JUDGMENT (Delivered by Uwani Musa Abba Aji JSC-SC/CV/1165/2023)

The 3rd Respondent (INEC) conducted the Governorship Election for Zamfara State on 18/3/2023. The Appellant, Dauda Lawal, was the candidate sponsored by the 4th Respondent, while the 1st Respondent, Bello Muhammad Matawalle, was the candidate sponsored by the 2nd Respondent. At the conclusion of the election, the Appellant, having scored the highest number of lawful votes cast, was declared the winner of the election and was duly returned.

The Appellant polled the total of 377,726 votes while the 1st Respondent polled the total of 311,976. The difference of votes between the 3rd Respondent and the 1st Respondent is 65,750.

Dissatisfied with the declaration and return of the Appellant, the 1st and 2nd Respondents filed a Petition before the Zamfara State Governorship Election Petition Tribunal which sat in Sokoto, Sokoto State, and challenged the election and return of the Appellant on two grounds.

The trial Tribunal delivered its judgment on the 18/9/2023, and dismissed the Petition as unmeritorious. Peeved by the decision, the 1st and 2nd Respondents appealed to the lower Court, which on 16/11/ 2023, delivered its judgment and allowed the appeal of the 1st and 2nd Respondents and
ordered that:

A. That the gubernatorial Election held in Zamfara State on the 18th day of March, 2023 is inconclusive and the return of the 1st Respondent by the 3rd Respondent is hereby set aside.

B. The 3rd Respondent is hereby directed to hold fresh election in Maradum Local Government and affected polling Units in Birnin Mogaji Local Government and Bukuyum Local Government. My learned brother that delivered the lead judgment has covered much in his reasoning and conclusion of the judgment. May I just peep in.

The case of the lst and 2nd Respondent as revealed by them is that the “declaration of result in Form EC8E was wrong.

This is for the reason that the result of Maradun Local Government in Form ECC, was not reckoned with in arriving at the entries in Form EC8E”.

You cannot jump the guns or put the cart before the horse in election petition, by abandoning Form EC8A, which ought to be the basis and foundation for proving polling unit results, and use the ward result or local government result.

Any other Form or document or evidence other than that which emanates from the polling unit may be used to ascertain election result or to compare with, but cannot  serve as a primary and direct evidence for the purpose of proving election petition, since it cannot bear what directly transpired at the polling unit, but what has been transferred or copied.

Forms EC8A, (Exhibits R1A-R10A) in this case, are the primary evidence of the election and ought to be preferred to Collations in Exhibits P163-P175, P182C and R12C in the upper hierarchy of the election. Exhibits RIA-R10A (EC8A) is the primary document the Respondents ought to have been used to prove the wrong entries made into Exhibits P163-P175, and not the other way round or vice versa. Even if Exhibits RIA-R10A (EC8A) appeared mutilated, blurred and illegible to read, they ought to have been used for the purpose of confirmation and not to be discarded or relegated to the back. It forms the vital and direct evidence or document to be used. Besides, if there was conflict in the document or mutilation, oral evidence would have been called to settle it, but it was too late to do.

that since the lower court did not have the jurisdiction and ought not to have resolved it the way it did.

Besides, any other Form or document is susceptible or amenable to tampering or doctoring unlike form EC8A, which is always done in the presence of all witnesses and election stakeholders. It is a document produced from consensus and agreement of parties and witnesses present in an election at the polling unit, and can hardly come to be if there is a dispute to it. One of the reasons and wisdom behind poling unit by polling unit proof or disproof of election petition is that the wrong committed therein can be excised and cut off without affecting the bigger unit like the ward, local government or state as the case may be, and not to disenfranchise a good number of eligible and valid voters or deny them the exercise of their civic responsibility.

Furthermore, it is the ground for obtaining and testing direct evidence or eyewitness report. Results generated from Polling Units are the foundation upon which every election is predicated. See the case of Buhari V. INEC (2008) LPELR-714 (SC) Pp. 172-173, paras.E-D.

The 1st and 2nd Respondents ought to have proved the polling Units affected Maradun LGA and not to ask this court to order for a fresh election in a whole LGA without specificity or particularization of the polling units affected.

The court must be wary to order for a fresh election, especially considering the costs and risks that may be involved as this pertains a restive State like Zamfara.
In NWOBODO V. ONOH (1984) 15 NSC 1 @ P. 22 lines
33-35, this court held inter alia that “To prove the falsity beyond reasonable doubt of the collated results of the deputy returning officers, a petitioner must not only prove the results collated by the assistant returning officers but must also prove the votes counted by the presiding officers and the scores of each candidate at the polling booths which were the basis of the collation. Production of the results of the poll counted at the polling booths by the presiding officers is an essential element of the burden of proof under
the circumstances of the petition…”
Similarly, in UZODINMA & ANOR V. IHEDIOHA & ORS
(2020) LPELR-50260(SC) AT P. 32 PARAS. D-F, the Court, per Kekere-Ekun, JSC., held that “However, in the instant case, the contention was that at the ward collation stage, votes scored by the appellants were unlawfully excluded.

The documents required to prove this allegation would be
Form EC8A series, which is the primary evidence of an election i.e. statement of results from polling units and Form EC8B, the ward collated results.”

In the instant appeal, INEC, the electoral umpire did not see anything wrong, after due computation and diligence, to declare the Appellant as winner, even when the 1st Respondent was in power or was the incumbent. In appeal SC/CV/1167/2023, INEC also appeal against the judgment of the lower court since they are not satisfied with it.

What admission then did they make that favours the 1st and 2nd Respondents?

Since the 1st and 2nd Respondents had their agents present in all the polling units in Maradun LGA, and were given copies of Form EC8A or signed same or consented to the making or filling of same, why did they not produce it?
And if the said Exhibits RIA-R10A were mutilated as alleged, why were their witnesses not called to affirm so?

Presumably, it may work against them or be admission against interest! The trial Tribunal, who had the precinct and opportunity of seeing documents firsthand and directly and to observe the demeanour of witnesses admitted Exhibits RIA-R10A and did not see anything wrong with them. The lower court that saw them contained  in pages 527-709, cannot be said to be the direct and firsthand copies but went through photocopy or duplication to make them appear so. See the lower court judgment at page 2368 of Vol. IV of the record.

Furthermore, I agree with the Appellant’s learned Silk that the IREV may not be a collation system but can be resorted to and used when necessary for collation. The trial tribunal did not rely on it as a direct portal or collation system or as full-proof evidence but it was a fall back in order to ascertain the election results from Maradun LGA.

To discountenance Exhibit R12C as a basis for rendering Maradun LGA election result inconclusive without relying on the polling unit by polling unit result or evidence is not correct and unhelpful. INEC is not a rival, interested or competing party with the 1st and 2nd Respondents.
 As a neutral party, it saw the need and wisdom to rely on Exhibit RI2C. So, I wonder why the lower court used it as a basis for the inconclusiveness of the Maradun LGA election result.

This court held that “there is no part of the Electoral Act and
INEC Regulations and Guidelines that require that election result of a polling unit should on the spot during the poll be transmitted to the INEC National Election Register or data base.

Rather, the Regulations provide for the BVAS to be used to scan the completed result in Form EC8A and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result viewing Portal (IReV)”. See Per AGIM, JSC in OYETOLA & ANOR V. INEC & ORS (PP. 21 PARAS. A).

If there was an admission by INEC that the score in Exhibits RIA-R10A and P163-P175, was unreliable, which reliable or correct score did INEC present? Surely, not the one the lower court upheld, otherwise the trial Tribunal would not have given the judgment it did.

The Appellant argued at page 6 paragraph 4.4 that
“…PW19 who appeared to be more interested in the victory of the 1st Respondent failed to collate the Maradun Local Government Area result correctly… PW19 in the collation of the aforesaid result surreptitiously inflated the figure of the 1s respondent from 27,070 to 98,506 votes and deflated the score of the Appellant from 13,353 to 618 votes. See paragraph 31 of the petition at page 17 of Vol. 1 of the record.

Thereafter, PW19 produced a duplicate copy of Form ECSC, which was admitted in evidence as Exhibit P182C”. If this is so as revealed by the record, why would the evidence of PW19 or Exhibit P182C, be accepted by the lower court without wariness and circumspection?
Moreover, the 1st and 2nd Respondents by the record in Maradun LGA are leading with a wide margin of gap, what magic are the expecting from the result in Maradun LGA? By the contradictions between Exhibit P182C and Exhibit R12C, which are both Local Government results for Maradum, Exhibit R12C being certified true copy issued by (INEC), and the other Exhibits P182C being duplicate copy
admitted to be illegible even by the maker himself (PW19), what the lower court ought to do in view of the existence of Exhibits R1A-R10A and Exhibits P163-P175 is to fall back to same Exhibits RIA – R10A and Exhibits P163 – P175 to re-compute the result of Maradun Local Government.

By the revelation at Pages 1909-1910 of Volume III of the Records that PW19 admitted that he could not only see what he wrote himself as per EXHIBIT P182C, but PW19 further confirmed that EXHIBIT P182C was not the actual results of the election but that he acted under duress to generate same. A look at Exhibits P163-P175 will be

• manifestly clear that the Duplicate copy of form EC8C credited to PW19 as the maker would have no correlation.

The 1st and 2nd Respondents (Petitioners) after tendering Exhibit P182c failed to tender the primary result sheets from the polling units of the Maradun Local Government i.e the Form EC8As. Exhibits P163 – P175 show that the 1st and 2nd Respondents were credited with a total score 27,070 votes
while the 3rd Appellant was credited with 13,357. PW19 failed to shed light as to how 27,070 scored by the 2nd Respondent in Exhibit P163-P175 metamorphosed to 98,506 votes in the blurred Exhibit P182C.

How did the Court of Appeal arrive at that conclusion?

Witnesses were not called to give oral evidence, the foundational evidence needed to proof non-compliance were not tendered as well. The court only relied on the alleged ineligibility of Exhibit R12C to hold that the 1st and 2nd Respondents had successfully discharged the burden placed on them. If Exhibit R12C had no probative value, the Court of Appeal was wrong to have totally ignored Exhibits RIA- RIOA which would have clearly shown that Exhibit P182C tendered by the Ist and 2nd Respondents was grossly incorrect. A simple surface calculation of Exhibits R1A-R10A will lend credence to Exhibit R12C which was in fact legible.

I completely agree with my learned brother, Emmanuel Akomaye Agim, JSC, that the appeal be allowed and is hereby allowed.