ATIKU ABUBAKAR & ANOR v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS
(2019)LCN/12799(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/PEPT/1/M/2019(R)
RATIO
INTERPRETATION OF STATUTE: SECTION 151, ELECTORAL ACT 2010
“Section 151 (1) and (2) of the Electoral Act, 2010, as amended. The said Section provides as follows: 151. (1) An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by the election tribunal or the Court if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition. (2) A document other than a document referred to in Subsection (1) of this section relating to an election and which is retained by the Chief National Electoral Commissioner or any other officer of the Commission in accordance with this section shall be open for inspection on an order made by the Election Tribunal or a Court in exercise of its powers to compel the production of documents in legal proceedings. After a careful examination of the Reliefs sought on the motion paper, and a perusal of Section 151 of the Electoral Act 2010, as amended, and the decision of this Court in the cases of; AREGBESOLA v. OYINLOLA (2009) 14 NWLR (PT 1162) 429 at 478- 479; AKINTAYO v. JOLAOYE & ORS (2013) ALL FWLR (PT 679) 1152 @ 1171; SENATOR HOPE UZODINMA v. SENATOR OSITA IZUNASO & 18 ORS (2015) LPELR 25661 (CA).” PER ABDU ABOKI, J.C.A.
JUSTICES:
ABDU ABOKI Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
1. ATIKU ABUBAKAR
2. PEOPLES DEMOCRATIC PARTY (PDP) – Appellant(s)
AND
1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. MUHAMMADU BUHARI
3. ALL PROGRESSIVES CONGRESS (APC) – Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Lead Ruling):
By a Motion Ex parte, filed on the of March 2019, and brought pursuant to Section 6(6)(a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, Section 151 of the Electoral Act, 2010, as amended, Paragraph 47 (1), (2) and (3) of the First Schedule to the Electoral Act, 2010 (as amended), and under the inherent jurisdiction of this Honorable Court, the Applicants herein prayed this Court for the following reliefs:
1. AN ORDER of this Honourable Court granting leave to the Applicants to bring this application before the Pre-Hearing Session and to hear and determine same accordingly.
2. A ORDER of this Honourable Court directing the 1st Respondent, its agents and officials to forthwith and on a day to day allow the Applicants and or their representatives and the agents to inspect, scan and make copies for the use by the Applicants and then to obtain Certified True Copies (CTC) of all polling documents, electoral and other materials in the custody of the 1st Respondent, including but not limited to all the documents listed in the Schedule hereunder, which were used in the conduct of the Presidential Election held across Nigeria on the 21st day of February, 2019 for the purpose of instituting and maintaining an election petition against the outcome of the said 201 Presidential Election.
3. AN ORDER directing the 1st Respondent, its officials/agents to forthwith produce and make available for inspection and scanning by the Applicants, their Solicitors or their agents and to make copies of all polling documents, ballot papers, voter registers, ballot materials and other electoral materials in the custody of the 1st Respondent which were used for the conduct of the Presidential Election held across Nigeria on the 23rd day February, 2019 and particularly all polling documents, electoral and other materials by whatever name called, including but not limited to all the documents listed in the Schedule hereunder, for the purpose of instituting and maintaining an action petition.
4. LEAVE AND ORDER of this Honourable Court directing the 1st Respondent, its officials/agents to forthwith permit the Applicants’ experts or representatives to inspect, scan, forensically audit and make copies of all ballot papers and other electoral materials which were used for the conduct of the Presidential Election held across Nigeria on the 23rd day of February, 2019 for the purpose of instituting and maintaining an election petition.
5. LEAVE AND ORDER of this Honourable Court, permitting experts of the Applicants or representatives to inspect, scan, forensically audit and make copies of Forms EC40A, EC8A, EC8, EC8A VP, EC8C, EC8E, and all other electoral forms and materials including but not limited to ballot papers and voters’ registers and materials used for the conduct of the Presidential Election held across Nigeria on the 21st day of February 2019 for the purpose of instituting and maintaining an election petition.
6. AN ORDER allowing the Applicants to carry out a forensic examination/analysis of the ballot papers, data from card readers, including copying and photocopying of the ballot papers, information stored in the computer servers/backencls/clouds and card readers and thumbprint analysis and to present and/or demonstrate by visual, electronic or documentary or any other means, the results of the forensic examination/analysis at the Court as part of the proceedings.
7. AND for such further or other orders as this Honourable Court may deem fit to make under the circumstances.
The grounds upon which the Motion Ex parte is brought, are as follows:
1. The Applicants were contestants at the Presidential Election held across Nigeria on the 23rd day of February, 2019.
2. The Applicants are dissatisfied with the conduct, results, declarations and return made by the 1st Respondent in the said Presidential Election and desirous of challenging same before this Honourable Court.
3. The Applicants require the documents and materials used for the conduct of the Election especially those set out in the Schedule to this Application which are in the 1st Respondent’s custody, to institute and maintain an election petition.
4. Time is of the essence in the filing of the said petition.
5. Leave of this Honourable Court is required in the circumstances to bring this Application before the Pre- Hearing Session.
6. It is in the interest to grant this Application.
The Motion Ex- parte was supported by a twelve (12) paragraph affidavit, deposed to by one Col. Austin Akobundu (Rtd), the National Organizing Secretary of the 2nd Applicants’ Campaign Organization, of Wadata Plaza, Wuse Zone 5, Abuja, to which was annexed a written address.
In his argument on behalf of the Applicants, Learned Senior Counsel Chief Chris Uche maintained that the Applicants need to bring this application before the Pre- Hearing Session and have it heard and determined.
He opined that Prayers 2 – 6 of the application deals essentially with leave to inspect documents for the purposes of instituting and maintaining an election petition.
Learned Senior Counsel said he is relying on the written address attached to the application and urged the Court to grant the application. He called in aid, the case of AREGBESOLA v. OYINLOLA (2009) 14 NWLR (PT 1162) 429 at 478-479.
When asked by the Court as to whether a forensic audit, examination/analysis of the polling documents and materials amount to inspection of the polling documents, and materials under Section 151(1) and (2) of the Electoral Act, 2010, as amended, the Learned SAN said no.
It is apposite at this juncture to reproduce the provisions of Section 151 (1) and (2) of the Electoral Act, 2010, as amended. The said Section provides as follows: 151.
(1) An order for an inspection of a polling document or an inspection of a document or any other packet in the custody of the Chief National Electoral Commissioner or any other officer of the Commission may be made by the election tribunal or the Court if it is satisfied that the inspection is required for the purpose of instituting, maintaining or defending an election petition.
(2) A document other than a document referred to in Subsection (1) of this section relating to an election and which is retained by the Chief National Electoral Commissioner or any other officer of the Commission in accordance with this section shall be open for inspection on an order made by the Election Tribunal or a Court in exercise of its powers to compel the production of documents in legal proceedings.
After a careful examination of the Reliefs sought on the motion paper, and a perusal of Section 151 of the Electoral Act 2010, as amended, and the decision of this Court in the cases of; AREGBESOLA v. OYINLOLA (2009) 14 NWLR (PT 1162) 429 at 478- 479;
AKINTAYO v. JOLAOYE & ORS (2013) ALL FWLR (PT 679) 1152 @ 1171;
SENATOR HOPE UZODINMA v. SENATOR OSITA IZUNASO & 18 ORS (2015) LPELR 25661 (CA).
IT IS HEREBY ORDERED AS FOLLOWS:
1. Leave is granted the Applicants to bring this application at this stage.
2. The 1st Respondent shall forthwith allow the Applicants and/or their Representatives 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 to enable the Applicants institute and maintain an election petition.
3. Prayers 3, 4, 5 and 6 on the motion are hereby refused.
It is correct that this Court in its previous decisions cited above, permitted the scanning of the Election documents during inspection at this stage, but such scanned documents must be certified by INEC as true copies of the documents in its custody to protect the integrity of the documents in the custody of INEC.
Forensic audit, examination and analysis by forensic experts cannot be regarded as inspection of those documents within the term of Section 151 of the Electoral Act as amended.
The Learned Senior Advocate for the Applicants referred this Court to the case of SENATOR HOPE UZODINMA V. SENATOR OSITA IZUNASO & 18 ORS (2015) LPELR 25661 (CA), where the reliefs sought in the application made by the Respondents in that appeal are almost on all fours with the present application.
The Lower Tribunal in that case granted the pervasive orders sought for under Section 151 of the Electoral Act. The Respondents to the said application appealed to this Court which found that the extensive orders granted to inspect polling documents and sundry other materials which include order of recount of ballot papers, were found to be totally outside the scope of Section 151 of the Electoral Act, as amended. The Court found that in that case, that the orders made violated the rights of the Respondents to fair hearing under Section 36 of the Constitution of Federal Republic of Nigeria 1999, as amended. The orders made in that case by the Lower Tribunal were set aside by this Court and other Orders were made by this Court, within the ambit of Section 151 of the Electoral Act, 2010.
It is worthy of note that the application in the case of UZODINMA v. IZUNASO (SUPRA), was made during trial, and not before the petition was instituted, as in the instant case.
PETER OLABISI IGE, J.C.A.: I agree.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the ruling delivered by my Learned brother, Lord Justice Abdu Aboki, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
Dr. Livy Uzoukwu (SAN), Chief Chris Uche (SAN), P.A. Akubo (SAN), Adebayo Adelodun (SAN) with them, Alex Ejesieme, Kanayo Okafor, Emmanuel Okorie, Chiamaka Anagu, and Isaac Nwachukwu For Appellant(s)
For Respondent(s)
