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Adegboyega Isiaka Oyetola & Ors. v Independent National Electoral Commission (INEC) & Ors. (2023) – SC

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➥ CASE SUMMARY OF:
Adegboyega Isiaka Oyetola & Ors. v Independent National Electoral Commission (INEC) & Ors. (2023) – SC

by Branham Chima (SAL).

➥ COURT:
Supreme Court – SC/CV/508/2023

➥ JUDGEMENT DELIVERED ON:
Tuesday The 9th Day of May 2023

➥ AREA(S) OF LAW
Proof of over voting;
Forgery of certificate.

➥ PRINCIPLES OF LAW
⦿ HE WHO ASSERTS A FACT HAS THE BURDEN TO PROVE THOSE FACTS
The appellants in their petition desired the Tribunal to give judgment to them granting them the reliefs they claimed on the basis that the facts they assert in their petition exist. Therefore, they had the primary legal burden to prove the existence of those facts by virtue of S.131(1) of the Evidence Act 2011 which provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must” prove that those facts exists.” — E.A. Agim, JSC.

⦿ EVIDENCE REQUIRED FO PROVE VOTES ALLOWED WITHOUT ACCREDITATION
It is glaring from the above reproduced provisions of the Electoral Act and the INEC Regulations and Guidelines that the evidence required to prove that voting was allowed without accreditation or that there was improper accreditation are the Register of Voters, BVAS and the Polling Unit result in Form EC8A and that the evidence required to prove that there was over voting are the record of accredited voters in the BVAS and the Polling Unit result in Form EC8A. — E.A. Agim, JSC.

⦿ PRESIDING OFFICER OF A POLLING UNIT IS NOT MANDATED TO UPLOAD RESULT TO INEC DATABASE
There is no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that requires that the Presiding Officer of the election in a Polling unit transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base or anywhere. This is obvious from all the provisions reproduced above. Equally, there is no part of the Electoral Act and INEC Regulations and Guidelines that require that election result of a polling unit should on the spot during the poll be transmitted to the INEC National Election Register or data base. Rather, the Regulations provide for the BVAS to be used to scan the completed result in Form EC8A and transmit or upload the scanned copy of the polling unit result to the Collation System and INEC Result viewing Portal (IReV). — E.A. Agim, JSC.

⦿ INEC COLLATION SYSTEM VERSUS THE INEC RESULT VIEWING PORTAL
As their names depict, the Collation System and the INEC Result Viewing Portal are part of the election process and play particular roles in that process. The Collation System is made of the centres where results are collated at various stages of the election. So the polling units results transmitted to the collation system provides the relevant collation officer the means to verify a polling unit result as the need arises for the purpose of collation. The results transmitted to the Result Viewing Portal is to give the public at large the opportunity to view the polling unit results on the election day. It is clear from the provisions of Regulation 38(i) and (ii) that the Collation System and Result Viewing Portal are different from the National Electronic Register of Election Results. The Collation System and Result Viewing Portal are operational during the election as part of the process, the National Electronic Register of Election Results is a post election record and is not part of the election process. — E.A. Agim, JSC.

⦿ REGISTER OF VOTERS IS REQUIRED TO PROVE NO ACCREDITATION OF VOTERS
It is clear from the provisions of S.47(1) and (2) of the Electoral Act 2022 and Regulations 14(a) and (b), 18(a) and (b), 19(b) and (e) that the Register of voters for each polling unit is relevant evidence to prove the alleged non accreditations of voters in the 744 polling units on the election day. It is worth stating that in the event of a conflict between the record of accredited voters in the BVAS machine and ticked names in the Register of voters due to human errors in the ticking of the names in the Register of voters, the BVAS Record shall prevail. — E.A. Agim, JSC.

⦿ PW1 (EXPERT ANALYSIS) IS A WITNESS INTERESTED AND HIS EXPERT ANALYSIS WAS MADE DURING LIS PENDENS
The other evidence adduced by the appellants to prove their case is the Expert Analysis Report prepared by PW1, who by his own admission is a member of the 2nd appellant and had been a Special Assistant to the 1st Appellant and was engaged by the appellants to establish the invalidity of the disputed results in Form EC8A for the 744 polling units. He testified further that “I made the report as directed by the Petitioners” and that “ I am part of those who wrote the petition.” By his own testimony, he established that he was not an independent expert as he had an interest in the subject of his analysis and carried out the analysis from the conclusion that the results were invalid, to justify that conclusion to support the contemplated election petition. It was an analysis from an answer and not from a question. Such a report is not the product of an independent, impartial, detached and professional analysis. He is clearly a person with the disposition or temptation to depart from the truth. In Anyaebosi V V.R.T, Briscoe (Nig) Ltd (Supra), this court held that the likelihood that the maker of a report is tainted by the incentive to conceal or misrepresent facts, renders him a person interested. The listing of the Expert Analysis Report in the petition among the documents to be relied on to prove the petition show it was made in anticipation or contemplation of the petition to be filed. The report having been made by PW1 as a person interested in the subject matter of the report when the petition was anticipated to establish that the election result was invalid is not admissible evidence by virtue of Section 83(3) of the Evidence Act, 2011 (as amended) which provides as follows: ‘Nothing in this Section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’ — E.A. Agim, JSC.

Available:  Christopher Ogidi & Ors. v. Muobike Okoli & Ors. [2014] - CA

⦿ JUDGEMENT IN REM
In Oni & Anor V Oyebanji & Ors( SC/CV/398/2023 on 6-4-2023) this court Per Agim JSC restated the law on this concept thusly “As this Court held in Ogboru & Anor v. Uduaghan & Ors (2011) LPELR-8236 (SC) “A judgement in rem may be defined as the judgement of a court of competent jurisdiction determining the status of a person or thing as distinct from the particular interest of a party to the litigation. Apart from the application of the term to persons, it must affect the “res” in the way of condemnation, forfeiture, declaration, status or title. (a) Examples are judgment of a Court over a will creating the status of administration. (b) Judgment in a divorce by a Court of competent jurisdiction dissolving a marriage declaring the nullity or affirming its existence. (c) Judgment in an election petition. The feature of a judgment in rem is that it binds all persons – 36 whether a party to the proceedings or not. It stops anyone from raising the issue of the status of persons or persons or things, or the rights or title to properly litigated before a competent Court. It is indeed conclusive against the entire world in whatever it settles as to status of the person or property. All persons whether party to the proceedings or not are stopped from averring that the status of persons is other than the Court has by such judgement declared or made it to be.” Okpalugo vs. Adeshoye (t996) 10 NELR pt. 476, pg. 77, Fan trades Ltd. vs Uni Association Co. Ltd. (2002) 8 NWLR Pt. 770, pg. 699., Ogbahon vs. Reg. Trustees CCCG (2002) 1 NWLR Pt. 749, pg. 675, Olaniyan vs Fatoki (2003) 13 NWLR pt. 837, Pg. 273. — E.A. Agim, JSC.

⦿ COURT IS OBLIGED TO CONSIDER PRELIMINARY OBJECTIONS AS FAILURE AMOUNTS TO DENIAL OF FAIR HEARING
It is glaring that the Tribunal lumped several preliminary objections together, without considering each of them and the issues raised in each, dismissed them. The exact text of its decision reads thusly – “the several preliminary objections to the competence of the 1st petitioner as a candidate in the election and the jurisdiction of this Tribunal to determine the said petition are hereby dismissed.” This amounts to sweeping aside the objections without hearing or determining them. The dismissal of the objections did not proceed from the determination of any of the objections. It violates the fair trial of the objections and the entire petition and the right of the parties to fair hearing. This feature renders Tribunal’s judgment a nullity. — E.A. Agim, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Emmanuel Akomaye Agim, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT
Prince Lateef O. Fagbemi, SAN.

⦿ FOR THE RESPONDENT
Prof Paul Ananaba SAN.

➥ CASE FACT/HISTORY
This appeal No. SC/CV/508/2023 was commenced on 5-4-22023 when the appellants herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 24-3-2023 in Appeal No. CA/AK/EPT/GOV/01/2023 allowing the appeal to it against the judgment of the Osun State Governorship Election delivered on 27-1-2023 in Petition No. Tribunal EPT/OS/GOV/01/2022 granting the petition of the appellants against the election of the 2nd and 3rd respondents and holding that the petition was proved and that 1st appellant and not the 2nd respondent won the election of Governor of Osun State.

The Court of Appeal set aside the said judgment and restored the election of the 2nd respondent, holding that the appellants failed to prove their petition against the 2nd respondent’s election as Governor of Osun State on 16-7-2022. A notice of cross appeal was equally filed on 6th April 2023 against the judgment of the Court of Appeal dismissing the crossappeal to it against the judgment of the Tribunal.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]

I. Whether the Petitioner/1st Appellant proved his case of over voting at the polling units?

RULING: IN RESPONDENTS FAVOUR.
A. THE BVAS MACHINE WAS NOT PRODUCED TO PROOF OVER VOTING.
“The BVAS devices for each of the 744 polling units which the appellants solely relied on as the basis for grounds 2 and 3 of their petition were not produced and tendered by them as evidence in support of their case. Rather they sought to prove the record of accredited voters in the BVAS devices for each of the 744 polling units by means of a report of the examination of the INEC data base or back end server(exhibit BVR) said to contain the information on the number of accredited voters and number of votes cast in a polling unit transmitted by the BVAS to the said INEC data base during the election on election day. The record in the BVAS machine for each polling unit is the direct and primary record of the number of voters accredited in that polling unit on the election day in the process of the election. It is not in dispute that the disputed polling units results were collated in their respective wards by their Ward Collation Officers. The collation By virtue of Regulation 48(a) of INEC Regulations and Guidelines (supra), a presumption arises from the collation of the polling units results that the number of accredited voters recorded in the result in Form EC8A agrees with the record of accredited voters in the BVAS. The petitioners cannot rebut this presumption without producing the BVAS machines in evidence. Regulation 48(a) INEC Regulations and Guidelines (supra) states what the number of accredited of voters in the result should agree with as “the number recorded in the BVAS”. So it is the number of accredited voters recorded in the BVAS that the number of accredited voters recorded in the result in Form EC8A must be compared with or verified from to determine if there was over voting in a polling unit. For practical purposes and for ease of reference an original or certified true copy of an INEC certificate of the record of number of accredited voters of the BVAS for each polling unit can be produced from an examination of the record of the BVAS machines and tendered in evidence along with the BVAS machines. In any case, Regulation 48(a) having expressly and specifically mentioned the election documents or instrument with which the number of accredited voters recorded in Form EC8A is to agree with or to be compared with, only that document and no other shall be evidence for that purpose.”

Available:  Major General Kayode Oni (Rtd) & Ors v. Governor Of Ekiti State (2019)

B. INEC DATABASE OR SERVER DOES NOT QUALIFY TO PROOF VOTE CASTS
“Exhibit BVR, the report of the examination of the content of the INEC database or back end server containing the number of accredited voters and number of votes cast transmitted by the BVAS for each polling unit to the data base or back end server, does not qualify as the BVAS provided for in Regulation 48(a) and the number recorded therein as extracted from the INEC data base is not the “the number recorded in the BVAS” as provided in Regulation 48(a). There is no part of the Electoral Act or the INEC Regulations and Guidelines for the Conduct of Elections 2022 that makes INEC data base or back end server a part of the accreditation process or record of accredited voters. The INEC data base is a post election record created by S.62 of the Electoral Act 2022 and named therein as the National Election 20 Register of Election Results for the purpose of keeping reliable and verifiable records of past election results polling unit by polling unit.”

C. INEC DATABASE CAN ONLY RECORD WHAT IS TRANSFERRED TO IT THUS CANNOT BE THE BASIS FOR KNOWING VOTES RECORDED
“BVAS to the INEC data base or back end server and that “in the counting of votes cast at the polling unit and the collation of the results of the election, it is the number of accredited voters, votes cast or results transmitted directly from polling units to the data base that should be taken into account” has no support in any of the provisions of the Electoral Act or INEC Regulations (supra). There is no such duty on the Presiding Officer. In any case, the appellants’ two witnesses testified that on the spot electronic transmission of results from BVAS may in some instances be frustrated by lack of internet connectivity, BVAS battery failure and error in pressing the ‘send button’ of the BVAS. So even in the context of the case they presented, the appellants have shown in their pleadings and evidence, that the BVR cannot be a complete and accurate record of the number of voters accredited and of the number of votes cast on the day of poll, 16-7-2022 because it is not the direct record of these numbers and contains only the numbers transmitted to it from the BVAS. So that if the BVAS malfunctions and is unable to instantly transmit as it was recording because of lack of internet connecting, failure of INEC officials to press the submit button properly and loss of power in the battery, what is recorded in the BVAS will not be in the data base. The data base can only contain what is transmitted it from the BVAS at a particular time and not what the BVAS recorded at that time. So by the appellant’s own showing it cannot be a complete and accurate record of those numbers and therefore cannot be relied on to dispute the number of accredited voters recorded in the Form EC8A on the day of poll.”
.
.
II. Qualification or disqualification of the respondent for election as Governor of a State?

RULING: IN RESPONDENTS FAVOUR.
A. THE EARLIER JUDICIAL DECISION CERTIFYING THE RESPONDENT AS QUALIFIED IS BINDING ON THE TRIBUNAL AND COURT OF APPEAL
“The trial Tribunal found that the Ede Muslim High School Leaving Testimonial and Statement of Result presented by the 2nd respondent to show he was educated up to school certificate were forged, after refusing to countenance certified true copies of the judgment of the Court of Appeal in CA/A/362/2019-PDP V Wahab Adekunle Raheem & Ors. (exhibits 2R.RW4) that had decided they were not forged on the ground that they are photocopies of certified true copies of the judgment. It also found that the 2nd respondent qualified for the said election on the basis of other educational qualifications. On appeal, the Court of Appeal held that “The documents tendered by the appellant, Exhibit 2R.RW4 (Judgment CA/A/362/2019) were indeed certified and the same was reported as ADELEKE V. RAHEEM & ORS. (2019) LPELR 48729 (CA). In the circumstance, the appellant’s counsel having acquitted himself of his duty to the Tribunal, it behoves on the Tribunal to not only take judicial notice of the judgment but abide by the pronouncements contained therein. I repeat, that issue transcend beyond the admissibility of the judgment but its binding force on the Tribunal on the basis of stare decisis.”

“The Judgment decided the status of the information from 2nd respondent that he completed secondary education at Ede Muslim High School, Ede and that he sat for the 1981 May/June West African School Certificate Examination in the said School, the status of the School leaving Testimonial and Statement of result of 1981 May/June West African School Certificate Examination issued by at Ede Muslim High School, Ede and decided the said information is true and that the testimonial and statement of result were not forged. The appeal against this decision to this court was dismissed. Although the 1st appellant was not a party in that case, he is bound by the judgment because as rightly submitted by Learned SAN for the 2nd respondent it is a judgment in rem and binds the whole world on the decided issues.”

“The judgment on these issues operate as estoppel per rem judicatam to bar any further suit by anybody on these same issues. Although the appellants were not parties in that case, they are bound by the judgment on those issues and are barred from litigating on them on the principle of estoppels perem judicatam. It equally binds the trial Tribunal and robs it of the jurisdiction to try those issues by virtue of the operation of the same principle of estoppel per rem judicatam. It is an abuse of the process of court to seek to re-litigate an issue that the judgment of this court has judicially determined.”

Available:  Warri Refining & Petrochemical Co. Ltd. v. GECMEP Nigeria Limited (2020)

B. THERE IS NO GROUND OF APPEAL AGAINST THE QUALIFICATION PRONOUNCED BY THE COURT OF APPEAL
“I agree with the argument of Learned SAN for the 3rd respondent that there is no ground of this appeal against the specific finding of the Court of Appeal that Exhibit 2R.RW4( Judgment of Court of Appeal in Appeal No. CA/A/362/2019) tendered in the Tribunal is a certified true copy. By not appealing against it, the appellants accepted it as correct, conclusive and binding upon them and therefore cannot argue against the finding. See See Iyoho v. Effiong (2007) 4 SC(Pt.iii) 90, SPDC Nig Ltd & Anor V X.M Federal Ltd & Anor(2006) 7 SC(Pt.iii) 27 and Dabup V Kolo(1993) 12 SCNJ I.”

C. NO EVIDENCE WAS SHOWN TO ESTABLISH FORGERY OF THE CERTIFICATES
“No evidence was adduced to establish the allegations of forgery of Diploma Certificate of Penn Foster High School and the Bachellor of Science degree in Criminal Justice from Atlanta Metropolitan State College beyond the hearsay testimonies of PW1 and PW2. There is no evidence that the institutions that awarded the 2nd respondents those educational qualifications denied awarding him those qualifications and issuing the certificates. As it is, without the awarding institutions disclaiming them, their authenticity and validity remain intact. This Court in Dantiye V A APC & Ors (SC/CV/627/2020) delivered on 30-102020 held per Augie JSC thusly – “Since this matter revolves around the WAEC results and alleged false information, the only way the facts in issue can be resolved is by evidence from WAEC to the effect that the 2nd defendant is not the owner of the result in dispute and that the result and certificates did not emanate from WAEC to the 2nd defendant in person. The plaintiff in proving his case failed to write to or visit the West African Examination Council to ascertain the true state of things but relied on mere assumptions and speculations. The plaintiff has the burden to establish by credible and cogent evidence that the result does not belong to the 2nd defendant. The burden of proof…. rest squarely on the plaintiff who is alleging false representation……It is the duty of the court to consider and act only on credible evidence and not on speculations or unfounded assumptions. Ebeleke & Ors (judgment in SC/CV/182/2021 of 16-4-2021) following its decision in Dantiye V APC restated the law thusly – “The 1st respondent did not elicit any evidence from WAEC stating that it did not issue those results or that the 2nd respondent did not sit for the said examination and did not obtain the grades in the subjects listed therein. The 1st respondent did not elicit evidence from Uboma Secondary School, Ikperejehe Etiti stating that the signature on exhibit A28 is not that of its principal or that it did not issue exhibit A28 or that the 2nd respondent did not sit for the said examination in that school or that the content of exhibit A28 are false in any respect. Without any of the above evidence, there is no evidential basis for the findings that the results are contradictory, not authentic and false because of the differences.”
.
.
.
✓ DECISION:
“In the light of the foregoing, I hold that the INEC data base or National Electronic Register of Election Results is not relevant evidence in the determination of whether there was non accreditation or over voting or not in an election in a polling unit and cannot be relied on to prove over voting … The appellants did not elicit any admissible and credible oral evidence of non accreditation, improper accreditation in any of the 744 polling units. In their pleading and evidence, the appellants did not state the polling unit where there was no accreditation of voters and did not allege or show how the improper accreditation occurred. So they did not prove the allegation of non accreditation and improper accreditation. It is glaring from the foregoing that the appellants did not adduce relevant and admissible evidence to prove nonaccreditation of voters, improper accreditation of voters and over voting.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)
Section 37, 83(3), 131, 133, Evidence Act 2011;
Section 47, 62(1) Electoral Act 2022;
Rule 38 of the Election Regulations and Guidelines;

➥ REFERENCED (CASE)
⦿ JUDGEMENT IN REM VS JUDGEMENT IN PERSONAM
In Dike & Ors v. Nzeka II & Ors (1986) LPELR – 945 (SC), the Supreme Court held thusly – “It is therefore necessary to have a clear idea of the distinction between a judgment tin rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the Status of some particular thing or subject matter by a tribunal having the jurisdiction and the competence to pronounce on that Status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject-matter whose status or condition is to be determined. It is thus a solemn declaration on the status of some persons or thing. It is therefore binding on all persons in so far as their interests in the status of the property or person are concerned. That is why a judgment in rem is a judgment contra mundum binding on the whole world – parties as well as nonparties. A judgment in personam, on the other hand, is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a particular person or thing. A judgment in personam will be more accurately called a judgment inter partes. A judgment in personam usually creates a personal obligation as it determines the rights of parties inter se to, or in the subject-matter in dispute whether it be land or other corporeal property or liquidated or unliquidated demand, but does not affect the status of either the persons to the dispute or the thing in dispute.”

➥ REFERENCED (OTHERS)

End

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