JUST IN: PLATEAU NATIONAL ASSEMBLY TRIBUNAL: HON. JONATHAN DABO AND PDP’S FINAL ADDRESS AND REPLY TO MAITALA HARUNA’S (2ND RESPONDENT’S) FINAL ADDRESS (UNEDITED)

IN THE NATIONAL AND STATES HOUSES OF ASSEMBLY ELECTION PETITION TRIBUNAL

PLATEAU STATE, HOLDEN AT JOS

Petition No.: EPT/PL/NA/HR/05/2019

IN THE ELECTION TO THE OFFICE OF MEMBER OF THE HOUSE OF REPRESENTATIVES OF THE FEDERAL REPUBLIC OF NIGERIA FOR THE JOS NORTH/BASSA FEDERAL CONSTITUENCY HELD ON 23RD DAY OF FEBRUARY, 2019 AND 9TH MARCH, 2019.

BETWEEN:

  1. HON. JONATHAN DABO
  2. PEOPLES DEMOCRATIC PARTY ..…………. PETITIONERS       

AND 

  1. INDEPENDENT NATIONAL ELECTORAL COMMISSION
  2. HON. MAITALA HARUNA    …RESPONDENTS
  3. ALL PROGRESSIVES CONGRESS

PETITIONERS’ FINAL ADDRESS AND REPLY TO THE 2ND RESPONDENT’S FINAL ADDRESS 

1.0       INTRODUCTION

1.01     By a Petition dated 15th March, 2019, and filed on same date, the Petitioners prayed the Honourable Tribunal for 12 reliefs contained at pages 43 – 45 of the Petition.

1.02     In a nutshell, the Petitioners case is that election was validly, peacefully and conclusively held in all the 65 polling units of Tudun Wada/Kabong Ward of Jos North/Bassa Federal Constituency on 23rd February, 2019. That the votes scored by the Petitioners in the sum of 31,470 and the votes scored by the 2nd and 3rd Respondents in the sum of 3,816 in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election was unlawfully cancelled by the 1st Respondent. Thereafter the 1st Respondent scheduled a re-run election whereupon the 2nd and 3rd Respondents were declared winner of the election. It is the cancellation of the result from Tudun Wada/Kabong Ward, the re-run election and subsequent declaration which the Petitioners herein pray the Tribunal to nullify for being unlawful.

1.03     In response to the Petition, the 1st Respondent filed its Reply to the Petition dated 8th April, 2019 and filed on same date. However, pursuant to the Petitioners’ Application dated and filed on 8th May, 2019, the 1st Respondent’s Reply to the Petition which was filed out of time was struck out by the Ruling of this Honourable Tribunal delivered on 5th July, 2019, for being incompetent.

1.04     The 2nd Respondent’s Reply to the petition dated 8th April, 2019 was filed on 9th April, 2019 while the 3rd Respondent’s Reply dated 9th April, 2019 was filed on same date. The Petitioners filed Replies to the respective Respondents’ Replies. The Petitioners’ Reply to the 2nd Respondent’s Reply is dated and filed on 15th April, 2019. While the Petitioners’ Reply to the 3rd Respondent’s Reply is dated 25th April, 2019, but filed on 27th April, 2019.

1.05     The Petitioners called 58 witnesses, PW1 – PW58 and tendered documents marked as Exhibits P – P130 and closed their case on 7th August, 2019. The 1st Respondent did not call any witness and did not tender any exhibit. The 2nd Respondent called 1 witness and tendered documents marked as Exhibits R – R73. The 3rd Respondent called 3 witnesses but did not tender any exhibit.

2.0       ISSUES FOR DETERMINATION

2.01     Having regards to the facts of this Petition and the evidence before the Honourable Tribunal, the Petitioners respectfully submit that the following are the issues for your Lordships’ determination, namely: 

  1. Whether the Local Government Collation Officer for Jos North Local Government Area and/or the Federal Constituency (House of Representatives) Collation/Returning Officer for the Jos North/Bassa Federal Constituency of the 1st Respondent; have the power/vires to cancel the result of the Election validly held in all the Polling Units of Tudun Wada/Kabong Ward in Jos North/Bassa Federal Constituency on 23rd February, 2019.
  1. Whether election was validly held in all the Polling Units in Abba Na Shehu Ward Code: 01, Ali Kazaure Ward Code: 02, Garba Daho Ward Code: 03, Ibrahim Katsina Ward Code: 05, and Naraguta ‘A’ Ward Code: 09; in Jos North/Bassa Federal Constituency on 23rd February, 2019.
  1. Whether the election and return of the 2nd Respondent as the member of the House of Representatives for the Jos North/Bassa Federal Constituency was held in substantial compliance with the provisions of the Electoral Act.

3.0       ARGUMENT ON ISSUE NO. 1: 

3.01     This general rule on burden of proof is expressed in the latin maxim “ei qui affirmat non ei qui negat incumbit probation” which is encapsulated in Sections 131(1) & (2) and 132 of the Evidence Act, 2011. The burden of first proof lies against whom judgment would be given if no evidence is adduced on either side regard being had to the presumption that arise in the pleadings that there was an election and the winner declared. See Section 133 of the same Act. The poser then is: who would fail in the event no evidence is led in support of this case? Certainly, it is the Petitioners as it relates to this issue under consideration. See, Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419 at 461-462.

3.02     Hence, it is the duty of the Petitioners as in the instant case to prove the allegations contained therein. Until the Petitioners have discharged the onus placed on them by law, the onus does not shift. See, Jang v. Dariye (2003) 15 NWLR (Pt. 843) 436 at 466 and Haruna v. Modibbo (2004) 16 NWLR (Pt. 900) 487 at 556-557. It is pertinent at this juncture to determine what the complaint of the Petitioners is in respect of this case?

3.03     The case of the Petitioners as it relates to the first issue argued herein is amply captured in paragraphs 22 of the Petition which runs from pages 11 – 40 of the Petition which essentially borders on the fact that election was held on 23rd February, 2019, in all the Polling Units in Tudun Wada/Kabong Ward of Jos North/Bassa Federal Constituency which produced a result but same was cancelled by the 1st Respondent for no valid reason. The next question then is; have the Petitioners led evidence in proof of their allegations, particularly, bearing in mind, that the sole Ground of the Petition states that the 2nd and 3rd Respondents were not elected and returned by majority of lawful votes cast at the election? The Petitioners submit that having regard to the totality of the evidence adduced in the course of the trial of the Petition, this question ought to be answered in the affirmative.

3.04     In resolving Issue No. 1, three questions arise for consideration. They are:

  1. Was election held at the polling units in Tudun Wada/Kabong Ward of Jos North Local Government Area in the Jos North/Bassa Federal Constituency on 23rd February, 2019.
  1. Did the election held in all the polling units in Tudun Wada/Kabong Ward of Jos North Local Government Area in the Jos North/Bassa Federal Constituency on 23rd February, 2019, produce results and were the results of the polling units collated at the Tudun Wada/Kabong Ward Collation Centre by the INEC Ward Collation Officer.
  1. Does the Local Government Collation Officer for Jos North Local Government Area and/or the Federal Constituency (House of Representatives) Collation/Returning Officer for the Jos North/Bassa Federal Constituency of the 1st Respondent; have the power/vires to cancel the result of the Election validly held in all the Polling Units of Tudun Wada/Kabong Ward in Jos North/Bassa Federal Constituency on 23rd February, 2019.

3.05     On the the first and second questions: Was election held at the polling units in Tudun Wada/Kabong Ward of Jos North Local Government Area in the Jos North/Bassa Federal Constituency on 23rd February, 2019;

AND

Did the election held in all the polling units in Tudun Wada/Kabong Ward of Jos North Local Government Area in the Jos North/Bassa Federal Constituency on 23rd February, 2019, produce results and were the results of the pollng units collated at the Tudun Wada/Kabong Ward Collation Centre by the INEC Ward Collation Officer:

 It is submitted that the Petitioners pleaded and indeed led overwhelming evidence in proof of the fact that elections held at the respective polling units in Tudun Wada/Kabong Ward on 23rd February, 2019. In Abubakar v. Yar’adua (2008) 19 NWLR (Pt. 1120) 1 at 173; Tobi, J.S.C. held:

“… He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked the evidence from an eye-witness. No. They must be eye-witnesses too. Both forms and witnesses are vital for contesting the legality or lawfulness of the votes and the subsequent result of the election. One cannot be a substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recording of the votes; wrong doings and irregularities which affected substantially the result of the election.”

 3.06     The Petitioners called a substantial number of witnesses who were polling unit agents, ward agents and local government collation agents for the Petitioners. They were at the polling units and collation centres on the day of the election. They witnessed the holding of elections on 23rd February, 2019. They are:

  1. W 1 is IBRAHIM ANGO MUSA, PDP polling unit agent at Behind Saint Murumba Code 060, whose deposition is at pages 49-50 of the Petition. He gave his evidence on the 4th July, 2019 He relied on Exhibit P and stated that election held in his polling unit on 23rd February, 2019.
  1. W 2 is DOLAMA ANNO, PDP polling unit agent at Federal Secretariat Code 022, whose deposition is at pages 56-57 of the Petition. He gave his evidence on the 4th July, 2019. He relied on Exhibit P1 and P2 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 3 is KAMALMAYA DABI, PDP polling unit agent at Mallam Fari Junction Code 055, whose deposition is at pages 58-59 of the Petition. He gave his evidence on the 4th July, 2019. He relied on Exhibit P3 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 4 ROSE MSHELIA, PDP polling unit agent at Utan South Code 036 whose deposition is at pages 198-199 of the Petition. He gave his evidence on the 4th July, 2019. She relied on Exhibit P4 and stated that election held in her polling unit on 23rd February, 2019.
  1. W 5 MR ANTONY MGBOJIKWE who was served a subpoena, is the Tudun Wada/Kabong Ward Returning Officer. He testified on the 4th July, 2019, and relied on Exhibits P13, P13A, 13B and 13C. He stated that elections were held in all the 65 Polling Units in Tudun Wada/Kabong Ward which he collated into the Ward Summary Result Sheet, Exhibits P13, P13A, 13B and 13C, after which he announced results and submitted the results to the Jos North Local Government Area Collation Officer.
  1. W 6 DR JOCK ASANGA ALEXANDER was the Local Government Area Collation Officer. He testified on 4th July on subpoena. He also relied on Exhibits P13, P13A, 13B and 13C and P14. He also affirmed that there was collation of result from Tudun Wada/Kabong Ward which was submitted to him by PW5. That it was after entries of the Tudun Wada/Kabong Ward Result were made into Exhibit 14 that he was directed bythe INEC Jos North Local Government Electoral Officer, to cancel the result.
  1. W 7 BESOR KOFA, PDP polling unit agent at Ung. Rimi Rukuba Road Code 043, whose deposition is at pages 122-123 of the Petition. He gave evidence on 4th of July, 2019. He relied on Exhibits P7, P11 and P12 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 8 LUKA CHOJI whose deposition is found at pages 195-197 of the Petition. He gave his evidence on the 4th of July, 2019. He relied on Exhibit P9 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 9 SUNDAY JANG whose deposition is found at pages 168-169 of the Petition. He gave his evidence on the 4th of July, 2019. He relied on Exhibit P8 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 10 GIDEON JOSEPH, PDP polling unit agent at Kabong South Code 001, whose deposition is at pages 94-95 of the Petition. He gave evidence on 4th July, 2019. He relied on Exhibit P5 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 11 is MANCHA ALEX SAMANJA, PDP Ward Collation agent at Tudun Wada/Kabong Ward whose deposition is at pages 88-91 of the Petition. He gave his evidence on 22nd July, 2019. He relied on Exhibits P13 P13A, 13B and P13C.He gave evidence that there was elections in the 65 Polling Units in Tudun Wada/Kabong Ward and that there was collation at the Ward Collation Centre after which the result was announced and he signed the Ward result sheet.
  1. W 12 KEFAS ISSAC, PDP polling unit agent at Ung. Bauda Tudun Wada III Code 015, whose deposition is at pages 104-105 of the Petition He gave his evidence on the 22nd July, 2019. He relied on Exhibit P6 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 13 SAMANJA CHUNG PACTRICK, PDP polling unit agent at Utan Lane 1 Code 061, whose deposition is at pages 116-117 of the Petition. He gave his evidence on 22nd July, 2019. He relied on Exhibit P10 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 14 EMMANUEL TISEH JERRY, PDP polling unit agent at Alheri South II Code 004, whose deposition is found at pages 62-63 of the Petition. He gave his evidence on the 22nd July, 2019. He relied on Exhibit P16 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 15 AARON ISHAKU DUSU, PDP polling unit agent at Gboko Road Tudun Wada Code 056, whose deposition is at pages 120-121 of the Petition He gave his evidence on the 22nd July, 2019. He relied on Exhibit P17 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 16 PAUL SETH, PDP polling unit agent at Ung. Chai Kabong Code 044 whose deposition is at pages 110- 111 of the Petition He gave his evidence on 22nd July, 2019. He relied on Exhibit P18 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 17 TINA MARKUS, PDP polling unit agent at Ungwan Yashi Code 026 whose deposition is at pages 144-145 of the Petition. She gave her evidence on 22nd July, 2019. She relied on Exhibit P19 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 18 JOB KPANDO, PDP polling unit agent at Ung. Juma’a Rukuba Road Code 051, whose deposition is at pages 112-113 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibits P20 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 19 is MONDAY MWA AKPA, PDP polling unit agent at Albarkans Primary School Code 040, whose deposition is at pages 77-79 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibit P22 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 20 ASOLOKO S. GODWIN, PDP polling unit agent at Mado Tourism Gate Tudun Wada Code 039, whose deposition is at pages 134-135 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibits P23, P23A, P23B, P23C and P23D and stated that election held in his polling unit on 23rd February, 2019.
  1. W 21 is FATIMA ABAH, PDP polling unit agent at Unguwan Miango I Code 011, whose deposition is at pages 80-81 of the Petition. She gave her evidence on 23rd July, 2019. She relied on Exhibits P24, P24A and P24B and stated that election held in his polling unit on 23rd February, 2019.
  1. W 22 DANGANA SAMUEL, PDP polling unit agent at Post Office Zaria Road Code 054, whose deposition is at pages 178-179 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibits P26, 26A and P26B and stated that election held in his polling unit on 23rd February, 2019.
  1. W 23 ROSE DUNG SOLOMON, PDP polling unit agent at Utan South Code 0036 whose deposition is found at pages 198-199 of the Petition. She gave her evidence on 23rd July, 2019. She relied on Exhibit P29 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 24 is SUKAT GOMPIL, PDP polling unit agent at Ung. Gada Code 010 whose deposition is found at pages 188-189 of the Petition, She gave her evidence on 23rd July, 2019. She relied on Exhibit P41 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 25 ANDREW ABERE, PDP polling unit agent at Ungwan Yashi I Code 025 whose deposition is at pages 70-71 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibit P28 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 26 MICHAEL MARCUS, PDP polling unit agent at Utan North Code 035, whose deposition is at pages 54-55 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibit P27 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 27 RAPHAEL P. SAMBO, PDP polling unit agent at Federal Secretariat II Code 063, whose deposition is at pages 190-192 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibit P43 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 28 JURBE LUKAS PEACE, PDP polling unit agent at St. Murumba Zaria Road II Code 016, whose deposition is at pages 106-107 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibit P30 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 29 HABILA PAUL, PDP polling unit agent at Ung. Wali Gada Biu I Code 017, whose deposition is at pages 108-109 of the Petition. He gave his evidence on 23rd July, 2019. He relied on Exhibits P25 and P25A and stated that election held in his polling unit on 23rd February, 2019.
  1. W 30 JOHN BABAGIDA NAKOTO, PDP polling unit agent at Kabong RCM Code 034, whose deposition is at pages 82-83 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibits P49, P49A and P49B and stated that election held in his polling unit on 23rd February, 2019.
  1. W 31 MONDAY OVIE, PDP polling unit agent at Ungwan Mata Kabong Code 050, whose deposition is at pages 176-177 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibits P57 and P57A and stated that election held in his polling unit on 23rd February, 2019.
  1. W 32 EMMANUEL I. SONG, PDP polling unit agent at Kabong Central I Code 032, whose deposition is found at pages 128-129 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P50 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 33 JACOB AUDU IDOKO, O.C Legal of the Nigerian Police Force, Jos, Plateau State Command was Subpoenaed to produce the results Polling Unit Results and Ward Summary Result for Tudun Wada/Kabong Ward. The results were tendered and admitted as Exhibits P72 – P122C, respectively.
  1. W 34 ABIGAIL ABBA, PDP polling unit agent at Ungwan Miango Tudun Wada II Code 012, whose deposition is found at pages 52-53 of the Petition. She gave her evidence on 30th July, 2019. She relied on Exhibit P44, and also stated that election held in her polling unit.
  1. W 35 DANJUMA AKOH, PDP polling unit agent at Dong Polling Unit Code 029, whose deposition is at pages 157-158 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P55 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 36 CHARLES PWAJOK, PDP polling unit agent at Ungwan Chawai Code 047, whose deposition is at pages 174-175 of the Petition. He gave his evidence on the 30th July, 2019. He relied on Exhibit P37 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 37 JAMES DAVOU ZI, PDP polling unit agent at Alheri South I Code 0003, whose deposition is found at pages 64-65 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P63, P63(a) and stated that election held in his polling unit on 23rd February, 2019.
  1. W 38 ADEJO OGBE, PDP polling unit agent at Area Court Tudun Wada Code 041, whose deposition is at pages 170-171 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P97 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 39 DANG MARK YUSUF, PDP polling unit agent at Ungwan Abuja Code 0428, whose deposition is found at pages 86-87 of the Petition. He gave his evidence on the 30th July, 2019. He relied on Exhibit P32 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 40 CHRISTOPHER ACHIGAK, PDP polling unit agent at Ung. Chiroma Rukuba Road Code 030, whose deposition is at pages 130-131 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P40 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 41 MUSA SHADDY, PDP polling unit agent at Ung. Sarki Code 037, whose deposition is found at pages 193-194 of the Petition. He gave his evidence on the 30th July, 2019. He relied on Exhibit P47 and P47A and stated that election held in his polling unit on 23rd February, 2019.
  1. W 43 UGANDU JAMES, PDP polling unit agent at Utan Central Code 005, whose deposition is at pages 155-156 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P42 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 44 ROBERT UGWUJA, PDP polling unit agent at Kabong Central II Code 033, whose deposition is found at pages 126-127 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibit P33 and and stated that election held in his polling unit on 23rd February, 2019.
  1. W 45 ARIN CLETUS, PDP polling unit agent at (Dong Village) Ungwan Chiroma Code 057, whose deposition is found at pages 72-74 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibits P56, P56A, and P56B and stated that election held in his polling unit on 23rd February, 2019.
  1. W 46 IFEANYI NWEKE, PDP polling unit agent at Angwa Suya Code 019, whose deposition is at pages 164-165 of the Petition. He gave his evidence on 30th July, 2019. He relied on Exhibits P65 and P91 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 47 LEONARD FONSON, PDP polling unit agent at Alheri Central Code 002, whose deposition is found at pages 138-139 of the Petition. He gave his evidence on the 30th July, 2019. He relied on Exhibits P52, and P99 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 48 MICHEAL MALO, PDP polling unit agent at Utan Lane II Code 065, whose deposition is found at pages 124-125 of the Petition.He gave his evidence on 31st July, 2019. He relied on Exhibit P38 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 49 EUGENE WANG, PDP polling unit agent at Bauda Kabong Code 045, whose deposition is at pages 132-133 of the Petition. He gave his evidence on 31st July, 2019. He relied on Exhibit P53 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 50 VICTOR EJEH, PDP polling unit agent at Ung Abuja Tudun Wada Code 007, whose deposition is at pages 96-97 of the Petition. He gave his evidence on the 31st July, 2019. He relied on Exhibit P62, P62A and P62B and stated that election held in his polling unit on 23rd February, 2019.
  1. W 51 CAHRLES CHUKUWJINDU, PDP polling unit agent at St. Murumba Zaria Road Code 006, whose deposition is at pages 92-93 of the Petition. He gave his evidence on the 31st July, 2019. He relied on Exhibit P30 and P74 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 52 SUNDAY OHEMU, PDP polling unit agent at Ungwan Bauda Tudun Wada Voting Point Code 013, whose deposition is at pages 60-61 of the Petition. He gave his evidence on the 31st July, 2019. He relied on Exhibit P45 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 53 BUKOLA AMOS, PDP polling unit agent at Bauda II Polling Unit Code 014, whose deposition is found at pages 162-163 of the Petition. He gave his evidence on the 31st July, 2019. He relied on Exhibits P54 and P76 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 54 ALFRED D. DALYOP, PDP Polling Units Agent at LEA Primary School Code 021, whose deposition is found at pages 84-85 of the Petition. He gave his evidence on the 31st July, 2019. He relied on Exhibit P39 and P78 and stated that election held in his polling unit on 23rd February, 2019.
  1. W 55 DANJUMA SAMUEL, PDP Polling Unit Agent at Sabon Gari Mado Tudun Wada Code 038, whose deposition is at pages 166-167 of the Petition. He gave his evidence on the 31st July, 2019. He relied on Exhibit P60 and P119 and stated that election held in his polling unit on 23rd February, 2019.
  2. PW 56 ASP SULE MUSA, the Police Officer in Charge of Tudun Wada/Kabong Outpost adopted his deposition as VBE which was filed on 5th August, 2019. He testified that elections indeed held in all the 65 Polling Units of Tudun Wada/Kabong Ward and that he personally witnessed the collation exercise at the Tudun Wada/Kabong Ward Collation Centre and that the entire exercise was peaceful. PW56 identified Exhibits P72 to P122C as the duplicate copies of the results handed over to security personnel at the respective polling units in Tudun Wada/Kabong Ward at the election held on 23rd February, 2019.
  3. W 57 HWELLENG Y.D NYAM, the Local Government Collation Agent for PDP whose deposition is found at pages 152-154 of the Petition. He gave his evidence on the 7th August, 2019. He identified and relied on Exhibits P to P125 as the results for the 65 Polling Units he referred to in his adopted evidence and affirmed that election was held on 23rd February, 2019.

3.07     SUBMISSIONS

3.08     It is submitted that the Petitioners have by PW1 to PW58 and Exhibits P – P130 led credible and cogent oral and documentary evidence in support of their case. Each witness presented before this Honourable Tribunal played a role in the election. They were all eye witnesses who gave eye witness account of the fact that election was held in the polling unit in Tudun Wada/ Kabong Ward. The fact that election held in these polling units and the fact that collation of result was carried out was consistently maintained. The Petitioners have indeed established their allegations in this Petition.

3.09     In proof of their case, the Petitioners called the 1st Respondent, INEC’s Ward Collation Officer for Tudun Wada Ward who testified as PW5. He gave vital evidence and uncontroverted evidence that election held on the 23rd February, 2019, in all the 65 polling units in Tudun Wada/Kabong Ward the results of which were presented to him for collation at the Ward Collation Centre an exercise which he carried out without any problems and subsequently announced the collated result in compliance with the provisions of Section 27(1)(b) of the Electoral Act, 2010(as amended) and Paragraph 3.1(b) of the Manual for Election Officials, 2019,(Exhibit P126 and R71) and Paragraph 28(b)(i)-(xv) of the Regulations and Guidelines for the Conduct of Elections which was admitted in evidence as Exhibit R72 by the Honourable Tribunal.

3.10     The Petitioners further called PW56, the Police Officer in Charge of Tudun Wada/Kabong Outpost who testified in further affirmation that elections indeed held in all the 65 Polling Units of Tudun Wada/Kabong Ward and that he personally witnessed the collation exercise at the Tudun Wada/Kabong Ward Collation Centre and that the entire exercise was peaceful. PW56 identified the copies of the results handed over to security personnel at the respective polling units in Tudun Wada/Kabong Ward in compliance with the provisions of Section 63(3) of the Electoral Act, 2010 (as amended). Section 63(3) of the Electoral Act, 2010 (as amended); provides thus:

The Presiding Officer shall give to the Polling Agents and the Police Officer where available a copy each of the completed forms after it has been duly signed as provided in subsection (2) of this section.”

See also, Paragraph 3.1(b) Step 14 of the Manual for Election Officials, 2019 and Paragraph 28(b)(xiii) of the Regulations and Guidelines for the Conduct of Elections. In the case of Emerengwa v. INEC (2017) LPELR-43226 (CA) at pages 8 – 11, pras. C – A; it was held thus:

In overruling the objection the trial tribunal did not mince words when it clearly stated:

“the opposition on the documents is predicated on the fact that the police has no authority to certify INEC documents for which the petitioners relied on the case of Goodwill & Trust Investments Ltd V. Witt and Bush Ltd (2011)-1333 and Bilikisu Gambari V. INEC (2011) LPELR 9080 CA. We have examined these two cases and are of the view that they do not apply to this petition… in the present case, the police institution is entitled to receive and keep duplicate copies of the result. The provision for giving such copies to the police was designed to create a window for comparison in situations of the nature in this case. The duplicate copy of the result received and kept by the police is for that purpose a public document in their domain for which they can certify for the purpose and use of persons who desire them. This approach appears to be best to avoid losing custody of the document as other persons or parties may want to access same at the same time. For the above reason, we hold that the certified copies of the form EC8A (II) produced from the police and tendered in evidence are admissible.”

This finding of the tribunal cannot be faulted, and it is for this reason that it does not appear fair to accuse the tribunal of denial of fair hearing, when as a matter of fact the objection to the admissibility of the documents sought to be tendered during pre-hearing was by agreement deferred to the final address stage, see page 3406 of the record of appeal.

The submission of learned senior counsel to the 3rd respondent that the tribunal was perfectly right to have preferred the certified true copies of the results tendered by the police, makes a lot of sense, not least because, they were corroborated by the respondents’ copies to those tendered by the appellants in view of the peculiarity of this case, where INEC admitted not to be in possession of the originals; the authority of NNADI V. EZIKE (1999) 10 NWLR part 622 at 238 adds more impetus to this belief, where it was held per Fabiyi JCA, as he then was that:

“…forms given to police security men cum observers at the polling booths…constitute an internal solid inbuilt control mechanism or measure designed to unravel unlawful cancellations, alterations, mutilations and juggling of figures during elections…such results, as produced by the police, are the best and tenable available source to test the veracity of the parties, contentions on the issue of what in fact were actual scores made by the contending parties. To jettison the forms given to the police under any guise is like throwing discretion to the wind, as it were…”

The argument that exhibits 2RA (1) to 64 i.e. forms EC8A (1) are not admissible in evidence because they were not certified by the 1st respondent nor produced from proper custody of INEC is groundless, because once a document meets the requirements of Section 103 of the Evidence Act, and the document is relevant it is admissible, and the issue of proper custody only becomes relevant to the issue of weight to be attached to that document; besides the police were expected to be given counterpart copies, at each of the polling units; and since these are public documents nothing bars them from certifying them.

3.11     The relevance of the provisions of Section 63(3) of the Electoral Act, 2010 (as amended), has come to bear in the instant case where the respective Respondents to this Petition seeks to have this Honourable Tribunal believe that there was no election at the Polling Units of Tudun Wada/Kabong Ward. Meanwhile, Exhibits P72 to P122C have proved otherwise. Exhibits P72 to P122C which were duplicate copies given to security agents during the election at the respective poling units of Tudun Wada/Kabong Ward and the Ward Summary Result has indeed unravelled the unlawful cancellation of the result of the election at Tudun Wada/Kabong Ward. It is submitted that Exhibits P72 to P122C, as produced by the police, are the best and tenable available source to test the veracity of the parties, contentions on the issue of what in fact were actual scores made by the contending parties. As rightly held in Emerengwa’s case cited above, it is submitted that to jettison the forms given to the police in this Petition under any guise is like throwing discretion to the wind, as it were. We urge this Honourable Tribunal to so hold. The duplicate copies of Polling Unit results given to the Police who had no personal interest to serve in this election and tendered and admitted in evidence put paid to the contention of the Respondents that elections were not held in the Polling Units constituting Tudun Wada/Kabong Ward or that there was no collation with the use of Polling Unit Results in INEC Form EC8A(II) series.

3.12     PW58, John Pam Sheku also testified that election held in all the polling units in Tudun Wada/Kabong Ward after which the results were submitted to the INEC Ward Collation Officer, PW5 at the Ward Collation Centre for collation which he, PW58 personally witnessed. PW58 stated that collation was carried out and the result announced. Of note, is Exhibit P128, a Flash Drive which was tendered and admitted through PW58, containing a video recording of the announcement of the Tudun Wada/ Kabong Ward collated result. The video recording was played in open Court to the sighting and hearing of the Honourable Tribunal.

3.13     In addition to the documentary evidence placed before the Tribunal, (i.e. Exhibits P13, P13A, P13B and P13C and P122, P122A, P122B and P122C, the Ward Summary Result Sheet for Tudun Wada/Kabong Ward); the Petitioners established by the video recording in Exhibit P128 that the votes scored by the Petitioners in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election was 31,470 which was unlawfully cancelled by the 1st Respondent. Meanwhile, the votes scored by the 2nd and 3rd Respondents in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election was 3,816 which was unlawfully cancelled. Noteworthy, is that all the Respondents in general and the 2nd Respondent in particular, did not comply with the mandatory provisions of Paragraph 12(1)and (2) of the First Schedule to Electoral Act, 2010 (as amended) which requires a respondent to plead and prove that the figures put forth by the Petitioners are incorrect. In the case of DR OLUSEGUN AGAGU & ORS V. RAHMAN OLUSEGUN MIMIKO & ORS (2009) LPELR-21149(CA) Per ABDULLAHI, JCA (Pp. 62-65, paras. E-B) or (2009) 7 NWLR (PT 1140) 342 at 413 – 415, paras. H – B; held on what a respondent should set out in his reply in an election petition:

Where the Petitioner/First Respondent herein claimed that he scored the highest number of lawful or valid votes cast at the election as in the instant appeal, the first Respondent that is, the Party declared the winner is required to comply with the mandatory provisions of Paragraph 12 of the First Schedule to the Electoral Act No. 2 of 2006. It requires the Respondent to set out clearly in his reply particulars of the votes which he intends to object to demonstrating how to prove at the hearing that the Petitioner is not entitled to be returned.

Sub-Paragraph (2) of Paragraph 12 of the First Schedule to the Electoral Act No. 2 of 2006, which is pertinent, reads as follows:- “(2) Where the Respondent in an election petition, complaining of an undue return and claiming the seat of office for a petitioner intends to prove that the claim is incorrect or false, the respondent in his reply shall set out the facts and figures clearly and distinctly disproving the claim of the Petitioner”. (Underlining mine).

The provision demands much more than the reply merely denying joining of issues with the Petitioner and even averring to additional facts. This is just a basic requirement in civil proceedings, which has been provided for in Paragraphs 12(2) of the First Schedule of the Act. Paragraph 15, which requires much more than is demanded under Paragraph 12(2) provides as follows:- “15. When a Petitioner claims the seat alleging that he had the highest number of valid votes cast at the election, the party defending the election or returned at the election shall set out clearly in his reply particulars of votes, if any, which he objects to and the reasons for is objection against such votes showing how he intends to prove at the hearing that the petitioner is not entitled to succeed.” “(underlining mine).

Thus, the Respondent is required to specifically put down- (i) The particulars of the votes he objects to; (ii) The reason or reasons for his objection against such votes; and (iii) Show how he intends to establish at the trial that the Petitioner was not entitled to succeed or to be returned.

The consequence of neglect or failure of the Respondent to comply with the provisions of Paragraph 15 of the First Schedule to the Electoral Act is that the result tendered by the Petitioner is deemed not challenged or controverted. See Hassan v. Tumu (1999) 10 NWLR (Pt. 624) 700, 710 and 712. I have carefully examined the Respondent’s reply, which is in Vol. VI at pages 2541 – 2620 of the printed record of proceeding and cannot locate any averment satisfying the conditions set out in paragraph 15 of the First Schedule to the Electoral Act No. 2 of 2006. The refusal, neglect or failure of the Appellant to satisfy the provisions of the said paragraph has the effect that the result tendered by the Petitioners/First Respondent herein, is unchallenged and uncontroverted.

3.14     To further seal the fate of the Respondents in this matter, RW1, INEC Head of Operations testified for the Respondents. However, the 2nd Respondent’s RW1 admitted during cross-examination by Counsel to the Petitioners that election was held on 23rd February, 2019, and that the election indeed produced a result. He stated thus:

“I was once subpoenaed by the Petitioners to give evidence and produce and tender documents. I am the Head of Operations and Logistics of INEC in Jos. I am familiar with electoral materials particularly results sheets. It is correct that the House of Representatives election for Jos North/Bassa Federal Constituency held on 23rd February, 2019. Election took place in Tudun Wada/Kabong Ward on the said date. For the election of 23rd February, 2019, INEC deployed Form EC8A(II) series for the Polling Units and Voting Points. We also deployed Presiding Officers to man the Polling Units and Voting Points. The Presiding Officers are accountable to INEC. INEC also deployed Forms EC8B(II) series for the Wards/Registration Areas. Tudun Wada/Kabong Ward was one of the wards that received EC8B(II) series. A Ward Collation Officer was deployed to Tudun Wada/Kabong Ward. I would not know the name of the ward collation officer for Tudun Wada/Kabong Ward. The Ward Collation Officer deployed by INEC to the Ward Collation Centre was responsible to INEC. The results sheets must bear the following features:

  1. The Logo
  2. The name of INEC
  3. The state where the Forms/Result sheets are to be used.
  4. The serial number must be on the result.
  5. The type of election for which it is to be used.
  6. It has alphabetical and numerical numbers for instance Form EC8A(II) for House of Representatives.
  7. It must have columns for recording of votes.
  8. At the end, the name of the Officer filling the Form must be written.
  9. A provisions for signature, date and stamp.

The various result sheets at the Polling Units, Voting Points, Ward Collation Centres, Local Government Collation Centre, Constituency Collation Centre and Final Declaration are printed in original and duplicates. When the originals are being filled, the entries reflect on the duplicates. The duplicates are given to Polling Unit Agents and Security Agents even at the Ward level. The same thing applies likewise at the Local Government Collation level and the rest of collation and declaration. Exhibits P126 is INEC Manual for Election Officials, 2019, same as Exhibit R71. Exhibit R72 is the Regulations and Guidelines for the Conduct of Election. These exhibits P126, R71 and R72 are designed to regulate the conduct of elections and the entire electoral process. I said the Local Government Collation Officee cancelled the election of Tudun Wada/Kabong Ward. I would not know if the power to cancel election at the Local Government Level is given to the Local Government Collation Officer by virtue of Exhibit R71, R71 and P126. What I however know is that the Presiding Officer has the power to cancel election at the Polling Unit and other Collation Officers also have the power to cancel election. I do not know the actual place where it is written in Exhibit R71, R72 and P126, that a Local Government Collation Officer has the power to cancel an election. On 23rd February, 2019, INEC deployed election materials and men in all the Polling Units in Tudun Wada/Kabong Ward in Jos North/Bassa Constituency. Elections took place in that ward on 23rd February, 2019. It was not my schedule to collate results at various levels of collation. Polling Unit results were not submitted to me because it is not my duty to receive same.

3.15     It is submitted that the answers elicited from RW1 constitutes an admission against interest and same supports the case of the Petitioners. See the cases of Dr. John Fayemi & 1 or vs Olusegun Oni & 7 ors (2010) 7 NWLR (Part 1222) page 326 at 395, paras B – D, University of Ilorin vs Rashieedat Adeshina (2010) 9 NWLR (Part 1199) page 331 at pages 405 and 406, paras F – B.

In view of the tacit admission of the 1st Respondent’s Official that election held at the polling units of Tudun Wada/Kabong Ward on 23rd February, 2019, it is submitted that having regards to the facts, circumstances and evidence adduced by the Petitioners, the Petitioners established that there was election at the respective polling units and collation of the result at the Ward Level at Tudun Wada/Kabong Ward. We urge this Honourable Tribunal to so hold.

3.16     It is submitted that having regards to the evidence adduced, the Petitioners have indeed established that election was validly, peacefully and conclusively held in all the 65 polling units of Tudun Wada/Kabong Ward of Jos North/Bassa Federal Constituency on 23rd February, 2019. The Petitioners have also proved that the votes scored by the Petitioners was the sum of 31,470 while the votes scored by the 2nd and 3rd Respondents was in the sum of 3,816 in Tudun Wada/Kabong Ward during the 23rd February, 2019 Election. We urge this Honourable Tribunal to so hold.

3.17     The next question then is: Does the Local Government Collation Officer for Jos North Local Government Area and/or the Federal Constituency (House of Representatives) Collation/Returning Officer for the Jos North/Bassa Federal Constituency of the 1st Respondent; have the power/vires to cancel the result of the Election validly held in all the Polling Units of Tudun Wada/Kabong Ward in Jos North/Bassa Federal Constituency on 23rd February, 2019:

On whether the Local Government Collation Officer for Jos North Local Government Area and/or the Federal Constituency (House of Representatives) Collation/Returning Officer for the Jos North/Bassa Federal Constituency of the 1st Respondent; have the power/vires to cancel the result of the Election validly held in all the Polling Units of Tudun Wada/Kabong Ward in Jos North/Bassa Federal Constituency on 23rd February, 2019. In answering this poser, recourse is made to the applicable Laws, Manual, Guidelines and Regulations guiding the conduct of the election. Section 27(1)(c) of the Eletoral Act, 2010 (as amended), provides:

27(1)    The results of all elections shall be announced by –

(c)        The Local Government or Area Council Collation Officer at the Local Government Area Council Centre.

3.18     From a calm reading of the provisions of Section 27(1)(c) of the Electoral Act, 2010 (as amended), it is clear that the Local Government Area Collation Officer has no power/vires whatsoever to cancel an election. His duty is to collate and announce the result as it is and no other..! This correct position is reinforced by the provisions of Paragraph 3.1(h) Step 1 to Step 11 of the Manual for Election Officials, 2019 and Paragraph 38(i)-(x) of the Regulations and Guidelines for the Conduct of Elections.

3.19     In the instant case, the man in the eye of the storm is PW6, the 1st Respondent, INEC’s Jos North Local Government Area Collation Officer who confirmed the Petitioners’ allegation that there was also collation at the Jos North Local Government Area Collation Centre in compliance with the provisions of Section 27(1)(c) of the Electoral Act, 2010 (as amended), Paragraph 30(i)-(x) of the Regulations and Guidelines for the Conduct of the Elections. In fact, the fact that results were indeed collated in the first instance is evident on the face of the Jos North Local Government Area Summary Result, Exhibit P14.

3.20     By paragraphs 5 – 12 of his adopted evidence, PW6 confirmed that election held in all the 65 polling units in Tudun Wada/Kabong Ward and that the results were collated by the Ward Collation Officer who also entered same into the Ward Summary Result Sheet and presented to him at the Jos North Local Government Area Collation Centre. PW6 also stated that he entered the results from the Tudun Wada/Kabong Ward into Column 13 of the Local Government Area Summary Result Sheet, INEC Form EC8C(II).

3.21     The reason given by PW6 was that while the collation of the result was ongoing, a physical fight broke out among some party agents who objected to the collation process hence collation was suspended. That he subsequently received directives from the Jos North Local Government Area Electoral Officer (EO) of the Independent National Electoral Commission (INEC) to cancel the result for Tudun Wada/Kabong Ward which he had already entered into the Form EC8C(II). He then cancelled the result. Interestingly, it would appear that the reason for the objection to the collation of result from Tudun Wada/Kabong Ward contained on the face of the Local Government Area Summary Result Sheet tendered and admitted as Exhibits P14 and P122, 122(A), 122(B) and 122(C) was an endorsement which states thus: Cancelled: EC8B not supported by Form EC8A 2 series.

3.22     The question is: is it within the duty of the Local Government Collation Officer to demand for the Form EC8B(II) to be supported by Form EC8A(II) series before he can collate and the absence of which would form a valid and legal ground for cancelling a result of an election. An election that was peacefully held and concluded at the respective polling units with results entered into the polling unit result sheets and announced by the respective polling unit presiding officers who subsequently submitted their polling unit results to the ward collation officer for collation at the ward collation centre, who in turn, duly collated and announced the result at the ward collation centre who also in turn proceeded to the Local Government Area Collation Centre and presented his Ward Collation Summary Result (in this case Form EC8B(II) tendered and admitted as Exhibits P13, 13(A), 13(B) and 13(C) and Exhibit P122, 122(B) and 122(C) for collation at the Local Government Area Collation Centre who in turn entered the results from Tudun Wada/Kabong Ward into his Local Government Area Summary Result Sheet, Form EC8C(II) (i.e. Exhibit P14)?

3.23     It is submitted that it does not lie in the hand of a Local Government Area Collation Officer to cancel results which emanated from a Polling Unit. The power to cancel a polling unit result resides only in a Presiding Officer of a polling unit. The situation in this Petition is aptly captured in the case of Doma v. INEC (2012) 13 NWLR (1317) 297 at 325; paras. F –G; where it was held per Fabiyi, JSC; thus:

“The report which should have been considered by the court below but was not, reads as follows:

“In Loco Registration Area, the Collation Officer cancelled the results of the election in Oshuga (004) because of incorrect and inappropriate entries in Form EC8A and EC8A(I)”

From the above, it is cleat that the result was cancelled by DW3, a collation officer and not DW9, the presiding officer, who had the vires to do same at the polling unit.”

His Lordship Muntaka-Coomassie, JSC, also held at page 328, paras. C – D thus:

“What baffles me the most is the fact that the result of the election was shamelessly cancelled and voided by a collation officer and not by the presiding officer, DW9 who has the power in law to have done so at the relevant polling unit. How can DW3, a collation officer, have the guts of cancelling the result of a whole election and that action would be accepted.”    

3.24     The above position of the law was re-stated in the case of Nwokolo v. Uboh (2012) 17 NWLR (Pt. 1330) 604 at 611, paras. B – E; where it was held thus:

“In the instant case, from the pleadings and evidence led; election was held in the polling units and wards that made up the Ika North-East LGA. At that state what remained was announcement of the scores of the candidates which would flow from the collation of the various results. Apart from the bald evidence of PW1 that the results came late, there was no evidence that the collation of the final results was disrupted or made impossible. Malpractices and fraud were not for the Returning Officer to determine but for a tribunal to determine in an election petition challenging an election.

The election having been held in Ika North-East LGA as borne out of the evidence lead, it was for the Returning Officer to have declared the result of the election by deciding on the scores of the candidates under Section 68(1) of the Electoral Act leaving an aggrieved party with his options under the Act and not for him to declare the election inconclusive.

He had no power to do so. His action was, therefore, ultra vires and void.”

3.25     The import of the decisions in Doma v. INEC and Nwokolo v. Uboh quoted above is that once there is result from the polling units, the Collation Officer at any level has no other duty than to collate and announce the result submitted to him. We urge this Honourable Tribunal to so hold.

3.26     It is further submitted that the reason for the cancellation advanced by the Respondents is also not supported by the Manual for Election Officials, 2019 and Guidelines for the Conduct of the Election, Exhibits P126, R71 and R72, respectively.

3.27     Paragraph 3.1(h) Step 1 to Step 11 (at pages 58-59 thereof) of the Manual for Election Officials, 2019 (Exhibits P126 and R71), clearly spells out the duties and functions of a Local Government Area Collation Officer during collation of Federal Constituency Results at the Local Government Area Level such as in the instant case.

Step 1:

“Take delivery of all the original copies of forms EC8B(II) from Registration Area/Ward Collation Officers together with other materials and reports relating to the election including Forms 40(G) and 40H(I), if any.”

Step 2:

Collate the results for the Federal Constituency (House of Representatives) election by entering the votes in the original copies of forms EC8C(II) in figures and words in the space provided.

Step 3:

Add up the RA/Wads results to obtain the LGA summary.

3.28     Paragraph 38(i)-(x) (at pages 20-21 thereof) of the Regulations and Guidelines for the Conduct of Elections (Exhibit R72), also clearly spells out the duties and functions of a Local Government Area Collation Officer during collation of Federal Constituency Results at the Local Government Area Level such as in the instant case.

  1. Take delivery of all the original copies of forms EC8B(II) from Registration Area/Ward Collation Officers together with other materials and reports relating to the election including Forms 40(G) and 40H(I), if any.

 

  1. Collate the results for the Federal Constituency (House of Representatives) election by entering the votes in the original copies of forms EC8C(II) in figures and words in the space provided.

 

  • Add up the RA/Wards results to obtain the LGA summary.

3.29     It is submitted that a careful reading through the provisions of Paragraph 3.1(h) Step 1 to Step 11 of the Manual for Election Officials, 2019 and Paragraph 38(i)-(x) of the Regulations and Guidelines for the Conduct of Elections would reveal that the only document of paramount importance the Local Government Collation Officer needs to collate results at the Local Government Area level is FORM EC8B(II) and not FORM EC8A(II) as erroneously contended by the Respondents herein. Based on the law, Manuals and Guidelines for the conduct of the election, the Local Government Area Collation Officer has no direct business with Forms EC8A(II) for the purpose of collation.

3.30     It is noteworthy that the Ward Collation Officer in Tudun Wada/Kabong Ward, PW5, gave unchallenged evidence in proof of the fact that he submitted the original Forms EC8B(II) to the Local Government Area Collation Officer, PW6. Furthermore, the respective Respondents clearly admitted that PW5, the Ward Collation Officer submitted Form EC8B(II) to the Local Government Area Collation Officer in their pleadings thus:

 

  1. The 2nd Respondent admitted in Paragraphs 21, 22, 24 and 28 of the 2nd Respondent’s Reply to the Petition that PW5, the Ward Collation Officer submitted Form EC8B(II) to the Local Government Area Collation Officer.

 

  1. The 3rd Respondent admitted in paragraphs 5(e) of the 2nd Respondent’s Reply to the Petition that PW5, the Ward Collation Officer submitted Form EC8B(II) to the Local Government Area Collation Officer.

3.31     What Exhibits P126, R71 and R72 requires the Ward Collation Officer to submit to the Local Government Area Collation Officer is just the original Form EC8B(II). In the instant case, all the parties are agreed that the original Form EC8B(II) was submitted to the Local Government Area Collation Officer in this case. If the law or the manual and guidelines intended the Ward Collation Officer to submit the Form EC8A(II) series to the Local Government Area Collation for the purpose of collation at the Local Government Area level, the law or manual and guidelines would have expressly stated so. Off course, the law or manual or guidelines did not state so because the Form EC8A(II) series are not required for the purpose of collating results at the Local Government Area level. We urge this Honourable Tribunal to so hold. In Grosvernor Casinos Ltd. v. Halaoui (2009) 10 NWLR (Pt. 1149) 309 at 349, paras. E-G; it was held that where a statutory provision is clear and unambiguous, the duty of the court is to give effect to the ordinary plain meaning of the words without resorting to any external aid. It must be noted that it is the law that the express mention of a thing means the exclusion of any other thing not expressly mentioned.

3.32     It is imperative to note that the respondent did not adduce any evidence in rebuttal of the hard evidence presented by the Petitioners. The Petitioners presented witnesses from the polling units up to the Ward and Local Government Area level thereby effectively discharging the burden placed on the Petitioners by law. It is submitted that on the balance of probabilities the Petitioners’ case far outweighs that of the case presented by the Respondents cumulatively. This Honourable Tribunal is urged to resolve this issue in favour of the Petitioners.

4.0       ISSUE NO. 2

Whether election was validly held in all the Polling Units in Abba Na Shehu Ward Code: 01, Ali Kazaure Ward Code: 02, Garba Daho Ward Code: 03, Ibrahim Katsina Ward Code: 05, and Naraguta ‘A’ Ward Code: 09; in Jos North/Bassa Federal Constituency on 23rd February, 2019.

4.01     The second arm of the Petitioners claim which is at Paragraph 22(B) at pages 40–42 of the Petition is that in some Wards of Jos North/Bassa Federal Constituency, there was no election in the polling units and there was no proper collation of result in the Ward Summary Result Sheet as the Ward Collation Officer of the 1st Respondent unlawfully allocated votes to the 2nd and 3rd Respondents in FORM EC8B(II) and FORM EC8C(II), respectively, which were not borne out of the election that was held on 23rd February, 2019; and the unlawful scores were subsequently added to the 2nd and 3rd Respondents’ overall scores to give the 2nd and 3rd Respondents undue advantage over the Petitioners. The Polling Units and Wards were pleaded by the Petitioners.

4.02     In response to the Petitioners’ allegation in this regard, the 2nd Respondent denied the allegation and positively asserted that election held in all the Polling Units listed in the affected Wards listed in the Petition. See, Paragraphs 45, 46 and 47 of the 2nd Respondent’s Reply to the Petition.

4.03     By Paragraphs 5(a)-(g) at pages 5– 9 of the 3rd Respondent’s Reply to the Petition, the 3rd Respondent also positively asserted that elections held in the listed polling units and went a step further to plead the scores of the respective political parties.

4.04     It is submitted that given the peculiar nature of this complaint made by the Petitioners which is an assertion in the negative, the burden therefore lay on the 2nd and 3rd Respondents who have asserted in the positive to prove their allegations. See, Igbeke v. Emordi (2010) 11 NWLR (Pt. 1204) 1 at 49:

“It is trite that the burden of proof lies on whoever asserts the positive but not the negative. Where issues are joined by parties, the burden of proof lies on the part alleging the existence of the fact.

4.05     In the instant case, the 2nd and 3rd Respondents who alleged in the positive that elections held in the Polling Units in Abba Na Shehu Ward Code: 01, Ali Kazaure Ward Code: 02, Garba Daho Ward Code: 03, Ibrahim Katsina Ward Code: 05, and Naraguta ‘A’ Ward Code: 09; in Jos North/Bassa Federal Constituency on 23rd February, 2019, failed to prove their claim. This Honourable Tribunal is urged to so hold.

5.0       ISSUE NO. 3

Whether the election and return of the 2nd Respondent as the member of the House of Representatives for the Jos North/Bassa Federal Constituency was held in substantial compliance with the provisions of the Electoral Act.

 

5.01     It is submitted that on the preponderance of evidence the Petitioners have proved the complaint of substantial non compliance of the 1st Respondent in the conduct of the election for seat of Member representing Jos North/Bassa Federal Constituency. It is submitted that an appraisal of the facts and evidence in this case would reveal that indeed the election and return of the 2nd Respondent as the Member of the House of Representatives for Jos North/Bassa Federal Constituency was not held in substantial compliance with the provisions of the Electoral Act, 2010 (as amended).

5.02     The Petitioners herein adduced credible evidence of the unlawful cancellation of the Tudun Wada/Kabong Ward result. The election and return of the 2nd Respondent ought to be invalidated. This is more so, that neither the Electoral Act, 2010 (as amended) nor the Manual and Guidelines for the Conduct of the Election empower a Local Government Area Collation Officer to cancel results of an election. By Section 27 of the Electoral Act, 2010(as amended), Paragraph 3.1(h) Step 1 to Step 11 of the Manual for Election Officials, 2019 and Paragraph 38(i)-(x) of the Regulations and Guidelines for the Conduct of Elections, the Local Government Area Collation Officer’s main duty is to only receive the original Form EC8B(II) from the Ward Collation Officer, enter same into Form EC8C(II) and announce the results, that is all. In the intant case, the Local Government Area Collation Officer for Jos North Local Govenment Area during the House of Representatives Election held on 23rd Febraury, 2019, completely violated the provisions of Section 27 of the Electoral Act, 2010(as amended), Paragraph 3.1(h) Step 1 to Step 11 of the Manual for Election Officials, 2019 and Paragraph 38(i)-(x) of the Regulations and Guidelines for the Conduct of Elections. In the case of Buhari v INEC (2008) 19 NWLR (Pt. 1120) 246 at 442, para. H, it was held by Musdapher, JSC thus:

Substantial compliance in this situation means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court or tribunal should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted.”

5.03     Once it is established that the provisions of the regulating statute such as in this case, The Electoral Act, 2010 (as amended), the Manual for Election Officials, 2019 and the Regulations and Guidelines for the Conduct of Elections has not been complied with substantially, the return of the 2nd Respondent ought to be nullified. We urge this Honourable Tribunal to so hold.

6.0       REPLY TO THE 2ND RESPONDENT’S FINAL WRITTEN ADDRESS

6.01     REPLY ON THE ADMISSIBILITY OF EXHIBITS P1 TO P127:

Learned counsel also argued that the above listed documents are inadmissible on the basis that they are results of polling units, wards and local government collation which ought not to be tendered from the Bar. However, these documents are duplicate copies of results from polling units, wards and Local Government Areas.

6.02     With the greatest respect, these exhibits, being duplicate copies of INEC result sheets are admissible from the Bar.

6.03     This point was well made in Samuel Onu Aja v Abba Odin (2010) LPELR-9131(CA); where Oseji, JCA held at PAGES 13-15: put it as follows:

‘’It seems to me that duplicates or carbon copies of results given to agents of political parties that participated in the election can be tendered and admitted in evidence without much ado about having them certified. Such carbonated copies are as good as the original copy within the contemplation of section 94(4) of the Evidence Act and this constitutes primary evidence…It does not call for the application of the provisions of section 111(1) of the Evidence Act as contended by the learned senior counsel for the Appellant. In this regard, I find support from the decision of this court in Jacob v Attorney General of Akwa Ibom State (2002) FWLR (Pt. 86)578 where it was held per Ekpe, JCA at page 591 as follows:’’ There is an ocean of difference between in our law between a duplicate copy and a photocopy of that document…In this case, it is not in dispute that that exhibits 25-39 are duplicate or carbon copies and this qualifies them as primary evidence. They are therefore admissible in evidence as original documents.

6.04     Similarly, it is respectfully submitted that duplicate copies of election results are primary copies having the status of originals which require no certification. This point was made well made in Okoh v Igwesi (2005) All FWLR (Pt 264) 891 CA where the court put it as follows:

“Put briefly, it is the original result sheet with INEC or the duplicate original issued to the 1st Respondent or a certified true copy of same that is worthy of credence or any probative value.’’

6.05     We submit with due respect that the said documents were pleaded, relevant and were tendered in admissible forms. Where a document is duly pleaded and relevant, it does not matter whether the said document was tendered from the bar or not, what the Tribunal should bother itself with is whether the document is indeed admissible. The Court of Appeal in the case of Mr. Olayinka S. Bowale v. Mr. Adebayo Adebola Adekoya (2015) LPELR-41815 (CA) pages 26-27, paras B-C; held that;

“Duplicates or carbon copies of result given to agents of political parties that participated in an election can be tendered and admitted in evidence without having them certified though document is classified as public document. Such a carbonated copy is as good as the original copy within the contemplation of Section 86 (4) of the Evidence Act, 2011 and it constitutes Primary Evidence. Section 86 of the Evidence Act provides: (1) primary evidence means the document itself produced for the inspection of the court, (2) where documents has executed in several parts, each part shall be primary evidence of the document, (3) where a document has in executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it. (4) where a number of documents have all been made by one uniform process, as against the parties as in the case of printing, lithograph, photograph, computer or other election or mechanical process, each shall be primary evidence of the rest”

From the above cited authority, it is clear that the documents being challenged by the 3rd Respondent are all admissible documents and can be tendered either through a witness or through the Bar as was done by the Petitioners in this case. The said documents were not only tendered from the Bar, witnesses from respective polling units were called by the Petitioners as witnesses to demonstrate the contents of the documents during trial. In the light of the above, the argument of learned counsel is totally misplaced and the cases cited inapplicable. Some of the documents, contrary to the submission of 2nd Respondent, were tendered through witnesses while others were tendered from the bar and witnesses were called to identify them consequent upon the adoption of their witness statement on oath filed alongside with the petition. We urge this Honourable Tribunal to overrule the objection raised by the 2nd Respondent.

6.06     REPLY TO THE 2ND RESPONDENT’S SUBMISSIONS ON THE MERIT:

6.07     In response to paragraphs 26 and 27 of the 2nd Respondent’s Final Written Address, it is now even clearer that there is no law be it statutory or a decided case that supports the submissions of the 2nd Respondent that the Local Government Area Collation Officer has the power/vires to cancel results that emanated from the polling units and ward level.

6.08     The 2nd Respondent’s submissions at paragraph 28, 29 and 30 of the 2nd Respondent’s Final Written Address relying on the evidence of the INEC Head of Operations, 1st Respondent’s RW1, to urge the Tribunal to find and hold that the Local Government Collation Officer has the power to cancel an election is rather strange and unsupported by any law. This is more so, that the same 1st Respondent’s RW1 admitted during cross examination by Counsel to the Petitioners that the 1st Respondent, INEC, is guided by the Electoral Act, 2010 (as amended), and the Manual and Guidelines regulating the conduct of the elections. But alas! RW1 failed to show the Tribunal where the powers he claimed reside in collation officers to cancel results is provided for in the applicable laws or manual.

6.09     Furthermore, the evidence of the 1st Respondent’s RW1 cannot by any stretch of imagination override the evidence of the officials on ground on the date of the election. PW5 gave evidence that he collated polling unit results from the Forms EC8A(II) submitted to him by the respective Presiding Officers into Form EC8B(II) on the date of the election. The 1st Respondent’s RW1 admitted that he was not at any of the polling units of Tudun Wada Ward or at the Ward Collation Centre. His evidence in this regard is therefore without basis and should be discountenanced accordingly because it is hearsay evidence.

6.10     In response to the submissions contained in paragraphs 32, 33, 34, 35, 36 and 37 of the 2nd Respondent’s Final Written Address, it is submitted that contrary to the 2nd Respondent’s claim, there is ample oral and documentary evidence that there was election in all the polling units of Tudun Wada/Kabong Ward and subsequent collation at the Ward Collation Centre. The implication of this is that there is also ample evidence that the provisions of Paragraph 3.1(b) Step 1 to Step 16 of the Manual for Election Officials, 2019 and Paragraph 28(i)-(xv) of the Regulations and Guidelines for the Conduct of Elections, relating to collation of results at the Ward Collation Centre in this case was complied with. We refer this Honourable Tribunal to the evidence of PW1 to PW4, PW7 to PW58 and Exhibits P to P125.

6.11     Contrary to the 2nd Respondent’s submission in paragraph 38 of the 2nd Respondent’s Final Written Address, it is submitted that no collation officer at any level whatsoever has the power/vires to cancel result of a polling unit after election was validly held and the Presiding Officer has submitted a result. It is only a Presiding Officer that has power to cancel a polling unit result which is not the case in this Petition and submit a report to that effect to the Collation Officer.

6.12     This Honourable Tribunal is urged to discountenance the submissions in paragraph 40 of the 2nd Respondent’s Final Address as the submissions contained therein are not supported by the evidence before the Tribunal. The 2nd Respondent merely pleaded facts which were not supported by evidence. No evidence was led by the 2nd Respondent to show that anyone was arrested. PW5, the INEC Ward Collation Officer for Tudun Wada/Kabong Ward testified before the Tribunal and no evidence was elicited from him regarding any purported arrest. It is clear that the issue of arrest raised by the 2nd Respondent remained in the realm of pleadings and since no credible evidence was adduced in support of same, it is deemed abandoned. Please see Alao v. Akano (2005) 11 NWLR (Pt.935) at 180, where Akintan, JSC amongst others stated this and said: –

“…The law is settled that where issues are joined on any averment in the pleadings but no evidence is led to support such averment, the result is that such averment in the pleadings is either to be struck out or be dismissed. In other words, such averment could be treated as having been abandoned.”

6.13     Contrary to the 2nd Respondent’s submission in paragraph 41 and 42 of the 2nd Respondent’s Final Written Address, it is submitted that PW5 stated vide paragraphs 12 and 13 of his adopted evidence that he submitted the Ward Summary Result alongside the Forms EC8A(II) series to PW6, the Local Government Area Collation Officer. Interestingly, this fact is corroborated by the entries in Column 13 of Exhibit 14, which clearly shows that entries were made for Tudun Wada/Kabong Ward only to be subsequently cancelled.

6.14     Contrary to the 2nd Respondent’s submission in paragraph 42 of the 2nd Respondent’s Final Written Address, it is submitted that the contention that the original results were not produced by the Petitioners is incongruous. The Petitioners bear no burden to produce INEC’s copies of the result sheet. Political parties and their candidates who participate in an election are entitled under the law to duplicate copies of result sheets which in the eyes of the law are original documents. Exhibits P to P122C are in themselves original results and ought to be treated as such. This point was well made in Samuel Onu Aja v Abba Odin & Ors (2010) LPELR-9131(CA) where Oseji, JCA at pages 13-15; or (2011) 5 NWLR (Pt. 1241) 509 at 531-532; put it as follows:

‘’It seems to me that duplicates or carbon copies of results given to agents of political parties that participated in the election can be tendered and admitted in evidence without much ado about having them certified. Such carbonated copies are as good as the original copy within the contemplation of section 94(4) of the Evidence Act and this constitutes primary evidence…It does not call for the application of the provisions of section 111(1) of the Evidence Act as contended by the learned senior counsel for the Appellant. In this regard, I find support from the decision of this court in Jacob v Attorney General of Akwa Ibom State (2002) FWLR (Pt. 86)578 where it was held per Ekpe, JCA at page 591 as follows:’’ There is an ocean of difference between in our law between a duplicate copy and a photocopy of that document…In this case, it is not in dispute that that exhibits 25-39 are duplicate or carbon copies and this qualifies them as primary evidence. They are therefore admissible in evidence as original documents.

6.15     Similarly, it is respectfully submitted that duplicate copies of election results are primary copies having the status of originals which require no certification. This point was made well made in Okoh v. Igwesi (2005) All FWLR (Pt 264) 891 CA where the court put it as follows:

‘’Put briefly, it is the original result sheet with INEC or the duplicate original issued to the 1st Respondent or a certified true copy of same that is worthy of credence or any probative value.’’

6.17     Furthermore, it is imperative to note that the infraction complained of which forms the crux of the Petitioners complaint is directed at INEC, the 1st Respondent in this Petition. The electoral umpire, INEC who is sued as the 1st Respondent did not contest the Petition as it failed to file a Reply to the Petition as required by Paragraph 12 of the First Schedule to the Electoral Act, 2019 (as amended). Therefore, it does not lie in the mouth of the 2nd Respondent to argue that there is no original Form EC8A(II) series because INEC did not say so. The 1st Respondent did not file any reply to the Petition alleging that the original result sheets are not with INEC. The 1st Respondent (who is at the centre of the unlawful cancellation of the result of the elections in the entire Polling Units in Tudun Wada/Kabong Ward) conceded to the Petitioners claims having failed to defend the matter as required by law. See the case of DR. OLUSEGUN AGAGU & ORS V. RAHMAN OLUSEGUN MIMIKO & ORS (2009) LPELR-21149(CA) Per ABDULLAHI, JCA (Pp. 6-7, para F) or (2009) 7 NWLR (PT 1140) 342 at 386, paras. D – H; where it was held on the effect of the failure of a respondent to file reply to a petition:

“The second Respondent/Appellant as well as the third to fourteenth Respondents/Appellants failed to file replies to the Petition and have by their conduct or default admitted the averments in the Petition, which are left unchallenged, and uncontroverted or uncontradicted – see Haway vs Mediowa (2000) 13 NWLR (Pt 683) 77, United Nigeria Insurance Co. Ltd vs Universal Commercial & Industrial Co. Ltd (1999) 3 NWLR (Pt 593) 17, 25, Akibu v Oduntan (1992) 2 NWLR (Pt 222) 210 at 226.

In such circumstance, the law does not require proof of impliedly admitted facts and where proof is even required, only a minimal evidence would be necessary to ground the claim – See Balogun vs. UBA (1992) 6 NWLR (Pt 247) 266, Egbunike vs. ACB (1995) 2 SCNJ 58, 78. With regard to the interlocutory appeal by INEC complaining of the refusal by the Tribunal to grant the extension of time sought to file their joint reply to the Petition, it is my view that even if it succeeds, it will be of no moment in this appeal because they led no evidence. After all, public policy demands that there should be an end to litigation.

6.18     If as in the instant case, INEC failed to produce the original Form EC8A(II) series while the Petitioners tendered their duplicate original copies alongside the duplicate original copies handed over to the police, could it really be said that the Petitioners did not back up their allegations with cogent evidence? Certainly not! It is submitted that the 1st Respondent withheld the INEC Form EC8AII because the 1st Respondent new that if the said Forms were produced it would have been against its interest.

6.19     Contrary to the 2nd Respondent’s submissions in paragraphs 43, 44, 45, 46 and 47 of the 2nd Respondent’s Final Address, there is no allegation made by any of the Respondents of falsification or alteration or forgery of result sheets. It is submitted that in the absence of evidence to the contrary adduced by the Respondents, particularly the 1st Respondent, INEC; Exhibits P to P122C are genuine evidence of results that emanated from the election. In the circumstance, having placed these documents before the Tribunal, this Honourable Tribunal is enjoined to look at same in other to determine whether indeed the allegations of the Petitioners are borne out. See, Aja v. Odin (2011) 5 NWLR (Pt. 1241) 509 at 533:

 “Admission of the documents as exhibits to my mind does not constitute reception or hearsay evidence by the lower tribunal. The only issue that may arise in such a situation is the prevailing circumstances which includes whether the origin of the said exhibits was doubtful or whether the INEC officials, that is the 4th to 99th respondents contested or denied their existence or authenticity. There is nowhere in the record of proceedings at the lower tribunal where this was shown to have been done.”

6.20     In any case, Section 155 of the Electoral Act, 2010 (as amended); validates any defect on any form such as Exhibits P – 122C. It provides:

“Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or other thing whatsoever done by him in pursuance of the provisions of the Constitution or of this Act, or any rules made there under remain valid, unless otherwise challenged and declared invalid by a competent Court of Law or Tribunal.”

6.21     In the instant case, the 1st – 3rd Respondents did not plead any defect in challenge of the results issued to the Petitioners. The Respondents’ case is that there was no election in Tudun Wada/Kabong Ward. They are bound by their pleadings and estopped from challenging the results of the Petitioners thereby. It is submitted that it is now a very well settled principle of law that parties are bound by their pleadings. It is not relevant to the proceedings as same was never made an issue in the pleadings. See the case of Vinz Int’l (Nig.) Ltd v. Morohundiya (2009) 11 NWLR (Pt. 1153) 580, paras. E-F:

“Not only are parties bound by their pleadings, the court is also bound by the pleadings and to allow a party to lead evidence and contend otherwise than pleaded equals to making a case contrary to pleadings and thereby permitting the party to approbate and reprobate.”

See also the cases of PDP v. Sylva (2012) 13 NWLR pt 1316 pg 85 at 127 F-G; Phillips V E.O.C. & Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618 at 644, paras. D – F; U.B.N. Plc. v. Ajabule (2011) 18 NWLR (Pt. 1278) 152 at 173 paras. A – B.

6.22     Contrary to the 2nd Respondent’s submissions in paragraph 48 of the 2nd Respondent’s Final Address, the video contained in Exhibit P128 was tendered to rebut the 2nd Respondent’s allegation that there was no collation and announcement of result at the Ward level. PW58 in paragraph 6, 7, 8 and 9 of his adopted evidence in response to the 2nd Respondent’s Reply to the Petition clearly stated that:

  1. That I was at the Collation Centre and witnessed when the Ward/Registration Area Collation Officer, Mr. Anthony Mgbojikwe, collected the polling unit results presented to him by the respective Presiding Officers and collated the results for all the 65 Polling Units in Tudun Wada Ward into Form EC8B(II), in the presence of all the political party agents after which the political party agents signed,

 

  1. That the Ward/Registration Area Collation Officer thereafter announced the scores for the two major political parties with the 2nd and 3rd Respondent’s scoring a total of 3,816 votes, while the Petitioners scored a total of 31,470 votes.

 

  1. That before the Ward Collation Officer announced the result, I and many people around recorded the result announcement on our mobile phones which I later transferred and saved on a flash drive. I can identify the Video Recording and the device it is stored in together with the certificate of identification during trial.

 

  1. That the Ward/Registration Area Collation Officer announcement of the result was made in the presence of the Divisional Police Officer (DPO) of “A” Division Jos and can be seen in the video recording.”

6.23     PW58’s testimony which was corroborated by the video in Exhibit P128, point irresistibly at only one conclusion, and that is that there was election which produced results at the polling units level which was also collated at the Ward Collation Centre into Exhibit P13, 13A, 13B, 13C also replicated in Exhibit P122, 122A, 122B and 122C.

6.24     It is submitted in response to Paragraph 49 of the 2nd Respondent’s Final Address, that PW5 is a competent and qualified witness who worked as INEC Ward Collation Officer during the election on 23rd February, 2019. PW5 does not need the permission of INEC to testify before the Tribunal. He was shown the original duplicate of the result he produced on 23rd February, 2019, Exhibits 12, 13A, 13B and 13C which he affirmed. PW5 was seen clearly in the video captured in Exhibit P128 announcing the duly collated result. There is no evidence to the contrary either challenging Exhibit 128 or challenging PW5 as being the authentic INEC Ward Collation Officer. The only conclusion that can be arrived at is that PW5’s evidence remained unassailable. We urge this Honourable Tribunal to so hold.

6.25     It is submitted that the submissions contained in paragraph 51 of the 2nd Respondent’s Final Address is only meant to mislead the Tribunal when it was submitted that: “the various Collation Officers are mandated to take delivery of all the original copies of the various species of Forms EC8”. This piece of submission is not supported by any evidence led during the hearing of this petition. While it is conceded that the respective Presiding Officers are required to present the original Forms EC8A(II) to the Ward Collation Officer for collation of result at the Ward level as provided for in Paragraph 2.6(e) Step 8 of Exhibit P126 and R71 and Paragraph 22(c)(xi) of Exhibit P72; the same duty is not imposed on the Ward Collation Officer. Contrary to the submissions of the 2nd Respondent, for the purpose of collation at the ward level, the Ward Collation Officer is required to take custody of and submit the Original Form EC8B(II) to the Local Government Collation Officer and not Form EC8A(II). See, Paragraph 3.1(b) Step 15 of Exhibits P126 and R71:

Take custody of the original copies of Forms EC8B, EC8B(I) and EC8B(II) together with other materials and equipment and reports (if any) received from Presiding Officers at the election to the LGA Collation Centre.

Paragraph 28(b)(xiv) at page 13 of Exhibit R72:

Take custody of the original copies of Forms EC8B, EC8B(I) and EC8B(II) together with other materials, equipment and reports (if any) received from Presiding Officers at the election to the LGA Collation Centre.

6.26     To further buttress the point being made by the Petitioners that what the Ward Collation Officer needs to submit at the Local Government Collation Level for the purpose of collation is Form EC8B, a look at the provisions of Paragraph 3.1(c) of Exhibit P126 and R671 and Paragraph 38(i) of Exhibit R72 clearly states that the Local Government Area Collation Officer shall take delivery of all the original copies of Forms EC8B(II) from the Registration Area/Ward Collation Officers. The Local Government Collation Officer has no business with Form EC8A(II) for the purpose of collation of result. His duty is to collate and announce the result as presented to him by the Ward Collation Officer in Form EC8B(II).

6.27     In response to the 2nd Respondent’s submissions in paragraphs 52 to 57 of the 2nd Respondent’s Final Written Address, the Petitioners state that INEC, the 1st Respondent herein, has not complained of the whereabouts of the Polling Unit Result in this Petition. No pleading was made or evidence led by the body in charge of the election. INEC has not declared the result missing either. Neither was any pleading to that effect made by the 1st Respondent.

6.28     Contrary to the 2nd Respondent’s submissions, the Petitioners have no duty to tender the original result. The duplicate originals given to the Petitioners were presented before this Honourable Tribunal. Also the duplicate originals given to the Police were tendered.                                                                                                                                                                              6.29     It is submitted that the case of Hope v. Elleh cited by the 2nd Respondent does not aid the 2nd Respondent’s case because while it is agreed that Forms EC8A series form the bedrock of the election pyramid, unlike in Elleh’s case where none was tendered, in this case there is ample evidence of Form EC8A(II) series tendered and admitted as Exhibits P – P12, P15 – P 121 before this Honourable Tribunal. There is no law that states that a Petitioner must tender only the INEC copies. Certainly, there is also no duty on the Petitioners herein to explain the whereabouts of the INEC copies. PW5 stated that he submitted the original results sheets to the Local Government Collation Officer contrary to the 2nd Respondent’s claim. INEC as a body is free to do as it pleases with its copies of the result sheets and if it wishes not to tender same as in this case, INEC, the 1st Respondent in this case, is bound by the duplicate originals tendered by the Petitioners.

6.30     In any case, whether or not the INEC has the original is of no relevance to this case. Section 27(1) of the Electoral Act, 2010 (as amended) and Exhibit P126, R71 and R72 do not empower the Local Government Area Collation Officer to cancel result. The only instance where collation officers may be allowed to make reports of cancellation is, if and only if, the Presiding Officer cancels a result of a Polling Unit either because of over-voting, or none holding of election or when an election is declared null and void, then the Presiding Officer is legally required to make a report of such by filling and submitting Form EC40G. See, Paragraph 2.6(b) Step 13(e) at page 35 of Exhibit P126 and P71 and Paragraph 26 of Exhibit R72.

6.31     The 2nd Respondent who has made heavy weather of the fact that there was no election and/or that the election was cancelled, did not tender Form EC40G. In the absence of this material piece of evidence which would have established the 2nd Respondent’s claim that no election was held at the polling units of Tudun Wada/Kabong Ward was not tendered. This Honourable Tribunal is urged to discountenance the submissions of the 2nd Respondent on this score.

6.32     Of note is the fact the 2nd Respondent’s pleadings regarding where collation was done is clearly contradictory and ought not to be relied on. The 2nd Respondent’s case as contained in his pleading at paragraphs 21 and 25 of his Reply to the Petition that the 1st Respondent’s Collation Officer for Tudun Wada/Kabong R.A. presented the result at Jos South Local Government Collation Centre as opposed to the appropriate collation centre which is at Jos North Local Government Area Collation Centre. It is submitted that the 2nd Respondent is bound by its pleadings and in view of the fact that there is a material contradiction on where the 2nd Respondent’s agent were located, this Honourable Court is urged to reject the defence put up by the 2nd Respondent. The 2nd Respondent is bound by his pleadings and must sink or swim with his pleadings. In the case of Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353 pg 376 at 397, paras. D-E the Supreme Court per Rhodes-Vivour JSC held as follows:

“The long laid down position of the law is that a party should be consistent in stating his case and consistent in proving it…. That is the importance of pleadings. A party must confine himself to his pleadings.”

See also the case of Vinz Int’l (Nig.) Ltd v. Morohundiya (2009) 11 NWLR (Pt. 1153) 580, paras. E-F:

“Not only are parties bound by their pleadings, the court is also bound by the pleadings and to allow a party to lead evidence and contend otherwise than pleaded equals to making a case contrary to pleadings and thereby permitting the party to approbate and reprobate.”

6.33     In response to the arguments contained in paragraphs 59 to 70 of the 2nd Respondent’s Final Address, it is submitted that the Petitioners herein adduced credible evidence in proof of their allegation of the unlawful cancellation of the Tudun Wada/Kabong Ward result. The election and return of the 2nd Respondent in this case ought to be invalidated. This is more so, that neither the Electoral Act, 2010 (as amended) nor the Manual and Guidelines for the Conduct of the Election empower a Local Government Area Collation Officer to cancel results of an election. Therefore, Exhibits P126, R71 and R72 did not confer any legal right on the Local Government Area Collation Officer or any other INEC Collation Officer the power to cancel polling unit results. We urge this Honourable Tribunal to so hold. See, N.D.P. v. INEC (2012) 4 NWLR (Pt. 1319) 176 at 197-198, paras. H-C; where the Court of Appeal held thus:

“A vested right is a right held by somebody in something to his advantage and interest. A vested right accrues to the owner or holder who has it for keeps as the allodial owner. In order to lay claim to and enjoy a vested right, it should not be encumbered or weighed down by any other competing right. A vested right can be so recognized by law if it is really vested in the holder. Where a vested right is founded or predicated on a document which in law and in fact, does not and cannot donate the so-called right, then no right in law passes to the claimant of the right. This is because the document which is assumed or presumed to pass the right did not do so in law. In other words, where a claim to a vested right is premised on a wrong footing, the so-called vested right must collapse and with no ado or fanfare.

6.34     By Section 27 of the Electoral Act, 2010(as amended), Paragraph 3.1(h) Step 1 to Step 11 of the Manual for Election Officials, 2019 and Paragraph 38(i)-(x) of the Regulations and Guidelines for the Conduct of Elections, the Local Government Area Collation Officer’s main duty is to only receive the original Form EC8B(II) from the Ward Collation Officer, enter same into Form EC8C(II) and announce the results. Tthat is all. In the intant case, the Local Government Area Collation Officer for Jos North Local Government Area during the House of Representatives Election held on 23rd February, 2019, completely violated the provisions of Section 27 of the Electoral Act, 2010 (as amended), Paragraph 3.1(h) Step 1 to Step 11 of the Manual for Election Officials, 2019 and Paragraph 38(i)-(x) of the Regulations and Guidelines for the Conduct of Elections. In the case of Buhari v INEC (2008) 19 NWLR (Pt. 1120) 246 at 442, para. H, it was held by Musdapher, JSC thus:

Substantial compliance in this situation means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court or tribunal should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted.”

6.35     Once it is established that the provisions of the regulating statute, such as in this case, the Electoral Act, 2010 (as amended), the Manual for Election Officials, 2019 and the Regulations and Guidelines for the Conduct of Elections, have been violated, and a miscarriage occasioned by the alleged breach which has also affected the overall result of the election, the conclusion is that the 1st Respondent and its Officials have not substantially complied with the provisions of the law, and the return of the 2nd Respondent ought to be nullified. We urge this Honourable Tribunal to so hold.

7.0       CONCLUSION

 On the whole, we urge Your Lordships to grant the Petitioners prayers accordingly and declare that the 2nd Respondent was not duly elected by majority of lawful votes cast in the House of Representatives Election for Jos North/Bassa election held on 23rd February, 2019 and 9th March, 2019, and that his election is void on the following grounds:

 

  1. That the Local Government Collation Officer for Jos North Local Government Area and/or the Federal Constituency (House of Representatives) Collation/Returning Officer for the Jos North/Bassa Federal Constituency of the 1st Respondent; have no power/vires to cancel the result of the Election validly held in all the Polling Units of Tudun Wada/Kabong Ward in Jos North/Bassa Federal Constituency on 23rd February, 2019.

 

  1. That the House of Representative Election held on 23rd February, 2019 and 9th March, 2019, were not conducted substantially in accordance with the provisions of the Electoral Act, 2010.

 

  1. That the Petitioners having won the election on the majority of votes cast are entitled to be returned as winners of the election.

Dated this 24th day of August, 2019.

 Joshua John, Esq.

………………………………………For:     Petitioners’ Counsel

S.G. ODEY, ESQ., with

  1. OYAWOLE, ESQ

JOSHUA JOHN, ESQ.

IFEOMA ANEROBI, ESQ.

Petitioners’ Counsel

C/o Sunny-Gabriel Odey & Associates

Renaissance Chambers

No. 2 Wase Close, GRA, Jos.

Phones: 08033477875

e-mail:sgodeyonline@yahoo.com

FOR SERVICE ON:

  1. The 1st Respondent

Independent National Electoral Commission (INEC)

Miango Road, Jos.

 

  1. The 2nd Respondent

C/o His Counsel

G.S. Pwul, SAN

G.S. Pwul, SAN & Partners

Trust White House

No. 34 West of Mines, Jos.

 

  1. The 3rd Respondent

C/o Its Counsel

P.A. Akubo, SAN

P.A. Akubo, SAN & Co.

Ebenezer Plaza, Opposite Lamonde, GRA, Jos.

 

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