Dauda Lawal Vs. Bello Muhammad Matawale & 3ors, Judgment Delivered by   Emmanuel Akomaye Agim, JSC IN SC/CV/1165 / 2023

SC/CV/1165 / 2023

JUDGMENT
(DELIVERED BY EMMANUEL AKOMAYE AGIM, JSC)

On 18-3-2023, the general election of Governor of Zamfara State held in Zamfara State and the result was declared by the 3°0 respondent on 21-3-23, stating that the appellant scored majority of lawful votes numbering 377,721 and that the 15 respondent scored lawful votes numbering 311,976. The 3rd respondent declared the appellant winner of the election and returned him elected as Governor of Zamfara State, having satisfied the two cumulative requirements prescribed in S.179(2) of the Constitution of the Federal Republic of Nigeria (the 1999 Constitution) to be deemed duly elected as such Governor. The 15 respondent who had the second highest number of lawful vote disagreed with the declared result and on 10-4-2023 filed a petition in the Zamfara State Governorship Election Tribunal on the grounds that the 1 respondent to the petition (appellant herein) was not duly elected by majority of lawful votes cast at the election and that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act 2022.

The petition states that the appellant did not score majority of lawful votes because the votes stated as scored by each candidate in the result of the election in each polling unit of Maradun Local Government Area of Zamfara State declared by the 3 respondent herein were not the actual votes scored by the appellant and the 15 respondent herein in that election as those votes were different from the votes stated in the agent duplicate copies of the polling unit result given by the presiding officer of each polling unit to their party agent in each polling unit, immediately after the signing of the result by the presiding officer, Police officer and Party agents as required by S.60(1)(2) and (3) of the Electoral Act 2022. In other words, that they were two versions of the result in Form ECSA for each polling unit in Maradun Local Government Area, namely, the INEC top original copy containing the votes declared as scored by the candidates and the duplicate copies of the polling unit result given by the presiding officer of each polling unit to their party agent in each polling unit, that the votes scored stated in the INEC copy of Form ECSA and declared is completely different from the votes Stated as scored by each candidate in the duplicate copies returned to the 1st and 2a respondent herein by their party agents at the polling unit, that the correct and actual votes scored in each polling unit in the wards of Maradun Local Government Area are the ones in the said duplicate copies and that the votes stated and declared by each candidate in the INEC copy are not correct.

Paragraph 24 of the petition tabulated the alleged actual votes scored in each polling unit in all the wards of Maradun Local Government Area. Paragraph 28 states that the actual total votes scored by the 1 petitioner in Maradun Local Government Area is 98,506 as shown in the agent duplicate copy of Form ECSC and not the 24,858 declared by INEC in their copy, that the actual total votes scored by the appellant and his party PDP is 618 and not the 12,261 declared by INEC and that if the actual votes scored by the petitioners (1st and the 1st respondents herein) were recorded, collated and declared, the petitioners would score majority of lawful votes of 385,627 while the appellant herein would score 365,003 votes, that the 15 petitioner ( 15 respondent herein) was actually the winner of the election and that the actual accredited votes in Maradun Local Government Area as contained in agent duplicate copy of Form ECSC is 101,652 and not the 38,435 in the INEC copy of Form ECSC. The petitioners in paragraph 30 of the petition stated that thusly- “The petitioners avers that by the actual score of candidates at the Election as contained in the actual Form EC8A, EC8B and ECSC given to agents of the Petitioners during the conduct of Zamfara State Governorship Election, the petitioners would have won the election even without conducting elections in the four (4) registration areas of Birnin Magaji Local Government namely; Kiyawa, Dan Fami/Sabon Birnin/Dan Ali, Nasarawa Godeal East and Gora.”

The other grounds for the petition are that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act in that elections did not hold or were cancelled in the polling units named and listed in tables in paragraphs 51-57 of the petition in Birnin Magaji, Anka, Gunmi Bukkuyum, Bungudu, Talatar Mafara, Shinkafi, Zurmi, Tsaffe and Maru Local Government Areas across the State, that the total number of registered voters in those polling units is 88,760 which is above the 67,750 votes margin of lead in the deciared results in Form ECSC, that therefore the election should have been declared inconclusive and a fresh election held in those polling units instead of declaring the appellant the winner of the election, that there was no accreditation of voters, over voting in many poling
units in the wards named in Bukkuyum, Shinkafi, Anka, Bungudu, Kaura Namoda, Birnin Magaji, Bakura, Tsafe and Gummi LocaL Government Areas, that the number of registered voters in polling units where there was over voting, no election and no accreditation is 121,137, which is far above the margin of lead between the declared winner of the election and the candidate with second highest number of votes cast and that therefore the election ought to be declared inconclusive.

The trial Tribunal considered the evidence adduced by the petitioners to prove the above grounds and the evidence of the respondents to the petition and the arguments of all parties and decided that the petitioners’ evidence did not prove the allegations in the petition and dismissed the petition.
Dissatisfied with this judgment of the Tribunal, the petitioners (1st and 2°* respondents herein) appealed to the Court of Appeal against the said judgment. After considering the arguments off all the parties to the appeal before it, the Court of Appeal, after finding that the Tribunal did not properly evaluate the evidence before it and that the evidence adduced by the petitioners proved their case on a balance of probabilities, allowed the appeal in part, ordered that the election of Governor of Zamfara State on 18/3/2023 was inconclusive, set aside the return of the 15 respondent to that appeal (appellant herein) as winner of that election and directed INEC to hold fresh election in Maradun Local Government Area.
Dissatisfied with this Judgment of the Court of Appeal, the appellant appealed to Court against that Judgment.
The appellant, 1st and 2 respondents herein have filed, exchanged and adopted their respective briefs. The 3rd and 4th respondents conceded to the appeal and therefore filed no brief.

The appellant’s brief raised the following issues for determination –
i. “Whether in view of Exhibits RIA-R10A and Exhibits P163-P175, the court below was right to order for a fresh election in Maradun Local Government Area (Grounds 1 and 2).
ii. Whether by virtue of clause 57,62 and 67 of the Regulations and Guidelines for the conduct of.
Elections and Exhibits P202G-P266G, THE 15 AND 2ND Respondents were able to establish the margin of lead principle in the instant petition to justify the court below declaring the Zamfara State Governorship Election inconclusive and ordering fresh elections in BirniMagaji and Bukkuyum Local Government Areas. (Grounds 3,4 and 5)
ii. Whether, despite the failure of the 1st and 2nd Respondents to appeal against the decision of the Tribunal that the margin of lead principle relates to the total number of voters who actually
collected their permanent Voters Cards in the Polling Units, the court below was right to have dismissed the Appellant’s Motion on Notice dated
19-10-23 and filed on 20-10-23. (Grounds 6 and 7)

iv. Whether the court below was right to grant both the substantive and alternative reliefs in this petition (Grounds 10)
v. Whether the court below was right when it relied on Section 137 of Electoral Act, 2022 and held that the evidence of PW1-PW18 are not hearsay and the said evidence were linked to specific aspects of the 15t and 2d Respondents’ case (Grounds 9 and 14)
vi. Whether the court below had the jurisdiction to entertain and pronounce on the issue of noncompliance on the basis of Ground 2 of the petition
(ground8)
vil. Whether in the absence of any ground of appeal on evaluation or weight of evidence, the court below was right to re-evaluate evidence and to hold that 1st and 20d Respondents proved their entitlement to the reliefs sought. (Grounds 11, 13 and 17).
vili. Having found that Exhibit P182C was not legible, whether the court below was right to rely on Section 137 of the Electoral Act, 2022 to hold that Exhibit P182C showed non-compliance. (Ground
15)
ix. Whether there was any pleading and proof that Exhibit R12C was mutilated to justify the decision of the court below that it lacked probative value.
9 Ground 12)
x. Whether the court below was right to hold that the order of the Tribunal striking out paragraphs 24,52-59 and 61 of the petition was erroneous.
(Ground 16).”
The 15 and 2ndrespondents’ brief raised the following issues for determination –
iii.
i. “Whether in view of Exhibits RIA-R10A and Exhibits P163 – 175, the lower court was right to order a fresh election in Maradun Local Government Area 9Grounds 1 and 2)
il. Whether the decision of the lower court to order fresh election in Maradun, Birnin Magaji and Bukkuyum was perverse and occasioned a miscarriage of justice. (Grounds 3, 4, 5, 6 and 7).
Whether the lower court was right to have granted the part of the substantive and alternative reliefs in the petition (Ground 10)

iv. Whether the lower court was right when it held that the evidence of PW1-PW18 were not hearsay but linked the evidence on record to specific aspects of the 15 and 2″* Respondents’ case, in line with the Electoral Act, 2022. (Distilled from Ground 9 and 14)
V. Having failed to appeal against the specific finding of the trial Tribunal before the lower court affirming Ground 2 of the petition whether the Appellant can raise that point at the Supreme Court. (Ground 8).
vi. Whether the lower court was right when it re-
evaluated the evidence before the court after it held that the trial Tribunal failed to properly
evaluate the evidence before it. (Grounds 11, 13 and 17).
vil. Whether the lower court was correct to re-
evaluate the documents before it relying on section 137 of the Electoral Act, 2022. (Ground
15).
vili. Whether the lower court was right to have held that exhibit R120 lacked probative value because it was muthlated with series of cancellations, without countersigning. (Ground 12).
ix. Whether the lower court was right to hold that the order of the Tribunal striking out paragraphs, 24, 52, 53, 54, 55, 56, 57, 58, 59 and 61 of the petition was erroneous. (Ground 16).”
I have carefully read and considered all the issues raised for determination in this appeal by the parties herein in their respective briefs and their arguments of those issues. I prefer to determine this appeal on the basis of the issues raised in the 15° and respondents’ brief as they encapsulate the issues raised in the appellant’s brief and are better couched.
I prefer to determine the issues together. Let me start with the issue of whether the Court of Appeal was correct in differing from or upturning the tribunal’s decision that the petitioner’s evidence did not prove the grounds of the petition and the facts alleged in support of the said grounds.
It is glaring from the pleading and evidence of the petitioners that the petitioners relied on the duplicate copies of the forms ECSA returned to them by their agents from each polling unit in Maradun Local Government Area for their case that the votes recorded as scored by the candidates in each polling unit in the INEC top copies of the forms EC8A are different from the figures recorded in the agents duplicate copies of those results, that the votes in the INEC copies declared by INEC as scored in each such polling unit by the candidates are not the actual votes, that the actual votes are as recorded in the said agent’s duplicate copies of the forms EC8A and not as recorded and declared in the INEC copies basis of which he challenges the INEC copy. The petitioners who stated in paragraphs 22, 23 and 30 of their petition that their poling agents in all the polling units in Maradun Local Government Areas were given duplicate copies of the polling unit results in Form EC8A for each of the said polling units by the respective Presiding Officers and who stated in paragraph 30 of the petition that by the actual score of candidates at the Election as contained in the actual Forms EC8A, EC8B and ECC given to agents of the Petitioners during the conduct of Zamfara State Governorship Election, the petitioners would have won the election did not tender any of the said agent’s duplicate copies in evidence to prove their case concerning the actual votes scored by each candidate in the polling units in Maradun Local Government Area.

It is obvious from the foregoing that the duplicate copies of the polling unit results that were given to their polling agent in each of the polling units constitute the foundation or fulcrum of the petition and claim of having scored 98,506 votes in Maradun Local Government Area. The petitioners who based their petition on the results contained in the duplicate copies of the polling units results in Maradun refused or failed to tender them in evidence to prove the existence of actual votes scored different from the votes in the results declared by INEC. The settled case law is that a party who alleges the existence of two results of an election and that one result is the actual or genuine result, must produce the two results in evidence and, if, as in this case, the INEC copy whose correctness is disputed is already in evidence, then the party challenging its validity or correctness must tender the second version of the result on the basis of which he challenges the INEC copy. It is obvious that without the said agent duplicate copies in evidence; the petitioner has no case against the correctness of the INEC copy of the result. It is impossible to dispute the correctness of the INEC copy of a result of election in a polling unit without evidence of the exact duplicate copy of the said result that was issued by the Presiding officer to the party’s agent or police officer on election duty at the relevant polling unit.

The Tribunal correctly held that the petitioners refused to tender the said duplicates because they do not support what they allege in their petition. The tribunal’s presumption is permitted by S. 167(d) of the Evidence Act 2011 which provides that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Their agents’ copies of the Form EC8A for all polling units in Maradun Local Government Area upon which the claim of alteration of the results for those polling units is based, is evidence which the petitioners must produce to establish their claim. By refusing to produce the said agent copies, they clearly withheld them from being evidence in the case. The Tribunal in keeping with S.167(d) of the Evidence Act 2011 correctly presumed that they did so because the said duplicate copies do not support their claim. See Ewugba V State (201) LPELR-4383(SC) and Okpoko Community Bank Ltd
Anor V Igwe(2012) LPELR -19943 (SC).

In any case it is the petitioners that desired the tribunal to hold that the total actual votes scored by the 15 respondent in all polling units in Maradun Local Government Area was 98,505 and that the actual votes scored by the appellant is 618 on the basis of the alleged actual results in the duplicate copies of the polling unit results in Form EC8A given to their agents by the polling unit presiding officers for polling units in Maradun Local Government Area. Therefore they had the burden to prove the actual votes scored in each polling unit in Maradun Local Government Area by producing the said duplicate copies of Form EC8A for each of the said polling units in evidence. This is so by virtue of 5.131 of the Evidence Act 2011 which provides that “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.” Without the said duplicate copies of the result in Form EC8A given to their polling agents, their case that actual votes scored exist in the said duplicate copies different from the scores in the INEC top copies or that there was alteration of the votes scored in all the polling units in Maradun Local Government Area collapsed.

The only evidence produced by the petitioners to prove their case that actual votes scored exist in the said duplicate copies different from the scores in the INEC top copies or to prove the alleged alteration of results in each polling unit in Maradun Local Government Area are exhibits P.163 to P.175 duplicates of ward
results in Forms EC8B and exhibit P182C, the duplicate copy of the Maradun Local Government Area collated result in Form EC8C which the petitioners said was given to their Local Government collation centre agent and the testimony of PW19 that collated the results in exhibit. P182C and signed it.

Exhibits P.163 to P175, ward results in Forms EC8B glaringly contradict the Local Government result in Form ECSC in exhibit P.182C on the total votes scored by the candidates from a summary of all the ward results in Maradun Local Government.

Exhibits P163 to P175 show that the petitioners scored a total of 2,070 votes and the appellant herein scored a total of13,353. But exhibit P182C state that the petitioners scored a total of 98,506 votes and the appellant herein scored a total of 618 votes. PW19 who made exhibit P182C, did not explain how and why he recorded 98,505 as total votes scored by the appellant and 618 as the total votes scored by the appellant instead of the total of the votes scored by them from the ward results in Form ECSB. he failed to explain why he recorded a massive increase in the total votes scored by the petitioners and a massive decrease in the total votes scored by the appellant herein and why 27,070 scored by the petitioners in exhibits P163 to P175 changed or transiated to 98,506 votes in Exhibit P182C. It is not surprising that he testified under cross-examination that the 98,506 votes recorded by him in exhibit P182C as the total votes scored by the petitioners is not the actual votes scored by them and the 618 votes recorded as the total votes scored by the appellant is not the actual vote.

The Tribunal found as a fact that exhibit P.182C had no probative value as it was discredited by the same PW19 that made it. The exact text of the said finding reads thusly- “With respect to FORM ECSC for Maradun Exhibit P182C the pivot of their claim of 98,506 votes in Maradun, we have reproduced the evidence of PW19 elaborately earlier in this judgment. PW19 the maker of exhibit P182C when tested under cross-examination admitted repeatedly that the writing is not clear. He could not see the scores in exhibit P182C. He stated categorically that APC did not score 98,505 votes. The result of 98,506 votes is not the actual result. Further that the score of PDP 618 is not the actual result. We hold that this lucid unequivocal admission by PW19 which lends credence to respondents’ case had discredited exhibit P182C.”

The Court of Appeal in its judgment concurred with the finding of the Tribunal that Exhibit P182 was not legible. The exact text of that finding reads thusly – “Exhibit R12C was used to declare result of Local Government. Exhibit P182C duplicate form EC8C for Maradun Local Government is
not iegible.”

It is not in dispute that the polling units results in the INEC top copies of Form EC8A for each ward agree with the summary of polling units results in ward results Forms ECSB in exhibits P163 to P175 declared by INEC. It is not in dispute that these declared results showed that the appellant won the elections in almost all the wards in Maradun Local Government Area as can be seen in the ward results in exhibits P163 to P175 tendered in evidence by the petitioners (18 and 2’* respondents herein). It is not in dispute that when W19 presented exents here at the state collation centre for collation, the appellant’s agents objected that it does not contain the correct results collated at the Local Government collation Centre because it was alleged that he, the PW19 had at some point gone away with State Government Officials to Government house and reappeared later with that result in exhibit P.182C, that owing to the protest, the State Returning Officer directed that the dispute be resolved by reference to the IREV, BVAS and INEC copies of Form EC8As to verify the entries in exhibit P.182C, that upon such verification, it was discovered that the results in Forms ECSB in the IREV were different from exhibit P.182C and that the records in the INEC copies of Forms EC8A and BVAS support the IREV, that the Returning officer directed that the results in Forms ECSB in the IREV be collated in Form EC8C as the Maradun Local Government result. It was produced and tendered in evidence as exhibit 2 RIC which contain the valid results as declared by INEC.

PW19 testified under cross-examination that exhibit P182C is not legible and not readable, that the petitioners did not score 98,505 votes in Maradun Local Government Area and that the actual votes scored are as recorded in exhibit 21C.

The decision of the Court of Appeal that Exhibit 21C lack probative value because political party agents did not sign or counter sign any alterations therein is perverse and contrary to law. Exhibit 2R1C was made from the results in Forms EC8B in the IREV Portal. The collated results in Forms ECSB for all the wards in Maradun Local Government Area support the results declared by INEC in exhibit R12C. The petitioners tendered in evidence exhibits P163 to P15, their agents’ copies of the duplicate of the said results in Forms EC8B, which results agree with the results in the INEC top copies of those results. The INEC top copies of all polling unit results in Forms ECSA support the summary of polling unit results in each ward in Form EC8B. The petitioners did not tender in evidence their agents’ copies of the duplicate of the said results in Forms ECSA that contradict the . results in the INEC top copies of those results.

Exhibit 2RIC is the Maradun Local Government Area result in Form EC8C containing the summary of the results of each of the wards in that local government area. It was collated at the State Collation Centre by PW19 on the instruction of the State Returning officer from the ward results in Forms EC8B in the IREV Portal. What is clear from the evidence is that when PW19 submitted exhibit P.182C to the State Returning Officer for collation as the Maradun Local Government Area result, the appellant’s agents objected to the use of the said exhibit for collation as such result, contending that it was not the correct result, that it was not made at the Local Government Collation Centre, that PW19 who had disappeared from the collation centre to the Government House reappeared later with a collated result in Form ECSC, which result did not correspond with the existing results in Forms ECSA and EC8B, that the Returning officer ordered that the correctness of the result in the Form ECSC be verified from the contents of the IREV Portal, that after opening the portal to the view of the parties to the dispute, it was confirmed by all parties that the scores in exhibit P.182c are• different from all the ward results in Forms EC8B in the IREV Portal. It is noteworthy that the results in Form ECS being a summary of the ward results in each Form EC8B must contain the same result for ward as contained in the Form EC8B for that ward. PW19 who made exhibit P.182C admitted that the results therein were different from the results in Forms ECSB in the IREV Portal. The INEC top copies of forms EC8A and EC8B were supported by the contents of the same forms in the IREV. Upon the above confirmation, PW19 collated and signed exhibit 2R1C from the Forms EC8B in the IREV.
The decision of the Court of Appeal that the IREV is not part of the election process is wrong. It is contrary to the recent decisions of this court in Oyetola V INEC(2023) 11 NWLR Pt.1894) 125 and Atiku&Anor V INEC Ors (delivered on 2-3-2023 in SC/CV/935/2023) which applied Regulations 38(1) and (ii), 48(a) and(b) and 93 of the INEC Regulations and Guidelines for the Conduct of Elections, 2022 that expressiy provide for IREV as part of the election process, particularly for • the verification of the correctness of the INEC hard copies of election results at any level of the election, when the need arises and when it can be used to collate result for any level of an election. It is surprising that inspite of the clear and unambiguous provisions of the above Regulations and our decisions on the point, the Court of Appeal could simply declare without more that the IREV is not part of the election process. This deliberate disregard of judicial precedent from the Supreme Court on a point has been described consistently in several decisions of this court as judicial impertinence. Let me add that it is an exhibition of judicial lawlessness and a violation of S.187(1) of the 1999 Constitution. If a court whose inherent traditional and 93 -Where the INEC hardcopy of collated results from the immediate lower level of collation does not exist, the Coliation Officer shall use electronically transmitted results or results from the IREV portal to continue collation. Where none of these exist, the Collation Officer shall ask for duplicate hardcopies issued by the Commission to the following bodies in the order below:
(i) The Nigeria Police Force; and Agents of Political Parties.

(ii) The refusal of the Returning Officer to use exhibit P.182C and rather choosing to ascertain its correctness from the IREV and Forms EC8A and EC8B is justified by Regulation 48(a) which provides that an election result shall only be collated if the collation officer ascertains that the votes scored by Political Parties is correct and agrees with results elecronically transmitted or transferred directly from the polling unit and Regulation 48(b) which provides that if a Returning officer determines that a result from a lower level of collation is not correct, he/she shall use the result electronically transmitted or transferred directly from that lower level to collate and announce the result.

The petitioners’ venture to prove the actual votes scored by each candidate in each polling unit of Maradun Local Government Area by relying only on the Local Government Area collated results in Form ECSC (exhibit P.182C) is a futile one, without tendering in evidence duplicate copies of the polling units result in Form ECSA, they admitted was given by the presiding officer to their agent at each polling unit in Maradun Local Government Area. Their venture remained ill-fated and failed. The polling unit result in Form ECSA remains the primary evidence of the votes scored in any polling unit. The ward result in Form ECSB is a summary of the results in each polling unit in the ward and is therefore a derivative of the results in the polling units results in Form ECSA.

The Local Government Area result (Form ECSC) contains the summary of results from the wards in the particular Local government Area. The polling unit result in Form ECSA is the primary source from which the ward result in Form EC8B is derived. The Local Government Area result in Form ECSC is a summary of the ward results in Forms EC8B. Therefore the polling unit result in Form EC8A remain the only means of confirming verifying or challenging the correctness or completeness of the secondary entries in Forms EC8B and EC8C.

Let me now consider the merits of the arguments on the decision of the Court of over ruling the Tribunal’s decision that the petitioners did not adduce relevant evidence to prove their allegations of over voting, non-accreditation ard non-holding of elections in several polling units in named Local Government Areas across the State.
To prove non holding and cancellation of elections, the petitioners called PW1, PW2, PW3, PW4, PW5, PW6, PW7, PW8, PW9, PW9, PW10, PW11, PW12, PW13, PW14, PW15, PW16, PW17 and PW18, their ward and Local Government Area Collation agents who admitted under cross examination that they were not present in any of the polling units where the alleged incidents occurred and the their testimonies were based on information they received from their party agents at the said polling units.

The Tribunal correctly described their testimonies as hearsay and inadmissible evidence.
Forms EC40G, which Regulation 43 of the INEC Regulations and Guidelines (supra) require to be filled by ward collation officer stating that no elections held in a particular polling unit, were tendered by the petitioners through PW17, their Supervisory Collation Agent as exhibits P202G -P251G for about 49 polling units to prove non holding and cancellation of elections in the said polling units. None of their party agents in the said polling units or a person who was present thereat during the poll was
called as a witness to testify that election did not hold or was cancelled in the polling unit where he or she was. In any case Form EC40G alone cannot be relied on to prove non holding or cancellation of election in a polling unit. It must be accompanied by the Presiding Officer’s report on non-holding or cancellation of election on the basis of which it was made by the ward collation officer that was not present at the polling unit where election was cancelled or not held. Form EC40G has no foundation without the report of the Presiding officer who was present in the polling unit.

So the necessary evidence to prove non-holding and cancellation of election is the report of the presiding officer and Form EC40G and the testimony of persons or party agents present during election in the polling units. See Regulation 43 of the Regulations& Guidelines which provide that – “For a polling unit where election is not held or is cancelled, or poll is declared null and void in accordance with these Regulations and Guidelines, the Presiding Officer shall report same in writing to the RA/Ward Collation Officer explaining the nature of the problem and the Collation Officer shall fill Form EC40G as applicable.”
As it is, the petitioners who produced only Forms EC40G to prove non holding or cancellation of election did not adduce sufficient evidence to prove same.

The polling unit results in Form EC8A and the BVAS are the necessary evidence to prove over-voting, See Regulations 48(a) and 50(v) of the Regulations & Guidelines for the Conduct of Elections 2022. Without tendering the duplicates of the Form EC8A for each polling unit, the petitioners failed to prove the over voting alleged. There was nothing to suggest that the INEC copies of the Form EC8A when compared with the BVAS showed over voting.

The relevant and necessary evidence to prove non accreditation is BVAS, voters register and the testimony of a person registered as a voter in the relevant polling unit or persons present in the polling unit during the polling process or a party agent in the polling unit. See S.47 Electoral Act and Regulations 19 of the Regulations. No registered voter testified that he was not accredited to vote. Nothing in the voters
registers or BVAS showed there was non-accreditation of voters in the disputed polling units. The petitioners did not elicit oral evidence of a person who witnessed the poll or its party agent at the said polling units.

Without tendering in evidence the Forms ECSA that was altered, the petitioners failed to prove their allegation that some polling unit results were altered. See Doma V INEC( 2012) 13
NWLR (Pt. 1317) 297.

The established case law is that only a party agent in a polling unit during election in that unit or a person present in that unit during poll in that unit is a competent witness of what happened during poll in that unit. Therefore all the witnesses of the petitioners who were ward or Local Government collation agents were not competent witnesses of the elections and results in any of the disputed polling units. Having admitted that their testimonies were based on information from their polling unit agents, it was wrong for the Court of Appeal to hold that their evidence of the election in the disputed polling units is not
hearsay and inadmissible evidence. The Tribunal correctly held that such testimony is hearsay and inadmissible evidence.

The decision of the Court of Appeal that exhibit P182C show non-compliance with the Electoral Act is perverse and unreasonable because PW19 who recorded the results in the form testified that the 98,506 votes recorded therein as scored by the petitioners and the 618 votes recorded therein as scored by the
appellant are not the actual votes and that it is not readable as it is not legible and the Court of Appeal that had concurred with the finding of the Tribunal that it is not legible did not overrule or set has no probative value . aside the tribunal’s decision that the document is not credible and The Court of Appeal did not correctly apply S.137 of the Electoral Act 2022 when it held that a party is not bound to call oral evidence where the original or certified true copies of documents tendered manifestly disclose the irregularities alleged.

The exact text of S. 137 provides that- “It shall not be necessary for a party who alleges non-compliance with the provisions of this Act for the conduct of elections to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged”
It is glaring from the clear provisions of S.137 that it cannot apply to allegation of any irregularity. It applies only to allegations of non-compliance with provisions of the Electoral Act to obviate the need to call oral evidence to prove the allegation if the
original or certified true copy of the document admitted in evidence on its face shows the alleged non-compliance. So where the admitted document relied on to prove the alleged noncompliance with a provision of the Electoral Act does not on its face manifest it, then oral evidence must be called to prove it.
Forms EC8B,EC8C and EC40G and other documents tendered by the petitioners to prove their allegations of over voting, non-

acreditation, non-holding and cancellation of elections do not. manifestly disclose any of the non-compliance alleged by the petitioners. There was therefore need for the petitioners to call oral evidence concerning the documents tendered through PW1 to PW17 beyond merely tendering and identifying them. The testimonies of PW1 to PW17 were not related to the contents of the documents. The Tribunal correctly decided they were dumped and correctly refused to accord them probative value.
It is glaring that the petitioners failed woefully to produce evidence that established over voting, non-holding or cancellation of election and non-accreditation of voters.
The Court of Appeal decided that the Tribunal did not properly evaluate the evidence and that therefore would exercise its general powers under S.15 of the Court of Appeal Act 2004 to re-evaluate the evidence adduced by the parties. But it did not proceed to do so. Rather it picked on exhibit 21C and tersely held that it lacked probative value because the alterations therein were not signed by party agents. Beyond this terse holding, it did not say anything concerning any other piece of evidence in the case. It said nothing about the evidence of PW19 that the votes recorded in Exhibit P.182C made by him are not the actual
votes scored and that the actual votes as recorded by him in exhibit 2RIC. The Court of Appeal did not consider that the votes recorded in exhibits P163-P175, the ward results contradict the votes recorded in exhibit P182C and corroborate the votes recorded in exhibit R1C. It also did not consider the evidence that the Returning Officer verified the correctness of Exhibit P182C by opening the IREV to the view of all parties, the evidence that the Forms ECA and EC8B in the IREV did not confirm the contents. of exhibit P.182C, the evidence that the Returning officer instructed PW19 to collate the correct result in another Form ECSC and that the correct result was collated and signed by PW19 in exhibit 2R1C from the Forms EC8B in the IREV, the evidence that showed that election held, that there was accreditation and no over voting. It did not re-evaluate the evidence beyond saying that it has critically looked at the evidence adduced by both parties. The Court of Appeal did not re-evaluate the evidence as it set out to do. Without re- evaluating the evidence, it cannot validly fault the decisions of the tribunal on the evidence. In any case, the judgment of the tribunal showed that it properly evaluated the evidence. Its
conclusion that the trial Tribunal was wrong to have held that the petitioners did not prove their case is baseless and wrong.

The tribunal correctly followed our restatement in Oyetola v INE on the evidence required to prove over voting, non-accreditation, non-holding and cancellation of elections. It is obvious from the Tribunal judgment that it considered if the petitioners satisfied the evidential requirements prescribed by this Court in Oyetola V INEC for the proof of over voting, non-accreditation, non- holding and cancellation of elections.

All the issues are resolved in favour of the appellants.

On the whole this appeal succeeds as it has merit. It is allowed. The Judgment of the Court of Appeal delivered on 16- 11-2023 in Appeal NO: CA/S/EP/GOV/2M/21/2023 is hereby set aside. The order that the election is inconclusive, the order setting aside the appellant’s election are hereby set aside. The Judgment of the Zamfara State Election Tribunal delivered on 18- 9-2023 in Petition No. EPT/ZM/GOV/02/2023 dismissing the petition of the petitioners (1st and 2d respondents herein) is hereby restored. No order as to costs.

The decision in this appeal effectively binds and determines appeal in SC/CV/1156/2023, appeal no SC/CV/1167/2023 and appeal SC/CV/1168/2023.
EMMANUEL AKOMAYE AGIM
JUSTICE, SUPREME COURT

Appearances:
D. D. Dodo SAN, Pius Akubo SAN, Chief Solomon Akuma SAN, with Samson EigegeEsq and Reuben KinyaEsq for Appellant.
Dr. OnyechiIkpeazu SAN, AkinloluKehinde SAN, Usman O. Sule
SAN, Prof T.B Maiyaki SAN with Dr.ObinnaOnyaEsq for 1st and 2nd Respondents
Ishaka M. Dikko SAN, Yahaya D. Dangana SAN with Dr Victoria Nyemigbo  Esq, Wilson E. Tingir Esq and Basil T. Hemba Esq for 3°d Respondent
A.K. Ajibade SAN, O.M. Atoyebi SAN with M.S Afolagbe Esq, Douglas Onclor Esq and T.D. Mogbor for 4th Respondent.