Emmanuel v Umana and Others (SC.1/2016) [2016] NGSC 46 (14 February 2016)

REASONS FOR JUDGEMENT

(DELIVERED BY CHIMA CENTUS NWEZE, JSC)

Upon hearing this appeal on February 3, 2016 I allowed it and undertook to adduce my reasons on Monday, February 15, 2016; that is, today. I shall, now, proceed to advance the reasons for my said decision.

On April 11, 2015, the fourth respondent in this appeal, Independent National Electoral Commission, [INEC, for short] conducted efection into the office of the Governor of Akwa Ibom State. The appellant in this appeal, Udom Gabriel Emmanuel, was the candidate of the Peoples Democratic Party, the third respondent herein (in this appeal to be, simply, designated as "PDP"). On the other hand, the first respondent, Umana Okon Umana, was the candidate of the second respondent, All Progressives Congress (hereinafter, simply, referred to as "APC"). Other political parties, equally, sponsored their candidates.

At the conclusion of the Polls, INEC declared the appellant the winner and, accordingly, returned him as having been, duly, elected. The first and second respondents, who were aggrieved by that declaration, approached the Governorship Election Tribunal (subsequently in this judgement to be, simply, referred to as "the trial Tribunal") with their Petition. The said Petition was woven around the following two Grounds in paragraph 15:

15 (i) The election was invalid by reason of corrupt practices and/or non-compliance with the provisions of the Electoral Act, 2010 (as amended);

15 (ii) The first respondent [that is, appellant in this appeal] was not duly elected by majority of lawful votes cast at the election

The reliefs were framed in these terms in paragraph 92 of the Petition:

(i) That it may be determined and thus determined and declared that the first respondent, Udom Gabriel Emmanuel, who was the candidate of the second respondent was not duly elected or returned by the majority of lawful votes cast at the Akwa Ibom State Governorship election held on Saturday, April 11, 2015;

(ii) That it may be determined and thus determined and declared that the said Governorship election of April 11, 2015 and the return of the first respondent, Udom Gabriel Emmanuel, by the third respondent are void/invalid by reason of corrupt practices, non-compliance with the provisions of the Electoral Act (as amended), violation and breaches of various provisions of the said Electoral Act, 2010, the IN EC Guidelines and Regulations for the Conduct of the 2015 Governorship Election and Manual;

(iii) That it may be determined and thus determined and declared that the first respondent, Udom Gabriel Emmanuel, did not score and could not have scored majority of lawful votes cast in at least two thirds of the thirty one Local Government Areas of Akwa Ibom State at the Governorship election held on April 11, 2015, and thus his return by the third respondent is unconstitutional, irregular, null and void and of no effect. [Italics supplied for emphasis]

Pleadings were, duly, settled and exchanged, whereupon the matter went to trial sequel to the consummation of the pre-trial proceedings. In a spirited attempt to prove their case, the

Petitioners marshalled a whopping number of fifty two witnesses. While the appeiiant called nineteen witnesses, four witnesses testified in defence of his party, PDP. The fourth and fifth

respondents, equally, called four witnesses. The trial Tribunal admitted three hundred and sixty exhibits.

In its judgement of October 21, 2015, [pages 3636 -3794 of Vol 4 of the records], the trial Tribunal nullified the results of the said ejection in eighteen out of the thirty one Local Government Areas (hereinafter, simply, referred to as "LGAs"] of the said State. Anchoring its reasoning on the premise that the voters in these LGAs were disenfranchised, it [the trial Tribunal] ordered re-run ejections there, [pages 3790 -3791, Vol 4 of the records]. It, however, upheld the election results in thirteen LGAs of the State. For its bearing on the appellants complaint against the judgement of the lower court in this appeal, I shall take the liberty to set out the relevant part of the trial Tribunal's reasons for dismissing the agitation of the Petitioner before it. At pages 3790 -3791 of Vol 4, it proceeded thus:

Clearly the election in the nine Local Governments...together with the eleven Local Governments mentioned had challenge of credibility. Out of these eleven Local Governments, Ibesikpo Asutan and Uyo were earlier mentioned to have witnessed non-credble elections. Therefore those two Local Governments are taken out in the computation It means in simple arithmetical calculation that Local Governments where thousands of voters indicated to vote and were disenfranchised were eleven...

We are of the firm opinion that the results declared by INEC in these Local Governments be nullified and are hereby nullified. The question is whether the non-compliance is substantial enough to invalidate the entire election? The answer is in the PDP v .INEC of the Supreme Court tension in PDP v INEC and Ors [2014] 9-10 SCNJ 39 -10...

Therefore, INEC is ordered to conduct a re-run election in these Local Governments so as to enable those whose constitutional right were breached to exercise their right of franchise,...

[Italics supplied]

Disenchanted with the said trial Tribunal's order which nullified results in eighteen LGAs, the appellant impugned it at the Court of Appeal (subsequently, simply, referred to as "the lower court"), [Pages 3801 - 3846, Vol 4 of the record]. I pause here to observe that the first and second respondents did not file any Notice to contend that the judgement of the trial Tribunal be affirmed on grounds other than those contained in the above pages, that is, the order compelling INEC "to conduct a re-run election in these Local Governments so as to enable those whose constitutional right were breached to exercise their right of franchise.,:' [pages 3790 -3791 of Vol 4 of the records, [italics supplied].

The proximate impulsion to the appeal herein was the order of the lower court of December 18, 2015. In the said judgement, the lower court affirmed the trial Tribunal's order nullifying the appellant's election in eighteen LGAs and, in addition, ordered the nullification of the entire results of the governorship election of April 11, 2015 in Akwa Ibom State.

The appellant herein was dissatisfied with the outcome of his appeal; hence, his appeal to this court through his thirty-Grounds Notice of Appeal, [pages 5062 - 5098 of Vol 5 of the record]. He formulated four issues expressed thus:

ISSUES FOR DETERMINATION

(I) Whether the decision of the Court of Appeal affirming the judgement of the Tribunal that nullified the results of the election in eighteen LGAs of Akwa Ibom State and ordering rerun elections thereat on the ground that the voters in the said LGAs were disenfranchised is not perverse and in breach of the appellant's right to fair hearing and liable to be set aside by this Honourable court?

(II) Whether the Court of Appeal was right in holding that there was over-voting in the election and that the alleged over-voting justified the finding of the Tribunal in regard to purported disenfranchisement of voters and the consequent nullification of the results of the election in the eighteen LGAs?

(III) Whether the decision of the lower court affirming the nullification of the results in the eighteen LGAs is not perverse having regard to the fact that the Court relied heavily on legally inadmissible documentary evidence, the makers of which did not testify before the Tribunal?

(IV) Whether the Court of Appeal was right in holding that the 'beyond reasonable doubt' standard of proof enunciated and settled by this Honourable court, was not applicable to the criminal allegations made in the Petition, and/or by the first and second respondents?

On their part, the first and second respondents framed their four issues in the following phraseology:

(1) Whether the lower court was not right in affirming the decision of the trial Tribunal which nullified the Governorship election in eighteen LGAs of Akwa Ibom State pursuant to the oral and documentary evidence adduced?

(2) Whether the lower court was not right in specifically holding that there was over-voting which vitiated the election?

(3) Whether the documentary evidence in this case were not admissible and properly relied on by the lower court?

(4) Whether the lower court was not right in holding that the trial Tribunal was in order by not applying standard of proof beyond reasonable doubt in this case?

The other respondents did not file briefs of arguments and, hence, did not formulate any issues for determination. In the determination of the merit of the appellant's complaint against the judgement of the lower court, I shall adopt the four issues which he formulated. After all, it is his appeal. However, since the first and third issues are woven around the complaint of the perversity of the findings of the lower courts, they will be dealt with together in the new two-pronged issue one.

As would be evident anon, the reasoning of the lower court, [pages 35 -38 of the lower court's judgement; pages 5053 - 5056 of Vol 5 of the record], which prompted the complaint in the Ground of Appeal from which the appellant's fourth issue eventuated, is, remarkably, abstruse, if not, out rightly, tendentious. As such, I would attend to that issue [issue four], first, before reverting to the other issues seriatim. In this judgement, therefore, the appellant's fourth issue will be disposed of as issue one.

ARGUMENTS ON THE ISSUES

ISSUE ONE

(Appellant's original issue four)

Whether the Court of Appear was right in holding that the 'beyond reasonable doubt' standard of proof enunciated and settied by this Honourable court was not applicable to the criminal allegations made in the Petition, and/or by the first and second respondents?

At the hearing of this appeal on February 3, 2016, learned senior counsel for the appellant, D. D, Dodo, SAN, who with Paul Usoro, SAN, appeared with other counsel on the List, adopted the brief of argument filed on January 15, 2016 and the reply brief of January 27, 2016. He relied on them in urging the court to allow the appeal.

On this issue, the views of the lower court were quoted in extenso. Counsel wondered how the iower court could have advanced such views in the face of section 135 (1) of the Evidence Act, 2011: a section which prescribes the standard of proof beyond reasonable doubt where a Petitioner in an election Petition anchors his complaint on grounds which are criminal in nature.

He, further, impugned the lower court's conclusion that the trial Tribunal's failure to adopt the requisite standard of proof beyond reasonable doubt with regard to the Petitioner's allegations of corrupt practices did not occasion any injustice on the appellant. On the contrary, he maintained that the non-application of the said mandatory standard of proof was prejudicial and detracted from the fairness of the trial Tribunal's proceedings, CCCTCS Ltd v Ekpo [2008] 6 NWLR (pt 1083) 362, 398.

In his view, the lower court's reasoning embodied in its decision which upheld the nullification of election results in the said eighteen LGAs, directly, sprang from the erroneous standard of proof which it adopted. Above all, he derided the said judgement as perverse since the reasoning that yielded it was hinged on wrong principles of law, Chukwu v INEC and Ors[2014] 10 NWLR (pt 1415) 385, 416; Nobis-Etendu v INEC and Ors [2015] LPELR -25127 (SC).

CONTENTION OF THE FIRST AND SECOND RESPONDENTS

Chief Wole Olanipekun, SAN, who with Adeniyi Akintola, SAN; Soiomon Umoh, SAN; Dayo Akinlaja, SAN; Oladapo Olanipekun, SAN, and other counsel on the List, announced appearance for the first and second respondents, adopted the brief filed on January 22, 2016.

He submitted that the kernel of the decision of the lower court on this issue was that over-voting and similar allegations of noncompliance are species of civil allegations for which the standard of proof required is the balance of probabilities, citing Nwobodo v Onoh [1984] 1 SCNLR 1; Omoboriowo v Ajasin [1984] 1 SCNLR 108, 116 etc

Learned senior counsel contended that the appellant has not shown any part of the judgement of the trial Tribunal where it applied a wrong burden of proof.

As indicated above, learned senior counsel for the other respondents did not file briefs of argument.

In his reply, Dodo, SAN, for the appellant, drew attention to paragraphs 6.1 -6.5 of the Reply brief where it was pointed out that the lower court misapplied the burden of proving the allegations of "the electoral offences that culminated into over-voting since election petition is a species of civil suit and not a criminal one."

He, equally, canvassed the view that the lower court, wrongly, affirmed the decision of the trial Tribunal with regard to the purported mutilations and alterations of Forms EC8B and EC8C - allegations of crime which required proof beyond reasonable doubt contrary to the positions of the two lower courts. He maintained that the above misapplications of the burden of proof worked complete injustice against the appellant, pointing out that the lower court's finding that "there were mutilations to clean up over-voting" in one of the wards, [pages 5044 -5045, Vol 5 of the record], was not borne out of the record.

RESOLUTION OF THE ISSUE

Earlier in this judgement, I had observed that the reasoning of the lower court, [pages 35 -38 of its judgement; pages 5053 -5056 of Vol 5 of the record], which prompted the complaint in the Ground of Appeal from which the appellant's fourth issue eventuated, is, remarkably, abstruse, if not, out rightly, tendentious. I say so with profound respect to the distinguished Jurists of the lower court.

My Lords, first, permit me to invite attention to page 5052 of Volume 5 of the record where the said court, correctly, summed up the legal position in these words "where there are allegations of corrupt practices which are criminal in nature, the proof should be beyond reasonable doubt, see, Ucha v Bechi (sic,) [2012] 3 SC (pt 1) 26, 363; Aregbesola v Oyinloia (2011) 9 NWLR (pt 1253) 458; Omoboriowo v Ajasin [1984] 1 SCNLR 108, 152 -153," [italics suppiied for emphasis].

Having said that, it proceeded thus:

It is not in dispute that paragraphs 27, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 54, 61 (i -iv), 61 (x) (xi), 72 (ii), 26 -43, 76, 77, 78, 82, 83, 88 and particularly paragraph 15 (1) of the first and second respondents' Petition are based on allegations of violence, voter intimidation, hijacking and snatching of electoral materials, kidnapping, and others, which invariably plead allegation of corrupt practices which are criminal and ought to be proved beyond reasonable doubt [pages 5052 - 5053 of Vol 5 of the record, italics supplied for emphasis]

Although it found that the "Tribunal should not have set aside the provision of the law in proving corrupt practices on the standard of proof beyond doubt, [page 5053, italics supplied], it, nevertheless, relapsed into the same egregious error which it had accused the trial Tribunal of. Listen to this piece of curious reasoning:

To demand that a private entity prove the commission of a crime (and the personages actually responsible) beyond reasonable doubt, is tantamount to making the Law operate in denial of the limitations imposed on lawful private entities, against the possession 'and deployment of the sophisticated infrastructure needed for arrests, investigation, confiscation, legitimate violence etc.; in quests to unravel the thorough details of so-called crimes. This is a domain exclusive to the State and it is such exclusivity that makes it easier for the State to unravel and prove the commission of crimes beyond reasonable doubt..

[pages 5054 -5055 of Vol 5 of the record]

The lower court's authority for this prospective prescription on the lex ferenda [that is, the law as it ought to be] as opposed to the lex lata [that is, the law which is, currently, in force as interpreted by this court] is the opinion of a Lagos-based Lawyer, Akintayo Iwilade, "Required Proof for Criminal Allegations in Election Petitions: A Critique" in The Nation Newspaper of July 16, 2013 (available online at http://www.thenatfononlineng.net/required-proof-for-criminal-allegations...).

In one word, the lower court, relying on an opinion in a Newspaper article, purported to abrogate section 135 (1) of the Evidence Act, 2011 by judicial fiat. That section provides that:

135 (1): If the commission of a crime by a party to any Proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt

In my humble view, it is difficult to see how the lower court could have, legitimately, wished away the position of this court which, interpreting the above section, has maintained that a Petitioner who makes an allegation of the commission of a crime the basis of challenging the election of a candidate who was returned, must prove that allegation beyond reasonable

doubt, Buhari v Obasanjo [2005] SCNJ 1, 47; Nwobodo v Onoh [1984] 1 SCNLR 27 -28.

Now, as pointed out above, the lower court, correctly, found that the allegations of violence, voter intimidation, hijacking and snatching of electoral materials, kidnapping, and others, [in paragraphs 27, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 54, 61 (i -iv), 61 (x) (xi), 72 (ii), 26 -43, 76, 77, 78, 82, 83, 88 and particularly paragraph 15 (1) of the first and second respondent's Petition are criminal in nature and ought to be proved beyond reasonable doubt.

In all fairness, the said court was right when it held that "the [trial] Tribunal should not have set aside the provision of the law in proving corrupt practices on the standard of proof beyond reasonable doubt," [page 5053 of Vol 5 of the record]. What, however, I find most worrisome in the reasoning of the lower court is that, having found that the trial Tribunal, without any warrant whatsoever, purported to "set aside the provision of the law in proving corrupt practices on the standard of proof beyond reasonable doubt," it proceeded to endorse its [the Tribunal's] nullification of the appellant's election in the said eighteen LGAs. The simple truth is that, having failed to prove the allegations in the above paragraphs apropos the said eighteen LGAs, the Petitioners' claim in respect thereof should have been dismissed, Omoboriowo v Ajasin (1984) LPELR -2646 (SQ 13, E-G; Abubakar v Yar'Adua [2008] 19 NWLR (pt 1120) 1, 71.

The lower court's intriguing ratiocination at page 5053 of Vol 5 of the record must rankle jurisprudents schooled in the common law tradition. According to the court the "law is and still remains, that although election petitions have distinct or peculiar features of their own, they are still a brand of civil cases. Invariably, they are won or lost on the balance of probability or preponderance of evidence/' [italics supplied for emphasis].

With respect, this statement is, remarkably, imprecise and too open-ended. Although election petitions are species of civil cases that are sui generis, where allegations of crime form the fulcrum of the claim in them, the requisite standard is that of proof beyond reasonable doubt. I, most respectfully, exhume Sowemimo, JSC (as he then was, later GN) to address this issue. In Nwobodo v Onoh (1983) LPELR -8049 (SC) 6-7, F-A, His Lordship held that:

...all the allegations complained of are crimes, and although, under Electoral Act 1982, election petition is a peculiar type of civil proceedings the proof of a crime, requisite or burden of where alleged, is that provided under section 137(1) of the Evidence Act, that is proof beyond reasonable doubt. The onus of proof is therefore on the petitioner and this has not been discharged. Having so decided I hold at this stage that the petitioner has not proved all his relevant complaints beyond all reasonable doubt against any of the respondents.

Regrettably, while the Petitioners failed to prove their allegations, the lower courts still found in their favour contrary to the general rule of evidence that cases must be proved secundum allegata et probata. That cannot be correct for, as a logical corollary, the allegations [allegata] or averments which a party makes in his pleadings and the proof [probata] he adduces in their support must correspond. In other words, the proof must, at least, be sufficiently extensive to cover all the allegations of the party, GreenL Ev. 51; 3 R. S, 636. It cannot be otherwise for a pleading of averments in proof of which no evidence is offered, virtually, serves no useful purpose, Insurance Brokers v Atlantic Textile [1996] 9-10 SCNJ 171, 183; Housing Corporation v Emekwe [1995] 1 SCNJ 98, 133.

This is the rationale for the long line of authorities that averments in pleadings, which are unsupported by evidence, are unavailing to the pleader as they go to no issue, and so must be discountenanced, Odutoia v Papersack Nig Ltd [2006] 18 NWLR (pt 1012) 470 etc. The explanation is very simple. An averment in a pleading is not evidence and cannot be substituted for evidence. Such an averment does not, therefore, amount to proof unless it is admitted, Aake and Anor v Akun [2003] 14 NWLR (pt 840) 311; (2003) LPELR -72 (SC) 9, paragraph G; Ajuwon v Akanni and Ors [1993] 9 NWLR (pt 316) 182, 200; Magnusson v Koiki and Ors [1993] 9 NWLR (pt 317) 287.

Different considerations would have applied if the doctrine of severance of pleadings was in issue. This would have been so for the law has, long, been settled that where a Petitioner makes an allegation of crime in his pleadings but, nonetheless, can succeed in his claim without proving the crime it cannot be said that the alleged crime was in issue or directly in issue, Nwobodo v Onoh [1984] 75 NSCC 7, 76; Military Administrator of Imo State v Nwauwa [1997] 2 NWLR (pt 490) 675, 708; Omoboriowo v Ajasin [1984] 1 SCNLR 108, 152.

That was not the case at the trial Tribunal. The Petitioners failed to apply to the trial Tribunal for the special indulgence of the severance of their pleadings at the pre-hearing stage so as to afford the appellant [as respondent] the opportunity of taking steps to react accordingly. Their attempt to do so in their addresses was, therefore, futile. As this court held in Gundiri v Nyako [2014] 2 NWLR (pt 1391) 211, 284 -285 "...the final address of counsel is not the stage for an application for the indulgence of such magnitude sought by a party for the trial court to effect the severance that is needed. A more formal, well-defined application is called for..." [italics supplied]

On the contrary, they [the Petitioners], as the lower court indicated above, founded their complaint against the declaration of the appellant as winner in the said eighteen LGAs on sundry allegations of crime which they failed to prove but the lower court wished away on the ground that section 135 of the Evidence Act could be jettisoned for the standard of proof on the balance of probabilities. That is not correct.

Worse still, the conclusion of the lower court is not borne out by the records. As will be indicated anon, the trial Tribunal even found that the Petitioners did not succeed in proving, among other things, their allegations of multiple votes. In their futile attempt to establish these allegations, they had marshalled PW50, 51 and PW52 [witnesses I shall return to in the course of this judgement]. At page 3781 of Vol 4 of the record, it [the Tribunal] had this to say:

The high points of the evidence of PW50, 51 and PW52 is that none of them qualified to be properly so called as 'experts' capable of persuading the court to consider their evidence as experts as required by the Evidence Act. Our conclusion is premised on the wishy-washy and haphazard analysis they carried out They failed woefully to provide and demonstrate in the open court the criteria and vital features by which they arrived at their conclusion. The process and scientific procedure undertaken by the professional in respect of the 13, 258 ballot papers which they allegedly discovered to be multiple/duplicate votes as well as the 100, 833 ballot papers which they found not to be human thumbprints ought to have been demonstrated in evidence so that any other expert can get hold of those ballot papers and examine them with a view to verifying the validity of their conclusion...

...the Petitioners should have [tendered] those ballot papers which were actually examined by the so called experts and found to contain multiple thumbprints. Unfortunately, the Petitioners did not do so. They rather obtained all the ballot papers used in all the Local Government Areas in Akwa Ibom State and tendered them thus proving that election took place In Akwa Ibom State [page 3781 of Vol 4 of the record, italics supplied]

Against this background, what was then the justification for the trial Tribunal's nullification of the said results in the eighteen LGAs: a nullification the lower court affirmed on the ground that the "appellant [did not] suffer any injustice at all simply because the Tribunal failed to adopt the standard of proof beyond reasonable double...2 [page 5055 of Vol 5].

With profound respect, nothing could be farther from the truth. By applying the wrong principle of law, the findings of the lower courts cannot survive the charge of perversity. Even on this score alone, I endorse the arguments of senior counsel for the appellant.

As it is well-known, this court will, readily, upset concurrent findings of lower courts where there are exceptional circumstances, such as, where the findings are perverse; where there was a miscarriage of justice or where a principle of Law or procedure was not followed, Ogbu v. State [1992] 8 NWLR (pt. 295) 255; Igago v State [1999] 14 NWLR (pt. 637) 1; Adeyemi v The State [1991] 1 NWLR (pt. 170) 679; Adeyeye v The State (2013) LPELR -19913 (SC) 46; Akpabo v State [1994] 7 NWLR (pt 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt 362) 266. In all, I resolve this issue in favour of the appellant.

ISSUE TWO (a)

(Appellant's original issue one)

Whether the decision of the Court of Appeal affirming the judgement of the Tribunal that nullified the results of the election in eighteen LGAs of Akwa Ibom State and ordering rerun elections thereat on the ground that the voters in the said LGAs were disenfranchised is not perverse and in breach of the appellant's right to fair hearing and liable to be set aside by this Honourable court?

ARGUMENTS OF COUNSEL

Arguments on this issue were canvassed from pages 5 to 31 of the appellant's brief, [paragraphs 3.1 -3.2.17.2]. In these pages, counsel, first, set out the general principles on the disenfranchisement of voters as enunciated in several decisions of this court and proceeded to apply them to the decision of the trial Tribunal which nullified elections in the said eighteen LGAs, [pages 5 -31 of the brief and paragraph 3, 1 et sea of the Reply Brief]. In a nutshell, the submission here was that the lower court's decision affirming the trial Tribunal's nullification of the results of the election in the said eighteen LGAs on the grounds of the disenfranchisement of the voters was a perverse decision. The court was urged to intervene and set aside the lower court's judgement, accordingly.

Chief Wole Olanipekun, SAN, learned senior counsel for the first and second respondents' response to these lengthy submissions of the appellant are captured on paragraphs 4. 1 -4. 37, pages 7 -28 of the respondent's brief. The sum total of the arguments in these pages could be found in paragraph 4, 2, page 7 of the said brief.

The position of the distinguished senior counsel was that, contrary to the vehement position of the appellant, the judgement of the lower court does not qualify as a perverse decision. The basis for this contention was that the said court did not ignore facts or evidence. On the other hand, it utilised the facts and evidence on record in arriving at its said decision.

It was, further, pointed out that the said court did not misconceive the thrust of the case presented and did not embark on the consideration of irrelevant issues. In all, learned senior counsel maintained that the judgement of the lower court was "free of the viruses of a perverse decision.."

RESOLUTION OF THE ISSUE

My Lords, I snail take the liberty to disaggregate the categories of complaints in this issue. The first complaint is that, in nullifying elections in the said LGAs, the lower court relied on grounds other than those canvassed in the Grounds of Appeal,

For the economy of space, only some examples will be considered here. Dodo, SAN, contended that the view of the lower court that in Onna LGA "the revelations on Forms EC88 and EC8C that no agent signed Form EC8B... in Oniong West 111, Ward 12, Oniong East 111, Ward 12, Oniong East 111, Ward 09, Awa 111, Ward 03E" was an issue that did not arise from the appellant's Notice and Grounds of Appeal.

The same complaint was canvassed against the approach of the lower court's findings with respect to Oruk Anam; Uruan, Ikot Abasi and Etim Ekpo; Uyo; Ibeno; Oron; Udung Uko; Etinan; Ini; Nsit Ubium; Nsit Ibom; Ibesikpo Asutan; Ibiono Ibom; Nsit Atai; Ikon; and Eket LGAs, pages 7 -31, paragraphs 3.2.1 -3.2.17.1 of the brief. It was contended that, quite apart from not arising from the Grounds of Appeal, the lower court raised these issues suo motu and resolved them against the appellant without hearing from him. The question is; what, then, was the decision of the trial Tribunal which prompted the appellant's appeal to the lower court?

As indicated earlier in this judgement, in its judgement of October 21, 2015, the trial Tribunal nullified the results of the said election in eighteen out of the thirty one LGAs. It reasoned thus:

Clearly the election in the nine Local Governments.,.together with the eleven Local Governments mentioned had challenge of credibility. Out of these eleven Local Governments, Ibesikpo Asutan and Uyo were eariier mentioned to have witnessed non-credible elections. Therefore those two Local Governments are taken out in the computation. It means in simple arithmetical calculation that Local Governments where thousands of voters indicated to votes and were disenfranchised were eleven...

We are of the firm opinion that the results declared by INEC in these Local Governments be nullified and are hereby nullified. The question is whether the n