HON. SEGUN ADEWALE & ANOR v. HON. SOLOMON OLAMILEKAN ADEOLA & ORS (2015) LSELR-30085(CA) In The Court of Appeal of Nigeria On Friday, the 13th day of November, 2015 CA/L/EP/SN/1024/15 Before Their Lordships IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria Between 1. HON. SEGUN ADEWALE 2. PEOPLES’ DEMOCRATIC PARTY (PDP) Appellant(s) AND 1. HON. SOLOMON OLAMILEKAN ADEOLA 2. ALL PROGRESSIVE CONGRESSIVE CONGRESS 3. INDEPENDENT NATIONAL ELECTORAL COMMISSION Respondent(s) RATIO DECIDENDI 1. EVIDENCE – DOCUMENTARY EVIDENCE-Whether a court should engage itself in sorting out bundles of documentary evidence before it in order to determine its relationship with case before it “The issue here is whether a court or Tribunal has a duty to examine the bundles of documents to find out how they relate to the case of the party who tendered them, where the party who relied on them to prove his case has not sorted them out and has not shown how each of the documents supports any aspect of his case. The rule that has developed through the cases is that the court should not engage itself in the task of sorting out the bundles of documentary evidence before it, examine same and determine its relationship with the case before it. The reason for this rule is to avoid a situation where the court ends up assisting a party in the presentation of his case against the other party or puts itself in a situation where it can reasonably be perceived to be doing so. This rule ensures the equality of arms of the parties in the case before the court. It is a rule of fair hearing that seem to provide an exception to another rule of fair hearing that a court must consider all the evidence adduced by both sides in the case. This rule therefore postulates that the court should not consider bundles of documentary evidence whose relationship with the case has not been explained by the party that produced them, to avoid helping a party present its case.The Supreme Court laid down this rule in a long line of cases. In Jalingo v. Nyame (1992) 3 NWLR (Pt 231) 538 the Supreme Court held that “A party relying on document in proof of his case must specifically relate each of such documents to specific area of his case in respect of which the document is being tendered. It will be an infraction of fair hearing for the court to do in its chambers, what a party has not himself done in advancement of39his case in open court”. The supreme court again in Ucha v. Elechi (2012) 13 NWLR (pt.1317) 330 at 360 held that “PW 115, the 1st petitioner/appellant, it was he that tendered all the election documents relevant in this case, to wit: forms EC8A, EC8B, EC8C, EC8D, EC8E. Exhibits p.95 p.139. He dumped them on the tribunal and did not tie his evidence to the pages and paragraphs he wanted the tribunal to use in evaluating his evidence”. “I cannot agree more with the above. When a party decides to rely on documents to prove his case, there must be a link between the document and the specific area/s of the petition. He must relate each document that was tendered. On no account must counsel dump documents on a trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case see ANPP v. INEC (2010) 13 NWLR (Pt. 1212) p. 549.” Per AGIM, J.C.A. (Pp. 38-40, Paras. C-D) (…read in context) 2. EVIDENCE – DOCUMENTARY EVIDENCE- Whether documentary evidence can serve any purpose in a trial where there is no oral evidence “It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties explaining its essence. It is the law and we agree that the Tribunal cannot descend into the arena of conflict by assisting the petitioners to examine the documents in chambers.” Per AGIM, J.C.A. (P. 35, Paras. B-C) (…read in context) 3. PRACTICE AND PROCEDURE – ACADEMIC EXERCISE: Attitude of the Courts towards indulging in academic exercise “In the light of the foregoing I hold that this appeal is not valid for this court’s consideration. This is because courts have no jurisdiction to entertain and determine questions that have no utilitarian value. In Nwobosi v. ACB Ltd (1995) 6 NWLR (pt.404) 658 at 681, the Supreme Court held that where the resolution of an issue one way or the other, will be no more than engaging in an academic exercise, a court will not entertain such an issue. See also Global Transport Oceanico SA and Anor v. Free Enterprises Nig Ltd (2001) 2 SC 154 and Agbakoba v. INEC and Ors (2008) LPELR-232 (SC).” Per AGIM, J.C.A. (P. 30, Paras. B-E) (…read in context) 4. EVIDENCE – ADMISSIBILITY OF PUBLIC DOCUMENT- At what point, will a public document be deemed admissible “….it is settled law that once a public document is certified and signed as required by S. 105 of the 2011 Evidence Act it is admissible upon production and its custody need not be proven, that the certified copies of the forms EC8A from 3rd respondent were rightly admitted, that the duplicate copies of the said forms received from the polling agents were not challenged or contradicted by the respondents and that the documents were not dumped on the Tribunal, but were carefully analyzed to support the case of the appellants as articulated and pleaded in their petition.” Per AGIM, J.C.A. (Pp. 36-37, Paras. C-A) (…read in context) 5. ELECTION PETITION – ALLEGATION OF IRREGULARITIES-Whether allegations concerning figuresscores of candidates at an election must come directly from officers on the field where votes were collated The principle that a document speaks for itself is of limited application in proving the unlawfulness of votes or election results. This is because of the judicially established requirement that to prove unlawfulness of votes and results both the election documents and the testimonies of witnesses must be relied on. In ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT. 120) page 1 at 173 the Supreme Court per Niki Tobi JSC held that- “A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked the evidence from an eyewitness. No they must be eye-witnesses43 too.”It further held at page 173 paras. F-G that “Both forms and witnesses are vital for contesting the legality or lawfulness of the votes and the subsequent result of the election. One cannot be substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recordings of votes; wrong doings and irregularities, which affected substantially the result of the election.”In BUHARI v. OBASANJO (2005) 13 NWLR (Pt.941) 1 at 317 the Supreme Court per AKINTAN JSC held that-,”The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who on the field where the votes were counted and/or collated.” Per AGIM, J.C.A. (Pp. 43-44, Paras. A-D) (…read in context) 6. APPEAL – APPEAL AGAINST THE DECISION ON MERIT- Whether a party can validly appeal against a decision on the merit of the case “Where a court or tribunal has held that a case before it is incompetent and proceeds thereafter, in the alternative and out of abundance of caution, in case that holding on appeal is found to be wrong, to determine the merit of the case, he cannot validly appeal against the decision on the merit of the case, if he has accepted the holding that the case is incompetent as correct. The decision on the merits is a mere alternative and contingent decision that has no effect so long as the decision that the petition is incompetent remains correct, valid and subsisting. In any case, generally, where an appeal, even if successful, would not change the legal position of the parties thereto because of the failure to appeal against some other holding, finding or decision on some vital and fundamental issues, the appeal would serve no useful purpose.” Per AGIM, J.C.A. (Pp. 29-30, Paras. D-B) (…read in context) 7. EVIDENCE – CALLING OF WITNESSES: Effect of failure to call witnesses by an appellant “In ACN v. Nyako (2013) All FWLR (pt.686) 424 at 480-481, para. G-F, the Supreme Court held that- It is the failure of the appellant to call a witness to provide the necessary nexus between the documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same that makes the difference between the notion of dumping exhibits on the one hand, and tendering bulk exhibits, on the other. See the case of Buhari v. INEC (2008) 12 SC 1…..” Per AGIM, J.C.A. (P. 45, Paras. B-D) (…read in context) 8. EVIDENCE – CALLING OF WITNESSES: Whether a petitioner has the obligation to call such material witness(es) he requires to prove his case “Although the Appellants as Petitioners at the Tribunal have no obligation to call any particular number of witnesses or a host of witnesses, what he has obligation to do is to call such material witness or witnesses he requires to prove his case and if one credible witness is all that he requires to make his case, so be it. See: Osasuwa v. Isibor (2004) 3 NWLR (Pt. 859) 16; Ako v. Akona (2005) 11 NWLR (Pt.935) 150; AD v. Fayose (2005) 10 NWLR (Pt.932) 151.” Per HUSAINI, J.C.A. (P. 50, Paras. DF) (…read in context) 9. COURT – DUTY OF JUDGE: Duty of Judge as it relates to the case presented by parties “A Judge is to descend from his heavenly abode, no lower than the treetops, to resolve earthly disputes and return to the supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a Judge abandons that duty and starts looking for?40 irregularities in electoral documents, investigating documents, and in investigation documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.” Per AGIM, J.C.A. (Pp. 40-41, Paras. E-A) (…read in context) 10. ELECTION PETITION – ELECTION PETITION TRIBUNAL-Whether a tribunal is duty bound to sort out any document on its own for the purpose of linking same to the evidence before it “It is not also the duty of the Tribunal to sort out any document on its own for purpose of linking same to the evidence before it to ensure that the credibility and reliability of the evidence ascertained and applied towards the just determination of the case. A judge, as rightly held, is an adjudicator and not an investigator and is therefore not permitted to undertake the kind of examination urged upon the tribunal by the appellant. ” Per AGIM, J.C.A. (P. 46, Paras. B-D) (…read in context) 11. APPEAL – FINDINGS OF FACT: Effect of findings of fact not appealed against “A finding of fact against which there is no appeal remains binding and conclusive. It is the law that any finding of facts made by a trial Court for which there is no appeal remain valid and subsisting. In other words, where a trial Court makes crucial findings of fact on an issue before it and upon which the Judgment of the Court is made and such findings are not appealed against or challenged on appeal such findings remain valid and are deemed admitted by the Appellant or the party against whom they were made and the Appellate Court will be right to act on it. See: Ebemighe v. Chi (2011) 2 NWLR (Pt. 1230) 65; Amoshima v. State (2011) 14 NWLR (pt. 1268) 530; L. H. A. B. U. M. B. v. Anyip (2011) 12 NWLR (Pt. 1260) 1; CPC v. INEC (2011) 18 NWLR (pt. 1279) 493; SPDCN Ltd. v. Ejebu (2011) 17 NWLR (Pt. 1276) 324. It is of no consequence that because the Tribunal proceeded to hear the Petition on the merit, that earlier finding made by it was no longer valid or relevant. lt is, so far as the finding was a subsisting finding of the tribunal, this Court can act on it to dismiss the appeal. ” Per HUSAINI, J.C.A. (Pp. 48-49, Paras. E-D) (…read in context) 12. EVIDENCE – HEARSAY EVIDENCE: At what point will an evidence amount to hearsay evidence of documentary type “The question is whether himself could have tendered those documents or Exhibits as he did or give evidence in respect of those other wards relative to the election to which allegations of corrupt practices falsification and irregularity were made. Decisions in Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, 317; Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352, 399- 400; Abubakar v. Yar’adua (2008) 19 NWLR (Pt. 1120) 1, 173; Osigwelem v. INEC (2011) 9 NWLR (Pt. 1253) 425,451; Alao v. Akana (2005) 11 NWLR (Pt. 934) 160; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1591) 211, 245; Doma v. INEC (2012) All FWLR (Pt.628) 813,829, all go to show that he cannot, as such evidence from him would amount to hearsay evidence of documentary type. In other words evidence of some other persons who are makers of those documents and who have personal knowledge of the contents of those documents are relevant and must be called.” Per HUSAINI, J.C.A. (P. 51, Paras. A-E) (…read in context) 13. APPEAL – NATURE OF AN APPEAL: Effect of failure to appeal against the decision of a court “It is trite that the parties to the petition, by failing to appeal against the decision or challenge it by any other legal process, have accepted it as correct and binding upon them.See Biariko and Ors v. Edeh-Ogwuile (2001) 4 SC (Pt.11) 96, S.P.D.C Nig Ltd v. Edamkue and Ors (2009) LPELR-304 (SC), Iyoho v. Effiong (2007) 4 SC (Pt.111) 90 and Amale v. Sokoto Local Government and Ors (2012) LPELR-7842 (SC).” Per AGIM, J.C.A. (P. 29, Paras. A-B) (…read in context) 14. PRACTICE AND PROCEDURE – NON-COMPLIANCE WITH RULES OF COURT: Whether noncompliance with the rules will render a preliminary objection incompetent I agree with learned counsel for the appellant that the procedure adopted by 1st respondent in incorporating or embedding the preliminary objection in the 1st respondent’s brief of argument without more is not in keeping with Order 10 Rule 1. But I do not think that such non compliance with the said Rule can render the 1st respondent’s preliminary objection incompetent. The established Judicial approach through the cases is to condone such procedure. See Magit v. University of Makurdi (2005) LPELR – 1816 (SC), Oforkire and Anor v. Mauike and Ors (2003) LPELR- 2269(SC), Uwazurike & Ors v. A-G of the Federation (2007) 7 SC 169 and Auto Import Export v. Adebayo &Ors12 (2002) 12 SC (Pt.1) 158.” Per AGIM, J.C.A. (Pp. 12-13, Paras. B-A) (…read in context) 15. APPEAL – NOTICE OF APPEAL: Effect of an invalid notice of appeal “I uphold the submission of learned counsel for the 1st respondent that the notice of appeal that commenced this appeal cannot be deemed as properly filed. The result is that it is incompetent and invalid. Since an appeal cannot be founded and sustained on an invalid notice of appeal, then this appeal is incompetent. It is accordingly hereby struck out. See Josiah Cornelius Ltd and Ors v. Ezenwa (1996) LPELR-1632 (SC) and In Re: Osibakoro D. Otuedon (1995) LPELR-1506 (SC).” Per AGIM, J.C.A. (P. 20, Paras. C-E) (…read in context) 16. JUDGMENT AND ORDER – ORDER OF RETRIAL: At what point will an order of retrial be made by an apex court “I understand the Tribunal to mean that having held the petition incompetent, there would have been no need to go further and the proceedings ought to be terminated at that point, but it would however proceed to consider the merit of the petition, in case its holding is wrong. The fact that the Tribunal out of abundance of caution still considered the merit of the petition after holding that it is incompetent does not reverse or overrule its said holding. Proceeding to determine the merit of the petition was an alternative position. Since its decision is subject to review on appeal to this court, it acted rightly by determining all the issues brought before it including the competence and merit of the petition. This is in keeping with the prevailing judicial practice established by a plethora of Supreme Court decisions that a court below the apex court should pronounce on all the issues arising or raised in a case before it, even if the case had been disposed of by only some of the issues for determination, to avoid the situation where the case would have to be remitted by the apex court to the lower court for retrial of the issues not determined, because the appeal on the only issues determined had been allowed. See 7up Bottling Co. Ltd v. Abiola and Sons Bottling Co. Ltd (2001) 6 SCNJ, Brawal Shipping v. Onwudike Co. (2000) 6 SCNJ 508, Ojobele v. Nabia (1972) 6 SC 27, Atanda v. Ajani (1989) 3 NWLR (pt.111) 571 at 539 (SC) Okonji v. Njokama (1991) 7 NWLR (pt.202) 131 at 150-152 (SC), Titiloye v. Olupo (1991) 7 NWLR (pt.205 519 at 529 (SC) Katto v. CBN (1991) a NWLR (Pt.214) 126 at 149 (SC). This approach was adopted by this court in PDP v. INEC and Ors (2015) 9 CAR 207 at 240 (CA) following the above decision of the Supreme Court.” Per AGIM, J.C.A. (Pp. 25-26, Paras. B-E) (…read in context) 17. LEGAL PRACTITIONER – STAMP/SEAL: Whether the issuance of the NBA approved seal/stamp qualifies as a process being signed or filed “The established fact that learned counsel for the appellant has applied for the issuance of the NBA approved seal or stamp to him, cannot qualify the process signed and filed by him in this appeal to be deemed as properly signed or filed. The provisions of Rule 10 (1) of the Rules of Professional Conduct are very clear and unambiguous. What it requires is that the seal or stamp be affixed on the process or document before it can be deemed as properly signed or filed. The submission of learned counsel for the appellant that he has applied for and is yet to be issued his seal or stamp suggests that he is explaining why the notice of appeal and the other processes signed by him do not bear his seal or stamp. Such a submission is not tenable in view of the clear requirement of Rule 10(1) of the Rules of Professional Conduct. The requirement of the Rule is not that the legal practitioner should have the seal or stamp before documents signed by him can be valid. If that was the requirement of the said Rule, then the explanation that he has applied for the issuance of the stamp or seal to him would have been tenable. The requirement is that the court process or other legal document must bear the seal or stamp of the legal practitioner that signed it. So the fact that a legal practitioner possesses the seal or stamp but failed to affix it on the court process or document signed by him would not satisfy the requirement of Rule 10(1) and the process or legal document cannot be deemed to be properly signed or filed.” Per AGIM, J.C.A. (Pp. 19-20, Paras. A-B) (…read in context) 18. LEGAL PRACTITIONER – STAMP/SEAL: Conflicting decisions surrounding the effect of failure to affix the legal practitioner’s seal/stamp on a court process or legal document “I agree with the submission of learned counsel for the 1st respondent that judicial decisions are not yet settled on the effect of failure to affix the legal practitioner’s seal or stamp on a court process or legal document signed by him as legal practitioner, legal or adviser. We have been informed that there are two conflicting decisions of the Supreme Court on this point. The first one is Mega Progressive Peoples party v. INEC & Ors (SC/665/2015) said to have been delivered on 12th October, 2015 where it is said that the Supreme Court held that the failure to affix the legal practitioner’s seal or stamp on a court process or legal document would not render it improperly signed or filed. The second one is APC v. Yaki’ (supra) cited by learned counsel for the 1st respondent. It was said to have been delivered on 27th October, 2015. Learned Counsel for the 1st respondent submitted that the Supreme Court held that such failure to affix the seal or stamp would render the court process or legal document incompetent. Copies of the judgments have not been made available to us. So we are not in a position to know what was actually decided in those cases. If the two decisions are as we have been informed, then they are clearly in conflict. In the face of two or more conflicting Supreme Court decisions on a point the Supreme Court has repeatedly held that this court and indeed all courts below it are bound to follow its latest decision. See Osakwe v. F.C.E Asaba (2010) 10 NWLR (Pt.1201. Since we have not read the exact text of the said Supreme Court Judgments, we cannot rely on the mere ipse dixit of counsel. As it is we will prefer to determine this issue solely on the basis of Rule 10 (1) of the Rules of Professional Conduct in the Legal Profession.” Per AGIM, J.C.A. (Pp. 17-18, Paras. C-D) (…read in context) 19. LEGAL PRACTITIONER – STAMP/SEAL: Whether a legal practitioner who signs or files a legal document must affix his seal and stamp as approved by the Nigerian Bar Association “It is not in dispute that the notice of this appeal and the appellant’s brief of argument do not bear the NBA approved seal/stamp of learned counsel, Dr. Yemi Oke, who signed them, contrary to Rule 10 (1) of the 2007 Rules of Professional Conduct for Legal Practitioners which require that a legal practitioner acting as such legal practitioner, legal officer or adviser of any Government Department or ministry or any corporation, who signs or files a legal document must affix on any such document his seal and stamp approved by the Nigerian Bar Association. The said Rule 10 (1) provides that without such seal/stamp the document so signed or filed by the legal practitioner shall be deemed not to have been properly signed or filed.” Per AGIM, J.C.A. (Pp. 16-17, Paras. D-A) (…read in context) 20. EVIDENCE – TENDERING OF DOCUMENT(S): The basic aim of tendering documents in bulk “In Action Congress of Nigeria v. Lamido (2012) All FWLR (pt. 630) 1316, (2012) 8 NWLR (Pt.1303) 560 – 585 at 592 the apex court also held that- “The basic aim of tendering documents in bulk is to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents. It is not the duty of a court or tribunal to embark upon cloistered justice by making enquiries into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator, not an investigator. The appellant other than tendering those documents, did not endeavour through its witnesses to link them up with the specific areas of the petition. Needless to restate that it was not the duty of trial tribunal judges to undertake that assignment in the comfort of their chambers. The law is trite that the tendering of a document by a party and the? purport for which it is tendered cannot be left a subject of speculation.” Per AGIM, J.C.A. (Pp. 41-42, Paras. B-A) (…read in context) EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): The general election to the office of member representing the Lagos West Senatorial District in the Senate of the Federal Republic of Nigeria held on 28-3-2015 and on 29-3-2015. The result was declared by the 3rd respondent who conducted the election. The 3rd respondent declared the 1st respondent winner of the election and returned him elected as member of the Senate of the Federal Republic of Nigeria representing the Lagos West Senatorial District. The Appellants challenged the said result declared by the 3rd respondent by filing an election petition No EPT/LEGH/EPT/L/8/15 in The Lagos State National and State Houses of Assembly Election Tribunal on 17-4-2015, on the grounds that the 1st respondent was, at the time of the election, not qualified to contest the election having not been validly nominated by the 2nd respondent contrary to S. 85(1) of the Electoral Act 2010, as amended, and that the 1st respondent was not duly elected by the majority of lawful and valid votes cast at the said election as stipulated in S.138(1)(c) of the Electoral Act, 2010 as amended. The petition prayed for- ?1) A ?1 DECLARATION that the 1st Respondent was, at the time of the election, not qualified to contest the election having not been validly nominated by the 2nd Respondent contrary to Section 85(1) of the Electoral Act 2010 (As Amended). 2) A DECLARATION that the votes credited to the 1st Respondent especially in the Ikeja Local Government Area, Alimosho Local Government Area, Mushin Local Government Area, Ifako-Ijaiye Local Government Area, Agege Local Government Area, and ward “E” in Badagry which fall under the Lagos West Federal Constituency are invalid, null and void for corrupt practices and noncompliance with the Electoral Act 2010 (As Amended) and Independent National Electoral Commission (INEC) Manual for Election Officials 2015. 3) AN ORDER of this Honourable Tribunal deducting all the votes wrongfully added to the votes of the 1st 2nd Respondents by which the 1st Respondent was wrongfully declared the winner of the said election. ?4) A DECLARATION that the 1st Respondent was not duly and lawfully elected by the majority of lawful votes cast in respect of the Election for Lagos West Senatorial District, Lagos State held March 28, 2015 in Ikeja Local ?2 Government Area, Alimosho Local Government Area, Mushin Local Government Area, Ifako-Ijaiye Local Government Area, Agege Local Government Area and ward “E” in Badagry which fall under the Lagos west Federal Constituency. 5) A DECLARATION that the petitioners, having scored the highest number of valid votes in election for Lagos West Senatorial District, Lagos State held March 28, 2015 in Ikeja Local Government Area, Alimosho Local Government Area, Mushin Local Government Area, Ifako-Ijaiye Local Government Area, Agege Local Government Area and ward “E” in Badagry on the recomputed and actual votes cast is, and hereby declared winner of the election and returned elected. 6) AN ORDER directing the 3rd Respondent to forthwith issue a certificate of return to the 1st petitioner as the winner of the election for Lagos West Senatorial District, Lagos State held March 28, 2015. ? The Respondents filed their respective replies to the petition. The petitioners filed their reply to the 3rd respondent’s reply. The said petitioners’ reply was subsequently amended with leave of the Tribunal. ?The 1st and 2nd respondents filed notices of preliminary objection on the grounds inter ?3 alia that the appellants lacked the locus standing to institute the election petition and that the petition did not specify the full results of the election declared by the 3rd respondent in that it states only the total votes scored by the 1st appellant and 1st respondent, and did not state the votes scored by the other five candidates who contested the election. Each of the 1st and 2nd respondents also filed a motion on notice praying for inter alia an order striking out the petition on the grounds already stated in their respective notices of preliminary objection. The 3rd respondent also filed a motion on notice seeking to strike outýcertain paragraphs of the petition and the grounds of the petition. The appellant’s brief of argument and reply briefs were settled by Dr Yemi Oke. The 1st respondent’s brief is settled by R.A.O. Adegoke Esq. The 2nd respondent’s briefs was settled by Omotayo Olatunbosun Esq. The 3rd respondent’s brief was settled by Oluwaseun Olusiyi Esq. ý??The appellants adduced evidence in support of their petition through the 1st appellant as PW1. Each respondent refused to adduce evidence in defence of the petition and rested on the case of ý??4 the petitioners. Following the adoption of written final addresses, the tribunal on 18-9-2015 decided the preliminary objections by the respondents and rendered its judgment on the petition. The Tribunal dismissed the objections on all grounds except the ground that the petition did not state the scores of all the candidates that contested the election. The Tribunal held thusly- “We however uphold the objection on the ground that the petitioners did not comply with the previous Paragraph 4(1) (c) if the First Schedule to the Electoral Act, 2010 (as Amended) by failing to state the scores of all the candidates that contested the election: We disagree with the view of the petitioner’s Counsel that it is sufficient compliance with the said provisions by stating the scores of the 1st Respondent and the 1st petitioner. It is even difficult to know the scores of the 1st Respondent and The 1st petitioners in view of the disparity in the scores state in paragraph 9 of the oath of the PW1 on the other. Following from this decision the petition ought to be struck out as incompetent; however, we shall determine the petition on its merit in the event that we are wrong in 5 our judgment in this regard.” The Tribunal after holding as above, proceeded to decide the merit of the petition. It held thusly- In the final analysis, our judgment is that from the evidence led before us in this petition and from the various rulings and findings, in this petition, we come to the conclusion that petitioners had failed to discharge the burden of proof on them and to that extent they had failed to establish any evidence of corrupt practices non-compliance or non-qualification with the provisions of Electoral Act, 2010 (as amended) or that it was the 1st petitioner who scored the highest number of lawful and valid votes cast at the said election so as to be entitled to be declared as winner thereof. Dissatisfied with the Tribunal’s dismissal of their petition, the appellants on 7-10-2015 commenced this appeal no. CA/L/EP/SN/1024/15 by filing a notice of appeal containing two grounds for the appeal. ý??It is not worthy that there is no ground of this appeal complaining against the decision of the Tribunal upholding the objection that the petition was incompetent because it did not state the votes scored by all the candidates that contested the 6 election. This appeal was entered in this court on 16-10-15 when the record of this appeal was received here. All the parties herein have filed, exchanged and adopted their respective briefs of arguments as follows: appellant’s brief of argument, the 1st respondent’s brief of argument, the 2nd respondent’s brief of argument, the 3rd respondents brief of argument, appellants, reply to the 1st respondent’s brief of argument and appellant’s reply to the 2nd respondent’s brief of argument. The 1st respondent in his brief of argument raised and argued a preliminary objection to this appeal in pages 3 to 7 of his brief of argument on the grounds thata. The Court of Appeal is without vires/jurisdiction to hear this appeal as presently constituted; b. The record of appeal was compiled and filed out of time; c. The appellants’ brief of argument is incompetent d.ýThe notice of appeal and the appellant’s brief of argument are incompetent, same having been filed without the seal/stamp of the legal practitioner who signed them. ý??The 2nd respondent on 2-11-2015 filed a motion on notice applying for an order striking out ground 1 of this appeal and issue No 1 in the appellants 7 brief of argument derived there from, on the ground that the said ground 1 is not derived from the judgment of the Tribunal appealed against. This objection is argued in pages 6 to 8 of the 2nd respondents brief of argument. The appellants’ brief of argument raised two issues for determination as follows: 1. Whether in the light of the construction of Paragraph 41(3) of the First Schedule to the Electoral Act 2010 (as amended) the Tribunal was right to have held that the appellants’ failure to give oral evidence as to the content of the documents tendered and admitted in evidence amount to dumping same at the Tribunal. (Distilled from Ground One) 2. Whether from the totality of evidence led by the appellants, the Tribunal was right when it held that the appellants had failed to discharge the burden of proof on them against the weight of evidence which were uncontradicted. (Distilled from Ground Two) The 1st respondent’s brief of argument also raised two issues for determination as follows- 1. Whether the Tribunal was right when it held that the Appellants failed to link the bundle of documents tendered by them to specific areas and allegations in the Petition by ý??8 calling polling agents to identify the documents and lead evidence as to the various allegations in the Petition. (Ground 1 of the Notice of Appeal). 2. Whether the Tribunal was right when it held that the Appellants failed to discharge the burden of proof on them and to that extent failed to establish any evidence of corrupt practices, noncompliance with the provisions of the Electoral Act, 2010 (as amended). (Ground 2 of the Notice of Appeal). The 2nd respondent’s brief raised two issues for determination thus- 1. Whether the tribunal was right in holding that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led to explain its essence. (Ground 1 of the notice of appeal). 2. Whether the tribunal was right when it held that the Appellant failed to discharge the burden of proof placed on them in establishing their petition. . (Ground 2 of the notice of appeal). The 3rd respondent’s brief of argument raised one issue for determination as follows- 1. Whether the Tribunal is in error to hold that the appellants have failed to discharge the burden of proof on them to lead relevant, credible and cogent evidence to sustain ?9 the grounds upon which they question the declaration of 1st Respondent as the duly elected Senator of the Lagos West Senatorial District with respect to the National Assembly Election conduct on 28th March, 2015 and 29th March, 2015. All the issues for determination raised in the respective briefs of argument of the parties to this appeal are essentially the same. I will determine this appeal on the basis of the issues for determination contained in the appellant’s brief of argument. But I will consider the preliminary objections to this appeal before I delve into the merit of the issues arising for determination in this appeal. Learned counsel for the 1st respondent has argued relying on the recent decision of the Supreme Court in A.P.C. v General Bello Sarkin Yaki (SC/722/12 delivered on 27-10-2015) that the notice of appeal that commenced this appeal is incompetent and invalid because the legal practitioner who signed it, did not affix his Nigeria Bar Association approved seal or stamp on it contrary to Rule 10 (1) of the Rules of Professional Conduct for Legal Practitioners 2007. ?Learned counsel for the appellants argued replicando that the preliminary 10 objection embedded in the 1st respondent’s brief of argument violates Order 10 Rule 1 of the Court of Appeal Rules 2011 and is therefore incompetent, that Paragraphs 8 and 9 of the Elections Tribunal and Court Practice Directionýplaced on the Secretary of the Tribunal the burden to compile, serve and transmit to this court the record of the Tribunal proceedings in the petition from which an appeal to this is made, within 10 days of receipt of the notice of appeal, that no duty is placed on the appellant to compile and transmit such record to this court, that the failure of the said Secretary to compile, serve and transmit such record within time cannot be visited on the appellant, that he has applied for the issuance of the legal practitioner’s Seal approved by the NBA since 20-10-2015 and he is yet to be issued with one, that the Access Bank teller No. 96420313 attached to the affidavit in support of the appellants’ reply brief shows this fact and that the body of judicial precedents on this point is not settled or are currently conflicting. ý??The argument of Dr.oke for the appellant that the 1st respondent’s preliminary objection is incompetent because it is 11 embedded in his brief of argument contrary to Order 10 Rule 1 of the Court of Appeal Rules 2011 is not valid. Order 10 Rule 1 of the Court of Appeal Rules 2011 requires that a respondent intending to rely on a preliminary objection to the hearing of an appeal, shall give the appellant three clear days notice of same before the hearing of the appeal by filing twenty copies of the notice of his intention to rely on the preliminary objection, which notice shall set out the grounds of the objection. I agree with learned counsel for the appellant that the procedure adopted by 1st respondent in incorporating or embedding the preliminary objection in the 1st respondent’s brief of argument without more is not in keeping with Order 10 Rule 1. But I do not think that such non compliance with the said Rule can render the 1st respondent’s preliminary objection incompetent. The established Judicial approach through the cases is to condone such procedure. See Magit v. University of Makurdi (2005) LPELR – 1816 (SC), Oforkire and Anor v. Mauike and Ors (2003) LPELR- 2269(SC), Uwazurike & Ors v. A-G of the Federation (2007) 7 SC 169 and Auto Import Export v. Adebayo &Ors 12 (2002) 12 SC (Pt.1) 158. The requirement of notice to the appellant of the respondent’s intention to rely on a preliminary objection on certain grounds is clearly satisfied by the procedure adopted by the 1st respondent in stating the objection and the grounds there for in his brief of argument. In any case this court is vested with the discretion by Order 20 Rule 3 (1) of the Court of Appeal Rules to waive compliance with the Court of Appeal Rules or any part of it in an exceptional circumstance and where it considers it in the interest of justice to do so. For the above reasons, I hold that the preliminary objection to this appeal raised and argued in the 1st respondent’s brief of argument is competent. I will now consider the argument that this court lacks the jurisdiction to hear this appeal because the record of this appeal was compiled and filed after the 10 day period prescribed by Paragraph 9 of the Election Tribunal and Court Practice Direction 2011 for the compilation and service of the record of an appeal to this court from the decision of the Tribunal. Paragraph 9 of the Election Tribunal and Court Practice Direction 2011 provides that “the Secretary ?13 shall within a period of not more than 10 days of the receipt of the notice of appeal, cause to be compiled and served on all the party, the record of proceedings”. The respondents have not shown that the record of this appeal was complied out of the time stipulated by Paragraph 9 of the said Directions. It is not enough to assert without more that the record was compiled out of time. To prove that the record was compiled out of time, the date it was compiled must be stated or shown. Without knowing the date it was compiled, it would be baseless to contend that the record was compiled out of time. The time that has elapsed before the record of appeal was compiled can be reckoned only if the date of compilation of the record is established. The date the record of this appeal was compiled by the Secretary of the Tribunal is not stated in any part of the record of this appeal. Equally, the date the said record of appeal was served on all the parties is not stated in any part of the record of this appeal and has not been established by the respondents. Therefore the submission of learned counsel for the 1st respondent that the record of appeal was compiled and 14 served on 22-10-15 has no factual basis and is therefore not valid. Learned counsel for the 1st respondent argued that “the appellant’s filed their notice of appeal on the 7th day of October 2015 and by so doing, the record of appeal thus must be compiled and served latest by the 16th day of October 2015” (underlined by me). But the date of receipt of the record of appeal in this court is stated on the face of the record of appeal as 16-10-2015. Paragraph 7 (a) of the said Practice Direction provides that “At the filing of the notice of appeal, the appellant shall pay to the Secretary such fees as he may determine, having regard to the bulk of the record of proceedings which he shall compile”. The record of this appeal shows that the Registrar’s statement states in paragraph (4) that “the appellant’s have fulfilled all necessary conditions for the compilation and transmission of the Record of Appeal.” It is clear from the record of appeal that the notice of this appeal was filed on 7-10-2015. It follows, therefore, from the foregoing that the appellants paid for the compilation and transmission of the record of appeal at the filing of the notice of appeal on 15 7-10-2015 and the record of appeal was received in this court on 16-10-2015, within 9 days of filing the notice of appeal. The 1st respondent failed to show that the record of appeal was compiled and served on the parties herein out of time. Therefore the objection to the jurisdiction of this Court to hear the appeal on the ground that the record of appeal was compiled and served out of time fails as it lacks merit. It is hereby accordingly dismissed. I will now consider the 1st respondents argument that the notice of appeal and the appellant’s brief of argument are incompetent because they do not bear the NBA approved seal/stamp of the legal practitioner who signed them. ?It is not in dispute that the notice of this appeal and the appellant’s brief of argument do not bear the NBA approved seal/stamp of learned counsel, Dr. Yemi Oke, who signed them, contrary to Rule 10 (1) of the 2007 Rules of Professional Conduct for Legal Practitioners which require that a legal practitioner acting as such legal practitioner, legal officer or adviser of any Government Department or ministry or any corporation, who signs or files a legal document must affix on any such document 16 his seal and stamp approved by the Nigerian Bar Association. The said Rule 10 (1) provides that without such seal/stamp the document so signed or filed by the legal practitioner shall be deemed not to have been properly signed or filed. Learned counsel for the 1st respondent relying, on the Supreme Court decision in APC v. Yaki (supra) has urged this court not to deem the said processes as properly filed for the above reason. ?I agree with the submission of learned counsel for the 1st respondent that judicial decisions are not yet settled on the effect of failure to affix the legal practitioner’s seal or stamp on a court process or legal document signed by him as legal practitioner, legal or adviser. We have been informed that there are two conflicting decisions of the Supreme Court on this point. The first one is Mega Progressive Peoples party v. INEC & Ors (SC/665/2015) said to have been delivered on 12th October, 2015 where it is said that the Supreme Court held that the failure to affix the legal practitioner’s seal or stamp on a court process or legal document would not render it improperly signed or filed. The second one is APC v. Yaki’ (supra) cited by 17 learned counsel for the 1st respondent. It was said to have been delivered on 27th October, 2015. Learned Counsel for the 1st respondent submitted that the Supreme Court held that such failure to affix the seal or stamp would render the court process or legal document incompetent. Copies of the judgments have not been made available to us. So we are not in a position to know what was actually decided in those cases. If the two decisions are as we have been informed, then they are clearly in conflict. In the face of two or more conflicting Supreme Court decisions on a point the Supreme Court has repeatedly held that this court and indeed all courts below it are bound to follow its latest decision. See Osakwe v. F.C.E Asaba (2010) 10 NWLR (Pt.1201. Since we have not read the exact text of the said Supreme Court Judgments, we cannot rely on the mere ipse dixit of counsel. As it is we will prefer to determine this issue solely on the basis of Rule 10 (1) of the Rules of Professional Conduct in the Legal Profession. ?In keeping with the said Rule 10 (1) of the Rules of Professional Conduct in the Legal Profession, I hold that the notice of appeal that commenced this 18 appeal and the appellant’s brief of argument are incompetent, invalid and cannot be deemed to have been properly filed. ?The established fact that learned counsel for the appellant has applied for the issuance of the NBA approved seal or stamp to him, cannot qualify the process signed and filed by him in this appeal to be deemed as properly signed or filed. The provisions of Rule 10 (1) of the Rules of Professional Conduct are very clear and unambiguous. What it requires is that the seal or stamp be affixed on the process or document before it can be deemed as properly signed or filed. The submission of learned counsel for the appellant that he has applied for and is yet to be issued his seal or stamp suggests that he is explaining why the notice of appeal and the other processes signed by him do not bear his seal or stamp. Such a submission is not tenable in view of the clear requirement of Rule 10(1) of the Rules of Professional Conduct. The requirement of the Rule is not that the legal practitioner should have the seal or stamp before documents signed by him can be valid. If that was the requirement of the said Rule, then the explanation that he has applied 19 for the issuance of the stamp or seal to him would have been tenable. The requirement is that the court process or other legal document must bear the seal or stamp of the legal practitioner that signed it. So the fact that a legal practitioner possesses the seal or stamp but failed to affix it on the court process or document signed by him would not satisfy the requirement of Rule 10(1) and the process or legal document cannot be deemed to be properly signed or filed. The 1st respondent’s objection succeeds on this ground. I uphold the submission of learned counsel for the 1st respondent that the notice of appeal that commenced this appeal cannot be deemed as properly filed. The result is that it is incompetent and invalid. Since an appeal cannot be founded and sustained on an invalid notice of appeal, then this appeal is incompetent. It is accordingly hereby struck out. See Josiah Cornelius Ltd and Ors v. Ezenwa (1996) LPELR-1632 (SC) and In Re: Osibakoro D. Otuedon (1995) LPELR-1506 (SC). The journey of this appeal clearly ends here. But considering the public interest nature of this case, I have chosen to go further to consider all the issues raised in this 20 appeal including its merit. The 2nd respondent’s objection to ground 1 of this appeal and the first issue for determination in the appellants’ brief of argument on the ground that the said ground 1 is not a complain against any part of the judgment of the Tribunal lacks merit. It is self defeating. In support of his argument that ground 1 does flow from the judgment of the Tribunal, Learned Counsel for the 1st respondent reproduced the main part of the said ground of appeal and the part of the judgment it is complaining against. The portion of the judgment he reproduced clearly exposes some nexus with the complain in ground 1 of this appeal. The main part of the said ground 1. States thusly- “The learned Tribunal erred in law by holding that the Petitioners’ failure to give oral evidence as to the content of the documents tendered and admitted in evidence is fatal to the Petitioners’ case, Contrary to Paragraph 41 (3) of the First Schedule to the Electoral Act 2010 (as amended) ” The portion of the judgment reproduced in the 1st respondent’s brief states thusly- “It is an established principle of law that documentary evidence cannot serve any useful 21 purpose in a trial where there is no oral evidence led by any of the parties explaining its essence. It is the law and we agree that the Tribunal cannot descend into the arena of conflict by assisting the petitioners to examine the documents in Chambers.” It is clear that the appellants relied exclusively on documentary evidence to prove their petition. They did not call any oral evidence to explain the documents. The Tribunal held that the documentary evidence is useless in the absence of any oral evidence explaining their essence. The implication of this holding is that the petitioners failed to prove their case. It is obvious that the Tribunal understood this to be the implication of its said holding as it proceeded to conclusively decide that the petitioners failed to prove their petition, holding that “the petitioners had failed to lead relevant, credible and cogent evidence to sustain the grounds upon which they questioned the declaration of 1st respondent as the duly elected senator of the Lagos West Senatorial District”. Therefore a complain that the Tribunal erred in law for holding that the failure to adduce oral evidence to explain the documents 22 admitted in evidence is fatal to the petitioner’s case, clearly addresses the above decision of the, Tribunal in its judgment. The 1st respondent’s objection is hereby overruled and dismissed. Before I delve in to considering the issues raised for the determination of the merit of this appeal, let me address an issue thrown up by the oral arguments of Learned counsel for the 2nd and 3rd respondents during the argument of this appeal. I have chosen to deal with it before considering the merit of the appeal because it touches on the competence of this appeal. Learned Counsel for the 2nd and 3rd respondents contend that even if this appeal succeeds, it would not change or affect the decision of the Tribunal upholding the preliminary objection that the petition was incompetent on the ground that the votes scored by all the candidates who contested the election were not stated in the petition contrary to Paragraph 4(1) (c) of the First Schedule to the Electoral Act 2010 as amended . Learned counsel for the appellant has argued in reply that the Tribunal did not strike out the petition in furtherance of its said holding and that its said holding became of no moment as 23 it proceeded to determine the merits of the petition. Let me consider the merits of this argument. I will start this consideration by reproducing again the exact text of the said decision of the Tribunal for ease of reference. It states thusly_ We however uphold the objection on the ground that the Petitioners did not comply with the provisions of Paragraph 4(1)(c) of the First Schedule to the Electoral Act, 2010 (as amended) by failing to state the scores of all the candidates that contested the election. We disagree with the view of the petitioners’ counsel that it is sufficient compliance with the said provisions by stating the scores of the 1st Respondent and the 1st Petitioner. It is even difficult to know the scores of the 1st Respondent and the 1st petitioners in view of the disparity in the scores stated in Paragraph 9 of the petition on the one hand and paragraph 12 of the statement on oath of the PW1 on the other. Flowing from this decision the petition ought to be struck out as incompetent, however, we shall determine the petition on its merit in the event that we are wrong in our judgment in this regard. It is glaring that the Tribunal upheld the ?24 objection that the petition was incompetent for not containing the full results declared as required by Paragraph 4(1)(c) of the First Schedule to the Electoral Act . Learned Counsel for the appellant misunderstood the last sentence in the holding reproduced above. It reads thusly-“Flowing from this decision the petition ought to be struck out as incompetent, however, we shall determine the petition on its merit in the event that we are wrong in our judgment in this regard.” I understand the Tribunal to mean that having held the petition incompetent, there would have been no need to go further and the proceedings ought to be terminated at that point, but it would however proceed to consider the merit of the petition, in case its holding is wrong. The fact that the Tribunal out of abundance of caution still considered the merit of the petition after holding that it is incompetent does not reverse or overrule its said holding. Proceeding to determine the merit of the petition was an alternative position. Since its decision is subject to review on appeal to this court, it acted rightly by determining all the issues brought before it including the competence and 25 merit of the petition. This is in keeping with the prevailing judicial practice established by a plethora of Supreme Court decisions that a court below the apex court should pronounce on all the issues arising or raised in a case before it, even if the case had been disposed of by only some of the issues for determination, to avoid the situation where the case would have to be remitted by the apex court to the lower court for retrial of the issues not determined, because the appeal on the only issues determined had been allowed. See 7up Bottling Co. Ltd v. Abiola and Sons Bottling Co. Ltd (2001) 6 SCNJ, Brawal Shipping v. Onwudike Co. (2000) 6 SCNJ 508, Ojobele v. Nabia (1972) 6 SC 27, Atanda v. Ajani (1989) 3 NWLR (pt.111) 571 at 539 (SC) Okonji v. Njokama (1991) 7 NWLR (pt.202) 131 at 150-152 (SC), Titiloye v. Olupo (1991) 7 NWLR (pt.205 519 at 529 (SC) Katto v. CBN (1991) a NWLR (Pt.214) 126 at 149 (SC). This approach was adopted by this court in PDP v. INEC and Ors (2015) 9 CAR 207 at 240 (CA) following the above decision of the Supreme Court. By still proceeding to determine the merit of the petition after holding that the petition was incompetent, the tribunal 26 availed this court the opportunity to consider its decision on the merits of the petition, if it holds that the Tribunal decision that the petition was incompetent is wrong, instead of sending the petition back to the Tribunal for retrial. This approach of the Tribunal helps to avoid piece meal litigation and protect the petitioner’s right to have his case heard on the merit, if it turns out that the view of the Tribunal that the petition is incompetent is wrong after all. The limitation of the time for the hearing and determination of election petitions and appeals to 180 days and 60 days respectively by S. 285(6) and (7) of the Constitution of Federal Republic of Nigeria 1999 makes it imperative for all Tribunals and courts except the apex court to proceed to determine the merit of the petition or appeal even after holding that it is incompetent or that the tribunal or court lacks the jurisdiction to entertain or hear it, to avoid the unfortunate situation, where an appellate court upon deciding that the lower Tribunal or court was wrong in its holding that the petition or appeal was incompetent or that the lower tribunal or court lacks jurisdiction to ?27 entertain it, cannot remit the case to the lower court for trial because the time prescribed for its trial and determination has expired or even if it remits it for trial, the time remaining for the trial of the case would be too short that it renders any meaningful trial impracticable. This has occurred in many cases and exposed the judiciary to disrepute and loss of public confidence in its ability to do Justice in election cases. The consequence of a wrong decision that a petition is incompetent or that the Tribunal lacks the jurisdiction to entertain it, without deciding the merit of the petition as an alternative position can be very grave, as in most cases the approach resulted in the complete destruction of a petitioner’s right to have his petition tried. For the above reasons, I hold that the decision of the Tribunal upholding the objection that the petition is incompetent because it does not contain the full results of the election as declared by the 3rd respondent contrary to Paragraph 4(1)(c) of the First Schedule to the Electoral Act remained subsisting. ý??It is not in dispute that there is no ground of this appeal complaining against the said ý??28 decision. It is trite that the parties to the petition, by failing to appeal against the decision or challenge it by any other legal process, have accepted it as correct and binding upon them. See Biariko and Ors v. Edeh-Ogwuile (2001) 4 SC (Pt.11) 96, S.P.D.C Nig Ltd v. Edamkue and Ors (2009) LPELR-304 (SC), Iyoho v. Effiong (2007) 4 SC (Pt.111) 90 and Amale v. Sokoto Local Government and Ors (2012) LPELR-7842 (SC). I agree with the submission of Learned Counsel for the 2nd and 3rd respondents that the appellants having accepted as correct and binding upon them the tribunal holding that the petition is incompetent, this appeal against the decision of tribunal on the merit of the appeal would obviously serve no useful purpose and amounts to an academic and idle exercise. Where a court or tribunal has held that a case before it is incompetent and proceeds thereafter, in the alternative and out of abundance of caution, in case that holding on appeal is found to be wrong, to determine the merit of the case, he cannot validly appeal against the decision on the merit of the case, if he has accepted the holding that the case is incompetent as correct. The decision on the 29 merits is a mere alternative and contingent decision that has no effect so long as the decision that the petition is incompetent remains correct, valid and subsisting. In any case, generally, where an appeal, even if successful, would not change the legal position of the parties thereto because of the failure to appeal against some other holding, finding or decision on some vital and fundamental issues, the appeal would serve no useful purpose. In the light of the foregoing I hold that this appeal is not valid for this court’s consideration. This is because courts have no jurisdiction to entertain and determine questions that have no utilitarian value. In Nwobosi v. ACB Ltd (1995) 6 NWLR (pt.404) 658 at 681, the Supreme Court held that where the resolution of an issue one way or the other, will be no more than engaging in an academic exercise, a court will not entertain such an issue. See also Global Transport Oceanico SA and Anor v. Free Enterprises Nig Ltd (2001) 2 SC 154 and Agbakoba v. INEC and Ors (2008) LPELR-232 (SC). Let me now consider the two issues for determination in the appellant’s brief of argument. I will determine them together. The evidence 30 adduced by the petitioners in support of their petition consist of the evidence in examination in chief of PW1, contained in his depositions and further depositions, exhibits P1ýto P49 consisting of certified copies and duplicates of originals of the 3rd respondent’s election result forms EC8A(1) for certain polling units of certain wards in the five Local Government Areas of Ikeja, Alimosho, Mushin, Ifako-Ijaiye and Agege to prove the allegation of electoral malpractices, irregularities and manipulation of results whose particulars are copiously pleaded in paragraph 13 of the petition. I have carefully read and considered the evidence of PW1 in his depositions and his evidence under cross examination. In his first deposition he stated in paragraphs 9, 10 and 11 thusly- “9. I aver that the District Elections were held at the various units and results were collated at the unit level, ward level and local Government level with the final declaration and return done by the 3rd Respondent returning officer. The petitioner shall rely on copies produced, marked as Exhibit HSA10 to 12”. 10. I aver that the card readers were used in the District elections across the 31 various Local Governments, wards and units in the conduct of the said elections some of which were preloaded. The petitioner shall rely on copies of the entries produced, marked as Exhibit HSA13. ?11. I aver that at the conclusion of the election, the 3rd respondent declared the 1st respondent the winner of the election to represent the people of the Lagos West Senatorial District in the Federal House of Senate. In paragraph 12 he stated the full results declared by the 3rd respondent. He stated the total votes scored by each candidate and that the 1st respondent was credited with the highest number of votes. He then proceeded to depose in paragraph 15 that the 1st respondent was not duly elected by the majority of lawful and valid votes cast at the election. In paragraphs 15 to 27 of his said deposition, he stated that the unit results in form EC8A(1) for the five Local Government Areas mentioned above are different from the actual votes scored, that in some wards no election took place but results were produced as if elections held, that the results in form EC8A(I) do not tally with the results in Form EC8B and EC8C, that results were doctored and inflated, ?32 that collation of results that ought to be done in the wards were carried out in INEC offices, that the votes cast were more than the accredited voters. The PW1’s said deposition of 17th April, 2015 appear self-contradicting. In Paragraph 9 it states that “the District Elections were held at the various units and results were collated at the unit level, ward level and local Government level with the final declaration and return done by the 3rd Respondent returning officer”, but in paragraph 17 it states that “I aver that there were wards in the above mentioned local government areas where no election was conducted but results were declared for such wards such as ward “E” for Badagry which was created after the election”, and in paragraph 23 it states that ” the collations which were to be carried out in wards were carried out at the INEC offices. It is glaring that the contention in paragraph 15 that the 1st respondent was not elected by majority of lawful votes cast at the election and the assertions of over voting, falsification of results and other malpractices in paragraphs 16 to 27 are defeated by the depositions in paragraphs 9ýto 13 of the same 33 deposition. The evidence of PW1 in the depositions and under cross examination did not explain or demonstrate how each exhibit or group of exhibits show the malpractices like over voting and falsification of results in any particular unit as alleged. The appellants did not adduce evidence through other witnesses, such as the petitioner’s polling agents to show which exhibit support or prove the unlawfulness of the election results and to testify as to the events at the polling units. It is clear from the nature of the evidence adduced by the petitioners that they intended to rely only on the result sheets to challenge the legality or lawfulness of the votes and the subsequent result of the election as contained in the election result forms and not the general conduct of the election. The PW1 who admitted being in his polling unit on the election day, was not in a position to give credible evidence of the events in all other polling units on the same day. Such evidence can only be given by those who participated in and or witnessed the poll in the particular polling unit or ward collation or other collation centres. See Gundiri v. Nyako (2014) 2 NWLR (pt 1391) 34 211- at 245, Doma v. INEC (2012) All FWLR (Pt 629) 813 at 829 and A.C.N v. Nyako (2012) LPELR – 19649 (SC). ?The complain of the appellants in this appeal is that the Tribunal was wrong to have held that “a party relying on documents in proof of its case must ‘ specifically relate each of such documents to specific areas of its case in respect of which the document is being tendered. It is an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties explaining its essence. It is the law and we agree that the Tribunal cannot descend into the arena of conflict by assisting the petitioners to examine the documents in chambers.” Learned counsel for the appellants argued that it is trite law that the best evidence of the contents of a document is the document itself, that the facts in the documents speak for themselves, that moreover, PW1 in his deposition stated facts and tendered documents during his examination in chief on the disparities and irregularities which are reflected in the documents tendered, that the law is clear that a witness is not bound to give oral 35 evidence where documentary evidence would suffice, that the appellants acted in accordance with Paragraph 41(3) of the First Schedule to the Electoral Act 2010, as amended, by simply adopting his deposition as his evidence in examination in chief and tendering the bundle of certified copies and duplicate copies of election results in forms EC8A(1), that election documents are public documents, that the best evidence of a public document is the document itself or its certified copy, that any person can tender a certified copy of a public document in evidence and not necessarily the public officer who has custody of it, that it is settled law that once a public document is certified and signed as required by S. 105 of the 2011 Evidence Act it is admissible upon production and its custody need not be proven, that the certified copies of the forms EC8A from 3rd respondent were rightly admitted, that the duplicate copies of the said forms received from the polling agents were not challenged or contradicted by the respondents and that the documents were not dumped on the Tribunal, but were carefully analyzed to support the case of the appellants as articulated and 36 pleaded in their petition. Learned counsel for the respondents argued that the illegality or unlawfulness of the votes and the result of the poll in each polling unit cannot be proven on the basis of the duplicate copies of the result Forms EC8A (1) and certified copies of same without oral evidence showing which exhibit amongst the bundle of electoral documents support a particular allegation such as over voting or falsification of result. Learned counsel for the 1st respondent restated the fact that the appellants tendered result forms from thousands of polling units across the aforementioned five Local Government Areas through one witness, PW1, as exhibits P1(1-24) to P49(1-306) in several bundles without relating the exhibits to each aspect of their case as pleaded in the petition. It is the contention of the respondents that by not relating the exhibits to each aspect of their case in the petition, the appellants dumped the bundles of documents on the Tribunal and that the task of sorting out which exhibit relates to what allegation can not be done by the court, even though the bundle of documents are evidence before it and that it is a duty the petitioners 37 must perform as part of their legal duty to prove their case. Learned Counsel for the appellants has correctly stated the law on the admissibility of the said documents. Let me add that the duplicate copies of the polling unit result in form EC8A (1) handed over by a polling agent to his candidate in the election is an original copy of the result, being a counterpart copy of the top copy. It constitutes primary evidence of the polling unit result. Learned counsel also correctly restated the law on the admissibility of oral evidence of the content of a document. The issue here is not one of admissibility of the said bundles of documents. The issue here is whether a court or Tribunal has a duty to examine the bundles of documents to find out how they relate to the case of the party who tendered them, where the party who relied on them to prove his case has not sorted them out and has not shown how each of the documents supports any aspect of his case. The rule that has developed through the cases is that the court should not engage itself in the task of sorting out the bundles of documentary evidence before it, examine same and determine its relationship with the 38 case before it. The reason for this rule is to avoid a situation where the court ends up assisting a party in the presentation of his case against the other party or puts itself in a situation where it can reasonably be perceived to be doing so. This rule ensures the equality of arms of the parties in the case before the court. It is a rule of fair hearing that seem to provide an exception to another rule of fair hearing that a court must consider all the evidence adduced by both sides in the case. This rule therefore postulates that the court should not consider bundles of documentary evidence whose relationship with the case has not been explained by the party that produced them, to avoid helping a party present its case. The Supreme Court laid down this rule in a long line of cases. In Jalingo v. Nyame (1992) 3 NWLR (Pt 231) 538 the Supreme Court held that “A party relying on document in proof of his case must specifically relate each of such documents to specific area of his case in respect of which the document is being tendered. It will be an infraction of fair hearing for the court to do in its chambers, what a party has not himself done in advancement of 39 his case in open court”. The supreme court again in Ucha v. Elechi (2012) 13 NWLR (pt.1317) 330 at 360 held that “PW 115, the 1st petitioner/appellant, it was he that tendered all the election documents relevant in this case, to wit: forms EC8A, EC8B, EC8C, EC8D, EC8E. Exhibits p.95 p.139. He dumped them on the tribunal and did not tie his evidence to the pages and paragraphs he wanted the tribunal to use in evaluating his evidence”. “I cannot agree more with the above. When a party decides to rely on documents to prove his case, there must be a link between the document and the specific area/s of the petition. He must relate each document that was tendered. On no account must counsel dump documents on a trial court. No court would spend precious judicial time linking documents to specific areas of a party’s case see ANPP v. INEC (2010) 13 NWLR (Pt. 1212) p. 549. A Judge is to descend from his heavenly abode, no lower than the treetops, to resolve earthly disputes and return to the supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a Judge abandons that duty and starts looking for ?40 irregularities in electoral documents, investigating documents, and in investigation documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.” In Action Congress of Nigeria v. Lamido (2012) All FWLR (pt. 630) 1316, (2012) 8 NWLR (Pt.1303) 560 – 585 at 592 the apex court also held that- “The basic aim of tendering documents in bulk is to ensure speedy trial and hearing of election petition. But that does not exclude proper evidence to prop such dormant documents. It is not the duty of a court or tribunal to embark upon cloistered justice by making enquiries into the case outside the open court not even by examination of documents which were in evidence but not examined in the open court. A judge is an adjudicator, not an investigator. The appellant other than tendering those documents, did not endeavour through its witnesses to link them up with the specific areas of the petition. Needless to restate that it was not the duty of trial tribunal judges to undertake that assignment in the comfort of their chambers. The law is trite that the tendering of a document by a party and the ?41 purport for which it is tendered cannot be left a subject of speculation. Learned counsel for the appellants made an important submission that in his written final address before the Tribunal he carefully and thoroughly analyzed the bundles of results demonstrating how the various exhibits support the various aspects of the case of the appellants. There is no doubt that counsel can address the court on the evidence before it explaining the effect of the evidence on the case of his client including drawing inferences from the content of the documents in evidence before the court. Such as address, ordinarily serves to explain the relationship between the pieces of evidence to the various aspects of the case of a party subject to the law that he should not by such address introduce the address not led by the parties. Where an address alleges events or matters not contained in any evidence before the court, it will be disregarded. In our present case, the above judicial authorities require that where the documents are solely relied on to prove the unlawfulness of votes and election result, the explanation of the relationship between the bundles of documents and the 42 appellants’ case as pleaded in their petition must be by oral evidence. It is obvious that the address of counsel cannot take the place of such evidence. The principle that a document speaks for itself is of limited application in proving the unlawfulness of votes or election results. This is because of the judicially established requirement that to prove unlawfulness of votes and results both the election documents and the testimonies of witnesses must be relied on. In ABUBAKAR v. YAR’ADUA (2008) 19 NWLR (PT. 120) page 1 at 173 the Supreme Court per Niki Tobi JSC held that- “A petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all necessary documents by way of forms and other documents used at the election. He should not stop there. He must call witnesses to testify that the illegality or unlawfulness substantially affected the result of the election. The documents are amongst those in which the results of the votes are recorded. The witnesses are those who saw it all on the day of the election not those who picked the evidence from an eyewitness. No they must be eye-witnesses 43 too.” It further held at page 173 paras. F-G that “Both forms and witnesses are vital for contesting the legality or lawfulness of the votes and the subsequent result of the election. One cannot be substitute for the other. It is not enough for the petitioner to tender only the documents. It is incumbent on him to lead evidence in respect of the wrong doings or irregularities both in the conduct of the election and recordings of votes; wrong doings and irregularities, which affected substantially the result of the election.” In BUHARI v. OBASANJO (2005) 13 NWLR (Pt.941) 1 at 317 the Supreme Court per AKINTAN JSC held that-,”The position of the law regarding the type of evidence which must be led in support of allegations in which figures or scores of candidates at an election are being challenged should come direct from the officers who on the field where the votes were counted and/or collated. As I stated earlier above, Bisi Lawal (PW1) was the Ogun State party agent of the 2nd appellant/crossrespondent political party.The figures he gave the court below in his evidence were brought to him by his party’s polling agents sent to the various polling stations. None 44 of these party agents was called to testify and confirm the figures since they should be the makers of the forms on which the figures given were written. It follows therefore that the evidence given by the said PW1 on the figures and relied on by the lower court was totally inadmissible because it is hearsay evidence. The court below was therefore wrong in relying on the figures.” In ACN v. Nyako (2013) All FWLR (pt.686) 424 at 480-481, para. G-F, the Supreme Court held that- It is the failure of the appellant to call a witness to provide the necessary nexus between the documentary evidence tendered and the particular purpose or aspect of the case of the party tendering same that makes the difference between the notion of dumping exhibits on the one hand, and tendering bulk exhibits, on the other. See the case of Buhari v. INEC (2008) 12 SC 1 contrary to the submission by the learned appellant’s Counsel, in the instant case at hand none of the documents tendered were linked to the oral evidence as rightly submitted by the 1st and 2nd Respondents’ learned counsel. The appellant owed it a duty to have related instances of noncompliance to the documentary evidence tendered. 45 This they had failed to do. The case of Audu v. I.N.E.C (No. 2) (2010) 13 NWLR (Pt. 1212) 456 is relevant in point. There is nothing in the depositions of the witnesses tying the documents with allegations made in the petition. None of the witnesses also mentioned any of the documents dumped on the tribunal. It is not also the duty of the Tribunal to sort out any document on its own for purpose of linking same to the evidence before it to ensure that the credibility and reliability of the evidence ascertained and applied towards the just determination of the case. A judge, as rightly held, is an adjudicator and not an investigator and is therefore not permitted to undertake the kind of examination urged upon the tribunal by the appellant. ?In the light of the foregoing, I resolve the two issues for determination in favour of the respondents. On the whole this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the Lagos state National and States Houses of Assembly Election Tribunal delivered on 18-9-2015 in Election Petition No NA/LEGH/EPT/L/8/2015 is hereby affirmed and upheld. The appellants shall pay costs of One Hundred Thousand naira 46 to the 1st and 2nd respondents. ý IGNATIUS IGWE AGUBE, J.C.A. : I have been privileged to read the comprehensive and erudite Lead Judgment of my Learned Brother E.A. Agim, JCA and am in total agreement with his reasoning and conclusions on all the issues raised. ý??I also agree that this Appeal is unmeritorious and same is accordingly dismissed. I abide by the consequential order as to costs. SAIDU TANKO HUSAINI, J.C.A. : I am privileged to have read before now in draft the lead Judgment just delivered by mu Lord, Emmanuel Akomaye Agim, JCA with whom I completely agree that this Appeal lacks merit. Permit me my Lords to add a word or two of my own on this very important issue as it relates to the provision which requires the Petitioner in his Petition to state the scores made by all candidates who contested any given election. This provision is enacted at Paragraph 4(1)(c) of the First Schedule to the Electoral Act 2010 (as amended) and same provides thus: “4(1) An Election Petition under this Act shall- (a) xxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxx (c) State the holding of the election, the scores of the candidates and the person returned as the winner of the 47 election…” The issue of appellant’s non-compliance to this provision came up before the lower Tribunal when the respondents by the Preliminary Objection taken by them contended that the Petitioners failed to observe that provision of the law. The lower Tribunal had no difficulty in upholding the objection of the Respondents when it held that: “We however uphold the objection on the ground that the Petitioners did not comply with the provisions of Paragraph 4 (1)(c) of the First Schedule to the Electoral Act 2010 (as amended) by failing to state the scores of all the candidates that contested the election… Flowing from this decision the Petition ought to be struck out as incompetent, however we shall determine the petition on its merit in the event that we are wrong in our judgment in this regard…” There has been no appeal against this aspect of the finding of fact in the Tribunal’s Judgment. A finding of fact against which there is no appeal remains binding and conclusive. It is the law that any finding of facts made by a trial Court for which there is no appeal remain valid and subsisting. In otherwords, where a trial Court makes crucial findings of fact 48 on an issue before it and upon which the Judgment of the Court is made and such findings are not appealed against or challenged on appeal such findings remain valid and are deemed admitted by the Appellant or the party against whom they were made and the Appellate Court will be right to act on it. See: Ebemighe v. Chi (2011) 2 NWLR (Pt. 1230) 65; Amoshima v. State (2011) 14 NWLR (pt. 1268) 530; L. H. A. B. U. M. B. v. Anyip (2011) 12 NWLR (Pt. 1260) 1; CPC v. INEC (2011) 18 NWLR (pt. 1279) 493; SPDCN Ltd. v. Ejebu (2011) 17 NWLR (Pt. 1276) 324. It is of no consequence that because the Tribunal proceeded to hear the Petition on the merit, that earlier finding made by it was no longer valid or relevant. lt is, so far as the finding was a subsisting finding of the tribunal, this Court can act on it to dismiss the appeal. Reasons are not far-fetched why the lower Tribunal proceeded to hear the Petition on the merit. It is out of abundance of caution. The Tribunal in addressing the merit of the Petition considered evidence elicited by parties on both sides including Exhibits tendered by them in reaching the conclusion that the Petitioners/Appellants herein had 49 failed to discharge the burden of proof on them in that they failed to establish any evidence of corrupt practices, non-compliance or non-qualification with the provisions of the Electoral Act, 2010 (as amended). It can be recalled that at the hearing of the petition the only witness called and who testified in support of the petition is the evidence of the 1st Petitioner, Hon. Segun Adewale, the 1st Appellant herein through whom certain duplicate copies of election results were tendered and admitted before the lower Tribunal as Exhibits. Those Exhibits or documents are in the main election results collated from different election units. They were also made or authenticated by different persons. Although the Appellants as Petitioners at the Tribunal have no obligation to call any particular number of witnesses or a host of witnesses, what he has obligation to do is to call such material witness or witnesses he requires to prove his case and if one credible witness is all that he requires to make his case, so be it. See: Osasuwa v. Isibor (2004) 3 NWLR (Pt. 859) 16; Ako v. Akona (2005) 11 NWLR (Pt.935) 150; AD v. Fayose (2005) 10 NWLR (Pt.932) 151. From the 50 evidence presented at the Tribunal, the 1st Petitioner/Appellant, was not all over the places on the day the Senatorial election took place. Evidence revealed that he was only confined to his own ward at the material time the Senatorial election took place. The question is whether himself could have tendered those documents or Exhibits as he did or give evidence in respect of those other wards relative to the election to which allegations of corrupt practices falsification and irregularity were made. Decisions in Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, 317; Hashidu v. Goje (2003) 15 NWLR (Pt. 843) 352, 399- 400; Abubakar v. Yar’adua (2008) 19 NWLR (Pt. 1120) 1, 173; Osigwelem v. INEC (2011) 9 NWLR (Pt. 1253) 425,451; Alao v. Akana (2005) 11 NWLR (Pt. 934) 160; Gundiri v. Nyako (2014) 2 NWLR (Pt. 1591) 211, 245; Doma v. INEC (2012) All FWLR (Pt.628) 813,829, all go to show that he cannot, as such evidence from him would amount to hearsay evidence of documentary type. In other words evidence of some other persons who are makers of those documents and who have personal knowledge of the contents of those documents are relevant and must be called. In the ?51 absence of such evidence being elicited, the Petitioners cannot in my view be said have discharged the burden of proof on them as required by law under Section 136 of the Evidence Act, 2011 as to allegations of corrupt practices among others. Looked at therefore from both angles either from the perspective of the objection taken against the validity of the election Petition at the Tribunal or from the perspective of the hearing on the merits, the Petition is one that is destined to fail. It is for these and the more comprehensive reasoning and conclusions contained in the lead Judgment that I too will dismiss this appeal and I so order. I abide by all other consequential orders in the lead Judgment. Appearances Dr. Yemi Oke with Sampson Ozah Esq. and Mariam Momoh For Appellants R.A.O. Adegoke Esq. with Azeez Bakare For 1st Respondent ? Dr. Muiz Banire SAN with Omotayo Olatubosun Esq., Adebayo Badmus Esq. and Damilola Asuni Esq. For 2nd Respondent E.R. Emukpoeruo Esq. with Oluwaseun Olusiyi (Miss) For 3rd Respondent 52> Appearances Dr. Yemi Oke with Sampson Ozah Esq. and Mariam Momoh For Appellant AND R.A.O. Adegoke Esq. with Azeez Bakare for the 1st Respondent. Dr. Muiz Banire SAN with Omotayo Olatubosun Esq., Adebayo Badmus Esq. and Damilola Asuni Esq. for the 2nd Respondent. E.R. Emukpoeruo Esq. with Oluwaseun Olusiyi (Miss) for the 3rd Respondent. For Respondent

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