(Enugu Judicial Division)
On Saturday, the 7th day of January, 2012
Suit No: CA/E/EPT/63/2011
Before Their Lordships
HELEN MORONKEJI OGUNWUMIJU....... Justice, Court of Appeal
ALI ABUBAKAR BABANDI GUMEL....... Justice, Court of Appeal
IGNATIUS IGWE AGUBE....... Justice, Court of Appeal
Between
1. MR. JOHN EBEH UZU
2. ALL NIGERIA PEOPLE PARTY Appellants
And
1. ANTHONY IKECHUKWU OGBU
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 34 OTHERS Respondents
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): On the 7th day of January, 2012, we had cause to pronounce the judgment on the Appellants' appeal and allowed same on all Grounds. We also ordered that the election and return of the 1st Respondent be cancelled and his Certificate of Return withdrawn by the 3rdRespondent to enable fresh election to be conducted in the entire Ishielu North State Constituency of Ebonyi State within 90 days.
We also promised to give our reasons for the pronouncement in due course. We shall now proceed to give our said reasons in so holdingthat the Appellants' Appeal succeeded and the consequential ordersmade on the date of the pronouncement of the judgment.
It would be recalled that by their petition dated 16th May, 2011 and filed on 17th May, 2011, the Appellants then petitioners challenged the election and return of the 1st Respondent as the duly elected member into the Ebonyi State House of Assembly, to represent the Ishielu North State Constituency. The petition was predicated on three
Grounds to wit:
1. That the 1st Respondent is not duly elected by the majority of lawful votes cast at the election.
2. That the 1st petitioner is the person that scored the majority of lawful votes cast at the election and ought to have been returned by the 3rd, 4th, 5th Respondents.
3. That the election and return of the 1st Respondent is invalid by reason of corrupt practices and/ or non-compliance with the provisions and principles of the Electoral Act, 2010 (as amended) and the manual for Election officials 2011 p. 5 of the Record.
The Appellants also sought for the grant of the reliefs set down hereunder as follows:-
"WHEREFORE your petitioners pray that:
i. It may be determined and this declared that the 1st Respondent Hon. Anthony IkechukwuOgbu was not duly elected or returned by majority of lawful votes of the Ishielu North Constituency Election held on Tuesday the 26th day of April, 2011.
ii. That it may be determined and thus declared that the said or questioned election and the return of the 1st Respondent Hon. Anthony IkeckukwuOgbu based on the results from the polling units and wards in Ogbeagu, Amazu, UmuhualiNkalagu and Iyonu of Ishielu North Constituency complained of and questioned by your petitioners be voided by acts which clearly violated and breached the principles and provisions of the Electoral Act 2010 (as amended) and INEC manual for Election Officials, 2011.
iii. That 1st Petitioner having scored majority of the lawful and valid votes cast be declared the winner of theIshielu North Constituency of the Ebonyi State House of Assembly Election held on the 26th day of April, 2011.
iv. That it may be determined that going by the lawful votes at the said election, your 1st Petitioner ought to have been returned and should be returned as the winner in theIshielu North Constituency for Ebonyi State House of Assembly held on 26th April, 2011.
v. In addition and/or alternatively, your petitioner be declared as the winner of the said election judging by the result obtained afterthe physical recount and re-examination and/or forensic/biometric testconducted before the tribunal of votes from the affected oraforementioned polling units, and wards.
vi. In further alternative to prayers (iii) and (iv) supra that the election in the Local Government Area, wards and polling units and/or centres questioned your Petitioners (sic) be voided or set aside and fresh election ordered in the wards and polling units complained of or questioned or by your petitioners.
vii. And for such order or further orders as the Honourable Tribunal may deem fit to make in the circumstances". See pp. 18- 19 of the Records.
The 1st, 2nd and 3rd to 37th Respondents filed their respective replies to the said petition and at the hearing the petitioner called 17 witnesses and tendered some documents. The 1st Respondent in rebuttal of the allegation against his election testified and called 11 other persons as witnesses. The 2nd Respondent on the other hand, called 2 witnesses while the 3rd to 37th Respondents called 2 witnesses. At the end of the hearing the trial Tribunal delivered its judgment on 12th November, 2011, wherein it dismissed the petition which is now the subject of this appeal. As had earlier been stated, following the exchange of briefs by the respective counsel for the parties, C.C Okaa Esq. the learned counsel for the Appellants formulated three issues for determination couched in the following terms: Appellants' Issues
i. whether the Tribunal was right on the approach it adopted with regard to the case of the parties, the evident led, it evaluation and conclusion reached in their holding thereby that the presumptions of regularity that inures in favour of the results in the disputed polling units were not rebutted.
ii. Whether the Tribunal was right to nullify the election in the disputed 31 polling units.
iii. Whether the case of the Appellants ought not to have succeeded to warrant the nullification of the 1st Respondent election and for the declaration of the 1st Appellant as the winner of the election.
H.O. Eya Esq. and M.V.C. Ozioko Esq. who settled the brief of the 1stand 2nd Respondents on his part, formulated a sole issue which is:
Whether upon the pleadings, evidence and the circumstances of the petition, the tribunal did properly evaluate the evidence oral and documentary and therefore arrived at a just decision.
For the 3rd to 37th Respondents, Ibeh A. Ikwechegh Esq., and Mathew UgwuochaEsq; of counsel also distilled three issues as calling for determination in this appeal as reproduced hereunder:
1. Whether in the light of pleadings and evidence adduced before it the learned trial tribunal was right in its final judgment?
2. Whether the election for IshieluNorth Constituency held on 26thApril, 2011 was conducted in substantial compliance with the Electoral Act, 2010 as amended and the Manual for Election Officials 2011?
3. Whether the Court of Appeal cannot interfere with the decision of a trial court which is not perverse or occasioned miscarriage ofjustice?
APPELLANTS' ARGUMENTS:
ISSUE NO.I
WHETHER THE TRIBUNAL WAS RIGHT ON THE APPROACH IT ADOPTED WITH REGARD TO THE CASE OF THE PARTIES, THE EVIDENCE LED, ITS EVALUATION AND CONCLUSION REACHED IN THEIR HOLDING THEREBY THAT THE PRESUMPTIONS OF REGULARITY THAT INURES IN FAVOUR OF THE RESULTS IN THE DISPUTED POLLING UNITS WERE NOT REBUTTED.
Arguing this Issue, MrOkaa the learned counsel to Appellant; by way of general proposition contended that rebuttable presumption inures in favour of the correctness and authenticity of the results declared by the 3rd Respondent as has been settled by a plethora of authorities a few of which are Nwobodo v. Onoh(1984) 1 SCNLR 1; Omoboriowo v. Ajasin (1984) 7 SCNLR 108; and Buhari v. Obasanjo (2005) 13 NWLR (pt.941); which authorities are however clear that the said presumption of correctness is rebuttable by credible and cogent evidence. He then posed the question whether cogent and credible evidence had been led to rebut the said presumption contrary to the decision of the Tribunal below at page 491 of record?
The learned counsel then argued that the case of the Petitioners as pleaded in the petition was that election in Ishielu North State Constituency was characterized by electoral due process deficit as the results upon which the 1st Respondent was returned was not a true reflection of the actual lawful votes cast or of what happened at the polling units complained of and questioned by the petitioner as they did not emerge from accredited voters in the ordinary course of the voting process and that the Appellants founded their case almost entirely on the result sheets, voters registers and ballot papers used for the election and tendered Certified True Copies of the documents and called witnesses who gave evidence that the election was characterized by irregularities and substantial non-compliance.
He recalled that the questioned election was conducted by the 3rd to 34 Respondents just like the 1st and 2nd Respondents asserted positively that the election was freely and fairly conducted in the questioned polling units. At the trial the 3rd - 346 Respondents who conducted the elections called two supervisory presiding officers who admitted under cross examination that they were not in any of the polling units, did not accredit voters, did not issue ballot papers or recorded the scores in any of the INEC Form.
Learned counsel maintained that despite the assertion of the 3rd - 37th Respondents that elections in the questioned poling units were conducted fairly and that the results were a product of due elections, none of the Presiding Officers who were in charge of the said polling units on the day of the elections and who were parties to theproceedings came forward to testify to justify, explain or support theresults. The Tribunal below, he noted, in the absence of the PresidingOfficers' evidence in the mistaken and erroneous belief as to where the initial evidential burden lies curiously ruled at page 489 records thus.
"Regard been had to what we have said above complied (coupled) with the effect that the 17 witnesses had (called) by the petitioner in respect of 55 polling units in Five (5) wards did not lead evidence on non-compliance with the purse (provision) of the Act and Manual for Electoral Act, 2011 (2010) the evidence of R14 and RW15 as to freeness and fairness and substantial compliance to the provisions of the Electoral Act and Manuals strengthen the cen (case) for the Respondents".
By the above conclusion, it was submitted that it is apparent that the Tribunal did not properly appreciate the case of the parties and the issues thrown up in the petition especially where the evidential burden lay.
Learned counsel then went on to appraise the respective cases of the parties which according to him will show that the issues thrown up in this petition is not such that the evidence of RW14 and RW15 Supervisory Presiding Officers who did not conduct the questioned election can either justify, explain or support. He relied on the cases of Agagu v. Mimiko, Ukpo v. Imoke; Igbeke v. Emordi; (2010) 27 WRN 76 and Fayemi v. Oni (2011) ALL FWLR (Pt.554) 1 50 - 51 H-C; to further submit that the settled position of the law is that it is the Respondent especially the 3rd - 37th Respondents who conducted the election and positively asserted the due conduct who had the burden to introduce evidence. Still on the burden of proof in this case, learned counsel relied on Fayemi v. Oni (2011) ALL FWLR (Pt. 554) 1 50 51 H-C which authority quoted the dictum of Abdullahi PCA in the Court of Appeal decision in Agagu v. Mimiko (supra).
Further references were made to the cases of Amgbare v. Sylva (2009) 1 WNRL (Pt 1121) 1 at 60; Ukpo v. Imoke (2009) 1 NWLR (pt.1121) 90 at 143; Hon. UbaIgbeke v. Senator Joy Emordi&Ors. and Ogboru v. Uduaghan Per DogbanMensem at 700 G-H 308; to further submit that the burden was on the respondents especially the 3rd - 34th Respondents who conducted the election and asserted the due conduct to introduce evidence credible enough to show that elections were indeed conductedin accordance with the provision of the Electoral Act, 2010 and the Manual for Electoral Official.
He maintained that the evidential burden of introducing credible evidence that the Election was fairly conducted which will lead to the presumption of correctness will only arise when the proponent in the instant petition the Respondents especially the 3rd - 34th had discharged the evidential burden which is a precondition to its invocation and that the burden was on the 3rd -34th Respondents to adduce facts upon which to anchor the presumption. In Ogboru v. Uduaghan (supra) this Court held.
The learned counsel for the Appellants drew our attention to the 3rdto 34th Respondents Reply to the petition wherein they averred that inall the polling units in the 6 wards ofIshielu North Constituency the election was free and fair and conducted in substantial compliance with the Electoral Act 2010 [as amended]. Paragraph 3 at page 189 of the records and pages 193-194 thereof were referred to in submitting that in the absence of any scintilla of evidence from the Respondents especially the 3rd to 34th Respondents (the 1st and 2nd Respondents not being the makers of the results) upon which to anchor the presumption of regularity and correctness, the Appellants produced and tendered the result sheets, voters register and ballot papers which on physical examination showed that they were flawed and were not products of a duly conducted election.
Yet according to learned counsel the 3rd -34th Respondents again failed to call the makers of the documents the presiding officers who made them to justify, explain or support the impugned documents. Placing reliance on G. Chitex Ind. Ltd v. O. B. I. Nigeria Ltd (2005) D 14 NWLR (pt.945) 392 at 411; and Aregbesola v. Oyinlola (supra); he asserted that it is quite elementary that when the authenticity of a document is challenged, the makers ought to be called to support the document otherwise no probative value would be given to it, adding that having not led evidence in support of any of their averments to challenge the evidence tendered by the Appellants that the results were not the public of a dully conducted election, the facts laid before the tribunal are unchallenged and uncontroverted.
Learned counsel contended that the Tribunal wrongfully held that despite the failure of the Respondents to discharge the evidential burden; their failure to provide facts upon which to anchor the presumption and despite the failure to call the makers of the documents to justify the manifest irregularities graphically shown in the documents tendered, the result enjoyed a presumption of correctness.
EVIDENCE LED BY THE PARTIES AND ITS EVALUATION, IMPROPER EVALUATION AND NON EVALUATION: Learned counsel for the Appellants went on to address on the evidence led by the parties pointing out that it is not disputed that the questioned election was conducted by the 3rd to 37thRespondents in respect of the polling units. He further noted that the Presiding Officers by virtue of Sections 63(1) (2,) (3), (a) and 65 of the Electoral Act, 2010 and Chapters 3 and 4 of the Manual for Election Officials, conducted the Elections, recorded the scores in all the INEC Forms. He explained that the Appellants in their petition complained that no election was conducted in the questioned polling units as no accreditation, voting or recording of results took place.
The learned counsel then posited in the first place that despite the unchallenged evidence of PW17 /1st Petitioner at page 489 of the records, the Tribunal held that the witness did not explain to the court as to how he arrived at the table/chart during the physical examination of electoral materials. On the evidence relating to theresult sheets and the ballot papers scanned by experts retained by theAppellants who analysed the scanned ballot papers and deposed to factsas to his findings that 2,624 of the finger impressions on ballot papers inspected in 28 polling units in the five 5 wards were thumb printed by 23 individuals; learned counsel argued that the tribunal findings at page 267-270 of the records to the contrary were perverse for reasons stated in paragraphs 3.27 pages 12 to 13 of the Appellants' briefs.
The Tribunal below, learned counsel noted, despite the written deposition of the expert witness who opted to give evidence and to be cross- examined, ruled that no forensic report was tendered before the tribunal and that even though the learned counsel submitted that the 1st petitioner also deposed to additional Witness Statement, the Tribunal below held that the documents were dumped in the Tribunal. Relying on INEC v. Oshiomole (2009) 4 NWLR (Pt 1132) 607. 663-664 and Awuse v. Odili (2005) 16 NWLR (pt. 952) 416; it was contended that the tribunal below duly acknowledged the analysis of the defects as stated at page 464 of the records.
Still on the evidence before the Tribunal, the learned counsel argued that the Respondents especially the 3rd - 34th Respondents in their replies asserted that elections were conducted properly devoid of violence, irregularities and diversion of Election materials but failed to call as witnesses those who were in charge of the conduct of the Election, rather they called RW14 and RW15 who had little to do with the elections. The Petitioners he maintained, gave oral evidence of the physical examination of the voters register and result sheets and ballot papers and pinpointed the inconsistent entries, discrepancies and manifest irregularities, the Presiding Officers who made them refused to give evidence despite their having been made parties in the petition.
He referred us to the pleadings of the Appellants in paragraphs 10(I), (III) (IV), (V) of the Petition on the procedure for elections which procedure was admitted by the Respondents in paragraph 4 of the 1stand 2nd Respondents' Reply and paragraph 1 of the 3rd to 34thRespondents Reply at page 189 of the Records and further to the Appellants disputed results as announced in 11 polling units of Nkalagu ward 9; polling units of Obeagu ward; 5 polling units of Umuhali ward; 3 polling units of Amaezu and 3 polling units of Iyionuward a total of 31 polling units of 5 wards.
According to him, Appellants relied almost entirely on the electoral documents viz result sheets, voters register and ballot papers used for the election and tendered Certified True Copies and also called witnesses who gave evidence of diversion of electoral materials, no accreditation, writing of results outside the designated 31 polling units voters register not marked while scores were recorded forcandidates.
He related how:
(1). PW1"- PW17 voters and polling agents of the Appellants gave eye witness testimonies that no proper election was conducted which testimonies were never shaken during cross examination as can begleaned from pages 402-428 and the Tribunal's summary at page 453-464Records.
(2). The Appellant having averred that no election took place in any of the questioned polling units was granted leave by the Tribunal to inspect the electoral material from the disputed polling units andthey inspected, scanned and obtained certified true copies of the polling units
(3). The Appellants despite having averred that there was no proper election at the 31 questioned polling units with the leave of the Tribunal inspected the electoral material used for the election to wit: the result Forms EC8A(i); the Register of voters and the ballot papers and obtained Certified True Copies of each of these documents.
(4). The 1st Appellant examined and analysed the electoral documents and meticulously and methodically pinpointed the patent defects and manifest substantial irregularities thereby chronicling the patent defects, contradictions, inconsistencies in the electoral documents obtained, examined and analysedand chronicled and x-rayed them polling unit by unit in PW17 (1st Appellant) additional written statement on oath.
(5). The Appellants also tendered the CTC'S of the electoral documents at the trial and they were all admitted as Exhibits P2-P104 without objection. See pages 420-423 Records.
(6) The Appellants compared the figures recorded as accredited voters and voters who voted in the result sheets and the figures marked/ticked in the voters register as accredited and voted as provided by Section 49 (1) and (2) of the Electoral Act, 2010 and chapter 3 bullet 3.2 step (I), (II) and (III) of the Manual for Electoral Officers 2011.
(7). In all the 31 polling units where the INEC made the electoral materials available and were examined and analysed the voters register and the results were compared, and the figures in both documents were markedly different. The written deposition of John EbehUzu appearing at pages 281-396 of the Records refers. Despite the unchallenged evidence of PW17 above, the Tribunal below at page 489 of the records held that "PW17 who is the 1st petitioner himself did not explain for the court as how he arrived at the table during the physical examination of the Electoral materials".
(9). The 1st Petitioner in his Additional written deposition at paragraphs 3, 4 and 5 explained the procedure/process which were to be followed in a dully conducted election and clearly and graphically demonstrated that the entries in the voters register and result Form neither tallied nor were the said Forms stamped or signed. Pages 281-282 of the Records refer.
(10), That in one particular pathetic case of OkpaluObeagu unit 003, two different results were generated, stamped and signed but not dated by the same Presiding Officer with all the parties scoring zero yet 240 was recorded as valid votes. Two of the result sheets bore same serial numbers with the result Form used at Eke Obeagu Code 082.
(11). Ohualiplay ground 001 Obeagu ward, had three different result sheets with two of them bearing same serial numbers.
(12) In Eke Obeagu playground Code 002, three different result sheets
were generated, stamped but not signed by the Presiding Officer, same as in Ogbeje playground 004, where 3 different results were generated, stamped but none was signed nor dated by the Presiding Officer all bore the same serial number with Ohuali playground unit result code 001, same in EgedegeObeagu playground unit result code 007 which had 3 different result sheets with same serial numbers, none of which was stamped, dated or signed.
(13) Forms EC8A Exhibit P56-P59 for Iyionu Community School I, Code 002 was mutilated while that of Iyionu Community School III Code 003 exhibit P1- P5 neither bore any stamp or date nor was it signed. From the foregoing, he submitted that the tribunal had a duty to assess and evaluate PW16's evidence for whatever it is worth as the law is settled that it is the totality of the evidence that has to be evaluated. Moreover, since the ballot papers tendered in evidence were admitted without objection, the tribunal was bound to assess and evaluate the ballot papers as they were in evidence. See INEC v. Oshiomole (2009) 4 NWLR (Pt 1132) 607 at 663-664, Awuse v. Odili(2005) 16 NWLR (pt.952) 416.
The learned counsel on the whole asserted that the Tribunal Judges having duly acknowledged the analysis on the deposition and documents analysed as evidence in a volte face refused to assess or evaluate the oral and documentary evidence when they held as they did at page 488-489 of the Records. Accordingly, it was submitted that the refusal of the tribunal to assess and evaluate the oral evidence of PW17, the result sheets, voters register and ballot papers tendered before it was wrong and perverse and had occasioned a miscarriage of justice for the following reasons.
(i) The Tribunal having agreed that there were a lot of irregularities and defects found in the entries in the voter registers, result Form and ballot papers analyzed in the deposition of PW17 was wrong to have somersaulted to hold that the PW17 did, not "Explain for the court as to how he arrived at the table made during the physical examination of the electoral materials" or that the documents were dumped.
(ii) It is trite law that by the front loading system and by virtue of Paragraph 41(1) and (3) of the 1st Schedule to the Electoral Act, 2010; facts are proved by written deposition and no oral examination of a witness during his evidence in chief is allowed and that PW16 and PW17 having adopted their depositions can only be cross examined by the Respondents.
[iii) under the front loading requirement, a witness' deposition once adopted becomes effective as his evidence in chief of such a witness. Agagu v. Mimiko (2010) 32 WRN 10, Aregbesola v. Oyinlola (2010) 1 WRN 33 at 149, refer.
(iv) The result sheets, voters register in and ballot papers were tendered in evidence and admitted as exhibits and it is trite law that:
"Documentary evidence tendered in the course of proceedings before the trial court are not tendered for the fun-of it. They are tendered by the party with the expectation that the trial court would consider same and come up with meaningful determination for the purpose they were tendered,... interest of justice therefore demands that they beconsidered and looked into, evaluated by the trial court which is also expected to draw conclusion on them" Per Sanusi JCA; Okafor v. Anyakora (2006) ALL FWLR (Pt. 302) 121 at 141, F - G. and INEC v. Oshiomore (supra), Aregbesora v. Oyinlola (supra).
(v)The result sheets, voters register and ballot papers all of which were documents used at the questioned election are not only the most reliable, if not the best evidence in resolving election matters. Aregbesolo v. Oyinlola (2004) 14 NWLR (Pt.1162) 429, per Omage JCA refers.
"I have observed that in election cases, oral evidence and/or the demeanour of witnesses are not important and decisive in setting the issues as documentary evidence tendered. Documents used in an election and all documents containing facts relevant to the issues in a petition are the best form of evidence of resolving election matter. Ogbe v. SuleAsade (2010) ALL FWLR (pt. 510) 612 at 632, Per Eneh JSC para F, "The law I must state had accorded a measure of primacy to documentary evidence as against oral evidence".
(vi) In Awuse v. Odili (2005) 16 NWLR (Pt.952) 416 at 510 "... Under the provision of Section 91(1) of the Evidence Act, the Tribunal had the duty to evaluate the probative value of every documentary evidence tendered before it"
(vii) The Appellants also confronted the witnesses of the Respondents who gave evidence that the election was free and fair and that there was accreditation and recording of results. The witnesses admitted that their names were not ticked to indicate that they were accredited or that they voted.
(viii) From the printed records, the testimony of the 1st Appellant PW17 as contained in the additional written deposition was not challenged on cross examination and the Tribunal below was not only entitled but were in fact bound to act on the unchallenged evidence and nullify the elections in the polling units. S. P. D.C. Nig. Ltd v. Edamke&Ors (2009) ALL FWLR (Pt. 489) 400 at 435 and BCC Nigeria v. Anyim (2009) ALL FWLR (Pt. 488) 378 at 395 B-D; referred.
(ix) The law is that it is the totality of the evidence that has to be evaluated and assessed together. A judge cannot pick and chose the evidence to See Aregbesola v. Oyinlola (supra) at, 106, Wali v. Bafarawa v. (2004) 16 NWLR (Pt.898) 1 at 47 per Obadina JCA he assessed and evaluated. thus:
"The law is that the totality evidence has to be evaluated and assessed together and that the judge cannot pick the evidence to be assessed".
For the foregoing reasons, he complained that the Tribunal neither evaluated the oral evidence of PW16 nor that of PW17 nor did the Trial Tribunal also assess or evaluate the result sheets, voters registers and ballot papers tendered before it and admitted as evidence; adding that from all the parameters, the Appellants led sufficient oral and documentary evidence that assailed the results from all the disputed
31 polling units on which parties joined issues that should have led to the success of the Petition, but quite curiously the Trial Tribunal members in the judgment appearing at page 488 of the Records held as they did.
From the holding above at the said page 488 of the Record of the proceedings, learned counsel contended that a holistic reading thereof clearly showed that the trial Tribunal misapprehended the issues before them and the evidence led therein. He maintained that all the oral and documentary evidence taken together support the case of the petitioners that no election known to law took place in the questioned polling units as section 49(2) of the Electoral Act, 2010 and chapters 3 and 4 of the Manual mandatorily provide the procedures to be carried out in a properly conducted election which he reproduced at page 17 of the Appellants brief thus:
"49(2) the Presiding Officer shall name on being satisfied that the names of the person is on the register of voters issue him a ballot paper and indicate on the Register that the person has voted"
"Chapter 3 bullet 3.2 of the Manuals provides as follows:
Step 2: Examine the voters' card to ascertain that the photo on the voters card is that of the voter and that the polling station details are correct for that polling station.
Step 3: Check the register of voters to confirm that the voters name, photo and voters identification number (VIN) is contained on the voters card is in the register of voters.
step 4: Tick to the left of the name of the voter, if the person's name is on the register.
Chapter 4 VOTING
PRECEDURE
Step 1: Invite the voters to queue to approach the poll clerk in an orderly manner.
Step 2: on presentation of the voter card, the poll clerk shall
i. check on the appropriate cuticle of the left thumb nail
ii. On being satisfied that persons before him/her has been dullyaccredited tick the register of voters on the right side of the voters name indicating that he/she had voted.
iii. Apply indelible ink on the cuticle of the voters right thumb nail."
He then urged us to be persuaded by the decision in Ajadi v. Ajibola(2004) 16 NWLR (pt.898) 91 at 182-183 and also Fayemi v. Oni (supra) at 58; in that, in all the 31 polling units complained of, the constituents of election namely Accreditation, voting and stamping and signing of the ballot papers using a single serial numbered resultForms to record the results was lacking.
On the issue of non compliance, it was further submitted that it is a question of fact and it is the degree of the non-compliance and documentary evidence tendered that will show what constitutes noncompliance.
The case of Na-Buture v. Mahuta (1992) 9 NWLR (pt. 263) 85 at 104 was cited in support of the legal proposition that the noncompliance in accreditation of voters and those who voted and the manifest anomalies of Form EC8A(i), voters register and ballot papers showed grave irregularities in the conduct of the election which the Tribunal failed to evaluate.
On the effect of the unchallenged documentary evidence and presumption of regularity of results learned counsel relied on the cases of Dakolov. Dakolo (2011) 16 NWLR (Pt.1272) 22 at 48 para. E, and Ukpo v. Ngaji(2010) NWLR (Pt. 1174) 175 at 207; to submit that although an election result is presumed correct and authentic until contrary evidence is adduced to show its irregularity, the presumption of regularity of an election results cannot stand compelling documentary evidence falsifying its correctness and authenticity. Furthermore, it is trite that a document is presumed