ALL PROGRESSIVE CONGRESS v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/12852(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/EPT/PRE/1/M3/2019(R)
RATIO
PETITION: ELECTION PETITION
“This Court considered the import of Section 151 of the Electoral Act 2010 (as amended) in the cases:
1. AKINTAYO V. JOLAOYE & ORS (2013) ALL FWLR PT 679 PAGE 1152 AT 1171. 2. SENATOR HOPE UZODINMA V. SENATOR OSITA IZUNASO & 18 ORS. (2015) LPELR-25661 (CA). This Court has also considered the relevance of Section 159 of the Electoral Act 2006 which is in pari materia with Section 151 of the Electoral Act 2010 (as amended) in the case of AREGBESOLA V. OYINLOLA (2009) 14 NWLR PT 1162 PAGE 429 AT 478-479 to the effect that this Court will grant the prayers sought if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition.” PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. ATIKU ABUBAKAR
3. PEOPLES DEMOCRATIC PARTY (PDP)
4. MUHAMMADU BUHARI Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Lead Ruling):
By its Ex parte application, dated and filed 12th March, 2019, the applicant seeks the grant of the following reliefs:
“1. AN ORDER of this Honourable Tribunal granting leave to the Applicant to bring this application before the Pre-Hearing Session and to hear and determine same accordingly; and
2. AN ORDER of this Honourable Tribunal directing the 1st Respondent, its agents and officials to forthwith allow the applicant and/or their representatives and agents to inspect polling documents and obtain Certified True Copies of all polling documents in the custody of the 1st Respondent used for the just concluded presidential election held across Nigeria on 23rd day of February, 2019, for the purpose of defending the petition proposed to be filed by the 2nd and 3rd Respondents named above or any other candidate against the return of the Applicant’s candidate at the said election.
3. AND FOR ANY FURTHER OR OTHER ORDERS as the Honourable Tribunal may deem fit and just to make in the circumstances.
The grounds upon which the application is brought include among others the following:
1. The Applicant is All Progressives Congress (otherwise known as “APC’) a registered political party, that sponsored the 4th Respondent in the Presidential Election held on the 23rd February, 2019 and was returned as the declared winner of the said election on the 27th day of February, 2019.
2. The Peoples Democratic Party (PDP) (3rd Respondent herein) and its candidate (2nd Respondent herein) who also contested the election, are purportedly dissatisfied with the outcome of the said election having lost woefully, and they intend to challenge same, via a petition to be filed shortly in the Tribunal, on which basis they have obtained a similar order as contained in this application;
3. As the Political Party whose candidate was declared the winner of the Election, it is imperative for the Applicant herein, to defend the mandate freely given to the Applicant’s candidate by the electorate, hence this application;
4. The Applicant also needs to inspect and make copies of all the electoral documents used for the Presidential Election held on the 23rd February, 2019, in the custody of the 1st Respondent for the purpose of defending any petition that may be filed against him;
5. It is indeed urgent to bring this applicant before or outside pre-hearing session to afford the applicant adequate time to access all the documents and properly study them for the purpose of preparing replies to the petition proposed to be filed by the proposed petitioners, that is, 2nd and 3rd Respondents, against the return of the applicant as winner of the said election;
6. It is, therefore, impracticable to file and bring the present application during the pre-hearing sessions after the closure of pleading;
7. Leave of this Honourable Court is therefore required to file and bring same outside of the pre-hearing sessions; and;
8. It will be in the interest of justice and fair hearing to grant the reliefs sought in this application.
SCHEDULE TO THE MOTION/APPLICATION
i. All INEC forms ECBA VP, EC8As, EC8Bs, EC8Cs, EC8Ds, and EC8Es, EC40A, EC60 and other electoral forms used in all the polling units, wards, Local Governments, Federal Capital Territory and States in the conduct of the Presidential Election held on the 23rd February, 2019.
ii. All ballot papers used in the conduct of Presidential Election held on the 23rd February, 2019 in respect of all the polling units, wards, Local Governments, Federal Capital Territory and States at the said Presidential Election held on the 23rd February, 2019;
iii. All stubs of ballots papers used for all the polling units, wards, Local Governments, Federal Capital Territory and States in Nigeria in the conduct of the Presidential Election held on the 23rd February, 2019.
iv. All unused ballot papers meant for the conduct or used for all the polling units, wards, Local Governments, Federal Capital Territory and States in the conduct of the Presidential Election held on 23rd February, 2019.
v. All card readers used in the conduct of the Presidential Election held on 23rd February, 2019.
vi. All card reader reports data issued in respect of the Presidential Election held on the 23rd February, 2019.
vii. All voters register used in the Presidential Election held on 23rd February, 2019.
viii. All rejected ballot papers used in the conduct of the Presidential Election held on the 23rd February, 2019.
ix. All tendered ballot papers used in the conduct of the Presidential Election held on the 23rd February, 2019;
x. All actual ballot papers recorded as spoilt in the result of various polling units across Nigeria in the conduct of the Presidential Election held on the 23rd February, 2019.
xi. All incident forms used in respect of the Presidential Election held on the 23rd February, 2019.
xii. All other electoral forms or documents used at the Presidential Election held on the 23rd February, 2019.”
In moving the application the learned counsel to the Applicant, Mr. Olushola A. Dare Esq., referred the Court to the reliefs contained in the motion paper and schedule thereto. He relied on the supporting affidavit containing 15 paragraphs. The learned counsel to the applicant also relied on the written address in support of the application. The learned counsel informed the Court that the application was brought pursuant to Section 151 of the Electoral Act, 2010 (as amended) paragraphs 41(5) (6) and 47 (1) of the 1st schedule to the Electoral Act (as amended) Order 56 Rule 1 of the Federal High Court (Civil Procedure) Rule, 2009; Section 104 of the Evidence Act, 2011 and the inherent powers of the Tribunal.
He submitted that it will be humanly impossible to bring the application during pre-hearing session after the closure of the pleadings, relying on the case of OMIDIRAN V. ETTEH (2011) 3 NWLR PT. 1232 PAGE 471 AT 488 to contend that this Court has the powers to grant the orders sought if satisfied that exceptional circumstances warrant the grant of the orders sought. He submitted that the supporting affidavit disclose cogent and potent reasons for the grant of the orders sought.
This Court considered the import of Section 151 of the Electoral Act 2010 (as amended) in the cases:
1. AKINTAYO V. JOLAOYE & ORS (2013) ALL FWLR PT 679 PAGE 1152 AT 1171.
2. SENATOR HOPE UZODINMA V. SENATOR OSITA IZUNASO & 18 ORS. (2015) LPELR-25661 (CA).
This Court has also considered the relevance of Section 159 of the Electoral Act 2006 which is in pari materia with Section 151 of the Electoral Act 2010 (as amended) in the case of AREGBESOLA V. OYINLOLA (2009) 14 NWLR PT 1162 PAGE 429 AT 478-479 to the effect that this Court will grant the prayers sought if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition.
We have carefully considered the affidavit in support of the ex-parte application, written address of the learned counsel vis a vis the prayers sought on the exparte application, the Court is incline to grant the reliefs sought by the applicant as modified below:
IT IS HEREBY ORDERED AS FOLLOWS:
1. Leave is granted the applicant to bring this application at this stage.
2. The 1st Respondent, shall forthwith allow the Applicant and/or its Representatives to inspect polling documents and obtain certified true copies of all polling documents in the custody of the 1st Respondent used for just concluded Presidential Election to enable the Applicant defend the petition that may be filed by the 2nd and 3rd Respondents.
And that shall be the order of this Court on the Applicant’s application.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I agree.
Appearances:
Olusola A. Dare with him, Thomas OjoFor Appellant(s)
For Respondent(s)
