Fresh election is in order where no clear winner emerged 4 b

IN THE COURT OF APPEAL
HOLDEN AT OWERRI JUDICIAL DIVISION
THURSDAY THE 31ST DAY OF DECEMBER 2015
BEFORE THEIR LORDSHIPS:
HON. JUSTICE OYEBISI FOLAYEMI OMOLEYE PRESIDING JUSTICE COURT OF APPEAL
HON. JUSTICE CHINWE EUGENIA IYIZOBA JUSTICE, COURT OF APPEAL
HON. JUSTICE SAMUEL CHUKWUDUMEBI OSEJI JUSTICE, COURT OF APPEAL
HON. JUSTICE TIJSNI ABUBAKAR JUSTICE, COURT OF APPEAL
HON. JUSTICE JAMILU YAMMAMA TUKUR JUSTICE, COURT OF APPEAL
CA/OW/EPT/GOV./6/2015
BETWEEN
ALEX OTTI
ALL PROGRESSIVE GRAND ALLIANCE (APGA) ………………………..…………APPELLANTS
AND
OKEZIE IKPEAZU
PEOPLES DEMOCRATIC PARTY (PDP)
INDEPENDENT NATIONAL ELECTORAL COMMISION (INEC)……………. RESPONDENTS

Having found that there was no re-run elections; we are bound to consider the grievance of the Appellants with regards to the allegation of non-compliance with the provisions of the Electoral Act, 2010 (as amended) particularly with respect to the three local government areas, viz: Osisioma, Obingwa and Isiala Ngwa North Local Government areas. The Appellants/Petitioners averred in their

Petition thus:
16. Your Petitioners state that the process of the election in Osisioma, Obingwa and Isiala Ngwa North Local Governments entirely, and 9 Polling Units in Umuahia Urban Ward, in Umuahia North Local Government as well as 82 Polling Units in Ugwunagbo Local Government Areas forming part of the on (sic) which the 1st Respondent was returned as the winner of the election did not comply with the criteria outlined in paragraphs 14 -15 above which were substantial, and the non-compliance substantially affected the result of the election, and return of the 1st Respondent as winner thereof.

29. The petitioners state that, save in 14 Local Government Areas where the election duly held, the purported election in the remaining three Local Government Areas of Abia State was not validity conducted and was vitiated by substantial noncompliance with the applicable mandatory provisions of the Electoral Act, 2010 as amended and approved INEC Guidelines and the Manual for Election Officials 2015.

36. Petitioners shall show that with regards to the results credited to the 1st Respondent in OSISIOMA LOCAL GOVERNMEMT AREA-
b. In the local government the total number accredited votes uploaded into the INEC Data Base was 19, 120 voters whereas in the result announced by the State Returning Officer the total number of accredited voters was given as 52, 370.
c. In the local government the total number of votes ascribed to the 1st Respondent in the final results announced by the returning officer was 47, 444 which is double the total number of validly accredited voters in the local government area at the election.

37. Petitioners shall show that with regards to the result credited to the 1st Respondent in the OBINGWA LOCAL GOVERNMENT-
b. In the local government the total number accredited votes uploaded into the INEC Data Base was 33, 062 voters whereas in the result announced by the State Returning Officer the total number of accredited voters was given as 88,917 voters.
c. In the local government the total number of votes ascribed to the 1st Respondent in the final results announced by the returning officer was 82, 240 which is double the total number of validly accredited voters in the local government area at the election.
38. Petitioners shall show that with regards to the result credited to the 1st Respondent in the ISIALA INGWA NORTH LOCAL GOVERNMENT-
b. In the local government the total number accredited votes uploaded into the INEC Data Base was 23, 548 voters whereas in the result announced by the State Returning Officer the total number of accredited voters was given as 88,917 voters.
c. In the local government the total number of votes ascribed to the 1st Respondent in the final results announced by the returning officer was 27,426 which is double the total number of validly accredited voters in the local government area at the election.
In support of the above averments, PW20 testified via his witness statement on oath. The 1st, 2nd and 3rd Respondents’ counsel have all launched a tirade against PW20 that his evidence is hearsay and also that the Tribunal was right to have discountenanced his evidence due to the fact that his credibility was shaken since it turned out that he is not a legal practitioner under the Legal Practitioners Act (LPA) as he claimed. Regarding the credibility of PW20, contrary to the argument of the learned senior counsel of the 1st Respondent, nowhere in the printed record can it be found where PW20 claimed to be a legal practitioner under the LPA as alleged. The witness merely stated that he is a legal practitioner and the context of his claim thereon is more evident during cross examination when he stressed and maintained that he was not called to the Nigerian Bar.
The foregoing reveal that rather than shake his creditability of PW20, his testimony portrays him as a witness of truth because he did not at any time claim to be a legal practitioner within the meaning of the LPA.

As to his evidence being hearsay, it is apparent that PW20 was the Appellant’s State Collation Agent. It is on this basis that he testified at the trial tribunal. We must say that as the 2nd Appellant’s State Collation Agent, PW20 can competently testify as to the happenings at the State Collation Centre and any evidence given in this regard shall not be hearsay as same will be within his personal knowledge as the Agent of the 2nd Appellant. Therefore, we are of the firm view and hold that the PW20, as the Appellants’ State Collation Agent is in the best position to give evidence establishing the allegation of over voting, hence his evidence in this regard cannot be regarded as hearsay.
Meanwhile, to further establish the allegation of over voting in their petition, the Appellants/Petitioners subpoenaed PW19, one Mrs Abimbola Oladunjoye, Head of Unit, Data Management, ICT Department of the 3rd Respondent who testified before the Tribunal and tendered
Exhibit PWC2.

The purport of the testimony of PW19 as reproduced above is that not only were Smart Card Readers used for accreditation of voters in the affected local government elections, information of accredited voters from different polling units of the State were uploaded unto the database of the 3rd Respondent and the information is conclusive and correct as to the number of accredited voters. Therefore, in the absence of any evidence to the contrary, the figures indicated on the INEC Data Base Report can be taken as conclusive and the correct in proof of the figures of the total number of accredited voters. Quite surprisingly, none of the Respondents deemed it fit to cross examine the witness on the testimony given by her at the trial of the Petition.
The law is settled that where evidence given by a witness in favour of a party was not challenged by the opposing party who had the opportunity to do so, same can be relied upon by the court which will in turn ascribe probative value to it, as evidence that it neither contradicted nor debunked remains good and reliable evidence. See OBINECHE V. AKUSOBI (2010) 12 NWLR (Pt. 1208) 383 SC.
Ordering of fresh election will arise only where a clear winner did not emerge after the deduction of the illegal votes. Having established that there was over voting in Isiala Ngwa, Obingwa and Osisioma Ngwa local government areas, the entire votes recorded in the area shall be deducted from the overall results declared by the 3rd Respondent. If the unlawful votes from the three local governments areas are subtracted from the total votes of the 1st Respondent which is 264,714, he will be left with, 115, 444 votes. On the other hand, the figures credited to the 1st Appellant are 6, 913 (ISIALA NGWA), 6, 952 (OBINGWA) and 2,685 (OSISIOMA), bringing the total number of votes from the three local governments areas to 16,550. If the unlawful votes are subtracted from the total votes of 180, 882 credited in favour of the 1st Appellant, he will be left with 164,332 votes.
Following the deductions of the unlawful votes garnered from the disputed three local government areas, the 1st Appellant having scored 164, 332 valid votes, as opposed to the 1st Respondent who scored 115, 444 votes, ought to have been declared the winner of Abia State Governorship Elections conducted on the 11th and 25th April, 2015.
Section 140(3) of the Electoral Act, 2010 (as amended) provides that, if the Tribunal or Court determines that a candidate was not validly elected on the ground that he did not score the majority of the valid votes cast in the election, the Tribunal or Court may be shall declare as elected the candidate who scored the highest number of valid votes cast and satisfied the requirements of the constitution and the Electoral Act. In the instant case, we have no doubt from all we have stated hereinbefore that, the 1st Appellant having scored the highest number of valid votes and satisfied the requirements of the 1999 Constitution and other relevant laws. He therefore ought to have been returned as the validly elected Governor of Abia State at the governorship elections held in Abia State on the 11th and 25th April, 2015.

ISSUE 9:
Whether in the light of the pleadings, the evidence on record and the extant laws, the learned trial Judges of the Tribunal were not wrong in holding that the Appellants failed to prove the criminal allegations made in the pleadings?
This issue deals with proof of criminal allegations made by the Appellants/Petitioners. The learned senior counsel for the Appellants addressed this issue in his submission under 1 and 17 above.
The learned senior counsel for the 1st, 2nd and 3rd Respondents also addressed the issue while responding to the submissions of the learned senior counsel for the Appellants under the said issues 2 and 17 already set out earlier on the above in this judgment.
We are of the view that having considered and resolved issues 2 and 17, the necessity of resolving issue 9 is obviated.
Having resolved all the above issues other than the issue relating to the powers of the Returning Officer with regards to cancellation and de-annulment of election results, in favour of the Appellants we hereby hold that this appeal has merit and ought to succeed. The appeal is accordingly allowed.
The judgment of the Tribunal delivered on the 3rd of November 2015 is hereby set aside.
It is ordered that the results of Isiala Ngwa North, Obingwa and Osisioma Local Government Areas of Abia State be and are hereby cancelled.

With the cancellation of the results in three local government areas, the scores of the Appellant band the 1st Respondent are as follows:
1st Appellant 164, 332 votes and the 1st 115, 444 votes.

The election, rerun and declaration of the 1st Respondent are hereby nullified and set aside.
The 1st Appellant, ALEX OTTI, having scored the majority of lawful/valid votes cast at the elections/supplementary elections of 11th and 25th April, 2015 respectively, held in Abia State for the occupation of the seat of Governor of Abia State and having satisfied the constitutional requirement of one quarter of the votes in at least two-thirds of the Seventeen Local Government Areas of Abia State is hereby returned as the duly elected Governor of Abia State.
It is hereby ordered that the Certificate of Return already issued to the 1st Respondent, Okezie Ikpeazu, by the 3rd Respondent, INEC is hereby set aside.

It is further ordered that the 3rd Respondent, INEC shall forthwith issue the Certificate of Return to the 1st Appellant, ALEX OTTI, as the winner of the Abia State Governorship Elections conducted on the 11th and 25th April 2015.
It is hereby ordered that the parties shall bear the costs expended by them in the prosecution and defence of the appeal, respectively.