JUDGMENT (Delivered by MOHAMMED LAWAL GARBA, JSC)-SC/CV/1130/2023

Section 2 thereof and authority of Anagbado v. Faruk (2019) 1
NWLR (pt. 1653(292 (SC) and Benjamin v. Kalio (2018) 15 NWLR (pt.
1614) 38 (SC), maintaining that the court below was wrong in relying on Oke
v. Mimiko (supra) and the decision in Peter G. Obi v. INEC as decided by it and this court since it did not decide or rule on the issuance of subpoena on official witnesses, but this Court merely held that that appeal shall abide the decision in Atiku Abubakar v. INEC. This Court is then invited to over-rule the decision in Obi v. INEC (supra), in the alternative, pursuant to Order 6, Rule 5 (4) of the Supreme Court, Rules as well as Ardo v. Nyako (2014) to NWLR (pt. 1416) 591 at 627 (SC) and Veepee Ind. Ltd. v. Cocoa Ind. Ltd.  (2008) 13 NWLR (pt. 1105) 486 at 5223 (SC), for the following reasons:

“(a) When the decision was reached per incuriam, vide: Uwemedimo vs. Mobil Producing (Nig.) UnItd. (2022) 2 NWLR (pt. 1813) 53 at 80-87 SC. In this case, the Supreme Court had apparently forgotten (here had acted per incuriam) its previous decisions which permitted evidence of witnesses subpoened even after the 21 days stipulated in the applicable law, which include Sylva vs. INEC, supra; Uzodinma vs. Thedicha, supra, Abubakar vs. INEC, supra; APGA vs. Al Makuta, supra. It also apparently forgot that it had earlier held in Sylva vs. INEC, supra that a subpoena is a pg. 8(b),(C),(d) the command that must be obeyed by the person subpoened. incuriam” means for forget, vide: Tanko vs. State (2009) 4 NWLR (pt. 1131) 430 at 464 SC.
When such a decision “has led to results which are unjust or undesirable;” or” is occasioning a miscarriage of justice or perpetuating injustice,” vide: Oli vs. INEC (2023) 14 NWLR (pt.1903) 65 at 88-89 SC and Ndifor vs. C.O.P. (2022) 18 NWLR (pt. 1862) 421 at 449 SC. In this case, the Appellants, at the time of filing their Petition, were aware that the Supreme Court had previously permitted subpoenas to be filed and utilized, even after 21 days of the declaration of election results. It will, therefore, be “unjust,” leading to a “miscarriage of justice,” if, all of a sudden, they are sent away from the seat of justice by the same Supreme Court.  When the previous decision was reached in such a wrong principle of law that persisting to follow it “would inflict hardship and injustice upon generations in the future…,

“vide: Rossek vs.1. C.B. (1993) 8 NWLR (pt. 312) 382 at 4461 SC; or when there is a need to “curb perpetration of injustice,” vide: B.M. Ltd. vs.
Woermann-Line (2009) 13 NWLR (pt. 1157) 149 at 186 SC; or when the previous decision was a vehicle of injustice,” vide:

Williams vs. Daily Times (1990) 1 NWLR (pt. 124) 1 at 37 SC. The injustice here is the fact that the Appellants had taken into account several decisions of the Supreme Court which allowed the evidence of subpoened witnesses to be utilised and duly assessed even after the mandatory 21 days; hence to shock them with a rejection of that accepted procedure will lead to grave injustice against them.
When, there is the need for the Supreme Court to terminate its continuous perpetuation in error, vide: INEC vs. M.C.D. (2023) 3NWLR (pt. 1870) 97 at 145 B-C SC and Tanko vs. State (2009) LPELR-3136 (SC). The error here is the failure to follow previous decisions on the subject matter.

When “a broad issue of public policy” is involved, vide: Okulate vs. Awonsaya (2000) 2 NWLR (pt. 646) 530 at 543 SC.

In this case, the broad polity involved is the need to prevent civil servants working in places like NYSC, WAEC, INEC, etc, from being immersed in politics – by allowing politicians and their political parties to invite them just with the beckoning of a hand, without more, to volunteer statements for them in Election Petitions and SC/CV/1130/2023 for those invited to ‘comply.’ That would be the end of the Nigerian civil service! Another public policy issue here is that, if such civil servants refuse such invitation, cases involving high crimes like forgery, outlawed by provisions like section 182(1)() of the Constitution, will be thrown out; and soon.

The Nigerian Constitution will, then, be made a laughing stock! Your lordships righily described this Court as a “policy court” in the case of P.D.P. vs. INEC (2023) 13 NWLR (pf. 1900) 89 at 136 SC; hence we respectfully but firmly urge that your lordships uphold the public policy of overruling itself on this issue, as urged.

In further argument, it is said that the provisions of Section 285 (5) of the Constitution and paragraph 4(5) of the 1″ schedule to the Electoral Act, 2022 do not apply to subpoened witnesses as their application would create absurdity and uncertainty in the administration of justice and reliance was placed on, inter alia, FRN v. Nganjiwa (2022) 17 NWLR (1860) 407 at 458 – 459 (SC), Saraki v. FRN (2016) 3 NWLR (pt. 1500) 531 at 632 (SC) and Ugba v. Suswan (2014) LPELR – 22882 (SC).

The court below is also said to have erred in law in affirming the failure by the trial tribunal to consider the evidence of the witnesses which was expunged since its time to exercise the jurisdiction to do so was limited and
its decision not final, thereby denying the appellate court an opportunity to consider all live issues in an appeal against the decision. Koko v. Koko (2023) 13 N WLR (Pt. 1901) 249 at 289 (SC) is cited and the court is urged to, under section 22 of the Supreme Court Act, assess and evaluate the evidence of the said witnesses since the court below had the power, but failed to do so on the authority of Odedo v. PDP and Ors. (2015) LPELR – 24738 (SC).
The court is prayed to resolve the issue in favor of the Appellants.

1″ Respondent’s Submissions:-

After reference to the decisions by the two (2) lower courts to expunge evidence of the witnesses in question, it is contended that both courts are right in law by dint of the combined provisions in section 285 (5) of the Constitution and paragraphs 4 (5) and 14(2) of the 1″ schedule to the Electoral Act, as well as the decisions by this court in Obi v. INEC (supra) and Kibiya v. Fammar (2019) LPELR – 49626 (SC) which decisions did infract the Evidence Act. The evidence of each of the witnesses in question was considered and it is submitted that all of them were available and could have been summoned by the Appellants before filing the petition or before the expiration of the time to do so and since the Appellants failed to utilize the opportunity, they should not be allowed to use a subpoena to circumvent the timelines provided for in paragraph 4(5) of the Is Schedule to the SC/CV/1130/2023 Electoral Act and the decision in Omisore v. Aregbesola (2015) LPELR – 24803 (SC).

On the invitation by the Appellants for the court to over-rule its decision’ in Obi v. INEC, citing Odi v. Osafile (1985) LPELR – 2212 (SC), said to be locus classicus on the issue, it is submitted that the conditions for the departure have not been shown to exist or satisfied for the court to depart from its previous decision.

That the decision was not given per in curium as no arguments were forgotten by the court in the decision in relation to the earlier cases of Sylva v. INEC (supra), Abubakar v. INEC (supra), and APGA v. Ap-Mekura (supra), but the arguments in Obi v. INEC were rejected by the court in affirming the decision of the court below in that case. The Learned SAN for the 1″ Respondent said the provisions in paragraphs 4(5) & 14 (2) of the 1« Schedule to the Electoral Act and Section 285(5) of the Constitution are very clear, plain and unambiguous and to be given their ordinary and literal construction no matter the result, on the authority of PDP v. INEC (1999) LPELR – 24856 (SC) and Nwobuke v. FRN (2021) LPELR – 56670 (SC). 

The invitation for the court to assess and evaluate the evidence of the witnesses in question under Section 22 of the Supreme Court Act, on the authority of Ebebi v. Esemokumor (2022) 1 NWLR (pt. 1812) 462 at 485 – 488, Shetima v. Goni (2011) 18 NWLR (pt. 1279) 413, ANPP v. Goni (2012) 7 NWLR (pt. 1298) 147, Ezenwankwo v. APGA (2022) LPELR – 57884 (SC), Toyin v. PDP (2019) LPELR – 47533 (SC) and Dantiye v. APC (2021) 18 NWLR (pt. 1808) 381 (SC), it is argued, cannot be accepted since the court lacks the jurisdiction lost by the two (2) courts below to assess and evaluate the evidence with the expiration of the timelines for the trial and
appeal before them; respectively.

Lastly, it is the further contention of the Is Respondent that the evidence of PW 26, “star witness”, for the Appellants was both direct hearsay and contradictory which the trial tribunal was right to have discountenanced, on the authority of Kakih v. PDP (2014) 15 NWLR (pt. 1430) (no page provided, but it is page 374).

The court is urged to uphold the decision of the lower courts and in favor of the 1″ Respondent.
2″‘ Respondent’s Submissions:

The issue was argued under issue 2 of the 2″‘ Respondent where the two (2) lower courts are said to be right to have expunged the evidence of PW1, PW2 and PW3 called by the Appellants in proof of the allegation of forgery of the NYSC certificate by the 2″‘ Respondent on the ground that their statements on oath were filed outside the time permitted for the filing of the petition contrary to the provisions of paragraphs 4(5) and 14(2) of the 1″ Schedule to
•the Electoral Act and the binding authorities in the cases of Oke v. Mimiko (supra) and Obi v. INEC (supra). It is the casc of the 2″d Respondent that the witnesses were available to the Appellants and that the issue of the validity of
witness depositions filed outside the twenty one (21) days allowed for the filing of a petition did not arise in the cases of Dickson v. Sylva (supra), Uzodinma v. Ihedioha (supra), Abubakar v. INEC (supra) and APGA v. Al-Makura (supra) relied on by the Appellants. Learned Silk for the 2nd Respondent submits that the law is trite that with respect to subpoena, what
matters is whether the witnesses are compellable and not whether they are
official or unofficial witnesses, relying on Adegbite v. Amosu (2016) 15
NWLR (pt. 1536) 405 at 421 – 422 and then argues that the affirmation of the decision of the court below in Obi v. INEC that such depositions filed outside the prescribed time are inadmissible is binding on all authorities and persons in Nigeria by virtue of Section 287 of the Constitution as the most recent
decision of this court on the issue. Osakue v. F.C.E., Asaba (2010) 10
NWLR (pt. 1201) 1 at 34, and CBN v. Okojie (2015) 14 NWLR (pt. 1479)
231 at 263, are cited in support of the submission.
On the invitation to the court by the Appellants to over-rule the decision in Obi v. INEC (supra), it is submitted that the Appellants have failed to demonstrate that the case falls into the situations stated and restated
・
In decisions such as Ihim v. Maduagwu (2021) 5 NWLR (pt. 1770) 584 at 619, Idoniboye-Obi v. NNPC (2003) 2 NWLR (pt. 805) and Oli v. INEC (2023)
14 NWLR (PT. 1903) 65 at 88 – 89 to warrant acceptance of the Appellants’ invitation to over-rule or depart from its decision in Obi v. INEC.
Similar submissions as those made by the 1″ Respondent on the power of this Court to assess and evaluate the evidence of the witnesses expunged by, the
trial tribunal pursuant to the provisions of Section 22 of the Supreme Court
Acts are also made and the court is urged to uphold same.

3″‘ Respondent’s Submissions: 
The issue is argued under 3 Respondent’s issue 2 and citing Marwa v.
Nyako (2012) LPELR – 7837 (SC) 36, Abubakar v. Nasamu (2012) LPELR
– 7826 (SC) among other cases, Section 285 (5) of the Constitution and paragraph 4(5) of the 1″ Schedule to the Electoral Act, it is submitted that the
court below is right to have affirmed the decision by the trial tribunal to
expunge the evidence of the witnesses whose statements on oath were filed
outside the timeline for the filing of an election petition. It is then contended that the distinction sought to be drawn by the Appellants between official and subpoened witnesses is an invention and an unworthy aberration that has no place in Nigerian Jurisprudence and reliance was placed on Ibch v. State
(1997) LPELR – 1389 (SC). Similar arguments are made on the availability of the witnesses to the Appellants before the petition was filed as made by the 1″ and 2″d Respondents and it is maintained that by the authority of Oke v. Mimiko (supra) and Obi v. INEC (supra) the two (2) lower courts are right to have expunged the evidence of the witnesses in question, leaving nothing to assess or evaluate.
The court is urged to resolve the issue in favor of the 3″ Respondent.

In the Appellants’ Reply brief to the 3′ Respondent Brief, it is submitted that the facts in the case of Marwa v. Nyako (supra) and Abubakar v. Nasamu (supra) are different from the Appellants’ case as they have nothing to do with subpoenas.

It is maintained by the Appellants that since more of the Respondents applied to set aside the subpoenas issued by the trial tribunal, they cannot argue against the same now as the case of Saraki v. FRN (supra) and INEC v. Musa (supra) have no application because they did involve issuing of subpoenas in
election matters. Other arguments in the Reply brief are further arguments of the appeal.

Resolution:

My Lords, as a foundation, I wish to restate the now elementary position of the law that election matters are in a class of their own and different from
ordinary civil matters in the practice and procedure for adjudication by the
courts/tribunals.
In the known parlance, election matters are called “sui generis”, primarily because specific and special provisions are enacted by the legislature to
regulate and govern the procedure and practice to be used in the determination and settlement of disputes arising therefrom by the courts/tribunals that are either specifically established or vested with the requisite jurisdiction to adjudicate over the disputes, under the constitution.

The peculiar and overriding feature in the constitutional and other statutory provisions on collection matters is the timeline mandatorily prescribed, stipulated, and imposed for all procedural steps to be taken by all the parties in election disputes as well as the courts/tribunals in the determination of such disputes; from the beginning to the end.

Due to the mandatory nature of the constitutional and statutory provisions on the procedural steps to be followed and taken in election matters, the law has evolved that the slightest non-compliance with a procedural step in an election matter, which otherwise could either be cured or waived in ordinary
civil proceedings, could result in fatal consequences. See Buhari v. Obasanjo (2005) 17 NWLR (pt. 850) 423, (2003) 14 NWLR (pt. 841) 446, ANPP v.Resident Electoral Commissioner, Akwa Ibom State (2008) 8 NWLR (pt.
1090) 453, Magaji v. Balat (2004) 8 NWLR (pt. 876) 449, Nwankwo v. Yar’ Adua (2010) 12 NWLR (pt. 1209) 518, Okechukwu v. Obiano (2020) 8 NWLR (pt. 1726) 248, Lokpobiri v. APC (2021) 3 NWLR (pt. 1764) 538. 

Under this issue, the bone of contention between the Appellants on one hand and the Respondents. on the other hand, is whether the evidence of PW1, PW2, PW3, PW26, and PW30 called by the Appellants; as contained in their statements on oath which were admittedly, filed after the expiration of the time prescribed for the presentation of the Appellants’ petition before the trial tribunal, was valid and admissible in law for it to be considered, assessed and evaluated in the determination of the petition by the trial tribunal. The tribunal dealt with and resolved the issue in its judgment delivered on 18 September 2023, particularly on pages 2422 – 2425 of Vol. III of the Record of Appeal as follows:-

“The main contention of parties in this petition is as to whether or not witnesses on subpoena are mandated to upload their written statements on oath along with the petition. In other words, whether the failure to obtain and serve the written deposition of subpoened witnesses along with the petition amounts to a failure to comply with paragraph 4(5) (b) of the I” Schedule to the Electoral Act, 2022.

It was submitted that compliance with paragraph 4(5) (b) is mandatory and that non-compliance with the same renders such witness statements fundamentally incompetent and liable to be set aside. Cases of PDP v Okogbuo & Ors. (2019) LPELR-48989 (CA) pg. 11-28 paras D-B, Ojukwu v Yar’Adua (2009) 12 NWLR (pt. 1154) 50 at 142 paras R-G and Yaki v. Bagudu (2015) 18 NWLR (pt. 1491) 288 at 348 are cited and relied upon.

It was argued on the other hand that assuming the Federal High Court Rules apply in this case, the witnesses have already filed their witness statement on oat in compliance with the rules upon service on them of subpoena to appear before the Tribunal.

Reliance was placed on the case of Warisenibo Maclean Bethel Oranta v. INEC &
2 Ors., Petition No. EPT/RV/IR/02/23 delivered on 22/06/2023.
The provisions of paragraph 4(5) of the 1″ schedule to the Electoral Act, 2022 is as follows:-
(5) the election petition shall be accompanied by – (a)
a list of the witnesses that the petitioner intends to call in proof of the petition;
• (b)
(c)
Written statements on oath of the witnesses; and copies of list of all documents to be relied on at the hearing of the petition.”

The law is settled that the above provision makes it mandatory to file witness depositions along with the petition before such witness will be competent to testify before the Tribunal or court in election petitions. See OKE & ANOR. V. MIMIKO & ORS. (2013) LPELR – 20645 (SC) at pg. 43-45 paras D-D; OGBA V. VINCLENT (2015) LPELR – 40719 (CA) at pg 42-49 paras C; ARARUME & ANOR V. INEC & ANOR. (2019) LPELR – 48397 (CA) at pg. 28-36. In peter Obi & Anor. v. INEC & ORS (supra) the court per Tsammani JSC said:
“The firm position of the Supreme Court as stated in OKE
v. МІМІКО (supra) and followed by this court in Ogba v.
Vincent (supra) is that by the combined provisions of section 285(5) of the 1999 Constitution, section 132 (7) of the
• Electoral Act, 2022 and paragraph 4(5) and (6) 14(2) of the 1″ schedule to the Electoral Act, every written statement on oath of the witnesses which a party intends to call must be filed along with the petition within the time limited by section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 132(7) of the Electoral Act, 2022. Once the time limit for filing a petition has elapsed, the contents of the petition cannot be added to, or amended in any manner or under any guise.

Any written statement on oath of a witness filed outside that 21-day limitation will account for a surreptitious amendment of the petition and a breach of paragraph 14 of the 1″ Schedule to the Electoral Act, 2022. This irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoened witnesses. Since then, this has been the consistent position of the law followed by this court.”

In the instant petition, PWI, PW2, PW3, and PW30 were subpoened at the instance of the Petitioner while DW2 and DW3 were Subpoened at the instance of the 2″ and 3 Respondents respectively.
Hence all the witnesses under subpoena were available to the parties at the time of filing the petition and replies thereto, it follows that the witness statements on oath filed after the time limited for doing so has elapsed are incompetent. Their testimonies as embodied in their respective witness statement and/or oral evidence, documents admitted in evidence as Exhibits are hereby struck out.”

This decision of the trial tribunal was affirmed by the court below in the decision appealed against in the following terms, on pages 3052 – 3054 of vol. Ill of the Record of Appeal.

“The question is why was the evidence of these witnesses expunged? The answer is that they were expunged for noncompliance with the law.

Section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) read:-
“An election petition shall be filed within 21 days after the date of the declaration of the result of the elections”
Paragraph 4(5) of the First Schedule to the Electoral Act, 2022, an election petition, which shall be filed within twenty-one (21) days after the day of declaration of result, … “shall be accompanied by
(a) list of witnesses that the petitioner intends to call in proof of the petition (b) written statement on oath of the witnesses.”
Learned senior counsel for the Appellants must appreciate the facts that election matters by their nature are sui generis and time is of the essence. Therefore strict compliance with the provisions of the Electoral Act is what will aid the Appellants. This, the Appellants have failed to do in this case. However, the issue has been put to rest by the decision of the Supreme Court in Oke Vs.Mimiko (2013) LPELR – 20645 (SC) held thus:-

“the firm position of the Supreme Court and followed by this court in Ogba vs. Vincent (2015) LPELR – 40719 (CA) is that by the combined provisions of Section 285(5) of the 1999 Constitution, Section 132(7) of the Electoral Act, 2022 and paragraph 4(5) and(6) AND 14(2) of the I” schedule to the Electoral Act, every written statement on oath of the witness which a party intends to call must be filed along with the petition within the time limited by subsection (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 132 (7) of the Electoral Act, 2022.

Once the time limit for filing of a petition was provided it cannot be added to or amended in any manner or under any guise. Any written statement on surreptitious amendment of the petition and breach of paragraph 14 of the First Schedule to the Electoral Act, 2022. This is irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoened witnesses. Since then this has been consistent of the law followed by this Court.

See the recent decision of this court in Peter G. Obi & Onor vs. INEC & Ors. CA/PEPC/03/2023 which was affirmed by the Supreme Court and by the doctrine of stare decisis, we are all bound by the decision of the Supreme Court being the highest court of the land.
The tribunal was therefore right in expunging the statements of PWI, PW2, PW3 and PW30 and I so hold in line with the above decisions of this Court and the Supreme Court and the Provisions of the Constitution and the Electoral Act I, it is trite that expunged or rejected evidence has no evidential value. See Agbola vs. State
(2011) LPELR -8948 (CA) and evidence PW26, it is elementary, hearsay evidence is inadmissible in law and the Tribunal was right in expunging same.

It is a misconception of law for the Appellant’sthe  counsel to argue that having expunged the statements, the trial Tribunal should have proceeded to assess same. This is because, the statements that were expunged for their inadmissible, there is nothing left for the tribunal to assess on the said statements.”

As can be seen, it is beyond reasonable argument that the law on the validity, competence, and admissibility of evidence of witnesses based on their written statements on oath in election petition proceedings, which were filed outside or after the expiration of the time stipulated and limited for the presentation of an election petition, has been firmly established by the pronouncements of this court in the cases cited and relied on by the two (2) lower courts in the above decisions. Conflicting decisions by the court below, earlier or later, on the issue are, by law, of no legal moment as they cannot stand in the way of the decisions of this court since that court is constitutionally bound by the decisions of this court, as the final judicial authority in the country by dint of the provisions in Sections 235 and 287(1) of the Constitution. Sce Dingyadi v. INEC (No.1) (2010) 180 (pt. 1224) 1 (SC), Ukachukwu v. NYSC (2006) All FWLR (PT. 308) 1272, APGA v. Al-Makura (2016) 5 NWLR (pt. 1505) 347 (SC), CIL Risk & Asset Management Ltd. v. Ekiti State Government (2020) 12 NWL (pt. 1738) 203 (SC), Stanbic IBTC Bank, Plo v. L.G.C. Ltd. (2020) 2 NWLR (pt. 1707) 1 (SC), Degi-Eremienyo v. PDP (2021) 16
NWLR (pt. 1800) 387 (SC), Sani v. K. S. H. A. (2021) 6 NWLR 1773) 422 (SC).

The decision by the court below in the Obi v. INEC case, which was affirmed by this court in the judgment delivered on 26″ October 2023 in the Obi v. INEC Appeal No. SC/CV/937/23, on the issue of the validity, competence, and admissibility of the evidence of subpoened witnesses in election petition proceedings which were filed outside and after the expiration of the time
prescribed under the Electoral Act for the presentation of an election petition, has put the position of the law beyond further reasonable and viable legal arguments
.
The law is that where this court delivers a decision that is at variance and
different from a previous or earlier decision/s on an. issue, the effect is that the subsequent decision is deemed to have over-ruled or departed from the previous or earlier decision/s as stated by the court in Osude v. Azodo (2017), 15 NWLR (pt. 1588) 295 at 322 paragraphs. A – D.

Although the trial tribunal had referred to the decision of the court below on the issue in the extract of its judgment set out earlier, it is expedient to, again, call in the specific decision affirmed by this court in the Obi v. INEC judgment delivered on the 26″ October, 2023. This was the decision:-
“The firm position of the Supreme Court as stated in OKE v.
MIMIKO (supra) and followed by this court in Ogba v. Vincent (supra) is that by the combined provisions of section 285(5) of the
1999 Constitution, section 132 (7) of the Electoral Act, 2022 and paragraph 4(5) and (6) 14(2) of the I” schedule to the Electoral Act, every written statement on oath of the witnesses which a party intends to call must be filed along with the petition within the time limited by section 285(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and section 132(7) of the Electoral Act, 2022. Once the time limited for filing of a petition has elapsed, the contents of the petition cannot be added to, or amended in any manner or under any guise.
Any written statement on oath of a witness filed outside that 21 days limitation will account to a surreptitious amendment of the petition and a breach of paragraph 14 of the l” Schedule to the Electoral Act,
2022. This is irrespective of whether the witnesses to be called are ordinary or expert witnesses and whether they are willing or subpoened witnesses. Since then, this has been the consistent position of the law followed by this court. “(Underline supplied)

One of the issues raised by the Appellants, considered and determined by the court in the Atiku Abubakar v. INEC judgment in Appeal NO. SC/CV/935/23 delivered on the same 26″ October 2023 by the court and which the Obi v. INEC appeal was ordered to abide by, was Issue Three (3) thus:-

“(3) Whether the lower court was not in error to have expunged the witnesses’ Statement on Oath of Appellants’ subpoened witnesses, namely, PWI2, PW13, PW14, PW15, PW16, PW17, PW18, PW21,
PW23, PW24, PW25, PW26, and PW27, and the exhibits tendered by them on the ground that the witnesses’ statement on oath was not filed along with the petition and that Order 3, Rule 2 and 3 of the Federal High Court (Civil Procedure) Rules, 2019 is not applicable in election matters.”
This issue was specifically determined on the merit by the court when it held, per Hon. Justice Okoro, JSC in the Lead Judgment, inter alia, that:-

“My noble Lords, a combined reading of section 285(5) of the Constitution of the Federal Republic of Nigeria (as amended) and paragraph 4 (5) of First Schedule to the Electoral Act, 2022 shows that the time limit for the filing of written statement on oath of witnesses in election petition proceedings is 21 days from the date of declaration of results. As was pointed out by the counsel for the Respondents, due to the sui generis nature of election proceedings, an amendment to the petition or calling of additional witnesses will not be entertained after the statutory time limit for the filing of the petition has expired.

Thus, a petitioner cannot present his case in bits
otherwise the Respondent’s rights to fair hearing will be breached.
This was the position of this court in Oke Vs. Momiko (No) (2014) 1 NWLR (pt. 1388) 225.
,
In his contributory judgment, in the above case, Ogunbiyi, JSC (Rid) made the following decision.
“By paragraph 4(1) and (5) of the first schedule to the Electoral Act, a composite analysis of contents of an election petition has been spelled out and also a list of materials which must be accompanied. The use of the word shall in the subsections is very instructive, mandatorya  and conclusive. In other words, the provisions do not allow for additions and hence the procedure adopted by the appellants in seeking for extension of time is nothing other than surreptitious attempt to amend the petition. Expressly, there is no provision in the Legislation which provides for extension of time. What is more, vide paragraph 14(2) of the 1” Schedule to the Electoral Act, the Appellants by section 134(1) of the Act had been totally fore-close from any amendment with was in fact the hidden agenda promotion the application……

Further still and on a critical perusal of the application, relief 2 secks “leave to call additional witnesses, to wit
1.E.O”. It is pertinent to restate that at the close of pleadings, parties had submitted the list of witnesses who were to testify together with their deposition. The idea, purpose and intention of the application is suggestive of nothing more but a clear confirmation seeking an order for an amendment as rightly and ingeniously thought out by the trial Tribunal and also affirmed by the lower court. This will certainly violate the provisions of section 285(5) of the constitution as section 134 of the Electoral Act”. It has to be emphasized that the use of the word “shall” in paragraphs 4(1) and (5) of the !” Schedule to Electoral Act makes it mandatory and conclusive.
‘ The question may be asked; can a court extend time circumscribed by the constitution for a party to do a thing, he could not do before the expiration of the time? The obvious answer is no. Such provisions like section 285(5) of the constitution are mandatory and any exercise of discretion by the court is without jurisdiction and therefore a nullity.

In APC Vs. Marafa (2020) 6 NWLR (pt. 1721) 383 at 423, the court held that the application for an extension of time to call additional witnesses and to file additional witness statements after the prescribed period for presenting election petitions are not permitted because election matters are time bound and because of being sui generis, the procedure in handling them are stricter than ordinary civil matters. See also Ararume Vs. INEC (2019).LPELR-48397 at 33.

The learned counsel for the Appellants had argued that the law does not compel the impossibility and that subpoened witnesses should be allowed to testify but as was argued by the learned senior counsel for the I” Respondent, A. B. Mahmoud, SAN, subpoenas are not a tool with which to circumvent the provisions of the law and the effect and purpose of section 285(5) of the constitution and paragraph 4(5) of the first schedule to the Electoral Act 2022. It is on this note that I hold that the decision of the court below to strike out the offending witness depositions cannot be faulted. I resolve this issue against the Appellants. “

The decision of this court on the issue is definite, precise, unequivocal, and clear for easy understanding and comprehension even to a non-legal mind. It was because no practical and useful purpose was to be served by the
repetition of the views and conclusion of the court on the same issue raised by Appellants in the Obi v. INEC appeal against the same judgment by the court below, that the court ordered that the judgment in Obi v. INEC shall abide by the judgment in Atiku Abubakar v. INEC on all the identical issues canvassed by the Appellants in both appeals. In my contribution in support of the Lead Judgment, I had stated:-

“This is a sister Appeal to the Appeal No. SC/CV/935/2023:
Abubakar Atiku & Anor. v. I.N.E.C. & 2 Ors, both of which are from the decisions of the Court of Appeal; sitting as the Presidential Election Petition trial court, dismissing the separate Presidential election petitions filed by the Appellants on ground of failure to prove same as required by the law.
The seven (7) issues raised and canvassed by each of the two (2) Appellants in their respective briefs of argument are not only identical but materially, substantially and essentially the same.

All the issues argued in this appeal have been comprehensively, totally, effectively, and conclusively considered and resolved in the judgment in Appeal No. SC/CV/935/2023, such that the repetition of the reasonings and conclusions of the court on the said issues in this appeal will serve no practical and useful purpose. It was on that ground and for that reason that at the hearing of the two (2) appeals, the court stated that the decision in the Appeal No. SC/CV/935/2023 shall bind and this appeal shall abide by the said decision.

I have read the Lead Judgment written by my Learned Brother, Hon. Justice J. I. Okoro, ISC, in this appeal and agree, entirely, that the issues 1, 2, 3, 5, 6 and 7 in this appeal, like in the sister Appeal, are devoid of merit and resolved against the Appellant here, for all the reasons set out in that appeal.

On the issue four (4) of the appeal, it has been conclusively and decisively determined and pronounced upon with finality by the Court in the Judgment delivered on the 26″ of May, 2023 in Appeal No. SC/CV/501/2023; PDP v. INEC & 3 Ors., which is an extant and binding decision on the Appellants in this appeal. The issue cannot be relitigated before this court, whist the decision subsists. In fact, it is an abuse of the court process to bring an SC/CV/1130/2023
appeal on an issue that has been settled by the court – Nyame v.
FRN (2021) 6 NWLR (pt. 1772) 4 (SC).
In the above premises, the appeal stands unmeritorious and I join the Lead Judgment in dismissing same in all the terms set out therein.”
In the above circumstances, it is lame and idle to argue that the court • did not make a pronouncement on the issue of subpoened witnesses
whose statements on oath were not filed along with an election petition, but long after the expiration of the time limit for the presentation of
an election petition.
With respect, the term “OFFICIAL WITNESSES” is subsumed in the term
“subpoened witnesses” connotes every competent and compellable witness or witnesses, regardless of their nomenclature, ordered or commanded to appear before a court or tribunal in the exercise of its judicial
authority to require and compel the attendance of all persons required to either produce evidence (documents, etc.,), testify, or otherwise give evidence in judicial proceedings.
The provisions of paragraph 4 of the 1» schedule to the Electoral Act, 2022, dealing with the contents of the election petition, in sub-paragraphs (5), (6)
and (7) provide that: “(5) (i) The election petition shall be accompanied by — (a)
a list of the witnesses that the petitioner intends to call in proof of the petition;
(b)
written statements an oath of the witnesses; and copies or lists of every document to be relied on at the hearing of the petition.
6)
A petition that fails to comply with subparagraph (5) shall not be accepted for filing by the secretary.
An election petition, which does not comply with subparagraph (1) or any provision of that subparagraph is defective and may be struck at by the tribunal or court.”

The community requirements in these mandatory prescriptions are that at the time of presentation/filing of an election petition before an election petition tribunal or court, as the case may be, the petition must (by the deliberate use of the word “shall”) be accompanied, brought or filed along with the following:-
(i) A list of the witnesses to be called in proof of the petition;
ii) Written. statements on oath, of the said witnesses on the list of
witnesses, and
iii) Copies or list of every document to be tendered and relied on at the
hearing of the petition.

To demonstrate that these requirements are not optional or at the discretion of the person/s presenting or filing an election petition, the provisions in sub-paragraphs 6 and 7 stipulate that an election petition presented for Ming which is not accompanied by items listed in sub-paragraph (5), shall not be accepted for filing on the ground that it is defective for non-compliance with the mandatory prescriptions therein.

If the petition was accepted for filing and was filed, the tribunal or court is vested with the unfettered discretion to strike it out for being defective on ground of non-compliance.
The express and explicit requirement in the above provision is that the list of
witnesses and their written statements on oath on which a petitioner intends
to rely on in proof of the petition at the hearing, must accompany the petition at the time of presentation of the petition for filing, to the secretary of the election tribunal, or court. Failure or omission to comply with the requirements at the material time, as seen in the provisions, renders the petition defective and liable to be struck out.

However, due to the provisions in paragraph 14(1) and (2) (a) of the 1″ Schedule allowing amendment to an election petition before the expiration of SC/CV/1130/2023
the time limited for the presentation of an election petition under the provision of Section: 132 (7) of the Electoral Act, the courts have consistently held that the filing of witnesses written statements on oath after the expiration of such time constituted an amendment of the election petition which is not
permitted and renders such statements on oath incompetent and inadmissible in evidence, as demonstrated in the cases referred to earlier on the point. See
also Ojukwu v. Yar’Adua (2009) 12 NWLR (pt. 1154) 50, Yaki v. Bagudu
(2015) 18 NWLR (pt. 1491) 288.
In the premises of the extant position of the law, the two (2) lower courts are right in holding that the written statements on oath of the PW1, PW2, PW3, and PW30, who were subpoenaed witnesses, filed outside of or after the expiration of the time limited for the presentation of an election petition, are invalid, incompetent and therefore inadmissible in evidence in the determination of the Appellants’ petition. The law is known that the courts; trial or appellate can only base their decision on legally admissible evidence in a case and have the power to subsequently expunge any legally inadmissible evidence admitted in evidence, anyhow. See Shanu v. Afribank, Plc (2002) 6 SC (pt. II) 135, (2002) 17 NWLR (pt. 795) 185, Shittu v. Fashawe (2005)7 SC (pt. I1) 107, Onochue v. Odogwu (2006) All FWLR (pt. 317) 544, Abubakar v. Chuks (2008) 2 MJSC, 190, Suberu v. State (2010) 8 NWLR (pt. 1197) 586, FRN v. Usman (2012) 3 MJSC (pt. 1) 25.

For that reason, the argument that the trial and lower court were wrong in the failure or omission to assess and evaluate the expunged evidence even though
their decisions are not final, flies in the face of the established principle of law stated and restated in these cases and so untenable. Since the expunged
evidence was clearly and manifestly inadmissible in law, it was no longer evidence which the trial tribunal and the court below had the judicial duty to consider, assess and evaluate, in the circumstances of the Appellants’ petition, as it was not legal evidence before the courts. Ismail v. FRN (2020)
2 NWLR (pt. 1707) 85, Radiographers Reg. Bd, Nig. V. M. & HWUN (2021)
8 NWLR (pt. 1777) 149, Abubakar v. Joseph (2008) 13 NWLR (pt. 1104)
307, Nwaogu v. Atuma (2013) 11 NWIR (pt. 1364) 117.

In the above circumstances, the invitation by the Appellants to this court, pursuant to Section 22 of the Supreme Court Act, to consider, assess and evaluate, the expunged evidence is misplaced, unviable in law and bound to
be rejected since the court lacks the vires to do so.

SC/CV/1130/2023
Now, I turn to the curious invitation by the Appellants to the court to overrule the Obi v. INEC (supra) in the event that this court is of the opinion that
the arguments on the issue are “worthless” and affirms the decision therein.
The resolution of the issue against the Appellants is an emphatic and express affirmation of the decision in Obi v. INEC as an extant and binding authority on the issue, with finality. The resolution of the issue has effectively, effectually and completely “taken the, wind out of the sail” of the Appellants’ invitation for the court to over-rule the decision to render its consideration on
the merit, of no practical and useful purport in this appeal. All the same, it is indisputable that by the provisions of Order 6, Rule 5 (4) of the Supreme Court Rules and battalions of pronouncements by the court in respect thereof,
including the cases cited by the parties in their respective briefs of argument and set out earlier in this judgment, that it has the discretionary judicial authority and power, in appropriate and deserving situations and circumstances, to subsequently, either depart from or out rightly, over-rule a previous decision/s when invited and fully satisfied of the sincere and real need to do so. Although, this court is bound by its previous decision on the recognized principle of stare decisis for the purpose certainty and finality in

the law, see Order 8, Rule 16 of Supreme Court Rules, Uwemedimo v. Mobil Prod. Nig. Unitd. (2019) 12 NWLR (pt. 1685) 1, Jev v. Yortom (2015) 15 NWIR (pt. 1483) 484, Adebayo v. PDP (2013) All PWLR (pt. 615) 203, its consistent attitude is that it will not hesitate to review, depart from or over-
rule any previous decision when special, exceptional, cogent and substantial reasons are shown to exist to warrant the exercise of the judicial discretion to do so. However, it will neither be judicial nor a judicious exercise of the judicial discretion by the court at the instance of a party who loses an appeal on firmly established principles of law on the ground only that the law does
not favour him on the peculiar facts and circumstances of his case. Perhaps, I
should point out that the principle of law on the filing of written statements
on oath of subpoened witnesses stated in Oke v. Mimiko (supra) and affirmed
by the court in Obi v. INEC following Abubakar v. INEC (supra), has been
applied in election matters since then as an established principle of law known to all diligent and vigilant parties to an election petition proceedings without claims of its being “unjust, undesirable and occasioning miscarriage of justice” merely because it would allegedly, “inflict hardship and injustice” on an indolent and tardy party. This court, in the case of Okechukwu v.
Obiano (2020) 8 NWIR (pL. 1726) 276 al 310-311, had stated that-
“The peculiar nature of election petitions has been effirmed in several judicial decisions, including Orube r. NEC (1988) 5
NWLR (m. 94) 323 at p. 347 paras. F-G, wherein Uwais, ISC (as he then was, observed that:
importance to the well-being of a democratic society, are regarded with an aura that places them over and above the normal day to day transactions between individuals which gives rise do ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election pelitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”
Thus, clection petitions are regarded with an aura that places them over and above the normal day-to-day transactions, which give rise do ordinary and general claims in court – Orubu v. N.E.C. (supra).
One of the most important provisions in all the Laws relating to Election Petitions Tribunal is essentiality of time..
The essence
thereof is that as much as possible, such petitions should be given expeditions adjudication – see Balogun v. Odumosu (1999) 2
NWLR (pr. 592) 590 at p. 597 paras.
B-C, wherein Parts-
Acholonu, JCA (as he then was) stated:
“The issue of time to complete filing of all processes relating to hearing and determination of an election petition was uppermost in the mind of the legislation. The enactment stretches itself further afield to do away with tardiness and waste of time and endeavoured to constrict the time of doing a particular act within a time frame-work. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The court could not aid anyone, who decides to sleep only to wake up then it is too late.” SC.”
See also Hassan v. Aliyu & Ors. (2010) 17 NWLR (pt. 1223) 547
The law also remains that statutory provisions apply in a case even if the application results in some hardship or is otherwise oncrous.
The conditions or situations that would justify the review, departure from or over-ruling a previous decision by this court are now settled by the numerous pronouncements by the court in the cases in which it was invited to do so.
Sec, for example, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) NSCC, 226,
(1983) 1 SCNLR, 296, Rossek v. A.C.B. Ltd. (1993) 10 SCNJ, 36, (1993) 8 NWLR (pt. 312) 382, Adegoke Motors Ltd. v. Adesanya (1989) 5 SC, 113,
(1989) 3 NWLR (pt. 109) 250, Bakare v. Lagos State Civil Service Commission (1992) 10 SCNJ, 173, (1992) 8 NWLR (pt. 262) 641, ISA Ind.
Ltd. v. FRN, PIc (No.1) 12 NWRL) (pt. 1320) 326, SEC v. Okcke (2018) |2
NWLR (pt. 1634) 462, Abdulkadir v. Mohammed (2019) 12 NWLR (pt.
1674) 365; and the very recent case of Oli v. INEC (supra) wherein this court, in brief, restated the situations or circumstances in which it will review, set aside or even over-rule its previous decision, as follows:-
“This Supreme Court will respect its previous decisions as a court of last resort which is bound by its precedents. However, the court will not hesitate to overrule any decision of its own which was reached on wrong principles.
Thus, where it is shown or demonstrated that the carlier decision is either erroneous in law or was given per incuriam or that it has become an instrument of injustice, the Supreme Court may depart from previous decisions in subsequent cases.”
The Appellants have failed to convincingly demonstrate that any of such situations or circumstances exists in respect of the decision in Obi v. INEC to justify even a review, let alone sitting aside or over-ruling the decision which gives effect to and applies the extant mandatory, statutory requirements for the filing of election petitions in line with constitutional provisions and the Electoral Act time lines.
This regard, I endorse the statement by this Court in Omisore v. Aregbesola
(2015) LPELR-24803 (SC), cited at page 18 of the 1″ Respondent’s Brief, also reported in (2015) 15 NWLR (pt. 1482) 205, that:-
“Strictly, speaking, this sort of invidious provision should not feature in a user-friendly judicial process.
However, in the
peculiar circumstance of the urgency involved in the determination of such electoral disputes, the much this court can do is to wink at the tyranny of deadlines entrenched therein.”
In the result, I find not merit in the Appellants arguments on the issue and it is resolved against them.
Issue 2: Whether the court below was right in holding that the 2″d Respondent was qualified to contest or was not disqualified by the provisions SC/CV/1130/2023
of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) from contesting the Governorship Election held in Enugu State on the 18″.
March, 2023.
Appellants’ Submissions:
The Appellants’ submissions on issue I above, which have been found to be unmeritorious and the issue resolved against the Appellants are adopted under the issue and it is maintained that had the evidence of PW1, PW2, PW3
and PW30 been assessed by the court below, it would have found that the Appellants had proved that the 2″ Respondent presented a forged NYSC Certificate to the 1″ Respondent in contravention of the requirements of Section 182(1) of the Constitution.
It is further submitted that the court below erred in holding that the
Appellants did not prove the disqualification of the 2″d
respondent on the
ground that NYSC Certificate is not a qualifying factor under Section 177 of the Constitution, since in order to be demed qualified to contest for the position of a Governor, a person must meet the minimum qualification under
Section 177, as well as not being disqualified under Section 182 (1) of the Constitution. In other words, if a person is qualified under Section 177 of the SC/CV/1130/2023
of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) from contesting the Governorship Election held in Enugu State on the 18″.
March, 2023.
Appellants’ Submissions:
The Appellants’ submissions on issue I above, which have been found to be unmeritorious and the issue resolved against the Appellants are adopted under the issue and it is maintained that had the evidence of PW1, PW2, PW3
and PW30 been assessed by the court below, it would have found that the Appellants had proved that the 2″ Respondent presented a forged NYSC Certificate to the 1″ Respondent in contravention of the requirements of Section 182(1) of the Constitution.
It is further submitted that the court below erred in holding that the
Appellants did not prove the disqualification of the 2″d
respondent on the
ground that NYSC Certificate is not a qualifying factor under Section 177 of the Constitution, since in order to be demed qualified to contest for the position of a Governor, a person must meet the minimum qualification under
Section 177, as well as not being disqualified under Section 182 (1) of the Constitution. In other words, if a person is qualified under Section 177 of the. 2nd Respondent to the I” Respondent “in aid of his qualification, “was superfluous, which does not defeat the case of the Appellants as it was at best, unnecessary, relying on Jimi v. INEC (2022) 8 NWLR (pt. 1833) 585 at 595 (SC), Oloyode v. State (2021) 4 NWLR (pt. 1765) 144 at 160 (SC), Emoga v. State (1997) 9 NWLR (pt. 519) 25 at 39 (SC), Pali v. Abdu (2019)
5 NWLR (pt. 1665) 320 at 334 (SC), Jimoh v. Minister of FCT (2019) S NWLR (pt. 1365) 227 at 253 (SC) and Garan v. Olumu (2013) 11 NWLR (pt.
1365) 227 at 253 (SC). In addition, the cases of Oni v. Oyebanji (2023) 13
NWLR (pt. 1902) 507 at 543 (SC) and Tarzoor v. loraer (2016) 3 NWLR (pt.
–
1500) 463 at 498-499 (SC) on the interpretation of Sections 177 and 182 of the Constitution are cited in support of the argument that the interpretation by
the court below as wrong in that the sections do not cancel each other.
It is also the case of the Appellants that the definition of “Qualification” in Section 318 of the Constitution does not override the disqualifying factors in
section 182(1) O).
According to the learned Silk for the Appellants, citing paragraphs 24 – 35 of the Appellants’ petition, paragraphs 3, 4, and 12 of the 1″ Respondent’s Reply to the petition, paragraphs 11 and 15 of the 2″” Respondent’s Reply to the SC/CV/1130/2023
petition and paragraph 25 of the 3″‘ Respondent’s Reply to the petition, none of the Respondents denied that the 2″‘ Respondent presented the forged NYSC discharged Certificate to the I” Respondent. Maihaja v. Gaidam
(2018) 4 NWLR (pt. 1610) 454 at 489 (SC) was referred to on proof presentation of a forged certificate, which the Appellants were said to have discharged vide the evidence of PW1, PW2, PW3, PW26, and PW30.
The court is urged to resolve the issue in favor of the Appellant.
1″ Respondent’s Submissions:
It is submitted that the Appellants’ case in the petition was that the 2nd Respondent presented a forged NYSC certificate in aid of his qualification and so they have the burden to prove that:-
• The NYSC certificate was presented by the 2″‘ Respondent to the • Is Respondent in aid of his qualification and
• The NYSC is forged,
on the authority of Imam v. Sheriff (2004) LPELR-7315 (CA), Lado v.
Masari (2019) LPELR-55596 (SC), Abubakar v. INEC (2020) 12 NWLR (pt.
1737) 37 and Abubakar v. Yar’ Adua (2008) 19 NWLR (pt. 1120) 1.

The learned SAN for the 1″ Respondent then argued that the NYSC certificate is not a qualifying certificate and so cannot be presented in aid of the 2″d Respondent’s qualification and that the argument by the Appellants
before this court that the pleading “in aid of his qualification” is superfluous and that their case is not that the 2″‘ Respondent was not academically qualified to contest the election, but he presented a forged NYSC certificate to the 1″ Respondent which disqualified him from the contest, is a case
outside the pleadings, thereby constituting, approbation and re-probation at the same time which is not, by the authority in A. G. Rivers State v. A. G.
Akwa Ibom State & Anor. (2011) LPELR-633 (SC), and Ogombachi v.
Amadi & Ors. (2018) LPELR 45152 (SC). The case cited by the Appellants in support of the arguments are said not to assist the Appellants as they do not
relate to the point and it is further argued that a party will not be allowed to charge his case after issues were joined as stated in Onwuka v. Omogui
(1992) LPELR -2719 (SC), Adenuga v. Odumeru (2001) LPELR – 130 (SC),
(2009) 10 NWLR (pt. 1150) 553 and Osuji v. Ekeocha (2009) LPELR-2816 (SC), (2009) 16 NWLR (pt. 1166) 81. The Learned Silk then contends that Appellants at paragraph 4.14 of their brief agree that section 177(d) and SC/CV/1130/2023
section 182(1) (i) are distinct and pleadings on one cannot be the basis of proof of the other and the trial Tribunal was right to use section 318 of the Constitution in the interpretation of qualification under Section 177 (d).
It is his case that the Appellants did not prove the allegation under section 182(1) (i) as required by Section 136 of the Evidence Act with the evidence of PWl and PW2, being expunged which, in any case, was laced with hearsay, which is inadmissible, vide Kakih v. P.D.P (2014) 15 NWLR (pt.
1374) no page provided, (2014) LPELR-23277 (SC), Buhari v. Obasanjo
(2005) 9 SCNJ, I and Eghareva v. Osagic (2009) LPELR-1044 (SC).
2″‘ Respondent’s Submissions:
The learned SAN for the 2″‘ Respondent submits that the court below is right to have affirmed the decision of the trial tribunal that the 2″‘ Respondent was qualified to contest the Governorship election held on 18 March, 2023 in Enugu State as the Appellants’ case was based on the allegation that he presented a forged NYSC certificate to the 1″ Respondent in aid of his qualification to contest the election and entirely built on the evidence of
PWI, PW2 and PW3, which was expunged for being inadmissible by the trial SC/CV/1130/2023
tribunal, affirmed by the court below. Decisions of the tribunal and the court below are referred to on the effect of expunging the evidence of the said witnesses said to be unimpeachable in law and being concurrent decisions,
this court, on the authority of Kanawa v. INEC (2022) 1 NWLR (pt. 1812)
393 at 419-420, it prayed not to disturb.
Similar arguments are made on the validity of the witnesses depositions filed after the expiration of the time limited for the presentation of the clection
petition and the court below is said to be right to have followed the decision of this court in Oke v. Mimiko (supra).
In addition, that the allegation of forgery by the Appellant was not proved as required by the law, ic., beyond reasonable doubt, as stated in Alake v. State
(1991) 7 NWLR (pt. 205) 567 at 592 and Ogah v. Ikpeazu (2017) 17 NWLR (pt. 1594) 567, even if the allegation in the pleadings were not challenged by the Respondents; on the authority of ADC v. Obaseki (2022) 2 NWLR (pt.
1814) 273 at 319-320, Edevie v. Orohwedor (2023) 8 NWLR (pt. 1886) 219 at 285 and the decision in Appeal No. SC/CV/614/2023; Chief I.
Aghnoarianovwe v. PDP & 2 Ors. delivered on 7″ July, 2023.
The court is urged to resolve the issue in fovour of the Respondents. SC/CV/1130/2023
3′ Respondent’s Submissions:-
The issue is argued as 3′ Respondent’s Issue 3 and inter alia, similar arguments are made on the Appellants changing their case from the one presented in their pleading, which is not permitted in law as stated in PDP v.
INEC (2014) LPELR -23808 (SC) p53 and Andrew v. INEC. (2017) NWLR (pt. ) 4851 (SC) pp – 78 – 79 and it is further submitted that the expression
“in aid of qualification” used by the Appellants in their pleadings is a requirement of the law and hurdle which must be scaled before the alleged forged certificate can disqualify a candidate. The cases of Adeleke v:
Raheem (2019) LPELR – 48729 (CA) and Oyetola v. INEC (2023) 11
NWLR (pt. 1894) 125 are commended to the court on the qualification to
contest Governorship election under section 177 of the Constitution and it is contended that the 2″d Respondent being a candidate who had already
qualified by virtue of Section 177, he cannot be disqualified by virtue of a certificate he did not rely on and which was not in the nature of certificates, for the purpose of Sections 177, 182 and 318 of the Constitution, to be submitted to the 1″ Respondent.

The Appellants are also said to have failed to prove the allegation of forgery since they did produce two (2) certificates; one genuine and the other forged as required in APC v. PDP (2015) LPELR – 24587 (SC) 58 and the court is urged to resolved the issue in favour of the 3″‘ Respondent.
The Appellants’ Reply briefs to the 1″ Respondent Brief filed on the 14th December, 2023, to the 2″d Respondent’s Brief filed on the 13″ December, 2023 and to the 3″* Respondent’s Brief filed on the 11th October, 2023,
largely embarked on blanket response to every arguments canvassed by the Respondents on the issues argued in the Appellants’ brief as if all the arguments had raised new or fresh issues/points outside the ones argued in the Appellants’ brief as if all the arguments had raised new or fresh issues/points outside the ones argued in the Appellants’ brief to which they were responses. That is not the recognized purpose and use to which a Reply
brief in an appeal before this Court can be put by an Appellant, as stated and restated by the court in many decisions, inclidung Adisa v. Akande (2012) 15
NWLR (pt. 1324) 538 (SC), Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (pt. 1330) 523 (SC), Oguanuhu v. Chiegboka (2013) All FWLR (pt. 703)
1925 (SC), Hussein v. Mohammed (2015) 3 NWLR (pt. 1445) 100 (SC), Brown v. State (2017) 4 NWLR (pt. 1556) 341 (SC), Ugo v. Ummuna (2018)
2 NWLR (pt. 1602) 102 (SC), Okoric v. State (2018) 11 NWLR (pt. 1629) | (SC), Okala v. Odah (2019) 9 NWLR (pt. 1678) 562 (SC). The only use and purpose of a Reply brief in an appeal, as the name clearly shows, that is permitted is for an Appellant to respond to reply to, or answer any new or fresh points raised by or arising out of the Respondents’ brief which
responded or reacted to the issues/points canvassed in the Appellants’ brief.
It cannot and should not be used to re-argue an appeal by way of responding or re-acting to every arguments contained in the Respondents’ brief
•
regardless of whether they raise new or fresh points different from the ones
canvassed in the appellants’ brief, which may warrant-answer/s. Repetition of or further arguments of issues/point already contained in an Appellants’
brief do not constitute a valid and competent Reply brief in an appeal which
the appellate court has the duty to countenance. That is the vice or defect
afflicting the three (3) Reply Briefs filed by the Appellants to the
Respondents’ Briefs mentioned before now, without exception, and they are
liable to be discountenanced. They are.
Resolution: SC/CV/1130/2023
Ground 1 upon which the Appellants’ petition was premised or based, was as follows:-
“i.
The 2″ Respondent was at the time of the election, not qualified to contest the election.”
In support of the ground, the Appellants provided the facts to be relied on and pleaded same in paragraphs 24 and 25 of the petition in the following terms.-
“24. The petitioners contend that the 2″ Respondent was, at the time of the election, not qualified to contest the dispuied election to the office of Governor of Enugu State, in that he presented a forged National Youth Service Corps. (NYSC) Certificate bearing Certificate Number: 4808297 to the I” Respondent in aid of his qualification.
25. The petitioners over that under the Constitution of the Federal Republic of Nigeria 1999 (as amended), the 2″‘ Respondent was disqualified from contesting the disputed election to the office of Governor of Enugu State held on 18 March, 2023, having presented a forged National. Youth Service Corps Certificate with Certificate number A808297 to the I” Respondent.”
These facts are plain, straightforward, unequivocal and very clear in language and purport which is simply that the 2″ Respondent is said not to be qualified, at the time of the election for the office of Governor of Enugu State conducted on the 18″ March, 2023, because he presented a forged NYSC
Certificate in aid of his qualification to contest the said election and so was
disqualified to contest the election. In the efforts to discharge the burden of
proof imposed by the law; (sections 131, 132, 133(1) and 135(1) and (2) of the Evidence Act, 2011) of the allegations which are both civil and SC/CV/1130/2023
in nature, the Appellants, pursuant to and in compliance with the provision of paragraph 4(5) of the 1″ Schedule to the Electoral Act; accompanied the petition with a list/names and written statements on oath of the witnesses they intended to rely on at the hearing of the petition, which appears at pages 79 – 80 of vol. I of the Record of Appeal. At No. 43 on the list, it was stated
“other witnesses that will be subpoened”.
The petition was dated the 5″‘ and presented before the trial tribunal for filing on the 6″ of April, 2023, as borned out at pages 76 and 38, respectively, of Vol. 1 of the Record of Appeal. It was because the Appellants are aware that the requirements in paragraph 4(5) of the 1″ Schedule to the Electoral Act are mandatory in their tenor that they had to accompany their petition with the list/names of witnesses and their written statements on oath at the time of
presenting the petition for filing before the trial tribunal in order to avoid the
consequence of its being defective and liable to be struck out by that tribunal
pursuant to the provisions in paragraph 4(6) and (7). As can easily be seen,
the provision of paragraph 4(5) (6) which requires that written statements on
oath of the witnesses to accompany a petition does not categorize or classify
the witnesses by nomenclature of being official or unofficial, subpoened or SC/CV/1130.2023
unsubpoened witnesses whose written statements on oath “shall” accompany the petition. The provision means what it plainly says: written statements of the witnesses a petitioner intends to call at the hearing of the petition which simply connotes “written statements of all the witnesses” he intends to call at the hearing regardless of any classification or categorization of either being subpoened or unsubpoened, or official or unofficial witnesses so long as they are witnesses the petitioner intends to call at his instance and discretion to give evidence at the hearing of his petition.
This was the position of this court in Oke v. Mimiko (supra) where it stated that:-
“There is no dichotomy between witnesses mentioned in paragraph 4(5) of the First Schedule to the Electoral Act in respect of witnesses statements on oath. of a subpoened witnesses.
There is no distinction between witness and subpoened witnesses under paragraph 4(5) of the First Schedule to the Electoral Act. In essence, paragraph 4(5) of the Electoral Act covers witness statement on oaths of all categories of witnesses the petitioner intend to call at the trial of his or her petition” (underline provided).
I have earlier under Issue I, found that the written statements on oath of the
witnesses whose evidence was expunged were filed outside of and after the
expiration of the time limited for the presentation of the petition and so they are invalid, incompetent and legally inadmissible in evidence and so rightly expunged.
In its judgment, subjcet of this appeal, the court below, in affirming the decision by the trial tribunal on proof of the ground I of the Appellants’ petition on 2″‘ Respondent’s qualification and disqualification, had held that:-
“The allegation of forgery against the 2” respondent is criminal in nature which requires proof beyond reasonable doubt. The burden of proof rests squarely on the appellant who alleged forgery. The Jw is trite that one of the best ways of proving forgery is to tender Official disclaimers from the institution which they party alleged to have forged the certificate claimed to have issued the certificate to him, see MAHALA VS. GAIDIAN (2017) 4 NWLR (PT. 1610)
454; DANTIYE VS. APC & ORS. (2021) 18 NWLR (PT. 1808) 381
AND APC VS. OBASEKI (2022) 2 NWLR (PT. 1814) 273.
Recently, the Supreme Court in the case of CHIEF IKIE AGHWARIANOVWE VS. PDP & 2 ORS. SC/CV/614/2023 (unreported) delivered on the 7″ of July, 2023 held that to succeed on the presentation of false/forged document to INEC, on such an allegation, he must prove that:-i.
The existence of a document in writing.
ії.
That the document or writing was forged.
il.
That the party who made it known that the document or writing was false; and
รง.
The party alleged the forged document to be acted as genuine.
Also in OYETOLA VS. INEC (2023) 11 NWLR (PT. 1894) 125, the Supreme Court Per Agim, JSC held that the basis evidence required to prove that a certificate is forged is a disclaimer from the institution that is said to have issued the certificate. Without evidence from the institution or body that is purported to have issued the certificate or other document stating that it did not issue the certificate or document or that any part of the certificate or document is not made by it, it would be idle and useless to contend that it is forged. The appellant in proof of the allegation relied on the testimony of
PWI, PW2 and PW3. While the 2″l and 3′ respondents relied on the testimony of DWI, DW2 and DW3, both parties tendered exhibits.
documents through these witnesses which were admitted as
However the evidence of PWI, PW2 and PW3, having been expunged with the exhibits tendered their evidence and the exhibits tendered no longer form part of the record to be relied upon.
Il goes without saying that no evidence was adduced to establish the allegation of forgery of the NYSC discharged certificate from the directorate of the National Youth Service Corps against the 2″d Respondent, which authenticity and validity remained intact. See Mohammed vs. Wamako (2018) 7 NWLR (pt. 1619) 573; 1.P.C. vs.
ELEBEKE (2022) 10 NWLR (PT. 1837) and A.P.C. vs. Obaseki
(2022) 2 NWLR (pt. 1814) 273.”
This position of the court below is unassailable since the basis of the allegation of disqualification of the 2″d Respondent under Section 182 (1) (*)
of the Constitution for presenting a forged NYSC certificate to the 15t Respondent in aid of his qualification was no longer available for the purpose
of proof of the allegation having been properly expunged as inadmissible
evidence. The evidence of PW1, PW2 and PW3, in particular, was the
foundation upon which the allegation was entirely predicated and in the
absence of such evidence, the allegation remains without any proof at all, let alone one beyond reasonable, as required by the law. The burden of proof lies squarely and firmly on a petitioner to prove every material allegations
made in his petition on the balance of probabilities or, as in this appeal, beyond reasonable doubt on the allegation of forgery of the NYSC certificate against the 2″‘ Respondent and until the burden is satisfactorily discharged,
the allegations would remain bare, liable to be dismissed for lack of proof.
A.C.N. v. Nyako (2015) 18 NWLR (pt. 1419) 352 (SC), Omisore v.
Aregbosola (2015) 15 NWLR (pt. 1482) 205 (SC), Salch v. Abah (2017) 12 NWLR (pt. 1578) 100 (SC) Ojukwu v. Yar’Adua (2009) 12 NWLR (pt.
1157) 50 (SC), Audu v. INEC (No.2) (2010) 13 NWLR (pt. 1212) 456, Eze
v. Okoloagu (2010) 3 NWLR (pt. 1180) 183, Nduul v. Wayo (2018) 16, NWLr (pt. 1646) 548 (SC), Abubakar v. INEC (2020) 12 NWLR (pt. 1737)
37 at 154.
That is the inevitable fate of the Appellants’ allegation of presentation of a forged NYSC Certificate by the 2″‘ Respondent to the 1″ Respondent in aid of his qualification to contest the election in question and both the trial Tribunal and the court below are right to have dismissed the allegations in
paragraphs 24 and 25 of the Appellants’ petition for lack of evidence to prove
same as required by the evidence law.
There is no merit in the Appellants’
arguments on the issue and it is resolved
against them. SC/CV/1130/2023
Issue 3:
Whether the lower court was right in affirming the trial Tribunal assessment of the evidence of the witnesses called by the Appellants and the documentary evidence tendered by them on the one hand; and the totality of the evidence called by the parties on the other hand.
Appellants’ Submissions:
The court below is said to have wrongly assessed the evidence called by the Appellants and the totality of the evidence of the witnesses and in affirming the decision of the trial Tribunal that Appellants witnesses; as polling units (P/U) agents and word collation agents, gave the same evidence, relying on Gundiri v. Nyako (2014) NWLR (pt. 1391) 211 and Hashidu v. Goje (2003)
15 NWLR (pt. 843) 352, which are said not to have laid down such universal principle. In any case, it is contended for the Appellants that each case would be determined on the facts presented and the witnesses in the case gave
different figures (votes affected) in support of the Appellants’ pleadings of
violating/wrong calculations or entries and so did not chorus on another on the vital aspect of the petition.
The case of Obasi v. Mikson Estab. Ind. Ltd. (2016) 16 NWLR (pt. 1539)
335 at 365 (SC) is cited for the submission and it is further argued that the court below also erred in affirming the decision of the tribunal that the Appellants’ witnesses’ evidence was, worthless on the ground that they were
not duly accredited agents of the Appellants, contrary to the Evidence Act, on the nature of acceptable evidence in judicial proceedings and which did not limit the competence of witnesses in clection petition, to only accredited
party agents. Abubakar v. INEC (supra), Ladoja v. Ajimobi (2016) 20 NWIR (pt. 1579) 87 at 159, Oyetola v. INBC (2023) 11 NWIR (pt. 1894)
125 at 177 and 193 (SC) and Akpoti v. INEC (2022) 9 NWLR (pt. 1836) 403 at 428 (SC) on the competence of only cyc witnesses to testify as to what
they saw at the polling units and it is’ submitted that there was no evidence that the Appellants’ witnesses were not eye witnesses and so competent to
give evidence of what they saw at the polling units. On the authority of Buhari v. INEC (2008) 19 NWLR (pt. 1120) 246 at 424 (SC), the witnesses are also said to be Appellants’ agents who identified their signatures on the result sheets and are competent under Sections 175, 126 and 256 of the
Evidence Act to give evidence.
In addition, it is argued that the Appellants had demonstrated the wrong calculations and entries in the Forms EC8 As and EC8 Bs tendered by them for the wards complained about in Obollo Bliti, Awala and Obollo Fike in Ndenu L. G. Area through the evidence of PW4 and PW22 who are competent witnesses, vide Omisore v. Aregbosola (supra). It is also the case of the Appellants that the court below was wrong to have affirmed the decision of the trial Tribunal that the Appellants did not call evidence in respect of 15 polling units to prove the allegations made in the petition on wrong collation of results and did not link the alleged wrong collation at the Ward level with the final declaration. According to the Appellants, they tendered Forms BC8 Cs, BC8 Ds and BC& Es which established the inaccurate entries of results that were at variance with what transpired at the
polling units and the lower courts should have utilized Section 137 of the
Electoral Act in respect of places where no oral evidence was called.
Reference was made to Nwobodo v. Onoh (1984) SCNLR, 1 at 34 and Uzodinma v. Ihedioha (supra) on whether polling units agents need to be
called on complaints about collation at Ward level and it is said that the Appellants also proved their allegation of over-voting by the BVAS
Accreditation Report (Exhibit EPT 01/19c) and evidence of PW9, PW 18,
Pw22 – PW29 which was not evaluated on the ground that they did not sign SC/CV/1 130/2023
the result sheets as accredited agents of the Appellants, even though they
were eye witnesses. The Appellants insist that having tendered the voter
registers, statement of results sheets and the BVAS Report, they had placed sufficient materials before the Tribunal to rely on to determine the question
of over-voting in line with the requirements in Oyctola v. INEC (supra) and Abubakar v. INEC (supra). The court is then called upon to re-compute the results, as was done by the court below in Ngige v. Obi (2006) LPELR –
12920 (CA) 141-142 and deduct the votes affected by over-voting in Enugu
East and Nkanu East Local Government Areas which would show that the
Appellants had a total votes of One Hundred and Fifty-Seven Thousand, Nine Hundred and Ninety-Seven (157,997) votes while the 2″* and 3″‘ Respondents had a total of One Hundred and Fifty-Two Thousand, Seven Hundred and
Seventy-Eight (152, 778) votes. That even if the deduction of votes by the Tribunal is upheld by this court, the 1″ Appellant will still be held to have won the election and the court is urged to resolve the issue in Appellants’ lavour.
1″ Respondent’s Submissions:

SC/CV/1130/2023
The submissions are that the Appellants called two (2) sets of witnesses;
PW9 – PWI& and PW25 and PW29, who chorused their evidence in exactly the same sequence of narration of events at the polling unit, different only in their chosen initials, names of Polling units and scores recorded at the units.
The evidence of PWS is said to be the same with that of PW6, PW7, PW8, PW20, PW21 and PW22, just as evidence of PW4, PW19, PW23 and PW24, which all are called parroting or parroted statements on which the court will place no iota of credibility on the authority of Guadiri v. Nyako (supra), Yahya v. Dankwambo (2016) LPELR-48364 (SC) and Maduabum v. Nwosu
(2010) 13 NWLR (pt. 1212) 623 at 656-757. As an example, PW6 and PW8 were said to have, under cross examination, confirmed that their statements
oath were written by their lawyers for them after stating the facts in Igbo
language in which it was translated to them, but adopted without a jurat since the witnesses admitted that they cannot read in English language. It is also submitted, relying on Oyetola v. INEC (supra), that since the Appellants did prove their case by calling credible evidence, Section 137 of the Electoral Act does not avail as it relates to evidence of non-compliance and since the reliefs claimed by the Appellants are declaratory, they must succeed on the strength of their own case.
CPC v. INEC (2011) 8 NWLR (pt. 1279) 493 at 438 is cited for the submission and the Appellants are said not to be entitled to any of the reliefs they sought, having regards to the evidence before the trial Tribunal.
2nd Respondents’ Submissions:
Findings by the trial tribunal and the court below on the issue of non-accreditation of Appellants’ witnesses by the l” Respondent were set out and it is submitted that they are right that the evidence of the said witnesses lacks credibility and probative value such this court will not interfere with them since they are not shown to be perverse, on the authority of Kareem v. State
(2021) 17 NWLR (pt. 1806) 503 at 536. It is pointed out that the Appellants’ witnesses had admitted, under cross-examination, that they were not duly accredited by the 1″ Respondent as polling unit or Ward agents of the Appellants and since the law requires proof of claims of falsification of votes by credible evidence of Polling unit agents, vide ANPP v. Usman (supra) and
Hashidu v. Goje (supra), the evidence of the witnesses who were not presented as, eye witnesses, but as INEC accredited agents, is not credible. SC/CV/1130/2023
The evidence of PW10, PW11, PW12 and PW14 was referred to and said to have admitted that no over-voting occurred at their respective polling units.
In the alternative, it is submitted that by the provisions of Section 51(3) and
(4) of the Electoral Act and paragraphs 62 and 82 of INEC Guidelines, where over-voting will alter the return made by the 1″ Respondent, the consequence
will be another poll; supplementary election, and not return as sought by the Appellants.
Other arguments on the issue are
similar to the ones made by the 1″
Respondent, adding that the Appellants have not appealed against the finding that they failed to called evidence in respect of 15 Polling units made by the
Tribunal and since they only called Nine (9) incompetent and unreliable witnesses in proof of falsification of results in 20 polling units, the arguments that they produced Two (2) sets of results have no legs to stand. It is also the case of the 2″ Respondent that the challenge by the Appellants on the
decision by the court below on the evidence of PW4 and PW26 does not arise from any ground of appeal, is incompetent and ought, on the authority of Olumolu v. Islamic Trust of Nigeria (1996) LPELR – 2626 (SC), to be discountenanced by the court and the court is urged to resolve the issue in favour of the Respondents.
Respondent’s Submissions:
The issue is argued as 3″‘ Respondent’s issue iv under which it is submitted that the court below is correct to hold that the evidence of the Appellants’ witnesses who testified as agents lacked probative value on the ground that it did not comply with the provisions of Section 43(1) of the Electoral Act and the |” Respondent’s Regulations and so failed to prove their case.
Submissions similar to those made for the Is and 2d Respondents on the probative value of the evidence of the Appellants’ witnesses, are made and the cases of Yakubu v. Jauro Yel (2014) LPELR – 22732 (SC), and Abiodum
v. FRN, among others, are referred to. It is maintained that the evidence of PW26 is hearsay as he admitted during cross-examination that he was not
present when votes were sorted or counted, and reliance is placed on PDP v.
INEC (2022) 18 NWLR (pt. 1863) 653 in support of the position. The Learned Silk for the 3″‘ Respondent then referred to paragraphs 105 and 106
of the appellants’ petition on claim of over-voting wherein they claimed that they were not availed the voters register by the 1″ Respondent as ordered by the tribunal and so in computing the alleged over-voting, the Appellants did not use the Voters Register and cannot rely on the BVAS Report when they did not demonstrate at the trial to prove the claim of ouver-voting, as decided in Oyctola v. INEC (supra) and APC v. PDP (2020) 17 NWLR (pt.
1754) 425.
The court is urged to resolve the issue in favour of the 3″d Respondent.
Resolutions:
The complaint here is that the two (2) lower courts did not at all or properly asses, evaluate and ascribe deserved probative value or worth to the evidence adduced by the Appellants in proof of the allegations made in the petition.
As a reminder, the law is now common knowledge that the initial burden of proof of assertions of facts made in an election petition, and generally lies
and is on the petitioner or the person making the assertion/s to be discharged
by adducing sufficient, credible and admissible evidence that will establish or
prove the assertions made, by dint of sections 131, 132 and 133(1) of the Evidence Act (as stated earlier) and inter alia, Orlu v. Gogo-Abite (2010) 8
NWLR (pt. 1196) 307 (SC), Afolabi v. W.S.W. Ltd. (2012) 17 NWLR (pt.
1329) 286 (SC), Nagogo v. C.P.C. (2013) All FWLR (pt. 685) 272 (SCO, SC/CV/1130/2023
Igah v. Ikpeazu (2017) 17 NWLR (pt. 1594) 299 (SC), Lawson v.
Okoronkwo (2019) 3 NWLR (pt. 1658) 66 (SC. The law is also known that the primary judicial duty and obligation to appraise the facts asserted, assess and evaluâte the entire evidence adduced in proof of the assertions made, is that of and belongs to the trial or ” instance court before whom winesses appear to give direct account of the facts in the case presented before the
court. Omisore v. Arebgesola (supra), Busari v. State (2015) 5 NWIR (pt.
1452) 343 (SC), Okoh v. Nigerian Army (2018) 6, NWLR (pt. 1614) 176
(SC), Mil. Gov., Lagos State v. Adeyiga (2012) 5 NWLR (pt. 1293) 291
(SC), Kekong v. State (2017) 18 NWLR (pt. 1596) 108 (SC).
In an appeal on evaluation of evidence, such as the complaint of the
Appellants under this issue, the appellate court is to consider the following:-
• The evidence placed before the trial court,
• Whether evidence was accepted or rejected on correct perception,
• Whether the trial court correctly approached the assessment or
evaluation and place due probative value on the evidence accepted.
• Whether the trial court used and placed the evidence on the imaginary
scale to weigh the evidence, (e) Whether the trial court correctly appreciated to which side the scale tilted; having regard to the
• balance of probabilities.
• , burden of proof on preponderance or
• See Egonu v. Egonu (1978) 11-12 SC, 111, Agbonifo v. Aiwereoba (1988) l NWLR (pt. 70) 325 (SC), Anyakora v. Obiakor (2005) 5 NWLR (pt. 919)
• 507 (SC), Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) 362 (SC).
• In addition, an appellate court may only undertake evaluation or re-evaluation of evidence in the following situations:-
• 1) Where the findings of a trial court are clearly shown to be perverse
• and not supported by evidence;
• (ii) Where the findings arrived at are not a result of proper assessment
• or evaluation;
• (iii) Where the trial court did not properly use or utilize the opportunity
• of secing and hearing of witnesses;
• (iv) The findings are drawn from wrong conclusions from accepted facts
• and credible evidence; (v) Where a trial court had taken or considered erroneous view of the evidence before it; and
• (vi) Where the findings were made or reached
• as a result of wrong
• application of some principles of substantive law or procedure.
• Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (pt. 1559) 385 (SC), Hamza v. Kure (2010) 10 NWLR (pt. 1203) 630 (SC), Ali v. State
• (2015) 10 NWLR (pt.1466), | (SC), Eyibor v. Abia (2012) 16
• NWLR (pt. 1325) 51 (SC), D.M.V. Nig. Ltd. v. N.P.A. (2019) 1
• NWLR (pt. 1652) 163 (SC). –
• It is also “hornbook law” that where a trial court has duly and dutifully performed its primary duty of fully and properly evaluating the material evidence adduced before it in a case, an appellate court would not interfere with the evaluation for the purpose of substituting the findings by the trial
• court merely on the ground that the appellate court would have come to a different conclusion on some pieces or all of the evidence. Soleh Boneh
• Overseas Nig. Ltd. v. Ayodele ((1989) 1 NWLR (pt. 99) 549 (SC), Nnorodim
• v. Ezcani (2001) FWLR (pt. 40) 1696 (SC), Ishola v. U.B.N Ltd. (2006) All
• FWLR (pt. 256) 1202(SC), Eyiboh v. Abia (supra), Taiwo v. Ogundele SC/CV/1130/2023
• (2012) 15 NWLR (pt. 1322) 57 (SC), Sunday v. State (2018) 1 NWIR (pt.
• 1600) 251 (SC), MTN Nig. Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019)
• 9 NWLR (pt. 1678) 427 (SC).
• Flowing from the above principles of law, the duty to prove the allegation or assertion of failure to evaluate or improper evaluation of evidence by a trial court is on the party making the allegation. Atolagbe v. Shorun (1985) 1
• NWIR (pt. 2) 360 (pt. 337) 174 at 194 (SC), Nkebisi v. State (2010) 5
• NWLR (pt. 1188) 471 (SC).
• In the Appellants’ case, their complaint on the evaluation of evidence by the trial tribunal under this issue, is, primarily, on the alleged wrong rejection of the evidence of polling units agents and Ward collection agents on grounds
• that; inter alia;
• (a) they were not duly accredited by the 1″ Respondent as the Appellants’
• agents.
• (b)they were not duly accredited by the 1″ Respondent as the Appellants’
• agents.
• (c) they did not sign the results sheets.
•
• SC/CV/1130/2023
• (d)PW26’s evidence was hearsay evidence, etc.
• Now, the trial tribunal in its judgment, particularly at pages 2526 – 2529 of Vol. Ill of the Record of Appeal considered the evidence of these agents and found that they all gave the same evidence in their written statements on oath adopted by them at the trial, in a chorus and on the authority of Gundiri v.
• Nyako (supra) and Hashidu v. Goje (supra) ought not to be given any probative value. In addition, at pages 2529 – 2533 of the same Vol. Ill of the Record of Appeal, that these witnesses who testified as agents of the Appellants had admitted that they were not accredited as such agents by the 1″ Respondent in compliance with the provisions of Section 43(1) of the Electoral Act and Article 9 (a), (b), (c) and (d) of, the Regulations and Guidelines for conduct of Elections 2022 and so their evidence as such agents
• is worthless since it did not comply with the law.
• Notwithstanding these findings and rejection of the evidence of these agents witnesses, the tribunal went ahead to consider and evaluate the evidence of the witnesses one after the other at pages 2536 – 2541 of Vol. III of the
• Record of Appeal as follows:-

“SECTION 137 of the Alectoral Act 2022 which relates to the ground of non-compliance provides thus:
“137 it shall not be necessary for a party who alleges noncompliance with the provisions of this Act for the conduct of election to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”
As state earlier Polling Units and Word Collation Agents were called by the Petitioners, and documents were tendered and admitted. However, the witnesses are expected to relate their testimony to the documents tendered and show the link between the Two.
Abubkar v. INEC (2020) 12 NWLR (pt. 1737) 37.
The allegation of the Petitioners is that the results imputed in form
EC&A at the polling unit level were wrongly filled in the form
EC8B word results but no evidence was led in furtherance of their allegation of the Petitioners. No witness was called to testify on the result in the final collation.
The Petitioners called witnesses in Udenu Local Government Area Word 5 in units 001, 002, 008, 012; Word 6 units 007 and 010.
While they did not call any polling unit agent or voter in respect of Udenu Local Government Area Word 1 (one) as alleged in polling units 002, 003, 012, 014, 017, 020, 022, 023, 024 and 025. It is trite that the proof in cases of this nature must be rendered polling unit by polling unit and word by word.
Ucha v. Elechi (2012) LPELR 8429 (CA)
No witness was called to prove the allegation in Igbo Eze Local Government Area in respect of Umuozzi ix; polling units 003 and
007. In addition the Petitioners did not call any witness to prove their case in 15 (fifteen) polling units. They shall therefore be deemed abandoned along with all the documents tendered and admitted in evidence.
PIS collection agent testified in respect of Amagu Hall code 002 of Obollo Etiti Registration Area Code 05 of Udenu Local Government Area and identified in line with his paragraph 12, Exhibit EPT01/5 (a) and (g). Exhibit EPT01/05 he referred to is not in relation to the election in Amagu Hall but Umuoleyi with. We so hold.
Primary School. His evidence therefore shall be discountenance
PWo identified Exhibits EPT01/S (d) and (g). The score of Labour Party in Exhibit EPT01/SD is 49 while that to PDP is 33. Whereas in Exhibit EPT01/S (g) it is recorded as Labour 33 and PDP 49.
This is sustained. And the votes shall be reverted and recorded as PDP 33 and Labour Party 49.
PW7 testified in respect of Amoda village square code 0017. He did not identify or tender any result sheets).
PW8
_identified Exhibit EPT01/5(0) and (g).
These exhibits
confirmed that the 6 (six) votes of labour Party in Exhibit EPOI/SP and 5 (five) votes for PDP were recorded in Exhibit EPTO1/5g No 2 as 5 (five) for Labour Party. This is upheld and it shall now read Labour 6(six) votes and PDP 5 (five) votes.
PW20 identified Exhibit EPT01/35(c) (iv) and 35 (d). The exhibits show that Labour scored 81 (Eighty-one) votes and PDP scored 53 (Fifty-three), in
Exhibit EPTOI/SC (iv) while in Exhibit
EPT01/35 it read to Labour 53 (Fifty-three) and PDP 81. We hold that this is sustained.
PW21 identified Exhibit EPT01/35 (c) (iti) and 35 (g). The score of Labour Party in Exhibit 35C(iii) is 53 while that of PDP is 47 changed for Labour Party as 47 and PDP 53• in Exhibit 35(g).
This is sustained.
W22 testified in respect of Umuagali Ulo village and tendered Exhibit EPT01/38 (a) (b) (c) and (d) respectively. The alterations and cancellation on Exhibit EPT01/38C are too conspicuous. The votes of PDP on this document can either be read as 111,138 or 148 though in word against same in written “thirty-eight”. This shall therefore not be reckoned with for the parties.
The other witnesses are the Ward Collation Agents. They are PW4, PW19, PW23 and PW24.
PW4 identified Exhibit EPT01/5 (a-g). This witness being a ward collation agent is not a proper witness to testify on Exhibits EPT01/5 (A-F) which are polling unit results. His evidence on these being hearsay shall therefore be discountenanced PW19
identified Exhibit EPT01/3S (1), (B), (C), (i-xii) and D.
polling unit agent.
This witness is not fit to testified on polling unit result not being a and shall therefore be discountenanced with.
His testimony on the polling unit is hearsay
PW23 tendered Exhibits EPT01/40 (B) (C) and (D). We hold that he cannot testify on Exhibit EPT/01 40(B) and (C) not being signatory to same. His evidence therefore goes to no issue.
PW24 tendered Exhibits EPT01/41 (a) (b) and (c). We hold that ugent.
he cannot testify on Exhibit EPTOl/41C not being a polling unit
The testimony of PW26 is not reliable in this case. His testimony was to the effect that he was the Party Chairman, and never served as an Agent in any of the polling units or wards but monitored the election. His testimony can at best be described as hearsay and not reliable. We so hold.
From the testimony of each of the witnesses in respect of this ground as reviewed above, the objections raised are sustained in respect of PW6, PW8, PW81 and PW21 only. The results of each of them shall now read as follows:-
LABOUR
PD

To demonstrate that these requirements are not optional or at the discretion of the person/s presenting or filing an election petition, the provisions in sub-paragraphs 6 and 7 stipulate that an election petition presented for Ming which is not accompanied by items listed in sub-paragraph (5), shall not be accepted for filing on the ground that it is defective for non-compliance with the mandatory prescriptions therein.

If the petition was accepted for filing and was filed, the tribunal or court is vested with the unfettered discretion to strike it out for being defective on ground of non-compliance.
The express and explicit requirement in the above provision is that the list of
witnesses and their written statements on oath on which a petitioner intends
to rely on in proof of the petition at the hearing, must accompany the petition at the time of presentation of the petition for filing, to the secretary of the election tribunal, or court. Failure or omission to comply with the requirements at the material time, as seen in the provisions, renders the petition defective and liable to be struck out.

However, due to the provisions in paragraph 14(1) and (2) (a) of the 1″ Schedule allowing amendment to an election petition before the expiration of SC/CV/1130/2023
the time limited for the presentation of an election petition under the provision of Sectior: 132 (7) of the Electoral Act, the courts have consistently held that the filing of witnesses written statements on oath after the expiration of such time constituted an amendment of the election petition which is not
permitted and renders such statements on oath incompetent and inadmissible in evidence, as demonstrated in the cases referred to earlier on the point. See
also Ojukwu v. Yar’Adua (2009) 12 NWLR (pt. 1154) 50, Yaki v. Bagudu
(2015) 18 NWLR (pt. 1491) 288.
In the premises of the extant position of the law, the two (2) lower courts are right in holding that the written statements on oath of the PW1, PW2, PW3
and PW30, who were subpoened witnesses, filed outside of or after the expiration of the time limited for the presentation of an election petition, are
invalid, incompetent and therefore inadmissible in evidence in the determination of the Appellants’ petition. The law is known that the courts;
trial or appellate, can only base their decision on legally admissible evidence
in a case and has the power to subsequently expunge any legally inadmissible
evidence admitted in evidence, anyhow. See Shanu v. Afribank, Plc (2002)
6 SC (pt. II) 135, (2002) 17 NWLR (pt. 795) 185, Shittu v. Fashawe (2005)7 SC (pt. I1) 107, Onochue v. Odogwu (2006) All FWLR (pt. 317) 544, Abubakar v. Chuks (2008) 2 MJSC, 190, Suberu v. State (2010) 8 NWLR (pt. 1197) 586, FRN v. Usman (2012) 3 MJSC (pt. 1) 25.
For that reason, the argument that the trial and lower court were wrong in the failure or omission to assess and evaluate the expunged evidence even though
their decisions are not final, flies in the face of the established principle of law stated and restated in these cases and so untenable. Since the expunged
evidence was clearly and manifestly inadmissible in law, it was no longer evidence which the trial tribunal and the court below had the judicial duty to
consider, assess and evaluate, in the circumstances of the Appellants’ petition, as it was not legal evidence before the courts. Ismail v. FRN (2020)
2 NWLR (pt. 1707) 85, Radiographers Reg. Bd, Nig. V. M. & HWUN (2021)
8 NWLR (pt. 1777) 149, Abubakar v. Joseph (2008) 13 NWLR (pt. 1104)
307, Nwaogu v. Atuma (2013) 11 NWIR (pt. 1364) 117.
In the above circumstances, the invitation by the Appellants to this court,
pursuant to Section 22 of the Supreme Court Act, to consider, assess and
evaluate, the expunged evidence is misplaced, unviable in law and bound to
be rejected since the court lacks the vires to do so.

SC/CV/1130/2023
Now, I turn to the curious invitation by the Appellants to the court to overrule the Obi v. INEC (supra) in the event that this court is of the opinion that
the arguments on the issue are “worthless” and affirms the decision therein.
The resolution of the issue against the Appellants is an emphatic and express affirmation of the decision in Obi v. INEC as an extant and binding authority on the issue, with finality. The resolution of the issue has effectively, effectually and completely “taken the, wind out of the sail” of the Appellants’ invitation for the court to over-rule the decision to render its consideration on
the merit, of no practical and useful purport in this appeal. All the same, it is indisputable that by the provisions of Order 6, Rule 5 (4) of the Supreme Court Rules and battalions of pronouncements by the court in respect thereof,
including the cases cited by the parties in their respective briefs of argument and set out earlier in this judgment, that it has the discretionary judicial authority and power, in appropriate and deserving situations and circumstances, to subsequently, either depart from or out rightly, over-rule a previous decision/s when invited and fully satisfied of the sincere and real need to do so. Although, this court is bound by its previous decision on the recognized principle of stare decisis for the purpose certainty and finality in

the law, see Order 8, Rule 16 of Supreme Court Rules, Uwemedimo v. Mobil Prod. Nig. Unitd. (2019) 12 NWLR (pt. 1685) 1, Jev v. Yortom (2015) 15 NWIR (pt. 1483) 484, Adebayo v. PDP (2013) All PWLR (pt. 615) 203, its consistent attitude is that it will not hesitate to review, depart from or over-
rule any previous decision when special, exceptional, cogent and substantial reasons are shown to exist to warrant the exercise of the judicial discretion to do so. However, it will neither be judicial nor a judicious exercise of the judicial discretion by the court at the instance of a party who loses an appeal on firmly established principles of law on the ground only that the law does
not favour him on the peculiar facts and circumstances of his case. Perhaps, I
should point out that the principle of law on the filing of written statements
on oath of subpoened witnesses stated in Oke v. Mimiko (supra) and affirmed
by the court in Obi v. INEC following Abubakar v. INEC (supra), has been
applied in election matters since then as an established principle of law known to all diligent and vigilant parties to an election petition proceedings without claims of its being “unjust, undesirable and occasioning miscarriage of justice” merely because it would allegedly, “inflict hardship and injustice” on an indolent and tardy party. This court, in the case of Okechukwu v.
Obiano (2020) 8 NWIR (pL. 1726) 276 al 310-311, had stated that-
“The peculiar nature of election petitions has been effirmed in several judicial decisions, including Orube r. NEC (1988) 5
NWLR (m. 94) 323 at p. 347 paras. F-G, wherein Uwais, ISC (as he then was, observed that:
importance to the well-being of a democratic society, are regarded with an aura that places them over and above the normal day to day transactions between individuals which gives rise do ordinary or general claims in court. As a matter of deliberate policy to enhance urgency, election pelitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute.”
Thus, clection petitions are regarded with an aura that places them over and above the normal day-to-day transactions, which give rise do ordinary and general claims in court – Orubu v. N.E.C. (supra).
One of the most important provisions in all the Laws relating to Election Petitions Tribunal is essentiality of time..
The essence
thereof is that as much as possible, such petitions should be given expeditions adjudication – see Balogun v. Odumosu (1999) 2
NWLR (pr. 592) 590 at p. 597 paras.
B-C, wherein Parts-
Acholonu, JCA (as he then was) stated:
“The issue of time to complete filing of all processes relating to hearing and determination of an election petition was uppermost in the mind of the legislation. The enactment stretches itself further afield to do away with tardiness and waste of time and endeavoured to constrict the time of doing a particular act within a time frame-work. In other words, it is the intention of the legislators that parties stick strictly to the times stated in the Decree. The court could not aid anyone, who decides to sleep only to wake up then it is too late.” SC.”
See also Hassan v. Aliyu & Ors. (2010) 17 NWLR (pt. 1223) 547
The law also remains that statutory provisions apply in a case even if the application results in some hardship or is otherwise oncrous.
The conditions or situations that would justify the review, departure from or over-ruling a previous decision by this court are now settled by the numerous pronouncements by the court in the cases in which it was invited to do so.
Sec, for example, Bronik Motors Ltd. v. Wema Bank Ltd. (1983) NSCC, 226,
(1983) 1 SCNLR, 296, Rossek v. A.C.B. Ltd. (1993) 10 SCNJ, 36, (1993) 8 NWLR (pt. 312) 382, Adegoke Motors Ltd. v. Adesanya (1989) 5 SC, 113,
(1989) 3 NWLR (pt. 109) 250, Bakare v. Lagos State Civil Service Commission (1992) 10 SCNJ, 173, (1992) 8 NWLR (pt. 262) 641, ISA Ind.
Ltd. v. FRN, PIc (No.1) 12 NWRL) (pt. 1320) 326, SEC v. Okcke (2018) |2
NWLR (pt. 1634) 462, Abdulkadir v. Mohammed (2019) 12 NWLR (pt.
1674) 365; and the very recent case of Oli v. INEC (supra) wherein this court, in brief, restated the situations or circumstances in which it will review, set aside or even over-rule its previous decision, as follows:-
“This Supreme Court will respect its previous decisions as a court of last resort which is bound by its precedents. However, the court will not hesitate to overrule any decision of its own which was reached on wrong principles.
Thus, where it is shown or demonstrated that the carlier decision is either erroneous in law or was given per incuriam or that it has become an instrument of injustice, the Supreme Court may depart from previous decisions in subsequent cases.”
The Appellants have failed to convincingly demonstrate that any of such situations or circumstances exists in respect of the decision in Obi v. INEC to justify even a review, let alone sitting aside or over-ruling the decision which gives effect to and applies the extant mandatory, statutory requirements for the filing of election petitions in line with constitutional provisions and the Electoral Act time lines.
This regard, I endorse the statement by this Court in Omisore v. Aregbesola
(2015) LPELR-24803 (SC), cited at page 18 of the 1″ Respondent’s Brief, also reported in (2015) 15 NWLR (pt. 1482) 205, that:-
“Strictly, speaking, this sort of invidious provision should not feature in a user-friendly judicial process.
However, in the
peculiar circumstance of the urgency involved in the determination of such electoral disputes, the much this court can do is to wink at the tyranny of deadlines entrenched therein.”
In the result, I find not merit in the Appellants arguments on the issue and it is resolved against them.
Issue 2: Whether the court below was right in holding that the 2″d Respondent was qualified to contest or was not disqualified by the provisions SC/CV/1130/2023
of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) from contesting the Governorship Election held in Enugu State on the 18″.
March, 2023.
Appellants’ Submissions:
The Appellants’ submissions on issue I above, which have been found to be unmeritorious and the issue resolved against the Appellants are adopted under the issue and it is maintained that had the evidence of PW1, PW2, PW3
and PW30 been assessed by the court below, it would have found that the Appellants had proved that the 2″ Respondent presented a forged NYSC Certificate to the 1″ Respondent in contravention of the requirements of Section 182(1) of the Constitution.
It is further submitted that the court below erred in holding that the
Appellants did not prove the disqualification of the 2″d
respondent on the
ground that NYSC Certificate is not a qualifying factor under Section 177 of the Constitution, since in order to be demed qualified to contest for the position of a Governor, a person must meet the minimum qualification under
Section 177, as well as not being disqualified under Section 182 (1) of the Constitution. In other words, if a person is qualified under Section 177 of the SC/CV/1130/2023
of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) from contesting the Governorship Election held in Enugu State on the 18″.
March, 2023.
Appellants’ Submissions:
The Appellants’ submissions on issue I above, which have been found to be unmeritorious and the issue resolved against the Appellants are adopted under the issue and it is maintained that had the evidence of PW1, PW2, PW3
and PW30 been assessed by the court below, it would have found that the Appellants had proved that the 2″ Respondent presented a forged NYSC Certificate to the 1″ Respondent in contravention of the requirements of Section 182(1) of the Constitution.
It is further submitted that the court below erred in holding that the
Appellants did not prove the disqualification of the 2″d
respondent on the
ground that NYSC Certificate is not a qualifying factor under Section 177 of the Constitution, since in order to be demed qualified to contest for the position of a Governor, a person must meet the minimum qualification under
Section 177, as well as not being disqualified under Section 182 (1) of the Constitution. In other words, if a person is qualified under Section 177 of the. 2nd Respondent to the I” Respondent “in aid of his qualification, “was superfluous, which does not defeat the case of the Appellants as it was at best, unnecessary, relying on Jimi v. INEC (2022) 8 NWLR (pt. 1833) 585 at 595 (SC), Oloyode v. State (2021) 4 NWLR (pt. 1765) 144 at 160 (SC), Emoga v. State (1997) 9 NWLR (pt. 519) 25 at 39 (SC), Pali v. Abdu (2019)
5 NWLR (pt. 1665) 320 at 334 (SC), Jimoh v. Minister of FCT (2019) S NWLR (pt. 1365) 227 at 253 (SC) and Garan v. Olumu (2013) 11 NWLR (pt.
1365) 227 at 253 (SC). In addition, the cases of Oni v. Oyebanji (2023) 13
NWLR (pt. 1902) 507 at 543 (SC) and Tarzoor v. loraer (2016) 3 NWLR (pt.
–
1500) 463 at 498-499 (SC) on the interpretation of Sections 177 and 182 of the Constitution are cited in support of the argument that the interpretation by
the court below as wrong in that the sections do not cancel each other.
It is also the case of the Appellants that the definition of “Qualification” in Section 318 of the Constitution does not override the disqualifying factors in
section 182(1) O).
According to the learned Silk for the Appellants, citing paragraphs 24 – 35 of the Appellants’ petition, paragraphs 3, 4, and 12 of the 1″ Respondent’s Reply to the petition, paragraphs 11 and 15 of the 2″” Respondent’s Reply to the SC/CV/1130/2023
petition and paragraph 25 of the 3″‘ Respondent’s Reply to the petition, none of the Respondents denied that the 2″‘ Respondent presented the forged NYSC discharged Certificate to the I” Respondent. Maihaja v. Gaidam
(2018) 4 NWLR (pt. 1610) 454 at 489 (SC) was referred to on proof presentation of a forged certificate, which the Appellants were said to have discharged vide the evidence of PW1, PW2, PW3, PW26, and PW30.
The court is urged to resolve the issue in favor of the Appellant.
1″ Respondent’s Submissions:
It is submitted that the Appellants’ case in the petition was that the 2nd Respondent presented a forged NYSC certificate in aid of his qualification and so they have the burden to prove that:-
• The NYSC certificate was presented by the 2″‘ Respondent to the • Is Respondent in aid of his qualification and
• The NYSC is forged,
on the authority of Imam v. Sheriff (2004) LPELR-7315 (CA), Lado v.
Masari (2019) LPELR-55596 (SC), Abubakar v. INEC (2020) 12 NWLR (pt.
1737) 37 and Abubakar v. Yar’ Adua (2008) 19 NWLR (pt. 1120) 1.

The learned SAN for the 1″ Respondent then argued that the NYSC certificate is not a qualifying certificate and so cannot be presented in aid of the 2″d Respondent’s qualification and that the argument by the Appellants
before this court that the pleading “in aid of his qualification” is superfluous and that their case is not that the 2″‘ Respondent was not academically qualified to contest the election, but he presented a forged NYSC certificate to the 1″ Respondent which disqualified him from the contest, is a case
outside the pleadings, thereby constituting, approbation and re-probation at the same time which is not, by the authority in A. G. Rivers State v. A. G.
Akwa Ibom State & Anor. (2011) LPELR-633 (SC), and Ogombachi v.
Amadi & Ors. (2018) LPELR 45152 (SC). The case cited by the Appellants in support of the arguments are said not to assist the Appellants as they do not
relate to the point and it is further argued that a party will not be allowed to charge his case after issues were joined as stated in Onwuka v. Omogui
(1992) LPELR -2719 (SC), Adenuga v. Odumeru (2001) LPELR – 130 (SC),
(2009) 10 NWLR (pt. 1150) 553 and Osuji v. Ekeocha (2009) LPELR-2816 (SC), (2009) 16 NWLR (pt. 1166) 81. The Learned Silk then contends that Appellants at paragraph 4.14 of their brief agree that section 177(d) and SC/CV/1130/2023
section 182(1) (i) are distinct and pleadings on one cannot be the basis of proof of the other and the trial Tribunal was right to use section 318 of the Constitution in the interpretation of qualification under Section 177 (d).
It is his case that the Appellants did not prove the allegation under section 182(1) (i) as required by Section 136 of the Evidence Act with the evidence of PWl and PW2, being expunged which, in any case, was laced with hearsay, which is inadmissible, vide Kakih v. P.D.P (2014) 15 NWLR (pt.
1374) no page provided, (2014) LPELR-23277 (SC), Buhari v. Obasanjo
(2005) 9 SCNJ, I and Eghareva v. Osagic (2009) LPELR-1044 (SC).
2″‘ Respondent’s Submissions:
The learned SAN for the 2″‘ Respondent submits that the court below is right to have affirmed the decision of the trial tribunal that the 2″‘ Respondent was qualified to contest the Governorship election held on 18 March, 2023 in Enugu State as the Appellants’ case was based on the allegation that he presented a forged NYSC certificate to the 1″ Respondent in aid of his qualification to contest the election and entirely built on the evidence of
PWI, PW2 and PW3, which was expunged for being inadmissible by the trial SC/CV/1130/2023
tribunal, affirmed by the court below. Decisions of the tribunal and the court below are referred to on the effect of expunging the evidence of the said witnesses said to be unimpeachable in law and being concurrent decisions,
this court, on the authority of Kanawa v. INEC (2022) 1 NWLR (pt. 1812)
393 at 419-420, it prayed not to disturb.
Similar arguments are made on the validity of the witnesses depositions filed after the expiration of the time limited for the presentation of the clection
petition and the court below is said to be right to have followed the decision of this court in Oke v. Mimiko (supra).
In addition, that the allegation of forgery by the Appellant was not proved as required by the law, ic., beyond reasonable doubt, as stated in Alake v. State
(1991) 7 NWLR (pt. 205) 567 at 592 and Ogah v. Ikpeazu (2017) 17 NWLR (pt. 1594) 567, even if the allegation in the pleadings were not challenged by the Respondents; on the authority of ADC v. Obaseki (2022) 2 NWLR (pt.
1814) 273 at 319-320, Edevie v. Orohwedor (2023) 8 NWLR (pt. 1886) 219 at 285 and the decision in Appeal No. SC/CV/614/2023; Chief I.
Aghnoarianovwe v. PDP & 2 Ors. delivered on 7″ July, 2023.
The court is urged to resolve the issue in fovour of the Respondents. SC/CV/1130/2023
3′ Respondent’s Submissions:-
The issue is argued as 3′ Respondent’s Issue 3 and inter alia, similar arguments are made on the Appellants changing their case from the one presented in their pleading, which is not permitted in law as stated in PDP v.
INEC (2014) LPELR -23808 (SC) p53 and Andrew v. INEC. (2017) NWLR (pt. ) 4851 (SC) pp – 78 – 79 and it is further submitted that the expression
“in aid of qualification” used by the Appellants in their pleadings is a requirement of the law and hurdle which must be scaled before the alleged forged certificate can disqualify a candidate. The cases of Adeleke v:
Raheem (2019) LPELR – 48729 (CA) and Oyetola v. INEC (2023) 11
NWLR (pt. 1894) 125 are commended to the court on the qualification to
contest Governorship election under section 177 of the Constitution and it is contended that the 2″d Respondent being a candidate who had already
qualified by virtue of Section 177, he cannot be disqualified by virtue of a certificate he did not rely on and which was not in the nature of certificates, for the purpose of Sections 177, 182 and 318 of the Constitution, to be submitted to the 1″ Respondent.

The Appellants are also said to have failed to prove the allegation of forgery since they did produce two (2) certificates; one genuine and the other forged as required in APC v. PDP (2015) LPELR – 24587 (SC) 58 and the court is urged to resolved the issue in favour of the 3″‘ Respondent.
The Appellants’ Reply briefs to the 1″ Respondent Brief filed on the 14th December, 2023, to the 2″d Respondent’s Brief filed on the 13″ December, 2023 and to the 3″* Respondent’s Brief filed on the 11th October, 2023,
largely embarked on blanket response to every arguments canvassed by the Respondents on the issues argued in the Appellants’ brief as if all the arguments had raised new or fresh issues/points outside the ones argued in the Appellants’ brief as if all the arguments had raised new or fresh issues/points outside the ones argued in the Appellants’ brief to which they were responses. That is not the recognized purpose and use to which a Reply
brief in an appeal before this Court can be put by an Appellant, as stated and restated by the court in many decisions, inclidung Adisa v. Akande (2012) 15
NWLR (pt. 1324) 538 (SC), Abubakar v. Nasamu (No. 2) (2012) 17 NWLR (pt. 1330) 523 (SC), Oguanuhu v. Chiegboka (2013) All FWLR (pt. 703)
1925 (SC), Hussein v. Mohammed (2015) 3 NWLR (pt. 1445) 100 (SC), Brown v. State (2017) 4 NWLR (pt. 1556) 341 (SC), Ugo v. Ummuna (2018)
2 NWLR (pt. 1602) 102 (SC), Okoric v. State (2018) 11 NWLR (pt. 1629) | (SC), Okala v. Odah (2019) 9 NWLR (pt. 1678) 562 (SC). The only use and purpose of a Reply brief in an appeal, as the name clearly shows, that is permitted is for an Appellant to respond to reply to, or answer any new or fresh points raised by or arising out of the Respondents’ brief which
responded or reacted to the issues/points canvassed in the Appellants’ brief.
It cannot and should not be used to re-argue an appeal by way of responding or re-acting to every arguments contained in the Respondents’ brief
•
regardless of whether they raise new or fresh points different from the ones
canvassed in the appellants’ brief, which may warrant-answer/s. Repetition of or further arguments of issues/point already contained in an Appellants’
brief do not constitute a valid and competent Reply brief in an appeal which
the appellate court has the duty to countenance. That is the vice or defect
afflicting the three (3) Reply Briefs filed by the Appellants to the
Respondents’ Briefs mentioned before now, without exception, and they are
liable to be discountenanced. They are.
Resolution: SC/CV/1130/2023
Ground 1 upon which the Appellants’ petition was premised or based, was as follows:-
“i.
The 2″ Respondent was at the time of the election, not qualified to contest the election.”
In support of the ground, the Appellants provided the facts to be relied on and pleaded same in paragraphs 24 and 25 of the petition in the following terms.-
“24. The petitioners contend that the 2″ Respondent was, at the time of the election, not qualified to contest the dispuied election to the office of Governor of Enugu State, in that he presented a forged National Youth Service Corps. (NYSC) Certificate bearing Certificate Number: 4808297 to the I” Respondent in aid of his qualification.
25. The petitioners over that under the Constitution of the Federal Republic of Nigeria 1999 (as amended), the 2″‘ Respondent was disqualified from contesting the disputed election to the office of Governor of Enugu State held on 18 March, 2023, having presented a forged National. Youth Service Corps Certificate with Certificate number A808297 to the I” Respondent.”
These facts are plain, straightforward, unequivocal and very clear in language and purport which is simply that the 2″ Respondent is said not to be qualified, at the time of the election for the office of Governor of Enugu State conducted on the 18″ March, 2023, because he presented a forged NYSC
Certificate in aid of his qualification to contest the said election and so was
disqualified to contest the election. In the efforts to discharge the burden of
proof imposed by the law; (sections 131, 132, 133(1) and 135(1) and (2) of the Evidence Act, 2011) of the allegations which are both civil and SC/CV/1130/2023
in nature, the Appellants, pursuant to and in compliance with the provision of paragraph 4(5) of the 1″ Schedule to the Electoral Act; accompanied the petition with a list/names and written statements on oath of the witnesses they intended to rely on at the hearing of the petition, which appears at pages 79 – 80 of vol. I of the Record of Appeal. At No. 43 on the list, it was stated
“other witnesses that will be subpoened”.
The petition was dated the 5″‘ and presented before the trial tribunal for filing on the 6″ of April, 2023, as borned out at pages 76 and 38, respectively, of Vol. 1 of the Record of Appeal. It was because the Appellants are aware that the requirements in paragraph 4(5) of the 1″ Schedule to the Electoral Act are mandatory in their tenor that they had to accompany their petition with the list/names of witnesses and their written statements on oath at the time of
presenting the petition for filing before the trial tribunal in order to avoid the
consequence of its being defective and liable to be struck out by that tribunal
pursuant to the provisions in paragraph 4(6) and (7). As can easily be seen,
the provision of paragraph 4(5) (6) which requires that written statements on
oath of the witnesses to accompany a petition does not categorize or classify
the witnesses by nomenclature of being official or unofficial, subpoened or SC/CV/1130.2023
unsubpoened witnesses whose written statements on oath “shall” accompany the petition. The provision means what it plainly says: written statements of the witnesses a petitioner intends to call at the hearing of the petition which simply connotes “written statements of all the witnesses” he intends to call at the hearing regardless of any classification or categorization of either being subpoened or unsubpoened, or official or unofficial witnesses so long as they are witnesses the petitioner intends to call at his instance and discretion to give evidence at the hearing of his petition.
This was the position of this court in Oke v. Mimiko (supra) where it stated that:-
“There is no dichotomy between witnesses mentioned in paragraph 4(5) of the First Schedule to the Electoral Act in respect of witnesses statements on oath. of a subpoened witnesses.
There is no distinction between witness and subpoened witnesses under paragraph 4(5) of the First Schedule to the Electoral Act. In essence, paragraph 4(5) of the Electoral Act covers witness statement on oaths of all categories of witnesses the petitioner intend to call at the trial of his or her petition” (underline provided).
I have earlier under Issue I, found that the written statements on oath of the
witnesses whose evidence was expunged were filed outside of and after the
expiration of the time limited for the presentation of the petition and so they are invalid, incompetent and legally inadmissible in evidence and so rightly expunged.
In its judgment, subjcet of this appeal, the court below, in affirming the decision by the trial tribunal on proof of the ground I of the Appellants’ petition on 2″‘ Respondent’s qualification and disqualification, had held that:-
“The allegation of forgery against the 2” respondent is criminal in nature which requires proof beyond reasonable doubt. The burden of proof rests squarely on the appellant who alleged forgery. The Jw is trite that one of the best ways of proving forgery is to tender Official disclaimers from the institution which they party alleged to have forged the certificate claimed to have issued the certificate to him, see MAHALA VS. GAIDIAN (2017) 4 NWLR (PT. 1610)
454; DANTIYE VS. APC & ORS. (2021) 18 NWLR (PT. 1808) 381
AND APC VS. OBASEKI (2022) 2 NWLR (PT. 1814) 273.
Recently, the Supreme Court in the case of CHIEF IKIE AGHWARIANOVWE VS. PDP & 2 ORS. SC/CV/614/2023 (unreported) delivered on the 7″ of July, 2023 held that to succeed on the presentation of false/forged document to INEC, on such an allegation, he must prove that:-i.
The existence of a document in writing.
ії.
That the document or writing was forged.
il.
That the party who made it known that the document or writing was false; and
รง.
The party alleged the forged document to be acted as genuine.
Also in OYETOLA VS. INEC (2023) 11 NWLR (PT. 1894) 125, the Supreme Court Per Agim, JSC held that the basis evidence required to prove that a certificate is forged is a disclaimer from the institution that is said to have issued the certificate. Without evidence from the institution or body that is purported to have issued the certificate or other document stating that it did not issue the certificate or document or that any part of the certificate or document is not made by it, it would be idle and useless to contend that it is forged. The appellant in proof of the allegation relied on the testimony of
PWI, PW2 and PW3. While the 2″l and 3′ respondents relied on the testimony of DWI, DW2 and DW3, both parties tendered exhibits.
documents through these witnesses which were admitted as
However the evidence of PWI, PW2 and PW3, having been expunged with the exhibits tendered their evidence and the exhibits tendered no longer form part of the record to be relied upon.
Il goes without saying that no evidence was adduced to establish the allegation of forgery of the NYSC discharged certificate from the directorate of the National Youth Service Corps against the 2″d Respondent, which authenticity and validity remained intact. See Mohammed vs. Wamako (2018) 7 NWLR (pt. 1619) 573; 1.P.C. vs.
ELEBEKE (2022) 10 NWLR (PT. 1837) and A.P.C. vs. Obaseki
(2022) 2 NWLR (pt. 1814) 273.”
This position of the court below is unassailable since the basis of the allegation of disqualification of the 2″d Respondent under Section 182 (1) (*)
of the Constitution for presenting a forged NYSC certificate to the 15t Respondent in aid of his qualification was no longer available for the purpose
of proof of the allegation having been properly expunged as inadmissible
evidence. The evidence of PW1, PW2 and PW3, in particular, was the
foundation upon which the allegation was entirely predicated and in the
absence of such evidence, the allegation remains without any proof at all, let alone one beyond reasonable, as required by the law. The burden of proof lies squarely and firmly on a petitioner to prove every material allegations
made in his petition on the balance of probabilities or, as in this appeal, beyond reasonable doubt on the allegation of forgery of the NYSC certificate against the 2″‘ Respondent and until the burden is satisfactorily discharged,
the allegations would remain bare, liable to be dismissed for lack of proof.
A.C.N. v. Nyako (2015) 18 NWLR (pt. 1419) 352 (SC), Omisore v.
Aregbosola (2015) 15 NWLR (pt. 1482) 205 (SC), Salch v. Abah (2017) 12 NWLR (pt. 1578) 100 (SC) Ojukwu v. Yar’Adua (2009) 12 NWLR (pt.
1157) 50 (SC), Audu v. INEC (No.2) (2010) 13 NWLR (pt. 1212) 456, Eze
v. Okoloagu (2010) 3 NWLR (pt. 1180) 183, Nduul v. Wayo (2018) 16, NWLr (pt. 1646) 548 (SC), Abubakar v. INEC (2020) 12 NWLR (pt. 1737)
37 at 154.
That is the inevitable fate of the Appellants’ allegation of presentation of a forged NYSC Certificate by the 2″‘ Respondent to the 1″ Respondent in aid of his qualification to contest the election in question and both the trial Tribunal and the court below are right to have dismissed the allegations in
paragraphs 24 and 25 of the Appellants’ petition for lack of evidence to prove
same as required by the evidence law.
There is no merit in the Appellants’
arguments on the issue and it is resolved
against them. SC/CV/1130/2023
Issue 3:
Whether the lower court was right in affirming the trial Tribunal assessment of the evidence of the witnesses called by the Appellants and the documentary evidence tendered by them on the one hand; and the totality of the evidence called by the parties on the other hand.
Appellants’ Submissions:
The court below is said to have wrongly assessed the evidence called by the Appellants and the totality of the evidence of the witnesses and in affirming the decision of the trial Tribunal that Appellants witnesses; as polling units (P/U) agents and word collation agents, gave the same evidence, relying on Gundiri v. Nyako (2014) NWLR (pt. 1391) 211 and Hashidu v. Goje (2003)
15 NWLR (pt. 843) 352, which are said not to have laid down such universal principle. In any case, it is contended for the Appellants that each case would be determined on the facts presented and the witnesses in the case gave
different figures (votes affected) in support of the Appellants’ pleadings of
violating/wrong calculations or entries and so did not chorus on another on the vital aspect of the petition.
The case of Obasi v. Mikson Estab. Ind. Ltd. (2016) 16 NWLR (pt. 1539)
335 at 365 (SC) is cited for the submission and it is further argued that the court below also erred in affirming the decision of the tribunal that the Appellants’ witnesses’ evidence was, worthless on the ground that they were
not duly accredited agents of the Appellants, contrary to the Evidence Act, on the nature of acceptable evidence in judicial proceedings and which did not limit the competence of witnesses in clection petition, to only accredited
party agents. Abubakar v. INEC (supra), Ladoja v. Ajimobi (2016) 20 NWIR (pt. 1579) 87 at 159, Oyetola v. INBC (2023) 11 NWIR (pt. 1894)
125 at 177 and 193 (SC) and Akpoti v. INEC (2022) 9 NWLR (pt. 1836) 403 at 428 (SC) on the competence of only cyc witnesses to testify as to what
they saw at the polling units and it is’ submitted that there was no evidence that the Appellants’ witnesses were not eye witnesses and so competent to
give evidence of what they saw at the polling units. On the authority of Buhari v. INEC (2008) 19 NWLR (pt. 1120) 246 at 424 (SC), the witnesses are also said to be Appellants’ agents who identified their signatures on the result sheets and are competent under Sections 175, 126 and 256 of the
Evidence Act to give evidence.
In addition, it is argued that the Appellants had demonstrated the wrong calculations and entries in the Forms EC8 As and EC8 Bs tendered by them for the wards complained about in Obollo Bliti, Awala and Obollo Fike in Ndenu L. G. Area through the evidence of PW4 and PW22 who are competent witnesses, vide Omisore v. Aregbosola (supra). It is also the case of the Appellants that the court below was wrong to have affirmed the decision of the trial Tribunal that the Appellants did not call evidence in respect of 15 polling units to prove the allegations made in the petition on wrong collation of results and did not link the alleged wrong collation at the Ward level with the final declaration. According to the Appellants, they tendered Forms BC8 Cs, BC8 Ds and BC& Es which established the inaccurate entries of results that were at variance with what transpired at the
polling units and the lower courts should have utilized Section 137 of the
Electoral Act in respect of places where no oral evidence was called.
Reference was made to Nwobodo v. Onoh (1984) SCNLR, 1 at 34 and Uzodinma v. Ihedioha (supra) on whether polling units agents need to be
called on complaints about collation at Ward level and it is said that the Appellants also proved their allegation of over-voting by the BVAS
Accreditation Report (Exhibit EPT 01/19c) and evidence of PW9, PW 18,
Pw22 – PW29 which was not evaluated on the ground that they did not sign SC/CV/1 130/2023
the result sheets as accredited agents of the Appellants, even though they
were eye witnesses. The Appellants insist that having tendered the voter
registers, statement of results sheets and the BVAS Report, they had placed sufficient materials before the Tribunal to rely on to determine the question
of over-voting in line with the requirements in Oyctola v. INEC (supra) and Abubakar v. INEC (supra). The court is then called upon to re-compute the results, as was done by the court below in Ngige v. Obi (2006) LPELR –
12920 (CA) 141-142 and deduct the votes affected by over-voting in Enugu
East and Nkanu East Local Government Areas which would show that the
Appellants had a total votes of One Hundred and Fifty-Seven Thousand, Nine Hundred and Ninety-Seven (157,997) votes while the 2″* and 3″‘ Respondents had a total of One Hundred and Fifty-Two Thousand, Seven Hundred and
Seventy-Eight (152, 778) votes. That even if the deduction of votes by the Tribunal is upheld by this court, the 1″ Appellant will still be held to have won the election and the court is urged to resolve the issue in Appellants’ lavour.
1″ Respondent’s Submissions:

SC/CV/1130/2023
The submissions are that the Appellants called two (2) sets of witnesses;
PW9 – PWI& and PW25 and PW29, who chorused their evidence in exactly the same sequence of narration of events at the polling unit, different only in their chosen initials, names of Polling units and scores recorded at the units.
The evidence of PWS is said to be the same with that of PW6, PW7, PW8, PW20, PW21 and PW22, just as evidence of PW4, PW19, PW23 and PW24, which all are called parroting or parroted statements on which the court will place no iota of credibility on the authority of Guadiri v. Nyako (supra), Yahya v. Dankwambo (2016) LPELR-48364 (SC) and Maduabum v. Nwosu
(2010) 13 NWLR (pt. 1212) 623 at 656-757. As an example, PW6 and PW8 were said to have, under cross examination, confirmed that their statements
oath were written by their lawyers for them after stating the facts in Igbo
language in which it was translated to them, but adopted without a jurat since the witnesses admitted that they cannot read in English language. It is also submitted, relying on Oyetola v. INEC (supra), that since the Appellants did prove their case by calling credible evidence, Section 137 of the Electoral Act does not avail as it relates to evidence of non-compliance and since the reliefs claimed by the Appellants are declaratory, they must succeed on the strength of their own case.
CPC v. INEC (2011) 8 NWLR (pt. 1279) 493 at 438 is cited for the submission and the Appellants are said not to be entitled to any of the reliefs they sought, having regards to the evidence before the trial Tribunal.
2nd Respondents’ Submissions:
Findings by the trial tribunal and the court below on the issue of non-accreditation of Appellants’ witnesses by the l” Respondent were set out and it is submitted that they are right that the evidence of the said witnesses lacks credibility and probative value such this court will not interfere with them since they are not shown to be perverse, on the authority of Kareem v. State
(2021) 17 NWLR (pt. 1806) 503 at 536. It is pointed out that the Appellants’ witnesses had admitted, under cross-examination, that they were not duly accredited by the 1″ Respondent as polling unit or Ward agents of the Appellants and since the law requires proof of claims of falsification of votes by credible evidence of Polling unit agents, vide ANPP v. Usman (supra) and
Hashidu v. Goje (supra), the evidence of the witnesses who were not presented as, eye witnesses, but as INEC accredited agents, is not credible. SC/CV/1130/2023
The evidence of PW10, PW11, PW12 and PW14 was referred to and said to have admitted that no over-voting occurred at their respective polling units.
In the alternative, it is submitted that by the provisions of Section 51(3) and
(4) of the Electoral Act and paragraphs 62 and 82 of INEC Guidelines, where over-voting will alter the return made by the 1″ Respondent, the consequence
will be another poll; supplementary election, and not return as sought by the Appellants.
Other arguments on the issue are
similar to the ones made by the 1″
Respondent, adding that the Appellants have not appealed against the finding that they failed to called evidence in respect of 15 Polling units made by the
Tribunal and since they only called Nine (9) incompetent and unreliable witnesses in proof of falsification of results in 20 polling units, the arguments that they produced Two (2) sets of results have no legs to stand. It is also the case of the 2″ Respondent that the challenge by the Appellants on the
decision by the court below on the evidence of PW4 and PW26 does not arise from any ground of appeal, is incompetent and ought, on the authority of Olumolu v. Islamic Trust of Nigeria (1996) LPELR – 2626 (SC), to be discountenanced by the court and the court is urged to resolve the issue in favour of the Respondents.
Respondent’s Submissions:
The issue is argued as 3″‘ Respondent’s issue iv under which it is submitted that the court below is correct to hold that the evidence of the Appellants’ witnesses who testified as agents lacked probative value on the ground that it did not comply with the provisions of Section 43(1) of the Electoral Act and the |” Respondent’s Regulations and so failed to prove their case.
Submissions similar to those made for the Is and 2d Respondents on the probative value of the evidence of the Appellants’ witnesses, are made and the cases of Yakubu v. Jauro Yel (2014) LPELR – 22732 (SC), and Abiodum
v. FRN, among others, are referred to. It is maintained that the evidence of PW26 is hearsay as he admitted during cross-examination that he was not
present when votes were sorted or counted, and reliance is placed on PDP v.
INEC (2022) 18 NWLR (pt. 1863) 653 in support of the position. The Learned Silk for the 3″‘ Respondent then referred to paragraphs 105 and 106
of the appellants’ petition on claim of over-voting wherein they claimed that they were not availed the voters register by the 1″ Respondent as ordered by the tribunal and so in computing the alleged over-voting, the Appellants did not use the Voters Register and cannot rely on the BVAS Report when they did not demonstrate at the trial to prove the claim of ouver-voting, as decided in Oyctola v. INEC (supra) and APC v. PDP (2020) 17 NWLR (pt.
1754) 425.
The court is urged to resolve the issue in favour of the 3″d Respondent.
Resolutions:
The complaint here is that the two (2) lower courts did not at all or properly asses, evaluate and ascribe deserved probative value or worth to the evidence adduced by the Appellants in proof of the allegations made in the petition.
As a reminder, the law is now common knowledge that the initial burden of proof of assertions of facts made in an election petition, and generally lies
and is on the petitioner or the person making the assertion/s to be discharged
by adducing sufficient, credible and admissible evidence that will establish or
prove the assertions made, by dint of sections 131, 132 and 133(1) of the Evidence Act (as stated earlier) and inter alia, Orlu v. Gogo-Abite (2010) 8
NWLR (pt. 1196) 307 (SC), Afolabi v. W.S.W. Ltd. (2012) 17 NWLR (pt.
1329) 286 (SC), Nagogo v. C.P.C. (2013) All FWLR (pt. 685) 272 (SCO, SC/CV/1130/2023
Igah v. Ikpeazu (2017) 17 NWLR (pt. 1594) 299 (SC), Lawson v.
Okoronkwo (2019) 3 NWLR (pt. 1658) 66 (SC. The law is also known that the primary judicial duty and obligation to appraise the facts asserted, assess and evaluâte the entire evidence adduced in proof of the assertions made, is that of and belongs to the trial or ” instance court before whom winesses appear to give direct account of the facts in the case presented before the
court. Omisore v. Arebgesola (supra), Busari v. State (2015) 5 NWIR (pt.
1452) 343 (SC), Okoh v. Nigerian Army (2018) 6, NWLR (pt. 1614) 176
(SC), Mil. Gov., Lagos State v. Adeyiga (2012) 5 NWLR (pt. 1293) 291
(SC), Kekong v. State (2017) 18 NWLR (pt. 1596) 108 (SC).
In an appeal on evaluation of evidence, such as the complaint of the
Appellants under this issue, the appellate court is to consider the following:-
• The evidence placed before the trial court,
• Whether evidence was accepted or rejected on correct perception,
• Whether the trial court correctly approached the assessment or
evaluation and place due probative value on the evidence accepted.
• Whether the trial court used and placed the evidence on the imaginary
scale to weigh the evidence, (e) Whether the trial court correctly appreciated to which side the scale tilted; having regard to the
• balance of probabilities.
• , burden of proof on preponderance or
• See Egonu v. Egonu (1978) 11-12 SC, 111, Agbonifo v. Aiwereoba (1988) l NWLR (pt. 70) 325 (SC), Anyakora v. Obiakor (2005) 5 NWLR (pt. 919)
• 507 (SC), Nwokidu v. Okanu (2010) 3 NWLR (pt. 1181) 362 (SC).
• In addition, an appellate court may only undertake evaluation or re-evaluation of evidence in the following situations:-
• 1) Where the findings of a trial court are clearly shown to be perverse
• and not supported by evidence;
• (ii) Where the findings arrived at are not a result of proper assessment
• or evaluation;
• (iii) Where the trial court did not properly use or utilize the opportunity
• of secing and hearing of witnesses;
• (iv) The findings are drawn from wrong conclusions from accepted facts
• and credible evidence; (v) Where a trial court had taken or considered erroneous view of the evidence before it; and
• (vi) Where the findings were made or reached
• as a result of wrong
• application of some principles of substantive law or procedure.
• Okafor v. B.D.U., Jos Branch (2017) 5 NWLR (pt. 1559) 385 (SC), Hamza v. Kure (2010) 10 NWLR (pt. 1203) 630 (SC), Ali v. State
• (2015) 10 NWLR (pt.1466), | (SC), Eyibor v. Abia (2012) 16
• NWLR (pt. 1325) 51 (SC), D.M.V. Nig. Ltd. v. N.P.A. (2019) 1
• NWLR (pt. 1652) 163 (SC). –
• It is also “hornbook law” that where a trial court has duly and dutifully performed its primary duty of fully and properly evaluating the material evidence adduced before it in a case, an appellate court would not interfere with the evaluation for the purpose of substituting the findings by the trial
• court merely on the ground that the appellate court would have come to a different conclusion on some pieces or all of the evidence. Soleh Boneh
• Overseas Nig. Ltd. v. Ayodele ((1989) 1 NWLR (pt. 99) 549 (SC), Nnorodim
• v. Ezcani (2001) FWLR (pt. 40) 1696 (SC), Ishola v. U.B.N Ltd. (2006) All
• FWLR (pt. 256) 1202(SC), Eyiboh v. Abia (supra), Taiwo v. Ogundele SC/CV/1130/2023
• (2012) 15 NWLR (pt. 1322) 57 (SC), Sunday v. State (2018) 1 NWIR (pt.
• 1600) 251 (SC), MTN Nig. Comm. Ltd. v. Corporate Comm. Inv. Ltd. (2019)
• 9 NWLR (pt. 1678) 427 (SC).
• Flowing from the above principles of law, the duty to prove the allegation or assertion of failure to evaluate or improper evaluation of evidence by a trial court is on the party making the allegation. Atolagbe v. Shorun (1985) 1
• NWIR (pt. 2) 360 (pt. 337) 174 at 194 (SC), Nkebisi v. State (2010) 5
• NWLR (pt. 1188) 471 (SC).
• In the Appellants’ case, their complaint on the evaluation of evidence by the trial tribunal under this issue, is, primarily, on the alleged wrong rejection of the evidence of polling units agents and Ward collection agents on grounds
• that; inter alia;
• (a) they were not duly accredited by the 1″ Respondent as the Appellants’
• agents.
• (b)they were not duly accredited by the 1″ Respondent as the Appellants’
• agents.
• (c) they did not sign the results sheets.
•
• SC/CV/1130/2023
• (d)PW26’s evidence was hearsay evidence, etc.
• Now, the trial tribunal in its judgment, particularly at pages 2526 – 2529 of Vol. Ill of the Record of Appeal considered the evidence of these agents and found that they all gave the same evidence in their written statements on oath adopted by them at the trial, in a chorus and on the authority of Gundiri v.
• Nyako (supra) and Hashidu v. Goje (supra) ought not to be given any probative value. In addition, at pages 2529 – 2533 of the same Vol. Ill of the Record of Appeal, that these witnesses who testified as agents of the Appellants had admitted that they were not accredited as such agents by the 1″ Respondent in compliance with the provisions of Section 43(1) of the Electoral Act and Article 9 (a), (b), (c) and (d) of, the Regulations and Guidelines for conduct of Elections 2022 and so their evidence as such agents
• is worthless since it did not comply with the law.
• Notwithstanding these findings and rejection of the evidence of these agents witnesses, the tribunal went ahead to consider and evaluate the evidence of the witnesses one after the other at pages 2536 – 2541 of Vol. III of the
• Record of Appeal as follows:-

“SECTION 137 of the Alectoral Act 2022 which relates to the ground of non-compliance provides thus:
“137 it shall not be necessary for a party who alleges noncompliance with the provisions of this Act for the conduct of election to call oral evidence if originals or certified true copies manifestly disclose the non-compliance alleged.”
As state earlier Polling Units and Word Collation Agents were called by the Petitioners, and documents were tendered and admitted. However, the witnesses are expected to relate their testimony to the documents tendered and show the link between the Two.
Abubkar v. INEC (2020) 12 NWLR (pt. 1737) 37.
The allegation of the Petitioners is that the results imputed in form
EC&A at the polling unit level were wrongly filled in the form
EC8B word results but no evidence was led in furtherance of their allegation of the Petitioners. No witness was called to testify on the result in the final collation.
The Petitioners called witnesses in Udenu Local Government Area Word 5 in units 001, 002, 008, 012; Word 6 units 007 and 010.
While they did not call any polling unit agent or voter in respect of Udenu Local Government Area Word 1 (one) as alleged in polling units 002, 003, 012, 014, 017, 020, 022, 023, 024 and 025. It is trite that the proof in cases of this nature must be rendered polling unit by polling unit and word by word.
Ucha v. Elechi (2012) LPELR 8429 (CA)
No witness was called to prove the allegation in Igbo Eze Local Government Area in respect of Umuozzi ix; polling units 003 and
007. In addition the Petitioners did not call any witness to prove their case in 15 (fifteen) polling units. They shall therefore be deemed abandoned along with all the documents tendered and admitted in evidence.
PIS collection agent testified in respect of Amagu Hall code 002 of Obollo Etiti Registration Area Code 05 of Udenu Local Government Area and identified in line with his paragraph 12, Exhibit EPT01/5 (a) and (g). Exhibit EPT01/05 he referred to is not in relation to the election in Amagu Hall but Umuoleyi with. We so hold.
Primary School. His evidence therefore shall be discountenance
PWo identified Exhibits EPT01/S (d) and (g). The score of Labour Party in Exhibit EPT01/SD is 49 while that to PDP is 33. Whereas in Exhibit EPT01/S (g) it is recorded as Labour 33 and PDP 49.
This is sustained. And the votes shall be reverted and recorded as PDP 33 and Labour Party 49.
PW7 testified in respect of Amoda village square code 0017. He did not identify or tender any result sheets).
PW8
_identified Exhibit EPT01/5(0) and (g).
These exhibits
confirmed that the 6 (six) votes of labour Party in Exhibit EPOI/SP and 5 (five) votes for PDP were recorded in Exhibit EPTO1/5g No 2 as 5 (five) for Labour Party. This is upheld and it shall now read Labour 6(six) votes and PDP 5 (five) votes.
PW20 identified Exhibit EPT01/35(c) (iv) and 35 (d). The exhibits show that Labour scored 81 (Eighty-one) votes and PDP scored 53 (Fifty-three), in
Exhibit EPTOI/SC (iv) while in Exhibit
EPT01/35 it read to Labour 53 (Fifty-three) and PDP 81. We hold that this is sustained.
PW21 identified Exhibit EPT01/35 (c) (iti) and 35 (g). The score of Labour Party in Exhibit 35C(iii) is 53 while that of PDP is 47 changed for Labour Party as 47 and PDP 53• in Exhibit 35(g).
This is sustained.
W22 testified in respect of Umuagali Ulo village and tendered Exhibit EPT01/38 (a) (b) (c) and (d) respectively. The alterations and cancellation on Exhibit EPT01/38C are too conspicuous. The votes of PDP on this document can either be read as 111,138 or 148 though in word against same in written “thirty-eight”. This shall therefore not be reckoned with for the parties.
The other witnesses are the Ward Collation Agents. They are PW4, PW19, PW23 and PW24.
PW4 identified Exhibit EPT01/5 (a-g). This witness being a ward collation agent is not a proper witness to testify on Exhibits EPT01/5 (A-F) which are polling unit results. His evidence on these being hearsay shall therefore be discountenanced PW19
identified Exhibit EPT01/3S (1), (B), (C), (i-xii) and D.
polling unit agent.

This witness is not fit to testified on polling unit result not being a and shall therefore be discountenanced with.
His testimony on the polling unit is hearsay
PW23 tendered Exhibits EPT01/40 (B) (C) and (D). We hold that he cannot testify on Exhibit EPT/01 40(B) and (C) not being signatory to same. His evidence therefore goes to no issue.
PW24 tendered Exhibits EPT01/41 (a) (b) and (c). We hold that ugent.
he cannot testify on Exhibit EPTOl/41C not being a polling unit
The testimony of PW26 is not reliable in this case. His testimony was to the effect that he was the Party Chairman, and never served as an Agent in any of the polling units or wards but monitored the election. His testimony can at best be described as hearsay and not reliable. We so hold.
From the testimony of each of the witnesses in respect of this ground as reviewed above, the objections raised are sustained in respect of PW6, PW8, PW81 and PW21 only. The results of each of them shall now read as follows:-
LABOUR
PD
DIFFERENT
PARTY
P
PW 6
49
33
16
PW 8
6
5
1
PW/20
81
53
28
PW 21
53
47
6
In all there 51 (fifty-one) votes involved which shall be deducted from the result of the PDP and added to that of the Labour Party.
As stated earlier PDP scored 160,895 (One Hundred and Sixty Thousand; eight hundred and ninety-five thousand) from which the 51 (fifty-one) votes shall be deducted. That is 160,895 – 51 – 160,844 votes (One Hundred and Sixty thousand, eight hundred and forty-four thousand).
Having arrived at above, and with the outcome as 160,844 (One Hundred and Sixty Thousand, eight hundred and forty) votes, it is gleaning that the 2” Respondent still maintains the lead. The deduction has not significantly affected the scores of the parties. It is therefore the view of this Tribunal that considering the evidence of the Polling Unit Agents above the petitioners did not prove this leg of the Petition. The number of witnesses called is not widespread as to cover all the polling units the Petitioners are disputing and even those called were not able to prove the case of the Petitioners. The Petitioners having failed to prove that the zi Respondent was not elected by majority of lawful votes cast at the election this leg of the petition fails. In the circumstance this issue Is resolved petitioners.”
in favour of the Respondents and agents the
I should say without any difficulty that the above findings and conclusion by the trial tribunal which were affirmed by the court below at pages 3080 – 3088 of the Vol. Ill of the Record of Appeal, have not shown to be perverse or wrong in law by the Appellants in this appeal.

The Appellants have not disputed that the witnesses they listed and presented at the trial tribunal were presented as polling units and collation agents of the Appellants at the different stages in the process of the clection, but who admittedly were not duly accredited as such agents in line with the law by the 1″ Respondent for them to lawfully act and function’as such agents at the

election. Section 43 (1) of the Electoral Act provides that:-
“43. (1) Each political Party, in consultation with its candidate, may be notice in writing addressed to the Resident Electoral Commissioner of the State, appoint a polling agent for each polling unit and collation centre in the Local Government Area or Area Council for which it has candidate and the notice, which sets out the name, address and contact details of the polling agent, shall be accompanied by two passport photographs of each polling agent clectoral of is alive eif the polling foret wed he fiel to the
election.
Provided that no person who is serving as chairman or member of a Local Government Area or Are Council, Commissioner, Deputy Governor or Governor of a State, Minister of the Federal Government, or any other person holding elective or appointive political office under any tier of government and who has not resigned from his office at least three months prior to the said election shall serve as a polling unit or at any centre designated for collation of results of election.”
“58. (1) The Presiding Officer shall regulate the admission of votes to the polling unit and shall exclude all persons other than the candidates, polling agents, poll clerks and persons lawfully entitled to be admitted including accredited observers, and the Presiding Officer shall keep order and comply with the requirements of this Act at the polling unit.”
Paragraph 101 of the 1″ Respondent’s Regulations and Guidelines for the conduct of Elections, 2022 stipulates thus:-
“101. The following shall be allowed access to the electoral material distribution centres, Polling Units, Polling Stations and Collation Centres, provided that they are properly documented or identified:
(i)
Registered Voters (as polling units only)
(it)
Designated INEC Officials on Election Duty
(iti)
Approved and Designated Security Officials
(iv)
One Polling Agent per Political Party or candidate.
Candidates who choose to serve as their own agents should inform the Commission
in good time for proper
documentation and identification.
(v) Accredited Journalists and Media Organizations.
(vi) Accredited Domestic and Foreign Observers.
It is in order to safeguard the sanctity of the clection processes in Nigeria that the Electoral Act and the 1″ Respondent’s Regulations and Guidelines for the conduct of Elections make these provisions to control and manage the people who should lawfully be at venues for clections and collation of the resulls.
With the past experience of violence at polling units and collation centres during elections, where elections and collation of results were disrupted and destroyed by people who had no lawful and legal right to be at such venues at the material time, it would be dangerous and retrogressive to our democracy to allow every “Dick and Harry” to be physically present at our clection and collation of results venues without due, proper and lawful authorization prescribed by the law, so that he can be termed “an eye witness” for the purpose of election litigation and as a competent witness.
People who were presented as “polling units and collation Agents” witnesses by the Appellants and who were listed as such in the petition, but who were admittedly not duly accredited by the 1″ Respondent and who did not sign clection resuits as such agents, cannot rightly be said to be competent witnesses or made “eye witnesses” in an address of counsel.
In this view, I am not unaware of the provisions in Section 14 of the
Evidence Act on the admissibility of evidence obtained improperly or in contravention of a law, or in consequence of an impropriety, but like I pointed out, the undesirability of admitting such evidence in clection petition proceedings, which are sui generis and specifically regulated and governed
by special statutory cnactments (including the constitution) outweighs the desirability of its admission. I do not hesitate to say that both lower courts
are right in the decision not to accord any probative value to the evidence of such witnesses and endorse that decision.
In addition, it cannot seriously be disputed that the evidence of the witnesses is not only chorused, but it is from the same mouth (or pen since the
statements on oath were written) of a single person who wrote all of them; different only in the names chosen for the witnesses and the places indicated
against those name. Every material aspect of the written statements on oath
are not only identical, but exactly the same. The authority in Gundiri v.
Nyako (supra), Yakubu v. Jaurayel (supra), Osetola v. State (2012) 6 SC (pt. iv) 148, Ikeli v. Agber (2014) LPELR – 43838 (SC), all decisions of this court, renders such evidence suspect, unreliable and so of no probative worth or value in judicial proceedings.
The law is also elementary that hearsay evidence is no legal.evidence and is
inadmissible evidence which cannot ground a decision by a court or tribunal established by law pursuant to the provisions of Section 38 of the Evidence Act and among other cases, Buhari v, Obasanjo (supra), Yusuf v. Obasanjo
(2005) 18 NWLR (pt. 956) 96, A. G., Rivers State v. A. G. Akwa Ibom State
(2011) 8 NWLR (pt. 1246) 38 (SC), A.C.N. v. Nyako (2023) AlI FWLR (pt.
686) 424 (SC), John v. State (2017) 16 NWLR (pt. 1591) 304 (SC), Edosa v.
Ogiemwanre (2019) 8 NWLR (pt. 1673) 1 (SC). The evidence of PW26; the Appellants’ Enugu State, Chairman, who testified as State Collation Agent, was largely hearsay in respect of what happened at the Ward collation centres
since he was not physically present a those centres at the time of collation of results at those centres and only retold tales retorted to him by agents at the
centres.
Not being a spirit, but human, PW26, could not possibly and practically be physically present at all the Ward collation centres at the same time of the
collation of the result for him to be an eye witness who is competent to give
admissible evidence.
The trial tribunal and the court below are therefore right to have rejected his
evidence as hearsay evidence. SC/CV/1130/2023
The Appellants have also argued that the tribunal should have utilized the provision of Section 137 of the Electoral Act to determine the complaint of non-compliance made by them from the documents tendered even, even if the oral evidence of the witnesses was not called.
The provisions say 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 the originals or certified true copies manifestly disclose. The non-compliance alleged.”
These simple provisions are very clear in their purport and have been pronounced upon by this court in the recent decision in the case of Oyetola v.
INEC (supra), wherein it stated that the provision only apply on satisfaction of the condition imposed, therein; ie. “if the original or certified true copies” of documents admitted in evidence in a trial of a petition “manifestly disclose
the non-compliance alleged. It must also be pointed out that the manifest
disclosure of any non-compliance alleged must be demonstrated before the
tribunal or court, as the case may be, before advantage can be taken of the provisions or for the provisions to avail and become applicable by way of
proof of the non-compliance alleged. Depending on the nature of the noncompliance alleged, the demonstration has to be by way of an address and argument on the contents of the documents as part of the process of ascribing probative value to the documents, as provided for in paragraph 46(4) of the 1″ schedule to the Electoral Act. The address or argument should manifestly show or disclose, prima facie and on the balance of probabilities, the noncompliance alleged and complained of. The reason for that is that not all documents admitted in evidence on the allegation or complaint of non-
compliance with the Electoral Act would manifestly disclose, show any real and material non-compliance. In these premises, the provisions of Section 137 of the Electoral Act has not mitigated, done away with or relieved the burden of proof of allegations of non-compliance with the Electoral Act in the conduct an election in election petition proceedings. The decision in
Oyctola v. INEC (supra) has settled that position.
In the appellants’ case, there was no demonstration of the alleged noncompliance from the documentary evidence tendered by the discredited
witnesses called by the Appellants in proof thereof. One therefore would wonder how the trial tribunal was expected to embark, suo motu, on an
investigation of the non-compliance in order to find the prof for the
Appellants from the documents tendered. It is not part of the function and SC/CV/1130/2023
duty of the tribunal to embark on a private investigation in order to find evidence and determine the non-compliance alleged.
Tunji v. Bemidele (2012) 12 NWLR (pt. 1315) 477. The complaint of failure by the trial tribunal to utilize the provision of Section 137 of the Electoral Act is without legal basis and untenable.
Over all, the trial tribunal had substantially, adequately and properly evaluated all the material evidence adduced by the Appellants, on correct perception and appraisal of the facts pleaded by the Appellants and the court below rightly affirmed the findings made and the conclusions reached by the trial tribunal that the Appellants did not satisfactorily prove that the 2nd Respondent was not duly elected by the majority of the lawful votes at the Governorship election conducted on the 18h March, 2023 in Enugu State.
I find no justification to interfere with the evaluation of the evidence made by
the two (2) lower courts and so resolve the issue against the Appellants.
Issue 4: Whether the court below was right when it refused to strike out the separate briefs filed by the 2″d and 3″d Respondents and in striking out the
Appellants’ Reply briefs.

It is submitted that there is no law supporting the signing or endorsing two
(2) Briefs of Argument for different parties by one counsel and so, on the authority of the statement in Saraki v. Kotoye (1999) 8 NWLR (pt. 211) 638 at 647, approved in Dili v. Iwuro (1996) 4 NWLR (pt. 445) 622 at 630 (SC), the 2″d and 3” Respondents’ Briefs signed by the Learned SAN for the 3*l Respondent constitutes an abuse of court process as held by this court in Ademu v. Aiforce (2022) 5 NWLR (pt. 1822) 159 at 1,86 (SC). According to the learned silk for the Appellants, the intention of the 2d and 3*d Respondents who have a joint interest in the appeal before the court below and ought to have a joint single Brief of argument under Order 19, Rule 6 of the Court of Appeal Rules 2021, was to circumvent the provision of Paragraph 14(9) of the Election Judicial Proceedings Practice Directions,
2023 (EJDPD) which limit the number of pages permitted for a brief of argument to be filed by a party election appeals.
Reliance is placed on the decision of this Court in Appeal NO.
SC/CV/788/2023; U. G. Nnaji & Anor. v. M. P. Ndubuisi & 6 Ors. delivered on the 15 of September, 2023 in urging the court to set aside the decision by SC/CV/1130/2023
the court beiow as the said Respondents’ Briefs are invalid and ought not to have been used by the court below.
N.B.N. Ltd. v. D.P.B. Olatunde Co. Ltd. (1994) 3 NWLR (pt. 334) 512 at 528.
(SC) is cited on the statement that it is not permissible for a party to file two briefs and that it is an appellant that has the right to file a reply brief after a respondent’s brief.
On the Appellants’ Reply Briefs, it is contended that the court below wrongly struck out the Appellants’ Reply Briefs on the ground that they were re-arguments of the issues argued in the Appellants’ Briefs, which they are not and even when none of the Respondents raised the issue of the Respondents
raised the issue of the Replies being offensive.
The court below, was said to have raised the issue suo motu and decided it without affording the Appellants an opportunity to be heard on it and it would have come to a different conclusion if the Appellants were heard.
The court is urged to resolve the issue in Appellant’s favour.
1″ Respondent’s Submissions: Although, the Appellants did not challenge the I* Respondent’s Brief and so the 1″ Respondent is not and should not be concerned with the complaint by
the Appellants against the 2′
and 3″ Respondents” Briels, as an umpire in
the subject of the appeal, arguments are strenously carvassed in opposition to the issue. On this issue, the 1″ Respondent is a medilesome interloper who should not dabble in an issue that that does not affiect it.
The arguments canvassed in the f” Respondent Brief on the invalidity or otherwise of the 2″1 and 3* Respondents’ Briefs filed in court below are
misplaced and are discountenanced.
On the sticking out of the Appellants’ Reply Briefs, it is submitted for the 1″ Respondent that the Appellants did not show any part of the replies that meet the definition of a Reply brief as envisaged by the Court of Appeal Rules 2021 in Order 19, Rule S(1) and the decision of this court in Onwubuya v.
Ikegbuman (2019) LPELR-493973 (SC) Page 7 – 8.
2nd Respondent’s Submissions:
The issue is argued as 2″‘ Respondent’s issue I, and it is submitted that the court below is right to have held that the Appellants’ objcction to the 2nd Respondent’s Bricf was unnecessary and waste of judicial time. According to the learned silk for the 2″ Respondent, the objection is very unusual and strange since the 2″‘ Respondent’s Brief was not signed by the counsel who signed the 3″‘ Respondent’s Brief.
Reference was made to the finding of the court below on the objection at page 3044 of Vol. III of the Record of Appeal where it stated that :-
“It is not correct as the Appellants/Applicants senior counsel wants the court to believe that both the 2″ and 3′ Respondents’ brief (sic) were signed by the same Dr. Onyechi Ikpeazu, SAN.”
This finding, the Appellants are said not to have appealed against and are deemed to have accepted, vide Ecobank, Ple v. Anchorage Leisures Ltd.
(2018)18 NWLR (pt. 1651) 201 at 221.
Again, reference was made to the paragraph (I) of the particulars of ground i of the Notice of Appeal, which appears at page 3119 of Vol. III of the Record of Appeal where in the Appellants stated that:-
“の
At no time did the Appellants contend that both the 2″d and the 3′” Respondents’ Briefs of Arguments were signed by Dr.
Onyechi Ikpeazu, SAN, as wrongly found by the lower court.”
Again, the arguments by the Appellants at paragraph 5.73 of the Appellant’s Brief are cited to show the distortion of the issue wherein they said:-
“… Both the 2″d and 3′ Respondents’ Briefs of Argument were however endorsed by one Counsel: Dr. Onyechi Ikpeazu SAN
thereby rendering the two Briefs incompetent and an abuse of court process …
It is then submitted it is the objection by the Appellants that has no support in law; the Court of Appeal Rules or the EJPPD and so of no moment by the authority of Dicle v. Iwuno (supra) and Adamu v. Airforce (supra). The 2″d and 3″‘ Respondent’s briefs are said to be signed by two (2) different counsel
representing them and so there was no basis for the objection and further, that the unreported decision of this court in Nnaji v. Ndubuisi (supra) is not applicable since the 2″‘ and 3′ Respondents’ Briefs are separate briefs signed or endorsed filed each of them and not one filed a party.
The court is urged to resolve the issue in favour of the 2″‘ Respondent.
3″‘ Respondent’s Submissions:
It is pointed out that the Appellants’ petition was filed against the Respondents jointly and severally and that each of the 2d and 3rd
Respondents were separately served with it and they filed separate Replies to
the petition without complaint from the Appellants of joint interest between
Them.

Similar arguments are made on the competence of the 2nd and gua Respondents’ Briefs signed by different counsel representing them and it is submitted, in addition, that even if the 2″d and 3″‘ Respondents’ Briefs were not filed in the appeal, the Appellants were to sueceed on the strength of the arguments in the Appellants’ brief and not on the absence of the Respondents briefs, on the authority of, among other cases, Echere v. Ezike
(2006) LPELR – 1000 (SC) and Onyejckwe v. The Nigeria Police Council
(1996) 7 NWLR (pt. 463) 204 at 710.
On the striking out of the Appellants’ Reply Briefs, the same arguments as those made for the 2″d Respondent and it is submitted, on the authority .of Utih v. Onoyivwe (1991) LPELR-3436 (SC), that the need to invite parties for further address only arises when an issue not covered by their carlier addresses calls for decision or is raised by the court, suo motu.
Resolution:
The facts presented by the Appellants themselves in respect of the issue have pointedly disclosed that the objection is grossly misconceived. As shown above, in one breath, the Appellants in paragraph (f) of Ground I of the SC/CV/1130/2023
Notice of Appeal to this court, the Appellants had stated that at no time did they say or contend that the 2nd and 3″‘ Respondents’ Briefs were signed or endorsed by one counsel, only in another breath, al paragraph 5.73 of their briefs to say that:-
“Both the 2″ and 3′ Respondents’ briefs were however endorsed by one counsel: Dr. Onyechi Ikpeasu, SAN thereby rendering the Two Briefs in competent and an abuse of court process …”
Without the need to waste verbiage and invaluable judicial time and resource, it suffices to say that the bizarre objcétion by the Appellants in respect of ihe 2nd and 3’d Respondents’ Briefs which are apparently endorsed or signed by
different counsel separately representing them in the appeal before the court below, is not worthy of further consideration in this appeal.
On the court below striking out the Appellants’ Reply Briefs, this was the concise decision by that court: (as appeared at page 3088 of Vol. Ill of the Record of Appeal):-
“The Appellants’ reply briefs are discountenanced for re-arguing what has been canvassed in the main brief which is not the essence of a reply brief.”
I have perused the Appellants’ Reply briefs in the court below which appear at pages 2989 – 2993, 2994 – 2998 and 2999 – 3003, respectively of Vol. III. of the Record of Appeal and they are all mere re-arguments and further arguments of the issues canvassed by the Appellants in the Appellants’ Brief which is at pages 2878 – 1302 of the same Vol. of the Record of Appeal.
The same style used by the Appellants in re-arguments or further arguments of the issues/points argued in the main brief, of re-arguing all the points canvassed in the Respondents’ briefs, regardless of whether they are new or fresh issue/point raised by the Respondents which called for response or answer from the Appellants, is one adopted and employed by the Appellants in this appeal. I have earlier found that the style of the Appellants in arguing all the points; paragraph by paragraph of the Respondents briefs, is not envisaged by the Rules and practice and procedure in this court on the purpose of the Reply briefs. The appellants’ Replies in the court below were rightly discountenanced by it for being re-arguments and further arguments canvassed by the Appellants in their main brief of argument.
This issue is devoid of merit and it is resolved against the Appellants.
In the final result, with the resolution of all the issues canvassed by the Appellants in this appeal against them, the appeal is left without merit and bound to be dismissed. It is dismissed and accordingly, the decision by the court below delivered on the 10″ of November, 2023 is hereby affirmed in its
entirety.
I enter an order that parties bear their respective costs of prosecuting the appeal.

MOHAMME LARACARRA
JUSTICE, SUPREME COURT

APPEARANCES:
S. T. Hon. SAN, with Dr. V. J. O. Azinge, SAN, Chief A. C. Ejescime, SAN, E. Fatogun, SAN, and Mrs. R. Chris Garuba, Esq. for the Appellants.
Abdul Mohammed, SAN, with Sanusi Musa, SAN, R. Idris, Esq. O. F.
Amedu, Esq. and P. O. Amiukwu Esq. for the 2′ Respondent.
Chief, W. Olanipekun, SAN, with D. D. Dodo, SAN, I. A. J. Offiah, SAN, B. Olanipekun, SAN and B. Nwosu Esq. for the 1″ Respondent.
Dr. 0. Ikpaczu, SAN with A. Ali, SAN, T. Maduka, SAN, Dr. O. Onyias Esq. and J. Mba, Esq. for the 3″ Respondent.

This witness is not fit to testify on polling unit result not being a and shall therefore be discountenanced with.
His testimony on the polling unit is hearsay
PW23 tendered Exhibits EPT01/40 (B) (C) and (D). We hold that he cannot testify on Exhibit EPT/01 40(B) and (C) not being signatory to same. His evidence therefore goes to no issue.
PW24 tendered Exhibits EPT01/41 (a) (b) and (c). We hold that ugent.
he cannot testify on Exhibit EPTOl/41C not being a polling unit
The testimony of PW26 is not reliable in this case. His testimony was to the effect that he was the Party Chairman, and never served as an Agent in any of the polling units or wards but monitored the election. His testimony can at best be described as hearsay and not reliable. We so hold.
From the testimony of each of the witnesses in respect of this ground as reviewed above, the objections raised are sustained in respect of PW6, PW8, PW81 and PW21 only. The results of each of them shall now read as follows:-