Ikpeazu v Otti and Others (SC. 18/2016) [2016] NGSC 38 (25 February 2016)

REASONS FOR JUDGMENT
DELIVERED BY SULEIMAN GALADIMA, JSC
This court heard and allowed this Appeal SC. 18/2016 on the 3'd February, 2016. 1 promised to proffer reasons for doing so today, 26th February, 2016, today. My reasons are set out below.

This appeal is against the judgment of the Court of Appeal sitting in Owerri, in APPEAL No: CA/OW/EPT/6/2015 delivered on 31st December, 2015, wherein the court allowed the appeal of the 1st and 2nd Respondents (hereinafter referred to as the ["Respondents'). The Governorship Election Tribunal which sat in Umuahia, Abia State had on 3rd November, 2015 dismissed the petition filed by the 1st and 2nd Respondents in which they challenged the declaration of the Appellant as the winner of the Governorship Election conducted in Abia State on 11th and 25th April, 2015.
In a nutshell, the Appellant herein contested in the Gubernatorial Elections of 11th and 25th April, 2015, as the candidate of the 3rd Respondent, the Peoples Democratic Party (PDP). The 1st Respondent also participated in the same elections as the candidate of the 2nd Respondent the All Progressives Grand Alliance (APGA). At the end of the polls and collation of results, the 4th Respondent declared the Appellant the winner and returned him the duly elected Governor of

Abia State. The 1st and 2nd Respondents challenged the declaration of the Appellant herein as the winner of the said election at the Governorship Election Tribunal in
Umuahia, seeking some reliefs, praying as follows:-

" (i) That it may be determined and thus declared that the return of the 1st Respondent as Governor of Abia State pursuant to election held on 11th April and 25lh April, 2015 is void for substantial non-compliance with the provision of the Electoral Act 2010 (as amended) and which non. Compliance substantially affected the result of the election.

That it may be determined and thus declared that the 1st Respondent was not duly elected by majority of lawful votes cast and did not satisfy the mandatory constitutional threshold and spread across the local Government areas of Abia State at the Governorship election held in Abia State on 11th April, 2015.

That it may be determined and declared that the election and return of the 1st Respondent as Governor of Abia State is invalid by reason of corrupt practices and liable to be nullified; and further-
(iv) That it may be determined and thus declared that the 1st Petitioner won majority of lawful votes cast at the 11th and 2 5th April, 2015 election/supplementary election held in Abia State and satisfied the constitutional threshold and spread across the 17 Local Govt. Areas of the State; and ought to be and thus be ordered to be returned as the duly elected Governor of Abia State.
(v) In the alternative to prayer (iv), that it may be determined and thus declared that the elections in the Local Govs, Wards, Units and/ or Centers characterized by electoral irregularities and non-compliance during the conduct of the Abia State and satisfied the constitutional threshold and spread across the 17 Local Govt. Areas of the State; and ought to be and thus be ordered to be returned as the dulyelected Governor of Abia State.
(vi)   In the alternative to prayer [iv], that it may determined and thus declared that the elections in the Local Govts, Wards, Units, and/ or Centers characterized by electoral irregularities and non-compliance during the conduct of the Abia State Governorship Election held on 11th April, 2015 be voided and/or set aside and a fresh/supplementary election be conducted by 3rd Respondent in the affected polling units to ascertain the final scores of candidates at the election - that is in respect of:-

(a) The whole of Obingwa Local Government Area,
(b) The whole of Osisioma Local Government Area,
(c) The whole of Isiala Ngwa North Area,
(d) The 9 (nine) Polling Units 18,19, 20, 21, 22, 23,24, 25 and 26 Urban Ward, Afara-ukwu Ward 1, of Umuahia North Local Government Area, and
(e) The 82 Polling Units in Ward 1 of Ugwunagbo Local Government Area, Units, 1,2, 5,6; Ward 2 Units I, 3, 4, 5,6, 8; Ward 3 Units 2, 3, 4, 5, 6, 7, 8, 9,10, 11, 12; Ward 13, Units 1, 2, 3,4, 5, 6, 7,8, 9,10,11,13 and 16; Ward 5 Units 1, 2, 3, 4, 5, 6, 7, 8,9,10,11 and 12; Ward 6, Units 1, 2, 3,4, 5, 6, 8, 9 and 10; Ward 7 Polling Units 1,11,13 and 14; Ward 8 Polling Units 3 and 4; Ward 9 Polling Units 1, 2, 3,4,5, 6,7,8, 9,10,11 12,13,15; Ward 10 Polling Units 4, 5, 6, 7, 8 and 9"

The Tribunal in its considered judgment, dismissed the petition on diverse grounds, including but not limited to the fact that none of the criminal allegations contained in the petition was proved; that the petitioners, who were challenging the result of the election based on alleged over-voting did not rely on any Voters' Register of Form EC8A as mandatorily required under Section 49 of the Electoral Act, 2010 (as amended); that they merely relied on a Card Reader Report (Exhibit PWC 2), which in itself not only contradicts another Card Reader Report (Exhibit PWD) tendered by the same petitioners, but which also conflicts with the testimony of PW19; that all documents tendered by the petitioners were merely dumped on the Tribunal without more etc.

Dissatisfied, with the decision of the Tribunal, 1st and 2nd Respondents appealed to the Court below which reversed the decision of the Tribunal. The Appellant was not satisfied and has appealed to this Court. In the appellant's brief filed on 18th January, 2016 by his counsel CHIEF WOLE OLANIPEKUN SAN the 10 issues distilled for determinations of this appeal are as follows:-

"1.  Juxtaposing the fact that the Tribunal in its judgment righty held that the criminal allegations in the petition before it were not proven, vis-avis issue 9 formulated by the 1st and 2nd Respondents (as appellants), whether the lower court did not fall into serious error, not only in its failure to treat and resolve the said issue 9, but also going further to upturn the judgment of the Tribunal in the absence of the resolution of the said issue - Grounds 22 and 23.
2. Considering the reliefs specifically sought by the 1st and 2nd Respondents {first as petitioners before the Tribunal, and later as appellants before the lower court), vis-a-vis the judgment of the Tribunal and that of the lower court, whether the lower court did not fall into grave error, and also acted without jurisdiction by reversing the decision of the Tribunal on the said reliefs, and also granting the reliefs and consequential orders it so made. - Grounds 3, 5, 7, 20, 21, 24, 25 and 28.
3. Having rightly found that the State Returning Officer had no power to cancel elections, whether the lower court was not in error when it returned the 1st respondent as Governor of Abia State - Grounds 1, 12 and 13.
4. Whether the lower court was not wrong in solely relying on Exhibit PWC2 in voiding the election and return of the appellant on the allegation of over voting. — Grounds 10, 11, 16, 17, 18, 19 and 30.
5. Having regard to the judgment of the Tribunal which was based on the evidence adduced before it and appraisal of same (including the evidence of PW19 and PW20), vis - a- vis the fact that the lower court did not upturn the findings of the Tribunal on core areas of its judgment, whether the lower court did not fall into serious error by setting aside the judgment of the Tribunal - Grounds 6, 8,14,15, 26 and 29,
6, Having struck out Ground 28 of the 1st and 2nd Respondents' (as appellants) Grounds of Appeal, as well as issue 14 in their brief of argument, whether the lower did not fall into serious error and also acted without jurisdiction by still going ahead to treat the issue arising from the struck out ground, as well as the struck out issue - Grounds 9 and 27.
7. Having regard to the various reasons given by the Tribunal in striking out paragraphs 16, 21, 30(a) and 48 of the petition, whether the lower court was not in error in restoring the said paragraphs in a wholesale manner - Ground 4,
8. Whether the decision of the lower court is not altogether a nullity - Ground 2.

9. Whether the lower court was not in error to have adopted the 17 issues formulated by the appellants -Ground 31.
10. Considering the antecedents of the case before the lower court, including the oral and documentary evidence led at the Tribunal, whether the judgment of the lower court would not be set aside - Ground 32".

In the 1st and 2nd Respondents' brief of argument filed on 22nd January, 2016 by their counsel Chief Akin Olujinmi CON, SAN, the 8 Issues formulated for determination are as follows:-

"1. Whether in view of the Petitioners' case as shown by their pleading and evidence before the Tribunal, the Lower Court was not right in its decision on Respondent's Issue 9 at the lower court and concluding by upturning the Judgment of the Tribunal -Grounds 22 and 23.
2. Whether the Lower Tribunal was right in its decision on the reliefs claimed by the Petitioners at the Tribunal and granting the reliefs setting aside the election of the Appellant and declaring the 1st Respondent as winner of the election. Covers Grounds 3, 5, 7, 20, 21, 24, 25 and 28.
3. Whether the Lower Court rightly considered the Appeal before it on merit and rightly set aside the Judgment of the lower court and returned the 1st Respondent as Governor of Abia State. Grounds 1, 6, 8,10,11,12,13,14,15,16,17,18,19, 26, 29 and 30.
4. Whether the lower court was wrong in adopting the 17 Issues formulated by the appellants in disposing of the appeal before it. Ground 31.
5. Whether the Judgment of the lower court was not justified in view of the uncontradicted evidence led before the lower tribunal. Ground 32.
6. Whether the lower court was wrong in considering and resolving the 1st and 2nd Respondent's Issue 14 raised in the appeal before the lower court.
7. Whether on the materials on the records, the lower court was wrong in restoring paragraphs 16, 21, 30(a) and 48 of the petition which were wrongly struck out by the Tribunal.
8. Whether the decision of the lower court delivered on 31st December, 2015 was a nullity simply because the enrolment of the Judgment was dated 6the January, 2016 and that a copy of the Judgment was certified on 6^ January, 2016. - covers Ground 2.

It is noted that Appellant in response to the 1st and 2nd Respondents' (the respondents) brief, filed a reply brief on 27th January, 2016.

On 3rd February, 2016, when this appeal was heard the respective learned counsel, having identified their briefs, adopted and relied on the arguments proferred therein.

It should be pointed here that the Respondents in their paragraph 2.03 - 2.06, have challenged by way of a preliminary objection the competence of Ground 2 of the Appellant's Notice of Appeal and Issue 8 distilled therefrom. It is contended that Ground 2 of the Notice of Appeal simply states that the entire judgment of the lower court is a nullity and supplied particulars that are extraneous to the Record of Appeal. In paragraphs 11.4 of their brief and 3.1-3.2-3.6 and of their reply brief, the Appellant's senior counsel has argued strenuously that while the judgment of the lower court is dated 31/12/205, it was not certified until January 6, 2016 and that the signing of the enrolled and certification of the judgment on that date leads to the conclusion that the lower court disposed of appeal before it on January 6, 2016 and thus the lower court disposed of the matter 4 days outside the time mandated by the constitution.

Two points are discernible from the stance taken by the learned silk set out in the preliminary objections. The first point is whether the facts relied upon, that is the Appellant's letter of 2nd January, 2016 and the fact that certification was done on 6th January, 2016 and the enrolled order issued on 6th January, 2016 are not fresh evidence on appeal which requires leave of this court before they can be relied upon. Secondly, that whether this issue not being an appeal from a decision of the lower court is competent. On the first point, I agree with the Learned Senior Counsel for the Respondents that the facts the Appellant relied upon are fresh facts which the Respondents were unaware of and they had no opportunity to react or respond to. The fact that the Appellant could not obtain his copy of the Judgment until 6th January, 2016, does not mean that other parties did not get their own copies before that date. In the circumstance, such evidence has to be brought in vide the normal application to proffer or adduce further or fresh evidence on appeal. This is to enable the parties address and express their views and the court to rule on it. Appellant having not done this, this ground of appeal and the issue formulated thereon cannot be said to be competent, it must be dismissed and it is hereby dismissed.

The second point tilts in favour of the Respondents. It is whether the issue not being an appeal from a decision of the lower court is competent. The triteness of the law that the Grounds of Appeal must lie from a decision of the court below to this court has been laid to rest in a
litany of decisions of this court. Section 233 (2) of the 1999 Constitution (as amended) clearly provides for this thus:

" (2) An appeal shall lie from the decisions of the Court of Appeal to the Supreme Court as of right in the following case:-
(a)
(b)
(c)
(d)
(e) decisions on any question-
(i) whether any person has been validly elected to the Office of President, Vice-President, Governor and Deputy Governor under this Constitution".

The operative word in the foregoing provision is "decision". An Appeal is from decision of the lower court and not necessarily administrative actions of the Court Registry as shown here. My careful perusal of the particulars of the Ground of Appeal and the argument on the issue formulated therefrom are attacks against what the Registry of the lower court did after the judgment had been delivered. Therefore, the only decision the Appellant can appeal against is the decision of the lower court made by justices of that court and this has been rightly set out in other Grounds of Appeal of the Appellant. This Ground 2 is attacking the acts of certification, enrolment of order and availability of the judgment to the appellant before 6th January, 2016. I have not seen anything on record what the Justices who delivered the judgment being appeal against, did after delivery of the judgment. The Appellants letter of 2nd January, 2016 was addressed to the Registrar of the lower court and not to any of the Justices of the court below.

In view of the foregoing this preliminary objection is considered necessary and sustainable. It is allowed. A fortiori, and even for the stronger reason, the incompetent Appellant's Ground 2 and issue 8 are otiose and unworthy of consideration.

It is noted that the Appellant raised a total of 10 Issues, the 8th of which I struck out in the course of this judgment for being incompetent. The 1st and 2nd Respondents distilled a total of 8 Issues. However, in the circumstance and the totality of evidence elicited in the record of this court, I am of the firm view that the first 7 issues raised by the respective parties which are substantially the same, are apt and will adequately assist in the determination of this appeal. The remaining Appellant's peripheral issues 9 and 10 will be considered, very briefly, if necessary.

ISSUE 1 (1st and 2nd Respondents' issue i):
The Appellant formulated Issue 1 and Grounds 22 and 23 of the Notice of Appeal. From the words used, Ground 22 is basically complaining that the court below did not refer to the pleadings in the petition before resolving the issue on allegation of over-voting made by the petitioners (1st and 2nd Respondents herein). 1st and 2nd Respondents have contended that the only argument that the Appellant can canvass from this ground has to show basically what the petitioners pleaded to in relation to the over-voting and whether the court below made reference to those pleadings. That anything different is of no moment and should be discountenanced and that the Appellant cannot go outside his Grounds of Appeal. Reliance was placed on A.G RIVERS vs UDE (2006) 6 - 7 SC at 131.

Our attention has been drawn by the Learned Senior Counsel for the Appellant in his reply brief and rightly too, that throughout the "length and breadth" of the 1st and 2nd Respondents' Issue 1, they did not defend the decision of the court below that arguments on Issue 9 before that court were covered by the said Respondents' arguments under Issues 2 and 17 before the court below.

In view of the importance of the nature of the reliefs sought by the 1st and 2nd Respondents (as petitioners) vis-a-vis the decisions of the two lower courts, as well as the resolution of the issues raised for the determination of this appeal and ease of reference, these said reliefs have been produced extensively above. Careful scrutiny of petition of the respondents generally, before the trial Tribunal is a catalogue of criminal allegations characterized by ballot box snatching to unprecedented violence, fabricated and fraudulent entries in the electoral forms, and over-voting. These are serious criminal allegations which must be established, but none was so established. I refer to pp 5561 - 5562 of the record, where the trial Tribunal, after considering Issues (1) and (2) raised by the petitioners before it focused on the issue relating to the criminal allegation and stated as follows:-

"We shall consider the issue of criminal allegations made by the petitioners committed during the election in the form of violence, hijacking of electoral materials, intimidations, threat to life, corrupt practices, forgery and falsification and fabrication of results, highlighted and particularized in para. 30(a) (d),(f),(g); 32(d), (e); 37(d), (e), (f); 3888(d), (e), (f); 39, 41 of the petition."

Therefore, the trial Tribunal, after considering these criminal allegations considered the mandatory provisions of Section 139(1) (as amended) of the Evidence Act vis-a-vis proof of allegations in any criminal proceedings. It is at page 5562 of the record, the tribunal held that grave criminal allegations were made in the petition but were not proved beyond reasonable doubt; placing reliance on the decision of this court in OKECHUKWU v INEC (2014)17 NWLR (PT. 1436) 255 and NWOBODO v ONOM (1984) 1 SCN LT at p. 29: 1984 1 SC. (Reprint). That is the law. It has not changed. Where in an election petition, the petitioner makes an allegation of a crime against a Respondent and he makes the commission of the crime the basis of his petition, section 135(1) of the Evidence Act 2011 imposes strict burden on the said petitioner to prove the crime beyond reasonable doubt. If he fails to discharge the burden, his petition fails.

It was against the judgment of the Tribunal on the foregoing issue of the non-proving of criminal allegations, the 1st and 2nd Respondents (as petitioners) appealed to the court below. By their Grounds 14 and 15, they specifically challenged the findings. May it however, be noted that in their Issue 9, they raised before the court below the following: -

"Whether in the light of the pleadings, the evidence on record and the extant laws the learned Trial Judges of the Tribunal were not wrong in holding that the Appellants failed to prove the criminal allegations made in the pleading."

It is pertinent to state, that this issue was addressed by the respective parties in their briefs of argument before the court below. The lower court admitted this much but nevertheless, on page 5872 vol. 7 having set out the said Issue 9, held thus:-
"This issue deals with proof of criminal allegations made by the Appellants/Petitioners. The learned senior counsel for the Appellants addressed this issue in his submissions under issue (sic) 1 and 17 above. The Learned Senior Counsel for the 1st, 2nd and 3rd Respondents also addressed the issue while responding to the submissions of the learned senior counsel for the Appellants under the said Issue 2 and 17 already set out earlier above in this judgment. We are of the view that having considered and resolved Issues 2 and 17, the necessity of resolving Issue 9 is obviated."

Admittedly, Issue 9 was not resolved by the court below having considered and resolved Issues 2 and 17. I agree with the learned senior counsel for the Appellant; that the court below "went off-target". This is because Issue 2 deals with the Electoral Act, Approved Regulations and Manual of Election, while Issue 17 relates to who, as between 1st petitioner (1st respondent herein) and the Appellant in this appeal scored majority of lawful votes cast. Whither the nexus between Issue 9, on one hand, and Issues 2 and 17 (whether jointly or severally considered) on the other hand? Could it be that the court below completely misapprehended the case before it? It is suggestive, because the issue of proof of criminal allegation did not feature at all in petitioners' argument of Issues 2 and 17 in their brief at the court below as well as its resolution of the said issues: See pages 5600 - 5610 of the record to appreciate this point.

It is imperative for the court below to make a definite finding on the issue presented before it and to resolve same in one way or the other; bearing in mind the necessity of doing so this court has admonished the Court of Appeal, particularly as an intermediate court to pronounce on all issues arising or raised in an appeal before it, even if the appeal had been disposed of by only some of the core issue(s) for determination: See KATTO v CBN (1991) 9 NWLR (PT. 240) 126 at 149; OKONJI v NJOKANMA (1991) 7 NWLR (PT. 202) 131 at 150; CHUKWU v SONEN BONEN (2000) 2 SCNJ 18 at 38,

Issue 9 is central to this appeal. It has not been resolved. In the absence of not setting aside the judgment of the Tribunal to the effect that the diverse criminal allegations in the petition were not proved, then where is the jurisdiction and power of the court below to have set aside the judgment of the Trial Tribunal summarily. It is further noted in the submission of the learned counsel for the Appellant that the central issue of the failure of the petitioner to prove the criminal allegations made in the Respondents' petition was resolved against the petitioners by the Trial Tribunal, coupled with the fact that the judgment of the Tribunal on that issue has not been set aside, is binding on all parties in this case. Then the question for the umpteenth time is can the decision of the court below, summarily setting aside the judgment of the trial Tribunal still stand firmly. The judgment having not been set aside, is not only binding on all the parties concerned to obey, but to all the authorities charged with the responsibility for enforcement of such judgment. See SARAKI v KOTOYE (1992) 9 NWLR (Pt, 264) 156 at 184; ROSEK ACB LTD (19931 8 NWLR 12 (Ft. 312) 382 at 435. The jurisdiction of this court cannot be exercised in vacuum; it must be based on resolved issues before it. No binding decision of the lower court can arise without it being based on the resolution of all the issues raised before it, either for or against the parties. It is pertinent to note that the court below adopted all the issues formulated by the 1st and 2nd Respondents, as appellants before it, on the excuse that it did not want to miss any points; but at the end of it all, it omitted to resolve crucial and core points especially as set out in issue 9. If the court below had considered arguments on this issue it would have agreed with the trial tribunal that the allegations in the petition were not proved. Thus the court wrongly came to the conclusion that there was over-voting in the three Local Government Areas of Abia State, namely, Osisioma, Obingwa and Isiala Ngwa North. It held that the votes generated therefrom "were smeared and infested with illegality", yet it failed or neglected to resolve the issue submitted to it on the criminal allegation.  It also held, inter alia at page 5871 of the record thus:-

"Ordering of fresh election will arise only where a clear winner did not emerge after a deduction of the illegal votes",

I cannot fathom the soundness of this conclusion based on "illegal votes", without upturning the judgment of the Trial Tribunal that the criminal allegations in the petition were not proved. This decision is perverse. The finding of the court below was premised solely on accreditation. This necessitates a consideration of the complaints in the petition about it. For it was clearly stated in paragraph 30 (9) (page 12) of the record, that-

"Due to large scale violence which marred the elections on 11th April, 2015, in three Local Governments viz, Osisioma Isiala Ngwa North and Obingwa......      no valid accreditation and elections took place there..."

In paragraph 36(d) and (e); 37(d) and (e) and 38 of the petition in respect of the said three Local Government Areas the petitioner summarized their allegations to be that the entries into all electoral forms were "fictitious, fabricated and false" as a result of collusion between the appellant herein, his sponsoring political party and 4th Respondent herein, INEC. On page 186 of the record, PW20 in his witness statement paragraph 17, claimed that he recorded the cancellation of election results at the state collation centre on a video, which he failed to tender. He however quoted the SRO thus:-
"The rule of law of the Federation says that where election is marred by violence especially incontrovertible violence, the election results for that area may be cancelled, I hereby cancel the election result for the following Local Govt .Area:

Obingwa, Isiala Ngwa North, Osisioma....."
I agree with the Learned Senior Counsel for the Appellant that crime was inextricably woven with the allegation in the petition. The basis of alleged irregular accreditation is violence but as observed that has not been proved. The claim of over-voting could not have been succeeded without proof of forgery, fabrication etc. Where petitioners suffuse criminality with their pleadings, in a civil claim they are bound to prove same beyond reasonable doubt. See NWOBODO v ONOH (supra) and Section 135 Evidence Act (supra).

Finally on this issue it is pertinent to note that contrary to the submission of the Respondents (in paragraph 3.03) page 9 of the brief, that the court below considered all the paragraphs of the petition and the evidence led in making a conclusive finding of over-voting, the specific complaints of the 1st and 2nd Respondents on over-voting was in respect of only 25 polling units of Obingwa, Isiala Ngwa and Ugwunagbo Local Governments Areas. See paragraphs 37, 38 and 43 of their petition respectively. It is noted that they did not specifically make any complaints on over-voting in respect of polling units in Osisioma Local Government Area. I am of the view that the Respondents are wrong when they stated in their brief that the court below considered all pleadings and evidence to arrive at its judgment, when the said pleadings and evidence were not sufficient enough to prove over-voting in the entire of the three Local Government Areas of Osisioma, Obingwa and Isiala Ngwa North.

In the appellant's reply brief to the 1st and 2nd Respondents brief, his counsel has made an impressive conclusion of the summary of all the arguments and submissions on Issue 1. Notably to the effect that the Respondents have failed to disentangle the issue of over-voting from accreditation and accreditation from allegations of criminal acts as well as over-voting from criminality as pleaded. He submitted further and I agree with him that the Respondents have not given any justification for the fact that relief (iii) in the petition seeking for the nullification of the election and return of the Appellant, which the court below granted when the issue was expressly based on corrupt practices and that they did not prove any scintilla of corrupt practices. In law, therefore, they have conceded Appellant's argument that nullification of Appellant's Election and return as done by that court, was wrong, since the respondents specifically asked for such nullification on the basis of corrupt practices, which were not proved.

In the light of the foregoing, this issue is resolved in favour of the Appellant.

ISSUE TWO (1st and 2nd Respondents issue ii:
The Appellant formulated this issue on quite a number of Grounds of Appeal viz; 3, 5, 7, 20, 21, 24, 25 and 28 so also the Respondents. I have given a detailed glean through the judgment of the court below. I agree with the learned silk for the Appellant that court returned the 1st Respondent as the Governor of Abia State of Nigeria based on the voting of elections in the 3 Local Government Areas, namely Osisioma, Obingwa, and Isiala Ngwa North. See reliefs v (a), fb], (c) respectively reproduced above, from the introductory part of the appellant's brief. It is clear that not only were these 3 LGAs' specifically mentioned, but specific request was made for the voiding of election. In the same relief, not only was it further stated that the same was sought in the alternative of relief (iv), which prayed for 1st respondent to be returned as Governor of Abia State. It also specifically pleaded that nullification of result in those LGAs should be made in order for the conduct of "a fresh supplementary election*', to ascertain the final scores of candidates in the election. 1 agree that the court below went against the grain of the reliefs sought by the petitioners, turning itself to be Father Christmas, dishing out the reliefs not claimed. The court nullified the elections in 3 LGAs and returned the petitioners as winners of the election, when by their pleading relief (v) the petitioner, expressly agreed that it is only supplementary election that can ascertain the final scores of candidate. It was evident that the court below partly granted reliefs (v) and (iv) in the petition, when the reliefs were sought in the alternative. The court voided elections in the 3 LGAs as specifically prayed in relief (v) and returned 1st Respondent as Governor as specifically prayed in relief (iv). For the umpteenth time I hold that there was no relief for the return of the 1st Respondent as Governor in the event of the court voiding the said elections in the 3 LGAs. More particularly so, when the petitioners (as appellants) before the lower expressly abandoned the said relief (v) by failing to canvass any arguments thereon in respect of a request for a re-run election. That being so there was no basis for nullification of elections in the said 3 LGAs.

The implication of returning the 1st Respondent as Governor of Abia State is that the court below gave him more than he had prayed for. So it seems, because in returning him as the Governor after purportedly cancelling and excluding the results in the said 3 LGAs, the court below at page 5873 of the record allotted 164, 332 votes to the 1st Respondent and the Appellant 115, 444. In the effect, the lower court gave the 1st Respondent well over eight thousand votes more than they had expressly asked for. It is expected that before the lower court embarked upon this mathematical "additions and subtractions exercise, ex curiae and suo motu" as contended by the Appellant, he should have been afforded a hearing. In the process of these calculations the court below cancelled the elections in the said three Local Go