Waiting me I know, we get plenty online lawyers and judge they will explain.

Kukutente23:

And where in the EA does it invalidate unmarked ballots?
Mind you, unmarked can mean many things not necessarily the signature of the presiding officer. It can be the inec seal, the watermarks or even the serial number. EA never expressly stated that it must be signed. Only the result forms must be signed. The EA never gave such requirements for ballot paper

Subsection 1 clearly states that unmarked ballots are not to be counted except sub 2 is followed.a document that is not signed,stamped,dated or with inec seal cannot be said to be marked or valid especially if others are. A community reading of the electoral act and the evidence act has stated clearly what a marked document is.
Both result sheets and ballot are from booklets and are sensitive materials.if an unmarked result is voided why should ballot papers not be?
It is general law that any unsigned or unstamped document is worthless. See the decision of the apex court in lawan vs machina supra.the onus is on nnpp to rebut apc.apc challenged the ballot papers and tendered the ballot.respondents alleged that it is not true without tendering evidence.therefore apc allegations are deemed true

garfield1:


Subsection 1 clearly states that unmarked ballots are not to be counted except sub 2 is followed.a document that is not signed,stamped,dated or with inec seal cannot be said to be marked or valid especially if others are. A community reading of the electoral act and the evidence act has stated clearly what a marked document is.
Both result sheets and ballot are from booklets and are sensitive materials.if an unmarked result is voided why should ballot papers not be?
It is general law that any unsigned or unstamped document is worthless. See the decision of the apex court in lawan vs machina supra.the onus is on nnpp to rebut apc.apc challenged the ballot papers and tendered the ballot.respondents alleged that it is not true without tendering evidence.therefore apc allegations are deemed true

Stop capping nonsense and forming learned. The documents referred to in s70-71 are result sheets abs not ballot papers. Do you dispute that?
The EA does not expressly require ballot papers to be signed and stamped but "marked" and you're not in a position to say the only means of marking is by signature of presiding officers when section 42 requires the ballot papers to be serialised instead.
Subsection 1 of 63 says ballot papers not marked should be rejected but Subsection 2 says if the returning officer is satisfied of its genuineness, he can accept it. The general law you claim can't be applied to this specific case because this case already gives an exception. What you're implying is that your supposed general law supersedes EA while the so-called general law is not in the constitution. How does that make sense.
S64 explicitly states that a ballot rejected must be put in writing by the Presiding Officer stating the reason for rejection. Such requirement is not laid on the returning officer in s63(2) which implies that any ballot paper seen in the box should be assumed accepted by the returning officer. If the framers of the law needed the returning officer to testify to the validity of the unmarked papers, they would have laid same burden on him as they did for rejected ones in s64.
The APC should have called the returning officer to confirm he did not accept those ballot papers. The burden is on them to show EA was violated which they did not by just showing unsigned ballot papers. Secondly, existence of such ballots even if found wrong should lead to cancellation of polling unit results. That's what EA says not sifting through ballot papers. Even the Osun tribunal cancelled whole PU results based on allegations of ballot box stuffing.
This idea is novel and I'm sure Appeal will overturn it because it's not standing on solid ground. The judgement simply said it can't make inference based on assumptions while the EA already did that for them in s63(2).
The burden of proof was not discharged by APC as far as s63(2) is concerned.

Kukutente23:

Stop capping nonsense and forming learned. The documents referred to in s70-71 are result sheets abs not ballot papers. Do you dispute that?
The EA does not expressly require ballot papers to be signed and stamped but "marked" and you're not in a position to say the only means of marking is by signature of presiding officers when section 42 requires the ballot papers to be serialised instead.
Subsection 1 of 63 says ballot papers not marked should be rejected but Subsection 2 says if the returning officer is satisfied of its genuineness, he can accept it. The general law you claim can't be applied to this specific case because this case already gives an exception. What you're implying is that your supposed general law supersedes EA while the so-called general law is not in the constitution. How does that make sense.
S64 explicitly states that a ballot rejected must be put in writing by the Presiding Officer stating the reason for rejection. Such requirement is not laid on the returning officer in s63(2) which implies that any ballot paper seen in the box should be assumed accepted by the returning officer. If the framers of the law needed the returning officer to testify to the validity of the unmarked papers, they would have laid same burden on him as they did for rejected ones in s64.
The APC should have called the returning officer to confirm he did not accept those ballot papers. The burden is on them to show EA was violated which they did not by just showing unsigned ballot papers. Secondly, existence of such ballots even if found wrong should lead to cancellation of polling unit results. That's what EA says not sifting through ballot papers. Even the Osun tribunal cancelled whole PU results based on allegations of ballot box stuffing.
This idea is novel and I'm sure Appeal will overturn it because it's not standing on solid ground. The judgement simply said it can't make inference based on assumptions while the EA already did that for them in s63(2).
The burden of proof was not discharged by APC as far as s63(2) is concerned.

The presiding officers are inec staffs who should have been called by inec to substantiate sub 2.
Similar thing happened in imo where apc tendered polling unit results sheets showing that apc won 338 units while inec who had the burden to disprove this by tendering result sheets or proving that elections didn't hold there by providing the presiding officers to prove this.
The cancelled units mostly voted for nnpp for so it is the same thing.best case scenario is for the appellate to declare a partial rerun but uphold the voiding of 165000 votes

garfield1:



The presiding officers are inec staffs who should have been called by inec to substantiate sub 2.
Similar thing happened in imo where apc tendered polling unit results sheets showing that apc won 338 units while inec who had the burden to disprove this by tendering result sheets or proving that elections didn't hold there by providing the presiding officers to prove this.
The cancelled units mostly voted for nnpp for so it is the same thing.best case scenario is for the appellate to declare a partial rerun but uphold the voiding of 165000 votes

No
It is exactly that imo case that makes it not necessary for INEC to call the returning officers. SC said in that judgement that unless otherwise proven, it is assumed that the elections held and were in compliance with EA. It is what led to the 388 PU results been accepted by SC after the CTC produced by APC were actually unsigned and only APC and the police had it while INEC said there were no elections in those PUs due to violence.
If same logic is applied to this case of ballot papers, it is assumed that EA was complied with except proven. What EA says is returning officers can accept unmarked ballot papers. APC has to prove the returning officers did not accept them. They did not do that. You already said it yourself that INEC had to prove elections did not hold in the Imo case even though they made the claim. Why? Because SC said it is assumed that elections held and complied with EA. That logic actually upholds the unsigned ballot papers until proven that returning officers did not rely on s63(2) to accept them.
The 165000 ballot papers will be returned I can assure you. Time will show I'm right on this. Worst case is total cancellation of PUs they emanated from if BVAS shows overvoting.
Secondly, I hope you're aware during cross-examination, a good number of polling agents called by APC denied being polling agents. The tribunal overlooked that fact. Let's see what CoA will say about that.

Kukutente23:

No
It is exactly that imo case that makes it not necessary for INEC to call the returning officers. SC said in that judgement that unless otherwise proven, it is assumed that the elections held and were in compliance with EA. It is what led to the 388 PU results been accepted by SC after the CTC produced by APC were actually unsigned and only APC and the police had it while INEC said there were no elections in those PUs due to violence.
If same logic is applied to this case of ballot papers, it is assumed that EA was complied with except proven. What EA says is returning officers can accept unmarked ballot papers. APC has to prove the returning officers did not accept them. They did not do that. You already said it yourself that INEC had to prove elections did not hold in the Imo case even though they made the claim. Why? Because SC said it is assumed that elections held and complied with EA. That logic actually upholds the unsigned ballot papers until proven that returning officers did not rely on s63(2) to accept them.
The 165000 ballot papers will be returned I can assure you. Time will show I'm right on this. Worst case is total cancellation of PUs they emanated from if BVAS shows overvoting.
Secondly, I hope you're aware during cross-examination, a good number of polling agents called by APC denied being polling agents. The tribunal overlooked that fact. Let's see what CoA will say about that.

I can say unequivocally that if the higher Courts adjudicate on this issue stricto sensu, Abba Gida Gida will be returned as Governor.

I align with the bolded with over 7 other positions in that judgement which should provoke a dismissal of the tribunal judgement. I will draw up same later today.


garfield1

fergie001:

I can say unequivocally that if the higher Courts adjudicate on this issue stricto sensu, Abba Gida Gida will be returned as Governor.

I align with the bolded with over 7 other positions in that judgement which should provoke a dismissal of the tribunal judgement. I will draw up same later today.


garfield1

The court decision was mainly due to documentary evidence not oral.the question is who has the onus of proving 63 sub 2?

Tribunal nullifies ogoja assembly

garfield1:
The court decision was mainly due to documentary evidence not oral.the question is who has the onus of proving 63 sub 2?

Who is seeking declaratory reliefs?
Documentary evidence does not exclude oral evidence. It is tantamount to dumping documents on the Court.

I will speak on all this later on.

Tribunal nullifies ogoja assembly

Re-run.

fergie001:

Who is seeking declaratory reliefs?
Documentary evidence does not exclude oral evidence. It is tantamount to dumping documents on the Court.

I will speak on all this later on.


Re-run.

Only the court can decide whether documents were dumped on it or not.in any case,this ground is enough for ganduje to personally have his way at the supreme..
Rerun in how many units

garfield1:
Only the court can decide whether documents were dumped on it or not.in any case,this ground is enough for ganduje to personally have his way at the supreme..

That is what the higher Courts will do.

Rerun in how many units

(8 PUs for Ogoja)

fergie001:

That is what the higher Courts will do.

(8 PUs for Ogoja)

You don't get it.a higher court cannot say whether documents were dumped on a trial court or not.it is assumed that they painstakingly went through all evidences.
The case of the unmarked or invalid ballots is good for our litigation system,it opens up cases and another window for nullifying elections just like uzodinma did in imo.it makes the burden of proof and standard easier for petitioners who hitherto had an impossible job.
The pertinent ques is who should have called the presiding officers to state why unmarked ballots were counted? The petitioners or respondents?

fergie001:

I can say unequivocally that if the higher Courts adjudicate on this issue stricto sensu, Abba Gida Gida will be returned as Governor.

I align with the bolded with over 7 other positions in that judgement which should provoke a dismissal of the tribunal judgement. I will draw up same later today.


garfield1

Good morning
You've not shared your position
Besides, I want you to speak to two issues generated by this judgement.
First is whether EA implied signature, stamp and date in referring to "marks" on the ballot papers. This is in the light of s42 which requires the ballot papers to be serialised and no requirement is made for signature and stamp on ballot papers, while S71 explicitly refers to result forms being signed, stamped and dated. I think you'll agree ballot paper is not a result form
2. Whose responsibility is it to prove or disprove the validity of the unmarked ballot papers in light of s63(2). The tribunal said it will not want to speculate on the non-signing but I think that's exactly what it did by voiding them. Since the EA never required ballot papers to be signed, the tribunal already speculated by giving judicial meaning to "unmarked" to include signature and stamp. Also, the tribunal speculated by assuming the returning officers never accepted those ballots.
But that's my honest opinion.
I'll like to hear from you

garfield1:


You don't get it.a higher court cannot say whether documents were dumped on a trial court or not.it is assumed that they painstakingly went through all evidences.
The case of the unmarked or invalid ballots is good for our litigation system,it opens up cases and another window for nullifying elections just like uzodinma did in imo.it makes the burden of proof and standard easier for petitioners who hitherto had an impossible job.
The pertinent ques is who should have called the presiding officers to state why unmarked ballots were counted? The petitioners or respondents?

Uzodinma's case was a fraud. A magnificent one at that.
Imagine SC accepting a result INEC said it had nothing to do with simply because the police could produce a CTC. What was more appalling was the SC pronouncing that the constitution intended for the police to be the neutral, unbiased custodian of elections when INEC is actually the one recognised with such role in our laws.
That Imo case stands condemned. The judges kept dancing round and round till they arrived at their preconceived conclusion. It was a disgrace and we should hope to not witness such a level of pollution at the highest temple of justice in our land

Kukutente23:

Just been in transit for days now.

It will be a broad one tomorrow, God willing.

Kukutente23:

Uzodinma's case was a fraud. A magnificent one at that.
Imagine SC accepting a result INEC said it had nothing to do with simply because the police could produce a CTC. What was more appalling was the SC pronouncing that the constitution intended for the police to be the neutral, unbiased custodian of elections when INEC is actually the one recognised with such role in our laws.
That Imo case stands condemned. The judges kept dancing round and round till they arrived at their preconceived conclusion. It was a disgrace and we should hope to not witness such a level of pollution at the highest temple of justice in our land

It is even different from this instant case.

Uzodinma presented duplicate copies of Form EC8A, the Police did as well and we're ready to testify.

Uzodinma also called 54 witnesses. In Hope's case, it is unlawful exclusion but this case in alleged invalid ballot papers and substantiy non-compliance with the Manual & Guidelines of INEC.

With respect to Section 71, there is no where in the Electoral Act where you need to stamp, sign, date, and write the name of the PO on ballot papers.

There is no where in the Electoral Act.
.the burden of proof is on the petitioner who is seeking declaratory reliefs. The lawyers didn't do their jobs very well but they can escape on some minor technicalities. The tribunal Judges were working towards a determined end.

@kukutente23:

Again, there were no witnesses from the Petitioners ... You cannot wholly depend on the CTCs. Check all the tribunal judgements so far, they have been throwing out cases because of credible witnesses.

APC didn't present one in Kano. They simply dumped the documents on the tribunal without calling those with first hand knowledge.

This case should ordinarily be thrown out!

garfield1!


The inconclusive part will likely be looked into again/

fergie001:
@kukutente23:

Again, there were no witnesses from the Petitioners ... You cannot wholly depend on the CTCs. Check all the tribunal judgements so far, they have been throwing out cases because of credible witnesses.

APC didn't present one in Kano. They simply dumped the documents on the tribunal without calling those with first hand knowledge.

This case should ordinarily be thrown out!

garfield1!


The inconclusive part will likely be looked into again/

Noted.
It seems our judges usually just listen to the part they want to and ignore all others
How can someone call 30 witnesses out of about 300PUs, the witnesses only speak Hausa and some of them could not identify voting materials while some confessed they are not polling agents, then you abandon all that and claim you decide to work only with the documents placed before you.
Meanwhile the PEPT in its own case claimed the petitioners claimed to link the 18,000 blurred results with any PU

Kukutente23:

Submissions
In the last paragraph of Page 212, the learned Judge quoted Section 71 here reproduced:

"Every result form completed at the ward, local government, state and national levels in accordance with the provisions of this Act or any guidelines issued by the Commission shall be stamped, signed and countersigned by the relevant officers and polling agents at those levels and copies given to the police officers and the polling agents, where available."

Section 63(1): Subject to subsection (2), a ballot paper which does not bear official mark prescribed by the Commission shall not be counted.

(2)If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.

There is clearly a difference between a ballot paper and a result form.

*In Pages 212-214 of the Judgement and especially in the first paragraph of Page 215, it is clear the learned Judge assumed that a result form is same as a ballot paper.

*The tribunal leaned on Section 63(1) to describe an official mark to mean signing, dating, stamping and writing the name of the PO on the ballot paper. (see Page 215, line 3 of the Judgement).

This is not correct, an official mark was explained in Paragraph 36(i) of the INEC Manual Guidelines & Regulations to mean;

"Only ballot papers with the official watermark and stamp prescribed by the Commission shall be counted by the PO"

36(ii) Whenever a PO notices any ballot paper without the official watermark and stamp, he/she should immediately escalate and act on further instructions received by him/her."

A collective understanding of Paragraphs 36(i), (ii) of the Manual Guidelines of INEC and Sections 63(1),(2), 64(1) and 64(3) of the EA gives us a direction of what is lawful and unlawful.

See Section 64(1) of the Electoral Act: The presiding officer shall endorse the word “rejected” on the ballot paper rejected under section 52 (1) of this Act and for any other reason, and the ballot papers shall not be counted except otherwise allowed by the returning officer who may overrule the presiding officer.

Section 64(3) of the Electoral Act:
The presiding officer shall prepare a statement on rejected ballot papers, stating the number rejected, the reason for rejection and their serial number, and he or she shall on request, allow a candidate or a polling agent to copy the statement.

I am not unmindful of Paragraph 19(f) of the Manual Guidelines where the PO will sign, stamp and write the date of the election behind the ballot papers, but should his name be there? The only trite answer is NO.

There is no where in the Electoral Act or INEC Guidelines where the PO will have to write his name on the Ballot Papers. I repeat there is no where this can be found.

Just like S63(i) of the EA has a proviso in S63(2), Paragraphs 36(i) does in 36(ii). It is generally acceptable that the POs have a role to play in all of this.

What is also clear is that it is within the powers of the Returning Officer, a person who works for the 1st Respondent to over-rule a rejected ballot paper. See Section 64(3) above. In this case, he didn't need to over-rule a rejected ballot.

The prerogative of the election been correct as declared is not in contention by all parties.

Whose responsibility is it to now prove that indeed there was substantial non-compliance with the INEC's Manual & Guidelines, if any? The man who asserts or the man whose election is been challenged?

The learned Judge in Page 215 had pushed the burden of proof on the respondents rather than the man who sought declaratory reliefs.

Supreme Court Judgements have a unified position on this:
"The law is also trite that in a claim for declaration, the onus is on the plaintiff/petitioner to establish his case on the strength of his evidence and not on the weakness of the case of the Defendant. The heavy weather made by the appellants in hammering on the respondents failure to call evidence in proof of their pleadings is a confirmation that the appellants are hiding behind one finger by abdicating their duty in proving the declaratory reliefs sought for. The proof is not determinant on whether or not the respondents called witnesses, but which squarely rests on the appellants by law." (Gunduri v. Nyako SC) Ogunbiyj JSC rtd

The Petitioner must call witnesses who had a first hand knowledge of this infraction and link the documents or evidence to the specific case in the petition, since if he doesn't go the extra mile, the tribunal or Court may not come to a conclusion. (APGA v. Al-Makura SC) Onnoghen JSC as he then was.

It is the petitioner who should leave no margin for error. It is and was the responsibility of the Petitioner to prove his case ab initio

The tribunal lambasted the Respondents for not calling the Returning Officer to testify if he indeed allowed those ballot papers. "The Respondents need not answer questions when the substantial proof of non-compliance have not been well-marshalled" (Obi v INEC 2023).

It is the Petitioner who wants to win his case, he indeed approached the Court to be so declared and should prove same. Surely, the presumption of regularity enjoyed by INEC's results are not rebuttable by presumptuous postulations or rhetorical questions but only by cogent, credible and acceptable evidence.

The Petitioner called up 30 Polling Unit agents some of whom 1st Respondent insisted were not names submitted to her as PU agents. None of them in their written depositions linked any evidence of ballot papers to their testimonies. PW31 is hearsay evidence been the State Collation Agent who was not at the PU and not credible.

The expert witness (PW32) before the open Court testified he relied only on the CTCs from INEC. This is not enough to prove same in my opinion as there were expected PU agents or eyewitnesses who saw first hand or those who even queried the counting of these "alleged" invalid ballot papers at the PUs or even POs who should ordinarily testify to this effect.

In Section 64(3) supra, POs were expected to write statements on rejected ballots and reasons adduced, which shall be copied by PU agents on request. There was no copy of the PO statements on rejected ballot papers or even those by the PU agents and reasons thereto tendered by any of the PU agents of the Petitioner, it is safe to say they are/were in agreement with the counted ballots at the PU level.

This was raised even by the Respondents and even confirmed by the trial Judge in Page 209 of the Judgement.

An expert witness should ordinarily give scientific or technical analysis to direct the Court to give a purposeful direction. However, PW32 tendered 'evidence' handed over to him by the Petitioner that had absolutely no backing of people who saw it first hand neither was there any scientific postulation to back what would have been deposed by the Party Agents.

Were these ballot papers tested in open Court? Our Jurisprudence is adversarial in nature, so dumping of documents on the tribunal to go on a voyage of discovery is unacceptable. The trubunal became mathematicians in the inner recesses of their Chamber, they simply jumped into the arena.

Our Courts have often prohibited inquisition or forensic examination of documents untested in Open Court.

"Such evidence must come from a witness who has the first hand knowledge of that which he testifies to. He must in other words be a witness who saw or heard or took part in the transaction upon which he was giving evidence. Where a witness gives an account of an information which is not within his personal knowledge, he would not be accredited as a competent witness." (Obi v INEC PEPT)

The tribunal hammered severally on Section 137 and Paragraph 46 of the INEC Manual guidelines and regulations and placed/elevated documentary evidence. In the same INEC Guidelines, Paragraph 41(1) of the 1st Schedule of the Electoral Act that insists on written deposition and oral evidence of witnesses. It begs to say there is a conflict.

In my humble view, this section cannot be wholly relied on.

Our Courts have always severally tied open Court cross-examination or evidence or linking documents to specific cases with respect to Section 36 of the 1999 CFRN.

"Therefore, it is an infraction of fair hearing principle for the court to do in its chambers, what a witness to the party in a case had not himself done in open court to advance or protect the interest of the party." (Ucha v. Elechi SC)

The doctrine of fair hearing derives its roots from Section 36 of the 1999 CFRN. The Constitution is the fons et erigo, the Supreme document of the land and when it is in conflict with any other document, it stands tall like Mount Gibraltar above every and any.

The 1st Respondent's objection on this was jettisoned by the tribunal.

Lastly, to buttress a point with regards to the Returning Officer... the evidence before the tribunal did not show any disputations from the PU agents of the Petitioner to oppose the counting of ballot papers without official marks, etc.

The PU is the building-bloc, the fundamental stage of any election in Nigeria.

In this petition, there is no where a PU agent testified about his PU with respect to unsigned or undated ballot papers or even tendered the report in open Court or through his witness statement, about his rejection on counting of these 'invalid' ballot papers (either orally or in writing).

Their acceptance of this allowed the PO and subsequently the returning Officer as there were no open rejection by agents of the Petitioner, at any stage of counting.

See Section 64(1),(3) of the Electoral Act supra

What the Petitioner simply did was harvest unmarked ballot papers LGA by LGA that had the votes of the 2nd Respondent and dumped before the Court. This is a fundamental error of huge proportion.

This should have been listed PU by PU serialised (see Buhari v Obasanjo, Udom v Umana)

The questions that comes to my mind are:-
A. How did the judges arrive at the serialization of the ballot papers, that it was/wasn't from a book sheet since this wasn't provided by the Petitioners.

B. How did they partition it, PU by PU since the Petitioner didn't do that?

C. Was EC40G tendered alongside? Did the tribunal come to the conclusion if some of those ballot papers existed in Polling Units that were already cancelled for violence or over-voting or BVAS by-pass?

D. Was there any Ward Collation Agent called up either in writing or oral evidence to testify?

E. How many of these ballot papers were unstamped, how many were undated, how many had no watermarks? None was provided.

How did they arrive at these decisions?

It is not the Court’s lot to be saddled with nor can it suo motu assume the partisan responsibility of tying each bundle of such documentary evidence to the appellant’s case to prove the malpractice alleged. It would amount to the Court doing a party’s case which will occasion injustice to the other party. The Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party." (Omisore v Aregbesola SC) Ogunbiyi JSC rtd

The Court is an adjudicator not an investigator.

^{It is clear that the 2nd & 3rd respondents raised this objection which was over-ruled. (See 2nd paragraph in page 209).}

"...the law is clearly settled that specifying the particular PU or specific places where irregularities are alleged to have occurred are material particulars in an election petition which allege irregularities and malpractices but fail to specify the Polling Units or specific places where the irregularities or malpractices occurred are bereft of material particulars and such averments are incompetent and liable to be struck out. (Obi v INEC 2023), (Belgore v. Ahmed SC), (Ikpeazu v Otti SC)

The tribunal made another error that should raise eyebrows.

In Page 222, was Gawuna a Party to the suit? Absolutely not.


I will pause for now...... rolams, garfield1 engineerboat bluntcrazeman

fergie001:

Submissions
In the last paragraph of Page 212, the learned Judge quoted Section 71 here reproduced:

"Every result form completed at the ward, local government, state and national levels in accordance with the provisions of this Act or any guidelines issued by the Commission shall be stamped, signed and countersigned by the relevant officers and polling agents at those levels and copies given to the police officers and the polling agents, where available."

Section 63(1): Subject to subsection (2), a ballot paper which does not bear official mark prescribed by the Commission shall not be counted.

(2)If the returning officer is satisfied that a ballot paper which does not bear the official mark was from a book of ballot papers which was furnished to the presiding officer of the polling unit in which the vote was cast for use at the election in question, he or she shall, notwithstanding the absence of the official mark, count that ballot paper.

There is clearly a difference between a ballot paper and a result form.

*In Pages 212-214 of the Judgement and especially in the first paragraph of Page 215, it is clear the learned Judge assumed that a result form is same as a ballot paper.

*The tribunal leaned on Section 63(1) to describe an official mark to mean signing, dating, stamping and writing the name of the PO on the ballot paper. (see Page 215, line 3 of the Judgement).

This is not correct, an official mark was explained in Paragraph 36(i) of the INEC Manual Guidelines & Regulations to mean;

"Only ballot papers with the official watermark and stamp prescribed by the Commission shall be counted by the PO"

36(ii) Whenever a PO notices any ballot paper without the official watermark and stamp, he/she should immediately escalate and act on further instructions received by him/her."

A collective understanding of Paragraphs 36(i), (ii) of the Manual Guidelines of INEC and Sections 63(1),(2), 64(1) and 64(3) of the EA gives us a direction of what is lawful and unlawful.

See Section 64(1) of the Electoral Act: The presiding officer shall endorse the word “rejected” on the ballot paper rejected under section 52 (1) of this Act and for any other reason, and the ballot papers shall not be counted except otherwise allowed by the returning officer who may overrule the presiding officer.

Section 64(3) of the Electoral Act:
The presiding officer shall prepare a statement on rejected ballot papers, stating the number rejected, the reason for rejection and their serial number, and he or she shall on request, allow a candidate or a polling agent to copy the statement.

I am not unmindful of Paragraph 19(f) of the Manual Guidelines where the PO will sign, stamp and write the date of the election behind the ballot papers, but should his name be there? The only trite answer is NO.

There is no where in the Electoral Act or INEC Guidelines where the PO will have to write his name on the Ballot Papers. I repeat there is no where this can be found.

Just like S63(i) of the EA has a proviso in S63(2), Paragraphs 36(i) does in 36(ii). It is generally acceptable that the POs have a role to play in all of this.

What is also clear is that it is within the powers of the Returning Officer, a person who works for the 1st Respondent to over-rule a rejected ballot paper. See Section 64(3) above. In this case, he didn't need to over-rule a rejected ballot.

The prerogative of the election been correct as declared is not in contention by all parties.

Whose responsibility is it to now prove that indeed there was substantial non-compliance with the INEC's Manual & Guidelines, if any? The man who asserts or the man whose election is been challenged?

The learned Judge in Page 215 had pushed the burden of proof on the respondents rather than the man who sought declaratory reliefs.

Supreme Court Judgements have a unified position on this:
"The law is also trite that in a claim for declaration, the onus is on the plaintiff/petitioner to establish his case on the strength of his evidence and not on the weakness of the case of the Defendant. The heavy weather made by the appellants in hammering on the respondents failure to call evidence in proof of their pleadings is a confirmation that the appellants are hiding behind one finger by abdicating their duty in proving the declaratory reliefs sought for. The proof is not determinant on whether or not the respondents called witnesses, but which squarely rests on the appellants by law." (Gunduri v. Nyako SC) Ogunbiyj JSC rtd

The Petitioner must call witnesses who had a first hand knowledge of this infraction and link the documents or evidence to the specific case in the petition, since if he doesn't go the extra mile, the tribunal or Court may not come to a conclusion. (APGA v. Al-Makura SC) Onnoghen JSC as he then was.

It is the petitioner who should leave no margin for error. It is and was the responsibility of the Petitioner to prove his case ab initio

The tribunal lambasted the Respondents for not calling the Returning Officer to testify if he indeed allowed those ballot papers. "The Respondents need not answer questions when the substantial proof of non-compliance have not been well-marshalled" (Obi v INEC 2023).

It is the Petitioner who wants to win his case, he indeed approached the Court to be so declared and should prove same. Surely, the presumption of regularity enjoyed by INEC's results are not rebuttable by presumptuous postulations or rhetorical questions but only by cogent, credible and acceptable evidence.

The Petitioner called up 30 Polling Unit agents some of whom 1st Respondent insisted were not names submitted to her as PU agents. None of them in their written depositions linked any evidence of ballot papers to their testimonies. PW31 is hearsay evidence been the State Collation Agent who was not at the PU and not credible.

The expert witness (PW32) before the open Court testified he relied only on the CTCs from INEC. This is not enough to prove same in my opinion as there were expected PU agents or eyewitnesses who saw first hand or those who even queried the counting of these "alleged" invalid ballot papers at the PUs or even POs who should ordinarily testify to this effect.

In Section 64(3) supra, POs were expected to write statements on rejected ballots and reasons adduced, which shall be copied by PU agents on request. There was no copy of the PO statements on rejected ballot papers or even those by the PU agents and reasons thereto tendered by any of the PU agents of the Petitioner, it is safe to say they are/were in agreement with the counted ballots at the PU level.

This was raised even by the Respondents and even confirmed by the trial Judge in Page 209 of the Judgement.

An expert witness should ordinarily give scientific or technical analysis to direct the Court to give a purposeful direction. However, PW32 tendered 'evidence' handed over to him by the Petitioner that had absolutely no backing of people who saw it first hand neither was there any scientific postulation to back what would have been deposed by the Party Agents.

Were these ballot papers tested in open Court? Our Jurisprudence is adversarial in nature, so dumping of documents on the tribunal to go on a voyage of discovery is unacceptable. The trubunal became mathematicians in the inner recesses of their Chamber, they simply jumped into the arena.

Our Courts have often prohibited inquisition or forensic examination of documents untested in Open Court.

"Such evidence must come from a witness who has the first hand knowledge of that which he testifies to. He must in other words be a witness who saw or heard or took part in the transaction upon which he was giving evidence. Where a witness gives an account of an information which is not within his personal knowledge, he would not be accredited as a competent witness." (Obi v INEC PEPT)

The tribunal hammered severally on Section 137 and Paragraph 46 of the INEC Manual guidelines and regulations and placed/elevated documentary evidence. In the same INEC Guidelines, Paragraph 41(1) of the 1st Schedule of the Electoral Act that insists on written deposition and oral evidence of witnesses. It begs to say there is a conflict.

In my humble view, this section cannot be wholly relied on.

Our Courts have always severally tied open Court cross-examination or evidence or linking documents to specific cases with respect to Section 36 of the 1999 CFRN.

"Therefore, it is an infraction of fair hearing principle for the court to do in its chambers, what a witness to the party in a case had not himself done in open court to advance or protect the interest of the party." (Ucha v. Elechi SC)

The doctrine of fair hearing derives its roots from Section 36 of the 1999 CFRN. The Constitution is the fons et erigo, the Supreme document of the land and when it is in conflict with any other document, it stands tall like Mount Gibraltar above every and any.

The 1st Respondent's objection on this was jettisoned by the tribunal.

Lastly, to buttress a point with regards to the Returning Officer... the evidence before the tribunal did not show any disputations from the PU agents of the Petitioner to oppose the counting of ballot papers without official marks, etc.

The PU is the building-bloc, the fundamental stage of any election in Nigeria.

In this petition, there is no where a PU agent testified about his PU with respect to unsigned or undated ballot papers or even tendered the report in open Court or through his witness statement, about his rejection on counting of these 'invalid' ballot papers (either orally or in writing).

Their acceptance of this allowed the PO and subsequently the returning Officer as there were no open rejection by agents of the Petitioner, at any stage of counting.

See Section 64(1),(3) of the Electoral Act supra

What the Petitioner simply did was harvest unmarked ballot papers LGA by LGA that had the votes of the 2nd Respondent and dumped before the Court. This is a fundamental error of huge proportion.

This should have been listed PU by PU serialised (see Buhari v Obasanjo, Udom v Umana)

The questions that comes to my mind are:-
A. How did the judges arrive at the serialization of the ballot papers, that it was/wasn't from a book sheet since this wasn't provided by the Petitioners.

B. How did they partition it, PU by PU since the Petitioner didn't do that?

C. Was EC40G tendered alongside? Did the tribunal come to the conclusion if some of those ballot papers existed in Polling Units that were already cancelled for violence or over-voting or BVAS by-pass?

D. Was there any Ward Collation Agent called up either in writing or oral evidence to testify?

E. How many of these ballot papers were unstamped, how many were undated, how many had no watermarks? None was provided.

How did they arrive at these decisions?

It is not the Court’s lot to be saddled with nor can it suo motu assume the partisan responsibility of tying each bundle of such documentary evidence to the appellant’s case to prove the malpractice alleged. It would amount to the Court doing a party’s case which will occasion injustice to the other party. The Court as an arbiter must not get into the arena and engage itself in doing a case for one party to the disadvantage of the other party." (Omisore v Aregbesola SC) Ogunbiyi JSC rtd

The Court is an adjudicator not an investigator.

^{It is clear that the 2nd & 3rd respondents raised this objection which was over-ruled. (See 2nd paragraph in page 209).}

"...the law is clearly settled that specifying the particular PU or specific places where irregularities are alleged to have occurred are material particulars in an election petition which allege irregularities and malpractices but fail to specify the Polling Units or specific places where the irregularities or malpractices occurred are bereft of material particulars and such averments are incompetent and liable to be struck out. (Obi v INEC 2023), (Belgore v. Ahmed SC), (Ikpeazu v Otti SC)

The tribunal made another error that should raise eyebrows.

In Page 222, was Gawuna a Party to the suit? Absolutely not.


I will pause for now...... rolams, garfield1 engineerboat bluntcrazeman

Nothing much to say except that 63 has two sections.one for petitioners abd two for respondents.the burden of proof is mostly on the petitioner but at times on a few cases shifts quickly to the respondents.
Guidelines as stated by you refers to watermarks and stamps.the 165,000 invalid votes were from the 235,000 cancelled votes.ec40g was tendered by apc and inec showing manifest irregularities.