HON. ODE FRANK IGBE & ANOR. V. DR. JOSEPH ADOGA ONA & ORS.
(2012)LCN/5374(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of May, 2012
CA/MK/EPT/17/2012
RATIO
ELECTION PETITION: BURDEN OF PROVING ACT OF MULTIPLE VOTING/THUMB PRINTING
In ANPP vs Na-Allah (2009) ALL FWLR (Pt.492, 197, 1213, 1214 it was held that only expert oral evidence could prove that the finger prints appearing on the Exhibit, belong to one and the same person thereby leading to unlawful thumb printing alleged.
Secondly, the act of multiple voting/thumb printing is an electoral offence which must be proved beyond reasonable doubt before the tribunal can use such allegation to annul result of an election.
In such case, it must also be proved that the party whose election is challenged aided or abetted the multiple voting/thumb-printing. Those elements must be proved when crime is involved.”
Allegations of multiple voting and thumb-printing are some of the most notorious form of electoral malpractices in Nigeria. They are the most disgraceful and dishonest acts that should be condemned in its entire ramification, they are illegal acts. And no person involved in any form of immoral or illegal acts or transactions shall be allowed to come to court to seek redress. “No polluted hand shall touch the pure foundation of justice:
An allegation of multiple voting and thumb-printing during an election amounts to an allegation of criminal act and the petitioner who makes such allegations has the onus to prove the allegation beyond all reasonable doubt as provided by Section 138 of the Evidence Act. PER MOHAMMED LADAN TSAMIYA, J.C.A
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. HON. ODE FRANK IGBE
2. PEOPLES DEMOCRATIC PARTY (PDP) Appellant(s)
AND
1. DR. JOSEPH ADOGA ONA
2. ACTION CONGRESS OF NIGERIA (ACN)
3. THE PRESIDENT ELECTORAL COMMISSIONER INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) BENUE STATE
4. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A: (Delivering the Leading Judgment): This is an appeal against the decision of the National/State House of Assembly Election petition Tribunal (herein referred to as the tribunal) sitting at Makurdi, delivered on 19/03/2012 in Petition No: NSHA/BN/HA/45/2011. The petition was dismissed.
The brief facts leading to this appeal is that, the appellants (as the petitioners before the tribunal) filed a joint petition against the respondents on 30/09/2011, challenging the declaration and return of the 1st respondent as the duly elected member representing Oju I state constituency in Benue state House of Assembly in the election conducted by the 3rd and 4th respondents on 10/09/2011. The 1st respondent was sponsored in the said election by the 2nd respondent (Action Congress of Nigeria ‘CAN’), while the 1st appellant was sponsored by the 2nd appellant (Peoples Democratic Party ‘PDP’).
The appellants challenged the declaration and return of the 1st respondent on the following grounds:-
i. Failure by the first respondent to properly disengage from Benue State University, being a public service of State of the Federation of Nigeria.
ii. Dual Membership by first respondent to two political parties, to wit People’s Democratic Party (PDP) and Action Congress of Nigeria (ACN), at the same time, being the time of the election.
iii. That the first respondent was not duly elected by majority of lawful votes cast at the election, which was won by the 1st petitioner by majority of lawful votes.
iv. That the election in the designated polling units within the constituency under challenge was invalidated by reasons of non-compliance with mandatory provisions of Electoral Act, 2010 (as amended), Manual for Electoral Officials and violation of the provisions of the Constitution of Nigeria, 1999 (as amended).
On the receipt of the petition the respondents filed their respective replies to the petition as shown on pages 136 – 208 and 223 – 235 of the records while the appellants filed replies to the replies of the 1st and 2nd respondents as per pages 256 – 281 of the record shown.
With the leave of the Tribunal, the appellants amended their petition and the petition, thereafter, went into trial after pre-trial conference hearings. At the trial the appellants called a total number of 11 witnesses and tendered Exhibits B – AA, while the 1st respondent called 5 witnesses and tendered Exhibits R1-R9. The 2nd respondent did not call any witness to give evidence on its behalf and tendered no document as Exhibit. The 3rd and 4th respondents also called no witness but tendered Exhibits R10-R13 from the bar as their attempt to call witnesses on their behalf aborted.
After hearing the respective Counsels’ addresses’ the tribunal delivered its decision on the said 19/03/2012 in which it dismissed the petition of the appellants as shown on pages 667-702 of the record.
It is against the decision of the tribunal that the appellants appealed to this court through their notice of appeal filed on 04/04/2012 containing 12 grounds of appeal, seeking the relief contained in paragraph 4 there of the notice of appeal.
In accordance with the rules of this court both parties filed their respective briefs. The appellant filed their appellants’ brief of argument on 25/04/2012. On receipt of the 1st respondent’s briefs, the appellants filed their reply to the 1st respondents brief on 08/05/2012.The 1st respondent’s brief with the leave of this Court filed his brief on 04/05/2012 which was deemed as properly filed and served with effect from 14/05/2012. The 2nd respondents filed their brief on 14/05/2012 which was deemed filed with effect from 14/05/2012. The 3rd and 4th respondents’ on their part filed their brief of argument on 2nd may 2012.
It should be noted that the 2nd respondent filed a Notice of Preliminary Objection on 10/05/2012 but filed his argument on 14/05/2012. Being not in accordance with the Rules of this Court the Preliminary Objection was dismissed.
During the hearing of this appeal, each Counsel adopted and relied on the brief, filed on behalf of his client. In the appellants’ brief, 9 issues were formulated for determination in this appeal as follows:-
1. Whether the lower tribunal was right in its approach to the signatures of presiding officers in Form EC8A(1) vis-a-vis its view on section 63(2) and 139(1) of the Electoral Act 2010 (as amended) and its conclusion there on that aspect of non-compliance does not produce contrary effect to the result of the election.(Grounds 4 -7).
2. Whether the tribunal was right when it failed to consider and accord weight to the evidence of PW1 PW8 and PW10 on the ground that their testimonies were not credible. (Ground 2).
3. Whether the tribunal was right when it held that there was proper accreditation in all except for polling units under challenge.
4. Whether the tribunal was right when it held that PW9 and PW11 not being experts could not prove allegations that finger prints of some voters were not captured in the voters’ register. (Ground 8).
5. Whether the tribunal was right when it held that allegations of ineligibility founded or based on non-captured finger prints in the voters’ registers are not sustainable under Electoral Act 2010 (as amended)- (Ground 9).
6. Whether the tribunal was right when it held that appellants failed to prove allegations of multiple voting or thumb printing as required by law. (Ground 10).
7. Whether the tribunal was right when it discountenanced Exhibit Z and Z1 as proof of death of the persons in the circumstances of this petition’ (Ground 11).
8. Whether the tribunal was right to have dismissed the petition of the appellants on ground of failure to prove allegations of non-compliance in the polling units under challenge except Omua II pray ground, Ibilla Ilache, Edumoga open space and Omu-open space (ground I).
9. Whether the decision of the tribunal can be supported having regard to the weight of the evidence adduced before it – (Ground 12).
“Whether the tribunal was not right in law in her findings of facts and her judgment that the appellants failed to prove that the 1st respondent’s election was invalid by reasons of substantial non-compliance and irregularities and inconsistence with the Electoral Act and Electoral Official’s manual to warrant the reliefs sought by the appellants’
The 2nd respondent was not left out, because it raised two issues in its brief of argument for determination in this appeal and they are:-
1. Whether this can interfere with the decision of the tribunal in view of the specific findings of the tribunal which were not challenged and or appealed against.
2. Whether the tribunal have properly held that the appellants have not been able to prove substantial non-compliance with the Electoral Act and the manual which non-compliance substantially affects the results.
The 3rd and 4th respondents were able to raise only one issue for determination in this appeal, and the issue reads:-
“Whether the tribunal was right when it held that the appellants have not proved that the election was not conducted in compliance with the provisions of the Electoral Act 2010 (as amended).
Taking into consideration the circumstances of this appeal, including the grounds of appeal, issues as formulated by the parties, I am of the view that the issues formulated by the appellants are apt and direct and therefore I shall determine this appeal on the issues formulated by the appellants.
ISSUE NO: 1- the complaint of the appellants under this is that the tribunal misconceived the law in its judgment when it decided that the signature of the presiding officers on Form EC8A(1) are not mandatory having regard to the provisions of Section 63(2) and 139(1) of the Electoral Act (supra), more so that the parties, agents endorsed all the forms as authentic. They submitted that contrary to the tribunal’s view, the correct position of the law is that Section 63(2) of the said Electoral Act commands all presiding officers not only to write their names on all forms EC8A(i) but to stamp and sign same. They further submitted that by the above express provisions of the Section, the signature and stamp by presiding officers are mandatory and that signatures of political parties’ agent cannot validate any form not duly signed and stamped by the presiding officers. The appellants also submitted that had the tribunal averted its mind to the proper position of the law, and discounted the votes from polling units challenged above, it would have arrived at a different conclusion that the 1st appellant and not the 1st respondent had majority of lawful votes at the election. They urged this Court to resolve this issue in their favour, and allow the appeal on said issue.
In his reaction, the 1st respondent contended that the appellants misconceived the purpose and intent of Section 138 and 139 of the said Electoral Act, because this allegation of non-signing of INEC Forms are all bordered on omission of INEC staff in respect of certain directives which are not substantial non-compliance with any particular provisions of the said Electoral Act. That this complains of absence of presiding officer’s signature has not been shown by the appellants to have substantially affected the collation and declaration of results of the election where the 1st respondent emerged the winner, He urges this Court to resolve this issue in their favour and dismiss the appeal.
The 2nd respondent attacked the competence of this issue in response and submitted this issue of signature of presiding officers do not flow from the grounds 4, 5, 6 and 7 filed to it, while ground 5 remotely mentioned the issue but the ratio of the decision was never questioned. That the ground is lump together with other grounds in formulating the issue and thus it is made incompetent.
The 3rd and 4th respondents in their brief contended that the non-signature of the presiding officers did not in anyway affect the result of the election; they urged this Court to hold that there was substantial compliance with the provisions of the said Electoral Act.
Having stated the submissions of both parties to this appeal, I have examined the forms complained against and the registers of voters used in the conduct of the election in dispute. These forms were part of documents tendered by the appellants in the tribunal to proof their allegations of non-compliance. From these forms I have observed that few of them do not carry the signatures of the respective presiding officers but their full names were endorsed therein. The question that naturally follows is what should be the effect of failure of some presiding officers to sign and stamp such forms (Form EC8A(i) when such presiding officers endorsed their full names for authenticity of such forms and the agents of political candidates also signed the said forms?
In the appellants’ argument, they contended that the failure to sign and stamp such forms EC8A(i) is mandatory by virtue of Section 63(2) of the Electoral Act 2010 (as amended) and that failure amount to a non-compliance with the Electoral provisions which vitiates or invalidates the result of election from any affected polling unit. But the respondent holds a contrary view, and further contended that such failure had no effect on the result of the election.
The answer to the above question is provided by the provisions of Section 63(2) of the said Electoral Act. It says:-
“63(1) ……………
(2) The form (i.e. EC8A(i) shall be signed and stamped by the presiding officer and counter signed by the candidates or their polling agents where available at the polling unit”
A careful reading of this provision one may say that there is nothing in it that makes it mandatory provided it is read together with the provision with section 139(1) of the same Electoral Act. The purpose of signature of a presiding officer on such form is to do away with any imputation of ill motive that could be attached to the authenticity of the result. Since the agents to the candidates to the election signed the forms, it cannot be seriously argued that the documents were not authenticated as correct because the signature of the presiding officer was absent. It should be noted that where one did not have his signature on a document that required his signature, that person is free to endorse or authenticate any document by writing his full names thereon.
From my examination of the documents in dispute, I observed that the forms were signed but some presiding officers decided, instead of signing they decided to stamp the forms on the certification column and at the same time endorsed their full names therein. By this act I do not think any bad motive could be inferred. Accordingly, the act of non signing the forms as provided by the provision of section 63(2) (supra) may be a non-compliance but which, in the circumstances of this case, produced no contrary effect to the result of the election. I cannot hold otherwise but to agree with the tribunal that it is a mere innocuous omission, This issue is resolved against the appellants and in favour of the respondents. The tribunal therefore was right to have held that aspect of non-compliance does not produce contrary effect to the result of the election.
Issue No:2: the grudge of the appellants under this issue is on the tribunal’s failure to consider and accord weight to the evidence of PW1 – PW8 and PW10 because their testimonies were not credible. This issue is tied to ground no: 2 on the notice of appeal. The appellants contended that the tribunal was therefore wrong. The reason advanced is that the testimonies of these witnesses are direct, positive and related to what they did, and so their evidence is in line with Section 115 and 126(a) and (b) of the Evidence Act 2011.
In response, respondents submitted that the tribunal amply examined and evaluated the evidence of these witnesses before coming to the conclusion that their evidence did not prove the irregularities and non-compliance complained of with credibility to warrant invalidating the election.
In its judgment, the tribunal after a critical analysis and examination of the evidence of PW1 – PW8 and PW10 held that these witnesses gave no credible testimonies on which the allegation of multiple voting/thumb-printing, voting by ineligible voters, non-accreditation or lack of accreditation of voters, allotting of votes cast for other political parties in the election for 1st respondent and voting without voters register can be anchored.
The above finding of the tribunal in my view is wrong, because, as submitted by the appellant’s counsel, these witnesses gave evidence on what they saw with their eyes. Be that as it may, I have examined and evaluated their evidence but found that their evidence could not affect the decision of the tribunal.
This issue therefore is resolved in favour of the appellants and against the respondents.
Issue No:3. Under this issue the complaint of the appellant is that the tribunal was wrong when it held that there was proper accreditation in all except four polling units under challenge. The reason advanced is that they called PW11 and PW9 and these witnesses gave cogent and credible evidence of non-accreditation as required by law, They also tendered Exhibits B-V3 particularly Exhibits E-E6, 1-1 (12), M-M7 and Q – Q3 which are voters register to prove the allegation of non accreditation. They urged this Court to resolve this issue in their favour.
The respondents in their separate briefs all contended that the issue of accreditation of voters in the election in dispute was adequately dealt with in line with the evidence before the tribunal, both oral and documentary and the tribunal took each ward, polling unit by polling unit and juxtaposed the same with voters, registers from such polling unit along with forms EC8A(i). Thereafter the tribunal found that only four polling units have the allegation sustained. The tribunal also proceeded to set out the respective scores of the parties after the analysis and finally arrived at its conclusion. See page 698 paragraphs 2 and pages 700 – 707 of their record.
I have examined the evidence on record adduced by the appellants to prove the allegation of non-accreditation, my examination of all the evidence adduced by the appellants, including forms EC8A(i) of all the polling stations strongly confirm that accreditation of voters were done in all the polling stations challenged except four and these four polling units are:
1. Omua 11 Polling station
2. Ibilla Lache Polling station
3. Edumoga open space, and
4. Omu open space of Ukpa/Ainu Ette ward.
The accreditation in these four areas must be regarded as non-compliance but without evidence showing that such non-compliance substantially affected the result of the election. Therefore, to answer the question under this issue No:3, the tribunal was right when it held that there was a proper accreditation in all except four polling units under challenge. This issue therefore is resolved against the appellants and in favour of the respondents.
Issue No:4: The contention of the appellants under this issue is that the tribunal was wrong when it held that PW9 and PW11 not being experts, their evidence could not prove allegation that finger-prints of some voters were not captured in the voters registers, The reason advanced is that, they gave evidence not as experts or persons knowledgeable in electoral process who conducted inspection on electoral materials used for the conduct of the election. That their evidence and reports were therefore not given as those of opinion of experts but as product of what they did and observed during inspections. They further contended that the evidence of PW9 and PW11 on the finger-prints of the voters in the voters register are credible and does not amount to conclusion as held by the tribunal.
The tribunal in its judgment found that the evidence of PW9 and PW11 to the effect that voters whose finger prints were not captured were ineligible voters. This finding in my view is wrong. The evidence of PW9 and PW11 was on what they observed in the roles they played in the inspection of electoral materials. Therefore their evidence was like the evidence of a person knowledgeable in electoral process who conducted inspection on electoral materials used for the conduction of the election. Consequently, I see no reason why the tribunal failed to accord weight to their evidence and the Exhibits tendered through them.
It is established that the fact that a witness did not participate in an election and the fact that he is not an expert in election matters or petition would not render incredible testimony as per his inspection of electoral documents. See Aregbesola Vs Oyinlola (2011) 9 NWLR (Pt.1253) 48.
This Issue No:4 is therefore in favour of appellants and against the respondents.
Issue No:5:- Under this issue, the appellants contended that the tribunal was not right to have held that allegations of ineligibility founded or based, on non-captured finger-prints in the voters, registers are not sustainable under the Electoral Act 2010 (as amended)
The respondents contended that non-capturing of finger-prints in the voters register is not sustainable because by the provision of Section 49(2) of the Electoral Act, the presiding officers have the discretion to allow a person to be accredited and vote if he is satisfied that the person is a registered voter, and the presiding officer exercise that discretion judiciously and they urge this Court to so hold’
In order to answer the question under this issue, I need to refer to the legal authorities relating to how a person can validly vote at an election. By virtue of Section 49 of the Electoral Act 2010 (as amended) every person intending to vote shall present himself to a presiding officer at the polling unit in the constituency in which his name is registered with his voter’s card, and the presiding officer shall, on being satisfied that the name of the person is on the register of voters, issue him a ballot paper, and indicate on the register that the person had voted. In other words the section vests every presiding officer with the power and duty to ensure and be satisfied with the identity of every person who presents himself to him as registered voter intending to vote before issuing him with a ballot paper. The presiding officer is required to do this by comparing the names on the voter’s card presented to him with the names on the register of voters in his possession.
Sequel to the above provision, the “manual for election officials” which contains the guidelines, that the said officials which included a presiding officer, should follow in identifying who is a valid or eligible voter, as provided in the guideline as follows:
“chapter, 3.2. – (3) & 4 say:
3. Check the register of voter to confirm that the voter’s name, photo, and voters identification number (VIN) as contained on the voter’s card is in the register of voters.
4. Tick to the left of the name of the voter, if the person’s name is on the register of voters.”
From the above provision of the Electoral Act (2010) (as amended) and the guidelines, one could see clearly that allegation of ineligibility, as alleged by the appellants, founded or based on non-captured finger-prints in the voters’ register are not maintainable or sustainable by the tribunal or court, in the election petition.
The discretion to allow a person to vote was granted by the law, which discretion was exercised according to the Electoral Act and the manual for election officials. Once the presiding officer in his discretion becomes satisfied that the prospective voter meets all the requirements of registration prescribed in the provisions of Section 49(2) then that prospective voter becomes eligible to vote.
In view of what I said above under this issue, the answer to this issue is that the tribunal was right to hold that allegations of ineligibility founded or based on non-captured finger prints in the voters’ registers are not sustainable under the Electoral Act 2010 (as amended).
Therefore, this issue is resolved against the appellants and in favour of the respondents.
Issue No:6:- under this issue the complaint of the appellant is that the tribunal was wrong when it held that appellants failed to prove allegations of multiple voting and or thumb-printing as required by law. The reasons advanced are that the testimonies of their witnesses namely PW1 – PW9 and PW11, together with Exhibit AA and all the other Exhibits tendered, particularly the voters’ registers and ballot papers satisfied the requirement of proof of multiple voting/thumb-printing beyond reasonable doubt as required
by law.
From the record, one of the appellants’ allegation is on multiple voting and or thumb-printing. To prove this aspect of allegation, PW9 and PW11 and other witnesses together with Exhibits were before the tribunal, and the tribunal after examining them held:-
The last allegation of non-compliance as pleaded in the petition is that of multiple voting/thumb printing, To prove this aspect of allegation PW9 testified that the serial numbers of the ballot papers involved were set out. PW11 also specified serial numbers of some ballot papers to prove allegation of multiple voting/thumb printing. The petitioners also tendered ail the ballot papers used for the election in the polling stations they complained of. The question now, is how should allegation of multiple voting/thumb printing be proved as a matter of law?
In ANPP vs Na-Allah (2009) ALL FWLR (Pt.492, 197, 1213, 1214 it was held that only expert oral evidence could prove that the finger prints appearing on the Exhibit, belong to one and the same person thereby leading to unlawful thumb printing alleged.
Secondly, the act of multiple voting/thumb printing is an electoral offence which must be proved beyond reasonable doubt before the tribunal can use such allegation to annul result of an election.
In such case, it must also be proved that the party whose election is challenged aided or abetted the multiple voting/thumb-printing. Those elements must be proved when crime is involved.”
Allegations of multiple voting and thumb-printing are some of the most notorious form of electoral malpractices in Nigeria. They are the most disgraceful and dishonest acts that should be condemned in its entire ramification, they are illegal acts. And no person involved in any form of immoral or illegal acts or transactions shall be allowed to come to court to seek redress. “No polluted hand shall touch the pure foundation of justice:
An allegation of multiple voting and thumb-printing during an election amounts to an allegation of criminal act and the petitioner who makes such allegations has the onus to prove the allegation beyond all reasonable doubt as provided by Section 138 of the Evidence Act. In the instant case, the appellants called PW1 – PW9 and PW11 together with Exhibits tendered all to prove the allegations.
I have gone through their testimonies as well as the Exhibits tendered and I am of the view that none was able to prove the two allegations successfully. To prove such allegation as an eye-witness account is required and not only that, the eye witness must be disinterested persons for their evidence to be credible and acceptable to the court/tribunal.
Similarly, since the allegations are multiple voting and thumb-printing, only experts oral evidence could prove that the finger prints appearing on the Exhibits belong to one and the same person thereby leading to the unlawful thumb-printing alleged. In the instant case, none of the appellants’ witnesses especially PW9 and PW11 are such experts. They themselves admitted that they are not, Therefore I am of the view that the appellants were not able to convince us to interfere with the findings of the tribunal under this issue. The findings of the tribunal that the appellants failed to prove their allegations of multiple voting and thumb-printing as required by law is upheld and affirmed, this issue also is resolved against the appellants and in favour of the respondents.
Issue No:7: The appellants, under this issue contended that the tribunal was not right when it discountenanced Exhibits Z and Z1 as proof of death of the persons in the circumstances of this petition. They reasoned their contention by the fact that PW10 is the said deceased family member who gave evidence of the death. They therefore contended that Exhibits Z and Z1 deserve weight and have established the allegations that the deceased persons who died and were buried before the election were ticked as having voted at the relevant polling unit.
In its judgment, at pages 699 – 700 of the record, the tribunal held:-
“Lastly, petitioners tendered Exhibits Z – Z1 of two persons said to have died but whose names were ticked as having voted. Without wasting time on this issue we do not attach any weight to Exhibits Z and Z1 as proof of death of such persons. If such persons died before the election in which case, they did not vote, they ought to be evidence from close relations of those persons who would have brought their voters cards to enable the tribunal compare the photographs on the cards with the ones in the voters register in order to come to the conclusion that the names in the voters register indeed refer to such persons. The allegation was therefore not proved”
I have examined these Exhibits and found that in the circumstances and in the interest of justice these Exhibits Z and Z1 ought to be admitted and be given weight, and accordingly they are admitted and are given weight by this court. However, the weight given to them will not change the decision of the tribunal because they only relate to two votes and if the two are deducted from the result of the 1st respondent’s result, the decision of the tribunal will not change.
Be that as it may, the tribunal was wrong to have discountenanced Exhibits Z – Z1. Consequently its findings on Exhibits Z – Z1 are set aside and the issue is resolved in favour of the appellants and against the respondents.
Issue No: 8 and 9:- these two issues were argued together. The appellants in substance under these two issues are contending that the tribunal was wrong to have dismissed their petition on ground of failure to prove their allegations of non-compliance in the polling units under challenge except the four units and should not be affirmed. Their reason is that they abundantly proved both the civil and criminal aspects of their petition but the tribunal failed to avert its mind to it in arriving at its conclusion. They contended that if the illegal votes complained of are deducted from the alleged votes of the parties the 1st appellant will score majority of lawful votes at the election. They contended that the decision of the tribunal, therefore is unwarranted and cannot be legally supported having regard to the weight of the admissible evidence before the tribunal.
The respondents contended that the appellants have failed woefully to prove before the tribunal the allegations of irregularities and non-compliance with the requirements of the Electoral Act to have warranted the tribunal to nullify the election of the 1st respondent and grant the appellants’ reliefs.
They further contended that the tribunal had properly evaluated the evidence before it, before it arrived to its decision.
Practically all the Electoral Laws enacted in the country from independence to date provide for sanctions or remedies for failure to comply with the laws and rules made pursuant to them.
Section 139(i) of the Electoral Act 2010 (as amended) provides as follows: – an election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election.
For a petitioner who alleges non-compliance to succeed in having the result of an election nullified he must satisfy the court or the tribunal that the non-compliance is substantial and the non-compliance substantially affects the result of the election. The position is based on the eventual principle that he who asserts must prove. See Yusuf vs. Obasanjo (2005) 18 NWLR (Pt.956) 96.
I should point out to the appellants that based on the principle enunciated in Yusuf Vs Obasanio (supra) the tribunal set out the votes scored by each of the contestants in the election at the polling units and made a deduction from the scores credited to each of them at the election and that after deductions in where the allegations of non-compliance were sustained and the 1st respondent still retained the highest or majority number of valid or lawful votes cast at the election, which means that the appellants failed.
In this appeal, the appellants were not able to show cogent reasons for disturbing the findings of the tribunal. I should also remind the appellants that an election by virtue of section 139(i) of the Electoral Act (supra) shall not be invalidated by mere reason that it was not conducted substantially in accordance with the provisions of the Act, it must be shown clearly by evidence that the non-compliance has affected the result of the election.
To this end therefore, these issue is resolved against the appellants and in favour of the respondents.
In the final analysis, having resolved the majority issues in favour of the respondents and against the appellants, this appeal is partially dismissed for lack of merit. The decision of the tribunal dated 19/03/2012 except with regards to issues No: 3, 4 and 7 in petition No: NSHA/EPT/BN/HA/45/2011 is affirmed.
I order no costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have before now read the lead judgment of my learned
Brother, Tsamiya, JCA. I agree with his reasons and conclusion. I too dismiss this appeal with no order for costs.
UCHECHUKWU ONYEMENAM, J.C.A: I agree with the judgment delivered by my learned brother
Mohammed Ladan Tsamiya, JCA., I also dismiss the appeal for lacking in merit and I make no order as to cost.
Appearances
Chief S.O. Agbo (Esq)
E.T. Obi Esq.For Appellant
AND
S.O. Idikwu (Esq)
C.I. Atsor (Mrs.)
S.O. Okpale Esq
G.O. Ezeuoeagwu Esq.
E.P. Echor Esq.
O.A. Momodu Esq. holding brief for
N.D. Ter (Mrs.)For Respondent
