. Itfollows therefore that a Petitioner’s breach of any of the provisions of the 1st Schedule does notaffect the jurisdiction of the Tribunal or Court to entertain or adjudicate on the petition. Rather sucha breach, if substantial, can only amount to the Petitioner’s failure to prosecute the petition with theconsequence of its dismissal. It is also clear from the reproduced portion of the judgment of theCourt below that it invoked the provisions of paragraph 18(I) of the First Schedule to the ElectoralAct without taking into cognizance the saving provisions of paragraph 53(1)(2) and (4) of the sameschedule. Paragraph 53(1)(2) and (4) provide:“53 (1) Non-compliance with any of the provisions of this schedule, or with a rule of practice forthe time being operative, except otherwise stated or implied, shall not render any proceeding void,unless the Tribunal or Court so directs, but the proceeding may be set aside wholly or in part asirregular, or amended, or otherwise dealt with in such a manner and on such terms as the Tribunalor Court may deem fit and just.(2) An application to set aside an election petition or a proceeding resulting there from forirregularity or for being a nullity, shall not be allowed unless within a reasonable time and when theparty making the application has not taken any fresh step in the proceedings after knowledge of thedefect.(4) An election petition shall not be defeated by an objection as to form if it is possible at the timethe objection is raised to remedy the defect either by way of amendment or as may be directed bythe Tribunal or Court.”

Rules of procedure are made to enhance and facilitate the due administration of justice and aretherefore meant to be obeyed: G.M.O. Nworah& Sons Co. Ltd v. AfamAkputa (2010) All FWLR(Pt.524) 86, (2010) 9 NWLR (Pt.1200) 443 at 473; Anyah v. A.N.N. Ltd (1992) 6 NWLR (Pt.247) 319;Ajayi v. Omorogbe (1993) 6 NWLR (Pt.301) 512.The current and prevailing principle in the administration of justice however is that where in thebeginning or in the course of the proceedings, a party commits an omission or mistake in the laiddown practice and procedure, it can be regarded as an irregularity which the Tribunal or Court canand should rectify or even ignore so long as it is satisfied that the omission or mistake occasions oris incapable of occasioning any injustice to the other party. This is the principle deliberately engraftedby the Legislature into paragraph 53(1),(2) and (4) of the First Schedule to the Electoral Act, 2010(as amended). I wish to emphasize again that the approach of the Court of Appeal was too restrictiveand technical, capable of undermining the very ends of justice for which the rules of procedure in theschedule were made. In the circumstances of this case, the Court below had a duty to read theprovisions of the First Schedule to the Electoral Act, 2010 (as amended) holistically, and construesame widely and generously to give effect to its manifest intention. And the manifest intention of theprovisions of the First Schedule is for the Tribunal or Court to do substantial justice and not technicaljustice…”

We shall be guided by the above clear pronouncements.In our considered opinion, reading carefully these recent decisions by the Apex Court, there appearsto be a decisive shift in the dynamics relating to the import and correct application of the provision ofParagraph 18(1) of the 1st schedule. The current and purposive approach would be that in invokingparagraph 18, the tribunal must do so liberally taking into cognizance the active saving provisionsof paragraph 53 which is part and parcel of the Act so that the manifest intention of the provisions ofthe 1st schedule which is to allow the tribunal to do substantial justice as opposed to technical justicewill be achieved. We have again read the earlier authorities which adopted the rather strict applicationof paragraph 18(1) and we note respectfully that in none of those cases was the effect of the savingprovision of paragraph 53 on paragraph 18(1) considered. It is our hope that because of the ratherfluid position on the issue at the moment, our superior Courts will make a definitive pronouncementon the issue in due course. In the mean time we wish to reiterate the very delicate nature of election matters and the sometimesuncontained passion it generates among members of the public. The barometer as far as the publicis concerned is whether justice has been done to the parties and whatever the imperfections in thesystem, there is no better way to achieve this noble goal than to allow parties to fully ventilate theirgrievances in court without undue regard to technicalities or procedural rules. See AbubakarV.Nasamu (supra); Abubakar V.Yaradua(2008)4N.W.L.R (PT 1078)465 at 511In the extant petition, the narrow complaint is that of failure to apply within time as provided for byparagraph 18(1) of the 1st schedule. We accordingly prefer to err on the side of caution and relyingon the saving provisions of paragraph 53 allow the petition to be determined on its merits in theoverall interest of justice. The application to dismiss the petition accordingly fails. We shall now proceed to consider the substance of the petition and the issues arising there from.ISSUE 2:

Whether the Governorship election conducted in Osun State on 9th day of August 2014 wasvitiated by reasons of corrupt practices, irregularities and substantial non-compliance withthe provisions of the Electoral Act 2010 (as amended), the INEC Manual as well as theGuidelines for the conduct of Election.

The grounds for this petition had earlier been stated. The Local Government Areas affectedhave also been stated. In proof of this petition, the Petitioners called 43 out of the 615 listed witnessesin the petition, these include 2 expert witnesses. These witnesses are numbered PW1 – PW43. ThePetitioners have also placed before the Tribunal several documents. In defence, the Respondents

called witnesses and also placed documentary evidence before the Tribunal. The 1st Respondentcalled 19 witnesses but tendered no documents except those tendered through the Petitionerswitnesses under cross-examination. The witnesses of the 1st Respondent are numbered RW 1 –RW 19. The 2nd Respondent called 8 witnesses, numbered RW 20 – RW 27. The 3rd Respondentcalled no oral evidence but tendered from the bar 3 documents which are Exhibits 395, 396 and 397.Before going into the consideration of the alleged malpractices and irregularities in the individualpolling units and wards within the Local Government Areas under contention, we wish to deal withsome complaints that are common throughout the various polling units and wards under consideration.Such complaints include, though not limited to –(i) Non or improper accreditation.(ii) Non stamping of duplicate copies of forms EC 8A.(iii) Unregistered and ineligible people being allowed to vote.(iv) Multiple voting.(v) Intimidation, harassment and inducement of voters.

It is pertinent to state here, the general legal principle that in election petitions, as indeed in all civilcases the burden of proof lies on the party asserting and who would loose if no evidence were to becalled at all on either side. See the case of Awuse v. Odili (2005) All FWLR (Pt.261) 248. ThePetitioners therefore have the burden of proving these allegations.It is the contention of the Petitioners that in all the polling units in the various wards in the LocalGovernment Areas in issue, there was either no accreditation or improper accreditation of votersbefore the commencement of election. That this is in violation of the Electoral Act, 2010 (as amended)and the Manual for Election Officials 2014, made pursuant to the Electoral Act. Having alleged nonaccreditation or improper accreditation, the burden is on the Petitioners to proof their assertion. Wehave carefully gone through the various depositions of the Petitioners’ witnesses; none of them hasstated what the proper procedure for accreditation is. They have also not stated the procedureadopted by the 3rd Respondent which they allege is improper. All they allege is improper accreditation.Page 63 of the Manual for Election Officials, 2014 defines Accreditation as –“ The process of verifying the eligibility of a prospective voter before voting commences.”It is to be stated that this Manual is in evidence as Exhibit 186. The definition of accreditation isfurther stated in chapter 3 of the Manual as a –“— process of ascertaining that a voter’s name is in a register of voters in a particular polling unitwhere he/she registered for election, before voting commences on election day.”Simply put therefore accreditation is a process of ascertaining that an individual votes at a pollingunit in which he/she was registered. It follows that a registered voter does not have the right to walkinto any polling unit and insist on voting in that unit. To do so is an offence under the Electoral Act.

The Manual has stipulated the accreditation procedure. It provides that as the voter presents himself/herself, the Assistant Presiding Officer (APO) shall:i) Request for the voter’s card.ii) Examine the voter’s card to ascertain that the photo on the voter’s card is that of the voter

and that the polling unit details are correct for that polling unit.iii) Check the register of voters to confirm that the voter’s name, photo and Voter Identification

Number (VIN) as contained on the voter’s card is in the register of voters.iv) Check the cuticle of the voter’s left finger to ascertain that he/she has not been accredited

earlier in another polling unit.v) Tick to the left side of the name of the voter in the register of voters.vi) Apply indelible ink to the cuticle of the appropriate finger on the left hand.vii) Issue the voter with signed accreditation number tag with voter’s serial number in the register

written on the tag.viii) The Presiding Officer shall request accredited voter to remain within the polling zone for the

commencement of voting.

What procedure was adopted by the 3rd Respondent on the election day? As stated earlier none ofthe Petitioners’ witnesses in his evidence in chief stated the procedure adopted by the 3rd Respondenton that day. All they allege simply is improper accreditation. However in response to questionsunder cross-examination, they laid down the accreditation procedure adopted by the 3rd Respondenton the election day. Their respective evidence is that on arrival of officers of the 3rd Respondent atthe polling unit, they pasted the voters’ register for the unit on a wall and asked everybody to checkfor his/her name on the list and also note the serial number against his/her name. If an individualfinds his/her name on the displayed list and it gets to his/her turn to be accredited, the officer of the3rd Respondent would then demand and collect his/her voters card, cross check his/her name in thevoters’ register with them, if found, the name would be ticked and ink would be applied to the thumbof the individual, who would then be asked to come back at 12 noon when voting would commence.Respondents’ witnesses also confirm that this was the procedure of accreditation adopted by the 3rd

Respondent. Petitioners’ witnesses further confirm that everybody who came to vote went throughthis process.

Clearly, we do not see any substantial difference in the procedure adopted by the 3rd

Respondent and that provided in the Manual. The 3rd Respondent substantially complied withprovisions of the Manual. We do not therefore agree with Petitioners that there was no properaccreditation. As rightly submitted by the Respondents, all the certified true copies of the votersregisters tendered by the Petitioners show that they were appropriately ticked. Under cross-examination by the Petitioners and the Respondents, the witnesses who were shown the register ofvoters confirmed that their names were ticked. But even assuming for the purpose of argument thatthe procedure adopted by the 3rd Respondent is improper, the Petitioners have not shown that that“improper procedure” affected only those who came to vote for them. The evidence of their witnessesis that everybody went through the same procedure. We do not therefore see how, even if there wasimproper accreditation, it has adversely affected them or the outcome of the election.

Closely related to this issue is the assertion by the Petitioners that unaccredited people wereallowed to vote while those accredited were prevented from voting. They have however not adducedany evidence in proof of these assertions. Nobody came to this Tribunal to testify that he/she wasprevented or chased away by the Respondents or their agents from voting, having been accredited.The Petitioners did not mention a single individual who was allowed to vote without having beenaccredited. Even if the Petitioners were able to show that unaccredited people were allowed to vote,they still have the burden of proving that such persons voted for the 1st and 2nd Respondents. Theyalso have the further burden of proving that all the accredited voters who were prevented fromvoting would have voted for them, and if they had been allowed to vote, that would have substantiallychanged the end result. They have not shown how many of their supporters were refused accreditationor chased away after accreditation and prevented from voting. Nobody came to testify that he/shewas refused accreditation.

Another common complaint from the Petitioners is the non stamping of duplicate copies offorms EC 8A. This is in apparent reliance on section 74 of the Electoral Act (2010) as amended.The Petitioners have tendered duplicate copies of these forms which were given to their agents atthe polling units upon the conclusion of election. Our attention has not been drawn to any legalrequirement that these duplicate copies must also be stamped. What has however emerged fromthe testimony of the witnesses of the Respondents is that the agents signed on the original copy ofform EC 8A which is white in colour. It is this original that bears the official stamp of the 3rd Respondent.We confirm from the duplicate copies of forms EC 8A tendered by the Petitioners that their agentsdid not sign directly on these duplicate copies; their signatures thereon appear as carbon copies.We entirely agree with the testimony of the Respondents that the stamp is not likely to be visible onthe duplicate or carbon copies. We confirm this fact from the certified true copies of these sameforms EC 8A tendered by the Petitioners. These certified true copies made from the original all bear

the official stamp of the 3rd Respondent. While we agree with the Petitioners that some of theseduplicate copies of form EC 8A carry the official stamp of the 3rd Respondent, those stamps were putdirectly on those duplicates. The scenario created is that while some presiding officers stampedboth the original and the duplicate copies, most simply stamped only the original copy.

And in any case, how has the non stamping affected the results of the election, or how has itaffected only the Petitioners. If the contention of the Petitioners is that the unstamped forms EC 8Ashould be discountenanced, then they too would be affected by the cancellation of such results.

The Petitioners have also alleged multiple voting. Multiple voting can arise where one voterhas voted for more than one candidate at the election or where a voter votes more than once for acandidate at an election. Clearly therefore multiple voting can only be proved by the examination ofthe ballot papers used and determining that several ballot papers were thumb printed by one individual.Pius Adeyemi Bakare – PW38 is a technology expert, data analyst etc who was engaged by thePetitioners to do a forensic analysis of the materials used for the election. His scope of assignmentas testified to by him included the scanning of the ballot papers, examining and comparing impressionsfrom the ballot papers in order to ascertain if the ballot papers and other forms used for the electionwere properly used in accordance with the Act and the Manual. We understand this scope of workas including the identification of multiple voting. He did not testify that he discovered any multiplevoting in the ballot papers he examined or scanned. He conceded under cross-examination that “myreport does not talk about finger prints.” Without analyzing the finger prints on the ballot papersused, there cannot be proof of multiple voting. The pleading in paragraph 36g to the effect that –

“ Illicit and multiple fingered and finger-printed ballot papers in favour of the 1st and 2nd Respondents were deposited in the ballot boxes at the polling units and wards challenged contrary to the prescribed mode of marking the ballot papers by thumb print”has not been proved.His testimony does not also establish the fact that he observed over voting in any polling unit afterexamining all the materials used for the election as given to the Petitioners by the 3rd Respondent.The various bags containing the ballot papers used for the election on 9/8/14 in the 17 LocalGovernment Areas in contention and which PW 38 said he examined are before the Tribunal asExhibits 364 – 380. No attempt was made by the Petitioners to physically demonstrate before theTribunal the multiple voting. It is clear from prayer iii of paragraph 59 of the petition that the Petitionersintended that the Tribunal should do the physical recounting of these ballot papers. We also thoughtthat they were being tendered for that purpose. However after tendering them, the Tribunal was notmoved to do the physical recounting and verification of the results. Apart from the confirmation ofPW38 that they were the ballot papers he examined, the only other use made of the ballot papers bythe Petitioners was in the cross-examination of Respondents’ witnesses, where they were shownballot papers from their Local Governments and asked if they were the type used on the election day.They all answered in the affirmative. We really do not therefore appreciate the purpose for which thesaid ballot papers were tendered.

The Petitioners have alleged intimidation, harassment and inducement of voters in almost allthe polling units in contention. No evidence has however been led in proof of these assertions. Nota single witness has testified before the Tribunal that he/she was unable to vote due to harassmentor intimidation by the Respondents or their agents.

It is the averment of the Petitioners in paragraph 24 of their petition that on the day of election,the 1st Respondent sponsored on air an election advertisement of public campaign canvassing forvotes on the state owned radio station, Osun State Broadcasting Corporation (OSBC). This led theNational Broadcasting Commission (NBC) to impose a fine on the Radio Station. They pleaded theaudio tape of the recording. No such tape is before the Tribunal. No evidence from anybody whoheard the broadcast. Clearly the Petitioners have abandoned this pleading. Similarly not proved isthe allegation of the Petitioners in paragraph 36j. That the 3rd Respondent recruited staff and membersof Osun Youth Empowerment Scheme (OYES), who were loyal to the 1st and 2nd Respondents as adhoc members supposedly to be members of the National Youth Service Corps. It is the evidence ofPW1 – Prince Bola Ajao who is the acting secretary and publicity secretary of the 2nd Petitioner andwho represented the 2nd Petitioner throughout the proceedings in this petition that the 3rd Respondent,despite the protest letter written by the Petitioners, went ahead to use OYES corps cadets and nonNYSC persons as ad hoc staff in the conduct of the said election. The list of ad hoc personneldeployed for the 2014 Governorship election is before the Tribunal as Exhibit 361, while the list ofNYSC members used for the said election is before the Tribunal as Exhibit 361B. Both Exhibits weretendered by the Petitioners. They did not however identify the OYES members used as ad hoc staff.Nobody has been mentioned as an OYES member recruited by the 3rd Respondent as an ad hocstaff on the day of the election. On the other hand the Respondents, particularly the 1st Respondent,called witnesses who are members of OYES but acted as their agents on the day of election. Theseare RW14 and RW15, who were both polling agents at their respective units for the 1st Respondent.RW2 – who is a member, Customary Court in Osogbo testified that he did not see any OYES memberat his polling unit 006 ward 3 of Olorunda Local Government. None of the witnesses for theRespondents was contradicted on their testimonies that OYES members did not participate as adhoc staff for the 3rd Respondent.

The Petitioners have in paragraph 37 of their petition pleaded that some named members ofthe 2nd Respondent were arrested on the election day with ballot papers. No evidence of such anarrest has however been led and no police report to that effect is before the Tribunal.

It is the evidence of PW1 in paragraph 6 of his sworn deposition that he attended thestakeholders meeting with officials of the 3rd Respondent on 4/8/14 at which the Resident ElectoralCommissioner informed them that 972, 614 Permanent Voters Card (PVC) have been issued tovoters in the State out of the total eligible registered voters stated to be 1,406, 1471 leaving abalance of 433, 533 PVCS to be collected by the owners. He further testified in paragraph 37 that –

“ 37. — based on the briefing of the INEC Resident Electoral Commissioner for Osun State of4th August, 2014, where it was stated that 433, 533 of the 972, 614 permanent voterscards issued to voters in Osun State had not been collected as at 4th August, 2014, thenumber of total votes claimed to have been returned from the areas under challenge in thispetition is not realistic.”

The totality of the evidence of PW1 in paragraphs 6 and 37 of his deposition is that out of the 1,406,147 registered voters, 972, 614 collected their PVC leaving 433, 533 PVC uncollected. It thereforemeans that as at 4th August 2014, which was the deadline for the collection of PVC, there were 972,614 eligible voters with PVC to vote in the election. In paragraph 14 of the petition and paragraph 17of the deposition of PW1, the scores for each candidate that participated at the election as announcedby the 3rd Respondent have been stated. It is not the contention of the Petitioners that the totalscores by all the candidates when added together exceed the number of voters who collected theirPVC, that is 972, 614. It is only in such a situation that the Petitioners can allege that the total votesclaimed to have been returned is unrealistic. This would have also established a clear case of overvoting and the Petitioners would have then made a case for the cancellation of the entire result.Having not shown that the votes scored by all the candidates exceeded the number of eligiblevoters, they cannot assert, as they have done that the total votes returned in the areas under challengeare unrealistic.

It is the further testimony of PW1 in paragraph 8 of his deposition that at the said meeting,representatives of the political parties were given copies of the hard disk containing the register ofvoters in Osun State. He said he has reviewed the said voters’ register given to the 2nd Petitionerand he “observed that several under aged persons were shown as registered voters.” Interestinglyhe did not even mention one such under aged person in his deposition, despite the materials at hisdisposal at the time he was making his statement. Under cross-examination by counsel to the 3rd

Respondent, PW1 conceded that voters did not come to him to tell him their age before voting. ThePetitioners have also not proved their allegation of voting by under aged persons.

From the evidence of PW1, it is clear that the assertion of the Petitioners that there was mass

movement of unregistered persons into Osun State and who indeed voted in the election is borne outby the fact that there was mass movement of people out of Osun State on Sunday 10th August, 2014and Monday 11th August 2014 after the conclusion of the election. That this mass movement wasfacilitated by the 1st and 2nd Respondents. PW1 says he personally witnessed this and he knows that“but for the involvement of these unregistered voters who were brought by the 1st and 2nd Respondentsand actually voted even though wrongfully, it was not possible or practicable to return the quantum ofvotes returned from the affected units in the wards of the Local Government Areas under challenge.”It is an undisputed fact that election took place in all the 30 Local Government Areas in the State on9th August 2014. If the 1st and 2nd Respondents have imported voters as alleged by the Petitioners,why would they distribute these “imported” voters in only 17 out of the 30 Local Government Areas?As stated earlier, PW1 testified that before the election, the 3rd Respondent gave them a hard diskcontaining the list of all registered voters. Prior to this, and during the registration exercise, they hadcomplained about the registration exercise conducted by the then 3rd Respondent’s Resident ElectoralCommissioner for the State, Ambassador Rufus Oluwatoyin Akeju. Notwithstanding their complaint,the REC handled the registration exercise and he massively manipulated it in favour of the 1st and 2nd

Respondents. The issue of the voters registration exercise, being a pre-election matter, does not fallunder the jurisdiction of this Tribunal. The Petitioners had a right to have challenged the said registrationin Court. Having not done that, this Tribunal is bound by the register of voters used by the 3rd

Respondent on the day of the election.The fact of massive movement of people out of the State after the election is not conclusive of

the fact that those persons were “imported” into the State to vote for the 1st and 2nd Respondents. Wetake judicial notice of the fact that indigenes of Osun State who live outside the State have the right toregister in the State and also come to the State during the voting period and leave the State aftervoting.

The Petitioners having not shown that all those “imported” persons who voted did not havetheir names on the voters register, which we hold was the authentic register made for the purpose ofthe election, have failed to prove their assertion that unregistered and ineligible voters were allowedto vote, and indeed voted for the 1st and 2nd Respondents.

The Respondents objected to almost all the documents sought to be tendered by the Petitionersas Exhibits. The documents tendered by the Petitioners include certified true copies of documents,particularly Forms EC 8A series, EC 8B series, EC 8C series, EC 8E series, EC 25B series and somevoters’ registers. The Respondents are objecting to the admissibility of these certified true copieswhich were tendered from the bar on several grounds. Firstly that the purported certification on thedocuments does not satisfy the requirements of section 104 of the Evidence Act, 2011. They reliedon the cases of Justus Nwabuoku & Ors v. Francis Onwordi & Ors (2006) 8 – 9 SCM 247; (2006)5 SC (Pt.III) 3 and Belgore v. Ahmed (2013) 8 NWLR (Pt.1355) 60 at 124. Secondly that several ofthe voters’ registers have several pencil inscriptions thereon making them no longer to be certifiedtrue copies. In response the Petitioners are urging on the Tribunal to overrule these objections andadmit in evidence these certified true copies as they have complied with sections 104 and 105 of theEvidence Act. Further that the Respondents having consented to the tendering of these documentsfrom the bar during the pre-trial session, are estopped from objecting to their admissibility as Exhibits,relying on the case of Longe v. First Bank PLC (2006) 3 NWLR (Pt.967) 280. The Respondents inreply contend that the case of Longe (supra), which was upturned by the Supreme Court, is nolonger binding on this Tribunal. Further that the pre-hearing report cannot impose an obligation toconsent to the tendering of documents on any party. Relying on the case of Okulade vs. Alade(1976) 1 All NLR 67 at 62 (sic).They submit that the Tribunal can expunge from its records any Exhibit admitted where such isinadmissible in law even if there was no objection to its admissibility.

In the course of the pre-trial session, counsel on behalf of the 3rd Respondent informed theTribunal that “documents certified by the 3rd Respondent can be tendered by consent.” In its pre-hearing report, the Tribunal stated that “Certified True Copies of documents will be admitted in evidenceas Exhibits without objection.” With due respect to Petitioners’ counsel, this does not prevent theRespondents from raising any objecting to the admissibility of documents, which, according to them,cannot in law, be referred to as certified true copies.

Section 104(I) of the Evidence Act provides:-“(I) Every public officer having the custody of a public document which any person has a right toinspect shall give that person on demand a copy of it on payment of the legal fees prescribed in thatrespect, together with a certificate written at the foot of such a copy that it is a true copy of suchdocument or part of it as the case may be.”The Respondents have emphasized the phrase “certificate written.” We understand them as contendingthat such a certificate should be written in long hand. We have seen the certification done on theExhibits in question. As rightly submitted by the Petitioners, the 3rd Respondent has not denied doingthe certification. The 3rd Respondent has also not denied being in custody of the documents fromwhich the certified copies were made. It is therefore the appropriate authority to do the certification.See section 104(3) of the Evidence Act. Section 104(2) of this Act provides:-“(2) The certificate mentioned in sub-section(I) of this section shall be dated and subscribed by suchofficer with his name and his official title, and shall be sealed, whenever such officer is authorized bylaw to make use of a seal, and such copies so certified shall be called certified copies.”We have seen the certification done by the 3rd Respondent. We do not appreciate the contention ofthe Respondents that it does not comply with section 104 of the Act. It is not their contention that thecertificate has not been signed or dated. It is also not their complaint that the name and title of thecertifying officer has not been disclosed. Their only complaint is that these details should have beenwritten in long hand instead of a stamp impression. We find substantial compliance with the provisionsof the Evidence Act. And in any case, the law imposes a duty on the 3rd Respondent to do thecertification. The Petitioners have no control over the 3rd Respondent and cannot dictate to him howhe should carry out his lawful duties. If therefore the 3rd Respondent does not do his duties in strictcompliance with law, should Petitioners be held responsible? Considering the quantity of documentsinvolved in election petitions, it is not feasible or reasonable to contend that writings on them shouldbe done in long hand. As for the pencil inscriptions on the said documents, it is clear that they weremade after the certification. The Petitioners have not called on us to consider the pencil inscriptionsand we do not see how they have reduced the probative value of the documents.

On the whole, we overrule the objections raised in respect of the Certified True Copies ofdocuments which are in evidence as Exhibits. We hereby admit them as Exhibits and we shallconsider them in the determination of this petition. For avoidance of doubt, the documents that fallinto this category are Exhibits 1 – 185 (which comprise of Forms EC 8A, EC 8B, EC 8C, EC 8E, EC40A, EC 40B, EC 40C and EC 25B). Exhibits 249 – 341 (CTCs of Voters Registers). We also notethat the Respondents also tendered some similarly certified true copies of the voters registers throughthe witnesses of the Petitioners under cross-examination. See Exhibits 242 and 248 all tendered by2nd Respondent in the cross-examination of PW14 and PW20 respectively.

On Exhibit 236, CTC of a Court order made on 28/3/2011, the objection is on the ground thatit is not relevant and was neither pleaded nor listed. While we agree that it has not been listed, we donot agree that it has not been pleaded. It is pleaded in paragraph 29 of the petition. We thereforeoverrule the objection.

The Petitioners also tendered duplicate copies of forms EC 8A, which are in evidence asExhibits 188 – 204. Duplicate copies of forms EC 8B, Exhibits 205 – 219. Duplicate copies of formsEC 8C, Exhibits 220 – 232. Duplicate copies of form EC 8D Exhibit 233. The grounds of objectionraised by the Respondents to the admissibility of these documents tendered through PW1 are thatPW1 is not their maker, and he did not mention them in his sworn deposition. That the documentswere neither pleaded nor listed in line with paragraph 41(3) of the First Schedule to the ElectoralAct, 2010. They rely on the cases of Flash Fixed Odds Ltd v. Akatugba (2001) 1 NWLR (PT. 717)46 at 63; Gregory v. The State (1998) 8 NWLR (Pt.561) 210 at 258 and Okorafia v. Agwu (2012) 1NWLR (Pt.1282) 425 at 452 – 453 paragraphs H – B. The Respondents are also contending thatthese duplicate copies ought to be certified. We agree with the Petitioners that these documents

have been pleaded. See items 1 – 4 on pages 178 – 179 of the petition and item 30 on page 181 ofthe petition. See also the case of Ojegbe v. Omatsone (1999) 3 LRECN 126 at 135. While weagree with the Respondents that PW1 did not specifically testify that he got results from their agentsafter the election, his deposition in paragraph 23 is that he got “reports” from the agents. In hisevidence before the Tribunal, he said, “— I received results from our agents on the field —”. Thecounsel then proceeded to tender these results through PW1. Petitioners’ counsel has drawn ourattention to the definition of “report” contained in the 6th edition of Black’s Law Dictionary. We agreewith the Petitioners that these reports can be in the form of results. It is not the evidence of PW1 thatthese reports were oral. And even if we hold that these duplicate copies were not referred to by PW1in his deposition and therefore not admissible through him and expunge them from the evidence, wedo not see how this will be fatal to Petitioners’ case in view of the fact that the certified true copies ofthese same results are already in evidence. We entirely also agree with the Petitioners that theseduplicate copies, are primary evidence which do not need certification. See section 86(4) of theEvidence Act, 2011 and the case of Obun v. Ebu (2006) All FWLR (Pt.327) 419 at 455. We thereforeoverrule these objections and shall consider these documents where appropriate, in the determinationof this petition.

The Respondents are also urging on the Tribunal not to rely on the letter dated 14/8/14 admittedas Exhibit 234. It is a letter written and signed by PW1 to C.O.P of Osun State. Their objection is thatit is not listed. On 17/11/14 when the Petitioners’ counsel sought to tender the said letter throughPW1, its maker, counsel to the 1st Respondent objected to its admissibility as “it is a strange documentbecause it is not one of the listed documents.” Counsel to the 2nd Respondent said he had noobjection to its admissibility but will address the Tribunal at a later stage on its worthlessness. Counselto the 3rd Respondent, while objecting to its admissibility, conceded that though it has been pleadedit is not listed relying on paragraph 4(5)(c) of the 1st Schedule to the Electoral Act. Petitioners’counsel drew our attention to item 46 on page 182 where they listed “other documents relevant to thepetition.” We hold that this does not amount to listing the document as contemplated by paragraph4(5)(c) of the 1st Schedule. The document having however been pleaded, we shall admit it inevidence as the Respondents have not been taken unaware of its existence.

Exhibit 235 is a document dated 4/8/14 tendered through PW1. It is a letter written to the 3rd

Respondent by the 2nd Petitioner protesting the use of OYES cadets as ad hoc staff for the election.It is listed as item 42 on page 182 of the petition. Although PW1 did not make specific mention of thisletter in his deposition, he made mention of a letter written to the 3rd Respondent on 1/8/14 protestingthe use of OYES cadets as ad hoc staff. See paragraphs 9 – 11 of his deposition. We therefore hold,relying on the case of Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt.136) 24, thatfacts referring to the document have been pleaded. PW1, as the acting secretary of the 2nd Petitioneris a proper person through whom the document can be tendered. We overrule the objections.

Exhibit 243 is a report produced by PW15. The Respondents in urging the Tribunal not to relyon this report are submitting that being a computer generated document, it must comply with section84 of the Evidence Act to be admissible in evidence. We note that when Petitioners’ counsel soughtto tender this report, counsel to both 1st and 2nd Respondents did not raise any objection to itsadmissibility. The above objection was raised by counsel to the 3rd Respondent who also relied onthe case of Kubor v. Dickson (2013) 4 NWLR (Pt.1345) 534. He reiterated this objection in his finaladdress. In this category also is a report made by PW38 and which is before the Tribunal as Exhibit342. This time around, counsel to both 1st and 2nd Respondents objected to its admissibility relying onSection 84 of the Evidence Act. Counsel to the 1st Respondent relied on the case of Kubor v.Dickson (supra), while counsel for the 2nd Respondent relied on Akeredolu v. Mimiko (2013) 1NWLR (Pt.1338) 225. On behalf of the 3rd Respondent, counsel adopted the submissions of counselto 1st and 2nd Respondents. He also relied on the book “The Law of Computer Generated Evidencein Nigeria “by Avari Publication at pages 66 – 70. In response, Petitioners’ counsel contends that theRespondents are misapplying the provisions of Section 84. That the report is not a product ofinformation stored in a computer in its retrieval form. That the computer was simply used to type thereport. He distinguished the case of Kubor (supra), where the documents were down loaded fromthe internet. That the book relied upon by counsel to 3rd Respondent is not relevant. Petitioners’counsel has urged on the Tribunal to overrule these objections as the report is not an e-documentstored in a computer.

The summary of the evidence of PW15 and PW38 is that they analyzed the electoral materialsused in the conduct of the Governorship election on 9/8/14 by the 3rd Respondent in producing theirreports. We have carefully read the provisions of Section 84 of the Evidence Act, with due respect tothe Respondents, we do not agree with them that these reports are the type of computer generateddocuments envisaged by Section 84. To hold otherwise would mean that any document typed on acomputer becomes a computer generated document. These would include all the processes filed inthis petition. We do not think this is the intention of the draftsmen of Section 84 of the Evidence Act.We have read the case of Senator Mohammed Ali Ndume v. FRN unreported decision of the Courtof Appeal delivered on 17/12/13 in Appeal No. CA/A/78/CR/2013 and CA/A/78A/CR/2013, referred toby the Respondents. It is to the effect that the provisions of Section 84 of the Evidence must becomplied with. But as stated earlier, we do not think the intendment of that law is that every documenttyped using a computer becomes a computer generated document. We are therefore in agreementwith the Petitioners and hold that these reports do not fall into Section 84 of the Evidence Act. Weshall therefore not discountenance Exhibits 243 and 342 in the determination of this petition.

Exhibits 364 – 380 are sacks said to contain ballot papers. Exhibit 363 is the subpoenaissued to the 3rd Respondent to produce all the ballot papers used for the election in the 17 LocalGovernment Areas in contention. Pursuant to this subpoena, the sacks said to contain the ballotpapers were produced before the Tribunal. PW38, through whom they were tendered identified thebags as containing the original ballot papers used for the election. His evidence is also that he usedthese ballot papers in arriving at his report – Exhibit 342. We find no basis for the objection of theRespondents respecting the subpoena. As regards the sacks of ballot papers, they are contendingthat the contents of the sacks were not shown to them. But if they contain ballot papers, then PW38,not being the maker, is not competent to tender them in evidence. They rely on Famakinwa v. UniIbadan (1992) 7 NWLR (Pt.255) 608 at 623 – 625, Belgore v. Ahmed (2013) 8 NWLR (Pt.1355) 60at 100 and Flash Fixed Odds Ltd v. Akatugba (2001) 9 NWLR (Pt.717) 46 at 63. Counsel to the 3rd

Respondent relied on Section 83(I)(b) of the Evidence Act and Omega Plc v. O.B.C. Ltd (2005) 8NWLR (Pt.928) 547 at 583. While conceding that PW38, is not the maker of these documents, thePetitioners nonetheless maintain that he is the proper person to tender them having stated that heinspected and used the said ballot papers. Petitioners’ counsel submits that the case of Belgore v.Ahmed (supra) where bulk documents were dumped is not applicable here. He also relies on thecase of Famakinwa (supra) and C.A.N v. Lamido (2012) LPELR 7828.

In the course of cross-examination of Respondents’ witnesses, the Petitioners’ counsel madeuse of some of these documents from various sacks, in relation to the witness being cross-examined.All the witnesses confronted with the documents confirmed that they were the type of ballot papersused for the election on 9/8/14. We also noted that they were in their original form. They do nottherefore require certification. These documents were tendered through PW38 because he testifiedthat he made use of them in arriving at his report. They therefore become relevant in the determinationof this petition. We discountenance the objections raised by the Respondents and shall refer tothese Exhibits in the determination of this petition.

Closely related to the issue of the reports produced by PW15 and PW38 is whether they areexpert witnesses as they are referred to by the Petitioners. It is the submission of the Respondentsthat these witnesses are not expert witnesses having regard to the nature of evidence offered whichis neither scientific nor technical. That they merely presented what they considered to be their findingsupon examination of the electoral materials. They relied on cases of ANPP v. Usman (2008) NWLR(Pt.1100) 1 at 67 – 68; Shell Petroleum Co. Ltd v. Oroko (1990) 6 NWLR (Pt.159) 693 and Attorney-General v. Abubakar (2007) All FWLR (Pt.375) 405.

Section 68 of the Evidence Act, 2011 provides:-

“68. When the Court has to form an opinion upon a point of foreign law, customary law orcustom, or of science or art, or as to identity of handwriting or finger impressions, the opinionupon that point of persons specially skilled in such foreign law, customary law or custom, orscience or art, or in questions as to identity of handwriting or finger impressions, areadmissible. (2) Persons so specially skilled as mentioned in subsection (I) of this section are called experts.”

The Supreme Court in the case of A – G v. Abubakar (supra) held that:-“The opinion of an expert is always necessary where he (the expert) can furnish the Court withscientific or other information of a technical nature that is very much or even likely to be outside theexperience and knowledge of the judge. But, expert evidence on matters which reasonably fallwithin the knowledge and experience of the judge or a Tribunal may not be called.”

In ANPP v. Usman (supra), the Court held that:-“—Statistical analysis does not fall within the items contemplated under section 57(I) of the EvidenceAct.” (Now section 68(I) of the Act).Under cross-examination, PW15 testified that his report is as “a result of the analysis of the results inall the Local Governments.” In response to a question by counsel to 3rd Respondent he said, “Thedata analysis I did is based on the election materials used for the 9/8/14 election.” PW35 alsoconfirmed under cross-examination that his assignment was to examine and inspect materials for allthe polling units to ascertain whether there are irregularities, non-compliance with the Manual andthe Electoral Act. He concedes that “any literate person can look at a document and bring out facts.”We have found no scientific or technical information contained in the reports submitted by PW15 andPW38. While they may be experts in their respective fields, no such expertise is exhibited in thesereports. They simply looked at the electoral materials and brought out facts there from. Theirreports and themselves would therefore be treated not as expert evidence/witnesses.

The Respondents have urged the Tribunal to consider PW15 and PW38 as interested personssince they were paid to issue the reports in issue. They rely on Section 83(3) of the Evidence Act andthe case of Akeredolu v. Mimiko (2014) 1 NWLR (Pt.1388) 402 at 465, where the Supreme Courtheld that it is unsafe to rely on the report put in by an expert for a fee. Both PW15 and 38 agreed thatthey were paid for the work by the 2nd Petitioner.

The above notwithstanding, we shall still look into these reports handle them with cautionand decide whether they have added any value to the Petitioners’ case, even if we are to rely onthem.

We also consider it expedient to address the submissions made in the Petitioners’ final addresswith respect to the failure of the 3rd Respondent to call or lead viva-voce or oral evidence to supporttheir pleadings. It was contended that this failure meant that the 3rd Respondent has abandoned itspleadings and that in law where a party fails to call any evidence to support its case or neglects tolead rebuttal evidence, that a Court is entitled to resolve matters in controversy against that partyunless there are valid reasons to the contrary. The cases of F.C.D.A. v. Naiba (1990) 5 SCNJ 186,Honika Sawmill (Nig) Ltd v. Mary Okojie Hoff (1994) 2 SCNJ 86 and Alhaji Muhammadu M.Dingyadi & Anor. V. Aliyu Magatakarda Wamako & Ors. (2008) LPELR 4041 were cited.

In response, the 3rd Respondent contends that the Petitioners cannot rely on the perceivedweakness in the case made out by the 3rd Respondent but must succeed on the strength of their owncase as made out in Court particularly when the reliefs they are seeking are declaratory reliefs. Theycontend that the Petitioners having failed woefully to prove the allegations as contained in the petition,the 3rd Respondent had no obligation in law to call witnesses if there is nothing on record to warrantthe calling of witnesses especially as in this case, they had cross-examined witnesses called by thePetitioners and 1st and 2nd Respondents and tendered some documents which go to substantiate itspleadings. We were urged to treat the submissions of Petitioners on the issue as misconceived.

The issue here is one to be resolved within a very narrow legal compass which is simply toproperly situate who has the burden of proof in the context of the extant electoral dispute.

In resolving this issue, our first port of call must necessarily be Sections 131(I), (2) and 132of the Evidence Act 2011 which stipulate as follows:-“131 (I) Whoever desires any Court to give judgment as to any legal right or liability dependenton the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burdenof proof lies on that person.

132. The burden of proof in a suit or proceeding lies on that person who would failif no evidence at all were given on either side”

The above provisions appear to us clear and self explanatory – the Court of Appeal in C.P.C.& Anor. V. INEC & Ors (2011) LPELR – 9085 (CA)1, per Akaahs J.C.A. (as he then was) clearlyidentified the Petitioner as the one who would fail if no evidence were given at all from either sidewhen it held that:-“In an election petition, it is the Petitioner who will fail if no evidence at all were given oneither side as there is a presumption of regularity of an official act.”In Buhari v. INEC (2008) 19 N.W.L.R. (Pt.1120) 246 at 350 paragraph E, the Supreme Court PerTobi J.S.C. enunciated and restated the time honoured legal principle on the fixation of the burden ofproof in election petitions on the Petitioner who is duty bound to prove the affirmative contents of hisallegations as it is he who would loose if no evidence is elicited to establish the grounds upon whichhis petition is predicated.

Flowing from the above, it is indisputably clear, that as this petition is grounded on corruptpractices, electoral malpractices and non – compliance with the provisions of the Electoral Act 2010(as amended), the onus is squarely on the Petitioners to prove same.

The stance or disposition of 3rd Respondent in not calling oral viva voce evidence, in ourconsidered opinion will only matter to the extent that the Petitioners have crossed the first and criticalthreshold of placing material facts or evidence to sustain the allegations made. Where the Petitionersadduce such evidence, to creditably establish the allegations, then the burden shifts on the otherparty against whom judgment would be given if no more evidence were adduced. See section133(2) of the Evidence Act.

Where however such threshold is not met or crossed by a Petitioner, to discharge the burdenof proof, a burden so placed by law, the stance or disposition of the Respondent would in suchcircumstances lack any utility value in the context of proof of the contested assertions.

In Awuse v. Odili (2005) All FWLR (Pt.261) 248 at 316, it was held as follows:-“It is elementary principle of law that the burden is on him who asserts to adduce evidence inproof of that assertion. In the instant case, the Petitioners at the Tribunal had the onerousduty of proving his petition and such reliance could not be made on the weakness of the caseof defence. . .”So be it in this case. Whether or not the Petitioners have succeeded in this regard is what is now tobe determined presently.

Having dealt with the preliminary issues, we shall proceed to the consideration of issue 2. Inthe consideration of this issue, we intend to deal with the 17 Local Government Areas in contentionindividually, in the order they are listed in paragraph 22 of the petition.

1. AIYEDAADE LOCAL GOVERNMENT AREAIn Aiyedaade Local Government, the petitioners by their pleadings in paragraph 39 on pages 20-26of their petition clearly limited their complaint or challenge to the conduct of the elections in respectof only 3 Wards and the following specific polling units/stations or points as follows:1. OTUN BALOGUN WARD 02 (Units 001, 002, 003, 004, 005, 006 and 007)2. OLUFI WARD 03 (Units 001, 002, 003, 004, 005, 006, and 007)3. OTUN OLUFI WARD 04 (Units 001, 004, 005, 006, 008, 009, 010 and 011)

The units complained above cumulatively amount to 22 units out of a total of 132 in the LocalGovernment. The implication of this precisely defined or streamlined position is that the Petitionersare necessarily deemed to be satisfied with the results as declared by the 3rd Respondent withrespect to the other polling units or points not challenged in the petition and as such have not joinedissues with the Respondents with respect thereto. This tribunal will therefore not concern itself withsuch polling units with respect to which parties did not join issues on the pleadings in the evaluationof evidence led on record.Now the substance of the complaints by Petitioners with respect to this Local Government consist ofwide-range allegations of absence of accreditation of voters, unlawful and arbitrary allocation ofvotes, inflation of votes, intimidation and harassment of voters, non-stamping of result sheets andthe general complaint of alteration and manipulation of voters register.The question is, to what extent have the petitioners been able to establish these defined allegationswithin the ambit of the required standards set by law?Now the only evidence given in respect of this Local Government is of that of PW33 and PW36.PW33 served as Ward Supervisor/Collation Agent for P.D.P in Ward 4 while PW36 served as pollingAgent for P.D.P at Unit 001of Olufi Ward 003. No witness was however called to give evidence withrespect to the allegations made with respect to OTUN BALOGUN Ward 02 which covered Pages 20to 22 of the Petition. The effect of this in law is that the averments or allegations with respect to OtunBalogun Ward 02 are not backed up by credible evidence and is deemed as abandoned. SeeUwegba V. A.G Bendel State (1988)1 N.W.L.R (pt.16)363.In Arabambi V. Advance Beverages Ind. Ltd (2005)19 N.W.L.R (pt.959)1 at 25, the SupremeCourt made the position clear in the following terms:“The law is clear and settled that pleading is not synonymous with evidence and so cannotbe construed as such in the determination of the merit or otherwise of a case. A party whoseeks judgment in his favour is required by law to produce adequate credible evidence insupport of his pleadings, and where there is none then the averments in the pleading aredeemed abandoned.”Guided by the above, we accordingly shall discountenance the averments with respect to OtunBalagun Ward 02. Now as stated earlier PW33, served as Ward Supervisor/Collation Agent for Ward04. His evidence is a mere repetition of the facts pleaded in paragraph 39(a) to (h) of the Petition.We immediately address the point raised by learned counsel to the 3rd Respondent with respect tothe apparent conflict in the ward PW33 comes from. It is correct that in his oral evidence, PW33 saidhe was from ward 04 of Aiyedaade Local Government, but paragraph 2 of his witness depositionreads that he is from ward 3. We do not consider this conflict as material and one to waste energyon. It is at best a mere typographical error because even the heading of the witness deposition isclear in its import and it refers to ward 04. His evidence is similarly clear to the effect that he votedin unit 004 and was the Ward Supervisor and Collation Agent for the said ward. The error in ouropinion will have no bearing on our evaluation of his evidence which we shall now proceed to do.As stated earlier, his evidence is a mere repetition of the pleadings with respect to ward 4. Nowgoing through the pleadings at pages 24 to 26 of the petition (paragraphs a-h) vis-à-vis the evidenceof this witness, it is clear that PW33 did not give evidence with respect to the allegations of unjustifiabledisenfranchisement, voting by unqualified voters and the complaint of lack of proper accreditation.In law in the absence of evidence to support these pleadings, they are deemed as abandoned.Now with respect to other aspects of his evidence, while answering questions under cross-examination,PW33 stated that there are 14 units in the ward he supervised and that they had agents in all theseunits who reported to him on the conduct of the elections in those respective units.He further stated that apart from what he observed as he visited the units, the basis of his evidenceis predicated on the “reports” of the agents they had in each of the units. He also stated undercross-examination that he neither saw the counting or collation of votes in any of the units includingthe unit where he voted.The effect of the evidence of this witness is that his evidence is essentially not in respect to what hesaw or personally witnessed. There is absolutely no indication in his evidence and this he admittedunder cross examination as to the aspect of his evidence which he personally witnessed and theother aspect which he was told or did not witness. This clearly is fatal to the case of petitioners. SeeGundiri V. Nyako (2014)2 N.W.L.R(pt 1391)211 at 244 a-b. There is no duty or obligation on courtto sort out what aspect of the evidence he witnessed and that which he did not witness. The implicationof this as rightly submitted by all counsel for the Respondents is that the entirety of the evidence ofPW33 with respect to Otun Olufi Ward 04 under consideration amount to hearsay evidence by virtueof Sections 37 and 38 of the Evidence Act 2011 (as amended). As such, the gamut of the evidenceof this PW33 is worthless for the purpose of these proceedings, in so far as they relate to facts inissue which did not proceed from his personal knowledge. This tribunal cannot ascribe any probativevalue to such evidence. See Jolayemi V. Alaoye (2004)12 N.W.L.R (pt.887)322; Awuse V. Odili(supra); Gundiri v.Nyako (supra).Now, even with respect to areas that can be said he witnessed, PW33 under cross-examination,stated that he does not know the names of the agents he claimed inflated and arbitrarily allottedvotes to 1st and 2nd Respondents and that indeed he does not even know what the original releasedresults were and what they were inflated to. In addition, he did not even witness the counting andcollation of votes in his own unit or any unit which completely detracts from the credibility of theseallegations made with respect to Ward 4. Indeed if he was not at any unit when votes were collatedand counted, what then is the basis for his assertion or evidence that votes were arbitrarily allocatedand that Forms EC8A for certain units were not stamped in his ward.Now despite this very serious allegation of arbitrary allocation of votes, PW33 under cross-examinationconceded that he signed the summary of result sheet, Exhibit 163(d2) and also that their partyagents signed the result sheets which they brought to him. He stated that the agents signed theresult sheet so that they can get the duplicate copy to show their supervisor.This candid admission of signing of the result sheets gravely compromises the allegation of arbitraryallocation of votes. In law where a polling agent signs the result sheet of an election voluntarily onthe instruction of his political party, that action authenticates the validity of the result sheet. That is sobecause a polling agent is presumed at law to understand what he appends his signature to. In thiscase PW33 and all their polling agents signed the election result sheets on the instruction of theirparty. They cannot not now turn around to deny or question the contents of the result sheet. SeeGundiri V. Nyako (2014)2 N.W.L.R (pt.1391)211 at 245 to 246H-B.Furthermore there was even no demonstration by petitioners to establish the allegations that certainForms EC8A were not stamped at all. The law is settled that where a trial is conducted on the basisof pleadings as in this case, all relevant allegations in the pleadings must be proved by credibleevidence and such evidence must be in line with the pleading. In other words, the petitioners heremust prove their case as pleaded and must prove the truth of the contents of the paragraphs of thepleadings. Where this is not done as here, the assertions made therein remain mere allegationswithout proof. See Alamieyeseighe V Igoniwari (No.2) (2007)7 N.W.L.R (pt.1034)524.Similarly the allegations of widespread intimidation, harassment and molestation of agents ofPetitioners beyond speculative posturing were not in any manner creditably established by PW33.The evidence of PW33 clearly lacks value and proves nothing.PW36 on the other hand served as polling agent specifically for Unit 001, Gbongan Unit of Olufi Ward03. No witness was called with respect to the allegations made in the remaining 6 units of the wardto wit: units 001, 002, 004, 005, 006 and 007. The effect of these as already alluded to earlier on inlaw is that averments in pleadings upon which no evidence is adduced are deemed as abandoned.By this token we accordingly discountenance the pleadings with respect to these units.Furthermore, we have carefully read the pleadings with respect to Olufi Ward 03 and in particularparagraphs (a) to (i) of the petition on pages 22 to 24 and we are in no doubt that the substance ofthe evidence of PW36 bears no relevance with the complaints made in unit 001 where he was anagent. In paragraphs (a) and (f) of the petition, the allegations pleaded with respect to unit 001 arethat no election was conducted in the unit and there was widespread intimidation and harassment of

the supporters of P.D.P by agents of 1st and 2nd Respondents. His evidence clearly went beyond theconfines of his pleadings. He added amongst others that there was accreditation of unregisteredpersons; that there was open campaign by A.P.C members and distribution of food, money anddrinks to induce people to vote for A.P.C; that after voting, figures were inflated and arbitrarily allocatedto A.P.C. All these facts were clearly not pleaded. The effect of this is that the evidence of thiswitness with respect to unpleaded facts goes to no issue. The law is sacrosanct that evidence led onany matter not pleaded goes to no issue. See Amadi V. Nwosu (1992)6 SCNJ 59.Now with respect to the aspect of his evidence duly pleaded, we clearly do not find this witnesscredible or reliable. Under cross-examination, he admitted that he does not even know the names ofthe A.P.C members who he claimed campaigned openly and distributed money, food and drinks toinduce voters. He similarly admitted that he did not in his evidence give the names of P.D.P membersallegedly harassed and does not also have the voters cards of P.D.P members allegedly scaredaway from voting. We really wonder in the face of these assertions which negatively undermine theevidence of PW36, how the petitioners expects the tribunal to accorded any weight to the allegationsof harassment and intimidation of voters by agents of Respondents.He further stated under cross-examination that he did not sign the result sheet in his ward and thathe does not even know the result of the election since he was allegedly “chased away.” Yet thiswitness made the rather outlandish claims that after voting, figures were inflated and arbitrarilyallocated.Interestingly on Exhibit 188(7), the name of the P.D.P agent is one Bolarinwa Ebenezer and notPW36 whose name is Rasaki Olawuni. When confronted with this exhibit, he conveniently said thathe could not see properly and that his eyes are not clear, but he was able to read the name of the uniton the exhibit because according to him, it was in capital letters.We won’t bother ourselves with whether PW36 really has real or imagined challenges with his sight.What however is clear is that he cannot by his oral evidence controvert the clear contents of thecertified true copy of Exhibit 188(7) which shows unequivocally that PW36 was not the party agentfor unit 001 but one Bolanriwa Ebenezer. See Sections 128 and 147 of the Evidence Act. Sincehe is not Bolanriwa Ebenezer, the party agent as can clearly be discerned in Exhibit 188, and in theabsence of any explanation of the precise role of PW36 in the election, we have no difficulty on thisand other grounds in discountenancing his evidence as tenuous, untenable and extremely unreliable.It is also relevant and perhaps pertinent to at this stage make a general pronouncement with respectto the evidence of PW1, the state secretary of P.D.P whose deposition appear to be a mere repetitionof the substance of the petition as it affects the entirety of 17 Local Government complained of.However in his witness deposition and also under cross-examination, he conceded that there are 30Local Governments in Osun State with 332 wards and 3010 units but that he was at his unit 9 of ward8 Ifelodun Local Government all through the day of the election and that movement was restricteduntil the close of polling and counting of votes. He also further admitted that all the evidence he hadgiven with respect to what happened in all the other Local Governments or other places on electiondate were based on phone calls and reports he received from his party agents who were in these3,010 units. In other wards too, his entire evidence including those with respect to Aiyedaade underconsideration amount to hearsay and lacks probative value in the circumstances. This positionholds true for almost all the other Local Governments to be subsequently treated except unit 9 ofward 8 Ifelodun where he was based.It is true that PW 1 tendered in evidence some documents to wit : Duplicate Copies of forms EC8As-Exhibits 188 to 204; forms EC8Bs-Exhibits 205 to 209;forms EC8Cs-Exhibits 221 to 232; form EC8D-Exhibit 233; Copies of letters by Petitioners to Commissioner of Police Osun state and to INEC-Exhibits 234 and 235 and finally C.T.C of a Court Order-Exhibit 236. Learned counsel to the petitionershas in his final address provided some charts and then went ahead to make a robust analysis andevaluation of some of these documents as providing the required or necessary proof of the allegationsmade in the petition. We were referred to the cases of ONUIGWE V.EMELUMBA (2008) 9 N.W.L.R(pt 1092)371; JOLASUN V.BAMGBOYE(2010)18 N.W.L.R (pt 1225)285 and INEC V. OSHIOMOLE(2009)4 N.W.L.R (pt 1132) 607 on the importance of documentary evidence as the most reliablepiece of evidence.We must state clearly that generally the established position of the law is that documentary evidenceis the best evidence. There is however a caveat on the authorities which is that there must beevidence of the purport for which the documents were admitted in supporting the issue canvassed ina party’s case otherwise the document though in evidence would lack the credibility to be accordedany probative value. See Nwole V. Iwuagwu (2006)All F.W.L.R (pt 316)325; Esiogu V. Onyeaguocha(2006) All F.W.L.R (pt 317)467.In this case the above mentioned documents may have been put in through PW1 but the key questionhere is where is the oral evidence of witnesses which provides the vital nexus or connection betweenthe two. As we have conclusively shown by the evidence of the two witnesses for this local Government,there is a complete absence of critical evidence or a demonstration of same before us in proof of theallegations made. This holds true for most of the local Governments to be treated subsequently. Theduty or obligation to tie documents to facts or evidence or admitted facts is one to be done in opencourt and not a matter for counsel’s address. It is equally not the function of the Court or tribunal toby its own ingenuity or exercise to imagine or speculate or work out the mathematics of arriving at ananswer on an issue which only evidence elicited and tested at trial can offer. See Haruna V. Modibbo(2006)2 EPR 664 at 706.In NwoleV.Iwuagwu (supra), the Court of Appeal per Aderemi J.C.A (as he then was) stated thus:“ A party is under obligation to tie his document to fact or evidence or admitted facts in opencourt and not through counsels address written or oral. This is because it is not the duty of acourt or tribunal to embark upon cloistered justice by making inquiry into the case outsidethe court, not even by examination of documents which were in evidence when the documentshave not been examined in open court, nor brought out and exposed in court or were notthings that at least must have been noticed in open court”.The Apex court made the position clear in C.P.C & Anor V. INEC &Ors (2012) 12 SCN (pt 3) 225 at245-246 in the following terms:“I find it extremely difficult to consider another channel than what the Court of Appeal did after itreviewed the findings of the Tribunal and what was available to Court. This is because I have theunease that learned counsel for the Appellants just as he did at the two Courts below is inviting thisCourt to promote or elevate submission of counsel to the status of evidence. Under what law orauthority such would be made possible I still cannot find.The Tribunal and followed by the Court below was right when it refused the invitation of counsel toutilize his charts and analysis from his written address and did the proper thing to look at the evidenceon ground. It was then the trial Tribunal was in a position to see that the Appellants merely dumpedthe documents and evidence so called without a nexus either with the necessary witnesses or to thecomplaints. Therefore, when Appellants failed to do what they ought in proof of their assertions andcomplaints by way of the legally provided methods and rather depended on the counsel’s address,they laid their flanks open and unprotected and really had no anchor. The trial Tribunal had no faultin what it did and the Court of Appeal carries out its review and evaluation duly properly and asprescribed for it. See: Orlu v. Gogo –Abite (2010) 1 (Pt.II) 56; Irogbara v. Ufomelu (2009) 5-6 SC(Pt.1) 83; (2009) 6 SCM, 107.”

It may also be necessary to state again at this point that his evidence with respect to the variousallegations of use of 2 or 3 voters register at the elections; the registration of under-aged voters andmultiple registrations, voting by unregistered voters, recruitment of OYES members and nonmembersof N.Y.S.C as ad-hoc staff of 3rd Respondent; public campaign on election day through on air electionadvertisement at Osun State Broadcasting Corporation (OSBC) by 1st Respondent clearly were allmerely speculative observations bereft of any iota of evidence. There was absolutely no demonstrationof any sort to prove these allegations by PW1 with respect to Aiyedaade Local Government andindeed all the contested Local Governments and this in our opinion is fatal.In conclusion, what we find here is that the evidence led by the Petitioners completely lacks any

degree of cogency to support the widespread allegations made with respect to the wards and units inAiyedaade Local Government Area, where the outcome of the Governorship Election has beenquestioned. We so hold.

2. ATAKUMOSA EAST LOCAL GOVERNMENT AREA.The petitioners by their pleading in paragraph 40 at pages 26 to 29 of the petition made varyingallegations in this Local Government with respect to 6 wards, to wit; Igangan Ward 02 (polling units001, 002, 003, 005 and 006); Ipole Ward 03 (polling units 001, 002, 004, 005 and 006); Iperindo Ward04 (polling units 002, 006); Aiyegunle Ward 06 (polling units 001 and 004); Forest Reserve Ward 07(polling Unit 001); Forest Reserve II Ward 08 (polling unit 001). The total number of units complainedof are 17 units.The substance of the complaints here too is that the election was characterized by electoralmalpractices in these various units as contained in the petition. Now to support these contestedassertions, the only evidence given on the side of the petitioners with respect to the conduct of theelection in Atakumosa East Local Government is that of PW41.He deposed to a very brief 6 paragraphs witness deposition. He stated that he was the P.D.P pollingagent for Igangan Unit of 001 of ward 2 and that he was at the unit from the beginning until theconclusion of the election wherein he made observations which he forwarded to his Ward Supervisor.Some of these observations were that there was no proper accreditation of voters, non-use of votersregister, non-stamping of Form EC8A and the arbitrary allocation of votes by INEC officials to A.P.C.Now no magnifying glass is required to see that the evidence of PW41 is unit specific i.e unit 001.The legal implication here is that the various allegations made with respect to the other 16 units in the6 wards are deemed as abandoned without much ado.Similarly we also note that this witness did not at all give evidence or allude in any respect to theallegation of intimidation and harassment of voters; the use of unqualified persons to vote and thedisenfranchisement of eligible voters; the inducement of voters with money by members of 1st and 2nd

Respondents all pleaded in paragraph 40 of the petition. These allegations are also deemed asabandoned. There is here an abysmal failure to prove the various constituent allegations made withrespect to this Local Government. The principle is settled and perhaps need repeating that avermentsof facts in pleadings or a petition is no evidence and has never been construed as such. Where thisis not done, it amounts to a failure of proof. See Yusuf V. Oyetunde (1998)12 N.W.L.R (pt.579)483;Olorunfemi V. Asho (2000)1 SC 15.While answering questions under cross-examination, PW41 agreed that he voted for the party of hischoice and went through the process of accreditation contrary to his evidence in chief that there wasno proper accreditation. He was equally shown Exhibit 260, the voters register which contains hisphotograph and name and which was also duly ticked or marked to undermine his allegation thatvoters register was not used in the elections. Also under cross-examination, the Form EC8A, Exhibit4 was duly stamped with his name and signature on it contrary to the allegation that the documentwas not stamped.Although this witness claims that he does not know how his name and signature got to Exhibit 4which we find convenient, we really do not see or accept that this denial can controvert the contentsof these exhibits which are certified true copies. There is similarly nothing of value by this witness tosupport the allegation that votes were arbitrarily allocated. In any event he duly signed the resultsheet or Form EC8A (Exhibit 4) and there is nothing before us to compromise the integrity of the saidresult or exhibit.As earlier alluded to, the law is settled that where a polling agent signs the result sheet of an electionresult voluntarily as in this case on the instruction of this party, that authenticates the validity of theresult sheet. This is so because a polling agent is presumed in law to understand what he appendshis signature to. In the circumstances, it is not open to the polling agent to now seek to controvert thecontents of the result sheet. See Gundiri V. Nyako (supra).The bottom line is that the evidence of this witness is completely unreliable and lacks any probativevalue and clearly failed to meet the standard of proof required to support the sort of evidence hepurported to give.It may also be relevant to refer to the evidence of RW 12 and RW 22 on the other side of the aisle.The former is an ordinary voter who said he voted freely for the party of his choice in unit 1, ward 2 ofthis Local Government. The latter was the ward agent in this unit. In their evidence both testified tothe orderly conduct of the election in this unit and debunked all the allegations made in this unit bypetitioners. Their direct evidence of what transpired in their unit was not in any manner shaken undercross examination. Indeed RW 22, the polling agent for A.P.C confirmed that he signed Exhibit 4, theform EC8A for the unit together with the agent of the petitioners and that same was equally stampedby I.N.E.C.With profound respect, and however the imagination is stretched, we cannot see our way throughhow the evidence of this sole witness, PW 41 from just one unit can aggregate to evidence or proofof the allegations made in all the contested units in this Local Government.What we find here is a complete absence of evidence of any value to sustain the allegations withrespect to the polling units in Atakumosa East Local Government where the outcome of theGovernorship Election has been questioned. We so hold.

3. BORIPE LOCAL GOVERNMENT AREA.With respect to this Local Government, the allegations of the petitioners is at paragraph 41 on pages29 to 34 of the petition and is in respect of the following 5 Wards, to wit: Oloti Iragbiji Ward 01 (PollingUnits 001, 002, 003, 004, 005 and 007); Oja-oba Ward 02 (Polling Units 001 and 002), College/Egbada Road Ward 03 (Polling Units 001, 002, 003, 005, 006, 009 and 010); Isale Oyo Ward 04(Polling Units 001, 002, 003, 005 and 006) and Agba Ward 05 (Polling Units 001, 002 and 006). Thetotal number of units challenged in these 5 wards are 24.Here too, only one witness, PW31 was called and he served as Ward Supervisor for Isale Oyo Ward4 which as shown above has only 5 polling units. The legal effect here too is that since his evidenceis similarly ward specific i.e Ward 4, the pleadings with respect to the allegations in the remaining 4wards with 19 units are deemed as abandoned. We need not cite any authority again. On the otherhand, the Respondents called two witnesses RW 8 and RW9 who were voters and voted in units 01and 02 of Ward 4 in Boripe and who testified to the orderly conduct of elections in these units bereftof the allegations made by Petitioners as they were present at the units all through the period of theelection. Their evidence was not in any way or manner controverted under cross examination and asalready alluded to, no oral evidence was led by petitioners with respect to these units.Now as stated earlier, this witness PW 31 served as Ward Supervisor for Ward 4 and coordinated theactivities of P.D.P agents in the said Ward. He stated in evidence that the information disclosed in hiswitness deposition is based on the reports he received from his agents who were in-charge of theseunits and from his personal observation. Now these reports which at least formed part if not all of thebasis for his deposition were not produced before the court. The agents who were in-charge of theseunits PW31 said are all alive except one and none was produced in court to give evidence of whatactually transpired in their units. It is perhaps necessary to make the position of the law clear here that the best evidence of whathappened at a polling unit during an election is the evidence of the polling agent who was physicallypresent at the polling unit and who saw what transpired there at the election. A recurrent feature ofthe case of the petitioners in almost all the local governments including Boripe is that the agents whowere physically present at the polling units and who are truly in the best position to testify as to whattranspired at their respective units during the elections were not called to testify. This failure to callsuch polling agents will clearly be detrimental to the petitioners case and allows or provides a basisfor the tribunal to apply the presumption under Section 167(d) of the Evidence Act that had thepolling agents been called, their evidence would have been detrimental to the Petitioners case andhence their reason for not allowing them to testify. See Agballah V.Sulliman Chime(2009)1 N.W.L.R(Pt.1122)373 at 433; Gundiri V.Nyako (supra).There is also nothing in the evidence of PW31 indicating what part of the evidence he witnessed and

what was based on the reports which clearly makes his evidence unreliable particularly when undercross-examination, he admitted that it was not possible for him to be at each of the 5 units under hisjurisdiction from the commencement of the voting on election date to the end in each of these units.The law which we have already alluded to is that probative value cannot be accorded to such evidence.We also note that the evidence of PW 31 with respect to arbitrary allocation of votes to 1st and 2nd

Respondents by INEC officials, the alleged refusal to allow eligible voters of P.D.P to vote by membersof A.P.C and the alleged inducement of voters with money and other material things are clearly atvariance with the pleaded facts at Page 33 of the petition with respect to Isale Oyo Ward 04. Theevidence of PW31 in that respect bears no relevance to any complaint in the units in Ward 4 wherehe acted as supervisor; the effect of this is that the evidence of PW31 in that regard goes to no issue.The law as stated earlier is settled that evidence led on any matter not pleaded goes to no issue.See Amadi V. Nwosu (Supra).Even if out of caution, we evaluate his evidence that votes were just credited to the 1st and2ndRespondents by INEC officials, there was absolutely nothing beyond these empty viva vocetestimony to demonstrate before the tribunal how this was done and by whom and how it affected theresults in units 001, 002, 003, and 005. In any event under cross-examination PW31 stated that hedoes not work with INEC and never saw the voters register before the election and so does not knowthe actual number of registered voters. He also added that he cannot establish that the result sheetreflected the correct number of registered voters. If that is the position of PW31, one then wondersthe basis for his assertion that the total number of voters on the register exceeded 750 in units 001and 005.Further while in one breath, he asserts that votes credited to 1st and 2nd Respondents were awarded(paragraph 4(1) of his deposition), in another breath, he stated that entries in Forms EC8A indeedcontained the outcome of the elections at units 001, 002, 003 and 005 but that they were not stamped(see paragraph 4(ii) of his deposition). These clearly inconsistent and contrary assertions by PW31,in our opinion undermine the credibility and veracity of his narrative. We have also looked at theForms EC8A for units 001, 002, 003 and 005 i.e Exhibits 13, 13C, 13D and 13E and they were allduly stamped.Similarly this witness did not give a name to any one member or members of P.D.P who were eligiblevoters and who were allegedly not allowed to vote and by whom. Indeed nobody was produced toprove the assertion that he was eligible but was not allowed to vote or that he voted because he wasinduced with money or other material things. We therefore agree with the submissions of learnedcounsel for the 3rd Respondent that the failure to called any of the affected members allows for theapplication of the presumption under Section 167(d) of the Evidence Act 2011. The consequenceof this is that the petitioners have failed to prove these allegations.The bottom line here is that with respect to Boripe Local Government, the evidence of PW31 isabsolutely not cogent enough to support or sustain the allegations of electoral malpractices, and asa result we find no reason to disturb the result declared with respect to that local Government Area.We so hold.

4. EDE NORTH LOCAL GOVERNMENT AREA.At pages 34 to 48 paragraph 42 of the petition, the Petitioners made extensive allegations of electoralmalpractices in respect of 11 Wards in this Local Government as follows: Olaba/Atapora Ward 1(Polling Units 1 to 10), Abogunde/Sagba Ward 02 (Polling Units 1 to 22) Ologun/Agbakin Ward 03(Polling Units 1 to 12), Olusokun Ward 04 (Polling Units 1 to 10), Alusekere Ward 05 (Polling Units 1to 10), Sabo/Agbongbe 1 Ward 06 (Polling Units 1 to 11), Sabo/Agbongbe 11 Ward 07 (Polling Units1 to 11), Isibo/Buari-Isola Ward 08 (Polling Units 001 to 003), Apaso Ward 09 (Polling Units 1 to 10),Asunmo Ward 10 (Polling Units 001, 003 and 004) and Bara Ejemu Ward 11 (Polling Units 001, 002,003, 004, 006 and 007). The net total of the units challenged in this Local Government are 117 units.In proof of these allegations in all these wards and units, the petitioners called only one witnessPW35. His evidence is particularly interesting because of its trajectory. In his 9 paragraphs witnessdeposition, he stated that he is a member of P.D.P and served as the Local Government CollationAgent of the party in Ede North.He then went ahead to beautifully state how he got the information which formed the basis of hisentire deposition and this can be summarized succinctly as follows: His deposition was made entirelyfrom reports of P.D.P Ward Collation Agents in the Local Government who were directly responsibleto him who in-turn got their information from polling unit agents of the party stationed in each of theunits who monitored the elections and were responsible to the ward collation agents. This chain ofnarrative and the different levels of hearsay evidence without any doubt formed the basis of theevidence of PW35 and cannot be admissible in law to prove the contents of the allegations made inthe petition. This witness candidly conceded under cross-examination that what he put in his depositionis what the polling agents told his collation agents who now reported to him. His deposition withrespect to the conduct of elections in Ede North is clearly not with respect to what he personallywitnessed at the election and accordingly amounts to hearsay evidence and worthless in so far asthey do not relate to facts in issue which proceed from his personal knowledge. As we earlier held,we cannot ascribe any probative value to such evidence. See Jolayemi V. Alaoye (supra), AwuseV. Odili (supra).We are here again confronted with a situation where we have before us an elaborate pleading withno scintilla of evidence to support same. It follows that facts pleaded in respect of Ede North mustnecessarily be discountenanced as no evidence has been led to prove any fact therein. See ArabambiV. Advance Beverages Ind. Ltd (Supra).It may be necessary to state that the Respondents called three witnesses for this local Government,RW 6, RW 7 and RW 18 who were ordinary voters who voted in their respective units and similarlytestified directly as to events that transpired in their presence and alluded to the peaceful conduct ofthe elections free of the allegations made by petitioners in their units. We consider it proper at thisstage to note that in the course of cross examining RW 8 and RW18 and indeed some other witnessesof Respondents, the Petitioners Learned Counsel referred them to certain exhibits like the FormsEC8As, The Voters Registers etc, used in the conduct of the election and certain entries containedtherein for purpose of showing some discrepancies as they appeared in the documents and perhapsto even question the credibility of such witnesses.The question to ask in this instance is whether such venture is of any real value to the case ofPetitioners? We think not, and this is so because in most of the cases the witnesses were not theauthors of these documents and therefore the value of their answers in relation to such documentswould at best be minimal, if any at all. In some other instances, the witnesses were shown the Votersregister, their picture on it and then questioned on either their date of birth or occupation at the timeof the registration as appeared on the register without really showing how these acts affected theresults of the election in the form EC8A for such units. Except in very few instances were some of theRespondents witnesses were Polling Agents who claimed to have signed the Polling unit results-Forms EC8As, the exercise undertaken by the Petitioners Learned Counsel ,in this respect, has notin our considered view added any serious value to the case of Petitioners.As a result, we find no reason whatsoever to disturb the results declared with respect to Ede NorthLocal Government. We so hold.

5. EDE SOUTH LOCAL GOVERNMENT AREA.Here too, the petitioners made various allegations of Electoral malpractices at paragraph 43, pages48 to 56 of the petition with respect to 10 wards as follows: Babanla/Agate Ward 01 (Polling Units001 to 007), Kuye Ward 02 (Polling Units 001 to 003), Jagun/Jagun Ward 03 (Polling Units 001, 003to 011), Alajue 1 Ward 04 (Polling Units 001 to 011), Alajue II Ward 05 (Polling Units 001, 002, 004,006, 007 and 008), Olodan Ward 06 (Polling Units 001, 002 and 005), Babasanya Ward 07 (PollingUnits 002 and 003), Sekona Ward 08 (Polling Units 001, 003 and 004), Oloki/Akoda Ward 09 (PollingUnits 001 and 008) and Logun Ward 10 (Polling Units 001, 002, 004 to 008).The cumulative total of the units challenged are 47 units in this Local Government.In proof of these extensive allegations, the Petitioners here too called only one witness, PW30 who

served as a Ward Supervisory/Collation Agent for his party in Kuye Ward 02 of Ede South LocalGovernment which has only 3 polling units. As with most of the Local Governments treated, hisevidence is similarly ward specific i.e ward 2. The legal effect here too is that the allegations withrespect to the 44 other units of the remaining 9 wards are deemed as abandoned. The Respondentson their part called RW 24 who served as the party agent for unit 4 of Ward 2. He testified to theorderly conduct of elections in his unit free of the allegations made by petitioners and that at end ofthe election ,he duly signed Exhibit 27C ,the form EC8A and that same was also signed by the agentof petitioners and then duly stamped by INEC. His direct evidence on what he saw at his unit was notshaken under cross examination.For the Petitioners as alluded to already, PW30 served as Ward Supervisor/Ward Collating Agentand in his evidence he stated that his party had polling agents in the units of his ward who reportedwhat was happening in their respective units to him. This in law is hearsay evidence and inadmissible.He also added that he visited some of the units and that those he could not visit physically, he calledthe agents on phone to get the situation report.Now we note also that going through his deposition, there is absolutely no direction or indication ofthe aspect of the evidence he witnessed personally and that which was transmitted to him by theagents. There is also nothing in the evidence showing which of the units he visited physically andthose he could not go to as alleged. In law as we have severally repeated in this judgment, this typeof testimony clearly lacks credibility and ought to be rejected. See Gundiri V. Nyako (Supra) 211 at240C.We also note that his evidence with respect to distribution of food, drinks and money to influencevoters are clearly with respect to matters not pleaded at page 42 of the petition with respect to KuyeWard 02 and are accordingly discountenanced.Under cross-examination, PW30 conceded that he signed the summary of result of his unit Exhibit207 and that his party agents all signed the Forms EC8A for the four (4) units in his ward vide Exhibit192(pages 8 to 11). As stated earlier, the implication or effect of signing these result sheets voluntarilyby PW30 and the party agents is to authenticate or validate the results so declared and they cannotbe heard to now turn around to deny the contents of the results sheet. See Gundiri V. Nyako(supra).Also under cross-examination, when shown the summary of the result of his unit Exhibit 207, whichhe duly signed he could not support the allegation of super-imposition; voters exceeding 750 or anyevidence of over-voting or indeed demonstrate or support the evidence he led. Indeed when askedwhat super-imposition meant under cross-examination, his response that it meant “that ourcomplaints were not attended to…” clearly shows that this witness is at best either confused ordoes not know what he is saying or at worst that he did not prepare the contents of his depositiondespite his assertion that he wrote same.As is the case with some of the witnesses earlier evaluated, the evidence of this witness completelylacks probative value and clearly did not meet the threshold of proof required for the serious allegationsmade in Ede South Local Government.In totality, our finding here is that the Petitioners have again palpably failed to establish the variousallegations in this Local Government with respect to the polling units complained of.Consequently, this tribunal sees no justifiable reason to interfere with the result of the GovernorshipElection as declared by the 3rd Respondent with respect to Ede South Local Government. We sohold.

6. EJIGBO LOCAL GOVERNMENTThere are 11 wards in Ejigbo Local Government Area. The Petitioners are however querying theresults in only 9 wards of this Local Government. They are not disputing the results in wards 7 and8. The general complaints in all the units in the wards under contention is that the results on formsEC 8A and EC 8B in all the polling units are irreconcilable and unreliable. That votes were arbitrarilyallocated to the 1st and 2nd Respondents by the 3rd Respondents. That in some polling units therewas over voting. They allege intimidation, molestation and harassment of their agents. That therewas no proper accreditation in the polling units. That the votes credited to the 2nd Respondent werenot earned and should be deducted from the votes of the 1st and 2nd Respondents. In proof of theseallegations, they have called 3 witnesses. Ajayi Jacob Ige, Raji Kayode and Adebayo Adekoya whotestified as PW26 – PW28 respectively. Their written depositions are respectively found in Vol.II ofthe petition pages 395 – 397, 418 – 419 and 454 – 455. PW26 was the 2nd Petitioner’s ward supervisorfor Elejigbo “D’/Ejemu ward 04, PW27 was the ward supervisor for Elejigbo/Ayegbogbo ward 5, whilePW28 was the polling agent at Merin Mefon, Ola unit 001 Ola/Aye/Agurodo, ward 06. These witnesseshave testified to only what happened in their respective wards. There being no evidence as regardsthe other 6 wards in the Local Government, also in contention we hold that the pleadings in respecttherefore have been abandoned. We shall therefore consider whether the Petitioners have provedtheir allegations in the 3 wards for which evidence has been called.

PW26 identified Exhibit 193, as containing the results he received from his agents at thevarious polling units after the election. The results from this ward are contained on pages 21 – 28 ofExhibit 193. That is 8 results from the 8 polling units in the ward. Apart from his general complaintthat the entries on forms EC 8A and EC 8B in this ward are irreconcilable and unreliable, votes werearbitrarily allocated to 1st and 2nd Respondents, intimidation and harassment of their agent, no properaccreditation and over voting, his specific allegation as regards units 001, 002 and 007 is that formsEC 8A in these units were not stamped. We do not see how this has anything to do with the conductof the election. At magistrate Court polling unit 003, and Idi-Oro unit 004, he alleges inconsistenciesin the collation of results and recording on form EC 8A. No such inconsistencies have however beenpointed out in his deposition. Further that in units 004, and 006, the total number of ballot papersused exceeded the total number of ballot papers issued to the polling unit. When confronted withpage 24 of Exhibit 193, form EC 8A for unit 004, it became apparent that the total number of ballotpaper used did not exceed the total number of ballot papers issued, as testified by him. He was alsoshown page 26 of Exhibit 193 – form EC 8A for unit 006. It did not also confirm his evidence that thetotal ballot papers used exceeded the number issued. While he says his name is on Exhibit 168B3– form EC 8B, he denies the signature thereon. Having not proved the malpractices in this ward, theassertion of PW26 that these acts affected the out-come of the results in his ward cannot be correct.

PW27 testified that there was over voting in the polling units in the ward. Asked what hemeans by over-voting, he said it is where the number of people who voted exceeded the number ofpeople accredited. He was then shown Exhibit 168B4 – form EC 8B for the unit, to point out whereover voting occurred. His response – “I cannot see in this document where the number of accreditedvoters exceeded the votes cast.” No document has been placed before the Tribunal showing thatover-voting occurred in that ward. His evidence in paragraph 5h is that at Asalu/Akinde polling unit003, the summation of the total number of ballot papers used and unused is less than the number ofballot papers issued for the unit. We do not see how this has occasioned any disadvantage to thePetitioners. The issue would have made sense if the sum total of used and unused ballot papersexceeded the number given to the unit. PW27 has also not shown any malpractices which haveaffected the overall results in his ward.

PW28 is from ward 6 of the Local Government and he was a polling agent for the Petitioners.While in his deposition he said he was a polling agent at unit 01, under cross-examination he said hewas the polling agent at unit 4 and not unit 01. According to him there was multiple voting, mutilationof ballot papers and voting by proxy. He said despite these irregularities the 2nd Petitioner won in hisunit, but the result was cancelled. The result from this unit in form EC 8A is also not before theTribunal. The fact of the cancellation of the results from this unit is confirmed by Exhibit 168B5 –form EC 8B. While the evidence of this witness from this unit is clearly not material to the Petitionersas it has not added any value to their case, it however confirms the fact that the 3rd Respondent wasvery diligent in its assignment, and where ever it perceived that election was marred by whateverreason, it cancelled such results.7. IFELODUN LOCAL GOVERNMENTThis Local Government has 9 wards and the Petitioners have pleaded malpractices in the conduct of

the election in all the wards in the Local Government. Five witnesses have testified in proof of thesealleged malpractices in these wards. These are PW13, PW14, PW16, PW17 and PW29. PW13 –Ganiyu Bashir Akani was the ward collation agent of the 2nd Petitioner at ward 1 collation centre.PW14 – Fashola Adebayo Mukaila was the 2nd Petitioner’s ward collation agent at ward 03. PW16,Adebisi Gbolagabe was the Local Government Collation agent for the Local Government . PW17 –Onedokun Wasil Olaitan was the collation agent at ward 04, while PW29 – Lawal Falilu was thepolling agent at Ojaoke/Ojaoke unit 004 of ward 1.The sworn deposition of PW13 is on pages 1539 – 1541 of Vol.IV of the petition. His evidence isbased on the information he gathered personally and from the reports he received from the agents inthe various polling units in the ward. His evidence is that election in the polling units was conductedimproperly by the 3rd Respondent and this affected the outcome of the election. While he has testifiedthat there was intimidation and harassment of voters especially PDP supporters’ he did not mentionanybody who was so harassed, intimidated and prevented from voting. Nobody has also testifiedfrom that ward as having been harassed, intimidated and prevented from voting. He has also notmentioned any eligible voter from his ward that was prevented from voting as testified by him. Nounqualified person who was allowed to vote has also been mentioned by him. Under cross-examinationhe said he does not know the unqualified voters as they came from Lagos. Asked how he knew thatthey came from Lagos, he said they were speaking “Lagos”. He testified that the entries on forms EC8A and EC 8B from the polling units in this ward are irreconcilable and unreliable. Exhibit 194 pages1 – 5 are forms EC 8A for the ward while Exhibit 169 is form EC 8B from the ward. He confirmed thatthese are the forms EC 8A he received from his agents at the conclusion of the election. While thereare 8 units in the ward and he testified that all the agents in the 8 units submitted their results to him,no explanation has been given why only 5 out of the 8 are before the Tribunal. He also confirmedthat all the agents signed the results. As at the date he made his deposition on 28/8/14 he hadreceived the results and reports from all the agents within the ward, he was therefore in a position tostate the actual number of legitimate votes the 2nd Respondent got from the ward. It is therefore notacceptable for him to simply allege that votes were arbitrarily allocated to the 1st and 2nd Respondentswithout given details. He testified that there were cases of over-voting in this ward. Under cross-examination, he said he cannot remember cases of over-voting. Over voting is a matter whichshould be apparent on the documents relied upon by the Petitioners. He said multiple voting isapparent in unit 3 of Exhibit 194. Clearly multiple voting cannot be apparent on a result form likeExhibit 194. He testified that many people voted by proxy. It is however not his evidence that suchpersons if any, only voted for 1st and 2nd Respondents. According to him, at Okeiroko ST/Baptist DaySchool, Ikirun, polling unit 001 there are discrepancies in the entries made on form EC 8A. Interestinglythis was where he voted. Yet no details of such discrepancies have been pointed out in his statement.As stated earlier, he had access to this form EC 8A as at the time he made his statement. And nonehas been pointed out to the Tribunal.PW29 was the polling agent at unit 004 of this ward – that is Ajaoke/Ajaoke unit 004. He mentionedin paragraphs 5 and 15 of his deposition some people as those who were freely campaigning andsharing money to voters, and also intimidating PDP voters on election day. Asked if he made a reportto that effect to the police, his response was in the negative. These are offences created under theElectoral Act and proof must be beyond reasonable doubt. No witness has testified before theTribunal that he was induced in any way to vote for a candidate other than that of his/her choice.PW29 testified that he was prevented by INEC Officials from witnessing the accreditation exerciseinsisting that he brings a letter of introduction from INEC. That he reported this development to hisward collation officer who could not however resolve the matter. PW13 who was his ward collationagent did not however testify of any such incident having been reported to him. While PW29 testifiedthat he was prevented from witnessing the counting process, he admits, under cross-examination tosigning form EC 8A which is on page 3 of Exhibit 194. He did not say he was forced or threatened tosign the result. He did not also point out the discrepancies he said there are in the scores in his unit.The evidence of PW14 is found on pages 1569 – 1571 of Vol.IV of the petition. He was the collationagent at ward 03 ie Owode Ikirun ward 003. He testified that he received the results from all theagents in the 9 polling units within the ward and he analyzed all these results before he made hisstatement. Yet he did not give specific details of where there was over voting, multiple voting, votingby proxy, intimidation, arbitral allocation of votes, disenfranchisement and voting by ineligible votersand so on as testified to by him. His complaints as regards specific units relate mostly to nonestamping of form EC 8A. He also testified to discrepancies on entries in form EC 8A in units 002 and007. The forms EC 8A from this ward are contained on pages 13 – 18 of Exhibit 194. That is only 6out of the 9 results are before the Tribunal. These are for units 001, 002, 006, 007, 008 and 009.Under cross-examination he was given these forms EC 8A to point out the alleged discrepancies andhis response was “I cannot see clear to point out the irreconcilable differences in Exhibit 194. I willneed a calculator, glasses and biro to show the discrepancies in the documents.” These are thesame results he said he analyzed before making his statement.PW16 was the Local Government collation agent for the 2nd Petitioner on the election day. Hisevidence is found in Vol.IV pages 1533 – 1538. His evidence is based on personal knowledge andfrom reports given to him by the agents from the wards and at the polling units. He identified Exhibit224 as the result given to him by the agents. He also confirms signing it. He voted at unit 006 ofward 01 on the day of the election. He said when he got to the venue he was asked to check hisname on the list pasted on the wall. He found his name on the list and so informed INEC Officialsand they ticked his name. This is the process of accreditation embarked upon that day as testified toby most of Petitioners’ witnesses. This is contrary to his evidence and that of PW13, who was theward agent, that there was no proper accreditation in this ward. He has chronicled the allegedmalpractices in the various wards within the Local Government. Most of these relate to non stampingof form EC 8A, discrepancies in the entries in form EC 8A, number of voters exceeding 750,irreconcilable and mutilation of figures. He said on the election day, APC members and leaders weremoving freely from one polling unit to another campaigning and distributing food, drinks and moneyto voters on the queue and urging them to vote for APC. It is also his evidence that canopies weremounted in all the polling units in the ward by APC members as a ploy to induce voters. ThatPetitioners’ agents were harassed and intimidated on the instruction of the 1st and 2nd Respondents.That all their complaints to the security officers were not acted upon. He said although the 2nd

Petitioner won the election in 4 out of the 12 wards in the Local Government, he still has problemswith all the wards in the Local Government. Of all the 105 polling units in this Local Government, hesaid he witnessed the voting and counting only in his unit where he voted. Under cross-examination,his testimony is that –

“For the accreditation, voting and counting in other units, I was told by the supervisors through handsets.”

No such reports are before the Tribunal. His evidence concerning these issues in the various pollingunits in the wards therefore goes to no issue as they amount to inadmissible hearsay evidence. Hewas given Exhibit 209, forms EC 8B for the Local Government and asked to point out the discrepancies.His response was –

“I cannot find any discrepancy on Exhibit 209, but there are things on it which I do notunderstand.”

He also admits signing Exhibit 224 – form EC 8C for the Local Government. He said Exhibit 224contains the results he received from the polling agents. It is not his evidence that he was forced tosign Exhibit 224, he cannot therefore seek to controvert the contents.

The evidence of PW17 is on pages 1584 – 1586 of Vol.IV of the petition. He was the 2nd

Petitioner’s collation agent in ward 04. Pages 19 – 25 of Exhibit 194 are copies of form EC 8A hereceived from the agents at the polling units in the ward after the election. All were duly signed by theagents. He testified that there was no proper accreditation. This fact did not however prevent himfrom voting. Although form EC 8B from this ward was signed, he said he was not the person thatsigned it. According to him he saw the form when he went to the collation centre at 10.30pm on thefloor, already signed, and he picked it up. He admits that voting points were created in some units.

After a careful review of the totality of the evidence of the 5 witnesses called from this Local

Government, we do not find any evidence of non compliance with the relevant Electoral Law and themalpractices as alleged by the Petitioners, were clearly not established.

8. ILESHA EAST LOCAL GOVERNMENT.The Petitioners are complaining about irregularities in all the units of the 11 wards of this Local

Government. They have however called only one witness from this Local Government – JosephTemitope who testified as PW39. His sworn deposition is found on pages 1259 – 1261 of Vol.IV of thepetition. He was the ward supervisor/ward collation agent for the 2nd Petitioner at Ijoka ward 06 onthe day of the election. Clearly he can only testify to what happened in his ward. There being noevidence in support of the pleading regarding the remaining 10 wards, they are deemed abandoned.We so hold. PW39, as a ward supervisor said he did not stay long at any one unit within the ward ashe was going round attending to complaints from the agents in the unit. At the end of the election hecollected the results from the agents. This is Exhibit 195 before the Tribunal. There are 8 units in thisward 06.

The complaints in this ward, as others in other Local Government Areas is that entries madein forms EC 8A and EC 8B from the polling units are irreconcilable and unreliable. Eligible voters wereunjustifiably disenfranchised while ineligible persons were allowed to vote in the polling units in theward. Votes were arbitrarily allocated to the 1st and 2nd Respondents by agents of the 3rd Respondent.That there were cases of over-voting in some polling units. There was intimidation, harassment andmolestation of Petitioners’ supporters by agents and supporters of the 1st and 2nd Respondents whilethe security agencies failed to do anything. The witness has in paragraph 7 of his sworn testimonylisted the irregularities he discovered “from the reports and election results” he received from thePDP polling agents in his ward. Clearly therefore these alleged irregularities were not personallyobserved by him. No agent from any of the unit has come to testify before the Tribunal. Meanwhilehis evidence is that all of them are alive. While he asserts that all the results in the various forms EC8A are wrongly entered, he says he cannot produce the authentic result. He could not mention thenames of those unregistered voters who voted, as according to him, he does not know them. He didnot also examine the voters’ register as to know the registered voters. He could not also, undercross-examination when asked to do so, point out any irreconcilable and conflicting entries in Exhibit195. The reason according to him is that “the entries thereon are not clear.” It is to be stated thatthese are the same results which he received from his agents and which formed the basis of histestimony. They suddenly became unclear. On the day of the election, he saw his name on the listpasted on the wall and he voted. He further testified under cross-examination that some PDPsupporters were prevented from voting. He says he knows them very well as they all live in the samearea and they are still alive. He did not mention any such person in his deposition. No such personhas also testified before us. He testified that the total number of rejected votes on form EC 8B for theward were arbitrarily filled without regard to the actual figures. Asked under cross-examination tostate the actual figure, he said he does not know “as it’s a long time ago and I am not a computer.”Why did he not state the numbers in his statement which was made not long after the election and theforms were still at his disposal? He was given Exhibits 195 and 210 which are forms EC 8A and EC8B respectively for the Local Government and asked to point out the cases of over voting. He wasunable to do so. Clearly the evidence of this witness has not proved any of the alleged irregularitiesin this Local Government.

9. ILESHA WEST LOCAL GOVERNMENT.ILESHA WEST Local Government Area has 10 wards. The Petitioners are challenging the resultsreturned from all the polling units in the 10 wards. They have pleaded the alleged irregularities in allthe 10 wards. They have however called only one witness from this Local Government. That is AjalaAdewale Oluseye who testified as PW42. His sworn testimony is on pages 1380 – 1382 of Vol.IV ofthe petition. He was the ward supervisor/ward collation agent for ward 09 – Ereja ward. There are 10units in this ward. There being no evidence in respect of the remaining 9 wards in this LocalGovernment, we hold that the complaints therein have been abandoned by the Petitioners. The onlyresult from this ward is that from unit 002 which is page 17 of Exhibit 196. It has been signed by theagent of the Petitioners. The complaint as regards this ward in the petition is that at unit 002 – thenumber of registered voters exceeded 750 as prescribed by law. That forms EC 8A for units 003,004, 005, and 008 were not stamped as required by law. These forms are however not before theTribunal although the witness said he collected them from the agents. The only complaint from thisward before the Tribunal therefore is that concerning unit 002. PW42 testified in paragraph 6a of hissworn deposition that the number of registered voters at this unit exceeded 750. When asked to lookat page 17 of Exhibit 196, he said the number of voters recorded therein is 276. This is contrary to hisevidence that it exceeded 750. In paragraph 6c he testified that the 1127 votes assigned to the 1st

and 2nd Respondents from the ward were not earned but arbitrarily awarded. When asked to statethe correct votes scored by these Respondents from the ward he said, “I cannot state the correctscores for 1st and 2nd Respondent because I was chased away and I ran for my life.” Upon furthercross-examination he said he used the form EC 8B to write his statement. The said form EC 8B ishowever not amongst the 4 sheets of forms EC 8B from this Local Government which are before theTribunal as Exhibit 211. In this Local Government too, the Petitioners have not proved any irregularitiesor malpractices as alleged.

10. IREPODUN LOCAL GOVERNMENT.In Irepodun Local Government Area, there are 11 wards. Here too the Petitioners are challenging theresults from all the polling units in the wards. In proof of the alleged malpractices and irregularitiesthey have called two witnesses from this Local Government. These are Jimoh Afeez Akinkunmi andAzeez Muftau Agboola who testified as PW24 and PW25 respectively. PW24, whose testimony is onpages 81 – 82 of Vol.II of the petition was the ward supervisor/collation agent of the 2nd Petitioner forward 6, while PW25 says he was the collation officer of the 2nd Petitioner at the Local Governmentcollation centre. Ward 06 is Bara ‘B’ and not Bara ‘A’ as pleaded on page 101 of the petition. This factis confirmed by item 6 on page 187 of Exhibit 187 – a directory of polling units in the ward.The complaints in this ward as per the pleading on pages 101 – 102 of the petition are –(a) in Olobu Market unit 001 the number of registered voters as contained in form EC 8A exceeds 750. The form EC 8A is not stamped and the mutilated entries thereon are not counter-signed.(b) at Baba Odunayo Unit 005 form EC 8A was not stamped and the entries thereon are irreconcilable.(c) at Akinru I unit 006 and Olanipekun Unit 008 the forms EC 8A are unstamped.(d) entries on form EC 8A for Imam Arohun unit 011 are inaccurate and irreconcilable.PW24 says after the election he collected results of 11 units from his agents. There are howeverresults from only 5 units tendered in evidence as Exhibit 197 pages 42 – 46. The sworn testimony ofthis witness is not different from the above pleading. He said he voted on the election day in unit 001.His evidence in chief is that the registered voters in his unit exceeded 750. Under cross-examinationhe says a voting point was created in his unit because the number of registered voters exceeded 300.He was given Exhibit 197 and asked to show the Tribunal the inaccurate and irreconcilable entriestherein as testified to by him. His response was –

“in unit 11 – Imam Arohun, the total votes recorded is 270, but by my calculation it is supposedto be 275.”

He did not state the basis for his calculation. What he has stated however is that he was not at thisunit when the votes were counted. He is therefore not in a position to challenge the results asreflected in form EC 8A.

The evidence in chief of PW25 is found on pages 91 – 93 of Vol.II of the petition. That hisduties as the Local Government collation officer included the receipt of complaints from the wardscollation supervisors concerning the electoral forms and the entries made therein and bringing such

complaints to the attention of the agents of the 3rd Respondent. That some of the complaints hereceived were inconsistencies in the electoral forms. That the votes credited to the 1st and 2nd

Respondents from all the polling units within the Local Government were obtained in a vitiatingmanner and circumstances. That in some polling units the votes cast exceeded the number ofaccredited voters and the number of voters in the register exceeding 750. He also complained thatthere was distribution of money, food and drinks to the security agents, electorates and INEC Officials.That he brought these complaints to the attention of the 3rd Respondent but he did nothing. Hementioned some of the affected wards in the said Local Government, namely Olubu ‘A’ ward 01;Olubu ‘B’ ward 02, Olubu ‘C’ ward 03 and Olubu ‘D’ ward 04. Under cross-examination, he said hevisited only 4 units on the day of election. There are about 127 units in the Local Government. Hisevidence is therefore basically what was told to him by his ward agents who in turn got such informationfrom the polling agents. He confirmed that at the end of the election, the ward agents submittedwritten reports to him, which he gave to his lawyer. Out of the 11 wards in the Local Government, hehas highlighted only 4. He admits signing Exhibit 225 which is form EC 8C for the Local Government.He also admits that the entries in Exhibit 225 are based on the entries in Exhibit 212 – pages 1 – 10,form EC 8B for the Local Government. He confirms under cross-examination that his evidence thatvotes credited to 1st and 2nd Respondents in all the polling units are unlawful votes obtained in avitiating manner is based on information given to him by his agents. Asked to name the electoratesthat were given food and money in his unit where he voted on the day of the election (unit 005 ofward 05), he says he does not know them.

RW13, RW14, RW15, RW17 and RW19 testified at the instance of the 1st Respondent. Theywere all polling agents of the 1st and 2nd Respondents in their respective units in the ward. RW13 –Akinola Sukurat Bolanle was the polling agent at unit 7 ward 2. RW14 - Ologunde Ademola was thepolling agent at unit 12 ward 2, while RW15 – Rasheed Mukaila was the polling agent at unit 3 ward2. RW17 – Oladeji Mutiu was the agent at unit 002 of ward 1 and RW19 – Atanda Isaac was thepolling agent at Open Space Olotin unit 001 of ward 1. All these agents testified that they were attheir respective polling units from 7am till when election was concluded. That accreditation commencedat about 8am and all the eligible voters were accredited, and all those who were accredited andwaited to vote, were allowed to vote. After voting, the ballot papers were sorted out, counted and theresults announced openly. The results were then entered in form EC 8A. It was stamped andsigned by the Presiding Officer and each party agent given a copy. They all testified under cross-examination by counsel to the Petitioners that their activities on the day of election were restricted totheir polling units. They all testified that election went on smoothly in their respective units and therewas no protest from any agent after the results were announced. That all the agents signed on theoriginal copy of form EC 8A. The result for unit 001 of ward 1 is contained on page 1 of Exhibit 197(duplicate copy of form EC 8A). The certified true copy of the original copy of this result is on page1 of Exhibit 74. Under cross-examination of RW19, Petitioners counsel made a heavy weather onsome cancellations found on these Exhibits. We note that item 8 and s/no.15 on Exhibit 74 werecancelled. We also note that these cancellations were signed. The number of valid votes waschanged from 135 to 127. The initial score for PDP was stated to be zero but changed to twentyseven. We find the evidence of these polling agents who remained at their polling units from beginningto conclusion of election, as to the conduct of the election, more reliable than the testimony of theward agents/supervisors and Local Government collation agents who relied on information given tothem by their agents at the polling units.

We do not find the alleged malpractices in the election conducted in this Local Governmenton 9/8/14 proved.

11. IREWOLE LOCAL GOVERNMENT.In Irewole, the Petitioners in their pleadings alleged that there are 11 wards and that the election inall the polling units of the 11 wards was marred by substantial non compliance with the Provisions ofthe Electoral Act 2010 (as amended) and the Manual for Election Officials 2014 both of which wereobserved more in breach by the 3rd Respondent in the conduct of the election. The non compliancewas not only substantial but substantially affected the outcome of the Election in all the polling unitsand the wards challenged such that the results returned there from do not represent the product ofany proper election and ought to be disregarded or cancelled. The Petitioners further alleged thatthe election in all the wards was characterized by Electoral malpractices and that there was intimidationand harassment of voters especially the supporters of the Petitioners. That eligible voters were trulyinduced with money by members and supporters of the 1st and 2nd Respondents. The Petitionersclaimed that in all the units, the entries in forms EC 8A and EC 8B of the wards are irreconcilable andunreliable. The Petitioners further alleged that eligible voters were unjustifiably disenfranchisedwhile ineligible persons were allowed to vote in the polling units in the ward. They complained thatin polling unit 003, the result of the election was not recorded as required by law and Form EC 8A forthe unit was not stamped. There were general allegations of non-recording of results in variousunits across the Local Government. In proof of all the above, however, the Petitioners called threewitnesses, they are the PW18, PW19, and PW20 who were supervisors in wards 1, 5, and 6respectively. The legal implication of this is that the Petitioners have abandoned their claim in theother wards and units. The PW18 who adopted his statement on oath as his evidence in this petitionadmitted signing Exhibit 213, the collated result of ward 1. However in his adopted statement atpages 492 - 494 vol.II of the petition, the PW18 stated that the result of the election at St. JohnPrimary School polling unit 001 was not correctly recorded and that the result sheet for that unit wasnot also stamped. In paragraph 3h, the PW18 also stated that the total number of valid votesrecorded in the result sheet was more than the total number of votes cast in unit 002. That the resultforms for that unit were not stamped. Paragraphs 3i – p of the PW18 statement under referencecomplained of non stamping of result sheets and improper recording of valid votes cast. It will bedifficult to believe and accept the testimony of the PW18 on non stamping of the result sheets andimproper recording of result in the face of Exhibits 85 to 85A – J. Exhibits 85 to 85A –J bear thestamp of Independent Electoral Commission on the face of the documents and there is nothing toindicate improper recording of results. There is also nothing to show arbitrary allocation of votes infavour of the 1st and 2nd Respondents. If there was any, it was incumbent on the PW18 to demonstratesame before the Tribunal. It is very important for the PW18 to have shown before the Tribunal sucharbitrary and improper recording of votes cast. This he failed to do.Though the allegations of non stamping and signing of the results by INEC and party agentsrespectively are very serious which could result in the nullification of election result, as was decidedin the case of Ohuabunwa v. Duru (2009) All FWLR, part 450, 651 at 656 ratio 11, it must beproved by credible evidence before the Tribunal by the Petitioners as there is a presumption ofcorrectness of results declared by INEC until it is rebutted.

On the allegations of harassment and intimidation as contained in the deposition of thePW18, the law is clear that it has to be proved beyond reasonable doubt as they are like othercriminal offences, thus the Court of Appeal Enugu Division in the case of Ogu v. Ekweremadu(2005) All FWLR part 260 page 1, at page 4 ratio 3 held amongst other things as follows:-“Under a system of civil law, the burden is on the party alleging the commission of an offence toprove the allegation, by the same token, the standard of proof of election offences like other offencesmust be beyond reasonable doubt”The cases of Ezike v. Ezeugwu (1992) 4 NWLR (Pt.236, 462 and Etuk v. Isemin (1992) NWLR(Pt.236) 402 were cited with approval. Beyond the above, such allegations of intimidation andharassment must also be traced to the Respondents or the Respondents’ agents. In the instantcase all the PW18 said was that eligible voters were harassed and intimidated by supporters of the1st Respondent, but there was no verifiable or credible evidence linking the 1st Respondent with thealleged acts. Allegations of harassment and intimidation in our considered opinion have not beenproved. Again the Court of Appeal, Enugu Division in the case of Chime v. Ezea (2009) All FWLR(Pt.470) page 660 at 670 ratio 9 held:“Irregularities at an election which are neither the act of a candidate nor linked to him cannot affecthis election. In the instant case, the Respondents before the trial Tribunal complained about

irregularities in allotting of votes to the first Appellant and that there were no collation of results inplaces where there were voting due to non-availability of result sheets. The two hurdles theRespondents were to climb through, adducing cogent evidence were:-(1) Whether the irregularities, particularly, allotment of votes have been established.(2) Whether the allotment of votes can be attributable to the Appellants since there was no

evidence on record from which irregularity of allotment of votes can be adduced, this was notestablished by the Respondent against the Appellants in the case”

In the case before us, it is our firm view that there was no legally acceptable evidence to hold thatthe allegations of intimidation and harassment were credibly established against the 1st and 2nd

Respondents. In addition to all the above, the PW18 admitted undercross-examination that his claims as in paragraphs 3j – p in his statement on oath are what hisagents told him. This amounts to hearsay which is inadmissible and that is why the Court of Appealin the case of Olafemi v. Ayo (2010) All FWLR (Pt 526) pages 547 at 552 ratio D has this to say:

“ Where a witness gives evidence on a vital fact relying on information by another person,the evidence amounts to hearsay and would have no evidence value. The hearsay evidencewould not be that of an eye witness. In the instant case, since the 1st Respondent cannot beat all the affected wards at the same time, reports of the criminal acts of the Appellants andthe things were passed down to him which reports amount to hearsay evidence —————”The cases of Ajadi v. Ajibola (2004) All FWLR (Pt.220) 1273 and Buhari v. Obasanjo (2005) 2NWLR (Pt.910) 241 were referred to.

PW19 and PW20 similarly adopted their statements on oath as their evidence. They werenot party polling agents but ward supervisors in wards 5 and 6 respectively.

In his statement which he adopted, the PW19 raised allegations of irreconcilable and unreliableentries in Forms EC 8A and EC 8B for polling units in the ward, that eligible voters were unjustifiablynot allowed to vote while ineligible persons were allowed to vote. Again that results were writtenwith votes merely allocated to the 1st and 2nd Respondents by the 3rd Respondent’s agents. Therewere cases of over voting in the polling units. PW19 claimed that there were wide spread cases ofintimidation, molestation, and harassment of the agents and supporters of the Petitioners by theagents and supporters of the 1st and 2nd Respondents while members of the security agents failed todo anything. The PW19 further said that forms EC 8A in units 003, 004, 005 and 008 were notstamped and that in unit 004, the total number of valid votes recorded in the result sheets exceededthe total number of votes cast. PW19 during cross-examination admitted signing the results Exhibit213. He was also accredited and voted. The entries in Exhibit 89c were not disputed by the PW19and he also failed to demonstrate before the Tribunal what he claimed to be over voting in unit 004.His allegation of non stamping of forms EC 8A for units 003, 004, 005 and 008 was not established.See Exhibits 89, 89c, 89f and 89G. On the whole it is our view that the PW19 evidence added novalue to the Petitioners’ case. As we have said before, the PW20 was a ward supervisor, he also made allegations of unreliableentries in forms EC 8A and EC 8B for the polling units in the ward ie (ward 6). That eligible voterswere disallowed to vote while ineligible voters were allowed to vote. That votes were merely allocatedto the 1st and 2nd Respondents by the 3rd Respondent’s agents. In paragraph 3b – j of his depositionon oath, he alleged that there were wide spread cases of intimidation, molestation, and harassmentof the agents and supporters of the Petitioners by the agents and supporters of the 1st and 2nd

Respondents while members of the security agencies failed to do anything. That there was noproper accreditation of voters in the polling units in the ward.PW20 stated that in units 001 and 010, the total number of valid votes recorded in the result sheetsexceeded the total number of valid votes cast in the units. PW20 further claimed in paragraph 3i ofhis deposition that the results as stated in forms EC 8A therein were not stamped. However undercross-examination, the PW20 admitted that he voted on the day of the election at unit 3. That thereare 12 units in his ward, but of the 12 units, he identified the results in 10 units which the Petitionersare challenging. PW20 also admitted that on the day of the election, he was going round the variousunits. PW20 admitted that he instructed all their polling agents to sign the results of the ward due tothe threat to their life. A careful consideration of the evidence of the PW20 shows that he voted afterdue accreditation on the day of the election. He could not however demonstrate to the Tribunal thealleged over voting in the face of Exhibit 248 (the register of voters) for the ward and units andExhibit 198 which contains entries in respect of unit 003 ward 6. It was also clear that the resultswere duly stamped as shown in Exhibits 90B, 90C, 90E, 90F, 90H and 90J. Forms EC 8A as itaffects polling units 008, 009, 011 and 012 bear the stamp of the presiding officer with his signature.It is clear from all that we have said that the allegations made by PW20 of over voting, molestationof supporters of the Petitioners, and improper accreditation were not proved.

12. IWO LOCAL GOVERNMENT:Out of the 144 polling units in the 15 wards in Iwo Local Government Area, the Petitioners challengedthe elections in only 53 polling units. In proof of their allegations, they called only two witnesses;they are the PW21 and PW22. The PW21 was a polling agent for the Petitioners. He was in chargeof unit 11. His testimony at pages 1485 to 1486 Vol.IV of the Petitioners petition dwell on thefollowing allegations:-

Paragraphs –“2, That I know that at my polling unit some voters were denied accreditation, and were not allowedto vote even though they came with their permanent voters card to the unit.3, I witnessed the election at my unit, money was shared to voters at the queue, open campaign forvotes, sharing of food and drink by Mr. Majester and other APC members at the unit.4, That I know as a fact that Alhaji Dr. Ashifanu came with several women in purdah and thesewomen carried out multiple voting at the unit and the security officers at the unit did not stop them atall and these continued till the end of voting at the unit.In the first instance, sharing of money, food or any other gift during election amount to bribery and ifproved amounts to serious electoral malpractices. To establish this, it has to be shown that eitherthe candidate directly induced voters or through his acknowledged agent authorized what was doneor subsequently ratified it. See the case of Musa and Ors v. National Electoral Commission andOrs (1989) 1 NSPLR 20 at 36. Again from the PW21’s evidence as reproduced, his claim that somepotential voters were denied accreditation was not established before the honourable Tribunal. Nowitness came before us to say he or she was denied accreditation, or given food and money to casthis or her vote for a particular candidate.

Finally, his allegation of multiple voting was also not substantiated. If there was multiplevoting as claimed by the PW21, he ought to have demonstrated this before the Tribunal showingvery clearly the specific areas of over voting or multiple voting. In fact all the allegations by thePW21 in his adopted statement on pages 1485 – 1486 Vol.IV of the petition were not proved. OnPW22, his statement on oath also bothers on non-accreditation of voters, voters register not ticked,threat by a group of people called “Jaishu Tahun” and one Mr. Dauda to kill all PDP supporters andanyone who cast vote for PDP. Irreconcilable entries in forms EC 8A and forms EC 8B in his wardand unit. Inexplicable and non-initialed alterations in forms EC 8B, open campaign during the electionand inducement of voters with food and drinks. Some of these allegations of intimidations andthreat to life, are criminal in nature. It was expected of the Petitioners or those of his supporters oragents who were so threatened or intimidated to report to the security agencies or a petition sent tothe police authority including all the threats and intimidations. There is no proof of any report madeto the police. The witness did not show to the Tribunal any altered result that was not initialed nor didhe demonstrate before the Tribunal his alleged conflicting entries in forms EC 8A and EC 8B, in anyof the units challenged. A mere allegation that strange faces and or persons who were not registeredvoted is not enough in an election petition. It must be proved by the Petitioners that such unregisteredvoters voted and that they voted for the Respondents and that the result of the election was affected

to their disadvantage. The evidence of the PW22 was short of the above requirement.His evidence in our mind lacks legal value. We observed that the Petitioners did not field

witnesses in 91 polling units in the ward. They are considered abandoned. The allegations in thisLocal Government were similarly not proved.

13. OBOKUN LOCAL GOVERNMENT.In Obokun Local Government, there are 10 wards and 83 polling units. The allegations of the

Petitioners are in respect of 30 polling units in 9 wards. The wards are Ibokun ward 01, polling units001, 002, 003, 004, 005, 007, and 008. Ipetu Ile/Ada Owode ward, 02 polling units 005, 006, and 008.Ila hun/Ikinyinwa ward 03, polling units 002 and 006. Ilase/Idominasi ward 04, polling units 001, 002,004 and 006. Esa Oke, ward 7 polling units’ 002, 003, 004, 009, 011, 012 and 013. Otan – Ile ward8, polling units 001 and 005. Esa Odo ward 9, polling unit 006. In proof of the claim in the above wards and units, the Petitioners called two witnesses; they arePW40 and PW43 in respect of wards 7 and 8. The PW40 made a written statement on oath which headopted as his evidence before this Tribunal during the trial. His testimony as contained in hisstatement on pages 887 to 889 Vol. III of the petition is not remarkably different from the testimoniesof all other witnesses for the Petitioners. It also bothers on improper accreditation, conflicting orirregular and incorrect entries in forms EC 8A and EC 8Bs. He was the PDP ward supervisor andCollation Agent. In spite of all the allegation of electoral malpractices in his deposition which headopted before us as his evidence in this petition, the PW40 admitted under cross-examination thathe voted but after much troubles or difficulties. That there are 13 units in his ward and there werePDP agents in all the units. PW40 identified Exhibit 200, pages 19 – 25 when it was shown to him.They are the results received or collected from all the units in his ward. He admitted signing Exhibit175 B5, which is form EC 8B. His name is also on the result sheets contrary to his allegation or claimin paragraph 6c of his deposition which he adopted as his evidence in this case. He could not alsopoint out any discrepancies or improper entries in forms EC 8A and EC 8B. PW40 identified hissignature on Exhibit 215 (form EC 8A). Further cross-examined, PW40 stated that he cannot tell thenumber of ballot papers used as he is not a computer wizard; he could not tell the number of validvotes cast for unit 9. He does not know the number of ballot papers rejected. That as a supervisor,he did not remain in a particular place. He was moving around. According to him, he personallywitnessed the collation of the result in unit 4 and got the other results from his field agents throughforms EC 8A. The evidence of this witness is neither here nor there. We wonder how he has tocomplain against the result of election in which his party agents were in all the units and signed all theresults as could be gleaned from the Exhibits before the Tribunal. He personally voted afteraccreditation. He signed the results. Nobody who was prevented from accreditation and voting wascalled to testify. PW40 failed also to demonstrate before the Tribunal any other result that is authenticapart from the CTC of the result tendered by them before the Tribunal. The difficulties or troubles hefaced or encountered during accreditation was not established before the Tribunal. His evidenceagain in our mind does not advance the case of the Petitioners.The PW43 statement can be found at pages 912 to 914 Vol.3 of the petition. He adopted same as hisevidence in this case before the Tribunal. He was the collation officer for PDP in ward 8 and voted inunit 002. The PW43 in spite of his allegations and claims in his deposition admitted voting after hechecked and found his name in the voters register pasted on the wall in his polling unit. He admittedbefore the Tribunal he voted for the candidate of his choice. He acknowledged receipt of Exhibit 200pages 26 – 27, 27 (Form EC 8A). He identified Exhibit 175BC though bearing his signature butdenied ever signing same. He admitted that the signatures in his statement on oath and Exhibit 175BC may be his, but he did not sign Exhibit 175 BC. However, simple but careful comparison of thePW43 signature on Exhibit 175 – BC and his statement shows no remarkable differences. In ourview, PW43 signed Exhibit 175 BC despite his denial. Again a careful examination of Exhibit 200pages 26 – 27 shows the signatures of the parties’ agents including that of the 2nd Petitioner. Thedenial of the signature by the PW43 at this stage is rather too late. It does not help this case either.Exhibit 215 page 6 bears the name and signature of the PW43. He cannot deny it at this stage.Further, under cross –examination by learned counsel to the 2nd Respondent, the PW43 admittedbefore the Tribunal, that Exhibit 215 is the collated result for his ward and that in unit 004, A.P.C.scored 100 votes while PDP scored 124 votes and that the PDP won, but they struggled to win thatunit. Yet PW43 insisted that the entries in that unit were wrong in that the PDP ought to have earned300 valid votes and not 124. He however also failed to show the basis for these figures. There wasno concrete evidence to show why the correct scores was not entered for PDP. The PW43 maintainedthat there was no accreditation yet he was accredited and voted for the candidate of his choice.PW43 failed to establish his allegations as contained in his paragraphs 6E, 6J and 6I. The allegeddifference in the entries in forms EC 8A and EC 8B were not also established before us. Over voting,intimidation, harassment of voters as claimed by the PW43 in his deposition were also not substantiatedby credible evidence. He failed to demonstrate before the Tribunal, how votes in units 1, 2, 3, 5, 6and 7 were manipulated in favour of the 1st and 2nd Respondents by the 3rd Respondent. All theabove notwithstanding, a person who participated in an election by voting after due accreditation andfreely moving round the various other units other than the one in which he voted, cannot seriouslycomplain of harassment and intimidation without credible and acceptable evidence. If there wereregistered voters who were prevented from accreditation and voting, it is left for the Petitioners to callsuch witnesses. It is also incumbent on the Petitioners who are alleging irreconcilable entries toshow and prove same.

PW43’s evidence is lacking in legal value, it goes to no issue. The Petitioners have failed toprove their case in respect of Obokun Local Government Area.

14. OLA-OLUWA LOCAL GOVERNMENT.In Ola –Oluwa Local Government, there are 10 wards and 52 polling units. The Petitioners’ allegationsare in respect of 22 polling units in the 10 wards – They are :- (1) Telemu ward 1, polling units 003,and 004. Ogbaagba II ward 04, polling unit 001. Ikire Ile/Iwora ward 5 polling units 001 and 002.Isero/Ikonifin ward 06 polling units 004, 005 and 006. Obamoro/Ile Ogo ward 07, polling unit 005.Bode – Osi ward 08 polling unit 002, 004 and 005. Ajagba/Iwooke ward 09 polling units 001 and 003.Asa Ajagunlase ward 010, polling units 003 and 008. In proof of the various allegations of electoral malpractices in their pleadings in pages 133 to 135 ofthe petition, the Petitioners called only one witness, PW37, who was a ward supervisor in respect ofTelemu ward 001. The Petitioners’ complaints range from non stamping of forms EC 8A used incertain units; particularly unit 001 in ward 02, unit 001 in ward 04 and unit 001 in ward 005. They alsocomplained of alterations in ward 06 unit 004, that form EC 8A used in this ward has alterations notcounter signed by the appropriate officer. Same complaints in respect of unit 002 ward 08, and unit001 and 003 in ward 09. Much as these complaints are serious which can alter the results of elections,they must be substantiated by convincing and credible evidence by the party alleging or asserting.

As we have observed earlier on, the PW37 was fielded by the Petitioner and he adopted hisstatement under oath as his evidence in this petition. However under cross-examination by thelearned counsel to the 1st Respondent, the PW37 admitted that his complaints relate only to ward 1unit 003 CDC Primary School Telemu 1. He confirmed the result in form EC 8B and also confirmedhis signature in Exhibit 176. The PW37 who said he personally visited the 6 units in his ward maintainedthat he personally witnessed all the irregularities perpetrated by the Respondents. However, it isclear from Exhibits 201, and 172 that he signed the results. He also failed to show before theTribunal any result sheet without the official stamp of the officials who conducted the election, neitherdid he show any altered entry not initialed or counter-signed. Irreconcilable entries as alleged in thepleadings and the witness deposition were not also proved.

Apart from all the above, the Petitioners did not call witnesses in respect of the other units. Itmeans they are abandoned. From all we have said, it is obvious that the various malpractices in theelection in Ola–Oluwa were not proved.

15. OLORUNDA LOCAL GOVERNMENT.In Olorunda Local Government, there are 11 wards and 116 polling units. The Petitioners

complaints or allegations is in respect of 86 polling units in 11 wards which are as follows: Agowondeward 01, polling units 001 to 013, Balogun ward 02, polling units 001 – 010, Akogun ward 03 pollingunits 001, 002, 004, 005, 006, 007 – 010; Atelewo ward 04, (polling unit 001 – 011, Owoope ward 05,polling unit 001 – 010, Owode 1, ward 06, polling units 001 – 009, Owede II ward 07 polling unit 001– 008. Ayeforo ward 08 polling unit 001 – 012. Oba – Ile ward 09, polling units 001, 008, 009 and010, Oba – Oke ward 010, polling units, 001; 004, 005 and 007, Ilie ward II, polling units 001, 002006, 008, 009 and 010.In proof of their allegations in the above wards and units in Olorunda Local Government, the Petitionerscalled 7 witnesses, they are PWs7, 8, 9, 10, 11, 12 and 23. In all, only the PW23 was a polling agent.The other 6 witnesses were ward supervisors for wards 1, 3, 6, 7, 8 and 9. Generally speaking, allthe witnesses, i.e. PW7 to PW12 and PW23’s complaints or allegations are quite similar if not thesame. They are, that there was no proper accreditation; unqualified and unregistered voters voted.Several registered voters were prevented from voting. That the total votes cast were more than thenumber of voters accredited. That the security agents did nothing in the face of the brazen electoralmalpractices that were going on in their presence. Furthermore that votes were arbitrarily allocatedto the 1st and 2nd Respondents. In spite of all these complaints/allegations, all the witnesses hereinvoted on the day of the election after accreditation, and other than the PW23 who was a pollingagent, all others were ward supervisors who collected results from their agents in the various units.All signed the various results they are now disputing and were unable to produce or provide a moreauthentic result to substantiate their claim.The PW7 under cross-examination identified and confirmed Exhibit 202, i.e form EC 8A, signed byhis party agent. He also identified the CTC of form EC 8B which he also personally signed as asupervisor for the 2nd Petitioner. In answer to the question put to him, he said he saw unregisteredand unqualified persons thumb printing ballot papers but he does not know who they voted for. Inparagraph 12c of his deposition, he said the total number of votes cast were more than the totalaccredited voters. However this same witness saw Exhibits 202 and 217, and could not identify theover voting as claimed in paragraph 12c of his deposition. He was accredited in his unit where hevoted; all that happened in the other units in his ward he was told. It is hearsay and inadmissible.The PW8 who as we said earlier was a supervisor for his ward also admitted that he voted on theday of the election in unit 8, after due accreditation. The units results available for his ward were twowhich he signed. See Exhibit 217 pages 22 – 23. PW8 was unable to substantiate his claim offabrication of results in form EC 8A Exhibit 202 nor was he able to prove his allegation of arbitraryallocation of votes to the 1st and 2nd Respondents. Also PW9 identified Exhibit 202 and the 9 sheets(results received from his agents) from other units of ward 6. Exhibit 238 written reports he receivedfrom his field party agents was tendered through him. He admitted voting in unit 7. PW9 alsoconfirmed during the trial, that Exhibit 202, pages 45 – 53 were duly signed by their party agents.Though unqualified voters voted according to his deposition, he does not know the number of suchunqualified voters who voted. The evidence of the PW9 also lacks probative value. We do not seehow a witness who went through accreditation, voted and signed the relevant results collated willturn around to question the authenticity and credibility of such result. PW9 was in his unit during theelection, again he claimed to move round the 9 units during the election. If he had first hand or directknowledge of what happened during the election in all the units, then there was no need receivingreports from the agents. He should be able to make report of what he saw in all the units. Thereports of the agents are of no moment in this case. On the PW10, he also tendered Exhibit 389,four (4) copies of reports filed by his field agents. These reports lack value and do not help thePetitioners’ case. The PW10 under cross-examination identified Exhibit 202 pages 53 – 61 as thesigned results given to him by his agents. He admitted that his name is on Exhibit 217 (form EC 8B)which he also signed.

Further cross – examined, he admitted that while in his unit where he voted, he cannot tellwhat was going on in other units. His allegations of underage voters participating in the electionincluding unregistered voters, were again not proved by any iota of evidence. PW10 evidence in ourmind is not credible. PW11 according to him covered the 12 units in ward 8. He confirmed five (5)of his party agents signed Exhibit 202 i.e. form EC 8A and he signed form EC 8B as the collationofficer for his party PDP in ward 8. PW11 confirmed the Petitioners had agents in all the units; hesaid their agent at unit 9 was sent away but did not disclose the name or identity of the person whodid. That about 400 people forced him to sign the result in his unit but cannot identify anybodyamongst them. The PW11 also failed to sustain his claim of the unqualified, unregistered and underaged persons who voted. He mentioned one Ademola Adesina as their party agent in unit 9, AdelekeNafiu as their agent in unit 8, but they were not called as witnesses. From all we have said, it is clearthat all the allegations by the PW11 are unsubstantiated.The PW12 who was the ward 10 supervisor said he registered in unit 9, and tendered the CTC of thevoters register for the 10 units, which is Exhibit 241 in this petition. As a supervisor, he signedExhibit 213 (form EC 8B) page 9. He collected the results from 11 units. That out of the 11 units, onlyresults from 4 units were tendered. He is surprised. The legal implication of this is clear, the resultsof the 7 units are abandoned, they are no more in issue in this case. Furthermore, that he signed theresults of the 4 units tendered without more, is enough and safe to assert the correctness of theresults until it is proved otherwise. There is nothing however in the evidence of the PW12 tosuccessfully dispute the results of the 4 units in this case. The allegations of the PW12 in hisdeposition are not different from the allegations made by the other witnesses. From paragraphs 3,4, 5, 6 and 8 of his deposition; he claimed that there was inducement of voters, unregistered andunqualified voters voted etc. However a comparison of Exhibit 241, CTC of voters register for ward10 unit 9, Exhibit 202 pages 74 – 77 and Exhibit 217, clearly show that the allegations and claims bythe PW12 are not true. There was no cogent evidence to prove the alleged inducement of votersneither was there any credible evidence to prove the claim of the unlawful votes cast by unregisteredand unqualified voters, more so when he the PW12 admitted signing the results of the ward as asupervisor Exhibit 217. Having signed the results, it is not expected that the same PW12 could turnaround to dispute the correctness of same. Again, his allegations as stated in his deposition cannotbe sustained. Apart from the units results tendered in this petition, all the others are hereby regardedas abandoned.

The PW23 was the only polling agent amongst the witnesses, and his deposition is at pages997 to 998 Vol.III of the petition. His allegations are the same as all the other witnesses. In spite ofthe fact that his name and signature are on Exhibit 202 page 46 he denied ever signing same. Hisevidence did not add any value to the Petitioners case.The 1st Respondent on his part called 4 witnesses in respect of Olorunda Local Government Area.They are the RW1, RW2, RW3, and RW4, who were ordinary voters, voted according to them afterdue accreditation. They voted in their various units and maintained that there was no harassmentand no intimidation of any kind. Their evidence to us appear to be more credible as it is as to whatthey witnessed personally and not reports from any other persons/or agents. Their testimonieswere not discredited by cross-examination.

16. ORIADE LOCAL GOVERNMENT.The PW32 and PW34 who were wards collation agents for PDP are the only witnesses called by thePetitioners in Oriade Local Government. There are however 12 wards and 111 polling units. ThePetitioners’ allegations are in respect of 30 polling units in 7 wards which means they have abandonedtheir claims in 5 wards and 81 polling units. In a nut shell, the Petitioners pleaded that in OriadeLocal Government in which the election is being challenged, was marred by non compliancesubstantially with the provisions of the Electoral Act 2010 (as amended) and the Manual for ElectionOfficials 2014, both of which were observed more in breach by the 3rd Respondent in the conduct ofthe election. That the non-compliance was not only substantial, but substantially affected the electionin the polling units being challenged such that the results returned there from do not represent theproduct of any proper election and ought to be disregarded or cancelled. The polling units and the

wards in question are as follows:- Erin-Oke, ward 01, polling unit 007, Erin-Ijesa ward 02, pollingunits 001, 003, 005 and 008, Ijebu-Jesa ward 03, polling units 001, 002, 005, 006, 007, 008, 009,010, 014 and 017, Iwoye ward 04, polling units 004, 005, 006, 007, and 008, Ikeji-Arakeji ward 07,polling units 005, 006, 007 and 008. Apoti Daghaja ward 08 polling units 001, 008, and 012, Erinmo/Iwaraja ward 12, polling units 003, 005, and 006.

The Petitioners’ grudge against the election in all the above wards can again be summarized asfollows:-(1) Irreconcilable entries in forms EC 8A and EC 8B.(2) Arbitrary allocation of votes to the 1st and 2nd Respondents by the 3rd Respondent.(3) Intimidation, molestation and harassment of their supporters and agents by agents andsupporters of the 1st and 2nd Respondents in the presence of security agents.(4) Non stamping of form EC 8A as required by law. See page 149 paragraphs 53 a – g andpage 150 paragraphs a – e of the Petitioners’ pleadings.

In fact the main complaint of the Petitioners in respect of the electionin this Local Government Area, is the non – stamping of form EC 8A in nearly all the units. In hisdeposition at pages 1636 to 1637 Vol.IV of the petition, the PW32 who as we have noted was a wardsupervisor for the Petitioners alleged a number of irregularities. He alleged in paragraph 4 of hisstatement that party agents at the polling units of the wards were not allowed access to see andobserve the electoral materials and witness the electoral exercise. When they protested, the electoralofficials and the security agents either ignored them or threatened to send them away entirely.Paragraphs 6 – 10 of his deposition contain allegations of wide spread over-voting, multiple votingand voting by proxy in the polling units leading to cases of total votes cast exceeding number ofaccredited voters. That notable A.P.C. members did embark on campaign during the election inducingvoters with drinks, food and money.The above allegations are very serious electoral irregularities if they are proved as required by theElectoral Act, 2010 (as amended). In an attempt to prove these allegations however, the PW32 saidhe personally observed all the malpractices and also gathered information from their field agents.He however failed to name specifically the wards and units he noted the alleged malpractices andthose by his polling agents. Apart from his complaint of arbitrary allocation of votes to the 1st and 2nd

Respondents in ward 8 Apoki/Daghaja units 001, 008, and 012 and Iwaraja ward 12, he did notmention any other ward or unit where he observed election irregularities personally. Every otherallegations were generally mentioned. Apart from what he saw and sensed, his agents reports asshown herein are mere hearsay and therefore inadmissible. In spite of his allegation in paragraph 6of his deposition, the PW32 admitted under cross – examination that he voted on the day of theelection. This simply means that he went through accreditation. Again, PW32 failed to show whenconfronted with Exhibit 203, (form EC 8A) any record of over voting, or multiple voting. Exhibit 203,shows the signatures of the agents of the Petitioners. The agents were not called to deny if thesignatures therein were not their own. It will be difficult for the Petitioners to deny the authenticity ofthe results bearing the signatures of their agents who observed the elections personally. Finally, thePW32 did not at the trial show any of the forms not bearing the official stamp of the presiding officers.PW32’s allegations are not proved.The statement and evidence of PW34 even under cross- examination is similar to that of the PW32,except that he denied signing the result shown to him, Exhibit 144B. All the same, Exhibit 144Bbears the official stamp of the presiding officer. This is clear on the face of the Exhibit. The allegationsof the Petitioners in Oriade Local Government again cannot be said to have been proved. It wasobserved that majority of the Petitioners’ witnesses were collation officers and not polling agents. Onthis, the Court of Appeal in the case of Ajimobi v. I.N.E.C. (2009) All FWLR (Pt.1 – 199) page 91 at93 ratio held:-

“Only polling agents are material witnesses to establish and prove allegations of electoralmalpractices. In the instant case, the Petitioner presented evidence of 11 persons to coverone hundred and sixty (160) polling units of allegedly affected areas of Ogbomosho e.t.c.clearly; the 11 witnesses are inadequate to prove any allegation of malpractice and otheroffences alleged by the Appellant”

This case is in all fours with the case at hand as ward collation/supervisors and not polling agentswere the witnesses fielded by the Petitioners in proof of their case. See also the case Yusuf v.Obasanjo (2005) 18 NWLR (Pt.956) 96. The allegations of intimidations, threat to life against theRespondents particularly the 1st and 2nd Respondents were serious and the Petitioners needed to domore than identifying them and to show the veracity of their position. This, they failed to do.

17. OSOGBO LOCAL GOVERNMENTIn Osogbo Local Government Area, the complaints of the Petitioners relate to all the 15 wards

in the Local Government. They have in pages 154 – 173 of their petition chronicled their grievancesin all the 15 wards. It is their contention that all the votes credited to the 1st and 2nd Respondents bythe 3rd Respondent from 152 polling units out of the 227 polling units within these wards are unlawfulvotes as they were obtained in a manner that is not in compliance with the Electoral Act 2010 (asamended). In proof of these allegations they called 5 witnesses, who testified before this Tribunal asPW2 – PW6. They have also tendered in evidence duplicate copies of form EC 8A, that is Exhibit204, being the results from the various wards and units within the Local Government. Also before theTribunal as Exhibit 179 are a series of forms EC 8B from this Local Government. The 5 witnessescalled by the Petitioners were supervisors in their respective wards within the Local Government.PW2, Prince Kolapo Sikiru whose sworn testimony is found on pages 688 – 690 of Vol.II of thepetition was the ward supervisor for Ataoja A ward 01 of the Local Government. PW3 – Gbadebo A.Adeyemo was the ward supervisor for Ataoja B ward 02. His evidence in chief is found on pages 697– 699 of Vol.II of the petition. The supervisor for Ataoja C ward 03 was Oladimeji Sulaiman whotestified as PW4. His evidence is on pages 706 – 708 of Vol.II of the petition. PW5 – OmojaroOladepo, whose sworn testimony is on pages 721 – 723 of Vol.II of the petition was the ward supervisorfor Ataoja ward 04. The supervisor for Hagun B ward 6 of Osogbo was Kola Olawide. He testified asPW6. His evidence in chief is found on pages 743 – 745 of Vol.II of the petition. The evidence ofthese witnesses relates to what happened in their respective wards on the day of the election. Thereis no evidence in support of the malpractices alleged in the remaining 10 wards of the LocalGovernment. We therefore hold that the pleadings relating to these 10 wards have been abandoned.We shall therefore focus our attention on the 5 wards in which evidence has been called.

It is the general testimony of these witnesses that by virtue of their duties as ward supervisorsthey were coordinating and supervising the activities of their agents in the various polling units withinthe ward. They were also receiving reports from these agents and at the end of the election, collectedthe unit results from the agents. These units results contained in form EC 8A are before the Court asExhibit 204. It became clear from their respective cross-examination by counsel to the Respondentsthat they did not stay in any particular unit from the beginning to the end of voting on that day.

In Ataoja A, ward 01, there are 19 polling units. It is the pleading of the Petitioners, supportedby the evidence of PW2 that the election in all the units in this ward was not free and fair as there wasno proper accreditation as votes were merely ascribed to the 1st and 2nd Respondents. It is theevidence of PW2 that in units 01, 04, 09, 010, 012, 016, and 017 agents of the Petitioners wereharassed and prevented from doing their job by supporters of the 1st and 2nd Respondents. Thateligible voters who were supporters of the Petitioners were not allowed to vote by supporters of the2nd Respondent and the officials of the 3rd Respondent did not allow their agents to know the quantityof the electoral materials before the commencement of the election. That at Winjobi Street unit 001,the entries in form EC 8A cannot be reconciled, while at unit 002 ballot papers were not accountedfor on form EC 8A, which was also not stamped. That also at units 004, 005, 006, 007, 008, 010,013, 014, 015, 016, 017 and 018 forms EC 8A were not stamped. That at units 010 and 013, form EC

8A contains entries that are in conflict. It is the further evidence of PW2 that voters were openlyinduced with money and other materials by supporters of the 2nd Respondent. That the officials of the3rd Respondent ignored the protests by agents of the Petitioners at these units and allowed ineligiblepersons to vote. PW2 testified that the 2156 votes credited to the 2nd Respondent in this ward werenot cast by eligible voters and should therefore be taken away. Under cross-examination by OgunleyeEsq. for 3rd Respondent, PW2 said all the agents at the various polling units on the day of election arealive. The agents engaged by the Petitioners to be their eyes at these polling units are in a betterposition to testify as to what happened thereat. The evidence of PW2, which is based on what wastold to him by these agents is inadmissible as it amounts to hearsay evidence. There is no evidenceof harassment from any agent of the 2nd Petitioner. PW2 said his evidence is based on the reports hereceived from his agents as well as what he witnessed himself. He did not however go on to categorizethese things he witnessed himself and we are not in a position to do that. He said he voted on theday of the election at unit 003 store, Isale. There is no specific complaint regarding this unit in hisevidence. The bunch of forms EC 8A for this ward, that is pages 1 – 16 of Exhibit 204 does containthe result from this unit. The implication is that the Petitioners have no issues in this unit. While hehas not testified to any malpractice in his unit, it is rather interesting that he is alleging malpracticesin units where he was not present to witness what happened. He confirmed signing Exhibit 179 whenshown by counsel to 2nd Respondent. This is form EC 8B for his ward. He signed as 2nd Petitioner’sagent. He said he signed Exhibit 179 with a reason. He did not state in his sworn deposition anyreason why he had to sign the result. He did not also in his testimony identify any ineligible voter thatwas allowed to vote. While he says there was no accreditation, he did not deny the fact that votingtook place in these polling units pursuant to which his agent gave him the results in form EC 8A.Even if there was no accreditation, we do not see how that affects the overall result as non accreditationalso affects other parties contesting the election. Having signed Exhibit 179, and having not giventhe Tribunal any reason why the 2,156 votes credited therein for the 2nd Respondent should bedisregarded, we cannot discountenance the said votes as urged by the Petitioners.

The evidence of PW3 as regards Ataoja B ward 02 is not different from that of PW2. Thisward has 10 polling units. His evidence, like that of PW2 is based on the reports he received from hisagents as well as what he personally witnessed. He did not however separate those things hewitnessed from those received through his agents. While he said the agents of the Petitioners wereharassed and prevented from doing their work, no agent came to testify to that effect before theTribunal. He testified that at polling units 002 and 003, there were discrepancies in the entriescontained in form EC 8A. When shown pages 17 – 21 of Exhibit 204, which are forms EC 8A for thisward, by counsel to the 2nd Respondent and asked to point out the discrepancies alleged in hisevidence, he said he needed a calculator. We understand him as having not done that as at the timehe wrote his statement. If he had, he would have stated the details therein. We do not thereforebelieve PW3 that there are any discrepancies having not pointed any out. He said in units 003, 004and 005, the results, form EC 8A were not signed nor stamped. Under cross-examination by counselto 1st Respondent, when he was shown pages 17 – 21 of Exhibit 204, he conceded that they weresigned except for page 21. Even if they are not signed, it does not show that no election took placein that unit. He admits signing form EC 8B which is Exhibit 179B1 before the Tribunal. He said hesigned it to save his life, a fact not stated in his evidence when he had the opportunity of stating thecircumstances under which he signed form EC 8B. He alleged alterations in form EC 8A, which hedid not however show to the Tribunal. We have also not seen any. While he testified that peoplewere allowed to vote without due regard to the voters’ register, he testified in response to a questionby counsel to the 3rd Respondent that he does not have a copy of the voters register in his unit. Andin any case, it is not his evidence that these alleged unregistered voters voted for the 2nd Respondent.They may as well have voted for the Petitioners. While stating that the 1715 votes credited to the 2nd

Respondent in this ward do not represent the votes actually cast by the voters in the ward, he did notstate what the actual votes should have been. Sanusi Balikis Abiola, who testified as RW5, is aregistered voter who voted in polling unit 2 of ward 2 of the Local Government on the day of election.He testified that he got to the polling unit at about 8 am on that day and remained there until theconclusion of election and counting of votes. He testified that accreditation commenced at 8 am andall those who came with a permanent voters card were accredited, and all those accredited wereallowed to vote. That every accredited voter voted only once. After the voting, the ballot papers weresorted out and counted and the results entered in form EC 8A which was counter-signed by all theagents. His evidence was not contradicted under cross-examination by Petitioners’ counsel. Herather reaffirmed that he was at the polling unit and witnessed all that happened. As stated earlier, noagent from this unit or a voter thereat has come to confirm the alleged malpractices in this unit or theward generally.

The evidence of PW4 is as regard the 17 polling units in Ataoja ‘C’ ward 03. He identifiedpages 22 – 31 of Exhibit 204 as the various forms EC 8A he received from their agents after theelection. He acknowledged that all the agents signed Exhibits179B2 (form EC 8B). The Petitionershave however tendered results from only 10 units in this ward. These are comprised on pages 22 –31 of Exhibit 204. These are for units 004, 005, 007, 008, 009, 010, 013, 014, 015 and 016. Even theresult from unit 012 where PW4 voted is not part of Exhibit 204. He listed the units in which agentsof the 2nd Petitioner were harassed and prevented from doing their job. None of these agents howevercame to confirm this fact before the Tribunal. His evidence is that the entries for units 005, 016 and017 on form EC 8A do not tally. When asked how he got to know that the results do not tally, hisresponse was “—after all the agents sat and we calculated it the results did not tally.” He did nothowever state what the actual result should have been.

PW5 confirmed that pages 32 – 48 of Exhibit 204 are the results he said he received from hisagents in respect of Ataoja ward D. While confirming that Exhibit 179B3 form EC 8B has 20 unitsindicated thereon, there are actually 22 polling units in the ward. His evidence in paragraph 2 of hissworn deposition relates to 20 units, while in paragraph 3viii he includes unit 021. However theresults tendered before the Tribunal are for only 17 units. He agrees signing form EC 8B, but said hewas forced to sign it. He did not state so in his written deposition. His evidence is, therefore clearlyan afterthought. He said many eligible voters suspected to be members of the 2nd Petitioner werechased away by members of the 2nd Respondent. Yet not a single such supporter has been mentionedby him. Nobody has also been called to testify that he was prevented from voting. He did not pointout the discrepancies in form EC 8A in units 001, 002, 006, 007, 016, 017, 018 and 020 as stated inparagraph 3vii of his deposition, even in his unit which is 007. The none stamping of form EC 8A inthe units mentioned by him in paragraph 3viii has no relationship whatsoever with the conduct of theelection. And in any case, there is no evidence of how the none stamping has adversely affected thePetitioners.

Kola Olomide, PW6 was the supervisor for Otun Hagun B ward 6 on the day of the election.He testified that there were malpractices in all the 14 polling units in the ward. He was informed ofthese malpractices by his agents at the various polling units and he witnessed some himself. Hisevidence that his agents at all the polling units were harassed and prevented from doing their dutiesproperly by supporters of the 2nd Respondent has not been supported by evidence from any of thesaid agents, not even the agent in his own unit where he voted. While in chief he testified that therewas no proper accreditation, he admits under cross-examination that he “was allowed to vote. Theydid not take it (voters card) but I was allowed to vote like every other person.” Under cross –examination, he confirmed he received the results from all the agents in the units within the ward.That he gave all these results to the Local Government supervisor. Before the Tribunal however,there are only 3 results contained on pages 60 – 62 of Exhibit 204. There is no explanation as to thewhere about of the remaining results. Even PW6 said “What they brought to me I gave them to theLocal Government supervisor. I do not know how they now became only 3.” Since only the resultsfrom 3 units are before the Tribunal out of the 14 units, the complaints as regard the other units aredeemed abandoned. The results before the Tribunal are for units 001, 007 and 010 contained onpages 60 – 62 of Exhibit 204. The evidence of PW6 concerning these units is that their results onform EC 8A could not be reconciled. It is not clear what he means as he gave no explanation in hisdeposition or demonstrated before the Tribunal. What is however undisputed is that he said he

signed form EC 8B. See Exhibits 179B5 and page 5 of Exhibit 219. It is not his assertion, evenbefore us that he was forced to sign the said results. His signature is a confirmation of the authenticityof the result of that ward. We so hold.

It is the assertion of the Petitioners in paragraph 55 of their petition that in the course oftransferring the votes of the parties as contained in forms EC 8A to form EC 8B and thereafter to formEC 8C, votes credited to the 1st and 2nd Respondents, particularly in Osogbo Local Government Areawere increased such that they were allotted votes not earned by them. They pleaded reliance onforms EC 8A, EC 8B and EC 8C from this Local Government. All these forms are before the Court asExhibits respectively. The Petitioners have however not pointed out any discrepancies in theseforms. They have not shown that the votes recorded for these Respondents on forms EC 8A aredifferent from those recorded for them in forms EC 8B and form EC 8C. Clearly this allegation hasnot been proved.What we have therefore done in the foregoing is to painstakingly demonstrate that from the evidenceled by the Petitioners on record throughout the contested Local Governments, they have failed toprove their case that the election and return of the 1st Respondent as Governor of Osun State wasinvalid by reason of corrupt practices and electoral malpractices as contended in Ground (ii) ofparagraph 20 of the petition. We so hold.

As correctly submitted by all counsel to the Respondents and as we have already alluded toin the course of this judgment, it is to be reiterated that allegations of corrupt practices are in thenature of criminal charges and ought to be proved beyond reasonable doubt. It is not sufficient toshow through the conduit of a written address however well written that there are grounds to believeor suspect that there have been corrupt practices as the Petitioners have attempted to do without thecritical element of creditably establishing these allegations by evidence of witnesses within thethreshold as allowed by law.

The Petitioners, in proving corrupt practices beyond reasonable doubt must lead concrete evidenceshowing the following:i. That the Respondent whose election is being challenged personally committed the corrupt

act or aided, abetted, consented or procured the commission of the alleged acts of corruptpractices.

ii. That where the alleged act was committed through an agent, that the agent was expresslyauthorized to act in that capacity or granted authority; and

iii. That the corrupt practice substantially affected the outcome of the election and how it affectedit.

See Audu v. INEC (No.2) (2010) 13 N.W.L.R. (Pt.1212) 456 at 544; Eze v. Okoroagu (2010) 3N.W.L.R. (Pt.1180) 183 at 233 – 234; Aregbesola v. Oyinlola (2011) 9 N.W.L.R. (Pt.1253) 458 at557.

The Petitioners in ground (iii) of the same paragraph 20 have gone further to question the Electionand Return of 1st Respondent on grounds of substantial non-compliance with the provisions of theElectoral Act 2010 (as amended), the Manual for Election Officials 2014 and the Guidelines issuedfor the conduct of the election.

To support this contention, the Petitioners made various allegations of non-compliance ascontained in the petition. The fundamental issue for us here is one of proof of these allegations andhow this has affected the elections or put another away, the question that arises is whether or not thePetitioners have satisfactorily established by credible evidence, that the scores or result recorded forthe 1st Respondent by 3rd Respondent were unlawful, void and or invalid, or that such votes resultedfrom non compliance with the Electoral Act and or the INEC Manual or the Election Guidelines.Unfortunately, from the gamut of the evidence we have evaluated, we do not see any such credibleproof.

It may be pertinent at this stage to refer once again to the evidence of PW1. It is important toreiterate that PW1, the State Secretary of 2nd Petitioner that tendered the copies of the electionresults, that is Forms EC 8As, forms EC 8Bs and forms EC 8Ds respectively, other than pleading andtendering these documents, this witness clearly failed to relate the documents either to the pleadedfacts or his evidence in chief. He also failed to show, from polling unit to polling unit, how the votesrecorded for the 1st Respondent were unlawful or void votes, resulting from non – compliance withthe Electoral Act, INEC Manual or Guidelines. In the same vein, most, if not all of the witnesses ofthe Petitioners, were not able to positively establish using either the result sheets or the stack ofballot papers contained in sacks which were indeed mostly unopened, the myriad of allegations ofnon– compliance contained in the petition, as we have demonstrated earlier on from unit to unit in thecontested Local Governments.

As earlier alluded to, the Petitioners indeed questioned some few witnesses of 1st and 2nd

Respondents on the absence of stamping on some of the duplicate copies of Forms EC 8A and someof the entries contained therein. These witnesses as we had earlier stated were not the authors ofthese documents and have nothing to do with the production or the entries made thereon. Theproposition is valid that a witness cannot be cross-examined with respect to a document which heneither authored nor had anything to do with. See Ita v. Ekpenyong (2000) 1 N.W.L.R. (Pt.695)614.

We really do not see any value in the answers supplied by these witnesses. We are of theopinion that the Petitioners ought to, but failed to subpoena a single Presiding officer in any of thepolling units been challenged, whose conduct were majorly called to question, and who were the realauthors of the result sheets or the Forms EC 8 series. No person in our considered view could havebeen better placed to give evidence on the outcome of the elections at the polling stations as regardsthe entries, non –stamping or the alleged disparities in the Forms EC 8As other than these presidingofficers. The burden is on Petitioners, who would loose if these Presiding Officers were not called togive evidence, to summon them to give evidence. This, they did not do.

We therefore hold that even if there were irregularities, and this we must restate were notprecisely proved, the Petitioners have not been able to show how these alleged irregularities havenegatively affected the outcome of the elections in the units challenged or substantially the totality ofthe results declared after the election.

In any event, our view is that such irregularities, if at all, are such that the Tribunal canoverlook in so far as they do not substantially affect the conduct of the polls in the totality of theConstituency of Osun State. Failure to strictly abide by the guidelines set out in the Manual forelection officials is not necessary a ground to question an election in view of the provision of Section138(2) of the Electoral Act which states:-

“(2) An act or omission which may be contrary to an instruction or directive of the Commissionor of an officer appointed for the purpose of the election but which is not contrary to theprovisions of this Act shall not itself be a ground for questioning the election.”

The Electoral Act, vide Section 139(1) goes further to provide as follows:-“(1)An Election shall not be liable to be invalidated by reason of non-compliance with theprovisions of this Act if it appears to the Election Tribunal or Court that the election wasconducted substantially in accordance with the principles of this Act and that the noncompliance did not affect substantially the result of the election.”See also Buhari v. Obasanjo (2005) 13 N.W.L.R. (Pt.941) 1; Buhari v. INEC (2006) 19 NWLR(Pt.1120) 246.In the instant petition, the Petitioners have failed to establish before us what provisions of the ElectoralAct and Manual have been contravened by any of the Respondents in the conduct of the elections inany of the polling units being questioned; or that the elections have not been conducted substantiallyin compliance with the provisions of the Electoral Act; or that the non-compliance substantially affectedthe result of the election.

On the basis of the foregoing analysis therefore, we are bound to resolve issue two againstthe Petitioners and we hereby firmly hold that from the totality of the credible evidence adduced by allparties on record, the Governorship election conducted by 3rd Respondent in Osun State and theresults declared are not liable to be voided by reason of corrupt practices in certain polling units of the17 contested Local Governments linked to the Respondents.

We further hold that we are satisfied that the Petitioners have not satisfactorily provedallegations of non-compliance with the laws governing the conduct of the questioned election to anydegree or magnitude to have substantially discredited the election and as a result we find no reasonto void the election or any part thereof on that ground. It must be understood that substantial compliancedoes not mean absolute compliance. See Biyu v. Ibrahim (2006) 8 NWLR (Pt.981); Ogu v.Ekweremadu (2006) 1 NWLR (Pt.961) 255.

ISSUE 3:

Whether the 1st Respondent was validly returned as the candidate, who polled themajority of the lawful votes cast at the Governorship election conducted by the 3rd Respondentin Osun State on the 9th day of August, 2014.

It is the assertion of the Petitioners that the 1st and 2nd Respondents did not poll majority of thelawful votes cast at the said election. It is trite law that the burden rests on them to prove theirassertion. See sections 132 and 133 of the Evidence Act, 2010, and the case of CPC v. INEC (2011)18 NWLR (Pt. 1279) 493 at 544 – 545 SC. The Petitioners are calling on the Tribunal to cancel all theunlawful votes credited to the 1st and 2nd Respondents by the 3rd Respondent. PW1 testified inparagraph 39 of his deposition that:-

“39 – if the results credited to the 1st and 2nd Respondents in the polling units of the wards andLocal Governments challenged by the Petitioners in this petition are cancelled, the Petitionerswill have majority of the lawful votes case at the election and will also have not less than 25percent votes in 2/3rd of Osun State.”

Since it is not the case of the Petitioners that the 1st and 2nd Respondents did not score lawful votesin any of the areas being challenged, they have by implication conceded that these Respondentsscored some lawful votes in these areas. The burden is therefore on the Petitioners to determinewhich are unlawful votes amongst the votes credited to the 1st and 2nd Respondents. It is only whenthey have done this that the Tribunal will be in a position to deduct those unlawful votes from the totalvotes credited to the 1st and 2nd Respondents and determine the winner. This was the decision in thecase of Nadabo v. Dubai (2011) 7 NWLR (Pt.1245) 155 at 177, where the Court held thus:-

“ I think when a Petitioner is alleging that the Respondent is not elected by majority of lawfulvotes, he ought to plead and prove the votes cast at the various polling stations, the votesillegally credited to the winner, the votes which ought to have been credited to him and alsothe votes which should be deducted from that of the supposed winner in order to see if it willaffect the results of the election. When this is not done, it will be difficult for the Court toeffectively address the issue.”

In paragraph 22 of the petition, the Petitioners have stated the votes credited to the 1st Respondent ineach of the Local Government Areas in contention. They have also through their “expert” witnessesscanned and analyzed all the ballot papers used in the affected areas during the election. They aretherefore in a position to lead evidence as to the unlawful votes credited to the 1st and 2nd Respondents.At paragraph 5.1 of Exhibit 243, which is the report of the physical inspection and statistical analysisof electoral documents used at the election issued by PW15, there is a table of summary of thealleged irregularities. From this summary, the Petitioners are contending that 265, 180 votes out ofthe 394,684 votes credited to the 1st and 2nd Respondents are unlawful votes. Interestingly they havealso found 147,072 unlawful votes credited to them. That if these unlawful votes are deducted fromthe total votes credited to the 1st and 2nd Respondents, these Respondents will have 129,504 validvotes. If their unlawful votes are deducted from 292,747 votes credited to them at the end of theelection, they would have 145,675 valid votes, thus putting them in the lead with 16,171 votes.

It however became clear during the cross-examination of PW15 by the Respondents that hein his report dealt with areas where there were no complaints from the Petitioners. In other words,Exhibit 243 covers a wider scope than that envisaged by the petition. Table 1 of Exhibit 242 listspolling units allegedly challenged by the Petitioners. On pages 2 – 4 of Table 1 is the list of all thepolling units in Ayedaade Local Government. Under cross-examination by counsel to 1st Respondent,his attention was drawn to pages 20 – 26 of the petition as regards Ayedaade Local Government.Only 3 wards namely Otun Balogun ward 02, Olufi ward 03 and Otun Olufi ward 04 are covered bythe petition. Meanwhile Table 1 pages 2 – 4 relates to all the wards within the Local Government.Similarly, his attention was drawn to pages 26 – 29 of the petition regarding Atakumosa East LocalGovernment Area. He concedes that:-

“On pages 26 – 29 of the petition, only 6 wards are being challenged while table 1 lists all thewards. Pages 29 – 34 of the petition relates to Boripe Local Government. In my report I listedall the polling units in all the wards, but 5 wards are being challenged in the petition. In EdeNorth contained on pages 34 – 38 of the petition, my report covers all the units in this LocalGovernment.”

Table 2 in Exhibit 243 lists polling units with registered voters above 300 which do not have votingpoints. According to PW15, he relied on Exhibit 186, the Manual in reaching his conclusion that ifthere are more than 300 voters in a polling unit and no voting points are created, the votes will beinvalidated. He referred to page 5 of the Manual which contains an introductory statement by ProfessorAbubakar Momoh. This statement is to the effect that –

“This Manual draws on the various modifications introduced by the commission particularlyon accreditation and voting procedure at polling units, as well as creating Voting Points inpolling units with more than three hundred registered voters.”

We however do not see this as a legal requirement that a voting point must be created where thenumber of registered voters exceeds 300. There is no law stipulating that where registered votersexceed 300 and no voting points are created, the votes cast in such a polling unit should be cancelled.Even the said manual itself does not state so. Based on this erroneous assumption, PW15, in table2 says 252, 030 votes accredited to the 1st and 2nd Respondents are affected, while 139, 789 of thevotes credited to the Petitioners are affected. Under cross-examination by counsel to 2nd Respondent,PW15 denies any errors in his table 2. His attention was then drawn to page 32 of table 2; unit 006in Osogbo Local Government Area (ward 4 Ataoja D – Union Bapt. School) where there are 766registered voters. He then conceded –“I have seen Exhibit 151G where 2 Voting Points were created where the voters were 766 forOsogbo unit 006. I have seen Exhibits 151m (xviii – xix) they are voting points created.”

In response to a question by counsel to 3rd Respondent he said –“I have seen ward 4 unit 11 on Exhibit 3. All that is contained in table II of my report are pollingunits without voting points. I have seen voting points on Exhibit 3 but they are not based onthe cut-off mark of 300. I have seen the documents given to me (these were 24 copies of CTCof form EC 8A and EC 8 VP for Boripe Local Government which are in evidence as Exhibits244 and 244A respectively). I agree that voting points were created in those polling units.”Apart from the absence of any legal basis for the conclusion of PW15, he has by the evidence elicitedunder cross-examination conceded that Table 2 of his report does not contain accurate information.

What we expected to see in his table 2 is the list of polling units where Voting Points ought to havebeen created but were not so created. Rather it contains the list of all polling units where registeredvoters exceed 300. His table 2 is the same as table 6 of Exhibit 342. The source of table 3 in thereport is Form EC 8As and Duplicate Copies. Table 3 is a comparison of forms EC 8A – CTC andtheir counter-part duplicate copies issued to the Petitioners’ agents. According to PW15, 9,578 votescredited to APC and 4,814 votes credited to PDP are affected by this comparison. In table 3, PW15has shown alleged irregularities by comparing CTC of forms EC 8A and their duplicate copies. Thetable showed that the CTCs of all the forms EC 8A examined were stamped. As stated earlier, thesecertified copies were made from the original of forms EC 8A which the Respondents’ witnesses saidwere duly stamped. This report is a confirmation of this assertion by the Respondents. While table3 indicates that duplicate copies of forms EC 8A were not stamped, it also indicates that there werediscrepancies in the duplicate copies, that there were alterations in some duplicate copies, whilesome duplicate copies were not signed. In the case of Irewole, Ikire ‘C’ ward 3 unit 009 it is statedthat there are different entries on CTC of form EC 8A and the duplicate copy. Polling unit 009 isIjadubi Open Space. The complaint in this unit as per the complaint in the petition is that the result ofthe election was not recorded as required by law and form EC 8A for the unit was also not stamped.While PW15 has noted some discrepancies in the CTC of form EC 8A and their duplicate counter-part, he conceded under cross-examination by Prof. Osinbajo SAN for 2nd Respondent that –“I have seen table 3 of my report. I did not point out any discrepancy in the result stated onthe original and duplicate of form EC 8A.”Table 5 in Exhibit 243 seeks to show areas where the total votes cast are more than the voters on thequeue. For instance, in ward 3 unit 016 of Oriade Local Government the table shows that whereasthere were 44 voters on the queue, the total votes cast was 54. The Petitioners are implying thatextra votes were “imported.” While APC had 306 of such “imported” votes, PDP had 163. Theevidence of all the witnesses for the Petitioners and the Respondents is that all accredited voterswere allowed to vote. It is also their evidence that the accredited voters were told to go and comeback at 12 noon when voting would commence. It is however not their evidence that accreditedvoters who were not on the queue at the time of counting were not allowed to vote. All that is requiredof an accredited voter is to ensure that he casts his vote before voting closes. What is clear from thetotality of the testimony of PW15 is that the alleged unlawful votes include votes from wards and unitsnot in contention in the petition. With the inclusion of votes from areas not in dispute, his over- allsummary cannot be relied upon as representing the true situation.

Upon a calm consideration of the totality of Exhibit 243, we entirely agree with the Respondentsthat it has been so discredited under cross-examination that no reasonable Tribunal can rely on it tohold that the votes credited to the 1st and 2nd Respondents are unlawful votes.

Similarly, PW38 another “expert” witness for the Petitioners admitted under cross-examinationthat his report covers more grounds than the complaints of the Petitioners. In response to questionsfrom counsel to the 1st Respondent PW38 said:-

“Table 1 contains a list of 1842 polling units which are being contested. Our analysis in the 6tables are related to the 1842 polling units - - - - Our analysis was not based on only 912polling units which you say are being contested in the petition. - - - - - Having seen paragraph1.2 of my report which restricted me to contested polling units, I agree that I extended mymandate by covering all the polling units in the Local Government Areas in issue.”He was however quick to add that this will not affect the overall result.Clearly, the report which is not a true reflection of the complaints of the Petitioners before this Tribunalcannot be relied upon in concluding that votes credited to the 1st and 2nd Respondents in all the wardsin the Local Governments in contention are unlawful votes.Table 2 of Exhibit 342 contains a list of polling units where votes recorded for PDP on form EC 8A areless than the number of ballot papers given by the 3rd Respondent for inspection and scanning. Forinstance in Atakumosa East ward 1 unit 1, while the ballot papers scanned shows that PDP scored172 votes, form EC 8A for this unit indicates that PDP had 165 votes, thus short changing PDP by 7votes. In Irewole, Ikire ward II units 21, 22 and 23, the scanned ballot papers show that PDP got20,107 and 67 votes respectively from these units, whereas the EC 8A forms from these units doesnot indicate any scores for PDP, thus short changing PDP by about 194 votes from these units.When confronted with the relevant results from these units under cross-examination by counsel to2nd Respondent, PW38 said:-

“I have seen ward 11, units 21, 22 and 23 of Irewole Local Government on table 2. No entriesare indicated for PDP in form EC 8A. My conclusion in these units is not correct.”But even assuming that there are no mistakes in table 2 of Exhibit 342, it is not even the testimony ofPW38 that if all these votes not recorded for the 2nd Petitioner on forms EC 8A are added together tothe result returned for the 2nd Petitioner, he would have majority of lawful votes.

Table 3 of Exhibit 342 contains a list of polling units where votes recorded for APC on formsEC 8A are more than ballot papers given to the Petitioners by INEC for inspection and scanning withAPC votes. For instance in Atakumosa East, ward 2, unit 2, scanned ballot papers show that APChad 232 votes, while on form EC 8A, 233 votes were scored for APC, thus giving it an extra vote.Here again, it is not the case of the Petitioners that if these “extra votes” are deducted from the totalscores announced for APC, it would have less votes than those scored by the Petitioners.

Tables 4 and 5 of Exhibit 342 contain list of polling units where INEC provided more or lessballot papers for inspection and scanning respectively, than the number of ballot papers recorded onform EC 8A. When confronted with table 4 by counsel to 2nd Respondent, he denied false entriestherein. His attention was then drawn to some entries on the said table 4. His response:-“By this table 4, the total votes cast for Atakumosa East are 222 and the difference in ballotpapers are 1. For unit 003, the total votes cast are 258. In unit 001 the total votes cast is 251.In Ilesha East, unit 004, ward 2 the total votes cast is 200. I have seen Exhibit 55A, item 9, thetotal votes cast is 202. I therefore agree that my entry of 200 votes as against the 202 votes iswrong. For Atakumosa East, ward 02, unit 005, the entry for total votes cast is 222. I haveseen (Exhibit) 4C item 9, the total votes cast is 223. I agree that here again my entry is false.On table 5, Ede North ward 4 unit 004, the entry for total votes cast is 256. In Ilesha East ward10 unit 006, the entry for the votes cast is 215. I have seen Exhibit 63(vi), the total votes castas indicated therein is 219. Here again my entry is false.”Responding to similar questions from counsel to 3rd Respondent, PW38 said:-“I have seen Exhibit 134m. I have also seen my table 5 for ward 5 of unit 009 of OlarundaLocal Government. The total votes cast is stated to be 407 but 409 votes are indicated onitem 9 of Exhibit 134m.”Testifying further, under cross-examination by counsel to the 3rd Respondent, the witness said theyused the computer as a tool into which they entered facts found on the documents to produce theirreport. He however concedes that:-“ - - - the primary source must be correctly entered into the computer. The data we used is thesame. But if the data used in our report is not the same with the primary source then ourreport will not be correct.”The Respondents have shown by their cross-examinations that the information from the primarysources which in this case were the ballot papers and forms EC 8A series, and voters register werenot correctly entered into the computer. We therefore hold as conceded by PW38 that his reportcannot be correct. The report of PW38 cannot also be correct for the further reason that he did notscan all the ballot papers used for the said election in the 17 Local Government Areas as directed bythe Petitioners. He confirmed this fact in response to questions from counsel to the 1st Respondentwhen he said:-“I confirm that yesterday the Petitioners tendered sacks of ballot papers for the 17 LocalGovernments used for the election of 9/8/14. I recall saying there were 4 bags for Ilesha EastLocal Government. It is correct that I opened only one of the bags. I took out one packet outof the several packets in the bag. I did not open any other bag or sack relating to the other

Local Governments in accordance with the directives of my counsel.”The fact that he did not scan all the ballot papers given to him is further confirmed by the fact that hedid not indicate in any of his tables the serial numbers of the ballot papers so scanned despite hisconcession that “INEC ballot papers have serial numbers.” It cannot therefore be said with certaintythat the ballot papers so scanned were those used for the election in contention.

Clearly Exhibits 243 and 342 have not established the facts they were meant to establish.That is that unlawful votes were credited to 1st and 2nd Respondents.

The Petitioners have pleaded in paragraph 56 of their petition that a good number of theiragents at the polling units who were present at the conclusion of the election declined to sign theresult sheets in manifestation of their displeasure with the conduct of the election, but lamentablydiscovered that some other persons purportedly signed the said results for the Petitioners. It isexpected of the Petitioners, in proof of this assertion, to have brought the agents from those pollingunits to testify to the effect that the signature on the result sheets from their respective units does notbelong to them. The few agents that testified on behalf of the Petitioners confirm signing form EC 8Ashown to them under cross-examination by the Respondents. None of them testified in chief thatthey were forced to sign the result sheets. The Petitioners have therefore failed to prove theirallegation.

To show that invalid votes were counted and recorded in favour of the 1st and 2nd Respondents,the Petitioners say they would request the Tribunal to do a physical examination and recount of theballot papers used at the election in the affected areas. They subpoenaed the 3rd Respondent whoproduced all the ballot papers in issue and they tendered them through PW38. All the said ballotpapers are in evidence before the Tribunal as Exhibits. Unexpectedly, the Petitioners did not call onthe Tribunal to do the physical examination and recount of the ballot papers. Why have the Petitionersdecided to abandon this noble cause which would have clearly shown and proved that invalid voteswere counted in favour of the Respondents as alleged. We accordingly invoke section 167(d) of theEvidence Act, 2011 and hold that the Petitioners did not do so because they know that the outcomewould not have supported their contention but would have rather strengthened the case of theRespondents. With these ballot papers and voters registers before the Tribunal, the Petitionerswere in a good position to show the Tribunal through these Exhibits their allegations of over votingand allocation of votes to the 2nd Respondent. This they did not do.

Page 6 of the final written address of the 1st Respondent contains a table, showing amongstother details the total votes remaining for APC and the total votes remaining for PDP. The total votesremaining for APC are stated to be 234,971, while the total votes remaining for PDP are stated to be219,189. Counsel on behalf of the Petitioners, relying on this table in his final oral submission beforeus contends that this is an admission by counsel to the 1st Respondent that the lawful votes scoredby the 1st Respondent at the election are 234,971 and not 394,684 declared by the 3rd Respondent.That their votes of 292,747 declared by the 3rd Respondent being higher than the valid votes of the1st Respondent, the Petitioners ought to have been declared winners of the said election. Relying onthe case of Okonkwo & Ors. V. Kpajie & Ors. (1992) NWLR (Pt226) 633 amongst several othercases, counsel submits that this admission by counsel binds the 1st Respondent. We do not howeveragree with the submission of Petitioners’ counsel that the table amounts to an admission that the 1st

Respondent scored 234,971 valid votes. We say this in view of paragraph 4. 2.4 of the final address,where counsel submits:-

“It is submitted, assuming without conceding, that it is taken for the purpose of argument,that the Petitioners established cases of non-compliance in all the 914 polling units for whichit tendered forms EC 8A and the votes of the 1st and 2nd Respondents and the Petitioners inthe 914 polling units as recorded in those 914 forms EC 8A are deducted, the 1st Respondentwill still have majority of lawful votes cast (that is, 234,971) and have one quarter of totalvotes cast in all the 30 Local Governments in the State to be declared the winner of theelection.”All that the 1st Respondent has done is a simple mathematical deduction. That is that even if theTribunal agrees with the Petitioners that the 159,713 votes recorded for the 1st Respondent in all the914 polling units in form EC 8A presented to the Tribunal are illegal votes and thus deducted fromthe total votes of 394,684 scored by the 1st Respondent in all the 30 Local Government Areas in theState, he would still have valid votes of 234,971. And if a similar exercise is done for the 1st Petitionerand 73,558 of illegal votes are deducted he would have valid votes of 219,189. Thus still making the1st Respondent the person with the highest number of valid votes. We do not appreciate the argumentof Petitioners’ counsel that such a deduction should not be made from the votes credited to them bythe 3rd Respondent. This is because they have not shown that all the votes credited to them ascontained on forms EC 8A in all the 914 polling units are valid votes.

On the whole, we do not find issue three proved. It is accordingly resolved against thePetitioners.

In conclusion, we must place on record our deep appreciation to all learned counsel who hadappeared for the parties at one time or the other in the course of these proceedings. This Tribunalhas had the priviledge of appearances of most knowledgeable senior advocates and other learnedcounsel, who throughout the proceedings of this Tribunal extended due humility to the Tribunal andconducted themselves in the best tradition of the legal profession despite the pressure brought onthe parties and this Tribunal in view of the need to fast track the trial of the petition in order to meetthe constitutional time frame.

In the final analysis, our judgment is that, from the totality of the evidence led before us in thispetition, and from the findings we have made in the foregoing, the Petitioners have clearly failed todischarge the burden placed on them by law, to establish that the result declared by the 3rd Respondentwith respect to the polling units being questioned in all the 17 Local Government Areas of OsunState, with respect to the Governorship election held on 9th August 2014, were invalid or void byreason of corrupt practices and or substantial non compliance with the provisions of the Electoral Act2010 (as amended); or that it was the 1st Petitioner who scored the majority of lawful votes cast atthe said elections, to be entitled to be returned as winner thereof.

In other words, the Petitioners have failed to lead relevant, credible and or cogent evidenceto sustain all the grounds upon which they questioned the declaration and return of the 1st Respondentas the duly elected Governor of Osun State with respect to the Governorship Election conducted inthe State.

Quite clearly, the 1st Respondent won the majority of lawful votes cast in scoring 394,684votes as against the 1st Petitioner’s 292,747 votes, and having satisfied all Constitutional requirements,we hereby affirm the declaration and return of 1st Respondent by the 3rd Respondent as the dulyelected Governor of Osun State.

Consequently, we hereby refuse all the reliefs sought in the petition and the petition thereforefails and it will be and is hereby dismissed.

In the interest of peaceful co-existence and reconciliation amongst all contending parties, weshall make no order as to costs.

This is our judgment.………………………………..

HON. JUSTICE ELIZABETH NGUVEREN KPOJIME(Chairman)

………………………………..HON. JUSTICE VINCENT IGOMETI OFESI

(Member)

……………………………….. HON. JUSTICE ABUBAKAR IDRIS KUTIGI

(Member)

Published by JUSTICE NOW FOUNDATION, Odiolowo St., OSOGBO, OSUN, NIGERIA