INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & ANOR v. UMANA OKON UMANA & ORS
In The Supreme Court of Nigeria
On Monday, the 15th day of February, 2016
SC.4/2016 (REASONS)
RATIO
ON WHOM RESTS THE BURDEN OF PROVING IRREGULARITIES, CORRUPT PRACTICES AND ACTS OF NON-COMPLIANCE WITH THE PROVISIONS OF THE ELECTORAL ACT, 2010 AS AMENDED
The law is indeed well settled that a Petitioner is required by law to establish his case alleging irregularities, corrupt practices and acts of non-compliance with the provisions of the Electoral Act, 2010 as amended, polling unit by polling unit as stated by this Court in UCHA VS. ELECHI (2012) 13 NWLR (Pt.1317) 330 AT 359. PER MAHMUD MOHAMMED, J.S.C.
JUSTICES
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
Between
- INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
2. RESIDENT ELECTORAL COMMISSIONER, AKWA IBOM STATE Appellant(s)
AND
- UMANA OKON UMANA
2. ALL PROGRESSIVES CONGRESS
3. UDOM GABRIEL EMMANUEL
4. PEOPLES DEMOCRATIC PARTY
5. NIGERIA POLICE FORCE Respondent(s)
CHIMA CENTUS NWEZE, J.S.C. (Delivering the Leading Judgment): The facts of this appeal and those of SC 1/2016, just disposed of now, and indeed, of the other appeals [SC.2/2016; SC.3/2016; SC.6/2016 and SC.7/2016], arose from the events of the election of April 11, 2015. As such, it would not serve any useful purpose restating the same set of facts again in this appeal. I, therefore, adopt the factual narrative, already set out in SC.1/2016.
The appellant formulated three issues which revolve around exhibit 317, the Card Reader Report and proof of acts of non-compliance with the Provisions of the Electoral Act: issues which have been elaborately dealt with in SC.1/2016. I, accordingly, adopt my views and conclusion in the said judgment as my reasons and conclusion in this appeal.
In all, I adopt the reasons for the judgments in SC.1/2016 and SC.3/2016; SC.2/2016 as my reasons for allowing the instant appeal. Appeal allowed. Parties are to bear their costs.
MAHMUD MOHAMMED, J.S.C.: This appeal arose from the Judgment of the Akwa Ibom State Governorship Election Petition Tribunal delivered on 21st October, 2015, which nullified the
Governorship election on 11th April, 2015 in 18 out of the 31 Local Government Area of Akwa Ibom State. On appeal to the Court of Appeal, this judgment of the Election Tribunal was set aside by the Court of Appeal Division and replace the Judgment of the Tribunal with a Judgment nullifying the election in the 31 Local Government Areas of Akwa Ibom State in its judgment delivered on 18th December 2015. This appeal is by the Appellants who were 3rd and 4th Respondents at the Court below. Their Notice of Appeal filed on 29th December 2015 contains 13 grounds of appeal from which 3 issues for the determination of the appeal were identified in the Appellants’ brief of argument. The issues are:
“1. Whether the learned Justices of the Court of Appeal were wrong when they held that the 1st and 2nd Respondents relying on Exhibit 317 the Card Reader Report proved that there were improper accreditation leading to over voting at the election and that the Appellants and 3rd and 4th Respondents tailed to discharge the burden which shitted to them to prove the contrary.
2. Whether the learned Justices of the Court of Appeal having held that the 1st and 2nd Respondents based
their case on Exhibit 317 the Card Reader Report, and that defence placed no reliance on the Register of Voters were wrong when they embarked on speculation as to the number of accredited voters on the Register of voters.
3. Whether the learned Justices of the Court of Appeal were wrong when they held that the 1st and 2nd Respondents proved the alleged acts of non-compliance with the provisions of the Electoral Act, 2010 as amended which substantially affected the result of the election.”
It is observed that in the Election Petition filed on 30th April, 2015, the 1st and 2nd Respondents as Petitioners challenged the election and return of the 3rd Respondent as Governor of Akwa Ibom on 2 main grounds, that is
“(i) The election as invalid by reason of corrupt practices and/or non-compliance with the Provisions of the Electoral Act, 2010 as amended.
(ii) The 1st Respondent was not duly elected by majority of lawful votes at the election.”
From the Judgment of the Election Tribunal, the Tribunal seem to had agreed with the case presented by the Defendants/Respondents to the Petition and essentially dismissed the Petitioners now 1st and 2nd Respondents’ case on
improper accreditation, the electoral malpractices sought to be proved by the introduction of alleged experts evidence on alleged multiple thumb printing of ballot papers by rejecting the evidence of the witnesses called by the Petitioners now 1st and 2nd Respondent. However, the Tribunal relying on the evidence of a few witnesses of the Petitioners who were not in attendance in all the polling units in the State, to cancel or nullify the election in 18 out of 31 Local Government Areas of Akwa Ibom State to give rise to the appeal to the Court of Appeal which allowed the appeal and nullified the entire election in Akwa Ibom State in its judgment of 18th December 2015 now on appeal in this appeal by the Appellants.
The law is indeed well settled that the duty to prove over-voting is on the Petitioners now 1st and 2nd Respondents and to do so the law requires the 1st and 2nd Respondents as Petitioners to tender in evidence the voters registers and statements of result in appropriates form which would show the number of registered accredited voters and the number of actual votes cast at the polling unit. Each document such as Form EC8A from each polling unit must
be related to specified area of the case of the Petitioners in respect of which the documents were put in evidence. The exercise must also show that the figure representing the alleged over-voting if removed from the total votes, would result in victory for the Petitioners. See HARUNA vs. MODIBBO (2004) 16 NWLR (Pt.900) 487 and AUDU VS. INEC (No.2) (2010) 15 NWLR (Pt.1212) 456. The law as it stands therefore, does not allow the determination of over-voting in any election from the Card Readers Report Exhibit 317 showing number of voters accredited and the list of registered voters at the election as was done by the Court below in the present appeal. This was one of errors committed by the Court below resulting in allowing this appeal in my own Judgment delivered on Wednesday 3rd February, 2016.
It is therefore for the above reasons and fuller reasons contained in the Reasons for Judgment prepared and delivered by my learned brother Nweze, JSC., that I also allowed the appeal and promised to give my own reasons for doing so today Monday 15th day of February, 2016.
IBRAHIM TANKO MUHAMMAD, J.S.C.: On Wednesday, 3rd of February, 2016, I agreed with my learned
brother, Nweze, JSC, who delivered the lead judgment, allowing the appeal and reason for doing so adjourned to today.
My learned brother, Nweze JSC, afforded me the opportunity to read before today, the reasons be marshaled for allowing the appeal. I am in agreement with him in his reasoning which I adopt as mine. I have nothing more. I have nothing more to add. I allow the appeal and abide by consequential orders made in the lead reasoning including order on costs.
SULEIMAN GALADIMA, J.S.C.: When this appeal was heard on the 3rd day of February, 2016, this dismissed it. I promised to proffer my reasons today, 15th day of February, 2016.
I have had the opportunity of reading in advance the lead judgment of my learned brother NWEZE JSC, that this appeal be allowed. I entirely agree with him in his reasonings and conclusions leading to allowing this appeal. I do not intend to add more detailed reasons than he had done in the lead judgment l therefore allow the appeal and abide by consequential orders made in the lead judgment including that on cost.
OLABODE RHODES-VIVOUR, J.S.C.: I adopt my reasons in SC.1/2016 and the comprehensive reasoning of my learned
brother, Nweze, JSC in the same appeal which I read in draft. I also allow this appeal.
KUMAI BAYANG AKA’AHS, J.S.C.: I allowed this appeal on 3rd February, 2016. I adopt the same reasons for judgment as stated in SC.2/2016. No order on costs is made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: When we heard this appeal on Wednesday 3rd February 2016. I agreed with the lead judgment of my learned brother, Nweze, JSC that the appeal has merit and I accordingly allowed it. I promised to give my reasons for so doing today, 15th February 2016.
This appeal arose out of the Governorship election held in Akwa Ibom State on 11th April, 2015 wherein the 3rd respondent was returned as the duly elected Governor of the state. It is against the decision of the Court of Appeal delivered on 18th December 2015 setting aside the judgment of the Akwa Ibom State Governorship Election Tribunal delivered on 21st October, 2015, which nullified the election in eighteen Local Government Areas of the State. In its place, the Court of Appeal nullified the election in the entire state and ordered fresh elections. The decision of the trial Tribunal gave rise to several appeals,
namely, SC.1/2016, SC.2/2016, SC.3/2016, SC.6/2016, SC.7/2016 and the instant appeal, SC.4/2016 between the same parties and on substantially similar grounds.
I have had the benefit of reading before now the reasons just proffered by my learned brother, Nweze, JSC for allowing the appeal. I agree entirely and adopt the reasons and conclusions as mine. I abide by all the consequential orders made, inclusive of costs.
Appearances
Dr Onyechi Ikpeazu, OON; SAN; Elder Paul Ananaba, SAN , with Raymond Anyawata; E. A. Ibrahim Effiong; Ijeoma Ukchay (Mrs); Alex Ejesieme; Onyinye Anumonye; Emeka Nri-Ezedi; Emeka Eze; Ogechi Ogbonna; Nwachukwu Ibegbu; Obinna Onya; Chuka Ikpeazu, Julius Mba and Emmanuel Rukari For Appellant
AND
Chief Wole Olanipekun, OFR; SAN; Solomon Umoh, SAN; Dayo Akinlaja, SAN, with Chief Victor Iyanam; Femi Morohundia; Bola Aidi; Austin Otah; Sji Olowolafe, Edet Ating; Benjamin Alabi, Effiong Abia; Ubong Offiong; Olabode Olanipekun; Effiong Oquong; Olubukola
Araromi (Mrs); Aisha Aliyu (Mrs); Bolarinwa Awujoola; C. M, Dioji; F. S. Abioduni Temitope Olanipekun (Miss); Adebayo Majekolagbe; Tolu Adetomiwa; S. O. Enejah; Ademola Oyelayo; Madu Gadzama and Chukwudifu Mbamali;for the 1st and 2nd Respondents
O. D. Dodo, SAN; Chris Uche, SAN; Paul Usoro, SAN; Chief O.E.B. Offiong, SAN; Gordy Uche, SAN,with: Dr. G. O. A. Ogunyomi; Nelson Uzuegbu; Reginald Nwobbi; Nasir A. Dangiri; Isaac Anumudu; Audu Anuga; Dan Abia; James Odiba; Ofombuk Akpabio (Mrs.); Terhemba Gbashima; Utibe Nwoko; Adetola Ibironke (Miss); Obafolahan Ojibara; Mfon Udeme; A. F. Jumbo; Stella Ebrimoni (Miss); Patrick Okoh; Ime Edem-Nse; Samson A. Eigege; Luter I. Atagheri Ginika Ezeoke; Ikechukwu Duru; Yunusa Umaru; Prince Nwafuru; Olatunji Muritala; Emem Umoh (Miss); Ifeanyi Ndumnego; Kanayo Okafor; Emmanuel Okorie; Uzoma Nwosu Iheme; Isaac Nwachukwu; E. J. Imuekemeh (Miss); Olakunle Lawal; Blessing Akinsehinwa; Francis Genesis; Modetus Alozie, Ufedo Tom-Yakubu (Miss); James Ebbi; Francis Nsiegbunam; Ijeoma Nwosu (Miss); Jummai Pam; Chinwendu Nduka-Edede (Miss), and Na-Eema Goje (Miss);for the 3rd Respondent
Tayo Oyetibo, SAN and Adekunle Oyesanya, SAN, with; Dominic Okon; Edet Bassey; Emmanuel Akpan; Nsikak Udoh; Paul Mgbeoma; M. Mene-Josiah; Faruk Khamagam; Onyinye G. Nwagbarra and Jennifer Adole for the 4th Respondent For Respondent
