3PLR – ALH. BADAMASI KABIR & ANOR V. ACTION CONGRESS (AC) & ORS.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALH. BADAMASI KABIR & ANOR

V.

ACTION CONGRESS (AC) & ORS.

IN THE COURT OF APPEAL OF NIGERIA

ON MONDAY, THE 18TH DAY OF APRIL, 2011

CA/K/EP/NA/35/2008

3PLR/2011/11 (CA)

 

OTHER CITATIONS

 BEFORE THEIR LORDSHIPS

MARY U. PETER-ODILI, JSC

JOSEPH TINE TUR, JSC

OBANDE F. OGBUINYA, JSC

BETWEEN

1. ALH. BADAMASI KABIR
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellants

AND

1. ACTION CONGRESS (AC)
2. INDEPENDENCE NATIONAL ELECTORAL COMMISSION (INEC)
3. RESIDENT ELECTORAL COMMISSIONER (REC), KATSINA STATE
4. RETURNING OFFICE KATSINA CENTRAL FEDERAL CONSTITUENCY
5. PRESIDING OFFICER, KOFAR BAI KAYALWA P/S POLLING STATE
6. PRESIDING OFFICER, KOFAR BAI KAYALWA P/S II POLLING STATE
7. PRESIDING OFFICER, KOFAR BAI KAYALWA P/S III POLLING STATE
8. PRESIDING OFFICER, KOFAR BAI KAYALWA P/S IV POLLING STATE
9. PRESIDING OFFICER, KOFAR BAI KAYALWA P/S V POLLING STATE
10. PRESIDING OFFICER, KOFAR KEKE / NAGOGO P/S POLLING STATE
11. PRESIDING OFFICER, TUDUN WADA NAGOGO P/S POLLING STATE
12. PRESIDING OFFICER, TUNUN WADA/BAKIN GAWO POLLING STATION
13. PRESIDING OFFICER, KOFAR SAURI K/GIDAN A. MAI RIGA POLLING STATION
14. PRESIDING OFFICER, KOFAR SAURI K/GIDAN A. MAI RIGA POLLING STATION
15. PRESIDING OFFICER, MAKERA/YAR’YARA I POLLING STATION
16. PRESIDING OFFICER, MAKERA/YAR’YARA I POLLING STATION
17. PRESIDING OFFICER, MODOJI/KATSINA CLUB POLLING STATION
18. PRESIDING OFFICER, MODOJI / MODOJI P/S I POLLING STATION
19. PRESIDING OFFICER, MODOJI / MODOJI P/S II POLLING STATION
20. PRESIDING OFFICER, MODOJI / MODOJI P/S III POLLING STATION
21. PRESIDING OFFICER, MODOJI / MODOJI P/S IV POLLING STATION
22. PRESIDING OFFICER, RAFUKKA/GIDADO P/S POLLING STATION
23. PRESIDING OFFICER, FAFUKKA GINDIN RIMI I POLLING STATION
24. PRESIDING OFFICER, FAFUKKA GINDIN RIMI II POLLING STATION
25. PRESIDING OFFICER, KOFAR SAURI P/S I POLLING STATION
26. PRESIDING OFFICER, KOFAR SAURI P/S II POLLING STATION
27. PRESIDING OFFICER, KOFAR SAURI/KANTIN HUSSAINI ‘I’ POLLING STATION
28. PRESIDING OFFICER, KOFAR SAURI/KANTIN HUSSAINI ‘II’ POLLING STATION
29. PRESIDING OFFICER, IYATANCHI / NASARAWA P/S POLLING STATION
30. PRESIDING OFFICER, ZANGUNA/MASUSSUKI POLLING STATION
31. PRESIDING OFFICER, TUDUN WADA GIRLS DAY P/S I POLLING STATION
32. PRESIDING OFFICER, TUDUN WADA GIRLS DAY P/S II POLLING STATION
33. PRESIDING OFFICER, TUDUN WADA GIRLS DAY P/S III POLLING STATION
34. PRESIDING OFFICER, TUDUN WADA GIRLS DAY P/S IV POLLING STATION
35. PRESIDING OFFICER, FILIN SAMJI P/S I POLLING STATION
36. PRESIDING OFFICER, FILIN SAMJI P/S II POLLING STATION
37. PRESIDING OFFICER, KOFAR DURBI K/GIDAN LEMA POLLING STATION
38. PRESIDING OFFICER, KOFAR DURBI SOCIAL DV. TRAIN. CENTRE POLLING STATION
39. PRESIDING OFFICER, KOFAR MURUSA P/S I POLLING STATION
40. PRESIDING OFFICER, KOFAR MURUSA P/S II POLLING STATION
41. PRESIDING OFFICER, KOFAR MURUSA P/S III POLLING STATION
42. PRESIDING OFFICER, KOFAR MURUSA GIDAN AGWANDA POLLING STATION
43. PRESIDING OFFICER, K/MURUSA/DUTSIN AMARE P/S I POLLING STATION
44. PRESIDING OFFICER, K/MURUSA/DUTSIN AMARE P/S II POLLING STATION
45. PRESIDING OFFICER, K/MURUSA/DUTSIN AMARE P/S III POLLING STATION
46. PRESIDING OFFICER, KERAU GIDAN DAN AMAR POLLING STATION
47. PRESIDING OFFICER, KERAU GIDAN DAN AMAR POLLING STATION
48. PRESIDING OFFICER, KOFAR MARUSA LAYIN ZANA POLLING STATION
49. PRESIDING OFFICER, KOFAR MARUSA K/G YUSUF LADAN POLING STATION
50. PRESIDING OFFICER, KOFAR MARUSA L/COST BAKIN KANTUNA POLLING STATION
51. PRESIDING OFFICER, KOFAR MARUSA KIDDIES INT. P/S POLLING STATION
52. PRESIDING OFFICER, KOFAR DURBI K/GIDAN DAUDA MANI POLLING STATION
53. PRESIDING OFFICER, KOFAR DURBI K/GIDAN MAI UNG. POLLING STATION
54. PRESIDING OFFICER, KOFAR DURBI BAKIN KOFA POLLING STATION
55. PRESIDING OFFICER, SABUWAR UNG. K/DURBI POLLING STATION
56. PRESIDING OFFICER, YA’RADUA FILIN FIVES I POLLING STATION
57. PRESIDING OFFICER, YA’RADUA FILIN FIVES II POLLING STATION
58. PRESIDING OFFICER, YA’RADUA GIDAN LABARAN ZARIA POLLING STATION
59. PRESIDING OFFICER, SHA’ISKAWA/MAGAMA JUNCTION POLLING STATION
60. PRESIDING OFFICER, K/DURBI GIDAN SANI MASHI POLLING STATION
61. PRESIDING OFFICER, DUTSIN AMARE/FARING IDAN POLLING STATION
62. PRESIDING OFFICER, YA’RADUN K/GIDAN BEBEJI POLLING STATION
63. PRESIDING OFFICER, SHA’ISKAWA K/G ALH. GACHI POLLING STATION
64. PRESIDING OFFICER, SHA’ISKAWA K/G ALH. ISHA GACHI POLLING STATION
65. PRESIDING OFFICER, KOFAR SORO EMIRS PALACE I POLLING STATION
66. PRESIDING OFFICER, KOFAR SORO EMIRS PALACE II POLLING STATION
67. PRESIDING OFFICER, KOFAR SORO UNG. GADI I POLLING STATION
68. PRESIDING OFFICER, KOFAR SORO UNG. GADI II POLLING STATION
69. PRESIDING OFFICER, KOFAR SORO K/GIDAN SULE/DONDA POLLING STATION
70. PRESIDING OFFICER, KOFAR SORO K/GIDAN MUSA GADI I POLLING STATION
71. PRESIDING OFFICER, KOFAR SORO K/GIDAN MUSA GADI II POLLING STATION
72. PRESIDING OFFICER, TAFKIN LAMBU/KOFAR SORO POLLING STATION
73. PRESIDING OFFICER, TSAMIYA K/GIDAN SARKIN BINDIGA POLLING STATION
74. PRESIDING OFFICER, UNG. KUKA K/GM. MUNTARI C/GIDAN POLLING STATION
75. PRESIDING OFFICER, GAMJI K/GM. TANIMU POLLING STATION
76. PRESIDING OFFICER, SAULAWA K/G KADARK POLLING STATION
77. PRESIDING OFFICER, SAULAWA K/G DAN BAWA I POLLING STATION
78. PRESIDING OFFICER, SAULAWA K/G DAN BAWA II POLLING STATION
79. PRESIDING OFFICER, SAULAWA/BAGIGI P/S POLLING STATION
80. PRESIDING OFFICER, GWAN-GWAN/BAYAN REX CINEMA POLLING STATION
81. PRESIDING OFFICER, YA’RADUA K/G TALBA I POLLING STATION
82. PRESIDING OFFICER, YA’RADUA K/G TALBA II POLLING STATION
83. PRESIDING OFFICER, YARINCHI K/G BOYI MAHITA POLLING STATION
84. PRESIDING OFFICER, YAMMAWA/FILIN BAYAN K.T.C. POLLING STATION
85. PRESIDING OFFICER, KUKAR GESA M/UNG. POLLING STATION
86. PRESIDING OFFICER, TSALLATORI/K/GIDAN M/UNG. POLLING STATION
87. PRESIDING OFFICER, YARINCHI K /GIDAN WALI I POLLING STATION
88. PRESIDING OFFICER, YARINCHI K /GIDAN WALI II POLLING STATION
89. PRESIDING OFFICER, YARINCHI K /GIDAN SARKIN TSAFTA POLLING STATION
90. PRESIDING OFFICER, K/GIDAN WAMBAI POLLING STATION
91. PRESIDING OFFICER, MAKUDAWA K/GIDAN MALL. MUSA I POLLING STATION
92. PRESIDING OFFICER, MAKUDAWA K/GIDAN MALL. MUSA II POLLING STATION
93. PRESIDING OFFICER, MAKUDAWA K/GIDAN MALL. UNG. I POLLING STATION
94. PRESIDING OFFICER, MAKUDAWA K/GIDAN MALL. UNG. II POLLING STATION
95. PRESIDING OFFICER, MAKUDAWA K/GIDAN ALH. DALHA POLLING STATION
96. PRESIDING OFFICER, MAKUDAWA K/GIDAN DAN MAKUDA I POLLING STATION
97. PRESIDING OFFICER, MAKUDAWA K/GIDAN DAN MAKUDA II POLLING STATION
98. PRESIDING OFFICER, MAKUDAWA K/GIDAN ABBAN KANWA POLLING STATION
99. PRESIDING OFFICER, MAKUDAWA K/GIDAN DAN MAKUDA POLLING STATION
100. PRESIDING OFFICER, SARARIN TSAKO BAKIN MASALLACI POLLING STATION
101. PRESIDING OFFICER, TUDUN YAN’SHANU K/G S/FAWA POLLING STATION
102. PRESIDING OFFICER, KWANAR YAN’SHANU K/G YUSUS ROCO POLLING STATION
103. PRESIDING OFFICER, CHAKE K/C MUNTARI LAWAL I POLLING STATION
104. PRESIDING OFFICER, CHAKE K/C MUNTARI LAWAL II POLLING STATION
105. PRESIDING OFFICER, SARARIN TSAKO K/G MUSA WANZU POLLING STATION
106. PRESIDING OFFICER, SARARIN TSAKO K/G ABBA GAMBO POLLING STATION
107. PRESIDING OFFICER, S/TSAKO K/GIDAN AHMED TURAWA I POLLING STATION
108. PRESIDING OFFICER, S/TSAKO K/GIDAN AHMED TURAWA II POLLING STATION
109. PRESIDING OFFICER, KOFAR GUGA K/GIDAN ISA LIKITA POLLING STATION
110. PRESIDING OFFICER, KOFAR GUGA K/GIDAN BALA KAMFANI POLLING STATION
111. PRESIDING OFFICER, KOFAR GUGA K/GIDAN BALA KAMFANI POLLING STATION
112. PRESIDING OFFICER, SULLUBAWA K.GIDAN AHMED TURAWA POLLING STATION
113. PRESIDING OFFICER, SULLUBAWA K.GIDAN ISAH LIKITA POLLING STATION
114. PRESIDING OFFICER, SULLUBAWA K.GIDAN AYUBA POLLING STATION
115. PRESIDING OFFICER, SULLUBAWA K.GIDAN USMAN SARKI POLLING STATION
116. PRESIDING OFFICER, YANTANDU K/GIDAN USMAN SARKI POLLING STATION
117. PRESIDING OFFICER, LUNGUN NUFAWA/SHAGON DANTARO POLLING STATION
118. PRESIDING OFFICER, SABO GIDA K/GIDAN MAIL UNG. POLLING STATION
119. PRESIDING OFFICER, GAFAI-GAFAI PRIM. SCH. I POLLING STATION
120. PRESIDING OFFICER, GAFAI-GAFAI PRIM. SCH. II POLLING STATION
121. PRESIDING OFFICER, GAFAI-GAFAI PRIM. SCH. III POLLING STATION
122. PRESIDING OFFICER, GAFAI-GAFAI WAKILIN YAMMA POLLING STATION
123. PRESIDING OFFICER, GAFAI-GIDAN DAHIRU DABAI I POLLING STATION
124. PRESIDING OFFICER, GAFAI-GIDAN DAHIRU DABAI II POLLING STATION
125. PRESIDING OFFICER, GAFAI K/GIDAN ALKALI MAI WA POLLING STATION
126. PRESIDING OFFICER, GAFAI K/GIDAN LADAN SO POLLING STATION
127. PRESIDING OFFICER, BAKIN GIDAN YUSUF POLLING STATION
128. PRESIDING OFFICER, NASARAWA DAY K/G MAI UNG. I POLLING STATION
129. PRESIDING OFFICER, NASARAWA DAY K/G MAI UNG. II POLLING STATION
130. PRESIDING OFFICER, KOFAR YANDAKA/FILIN POLO I POLLING STATION
131. PRESIDING OFFICER, KOFAR YANDAKA/FILIN POLO II POLLING STATION
132. PRESIDING OFFICER, MASANAWA K/GIDAN MAIL UNG. POLLING STATION
133. PRESIDING OFFICER, MASANAWA K/GIDAN YUSUF MAI TAKALMI POLLING STATION.
134. PRESIDING OFFICER, MASANAWA OFISHIN WAKILIN YAMMA I POLLING STATION
135. PRESIDING OFFICER, MASANAWA OFISHIN WAKILIN YAMMA II POLLING STATION.
136. PRESIDING OFFICER, MASANAWA K/GIDAN ASHAHABU I POLLING STATION
137. PRESIDING OFFICER, MASANAWA K/GIDAN ASHAHABU II POLLING STATION
138. PRESIDING OFFICER, MASANAWA K/G BATULE DAN YAMAI I POLLING STATION
139. PRESIDING OFFICER, MASANAWA K/G BATULE DAN YAMAI II POLLING STATION
140. PRESIDING OFFICER, MASANAWA K/G BATULE DAN YAMAI IIII POLLING STATION
141. PRESIDING OFFICER, KOFAR YANDAKA K/GIDAN ALH. MA’A I POLLING STATION
142. PRESIDING OFFICER, KOFAR YANDAKA K/GIDAN ALH. MA’A II POLLING STATION
143. PRESIDING OFFICER, KOFAR YANDAKA K/GIDAN ZUBAIRU SHAKKA POLLING STATION
144. PRESIDING OFFICER, KOFAR YANDAKA K/GIDAN SULE TSANTSAMI POLLING STATION
145. PRESIDING OFFICER, YANTABA K/GIDAN YANDAKA POLLING STATION
146. PRESIDING OFFICER, YANTABA K/GIDAN A. GAMBO POLLING STATION
147. PRESIDING OFFICER, YANTABA K/GIDAN GAMBO POLLING STATION
148. PRESIDING OFFICER, BAMBADAWA K/G DODO TELE POLLING STATION
149. PRESIDING OFFICER, BAMBADAWA K/G MAIL UNG. POLLING STATION
150. PRESIDING OFFICER, GANDANBU KANTIN ALH. MUNTARI POLLING STATION
151. PRESIDING OFFICER, RAFINDADI K/GIDAN IRO ISANSI POLLING STATION
152. PRESIDING OFFICER, RAFINDADI P/S I POLLING STATION
153. PRESIDING OFFICER, RAFINDADI P/S II POLLING STATION
154. PRESIDING OFFICER, RAFINDADI P/S IIII POLLING STATION
155. PRESIDING OFFICER, RAFINDADI WAKILIN KUDU OFFICE POLLING STATION
156. PRESIDING OFFICER, TSOHUWA KASUWA/DANMARNA P/S II POLLING STATION
157. PRESIDING OFFICER, TSOHUWA KASUWA/DANMARNA P/S II POLLING STATION
158. PRESIDING OFFICER, ALBABA/DANMARNA P/S POLLING STATION
159. PRESIDING OFFICER, ALBABA/DANMARNA P/S POLLING STATION
160. PRESIDING OFFICER, DARMA BAKIN CHEDIYA POLLING STATION
161. PRESIDING OFFICER, DARMA R/GIDAN ALH. FALALU POLLING STATION
162. PRESIDING OFFICER, MARARRABA R/GIDAN ALWARU I POLLING STATION
163. PRESIDING OFFICER, MARARRABA K/GIDAN ALWARU II POLLING STATION
164. PRESIDING OFFICER, POST OFFICE-BAKIN POST OFFICE POLLING STATION
165. PRESIDING OFFICER, UNG. ALKALI-UNG. ALKALI I POLLING STATION
166. PRESIDING OFFICER, UNG. ALKALI-UNG. ALKALI II POLLING STATION
167. PRESIDING OFFICER, UNG. SHARUFFAI K/G ABBA NA IKKO POLLING STATION
168. PRESIDING OFFICER, TSOHUWAR KASUWA K/G ALH. JUNAIDU POLLING STATION
169. PRESIDING OFFICER, YANSILIYU K/G SHA’AIBU DANDAUDU POLLING STATION
170. PRESIDING OFFICER, YANSILIYU K/G BALA DRIVER POLLING STATION
171. PRESIDING OFFICER, YANSILIYU K/G MAJIDADI POLLING STATION
172. PRESIDING OFFICER, YAN KYAURE BAKIN RIJIYA POLLING STATION
173. PRESIDING OFFICER, SARARIN KUKA PRIM. SCH. POLLING STATION
174. PRESIDING OFFICER, SARARIN KUKA K/G MAI UNG. TURAJI POLLING STATION
175. PRESIDING OFFICER, SABUWA KASUWA/GARAMA P/S I POLLING STATION
176. PRESIDING OFFICER, SABUWA KASUWA/GARAMA P/S II POLLING STATION
177. PRESIDING OFFICER, GARAMA-GARAMA PRIM. SCH. POLLING STATION
178. PRESIDING OFFICER, S/KASUWA K/GIDAN ALH. HARUNA KUSA POLLING STATION
179. PRESIDING OFFICER, K/KAURA LAYOUT P/S I POLLING STATION
180. PRESIDING OFFICER, K/KAURA LAYOUT P/S II POLLING STATION
181. PRESIDING OFFICER, K/KASUWA K/GIDAN NADADA I POLLING STATION
182. PRESIDING OFFICER, K/KASUWA K/GIDAN NADADA II POLLING STATION
183. PRESIDING OFFICER, SABON LAYI GIDAN RADIO I POLLING STATION
184. PRESIDING OFFICER, SABON LAYI GIDAN RADIO II POLLING STATION
185. PRESIDING OFFICER, SABON LAYI GIDAN DAN IYA POLLING STATION
186. PRESIDING OFFICER, SABON LAYI GIDAN SARKIN YAKI I POLLING STATION
187. PRESIDING OFFICER, SABON LAYI GIDAN SARKIN YAKI II POLLING STATION
188. PRESIDING OFFICER, SABON KASUWA K/GIDAN A. ABBATI I POLLING STATION
189. PRESIDING OFFICER, SABON KASUWA K/GIDAN A. ABBATI II POLLING STATION
190. PRESIDING OFFICER, SABON KASUWA K/G YAHAYA DAUDU POLLING STATION
191. PRESIDING OFFICER, SABON KASUWA K/G ALH. MUSA FUNTUA POLLING STATION
192. PRESIDING OFFICER, K/KAURA/K/KAURA P/S I POLLING STATION
193. PRESIDING OFFICER, K/KAURA/K/KAURA P/S II POLLING STATION
194. PRESIDING OFFICER, K/KAURA/K/KAURA P/S III POLLING STATION
195. PRESIDING OFFICER, K/KAURA D/AHMED/K/KAURA P/S POLLING STATION
196. PRESIDING OFFICER, K/KAURA K/GIDAN GALADIMA POLLING STATION
197. PRESIDING OFFICER, K/KAURA K/GIDAN KAURA I POLLING STATION
198. PRESIDING OFFICER, K/KAURA K/GIDAN KAURA II POLLING STATION
199. PRESIDING OFFICER, INWALA K/GIDAN MUNTARI TELE I POLLING STATION
200. PRESIDING OFFICER, INWALA K/GIDAN MUNTARI TELE II POLLING STATION
201. PRESIDING OFFICER, INWALA K/GIDAN MILA POLLING STATION
202. PRESIDING OFFICER, INWALA DAN MILA POLLING STATION
203. PRESIDING OFFICER, INWALA YAN ALEWA I POLLING STATION
204. PRESIDING OFFICER, INWALA YAN ALEWA II POLLING STATION
205. PRESIDING OFFICER, KOFAR KAURA K/GIDAN ABDULMALIK POLLING STATION
206. PRESIDING OFFICER, KOFAR KAURA K/GIDAN KOFUR SAMA POLLING STATION
207. PRESIDING OFFICER, TAYOYI K/GIDAN A. SAMA ROBA POLLING STATION
208. PRESIDING OFFICER, SABUWAR MAHUTA OPEN SPACE POLLING STATION
209. PRESIDING OFFICER, K.S.R.C.-ESTATE HOUSING ESTATE POLLING STATION
210. PRESIDING OFFICER, SABUWAR UNG. P/S POLLING STATION
211. PRESIDING OFFICER, SABUWAR UNG. K/GIDAN A. ABDULRAHMAN POLLING STATION
212. PRESIDING OFFICER, SABUWAR UNG. KWAUREN DOROWA POLLING STATION
213. PRESIDING OFFICER, SABUWAR UNG. MAIKUDI HOTEL I POLLING STATION
214. PRESIDING OFFICER, SABUWAR UNG. MAIKUDI HOTEL II POLLING STATION
215. PRESIDING OFFICER, KOFAR KAURA K/G ALH. DANA POLLING STATION
216. PRESIDING OFFICER, BAYAN A.T.C. K/G A.S.P./ARAHAMAN POLLING STATION
217. PRESIDING OFFICER, BAYAN A.T.C. K/GIDAN RAHMAN POLLING STATION
218. PRESIDING OFFICER, A.T.C. – A.T.C. POLLING STATION
219. PRESIDING OFFICER, SHARARRAR PIPE DAN BEDI I POLLING STATION
220. PRESIDING OFFICER, SHARARRAR PIPE DAN BEDI II POLLING STATION
221. PRESIDING OFFICER, SHARARRAR PIPE K/G YAHAYA POLLING STATION
222. PRESIDING OFFICER, IWALA K/G GOGALO POLLING STATION
223. PRESIDING OFFICER, NAKOWA BREAD GIDAN DOROWA I POLLING STATION
224. PRESIDING OFFICER, NAKOWA BREAD GIDAN DOROWA II POLLING STATION
225. PRESIDING OFFICER, S/GARI W.T.C./S/GARA BREAD GIDAN DOROWA I POLLING STATION
226. PRESIDING OFFICER, GIDAN DAWA/GIDAN DAWA POLLING STATION
227. PRESIDING OFFICER, UNG. YARI-FILIN UNG. YARI I POLLING STATION
228. PRESIDING OFFICER, UNG. YARI-FILIN UNG. YARI II POLLING STATION
229. PRESIDING OFFICER, UNG. YARI OFISHIN WAKILIN AREWA POLLING STATION
230. PRESIDING OFFICER, UNG. JAJI-BAKIN CHEDIYA POLLING STATION
231. PRESIDING OFFICER, UNG. MADAWAKI K/GIDAN S/DAURA POLLING STATION
232. PRESIDING OFFICER, UNG. MADAWAKI K/GIDAN MADAWAKI POLLING STATION
233. PRESIDING OFFICER, UNG. AMBUTTAI P/S I POLLING STATION
234. PRESIDING OFFICER, UNG. AMBUTTAI P/S II POLLING STATION
235. PRESIDING OFFICER, UNG. BUGU K/GIDAN ALH. ABDU TAKI I POLLING STATION
236. PRESIDING OFFICER, UNG. BUGU K/GIDAN ALH. ABDU TAKI II POLLING STATION
237. PRESIDING OFFICER, UNG. BUGU K/GIDAN ALH. ABDU KAFA POLLING STATION
238. PRESIDING OFFICER, MARNAR GANGARE K/GIDAN ALH. ALI I POLLING STATION
239. PRESIDING OFFICER, MARNAR GANGARE K/GIDAN ALH. ALI II POLLING STATION
240. PRESIDING OFFICER, MARNAR GANGARE K/GIDAN ALH. FALALU POLLING STATION
241. PRESIDING OFFICER, GAMBARAWA K/GIDAN SALELE BATURE POLLING STATION
242. PRESIDING OFFICER, GAMBARAWA K/GIDAN URWATU POLLING STATION
243. PRESIDING OFFICER, BARAZAKI K/GIDAN URWATU POLLING STATION
244. PRESIDING OFFICER, BARAZAKI K/GIDAN ILALI I POLLING STATION
245. PRESIDING OFFICER, BARAZAKI K/GIDAN ILALI II POLLING STATION246. PRESIDING OFFICER, DUTSIN SAFE LOW COST P/S I POLLING STATION
246. PRESIDING OFFICER, DUTSIN SAFE LOW COST P/S II POLLING STATION
247. PRESIDING OFFICER, DUTSIN SAFE GIDAN TAKI COST P/S I POLLING STATION
248. PRESIDING OFFICER, MASALLAHCIN IDI FILIN MASALLACI POLLING STATION
249. PRESIDING OFFICER, BAKIN KASUWA K/GIDAN MAGAJI GAJEMA I POLLING STATION
250. PRESIDING OFFICER, BAKIN KASUWA K/GIDAN MAGAJI GAJEMA II POLLING STATION
251. PRESIDING OFFICER, BAKIN KASUWA K/GIDAN SARKIN FADA POLLING STATION
252. PRESIDING OFFICER, BAKIN KASUWA K/GIDAN ALH. DALHA POLLING STATION
253. PRESIDING OFFICER, GOBARAU-GOBARAU P/S POLLING STATION
254. PRESIDING OFFICER, UNG. LABO K/GIDAN ABU MAI CHEFANE POLLING STATION
255. PRESIDING OFFICER, FARIN YARO-FARIN YARO P/S POLLING STATION
256. PRESIDING OFFICER, UNG. MARUSA K/GIDAN IDI YAMEL POLLING STATION
257. PRESIDING OFFICER, UNG. CHIROMA K/GIDAN CHIROMA I POLLING STATION
258. PRESIDING OFFICER, UNG. CHIROMA K/GIDAN CHIROMA II POLLING STATION
259. PRESIDING OFFICER, LAMAMA K/GIDAN TAMBURA POLLING STATION
260. PRESIDING OFFICER, SABUWAR KOFA PRIM. SCH. POLLING STATION
261. PRESIDING OFFICER, UNG. ANGO K/GIDAN ABU NA GONA POLLING STATION
262. PRESIDING OFFICER, GEZAWA-GEZEWA POLLING STATION
263. PRESIDING OFFICER, FAGE K/GIDAN MALL MUSA POLLING STATION
264. PRESIDING OFFICER, UNG. MAGAJI K/GIDAN MAI GARI POLLING STATION
265. PRESIDING OFFICER, SAULAWA K/G MAL. MU’AZU POLLING STATION
266. PRESIDING OFFICER, UNG. TAFA K/GIDAN MAL. AMADI POLLING STATION
267. PRESIDING OFFICER, S/GARI/KAURA RAFA K/GIDAN ALH. SABE POLLING STATION
268. PRESIDING OFFICER, KAURA RAFA K/GIDAN MAI UNG. POLLING STATION
269. PRESIDING OFFICER, SAULAWA K/GIDAN SARKIN TASHA POLLING STATION
270. PRESIDING OFFICER, MARAI K/GIDAN MAI UNG. MU’AZU POLLING STATION
271. PRESIDING OFFICER, DAN NABASO K/GIDAN MAL. SULE I POLLING STATION
272. PRESIDING OFFICER, DAN NABASO K/GIDAN MAL. SULE II POLLING STATION
273. PRESIDING OFFICER, MODOJI K/GIDAN MAI UNG. MUSA POLLING STATION
274. PRESIDING OFFICER, MODOJI GIDAN MAL. MATI POLLING STATION
275. PRESIDING OFFICER, MODOJI-MODOJI POLLING STATION
276. PRESIDING OFFICER, MAKERA PRIM. SCH. POLLING STATION
277. PRESIDING OFFICER, MAKERA K/GIDAN MAI UNG. KANO POLLING STATION
278. PRESIDING OFFICER, SABUWAR BAKURU K/GIDAN MAL. MANI POLLING STATION
279. PRESIDING OFFICER, KADAFAWA K/GIDAN MAIN UNG. SAIDU POLLING STATION
280. PRESIDING OFFICER, KWADO K/GIDAN MAI UNG. B. ADAMU POLLING STATION
281. PRESIDING OFFICER, KWADO K/GIDAN ALH. KADO POLLING STATION
282. PRESIDING OFFICER, KAMBARAWA PRIM. SCH. POLLING STATION
283. PRESIDING OFFICER, KAMBARAWA K/GIDAN MAL. JATAU POLLING STATION Respondents

 

REPRESENTATION

UYI IGUNMA & M.I. ABUBAKAR FOR THE APPELLANTS 1ST RESPONDENT DID NOT FILE ANY BRIEF OF ARGUMENT – For Appellant

AND

I.M INUWA ESQ. – For Respondent

 

MAIN ISSUES

1. ELECTION PETITIONS – AMENDMENT OF ELECTION PETITION: Whether the general principles of amendment in normal civil matters are not applicable in election petition

“…in view of the fact, that subparagraph 1 of paragraph 14 of the First Schedule to the Electoral Act 2006 which makes provisions for the application of the Civil Procedure Rules relating to amendments of pleadings is expressly made subject to subparagraph 2 of the same paragraph 14. See Obi Odu v. Duke (No.2) (2005) 10 NWLR (Pt.932) 105 at page 145 “F-G” wherein the Court of Appeal held thus: “The general principles of amendment in normal civil matters are not applicable in election petition (see Okafor v. Ikeanyi (1969) 12 NSCC 1st Edition page 43 at 47).”Per TUR, J.C.A.(P. 82, paras. E-G)

2. EVIDENCE – BURDEN OF PROOF: On whom rests the burden of proof in a claim before the Court

“The burden is on the party who takes another to a court or Tribunal to prove the allegations and to show his entitlement to any relief claimed. See Tangale Traditional Council v. Fawu (2002) FWLR (Pt.117) 1147 at 1165 paragraph “B”.”Per TUR, J.C.A.(P. 78, para. A)

3. APPEAL – CROSS-APPEAL/RESPONDENT’S NOTICE: Effect of a Respondent’s failure to file a cross appeal or a Respondent’s Notice

“It is also the law that a respondent to an appeal who neither files a cross appeal nor a Respondent’s Notice, will not be allowed to even file a brief of argument in the course of the hearing of the appeal. See Oguma vs. Associated Companies Ltd v. I.B.N.A. Ltd (1988) 1 NWLR (Pt.73) 658 and Kotoye v. Central Bank of Nigeria Ltd (1989) 1 NWLR (Pt.98) 419.”Per TUR, J.C.A. (Pp. 67-68, paras. G-A)

4. EVIDENCE – DOCUMENTARY EVIDENCE: Whether where a party tenders an ambiguous document in support of his claim, such will be construed against him

“Where there is ambiguity in a document tendered by a party in support of his claim that will be construed against him. See Alhaji Adamu v. Alhaji Bauchi (1977) NNLR 131 at 132 and Section 133(3) of the Evidence Act 1990 which provides that: “(3) If the words of a document are as defective or ambiguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say.” Moreover, the Tribunal held that doubts in the evidence existed and thus was to be resolved in favour of the Respondents. That is the correct legal position. See Ikhane v. COP (1977) 6 SC 119; Nasamu v. The State (1979) 6-9 SC 153 at 159 and Udosen v. The State (2007) 4 NWLR (Pt.1023) 125 per Ogbuagu JSC at p.16 paragraph “C-F”.”Per TUR, J.C.A.(Pp. 78-79, paras. D-A)

5. EVIDENCE – DOCUMENTARY EVIDENCE: Whether the only evidence admissible in any transaction reduced into writing is the document containing the transaction

“The 1st Petitioners then goes on to give what is contained in the Register of Voters. Form EC8A and the total votes cast in respect of 128 Polling Stations and the fact that “no voters were accredited to vote. In our view, what the 1st Petitioner is attempting to do is to prove the content of written INEC documents by oral or affidavit evidence as it is that the only evidence admissible in respect of any official transaction reduced into writing is the document containing the transaction or admissible secondary evidence containing the transaction or admissible secondary evidence thereof. See Awuse v. Odili (supra) where the Court of Appeal held thus: “The only evidence admissible in any transaction reduced into writing is the document containing the transaction and is not permissible to any party to seek to prove or contradict such evidence, written documents by oral or affidavit evidence. See Section 132 of the Evidence Act, Cap.112 Laws of the Federation of Nigeria 1990. Olanlege v. Agro Continental Nig. Ltd (1996) 7 NWLR (Pt.458) 2940 (underling ours for emphasis).” Accordingly, save for his personal narration contained in paragraphs 1(1)-(13): 14-17; 18; 20-22; 25-27; 32-34 which remain, all other portions of the said Exhibit being attempts at proving the contents of a written document by oral evidence, are rejected as they offend against the evidence Act and our authority for doing this Awuse v. Odili (Supra) and Ajero v. Ogoriji (1999) 10 NWLR (Pt.621) where it was held, that the testimony of a witness can be rejected in part.”Per TUR, J.C.A.(Pp. 79-80, paras. E-E)

6. COURT – DUTY OF COURT: Duty of Courts and Tribunals to avoid blind adherence to previous statutes when considering issues for determination

“Courts and Tribunals are enjoined to avoid blind adherence to previous statutes when considering issues for determination unless they are imparimateria. See Nwobodo v. Onoh (1984) NSCC 1 at 14. Laws are usually repealed or amended to take care of present day social changes hence the best manner of knowing the intention of the legislature is to interprete and apply the law in force at the time the cause of action accrued or arose. See Onuoha vs. COP (1959) 4 FSC 23; Ojokolobo v. Alamu (1987) 7 SCNJ 98 at 145 and Ebiriukwu vs Ohanyerewa (1959) 4 FSC 2121.”Per TUR, J.C.A.(Pp. 65-66, paras. F-A)

7. COURT – DUTY OF COURT: Duty of Court not to slaughter substantial justice on the shrine of technicality

“A court must not slaughter substantial justice on the shrine of technicality. In the case of Maersk Line v Addide Invest. Ltd. (2002) 11 NWLR (pt.778) 317 at 383, Ayoola, JSC, noted: “The judicial process malfunctions and is discredited when it is bogged down by technicalities and is manipulated to go from technicality to technicality and thrive on technicalities. That is why, at all times, the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our judicial system.” See, also, C & C Const. Co. Ltd v. Okoli (2003)18 NWLR (Pt.851) 79; Egolum v. Obasanjo (supra); Famfa Oil Ltd. v. A.-G., Fed. (2003)13 NWLR (Pt.852) 453; Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421.”Per OGBUINYA, J.C.A.(Pp. 93-94, paras. D-A)

8. APPEAL – DUTY OF RESPONDENT: The traditional role of the respondent to an appeal

“In Obi v. INEC (2007) 11 NWLR (Pt.1046) 565, Mohammed JSC held at page 673-674 as follows:- “…This court has stated in so many of its decisions that the traditional role of the respondent to an appeal is to defend the judgment appealed against. If any respondent wants to depart from this traditional role by attacking the judgment appealed against in any manner, that respondent is obliged by the rules of Court to file a cross-appeal. See Lagos-City Council vs. Ajayi (1970) 1 All WLR 291; Eliochin (Nig) Ltd & Ors vs. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt.14) 47; and Adefulu vs. Oyesile (1989) 5 NWLR (Pt.122) 377 at 417.”Per TUR, J.C.A.(P. 67, paras. C-F)

9. ELECTION PETITIONS – ELECTION PETITION PROCEEDINGS: Grounds upon which an election or return of a candidate may be questioned by a Petitioner

“Section 145(1)(a)-(d) of the Electoral Act, 2006 sets out in clear terms the grounds upon which an election or return may be questioned by a Petitioner by providing as follows: “145(1) An election may be questioned on any of the following grounds: (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election: (b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; (c) that the respondent was not duly elected by majority of lawful votes cast at the election; or (d) that the Petitioners or its candidate was validly nominated but was unlawfulfully excluded from the election.” (2) An act of omission which may be contrary to an instruction or directive of the commission or of the an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.When the lawmaker provides that the petitioner shall set out the ground for questioning an election it simply means the petitioner shall provide the reasons, points or basis upon which he relies to challenge the validity of the election or return of the candidate in whose favour the declaration was made. This is because in arriving at a decision the Tribunal must ground the judgment on points or grounds of law and fact. There can be no judgment without a ground, basis or reasons which must be determined from the whole contents and tenor of the Petition. In ordinary civil cases, there are times the pleadings of the plaintiff and defendant have to be read together to determine the issues in controversy. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 182-183; Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 and Ishola v. UBN Ltd (2005) All FWLR (pt.256) 1202 at 1211 paragraph “D”Per TUR, J.C.A.(Pp. 68-70, paras. F-A)

10. ELECTION PETITIONS – ELECTION PETITION PROCEEDINGS: Duty of Court or tribunal in doing substantial justice in the hearing of an Election Petition

“The Tribunal held at page 744 lines 20 – 26 of the printed record as follows:- “As to the issue, that there is no legally recognizable ground in the Petition as permitted by Section 145(1) of the Electoral Act, 2006 to sustain the petition, we say that in doing substantial justice in the hearing of an Election Petition, a Tribunal or Court shall be at liberty to read through the facts pleaded, paragraph by paragraph and match them with the evidence in support of the pleadings, without confining or restricting itself to a particular paragraph. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 169…” That is the correct position of the law. See also Anigala v. Abeh (1999) 7 NWLR (Pt.611) 454 at 467.”Per TUR, J.C.A.(P. 74, paras. A-D)

11. LIMITATION LAW – LIMITATION OF ACTION: Formula for measuring when an action is statute barred

“The formula for measuring statute-bar is very simple. A court is enjoined to examine a writ of summons or statement of claim, filed by, a party, which invariably discloses when (the date) the cause of action arose and situate it with the date when the writ of summons or action was filed in court. If the date of filing, as endorsed on the writ, is beyond the period allowed by the limitation law, then the action is statute-barred. If the period is within the time frame prescribed in the limitation statute, then it is not caught by statute-bar. See Elabanio v. Dawodu (2006) 15 NWLR (pt.1001) 76; Mit. Admin., Ekiti State v. Aladeyelu (supra); Duzu v Yunusa (2010) 10 NWLR (pt.1201) 80; Hassan v Aliyu (2010)17 NWLR (Pt.1223) 547.”Per OGBUINYA, J.C.A. (Pp. 86-87, paras. E-A)

12. ELECTION PETITIONS – NON-COMPLIANCE: Whether non-compliance constitutes electoral malpractice which has to be proved beyond reasonable doubt

“The Tribunal was unable to determine the colour of the ink used to make the ticking or markings in the Voters Registers because the petitioners produced photocopied certified true copies.  The onus was on the Petitioners to have subpoenaed or produced credible evidence to prove their complaints beyond reasonable doubt. Non-compliance constitutes electoral malpractice that has to be proved beyond reasonable doubt. See Maikudi v. Musa (2004) All FWLR (Pt.230) 1096 1111-1112; Atikpekpe v. Joe (1999) 6 NWLR (Pt.607) 428-440 and Kingibe v. Maina (2004) ALL FWLR (Pt.191) 1555 at 1588.”Per TUR, J.C.A. (P. 77, paras. C-F)

13. ACTION – PLEADINGS: Whether to determine the real issues in controversy, Courts should examine the whole tenor of the pleadings

“In my humble view the Supreme Court has laid it down that the whole tenor of the pleadings should be examined to determine the real issues in controversy. See Emesie vs. Onuaguluchi (1995) 12 SCNJ 120 at 131; Fadlallah vs. Arewa Textiles Ltd (1997) 7 SCNJ 202 at 217.”Per TUR, J.C.A. (P. 82, paras. E-G)

14. ELECTION PETITIONS – PRESENTATION OF ELECTION PETITION: Computation of time in the presentation of election petition

“By law, the date on which an event occurred is not counted in the process of calculating the period enshrined in any legislation: In the same vein, where the last day slated for the happening of an event is a public holiday, the limited period is extended or prolonged to the next working day. The provision of section 15(2) (b) of the Interpretation Act is a living proof. In the case of Akeredolu v. Akinremi (1985)2 NWLR (Pt.10) 787 at 794, the Court of Appeal, Ibadan Division, delivered a judgment on 10/04/1985 while the appellants lodged an appeal against it on 10/07/1985. The applicants/respondents raised a preliminary objection to the appeal, before the Supreme court, that it was filed out of time by one day contrary to the provision of section 31 (2) of the Supreme Court Act, 1960 which provided for three months for an appeal against a final decision. The preliminary objection was overruled. Aniagolu, J.SC, opined: “It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1985. The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15(2) of the Interpretation Act, 1964, must be excluded in the computation, on the footing that the appeal was filed on 10th July, 1985. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance.” By the same token, in the case of Yusuf v. Obasanjo (2003) 16 NWLR (Pt.847) 554 at 629-630, Uwaifo, JSC, observed: “Section 132 (of the Electoral Act, 2002) provides that: “An election petition may be presented within thirty (30) days from the date the result of the election is declared.” It is not in dispute that the presidential election result in question was declared on 22 April, 2003. The petitioners in this case had 30 days within which to appeal against it. The 30 days will be calculated from 23 April to end on 22 May, 2003….Section 15(2)(a) of the Interpretation Act… makes similar provision…The petition was filed on 2 May, well within time.” Similarly, in the recent case of Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt.1183) 159 at 197, Onnoghen, JSC, re-echoed this hallow principle of law. He stated: “…The law is now settled that in calculating or computing time stipulated by statute, generally the first day of the period will be excluded from the reckoning while the last day will be included except, where the last day is a public holiday in which case the end of the following day, which is not a public holiday, will be included – see section 15(2) of the Interpretation Act The wisdom behind the exclusion of the day of the occurrence of an event, in computation of days, was succinctly explained by Oputa, JSC, in the case of Akeredolu v. Akinremi (supra), at pages 804-805, in these illuminating words: “…Excluding the date on which the event happened that gave rise to the computation accords with good sound common-Sense, otherwise one will be faced with the difficulty’ of calculating a fraction of a day as a day. It is my humble view that unless expressly so provided by statute, to argue that a fraction of a day is equal to a whole day involves the ineradicable fallacy of making a part equal to a whole. Such an interpretation would be an assault on common-Sense and would do violence to the plain meaning of words. To avoid regarding part of a day as a whole day, the day on which the event happened should be excluded from the computation. The judgment now appealed against could not have been delivered at 12 mid-night of 9th April 1985. If it were delivered any time after 9a.m (when the courts usually begin sitting) then the present Applicants are being allowed less than the 3 months granted them by S.31 (a) of the Supreme Court Act 1960.” Given the foregoing immutable position of the law, the 21st April, 2007, on which the result of the election was declared, would not be counted in calculating the thirty (30) days for the first and second respondents to file their petition. The law, as x-rayed above, makes it clear that their time will begin to run on 22/04/2007. Their thirty (30) days will end on 21/05/20007. It was a common ground that that date , was a Sunday. Going by the sacred provision of section 15(2), (3) and (5) of the Interpretation Act, that date, being a Sunday, was a deis non juridicus – a non judicial day. The Interpretation Act, section 15(5) thereof makes Sunday a public holiday, even as section (3) of the section 15 of the Act validates any acts performed on a day following it. In law, where a word in a statute is legally defined, that defined meaning is ascribed to that word by courts in subsequent proceedings on the footing of stare decisis, see Diapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 332 at 447, per, Aderemi, JSC. The point I am struggling to run home is that the petition was not filed beyond thirty, (30) days as ordained by section 141 of the Electoral Act, 2006. I, therefore, hold that the petition did not offend or desecrate that sacrosanct provision. Let me place on record, ex abundanti cautela, that the Interpretation Act is applicable to all legislations. Little wonder, section 1 of that Act provides: “This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.” That is noted in the case of Ahmed v. FGN (2009) 13 NWLR (Pt.1159) 536. Similarly, it is applicable to all proceedings, criminal and civil alike; see Shekete v. N.A.F (2007) 14 NWLR (Pt.1053) 159. Interestingly, throughout the length and breadth of the 166 section Electoral Act, 2006, it never barred the application of the Interpretation Act to it. Nor does the Act exclude the Electoral Act, 2006 from its domain of application. Altogether, the first respondent’s petition, filed on 21/05/2007, was presented within the four walls of the period circumscribed in section 141 of the Electoral Act, 2006. In the effect, the petition was not entrapped or plagued by statute-bar. It was competent.”Per OGBUINYA, J.C.A. (Pp. 87-91, paras. F-G)

15. ELECTION PETITIONS – PROOF OF NON-ACCREDITATION OF VOTERS: Whether the onus of proving there was no accreditation of voters rests on the Petitioner(s)

“The onus of proving there was no accreditation of voters was on the party complaining, namely, the Petitioners. Once the Petitioners were unable to prove the allegations beyond reasonable doubt the onus does not shift to the Respondents to prove there was accreditation. In Akinfosile v. Ijose (1960) 5 FSC 192 the Federal Supreme Court held at page 199 that: “…a petitioner who alleges in his petitions a particular non-compliance and avers in his prayer that the non-compliance was substantial, must so satisfy the Court. This petitioner failed to do. It follows therefore, that I would allow this appeal, set aside the judgment of the Court below with the order for costs so far as the first respondent is concerned, and order that the petition should be dismissed….”Per TUR, J.C.A.(Pp. 76-77, paras. G-C)

16. EVIDENCE – REJECTED EVIDENCE: Whether evidence which has been rejected can be used later in the course of trial

“Rejected evidence be it documentary or oral cannot be later used in the course of trial. See Akpamyong v. Essiet (1975) 3 SC 107; Arubi v. Offshore Operators (Nig) Ltd (1978) 342 at 345 and Babatola v. Aladejona (2001)6 SC 124.”Per TUR, J.C.A.(P. 84, paras. B-C)

17. ELECTION PETITIONS – TIME LIMIT TO FILE A PETITION: Time limit within which an election petition can be filed

“Section 141 of the Electoral Act, 2006 which reads that: “141. An election petition under the Act shall be presented within thirty (30) days from the date the result of the election is declared.” The above provisions have been subject to judicial interpretation that one does not need to go into detail argument but I shall cite a few, namely, Ogbebor v. Danjuma (2003) 15 NWLR (Pt.843) 403 at 426 – 427; Kumalia vs. Sheriff (2008) All FWLR (Pt.431) 1032 at 1045 – 1046; Akume v. Lim (2008) 16 NWLR (Pt.1114) 490 at 502 etc. These judgments were however based on their peculiar circumstances. The facts are that election held on Saturday, 21st April, 2007. The 30th day for presentation of the petition at the Registry of the Tribunal terminated on Sunday, 20th day of May, 2007. There is not evidence that the Registry of the Tribunal was opened on Sunday 20th day of May, 2007 for business. The Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990 Section 15(2) (a) (b) (3)(4) and (5) considers Sunday as a “public holiday.” To expect the petitioners to present their petition on Sunday is therefore absurd. Section 147(3) (5) and 164(1) Rules of Procedure for Election Petition set out the duties of the petitioner when they go to the Secretary of the Tribunal to present a Petition and what is expected of the secretary to do upon receiving the petition, namely, receive the petition, issue a receipt and certify them as true copies etc. In the absence of evidence the Registry opened on Sunday, 20th May, 2007 I hold that it was reasonable for the Petitioners to have filed their petition on Monday, 21st May, 2007. See also Agbai v. INEC 14 NWLR (Pt.1108) 417 at 343.”Per TUR, J.C.A.(Pp. 64-65, paras. A-B)

18. ELECTION PETITIONS – VOTERS’ REGISTER: Whether sworn deposition can be used to contradict, alter, add to or vary the contents of the Voters Registers

“Sworn deposition by the 1st Petitioner could not, as rightly held by the tribunal be used to contradict, alter, add to or vary the contents of the Voters Registers. See Section 132(1) of the Evidence Act 1990. See Union Bank of Nigeria v. Sax Nig Ltd (1994) 9 SCNJ 1; Wayne (W.A) Ltd v. Ekwunife (1989) 12 SCNJ 99 and Union Bank of Nigeria Ltd v. Ozigi (1994) 3 SCNJ 41.”Per TUR, J.C.A. (P. 81, paras. C-E)

 

MAIN JUDGMENT

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment):

The Independent National Electoral Commission (INEC) conducted into the House of Representatives Katsina Central Federal Constituency on Saturday 21st April, 2007. ALHAJI BADAMASI KABIR (1st Appellant) contested on the platform of the Peoples Democratic Party (2nd Appellant) while MUSA DAMALE KAITA (1st Respondent but now deceased) did so on the platform of the Action Congress (2nd Respondent). Other candidates were also sponsored by other political parties. They are not parties in this appeal hence I shall not concern myself with their scores. At the end of voting the Independent National Electoral Commission’s Officials on the same day declared ALHAJI BADAMASI KABIR of the Peoples Democratic Party as having polled 84,076 votes while late MUSA DAMALE KAITA (deceased) of the Action Congress was credited with 3,916 votes and YUSUF of the All Nigeria Peoples Party Polled 16, 351 votes.

 

On Monday 21st May, 2007 late MUSA DAMALE and the Action Congress Party presented a joint petition before the Election Tribunal seeking inter alia the following reliefs in paragraph 18 of the Petition:

“(a)    An order nullifying the entire election held on the 21st April, 2007 more particularly as it relates to the office Member Representing Katsina Central Federal Constituency of Katsina State at the Federal House of Representative.

(b)     An order directing the 3rd to 285th Respondents to conduct a fresh election throughout Katsina Central Federal Constituency for the purpose of determining the actual winner to the office of member representing Katsina Central Federal Constituency of Katsina State at the Federal House of Representative.

The Respondents filed their replies to the petition. Thereafter the matter went to trial. The parties called oral and documentary evidence, at the close of hearing learned counsel submitted written addresses. On 27-02-2008 the Tribunal delivered judgment holding at page 754 lines 20-25 to page 756 lines 1- 7 of the printed record that:

“The Tribunal will not however go into the process of determining the actual un-accredited voter. The reason being that the photocopied voters register makes it difficult to arrive at the actual voters affected. We however do know that 71 out of 252 Polling Units were affected. It is therefore our view that this malpractice which cuts across at least one third of the Constituency should not be treated lightly. It should be mentioned at this stage, that it is not just any slight or inconsequential electoral malpractice that will invalidate the result of an election as the law recognizes that non-compliance with Electoral Provisions or commissions of electoral offences do occur. They occur in many instances. But the law is more concerned with the extent, how far and mode they did occur. And also how substantially did they affect the election result. Ojukwu vs. Onwudiwe (1984) SCNLR 247 and Awolowo vs. Shagari (1979) 6 – 9 SC 51.

 

In Dashe vs. Bawa (1989) 1 NEPLR 71 the Court held that if the nature of non-compliance is such as to give an obvious advantage to one of the parties to the election such non-compliance is substantial and unless there is evidence to the contrary has affected the result of the election in favour of the party who enjoyed the advantage and against the party who has suffered a disadvantage.

 

On the whole, we ask the final question which is whether this non-compliance did not and could not have had an impact whatsoever on the election in which case INEC be given a pat at the back for a job well done? We say No! as where breaches of election rules even though trivial have affected the results that in itself is enough to compel the Court to declare the result void.

In view of our earlier findings that unlawful votes were credited to parties which such votes cannot be ascertained, the proper order to make in the circumstance is to annul the election and order for a fresh election. Consequently, the election to the office of Member representing Katsina Central Federal House of Representatives Katsina Central Federal Constituency held on 21-04-2007 is hereby annulled and INEC is hereby ordered to conduct a fresh election within 60 days.”

Being aggrieved ALHAJI BADAMASI KABIR and the Peoples Democratic Party jointly filed Notice of Appeal on 17/03/2008 containing nine grounds praying that the judgment of the Tribunal be set aside. In the course of this appeal MUSA DAMALE KAITA died and on 10/04/2010 leave was granted the Appellants to have his name struck out from the proceedings. On 02/03/2010 the Appellants amended their joint Notice of Appeal and brief to reflect these changes. The Amended brief filed on 02/03/2011 was deemed filed on 12/04/2010 and adopted on 18/01/2010 during hearing. There is no brief by the Action Congress in this appeal though served all the processes. The 3rd -285th Respondents filed brief on 15/04/2010 which counsel adopted on 18/01/2011 when this appeal was called for hearing. The 1st and 2nd Respondents did not file any brief of Argument.

Learned Counsel to the Appellants formulated the following issues for determination in the Appellants Amended brief:

ISSUES FOR DETERMINATION

1. Whether it was right for the Tribunal to have distilled and ascertained for itself, the grounds for the petition under the guise of doing substantial justice when no ground was stated therein (arising from ground 6 of the Grounds of Appeal).
2. Whether it was right for the Tribunal to have relied on or attach probative value to the Register of Voters for 11 Registration Area in the Constitutions (Exhibit P1(a-v) – P11(a-q) and the depositions in paragraphs 1(1)-1(13), 14 – 17, 18, 20, 22, 25 – 27, 32 – 34 of the 1st Respondent’s Additional Witness Statement on Oath (Exhibit P40) after properly evaluating and rejecting or discrediting the said Respondent’s Additional Witness Statement on Oath (Exhibit P40) after properly evaluating and rejecting or discrediting the said Register and Witness Statement. (Arising from grounds 1 & 2 of the Grounds of Appeal).
3. Whether it was right for the Tribunal to have admitted in evidence and rely on the dispositions in paragraphs 1(1)-(13), 14-17, 18, 20, 22, 25 – 27, 32 – 34 of Exhibit P40 (the 1st Petitioner’s Additional Witness Statement on Oath) having regard of the state of the pleadings and the Tribunal’s earlier refusal of the petitioner’s application to amend their Petition (arising from grounds 3, 4, & 5 of the Grounds of Appeal).
4. Whether there is any admissible and probative evidence in support of the finding of the Tribunal that non-accreditation or proper accreditation affected not less than 70 polling units in the eleven Registration Areas complained of by the 1st and 2nd Petitioners regard being had of the fact that no voters, electoral official, polling or collation agents testified in respect of the election (Arising from ground 7 and 10 of the Ground of Appeal).
5. Whether the nullification of the election of the 1st Appellant by the Tribunal can be justified regard being had of the admissible and probative evidence before the Tribunal and its finding that the unlawful votes credited to the parties could not be ascertained (Arising from grounds 8 & 9 of the Grounds of Appeal).
6. Whether having regard to the provision of Section 141 of the Electoral Act, 2006, the Petition as filed was not incompetent and the lower Tribunal disrobed of the jurisdiction to entertain same.”

Issue six and one complains about the competency and albeit the jurisdiction of the Tribunal to entertain the Petition hence I shall consider first, issue six followed by issue one. This is because if the Petition was not brought within the statutory period the tribunal will lack the jurisdiction to entertain it.

ISSUE SIX

Issue six read as follows:-

“Whether having regard to the provision of section 141 of the Electoral Act, 2006, the petition as filed was not incompetent and the lower Tribunal disrobed of the jurisdiction to entertain same.”

Counsel referred to Section 141 of the Electoral Act, 2006 which reads that:

“141.           An election petition under the Act shall be presented within thirty (30) days from the date the result of the election is declared.”

The above provisions have been subject to judicial interpretation that one does not need to go into detail argument but I shall cite a few, namely, Ogbebor v. Danjuma (2003) 15 NWLR (Pt.843) 403 at 426 – 427; Kumalia vs. Sheriff (2008) All FWLR (Pt.431) 1032 at 1045 – 1046; Akume v. Lim (2008) 16 NWLR (Pt.1114) 490 at 502 etc. These judgments were however based on their peculiar circumstances.

The facts are that election held on Saturday, 21st April, 2007. The 30th day for presentation of the petition at the Registry of the Tribunal terminated on Sunday, 20th day of May, 2007. There is not evidence that the Registry of the Tribunal was opened on Sunday 20th day of May, 2007 for business. The Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990 Section 15(2) (a) (b) (3)(4) and (5) considers Sunday as a “public holiday.” To expect the petitioners to present their petition on Sunday is therefore absurd. Section 147(3) (5) and 164(1) Rules of Procedure for Election Petition set out the duties of the petitioner when they go to the Secretary of the Tribunal to present a Petition and what is expected of the secretary to do upon receiving the petition, namely, receive the petition, issue a receipt and certify them as true copies etc. In the absence of evidence the Registry opened on Sunday, 20th May, 2007 I hold that it was reasonable for the Petitioners to have filed their petition on Monday, 21st May, 2007. See also Agbai v. INEC 14 NWLR (Pt.1108) 417 at 343. There is no substance in this issue.

ISSUE ONE

Learned counsel to the appellants attacked the tribunals’ judgment for holding that though no grounds were specifically set out in the Petition the whole paragraphs should be read together so as to determine the grounds upon which the petition was predicated. Counsel referred to Section 145(1)(a)-(d) of the Electoral Act, 2006 and paragraphs 4(1)(d) of the First schedule to the Act supra together with the case of Ogboru v. Ibori (2004) 7 NWLR (pt.871) 192 in support of his contentions. But the case of Ogboru vs Ibori supra was not determined under the Electoral Act, 2006 but the Electoral Act 2002. Courts and Tribunals are enjoined to avoid blind adherence to previous statutes when considering issues for determination unless they are imparimateria. See Nwobodo v. Onoh (1984) NSCC 1 at 14. Laws are usually repealed or amended to take care of present day social changes hence the best manner of knowing the intention of the legislature is to interprete and apply the law in force at the time the cause of action accrued or arose. See Onuoha vs. COP (1959) 4 FSC 23; Ojokolobo v. Alamu (1987) 7 SCNJ 98 at 145 and Ebiriukwu vs Ohanyerewa (1959) 4 FSC 2121.

Learned counsel argued that just as the parties are bound by the pleadings, likewise the Tribunal, citing Fagbenro vs. Arobadi (2006) All FWLR (Pt.310) 1575 at 1596; Ajadi v. Ajiobola (2004) 16 NWLR (Pt.898) 91 at 169 – 170 and Ezeobi v. Nzeka (1989) 1 NWLR (Pt.98) 478 at 489. It was therefore submitted that since the petition did not specifically set out the grounds upon which it was predicated surprises were sprung on the appellants contrary to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 thereby breaching the rule of fair hearing. Counsel referred to Bunge v. Governor, River State (2006) All FWLR (Pt.325) 21. This court was called upon to resolve this issue in favour of the Appellants.

Learned counsel to the 3rd to 285th Respondent did not cross-appeal nor file a notice that the judgment of the Tribunal should be affirmed on other grounds yet posed the following question showing they were challenging or attacking the judgment under appeal as follows:

“Whether the Trial Tribunal’s decision in nullifying the election and ordering a fresh election is justifiable, having regard to the nature and the totality of admissible evidence adduced by the Petitioners in support of their allegations.”

Learned Counsel to the 3rd – 285th Respondents submitted at page 6 paragraph 4.0 to page 18 paragraph 4.39 giving reasons why the appeal should be allowed and the judgment of the Tribunal set aside namely, that (a) there was no evidence in support of the Petition worthy of rebutting the presumption of correctness, genuiness and regularity of the declaration of 1st Appellant as duly elected and (b) the Petitioners did not discharge the evidential burden on them.
I need not go into the details of setting out verbatim the total submissions of the learned counsel to the 3rd – 285th Respondents since their duty is not to attack the judgment but to support it on appeal. In Obi v. INEC (2007) 11 NWLR (Pt.1046) 565, Mohammed JSC held at page 673-674 as follows:-

“…This court has stated in so many of its decisions that the traditional role of the respondent to an appeal is to defend the judgment appealed against. If any respondent wants to depart from this traditional role by attacking the judgment appealed against in any manner, that respondent is obliged by the rules of Court to file a cross-appeal. See Lagos-City Council vs. Ajayi (1970) 1 All WLR 291; Eliochin (Nig) Ltd & Ors vs. Victor Ngozi Mbadiwe (1986) 1 NWLR (Pt.14) 47; and Adefulu vs. Oyesile (1989) 5 NWLR (Pt.122) 377 at 417.

It is also the law that a respondent to an appeal who neither files a cross appeal nor a Respondent’s Notice, will not be allowed to even file a brief of argument in the course of the hearing of the appeal. See Oguma vs. Associated Companies Ltd v. I.B.N.A. Ltd (1988) 1 NWLR (Pt.73) 658 and Kotoye v. Central Bank of Nigeria Ltd (1989) 1 NWLR (Pt.98) 419.

Therefore without a cross-appeal, the 6th and 7th Respondents are not competent to play the role of an Appellant they have attempted to play in this appeal. The effect of the action of these respondents in the present appeal is that all the arguments in their respondent’s brief in support of the case of the Appellant in this appeal shall be ignored in its determination.”

Accordingly, having attacked rather than defended the judgment of the Tribunal without cross-appealing, I shall disregard the arguments set out in the 3rd – 285th Respondents brief and concentrate on the arguments canvassed by the 1st and 2nd Appellants.

In my humble view the Supreme Court has laid it down that the whole tenor of the pleadings should be examined to determine the real issues in controversy. See Emesie vs. Onuaguluchi (1995) 12 SCNJ 120 at 131; Fadlallah vs. Arewa Textiles Ltd (1997) 7 SCNJ 202 at 217.

Section 145(1)(a)-(d) of the Electoral Act, 2006 sets out in clear terms the grounds upon which an election or return may be questioned by a Petitioner by providing as follows:

“145(1) An election may be questioned on any of the following grounds:

(a)     that a person whose election is questioned was, at the time of the election, not qualified to contest the election:

(b)     that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c)     that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d)     that the Petitioners or its candidate was validly nominated but was unlawfully excluded from the election.”

(2)     An act of omission which may be contrary to an instruction or directive of the commission or of the an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”

When the lawmaker provides that the petitioner shall set out the ground for questioning an election it simply means the petitioner shall provide the reasons, points or basis upon which he relies to challenge the validity of the election or return of the candidate in whose favour the declaration was made. This is because in arriving at a decision the Tribunal must ground the judgment on points or grounds of law and fact. There can be no judgment without a ground, basis or reasons which must be determined from the whole contents and tenor of the Petition. In ordinary civil cases, there are times the pleadings of the plaintiff and defendant have to be read together to determine the issues in controversy. See Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 at 182-183; Akintola vs. Solano (1986) 2 NWLR (Pt.24) 598 and Ishola v. UBN Ltd (2005) All FWLR (pt.256) 1202 at 1211 paragraph “D”.

Therefore, I shall have recourse to the entire facts in the Petition in the determination of the argument in issue.

Paragraphs 1 – 11 of the petition is a narration of the facts that led to the holding of the election of 21st April, 2007 and the votes polled by each candidate. Paragraph 12(i)-(xiii) gives particulars of the complaints. They read as follows:-

“PARTICULARS OF COMPLAINTS

(i)      The petitioners shall lead evidence to show that contrary to the requirements of the Electoral Act, and the Election manual, voters in about 149 polling stations that make up katsina Central Federal Constituency were denied the opportunity to exercise their franchise as voting did not take place in the said polling station due to absence of electoral materials. The petitioners will rely on the voter’s card of some of the Electorates in the aforesaid polling stations and such are substantial and capable of affecting the election result had it taken place.

(ii)     The Election is replete with non-compliance of the provisions of the Electoral Act which non-compliance it shall be contended are substantial and capable of rendering the purported result of the election null and void.

(iii)    The petitioners shall also rely on the Register of Voters for the aforesaid polling stations/units together with statement of Ballot papers issued to all the polling units within Katsina Central Federal Constituency.

(iv)    The purported Election of the 1st Respondent is unlawful and fraudulently obtained, without regard to due process as required by law. Reliance shall be put and evidence of expert to show thumb prints which appears on the ballot papers of about 285 polling stations in Katsina Federal Constituency, were thumb printed by one or more individual without regard to the provisions of the Electoral Act and in total disregard to the register of voters of the units.

(v)     It shall also be established that there are cases of arbitrary award of votes by thumb printing by one or more individuals without regard to the provisions of the Electoral Act and in total disregard to the register of voters for the units.

(vi)    The petitioners will lead evidence to show that contrary to the requirement of the Electoral Act, results were declared when no election took place in most of the polling stations, voters were not accredited before the purported election, and the register of voters were not marked which gave room to multiple voting at various polling units.

(vii)   The petitioners shall contend that even in Wakilin Kudu “II” Wakilin “III, Wakilin Yamma “I” and Wakilin Gabas “III Registration Areas/Wards in Kastina Local Government where election took place voters were not accredited before voting commenced consequently the register of voters were not marked which gave room for multiple voting at the various polling stations.

(viii)   That the election was characterized with thuggery, intimidation of voters, snatching of election materials and arbitrary award of votes contrary to the actual votes cast and this were made possible by the active connivance of the respondents either by themselves, agents or privies for the direct benefits of 1st and 2nd Respondents.

(ix)    The petitioners shall further lead evidence to show that the purported election was characterized by over voting, unauthorized movement of ballot papers, multiple registration, multiple voting and none-accounting of ballot papers in all the polling units that make up Katsina Central Federal Constituency.

(x)     It shall be further established at the trial of this petition by the evidence of hand writing expert and shall seek for the direction of the Honourable Tribunal for the appointment of an independent expert to verify the thumb print on the ballot papers within the ballot boxes with the serial numbers contained in the report of inspection as ordered by the Honourable Tribunal on Thursday the 17th of May, 2007.

(xi)    The petitioners shall also lead evidence to show that Ballot Papers which were otherwise invalid by reason of multiple thumb printing were credited and counted for Peoples Democratic Party (PDP).

(xii)   That the 1st and 2nd Respondents resorted to the use of thuggery, intimidation, harassment and outright snatching of ballot boxes and ballot papers and other electoral materials with the active connivance of 3rd to 285th Respondents either by themselves, agents, or privies for the direct benefits of 1st and 2nd Respondent.

(xiii)   The Petitioners state that they had cause to make an initial complaint to the officers of the 3rd Respondent concerning the conduct of the election in 51 polling units the said letter of complaint dated 21st day of April, 2007 is hereby pleaded and shall be relied on at the hearing of this petition.”

In paragraph 12(i)(ii) (iii) (vi) (vii) the complaint is that voting did not take place due to absence of electoral materials or non-accreditation of voters. In paragraph 12(iv) and (v) it is averred that the election was based on unlawful and fraudulently obtained votes without regard to due process in that one person thumb printed all the ballot papers from the 285 polling stations in the Federal Constituency. In paragraph 12(viii) it is the case of the petitioner that there was thuggery, snatching of electoral material and arbitrary award of votes. Over voting is pleaded in paragraph 12(ix) and (xi). The petitioner was to call expert evidence to verify the thumb prints on the ballot papers. Lastly is paragraph 12(xiii) which pleaded that a protest letter was sent to the relevant authorities in respect to these allegations. These complaints can be grouped under two main heading, namely, that the election was invalid by reason of non-compliance and secondly, that the 1st Appellant was not duly elected by majority of lawful votes cast at the election contrary to Section 145(1) (b) and (c) of the Election Act, 2006. The Tribunal held at page 744 lines 20 – 26 of the printed record as follows:-

“As to the issue, that there is no legally recognizable ground in the Petition as permitted by Section 145(1) of the Electoral Act, 2006 to sustain the petition, we say that in doing substantial justice in the hearing of an Election Petition, a Tribunal or Court shall be at liberty to read through the facts pleaded, paragraph by paragraph and match them with the evidence in support of the pleadings, without confining or restricting itself to a particular paragraph. See Ajadi v. Ajibola (2004) 16 NWLR (Pt.898) 91 at 169…”

That is the correct position of the law. See also Anigala v. Abeh (1999) 7 NWLR (Pt.611) 454 at 467. I hold that there is no substance in this issue for determination. I resolve it against the appellants.

ISSUES TWO, THREE, FOUR AND FIVE

Issues 2 – 5 distilled by the Appellant for determination all boil down to whether there was credible evidence upon which the Tribunal could have nullified the return and ordered fresh election in the constituency. The argument of the learned counsel to the Appellants is predicated on the ground that the Tribunal could not determine from the Voters Registers the complaints that there was no accreditation and part of the deposition of the 1st Petitioners Additional Witness Statement on Oath following the Tribunal’s comments in respect of them showed they could not prove or support the allegation of lack of accreditation.  Learned counsel cited a plethora of authorities in support of his argument.

VOTERS’ REGISTERS

The Tribunal said as follows concerning the Voter’s Registers tendered by the Petitioners at page 750 lines 14 – 25 to page 751 lines 1 – 25 of the printed record:

“Once a document is received in evidence and so marked, it becomes an evidence before the court and under the provisions of section 91(1) of the Evidence Act, the Tribunal has a duty to evaluate the probative value of every documentary evidence tendered before it. Awuse vs. Odili (supra), Ngwumohaike (1993) 3 NWLR (Pt.283) 612. This Tribunal therefore has a duty to evaluate the probative value of the voters register as well as the Result Forms tendered by the petitioner in this petition.

MARKINGS ON VOTER’S REGISTER

According to the “Manual for Election Official 2007” Exhibit P68 page 17 thereof, to indicate that a voter has been accredited and will be voting in the election, the Polling Clerk shall tick the Register as follows:-

“Governorship and State Assembly Elections tick the Register in blue ink and in the Presidential and National Assembly elections, tick the said Register in red ink.”

But the petitioners have tendered Exhibit P1(a)-(i) to P30(a)-(f) that is to say, Register of voters for the 11 Registration Areas in the Constituency in photocopies though certified by INEC. In the circumstance, we are not in a position to determine the colour of the ink used to make the tick or marking in the register. In fact, the Petitioners ought to have gone further to tender the original copy of the Register, as the colours used in ticking or marking same cannot be discerned or ascertained from a Certified True Copy thereof, which is a mere photocopy of the  original. In fact, there is nothing before us to show, that they had subpoenaed INEC to produce the original and they refused. But for the purpose of this judgment, we shall take the presence of the single and double ticking, with black ink, to mean accreditation for both the Governorship and State Assembly Elections on one hand and Presidential and National Assembly will therefore treat every voter accredited or marked in the Register of Voters as having been accredited in respect of the election in dispute.
Where there are two ticking we take one as evidence of accreditation in respect of election in dispute. Where there is a ticking we still take it as evidence of accreditation in this election as there is no evidence as to which election it was made. And doubts are usually resolved in favour of the Respondents.
The onus of proving there was no accreditation of voters was on the party complaining, namely, the Petitioners. Once the Petitioners were unable to prove the allegations beyond reasonable doubt the onus does not shift to the Respondents to prove there was accreditation. In Akinfosile v. Ijose (1960) 5 FSC 192 the Federal Supreme Court held at page 199 that:

“…a petitioner who alleges in his petitions a particular non-compliance and avers in his prayer that the non-compliance was substantial, must so satisfy the Court. This petitioner failed to do. It follows therefore, that I would allow this appeal, set aside the judgment of the Court below with the order for costs so far as the first respondent is concerned, and order that the petition should be dismissed….”

 

The Tribunal was unable to determine the colour of the ink used to make the ticking or markings in the Voters Registers because the petitioners produced photocopied certified true copies. The onus was on the Petitioners to have subpoenaed or produced credible evidence to prove their complaints beyond reasonable doubt. Non-compliance constitutes electoral malpractice that has to be proved beyond reasonable doubt. See Maikudi v. Musa (2004) All FWLR (Pt.230) 1096 1111-1112; Atikpekpe v. Joe (1999) 6 NWLR (Pt.607) 428-440 and Kingibe v. Maina (2004) ALL FWLR (Pt.191) 1555 at 1588.

The duty of the Tribunal is not to descend into the arena to determine which ticking or markings prove which election was held on 21st April, 2007. The Tribunal entered into the arena of speculation to do cloistered justice or to prove what the petitioners should have done in open court.

The burden is on the party who takes another to a court or Tribunal to prove the allegations and to show his entitlement to any relief claimed. See Tangale Traditional Council v. Fawu (2002) FWLR (Pt.117) 1147 at 1165 paragraph “B”.
The circumstance from which any inferences can reasonably be drawn as to the accuracy or otherwise of the marking in the Photocopied Voters Registers, though allegedly certified as true copies, was called into question under Section 92(1) of the Evidence Act 1990. The Tribunal should not have attached any weight to the Voters Registers tendered by the Petitioners. See Alhaji Onibudo & ors v. Alhaji Akibu & ors (1982) 7 SC 60 and Ivienabov v. Bazuaye (1999) 6 SCNJ 235-243.

Where there is ambiguity in a document tendered by a party in support of his claim that will be construed against him. See Alhaji Adamu v. Alhaji Bauchi (1977) NNLR 131 at 132 and Section 133(3) of the Evidence Act 1990 which provides that:

“(3)   If the words of a document are as defective or ambiguous as to be unmeaning, no evidence can be given to show what the author of the document intended to say.”

Moreover, the Tribunal held that doubts in the evidence existed and thus was to be resolved in favour of the Respondents. That is the correct legal position. See Ikhane v. COP (1977) 6 SC 119; Nasamu v. The State (1979) 6-9 SC 153 at 159 and Udosen v. The State (2007) 4 NWLR (Pt.1023) 125 per Ogbuagu JSC at p.16 paragraph “C-F”.

In arriving at the decision to nullify the election the Tribunal further relied on the 1st Petitioner’s Additional witness statement on oath by holding as follows at page 747 lines 13-26 to page 748 lines 1-9 of the printed record as follows:

EXHIBIT P40 AND PURPOSE INTENDED

The 1st Petitioner in his said statement on oath Exhibit P40 had this to say among others:

“That I discovered in the course of inspection that votes were returned without accreditation of voters as provided for in the Manual for Election Officials, 2007.

KATSINA LOCAL GOVERNMEBNT WALKING YAMMA ‘1’ WARD 004
(1) At Makudawa M. Musa K/G 001 polling units the register of voters shows 745 Form EC8A shows 474 with the total votes of 426 while no voters was accredited to vote.”

The 1st Petitioners then goes on to give what is contained in the Register of Voters. Form EC8A and the total votes cast in respect of 128 Polling Stations and the fact that “no voters were accredited to vote. In our view, what the 1st Petitioner is attempting to do is to prove the content of written INEC documents by oral or affidavit evidence as it is that the only evidence admissible in respect of any official transaction reduced into writing is the document containing the transaction or admissible secondary evidence containing the transaction or admissible secondary evidence thereof. See Awuse v. Odili (supra) where the Court of Appeal held thus:

“The only evidence admissible in any transaction reduced into writing is the document containing the transaction and is not permissible to any party to seek to prove or contradict such evidence, written documents by oral or affidavit evidence. See Section 132 of the Evidence Act, Cap.112 Laws of the Federation of Nigeria 1990. Olanlege v. Agro Continental Nig. Ltd (1996) 7 NWLR (Pt.458) 2940 (underling ours for emphasis).”

Accordingly, save for his personal narration contained in paragraphs 1(1)-(13): 14-17; 18; 20-22; 25-27; 32-34 which remain, all other portions of the said Exhibit being attempts at proving the contents of a written document by oral evidence, are rejected as they offend against the evidence Act and our authority for doing this Awuse v. Odili (Supra) and Ajero v. Ogoriji (1999) 10 NWLR (Pt.621) where it was held, that the testimony of a witness can be rejected in part.”

Having rejected in part the contents of Exhibit P40 the Tribunal still went ahead to make use of Exhibit P40 at page 753 lines 5-12 of the printed record as follows:

“Exhibit P40 is the evidence according to the Petitioners; those voters were never accredited in about 129 Polling Stations he had referred to at page 3-18 of the said Exhibit as he had in his statement at the end of each Polling Units the words “no voters were accredited to vote”. On our part we say, this is not true as his said statements would apply only to about 22 polling Stations that showed no evidence of ticking whatsoever. The rest had evidence of accreditations. There was indeed accreditation and we so hold.”

Having held that there was evidence of accreditation, this was enough to have thrown out the petition. The Tribunal could not have relied on evidence of non-accreditation nor there was no voting in 22 polling stations in the absence of any credible Voter’s Registers which was the duty of the appellants to have produced before the Tribunal, not the Respondents. Sworn deposition by the 1st Petitioner could not, as rightly held by the tribunal be used to contradict, alter, add to or vary the contents of the Voters Registers. See Section 132(1) of the Evidence Act 1990. See Union Bank of Nigeria v. Sax Nig Ltd (1994) 9 SCNJ 1; Wayne (W.A) Ltd v. Ekwunife (1989) 12 SCNJ 99 and Union Bank of Nigeria Ltd v. Ozigi (1994) 3 SCNJ 41.The decision of the Tribunal is therefore not supported by the weight of evidence; moreover, on 26-09-2007 at lines 1-16 of the printed records the Tribunal had refused an application by the Petitioners to grant them leave to amend the Petition to incorporate the 1st Petitioners sworn deposition in the following language;

“The application for amendment of this Petition, was filed on 19th October, 2007 i.e. about five months from 21st May, 2007 when the 30 days limited by section 141 of the Electoral Act, 2006 for filing of the Petition expired, as the result of the Election having been declared on 21st April, 2007. The proposed amendment, running into 17 pages seeks to introduce alterations and or additions to the Petition by bringing in new facts of voting or recording of votes, without accreditation in about 125 Polling Units not named in the original Petition and new facts of votes exceeding the number of votes on the register in about 72 Poling Units not named in the original Petition which the Petitioners applicants term as vital information, which to us, are crucial material and substantial. Accordingly, we hold that they are attempting to make substantial or material alterations to the facts of this Petition at this late hour. Reliance being placed by the Petitioners on the provisions of the Federal High Court (Civil Procedure) Rules in support of this application in our opinion, is misconceived, as the said Rules do not apply to an amendment of the nature sought by the Petitioners brought after the expiration of the 30 days limited for the filing of the Petition. This is in view of the fact, that subparagraph 1 of paragraph 14 of the First Schedule to the Electoral Act 2006 which makes provisions for the application of the Civil Procedure Rules relating to amendments of pleadings is expressly made subject to subparagraph 2 of the same paragraph 14. See Obi Odu v. Duke (No.2) (2005) 10 NWLR (Pt.932) 105 at page 145 “F-G” wherein the Court of Appeal held thus:

“The general principles of amendment in normal civil matters are not applicable in election petition (see Okafor v. Ikeanyi (1969) 12 NSCC 1st Edition page 43 at 47).”

The rules of procedure of the Federal High Court provide no succour to the Applicant in this Petitioners’ Petition and it is satisfied that the alleged non-compliance or malpractices for example, in Wakilin Kudu “II”, Wakilin Yamma “F” Wakilin Gabas “II” among others have been pleaded in the main Petition hence it in needless to supply this Tribunal now with the alleged vital information pertaining thereto among others. Finally, this Tribunal in the light of all that have been said above on the authority of its earlier Ruling in Petition No. NA/HR/EPT/KTS/42/2007 of 25th October, 2007 Alhaji Abubakar Lawal Kaita and Another v. Alhaji Kabir Ahmed Kofar and 315 others will have to refuse the prayers of the Petitioner/Applicants and accordingly, the said Motion is hereby struck out.”

But the Tribunal over-ruled this ruling by admitting the deposition as Exhibit p40 and making use of what had previously been rejected at page 753 lines 5-12 of the printed record as follows:

“Exhibit P40 is the evidence according to the Petitioners, that voters were never accredited in about 129 Polling Stations he had referred to at page 3-18 of the said Exhibit as he had in his statement at the end of each Polling Unit the words “no voters was accredited to vote”. On our part we say, this is not true, as his said statements would apply only to about 22 Polling Stations that showed no evidence of ticking whatsoever. The rest had evidence of accreditation. There was indeed accreditation and we so hold”.

The Tribunal had no legal right to have subsequently over-ruled itself in the course of trial since there was nothing to show that the ruling was giving without jurisdiction. See Obimonure v. Erinosho (1966) 1 ALL NLR 250; Iro Ogbu v. Urum (1981) 4 SC 1 and Ojiako v. Ogueze (1962) 1 ALL NLR 58. Rejected evidence be it documentary or oral cannot be later used in the course of trial. See Akpamyong v. Essiet (1975) 3 SC 107; Arubi v. Offshore Operators (Nig) Ltd (1978) 342 at 345 and Babatola v. Aladejona (2001)6 SC 124. Exhibit p40 has contributed in affecting the overall judgment of the Tribunal. See Section 227(1) of the Evidence Act 1990.

I resolve issues 2, 3, 4 and 5 in favour of the Appellants. On the whole I allow this appeal and dismiss the Petition before the Tribunal. I affirm that ALHAJI BADAMASI KABIR of the Peoples Democratic Party was duly elected into Federal House of Representatives to represent Katsina Central Federal Constituency on 21st April, 2007. I award N50, 000.00 costs to the Appellants.

MARY U. PETER-ODILI, J.C.A.:

I have had the privilege of reading the draft judgment of my learned brother, Joseph Tine Tur JCA, which decision and reasoning I agree with. I have nothing more to add except to say that I too allow the appeal. I abide by the consequential orders made by my brother.

OBANDE OGBUINYA, J.C.A.:

I have had a preview of the leading judgment delivered by my learned brother, Joseph T. Tur, JCA. I agree with his reasons and conclusions. The facts, the grounds, the issues and the arguments in this appeal are adequately set out in the leading judgment. It is, therefore, pointless to go the whole hog repeating them. I will emphasise some issues

In this contribution, my first port of call, as ordained by law, is to deal with issue six touching on the jurisdiction of the tribunal to hear the petition. It reads:

 

“Whether having regard to the provision of section 111 of the Electoral Act, 2006, the petition as filed was not incompetent and the lower tribunal disrobed of the jurisdiction to entertain same.”

To do justice to this stubborn issue, the provisions of section 141 of the Electoral Act, 2006 comes in handy. It provides:

“141.           An election petition under this Act shall be presented within thirty (30) days from the date the result of the election is declared.”

Also, the prescription of section 15 of the Interpretation Act, Cap. 123 Laws of the Federation of Nigeria, 2004, is of note. I will, at the risk of prolixity, but borne out of necessity reproduce it, verbatim ad literatim, thus:

” 15. Time

(1)     A reference in an enactment to the time of day is a reference to the time which is one hour in advance of Greenwich Meantime

(2)     A reference in an enactment to a period of days shall be construed –

(a)     where the period is reckoned from a particular event, as excluding the day on which the event occurs;

(b)     where apart from this paragraph the last day of the Period is a holiday, as continuing until the end of the next following day which is not a holiday.

(3)     Where by an enactment any act is authorised or required to be done within a particular day and that day is a holiday, it shall be deemed to be duly done if it is done on the next following day which is not a holiday.

(4)     Where by an enactment any act is authorized or required to be done within a particular period which does not exceed six days, holidays shall be left out of account in computing the period.

(5)     In this section “holiday” means a day which is a- Sunday or a Public holiday-”

The formula for measuring statute-bar is very simple. A court is enjoined to examine a writ of summons or statement of claim, filed by, a party, which invariably discloses when (the date) the cause of action arose and situate it with the date when the writ of summons or action was filed in court. If the date of filing, as endorsed on the writ, is beyond the period allowed by the limitation law, then the action is statute-barred. If the period is within the time frame prescribed in the limitation statute, then it is not caught by statute-bar. See Elabanio v. Dawodu (2006) 15 NWLR (pt.1001) 76;  Mit. Admin., Ekiti State v. Aladeyelu (supra); Duzu v Yunusa (2010) 10 NWLR (pt.1201) 80; Hassan v Aliyu (2010)17 NWLR (Pt.1223) 547.

Now applying this simple method/mode, for gauging statute-bar, to the first and second respondents’ petition, was it statute-barred? As can be garnered from the petition, the election was conducted on 21/04/2007 and the result declared on that day 21/04/07. See page 14 of the record. That is to say, the first respondent’s cause of action accrued from 21/04/2007 when that result was declared, See Woherem v. Emereuwa (2001)13 NWLR (Pt.890)398.
The petition was filed on 21/05/2007. See pages 1 and 29 of the record. The petition is an equivalent of statement of claim in ordinary civil proceedings, see Egolum v. Obasanjo (1999)7 NWLR (Pt.611) 355. I have, as decreed by law, married the date the cause of action of the first and second respondent matured, id est, 21/04/2007, and the date their petition was presented to wit: 21/05/2007 with the mandatory provision of section 141 of the Electoral Act, 2006.

By law, the date on which an event occurred is not counted in the process of calculating the period enshrined in any legislation: In the same vein, where the last day slated for the happening of an event is a public holiday, the limited period is extended or prolonged to the next working day. The provision of section 15(2) (b) of the Interpretation Act is a living proof.

In the case of Akeredolu v. Akinremi (1985)2 NWLR (Pt.10) 787 at 794, the Court of Appeal, Ibadan Division, delivered a judgment on 10/04/1985 while the appellants lodged an appeal against it on 10/07/1985. The applicants/respondents raised a preliminary objection to the appeal, before the Supreme court, that it was filed out of time by one day contrary to the provision of section 31 (2) of the Supreme Court Act, 1960 which provided for three months for an appeal against a final decision. The preliminary objection was overruled. Aniagolu, J.SC, opined:

“It would follow that in computing the period for the filing of the appeal in this matter the date – 10th April, 1985 – on which the Court of Appeal delivered its judgment must be excluded. The calculation thus begins on 11th April, 1985 and three months from hence must end at midnight of 10th July, 1985.

The one day by which Mr. Ajayi has said the appellants were out of time becomes the one day which by section 15(2) of the Interpretation Act, 1964, must be excluded in the computation, on the footing that the appeal was filed on 10th July, 1985. The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance.”

By the same token, in the case of Yusuf v. Obasanjo (2003) 16 NWLR (Pt.847) 554 at 629-630, Uwaifo, JSC, observed:

“Section 132 (of the Electoral Act, 2002) provides that: “An election petition may be presented within thirty (30) days from the date the result of the election is declared.” It is not in dispute that the presidential election result in question was declared on 22 April, 2003. The petitioners in this case had 30 days within which to appeal against it. The 30 days will be calculated from 23 April to end on 22 May, 2003….Section 15(2)(a) of the Interpretation Act… makes similar provision…The petition was filed on 2 May, well within time.”

Similarly, in the recent case of Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt.1183) 159 at 197, Onnoghen, JSC, re-echoed this hallow principle of law. He stated:
“…The law is now settled that in calculating or computing time stipulated by statute, generally the first day of the period will be excluded from the reckoning while the last day will be included except, where the last day is a public holiday in which case the end of the following day, which is not a public holiday, will be included – see section 15(2) of the Interpretation Act.

The wisdom behind the exclusion of the day of the occurrence of an event, in computation of days, was succinctly explained by Oputa, JSC, in the case of Akeredolu v. Akinremi (supra), at pages 804-805, in these illuminating words:

“…Excluding the date on which the event happened that gave rise to the computation accords with good sound common-Sense, otherwise one will be faced with the difficulty’ of calculating a fraction of a day as a day. It is my humble view that unless expressly so provided by statute, to argue that a fraction of a day is equal to a whole day involves the ineradicable fallacy of making a part equal to a whole. Such an interpretation would be an assault on common-Sense and would do violence to the plain meaning of words. To avoid regarding part of a day as a whole day, the day on which the event happened should be excluded from the computation.

The judgment now appealed against could not have been delivered at 12 mid-night of 9th April 1985. If it were delivered any time after 9a.m (when the courts usually begin sitting) then the present Applicants are being allowed less than the 3 months granted them by S.31 (a) of the Supreme Court Act 1960.”

Given the foregoing immutable position of the law, the 21st April, 2007, on which the result of the election was declared, would not be counted in calculating the thirty (30) days for the first and second respondents to file their petition. The law, as x-rayed above, makes it clear that their time will begin to run on 22/04/2007. Their thirty (30) days will end on 21/05/20007. It was a common ground that that date , was a Sunday. Going by the sacred provision of section 15(2), (3) and (5) of the Interpretation Act, that date, being a Sunday, was a deis non juridicus – a non judicial day. The Interpretation Act, section 15(5) thereof makes Sunday a public holiday, even as section (3) of the section 15 of the Act validates any acts performed on a day following it. In law, where a word in a statute is legally defined, that defined meaning is ascribed to that word by courts in subsequent proceedings on the footing of stare decisis, see Diapianlong v. Dariye (2007) 8 NWLR (Pt.1036) 332 at 447, per, Aderemi, JSC. The point I am struggling to run home is that the petition was not filed beyond thirty, (30) days as ordained by section 141 of the Electoral Act, 2006. I, therefore, hold that the petition did not offend or desecrate that sacrosanct provision.

Let me place on record, ex abundanti cautela, that the Interpretation Act is applicable to all legislations. Little wonder, section 1 of that Act provides: “This Act shall apply to the provisions of any enactment except in so far as the contrary intention appears in this Act or the enactment in question.” That is noted in the case of Ahmed v. FGN (2009) 13 NWLR (Pt.1159) 536. Similarly, it is applicable to all proceedings, criminal and civil alike; see Shekete v. N.A.F (2007) 14 NWLR (Pt.1053) 159. Interestingly, throughout the length and breath of the 166 section Electoral Act, 2006, it never barred the application of the Interpretation Act to it. Nor does the Act exclude the Electoral Act, 2006 from its domain of application.

Altogether, the first respondent’s petition, filed on 21/05/2007, was presented within the four walls of the period circumscribed in section 141 of the Electoral Act, 2006. In the effect, the petition was not entrapped or plagued by statute-bar. It was competent. I, therefore, resolve this issue against the appellants.
The down fall of that issue six takes me back to issue one to wit: “Whether it was right for the Tribunal to have distilled and ascertained for itself, the grounds for the petition under the guise of doing substantial justice when no ground was stated therein.” For a proper resolution of this issue, the provision of section 145(1) of the Electoral Act, 2006 is germane. That section specifies/outlines the grounds upon which any petition should be predicated. In paragraph 12, contained on pages 17 – 20 of the record, the first respondent particularized its complaints in the petition against the election.

It admits of no argument that the petitioner did not set out the grounds as entrenched in section 145(1) of the Electoral Act, 2006. Nevertheless, a microscopic examination of paragraph 12(i) – (xiii) of the petition shows that the relevant grounds are encapsulated, embedded or wrapped therein. It can be gleaned from that paragraph that the petitioner’s grounds were that the election was invalid for “non-compliance with the provisions of this Act” and that the respondents therein (the appellants herein) were “not duly elected by majority of lawful votes cast at the election.”

In holding this humble, view I am emboldened by the law that pleadings are read holistically in order to discern the gist of the case of a party. They are not construed in fragments. In the case of Okochi v. Animkwo (2003) 18 NWLR (Pt.851) 1 at 24, Tobi, JSC, stated:

In dealing with pleadings, a court must read all the paragraphs together to get a flowing story of the parties and not a few paragraphs in isolation. It is the totality of the pleadings, whether it is the statement of claim or the statement of defence, that state the case of the party and it will be injustice to invoke only a few paragraphs to come to the conclusion.”

See, also, Nigerian Army v. Aminu-Kano (2010) 5 NWLR (pt.1188) 429. Just to add that petition is to an election petition what statement of claim is to a civil proceeding, see Egolum v. Obasanjo (supra). The lower tribunal was, therefore, acting in consonance with the law when it considered the entire petition to decipher the grounds.

Indeed, to do otherwise would have been akin to the lower tribunal worshipping and idolizing technicality whose heydays are already decreed over in the Nigerian legal system. Nowadays, a court is enjoined, at all times, to do substantial justice. A court must not slaughter substantial justice on the shrine of technicality. In the case of Maersk Line v Addide Invest. Ltd. (2002) 11 NWLR (pt.778) 317 at 383, Ayoola, JSC, noted:

“The judicial process malfunctions and is discredited when it is bogged down by technicalities and is manipulated to go from technicality to technicality and thrive on technicalities. That is why, at all times, the tendency towards technicality should be eschewed and the determination to do substantial justice should remain the preferred option and the hallmark of our judicial system.”

See, also, C & C Const. Co. Ltd v. Okoli (2003)18 NWLR (Pt.851) 79; Egolum v. Obasanjo (supra); Famfa Oil Ltd. v. A.-G., Fed. (2003)13 NWLR (Pt.852) 453; Akpan v. Bob (2010) 17 NWLR (Pt.1223) 421. Going by the above analyses, it is my view that those grounds, upon which the petition was grounded on, were apparent and decipherable from the petition. In the end, I resolve this issue (one) against the appellants.

The last issue was a product of the amalgamation of issue two and three in the leading judgment. The meat of that issue was whether the lower tribunal was right to have relied on rejected exhibits, exhibits (q), register of voters for the wards and exhibits P40A – some averments in some paragraphs of the depositions.

Generally, by law, a court is not at liberty to utilize a process it has already declared inadmissible or rejected as the basis of its decision. In the case of Agbaje v. Adigun (1993) 1 NWLR (Pt.269)261 at 272, Ogundare, JSC, held:

“The learned trial Chief Judge, realizing his error in rejecting the document could have called on the parties to first address him on admissibility before suo motu admitting the document in evidence in judgment. Quare if he could even reverse himself as he has done in this case. It may be that the learned trial Chief Judge had in mind a situation where evidence is admitted on facts not pleaded. The law is that in a situation such as the latter, the trial judge must expunge such evidence from the record when considering his judgment since it does not go to any issue and cannot be legal evidence upon which he could make a finding of fact. That is a different situation to the one in hand. The disputed document having been rejected in evidence cannot be made use of. The learned trial Chief Judge cannot sit on appeal on his own decision. It must be left with the Court of Appeal when the issue is raised before that court to decide whether or not the said evidence was rightly rejected in evidence. I am therefore, of the view, with profound respect to the learned trial Chief Judge, that he was wrong in admitting the document in evidence when writing his judgment.”

See, also, A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt.342) 25; U.B.N v. Ozigi (1991) 3 NWLR (Pt.333) 385.

One other instance, -apart from that mentioned in the case of Agbaji v. Adigun (supra), in which a court is allowed to reverse itself, in his judgment on a ruling made at interlocutory stage, is where a rejected document is at all events inherently inadmissible. In that situation, a court discards sticking to the ageless doctrine of functus officio, see Shanu v. Afribank (Nig) Plc. (2002) 17 NWLR (Pt.795) 185; Duro Saro v Ayorinde (2005) 8 NWLR (Pt.927) 407. There was no evidence, before the lower tribunal, that the exhibits were at all events inherently inadmissible.

Flowing from the above dissected state of the law, it is safe to conclude that what the lower tribunal did, placing reliance on those rejected exhibits in its judgment, constituted an affront to the law. By that unwarranted and untoward volte face, the lower tribunal, to my mind, constituted itself, without the blessing of the appropriate authority, into an appellate court and suo motu reversed its decision at the interlocutory stage. The law, seriously, frowns upon that later about-face posture of the lower tribunal. Worse still, that somersault, as it were occasioned a    miscarriage of justice to the appellants in that this court”.. after examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favourable to the appealing party would have been reached in the absence of the error complained of,” see Akpan v. Bob (2010) 17 NWLR (pt.1223) 421 at 479, Per Muhammad,  JSC. In sum, the lower tribunal, with all due reverence to it, erred in law, when it used those, previously, rejected exhibits as the touchstone to jump-start the petition filed by the first respondent. On this score, I resolve those combined issues in favour of the appellants.

Having regard to the reasons proffered above, and coupled with fuller reasons adduced in the leading judgment, I too allow the appeal. I abide by the orders made in the leading judgment.