Okereke v Umahi and Others (SC. 1004/2015) [2016] NGSC 53 (4 February 2016)

 

 

 

(DELIVERED BY CHIMA CENTUS NWEZE, JSC)

This court heard and dismissed this appeal on January 27, 2016. It promised to proffer its reasons for doing so on Friday, February 5, 2016, that is, today. Its reasons are set out below.

The third respondent in this appeal, [Independent National Electoral Commission, IN EC, for short], conducted election into the office of the Governor of Ebonyi State on April 11, 2015. The appellant in this appeal, Edward Nkwegu Okereke, was sponsored by the Labour Party.

On his part, the first respondent, Nweze David Umahj, was the candidate of the second respondent, Peoples Democratic Party (hereinafter, simply, referred to as "PDP").

At the end of the poll, the third respondent declared the said Nweze David Umahi (first respondent herein) as the winner and the duly returned candidate for the said election. The said declaration was sequel to the third respondent's finding that he [the first respondent] scored the highest number of votes cast and, in addition, satisfied the constitutional requirements apropos the election to the office of the Governor of Ebonyi State.

Dissatisfied with the above declaration, the appellant and his party, the Labour Party, approached the Governorship Election Petition Tribunal (hereinafter, simply, called "the trial Tribunal") with their Petition in which they challenged the declaration and return of the first respondent as the Governor of Ebonyi State.

In passing, it may be noted here that, pursuant to its application, the trial Tribunal struck out the name of the Labour Party from the Petition; hence leaving the appellant as the sole Petitioner.

The appellant's Petition was predicated on the Grounds set out at page 4, Vol 1 of the record. They were framed thus:

(i) That the election of the first respondent, Nweze David Umahi, the person whose election is questioned, was invalid by reason of non-compliance with the provisions of the Electoral Act, 2010 (as amended) and the provisions of the Constitution of the Federal Republic;

(ii) That the said election was marred by various acts of corrupt practices and irregularities;

(iii) That the said Nweze David Umahi was not elected by the majority of the lawful votes cast at the Governorship election of Ebonyi State held on the 11th April, 2015.

For their bearing on the issues formulated by the appellant, the reliefs, which the appellant entreated from the trial Tribunal, are set out here in extenso, viz:

(1) A Declaration that the purported election and return of the first respondent as the winner of the Governorship election in Ebonyi State held on 11th April, 2015 was marred by widespread irregularities and substantial non-compliance with the Electoral Act, 2010 (as amended) and the INEC Guidelines for the conduct of Elections, 2015 and is ipso facto null and void;

(2) A Declaration that the discrepancies between the number of Electronic Card Reader accredited voters and the Form EC8A Result Sheets of accredited voters on polling unit basis In the 11th April, 2015 Governorship election in Ebonyi State constitute irregularities or failure that substantially affected the results of the election and that the affected results be nullified accordingly;

(3) A Declaration that the first respondent Nweze David Umahi was not duly elected by majority of lawful votes cast at the said Governorship election and did not receive 25% of votes cast in two-third of the thirteen Local Government Areas of Ebonyi State as required by the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended);

(4) An Order nullifying the purported election and return of the first respondent as the winner of the Governorship election for Ebonyi State held on 11th April, 2015;

(5) A Declaration that the first Petitioner was duly elected by majority of lawful and valid votes cast at the said Governorship election held on 11th April, 2015 in Ebonyi State;

(6) In alternative to relief 5 (supra), an order nullifying the entire Governorship election held in all the polling units in Ebonyi State on 11th April, 2015 and for fresh election to be conducted.

[Italics supplied for emphasis]

In proof of the averments in the Petition, the appellant [as Petitioner] marshalled eight witnesses. While the first respondent called one witness, only three witnesses testified in favour of the second respondent. On its part, the third respondent made do with the evidence of the sole witness who testified on its behalf.

At the conclusion of the case, the Tribunal (hereinafter referred to as "the trial Tribunal"), in its judgement of October 16, 2015, dismissed the said Petition. The appellant's appeal to the Court of Appeal, Enugu Division, having been dismissed by that court [which will, hereinafter be referred to as "the lower court"], he further approached this court through his Notice and Grounds of Appeal from which he formulated three issues.

Before turning to them, however, it would only be proper to dispose of the third respondent's preliminary objection.

THIRD RESPONDENT'S PRELIMINARY OBJECTION

At the hearing of this appeal on January 27, 2016, learned senior counsel for the third respondent, Dr Onyechi Ikpeazu, SAN, called attention to the preliminary objection in the brief, pages 2-4, thereof. The said objection was framed thus:

Take Notice that the third respondent objects to Grounds 5 and 6 of the appellant's Grounds of Appeal on the grounds following:

(i) Ground 5 does not arise from the judgement of the Court of Appeal as nowhere in the judgement did the Court of Appeal sustain the holding of the Tribunal to the effect that "the 2015 Guidelines and Regulations issued by the INEC cannot be said to be a subsidiary legislation as submitted by the appellant's counsel. Therefore, it is required to be pleaded and listed to be admissible."

(ii) With regard to Ground 6 of the Grounds of Appeal, Ground 6 does not arise from the judgement of the Court of Appeal as the court did not hold that the appellant's complaint of non-compliance was a voyage on academic exercise, or that there was no evidence of non-compliance with the Guidelines and Manual for the Election Officers. The initial complaint of the appellant centred on the contention that the Tribunal failed to consider his allegation of non -compliance with the Guidelines and Manual on the reason that it was not a subsidiary legislation, therefore, it ought to be pleaded in order to be admissible in evidence.

In arguing the first ground of the objection, Dr Onyechi Ikpeazu, SAIM, pointed out that it was, perhaps, in acknowledgement of the first Ground of the objection that the appellant failed to distil any issue from the said Ground 5. He cited Newswatch Communications Ltd v Atta [2000] 2 NWLR (pt 645) 592 and Ezeana v Okpara [2008] 3 SCM 50, 57 as authorities for his contention that a ground of appeal from which no issue is formulated is incompetent and ought to be struck out.

Chief U. N. Udechukwu, SAN, for the appellant's response was simple. The issue is purely academic because the appellant in his brief did not raise any issue from that ground; meaning that Ground 5 has been abandoned.

For once, counsel are ad idem on an issue in this appeal. Both of them are right in their respective views that, where no issue is formulated from a Ground of Appeal, it would be deemed abandoned. This is so trite that it does not warrant the citation of any authority; albeit, the cases on the point are many.

Only one or two of such cases will be cited here, Dada v Dosunmu [2006] 18 NWLR (pt 1010) 134; Idika v Erisi [1988] 2 NWLR (pt 780 563; Nkado v Obioma [1997] 5 NWLR (pt 503) 32; Animashaun v University College Hospital [1996] 10 NWLR (pt 472) 65; Kari v Ganaram [1997] 2 NWLR (pt 488) 380. In consequence, Ground 5, having been abandoned, is hereby struck out.

Turning to Ground 6, Dr Ikpeazu, SAN, pointed out that Ground 6 does not deal with the issue of evaluation of evidence or pleadings. On the other hand, he explained that the ground deals with the alleged finding that the appellant's complaint as to non-compliance was a voyage on academic exercise.

He cited several authorities for the view that where incompetent Grounds of Appeal are argued with other grounds, the court has a duty to strike out both the grounds and the issues, Honika Sawmill (Nig) Ltd v Hoff' [1994] 2 NWLR (pt 326) 252, 262; Nwadike v Ibekwe [1989] 4 NWLR (pt 67) 718.

On his part, Udechukwu, SAN, for the appellant, canvassed the view that Ground 6 (supra) complained that the lower court misdirected itself when it held that there was no evidence of non-compliance with the Guidelines and Manual (supra).

My Lords, this limb of the third respondent's objection needs not delay us here. From the findings of the lower court on page 207 [last paragraph] and lines 3-5 of page 210 of Volume 5 of the record, I entertain no doubt that though, inelegantly, phrased, the appellant's Ground 6 was a complaint against the lower court's findings that there was no evidence of non-compliance, as indicated above. Issue One, though imprecise and, indeed, verbose, actually, arose from that complaint.

Instructively, it is such circumstances, as shown above, that dictated and, indeed, underscore, the utility of the logic of the judicial prescription that an appellate court has the prerogative to reframe the issues where it is of the opinion that those formulated by counsel are not succinct provided that the issues so reframed are covered by the Grounds of Appeal as canvassed by the appellant.

These cases vindicate this position, D. P. C C Ltd v B. P. C Ltd [2008] 4 NWLR (pt 1077) 376, 396 -397; 418 - 419; Oloriode v. Oyebi [1984] 1 SCNLR 390; N.P.A, v. Panalpina World Transport (Nig,) Ltd. (1974) 1 NMLR 82; Fabiyi v. Adeniyi [2000] 6 NWLR (pt. 662) 532. I, therefore, dismiss this arm of the objection. In effect, the preliminary, only, succeeds in part; now, to the issues for determination.

ISSUES FOR DETERMINATION

As shown above, sequel to the lower court's dismissal of his appeal, the appellant, further, appealed to this court through his Notice and Grounds of Appeal from which he concreted three issues for this court's resolution of his grievance against the judgement of the lower court. His said three issues were framed thus:

1. Whether the finding by the Court of Appeal below that the trial Tribunal duly and properly considered and evaluated the pleadings and evidence pertaining to breach of the provisions of the Guidelines and the Manual for Election Officers in determining the question on non-compliance with the provisions of the Electoral Act, 2010 (as amended) raised by the Petitioner is correct?

2. Whether the Court of Appeal below was right when it affirmed the decision of the Tribunal of first instance to the effect that exhibits GP 2 - GP 42 and exhibit GP 45 are not legal evidence but hearsay evidence, dumped on the Tribunal without any supporting oral evidence?

3. Whether the decision of the Court of Appeal to the effect that exhibit GP 45 was incomplete and unreliable, based on the evidence of PW8, is supportable?

While learned senior counsel for the first and second respondents adopted the above three issues in their tenor, learned senior counsel for the third respondent, Dr Onyechi Ikpeazu, SAN, adopted the same issues but in a more succinct and gripping phraseology in tandem with the posture of this court in several cases, two of which are cited here, Olafisoye v FRN (2004) LPELR -2553 (SC) 35, A- C; Imonikhe v AG, Bendel State [1992] 6 NWLR (pt 248) 396; Ngilari v Mothercat Ltd [1993] 8 NWLR (pt 31) 370. The golden rule has, always, been that parties must endeavour to avoid verbosity, Musaconi Lts v Aspinaill (2013) LPELR -20745 (SC) 17, A- B; Anaeze v Anyaso (1993) LPELR -480 (SC).

I am enamoured of the issues of the third respondent because, as I have already pointed out above, they are couched in a more succinct and gripping phraseology in tandem with the posture of this court in several cases that parties must endeavour to avoid verbosity in the issues they frame. For their precision, therefore, I adopt the said issues of the third respondent in the determination of this appeal.

After all, this court has the prerogative to reframe the issues where it is of the opinion that the issues formulated by counsel are not succinct provided that the issues so reframed are covered by the grounds of appeal as canvassed by the appellant, D. P C. C Ltd v B P. C. Ltd [2008] 4 NWLR (pt 1077) 376, 396 -397; 418-419; Oforiode v. Oyebi [1984] 1 SCNLR 390; N.P.A. v. Panaipina World Transport (Nig,) Ltd. (1974) 1 NMLR 82; Fabiyi v. Adeniyi [2000] 6 NWLR (pt 662) 532.

Thus, the three issues for the resolution of this appeal are:

1. Whether the lower court was correct when it confirmed the decision of the trial Tribunal to the effect that the appellant did not establish the case of non-compliance with the provisions of the Electoral Act, 2010 (as amended)?

2. Whether the lower court was right in confirming the decision of the trial Tribunal that exhibits GP2 - GP42 and exhibit GP45 were unavailing to the appellant having been dumped on the trial Tribunal and with no witness who could be cross examined

as to their contents?

3, Whether the lower court was right in holding that, having regard to the evidence of PW8, exhibit GP 45 - the Card Report - was incomplete, unreliable and incapable of proving the appellants allegation of improper accreditation/over -voting?

Furthermore, I am, even, of the view that, having regard to the thematic affinity between the first and third issues, they could be taken together; hence their coalescence into one issue with two-pronged limbs. They would, thus, be considered together.

ISSUES FOR DETERMINATION

ISSUE ONE

Whether the lower court was correct when it confirmed the decision of the trial Tribunal to the effect that the appellant did not establish the case of non-compliance with the provisions of the Electoral Act, 2010 (as amended)?

AND

Whether the lower court was right in holding that, having regard to the evidence of PW8, exhibit GP 45 - the Card Report - was incomplete, unreliable and incapable of proving the appellant's allegation of improper accreditation/over -voting?

When this appeal was heard on January 27, 2016, Chief U. N. Udechukwu, SAN, who with Charles Uwensuyi-Edosonwan, SAN, appeared for the appellant with other counsel, whose names appear on the Counsel's List, adopted the appellant's brief of argument filed on January 1, 2016. He, equally, adopted the appellant's reply brief filed on January 22, 2016. He placed reliance on the arguments In both briefs in support of his entreaty that this court should allow the appeal and favour the appellant with the reliefs sought.

The first limb of this issue was the complaint that impugned the propriety of the lower court's finding that the appellant failed to establish his claim of non-compliance with the Electoral Act and INEC's Guidelines and Manual for Election Officers. The arguments here were hinged on the following premises.

It was, first, contended that the lower court, wrongly, held that the trial Tribunal duly and properly considered exhibits GP2 - GP 42 and GP45. Counsel canvassed the view that the lower court did not appreciate the Petitioner's case, namely, that election took place in all polling units in Ebonyi State; nay more, that accreditation was successfully done with the Electronic Card Reader Machine which functioned at every polling unit.

The court was enjoined to take judicial notice of paragraph 13; together with the Corrigendum No 2 made on March 28, 2015, amending paragraph 13 (b); paragraph 28 of the Approved Guidelines for 2015 General Elections. Counsel pointed out that the respondent's case was that the said Card Reader failed in some places which prompted the resort to manual accreditation. Counsel maintained that exhibits GP2- GP42 and GP 45 were not evaluated with a view to making findings whether paragraph 13 (supra) was breached.

The finding of the lower court that the trial Tribunal "kept faith with its decision to consider the pleadings and evidence adduced by the appellant in line with the provisions of the Guidelines and Manual (supra).." was pilloried as being erroneous.

Arthur Obi Okafor, SAN, for the first respondent, adopted the brief filed on January 19, 2016. In the said brief, paragraphs 4.01- 4.01, pages 6-17, were devoted to a rebuttal of the arguments of the appellant. In the main, the crux of his rebuttal argument was that the appellant did not call the makers of the said exhibits GP2- GP42 and GP45 as witnesses so that they could not only be cross examined as to their contents but, equally, tie them to the specific aspects of the appellant's case.

Attention was drawn to the testimonies of PW1; PW2 -7 and PW8 and how they fared under cross examination.

Counsel maintained that the lower courts evaluated the said exhibits GP2-GP42 and GP45. He pointed out that, though the appellant sought to prove over-voting, he did not tender a voter's register, citing Shinkafi and Anor v Yah and Ors [Appeal No SC.907/2015 delivered on January 8, 2016]. Above all, he contended, the appellant failed to relate the documents to the specific aspects of his case.

In his view, since the appellant's Petition entreated the court for declaratory reliefs, he must succeed on the strength of his case irrespective of whatever weaknesses bedevil the respondents' case, as the lower court found: findings which were not appealed against, citing PDP v INEC and Ors [2012] 49 NSCQR 1897; even then he [the appellant] had a burden to prove all the grounds upon which he brought his Petition, Buhari v INEC [2008] 18 NWLR (pt 1120) 246, 350. He urged the court to resolve this issue against the appellant.

For the second respondent, J. U. K. Igwe, SAN, adopted the brief filed on January 18, 2016. He canvassed the view that the evidence of PW1 was hearsay evidence that was dumped on the trial Tribunal, paragraphs 4, 3. 2 -4.4, pages 6 -20 of the second respondent's brief. He pointed out that exhibit GP45 was an incomplete and unreliable document, also, dumped on the trial Tribunal, paragraphs 4. 4.1 -4. 4. 23, pages 20 -27 of the brief.

He pointed out that, from pages 1130 -1154 of Vol 2 of the record, the evidence of PW1, which the appellant's counsel claimed were discoverable from the electoral forms, have their foundation in several paragraphs of the Petition which the trial Tribunal had struck out on October 16, 2015, yet there was no appeal against that order striking out those paragraphs. He maintained that, all said and done, the evidence of PW1 (including exhibit GP45, which he tendered) was not predicated on any foundation, He, too, urged the court to resolve this issue against the appellant.

Last, but surely, not the least, Dr Onyechi Ikpeazu, SAN, adopted the third respondent's brief filed on January 20, 2016. He sought to dismantle the foundation on which the appellant's first issue was erected. Citing pages 16-17 of the judgement of lower court, learned senior counsel pointed out that, since the appellant did not appeal against the finding which affirmed the trial Tribunal's consideration of the merit of his Petition in line with the Guidelines and Manual (supra), he was bound by it and so, he was foreclosed from, further, pursuing that point in this court.

He, therefore, contended that, since the first issue was still anchored on that finding, the entire arguments predicated on the alleged non-compliance with the Electoral Act must crumble, citing Ogunyade v Oshunkeye [2007] 15 NWLR (pt 1057) 218, 257; M. C Inv Ltd v C I. And C M. Ltd [2012] 12 NWLR (pt 13130 1, 17.

As a logical corollary, he maintained that the lower court, rightly, proceeded to consider the question whether, in fact, the trial Tribunal embarked upon due evaluation of the appellant's evidence apropos the allegation of non-compliance, citing page 18 of the judgement of the lower court. He returned an affirmative answer placing reliance on the finding of the trial Tribunal at page 1431 of the record, which was affirmed by the lower court, at page 18 of its judgement.

What is more, the appellant failed to show that the concurrent findings on the alleged non-compliance (supra) was either perverse or had occasioned a miscarriage of justice. Even then, the appellant must demonstrate the existence of special circumstances to warrant this court's interference with those findings, Akeredolu v Akinremi [1986] 2 NWLR (pt 250 710; Ogunbiyi v Adewunmi [1988] 5 NWLR (pt 93) 215.

On the allegation of improper accreditation based on the Card Reader Report, [exhibit GP45], counsel maintained that the appellant failed to puncture the trial Tribunal's reliance on the evidence of PW8 whose testimony was to the effect that exhibit GP45 was inconclusive.

Since the Petition was not anchored on over-voting by reference to the Register of Voters, it would be improper now to canvass a case of non-compliance predicated on the breach of section 49 (1) and (2) of the Electoral Act, 2010 (as amended). He, too, urged the court to resolve this issue against the appellant.

In the Reply brief, feeble responses were made with regard to the testimony of PW1; exhibits GP2 -GP42 and GP45, paragraph 9. This court was invited to reconsider its recent decision in Shinkafi v Yari (supra),

RESOLUTION OF THE ISSUE

As, already indicated above, in an attempt to prove his Petition, the appellant [as Petitioner] called PW1 as his star witness. He testified. Exhibits GP2 -GP42, results of the election from the Polling Units, with respect to the Local Government Areas which the appellant [as Petitioner] challenged, were tendered through him.

Curiously, learned senior counsel for the appellant would seem not to have, thoroughly, acquainted himself with the import of the testimony of PW1. At page 13, [paragraph 4.2 of the appellant's brief], he contended that the "Court of Appeal fell into error partly because it misconstrued the capacity in which PW1 testified. The Tribunal below had made an order allowing the Petitioner and his representatives to take part in a joint inspection of the electoral materials and obtain a report. PW1 took part in the inspection as representative/nominee of the Petitioner. It was in this capacity that PW1 received exhibits GP2 -GP42 and 45...," [italics supplied].

With profound respect, this contention, surely, flies in the face of the ipse dixit of the self-same PWI who, in answer to a question by J. U. K. Igwe, SAN, in cross examination, at page 1182 of Vol 2 of the record, conceded that "I was not part of the team that came to Abakaliki for the exercise but I already had the working documents..."

Be that as it may, the responses elicited from PWI under the fusillade of cross examination did not bolster the appellant's case. Only one example of his fumbling reactions to questions in cross examination, which has a direct bearing on the findings of the lower court may be cited here. Indeed, his responses to Dr Onyechi Ikpeazu, SAN's questions under cross examination exposed the ineffectuality of his testimony. Hear him:

I read page 4, middle paragraph where it stated that we did not take cognisance of individual results of political parties... nor the number of votes cast at the election. I still stand by the report. I see page 4 again. The statement in the middle paragraph is correct. / was not in any poliing unit in Ebonyi State on the day of election. It is not true to say that I relied on some ballot papers as they were discountenanced, / have never worked at INEC. I did not operate a Card Reader Machine. I did not participate in the off-loading of information from the Card Reader Machine to the INEC Data base, I see page 34, paragraph 4, 3f 1.1 have not heard of the word voting point. We only made our observations known on the facts contains (sic) on page 34, we did not discredit any result based on that. There is [a] difference between the analysis of a photocopy of a document and the analysis of an original copy. The documents given to me for analysis were Certified True Copies of photocopies...

[Italics supplied for emphasis]

Little wonder then why, at pages pages 1420 -1421 of the record, the trial Tribunal derided the above viva voce testimony in these apt words:

PWl's evidence in relation to exhibits GP2 -GP42 can best be described as documentary hearsay evidence [an obvious reference to section 37 (b) of the Evidence Act, 2011] and that they were dumped on the Tribunal without the Petitioner making available any oral evidence by the person who can explain their purport.

Surely, since the witness [PWI], was not "in any polling unit in Ebonyi State on the day of election;" "had never worked at INEC office;" "did not participate in the off-loading of information from the Card Reader Machine to the INEC Data base" and "was not part of the team that came to Abakaliki for the exercise," the lower court, rightly, affirmed the position of the trial Tribunal that no weight could be attached to his evidence for he was "ignorant of [their] content."

As this court explained in Buhari v INEC [2008] 19 NWLR (pt 1120) 246, 391 -392, "weight can hardly be attached to a document tendered in evidence by a witness who cannot or is not in a position to answer questions on the document One such person the law identifies is the one who did not make the document Such a person is adjudged in the eyes of the law is ignorant of the content of the document."

[Italics supplied for emphasis]

Interestingly, as, also, shown above, PWI conceded that he did not author exhibits GP2 -42, the electoral Forms. The implication, therefore, is that his tendering them without the testimony of the maker or clear reasons for his absence is valueless, Haruna v Modibo (supra); Buhari v Obasanjo (supra).

What is more, the appellant anchored his case on exhibits

GP2 -GP42. As Dr Onyechi Ikpeazu, SAN, rightly, pointed out at paragraph 7.04, page 15 of the third respondent's brief, the "essence of the evidence of PWI, through whom exhibits GP2-GP42, were tendered was to substantiate the alleged irregularities and non-compliance with respect to the entries in the result sheets, with the dictates of the Electoral Act, 2010 (as amended)."

That notwithstanding, in the words of the lower court, "these documents, GP2 -GP42 were before the trial Tribunal tightly bound and dumped in a corner..." Expectedly, the trial Tribunal characterised the evidence of PWI as hearsay evidence and that the said documents were merely dumped on it, pages 1417-1421, Vol 2 of the record. The lower court, un-hesitantly, endorsed the approach of the trial Tribunal and affirmed that:

Apart from PWI whose testimony was bereft of credibiiity, no other witnesses of the appellant made any attempt to relate the documents in issue to the relevant portions of his Petition, The documents, GP2 -GP42 were before the trial Tribunal tightly bound and dumped in a corner. These documents were entries in electoral forms which ordinarily require oral evidence of someone conversant with the said entries to relate them to the disputed score and thereby them to life. Such evidence could not emanate from PWI who only worked on received copies of the said documents. His later activities could not by any stretch validate or give life to what he never knew about. He was simply put, a stranger to the entries contained in those documents...

[Italics supplied for emphasis]

Given his un-inspiring performance at cross examination, the lower court concluded that "with the above answers, no fair fair-minded tribunal would accord any probative value to the testimony of this witness, PWI." Like the PWI, whose evidence lacked probative value, the PWI -PW7, unfortunately, did not fare better under cross examination prompting the trial Tribunal's findings, affirmed by the lower court, that:

All we can say here is that the evidence of PW2 -PW7 considered above cannot be relied upon by the Petitioner in proof of the burden placed on him to prove the allegation of non-compliance with the Electoral Act, 2010 (as amended) or the Manual and Guidelines for the 2015 Election. The witnesses aforestated [that is, PWI -PW7] have been so discredited under cross examination that no probative value can be ascribed to their evidence...,

[Italics supplied for emphasis, page 1431 of the record]

The next witness was PW8, who was subpoenaed at the instance of the appellant, [pages 1185 -1188 of Vol 2 of the record]. Regrettably too, her testimony, rather than add the required fillip to the allegation of the Petitioner, torpedoed the very basis of the Petitioner's anchorage of his allegations on the Card Reader. Hear the account of the irreparable damage of the testimony of this witness to the case of the Petitioner, pages 548 -551 of Vol 2 of the record:

I am a staff of [INEC] and the HOU (ICT Data Management) at INEC Headquarters...The Card Reader performs two roles, namely, the verification of the PVC and the authentication of the fingerprint,..I generated a Card Reader Machines Report for Ebonyi State Governorship Election ....That the Card Reader (sic, Report) I generated... was not a complete report covering all the details of Polling Units in Ebonyi State as some Polling Units were not then uploaded and thus not included in that report. However, to meet the application request of the Petitioner's counsel, the Commission issued him with the CTC of what was available at the time of his application. Subsequently, following the application of the Petitioners, the uploaded data available at the time of instruction by the Chairman of INEC to shut down the server was delivered to the Petitioners...from the record available to us at ICT Department, INEC Headquarters, Abuja, there were some Pus where the database server at ICT Department [INEC Headquarters] recorded zero/nil for the Card Reader Machine Report for the Governorship... election...It may be attributable to where Card Readers were used but the data captured were not uploaded

[Italics supplied]

If only learned senior counsel for the appellant had taken the time and trouble to intimate himself of the gamut of the responses of the answers elicited from the PW8 in cross examination/ he would have thought twice before contemplating an appeal against the concurrent findings of the lower courts on this exhibit. Nothing could better vindicate these concurrent findings on this exhibit than her [PW8's] responses to questions under cross examination at pages 11186 -1187 of Vol 2 of the record.

Her trenchant respons