➥ CASE SUMMARY OF:
Wike Ezenwo Nyesom v. Hon. (Dr.) Dakuku Adol Peterside & Ors. (SC.1002/2015 (REASONS), 12 Feb 2016)
by Branham Chima.
➥ SUBJECT MATTER
Non-compliance with electoral act;
Overvoting,
Composition of panel.
➥ CASE FACT/HISTORY
The appellant, who was sponsored by the 4th respondent (Peoples’ Democratic Party (PDP) was returned elected, having scored the majority of lawful votes cast. The 1st respondent also contested the election on the platform of the 2nd respondent (APC). The 1st and 2nd respondents were dissatisfied with the return of the appellant and consequently filed a petition before the tribunal on the following grounds: That the 2nd respondent was not duly elected by majority or highest number of lawful votes cast at the election; That the election of the 2nd respondent was invalid and unlawful by reason of substantial non-compliance with the provisions of the Electoral Act, 2010 (as amended), manual for election officials 2015, as well as the 1st respondent’s 2015 General Elections approved guidelines and regulations; The election was invalid by reason of corrupt practices.
This is an appeal against the judgment of the Court of Appeal, Abuja Division delivered on 16 December 2015 affirming the judgment of the Rivers State Governorship Election Tribunal (hereinafter referred to as the Tribunal) delivered on 24 October 2015, which nullified the election and return of the appellant as Governor of Rivers State and ordered the conduct of a fresh election.
This appeal was heard on 27 January 2016 after hearing submissions from the learned counsel. I pronounced my judgment allowing the appeal and adjourned till today to give my reasons for allowing the appeal. I now proceed to do so.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether the ruling of the tribunal delivered on 9 September 2015, by a panel constituted with Ambursa J., as chairman when the said chairman did not participate in the hearing of the application, is good in law?
RESOLUTION: IN APPELLANT’S FAVOUR.
A. THE RULING DELIVERED WAS WITHOUT JURISDICTION AS THE PANEL WAS IMPROPERLY CONSTITUTED
[‘In the instant case, Pindiga J., as chairman with Leha J. and Taiwo J., heard the application. The ruling delivered on 9 September 2015 signed by Ambursa J., as chairman and Leha and Taiwo JJ., as members, reviewed the submissions of the learned counsel made at the hearing of the application before dismissing same. There is no doubt that Ambursa J., could not have formed an opinion on the submissions of learned counsel, which he did not hear. In the eyes of the law, only Leha J. and Taiwo J., delivered the ruling. The signature of Ambursa J., on the ruling was invalid. In the case of Sokoto State Govt. v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 466, a similar situation arose where a justice of the Court of Appeal, who did not participate in the hearing of the appeal wrote and delivered a judgment therein. The judgment so delivered was declared a nullity. See also: Ubwa Tiv Traditional Council (2004) 11 NWLR (Pt. 884) 427. The remaining two members of the tribunal who participated in the hearing of the application and delivered opinion therein could not form a quorum in the absence of the chairman who participated in the hearing. The tribunal was not properly constituted for the delivery of the ruling and therefore lacked the competence to do so. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341, (1962) 1 All NLR (Pt. 4) 557. I therefore agree with learned counsel for the appellant that the ruling delivered on 9 September 2015 was without jurisdiction. It is a nullity. It follows that the appellant’s right to fair hearing was breached as there is no resolution of the issues submitted for determination in the said application. Having found that the ruling delivered on 9 September 2015 was a nullity, it constitutes a good ground for setting aside the entire proceeding before the tribunal. However, having regard to the fact that this is an election matter, which is sui generis and time bound and the fact that it would not be possible for the parties to return to the tribunal having regard to the provisions of section 285(6) and (7) of the Constitution of the Federal Republic of Nigeria, 1999, I deem it proper in the interest of justice to consider the appeal on its merit.’]
.
.
II. Was the Court of Appeal right when it came to the conclusion that the election petition meant for service out of jurisdiction, subject matter of the appeal was competently issued and served, such as to cloth the election tribunal with the necessary jurisdiction to entertain the same?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. THE FHC RULES AND THE SHERIFFS AND CIVIL PROCESS ACT IS IN CONFLICT WITH THE ELECTORAL ACT
[‘These provisions, to my mind as well as paragraphs 9 and 10 of the First Schedule, speak to the special nature of election petitions where time is of the essence. I am of the view that paragraphs 6, 7 and 8 adequately provide for the issuance and service of election petitions and do not require further foray into the Federal High Court (CivilProcedure) Rules. I am inclined to agree with learned senior counsel for the respondents that the provisions of sections 97, 98 and 99 of the Sheriffs and Civil Process Act, are not applicable to an election petition and cannot be incorporated into the Federal High Court (Civil Procedure) Rules. The provisions of section 99 of the Sheriffs and Civil Process Act, which gives a defendant not less than thirty days to respond to a writ of summons is clearly in conflict with paragraph 10(2) of the First Schedule, which gives a respondent no more than twenty-one days to file a reply to the petition. I am of the view that if it was the intention of the legislature to make specific rules governing service outside jurisdiction, it would have incorporated same in paragraphs 6 and/or 7 of the First Schedule. I agree with the lower court that the issuance of the petition by the secretary of the tribunal in the circumstances of this case was competent.’]
.
.
III. Did the Court of Appeal come to the right conclusion when it held that the election petition to which no stamp and seal of the Nigerian Bar Association was affixed was cognizable and capable of being entertained and determined?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. THE NON-AFFIXING OF THE NBA STAMP & SEAL IS A MERE IRREGULARITY
[‘With regard to the lack of NBA stamp and seal on the petition, I refer to the recent decision of this court in Gen. Bello Sarkin Yarki v. Senator Abubakar Atiku Bagudu in SC.722/2015 delivered on 13 November 2015, when this court held that the failure to affix the approved seal and stamp of the NBA on a process does not render the process null and void. It is an irregularity that can be cured by an application for extension of time and a deeming order. It is noteworthy that the issue was raised for the first time at the hearing of the appeal. Whereupon, learned senior counsel, Chief Akin Olujinmi SAN, made an oral application to affix his stamp and seal on the petition. Paragraph 53(2) of the First Schedule provides that an application to set aside an election petition or a proceeding resulting therefrom for irregularity or for being a nullity shall not be allowed unless made within a reasonable time and when the party making the application has not taken any fresh step in the proceeding after knowledge of the defect. I am of the view that the issue was raised too late in the day and cannot at this stage vitiate the petition. That would amount to enthroning technicality at the expense of substantial justice. See Abubakar v. Yar’Adua (2008) 1 SC (Pt. II) 77 at 122, lines 25 – 30. These issues are accordingly resolved against the appellant.’]
.
.
IV. Was the Court of Appeal right when it came to the conclusion that the 1st and 2nd respondents/petitioners had the locus standi to present the election petition, subject matter of the appeal?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. THE 1ST & 2ND RESPONDENTS HAD THE LOCUS STANDI TO INSTITUTE THE PETITION
[‘Clearly, even at first glance, the 1st and 2nd respondents, being the candidate in the election and the political party that sponsored him respectively, have an interest in the subject matter of the petition. Paragraphs 1, 2 and 3 of the petition bear this out: “1. Your 1st petitioner – Honourable (Dr.) Dakuku Adol Peterside was the sponsored candidate of the 2nd petitioner, All Progressives Congress (hereinafter otherwise referred to as “APC”) at the Rivers State Governorship election held on 11 and 12 April 2015, in Rivers State and the 1st petitioner claims to have had a right to be returned at the election. 2. Your 1st petitioner was the candidate of APC at the aforementioned election of 11 and 12 April 2015 and also participated fully in all the processes and stages leading to the election and has the legal right to be returned as the Governor of Rivers State. The 2nd petitioner, All Progressives Congress (APC) is one of the registered political parties in Nigeria and the political party that sponsored the 1st petitioner in the election, subject matter of this action. 3. Your petitioner states that the 2nd respondent was wrongfully declared the winner of the aforementioned election and unduly returned as the Governor of Rivers State” Beyond this, the issue has been fully settled by this court in its recent decision in: Shinkafi v. Yari SC 907/2015 delivered on 8 January 2016 and Tarzoor v. Ortom Ioraer SC 928/2015 delivered on 15 January 2016 that only INEC or a member of the political party concerned who is adversely affected as a result of the inadequate notice is competent to complain of the inadequacy. The finding of the lower court affirming the locus standi of the 1st and 2nd respondents is unassailable. I find no reason to disturb it. This issue is resolved against the appellant.’]
.
.
V. Was the Court of Appeal right when it sustained the reliance placed by the election tribunal on the card reader report tendered in evidence by the petitioners and admitted as exhibit ‘A9’?
RESOLUTION: IN APPELLANT’S FAVOUR.
A. THE RESPONDENTS DID NOT TENDER THE VOTERS’S REGISTER TO PROVE OVERVOTING
[‘What is evident from the excerpts of the testimony of PW49 above is that exhibit A9 cannot be conclusive proof of the number of accredited voters at the election. The witness acknowledged that there are circumstances when the card reader may not read a voter’s PVC, in which case incident forms are used. No incident forms were tendered by the 1st and 2nd respondents. Secondly, that there was an arbitrary 6 week cut-off date set by INEC for the upload of data to the INEC database. Thirdly, as observed by learned senior counsel for the appellant, there was nothing to show that at the time the 1st and 2nd respondents applied for exhibit A9, all the data from the card readers used in the election had been fully uploaded. It is equally interesting to note that exhibit A9 contains a figure of 293,072 accredited voters , which is contrary to the pleading in paragraph 20 of the petition that “not more than 292,878 voters were accredited”.’
‘In order to prove non-accreditation and/or over-voting, the 1st and 2nd respondents were bound to rely on the voters’ registers in respect of all the affected Local Governments. The voters registers tendered were in respect of only 11 out of 23 local governments. They were tendered from the bar as exhibits A271 – A281. No attempt was made to link them with exhibit A9. It is also noteworthy that forms EC8A were tendered in respect of only 15 out of 23 Local Government Areas. An attempt was made to confront some of the defence witnesses with Forms EC8A (exhibits A282 – A300) to show that the number of accredited voters stated therein was in conflict with the number of accredited voters as per exhibit A9. This cannot meet the required standard of proving over-voting, polling unit by polling unit. Furthermore, the voters register could not be jettisoned in the exercise.’]
.
.
VI. Was the Court of Appeal right when it came to the conclusion that the documents tendered by the petitioners were not documentary hearsay and documents that were merely dumped on the election tribunal and were capable of being relied on for the purpose of proving the election petition?
RESOLUTION: IN APPELLANT’S FAVOUR.
A. THE EXHIBITS TENDERED FROM THE BAR WITHOUT THEIR MAKERS CALLED IS DOCUMENTARY HEARSAY
[‘In any event, as rightly submitted by learned counsel for the appellant, the tendering of exhibits A9, A10, A12 – A31, A32 – A270, A271 – A281, A282 – A300, A301, A303 – A307, B30 and B31, from the bar, without their makers being called, amounted to documentary hearsay and the tribunal and the lower court were wrong in placing reliance on them. I am of the view and I do hold that the tribunal and the lower court were unduly swayed by the INEC directives on the use of the card readers. As held by this court, the INEC directives, guidelines and manual cannot be elevated above the provisions of the Electoral Act as to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantive Electoral Act. These issues are accordingly resolved in favour of the appellant.’]
.
.
VII. Was the Court of Appeal right when it came to the conclusion that the petitioners’ ground for the petition which included non-compliance with manual for election officials 2015 and general elections approved guidelines and regulations was within the purview of section 138(1)(b) of the Electoral Act, 2010 (as amended)?
RESOLUTION: IN APPELLANT’S FAVOUR.
A. BREACH OF INEC MANUAL OR GUIDELINES IS NOT A GROUND FOR QUESTIONING AN ELECTION
[‘The above provisions appear to be quite clear and unambiguous. While the Electoral Commission is duly conferred with powers to issue regulations, guidelines or manuals for the smooth conduct of elections, by section 138(2) of the Act, so long as an act or omission regarding such regulations or guidelines is not contrary to the provisions of the Act itself, it shall not of itself be a ground for questioning the election. In the instant case, one of the complaints of the 1st and 2nd respondents is that there was deliberate non-use of the card reader machines in the election. However, as this court has held, the use of the card reader has not done away with manual accreditation provided for in section 49 of the Act. It follows therefore that the inclusion of non-compliance with the manual for election officials 2015 as well as INEC’s 2015 General Elections approved guidelines in the circumstances of this case is improper. This issue is accordingly resolved in the appellant’s favour.’]
.
.
IIX. Whether failure to follow the manual or guidelines have the effect of rendering the election void and whether there is a conflict between section 49 and 52(1)(b) of the Electoral Act on the one hand and the manual for election officials 2015 and the approved guidelines and regulations made by INEC?
RESOLUTION: IN RESPONDENT’S FAVOUR.
A. FAILURE TO FOLLOW THE GUIDELINES OR MANUAL OF INEC IN THE CONDUCT OF ELECTION IS NOT A GROUND TO ANNUL AN ELECTION
[‘I must say that I am not in agreement with learned senior counsel for the appellant on this issue. Section 52(1)(b) of the Electoral Act prohibits the use of electronic voting machine for the time being. It is pertinent to note that the card reader is used in the accreditation process, and not for voting. Furthermore, it has been acknowledged throughout this judgment that the innovation of the use of the card reader was to aid in the transparent conduct of elections. As noted by the court below at pages 2999 – 3000 of volume 5 of the record, reproduced in paragraph 9.24 of the 2nd respondent’s brief, section 57 of the Electoral Act, provides INEC with authority to authenticate the identity of a voter when he presents himself to cast his vote. In the course of resolving issues 6, 7 and 8, I held that failure to follow the manual and guidelines, which were made in exercise of the powers conferred by the Electoral Act, cannot, in and of itself, render the election void. However, this should not be understood to mean that the innovation of the card reader is in conflict with relevant sections of the Electoral Act.’]
.
.
IX. Was the Court of Appeal right when it came to the conclusion that the evidence in the election petition was properly evaluated by the election tribunal and that the petitioners were entitled to judgment?
RESOLUTION: IN APPELLANT’S FAVOUR.
A. THE RESPONDENT WITNESSES WERE MAJORLY HEARSAY AND THIRD PARTIES WHO DID NOT SEE THE EVENTS BY THEMSELVES
[‘In order to prove the alleged acts of non-compliance, it was necessary for the petitioners to call witnesses from all the affected polling units to give first hand testimony of what transpired. Out of the 56 witnesses called by the 1st and 2nd respondents, 18 were ward collation agents who received information from polling agents in the various units. Their evidence was not tied to any of the exhibits tendered.’
‘Some of the witnesses (PWs 19, 20, 24 and 35) who were local government collation agents for the 2nd respondent gave sweeping testimony covering four local government areas (Obio Akpor, AsariToro, Tai and Ikwerre) on non-use of card readers, hijacking of materials, illegal thumb-printing of ballot papers, etc. The polling agents from the affected wards were not called to testify. The trial tribunal made special reference to the testimonies of PWs 40, 49, 53 and 54. The evidence of PW49 has been dealt with extensively earlier. PW40 was the head of election and party monitoring department, INEC, Rivers State. He described the election as a sham, warfare, a mockery of democracy. His evidence was that his team monitored elections in 19 local government areas but he later stated that he visited 8 Local Government Areas with three National Commissioners of INEC. The report of the team was admitted as exhibit A2. He however admitted under cross-examination that he did not personally visit all the Local Government Areas. He also admitted that election officers reported the hijacking of materials to the team when they visited but he did not witness hijacking of materials himself (page 23 of Vol. 4). I am inclined to agree with learned senior counsel for the appellant that the evidence of PW40 cannot take the place of polling agents or voters who were disenfranchised.’
‘PW53, a State collation agent for the 2nd respondent admitted under cross-examination that he did not witness the hijacking of materials but was so informed by his agents. He also stated that he was in only one local government collation centre (Ikwerre) and did not visit any other polling unit apart from ward 1, unit 6 (page 2401, Vol.5). Likewise, PW54 (the 1st respondent), whose evidence was said to span the entire petition testified that he never left his local government during the election. He received information through his agents and other sources (page 2408, vol.5). Through him, exhibits A303, A304, A305, A306 and A307 were tendered. These are various election observer reports on the conduct of the election in the State. Not being the maker of these documents, he was not competent to testify in respect thereof. Both the tribunal and the court below made much of the fact that witnesses called by the appellant were discredited under cross- examination and therefore their evidence was unreliable, which therefore gave further impetus to the case of the 1st and 2nd respondents.’]
B. INTER ALIA, THE ALLEGATIONS OF CRIME ALLEGED WERE NOT PROVED BEYOND REASONABLE DOUBT
[‘The 1st and 2nd respondents herein failed to establish the allegation of non-compliance with the provisions of the Electoral Act in the manner enjoined by this court in Ucha v. Elechi , polling unit by polling unit. Voters registers were tendered in respect of only 11 out of 23 Local Government Areas and were not demonstrated before the tribunal. Confronting a few of the defence witnesses with one or two entries does not meet the standard required in this regard. Disenfranchised voters from all the affected polling units ought to have been called to testify. Furthermore, serious allegations of crime were made throughout the length and breadth of the petition, such as hijacking and diversion of election materials, illegal thumb-printing of ballot papers, falsification of results, violent attacks on voters, kidnapping etc. The 1st and 2nd respondents had the burden of proving the allegations beyond reasonable doubt. Where crimes are alleged, the ingredients of the offences must be proved. This they failed to do. None of the alleged perpetrators was joined in the petition.’]
.
.
.
✓ DECISION:
‘Notwithstanding the resolution of issues 3, 4, 5 and 9 against the appellant, I hold that the appellant has shown sufficient reason for this court to interfere with the concurrent findings of the tribunal and the court below. It is for these reasons that I allowed this appeal on 27 January 2016. The judgment of the Court of Appeal, Abuja Division delivered on 16 December 2015 which affirmed the judgment of the Rivers State Governorship Election Tribunal delivered on 24 October 2015 , was accordingly set aside. The petition of the 1st and 2nd respondents is hereby dismissed and the return of the appellant as the duly elected Governor of Rivers State by the 3rd respondent (INEC) restored. Parties shall bear their costs.’
➥ FURTHER DICTA:
⦿ JURISDICTION CAN BE RAISED AT ANYTIME BY THE COURT
The law is well settled that the issue of jurisdiction is so fundamental to adjudication that it can be raised at any stage of the proceedings and even for the first time on appeal to this court. See Usman Dan Fodio University v. Kraus Thompson Ltd (2001) 15 NWLR (Pt. 736) 305; Elabanjo v. Dawodu (2006) All FWLR (Pt. 328) 604, (2006) 15 NWLR (Pt. 1001) 76 115-116 G-A ; PDP v. Okorocha (2012) All FWLR (Pt. 626) 449, (2012) 15 NWLR (Pt. 1323) 205. The issues are therefore competent before this court. — Kekere-Ekun, JSC.
⦿ JUSTICE MUST DELIVER OPINION IN WRITING; APPLIES TO ANY PANEL WITH MORE THAN ONE PANEL
It is evident from this constitutional provision that the intention of the framers of the Constitution is that where a panel of justices hears a cause or matter, each of them must express and deliver his opinion in writing. Such written opinion may however be delivered by any other justice of the court on behalf of a justice who participated in the hearing but is unavoidably absent. The opinion delivered must be the opinion of the justices who participated in the hearing. Even though the provisions of section 294 (1) and (2) refers specifically to; Justices of the Supreme Court and the Court of Appeal, it is my view that the principle is applicable to any court or tribunal that sits in a panel of two or more members. — Kekere-Ekun, JSC.
⦿ ELECTION ARE SUI GENERIS
It is well settled that election matter are sui generis with a special character of their own, quite different from ordinary civil or criminal proceedings. They are governed by their own statutory provisions regulating their practice and procedure. See Hassan v. Aliyu (2010) All FWLR (Pt. 539) 1007, (2010) 17 NWLR (Pt. 1223 ) 547; Ehuwa v. OSIEC (2006) All FWLR (Pt. 298) 1299, (2006) 18 NWLR (Pt. 1012) 544. — Kekere-Ekun, JSC.
⦿ IN ELECTION PETITION, RECOURSE TO THE FHC RULES IS SUBJECT TO THE ELECTORAL ACT
Specifically, any recourse to the Federal High Court (Civil Procedure) Rules must be “subject to the express provisions” of the Act. It follows that it is only where the Electoral Act or First Schedule does not provide for a particular situation that reference would be made to the Federal High Court (Civil Procedure) Rules with necessary modification. — Kekere-Ekun, JSC.
⦿ NATURE OF LOCUS STANDI
Locus standi has been defined as the legal capacity to institute an action in a court of law. Where a plaintiff lacks locus standi to maintain an action, the court will lack the competence to entertain his complaint. It is therefore a threshold issue which affects the jurisdiction of the court. See Daniel v. I NEC (2015) LPELR – SC.757/2013; Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) 669, (1986) 1 NSCC 323; Opobiyi and Anor. v. Layiwola Muniru (2011) 18 NWLR (Pt. 1278) 387 at 403- F. It is also trite that in determining whether a plaintiff has the necessary locus to institute an action, it is his pleadings that would be considered by the court. The claimant must show sufficient interest in the subject matter of the dispute. See Emezi v. Osuagwu (2005) All FWLR (Pt. 259) 1891, (2005) 12 NWLR (Pt. 93) 340; Momoh and Anor. v. Olotu (1970) 1 All NLR 117; Attorney-General, Anambra State v. Attorney-General, Federation and Ors. (2005) All FWLR (Pt. 268) 1557, (2005) 9 NWLR (Pt. 931) 572. — Kekere-Ekun, JSC.
⦿ GROUND TO PROVE OVER VOTING
The law is well settled that in order to prove over-voting, the petitioner must do the following: (i) tender the voters register; (ii) tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes; (iii) relate each of the documents to the specific area of his case in respect of which the documents are tendered; and (iv) show that the figure representing the over-voting if removed would result in victory for the petitioner. See Haruna v. Modibbo (2004) All FWLR (Pt. 238) 740, (2004 ) 16 NWLR (Pt. 900) 487;Kalgo v. Kalgo (1999) 6 NWLR (Pt. 608 ) 639; Audu v. INEC (No. 2) (2010) 13 NWLR (Pt. 1212) 456; Shinkafi v. Yari (unreported) SC.907/2015 delivered on 8/1/2016; Yahaya v. Dankwambo (unreported) SC.979/2015 delivered on 25/1/2016. — Kekere-Ekun, JSC.
⦿ PROVING CORRUPT PRACTICES IN AN ELECTION
Furthermore, where the ground for challenging the return of a candidate in an election is by reason of corrupt practices or non-compliance with the provisions of the Electoral Act, the petitioner must prove: (a) that the corrupt practice or non-compliance took place; and (b) that the corrupt practice or non-compliance substantially affected the result of the election. See Yahaya v. Dankwambo ; Awolowo v. Shagari (1979) All NLR 120, (2001) FWLR (Pt. 73) 53; Buhari v. Obasanjo (2005) All FWLR (Pt. 258) 1604, (2005) 2 NWLR (Pt. 910) 241 and sections 138(1)(b) and 139(1) of the Evidence Act, 2011. — Kekere-Ekun, JSC.
⦿ VOTERS REGISTER CANNOT BE REPLACED BY CARD READER TO PROVE OVERVOTING
This court in a number of recent decisions has commended the introduction of the card reader in the 2015 elections by INEC. The court has noted however, that its function is solely to authenticate the owner of a voter’s card and to prevent multi-voting by a voter and cannot replace the voters register or statement of results in appropriate forms. See Shinkafi v. Yari ; Okereke v. Umahi (unreported) SC.1004/ 2015 delivered on 5/2/2016 at pages 31 – 34. — Kekere-Ekun, JSC.
⦿ INEC GUIDELINES CANNOT BE ELEVATED ABOVE THE ELECTORAL ACT
As held by this court, the INEC directives, guidelines and manual cannot be elevated above the provisions of the Electoral Act as to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantive Electoral Act. These issues are accordingly resolved in favour of the appellant.— Kekere-Ekun, JSC.
⦿ RESULT ANNOUNCED BY INEC IS PRESUMED TO BE CORRECT
The law is trite that the results declared by INEC enjoy a presumption of regularity. In other words, they are prima facie correct. The onus is on the petitioner to prove the contrary. See Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Awolowo v. Shagari (1979 ) 6 – 9 SC 51; Akinfosile v. Ijose (1960) SCNLR 447, (1960) WNLR 160. — Kekere-Ekun, JSC.
⦿ NON-COMPLIANCE MUST BE PROVED POLLING-UNIT BY POLLING-UNIT
Where a petitioner complains of non-compliance with the provisions of the Act, he has an onerous task, for he must prove it polling unit by polling unit, ward by ward and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with as a result of the non-compliance e.g. Forms EC8A, election materials not signed/stamped by presiding officers. It is only then that the respondents are to lead evidence in rebuttal. See Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 359 – G. It is also the law that where the commission of a crime by a party to a proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. See section 135 of the Evidence Act, 2011. The burden of proof is on the person who asserts it. See section 135(2) of the Evidence Act, 2011 . See also: Abubakar v. Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 at 143 – 144 B; Buhari v. Obasanjo ; Omoboriowo v. Ajasin (1984) l SCNLR 108; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374 at 422 – 423 B- C. — Kekere-Ekun, JSC.
⦿ IT IS THE PRIMARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE
There is no doubt that the evaluation of evidence and ascription of probative value thereto are the primary duties of the trial court, which had the singular opportunity of seeing and hearing the witnesses testify and an appellate court would ordinarily not interfere. It is also trite that this court will not interfere with concurrent findings of fact by two lower courts, unless it is shown that the findings are perverse, or not based on a proper and dispassionate appraisal of the evidence, or that there is an error, either of law or fact, which has occasioned a miscarriage of justice. See Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509, (1991) 3 SCNJ 61; Saleh v. BON Ltd (2006) 6 NWLR (Pt. 976) 316 at 329 – 330 – C; Agbaje v. Fashola (2008) All FWLR (Pt. 443) 1302, (2008) 6 NWLR (Pt. 1082) 90 at 153- E. — Kekere-Ekun, JSC.
⦿ DECLARATIVE RELIEFS MUST BE PROVED; EVEN ADMISSION CANNOT MAKE IT SUCCEED
It will be recalled that the 1st and 2nd respondents sought declaratory reliefs before the tribunal. The law is that where a party seeks declaratory reliefs, the burden is on him to succeed on the strength of his own case and not on the weakness of the defence (if any). Such reliefs will not be granted, even on admission. See Emenike v. PDP (2012) All FWLR (Pt. 640) 1261, (2012) LPELR – SC 443/2011 at 27- G;Dumez Ltd v. Nwakhoba (2008) 18 NWLR (Pt. 1119) 361 at 373 – 374, (2009) All FWLR (Pt. 461) 842; Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 230. The 1st and 2nd respondents herein failed to establish the allegation of non-compliance with the provisions of the Electoral Act in the manner enjoined by this court in Ucha v. Elechi , polling unit by polling unit. Voters registers were tendered in respect of only 11 out of 23 Local Government Areas and were not demonstrated before the tribunal. — Kekere-Ekun, JSC.
⦿ JUDICIAL OFFICER WHO DID NOT HEAR A CASE CANNOT GIVE A JUDGEMENT OR JOIN IN GIVING OPINION ON IT
The genesis of what brought about the improper constitution of the tribunal when it sat and delivered a ruling on 9 September 2015, has been clearly set out in the lead reasoning. I only re-iterate the position of the law that a judicial officer of whatever jurisdiction, who did not participate in court in taking proceedings in respect of the suit/case in question, has no legal right or capacity to express an opinion in determining dispute between parties in that suit/case where he did not participate at the hearing level of the suit/case. If he does so, the decision delivered in which such a judicial officer participated is a nullity as the court/tribunal was not properly constituted. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Adeigbe v. Kushimo (1965) All NLR 260 at 263, Sokoto State Govt. v. Kamdex (Nig.) Ltd (2007) 7 NWLR (Pt. 1034) 492 at 497; Ubwa v. Tiv Area Traditional Council (2004) 11 NWLR (Pt. 884) at 4361. If a decision is a nullity, it cannot confer jurisdiction on same court/ tribunal or any other court or tribunal. One cannot put something on nothing and expect it to stand. It will collapse. See Macfoy v. United African Company Ltd (1961) 3 WLR 1405 at 1409, (1962) 5 SCNLR 152. — I.T. Muhammad, JSC.
➥ PARTIES:
⦿ APPELLANT
Wike Ezenwo Nyesom
⦿ RESPONDENT
Hon. (Dr.) Dakuku Adol Peterside & Ors.
➥ LEAD JUDGEMENT DELIVERED BY:
Kekere-ekun, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT
Emmanuel C. Ukala SAN
⦿ FOR THE RESPONDENT
Chief Akin Olujinmi CON, SAN
Yusuf Ali SAN
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 145 of the Electoral Act, provides: “1. The rules of procedure to be adopted for election petitions and appeals arising therefrom shall be as set out in the First Schedule to this Act. 2. The President of the Court of Appeal may issue practice directions to election tribunals.”
Paragraph 54 of the First Schedule also provides thus: “Subject to the express provisions of this Act , the practice and procedure of the tribunal or the court in relation to an election petition shall be as nearly as possible, similar to the practice and procedure of the Federal High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules shall apply with such modifications as may be necessary to render them applicable, having regard to the provisions of this Act , as if the petitioner and the respondent were respectively the plaintiff and the defendant in an ordinary civil action”.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
