TALLEN & ORS V JANG

TALLEN & ORS V JANG


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON SATURDAY, THE 10TH DAY OF DECEMBER, 2011


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

CITATION:

Before Their Lordships:

CLARA BATA OGUNBIYI, JCA
MASSOUD ABDULRAHMAN OREDOLA, JCA
PHILOMENA MBUA EKPE, JCA


BETWEEN

DAME PAULINE K. TALLEN
ARC. PAM DUNG GYANG
LABOUR PARTY (LP)
(APPELLANTS)

AND

DAVID JONAH JANG
IGNATIUS LONGJAN
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISSION
(RESPONDENTS)


PRONOUNCEMENTS


A. PRACTICE AND PROCEDURE
1. Address of Counsel – How the address of a counselor cannot take the place of evidence
Whether the address of counsel can take the place of evidence

Needless to restate the well standing principle of law that an address of counsel no matter how sound, convincing or brilliant, it can never take the place of evidence. I am afraid but must clearly and emphatically say that the Appellants counsel had failed to address the need to have ensured the link which was only possible through the witnesses who testified on their behalf and no more. Per OGUNBIYI, JCA. read in context

B. EVIDENCE
2. Admissibility of Documents – How there is difference between admissibility of documents and ascription of probative value and when probative value can be ascribed
Whether there is a difference between admissibility of documents and ascription of probative value to same

It is relevant to restate that there is a world of difference between admissibility of documents and ascription of probative value to same. The Court or Tribunal would only ascribe probative value to documents that are properly demonstrated before it, by parties laying the nexus between such documents to the evidence of their witnesses which the petitioners have failed to do in the instant case. Per OGUNBIYI, JCA. read in context

C. ELECTION PETITIONS
3. Allegation of Non-Compliance – Factors to be established to succeed in making an allegation of non-compliance in an election and who the onus lies on
The burden of proof on a party who alleges the existence of violence, other corrupt practices, and non-compliance with the provisions of Electoral Act in conduct of election

Also in Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 399, The Apex Court held and said:

“A petitioner must first allege and adduce some evidence of the existence of violence and other corrupt practices in an election to subject the election to the scrutiny of the Court. Where no allegation is made against an election and no evidence is adduced on the conduct of the election, the presumption of regularity ensures in its favour.”

Relevant also to the determination of this issue is the provision of Section 139 (1) of the Electoral Act 2010 (as amended) which provides thus:

“139(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act, and that the non-compliance did not affect substantially the result of the election.”

The above provision has been given judicial interpretation in a number of cases including Buhari v. Obasanjo (supra) where the apex Court per Ejiwunmi JSC, held and said:

“…The onus is on the Appellants to establish first, substantial non-compliance and secondly, that it did or could have affected the result of the election. It is after the Appellants have established the foregoing that the onus would have shifted to the Respondents to establish that the result was not affected.” Per OGUNBIYI, JCA. read in context

4. Burden of Proof – How he who asserts must prove and when the burden shifts
On whom lies the burden of proof and when is it discharged

The law is well pronounced and trite that he who asserts has the burden to prove. There can only be the shifting of the burden therefore after the initial burden of proof must have been discharged. See the case of N.B. Ltd v. D.C. Holdings Ltd (2004) 13 NWLR 436 at 462 and Chime v. Ezeq (2010) 6 EPR 353.

At this stage therefore, the Respondent will have no burden to discharge unless and until the Petitioner establishes a prima facie case then the burden would shift onto the Respondent to rebut in a civil matter. To the contrary however, the burden remains constant and does not shift where the allegation is of a criminal nature in which case it must remain with the Petitioner to prove the offence beyond reasonable doubt. Per OGUNBIYI, JCA. read in context

5. Burden of Proof – The need for the party that asserts to succeed on the strength of his case
Whether a party who asserts must succeed on the strength of his case

Moreover and with the legal position that a party who asserts must succeed on the strength of his case and not the weakness of the defence, same stands to be interpreted that where the Petitioners/ Appellants had failed to make out their case on credible admissible evidence, there is no burden placed on the Respondent who would not need to call any witness, in the circumstance. Per OGUNBIYI, JCA. read in context

6. Cross-Examination – How evidence adduced under cross-examination could constitute evidence in support of the case
Whether evidence elicted under cross-examination can constitute evidence in support of the case or defence of a party

The case of Akomolafe & Anor. V. Guardian Press Ltd & 3 Ors. (2010)1 SC (Pt. 1) 58 at 74 is apt wherein W.S.N. Onnoghen JSC pronounced on evidence adduced under cross examination and which could constitute evidence in support of the case or defence of that party. Per OGUNBIYI, JCA. read in context

7. Documentary Evidence –The need for a party to relate documents to the part of his case that such documents tackle
The duty of a party with regard to documents tendered by him

The law is clear as pronounced in the cases cited earlier in this judgment that a party relying on bundles of documents in proof of his case must specifically relate such documents to that part of his case in respect of which the bundles of documents were tendered. This responsibility does not fall on the Court as if would be aiding and conducting a case on behalf of a party who has failed to discharge the onus placed on him. Per OGUNBIYI, JCA. read in context

D. COURT
8. Duty of Court – What the court is not permitted to do
Whether it is permitted for the Court, on its own and in the comfort of its recess, to engage in sorting outa party’s case

It is not permitted by our system of adjudication that the Court should on its own and in the comfort of its recess engage in sorting out a party’s case for purpose of sound footing. Per OGUNBIYI, JCA. read in context

9. Judge – How the Judge isn’t permitted to carry out the roles to be performed by a party in the open court in the recess of his Chambers
Whether it is right for a judge to do in the recess of his chambers, what a party is required to do in canvassing his case in the open court

This Court per Salami JCA (as he then was) for instance in the case of Naga v. Registered Trustees Recreation Club (2004) FWLR (Pt. 190) 1360 had this to say:

“The preservation of the principle is that it is infraction of derogation of the rule of fair hearing for the judge to do in the recess of his chambers, what a party is required to do in canvassing his case in the open court. The Court by so acting has only sacrificed its impartiality. It has equally turned the whole proceedings from adjudicatory to investigatory. It is therefore, not the business of the Court to wield through exhibit 1, the constitution of the defendants to ascertain which provision (if any) assists or supports the plaintiff …”

Also in the case of Onmeje v. Otokpo (1999) 1 NWLR (Pt. 600) 578 at 5 this Court perChukwuma-Eneh, JCA (as he then was) held and said:

“The other question for consideration relates to the Tribunal’s refusal to examine and use Exhibits P22 and P23 wherefore, learned Appellants’ counsel has submitted that this was done under misconception of the case of Oribudo & Ors. v. Akibu (1992) 7 SC 60 at 62. These exhibits were ballot papers etc. For Akpoge-Ogbilolo ward and were tendered by the PW1 in what looked like dumping them on the Court as no attempt was made by evidence as to what use the court was to make of them hence the Tribunal found that apart from numbering it with these exhibits, if was not its function to ‘examine the voters register, the ballot papers etc to see whether there were over voting or other irregularities.’ It is not the duty of the Court to go on a voyage of its own discovery. No authority was cited to the petitioners stand in this respect. It is my view that having tendered these exhibits, it was incumbent on the Petitioner to lead evidence as to the use to be made of then. Without taking that step, the tribunal was perfectly right in refusing to be drawn into examining them.” Per OGUNBIYI, JCA. read in context

E. ACTION
10. Pleadings – The rule of pleadings that pleadings not supported by evidence are deemed abandoned and its exceptions

The learned senior counsel cited plethora of authorities wherein pleadings not supported by evidence are deemed abandoned as clearly pronounced in the case of Ojoli v. Kamalu (2005) 18 NWLR (Pt. 958) 523 per Tobi JSC. Heavy reliance was also made on the case of Aregbesola v. Oyinlola (2010) 9 NWLR (Pt. 1253) 458 at 596 amongst others which all go to confirm that pleadings without evidence is deemed abandoned. The question of pleadings without evidence is not on issue of contention but rightly so and is trite law in nature. The question to pose however whether the 4th Respondent indeed did abandon its pleadings as is alleged by the Appellants’ counsel and in line with the authorities he cited? However and despite the general acceptable principle of law regarding pleadings as rightly submitted by the learned Appellants’ counsel the end of the matter is not always foreclosed with the general rule. In other words as rightly also submitted by the learned senior counsel to the 1st – 3rd Respondents there are also exceptions to the general rule which are relevant of note where the following circumstances apply as:
(a) Evidence led during cross examination on issues joined is as valid and authentic as evidence procured from examination in chief.
(b) Evidence elicited from a plaintiff’s witness under cross-examination forms part of the case for the defence. The defence can therefore legitimately rely on such facts in establishing his case.
(c) A party seeking nullification of an election must succeed on the strength of his case and not on the weakness of the Respondents case.
See the case of Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 590 wherein Edozie JSC held and said:
“Evidence procured from cross examination is as valid and authentic as evidence procured from examination in chief. Both have the potency of relevancy, and relevancy is heart of admissibility in the law of evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination in chief or cross examination.”

Also in Ayoola v. Yahaya (2005) 7 NWLR (Pt.923) 122 at 140 the apex Court further said:

“Evidence elicited from a plaintiff’s witness under cross examination forms part of the case of the defence. Therefore where counsel by skillful application of the weapon of cross-examination is not only able to destroy the case of the defence, he can legitimately rely on such facts in establishing his case.” Per OGUNBIYI, JCA. read in context

11. Presumption of Law – The attitude to be given to public documents by the Tribunal and the provision of the law on the presumption of their correctness and regularity
The presumption as to public document

The documents are public in nature and being statutory forms, the Tribunal is bound to look at them for purpose of recognizing them as such, and therefore obviously speak for themselves in that context only. By the provision of Section 150 of the Evidence Act, the presumption of their correctness and regularity is made. Per OGUNBIYI, JCA read in context

12. Presumption of Law – The rebuttable nature of the presumption of law that election results are correct and who the burden is placed on to rebut
The presumption as to election result and how the presumption can be rebutted

In the case of Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 354. The apex Court per Niki Tobi held and said:

“Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who claims the correctness and authenticity of the return to rebut the presumption.”

The burden is therefore squarely on the Petitioners/ Appellants to rebut this presumption by credible and cogent evidence. This requirement has been well pronounced in plethora of judicial authorities for example in the case of Yar’adua v. Barda (1992) 3 NWLR (Pt. 231) 638 at 642 wherein it was held that:

“The only way a petitioner can question the lawfulness of the votes cast at an election is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by individuals. For example, if a petitioner wants to prove over-voting, he needs a witness to State where the over-voting took place. The documentary evidence of over-voting will be the voter’s register showing accreditation and the form EC8A. Those pieces of documentary evidence can be tendered from the bar during pre-hearing or during the course of the trial. The witness giving oral evidence would refer to the specific exhibits already tendered to cement the case.” Per OGUNBIYI, JCA. read in context


LEAD JUDGMENT DELIVERED BY OGUNBIYI, JCA


This is an appeal against the judgment of the Plateau State Governorship Election Tribunal, sitting in Jos (coram Hon. Justices Joseph Jella, Olayinka D. Afolabi, Benson Ogbu) delivered on the 31st day of October, 2011, wherein the Tribunal dismissed the Petitioners/Appellants’ petition.
Being dissatisfied with the said judgment, the Appellants have appealed against some before this Court. The background facts leading to the petition would be relevant wherein their petition duly filed on the 19th day of May, 2011, the Petitioners challenged the return of the 1st Respondent as the Governor of Plateau State of the Gubernatorial Election held on the 26th day of April, 2011.

The principal and/or main prayer of the Petitioners, inter alia are:

(a) That votes recorded and/or returned for the 1st – 3rd Respondents in the Local Government Areas, set out in paragraph 15 of the petition, do not represent lawful votes cast in the said Local Government Areas in the Plateau State Governorship election held on 26 April, 2011 as same were vitiated by substantial non-compliance with the mandatory statutory requirements of the Electoral Act 2006 which non-compliance substantially affected the validity of the said election such that the votes credited to the 1st to 3rd Respondents ought to be nullified as unlawful votes and is countenanced in determining the winner of the elections.

(b) That votes recorded and/or returned in the said Local Government Areas and some wards in some Local Government Areas for the 1st Respondent, do not represent lawful votes cast in the said Local Government Areas and stated wards in the plateau State Governorship election held on 26 April, 2011 and as having been obtained in vitiating circumstances of substantial non-compliance, violence and malpractices which substantially affected the validity of those votes;

(c) That the said David Jonah Jang, the 1st Respondent, was not duly elected by a majority of lawful votes cast in the Plateau State Governorship election held on April 26, 2011 and that his election is void:

(d) That Dame Pauline K. Tallen, was duly elected and ought to have been returned having scored the highest number of votes cast in the Plateau State Governorship Election held on April 26, 2011 and having satisfied the requirements of the Section 179 Constitution of the Federal Republic of Nigeria, 1999 and the Electoral Act, 2010 as amended.

(e) That the 1st Petitioner be declared validly elected or returned.

In the Petitioners’ alternative prayers, the Petitioners prayed as follows:

(a) That the Plateau State Governorship Election held on April 26, 2011 is void on the ground that the election was not conducted substantially in accordance with the provisions of Part IV of the Electoral Act, 2010 as amended:

(b) That the said election was vitiated by substantial non compliance with the mandatory statutory requirements which substantially affected the validity of the said elections that none of the candidates in f he said election can be validly returned as having validly won the said election;

(c) That the Plateau State Governorship Election held on the 26th of April, 2011 be nullified or cancelled and the 3rd Respondent be directed to conduct fresh elections for the office of the Governor of Plateau State;

(d) Costs of this Petition.

In response to the petition, the 1st and 2nd Respondents filed a joint reply dated 3rd day of June, 2011. The 3rd Respondent through its counsel filed a reply also dated 3rd day of June, 2011, while that of the 4th Respondent was dated 16th day of June, 2011.

At the hearing of the petition, the Petitioners/Appellants in proof of their case called a total number of sixty four (64) witnesses and tendered several documentary evidence which were all marked Exhibits P1 to P992 and also Exhibit P993. The 1st to 3rd Respondents as evidenced of Page 3207 of the record of appeal, did call a total number of forty (40) witnesses on their behalf. No witness was however fielded by the 4th Respondent.

At the end of the trial and after address of counsel, the Tribunal in its judgment delivered on the 31st day of October, 2011, dismissed the Petitioners/ Appellants’ petition.

The Appellants/Petitioners being dissatisfied with the said judgment of the trial Tribunal, have brought the present appeal by filing notice and grounds of appeal on the 4th November, 2011 of pages 3349 – 3358 of the record of appeal and containing ten grounds of appeal with their particular.

In accordance with the Practice Direction issued by the President of the Court of Appeal, briefs were filed and exchanged between the parties. The Appellants’ brief was dated and filed 30th November, 2011 while that of the 1st – 3rd Respondents was dated and filed on the 5th December, 2011. On the 7th December, 2011 when the appeal was called up for hearing all counsel adumbrated on their respective briefs of arguments with the Appellants’ counsel Mr. Kola Awodein SAN urging that the appeal be allowed. To the contrary however, the learned 1st – 3rd Respondents’ counsel Prince L.O. Fagbemi SAN urged that the appeal be dismissed as locking in merit.

Judgment the subject matter of this appeal was delivered on the 31st day of October, 2011 and by the provision of Section 285(7) of the Constitution 1999 as amended, it is mandatory that the appeal be heard within 60 days of the delivery of the judgment for the appeal to have the force of law.

The interlocutory appeal CA/J/EP/238A/2011 which was heard on the same day with this main appeal CA/J/EP/238/2011 would be lapsing on the 11th December, 2011. Judgment in the former was therefore reserved for pronouncement on 9th December, 2011 to ensure that it is not caught up with expiration of time and became extinct. Consequently therefore and for purpose of validity, the judgment in the main appeal would also be pronounced upon in accordance with Section 287(8) while the reasons for arriving thereat would be given at a later date to be communicated to parties.

From the ten grounds of appeal raised, the Appellants have distilled four issues for determination. The 1st – 3rd Respondents’ four issues were also formulated in line with those of the Appellants. The 4th Respondent as earlier indicated did not however file any brief of argument.

For the determination of this appeal, I shall adopt the four issues distilled by the parties which are apt and appropriate for the disposal of the appeal and they are as follows:

i. Whether the Tribunal was right in refusing to examine, act on, and give probative value to the Petitioners Report of inspection of electoral documents Exhibit P993. (Grounds 4, 11, 12, 13, 14, 15, 16)

ii. Whether the Tribunal was right in holding that the Petitioners/Appellants dumped the CTC’s of the electoral materials Exhibits P1-P992 on the Tribunal” (Grounds 1, 2, 3, 5, 7, 8, 10, 17)

iii. Whether the Tribunal was right in not treating the 4th Respondent as having abandoned its pleadings and admitted the case made by the Petitioners/Appellants. (Grounds 20 and 23)

iv. Whether the Honourable Tribunal was right in dismissing the Appellants/Petitioners Petition on the ground that they have not proved their case to warrant the grant of the reliefs sought. (Grounds 6, 9, 18, 19, 21, 22)

Issue 1 questions the propriety of the Tribunal in refusing to examine, act on, and give probative value to the Petitioners’/Appellants’ report of inspection of Electoral documents Exhibit P993.

Submitting to substantiate the said 1st issue raised, the learned senior counsel for the Appellants argued the Tribunal having failed in its duty to dispassionately consider the exhibits tendered before it including the report of inspection of the materials used in the conduct of the election by the 4th Respondent (Exhibit P993) as well as the oral evidence of PW64, and to attach probative value thereon. The learned counsel in further submission argued that the findings of the Tribunal were perverse and clearly demonstrated an abdication of its constitutional duty of adjudication in failing to evaluate the pieces of evidence before it on the report of the analysis of the electoral documents as contained in Exhibit P993. The counsel therefore urged the Court to so hold.

On behalf of the 1st – 3rd Respondents however it was submitted in response that a person who claims to have inspected INEC documents must be a person who did and in fact physically examine them of their designated abode and not a person who was not present in flesh and blood. On the one hand, the learned senior counsel for the Appellants has demonstrated heavy reliance on the Exhibits P1 – P993 and strenuously argued that his clients’ case was built on documentary evidence and hence the reason why the appeal should therefore be found in their favour. On the other hand however, the learned 1st – 3rd Respondents’ counsel had argued that the Appellants having failed to establish the link between the said exhibits and the testimonies of their witnesses, the documents therefore have no probative value.

The law is well pronounced and trite that he who asserts has the burden to prove. There can only be the shifting of the burden therefore after the initial burden of proof must have been discharged. See the case of N.B. Ltd v. D.C. Holdings Ltd (2004) 13 NWLR 436 at 462 and Chime v. Ezeq (2010) 6 EPR 353. At this stage therefore, the Respondent will have no burden to discharge unless and until the Petitioner establishes a prima facie case then the burden would shift onto the Respondent to rebut in a civil matter. To the contrary however, the burden remains constant and does not shift where the allegation is of a criminal nature in which case it must remain with the Petitioner to prove the offence beyond reasonable doubt.

The bone of contention in the 1st issue raised relates to the document Exhibit P993 which was the report produced by the Petitioners/Appellants inspection team and supposed to be the report of the result of the analysis of the electoral materials. The Petitioners/Appellants grouse therefore centered on the refusal by the Tribunal in accepting and recognizing the said report Exhibit P993 which was a product of Exhibits P1-P992 for purpose of proving that there was falsification of those results as they affect the scores credited to the 1st – 3rd Respondents in the election. Heavy reliance was also made on the evidence of PW63 and PW64. At pages 3329 – 3330 of the record however, the learned Tribunal had this to say:

“The PW63 and PW64 who testified as having played one role or the other in the production of this report – Exhibit P993 did not demonstrate before the tribunal during their testimonies that these results and other they used in their analysis report. So, it will be very speculative for this Tribunal to assume so and apply same to the case of the Petitioners.”

It is not on record that any of the Petitioners’/ Appellants’ witnesses including PW63 and PW64 was led to link their evidence on depositions relating any of the Exhibits P1 – P993 throughout the trial. It is correct to say that the documents, though admitted from the bar, it is not open for the Tribunal to figure out the detailed identity and for what purpose the individual exhibits were meant to serve.

On behalf of the Appellants it was contended that the evidence given by PW63 in chief to the effect that he delivered the certified true copies of the electoral materials obtained from INEC to PW64 (a member of the inspection team) for the analysis, examinations and comparisons that led to Exhibit P993 was neither challenged nor controverted. Furthermore, that the witness was not in fact cross examined at all. The learned counsel therefore restated that Exhibit P993 was a product of the physical inspection, analysis and examination of Exhibits P1- P992.

For purpose of a clearer picture and perspective of the case of hand, it would be helpful to make specific reference to the evidence by PW64 at paragraph 48 of his written Statement on oath wherein he stated thus:

“48. I believe that the claims and conclusions that have here can be easily verified by reference or examination of the reference documents or electoral material referred to or that forms the basis of my conclusion or the findings made or conclusions.”

By implication, it is obvious from the foregoing deposition that the said exhibits admitted were never linked to the case of the Petitioners but rather left for the Tribunal to verify/examine same by themselves outside the Tribunal sitting since the Petitioners/Appellants have failed to do so at the trial. There is no evidence an record to show that the Exhibits P1-P993 were either read or token to be read of the trial. For the Tribunal to embark on the assignment given to it by the Appellants, it would certainly involve its going on a voyage of discovery. In other words it ought to on its own engage in sorting out which polling units of the State are contained in the bundles of voters register admitted as exhibits or the contents as in figures and computation of some on the exhibits. Any Tribunal worthy of its salt would not have obliged such a venture and which the Tribunal in my humble view rightly refused to do. All materials and evidence relating trials ought to be in the open Court and must generally except where the proceeding is conducted in camera be open to the public. It is not permitted by our system of adjudication that the Court should on its own and in the comfort of its recess engage in sorting out a party’s case for purpose of sound footing. This is not however to say that the Tribunal cannot take judicial notice of the statutory forms i.e. Form EC8A, EC8B, EC8C and the voters register to the extent of the statutory information printed thereon. In other words what it means is that the judicial notice extends to recognition and does not extend to other recordings made in the filling of the forms by other individuals, except such recordings are pointed out to the Tribunal in the open Court by way of viva voce evidence. It cannot therefore in its privacy search out what the recordings were or how they were made. This by implication was what the Appellants are calling on the Tribunal to do. The parties would certainly be deprived of the adjudicatory right to cross-examination and participation and thus a denial of fair hearing.

The documents are public in nature and being statutory forms, the Tribunal is bound to look at them for purpose of recognizing them as such, and therefore obviously speak for themselves in that context only. By the provision of Section 150 of the Evidence Act, the presumption of their correctness and regularity is made. This, notwithstanding, and as rightly arrived of by the Tribunal, is not however open to it to go further and apply the use of those results to the Petitioners’/Appellants’ case by looking into them one by one and polling booth by polling booth for purpose of discovering their particulars and contents and apply them to the case of the Petitioners. The Appellants as rightly arrived at by the Tribunal have failed to demonstrate by evidence before it the use for which they wonted the Tribunal to put them.

In the case of Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246 at 354. The apex Court per Niki Tobi held and said:

“Election results are presumed by law to be correct until the contrary is proved. It is however a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic and the burden is on the person who claims the correctness and authenticity of the return to rebut the presumption.”

The burden is therefore squarely on the Petitioners/ Appellants to rebut this presumption by credible and cogent evidence. This requirement has been well pronounced in plethora of judicial authorities for example in the case of Yar’adua v. Barda (1992) 3 NWLR (Pt. 231) 638 at 642 wherein it was held that:

“The only way a petitioner can question the lawfulness of the votes cast at an election is to tender in evidence all the forms used and call witnesses to testify as to the misapplication of the votes scored by individuals. For example, if a petitioner wants to prove over-voting, he needs a witness to State where the over-voting took place. The documentary evidence of over-voting will be the voter’s register showing accreditation and the form EC8A. Those pieces of documentary evidence can be tendered from the bar during pre-hearing or during the course of the trial. The witness giving oral evidence would refer to the specific exhibits already tendered to cement the case.” (Underlining is for emphasis).

See also the case of Amosun v. INEC CA/I/EPT /GOV/01/09 unreported of 8th March, 2010 also Malunfashi v. Yaba & Ors. (1999) 4 NWLR (Pt. 598) 230 at 237.

Throughout the length and breadth of the record of proceedings the witnesses PW63 and PW64 who testified as having played one role or the other in the production of the report Exhibit P993 did not demonstrate before the Tribunal during their testimonies that those results and other documentary exhibits tendered from the bar were what they used in their analysis report. It will therefore amount to mere speculation for the Tribunal to assume such conclusion and apply same to the case before it.

The learned Appellants’ counsel was greatly misconceived when he expected the Tribunal to have done otherwise. This Court per Salami JCA (as he then was) for instance in the case of Naga v. Registered Trustees Recreation Club (2004) FWLR (Pt. 190) 1360 had this to say:

“The preservation of the principle is that it is infraction of derogation of the rule of fair hearing for the judge to do in the recess of his chambers, what a party is required to do in canvassing his case in the open court. The Court by so acting has only sacrificed its impartiality. It has equally turned the whole proceedings from adjudicatory to investigatory. It is therefore, not the business of the Court to wield through exhibit 1, the constitution of the defendants to ascertain which provision (if any) assists or supports the plaintiff …”

Also in the case of Onmeje v. Otokpo (1999) 1 NWLR (Pt. 600) 578 at 5 this Court per Chukwuma-Eneh, JCA (as he then was) held and said:

“The other question for consideration relates to the Tribunal’s refusal to examine and use Exhibits P22 and P23 wherefore, learned Appellants’ counsel has submitted that this was done under misconception of the case of Oribudo & Ors. v. Akibu (1992) 7 SC 60 at 62. These exhibits were ballot papers etc. For Akpoge-Ogbilolo ward and were tendered by the PW1 in what looked like dumping them on the Court as no attempt was made by evidence as to what use the court was to make of them hence the Tribunal found that apart from numbering it with these exhibits, if was not its function to ‘examine the voters register, the ballot papers etc to see whether there were over voting or other irregularities.’ It is not the duty of the Court to go on a voyage of its own discovery. No authority was cited to the petitioners stand in this respect. It is my view that having tendered these exhibits, it was incumbent on the Petitioner to lead evidence as to the use to be made of then. Without taking that step, the tribunal was perfectly right in refusing to be drawn into examining them.” (Emphasis provided)

Niki Tobi JSC also in the case of Buhari v. INEC (supra) had at page 415 put a stop cork to the bottle neck wherein he held thus in his pronouncement and said:

“The basic aim of tendering documents in bulk is to ensure the speedy hearing of election petitions and that is good because it facilitates the speedy hearing of the petition. But that does not ipso facto permit the Court to attach probative value to documents that lack such value. At the end of the day and the end of the day is the writing of judgment, the trial judge will remove the chaff from the grain by scrupulously examining the documents to see whether they have the content of probative evidence. As the documents in this case failed the test, the Court of Appeal was right in expunging them.”

The learned Tribunal cannot therefore be faulted in towing the path of absolute deductive reasoning. The present case of hand, I hold, is squarely on all fours with those under reference (supra). In other words, the Tribunal did well by refusing to be swayed away by the pressure mounted upon it on behalf of the Petitioners / Appellants by their learned counsel. It did therefore save itself from embarking on a fruitless voyage of wrongful discovery. The veracity and credibility of the report Exhibit P993 was greatly thrown into uncertainly especially where there was no evidence from any witness before the Tribunal that the findings of non accreditation in Exhibit P993 were based on the examination of Exhibits P1 – P890. There was also no evidence that the said Exhibits in fact were tendered in proof of non-accreditation of voters and other electoral malpractices in the election.

For Purpose of emphasis and to drive home the crucial point, in the case at hand, the bundle of voters registers Exhibits P1-P890 were tendered from the bar without an iota of evidence from any witness of the Petitioners on the purpose for which they were tendered and admitted in evidence. In the absence of any explanation about the said voter’s registers, it is correct to say and without mincing words that the said Exhibits P1 – P890 were merely dumped on the Tribunal from the bar by the counsel for the Petitioners/ Appellants. There was certainly a missing link connecting the nexus that the said voter’s registers were the basis from which the witness PW64 made his findings in Exhibit P993 about non accreditation of voters in many polling units in the words at Barkin Ladi Local Government Area of Plateau State.”

The very witness PW64 whose evidence was heavily relied upon by the Appellants, though he testified before the Tribunal a day after the tendering of Exhibits P1 – P890 he never however identified them or linked them as being the documents he examined to produce Exhibit P993. It is correct and not far-fetched to say therefore that the said witness PW64 from all indication appeared in the circumstance as a stronger to the documents Exhibits P1-P890 therefore. The attempt made by the Petitioners/ Appellants senior counsel in his address to link the Exhibits P1 – P890 and other documents tendered from the bar as being those examined by the witnesses PW63 and PW64 to produce Exhibit P993 was greatly misplaced. The absence of nexus or the missing link between Exhibits P1 – P992 and the evidence of PW63 and PW64 as well as Exhibit P993 cannot be salvaged or saved by the address of counsel as sought to portray by the learned Appellants’ counsel. It has not also been shown on record anywhere that the other witnesses who testified before PW63 and PW64 did provide the missing link evidence. Needless to restate the well standing principle of law that an address of counsel no matter how sound, convincing or brilliant, it can never take the place of evidence. I am afraid but must clearly and emphatically say that the Appellants counsel had failed to address the need to have ensured the link which was only possible through the witnesses who testified on their behalf and no more.

Even in the face of repetition, I would again restate that the law is clear as pronounced in the cases cited earlier in this judgment that a party relying on bundles of documents in proof of his case must specifically relate such documents to that part of his case in respect of which the bundles of documents were tendered. This responsibility does not fall on the Court as if would be aiding and conducting a case on behalf of a party who has failed to discharge the onus placed on him.

The learned Appellants’ counsel strenuously submitted the lack of cross examination of PW63 and PW64 by the Respondents and hence their evidence as uncontradicted. With all respect to the senior counsel, I hasten to say that the witnesses PW63 and PW64, in the absence of their identifying or linking the production of Exhibit P993 from Exhibits P1 – P890, needed not be cross-examined on their evidence which unfortunately failed to address the aspect of the use of the documents which was of most significance. It is this aspect of the evidence that would have given reason for the Respondents the opportunity and purpose necessitating cross examination of the witnesses PW63 and PW64 in respect of the Exhibits P1 – P890 as well as Exhibit P993. The Appellants did not create the need for any cross examination of the witnesses. It should not therefore be the business of the Respondents to invent a reason for cross examination if there is none and therefore would do well by keeping their peace. It is the Appellants who would stand to lose if they fail to present their documents properly before the Tribunal for purpose of proving their case. After all the onus of proof lies on the Petitioners/Appellants who must first discharge the initial onus whether or not the Respondent decide to say anything. The submission on cross examination as contended by the learned Appellants’ counsel is greatly misconceived. I have said earlier that no room was open far the Tribunal to speculate. The allegation made on non accreditation in the election in issue in any polling units in Barkin Ladi Local Government Area, therefore remain unproved. The findings by the learned Tribunal in refusing to examine, act on, and give probative value to the Petitioners / Appellants report of inspection of electoral documents Exhibit P993 was apt and unassailable. The 1st issue is therefore resolved against the Appellants.

Issue 2 questions the Tribunal’s propriety in holding that the Petitioners/Appellants dumped the CTC’s of the Electoral materials Exhibits P1 – P992 on the Tribunal. This issue over lapses and is closely related to the 1st issue. Nevertheless I will treat it as a separate issue but may not avoid occasional over lapsing.

In his submission to substantiate the allegation, the learned senior counsel for the Appellants vehemently argued that the findings by the Tribunal in respect of Exhibits P1 – P992 wherein it held their having been dumped on it by the Appellants is extremely perverse and unjustifiable in law.

It has been well spelt out in the course of this judgment and which is not an issue that the said Exhibits P1-P992 are the certified true copies of the Electoral materials (Forms EC8A’s, EC8B’s and voters registers being tendered in evidence from the bar and so admitted and marked as exhibits.

From the plethora of authorities cited and considered under the 1st issue raised (supra), the law is clear that the public nature of such exhibits is not in dispute but which ought to be judicially noticed of wherein the provision of Section 150 of the Evidence Act enjoins the presumptions of their regularity for purpose of recognition. Hence when such documents are tendered from the bar their authenticity is not in question in view of Section 150 of the Evidence Act. The case of hand however and contrary to the submission by the learned senior counsel for the Appellant, still holds that the use and purpose for which such documents are meant for ought to be testified to and explained by a credible witness who has the 1st hand knowledge of the facts to enable him relate the documents to his evidence for linking purpose. PW63 and PW64 or any other Petitioners’ witnesses alike in their evidence, did not link the exhibits in question. The learned Tribunal was therefore left on its own without any clue of what use the documents are meant to serve. Having been faced with so many certified true copies of documents, relevant as they may be in nature their mere existence per se is not sufficient for purpose of proving anything without explanation and linking to an evidence thereto. The Tribunal was rather left on its own to sort out the use and purpose of the exhibits. It was in other words saddled with a responsibility which was not meant for it. The expected implication of placing the documents before the Tribunal spoke volume which was for them to descend into the arena for purpose of sorting out their relevance outside the hearing of the case and without any explanation as to their use. In the circumstance and as rightly arrived at by the Tribunal, which conclusion I also endorse, the documents were certainly dumped on them. The statutory nature of the forms per the judicial authorities cited and which recognized the exhibits under Section 150 of the Evidence Act did not render them as self explanatory for purpose of dispensing with witness explanation. The contention by the learned Appellants’ counsel is a misconception of the authorities cited because they did not dispense within witness’ evidence linking the documents. To do so would prejudice the opponent who will have no opportunity to cross examine them. The findings of the Tribunal that the documents speak for themselves relate to their presumptive nature under Section 150 of the Evidence Act and no more. It is therefore a misconception on the part of the Appellants’ counsel to have ascribed a different interpretation to the phrase “the document speaks for itself.” It is the act of tendering the documents and leaving same without any explanation that constituted some having been dumped on the Tribunal or Court. The case of Awuse v. Odili (2005) 16 NWLR (Pt. 952) 416 at 482 per Salami JCA (as he then was) is under reference and dealt with earlier on in the course of this judgment.

At pages 3235 – 3236 of the record of appeal for instance, the learned Tribunal extensively held and said:

“The law is that after tendering some documents in evidence before the Tribunal, the party who tender same is expected or required to demonstrate to the Tribunal the use he proposes to put them to. It is not for the Tribunal to go on a voyage of discovery or speculation. Investigation is not the work of the Tribunal. It is rite that the Petitioners had tendered before these Tribunal bundles of Forms EC8As from the bars results of election. On the face of these documents, it is clear that they are results of the electron but the Tribunal cannot begin to apply their contents to the case of the Petitioners. For instance, to prove over-voting, when they had not done so. They did not demonstrate to the Tribunal the relevance and purport of those exhibits to their case. Yes, it is true that a document once tendered in evidence speaks for itself. This is just for the court to know prima facie, the contents of the document but the court will have no competence and power to apply the document to any specific aspect of the party’s case when the party that tenders it has not done so. That will amount to embarking on a voyage of discovery, and it will lead to the breach of right of fair hearing of the adversary who did not have the fore knowledge of the purpose for which the document was tendered in evidence. This principle of law is supported by a long line of judicial authorities. See Tera v. Lawan (1992) 3 NWLR (PT. 231) 569, ANPP v. Argungu (supra), Awuse v. Odili (supra), Audu v. INEC (supra). The decision in Tera v. Lawan (supra) did not say that once Form EC8A is tendered in evidence, without demonstrating before the Court, its relevance and purpose in the proceeding in which it is tendered, the Court would assume and ascribe relevance and purpose to it in favour of the party that tenders it. That is not the law. It appears to this Tribunal that because the Form EC8A is a statutory form, the Court before which it is tendered in evidence would not require it to be read again as the court would know what it is from its contents. However, this is not the same as the Court knowing the relevance and purpose for which it is tendered in evidence in support of a party’s case. It is for the owner of the said form EC8A to demonstrate before the court, ifs relevance and usefulness, in deciding the contest between the parties. That is not the duty of the court, no matter how that principle of law may be stretch.”

The findings and conclusion arrived of in my opinion are apt and explicit in addressing the issue before the Tribunal. This finding I hold is a marathon and I also endorse same as findings in the right direction.

In other words I therefore agree with the submission made by the learned senior counsel to the 1st – 3rd Respondents that the conclusion arrived at by the learned Tribunal as reproduced (supra) is unassailable and I also so hold.

On the totality of the said issue therefore, I hold that the Tribunal was right in holding that the Petitioners/Appellants dumped the CTC’s of the electoral materials Exhibits P1 – P992 on it without relating same to their case. The said issue two is also resolved against the Appellants.

The 3rd issue is whether the Tribunal was right in not treating the 4th Respondent as having abandoned its pleadings and admitted the case made by the Petitioners/ Appellants.

The thrust of the case of the Appellants of the Tribunal was that the conduct of the election in the affected Local Government Areas and words was not in compliance with the mandatory provisions of the Electoral Act and the 4th Respondent’s Manual for Electoral Officers. That the complaint was lodged against the 4th Respondent’s conduct of the election and therefore clearly directed at the 4th Respondent to the effect that the election which it conducted and on which basis the 1st and 2nd Respondents were returned as elected was substantially flawed.

The learned Appellants’ senior counsel in the circumstance submitted error by the Tribunal in not treating the 4th Respondent as having abandoned its Reply and in effect admitted the case made by the Petitioners/Appellants. That this submission was especially confirmed wherein the Petitioners / Appellants’ case having been clearly built on documentary evidence, and of so having shown that the irregularities amounting to substantial non compliance with the provisions of the Electoral Act are manifest on the same Electoral materials used by the 4th Respondent in the conduct of the election Exhibits, P1 – P992. The learned senior counsel cited plethora of authorities wherein pleadings not supported by evidence are deemed abandoned as clearly pronounced in the case of Ojoli v. Kamalu (2005) 18 NWLR (Pt. 958) 523 per Tobi JSC. Heavy reliance was also made on the case of Aregbesola v. Oyinlola (2010) 9 NWLR (Pt. 1253) 458 at 596 amongst others which all go to confirm that pleadings without evidence is deemed abandoned. The question of pleadings without evidence is not on issue of contention but rightly so and is trite law in nature.

The question to pose however whether the 4th Respondent indeed did abandon its pleadings as is alleged by the Appellants’ counsel and in line with the authorities he cited? However and despite the general acceptable principle of law regarding pleadings as rightly submitted by the learned Appellants’ counsel the end of the matter is not always foreclosed with the general rule. In other words as rightly also submitted by the learned senior counsel to the 1st – 3rd Respondents there are also exceptions to the general rule which are relevant of note where the following circumstances apply as:

(a) Evidence led during cross examination on issues joined is as valid and authentic as evidence procured from examination in chief.

(b) Evidence elicited from a plaintiff’s witness under cross examination forms part of the case for the defence. The defence can therefore legitimately rely on such facts in establishing his case.

(c) A party seeking nullification of an election must succeed on the strength of his case and not on the weakness of the Respondents case.

See the case of Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 590 wherein Edozie JSC held and said:

“Evidence procured from cross examination is as valid and authentic as evidence procured from examination in chief. Both have the potency of relevancy, and relevancy is heart of admissibility in the law of evidence. Where evidence is relevant, it is admissible and admitted whether it is procured from examination in chief or cross examination.”

Also in Ayoola v. Yahaya (2005) 7 NWLR (Pt. 923) 122 at 140 the apex Court further said:

“Evidence elicited from a plaintiff’s witness under cross examination forms part of the case of the defence. Therefore, where counsel by skillful application of the weapon of cross-examination is not only able to destroy the case of the defence, he can legitimately rely on such facts in establishing his case.”

An example is where the 4th Respondent’s counsel who did not call any witness but took time to cross-examine the RW1, RW2, RW4, RW6, RW7, RW8 who are all witnesses to the 1st – 3rd Respondents. The various evidence under cross examination of pages 2803 and 2805-2845 of the record of appeal would serve to disagree with the Appellants’ contention that no evidence was adduced of the instance of the 4th Respondent. Moreover and with the legal position that a party who asserts must succeed on the strength of his case and not the weakness of the defence, same stands to be interpreted that where the Petitioners/ Appellants had failed to make out their case on credible admissible evidence, there is no burden placed on the Respondent who would not need to call any witness, in the circumstance.

By the cross examination of the foregoing Respondents’ witnesses, same as rightly submitted by the learned 1st – 3rd Respondents’ counsel, had successfully challenged the Appellants’ case and thereby established, that:

(a) There was accreditation of voters.

(b) There was voting

(c) There was no misuse and misapplication of votes.

(d) There was counting of votes, announcement and pasting of result at most of the polling station and/or units in the contested Local Government Areas.

With reference also to the 4th Respondent’s pleadings, same is contained in the 4th Respondent’s Reply to the petition, particularly paragraph 9(i) (xiii) at pages 4-5 of the 4th Respondent’s Reply to the petition. The averments clearly confirm that the entire election was properly conducted and free from all form of irregularities wherein no voter was disenfranchised but that all were allowed to exercise their rights and therefore in substantial compliance with the Electoral Act regulating the conduct of the election. The Respondents’ witnesses under cross examination by the 4th Respondent’s learned counsel Mr. A.A. Ibrahim Esq. also confirmed in totality the averments in the 4th Respondent’s brief of arguments and that the whole process of the election was conducted in accordance with expectation of the Electoral Act. That no form of irregularity or malpractice occurred to vitiate the conduct of the election which was very fair and peaceful.

The case of Akomolafe & Anor. V. Guardian Press Ltd & 3 Ors. (2010)1 SC (Pt. 1) 58 at 74 is apt wherein W.S.N. Onnoghen JSC pronounced on evidence adduced under cross examination and which could constitute evidence in support of the case or defence of that party.

On the totality of the 3rd issue raised therefore the learned Appellants’ counsel was in great error wherein he alleged that the Tribunal erred in not treating the 4th Respondent as having abandoned its pleadings and admitted the case made by the Petitioners/ Appellants. In other words it is not true as alleged by the learned Appellants’ counsel that the 4th Respondent abandoned its pleadings of any time. Rather same was out rightly proved per the evidence adduced from the 1st-3rd Respondents’ witnesses under cross-examination. The said issue I hold is also resolved against the Appellants.

The 4th and the last issue questions whether the Tribunal was right in dismissing the Appellants’/Petitioners’ petition on the ground that they have not proved their case to warrant the grant of the reliefs sought.

In his submission, the learned Appellants’ counsel faulted the Tribunal wherein it dismissed the petition by the Appellants on the ground that they have not established their case. The conclusion by the Tribunal counsel argued, was erroneous because the Tribunal unjustifiably failed or refused to examine, act on and ascribe probative value to the documentary evidence heavily relied on by the Appellants in proof of their petition. To buttress his submission, the learned senior counsel relied heavily on Exhibits P1 – P992 as well as Exhibit P993 containing the report of the analysis of Exhibits P1-P992. Counsel submitted forcefully that the Petitioners have established the allegations of substantial non-compliance with the Electoral Act 2011 in the conduct of the Gubernatorial Election in the contested Local Government Areas and words as alleged. The counsel therefore called upon this Court to critically consider the analysis of the results made in the table contained of page 30 of the Appellants’ brief which counsel submitted should be used and declare the 1st Petitioner/ Appellant as the winner of the contested election, having duly scored the majority of lawful votes of 434, 116 as against 412,636 scored by the 1st Respondent.

The position of the law as rightly submitted by the learned 1st – 3rd Respondents’ counsel is that the result of any election that is declared by INEC is deemed authentic and genuine. It is the duty of the person who is asserting the contrary therefore to prove that the result so declared is not authentic or genuine. The presumption of regularity has been clearly elucidated in the case of Audu v. INEC (2010) 13 NWLR (Pt. 1212) 431 at 522 wherein this Court held and said:

“There is a presumption that the result of any election as declared by the electoral body is correct and authentic, and the onus lies on the person who denies the correctness and authenticity to rebut the presumption with credible evidence” (Ezea Zodoziako v. Okeke (2005) 16 NWLR (Pt. 952) 612, Onye v. Kena (1999) 4 NWLR (Pt. 598) 198: … Mohammed v. Mohammed (2008) 6 NWLR (pt. 1082) 73. Chime v. Onyia (2009) 2 NWLR (Pt. 1124) 1).

Also in Buhari v. Obasanjo (2005) 2 NWLR (Pt. 910) 241 at 399 the Apex Court held and said:

“A petitioner must first allege and adduce some evidence of the existence of violence and other corrupt practices in an election to subject the election to the scrutiny of the Court. Where no allegation is made against an election and no evidence is adduced on the conduct of the election, the presumption of regularity ensures in its favour.”

Relevant also to the determination of this issue is the provision of Section 139 (1) of the Electoral Act 2010 (as amended) which provides thus:

“139(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act, and that the non-compliance did not affect substantially the result of the election.”

The above provision has been given judicial interpretation in a number of cases including Buhari v. Obasanjo (supra) where the apex Court per Ejiwunmi JSC, held and said:

“… The onus is on the Appellants to establish first, substantial non-compliance and secondly, that it did or could have affected the result of the election. It is after the Appellants have established the foregoing that the onus would have shifted to the Respondents to establish that the result was not affected.”

From the deductive summary of the Petitioners/Appellants entire case before the Tribunal, in other words, from the collective summary of the pleadings, evidence adduced by witnesses as well as the documents admitted as exhibits, it is as rightly found by the Tribunal that the Petitioners’ case stood on three legs namely, the oral evidence of their witnesses; the documentary evidence and the alleged admissions by the 4th Respondents from the evidence of RW24 and RW25 who were the 3rd Respondent’s word collation agents in Nemel and Dawaki words respectively: they testified that election in these words was free and fair and that there was no evidence of non compliance. If is relevant to note that the said two words were the words where PW23 and PW56 came. The witnesses RW24 and RW25 whose evidence was not subjected to cross examination had therefore clearly rebutted the evidence of the said Petitioners’ witnesses. See the cases of Williongby v. I.M.B. (Nig) Ltd. (1987) 1 NWLR (pt. 48) 105 and A.G. Oyo State v. Fair Lakes Hotel Ltd (1981) 1 SCNJ 1 at 20.

On the credibility of documents Exhibits P1 – P993 same had been dealt with in great depth under the 1st issue in the course of this judgment. It is relevant to restate that there is a world of difference between admissibility of documents and ascription of probative value to same. The Court or Tribunal would only ascribe probative value to documents that are properly demonstrated before it, by parties laying the nexus between such documents to the evidence of their witnesses which the petitioners have failed to do in the instant case. I have taken pains to analyse and peruse the evidence given of the Tribunal by all the witnesses to the parties, also the documents tendered in support of their cases as well as the averments made on the pleadings and thus arrived of endorsing the unshaken conclusions arrived of by the learned Tribunal. In other words and on the totality of the Petitioners/Appellants’ case, and as rightly found by the learned trial Tribunal, the Petitioners/Appellants have failed to prove the allegation of the non compliance with the Electoral Act 2010 (as amended) and/or corrupt practices in the conduct of the election in the polling units of those five Local Government Areas and the words as pleaded. Furthermore and assuming that there was any such non compliance and corrupt practice, (which certainly is not the case), the Petitioners/Appellants did not lead any credible evidence that the alleged transgressions of the Electoral Act did in fact substantially affect the result of the election in the said five Local Government Areas and the words.

Having resolved thus far, I hold the firm view that the Tribunal having meticulously and carefully evaluated all the evidence adduced by parties as well as the exhibits tendered before it could not be faulted in dismissing the Appellants/Petitioners’ petition on the ground that they have not proved their case to warrant the grant of the reliefs sought. The said issue is also resolved against the Appellants.

In the final analysis and with all the four issues having been resolved against the Appellants, it is obvious that the appeal must fail and is hereby dismissed as lacking in merit. In the same vein as the trial Tribunal therefore I also make an order dismissing the petition filed by the Appellants/Petitioners at the trial Tribunal on the 19th day of May, 2011. A further order is also made in declaring and affirming the Election of David Jonah Jang and Ignatius Longjang the 1st and 2nd Respondents as the Governor and Deputy Governor respectively having been duly elected by a majority of valid and lawful votes cast of the election into the office of Plateau State Governor and Deputy Governor held on the 26th Day of April, 2011. No order made as to costs.

OREDOLA, JCA

I have read before now while in draft, the lead judgment just delivered and pronounced upon by my learned brother, Ogunbiyi, JCA. I agree entirely with the detailed and analytical review of facts and law, lucid reasoning and conclusion reached therein.

I am thus satisfied and harboured the firm viewpoint that the appeal lacks merit and should be dismissed. It is accordingly dismissed by me. I abide by the consequential orders made in the said lead judgment of my learned brother, Ogunbiyi, JCA. I also make no order in respect of costs. Parties are to bear their respective costs.

EPKE, JCA

I have had the privilege of reading in advance, the lead judgment which has just been pronounced by my learned brother, Ogunbiyi, JCA. I am in complete agreement with the reasoning and conclusion reached therein, to the full effect that the appeal lacks substance and merit. I also affirm the decision of the tribunal and accordingly dismiss the appeal. I further abide by the order regarding costs made in the said lead judgment.

Appearances:

KOLA AWODEIN, SAN with PASCHAL MAMMO L.O. FAGBEMI SAN, I.O. OLORUNDARE SAN, S.T. OLOGUNORISA SAN, S.G. ODEY ESQ. L.E ANYIA ESQ, DANIEL GOPEP ESQ. S. OYAWOLE ESQ. BENJANIN ISHAKU ESQ. A.T. BALOGUN (MISS), M. AHUPA (MISS), A.M. UMAR (MRS) A.A. IBRAHIM ESQ and L.P. FOM BOT (MRS)

For Appellants
For Respondents