(1)‘Tribunal judgment is perverse’ – TheNigerialawyer

Being judgment of the Court of Appeal in the Oyo State
governorship election petition

Learned Senior Counsel submitted that throughout the arguments
of the appellants as contained in their brief, they never
highlighted or brought into focus, the portion of evidence they
said they elicited from the respondents’ witnesses that supported
their case. That since the evidence of the appellants had been held
by the Tribunal not to be credible, there was no need to consider
the case of the respondents — ROTIMI Vs. FAFORITI (1996) 6 NWLR
(Pt. 606) 305 at 328 – 329.

That the appellants did not show how the alleged failure to
evaluate the respondents’ witnesses would have proved the
incorrectness of the judgment of the Tribunal P ETROLEI-JM— TRUST
FUND vs. WESTERN PROJECT CONSORTIUM LTD (2006) LPELR – 7719
(CA).

Learned Counsel then referred to the evidence of PW39 who was a
ward collection agent, not a polling unit agent and submitted that
this would not have changed the judgment. On RW6 corroborating
evidence of the prosecution witness, Counsel submitted that this
has no weight and cannot change the judgment of the Tribunal,
especially as the signing of polling unit’s results was not an
issue before the Tribunal.

On fair hearing, Counsel submitted that once it is shown by the
surrounding circumstances that the court afforded parties equal
opportunity to put forward their cases, there cannot be a complaint
in that vein. He urged us to resolve the Issue in favour of the
respondents.

The appellants filed Replies to the briefs of the respondents
and I shall consider them appropriately.

In the first place, let me say that the submission of learned
Senior Counsel for the 3 rd respondent that the appellants have not
highlighted the portion of the evidence elicited by the appellants
from the witnesses of the respondents which supported their case,
is not borne by the record.

page 10 of the appellants/ brief, paragraph 5.25, is a
submission that RWI, RW2 and RW3 supported the case of the
appellants’ PW39. At paragraph 5.30, Page 11 of the appellants’
brief, js also a highlight that RW6 gave evidence that supported
the case of the appellants as given by the PW5 named therein. At
any rate, it seems like a change of heart, when 1 st respondent’s
Counsel later picked these pieces of evidence which were highlights
and then proceeded to answer them. The point made is that these
highlights exist, contrary to the earlier submission of the 3 rd
respondent.

Now, evaluation of material and relevant evidence and ascription
of probative value thereto, are the duty and the prerogative of a
trial court. It is duty bound to evaluate the entire evidence led
by the parties. It carries out this duty by listening to the
witnesses and observing them as they give evidence in chief or
under cross-examination. It watches their hesitations in answering
questions or in promptly answering them, observing any memory loss
or attempts to circumvent or dodge questions. It is not right, it
is an error for a trial court, to evaluate the evidence of one
party and neglect the other side.

Once that happens, the findings of the trial court and its
conclusion would be a mistake, a miscarriage of justice SAKA
ATUYEYE & ORS vs. EMMANUEL ASHAMU (1987) LPELR 638 (SC) per
oputa, JSC, at PAGE 30 C – D; ONISAODU & ANOR vs. ELEWUJU &
ANOR (2006) LPELR – 2687 (SC) at 18 D — E. In other words, proper
evaluation of evidence is absolutely important, for in order to
determine a case and come to a just decision or conclusion, a trial
judge must assess and appraise all evidence before him. Therefore,
the cardinal duty of a trial judge, is the evaluation of evidence
so as to decide where the scale preponderates by qualitative
evidence. This is done by the judge, by considering the totality of
the evidence placed before him, evaluating same on the imaginary
scale of justice, and making findings of facts before applying the
law – CPC Vs, INEC (2011) LPELR – 8257 (SC) per Adekeye, JSC at
PAGE 46 B – F. As stated in KABIRU ABUBAKAR vs. JOHN JOSEPH &
ANOR (2008) LPELR – 48 (SC) at PAGE 57 per Ogbuagu “It needs to be
borne in mind that the law is trite that for a judge to produce a
judgment which is fair and just, he must fu//y consider the
evidence proffered by a// the parties before him, ascribe probative
va/ue to it, make findings of fact/ app/y the re/evant /aw, and
come to some conclusion on the case before him…”

Evaluation of evidence is not the same as summation or summary
of the evidence. When a court summarises evidence, it captures the
essential and material evidence led without any comment. But an
evaluation of evidence entails the court considering the entire
evidence even in a summary form, weighing same by putting the
evidence of one party on one side of the imaginary scale and the
evidence of the other party on the other side of the scale and
weighing their qualjty, not quantity, to see which side will
outweigh the other. Credibility, materiality and admissibility all
come into play in this exercise.

In the instant appeal, learned counsel for the 1 st respondent
submitted that pages 1176 — 1190 of the record, Volume 5, Part 11
is a review of the evidence of the respondents’ witnesses. It is
nothing of the sort. The pages are part of the judgment of the
Tribunal which merely reproduced or summarised the evidence led.
There was no evaluation in the sense that the evidence was compared
with the other side and a finding made and why one side was
preferred over the other. The learned senior counsel for the 2nd
respondent also submitted that all evidence before the

Tribunal was evaluated by the Tribunal and that, pages 1204-1241
of the record show evaluation and review of evidence led by the
parties. That is not my finding. For these pages only depict the
addresses of counsel, and the review of the evidence of the
petitioners. There is no evaluation of the witnesses of the
respondents. It is pomp and plain, and we agree with learned senior
counsel for the appellants, that the Tribunal did not evaluate all
the evidence led before it, especially the evidence of the
respondents’ witnesses. This came about because the Tribunal
discountenanced the evidence of some of the witnesses of the
appellants for being hearsay. That since the Petitioners had not
discharged the burden on them to prove their case initially, there
was nothing to rebut and there was therefore no need to evaluate
the evidence led by the witnesses for the respondents.

A party who did not call any witness, is entitled to
crossexamine the witness of the other party and if he elicits
evidence upon which there was pleadings and relevant, then he can
rely on it as his evidence to support his case. It would be wrong
for the court to dismiss the case of the party who did not call a
witness for not leading evidence, without the court first
considering the evidence that party elicited under
cross-examination of the witness of the other party. See M.T.N.
(NIG) vs. CORPORATE COMMUNICATION LTD (2019) 9 NWLR (Pt. 1678) 427
at 449 — 450B.

This is what happened here. The witnesses of the respondents
gave evidence and were cross-examined by the appellants; and their
evidence supported the case of the appellants. Whilst considering
and evaluating the evidence of those respondents’ witnesses, the
Tribunal held that the appellants had not discharged the initial
burden on them. This was palpably wrong, because had the Tribunal
carried out its primary duty of evaluating all the evidence led
before it by both parties, it would not have come to the conclusion
it erroneously reached. In other words, the point I am making, is
that the Tribunal had the duty to consider and evaluate all the
evidence led, including the evidence elicited under
cross-examination in supporting any party. If it had done that, and
came to the conclusion that the evidence was not sufficient on the
side of the petitioners, that they did not discharge the initial
burden, then it would have been right to say there was nothing to
rebut. But because it did not properly evaluate the evidence led
and the evidence of RWI, RW2 and RW3, it denied itself that
opportunity of properly assessing the evidence on behalf of the
petitioners whether by their witnesses or under crossexamination,
and that was miscarriage of justice occasioned against the
appellants.

Again, the Tribunal did not consider and evaluate the evidence
of the RW6, who corroborated the evidence of PWs 17, 24, 30, 35,
37, 47, 49, 63 and 64 that the purpose of their signatures, was to
enable them obtain copies of the results declared. It was this
failure to consider and evaluate, that led the Tribunal to conclude
that the polling agents had signed the results voluntarily, whereas
this was not the evidence at all. It was therefore a factor that
contributed to the holding of the Tribunal that the Petitioners had
not discharged the initial burden on them. It was open to the
Tribunal to say or hold that it did not believe them and give a
reason. That would have shown a due discharge of the primary
responsibility of evaluation of evidence on it. The failure to
consider it and make a finding one or the other, is a serious
breach of that duty.

When a court fails to properly evaluate the evidence led,
especially where it fails to evaluate the evidence of a party in
his behalf whether through evidence in chief or under
crossexamination, and where the result or conclusion would have
been different, but for the failure to so evaluate, that decision
cannot stand as it is a denial of fair hearing enshrined in section
36 of the 1999 Constitution as amended. Clearly the findings of the
Tribunal, are perverse and cannot be allowed to stand even if
parties were given equal opportunity to present their cases.

Where findings of a court
are perverse, an appel
late court is jn a good position to re-evaluate in order to come to
a right decision – MKPONG vs. NDEM (2013) 4 NWLR (Pt. 1344) 302 at
321 (SC) and ADEGOKE vs. ADIBI (1992) LPELR 95 (SC) 29 – 30 per
wali Jsc.

We shall do this in the course of this judgment. Issue No. 1 is
resolved in favour of the appellants.

ISSUE NO. 2

Whether the learned trial judges of the Tribunal were right in
coming to the conclusion that the appellants dumped all the
documents they tendered on the Tribunal when the witnesses called
by the appellants and those called by the respondents, spoke to the
documents in their written statements on oath and under-cross
examination.

Learned senior counsel for the appellants referred to page 1265
that-the-appellant had only dumped all the documents tendered, on
the Tribunal and argued that the finding is wrong and erroneous, as
documents can only be said to have been dumped, if they were not
spoken to, linked to the specific areas of the case and
demonstrated in open court during the course of proceedings ACN vs.
NYAKO (2015) 18 NWLR (Pt. 1491) 352; LADOJA vs. AJIMOBI (2016) 10
NWLR (Pt. 1519) 87 and OGBORU vs. OKOWA (2016) 11 NWLR (Pt. 1522)
84. He referred to the evidence of the 69 witnesses called by the
appellants contained in their statements on Oath, which he said
referred to specific documents tendered from the Bar as exhibits.
They adopted their statements on oath and the documents tendered as
exhibits were identified in the proceedings. That this is in line
with front-loading procedure and the witnesses’ statements on Oath
are their evidence in chief after adoption – ASSOCIATED BUSINESS
COMPANY LTD vs. NWACHINEMELU & ANOR (2014) LPELR 24393 CA; MTN
vs. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR 47042 (SC).
He referred to pages 978 980 of the record where he said the
documents were demonstrated before the Tribunal during
cross-examination. He referred to the evidence of PW62 who was
cross-examined by the respondents’ counsel on Exhibit+EC8AjEC8B, P2
(ECO), P4081 and P4082 at pages 978-980 of the record. He referred
to the findings of the Tribunal at pages 1199 — 1200 and 1202,
where it held that Exhibits P4163 P4165 which are Forms EC8A, EC8B
EC8C, EC8D and EC8E were tendered from the bar and that the
respondents did not challenge their authenticity and were infact
relied upon by all the respondents. With this findings he argued,
it was not open to the Tribunal to later find that the documents
were dumped. It was an act of approbating and reprobating which a
court should not engage itself in exercising he said–NGERE Vs.
OKURUKET xrv (2017) ALL FWLR (Pt. 882) 1302 and SAROR & ANORu
vs. SUSWAM & ORS (2012) LPELR – 8611 (CA). He urged us to
resolve the issue jn favour of the appellants.

The contra submission of learned senior counsel for the I St
respondent on this issue, is his reference to the submission of
counsel for the appellants that 69 witnesses made statements on
oath and referred to specific documents tendered from the Bar and
then his argument that this cannot be correct since 27 of the
witnesses’ evidence were hearsay and declared inadmissible.

Since the Supreme Court held he argued, that tendering electoral
documents without adducing evidence, which link the documents with
the particular complaint amounts to dumping and is fatal, the
appellants had dumped the documents.

For the 2 nd respondent, learned senior counsel referred to OKE
vs. MIMIKO (2014) 1 NWLR (Pt. 1388) 332, which held the evidence of
a petitioner who identified the electoral result form in the course
of evidence at the Tribunal, was hearsay as he was not in all the
polling units, like the instant appeal, and submitted that the
electoral Form tendered by the appellants, including Exhibit P4052
(report of card-reader) amounted to dumping them – PDP vs. INEC
(SUPRA) at pages 22, 24 and 25; ANPP vs. INEC (2010) 13 NWLR (Pt.
1212) 549; UCHA vs. ELECHI (2012) 13 NWLR (Pt. 1317) 330 and UDOM
vs. UMANA (2016) 12 NWLR (Pt. 1526) 179. He referred to BUHARI vs.
INEC (2008) 19 NWLR (Pt. 1120) 246 at 391 — 392, and submitted that
where a witness did not make a document, he is not in a position to
answer question or speak to them and so the 27 collation agents who
were not the makers of the documents and were not at the polling
units on the election day, could not answer questions on those
documents. He referred to the cases of MAKI-J vs. AL-MAKURA (2016)
5

NWLR (Pt. 1505) 201 at 222 and ANDREW vs. INEC (SUPRA) at pages
558 — 559 on front-loading statement of witnesses the Bar, as.not
sufficient to prove the allegation complained of. He therefore
debunked the submission of the appellants that no law states that
only the maker of a document can link the documents. He urged us to
resolve the issue in favour of the respondents.

Learned counsel for the 3 rd re
spondent submitted that the
issue of dumping of documents is an elementary principle of law as
set out in numerous judicial authorities. He made reference to
ANDREW vs. INEC (SUPRA) BUHARI vs. INEC (SUPRA) at 246 and the
other cases similarly cited by the 1 st and 2 nd respondents. He
referred to the position of the Tribunal at pages 1265 — 1266 of
the record, that the exhibits in which their makers were not
called, and tied to the specific areas of the Petitioners’ case,
were merely dumped and submitted that it was the right position to
take – INEC vs. OSHIOMHOLE (2009) 4 NWLR (Pt. 1132) 607. He urged
us to resolve the issue in favour of the respondents

Now, there is no doubt about it, that the case of ANDREW vs.
INEC (SUPRA), following the case of MAKU vs. ALMAKURA (2016) 5 NWLR
(Pt. 1505) 201, and a host of other decisions of the Supreme Court
of Nigeria, which established that a witness who did not make a
document, is not in a position to answevquestions
onfthem•ld-the-documents would be held to have been dumped on the
court, as they would not have been linked to any specific
allegation by the Petitioners, cited with approval the finding of
the Court of Appeal in the same case which held that–

hat the law requires is that first of all, the maker of the
documents must tender it and must testify to its contents. Then the
document must be subjected to the test of veracity and credibility
and where it involves mathematical calculations, how the figures
were arrived at must be demonstrated in the open court and finally,
the correctness of the final figure must also be shown in the open
court. What the Appellants did here was to dump documents on the
court by tendering it from the Bar, got a few witnesses to identify
or recognise some of the documents and left the Tribunal to figure
out the rest in its Chambers.“

My lord Okoro JSC continued at pages 558 – 559 H –A-that–

“I need to state clearly, that demonstration in open court is
not achieved where a witness simply touches a bundle of numerous
documents with numerous pages.

The frontloading of evidence and tendering documents in bulk
from the bar do not alter this requirement which is an element of
proof. See OGBORU Vs. OKOWA (2016) 11 NWLR (Pt. 1522) 84; OMISORE
vs. AREGBESOLA (2015) 15 NWLR (Pt. 1482) 205. “

The Supreme Court is not only a policy court, it is also a
responsive and dynamic institution which marches with time and
developments in the society, so that its decisions will be
relevant, current and easily accepted and so obeyed. This js why
there have been some developments which phased out earlier
decisions, and all courts below the Supreme Court are enjoined to
follow its most recent decisions where there are seeming
differences.

In a more recent case later than ANDREW vs. INEC (SUPRA) in
SYLVESTER NWOYE vs. FEDERAL AIRPORTS AUTHORITY OF NIGERIA (2019) 5
NWLR (Pt. 1665) 193 at 209 — 210, Sanusi JSC in the leading
judgment held.’

“It is worthy of note, that when the documents admitted as
exhibits M, N, O, P and Q were tendered at the trial, the appellant
did not challenge the authenticity or existence of those exhibits.
That being so, it would not be necessary for the respondent to
tender them through the maker…

Therefore, since there was no challenge on the authenticity of
the five exhibits by the appellant, the trial court was right in
overruling the objection by the appellant on their
admissibility…”

In the recent case of MTN (NIG) COMMUNICATIONS LTD vs. CORPORATE
COMMUNICATION INVESTMENT LTD (2019) 9 NWLR (Pt. 1678) 427 at 456 D,
the Supreme Court per Kekere-Ekun JSC held that —

“I am of the considered view, that as the authenticity of
exhibit was never in issue before the trial court, it cannot be
made an issue before this court “

The current position of the Supreme Court therefore, is that
when documents are tendered at the trial and no challenge is made
in respect of their existence or authenticity at the trial, they
can be tendered not necessarily by the maker of the document. And
once that challenge was not made at the trial court/ it cannot be
made at the appellate court. In the instant appeal it is correct as
submitted, by learned senior counsel for the appellants in the
Reply brief to 1 st respondent’s brief, that when the documents
were tendered from the Bar, the respondents did not challenge their
existence or authenticity. It is therefore too late to raise that
challenge in this court, especially taking into consideration that
the respondents cross-examined the appellants’ witnesses on the
said exhibits and were used by the respondents. This is evident at
pages 978 — 980 of the record, where the respondents’ counsel
cross-examined PW62 on the documents tendered from the Bar without
objection. Their authenticity could therefore not be in
question.

On front-loading of documents, the current position as I know
it, is as stated jn MTN vs. CORPORATE COMUNICATION (SUPRA) where at
page 455 A – F, Kekere-Ekun Jsc held –

“Learned senior counsel for the appellant contended that the
respondent failed to lead evidence to demonstrate the terms of
exhibit A. With due respect to the learned silk, he appears to have
overlooked the fact that the front-loaded deposition on oath ofa
witness in support of his pleadings constitutes his evidence in
chief in the proceedings. Exhibit A was tendered and admitted
without obiection.

The terms of exhibit A were therefore pleaded and exhibit A was
before the court to support the pleading along with the written
deposition of the witness rt is therefore not correct to contend
that the terms of exhibit A were not demonstrated before the court
Furthermore the authenticity of exhibit A was never challenged by
the appellant at the trial court.

Clearly therefore, the Tribu
nal was wrong when it
found that since the documents tendered from the Bar were not
demonstrated in open court by their makers, they had been dumped on
her. They were not dumped. Their authenticity was not challenged
and it was not necessary to call their makers, as they had also
used them to cross-examine the witnesses who tendered them. That is
the current position of the law and I am bound thereby. Issue No. 2
is resolved in favour of the appellants and against the
respondents.

ISSUE _NO. 3

Whether the learned trial judges of the Tribunal were correct in
the view and conclusion they reached that the votes recorded in
Exhibit P4082 (Card Reader Report) need not tally with the votes
declared in the final result of the election when there was
unrebutted testimonies from all the witnesses and provisions of the
Manual for Election Officials and Guidelines that there must be
unanimity as to the number of votes and the card reader report and
the total votes declared in Exhibit P2 (Form EC8D).

Learned counsel in this issue, submitted that by the evidence of
PW62 at pages 978 -980 of the record, the results in Exhibit 4082
and P2 which are the card-reader report and the Form containing the
results of the votes cast, must not be at variance and must tally –
the depositions of the witnesses for the appellants (PW62) at
paragraphs 36 & 50 page 579 and the evidence of RWI, RW2 and
RW3 under cross-examination. He then criticised the position of the
Tribunal that the information in Exhibit P4082 is inadequate and
not useful in determining the challenge by the Petitioners — pages
1240 — 1241 of the record. He also faulted the speculation of the
Tribunal, that some votes were rejected or that some accredited
voters had failed to vote, which was almost an impossibility since
accredited voters do not have the opportunity to leave the polling
unit since they were required to proceed to vote immediately they
were accredited. He submitted that it was dangerous for a court to
speculate or conjecture – ARCHIBONG vs. ITA (2004) ALL FWLR (PT.
197) 930 at 955. He referred to exhibits P4083 AND P4084 pages 31 —
33 of the record.

On abandonment of pleadings, learned counsel referred to the
decision of the Tribunal at page 1220 of the record, where it
restricted the relevance of the evidence of PW2 to Exhibit 2 since
he was present at the State collation centre and participated. As
he was not in the other polling units challenged, the Tribunal
deemed abandoned, the pleadings in respect of 1389 out of 1,426
polling units.

The Tribunal therefore considered only 37 polling units in
respect of which evidence was called it said. Learned counsel
submitted that this was perverse since it was as a result of
failure to consider and evaluate the evidence of PW62 and RWI, RW2
and RW3. Counsel drew the attention to the chart made at pages 22
23 of the brief to show the discrepancies on the entries in
Exhibits P4082 and P2, showing the votes did not tally with the
accredited voters. He urged us to resolve the issue in favour of
the appellants.

Learned counsel for the 1 st respondent referred to the
Guidelines of INEC on when votes are to be declared null and void,
at paragraphs 23 (a) and (b) and submitted the allegation of the
appellants did not come within those paragraphs and so could not
amount to non-compliance and even more fundamentally, amount to
substantial non-compliance with the Electoral Act which
substantially affected the result of the election

Section 139 (1) of the Electoral Act, NGIGE vs. INEC (2018) 1
NWLR (Pt. 1440) 281 at 329 and EZEANUNA vs. ONYEAMA (2011) 13 NWLR
(Pt. 1263) 36 at 73 A – B. He argued that the evidence of 27
witnesses were hearsay and so inadmissible. He was emphatic, that
the card-reader could not be given the importance and relevance the
appellants gave it, relying on IKPEAZU vs. OTTI (2016) 8 NWLR (Pt.
1513) 38 at 100; NYESOM vs. PETERSIDE (2016) ALL FWLR (Pt. 842)
1573 at 1636 and OKEREKE vs. UMAHI (2016) 11 NWLR (Pt. 1524) 438 at
480.

Learned counsel for the 3 rd respondent argued that the position
of the appellants on this, is based on accreditation or
non-accreditation/over-voting and that can be proved only if the
voters registers are tendered. He argued that Exhibit P4082
tendered from the Bar has no evidential value and even if it has,
accreditation process can only be compared with the smart
card-reader and Form EC8As, with the number of accredited voters on
the polling units results, contrary to the position of the
appellants.

Learned counsel argued that
from the evidence of PW62,
the total votes cast, is the total valid votes added to the
rejected votes and those who failed to vote, which must tally with
the accredited votes since this was not provided here, the
comparison by the appellants could not be correct. He referred to
paragraphs 23(a) and (b) of the Regulations and Guidelines of INEC,
which the other respondents referred to.

Learned counsel for the appellants replied by referring to pages
31 — 33 of Exhibit P4083 to submit that unlike previous elections,
the 2019 elections did not leave room for accredited voters to
leave the voting centre without voting. That PW62 did not give
hearsay evidence.

I am unable to agree with the 3 rd respondent and the Tribunal
in respect of the issue of the tally of votes. This is because by
clause 10 (a) of Exhibit P4084, in accordance with section 49 (2)
of the Electoral Act, an intending voter is to be verified by the
use of the Smart Card Reader (SCR). By clause 10

(b) therefore, any official of INEC who violates clause 10 (a),
shall be guilty of an offence and shall be liable to prosecution.
This underscores the importance of a smart card reader in the
process of an election.

Regulation 28 (a) (tv) of the Regulations and Guidelines for the
conduct of Election 2019, requires the Registration Area/Ward
Collation Officer, to compare the number of voters verified by the
Card-reader, with the number of accredited voters and total votes
cast for consistency.” Nothing is said therein about rejected
ballot papers or accredited voters who failed to vote. This is
further established by the evidence of PW62 in his witness
statement on Oath at paragraph 36, page 579 of the record, where he
deposed that,

“….1 know as a fact that the process of election in this Local
Government is that the total number of accredited voters must tally
with the number of votes cast in the election, such that the total
number of valid votes and rejected votes must be the same with the
number of accredited voters, “

This PW62’s evidence was not controverted. He also spoke to the
documents tendered which include Exhibit P4082 (the smart card
report and exhibit P2) which I have earlier held were not dumped on
the Tribunal as they were not challenged at all at the Tribunal.
Further, under cross-examination, RWI stated

“Yes I am familiar with the INEC Manual and Guidelines
regulating election, r know accreditation and voters accredited.
Accredited voters must tally with the number of votes cast. “

With the above, it is a total misconception and erroneous, for
the Tribunal to hold as it did at pages 1240 1241 Of the record,
that the total number of accredited voters will not tally with the
total valid votes cast. That was what the regulation required and
it should have been observed.

As stated by the respondents, at page 3 of Exhibit P2, there are
alterations on total votes in about two columns on the face of the
exhibit There is no explanation proffered as to why those
alterations have been made. There is also no evidence by INEC, as
to how many invalid votes there were if any, and how many
people—failed—to—vote after they were—accredited. This-as..

unfortunate. It simply means that the Resident Electoral
Commissioner whose responsibility it is, to ensure correct
authentic and clear entries are made by staff under him, did not
carry out his supervisory role adequately for the public to have
confidence in the Rules and Guidelines made by INEC itself, for a
proper and due election. Also when votes did not tally, as required
by clause 10 (b) of Exhibit. P4084, some explanation from INEC was
required as to whether some accredited voters refused to vote and
left or that some votes were invalidated. It would have shown
concern and responsibility. The lack of explanation, shows that the
guidelines were not followed and the leadership of INEC in that
State must bear the blame since the country has been engaged in
building and consolidating the system, to entrench accountability
and purposefulness. If proper supervision of the staff was made,
such serious lapses capable of causing the problems leading to the
allegations in the petition would not have been reared.

As there was credible evidence before the Tribunal, which if it
had evaluated properly, the Tribunal would have found that the
number of accredited voters should tally with the total votes cast,
unless of course adequate explanation was proffered. As it is, the
IKPEAZU vs. OTTI (SUPRA); NYESOM vs. PETERSIDE (SUPRA) and OKEREKE
vs. UMAHI on the tally of votes between number of accredited voters
in the smart card reader and total number of votes cast was not in
issue in them. This was introduced in the 2019 INEC Regulations and
Guidelines for the conduct of Election. Issue No. 3 is resolved in
favour of the appellants.

ISSUE NO. 4

Whether the learned trial
judges of the Tribunal
were right in holding that all the 27 Ward Collation Agents gave
hearsay evidence and that the testimony of PW62 in particular was
not sufficient to establish the unlawfulness of the votes
accredited to the 2 nd and 3rd respondents at the disputed
election.

Learned counsel submitted that this Issue is about the finding
of the Tribunal, that all the 27 Ward Collation Agents gave hearsay
evidence and that the testimony of PW62 was not sufficient to
votes—credited to the 2 nd and 3 rd respondents at the disputed
election. That the Tribunal found that their evidence was not of
the eye witnesses of what transpired at the polling units with
respect to the votes cast and so, their evidence was hearsay. He
submitted that since some of the 27 witnesses testified that they
moved around their wards and Local Governments on motor cycles,
their evidence was that of an eyewitness – IBRAHIM vs. OGUNLEYE
(2010) LPELR 4556 (CA) and PDP vs. EL-SUDI & ORS (2015) LPELR —
26036 (CA). He emphasised that the Tribunal did not find their
evidence unreliable or incredible — Section 126 of the Evidence Act
2011. Counsel submitted that 27 witnesses tendered documents for
their wards, which were not challenged and they were cross-examined
by the respondents.

On sufficiency of the testimony of PW62 to establish the
unlawfulness of the votes credited to the 2nd and 3rd respondent,
learned senior counsel submitted that the evidence of PW62 was in
respect of the entire area in contention, having identified 4162
exhibits, tendered by the appellants. That he stated that P2 has
fictitious figures contrary to the entries made in form EC8A,
EC8B,

EC8C, and that his evidence was not countered by the
respondents. That the evidence of RWI confirmed at page 982 that
there were alterations on Exhibit P8. That by AREGBESOLA vs.
OYINLOLA (SUPRA), ward collation agents, ward supervisors and Local
Government Collation Agents are competent witnesses, if their
evidence is direct, credible and reliable.

Since PW62 said that only 5 out of 33 Local Governments in Oyo
State were the Total number of votes cast equal to the number of
accredited voters and so valid, this was a serious infraction he
argued and submitted that the election could not be free and fair.
He urged us to resolve the issue in favour of the appellants.

Learned senior counsel for the 1 st respondent submitted that
the position of the Tribunal is right as all the 27 witnesses of
the appellants in issue were not physically present in the polling
units. They were there only in spirit and they cannot give
eyewitness account of what transpired. That made their evidence
hearsay. Further, that the evidence of PW4 and PW28 were
discountenanced by the Tribunal for failure to tender the Yoruba
version of the English translation of their statements on oath,
Learned senior counsel for the 2 nd respondent re-iterated the
position of the Tribunal and other respondents. He cited the cases
of DOMA vs. INEC (2012) 13 NWLR (Pt. 1317) 297 at 321; BUHARI vs.
INEC (2008) 19 NWLR (Pt. 1120) 246 at 424; EZEAZODOSIAKO vs. OKEKE
(2005) 16 NWLR (Pt. 952) 612 at 630 and ANDREW vs. INEC (2018) 9
NWLR (Pt. 1625) 507 at 557 and 583.

It is not controverted that the authorities relied upon by the
Tribunal and the respondents, have clearly established the fact
that polling agents are important witnesses when it comes to giving
evidence as to what they saw in their respective jurisdictions.
That would be eyewitness evidence which would be admissible and
relevant. In all these authorities, the witnesses gave evidence on
issues they did not see or witness with their eyes and their
evidence amounted to hearsay and therefore inadmissible. For
instance, jn DOMA vs. INEC (SUPRA) the Supreme Court at page 321
held that “It is basic that a person who says he was on/y in the
po//ing unit where he voted on the day of the e/ecffon would not
know of malpractices that happened in other po//ing units. To that
extent, the evidence ofPW14 and PW44 is c/ear/y hearsay, Same is
not in tune with the provisions of section 38 of the Evidence Act
2011. “In BUHARI vs. INEC

(SUPRA) at page 424, Tobi JSC of blessed memory held that “An
agent is the representative of a// the candidates in the po//ing
stations He sees a// the act/vit/&s. He hears every talk in the
station. He a/so sees a// actions and inactions in the station, Any
evidence given by a person who was not present at the po//ing units
orpo//ing booth like the Appe//ant is certain/y hearsay… , , “In
ANDREW vs. INEC (SUPRA) at page 557 Okoro Jsc held that

The requirement of the law is that a Petitioner must cal/ eye
witnesses who were present when the entries in the forms were being
made and can testify to how the entries in the documents were
arrived at

Those cases are authorities of what they decided and the central
theme in them is that for a person to be able to give evidence of
what happened, he had to have observed same. It therefore follows
that a person who was present during the process and personally
witnessed it, can give evidence and it will not be hearsay, even on
the authorities above recounted. See

FRANCIS OKOYE vs. ANUBIKE (2015) LPELR – 40664

(CA). The point of emphasis is not whether a witness was a

polling agent or a collation agent. Even if he was no agent at
all, once a person was present at a polling place or a collating
centre during the activity complained about, even if he was there
unlawfully, when he was supposed to be somewhere else, he is still
a competent person to give evidence as to what he saw or observed,
his illegal presence notwithstanding. His evidence will not be
regarded as hearsay, since it is coming from an eye witness – YUSUF
LASUM vs. ADEJARE (2011) LPELR 5116 (CA) and PDP vs. EL-SUDI (2015)
LPELR – 26034

In the instant appeal, there is evidence that some of the 27
witnesses whose evidence the Tribunal regarded as hearsay said they
moved around their wards and Local Governments on motor cycles on
the Election Day and saw what happened. That evidence had not been
dislodged and the Tribunal did not disbelieve them. We find that
evidence relevant, believable and admissible. It is not hearsay,
contrary to the finding of the Tribunal. The evidence of PW62 is
also relevant, believable and was not dumped on the Tribunal, which
is what we earlier held.

because

However, there is a sore thumb as to the evidence. Since it was
only “some” of the witnesses who said so, how many of them? Again,
the evidence of PW4 and PW28 were discountenanced not to the
failure to tender the Yoruba version of the English translation of
their statements on Oath, There was therefore no way to know for
certain the correctness of the English translation. Be that as it
may, having held that the evidence of some of the 27 witnesses
could not be held to be hearsay, Issue No. 4 is resolved in

favour of the appellants against the respondent.

Now, from the evidence we have re-evaluated, was it sufficient
for PW62 to establish unlawfulness of the votes and did the
evidence of the witnesses led properly before the Tribunal
establish the non-compliance required to grant the reliefs prayed
for by the appellants?

It is clear that the votes did not tally i.e. the total number
of the accredited voters and the total number of votes cast have
not tallied as required by the INEC Regulation and Guidelines for
the conduct of Elections. That is what we held earlier to be the
noncompliance. Has there been a comparison with the votes that did
not tally with the votes scored to see what the final votes would
be, so that the election could be affected?

48 Furthermore, the non-compliance is in respect of the INEC
Regulations and Guidelines-fox-the-Conduct-oütheQ01EElect[on

in Nigeria, not the Electoral Act itself. Whereas, the position
earlier held by this Court when it was the final destination
for

Gubernatorial appeals such as in FAYEMI Vs. ONI (2009) 7 NWLR
(Pt. 1140) 223 at 285 H – 286A, is that noncompliance with INEC
Manuals amounts to non-compliance with the Electoral Act, the
current position for now, is to the contrary.

In NYEMSON vs. PETERSIDE (2016) ALL FWLR (Pt. 842) 1573 at 1660,
the Supreme Court held that in section 138 (2) of the Electoral Act
2010 as amended,

“….it is clear that as long an act (commission) or omission in
relation to guidelines and regulations is not contrary to the
provisions of the Act, it shall not in itself be a ground for
questioning an election…. “

In IKPEAZU vs. OTTI (SUPRA) at page 1980 the Supreme Court in
considering INEC Regulations and Guidelines held that

more importantly, whichever angle both exhibits

viewed, they cannot ground

nullification of the election of the appellant. “

This is sequel to the provision of section 138 (1) (b) of the
Electoral Act 2010 as amended, that a challenge on noncompliance is
to the provisions of the Electoral Act. It has been argued that it
is the provision of the Electoral Act in section 153 that gave INEC
the power to make regulations, guidelines or manuals, and so these
three instruments if made, should have the same effect with the
Act, once they are not contrary to it, otherwise they will be
toothless, especially when non-compliance with them is an offence.
But until the Supreme Court looks at the issue again, we are bound
by its decision, and we cannot nullify an election on the basis of
non-compliance with INEC Regulations and Guidelines.

We have already held under Issue No. 1, that the Tribunal had
failed to properly evaluate all the material and relevant evidence
placed before it, which resulted in its decision to be perverse as
it failed to take into consideration relevant evidence it

50

ought to have taken and the finding had been reached as a result
of a-wrong-approach orprinciples ofrlawz-ld-procedure MTN vs.
COMMUNICATION INVESTIMENT (SUPRA) at page

453 E — F. We have also re-evaluated the evidence as we are
enjoined to so do.

We therefore hold that the judgment of the Tribunal was perverse
and had violated the fair hearing principles the appellants ought
to have enjoyed from the Tribunal. We set it aside. However in our
further evaluation of the evidence led and the current position of
the law, we cannot nullify the election. It js only when the
election is nullified that the reliefs of either returning the 1 st
appellant as duly elected, or ordering a fresh election can be
granted. Again, since we have re-evaluated the evidence and have
come to a conclusion, the issue of Ordering a re-hearing of the
Petition does not arise, even if there is still time to do that. We
therefore maintain our position in setting aside the judgment of
the Tribunal delivered on the 16th of September

2019.

No Order as costs.

ABUBAKAR A IYAHAYA
JUSTICE, COURT OF APPEAL
51

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